Shell

I have no doubt that, sometime in the future, we will look back on Jose Padilla and ask: What have we done?

Jose Padilla may be a terrorist. Or he may not be. We really don't know. We seem far less confident that he was particularly dangerous now than back in the days we were accusing him of plotting to set off a dirty bomb. There is a non-trivial chance that he is entirely innocent. Even if he isn't, though, there is little to justify the horrors we, in the name of the red white and blue, visited upon him while in our custody. What lines were we not willing to cross? What simply would have been too much?

In any event, whatever his backstory is, there is little that we can hope to glean from him about terrorism now, several years after his capture. Often times, such detentions are justified by what's known as the "mosaic theory," that good intelligence requires finding as many small bits of information as possible, which can be arranged into a big picture--even though individual holders of information may not have anything to do with its broader significance or even be aware of it.

That's probably solid analysis, as far as it goes. But there is a problem:

[The mosaic theory] also implies that useful information can be obtained even from people who have no idea that they know anything of importance, and are not affiliated with any terrorist group: such individuals might have noticed something whose significance is apparent only "to those within the FBI or the intelligence community who have a broader context within which to consider a questioned item or isolated piece of information."

The mosaic theory makes sense to me: of course counterterrorism agents should try to discover as many little bits of knowledge as possible and try to fit them together into a broader picture. But it is also an invitation to abuse: to incarcerating people who might have done nothing wrong, and holding them indefinitely on the off chance that some tiny useful fact of whose existence they are completely unaware might emerge during the millionth round of questioning. It therefore stands in desperate need of some countervailing restrictions on how long people can be kept on the off chance that they might produce a tiny fragment piece of the mosaic, and whether they can be held at all absent any reason to suspect them of a crime.

The problem, of course, is that there has been no interest, no pressure, and no incentive to create these countervailing restrictions. So long as there is some plausible intelligence justification for holding Padilla (which, to be fair, there is--but scarcely more than that which could justify holding me or you), the administration has apparently concluding it can do anything for any amount of time, and it's all gravy under the President's war powers. This cannot be allowed to stand. And when history looks back on that decision, it will do so with a very critical eye. Of that, I have no doubt.