As the first war in American history in which the enemy is, for all
practical purposes, invisible (no visible troop formations, no
airstrips, no armor,) the declaration of permanent war together with
the claim of wartime powers by the Bush administration constituted a
permanent revocation of the Sixth Amendment's iron-clad guarantee of a
jury trial for any American charged with a crime. All that is
necessary now for the government to override this formerly "inalienable
right" is for terrorism to be alleged. 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. 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 governement 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. 1
CIA Director Micheal Hayden (Air Force General)
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.
|
 Padilla before dentist visit
|
 Navy Brig at Goose Creek, South Carolina,
where Padilla was held for 3 1/2 years in isolation.
|
The issue is not Padilla's
guilt or innocence, although now we many never know because his mind
was destroyed during his confinement. The issue is the egregious
violation of his rights as an American, in Bush's first test of
indefinite wartime powers. 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 indefinitely. 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, nation
against nation, from the War on Terror, in which the enemy is a network
with no formal hierarchy, no industrial military weaponry, and no
national
base. In traditional war, at some point, it is impossible
to maintain that the war has not come to an end. The War on
Terror presents 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 in "factual situation" from previous wars, nor the peril it
might pose to the
Constitution.
Judge J. Michael Luttig
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."
