Because September 11 “changed everything,” it hasn’t always been easy to find an objective yardstick by which to judge the Bush Administration’s tactics in the “war on terrorism.” But the Administration’s latest salvo on interrogations may finally provide a measure of extremism that no one can dispute–it has actually out-Dershowitzed Alan Dershowitz.
Shortly after 9/11, Harvard law professor Alan Dershowitz made a splash by proposing “torture warrants,” by which courts would authorize the use of force to extract information in “ticking time bomb” situations. His suggestion–more rhetorical than anything else–was universally condemned. Yet in a pair of pending cases, the Administration has sought something even more extreme–blanket authority not only to use coercion but also to bar lawyers from attending interrogations, because their presence might offset the coercion.
The first case is that of José Padilla, the Brooklyn-born US citizen arrested at O’Hare Airport last May on suspicion that he was planning to detonate a radioactive “dirty bomb.” He has been held incommunicado for nearly ten months as an “enemy combatant.” In December a federal judge in New York City ordered the government to let Padilla talk to the lawyers who have been challenging his detention. The government objected, arguing that allowing Padilla to speak to his lawyer might interfere with its ability to coerce information from him. In short, it seeks to justify the violation of one constitutional right–the right to counsel–by arguing that it is necessary in order to commit another violation–coercing his confession. On March 11, the district court reaffirmed its decision, but two weeks later the government announced that it would appeal.
The government’s position, that detainees cannot talk to their lawyers, has produced absurd results. For about a year the federal courts and the nation have been debating the President’s power to lock up American citizens as “enemy combatants.” The dispute, arising from the detentions of Padilla and Yasser Hamdi, also a US citizen, has resulted in at least nine judicial decisions and literally thousands of news stories and editorials. Yet because Padilla and Hamdi have been barred from participating in their own cases or speaking to anyone who is, the litigation and debate have proceeded thus far without any input from the two men whose liberty is actually at stake.
The government argues that if its interrogations are to work, it must be free to develop a “relationship of trust and dependency” that leads the suspect to give up all hope and spill his guts. Fostering “dependency” and hopelessness would be necessary only where the suspect does not want to confess of his own free will. But the Supreme Court has ruled that any interrogation that obtains information by overriding a suspect’s free will is unconstitutional. It has further ruled that interrogating a suspect for thirty-six hours straight is a per se violation of due process, because any statement obtained thereafter could not possibly be a product of free will. In Padilla’s case the government seeks to block access to a lawyer so that it can continue a coercive incommunicado interrogation that has already lasted ten months.
In a second case that has received virtually no attention but may be even more important, the Justice Department has asked the Supreme Court to rule that as long as the government doesn’t use a confession in a criminal trial, the Constitution does not bar coercive interrogations. In Chavez v. Martinez, a police officer questioned Oliverio Martinez off and on for forty-five minutes while he was lying on a stretcher, having just been shot at close range in the face, back and knees by another officer. Martinez, who was blinded and paralyzed by his wounds, repeatedly cried out in pain, begged for treatment and said that he did not want to talk.
In the Supreme Court, the government argued that no constitutional rights were violated because the information obtained from Martinez was not used against him in a criminal trial. As long as its tactics do not “shock the conscience,” the government maintained, it should be free to extract information against individuals’ free will, even when national security is not at stake.
Administration supporters routinely defend government actions by proclaiming that “the Constitution is not a suicide pact.” But would it really be “suicide” to allow Padilla and Hamdi to consult with the lawyers trying to represent them, or to bar coercion as a method of interrogation? We would do well to heed the words of Senator John Stockton in 1871: “Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy.” Alan Dershowitz and John Ashcroft notwithstanding, some principles should not be sacrificed.