May 13, 2008 - No. 77 -
Supplement
Sacrificing Rights in the War on
Terror
The José Padilla Case
• Sacrificing
Rights in the War on Terror: The
José Padilla Case
• Subverting the Rule of Law -- The Importance
of the Padilla Case - Jacob Hornberger, CounterPunch
• Padilla Case Offers a New Model of Terrorism
Trial - Adam Liptak, New York Times
• Why Jose Padilla's 17-Year Sentence Should
Disgust All Americans - Andy Worthington, AlterNet
• Padilla Jury Opens Pandora's Box -
Paul Craig Roberts, lewrockwell.com
For Your Information
• Background on the José Padilla Case
- Wikipedia
Sacrificing Rights in the War on
Terror
The José Padilla Case
Accused of plotting with Al-Qaeda to set off a
radioactive "dirty
bomb" in the U.S., American citizen José Padilla was arrested by
U.S.
federal agents in 2002 and held for 3 and a half years as an enemy
combatant. Padilla's detention as an "enemy combatant" (pursuant to the
President's order) was based on the
following reasons: 1) Padilla was "closely associated with al Qaeda, an
international terrorist organization with which the United States is at
war"; 2) He had engaged in "war-like acts, including conduct in
preparation for acts of international terrorism"; 3) He had
intelligence that could assist the United States in warding
off future terrorist attacks; and 4) He was a continuing threat to
American security.
These charges provided the pretext to deny him habeas
corpus
and keep him in military custody in a U.S. naval brig for three and
a half years. Following hearings at various levels of the U.S. courts
regarding Padilla's petition for a writ of habeas corpus, the
charges were
dropped when, to prevent the courts from upholding habeas corpus
in Padilla's case, the U.S. government secured a criminal indictment
against Padilla and transferred him to civilian custody for criminal
prosecution for terrorism. As Jacob Hornberger writing for CounterPunch
points
out, "With the government's clever legal maneuvering, the nation was
left with the Fourth Circuit's decision upholding the enemy-combatant
doctrine and without much of a chance that the Supreme Court would have
the opportunity to consider and possibly overturn that decision any
time soon." In a travesty of justice,
Padilla was convicted of all counts against him on August 16, 2007, by
"a patriotic jury that appeared in court with one row of jurors dressed
in red, one in white, and one in blue," and sentenced on January 22,
2008 to 17 years and four months in prison.
Also sentenced were co-defendants Adham Amin Hassoun of
Broward
County, Florida, to 15 years and eight months in prison, and Dr. Kifah
Wael Al-Jayyousi of Detroit, Michigan, to 12 years and eight months.
According to news reports, the charges of terrorism
against
Al-Jayyousi, a Jordanian-born Palestinian and engineer who taught at
Wayne State University, and Palestinian Hassoun, a community activist
in Florida, stem from their charitable activities in the 1990s when
they sent charitable funds to Bosnians
and Chechens. According to trial testimony from FBI agents, their
charitable work was a cover for terrorist activities and Al-Jayyousi,
who had overseen the early stages of the Detroit Public Schools' $1.5
billion bond issue, was allegedly a financier and propagandist for the
cell that assisted Islamic extremists in Chechnya,
Afghanistan, Somalia and elsewhere. Attorneys for Hassoun and
Al-Jayyousi
said any help they provided overseas was for peaceful purposes and to
aid persecuted Muslims. The warehouse owner where Al-Jayyousi's charity
stored relief goods testified that all the goods were legitimate
charitable donations.
In deciding against life sentences for the three men
which
prosecutors had sought, U.S. District Judge Marcia Cooke said no
evidence linked them to acts of terrorism.
"There is no evidence that these defendants personally
maimed,
kidnapped or killed anyone in the United States or elsewhere," she said.
Cooke also said she arrived at Padilla's sentence after
considering his long detention at a Navy brig in South Carolina.
"I do find that the conditions were so harsh for Mr.
Padilla ...
they warrant consideration in the sentencing in this case," the judge
said. Padilla did not get credit for time served.
Padilla's lawyers said his treatment amounted to
torture, which U.S.
officials have denied. His attorneys say he was forced to stand in
painful stress positions, given drugs as "truth serum," deprived of
sleep and a mattress for extended periods and subjected to extreme heat
and cold, and noxious odours.
All three men are appealing their convictions.
In this issue, TML is posting several items
which analyze
the significance of the Padilla case and show how the U.S.
administration is manipulating the courts and legal process to make it
possible to declare any American citizen an enemy of the state.
Subverting the Rule of Law --
The Importance of the Padilla Case
- Jacob Hornberger*, CounterPunch,
January 5/6, 2008
At Jose Padilla's habeas corpus hearing, the
district court upheld the enemy-combatant doctrine and ruled that there
was sufficient evidence to conclude that he was, in fact, an enemy
combatant. His petition for writ of habeas corpus was denied.
Padilla appealed to the Second Circuit Court of Appeals
in New York, which overturned the district court's ruling [December
18,2003]. The court rejected the enemy-combatant doctrine for Americans
arrested on American soil, effectively holding that if the government
had evidence that Padilla had
committed some act of terrorism, it would have to secure a criminal
indictment against him and prosecute him in federal district court.
Since the U.S. military was holding Padilla under no valid
justification, the fact that the government was able to produce
incriminating evidence was irrelevant because, again, both
prongs of the test must be met. What the court was effectively telling
the government was: Charge Padilla in federal district court with a
criminal offense or release him.
The government appealed that decision to the U.S.
Supreme Court. The Supreme Court refused to rule on the merits of the
case and instead dismissed it on a procedural ground [February 20,
2004]. The Court ruled that the original petition should have been
brought in a South Carolina federal district
court rather than a New York federal district court because that was
where Padilla was in military custody. In their dissent to this ruling,
however, some of the justices were clearly sympathetic to Padilla's
arguments.
