The Progressive


A project of Common Dreams

For Immediate Release

SCOTUS Petition Asks Justices to Review Torture Abuse Case of British Former Guantanamo Detainees a Second Time

Detainees Declared Not to Be “Persons” by Lower Courts


Baach Robinson & Lewis PLLC and the Center for Constitutional Rights today filed a petition to the Supreme Court on behalf of four British citizens who were tortured and subjected to religious humiliation at Guantanamo. The petition marks the second time in the last year that the British citizens have asked the Supreme Court to review their case.

The four former detainees - Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith - were held from 2002 to 2004 at Guantanamo before being sent home to England without being charged with any offense. They filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violation of their constitutional rights and the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person. Their claims were dismissed in 2008 by the District of Columbia Circuit Court of Appeals when that court held that detainees have no rights under the Constitution and do not count as "persons" for purposes of the Religious Freedom Restoration Act.

Last year, the Supreme Court granted the men's first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court's historic decision in Boumediene v. Bush, which held that Guantanamo is de facto U.S. territory, that detainees have a Constitutional right to habeas corpus and that detainees have fundamental constitutional rights.

On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantanamo and that detainees still are not "persons" protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability.

The petition filed today pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court's recent precedent on Guantanamo:

This case presents a unique and compelling opportunity for this Court to affirm that torture at Guantanamo was a violation of fundamental rights as well as to make clear to inferior courts that its constitutional jurisprudence regarding Guantanamo must be taken seriously. Left in place, the Court of Appeals' decision will be a final assertion of judicial indifference in the face of calculated torture and humiliation of Muslims in their religion. The decision cannot stand.

The petition also attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned. It notes that the defendants wrote and received memoranda and reports that expressly acknowledged the longstanding laws prohibiting abuse and torture of prisoners. As the petition noted, Guantanamo appears to have been selected as the incarceration center for these prisoners "in a cynical attempt to avoid accountability for conduct that had long been held unconstitutional when it occurred in U.S. prisons."

Eric Lewis, lead counsel for the Petitioners, commented, "There must be accountability for these violations of core American ideals. The Supreme Court has been a bulwark in establishing the rule of law at Guantanamo and it is imperative that the Court strongly affirms that the judiciary will not stand silent in the face of officially sanctioned torture."

Bill Quigley, Legal Director of the Center for Constitutional Rights, said, "This is a moment of truth for the Obama administration. Will it support a decision that says detainees have no right to be free of torture and that government officials who order torture should not be held accountable for their actions? To be true to the principles on which this administration was elected, the Justice Department should support a strong judicial affirmation of the prohibition against torture."

CCR has led the legal battle over Guantanamo for the last six years - sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA "ghost detainee" there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantanamo because they cannot return to their country of origin for fear of persecution and torture.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. CCR is committed to the creative use of law as a positive force for social change.

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