Supreme Court Denies Cert in Torture Case Against Rumsfeld, et. al.

By Jeralyn, Section Terror Detainees
Posted on Mon Dec 14, 2009 at 11:13:20 AM EST
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Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith were released from Guantanamo in 2004. They sued for torture and religious discrimination. Their case was dismissed. Today, the Supreme Court denied cert.

The Obama administration opposed high court review of the case, adhering to its practice of defending Bush administration officials against allegations from one-time suspected terrorists or Taliban allies.

The defendants in the case included top Bush military officials such as former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff.

The D.C. Court of Appeals decision, which will now stand, is here. [More...]

The lawsuit alleged 7 grounds:

Counts 1, 2, and 3 invoked federal jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350, and alleged violations of international law. Count 4 alleged violations of unspecified provisions of the Geneva Convention. Counts 5 and 6 asserted Bivens claims for violations of the Fifth and Eighth Amendments to the Constitution. See Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Count 7 alleged a violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq.

The DC appeals court ruled the detainees could not sue because they were not "people" within the meaning of the Religious Freedom Restoration Act (RFRA).

On a related note regarding the constitutional rights of the undocumented, the court reiterated the standard: Once a person is living in the U.S., whether lawfully or not, he is entitled to the protections of the Constitution:

...aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. (citing Plyler v. Doe, 257 U.S. 202, 212 (1982) (The provisions of the Fourteenth Amendment “are universal in their application, to all persons within the territorial jurisdiction . . . .”) (emphasis added in Verdugo-Urquidez); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”) (emphasis added in Verdugo-Urquidez)).

Back to Rasul, et. al. At the time the DC Appeals Court issued its opinion, one of their lawyers said:

“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.

Update: The Center for Constitutional Rights has issued this statement on today's cert denial.

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Supreme Court Denies Cert in Torture Case Against Rumsfeld, et. al. | 8 comments (8 topical)

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NSDAP (none / 0) (#1)
by Andreas on Mon Dec 14, 2009 at 12:44:20 PM EST

Some "arguments" contained in the appeals court ruling are similar to those one can find in "court" rulings issued in Germany between 1933 and 1945.

This is something that's both disappointing and (none / 0) (#2)
by Socraticsilence on Mon Dec 14, 2009 at 01:08:14 PM EST

predictable both in terms of the decision and in terms of administration support (no administration is ever going to fail to back this-- possibly excepting the Carter Admin-- its just too dangerous for them both in terms of domestic abuses and especially foriegn policy abuses- think about it: The FDR admin criminally liable for internmnet, the Eisenhower admin for Mossadegh's fall, the JFK and LBJ admins for Castro ass. attempts and the Civil Rights wire taps, the Nixon admin for Cambodia, the Ford Admin for who knows, the Carter Admin- for Afghanistan, the Reagan Admin for Central America, Bush for possibly Panama, Clinton for the bombings of Serbia and Iraq as well as rendition, Bush II for the above, and Obama for Pakistan)

: gee, (5.00 / 1) (#4)
by cpinva on Mon Dec 14, 2009 at 02:36:24 PM EST

last time i checked, the reagan administration signed off on an international agreement that torture was illegal. that's not even an issue for discussion.

: True, but it demonstrates (none / 0) (#5)
by KeysDan on Mon Dec 14, 2009 at 03:55:51 PM EST

just how hollow the drum was that President Obama was beating in his Nobel Peace Lecture, particularly on the way we conduct war and adherence to the Geneva Conventions.

diogenes is dim today (none / 0) (#3)
by diogenes on Mon Dec 14, 2009 at 02:11:56 PM EST

Your bolded statement says that once an alien enters the country LAWFULLY, but your summary says that "once a person is living in the country lawfully or not". I'm too dim to reconcile the two.

: many of the 12 million (none / 0) (#6)
by Jeralyn on Mon Dec 14, 2009 at 04:48:11 PM EST

undocumented residents in this country entered lawfully with a visa but overstayed their visa and thus their presence is no longer lawful.
As to the others, the US Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 695 (2001)said:

The Fifth Amendment's Due Process Clause forbids the government to deprive any person of liberty without due process of law. Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects.
...once an alien enters the country, the legal circumstance changes, for the Fifth Amendment's Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary, or permanent.
So the Due Process clause of the 5th Amendment applies to citizens, lawfully present immigrants and undocumented residents, so long as they are physically present within the country.
But, you have a point to the extent that the case quoted today says "lawfully present" as to all constitutional protections, while Zadvydas, which doesn't restrict it to "lawful" discusses the 5th Amendment's due process clause.

Counts 5 and 6 seem by far the strongest (none / 0) (#7)
by mcl on Tue Dec 15, 2009 at 04:35:26 AM EST

The due process clause and the clause forbidding cruel and unusual punishment seem ironclad. The legal fig leaf that people dragged onto a U.S. army base and tortured to death are not legally people because they don't reside within the United States of America sets a dangerous precedent.

Consider: you get stopped by an ICE or TSA agent deplaning in Minneapolis from an overseas flight. The goons decide to torture you to death. Too bad, you're not legally a person because the airport holding cell where they tasered you to death is not legally a part of the United States of America, it's a no-man's-land called a "port of entry."

Of course muggers with badges will quickly extend this to cover everyone who gets stopped by a cop in traffic. The cop takes your driver's license, destroyrs it, smirks that you have no I.D. and therefore no proof that you are legally a citizen. Voila! You're no longer a legal person. The cop tortures you to death with a taser because he had a bad day. But no problem, he can't be sued, you're not legally a person.

Ugly, ugly precedent.

How Kafaesque we've become! (none / 0) (#8)
by Doc Rock on Tue Dec 15, 2009 at 09:02:58 AM EST

Once again, the parable!