Balkinization  

Thursday, September 06, 2007

Améry and Jacoby

Marty Lederman

Jean Améry, on the experience of having been tortured by the Nazis in the late 1930s, from At the Mind's Limits (1964):
Not much is said when someone who has never been beaten makes the ethical and pathetic statement that upon the first blow the prisoner loses his human dignity. I must confess that I don't know exactly what that is: human dignity....I don't know if the person who is beaten by the police loses human dignity. Yet I am certain that with the very first blow that descends on him he loses something we will perhaps temporarily call 'trust in the world.'...

The expectation of help, the certainty of help, is indeed one of the fundamental experiences of human beings, and probably also of animals.... The expectation of help is as much a constitutional psychic element as is the struggle for existence. Just a moment, the mother says to her child who is moaning with pain, a hot-water bottle, a cup of tea is coming right away, we won't let you suffer so! I'll prescribe you a medicine, the doctor assures, it will help you. Even on the battlefield, the Red Cross ambulances find their way to the wounded man. In almost all situations in life where there is bodily injury there is also the expectation of help; the former is compensated by the latter. But with the first blow from a policeman's fist, against which there can be no defense and which no helping hand will ward off, a part of our life ends and it can never again be revived.
From the formal Declaration of U.S. Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency of the United States of America; January 2003:
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.
(Thanks to my colleague and co-blogger David Luban for bringing the Améry to my attention.)

Comments:

Are we really arguing that captured enemy combatants like Padilla have a human and/or legal right to the "expectation of help" in avoiding interrogation?

This comparison is useful only in its contrasts - the actual torture of Amery by physical beating in stark contrast to Padilla's simply being detained without access to a civilian attorney (as have countless other American citizens who have become enemy combatants at war with their own country).

Once again, it is critical to make the distinction between Padilla as an enemy combatant and as a civilian criminal defendant.

The enemy combatant has no right to silence, no right to an attorney to counsel him not to give intelligence and may be detained for the duration of the conflict in which he is a part. This has been the case for every enemy combatant citizen since the Civil War.

In contrast, the civilian criminal defendant has a right to silence and to an attorney and any statements obtained during interrogation as an enemy combatant in violation of those rights cannot be (and were not) used against him in a criminal trial.
 

Why would a detainee ever knowingly provide intelligence if he knew or thought that if he held out long enough, some judicial process would save him from interrogation or perhaps even free him? Their own good will?

I guess Marty envisions a system like this. Terrorist: "Mr. Interrogator, who represents the great Satan. I really hate you and all you stand for. But, you know what? Out of the goodness of my heart, praise Allah, I will freely provide you with all of the answers you desire."
 

Both Bart De Palma and humblelawstudent miss Améry’s point.

It is not a claim that everyone has a right to help (either legal or moral). Améry’s “expectation of help” is not a rights-claim or a moral argument. It is a description of something that is part of most healthy people’s psychological makeup – something that makes us feel that the world is not insane or fundamentally hostile, and which therefore allows us to get out of bed in the morning and function (the kind of thing that Holmes once called “the trick that Nature uses to keep us on the job”). Améry is offering a diagnosis of what happens to torture victims. He explains the distinctive injury of torture - which lingers after the torture stops: destruction of the torture victim’s trust in the world. Elsewhere Améry talks about the long-lasting “fearfulness” of torture victims. Another way of describing the injury, a bit shallower, more hackneyed, more clinical, and less precise than Améry, is long-term depression – the perpetual inability to take pleasure in or feel at home in the world. As one who has talked to several torture victims and several psychologists who specialize in treating them, I was struck by how accurately Améry puts his finger on what the victims suffer - yes, that is the present tense, because years after the torture it hasn’t gotten much better.

Améry talks about something else in his famous essay: the way in which torture turns the torturer into pure, non-banal evil. That too is a distinctive harm of the practice of torture.

