Chapter 4, Part 2 – A Ponzi Scheme of Torture

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Part 2: The Story Unravels

In November 2005, President George Bush signed a memorandum to Secretary of Defense Donald Rumsfeld that read

Based on the information available to me [redacted] I hereby determine that it is in the interest of the United States that Jose Padilla be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States , I hereby direct you to transfer Mr. Padilla to the control of the Attorney General upon the Attorney General's request. This memorandum supersedes my directive to you of June 9, 2002, and, upon such transfer, your authority to detain Mr. Padilla provided in that order shall cease.1

The order came a week before the administration's deadline for filing a Supreme Court brief in answer to Padilla's habeas corpus petition, and this time it was clear that the justices intended to hear the case.

The year before, in June 2004, the Justices had decided Yaser Hamdi's habeas petition, ruling that though Congress had authorized the president to detain enemy combatants captured on the Afghan battlefield, Hamdi was entitled to a fair process to challenge his enemy combatant designation; Hamdi's incommunicado detention in a naval brig had not provided such a process. “An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker,” Justice Sandra Day O'Connor wrote famously in the Court's plurality opinion. “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens.”2 Faced with a requirement that it bring Yaser Hamdi's case before a “neutral decision-maker,” the administration had instead quietly released Hamdi in October 2004, deporting him to Saudi Arabia where he was freed on the condition he renounce his U.S. citizenship, accept a ban on travel to the U.S. and several other countries, and promise not to sue the United States over his detention.

Now it was to be Padilla's turn. His attorneys had refiled his habeas corpus petition in South Carolina against the commander of the Charleston brig, and in March 2005 a federal judge had ruled that the case was “a law enforcement matter, not a military matter” and given the government 45 days to charge him or set him free. The administration appealed directly to the Supreme Court, but the court again dodged a hearing, saying the Fourth Circuit Court of Appeals—generally considered the most conservative appellate court in the country—must review the district court's decision first. On, September 9, 2005, Judge J. Michael Luttig issued a unanimous opinion on behalf of a three-judge panel of the Fourth Circuit court that read,

The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.3

Both Luttig and the administration knew the opinion would be reviewed by the Supreme Court. So to avoid a ruling that Padilla was entitled to have a hearing on whether he was the would-be apartment building and “dirty” bomber the administration had been portraying, President Bush executed the transfer order on November 20. Two days later, Attorney General Alberto Gonzales held a press conference in New York to announce that a federal court in the Southern District of Florida had returned an indictment charging Padilla “with providing—and conspiring to provide—material support to terrorists, and conspiring to murder individuals who are overseas.” Gonzales explained,

The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in “violent jihad”—a short hand term to describe a radical Islamic fundamentalist ideology that advocates using physical force and violence to oppose governments, institutions, and individuals who do not share their view of Islam. These groups routinely engage in acts of physical violence such as murder, maiming, kidnapping, and hostage-taking against innocent civilians.

Mr. Padilla is now a new co-defendant—along with Canadian national Kassem Daher—in a criminal prosecution that previously charged defendants Adham Hassoun, Mohomed Youssef, and Kifah Jayyousi with terrorism-related crimes. All of these defendants are alleged members of a violent terrorist support cell that operated in the United States and Canada.4

“As you know, under our criminal justice system all defendants are presumed innocent unless and until proven guilty,” Gonzales added, without a hint of irony.

The indictment of the man the administration had publicly condemned as a “bad guy” who had been apprehended on his way to carry out attacks calculated to cost scores, perhaps hundreds, of American lives made no reference whatsoever to this murderous conspiracy. Instead, Padilla and his co-defendants were now charged with operating and participating “in a North American support cell that sent money, physical assets, and mujahideen recruits to overseas conflicts for the purpose of fighting violent jihad.” The most serious charge, Count 1 of the indictment, alleged Conspiracy to Murder, Kidnap, and Maim Persons in a Foreign Country; “Beginning at a time uncertain, but no later than in or about October 1993, and continuing until on or about November 1, 2001,” the indictment read, the five defendants “did knowingly and willfully combine, conspire, confederate, and agree with others, known and unknown to the Grand Jury, to commit at any place outside the United States, acts that would constitute murder, that is, the unlawful killing of human beings with malice aforethought, kidnapping, and maiming…and did commit one or more acts within the jurisdiction of the United States, to affect the purpose and object of the conspiracy.”5

