Suppose a United States Court of Appeals decided that even if torture is illegal, torturers cannot be prosecuted because “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” And suppose the same court when approached by plaintiffs who have alleged that “high-level U.S. government officials treated them as less than human,” told those plaintiffs that the court itself did not regard them as “persons.” Would such a legal ruling merit great attention in the Washington Post or the New York Times? Apparently not.
What the U.S. Court of Appeals for the District of Columbia Circuit decided last Friday, was that, as James Oliphant reported in the Baltimore Sun, “even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.”
As Eric Lewis, a lawyer for the detainees said, “It is an awful day for the rule of law and common decency when a court finds that torture is all in a days’ work for the secretary of defense and senior generals.” It is also an awful day when the leading newspapers in America regard this event as worthy of nothing more than a cursory mention.
What the federal court of appeals has in effect done is to undergird a culture of torture. They have concocted a legal defense for individuals who might want to shield themselves behind a line of defense that failed the Nazis: we were just following orders. And they have constructed a legalistic artifice that dovetails into the mindset that facilitates torture: the de-humanization of the victims.