As for humblelawstudents’ sarcasm (“Mr. Interrogator, who represents the great Satan. I really hate you and all you stand for. But, you know what? Out of the goodness of my heart, praise Allah, I will freely provide you with all of the answers you desire.”): Last year, when I talked with an experienced interrogator back from Iraq and Afghanistan, he said exactly that. He told me that it’s easy to get the ideological Al Qaeda types to talk. For a week or so, they won’t say anything because they have to “prove” to themselves that the Americans can’t break them. Then they get bored – and, precisely because they believe in their cause, they eagerly talk. (According to this interrogator, the prisoners who are hard to get information from are those who are planting IEDs merely for money. They just want to lie to get out of trouble. His method for getting information from them was to emphasize that they took all the risks while their Al Qaeda handlers are safe – in other words, get them to resent their handlers.)

Marty, one correction: Améry was tortured in the 1940s, not the 1930s – he was part of the Belgian resistance. Then they sent him to concentration camps. Améry committed suicide in 1978.
 

Thanks for this post, Marty.

Reading David's comment, part of most healthy people’s psychological makeup – something that makes us feel that the world is not insane or fundamentally hostile, and which therefore allows us to get out of bed in the morning and function, it struck me that torture victims have something in common with people who have experienced sexual or physical abuse from parents.

The analogy to victimes of police brutality and prison abuse had occurred long ago.

Power over other human beings combined with secrecy, covering-up, and averted eyes: All that's needed to allow the worst to come out.

The final fillip of cruelty is for society and government to make such degraded behavior policy.
 

Why would a detainee ever knowingly provide intelligence if he knew or thought that if he held out long enough, some judicial process would save him from interrogation or perhaps even free him? Their own good will?

This argument proves far too much. It applies to every criminal every arrested. Might as well torture them all, just to find out what future evil they're planning.

Not to mention that there's an implicit assumption of a rather significant fact, namely that the detainee actually does know something. Better to torture a hundred innocent men than to let one guilty go free. I'm sure that's a legal maxim I've heard somewhere.
 

Mark,

I'm not advocating torturing the victims and neither does the except quoted from Vice Admiral Jacoby. Mine and his argument concerns cultivating a sense of helplesness in detainees, in that a failure to cooperate will doom them to detention for a long, long time. It is an entirely seperate question from whether detainees should be tortured, so your response is completely irrelevant.
 

David Luban,

First, I fully understand Amery's point. But Amery's point is the helplessness/fearfulness that arises from a loss of faith in humanity because of being tortured. Jacoby's point concerns making the detainee think that their cause is hopeless unless they cooperate. It is Marty's attack on Jacoby's point that I was addressing.

Second, Mr. Luban, undoubtedly some of the terrorists are idiots and do reveal helpful information. I won't try to prove a negative and say it doesn't happen.

But I find it hard to believe that it is a common occurence. I especially doubt it would occur if the detainee in question knew or had reason to think they would be released quickly. The ones who do speak likely do so because (just as in criminal cases) people like to brag about their importance. I wouldn't be surprised if some of the detainees behave this way. But, undoubtedly, many if not most, of the detainees don't fall for such psychological parlor tricks, and I am confident that your interrogator friend would agree.
 

Bart repeats his assertions that Padilla, an American citizen who was accused of being a terrorist with plans to attack us with a dirty bomb or to otherwise assist in terrorist actions against us therefore loses all presumtion of "innocent until proven guilty," and therefore loses all legal rights guaranteed to him under the Constitution. Anyone can be accused by anyone of anything; our system is designed to protect us against false or insupportable accusations. I guess an accusation that one is a terrorist stands as a given immediately upon utterance, and thus the rights of the accused may be disposed of without concern, and his status as American citizen as readily replaced by one as "enemy combatant."

If I were a mobster facing trial, I might seek out a lawyer with such a provisional notion of how our system is supposed to work, but otherwise...not so much.

As for whether terrorist detainees will give up information unless we rough them up a bit, use "extreme" (sic) tactics against them...in other words, torture them, well...perhaps they will, perhaps they won't. That's immaterial; under the law, international and domestic, we may not torture prisoners, and simply as a matter of human decency, we should not. If a captive wants to clam up, that's his right, and we have no greater moral claim to beat a confession out of him.

The resident authoritarians will surely disagree, but then, they don't actually respect the rule of law anyway, do they?
 

