January 11, 2008 – On the sixth anniversary of the imprisonment of detainees at the Guantánamo Bay Naval Base, the United States Court of Appeals for the District of Columbia Circuit today dismissed an action brought by four former British detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse. The British detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith – spent more than two years in Guantánamo and were repatriated to the U.K. in 2004.

In a 43-page opinion, Circuit Judge Karen Lecraft Henderson found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantánamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The 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 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 Guantánamo had any constitutional rights.

In a separate concurrence, Judge Janice Rogers Brown agreed with the result but attacked the majority for using a definition of person “at odds with its plain meaning.” She observed, “There is little mystery that a ‘person’ is an individual human being…as distinguished from an animal or thing.” Judge Rogers Brown concluded that the majority’s decision “leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantánamo 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.”

Eric Lewis, a partner in Washington, D.C.’s Baach Robinson & Lewis, who argued the appeal for the detainees, stated, “It is an awful day for the rule of law and common decency when a court finds that torture is all in a days’ work for the Secretary of Defense and senior generals. It violates the President’s stated policy, our treaty obligations, and universal legal norms. It is an awful day for our tradition of respect for religious freedom and for our moral standing in the world when a court finds that these detainees are not ‘persons’ whose rights to observe their religion with dignity and without harassment are worthy of protection.” Lewis stated that his clients intend to petition the Supreme Court to overturn the ruling.

Michael Ratner of the Center for Constitutional Rights, co-counsel on the case, observed, “We are disappointed that the D.C. Circuit has not held Secretary Rumsfeld and the chain of command accountable for torture at Guantánamo. The entire world recognizes that torture and religious humiliation are never permissible tools for a government. We hope that the Supreme Court will make clear that this country does not tolerate torture or abuse by an unfettered executive.”

Plaintiffs have 90 days to petition the Supreme Court.

CCR has led the legal battle over Guantánamo for the last six years – sending the first ever habeas attorney to the base and, just this month, sending the first attorney to meet with a former CIA “ghost detainee.” CCR has been responsible for organizing and coordinating the largest ever coalition of pro-bono lawyers in order to defend the men at Guantánamo, ensuring that nearly all have been represented. CCR represented the detainees with co-counsel in the Supreme Court on December 5.