Obama Justice Dep. defends Rumsfeld in torture case
Exclusive: Attorney had hoped Obama admin would take 'stronger moral stance' on torture


Rachel Oswald
Published: Friday March 13, 2009

In a brief filed Thursday evening, Obama Justice Department lawyers extended many of the same arguments made by Bush attorneys – that top government officials have qualified immunity from prosecution and that Guantanamo detainees do not have constitutional rights to due process.

The Department of Justice has asserted that a Supreme Court ruling reaffirming the rights of Guantanamo detainees to habeus corpus does not apply to plaintiffs in a case against former Secretary of Defense Donald Rumsfeld because the plaintiffs were released from prison four years prior to the SCOTUS decision.

“It is fair to say that the current brief that is filed by the new administration supports a lot of the arguments that were made by the previous administration,” said Kate Toomey, an attorney with Baach Robinson & Lewis who is representing the former detainees in an interview with RAW STORY. “They continue to assert that torture was in the scope of employment and could be reasonably expected. They continue to assert that these [top officials] be entitled to immunity. They also continue to argue that detainees at Guantanamo don’t have constitutional rights.”

The brief was filed as part of the Rasul v. Rumsfeld lawsuit of four former detainees, who include the ‘Tipton Three,’ and are seeking damages for their detention and reported torture at Guantanamo Bay against Rumsfeld, the Chairmen of the Joint Chief of Staffs and other top military officials. The suit charges them with violations of the Fifth and Eighth Amendments, the Alien Tort Statute, the Geneva Conventions and the Religious Freedom Restoration Act. The plaintiffs are individually each seeking $10 million in damages.

The men were held for more than two years at Guantanamo where they were reportedly subjected to regular beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point and religious and racial harassment. They were never charged with any crime. The men were released in March 2004 and returned to their home country of Britain.

The plaintiffs are also being represented by the Center for Constitutional Rights, which has a full background of the case, including all court documents here.

Thursday’s brief is the latest action in the case after the Supreme Court in December granted the former detainees’ petition to review their case in light of SCOTUS’ June 2008 ruling in Boumediene v. Bush that Guantanamo detainees do have a right to habeus corpus. All charges in the case had previously been dismissed by the D.C. Circuit of the Court of Appeals except for the charge of violation of the Religious Freedom Restoration Act.

“Boumediene - decided four years after plaintiffs’ detention ended - cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct violated the Constitution or the RFRA statute,” the brief states.

The department’s request that the Boumediene ruling not be considered in the Rumsfeld case puts the Justice Department directly at odds with statements made by President Obama during the 2008 campaign.

"Habeas corpus ... is the foundation of Anglo-American law, which says very simply, if the government grabs you, then you have the right to at least ask, `Why was I grabbed?' and say, `Maybe, you've got the wrong person,’” said Obama at a early Sept. 2008 campaign rally where he seemed to refer to just such exactly the case posed by the the Tipton Three.

Shortly after 9/11, the former detainees were in Afghanistan reportedly doing humanitarian work when they were grabbed by a local warlord and handed over to American forces allegedly in exchange for the bounty the military was offering for suspected terrorists.

"The reason we have that safeguard is we don't always have the right person,” said Obama at the campaign rally. “We don't always catch the right person. We may think this is Muhammad the terrorist. It might be Muhammad the cab driver.”

Given statements like these made by President Obama, Toomey said she and others involved with the case had been hopeful that the new Justice Department would have taken a stronger stance on some of the most criticized policies of the Bush administration.

“We had hoped that they would file something that separated them from the former administration and obviously we had hoped that they would be taking a stronger moral stance about what should be anticipated from senior officers including the Secretary of Defense on legally standing prohibitions,” Toomey said, adding “There’s no question that the U.S. law forbids people from ordering torture. And so it’s unfortunate that they have sort of squandered an opportunity to have made that point.”

The Obama Justice Department extends the argument made by the Bush Justice Department that top government officials have qualified immunity when it writes:

“Because government officials are not ‘expected to predict the future course of constitutional law,’… decisions that post-date the conduct in question cannot be used to deny qualified immunity.”

Language used in the brief of the individual defendants in the case, including Rumsfeld, having a “clear entitlement to qualified immunity” casts doubt on the hopes of civil and human rights activists that the Justice Department will take up calls to launch criminal prosecutions into the architects and policy designers of some of the most criticized Bush policies such as waterboarding, extraordinary rendition and warrantless wiretapping.

Further light on the department’s position on individual prosecutions of members of the Bush Administration can be gleaned from statements like this in the brief:

“The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.”

The brief also makes the claim that it is “unnecessary” for the Supreme Court to address the question of whether the former detainees have “constitutional due process rights.”

“Plainly, the constitutional rights asserted by plaintiffs, which are still not established today… were not clearly established at the time of the alleged acts in question here. Accordingly, this Court was correct in concluding that a reasonable officer would not have concluded that plaintiffs here possessed Fifth and Eighth Amendment rights while they were detained at Guantanamo.”