Fighting an uphill battle against fascism.

His lawyers are suing federal officials, alleging that they played key roles in his military detention and interrogation. Shirley Henderson/AP

Padilla sues US officials over confinement

Despite his conviction on terror conspiracy charges, his lawyers say he suffered 'psychological abuse' during military detention.

By Warren Richey | Staff writer of The Christian Science Monitor

Convicted Al Qaeda operative Jose Padilla is seeking to hold former Defense Secretary Donald Rumsfeld and 59 other US officials responsible for what his lawyers say were abusive and unconstitutional tactics used against Mr. Padilla while he was held in military custody as an enemy combatant from 2002 to 2006.

Lawyers working on Padilla's behalf filed the civil lawsuit earlier this year in federal court in South Carolina. It was publicly disclosed by the lawyers this week.

"Mr. Padilla suffered gross physical and psychological abuse at the hands of federal officials as part of a scheme of abusive interrogation intended to break down Mr. Padilla's humanity and his will to live," the 30-page complaint says.

"The grave violations suffered by Padilla were not isolated occurrences by rogue lower-level officials," the suit says. Besides Mr. Rumsfeld, it names Defense Secretary Robert Gates, former Attorney General John Ashcroft, former Deputy Secretary of Defense Paul Wolfowitz, and former Defense Intelligence Agency Director Lowell Jacoby, among others, who "personally ordered and/or approved Mr. Padilla's detention and interrogation program."

Last week, Padilla was found guilty by a Miami jury of conspiring with Al Qaeda to engage in violent jihad. Federal prosecutors said he attended a training camp in Afghanistan. He faces a potential life sentence in prison.

Some analysts have pointed to Padilla's conviction as vindication of the Bush administration's alleged harsh treatment of him at the US Naval Consolidated Brig in Charleston, S.C., prior to his transfer to the criminal justice system in early 2006. But other analysts say that regardless of the guilty verdict in Miami, significant constitutional and other legal issues surrounding Padilla's treatment by the military remain unresolved.

Chief among them is whether a US citizen, like Padilla, who was arrested on American soil, can be stripped of most of his constitutional rights while being held in military custody and interrogated as an enemy combatant. Padilla was held at the brig for 43 months.

According to the court docket, a Justice Department lawyer is representing each of the named defendants. Andrew Ames, a Justice Department spokesman, said the government would have no comment on the pending case.

The defendants have been ordered to respond to the suit by Oct. 15.

A Defense Department spokesman also offered no specific response to the lawsuit, but repeated earlier statements that all detainees in the war on terror are treated humanely.

Padilla's lawyers are asking US District Judge Henry Floyd to declare Padilla's treatment in the brig unlawful and in violation of the Constitution. They are also asking the judge to award damages of $1 against each of the potential 60 defendants.

Although Padilla's lawyers are not asking for millions of dollars in damages, the case raises landmark constitutional issues dealing with the scope of the president's power as commander in chief to sweep aside many of the constitutional rights of citizens whom he determines are enemy combatants. The suit is also significant because it is the only means available of subjecting Padilla's military detention to the independent scrutiny of the federal judiciary.

"This is the American people's last chance to know what happened behind the closed doors in Charleston, and the last chance for a court to determine if what happened is consistent with our Constitution and values," says Jonathan Freiman, one of Padilla's lawyers who also works with the National Litigation Project at Yale Law School.

Unlike the Abu Ghraib scandal, which has involved the prosecution of a few low-level individuals, the Padilla lawsuit seeks to hold the chain of command accountable. In addition to cabinet-level officials, it seeks to identify and hold accountable key brig staff members, military and other government lawyers, medical and psychological staff members, brig guards, and Padilla's interrogators. Most of the prospective defendants have not yet been identified by name in the suit.

Padilla was subjected to sleep deprivation, stress positions, prolonged isolation, and sensory deprivation, among other interrogation techniques, the suit says. "These procedures were calculated to and actually did disrupt profoundly his senses and personality," the complaint says. It was done to "destroy Mr. Padilla's ordinary emotional and cognitive functioning and break his will, in order to extract information from him and punish him."

The government held Padilla for two years without any outside contact, including with his lawyers. When that policy changed, government officials warned Padilla not to reveal any conditions of his confinement to his lawyers. They told Padilla that his lawyers were not trustworthy and were actually working for the government, the suit says.

If true, this would amount to a government effort to undermine the ability of Padilla's lawyers to learn of Padilla's actual conditions of confinement and effectively challenge them in court.

Padilla was denied access to mental health care, the complaint says. Military officials "deliberately caused Mr. Padilla to undergo extreme psychiatric stress without providing any psychiatric care," the suit says. They denied this access even after Padilla's lawyers reported "signs of psychiatric distress in Mr. Padilla, such as involuntary twitching, and self-inflicted scratch wounds on his body."

The suit also says that two years into his military detention brig staff grew so concerned about Padilla's psychological distress from his prolonged isolation that they asked for permission to at least allow him to eat his meals with another prisoner. The request was denied.

