|Guantanamo Bay Prison|
Five years ago I wrote two articles for Commonweal about religion at Guantanamo. The shorter follow-up dealt with Rasul v. Rumsfeld (and Rasul v. Myers), in which the plaintiffs appealed in part to the Religious Freedom Restoration Act (RFRA).
At that time, courts ruled that Guantanamo detainees are not “persons” under RFRA:
Congress legislated against the background of precedent establishing that nonresident aliens were not among the ‘person[s]’ protected by the Fifth Amendment … and were not among ‘the people’ protected by the Fourth Amendment.
In a concurring opinion, Justice Janice Rodgers Brown admitted she was troubled by the finding.
Accepting plaintiffs’ argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. Yet, the majority’s approach is not much better. It leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not “person[s].” This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human.(italics added)
She further argued that Congress did not foresee a situation like Guantanamo: “prolonged military detentions of alleged enemy combatants were not part of our consciousness.” She wrote that “Congress should revisit RFRA with these circumstances in mind.”
It is also true that Congress did not foresee large for-profit corporations as persons protected by RFRA. With the new, expanded definition of ‘person’ post-Hobby Lobby, lawyers representing Guantanamo detainees have thus filed a Temporary Restraining Order in the D.C. District Court.
Read the rest here.
I think courts have this backward. The detainee is a person. The corporation is not.