WASHINGTON – Among the reports of abuses by government officials at the Navy base at Guantanamo Bay, perhaps few inflamed Muslims worldwide as much as allegations that copies of the Quran were dumped into filthy prison toilets.
Now four former detainees are suing those U.S. officials over those very allegations – and employing a novel argument to do it. Before a federal appeals court in Washington on Friday, they argued that a law passed in the 1990s to emphasize the importance of religion in American life gives them a right to recover damages for torture and faith-based humiliation.
The plaintiffs’ case has already survived an attempt by the government to knock it out, and if the appeals court upholds that decision, the United States will find itself dragged into unexplored legal territory.
The Muslim plaintiffs have help from some unlikely allies. Religious groups as diverse as Jews and evangelicals have filed briefs in support, as has a group of retired military officers.
While these groups’ reasons vary, as do those of the lawyers donating their time to the case, there is a common theme: a desire to infuse the U.S. war on terrorism with an increased moral sensibility. “This is a case about accountability,” said Eric Lewis, the Washington lawyer who represents the four freed detainees.
K. Hollyn Hollman, a lawyer for the Baptist Joint Committee for Religious Liberty, added, “It would be extremely sad if our country was using religion as a means to target people in interrogations.”
But the Bush administration has consistently argued that it can’t be encumbered in combating terrorists and must have discretion to deal with threats as needed. “These plaintiffs are suing for official actions taken in the course of war,” Justice Department lawyer Jonathan Cohn said in court Friday. “They just can’t do that.”
The Pentagon has denied that any copies of the Quran were dumped into toilets but has acknowledged five incidents of Quran desecration at the base.
The case involves four British nationals. Three – Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed – were handed over to the U.S. by warlords in Afghanistan. The fourth, Jamal al-Harith, was in an Afghan prison during the American invasion, having been captured while trying to get to Turkey from Pakistan. While in U.S. custody, Ahmed alleges, he was tortured until he falsely confessed to joining al-Qaida.
All four were taken and held at Guantanamo for two years, where they say they were beaten, shackled in painful positions, threatened with dogs and deprived of food and sleep. They were released in March 2004 after the Pentagon concluded that they posed no threat to national security. They deny being affiliated with any terrorist group.
They sued in federal court in Washington, bringing a bevy of constitutional and statutory claims and asking for more than $10 million in damages. Last year a judge threw out almost all the claims, agreeing with the government’s position that Pentagon officials, from former Defense Secretary Donald H. Rumsfeld on down, couldn’t be sued for actions taken in wartime.
But one claim survived – brought under the federal Religious Freedom Restoration Act. In his decision, U.S. District Judge Ricardo Urbina wrote, “The plaintiffs allege that representatives of the United States government perpetrated blatant and shocking acts against them on account of their religion. Such activities, if true, constitute a direct affront to one of this nation’s most cherished constitutional traditions.”
The act was passed by Congress in 1993 in the wake of several Supreme Court decisions that permitted the government to limit the free exercise of religious activities at work, in prisons and in the military, among other places.
The law says that if the government infringes on someone’s religion, it must have a compelling reason for doing so. It is that principle that has pushed some religious groups to take their stand.
“We in no way want to endanger the government’s efforts against terrorism,” Hollman said. “That said, we highly value religious freedom.”
In their complaint, the detainees say Guantanamo prison guards threw a copy of the Quran into a toilet bucket, forced them to shave their beards, prohibited prayer, deliberately interrupted prayers with the playing of rock music and forced prisoners to pray with exposed genitals.
Both sides appealed Urbina’s decision. On Friday, they argued the case before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
One of the judges is Janice Rogers Brown, an African-American evangelical.
Lawyers for the government did not address the plaintiffs’ allegations of torture and abuse, arguing instead that the religious restoration act does not apply to aliens outside the U.S. One reason, they said, was that the foreign-born detainees at Guantanamo aren’t “persons” as defined by the statute.
“Are you saying aliens abroad aren’t persons?” Brown asked.
“At the very least, the word is ambiguous,” answered Justice Department lawyer Cohn.
Plaintiffs’ lawyer Lewis faced pointed questioning from Judge A. Raymond Randolph, who has consistently supported the administration’s position in rulings on Guantanamo detainees. At one point, Randolph asked the attorney, “What’s your definition of religion?”
After a pause, Lewis said, “I would suggest Islam fits within any definition of religion.”
Randolph also expressed concern that a ruling in the plaintiffs’ favor would perhaps give those abused at the prison at Abu Ghraib the power to sue the U.S. government.
To which Lewis replied, “One place at a time, your honor.”
• Original title: Former Guantanamo detainees sue officials: Four accuse U.S. of faith-based humiliation; religious groups rally around the plaintiffs