Category Archives: Padilla

David Markus has put up his summary of the key allegations in Padilla's claim of torture at Southern District of Florida Blog: Update on Padilla motion to dismiss for outrageous government conduct.

I urge you to read it. In addition to isolation and sensory deprivation, it alleges a great deal of brutality. If only parts of it are true, I think this makes out a claim of cruel and unusual confinement; if more of it is true, it's torture. Here's a sample,

In an effort to gain Mr. Padilla’s “dependency and trust,” he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers – Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same. He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell – nine feet by seven feet – had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity. Mr. Padilla’s captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk.

…

Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds.

It's an allegation; the source is something of a thug. I deeply want this not to be true. But I regret that I can't summon up the same degree of skepticism I do for wild allegations by others.

The motion asks for the charges to be dismissed in light of what it calls nearly three years and eight months of torture. Unfortunately, I don't know enough criminal law to know if this relief even lies within the court's power. Further, and supposing it does not, I'm unclear on this court's authority (as opposed to one hearing a civil claim for damages) to look into the history of past abuse except as they may be relevant to evidentiary claims or claims of ill-motivated prosecution. Any crim law mavens in the audience?

The New Times, our local alternative weekly seems maybe to be picking itself off the floor after a very very bad year. The current issue has a very interesting article on the Padilla case, including information new to me about Padilla’s arrest:

U.S. marshals obtained a warrant to detain Padilla as a witness for a grand-jury investigation.

Until recently, few details were known about Padilla’s 2002 encounter with federal agents at Chicago’s O’Hare International Airport. This past September 5, however, U.S. Magistrate Judge Stephen T. Brown offered a partial view of sealed reports and public testimony from U.S. Customs and the FBI. The details of those documents are being reported here for the first time.

After Padilla stepped off the plane from Zurich, he was escorted by a U.S. Customs agent to a 20-by-40-foot interrogation room. There he met with Customs Agent Andy Ferreri. The federal official questioned Padilla about why he declared having $8000 in cash when, in fact, he carried a little more than $10,000. Padilla, who had not been arrested and was not restrained, replied that he didn’t think it was a “big deal.”

FBI officials from New York soon arrived. There were eight agents altogether. After Ferreri left, four of them spoke with Padilla. The other four stood guard outside. Padilla was remarkably forthcoming with the FBI, according to Judge Brown’s summary of the sealed reports: “[Padilla] stated that he had been living in Egypt and then voluntarily discussed his early life and relationships and his incarceration, during which time he began his Islamic studies. He then discussed traveling to Pakistan and Egypt to continue his studies. Agent [Russell] Fincher asked the defendant how he was able to afford to do that, and the defendant replied that he was funded by a mosque in Florida and also mentioned several other individuals who helped him make arrangements to go to Egypt. Defendant also discussed his tutor in Islam studies, his pilgrimage to Mecca, and persons who assisted him.”

Padilla told FBI officials he wanted to call his mother in Florida, because “he had been ‘clean’ for many years and did not want his mother to perceive that he was in any kind of trouble.” FBI agents pressed Padilla for details: Why do you need to call her? Padilla then dropped the request.

Agent Fincher then became — to use the FBI man’s word from his report — “confrontational.” He told Padilla what he believed had occurred in the Middle East: “that [Padilla] had been in Afghanistan, where he had engaged in training and met high-ranking al-Qaeda officials; that those officials sent [Padilla] back to Pakistan, where he was with other associates; that he had left Pakistan en route for somewhere for an act of terrorism; that [Padilla] had been delayed and traveled with another individual who was a foreign national with a false passport and was detained with that person in Karachi; and that [Padilla] then traveled from Zurich to Egypt and back and then to Chicago, where he intended to commit or conduct surveillance for a terrorist act.”

The money, Fincher told Padilla, was intended to fund terrorism in the United States.

Padilla stood up. “The interview is over,” he said. “It’s time for me to go.”

Fincher, who described Padilla’s demeanor as “a bit confident” and “haughty,” said he hoped Padilla would testify voluntarily before a grand jury in New York. The Puerto Rican-American then “asked questions about representation.”

At that point, Fincher read Miranda rights and arrested Padilla on the warrant. Officials brought Padilla to New York.

One month later, on June 9, 2002, President George W. Bush declared Padilla an enemy combatant. “Padilla represents a continuing, present, and grave danger to the national security of the United States,” Bush wrote.

The president used Mobbs’s report as the basis for this conclusion. But, as is indicated in court filings, Mobbs left out a striking detail in his report to the president: The government’s two al-Qaeda sources told officials that Padilla was not interested in martyrdom. He had said he refused to die for his faith.

Padilla spent the next three and a half years incarcerated, without access to an attorney, at a military brig in Charleston, South Carolina.

Overall, the thrust of the article is that Padilla is more a “punk” than a terrorist, even though he seems to have travelled around with someone who sounds more like the real deal. The article concludes with some good quotes from my colleague Steve Vladeck. Well worth a read.

With the headline Jose Padilla on the offensive, the Southern District of Florida Blog gives us just a tease:

The Federal Defender’s Office has filed a number of motions on Jose Padilla’s behalf, including a motion to dismiss for pre-indictment delay, a motion to dismiss for a violation of Padilla’s speedy trial rights, and a motion to dismiss for outrageous government conduct. The motions have some extreme allegations, including saying the Padilla was tortured for three years while held in complete isolation. More to come after I’ve read them all.

Ok David, you’ve got my attention.

See the Miami Herald Judge throws out terror charge in Padilla case, and The Order (pdf).

As usual, SDFL Blog has the juicy details:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. …

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal — and quickly. Count I — conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) — is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties … An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. …

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I’m sure, be appealed.

And there’s lots more good stuff where that came from.

This is a big win for Padilla and his legal team, and a very gutsy decision by Judge Cooke. But from what I know of the case — it looks like she did the right thing. And the government’s case still looks weak, although the very weakest elements are gradually being pared off…

Back when the feds finally got around to actually indicting Jose Padilla, I suggested that the indictment was curiously light on actual allegations of illegal actions by Padilla himself as opposed to his supposed co-conspirators.

Well, it seems that the judge agrees:

Judge orders more investigative details turned over to Padilla defense: South Florida Sun-Sentinel A federal judge ordered prosecutors Tuesday to provide more specific accusations against alleged al-Qaida operative Jose Padilla and two other men charged with supporting terrorism overseas.

U.S. District Judge Marcia Cooke called the government’s 2005 indictment of Padilla, a former Broward County resident, Adham Amin Hassoun, and Kifah Wael Jayyousi “light on facts” and said defense lawyers would need more details to sift through a large amount of evidence related to the case.

I should also point out that this straight-shooting approach to the rules of criminal procedure appears to validate SD FLA Blog’s David Markus’s take on Judge Cooke.