Poor Mojo's Newswire

It's a little hard to tell through the layers of spin (you have to click through three or four linked blog posts to get back to the original text this is all commenting on, which is itself more of an op piece than straight reporting), but I think the synopsis and headline here (lifted from the linked article) is sorta overstated.

The linked article ( http://www.nakedcapitalism.com/2009/12/supreme-court-guts-due-process-protection.html ) is based on this article ( http://chris-floyd.com/component/content/article/1-latest-news/1887-dred-scott-redux-obama-and-the-supremes-stand-up-for-slavery.html ) which is based on this article ( http://original.antiwar.com/fisher/2009/12/15/us-guantanamo-prisoners-not-persons/ ). That oldest article (henceforward "antiwar.com aricle") makes it seems pretty clear that all that happened on Dec 14 was that the SCotUS declined to overturn a lower court's ruling on practices at Guantanamo (including skipping steps in due process and engaging in cruel/unusual treatment including mocking of religious values/practices). The SCotUS declined to hear the case owing to technicalities with which we are all, sadly, already intimately familiar: Basically, the SCotUS confirmed the lower court's ruling that government officials responsible for what was happening at Guantanamo could not be prosecuted because they could not reasonably know that folks in a military prison on Cuban soil are protected under the U.S. Constitution--this is whack as hell (and the ruling includes choice, disturbing bits like the conclusion that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants")--but it isn't the general and wholesale destruction of due process in the United States; it's a very limited legal finding, and would be impossible to apply as precedent within the United States in cases dealing with U.S. citizens . It is an unpleasant ruling (and possibly misguided--who knows, because none of these bloggers seem to think its important to provide easy access to primary sources, and IANAL, anyway), but it is far from the apocalypse that the linked article leads us to believe.

To reiterate: I don't think this is awesome, by any stretch, but author's assertions, that, for example:

"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."

or

"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."

are not the case (at least owing to the Dec 14 SCotUS decision), and are either the result of badly misunderstanding what was plainly stated in the antiwar.com article, or a purposeful attempt to mislead casual readers--in any event, it seems clear that, at the least, the author basically overstates what the SCotUS declined to overturn. The antiwar.com article plainly does not state that "a 'suspected enemy combatant' is . . . no longer a 'person'", but rather that:

"claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as 'persons' for purposes of the Religious Freedom Restoration Act." [emphasis and link mine]

None of this is exactly stunning: Both military prisoners and personnel are regularly considered unable to seek the full protection of the Constitution. This may or may not be good, but it's hardly new. Most importantly, this is clearly a very limited finding by a lower court which the SCotUS did not affirm, but rather refused to overturn.

(Trivia Aside: The Religious Freedom Restoration Act was originally the "American Indian Religious Freedom Act," and arose, in part, to guarantee Native Americans from the US southwest the right to use peyote in religious ceremonious without risk of prosecution or punishment when, for example, they turn up positive for psychoactives in a job drug screening.)

At any rate, this seems like sort of a "nothing to see here, folks" situation. What's really interesting is how the sturm und drang gets magnified through the subsequent iterations of groaning, teeth-gnashing, and demonscreaming, and important/interesting details get lost.

Just to note - it is made very clear to military members while in basic training that they are giving up their rights as described in the Constitution. Not all the folks understand what that means (or are paying attention when it's discussed) but it's at least not a secret or a surprise within the military community.