José Padilla: More Sinned Against Than Sinning

News that José Padilla’s lawyers are seeking to hold former Defense Secretary Donald Rumsfeld and 59 other U.S. officials responsible for "abusive and unconstitutional tactics used against Mr. Padilla while he was held in military custody as an enemy combatant from 2002 to 2006" has temporarily revived the story of the Chicago-born former gang member and Islamic convert. Padilla’s conviction on Aug. 16, in a courtroom in Miami, for "conspiracy to murder, kidnap, and maim people in a foreign country, conspiracy to provide material support for terrorists, and providing material support for terrorists," was announced to whoops of joy from an administration ravenous for all crumbs of comfort, but to a generally muted response in the U.S. media.

An American citizen once regarded as one of the most dangerous terrorists ever apprehended on American soil, Padilla – whose arrest in May 2002 was trumpeted by then-Attorney General John Ashcroft as that of a "known terrorist" who was "exploring a plan" to detonate a radioactive "dirty bomb" in a U.S. city – is due to be sentenced in December (if the verdict does not unravel on appeal). He faces the prospect of spending between 15 years and the rest of his life in jail, even though his profile has shrunk so considerably, that, after once being regarded as a potential mass murderer on a unprecedented scale, he was, in the end, not actually accused of lifting a finger to harm even a single U.S. citizen.

Many of the media outlets that bothered to report the verdict stuck to a narrowly defined script, neglecting to mention Padilla’s long detention without charge or trial, and hailing it, as ABC News did, as a triumphant example of a legal victory in the "War on Terror." This was doubtful. Since the prosecution was allowed to show, on a huge screen, a seven-minute video of a speech by Osama bin Laden that was completely unrelated to the case and lead prosecutor Brian Frazier mentioned al-Qaeda around a hundred times in his opening comments and another hundred times in his closing remarks, the few outspoken critics of the trial were justified in concluding that this was an arrant display of propaganda masquerading as evidence. They were also justified in highlighting the weakness of the actual evidence against Padilla: his fingerprints and personal details on an application form for an "al-Qaeda" training camp in Afghanistan, which he apparently filled out in July 2000, and just seven intercepted phone messages, out of the thousands recorded between 1993 and 2001 featuring Padilla’s co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, in which he purportedly demonstrated his commitment to "violent jihad." It’s also noticeable that, whereas his codefendants were accused of speaking in code, this allegation was not applied to the seven calls featuring Padilla.

Even overlooking the fact that this was, at best, just one notch up from a "thought crime" – and that there may be something wrong with a system in which, as Brian Frazier told the jury, "you can find that the defendants are guilty even if they never killed or harmed anyone – under the law it is the illegal agreement that is the crime" – the brandishing of the application form was enough to convince the jurors of Padilla’s guilt. After a three-month trial, the jurors took only 11 hours to reach a verdict. Noting that this meant that the jurors spent less than one hour of deliberations for each week of trial testimony, whereas "the rule of thumb, [as] any trial attorney will tell you, is that one week of trial testimony usually tracks one day of deliberations," CBS legal analyst Andrew Cohen wrote that both lawyers and reporters were "shocked by the speed of the verdict." According to the New York Times‘ account, one juror said that she "had ‘all but made up her mind’ about the defendants’ guilt before deliberations began."

What makes the verdict particularly distressing for those concerned with justice in the United States, however, is not just the manipulation of the trial by the prosecution and the slimness of the evidence against the once-alleged "dirty bomber." The elephant in the room in Padilla’s case – his detention, in brutal isolation, as an "enemy combatant" for 43 months in a military brig, and its effect on his mental health – was swept aside as though it had never existed, not only during the trial itself, in which the judge, Marcia G. Cooke, explicitly barred both the prosecution and the defense from speaking about it, but also in much of the mainstream media coverage of the verdict.

This is shocking beyond belief. In a country in which far too many people have expressed their utter indifference to the fate of non-Americans detained by their government in the "War on Terror," the treatment of Padilla should at least have set alarm bells ringing. Unlike foreigners, who, according to the president, can be picked up anywhere in the world and imprisoned, tortured, and held forever without charge or trial, American citizens are supposed to be protected against this kind of treatment. Padilla’s case emphatically proves that this is no longer true.

There was, I must admit, a certain amount of uproar and hand-wringing in the U.S. in December 2006, when photos of Padilla, shackled and restrained, wearing blackout goggles and sound-muffling headphones for nothing more dangerous than a walk from his cell to a dental appointment, were published in the New York Times. Momentarily electrified, the media responded with a rush of indignation (perhaps proving, as with the Abu Ghraib scandal, that photos speak louder than words), and articles poured forth describing what had happened to Padilla during the four years and eight months he had then spent in U.S. custody.

