On February 22, two expert defense witnesses testified that José Padilla suffered brain injuries during the course of his detention in a US naval brig and that he is mentally unable to stand trial.

Padilla, a US citizen, was arrested at O’Hare Airport in Chicago in May 2002 and declared a “material witness” in the investigation into the September 11 terrorist attacks. In June 2002 he was designated an “enemy combatant” by the Bush administration, which claimed he was an Al Qaeda operative and had been plotting to explode a radioactive “dirty bomb” in a US city.

He was subsequently held, without charges and in defiance of fundamental democratic rights, in a South Carolina naval brig. According to a brief filed by his lawyers, he was deliberately and systematically tortured for the three-and-a-half years duration of his incarceration. (See “Citing torture, lawyers for Jose Padilla argue case should be dismissed”)

Patricia Zapf, an associate professor at the City University of New York and clinical forensic psychologist, testified that Padilla exhibited a “strong indication of cognitive impairment.” She estimated that there was a 98 percent chance that he had suffered brain injuries during his confinement.

Dr. Zapf described Padilla as “immobilized by anxiety” whenever he was questioned about his incarceration and treatment. “He said he can’t relive it, he can’t go through it again, and he can’t name names,” she said.

Angela Hegarty, a forensic neuropsychiatrist and assistant professor of clinical psychology at Columbia University, argued that Padilla did not fully understand the legal proceedings now under way, and that he is convinced that they represent yet another stage of his interrogation. For example, he has been disinclined to speak with his attorneys about his experiences in the brig because he thinks they are government agents.

“He hits a stone wall and his logic shuts down,” said Dr. Hegarty. “His overwhelming anxiety interferes with his reasoning.” He is also unable to place events in chronological order, she said.

Both witnesses reiterated the concerns of Padilla’s legal counsel that he is so terrified of being returned to the brig, where he is convinced he will die, that he will do anything to avoid it, including lie in court about the conditions of his confinement. Hegarty referred to this behavior as a form of Stockholm syndrome, in which kidnap victims and prisoners in helpless situations are psychologically inclined to defend their captors.

“When you are helpless and dependent on an all-powerful group, it takes away your anxiety when you line up with them,” she said.

Padilla fears that if he contradicts the government in court, he will be punished for it when the trial is over. He is currently being held in a Florida jailhouse.

The witnesses also confirmed that Padilla outwardly exhibits classic symptoms of post-traumatic stress disorder (PTSD), including hypervigilance, facial tics, and extreme paranoia.

According to a brief filed at the outset of the case, during his confinement Padilla was force-fed drugs such as LSD and PCP, forced into “stress positions,” systematically deprived of sleep, subjected to extreme temperatures and noise, kept in total isolation in a tiny cell under 24-hour surveillance, manacled and hooded for long periods of time, and underwent routine harsh interrogation.

Padilla’s attorneys, led by Anthony Natale, argue that the damage to Padilla’s mental faculties is so severe that he is legally unable to stand trial or assist in his own defense. If the court finds that Padilla is unfit to stand trial, as his lawyers argue, then the trial, scheduled to begin April 16, cannot go forward. The government would no doubt appeal such a decision, but in the meantime Padilla would likely be institutionalized and given psychiatric treatment.

Lawyers for the government, led by John C. Shipley, have attempted to stop this from happening by flatly denying that Padilla suffers from PTSD, citing a standardized test he was given while in custody. The government is also expected to call its own expert psychiatric witness—Rodolfo Buigas, a psychological evaluator for the Bureau of Prisons—who will say that Padilla is fit for trial.

The prosecution has focused as well on an alleged inconsistency in Padilla’s defense: the defense lawyers argue on the one hand that Padilla is mentally unfit for trial, and simultaneously argue on the other that he is to be believed when he says he was tortured by the US government.

The ongoing legal proceedings themselves are an inconvenience for the Bush administration, which originally arrested Padilla as a test case in the attack on fundamental democratic rights and assertion of police-state executive powers associated with the so-called “war on terror.”

Padilla was held incommunicado without trial or charges for almost four years before a November 2005 Supreme Court case threatened to call into question the entire practice of extra-legal detention. The Bush administration reacted to this development by hastily cobbling together criminal charges against Padilla and indicting him in a Florida criminal court. While this saved for the moment the denial of elementary democratic and legal rights to so-called “enemy combatants,” it forced the government into a courtroom where it is required to provide at least some evidence to substantiate the charges against Padilla.

The new criminal charges against Padilla, it should be noted, bear absolutely no relationship to the allegations of a “dirty bomb plot”—made on national television by then attorney general John Ashcroft as well as Bush himself—that constituted the initial justification for his incarceration. Padilla is now charged with conspiring to murder, kidnap and maim people in a foreign country, as well as two counts of conspiracy and aiding terrorists abroad.

Judge Marcia Cooke, upon examining the new government allegations, acknowledged that the government’s case was “light on facts.” Padilla pled not guilty.

On February 26, the military personnel who oversaw Padilla’s incarceration are scheduled to answer questions in court, although the prosecution aims to block this testimony on the grounds that it will compromise “national security.” Judge Cooke overruled a number of government objections to the testimony of Zapf and Hegarty, however, and may likewise allow Padilla’s jailers to testify.

Video reveals US torture of “enemy combatant” José Padilla

By Tom Carter
5 December 2006

Lawyers for José Padilla, the Brooklyn-born man imprisoned and tortured for almost four years by the Bush administration, have released to the media still frames from a video taken during one episode in the course of his captivity in a South Carolina Naval brig.

In June 2002, the Bush administration alleged that Padilla, an American citizen, was an Al Qaeda operative who was planning to manufacture and detonate a radioactive “dirty bomb” in the US. Bush declared Padilla an “enemy combatant” and on this basis deprived him of all due process rights guaranteed under the US Constitution.

Amid sensational headlines, Padilla was placed under military detention, denied legal counsel or any form of judicial process, and locked away in solitary confinement under the most inhuman conditions.

Padilla, now 36, was considered a “test case” in the Bush administration’s assumption of extraordinary powers, justified in the name of the “war on terror.” These include the supposed right of the president, simply on his own say-so, to declare any individual an “enemy combatant,” whether or not he is captured on a battlefield (Padilla was arrested in the US, at Chicago’s O’Hare International Airport), and lock him up indefinitely.

Last fall, having suffered a number of reverses in the federal courts and facing a Supreme Court review of Padilla’s military confinement, the Bush administration removed him from the Naval brig and charged him in a criminal indictment on terrorism charges unrelated to the “dirty bomb” allegations that were used to throw him into a legal black hole in the first place.

