If Bush had done this...

In the early years of the Bush era, progressives repeated a disgusted mantra: "Imagine the outcry if Clinton had done something like this..." Now everyone should scream: "Imagine if Bush had done something like this..."

The Obama administration argued fervently before the Supreme Court against four British citizens tortured at Gitmo who wanted to sue Donald Rumsfeld. The Court determined that suspected enemy combatants are not people and thus have no rights:

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.

The Obama administration had asked the court not to hear the case. By agreeing, the court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act – a statute that applies by its terms to all "persons" – did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.

The circuit court ruled that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

Aside from being disgusting and outrageous on its face, this ruling is also unconstitutional. The United States is signatory to the United Nations Convention Against Torture (read it in full here; read the summary here). The Constitution says that "all treaties" shall, along with the Constitution itself, "be considered the supreme Law of the Land; and the Judges in every State shall be bound thereby..."

That's pretty clear. And I have not gerrymandered the quote.

Thus, Rumsfeld should have known that the defendants had constitutional rights because he knew full well that the United States had signed the Convention Against Torture, and the Constitution has clearly labeled that treaty to be the law of the land.

In the Bush era, right-wingers argued that treaties cannot trump the Constitution. That argument might be germane if there were a pro-torture clause in the Constitution. But there isn't.

By creating a class of individuals who are not persons in the eyes of the law, the Supreme Court and Obama have, in essence, recreated slavery.

Two further notes:

1. Near as I can tell (after a brief survey), nobody is talking about this business at D.U., the Daily Kos or TPM. Good job, progs!

2. In the 1930s, German courts made sure that Hitler's rise to total power was always given the veneer of legal justification. And screw Godwin's law; I'll make whatever historical analogies seem good to me.