Nearly all of the group's alleged activities had taken place in the eight years preceding 9/11, and their “purpose and object” had nothing to do with the United States or its citizens; rather, the group was accused of supporting and participating in “armed confrontations in specific locations outside the United States” “for the purpose of opposing existing governments and civilian factions and establishing Islamic states under Sharia.” Over that eight-year period their countries of concern included Chechnya , Bosnia , Libya , and Somalia ; in 1998, when Padilla left the US , the group's main interest was Kosovo, where war had broken out that year. The indictment alleged that Padilla had gone to Egypt to study with financial support from the group; two years later, on July 24, 2000, he filled out a “Mujahideen Data Form,” in essence a training camp application; a few months later, the indictment asserted, phone calls intercepted in 2000 showed that Padilla had entered Afghanistan , presumably for training.

Marcy Wheeler 04/13/10: These stategies of moving from civilian to military courts and attempting to craft charges from before the period of abuse were used in other cases as well. For the former, there's al-Marri. And for the latter, the same thing was done with Abu Zubaydah and Ghailani, at least.

Judge Luttig—who had referred to Padilla in his opinion as someone who took up arms against the United States on behalf of al Qaeda and traveled to the U.S. to wage war on American soil—was so incensed at the indictment and the apparent arbitrariness of Padilla's treatment that he rejected the government's request to authorize Padilla's transfer to civilian custody, insisting that he should remain in the brig in order to force the Supreme Court to review his own court's decision on the scope of presidential powers. But the administration went over his head, petitioning the Supreme Court directly to grant the transfer request, and on and January 3, 2006 Padilla was released from the Charleston brig and flown to the Federal Detention Center in Miami.

In a pre-trial hearing in Miami in June, U.S. District Judge Marcia G. Cooke called the government's indictment “light on facts” and ordered prosecutors to turn over more specific information about its allegations.6 Two months later, on August 21, 2006, she dismissed the conspiracy to murder charge, ruling it duplicated the two other material support-related charges, dropping Padilla's maximum sentence if convicted from life to 15 years in prison.7 Meanwhile, with the government again seeking to avoid scrutiny of Padilla's treatment by pledging it would introduce no evidence gathered in the brig, Padilla's attorneys were pursuing two strategies to bring his interrogation into Judge Cooke's courtroom—the first an assertion that his torture he had left him unable to participate effectively in his own defense and therefore incompetent to stand trial, and the second a motion to dismiss the case for “outrageous government conduct.”

Padilla's attorneys subpoenaed Navy records and other information about his time in the brig to help build their case, and among the materials the government turned over to his attorneys were 87 videotapes of Padilla in the brig. New York Times reporter Deborah Sontag viewed a scene from one of them in early December. The recording documented a mundane event: “Today is May 21,” a voice tells the camera. “Right now we're ready to do a root canal treatment on Jose Padilla, our enemy combatant.”8 Sontag's Times story included a still frame from the video, an indelible image of Padilla in blackout goggles and headphones surrounded by three corpsmen in camouflage riot gear.9 In a subsequent NPR interview, she described what she had seen on the videotape this way:

Several guards approached the door of the cell in full riot gear. They unlock a rectangular panel at the bottom, and you see these feet - kind of pale feet - slide out through the hole. He's shackled. They then unlock a panel on the top. His hands come out and are cuffed.

They unlock the door and they all push into the cell, turn him around, tie his cuffed hands to a metal belt at his waist so that he's completely chained, swivel him around and lead him out the door, at which point—very, very briefly—he gives the appearance of being somewhat catatonic. And he raises his head briefly. His eyes meet the camera completely blankly.

His head goes back down, and they put sort of a blackened ski mask over his eyes and very large noise-blocking headphones over his ears. And then the guards put their leather black-gloved hands on his shoulders and they all—they walk this masked, clanking prisoner down the hall to the dentist, and then he has a two-hour root canal procedure.10

Matthew Alexander 04/08/10: Compare this treatment to Japanese POWs who often weren't even handcuffed for transportation. The legendary WWII interrogator Major Sherwood Moran said, "Better to let the prisoner forget you are enemies than to remind him."

