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One of the clearest lessons put to posterity by the writers of classical antiquity is this: humankind constructs the state for its security and happiness, but most importantly, for the pursuit of justice. When those seized of political power in the state use it for the expansion of their own prerogatives at the cost of the rights of their citizens or as a tool with which to sustain their grasp on power against the challenges of other citizens, and particularly when they begin to twist the machinery of justice to the ends of their own political power, then the state is dangerously corrupted.
I am paraphrasing a fairly recent essay by Ernst-Wolfgang Böckenförde, the German constitutional theorist and Constitutional Court judge, in which he examined the process of internal decay and collapse of the German Democratic Republic from a constitutional perspective.
The Founding Fathers would have quickly recognized this thesis. In fact, it would have belonged to the basic classics education of the men who wrote the American Constitution and gave us a new order. They looked past the troubled history of Europe, with its divine-right monarchies and Enlightenment values reserved solely for the libraries and drawing rooms. They searched classical models and drew on the experience and principles of democratic society as it once flourished. And a commitment to the pursuit of justice freed from the fetters of political calculus was right at the very heart of the new state concept they launched.
The Battle to Spin Padilla
Almost as soon as the Padilla verdict was in, I was besieged by readers asking for instant analysis. I had been tracking the Padilla case for sometime, and was concerned about where it was headed, but it’s an extremely complex matter, and truth is that I was quite taken aback by most of the instant analysis that showed up in the media and blogosphere. Generally it seemed to break into two camps.
There was the “so, the administration was right all along,” camp. The Bush Justice Department has been vindicated by a Miami jury. For instance, consider the lede that the New York Times gave the story:
In a significant victory for the Bush administration, a federal jury found Jose Padilla guilty of terrorism conspiracy charges on Thursday after little more than a day of deliberation.
Now any time a prosecutor gets a conviction, he can put a notch on his holster and talk it up a bit. Fair enough. So these words can be justified in a sense. But the facts in this case are just too problematic to warrant the language that the Times and many other publications used. And then we have the words out of the Justice Department itself, gloating in triumph, and the right-wing echo chamber which saw in the verdict another opening for the personal adulation of the Great Leader, George W. Bush. As the Los Angeles Times observed:
In hailing the verdict yesterday, a White House spokesman thanked the jury for “upholding a core American principle of impartial justice for all.” It is a remarkable statement, since the administration did everything it could to keep Mr. Padilla away from a jury and deny him impartial justice.
On the other side, there were writers, especially on the libertarian left of the blogosphere, writing about “gross injustice” and holding Padilla up as some sort of martyr and hero. Indeed, in some corners there has been a juvenile tendency to heroize anyone who becomes a target of the Bush Administration. It reminds me of the words of a reviewer of the British movie “V for Vendetta” who noted that the audience began to cheer the acts of anti-state terrorism of the comic book protagonist, modeled on Guy Fawkes. “It’s the genius of the Bush Administration that four years into its war on terror, American audiences are cheering for the terrorists,” he wrote.
And another widely spread answer was that the conviction showed that the Bush Administration’s claims that the criminal justice system couldn’t be made to work for the likes of Padilla were wrong. That observation is certainly true, but it also fails to come to grips with the very real challenges and issues that are swirling around this case. More to the point: what sort of criminal justice system will we have if cases like this proceed?
The Threat of Politicized Justice
I first got a detailed look into the Padilla case in a meeting I had with a career prosecutor who is pretty well known as an “independent” defender of the administration. My friend had been invited, almost two years ago, to take a deep look inside of the Padilla case and provide an assessment to some senior administration figures who were fretting over what to do with a case that was rapidly turning into an embarrassment.
“I was shocked at what I saw,” my friend noted. “Because the Attorney General had leveled very heavy accusations at Padilla concerning plots for dirty bombs and the like, and there simply wasn’t any real evidence to back this up. They’ll either have to let him go, in which case the Justice Department is going to be horribly embarrassed, or they’ll gave to ginny up a case on lesser charges, some sort of conspiracy something.”
I came away from that meeting distressed at the attitude I had heard. What I had been told, to strip off the now cracked and smoky varnish, was that this was all about politics. The Attorney General had gone way out on a limb in the accusations he made. In fact, Ashcroft had done this. It had happened while he was in Moscow—and I was there at the same time, working on a deal, and remembering my amazement over the spectacle of a U.S. Attorney General making these sorts of accusations at a hastily convened Moscow press conference. It was simply bizarre.
So was the management of the Padilla case now going to be driven as a sort of defensive rear-guard action, designed to avoid a political embarrassment? That’s the concern I have had about this case from the time of my meeting with the prosecutor.
However, the case isn’t a simple one. Jose Padilla himself is not an appealing character. I wasn’t at the trial and didn’t follow it in great detail, but what I saw of the evidence convinces me that there was a close but fair basis upon which the prosecutors could have brought the case they did. Padilla was consorting with some “really bad people.” With people who wished to harm the United States and its people and who wanted to use Padilla as a tool to that end.
