Friday, September 07, 2007

No Aid Will Come

Taken entirely from Balkinization (apologies, but there is no way to condense this):
Jean Améry, on the experience of having been tortured by the Nazis in the late 1930s, from At the Mind's Limits (1964):
Not much is said when someone who has never been beaten makes the ethical and pathetic statement that upon the first blow the prisoner loses his human dignity. I must confess that I don't know exactly what that is: human dignity....I don't know if the person who is beaten by the police loses human dignity. Yet I am certain that with the very first blow that descends on him he loses something we will perhaps temporarily call 'trust in the world.'...

The expectation of help, the certainty of help, is indeed one of the fundamental experiences of human beings, and probably also of animals.... The expectation of help is as much a constitutional psychic element as is the struggle for existence. Just a moment, the mother says to her child who is moaning with pain, a hot-water bottle, a cup of tea is coming right away, we won't let you suffer so! I'll prescribe you a medicine, the doctor assures, it will help you. Even on the battlefield, the Red Cross ambulances find their way to the wounded man. In almost all situations in life where there is bodily injury there is also the expectation of help; the former is compensated by the latter. But with the first blow from a policeman's fist, against which there can be no defense and which no helping hand will ward off, a part of our life ends and it can never again be revived.

From the formal Declaration of U.S. Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency of the United States of America; January 2003:
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 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 [Department of Defense] 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.

I am increasingly frightened by what we are becoming as a nation.


PG said...

Hmm -- I don't think the expectation of the assistance of counsel is quite as fundamental as the expectation that the police -- the people who are named as your protectors -- will not beat you, or that if they do, someone else will come help you. Even in American culture, assistance of counsel was not guaranteed in state trials until Gideon (1963). So it is only for 44 years that we have assured all defendants that they will have a lawyer on their side.

And if the worst thing this administration had done was to refuse to give Padilla counsel immediately after detaining him, due to intelligence that showed he was in fact (as the Bush administration alleged) in close association with Al Qaeda and planning an attack, then I'd be a lot less critical of them than I am now. I do believe that to some extent, a U.S. citizen, who is suspected of working with international terrorist organizations that have already committed crimes prosecutable in the U.S., can be arrested on a material witness warrant, detained by the U.S. government and questioned about his connections with those organizations, without immediate access to counsel.

What frightens me about Padilla's case is the possibility that he's telling the truth about having been tortured by our military. That is a situation far more similar to Jean Amery's. It is "bodily injury" that Amery specifies, not merely the emotional fear that comes with knowing that you're in trouble with the authorities and don't have a lawyer with you. I find it unlikely that Amery would consider the expectation of having a court-appointed attorney upon arrest as a material witness to be "one of the fundamental experiences of human beings."

David Schraub said...

I think what makes Jacoby's comments scary isn't that he refused to grant Padilla an attorney, but the broader context as to why. Certainly, the US didn't always guarantee a right to an attorney--but even indigents who couldn't afford one still had, say, a public trial, in front of a reasonably neutral judge, with the possibility of media coverage, presence of friends and family, etc.. Jacoby's reasoning is that we must totally and completely isolate Padilla from all of these potential sources of psychological relief--the fact that an attorney was the particular point at issue here isn't as relevant as the broader mindset it represented.

PG said...

Well, yeah -- Padilla wasn't going to give up information if he thought that he was about to get sprung from jail. I realize that you're troubled by Jacoby's willingness to put psychological pressure on Padilla. But psychological pressure of that type -- making the detainee feel isolated -- doesn't bother me in situations where there's credible intelligence that this person has important information. To my knowledge, such isolation doesn't violate the Geneva Conventions or other human rights treaties to which the U.S. is a signatory.

I think at the point that you tell an interrogator that she can't try to make the detainee feel like the interrogator is his only friend and therefore he'd better tell her what he knows, you are unnecessarily hamstringing her ability to get information. I worry more about what our military and intelligence services actually do to people, than the mindset behind their actions.