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Posted: 12/21/2009 1:19:54 PM EDT
Supreme Court Guts Due Process Protection

Reader Walter passed along this distressing sighting from Chris Floyd’s blog. American civil liberties were gutted last week, and the media failed to take note of it.

The development? If the president or one of his subordinates declares someone to be an “enemy combatant” (the 21st century version of “enemy of the state”) he is denied any protection of the law. So any trouble-maker (which means anyone) can be whisked away, incarcerated, tortured, “disappeared,” you name it. Floyd’s commentary:

   After hearing passionate arguments from the Obama Administration, the Supreme Court acquiesced to the president’s fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a “suspected enemy combatant” by the president or his designated minions is no longer a “person.” They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever — save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.

It is hard to overstate the significance of this horrid decision. The fact that the Supreme Court authorized this land grab says we no longer have an independent judiciary, that the Supreme Court itself is gutting the protections supposedly provided by the legal system. Per Floyd:

   In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.

Now Floyd saw this mainly as an issue of the treatment of enemy combatants and Obama hypocrisy about torture, which is bad enough:

   The Constitution is clear: no person can be held without due process; no person can be subjected to cruel and unusual punishment. And the U.S. law on torture of any kind is crystal clear: it is forbidden, categorically, even in time of “national emergency.” And the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law.

   And yet this is what Barack Obama — who, we are told incessantly, is a super-brilliant Constitutional lawyer — has been arguing in case after case since becoming president: Torturers are immune from prosecution; those who ordered torture are immune from prosecution….let’s be absolutely clear: Barack Obama has taken the freely chosen, public, formal stand — in court — that there is nothing wrong with any of these activities.

Yves here. The implications are FAR worse. Anyone can be stripped, with NO RECOURSE, of all their legal rights on a Presidential say so. Readers in the US no longer have any security under the law.

Roman citizens enjoyed a right to a trial, a right of appeal, and could not be tortured, whipped, or executed except if found guilty of treason, and anyone charged with treason could demand a trial in Rome. We have regressed more than 2000 years with this appalling ruling.

http://www.nakedcapitalism.com/2009/12/supreme-court-guts-due-process-protection.html

Change
Link Posted: 12/21/2009 1:24:40 PM EDT
wow.
Link Posted: 12/21/2009 1:24:51 PM EDT
...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.


Link Posted: 12/21/2009 1:25:11 PM EDT
This can't be true. The ACLU hasn't mentioned this, nor has the media.






Link Posted: 12/21/2009 1:26:26 PM EDT


What case?

None of the recent slip opinions relate as far as I can tell.


Link Posted: 12/21/2009 1:27:24 PM EDT
Originally Posted By PossumKing:


What case?

None of the recent slip opinions relate as far as I can tell.




They simply refused to hear a lower court appeal.
Link Posted: 12/21/2009 1:28:18 PM EDT
Originally Posted By 1Andy2:
Originally Posted By PossumKing:


What case?

None of the recent slip opinions relate as far as I can tell.




They simply refused to hear a lower court appeal.


RIF.  D'oh.
Link Posted: 12/21/2009 1:29:48 PM EDT
Originally Posted By 1Andy2:
...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.




unless you are a muslim terrorist.
Link Posted: 12/21/2009 1:31:09 PM EDT

anyone have the backstory on the lower court ruling?


Link Posted: 12/21/2009 1:32:21 PM EDT




Originally Posted By 40xb-shooter:



Originally Posted By 1Andy2:



...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.









unless you are a muslim terrorist.



true

Link Posted: 12/21/2009 1:33:26 PM EDT
Wait. I'm confused.

This article states that Obama says that "Torturers are immune from prosecution;" but hasn't he sought to prosecute CIA interrogators?
Link Posted: 12/21/2009 1:36:01 PM EDT
Is all of this shit REALLY happening?



My grandmother was right on her deathbed when she told me she was ready to go, that the world was going to hell son and she did not want to live through it again. (WWII)
Link Posted: 12/21/2009 1:37:55 PM EDT
OK, I already have an infidel shirt...

Who's going to make the M*A*S*H-style lettered ENEMY COMBATANT shirts?

Link Posted: 12/21/2009 1:39:09 PM EDT
Link Posted: 12/21/2009 1:39:31 PM EDT
I'd have to read the decision of the lower court, but I'm not sure that the article in the OP tells the full story.

I don't think the decision applies to American citizens, but foreign nationals, in foreign prisons operated by the US military.  

Either way, let's be honest, this is what Bush wanted all along and we were all happy with the idea.
Link Posted: 12/21/2009 1:39:50 PM EDT
Is this a reliable source?
Link Posted: 12/21/2009 1:41:35 PM EDT
I do find it odd they left out any reference to the actual case.
Link Posted: 12/21/2009 1:43:23 PM EDT
Tagged for details...
Link Posted: 12/21/2009 1:46:37 PM EDT
Follow the links back a ways, this is a lawsuit by Gitmo detainees against Rumsfeld.  

On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not "persons" protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.


Rasul v. Rumsfeld
Link Posted: 12/21/2009 1:49:06 PM EDT
Originally Posted By ragedracer1977:
I'd have to read the decision of the lower court, but I'm not sure that the article in the OP tells the full story.

I don't think the decision applies to American citizens, but foreign nationals, in foreign prisons operated by the US military.  

Either way, let's be honest, this is what Bush wanted all along and we were all happy with the idea.


The lower court case was concerning foreign nationals held in Guantanamo but I believe the decision effectively applies to anyone declared an enemy combatant, foreign or not.  I read a detailed analysis of it a while ago but I guess I didn't bookmark it, I'll keep looking.
Link Posted: 12/21/2009 1:49:20 PM EDT
So, enemies engaged in killing US soldiers abroad need to be brought here for due process and to bestow constitutional rights upon them, while citizens of the United States should be taken out of the country to be tortured and interrogated?  Yeah.  Sounds about right.
Link Posted: 12/21/2009 1:51:28 PM EDT
Wait a minute. I don't think something is right...

In March of this year Holder said the term "enemy combatant" was no longer, and it had no legal standing anyway because there is no legal definition of "enemy combatant."

I thought the only "legal" definition that was even close was from  the Geneva Convention, and that is "lawful" or "unlawful" combatant.

And this part is incorrect; "The Constitution is clear: no person can be held without due process; no person can be subjected to cruel and unusual punishment. And the U.S. law on torture of any kind is crystal clear: it is forbidden, categorically, even in time of “national emergency.” And the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law."

The U.S.Constitution applies ONLY to the FEDERAL GOVERNMENT. It is a document that restricts what powers are given to that government and how they are used. The grantees of that power to the Federal Government are the citizens of the United States.

So, Obama is empowered to declare a US citizen as a "enemy combatant" a term that has no legal definition and is no longer used and that citizen no longer has rights under the Constitution?

I'm confused  
Link Posted: 12/21/2009 1:52:33 PM EDT
Originally Posted By BIKECOP29:
Is this a reliable source?


No.  If you follow the citations train it all comes from the anti-war bloggers.  I'll await further evidence before I panic.
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