One beneficial step forward, to throw light on the use of torture under the previous administration, would be to declassify records on the interrogations of José Padilla.
Padilla, formerly the so-called “dirty bomb” suspect, was convicted of conspiracy and material support of terrorism in Miami federal court and was sentenced Jan. 22, 2008, to 17 years in prison. Official sources acknowledge that Padilla was subjected to what has been called “enhanced interrogation,” or torture. However, according to New York attorney Andrew G. Patel, one of the lawyers who represented Padilla, “Information about Mr. Padilla’s interrogation remains classified.”
Padilla was arrested May 8, 2002, by federal authorities in Chicago, on a material witness warrant issued by a judge in the Southern District of New York. Padilla, who was born in Brooklyn and grew up in Chicago, had a rap sheet as a juvenile gang member in Chicago but had not previously been prosecuted in New York. He converted to Islam in the 1990s and was returning from a trip to several Middle East countries when he was arrested at Chicago’s O’Hare airport.
On June 9, 2002, just before Judge Michael Mukasey was to rule on whether authorities could continue to hold Padilla as a material witness, President Bush designated Padilla an “enemy combatant” and thus not subject to processing in the civilian judicial system.
When did the torture of José Padilla begin?
On June 10, then-Attorney General John Ashcroft held an unusual press conference from overseas — during an official trip to Russia — where he announced the arrest of Padilla with much fanfare including mention of “dirty bomb” plots. The “dirty bomb” allegations, of course, were later dropped. As Keith Olbermann has pointed out on MSNBC’s Countdown, the splashy announcement of Padilla’s arrest — a month after the arrest itself — was one in a series of highly publicized moments during the “war on terror” following moments of potential embarrassment for the administration. Padilla’s designation as an enemy combatant closely followed the embarrassing bombshell of FBI agent Colleen Rowley’s June 6 congressional testimony. Rowley was the FBI whistleblower who had tried to alert superiors about flight lessons taken by Zacarias Moussaoui, later convicted in federal court in Virginia of supporting terrorism.
“As best we can tell,” Patel says, “at the time of the Ashcroft news conference, Mr. Padilla was being transferred from civil to military custody and was being transported from New York to South Carolina.” Padilla was confined in the Naval Consolidated Brig in Charleston, S.C., until early 2006, when he was transferred to federal prison in Miami after a series of conflicting judicial rulings. Memos written in 2002 by officers at the brig noted the deteriorated mental condition of another prisoner caused by isolation and lack of stimuli. John Yoo and other authors of the Bush administration “torture memos” visited the brig in 2002.
While Padilla’s case and other terrorism cases were bouncing among federal courts and military-security authorities, Sen. Orrin Hatch (R-Utah) conducted a Judiciary Committee hearing Oct. 21, 2003, on terrorism prevention laws. One of the witnesses was Chicago’s US Attorney Patrick Fitzgerald, questioned by Sen. Patrick Leahy (D-Vt.):
“Since September 11th, the administration has decided some terrorism suspects will not be given a trial in federal court but be designated enemy combatants — José Padilla, Yasser Hamdi, Ali Almari. Two of those cases, of course, originated in Illinois.
“Do you think Padilla and Almari could have been prosecuted successfully within our civilian judicial system?
FITZGERALD: “I don’t know the facts of those cases to give you an honest opinion. And to be blunt, I never like to speak about other people’s cases if I don’t have the facts.
“I can tell you obviously that I understand it’s a heavy decision the president has to make, to make a decision do we go with what is the ordinary criminal process versus a special case.”
Fitzgerald also defended the administration:
FITZGERALD: “And I recognize people are concerned that we’d like to do things in the regular judicial system. But I also recognize that the president has to look at situations sometimes where there may be very good reason to believe if the person is allowed to walk around on the street that they can kill, and there may not be ability to use information as evidence in a courtroom, and that the answer isn’t to let a citizen wander the street, through Time Square and everywhere else, because we can’t prevent them from happening.
But I can’t tell you...”
The prosecutor who had taken two of the prisoners into custody distanced himself from the cases:
LEAHY: “You had no role in the Padilla case?”
FITZGERALD: “I was on the periphery of Padilla because he had come through Chicago, went back to New York as a material witness. So he was briefly in Chicago, so I knew about him. And then he went back to New York and southern New York was looking at him. And then I learned about the decision after it was made by the president.”
On Dec. 18, 2003, a federal appeals court ruled that the government could not detain Padilla indefinitely without charges. In early 2004 the Supreme Court agreed to hear the administration’s appeal but later rejected it as having been filed in the wrong jurisdiction. Meanwhile, on Dec. 30 Attorney Gen. Ashcroft had recused himself from investigating the widely criticized leak of CIA officer Valerie Plame’s name to media, appointing Fitzgerald as special counsel to investigate the leak. The Padilla case was re-filed in South Carolina, where Padilla’s attorneys won in the district court but lost in the court of appeals. Prosecutors avoided a final showdown in the Supreme Court by indicting him in civilian court in 2005, but not on “dirty bomb” charges. After Vice President Cheney’s chief of staff, I. Lewis Libby, was indicted in the CIA leak matter in Oct. 2005, Libby’s defense team repeatedly employed the legal tactic known as “graymail,” moving to have classified government records released. Presumably the tactic was employed in the client’s interest, the declassification sought to buttress defense arguments of shared responsibility or shared blame.
It is not possible for attorneys to discuss classified material, even after a case has been closed. But with both the Lewis Libby and the José Padilla cases resolved, it would benefit the public interest to have much of the pertinent CIPA material released.
Margie Burns is a Texas native who now writes from Washington, D.C. Email margie.burns@verizon.net. See her blog at www.margieburns.com
From The Progressive Populist, September 1, 2009
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