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Certiorari Denied: Remembering the Roberts Court’s Shameful Abandonment of Torture Victims

By refusing to hear claims brought by victims of Bush-era torture and detention practices, the Roberts Court has abdicated its crucial oversight role and shut off one of the last remaining avenues for accountability.

September 29, 2015

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.