Shostack + Friends Blog Archive


The CIA's "Prisons"

Yesterday’s Washington Post had a long, sickening article on “CIA Holds Terror Suspects in Secret Prisons:”

The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.

There’s very good analysis from Steve Vladeck at Prawfsblawg (“‘Black Sites’ (and the Questions They Should Raise for Judge Alito)“) and from Marty Lederman at Balkinization (“The CIA’s “Black Sites”: Beyond the Rule of Law?“).
I should start out by saying “what they said,” and admitting that my contribution here is a small one, but I think it important.

These sites are not prisons, and calling them prisons clouds the debate.

From the Oxford English Dictionary definition of prisoner:

1 orig. The condition of being kept in captivity or confinement; forcible
deprivation of personal liberty; imprisonment; hence, a place in which such
confinement is ensured; spec. such a place properly arranged and equipped for
the reception of persons who by legal process are committed to it for safe
custody while awaiting trial or for punishment; a jail.
a without article. Here the primary sense is that of the condition, though
the notion of a definite place of confinement is now more or less present.

The words “by legal process” are important, not only to the prisoners, but to our definition of what a prison is, as opposed to, say, a reservation, a concentration camp, a detainment center, or a kidnapper’s basement. It is precisely the due process of law which occurs in depriving someone of their liberty that makes a prison a prison, and distinguishes it from other facilities where people are held.

However broadly you may think the war powers of the President extend, it is hard to argue that the Executive is the Judiciary. Now, parts of the executive, namely the military, do have courts. As Marty Lederman has written, the Judge Advocate General corps of the military has distinguished itself in trying to preserve the dignity as solemnity of those courts, and thus their authority. The JAG has worked to ensure that the “tribunals” at Guantanamo were fair.

The CIA has not even made an attempt at a pretense towards trials for those they are holding. And thus, those held are prisoners only in the most medieval of senses. Quoting again the OED:

Sense 2, which existed
also in OFr., Ital., Sp., and med.L., appears to have arisen from a person
taken (in war) and held as a captive, being considered as a capture, prise, or

The standard that held when princes went to war to avenge insults or settle questions of territoriality is not the standard we should be using. That our government seems to deprives us all of fundamental liberties.