Dred Scott redux:
Enemy combatants denied legal standing
…once again, 144 years after the Civil War, we have established as the law of the land and the policy of the United States government that whole classes of people can be declared ‘non-persons’ and have their liberty stripped away…
By Chris Floyd / December 19, 2009
While we were all out doing our Christmas shopping, the highest court in the land quietly put the kibosh on a few more of the remaining shards of human liberty.
It happened earlier this week, in a discreet ruling that attracted almost no notice and took little time. In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.
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.
This extraordinary ruling occasioned none of those deep-delving “process stories” that glut the pages of the New York Times, where the minutiae of policy-making or political gaming is examined in highly-spun, microscopic detail doled out by self-interested insiders. Obviously, giving government the power to render whole classes of people “unpersons” was not an interesting subject for our media arbiters. It was news that wasn’t fit to print. Likewise, the ruling provoked no thundering editorials in the Washington Post, no savvy analysis from the high commentariat — and needless to say, no outrage whatsoever from all our fierce defenders of individual liberty on the Right.
But William Fisher noticed, and gave this report at Antiwar.com:
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.”
[….]
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.”
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 the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law.
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. They can’t even be sued for, in the specific case under review, subjecting uncharged, indefinitely detained captives to “beatings, sleep deprivation, forced nakedness, extreme hot and cold temperatures, death threats, interrogations at gunpoint, and threatened with unmuzzled dogs.”
Again, let’s be absolutely clear: Barack Obama has taken the freely chosen, public, formal stand — in court — that there is nothing wrong with any of these activities. Nothing to answer for, nothing meriting punishment or even civil penalties. 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 of all those who are arbitrarily declared “suspected enemy combatants.”
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. And what makes them sub-humans? The fact that someone in the U.S. government has declared them to be “suspected enemy combatants.” (And note: even the mere suspicion of being an “enemy combatant” can strip you of your personhood.)
This is what 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. (For a glimpse at just a sliver of such cases, go here.)
One co-counsel on the case, Shayana Kadidal of the Center for Constitutional Rights, zeroed in on the noxious quintessence of the position taken by the Court, and by our first African-American president: its chilling resemblance to the notorious Dred Scott ruling of 1857, which upheld the principle of slavery. As Fisher notes:
“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.
And now, once again, 144 years after the Civil War, we have established as the law of the land and the policy of the United States government that whole classes of people can be declared “non-persons” and have their liberty stripped away — and their torturers and tormentors protected and coddled by authority — at a moment’s notice, with no charges, no defense, no redress, on nothing more than the suspicion that they might be an “enemy combatant,” according to the arbitrary definition of the state.
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?
Source / Empire Burlesque
Thanks to S.M. Willhelm / The Rag Blog
Remember George Orwell’s book “1984”? In it he introduced a concept – the “unperson”. Anyone who was declared to be unperson could be removed from society, imprisoned indefinitely for little or no real reason, and even tortured if necessary to get information from him or her.
Hmmm; sound familiar? So Orwell was 25 years ahead of the real world. He was right, after all.
Unpersons .. sort of like all those unbabies that are unkilled in all those unparenthood clinics.
Spare me the mock outrage. Liberals and Progressives have long ago declared war on unborn unpersons.
DHS. You are half right, they are unborn, but not persons. They are part of the mothers body, in other words they are the mother, until such time as the umbibical cord is cut and the new person draws their first breath. It’s as simple as that.
Odd, isn’t it, that human beings may be considered unpersons, but corporations may be legal persons?? Wow, what a great country!
I might point out as well, in view of Richard and DHS’ topic of exchange, it wasn’t so long ago here in Texas that women and children were legal “chattel”, a category vaguely similar to that of domestic livestock, with woman having suffrage, something like voting cows. Until age 21, a woman LEGALLY BELONGED to her father; he could lock her in her room, beat her black & blue, forbid her to wear lipstick or listen to boogie-woogie music; after marriage, a woman LEGALLY BELONGED to her husband, with the obligation to cook, clean, and have sexual relations at his discretion and to his tastes.
While this is certainly not as absurd as the concept of non-personage, it is important to realize that one need not go all the way back to Dred Scott to identify legal dehumanization.
