09/21/07 – Andrew Patel – The Scott Horton Show

All right, my friends, welcome back to Anti-War Radio.
I'm your host, Scott Horton.
This is Chaos Radio 95.9 in Austin, Texas, and our first guest today is Andrew Patel.
He's the attorney representing former enemy combatant, now convicted felon, Jose Padilla.
Welcome to the show, Andrew.
Thank you.
Good to have you on today, and I have a list of questions we won't possibly be able to get through, but we'll see what we can do here.
All right.
Now, I guess most people know that, was it the end of July, is that right, that Padilla was convicted of conspiracy?
It was actually in August.
Was it in August?
Okay.
I wasn't sure how far back actually.
Well, let's go ahead and start right there with exactly the charge that he was convicted of.
You told Amy Goodman that, in fact, it wasn't even quite a conspiracy charge in the sense that we would normally think of it, that really he was convicted of conspiring to, at some point in the future, conspire to do something.
Is that right?
A conspiracy twice removed from an event?
Is that it?
Yeah, it's what the law refers to as a double in Kuwait crime.
The actual charges, and let me set that out and try to explain that, because the first one is conspiracy to murder, maim, or kidnap someone overseas.
And the second count was to conspiracy to provide material support to terrorists.
And the third count was actual providing of material support.
The government's theory was that Mr. Padilla was providing himself.
But let's go back to that first count, which gets a little complicated.
The crime under the United States Code is conspiracy to commit certain designated crimes.
And one of the designated crimes is the conspiracy to murder, maim, or kidnap.
So you have a conspiracy to conspire.
Now, a conspiracy in its simplest form is an agreement.
That's what's being punished.
Not the act, but an agreement.
And traditionally, what you need is for someone to be convicted of a conspiracy is proof of an agreement and some action, which need not be criminal, in furtherance of the conspiracy.
The example I like to use, if you were sitting in my office right now, and you and I agreed to rob the bank across the street, and you went down to see where the bank actually was.
Well, there's nothing unlawful about going to look at a building.
But if we were arrested at that point, we would not be guilty of bank robbery.
We probably wouldn't even be guilty of attempted bank robbery.
But because an act had been performed in furtherance of our agreement, we could be found guilty of conspiring to rob the bank.
Okay.
So along with that analogy, then, if, say, for example, we just both knew each other from way back, and we both knew that we were criminals, and I said to you, so in a couple of weeks, let's get together and figure out a way to make some money.
Is that conspiracy to have a conspiracy to rob a bank?
No, because there's no agreement.
It has to be an agreement at some point.
That's the critical element.
So essentially, in the double inquiry crime, you're agreeing to agree, but there's got to be some current agreement.
But this is what they convicted your client of, though?
Yes.
Right.
Forgive me if I jump around here a little bit.
I'm not exactly too sure how to make one big narrative out of this thing and keep it in order.
But it occurred to me when I first read the indictment, when the case was about to go to the Supreme Court, and so they hurried up and indicted him to take away your standing to sue.
It occurred to me upon my first read of the indictment, in fact, I think I only read it once or twice back then, but it seemed like they had just sort of tacked your client, Jose Padilla, onto the end of an indictment of some other guy's.
Was that kind of a correct interpretation, you think?
I think that is a valid interpretation.
I think, depending upon who you were in the room, so to speak, I think there were two co-defendants, a gentleman named Hassoon and a gentleman named Kefa Jayusi.
Mr. Hassoon was actually arrested on immigration charges about the same time that Mr. Padilla had been arrested on the material witness warrant in Chicago.
Mr. Hassoon was arrested in Florida.
In 2004, they brought criminal charges against Mr. Hassoon, and the case was proceeding as these cases do.
What happened then is, considerably after that, Mr. Jayusi was added to Mr. Hassoon's indictment.
Now Mr. Jayusi's lawyer, if he were on the phone with us, would tell you that at that point the government was looking for a potential exit strategy from the enemy combatant litigation that was going on with Padilla, and they needed to slow down Mr. Hassoon's prosecution, and so they brought in Mr. Jayusi.
Oh, that's interesting.
That's what Mr. Jayusi's attorney would say if he was on the phone with us, and then when the government was, as you accurately put, did not want to go back to the Supreme Court for a second time, Mr. Padilla was brought into the indictment.
It seemed interesting that, wasn't the FBI monitoring these other two, Hassoon and Jayusi, for years and years and years?
Yes.
I mean, was there anything in the information about them that said that now is the time that we have to move on these guys to protect the American people from them, or do you have any idea?
Well, actually, the jury made a finding that Mr. Jayusi had left the conspiracy years before.
Oh, the jury found that?
The jury found that.
But Padilla was still a member of that conspiracy, they found?
Yes.
But his participation continued on longer than Mr. Jayusi's.
Now, if we remember back to 2002, the then Attorney General, John Ashcroft, announced from Moscow that they had arrested a terrorist who was plotting to set off a radioactive dirty bomb that is not a fission bomb, but a conventional bomb laced with radioactive ingredients, and now that wasn't part of the indictment against your client, was it?
No.
The interesting thing about that announcement is Mr. Padilla had already been in custody for about a month at that point.
He was originally arrested on a warrant issued by a judge in New York, a material witness warrant, and arrested on that warrant in early May, May 8th of 2002.
