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Wednesday, November 02, 2005

"Black Sites" (and the Questions They Should Raise for Judge Alito)

Kudos to Marty Lederman for the (blog) scoop -- Dana Priest's article in Wednesday's Washington Post is simply not to be missed.  I wish I could also say it is simply not to be believed.  Confirming conspiracy theories that even I didn't support (although, to her credit, my mom did), Priest outlines how, since the fall of 2001, the CIA has held over 100 detainees as part of the "war on terrorism" at secret prisons throughout the world, including, most recently, a Soviet-era compound in Eastern Europe. [And all while debates over the applicability of the Geneva Conventions still rage at the Pentagon, as reported in Wednesday's New York Times.] So, Guantanamo is only for the "mostly bad" guys. For the "all bad" guys, we hold them somewhere else and don't tell anybody. Maybe I was naive; one thing's for sure -- the worst fears of civil libertarians about what the government wasn't telling the public appear to be true.

Priest's article, which goes on to detail how the government has used this tactic specifically to avoid any restrictions that might be imposed by the U.S. legal system, and summarizes how we got here from there, speaks well enough for itself, and I'd only do it a disservice by trying to summarize it further. It does, however, raise a veritable bevy of important and disturbing questions about the limits of governmental secrecy after September 11, and whether these secret detainees have any meaningful remedies in the U.S. legal system that the government has worked so hard to keep them out of... Marty previews part of this in his Balkinization post. But more on that later.

In the interim, I can only hope that, as the media and the public (and my esteemed colleagues on this very Blawg) focus on Judge Alito's views on privacy and religion and similarly social issues (with some noteworthy exceptions), we not forget that basic constitutional questions about individual civil liberties and the limits on governmental power remain legion, even today, over four years after 9/11.

So, in the hopes of starting a movement, I have four questions for Judge Alito:

1) "Do you believe that the Constitution countenances the detention of suspected terrorists at secret prisons, overseas, entirely to frustrate the availability of the American legal process?"

2) What role do you believe that the federal courts in general, and the Supreme Court specifically, should play as a check on potential governmental excesses during wartime?

3) Do you believe that non-citizens have any constitutional rights?

4) If yes, are those rights enforceable in U.S. courts?

I don't know how Judge Alito would answer these questions, but they seem equally pressing, given today's news, and equally worthy of our attention. My answers, for what they're worth, are not quite as one-sided as my politics might otherwise dictate. Nevertheless, and at least as pertains to today's headlines, I'm with Judge Keith -- "Democracies die behind closed doors."

Posted by Steve Vladeck on November 2, 2005 at 12:32 AM in Constitutional thoughts, Law and Politics, Steve Vladeck | Permalink


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Tracked on Nov 3, 2005 10:43:46 AM


Orin -- Your characterization of Judge Randolph's reading of Verdugo is spot-on, of course. Serves me right for trying to write a short question. (As such, you've exposed my beef with Verdugo).

But even cast in your terms, the question of whether constitutional rights obtain to aliens who haven't had "voluntary contacts" with the United States, but who _are_ in U.S. custody, is, I hope you would agree, an important one. Certainly, it's one on which, especially in light of Priest's article, a future Supreme Court Justice's views would be remarkably important.

One last thought -- if the Guantanamo detainees really _are_ who the government says they are (viz., enemy "combatants" who have taken up arms against the U.S.), then _aren't_ their contacts with the United States "voluntary," at least in the lay sense of the term?

Posted by: Steve Vladeck | Nov 2, 2005 2:16:33 AM


Thanks for the clarification. How is the contacts test you would use different from the state action requirement?

FWIW, I had assumed that Judge Randolph meant voluntary contacts with U.S. territory, not involuntary contact with U.S. officials, along the lines of Rehnquist's opinion in Verdugo-Urquidez. Although it's been a long time since I read his opinion.

Posted by: Orin S. Kerr | Nov 2, 2005 2:06:56 AM

Orin -- I think the answer depends on how we are to define "contacts." In _Al Odah_ [soon to be brought back to life], Judge Randolph was deadset on the notion that the Guantanmo detainees have no constitutional rights because of a lack of contacts. So, in that regard, you are absolutely right to point out the distinction. But I would argue that it's a strange conception of "contacts" to think that aliens who were captured by the United States, transported to a foreign detention center, and held there for several years have not had any "contacts" with the United States. And if those aliens _have_ had contacts with the United States, then _Al Odah_ seems to suggest that they have no rights, despite those contacts.

So, I guess a more nuanced question would be: At what point do you believe that aliens become entitled to American constitutional protections? Either way, though, I can't really accept at face value the notion that these detainees have never had contacts with the U.S., so I'm not sure that the distinction between citizenship vs. contacts is the real touchstone in these cases.

Posted by: Steve Vladeck | Nov 2, 2005 1:31:08 AM

Quick question to clarify (3) and (4) -- Has any judge or scholar contended that citizenship is a prerequisite for having any enforceable constitutional rights? Or are you thinking of lack of contacts with the United States rather than lack of citizenship?

Posted by: Orin S. Kerr | Nov 2, 2005 12:57:02 AM

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