Supreme Court Fails to Tackle Torture – in the Past or in the Future
Since
the dying days of the Bush administration, when the Supreme Court
savaged the indifference of the executive branch and of Congress towards
the cruel mess they had created at Guantánamo, by ensuring that the
prisoners
had constitutionally guaranteed habeas corpus rights,
it has, sadly, all been downhill when it comes to judicial oversight of
the national security state.
Moreover, in two recent decisions, the
Supreme Court has shown indifference to torture, either in the past or
in the future.
In the three years since that landmark case,
Boumediene v. Bush, the prisoners’ initial success in the District Court in Washington DC., where they
won 38 of the first 52 cases,
has been abruptly halted, as right-wing judges in the D.C. Circuit
Court, led by Senior Judge A. Raymond Randolph, have pushed back,
insisting that little evidence is required to continue holding men
indefinitely, even if, as in most cases, they were nothing more than
insignificant foot soldiers for the Taliban, rather than international
terrorists.
In response to this repeated hurling down of gauntlets by Judge
Randolph, who is notorious for approving every piece of
Guantánamo-related legislation that was subsequently overturned by the
Supreme Court, there has been no repeat of
Boumediene. In the
last few months, lawyers for the prisoners have tried to undermine Judge
Randolph and his colleagues on numerous fronts. Eight Guantánamo cases
have made their way to the Supreme Court, as
SCOTUSblog reported back in December, but all have failed.
Some of these cases have previously been discussed here. There are,
for example, the poor Uighurs, innocent Muslims from China’s Xinjiang
province, seized by mistake but trapped in Guantánamo because no one
wants to allow them to be resettled in the US. Their attempt to secure
justice in the courts finally came to an end last month, when the
Supreme Court
refused to consider their case, leading to
an extraordinary and eloquent lament by one of their attorneys, Sabin Willett.
Before that, Judge Laurence H. Silberman, another aged right-winger, had wandered off on an extraordinary tangent
about the perceived threat of terrorists in the case of a generally
insignificant Yemeni, Yasein Esmail, who lost his appeal, and in March
another generally insignificant Yemeni, Uthman Abdul Rahim Mohammed
Uthman, whose habeas petition was granted
in February 2010 by a judge who perceived that the government’s
evidence consisted entirely of statements made by prisoners who had been
tortured or whose testimony was officially regarded as unreliable, had his successful petition reversed.
On that occasion, the culprits were a panel of judges that included
another well-known right-winger, Judge Brett Kavanaugh, who declared, asProPublica reported,
“that the government doesn’t need direct evidence that a detainee
fought for or was a member of al-Qaeda in order to justify a detention.”
The Supreme Court fails to tackle torture in the past
Over the last two weeks, the Supreme Court has cemented its
reputation as a court that has turned its back on the lingering
injustices of the Bush administration, which have, in addition, been
endorsed and defended by President Obama. In the first instance, on May
16, the Court refused to grant a day in court to five victims of
“extraordinary rendition,” who have been trying, since May 2007, to have
a court hear their stories of how they were abducted and sent to be
tortured in locations around the world with the help of Jeppesen
Dataplan, Inc., a subsidiary of Boeing, which, it is clear, acted as the CIA’s travel agent for torture.
The five plaintiffs — who include the British residents Binyam Mohamed, rendered to torture in Morocco, and Bisher al-Rawi, kidnapped on business in the Gambia and rendered to the CIA’s “Dark Prison” in Afghanistan — won a crucial appeal
in their case in March 2009, in the Ninth Circuit Court of Appeals,
when the government’s attempt to protect itself (and its predecessors)
from scrutiny by invoking the little known and little used “state
secrets doctrine” was thwarted by a panel of three judges, who ruled
that the executive branch’s claim that it was entitled to dismiss
lawsuits merely by invoking the words “national security” would
“effectively cordon off all secret actions from judicial scrutiny,
immunizing the CIA and its partners from the demands and limits of the
law.”
That ruling, however, was overturned last September, when a full
panel of judges supported the government’s unprincipled use of the
“state secrets doctrine.” As I explained at the time:
[W]hen asked to rule on whether these five men should
have their day in court, or whether the government should be allowed to
dismiss their lawsuit by claiming that the exposure of any information
relating to “extraordinary rendition” and torture threatened the
national security of the United States, American justice contemplated
looking at itself squarely in the mirror, telling truth to power, and
allowing these men the opportunity to address what had happened to them
in a court of law, but, at the last minute, flinched and turned away. By
six votes to five, the Court decided that, in the interests of national
security, the men’s day in court would be denied.
In declining to review the men’s case, the Supreme Court has, as described in a strongly worded editorial in the New York Times, “abdicated [its] duty” and allowed “a major stain on American justice” to proceed unchecked.
