One thing that annoys me about modern sensationalist so-called journalism is, when responding to legal cases that revolve around constitutional issues, the authors almost universally fail to cite the actual case. This may not seem to be a big deal. It's usually easy enough to figure it out, but the point, in my view, is that this is the sort of thing for which markup was made. One could, if serious about his or her profession, actually link to the decisions, other supporting documents, or at the very least a case citation.
But they don't, and I think they don't in most cases for one of two reasons. Either they're lazy, which I'm guessing is what happens the majority of the time, or they know that to do so would, if readers were to get in the habit of following citation links, knock holes in the armor of their carefully constructed wordplay. Many of these authors seem just to like watching themselves be clever.
To the point:
Rasul v. Rumsfeld is the case that inspired that lovely little thread with the subject line "Dred Scott Redux" that resulted in at least one long-time forum participant being tombstoned for his posting of clearly racist imagery. The case was first filed on October 27, 2004, in part, by the Center for Constitutional Rights and an associated law firm. The suit sought to establish that four British citizens were wrongfully imprisoned at Guantanamo and that during their time there they were denied basic U.S. constitutional protections, including rights protected under the Religious Freedom Restoration Act, the Alien Tort Statute and the Geneva Conventions. They sought damages against the United States government, specifically citing Donald Rumsfeld, Air Force General Richard Meyers and other military officers. The case has been beaten around the court circuit ever since and was most recently denied cert by the Supreme court after having earlier been dismissed in April 2009 by the Appellate Court for the District of Columbian. The denial of cert event is, apparently, what prompted the "Dred Scott" comparison, but the comparison itself refers back to the initial dismissal in 2008 and its companion in April of 2009.
But one may reasonably ask, why, now we are getting this comparison and why, specifically, it is being directed at President Barack Obama.
I cannot provide the answer to that. I believe I know what the answer is, but since I cannot see into people's minds and know all their motivations and since neither have I found anything definitive explaining the specific motivations behind the headline, I'll refrain from going on at length about it. However, I thought it would be instructive for others interested in this case and the latest reaction to it to be provided with a little history of both the case and the recent articles, since most of those articles simply do not do so.
The articles responding to the decision began on December 15 at Alternet in an
article posted by the Center for Constitutional Rights. In that article, several issues are summarized, and counsel in the case mentioned specifically that the 2008 Appeals Court for the District of Columbia had based part of its reasoning on the notion that detainees were not "persons."
The ruling in which the lower court offers its phrasing that leads to the Dred Scott comparison is not quite that straight-forward, but it is onerous. As summarized in the government's
November certification denial petition (
pdf) the court ruled that "Because this Court had held in Johnson v. Eisentrager," et al, "that certain constitutional provisions did not apply to non-resident aliens outside the United States, and because petitioners were aliens outside sovereign United States territory at the time of the alleged actions for which they sought damages under RFRA, the court of appeals concluded that petitioners did not fall within the “person<s>” to whom RFRA applies." Judge Brown of the court concurred with the ruling but objected to the use of the word "person" in this context.
Overall the Alternet article is fairly clear in establishing the plaintiff's disappointment with the Obama administration's petition to deny cert, and the lawyers involved do seem to concentrate on the use of the word "persons" in the decision.
The comparison to Dred Scott then came with an article posted on December 16th by
William Fisher on AntiWar.com (N.B. This site's database was broken earlier today, and the article would not pull up. It appears to be working as of this posting, however.) In this article Mr. Fisher states, "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."
This article was then picked up far and wide, and on December 18th an even more inflammatory headline was added by Chris Floyd disingenuously claiming that the Supreme Court and Obama stand up for slavery. That article, the most inflammatory of the lot, was posted here and, naturally, inflamed everyone.
Unfortunately for both Mr. Fisher and Mr. Floyd, the Obama administration did no such thing. The legal reasoning here, while I and others may not agree with it, varies substantially in kind from the Dred Scott case. But more than that, the Obama administration explicitly refrained from using the lower court's legal reasoning in petitioning for a denial of cert. Messrs Fisher and Floyd seem clearly to have acquired the full knowledge of the case from the Center for Constitutional Rights' own press release, since they quote from it and only it, but do not seem to have felt compelled to look any further at all, not even to the Center's very own website, in which they maintain the following:
". . .On April 24, 2009, the D.C. Circuit again dismissed all claims.
"After a brief extension of time for filing, on August 24, 2009, Plaintiffs filed their cert petition.
The government filed its response on November 13, 2009, which notably does not explicitly argue that Guantanamo detainees should be held to enjoy no constitutional rights . . ." The government's petition, like all such petitions, does cite former rulings in its recitation of the history of the case, but it does not rely on that reasoning for denial.
The government does base its motion to deny on the same reasoning Judge Brown uses, earlier mentioned to have not agreed with the manner in which the word "person" was used in the decision. I, personally, do not like that reasoning even if I can see a basis for it. That reasoning, boiled down, is that at the time the abuses took place, the legal certitude of the offenses were not clear and could not have been clear to the defendants. This is similar to many similar kinds of defenses that do not deal with things has horrific as torture and denial of religious freedoms.
Getting into that legal mess of a subject is, then, not quite as appealing to a writer who just wants a juicy headline that seeks to assault Mr. Obama specifically. The authors and makes little mention of the legal wrangling that took place over the course of the previous five years, all of it, save this *one* decision, which is more of a lack of a decision, having occurred during the previous administration. Where were Mr. Fisher and Mr. Floyd in April when the Appellate court made its ruling based on legal arguments put forth in 2008 by Bush administration officials?
It's not the criticism that bothers me. It's the sensationalism and the hypocrisy.
OnEdit: Sloppy wording