Supreme Court facing the issue of Torture

Tracking new cases: Torture case returns
from SCOTUSblog by Lyle Denniston

NOTE: From time to time, the blog will examine significant new cases as they are filed at the Supreme Court. This post is one in that series. Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

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UPDATE: The case has been docketed as 09-227.

Lawyers for four Britons who formerly were held at Guantanamo Bay returned to the Supreme Court on Monday, seeking the first ruling by the Justices on claims of torture of terrorism suspects by U.S. agents. The new petition asked the Court to rule that the Constitution protects those held by the U.S. military or intelligence agencies from being tortured or abused, and to declare that a federal law protects them from discrimination based on their Muslim religion. They are challenging an April ruling by the D.C. Ciruit Court, rejecting for a second time their constitutional and legal challenges. The case is Rasul, et al., v. Myers, et al. , not yet assigned a docket number.

The Circuit Court, after once ruling that detainees had no constitutional rights, avoided any new ruling on the Britons’ constitutional claism after the case had been sent back to it by the Supreme Court last December. The Justices told the lower court to reconsider its prior decision in the wake of the Court’s 2008 ruling in Boumediene v. Bush, establishing a constitutional right for Guantanamo prisoners to challenge their captivity.

Instead, the Circuit Court panel in April responded by throwing out the case this time based on a finding of qualified immunity for former Defense Secretary Donald Rumsfeld and ten senior military officers sued in the case. The panel said it was taking an option created by the Supreme Court in another case last January to bypass a constitutional ruling and instead focus on officials’ immunity claim.

Whatever rights detainees might have as a result of the Boumediene ruling, that ruling came four years after the Britons had been released from Guantanamo, the Circuit Court concluded. It also renewed its earkuer ruling that the Britons could not claim religious bias under the federal Religious Freedom Restoration Act, because they were not ”persons” within the Act’s meaning.

The new Circuit Court decision, the Britons claimed on Monday , was a “manifest refusal to abide by this Court’s mandate and give due effect to Boumediene on the constitutional issues raised in this case.” The Justices, they argued, must “affirm the Court’s authority and compel an inferior court to abide by its mandate.”

The petition, though, added that there were “even more compelling issues which demand this Court;s attention.” Those, it said, were “whether detainees imprisoned the United States at Guantanamo have a right to be free from abuse and humiliation in the practice of their religion, whether Guantanamo detainees have a constitutional right to be free from torture, and whether public officials who knowingly violate these rights can escape accountability for their conduct by raising the shield of qualified immunity when they cannot assert this defense in good faith.”

“Torture and religious humilation of Muslim detainees at Guantanmo stands as a uniquely shameful episode in our history,” the Britons said. “This petition enables the Court to remedy that stain on the moral authority of our nation and its laws, to overrule an obdurately insupportable exercise in statutory construction that effectively renders these [detainees], and other other detainees at Gujantnamo, non-persons, and to facilitate accountability for these terrible acts.”

The petition argued that the federal government had chosen the detention site at Guantanamo Bay “in a cynical attempt to avoid acocuntability for conduct that had long been held unconstitutional when it occureed in U.S. prisons. But Guantanamo is not a Hobbesian enclave where [officials] could violate clear prohibitions on their conduct imposed by statute and regulations and then point to a purported constitutional void as a basis for immunity.”

The government officials sued in the case will have an opportunity to respond before the Justices act on the new appeal. Previously, the Obama Administration had opposed the Britons’ lawsuit when the case was being considered anew by the Circuit Court following the case’s return from the Supreme Court.

By coincidence, the new torture case reached the Supreme Court on the same day that Attorney General Eric Holder, Jr., announced that he was ordering a preliminary inquiry “into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” He said it was too soon to say whether there would actually be any prosecutions resulting from the probe. His statement can be found here. It is unclear whether that investigation will cover claims of abuse at Guantanamo, as opposed to Central Intelligence Agency “black sites” in other countries.