One major hurdle for Padilla's civil suit is whether the government will ask Judge Floyd to dismiss it on grounds that any open-court discussion of Padilla's interrogation and treatment in the brig would reveal state secrets.

Legal analysts are divided on whether a judge would throw out Padilla's case should the government invoke the so-called state secrets privilege. A lawsuit filed by a German citizen mistakenly held and interrogated in secret locations overseas by the Central Intelligence Agency was dismissed on those grounds by a federal judge in Virginia. In March, the action was upheld by the Fourth US Circuit Court of Appeals, which also has jurisdiction over cases in South Carolina. That case has been appealed to the US Supreme Court.

Original article posted here.

The legal disgrace of the Jose Padilla sham show trial

Padilla Case a Source of Deep Shame for America

by Alan Bock

The news story in the New York Times actually painted the conviction Thursday of terrorism suspect Jose Padilla as "a significant victory for the Bush administration." The L.A. Times suggested something rather similar. It was far from that. If anything, it was a repudiation of the way the administration handled his case. But that doesn’t begin to capture the deep shame (or anger) Americans should feel at the way the government handled the case. It’s something of a textbook illustration of how war, declared or undeclared, as Robert Higgs explained in detail in his classic book, Crisis and Leviathan, not only leads to government bloat, but to undermining the kinds of civil and other liberties and fair-minded execution of justice on which this country used to pride itself. Mr. Padilla, 36, is the former Chicago gang member who converted to Islam and became sympathetic to jihadism and may well have had direct contact with al-Qaeda. The government’s chief evidence against him was an application form with his fingerprints on it that prosecutors said he filled out to attend an al-Qaeda training camp in 2000. But that’s a far cry from the story the government told when this U.S. citizen was apprehended in Chicago’s O’Hare Airport in 2002. Then-Attorney General John Ashcroft announced then that the government had foiled an "unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb" that would have caused "mass death and injury." We were all invited to be grateful that our brave protectors in the federal government had taken this dastardly plotter off the streets. What happened next was unconscionable. For whatever reason, Mr. Padilla was never charged with anything connected to a "dirty bomb" plot. Instead he was named an "unlawful enemy combatant" and held incommunicado in a military brig for more than three years, with no charges filed against him. As the Christian Science Monitor documented in an extensive series last week, he was subjected to complete isolation, sensory sleep deprivation, with no access to a lawyer or any other human being, and other treatment that Americans used to call torture when done by outright police states. It’s worth quoting at some length from that article to give a flavor of just how deliberately Jose Padilla was tortured: "When suspected al-Qaeda operative Jose Padilla was whisked from the criminal justice system to military custody in June 2002, it was done for a key purpose – to break his will to remain silent. As a US citizen, Mr. Padilla enjoyed a right against forced self-incrimination. But this constitutional guarantee vanished the instant President Bush declared him an enemy combatant. "For a month, agents of the Federal Bureau of Investigation had been questioning Padilla in New York City under the rules of the criminal justice system…. Padilla was delivered to the US Naval Consolidated Brig in Charleston, S.C., where he was held not only in solitary confinement but as the sole detainee in a high-security wing of the prison. Fifteen other cells sat empty around him. "The purpose of the extraordinary privacy, according to experts familiar with the technique, was to eliminate the possibility of human contact. No voices in the hallway. No conversations with other prisoners. No tapping out messages on the walls. No ability to maintain a sense of human connection, a sense of place or time. In essence, experts say, the US government was trying to break Padilla’s silence by plunging him into a mental twilight zone. Padilla was not the only al-Qaeda suspect locked away in isolation. Although harsh interrogation methods such as water-boarding, forced hypothermia, sleep deprivation, and stress positions draw more media attention, use of isolation to 'soften up' detainees for questioning is much more common. "'It is clear that the intent of this isolation was to break Padilla for the purpose of the interrogations that were to follow,' says Stuart Grassian, a Boston psychiatrist and nationally recognized expert on the debilitating effects of solitary confinement. Dr. Grassian conducted a detailed examination of Padilla for his lawyers." As Scott Horton comments on his blog for Harper’s, "Under U.S. military procedures governing the treatment of captured enemy prisoners embodied in a Department of the Army Field Manual, these isolation techniques were banned. The decision to ban them was driven more by concern about their efficacy than legality. It’s well established at this point that they don’t work. In fact, they routinely lead to false statements." In fact, these techniques were almost directly adapted from Soviet techniques. It’s been pretty well established by now that when the "war on terror" began and prisoners started being captured, there was almost nobody, in the CIA or elsewhere, with experience in interrogation techniques that were likely to elicit useful information about other members of a terror cell or planned activities. So they started with handbooks prepared after the "brainwashing" scandal of the Korean War, designed to help potential American POWs resist the kinds of techniques the communists had reportedly used. From there it was a quick step – all too quick, and almost unthinking – to adapt those very techniques to the new circumstances. So that’s what the CIA did to prisoners who were "renditioned" to secret sites overseas, that’s the template used at Guantánamo and Afghanistan and Abu Ghraib, and that’s the template used for a prisoner like Jose Padilla. We will probably never know whether those techniques actually elicited any potentially useful information from Jose Padilla. But we can be pretty sure that they broke his spirit. He was so dispirited when it finally came time for him to go to trial that his attorneys tried to get him declared incompetent to stand trial. He was strangely passive throughout the trial. He had been broken, much as a horse is "broken" to bend to the will of the master. Even as the U.S. government was breaking Jose Padilla, it was also systematically denying him the most fundamental legal rights of a citizen. As Yale professor Jack Balkin put it: "It’s important to remember that the Bush Administration did everything it could to deny Padilla even the basic right of habeas corpus. It argued that courts had no power to second guess the president’s determination that Padilla was an enemy of the United States and could be held in solitary confinement indefinitely. It argued that no one had the right to contact Padilla and that no one had the right to know what the government was doing to him. It argued that courts should defer to the president’s views about who was dangerous and who was not – that once the president declared a person an enemy, that person had all the process that was due them and courts should respect that determination. "It argued, in short, that the president always knows best. If the president had his way, the government, on the basis of information that never had to be tested before any neutral magistrate, could pluck any citizen off the streets, throw them in a military prison, and proceed to drive them insane. "Those are the powers that the Bush Administration sought. I will not mince words: They are the powers of a dictator in an authoritarian regime. They are the powers of the old Soviet Union, of the military junta in Argentina during the time of the disappeared." The administration finally charged him with activities he and others had undertaken in the 1990s only when it became obvious the Supreme Court would order him charged or released. As Cato Institute constitutional studies senior fellow Robert Levy, who followed the case closely, put it, "for those of us concerned about the rule of law, the Padilla episode is not the way America is supposed to work." The Padilla case’s final or semifinal outcome – it’s unknown as I write whether he will appeal, though his codefendants have said they will – illustrates that with few exceptions the American justice system is fully capable of handling most accused terrorists. The extraordinary (and extraconstitutional) measures the administration has used against Padilla and others are not only outrageous but unnecessary. The only consolation we might take away from this shameful episode is that most American newspapers could understand how reprehensible the treatment of Padilla was and editorialized fairly strongly against it. But the administration has been ignoring editorials and other forms of criticism since it came to power, and its inclination to grab for even more power seems not only not to have abated but to have been whetted. Original article posted here.

