No Comment — March 13, 2009, 9:32 am

Standing Firm for Injustice

The Obama Justice Department yesterday again embraced a position of the Bush Administration that Senator Obama appeared to have criticized on the campaign trail. Daphne Eviatar reports in the Washington Independent that:

the department filed a brief renewing the government’s motion to dismiss the case of Rasul v. Rumsfeld. The case is very similar to the lawsuit filed by U.S. citizen and former enemy combatant Jose Padilla against former Deputy Assistant Attorney General John Yoo, which I’ve been following. The plaintiffs in Rasul v. Rumsfeld allege that former Defense Secretary Donald Rumsfeld and other senior Bush officials are responsible for their torture; prolonged arbitrary detention; cruel, inhuman or degrading treatment; cruel and unusual punishment; denial of liberties without due process, and preventing the exercise and expression of their religious beliefs.

According to their legal complaint, Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim — as does a fourth British man — that they were imprisoned in cages, tortured and humiliated, forced to shave their beards and watch their Korans desecrated, until they were returned to Britain in 2004. None were ever charged with a crime.

Their case was previously dismissed on the grounds that Guantánamo detainees (which these individuals are not, they have been released) have no due process rights. Of course, the Supreme Court rejected that view in Boumediene v. Bush, in which it concluded that Guantánamo detainees at least have some rights to challenge their detentions. The matter was sent back to the Court of Appeals for reconsideration.

The Obama Justice Department has adopted the arguments and positions of the Bush team, however. It continues, even in the face of Boumediene, to argue that the detainees have no due process rights; it also argues extensively that Donald Rumsfeld has complete immunity from claims that he was the engineer of torture and mistreatment of the prisoners.

The Justice Department has two transparent objectives in this case. One is to avoid further disclosure of the embarrassing facts surrounding the seizure and detention of the plaintiffs. This was one of dozens of cases in which American officials were hoodwinked by petty Afghan warlords out for a bounty payment, turning over prisoners who had no ostensible connection to the Taliban or Al Qaeda. The second is to keep the illegal practices in Gitmo—including violations of the Geneva Conventions, detailed in their complaint, and torture—under wraps. In embracing the idol of immunity, however, the Obama team is squarely repudiating its obligations under international law. As I note in an article published today in The National, the United States clearly and unequivocally committed itself to launching a criminal investigation of allegations of torture and to providing a path for the compensation of victims of torture. That obligation could be met by providing another channel for compensation, of course, but failing to do so, it is wrong to close the doors of the courts to such claims. Instead of discharging their duty, however, the Justice Department is repudiating it by working to sweep credible allegations of torture under the carpet and by closing the door to any potential claims—in other words, it is systematically obstructing justice.

We should note that the charges linking Donald Rumsfeld to the regime of torture practiced at Guantánamo are anything but far fetched. It’s not just that the torture occurred on his watch. He’s responsible for it. In fact, Susan J. Crawford, the Bush Administration’s seniormost official responsible for detainee cases, reached a formal conclusion that torture occurred. The specific case she has publicly discussed was also, according to the testimony of Lieutenant General Mark Schmitt, overseen and authorized by Donald Rumsfeld personally. Moreover, Rumsfeld’s direct engagement in the process not only of policy making but also oversight over high-value detainees at Guantánamo is documented in Philippe Sands’s book The Torture Team.

Robert H. Jackson, America’s greatest attorney general, called the use of immunity notions to block accountability for the mistreatment of prisoners in wartime an uncivilized practice and committed that it could not stand. He went one step beyond this. America, he committed in his most famous oration, would “press this chalice to its own lips”–namely would agree to hold its own officials accountable by the same standards and rules it advocated at the end of World War II. The Obama Justice Department is working hard to make Attorney General Jackson into a liar. It is also destroying the credibility of President Obama’s commitment to abide by international law.

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