The Media’s Continuing Failure To Inquire Into Why The Government Vigorously Urges That Civilian Courts Have No Jurisdiction Over Detainees

Dear Colleagues:

It has previously been said here that the media should be inquiring into and discussing the following question: whether one reason the government seeks to avoid civilian trials of alleged terrorist “detainees” is that, because of the use of abuses, torture and long periods of incommunicado detention in order to obtain evidence, it will be unable to obtain convictions in civilian trials. Rather, its prosecutions would be thrown out, perhaps even with dispatch, because of the equivalent of “police misconduct” to obtain evidence. This question, as has been said here, is relevant to the Government’s position in Supreme Court cases, where it vigorously urges that civilian federal courts can have no jurisdiction. Yet the media, as far as I know, have not inquired into or discussed this question. That is a culpable failure.

The culpability of this failure is highlighted by the fact that on Tuesday the Government released documents showing what Jose Padilla allegedly did, and said he had cooperated with interrogators since being captured in May 2002. Padilla was apparently held incommunicado for nearly two years, until March of 2004, when his lawyers were finally allowed to meet with him.

It seems obvious that evidence the government would use against Padilla would come from statements he made during nearly two years of being held incommunicado. It seems equally likely that such evidence, obtained during such a lengthy period of not allowing Padilla to see his lawyers, cannot be used against him in civil courts under current standards. Perhaps we need new standards in civil courts for these kinds of cases -- perhaps some reasonable period of incommunicado but non-abusive, non-torturous detention, monitored regularly by federal magistrates, could be a reasonable exception to current rules (although it is plain that nearly two years of incommunicado detention is way, way out of bounds). But whatever resolution one might arrive at, holding Padilla for two years makes it seem pretty clear that one reason the Government wants to try people before military tribunals, not in civil courts, must be that its evidence cannot currently stand up in civil courts because it has been obtained illegally under the existing rules. Yet the press has not inquired into and discussed this important subject. Why not? It should start doing so immediately, especially because, as the people who founded this nation knew, what the Government chooses to do to one person today, it may choose to start doing to others tomorrow.