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Federal Appeals Court Dismisses Released Detainees' Lawsuit

The D.C. Court of Appeals today upheld the dismissal of a lawsuit for damages filed by four Britons who had been detained at Guantanamo. Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith had sued Donald Rumsfeld and other top military officers for ordering torture and religious abuse during the two years they spent at Guantanamo before being sent back to Britain. The trial court dismissed all of the claims except the one over religious discrimination. The appeals court dismissed that as well.

The Center for Constitutional Rights, which brought the suit on behalf of the men, reports:

More....

Judges Say Men at Base are Not "Persons" Under U.S. Law, Torture a "Foreseeable Consequence" of Military Detention.

In a 43-page opinion, Circuit Judge Karen Lecraft Henderson found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantánamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The 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 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 Guantánamo had any constitutional rights.

And remember Janice Rogers Brown, whose nomination by President Bush to the D.C. Court raised a huge groundswell of opposition? While she concurred in the decision, she had this to say about the majority opinion's assertion that detainees are not 'persons."

In a separate concurrence, Judge Janice Rogers Brown agreed with the result but attacked the majority for using a definition of person “at odds with its plain meaning.” She observed, “There is little mystery that a ‘person’ is an individual human being…as distinguished from an animal or thing.” Judge Rogers Brown concluded that the majority’s decision “leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantánamo 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.”

One of the detainee's lawyers had this to say:

“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.

The opinion is here (pdf).

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  • Display: Sort:
    The future (none / 0) (#1)
    by manys on Fri Jan 11, 2008 at 09:50:02 PM EST
    Is it just me, or does a ruling that states that a person is not a person indicate a system that is rife with insanity? I mean, this seems to be a loophole or other weakness in US law. Why would there ever possibly be a reason not to consider a person to be a person, and thus have it codified in the relevant statutes?

    depends on what the meaning of "is" is? (none / 0) (#2)
    by Compound F on Fri Jan 11, 2008 at 10:00:29 PM EST
    Jiminy Crickets.  As for the "loophole" or "weakness," I'd say just plain dishonest.

    Parent
    More specifically (none / 0) (#3)
    by manys on Fri Jan 11, 2008 at 10:43:16 PM EST
    Why does it depend on what the meaning of "is" is? THAT is the weakness.

    Parent
    we need not descend into silliness, (none / 0) (#4)
    by Compound F on Fri Jan 11, 2008 at 11:38:50 PM EST
    as did the court.  I was being ludicrous, of course.

    Your point was well-taken the first time around, and really, what else can be said?  Persons are not persons?  Ludicrous.  

    Parent

    Oh dear lord. (none / 0) (#5)
    by fishbane on Sat Jan 12, 2008 at 03:03:23 AM EST
    I'm appalled that I'm partially in agreement with Brown. I'm still wading through the decision, but hairy Christ on a biscotti, that has to be one of the most damning decisions in the last 60 or so years. Not "persons"? Torture is to be expected? Incarcerating, um, un-people while parading the fact that one is doing so on TV, and not somehow still passing a "reasonable person" test about the, er, non-people's constitutional rights? WTF?

    This is beyond insane. That's mainlining 1984 directly into legal precedent.

    I'll have to stare at that document more (when it isn't 4 AM), but my first impulse is that I really hope Lewis appeals. I have trouble imagining that even a Roberts court with Scalia will uphold something this egregious. (Alito is a different story...)

    German Nazis denied that Jews are persons (none / 0) (#6)
    by Andreas on Sat Jan 12, 2008 at 10:38:43 AM EST
    Karl Larenz, one of the legal "experts" of the Nazi regime, wrote:

    Rechtsgenosse ist nur, wer Volksgenosse ist; Volksgenosse ist, wer deutschen Blutes ist. Dieser Satz könnte anstelle des die Rechtsfähigkeit 'jeden Menschens' aussprechenden Paragraph 1 BGB, an die Spitze unserer Rechtsordnung gestellt werden.



    tort (none / 0) (#7)
    by wg on Sat Jan 12, 2008 at 12:24:08 PM EST
    two technical notes:

    • the court found they are not persons not generally but only in the context of some US statues and its Constitution. For example: the Fifth Amendment reads:  "No person shall be held ..." but the Supreme Court held long time ago that foreigners do not have any rights under the 5th - thus they are not persons within the meaning of that amendment. They extended this interpretation to several other recent US statues violation of which was asserted by the plaintiffs in this case.