Weazl's Repost: Power of Nightmares Part 3 in Honor of the Legal Disgrace that is the Jose Padilla Verdict

Fraudulent farce of Kafkaesque "Justice" being exposed

Padilla “terrorism support trial” unravels

By Alex Lantier

The US government’s “terrorism support trial” against Jose Padilla and two acquaintances, Adham Amin Hassoun and Kifah Wael Jayyousi, is rapidly unraveling as the prosecution continued with its case this week. Even though US District Judge Marcia Cooke has let the prosecution introduce irrelevant evidence and proceed despite procedural violations, it is clear the prosecution is grasping at straws to make a case against the accused.

Padilla, a US citizen, was arrested at O’Hare Airport in Chicago in May 2002, imprisoned and held without charges or access to a lawyer, in breach of fundamental democratic rights. The Bush administration declared that Padilla was an imminent terrorist threat to the US, planning to explode radioactive “dirty bombs” in US cities. Padilla has stated that he was tortured for three and a half years in a US military brig—held in total solitary confinement, often in painful stress positions, deprived of sleep, and force-fed psychoactive drugs such as LSD and PCP meant to act as “truth serums.”

The trial of Padilla, whom the prosecution had verbally downgraded from a “terrorist” to a “terrorism support” suspect while dropping any talk of a “dirty bomb” plot, began in May 2007. The proceedings have many times over justified an earlier assessment of Cooke, who euphemistically described the prosecution’s case as “light on facts.”

The prosecution is attempting to establish that Jose Padilla’s friends, Hassoun and Jayyousi, tried to recruit Padilla for terrorist actions in the Middle East. In doing so, it is relying on a massive archive of wiretaps of the three men’s phone conversations.

In the mid-1990s Hassoun and Jayyousi apparently helped Padilla, a recent convert to Islam, travel to Egypt to try to study to become an imam at the prestigious al-Azhar University in Cairo. They also sent money abroad to various parts of the Muslim world as charitable donations that prosecutors alleged were destined for terrorist groups.

The prosecution has sought to explain the absence of any discussion of terrorism in the recorded conversations by claiming that the three were speaking in code. Thus “soccer equipment” supposedly meant guns, “eating cheese” meant violent jihad, and so forth.

This aspect of the prosecution’s case against Padilla collapsed when lead FBI agent James T. Kavanaugh admitted, under cross-examination by defense lawyers, that Padilla did not in fact use any of these alleged “code words” in his phone conversations. However, by this point jurors had already listened to many days of private conversations between Padilla, Hassoun, and Jayyousi. In these conversations, Padilla mainly described the difficulties of adjusting to his life in Egypt, his struggle to master Arabic, and the widespread suspicions amongst Islamic circles that he might be a US spy sent to monitor them.