Padilla then started all over, filing a new petition
for writ of habeas corpus in a South Carolina federal
district court. The South Carolina district court rejected the
enemy-combatant doctrine, effectively holding the same thing that the
Second Circuit Court of Appeals had held. The South
Carolina court also effectively told the government: Charge Padilla in
federal district court or release him.
The government then appealed to the Fourth Circuit
Court of Appeals in Richmond, which is reputed to be the most
conservative federal appeals court in the nation. Upholding the
enemy-combatant doctrine, in June 2005 a three-judge panel of that
court overturned the South Carolina district court's
ruling.
While Padilla was appealing that decision to the U.S.
Supreme Court, the government pulled a very clever legal maneuver. In
November 2005 -- three years after he had been taken into custody --
the government secured a criminal indictment against Padilla and
transferred him from military custody
to civilian custody for criminal prosecution for terrorism in a Florida
federal district court. That meant that Padilla's habeas corpus
appeal to the U.S. Supreme Court was now moot, because he was no longer
in military custody. With the government's clever legal maneuvering,
the nation was left with
the Fourth Circuit's decision upholding the enemy-combatant doctrine
and without much of a chance that the Supreme Court would have the
opportunity to consider and possibly overturn that decision any time
soon.
On August 7, 2007, a federal jury convicted Padilla of
criminal offenses relating to terrorism.
The Importance of the Padilla Case
It is impossible to overstate the importance of the
principles involved in the Padilla case for the American people.
Ordinary Americans might ask, "Why get all upset about some guy named
Jose Padilla? He's just a terrorist."
What such Americans fail to realize, however, is that
Padilla was just the test case whose legal principles would then apply
to all Americans. That's why groups dedicated to civil liberties and
especially the Bill of Rights have focused such an inordinate amount of
attention on the Padilla case. They
understood that if the enemy-combatant doctrine would be upheld with
respect to Padilla, the government would then be able to apply it
against all Americans, including dissidents, protesters, and critics of
the government.
The enemy-combatant doctrine constitutes the most
direct and dangerous threat to the freedom of the American people in
the history of our country. Prior to 9/11, terrorism was considered by
almost everyone a federal criminal offense. If anyone, including an
American, was accused of terrorism, the
government had to secure a grand-jury indictment against him and
prosecute him in U.S. district court. In that proceeding, the accused
would be entitled to all the rights and guarantees enumerated in the
Bill of Rights, such as the right to counsel, right to due process of
law, right to trial by jury, right to be free from
unreasonable searches and seizures, right to confront witnesses, and
right against self-incrimination.
The fact that terrorism has historically been
considered a criminal offense was reflected, for example, in the
federal criminal prosecutions of convicted terrorists Ramzi Yousef, one
of the architects of the 1993 bombing of the World Trade Center, and
Timothy McVeigh, the man who bombed the Oklahoma
City federal building. Indeed, even in the post 9/11 era, the
government has prosecuted one of the 9/11 co-conspirators, Zacarias
Moussaoui, in federal district court, as well as other terrorist
suspects in Michigan, Florida, and elsewhere.
What was revolutionary about President Bush's treatment
of José Padilla was that for the first time in U.S. history, the
government was claiming the power to treat suspected terrorists in two
alternative ways:
(1) through the normal federal-court route; and
(2) through the enemy-combatant route.
It would be difficult to find a more perfect violation
of the age-old principle of the "rule of law," the principle that holds
that all people should have to answer to a well-defined law for their
conduct rather than to the discretionary decisions of government
officials.
With the post-9/11 option to treat suspected terrorists
in two completely different ways, each with markedly different
consequences, the president and the Pentagon converted the United
States from a "nation of laws" to a "nation of men."
Padilla Case Offers a New Model of Terrorism Trial
- Adam Liptak, New York Times, August 18,
2007 -
There were two perfectly predictable schools of thought
being expressed after the conviction of Jose Padilla on Thursday on
terrorism-related charges. Supporters of the Bush administration said
the conviction justified the more than three years Mr. Padilla spent in
military detention before his criminal prosecution,
while the administration's opponents said the verdict proved that the
criminal justice system should have handled the case in the first place.
But the real innovation in Mr. Padilla's case, some
legal experts said yesterday, was more subtle than those dueling
talking points suggested. The Justice Department's strategy in the
trial itself, using a seldom-tested conspiracy law and relatively thin
evidence, cemented a new prosecutorial model in
terrorism cases.
The central charge against Mr. Padilla was that he
conspired to murder, maim and kidnap people in a foreign country. The
charge is a serious one, and it can carry a life sentence. But
prosecutors needed to prove very little by way of concrete conduct to
obtain a conviction under the law.
"There is no need to show any particular violent
crime," said Robert M. Chesney, a law professor at Wake Forest
University and the author of a recent law review article on conspiracy
charges in terrorism prosecutions. "You don't have to specify the
particular means used to carry out the crime."
Indeed, the strongest piece of evidence in Mr.
Padilla's case was what prosecutors said was an application form Mr.
Padilla filled out to attend a training camp run by Al Qaeda in
Afghanistan in 2000.
"It is a pretty big leap between a mere indication of
desire to attend a camp and a crystallized desire to kill, maim and
kidnap," said Peter S. Margulies, a law professor at Roger Williams
University who has also written on conspiracy charges in terrorism
prosecutions.
The conspiracy charge against Mr. Padilla, Professor
Margulies continued, "is highly amorphous, and it basically allows
someone to be found guilty for something that is one step away from a
thought crime."
Prosecutors have long loved conspiracy charges in all
kinds of cases. Judge Learned Hand, widely thought to be the greatest
American judge never to sit on the Supreme Court, called conspiracy
"that darling of the modern prosecutor's nursery" in a classic 1925
decision. More recently, Judge Frank
H. Easterbrook, now the chief judge of the federal appeals court in
Chicago, lamented that "prosecutors seem to have conspiracy on their
word processors as Count I."