It doesn’t seem unreasonable for a prosecutor to have brought the charges that were brought. Nor does it seem unreasonable for a jury to find against Padilla on the conspiracy charge that was brought. I think those who are saying that the trial of Padilla was a gross miscarriage of justice are going way overboard.
This is not to say that I am happy with the way the Justice Department managed the case. From the outset it was handled in a way that undermines the public’s confidence in the integrity and fairness of our law enforcement system, and was, in important ways, simply stupid.
The attorney general’s dramatic press conference in Moscow, for instance, is now regularly acknowledged by Justice Department officials (off-the-record) as a colossal mistake. They justify it by saying that it provided proof of the Department’s zealous work to protect the country from terrorism. That is a suspiciously political calculus. An attorney general should not be concerned about the monthly fluctuation of public opinion polls. He should be focused on justice. And that press conference and the relentless hype that followed it obstructed the pursuit of justice in the Padilla case. It showed a failure to adhere to basic rules of prosecutorial ethics. And beyond that, it was simply unwise.
I’m very troubled by the remark of one juror in the case, who told the New York Times “that she had all but made up her mind before deliberations began.” The key problem with prosecutors who sell their case to the public through press conferences—as was done in this case with an almost unparalleled vengeance—is that they prejudice the jurors. That’s a point which defense counsel will likely test on appeal and perhaps in a motion for judgment notwithstanding the verdict.
Missed Opportunities, Dullard Tactics
But beyond this, the cases of Jose Padilla, John Walker Lindh and David Hicks—among a slew of others—presented a series of missed opportunities. If you have followed the histories of enduring empires of old, you know that people like Padilla, Lindh and Hicks have in the past been seized upon as special opportunities. America’s current counterterrorism effort is spectacularly unsuccessful in one essential area: penetration of the enemy camp. A truly proactive counterterrorism approach would recognize that naïve adventurers and misfits like Padilla, Lindh and Hicks present the perfect opportunity to get a look deep inside the enemy camp. They would be the perfect individuals to recruit and turn. And the great empires of old—the Romans, the Britons, the Russians to cite a few—excelled in doing exactly that.
But how do the Bush counterterrorism geniuses react when such a prize falls into their hands? They summon up press conferences and extol their success in the capture. That’s an act which in itself, makes the possible use of the captive as a double agent impossible.
It’s not coincidental that the counterterrorism effort has been such a stupendous failure in this area. There has been no serious effort to exploit the assets that are there and right before the government’s nose.
Instead, what is revealed as the priority tactic? Fear-mongering in the service of a domestic partisan political agenda.
The Lingering Question of Torture
Quite apart from the guilt or innocence of Jose Padilla, this case is marked by one other extremely troubling fact: the government-sponsored use of torture on an American citizen who had been neither charged nor convicted of any crime. Of course, the use of torture would have been forbidden even had he been convicted of a serious crime. That is the rule the Founding Fathers laid down.
Was it really torture? Yes. At this point there’s very little disagreement on this score among experts who have studied it. On the other side you will find only “experts” in the pay of the U.S. Government whose job it is to manufacture excuses for the inexcusable. Here’s a snippet from a recent interview of one of the examining psychiatrists, Dr. Angela Hegarty:
AMY GOODMAN: What was the effect of over three-and-a-half years of isolation on Jose Padilla?
DR. ANGELA HEGARTY: I think there’s two things, really. Number one, his family, more than anything, and his friends, who had a chance to see him by the time I spoke with them, said he was changed. There was something wrong. There was something very “weird” — was the word one of his siblings used — something weird about him. There was something not right. He was a different man. And the second thing was his absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like — perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened. So I think those would be the two main things.
Also he had developed, actually, a third thing. He had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were “unfair to the commander-in-chief,” quote/unquote.
And in fact, one of the things that happened that disturbed me particularly was when he saw his mother. He wanted her to contact President Bush to help him, help him out of his dilemma. He expected that the government might help him, if he was “good,” quote/unquote.
There is no mistaking these tactics as abuse or the misconduct of some rogue investigator. They reflect official Government policy, crafted at the top of the U.S. Government with the approval of President Bush. We know this from an affidavit that Admiral Jacoby filed in the case, and on which Georgetown Prof. Marty Lederman has written a definitive analysis. Lederman calls it the Jacoby memo a sort of “Rosetta stone” of Administration’s torture policy. I am persuaded completely by his analysis.
Important questions remain, therefore, concerning the mistreatment in detention of Jose Padilla. First, even as Padilla is convicted and sentenced, when will those who perpetrated crimes against him be prosecuted for their misdeeds? The two things are not comparable. Padilla was charged and has been convicted of complicity in a vaguely defined conspiracy, without his having taken any material step towards an act of terrorism. The Gonzales Justice Department will, characteristically, argue for a heavy sentence. The facts won’t justify that. On the other hand, the crime committed against Padilla is extremely serious, involving long term psychological damage. Justice calls out for a prosecution and a severe sentence in such a case.