The only significant piece of physical evidence for the prosecution is a “mujahideen identification form,” allegedly discovered by US forces in Afghanistan, that bears an alleged alias of Padilla and on which the government says his fingerprints have been found.

On Friday, Rohan Gunaratna, described as a “terrorist expert” by the prosecution and the media, testified that the document was similar to others he has examined relating to Al Qaeda. Gunaratna insisted that the camp Padilla is said to have attended was where “they trained people to kill.”

Gunaratna has made a name and career for himself by testifying and giving media appearances in support of cases against alleged terrorist suspects. His credibility as an “expert” on these matters is extremely strained, however. For example, he quickly shifted his position on David Hicks, the Australian prisoner who was held for years in Guantánamo Bay, after the US announced it would try him by military commission. (See “The Australian media and terrorism ‘expert’ Dr Rohan Gunaratna”)

In fact, there is no independent evidence that Padilla ever traveled to Afghanistan. Padilla’s lawyers have argued that Padilla’s fingerprints on the form probably came from when he was handed the form while in US custody.

Given the unsubstantiated allegations against Padilla that US officials have already made and dropped, there is no reason to suppose that this “evidence” is any more genuine. The defense is due to cross-examine Gunaratna next week.

In an attempt to use widespread US hatred of Osama bin Laden to impugn the defendants, the prosecution has repeatedly referred to bin Laden and Al Qaeda in its arguments. As proof of Hasson’s and Jayyousi’s terrorist inclinations, it cited the fact that FBI phone taps of Hassoun and Jayyousi picked up a discussion of a 1997 CNN interview between Osama bin Laden and reporter Peter Arnett. In the interview, bin Laden described the US as “unjust” and “tyrannical” and praised “heroes” who attacked US military forces.

Prosecutors insisted on showing a video of the interview at the trial. Defense lawyers quickly pointed out that there was no evidence Padilla had ever seen the bin Laden interview, and that it was not relevant to the case against Padilla as bin Laden discussed attacks on US forces, for which Padilla was not recruited, even according to the prosecution’s allegations. Despite the inflammatory and irrelevant character of the evidence, the judge ruled that the prosecution could proceed with showing the video.

The bin Laden interview also fails to provide any meaningful evidence against Hassoun and Jayyousi. In their phone conversations, they agreed with the description of US foreign policy as “unjust” and described bin Laden’s performance in the interview as “powerful,” but were also heard to describe bin Laden as “scary.” The entire bin Laden interview issue therefore appears to have been a red herring—a way for the prosecution to associate bin Laden with the defendants in jurors’ minds.

In a further trial mishap, defense lawyers argued earlier this week for a mistrial after some jurors witnessed one of the defendants in chains, a violation of trial procedure since it could prejudice the jury. The judge ruled against the defense and allowed the trial to continue.

The trial of Padilla is part of a long process of abuse, shifting rationales, and sensational charges. When Padilla was arrested, the media trumpeted his alleged actions in order to bolster government fear-mongering over a supposedly imminent terrorist threat. His trial, by contrast, has been virtually ignored, now that these charges have been deflated.

When, in November 2005, after years of secret detention, a Supreme Court intervention threatened to bring up the Bush administration’s practice of extra-legal detention, Padilla was hastily transferred to a Florida criminal court. US officials started cobbling together accusations against him of conspiracy and aid to terrorists abroad. The fact that the “dirty bomb” allegations were dropped was a clear sign that they were fabricated to begin with.

Padilla’s attorneys’ repeated efforts to get the case dismissed on the basis of grievous procedural errors were turned down. In October 2006, they argued that the US government had forfeited its right to try Padilla by torturing him, based on the US legal tradition that if treatment of the accused “shocks the conscience” the case against him must be thrown out.

In February 2007, his attorneys presented detailed testimony that Padilla suffered from serious mental impairment as a result of years of torture and was unable to participate in his own defense. In both cases, the judge allowed the case to proceed.

Original article posted here.

The Supposedly Most Dangerous American

The Anticlimactic Trial of Jose Padilla

JURIST Guest Columnist Stephen Vladeck of the University of Miami School of Law says that for all the attention being paid to the trial of Jose Padilla, the proceeding will not address the critical legal question of whether the US government can subject one of its own citizens to indefinite military detention...

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The central problem with the federal criminal prosecution of one-time alleged “dirty bomber” Jose Padilla, now underway in Miami, is that the trial itself will not provide any resolution to the real question that the Padilla case has always raised: Whether the U.S. government can subject U.S. citizens arrested on U.S. soil to incommunicado military detention (and, allegedly, to mental and physical abuse while in military custody).

