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, as ProPublica 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.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “The Supreme Court’s Failure to Tackle Torture, Now and Forever.”

35 Responses

  1. Andy Worthington says...

    On Facebook, Bruce Newell Haskin wrote:

    you are right – we would expect some form of justice, even after most of the damage has been done …………

  2. Andy Worthington says...

    Eric Gebert wrote:

    And how about the failure to get rid of the unconstitutional Patriot Act. 4-year renewal. Big Brother is STILL watching!

  3. Andy Worthington says...

    Pedro Saboulard wrote:

    The problem, in my opinion, is that the victims of torture are not only the prisoners, but also Justice itself. That is the paradox: we advocate against damage done by torture to others, but we are also attempting to protect the integrity of the system, and therefore protect ourselves. Justice cannot repair the damage done to others, because Justice was among the first victims. The wounds of flesh heal, the wounds of principles rot in power… and get re-elected on 2012? 😉

  4. Andy Worthington says...

    Kevin Kakareka wrote:

    If we the American people do not stand up for the innocent (not all of course, not saying that) inmates in Guantanamo we are no better than the German people in WWII who blindly followed Hitler…….trials were held and many were executed……………especially after the dollar crashes, the world will be relentless against us, we let our government way overstep it’s bounds and we will be held responsible…….anyone that traveled during the Bush administration to Europe can tell you of the resentment towards the American people.

  5. Andy Worthington says...

    George Kenneth Berger wrote:

    I shared this and shall Digg it now. It’s saddening to me that such repatriation is still going on, no matter how few prisoners are sent ‘home again.’

  6. Andy Worthington says...

    Kathleen Kelly wrote:

    This is so shameful.

  7. Andy Worthington says...

    Thanks for the comments, Bruce, Eric, Pedro, Kevin, George and Kathleen. Some great perspectives — on American justice betrayed, on the abandoned prisoners in Guantanamo, and on the disgraceful Patriot Act and its renewal.

  8. Andy Worthington says...

    Harsha Prabhu wrote:

    There is no justice in the US of A!

  9. Andy Worthington says...

    Patrick Walters wrote:

    If we regard how the poor – and particularly poor, non-white communities have been treated by the police/courts throughout U.S. history, has there ever really been “justice” in the “Land of the Free”?

  10. Andy Worthington says...

    Donna Ellison ‎wrote:

    Eric- The fact of the renewal of the Patriot Act, along with the addition of Sec.1034 of the NDAA, which will expand the war on terror to allow the use of military force even against US citizens, (Andy wrote/posted on 25-5-11), frightens me no end!! I wish US citizens would band together and do something!!

  11. Andy Worthington says...

    Thanks, Harsha, Patrick and Donna — and the 76 people who have shared this to date.
    I think you’re spot-on in the historical analysis, Patrick. I guess the question now, which Donna raised, is whether US citizens can do something about the continuing warmongering and paranoia (whether opportunistic or not) of their elected representatives. The renewal of the Patriot Act is depressing, but so too, of course, is the proposal accepted in the House of Representatives (Section 1034 of the National Defense Authorization Act, as Donna mentioned), which authorizes and attempts to justify an unjustifiable expansion of the Authorization for Use of Military Force, making the entire world into a “battleground” in a newly-revived “War on Terror,” even though (a) there is no reason, with bin Laden’s death, and (b) the powers would be even more sweeping than anything even Bush and his cronies envisaged and secured in the heat of vengeance immediately after the 9/11 attacks. It is very much to be hoped that the Senate — where the Democrats have a majority — will not support Section 1034, which the Obama administration doesn’t want and didn’t ask for, but it remains to be seen. Stay alert!

  12. Andy Worthington says...

    Bill Kunze wrote:

    If it wasn’t for the fact that the political right is so extreme, (and you are those of you who voted for these jerks) I’m not so sure if Obama would get re-elected this next time around. He’s probably not going to have to much trouble with who’s out there on the right, but the Patriot Act, and torture are two areas that the left, even those in the middle, are not happy with.

  13. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    It seems to me, that the US has made ‘National Security’ into a smoke screen, which they can comfortably hide behind while committing any sort of atrocity that they deem suitable – no matter how low, immoral, unjust, inhumane and reprehensible. They are either in fear or they are creating fear. Probably both. They live in fear because of all the wrongs they have committed, and they know that people will want revenge and they create fear in society so that they can continue on with their ‘war on terror’ and continue on pursuing their own interests globally.

  14. Andy Worthington says...

    Lea Reiter wrote:

    Dugg, Stumbled, and tweeted. Thanks for the good work you do, Andy.

  15. Andy Worthington says...

    Cornelia Maier wrote:

    Indeed, not good and so abusive – torture needs to be tackled ASAP but there seem still to be way too many Bush cronies on this court!!

