[Ppnews] Update - The Tragic Case of Jose Padilla

[Political Prisoner News]

http://www.counterpunch.org/

March 8, 2007


Incompetence and Egregious Government Misconduct


The Tragic Case of Jose Padilla

By ELAINE CASSEL

Last week, U.S. District Judge Marcia Cooke ruled that American 
citizen Jose Padilla, who is now facing terrorism charges in Miami, 
Florida, is competent to stand trial.

In spite of the troubling legal and moral aspects of this case, Judge 
Cooke's ruling was in line with what many other judges would have 
done in her position.

In order to put the competence issue in context, it is necessary to 
review the long and unprecedented history of the U.S. government's 
cases against Jose Padilla. Cases involving Padilla have been before 
federal courts in New York, South Carolina, and now Florida, and back 
and forth to the U.S. Supreme Court on three occasions.

It all began with Padilla's arrest on May 8, 2002, at Chicago's 
O'Hare Airport, on a material witness warrant, issued by a New York 
federal district court in connection with a grand jury investigation 
into the September 11 terrorist attacks.

Donna Newman, a private attorney appointed by a New York City federal 
judge to represent Padilla, filed a motion to vacate the warrant. 
Before the motion could be decided, however, Padilla was moved, in 
the dark of night and without notice to Newman, to a Navy brig in 
Charleston, South Carolina. President Bush had named him an "enemy 
combatant." The government claimed, at the time, that Padilla was 
part of a plot to detonate "dirty bombs" and blow up apartment 
buildings in the U.S. (Later, as noted below, it developed that the 
government apparently could not prove these charges.)

Meanwhile, even though Padilla was in South Carolina, Padilla's 
attorneys fought for the release of their client in the New York 
district and appellate courts. Both courts ruled in favor of Padilla 
. The government then sought review from the U.S. Supreme Court, 
arguing, among other things, that the New York courts had no 
jurisdiction due to Padilla's move to South Carolina. The Supreme 
Court agreed, and, in Rumsfeld v. Padilla, in June 2004, the Court 
decided, 5-4, to dismiss the case as improperly filed.

Padilla's attorneys then began anew in challenging Padilla's 
detention as an enemy combatant. They refiled their case in U.S. 
District Court in Charleston, South Carolina. The federal district 
court judge ordered Padilla charged or released within 30 days. The 
government promptly appealed. 
<http://www.amazon.com/exec/obidos/ASIN/1556525559/counterpunchmaga>
[]
The U.S. Court of Appeals for the Fourth Circuit, the most 
politically conservative federal appeals court in the country, 
reversed the district court.

Of course, Padilla's attorneys appealed this ruling to the Supreme 
Court. Court watchers expected this to be a crucial test of the 
limits--if any--the high court would put on the Bush Administration's 
claim of sweeping wartime powers. Then, the case took a surprising turn.

Weeks before the Supreme Court was scheduled to vote on whether to 
accept the appeal, the government notified Padilla's attorneys that 
it was transferring him to Miami, Florida, to face criminal charges 
in federal court for involvement in a vague terrorist conspiracy. The 
indictment was devoid of any mention of dirty bombs or blowing up 
apartment buildings -- presumably because these prior claims could 
not be proven.

Even though Padilla's attorneys agreed to the transfer--after all, 
what they wanted for their client was a day in court--in an amazing 
move, the Fourth Circuit Court of Appeals refused to allow it. An 
angry Judge Michael Luttig -- an ardent Bush supporter who was 
reportedly short-listed for what became Justice Samuel Alito's seat 
on the Supreme Court -- accused the government of playing fast and 
loose with the facts and with the court. How could Padilla be an 
enemy combatant one day, and a criminal defendant the next? The 
government appealed the Fourth Circuit's order to the Supreme Court, 
which found no legal basis to thwart the Justice Department's request.

Meanwhile, the petition for review of the initial Fourth Circuit 
ruling -- upholding Padilla's "enemy combatant" detention -- was 
still pending before the Supreme Court. Indeed, it appeared that the 
reason the government transferred Padilla to Miami was in a bid to 
moot the chance review would be granted.

Doubtless, the government did so because it did not want to take the 
chance of another ruling like Hamdi v. Rumsfeld. There, writing for a 
5-4 majority, Justice O'Connor famously stated that war is not a 
blank check for the president. Accordingly, the Court held that Yaser 
Hamdi (a dual citizen of the U.S. and Saudi Arabia captured abroad) 
could not be held indefinitely in a military brig as an "enemy 
combatant." (Shortly after the Court's ruling, the government 
released Hamdi, and flew him to Saudi Arabia -- an action that 
severely undermined the rationale for his detention, which had 
occurred based on the claim he was a highly dangerous enemy combatant.)

Unlike Hamdi, however, Padilla never got his day before the high 
court. In April 2006, only three Justices (four are needed) voted to 
grant the appeal. Two written opinions accompanied the decision to 
decline review. Both Justice Kennedy (who wrote in favor of the 
decision) and Justice Ginsburg (who argued that review should have 
been granted) focused on the potential mootness issue -- caused by 
the fact Padilla was no longer confined based on an "enemy combatant" 
designation.


The Incompetence Claim

Since April 2006, the focus has shifted to Judge Clarke's courtroom. 
She dismissed some of the criminal charges against Padilla, finding 
them insufficiently supported by facts, only to have them reinstated 
by the U.S. Court of Appeals for the Eleventh Circuit.

Last week, with Padilla's case set for trial in April, Judge Clarke 
turned her attention to Padilla's claim that he was mentally 
incompetent to stand trial.

In support of this claim, the defense's mental health experts 
testified that Padilla was suffering from post-traumatic syndrome 
(PTSD), an anxiety disorder suffered by people exposed to an extreme trauma.

