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Obama Justice Dept. defends Rumsfeld in torture case
Rachel Oswald
Raw Story
Friday, March 13, 2009
In a brief filed Thursday evening, Obama Justice Department lawyers extended many of the same arguments made by Bush attorneys — that top government officials have qualified immunity from prosecution and that Guantanamo detainees do not have constitutional rights to due process.
The Department of Justice has asserted that a Supreme Court ruling reaffirming the rights of Guantanamo detainees to habeas corpus does not apply to plaintiffs in a case against former Secretary of Defense Donald Rumsfeld because the plaintiffs were released from prison four years prior to the Supreme Court’s decision.
“It is fair to say that the current brief that is filed by the new administration supports a lot of the arguments that were made by the previous administration,” said Kate Toomey, an attorney with Baach Robinson & Lewis who is representing the former detainees in an interview with RAW STORY. “They continue to assert that torture was in the scope of employment and could be reasonably expected. They continue to assert that these [top officials] be entitled to immunity. They also continue to argue that detainees at Guantanamo don’t have constitutional rights.”
The brief was filed as part of the Rasul v. Rumsfeld lawsuit of four former detainees, who include the “Tipton Three,” and are seeking damages for their detention and reported torture at Guantanamo Bay against Rumsfeld, the Chairmen of the Joint Chief of Staffs and other top military officials. The suit charges them with violations of the Fifth and Eighth Amendments, the Alien Tort Statute, the Geneva Conventions and the Religious Freedom Restoration Act. The plaintiffs are individually each seeking $10 million in damages.
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The men were held for more than two years at Guantanamo where they were reportedly subjected to regular beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point and religious and racial harassment. They were never charged with any crime. The men were released in March 2004 and returned to their home country of Britain.
The plaintiffs are also being represented by the Center for Constitutional Rights, which has a full background of the case, including all court documents here.
Thursday’s brief is the latest action in the case after the Supreme Court in December granted the former detainees’ petition to review their case in light of the court’s June 2008 ruling in Boumediene v. Bush that Guantanamo detainees do have a right to habeas corpus. All charges in the case had previously been dismissed by the D.C. Circuit of the Court of Appeals except for the charge of violation of the Religious Freedom Restoration Act.
“Boumediene – 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 violated the Constitution or the RFRA statute,” the brief states.
The department’s request that the Boumediene ruling not be considered in the Rumsfeld case puts the Justice Department directly at odds with statements made by President Obama during the 2008 campaign.
“Habeus corpus … is the foundation of Anglo-American law, which says very simply, if the government grabs you, then you have the right to at least ask, `Why was I grabbed?’ and say, `Maybe, you’ve got the wrong person,” said Obama at a early Sept. 2008 campaign rally where he seemed to refer to just such exactly the case posed by the the Tipton Three.
Shortly after 9/11, the former detainees were in Afghanistan reportedly doing humanitarian work when they were grabbed by a local warlord and handed over to American forces allegedly in exchange for the bounty the military was offering for suspected terrorists.
“The reason we have that safeguard is we don’t always have the right person,” said Obama at the campaign rally. “We don’t always catch the right person. We may think this is Muhammad the terrorist. It might be Muhammad the cab driver.”
Given statements like these made by President Obama, Toomey said she and others involved with the case had been hopeful that the new Justice Department would have taken a stronger stance on some of the most criticized policies of the Bush administration.
“We had hoped that they would file something that separated them from the former administration and obviously we had hoped that they would be taking a stronger moral stance about what should be anticipated from senior officers including the Secretary of Defense on legally standing prohibitions,” Toomey said, adding, “There’s no question that the U.S. law forbids people from ordering torture. And so it’s unfortunate that they have sort of squandered an opportunity to have made that point.”
The Obama Justice Department extends the argument made by the Bush Justice Department that top government officials have qualified immunity when it writes:
“Because government officials are not ‘expected to predict the future course of constitutional law’… decisions that post-date the conduct in question cannot be used to deny qualified immunity.”
Language used in the brief of the individual defendants in the case, including Rumsfeld, having a “clear entitlement to qualified immunity” casts doubt on the hopes of civil and human rights activists that the Justice Department will take up calls to launch criminal prosecutions into the architects and policy designers of some of the most criticized Bush policies such as waterboarding, extraordinary rendition and warrantless wiretapping.
Further light on the department’s position on individual prosecutions of members of the Bush Administration can be gleaned from statements like this in the brief:
“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 also makes the claim that it is “unnecessary” for the Supreme Court to address the question of whether the former detainees have “constitutional due process rights.”
“Plainly, the constitutional rights asserted by plaintiffs, which are still not established today… were not clearly established at the time of the alleged acts in question here. Accordingly, this Court was correct in concluding that a reasonable officer would not have concluded that plaintiffs here possessed Fifth and Eighth Amendment rights while they were detained at Guantanamo.”