The reason why the Padilla trial will provide no resolution of this fundamental question is simple enough: Federal district judge Marcia Cooke, who is presiding over the trial of Padilla and his two co-defendants, has made clear over a series of pre-trial rulings that Padilla’s military detention is completely irrelevant for purposes of his criminal trial, so long as the government does not introduce any evidence obtained in conjunction with that detention. All too willing to comply, the government itself has embraced this bifurcated understanding of Padilla’s confinement, going so far as to argue that the Justice Department cannot be held responsible for any unlawful actions of the Department of Defense — that the right hand simply can’t be called to account for the actions of the left.

Legally, Judge Cooke may well be correct. The government is not attempting to introduce evidence obtained from Padilla during his 1307-day stay in a South Carolina Navy brig, and so the question whether that detention (or any of the government’s actions toward Padilla during it) was unlawful would not seem to implicate any aspect of the criminal charges Padilla now faces. In effect, then, the criminal case against Padilla has proceeded upon the theory that his “incarceration” began the day he was transferred to the custody of the Department of Justice in January 2006.

But what about the previous three and a half years?

The question of the legality of Padilla’s military detention as an “enemy combatant” divided the four courts to consider it. In the first round of litigation, the Southern District of New York held in December 2002 that Padilla’s detention was authorized, a decision reversed by the Second Circuit one year later. After the Supreme Court vacated the Second Circuit’s decision on jurisdictional grounds and ordered Padilla to re-file his habeas petition in South Carolina, the South Carolina district court held that Padilla’s detention was unlawful, only to be reversed by the Fourth Circuit in September 2005. And it was just before the merits of Padilla’s case returned to the Supreme Court that the government indicted Padilla and sought to transfer him to civilian criminal custody, leading to the Supreme Court’s divided decision to deny certiorari last April. As Justice Kennedy wrote for himself, Chief Justice Roberts, and Justice Stevens,

In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises. Padilla is now being held pursuant to the control and supervision of the United States District Court for the Southern District of Florida, pending trial of the criminal case. In the course of its supervision over Padilla’s custody and trial the District Court will be obliged to afford him the protection, including the right to a speedy trial, guaranteed to all federal criminal defendants.

In short, the Court would only consider the merits of Padilla’s detention if the government sought to transfer Padilla back to military custody. Otherwise, the question was purely “hypothetical,” at least according to Justice Kennedy.

Thus far, at least, the government has given no indication of any intent to do so. Nor, I think, will it, irrespective of the verdict, for in the very next passage of his opinion concurring in the denial of certiorari, Justice Kennedy strongly hinted that any such action would be met with prompt judicial recourse, “to ensure that the office and purposes of the writ of habeas corpus are not compromised.” Thus, in denying review, the Supreme Court seemed to make rather clear that the criminal trial is now the government’s one shot at Jose Padilla, denying to Padilla, at the same time, a definitive answer to the legality of his military detention.

If the courts were unwilling to resolve the legality of Padilla’s detention once he was transferred to civilian criminal custody, and if the government never transfers Padilla back to military detention, the only remaining means for Padilla to obtain resolution of that question would be a damages lawsuit. But the Supreme Court has long recognized that damages suits are unavailable against federal officers when the law allegedly violated by the officer was not “clearly established.” Given the split of authority on whether Padilla’s detention was unlawful in the first place, it seems to follow that Padilla would have an extremely uphill battle in any future damages suit, whether he is acquitted of the present charges against him or not.

That reality thereby renders much of what is to come in Padilla’s trial anticlimactic. The outcome of the trial will not in any meaningful way shape subsequent resolution of the unresolved questions relating to Padilla’s military detention. It also suggests why Padilla’s case may be such a dangerous precedent whether Padilla is convicted or not. If the government can hold U.S. citizens in military detention up until the moment a court is set to rule against them—as most agree the Supreme Court was in the fall of 2005—and then avoid that review by indicting the detainee, what is to stop it from employing similar tactics in future cases?

Former Judge Luttig, who wrote the Fourth Circuit’s opinion upholding Padilla’s military detention in September 2005, wrote separately in December 2005 to express his concern at the message sent by the government’s change in tactics:

although the various facts [the government] has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake—an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror—an impression we would have thought the government likewise could ill afford to leave extant.

Today, over five years after Padilla was initially arrested at Chicago’s O’Hare Airport, these impressions remain. And they will still be present when Padilla’s criminal trial is scheduled to conclude in August, whether he is convicted or not.


Stephen Vladeck is a professor at the University of Miami School of Law; as of Fall 2007 he will be joining the faculty at American University Washington College of Law. He has been involved in the Padilla litigation at various stages, and helped to draft several amicus briefs before the US Second Circuit and the US Supreme Court in Padilla I.

Original article posted here.

A Kafkaesque Journey of a Government Gone Mad

Incompetence and Egregious Government Misconduct
The Tragic Case of Jose Padilla

By ELAINE CASSEL

Last week, U.S. District Judge Marcia Cooke ruled that American citizen Jose Padilla, who is now facing terrorism charges in Miami, Florida, is competent to stand trial.

In spite of the troubling legal and moral aspects of this case, Judge Cooke's ruling was in line with what many other judges would have done in her position.

