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Posted by on Dec 15, 2009 in Breaking News, Politics, Society, War | 14 comments

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:

  1. 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.
  2. 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.”
  3. 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.