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.
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 been 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, see here and 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.
happy slavery holidays...