Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Supreme Court denied certiorari in Rasul v Rumsfeld, a lawsuit from four British citizens against several high ranking Bush administration officials for their detention and abuse at Guantanamo Bay. That leaves the appeals court ruling in place, which said that the Bush officials were protected by qualified immunity because it wasn't clear at the time they were tortured that torture was illegal.
My colleague Daphne Eviatar writes about the ruling at the Washington Independent:
That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who've been released from the Guantanamo prison, many of whom were subjected to so-called "enhanced interrogation techniques." Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and "waterboarding," or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.
The attorney for the plaintiffs is exactly right:
Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. "This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point," he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they're often still suspected of terrorism and unable to secure employment.At issue is an aspect of the D.C. Circuit's opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, "it wasn't clearly established in the law that they were entitled not to be tortured or subjected to religious abuse," said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.
The D.C. Circuit's ruling "reads out the good faith requirement in qualified immunity," said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. "The whole notion of qualified immunity is that officials acting in good faith should have some protections." But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws.
This is where that OPR report on John Yoo, which apparently will explicitly conclude that he acted in bad faith, will be very important. Of course, the Obama administration continues to stonewall on releasing that report despite repeated promises to do so.
Politics
Comments
I guess "ignorance of the law" is plenty excuse if you're a politician, even obviously willful ignorance.
Posted by: uknesvuinng | December 18, 2009 9:25 AM
This feels like a punch that at least knocks justice to the matt on the matter of torture, if not a knock-out. Am I wrong or is there hope?
I'm not sure how Yoo's being found complicit, a big if, will help much if the courts provide immunity to those who actually ordered and administrated our policy of torture. Acts which are in clear violations of both the laws and our treaty obligations and yet victims either can't get their day in court or are screwed.
Posted by: Michael Heath | December 18, 2009 9:38 AM
"Cruel and unusual punishment" is FORBIDDEN by the Eighth Amendment of the U.S. Constitution.
How much simpler can it be? We either live by the Constitution or we don't.
Posted by: Rodney | December 18, 2009 9:42 AM
So can the descendants of the Nazi war criminals appeal those convictions based upon the argument that their administration granted them permission to commit their crimes?
Posted by: dogmeatib | December 18, 2009 10:45 AM
It is simple, we do not.
http://www.cato-at-liberty.org/2009/12/15/bill-of-rights-day-3/
Posted by: Johnny Clamboat | December 18, 2009 11:55 AM
No, because that would go against precedence...
Posted by: mercurianferret | December 18, 2009 12:26 PM
mercurianferret,
You realize I was being sarcastic, right?
Posted by: dogmeatib | December 18, 2009 3:52 PM
"it wasn't clear at the time they were tortured that torture was illegal"
WTF??? What dumbass is making that claim? Man, that qualifies for dumbass quote of the decade. Even leaving the torture bit aside, their mere incarceration is against our laws; Dubbyah's excuse is that they were held offshore and not subject to US law - problem being if they're held in US territory then they are subject to US law. If they're held elsewhere they are subject to the law of that land (which is probably against torture even if the ruling parties engage in torture all the time) and since they are prisoners of war they are subject to various treaties such as the Geneva Convention. Of course Dubbyah also claimed that they were not POWs - in which case they're civilians unlawfully detained by military forces. This "enemy combatant" thing that Dubbyah loved to rave about is pure bullshit that only exists in his head; it is not something recognized in laws anywhere in the world, not even the USA.
Posted by: MadScientist | December 18, 2009 6:29 PM
If a government official wants to rob a bank, can he scour the ranks of lawyers until he finds one who's willing to write a memo approving the robbery, and thus be assured immunity from prosecution?
And the lawyer will presumably be immune as well, because proposing novel interpretations of the law is protected by the First Amendment.
Posted by: Jeffrey Kramer | December 18, 2009 6:35 PM
If a government official wants to rob a bank, can he scour the ranks of lawyers until he finds one who's willing to write a memo approving the robbery, and thus be assured immunity from prosecution?
No. They are not allowed to rob banks; they are only allowed to be superfluously paid by banks which have received funds from the Fed/Treasury.
Analogous reasoning holds for property theft (i.e., shoplifting from Costco is a no-no).
Posted by: Uncle Glenny | December 18, 2009 7:37 PM
They were not sure if torture was illegal, eh?
Apart from the 8th Amendment (mentioned above), how about international treaties (which have all the force of US law) such as The Third Geneva Convention (1929) and, of course, UN Convention Against Torture (1984) (signed by St. Ronnie of Alzheimer's). - DJ
Posted by: DingoJack | December 18, 2009 9:55 PM
I would like to believe everything MadScientist states @ 8. IANAL so I can't verify the veracity of his argument, but he nails my position perfectly with one exception. I think the little man in President Bush's head was actually an avatar of VP Cheney.
Posted by: Michael Heath | December 19, 2009 7:56 AM
Are you thinking of this?
Posted by: Matty | December 19, 2009 8:43 AM
Matty @ 13 - classic link, way better than my little analogy. The headline alone had me ROFL.
Posted by: Michael Heath | December 19, 2009 11:12 AM