    • the main reasons for dismissing this case was this. All the defendants were employees of the federal government and all alleged violations were connected with performance of their official duties thus the Federal Tort Claim Act applies, and the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies, which they didn't, thus  plaintiffs have no standing in this court.

    Correct me if my reading is wrong.

    Terrible Decison (5.00 / 1) (#8)
    by john horse on Sat Jan 12, 2008 at 04:07:25 PM EST
    tort,
    re: the court found they are not persons not generally but only in the context of some US statues and its Constitution.

    per Judge Rogers Brown the majority's decision "leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantánamo 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."

    I think her interpretation is clear.  You can treat the detainees at Guantanamo as less than human because the court considers them as less than human.  Detainees have a lower legal standing than dogs.  Unlike detainees you mistreat a dog and you get jail time.

    This has got to be one of the worst court decisions ever.  

    Parent

    sure (5.00 / 1) (#11)
    by wg on Sun Jan 13, 2008 at 01:25:32 PM EST
    ... the worst court decisions ever. ...

    I don't like it either (look up tort first), but technically the decision is correct, the Federal Tort Claims Act clearly applies here so they had little choice. Same with foreigners not being persons as far as US constitutional rights are concerned, as this been held so by US courts for quite some time.

    For uninitiated the primary purpose of FTCA is to shield government people from having to answer criminally for things they do, this is somewhat similar in purpose to the infamous "qualified immunity". Torts usually result in monetary compensation, prison time is highly unusual. The calculation here is this, if we think we will lose we will settle in tort proceedings to avoid harsher penalties, if not we will fight it out in courts.  Fine by me, although some government transgressions are so serious prison time would be highly desirable if only for its presumed deterrent quality.

    Mayfield's lawyers somehow managed to avoid this tort trap, how I don't know, lawyers in this case obviously should've consulted with them beforehand.

    Re foreigners having no rights under US constitution something needs to be done here one day. Imagine what would happen if foreign countries decided to reciprocate, your kid goes to Italy as an exchange student, does something untoward, gets arrested and Italians refuse him legal rights they normally extend to their own citizens, disappearing him in some hellhole of theirs or shipping him off to Egypt for more physical CIA like treatment for example. Heck they could do it to those CIA agents they issued European arrest warrants for.

    Wouldn't that be something?

    Parent

    Of course dogs (1.00 / 0) (#9)
    by jimakaPPJ on Sat Jan 12, 2008 at 07:47:47 PM EST
    aren't trying to kill US citizens as planed activity.

    Parent
    Sad - The Lengths that You Will Go To (5.00 / 1) (#10)
    by john horse on Sat Jan 12, 2008 at 10:41:42 PM EST
    PPJ,
    re: Of course dogs aren't trying to kill US citizens as planed activity.

    Neither were the detainees who were trying to seek redress in our courts trying to kill US citizens.  How do I know this? They were all "released".    

    I guess you can't let the facts get in the way when you are an apologist for torture and religious abuse.

    Parent

    Ok (none / 0) (#12)
    by katmandu on Mon Jan 14, 2008 at 03:05:38 AM EST
    Obviously we're getting "cherry picked"
    sound bites here.  All supplied by the
    losing side. I'll wait until I can read
    the entire decision.
    As for the comment about Americans in foreign
    countries disappearing in some hellhole---that happens all the time. Ask my Dad about literal
    "hellholes" you get thrown into for straying
    off the beaten path in Russia or Saudi Arabia.
    He found out the hard way in both countries.
    They both use pits for suspected spies.
     Criminal activity that is under the military's jurisdiction is handled differently than what a
    citizen or regular visitor goes through. It is
    that way in all countries, not just ours.
    I'm glad the Appeals Court dismissed the
    lawsuit.  I think it was frivolous.