A number of cases have sought to challenge the legality of the treatment of the detainees held by US forces in Guantanamo and Abu Ghraib in the context of the US-led “War on Terror”. The conduct alleged in these cases, if proven, is likely to amount to torture. These include, as described in one of the cases, “hooding, forced nakedness, housing in cages, deprivation of food, forced body cavity searches, subjection to extremes of heat and cold, harassment in the practice of their religion, forced shaving of religious beards, placing the Koran in the toilet, placement in stress positions, beatings with rifle butts, and the use of un-muzzled dogs for intimidation." (1)
To date the US has not conducted a criminal investigation into these allegations against anyone high up the chain of command (2).
However, in recent years, the victims launched civil claims for damages against US officials based on different causes of actions including the Alien Tort Statute and Bivens action (3).
. Most of the cases were dismissed on immunity grounds. Other doctrines used are the State Secret and political question (4).
To date, plaintiffs have not succeeded in overcoming these barriers in order to reach a ruling on the merits.
In this case, four former Guantanamo detainees, all UK nationals, were seeking damages for their arbitrary detention and torture. In a memorandum opinion issued on 6 February 2006, the District Court of Columbia dismissed the claims on immunity grounds.
Under the “Westfall Act”, Federal Government officials may not be held liable for damages for acts carried out within the scope of their employment, which is defined as conduct “of the same general nature as that authorized, or incidental to the conduct authorized”. It could have been reasonable to expect a court to hold that acts of torture, which are illegal under US federal law as well as international humanitarian and human rights law, would fall outside of the scope of official employment. However, the District Court of Columbia and the Court of Appeals held that the alleged acts of torture that include “interrogation techniques such as the use of stress positions, intimidation by the use of dogs, twenty-hour interrogation sessions, shaving of detainees’ facial hair, isolation in darkness and silence and the use of ‘mild non-injurious physical contact’” (which, according to US law, has to be assumed as true at this stage of the proceedings) fall within the scope of the State’s officials employment because these were “incidental to the conduct authorized” (5). Moreover, the first instance judge notes that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants”, emphasizing that “the heightened climate of anxiety, due to the stresses of war and pressures after September 11 to uncover information leading to the capture of terrorists, would naturally lead to a greater desire to procure information and, therefore, more aggressive techniques for interrogations.” The Court also found that the defendants were acting “to further the interests of their employer, the United States” and that the plaintiffs have not “proffered any evidence that would lead this court to believe that the defendants had any motive divorced from the policy of the United States to quash terrorism around the world” (pp. 34–36). The Court of Appeals followed this line and stated that:
While it may generally be unexpected that seriously criminal conduct will arise ‘in the prosecution of the business’, here it was foreseeable that conduct that would ordinarily be indisputably ‘seriously criminal’ would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants.
- Re: Iraq and Afghanistan Detainees Litigation (2007)
The same immunity was granted in the Re: Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85 (D.D.C. 2007). In this case, a group of Iraqi and Afghani citizens claimed that they had been tortured and abused by US military officials in Iraq and Afghanistan. Their claim was based on the Alien Tort Statute and the Geneva Conventions, stating that the Westfall Act does not applies to intentional torts that violate jus cogens norms. The Court rejected this claim and ruled that there was no per se rule that violations of jus cogens norms of international law were never within the scope of employment. Thus, it held that the defendants were entitled to immunity for Alien Tort Statute claims pursuant to the FTCA, as the acts of detaining and interrogating enemy aliens were within the defendants’ scope of employment, and torture was either of the same general nature that they were authorized to perform or incidental to authorized conduct. Consequently, the defendants were entitled to immunity for the alleged international law violations even if these amount to jus cogens violations.
