Blogs: lzkoch@comcast.net

Citizen Padilla (Part V: Judge and Jury)

lzkoch@comcast.net — Mon, 28 Jan 2008 10:37:30 -0500

(Written with Brad Jacobson. Part 5 of a series.)

The law is filled with all kinds of nooks and crannies.

In federal court cases, it is illegal for the prosecution to go “judge shopping.” Which judge presides over a case is supposed to be determined by a spin of the wheel. It is, however, possible to judge shop simply by indicating one case is related to another already in the court system.

Two pathways existed to further prosecution of Jose Padilla: indict him on separate charges or via a superseding indictment to an ongoing case. The ongoing case, involving Adham Amin Hassoun of Ft. Lauderdale and Kifah Wael Jayyousi of Detroit, had already been assigned a judge, one the prosecution believed was a sure thing -- Marcia G. Cooke.

So instead of indicting Padilla on his own account, he was added via a superseding indictment to the ongoing case of Hassoun and Jayyousi. The charges in this indictment lacked so many of the alleged criminal elements that originally inspired President Bush to designate Padilla an “enemy combatant,” they became known around the courthouse as “Padilla lite.”

Why was the prosecution so confident Judge Cooke would do its bidding?

Cooke began her legal career as a public defender and registered Democrat, but later became a Republican (where there were better pickings), eventually making a good impression on then Florida governor Jeb Bush, to whom she reported directly while operating as Florida’s chief inspector general. It was Brother Jeb who recommended that Brother George appoint Cooke to the Federal bench, making her one of the few blacks appointed to a position of consequence during the president’s eight-year term. (There was speculation that Cooke had dreams of becoming the first black woman to be appointed to the Supreme Court.)

Her relative inexperience (only three years on the bench), and her willingness to play the supporting role the government sought, made her ham-handed from the very start of the trial.

In an extraordinary move, Cooke had her overbearing marshals obstruct reporters from doing their job by, in effect, granting “observer status” to reporters. They could sit quietly and take notes but were actively and physically prevented, during recess, from asking any question of a prosecutor or defense attorney, even the correct spelling of the name of a witness.

Cooke made two attempts at appearing to have some independence: the first was to rule that Padilla could not to be brought into her courtroom in chains and shackles. While her thug-like marshals had totally intimidated the press, the spectacle of a manacled Padilla might have been too on-message. Thus, this ruling, which stood, actually may have aided the prosecution, shielding it from overplaying its totalitarian hand.

Her second attempt (possibly made for the same reason) occurred early in the proceedings: she dismissed the most serious charge in the indictment – conspiracy to murder, kidnap and maim people overseas -- saying it was “duplicative” of other charges in the case.

But the result would set the tone for the remainder of the trial.

The prosecution immediately appealed to the ultra-conservative 11th Circuit Court of Appeals, which responded almost instantaneously, reinstating the charges in a swift and public way. The message to Cooke was clear. It would be her last significant ruling for the defense (arguably, until she rejected the prosecution’s wish to sentence Padilla for life).

Judge Cooke’s highly questionable courtroom extended to the jury as well.

An often overlooked event, which in more equitable proceedings might have led to a mistrial, occurred just prior to the July 4th recess: the Miami jurors filed into the jury box -- first row,
second, and third. But in what could only be a clear signal of its lack of impartiality, the first row of jurors that day were dressed all in red, the second row all in white, and the third row all in blue. This overt act, antithetical to a democratic judicial process, should have made any respectable judge livid and any responsible media outlet vocal. But it did neither.

Thus, it was no surprise this jury of red, white and blue -- having been denied the facts about the government’s ever changing charges, Padilla’s torture and illegal imprisonment, along with the denial of his other constitutional rights – such as the right to a swift trial -- took only a day and a half to review and consider three full months of testimony before finding Padilla and the other two defendants guilty on all counts.

Meanwhile, some in the legal community have defended Cooke, citing she was handed a difficult, high-profile case and that her final verdict, denying prosecution’s attempt to put away Padilla for life, showed a deserved leniency.

