Incidental torture: Rasul v. Myers

The D.C. Circuit Court ruled yesterday in Rasul v. Myers (click here for the ruling, pdf) that four former Guantanamo prisoners (the ones the movie “Road to Guantanamo” was about) may not sue Rumsfeld and military officers for torturing them because those officials, in ordering the torture, were not “act[ing] as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence,” but rather it was “the type of conduct the defendants were employed to engage in... The alleged tortious conduct [that means related to a tort, not related to torture, although you could be forgiven for making that mistake] was incidental to the defendants’ legitimate employment duties”. (Alberto Gonzales certified that the defendants were acting within the scope of their employment.)

The ruling doesn’t quite say that torturing prisoners is okay unless it’s just for fun. The court makes the distinction between rogue and non-rogue officials in order to rule that the torturees should first have made a claim to the “appropriate Federal agency” and when that is rejected to sue the US government rather than Rumsfeld, Gen. Myers et al as individuals.

But in making that determination, the courts are saying that the government knew there would be torture when they ordered that prisoners be sent to Guantanamo, that, in the words of the District Court in this case, “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Therefore, logically, they must have intended it. Upholding the lower court, the D.C. Circuit echoes those words: “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.” So that’s okay, then.

Remember when torture in Abu Ghraib was the work of a few “rotten apples”? Here, it’s the torturees who are claiming that the US government never authorized torture and that it condemns torture and considers torture to be criminal behaviour, while it’s the government and the military defendants who are claiming that torture was “incidental” to their duties.