Yesterday, Jose Padilla was found guilty:
"A federal jury convicted former "enemy combatant" Jose Padilla on Thursday of terrorism conspiracy charges, handing a courthouse victory to the Bush administration, which had originally sought to imprison him without a criminal trial.
Padilla was arrested in 2002 for allegedly plotting a radiological "dirty bomb" attack, but prosecutors chose not to pursue those allegations in court here. But after a three-month trial, they had convinced the jury that Padilla, 36, participated in a South Florida-based al-Qaeda support cell that in the '90s began to send money and people to wage holy war in Bosnia, Chechnya, Kosovo and Somalia.
Padilla and co-defendants Adham Hassoun, a Lebanese-born Palestinian, and Kifah Jayyousi, a naturalized U.S. citizen from Jordan, were found guilty of one count of conspiracy to murder, kidnap and maim overseas, an offense with a maximum penalty of life in prison. They also were convicted of one count of conspiracy to provide material support for terrorists and one count of material support for terrorists. Sentencing is set for Dec. 5."
Judging by the press reports, the evidence was weak and the jury somewhat odd ("On the last day of trial before the Fourth of July holiday, jurors arranged to dress in outfits so that each row in the jury box was its own patriotic color -- red, white or blue.") Moreover, the NYT reports this disquieting detail:
"The jurors, seven men and five women from Miami-Dade County, would not speak publicly at the courthouse and left through a side entrance. But one juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began.
“We had to be sure,” the juror said in Spanish. “We wanted to make sure we went through all the evidence. But the evidence was strong, and we all agreed on that.”"
However, rather than dwelling on the verdict, I want to focus instead on a memo (pdf) that Marty Lederman posted at Balkinization a few days ago. It's the single most shocking document concerning this administration's attitude towards the Constitution that I have seen thus far. It's from Lowell Jacoby, Director of the Defense Intelligence Agency, and it is an explanation of why Jose Padilla should not be allowed access to counsel. Bear in mind that the Sixth Amendment holds that "In all criminal prosecutions, the accused shall (...) have the Assistance of Counsel for his defence." Of course, Padilla was not at that time charged with any crime, which is why one might have thought that the Fifth Amendment might have been relevant: "No person shall be (...) deprived of life, liberty, or property, without due process of law." Possibly there are exceptions for prisoners of war, but Padilla was arrested at O’Hare International Airport in Chicago, not in the mountains of Afghanistan.
Note the absence, in both the Fifth and Sixth Amendments, of any qualification like: "so long as it is convenient for the government to provide access to counsel", or: "so long as no important government purpose depends on depriving a person of life, liberty, or property without due process of law." The fact that the government has some interest or other in putting me in prison and throwing away the key cuts no ice unless they can convict me of a crime, or in some other way satisfy the due process clause. Arguing that they cannot provide me with due process because that would itself be inconvenient for them is just not an option.
One way or another, American citizens like Jose Padilla are simply not supposed to be disappeared on US soil, far from any actual battlefield, and held incommunicado. They are supposed to be granted access to counsel, charged with a crime or released, and granted a speedy trial by a jury of their peers. There are no exceptions for suspected al Qaeda members. These are rights enjoyed by completely appalling people like Jeffrey Dahmer, Ted Bundy, and Charles Manson; and by traitors like Aaron Burr and Benedict Arnold. They are granted to every United States citizen (and others, but they are not relevant here.) They, along with habeas corpus, are what prevents the government from being able to toss us in jail at will and keep us there indefinitely without having to account for its actions.
That is what is at stake here: the protections that prevent our government from acting like the Soviet Union or the Pinochet regime or any other dictatorship. These are the freedoms we allegedly cherish, and for which we allegedly fight. They are our birthright, and an inheritance we must never allow to be squandered. With that in mind, consider these words by the Director of our DIA, an official paid by our tax dollars to work for our government:
"DIA's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.
Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example -- even if only for a limited duration or for a specific purpose -- can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process. (...)
Permitting Padilla any access to counsel may substantially harm our 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 assessment is 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.
At a minimum, Padilla might delay providing information until he believes that his judicial avenues have been exhausted. Given the nature of his case, his prior experience in the criminal justice system, and the length of time that has already elapsed since his detention, Padilla might reasonably expect that his judicial avenues of relief may not be exhausted for many months or years. Moreover, Padilla might harbor the belief that his counsel would be available to assist him at any point and that seven months is not an unprecedented for him to be without access to counsel.
Any such delay in Padilla's case risks that plans for future attacks will go undetected during that period, and that whatever information Padilla may eventually provide will be outdated and more difficult to corroborate.
Additionally, permitting Padilla's counsel to learn what information Padilla may have provided to interrogators, and what information the interrogators may have provided Padilla, unnecessarily risks disclosure of the intelligence sources and methods being employed in the War on Terrorism.
In summary, the United States has an urgent and critical national security need to determine what Padilla knows. Padilla may hold extremely valuable information for the short-term and long-term security of the United States. Providing Padilla access to counsel risks the loss of a critical intelligence resource, and could affect our ability to detain other high value terrorist targets and to disrupt and prevent additional terrorist attacks."
Marty Lederman glosses this correctly:
"In other words, legal process must be entirely denied Padilla so that he will come to think that all hope is lost -- that he is in a world without law or due process. As long as he even thinks that he is subject to the Constitution and laws of the United States, the "relationship" of "trust and dependency" is broken."
When this document was written, the government had already held Jose Padilla incommunicado for seven months. They had already had more time than they should have to produce that "atmosphere of dependency and trust" that Director Jacoby thinks is so important. Moreover, whatever information he might have had was surely becoming dated. So even if one thought that government interests were appropriately weighed against some of the most important freedoms protected by the Bill of Rights, those interests had become attenuated by the time Jacoby wrote this.
But that is beside the point. The most basic freedoms we have, which surely include the freedom not to be thrown in jail without charge, deprived of counsel, and left there indefinitely, should not be bargained away for any government interest. There are limits to what the government can do to us because it decides that something is important, and this is one of them.
This is one more direct assault by this administration on our Constitution and our freedom. It is shocking that a government official could write this document, and shocking that it has not produced anything like the outrage it deserves.
Jose Padilla has been convicted of a crime. But for my money, Lowell Jacoby and those who think as he does are the greater threats to our country.