[Charles, of course, was the author of the notorious remark: "Kings are not bound to give an account of their actions but to God alone" -- a sentiment echoed centuries later by another tyrant with a penchant for torture: "I'm the commander. See, I don't have to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation."]
Horton has nailed the perversity and implications of the case well -- noting also that the ruling was handed down on the sixth anniversary of the arrival of the first prisoners at Bush's Terror War concentration camp at Guantanamo Bay. From Horton's piece, "Less Than Human":
...And clear evidence of the putrefaction [of the American justice system] that has set in came on Friday. The Court of Appeals for the District of Columbia, which has emerged as a bastion of Republican movement conservative jurisprudence, picked the anniversary of the opening of the Gitmo camps as the day to celebrate them and the abuses perpetrated there.
Three British detainees held at Gitmo, who were seized for bounty payments for no good reason and who were pried free by the British Government, filed suit alleging that they had been tortured and denied their religious freedom. They sought redress from the authors of the Gitmo system, including former Secretary of Defense Rumsfeld, who crafted a series of once-secret orders directing the Guantánamo torture system. Among the practices introduced and used were waterboarding, hypothermia, long-time standing, sleep deprivation in excess of two days and the use of psychotropic drugs—each of which constitutes torture under American law and under international standards. These orders and their implementation were criminal acts under United States law. The evidence that the plaintiffs were in fact tortured is considerable, and the evidence of religious discrimination and abuse has been documented in internal Department of Defense investigations, which suggest, moreover, that at least some of it is officially condoned. However, the plaintiffs are being denied the right to present their evidence and make a case.
The judges hearing the case, all movement conservative Republicans appointed by a President named Bush– Karen LeCraft Henderson, Janice Rogers Brown and A. Raymond Randolph–concluded that the plaintiffs were not "persons" for purpose of the relevant statute protecting religious freedom. They further concluded that acts of torture and contempt and abuse targeting religious belief were within the legitimate scope of conduct of an American cabinet officer, so that official immunity blocked the suit. In so ruling, they substitute the political mantra of the Republican Party for the Constitution and laws of the United States. They implicitly adopt the Republican Party doctrine that the President is free to torture at whim, and to delegate this right to his cabinet officers, and ignore the Constitution and criminal statutes that prohibit this. This of course is a common enough judicial view of the perquisites of raw power in the world, but it is antithetical to the American idea. Indeed it violates the most fundamental of all the rules upon which the American Republic was founded, namely the view, as Fuller recorded it, "Be ye ever so high, still the Law is above Thee."
...Italian philosopher Giorgio Agamben has studied in depth the legal policies which enabled the horrendous abuses that occurred against prisoners during World War II. At their core, he writes, was the introduction of the pernicious view that the prisoners were beyond the protection of the law. He traces this idea back to the doctrine of the homo sacer, a term evolved in Roman jurisprudence by the second century of the common era. It provided that a person ajudged and condemned of certain heinous crimes was beyond the reach and help of the law. He could be victimized, abused and even killed without legal consequence for the perpetrator.
What the Bush Administration has attempted is worse than the Roman model, for a prisoner became homo sacer only at the end of a legal process—it was a formally assessed punishment. The Bush Administration's approach aims at making the Leader's power over these prisoners absolute, and their right to defend themselves or seek freedom through legal process a complete illusion. Yet again we witness a sickening spectacle: Bush-appointee judges snap to attention and follow their Leader, in a display which seems to reveal loyalty not to the law, but to the Party...
Indeed, the panel's entire exercise is dishonorable in the sense in which the English judges used that term in 1628, for it is a stain against honor–as they said in holding torture prohibited by the common law–to attempt to justify torture and to protect the torturer when his victim seeks justice. But this is precisely what this disreputable court has done.
Among the most shocking statements in the ruling is one that Horton alludes to but doesn't directly quote: the idea that the use of torture was "foreseeable" on anyone captured in the Terror War; in other words, it was normative behavior, standard operating procedure, the done thing, and thus in no way could be considered legally actionable. Here is a quote from the excellent story on the case by McClatchy Newspapers:
The Bush judges themselves openly acknowledge that the torture tactics are "seriously criminal," but, astonishingly, they then adopt the "Nuremberg defense," employed by scores of Nazi war criminals: perpetrators should have immunity for their atrocities if the acts were committed at the order of higher authorities. Whatever the Leader orders, either directly or through his designated subordinates, cannot be a crime -- precisely because the Leader has ordered it. His will is law; or rather, his will overrides the law. Horton likens this, rightly, to the "divine right of kings" embraced so fervently by Charles I, but it is also a precise echo of the Führerprinzip of Nazi Germany. This same principle, says the court, is now the basis of the American state.
The court rejected other claims on the grounds that then-Attorney General John Ashcroft had certified that the military officials were acting within the scope of their jobs when they authorized the tactics, and that such tactics were "foreseeable.''
"It was foreseeable that conduct that would ordinarily be indisputably 'seriously criminal' would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants,'' Circuit Judge Karen LeCraft Henderson wrote in the court's main opinion.
I've been writing about Bush's assertion of autocratic power since November 2001, when it first emerged that he had granted himself the "right" to order the assassination of any person on earth whom he -- arbitrarily, at his own whim, without any legal process or oversight -- designated a "terrorist." Over the years, we have seen these authoritarian claims grow in all directions, with scarcely a demur from Congress or the Democratic "opposition." Occasionally a judge has attempted to put some sort of brake on this free-footed tyranny; but more often the courts have upheld it, and nothing has checked it. Given all this, there is nothing surprising about Friday's ruling, although it still comes as a moral shock, much as any atrocity – a gruesome killing, say, or some horrific rape – comes as shock, even though we all know the limitless depravity that human beings are capable of. Brutal, barbaric, dimwitted tyranny is one of those inherent propensities to evil that continually burst forth in human affairs; and now it has come – in its most naked, proud and preening form – to the United States.
Things are far gone now. As I wrote last year in Plain and Simple: Nothing But Ouster Will Stop Bush-Cheney Torture Regime (see original for links):
There is really no point in Congress passing laws restricting the Regime's use of torture (assuming that these slavish sad sacks were actually interested in doing so); nor is there any point in the courts ruling against it (assuming that the Bushist apparatchiks, arrogant partisans and lying dimbulbs on the Supreme Court would uphold any lower court rulings outlawing the Regime's filthy practices). It is obvious beyond all dispute by now that the Bush Regime will simply ignore any and all attempts to put fetters on its atrocities. They will not stop torturing people. They will not stop kidnapping people and holding them without charges. They will not stop launching mass-murdering wars of aggression. They will not stop perverting the electoral system to keep their extremist fringe views ensconced in power.
The only possible way to stop these criminal depradations is to remove Bush and Cheney from office. Nothing else will do it. And any national political figure or presidential candidate who does not have this removal at the top of their agenda, who is not beating this drum day after day and using all their power and influence and position to help bring it about is, as we have noted here before, nothing but an accomplice to torture and murder.
It's that simple.
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This story was published on January 15, 2008.