  16. Andy Worthington says...

    Lea Reiter wrote:

    We knew the fix was in when Obama took office and chose not to prosecute torturers, i.e. Cheney, Yoo, Bybee, etc. Yet some would hold Bush accountable without holding Obama accountable.

  17. Andy Worthington says...

    Cornelia Maier wrote:

    I know Obama should have tackled this right away. Sorry. Of course, that was no good sign for the Republicans to let himself get intimidated and them get away with everything. Nonetheless, let me introduce a new expression for Republican and Republican-inspired injustice and miscarriage of justice: Bush justice.

  18. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    ‎”Bush justice” — there is an oxymoron!

  19. Andy Worthington says...

    Mary Edwards wrote:

    Oxymoron? Interesting! The two words do certainly contradict each other, this we well know, but together they describe exactly what is happening in the American justice system with regards to Guantanamo, etc and that is a system which no longer regards what was enshrined within its statutes, that is; the principle of Innocent until proven guilty.

  20. Andy Worthington says...

    Thanks, Bill, Tashi, Lea, Cornelia and Mary. Great to hear from you all. So glad to know that these topics are of interest, and able to provoke such engaging comments.

  21. Andy Worthington says...

    Douglas Earp wrote:

    Maybe, it is time to vote in some of our best Disney Cartoon Characters. Mickey Mouse for President and Donald Duck for Vice President.

  22. Andy Worthington says...

    Sylvia P. Coley wrote:

    I am afraid that our Supreme Court is a broken “wing” and has been for sometime, I will never forget how Bush got in, never, Al Gore was very gracious! I am actually afraid when something is put into their hands at the point in time. Thanks for this, Andy. How are you doing, anyway?

  23. Andy Worthington says...

    Tom Krohmer wrote:

    History of Humans Used as Guinea Pigs By Government, Military, Business

  24. Andy Worthington says...

    Thanks, Sylvia and Tom. And Sylvia, I’m doing very well. Almost 100 percent recovered!

  25. Andy Worthington says...

    Joan S. Livingston wrote:

    Another broken campaign promise, closing Gitmo. What is wrong with the Court?

  26. Andy Worthington says...

    Good to hear from you, Joan. Sadly, the truth is that, without Justice Stevens, the Supreme Court no longer has anyone pushing to address the implications of Bush’s overreach. I don’t know if this can go on forever, but I would think that, with the exception of the hardline right-wingers (Alito, Thomas), the Court wouldn’t really be happy that Judge Randolph is actively mocking the decision they made in Boumediene.

  27. Andy Worthington says...

    Joan S. Livingston wrote:

    Spain tried to prosecute Bush, & Obama called it off.
    Always good to hear from you; thanks for all you do.

  28. Andy Worthington says...

    Karen Todd wrote:

    it is hard to be optimistic – that the states would not only stoop to torture- call it a useful tool- it is almost as if they want to hold these prisoners for fear that the truth of the cruelty they have had to endure will get out- or is that even it? what with campaign promises just fodder to motivate “the base” and bring on a win- terminal wars and votes on making sure war is our future… on mere whim- patriot acts that are about anything but patriotism- i am not even sure is optimism is the cure for any of this – the spiral is straight down- and they are taking the whole world with them- ugh

  29. Andy Worthington says...

    Thanks again, Joan and thanks, Karen. I agree that it’s hard to be optimistic, but what’s right is what’s right, regardless of whether it’s politically expedient, and so long as there are those of us who refuse to back down then there remains a possibility that justice will prevail.

  30. Andy Worthington says...

    Karen Todd wrote:

    well that makes me feel a bit better- ….i half wonder- what will it take for mankind to embrace justice- and justice us? maybe when all of the oil is gone- and the opium and the money lay smoldering amidst the last of those far flung bombs….is that what it will take for people to begin to see the importance of things such as this? i know many people care- unfortunately we stand unheard in the robust atmosphere of shady deals- and lies it seems.

  31. Andy Worthington says...

    Beautifully put, Karen. Thank you.
    We may be largely unheard, but not entirely. And at least those places where our voices are heard — like here on the Internet — are getting more and not less popular as time goes on.

  32. Andy Worthington says...

    Karen Todd wrote:

    thank you Andy….

  33. Andy Worthington says...

    Joan S. Livingston wrote:

    Patriot Act, FBI repression, 5 wars: there’s a great deal to be unhappy about.

  34. A Glimmer Of Hope Amidst The Hypocrisy - OpEd says...

    […] in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last […]

  35. Time Is Right For Americans To Pay Attention To Human Rights Watch’s New Torture Report - OpEd says...

    […] policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting “state secrets” to shut down court cases. “But there are other ways of providing redress,” she said, adding that “providing redress is […]

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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