But is that true?

Actually, it’s not clear, Scott Silliman, a professor at Duke University Law School and director of the Center for Law, Ethics, and National Security, tells Warren Richey of the Christian Science Monitor. After all, “we’ve never done this before,” says Silliman.

It’s not even clear what “this” is.

Is the administration going to move all of the men to military custody, or will some be moved to federal civilian custody for trial in a civilian court? The government hasn’t yet said. And will some people be held in military custody indefinitely without trial? The administration hasn’t said that yet, either. So to some extent, the speculation is premature.

What Richey does make clear in his story, however, is that there are some rights that the government will be hard-pressed to argue don’t apply to prisoners on U.S. soil, even if they may not have applied to them at Guantanamo Bay. Those include the Fifth-Amendment right to due process of law, for example, which the government argues doesn’t apply in Cuba. As I’ve explained before, however, what rights the detainees have at the prison in Cuba has never really been decided.

Some defense lawyers even worry, as Richey reports, that their clients will get worse treatment in a beyond-Supermax facility in Illinois than they do at Guantanamo, where the international focus on previous mistreatment has forced improvements.

The fears of Mitch McConnell and his fellow Republicans notwithstanding, exactly what rights any military detainee in Illinois is going to get will depend a whole lot on the status the government gives them when they’re transferred. And for now, the Obama administration hasn’t yet told us what that will be.

View the details of all Guantanamo detainees’ habeas corpus cases at TWI’s Gitmo Habeas Scoreboard.

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.

That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

As I’ve noted before, the vast majority of legal experts, including leading defense lawyers and many former prosecutors, appear to believe that suspected terrorists can be tried more successfully in regular civilian federal courts — which have prosecuted hundreds such cases since the 9/11 terror attacks, as opposed to just three convictions in eight years of military commissions. Still, the Obama administration and Congress have refused to let the commissions go. And while yesterday’s bill appears to make some improvements to their rules — such as ensuring that the military commissions actually have defense lawyers qualified to handle death-penalty cases, which they didn’t before — the commissions would still allow the admission of hearsay and coerced testimony so long as the judge thinks it’s reliable. It also allows for military trials of children.

Human rights advocates maintain that the whole process of trying people outside the normal justice system is illegitimate and counterproductive. As Human Rights Watch Terrorism and Counterterrorism Program director Joanne Mariner said yesterday: “Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.”

Chris Anders, Senior Legislative Counsel for the ACLU, put it this way:

While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.

Part of the problem is that even if the military commissions were fair to defendants, critics say that because of their tainted history — which includes the resignation of several prosecutors in protest — they won’t be perceived as fair to the rest of the world. What’s more, defense lawyers representing the detainees will likely challenge the courts’ constitutionality, delaying the resolution of these cases for many more years to come.

Supreme Court (WDCpix)

In announcing on Wednesday that it would review a case that asks whether individuals have a fundamental right to bear arms under the U.S. Constitution, the Supreme Court did more than just step into a heated debate over gun control. Although McDonald v. City of Chicago is on its face about Chicago’s ban on handguns, legal experts say it also raises a far broader question of constitutional interpretation that bears on how and whether the Constitution protects a wide range of rights from state infringement. A finding that the Second Amendment protects individuals’ right to own a gun could therefore have the unexpected outcome of also providing more solid ground for recognition of the right to abortion, to sexual privacy, to gay marriage, and to a wide variety of other rights that conservative justices on the court and “originalist” constitutional scholars have long opposed.

The issue in the Chicago case, as defined in the petition to the court, is “[w]hether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

Illustration by: Matt Mahurin

The court’s decision to take the case and consider whether the Second Amendment might be “incorporated” – applicable to the states – by the “privileges or immunities clause” of the Fourteenth Amendment suggests that the court is open to reconsidering a long line of cases dating back to 1873 that read that clause narrowly and thereby restricted the ability of the Fourteenth Amendment to protect fundamental rights. Although the Supreme Court has acknowledged many rights under the Fourteenth Amendment since then, it has done so based on the more tenuous argument that they’re protected by the more limited “due process” clause, which says that the State shall not “deprive any person of life, liberty, or property, without due process of law”. Lawyers and judges have at times resorted to complicated legal gymnastics to make the argument that a newly-recognized right falls under “substantive due process.”

That argument has left those rights vulnerable to an increasingly aggressive attack by conservatives who claim judges are engaging in “judicial activism” by recognizing rights not specifically enumerated in the Constitution. The “privileges and immunities clause”, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has the potential to be read much more broadly.

