Grim Logic

(updated)

Marty Lederman highlights a truly stunning document, a government declaration submitted to a federal court back in 2003 in defense of Jose Padilla's processless incommunicado detention. In it, Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency, argues that permitting Padilla any process whatsoever would interfere with the government's goal of convincing Padilla that he has no hope of ever being freed.

Permitting Padilla any access to counsel may substantially harm national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention: DIA' s assessments that Padilla is even more inclined to resist interrogation than most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla.

Because Padilla is likely more attuned to the possibility of counsel intervention than most detainees, I believe that any potential sign of counsel involvement would disrupt our ability to gather intelligence from Padilla. Padilla has been detained without access to counsel for seven months-since the DoD took control of him on 9 June 2002. Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break-probably irreparably-the sense of dependency and trust that the interrogators are attempting to create.

Of course the reason Padilla is "more attuned to the possibility of counsel intervention" is because he's a U.S. freakin' citizen who, by virtue of having been born and raised here, likely has at least a passing familiarity with the Bill of Rights. Here we have a high-level government official asserting in federal court that the government has to be able to hold this U.S. citizen incommunicado and without any process because it is the only way to break his will and crush his soul, thereby allowing the government to extract information from him (assuming he actually has any information).

Talk about grim logic. To me, that's like Jeffrey Dahmer arguing that he had to cut his victims' heads off because it was the only way to fit them in the freezer.

That is to say, it's an ends-justify-means argument in which the ends are as repulsive as the means.

The government should simply not be in the business of trying to destroy people's minds (much less those of U.S. citizens), which is what they did to Padilla. As Jack Balkin put it:

If the President had his way, the government, on the basis of information that never had to be tested before any neutral magistrate, could pluck any citizen off the streets, throw them in a military prison, and proceed to drive them insane.

Those are the powers that the Bush Administration sought. I will not mince words: They are the powers of a dictator in an authoritarian regime. They are the powers of the old Soviet Union, of the military junta in Argentina during the time of the disappeared.

To be sure, the President thought that Padilla was a dangerous man. But authoritarian regimes always think that the people they lock up are dangerous. They always do it to keep the country safe, to save the country from its enemies. The question is at what cost do they assume such power without accountability.

The fact that this is "the question" here in the year 2007 is depressing beyond measure. If the rule of law and the concept of due process are to have any meaning at all, these kind of powers cannot be tolerated. Not now. Not ever.

UPDATE: Dahlia Lithwick at Slate makes an excellent point about the Bush administration's cake-and-eat-it-too approach to detention policy:

Criminal vs. soldier is not a dichotomy the Bush administration accepts. It never has. This president likes to have it both ways: tending to treat terror suspects as soldiers or criminals as suits his purposes. The innovation of his lawyers has been to tack back and forth between the military and criminal law systems, thus avoiding either's constraints.

President Bush has long taken the position that criminal trials don't work when it comes to punishing terror suspects. As then-Deputy Assistant Attorney General James Comey once said of the government's decision not to charge alleged "dirty bomber" Jose Padilla in criminal court: "He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. ... He would likely have ended up a free man." But then, neither has the president been any more inclined to treat Padilla and his ilk as soldiers, who—as the Supreme Court has affirmed—would be entitled to at least basic protections under the Geneva Conventions and the laws of war. When he wants to deny someone a right to counsel, the president argues for treating him like an "unlawful enemy combatant." When he wants to interrogate a combatant in violation of the laws of war, the president insists the detainee is a criminal.