Court Allows Padilla Suit Against Yoo To Proceed
Jose Padilla was arrested at O'Hare International Airport on May 8th, 2002, for what the government said was a plot to set off a "dirty bomb," a conventional explosive which scatters radioactive material over a broad area. The Fourth Circuit Court, in an opinion written by Judge J. Michael Luttig, upheld the government's claim that it had the power to hold Americans as "enemy combatants" indefinitely, but the true test of the executive order's constitutionality, the Supreme Court, was avoided at the last minute when the administration suddenly released Jose Padilla to the civilian courts for trial. By that time, Padilla had been held for 3 1/2 years in near total isolation in a special wing of the Navy Brig at Goose Creek, South Carolina.
Notable about the Padilla case is that the government's allegations changed a number of times. It was first alleged that Jose Padilla, a former Chicago gang member, planned to set off a "dirty bomb."
Later, that allegation was dropped, and the government said instead that Padilla had planned to blow up apartment buildings using natural gas. At his eventual civilian trail, neither of these allegations was even mentioned. In the absence of formal charges, allegations took the form of press releases from the government. Padilla was not allowed to speak to an attorney until 2 years into his confinement, and not until his civilian trial did he have the chance to answer any allegations. The main charge finally filed formally against Padilla was "conspiracy to murder, kidnap and maim persons in a foreign country" during a visit to the Middle East in 2000, which his lawyers say was for the purpose of studying Arabic and the Koran after a conversion to Islam.
At his eventual trial, the principle piece of evidence against Padilla was an Al Qaeda "application form" he had purportedly filled out to attend an Al Qaeda training camp in 2000, complete with a line for "address for emergency contact (optional)." Defense lawyers argued that Padilla had traveled to the Middle East to study Islam and Arabic, not to participate in violent Islamic jihad. The main supporting piece of evidence for Padilla's arrest warrant in 2002 was testimony by terror suspect Abu Zubaydah, which was obtained, Padilla's lawyers claim, under torture by the CIA. The tapes of the Abu Zubaydah's interrogation are among those which generated controversy when CIA Director Michael Hayden disclosed that the tapes had been destroyed.
During his 3 1/2 year detention, Padilla's lawyers said he was subject to hooding, stress positions, assaults, and threats of imminent execution.
Warren Richey of the Christian Science Monitor reported:
"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....[Padilla's captors] punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds."
Padilla also stated that he was "injected with a ‘truth serum,’ a substance his lawyers believe was LSD or PCP. Deprived of any view of the outside world, with the lights always kept on, Padilla had no way of knowing what time of day it was or what day of the week.
In his affidavit filed during Padilla's civilian trial, his attorney Andrew Patel said, "I was told by members of the brig staff that Mr. Padilla's temperament was so docile and inactive that his behavior was like that of ‘a piece of furniture.' " Patel described how it was difficult to work with Padilla in his defense, because "Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government's interrogation scheme." Padilla was especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day.
Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit that Padilla "lacks the capacity to assist in his own defense...During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body."
At his trial, prosecutors asked, and Judge Marcia Cooke granted, that no mention be allowed of Padilla's 3 1/2 years in military detention to the jurors. However, the prosecution was allowed to show, on a wall-sized screen, a 7-minute video of a Bin Laden speech which had nothing to do with the case.
Court Review Neglects Novel Facts of War on Terror
Defenders of the government's actions cite the legal precedent of Ex parte Quirin, which the Fourth Circuit Court of Appeals relied upon to uphold the government's power to hold American citizens incommunicado, without charges, during war time. However, according to any standard law dictionary, a prior decision must have "a similar question of law and factual situation" in order to serve as a precedent (Merriam-Webster Dictionary of Law.) In Quirin, a number of German-Americans were held as enemy combatants after being accused of spying for Germany during World War II.
The Fourth Circuit Court opinion, written by Judge J. Michael Luttig, never addressed any differences in "factual situation" which might distinguish the traditional form of war, against a nation-state with a tangible army, from the War on Terror, against a terrorist network with no formal hierarchy, no industrial military weaponry, and no national base. In traditional war, at some point, it would be impossible to maintain that the war had not come to an end. The War on Terror presented no such limitations. Soon after 9/11, George Bush took pains to proclaim the War on Terror's infinite time horizon, by announcing in a speech before a joint session of Congress on September 20, 2001, that it was "a task that does not end." The Luttig court made no mention of this difference from previous wars, nor the peril it might pose to the Constitution.
After his 3 1/2 years of isolation and torture during military detention, Padilla was nonetheless ruled fit to stand trial. His lawyers objected that the isolation and torture had rendered him mentally incompetent, that he was a broken man. He was convicted and sentenced to 17 years in prison regardless. He is now incarcerated at Supermax Federal Prison in Florence, Colorado.
The most important result of the Padilla case was to firmly establish the precedent that American citizens may be held, tortured, and denied access to the civilian courts indefinitely, upon their designation by the executive branch as an "enemy combatant," in the open-ended "war on terror."