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The torture of Jose Padilla

August 24, 2007 | Page 3

NICOLE COLSON on how the Feds railroaded the so-called "dirty bomber"

AFTER more than three months of testimony, it took a federal jury just 11 hours to find so-called "dirty bomber" Jose Padilla guilty on all counts last week.

Gordon Johndroe, a spokesperson for the White House, declared that "Jose Padilla received a fair trial and a just verdict." But from beginning to end, there was nothing fair or just about the government's railroading of Padilla.

The conviction was a significant win for the Bush administration, which claims Padilla's case is one of the most prominent so far in the "war on terror." Along with two codefendants, Adham Hassoun and Kifah Jayyousi, Padilla was found guilty of conspiracy to murder, kidnap and maim people in a foreign country, as well as lesser charges of materially supporting terrorism.

In May 2002, Padilla was arrested at Chicago's O'Hare International Airport, accused of being on an al-Qaeda mission to explode a radioactive "dirty" bomb in the U.S. Then-Attorney General John Ashcroft said Padilla wanted to cause "mass death and injury."

However, as one government official admitted to Newsweek magazine at the time, the case against Padilla was "blown out of all proportion." And in fact, instead of putting Padilla on trial, the Bush administration tried to use the case as a test of the president's power to indefinitely detain a U.S. citizen as an "enemy combatant" on U.S. soil--claiming that civilian courts were incapable of handling terrorism cases.

For three-and-a-half years, Padilla was held in solitary confinement in a military brig in South Carolina, where, according to his lawyers, he was routinely subjected to psychological and physical torture.

He was held in a 9-by-7-foot cell, with no natural light and no mattress, pillow, clock or calendar, his lawyers say. For months, he was denied all reading material, including a copy of the Koran. For nearly two years, Padilla was denied all outside contact, including any letters, meetings or phone calls with lawyers or family members.

His only contact at the time was with guards and interrogators, who allegedly subjected him to forced injections, possibly of hallucinogenic drugs, as well as extreme sensory deprivation and overload--including the use of harsh lights and loud sounds and music.

Padilla's lawyers say this treatment left him so mentally and physically shattered that he was unable to assist in his own defense. According to one expert, Padilla shows a 98 percent probability of a brain injury from his time in government custody. Dr. Angela Hegarty, a forensic psychiatrist who also examined Padilla, said he now lives in an "absolute state of terror--terror alternating with numbness, largely. It was as though the interrogators were in the room with us."

As Steven Kleinman, a retired Air Force Reserve colonel and former interrogator, recently told the Christian Science Monitor, "I'm not a psychologist, but if he isn't profoundly psychologically disturbed from that experience, then he's a stronger man than me."

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IN AN editorial critical of the government's treatment of Padilla, the New York Times nevertheless said, "It is hard to disagree with the jury's guilty verdict against Jose Padilla."

But it would be a mistake to take the conviction of Padilla and his codefendants at face value. As Georgetown University law professor and civil liberties expert David Cole noted in the Nation, "[G]iven how weak the evidence was, the case could easily have come out the other way--and may not withstand appeal."

The most serious accusation against Padilla--that he was plotting to detonate a radioactive bomb inside the U.S.--never even made it to trial because Padilla's supposed "confession" came only after he had been subjected to questioning at the hands of military interrogators, without being read his rights or given access to a lawyer. That didn't stop the Bush administration from smearing him as an attempted mass murderer, however.

Padilla was charged with the other crimes only after it became clear that a challenge of his detention was headed to the U.S. Supreme Court--and the Bush administration decided to avoid a constitutional showdown that could undermine its indefinite detention of prisoners at the U.S. prison camp in Guatanánamo Bay, Cuba.

During the trial itself, Assistant U.S. Attorney Brian Frazier told the jury that Padilla was "the star recruit of a terrorist support cell" based in South Florida. But the prosecution's evidence for this was highly suspect.

Of some 300,000 wiretap intercepts collected by the FBI in the case, for example, Padilla's voice was only ever heard on seven. Additionally, the jury was asked to believe that Padilla's co-defendants spoke in code--with the words "football" and "tourism" supposedly meaning "jihad," and "eggplant" and "zucchini" being stand-ins for "weapons" and "ammunition."

Padilla himself was never heard speaking in the supposed "code." Instead, he spoke mainly about his difficulties in leaning Arabic while studying in Egypt.

Throughout, the prosecution used the September 11 attacks to prejudice the jury, even though they admit Padilla and his codefendants had no involvement. At one point, prosecutors even played a 1997 CNN interview of Osama bin Laden on a giant screen in the courtroom--though there was no evidence that Padilla had ever even seen the interview, nor that any of the defendants ever met bin Laden.

The jury was instructed to ignore the interview as evidence, but it's hard to imagine how such a tape could not have prejudiced them against Padilla. According to the New York Times, "[O]ne juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began."

According to Jayyousi's lawyer, William Swor, prosecutors tried throughout the trial to link Muslims as a whole to terrorist organizations like al-Qaeda. "Non-Muslims who made the same statements and did the same actions would not have been convicted," Swor told the Associated Press.

Even the prosecution's "smoking gun" against Padilla--a form that Padilla supposedly filled out in 2000 to attend a mujahideen training camp--was suspect. The prosecution made much of the fact that the form had six of Padilla's fingerprints on it, but defense lawyers say Padilla likely handled it during the hundreds of hours of secret interrogations he was subjected to.

Even if the form was his, Peter Margulies, a law professor at Roger Williams University, told the New York Times, "It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap." The conspiracy charge against Padilla, said Margulies, "is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime."

As the Washington Post's Andrew Cohen noted, "For the government, it's a verdict that brings a huge sigh of relief. Now the feds don't have to worry about what to do with Padilla, the once-upon-a-time 'dirty bomber.' Now they can declare victory, even though the people who have followed this case closely know that Padilla ultimately was convicted on evidence that federal authorities did not believe amounted to a crime when it was gathered back before 2001...

"For the defense, it's further proof that if you can convince an American jury that a man in the dock had anything to do with al-Qaeda, you can pretty much bank on a conviction, no matter how tenuous the evidence...If this is a grand victory in the war on terror, I do not look forward to seeing what a defeat looks like."

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