A federal appeals court in Washington appears poised to uphold the dismissal of a suit that alleges government torture in Afghanistan and in Iraq of nine civilians who claim they were beaten, burned and shocked before being released without charges.
Arguing for the plaintiffs today, Cecillia Wang of the American Civil Liberties Union confronted a skeptical U.S. Court of Appeals for the D.C. Circuit panel that seemed unwilling to overturn earlier circuit rulings that blocked holding government officials liable for alleged torture of former Guantanamo Bay detainees.
The plaintiffs, nine men whose allegations were merged into a single case in Washington, are seeking money damages and declaratory relief against former Defense Secretary Donald Rumsfeld and high-ranking military officers. Judge Thomas Hogan of the U.S. District Court for the District of Columbia in 2007 dismissed the suit, saying, among other things, that constitutional rights do not extend to nonresident aliens who alleged torture in countries where the United States is engaged in war.
Wang faced an uphill battle in trying to convince the D.C. Circuit panel—Chief Judge David Sentelle, Senior Judge Harry Edwards and Judge Karen LeCraft Henderson—that there are still unresolved issues in the circuit that would allow the plaintiffs’ suit to proceed in the trial court.
Sentelle and Edwards grilled Wang over and over about how a ruling in favor of the plaintiffs would upset earlier court decisions that said there was no clearly established right that nonresident aliens outside of the United States had constitutional due process rights. A three-judge panel cannot overturn an earlier panel’s decision.
“You can’t prevail under the law of the circuit,” Edwards told Wang at one point. “It’s not your fault. That’s what the law of the circuit is.”
The Justice Department’s Robert Loeb of the Civil Division appellate staff didn’t spend much time trying to convince the panel to affirm the dismissal of the suit. He said the government would rest on its brief and took a seat after a minute or two at the lectern.
A hundred or so spectators crowded the courtroom for the hearing on the fifth floor of the E. Barrett Prettyman U.S. Courthouse in downtown. Six security officers stood along the back wall of the courtroom during the session, which lasted about half an hour.
Outside the courthouse, a group of protesters dressed in orange jumpsuits and wearing black hoods demanded the closure of the Guantanamo Bay military facility. Federal agents monitored the protest, manning posts inside and outside the courthouse at each of its three entrances.
The appeals court did not immediately rule at the end of the hearing.