Mine and his argument concerns cultivating a sense of helplesness in detainees, in that a failure to cooperate will doom them to detention for a long, long time. It is an entirely seperate question from whether detainees should be tortured, so your response is completely irrelevant.

In my view, creating that sense of helplessness IS a form of torture (and is likely to use more direct forms of torture in any event). Again, though, you're still assuming that the detainees actually know something. What's the point of "cultivating a sense of helplessness" in someone who doesn't know anything?
 

"Padilla, an American citizen who was accused".

Being an enemy combatant is not a criminal offense. It is not against US criminal law for a foreigner to join a foreign army that goes to war with the US. [Padilla committed Treason, but this is almost impossible to prosecute and was not charged.] It is not against the law for an enemy soldier to plan to build a bomb (dirty or otherwise). Using a radiological weapon (which Padilla only talked about) or planning to blow up a dozen high rise apartment buildings (Padilla's actual mission) might have been a war crime even for a legitimate soldier, but it is not a war crime to plan to commit a war crime, or train for a war crime, or even attempt a war crime. To be a war criminal, you have to actually do the crime.

Padilla was held as an enemy combatant. That is another word for an enemy soldier or prisoner of war. That is not a crime. Nor would talking about a dirty bomb be a crime for such a person. Padilla was not "accused" of anything while held in military custody. He was eventually indicted for things he did as a civilian before enlisting in the enemy army.

Although not criminals, 435,000 Axis prisoners of war were held in the US during WWII. Enemy combatant may be held in military custody today (Rasul, Hamdi, and Padilla v Hanft). Since they are not accused of a crime and will not be prosecuted for a crime, they are not entitled to a lawyer. Any proceedings are civil proceedings, not criminal.

The question then was whether a lawyer claiming to represent Padilla in a civil proceeding could gain access to his alleged client if that access might interfere with interrogation that was producing extremely valuable military intelligence that would directly save American lives at home and overseas.

Padilla was never tortured. He was never even struck. He was isolated. This isolation was calculated to make him dependent on his interrogators and, therefore, to produce better intelligence. If a lawyer showed up and promised to help him, that would prevent the flow of information that plausibly saved thousands of American lives.

Nor was there any rational basis for providing access to the client. No facts were being contested. The Padilla legal team was asking for summary judgement based on the claim that even if their client was an enemy combatant and would be mass murderer, that under current US law he cannot be detained by the military. Nothing Padilla could have told them would have aided them making that argument. The obvious logical impossibility of acquiring anything of legal value in the case, contrasted with the high probability of disrupting a flow of information that could save thousands of lives, should make this an obvious outcome.
 

Mark,

Creating helplessness in detainees is torture? Wow! And hear I thought liberals were actually serious in their critiques, though very misguided. I guess I was wrong.
 

Howard,

For all your effort trying to justify the detention of Juan Padilla for years while he was denied his legal rights as a citizen, you evade the point: as an American citizen, he should have been able to engage legal counsel and face those accusing him of being a terrorist, or, to make the non-distinction you do, an "enemy combatant."

Do we simply accept that he was a terrorist or so-called enemy combatant merely because the government or some other accuser says so? As a citizen, he was entitled to contest any claims made against him, just as he would had he been accused of any crime.

Oh, you took pains to point out that he had committed no "crime," as such, so therefore--I guess this was your point--he warranted no legal protections. As a result, he was confined in solitary for years without access to his lawyers.

"Nor was there any rational basis to provide access to the client."

Wow.

To quote Joseph Heller, "That's some catch, that Catch 22."

That the fix was in should be evident in that extravagant--and intentionally terrifying--claims were made about Padilla's intentions at the time of his original arrest, and yet the government never tried him for those original claims, but only for the more vague "providing material assistance to terrorists abroad," (in so many words).

As to whether Padilla was tortured or not, neither you nor I are in a position to know what treatment he was subjected to, although many would assert that imprisonment in extreme isolation for prolonged periods is torture. That may be debated, I suppose, at least by those of us who haven't experienced it, but as to whether he was beaten or waterboarded or subjected to other physical duress, that is still, as far as I know, not known.
 

