Revolution #100, September 9, 2007
Jose Padilla Convicted—
The Expanding U.S. Machinery of Repression: “Thought Crimes,” Preventive Detention, and Torture
On August 16, a federal court in Miami convicted Jose Padilla on the charge of “conspiracy to murder, kidnap, and maim persons in a foreign country” and two other charges. Padilla, along with two co-defendants, faces life in jail.
The treatment of Jose Padilla as an “enemy combatant,” along with his just-completed trial, was a process of “first the verdict, then the sentence and then trial.” This whole thing both concentrates and is a spearhead in overturning long-established legal principles in the U.S.—principles which should apply to citizen and non-citizen alike. And further exposure of the outrageous legal precedents will be covered in future issues; in this article, we focus on Padilla himself.
Over five years ago, in May 2002, Jose Padilla was seized by federal agents at Chicago's O'Hare Airport as a "material witness" and held in secret. A month later, then-Attorney General John Ashcroft publicly accused Padilla—a U.S. citizen—of being "an al-Qaeda operative" who "was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States." George W. Bush declared that Padilla was an "enemy combatant" and stripped him of all rights, saying, "This guy Padilla's a bad guy." The mainstream media repeated all this in screaming headlines.
Padilla was thrown into a naval brig in Charleston, South Carolina, where he was locked up in isolation for the next 3 ½ years—not charged with any crime and not allowed to see any lawyer, family members, or anyone else except his interrogators.
In November 2005, faced with the possibility that Padilla’s challenge of his detention might get to the U.S. Supreme Court, the Bush regime announced that Padilla would be put on trial on criminal charges. Padilla was indicted on conspiracy charges that had nothing to do with the original accusations against Padilla that Bush & Co. used to justify throwing him into isolation in a military prison. They did not charge him with planning to explode a "dirty bomb." They did not charge him with being a member of al-Qaeda.
After the August 16 guilty verdict, a Bush spokesman said, “Jose Padilla received a fair trial and a just verdict.” The New York Times criticized Bush for holding Padilla without charges but then said that the administration “was forced…at the very end, to provide him with the rights guaranteed by the Constitution.”
Look at what these ruling class voices are calling a “fair trial” and “rights guaranteed by the Constitution”: For 48 months, the Bush regime abused and tortured Padilla—and drove him insane. A psychiatrist who examined Padilla last year said, “What happened at the brig was essentially the destruction of a human being’s mind.” (Democracy Now, 8/16/07) Then they put this brain-damaged man on trial. Now, the U.S. government—through the official “justice” system—is about to lock this man up for life.
The torture of Padilla is criminal. And the wider implications are far-reaching and very dangerous for the people. A look into this whole case shows how far the rulers of this country have already moved in expanding their repressive powers against whoever they deem to be a threat—and how quickly they are moving to further gear up their machinery of suppression.
Using Conspiracy Law to Go After “Thought Crimes”
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Jose Padilla, now 36 years old, was born in Brooklyn and later moved to Chicago. While serving a prison sentence, he converted to Islam. The government alleges that Padilla and the two co-defendants (Adham Hassoun and Kifah Jayyousi), whom he had met in a mosque in Florida, had conspired to commit murder in Bosnia, Kosovo, and Chechnya.
Andrew Patel, Padilla’s lawyer, said after the guilty verdict, “What happened in this trial, I think you have to put it in the context of federal conspiracy law, where the government doesn’t have to prove that something happened, but just that people agree that something should happen in the future. In this case, it was even more strained. The crime charged in this case was actually an agreement to agree to do something in the future. So when you’re dealing with a charge like that, you’re not going to have—or the government’s not going to be required to produce the kind of evidence that you would expect in a normal criminal case.” (Democracy Now, 8/17/07)
The government prosecutors claimed to have two main pieces of “evidence” against Padilla: wiretapped phone conversations and an “application form” to join al-Qaeda that the government alleges was filled out by Padilla.
The government revealed that it had collected 300,000 wiretapped phone conversations related to this case over 10 years—all with warrants. The “Protect America Act” recently passed by Congress and signed by Bush greatly expanded the government’s warrantless wiretapping program—but the Padilla case points to the fact that the government carries out vast amounts of court-approved eavesdropping on communications in the U.S. (see “In the Name of ‘Protect America’: A Big Step Towards POLICE STATE America,” online at revcom.us).
