Last week, on the sixth anniversary of the first prisoner transfers into Guantánamo Bay Naval Station, a federal appeals court dismissed a case seeking compensation for a group of British detainees who were released from the prison and sent home to freedom in 2004.

The decision in the case (originally brought under the name Rasul v. Rumsfeld by the Center for Constitutional Rights and the law firm of Baach Robinson & Lewis in Washington, DC) is the latest setback in our attempts to hold government officials accountable for wrongful detentions, torture and religious humiliation of detainees at the base. With the passage of the Military Commissions Act in 2006, the administration claims that the efforts to challenge the detention of men still held at the base through habeas corpus petitions may no longer proceed in federal courts. The same Act purports to grant immunity from criminal prosecution for war crimes or abuses amounting to torture committed by officials responsible for the worst of our detention and interrogation practices over the last six years. If the administration’s arguments on those fronts succeed, civil damages actions after the fact are the last best chance to hold torturers accountable and to compensate men whose lives have been ravaged by their abuse while in prolonged, mistaken detention at the hands of our government.

The plaintiffs in this case, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith, were systematically tortured by the U.S. for more than two years before finally being released without charge.  In the course of their detention, they were routinely beaten, deprived of sleep, threatened with dogs, strip searched, placed in “stress positions� for many hours at a time, abused because of their religion, and repeatedly placed in solitary confinement for months at a time. They were never charged with anything (their story of being in the wrong place at the wrong time was immortalized in the film, The Road to Guantanamo), and were sent home to civilian life in England without so much as an apology.

The claims were brought under several legal theories. Plaintiffs invoked the Alien Tort Statute, one of the oldest laws in American history, passed in 1789 as part of the first Judiciary Act.  This law allows noncitizens to sue for torts committed in violations of international law, including torture, arbitrary detention and cruel, inhuman and degrading treatment, and the Geneva conventions.  The plaintiffs also claimed violations of the Constitution and the Religious Freedom Restoration Act (RFRA), a 1993 law that Congress passed (unanimously in the House, near so in the Senate) to outlaw government practices that unfairly burden the free exercise of religion. RFRA allows “appropriate relief� against government officials, including monetary damages.

Now, in addition to its provisions purporting to kill habeas challenges to ongoing detention, and criminal prosecutions of military and intelligence officials, the Military Commissions Act contains broad language also aimed squarely at civil damages suits against officials brought by “enemy combatants.� But these provisions did not apply to kill these claims from the outset because these men should never have been picked up in the first place, and, although held without charges for more than two years, they were never found to be “enemy combatants.�

The government was thus forced to rely on several more traditional theories of immunity, including sovereign immunity pursuant to the Federal Tort Claims Act and the “Westfall Act.� In order to dismiss the claims in our case in this manner pursuant to the Westfall Act (which immunizes government employees for certain claims arising out of their employment), first the district court, and then the appeals court had to decide that the abuses our clients experienced were somehow carried out while each defendant (Donald Rumsfeld and others down the chain of command) was “acting within the scope of his office�—that is, that torture was part and parcel of their jobs. Amazingly, both courts said exactly that.  The court of appeals’ recent opinion held that because detention and interrogation of “suspected enemy combatants� is part of military officials’ jobs, “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.�  All in a day’s work, as it were.

The claims for religious abuse at Guantanamo—guards shaving the plaintiffs’ beards and heads to distress and humiliate the men, deliberately interrupting during prayer time, kicking detainees’ Korans, and, in one instance, throwing a copy in a toilet bucket—also amounted to nothing, according to the court.- The RFRA statute says that “government shall not … burden a person’s exercise of religion.â€? The majority argued that, surely, Congress did not intend the word “personâ€? to include nonresident noncitizens like the men at Guantánamo. Echoing Dred Scott, this interpretive turn was too much for the sole African-American judge on the panel, Janice Rogers Brown, who in a separate opinion wrote that the majority’s reading of Congress’ will was “at odds with [the statutory text’s] plain meaning,â€? adding “[t]here is little mystery that a ‘person’ is an individual human being … as distinguished from an animal or a thing.â€?  As Judge Brown stated, “It leaves [the DC Circuit] 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.â€?

Absurd as some of these debates are, they keep us lawyers interested because these arcana keep us employed. But stepping back, at the core of all these issues is one question: did Congress intend for officials that engage in egregious, intentional torts – like torture and sustained religious abuse – to be held accountable to the persons they injure?  If not, could Congress have intended that victims of torture and religious abuse have no remedy whatsoever?

If the courts have got Westfall wrong,  there are many ways Congress can act to reverse the outcome in Rasul and future cases that attempt to hold American officials accountable for torture. Should the ruling survive any further appeals, Congress can reverse every element of it by legislation. The first target for reform should be the Westfall Act. Congress should amend it to make it crystal-clear that, at least with respect to egregious intentional torts like torture, officials can be held accountable for their abuses. Doing so won’t drain the federal government’s coffers. It’s more likely to save money by ensuring government officials act competently and pay attention to the law.

As to the plaintiffs, so often forgotten in the midst of legal debates, Congress can also compensate them by passing “private bills� of the sort traditionally used to compensate individuals on behalf of the nation. Torture victims of other governments are routinely compensated by our courts, and the government of other countries have stepped up to compensate their victims without waiting for the courts—including the government of Canada, which apologized and paid twelve million dollars to our torture rendition client Maher Arar. If our courts prove unwilling to send such a message, Congress can and should intervene to do the same here.

This entry was posted on Friday, January 18th, 2008 at 12:43 pm and is filed under Civil Rights, Homeland Security, Politics .