Creating helplessness in detainees is torture? Wow! And hear I thought liberals were actually serious in their critiques, though very misguided. I guess I was wrong.

Then I guess you think it's ok what the SLA did to Patty Hearst or the Stockholm bank robbers to their victims. And here I thought that conservatives actually believed in moral values. I guess I was wrong.

Now that we're done with the snark, I'd be interested to hear how one creates anything other than a temporary "sense of helplessness", and moreover does so without using abusive tactics such as isolation, etc. In my view, these all qualify as torture because they involve the subjugation of another human being.
 

Typos, typos, typos:

Being an enemy combatant is not a criminal offense.

Should have been "Being labelled [or accused of being] an 'enemy combatant' is not a criminal offense."

Padilla was held as an enemy combatant.

Should have been "Padilla was held under a material witness warrant [until they needed to bury the corpse in the military brig for fear of the reach of the U.S. judicial system]."

Cheers,
 

The question then was whether a lawyer claiming to represent Padilla in a civil proceeding could gain access to his alleged client if that access might interfere with interrogation that was producing extremely valuable military intelligence that would directly save American lives at home and overseas.

Why is it relevant whether the "interrogation [] was producing extremely valuable military intelligence that would directly save American lives at home and overseas"?

Cheers,
 

"Why is it relevant?" Anyone accused of a crime has a right to a trial and a lawyer. However, if someone in the National Guard gets orders to ship overseas, he does not have a right to a trial, a free lawyer, presumption of innocence, and all the other stuff a criminal gets. The same thing is true of a captured enemy combatant (an enemy soldier, a POW). During WWII no enemy combatant filed for Habeas or appeared in court.

Now in Hamdi the Supreme Court found that someone detained as an enemy combatant who claims to be a civilian who was in the wrong place at the wrong time has a right to some sort of impartial tribunal. Exactly what form this should take is now before the DC Circuit and will then be reviewed by the Supreme Court. The key here is that this right was found by the Supreme Court to apply to those who contest their combatant status.

Padilla did not claim to be a civilian in the wrong place at the wrong time. There are thousands of hours of him telling interrogators about every moment of his service as an enemy combatant. Nor did his legal team in Padilla v Hanft claim that he wasn't an enemy combatant.

A criminal must have a judicial proceeding even if he wants to plead guilty. A detainee is entitled (per Hamdi) to a hearing if he contests his combatant status. However, there is nothing in law or previous cases that says that an enemy combatant who freely admits his combatant status and does not challenge it has any right to appear in court or consult a lawyer. Nor does Padilla's status as a US citizen automatically apply access to the courts superior to, say, the National Guard soldier.

I don't think that the courts will find that a US Traitor captured while on a mission to kill thousands of women and children in their sleep is entitled to rights as a citizen that we deny to a patriot who is being sent off to defend his country. That is why this is not some absolute thing (like the criminal's right to a lawyer) and might be subject to a balancing of benefit and harm. Any substantial national security interest should outweigh a lawyer's personal interest in making an ideological point about someone he claims to represent without ever having met or talked to him.
 

Padilla was not captured on a battlefield fighting with an enemy army, or abroad with a cohort of terrorists with plans or material in their possession that would indicate they were working to attack some target: he was arrested in America, disembarking from a flight in Chicago. There was no reason for anyone to think he was anything other than just another international traveler except for accusations lodged against him by the U.S. Government that he was a terrorist who intended to detonate a dirty bomb against a domestic target. (And they could not back up this original claim when he was finally tried; all whisper of "dirty bomb" had been excluded, proving they had no evidence to support the accusation.)

As an American citizen, he was entitled to legal representation from the start--representation he could confer with for advice, rather than representation he did not even know he had for many months and who could gain no access to him--and to all other protections afforded to each of us.

Your labored rationale, Howard, justifies that we strip any American citizen of his or her civil liberties merely upon the say so of the government: YOU could be accused of being in league with terrorists, and so you too, could be whisked away to solitary confinement, with no access to a lawyer, and no right to face your accusers.

