The Torture Loophole Preserved

Two hundred, thirty-three years ago:We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…We all know that the injustice of slavery clouded the reality of these brilliant words. However, years of progress, and certainly the election of Barack Obama, was to set aside such errors and enshrine equality amongst all people of earth. I believe that these “unalienable Rights” are such that no government nor individual can infringe upon these rights as they are natural to all people. These rights, in my mind, involve life, liberty and property. It is arguable whether rights such as that to a writ of habeas corpus or those granted under the Bill of Rights fall under such classification. That question has been one of significant debate in our federal courts over the last several years.In the aftermath of September 11 and the invasions of Afghanistan and Iraq, the Bush administration notably expanded the interpretation of provisions which excluded such rights. In the Military Commissions Act of 2006, Congress passed legislation which prevented unlawful enemy combatants from submitting a writ of habeas corpus to the federal courts thus restricting such prisoners to legal recourse via a military tribunal. This was challenged in Boumediene v. Bush with the Supreme Court ultimately overturning the provision allowing for Guantanamo detainees to to challenge their detentions in federal court.Fast forward to Rasul, et al., v. Myers, et al., where four Guantanamo detainees further challenged their lack of rights. Specifically, they asserted that they were subject to torture and religious abuse while in custody. In response to Boumediene v. Bush, the petitioned the court for a second review (here is the Court of Appeals decision) of the case seeking to extend Constitutional and international law protections against such treatment.On Monday, December 14, the Supreme Court refused to hear the case thereby affirming the decision from the Court of Appeals. As such, unlawful enemy combatants, and, in particular, these former detainees are denied protection against torture and declared as “not persons” under the Religious Freedom Restoration Act. Further, the Military Commissions Act may extend to U.S. citizens who are determined to be unlawful enemy combatants.The Obama administration could have swayed the Supreme Court to hear the case. Instead, they fought to uphold the previous decision which effectively allows torture in cases where the is a loophole in legal jurisdiction. Read more on the decision here and here.

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