Not As Hypothetical As I’d Like

The Liquid List directs me to Interrogation, Torture, the Constitution, and the Courts in which I learn that one of the hypothetical questions I created for my international law exam last semester is not quite as hypothetical as I thought.

The question read,

Suppose that the Supreme Court affirms the D.C. Circuit in Al Odah v. US. And suppose that the Cuban courts also refuse to entertain any claims relating to conditions in the US-controlled part of Guantanamo.

If at some time in the future certain Guantanamo detainees, those most strongly suspected of being high-ranking terrorists, are being tortured by US military or civilian personnel, what recourse, if any, do they or those concerned about them have while they remain incarcerated?

Turns out that the government has an answer to this question, which it gave to the Ninth Circuit—even a detainee being tortured has no recourse in the US courts:

According to the government's stated position in the case, the detainees have absolutely no legal right to question U.S. actions on Guantanamo. Federal court jurisdiction should be foreclosed, government counsel insisted during oral argument before the Ninth Circuit, even if the plaintiffs were to claim that their captors were committing “acts of torture” on Guantanamo or were “summarily executing the detainees.”

Of course, as one of my students had noted when we discussed this question in class, US courts are not the only possible forum and the detainees not the only possible instigators of legal action. For example, the detainee's government could raise a claim in the ICJ, make representations, take the matter to the UN, perhaps even exercise a right of reprisal. Furthermore, illegal acts such as torture could be prosecuted in a US court if the US government chose to do so; we can hold to the hope that it would. (Although currently the US seems to have other sorts of Gitmo-related prosecutions on its mind.)

Be that as it may, it's a sad day when a US government law officer tells a court that our government claims the right, even theoretically, to torture people with impunity.

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