But this argument does not account for the fact that once the prosecution failed to provide that mysteriously missing 88th videotape (of Padilla’s interrogation at the Naval brig in South Carolina), Judge Cooke had the option of dismissing one or more of the charges against him. Yet she never exercised it, even after she had previously attempted to throw out the most serious charges against Padilla at the beginning of the trial. After Padilla’s gross mistreatment by the government – physical, mental and legal – which Cooke herself cited when she ultimately rejected the prosecution’s desire to lock him away for life, dismissing one of the charges after that 88th videotape happened to go missing would have been the just action to take.

Moreover, while Judge Cooke denied her jurors any knowledge of Padilla’s hellish abuse at the hands of the government or of the government’s series of legal bait and switches, she did cite these state abuses while rendering her sentence. Even if such maneuvering is an example of one of those nooks and crannies in our legal system, where is the justice in this? Why should a judge be ruling on something about which her jury is completely in the dark, about which might have meant the difference between freedom and nearly two decades of incarceration for a U.S. citizen whose constitutional rights were violated in a shockingly unprecedented manner.

Undoubtedly, a fair trial would have impelled Cooke to mete out justice that included more than a rebuff to the government’s suggested draconian prison term, a relatively stingy display of mercy for a man who, on the basis of charges that were never proven, had been treated worse than an animal for three and a half years by his own country.

The travesty of justice in this case also extends to those foot soldiers in Bush’s Justice Department who have thus far dodged any accountability for Padilla’s nightmarish journey.

John Ashcroft, who brought the “dirty bomb” charges, currently earns tens of thousands of dollars for his lectures. James Comey, who introduced the blowing-up-apartment-buildings charges, is now General Council for Lockheed Martin Company, earning hundreds of thousands in salary and hundreds of thousands more in stock options. Alberto Gonzales, who presented the conspiracy charges, is now disgraced, working at home, developing a trust fund to help pay for his legal expenses to defend against charges of perjury and improperly tampering with a congressional witness.

Jose Padilla will spend the next 17 years and four months of his life in prison (the prosecution’s appeal notwithstanding), where he will likely further descend into madness.

Citizen Padilla (Part IV: A Veil of Ignorance)

lzkoch@comcast.net — Fri, 25 Jan 2008 12:50:03 -0500

(Written with Brad Jacobson. Part 4 of a series.)

“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.

Citizen Padilla (Part III: The Radioactive Patsy)

lzkoch@comcast.net — Thu, 24 Jan 2008 12:44:52 -0500

(Written with Brad Jacobson. Part 3 of a series.)

In his adolescence, Jose Padilla -- just sentenced to seventeen years for conspiracy to murder, kidnap and maim individuals outside the United States -- was filled with an uncontrollable narcissistic rage. No father was present in the house, just his mother and two brothers and two sisters.

He had a classic Chicago gang-banger record: trespassing, drug possession (marijuana), armed robbery, battery. At 14 or 15 (there are conflicting reports), he was found guilty of participating in a savage robbery-murder by other gang members. When police asked him why he continued to kick the victim (who had lain unconscious on the street) with such ferocity that he died, Padilla reportedly said, “I just felt like it.”

Padilla, a juvenile, was given the maximum sentence allowable and released from juvenile jail when he was 21. A series of meaningless fast-food jobs in Chicago and Ft. Lauderdale followed. As did trouble. He punched a policeman in a dispute over a doughnut. In 1990, Padilla found himself in adult Florida prison, serving 303 days for a more serious charge -- firing a handgun at a motorist who cut him off on a highway. It was in prison that Jose Padilla found direction, an outlet for that rage: radical Islam.

U.S. prisons have become the hothouses for growing hardened criminals and more than one Islamic extremist. Not unlike their counterparts in the Middle East, these young men live in poverty and filth. And like their “brothers” in the Middle East, they are often desperate, hopeless and filled with rage that could be channeled outward in acts condoned and even celebrated by radical Islam. Radical recruiters in the Middle East and in England have been successful introducing alienated, desperate youth new pathways to Heaven and a means to live in the hearts of all Islam, their bodies and words depicted in photos and videotapes, their sacrifice praised as heroic. There has been smaller but similar success in sections of Great Britain.

