Accused terrorist Jose Padilla wants to describe how he was treated in a military brig. The government is trying to keep him quiet.

Newsweek.com
Terror Watch: Showdown Over Padilla
Accused terrorist Jose Padilla wants to describe how he was treated in a military brig. The government is trying to keep him quiet.
By Michael Isikoff and Mark Hosenball

Nov. 29, 2006 - A looming court fight over claims that one-time enemy combatant Jose Padilla was “tortured” by the U.S. military is threatening to create new difficulties for one of the Bush administration’s most high-profile terrorism cases.

In a motion last week, the Justice Department asked a federal judge to block any public testimony about the circumstances of Padilla’s interrogations during the more than three years he was detained and interrogated in a military brig in South Carolina. For most of that time, Padilla, a 35-year-old Brooklyn-born U.S. citizen who was raised in Chicago, was held incommunicado, unable to meet with his lawyer or any other visitors.

Even permitting Padilla’s lawyers to raise the issue of his alleged mistreatment, prosecutors argued, may “inflame the jury” and invite “jury nullification”—the term used to describe what happens when rebellious jurors declare a defendant not guilty, no matter what the evidence, because they are so offended by the government’s conduct. (The prosecutors also say there is “not a shred of record evidence” to back up Padilla’s claims that he was tortured and asserted that the “conditions of his confinement were humane and designed to ensure his safety and security.”)

But defense lawyers are convinced that given the seriousness and the specificity of Padilla’s claims of mistreatment—many of which involve the use of aggressive interrogation techniques virtually identical to those the Pentagon has confirmed using at Guantánamo—the judge in his case, Marcia Cooke, may have little choice but to order a pretrial hearing on his allegations.

Padilla’s lawyers say they will soon file “additional material” to back up their torture claims. And if Cook grants them a hearing, it could open the door for the first time to questioning in a U.S. courtroom about controversial interrogation methods that were used against one of the most sensitive detainees in U.S. government custody. Padilla's fate is all the more important because his incarceration by the U.S. military was directly ordered from the White House by President Bush.

The matter could prove even more awkward because, according to a source close to Padilla’s defense team—who asked not to be identified talking about sensitive matters—any hearing could end up requiring the Pentagon to turn over highly classified video and audiotapes allegedly made of Padilla’s interrogation sessions at the U.S. military brig in Charleston, S.C. The content of the tapes has been the subject of recent discussion among lawyers in the case, the source said.

Cmdr. J. D. Gordon, a Pentagon spokesman, declined to comment on the existence of any secret tapes made of Padilla’s interrogation sessions. “We don’t comment on cases that are under litigation,” he said. Asked about interrogation tapes, Anthony Natale, one of Padilla’s defense lawyers, said: “It would be unlawful for me to make any comment about that matter.” The court docket in Padilla’s case shows that a number of recent motions have been filed in the case under seal in order to avoid public disclosure of material that remains classified.

Padilla’s story first became public on June 9, 2002, when Attorney General John Ashcroft announced in a press conference from Moscow that the former Chicago gang member had been apprehended a month earlier coming into the country because he had plans to carry out a radiological “dirty bomb” attack on behalf of Al Qaeda. That same day, President Bush signed an extraordinary order declaring that Padilla, who converted to Islam while living in Florida, was “closely associated with Al Qaeda” and was “an enemy combatant” in the war on terror. Padilla was then removed from the criminal justice system, stripped of his constitutional rights—including the right to consult with his lawyer—and dispatched to the military brig.

But last year, in what was widely seen as an attempt to avoid a potentially adverse U.S. Supreme Court ruling on the constitutionality of President Bush's actions, Padilla's case was abruptly transferred back to a regular criminal court, where he was indicted on charges that he was part of a North American “jihad” cell that supported Islamic extremists overseas. The indictment made no mention of any plans to set off a “dirty bomb”; law-enforcement officials have since acknowledged that the supposed dirty-bomb attack, which was based on claims made by other Al Qaeda detainees, never got beyond the talking stage anyway.

But the Justice Department’s efforts to criminally prosecute Padilla have run into repeated problems. Judge Cook dismissed the most serious conspiracy count against him, removing the possibility that he will receive a life sentence. The case took a further unexpected turn last month when Padilla’s lawyers filed a highly detailed 20-page motion alleging that all the criminal charges against him should be dismissed because of “outrageous government conduct,” including a claim that he was forcibly administered mind-altering drugs in an effort to get him to provide information about his alleged Al Qaeda accomplices.

Among the specific allegations made in the motion were claims that Padilla was kept in a state of “complete sensory deprivation,” confined for months at a time in a “tiny cell” where the temperatures were manipulated to “extremely cold” levels and “noxious fumes” were introduced, causing his eyes and nose to run. Loud clanging noises were repeatedly heard making it impossible for him to sleep, the motion stated. Padilla himself was hooded, forced to stand in uncomfortable stress positions and kept “shackled and manacled with a belly chain,” the motion further states. He was also threatened with being forcibly removed from the United States to another country, including the U.S. Naval Base at Guantánamo as well as threatened with being cut with a knife and having alcohol poured on his wounds, it says.

“Often, he had to endure multiple interrogators who would scream, shake and otherwise assault Mr. Padilla,” the motion states. “Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylmamide (LSD) or phencyclidine (PACP) to act as a sort of truth serum during his interrogations.”

Gordon, the Pentagon spokesman, said in response: “The government in the strongest terms denies Padilla’s allegations of torture—allegations made without support and without citing a shred of record evidence. It is our policy to treat all detainees humanely.”

But at least some of the allegations in Padilla’s motion mirror claims that were first made by FBI agents and lawyers for detainees held at Guantánamo and which were later confirmed by the U.S. military. An investigation ordered by Gen. Bantz J. Craddock, commander of the U.S. Southern Command, found last year that military interrogators at Guantánamo did in fact subject some detainees to yelling and loud noises, disrupt their sleep patterns, lower the temperatures in their cells to make them uncomfortable—all in an effort to “lower their resistance” and get them to provide interrogators with more information. The report found that in 2002, Secretary of Defense Donald Rumsfeld himself approved sleep deprivation as an authorized technique to use against one particularly high-value detainee, a Saudi prisoner named Mohammed Qahtani who was suspected of being the 20th hijacker in the 9/11 attacks. Rumsfeld also approved the use of adjusting the air conditioner to extremely cold levels in the interrogation of a second Guantánamo detainee, the report found.

It is still far from clear that, even if Judge Cook orders a hearing on Padilla’s claims, it will make a difference to the outcome of his case. Prosecutors have argued that because they are not planning on using any evidence derived from Padilla’s interrogations, the circumstances of how he was treated make no legal difference. Cook would essentially have to find that the treatment of Padilla “shocks the conscience” of the court—a heavy legal burden—for the case against him to be dismissed.

But defense lawyers may have hinted at the ultimate significance of their claims in a portion of their motion last month, when they referred to the “psychological damage” done to Padilla as a result of the aggressive methods used against him. Natale, Padilla’s lawyer, said the defense will expand on this reference in a court filing that may be filed by the end of the week. One possibility is that Padilla’s lawyers will ask that he be deemed incompetent to stand trial, said the source close to Padilla’s defense team who declined to be identified. In court hearings and in private meetings, the source said, Padilla has shown signs of being withdrawn, unable to communicate or respond when questions about what happened to him arise. “It’s almost like you’re dealing with a turtle,” the source said.

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