Think Humanely

Your President has decided that you deserve to be killed; consequently, he is going to send a drone/special forces/mercenaries to come assassinate you – not arrest you, detain you, or even ship you over to one of our black sites to be tortured indefinitely. You’ll simply be murdered. I’m using the plural version of ‘you’ (although I’m not sure if this should make you more or less frightened) since our President has granted himself the authority to assassinate any and all American citizens. There will be no trial. There will be no warrant. There will be no judge, prosecutor and certainly no defense attorney. There will be his word. He will be the Alpha and Omega, and you will be dead.

This isn’t the insane hypothetical of Glenn Beck, all worked up about what the secretly-Muslim/socialist/Marxist/racist Obama wants to do to White America. This is what Obama has actually argued he has the right to do, and it is what he is actively attempting to do to an American citizen. Please see here for a detailed analysis of the particular case in question. The illegality of such a craven, despotic power is not in question (not by reasonable, moral people at least – and certainly not by those familiar with the actual laws in question). Yet it is a power that as of yet remains unchecked. This hasn’t worked its way up to the Supreme Court (and it’s not yet clear if any court will even allow a challenge to this at all), and the media and most political pundits haven’t done much of anything to denounce it. There is, however, one important exception: Dennis Kucinich, a man who is often ridiculed for, of all things, his appearance, as well as the audacity he shows whenever he “foolishly” runs for President.

On July 30, Kucinich introduced HR 6010 “to prohibit the extrajudicial killing of United States citizens, and for other purposes.” Let’s pause for just a moment and bask in how immensely ludicrous it is that I am writing an article praising a politician sworn to uphold the Constitution for introducing a bill saying that assassinating American citizens – without anything even remotely resembling a trial – should be illegal…I feel a little nauseas. Moving on: below is a brief excerpt from the bill.

(1) On January 27, 2010, The Washington Post revealed that United States citizens have been included on lists maintained by the Central Intelligence Agency (CIA) and the Joint Special Operations Command (JSOC) to be assassinated.

(2) The January 27 Washington Post article reported that the JSOC and CIA maintain lists of individuals deemed ‘High Value Targets’ and ‘High Value Individuals’, whom they seek to kill or capture, that the lists currently include United States citizens, and that the President has authorized military operations with the express understanding that a United States citizen may be killed.

(3) Admiral Dennis C. Blair, then the Director of National Intelligence, in testimony before the House Select Committee on Intelligence on February 3, 2010, confirmed the policy of including United States citizens on such lists, stating that ‘a decision to use lethal force against a U.S. citizen must get special permission’ before the targeting of a United States citizen can be granted and that ‘being a U.S. citizen will not spare an American from getting assassinated by military or intelligence operatives overseas if the individual is working with terrorists and planning to attack fellow Americans.’

(4) The Obama administration has publicly authorized the extrajudicial killing of Anwar Al-Awlaki, a United States citizen born in New Mexico who is accused of involvement in terrorist organizations abroad, the first confirmed United States citizen to be added to a CIA list of targets for capture or killing.

(5) According to an article published in The Nation in November 2009, the private security contractor Blackwater Worldwide, now Xe Services, is intimately involved with the targeted assassination programs run by the CIA and JSOC in Pakistan.

(6) Department of Defense Instruction 1100.22, issued on April 12, 2010, states that ‘security is inherently governmental’ and that the ‘U.S. Government has exclusive responsibility for discretionary decisions concerning the appropriate, measured use of combat power, including the offensive use of destructive or deadly force on behalf of the United States’, particularly in operations that have virtually no transparency, accountability, or oversight.

(7) United States Attorney General Eric J. Holder recognized that the Department of Justice has successfully prosecuted many terrorism defendants in Federal courts, stating on Friday, November 13, 2009, that ‘for over two hundred years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice . . . Once again we will ask our legal system to rise to that challenge, and I am confident it will answer the call with fairness and justice’.

(8) Executive Order 12333 (46 Fed. Reg. 59941; relating to United States intelligence activities), issued by President Ronald Reagan in 1981, stated, ‘No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination’.