Given the time and effort and large pool from which to choose, it’s surprising, however, how unsuccessful prison imams in the United States appear to have been in recruiting such vulnerable targets. Blacks in the United States comprise 13 percent of the national population and 49 percent of those in prison. While there may be some temporary gain in popularity while serving time, dedication to Islam among blacks in prison appears to wane with release. There are exceptions, of course, but even those exceptions differ significantly from the results produced by radical imams in the Middle East.

Not one case exists of another prisoner in the Broward County jail from 1989 on -- or, for that matter, in any prison in the United States during this period -- as having had a jail conversion to Islam who, after being released back into society, then carried out acts of terror against the United States of America.

There is little doubt that Jose Padilla, the Chicago street gang member of the Latin Kings who was nicknamed “Pudgy,” became a dedicated student of radical Islam. Padilla had great difficulty learning the classical Arabic script, the language of the Qur'an and classical literature, but he persisted.

Between his release from prison in 1988 and 1991, Padilla became a serious, if not able convert. Following his release from prison, he demonstrated his commitment to Islam, visiting and studying at the Masjid A Imam mosque in Ft. Lauderdale. He filed for an official name change to Ibrahim and later began to refer to himself as Abdullah Al Muhair. At that Ft. Lauderdale mosque, he was befriended by an outspoken supporter of Palestinian causes and charities, Adham Hassoun, later to be called his mentor. Now there was a “conspiracy” of two.

There are two other main sources for Padilla's alleged terrorist training. The first came from an unsworn "Mobbs declaration" (written by then under secretary of defense Douglas J. Feith's lackey advisor Michael H. Mobbs) offered to Judge Michael Mukasey in 2002 as a reason for denying Padilla his own attorney. The second declaration was said to have been authored by Mobbs, but was released May 28, 2004 under the signature of Paul Wolfowitz, Deputy Secretary of Defense. This was a far more detailed statement of Padilla's terrorist activities, “leaked” to the public in 2004, shortly after Deputy Attorney General James Comey brought the new exploding-stoves-in-high-rises charges against Padilla. The leak helped to sustain Comey’s new allegations. There was more detail in the second document -- where Padilla went during his years abroad, who he met, the weapons he trained on, etc.

But this tool remained only a government document that we were supposed to trust. By 2004, after it was found that there were no WMD in Iraq, “trust us” was no longer enough.

What appears to true, but still somewhat unproved in an American courtroom, is that Padilla was likely, if you will, up to no good when he was in the Middle East. But even here the evidence is tangled and contradictory. The FBI had been taping the phone conversations of Adham Hassoun, Padilla’s Islamic mentor, since the early 1990s. Out of 300,000 calls, the FBI managed to capture only seven conversations with Padilla’s voice talking in clear language , which included a discussion about the death of his grandmother and how his new 18-year-old Egyptian bride was willing to wear a veil.

Incidentally, these were calls overheard five years before he was arrested in Chicago for the alleged “dirty bomb” plot.

According to government claims, calls with other defendants used coded language. As Deborah Sontag of The New York Times put it, “...other defendants refer to their jihad‑related plans as ‘getting some fresh air,’ ‘participating in tourism,’ ‘opening up a market,’ ‘playing football,’ and so on. This leads to silly‑sounding exchanges where ‘the brothers’ discuss going on ‘picnics’ in order ‘to smell fresh air and to eat cheese’ or using $3,500 to buy ‘zucchini.’”

In other words, it was the kind of coded language employed by adolescents who hang out in secret tree houses, or dialogue Woody Allen might use if he were to pen a comedy about a gang of bungling jihaddists.

Yet, even more importantly, testimony showed that Padilla himself was never heard using any of this alleged coded language.

