In last week’s edition of the Harbus, I published an article on the failure of the American Government to extend constitutional rights to foreigners detained in Guantanamo Bay. On page 5 of the article I asserted that “even if the military chose to systematically murder all of the detainees at Guantanamo Bay, their families would have no legal redress in a U.S. court of law, because foreign nationals on foreign territory do not have access to U.S. courts” (emphasis added).
This was a misstatement of the law, which was called to my attention subsequent to the article’s publication.
I included this statement to illustrate that even as the consequences of Government action become more extreme, constitutional claims against those actions remain banned. This remains true. However, the statement that the detainees’ families would have “no legal redress” under these circumstances is false.
In the case of wrongful death, the detainees’ families would certainly be able to file a civil action under United States tort law. Even though foreign nationals outside the sovereign territory of the United States cannot sue for constitutional claims in U.S. courts, they can sue under civil law. As the situation stands, the Guantanamo detainees still have no constitutional redress, yet if they were hurt or murdered by the military, then they would indeed have access to the American justice system under a different set of legal claims.
Many thanks to Julian Swearengin for calling my attention to this error.