Lawyers for four former detainees at Guantanamo Bay urged the Supreme Court Monday to face, head-on, the question of whether it is unconstitutional for U.S. officials to torture individuals being held captive.  In a reply brief filed in Rasul, et al., v. Myers, et al., the attorneys for the four Britons argued that the Justice Department is grasping at a mere footnote in a lower court opinion in an attempt to evade Court review of the legality of torture.

“It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights,” the brief said.  “Without this Court’s guidance, the [D.C.] court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.”

Ten days ago, the Justice Department in its brief in the case contended that the Court should not rule on the challenges, since, it said, there was no legal basis for such claims at the time they were at Guantanamo between early 2002 and March 2004.  (A post discussing that brief is here.) Thus, it suggested, the Justices should leave intact the D.C. Circuit ruling that military officials had “qualified immunity” from the damage claims based on alleged torture.

Replying to that maneuver, the detainees’ counsel said the Department, like the D.C. Circuit, had made no attempt to conduct the kind of analysis that is necessary in judging whether a constitutional question can be avoided.  If that analysis had been done correctly, the brief went on, the need to address the answer to the constitutional question had to be addressed before deciding whether it was clearly in being at the time.

The government’s brief “stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it violates fundamental rights; no less so when hidden from public view at Guantanamo Bay,” the detainees’ counsel asserted. 

Further reacting to the government’s claim of immunity for those who allegedly authorized torture, the reply brief said that argument was not put forth in good faith, but rather “reflects a cynical attempt…to create and take advantage of purported ambiguity about whether the rule of law applies at Guantanamo, gambling that they could not be held to account.”

Whether U.S. officials are free to engage “in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.”

The reply brief also sought to counter the government’s alternative argument — that “special factors,”  including the needs of the military, counseled against creating a new constitutional right not to be tortured.  That, the detainees’ lawyers said, was an attempt to turn a brief “buried footnote” in the Circuit Court opinion into a belated argument.  In the government brief, these lawyers argued, “the special factors argument is … diluted to become a banal submission that new causes of action [for constitutional violations] should not be recognized ‘in sensitive circumstances such as these.’ ”

But, if the Court agrees to hear the case, the detainees’ lawyers said, they will be prepared to file full briefs on the merits of why the “special factors” basis for denying relief “is untenable.”

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