Unpersons

[Magda Hassan]

Dred Scott Redux: Obama and the Supremes Stand Up for Slavery
Posted: 18 Dec 2009 05:18 AM PST
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 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.

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?
http://www.chris-floyd.com/component/con...s+Floyd%29

[Magda Hassan]

U.S. Immigration and Customs Enforcement: Secret Detention

December 20th, 2009 Via: The Nation:
“If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement’s (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. Also present was Amnesty International’s Sarnata Reynolds, who wrote about the incident in the 2009 report “Jailed Without Justice” and said in an interview, “It was almost surreal being there, particularly being someone from an organization that has worked on disappearances for decades in other countries. I couldn’t believe he would say it so boldly, as though it weren’t anything wrong.”
Pendergraph knew that ICE could disappear people, because he knew that in addition to the publicly listed field offices and detention sites, ICE is also confining people in 186 unlisted and unmarked subfield offices, many in suburban office parks or commercial spaces revealing no information about their ICE tenants–nary a sign, a marked car or even a US flag. (Presumably there is a flag at the Veterans Affairs Complex in Castle Point, New York, but no one would associate it with the Criminal Alien Program ICE is running out of Building 7.) Designed for confining individuals in transit, with no beds or showers, subfield offices are not subject to ICE Detention Standards. The subfield office network was mentioned in an October report by Dora Schriro, then special adviser to Janet Napolitano, secretary of Homeland Security, but no locations were provided.
I obtained a partial list of the subfield offices from an ICE officer and shared it with immigrant advocates in major human and civil rights organizations, whose reactions ranged from perplexity to outrage. Andrea Black, director of Detention Watch Network (DWN), said she was aware of some of the subfield offices but not that people were held there. ICE never provided DWN a list of their locations. “This points to an overall lack of transparency and even organization on the part of ICE,” said Black. ICE says temporary facilities in field or subfield offices are used for 84 percent of all book-ins. There are twenty-four listed field offices. The 186 unlisted subfield offices tend to be where local police and sheriffs have formally or informally reached out to ICE. For instance, in 2007 North Carolina had 629,947 immigrants and at least six subfield offices, compared with Massachusetts, with 913,957 immigrants and one listed field office. Not surprisingly, before joining ICE Pendergraph, a sheriff, was the Joe Arpaio of North Carolina, his official bio stating that he “spearheaded the use of the 287(g) program,” legislation that empowers local police to perform immigration law enforcement functions.
A senior attorney at a civil rights organization, speaking on background, saw the list and exclaimed, “You cannot have secret detention! The public has the right to know where detention is happening.”
Alison Parker, deputy director of Human Rights Watch, wrote a December comprehensive report on ICE transit policies, “Locked Up Far Away.” Even she had never heard of the subfield offices and was concerned that the failure to disclose their locations violates the UN’s Covenant on Civil and Political Rights, to which the United States is a signatory. She explained that the government must provide “an impartial authority to review the lawfulness of custody. Part and parcel is the ability of somebody to find the person and to make their presence known to a court.”
The challenge of being unable to find people in detention centers, documented in the Human Rights Watch report, is worsened when one does not even know where to look. The absence of a real-time database tracking people in ICE custody means ICE has created a network of secret jails. Subfield offices enter the time and date of custody after the fact, a situation ripe for errors, hinted at in the Schriro report, as well as cover-ups.
ICE refused a request for an interview, selectively responded to questions sent by e-mail and refused to identify the person authorizing the reply–another symptom of ICE thwarting transparency and hence accountability. The anonymous official provided no explanation for ICE not posting a list of subfield office locations and phone numbers or for its lack of a real-time locator database.
http://cryptogon.com/?p=12707