All right, so welcome back.
It's anti-war radio.
As you know, Jacob Hornberger is the founder and the president of the Future of Freedom Foundation.
As you may know, he writes a great blog there at fff.org/blog.
And he's a regular guest on this show for a very good reason.
Welcome back, Jacob.
How are you doing?
Doing fine.
Nice to be back, Scott.
I'm very happy to have you here, although what I want to talk with you about is a pretty infuriating subject, if you ask me, and that is the trials and tribulations of Jose Padilla and really not so much him, but mostly the implications of what they've done to him.
I guess maybe in equal measure these things anger me, but maybe to start, you could remind the people who is Jose Padilla and what mess is he in and how he got there?
Yeah, he's a guy that was accused of being a terrorist and was ultimately convicted of terrorist-related acts supporting al-Qaeda or supporting terrorism.
But the significance of his case is, I consider it quite possibly the most important criminal case in our lifetime because of the implications that are involved in that case.
Now, when the man was being held, they took him into custody not as a criminal defendant, which is the traditional way we handle terrorism cases.
It's a violation of the criminal code, the U.S.
Criminal Code, the federal courts, they have terrorism cases.
That's the way terrorism has always been handled, like any other criminal offense.
And after 9-11, President Bush said, well, I'm going to now decree that I have an additional option that I can treat people either as criminal defendants or I can treat them as unlawful enemy combatants.
And that included Americans because Jose Padilla was an American, is an American.
So they took him into custody, they put him in a military dungeon for three years, perfectly isolated him so that he couldn't talk or see anybody with the intent of causing him mental damage.
And so they tortured him in that way and they tried to deprive him of even having a lawyer.
That didn't work out.
And so finally, Padilla's lawyers filed a petition for writ of habeas corpus and the case works its way up to appeal and the appellate court upholds this designation.
They uphold the President's power to do this to Americans now, without a constitutional amendment, without an act of Congress, nothing.
Just emergency power like the dictators do in the Middle East.
And at that moment, the Justice Department and the military cut a deal where they shifted him back to criminal defendant status after telling the courts that, oh no, national security is at stake.
And the reason they did that was to keep that appellate court decision intact.
They were afraid the Supreme Court might overrule it.
So the state of the law now, Scott, is what they have done to Padilla, put him in a military dungeon three and a half years and they could have done it indefinitely.
That now applies to all Americans.
That's the President and the military now have that power over the American people.
Well, and the Obama administration has bent over backwards to use the secrecy doctrine, I guess maybe among others, in order to keep any civil cases from seeing the light of day in the federal court system.
Because after all, there are still some laws that say it's a crime to torture somebody.
Well, that's right.
And that you can be held civilly liable as well, I guess.
Yeah, I mean, if they close the courthouse doors to anybody who's been tortured by U.S. officials, including Americans, then what resort do people have at that point?
And you're right, they used the state secrets doctrine, which was a secret doctrine.
Even that wasn't passed by Congress.
And in fact, the case that it was created turned out to be a fraudulent case brought by the government.
The government was claiming that it involved national security, and so the court said, well, we've got to shut everything down now, because this is national security.
And many, many years later, somebody got a Freedom of Information Act or something, and they discovered that it didn't involve national security at all.
It was a total case of gross negligence on the part of the government, and they were using national security and state secrets to cover it up.
So the state secrets doctrine was born out of fraud.
And you're right, somebody brings a lawsuit, and Padilla brought a lawsuit, and the first thing the government does is state secrets your honor, national security, and the federal judge starts quivering and quaking and bangs his gavel down and says, case dismissed, and runs back to his chambers.
Well now, I want to make sure I narrow something down here and understand you right.
Because you say that the Bush administration basically ducked a Supreme Court decision on whether they could do this to an American citizen, and went ahead and indicted him in federal court, and we can talk about that trial in a second here, but by doing so, they ducked a Supreme Court verdict on that, but now, I guess Congress is about to pass an authorization that would mandate that all terrorism cases be turned over to the military.
Is that what you're saying is now the permanent law that makes it apply to us?
Or you're saying it has applied to all of us ever since they were able to get away with holding him for a while before indicting him in a federal court?
The latter.
Now, obviously, it's only a federal court of appeals decision.
I'm not sure, I think it was the second circuit, or the fourth circuit, I'm not sure.
So, it's not technically a decision that applies nationally like the Supreme Court decision would.
However, in an emergency, I mean, this is when these powers get exercised.
Right now, they're latent.
You don't see anybody being rounded up, you don't see government critics being jailed, taken into custody by the military.
The reason that they were willing to surrender Padilla to the civil authorities to keep that decision intact.
Now, they don't admit this, of course, but then again, they don't have any explanation as to why they quickly shifted him over to the civil court system, but by leaving that decision intact, let's say you have another terrorist attack, a big one, like a dirty bomb or something.
Well, they immediately start rounding people up, especially the government critics, the dissidents.
