[Ppnews] Jose Padilla - court rules sentence too lenient

[Political Prisoner News]

11th Circuit 
<http://www.ca11.uscourts.gov/opinions/ops/200810494.pdf>issued a 
ruling, by a 2-1 vote, rejecting each and every one of Padilla's 
arguments.  It then took the very unusual step of  vacating the 
17-year-sentence imposed by the trial court as too lenient and, in 
effect, ordered the trial judge to impose a substantially harsher prison term:

Tuesday, Sep 20, 2011 07:21 ET

Jose Padilla and how American justice functions

By <http://www.salon.com/author/glenn_greenwald/index.html>Glenn Greenwald
http://www.salon.com/news/department_of_justice/?story=/opinion/greenwald/2011/09/20/padilla

(updated below)

The 
<http://www.salon.com/news/opinion/glenn_greenwald/2011/02/18/justice/index.html>story 
of Jose Padilla, continuing through the events of yesterday, 
expresses so much of the true nature of the War on Terror and 
especially America's justice system.  In 2002, the American citizen 
was arrested at Chicago's O'Hare Airport, publicly labeled by John 
Ashcroft as The Dirty Bomber, and then 
<http://glenngreenwald.blogspot.com/2006/10/bush-administrations-torture-of-us.html>imprisoned 
for the next three years on U.S. soil as an "enemy combatant" without 
charges of any kind, and denied all contact with the outside world, 
including even a lawyer.  During his lawless incarceration, he was 
kept not just in 
<http://www.nytimes.com/2006/12/04/us/04detain.html?>extreme solitary 
confinement but extreme sensory deprivation as well, and was 
<http://glenngreenwald.blogspot.com/2005/11/padilla-torture-just-when-you-thought.html>abused 
and tortured to the point of severe and probably permanent mental 
incapacity (Bush lawyers 
<http://www.salon.com/news/opinion/glenn_greenwald/2007/03/10/padilla/print.html>told 
a court that they were unable to produce videos of Padilla's 
interrogations because those videos were mysteriously and tragically "lost").

Needless to say, none of the government officials responsible for 
this abuse of a U.S. citizen on American soil has been held 
accountable in any way.  That's because President Obama decreed that 
Bush officials shall not be criminally investigated for War on Terror 
crimes, while his Justice Department 
<http://www.emptywheel.net/2011/07/21/obama-doj-doubles-down-on-presidents-ability-to-detain-us-citizens-with-no-charges/>vigorously 
defended John Yoo, Donald Rumsfeld and other responsible 
functionaries in civil suits brought by Padilla seeking damages for 
what was done to him.

As usual, the Obama DOJ 
<http://www.emptywheel.net/wp-content/uploads/2011/07/110718-Padilla-Amicus-Brief.pdf>cited 
national security imperatives and sweeping theories of presidential 
power to demand that Executive Branch officials be fully shielded 
from judicial scrutiny (i.e., shielded from the rule of law) for 
their illegal acts (the Obama DOJ: "Here, where Padilla's damage 
claims directly relate, inter alia, to the President's war powers, 
including whether and when a person captured in this country during 
an armed conflict can be held in military detention under the laws of 
war, it would be particularly inappropriate for this Court to 
unnecessarily reach the merits of the constitutional claims" 
(emphasis added)).  With 
<http://www.nytimes.com/2009/06/14/us/politics/14yoo.html>one rare 
exception, 
<http://articles.sfgate.com/2011-07-09/bay-area/29754369_1_john-yoo-jose-padilla-appeals-court>federal 
courts, as usual, 
<http://www.salon.com/news/opinion/glenn_greenwald/2011/02/18/justice/index.html>meekly 
complied.  Thus, a full-scale shield of immunity has been constructed 
around the high-level government officials who put Padilla in a 
hermetically sealed cage with no charges and then abused and tortured 
him for years.

The treatment Padilla has received in the justice system is, needless 
to say, the polar opposite of that enjoyed by these political 
elites.  Literally 
<http://query.nytimes.com/gst/fullpage.html?res=9D01E3DD1631F930A15752C1A9639C8B63>days 
before it was required to justify to the U.S. Supreme Court how it 
could imprison an American citizen for years without charges or 
access to a lawyer, the Bush administration suddenly indicted Padilla 
-- on charges unrelated to, and far less serious than, the accusation 
that he was A Dirty Bomber -- and then 
<http://tech.mit.edu/V126/N15/15long2.html>successfully convinced the 
Supreme Court to refuse to decide the legality of Padilla's 
imprisonment 
<http://www.nytimes.com/2005/12/18/national/nationalspecial3/18padilla.html>on 
the grounds of "mootness"  (he's no longer being held without charges 
so there's nothing to decide).