This treatment was not disciplinary. Padilla was by all accounts a model prisoner; in an affidavit submitted in support of the motion for a mental competency hearing, attorney Andrew Patel reported that on one of his visits to the brig, the brig staff had told him that “Mr. Padilla's temperament was so docile and inactive that his behavior was like that of ‘a piece of furniture.'” Patel added, “I was also told that the Brig staff was concerned about the damage that could occur from the extended isolation that Mr. Padilla experienced in the Brig.”11

Patel, who first visited Padilla with co-counsel Donna Newman on March 3, 2004, met with his client “ten or eleven times” in the Charleston brig. During one of those meetings, Patel recalled,

I asked him a question concerning a simple fact based on an event that had happened prior to his arrest. In observing Mr. Padilla's physical reaction to this question, I noted that his posture changed from relaxed to bolt upright in his chair. He began to blink his eyes and he appeared to have goose bumps on his arms and his neck. Mr. Padilla's reaction to my innocuous question was the same reaction that I would have expected if he had been stuck by a cattle prod.12

“Mr. Padilla retains the belief that he will be returned to the Brig if he discusses events that occurred there,” Patel concluded. Despite repeated meetings and conversations about his defense, Patel said, “as of the date of this affirmation, 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.”13

To Angela Hegarty, a forensic psychiatrist who examined Padilla and submitted an affidavit in his defense, Padilla exhibited some of the characteristics associated with “Stockholm Syndrome,” the condition in which captives form intense bonds with their captors. “Mr. Padilla tends to identify with the interests of the government more than his own interests at times,” she wrote.

For example, after defense counsel cross-examined FBI agents regarding their interrogation of the defendant in Chicago establishing inconsistencies and aggressive behavior, Mr. Padilla's reaction was concern that the agents could get in trouble. Instead of being pleased with his attorney's efforts to get out the truth, he was more concerned about the effect it could have upon the agents, or the possibility that these efforts on his behalf might result in his return to the brig.14

He also appeared concerned that he might be considered mentally ill. Hegarty found that, far from “malingering” or exaggerating his symptoms, Padilla actually “strives to present himself as stress and symptom free on interview and on testing.” “He is terrified of appearing or being seen as ‘crazy,'” she reported. “He recalled being told by one of his interrogators that if he were to relate a particular experience to someone ‘on the outside,' they would see him as ‘crazy.' He was completely unable to describe those experiences for me.”15

Though reluctant to describe his interrogation, Padilla had been willing to answer yes or no to a list of interrogation techniques Hegarty presented based on the leaked Bybee memo, and the psychiatrist told the court,

Mr. Padilla was willing to affirm or deny whether he had been subject to interrogation techniques that had been commonly reported in the media. He denied being sexually assaulted or humiliated. He denied being water-boarded with uncharacteristic intensity and insistence. He acknowledged being kept in the dark or with the lights on for very long periods of time, being shackled and left alone for long periods of time, of being kept in a cold environment for long periods of time, and above all, of being certain he would die in the brig.

In particular, he described periods of sleep deprivation caused by the discomfort of lying on a steel bun without a mattress and with the lights on. Also, the slamming of adjacent cell doors at regular intervals prevented his sleep. Mr. Padilla recalled asking for medication for pain and being told by staff they were not authorized to give him anything for his pain. He also described an incident during which he felt intense pressure on his chest “like two hundred pounds” and was convinced he was going to die from that intense pressure.

During my interview, Mr. Padilla briefly conveyed obviously painful recollections of being taken out of his cell to a “recreation” cage. Mr. Padilla recalled how he begged his guards not to take him out and put him in the cage. He would not say what went on in the cage or why it upset him so. Mr. Padilla also made it clear to me that he had not told me everything that had been done to him in the brig and that he was unwilling to do so.

Mr. Padilla told me that he had no way of keeping track of time while in the brig. He was the sole occupant on the lower level of the brig. There were long periods of darkness and long periods of bright artificial light. There were no clocks or calendars. He had no access of any kind to the outside world. He was unable to put events in chronological order for me. He was clear that early on, for what seemed like months, there was a “terrible time,” although he could not be more specific as to what constituted that “terrible time.”16

As a result of his experiences, Hegarty told the court, Padilla presented a textbook case of Post Traumatic Stress Disorder. She concluded,

He has endured a traumatic event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and his response involved intense fear and helplessness. The use of prolonged isolation along with tactics designed to have an individual reveal facts they otherwise might not wish to reveal, as well as the fostering of dependence on interrogators not only creates the conditions in which individuals might reveal important information, but also the conditions that induce intense fear, feelings of helplessness and loss of control characteristic of the traumatic experience. Sleep deprivation, physiological stress, and repeated questioning only exacerbate the traumatic nature of the experience. Mr. Padilla believed he was going to die on a number of occasions during his detention. He believed his family would be harmed if he did not comply. He learned that no matter whether he was cooperative, or whether he pleaded with his captors, he was utterly helpless and absolutely dependent on them for everything. He believed and still believes they have the ultimate power to decide what happens in his life, his case, and whether he is released or ultimately is returned to the brig.17

