U.S.: No need to rule on torture claim
on Nov 13, 2009 at 11:36 pm
The Obama Administration on Friday evening urged the Supreme Court to turn aside a test case by four former Guantanamo Bay detainees, and to do so without ruling on their claims of torture and religious discrimination by U.S. agents there.  It is clear, Solicitor General Elena Kagan argued in the new filing, that the detainees had no legal basis for their claims at the time they were at Guantanamo — between early 2002 and March 2004. Thus, she contended, the officials sued are immune from the lawsuit.
The filing came in the case of Rasul, et al., v. Myers, et al. (09-227). In August, the four Britons filed their second appeal in the Court, challenging a new ruling by the D.C. Circuit Court in April finding that former Defense Secretary Donald Rumsfeld and ten senior military officers had immunity from the claims because the torture and discrimination claims were not based on rights that were “clearly established” at the time. (An earlier post discussing the petition can be read here; the post includes links to the Britons’ petition amd to the Circuit Court’s opinion.)
The Supreme Court last Dec. 15 ordered the Circuit Court to reconsider an earlier decsion against the Britons’ claims, and to take into account the Justices’ June 2008 decision in Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their captivity. In its prior decision, the Circuit Court had ruled that detainees at the U.S. military prison in Cuba had no constitutional rights at all.
After reviewing the case again, the Circuit Court said it was not necessary to rule on the constitutional claims, because of its finding that they at least did not exist in the 14 or so months when the Britons were at Guantanamo. In her filing Friday, the Solicitor General contended that the new ruling is correct, and does not conflict with any other lower court ruling.
She did argue, on the detainees’ constitutional claims, that “special factors counsel hesitation” before courts should create a new right to sue for damages “in this military setting.” The Court, she said, has instructed lower courts “to pay particular attention to any special factors counseling before authorizing a new kind of federal litigation.”