Padilla, a former Chicago gang member who had moved to Florida and converted to Islam in 1994, was arrested on May 8, 2002, at Chicago’s O’Hare International Airport, after several years abroad in Egypt, Pakistan, and Afghanistan. He was held for a month as a material witness and interrogated by the FBI, then designated an "enemy combatant" and transferred to a military brig in Charleston, S.C., where, for 43 months, as described by Warren Richey of the Christian Science Monitor, 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." Stuart Grassian, a Boston psychiatrist and "an expert on the debilitating effects of solitary confinement" who conducted a detailed examination of Padilla for his lawyers, said it was "clear that the intent of this isolation was to break Padilla for the purpose of the interrogations that were to follow."

Richey continued:

"Padilla’s cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla’s lawyer was prevented from seeing him for nearly two years. For significant periods of time the Muslim convert was denied any reading material, including the Koran. The mirror on the wall was confiscated. Meals were slid through a slot in the door. The light in his cell was always on."

In addition, as Naomi Klein noted, it was reported that his interrogators – the only people with whom he was allowed any contact – "punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds," and Padilla also stated that he was "injected with a ‘truth serum,’ a substance his lawyers believe was LSD or PCP."

As Richey went on to note, "Those who haven’t experienced solitary confinement can imagine that life locked in a small space would be inconvenient and boring. But according to a broad range of experts who have studied the issue, isolation can be psychologically devastating. Extreme isolation, in concert with other coercive techniques, can literally drive a person insane, [which] makes it a potential instrument of torture." When approved by Donald Rumsfeld for use at Guantánamo, Defense Department lawyers warned that isolation was "not known to have been generally used for interrogation purposes for longer than 30 days," echoing the CIA’s findings, in its declassified 1963 handbook, when the agency warned of the "profound moral objection" of applying "duress past the point of irreversible psychological damage."

According to Stuart Grassian, however, it was "clear from examining Mr. Padilla that that limit was surpassed." After studying the daily activity logs relating to his incarceration, particularly during the period from November 2002 to April 2003, which Padilla himself described as the "terrible time," Grassian discovered that it was "not unusual for Mr. Padilla to go four, five, or six days without even brief [visual checks] by the brig staff, who were, in any event, under instruction not to converse with him." Richey added, "Other than the brief checks by brig guards, Padilla went through stretches of 34 days, 17 days, and 15 days without any human contact," and Grassian concluded that "when he did have such contact, it was inevitably with an interrogator."

As a result, Grassian declared, "Given the extensive research on this issue, much of it funded by the United States government, it follows necessarily that the United States government was well aware of the likely consequences of its conduct in regard to Mr. Padilla." Grassian explicitly condemned a statement in which Vice Adm. Lowell Jacoby, the director of the Defense Intelligence Agency, revealed a portion of the government’s interrogation strategy in an affidavit in 2003. In response to Jacoby’s claim that the "Defense Intelligence Agency’s approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and interrogator," in which "anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool," Grassian stated, bluntly, "What the government is attempting to do is create an atmosphere of dependency and terror."

Quite what rubbish was spouted by Padilla during these years of "dependency and terror" – before he lost his mind to such an extent that his warders described him as "so docile and inactive that he could be mistaken for ‘a piece of furniture‘" – is unknown. His own desperate confessions – and where they led – have yet to be revealed. What is clear, however, is that other confessions, themselves produced under duress by "high-value" detainees held in secret CIA prisons, formed the basis of the "dirty bomb" allegation. According to the government, Padilla approached training camp facilitator Abu Zubaydah (captured in Pakistan five weeks before him) and 9/11 kingpin Khalid Sheikh Mohammed (captured in 2003) with plans for the bomb and was apprehended after Zubaydah identified him to the FBI. Less vigorously reported were admissions by the government itself that both Zubaydah and KSM were "skeptical" about the plot. Other insider comments indicated that Zubaydah actually dismissed Padilla as "a maladroit extremist," telling his interrogators that he was so "ignorant" that he believed he could "separate plutonium" from other nuclear materials by "rapidly swinging over his head a bucket filled with fissionable material."

It’s also clear that another man who was picked out by Zubaydah in relation to the same dubious plot – Binyam Mohammed al-Habashi, an Ethiopian-born British resident who was captured in Pakistan a week after Zubaydah – suffered even more severely than Padilla. Rendered by the CIA to Morocco, where he was tortured for 18 months and had his penis repeatedly cut by razors, and then transferred to Guantánamo via the CIA’s own "Dark Prison" near Kabul – a medieval torture prison with the addition of 24-hour amplified music and noise – Mohammed admitted to being a part of the whole Zubaydah-KSM-Padilla "dirty bomb" plot, but later explained that he had confessed to whatever his U.S.-directed Moroccan torturers told him to, and had never even met Padilla.