Of the 300,000 wiretaps, the government declared 14,000 to be “pertinent” to the case. The prosecutors introduced 130 conversations (or parts of conversations) as evidence at the trial. Of these, Padilla’s voice is heard on only seven—and in none of those does Padilla discuss anything to do with what the government charged him with. The prosecutors claimed that the defendants were talking in coded language. Jurors interviewed by the Miami Herald after the trial said that what particularly influenced their decision to convict Padilla of conspiracy was a 1997 phone conversation in which Padilla is heard talking to co-defendant Hassoun about going “over there.” Hassoun asks, “You’re ready, right?” Padilla replies, “God willing, brother. It’s going to happen soon.”
But, in fact, there was nothing that “happened soon.” Over a year after that intercepted phone call, Padilla moved to Egypt where, he says, he continued his Islamic studies. While there he divorced his American wife, married an Egyptian woman, and fathered two children. Padilla later went to Saudi Arabia, Yemen, and Pakistan. The third defendant, Jayyousi, a Jordanian-born U.S. citizen, said he never met Padilla, and none of the wiretap tapes introduced by the government have him in a conversation with Padilla. Still, the jurors said the wiretapped 1997 conversation led them to conclude that Padilla was involved in a conspiracy.
The second main piece of “evidence” was a document that the government said was an application to join al-Qaeda filled out by Jose Padilla in 2000, supposedly found at an al-Qaeda safe house in Afghanistan. The government claims that Padilla went to an al-Qaeda camp in Afghanistan during his travels abroad—but, according to the Miami Herald, “prosecutors presented no direct evidence that placed Padilla at the military-style camp in Afghanistan.”
The document does have a birthdate that matches Padilla’s, and it indicates that the applicant is a Spanish speaker (which Padilla is). And Padilla’s fingerprints are allegedly on the form. But Padilla’s name is not on it. And attorney Andrew Patel points out that there are two or three different kinds of ink used on the form, the handwriting is different on the front and back pages, and dates are written in American style on one page and in the European style on another.
But even if the government’s claim that Padilla had filled out this “application form” were true, it’s not evidence for the conspiracy that Padilla was charged with. Robert Chesney, a Wake Forest University law professor, told the NY Times: “It’s a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap.”
Various legal scholars point to a chilling implication of Padilla’s conviction under the federal conspiracy law. Scott Horton, an adjunct professor of law at Columbia University, wrote in a Harper’s magazine blog: “As the Bush Administration is conceptualizing and implementing this law, the fact that Padilla thought bad thoughts about the United States and its Government is enough to lock him up for life.” Peter Marguiles, a law professor at Roger Williams University, told the NY Times that the conspiracy charge against Padilla “is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime.”
Preventive Detention
When Jose Padilla was arrested in 2002 at O’Hare, he was held on a material witness warrant. A material witness warrant is supposedly a means to compel someone to testify in a trial or at a grand jury hearing. So this was a fraud to begin with—the government had no intention of having Padilla testify. Since 9/11, the Bush regime has used material witness warrants widely to detain people without charges.
From O’Hare, Padilla was sent to New York and assigned a defense attorney. But two days before Padilla was scheduled to appear before a federal district court judge in June 2002 on a motion to vacate the material witness warrant, Bush issued a presidential order taking Padilla out of custody of the federal marshals and transferring him to military custody.
When Padilla’s lawyer petitioned the court for a writ of habeas corpus, a Bush official named Michael Mobbs—the Special Advisor to the Under Secretary of Defense for Policy—stepped in with a declaration for the court, giving the government’s story that Padilla was planning to set off a radioactive “dirty bomb” at the behest of al-Qaeda and that this justified his detention as an “enemy combatant” and the banning of any further contact with his attorney. The government claimed they got information about Padilla and the “dirty bomb” plot from captives held by the U.S. in other countries—captives, as it has come out, who were tortured. The government said details about this information could not be revealed because they were a “state secret”—everybody had to take Bush’s word for it that Padilla was a “bad guy.” The government was openly declaring that it was carrying out preventive detention—holding Padilla not for something he might have done, but to prevent him from doing something he allegedly might do in the future.
The federal district court in New York City ruled that the president had the authority to detain U.S. citizens as “enemy combatants” and that it would only consider whether the government had “some evidence” to justify this designation in Padilla’s case. The 2nd U.S. Circuit Court of Appeals reversed the lower court, ordering that Padilla be released from military custody and tried in civilian courts. But the order was suspended when the Bush administration appealed the case to the U.S. Supreme Court.
The Supreme Court ruled in June 2004 that Padilla should have filed his appeal in the federal court in Charleston, SC, because he was being held in the military prison there. The Supreme Court ruling moved the case into the 4th Circuit, the most conservative federal court. And in September 2005, a judge in the 4th Circuit ruled that the government can continue to hold Padilla indefinitely in military detention. Padilla’s lawyers appealed the 4th Circuit Court decision. And it was when this appeal appeared headed to the Supreme Court—where the legality of stripping a U.S. citizen of all rights might be challenged—that the Bush regime moved to indict Padilla on criminal charges.
