Rasul vs. Rumsfeld, Guantanomo detainees are now “non-persons”

This is an article I have recently finished. I hope to get it published at the Carleton Leveller.


Shafiq Rasul, Asif Iqbal, Rhubel Ahmed and Jamal Al-Harith are four British citizens. They have never been part of a terrorist organization nor have they ever been convicted of any crimes related to terrorism. Despite this they spent over two years at the US prison in Guantanamo Bay. There they were tortured and denied any legal due process. In 2004, after two years of imprisonment, they were released. That same year, with the assistance of Eric L. Lewis, these men took Donald Rumsfeld and senior US military officials to court, charging them with violating or disregarding the Alien Tort Statute, the Religious Freedom Restoration Act (RFRA), the Geneva Conventions and the Fifth and Eight Amendments of the US Constitution. The plaintiffs wanted $10 million in compensation each.

Rasul vs. Rumsfeld, as this case was named, eventually made its way to the United States Court of Appeals for the D.C. Circuit where, on January 11th, 2008, it was dismissed by the court. The reasons, the court stated, were as follows. One, Rumsfeld and senior US military leaders could have had no way of knowing that Guantanamo inmates had violable Constitutional rights. Second, as stated on page 14 of the courts decision, “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”

These two statements alone may be somewhat expected among critics of US government policy. Just as Donald Rumsfeld had no way of knowing that Iraq had no weapons of mass destruction, and that the postwar situation would dissolve into chaos (unknown unknowns?), he had no way of knowing Guantanamo inmates possessed Constitutional rights. Furthermore, of course torture is a foreseeable consequence of being detained by the US military. Who would think otherwise? The third reason for the court’s decision is what deserves the most attention.

The plaintiffs in Rasul vs. Rumsfeld argue that during their detainment at Guantanamo they were subject to abuse that violated the RFRA, which guarantees persons freedom from government persecution of religion. However, according to the D.C. Court of Appeals, Guantanamo inmates were not protected by the RFRA. The reason? According to the D.C. Court of Appeals, for the sake of the RFRA Guantanamo inmates are not legally qualified as “persons”.

Yes, according to the Center for Constitutional Rights, “In a 43-page opinion, Circuit Judge Karen Lecraft Henderson found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantánamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law”!

This decision was appealed to the Supreme Court, which overruled the Court of Appeals decision on the basis of a previous ruling it had made, Bush vs. Boumediene. In Bush vs. Boumediene, it was recognized that Guantanamo detainees had the right of habeus corpus. Using this ruling as an argument, the plaintiffs claimed that since habeus corpus was granted to Guantanamo detainees other rights, such as the right to fair and humane treatment and freedom from religious persecution by the government, could also be granted. Guantanamo inmates, the plaintiffs argued, were in fact legal entities, or “persons.”

On December 15th, 2008, the D.C. Court was sent into remand but on April 24th 2009 came again to the same conclusion. What the D.C. Court of Appeals declared in mid 2009 was that Guantanamo inmates are indeed not “persons” for the sake of the US Constitution, and that other rights, such as the right to not be tortured, do not flow naturally from the right of habeus corpus. Furthermore the court declared that, save habeus corpus, Guantanamo inmates have no other rights unless they are explicitly granted by another court in the future.

The plaintiffs attempted to again appeal to the Supreme Court arguing that the D.C. Court had come into conflict with the Supreme Court’s ruling. Under pressure from the Barack Obama administration, the Supreme Court refused to hear the case. On Decemeber 14th 2009 it let the D.C. Court of Appeals’ ruling stand.

After the 9/11 attacks many people criticized the steps being taken by the Bush administration to allegedly fight or prevent “terrorism”. These included seizing and searching property without warrants, detaining individuals without evidence, and arbitrary and wide scale monitoring of phone calls, emails and financial records. A frequent criticism of the Bush, and more recently, Obama administrations was that these activities were illegal or un-Constitutional. It now appears that this is no longer an issue. Rather than relying on the old fashioned technique of illegal search, seizure, and detainment, the government will now simply file some formal court documents and erase the legal standing of individuals who challenge its activities, thus making their rights as persons evaporate into thin air.

This is all done legally and in formal fashion. As Chris Floyd wrote in his article “Dred Scott: Redux” (Dec 18th, 2009), “…our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.”

This case has evoked comparisons, among Floyd and others, to Dred Scott vs. Sandford (1857) when slave Dred Scott sued John F.A. Sanford for his freedom. Scott was denied his freedom because, among other reasons having to do with state’s rights and the sovereignty of the federal government at the time, it was ruled that slaves imported from Africa and their descendents were not recognized as citizens and as such were not protected by the Constitution. Presently this odd status of “non-person” applied to – persons – has re-entered legal and political dialogue. War is peace, hate is love, lies are truth and now, persons are non-persons.

Sources/Further Reading

“Dred Scott Redux: Obama and the Supremes Stand Up for Slavery” Chris Floyd. December 18th, 2009. Empire Burlesque

“US: Guantanamo Prisoners Not ‘Persons’” William Fisher. December 16th, 2009. Antiwar.com

“Court Of Appeals Rules Detainees are not “Persons” in Guantánamo Torture Suit” April 24th 2009, Center for Constitutional Rights

“Judges Dismiss Suit Seeking Damages for Guantanamo Torture” January 11th, 2008. Center for Constitutional Rights

“Rasul vs. Rumsfeld” Center for Constitutional Rights

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s