He is now imprisoned in Florida, and his lawyers are seeking to get the criminal charges against him thrown out on the grounds that he was subjected to systematic torture while under military detention and denied his constitutional rights.

The video images themselves, which made the front pages of major newspapers across the US on Monday, depict one of the few interruptions of Padilla’s three-year-and-eight-month incarceration and solitary confinement—when he was taken to the dentist for a root canal operation.

In the video, Padilla first extends his bare feet out of a small opening at the bottom of his cell door. They are then manacled. His hands, extended through a different window, receive the same treatment. His three guards, dressed in camouflage battle uniforms with their riot helmet visors down, open the door and remove Padilla from the cell.

Padilla is submissive and docile during the entire encounter. He gets a brief glimpse of the barren corridor outside his cell before blacked-out goggles and a noise-canceling headset are affixed to his head.

There are 16 cells in the unit—8 on the upper level and 8 on the lower level—but Padilla’s is the only one occupied. He is then marched off, flanked by his captors.

The methods depicted in these images, employed under direct order from the highest levels of the US government, are those normally associated with police-state regimes. Taken together, the images reveal one episode in the systematic and sadistic destruction of a human personality. Every action on the part of Padilla’s captors was undertaken to cause discomfort, hopelessness and depression, and ultimately to break his will to live.

Lawyers for Padilla filed a motion October 4 in the US District Court in the Southern District of Florida asking the court to throw out the criminal charges against their client on the grounds that he was tortured while in the custody of the US military. The legal brief provides a harrowing description of systematic mental and physical torture, including prolonged isolation, shackling and stress positions, and the administration of psychotropic drugs.

Only a week before the filing of the brief, the US Congress passed the Military Commissions Act of 2006, which codifies in US law the concept of “unlawful enemy combatant” and sanctions the continued torture of prisoners held by the American military and intelligence agencies. It denies people held at Guantanamo Bay and other US prison camps the fundamental right of habeas corpus—the right to challenge their detention in court—and deprives them of basic due process protections guaranteed by the US Constitution.

The premise of the lawyers’ argument is that Padilla’s treatment was so egregious that the government has forfeited the right to prosecute him, and that any such prosecution would be a violation of his due process rights. There is a tradition in US law that when treatment “shocks the conscience,” not only must the specific evidence obtained during the treatment be rejected, but the entire case must be thrown out.

The military has openly admitted that its treatment of Padilla has been designed to create a sense of complete helplessness. The filing quotes Vice Admiral Lowell Jacoby, director of the Defense Intelligence Agency, as stating in January 2003 that “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 him. He was deprived access to a lawyer for two years because communication would disrupt “the sense of dependency and trust” necessary for the interrogation.

According to the filing, “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 the will to live.”

The lawyers state that the basic ingredient of this torture was “stark isolation for a substantial portion of his captivity”—from June 9, 2002, to March 2, 2004. It was only in March 2004 that Padilla was provided access to a lawyer.

In addition to prolonged solitary confinement, Padilla was subjected to 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,” the filing continues, “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.... A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest,” including loud noises throughout the night.

To complete his sense of isolation, Padilla was denied reading material and even, at one point, the mirror in his tiny room. “He was never given any regular recreation time. Often, when he was brought outside for some exercise, it was done at night, depriving Mr. Padilla of sunlight for many months at a time. The disorientation Mr. Padilla experienced due to not seeing the sun and having no view on the outside world was exacerbated by his captors’ practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours, or more.”

More direct forms of torture were also used, including being placed in physically stressful positions for extended periods of 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.”

Interrogators lied to Padilla about where he was and threatened to deport him to places, including Guantánamo Bay, where they said his treatment would be even worse. “He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution.... Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, 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.”

“Apart from the psychological damage done to Mr. Padilla,” the filing states, “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 breathe 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.... The strain brought on by being placed in stress positions caused Mr. Padilla great discomfort and agony. Many times he requested some form of pain relief but was denied by the guards.”

Padilla’s attorneys contend that as a result of this sadistic treatment, their client has been so damaged mentally and emotionally as to complicate their efforts to prepare their case in his behalf. They have been forced to ask that Padilla not be allowed to testify in his own defense.

The attorneys report that Padilla is passive, friendly and likes to hear how the Chicago Bears football team is doing, but when they bring up questions relating to the charges against him, the Naval brig where he was held, or the interrogations to which he was subjected, he begins to twitch and contort his manacled body, and is unable to answer.

“Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government’s interrogation scheme,” public defender Andrew G. Patel, who has represented Padilla since the beginning of his incarceration, recently told the New York Times.

A Trial for Thousands Denied Trial
By Naomi Klein
The Nation

March 12 2007 Issue

Something remarkable is going on in a Miami courtroom. The cruel methods US interrogators have used since September 11 to "break" prisoners are finally being put on trial.

This was not supposed to happen. The Bush Administration's plan was to put José Padilla on trial for allegedly being part of a network linked to international terrorists. But Padilla's lawyers are arguing that he is not fit to stand trial because he has been driven insane by the government.

Arrested in May 2002 at Chicago's O'Hare airport, Padilla, a Brooklyn-born former gang member, was classified as an "enemy combatant" and taken to a Navy prison in Charleston, South Carolina. He was kept in a 9-by-7-foot cell with no natural light, no clock and no calendar. Whenever Padilla left the cell, he was shackled and suited in heavy goggles and headphones. Padilla was kept under these conditions for 1,307 days. He was forbidden contact with anyone but his interrogators, who punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds. Padilla also says he was injected with a "truth serum," a substance his lawyers believe was LSD or PCP.

According to his lawyers and two mental health specialists who examined him, Padilla has been so shattered that he lacks the ability to assist in his own defense. He is convinced that his lawyers are "part of a continuing interrogation program" and sees his captors as protectors. In order to prove that "the extended torture visited upon Mr. Padilla has left him damaged," his lawyers want to tell the court what happened during those years in the Navy brig. The prosecution strenuously objects, maintaining that "Padilla is competent," that his treatment is irrelevant.

US District Judge Marcia Cooke disagrees. "It's not like Mr. Padilla was living in a box. He was at a place. Things happened to him at that place." The judge has ordered several prison employees to testify at the hearings on Padilla's mental state, which begin February 22. They will be asked how a man alleged to have engaged in elaborate antigovernment plots now acts, in the words of brig staff, "like a piece of furniture."