The only way a woman could obtain individual personhood (e.g., open her own bank account, purchase real estate, execute a binding contract)in Texas (and other states as well), until Texas family law was reformed in the 1970s (yes, children, only 30-odd years ago), was through widowhood. Upon the death of one’s husband, a woman became a “femme sole” and the legal “head” of her own life.
Fifty-+ years of woman suffrage, availability of reasonably reliable and inexpensive female contraception, and the Roe V. Wade decision all preceded the 70s-era reform.
Somehow the title of a novel comes to mind. I think it was “The Pelican Brief” something about birds and Supreme Court Justices. Might have to dig it out and read it again.
Where is the link to the ruleing the actual document?
By this ruleing or your article any one in the US calling them self Sovern individuals (indiviseable)and freeman on the land would be a enemy combatant…This is a propaganda report saying in effect any one who chooses to not to be a PERSON in all caps as in the name orded on birth certificate or any governmnet issued permits and FED SOCIAL SECURITY CARD and such:
JOHN Q. PUBLIC is a PERSON = legal fiction
John Q. Public is a person as in constitutional person proper spelling = constitutional non-fiction = real man free under bill of rights and Constitutional laws
Bill of rights V amendment states ” any person ” as in non-incorporated individual and remember undivided means undivided so i cant be divided in parts and legal fictions…never say your an all caps name on court record and sign all documents with “All rights reserved” under you signature in proper grammer
Bill of rights VI amandment states clear ” in all criminal prosecutions”
please read your bill of rights and understand constitution before appearing in court cause only an apperition or ghost can appear but a man or won walks in on dry land…Ships appear on the horizen and ships are corporations
Pure propaganda this ruleing and article and foolish trick spread around like its a secret to make it go viral on the net to those who appear to be on the lunatic fringe or altunative media— for the uninformed and dead halfling to reactionary activists to stir up BS to get peaople to clain to be a PERSON not knowing its a legal fiction and that it self is your ownership papers right there…The can do what they want say what they want but it dont change the tricknology of what is actuall being said …They want to call freemen enemy combatants and use legal fiction to do it!
Dont fall for this trick. Ill try and locate the Court Document and post it but a man is a man and a woman is a woman period…Dont use titles just your non-fictional name in proper grammer…No Mr. or Mrs. these are royal titles such as Esquire and Sir…
Good read. Very sobering. I think I’ll go puke now.
it is a curious ‘coincidence’ that this article appears now. a week ago I came across another article of recent posting, wherein it clarified that under the legaleze of our current court system, a human being is not a ‘person’. A person, whther it walks and talks and has a temp of 98.6 is the same as a corp or some other from of entity, BUT a ‘person’ is NOT the same as a human being. Therefore, being, declaring ones self as a ‘person’ allows for a broad definition which ‘entitles’ the gov’t to declare you to be whatever they need, for whatever reason. This clarification, along with this article, makes for a uncomfortable and insulting comprehension of who any of us are, believe we are and know what we are. WE ARE THE PEOPLE! Humans, with rights! And WHATEVER POWER tries to enforce the definition otherwise to fit an agenda WE THE PEOPLE DID NOT APPROVE OF, is in for a surprise. It is the course of HUMAN events which define not only the times, but the SPIRIT which resides within us humans. History shows, humans can, and will RALLY to the call when the truth can no longer be denied nor ignored. THAT is what the ‘powers’ fear most. NOT the arguments, containing minutae of ideas and perceptions which can persuade minds singly and enmasse. BUT the Spirit of the human soul. To survive, to fight for survival, or die for the value of what freedom is and means. It may be saddening to accept how far the people have come to wrapping themselves in the comfort of ignorance, yet, when the course of life is altered beyond accepted reasoning and our voices are stifled beyond the borders of our screens, THEY RISK ALL in the vain hope that LAWS of their design will prevail and the Spirit will never awaken, nor will a new flame erupt to challenge them. WE ARE NOT ‘PERSONS’, WE ARE THE ‘PEOPLE’, AS STATED,,,,,”WE THE PEOPLE,,,,”
Its pretty darn funny reading these comments about “we the people” and constitional definitons of personhood from a group that routinely mocks the Constitution.
Progressives thought the unconstitutional federal takeover of healthcare was a great idea and federal control of corporate profits was an even better idea. You reap what you sow.
