From Hilzoy’s post, Jose Padilla And Lowell Jacoby. As always, it’s best to read the whole thing.
rather than dwelling on the verdict, I want to focus instead on a memo (pdf) that Marty Lederman posted at Balkinization a few days ago. It’s the single most shocking document concerning this administration’s attitude towards the Constitution that I have seen thus far. It’s from Lowell Jacoby, Director of the Defense Intelligence Agency, and it is an explanation of why Jose Padilla should not be allowed access to counsel. Bear in mind that the Sixth Amendment holds that “In all criminal prosecutions, the accused shall (…) have the Assistance of Counsel for his defence.” Of course, Padilla was not at that time charged with any crime, which is why one might have thought that the Fifth Amendment might have been relevant: “No person shall be (…) deprived of life, liberty, or property, without due process of law.” Possibly there are exceptions for prisoners of war, but Padilla was arrested at O’Hare International Airport in Chicago, not in the mountains of Afghanistan.
Note the absence, in both the Fifth and Sixth Amendments, of any qualification like: “so long as it is convenient for the government to provide access to counsel”, or: “so long as no important government purpose depends on depriving a person of life, liberty, or property without due process of law.” The fact that the government has some interest or other in putting me in prison and throwing away the key cuts no ice unless they can convict me of a crime, or in some other way satisfy the due process clause. Arguing that they cannot provide me with due process because that would itself be inconvenient for them is just not an option.
One way or another, American citizens like Jose Padilla are simply not supposed to be disappeared on US soil, far from any actual battlefield, and held incommunicado. They are supposed to be granted access to counsel, charged with a crime or released, and granted a speedy trial by a jury of their peers. There are no exceptions for suspected al Qaeda members. These are rights enjoyed by completely appalling people like Jeffrey Dahmer, Ted Bundy, and Charles Manson; and by traitors like Aaron Burr and Benedict Arnold. They are granted to every United States citizen (and others, but they are not relevant here.) They, along with habeas corpus, are what prevents the government from being able to toss us in jail at will and keep us there indefinitely without having to account for its actions.
That is what is at stake here: the protections that prevent our government from acting like the Soviet Union or the Pinochet regime or any other dictatorship. These are the freedoms we allegedly cherish, and for which we allegedly fight. They are our birthright, and an inheritance we must never allow to be squandered. With that in mind, consider these words by the Director of our DIA, an official paid by our tax dollars to work for our government:
You’ll have to read her post for the rest; let’s just say that the Director’s reasoning in violating the fifth and sixth amendments for more than seven months is sickening.