The Verdict in the Jose Padilla Case: The Jury Found Him Guilty, But Questions Remain
By ELAINE CASSEL
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Monday, Aug. 27, 2007

On August 16, a Miami federal jury convicted American citizen Jose Padilla on charges of conspiracy to commit terrorism. Padilla had been held by the U.S. government in solitary confinement as an enemy combatant for over three-and-a-half years before being indicted and held in a civilian jail. All told, Padilla was incarcerated for five years before he was tried.

During the time of military confinement, the government reportedly participated in acts that, at a minimum, run right up to the edge of torture - including injecting Padilla with powerful psychosis-inducing drugs to get him to talk.
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Why did the Administration finally decide to indict Padilla on criminal charges and bring him into the criminal justice system that it had long argued was unequipped to deal with terrorism cases? Most observers believe it was simply the strong indication - via a series of court decisions, including Supreme Court decisions - that if the Administration pressed its claim that it could forever hold an American citizen, without charge or trial and without access to a lawyer or any other human being, it would lose.

Though the Padilla trial has concluded, the case's lessons must not be forgotten. Virtually every terrorism prosecution since 9/11 - and Padilla's was no exception -- has shared seven common features: hype, over-charging, secrecy, blatant constitutional violations, a change of course by the Administration, indictment on lesser charges, and a conviction on these lesser charges. (For details about other cases, see my columns of March 25, 2004, Feb 14, 2005,November 7, 2005,and April 5, 2006). Thus, we forget the Padilla case at our peril, as it exemplifies the Bush Administration's modus operandi.

In this column, I will briefly summarize the history of the Padilla case, then consider the questions it raises--questions to which, I will argue, the public must demand answers.

A Brief Chronology of Padilla's Case

On May 8, 2002, Padilla was "detained" on a material witness warrant. On June 9 of that year, he was reclassified as an "enemy combatant." Then-Attorney General John Ashcroft claimed that Padilla had conspired to detonate a "dirty bomb" in the U.S.

Padilla continued to be kept in solitary confinement without charge for more than three years. A series of court challenges followed. Eventually, the government's procedural maneuvers to avoid accountability left even Michael Luttig, a well-known conservative judge on the conservative U.S. Court of Appeals for the Fourth Circuit, appalled by the Bush Administration's behavior.

On November 22, 2005, Padilla was indicted by a federal grand jury in Miami on charges of conspiracy to commit terrorism. The charges made no mention of any "dirty bomb" plot. By charging him with terrorism crimes, the Administration was assured that there would be little public outrage over holding the American citizen without charge for all those years.
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At trial, the government's only proof of "overt acts" (a necessity for a conspiracy conviction) indicated that Padilla signed an application to attend an al Qaeda training camp in Afghanistan in 2000, and spoke to others about giving aid to terrorists and their organizations. These so-called overt acts are closer to speech than to any genuine action in furtherance of a conspiracy, in spite of the fact that the overt act requirement is designed to ensure that alleged conspirators are not convicted simply for thoughts, speech, or affiliation.

Ironically, the very government that had claimed the civilian criminal justice system was ill-equipped to handle terrorism cases in the first place--citing this as a crucial reason for Padilla's enemy combatant detention - received a swift victory.

Why the American People Must Demand Answers About the Larger Issues the Padilla Case Raises

If the American people truly hold liberty dear, then this conviction will not end this controversy. In my view, there are four key subjects as to which we must demand answers from our government:

First, what precisely was done to Jose Padilla during his detention? Padilla alleges - and credibly so, given the reports of others who have suffered similar fates - that while being interrogated, he was beaten; given psychosis-inducing medications; and endured long periods of sensory deprivation, interspersed with periods of extreme noise and constant bright light designed to disorient him and deprive him of sleep. Photo and videos showing Padilla shackled, chained, and hooded appeared in the New York Times. Human Rights Watch reported on similar methods being used by the CIA on U.S. detainees in various locations. (Joanne Mariner has frequently written about interrogation methods of U.S. detainees for this site in columns of September 26, 2006, September 11, 2006, March 12, 2007, and July 18, 2006.)

The government neatly sidestepped the issue of Padilla's pre-trial treatment by representing that it did not use information obtained through these procedures to make out the case upon which he was ultimately charged and convicted. But how can we trust this representation, when no discovery on this issue was allowed? Doesn't it seem likely, for instance, that Padilla provided information, while detained, that led the government to his co-defendants, who in turn provided information inculpating Padilla?

