Cross-posted on The Huffington Post
The Supreme Court speaks not only through its rulings in cases argued before it, but also through its choice not to hear certain cases -- the ones denied certiorari, in legal lingo.
By refusing to hear claims brought by victims of Bush-era torture and detention practices, and failing to decisively reject the government's array of bad excuses for denying them a modicum of justice, the Court in recent years has sent an appalling message of indifference and impunity.
These missing cases constitute a profound stain on the court's record, and they are worth recalling on this week's tenth anniversary of John Roberts's swearing-in as Chief Justice.
Consider, for starters, the Supreme Court's 2007 brush-off of Khaled el-Masri, an innocent German citizen of Lebanese descent who was kidnapped four years earlier while on vacation in Macedonia. Mr. Masri had been detained and tortured in a secret C.I.A. black site in Afghanistan as part of the George W. Bush administration's legally and morally deficient anti-terrorism program.
A lower federal appeals court dismissed Mr. Masri's civil lawsuit, wrongly bowing to the Bush administration's flimsy assertion that proceeding would risk revealing "state secrets." Mr. Masri then turned to the Supreme Court. Instead of grabbing the case and using it as a vehicle to rein in the Bush team's habitual abuse of state secret claims and perhaps lay out procedures for handling potentially sensitive evidence, the justices took a pass. Certiorari denied.
Then there's the awful saga of Maher Arar, an innocent Canadian seized by federal agents at Kennedy International Airport in 2002 based partly on bad information from Canadian officials. After being held incommunicado and harshly interrogated without proper access to a lawyer, he was shipped off to Syria, an example of the Bush administration's notorious "extraordinary rendition" program at work. Mr. Arar was tortured and held for almost a year in a grave-size underground cell before being let go.
After an investigation, the Canadian government formally apologized and paid him nearly $9.8 million. But the Supreme Court, unimpressed, could not muster the four votes necessary to hear his appeal from an atrocious lower court ruling that quashed his civil rights lawsuit without any evidence being taken, holding that the Constitution provides no remedy for his horrible treatment. Certiorari denied.
Similarly, in 2011, the Supreme Court declined to take a case brought by five other individuals with credible claims that they were kidnapped and tortured in overseas prisons. The lead plaintiff, an Ethiopian citizen and resident of Britain named Binyam Mohamed, was arrested in Pakistan in 2002 and turned over to Moroccan interrogators by the C.I.A. His brutal treatment, he said, included having hot, stinging liquid poured on his penis after it was cut with a scalpel.
Mr. Mohamed's petition for Supreme Court review called on the justices to reject the Bush-think peddled by the Obama administration and embraced by a lower appellate court, which decided that allowing torture victims a chance to make their case in court using non-secret evidence would risk divulging state secrets. The justices' response: certiorari denied.
In another travesty a year later, the Roberts Court brushed off the conspicuously deplorable case of an American citizen name Jose Padilla. Arrested by the Bush administration in 2002 and declared an "enemy combatant," Mr. Padilla was transported to the Navy brig at Charleston, S.C., where he was held without charges for almost four years, during the first two of which he said he was denied contact with his family or lawyers.
During that period, Mr. Padilla alleged he was subjected to an extreme regimen of cruel and inhumane treatment, some of it indisputably torture. He told of being shackled for prolonged periods, forced into painful stress positions, and enduring sleep deprivation, physical roughing-up, deafening noises at all hours, exposure to noxious fumes and serious threats of further torture and abuse.
Notwithstanding that conscience-shocking litany, the Supreme Court couldn't find a place on its docket for Mr. Padilla's attempt to reinstate his wrongly dismissed civil action against former Defense Secretary Donald Rumsfeld and other officials for their roles in his unlawful detention and torture. Certiorari denied.
The cavalier move by the justices amounted to a grant of immunity for horrifying executive branch misconduct against an American on American soil. Mr. Padilla was eventually moved out of military custody and convicted, in 2007, of terrorism-related charges. But that did not alter his right to fair and decent treatment or the government's duty to provide it.
It is likely that some members of the court voted against accepting these cases not for lack of caring about the apparent mammoth violation of rights but out of fear of a majority ruling espousing a dangerously expansive view of executive power in the national security sphere. Yet, no one commented or issued a dissent. And the fact that ducking the cases may have been sound strategy to avoid a rights-regressive ruling insensitive to torture victims does not make the Roberts Court look any better.
History will not look kindly on the court's missing-in-action performance here, which stands in marked contrast to its proud (pre-Roberts) decisions standing up for the rule of law by rejecting the argument that Guantanamo lies outside the reach of federal courts and establishing, over Chief Justice Roberts's dissent, that detainees there have the constitutional right to habeas corpus (which it has failed to defend, regrettably, against drastic narrowing in implementation by the Court of Appeals for the District of Columbia).
The Bush White House disgraced itself by authorizing torture and failing to comply with constitutional limits and Congress disgraced itself by allowing it. But, as Jameel Jaffer of the ACLU says, "the signal failure at this point is the failure of courts to enforce those limits."
In swatting away the appeals of torture victims with serial denials of review, the Roberts Court abdicated its crucial oversight role envisioned by the Constitution, further harmed America's reputation around the world, and shut off one of the last remaining avenues for accountability.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.