Terrorism

Steel: Important To Us But Not Important To Us

Dave Johnson — Fri, 14 Aug 2009 10:10:08 -0400

I had the opportunity to tour a steel plant outside of Pittsburgh yesterday. (I am here for the Netroots Nation convention.)

The word that keeps coming into my mind is "intense."

I experienced intense heat, intense colors in the molten steel, and intense faces on the workers. We wore protective clothing, boots, earplugs, gloves and protective eyeware. Safety is a prime concern because without careful attention to detail this can be a very dangerous undertaking. The workers in these plants depend on safety procedures and each other to a degree that you do not find in many other occupations.

One of the notable things about this tour was the security. It was intense. I won't get into some of the details, but plants like these are considered to be very important to the Department of Homeland Security and special precautions are taken. You need special permission to even enter the grounds. ID is carefully checked. We not only couldn't even take pictures of the facilities but they will confiscate a cell phone if they see it out of your pocket. (You can have it back later.)

Let that sink in: Manufacturing plants like these are considered vitally important to the security of the United States and are assigned special protection.

Unfortunately our own government does not feel the need to protect plants like this beyond the vague post-9/11 threat of "terrorism." They check your ID at the gate, but they aren't concerned with making sure plants like this one stay in the United States. The two blast furnaces at this plant are the last two operating in the whole state of Pennsylvania. There used to be a dozen just at this plant. Nationally the decline is similar. We all know this but we do not seem to be capable of doing something about it.

Scott Paul On The Chinese Steel Steal

The executive director of the Alliance for American Manufacturing explains to a group of bloggers on a steel plant tour outside Pittsburgh how Chinese steel manufacturers gain an unfair trade advantage over their U.S. counterparts, even though U.S. plants are demonstrably more efficient and technologically advanced. The August 13 tour was part of the Netroots Nation conference.

This decline is not the "buggy-whip" phenomenon where an industry is being replaced or is evolving. Quite the opposite. Steel is the core component of the bridges, buildings, appliances, cars, etc. that we build. But now much of that steel comes from other countries. And much of it is inferior quality or produced in ways that harm the planet. This plant produces 1/3 the carbon emissions of similar plants in China. And then there is the carbon-emitting shipment across oceans to consider. But harming the planet is apparently someone else's long-term problem when money is to be made today.

The problem is not even labor costs. Labor is not a large component of our steel costs. The cost of raw materials is a larger part of the lower cost of imported steel. When you hear about hundreds of people trapped in mines in other countries you are hearing about lower cost of raw materials. Lives can be cheap and it is someone else's problem when money is to be made.

We have stood by and allowed other countries take over industries like this one by pursuing national strategies to build their economies at the expense of our own, or their own workers and of the environment. When competition is allowed to occur by continually moving the work to cheaper and less protective (of both lives and the environment) regions the result has to be a continued downward spiral of living standards. This is not sustainable and we are all living the results of this constant downward pressure.

Manufacturing is the key to economic power. Yet we worry about some fanatics in a cave somewhere, but we don't seem to worry about losing the steel plants and other industries and the jobs and the economic benefits to us and the world. This practice of checking ID at the gate but standing back and letting the plant itself close because another country allows worker or environmental exploitation is beyond short-sighted. It is self-destructive.

War Without End

Digby — Wed, 03 Jun 2009 07:01:00 -0400

Marcy Wheeler hosted a panel on torture at the AFN conference featuring Rep. Jerry Nadler and Christopher Anders of the ACLU, in which Nadler set forth a couple of ideas that are illuminating about the thinking among political players on the subject.

Marcy writes about one of them here:

Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler's bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I'm looking for video--but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping.

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he's not proposing lawsuits as the sole means for accountability. But he's thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad's suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it's not just state secrets that protects the wrong-doers. It's also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it's not going to land Dick Cheney in jail.

