[Peace-discuss] What must be done

[C. G. Estabrook]

[Obama's defenders say, "Well, at least he ended torture!"  But of course he 
hasn't.  Apparently it continues at Bagram, the CIA continues to say that it can 
practice "extraordinary rendition" (kidnapping & torture), and the Obama justice 
department continues to assert (with the aid of the courts) his administration's 
right to torture. Of course all this violates the Bill of Rights, the 
anniversary of which yesterday passed without notice -- suggesting what a dead 
letter the constitution is.  An anti-administration political movement from the 
left and right, and a campaign for impeachment on the basis of war crimes at 
home and abroad, should be be the goal of US politics in the new year.  --CGE]


"Obama Justice Department lawyers argued ... that there is no constitutional 
right not to be tortured ... in a U.S. prison abroad.... [US courts held that] 
detainees at Guantanamo ... are not persons at all for purposes of U.S. law [and 
that] 'torture is a foreseeable consequence of the military’s detention of 
suspected enemy combatants.'"



	US: Guantanamo Prisoners Not ‘Persons’
	by William Fisher, December 16, 2009

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."

The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government 
officials were immune from suit because at that time it was unclear whether 
abusing prisoners at Guantanamo was illegal.

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."

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.

The circuit court ruled that "torture is a foreseeable consequence of the 
military’s detention of suspected enemy combatants."

That opinion was written by Judge Karen Lecraft Henderson, who was appointed to 
the federal circuit court by Ronald Reagan in 1986 and to the Appeals Court in 
1990 by George H.W. Bush.

The British detainees spent more than two years in Guantanamo and were 
repatriated to Britain in 2004 with no charges ever having been filed against them.

Eric Lewis, lead attorney for the detainees, said, "It is an awful day for the 
rule of law and common decency when the Supreme Court lets stand such an inhuman 
decision. The final word on whether these men had a right not to be tortured or 
a right to practice their religion free from abuse is that they did not."

"The lower court found that torture is all in a days’ work for the secretary of 
defense and senior generals," he added. "That violates the president’s stated 
policy, our treaty obligations, and universal legal norms. Yet the Obama 
administration, in its rush to protect executive power, lost its moral compass 
and persuaded the Supreme Court to avoid a central moral challenge. Today our 
standing in the world has suffered a further great loss."

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on 
the case, told IPS, "In many ways the opinion the Supreme Court left standing 
today is worse when one gets past the bottom line – no accountability for 
torture and religious abuse – and digs into the legal reasoning."

"One set of claims are dismissed because torture is said to be a foreseeable 
consequence of military detention," he said. "How will the parents of our troops 
captured in future foreign wars react to that?"

"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.

"The way the case was defended is in some ways emblematic of the Obama 
administration’s waffling on national security issues," Kadidal noted. "On the 
one hand they recognize that torture is reprehensible, doesn’t work, and is 
universally condemned; on the other they don’t want to prosecute people who 
ordered, facilitated, or carried it out, and are actively seeking to eliminate 
other mechanisms for accountability like this case – anything that might lead to 
a court saying crimes were committed and innocent people were brutally abused."

The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal 
Al-Harith – filed their case in 2004 seeking damages from former secretary of 
defense Donald Rumsfeld and senior U.S. military officers for violations of 
their constitutional rights and of the Religious Freedom Restoration Act, which 
prohibits infringement of religion by the U.S. government against any person.

Their claims were dismissed in 2008 by the Court of Appeals for the District of 
Columbia Circuit when that court held that detainees have no rights under the 
Constitution and do not count as "persons" for purposes of the Religious Freedom 
Restoration Act. Last year, the Supreme Court granted the men’s first petition, 
vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider 
its ruling in light of the Supreme Court’s historic decision in Boumediene v. 
Bush, which held that Guantánamo is de facto U.S. territory and that detainees 
have a constitutional right to habeas corpus.

On remand, the D.C. Circuit reiterated its view that the Constitution does not 
prohibit torture of detainees at Guantánamo and that detainees still are not 
"persons" protected from religious abuse. Finally, the Court of Appeals held 
that, in any event, the government officials involved are immune from liability 
because the right not to be tortured was not clearly established.

A second petition filed with the Court in August 2009 pointed out that the Court 
of Appeals decision stands in conflict with all of the Supreme Court’s recent 
precedent on Guantánamo and attacked the notion that the prohibitions against 
torture and religious abuse were not clearly established in 2002 when the 
petitioners were imprisoned.

(Inter Press Service)