A 1985 Supreme Court decision had established that for a defendant to be considered competent to stand trial, the state only needs to show that he understands the charges against him, the penalty he faces, and the adversarial nature of the proceedings, and that he is able to assist his attorneys in his defense. Padilla's attorneys concentrated on this last factor, arguing that he was too traumatized and fearful to cooperate fully in preparing his case. During the mental competency hearings, both Hegarty and a second psychiatrist testifying on behalf of the defense, Dr. Patricia Zapf, supported this conclusion. Dr. Zapf testified that Padilla was “immobilized by anxiety” and unsure whether his attorneys might not in fact be government agents; convinced he would be returned to the brig, where he would remain until he died, he was, she reported, fatalistic about the proceedings. “He'd say, ‘What does it matter? It doesn't matter. My fate has been decided. It's better to let things be.'”18

Incredibly, in the course of the competency hearing, Assistant U.S. Attorney Stephanie K. Pell revealed that the Defense Department had not turned over all of its videotapes of Padilla's interrogations to his attorneys—and that the tape it hadn't produced was the recording of Padilla's last interrogation session on March 2, 2004, the day before he was finally allowed, after almost two years in isolation, to meet with his attorneys. “We have a good faith belief the tape existed,” Pell told Judge Cooke at the hearing in February 2007, insisting the tape had been “lost” and that “an exhaustive search was conducted” but the video “could not be located.”19

“Do you understand how it might be difficult to understand that a tape related to this particular individual just got mislaid?” Judge Cooke countered.20 But there was little she could do. When Padilla's attorneys had filed notice that they planned to introduce scenes from the 87 tapes in his defense, government attorneys argued that the tapes “contain isolated, historical sideshows, meant to divert this Court's attention away from the central issue before it, which is Padilla's present ability to understand the proceedings and communicate with his counsel.” The tapes were “completely irrelevant to Padilla's present ability to communicate with his attorneys,” the government insisted; moreover, while it was understood that the classified tapes would not be played in open court, “this Court should not even consider them in the privacy of chambers,” the government insisted.21

Finally, the government argued, defense attorneys should be barred from making any reference to the conditions the tapes depicted in their cross examination of a court-appointed Bureau of Prisons psychologist who had deemed Padilla competent to stand trial.

Perhaps anticipating that the request to use the videotape excerpts will be denied, counsel for Padilla signaled at the last hearing that they intend to put “hypothetical” questions to the court-appointed expert, based on what occurred during the videotaped interrogations at issue. More specifically, counsel for Padilla plan to ask whether the court-appointed expert's opinion would change if he knew that so-and-so had occurred, with the so-and-so being something that appears on the classified videotapes.

Doing so, U.S. attorneys concluded would violate a court order on the use of classified evidence.22

Judge Cooke had ruled for the government, rejecting Padilla's petition to play portions of the tapes. Now, confronted with the fact that the government had withheld the video of Padilla's final interrogation and with its dubious claim that the tape had disappeared, his attorneys protested again. What happened during that last session with interrogators, on the day before he was allowed to meet his attorneys “directly impacts upon his relationship with his attorneys,” his lawyers argued.23 But again, though clearly troubled by the government's claim that the tape had gone missing, Judge Cooke concluded it, too, would have been inadmissible.

She did, however, allow one window into the government's treatment of Padilla in the brig. Rudolfo Buigas, the court-appointed Bureau of Prisons psychologist, had not formally examined Padilla; because Padilla had refused to submit to another psychiatric evaluation, Buigas had interviewed him for about five hours instead, and then had spoken with Sanford Seymour, the technical director of the Charleston brig, and brig psychologist Craig Noble about his state of mind in detention. Based on these interviews, Buigas had concluded that Padilla suffered from anxiety and an unnamed personality disorder, but that he was mentally fit to stand trial. Because Buigas's assessment had depended in part on their descriptions of their encounters with Padilla, Cooke ordered Seymour and Noble to testify at the hearing—though, again, they could not discuss his treatment or the conditions of his confinement, only their observations on his mental state.