Nadler is a stalwart fighter of the good fight on these issues, so this isn't critical of him. It seemed to me to be a reluctant acceptance that the only place where we can probably expect any kind of accountability --- and clearly not any kind of criminal liability --- is in the civil courts. It's a damning admission of the uselessness of the congress in these matters but I think it's sadly realistic.

I was also struck by Nadler's commentary about the prospect of preventive detention. As a civil libertarian he is obviously not in favor of such a thing, but his solution was somehat odd. He claimed that the Guantanamo prisoners should be considered POWs, even though they weren't captured wearing a uiform, which at first blush sounds reasonable. After all, if they are captured on a battlefield shooting at soldiers in what both sides consider a war, they should be prisoners of war and according to the Geneva Conventions could be held for the duration.

The problem is that there's no mechanism for "winning" this war --- or surrendering. If bin Laden emerged from a "spidey hole" tomorrow, it would be meaningless for this purpose. There's no land to occupy and no one with whom to negotiate a settlement. We could just theoretically declare the "war" to be over, but I would guess that's about as likely as declaring that Swedish is the new official language of the US. All of this just adds up to POW status being indefinite detention by other means.

It's a thorny problem no matter how you look at it, unless the government just simply decides to take their chances that these people can be convicted before an American jury, which if the recent trial of the clearly tortured Jose Padilla is any example, shouldn't be that difficult. My suspicion is that most officials are more afraid of what will come out in a trial rather than the outcome. In Nadler's case, that clearly isn't the aim, but legalizing the prisoner's status to conform to the Geneva Conventions can't solve the problem if the "war" has no mechanism for conclusion. Indeed, the one thing such a thing will do is legalize the notion that the country is permanently at war. And when you think about it, hasn't that been true pretty much since WWII?

And that may be the biggest elephant in the room of all and the one thing nobody wants to talk about --- can America not be at war?

The Trauma of 9/11 Is No Excuse

OurFuture.org Staff — Sun, 31 May 2009 23:03:27 -0400

Cary Polevoy

Cary Polevoy — Mon, 29 Sep 2008 17:05:56 -0400

Cary J. Polevoy holds M.B.A and undergraduate degrees from Michigan State University. An active investor since 1965, Mr. Polevoy began his investment career as a stockbroker. He has also been a NYSE Supervisory Securities Analyst, director of research, mutual fund portfolio manager, and CEO/CFO of various small companies. He has worked for Merrill Lynch, EF Hutton, RAC Advisors, Quantum Fund, The Broe Companies, McKinley Medical, among others. Diagnosed with multiple sclerosis in 1995, he is the author of the book, "MS TOOLKIT - THE PATIENTS' & CAREGIVERS' GUIDE TO MULTIPLE SCLEROSIS."

U.S. 'Dangerously Vulnerable' to WMDs

OurFuture.org Staff — Tue, 09 Sep 2008 11:10:31 -0400

The United States remains "dangerously vulnerable" to chemical, biological and nuclear attacks seven years after 9/11, a forthcoming independent study concludes. And a House Democrats' report says the Bush administration has missed one opportunity after another to improve the nation's security. The recent political rupture between Russia and the U.S. only makes matters worse, said Lee Hamilton, the former Indiana Democratic congressman who helped lead the 9/11 Commission and now chairs the independent group's latest study.

Waterboarding for God

OurFuture.org Staff — Mon, 11 Feb 2008 10:00:57 -0500

After one spends 45 years in Washington, high farce does not normally throw one off balance. I found the past few days, however, an acid test of my equilibrium.

I missed the National Prayer Breakfast—for the 45th time in a row. But, as I drove to work I listened with rapt attention as President George W. Bush gave his insights on prayer:

“When we lift our hearts to God, we’re all equal in his sight. We’re all equally precious...In prayer we grow in mercy and compassion.... When we answer God’s call to love a neighbor as ourselves, we enter into a deeper friendship with our fellow man — and a deeper relationship with our eternal Father.”