We do not know the circumstances or duress that compelled Padilla to make self-incriminating statements, so your claims that there are "thousands of hours" of Padilla confessing to his terrorist activities, even if true--(are they?)--have no bearing. Prisoners in dictatorships throughout the world "confess" to the crimes for which they're tried and eventually punished; it is not the fact of a confession that legitimizes the government's charges or a conviction the defendant's guilt, but the integrity and transparency of the process by which the defendant's guilt (or innocence) is established. There was neither integrity nor transparency here.

No matter the tortured excuses made by you or others, Padilla's treatment should be terrifying to all Americans, as it reveals our only hope against being arbitrarily picked up and disappeared into military detention is that the government does not make accusations against us of being in league with terrorists. (Our acceptance of Padilla's treatment also leads to the frightening potentiality that one day the integrity of our entire legal system will have devolved such that ANY charges filed against us will come to be seen as de facto proof of our guilt.)

Padilla's treatment is a rape of the Constitution.
 

"We do not know the circumstances or duress that compelled Padilla to make self-incriminating statements". When an enemy soldier is captured he is not allowed under international law to remain silent. He must give name, rank, and serial number which is all that the capturing force needs to declare him to be an enemy combatant (POW). This is not a confession, because it is not criminal to be an enemy soldier. It is not self-incriminating because the Fifth Amendment only applies to criminal proceedings, not to the capture of enemy soldiers who are not criminals. We do not know the circumstances under which the 435,000 WWII POWs were captured either.

Padilla was held because (according to the government story) he was an enemy soldier captured on a military mission. The government has documents, records, his statements, and statements from others. However, the truth of the claim isn't the legal question.

Padilla was charged and convicted and now is awaiting sentencing on crimes he committed before enlisting, while he was a civilian. He was not arrested, charged, or held for things he did after he became a soldier. The fact that he was not criminally charged with things the governement is not sure were criminal when he did them does not prove or disprove that he did them.

He was held because he was an enemy combatant (soldier, POW, ...).
Not as a terrorist, although you may say that his mission was terrorism.
Not as a war criminal, although his mission would have been a war crime had he completed it.
Not as a dirty bomber although (supposedly) this was his big idea that he talked about to everyone in Afghanistan.
He was held as a soldier. The rest is legally bullshit.

The only question before the courts in Padilla v Hanft was whether he could be held as an enemy combatant, like the 435,000 prisoners during WWII or Huber Haupt, the German saboteur (non of whom planned to build a dirty bomb as far as I can remember).

Padilla was accorded no judicial process because enemy combatants, even if US citizens, are not entitled to process. If you disagree with that, then fix it. Propose some law with some alternative that makes sense for enemy combatants. You don't get to insist that the government charge Padilla with things the government doesn't think are civilian crimes, or to demand that the government make something else up because you just don't like the claim that Padilla is a soldier. That is the claim, and if you think it should be challenged, the first problem is finding a venue in which to challenge it.

If the administration went into court and said "we want you to decide if this guy is an enemy combatant" the judge would refuse because it isn't a criminal charge and no process has been authorized to make this determination. In all previous wars, the classification of enemy combatants has been an exclusively military problem.

"Padilla [Huber Haupt] was not captured on a battlefield fighting with an enemy army, or abroad with a cohort of terrorists with plans or material in their possession that would indicate they were working to attack some target: he was arrested in America, disembarking from a flight [working with his father] in Chicago. There was no reason for anyone to think he was anything other than just another international traveler except for accusations lodged against him by the U.S. Government that he was a terrorist who intended to detonate a dirty bomb against a domestic target [planning to blow up a factory making parts for the Norden bomb sight]"

You see, this is not a new legal situation. The only difference between Haupt and Padilla is that Haupt was tried by a military tribunal and executed, while Padilla was only held in custody for 3.5 years before being released to civilian criminal courts for his civilian crimes.

One solution would be to require that US citizens captured in the US as military spies and saboteurs have to be given a military trial after some period of time. That would avoid the current hole where someone who is only detained doesn't get any type of trial. Of course, if the government has to go to the trouble of trying him then they probably will have to execute him as well when he is found guilty.
 

