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John McCain’s ongoing coup against the President and their Republican Party keeps rolling along, with the announcement of a “deal” between the White House and the senator’s guerillas over the terrorist-detainee issue.

Although as of today (Saturday, September 23, 2006) no official text of the negotiated settlement has surfaced, wire service and other reports have supplied highlights.  Two of them especially, if accurately reported, are cause for alarm.

 Apparently, the prohibition of “grave breaches” of the Geneva Conventions is defined to include “cruel and inhuman treatment.”  “Coerced” statements obtained after McCain’s 2005 coup banning them are unacceptable if they violate U.S. constitutional definitions of “cruel, inhuman or degrading” treatment.

 To the extent that any U.S. constitutional case law under our Eighth Amendment—barring “cruel and unusual punishments”—will be the criteria for defining “cruel, inhuman or degrading” treatment, terrorist-detainees can expect to receive kid glove treatment that boggles the mind.

 In 1992, the Supreme Court of the United States decided a case entitled Hudson v. McMillian.  As I have written in The Supreme Court Opinions of Clarence Thomas (1991 – 2006): An Analysis (to be published in 2007):

           "As the result of a beating by guards, ‘Hudson suffered minor bruises and swelling of his face, mouth, and lip.  Blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.’  Predictably, he sued for violation of his Eighth Amendment – guaranteed civil right to be free of‘cruel and usual punishments’.”

 In a 7-2 vote (Sandra Day O’Connor writing the opinion), the Supreme Court ruled that even though, as Justice Thomas proved, the Cruel and Unusual Punishments Clause historically applied only to court imposed punishment, not to conditions of incarceration, the Clause could be invoked not only by a prisoner, but even if he didn’t suffer serious injury.

 In 1993, the Court went a step further in a case where a state prisoner named McKinney sued prison officials for imposing “cruel and unusual punishment,” alleging that he:

was assigned to a cell with another inmate who smoked five packs of cigarettes a day.  * * *  The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked . . . and that certain cigarettes burned continuously, releasing some type of chemical . . . .  [The prisoner] complained of certain health problems allegedly caused by exposure to cigarette smoke.

The Court allowed him to sue (he still had to prove his case factually), but Justice Clarence Thomas nailed the majority by observing that Hudson had expanded the Eighth Amendment by ruling that it could be violated by a use of force causing only a minor injury, and now in McKinney it was extending the extension to include merely the risk of injury.

This line of cases is referred to by the Court as involving “conditions of confinement,” by others as raising questions of “prisoner’s rights”—a far cry from the original meaning of the Cruel and Unusual Punishments Clause: court imposed punishment, such as drawing and quartering.

How far can judicial indulgence of prisoners’ needs and wants extend?  Let’s look at another case I discuss in The Supreme Court Opinions of Clarence Thomas (1991 – 2006): An Analysis.

In Farmer v. Brennan a preoperative transsexual who projected feminine characteristics sued under the Cruel and Unusual Punishments Clause because he had been housed in the prison’s general population, and there assaulted and raped.  The question for the Supreme Court was whether the case could go forward, giving the prisoner an opportunity factually to prove his allegations, especially the requirement that the authorities had acted with “deliberate indifference” to his situation.

The Court said “yes,” and of the eight justices who read the Cruel and Unusual Punishments Clause so broadly, five are still there: Souter (who wrote the opinion), Stevens, Scalia, Kennedy, and Ginsburg—and they have since been joined by Breyer, the liberal internationalist bleeding heart. 

So when Guantanamo terrorist-detainees like Osama bin Laden’s bodyguard and the 9/11 mastermind start complaining that they’re being cruelly and unusually treated because their meals are not catered by a five-star restaurant, they may find some sympathy in the Supreme Court of the United States—and smiles of approval from the Republican White House and the McCain Guerillas.