The Government's Long-Term Plan for Terror Suspects:
Why It's Contrary to Supreme Court Precedent, and to the New, Revised Memo on Torture

Today, hearings begin on White House counsel Alberto R. Gonzales's nomination to become Attorney General of the United States. Gonzales's nomination, of course, is highly controversial. The controversy stems from Gonzales's approval of the memorandum representing the Administration's earlier, indefensibly narrow view of what counts as torture under international and domestic law. (The White House is stonewalling the Senate Judiciary Committee on other, Gonzales-authored documents which may also prove very damaging.)

In requesting the memo, Gonzales bypassed the Office of the Deputy Attorney General, which is usually notified of politically-delicate executive-branch requests for legal opinions. Far worse, in approving the memo, he bypassed settled law: The memo's view of torture is untenable. Now, even the Administration has tacitly admitted as much - by revising its view in a new memorandum.

By releasing a new, revised memo on torture, the Bush Administration is doubtless trying to defuse this controversy - and ensure Gonzales's Senate confirmation. But other evidence plainly belies any claim of a genuine change of heart, or any new resolve to comply with the law, on the Administration's part.

To the contrary, even now, reports indicate the Administration is planning to deepen the black hole into which those who are deemed "enemy combatants" are thrown. That plan blatantly violates not only international law, but also - as I explain below - U.S. Supreme Court precedent that was handed down as recently as last year.

So while the Administration's public stance on the treatment of foreign detainees may be one of contrition and new determination to comply with the law, its private stance is one of premeditated violation of the most important kind of laws - those meant to protect liberty, dignity, and life itself.

The Administration's Claim That It Has Revised Its "Torture" Definition

To understand what is at stake, a bit of background may be in order.

In August 2002, the Office of Legal Counsel (OLC) - which writes legal opinions considered binding on federal agencies and departments - circulated the most incendiary of the so-called "torture memos." (The memo did not become public, however, until June 2004.) Other "torture memos" advised, among other things, that building an interrogation center at Guantánamo Bay, Cuba, would allow the Administration to escape judicial oversight of prisoner treatment.

On December 21, 2004, new documents were released that show that, over the past three years, the abuse of foreign detainees in U.S. military custody has been far more widespread, twisted, and grave than the Defense Department would have us believe.

On December 30, 2004, the Justice Department published the revised memorandum admitting that a more expansive set of acts constitute torture under domestic and international law. (For more details on the content of the new memorandum, see Michael Dorf's recent column for this site.)

Now, the head of the OLC declares on the Justice Department's website that "torture is abhorrent both to American law and values and international norms," and then rejects a previous statement that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law.

Yet on January 2 of this year, The Washington Post reported that the Bush administration is preparing long-range plans for indefinitely imprisoning suspected terrorists whom they do not want either to set free, or turn over to courts in the United States or other countries.

What's wrong with these plans? The answer is: They are, beyond debate, unconstitutional. And there is no way the Administration could possibly have missed the point - as the reasons they violate the Constitution were spelled out in a Spring 2004 U.S. Supreme Court decision.

Supreme Court Precedent Says Detainees Can Sue In Federal Court

The decision was Rasul v. Bush. There, in an opinion written by Justice John Paul Stevens, the Court ruled, 6-3, that federal courts have the jurisdiction to consider challenges to the custody of foreign citizens, wherever they are detained by the United States.

As a general matter, the majority found that nothing in any of the Court's precedents "categorically excludes aliens detained in military custody outside the United States from the 'privilege of litigation' in U.S. courts." (To the contrary, the courts of the United States have traditionally been open to nonresident aliens.) More specifically, the Court also held that foreign citizens detained at Guantánamo Bay, Cuba, have the right to file petitions for habeas corpus.

Justice Stevens sketched the Kafkaesque nightmare the detainees - two Australians and twelve Kuwaitis had so far suffered: "They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

The Court's decision was plainly correct. It is - and ought to be - the right of anyone imprisoned by the United States to go to a federal court and demand that the government prove he has been lawfully incarcerated.

