DC Circuit Court of Appeals Judge Janice Rogers Brown

The DC Circuit Court of Appeals ruled in favor of former Secretary of Defense Donald Rumsfeld and other employees of the Defense Department and effectively determined that torture or abuse, which Guantanamo Bay prisoners cleared for release may have experienced, was “incidental” and within the “scope of their employment.”

“Authorized or not, the conduct was certainly foreseeable because maintaining peace, security, and safety at a place like Guantanamo Bay is a stern and difficult business,” the court declared in its decision. “We are therefore hard-pressed to conclude the actions leading to the plaintiffs’ treatment were not ‘a direct outgrowth of the [defendants’] instructions or job assignment.’”

The court also found, “The treatment of the detainees in this case appears to be standard for all those similarly situated.”

Six former Guantanamo prisoners represented by the Center for Constitutional Rights (CCR) alleged in a civil suit that the “Pentagon chain of command authorized and condoned torture and other mistreatment in violation of the Alien Tort Statute, which has historically allowed foreign citizens to pursue cases in courts for human rights abuses. CCR also alleged the chain of command had violated the Vienna Convention, the Religious Freedom Restoration Act, the Federal Civil Rights Act and the US Constitution.

Yuksel Celikgogus, Ibrahim Sen, Nuri Mert, Zakirjan Hasam and Abu Muhammad were subjected to “prolonged solitary confinement, sleep deprivation, exposure to temperature extremes, light and sound manipulation, beatings, threats of transfer to a foreign country for torture, sexual harassment, forced nudity, exploitation of individual phobias, forced stress positions, the removal of ‘comfort items,’ including religious items, deprivation of medical treatment or the provision of medical treatment on the condition of cooperation with interrogators and prolonged ‘short-shackling’ with wrists and ankles bound together and to the floor.”

These six prisoners also were victims of religious and cultural abuse that included “forced grooming, mocking or disruption of prayer or the call to prayer, the removal of religious items and the desecration of their Koran or the Koran of other detainees through intentional touching, dropping, stepping on or throwing it.”

The civil lawsuit also challenged prolonged detention. Hasam, Muhammad and Allaithi were each cleared for release by the Combatant Status Review Tribunal (CSRT). Although they were no longer “enemy combatants,” they remained at Guantanamo.

Hasam was cleared on May 8, 2005, but not released to Albania until November 16, 2006. Muhammad was cleared in May 2005, but was not released until two years later. Allaithi was cleared “sometime after November 2004,” but it took ten months before he was transferred into the custody of Egyptian officials.

Judge Janice Rogers Brown, appointed to the court by President George W. Bush, acknowledged that “memoranda” from the Pentagon made “no mention” of acts during post-clearance detention. “Disruption of religious practices, the shackling and chaining of detainees, and the imposition of solitary confinement” was not encouraged. “Still,” the court determined, the actions “fell within the scope of employment.”

Hasam, as Brown noted, was shackled and chained, made to wear blackened goggles and ear coverings, subjected to sleep deprivation, body searches and was forcibly shaved. Guards disrupted Muhammad’s religious practice and desecrated his Koran after he was cleared by the CSRT. But the court still found that the “need to maintain an orderly detention environment remained after CSRT clearance” and this was all a part of keeping order.

As for detention after being cleared, the court decided that Pentagon officials had issued instructions related to “post-clearance detention” so it was to be expected that the prisoners would not be immediately released. There was no “dereliction of duty” for failing to immediately release them. To think so would “ignore the realities of war, and, for that matter, administrative bureaucracy.”

The court applied the following test, based off previous precedents, to determine whether the conduct was part of employment in the District of Columbia: (1) Was it of the kind a person was employed to perform? (2) Did it occur substantially with authorized times and space limits? (3) Was it “actuated” or driven by a “purpose to serve the master”? (4) If force was intentionally used by the servant against others, was use of force “not unexpectable by the master”?

“The master here is the United States, and it has a well-recognized penological interest in ‘maintaining security and discipline’ at Guantanamo Bay,” according to the appeals court’s decision. Therefore, just about any and all manner of mistreatment could fall within the scope of employment, which involved “serving the master”—the United States—because maintaining order, not the well-being of prisoners, was the first and foremost interest.

Given that the appeals court judges decided torture or abuse was all a part of serving the United States, it was impossible for CCR attorneys to win the argument that the treatment came from “personal animus.” It also became impossible to prove that officers or guards at Guantanamo were not doing what they did to prisoners because they believed they were serving the United States.

And, as if that were not enough to shield so-called incidental barbarity from accountability and justice, the court indicated, despite the vivid details, that the lawsuit failed to “specify how the named defendants were involved with these abuses.”

It was not enough to present the very real and human suffering experienced by prisoners at the hands of officers taking orders from a chain of command in Washington, DC. They had to have inside information on what was driving the decisions to commit torture and abuse of prisoners to prove it was malicious. But CCR could not be specific because of government secrecy.

A prior similar case brought by four former Guantanamo prisoners, Rasul v. Myers, was invoked by the appeals court to justify its decision. The prisoners alleged they had been tortured and arbitrarily detained by the military chain of command led by Rumsfeld. The DC Appeals court dismissed the lawsuit in some form twice before the Supreme Court refused to hear the case in December 2009.

What this means for current and former Guantanamo prisoners is that it is virtually impossible to challenge officers in the military who tortured or abused them. Not only will the DC Circuit Court of Appeals deny damages but they will also rule that the mistreatment was “incidental” to the job of security at Guantanamo, no matter how harsh and cruel it may be.

It also means that there is no clear prohibition on military torture and abuse of prisoners in a time of war. That is, to the judges on the DC Circuit Court of Appeals, torture and abuse is all a part of maintaining “peace, security and safety” at Guantanamo.