On June 1, Deputy Attorney General James Comey called a press conference to discuss the evidence the government says it has amassed against the alleged "dirty bomber" Jose Padilla. While Comey's revelations were widely reported, the impropriety of his actions seems to have passed largely unremarked. Acknowledging that he was playing to "the court of public opinion," Comey claimed to tell "the full story of Jose Padilla," disclosing informants' claims about the prisoner and several statements Padilla allegedly made while in custody. Comey suggested that the statements showed Padilla to be a dangerous al Qaeda associate intent on taking untold American lives.
At the same time, Comey acknowledged that the government did not expect to offer Padilla any forum in which to refute or question its alleged evidence, and dodged questions about the questionable timing of releasing such incendiary information while the Supreme Court is nearing a decision on Padilla's case, which raises the legality of his detention by the president. To me, as a former federal prosecutor and a criminal defense lawyer, Comey's performance constituted one more legally and ethically dubious maneuver by our government in a case that I already regarded as one of the most troubling in memory.
Padilla's case raises probably the starkest civil liberties questions that have come with the war on terrorism: Do the law and the Constitution permit the government to imprison a U.S. citizen indefinitely, without the benefit of a lawyer or a court hearing, merely on the president's word that this American is a potential terrorist?
A quick review of the facts: In May 2002, Padilla, an American citizen who had converted to Islam, returned to the United States after four years in the Middle East. He was arrested at Chicago's O'Hare Airport on a material witness warrant issued by the federal prosecutor's office in Manhattan, where Comey was then the U.S. attorney. On June 9, before a federal judge could rule on Padilla's challenge to his arrest, President Bush declared Padilla an enemy combatant. For two years now, he has been held in isolation by the Defense Department in a naval brig in South Carolina while the government has interrogated him. He has not been allowed to communicate with his family or, until very recently, his court-appointed lawyer.
Although Attorney General John Ashcroft claimed, the day after Bush's declaration, that Padilla was at the center of "an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb' " -- that is, an explosive device that would spread radioactive waste -- the government has never filed any charges, criminal or even civil, against Padilla. The sole justification the government has placed before the court for Padilla's imprisonment is a brief "declaration" from a Defense Department official who had no direct knowledge of the case. That declaration contained a sanitized summary of the intelligence that President Bush relied on. Yet, the government has fiercely resisted giving Padilla any kind of hearing where even this minimal evidence could be challenged. It maintains that it can continue to hold Padilla as an enemy combatant as long as the war on terrorism lasts.
Last December, in a 2 to 1 decision, the U.S. Court of Appeals for the 2nd Circuit in New York ruled that there was no legal basis to detain Padilla and ordered him released. The government appealed that order to the Supreme Court, which is expected to announce its ruling later this summer.
For argument's sake, let's assume that Padilla might well be the lethal spawn of Osama bin Laden. But even if that's true, the fundamental legal question is whether, as an American citizen, he is entitled to a real day in court before being locked away. While the Bush administration claims that Padilla's status as someone who was allegedly fighting on behalf of our enemies deprives him of normal due process rights, I have a hard time believing that the framers of the Constitution, after fighting the abuses of the English monarch, had any intention of ever allowing a president to imprison citizens simply on his say-so.
To my mind, all of this was disturbing enough even before Comey stepped in front of the microphones two weeks ago for what struck me as a startling and ugly performance. Comey said that the Justice Department had answered a letter from Republican Sen. Orrin Hatch of Utah, chairman of the Senate Judiciary Committee, about Padilla's case, and in doing so had de-classified much intelligence information, including some of the statements Padilla had allegedly made while in U.S. captivity, in order to "allow the American people to understand the threat [Padilla] posed." The public was then treated to frightening details about Padilla's meetings with senior al Qaeda figures and his proposal to detonate a radiological bomb in the United States. We now learn, Attorney General Ashcroft's comments notwithstanding, that al Qaeda had discouraged this. Comey said that the operative plan was for Padilla to blow up U.S. apartment buildings using natural gas.
Despite the Justice Department's wholesale damning of Padilla as the would-be killer of perhaps thousands of Americans, the government has no intention of presenting any of this evidence to a grand jury in order to bring criminal charges, Comey said. Thus, if the government gets its way, Padilla will have no chance to answer Comey, to learn anything about the sources of Justice's information, or even to offer his own version of events. Padilla is functionally a convicted terrorist, first imprisoned and now thoroughly stigmatized, without benefit of any of the constitutional safeguards embodied in the Bill of Rights. He has not had the right to remain silent; he has not had access to his lawyer; he has not been allowed to cross-examine witnesses or even to know who they are.