- Vance and Ertel v. Rumsfeld (2010)
In the case of Vance and Ertel v. Rumsfeld, 694 F. Supp. 2d 957 (N.D. Ill. 2010), the plaintiffs, who alleged torture, were US citizens, and indeed – at least at first instance level – the decision on motion to dismiss resulted in a different outcome. The avoidance doctrines raised by the state were dismissed and with regard to its role during times of war the Court declared:
[W]e are not convinced that dismissing the claim of these two American citizens is a proper exercise of judicial authority. Instead, we believe ‘a state of war is not a blank check’ for the President or high-ranking government officials when it comes to the rights of the American citizens…. When an American citizen sets out well-pled allegations of torturous behaviour by executive officials abroad, we believe that courts are not foreclosed from denying a motion to dismiss such allegations at the very first stage of the trial process (pp. 31–33).
The decision to reject the motion to dismiss is currently before the US Court of Appeals for the Seventh Circuit.
Another similar ruling was rendered by Judge Jeffrey S. White of the District Court of Northern California in the case brought by Mr Padilla. On 12 June 2009, Justice White allowed a lawsuit against former Justice Department official John Yoo to go forward, based on the fact that Yoo wrote official memos justifying “coercive interrogation” of detainees including Padilla (Padilla v Yoo, 633 F. Supp. 2d 1005 (N.D. Cal. 2009)). The White decision is now under review in the Ninth Circuit Court.
On June 2012, the US Court of Appeals for the D.C. Circuit rejected a Bivens claim of an American who claimed that he was tortured in U.S. military custody in Iraq, meaning that US citizens cannot sue government officials for alleged misconduct during military detention in a foreign war zone. According to the Court, the case raises “concerns regarding the conduct of war, the separation of powers, and the public scrutiny of sensitive information.... In addition to our concerns that such a trial would deplete military resources, we recognized that ‘allowing a Bivens action to be brought against American military officials engaged in war would disrupt and hinder the ability of our armed forces to act decisively and without hesitation in defense of our liberty and national interests’.” Allowing such an action, said a three-judge panel, “would hinder our troops from acting decisively in our nation’s interest for fear of judicial review of every detention and interrogation.” Moreover, “Litigation of Doe’s case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.”
Mr Khadr, a Canadian citizen, was arrested by US forces in Afghanistan before his 16th birthday, and had been detained since 2002 in Guantanamo Bay. His legal action involved a number of litigations, including two cases before to the Canadian Supreme Court. The first Supreme Court ruling of 2008 addressed the involvement of Canadian officials in his illegal detention in Guantanamo, and the second case, from 2010, requested his repatriation to Canada.
- Canada (Justice) v. Khadr (2008)
In 2003, Canadian officials interrogated Khadr in Guantanamo Bay and shared the information obtained with US authorities. Faced with criminal charges before US military commissions and for the purpose of his defence, Mr. Khadr sought before Canadian courts an order to disclose all documents in the possession of the Canadian Crown under Section 7 of the Canadian Charter of Rights and Freedoms, including the transcripts of the interviews conducted in 2003. The Minister of Justice opposed the request, arguing that the Charter does not apply outside Canada.
The claim was based on the Supreme Court precedent in Hape, which ruled that in accordance to the principle of comity between nations, Canadian officials operating abroad are required to comply with local law, and therefore the Canadian Charter does not apply extraterritorially. Yet, as an exception to this principle, the Court also established that if Canada is participating in a process that violates Canada’s binding obligations under international law, the Charter will apply to the extent of that participation. Therefore, in order to decide if Canadian officials were bound by the Charter, the question pending before the court was whether the process at Guantanamo Bay at the time that Canadian officials held the interviews and handed them over to US officials was a process that violated Canada’s binding obligations under international law.
Based on US Supreme court rulings in Rasul and Hamdan the Canadian Supreme Court found that the conditions under which Khadr was held in Guantanamo were in violation of international law. Then, the court held that the participation of Canadian official in the “Guantanamo Bay process” constituted a “clear violation of Canada’s international human rights obligations”, and that this was “contrary to Canada’s binding international obligations”(§21, 25). The Court therefore found that the Canadian Charter of Rights and Freedoms was applicable:
We conclude that the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to US authorities at Guantanamo Bay. Given the holdings of the United States Supreme Court, the Hape comity concerns that would ordinarily justify deference to foreign law have no application here. The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both US and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to US authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations. (§26)
The US Supreme Court decisions had a decisive impact on the Canadian Court. These cases were the legal authority to confirm that international law was violated during the detention process of Khadr – an assessment which is required for the application of the Canadian Charter extraterritoriality. In fact, the US Supreme Court rulings in 2004 (Rasul) and 2006 (Hamdan) enabled the Canadian Supreme Court in 2008 to apply extraterritorially (and perhaps retroactively) the Canadian Charter to the acts of Canadian officials in Guantanamo Bay in 2003 – a decision that imposed a remarkable limitation on the executive’s authority. After finding that the Canadian constitution applies in Guantanamo, the Court ordered the Canadian government to disclose to Khadr the transcripts of the interviews and records of the information given to US authorities.