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25 Responses to “Obama Justice Dept. defends Rumsfeld in torture case”
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March 13th, 2009 at 12:37 pm
Who, wait a minute. I thought we were all Constitutionalists around here. Accordingly, doesn’t EVERY CITIZEN of the U.S. have a right to be defended? Of course it’s the “Obama Justice Department,” He’s the fucking president. The author of this story is a nearsighted retard.
candymarl Reply:
March 13th, 2009 at 1:05 pm
Rumsfeld is now a private citizen. Let him hire his own lawyers and defend himself and have his day in court. No problem there. If any one who ever worked for the federal government in the past is entitled to defense by the US Justice department then I’m entitled too. I’m a Vet.
shyster Reply:
March 14th, 2009 at 1:03 pm
Obama is Bill preilly and Sean hannity’s wet dream along with the rest of them sick twisted cabal of evil neocons. OBAMA = WAR
http://www.youtube.com/watch?v.....annel_page dire predictions 2009
http://www.youtube.com/watch?v.....annel_page DEMONS DO EXIST
March 13th, 2009 at 12:49 pm
Could it be, the Obama DECEPTION?
Yes, it could!
March 13th, 2009 at 12:57 pm
http://www.wimp.com/thegovernment/
March 13th, 2009 at 1:03 pm
What a whack job! The guy is turning out to be a regular Jimmy Carter. So sad that we (I) fell for it again.
nader paul kucinich gravel Reply:
March 13th, 2009 at 4:19 pm
Pres Carter stands with the PEOPLE
(he is honest about his mistakes)
AIPAC, Neocons, RNC, & DNC fear him
[most PEOPLE know he is a good man]
~ They would not let him speak at the Dem Conv in Denver ~
Free Speech?
Home of the Free?
March 13th, 2009 at 1:05 pm
Change??? Hahaha
March 13th, 2009 at 1:12 pm
Only Jimmy Carter didn’t try to bomb Iran, he left that to the Neocons…..
March 13th, 2009 at 1:12 pm
You’re not suppose to obey unconstitutional orders….or is that only military training?
March 13th, 2009 at 2:03 pm
Rumsfeld is also the guy behind leagalizing the nuerotoxin aspartame.
March 13th, 2009 at 2:11 pm
ASPARTAME!!
Bluebottle Reply:
March 13th, 2009 at 3:16 pm
Yea! Wot dat man ? I ain’t tried dat yet..
March 13th, 2009 at 4:06 pm
It’s disgusting, and pathetic, that a BLACK MAN would ride into town on a ‘white horse’, making all kinds of commitments to CHANGE what G.W.B. destroyed, and yet consistently evinces Uncle Tom behavior. It’s not just an insult to black people, it’s an outrageous slap in the face to all Americans (of the U.S.). How about holding his feet to the fire by impeaching him for lying to the voters!? That’s what SHOULD be done!
March 13th, 2009 at 4:08 pm
Here’s your CHANGE in action people!
This is what you drooled over during the campaign and cried for after the election.
The CORRUPTION WILL CONTINUE unabated and your money will continue to be given to the cause of the NWO and you all WILL LOVE IT.
How much does it take for you people to see through the bullshit that happens right before your eyes?
What has to happen for you to see that you can have NO REAL CHANGE?
You are ALL SLAVES to the US CORPORATION!
Mr. Soetoro is the CEO, and your money and lives will be cut short because of your shortsightedness.
Welcome to the NWO. FOOLS!
Templi Beholder Reply:
March 13th, 2009 at 9:15 pm
The slave thing has gone on for 10000 yrs. They call it employees and managers now. But the ghetto or worse is what you get if you don’t play ball. Why would anything change now. I don’t see the NWO as changing anything I am suspicious what is going to go if the specious NWO takes over. What could get worse.
March 13th, 2009 at 5:24 pm
Impeach Obongo now!
Idiotic Right Wingers Reply:
March 13th, 2009 at 7:36 pm
Maybe try being less of a racist bigot and maybe people will listen.
March 13th, 2009 at 7:35 pm
You guys should check this out. Alex Jones has had a few misses in criticizing Obama. Let’s see if Alex Jones will talk about this. Obama is secretly trying to regulate the net and this is one big step.
http://wikileaks.org/wiki/Obam.....0_Mar_2009
March 13th, 2009 at 7:39 pm
OBAMA WILL END UP IS PRISON BEFORE HIS TERM IS UP HE WAS BORN IN AFRICA AND IS AN ILLEGAL ALIAN
SEE OBAMA CRIMES .COM FOR PROOF
winstonsmith Reply:
March 14th, 2009 at 12:19 pm
Yea, and pigs might fly…not.
March 13th, 2009 at 11:15 pm
Guess it is all koshar to pick on Obama, since none had the balls for the last eigth years to say any thing against GWB & Co because they would have made sure that all critical citizen(s ) should not only called enemy of the state but marked for life as a threat to the homeland security –Ha! Ha!! Ha!!!
I guess we all respect the tough crook and screw the honest guy, because honesty is a part of weakness in our dictionary. Please do the right thing for once and for a change.
March 13th, 2009 at 11:57 pm
Same thing but a different color than a Bush.
March 14th, 2009 at 3:54 am
And you may ask yourself
What is that beautiful house?
And you may ask yourself
Where does that highway go?
And you may ask yourself
Am I right? …am I wrong?
And you may tell yourself
My god!…what have I done?
Same as it ever was…same as it ever was…same as it ever was…
March 14th, 2009 at 7:24 am
thats insane rumsfeld should dig into his warehouse full of our tax money he has and pay for his own SCUMBAG defense TAX dollars will pay for it though
http://www.libertywheel.com