Inky99 has everyone riled up with his chart-topping post denouncing Obama’s recent embrace of torture. In “3/5 of a President,” Inky99 declared,
“The United States is now legally free to torture whomever it wants, thanks to the Supreme Court of the land, and the political power weilded (sic) by Barrack Hussein Obama.”
So angry was Inky99 that he took the opportunity to post a racist picture and declare, “I hate Obama…because Obama IS Bush,”. Much invective ensued.
Inky99 badly misrepresented what actually occurred. I followed the path back to the beginning, reviewed the actual sources, and will explain below the fold why Inky99 is wrong about what happened, and is also wrong to be angry about what actually did happen.
I will then suggest that this kind of false hysteria reflects poorly on us as blogging community, and keeps us off the path to making real change.
First, just to be clear, I hate torture, and our participation in it is a moral abomination. There can be no excuse for it. John Yoo should be removed from his position at UC Berkeley Law School, as Brad Delong suggested, and all of the torturers should be brought to justice. Valtin blogs this very responsibly.
However, it is not the case that the Obama administration embraced or legalized torture as a result of what the Supreme Court did on December 14, 2009, in the case of Rasul v. Rumsfeld. (Most of the key documents have been posted by the Center for Constitutional Rights. The Supreme Court’s certiorari order is here.
The Rasul case involved four Guantanamo prisoners who were tortured. The prisoners were not U.S. citizens, and were not present in the US. They asserted claims under the Geneva Conventions, a federal tort statute, the U.S. Constitution, and the Religious Free Restoration Act. The trial court dismissed all of their claims but one, and the Court of Appeals affirmed the dismissals and threw out the remaining claim, too.
What happened on December 14, 2009, that inflamed Inky99 was a certiorari denial by the U.S. Supreme Court. That means the Supreme Court refused to hear the appeal.
A refusal to hear an appeal is not an embrace of the opinion below, and it’s a good thing, too, because a bad Supreme Court decision is much more powerful authority than a bad lower court decision.
However, there all kinds of reasons why the Supreme Court might not hear an appeal, even if they agree with the appellant. For starters, there is sheer volume. The Supreme Court gets 8,000+ appeal requests (certiorari petitions) per year, and hears fewer than 200 — 1.1% last term. So as a practical matter lots of bad law is not going to get reviewed. On December 14, 2009, the Supreme Court granted three cert petitions, and denied over 100, including Rasul’s.
But there is a lot more involved here than sheer numbers. Please understand that the John Roberts Supreme Court is a very, very bad and immoral institution. We progressives do NOT want them making law on important constitutional issues — the fewer decisions they render the better. Roberts, Alito, Scalia, and Thomas represent four reliable votes against morality. Kennedy frequently joins them.
The better justices — Breyer, Ginsberg, Soto-Mayor, and Stevens, will very frequently cast votes AGAINST reviewing bad decisions if they are not confident that Kennedy will join them, on the theory that a decision like Rasul was bad enough below, but they will be making things much worse if they manage to engineer a 5-4 affirmance by the US Supreme Court. Better to say nothing until Kennedy or one of the others is replaced.
And it’s pretty likely that this is in fact what occurred, because it only takes four votes to grant cert, so at least one of the better justices voted against it — more likely all four.
So Inky99 is probably wrong that the cert denial was a bad thing, and he’s certainly wrong to blame it on the Obama administration.
But worst of all, Inky99 is wrong to assert that the decision itself embraces torture. I went to the trouble of reading through the entire 50-page decision — feel free to take a look yourself — and I summarize it thus:
The trial court threw out the Tort, Geneva Convention, and Constitutional claims on the grounds that the torturers were acting within the scope of their jobs, and therefore the claims had to be asserted against the United States (Rumsfeld), not against the individuals, and therefore the claims against the United States had to be first filed within the administrative agency, not in federal court. Once the administrative agency (in this case, the military), ignored or denied the claims, then the federal courts would gain jurisdiction. This is NOT an affirmation of torture, just some procedural garbage about where one has to file the claim.
The Ruling on the Religious Freedom Restoration Act (RFRA) was that the statute was not intended to apply to non-US citizens who were not located in the US, and that Guantanamo was not in the US. The court did NOT rule, as Inky99 claimed, that the defendants were not “persons,” only that they were not protected by the RFRA statute.
Now we may disagree with all of these rulings. I think I do, probably. There are good arguments, which the plaintiffs in fact made, why the technical rules about jurisdiction should be decided differently, and who Congress intended the RFRA to protect.
And I understand the subtext of the court’s opinion here is to throw as many hurdles as possible in the plaintiffs’ path.
However, the Court did NOT hold that torture was permissible. It did NOT hold that victims of torture have no remedy. It is certainly not the case that the result of the decision is that “The United States is now legally free to torture whomever it wants.”
And even if the lower court’s decision unreasonably and unfairly restricted torture victims from asserting their rights, it does not follow that the Supreme Court’s refusal to review that decision ratified that decision. In fact, it might well have been an attempt to contain that decision.
The better, wiser, sounder approach for us is to acknowledge that Obama is not a bad person, he is not a torturer, and he is not the same as Bush. When he does something that looks to be stupid or immoral, instead of calling him names, let’s try to understand why he is doing it. If we can figure out the dark undercurrents in our polity, we will be closer to setting things straight. If we demonize Obama reflexively, we weaken him and ourselves.
Of course we must call out Obama when he does something wrong (e.g., The Banks). But it’s just as important that we refrain from calling him out if he has not done something wrong.
And just to be ultra-clear, I feel no need to reflexively support Obama. He’s a pro-capitalism, economic centrist, which I most assuredly am not.
However, I don’t think Obama, or any president, can single-handled reign in the military industrial complex, or the CIA/NSA espionage industrial complex. His appointing Leon Panetta to head the CIA was a very high profile attempt to begin that work, and the speed at which Panetta got coopted by that agency should send chills down everyone’s spines. This early failure does not mean that Obama is weaker than the presidency itself.
We bloggers have a job in all this, and it is not to manufacture excuses to vent our anger, but to share knowledge effectively, quickly figure out what’s really wrong, and start fixing it.