It's difficult to overstate the significance of these hearings. The techniques used to break Padilla have been standard operating procedure at Guantánamo Bay since the first prisoners arrived five years ago. They wore blackout goggles and sound-blocking headphones and were placed in extended isolation, interrupted by strobe lights and heavy metal music. These same practices have been documented in dozens of cases of CIA "extraordinary rendition" as well as in prisons in Iraq and Afghanistan.

Many have suffered the same symptoms as Padilla. According to James Yee, former Army Muslim chaplain at Guantánamo, there is an entire section of the prison called Delta Block for detainees who have been reduced to a delusional state. "They would respond to me in a childlike voice, talking complete nonsense. Many of them would loudly sing childish songs, repeating the song over and over." All of Delta Block was on twenty-four-hour suicide watch.

Human Rights Watch has exposed a US-run detention facility near Kabul known as the "prison of darkness" - tiny pitch-black cells, strange blaring sounds. "Plenty lost their minds," one former inmate recalled. "I could hear people knocking their heads against the walls and the doors."

These standard mind-breaking techniques have never faced scrutiny in a US court because the prisoners in the jails are foreigners and have been stripped of the right of habeas corpus - a denial that, scandalously, was just upheld by a federal appeals court in Washington, DC. There is only one reason Padilla's case is different: He is a US citizen. The Administration did not originally intend to bring Padilla to trial, but when his status as an enemy combatant faced a Supreme Court challenge, the Administration abruptly changed course, charging Padilla and transferring him to civilian custody. That makes Padilla's case unique: He is the only victim of the post-9/11 legal netherworld to face an ordinary US trial.

Now that Padilla's mental state is the central issue in the case, the government prosecutors have a problem. The CIA and the military have known since the early 1960s that extreme sensory deprivation and sensory overload cause personality disintegration - that's the whole point. "The deprivation of stimuli induces regression by depriving the subject's mind of contact with an outer world and thus forcing it in upon itself. At the same time, the calculated provision of stimuli during interrogation tends to make the regressed subject view the interrogator as a father-figure." That comes from Kubark Counterintelligence Interrogation, a 1963 declassified CIA manual for interrogating "resistant sources."

The manual was based on the findings of the agency's notorious MK Ultra program, which in the 1950s funneled about $25 million to scientists to research "unusual techniques of interrogation." One of the psychiatrists who received CIA funding was the infamous Ewen Cameron of Montreal's McGill University. Cameron subjected hundreds of psychiatric patients to large doses of electroshock and total sensory isolation and drugged them with LSD and PCP. In 1960 Cameron gave a lecture at the Brooks Airforce Base in Texas in which he stated that sensory deprivation "produces the primary symptoms of schizophrenia."

There is no need to go so far back to prove that the US military knew full well that it was driving Padilla mad. The Army's field manual, reissued just last year, states, "Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and anti-social behavior," as well as "significant psychological distress."

If these techniques drove Padilla insane, that means the US government has been deliberately driving hundreds, possibly thousands, of prisoners insane around the world. What is on trial in Florida is not one man's mental state. It is the whole system of US psychological torture.

Citing torture, lawyers for Jose Padilla argue case should be dismissed

By Joe Kay
18 October 2006

Lawyers for José Padilla filed a motion October 4 asking a US District Court to throw out charges against Padilla on the grounds that he has been tortured while in the custody of the US military. Padilla is a US citizen who spent 42 months, mainly in solitary confinement, at a US Navy brig after being arrested in Chicago and declared an “unlawful enemy combatant” by the Bush administration.

The motion was filed by Michael Caruso, Padilla’s lawyer, in the US District Court in the Southern District of Florida. This is the first time that any details have been released on the nature of Padilla’s detention. The legal brief provides a harrowing description of systematic mental and physical torture, including prolonged isolation, shackling and stress positions, and the administration of psychotropic drugs.

In signing the act into law on Tuesday, President Bush called it a “vital tool” in the so-called “war on terror.” The treatment of Padilla demonstrates the type of methods that are sanctioned as the “law of the land” under the Military Commissions Act.

Like many caught up in the “war on terror,” Padilla has been used as a test case for asserting vastly expanded executive powers and undermining fundamental democratic rights. He has been particularly important for the Bush administration because he is a US citizen and was arrested on US territory.

Padilla was arrested in May 2002 at Chicago’s O’Hare Airport and declared a “material witness” in the investigation into the attacks of September 11. Thousands of people who had no connection to the September 11 attacks were rounded up as material witnesses and held for prolonged periods.

In June 2002, based on sensational charges that he was an Al Qaeda operative and had been plotting to explode a “dirty bomb” in the United States, Padilla was declared an “enemy combatant” by the Bush administration. He was transferred to military custody at a Navy brig in South Carolina, where he was held incommunicado for months.

In November 2005, following a series of court rulings rejecting the administration’s assertion that Padilla could be held indefinitely without being charged and without access to legal counsel, the government abruptly transferred Padilla from military to civilian custody, and produced new charges that had no connection to the original reports of a “dirty bomb.”

The indictment announced by Attorney General Alberto Gonzales charged Padilla with being part of a “North American support cell” that worked to support violent jihad campaigns outside the US. It said nothing about dirty bombs, an Al Qaeda link, or a plot to carry out an attack within the US.

This move came only a week before the government was due to file legal arguments in a US Supreme Court appeal by Padilla. It was a transparent attempt to remove the possibility that the Supreme Court would decide against the government. The fact that entirely new charges were introduced was a clear indication that the “dirty bomb” claims used to detain Padilla for over three-and-a-half years would not stand up in a court of law.

In April 2006, the Supreme Court denied a petition from Padilla for a high court review of his case, sanctioning the government’s maneuvers and leaving in place an appellate court decision supporting the administration’s assertion of vast executive powers to arrest and detain American citizens without charge.

The motion filed this month by Padilla’s lawyers does not address the substance of the government’s new charges, but rather his treatment while in military custody. The filing deserves to be quoted at some length for what it reveals both about crimes already committed by the US government, as well the crimes that are being prepared for the future.

Padilla’s treatment appears to have been a long experiment in testing different techniques for breaking him down. According to the filing, “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 the will to live.”

The lawyers state that the basic ingredient of this torture was “stark isolation for a substantial portion of his captivity”—from June 9, 2002 to March 2, 2004. It was only in March 2004 that Padilla was provided access to a lawyer.

Throughout his confinement, he was kept in strict isolation: “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.”

