While we were all out doing our Christmas shopping, the
highest court in the land quietly put the kibosh on a few more of the remaining
shards of human liberty.
It happened earlier this week, in a discreet
ruling that attracted almost no notice and took little time. In fact, our most
august defenders of the Constitution did not have to exert themselves in the
slightest to eviscerate not merely 220 years of Constitutional jurisprudence but
also centuries of agonizing effort to lift civilization a few inches out of the
blood-soaked mire that is our common human legacy. They just had to write a
single sentence.
Here's how the bad deal went down. After hearing
passionate arguments from the Obama Administration, the Supreme Court acquiesced
to the president's fervent request and, in a one-line ruling, let stand a lower
court decision that declared torture an ordinary, expected consequence of
military detention, while introducing a shocking new precedent for all future
courts to follow: anyone who is arbitrarily declared a "suspected enemy
combatant" by the president or his designated minions is no longer a "person."
They will simply cease to exist as a legal entity. They will have no inherent
rights, no human rights, no legal standing whatsoever -- save whatever modicum
of process the government arbitrarily deigns to grant them from time to time,
with its ever-shifting tribunals and show trials.
This extraordinary
ruling occasioned none of those deep-delving "process stories" that glut the
pages of the New York Times, where the minutiae of policy-making or political
gaming is examined in highly-spun, microscopic detail doled out by
self-interested insiders. Obviously, giving government the power to render whole
classes of people "unpersons" was not an interesting subject for our media
arbiters. It was news that wasn't fit to print. Likewise, the ruling provoked no
thundering editorials in the Washington Post, no savvy analysis from the high
commentariat -- and needless to say, no outrage whatsoever from all our fierce
defenders of individual liberty on the Right.
In the wake of the U.S. Supreme Court's refusal Monday to review a lower court's dismissal of a case brought by four British former Guantanamo prisoners against former defense secretary Donald Rumsfeld, the detainees' lawyers charged Tuesday that the country's highest court evidently believes that "torture and religious humiliation are permissible tools for a government to use."
...Channeling their predecessors in the George W. Bush administration, Obama Justice Department lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.
The Obama administration had asked the court not to hear the case. By agreeing, the court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act a statute that applies by its terms to all "persons" did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.
The lower court also dismissed the detainees' claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military's detention of suspected enemy combatants."
The Constitution is clear: no person can be held
without due process; no person can be subjected to cruel and unusual punishment.
And the U.S. law on torture of any kind is crystal clear: it is forbidden,
categorically, even in time of "national emergency." And the instigation of
torture is, under U.S. law, a capital crime. No person can be tortured, at any
time, for any reason, and there are no immunities whatsoever for torture offered
anywhere in the law.
And yet this is what Barack Obama -- who, we are
told incessantly, is a super-brilliant Constitutional lawyer -- has been arguing
in case after case since becoming president: Torturers are immune from
prosecution; those who ordered torture are immune from prosecution. They can't
even been sued for, in the specific case under review, subjecting uncharged,
indefinitely detained captives to "beatings, sleep deprivation, forced
nakedness, extreme hot and cold temperatures, death threats, interrogations at
gunpoint, and threatened with unmuzzled dogs."
Again, let's be
absolutely clear: Barack Obama has taken the freely chosen, public, formal stand
-- in court -- that there is nothing wrong with any of these
activities. Nothing to answer for, nothing meriting punishment or even
civil penalties. What's more, in championing the lower court ruling, Barack
Obama is now on record as believing -- insisting -- that torture is an ordinary,
"foreseeable consequence" of military detention of all those who are arbitrarily
declared "suspected enemy combatants."
And still further: Barack Obama
has now declared, openly, of his own free will, that he does not consider these
captives to be "persons." They are, literally, sub-humans. And what
makes them sub-humans? The fact that someone in the U.S. government has declared
them to be "suspected enemy combatants." (And note: even the mere suspicion
of being an "enemy combatant" can strip you of your
personhood.)
This is what President Barack Obama believes -- believes so
strongly that he has put the full weight of the government behind a relentless
series of court actions to preserve, protect and defend these arbitrary powers.
(For a glimpse at just a sliver of such cases, see here
and here.)
One co-counsel on the case, Shayana Kadidal of
the Center for Constitutional Rights, zeroed in on the noxious quintessence of
the position taken by the Court, and by our first African-American president:
its chilling resemblance to the notorious Dred Scott ruling of 1857, which
upheld the principle of slavery. As Fisher notes:
"Another set of claims are dismissed because Guantanamo detainees are not "persons' within the scope of the Religious Freedom Restoration Act an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow," he added.
The Dred Scott case was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants -- whether or not they were slaves -- were not protected by the Constitution and could never be citizens of the United States.
And now, once again, 144 years after the Civil War, we
have established as the law of the land and the policy of the United States
government that whole classes of people can be declared "non-persons" and have
their liberty stripped away -- and their torturers and tormentors protected and
coddled by authority -- at a moment's notice, with no charges, no defense, no
redress, on nothing more than the suspicion that they might be an "enemy
combatant," according to the arbitrary definition of the state. (Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
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