(9) Executive Order 11905 (41 Fed. Reg. 7703; relating to United States foreign intelligence activities), issued by President Gerald Ford in 1976, stated, ‘No employee of the United States Government shall engage in, or conspire to engage in, political assassination’.

While the above is plenty disturbing in and of itself, section two of the bill opens with this statement: “due process of law is a fundamental principle in the United States Constitution, the United States has a commitment to the principles included in the Bill of Rights, and no United States citizen, regardless of location, can be ‘deprived of life, liberty, property, without due process of law’, as stated in Article XIV of the Constitution.” The fact that this has to be stated in the actual bill is mind-boggling. What is even worse, however, is that it will likely fall on deaf ears. Due process, the Bill of Rights, these are just words to be disregarded and misrepresented. What matters are to our current crop of politicians and the ignorant Americans who support them are outcomes, and the government has decided that the outcome it wants is one in which it has the authority to kill Americans by fiat. And this is the outcome that both the majority of politicians and the majority of the media, either directly or indirectly, are supporting. The bill has a whopping six co-sponsors, all of whom are Democrats (which is slightly surprising, as you’d think some of those Republicans who fancy themselves libertarians would get on board): John Conyers, Keith Ellison, Bob Filner, Raul Grijalva, Jesse Jackson, and Pete Stark. There are 435 members in the House of Representatives.

The bill has been sent to the House Armed Services Committee, but if you go to Govtrack.us, you’ll find this lovely annotation: “This bill is in the first step in the legislative process. Introduced bills and resolutions first go to committees that deliberate, investigate, and revise them before they go to general debate. The majority of bills and resolutions never make it out of committee.”

There are those who proudly support such a policy, citing their trust in the President to decide who is worthy of life, who is worthy of a criminal trial, and who is worthy of being killed without any legal proceedings whatsoever. This is all perfectly insane, of course, but these people exist nonetheless. Illegality aside, think about the practicality of allowing such a policy.

192 people have been released from prison thanks to DNA testing. This is a staggeringly high number for many reasons. One, DNA is not widely used to help determine whether or not someone in prison is in fact guilty or innocent of the crime that they’ve spent years behind bars for, so the fact that it has been used relatively infrequently has nevertheless lead to this many people being proven falsely convicted is rather astonishing. Two, the vast majority of these innocent people went through a jury trial before a judge and twelve of their peers. They had, at the very least, a public defender. Yet the public defender was unable to establish their innocence. The twelve jurors were confident enough that they harbored no reasonable doubts as to their guilt. The judge found nothing worth setting the verdict aside for, either immediately or on appeal. Yet these men were completely innocent. Three, this figure only includes inmates from the year 2000 and onward.

Now imagine how unbelievably broken a system would be in which all of the above safe guards have been completely removed. There is no defense attorney. There is no judge. There is no jury of one’s peers required to find proof beyond a reasonable doubt. There is only one man – and he makes his decision behind closed doors with absolutely no accountability. There is no appeals process. No hope. If he decides to label you a terrorist/enemy combatant/latest euphemism designed to subvert international and domestic law/scary word, then you have been sentenced to death in absentia. And, according to this man, according to the government he runs, there is absolutely nothing that you or anyone else can do about it. The clock is ticking, and the full force of the American military is ready to rain down upon you. If that many innocent people, despite going through the elaborate process of a police investigation, the district attorney’s office, a grand jury, a jury trial, an appeals process, a governor review, can still be wrongly convicted, how in the hell can we possibly delude ourselves into thinking that an even greater percentage of innocent people won’t just be falsely convicted but murdered under this insane policy?

Perhaps we should ask the other 429 members of the House of Representatives that question.

You’ve likely heard of the disgusting, manufactured controversy over Park51 – which has been dubbed by opponents (and thus adopted by our worthless media) the “Ground Zero Mosque” (ooh! How scary!). In case you haven’t been following the story, or you have been, but unfortunately you’ve been listening to the FOX version of the story, some brief clarification. The “mosque” is a cultural center.

