Can we reconcile the war on terrorism with the U.S. Constitution?
My gut tells me that Jose Padilla
, the alleged "dirty bomber" being held as an unlawful enemy combatant, is probably a bad person. He may be guilty of various crimes ranging from conspiracy
to provision of material support to terrorism
. However, I am not yet convinced that the exigencies of his case warrant the treatment he has been given by the Justice Department and Pentagon with the endorsement of the White House.
Yesterday, the Justice Department announced
that it had the goods
on Mr. Padilla in a big way. In addition to his planned mission of detonating a radiological dispersal device ("RDD" or "dirty bomb") in a major U.S. city, Mr. Padilla was to bomb apartment buildings by turning natural gas lines and sealed apartments into improvised explosive devices. How did the Justice Department learn of this information? Simple — it questioned Mr. Padilla until he told them.
Officials disclosed for the first time that Mr. Padilla, a former Chicago gang member accused of becoming an operative for Al Qaeda, had cooperated extensively with American interrogators after his capture in May 2002. While the broad outline of the accusations against Mr. Padilla has been known for two years, the declassified documents provided new details about plots to detonate a radiological "dirty bomb" or blow up an apartment building, perhaps in New York City.
"We now know much of what Jose Padilla knows, and what we have learned confirms that the president of the United States made that right call and that that call saved lives," James B. Comey, the deputy attorney general, said in releasing the declassified documents.
* * *
Mr. Comey said that had the Bush administration brought criminal charges against Mr. Padilla in the beginning, rather than jailing him as an enemy combatant, it might never have found out about his plotting.
"He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right," Mr. Comey said. "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."
An AP story
quotes Mr. Comey in more detail, leaving absolutely no doubt that the means chosen in Mr. Padilla's case would not stand up in court.
"I don't believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel," Comey said.
"The questioning of Jose Padilla ... was not undertaken to try and make a criminal case against Jose Padilla. It was done to find out the truth about what he knew about al-Qaida and threats to the United States."
So, let's be clear here. Mr. Padilla was originally detained on a material witness warrant
in May 2002, and given access to counsel. Presumably, he then clammed up. President Bush designated
Mr. Padilla as an unlawful enemy combatant on June 9, 2002. He was then rendered to DoD custody in Charleston, South Carolina, where he has been since. It appears that Defense Department personnel (probably working with Justice Department, CIA and OGA personnel) have questioned him for the past two years in DoD custody — in the absence of counsel, a Miranda warning, or any other procedural device which might protect some of Mr. Padilla's rights under the 5th Amendment
. Now, amidst the prison scandal at Abu Ghraib and serious questions about the President's Constitutional authority to act this way, the Justice Department releases this information to basically say "Look, our extreme tactics were necessary in this case — and effective
I think we should ask ourselves if this is really true.
We don't have much in the way of corroborating evidence so far to back up these allegations. It's possible that such information is still being held closely by the Justice Department, either to protect sources and methods or to protect ongoing investigations. But historically, statements gathered with even a scintilla of coercion have been suspect. This is part of the rationale for the Confrontation Clause in the 6th Amendment
, based in part on an erroneous out-of-court statement made in the trial of Sir Walter Raleigh
. This is also the reason for the modern evidence rule
requiring indicia of reliability for the admission of a statement in these circumstances. There is a gaping lacuna in the Justice Department's statements regarding Jose Padilla — the presence of evidence which backs up what we learned through interrogation.
There is a term of art that lawyers use to refer to a evidence that can only be proven worthy of admission by referral to the questionable evidence itself: "bootstrapping". If there was ever a textbook case of bootstrapping, this is it. The only evidence against Mr. Padilla consists of intelligence gathered from the (presumptively unconstitutional) interrogation of top Al Qaeda leaders like Khalid Sheikh Mohammed, and the interrogation of Mr. Padilla himself. The only way to prove this evidence's value and reliability is by reference to other illegal evidence. (There may, of course, be FISA-derived or other secret evidence in this case that we don't know about, but DOJ hasn't said that yet.) So in the end, we're left with basically no evidence against Mr. Padilla that will stand up in court, because the key pieces of evidence were gathered in violation of the Constitution.
Ironically, good police work questioning (within the Constitution's bounds) might have been able to crack Mr. Padilla, while leaving open the possibility of a criminal trial should he eventually be charged in federal court. But of course, this evidence (gathered through admittedly unconstitutional means) is not
being used in court — it's being used to justify Mr. Padilla's continued detention without any court proceedings at all. Typically, you need probable cause to detain someone and to confine them, and that probable cause is eventually tested in court during a preliminary proceeding. Here, it appears that the probable cause is being derived from post-detention interrogations and secret interrogations of other individuals. I can't figure out which cart is before which horse, because so many things are backwards here.