Let's suppose, however, that the representation that the government used no information obtained during Padilla's detention is precisely true. If so, that leads to a disturbing implication: Whatever the government did to Padilla, did not turn out to be at all necessary to successfully prosecute him. So what was the point? It seems everyone, except the Bush Administration's interrogators, agrees that harsh and coercive tactics do not lead to reliable information.

There is thus a very real possibility Padilla was gratuitously tortured and not in a secret CIA prison abroad, but right here at home, in a Naval brig in South Carolina.

Padilla's attorneys recently brought on his behalf a civil rights suit against the government, alleging, among other things, that the government violated Padilla's Eighth Amendment rights against cruel and unusual punishment. A jury is unlikely to award damages to the unsympathetic Padilla, but the suit may keep this issue in the news, and civil discovery, if permitted, might bring to light the facts of what likely was grossly inhumane mistreatment, if not outright torture.

But the government has yet another trick in its bag that can work to its advantage to keep the truth from the American people: the "state secrets" privilege, which I will discuss below.

Second, why wasn't this prosecution dismissed, or the government made subject to another sanction, based on government misconduct?

A federal district court has the power to dismiss a case when the government has acted unconstitutionally in the investigation stage - as I noted in a prior column. But in Padilla's case, when the motion was made, the judge denied it.

An appellate court could still overturn that ruling, and void the conviction, but such an outcome is exceedingly unlikely. District judges typically enjoy broad leeway from appellate courts in criminal cases, and in this case, the court may fear that upholding a constitutional principle would mean releasing a dangerous person onto the streets.

As with Padilla's civil suit, it is highly unlikely that any court will do anything to benefit Padilla.

Third, should the government be allowed to hold non-American citizens who are legal residents in this country indefinitely and without charge as enemy combatants? Thanks to 2006 legislation, this now cannot happen to American citizens, meaning that the case of Padilla, a citizen, will not precisely repeat itself. But what about legal residents?

A panel of the U.S. Court of Appeals for the Fourth Circuit ruled earlier this year that legal residents may challenge their enemy combatant status. However, the Court has voted to rehear the case en banc, and a government win is not a foregone conclusion.

The case involves Ali Saleh Kahlah al-Marri, a legal resident who has been held in a military prison since December 2001 -- like Padilla, first as a material witness and later as an enemy combatant. Unlike Padilla, however, al-Marri was indicted for financially-related crimes, and then removed from the criminal justice system to enemy combatant status.

Fourth, and finally, should Congress limit the use of the so-called "state secrets privilege"? The privilege allows a court to exclude from evidence, or protect from civil discovery, anything the government claims could harm national security.

The rule dates back to the 1953 Supreme Court decision in Reynolds vs. United States, a case that involved military secrets. Of course this rule has legitimate applications. The release of some secrets may sometimes actually pose a threat to national security. Recently, however, the privilege has been much abused by the Bush Administration, which claims the secrecy privilege against virtually every claim brought against its "war on terror" tactics, ranging from abuses of the Patriot Act, to illegal surveillance of American citizens, to the kidnapping of a non-U.S. citizen mistakenly thought to be a member of al Qaeda.

When the state secrets privilege is raised, judges generally dismiss the case without even the most rudimentary inquiry about the facts behind it. This is truly the government's wild card. It has worked every time--even when the facts at issue have been made public. Congress should put limits on this rule of evidence, which has become the government's "get-out-of-jail-free" card.

There is a glimmer of hope that the treatment Padilla and other prisonsrs of the U.S. government have suffered will have consequences for some of the interrogators. The American Psychological Association (APA) last week adopted a rule that none of its members could aid the government in using coercive interrogation tactics against detainees, wherever they may be held.

Members found to have done so will be sanctioned. This decision was made after credible reports of psychologists having assisted in interrogations, including by helping civilian and military interrogators find the psychological "weak spots" that could be exploited to coerce information. Because many states rely on the APA to credential clinical psychologists, this rule could have some teeth.

But private action can't begin to rectify or reverse the abuses of the Bush Administration.

Sure, the government won in the Padilla case. But it wasn't Padilla who was the only loser. Because the government did not, and likely will not, pay a price for wholesale violations of law and basic human rights, we are all losers in that our level of human rights is diminished.