Balkinization: Will The Threads Start To Unravel?

Will The Threads Start To Unravel?

This New York Times article confirms something I suspected as soon as Padilla's indictment was announced. The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation.

The decision not to charge [Padilla] criminally in connection with the more far-ranging bomb plots was prompted by the conclusion that Mr. Mohammed and Mr. Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said.
. . . .
In an interview on Wednesday, a British lawyer for another man accused by the United States of working as Mr. Padilla's accomplice in the bomb plot also accused American officials of working to extract a confession. The lawyer said the United States had transferred the man to Morocco from Pakistan, where he was captured in 2002, in an effort to have him to sign a confession implicating himself and Mr. Padilla.
"They took him to Morocco to be tortured," said Clive A. Stafford Smith, the lawyer for the suspect, Binyan Mohammed. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla."

Not to belabor the obvious, but information obtained by torture has two significant defects. First, it won't stand up in court because it's unreliable. Second it violates basic human rights, and that's an important reason why our constitutional system doesn't allow such practices in the first place.

It seems that the Administration's decision to flout the Constitution and the rule of law has come home to roost. The Administration assumed all along that it was entitled to do whatever it wanted, and that no one should object, because, after all, it was fighting evil. But the best way to fight evil is not to do evil yourself.

And what about Padilla's own treatment while in military custody?

[P]art of the bombing accusations hinged on incriminating statements that officials say Mr. Padilla made after he was in military custody - and had been denied access to a lawyer.
"There's no way you could use what he said in military custody against him," a former senior government official said.

What I'd like to know is whether Padilla will be permitted to talk about what we did to him in the military prison. One assumes (or at the very least one hopes) that it did not rise (or sink) to the level of "enhanced" interrogation techniques the CIA has been using. Perhaps the very fact that the Bush Administration is willing to allow Padilla his day in court means that they did nothing more than question him without a lawyer present. But it will certainly be interesting to learn what interrogation techniques the Administration was willing to employ on an American citizen held in South Carolina over the course of three year's time. And it will be interesting to see whether and how the Administration attempts to keep information about what it did to Padilla from the public.

Statements in the district court litigation in New York suggest that Padilla was subjected to psychological techniques designed to break him; indeed, the Administration initially argued that he could not be given a right to see an attorney precisely because it would undermine the effectiveness of those techniques. See Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 46, 50 (SDNY 2003). If so, it is worth knowing what sort of techniques were used.

Are the threads of the Administration's coverup starting to unravel? Stay tuned.

Posted 8:31 AM by JB [link]