Avoiding a ruling on constitutional rights for Guantanamo Bay detainees, the D.C. Circuit Court on Friday once again threw out claims of torture and religious bias by four Britons no longer being held at the U.S. military prison in Cuba. The decision followed a return of the case to the Circuit Court by the Supreme Court, to test whether the Justices’ ruling last June on detainees’ rights affected this lawsuit. The Circuit Court found it did not. The new ruling in Rasul, et al., v. Myers, et al., can be found here.
The decision, if left intact after a possible further appeal, would insulate former Defense Secretary Donald Rumsfeld and ten senior U.S. military officers from liability for alleged torture and religious discrimination against the four former detainees, who have since returned to Britain, during their Guantanamo captivity.
The ruling marked one of the first decisions by a federal appeals court, in a major case, to take the option created by the Supreme Court in January to bypass a constitutional ruling and instead focus on whether a lawsuit against government officers should be thrown out on the theory that the officials had legal immunity because their actions were not unlawful at the time they engaged in them.
Before the Supreme Court’s unanimous decision on Jan. 21 in Pearson v. Callahan (07-751), a court facing a claim that an official had violated a constitutional right had to decide first whether such a right did exist, and, only if it did, then turn to the question of whether the official had immunity because the right did not exist at the time of the challenged conduct. Pearson gave lower courts the option to go first to the immunity claim. That is what a three-judge panel did Friday in Rasul.
The ex-captives had taken their case to the Supreme Court (docket 08-235) following an earlier defeat in the Circuit Court. On Dec. 15, the Justices vacated the Circuit Court decision and ordered the lower court to reconsider in the wake of the ruling in Boumediene v. Bush last June, establishing a constitutional right for detainees to challenge their imprisonment.
Potentially, that could have led to a new ruling by the Circuit Court on whether Boumediene meant for courts to recognize other constitutional rights. In its new Rasul ruling (in Circuit docket 06-5209), the three judges in an unsigned opinion intimated that they would not find any other rights existed for detainees, but then went on to say they did not have to resolve that issue.
“We will rest our decision on remand,” the panel said, on the Pearson option — looking first to the Pentagon officials’ claims of immunity. “The immunity question is one that we can rather quickly and easily decide,” the Circuit Court said. “We thus follow the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.”
It then proceeded to rule that, prior to the Boumediene decision, “no reasonable government official would have been on notice” that aliens being held outside the U.S. had any constitutional rights. The Supreme Court, in fact, said as much in its Boumediene ruling, the panel noted. All four Britons, it commented, had been released from Guantanamo more than four years before the Boumediene decision.
Not only had the Supreme Court not recognized previously any rights of aliens who had never been in the U.S., the Circuit Court said, but the Circuit Court’s own precedents had not done so, either.
It rejected an argument by the four Britons’ lawyers that the rights of aliens did exist long before, under a series of Supreme Court rulings in the early 1900s — the so-called Insular Cases.
Any recognition of rights of aliens in those cases, the Circuit Court said, was based on the notion that the U.S. had complete sovereignty over the places where the aliens were, and Congress governed those areas as terroritories. “Neither factor applies to Guantanamo,” it said.
“In short,” it summed up, “there was no authority for — and ample authority against — [the detainees’] asserted rights at the time of the alleged misconduct.”
The panel, in the only part of its ruling that split it, said that it would stand by its ruling against the Britons’ claims of religious bias because they were not “persons” under a federal law protecting against denial of religious freedom.  Circuit Judge Janice Rogers Brown objected to that conclusion, but did not dissent, since she agreed on other grounds that the religious claims, too, could not go forward.
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