During cross-examination, Seymour acknowledged that Padilla had been held in isolation with no clock or access to natural light; he said he had twice seen Padilla weeping. Noble testified that he had interviewed Padilla twice—once for a mental health intake assessment when he arrived at the brig on June 10, 2002, and the second time two years later when he had briefly spoken with Padilla not face to face, but through the hatch in his cell door through which his meals were passed. He said Padilla's health was “unremarkable” both times. Padilla's attorneys asked whether those interviews had lasted less than two minutes, as brig records suggested, but the government objected, and he was not allowed to answer because Buigas had not questioned him about the length of their discussions.24

On February 28, 2007, Judge Cooke ruled that Padilla was competent to stand trial. She explained her decision relied in large part her own observations of Padilla. Though he had arrived in her courtroom shackled, she had ordered him unbound and he had remained unshackled throughout the pre-trial hearings without incident; moreover, she had found him “keenly aware” of the court proceedings and said he “clearly has the capacity to assist his attorneys”25 She also noted that Padilla had signed an affidavit swearing to the descriptions of his treatment in the brig that his attorneys had presented, something they could not ethically have asked him to do were he incompetent. Newsweek reported that after her ruling, “Padilla, who has sat largely emotionless through the past few days of testimony about his mental competency, stood up and smiled, making a point of shaking the hands of each one of his defense attorneys.”26

Judge Cooke made clear that her decision that Padilla could stand trial on the charges before her should not be considered as a rejection of his claims of abuse during his detention in the brig. “Those claims are for another day,” she said, suggesting they would be reviewed in the course of his motion to dismiss based on “outrageous government conduct.” But like the incompetence claim, the “outrageous government conduct” motion was a legal longshot; the doctrine has been applied almost exclusively in cases of entrapment, where the government participates in or facilitates the crime for which the defendant is eventually charged. In April, Judge Cooke issued an order denying Padilla's Motion to Dismiss, finding his argument had “numerous legal infirmities” because his treatment in the brig was not connected to the present charges that prior to 9/11 he had conspired to support terrorism overseas.

First, the fact that the governmental conduct occurred at a time and place removed from the crimes charged makes the remedy Padilla is seeking considerably more attenuated and arbitrary. Short of resorting to a ‘two wrongs make a right' judicial process, it is difficult for this Court to ascertain how the remedy sought emanates from the infirmity defendant describes. This is considerably distinguishable from a government entrapment scenario, where the crime that the defendant is charged with is the crux of the outrageous government conduct claim.

Second, the outrageous conduct occurred while Padilla was under military control at the Naval Brig in Charleston , South Carolina . At this time, Padilla was being held under Presidential orders in connection with his enemy combatant status and had not been charged with the crimes he is currently facing. This further attenuates Padilla's outrageous government conduct claim. Even if Padilla's due process rights were violated while being held at the Naval Brig as an enemy combatant, he fails to explain how this violation should result in the dismissal of distinct crimes that he was not charged with at that point.

Matthew Alexander 04/08/10: If this is the case, why were no UCMJ charges ever filed against the commander of the brig? Or other commanders who participated in his detention and/or ordered the policies? The Uniformed Code of Military Justice was completely ignored for more than seven years and is now a defunct criminal justice system plagued by the failure of military investigative commanders to open criminal cases in light of obvious evidence of criminal wrongdoing.

Third, Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate.27

She concluded:

The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.28

In a footnote, however, Judge Cooke again noted that her order to deny Padilla's motion shouldn't be read as denying his assertions of abuse at the hands of the U.S. government. “This Court makes no finding with regard to Mr. Padilla's treatment at the Naval Brig. By stating that Mr. Padilla has failed to state a claim of ‘outrageous government conduct,' the Court is merely rejecting the merits of Mr. Padilla's legal argument. Within the framework of this Order, the phrase ‘outrageous government conduct' should be interpreted as a legal term of art and not defined in a conventional sense,” she wrote. 29 In another footnote, she added, “This court's holding does not imply that this is Mr. Padilla's only remedy with regard to any alleged mistreatment at the Naval Brig, only that it is the most appropriate remedy within the framework of this prosecution. Mr. Padilla is free to institute a Bivens action, an action for monetary damages or any other form of redress that he is legally entitled to pursue.”30