The Privileges or Immunities Clause “was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the ‘unalienable rights’ to which the Declaration referred,” argues David Gans, Director of the Constitutional Accountability Center’s Human Rights, Civil Rights & Citizenship Program in a post at Balkinization.

Scholars from across the political spectrum appear to agree with him, and many joined in a brief submitted to the court in this case urging the justices to reverse the court’s longstanding precedent. In a “friend-of-the-court” brief drafted by the Constitutional Accountability Center, six constitutional law professors urged the Supreme Court to review the Chicago case and restore the original meaning of the Fourteenth Amendment, as protecting all “privileges and immunities” not enumerated in the Constitution.

“In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights,” says the brief. “These were core rights of personal liberty and personal security that belong to ‘citizens of all free governments;’ it did not matter that they were not enumerated elsewhere in the Constitution.”

The libertarian Cato Institute and Institute for Justice similarly wrote in an amicus brief to the court: “the issue of the Second Amendment’s ‘incorporation’ implicates not only the right to keep and bear arms – important enough by itself – but the larger debate over the origin, nature, and extent of all our natural rights and how the Constitution protects them.”

While the language of the privileges and immunities clause seems clear, shortly after its adoption, in 1873, in a set of cases known as the Slaughterhouse Cases (affirming Louisiana’s right to regulate slaughterhouses), the Supreme Court narrowly read the Fourteenth Amendment to protect only “privileges or immunities” conferred by federal citizenship, not by state citizenship. It specifically did not limit the state’s police powers, the court ruled. The effect of that ruling was to gut the “privileges or immunities” clause, scholars have argued, and it’s led to serious questions and confusion over when and how states can regulate rights that are thought to be fundamental but are neither specifically conferred by the federal government nor mentioned in the constitution — often called “unenumerated” rights.

Whether the constitution protects such unenumerated rights remains one of the most hotly-debated matters of constitutional interpretation, and has sharply divided the conservative and liberal wings on the court. Justice Antonin Scalia, for example, has long criticized the notion that rights such as the right to an abortion or to privacy deserves protection by the U.S. Constitution. Although the Supreme Court has recognized some of these rights, based on its interpretation of the “due process clause” of the 14th Amendment, those cases have been increasingly attacked by the conservative members of the court, and by conservative scholars, as not being grounded in the original text of the Constitution.

“You have this assault on Roe [v. Wade] from the Right, claims of judicial activism from the right, saying judges shouldn’t be doing this,” explained Doug Kendall, President of the Constitutional Accountability Center. “There’s been an aggressive assault on the entire idea that there is incorporation and that judges should have a role in protecting liberties,” said Kendall, who organized the law professors’ submission of their amicus brief. “That’s fueled the conservative rise over the last 30 years in the courts.” In response, “there’s been a flowering of scholarship that goes back to the original debates and makes an overwhelming, compelling case for the proposition that the privileges or immunities clause was intended to protect a robust set of human and civil rights.”

Constitutional scholars ranging from Akhil Reed Amar, a liberal law professor at Yale Law School, to Randy Barnett, a conservative libertarian at Georgetown University Law School, have argued in books and articles that the “privileges or immunities clause” means what it says – that the states cannot infringe on a broad range of unenumerated civil rights of citizens. As the constitutional law professors write in their brief to the Supreme Court, “the Slaughterhouse cases read the Privileges or Immunities clause so narrowly as to essentially read it out of the Amendment,” but as Amar wrote in a 2001 Yale Law Review article the brief cites: “[v]irtually no serious modern scholar – left, right and center – thinks that this is a plausible reading of the Amendment.”

Of course, if the court does decide to breathe new life into the privileges or immunities clause, it will ignite a new debate about what those rights are. But their defenders argue those rights are vast. The Ninth Amendment specifically says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The privileges and immunities clause of the 14th Amendment, the constitutional scholars argue in their brief, “is the textual hook in the Fourteenth Amendment for protection of unenumerated fundamental rights, as well those substantive fundamental rights articulated in the Bill of Rights, including the Second Amendment right to keep and bear arms.”

The law professors quote the 1866 report of the Joint Committee on Reconstruction, which interpreted the Privileges or Immunities Clause to “afford broad protections to substantive liberty, encompassing all ‘fundamental’ rights enjoyed by ‘citizens of all free Governments’: ‘protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole.’“

Because the Fourteenth Amendment was focused on giving newly freed slaves the rights of citizens, says Kendall, it focused on protecting “the rights of heart and home. Your ability to control your family, your children’s education, reproductive choice and sexual intimacy.”

