Category Archives: Padilla

The evidence begins to mount that the US used at least psychological torture against Jose Padilla while holding him in the Navy brig for almost three years.

Padilla's allegations that he was kept in total sensory deprivation begin to seem more credible. Padilla's lawyers allege that he was kept alone in a locked room and fed through a slot to minimize human contact.

Padilla was by all accounts a docile and model inmate. What possible justification other than the desire to break Padilla by isolating him could justify the treatment depicted in this picture, published in the New York Times today:

The NYT explains the photo as follows: Padilla got to go to the dentist once — for a root canal. To prevent this from breaking his sensory deprivation, the Navy worked hard to minimize human contact:

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

I hope it is not going to be debated that if it is proved that the government did hold Padilla in sensory deprivation conditions for months, much less years, this is not only cruel and unusual, but actual government misconduct.

The effects certainly appear to have been severe,

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 filed Friday that he “lacks the capacity to assist in his own defense.”

“It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation,” Dr. Hegarty said in an affidavit for the defense.

…

Dr. Hegarty said Mr. Padilla refuses to review the video recordings of his interrogations, which have been released to his lawyers but remain classified.

He is especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day, Mr. Patel said in his affidavit.

“During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body,” Mr. Patel said. “The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel.”

Recall that Padilla is a US citizen, arrested in the USA, and at the relevant times had been charged with no crime.

Thanks again to David Markus here’s a copy of the Government’s Opposition To Defendant Padilla’s Motion To Dismiss For “Outrageous Government Conduct”.

Short version: We deny everything. And even if it’s all true the remedy is to sue us, not dismiss this case.

Pithy quote:

The government in the strongest terms denies Padilla’s allegations of torture — allegations made without support and without citing a shred of record evidence. For present purposes, however, what matters is that the law plainly does not permit the remedy he seeks: dismissal of the indictment. No further inquiry is required.

Disengenous argument warning:

Padilla’s allegations of torture have no merit whatsoever, but the more basic and insurmountable problem with his motion is a purely legal one. Padilla has not cited a single precedent “absolutely bar[ring]” a federal criminal prosecution because of alleged due process violations committed during a prior military detention. By contrast, courts have firmly and consistently held that an indictment may not be dismissed due to supposed “outrageous government conduct” arising out of the defendant’s treatment while detained. The defendant’s remedy, if any, lies in the civil process or prosecution of the offenders; he is not entitled to a free pass from his own criminal conduct. Moreover, even in the wholly distinct line of cases involving allegedly outrageous prosecutorial misconduct, a defendant still must show that the misconduct substantially prejudiced his defense, and produce up front evidence to support his claims. Padilla has not made such a showing, and his motion should be denied as a matter of law.

Well of course there are no cases involving misconduct during prior military incarceration — that was part of the misconduct! — but no judge is going to have any trouble charging the prosecution with the military’s conduct. An ever so much more so given that Padilla was held in civilian detention before being turned over to the Navy.

That said, the government has meatier arguments based on 11th Circuit precedent…but I’m not sure on a quick reading that they utterly tie the judge’s hands.

Prediction: At least some kind of hearing.

The big issue: Will there be discovery? How much?

(Links to text of Padilla’s motion, to which this is a response, here.)