But recent terrorism prosecutions are doing more than
using an old tool with new aggressiveness, legal experts said. They are
also using it for a new purpose: preventive detention.
Before allowing Mr. Padilla to be tried in the federal
courts, the administration justified holding him as an enemy combatant
in part by saying he would be dangerous if let go. Criminal
prosecutions, by contrast, are almost always focused on conduct already
committed.
But the sharp split between military detention and
criminal prosecution starts to blur as conspiracy charges are added to
the mix.
That is because conspiracies aim at the future. A
successful conspiracy prosecution looks both backward, to punish the
crime of conspiring, and forward, to stop dangerous people from
completing their plans. The weaker the evidence of conspiracy is, the
more such a prosecution can look like a request
for judicially sanctioned preventive detentions.
In opinion articles and academic commentary, lawyers
and law professors across the political spectrum have been arguing in
recent months about whether the criminal law should be supplemented by
legislation authorizing preventive detention. The Padilla verdict
suggests that something similar may
have already been achieved in the courts.
There was a second justification for Mr. Padilla's
prolonged military detention. In a sworn statement in 2003, Vice Adm.
Lowell E. Jacoby, then the director of the Defense Intelligence Agency,
told a federal judge in New York that Mr. Padilla should be
interrogated without access to a lawyer.
"It is critical to minimize external influences on the
interrogation process," Admiral Jacoby wrote. "Anything that threatens
the perceived dependency and trust between the subject and interrogator
directly threatens the value of interrogation as an
intelligence-gathering tool."
That sort of intensive and isolated interrogation,
which Mr. Padilla lawyers have said caused him lasting psychiatric
problems, could not have been accomplished in the criminal justice
system, where the Constitution guarantees legal representation and
other due process protections.
But Justice Sandra Day O'Connor, in her controlling
opinion in Hamdi v. Rumsfeld, the 2004 Supreme Court decision
that endorsed the detention of at least some enemy combatants to
prevent their return to the battlefield, rejected interrogation as a
rationale for detention.
That same year, the Supreme Court ruled on a procedural
question in the Padilla case but did not discuss whether his detention
was proper. Just before the Supreme Court was to decide whether to hear
his case again, the administration moved him to the criminal justice
system.
If Thursday's verdict is upheld, the administration may
thus have achieved the last in a series of practical victories. It held
and interrogated Mr. Padilla without interference from the courts, and
now it has convicted him of a crime that could put him away for life.
Why José Padilla's 17-Year Sentence
Should Disgust All Americans
- Andy Worthington*, AlterNet, January
22, 2008
The news that U.S. citizen José Padilla has
received a
prison sentence of 17 years and four months should provoke outrage in
the United States, although it is unlikely that there will be much more
than a whimper of dissent.
The former gang member and convert to Islam -- 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 -- was once regarded as one
of the most dangerous terrorists
ever apprehended on American soil. Almost six years later, as he
received his sentence, he was not actually accused of lifting a finger
to harm even a single U.S. citizen.
While this is shocking enough in and of itself,
Padilla's sentence - in what at least one perceptive commentator called
"the most important case of our lifetimes" -- is particularly shocking
because it sends a clear message to the President of the United States
that he can, if he wishes (and as he did with
Padilla), designate a U.S. citizen as an "enemy combatant," hold him
without charge or trial in a naval brig for 43 months, and torture him
-- through the use of prolonged sensory deprivation and solitary
confinement -- to such an extent that, as the psychiatrist Dr. Angela
Hegarty explained after spending 22 hours
with Padilla, "What happened at the brig was essentially the
destruction of a human being's mind."
Padilla's warders had another take on his condition,
describing him as "so docile and inactive that he could be mistaken for
'a piece of furniture,'" but the most detailed analysis of the effects
of his torture was, again, provided by Angela Hegarty in an interview
last August with Democracy Now:
"Juan Gonzalez: And have you dealt with
someone who had been in isolation for such a long period of time before?
"Dr. Angela Hegarty: No. This was the
first time I ever met anybody who had been isolated for such an
extraordinarily long period of time. I mean, the sensory deprivation
studies, for example, tell us that without sleep, especially, people
will develop psychotic symptoms, hallucinations,
panic attacks, depression, suicidality within days. And here we had a
man who had been in this situation, utterly dependent on his
interrogators, who didn't treat him all that nicely, for years. And
apart from -- the only people I ever met who had such a protracted
experience were people who were in detention camps
overseas, that would come close, but even then they weren't subjected
to the sensory deprivation. So, yes, he was somewhat of a unique case
in that regard."
As if this were not worrying enough, it was what
happened after Padilla's 43-month ordeal that sealed the President's
impunity to torture U.S. citizens at will. When it seemed that his case
was within reach of the U.S. Supreme Court, the government transferred
him into the U.S. legal system, deposited
him in a normal prison environment, dropped all mention of the "dirty
bomb" plot, and charged him, based on his association with two alleged
terrorist facilitators, Adham Amin Hassoun and Kifah Wael Jayyousi,
with participating in a Florida-based plot to aid Islamic extremists in
holy wars abroad. When the case
came to court last summer, the judge, Marcia Cooke, airbrushed
Padilla's torture from history, insisting that it could not be
discussed at all, and, after a trial regarded as farcical by many
observers, Padilla and his co-defendants were duly found guilty.
Today's sentencing, after an unusually protracted
two-week debate, has apparently brought the whole sordid saga to an
end, with Padilla's torture only mentioned briefly in passing by Judge
Cooke, who noted, "I do find that the conditions [for Padilla as an
enemy combatant] were so harsh that they
warrant consideration." Nevertheless, he received a longer sentence
than either of his co-defendants (who were sentenced to 15 years and
eight months, and 12 years and eight months, respectively), even though
two jurors admitted to the Miami Herald that the jury as a whole
"struggled to convict Padilla because
the panel initially viewed him as a bit player in the scheme to aid
Islamic extremists, unlike his co-defendants."
