Lawyers Keep out. (Comment)

By Cole, David | The Nation, April 21, 2003 | Go to article overview

Lawyers Keep out. (Comment)


Cole, David, The Nation


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 Jose 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. …

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