Guantanamo Prisoners Not ”Persons”
By William Fisher
NEW YORK, Dec 15 (IPS) - 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 Defence 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, DC 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 President Ronald Reagan in 1986 and to the Appeals Court in 1990 by President 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 û no accountability for torture and religious abuse û 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… Full article