Terror suspects can't sue Pentagon

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Four British citizens formerly detained at U.S. Naval Base Guantanamo Bay, Cuba, as terror suspects have no right to sue Pentagon officials over accusations that they were tortured and their religious rights violated, a federal appeals court panel said yesterday.

The unanimous decision by a three-judge panel for the U.S. Circuit Court of Appeals for the D.C. Circuit said Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith could not bring a lawsuit in the case because they are not U.S. citizens and were outside U.S. territory when the purported actions occurred.

"A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise," wrote Appeals Court Judge Karen LeCraft Henderson in the majority opinion. "The plaintiffs have provided no case law, and the court finds none, supporting a conclusion that military officials would have been aware, in light of the state of the law at the time, that detainees should be afforded the rights they now claim."

In a separate concurring opinion, Appeals Court Judge Janice Rogers Brown said the case involved the method of detaining and interrogating suspected enemy combatants during a war — which she described as "a matter with grave national security implications.

"Permitting damages suits by detainees may allow our enemies to 'obstruct the foreign policy of our government,' " she wrote. "Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches ... and creating a damages action could produce 'multifarious pronouncements by various departments.'

"Nor does our government's unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches," she wrote. "Treatment of detainees is inexorably linked to our effort to prevail in the terrorists' war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists."

Judge Henderson and Judge A. Raymond Randolph, who joined in the majority, were named to the court in 1990 by President George H.W. Bush. Judge Brown was appointed in 2005 by President George W. Bush.

The four men, who were released from Guantanamo in 2004 after being held for more than two years, had sought $10 million in damages from former Defense Secretary Donald H. Rumsfeld and 10 military commanders, including retired Air Force Gen. Richard B. Myers, former chairman of the Joint Chiefs of Staff.

They accused U.S. officials of using torture and harassment during their detention, accusations that have been denied by the U.S. military.

A federal judge had dismissed constitutional and international law accusations in their lawsuit but ruled that the men could pursue their claims of religious rights violations. The appeals court ruling overturns that decision, saying that the entire lawsuit must be dismissed because of a lack of jurisdiction and that military authorities at Guantanamo had qualified immunity and could not be sued for acts within the scope of their government jobs.

Rasul, Iqbal and Ahmed were captured in November 2001 by Gen. Rashid Dostum, an Uzbek warlord allied with the United States as part of the Northern Alliance. They were later transferred to U.S. custody in Afghanistan and taken to Guantanamo prison in early 2002.

Al-Harith traveled to Pakistan in October 2001 to attend a religious retreat and later, while in Afghanistan, was turned over to the Taliban. When the Taliban regime fell, he was detained by British officials and transported to Guantanamo in February 2002.