They certainly had a point. While the conviction of
Hassoun and Jayyousi was based on coded conversations in 126 phone
calls intercepted by the FBI over a number of years, Padilla was
included in only seven of those phone calls. Groomed by his mentor,
Hassoun, he had traveled to the Middle East
and, in 2000, had applied to attend a military training camp in
Afghanistan, using the name Abu Abdallah al-Muhajir. His application
form, which, according to a government expert, bore his fingerprints,
was apparently discovered during a CIA raid on an alleged al-Qaeda safe
house in Afghanistan, but although
the prosecution presented an alleged al-Qaeda graduation list with his
Muslim name on it during the sentencing, they had been unable to
provide any evidence during the trial that he had actually attended the
training camp in Afghanistan.
In the end, Padilla's conviction hinged on the jury's
determination that he had "joined the terrorism conspiracy in the
United States before leaving the country." This was based on a single
recorded conversation, in July 1997, in which he stated that he was
ready to join a jihad overseas.
17 years and four months seems to me to be an
extraordinarily long sentence for little more than a thought crime, but
when the issue of Padilla's three and half years of suppressed torture
is raised, it's difficult not to conclude that justice has just been
horribly twisted, that the President and his advisors
have just got away with torturing an American citizen with impunity,
and that no American citizen can be sure that what happened to Padilla
will not happen to him or her. Today, it was a Muslim; tomorrow, unless
the government's powers are taken away from them, it could be any
number of categories of "enemy
combatants" who have not yet been identified.
Padilla Jury Opens Pandora's Box
- Paul Craig Roberts*, lewrockwell.com,
August 21, 2007 -
José Padilla's conviction on terrorism charges on
August 16 was a victory, not for justice, but for the U.S. Justice
(sic) Department's theory that a U.S. citizen can be convicted, not
because he committed a terrorist act but for allegedly harboring
aspirations to commit such an act. By agreeing with the Justice (sic)
Department's theory, the incompetent Padilla Jury delivered a deadly
blow to the rule of law and opened Pandora's box.
Anglo-American law is a human achievement 800 years in
the making. Over centuries law was transformed from a weapon in the
hands of government into a shield of the people from unaccountable
power. The Padilla Jury's verdict turned law back into a weapon.
The jury, of course, had no idea of what was at stake.
It was a patriotic jury that appeared in court with one row of jurors
dressed in red, one in white, and one in blue (Peter Whoriskey, Washington
Post, August 17, 2007). It was a jury primed to be psychologically
and emotionally manipulated
by federal prosecutors desperate for a conviction for which there was
little, if any, supporting evidence. For the jury, patriotism required
that they strike a blow for America against terrorism. No member of
this jury was going to return home to accusations of letting off a
person who has been portrayed as a terrorist
in the U.S. media for five years.
The "evidence" against Padilla consists of three items:
(1) seven intercepted telephone conversations, (2) a 10-year old
non-relevant video of Osama bin Laden, and (3) an alleged application
to a mujahideen (not terrorist) training camp with Padilla's
fingerprints. We will examine each in turn.
The International Herald Tribune and
Associated Press reported in detail on the telephone intercepts (June
19, 2007): "Accused al-Qaida operative Jose Padilla was never overheard
using purported code words for violent jihad in intercepted
telephone conversations and spoke
often about his difficulties in learning Arabic while studying in
Egypt, the lead FBI case agent testified Tuesday. The questioning of
FBI Agent James T. Kavanaugh by Padilla attorney Michael Caruso focused
on seven intercepted telephone calls on which Padilla's voice is heard
mostly talking about his marriage
and his studies but never about Islamic extremism.... Caruso asked
Kavanaugh if Padilla ever was heard using what prosecutors say were
code words for violent jihad ... 'No, he does not,' Kavanaugh
replied.... Caruso asked Kavanaugh if Padilla was ever overheard
discussing jihad training.
'No jihad training that I've seen,' Kavanaugh said. . . .
'He's not referring to anything here but studying Arabic, correct?
Study means study, right?' Caruso asked. 'That's what they're talking
about,' Kavanaugh testified."
Despite the FBI's testimony that the intercepted
telephone messages contained no incriminating evidence, the "patriotic"
jury accepted the federal prosecutor's unsupported accusation that
there were hidden code words in the message indicating that Padilla was
a terrorist. After all, who but a terrorist
would want to learn Arabic?
The video of bin Laden had no relevance whatsoever to
the charges in the case. The video is 10-years old and makes no
reference to any of the defendants. Moreover, none of the defendants
were accused of ever being in contact with bin Laden. The only purpose
of the video was to arouse in jurors
fear, anger, and disturbing memories associated with September 11,
2001. The fact that the judge let prosecutors sway a fearful and
vengeful patriotic jury with emotion and passion rather than evidence
is obviously grounds for appeal.
Whoriskey reports that in their closing arguments
prosecutors mentioned al-Qaeda more than 100 times and urged jurors to
think of al-Qaeda and groups alleged to be affiliated with it as an
international murder conspiracy. Padilla "trained to kill," Assistant
U.S. Attorney Brian Frazier misinformed the
jury in his closing statement.
Who Padilla wished to kill was never identified, but
according to the prosecutors he had been wanting to kill persons
unknown since 1998. Padilla was convicted for harboring alleged
intentions, not for committing any acts. Indeed, no harmful acts are
charged to Padilla. The incompetent jury fell for
the prosecutors' wild tale of a murder conspiracy many years old that
had no results.
As Andrew Cohen put it, Padilla and the two
co-defendants were convicted on the charge of "terrorist-wannabes" on
the basis of "evidence that federal authorities did not believe
amounted to a crime when it was gathered back before 2001." Cohen
concludes: "it's further proof that if you can convince
an American jury that a man in the dock had anything to do with
al-Qaeda, you can pretty much bank on a conviction no matter how
tenuous the evidence" (Washington Post, August 16, 2007).
