{"id":2226,"date":"2008-01-16T15:23:24","date_gmt":"2008-01-16T15:23:24","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/war-terrorism\/gitmo-torture-appeal-rejected\/2226\/"},"modified":"2008-01-16T15:23:24","modified_gmt":"2008-01-16T15:23:24","slug":"gitmo-torture-appeal-rejected","status":"publish","type":"post","link":"http:\/\/rinf.com\/alt-news\/war-terrorism\/gitmo-torture-appeal-rejected\/","title":{"rendered":"Gitmo Torture Appeal Rejected"},"content":{"rendered":"

US appellate court rejects British victims\u2019 suit for Guant\u00c3\u00a1namo torture damages<\/strong><\/p>\n

By John Burton<\/a><\/p>\n

On January 11, the United States Court of Appeals for the District of Columbia Circuit dismissed a case brought by four British citizens seeking money damages to compensate them for having been tortured by the US government. The four individuals were held for more than two years at the United States Naval Base in Guant\u00c3\u00a1namo Bay, Cuba.<\/p>\n

With an outlandish display of convoluted and specious logic, the three-judge panel issued a precedent establishing that non-US citizens outside US national borders cannot seek any redress in any US court for torture or other deprivations of constitutional and statutory rights inflicted by US government officials.<\/p>\n

Ironically, the decision was issued on the sixth anniversary of the Guant\u00c3\u00a1namo Bay\u2019s opening, which was marked by protests and demonstrations around the world. About 200 demonstrators, many wearing orange jumpsuits, marched from the US Capitol to the Supreme Court building in Washington, DC. Others demonstrations took place in London, Sydney, Rome, Athens and Madrid. Terry Hicks, the father of freed Australian Guant\u00c3\u00a1namo prisoner David Hicks, participated in a protest in the Australian city of Adelaide.<\/p>\n

Incarcerating as many as 800 prisoners at its peak, the Guant\u00c3\u00a1namo prison population today is reportedly around 275.<\/p>\n

To reach its politically pre-determined result\u2013ratifying the Bush administration\u2019s creation of a legal \u201cblack hole\u201d beyond both domestic and international law\u2013the three-judge panel concluded that Guant\u00c3\u00a1namo Bay prisoners: (1) cannot sue under the Alien Tort Statute (ATS) or the Geneva Conventions because their torturers acted within the scope of their federal employment; (2) have no rights under the US Constitution because they are neither US citizens nor within US territorial jurisdiction; and (3) are not \u201cpersons\u201d protected by the Religious Freedom Restoration Act (RFRA).<\/p>\n

Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith were captured in Afghanistan by General Rashid Dostum, a Northern Alliance warlord, on November 28, 2001. They were turned over to the US military and held in Guant\u00c3\u00a1namo until their release in March 2004. (See \u201cBritain: Freed Guant\u00c3\u00a1namo Bay detainees detail beatings and abuse\u201d<\/a>)<\/p>\n

The following October, attorneys from the Center for Constitutional Rights (CCR) in New York City filed a complaint for damages in federal district court, alleging that then secretary of defense Donald Rumsfeld and Richard Myers, chairman of the Joint Chiefs of Staff, along with several high ranking military officers, expressly approved and promulgated policies to abuse and torture Guant\u00c3\u00a1namo Bay prisoners.<\/p>\n

The CCR complaint sets out in detail the \u201ccruel, inhuman and degrading\u201d conditions to which the plaintiffs were subjected. They were placed in \u201cwire cages of about 2 meters by 2 meters\u201d exposed to the elements, including scorching sunlight, and often were removed only once a week for a two-minute shower and again once a week for \u201cfive minutes recreation while their hands remained chained.\u201d<\/p>\n

Throughout their ordeal, the prisoners were repeatedly \u201cbeaten, shackled in painful stress positions, threatened by dogs, subjected to extreme temperatures and deprived of adequate sleep, food, sanitation, medical care and communication,\u201d while being subjected to repeated, lengthy and coercive interrogations.<\/p>\n

In addition to such physical and mental abuse, the plaintiffs allege \u201cthey were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet bucket.\u201d<\/p>\n

The government and military defendants filed a motion to dismiss the complaint. Under the Federal Rules of Civil Procedure, the reviewing court must accept all the factual allegations of the complaint as true and deny the motion to dismiss unless established law absolutely precludes recovery under any reasonable interpretation of the facts. In March 2005 the trial judge dismissed parts of the case, but allowed the claim that the defendants interfered with the prisoners\u2019 religious freedom to go forward. Both sides appealed. Last Friday\u2019s decision followed almost three years later.<\/p>\n

Circuit Judge Karen Lecraft Henderson\u2013appointed by George H.W. Bush to fill the seat vacated by Kenneth W. Starr in 1990\u2013issued a 43-page opinion disposing of each claim on the most reactionary grounds possible.<\/p>\n

