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

[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 [1] — 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 [2].

lew.koch@gmail.com [3]