Vice President Dick Cheney skipped Thursday’s prayer breakfast in order to put the final touches on the speech he gave later that morning to the Conservative Political Action Conference. Perhaps he felt he needed some extra time to devise careful words to extol “the interrogation program run by the CIA...a tougher program for tougher customers, including Khalid Sheikh Mohammed, the mastermind of 9/11,” without conceding that the program has involved torture.

But there was a touch of defensiveness in Cheney’s remarks, as he saw fit repeatedly to reassure his audience yesterday that America is a “decent” country.

After all, CIA Director Michael Hayden had confirmed publicly on Tuesday that Khalid Sheikh Mohammed and two other “high-value” detainees had been waterboarded in 2002-2003, though Hayden added that the technique has since been discontinued.

An extreme form of interrogation going back at least as far as the Spanish Inquisition, waterboarding has been condemned as torture by just about everyone—except the hired legal hands of the Bush administration.

On Wednesday President Bush’s spokesman Tony Fratto revealed that the White House reserves the right to approve waterboarding again, “depending on the circumstances.” Fratto matter-of-factly described the process still followed by the Bush administration to approve torture—er; I mean, “enhanced interrogation techniques” like waterboarding:

“The process includes the director of the Central Intelligence Agency bringing the proposal to the attorney general, where the review would be conducted to determine if the plan would be legal and effective. At that point, the proposal would go to the president. The president would listen to the determination of his advisers and make a decision.”

Dissing Congress

Cheney’s task of reassuring us about our “decency” was made no easier Thursday, when Attorney General Michael Mukasey stonewalled questions from the hapless John Conyers, titular chair of the House Judiciary Committee. Conyers tried, and failed, to get straight answers from Mukasey on torture.

Conyers referred to Hayden’s admission about waterboarding and branded the practice “odious.” But Mukasey seemed to take perverse delight in “dissing” Conyers, as the expression goes in inner city Washington. Sadly, the tired chairman took the disrespect stoically.

He did summon the courage to ask Attorney General Mukasey directly, “Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal?”

“No, I am not,” Mukasey answered.

Mukasey claimed “waterboarding was found to be permissible under the law as it existed” in the years immediately after 9/11; thus, the Justice Department could not investigate someone for doing something the department had declared legal. Got that?

Mukasey explained:

“That would mean the same department that authorized the program would now consider prosecuting somebody who followed that advice.”

Oddly, Mukasey himself is on record saying waterboarding would be torture if applied to him. And Michael McConnell, Director of National Intelligence, was even more explicit in taking the same line in an interview with Lawrence Wright of New Yorker magazine. McConnell told Wright that, for him:

“Waterboarding would be excruciating. If I had water draining into my nose, oh God, I just can’t imagine how painful! Whether it’s torture by anybody else’s definition, for me it would be torture.”

Okay, it would be torture if done to you, Mike; how about if done to others? Sadly, McConnell, too, missed the prayer breakfast and the president’s moving reminder that we are called “to love a neighbor as ourselves.” Is there an exception, perhaps, for detainees?

Cat Out of Bag

When torture first came up during his interview with the New Yorker, McConnell was more circumspect, repeating the obligatory bromide “We don’t torture,” as former CIA Director George Tenet did in five consecutive sentences while hawking his memoir on 60 Minutes on April 29, 2007. As McConnell grew more relaxed, however, he let slip the rationale for Mukasey’s effrontery and the administration’s refusal to admit that waterboarding is torture. For anyone paying attention, that rationale has long been a no-brainer. But here is McConnell inadvertently articulating it:

“If it is ever determined to be torture, there will be a huge penalty to be paid for anyone engaging in it.”