In order to put the competence issue in context, it is necessary to review the long and unprecedented history of the U.S. government's cases against Jose Padilla. Cases involving Padilla have been before federal courts in New York, South Carolina, and now Florida, and back and forth to the U.S. Supreme Court on three occasions.

It all began with Padilla's arrest on May 8, 2002, at Chicago's O'Hare Airport, on a material witness warrant, issued by a New York federal district court in connection with a grand jury investigation into the September 11 terrorist attacks.

Donna Newman, a private attorney appointed by a New York City federal judge to represent Padilla, filed a motion to vacate the warrant. Before the motion could be decided, however, Padilla was moved, in the dark of night and without notice to Newman, to a Navy brig in Charleston, South Carolina. President Bush had named him an "enemy combatant." The government claimed, at the time, that Padilla was part of a plot to detonate "dirty bombs" and blow up apartment buildings in the U.S. (Later, as noted below, it developed that the government apparently could not prove these charges.)

Meanwhile, even though Padilla was in South Carolina, Padilla's attorneys fought for the release of their client in the New York district and appellate courts. Both courts ruled in favor of Padilla . The government then sought review from the U.S. Supreme Court, arguing, among other things, that the New York courts had no jurisdiction due to Padilla's move to South Carolina. The Supreme Court agreed, and, in Rumsfeld v. Padilla, in June 2004, the Court decided, 5-4, to dismiss the case as improperly filed.

Padilla's attorneys then began anew in challenging Padilla's detention as an enemy combatant. They refiled their case in U.S. District Court in Charleston, South Carolina. The federal district court judge ordered Padilla charged or released within 30 days. The government promptly appealed. The U.S. Court of Appeals for the Fourth Circuit, the most politically conservative federal appeals court in the country, reversed the district court.

Of course, Padilla's attorneys appealed this ruling to the Supreme Court. Court watchers expected this to be a crucial test of the limits--if any--the high court would put on the Bush Administration's claim of sweeping wartime powers. Then, the case took a surprising turn.

Weeks before the Supreme Court was scheduled to vote on whether to accept the appeal, the government notified Padilla's attorneys that it was transferring him to Miami, Florida, to face criminal charges in federal court for involvement in a vague terrorist conspiracy. The indictment was devoid of any mention of dirty bombs or blowing up apartment buildings -- presumably because these prior claims could not be proven.

Even though Padilla's attorneys agreed to the transfer--after all, what they wanted for their client was a day in court--in an amazing move, the Fourth Circuit Court of Appeals refused to allow it. An angry Judge Michael Luttig -- an ardent Bush supporter who was reportedly short-listed for what became Justice Samuel Alito's seat on the Supreme Court -- accused the government of playing fast and loose with the facts and with the court. How could Padilla be an enemy combatant one day, and a criminal defendant the next? The government appealed the Fourth Circuit's order to the Supreme Court, which found no legal basis to thwart the Justice Department's request.

Meanwhile, the petition for review of the initial Fourth Circuit ruling -- upholding Padilla's "enemy combatant" detention -- was still pending before the Supreme Court. Indeed, it appeared that the reason the government transferred Padilla to Miami was in a bid to moot the chance review would be granted.

Doubtless, the government did so because it did not want to take the chance of another ruling like Hamdi v. Rumsfeld. There, writing for a 5-4 majority, Justice O'Connor famously stated that war is not a blank check for the president. Accordingly, the Court held that Yaser Hamdi (a dual citizen of the U.S. and Saudi Arabia captured abroad) could not be held indefinitely in a military brig as an "enemy combatant." (Shortly after the Court's ruling, the government released Hamdi, and flew him to Saudi Arabia -- an action that severely undermined the rationale for his detention, which had occurred based on the claim he was a highly dangerous enemy combatant.)

Unlike Hamdi, however, Padilla never got his day before the high court. In April 2006, only three Justices (four are needed) voted to grant the appeal. Two written opinions accompanied the decision to decline review. Both Justice Kennedy (who wrote in favor of the decision) and Justice Ginsburg (who argued that review should have been granted) focused on the potential mootness issue -- caused by the fact Padilla was no longer confined based on an "enemy combatant" designation.


The Incompetence Claim

Since April 2006, the focus has shifted to Judge Clarke's courtroom. She dismissed some of the criminal charges against Padilla, finding them insufficiently supported by facts, only to have them reinstated by the U.S. Court of Appeals for the Eleventh Circuit.

Last week, with Padilla's case set for trial in April, Judge Clarke turned her attention to Padilla's claim that he was mentally incompetent to stand trial.

In support of this claim, the defense's mental health experts testified that Padilla was suffering from post-traumatic syndrome (PTSD), an anxiety disorder suffered by people exposed to an extreme trauma.

People with PTSD experience three different kinds of symptoms: reliving the trauma through flashbacks and dreams; becoming upset when faced with reminders of the traumatic event; and avoiding reminders of the trauma by self-isolation and emotional detachment.

