No Comment — January 14, 2008, 12:05 am

Less Than Human

Friday marked the sixth anniversary of the arrival of the first detainees at the American GULAG constructed to house prisoners taken in the Bush Administration’s War on Terror in Guantánamo. Around the world, thousands gathered in public commemorations in London, Stockholm, Dublin, Brussels and Bahrain. More than twelve hundred parliamentarians signed a formal plea calling for the immediate closing of the base. The same plea had previously been issued by Pope Benedict, Chancellor Angela Merkel and more than two dozen other world leaders. Indeed, quite remarkably, on Sunday Admiral Mike Mullen, chairman of the Joint Chiefs of Staff essentially joined in with the protestors.

“More than anything else it’s been the image — how Gitmo has become around the world, in terms of representing the United States. … I believe that from the standpoint of how it reflects on us that it’s been pretty damaging.”

Mullen went on to say that he wanted the facility shut down. Sources inside the Pentagon say that has been the view of the Joint Chiefs of Staff for several years now.

Around the world, Guantánamo is viewed as a stain on the honor and reputation of the United States. It stands as visual evidence of a decision by the United States to repudiate its human rights commitments and the human rights standards that every modern American administration up to the arrival of George W. Bush had championed. Britain’s Lord Chancellor, Lord Falconer, the senior law officer in the English-speaking world, called the existence of Guantánamo a “shocking affront to the principles of democracy.” And he and others have pointed to the opinions handed down in American courts that sustain and nurture Guantánamo as evidence of the corruption and collapse of the integrity and independence of American courts. This criticism is painful for American lawyers. Doubly painful because of its certain truth.

And clear evidence of the putrefaction that has set in came on Friday. The Court of Appeals for the District of Columbia, which has emerged as a bastion of Republican movement conservative jurisprudence, picked the anniversary of the opening of the Gitmo camps as the day to celebrate them and the abuses perpetrated there.


Three British detainees held at Gitmo, who were seized for bounty payments for no good reason and who were pried free by the British Government, filed suit alleging that they had been tortured and denied their religious freedom. They sought redress from the authors of the Gitmo system, including former Secretary of Defense Rumsfeld, who crafted a series of once-secret orders directing the Guantánamo torture system. Among the practices introduced and used were waterboarding, hypothermia, long-time standing, sleep deprivation in excess of two days and the use of psychotropic drugs—each of which constitutes torture under American law and under international standards. These orders and their implementation were criminal acts under United States law. The evidence that the plaintiffs were in fact tortured is considerable, and the evidence of religious discrimination and abuse has been documented in internal Department of Defense investigations, which suggest, moreover, that at least some of it is officially condoned. However, the plaintiffs are being denied the right to present their evidence and make a case.

The judges hearing the case, all movement conservative Republicans appointed by a President named Bush– Karen LeCraft Henderson, Janice Rogers Brown and A. Raymond Randolph–concluded that the plaintiffs were not “persons” for purpose of the relevant statute protecting religious freedom. They further concluded that acts of torture and contempt and abuse targeting religious belief were within the legitimate scope of conduct of an American cabinet officer, so that official immunity blocked the suit. In so ruling, they substitute the political mantra of the Republican Party for the Constitution and laws of the United States. They implicitly adopt the Republic Party doctrine that the President is free to torture at whim, and to delegate this right to his cabinet officers, and ignore the Constitution and criminal statutes that prohibit this. This of course is a common enough judicial view of the perquisites of raw power in the world, but it is antithetical to the American idea. Indeed it violates the most fundamental of all the rules upon which the American Republic was founded, namely the view, as Fuller recorded it, “Be ye ever so high, still the Law is above Thee.”

Of course, the English-speaking world has known sovereigns in the past who have asserted precisely the prerogatives that the Bush Administration claims for itself. One was removed from office, tried and convicted. Among the specific items in the bill of particulars was the charge that he authorized and condoned acts of torture and cruelty against prisoners taken in wartime. He was convicted and an appropriate penalty was assessed: death. This occurred in 1649, and the sovereign’s view of his powers, remarkably like those advanced by Team Bush and its judicial acolytes, were known in their day as the doctrine of Divine Right.One of the judicial commissioners who sat and voted to convict the king was Thomas Horton, my ancestor. If anything, the law has developed considerably to the disadvantage of claims of Divine Right since, but then the District of Columbia Circuit has already demonstrated that it has a peculiarly Orwellian sense of history. It simply invents whatever history it needs to suit its preposterous views. Indeed it has been particularly inventive in adjusting history to eliminate that pesky concept, the writ of habeas corpus.

Italian philosopher Giorgio Agamben has studied in depth the legal policies which enabled the horrendous abuses that occurred against prisoners during World War II. At their core, he writes, was the introduction of the pernicious view that the prisoners were beyond the protection of the law.Giorgio Agamben, Homo Sacer: Il potere sovrano e la nuda vita, p. 71 (1995). He traces this idea back to the doctrine of the homo sacer, a term evolved in Roman jurisprudence by the second century of the common era. It provided that a person ajudged and condemned of certain heinous crimes was beyond the reach and help of the law. He could be victimized, abused and even killed without legal consequence for the perpetrator.Sextus Pompeius Festus, De verborum significatione: At homo sacer is est, quem populus judicavit ob maleficium; neque fas est eum immolari, sed qui occidit, parricidi non damnatur; nam lege tribunica prima cavetur “si quis eum, qui eo plebei scito sacer sit, occiderit, parricidia ne sit.” Ex quo quivis homo malus atque improbus saver appelari solet. — In English: Homo sacer is used to describe a person whom the people have judged on account of a grave crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide; in the first law of the tribunate, in fact, it is said that “if someone kills a homo sacer according to a plebiscite, this cannot be viewed as a homicide.” And from this fact arises the custom of calling an evil or impure man a homo sacer.

What the Bush Administration has attempted is worse than the Roman model, for a prisoner became homo sacer only at the end of a legal process—it was a formally assessed punishment. The Bush Administration’s approach aims at making the Leader’s power over these prisoners absolute, and their right to defend themselves or seek freedom through legal process a complete illusion. Yet again we witness a sickening spectacle: Bush-appointee judges snap to attention and follow their Leader, in a display which seems to reveal loyalty not to the law, but to the Party. Possibly they are led in their judgment by a careful assessment of the law. The pages of this opinion would permit that view. But the heart of the opinion is chilling: it is a view which relies on pettifoggery and too-clever statutory parsing to eviscerate the most fundamental human rights. Indeed, the panel’s entire exercise is dishonorable in the sense in which the English judges used that term in 1628, for it is a stain against honor–as they said in holding torture prohibited by the common law–to attempt to justify torture and to protect the torturer when his victim seeks justice. But this is precisely what this disreputable court has done.

In the face of this stands a Supreme Court with a heavily Republican majority, the looming prospect of accountability for the abusers at the polls, and the harsh but just judgment of the world community whose trust and support is essential for our own national security.

The anniversary has now come and passed. And it will come as remarkable to few observers that the bench installed by George W. Bush and his father finds nothing objectionable about torture and religiously motivated discrimination. We are observing the albatross that Bush has left us, with which the country will have to cope for a generation. They say the plaintiffs are less than persons. But posterity will likely think them less than judges for issuing so disgraceful a decision.

Single Page

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