Yes, there are accommodations that will allow people to pray, but so what? Does a Christian visiting the Holocaust memorial who decides to bow his or her head, or maybe even drop to his or her knees and paint a cross across his or her chest, mean that the memorial is now a Catholic Cathedral? Part of this community center’s professed mission includes, “Uphold[ing] respect for the diversity of expression and ideas between all people”; “Cultivat[ing] and embrac[embrac[ing] neighborly relations between all New Yorkers, fostering a spirit of civic participation and an awareness of common needs and opportunities”; “Commit[ting] to social justice, dignified human development and spiritual growth for all.” Are you scared yet? Deeply offended by this affront to American values?

Wait, the opposition says, we have no problem at all with the mosque itself – just with the actual location. Ground Zero™ is Sacred Ground, and it wouldn’t be right to build there. And besides, who cares what they “profess?” They’re dirty, lying Muslims! You know a propaganda campaign has been successful when you’ve not only won a large percentage of people over to your side but managed to get them to accept things that are blatantly, demonstrably false as unquestionably true. From Park51.org:

Lower Manhattan is pretty small. You can’t see Ground Zero from our current building and on completion of our planned building some years from now, there won’t be any views of the Ground Zero memorial from the building. To honor those killed on September 11th, we have planned for a public memorial within our future facility as well as reflection space open to all.

In an article perfectly titled, My Mom Bought Me My First Suit at Ground Zero!, writer Joshua Holland links to the following picture of the exact place, the exact building, that the community center will replace:

Opponents would like you to think that they’re being completely rational, reasonable, upstanding Americans by protesting this particular community center…except they’re not. This is not rational. It is not reasonable. It certainly is not American, at least if by ‘American’ we mean the values that we’re all taught while growing up to protect and appreciate in this country. Opponents often like to cite a recent poll that shows nearly 70% of Americans oppose this building (I wonder how many Americans once supported slavery or how many still oppose same-sex marriage?). Then, in a rather pathetic attempt to underscore just how reasonable and justified they are in their opposition, they continue to cite that of this 70%, roughly 55% acknowledge the right of the center to be built; they just want to stop it anyway. This doesn’t demonstrate anything other than how disconnected and bigoted Americans are. On one hand, we recognize someone’s First Amendment rights. On the other hand, we fully plan on using the tyranny of the majority to ensure that you don’t get to exercise those First Amendment rights. Sound familiar?

Madison, in Federalist No. 10, writes

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.

Another problem with this “good Americans” meme is that this opposition is indicative of some of the most vile, disgusting, and bigoted behavior in recent memory. For instance:

As ThinkProgress and many other outlets noted earlier today, a Muslim New York City cab driver appeared to be the first physical casualty of the controversy surrounding the Islamic center near Ground Zero. The passenger reportedly asked the cab driver if he was a Muslim. After the driver responded affirmatively, the passenger said, “Assalamu alaikum — consider this a checkpoint!” and slashed the driver’s neck and face.

But in addition to acts of bodily harm against Muslims, the ugly and emotional Ground Zero debate has generated hate crimes against a mosque in California. The Fresno Bee reports that a brick was thrown through a window of the Madera Islamic center last Friday. There have been repeated instances of hate directed against this particular mosque. Signs have been left at the Islamic center carrying inflammatory messages, like this one:

The other signs left at the Madera mosque read: “Wake up America, the Enemy is here. ANB” and “American Nationalist Brotherhood.”

ThinkProgress has previously noted that there has been a spate of hate crimes against mosques in America. For instance, a mosque in South Arlington, Texas, was vandalized earlier this month. “The vandals also cut a pipe, allegedly thinking that it was a natural gas line.” Also, the Al-Farooq Islamic Center in Nashville, Tennessee was vandalized with anti-Muslim graffiti. And in a Jacksonville mosque this year, a pipe bomb was set off and a “tissue stuffed inside with white powder” was sent in the mail to one of the community’s local religious leaders.