Scientific studies have found that such measures create profound and lasting psychological trauma, and constitute mental torture. “In addition to his extreme isolation,” the filing states, “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.... A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest,” including loud noises throughout the night.

Only after 20 months in solitary confinement was Padilla allowed very limited access to an attorney. Some of his conditions were ameliorated slightly, however the basic circumstances of his confinement remained.

Supreme Court shirks Padilla appeal against “enemy combatant” detention

By John Andrews
5 April 2006

In a thoroughly cowardly and unprincipled decision, the United States Supreme Court denied the latest petition by José Padilla, the US citizen who was held without charges or a hearing for 42 months—the first 22 of which were incommunicado, without access to family or lawyers—in a Navy brig.

Padilla was accused by former Attorney General John Ashcroft in June 2002 of plotting with Al Qaeda to detonate radioactive “dirty bombs” in the United States. President George Bush declared him an “enemy combatant”—a category his administration invented to deny people the protection of both US and international law. Subsequently, the government has dropped its allegations about a “dirty bomb” plot.

The immediate effect of Monday’s ruling is to uphold the reactionary opinion by the Fourth Circuit Court of Appeals—the most conservative court in the United States—which concurred with the Bush administration’s assertion of extraordinary executive power to apprehend American citizens on US soil and imprison them as “enemy combatants” for the duration of the “war on terror” (See “Court upholds power of White House to jail citizens as ‘enemy combatants’”). The action has been viewed as a tactical victory for Bush, who appears to have avoided an adverse decision in the high court after almost four years of playing legal dodge ball.

The denial of Padilla’s appeal for the court to review his case—in legal language a petition for a writ of certiorari—represents the second time the case has been in the Supreme Court since the FBI apprehended the Brooklyn-born convert to Islam in Chicago on May 8, 2002. At that time, federal authorities claimed that they were holding him as a witness to testify before a Manhattan grand jury investigating the September 11 attacks.

Days before a hearing seeking Padilla’s release pending what supposedly was to be his appearance before the grand jury, Bush issued the “enemy combatant” declaration, resulting in his transfer from a New York jail to a military prison in South Carolina. Two years later, his habeas corpus petition worked its way up from a New York trial court to the Supreme Court, which ruled 5-4 that the petition should have been filed in South Carolina, where any appeal would be decided by the Fourth Circuit, rather than in New York, which is within the more liberal Second Circuit Court of Appeals.

The habeas corpus petition took nearly two more years to work its way back to the Supreme Court. Last November, less than a week before the Bush administration was due to file its opposition to Padilla’s petition challenging the Fourth Circuit’s ruling, Attorney General Alberto Gonzales announced that Padilla would be released from military custody to stand trial in Florida on criminal charges of having once supported “jihad” outside the US. The indictment makes no mention of the purported “dirty bomb” plot or the subsequent charge of a conspiracy to blow up apartment buildings that were used to justify his military detention.

The sudden shift in Bush administration tactics was widely seen as a ploy to head off a review of Padilla’s case by the US Supreme Court, where there was a strong possibility of a ruling unfavorable to the administration’s unprecedented assertion of executive power. The Supreme Court has jurisdiction only over actual “cases or controversies,” however, and the Bush administration argued that its release of Padilla from military custody made the dispute “moot,” and therefore stripped the high court of jurisdiction.

The Supreme Court’s unusual response to the Bush administration’s machinations exposes how it sits not as a detached arbiter of legal principles, but rather as a forum where highly conscious representatives of the ruling elite work through its most fundamental disputes.

The briefing in the case was finalized late last year, and Padilla’s petition was distributed for the justices’ regular weekly conference on January 17. It takes only four votes out of nine to agree to hear a case (although after a case is accepted it takes a majority to reverse a lower court ruling) and decisions on whether or not they will be heard are usually resolved during the first weekly conference, or the second, at most. Padilla’s petition, however, was considered at eight separate weekly conferences before the decision to deny certiorari.

Associate Justices Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer voted in favor of reviewing the Fourth Circuit opinion. Chief Justice John G. Roberts, Jr., and Associate Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, Samuel A. Alito, Jr., and John Paul Stevens voted against Padilla. Stevens’s vote raised eyebrows among high court observers because he has sided with Ginsburg, Souter and Breyer in the other cases considering the expansion of executive power by the Bush administration and is considered the leader of the four-vote “liberal” bloc.

The two written opinions explaining the action underscore the degree of political maneuvering on the Supreme Court in response to the Bush administration’s assertion of near-dictatorial powers by invoking the constitutional provision declaring the president “commander in chief of the Army and Navy.”

The decision not to review the case was accompanied by a written dissent from Ginsberg, which begins with a reference to Stevens’s own dissent from the earlier Supreme Court ruling that sent the case to South Carolina. Writing that the case “raises a question ‘of profound importance to the Nation,’” Ginsburg defined the question as whether “the President ha[s] authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest an ‘enemy combatant.’”

What such a question poses is nothing less than the survival of the fundamental human right to be free from arbitrary arrest and imprisonment, first established in Anglo-American jurisprudence by the Magna Carta of 1215, and protected throughout the ensuing centuries by the “Great Writ” of habeas corpus.

Moreover—as Ginsburg correctly noted—the case is not “moot” because “nothing prevents the Executive from returning to the road it earlier constructed and defended.”

Kennedy wrote separately, joined by Roberts and Stevens, detailing the reasons why these three justices voted to deny review. A written opinion to explain concurring in the denial of certiorari is virtually unprecedented in Supreme Court annals.

Kennedy said that their votes did not turn on whether the case was moot, but rather on “strong prudential considerations disfavoring the exercise of the Court’s certiorari power.” Rather than using the case to curtail the Bush administration’s assault on the most fundamental democratic right, Kennedy asserted: “That Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.”

There was nothing “hypothetical” about the three-and-a-half years—most of it incommunicado—Padilla spent in the Charleston Brig. Nor is there any reason to believe that the Bush administration will not employ the same dictatorial methods against Padilla or someone else in the future.

Kennedy recognized this threat, declaring, “Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.” But rather than hear the case and prevent that from happening, he asserted that, were the Bush administration to throw him back into the legal black hole of “enemy combatant” status, Padilla “retains the option of seeking a writ of habeas corpus,” including before the Supreme Court.

This empty threat is aimed more at preserving the threadbare credibility of the Supreme Court than at warding off new dictatorial measures by the Bush White House.

