Empty Words
In his Oslo speech accepting the Nobel Prize for Peace this past weekend, Pres. Barack Obama said the following (emphasis is mine):
Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. (Applause.) And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.
Now, from the Center for Constitutional Rights, comes news that completely gives the lie to those noble words (emphasis is mine):
Today, the United States Supreme Court refused to review a lower court’s dismissal of a case brought by four British former detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse at Guantánamo. The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004.
The Obama administration had asked the court not to hear the case. By refusing to hear the case, 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.” Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.
Let’s go over these findings again:
- The Geneva Conventions, which prohibit torture, do not apply to detainees at Guantanamo because “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” In other words, detainees at Guantanamo are not protected by the G.C.’s prohibition of torture because we know that the military tortures detainees at Guantanamo.
- The military personnel who tortured the detainees are not legally accountable because they “could not have reasonably known that detainees at Guantanamo had any Constitutional rights.” This, in spite of the ruling in Boumediene v. Bush, which established that “Guantanamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.”
- Detainees at Guantanamo are not persons under the law.
That last one sent my fingers flying to the Google search box, to look for the exact quote in the infamous Dred Scott decision about blacks having “no rights that white people are bound to respect.” And I found it in an almost three-year-old post at ACSblog, by Martin Magnusson, on the occasion of the 150th anniversary of the decision:
On March 6, 1857, Chief Justice Roger Taney issued what is widely regarded as the worst Supreme Court opinion ever. He noted that the question before the Court was whether African Americans are citizens of the United States and thus able to file suit in federal court. His analysis of that issue is couched in abjectly racist language:
[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.
The response to this opinion was immediate. Rather than settle the issue of slavery, it simply inflamed public opinion and divided the country further. Frederick Douglass assailed Chief Justice Taney’s opinion, noting that the rights of African Americans derive not from any judicial pronouncement, but from natural law[.]
Magnusson then mentions the very connection that occurred to me when I read those words, “The detainees are not persons at all for purposes of U.S. law.”
150 years later, one might ask what the legacy of the Dred Scott decision is. Perhaps its legacy is seen most starkly in the war on terror. In a recent SSRN paper, Professors Jack Balkin and Sanford Levinson suggests that Chief Justice Taney’s analysis of who is [...] entitled to the rights of citizenship is eerily evocative of ongoing debates over who is entitled to constitutional protections:
We get closer to understanding Taney’s logic when we think about the obligations we owe to suspected enemies of the state, and, in particular, how we should conduct what the Bush Administration terms the “global war on terror.” Surely the most dramatic example involves the Administration’s assertions of authority in a famous Office of Legal Counsel . . . memo to engage in torture—or “cruel, inhuman, and degrading” methods of interrogation—on those persons the President deems, often by fiat, potential enemies of the country. Torture, almost by definition, requires treating another person as if he or she has no rights that the interrogator is “bound to respect.”
There are no new moral questions. Just old ones in new clothes.
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16 Responses to “Empty Words”
This is one topic I think Kathy and I are in full agreement on. That fact alone should raise some eyebrows.
Let me say something I rarely feel inclined to do:
Good post Kathy.
P.S. You should have mentioned the Bagram issue as well.
The Huffington post makes the observation ster quoting the same section of the Obama speach as you do:
http://www.huffingtonpost.com/harry-shearer/the…
What would you have done Kathy?
What would I have done about what?
Thank you, Leonidas.
And I didn't include Bagram because I wanted to focus just on this particular decision in this post. There are different kinds of posts — some are more wide-ranging than others. I just wanted to write about this decision. Doesn't mean I don't know or understand about the continuing issues at Bagram.
Edited to add: I think maybe because of the “not persons under the law” part of the ruling, and the brazenness of saying we expect detainees to be tortured. I actually had not seen those sentiments expressed that baldly before. I was very upset, and I just wanted to focus on those particular arguments. It does really bother me that we seem to learn so little from history, from our own national experience. It's Dred Scott all over again. I just don't understand how that happens. It's like Americans forget everything that happened before their own conscious awareness, and the wheel has to be reinvented every damn time.
I'll second Leonidas in saying that this is one of the few times I'm in agreement with you, Kathy- at least on the main point about personhood being used as an exclusionary concept. Some of the opinions, I think, go too far in establishing legal rights for detainees- but the basic rights that apply according to personhood definitely shouldn't be overridden.
Consider two things at the same time:
First, the huge debt that Bush and now Obama are running up. Our national treasure is ensconced in 'off-budget' items.
Second, the subject of Kathy's post. Not only the lack of transparency, but the narrow reading (“The detainees are not persons at all for purposes of U.S. law.”) of the law.