According to official U.S. documents, “In 1998, he [Padilla] moved to Egypt and was subsequently known as Abdullah Al Muhajir. In 1999 or 2000 Padilla traveled to Pakistan. He also traveled to Saudi Arabia and Afghanistan….While in Afghanistan in 2001, Padilla met with senior Usama Bin Laden lieutenant Abu Zubaydah.” The document then alleges that in 2002 “at Zubaydah's direction, Padilla traveled to Karachi, Pakistan to meet with senior Al Qaeda operative to discuss Padilla's involvement and participation in terrorist operations targeting the United States. These discussions included the noted ‘dirty bomb’ plan and other operations including the detonation of explosives in hotel rooms and gas stations.”

Much is made of the CIA-acknowledged “confession by torture” of Abu Zubaydah in May, 2002, a “prize” that sent George Tenet scurrying to the Oval Office to receive a gold star from George Bush – four years after the FBI had Padilla on tape planning to travel to the Middle East.

According to Ron Suskind’s book, The One Percent Solution, Padilla’s name first surfaces while Abu Zubaydah is being tortured by the CIA in Guantanamo Bay, in May 2002. Zubaydah, in the same set of confessions, also coughs up al Qaeda plans for blowing up banks and supermarkets and water systems, nuclear plants and apartment buildings and just about anything else he can think of to make the pain stop.

Zubaydah also, according to Suskind, fingers Padilla as a terrorist-in-training. Padilla is then found in Pakistan (where he’s en route to Chicago via Zurich). But by whom --
agents of the CIA? FBI? -- Suskind doesn’t say. On May 8, 2002, Padilla was arrested at
Chicago’s O’Hare airport with $10,000 in cash.

A month later, the arrest of Jose Padilla -- a terrorist mastermind on the cusp of setting off a lethal radioactive device that would result in “mass death and injury” -- was announced to the world.

So did the FBI, as far back as the mid 1990s, know Jose Padilla dreamed about getting his beginner’s permit in the terrorist business? Or, as Suskind writes, did Padilla first appear on the Government’s radar in 2002, when a tortured Abu Zubaydah offered up Padilla’s name for CIA chief George Tenet to give to President Bush? Or was this just another case of bureaucratic one-upmanship, of the FBI keeping secrets from the CIA? These questions remain unanswered.

Finally, did Padilla wish to inflict pain and suffering on the United States? The key word is wish. If one can believe the first and second Mobbs declarations, the answer is yes, since he received terrorist training. But was Padilla capable of pulling it off? Could he have actually built a “dirty bomb”? The resounding answer from nuclear experts is no. In fact, he was not only technically incapable of building such a complex device, but the Government failed to provide evidence that he posed any serious ability to undermine the security of the United States.

Did he talk about it? Did he dream about it? Sure. But in a way more akin to an extremist version of the hapless dreamers in Eugene O’Neill’s The Iceman Cometh.

According David Johnston of The New York Times:

“... Mr. Zubaydah dismissed Mr. Padilla as a maladroit extremist whose hope to construct a dirty bomb, using conventional explosives to disperse radioactive materials, was far‑fetched. He [Zubaydah] told his questioners that Mr. Padilla was ignorant on the subject of nuclear physics and believed he could separate plutonium from nuclear material by rapidly swinging over his head a bucket filled with fissionable material.”

Maybe no better image captures the leap of imagination necessary to believe the Government’s case against Jose Padilla.

Citizen Padilla (Part II: Manufacturing a Terrorist Mastermind)

lzkoch@comcast.net — Wed, 23 Jan 2008 04:54:06 -0500

Written with Brad Jacobson. Part II of a series. Read Part I.

The case of Jose Padilla came to public attention five years ago and concluded January 22 when he was sentenced to serve 17 years and four months for conspiracy. Along with Padilla, “conspirators” Adham Amin Hassoun and Kifah Wael Jayyousi were sentenced to 16 years and nine months, and 12 years and eight months, respectively.