PTSD is a weak diagnosis on which to hang an incompetence defense. The Supreme Court made clear in 1985, in Ake v. Oklahoma, that to be deemed competent to stand trial, a defendant need only be able to understand the charges against him, the possible penalty if he is convicted, the adversarial nature of the legal process, and be able to assist his attorneys in his defense.

Padilla's attorneys have focused on that last requirement -- Padilla's ability to assist them in his defense. They have said that, for example, Padilla was reluctant to discuss the case with them, and that he shut down, refused to talk to them, and appeared panicked or distraught when they attempted to question him. They have reported that he sometimes seemed unable to distinguish between them and his government prison guards and interrogators, at whose hands he said he was repeatedly tortured. They added, as well, that he refused to listen to tapes of his prison interrogation -- tapes that will be a significant part of the prosecution's case against him at trial.

Judge Cooke nevertheless found that Padilla was competent to assist in his defense. It was clear that her own observations of Padilla in her courtroom factored into her decision. She noted that over the months he had been in her courtroom, he had appeared attentive to the proceedings and his attorneys. She

also referred to an affidavit he signed concerning his claims of torture. Padilla's attorneys could not have ethically presented the affidavit to the court, had Padilla not been the source of the affidavit, and read and understood what he was signing. Finally, it may have affected the judge's decision that, on the first day Padilla appeared before her, she was able to order that his chains and shackles be removed, as he appeared to be no threat to courtroom safety, and this has continued. Indeed, his prison guards have testified that he is a docile prisoner.

The Kind of Defendants That Are -- And Are Not -- Found to Be Mentally Incompetent

That Padilla looked and acted "competent" points out the practical realities relating to a claim of incompetence. Only a handful of defendants are found incompetent. When they are, it is generally obvious, even to an untrained observer, that they are mentally ill. R

egardless of the psychiatric label, a defendant who appears to be in his "right mind" -- that is, one who is well behaved, and is neither hallucinating nor talking gibberish -- simply is not going to be found incompetent.

Consider the case of Russell Weston, who in 1998 stormed the U.S. Capitol building with a .38 caliber handgun. He was on a mission, he said, to dismantle the "Ruby Satellite System" that was spreading a deadly disease. He shot and killed two police officers because, he said, they were getting in the way of his reaching the controls of the system. However, he explained, they only appeared to be dead; they would wake up when he gave the order.

Weston was found incompetent, and ordered to be medicated in order to regain competence. To this day he is hospitalized in a North Carolina federal prison hospital, still being medicated. Even the government's experts say that Weston will likely never be competent to be tried.

A more recent example is Andrea Yates, the Texas mother who murdered her five children by drowning. She was originally found to be incompetent because she was diagnosed as being profoundly depressed reported auditory hallucinations. She was hospitalized, medicated, found competent, and tried within three months.

Neither Padilla's diagnosis nor his demeanor fit the stereotype of an incompetent defendant.


Will Judge Clarke Dismiss the Case Based on Egregious Government Misconduct?

Still pending, before Judge Cooke, is Padilla's motion to dismiss the charges based on the government's egregiously inhumane treatment.

Affidavits from Padilla and his attorneys detail outrageous conditions of confinement, particularly while he was held as an "enemy combatant," and not yet charged with a crime. Allegations not disputed by the government include long periods of sensory deprivation, interspersed with periods of extreme noise and constant bright lights to deprive Padilla of sleep; solitary confinement for now more than five years; and denial of access to an attorney for two years. The government disputes Padilla's sworn allegations of physical torture that include beatings, injection with mind-altering drugs, and denial of medical treatment.

If Padilla's motion to dismiss on these grounds were granted, it could benefit the hundreds of prisoners at Guantanamo Bay, Cuba, who have been held in similar conditions for more than five years, too. But there is little chance, in my view, that the motion will be granted.

In the 1973 case of U.S. v. Russell, the Court's opinion -- written by then-Justice Rehnquist -- conceded that there could, in theory, be an instance where government mistreatment of a criminal defendant is such an outrageous deprivation of due process that the charges against him should be dismissed. Yet besides this, there is little precedent to support Padilla's request.

Moreover, even if Judge Cooke were to dismiss the charges -- for she has indicated she is appalled by the conditions of Padilla's confinement -- the government would doubtless appeal to the Eleventh Circuit, and Judge Cooke likely would be reversed again.

I predict that some day the Supreme Court will hear the merits of Jose Padilla's case. It will not be able to stand on technicalities forever. Whatever it does decide about the constitutionality of the way Padilla has been treated by his own government for years, the decision will have profound importance to every American who presumes, perhaps wrongly, that rights of due process, the rule of law, and fair play--long held to be hallmarks of our justice system--still mean something today.

Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She doesn't like being lied to. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: ecassel1@cox.net

Original article posted here.

