How the Federal Courts Can Clean Up America's Extraterritorial Prisons -- Including Its Secret Prisons: Learning from the Courts' Experience With Jim Crow Criminal Courts

Today, the executive branch detains non-citizens in extra-territorial facilities in Guantánamo Bay, at Bagram, Afghanistan, and in secret prisons around the world. Anti-torture treaties, contends the executive, do not apply there.

What is the Administration's rationale for its decision? Before the United Nations Committee Against Torture, the Administration offered a fine - but unpersuasive - distinction. It claimed anti-torture rules apply in territory under U.S. "jurisdiction" but not in territory under U.S. "control." Tellingly, most detention sites, including the CIA's "black sites" are under U.S. control - but, supposedly, not under its jurisdiction.

The idea that a U.S. prison abroad - doubtless maintained by an agreement, tacit or explicit, with the country that is the formal sovereign that it will not interfere - is not under U.S. jurisdiction, is deeply troubling.

Yet Congress is unlikely to intervene on this score any time soon. So far, it has adhered stubbornly to the path of least resistance: doing nothing to channel unfettered executive discretion. There is, however, historical precedent of a sort for the federal courts to do much more. As indeed they should.

History shows that a crisis can also prove an opportunity. Almost a century ago, federal courts faced another human rights catastrophe, in another field previously seen as immune to federal judicial scrutiny: state court criminal proceedings.

Yet the federal courts of that era asserted jurisdiction and protected rights. Today's courts should do the same with respect to all prisons run by the United States, here and abroad, secret and open. When rights violations in the name of the United States cross international lines, so too must the reach of the federal courts.

A Key Parallel: The Civil Rights Crisis in Southern Criminal Courts

Constitutional criminal procedure took root only in the 1920s, when the Supreme Court issued rulings overturning African-Americans' convictions on the ground that they were tainted by race prejudice or that they validated and excused racist violence.

In 1923, in Moore v. Dempsey, the Court invalidated a conviction because, as Justice Oliver Wendell Holmes put it, the five African-American defendants "were hurried to conviction under the pressure of a [white] mob without any regard for their rights and without according to them due process of law."

The Court's landmark decisions on coerced confessions in 1926 in Brown v. Mississippi and later, in 1940, in Chambers v. Florida also concerned African-American defendants facing Jim Crow justice. (The defendant in Brown, conceded state officials, had been beaten - but "not too much for a Negro.")

The Supreme Court rejected, on Equal Protection grounds, convictions when African-Americans were excluded from juries, as in 1935 in Norris v. Alabama. Moreover, the Court hinted at judicial protection of the right to counsel in the 1932 case of Powell v. Alabama. (It was not until forty-one years later, however, in 1963's Gideon v. Wainwright, that this glimpse took full form.)

In response to these problems, Southern politicians and Congress did … nothing. This is hardly surprising. In addition to being in practice unprotected by the Constitution, African-Americans then were largely excluded from democratic processes. As John Hart Ely later argued, political process failure invited judicial intervention.

No wonder, then, that federal courts intervened. Using Due Process analysis, the Court found fatal errors in these criminal proceedings thanks to the racist prejudice and violence that infected southern justice systems.

In the end, rather than limiting itself to case-by-case adjudication under the Due Process Clause, the Court eventually fashioned new, nationally applicable, prophylactic rules - the exclusionary rule of Mapp v. Ohio, decided in 1961, and Miranda v. Arizona's famous warnings. Such rules were vital means to stem the tide of constitutional violations by making sure rules were crystal clear before police acted.

In the same era, the Court also expanded the scope of federal supervision of state courts via habeas corpus jurisdiction During Reconstruction, in 1867, Congress had authorized federal court review of state court criminal judgments. But that law initially saw scant use.

In 1952, however, the Supreme Court dramatically enlarged habeas jurisdiction in Brown v. Allen (another case involving exclusion of African-Americans from juries). Brown eased the burden on the Supreme Court, giving lower courts a role in policing compliance with new constitutional rules.

The guidance this earlier era proves for our day is clear: The unfamiliarity of an arena does not rob federal courts of their obligation to ensure that the government acts consistent with the values embodied in the Constitution.

History's Lesson: The Roberts Court Can Protect Rights When Our Government Violates Them

Currently, both the scope of constitutional rights, and the availability and nature of federal court remedies, for overseas detainees are issues that remain unsettled in the Supreme Court. But it is likely to be the Court, and only the Court, that will ever address them. That's because -- like the African-American plaintiffs in the 1930s wave of rights litigations -- these detainees fall outside the pale of politicians' concern. Today, that exclusion is due to nationality, and, perhaps, religion. But it's worth remembering that (misleading rhetoric to the contrary aside) the Bill of Rights largely protects "persons," not merely "citizens" - as do, of course, the relevant treaties. The Court has never applied the constitutional language mechanically. Had it done so, for example, the Fourteenth Amendment's equality promise would never have been enforced against the federal government.

The Court - and more broadly, the federal courts as whole -- now have a chance to do what the political branches, it seems, are afraid to do. In Hamdan v. Rumsfeld and the successor litigation to the Supreme Court's 2004 Rasul v. Bush ruling, federal courts are about to determine the scope of extra-territorial rights and remedies.

It would be Pollyannaish to presume the Roberts Court will follow earlier Courts' lead. Yet the articulation of new rules and remedies for a new crisis would be in keeping with the Court's finest traditions. It would be an important blow against radical ideologies that justify mindless prejudice and mass murder. One of the greatest rebuffs to prejudice is equal treatment under the law. One of the greatest rebuffs to violence is the law's ability to create order without resorting to it.

And if the Court falls short? Commentators and the public must not forget that eighty years ago, the Court reached out to prevent and regulate rights violations that amounted to torture with new rights and remedies. "Judicial activism," in other words, is an ideal toward which the Court must strive. Sometimes, as in the 1920s, activism is the minimum that is necessary to ensure that rights are respected: When rights are flagrantly violated, the courts must take strong action to protect them, or effectively abdicate their most central role.

Now, as Then, the World Is Watching

A final lesson from the Supreme Court's role in the 1920s and later, in the 1950s and 1960s, is also pertinent here. Legal scholar and historian Mary Dudziak argues that judicial responses to Jim Crow were "a Cold War imperative" in response to international condemnation of racist practices. In battling racism, courts placed a pivotal role shoring up America's Cold War reputation as freedom's defender.

With international condemnation of American practices at Guantánamo and elsewhere intensifying, and even staunch allies like Australia and Britain joining the chorus, intervention by the Court to reaffirm rights would shore up America's badly battered image around the globe. For how can we ask other nations to make common cause with us when we reserve the right to secretly torture our citizens, outside the reach of our courts and laws?