U.S. Appeals Court On Abu Ghraib: ‘It Is Beyond The Power Of Even The President’ To Declare Torture Legal

In a major step forward for former Abu Ghraib detainees, the Fourth Circuit Court of Appeals has unanimously declared that even the president cannot declare torture to be legal, and reinstated a lawsuit against a military contractor, CACI Premier Technologies, for its role in torturing four men at Abu Ghraib.

According to the Washington Post, the 2008 case was first dismissed by a lower court which said that the alleged torture was a “political question” surrounded by a “cloud of ambiguity” and beyond the court’s remit. But the judges of the Fourth Circuit Court of Appeals decided unanimously to reinstate the case.

“While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the President to declare such conduct lawful. The same is true for any other applicable legal prohibition.

“The fact that the President — let alone a significantly inferior executive officer — opines that certain conduct is lawful does not determine the actual lawfulness of that conduct.”

The decision continued to note that, while actions can be declared justifiable under the political question doctrine, doing so does not actually indicate whether or not the action has merit.

The ruling was cheered by attorneys from the Center for Constitutional Rights, led by Legal Director Baher Azmy, who are representing the plaintiffs — the alleged Abu Ghraib torture victims — in the lawsuit.

“There is no question that torture is unlawful under domestic, military, and international law. The only issue in this case is whether CACI will be held accountable – or treated with impunity – for its role in torture at Abu Ghraib.”

As The Intercept notes, the theory that war gives the president far-reaching powers in taking action against suspected terrorists gained popularity during the Bush administration, particularly right after the September 11 terror attacks — but those legal theories have been widely discredited since, along with the theory that mass surveillance against American citizens was also justified. America, they note, has fairly absolute anti-torture laws, and is also against numerous international treaties to which the United States is a signatory, notably the Geneva Conventions.

In their unanimous decision, the Fourth Circuit Court of Appeals agreed that torture remains illegal in spite of the exigencies of war, citing not only actual laws, but numerous cases supplying precedent — including Boumediene v. Bush, a 2008 case filed on behalf of Guantanamo Bay detainees, affirming their right to habeas corpus under the United States Constitution, and Hamdan v. Rumsfeld, a 2006 case in which the Bush administration’s military commissions established to try Guantanamo detainees were also unconstitutional. Both cases were eventually heard by the Supreme Court, and both times, the ruling was in favor of the detainees.

Other citations stretched as far back as 1803’s Marbury v. Madison.

The Abu Ghraib case is very similar to the Guantanamo Bay cases, and the Fourth Circuit drew the same conclusions — essentially, that the president cannot declare or determine the legality of any action — that is up to the courts.

“The fact that the President — let alone a significantly inferior executive officer — opines that certain conduct is lawful does not determine the actual lawfulness of that conduct. The determination of specific violations of law is constitutionally committed to the courts, even if that law touches military affairs.”

The lawsuit will now be able to proceed, and will return to the district court for consideration. Plaintiff Salah Hassan called the decision a “white light… for all the just causes in the world.”

“No doubt the result will be a white light in the process of justice in the world at the time.”

[Featured Image by Brendan Smialowski/Getty Images]