Balkinization  

Thursday, June 03, 2004

Justice Department: Constitution? We Don't Need Your Stinking Constitution

JB

In a news conference on Tuesday, the Justice Department offered evidence that Jose Padilla, whom it has held in a military prison for two years, is a dangerous terrorist. This evidence, they argue, justifies their unprecedented violation of the constitutional rights of an American citizen. Justice Department officials stated that Padilla had confessed to meetings with Al Qaeda operatives and that he had planned to blow up apartment buildings by leaking natural gas and setting it on fire.

Of course, the word "confessed" has to be used advisedly here. These are merely the second hand reports of Justice Department officials who desperately need to justify their actions before an increasingly skeptical public. Padilla has never been allowed to speak for himself. Moreover, he has been held in solitary confinement and subjected to repeated interrogations for two years without being able to meet with a lawyer for most of this period. (He was allowed to meet with a lawyer for the first time in the past few months). That is to say, Padilla has been denied all of the basic protections that the Bill of Rights affords citizens of the United States, which are designed to prevent overreaching by overzealous government officials. Remember, even Terry Nichols and Timothy McVeigh, who masterminded the Oklahoma City bombing, were given the protections of the Bill of Rights. Jose Padilla should receive no less.

Let me state once again that I have no reason to doubt that Padilla is a bad fellow. He is, by all accounts, a street tough who got caught up in radical Islamic movements. But we really have no idea whether what the Justice Department is telling us is true or has been spun and stretched to justify their actions. We do not know whether Padilla really said what he is supposed to have said, and, perhaps more importantly, we do not know whether he was coerced into saying it.

Coerced into saying it, you ask? My goodness, we are Americans! We do not torture or coerce persons in our custody. Unfortunately, we have learned, much to our dismay, that our government has repeatedly employed coercive tactics, up to and including actual torture, against people it thinks may have information relevant to its continuing War on Terror. The evidence has come in from Guantanamo Bay, from Afghanistan, and most recently from Iraq.

Given these precedents, the trust we would like to afford government officials who, after all, are seeking to protect us, has been fatally undermined. What reason do we have to believe, given the information about prisoner abuse and torture that has recently come to light, that Jose Padilla has not been subjected to coercive interrogation techniques that violate not only international human rights agreements but also our own Bill of Rights? None whatsoever. And that is why what the Justice Department says to justify its violation of Padilla's rights is worthless. The government asks us to trust them. But it has destroyed the very basis of that trust.

The Justice Department admits that if it had given Padilla his rights, he would have obtained a lawyer and been free from its two year regimen of interrogations and solitary confinement. Had Padilla been given the rights that every American citizen is born with under our Constitution, Deputy Attorney General James Comey remarked, "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, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope -- pray, really -- that we didn't lose him."

In other words, Comey admitted that the government did not have sufficient evidence to charge Padilla with a crime and keep him in custody. He would be a free man. But of course, that's what citizens of this country who are not charged with any crime are supposed to be in this country. Free.

Imagine that this had happened to you. Or to someone you love. Suppose that in the middle of the night the government had taken you and held you incommunicado in a military prison and coerced statements from you in violation of your constitutional rights. "But they would never do that to me," you respond. "I haven't done anything wrong." But the government doesn't know that. They think you are an enemy of the state. And so they keep you in prison until you say something they want to hear. And then they hold a press conference in which they use your words to demonstrate that they were justified in holding you in the first place. "But our government would never do such a thing," you protest. "We're the good guys. We don't make mistakes. We don't imprison innocent people. We don't spin the facts. We can be TRUSTED." Indeed. But the reason we are the good guys is that we believe in the Rule of Law and the Bill of Rights. Once we abandon those protections, we begin to resemble the very things we are fighting against.



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