Howard,

You're fighting a losing battle. Padilla was an American citizen arrested on American soil. To assert he was an "enemy soldier" is--until legally proven otherwise--merely an allegation, as would be the assertion he was a murderer or drug smuggler or thief.

The government never gave Padilla a chance to defend himself in court against those allegations before stripping him of his rights; the mere assertion of the allegations was deemed to be proof of their truth.

Your argument amounts to a tautology: The government says Padilla was an enemy combatant; therefore, as an enemy combatant, Padilla had no legal recourse because being an enemy combatant isn't a crime and enemy combatants don't have legal rights.

Well, maybe enemy combatants don't, but American citizens do.

How do YOU know Padilla was a so-called "enemy combatant?" Because the government says so?

"Because the government says so" is not a good enough reason for ANYTHING, EVER! The founders knew that, and anyone who sees the present administration for the malicious and pathological liars they are knows that it was never more so than now.

It was a foregone conclusion Padilla would be convicted; an acquittal would have been a grievous embarrassment to the legitimacy of this government's claims and policies. Because the process that led from Padilla's arrest to his eventual conviction lacked integrity and transparency, it is forever tainted and we must always wonder whether he was the victim of a frameup...all stemming from their original interests in inflaming public fears of nuclear terrorism on our shores, ("dirty bombs and bombers, oh my!") in order to compel public and Congressional compliance with the Administration's ongoing warcrimes abroad and violations of the Constitution domestically.
 

Howard says, in reply to my question:

"Why is it relevant?" Anyone accused of a.... [blah, blah, blah; stuff that I have other differences with, but will address later]

Ummm, how does all this answer my question, Howard? Please explain.

Cheers,
 

"The government says Padilla was an enemy combatant; therefore, as an enemy combatant, Padilla had no legal recourse because being an enemy combatant isn't a crime and enemy combatants don't have legal rights."

The initial decision to classify someone as an enemy combatant is made by the military. On the battlefield it is made by any sargent or lieutenant nearby. When an enemy combatant enters the US as a saboteur, then following the precendent layed down by FDR in 1942 the tradition is for the President to sign the classification. After the 8 Germans in 1942, Truman did this for two Germans in 45, and Bush did it for Padilla and al Marri.

Under Hamdi, a US citizen designated as an enemy combatant has a right to contest that classification before an impartial tribunal. Al Marri chose to contest the designation and was given a hearing in a US District Court, although in the end he declined to participate or offer evidence or testimony.

There is a reason why Padilla has not chosen to contest his classification. He committed two capital crimes, the civilian crime of Treason and the military crime of "crossing lines of defense out of uniform" (more commonly known as being a spy). If he contested his status as an enemy combatant, he would have to testify. While his un-Mirandized statements cannot be used against him in a criminal trial, they can be used to impeach his testimony in a civil challenge to his classification as an enemy combatant. If he says the wrong thing on the stand, that could be the confession in open court needed to convict him of Treason under the Constitution.

An accused criminal is regarded as innocent until proven guilty. An enemy soldier is neither innocent nor guilty. There is no comparable rule that someone captured by the military is regarded as a civilian until proven to be an enemy soldier.

Padilla like any US citizen has rights. However, there are circumstances where anyone can be detained by an administrative procedure first. If health officials have reason to believe he has a dangerous communicable disease, he can be quarantined first and then bring his case to court. There is no rule that you are non-contagious until proven contagious beyond a reasonable doubt in a court of law. Padilla was detained as an enemy soldier. He can contest this, but first he is held by the military.

If Padilla has a right to contest this classification, then the government also has a right to assert it. The mechanism is a Habeas proceeding in civilian court. This is not criminal Habeas. It is civil Habeas, like a hearing on a deportee, or someone committed to a mental institution, or someone held on a charge of civil contempt.

I don't say that everything the government says or does is right. I don't ask you to believe that they were right in this case. I do claim that they have a right to make their case as much as Padilla has a right to make his case. His lawyers litigated for three and a half years. It is not like he was denied access to courts. His case even went to the Supreme Court once.