Among the voices denouncing the decision was that of Amnesty International, which issued a statement expressing disappointment with the “Supreme Court decision not to review Mr. Padilla’s appeal. It is very important to challenge the notion the president can at whim place individuals outside the protection of the law. The dangerous presidentially designated category of enemy combatants is both unconstitutional and contrary to the international legal obligations of the United States.”

The Wall Street Journal and the case of Jose Padilla

By John Andrews and Barry Grey
1 December 2005

On November 25 the Wall Street Journal, following the Justice Department’s announcement of a criminal indictment against Jose Padilla, published an editorial supporting the Bush administration’s assertion of virtual police-state powers to seize US citizens and detain them indefinitely in military jails, stripping them of all legal recourse to contest their imprisonment.

The editorial exemplified the cynicism and dishonesty that are the stock in trade of the Journal’s editorial page. Dripping with contempt for the bedrock issues of democratic rights involved in the Padilla case, the editorial began: “It’s hard to pinpoint the precise moment when Jose Padilla became a liberal icon in the war on terror.”

The summary imprisonment of Padilla is a high-water mark in the Bush administration’s assault on democratic rights. One month after the arrest of Brooklyn-born Padilla by civilian authorities in Chicago’s O’Hare Airport, Bush issued a one-page order declaring Padilla to be an “enemy combatant.” Based on no other legal process, Padilla was transferred to a naval brig in South Carolina where he spent 42 months, the first 22 of which he was held incommunicado.

Then-Attorney General John Ashcroft went on national television to announce that the action was taken because Padilla was involved in a terrorist operation to detonate a radioactive “dirty bomb” in the United States. Two years later, however, a deputy United States attorney claimed that the plot was actually to fill New York apartments with natural gas and explode them. There has never been an evidentiary hearing in any court on either accusation.

The government’s issuing of a criminal indictment last week meant that Padilla would no longer be held in military detention, but would instead be prosecuted in the civilian court system. The indictment announced by Attorney General Alberto Gonzales accused Padilla of conspiring to wage “jihad” overseas. It made no mention of the domestic terrorism allegations used to justify his being declared an “enemy combatant” and thrown into the black hole of indefinite military detention.

This glaring omission alone makes clear the contrived, if not entirely invented, character of those charges, and the fact that the case was motivated by reactionary political considerations from the outset. Ashcroft’s sensational announcement of Padilla’s alleged terror plot was part and parcel of a systematic effort by the Bush administration to frighten the American people in order to justify unprecedented attacks on democratic rights at home and the buildup for war overseas, all in the name of the “global war on terrorism.”

The November 21 indictment was timed to head off an impending Supreme Court battle. According to the petition for certiorari filed by Padilla’s lawyers, the question presented is whether the president has “the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial.” Gonzales claims that because the administration has released Padilla from military custody to stand trial in a Florida federal court, the issue is now “moot” and, therefore, the Supreme Court should not consider it.

Padilla’s lawyers intend to press forward in the Supreme Court on the basis that the Bush administration continues to deem Padilla an “enemy combatant” and may send him back to military custody at any time.

The Journal editorial of November 25 lashed out at “liberal reaction to Padilla’s indictment,” writing, “the implication—contrary to what the courts have ruled—is that he is an innocent man held illegally for three and a half years.” This passage is a deliberate misrepresentation of the standpoint of those who have opposed the Bush administration’s assertion of quasi-dictatorial powers in the case, as well as court rulings which have gone against the administration’s position.

The editorial writers dishonestly conflate the question of whether Padilla was involved in any illegal or hostile actions with whether the Bush administration should be required to establish in a court of law the legal basis for depriving a person of his liberty. They construct this amalgam to discredit those who oppose Bush’s wholesale assault on constitutional rights by painting them as terrorist sympathizers.

The editorial cites a reactionary ruling on the Padilla case handed down last September by the Fourth Circuit Court of Appeals as asserting “that the President ‘unquestionably’ has the right to detain a US citizen who has taken up arms against his country.” The wording here is contrived to evade a central issue with vast implications for democratic rights.

How is it to be established that a US citizen took up arms against his country? (In the case of Padilla, the person imprisoned was seized not on a battlefield, but at a US airport). By a one-page presidential order, untested in court? What is implicitly denied is the basic right of a person put in prison to challenge the factual charges made by the state, and the principle that such matters of fact are settled through a judicial process, in which the accused is presumed innocent until the state proves the contrary.

It is likewise dishonest for the Journal to claim that critics of the administration are arguing “contrary to what the courts have ruled.” The editorial asserts that in summarily imprisoning Padilla, Bush was “exercising the authority that other wartime Presidents have used,” and implies that Bush has prevailed on every legal challenge, starting with “a federal judge in Manhattan” who “ruled that the President has the constitutional authority to detain enemy combatants.”

In fact, that federal judge, Michael Mukasey, ruled on December 4, 2002 against the Bush administration’s claims that it could hold Padilla without access to legal counsel or an evidentiary hearing. The Bush administration appealed and lost, with the Second Circuit Court of Appeals ordering that Padilla either be released or charged with a crime. At the oral argument, Judge Barrington Parker, Jr., himself appointed by Bush, said that if the administration’s argument became law, “we would be effecting a sea change in the constitutional life of this country by making changes that would be unprecedented in civilized society.”

By a 5-4 vote, the Supreme Court avoided, on narrow procedural grounds, a review of the Second Circuit decision, claiming that Padilla had filed for habeas corpus in the wrong court. In dissent, Associate Justice John Paul Stevens wrote, “At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.”

The next judge to consider the legality of Padilla’s detention, Bush appointee Henry Floyd of South Carolina, also ruled that Padilla had to be charged with a crime or released. Floyd wrote that if the administration’s position “were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry’s individual liberties.”

Only the Fourth Circuit, the most reactionary in the nation, in an opinion by right-wing Judge Michael Luttig—a prominent candidate for Bush’s next Supreme Court appointment—upheld the administration’s position. The Journal claimed that Luttig was merely applying “the precedent set by the Supreme Court last year in the Hamdi case, which concerned another American citizen being detained as an enemy combatant.”

While the position of the Bush administration in the Hamdi case was no less anti-democratic and, from a constitutional standpoint, indefensible than in the Padilla case, the circumstances in the two cases were very different. Yaser Hamdi was captured on an Afghanistan battlefield with a detachment of Taliban soldiers. Padilla was picked up by the FBI while walking, unarmed, through an American airport.