The training camp application form is as suspect as any
evidence can be. Moreover, the prosecution had no evidence that Padilla
actually attended such a camp. Padilla was held illegally for 3.5 years
and tortured. At any time during his illegal detention and torture,
Padilla could have been handed a
form, thus tainting it with his fingerprints.
Amy Goodman, the forensic psychiatrist Dr. Angela
Hegarty, the Christian Science Monitor and others have
described how U.S. interrogators abused Padilla and destroyed his mind.
To expect a person as badly tortured and abused as Padilla to retain
the wits not to touch a piece of paper
handed to him, or forced into his hands, is unreasonable.
When Padilla was arrested five years ago in 2002, the
U.S. government charged that he was about to set off a radioactive
"dirty bomb" in a U.S. city that would kill tens or even hundreds of
thousands of Americans. The story was a total lie, a fabrication
designed to keep the fear level high after 9/11
in order to keep support for the Bush regime's wars and domestic police
state. None of the charges on which Padilla was illegally held, during
those years before the U.S. Supreme Court intervened and ordered the
Bush regime to release Padilla or bring him to trial, were part of the
charges on which Padilla was tried.
There is little doubt that Padilla's conviction, and
probably also the convictions of the two co-defendants, is a terrible
injustice. But the damage done goes far beyond the damage to the
defendants. What the red, white, and blue "Padilla Jury" has done is to
overthrow the U.S. Constitution and give us
the rule of men.
The U.S. Constitution and Anglo-American legal tradition
prevent indictments, much less convictions, based on a prosecutor's
theory that a person wanted to commit a crime in the past or might want
to in the future. Padilla has harmed no one. There is no evidence that
he made an agreement with any
party to harm anyone whether for money or ideology or any reason. The
FBI testified that the telephone calls were innocuous. The bin Laden
video was evidence of nothing pertaining to the defendants. The piece
of paper, alleged to be a personnel form recovered from an al-Qaeda
camp in Afghanistan is nothing
but a piece of paper and an assertion.
As Lawrence Stratton and I demonstrated in our book, The
Tyranny of Good Intentions (2000), the protective features of law
had been seriously eroded prior to the Bush regime's assault on civil
liberty in the name of "the war on terror." The U.S. Constitution and
the Bill of Rights rest
on Blackstone's Commentaries on the Laws of England. Blackstone
explained law as the protective principles against tyranny -- habeas
corpus, due process, attorney-client privilege, no crime without
intent, no retroactive law, no self-incrimination.
Jeremy Bentham claimed that these protective principles
were outmoded in a democracy in which the people controlled the
government and no longer had reasons to fear it. The problem with
Blackstone's "Rights of Englishmen," Bentham said, is that these civil
liberties needlessly limit the government's
power and, thus, its ability to protect citizens from crime. Bentham
wanted to preempt criminal acts by arresting those likely to commit
crimes in advance, before the budding criminals entered into a life of
crime. Bentham, like the Bush regime, the "Padilla Jury," and the
Republican Federalist Society, did not understand
that when law becomes a weapon, liberty dies regardless of the form of
government. If they do understand, they prefer unaccountable government
power to individual liberty.
The incompetent "Padilla Jury" has done Americans and
their liberty far more damage than will ever be done by terrorists,
other than those in our criminal justice (sic) system who now wield the
powers that Bentham wanted to give them.
The Padilla case was the way the Bush Justice (sic)
Department implemented its strategy for taking away the legal
principles that protect American citizens. Padilla is an American
citizen. He was denied habeas corpus and his rights to an
attorney and due process. He was tortured in an
attempt to coerce him into self-incrimination. In treating Padilla in
these ways, the U.S. Department of Justice (sic) violated both the U.S.
Constitution and federal law. There is no doubt whatsoever that the
Justice (sic) Department
committed far more crimes than did Padilla.
By the time the Supreme Court finally intervened,
Padilla was universally known as the demonized "dirty bomber," an
"enemy combatant" who was arrested before he could set off a
radioactive bomb in a U.S. city. The Injustice Department could now
simultaneously convict Padilla and enshrine Benthamite
law simply by appealing to fear and patriotism. And that is what
happened.
Under Benthamite law, the individual has no rights. The
new calculus is "the greatest good for the greatest number" as
determined by the wielders of power. On the basis of this new law, not
written by Congress but invented by the Injustice Department and made
precedent by the "Padilla Jury" verdict,
the U.S. can lock up people based on the percentage of crime committed
by their race, gender, income class, or ethnic group.
Under Benthamite law, people can be arrested and
prosecuted for thought crimes. Under Benthamite law, it is the
government that protects the people, not the Constitution and Bill of
Rights that protect the individual. Benthamite law makes "advocacy
speech," for example, a call for the overthrow of
the U.S. government, upheld in the 1969 Supreme Court decision, Brandenburg
v. Ohio, a serious federal crime. The "Padilla Jury" has opened
Pandora's box. Unless the
conviction is overturned on appeal, American liberty died in the
"Padilla Jury's" verdict.
For Your Information
Background on the José Padilla Case
- Wikipedia (excerpts) -
Arrest
Padilla traveled to Egypt, Saudi Arabia, Afghanistan,
Pakistan, and Iraq. On his return, he was arrested by federal agents at
Chicago's O'Hare International Airport on May 8, 2002, and held as a
material witness on a warrant issued in the state of New York stemming
from the September 11,
2001 attacks.
On June 9, 2002, two days before District Court Judge
Michael Mukasey was to issue a ruling on the validity of continuing to
hold Padilla under the material witness warrant, President George Bush
issued an order to Secretary Rumsfeld to detain Padilla as an "enemy
combatant," and Padilla was transferred
to a military brig in South Carolina without any notice to his attorney
or family. The order "legally justified" the detention using the AUMF,
which authorized the President to "use all necessary force against . .
