The Bush administration’s
May, 2002 lawless
detention of U.S. citizen Jose Padilla – on U.S. soil –
was, as I recounted in my book, the first incident which really
prompted me to begin concluding that things were going terribly
awry in our country. The administration declared Padilla an “enemy
combatant,” put him in a military prison, and refused to charge
him with any crime or even allow him access to a lawyer or anyone
else. He stayed in a black hole, kept by his own government, for
the next three-a-half-years with no charges of any kind
ever asserted against him and with the administration insisting
on the right to detain him (and any other American citizen) indefinitely
– all based solely on the secret, unchallengeable say-so of
the President that he was an “enemy combatant.”
To this day,
I have trouble believing that we have a Government that claims this
power against American citizens and has exercised that power and
aggressively defended it – and even more trouble believing
that there are so many blindly loyal followers of that government
who defend that conduct. The outrage that it provokes when thinking
about it has not diminished even a small amount and does not diminish
no matter how many times one reads, writes or speaks about it. It
is as profound a betrayal of the most core American political principles
as one can fathom.
The Bush administration
finally charged Padilla with a crime (after 3 1/2 years of detention)
because the U.S. Supreme Court was set to rule on the legality
of their treatment of Padilla, and indicting Padilla enabled the
administration to argue that his case was now “moot.” The Government’s
indictment made no mention of the flamboyant allegation they originally
trumpeted to justify his lawless incarceration – that he was
a “Dirty Bomber” attempting to detonate a radiological bomb in an
American city (because the “evidence” for that accusation was itself
by torture and was therefore unreliable and unusable). Instead,
the indictment contained
only the vaguest and most generic terrorism allegations. Since then,
the federal judge presiding over Padilla’s case (in the Southern
District of Florida) has repeatedly expressed
skepticism over the Government’s case against him and has, on
several occasions, admonished them to provide more specific information
setting forth exactly what Padilla is alleged to have done.
Padilla’s lawyers filed a Motion to Dismiss the Indictment against
him on the grounds that the Government has engaged in outrageous
conduct – specifically, that they tortured him for the 3 1/2
years he remained in captivity, particularly for the almost 2 full
years that they denied him access even to a lawyer. Via
David Markus, a South Florida attorney who has been reporting
on the Padilla proceedings on his local blog, Padilla’s Motion to
here (.pdf). Markus excerpts a substantial part of the description
of Padilla’s captivity, which is the first detailed account I have
read of the treatment to which Padilla was subjected while in detention.
parts of it below (read the full excerpt at Markus’
blog or in Padilla’s
brief). It is worthwhile to note that all of the treatment described
by Padilla has been described by numerous other detainees, and from
what I can tell, all of the treatment he describes are part
of the “interrogation and detention techniques” which the President
now has the legal
authority to invoke pursuant to the so-called Military
Commissions Act of 2006 – enacted by our Congress just
ten days ago. Thus, everything Padilla describes is now perfectly
legal in the United States – even when applied against individuals
charged with no crimes of any kind.
notes, this is how the Argument section of Padilla’s brief begins:
“Whoever fights monsters should see to it that in the process he
does not become a monster. And when you look long into an abyss,
the abyss also looks into you.”Friedrich Nietzsche, Beyond Good
and Evil 89 (Walter Kaufmann trans., Vintage Books 1966) (1886).
details the treatment to which he was subjected:
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.
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
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.
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.
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. . . .
his captors would bang the walls and cell bars creating loud startling
noises. These disruptions would occur throughout the night and
cease only in the morning, when Mr. Padilla's interrogations would
begin. Efforts to manipulate Mr. Padilla and break his will also
took the form of the denial of the few benefits he possessed in
his cell. . . .
dehumanization at the hands of his captors also took more sinister
forms. 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.
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.
He was also threatened with imminent execution. He was hooded
and forced to stand in stress positions for long durations of
time. He was forced to endure exceedingly long interrogation sessions,
without adequate sleep, wherein he would be confronted with false
information, scenarios, and documents to further disorient him.
Often he had to endure multiple interrogators who would scream,
shake, and otherwise assault Mr. Padilla.
