March 13, 2009, Washington, D.C. – Four British former detainees alleging torture and religious abuse at Guantanamo filed their brief today in the D.C. Circuit Court of Appeals, and the Department of Justice, in its first opportunity under the new administration to address those issues, argued that detainees had no constitutional rights. The United States Supreme Court earlier granted the men’s certiorari petition and remanded the case for further consideration in light of the Supreme Court’s decision last summer in Boumediene v. Bush, which held that Guantanamo detainees had a constitutional right to habeas corpus.  

The brief filed by the Washington, DC law firm of Baach Robinson & Lewis and the Center for Constitutional Rights (CCR) argued that “the Boumediene decision requires this Court to … rule that appellants have the constitutional right not to be tortured and the right under the Religious Freedom Restoration Act (RFRA), to practice their religion without abuse or interference.”  The brief maintained that “it has long been established that there is an irreducible constitutional minimum that government officials owe to human beings under their control – whether citizen or alien – that necessarily includes the prohibition of torture.”  

In addition, the detainees’ counsel asserted that “permitting the systematic abuse of a discrete, insular group of Muslim men at Guantánamo conflicts fundamentally with the constitutional precepts underlying our Republic and with the text and purpose of RFRA.”  Finally, the brief strongly argued against qualified immunity for Secretary of Defense Rumsfeld and senior generals, arguing that that no reasonable official could conclude that he could successfully create a legal black hole where he could torture with impunity, an argument that echoed the Supreme Court’s statement that the Executive Branch cannot “switch the Constitution on and off at will.”  

The Department of Justice, with its first opportunity under the new administration to address the issue of torture and religious abuse, argued that detainees had no constitutional rights and that, even if they had enforceable rights, the defendant officers are immune from liability because the detainees’ right not to be tortured and to practice their religion without abuse was “not clearly established” at the time of their detention.  In addition, with respect to religious rights, the Justice Department’s brief supported the Appeals Court’s earlier holding that Guantanamo detainees are not protected by RFRA both because detainees are not “persons” under the Constitution, and because the statute was not meant to apply to them.   Finally, the government argued that the detainees’ case should be dismissed because of “special factors” “involving national security and foreign policy.”  The Justice Department suggests that “the prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.”

“There is one word that the Department of Justice never uses—torture—but the upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected,” said Eric Lewis, lead counsel for the detainees. “We believe that this position is clearly no longer tenable after the Supreme Court’s ruling and that the fundamental rights not to be tortured and to be free to practice one’s religion free of abuse will be vindicated, if not by the D.C. Circuit, then by the Supreme Court.”   

Michael Ratner, president of CCR, said, “We are gravely disappointed that the Justice Department and the new administration have squandered this opportunity to separate themselves from the policies of the past and to speak with moral force about torture and religious freedom.”

For more information on the case, click here.