Perhaps the most sinister attempt by the Bush administration to experiment on just how far it could employ the secret police techniques of totalitarian regimes on its own citizens was the case of Jose Padilla. Of course the administration knew it couldn’t get away with this on white “candidates,” or a black individual for fear of bringing the wrath of the Jacksons and Sharptons; so they picked the demographic that the public had already been prepared to “accept” such abuses against—Latinos. Earlier last month, the 9th Circuit Court of Appeals ruled that John Yoo, former Bush administration lawyer, could not be sued for or charged with falsely justifying the use of torture against Padilla, a U.S. citizen. The court based its ruling, to the surprise of many observers, on the “fact” that during the period in which Padilla was enduring torture in a U.S. prison, “torture” itself was not technically determined to be illegal, although it would subsequently be ruled illegal by the U.S. Supreme Court. The 9th decided that “Although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.”
Andrew Rosenthal of the New York Times charged that this was “just nonsense.” The court admitted that even if Padilla’s allegations were true--that he was “subjected to prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness…extreme variations in temperature; sleep adjustment; threats of severe physical abuse; death threats; administration of psychotropic drugs; shackling and manacling for hours at a time; use of “stress” positions; noxious fumes that caused pain to eyes and nose; loud noises; withholding of any mattress, pillow, sheets” which caused “chronic, extreme pain caused by being forced to endure stress positions” for which he was denied medical care--all of this could not be determined by a “reasonable” person to be deemed torture without being told, apparently. Padilla was also denied family visitation or legal counsel for almost two years while being held without charge, the time during which this torture took place. Rosenthal asked “At the time of Mr. Padilla’s detention, the Supreme Court hadn’t addressed whether prolonged shackling and manacling, death threats, and forced acid trips amount to torture. But was that really necessary?” In the first flush of paranoia after 9-11, it was “necessary” at least to “discuss” the issue and pretend the question was “unsettled,” as the Bush administration attempted to portray the question.
Let’s not wallow in niceties. Jose Padilla was the perfect candidate for legal experimentation on a U.S. citizen, not just because he was Latino, but presumably no one would care because he was a gang member and had more than a few arrests on his criminal resume, including a manslaughter conviction as a juvenile. He then converted to Islam, supposedly studying under an “Islamic teacher” who preached non-violence, a philosophy of which Padilla apparently made an effort to comply with. In 2001 and 2002, Padilla travelled to numerous Middle East countries. Upon his return from one of these trips in May, 2002 he was arrested as a “material witness,” allegedly in the production of a “dirty bomb”—or so the media was told. No actual evidence was ever provided to substantiate this claim, but the “circumstantial” evidence—mainly that Padilla had Islamic “connections” and had visited countries like Iraq and Afghanistan—was sufficient to cast suspicion on him.
Despite the lack of evidence, Padilla was declared by President Bush himself to be an “enemy combatant” subject to “extraordinary” conditions, and to be held indefinitely; that one of these conditions would be torture was not fully explained to the public. The Second Circuit Court of Appeals affirmed the administration’s actions, declaring that Padilla was "closely associated with al Qaeda, with which the United States is at war…engaged in war-like acts, including conduct in preparation for acts of international terrorism…He had intelligence that could assist the United States in warding off future terrorist attacks… He was a continuing threat to American security.” The problem was that the court was basing their decision on the word of the Bush administration, not on any factual evidence that any of this was actually true.
The attorney who eventually represented Padilla attempted to gain his release through a writ of habeas corpus, and after a muddled decision by a New York court, the Second Circuit—which had ruled earlier justifying Padilla’s detention—essentially reversed itself, declaring that “the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat.” Furthermore, Congress—not the president, had the right to suspend habeas corpus. However, Padilla remained in prison while the Bush administration appealed the case to the Supreme Court, which given its right-wing majority, cravenly denied the petition for habeas corpus not based on the case’s merits, but because the majority agreed with the administration’s contention that the writ was “improperly” filed.
After the case was refiled “properly” in South Carolina, the district court there ordered the government to charge or release Padilla. Again the Bush administration, hoping for the expected favorable ruling, appealed to the Supreme Court, which demurred, technically because the administration didn’t abide by the proper channels. The Fourth Circuit Court of Appeals, though conservative, nevertheless still stunned civil libertarians by merely citing the Congressional resolution authorizing military action as the “authority” in which Bush could legally detain a U.S. citizen without charge. In short, the Bush administration was being allowed to ignore all commonly understood legal and ethical standards of justice—the “standard” of a totalitarian state. Padilla’s lawyers argued that the court made a false reading of the authority, which was limited to those who aided the 9-11 attacks, and explicitly provided for the right of habeas corpus, which Padilla had been denied. By this reading, Padilla’s detention was illegal from the start.
