Those Who Are Not Persons

Lost in all the clamor over the Citizens United decision, the Supreme Court did something else regarding "persons" that is if anything even more outrageous.

Last December the Supreme Court let stand a DC Circuit Court ruling in Rasul v Myers, et al (pdf link) in which the lower court determined that 1) the plaintiffs may not sue Federal officials who ordered or participated in their torture because those officials were acting in their official capacity, not as "rogues," and such torture that may have occurred was "incidental" to their duties; 2) that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants” in any case and therefore, “it was foreseeable that conduct that would ordinarily be indisputably ‘seriously criminal’ would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants;” 3) and finally, that the plaintiffs are not "persons" under the meaning of the Religious Freedom Restoration Act, and therefore they do not have the right to sue under its provisions, or for that matter under any other law or provision that applies to "persons" or "people", which these plaintiffs are not. 

So ordered.

The lower court ruling that the Supreme Court let stand in Rasul v Myers is so shocking on its face, and so at variance with even a minimal sense of justice, that it's very difficult even now for people of good will and moral conscience to come to grips with it.

It justifies torture as an "incidental" factor in the confinement and interrogation of suspected terrorists by military authorities and it further declares to these plaintiffs -- and to all and sundry -- that torture is a "foreseeable consequence" of being captured, held and interrogated by the US military (and its contractors?), and that further, "non-resident aliens" such as the plaintiffs in this case, even if held on US property, are not "persons" under the meaning of the Religious Freedom Restoration Act -- or any other, for that matter -- and therefore have no standing to sue in any case.

Dred Scott meet Shafiq Rasul, et al.

In fact, this ruling is so shocking and outrageous -- and so deeply antithetical to everything Americans say they believe in with regard to Justice -- that it will probably stand right there with the Dred Scott ruling as one of the worst in our nation's history.

Yet surprisingly, there's been very little outcry about this ruling. Perhaps it's the shock. Perhaps it's the fact that the Supreme Court simply let stand a lower court ruling rather than ruling its own self. Perhaps it's because the plaintiffs have been repatriated to Britain and are not now under American authority and so are not now subject to the tortures they experienced while in custody in Afghanistan and Guantanamo. Perhaps it's because the implications of this ruling are just too terrible to contemplate.

Of course, it could be something else.

The plaintiffs, after all, are no strangers to Americans who have been following the torturous trails of our Gulags and the sufferings of their captives.

In fact, Shafiq Rasul is one of the primary litigants who has been actively pursuing justice in American courts for their unjustified captivity and horrible treatment while in American custody, with some success. See Rasul v Bush. In this case, the plaintiffs failed, somewhat spectacularly, but one can be pretty sure they'll try again.

The Road to Guantanamo is one of several lengthy news segments and documentary films made over the years concerning Shafiq Rasul and his fellow plaintiffs. The embed below is the entire, more than hour-long documentary that was first shown on Channel 4 in Britain, should anyone care to review.



In another, more recent news segment, Rasul and Ruhal Ahmed, once held at Guantanamo, reunite with one of their guards at the camp. The guard, Brandon Neely, offers what appears to be a very sincere apology to the former captives for their treatment in custody.

Part 1


Part 2


The United States has got a long way to go before the nation's institutional commitment to resolution is anywhere near that of the individuals, such as Shafiq Rasul, involved.

And rulings like that of Rasul v Myers, et al are definite impediments on that path.

For further review, Torturing Democracy is more than worth the time.

There is so much that we need to get right.