Jose Padilla and America’s Descent into Fascism

Update: Verdict Reached in Padilla
Case; to be read at 1:00 Central.

[- with thanks to the University of Wisconsin-Madison Memorial Library reference department -]

Warren Richey’s three-part series in the Christian Science Monitor shines a light on the tyranny and inhumanity of the Bush regime—functioning with the passive compliance and active participation of assorted generals, admirals, prison guards, flacks, hacks and flunkies and one U.S. District Judge, Marcia G. Cooke.

Reading Richey’s work is an experience, an endurance exercise in revulsion and anger at all—and that ought to include us—who let this obscenity occur in our country, in our names.

Links to the series:

US terror interrogation went too far, experts say; Reports find that Jose Padilla's solitary confinement led to mental problems.

Investigators broke Padilla with intense isolation; Despite warnings, officials used 43 months of severe isolation to force Jose Padilla to tell all he knew about Al Qaeda.

Beyond Padilla terror case, huge legal issues; His detention and interrogation in the US raises basic constitutional questions.

Editorial - A verdict on Padilla – and the USA; Monitor series reveals the damage done to a citizen's rights and thus the US ability to wage this war.

George W. Bush. Bush is of-course most responsible for this obscenity.

America does have an enemy combatant in our midst; and he works in the White House.

Some highlights from the series:

Jose Padilla had no history of mental illness when President Bush ordered him detained in 2002 as a suspected Al Qaeda operative. But he does now.

The Muslim convert was subjected to prison conditions and interrogation techniques that took him past the breaking point, mental health experts say.

Two psychiatrists and a psychologist who conducted detailed personal examinations of Mr. Padilla on behalf of his defense lawyers say his extended detention and interrogation at the US Naval Consolidated Brig in Charleston, S.C., left him with severe mental disabilities. All three say he may never recover.

Beyond the outcome of his Miami trial, larger issues loom. Chief among them, legal scholars say, is whether Mr. Bush acted within his constitutional authority when he ordered Padilla, a United States citizen, held without charge as an enemy combatant at the brig for three years and seven months.

Padilla's treatment in the brig raises another issue, these scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind.

The judge in Padilla's criminal case has already ruled that Padilla is suffering from a mental disability, but she refused to allow defense lawyers to explore the issue of whether the disability was caused by Padilla's treatment in the brig.

"He is not the same man who was taken into custody in 2002," says Angela Hegarty, a forensic psychiatrist in New York who spent 22 hours examining Padilla. "Whatever happened to him in there has radically changed him."

Stuart Grassian, a Boston psychiatrist, says Padilla's experience in the brig has left members of his family stunned and frightened. "People who have known him and loved him before his military detention don't feel they can even bear to see him because he is so clearly mentally ill."

Padilla is a US citizen who was arrested and detained on US soil. Because of this status, his case was closely followed at the highest levels of the US government. The president himself signed the order authorizing Padilla's detention.

In 2002, the Justice Department produced a "torture" memo stating that victims would have to experience pain equivalent to organ failure to prove torture.

"The development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which can last a considerable period of time if untreated, might satisfy the prolonged harm requirement" to prove torture, the memo says.

Drs. Hegarty and Grassian say Padilla's psychological condition exceeds even the high standard for mental damage set by the 2002 torture memo. "This whole issue of torture turns on the question of what are the types of effects that one would expect from putting a person in this situation in the brig," says Grassian. "If you would expect a person to become so deranged as to become psychotically terrified, to me that constitutes torture."

Some psychological tests place him on par with individuals who have suffered brain damage ...

Padilla's treatment in the brig is classified as a state secret.

During her week-long effort, (Dr.) Hegarty would arrive each morning to discover Padilla once again unwilling to talk. She says the experience was like the movie "Groundhog Day," in which the same events repeat over and over. "The 22 hours I spent with him, it was like it never happened," Hegarty says. "It was chilling."

Grassian relates in his report that Padilla's mother found it emotionally difficult to visit her son in Miami because it involved observing his diminished mental condition. Padilla tried to reassure her that he was fine, that the government was treating him very well. At one point, Grassian says, Padilla suggested that his mother write directly to Bush to help her speed through red tape to arrange her next visit. The president was sure to help her out, Padilla assured his mother.

"It was utterly irrational," Grassian writes in his report. "After all, it was President Bush who had ordered him detained as an enemy combatant."
Padilla's mother became increasingly anxious. Finally she confronted her son: "Did they torture you?" she asked.

"He turned towards her, his face grimacing, his eyes blinking, and in panic and rage he demanded: 'Don't you ever, ever, ask that question again,' " the Grassian report says.

What makes Padilla's case especially challenging from a psychological perspective is that he denies having any symptoms of psychological distress. Experts say it is an attempt by Padilla to avoid being viewed in any way as mentally disturbed.