. such nations, organizations, or persons" and by opining that a U.S.
citizen detained on U.S. soil can be
classified an enemy combatant. (This opinion is based on the decision
of the United States Supreme Court in the case of Ex parte
Quirin, a case involving the detention of a group of German-Americans
in the United States working for Nazi Germany).[14]
According to the text of the ensuing decision from the
U.S. Circuit Court of Appeals for the Second Circuit, Padilla's
detention as an "enemy combatant" (pursuant to the President's order)
was based on the following reasons:
1. Padilla was "closely associated with al Qaeda, an
international terrorist organization with which the United States is at
war"; 2. He had engaged in "war-like acts, including conduct in
preparation for acts of international terrorism"; 3. He had
intelligence that could assist the United States in warding
off future terrorist attacks; and 4. He was a continuing threat to
American security.
Habeas Corpus
Because Padilla was being detained without any criminal
charges being formally made against him, he, through his lawyer, made a
petition for a writ of habeas corpus to the United States
District Court for the Southern District of New York, naming Secretary
Donald
Rumsfeld as the respondent to this petition. The government filed a
motion to dismiss the petition on the grounds that:
1. Padilla's lawyer was not a proper "Next Friend" to
sign and file the petition on Padilla's behalf; 2. Commander Marr of
the South Carolina brig, and not U.S. Secretary Rumsfeld, should have
been named as the respondent to the petition; and 3. the New York court
lacked personal jurisdiction over
the named respondent Secretary Rumsfeld who resides in Virginia.
The New York District Court disagreed with the
government's arguments and dismissed its motion. However, the court
further declared that President Bush had constitutional and statutory
authority to designate and detain American citizens as "enemy
combatants" and that Padilla was entitled to challenge
his "enemy combatant" designation and detention in the course of his habeas
corpus petition. Since the New York District Court had in some way
disappointed all sides of this legal battle, both Padilla and the
government made an interlocutory appeal to the 2nd U.S. Circuit Court
of Appeals.
On December 18, 2003, the Second Circuit Court of
Appeals declared that:
1. Padilla's lawyer is a proper "Next Friend" to sign
and file the habeas corpus petition on Padilla's behalf
because she, as a member of the bar, had a professional duty to defend
her client's interests. Further, she had a significant attorney-client
relationship with Padilla and was far from
being some zealous "intruder" or "uninvited meddler"; 2. Secretary
Rumsfeld can be named as the respondent to Padilla's habeas corpus
petition, even though it is South Carolina's Commander Marr who had
immediate physical custody of Padilla, because there have been past
cases where national-level
officials have been named as respondents to such petitions; 3. the New
York District Court had personal jurisdiction over Secretary Rumsfeld
even though Rumsfeld resides in Virginia and not New York because New
York's "long arm statute" is applicable to Secretary Rumsfeld, who was
responsible for Padilla's
physical transfer from New York to South Carolina; and 4. despite the
legal precedent set by Ex parte Quirin, "the President lacked
inherent constitutional authority as Commander-in-Chief to detain
American citizens on American soil outside a zone of combat". The 2nd
Circuit Court relied on the case
of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),
where the U.S. Supreme Court had ruled that President Truman, during
the Korean War years, could not use his position and power as
Commander-in-Chief, created under Article 2, Section 2 of the U.S.
Constitution, to seize the nation's
steel mills on the eve of a nation-wide steelworkers' strike. The
extraordinary government power to curb civil rights and liberties
during crisis periods, such as times of war, lies with Congress and not
the President. Article 1, Section 9, Clause 2 of the U.S. Constitution
grants Congress, and not the President, with
the power to suspend the right of habeas corpus during a
period of rebellion or invasion.
Declaring without clear Congressional approval (per 18
U.S.C. § 4001(a)), President Bush cannot detain an American
citizen as an "illegal enemy combatant" the court ordered that Padilla
be released from the military brig within 30 days[15].
However, the
court had stayed the release order pending
the government's appeal to the U.S. Supreme Court.
U.S. Supreme Court
On February 20, 2004, the Supreme Court agreed to hear
the government's appeal. The Supreme Court heard the case, Rumsfeld v.
Padilla, in April 2004, but on June 28, 2004, the court dismissed the
petition on technical grounds because:
1. It was improperly filed in federal court in New York
instead of South Carolina, where Padilla was actually being detained;
and 2. the Court held that the petition was incorrect in naming the
Secretary of Defense as the respondent instead of the Commanding
Officer of the naval brig who was Padilla's
actual custodian for habeas corpus purposes.
District Court, South Carolina
The case was refiled and a decision in Padilla's favor
was issued in the United States District Court for the District of
South Carolina. On June 13, 2005, the Supreme Court denied the
government's petition to have his case heard directly by the court,
instead of the
appeal being first heard by the United States Court of Appeals for the
Fourth Circuit in Richmond, Virginia.
On September 9, 2005, a three-judge panel of the 4th
U.S. Circuit Court of Appeals ruled that President Bush does indeed
have the authority to detain Padilla without charges, in an opinion
written by judge J. Michael Luttig. In the ruling, Luttig cited the
joint resolution by Congress authorizing military
action following the September 11, 2001 attacks, as well as the June
2004 ruling concerning Yaser Hamdi. Attorneys for Padilla, plus a host
of civil liberties organizations, argued that the detention was
illegal. They said it could lead to the military holding anyone, from
protesters to people who check out what the
government considers the wrong books from the library. The Bush
Administration denied the allegations.
But as the Congressional military authorization (the
Authorization for Use of Military Force Against Terrorists) pertained
only to nations, organizations or persons whom the President
"determines planned, authorized, committed, or aided the September 11,
2001 attacks, or harbored such organizations
or persons", others argue that this kind of Congressional limitation to
the military power would assure an appropriately narrow range of
detainees and the power to detain would last only so long as the
Congressional authorization was not revoked or remained in effect by
its terms. Also the Yaser Hamdi Supreme
Court case (Hamdi v. Rumsfeld) upon which the court relied
requires a habeas corpus hearing for any alleged enemy
combatant who demands one, claiming not to be such a combatant, which
would also place additional judicial or perhaps military tribunal
oversight over each such detention.
