The Rosetta Stone of the Detention/Interrogation Scandal

Marty Lederman

Jack's post below gets right to the heart of what is so important, so novel (for the U.S.), and scandalous, about the Administration's detention regime. Unlike in past conflicts, when the purpose of detention was incapacitation of actual combatants so that they could not fight against us, the dominant purpose of this detention regime is intelligence-gathering -- and that's something that the Administration has concluded can only be effective if the will, the human agency, of the detainees, is broken completely. As Jane Mayer reported last week, the essential objective is to reduce the detainees to a state of "learned helplessness," which "creates dread and dependency."

This explains, among other things, the breadth of the definition of who may be detained as an "enemy combatant" (going far beyond traditional combatants to include virtually anyone who might have actionable intelligence); the need for "disappearances," i.e., secret facilities not subject to oversight; the severe isolation and sensory deprivation the CSM story describes; the strenuous efforts to exclude judicial review; and the insistence on keeping secret any information about which interrogation techniques are legal.

In this respect, there is no more important public government document in this whole scandal than the Declaration filed in the Padilla case by Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency.

The Lowell Declaration explains, quite forthrightly, that the DIA's "approach to interrogation" is "largely dependent upon creating an atmosphere of dependency and trust" between the subject and the 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.

The adjective "Orwellian" is overused these days. But if anything is eligible for that appellation, it must be the Administration's repeated mantra that its detention and interrogation regime is designed to establish a relationship of "trust and dependency." That is, quite literally, right out of 1984. [UPDATE: Just to clarify what I hope was obvious: It is not the fact that the interrogators are trying to establish a relationship of trust and dependence that is so shocking -- of course that is a standard objective of many interrogations. What is jaw-dropping and Orwellian is that they apply that benign label to the system of dehumanization and legal black holes so well described in Jane Mayer's article; in the Christian Science Monitor story; in the photos we have seen of Padilla's detention; and, indeed, to the description in the Jacoby Declaration itself.]

Contrary to Jack's suggestion below, then, the Administration did not try to defend Padilla's indefinite, isolated detention -- and the denial of an attorney and of any judicial oversight -- on the ground that "the President thought that Padilla was a dangerous man." If dangerousness had been the issue, the Administration could have simply kept Padilla detained in the ordinary criminal justice system, where he had been. As Jacoby explains, the reason Padilla was moved to indefinite military detention resembling (as Jack notes) classical authoritarian models, was not dangerousness, but instead the Administration's desire to break him in order to obtain possible actionable information about al Qaeda training, planning, recruitment, methods and operations.

The most remarkable thing about the Jacoby Declaration, in my view, is not even its casual and horrific use of euphemism, but rather that it is a public document -- indeed, a document created in order to be submitted to courts in order to persuade them that such detention is lawful and, most importantly, that it is critical to place such detentions entirely outside ordinary legal process, to a netherworld without lawyers and judges (indeed, without any contact with persons outside the "relationship" of "trust and dependency"). Jacoby again:

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 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 [Department of Defense] 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 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.

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.

I, for one, found this chilling when I first saw it. Moreover, I was fairly shocked that the government was being so candid -- indeed, that the government decided to invoke this rationale affirmatively, in court submissions, as a justification not only for the indefinite, secret detention of citizens such as Padilla and Yasser Hamdi, but as part of an argument to the courts that attorneys and courts must be entirely excluded from this detention regime -- because lawyers, judges and due process are, after all, and in Jacoby's words, "external influences on the interrogation process."

The Solicitor General even placed the Jacoby Declaration in the Appendix in the Padilla/Hamdi cases, and cited it liberally in support of its argument to the Court that the Administration should be entitled to detain persons not only for purposes of incapacitation, but also for purposes of long-term interrogations.

That is why, just as the Jacoby Declaration is the single most revealing document released by the government in the conflict against al Qaeda, so, too, the single most important sentence in any of the Supreme Court's decisions in the al Qaeda cases was a stark rejection of the government's rationale -- indeed, a remarkable rebuke to the Jacoby Declaration -- in Justice O'Connor's controlling opinion in Hamdi. After explaining at length that the laws of war and the Authorization for Use of Military Force permit detention for purposes of incapacitating combatants, Justice O'Connor wrote (542 U.S. at 521):

"Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

No citation offered, because none should be needed. "Certainly."
Posted 11:32 AM by Marty Lederman [link]