Not that everyone agrees with that view. A group of legal historians, for instance, filed a brief with the Seventh Circuit Court of Appeals in the McDonald case arguing that Congress’s intent in passing the Fourteenth Amendment was unclear. But until now, the Supreme Court has never agreed to hear a case that directly raised this issue.

Even if the court wants to find that the Second Amendment’s right to bear arms applies to the states, it might still sidestep the broader issue raised by this case and avoid overturning more than a hundred years’ worth of precedent. Liberals have invoked the due process clause of the Fourteenth Amendment to argue for other fundamental rights, and the court could find the right to bear arms is similarly protected by the due process clause, rather than by the privileges and immunities clause. But even that would be a victory of sort for progressives, Kendall said.

“It would force Justice Scalia to utilize substantive due process” — an idea he has long criticized in the context of abortion and other controversial rights –  “to achieve the results he wants in the guns case,” said Kendall. “As long as the court finds incorporation” — that the Bill of Rights applies against the states — “it will provide a basis for undercutting Justice Scalia’s argument against it.”

For some conservatives, then, winning the right to carry a gun could turn out to by a Pyrrhic victory.

The American Civil Liberties Union of Ohio had filed the lawsuit in November 2008 on behalf of an Ohio-based charity called KindHearts for Charitable Humanitarian Development, Inc., after the Treasury Department froze the group’s assets without notice, a warrant or a hearing. The Treasury Department claimed that it was investigating whether Kindhearts should be deemed a “specially designated global terrorist.”

The court ruled yesterday that the government first has to show a judge that there’s probably cause to believe the group supports terrorism, before Treasury can immobilize the group’s funds.

“This historic ruling rejects the government’s argument that the Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply when a case raises national security and foreign policy concerns,” said Hina Shamsi, the ACLU lawyer who argued the case to the court, in a statement released today. “The ruling provides a much-needed judicial check on executive power. Until now, the administration has been able to unilaterally and indefinitely freeze the assets of a U.S. corporation without probable cause and a warrant.”

In fact, KindHearts has still never been found to have done anything wrong and was never designated a terrorist organization, though it was effectively shuttered when the Treasury Department froze its assets. That move made it a crime for anyone to do business with KindHearts, which in any event couldn’t access its own property or funding.

In Tuesday’s ruling, U.S. District Judge James Carr of the Northern District of Ohio ruled that the administration must obtain a warrant based on probable cause before seizing an organization’s assets, noting that the executive branch’s “domestic actions – even when taken in the name of national security – must comport with the Fourth Amendment.”

Among the many legal terms mentioned over the last four days of Supreme Court nominee Sonia Sotomayor’s confirmation hearings, the term “incorporation,” when it comes to the Second Amendment right to bear arms, is probably the most confusing.

Incorporation in this context refers to whether the Bill of Rights applies to the states, as opposed to just the federal government — that is, are these rights incorporated by the Due Process Clause of the Fourteenth Amendment, because they are considered “fundamental to a scheme of ordered liberty,” as the Supreme Court has put it. The First Amendment rights to free speech and exercise of religion, for example, have been incorporated.

But the Bill of Rights has been “incorporated” to the states on a case-by-case basis, and the Supreme Court has never ruled on whether the right to bear arms enumerated in the Second Amendment is a “fundamental” right such that it should apply to the states. In fact, for years it wasn’t even clear that it was an “individual” right as opposed to the right of a state to maintain a militia, for example. Then, last year in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment does guarantee an “individual right” to gun possession, at least in one’s home.

This is why some Republicans at the Sotomayor hearings have focused so many of their questions on whether she sees the right to bear arms as a “fundamental right” and whether it applies to the states.

In the one relevant case she has ruled on, Maloney v. Cuomo, Sotomayor and two of her colleagues on the Second Circuit Court of Appeals ruled that it’s not “fundamental,” in that sense. But they argued — and she has now argued repeatedly during her confirmation hearings — that the current state of the law required that conclusion. Whether it did or not, though, remains controversial, given that the three-judge panel relied largely on a case from the 19th century that found the Second Amendment does not apply to the states. That was before the Supreme Court started ruling in a series of cases that the Fourteenth Amendment “incorporates” portions of the Bill of Rights, making them applicable to the states.

