Unpersons
On January 11, in Rasul v. Myers (06-5209), a federal appeals court ruled against four British citizens bringing suit against former Secretary of Defense Donald Rumsfeld and various military officers. The suit alleges systematic torture and violation of the plaintiffs’ religious rights during two years’ detention at Guantanamo Bay after their apprehension in Afghanistan.
All charges but one were rejected by a lower court, on the grounds that the detainees’ mistreatment was “foreseeable,” that such torture lay within the scope of then Attorney General John Ashcroft’s certification of interrogation techniques, and is therefore held to be excusable. Not content to uphold these rulings, the appellate court also overturned the one charge admitted by the lower court: that the detainees’ religious rights had been abused in violation of the Religious Freedom Restoration Act, which prohibits the government from “substantially burdening a person’s religion.”
If true, the plaintiffs’ accusations of forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Quran, and throwing a copy of the Quran in a toilet bucket qualify as substantially burdening their religion. In order to rule that the RFRA does not apply, the appellate court turned to extreme measures to dismiss this last charge, ruling that “Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall within the definition of ‘person.’”
The RFRA (42 U.S.C. 2000bb) makes no exclusion for aliens, nor for persons located outside US territory. (The Supreme Court ruling in Rasul v. Bush holds that Guantanamo detainees are entitled to due process, regardless.) Nor does the RFRA even define “person,” despite taking the time for finicky definitions of several other terms. The court’s ruling that the plaintiffs are not people comes not from the law itself, nor even from a twisted reading of the law, but directly from the justices themselves.
In the bad old days of slavery, when United States law recognized the treatment of human beings as property, the Constitution nevertheless labeled such human beings as “persons”: Article 1, section 2 infamously counts “three fifths of all other persons” for purposes of allocating congressional seats, and Article 1, section 9 addresses the levying of taxes on the “importation of such persons.” Even slaves were persons under US law.
Now two justices appointed by former president George H. W. Bush and one appointed by current president George W. Bush seek to free the current administration from accountability for its actions by declaring a class of humans somehow not to be “people.” To declare a human being, for any reason, not to be a legal person is unconscionable. Dehumanizing a person is a precursor to inflicting inhuman treatment upon him. To deny him legal status afterwards is to sanction and perpetuate that treatment. These are the acts of a government that considers itself above the law, or indeed above human decency.