Andrew Sullivan is a terrific pundit, but he seems to run into more trouble than need be when he ventures into legal analysis:
“It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States . . . . Legal experts and intelligence officials said that the CIA’s internment practices also would be considered illegal under the laws of several host countries.
[. . .]
[Covert action can only be implemented through a Presidential 'finding,' and f]indings must not break U.S. law.”
The assumption is that the president has authority to set up prisons that would be illegal in the U.S. and illegal in foreign countries, but legal … according to what? No wonder Bush wants Roberts and Alito on the court.
There’s a fairly straightforward – and not un-persuasive – way to explain what Sullivan sees as a contradiction: under U.S. law, the CIA could not create ‘secret’ prisons within the United States. U.S. law does not (it would seem, although I have my doubts) prohibit the creation of such prisons abroad. It may well be true that foreign jurisdictions in which the prisons are located would prohibit their creation. But – and this is the key point – foreign laws are not enforced by American courts. That’s fundamental.
When Sullivan says that the prisons would be ‘illegal in the U.S. and illegal in foreign countries,’ then, he’s mixing terms. U.S. law – the only law with which a presidential finding must be consistent – places no restriction (it would seem) on the creation of such secret prisons abroad. The creation might be ‘illegal’ with regard to the laws of the host country, but that ‘illegality’ has no bearing on the legality of the president’s action under American law.
That’s not to say that the president should lightly flaunt foreign law. But the notion that American courts should enforce foreign law – that, in Sullivan’s terms, the president’s breach of foreign law would contravente a requirement to act in accordance with American law – is as radical as it is unsustainable.
(I say ‘it would seem’ because a recent Supreme Court case extended certain protections of federal prisoners beyond the territorial limits of the United States – to reach, specifically, prisoners held at Guantanamo Bay. That suggests that the Court might read the ban on domestic ‘secret prisons’ to reach beyond American territorial limits. For the purposes of this post, though, I’m using Sullivan’s characterization of the law as my basic legal framework.)
UPDATE (11/2/05 12:38 CST): It occurred to me as I got into bed last night that there must be a treaty somewhere under which the U.S. agrees not to violate the laws of foreign nations while acting under the jurisdiction of those nations. If that’s the case, then such violations would be contrary to American law – since treaties are one of three (and a half) sources of federal law, along with the Constitution and statues (and federal common law).
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