The Times‘ editors did not mince their words. After noting
that the abduction of “often innocent” foreigners, and their rendition
to “countries well known for torturing prisoners” was “central to
President George W. Bush’s antiterrorism policy,” and that he “then used
wildly broad claims of state secrets to thwart any accountability for
this immoral practice,” they added that “President Obama has adopted the
same legal tactic of using the secrecy privilege to kill lawsuits,” and
that therefore the only hope lay with the courts.
The editors’ verdict on the Supreme Court was harsh but completely
justified. After noting first of all that the Ninth Circuit Court of
Appeals “gave in to the pretzel logic shaped by the Bush administration
that allowing the torture victims a chance to make their case in court
using nonsecret evidence would risk divulging state secrets,” and that
the Supreme Court has now “allowed that nonsense to stand,” the editors
added:
By slamming its door on these victims without
explanation, it removed the essential judicial block against the
executive branch’s use of claims of secrecy to cover up misconduct that
shocks the conscience. It has further diminished any hope of obtaining a
definitive ruling that the government’s conduct was illegal — a vital
step for repairing damage and preventing future abuses.
They also stated:
The Supreme Court should have grabbed the case and used
it to rein in the distorted use of the state secrets privilege, a
court-created doctrine meant to shield sensitive evidence in actions
against the government, not to dismiss cases before evidence is
produced.
In conclusion, the Times‘ editors pointed out that this was
“not the first time the Supreme Court has abdicated its responsibility
to hear cases involving national security questions of this sort,”
lamenting that not even a single one of the justices was prepared to
offer “a dissent or comment to let the world know that the court’s
indifference was not unanimous,” either in the Jeppesen case, or, last
year, in the case of Maher Arar, an innocent Canadian sent to Syria by George W. Bush to be tortured, or even, in 2007, in the case of Khaled El-Masri, a German citizen, seized by mistake, who was rendered to a torture prison in Afghanistan.
“What the world sees,” the editors added, “is rendition victims blocked from American courts while architects of their torment write books bragging about their role
in this legal and moral travesty … The Supreme Court’s action ends an
important legal case, but not President Obama’s duty to acknowledge what
occurred, and to come up with ways to compensate torture victims and advance accountability.”
Unfortunately, as they also added, “It is hard, right now, to be optimistic.”
The Supreme Court fails to tackle torture in the future
In its second recent abdication of responsibility, the Supreme Court
dismissed the last of the Guantánamo-related cases to come before them
on May 23, with only two dissenters, Justice Stephen G. Breyer and
Justice Sonia Sotomayor, prepared to consider Khadr v. Obama, a case named after Omar Khadr, but now, after Khadr accepted a plea deal last October, dealing solely with the question of whether the courts have any say in where Guantánamo prisoners are sent.
Related to Kiyemba v. Obama, the Uighurs’ case, which
involved other questions regarding the courts’ ability to dictate where
Guantánamo prisoners are — or are not — sent, the focus in Khadr
was an attempt by prisoners to prevent the administration from forcibly
repatriating them to countries where they fear the risk of torture. In
defense of the administration, this has not often been an issue,
although President Bush repatriated two Tunisians unwillingly, and Obama has done the same with two Algerians, but it remains a worry (as, for example, in the case of Ahmed Belbacha,
an Algerian who is terrified of being repatriated), and it is, of
course, disappointing that only two justices were prepared to consider
the prisoners’ legitimate fears.
Instead, they have, once more, handed the decision making process to
the D.C. Circuit Court, where judges, using a narrow reading of an Iraq
detention case (Munaf v. Geren) decided on the same day as Boumediene, have ruled, as SCOTUSblog described it,
that they have almost no power “to control the ultimate fate of
Guantánamo detainees,” and that the prisoners themselves “have no other
constitutional rights than a basic right to file a habeas challenge to
their detention.” The Circuit Court also ruled that a 2005 federal
immigration law “bars a Guantánamo detainee from making a claim in US
court that a transfer to a given nation will violate a global treaty
against torture.”
With this decision, as SCOTUSblog noted, “The chances that the
Supreme Court will review the way lower courts have implemented its
constitutional decision on the legal rights of detainees at Guantánamo
Bay moved close to the vanishing point .” It was also noted, in what
could almost be read as a sad epitaph for any hope that the law will
ever lead to the closure of Guantánamo:
In terms of constitutional history, the Court’s sweeping declarations in the Boumediene
decision, about the role of the judiciary in keeping the government
from switching the Constitution on and off, now appear to have meant far
less as a check on Executive power than they had seemed when that
ruling came down in June 2008. And, while that decision might once have
seemed to hold out the promise of ending the detention of many held at
Guantánamo, it now appears to mean that some will remain at Guantánamo
for years to come, and that facility will remain open indefinitely.
And that, in the end, is not something that the Supreme Court foresaw when the ruling in Boumediene was issued, and nor, furthermore, should it be something that the Court can now continue to ignore indefinitely.
