I think that all of us, both conservative and liberal, believe that government powers must have limits, and among those limits are time-honored (and Constitutional) limits specified in the Bill of Rights. When the government deliberately violates those rights, we all must be angered, for those rights are our safeguards. The Anonymous Liberal looks at an argument made in favor of violating those rights:

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).

Talk about grim logic. To me, that’s like Jeffrey Dahmer arguing that he had to cut his victims’ heads off because it was the only way to fit them in the freezer.

That is to say, it’s an ends-justify-means argument in which the ends are as repulsive as the means.

The government should simply not be in the business of trying to destroy people’s minds (much less those of U.S. citizens), which is what they did to Padilla. 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. I will not mince words: They are the powers of a dictator in an authoritarian regime. They are the powers of the old Soviet Union, of the military junta in Argentina during the time of the disappeared.

To be sure, the President thought that Padilla was a dangerous man. But authoritarian regimes always think that the people they lock up are dangerous. They always do it to keep the country safe, to save the country from its enemies. The question is at what cost do they assume such power without accountability.

The fact that this is “the question” here in the year 2007 is depressing beyond measure. If the rule of law and the concept of due process are to have any meaning at all, these kind of powers cannot be tolerated. Not now. Not ever.