U.S. District Judge Marcia Cooke rejected the prosecutors' contention that the crimes deserved life prison sentences, noting that while they were "serious," there were no acts of terrorism on U.S. or foreign soil, no attacks on officials, nor any plot to overthrow the U.S. government. “There is no evidence that these defendants personally maimed, killed or kidnapped anyone in the United States or elsewhere," said Cooke.

Federal prosecutor John Shipley said the government will appeal the sentence as too lenient. The Fourth Circuit Court of Appeals has the reputation of being the most conservative appeals court in the nation.

The prosecution’s appeal notwithstanding, Padilla’s sentence yesterday was the final act in the government’s five-year sideshow of unconstitutional bait-and-switches and Kafkaesque legal procedures, all beginning with the announcement of Padilla’s arrest on June 10, 2002. Not once did then Attorney General John Ashcroft use the words “alleged” or “reportedly” in his hastily convened news conference in Moscow, where he first leveled the implausible and ultimately unprovable charges.

“We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device or ‘dirty bomb’ in the United States,” Ashcroft said, claiming Padilla’s arrest had “disrupted an unfolding terrorist plot,” one that would have caused “mass death and injury.” Charges that nuclear weapons experts would later confirm to be highly exaggerated.

Ashcroft, in earlier testimony before Congress, shortly after 9/11, laid down an iron curtain around any criticism of government policies and decisions concerning President Bush’s declared but never Congressionally sanctioned “War on Terror”:

We need honest, reasoned debate and non fear-mongering. To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.

And with that one swipe, the American press stood at attention, saluted and, like lemmings, marched in lockstep off the cliff.

Thus it came as no surprise that newspaper headlines and lead stories on television and radio announced Padilla was “guilty” of planning to create and ignite a radioactive device or a so-called “dirty bomb.” Padilla’s “capture” at Chicago’s O’Hare airport, eight months after 9/11, proved to Americans and the rest of the world that the United States was capable of taking firm steps to win its “War on Terror.” Any serious questioning about the evidence or legality of the Government’s charges was effectively silenced, including voices dedicated to the protection of civil liberties, like those of the American Civil Liberties Union.

Claiming that Padilla showed “conduct in the preparation for acts of international terrorism,” President Bush declared him an “enemy combatant,” a concept inserted in the little read or understood USA Patriot Act that had recently been passed by Congress. (Later, the U.S. Supreme Court would judge that Bush’s actions were more in keeping with a “king” than a U.S. President.) Bush also denied Padilla the basic Constitutional rights accorded every U.S. citizen -- access to an attorney.

Padilla was then transferred to New York City, where his case came under the jurisdiction of Federal District Court Judge (now Attorney General) Michael Mukasey. Though Mukasey almost immediately -- much to the near hysterical distress of the Government -- ruled Padilla must be given access to an attorney and even assigned a specific federal public defender to assist in Padilla’s defense.

In an effort to persuade Judge Mukasey that Padilla was a serious and immediate threat who should be denied Constitutional rights granted to all U.S. citizens, the Government handed him an unsworn “declaration” by Michael H. Mobbs. This declaration later known as the “Mobbs declaration,” was a six-page, double-spaced document detailing Padilla’s alleged activities with al Qaeda. In part, it read:

Padilla and his associate conducted research in the construction of a "uranium‑enhanced" explosive device. In particular, they engaged in research on this topic at one of the AI Qaeda safe houses In Lahore, Pakistan...Padilla's discussions with Zubaydah specifically included the plan of Padilla and his associate to build and detonate a "radiological dispersal device” (also known as a “dirty bomb") within the United States, possibly in Washington, DC. The plan included stealing radioactive material for the bomb within the United States. The "dirty bomb" plan of Padilla and his associate allegedly was still in the initial planning stages, and there was no specific time set for the operation to occur.

Mobbs was a faceless Richard Perle acolyte, a Pentagon political waterboy-advisor to Douglas J. Feith, the under secretary of defense, the same Doug Feith who, according to General Tommy Franks in Bob Woodward’s Plan of Attack, is “the fucking stupidest guy on the face of the earth.”

