Rights without remedy

It is hardly a specter. It is a reality. For some time cases against the US government and agencies are thrown out on the basis of appeals to national security. There are no rights to see and counter classified evidence against terror suspects. Wrongdoing by agents of
the US government is impossible to prosecute in these cases.


Rumsfeld torture case dismissal raises specter of rights without remedy
10:20 PM ET


[Hina Shamsi, deputy director of the Law and Security Program at Human Rights First and Cecillia Wang, senior staff attorney with the national office of the American Civil Liberties Union]: "On March 1, 2005, the ACLU, Human Rights First, and other co-counsel sued former Secretary of Defense Donald Rumsfeld to hold him accountable for policies and practices of torture and cruel mistreatment of prisoners in U.S. military custody in Iraq and Afghanistan. We represent nine men, each a civilian released without ever being charged with a crime, who were subjected to acts of cruelty including: mutilation, isolation in wooden boxes, prolonged sleep deprivation, beatings, intentional prolonged exposure to extreme temperatures and forced painful stress positions including hanging from the ceiling by the arms. On March 27, 2007, a D.C. federal district court dismissed the lawsuit, Ali v. Rumsfeld.

No court in the United States would tolerate the kinds of brutality our clients suffered in a case on the merits. Yet, even as the district court called our clients’ allegations “horrifying” and said they “stand as an indictment of the humanity with which the United States treats its detainees,” it closed the courthouse door to them on legal grounds.

We brought claims under the U.S. Constitution, the law of nations and the Geneva Conventions. The prohibition against torture is a fundamental principle of both American and international law, and yet the government argued that neither could protect our clients. The government’s defense centered on claims that, even assuming the truth of what happened to our clients, the Judiciary is powerless to take any action to stop U.S. military officials from implementing a policy and practice of torture. The government argued that such policies should be entirely within the sphere of Executive power, and that the Constitution has no reach beyond the borders of the United States.

We disagreed; believing that the Constitution and our laws are stronger, we pointed to a long line of Supreme Court cases indicating that at the very least, U.S. government actors are bound by fundamental constitutional norms, such as the prohibition on torture.

Former military leaders and military law and history scholars filed an amicus brief supporting our arguments in opposition. They belied the government’s arguments that the lawsuit would interfere unduly with military functions, explaining to the court that the ban against torture and cruel treatment was a cornerstone of military law and doctrine. According to amici, not only would judicial enforcement of the torture prohibition not intrude into executive or military functions, but it would support the fundamental military principles of discipline and command responsibility. Indeed, amici said, it was the very core of Secretary Rumsfeld’s employment to be responsible for the conduct of subordinates and to investigate and punish violations: “immunizing [Defendants’] conduct is fundamentally inconsistent with the accountability that is the hallmark of Defendants’ command responsibilities.” The court disagreed.

The court’s decision wrongly renders the U.S. Constitution void in a critical area: When government officials sanction policies and practices that violate Constitutional and international law prohibitions against torture and cruel treatment, there’s no remedy.

Ours thus became the latest in a line of cases in which senior U.S. officials are escaping accountability for torture for reasons entirely unrelated to the truth or falsity of the underlying allegations. Among the others:
Khaled El-Masri sued former CIA director George Tenet and others for the abuse he suffered when he was abducted and held in a secret CIA prison in Afghanistan. El-Masri’s suit was dismissed on the grounds that “state secrets” would jeopardize national security if the case were to proceed.


“State secrets” were also raised by the government as a defense in the case of Canadian citizen Maher Arar, whom the United States rendered to Syria where he was beaten, whipped and held in an underground cell for 10 months. Eventually, a district court judge held that U.S. officials could not be held liable because of national security and foreign policy considerations and dismissed Arar’s case.


Three former Guantanamo detainees, including Shafiq Rasul, sued Secretary Rumsfeld and others for the torture and abuse they suffered at the U.S.’s naval base in Cuba. Their case was dismissed in part because the judge held the defendants were acting within the scope of their employment, which foreseeably included torture, and were thus immune from suit.

Chillingly, the outcome in each of these cases is a vindication of the administration’s expansive notion of executive authority, that Congress and the courts must defer to executive action taken in the name of national security. Although the Supreme Court disagreed with this view in Rasul v. Bush, 542 U.S. 466 (2004), Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and, most recently, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), the lower courts have largely agreed with it.

The outcome of our lawsuit against former Secretary Rumsfeld, and of the others cited above, is sadly reminiscent of the case of Fred Korematsu, who sued the government during World War II to stop the internment of Americans of Japanese ancestry. Although different in scale and the type of wrong, Korematsu and these contemporary cases may prove to be similar in how history views them. The passage of time has shown that the internment was not needed for national security, as the government had argued, and the evolution of constitutional law has judged the Korematsu decision harshly. History will be the judge of our contemporary jurisprudence, as well.

Freedom from torture and cruel treatment is among the core rights on which the United States was founded and for which it has historically stood. But if our courts do not provide a remedy for violations of this right, when victims like our clients are not given at least a hearing on the merits of their allegations, the distinctive promise of American justice rings hollow."

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