People with PTSD experience three different kinds of symptoms: 
reliving the trauma through flashbacks and dreams; becoming upset 
when faced with reminders of the traumatic event; and avoiding 
reminders of the trauma by self-isolation and emotional detachment.

PTSD is a weak diagnosis on which to hang an incompetence defense. 
The Supreme Court made clear in 1985, in Ake v. Oklahoma, that to be 
deemed competent to stand trial, a defendant need only be able to 
understand the charges against him, the possible penalty if he is 
convicted, the adversarial nature of the legal process, and be able 
to assist his attorneys in his defense.

Padilla's attorneys have focused on that last requirement -- 
Padilla's ability to assist them in his defense. They have said that, 
for example, Padilla was reluctant to discuss the case with them, and 
that he shut down, refused to talk to them, and appeared panicked or 
distraught when they attempted to question him. They have reported 
that he sometimes seemed unable to distinguish between them and his 
government prison guards and interrogators, at whose hands he said he 
was repeatedly tortured. They added, as well, that he refused to 
listen to tapes of his prison interrogation -- tapes that will be a 
significant part of the prosecution's case against him at trial.

Judge Cooke nevertheless found that Padilla was competent to assist 
in his defense. It was clear that her own observations of Padilla in 
her courtroom factored into her decision. She noted that over the 
months he had been in her courtroom, he had appeared attentive to the 
proceedings and his attorneys. She also referred to an affidavit he 
signed concerning his claims of torture. Padilla's attorneys could 
not have ethically presented the affidavit to the court, had Padilla 
not been the source of the affidavit, and read and understood what he 
was signing. Finally, it may have affected the judge's decision that, 
on the first day Padilla appeared before her, she was able to order 
that his chains and shackles be removed, as he appeared to be no 
threat to courtroom safety, and this has continued. Indeed, his 
prison guards have testified that he is a docile prisoner.

The Kind of Defendants That Are -- And Are Not -- Found to Be 
Mentally Incompetent

That Padilla looked and acted "competent" points out the practical 
realities relating to a claim of incompetence. Only a handful of 
defendants are found incompetent. When they are, it is generally 
obvious, even to an untrained observer, that they are mentally ill. 
Regardless of the psychiatric label, a defendant who appears to be in 
his "right mind" -- that is, one who is well behaved, and is neither 
hallucinating nor talking gibberish -- simply is not going to be 
found incompetent.

Consider the case of Russell Weston, who in 1998 stormed the U.S. 
Capitol building with a .38 caliber handgun. He was on a mission, he 
said, to dismantle the "Ruby Satellite System" that was spreading a 
deadly disease. He shot and killed two police officers because, he 
said, they were getting in the way of his reaching the controls of 
the system. However, he explained, they only appeared to be dead; 
they would wake up when he gave the order.

Weston was found incompetent, and ordered to be medicated in order to 
regain competence. To this day he is hospitalized in a North Carolina 
federal prison hospital, still being medicated. Even the government's 
experts say that Weston will likely never be competent to be tried.

A more recent example is Andrea Yates, the Texas mother who murdered 
her five children by drowning. She was originally found to be 
incompetent because she was diagnosed as being profoundly depressed 
reported auditory hallucinations. She was hospitalized, medicated, 
found competent, and tried within three months.

Neither Padilla's diagnosis nor his demeanor fit the stereotype of an 
incompetent defendant.


Will Judge Clarke Dismiss the Case Based on Egregious Government Misconduct?

Still pending, before Judge Cooke, is Padilla's motion to dismiss the 
charges based on the government's egregiously inhumane treatment.

Affidavits from Padilla and his attorneys detail outrageous 
conditions of confinement, particularly while he was held as an 
"enemy combatant," and not yet charged with a crime. Allegations not 
disputed by the government include long periods of sensory 
deprivation, interspersed with periods of extreme noise and constant 
bright lights to deprive Padilla of sleep; solitary confinement for 
now more than five years; and denial of access to an attorney for two 
years. The government disputes Padilla's sworn allegations of 
physical torture that include beatings, injection with mind-altering 
drugs, and denial of medical treatment.

If Padilla's motion to dismiss on these grounds were granted, it 
could benefit the hundreds of prisoners at Guantanamo Bay, Cuba, who 
have been held in similar conditions for more than five years, too. 
But there is little chance, in my view, that the motion will be granted.

In the 1973 case of U.S. v. Russell, the Court's opinion -- written 
by then-Justice Rehnquist -- conceded that there could, in theory, be 
an instance where government mistreatment of a criminal defendant is 
such an outrageous deprivation of due process that the charges 
against him should be dismissed. Yet besides this, there is little 
precedent to support Padilla's request.

Moreover, even if Judge Cooke were to dismiss the charges -- for she 
has indicated she is appalled by the conditions of Padilla's 
confinement -- the government would doubtless appeal to the Eleventh 
Circuit, and Judge Cooke likely would be reversed again.

I predict that some day the Supreme Court will hear the merits of 
Jose Padilla's case. It will not be able to stand on technicalities 
forever. Whatever it does decide about the constitutionality of the 
way Padilla has been treated by his own government for years, the 
decision will have profound importance to every American who 
presumes, perhaps wrongly, that rights of due process, the rule of 
law, and fair play--long held to be hallmarks of our justice 
system--still mean something today.

Elaine Cassel practices law in Virginia and the District of Columbia 
and teaches law and psychology. She doesn't like being lied to. Her 
new book 
<http://www.amazon.com/exec/obidos/ASIN/1556525559/counterpunchmaga>The 
War on Civil Liberties: How Bush and Ashcroft Have Dismantled the 
Bill of Rights, is published by Lawrence Hill. She can be reached at: 
<mailto:ecassel1 at cox.net>ecassel1 at cox.net


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