However, one of the provisions of the Military
Commissions Act of 2006 enacted on October 17, 2006, states:
"Except as otherwise provided in this chapter, and notwithstanding
any other law [emphasis added] (including section 2241 of title 28,
United States Code, or any other habeas corpus provision), no
court, justice, or judge shall have jurisdiction to hear or consider
any claim or
cause of action whatsoever, including any action pending on or filed
after the date of enactment of this chapter, relating to the
prosecution, trial, or judgment of a military commission convened under
this section, including challenges to the lawfulness of the procedures
of military commissions under this chapter."
The Military Commission Act of 2006 does not
apply by its terms to José Padilla, since he is a U.S. citizen
held in the United States, but does not rule out similar enemy
combatant designations of U.S. citizens either. Other provisions of the
Military Commission Act of 2006 may provide
civil and criminal amnesty to those involved in his case, who might
otherwise face civil right lawsuits or criminal liability for
unlawfully detaining someone.
Indictment
On November 22, 2005, CNN's front page broke the news
that Padilla had been indicted on charges he "conspired to murder,
kidnap and maim people overseas."[16]
Padillia's lawyer
correlated the
indictment's timing as avoidance of an impending Supreme Court hearing
on the Padilla
case: "the administration is seeking to avoid a Supreme Court showdown
over the issue."[17] None of the
original allegations
put forward by
the U.S. government three years prior, the claims that held Padilla in
the majority in solitary confinement throughout that period, were part
of the indictment: "Attorney General
Alberto Gonzales announced Padilla is being removed from military
custody and charged with a series of crimes" and "There is no mention
in the indictment of Padilla's alleged plot to use a dirty bomb in the
United States. There is also no mention that Padilla ever planned to
stage any attacks inside the country.
And there is no direct mention of Al-Qaeda. Instead the indictment lays
out a case involving five men who helped raise money and recruit
volunteers in the 1990s to go overseas to countries including Chechnya,
Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor
role in the conspiracy. He is accused
of going to a jihad training camp in Afghanistan but his
lawyers said the indictment offers no evidence he ever engaged in
terrorist activity."[18] Considering
Padilla was held
for years in
military custody with no formal charges brought, many were shocked by
this move by the George W. Bush presidential
administration,[19] and some reasoned
that a repeat of
such a process
would allow the U.S. government to detain citizens indefinitely without
presenting the cause that would eventually be tried. A transfer to
civilian court was denied the U.S. Administration by a federal appeals
court in December 2005. The court
recognized "shifting tactics in the case threatens [the government's]
credibility with the courts."[20]
This was countered by
Solicitor
General Paul Clement: the federal appeals court decision "defies both
law and logic," he stated in a request to the Supreme Court for
immediate transfer on December 30, 2005,[21]
one
day after Padilla's lawyers filed a petition of their own charging the
U.S. President of overstepping his authority.[22]
On January 3, 2006, the United States Supreme Court
granted a Bush administration request to transfer Padilla from military
to civilian custody. Padilla was transferred to a federal prison in
Miami from the Navy brig in Charleston while the Supreme Court decided
whether to accept his appeal of the
government's authority to keep citizens it designates "enemy
combatants" in open-ended military confinement without benefit of
trial.[23]
On April 3, 2006, the U.S. Supreme Court declined, with
three justices dissenting from denial of certiorari, to hear
Padilla's appeal from the 4th Circuit Court's decision that the
President had the power to designate him and detain him as an "enemy
combatant" without charges and with
disregard to habeas corpus.
Criminal Proceedings
Padilla was indicted on three criminal counts in the
Miami, Florida criminal proceeding to which he was transferred from
military custody. He pled not guilty to all charges. The trial
commenced on May 15, 2007,[1] and
lasted for 3 months.
On August 16, 2007 -- after only a day and a half of
deliberations -- the jury found Padilla guilty on all counts.
Partial Dismissal of Counts Against Padilla
Two weeks after the presiding judge claimed prosecutors
were "light on facts" in its conspiracy allegations,[24]
one of the
three charges against Padilla was dismissed and another was dismissed
in part.
The first of the three counts Padilla was charged with,
conspiracy to murder (punishable by life imprisonment), was dismissed
on August 16, 2006, on the grounds that it was duplicative of the other
two counts pending against him. The second count was conspiracy to
materially aid terrorists under
18 U.S.C. § 371 (punishable by five years in prison) and the third
was 18 U.S.C. § 2339A (punishable by 15 years in prison). The
trial court ordered that the government elect only a single criminal
statute in its second count of the indictment. However, on January 30,
2007, the Court of Appeals for
the 11th Circuit reversed the ruling and reinstated a charge of
conspiracy to "murder, kidnap, and maim."[25]
Allegations of Torture During Imprisonment
Padilla's legal team filed a motion to dismiss the case,
alleging that during his imprisonment he has been subjected to torture,
including sensory deprivation, sleep deprivation, enforced stress
positions and administered with various drugs including possibly
LSD and PCP.[26]
Delays in Prosecution
Two additional motions also filed in October of 2006,
argued that the case should be dismissed because the government took
too much time between arresting Padilla and charging him.[2]
In
essence, the argument is that for constitutional speedy trial purposes,
the arrest took
place prior to his detention as an enemy combatant, and not simply when
he was transferred to civilian custody.
