Supreme Court Refuses to Hear Suit Seeking Accountability for Guantanamo Torture

Today, the United States Supreme Court refused to review a lower
court's dismissal of a case brought by four British former detainees
against Donald Rumsfeld and senior military officers for ordering
torture and religious abuse at Guantanamo. The British detainees spent
more than two years in Guantanamo and were repatriated to the U.K. in
2004.

The Obama administration had asked the court not to hear the case. By
refusing to hear the case, the Court let stand an earlier opinion by
the D.C. Circuit Court which found that the Religious Freedom
Restoration Act, a statute that applies by its terms to all "persons"
did not apply to detainees at Guantanamo, effectively ruling that the
detainees are not persons at all for purposes of U.S. law. The lower
court also dismissed the detainees' claims under the Alien Tort Statute
and the Geneva Conventions, finding defendants immune on the basis that
"torture is a foreseeable consequence of the military's detention of
suspected enemy combatants." Finally, the circuit court found that,
even if torture and religious abuse were illegal, defendants were
immune under the Constitution because they could not have reasonably
known that detainees at Guantanamo had any Constitutional rights.

Eric Lewis, a partner in Washington, D.C.'s Baach Robinson & Lewis,
lead attorney for the detainees, said, "It is an awful day for the rule
of law and common decency when the Supreme Court lets stand such an
inhuman decision. The final word on whether these men had a right not
to be tortured or a right to practice their religion free from abuse is
that they did not. Future prospective torturers can now draw comfort
from this decision. The lower court found that torture is all in a
days' work for the Secretary of Defense and senior generals. That
violates the President's stated policy, our treaty obligations and
universal legal norms. Yet the Obama administration, in its rush to
protect executive power, lost its moral compass and persuaded the
Supreme Court to avoid a central moral challenge. Today our standing
in the world has suffered a further great loss."

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 violations of their
constitutional rights and of 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 Court of Appeals
for the District of Columbia Circuit 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 and that detainees have a Constitutional right to habeas corpus.

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 because the right not to be tortured
was not clearly established.

A second petition filed with the Court on August 24, 2009 pointed out
that the Court of Appeals decision stands in conflict with all of the
Supreme Court's recent precedent on Guantanamo and attacked the notion
that the prohibitions against torture and religious abuse were not
clearly established in 2002 when the petitioners were imprisoned.

Center for Constitutional Rights Senior Attorney Shayana Kadidal,
co-counsel on the case, said, "We are disappointed that the Supreme
Court has refused to hold Secretary Rumsfeld and the chain of civilian
and military command accountable for torture at Guantanamo, and that
the Obama administration sought to block torture victims from having
their day in court. Where can these men seek justice now for the
terrible things that were done to them? The entire world recognizes
that torture and religious humiliation are never permissible tools for
a government, yet our highest court seems to think otherwise."

CCR has led the legal battle over Guantanamo for the last seven 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 the
base, ensuring that nearly all have the option of legal representation,
and is representing detainees at Guantanamo before the Supreme Court
for the third time this term. 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.

Baach Robinson & Lewis, a Washington, D.C. litigation firm has been
in the forefront of detainee litigation, working on behalf of both
Guantanamo and Afghan detainees, since early 2004.