Crimes of My Country (against our own Citizens)

The US psychological torture system is finally on trial

America has deliberately driven hundreds, perhaps thousands, of prisoners insane. Now it is being held to account in a Miami court

Naomi Klein

Something remarkable is going on in a Miami courtroom. The cruel methods US interrogators have used since September 11 to "break" prisoners are finally being put on trial. This was not supposed to happen. The Bush administration's plan was to put José Padilla on trial for allegedly being part of a network linked to international terrorists. But Padilla's lawyers are arguing that he is not fit to stand trial because he has been driven insane by the government.

Arrested in May 2002 at Chicago's O'Hare airport, Padilla, a Brooklyn-born former gang member, was classified as an "enemy combatant" and taken to a navy prison in Charleston, South Carolina. He was kept in a cell 9ft by 7ft, with no natural light, no clock and no calendar. Whenever Padilla left the cell, he was shackled and suited in heavy goggles and headphones. Padilla was kept under these conditions for 1,307 days. He was forbidden contact with anyone but his interrogators, who punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds. Padilla also says he was injected with a "truth serum", a substance his lawyers believe was LSD or PCP.

According to his lawyers and two mental health specialists who examined him, Padilla has been so shattered that he lacks the ability to assist in his own defence. He is convinced that his lawyers are "part of a continuing interrogation program" and sees his captors as protectors. In order to prove that "the extended torture visited upon Mr Padilla has left him damaged", his lawyers want to tell the court what happened during those years in the navy brig. The prosecution strenuously objects, maintaining that "Padilla is competent" and that his treatment is irrelevant.

The US district judge Marcia Cooke disagrees. "It's not like Mr Padilla was living in a box. He was at a place. Things happened to him at that place." The judge has ordered several prison employees to testify on Padilla's mental state at the hearings, which began yesterday. They will be asked how a man who is alleged to have engaged in elaborate anti-government plots now acts, in the words of brig staff, "like a piece of furniture".

It's difficult to overstate the significance of these hearings. The techniques used to break Padilla have been standard operating procedure at Guantánamo Bay since the first prisoners arrived five years ago. They wore blackout goggles and sound-blocking headphones and were placed in extended isolation, interrupted by strobe lights and heavy metal music. These same practices have been documented in dozens of cases of "extraordinary rendition" carried out by the CIA, as well as in prisons in Iraq and Afghanistan.

Many have suffered the same symptoms as Padilla. According to James Yee, a former army Muslim chaplain at Guantánamo, there is an entire section of the prison called Delta Block for detainees who have been reduced to a delusional state. "They would respond to me in a childlike voice, talking complete nonsense. Many of them would loudly sing childish songs, repeating the song over and over." All the inmates of Delta Block were on 24-hour suicide watch.

Human Rights Watch has exposed a US-run detention facility near Kabul known as the "prison of darkness" - tiny pitch-black cells, strange blaring sounds. "Plenty lost their minds," one former inmate recalled. "I could hear people knocking their heads against the walls and the doors."

These standard mind-breaking techniques have never faced scrutiny in an American court because the prisoners in the jails are foreigners and have been stripped of the right of habeas corpus - a denial that, scandalously, was just upheld by a federal appeals court in Washington DC. There is only one reason Padilla's case is different - he is a US citizen. The administration did not originally intend to bring Padilla to trial, but when his status as an enemy combatant faced a supreme court challenge, the administration abruptly changed course, charging Padilla and transferring him to civilian custody. That makes Padilla's case unique - he is the only victim of the post-9/11 legal netherworld to face an ordinary US trial.

Now that Padilla's mental state is the central issue in the case, the government prosecutors are presented with a problem. The CIA and the military have known since the early 1960s that extreme sensory deprivation and sensory overload cause personality disintegration - that's the whole point. "The deprivation of stimuli induces regression by depriving the subject's mind of contact with an outer world and thus forcing it in upon itself. At the same time, the calculated provision of stimuli during interrogation tends to make the regressed subject view the interrogator as a father-figure." That comes from Kubark Counterintelligence Interrogation, a declassified 1963 CIA manual for interrogating "resistant sources".

The manual was based on the findings of the agency's notorious MK-ULTRA programme, which in the 1950s funnelled about $25m to scientists to carry out research into "unusual techniques of interrogation". One of the psychiatrists who received CIA funding was the infamous Ewen Cameron, of Montreal's McGill University. Cameron subjected hundreds of psychiatric patients to large doses of electroshock and total sensory isolation, and drugged them with LSD and PCP. In 1960 Cameron gave a lecture at the Brooks air force base in Texas, in which he stated that sensory deprivation "produces the primary symptoms of schizophrenia".

There is no need to go so far back to prove that the US military knew full well that it was driving Padilla mad. The army's field manual, reissued just last year, states: "Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and antisocial behaviour" - as well as "significant psychological distress".

If these techniques drove Padilla insane, that means the US government has been deliberately driving hundreds, possibly thousands, of prisoners insane around the world. What is on trial in Florida is not one man's mental state. It is the whole system of US psychological torture.

· Naomi Klein's book on disaster capitalism will be published this spring; a version of this article appears in the Nation www.nologo.org

Original article posted here.