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If You Undermine the Foundation, What Happens to the Structure?

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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.)

"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."

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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:

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“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:

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“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?!’

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Cal Poly Pomona Sociology Professor. Author of "Globalization and the Demolition of Society," co-editor/author (with Peter Phillips) of "Impeach the President: the Case Against Bush and Cheney." National Steering Committee Member of the World Can't (more...)

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