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12.23.2009

obama & supreme court agree: detainees are not "persons" and torture is logical consequence of detention

[redsock guest post]

In the ever-growing list of ideologies shared by both Barack Obama and the Cheney administration - not to mention some of the most brutal dictators in history - we can add this:
The Obama administration had asked the [U.S. Supreme] court ... [to] 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. ...

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

The United States Supreme Court agreed with Obama's Justice [sic] Department lawyers and agreed not to hear the case, which had been brought by four British former Guantanamo prisoners against former defense secretary Donald Rumsfeld and others.

Shayana Kadidal of the Center for Constitutional Rights found the decision more than a little similar to the Dred Scott decision of 1857. In Dred Scott, the Supreme Court answered what it believed to be a key question
... can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?

with a "No".

Chris Floyd, who writes the Empire Burlesque blog, noted that the current Supreme Court let stand a ruling that
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 ...

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 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. ... ... 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 ...

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. ...

This is 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. ...

Barack Obama has had the audacity to declare himself the heir and embodiment of the lifework of Martin Luther King. Can this declaration of a whole new principle of universal slavery really be what King was dreaming of? Is this the vision he saw on the other side of the mountain? Or is not the nightmarish inversion of the ideal of a better, more just, more humane world that so many have died for, in so many places, down through the centuries?

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