(Written with Brad Jacobson. [1] Part 4 of a series [2].)

“The principles of justice are chosen behind a veil of ignorance," wrote philosopher John Rawls, in A Theory of Justice. In the case of Jose Padilla, the Justice Department made the veil opaque to the point of impenetrability.

The Miami jury was never informed of Padilla’s three-and-a-half years of torture over those “dirty bomb” charges. It never heard the highlights of Deputy Attorney General James Comey’s news conference in 2004, when he announced new charges (superceding those of the dirty bomb) that Padilla had been planning to blow up high-rise apartment buildings. Nor did the Miami jury hear Comey’s response to a reporter’s question regarding the legitimacy of this evidence, when he sheepishly admitted that, since Padilla never had an attorney present, none of the information gleaned from the confession would be admissible in a court of law. The jury was unaware too of what Comey knew but wouldn’t say: the confession had been gained through torture.

To supplement and support Comey’s new charges, another Mobbs declaration, more substantial and detailed yet still unsworn, was added.

Vice Admiral Lowell E. Jacoby, (USN) Director of the Defense Intelligence Agency (DIA), provided another legal smokescreen, a separate unsworn declaration (made on January 9, 2003) that played a key role in developing the rationale for keeping Padilla in jail and out of sight. (The DIA is a major producer and manager of military intelligence for the United States Department of Defense, the same agency that fully supported the concept of Iraq’s possession of nuclear and chemical weapons of mass destruction.)

In his unsworn declaration, however, Admiral Jacoby unwittingly presented evidence that he supports the use of torture, expressly the type, to which Padilla was also subjected, that permits unrelenting interrogation without intervention of an attorney. This rationale for torture indicates Jacoby was not upholding the Constitution he had sworn to protect and defend against all enemies foreign and domestic, and that he was willing to perjure himself to ignore those Constitutional rights if they interfered with the government’s ability to extract information. Regardless of its quality.

In Jacoby’s world, the whip or the rack isn’t necessary; far more subtle techniques are available when dealing with an isolated, imprisoned man:

…developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as another intelligence‑gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject‑interrogator relationship. Any insertion of counsel into the subject‑interrogator relationship, for example ‑‑ even if only for a limited duration or for a specific purpose ‑‑ can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process....

The Supreme Court of the United States, however, didn’t trust Jacoby or Mobbs. Or Bush.

Enter Hamdi v. Rumsfeld, No. 03-6696.

Captured in Afghanistan in 2001 while fighting U.S. forces, Yaser Esam Hamdi was shipped to Guantanamo Bay when it was discovered he had duel citizenship – Saudi and United States. Hamdi, like Padilla, was denied an attorney. But Hamdi’s father hired one for his son, and the two cases – Hamdi and Padilla -- worked their way to the Supreme Court at the same time.

In Hamdi’s case, the Supreme Court handed the Bush Administration a crushing defeat.

By an 8‑1 vote, the justices rejected the administration's claim that it could hold alleged "enemy combatant" Yaser Hamdi in custody indefinitely, with no hearing or access to an attorney. By a 6‑3 vote, the justices also rejected the administration's claim that detainees at Guantanamo Bay have no right to redress in U.S. courts.

This was the decision in which Justice Sandra Day O’Connor affirmed, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

And while the justices declined, on a 5‑4 vote, to consider the merits of the case brought
by Jose Padilla against Donald Rumsfeld – on grounds it was improperly filed in New York instead of South Carolina (where Padilla was held) and should’ve named the Commanding Officer of the Naval Brig, C.T. Hanft, rather than Rumsfeld -- the writing on the wall was there. At least five justices would be waiting to vote against President Bush when the Padilla case returned to court.

Only a technicality stood between Padilla and his release.

Panic shot through the Justice Department. The cases for both the dirty bomb and blowing-up-apartment-building charges had collapsed. New charges needed to be invented, and quickly.

Attorney General Alberto Gonzales found the solution: Padilla, along with “co-conspirators” Adham Amin Hassoun and Kifah Wael Jayyousi, would now be accused of conspiracy to murder, kidnap and maim unnamed individuals in unspecified countries. And once again reporters played stenographers, not only failing to question this second curious change in charges but also to connect this new charge to the Supreme Court’s Hamdi decision.

Moreover, the Supreme Court’s ruling on the unconstitutionality of Padilla’s treatment, as evidenced by its Hamdi decision, was one more piece of valuable information the Miami jury would never hear about. To the jury, Padilla, de nova, was suddenly being charged with an elaborate, if exceedingly vague, terrorist conspiracy. And every detail of his years of unconscionable mistreatment -- physical, mental and legal – were disappeared. During the day and a half of deliberations it took the jury to reach its verdict of guilty on all counts, none of this pertinent information would color the jurors’ government-approved bubble.

The veil of ignorance has become a chador.