"He was told not to talk about what happened in the brig and that if he ever spoke about what happened, people would think he was crazy," Hegarty says. "This admonition has power over him," she says. "He becomes visibly terrified as he is saying it."

Critical focus on the brig

"As soon as you try to approach a subject related to the brig he starts grimacing and you can just see he becomes mentally disorganized. Anyone who watched this with a reasonably unbiased eye would find it so creepy," Grassian says. "You can see the terror come out of him."

It is unclear what Padilla thinks about the possibility of an acquittal in Miami. But Hegarty says that if Padilla's lawyers win the case it could mark the worst possible outcome for him. That's because the president might try to move Padilla back to his old cell in the brig.

"There is no question in my mind that his first and most important priority is to not go back to the brig," Hegarty says. "This is what leaves me chilled, if one were to offer him a long prison term or return to the brig, he would take prison, in a heartbeat."

When Padilla's case originally reached the high court in 2004, it was dismissed on technical grounds by a 5-to-4 vote. The vote allowed the continued harsh treatment of Padilla.

Justice John Paul Stevens, a US Navy intelligence officer during World War II, filed a dissent. He quoted a 1949 opinion by then Justice Felix Frankfurter.

It said: "There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this court should not be ignorant as judges of what we know as men."

In May 2002, a month before he entered the brig, Padilla was taken into custody, held in New York City, and given access to a court-appointed lawyer, Donna Newman. Two years later, when the Bush administration first allowed Padilla to see his lawyers again, Ms. Newman and another attorney visited.

"There is no question he had changed," Newman says. "Prior to his being held in South Carolina there was no reason to suspect that he had any kind of [mental] problem."

Investigators broke Padilla with intense isolation

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.
Padilla is on trial in Miami on charges that he became a willing recruit and attended an Al Qaeda training camp in Afghanistan. Padilla denies the allegations. Jury deliberations in the three-month trial are expected to begin this week.

Although the issue of Padilla's treatment in the brig arose briefly in the Miami case, no judge has ruled on its legality.

According to defense motions on file in the case, 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.

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, these experts say. And that makes it a potential instrument of torture, they add.

When then-Defense Secretary Donald Rumsfeld approved isolation as an aggressive interrogation technique for use at Guantanamo Bay, Cuba, Defense Department lawyers included a warning. "This technique is not known to have been generally used for interrogation purposes for longer than 30 days," the April 2003 memo reads in part. Longer than that required Mr. Rumsfeld's approval.

By April 2003, Padilla had already spent 10 months in isolation at the brig. Ultimately, he was housed in the same cell, alone in his wing, for three years and seven months, according to court documents.

So-called coercive interrogation methods — including isolation — have been specially authorized for certain units in the military and the Central Intelligence Agency.

The technique is not new. The Soviets used isolation and sensory deprivation to identify and discredit political dissidents

US prisoners of war confessed to nonexistent war crimes in the Korean War after similar treatment.

Fear of "brainwashing" prompted the CIA and Defense Department to underwrite research in the 1950s and '60s into the impact of isolation and sensory deprivation. The findings were included in a 1963 CIA handbook, later declassified. The book discusses the possible use of such techniques, including isolation. But it warns of the "profound moral objection" of applying "duress past the point of irreversible psychological damage."

That's what happened in Padilla's case, says Grassian. "It is clear from examining Mr. Padilla that that limit was surpassed."

He has "undergone a profound, tremendously prolonged psychological stress involving extended periods of utter isolation and deprivation," the psychiatrist writes. Grassian's report concludes: "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."

Padilla has referred to this period as the "terrible time."

"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," Grassian writes. Other than the brief checks by brig guards, Padilla went through stretches of 34 days, 17 days and 15 days without any human contact, the report says. "And when he did have such contact, it was inevitably with an interrogator," Grassian says.

That was by design. Vice Adm. Lowell Jacoby, director of the Defense Intelligence Agency, revealed a portion of the government's interrogation strategy in a 2003 court affidavit. "The Defense Intelligence Agency's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and interrogator," he 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." Admiral Jacoby wrote the affidavit to urge a New York federal court not to allow Padilla to consult his lawyer.

(A)s an enemy combatant, he was stripped of every other constitutional protection and right, including the right to know that a constitutional challenge had been filed on his behalf.

Many legal scholars and intelligence experts say Padilla's ordeal highlights the danger of a government that obtains information through secret, coercive means and then selectively releases some of it to justify its actions.

"This is the hallmark of an authoritarian state," says Larry Johnson, a former State Department counterterrorism official and former analyst at the Central Intelligence Agency.

"At many of the points at which the government said 'dirty bomb,' there was no opportunity to respond for the reason that Mr. Padilla was in solitary confinement and no lawyer had been able to talk to him about the charges," says Diane Amann, visiting law professor at the University of California, Berkeley.

Although they seek a life sentence, prosecutors introduced no evidence of personal involvement by Padilla in planning or carrying out any specific terrorist plot or violent act.

