Rasul v. Rumsfeld

[RoyGBiv]

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

[NJmaverick]

1. That is a pretty well thought out post and I agree with your position

You know President Obama swore to uphold the constitution. That oath didn't have a disclaimer that one could look the other way when it involved people you don't like (or even those people's actions).

I think the second point is that most of the times they are going after Obama and the DOJ, the people don't mention that it involves civil matters, not criminal matters. As such there is a much different set of standards and society's greater good and all that comes into play. There are many cases where entities are protected from civil action to protect the greater good. It's just that few people are aware of this.

[RoyGBiv]

2. Civil v. Criminal is a big part of this ...

I think many of those who are so upset with the legal tactic the DoJ has taken here is that they imagine Rummy and friends making a perp walk should the suit proceed and be successful. Well, it wouldn't happen, not even if all claims were held valid and damages awarded. Not a lot of people are away even of the context of this case, and articles such as the ones written by Fisher and Floyd are doing positively nothing to educate anyone about them.

The pick a point that's bound to attract attention and run with it.

I'd really like to break down the Scott decision and compare it to the Rummy decision, but I don't think I have the energy at the moment.

I can only say, after having studied the Scott case in *exhaustive* detail that has resulted in a recurring headache whenever I see the words, this doesn't sound the same at all. The use of the word "person" is detracting from the legal reasoning behind its use, which is why, I assume, Judge Brown disagreed with its inclusion in the majority ruling.

[Cha]

8. And, those writing about it..don't bring it up bc

where's the red meat in that?

[LiberalAndProud]

3. Thanks for some insight into the complexities.

I am sympathetic to the position that "the legal certitude of the offenses were not clear and could not have been clear to the defendants". It comes back to Gonzalez and his creative interpretation of our laws. It seems like the Bush administration created a legal no-man's land. Is there no way to close that barn door?

[RoyGBiv]

5. I wish I knew ...

The depths to which Bush's DoJ went, particularly in his second term, to provide a veneer of legality to that which was either not known to be legal or was formerly expressly illegal is not fully appreciated. I don't understand but even the smallest tip of the iceberg, and I've made it something of a hobby to follow it. The Big Cases are out there, and people generally have some idea of what they are, but what is at stake underneath the surface presented to us by lawyers trying the cases in the media and self-proclaimed legal experts is not well understood.

Most of the criticisms of Obama's DoJ are related either directly or indirectly to all this mountain of crap that was left in the hallways of the Justice Department when Bush's team left. Undoing what was created over a decade may take more than decades, especially since power shifts are sure to occur over time. There's an irony in this. Obama could undo it all, immediately, if he were willing to use the tactics of his predecessor, but since he is not, undoing what was done will be far more problematic. Legal precedents are difficult to undo barring some sort of revolutionary change in the way government functions or take-over by a foreign power, especially ones with which such care was taken to establish in the first place. And that's part of the problem. We're dealing with things for which little clear legal precedent existed prior to Bush DoJ getting their hands on it and creatively molding it toward their own ends.

Witness the use of signing statements. Presidents have been using signing statements in one form or another for as long as Presidents have existed. It's not their use that is the problem. It is the way Bush used them and the fact no legal precedent existed for opposing the way he used them. You can go back to Andrew Jackson for a clear indication that an Executive openly intended not to enforce the will of another branch of government, and even there, you have no clear outcome as to how to oppose his abuse of power. Imagine if FDR had ignored SCOTUS the way Jackson did. We'd have had universal health care in the 30's. Indeed, you can go all the way back to Washington, Adams, and Jefferson as a unit and them playing with unclear legalities to shape policy and the power of their office the way they wanted it to be.

But I digress. As far as I can tell, Obama has been doing it right so far, even if we don't always like what he's doing. He's using doctrine established prior to his immediate predecessor and not, in my view, abusing it. The larger issue, though, has little to do with Obama and more to do with Congress and its lack of determination in opposing abuses by he Executive, and that problem goes back a long, long time.

[treestar]

4. They are usually saying that the government should roll over and

play dead on every case - just give up the government's side of the case because Bushco was clearly wrong. But that's not necessarily the case very single time - there could be legal issues. The media never goes into that. If you read the case, you might see the legal issue.

Even the Bush Admin. got shot down when they made a twisted argument in favor of constitutionality of something indefensible - the Courts really did save us on that. The Obama admin's arguments for these things can likewise be shot down.

IMO they've just gone on with the DOJ and keep arguing the government side of every case, just like they would for any search warrant, self-incrimination, right-to-counsel case.

Defending Yoo, they were defending the idea of not suing an attorney for his opinion - that actually makes sense. Every divorce case would end and then secondary cases against the lawyers for instance. People getting divorced don't just hate their spouse, they loathe their spouse's lawyer, who got to ask them very uncomfortable questions. It would flood the courts to let people do that. Every single case could have additional sue-the-opposition's lawyer case. Everyone hates the opposition's lawyer. Better to not start it, even if it is Yoo.

