Executive Deference and the CIA’s "Black Sites"

Since a couple of previous posts on Judge Alito generally mentioned the topic of deference to the executive, it is useful to keep in mind that such deference, even in issues relating to foreign affairs and national security, is not always a good thing. Consider the ongoing legal struggles having to do with national security, individual rights, and the ability of the executive to unilaterally make unreviewable decisions regarding how the balance should be struck. To put it bluntly: unilateral unreviewable decisions as to the ability to torture. This is the story, as told in the current issue of the Washington Post, and in the excerpt below from CNN, of the CIA’s international network of detention/torture areas known as “black sites.”

CNN reports that:

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held.

Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long…

To [acknowledge the existence of the sites], officials familiar with the program told the Post, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad…

[The concerns of human rights groups and lawmakers] escalated last month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress to exempt CIA employees from legislation already endorsed by 90 senators that would bar cruel and degrading treatment of any prisoner in U.S. custody.

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency’s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay.

Claims of deference to the executive is one thing, demands of prostration to the executive are another. Whoever becomes the next Associate Justice on the Supreme Court (as well as those already on the Court) will hopefully understand the difference.