From a post over at Anonymous Liberal. Presented without comment.
Updated: now with some comments.
Marty Lederman highlights a truly stunning document, a government declaration submitted to a federal court back in 2003 in defense of Jose Padilla's processless incommunicado detention. In it, Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency, argues that permitting Padilla any process whatsoever would interfere with the government's goal of convincing Padilla that he has no hope of ever being freed.
Permitting Padilla any access to counsel may substantially harm national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention: DIA' s assessments that Padilla is even more inclined to resist interrogation than most detainees. 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 time 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 DoD 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.
Of course the reason Padilla is "more attuned to the possibility of counsel intervention" is because he's a U.S. freakin' citizen who, by virtue of having been born and raised here, likely has at least a passing familiarity with the Bill of Rights. Here we have a high-level government official asserting in federal court that the government has to be able to hold this U.S. citizen incommunicado and without any process because it is the only way to break his will and crush his soul, thereby allowing the government to extract information from him (assuming he actually has any information).
As Jack Balkin put it:
If the President had his way, the government, on the basis of information that never had to be tested before any neutral magistrate, could pluck any citizen off the streets, throw them in a military prison, and proceed to drive them insane.
Those are the powers that the Bush Administration sought.
Update... comments added after all: A U.S. citizen without prior experience with the Justice system would have an expectation of assistance from counsel too, being as how -- you know -- they're a U.S. citizen. The government is arguing they must destroy the Bill of Rights in order to save it. I reject the notion that there is no way to protect the country without breaking the law. It's simply that the Bush Administration can't think of any.
One could apply this argument to literally every crime on the books; murderers, kidnappers, rapists... deny them all counsel to avoid the risk they could go free. You're protecting them American people from them after all; from the risk they may murder or rape again. What if Padilla did go free? They could tail him. Bug his phones. Revoke his passport. You know... investigate. If the Bush Administration has no other methods of obtaining information than indefinite detention and torture then why do we still have an FBI? A CIA? Might as well close them down and save ourselves some tax dollars.
It's hard not to conclude that a lot of this is simply to cover their asses though. If many sane moderates and Democrats lost their minds after 9/11 just imagine how crazy the neo-cons got. The stories are still coming out. They probably assumed a combination of three things: 1)the country wouldn't ever stop being crazy and calm down; 2)stuff like this would never get out; 3)if it did get out the anger still felt after 9/11 would justify such things.