In evaluating allegations that U.S. military forces deprived four British men of human rights during two years they were held captive in Guantanamo Bay prison, a U.S. appeals court found an innovative way to let the Bush administration off the hook. Two of three judges ruled the men -- because they are not U.S. citizens and, technically, were not imprisoned in the U.S. -- were not legally "persons" and, therefore, had no rights to violate.
While those judges were defying common sense and decency by denying legal personhood to living human beings, an appeals court in Boston has been reviewing an April 2007 decision by Federal Judge Paul Barbadoro that engaged in a different form of judicial activism -- granting human rights to corporations.
Barbadoro struck down a New Hampshire law that prevented pharmaceutical corporations from learning exactly what drugs doctors prescribe and how much they prescribe. The law aims to protect doctors and, indirectly, their patients, from drug companies pressuring doctors to choose their products.
The judge's grounds? He claims corporations, as legal persons, have "free speech rights" that would be infringed by such a measure.
The real issue in these cases (Maine recently passed a similar law) isn't free speech at all; it's manipulation and control. The drug salespeople only will decide what to say after poking into the doctors' prescription records. Under the guise of protecting speech, Judge Barbadoro denied both legitimate privacy rights of doctors and key protections to ensure patients are prescribed drugs based on their medical situation, not pressure applied to their physician.
Taken together, these two rulings are a perplexing and dangerous development. The founding principle of our country is right in the Declaration of Independence: all people are "endowed by their Creator with certain unalienable Rights." It is not for judges to decide who is and who is not a human being.
Nor should the courts play Creator by endowing legal constructs like corporations with human rights. Our constitutional rights exist to prevent large, powerful institutions -- whether governments, corporations, or other entities -- from oppressing us humans.
For too long a strange dichotomy has persisted between principled people on the political left and right wings. The left wing often warns against the growing power of business corporations. The right wing complains the left ignores the overweening power of the government and is "anti-business."
Both sides have been seeing only part of the same elephant. What's happening is a merger of corporations and state.
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Already there are corporate "black holes" for human rights that rival government affronts like Guantanamo. Under the Bush administration's legal framework for Iraq during its occupation, the Iraqi government wields no authority over Blackwater corporation's security guards.
And it's not clear the U.S. government does either. As a result, we may never see anyone punished for Blackwater's wanton killing of Iraqi civilians in Baghdad last September.
Then there's the case of Jamie Leigh Jones, an American employee of Halliburton/KBR in Iraq who claimed she was gang raped by co-workers in 2005. U.S. officials reportedly handed the evidence to KBR, whereupon the evidence apparently disappeared. Nobody in Congress, Democrat or Republican, has been able to persuade the Bush administration to reveal what it has done about the case since then.
Halliburton/KBR, like Blackwater, apparently enjoys the rights of a person, but not the responsibilities.
The danger of "corporate personhood" is a bit like global warming; people have warned us of the threat for decades only to go unheeded because the dire consequences seemed far-fetched.
But look at what's happened to the First Amendment. Corporations use it to strike down laws clearly designed to protect citizens, even while courts deny prisoners the right to know what evidence the government is using against them. It's time for alarm.
We should take offense whenever we hear the dangerous notion of "corporate citizenship" promoted. Soon, the only citizens with real power in the United States may be the corporate kind.
Jeffrey Kaplan is a researcher with ReclaimDemocracy.org, a non-profit organization working to restore citizen authority over corporations.