Guantanamo detainees “not persons” under the law?

Judges Dismiss Suit Seeking Damages for Guantánamo Torture
Judges Say Men at Base are Not “Persons” Under U.S. Law, Torture a “Foreseeable Consequence” of Military Detention

[…] On the sixth anniversary of the imprisonment of detainees at the Guantánamo Bay Naval Base, the U.S. Court of Appeals for the District of Columbia Circuit dismissed Friday an action brought by four former British detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse.

The British detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith – spent more than two years in Guantánamo and were repatriated to the U.K. in 2004. 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 [highlighting mine]. 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. […]

In a separate concurrence, Judge Janice Rogers Brown […] concluded that the majority’s decision “leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantánamo are not ‘person[s].’ This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human.” […]

The parties do intend to appeal to the US Supreme Court, but until (or is that unless?) this is overturned, we have legal precedent that “unpersons” exist in this nation. As dogemperor points out in her post on this topic, this is how Nazi Germany handled the “undesirables” under their law. And we all know what that ultimately led to.

Thanks to dogemperor for bringing this to my attention, and providing very interesting background details on legal “personhood”, here.

ETA: In Nazi Germany, the term for the concept of an “unperson” was “Untermensch“, plural: Untermenschen. Just FYI, as you may see me refer to that term in the future as this case continues.


About Janet Logan

Well educated woman, transgender / transsexual, lesbian, Reiki practitioner, LGBT activist, polyamorous, and eclectic Pagan.
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