Padilla Case a Source of Deep Shame for America

by , August 19, 2007

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.

Read more by Alan Bock