Henderson was joined by Judge A. Raymond Randolph, also appointed by the first president Bush. Randolph has previously authored two noxious decisions upholding the Bush administration\u2019s assault on democratic rights. In Al Odah v. United States<\/em>, he ruled that Guant\u00c3\u00a1namo prisoners have no habeas corpus rights (See \u201cUS appeals court upholds denial of habeas corpus rights to Guant\u00c3\u00a1namo detainees\u201d<\/a>), and in Hamdan v. Rumsfeld<\/em> he ruled that Guant\u00c3\u00a1namo prisoners can be tried before military commissions that do not comply with the Uniform Code of Military Justice (See \u201cUS court upholds military trials for Guant\u00c3\u00a1namo prisoners\u201d<\/a>).<\/p>\n

The Supreme Court later reversed both of these earlier decisions. Because of subsequent Congressional actions, however, the issues presented by them remain unresolved.<\/p>\n

Henderson wrote that the four plaintiffs could not sue the defendants under the Alien Tort Statute or the Geneva Conventions because each defendant was acting \u201cwithin the scope of his employment.\u201d<\/p>\n

Henderson made the extraordinary declaration, \u201cTorture is a foreseeable consequence of the military\u2019s detention of suspected enemy combatants.\u201d On this basis, she rejected the plaintiffs\u2019 argument that the immunity for federal employees acting within the scope of employment should not apply because the defendants torture policy \u201cwas never authorized,\u201d was \u201cseriously criminal,\u201d \u201chas long [been] condemned\u201d by the United States and was a \u201csubstantial departure from the government\u2019s \u2018normal method\u2019 of detaining and interrogating persons of interest.\u201d<\/p>\n

Henderson then dismissed the constitutional claims based on denial of due process and cruel and unusual punishment by claiming, \u201cGuant\u00c3\u00a1namo detainees lack constitutional rights because they are aliens without property or presence in the United States.\u201d<\/p>\n

The argument is absurd as the US government exercises complete jurisdiction over the military base at Guant\u00c3\u00a1namo, which it occupies pursuant to a perpetual $1 lease extracted from the Cuban government in 1903. The opinion also defies recent Supreme Court precedent directly on point. Even if this were not the case, the Bill of Rights to the US Constitution constitutes a restriction on US governmental power, not a grant of rights or special privileges limited to US citizens or people within the national borders.<\/p>\n

The appellate court\u2019s position means that under the Constitution anyone in the executive branch of the US government can go anywhere outside the strict territorial boundaries of the United States itself, capture anyone not a US citizen, and then subject him or her to extreme physical, mental and emotional abuse without any concern for liability in any US court arising from violations of US or international law.<\/p>\n

Finally, the appellate court rejected the plaintiffs\u2019 claim that the defendants \u201cinhibited and constrained religiously motivated conduct central to Plaintiffs\u2019 religious beliefs,\u201d when they \u201cimposed a substantial burden on Plaintiffs\u2019 abilities to exercise or express their religious beliefs\u201d and \u201cregularly and systematically engaged in practices specifically aimed at disrupting Plaintiffs\u2019 religious practices.\u201d<\/p>\n

In the most patently offensive part of her opinion, Henderson wrote that the Religious Freedom Restoration Act, which provides that the \u201cGovernment shall not substantially burden a person\u2019s exercise of religion,\u201d cannot be used by the British plaintiffs tortured at Guant\u00c3\u00a1namo Bay because \u201cpersons\u201d\u2013as used in the statute\u2013do not include \u201caliens … located outside sovereign United States territory.\u201d<\/p>\n

This argument was too much for the third member of the panel, Judge Janice Rogers Brown, a right-wing judge appointed by George W. Bush, who enjoys a well-deserved reputation as a judicial loose cannon. Brown attacked the majority\u2019s reasoning, but not its result. \u201cThere is little mystery that a \u2018person\u2019 is an individual human being … as distinguished from an animal or thing,\u201d Rogers wrote, adding that the opinion \u201cleaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guant\u00c3\u00a1namo are not \u2018person[s].\u2019 This is a most regrettable holding in a case where plaintiffs have alleged high-level US government officials treated them as less than human.\u201d<\/p>\n

Eric Lewis, a law partner in Washington, DC\u2019s Baach Robinson & Lewis, who argued the appeal for the plaintiffs, called it \u201can awful day for the rule of law and common decency when a court finds that torture is all in a day\u2019s work for the Secretary of Defense and senior generals…. It is an awful day for our tradition of respect for religious freedom and for our moral standing in the world when a court finds that these detainees are not \u2018persons\u2019 whose rights to observe their religion with dignity and without harassment are worthy of protection.\u201d<\/p>\n

The Center for Constitutional Rights announced that it will be filing a petition for review in the Supreme Court.<\/p>\n","protected":false},"excerpt":{"rendered":"

US appellate court rejects British victims\u2019 suit for Guant\u00c3\u00a1namo torture damages By John Burton On January 11, the United States Court of Appeals for the District of Columbia Circuit dismissed a case brought by four British citizens seeking money damages to compensate them for having been tortured by the US government. The four individuals were […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20,16],"tags":[33],"class_list":{"0":"post-2226","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-general","7":"category-war-terrorism","8":"tag-guantanamo"},"_links":{"self":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/2226","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=2226"}],"version-history":[{"count":0,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/2226\/revisions"}],"wp:attachment":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=2226"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=2226"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=2226"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}