In dismissing their claims, the D.C. Circuit stated that the torture and religious humiliation these men endured—even after being cleared for release by the military—were incidental to the “need to maintain an orderly detention environment,” “appear[ed] to be standard for all” U.S. military detainees in Guantanamo, Iraq, and Afghanistan, and “was certainly foreseeable [by the government] because maintaining peace, security, and safety at a place like Guantanamo Bay is a stern and difficult business.”

 

“It is deeply disturbing and disappointing that the court has refused to hold those in the military command responsible for the abuse and prolonged detention of individuals who were determined not to be enemy combatants. Torture and religious humiliation are unacceptable wherever they occur. When it is directed at individuals known not to be our enemies, it defies comprehension. This decision regrettably leaves these plaintiffs with nothing for their abuse,” said Russell P. Cohen of Orrick, Herrington & Sutcliffe LLP, who argued the case.

 

In a number of previous cases the D.C. Circuit had ruled that immunity doctrines apply to shield the actions of government officials who abused Guantánamo detainees while they were suspected of being enemy combatants. The Supreme Court has thus far declined to hear appeals from those holdings. Unlike prior cases, three of the plaintiffs in this case were abused even after they were found to not be enemy combatants. In fact, the government negotiated with allies to resettle some of the men as refugees, even while continuing to abuse them in detention.

 

“If the court is correct that torture and religious humiliation are par for the course for detainees in the custody of our armed forces, that is an indictment of the way the United States treats its military detainees,” said Shayana Kadidal, counsel for CCR in the case and Senior Managing Attorney of the Guantanamo project at CCR.

 

Plaintiffs are considering their options for further appeal, including to the Supreme Court, which has refused to hear and decide a Guantánamo case since 2008.

 

One Uzbek plaintiff, Zakirjan Hasam, was subject to all of the worst abuses inflicted on Guantánamo detainees after he was found by a military (CSRT) panel to not be an “enemy combatant”: he was placed in solitary confinement (against a military psychologist’s advice), subjected to sleep deprivation, prevented from praying, forcibly shaved, and medicated against his will. When he was finally sent to Albania as a refugee, 23 months after the military panel’s ruling, he was sent shackled and bound to his seat. He continues to live in poverty there.

 

Another plaintiff, Sami Allaithi, could walk when he was brought to Guantánamo, but left in a wheelchair. He was routinely beaten, his Koran desecrated, his beard shaved, and his religion mocked -- all after he was found to not be an “enemy combatant” by a military panel. Now living with family in Egypt, he remains immobilized and in great pain.

 

The other plaintiffs are an Algerian doctor, taken from his pregnant wife and five children in Pakistan in 2002 and eventually sent to Albania as a refugee in 2006 (two years after his military panel found he was not an “enemy combatant”), and three Turkish men released before the military even provided CSRT panels to detainees.

 

CCR’s co-counsel on the case are Russell P. Cohen, Jason Cabot, Bob Rosenfeld, and Howard Ullmann of Orrick LLP’s San Francisco office. The case was argued by Mr. Cohen. For more information on this case, visit CCR’s case page.