Second, how is the court to take into account the three-year imprisonment and torture of Padilla in rendering sentence? The Gonzales Justice Department will certainly argue that no consideration should be given to the suffering and long-term debilitation suffered by Padilla in U.S. Government custody. That would be manifestly unjust. Clearly these points should be weighed in mitigation of his sentence.
It is a cliché to speak of new counterterrorism measures as “Orwellian,” perhaps, but there is no better way to describe them. Padilla was the subject of inhuman techniques—designed to break him as an independent and self-actuated human being and to turn him to the will of the Bush Administration. Winston was imprisoned in the Ministry of Love (the ministry responsible for human intelligence gathering) where he was accused of thought crimes. While there he passed by and later visited room 101, where the ministry used its most sophisticated techniques to break the will of those who were to be reprocessed. What happened in room 101 was different for every person who entered. The techniques were carefully measured to the psyche of the victim. They were designed to break him. One of the principal objects of this process, we learn, is to insure that the subject returns to loving Big Brother.
Reading accounts of the treatment of Padilla and the psychiatrist’s description of what remains today of the battered spirit of Jose Padilla, it is clear that the Bush Administration has fully availed itself of these concepts. The Jacoby Declaration makes clear that “breaking” the subject is in fact the object of the process. The psychiatrists’ report shows that Padilla was essentially brainwashed. He could not really even mount a defense to the charges against him because he loved George W. Bush and he found it physically impossible to oppose him.
And the charges brought against Padilla are “thought crimes.” He is accused of thinking bad thoughts about America and the Bush Administration.
As Adam Liptak observes in what is certainly the best analytical piece published on the Padilla case so far:
But the real innovation in Mr. Padilla’s case, some legal experts said yesterday, was more subtle than those dueling talking points suggested. The Justice Department’s strategy in the trial itself, using a seldom-tested conspiracy law and relatively thin evidence, cemented a new prosecutorial model in terrorism cases. The central charge against Mr. Padilla was that he conspired to murder, maim and kidnap people in a foreign country. The charge is a serious one, and it can carry a life sentence. But prosecutors needed to prove very little by way of concrete conduct to obtain a conviction under the law.
“There is no need to show any particular violent crime,” said Robert M. Chesney, a law professor at Wake Forest University and the author of a recent law review article on conspiracy charges in terrorism prosecutions. “You don’t have to specify the particular means used to carry out the crime.” Indeed, the strongest piece of evidence in Mr. Padilla’s case was what prosecutors said was an application form Mr. Padilla filled out to attend a training camp run by Al Qaeda in Afghanistan in 2000.
As the Bush Administration is conceptualizing and implementing this law, the fact that Padilla thought bad thoughts about the United States and its Government is enough to lock him up for life. There is no requirement that he have actually taken a material step towards a plot to actually do something bad.
And with this, yet again, the Bush Administration is lining its own policies up with tyrannical practices of the late sixteenth and early seventeenth centures that led ultimately to the Civil War and the legal revolution in England. The Court of Star Chamber regularly seized and tortured persons who were suspected of participating in Catholic plots against the monarchy. It was enough that the persons seized be proved to harbor sympathies with Catholic plotters who embraced terrorist methods. There was of course nothing delusional about these concerns. The plotters really existed. Moreover, they were heavily supported by hostile foreign powers, and they aimed to unsettle the country by assassinating the monarch, among other things. In the state security court of that era, there was no need to demonstrate that a person actually had taken a step to act on a plan—it was enough to show his sympathies and his entrance into a conspiracy.
The American Republic was founded upon a repudiation of this notion. But in this area again, the Bush Administration has worked with determination to undo three hundred years of legal history and to reinstate tyrannical practices of the past.
In the end this concept—of thought crime as a major tool for the enforcement of national security concerns—is the gravest issue to arise from the Padilla case. It needs to be monitored and offset through legislation that will resurrect the legal values and principles that existed before Bush’s wholesale onslaught against the Constitution began.
All of these things lead me to view the jury’s verdict in the Padilla case as an important development, but hardly the end of the case. Much remains to be done. Justice may, fairly meted out, involve punishment for Jose Padilla. But the time must come when his tormentors face justice as well.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Percentage increase in the annual number of polio cases in Pakistan since 2005:
A bowl of 4,000-year-old noodles was found in northwestern China; and a spokesman for the Chinese Academy of Sciences said that “this is the earliest empirical evidence of noodles ever found.”
A federal judge sentenced the journalist Barrett Brown to 63 months in prison for sharing a link to information stolen from the private-intelligence firm Stratfor by a hacker in 2011. “Good news!” Brown said in a statement. “They’re now going to send me to investigate the prison-industrial complex.”
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