The gay couple in the Ninth Circuit - that case hasn't even gone anywhere yet - some administrator denied the provision of benefits because he thinks he has to in order to follow the law.

And outrage on any legal case should be taken with a huge grain of salt. It's just being exploited for its apparent outrageousness because the government does what it always does.

[RoyGBiv]

6. Yoo is both an idiot and a genius ...

I happen to agree with everything you said here, and I hate that I feel I must agree with it. Yoo did that. He does have a great legal mind that has, unfortunately, been put to a horrible use that he was all too willing to allow it to be put.

The horrible thing about all this is that, as you imply, with almost all these cases there is some very basic underlying legal principle that, if overturned or even challenged seriously, could do untold harm in other matters. I think of it the way I do when considering the ACLU defending the KKK's right of assembly. I hate everything about that case, but unfortunately, to deny that group their 1st Amendment rights would be the same as denying it to everyone else. The precedent established had the case gone the other way would have made "protest zones" look like the hallmark of free expression by comparison.

[Cha]

7. Precisely, Mr Biv..

It is not the criticism but the disingenuousness and if they're called on it.. they would go down in quick sand rather than admit they're wrong.

[Number23]

9. "That article, the most inflammatory of the lot, was posted here and, naturally, inflamed everyone."

It's hard to further inflame those who are already consumed by them.

I read the title alone of that OP and practically vomited. I'm sure that it still received the obligatory 125 recs that all anti-Obama threads receive in GD, no matter how asinine.

[SeattleGirl]

10. Thank you for this, Roy. I know I'm going to have to read it

a few more times to really understand it, but what I do understand is that things aren't always as straightforward as some folks think they are, especially in the legal arena. People either don't understand that, or they are the sensationalizing drama queens that always get the attention. Either way, they don't take the time to "get it", or at least get it that because someone is defending something or someone in the legal area, it doesn't mean that defender completely agrees with the issue or the person. It's like a law firm that specializes in legal defense. Say Joe Blow comes to them because he's been accused of murder. Their job is to defend Joe Blow to the best of their ability, regardless of whether he is guilty or not. If they KNOW he is guilty (for whatever reason), they still defend him, and perhaps try to work out a deal with the prosecutors. To not do so would be a dereliction of THEIR duty, of their obligation to that person. To not do so would be like throwing the person to the wolves.

In the case of the DOJ, I agree with you 100% that the Bush Admin twisted it so badly that it's going to take awhile to straighten things out, doing it in a legal way. And yes, Obama could probably do some slight of hand stuff, but really, that would make him no better than Bush. I much prefer he and the DOJ do things in a LEGAL manner, even if doing so pisses people off. It amazes me that after 8 years of legitimate bitching about what the Bush/Cheney machine did, ignoring the Constitution, the Senate, the House, and the American people, some folks now think it would be just dandy if Obama did the same thing, as long as it for something THEY want.

[grantcart]

11. thank you for this post

[scentopine]

12. Better to go straight to the source - link here

All the docs except the official supreme court ruling are here. This is the group actively working to achieve justice in the certified maddness that is called gitmo. Justice Department lawyers under Obama's admin have been directed to proceed with their arguments against the plaintiffs who were found to be not involved with any terrorist activities.

It is easy to see why many people would be disappointed in this outcome.

http://ccrjustice.org/ourcases/current-cases/rasul-v.-rumsfeld


From the above link:

On October 27, 2004, the Center for Constitutional Rights, working with the law firm of Baach Robinson & Lewis, filed Rasul v. Rumsfeld in the U.S. District Court for the District of Columbia on behalf of four British detainees released from Guantánamo after more than two years in captivity.

--- snip ---

The suit charges that Secretary Rumsfeld and the military chain of command approved interrogation practices that they knew to be in violation of U.S. and international law, including prolonged arbitrary detention; torture; cruel, inhuman or degrading treatment; cruel and unusual punishment; as well as the denial of plaintiffs’ liberties without due process, and preventing the exercise and expression their religious beliefs. The case was filed in the United States District Court for the District of Columbia.

The plaintiffs were imprisoned without charge for more than two years by the U.S. at Guantánamo. They were subjected to repeated beatings, sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The action seeks $10 million in compensatory damages for each of the plaintiffs.

The plaintiffs are Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, three friends from a working-class town in England who have come to be known as "the Tipton Three," and Jamal Al-Harith, a web designer from Manchester.

The four are not now and have never been members of any terrorist group, and they have never taken up arms against the United States.

They were released in March 2004 and returned to Britain without ever being charged with a crime. Rasul was the lead plaintiff in CCR’s landmark Supreme Court case Rasul v. Bush in which the Court ruled that those held at Guantánamo have a right to judicial review of their detentions.

[LiberalAndProud]

13. not ripe

The court ruled that because the plaintiffs had not exhausted their administrative remedies by bringing their international law claims to an appropriate federal agency, the plaintiffs’ international law claims were not ripe.

What would the appropriate federal agency be? What would the administrative remedies look like?


And why didn't Rumsfeld have to hire his own lawyers?