Om nom nom.
We don’t know exactly how many, because releasing such information would jeopardize national security, but approximately 100 prisoners at Guantanamo Bay are on hunger strike. Last week, a DC district court rejected the petition of four prisoners to cease force-feeding during the month of Ramadan, when observant Muslims fast from sunrise to sunset. But don’t worry: prison administrators will only forcibly nourish prisoners through neogastric tubes when it’s dark out. If you read down a few paragraphs in the Guardian article, you will also find this:
US government lawyers also argued that the detainees bringing the case, Shaker Aamer, Nabil Hadjarab, Ahmed Belbacha and Abu Wa’el Dhiab, are not “persons” under the Religious Freedom Restoration Act, and are therefore not protected under it.
Fans of War on Terror jurisprudence will be interested to learn that lawyers for the federal government have made this argument since 2006.
The argument that Guantanamo detainees are not “persons” and therefore not protected by the Religious Freedom Restoration Act was first put forward by US government lawyers in Rasul v. Rumsfeld. Shafiq Rasul, along with three other Guantanamo prisoners released in 2004, sued Donald Rumsfeld and other top military officials for violating the Geneva Convention, the Alien Tort Statute, and the RFRA. Lower courts dismissed the constitutional and international law claims but upheld the RFRA claim, until the entire suit was dismissed by the DC Circuit Court of Appeals in 2008. You can read Judge Karen Henderson’s opinion in Rasul v. Rumsfeld here.
Discussion of the RFRA claim begins on page 35 and runs for several pages. At the risk of oversimplifying a masterwork of sophistry, Henderson argues that because the original purpose of the RFRA was to restore First Amendment religious freedoms to various legal contexts, the word “persons” should be construed as it has been in other cases involving the Bill of Rights—that is, people who live in the United States or have substantial contact with it. Guantanamo is in Cuba, and Henderson spends several pages explaining that even though the United States owns, operates and has jurisdiction over the prison, Cuba has ultimate sovereignty. Ergo, prisoners at Guantanamo are not persons under the RFRA.
It’s kind of tortured logic, if you’ll forgive the expression. In her separate concurrence, Judge Karen Rogers takes issue with Henderson’s interpretation of “persons,” arguing that it is at odds with the word’s “plain meaning.” She notes that the court has the “unfortunate and quite dubious distinction of being the only court to declare those held at Guantánamo are not ‘person[s],’” adding that “this is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human.”
Therein lies the problem with much of the jurisprudence accumulated during the War on Terror. Time and again, federal lawyers and many of the courts before which they argue have proven less interested in interpreting the law than in carving out exemptions from it.
The question in Rasul v. Rumsfeld was not whether our national ethics prevented us from treating people that way, but whether we might argue that the prisoners at Guantanamo were not people. The question before FISA courts was not whether the Fourth Amendment permitted mass monitoring of Americans’ phone calls, but whether every person in the United States might be called relevant to an ongoing investigation. These are not intellectually honest approaches to the rule of law. These are rationalizations.
Surely there are some hypothetical behaviors that the War on Terror would not justify. My concern, in reading the arguments of federal attorneys and judges in Rasul v. Rumsfeld, is that common sense has ceased to guide us. It takes a dozen pages of dense legal reasoning to claim that prisoners at Guantanamo Bay are not people. Like the assertion that because you can always fit one more thing in a suitcase, everything you own fits in a suitcase, the argument coheres step by step but is patently absurd as a whole.
How many steps did it take to argue that blanket collection of phone and internet records doesn’t violate the Fourth Amendment? We don’t know, because that argument is secret, along with the identity and reasoning of the judges who approved it. After Rasul v. Rumsfeld, I am not confident that the arguments of our federal government comport with common sense. I think they may be guided by expedience. What makes America special is not that we have the most expedient government in the world.
You could fill a blog with lamentations of how rule-of-law operates; icky lawyers with their easy-to-follow yet objectionable conclusions. But that has almost everything to do with the inherent weakness of writing the rules down with malleable words and very little to do with the ethical compasses of those who practice law. Like democracy, writing the rules down with words is the worst system imaginable, except for all those others that have been tried.