In torture lawsuits, Obama toes the Bush line
While Congress debates whether senior Bush administration officials should be called to account for the torture, humiliation and indefinite detention of prisoners taken during the “war on terror,” some of those prisoners aren’t waiting around for lawmakers to make up their minds. A growing number of private lawsuits brought by former detainees against former Bush officials are slowly making their way through the courts. And to the dismay of some of its strongest supporters, the Obama administration has, in every case so far, taken the side of the Bush administration, arguing that these cases should all be dismissed.
What’s more, Obama administration lawyers are not arguing for dismissal purely on procedural grounds. In most cases, they’re arguing that the courts should not second-guess the president’s authority in national security matters. They are also insisting that the right to not be tortured, to be treated humanely and to not be detained indefinitely without charge or trial were not clearly established back when government officials violated them. Therefore, under the legal doctrine of “qualified immunity,” those officials should not be held responsible now, the Justice Department claims.
That stance outrages many of the lawyers handling these cases. “Torture has always been illegal,” said Eric Lewis, a partner in the law firm Baach Robinson & Lewis, which is representing four British former Guantanamo detainees against former Defense Secretary Donald Rumsfeld. “Affirming qualified immunity for torture seems contrary to the traditions of the military which abjure torture and contrary to the doctrine of qualified immunity which says you are protected within a large discretionary area,” but not for acts that were clearly illegal. “It can’t be right that prior to Boumedienne” — the landmark Supreme Court case affirming Guantanamo prisoners’ rights to challenge their detention in U.S. courts — “anyone could have thought that torture was legal,” said Lewis.
Lewis is among a group of formidable opponents the administration faces in these cases, including some of the nation’s top lawyers and law schools making powerful legal arguments that former government officials are legally responsible for the torture, abuse and wrongful imprisonment that their policies directed.
In a federal court in San Francisco this month, for example, …
Continue reading. There’s lots more.