How the Government Has Flouted the Supreme Court's Edict

Not only has the government failed to comply with the Supreme Court's wise ruling, it has done everything possible to avoid doing so.

The Court plainly stated that the individual habeas corpus petitions of Guantánamo detainees could go forward. The government's response should have been to go litigate these cases on their facts: With respect to a particular detainee, what were the precise circumstances behind his detention?

But instead, the government concocted a meritless legal argument to try, once again, to get district courts to dismiss the petitions. It claimed that "some" military process would be enough; full U.S. federal court habeas corpus review, it said, is not necessary even though the Supreme Court held directly to the contrary in Rasul.

Meanwhile, the Administration seems to be trying to evade the Court's Rasul ruling in far more troubling, devious, and illegal ways. The State Department proposed transferring large numbers of Afghan, Saudi and Yemeni detainees from the military's detention center on Guantánamo Bay, Cuba, to U.S.-built prisons in their home countries.

Presumably, the Administration's view is that the transfer will moot the need for habeas corpus review since, technically, the prisoners - though held at the U.S.'s behest

- may not legally be in U.S. custody.

But, technicalities aside, the practical reality is this: The transferred prisoner, still denied the review to which the Supreme Court said he was entitled, remains imprisoned - likely under even worse conditions than he endured before - and potentially subject to torture. And the reality is also this: The United States is responsible for this torture if its transfer foreseeably subjected him to it.

In short, the same Administration that now says it is eschewing torture, is also sending detainees to prisons in which they may very well face torture. Ironically, these detainees may wish they had never bothered to go to the Supreme Court in the first place: They won a Pyrrhic victory, at most.

Meanwhile - and even more flagrantly - the Defense Department plans to ask Congress for money to build a new prison to hold detainees whom the government does not have enough evidence to charge in federal court, and who are unlikely to ever go through a military tribunal due to lack of evidence.

According to intelligence, defense and diplomatic sources, a subtle message is being conveyed down the chain of command that - regardless of the Supreme Court's holding - CIA and military officials on the ground can lock detainees up and throw away the key. The result will be more of what we've already seen at prisons in Cuba, Iraq and Afghanistan: massive abuses by those in the field, and deniability by those at the top. The Abu Ghraib prison abuse scandal has shown us where the lack of scrutiny and oversight leads.

Under Rasul, here's what ought to happen to all detainees if the government were to deign to comply with the Constitution: The detainees would challenge their detention in U.S. federal courts through habeas corpus petitions. If no facts supported the detention, they would be released and most likely deported.

That is as it should be: One of the most basic propositions of our system is that we imprison people for conduct, and prove their guilt by facts. We do not imprison them on mere speculation that they may be dangerous; indeed, that is one hallmark of a fascist regime.

Even Justice Antonin Scalia made clear - in another war on terrorism decision, Hamdi v. Rumsfeld - that, "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." It seems, then, that the Administration's new prison plan would shock the conscience of even one of the most - if not the most - conservative members of the Supreme Court.

A Regime Moving Not Toward Candor and Contrition, But Toward Duplicity

How could the White House regain the trust of the American people?

Most immediately, it could withdraw Gonzales's nomination. He requested and approved a memorandum on a crucial human rights issue - torture - which even the Adminstration has now, in effect, conceded was contrary to law.

This act disqualifies Gonzales from being a plausible candidate for the top law enforcement office in the country. Our Attorney General should be a shining star for justice - think of Robert Kennedy, and the Civil Rights Movement - not a person who gives even horrific torture his blessing.

But much more fundamentally, the White House must tell the Pentagon and the CIA - as well as the American people - that we will not build U.S. gulags in Afghanistan, Yemen, Saudi Arabia and other torture-friendly countries.

Such gulags have a metastatic tendency. An unbridled power of military and CIA detention will not forever be deployed only against suspected terrorists. A parallel system of justice in which the Administration feigns compliance with Supreme Court mandates, yet secretly subverts them, will not only apply to foreign citizens; someday, American citizens, too, may find that they have won their Supreme Court cases, only to wish they had not.