What the Journal would prefer is a Supreme Court ruling resoundingly upholding the administration’s assertion of police-state powers. “Now that Padilla has been indicted, the appeal is probably moot—which is too bad,” the editorial states, “missing a chance at a larger victory for executive war-fighting authority.” It continues: “Largely absent from the public debate over one man’s rights has been any discussion of the rights of the rest of us—namely, the right to be protected against enemy attack.”

In other words, “one man’s rights,” including the right to liberty itself, can be abolished at the whim of a president on the basis of an unsubstantiated claim to be protecting “against enemy attack.” And if this can be done to “one man,” it can be done to all men. Under this logic, there is nothing to stop warrantless entries and searches, as well as summary imprisonment, torture and execution, so long as the president claims to be acting in the national defense.

This is how the Wall Street Journal treats fundamental rights dating back at least to the Magna Carta of 1215. Article 29 of that document, enacted specifically to prevent the sovereign from arbitrarily arresting and imprisoning perceived enemies of the Crown, states that “no Freeman shall be taken, or imprisoned... but by lawful judgment of his Peers or by the law of the land.” The identical principle is enshrined in the Fifth Amendment of the US Bill of Rights, which provides that “no person shall be... deprived of life, liberty, or property, without due process of law.” This basic concept, that no one can be imprisoned without legal recourse, is embodied in the “great writ” of habeas corpus.

The appearance of such an editorial in a major US newspaper—and the flagrant abuse of presidential power which it defends—must be taken as a warning by the working class. The Journal speaks for dominant sections of the ruling elite which have abandoned any genuine commitment to democratic processes. The fact that there has been no serious opposition to Bush’s authoritarian measures from the so-called liberal media or the Democratic Party shows that there is no section of the US financial and political establishment that seriously defends democratic rights.

Judge orders end to indefinite detention of Jose Padilla

By Patrick Martin
2 March 2005

In a ruling that systematically rejects White House claims of unbridled executive power to seize and detain American citizens, a federal judge in South Carolina on Monday ordered the Bush administration to release alleged terrorist Jose Padilla within 45 days or bring charges against him in a state or federal court.

The Justice Department immediately announced it would appeal the decision by Judge Henry F. Floyd to the Fourth US Circuit Court of Appeals, in Richmond, Virginia.

The decision in Padilla v. Hanft was all the more remarkable because it was issued by a judge who was appointed in 2003 by Bush himself. This underscores the fact that the Bush administration’s trampling on US constitutional norms is so flagrant that it has aroused concerns even among some elements of the Republican Party.

Judge Floyd upheld essentially all the contentions of Padilla’s lawyers, who charged that his indefinite detention violated the Second, Third, Fourth, Fifth and Sixth Amendments of the Constitution, as well as the Non-Detention Act, an act of Congress which explicitly prohibits arbitrary detention of any US citizen on the basis of executive fiat.

Padilla, a US citizen, now 34, was arrested May 8, 2002 when he stepped off an airplane at Chicago’s O’Hare Airport. He was held in federal custody for a month, until June 9, when President Bush ordered his transfer to a military brig in order to forestall a habeas corpus petition filed on Padilla’s behalf by a public defender.

At the time, the Bush administration sought to justify the action with lurid claims that a major terrorist attack had been nipped in the bud. Attorney General John Ashcroft said that the arrest had prevented an atrocity comparable to the attacks on New York and Washington on September 11, 2001. The administration provided the media with sensational and uncorroborated details of Padilla’s alleged role in a plan to detonate a “dirty bomb”—a conventional explosive wrapped in radioactive material—inside a major US city. Deputy Defense Secretary Paul Wolfowitz subsequently admitted that even if Padilla had intended such an attack, he had made no plans nor taken any actions toward it.

The Padilla case became the occasion for an unprecedented assertion of executive power. Bush issued an executive order declaring Padilla an “enemy combatant,” cutting off his ongoing contact with his lawyer, and instructing the Justice Department to move him from a federal cell in New York City to the Navy brig in Charleston, South Carolina, where he has remained ever since.

Padilla has now been in military custody for nearly 33 months without any charges being brought or any opportunity to confront his accusers or assert his constitutional rights. This is the longest that any US citizen has ever been held without any judicial proceeding, simply on the say-so of the president.

A legal case brought by Padilla’s attorneys reached the Supreme Court last June, along with a similar appeal by attorneys for Yasser Hamdi, an American-born Saudi youth who was captured in Afghanistan, turned over to the US military and taken to the Guantanamo Bay detention camp. When Hamdi’s American birth and citizenship were discovered, he was transferred to the same South Carolina brig as Padilla, and held under the same conditions: without a lawyer or any access to the courts.

In the Hamdi case, the Supreme Court ruled by 8-1 that while Bush had the power to hold a US citizen captured on a foreign battlefield, the government could not hold him indefinitely and had to accord him access to a legal procedure to challenge his detention. Rather than present any evidence that Hamdi was a terrorist—there is no reason to believe that such evidence existed—the Bush administration simply released him from military custody and returned him to Saudi Arabia, in return for a promise to stay in that country.

The Supreme Court’s ruling on Padilla’s appeal evaded the central issue of executive power, focusing instead on a technicality. The justices required Padilla to refile his case in a federal court in South Carolina, where he was being held, rather than in New York, where he was initially held and where his public defenders brought their suit for habeas corpus. The refiled case came before Judge Floyd, but produced a decision far more unfavorable to claims of executive power than the Hamdi decision eight months before.

Floyd flatly rejected the claim that Bush has the authority to order the indefinite detention of a US citizen arrested on American soil. “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” he wrote.

In a remarkably scathing passage, Floyd challenged the claim that presidential authority in wartime is absolute and unquestionable. He wrote:

“Certainly Respondent does not intend to argue here that, just because the President states that Petitioner’s detention is ‘consistent with the laws of the United States, including the Authorization for Use of Military Force’ that makes it so. Not only is such a statement in direct contravention to the well settled separation of powers doctrine, it is simply not the law. Moreover, such a statement is deeply troubling. If such position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry’s individual liberties.”

The 23-page opinion systematically takes up and demolishes the various claims of the Bush administration, in a manner that suggests not only rejection of the anti-democratic and authoritarian position of the White House, but genuine anger on the part of the judge at the cynical, bad faith legal arguments employed.

