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In Voiding Suit, Appellate Court Says Torture Is To Be Expected
By Greg Gordon
McClatchy Newspapers
Friday 11 January 2008
Washington - A federal appeals court Friday threw out a suit by four
British Muslims who allege that they were tortured and subjected to religious
abuse in the U.S. military prison at Guantanamo Bay, Cuba, a ruling that exonerated
11 present and former senior Pentagon officials.
It appeared to be the first time that a federal appellate court has ruled on
the legality of the harsh interrogation tactics that U.S. intelligence officers
and military personnel have used on suspected terrorists held outside the United
States since the terrorist attacks of Sept. 11, 2001.
The detainees allege that they were held in stress positions, interrogated
for sessions lasting 24 hours, intimidated with dogs and isolated in darkness
and that their beards were shaved.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia
Circuit ruled that the detainees captured in Afghanistan aren't recognized as
"persons" under the Religious Freedom Restoration Act because they were aliens
held outside the United States. The Religious Freedom Act prohibits the government
from "substantially burdening a person's religion."
The court rejected other claims on the grounds that then-Attorney General John
Ashcroft had certified that the military officials were acting within the scope
of their jobs when they authorized the tactics, and that such tactics were "foreseeable."
"It was foreseeable that conduct that would ordinarily be indisputably `seriously
criminal' would be implemented by military officials responsible for detaining
and interrogating suspected enemy combatants," Circuit Judge Karen LeCraft
Henderson wrote in the court's main opinion.
Judge Janice Rogers Brown dissented with parts of the opinion, saying that
"it leaves us with the unfortunate and quite dubious distinction of being the
only court to declare those held at Guantanamo are not `person(s).'
'`This is a most regrettable holding in a case where plaintiffs have alleged
high-level U.S. government officials treated them as less than human," Brown
wrote.
After being held for more than two years, the four men were repatriated to
Britain in 2004, where they were freed within 24 hours without facing criminal
charges, said Washington lawyer Eric Lewis, who represented them along with
the New York-based Center for Constitutional Rights.
Three of the men - Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed -
say they traveled to Afghanistan from Pakistan in October 2001 to provide humanitarian
relief but were seized by an Uzbek warlord in northern Afghanistan the next
month and sold to U.S. troops for bounty money. The three said they were unarmed
and never engaged in combat against the United States.
The fourth, Jamal al Harith, said he'd planned to attend a religious retreat
in Pakistan in October 2001 but was ordered to leave the country because of
animosity toward Britons. When he tried to drive a truck home via Iran and Turkey,
he says, his truck was hijacked at gunpoint and he was handed over to the Taliban,
who jailed him and accused him of being a spy. When the Taliban fell after the
U.S.-led invasion, he was detained and transported to Guantanamo.
The detainees filed suit in October 2004 against former Defense Secretary Donald
H. Rumsfeld, former Air Force Gen. Richard Myers, who was the chairman of the
Joint Chiefs of Staff at the time, and nine other senior military officers.
They allege that the Pentagon officials violated the Alien Tort Statute, the
Geneva Conventions, the religious freedom law and the Constitution with their
harsh treatment.
In upholding a lower court's rejection of all the claims but those under the
Religious Freedom Restoration Act, the circuit court said that the interrogation
tactics, which Rumsfeld first authorized in 2002, were "incidental" to the
duties of those who'd been sued.
"It is an awful day for the rule of law and common decency," said Lewis,
the detainees' attorney, "when a court finds that torture is all in a day's
work for the secretary of defense and senior generals. . . . I think the executive
is trying to create a black hole so there is no accountability for torture and
religious abuse."
Lewis said his clients intended to ask the Supreme Court to overturn the ruling.
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