To find oneself in the situation of Mr. Padilla with no contact and no assurance of any aspect whatsoever of your future is something that isn't even known by the most closely confined inmates in a super-max prison where their guilt has already been adjudicated. Even those inmates have access to the judicial system. To defend even the basic character of Mr. Padilla's confinement absolutely requires that the defender assume that Mr. Padilla is guilty even if they are unwilling to acknowledge that belief. To allow the executive branch, on its own initiative, to operate on this basis is something that I, who routinely deal with those accused of crimes, can scarcely imagine exists outside of the pages of pages of 1984.
-- Police Officer, responding to Glenn Greenwald's discussion
Greenwald has another powerful post discussing Padilla's motion to dismiss, which provides the first detailed look at the nature of his detention and interrogation. The administration bluntly defended their "black hole" approach to this American citizen as necessary to interrogate -- showing an honesty that was so atypical one might think it a trick, they at times readily admitted this was the core reason for the detention, not any real intention to convict him of anything. This makes perfect sense, since the whole point of Padilla v. Rumsfeld was for the Supremes to find a way to punt ... no, it was that an American citizen was refused even a hearing to justify detention. When the requisite number of justices later made it clear that it was time to put up or release him, they finally sent him to criminal detention.
Because there is no "there" there, anything there was obtained by illegal means, or some combination of the two, the government still is not really offering much in way of actual criminal allegations. [On the ability to use civil trials in such cases as well as an overall excellent denunciation of the Military Detention Act of 2006, see Michael Dorf's article here.] Not surprisingly, this has caused some problems from the judge, who wants to at least show some shadow of respect for the Fifth Amendment. Meanwhile, to show exactly how extreme the case against the government is, the lawyers are specifying just how badly their client was treated. As Greenwald shows, "torture" is an appropriate word here, all these techniques used: sleep deprivation, temperature change, noxious fumes, physical threats, stress positions, long term continual isolation, and drugs.
Appropriately, Stephen Griffin over at Balkinization also has an entry against the "ticking time bomb" defense of torture. The idea is that if torture would stop a bomb that was about to destroy a city with millions of people, would it not be justified? Thus, even liberals such as Sandy Levinson are loathe to say it is never justified, though they are likely to use a "necessity defense" route (it's illegal, but after the fact, the torturers might get off, perhaps by pardon) that still is not the route of the Bush Administration (secrecy/immediate immunity for acts before 2005/no right for alien to bring claim). Such sorts also might admit "torture" or "cruel, inhuman and degrading" can be difficult to apply in certain cases.
He, for instance, cites Chavez v. Martinez, involving questioning of an injured suspect that lead to a divided ruling barely (5-4) holding the person had a case.* Levinson's comments were useful, including support of a definition holding that "[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct." He also noted that it was clear that it would not be legitimate solely to obtain "actionable intelligence" that might prevent harm to service personnel and so forth. Griffin went further. In his view: "Defined in a common sense way, torture involves deliberate cruelty and, as such, should be absolutely prohibited." He also cited (a comment provided the link) to a law review article by Kim Scheppele that attacked the ticking time bomb justification.
The article first provides (with suitably depressing footnotes) the clear reality that we tortured, and it was not (CYA prosecutions aside) a case of "a few bad apples." Such facts need to be put out there, to remind people what we are dealing with here:
Subsequent disclosures, however, have revealed that Abu Ghraib was not an isolated location with unique problems. Detainees in American custody in Guantánamo, in Afghanistan, and in many locations in Iraq have been beaten, menaced by dogs, threatened with infliction of pain, subjected to prolonged periods of solitary confinement, deprived of sleep, subjected to sexual humiliation, exposed to extremes of heat and cold, shackled in painful positions for many hours, and bombarded with bright lights and loud music for extended periods. A number of detainees have been subjected to many, perhaps even all, of these techniques over weeks and months of interrogation.
Overall, the ticking time bomb scenario is a false trope because it is a fantasy device. The proverbial pony that in real life simply will not go as the typical hypo would have it go down. A primary problem is that in reality it simply is not some sure thing in which the interrogator and would be terrorist are in a vacuum. The 24 scenario. No, first and foremost, it involves bureaucratic decision-making that experience shows will not be limited to "extreme" (and the author doubts such cases really are likely to occur -- the scare scenarios rather unlikely) cases. In fact, this is seen in protocols for use of deadly force -- they are basic principles (rather vague) that are not limited to "the worst of the worst." The Supreme Court might have said that a fleeing felon per se is not enough, but we are not just talking serial killers here.
What’s notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting “ghost detainees” kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. The use of hooding was ubiquitous; the same goes for forced nudity, sexual humiliation and brutal beatings; there are examples of rape and electric shocks. Many of the abuses seem specifically tailored to humiliate Arabs and Muslims, where horror at being exposed in public is a deep cultural artifact.
-- Andrew Sullivan, Atrocities in Plain Sight, NYT Book Review (2005)
This aside from the problem of rightful identity/truth telling, determining if "momentous, imminent, and certain catastrophe" (often defined down, thus though even top operatives might not actually know much of immediate import, they are deemed proper targets) is involved, and the questionable morality of torture itself. [The article is not geared to the point, but it cites another that holds that torture per se is illegitimate, quite different from violence per se, in effect "worse than death" that might come from battle and bombing.] Overall, in the real world, there is "inevitable imprecision" that simply does not make the scenario sensible. This sort of thing suggests lessons taught in the 17th Century should not be deemed "quaint" today:
No man shall be forced by torture to confess any crime against himself nor any other, unless it be in some capital case where he is first fully convicted by clear and sufficient evidence to be guilty, after which if the cause be of that nature, that it is very apparent there be other conspirators, or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane.
-- Article 45 of the 1641 Massachusetts Body of Liberties
Now, "capital crimes" were much broader back then, and one doubts torture should even be allowed in those limited cases. Also, one gets the idea that torture by definition is "barbarous and inhumane." Still, one gets the idea. It also might be noted that that list also contained perhaps the first animal welfare provision in the colonies as well. But, that's for another day.
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* I think he somewhat misleadingly suggested Kennedy's partial dissent (see also Stevens' opinion, supplying a partial transcript) was relevant here in that it raised the possibility that it was sometimes legitimate to interrogate injured individuals. But, the hypotheticals did not suggest harm could be done directly to advance such ends. SL crosses the line with this comment:
But I confess that I do not view, say, 24-36 hours of such deprivation as "torture," even if it is undoubtedly coercive (and, most certainly, "cruel and unusual," if used as a form of punishment rather than as a goad to interrogation). Indeed, the authors of The Interrogators insist, with whatever degree of plausibility, that very often the interrogators themselves, as a practical matter, got little more sleep than those they were interrogating.
Given the realities of the situation, it would be hard to imagine cases when deprivation of sleep for a day and a half would not be torture, especially given what must be done to assure that state of affairs. And, no matter what the authors "insist," to compare the interrogators position with those interrogated is asinine. Obviously, though the obvious does seem to confuse many people in power, even those with the same lack of sleep are not in the same position as those being controlled. It is honestly disgusting to compare the two.