There is a reason the government's case is so thin, legal analysts say.
If prosecutors brought the dirty-bomb plot or other alleged illegal actions by Padilla into the Miami case, it would open the door for courtroom scrutiny of the government's use of coercive interrogation techniques against Al Qaeda suspects, including Padilla. And that would have taken jurors deep into the shadowy underside of America's war on terror – a journey in Padilla's case that wends its way from his cell on an isolated wing of the US Naval Consolidated Brig in Charleston, S.C., through covert CIA interrogation sites overseas to an alleged torture chamber in Morocco.

This is a part of the war on terror the Bush administration would rather keep quiet. But details are emerging.

What they reveal is the aggressive – and at times, ruthless – pursuit of intelligence information, and the selective public release of some of that intelligence when it serves the administration's goals.

Plot hit airwaves in 2002

The Padilla story burst into the national consciousness in June 2002 when then-Attorney General John Ashcroft interrupted a trip to Moscow to make a dramatic televised announcement.

"We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb,' " he said. Padilla was a "known terrorist" who had trained with Al Qaeda, studied how to wire explosives, and researched radiological dispersion devices, he told the world.

What he didn't say was that Padilla had been locked in a solitary confinement cell in New York City for the past month and that Padilla was only now being taken into military custody on the eve of a scheduled court hearing that would have required the government to legally justify Padilla's continued detention.

Instead, President Bush declared Padilla an "enemy combatant" who posed a "continuing, present, and grave danger" to US national security. The president said Padilla possessed intelligence information that could help prevent Al Qaeda attacks on the US.

Although civil libertarians protested Padilla's detention without charge, there was no significant public outcry.

Senior Bush administration officials made clear that once an individual is classified as an enemy combatant, he is no longer entitled to the protections of the Geneva Conventions and the US Constitution.

Because Padilla was held in solitary confinement under secret conditions, no one was aware of what was happening to him. The initial constitutional debate revolved around whether Padilla had a right to consult a lawyer or whether the government could hold him in isolation indefinitely.

In February 2004, then White House Counsel Alberto Gonzales told a meeting of the American Bar Association that citizens who take up arms against America don't deserve legal counsel. Any individual rights, he said, "must give way to the national security needs of this country to gather intelligence from captured enemy combatants."

Two months later, lawyers were arguing Padilla's case before the US Supreme Court. Justice Ruth Bader Ginsburg wanted to know if there was any check on the powers being claimed by the executive branch to collect intelligence through coercive interrogations. "Suppose the executive says, 'Mild torture, we think, will help get this information'?" she asked. "Some systems do that to get information."

"Well, our executive doesn't," said then-Deputy Solicitor General Paul Clement.

A few minutes later, Justice Antonin Scalia, an anchor on the court's conservative wing, said he found nothing in his research to support Bush's assertion of unchecked authority to wage the war on terror. "It doesn't say you can do whatever it takes to win the war," he said.
His comment raised a huge red flag for the administration. That evening, coincidentally, the CBS program "Sixty Minutes II" broadcast the first images of detainee abuses at Abu Ghraib in Iraq.

A month later, at the height of the Abu Ghraib scandal and with Padilla's case pending at the Supreme Court, the Justice Department held a highly unusual press conference. Officials announced that after two years of interrogation, Padilla had confessed to involvement in the dirty-bomb plot and other activities with Al Qaeda.

Padilla's Supreme Court case was dismissed by a 5-to-4 vote on a technicality. The justices said Padilla's lawyers should have filed their suit in South Carolina rather than New York. Scalia provided the key fifth vote in a decision that effectively allowed the administration to continue to hold and question Padilla in the brig.

Padilla's lawyers filed a new suit in South Carolina and, by 2005, were again at the steps of the Supreme Court. But rather than allow an airing of the issue at a high court that many analysts believe to be sympathetic to Padilla, the administration transferred him from military custody into the criminal-justice system.

With jury deliberations about to begin in Miami, legal scholars expect more major twists and turns in the Padilla saga. Among moves to watch:
•If Padilla is acquitted, will the government try to return him to the brig?
•If Padilla's lawyers file a civil suit to try to get his military detention case before the Supreme Court again, will the government argue that such a suit must be immediately dismissed to avoid revealing state secrets?
When Federal Bureau of Investigation agents first took Padilla into custody, administration officials thought they had nabbed an intelligence prize. Five years later, legal and intelligence analysts say, these claims look increasingly hollow as the administration maneuvers to keep Padilla from having a meaningful day in court. Its tactics are also keeping the public from knowing the truth about Padilla and the dirty-bomb plot, they say.

"You don't go on the Internet and spend a day reading and become an expert on how to put together a dirty bomb," says Mr. Johnson, the counterterrorism expert. "I'm not knocking folks who work at Taco Bell, but that's not a place you'd go to ramp up your skills" as a nuclear jihadist.

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