Category Archives: Padilla

Where’s the Beef?

On the eve of the Padilla trial, the Washington Post has a good review of the government's case: rich on “atmospherics,” but Few Specifics Evident As Padilla Trial Nears.

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.]

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Full Text of Denial of Padilla Motion to Dismiss for Outrageous Government Conduct

I've got a copy of the full text of Judge Cooke's decision denying Padilla's motion to dismiss for outrageous government conduct.

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Judge Denies Padilla Motion to Dismiss Based on ‘Outrageous Government Conduct’

As usual SDFLA blog has the story first, Judge Cooke denies Jose Padilla's motion to dismiss for outrageous government conduct.

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.)

That said, I think that to the extent Judge Cooke is relying on her reading of Toscanino for the proposition that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct, that is neither an obviously correct reading of that decision nor an obviously correct decision on first principles either. Indeed, Toscanino is pretty opaque on the question of relief, since the facts on the alleged illegal conduct had yet to be developed, and really only stands for the proposition that a defendant alleging such conduct is entitled to a hearing to present his claim to the court. At least in my quick reading of that case, what the relief should be is left pretty wide open, especially in light of this passage:

… 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.

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Feds Say They ‘Lost’ Key Padilla Evidence

Funny how convenient this is. The government says it 'lost' a key DVD of the final interrogation of Padilla. Newsweek has the scoop:

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.

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Padilla Found Competent to Stand Trial

Judge Cooke decided today that Padilla is mentally competent to stand trial, but warned that this decision is without prejudice to any future ruling on Padilla's claims of Outrageous Government Conduct:

A federal judge decided Wednesday that alleged al-Qaida operative Jose Padilla is mentally fit to stand trial on terrorism support charges, despite his attorneys' insistence that he is unable to help them prepare a defense.

Padilla was in court when U.S. District Judge Marcia Cooke announced her decision, but he showed no reaction.

“This defendant clearly has the capacity to assist his attorneys,'' Cooke said just hours after she finished a four days of competency hearings.

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Padilla News

The government subjected Padilla to years of sensory deprivation, blocked most human contact, blackened his windows so he'd have no natural light and no idea of the passage of time (no clock, no radio), and made him sleep on a steel bed with no mattress. But they didn't mistreat him, and the fact he smiled when he saw a prison psychiatrist through a small metal opening in his door proves he's able to interact with people enough to participate in his defense. The contrary opinion by his psychiatrist is due to the fact that Padilla had to wear handcuffs during that interview due to prison rules, so there would be no way that anyone but the staff shrink could actually evaluate what he's really like.

That seems to be the essence of yesterday's testimony.

Washington Post, Padilla Was Deprived, Not Abused, Court Told:

During his 3 1/2 -year detention as an “enemy combatant,” accused al-Qaeda operative Jose Padilla was at various times deprived of a clock, windows and a Koran, and forced to sleep on a metal bed frame without a mattress, according to testimony Tuesday from an official at the Navy brig where he was held in Charleston, S.C.

The account of Sanford E. Seymour, the brig's technical director, was narrow in scope and offered only a glimpse of Padilla's incarceration, which Padilla and his attorneys have said included torture that renders him psychologically unfit to stand trial.

Limited by a court ruling to what he had discussed with a psychologist evaluating Padilla's competence for trial, Seymour's testimony was sketchy but ran contrary to some of Padilla's most serious allegations.

“I told him I knew of no physical abuse,” Seymour testified.

New York Times, Jailers Testify About Padilla’s Confinement:

As Jose Padilla dropped his head and grew still, a senior official from the naval brig in Charleston, S.C., testified on Tuesday in federal court here that he had twice observed Mr. Padilla weeping in the electronically monitored cell where the military detained him for three years and eight months.

The brig’s technical director, Sanford E. Seymour, also said that Mr. Padilla, an American citizen who was designated an enemy combatant in 2002, sometimes slept on a steel bunk without a mattress, that the windows in his 80-square-foot cell were blackened and that brig employees covered up their nametags around him.

Mr. Seymour said that Mr. Padilla, a Muslim, occasionally visited with an imam and that his Koran was taken from him periodically; that he sometimes went outside to shoot baskets or sunbathe; and that when Mr. Padilla believed he had been administered LSD, it was really a flu shot.

These scattershot revelations, elicited by Mr. Padilla’s lawyers in a hearing of sharply limited scope, did not add up to a comprehensive portrait of Mr. Padilla’s time in the brig. But they were nonetheless significant, marking the first time Mr. Padilla’s military jailers were forced to speak publicly about the conditions of his secretive confinement without charges. …

… Bureau of Prisons psychologist, Dr. Buigas, disagreed with the diagnosis of post-traumatic stress disorder. He said Dr. Zapf’s testing was invalidated by the fact that Mr. Padilla was handcuffed during the tests, a condition imposed on Dr. Zapf by prison officials.

The Times article also notes a debate over the government's attempt to introduce what it says was evidence Padilla is shamming:

Prosecutors tried to introduce into evidence what they said was an internal document from Al Qaeda that coached operatives to be obstructionist if captured, to avoid revealing information and to make a claim of torture even if no mistreatment had occurred. This document, which they referred to as the “Manchester manual” because it was found several years ago in Manchester, England, was what guided Mr. Padilla, they said.

“Don’t I have to have some evidence that Mr. Padilla was aware of this document and studied it?” Judge Cooke asked prosecutors.

In declining to admit the manual into evidence, she added that the manual would have converted the competency hearing into a debate over whether the defendant had been tortured in the brig.

For more on the “Manchester manual” see Dick Destiny's blog and a text of the Manchester manual at Cryptome.

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This Should Be Interesting

Judge Orders Padilla Jail Personnel to Testify:

Officials at the Navy brig where terrorism suspect Jose Padilla was held for 3 1/2 years as an enemy combatant were ordered Friday to testify at a hearing to determine his psychological competency, a ruling that allows the defense to press its claims that sensory deprivation and torture in confinement have rendered the alleged al-Qaeda operative unfit to stand trial.

The ruling marks one of the few times since the Sept. 11, 2001, terrorist attacks that officials responsible for the jail conditions and interrogations of terrorism suspects have been called to testify, and it is the first time in the Padilla case.

I gather the hearing is “next week” but don't know exactly when. Pity it is going to be such a busy week for me, for I'd like to go. [UPDATE: Why do I have to read the Guardian, based in London, to learn that the hearing will be on the 22nd.]

Meanwhile, Padilla's co-defendants are asking to have their trial severed from his on the grounds that the media attention given to Padilla's case will poison theirs. There's some irony there, given that at least on the face of the indictment, the tarnishment seems much more likely to work the other way around: the facts alleged against the other defendants are more damning and more detailed than the rather thin gruel served up about Padilla himself.

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