THE GOVERNMENT must imagine U.S. District Judge Michael B. Mukasey to be a patient man. The New York-based judge is considering the case of Jose Padilla, the U.S. citizen whom the government is holding as an enemy combatant in connection with an alleged al Qaeda "dirty bomb" plot. Early last month, Judge Mukasey ordered that Mr. Padilla, who was arrested by civilian authorities in Chicago as a material witness before being shunted off to military custody, be permitted to speak with his lawyers. This was hardly a radical step. Judge Mukasey authorized the contacts under tightly controlled circumstances and only for the narrow purposes of responding to the government's allegations, which would, he ruled, justify the government's detention if "some evidence" supported them. You might expect that the military would be able to live with this; Judge Mukasey's ruling, in all likelihood, would end up validating Mr. Padilla's indefinite detention without trial. Yet the military has all but declared in response that the republic will collapse if Mr. Padilla talks to counsel -- and, it ominously implies, the blood from any future terrorist attacks will be on Judge Mukasey's hands.
The government is concerned that its "prior briefing . . . failed sufficiently to focus on the grave damage to national security interests that would result from interference with the interrogation of Padilla," it argues in its latest brief. The military "regrets" that it earlier failed to warn Judge Mukasey of "the full extent of the potential adverse consequences of ordering attorney access." So it is warning him now. Along with its brief, it submitted a declaration by the director of the Defense Intelligence Agency, Vice Adm. Lowell E. Jacoby, who described Mr. Padilla's "potential intelligence value as very high" and said that he "firmly believe[s]" that providing Padilla access to counsel poses "a grave and direct threat to national security." Effective counterintelligence interrogation, he explains, requires the cultivation of a relationship of "dependency and trust." And "anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool." Even a brief meeting with a lawyer "can undo months of work."
This argument isn't new. Nor is the concern that introducing lawyers will frustrate the intelligence-gathering process entirely frivolous. Lawyers might instruct their clients not to talk or might hold out the possibility that the legal system could set them free. On the other hand, lawyers can also negotiate deals that facilitate cooperation with authorities. And civil liberties, in any event, always involve some measure of assumed risk. As risks go, this one seems pretty minimal. Why exactly is letting Mr. Padilla talk to his lawyer today more dangerous than letting Zacarias Moussaoui or John Walker Lindh talk to his -- or, for that matter, more dangerous than letting Mr. Padilla talk to his lawyer when he was still a material witness?
Judge Mukasey's patience appeared to be wearing thin at a hearing last week -- as well it should be. He has made an uncommon effort to balance the government's real security needs with the needs of basic fairness to a man who, however distasteful, is still a citizen of the United States. The government should simply comply with his order, rather than issuing eleventh-hour warnings that he is inviting the next terrorist attack.