New Military Documents Reveal Unlawful Guantánamo Procedures Were Also Applied On American Soil

According to newly released military documents, the Navy applied lawless Guantánamo protocols in detention facilities on American soil. The documents, which include regular emails between brig officers and others in the chain of command, uncover new details of the detention and interrogation of two U.S. citizens and a legal resident – Yaser Hamdi, Jose Padilla and Ali al-Marri – at naval brigs in Virginia and South Carolina.

The documents were obtained under the Freedom of Information Act by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the American Civil Liberties Union.

According to the documents, Navy officers doubted the wisdom of applying Guantánamo rules on American soil. In particular, officers expressed grave concern over the effects of the solitary confinement imposed upon the three men detained at the brigs, a practice that was considered to be even more extreme than the isolation imposed at Guantánamo. Navy officers also exhibited frustration with the Defense Department’s unwillingness to provide the detainees with access to legal counsel or any information about their fates. The documents clearly show that the standard operating procedure developed for Guantánamo Bay governed every aspect of detentions at the two bases inside the United States. Though Navy personnel tried several times to improve the harsh conditions under which Hamdi, Padilla and al-Marri were detained, senior Defense Department officials repeatedly denied the requests.

The press release

The newly released documents

The Guantánamo Standard Operating Procedure

Update: Yes, Cnn.com confirms the verdict.

From what I read of the trial, I did not think the evidence was sufficient to convict him, but these judgments are better left to commentators who were actually present in the courtroom.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here’s a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees’ legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants’ rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values - the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I’m prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there’s some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government’s conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I’m always a bit nervous posting about cases based only on news reports. If there’s something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Meanwhile, the government has put on Dr. Rohan Gunaratna, its most effective expert witness on terrorism — and apparently the Judge has allowed him to avoid testifying about some of his sources and methods, which is slightly odd. He’s also been admonished giving an interview during the trial. Which is not Dr. Gunaratna’s first experience of official criticism: in 2003 the CIA criticized his accuracy.

Mr. Koch will have to deal with things like unwritten rules barring the press from asking questions — even when court is not in session! (Just to be clear - this rule barring questions near the courtroom might well be reasonable under the circumstances, in order to protect the jury from overhearing something. But it would, I think, need to be formally ordered by the judge in writing or orally in open court, in order to be valid.)

Another good source for links to information is of course the judicious Southern District of Florida blog. Personally, I’m not going to try to blog every twist and turn, just the most interesting bits: I have exams to grade.

In short, nothing substantive has changed much since I wrote about the strange lightness of the indictment back in November 2005 (!).

[Index of my Padilla-related posts.]

Judge Cooke did something interesting last night: she avoided the need for an evidentiary hearing on Padilla’s claims that he’d been tortured by the Navy by taking them as true for the purposes of deciding this motion. Even taking those factual claims as true, however, the Judge denied the motion. Of the reasons given, the third strikes me as the strongest and most interesting:

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. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. …

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. 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.

As this decision comes after a ruling that Padilla is competent to stand trial, the argument that something about the (alleged) torture makes him unable to participate properly in his own defense is already off the table.

In summary, as I understand it, the Judge isn’t exactly saying whether the government’s conduct here was or was not outrageous, but rather that even assuming the truth of the allegations that it was, the only relief to which Padilla is entitled in his criminal defense is exclusion (or, amazingly, a hearing on exclusion!) of any evidence gathered while he was being held and tortured. (Claims for, say, monetary relief for illegal detention would be an entirely separate civil proceeding.)

… the Supreme Court’s expansion of the concept of due process … now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, [FN4] which guarantees “the right of the people to be secure in their persons … against unreasonable … seizures,” the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

…we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud.

How one applies this language to Padilla is no easy question, since he was arrested in the US, not forcibly dragged here from abroad. It is possible to read the case the way the Judge did, but I think it’s also possible read it to allow a greater remedy. The question is exactly whether “suppression of evidence will … suffice,” or whether this is a case in which more is required to vindicate “the underlying principle that the government should be denied the right to exploit its own illegal conduct.”

The issue is now clearly presented for the inevitable appeal.

Terror Watch: The Missing Padilla Video: … what happened to a crucial video recording of Padilla being interrogated in a U.S. military brig that has mysteriously disappeared?

The missing DVD dates from March 2, 2004. It contains a video of the last interrogation session of Padilla, then a declared “enemy combatant” under an order from President Bush, while he was being held in military custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in the course of an unusual court hearing about Padilla’s mental condition, a government lawyer disclosed to a surprised courtroom that the Defense Intelligence Agency—which had custody of the evidence—was no longer able to locate the DVD. As a result, it was not included in a packet of classified DVDs that was recently turned over to defense lawyers under orders from Judge Cooke.

The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government’s highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. “This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi,” said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government’s treatment of Padilla. “It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused.”

“This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi,” is harsh, but probably deserved.