In Kentucky, a zoning board rejected a proposal for a new mosque, which led to this enlightened reaction: “The Paducah Sun reports that some 250 area residents, packed into the hearing, “cheered” when the board announced its decision.” The Raw Story goes on to report,

What’s more, the Courier-Journal reports the Somali group that had petitioned for a zoning variance to allow the mosque to be built weren’t present at the time of the decision — because security had refused them entry, not realizing they were the people behind the project. The C-J reported:

The Paducah Sun and WPSD-TV reported they did come, but were initially denied entrance because the room was full and officers did not realize they were there to represent the project. When the mistake was recognized, officials searched for them outside the building but could not find them, according to the reports.

Then there is this:

On Sunday, opponents of a proposed Islamic center near Ground Zero stepped to a black man – who was simply walking through the angry crowd – and began shouting their various protest slogans at him.

Someone calls the man a “coward,” prompting the man to yell, “Y’all motherf**kers don’t know my opinion about sh*t.”

Next, a white man in a blue hardhat jumps in his face as the crowd closes in and renews its chants of, “No Mosque Here!”

The black man, who can be heard in the video saying, “I’m not even Muslim,” is a union carpenter who works at Ground Zero, according to the YouTube user who posted the clip.

Here is one of the videos:

Good Americans, indeed.

US District Chief Judge Walker ruled this past Wednesday that Proposition 8 in California, which stripped away the right of marriage from same-sex couples, was blatantly unconstitutional. He specifically pointed to its violation of the Due Process Clause as well as the Equal Protection Clause of the Fourteenth Amendment which “provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the law.’” He wrote, “Proposition 8 is unconstitutional because it denies plaintiffs a fundamental right without a legitimate (much less compelling) reason.”

Below you’ll find numerous excerpts of the 136-page decision, starting first with his comments about the witnesses for both the plaintiffs (thus wanting equal rights for same-sex couples) and then the defendants (those wanting to continue depriving same-sex couples a right enjoyed by everyone else). Then you’ll find excerpts from Judge Walker’s findings of fact. This is his articulation of what information he found to be factual pertaining to the case and the conclusions he has reached. The full decision can be found here, and it is absolutely worth reading in full.

In respect to witnesses for the plaintiffs, he found the following:

Jeffrey Zarrillo […] testified about coming out as a gay man (Tr 77:12-15: “Coming out is a very personal and internal process. *** You have to get to the point where you’re comfortable with yourself, with your own identity and who you are.”) Zarrillo described his nine-year relationship with Katami. (Tr 79:20-21: “He’s the love of my life. I love him probably more than I love myself.”)

Paul Katami […] testified about his reasons for wanting to marry Zarrillo. (Tr 89:1-3: “Being able to call him my husband is so definitive, it changes our relationship.” Tr 90:24-91:2: “I can safely say that if I were married to Jeff, that I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”) Katami explained why it was difficult for him to tell others about his sexual orientation even though he has been gay for “as long as [he] can remember.” (Tr 91:17-92:2: “I struggled with it quite a bit. Being surrounded by what seemed everything heterosexual ***you tend to try and want to fit into that.”) Katami described how the Proposition 8 campaign messages affected him. (Tr 97:1-11: “[P]rotect the children is a big part of the [Proposition 8] campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from. You don’t protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be a part of that category.”)

[…]

Jerry Sanders, the mayor of San Diego and a lay witness, testified regarding how he came to believe that domestic partnerships are discriminatory. (Tr 1273:10-17: One a last-minute decision not to veto a San Diego resolution supporting same-sex marriage: “I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage.”)

Ryan Kendall, a lay witness, testified about his experiences as a teenager whose parents placed him in therapy to change his sexual orientation from homosexual to heterosexual. (Tr 1521:20: “I knew I was gay. I knew that could not be changed.”) Kendall described the mental anguish he endured because of his family’s disapproval of his sexual orientation. (Tr 1508:9-10, 1511:2-16: “I remember my mother looking at me and telling me that I was going to burn in hell *** [M]y mother would tell me that she hated me, or that I was disgusting, or that I was repulsive. Once she told me that she wished she had had an abortion instead of a gay son.”)

The Judge then wrote the following about the expert witnesses for the plaintiffs:

Plaintiffs called nine expert witnesses. As the education and experience of each expert show, plaintiffs’ experts were amply qualified to offer opinion testimony on the subjects identified. Moreover, the experts’ demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified.

