Obama and Torture?!
I have been busy, and will continue to be busy, because of Christmas. I’ve not had as much time to read the news. Today, I saw a report which is quite disturbing, but I do not know the veracity of the report. The claim is that the Obama administration’s attorneys not only have argued that torture might be seen as an expected outcome of military detention, but also anyone who is seen as a suspected “enemy combatant” loses their status as a person and so Constiutional rights are not to be accorded to them. Thus, as Chris Floyd writes in the Pacific Free Press (read the full article here):
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.
Does anyone know about this? Is this what actually was said and what the court ruled? Is this a mis-reading of the court’s ruling? If this is true, this is a worse precedent than what we had under GW Bush, but the kind of thing that people knew would happen if Bush’s policies were free to continue.
Even if this is not exactly what happened, we are moving in this directon. What is used to reject the rights of a person in one situation will have consequences in other situations (especially if one finds a way to legally define a real person as a non-person). This is why an authentic understanding of what it means to be a person needs to be established in positive law, and why the issue of torture is intricately linked to all other issues of personhood, such as abortion. Give in on one aspect of the dignity of the human person, the rest quickly follow.
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That’s a report of a report of a report: here’s the third layer down -
http://original.antiwar.com/fisher/2009/12/15/us-guantanamo-prisoners-not-persons/
The SCOTUS appears to have not granted cert. That means that there were not four justices to vote to grant cert (it takes four to grant cert). You can be sure that Robert, Alito, Thomas, Scalia and Kennedy would not have granted cert, because they are deferential to executive military power (Roberts and Alito are deferential to executive power, period, and that’s why Bush 43 nominated them). Not sure how the Souter-Sotomayor transition might have affected this.
On the other hand, refusal to grant cert is not precedent in and of itself. The SCOTUS can pick up the issue any time there are 4 justices willing to grant cert.
That said, this is bad.
Liam
Right, I was uncomfortable with the source — because of how many layers down the pipe the story in it actually is — but I’ve also not had the time to trace this story. I wanted people to understand my questioning of how it was portrayed even if I thought it was revealing something bad. Thus, even though this might not set legal precedent, it certainly shows the direction things are going in the United States, and as you said, “this is bad.” I also think the issue of abortion and torture are intricately linked– it does not surprise me if one does not see a fundamental right to life with dignity, that one can quickly either support abortion (“foreign invader has no rights”) or torture (“not a person”), and so both sides of the political spectrum are working with one side of the culture of death, and we might see both sides merge in the near future as the consequences of one or the other side are logically followed to their natural end.
We here in Europe are beginning to see you Americans as the 21st century’s version of the Nazis–and I am not kidding; I predict that there will be more and more war crimes investigations and trials of American and British government leaders here in the near future. It wasn’t well reported over across the pond, but about a year ago Rumsfeld was bundled overnight out of Paris, into Germany, when a magistrate in a European country–I believe it was Spain–began a process against him for war crimes. And I promise you, you will never see someone like Yoo take a trip over here in the foreseeable future; someone like that wouldn’t dare. We’ll arrest him and try him.
Or, rather, of how our culture of compartmentalization and choice works across superficial political oppositions such that neither side in the debate sees itself as a reflection of the other. The phrase “culture of death” seems to me to be rhetorically powerful but analytically inexact: the interesting question, though, is how a culture of compartmentalization and choice produces the blindness to persons that marks our national collective life.
It seems to me we need a constitutional lawyer to weigh in on this, because from what little I can tell, article Henry links to is incredibly biased and not much interested in the complexities of the law. Here is what appears to me to be an objective account of the D.C. Circuit Court decisions the Supreme Court declined to review.
Chris Floyd says, “[A]nyone 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.” Actually, the question before the D.C. Circuit Court was not whether enemy combatants were persons, but whether the word “person” in the Religious Freedom Restoration Act applied to detainees. This is a much narrower question than whether detainees are human beings or have any rights at all. The D.C. District Court decision was made when the question of whether detainees had constitutional rights was up in the air. Subsequently, the Supreme Court decided in Boumediene v. Bush that detainees in Guantanamo have the constitutional right of habeas corpus review, which clearly means they cannot be treated as nonpersons, as Floyd would have us believe.
I don’t understand why some on the left want to claim that Obama is in favor of torture. There was a clear shift away from the policies of George Bush when Obama took power, although some people don’t seem to want to believe it.
The irony here is that the one judge on the panel who dissented on the whole ‘not a person’ business was Janice Rodgers Brown, one of the Bush nominees that the Dems filibustered for being too extreme.
Good of you to speak for ALL of the people in Europe, digby! Tell me, what is everyone in Europe’s favorite food? Song? Movie?
This is a good example of how relying on third or forthhand accounts can get you in trouble. I’ve read the Circuit Court opinion in question, and there’s nothing in it that allows the government to “disappear” anyone by designating them an “enemy combatant.” Not even close. Basically, the case involves a group of British former detainees alleging that they were tortured and/or had their religious freedom infringed during their detention. What the Circuit Court held was that 1) if they wanted to bring charges against government higher ups based on harsh treatment they first had to exhaust their administrative remedies, and 2) the plaintiffs weren’t covered by a particular statute, the Religious Freedom Restoration Act, because the statute wasn’t intended to cover military detainees. You can say that the Circuit Court got it wrong, but it has nothing to do with the ability of the government to detain people in the first place.
Also, all the Supreme Court did last week was decline to take the case, an act of no presidential value whatsoever. The Supreme Court receives thousands of petitions for cert every year and only takes a handful. Anyone who says that by denying cert the Supreme Court has made any sort of substantive ruling about due process simply doesn’t know what they are talking about.
BA
Of course, I made the point that the source was questionable — it sounded as if it was an exaggeration and confusion of many issues, though I also felt there is something to it, as per Liam’s point.
Well, you wouldn’t expect US policy to change completely just because there’s a new president ? What the Bush team called the “Salvador option” (ie torture, often perpetrated by “veterans” of Salvadoran, Chilean etc. torture chambers, aka contractors) isn’t going to vanish. Not surprisingly, it goes with the same economic policies as in Latin America in the 70s & 80s. “Privatization” aka pillage by American (and other) corporations, at the expensive of the Iraqi and American public. This is pretty much forgotten in light of torture.
For a grizzly account of American torture, I recommend The New Yorker writer Jane Mayer’s book The Dark Side and this Red Cross report from 2007 (pdf)
http://www.nybooks.com/icrc-report.pdf
(and mind you, what the ICRC found is just what happens in the official detention facilities. Iraqi-run- US-supervised facilities, black sites, rendition etc. makes that look tame by comparison.)