Like death. Even Alberto Gonzales could grasp this at the outset. That explains the overly clever, lawyerly wording in the Jan. 25, 2002 memorandum for the president drafted by the vice president’s lawyer, David Addington, but signed by Gonzales. Addington/Gonzales argued that the president’s determination that the Geneva agreements on prisoners of war do not apply to al-Qaeda and the Taliban:

“Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441)...enacted in 1996...

“Punishments for violations of Section 2441include the death penalty...

“[I]t is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”

— MEMORANDUM FOR THE PRESIDENT, January 25, 2002, p. 2

Mike McConnell needs to get his own lawyers to bring him up to date on all this. For that memorandum was quickly followed by an action memorandum signed by George W. Bush on Feb. 7, 2002. The president’s memo incorporated the exact wording of Addington/Gonzales’ bottom line; to wit, the U.S. would “treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of [Geneva]. (emphasis added)

That provided the loophole through which then-defense secretary Donald Rumsfeld and then-CIA director George Tenet and their subordinates drove the Mack truck of torture. Even the Bush-administration-friendly editorial page of the Washington Post saw fit on Friday to declare torture “illegal in all instances,” adding that “waterboarding is, and always has been, torture.”

Waterboarding has been condemned as torture for a very long time. After WW-II Japanese soldiers were hanged for the “war crime” of waterboarding American soldiers.

Patriots and Prophets

Patriots and prophets have made it clear from our earliest days that such abuse has no place in America.

Virginia’s Patrick Henry insisted passionately that “the rack and the screw,” as he put it, were barbaric practices that had to be left behind in the Old World, or we are "lost and undone." Attorney General Mukasey, for his part, recently refused to say whether he considers the rack and the screw forms of torture, dismissing the question as hypothetical.

As for prophets, George Hunzinger of Princeton Theological Seminary has awakened enough religious folks to form the National Religious Campaign Against Torture, a coalition of 130 religious organizations from left to right on the political spectrum. Hunzinger puts it succinctly: “To acknowledge that waterboarding is torture is like conceding that the sun rises in the east,” adding:

"All the dissembling in high places that makes these shocking abuses possible must be brought to an end. But they will undoubtedly continue unless those responsible for them are held accountable.... A special counsel is an essential first step.”

Sadly, Hunzinger and his associates have been unable to overcome the pious complacency of the vast majority of institutional churches, synagogues, and mosques in this country and their reluctance to exercise moral leadership.

How It Looks From Outside

Sometimes it takes a truth-telling outsider to throw light on our moral failures.

South African Methodist Bishop Peter Storey, erstwhile chaplain to Nelson Madela in prison and longtime outspoken opponent of apartheid, has this to say to those clergy who might be moved to preach more than platitudes:

“We had obvious evils to engage; you have to unwrap your culture from years of red, white, and blue myth. You have to expose and confront the great disconnect between the kindness, compassion, and caring of most American people and the ruthless way American power is experienced, directly or indirectly, by the poor of the earth. You have to help good people see how they have let their institutions do their sinning for them.

“All around the world there are those who long to see your human goodness translated into a different, more compassionate way of relating with the rest of this bleeding planet.”

Mukasey’s thumbing his nose at Conyers’ committee yesterday was simply the most recent display of contempt for Congress on the part of the Bush administration. The Founders expected our representatives in Congress to be taken seriously by the executive branch, and expected that Members of Congress would hold senior executives accountable—to the point of impeaching them, when necessary, for high crimes and misdemeanors.

That used to worry those officials and put a brake on more outlandish behavior. Not any more.

No Worries, George

One reads George Tenet’s memoirs with some nostalgia for the days of a modicum of congressional oversight, and with a strong sense of irony—as he confesses concern that Congress might one day hold him and others accountable for taking liberties with national and international law.

It seems likely that then-White House counsel Alberto Gonzales and David Addington counseled Tenet that his concerns were quaint and obsolete and, alas, they may have been right, the way things have been going. But Tenet apparently entertained lingering misgivings—perhaps even qualms of conscience.