Now compare all of the above with the “credibility” of the defendants’ witnesses (as if the mother’s treatment of her son isn’t sufficiently revelatory). First, it should be known that the defendants “elected not to call a majority of their designated witnesses to testify at trial.” They also “called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court.” The highly disingenuous reason given for this was that the defendants feared for the safety of their witnesses. The court then ruled that there would be no cameras in the court – that it would essentially be a closed proceeding. The defense still didn’t want to call their “experts” or try to explain these discrepancies. You might be asking yourself, ‘What discrepancies?’ These:

Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses [Dr. Katherine Young and Dr. Paul Nathanson], as their testimony supported plaintiffs’ claims […] Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples […] Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. […] Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples.

Defendants did, however, call two witnesses, David Blankenhorn and Kenneth Miller. Blankenhorn founded the perfectly legitimate sounding Institute for American Values, whereas Miller is a “a professor of Government at Claremont McKenna College.”

From Judge Walker:

Plaintiffs challenge Blankenhorn’s qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, Tr 2733:2-2735:4, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood, and family structure, Tr 2735:15-2736:9, and his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ing] to be an informed person about it” […] Plaintiffs argue that Blankenhorn’s conclusion are not based on “objective date or discernible methodology, […] The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Judge Walker than decimates – at length – Blankenhorn’s fitness as an expert, and it is very much worth reading. If anyone takes Blankenhorn seriously after reading this, than…wow. Just wow. Miller fared much better (although I suppose that isn’t saying much), but ultimate his testimony was dismissed as well. Walker wrote, “Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.”

The decision then moves into the findings of fact. The following are some excerpts:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained.

Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other […] Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967.

States and the federal government channel benefits, rights, and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.

Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and from deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

Approximately eighteen percent of same-sex couples in California are raising children.

Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.

Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

The children of same-sex couples benefit when their parents can marry.

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage.

Proposition 8 singles out gays and lesbians and legitimates their unequal treatment.

Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.

Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.

No reasonable counter-argument can be made to Judge Walker’s findings, which should bode well for same-sex couples as bigots continue appealing this decisions. However, Proposition 8 is antithetical to reason (and the Constutition), as are those who support it, those who feel that gays and lesbians will always be less than.

I recently wrote about the recent Supreme Court decision allowing corporations to spend unlimited funds on behalf of political candidates here, and the desire on the part of the American government to assassinate its own citizens without charge or trial here. Below you’ll find a discussion on these subjects between Representative Dennis Kucinich and constitutional lawyer and writer Glenn Greenwald. The discussion is conducted by Amy Goodman of DemocracyNow!

The following is a press release from the Center for Constitutional Rights . More thoughts on this – to put it mildly – disappointing decision will follow either later tonight or tomorrow.

December 14, 2009—Today, the United States Supreme Court refused to review a lower court’s dismissal of a case brought by four British former detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse at Guantánamo. The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004.

The Obama administration had asked the court not to hear the case. By refusing to hear the case, 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.

Eric Lewis, a partner in Washington, D.C.’s Baach Robinson & 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. Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. 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.”

The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith – were held from 2002 to 2004 at Guantánamo before being sent home to England without being charged with any offense. They filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American 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 on August 24, 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.

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, said, “We are disappointed that the Supreme Court has refused to hold Secretary Rumsfeld and the chain of civilian and military command accountable for torture at Guantánamo, and that the Obama administration sought to block torture victims from having their day in court. Where can these men seek justice now for the terrible things that were done to them? The entire world recognizes that torture and religious humiliation are never permissible tools for a government, yet our highest court seems to think otherwise.”

CCR has led the legal battle over Guantanamo for the last seven years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at the base, ensuring that nearly all have the option of legal representation, and is representing detainees at Guantánamo before the Supreme Court for the third time this term. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Baach Robinson & Lewis, a Washington, D.C. litigation firm has been in the forefront of detainee litigation, working on behalf of both Guantanamo and Afghan detainees, since early 2004.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.