The trial of Jose Padilla, Adham Hassoun, and Kifah Jayyousi opened on May 14, 2007. The most serious charge against them was once again conspiracy to commit murder: in January, the 11 th Circuit Court of Appeals had reversed Judge Cooke and reinstated Count 1 of the indictment. In late June, in a show of unity that observers believed augured ill for the defense, 11 of the 12 jurors came to court dressed entirely in black; on July 3, the entire jury sat through the proceedings dressed in coordinated rows of red, white, and blue. They heard almost nothing about Padilla's time in the brig during the three-month trial; indeed, days would go by with little mention of him at all. But in closing arguments, Assistant US Attorney Brian Frazier directed the jury's attention to Padilla, Hassoun and Jayyousi's “star recruit.” The main piece of evidence against him was the “mujahadeen data form” which a disguised CIA agent testified he had found in a raid in 2001 in Afghanistan and which allegedly bore seven of Padilla's fingerprints. “You don't mail away for it” Frazier told the jury. “You are already inside the al Qaeda organization when you get this form. It was one of more than 100 times he invoked al Qaeda in a closing argument that seemed calculated to evoke the administration's early characterizations of the enemy combatant Padilla. Padilla “trained to kill,” Frazier concluded.31

On August 16, 2007, after a day and a half of deliberations, the jury returned guilty verdicts on all three main counts, including conspiracy to murder, and it was generally assumed that Padilla would be condemned to life behind bars. But on January 23, 2008, Judge Cooke announced she was sentencing him to 17 years in federal prison. She cited two factors in justifying her marked departure from federal sentencing guidelines. The first reflected her continuing discomfort with the conspiracy to murder charge. Prosecutors had presented nothing linking the defendants to specific acts of terrorism, she noted: “There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere; there was never a plot to overthrow the United States government.” The second, she made clear, had to do with what she had learned about his treatment in the Charleston brig. Cooke was crediting Padilla for the three and a half years he had been held incommunicado and deprived of a mattress, clock, the Koran, or human contact, she explained. “I do find the conditions were so harsh for Mr. Padilla that they warrant consideration of the court's fashioning of a sentence in this case.”32

On January 4, 2008, Padilla's attorneys filed a lawsuit against John Yoo, the author of the so-called Bybee memos, alleging that “During his time in the military brig, Mr. Padilla was intentionally subjected to a systematic program of illegal interrogation and conditions of confinement that Defendant Yoo justified through legal opinions purporting to permit illegal conduct.”33 The Complaint alleges:

Plaintiff Jose Padilla is a United States citizen who was imprisoned as an “enemy combatant” in a military brig, without charge and without ability to defend himself or challenge his conditions of confinement for three years and eight months. Throughout those years, Mr. Padilla suffered gross physical and psychological abuse at the hands of federal officials as part of a systematic program of abusive interrogation intended to break down Mr. Padilla's humanity and his will to live. For nearly two years, Mr. Padilla was held in complete isolation and denied all access to the court system, legal counsel and his family. He was subjected to mistreatment including but not limited to extreme and prolonged sleep and sensory deprivation designed to inflict severe mental pain and suffering; exposure to extreme temperatures; interrogation under threat of torture, deportation and even death; denial of access to necessary medical and psychiatric care; and interference with his ability to practice his religion. In the year and a half that Mr. Padilla remained in the Brig after he was granted limited access to legal counsel, much of this severe abuse continued….

The grave violations suffered by Padilla were not isolated occurrences by rogue lower-level officials; to the contrary, Defendant John Yoo, along with other senior officials, deliberately removed Mr. Padilla from due process protections traditionally available to U.S. citizens detained by their government and barred all access to the outside world, including to counsel. On information and belief, Defendant Yoo and other senior officials then personally formulated and/or approved and/or failed to act upon actual or constructive knowledge of, a systematic program of illegal detention and interrogation, which was specifically designed to inflict, and did inflict, severe physical and mental pain and suffering on Mr. Padilla for the purpose of extracting information from him and/or punishing him without due process of law…. Defendant Yoo personally provided numerous legal memoranda that purported to provide to senior government officials a legal basis to implement an extreme and unprecedented interrogation and detention program—even though such tactics are unprecedented in U.S. history and clearly contrary to the U.S. Constitution and the law of war.34

Padilla's lawsuit, which seeks a judgment declaring that abuses described in the complaint “are unlawful and violate the Constitution of the United States” and one dollar in compensatory damages, is what Judge Cooke referred to as a Bivens action, named for a Supreme Court case in which Webster Bivens successfully sued six unnamed DEA agents who had arrested him without a warrant. Yoo's attorneys moved to dismiss the case, arguing the president had the authority to authorize Padilla's detention as an enemy combatant and his interrogation, and that Yoo is entitled to immunity for his role in drafting the memos. But on June 12, 2009, U.S. District Judge Jeffrey S. White—a George W. Bush appointee—rejected those arguments and ruled that Padilla's suit can go forward.