In the immediate post-9/11 period, Tenet says he told the president “our only real ally” on the Afghan border was Uzbekistan, “where we had established important intelligence-collection capabilities.” We now know from UK Ambassador to Uzbekistan Craig Murray that those “collection capabilities” included the most primitive methods of torture, including boiling alleged “terrorists” alive.

Tenet adds that he stressed the importance of being able to detain unilaterally al-Qaeda operatives around the world. His worries shine through the rather telling sentences that follow:

“We were asking for and we would be given as many authorities as CIA ever had. Things could blow up. People, me among them, could end up spending some of the worst days of our lives justifying before congressional overseers our new freedom to act.”
—At the Center of the Storm, p. 177-178

Tenet need not have worried. He would be shielded from accountability by a timid Congress as well as an arrogant White House able to arrogate unprecedented power to itself and to shield those it wished to protect.

Setting the Tone

It was President George W. Bush who set the tone from the outset. After his address to the nation on the evening of 9/11, he assembled his top national security aides in the White House bunker—the easier, perhaps, to foster a bunker mentality. Among them was counterterrorism chief Richard Clarke, who quoted the president in his memoir:

“I want you to understand that we are at war and we will stay at war until this is done. Nothing else matters. Everything is available for the pursuit of this war. Any barriers in your way, they’re gone. Any money you need, you have it. This is our only agenda...

“I don’t care what the international lawyers say, we are going to kick some ass.”
—Against All Enemies, Free Press, 2004

Clarke, of course, took his book’s title from the oath of office we all swore as military officers and/or senior government officials: “To defend the Constitution against all enemies, foreign and domestic.”

John Ashcroft, head of the Department of Justice at the time, fell in lockstep with the thrust of the president’s comment dismissing any concern with international law—or, as would quickly be seen, domestic law, as well. With the enthusiastic assistance of David Addington, the affable Ashcroft assembled a cabal of Mafia-like lawyers whose imaginative legal opinions on torture, warrantless eavesdropping, and other abuses mark them forever as “domestic enemies” of the Constitution.

Add Mukasey to this distinguished roster.

Torture: the Hallmark

What is not widely known is that Justice Department-approved torture was first applied on an American citizen, John Walker Lindh, who was captured in Afghanistan in late November 2001. The White House and corporate press immediately sensationalized Lindh as “the American Taliban.”

Jesselyn Radack, a conscientious legal advisor in the Justice Department’s Professional Responsibility Advisory Office, which gives ethics advice to Department attorneys, insisted that Lindh be advised of his rights before any interrogation. Instead, he was tortured mercilessly during the first few days of his internment and denied medical care.

Lindh had had the foolishness and bad luck to be in the wrong place at the wrong time; i. e., in a large group of prisoners rounded up by CIA and Army paramilitary forces—too large a group, it turned out.

A spontaneous uprising took place, and CIA paramilitary officer Johnny “Mike” Spann, who had questioned Lindh just minutes before, was shot dead. Outraged, Spann’s colleagues applied “frontier justice,” totally ignoring the Constitutional cautions of Ms. Radack.

The Department of Justice moved quickly to fire Radack for her principled stand. But she had the presence of mind to save emails providing chapter and verse of the difficult exchanges in which she had insisted on respect for Lindh’s rights as an American citizen. Newsweek carried the story briefly, but neither Congress nor anyone else in the media showed much interest.

Radack’s book recounting this experience, The Canary in the Coalmine: Blowing the Whistle in the Case of “American Taliban” John Walker Lindh, is available on line at: http://www.patriotictruthteller.net/.

Against this backdrop, together with Guantanamo, Abu Ghraib, and prisons in Afghanistan, Iraq, and elsewhere, Patrick Henry’s warning remains a challenge for our time: Are we “lost and undone?” I think not; but we had better get it together soon, for, as Dr. Martin Luther King Jr., cautioned, “There is such a thing as too late.”

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 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