Category Archives: Guantanamo

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.

Supreme Court Takes First Case on Guantánamo Detainees. The Supreme Court granted cert in and consolidated two cases relating to the Guantánamo detainees. Both raise purely jurisdictional issues.

In one case, Rasul v. Bush (No. 03-334) three detainees' parents sought writs of habeas corpus. Here's the cert petition.

In the other case, Al Odah v. United States (No. 03-343) (cert petition), relatives of twelve detainees sought to challenge the legality of the detention under the Alien Tort Statute, 28 USC § 1350, the Administrative Procedures Act (APA), and the 5th Amendment. They sought a declaration that the detention is arbitrary and capricious, and that the detainees should have an opportunity to speak to a lawyer.

The D.C. Circuit ruled in both cases at once, holding that “the courts are not open” to the detainees, 321 F.3d 1134, because Guantánamo is outside the sovereignty of the United States, and our courts thus lack jurisdiction to hear their claims. The court opinion, authored by Judge Randolph, comes with an interesting concurrence by … Judge Randolph, in which he really goes to town, not only rejecting the dominant reading of the Alien Tort Statute and offering one that effectively neuters it, but also finding that the APA provides no relief for the plaintiffs.

While I disagree vehemently with the view that there is no federal habeas jurisdiction, nor jurisdiction via the Alien Tort Act, I think at first glance that I do agree with Judge Randolph about the APA claims. The APA explicitly does not apply to the military.

The path of least resistance for the Supreme Court is to do what the lower courts did and follow Johnson v. Eisentrager, 339 U.S. 763 . I explained in an earlier post how Application of Yamashita provides an alternate approach under which the courts would have jurisdiction to hear this claim.

Let's hope that the Supreme Court has the courage to step up to the plate on this one.

If it doesn't, it becomes our collective moral obligation to demand that Congress extend its undoubted power to extend the jurisdiction of the federal courts to Guantánamo. Not that I'll hold my breath, you understand.

BBC NEWS | South Asia | Former Guantanamo inmate sues US

A man who was imprisoned by the US military at Guantanamo Bay, Cuba, is suing the Pakistani and US governments for damages worth over $10m.

Pakistani cleric Mohammed Sagheer was seized by US troops fighting in Afghanistan in 2001.

He spent roughly a year with other suspected al-Qaeda and Taleban operatives in the US military prison.

His lawyers say he is suing for the mental and physical torture he endured at Camp X-Ray in Guantanamo Bay.

'Treated like an animal'

Mr Sagheer filed his suit in an Islamabad court on Tuesday.

Lawyers acting for him said the case could be heard in a Pakistani court because Pakistan's interior ministry is one of the defendants.

In the first case of its kind, Mr Sagheer described his arrest by American authorities as illegal and his treatment at the prison camp in Guantanamo Bay as extremely inhuman.

He says he was kept for more than a year in a prison cell that was like a cage meant for animals.

During this period he says he was treated in the worst possible manner and was repeatedly interrogated about his links to al-Qaeda and Osama bin Laden.

Despite insisting that he no ties to the Islamic militant group, Mr Sagheer says he was punished by the authorities for what they saw as his lack of co-operation.

After being released by the Americans, Mr Sagheer says he was sent back to Pakistan, where he spent a few more days in detention.

The court has decided to hold a preliminary hearing for the case in the third week of December.

I suspect that the US will plead sovereign immunity and act of state, if it even shows up to defend. As the act of state doctrine has roots in the comity among nations, I imagine that Pakistan would ordinarily respect this claim…

On the other hand, if the Pakistanti court were to decide that the 'torture' alleged violated fundamental norms of international law, it might not dismiss the claim out of hand, as it is sometimes suggested that act of state ought not to protect against fundamental violations of international law.

Two earlier BBC stories on this are here and here.