Several days after the Mobbs declaration was delivered, when it became clear that Mukasey was holding to his decision to grant Padilla his own attorney, Padilla was spirited away in the middle of the night to a Naval brig in Charleston, S.C., out of the reach of civilian-judicial authority. In the brig, Padilla would be subjected to sensory deprivation techniques over the next three and a half years. Only in the last months of his solitary confinement would he be allowed to speak with his lawyer. By that time, his lawyers observed radical changes in his mental stability.

The five-and-a-half-year legal saga of Jose Padilla is unequaled in its denial of a U.S. citizen’s rights. It represents one of the most significant battles in a war on the Constitution masked by the “War on Terror.”

This war on the Constitution has been waged by a whole team (none of whom had served a day in combat): Ashcroft; Vice President Dick Cheney; his chief of staff David Addington, Cheney’s extra-smart bully and Èminence grise; and behind them a Department of Justice lackey, David Yoo, who churned out legal memos that supported every contention, including torture, all of which later were found to be unconstitutional concepts.

In Padilla’s case, a game plan was developed to convince a fearful American public that this low-grade thug, this simple-minded gang member from the Southwest side of Chicago, a recent convert to Al Qaeda, was capable of unleashing radioactive hell in the United States.

As it turned out, the government couldn’t have picked a better patsy.

lew.koch@gmail.com

Citizen Padilla (Part I: Judge Cooke's Torturous Sentence)

lzkoch@comcast.net — Tue, 22 Jan 2008 13:23:02 -0500

[Note: I'm awfully pleased and proud to present the first in a major several-part series from Chicago investigative reporter Lewis Z. Koch on the Jose Padilla case and its meaning for the American republic. Check back here daily for more. His co-author is Brad Jacobson — Rick Perlstein]

Jose Padilla, the first United States citizen in the “War on Terror” to have his constitutional rights stripped from him by a stroke of George W. Bush’s pen, was sentenced today to 17 years and four months in Miami by Federal Court Judge Marcia Cooke, five and a half years after his arrest. The charges—this time—were that he and two others conspired to murder, kidnap and maim individuals in a foreign country, as well as conspiracy to provide material support to terrorists, and providing material support to terrorists. The prosecution never named any specific individual or nation where this violence was to have occurred.

The two other conspirators tried and found guilty with Padilla, Adham Amin Hassoun of Ft. Lauderdale and Kifah Wael Jayyousi of Detroit, sentenced to 16 years and nine months and 12 years and eight months respectively. The jury, after listening to three months of testimony, arrived at its verdict—guilty on all counts—in a day and a half.

The Padilla case is central to the question of whether President Bush, CIA chief George Tenet and others lied when they said “the United States does not torture.” Judge Cooke, a protégé of both Jeb and George Bush, refused to allow the showing of videotapes of Padilla being questioned and probably tortured during his three and a half years in solitary confinement in a Naval brig in Charleston, South Carolina.

Prior to the start of the trial, the prosecution revealed it had 78 videotapes of Padilla’s interrogation in the Naval brig; although the final tape, the 78th, according to the prosecution, had somehow turned up “missing.” Despite the current controversy over the CIA’s destruction of tapes showing severe “interrogation techniques” (a k a “torture”) used on two Al Qaeda suspects—one of whom, Abu Zubaydah, was said to have named Padilla as a terrorist in training—Cooke was only mildly distressed about the missing tape. Though she had the option of insisting the Government produce the tape or dismiss one or more of the charges against Padilla, she never exercised it. She also threatened harsh sanctions against defense attorneys caught leaking the contents of any of the 77 tapes.

Cooke did, however, exercise her judicial discretion to prevent psychiatric defense experts from fully explaining the extent of the damage to Padilla’s mental health.