Nevertheless, the Bush administration was running out of loopholes in the law, and after 3½ years finally charged Padilla with “conspiring to murder, kidnap and maim people overseas.” People who are not slow on the uptake may ask the question “What is this? What happened to the ‘dirty bomb’ plot that was the original justification for arresting Padilla?” The time period for the “crimes” Padilla allegedly committed now occurred in the 1990s—and not only that, nothing from the charges he now faced had any relevance post 9-11. Not only was Padilla being held—and tortured—on a mythical charge, but the new one seemed concocted to cover the administration’s ass. The status of “enemy combatant” was essentially made moot, and he was now charged in civilian court. According to how the Bush administration explained it to the media, Padilla was accused of “conspiring” with five men to “raise money and recruit volunteers” who allegedly would go to places like Chechnya, Bosnia, Somalia and Kosovo, allegedly to “murder” people. If that wasn’t enough to raise eyebrows, Padilla’s own involvement in this was admittedly no more than as a fringe character, someone who was just happened to be in the same area. Prosecutors were apparently hoping that the insinuation that he went to a “jihad training camp” in Afghanistan would be sufficient to prejudice the jurors. But red flags should have been raised when there was also no mention of an al Qaeda “link,” much as the administration failed to demonstrate such a link with Saddam Hussein. In fact, Padilla’s role was so minor, that it almost certainly was mostly pure invention by the Bush administration.
Yet once again, the administration got away with trampling on the civil rights of one of its own citizens. While the Fourth Circuit tried to block the administration’s move as a transparent attempt to avoid a decision by the Supreme Court on the legality of holding a U.S. citizen as an “enemy combatant” without the right of habeas corpus, the Supreme Court again greased the administration’s path by allowing the transfer of custody to occur, and ultimately declining to hear the case. The judge in the criminal trial in Florida criticized the government’s case as being “light on facts,” and dismissed the conspiracy to commit murder charge against Padilla. As 2006 dragged on into 2007, the Bush administration received another victory in its war against one man when the 11th Circuit Court reinstated the conspiracy to murder charge. Padilla’s lawyers then attempted to dismiss all charges, arguing that he had been illegally tortured during his time in prison; this was denied. What happened to Padilla during the years he was held without charge at a military brig in South Carolina is largely based on his testimony, but a memo authored by officers at the brig expressed concern that at least one other suspected “terrorist” held there was suffering “mental anguish” under conditions in which Padilla was similarly held.
Padilla was subject to a competency hearing; at the time it was noted that Padilla’s demeanor gave the appearance of a “piece of furniture” and he seemed to think that his own lawyers were part of the “interrogation team.” Nevertheless, Padilla was deemed “competent,” and the trial continued. The jury convicted Padilla on what could only be described as imaginary evidence—and more likely because he “looked” guilty of something. The question if the charges had any present relevance is something I’ve already mentioned; the fact that no proof was offered that any “illegal” activity that went beyond political discussions had occurred was apparently something the jury had not considered. After all, why, they might ask themselves, would the Bush administration go through such trouble to abuse the civil rights of a man who, after all was said and done, had not committed any actual “terrorist” act? There had to be some “reason” for it. Yet there was no evidence presented at all that Padilla had “recruited” anyone, or had any “tools of the trade” or had even “surfed” radical Islamic websites; the suggestion that he was involved in a “conspiracy” to murder people overseas was particularly grasping for thin reeds. The “best” the Bush administration could show was that he was guy who just happened to be in the same country as some other accused terrorists were located.
Padilla was sentenced to over 17 years in prison, which was an absurdly long sentence for the weak case against him. Yet four years after this outrageous sentence, the 11th Circuit Court, which had reinstated the conspiracy to murder charge the trial judge threw out, again stepped in to thwart common sense and justice by vacating the original sentence and demanding that the sentence be increased by at least 12 years. As for the 9th Circuit Court ruling last May, it completely sidesteps the issue of the violations of the civil rights of U.S. citizens, absurdly claiming that “For our purposes it is sufficient to say that it was not clearly established in 2002 that United States citizens detained as enemy combatants possessed the same substantive due process rights as other types of detainees.” No, this is not sufficient to justify the torture of U.S. citizens by its own government. The court bizarrely uses as “precedent” examples of people—including U.S. citizens—who were tortured in other countries, but could not “prove” their allegations, or they had no standing in the quest to sue for damages against the torturers.
The upshot here is that once the precedent is established for federal authorities to declare war on a citizen and get away with it, then who is safe? Is this an example of what right-wing anti-government conspiracy theorists would point toward to bolster their claims? No, because this was done by a right-wing administration that targeted a despised Latino as a guinea pig for its test case for its illegal and unconstitutional actions.
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