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Published on Saturday, January 12, 2008 by the McClatchy Newspapers

In Voiding Suit, Appellate Court Says Torture is to be Expected

by Greg Gordon

WASHINGTON -- A federal appeals court Friday threw out a suit by four British Muslims who allege that they were tortured and subjected to religious abuse in the U.S. military prison at Guantanamo Bay, Cuba, a ruling that exonerated 11 present and former senior Pentagon officials.

It appeared to be the first time that a federal appellate court has ruled on the legality of the harsh interrogation tactics that U.S. intelligence officers and military personnel have used on suspected terrorists held outside the United States since the terrorist attacks of Sept. 11, 2001.

The detainees allege that they were held in stress positions, interrogated for sessions lasting 24 hours, intimidated with dogs and isolated in darkness and that their beards were shaved.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the detainees captured in Afghanistan aren't recognized as ``persons'' under the Religious Freedom Restoration Act because they were aliens held outside the United States. The Religious Freedom Act prohibits the government from ``substantially burdening a person's religion.''

The court rejected other claims on the grounds that then-Attorney General John Ashcroft had certified that the military officials were acting within the scope of their jobs when they authorized the tactics, and that such tactics were ``foreseeable.''

``It was foreseeable that conduct that would ordinarily be indisputably `seriously criminal' would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants,'' Circuit Judge Karen LeCraft Henderson wrote in the court's main opinion.

Judge Janice Rogers Brown dissented with parts of the opinion, saying that ``it leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not `person(s).'

'`This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human,'' Brown wrote.

After being held for more than two years, the four men were repatriated to Britain in 2004, where they were freed within 24 hours without facing criminal charges, said Washington lawyer Eric Lewis, who represented them along with the New York-based Center for Constitutional Rights.

Three of the men - Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed - say they traveled to Afghanistan from Pakistan in October 2001 to provide humanitarian relief but were seized by an Uzbek warlord in northern Afghanistan the next month and sold to U.S. troops for bounty money. The three said they were unarmed and never engaged in combat against the United States.

The fourth, Jamal al Harith, said he'd planned to attend a religious retreat in Pakistan in October 2001 but was ordered to leave the country because of animosity toward Britons. When he tried to drive a truck home via Iran and Turkey, he says, his truck was hijacked at gunpoint and he was handed over to the Taliban, who jailed him and accused him of being a spy. When the Taliban fell after the U.S.-led invasion, he was detained and transported to Guantanamo.

The detainees filed suit in October 2004 against former Defense Secretary Donald H. Rumsfeld, former Air Force Gen. Richard Myers, who was the chairman of the Joint Chiefs of Staff at the time, and nine other senior military officers. They allege that the Pentagon officials violated the Alien Tort Statute, the Geneva Conventions, the religious freedom law and the Constitution with their harsh treatment.

In upholding a lower court's rejection of all the claims but those under the Religious Freedom Restoration Act, the circuit court said that the interrogation tactics, which Rumsfeld first authorized in 2002, were ``incidental'' to the duties of those who'd been sued.

``It is an awful day for the rule of law and common decency,'' said Lewis, the detainees' attorney, ``when a court finds that torture is all in a day's work for the secretary of defense and senior generals. . . . I think the executive is trying to create a black hole so there is no accountability for torture and religious abuse.''

Lewis said his clients intended to ask the Supreme Court to overturn the ruling.

McClatchy Newspapers 2008

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