Completely absent from Comey's presentation was any discussion of the legal authority that allowed him to smear an American citizen in this way. Comey was not doing his duty in a courtroom, or giving a classified report to Congress, but making a purely voluntary disclosure of information that the government has only now found it opportune to reveal. He was frank in admitting that his mission was public relations. Yet the ethical rules of the American Bar Association (ABA) caution prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." Similarly, the Constitution prohibits Congress from passing bills of attainder -- that is, legislative acts that single out an individual for punishment without trial. But the executive branch, already Padilla's jailer, now claims the right to declare him guilty before the world, without giving him the opportunity for any meaningful response.
Imagine that the Supreme Court concludes that there is no legal basis for detaining Padilla and orders him released. How will Padilla unring this bell? Indeed, is there anywhere in this country where he could live without grave fears for his physical safety?
I cannot look at what Comey released with confidence that it presents a full or balanced picture of what Padilla did. Squeezed into a single footnote in the Hatch letter were these facts, which were glossed over by Comey: Padilla denies having sworn allegiance to al Qaeda or being a part of it; he denies that his trip to the United States was for the purpose of carrying out a bombing plot; and he says in fact that he only discussed these things as a way to avoid being pressed into fighting in Afghanistan.
Even more significantly, Comey revealed nothing about how the damning statements were wrung from Padilla. Comey claimed that Padilla had not been mistreated, but, when asked, declined to say that his confinement and questioning had met the terms of the Geneva Conventions. In March 2003, the government said Padilla could not see his lawyers because that would break "the proverbial pane of glass" behind which the government was keeping him. His lawyers have suggested, and no one has denied, that he was being subjected to sensory deprivation.
Probably the most galling moment of Comey's press conference came when he calmly conceded, "I don't believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel." Comey seemed to have forgotten why our courts do not admit such evidence or statements produced by coercion. It's because human experience has shown again and again that this kind of proof is unreliable. Consider the many people released from prisons in recent years after DNA proved that their confessions were false.
Finally, the potential effect of Comey's statements on the Supreme Court's decision raises serious ethical issues. Comey said there was nothing strategic about the timing of the release of this information. I am skeptical. The horrors at Baghdad's Abu Ghraib prison, which came to light after the Padilla case had been submitted to the court, chillingly demonstrate the hazards of denying prisoners access to lawyers and courts. With the news seeming to argue Padilla's case for him, the Justice Department was happy to push back with a news event of its own, designed to show that Padilla, by his own word, was a very bad guy.
So what's the problem? For starters, the ABA's Model Rules of Professional Conduct prohibit lawyers involved in a case -- as Comey, the second-ranking official in Justice, surely is -- from making statements "that the lawyer knows . . . will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. . . ."
Swaying Supreme Court justices with an unverified account of unreliable evidence obviously poses that risk. When asked about this, Comey defended himself by saying that he "assumed" the court had already decided the case. That's nothing more than a guess. Justices read newspapers and often reframe their opinions right up until an opinion is announced. Certainly, in my 25 years of practicing law, I cannot remember the government ever making such an inflammatory presentation about a pending case before the Supreme Court. The proper course was to wait for the court to issue its opinion. The fact that Justice officials chose not to do so reinforces the suspicions about their motives.
I do not know what Jose Padilla did, and it's quite possible that Padilla, a former Chicago gang member, is not just a two-bit thug in a kaffiyeh, but a major menace. Yet the problem all along has been that the government does not have admissible evidence to prove that.
Thus we arrive at the perverse logic that has characterized the Padilla case. Because the government cannot convict him after affording him the due process of a trial, it will skip all of it -- due process, trial, the Bill of Rights -- and imprison him indefinitely anyway. Now the government's lawyers have gone one step further, "proving" Padilla a terrorist via a news conference, without waiting to see if the Supreme Court decides that his rights were abused.
In law school, I was taught that our constitutional rights represent a view of the minimum value of a human being. They are a way of saying that even a dirtball is worth this much, because he is a person, not to mention the fact that said dirtball may turn out to be my brother, my daughter or even me. In the case of Jose Padilla, Comey and the Bush administration have set that value far too close to zero.