Semantic Attack

Now that I have disgorged that technological hairball in the form of the previous post, I can get on with the usual soap box hysteria and cranky ranting. I apologize in advance for the length of the quotes. We begin with the following:

In a 43-page opinion, Circuit Judge Karen Lecraft Henderson found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantánamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The 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 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 Guantánamo had any constitutional rights.

Yeesh. This was a decision (Jan 11, 2008) from the District of Colombia circuit court regarding an action brought by four former British detainies in Guantanamo Bay against Donald Rumsfeld and senior military officers for ordering torture and religious abuse.

Think about what this is saying. For those of you endeared by bullet points:

• Detainees are not persons according to US law.
• Torture is an expected consequence of military detention, so the tortures should not be responsible for their actions.
• Torture is not a criminal act unless the torturer is expected to know that the person is a US Citizen.

I have a great deal to say about this, including some legal goop about recent laws and tort actions against federal employees. From a purely emotional level I am disgusted. This sick, venal horrorshow needs to be dragged out into the sun and left to die. The Rule of Law that I am such a fan of has been perverted to such a degree that I am sometimes lost in a sea of minutia.

To flavor the following discussion, I provide a short (ha!) quote regarding US interrogation policy. This is from a larger post on the same subject.

"The C.I.A.’s interrogation program is remarkable for its mechanistic aura. 'It’s one of the most sophisticated, refined programs of torture ever,' an outside expert familiar with the protocol said. 'At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.'"

Details, details, details. In comments on the original posting I ran across a very lucid description of why the tort was tossed out.

I don't like it either (look up tort first), but technically the decision is correct, the Federal Tort Claims Act clearly applies here so they had little choice. Same with foreigners not being persons as far as US constitutional rights are concerned, as this been held so by US courts for quite some time.

For uninitiated the primary purpose of FTCA is to shield government people from having to answer criminally for things they do, this is somewhat similar in purpose to the infamous "qualified immunity". Torts usually result in monetary compensation, prison time is highly unusual. The calculation here is this, if we think we will lose we will settle in tort proceedings to avoid harsher penalties, if not we will fight it out in courts. Fine by me, although some government transgressions are so serious prison time would be highly desirable if only for its presumed deterrent quality.

Ok. I am a detail oriented sort of person and I recognize that in the current legal environment what was done is technically based on fact and current case law. I have an honest question that I am having a little difficulty answering. For how long has a 'person' in the US been distinct (in a legal sense) from a regular human sense. This is in the context of there being no congressionally declared war, so short term derailments of habeas from (say) the US Civil War do not count. Recently the wedge was driven in regarding 'illegal immigrants' , the war on (some) drugs and now terrorism. What about pre-Regan?

I am offended so for two reasons. The first is that my vision of the Law is different than the vision being brought forth by the legal arguments being brought forth specifically by the executive branch. It makes me angry when the nice rational universe that I have worked so hard to get along with starts saying things like :

Salmons did pledge that the Executive Branch will use care in deciding who is designated an “enemy combatant.” In response to one judge’s question about the President applying the tag to an activist from the People for the Ethical Treatment of Animals, Salmons joked, “the representative of PETA can sleep well at night.”

Nevertheless, Salmons argued that the judgment on who is deemed an “enemy combatant” is solely the discretion of President Bush. [NYT, Feb. 2, 2007]

These assholes can not be trusted to not crash the clown car, and I am supposed to trust them?? Is this what rule of law has become? It sickens me.

The second is more fundamental, and is really an extension to the first. It involves the idea that by redefining the legal meaning of a word like person, it is possible to sidestep any and all moral obligations that are inherent in the meaning of the original content. This is just sophomoric bullshit. Year after year we sit around and are talked down to again and again about Responsibility and Duty and Freedom and Sacrifice by whatever political party happens to be in charge. What is happening is just word play, but the end result is the continuing erosion of our political existence. A semantic attack on our freedoms.

A perfect example of this can be found during the following transaction:

The administration’s contempt for habeas corpus and other fundamental rights was reflected again in a strange colloquy between Attorney General Alberto Gonzales and Sen. Arlen Specter during a Senate Judiciary Committee hearing on Jan. 18.

Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; that it merely says when the so-called Great Writ can be suspended.

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

The idea of habeas corpus pre-dates the writing of the constitution by hundreds of years. To even suggest that this right is not built into the fabric betrays their contempt for the lifeblood of the democracy. The Constitution typically defines rights by describing negatives - by describing what the government can not do.

Enough of this. I need a drink.

Enjoy the following while you can:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.