Government-funded research over the past half century has shown that sensory deprivation is a technique that produces a near-psychotic break, sometimes in less than 24 hours. Padilla experienced such conditions for three and a half years. His defense attorneys, based on expert psychiatric evaluations, argued that such a duration of relentless questioning and isolation—which included extreme sensory deprivation—had driven him to a state where he could not assist his attorneys in his defense.

The very tapes that Cooke, in her discretion, had ruled inadmissible, could have been used to demonstrate the evolution of Padilla’s deteriorating mental condition, from coherent and capable of grasping his situation to a broken, disoriented man unfit to stand trial.

“I’m not sure that any of us know what happened at the brig, but I know that something there put the fear of God into Mr. Padilla,” psychologist Patricia Zapf, a defense expert witness, testified. “Mr. Padilla is an anxiety-ridden, broken individual who is incapacitated by that anxiety.” After examining him for 22 hours, Dr. Zapf concluded Padilla exhibited symptoms of post-traumatic stress disorder.

Rodolfo A. Buigas, a Bureau of Prisons psychologist and member in good standing of the American Psychological Association, disagreed with Zapf’s diagnosis. Buigas testified that when he first saw Padilla he appeared to be “actually pretty happy.” Buigas contended that Zaph’s diagnosis should be dismissed because she conducted the interview with Padilla while he was handcuffed. Yet cross-examination revealed that Padilla was handcuffed as a condition imposed on Zapf by prison officials.

So what were the conditions of Padilla’s confinement?

Over strong objections from the government, elements of Padilla’s confinement were revealed. Here’s how the Christian Science Monitor described it:

“Padilla’s cell measured nine feet by seven feet. The windows were covered over… He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla’s lawyers were prevented from seeing him for nearly two years.”

Craig S. Noble, a psychologist at the brig, saw Padilla once for a “brief evaluation” and noted Padilla was “responsive, made good eye contact, and in fact, smiled periodically.” It would be another two years before psychologist Noble saw Padilla during a “cell front visit,” in which he spoke to him through a rectangular slot on the cell door. Noble found no signs of “distress and lethality.”

Indeed, a thorough psychiatric evaluation if there ever was one.

While forensic psychiatrist Dr. Angela Hergarty was allowed to briefly testify at Padilla’s trial, what she could say was limited to restrictions demanded by the prosecution and, for the most part, sustained by Judge Cooke. Consequently, the jury was prevented from hearing Hegarty’s analysis about what had happened to Padilla in the brig, the effect of which surely would’ve been devastating to the prosecution. Dr. Hergarty’s description would have to wait for a comprehensive, nuanced interview with Amy Goodman, host and executive producer of Democracy Now!

“What happened at the brig was essentially the destruction of a human being’s mind. That’s what happened at the brig. His personality was deconstructed and reformed,” Dr. Hargarty told Goodman. “In the darkness or in the light—in the cells, the light would be all dark for a long time or all light for a long time. And for a very long part of his detention he had no mattress at all. And sometimes he would try to sleep on the pallet, if you will, the hard steel pallet, or other times he would be in essentially stress positions where he’s got shackles and a belt and is in an awkward and uncomfortable position for long periods at a time....he would hear the click of the door opening, which is a loud click that sort of echoed, and then a very loud bang over and over and over again for hours at a time, possibly days. He had no way of knowing the time. The light was always artificial. The windows were blackened. He had no calendar or time, as you mentioned earlier. He really didn’t see people, especially in the beginning. He only had contact with his interrogators.”

These conditions define classic sensory depravation.

In Dr. Hergarty’s estimation, Padilla had become “a different man,” living in an “absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like—perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened.”

In addressing the definition of torture, Hergarty told Goodman, “Well, ‘torture,’ of course, is a legal term. However, as a clinician, I have worked with torture victims and, of course, abuse victims for a few decades now, actually. I think, from a clinical point of view, he was tortured.”

To this day, those 78 tapes remain unseen and unanalyzed by the public.

Judge Cooke, however, was simply the last in a long line of so-called public servants to undermine the constitutional rights of Jose Padilla.

Part I of a series. Read Part II.

lew.koch@gmail.com