The Justice Department argued in a filing Thursday with the U.S. Circuit Court of Appeals for the District of Columbia that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy.
The Obama administration was expected to take another stand affecting Guantanamo detainees’ lawsuits Friday. A federal judge overseeing lawsuits of detainees challenging their detention has given the Justice Department until the close of business to give its definition of whom the United States may hold as an “enemy combatant.”
Obama has pledged to close the Guantanamo Bay detention facility within a year, and Justice Department lawyers are already trying to find courtrooms or foreign countries to place the 240 people still held there.
The new administration is seeking to craft new rules for when and how a terror suspect can be seized, and what interrogation methods may be used in trying to extract information from them. But while it works on those rules, the Obama administration appears to be sticking with Bush administration legal definitions in pending litigation.
Last month in another court filing, the Justice Department sided with the Bush White House by arguing that detainees at Bagram Airfield in Afghanistan have no constitutional rights.
“The president has ordered a comprehensive review of both the government’s overall policy for detainees and the status of detainees held at Guantanamo,” Justice Department spokesman Matthew Miller said. “The Guantanamo detention facility will be closed by January 22, 2010, but in the meantime, we will continue to litigate cases involving detainees.”
The suit before the appeals court was brought by four British citizens – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith – who were sent back to Great Britain in 2004. The defendants in the case include former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff.
Eric Lewis, attorney for the four, said Friday that military officials should be subject to liability when they order torture.
“The upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected,” Lewis said.
The men say they were beaten, shackled in painful stress positions and threatened by dogs during their time at the U.S. naval base in Cuba. They also say they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet.
They contend in their lawsuit that the treatment violated the Religious Freedom Restoration Act, which provides that the “government shall not substantially burden a person’s exercise of religion.”
The appeals court ruled against them early last year, saying because the men were foreigners held outside the United States, they do not fall within the definition of a “person” protected by the act.
But later in the year, the Supreme Court ruled that Guantanamo detainees have some rights under the Constitution. So the Supreme Court instructed the appeals court to reconsider the lawsuit in light of their decision. Associated Press