While Binyam Mohammed remains in Guantánamo – unsure if the authorities will release him (as requested by the British government) or will attempt to reinstate the charges against him in a military commission (following their collapse in June 2006, when the Supreme Court judged them illegal, and their reintroduction via last fall’s Military Commissions Act) – the "dirty bomb" allegation against Padilla was dropped in November 2005, just days before the Supreme Court was due to look at the legality of his detention. Apparently the administration was unwilling to allow Zubaydah and Khalid Sheikh Mohammed to testify, lest they reveal that they had been tortured.

Unlike in Guantánamo’s "enemy combatant" tribunals – and in the military commissions, which the administration is still trying to revive after further setbacks in June – evidence obtained through torture is inadmissible in U.S. courts, because it is illegal, immoral, and unreliable. And however much the administration may try to deny it, the "dirty bomb" allegation is a perfect demonstration of the hole into which the administration has dug itself: a "plot" whose existence was only ever announced through torture – whether of Abu Zubaydah, Khalid Sheikh Mohammed, José Padilla, or Binyam Mohammed – that lives only in this world of tortured confessions and cannot be verified in the real world.

Once Padilla’s "enemy combatant" status was dropped, along with the "dirty bomb" story ( in marked contrast to Binyam Mohammed, whose alleged involvement in the plot limped on until the Supreme Court struck down the military commissions eight months later), he was charged with the vague, motive-based crimes for which he was eventually convicted. Padilla was then moved to a legally recognized detention facility, where he was located when the photos of the world’s most high-security dental visit were revealed in the New York Times.

As a result of the revelations about Padilla’s mental state in the Times article, it looked, for a while, as though the trial might not even go ahead. In February 2007, Naomi Klein, in an optimistic report for the Nation, suggested, "Something remarkable is going on in a Miami courtroom. The cruel methods U.S. interrogators have used since September 11 to ‘break’ prisoners are finally being put on trial." In the end, however, as noted above, District Judge Marcia G. Cooke pulled the plug on the dissenters, and six months later, as Padilla’s trial came to an end, it was as if most of the country had succumbed to collective memory loss.

In the week before the verdict was announced, one journalist at least avoided having his mind wiped clean. Warren Richey’s three-part series on Padilla, which I quoted from above, revisited, in horrific detail, the systematic mental destruction of Padilla that took place during the 43 months that he was illegally imprisoned without trial and tortured by his own government. As also noted above, however, Richey’s was a rare voice in the mainstream media.

Most of the dissenting voices – the ones who realized, with an appalling clarity, that the U.S. government was getting away with torturing its own citizens, and that, in theory, no U.S. citizen whatsoever was protected from similar treatment – peppered the blogosphere. In a shining example of a concerned citizen jolted into a state of near-insomnia by the ramifications, the author of the Talking Dog blog, who has long maintained that the Padilla case is "the most important case of our lifetimes," fulminated that the sweeping aside of an issue that involved "not just our entire Bill of Rights, but the Magna Carta" was effected by a "complicit commercial media [that] won’t even tell us what happened."

Perhaps I’m reading too much into this. Perhaps most Americans are happy to know that, like the worthless foreigners who can be seized, tortured, and imprisoned without charge or trial at the whim of the president, they too can be seized, tortured, and held in a military brig for 43 months, but I strongly suspect that this is not the case. The corollary – as a non-U.S.-citizen like myself is all too aware – is that, unless the issue of Padilla’s treatment is resuscitated and thrust at the administration whenever Bush or his dwindling coterie of cronies declares that America "does not torture," then a viciously dismissive set of double standards is at work.

What the case of José Padilla should demonstrate most of all, to any American who recalls the barriers to tyranny erected in the Constitution and recognizes that the current administration has swept them away, is that not only should American citizens be protected from arbitrary arrest and imprisonment, but those safeguards should also apply to foreigners, including the 359 men still detained in Guantánamo, the tens of thousands imprisoned in Iraq, and the hundreds of others held in secret CIA-run prisons or transferred to torture prisons in third countries.

The Talking Dog blogger is right. It really is that important, and it is for this reason that Padilla’s lawyers are to be commended for filing their lawsuit challenging the president’s power as commander in chief to dismiss the constitutional rights of U.S. citizens designated as "enemy combatants" by asking U.S. District Judge Henry Floyd to declare that Padilla’s treatment in the brig was "unlawful and in violation of the Constitution." As Jonathan Freiman, one of Padilla’s lawyers, said when the lawsuit was announced, "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."

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Author: Andy Worthington

Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.