x Abu Dhabi, UAESaturday 20 January 2018

Obama team backs Bush's legal stand

Justice department argues that men held in Cuba did not have constitutional right to due process or other legal protections.

The Obama administration has urged the dismissal of a lawsuit brought by four British former Guantanamo Bay detainees against Donald Rumsfeld, the former US defence secretary, that alleges they were physically abused and harassed for their religious beliefs while in custody. In a court filing last week, the US justice department invoked some of the same controversial legal arguments that the Bush administration did in fighting the case, saying prisoners held at the naval base in Cuba did not have a constitutional right to due process.

Even if certain protections, including those prohibiting "cruel and unusual" punishment, did apply to the men, government attorneys said, Mr Rumsfeld and others named as defendants are immune from prosecution because such rights were "not clearly established" during the period of the men's detention. All four were released in 2004 and have returned to the United Kingdom. No charges were ever filed against them.

"We are gravely disappointed that the justice department and the new administration have squandered this opportunity to separate themselves from the policies of the past and to speak with moral force about torture and religious freedom," said Michael Ratner, the president of the New York-based Center for Constitutional Rights, The group, along with a Washington law firm, brought the suit on behalf of the former detainees.

The filing on Thursday came one day before the justice department, in a separate court filing, withdrew the government's use of the term "enemy combatant" and introduced a "new standard" for determining who may be held at Guantanamo Bay. Barack Obama pledged in January to review all cases of detainees still being held there and to close the facility within a year. The former president, George W Bush, had argued that his status as commander-in-chief allowed him to indefinitely hold "enemy combatants" without charge. Under the new policy suspects would be held in accordance with the international laws of war.

Eric Holder, the US attorney general, said in a statement on Friday that the government is working towards a new detainee policy "that strengthens our national security, is consistent with our values and is governed by law. The change we've made today meets each of those standards and will make our nation stronger." But civil liberties activists immediately criticised the move, calling the abandonment of the term "enemy combatant" wholly symbolic and saying the Obama administration will continue to use a broad interpretation of executive branch power and be able to detain anyone found to have provided "substantial" support to al Qa'eda or the Taliban.

"It is deeply troubling that the justice department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States," said Anthony Romero, the executive director of the American Civil Liberties Union. "Once again the Obama administration has taken a half-step in the right direction."

The case against Mr Rumsfeld centres around the detention of Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, known as the "Tipton Three" after their British hometown, and Jamal al Harith, who were held at Guantanamo for more than two years after being picked up in Afghanistan following the September 11 attacks. They maintain they were there doing humanitarian work. The suit, which seeks US$10 million (Dh36.7m) in damages for each man, claims that while at Guantanamo they were subjected to beatings, death threats, interrogations conducted at gunpoint and religious humiliation and harassment. They were prevented from praying daily, they say, and the Quran was denigrated in their presence, including by being placed in a "filthy toilet bucket".

Their suit holds that Mr Rumsfeld and top military officials, including the chairmen of the joint chiefs of staff, are legally responsible on the ground they sanctioned detention policies they knew violated US and international law, including the US constitution, the Geneva Conventions and a US statute governing religious freedom. The case has been in the court system for about four and a half years. The Court of Appeals for the District of Columbia Circuit dismissed it in Jan 2008, prompting the plaintiffs to appeal to the US Supreme Court. In December, the Supreme Court threw out the lower court's ruling and sent the case back for another review in light of its own decision in the high-profile case of Boumediene v Bush. That decision granted prisoners at Guantanamo the right to challenge their detention in federal court.

Attorneys for the justice department, in their filing to the court on Thursday, said the Boumediene ruling should not apply in the case of Mr Rasul and his co-plaintiffs because it came after their release. "At the time of the petitioners' detention (between 2002 and March 2004), it was, at a bare minimum, not clearly established that the Fifth and Eighth Amendments (of the US constitution) protected aliens detained abroad by the military," the brief says.

"Boumedienne - decided four years after plaintiffs' detention ended - cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct was a violation of the constitution or the RFRA [Religious Freedom Restoration Act] statute," it says. The brief says it is "unnecessary", in deciding this case, to consider the fundamental issue of whether detainees have a constitutional right to due process. But it maintains, at the same time, that they do not.

The brief also opens a window onto the new administration's thinking on the possibility of the prosecution of some Bush-era officials for their conduct in the so-called "war on terror". Some congressional legislators and human rights groups have called for such action, but Mr Obama has seemed reluctant to go down that road - even while stressing, in his words, that "no one is above the law". "The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy," the brief says.

The Pentagon cited the Tipton Three in a 2007 news release as being among those former Guantanamo prisoners who have "returned to the fight", although it provided little concrete information. The three men, along with the fourth plaintiff in Rasul v Rumsfeld, maintain they have never been and are not now part of any terrorist organisation. eniedowski@thenational.ae * With additional reporting by Agence France-Presse