Supreme Court rules torture is a 'foreseeable consequence'

Detainees at Camp X-Ray Original caption: Deta...

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The Supreme Court has refused to hear a suit seeking accountability for Guantanamo torture. (h/t Digby) SCOTUS received an assist from the Obama White House, which had asked the court not to hear the case.

Today, the United States Supreme Court refused to review a lower court’s dismissal of a case brought by four British former detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse at Guantánamo. The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004.

The Obama administration had asked the court not to hear the case. By refusing to hear the case, the Court let stand an earlier opinion by the D.C. Circuit Court which found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.

Obama’s DoJ concurs, using an old strategy employed by the Bush administration.

Their primary argument is that Ex-Guantanamo detainees don’t have any constitutional rights. Even if they did, the brief continues, Rumsfeld and other officers should be immune from prosecution because detainees’ right not to be tortured and to practice their religion without abuse was “not clearly established” at the time of their detention. The Obama administration supports the earlier decision by the Appeals Court that the ex-detainees do not have constitutional person-hood. The case should be dismissed because of special factors “involving national security and foreign policy,” the government’s brief concludes.

This is the same administration that also dropped the “enemy combatant,” status to describe terror suspects which was supposedly “deeply symbolic” because the “enemy combatant” status was the thing that allowed Bush to detain people indefinitely and without trial. Turns out, it doesn’t matter what you call ‘em, they still don’t have any rights within the United States.

Let’s be clear here: torture is a violation of American and international law. The Geneva Convention explicitly bans mental or physical torture or inhuman treatment of individuals captured in war zones. The Fifth Amendment forbids the US government from depriving any person of life, liberty, or property without due process of law. The Eighth Amendment bars the government from engaging in cruel and unusual punishment.

By putting onus on the captured (“Well, maybe you shouldn’t have let yourself be labeled an enemy combatant!”) SCOTUS is essentially saying torture is an acceptable consequence of military detention. It’s inevitable. Like the wind.

This decision actively encourages torture, since it declares that detainees don’t have any rights, and defendants won’t be held accountable for torturing because they’re not expected to treat detainees as if they do have any rights. In addition to being illegal, torture doesn’t work (it escalates conflict and is an ineffective counterinsurgency strategy,) it reduces our national security, and many of the tortured were innocent. Yet, the Obama administration and SCOTUS have argued that US officials who approved or engaged in torture at Guantanamo are entitled to immunity from lawsuits.

The courts are supposed to act as a “check” on executive power. The whole reason the Bush administration originally located Gitmo in Cuba was to skirt the watchful eye of the law. It turns out, they could have built their torture mill in Yankee Stadium, since SCOTUS intends on acting as an accomplice to the Bush and Obama administrations.

SCOTUS and the Obama White House are asking US officials to differentiate between the people who are protected by constitutional rights, and the “baddies” who are not protected under the law. And since anyone taken into US custody is an “enemy combatant,” that means no one declared an enemy by the United States is, according to SCOTUS, protected from torture. Any innocent people better pray they never get captured by the US in the first place, since SCOTUS has declared Mad Max rules. All of those domestic and international laws, and your innocence, won’t protect you from torture. Nor will the torturers ever be held accountable. Welcome to America.


  1. andygeiger

    Welcome to America? More like Welcome to Thunderdome… 210 men enter – no man leaves.

    Who needs the Supreme Court with their ivy league vocabulary – Tina Turner could be doling out these rules all by herself.

  2. libtree09

    One more black mark against Obama.

  3. I both disagree with the lower court’s finding and wish SCOTUS had agreed to hear the case, however, there is a very big difference between the Court turning down a Writ of Cert. wherein they agree to hear a case and saying that the court “ruled’ that torture was a foreseeable consequence. There are quite a few reasons why the Supreme Court will refuse to hear a case – agreeing that there is no outstanding question of law to be determined is but one of them. In this instance the Court did not rule on anything. If they were intent on making the lower court’s finding the law of the land (this interpretation only really applies to the D.C. Circuit jurisdiction), they would have taken the case and specifically affirmed the judgment.

  4. bobmarch


    While the US SCt would not hear the case, leaving this appellate court ruling mandatory on the DC district; other districts will likely take judicial notice of the DC court. So while it would be mandatory only in DC, it likely would lead to similar rulings elsewhere. And it leaves the current litigants with the ruling (they cannot re-file elsewhere & in these cases where the ct of jurisdiction would likely be the DC dist for out of the country actions, then yes, it would effectively make it the law for this class of people). I wouldnt be surprised if those people end up killing americans because of this ruling (pissed off & nothing left to do?). Hopefully, they’ll target only the govt officials they see fit to chase will get injured. Then they can say the supreme court drove them crazy and made them do it.

  5. ivaroeines

    What the US Supreme court rules on are also the rights of states like Iran and North Korea have the right to detain and torture suspected CIA operatives( this means every non uniformed US citizen ) without the United States having a say in the matter.

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