The Bush administration claimed its actions were based, in part, on the Supreme Court’s 1942 decision Ex Parte Quirin, which involved German agents arrested on American soil during World War II after they were landed by U-boats to carry out sabotage. One of the spies claimed American citizenship and sought to challenge his arrest on that basis. The Supreme Court turned him down. Floyd pointed out that these German spies were tried before a military tribunal under a procedure established by Congress. They were not held arbitrarily or indefinitely on an order by the president.

The Bush administration further claimed as a legal basis for its detention of Padilla the Congressional Joint Resolution of September 18, 2001, passed in the wake of the terrorist attacks on New York and Washington, which authorizes “all necessary and appropriate force” against those engaged in preparing or supporting such attacks. Floyd ruled that while the detention of Hamdi, taken on a battlefield in Afghanistan, might have been legal, he did not believe “the same is true when a United States citizen is arrested in a civilian setting such as a United States airport.”

Perhaps the most absurd legal argument was the government’s claim that Padilla was not “in” the United States because he was arrested at an airport as he arrived on an international flight from Europe. Floyd rejected his claim—an attempt to equate Padilla’s arrest with Hamdi’s in Afghanistan—as fatally flawed, noting that the Bush administration had been unable to find a single court precedent supporting this position.

Judge Floyd also rejected the claims of authority inherent in Bush’s powers as commander-in-chief—the main staple of Bush’s lawyers in both the White House and the Justice Department who argued that international treaties against torture could not tie the president’s hands in the interrogation of suspected Taliban and Al Qaeda prisoners. He cited the famous argument by Justice Robert Jackson, in the 1952 Supreme Court decision overturning President Truman’s seizure of the steel industry during the Korean War: “The Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute also Commander-in-Chief of the country, its industries and its inhabitants.”

The judge wrote: “The Court is of the firm opinion that it must reject the position posited by Respondent. To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

He concluded: “Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Petitioner just as they should have. At the time that Petitioner was arrested pursuant to the material arrest warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned—and was indeed questioned—just as any other citizen accused of criminal conduct. This is as it should be. There can be no debate that this country’s laws amply provide for the investigation, detention and prosecution of citizen and non-citizen terrorists alike.”

This analysis attacks the entire premise of the Bush administration’s self-proclaimed “war on terror.” It rejects the notion that democratic rights and constitutional norms must be suspended as unnecessary obstacles to the defense of the American people against terrorism. Both the tone of the decision and its legal implications confirm that the ceaseless expansion of unchecked presidential power, not the supposed threat of terrorism, represents the greatest danger to the rights of the American people. It also exposes the glaring hypocrisy of a government that claims to be conducting a crusade for “democracy” around the world while it claims for itself virtually dictatorial powers and lays siege to democratic rights within the US.

US to hold Jose Padilla indefinitely without charges

By Patrick Martin
15 June 2002

The Bush administration confirmed June 13 that it had no plans either to charge, try or release Jose Padilla, the Brooklyn-born man who was seized by FBI agents last month at O’Hare Airport in Chicago as he returned to the United States from a lengthy stay overseas. Padilla, also known as Abdullah al Muhajir, is the first US citizen to be subjected to indefinite detention by the Bush administration under its unilateral assertion of wartime executive power.

Justice Department officials told a closed-door hearing of the Senate Judiciary Committee that the president had the legal power to order an American citizen detained indefinitely as a preventive measure. Unable to cite any law or constitutional provision that sanctioned such an action, they declared it to be a power inherent in Bush’s role as commander in chief.

This declaration was made despite the fact that government sources admitted, on the day that Padilla’s transfer to military jurisdiction was announced, that the Bush administration did not have evidence sufficient to warrant indictment, let alone conviction, by a civilian court.

The Justice Department officials said that a final decision had been made not to put Padilla before a military tribunal either. In effect, the US government admitted that the reason Padilla was transferred June 9 to military custody was to avoid bringing him before a federal district court in New York City for a hearing scheduled June 11 on his detention as a “material witness.”

These statements amplified the declaration by Defense Secretary Donald Rumsfeld the previous day, who said, referring to Padilla, “We are not interested in trying him at the moment or punishing him at the moment. We are interested in finding out what he knows.” Rumsfeld was not asked whether this meant Padilla would be subjected to illegal forms of interrogation, such as torture, to obtain such information.

The declaration that the executive branch alone has the power to decide when a person qualifies as a combatant concludes a week of brazenly anti-democratic government actions against alleged Al Qaeda prisoners. These are not actions with ominous implications for the future; they are, rather, current, ongoing and expanding violations of the constitutional protections and legal rights of arrested persons.

Besides throwing Padilla in a military brig, the administration has barred him from consulting or communicating in any way with his court-appointed lawyer, Donna Newman of New York City. Newman filed a habeas corpus motion with US District Judge Michael Mukasey, who gave prosecutors until June 21 to respond.

The Pentagon also refused to allow a lawyer to meet with Yaser Esam Hamdi, another US-born detainee who was captured fighting for the Taliban regime in Afghanistan. Hamdi is in military custody in the United States. On June 13 federal prosecutors went before the Fourth Circuit of Appeals, seeking to stay a federal court order requiring the military to grant Hamdi access to a federal public defender. Having barred the public defender from meeting with Hamdi, the government is now arguing that the attorney has no standing to sue on Hamdi’s behalf because he has not yet met with him.

In a third case, the Washington Post reported June 12 that an Arab immigrant arrested outside Chicago after the September 11 attacks had been held for more than eight months in federal custody without ever being brought before a magistrate or being assigned a lawyer. Nabil Almarabh, 35, a former cab driver in Boston, was picked up on September 18 and did not appear in court until May 22. He was finally arraigned in early June on immigration charges, for which the penalty is less than the time he has already spent in jail.

Justice Department lawyers argued that Almarabh had forfeited all his legal rights by returning to the United States illegally in violation of a previous deportation order. They also cited new powers to detain immigrants for prolonged periods of time under the USA Patriot Act, although the law was not adopted until several months after Almarabh’s arrest.

In her petition for a writ of habeas corpus, Jose Padilla’s lawyer asserts that the US government has violated such basic constitutional rights as the right to due process, to be free from unreasonable seizure, to obtain counsel, and to appear before a grand jury to hear the charges against him. “In short, the government’s latest maneuver, similar to the government’s detention here, is an attempt to detain Padilla indefinitely,” the petition says. The document declares the evidence against Padilla to be “weak at best” and points out that while the government has classified Padilla as an “enemy combatant,” there has been no congressional declaration of war.