At Padilla's trial, the judge 
<http://jurist.law.pitt.edu/forumy/2007/05/anticlimactic-trial-of-jose-padilla.php>excluded 
all evidence of the abuse to which he was subjected and even admitted 
statements he made while in custody before he was 
Mirandized.  Unsurprisingly, Padilla was 
<http://edition.cnn.com/2007/US/08/16/padilla.verdict/index.html>convicted 
on charges of "supporting Islamic terrorism overseas" -- but not any 
actual Terrorist plots 
("<http://www.nytimes.com/2007/08/16/us/16cnd-padilla.html>The 
government's chief evidence was an application form that government 
prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda 
training camp in Afghanistan in 2000") -- and then sentenced to 17 
years in prison, all above and beyond the five years he was 
imprisoned with no due process.

Not content with what was done to Padilla, the Bush DOJ -- and then 
the Obama DOJ -- contested the sentence on appeal, insisting that it 
was too lenient; Padilla also appealed, arguing that the trial court 
made numerous errors in excluding his evidence while allowing the 
Government's.  Yesterday, a federal appeals panel of the 11th Circuit 
<http://www.ca11.uscourts.gov/opinions/ops/200810494.pdf>issued a 
ruling, by a 2-1 vote, rejecting each and every one of Padilla's 
arguments.  It then took the very unusual step of  vacating the 
17-year-sentence imposed by the trial court as too lenient and, in 
effect, ordered the trial judge to impose a substantially harsher prison term:

Padilla's sentence is substantively unreasonable because it does not 
adequately reflect his criminal history, does not adequately account 
for his risk of recidivism, was based partly on an impermissible 
comparison to sentences imposed in other terrorism cases, and was 
based in part on inappropriate factors . . . .

As the dissenting judge explained, this decision is extraordinary 
because trial judges -- not judges sitting afterward on appeal -- are 
the ones who hear all the evidence and thus have very wide discretion 
to determine the appropriate sentence.  But more so, in this case, a 
sentence less than the full maximum was warranted because "the trial 
judge correctly concluded that a sentence reduction is available to 
offenders who have been subjected to extraordinarily harsh conditions 
of pre-trial confinement."  About that point, the dissenting judge documented:

Padilla presented substantial, detailed, and compelling evidence 
about the inhumane, cruel, and physically, emotionally, and mentally 
painful conditions in which he had already been detained for a period 
of almost four years. For example, he presented evidence at 
sentencing of being kept in extreme isolation at he military brig in 
South Carolina where he was subjected to cruel interrogations, 
prolonged physical and mental pain, extreme environmental stresses, 
noise and temperature variations, and deprivation of sensory stimuli and sleep.

In sentencing Padilla, the trial judge accepted the facts of his 
confinement that had been presented both during the trial and at 
sentencing, which also included evidence about the impact on one's 
mental health of prolonged isolation and solitary confinement, all of 
which were properly taken into account in deciding how much more 
confinement should be imposed. None of these factual findings, nor 
the trial judge's consideration of them in fashioning Padilla's 
sentence, are challenged on appeal by the government or the majority.

Thus: American officials who are responsible for this "inhumane" and 
"cruel" abuse of detainees act with full impunity, as usual.  Those 
who are its victims are not merely denied all redress (though they 
are), and do not merely have the courthouse doors slammed in their 
faces in the name of secrecy, national security and presidential 
power (though they do), but they are also mercilessly punished to the 
fullest extent possible.

It should be said that part of what happened here is just the typical 
politicization of the judiciary, as the two-judge majority was 
comprised of a hard-core right-wing Reagan/Bush 41 appointee from 
Alabama (<http://www.ca11.uscourts.gov/about/judges/dubina.php>Joel 
Dubina), while the other was one of Bush 43's most controversial 
appointees, the former Alabama Attorney General who was filibustered 
by the Democrats and allowed onto the bench only by virtue of the 
"Gang of 14" compromise 
(<http://www.talkleft.com/story/2004/02/21/821/64795#005374>William 
Pryor).  Meanwhile, the dissenting judge was born in Mexico to Syrian 
parents and, after moving to Miami at the age of 6, became the first 
female judge (as well as the first Hispanic and Arab American judge) 
on the Florida Supreme Court (rising to Chief Justice), and was a 
Clinton appointee to the federal appeals court 
(<http://www.fcsw.net/halloffame/WHOFbios/barkett.htm>Rosemary 
Barkett); Barkett, incidentally, dissented from an 11th Circuit 
ruling denying a habeas petition to Troy Davis, the African-American 
death row inmate scheduled to be executed by the State of Georgia 
next week despite 
<http://www.huffingtonpost.com/2011/09/15/troy-davis-execution-william-sessions_n_963366.html>mountains 
of evidence showing his innocence.  So this episode highlights one of 
the few genuine differences that remain between the two parties that 
can truly impact people's lives: their judicial appointments.

But the overriding theme is what we have seen time and again, that 
which -- as it turns out -- is the subject of my 
<http://us.macmillan.com/withlibertyandjusticeforsome>book to be 
released next month: America is plagued by a two-tiered justice 
system in which political and financial elites enjoy virtually 
absolute immunity for even the most egregious of crimes, while 
ordinary Americans (and especially fully stigmatized ones like 
Padilla) are subject with few defenses to the world's largest and one 
of its most merciless systems of punishment.  Thus do Jose Padilla's 
lawless jailers and torturers walk free and prosper, while no 
punishment is sufficiently harsh for him.




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