Tea Parties activisit, like me, have been complaining loudly for years that the Federal government represents the biggest a threat to our liberties and freedoms. But Progressives fell in love with using the Feds to control corporations. I guess it never occured to you that a government that can put corporations under its heel, can easily do the same things to individuals. Fools.
This news is really important for all of us, because it could effect all of us. Thank you for posting it.
I believe that the legal and political and public information structure of a nation (or empire) will always be or become that which maintains the power and wealth distribution. In other words, the laws and politicians and media in our society will become controlled more and more by those people who are the wealthiest and most powerful. This is because they strive to become more and more wealthy and powerful.
Tom Perkins who is a former economic hitman uses the term “corporatocracy” to describe our real political system. I think he has it “nailed”.
So the fact that we can be thrown in jail without any legal recourse when those in power feel threatened by us is pretty typical of countries who’s wealth is very unevenly distributed. Countries like equadore where 99% of the wealth is held by 1% of the population have death squads, and can imprison its citizens without any legal reason. They also use torture and fear to keep its citizens in line.
I believe that as the wealth structure of our nation becomes more and more imbalanced we will become more and more like a “banana republic”, and Orwellian. I hope I’m wrong, but it does seem like we are heading in that direction. Scotty, you can beam me up now. 🙂
Dear Tom,
Orwell wrote 1984 in 1949. 60 years ahead of the real world my friend.
Are you arguing for non-citizen, enemy soldiers to be given the same rights as American citizens?
Hey, wait a minute. “Non-resident aliens” have never been considered “persons” under the US Constitution. “Persons” in this context means residents of the United States or aliens who are on US soil or US territories. For example, German citizens convicted of war crimes in Germany have no US 5th Amendment rights. Likewise, a Mexican resident was held to have no US 4th Amendment rights for an illegal search and seizure conducted in Mexico.
Read the opinion:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200801/06-5209a.pdf
The detainees can still assert their claims of torture against the US Government under the Federal Tort Claims Act. The “torture is foreseeable” comment, while unfortunate, was made in the context of holding the US Government liable for damages for the acts of its agents.
Guantanamo is not a US territory because Cuba retains sovereignty over the base by treaty. When the Supreme Court ruled that the detainees in Guantanamo could use the federal courts to assert their habeas corpus claims, the Court was interpreting a federal jurisdictional statute, not the Constitution.
Don’t blame the Obama administration for this one.
Smoke Alert !!
While blessing torture may appear to be the main reason for declaring one a ‘non-person’ , if that’s possible , I am afraid that this ruling aims at the predictable rebelion which will occur when the dollar bites the dust ( yes , it will make the Watts city war look punny ) .
I am raising the public Alert Level to full 100 % m this is not a joke .
When the government decideds you are a ‘danger’ , you will lose all rights including a lawyer , ponder about it …
Wake up America !
I first heard about this posting on the PodCast “NO AGENDA” with Adam Curry and John C. Dvorak. They spoke very highly of this blog post and with fear about this ruling. Their two day a week show is truly No Agenda and reviews articles from both ends of the political spectrum. They have referred to the US as GITMO west for a long time. I’m going to see if I can find the ruling on line someone. If you find please post. As someone who has (in 50+plus years) gone from objecting to the Vietnam War Democrat to a Retired Military member now disgruntled Republican I can see more than one side. The Tea Party is making more and more sense to me. This blog is very sobering.
“America is dying at the cold hands of the communists now in charge of America.”
Huh?! Don’t pass the buck.
You have a capitalist system which thinks the money is worth more than humanity or freedom. Always have.
It was the imperialism that started the two world wars.
If it was not for the Soviet Union, the capitalists would not be scared so much of you looking for fairer system and give you so much wealth/freedom.
Now they are simply taking everything you’ve enjoyed back.
It is all your fault. You should not have hated the Russians so much (they did nothing to you, didn’t they?), you should not have allowed your government take your freedoms with the Patriotic Act etc.
“Guantanamo is not a US territory because Cuba retains sovereignty over the base by treaty.”
Does the word “hypocrisy” have any meaning in english ?
Your blog is definitely worth a read if anyone comes across it. Im lucky I did because now Ive got a whole new view of this.
So happy to be here in your site. An i love reading your articles. Very informative.