Press accounts of the internal discussions concerning Padilla within the Bush administration raise many questions about the nature of the case. The New York Times reported June 13 that FBI officials had discussed whether to arrest him as he entered the United States, or follow him in order to track any accomplices or contacts, especially those who might have access to radioactive materials. They allegedly decided that it was too risky to try to track him, even though Padilla had been kept under surveillance for several months in Egypt and Switzerland.

Several officials confirmed that political considerations were uppermost in the decision to arrest Padilla. According to the Times: “officials said the arrest was important in demonstrating how the FBI and Central Intelligence Agency could undertake a successful prevention operation. They said that the Justice Department was eager to showcase the Padilla case after weeks in which the FBI had been battered in Congress for missing potential warning signals of the Sept. 11 attacks.”

Friday, Jun. 14, 2002

Person of the Week: Jose Padilla

By Tony Karon

An al-Qaeda plot was broken up this week — a well-organized conspiracy involving hardened, well-trained bin Laden operatives taking instructions from the surviving operational core of the organization, with the know-how, experience and the means to kill dozens of unsuspecting Americans. And it was busted through timely cooperation by a number of different intelligence agencies.

That plot, of course, had nothing to do with Jose Padilla, or his notorious alter ego, Abdullah al-Mujahir. It concerned three Saudi Arabian al-Qaeda operatives recently relocated to Morocco, who had planned to use a rubber dinghy packed with explosives to attack U.S. Navy vessels passing through the Strait of Gibraltar. The reason you're probably only faintly aware, if aware at all, of the foiled Morocco plot is that the U.S. media has been dominated this week by a mug-shot of former Chicago gangbanger Padilla, and talk of "dirty bombs."

Padilla entered public life via an announcement from Moscow on Monday, by Attorney General John Ashcroft, that an al-Qaeda operative had been captured at Chicago's O'Hare International Airport, en route to contaminate a U.S. city with a radiological bomb. Within minutes panicky cable news channels were running file footage of mushroom clouds. They then spent much of the next two days atoning via a more sober explanation of dirty-bomb scenarios — and why they're not nearly as scary as they sound.

But as the (not quite radioactive) dust settled on Ashcroft's dramatic announcement, some began asking not only why Mr. Padilla, a U.S. citizen, was being held in a Navy brig as an "enemy combatant," but also why he was dominating America's headlines — and its nightmares. Within hours of Ashcroft's announcement, administration officials were pointing out that Padilla had no radioactive material or any other bomb-making equipment. Nor had he chosen a target, or formulated a plan. And while his connections with al-Qaeda operatives were never in doubt, he suddenly began to look a lot more like the accused shoe-bomber Richard Reid (i.e. another disaffected ex-con from the West desperate to get in with al-Qaeda) than like the sophisticated professionals who put together September 11.

Details, of course, are sketchy, but it appears that Padilla converted to Islam after a prison spell in Florida, and eventually made his way to Afghanistan or Pakistan to make common cause with al-Qaeda. According to the government's account, he approached them with the idea of detonating a "dirty bomb" in a U.S. city, and they obliged by teaching him to wire a bomb. The impression, in the government's own account, is of a former street hoodlum desperate to join a new gang — and being kept at arm's length. An outsider taught to build a bomb (what's not to like, for al-Qaeda, about a U.S. passport holder asking to be taught how to kill his countrymen?) but not necessarily integrated into the organization he was desperate to join. The fact that the authorities arrested Padilla immediately on his arrival in Chicago rather than following him around in the hope that he would reveal al-Qaeda operatives already on U.S. soil says volumes about how little may have known about the organization.

There are plenty of reasons to suspect that al-Qaeda keeps men like Padilla and Reid at arm's length: Ex-convicts from Western prisons are inherently unreliable as recruits, not only because of their dubious past (Bin Laden's men tend to be repressed puritans rather than penitent sinners) but also because they'd be prime candidates for recruitment by Western intelligence agencies. And because Western volunteers are generally converts, al-Qaeda would not have the community and kinship networks available to them in the Arab world to verify the credentials of men like Padilla. That would dictate that while they would be given training and logistical means to harm al-Qaeda's enemies, they would be kept away from information that, in the wrong hands, would harm the network.

Padilla got some instruction in bomb-making, and some cash. And al-Qaeda leaders reportedly discussed with him schemes ranging from "dirty bombs" to blowing up gas stations — discussions which some captive terrorist leaders appear to have shared with U.S. agents. So Padilla flew back to Chicago under U.S. surveillance, and into the waiting arms of the FBI. That was a month ago; the story broke this week because the authorities had to move him out of the criminal justice system and into military detention, for lack of evidence (at least evidence which the government would be willing to reveal to a judge) to support keeping him in prison. By week's end, the nation's focus was on the constitutional and legal challenges posed by denying a U.S. citizen the rights of due process, rather than the threat presented by Padilla's discussions and training. Unkind voices in Washington even drew attention to the fact that the timing of the announcement had helped the administration forestall criticism over the government's handling of intelligence and security matters.

And what has almost certainly been lost in the cacophony of a news week dominated by Jose Padilla, is the recognition that a major blow has been struck against al-Qaeda — in far-off Morocco.

Find this article at:
http://www.time.com/time/nation/article/0,8599,262269,00.html

OK City happened between the time Jose was released from prison but before he left the country. If Jose is the operative that the FBI worked so hard to persuade everyone did not exist, then this would explain why the Government has backed off from the "Dirty bomb" story so quickly, why Jose is being held in secret and not even his attorney is allowed to speak with him.

Padilla is an American citizen, he OBVIOUSLY speaks 'American', he gets hooked up with a gang in South Florida so he MUST have 'learned' a Hispanic dialect, he BECOMES a Muslim and goes overseas to one of the 'Terror States', etc and is befriended by the folks there so he MUST have 'learned' Pushtun, Urdu or one of the other dialects mixed in with 'American'. Just how many languages does this man speak? Are we being duped again into thinking this is another 'under-educated minority' who just happens to know how to search the net and find enough data to build a so-called 'Dirty Bomb' and then set it off at the behest of his handlers? There is more to this than meets the eye as anyone who knows languages can tell you that Pushtun, Urdu and the other dialects spoken overseas are not easily picked up in the ghettos of Chicago or South Florida in a few weeks or months, it takes years.

The Bad Guy
From the Archives
Gangbanger, fifth columnist, radical Muslim, poor fatherless Puerto Rican—is it mere coincidence that in Jose Padilla the government has the perfect fall guy?

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JOSE PADILLA PAGE

Padilla suffered brain damage during captivity, experts say