In other litigation, Khadr requested his repatriation to Canada. This was sought as a remedy for Canada’s violation of his constitutional right under Section 7 of the Charter. The lower courts held that under the special circumstances of this case, Canada had a duty to protect Khadr under Section 7 of the Charter and ordered the government to request his repatriation. The Supreme Court declared that Canada had infringed Mr. Khadr’s constitutional rights. At the same time, it decided that the lower courts’ remedy ordering the government to request Khadr repatriation gave “too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests” (§39). Given concerns about lack of detailed information of any negotiations between Canada and the USA that may have taken place and the need to respect the separation of powers between the courts and the executive, the Court ruled that it would be more appropriate to leave it to the government to “decide how best to respond to this judgment” and provided only a declaratory relief. The Court declared that the executive had exceeded its authority, yet the remedy remained deferred to its discretion.
Follow-up to the decision
The follow-up to the Supreme Court’s decision was that the executive made a request to the US government not to make use of any evidence received as a result of the interrogations of Khadr in 2003–4 in which Canadian officials participated, in the prosecution of Khadr before the military commission. The commission process continued in the summer, and Khadr then pleaded guilty to a reduced charge and was sentenced to an agreed-upon eight years’ term of imprisonment. The Canadian government did not go along with the proposed remedy of asking for Khadr’s return prior to trial. On 23 October 2010, Khadr pleaded guilty before a US Military Commission. The US and Canada submitted a diplomatic note to Khadr in which it was agreed that after serving one year in Guantanamo, his request to be transferred to Canada to serve his remaining time there would be approved.
In June 2012, the United Nations Committee Against Torture released a report finding that Canada was violating the obligations of CAT ion the cases of three Canadians prisoners in Syria, and Khadr - detained at Guantanamo Bay. The committee condemned Canada for refusing to apologize and give compensation to the individuals who were tortured in Syria. The Committee also urged Canada to approve Khadr’s request to be transferred to Canada for the rest of his sentence to avoid any future mistreatment, and to compensate him for human rights violations that Canada’s Supreme Court has ruled he actually did suffer (paragraph 16 of the report).
1. Rasul v Rumsfeld, 414 F. Supp. 2d 26 (D.D.C. 2006), p. 26 (hereinafter: The Rasul 2006 case).
2. K. Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-Level United States Officials Accountable for Torture’ (2009) 7 Journal of International Criminal Justice 5, pp. 1098–9. See also Center for Constitutional Rights (CCR) website
3. The Alien Tort Statute grants federal courts in the United States jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. ‘US Code - Section 1350: Alien's action for tort’ (28 U.S.C. § 1350). Claims of US citizens based on the violation of constitutional rights may be brought directly against the responsible officials under the Bivens rule, if it is demonstrated that the alleged misconduct must have violated ‘clearly established rights … of which a reasonable person would have known’. Bivens v Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971).
4. Jamil Dakwar, “Looking Back to Move Forward: Holding the United States Accountable for Torture and Abuse in the Name of Counterterrorism”, in Adalah, On Torure, June 2012, p. 31-40
5. The Rasul 2006 case, p. 33. See also the ruling of the Court of Appeals: "The defendants respond that “[w]here high-level military officials are charged with winning the war on terror, and specifically with detaining and obtaining information from suspected terrorists, the officials’ policies on detention and interrogation, and their supervision of the implementation of those policies, is at least ‘incidental’ to those duties.” The Rasul v Myers case, p. 657.