Slippery slop.

The law, lawyers, and the court.
June 2 2004 7:02 PM

Proof, Negative

The Justice Department's triumphant victory over the Constitution.

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Two years and counting

With a triumphant chorus of "We-told-you-so"s, the Justice Department unveiled yesterday a seven-page document summarizing all the accumulated evil that lurks in the heart of alleged enemy combatant Jose Padilla. Why release all this information now? The folks at Justice say they were just responding to a request from Sen. Orrin Hatch. As though Hatch's was the first and only demand for some tangible piece of evidence against Padilla. ...

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The DOJ insists that the timing of this release has nothing to do with public outrage about unsubstantiated warnings of stepped-up terror threats. They also say it has nothing to do with the Supreme Court's deliberations over Padilla's case, due to be decided this month. (Your instincts were right, Stephen Breyer, Padilla really is a bad guy!)Perhaps it also has nothing to do with mitigating the public horror about the information-at-all-costs ethos that led to the events at Abu Ghraib. (OK, so we torture them some, but just look at what they planned to do to us!)Maybe it also has nothing to do with the fact that the solicitor general's office, most likely unintentionally, misled the Supreme Court at oral argument in this case, with claims that this administration allowed no prisoners to be tortured, even as the government knew what had happened in Iraq. (OK, Ruth Bader Ginsburg, so we lied about the torture thing, but see how dangerous this guy is anyhow?)Something needed to be done to remind the world and the court how serious the case against Padilla really is.

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The question is: Does this constitute a case against Padilla? Isn't it wacky that all this evidence—released as a sop to an American public that's about had it with secrecy, abuse, and intimidation—was itself obtained through secrecy, abuse, and intimidation? You can call it the military brig in South Carolina, or call it Abu Ghraib. But evidence procured in dank rooms, by threat of interminable isolation and coercive interrogation and without the protections of the Constitution or the Geneva Conventions, is generally hard to credit. That's why we have a Constitution.

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.

In his comments accompanying the release of the Padilla document, Deputy Assistant Attorney General James Comey offered the following weird little tribute to the joys of suspending the Constitution at will: Had the government charged Padilla criminally, he said, "He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. ... He would likely have ended up a free man." Comey's point seems to be that constitutional protections produce bad evidence, in which case we should probably get rid of the Constitution in every criminal case. What he was really saying was that if you permit them to perform unconstitutional interrogations, the administration can get the accused to say exactly what we all wanted to hear.

The evidence in this document was collected during a two-year detention, in which Padilla was in solitary confinement, never charged with a crime, and only given access to his attorney this spring. Certainly his confessions might still be reliable, along with the confessions of Abu Zubaydah and other confederates being interrogated in secret. Or they might not. Without a trial we can never know, and as Phil Carter recently observed, there can now be no trial on the strength of this evidence since it was obtained unconstitutionally.

No one at the DOJ seems even to have pondered whether the public would credulously accept the truth of a document that—by its own admission—is a product of secret government interrogations. The lesson of Abu Ghraib was that we no longer trust what happens in dark dungeons, where the rule of law has been cast aside. To reassure us, the Justice Department responds with the assurance that no one there trusts what happens in the bright light of a constitutional democracy.

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