I mean, that's what they do in these emergencies.
And they tell, when anybody tries to file a writ of habeas corpus, they say, Your Honor, we have this authority, and here's Padilla versus the United States, the Court of Appeals, and every district judge is going to go along with that decision.
And he's going to say, well, if you don't like it, appeal it through the Court of Appeals, and then to the Supreme Court.
Well, that takes about a year, minimum.
So, in that period of a year or more, they can do anything they want to Americans, the dissidents, the critics, they can put them in concentration camps like they did to the Japanese Americans in World War II, they can round up government critics like they did in World War I, and they got a whole year to torture and do whatever they want during that period of time.
Which brings us back to the case of Jose Padilla, because they did torture this man just about out of his mind, or maybe more.
It's likely that he's been permanently damaged, and they acquired this technique from the North Korean Communists.
The name it has acquired is touchless torture, where they don't, you know, pull your fingernails out, and they don't use the thumb and screw and so forth, the rack.
But instead, the North Korean Communists learned how to torture somebody just mentally, and it's called sensory deprivation, that you put somebody in just total isolation where you cannot see or communicate with any other human being.
And, in fact, total darkness is a nice way to deal with this, where a person doesn't know what time it is, he never goes outdoors, he's in a tiny little cell, day after day after day, month after month, it extends into years, and they've confirmed the best guy on this is Alfred McCoy, people can Google him, he's written some great stuff on this, and they've confirmed that what happens to the mind is, it just goes crazy, and inflicts permanent mental damage, but they can sit back and hold up their arms, the government officials, and say, oh, we didn't do anything, we never touched him, yeah, we put him in isolation, but big deal.
Well, and his lawyers say they gave him all kinds of psychotropic drugs, and who knows what, too.
All right, well, hold it right there, it's Jacob Hornberger, everybody, fff.org, fff.org/blog, and we'll be right back.
All right, y'all, welcome back, it's Anti-War Radio, I'm Scott Horton, I'm talking with Jacob Hornberger, founder and president of the Future Freedom Foundation, we're speaking about the case of Jose Padilla, a very recent court decision, a very important court decision on his specific case that we have to get to, that's really the occasion for this interview, but first I wanted to go back about what happened to this guy in the first place.
I actually saw Jacob recently, while doing a little bit of research, I stumbled upon an article at Counterpunch that noted that the initial accusations against Padilla that accused him of plotting to detonate a radioactive dirty bomb were debuted, and I'll note, by John Ashcroft from Red Square in Moscow, when he announced he was turning him over to the military, but anyway, this whole thing happened right on the heels of whistleblower Colleen Rowley's letter to the Senate about what happened with her investigation and her team's investigation of Zacharias Moussaoui in August of 2001 at the Minneapolis office, and she was later time whistleblower of the year, and all these things, and just like when Abu Ghraib broke out, they came up with another orange alert, some kind of scary thing.
That seemed to be the origin of a lot of the hoopla about Jose Padilla, and of course as I think you mentioned, the dirty bomb charges had nothing to do with his indictment.
The indictment, the trial down there in Miami, after he finally did see a civilian court, was simply, you know, they made a case that he spoke in code about soccer, and planned through a guy that knew a guy who knew a guy to send some money to Chechnya or something.
And no mention of a plot to bomb apartment buildings, no mention of the dirty bomb plot that we now know they tortured out of Binyam Mohamed by slicing his parts with razor blades until he would come up with something about a nuclear plot, which ended up including poor Jose Padilla after this guy was tortured into bearing false witness against him.
And then, well yeah, they eventually as you said went ahead and after letting the CIA torture him in military custody down there in South Carolina for years on end, and driving the man out of his mind, they went ahead and indicted him and prosecuted him on these bogus charges and put him in prison for 17 years.
Now what?
Well now they're trying to increase it.
I really did not keep up with the trial or what he got convicted of.
My position was mostly focused on the process.
That this is what they should have done in the first place.
You believe that a person's committed a crime, then bring a grand jury indictment, follow our constitutional system, and get him convicted if you can prove his guilt.
Well I guess it's just sort of a parenthesis then, a minor detail that the FBI said that they thought from the beginning that he was not really a threat.
They were trying to flip him and turn him into an undercover informant, and when he refused they gave him the Randy Weaver treatment.
Well that's their general motive.
I mean they try to get people to become informants and sing like a canary and so forth, and when they don't they go after him viciously.
And now he got a 17 year sentence and he appealed, Padilla appealed and one of the grounds for his appeals, look what they've done to me.
I mean if there was ever a case for a dismissal of an indictment based on outrageous conduct of the government, this was it.
I mean taking an American, throwing him into a military dungeon, I mean that's what goes on in Iran, that's what goes on in Egypt and Jordan and Burma and these other U.S., some of these U.S. supported dictatorships.
But it doesn't go on here, but the court rejected his appeal, but the government cross appealed and said that the sentence was too lenient.