Because the Supreme Court had never revisited the question with regard to the Second Amendment, the Second Circuit — and Judge Sotomayor — argued that the 1886 case of Presser v. Illinois still stands, and that according to another Supreme Court case about the role of Courts of Appeals, they had to follow it. Other courts have agreed (pdf). In fact, the Seventh Circuit recently explicitly followed the Second Circuit’s lead on the issue, saying that “if a court of appeals could disregard a decision by the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.”

Critics who believe the Second Amendment should apply to the states, however, argue that Sotomayor and her colleagues, who addressed the issue in a short per curiam (unsigned) opinion, failed to adequately address whether under the Supreme Court’s due process analysis, gun ownership is a “fundamental right” and therefore applies to the states.

The National Rifle Association earlier today issued a statement opposing Sotomayor’s confirmation.

A New York lawyer and owner of nunchucks — a weapons used in martial arts that is prohibited by the New York law that was upheld by Sotomayor and her colleagues in the case Maloney v. Cuomo — has asked the high court to use his case to decide the issue once and for all.

Concluding that this is a matter for state legislatures, not the federal courts, to decide, Chief Justice John Roberts wrote in District Attorney’s Office v. Osborne that the Supreme Court is “reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.”

Even as the majority acknowledged the critical new role that DNA evidence can play in the criminal justice system — the test “has exonerated wrongly convicted people, and has confirmed the convictions of many others” — the court ruled that it’s still not, as the imprisoned defendant had claimed, a matter of due process rights guaranteed under the U.S. Constitution, but rather a procedural matter for states to decide how they want to handle the evidence and interpret their statutes regarding post-conviction relief.

In a scathing dissent, Justice John Paul Stevens — joined (again) by Justices Ginsburg, Breyer and Souter (in part) — wrote that the majority had misinterpreted both the facts and the law.

The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government,” Stevens wrote. Noting that “nearly all the States have now recognized some postconviction right to DNA evidence,” and that prosecutors are required to turn over exculpatory evidence, it is “appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.” Given that the evidence would absolutely prove Osborne’s guilt or innocence, Stevens wrote, Alaska’s refusal to provide it was “arbitrary” and a denial of the federal constitutional right of due process.

Because the Supreme Court had long similarly refused to acknowledge a right to counsel for the indigent in criminal cases by saying it was a matter of state procedure rather than due process, the dissenting justices argued that it was time to recognize a limited right to DNA evidence.

“Osborne has demonstrated a constitutionally protected right to due process which the State of Alaska thus far has not vindicated and which this Court is both empowered and obliged to safeguard. On the record before us, there is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done inthis case.”

Holder also wouldn’t speculate as to how many people — if any — may fall into that category, though he reiterated that President Obama has maintained that he has that right to detain such “dangerous” people.

“We’re going to have ideas” about how to decide who to detain indefinitely and what sort of legal process they’re due, “but we want to interact with members of the committee so it has the support of Congress,” Holder said.

Obama’s plan for “preventive” indefinite detention for some detainees “who cannot be prosecuted yet who pose a clear danger to the American people,” as he described in in a May 21 speech at the National Archives, remains a point of contention in Congress and among many legal experts and civil liberties advocates.

This morning’s hearings made clear that the controversy over the use of “preventive detention” to indefinitely imprison detainees in the “war on terror” that the administration believes cannot be charged is far from over.

So how do you determine what “shocks the conscience”? Whose conscience applies? Steven Bradbury’s? John Yoo’s? Yours or mine?

Not surprisingly, the memo says that there is no specific test for shocking the conscience, but that the case law is best read to require a determination of whether the conduct “is arbitrary in a constitutional sense” and involves conduct “intended to injure in some way unjustifiable by any government interest,” quoting a 1998 Supreme Court case, County of Sacramento v. Lewis.

So if the executive believes it has an interest in causing the injury, and CIA officers aren’t doing this simply for their own sadistic pleasure, that means it’s okay?

The most brutal torture is almost always undertaken for some purpose — usually to extract information — rather than purely out of sadism. Does that make it legal?

In its memo, the Office of Legal Counsel seems to say that it does:

Given that the CIA interrogation program is carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot ‘be said to shock the contemporary conscience’ when considered in light of “traditional executive behavior” and “contemporary practice.”

I don’t know about you, but the techniques described in these memos — repeated waterboarding (drowning); stress positions; slamming a prisoner’s head repeatedly against a wall by the collar; 180 hours straight of sleep deprivation while on a “calorie-restricted diet” and in shackles; and being locked in a tiny “confinement box” with insects crawling around — that shocks my conscience.

Anyone else?