Motley Moose – Archive

Since 2008 – Progress Through Politics

Gitmo detainees not persons, now??? Oh me oh my…

Imagine my consternation and moral outrage when I ran across an article this morning, reporting a DC Court of Appeals ruling that Guantanamo detainees are not “persons”! Since when does any court presume to arrogate to itself the right to decide which human beings are persons and which are not? Or to summarily strip that status from an entire group of human beings, simply because they happen to be in US detention? But wait, it gets worse, or so it seems — the court handed down this ruling in response to a request from Obama’s DOJ!

Suddenly I felt like I’d been transported to an alternate universe or something, one in which black was white, hot was cold, and left was right. Everything seemed backward, twisted, and incomprehensible. Had someone in the DOJ lost their mind? Had Holder forgotten who he was working for? Were heads gonna roll as soon as Obama heard about this? Because I was certain he could not have, or it never would have gone before the court. Declaring a whole group of people non-persons? How unlike everything Obama stands for!

I ranted, I sent out my virtual SOS hoping somebody somewhere would be able to come up with a sensible explanation, like they did for the “we won’t prosecute” scandal. But when I got home today, all I had was commiseration from those who were equally as incensed and bewildered that we would even think to take such an action. It was time for more digging. There just HAD to be a rational explanation, I knew.

Well, sure enough, it appears there is, and once again I’ve gotten egg on my face, but I’ll take egg on my face over criminal leaders any day! Bottom line is, it appears this ruling was in response to a suit brought by four British ex-inmates, who alleged, among other things, that their rights under the Religious Freedom Restoration Act had been violated by being forced to shave their beards, no access to the Koran or prayer mats, things like that. Apparently — and this is straight from the court’s ruling — the detainees “cannot bring a RFRA claim because they are not ‘person[s]’ within the meaning of that statute.” This, I think I can live with. As someone who has worked with many detainees during my tour in Iraq, I can only imagine the chaos and confusion that would ensue if, for example, guards were not allowed to bother anybody who was praying. Or if detainees could grow their beards as long as they wanted (think of the lice infestations and general hygiene issues, if nothing else!). So this is what all the fuss was over…. Leave it to the media to feed us a sensational headline and not bother to dig any further!

In short, because of a poorly-worded law (some provision should have been made to exclude “persons” who happened to be in detention awaiting trial), a court decision was required to place Gitmo inmates outside the category of “persons” protected by it. But all we hear is, “Court declares Gitmo detainees non-humans!”

But wait, there’s more. Along with this, our DOJ has asked for immunity for any previous violations! You heard that one, right? Well, this is a simple answer, too. The DOJ simply requested that, should the court find that inmates were indeed entitled to all the rights given “persons” under the RFRA, that previous instances where those rights had not been granted would be immune to prosecution. And that’s only right. None of us in the field are damned lawyers — we rely on top-down guidance to let us know what’s fair game and what isn’t. I personally gave a prisoner his own personal Koran one time, after leafing through it to make sure it wasn’t hiding anything. Many of my colleagues wouldn’t, and I couldn’t blame them. Indeed, I felt like maybe I was the one who was too soft, who might put us all in danger one of these times. Out there, all you have is your gut to go by. I, for one, was never in any position to research the intricacies of the RFRA, had I even known it existed. To prosecute any soldier acting in good faith, for the best interests of his unit and his country, would be unconscionable.

So I hope that helps to deflate any simmering outrage over the DOJ’s recent actions. It does for me, and let me tell you, I am easily outraged!



  1. I was troubled about this as I said in the overnight thread where you first gave us the heads up on this. Luckily for the sake of my ego, I also said I didn’t want to jump the gun on it until I had more information. I’m glad it turned out to be a non-issue. There have been a lot of troubling things going on with executive powers, state secrets, and the mixed signals coming from the admistration on the torture issue. I’ve been behind Obama on just about everything else he’s done so far, but it looks like we need to push on those issues if we want to see anything done about them.

    I hope I was right when I said in another thread some time ago that maybe Obama is playing a waiting game on investigations. He might be waiting for the public to demand action so that it doesn’t seem like he’s starting a partisan witch hunt.

  2. rfahey22

    What the DC Circuit said is that in passing the Religious Freedom Restoration Act (RFRA claims comprised 3 of the 7 claims in the Rasul case), Congress intended to restore what it believed was the true scope of the constitutional right to free exercise of religion – the RFRA was passed in response to a Supreme Court decision with which Congress apparently disagreed.  The term “persons” in the RFRA must be read as applying to those individuals who had the right to free exercise of religion when the RFRA was passed.  By that time, the Supreme Court had issued a number of rulings that certain constitutional rights did not apply to nonresident aliens.  Therefore, the court ruled, the term “persons” does not include nonresident aliens, because there is no indication that Congress wished to overturn those prior rulings.

    The underlying issue is that, as interpreted by the Supreme Court since WWII, nonresident aliens have few constitutional rights (the Eisentrager defendants cited in the DC Circuit’s opinion were Nazis who were tried by U.S. military commission in China and imprisoned in occupied Germany; the Supreme Court found that their treatment did not violate the Fifth Amendment).  The DC Circuit believes that Congress enacted RFRA with that understanding in mind.  

  3. i have avoided this issue for the most part…  why?  not that its not important or tied to the fuckup of previous administrations past….  

    but rather it seems like another attempt by “people that want to see obama fail” to distract from the important nitty-gritty issues to get the american people out of the current quagmire they are in. and by that i mean mortgages, heathcare, infrastructure etc etc.

    i mean maybe this sounds insensitive, but prosecuting CIA etc etc just seems like a perpetual moral debate that in my opinion should be a priority in maybe a year or two.  is that wrong?

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