But in bringing the case into the courts, Bush was certainly not renouncing the claim that the president had the power to declare someone an “enemy combatant” and detain that person indefinitely, simply on his say so. In fact, by derailing an appeal of the 4th Circuit Court ruling, Bush was forcefully asserting his presidential power to imprison other people without trial and deny them any rights. And the Bush regime kept the option to reclassify Padilla as an “enemy combatant”—in other words, to strip him of all rights and throw him back into indefinite military detention again—if things did not go their way in court.
Justifying Torture
Through the Padilla case, the Bush regime blatantly justified its use of torture in the name of “intelligence gathering.”
The torture of Padilla may have included many things—Padilla himself has been too terrified by the experience to say anything. But the practices in the military prison that have been made public centered on extreme isolation and sensory deprivation. (See sidebar, “The Inexcusable Torture of Jose Padilla.”) In a court document submitted in 2003, Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency, put forward the Bush regime’s rationale for cutting Padilla from all contact with lawyers or anyone else. In the cold-blooded language of a professional torturer, Jacoby discussed what U.S. interrogators needed in order to carry out “robust interrogation efforts”:
“Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process… Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla…”
Stuart Grassian, an expert on effects of solitary confinement who examined Padilla for his lawyers, cut through Jacoby’s deeply hypocritical use of the word “trust”: “What the government is attempting to do is to create an atmosphere of dependency and terror.” (Christian Science Monitor, 8/14/2007)
The torture and cruel treatment against Padilla that have been admitted—let alone what else might come to light—are acts that have long been considered war crimes under both U.S. and international laws and treaties. And these are exactly the kind of torture “techniques” that the White House and the Congress legitimized and legalized last year with the Military Commissions Act. (See “The Facts About the Military Commissions Act (Torture Law),” online at revcom.us)
In pre-trial hearings, defense psychiatrists gave damning testimony that Padilla had been severely damaged by the 43 months of solitary confinement. But the government declared that he met the legal requirements of “competency” to stand trial, and the judge ruled that the trial could go ahead.
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What kind of government tortures prisoners and deliberately drives them insane? What kind of society is it where those in power carry out such horrors with impunity? And what responsibility do all people of conscience have to say NO to these horrors and demand that they be brought to a halt?
In formal legal arguments before the Supreme Court, Bush’s Deputy Solicitor General Paul Clement defended the military detention of Padilla by saying, “You have to recognize that in situations where there is a war—where the government is on a war footing—that you have to trust the executive.”
“Trust the executive”?! This is a president that lied about WMDs to justify the invasion of Iraq, lied about the vast program of illegal wiretapping, lied about torture, and on and on. Why should anyone “trust” what this government says about Padilla or anything else? To “trust” this regime means complicity with all their crimes and horrors.
The Bush regime’s actions in disappearing Jose Padilla and locking him in a military brig for years represented major breaks from and blatant violations of long-established legal principles of U.S. law—the right to speak to a lawyer when arrested, no coercive interrogations, no imprisonment without a trial where the accused could hear evidence and question witnesses, no indefinite detention without a trial, and so on. From the beginning, these principles were constrained and truncated by virtue of being part of an exploitative class system, and the history of this country is filled with the trampling of such rights—for example, the blatant discrimination and reactionary violence against Black people and other oppressed nationalities. (To take but one example, there is the case of the torture carried out by the Chicago police under the watch of Lt. Jon Burge, which has again recently been in the news.) But the setting of incarceration by presidential decree as the “new normalcy” has been a major leap in a fascist direction.
Through this trial, the government went to great lengths to convict Jose Padilla and the other two defendants to retroactively justify those gross violations. Now, with the Padilla verdict, various legal experts are sounding the alarm about “thought crimes”—the criminalization of “bad thoughts” against the rulers and their state. And the Padilla case has to be seen in the context of the quickening pace of repressive steps: broadening of warrantless wiretapping, legalization of torture, the official and unofficial fascist offensive against immigrants, the surveillance and detention of protesters (see, for instance, the recent revelations about illegal police spying and arrests surrounding the 2004 Republican National Convention), the firing of professors for holding dissenting and critical views of U.S. policy, etc.
Consider the dangerous changes in legal norms and standards that have already come about. Look at all that this country’s rulers have done to Jose Padilla, those at the U.S. torture camp at Guantánamo, and others at secret CIA prisons around the world. Think about who else they can and will target—if they are not stopped by a massive political resistance, as part of building a revolutionary movement against this monstrous system.
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