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The Layalina Review

VOL. V NO. 7, March 13-March 26, 2009

Legal Battles over Torture

While Congress debates whether senior Bush administration officials should be held responsible for torture, humiliation and indefinite detention of prisoners during the "war on terror," some of those prisoners are filing a number of lawsuits, reports The Washington Independent. President Barack Obama argues that these cases should be dismissed on the grounds of national security, while the Justice Department claims that the plaintiffs are entitled to have their cases heard.

In one case, Rasul v. Rumsfeld, currently pending at the United States Court of Appeals for the DC Circuit, four British citizens who were abducted in Afghanistan and sent to Guantanamo Bay claim they were imprisoned in cages, brutally beaten, shackled in painful stress positions, forced to shave their beards and watch their Korans desecrated. They were finally released in 2004 without charge.

"They have sued former Defense Secretary Donald Rumsfeld and other senior Pentagon officials for their treatment," reports The Washington Independent.

Some legal experts believe the court should stay away from judging policymaking, whether the ultimate policies applied turned out to be legal or not. "If we're talking about holding a particular individual liable, we're talking about drawing a straight line between opinions given and acts done," said Daniel Richman, a professor at Columbia University law school.

"At the end of the day people who really were hurt by the government in ways that are legally offensive ought to have some sort of forum to get compensation or vindication," he adds.

However, what seems to be most disappointing to Obama supporters is that he is toeing the Bush administration line on the matter, according to Harvard Law professor Noah Feldman for The New York Times. Feldman explains that while the Bush administration emphasized the President's rights in overriding American and international law "to defend the country," the Obama administration remains silent.

"Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want," says Feldman. He further points out that traditionally the laws of war were designed and establish for struggles occurring between two states, which was not true of the detainees accused of terrorism.

The concept of the unlawful enemy combatant is deeply rooted in international law and custom, including the Geneva Conventions. It refers to those who violate the laws of war by killing civilians or fighting out of uniform, and thus are not entitled to prisoner-of-war status.

According to Feldman, the Obama administration intends to expand presidential power to detain suspects "beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism."

In place of the "enemy combatant" definition, the Obama administration now claims the right to detain anyone who "substantially supported" terrorists, Feldman adds. But the words "substantial support" do not come from international law any more than Bush's "enemy combatant" did.

President Obama is stuck with the detainees Mr. Bush left him, and some may pose real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines, insists Feldman.

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