Mental Competency Hearing
In January 2007 a mental competency hearing was
scheduled for February 22, 2007 over allegations of torture by the
military,[27] after two mental health
experts hired by
the defense to
conduct a competency evaluation concluded Padilla is not mentally fit
for trial and
a third evaluation submitted by the Bureau of Prisons found him
mentally competent. The judge also ordered that Sandy Seymour,
technical director of the Charleston brig, Craig Noble, brig
psychologist, Andrew Cruz, brig social worker, four employees of the
Miami federal detention center, and a Defense Department
lawyer appear at the hearing.[28]
On February 22, 2007, at the competency hearing Angela
Hegarty, a psychiatrist hired by Padilla's defense, said that after 22
hours of examining Padilla it was her opinion that he was mentally
unfit to stand trial. She said that he exhibited "a facial tic,
problems with social contact, lack of concentration
and a form of Stockholm syndrome." She diagnosed his condition as
post-traumatic stress disorder.[29][30] She told the
court "It's my
opinion that he lacks the capacity to assist counsel. He has a great
deal of difficulty talking about the current case before him."[30] In
cross examination Federal prosecutor John Shipley
pointed out that Padilla had a score of zero on Hegarty's
post-traumatic stress disorder test and pointed out that this
information was omitted in her final report. Hegarty responded that
this omission was an error on her part.[30]
Another
psychiatrist hired
by the defense testified along the same lines. The Miami
Herald reported that a "U.S. Bureau of Prisons psychiatrist who
believes Padilla is fit to face trial and Defense Department officials
-- are expected to testify at the ongoing hearing before U.S. District
Judge Marcia Cooke."[30]
Criticism of His Conviction
Andrew Patel, Padilla's lawyer, said after the guilty
verdict, "What happened in this trial, I think you have to put it in
the context of federal conspiracy law, where the government doesn't
have to prove that something happened, but just that people agree that
something
should happen in the future. In this case, it was even more strained.
The crime charged in this case was actually an agreement to agree to do
something in the future. So when you're dealing with a charge like
that, you're not going to have -- or the government's not going to be
required to produce the kind of evidence
that you would expect in a normal criminal case."[31]
Paul
Craig Roberts criticized the jury's verdict in the
Padilla case as having "overthrown" the Constitution and doing far more
damage to the US' liberty than any terrorist could.[32]
Andy Worthington wrote "[Seventeen] years and four
months seems to me to be an extraordinarily long sentence for little
more than a thought crime, but when the issue of Padilla's three and
half years of suppressed torture is raised, it's difficult not to
conclude that justice has just been horribly twisted,
that the President and his advisors have just got away with torturing
an American citizen with impunity, and that no American citizen can be
sure that what happened to Padilla will not happen to him or her.
Today, it was a Muslim; tomorrow, unless the government's powers are
taken away from them, it could be
any number of categories of 'enemy combatants' who have not yet been
identified."[33]
Notes
1. BBC NEWS, Padilla given long
jail sentence
2. Saunders, Debra J. "Padilla's life and
Times," San Francisco Chronicle,
2004-04-27.
14. "Authorization for Use of Military
Force: Padilla v. Bush: Jose Padilla under the Joint Resolution," The Syracuse Journal of International Law
and Commerce, issued by the Syracuse University College of Law
15. Holding, Reynolds. "Courts affirm
rights of terror suspects / Judges reject Bush policies on prisoners in
Cuba and U.S.," San Francisco
Chronicle, 2003-12-19, p. A-1.
16. Arena, Kelli; Terry Frieden and Phil
Hirschkorn. "Terror suspect Padilla charged", CNN, 2005-11-22.
17. Barbash, Fred. "Padilla's Lawyers
Suggest Indictment Helps Government Avoid Court Fight," Washington Post, 2005-11-22.
18. Amy Goodman, Andrew Patel, Bill
Goodman. "Why did the Bush Administration Hold Jose Padilla for 3 Years
as an Enemy Combatant? No Mention of al Qaeda or Plot to Attack U.S. in
Indictment" (RTSP/RDP video; mp3 audio). Democracy Now.
19. McCaffrey, Shannon. "Indictment of
Padilla unveiled," Knight Ridder, 2005-11-23.
20. Hirschkorn, Phil. "Court rejects
government request to move 'enemy combatant,'" CNN, 2005-12-22.
21. Meyer, Josh. "U.S. asks justices to
transfer Padilla," Seattle Times,
Los Angeles Times,
2005-12-29.
22. Lichtblau, Eric. "Supreme Court Is
Asked to Rule on Terror Trial," New
York Times, 2005-12-29.
23. Greenhouse, Linda. "Justices Let U.S.
Transfer Padilla to Civilian Custody," New York Times, 2006-01-05.
24. "Judge agrees Padilla terror case
'light on facts' / Prosecutors ordered to back up their assertion
defendants conspired to injure, kill," MSNBC, Associated Press,
2006-06-21.
25. St. Onge, Jeff. "Appeals Court Renews
Charge Against Padilla," New York Sun,
2007-01-31.
26. Eggen, Dan. "More setbacks for case
against terror suspect / Legal debate flares over trying charges in a
criminal court," San Francisco
Chronicle, Washington Post,
2006-11-19. Retrieved on 2007-01-25.
27. Richey, Warren. "Was Jose Padilla
tortured by US military?" Christian
Science Monitor, 2007-02-16.
28. Blum, Vanessa. "Judge says 3 from
Navy brig must testify at terror suspect's sanity hearing," Sun-Sentinel, 2007-02-16.
29. "Padilla 'not fit to stand trial,'"
BBC, Thursday, 22 February 2007.
30. Weaver, Jay.
"Terror suspect hearing gets underway," Miami Herald, Feb. 22, 2007.
31. Jose Padilla Convicted-The Expanding
U.S. Machinery of Repression: "Thought Crimes," Preventive Detention,
and Torture. http://www.revcom.us/a/100/padilla-en.html.
32. "Padilla Jury Opens Pandora’s Box" by
Paul Craig Roberts, http://www.lewrockwell.com/roberts/roberts219.html.
33. "Why Jose Padilla’s 17-year prison
sentence should shock and disgust all Americans," by Andy
Worthington, http://www.andyworthington.co.uk/?p=207.
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