This may well be Padilla's last opportunity to submit his treatment at the hands of the Bush administration to legal scrutiny. By transferring him from the brig to civilian custody, the administration was hoping to avoid a Supreme Court showdown over Padilla's habeas corpus petition, a showdown it knew from the Hamdi decision it was likely to lose. Yet it remained afraid that the court would take the case anyway, as a way of reviewing Judge Luttig's 4 th Circuit opinion “that the President possesses the authority under the Authorization of the Use of Military Force to detain enemy combatants who have taken up arms against the United States abroad and entered into this country for the purposes of attacking America and its citizens from within.”

But on April 3, 2006, by a 6-3 vote, the Supreme Court denied Padilla's request for review of the 4 th Circuit decision, with Justices Roberts, Stevens, Kennedy, Scalia, Thomas, and Alito holding that Padilla's petition was moot now that he was in civilian custody. Justices Ginsburg, Souter, and Breyer disagreed, with Justice Ginsberg writing in dissent,

This case, here for the second time, raises a question “of profound importance to the Nation,” Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an “enemy combatant”? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended. A party's voluntary cessation does not make a case less capable of repetition or less evasive of review.35

Even some members of the majority seemed uneasy with leaving Padilla's fate so completely in the president's hands. In an opinion co-signed by Roberts and Stevens, Justice Kennedy cautioned:

In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises….Were the Government to seek to change the status or conditions of Padilla's custody…the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised. Padilla, moreover, retains the option of seeking a writ of habeas corpus.36

But the jurist who was most outraged by the Padilla saga was Judge Michael Luttig, whose opinion, in the end, escaped Supreme Court review. When the administration asked Luttig to authorize Padilla's transfer to civilian custody, it had also asked him to withdraw his opinion, fearing that Supreme Court would hear the case even though Padilla was now to be tried in a civilian court. It was a reasonable fear: Justice Stevens, who sided with the 6-3 majority declining to hear the appeal, had previously insisted that what was “at stake in this case is nothing less than a free society.” But it was not, to Luttig, a reasonable request. In his opinion denying the request for authorization to transfer, Luttig wrote:

[T]he government's actions since this court's decision issued on September 9, culminating in and including its urging that our opinion be withdrawn, together with the timing of these actions in relation both to the period for which Padilla has already been held and to the government's scheduled response to Padilla's certiorari petition in the Supreme court, have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court…

[W]e would regard the intentional mooting by the government of a case of this import out of concern for the Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation – litigation imbued with significant public interest – in such a way as to select by which forum as between the supreme Court of the United States and an inferior appellate court it wishes to be bound.37

Luttig summarized the administration's actions in the Padilla case this way:

The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued on the government's representation that Padilla's military custody was indeed necessary in the interest of national security, the government determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement authorities and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla. The indictment of Padilla in Florida, unsealed the same day as the announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities in continued prosecution of al Qaeda's war of terrorism against the United States.

The announcement of indictment came only two business days before the government's brief in response to Padilla's petition for certiorari was due to be filed in the Supreme Court of the United States, and only days before the District Court in South Carolina, pursuant to our remand, was to accept briefing on the question whether Padilla had been properly designated an enemy combatant by the President.

The same day as Padilla's indictment was unsealed in Florida, the government filed with us a motion pursuant to Supreme Court Rule 36 for authorization to transfer Padilla to Florida, a motion that included no reference to, or explanation of, the difference in the facts asserted to justify Padilla's military detention and those for which Padilla was indicted. In a plea that was notable given that the government had held Padilla militarily for three and a half years and that the Supreme Court was expected within only days either to deny certiorari or to assume jurisdiction over the case for eventual disposition on the merits, the government urged that we act as expeditiously as possible to authorize the transfer. The government styled its motion as an “emergency application,” but it provided no explanation as to what comprised the asserted exigency.38

In a stinging conclusion, Luttig warned that such actions will inevitably have consequences “not only for the public perception of the war on terror but also for the government's credibility before the courts in litigation ancillary to that war”—and that “we cannot help but believe that those consequences have been underestimated”:

