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U.S. opposes torture lawsuit

The Obama Administration, taking its first position in a federal court on claims of torture of Guantanamo Bay detainees, urged the D.C. Circuit Court on Thursday to reject a lawsuit by four Britons formerly held there.  In addition, the new filing argued that a recent appeals court ruling makes clear that “aliens held at Guantanamo do not have due process rights.”

Moreover, the document called for a sweeping ban on lawsuits against U.S. military officials, claiming constitutional violations by such officials. Allowing such lawsuits “for actions taken with respect to aliens during wartime,” it said, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”

The brief was another indication that, at least so far, the new Administration is not moving to make a wide-ranging break with detention policies of the former Bush Administration.  While President Obama has ordered the closing of Guantanamo by next January, lawyers for the government have taken positions in a variety of detainee court cases that do not propose fundamental change.

Lawyers for the four former prisoners, in their own new filing, argued that they have constitutional rights that they can assert against former Pentagon officials and officers who, they claim, authorized and carried out torture while the Britons were in captivity.  The lawyers contended that the Constitution’s guarantee of due process applies to those who were held at the U.S. military prison in Cuba.

Both new briefs were filed in Rasul, et al., v. Myers, et al., (D.C. Circuit Court docket 06-5209). The Britons’ brief is here.  The government brief is here.

The Supreme Court last December had ordered the Circuit Court to reconsider the Rasul case, in the wake of the Justices’ ruling last June in Boumediene v. Bush.  The Circuit Court called for new briefs. Each side is to file a reply brief on March 23.

The Rasul lawsuit is aimed at former Defense Secretary Donald Rumsfeld and ten military officers — six generals and four lower-ranking officers.  The prisoners claimed systematic torture and abuse, including disparaging their religion beliefs and practices.

The Circuit Court, in a ruling Jan. 11 of last year, decided that Guantanamo detainees have no constitutional rights because they are “aliens without property or presence in the U.S.”

As an alternative decision, the Circuit Court said that, even if the prisoners did have a constitutional right against torture, such a right was not clear at the time they were prisoners — from January 2002 to March 2004 — and thus the military officials and officers had “qualified immunity” to the lawsuit.  It also ruled that the prisoners were not protected by U.S. law against interference with their religious worship and beliefs.

The Supreme Court’s Boumediene decision nine months ago established that Guantanamo detainees do have a constitutional right — to challenge their detention in federal court.  The Justices left the scope of that right, and claims of any other rights for detainees, to the lower courts to sort out.  Then, in December, it returned the Rasul case for a new look by the Circuit Court, applying the Boumediene decision.

Justice Department lawyers argued Thursday that the Supreme Court decision has no effect on the Circuit Court’s rejection of the Britons’ torture lawsuit.

Because Boumediene was decided four years after the Britons had been released and sent home, the brief contended, it “cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct” violated the Constitution or federal law protecting religious freedom.

As its first recommendation, the brief urged the Circuit Court to resolve the case by leaving its qualified immunity decision intact, insulating Rumsfeld and the officers from legal consequences so far as the four Britons are concerned.  That would make it unnecessary to consider the Britons’ claim of due process rights under the Constitution, the brief said.

But, it went on, if the Circuit Court does address that due process claim, its ruling Feb. 18 in a case involving Chinese Muslim prisoners at Guantanamo Bay (Kiyemba v. Obama, Circuit docket 08-5424) is “controlling authority” on the point that prisoners there “do not have due process rights.”

As a further alternative proposal, the Justice Department brief suggested that there is “a substantial possibility” that detainees’ lawyers will take the claim of due process rights on to the Supreme Court for resolution, so the Circuit Court should simply terminate the Britons’ case by refusing to recognize any claim of constitutional violation against the military officials and officers.

The Department also argued that the Supreme Court’s June decision has no effect on the Circuit Court’s rejection of the Britons’ religious bias claims, or their claims that their abuse violated international law.

In arguing that “special factors” should lead the Circuit Court not to allow constitutional claims against the Pentagon officials and officers, the Department brief made its broad argument against judicial interference with “wartime” military actions.

Lawyers for the four former prisoners gave a sharply different interpretation of the Supreme Court’s decision in the Boumediene case.  They contended that it established that detainees not only have a right to challenge their detention in a habeas petition, but that it also established due process rights for Guantanamo prisoners. “It is difficult to conceive of a right of habeas without a corresponding right to due process,” the brief contended.

Moreover, the brief contended, it has been constitutional law for decades — at least since 1936 and the Supreme Court decision in Brown v. Mississippi — “that the right not to be tortured” is a fundamental right, protected by the due process clause.  Thus, military officers should have known long before the Britons were at Guantanamo that torture was legally forbidden by U.S. law, so they have no claim to legal immunity, the brief asserted.

Challenging the Circuit Court’s Kiyemba ruling last month, finding no constitutional right to due process for those at Guantanamo, the Britons’ brief said that that conclusion “simply cannot be harmonized with the Supreme Court’s ruling in Boumediene.”

It added: “The principles announced by the Supreme Court in Boumediene wholly vitiate this Court’s reasoning and compel reversal” of the Circuit ruling against the Britons’ torture case.

Moreover, the brief conended that there is “nothing about Guantanamo” that would make enforcement of due process rights not to be tortured more of a problem than enforcing the right to habeas relief.  It noted that torture is forbidden by military law and U.S. criminal law, so “there would be no additional practical burden on the government if the Constitution also applies to prohibit” torture of detainees.