If the government is holding him because he is an enemy combatant, then that is the issue and the only issue you get to litigate. You don't get to argue about the dirty bomb bullshit because that is not the question before the court. You have two choices. You can argue that he isn't an enemy combatant (which he never claimed), or you can argue that enemy combatants in this war cannot be detained by the military because Congress didn't authorize it (which was what was being claimed). You don't get to say, "well I don't like the term, so either prove that he knocked over a liquor store or let him go."

Exactly what rights he would have had if he had contested his classification will be determined when the al Marri case is first reviewed en banc by the Fourth Circuit and then, no matter how that turns out, goes to the Supreme Court.
 

[[Why is it relevant whether the "interrogation [] was producing extremely valuable military intelligence that would directly save American lives at home and overseas"?]]

A criminal defendent has an absolute right to a lawyer. A POW has no constitutional rights or rights to legal representation [though a prisoner, he remains subject to his superior officers in the camp and cannot, for example, use our courts to contest his own chain of command].

An American citizen held as a prisoner of war has no rights as a prisoner of war, but as a citizen can sue separately. [If I own some property, I can contest its property tax revaluation even though at the time I am being held as a POW.] However, access to the lawyer handling the case is subject to normal military regulation [you cannot disrupt the camp routine to achieve it].

So if a lawyer goes to a judge and wants to see his client, access is subject to a balancing of rights and restrictions, of domestic and international law, of civilian and military jurisdition, and somewhere in that mess there is the harm done by disrupting valuable military intelligence or compromising national security compared to whatever the lawyer will get from the visit.

If I want to go to New York I just get on the train. If I was in the army and assigned to a base, I don't just have the right to get on the train any more. Well if I am in an enemy army and held in a POW camp, I have even fewer rights. You can't ignore all that and just assume that the ordinary civilian rules automatically apply.
 

Howard,

I won't belabor my points any longer; I've stated my views and I stand by them. You haven't even come close to making what I consider to be a convincing argument that justifies the stripping from Padilla of his rights and of the protections guaranteed him under the Constitution, but I see that I haven't come close to getting through to you either...not that I expected to...so we'll have to leave it here.

I just wonder how sanguine you would be if someone were to accuse you or someone you love of something that resulted in your or their arrest and detention in isolation, with your or their access to legal counsel blocked, and shifting accusations made about you or them publicly to inflame public antipathy against you or them; I wonder whether your carefully-constructed justifications would appease your distress. I doubt you can even imagine yourself in that predicament, so I do not assume you will be able to consider your position from another point of view.
 

Howard:

You're still not being responsive to my question [I don't think you're mistaken about what the question was, seeing as you quoted it]. I'd appreciate it if you could address it. Thanks. What relevancy does it have that there was [arguendo] "extremely valuable military intelligence"? Do the 'rules' change under such circumstances? If so, does this 'legal theory' extend to other aspects of the law?

Cheers,
 

Point of fact:

There is no comparable rule that someone captured by the military is regarded as a civilian until proven to be an enemy soldier.

Padilla wasn't "captured by the military".

In fact, after they had transferred him to military custory after keeping him isolated for quite some time on a "material witness" warrant, the gummint gave up their bid to keep him as an "enemy combatant" in the face of a sceptical Supreme Court.

Cheers,
 

A POW has no constitutional rights...

Really?!?!? Cites for this proposition (and don't give me Ex Parte Quirin)?

... or rights to legal representation [though a prisoner, he remains subject to his superior officers in the camp and cannot, for example, use our courts to contest his own chain of command].

False. See GC3, Article 99 et seq.. Not to mention, GC3 Article 5, when referring to a "competent commission", may well implicitly require a minimum of recognised and customary legal procedure, including (I would hope) counsel or legal representation.

Cheers,
 

I have been terrorized for years for seeming sport, and I have lost trust in all people and all agencies.

There are no "good guys" and authority may and will be used against any perceived and real vulnerability. Amery expresses it accurately.

Not only is there no expectation of help, but moreover that any "help" will be a cover for retaliation and more terror and suffering.

That is induced mental illness: to create a permanent state of total distrust and isolation in the face of the human's inherent need for existence within a society.
 

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