If You Undermine the Foundation, What Becomes of the Structure?

by Dennis Loo

Obama during a September 8, 2008 campaign rally stated: "Habeas corpus ... is the foundation of Anglo-American law, which says very simply, if the government grabs you, then you have the right to at least ask, 'Why was I grabbed?' and say, 'Maybe, you've got the wrong person." (Thanks to Rachel Oswald’s article in Raw Story for this reference.)
crumbling foundation
"The reason we have that safeguard is we don't always have the right person," said Obama at the campaign rally. "We don't always catch the right person. We may think this is Muhammad the terrorist. It might be Muhammad the cab driver."
On March 12, 2009, the Obama Justice Department kicked this foundation out from under the edifice of Anglo-American law by arguing that the June 2008 Supreme Court decision (Boumediene v Bush) that held that Gitmo detainees had a right to challenge their detention did not apply to those detainees held (and tortured) prior to Boumediene.
The Justice Department states in its brief:
"Boumediene - decided four years after plaintiffs' detention ended - cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct violated the Constitution or the RFRA [Religious Freedom Restoration Act] statute."
As Rachel Oswald recounts:
“The brief was filed as part of the Rasul v. Rumsfeld lawsuit of four former detainees, who include the ‘Tipton Three,’ and are seeking damages for their detention and reported torture at Guantanamo Bay against Rumsfeld, the Chairmen of the Joint Chief of Staffs and other top military officials. The suit charges them with violations of the Fifth and Eighth Amendments, the Alien Tort Statute, the Geneva Conventions and the Religious Freedom Restoration Act. The plaintiffs are individually each seeking $10 million in damages.
“The men were held for more than two years at Guantanamo where they were reportedly subjected to regular beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point and religious and racial harassment. They were never charged with any crime. The men were released in March 2004 and returned to their home country of Britain.”
As it turns out, these detainees were during humanitarian work in Afghanistan when they were turned in to U.S. authorities by Afghan warlords seeking the bounty offered by the U.S. for “terrorists.”
According to the Obama Justice Department then, a) habeas corpus was not a foundation of Anglo-American law before the June 2008 Supreme Court Boumediene decision because if it had been then they wouldn’t be arguing now that these defendants are not and were not entitled to that right, and b) government officials who were engaged in beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point, religious and racial harassment, et al, were not aware that these acts were illegal until told so by the Supreme Court.
Candidate Obama thinks that habeas corpus is a foundational principle for our law but President Obama apparently has rethought that terribly rash statement and now holds that habeas corpus has only been around for less than a year and not since the Magna Carta of nearly nine hundred years ago.
This is consistent – Obama’s administration has been nothing if not consistent in their deeds and in their court filings (as opposed to their public statements before Congress or before the nation) – with Obama’s stance on Bagram: prisoners there have no habeas corpus rights and Gitmo detainees “ultimately” have a right to habeas corpus, but only (now with this latest shoe being dropped by the Obama administration) if they were unjustly detained after June 2008.
As I wrote in January 2008:
“Imagine that you and a police officer have both just seen a cold-blooded murderer and sadist torturing and then killing people in plain daylight. The cop turns to you - instead of going after the murderer - and says: ‘If you vote for me to become the police chief I will stop this murderer from doing what he is doing.’
“He promises you change and the end to murderous rampages.
“You scream at him, ‘Why aren't you doing something RIGHT NOW about that murderer?!’
“He says: ‘What that guy is doing isn't serious enough to warrant immediate action. We must wait for over a year before I can do anything because as police chief I'll have more power and REALLY be in charge. THEN I can really do something to stop these things from happening.’
“Meanwhile the murderer is still murdering people and torturing them. But the cop promises you that he will change things if you elect him police chief.
“What would you think of such a cop?”
If you are one of the tens of millions of people who hoped that Obama would right what has been so terribly wrong, what do you think of him now? His appalling actions since becoming president are actually in line with his immoral stance before he was elected. His opposition to the Iraq war was never on the grounds that it was an illegal and immoral war. His opposition to it was on the putative grounds that it was the “wrong” war. His opposition to the Military Commissions Act of 2006 that “legalized” torture and the suspension of habeas corpus rights were on the grounds that it was “dumb,” not that it was morally and legally wrong. His stance of “change” and “hope” were never designed to do anything but deceive people.
This week Obama made the extraordinary claim that the Bush regime rectified their abuses about two years after 9/11. This is: a) a dramatically false statement, as the longer Bush and Cheney were in office, the more brazen and monstrous their transgressions became, and b) being put forward now by Obama as groundwork for his claim that there is no reason to prosecute the Bush gang of criminals and tyrants.
Yesterday the New York Times reported:
“The Obama administration said Friday that it would abandon the Bush administration’s term ‘enemy combatant’ as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.
“But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.” (Bold added).
In other words, the Obama Administration is going to retain the content of what Bush and Cheney were doing but they’re not going to call it by the same name. What a relief! All I really wanted from Obama was for him to change the names, not change the actions! Nomenclature, after all, is reality.
Can we any longer rely upon people who from one side of their mouth say that they are standing up for sacrosanct principles of the law and on the other side of their mouth defend, excuse (and perpetuate themselves) the actions of those who have explicitly, repeatedly, and egregiously violated those sacred principles?
Isn’t it time that we grow up as a people and recognize that we cannot pass our responsibilities for standing up for justice and fairness onto others but must shoulder these responsibilities ourselves? March 19th is the sixth anniversary of the immoral, illegal and unjust invasion of Iraq. Where will you be on that day? What will you be doing?


World Can't Wait mobilizes people living in the United States to stand up and stop war on the world, repression and torture carried out by the US government. We take action, regardless of which political party holds power, to expose the crimes of our government, from war crimes to systematic mass incarceration, and to put humanity and the planet first.