The U.S. is apparently unable to govern itself and live up to the principles espoused in the Constitution.
I am not sure the treatment of these enemy combatants is the main factor behind the United States' pleading for the case in question. It has more to do with the stumbling path we took to get where we are today.
We were attacked by terrorists who destroyed the World Trade Center and damaged the Pentagon. Terrorists such as these have two goals. First, to terrorize the civilian population, destroying their sense of security, forcing them to think every day about the terrorists and the possibility of another attack. And second, to provoke the authorities into overreacting to the attack to prolong its effect and justify it to the terrorists' true audience, in this case the Muslim world, and increase their base of support.
While there is little doubt the 9/11 terrorists accomplished both goals it is the second where they were most successful and that we are still dealing with today. Imagine, this ragtag group, with mere millions of dollars, forced the largest, most powerful country in the world to declare war on them, dramatically elevating their status, scope and support far beyond what they would have had as common criminals. .
The heights of evil our reaction elevated the terrorists to meant when we started the wars we didn't want to call those captured in them prisoners of war because they would have to be repatriated when the war was over, which we were certain would be just a few short weeks. And there was an ideological barrier to treating them as criminals since anyone with common sense can see that judges and the courts are soft and would just set them free to go out onto our streets where they would rape our women and destroy our manly essence. (Sorry, I have learned that some miss sarcasm unless you lay it on really thick)
So we decided to ignore the Constitution and the Geneva Conventions and ended up with enemy combatants, non-persons, who would be considered mistreated under either document.
And now we have to decide what to do with them. And we have decided to take the path of least resistance and go the way that involves continuing the fiction of the enemy combatant. And avoiding investigations and any trials of the people who dreamed up this mess, including civil suits.
I think this path has been taken because the thought is that there are enough other messes left to clean up, combined with problems put off far to long, to spend time wallowing in the past, no matter how satisfying it might be.
It is very important to re-establish the United States’ moral position. But I think in this case it has been decided to do this rhetorically, through moral leadership rather than action. The irony is that by resorting to the principle of pay attention to what I say, not what I do, the President is using the primary tool of his political opposition.
Personally I don't see how you avoid these problems in the future if you don't pursue the people responsible. But at every turn so far the President has been practical, taking what he can get, rather than ideological, stand on principle and get nothing.
It has taken me so long to write this I have missed the discussion. I redefine the word slow. Normally I don't post these when the discussion has gone so far past me but I think there are a few different slants in this post.
Agreed. For me the first great failing was Marbury vs Madison where the US Supreme Court awarded itself unilaterally the power of “judicial review” without a Constitutional authority to do so, there have been many more since then.
No Kathy, Thank you for bringing it to my attention and that of others. I am quick to criticize your arguments when I disagree, it would be hypocritical of me to remain silent when I fully concur.
I gave you a like for that, L.
I'm glad you agree, Christine, and even more to the point, I'm glad you told me.
It is very important to re-establish the United States’ moral position. But I think in this case it has been decided to do this rhetorically, through moral leadership rather than action. The irony is that by resorting to the principle of pay attention to what I say, not what I do, the President is using the primary tool of his political opposition.
This is not just a moral issue, Merkin. The planners and perpetrators of these acts broke the law. They committed war crimes. The U.S. prosecuted and hanged people after WWII for the same crimes that now have suddenly become just “moral” issues, or not even that.
I'm not advocating hanging anyone. I oppose the death penalty just as I oppose torture. But the people responsible for designing and carrying out these acts should (and according to the law, MUST) be tried in court and, if convicted, punished accordingly. There's never a convenient or a good time for this. But there's really no other option unless the U.S. wants to continue to be an outlaw nation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Sometimes you need to call the plumber instead of closing the bathroom door and pretending your clogged toilet doesn't smell of your own excrement. The smell won't go away because the Supreme Court doesn't want to open the door. The odor will only grow more pungent in the nose of the world as they whisper among themselves about the smell coming from behind the locked door in our house.
As I said in the next paragraph, I don't know how you hold people accountable for these crimes if you don't pursue them. I think it is especially important that the government be held to a high standard
The point is that Obama doesn't believe the same. I think they believe that what they have to do to correct all of the problems they inherited they don't need the all consuming media circus an investigation would be. For one thing they would lose all of the bipartisan support they have enjoyed so far.(this is intended to be a joke).
I don't think that any presidency has ever been co-oped by the corporate/military/industrial/wall street forces as quickly as this one has, even before they took office. It took Clinton a good year.
There is absolutely NO correlation between Guantanamo and Dred Scott. You people are wacked.