Mr. Padilla was given drugs against his will, believed to be some
form of lysergic acid diethylamide (LSD) or phencyclidine (PCP),
to act as a sort of truth serum during his interrogations.
most of the time Mr. Padilla was held captive in the Naval Brig
he had no contact with the outside world. In March 2004, one year
and eight months after arriving in the Naval Brig, Mr. Padilla
was permitted his first contact with his attorneys. Even thereafter,
although Mr. Padilla had access to counsel, and thereby some contact
with the outside world, those visits were extremely limited and
restricted. . . .
physical abuse, and other forms of inhumane treatment visited
upon Mr. Padilla caused serious medical problems that were not
adequately addressed. Apart from the psychological damage done
to Mr. Padilla, there were numerous health problems brought on
by the conditions of his captivity. Mr. Padilla frequently experienced
cardiothoracic difficulties while sleeping, or attempting to fall
asleep, including a heavy pressure on his chest and an inability
to breath or move his body.
In one incident
Mr. Padilla felt a burning sensation pulsing through his chest.
He requested medical care but was given no relief. Toward the
end of his captivity, Mr. Padilla experienced swelling and pressure
in his chest and arms. He was administered an electrocardiogram,
and given medication. . . . .
of some of the medical problems experienced by Mr. Padilla is
obvious. Being cramped in a tiny cell with little or no opportunity
for recreation and enduring stress positions and shackling for
hours caused great pain and discomfort. It is unclear, though,
whether Mr. Padilla's cardiothoracic problems were a symptom of
the stress he endured in captivity, or a side effect from one
of the drugs involuntarily induced into Mr. Padilla's system in
the Naval Brig. In either event, the strategically applied measures
suffered by Mr. Padilla at the hands of the government caused
him both physical and psychological pain and agony.
It is worth
noting that throughout his captivity, none of the restrictive
and inhumane conditions visited upon Mr. Padilla were brought
on by his behavior or by any actions on his part. There were no
incidents of Mr. Padilla violating any regulation of the Naval
Brig or taking any aggressive action towards any of his captors.
Mr. Padilla has always been peaceful and compliant with his captors.
He was, and remains to the time of this filing, docile and resigned
— a model detainee.
also wants to make clear that the deprivation described above
did abate somewhat once counsel began negotiating with the officials
of the Naval Brig for the improvements of his conditions. Toward
the end of Mr. Padilla's captivity in the Naval Brig he was provided
reading materials and some other more humane treatment. However,
despite some improvement in Mr. Padilla's living conditions, the
interrogations and torture continued even after the visits with
many of the conditions Mr. Padilla experienced were inhumane and
caused him great physical and psychological pain and anguish.
Other deprivations experienced by Mr. Padilla, taken in isolation,
are merely cruel and some, merely petty. However, it is important
to recognize that all of the deprivations and assaults recounted
above were employed in concert in a calculated manner to cause
him maximum anguish.
It is also
extremely important to note that the torturous acts visited upon
Mr. Padilla were done over the course almost the entire three
years and seven months of his captivity in the Naval Brig. For
most of one thousand three hundred and seven days, Mr. Padilla
was tortured by the United States government without cause or
justification. Mr. Padilla's treatment at the hands of the United
States government is shocking to even the most hardened conscience,
and such outrageous conduct on the part of the government divests
it of jurisdiction, under the Due Process clause of the Fifth
Amendment, to prosecute Mr. Padilla in the instant matter.
All of that was done by the Bush administration to an American citizen
detained on U.S. soil – without any charges ever being brought
against him, let alone convicted of any crime. All along, the Bush
administration insisted it had the right to abduct and detain U.S.
citizens indefinitely and deny them access to any courts or even to
any lawyers, to either contest the validity of their detention or
the legality of their treatment. That is still the Bush administration’s
position, and the Congress less than two weeks ago purported to give
the President the legal authority to do virtually all of that.
case of Jose Padilla is one of the most despicable and outright
un-American travesties the U.S. Government has perpetrated for a
long time. It is impossible
to defend that behavior, let alone engage in it, and claim with
any legitimacy that one believes in the principles that have defined
and guided this country since its founding. But there has been no
retreat from this behavior. Quite the contrary. The atrocity known
as the Military Commissions Act of 2006 is a huge leap forward to
elevating the Padilla treatment from the lawless shadows into full-fledged,
officially sanctioned and legally authorized policy of the U.S.
Government. The case of Jose Padilla is no longer a sick aberration,
but is instead a symbol of the kind of Government we have chosen
this perfectly expressed comment
from a police officer concerning this whole matter.