For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake – an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror – an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.39
  1. 1. Memorandum available at
  2. 2. Hamdi v. Rumsfeld, 542 U.S. 507, available at )
  3. 3. Judge Luttig Opinion, Padilla v. Hanft , No. 05-6396 (4 th Cir. Sept. 9, 2005), available at
  4. 4. Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla, November 22, 2005, available at
  5. 5. Superceding Indictment at 5, United States v. Padilla , No. 04-60001 (S.D. Fla. Nov. 17, 2005), available at Adham Amin Hassoun and Mohamed Hesham Youssef had been indicted a year before on similar charges. Hassoun, who was arrested the same month as Padilla, in June 2002, was originally charged with illegal possession of a firearm. (see
  6. 6.
  7. 7.
  8. 8. Deborah Sontag, “Video Is a Window Into a Terror Suspect's Isolation,” The New York Times , December 4, 2006, available at
  9. 9.
  10. 10. “Video Shows Treatment of Terrorism Suspect Padilla,” NPR, December 4, 2006, transcript available at
  11. 11. Declaration of Andrew G. Patel at ¶5, United States v. Padilla , No. 04-60001 (N.D. Fla. Dec. 1, 2006), available at
  12. 12. Patel Affidavit, ¶27
  13. 13. Patel Affidavit ¶¶30, 31
  14. 14. Affidavit of Angela Hegarty at ¶17, United States v. Padilla , No. 04-60001 (N.D. Fla. Dec. 1, 2006), available at
  15. 15. Hegarty Affidavit, ¶15
  16. 16. Hegarty Affidavit, ¶¶4-7
  17. 17. Hegarty Affidavit, ¶ 11
  18. 18. Deborah Sontag, “Defense Calls Padilla Incompetent For Trials, The New York Times , February 23, 2007, available at
  19. 19. Phil Hirschkorn, “The Case of the Missing Padilla Tape,” CBS News Blogs, February 24, 2007, available at, and Michael Isikoff and Mark Hosenball, “Terror Watch: The Missing Padilla Video,” Newsweek , February 28, 2007, available at
  20. 20. Curt Anderson, “Tape of Padilla Interrogation is Missing,” AP, March 9, 2007, available at
  21. 21. Gov't's Response to Def. Padilla's CIPA § 5 Notice of Intent to Use Classified Material at 1-2, United States vs. Hassoun, No. 004-60001 (N.D. Fla, Feb 20, 2007), available at
  22. 22. Response, 4
  23. 23. “Prosecutors Can't Find Tape of Padilla's Final Interrogation in Navy Brig,” Associated Press, March 9, 2007, available at,2933,258075,00.html?sPage=fnc/us/lawcenter
  24. 24. Carol J. Williams, Aspects of Padilla's Treatment Confirmed,” Los Angeles Times , February 28, 2007, available at [from first part]
  25. 25.
  26. 26. Michael Isikoff and Mark Hosenball, “Terror Watch: The Missing Padilla Video”
  27. 27. Order Denying Def. Padilla's Motion to Dismiss at 8-10, United States v. Padilla, et al, No. 04-60001 (S.D. Fla. Apr. 9, 2007), available at
  28. 28. Order at 11
  29. 29. Order at 11
  30. 30. Order at 10
  31. 31. Abby Goodnough, “Prosecutors Turn to Padilla for Closing Arguments,” The New York Times , August 14, 2007, available at
  32. 32. see, e.g., Kirk Semple, “Padilla Gets 17 Years in Conspiracy Case,” The New York Times , January 23, 2008, available at, and Warren Richey, “In Padilla Case, No Life Sentence, The Christian Science Monitor , January 23, 2008, available at
  33. 33. Complaint at ¶20, Padilla v. Yoo , No. 08-0035 (N.D. Cal. Jan. 4, 2008), available at
  34. 34. Padilla v. Yoo Complaint at ¶¶ 1,3
  35. 35. Ginsburg Dissent, Padilla v. Hanft , 547 U.S. 1062, 1651 (2006), available at
  36. 36. Kennedy Opinion, Padilla v. Hanft , 547 U.S. 1062, 1651 (2006), available at
  37. 37. Luttig Opinion at 4-5, available at
  38. 38. Luttig opinion at 2-3
  39. 39. Luttig opinion, 8-9


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