SCOTUS: Rummy Is Immune in Torture Suit

Today, SCOTUS declined to review an Appeals Court decision that ruled that Rummy and 10 other DOD officials are immune from suit for torture.

The Court’s denial of review of Rasul, et al., v. Myers, et al. (09-227) leaves intact a federal appeals court ruling that former Defense Secretary Donald Rumsfeld and ten military officers are legally immune to claims of torture and religious bias against inmates who were at Guantanamo but have since been released.  The Obama Administration had urged the Court not to hear the case, saying that, whatever claims the four ex-detainees were now making, they had no legal basis for those challenges at the time they were at the U.S. military prison in Cuba — that is, between January 2002 and March 2004.

The D.C. Circuit Court had ruled in favor of immunity, and in doing so avoided a repeat of its earlier decision — vacated by the Supreme Court — that Guantanamo prisoners had no constitutional rights.  The Justices had ordered reconsideration of that conclusion. Instead of ruling anew on the legal challenges, the Circuit Court opted for an immunity finding.  The Supreme Court’s denial of review does not stand as a precedent on that point, or on the substance of the ex-prisoners’ challenges.

As Adam Serwer points out, SCOTUS’ refusal to review the immunity ruling once again deprives the American justice system of a definitive ruling that torture is wrong.

This case, Rasul v. Rumsfeld, was important not just because of the alleged abuse involved. It’s important because civil liberties groups are seeking, as Ben Wizner of the ACLU, who is one of the lawyers in the Mohamed, et al. v. Jeppesen, rendition case, said last week, a “binding definitive determination” from the courts that the kind of treatment suspected terror detainees were subjected to under the Bush administration was illegal.
Without one, government sanctioned torture may make a comeback.

But I guess Rummy and the others who facilitated torture like it that way.

20 replies
  1. alabama says:

    Torture is fine with the leadership. It was ever thus. It was sanctioned by the founder of our particular protestant background, namely John Calvin, who, according to some, insisted that Michael Servetus–whom he snared in Geneva with a promise of safe conduct, and whom he detested for his heretical writings on the Trinity–be burned to death with green wood.

    Calvin is America, and the SCOTUS merely reminds us of this long-abiding fact. In fact, it’s their job of work to remind us of where we come from.

  2. bobschacht says:

    Is this decision neutral, or in favor of Rummy & Co.?
    And how narrow is the decision? We’re likely to interpret the broad implications, but sometimes their decision is on really narrow grounds, such as “this comma was placed after the dependent clause rather than before the dependent clause, so the defendent is not involved” or some such.

    In other words, is this decision such as to quash *any* further lawsuits against the defendents for torture, or merely to quash lawsuits that are based on certain particular grounds?

    Bob in AZ

    • Mary says:

      The Supreme Court gets to pick and choose what cases it will review. Here, it denied certiorari (meaning it opted out of reviewing the case).

      On the one hand, most cases appealed to the Sup Ct are denied cert and that isn’t precedential, but on the other hand it leaves the appellate decision in place and with precedential impact.

      It’s in the proud tradition of the denial of Khalid el-Masri’s appeal.

      In the end, it’s the courts who decide whether they are relevant or not. They can be strong institutions, or just an establishment of petty tyrants who will crack down on sole practitioner criminal defense lawyers and nail them to the wall over nothing while ducking and sucking over institutional challenges from the Executive branch over things like creating American torture regimes.

  3. earlofhuntingdon says:

    The only saving grace from this denial of cert. is that the ruling that is left standing is binding only in its federal judicial circuit. It is persuasive as law in other circuits, but they are free to rule differently. This issue would then return to the Supremes, on the basis of a conflict among circuits on a fundamental issue of law. “Fairness”, in this case, presumably to the defendant-torturers – might dictate that the Supremes take up the case and issue a ruling applying nationwide.

    It worked for integration, maybe it will work for torture. A lot would depend on whether the court’s make-up changes between now and then.

  4. earlofhuntingdon says:

    The DC Circuit is now nearly as “conservative” as the Fourth Circuit, based in Virginia. The immunity ruling is much louder than a mere denial of standing to sue, it is an affirmative defense, and avoids a ruling on the underlying merits. Bush, it seems, has left a large bag of hot potatoes among the garbage, which no one wants to touch. Not much courage to profile there.

  5. Leen says:

    Proving once again that those in the top decision seats for the torture and abuse ARE ABOVE THE LAW..absolutely.

    Punish the lower level flunkies. These criminals really did learn something from the Nuremberg trials. Legally protect your own ass from being held accountable

  6. bmaz says:

    Maybe it is just me and I am punch drunk, but this decision does not bother me as much as it appears to most folks. In the first place, it was as predictable as the emergence of another Tiger Woods mistress. But, secondly, the case involves solely the civil damage claim rights of foreign subjects for acts that occurred completely out of the US jurisdiction; Eisentrager and Verdugo-Urquidez have pretty much controlled this question for a long time, which is we discussed previously in relation to the torture musicians. I am personally much less concerned with their rights to civil damage cases; there are far more important issues of redress that have been foreclosed that I find more compelling. This is not to say I do not wish they could proceed, I do; but this is not maybe the singular heinous wrongheaded decision some are making it out to be.

    • Nell says:

      there are far more important issues of redress that have been foreclosed that I find more compelling

      Would you elaborate a bit on those, bmaz?

      I, too, am more interested in criminal than civil liability on the part of the torture promoters, but could use some refreshing on what avenues remain open and what are functionally closed at this point.

      • bmaz says:

        I have not had a chance to full re-read and digest the DC Circuit opinion again to see the lay of the land. But my recollection is that, absent some willingness of the govt. to be accountable on these issues, and of course there is none, it is a somewhat consistent immunity issue. As to the other things I find more primary, that would be the rights to fair and informed trials, with full confrontation available, and I still have concern about the availability of effective Habeas. While Habeas access has been increased, there seems to be insufficient speed to proceedings and shockingly ineffective enforcement of determinations.

      • bmaz says:

        Well, I dunno, that is kind of a knee jerk reaction from me, I have not had time to really think through it; so take it for what it is worth.

  7. kindGSL says:

    Well it is a conspiracy to commit war crimes, treason and many other impeachable offenses, we shouldn’t be all that surprised to find the courts are also involved in the cover up. We need to look at the court system itself as a potential enemy of the people.

    Wow, this sure is complicated. Do Judges get away with crimes just because they are judges? What if the court is committing treason?

  8. Gitcheegumee says:


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  9. timbo says:

    It’s a disgrace…and an open call for international courts and tribunals to take action…which, hopefully, they will…since torture appears to not fall under the “cruel and unusual” clause of our once respected Bill of Rights.

    Someone in another thread here suggested that the world is headed towards war and anarchy…and this is yet another instance of how that appears to be so…for those in power care only for power and nothing else it would seem.

    • bmaz says:

      No, the protocols allowing international jurisdiction in the face of inaction in the primary jurisdictional country apply to prosecutions, not civil actions such as this.

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