dissenting:
For the past 200 years we have struggled and anguished over the concept of due process. There is general unanimity among judges as to when the Due Process Clause of the fifth amendment is violated and when it is not. However, there are also some cases that tax our minds and result in reasoned disagreement. This is such a case. Today, the majority holds that because Doherty’s detention results from “a proper exercise of [the Attorney General’s] discretion,” Doherty’s fifth amendment right to due process has not been violated. Because I cannot agree with this conclusion, I must respectfully dissent.
During the past eight years, Doherty— who has never been charged with any crime in the United States — has been incarcerated at the Metropolitan Correctional Center in New York City. He has remained incarcerated while a seemingly endless series of proceedings and appeals have been conducted to determine whether and to where Doherty should be deported.
Upon Doherty’s arrest in 1983, the government initiated both deportation and extradition proceedings against him. At Doherty’s request, the government stayed the deportation proceedings until the matter of his extradition was concluded. In December 1984, a district judge hearing the extradition matter determined that the crimes for which Great Britain sought Do-herty’s extradition were “political offenses” within the meaning of the extradition treaty between the United States and Great Britain and were therefore non-extraditable offenses. Accordingly, Great *213Britain’s extradition request was denied. Although decisions regarding extradition are non-appealable, the government, in an attempt to overturn this decision, filed a motion for a declaratory judgment of extradition. While it was surely legal for the government to file such a motion, a declaratory judgment had never before been used to contest an extradition decision. This motion was ultimately denied by both a district judge and this Court. In some respect, the government’s declaratory judgment motion embodied the general litigation posture that the government assumed in this case — once dissatisfied with the result of a decision in Doherty’s favor, the government attempted to use an extraordinary, but legitimate, tool to obtain the result it was seeking.
After the declaratory judgment motion was denied, deportation proceedings were subsequently reopened. Seeking to end his confinement, Doherty requested that he be deported to the Republic of Ireland pursuant to 8 U.S.C. § 1253(a). In response, the government contested Doherty’s choice of the Republic of Ireland, claiming that deportation to any destination other than Great Britain would be prejudicial to American interests. Taking this general stance, the government appealed a number of decisions which would have allowed Doherty to be deported to the Republic of Ireland. For example, after the Board of Immigration Appeals issued its final decision that Doherty could be deported to the Republic of Ireland, the government exercised its right to appeal this decision to the Attorney General — such an appeal is almost never taken. Once again, the government went to extraordinary lengths to preclude Doherty from being deported to the country of his choice. While I do not intend to suggest that the government’s actions were the sole cause of Doherty’s extended confinement — indeed Doherty can also be described as litigious — or that the government does not have a right to pursue its appeals to the highest level — as does' Do-herty — it does appear that in this case the government has engaged in protracted litigation in an attempt to achieve through deportation what it could not through extradition — Doherty’s return to Great Britain.
To my mind, Doherty’s case presents the archetypical situation that the Due Process Clause was designed to protect against.
[T]he Due Process Clause embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due process is that which comports with the deepest notions of what is fair and right and just.
Solesbee v. Balkom, 339 U.S. 9, 16, 70 S.Ct. 457, 461, 94 L.Ed. 604 (1950) (Frankfurter, J., dissenting). It is fundamental to our conception of liberty that an individual who is not accused or convicted of a crime in this country may not be held indefinitely by the State, regardless of his or her immigration status. According to the majority opinion, however, Doherty may be confined until the State has exhausted all legitimate grounds for appeal. Allowing Doherty’s incarceration to continue until all litigation surrounding the deportation is concluded could theoretically result in his continued confinement for ten, twenty, or thirty years — or even the rest of his natural life. This result is unjustifiable, notwithstanding Doherty’s status as an alien.
I cannot accept the majority’s conclusion that, in the context of this case, “[governmental conduct that may be considered ‘shocking’ when it serves to deprive the life, liberty or property of a citizen may not be unconstitutional when directed at an alien.” I do find it shocking that we would allow the government to indefinitely pursue a litigation strategy, which was essentially designed to circumvent an extradition decision, at the expense of an individual’s right to liberty. At some time, the government’s legitimate appeals impinge on the individual’s rights to such an extent that the Due Process Clause requires us to say to the State — enough is enough — “Thou shalt not.” See Id. at 21, 70 S.Ct. at 463 (Frankfurter, J., dissenting); County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 1675, 114 L.Ed.2d 49 (1991) *214(Scalia, J., dissenting) (“[a]t some point, legitimate reasons for delay become illegitimate.”); cf. United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir.1986) (“at some point the length of confinement [itself] would exceed constitutional limits regardless of the circumstances.”). I believe we have reached that moment.
There seems to me to be a parallel between the rights exercised by the government and the rights exercised by Doherty. Theoretically, parallel lines never meet; however when dealing with so esoteric a concept as due process they sometimes do. In an imperceptible way they have merged. Both the government and Doherty point an accusing finger at the other as they assess blame for the length of Doherty’s incarceration. After eight years, the parallel rights so freely granted have become so intertwined that we are unable to conclude whether one party or another is responsible for the extended confinement. This cannot mean, however, that so long as the parties in the context of this case assert their respective rights in good faith — which necessarily results in delay — the initial detention may be continued ad infinitum. We are now in a position to determine that that which was once acceptable (the detention of Doherty) ought not to be tolerated, continued or countenanced.
The government nonetheless argues, and the majority seems to agree, that there is a marked difference between a civil and a criminal detention. They should be reminded of Cervantes’ admonition that it really does not make too much difference whether the rock hits the pitcher or the pitcher hits the rock — the pitcher breaks, and whether or not it is a civil confinement or a criminal confinement, it is in the end a confinement and a denial of personal liberty. Similarly, the majority spends considerable time differentiating between the procedural and substantive due process to which Doherty is entitled. In my opinion, so fundamental a right has been transgressed that it is not necessary to write separately about the distinction between procedural and substantive due process — if indeed such a distinction exists.
A point is reached when all pedagogical distinctions give way to common sense and reason and we say: enough — it is just flat out wrong to confine an individual for eight years when he has not been charged with a crime in this country and has been declared by a court of competent jurisdiction to be guilty of a “political offense.”
It is a bitter irony that in this era in which totalitarian regimes are adopting the language of freedom and looking to the United States as a model of liberty and justice, we today find it acceptable that a man who has not been charged with a crime in this country may remain incarcerated here indefinitely. I have always believed that a major difference between our Constitution and those that speak of justice in bold terms, but fail to provide it in reality, is that our Constitution provides for a judicial branch that is charged with the task of safeguarding individuals’ rights, be they citizens or not. Concededly, there is a difference between the rights of citizens as compared to those of non-citizens. The facts of this case, however, clearly transcend these differences. Ultimately, it is judges who must give substantive content to the meaning of the Constitution. Thus, I cannot in good conscience sit idly by and allow the Due Process Clause to become mere words. Because I believe that the Due Process Clause will not permit an indefinite confinement, or even the confinement for eight years, of an individual who has not been criminally charged and is merely awaiting deportation, I would reverse the judgment of the district court and remand with instructions to the court to set appropriate bail.