But wait — it gets worse.
In case you think the only things being violated here are Mr. Padilla's 5th Amendment
rights, think again. Dahlia Lithwick reminds us in this excellent Slate essay
that there's a lot more at stake here — the 6th Amendment's confrontation clause, the Art. I, Sec. 9 right to habeas corpus, and the general rule of Art. III that the U.S. courts shall have jurisdiction over all cases and controversies arising in the United States.
The U.S. Constitution didn't simply hatch out of an egg one morning. Like the Magna Carta, the Bill of Rights was largely conceived to correct for failures of earlier systems. In 1603 Sir Walter Raleigh was tried for treason and not permitted to cross-examine his accuser. This, it turns out, engendered unreliable evidence. The Sixth Amendment's confrontation clause was the constitutional remedy for this problem. Unremitting and unwanted prosecutorial interrogation could lead to false confessions. This made for unreliable evidence. The Fifth Amendment was, in part, the constitutional remedy for this. Years of delay prior to trials degraded evidence. The Sixth Amendment's right to a speedy trial was the constitutional remedy for this. Indefinite government detention without charges led to innocent men languishing in prison without recourse. The right to habeas corpus is thus codified in Article I, Section 9 of the Constitution to remedy this. We sometimes forget that the purpose of these and other constitutional protections is not only to let guilty guys roam free (attractive though that prospect may seem), the purpose is also to protect the quality of the evidence used in criminal trials. A conviction based on a tortured confession isn't justice. It's theater.
So... what's a nation to do with enemies like this? That's a really tough question. Clearly, there is a need to detain enemy foot soldiers in order to prevent future acts of terrorism, and I'm inclined to let Justice Department officials use devices like material witness
warrants to do so if it means preventing another attack. And clearly, there is a need for questioning in order to gather intelligence about future attacks. But let's not throw away our Constitution in the process, particularly when we have developed extraordinarily sophisticated (and legal) means of interrogation that will not foreclose the possibility of a criminal trial. As the New York Times reports
: "Officials disclosed for the first time that Mr. Padilla, a former Chicago gang member accused of becoming an operative for Al Qaeda, had cooperated extensively with American interrogators after his capture in May 2002." That's not surprising — most foot soldiers do cooperate when questioned. Especially when they're squeezed by seasoned investigators who have cracked organized crime rings, drug rings, gangs, and other criminal networks formerly thought too tough for conventional (and Constitutional) police tactics.
Using extra-Constitutional tools in the Padilla case has not necessarily accomplished anything more than seasoned FBI agents and Assistant U.S. Attorneys could have done. But what it has done is create a losing dilemma for the Justice Department. In a case like this, where all of the evidence has been either tainted by torture
or tainted by poor process
, the only options are to detain Mr. Padilla indefinitely as an enemy combatant or release him onto the street. Prosecution in federal court isn't a viable option anymore in this situation. The Supreme Court may well hold the first option unconstitutional this summer, forcing the Justice Department to file charges (which will likely be dismissed for lack of admissable evidence) or release Mr. Padilla.
: My friend over at JAG Central
(now at its new location) reminds me
of DOJ's response — namely, that the 5th Amendment is inapplicable because Mr. Padilla is being held as an unlawful enemy combatant. Indeed, he's right about that. We don't extend the 5th Amendment protection to combatants being held as such; prisoners of war have rights and privileges under the 3rd Geneva Convention, but not the U.S. Constitution. This, however, is a gray area where it's not clear that the executive branch has the power to detain Mr. Padilla as an enemy combatant, or to deny him his Constitutional rights, so I'm not ready to accept that construct.
Moreover, I think the character of DOJ's comments here is important. They're releasing this information for specific reasons. Namely, I think the Justice Department is trying to establish three things in the court of public opinion:
1. "Padilla was a bad guy, and we had to detain him."
2. "Our means were effective — we detained the right guy, and our interrogations produced valuable intel to prove he was the right guy."
3. "We have enough evidence of Padilla's bad conduct that we could have prosecuted him if we wanted to."
Of these, I think that only the first statement has any legitimacy. The second is dubious, both because it's not clear these statements were accurate, and
because of the extra-legality of the means. The third is absolute bunk. We only know (in a very loose epistemological sense) these things because we used means which preclude the use of this evidence in court. And we don't really "know" them at all (in a legal sense) because they've never been tested by adversarial review or found as fact by a jury or judge.