And the court of appeals just ruled that yeah, it's got to be remanded for further consideration in terms of giving the man a higher sentence than the 17 years.
Now I don't even know whether they gave him credit for the three and a half years that they held him in that military dungeon.
But in any event, the court of appeals has ordered that the case be sent back to the district court for considering a higher than the 17 year sentence.
Yeah, well you know part of this too, I remember from back when all this was happening was the lack of any pattern of reason behind who was treated what way.
I mean Jose Padilla was arrested by civilian FBI agents in coats or parkas at O'Hare airport here on U.S. soil, an American citizen.
And he went over to Don Rumsfeld's custody.
Then John Walker Lynn was arrested on the battlefield, sort of, kind of, in Afghanistan and he got a civilian deal and a plea bargain.
Then Yasser Hamdi was an American citizen born in this country and they let him go with $50 in time served and sent him back to Saudi Arabia.
And there never did seem to be any rhyme or reason other than maybe who was winning particular arguments in the White House between George Tenet and John Ashcroft and Don Rumsfeld over who gets to kidnap and brutalize who.
Well that's the thing, there's an old adage in the law that we all are familiar with, that equal treatment under law, or in a philosophical, political sense, we call it the rule of law.
And the rule of law doesn't mean that, hey, you're supposed to obey the law.
The rule of law says that people's conduct shall be determined by a well-established law that's passed in advance so people can adjust their conduct.
So here you have a process that's been set up by our system, the Constitution, that says if you're accused of a crime the government has to go through all of these obstacles before they put you in jail.
You know, a grand jury indictment, a trial, a trial by jury, right to cross-examine witnesses, all the stuff we're accustomed to.
What's amazing about this is that the government now has acquired this optional power and it manifests itself the way you described.
They say, well, if we want to send this guy down the criminal defendant route, we'll do it.
But if we want to send him down the kangaroo tribunal route, the military route, we'll do that too.
So they now have this option.
And the second option, the military option, is the exact same power that exists in Egypt.
You know, where the protesters were saying to Mubarak, you know, release that power, release that power.
That's one of the powers they were asking Mubarak to release, the power to just seize a person as a terrorist or a drug dealer, take him over into military custody, torture him, detain him for the rest of his life.
That power now exists in this, what purports to be a free country.
It's an option on the part of the government.
That's back in force now in Egypt too, since they sacked the Israeli embassy at American insistence.
The same Americans who were trying to replace Mubarak with Suleiman, the guy who arranged the torture for us.
Well, and the irony is that the power is in effect.
That, you know, people thought they got rid of Mubarak, they'd get rid of their problem.
They don't understand that this is a military dictatorship.
And the dictatorship has already announced that it is in place permanently.
People can build their government over it, but that the permanent military industrial, military commercial complex in Egypt is a permanent and they have announced that this emergency power that now exists in both countries, the U.S. and Egypt, will not be lifted.
And it applies to both drug cases and terrorism cases.
The power to go seize a citizen, cart him away to a dungeon, torture him, hold him for the rest of his life.
The military dictatorship in Egypt's not releasing it.
The regime here in the United States is not going to lift it either.
Well, and now what about the new authorizations working through Congress?
They want to replace the original authorization to use military force against those who attacked us on September 11th to a much wider definition that, from what I can understand, I think it was someone from the ACLU said on the show, that this would basically legalize the illegal Libya war, for example, that the president would have authority under this kind of overarching law to start any number of smaller wars.
And also I guess it also includes supposedly just this kind of thing, retroactively legalizing this whole illegal regime of kidnapping and torture that's been going on for the last 10 years that we've been talking about here.
Right.
It places the official approval of Congress legislative enactment, which is, by the way, the way Mubarak got his emergency powers, unlike Bush who just acquired them or decreed them.
It essentially grants legislative approval of all of these emergency measures.
How long does this emergency go on?
Egypt's went on for 30 years or has it gone on for 30 years.
Ours has gone on for more than 10 years.
And all they tell us is, hey, we can't give you a date when we can let go of these emergency powers.
They just extended the Patriot Act.
As you point out, they're now extended, formalizing this whole world, global war on terrorism where the whole globe is a war and they can kidnap and torture people anywhere, including here in the United States.
It's incredible, Scott.
I mean, things just keep going from bad to worse with these people.
Well, and I think Obama learned the lesson from Bush's scandal that, you know, it's better to just use droids and slaughter people with hellfire missiles from the air rather than kidnapping them.
And then you have to figure out what to do with them.
Well, yeah.
And, you know, as you know, they're trying to assassinate an American overseas.
I mean, I just I just find this so incredible that this is going on in a country that, when I was a kid, I was taught that, you know, torture was done by communists and Nazis and so was assassination.
It's still shocking to me.
Yeah.
All right.
Well, that's it.
We're all out of time.
But you're right.
Me too.
Jacob Hornberger, FFF.org.
Thanks, Jacob.
Thank you.
Bye-bye, Scott.