Attorney General Ashcroft announced, the announcement was actually on June 9th of 2002, basically a month later.
Excuse me, it may have been May 15th when Mr. Padilla was originally arrested.
But even so, it was earlier, about three weeks earlier.
So none of those charges were in the indictment.
Now, he had already been turned over to the military for a month?
No.
The Ashcroft announcement was essentially the announcement of his being turned over to the military.
Oh, I see.
I remember reading an article where there was an FBI agent named Russell Fincher, who I believe was the arresting officer in Chicago when Padilla landed at the airport.
Is that right?
That is correct.
And I read an article where he said that, well, I'm sorry, I don't have it right here in front of me for the exact quote, but I believe I could paraphrase it pretty accurately as saying that he didn't think Padilla was really a danger.
He wanted to use Padilla as an informant.
He wanted to flip him.
And use him as an informant for a sting operation for a dirty bomb.
And then Padilla refused.
And then they went ahead and accused him of the thing that they were trying to recruit him to do.
I mean, not that they were trying to recruit him to set off an actual bomb, but to do a sting operation and bring others in on a plot and so forth.
I have not seen that quote.
Oh, really?
Are you kidding?
They definitely wanted to get information from Mr. Padilla.
I have the quote right here.
I'm just clicking on it right now.
I didn't want to arrest him, said Special Agent Russell Fincher.
I needed his cooperation.
He said the agency had hoped Padilla could provide information about an Al-Qaeda plot to detonate a radioactive device or so-called dirty bomb on U.S. soil and needed an insider.
Right.
That's correct.
It almost sounds like they were the ones who made up the plot because they were trying to get him to take part in it to bust others.
The reason for the hemming and hawing is there have been FBI sting operations.
The government had some information about something going on and they were hoping to get additional information and find out about other participants from Mr. Padilla.
That's what a material witness warrant is all about.
It's not that they were going to send him out to gather people to set off an attack of some sort.
This was not a sting operation that they were anticipating getting him involved with.
It wasn't that they wanted him to actually be part of a plot, just to provide information on one that may already exist.
Exactly.
I see.
Yeah.
I don't want to overstate it and misunderstand it.
When he was turned over to the military, because the way I remember it, the judge said, okay, we'll bring this material witness before me, and they told him, sorry, judge, we already turned him over to Don Rumsfeld, right?
No.
No?
No.
It's a little bit worse than that.
Oh, good.
Let's hear it.
What happened is, nothing happens in a vacuum.
After 9-11, there were many material witness warrants issued.
There was another judge in the Southern District of New York who had held that it was not appropriate to detain people who had been arrested under material witness warrants under the bail statute.
And there had been a motion filed to have Mr. Padilla released on bail under this other judge's decision.
This motion was up for essentially a hearing before Judge McCasey.
It was a judge that Mr. Padilla's case was pending before New York, and to short circuit any possibility that he might be released on bail.
The president issued this order, and under that order, the government asked.
The only thing Judge McCasey had to do with that is they asked that the material witness warrant be vacated, and it was, and Mr. Padilla was turned over to military custody.
So essentially, rather than run the risk of having Judge McCasey say, yes, Mr. Padilla is entitled to bail, they whisked him off to military custody.
How long was he held in military custody?
Three and a half years.
And how long was he in there before you and his other lawyers were allowed to see him?
About two plus years.
That's an interesting tale unto itself.
The government had adamantly opposed Mr. Padilla having access to his attorneys.
Is it right that it's George Bush's new pick for attorney general was the one who finally gave you the order?
Judge McCasey, who has been nominated to be the attorney general, was the judge that we were doing litigation before here in New York, and Judge McCasey, who handed down a series of decisions.
What he found is that the president did have the authority to order the military detention of Mr. Padilla, but he also found that Mr. Padilla had the right to have access to his attorneys to perfect his habeas petition seeking his release.
That did not make the government happy.
There were actually a series of, I believe, three decisions in which Judge McCasey stuck to his guns, shall we say, about Mr. Padilla having the right to have access to counsel.
Those decisions were appealed to the Second Circuit.
What I'm getting to is how we actually got access to him, or he accessed us, to be more accurate.
The briefing schedule, the first time the case went to the Supreme Court, was abbreviated.
It was done on an expedited basis.
When your case goes to the Supreme Court, the Supreme Court doesn't have to take cases.
You do what's called a cert petition asking the court to consider it.
The government gets to respond and there's a reply.
The government had actually sought Supreme Court review of the Second Circuit's decision saying that the president did not have the authority to hold Mr. Padilla militarily.
We said that, A, you shouldn't take this, but if you do take it, you should also take these due process issues, such as his right to have access to his attorney.
The government filed their brief, their cert petition.
We responded.
Their reply was actually due at three o'clock on, I believe it was February 14th of 2000, I guess from then up to 2004.
I was sitting in my office at one o'clock and I got a telephone call from a JAG officer that is a military lawyer saying that they had decided to give us access to Mr. Padilla and I should call the liaison officer who is a captain in the Navy, which is a senior officer.
This is the kind of thing that seems to happen to you over and over again in this case.
The court is about to rule in your favor and then they go ahead and give in and take your standing to win that particular argument away from you.
It's really kind of amusing because in this case, I get this call at one o'clock and the Department of Defense holds a press conference saying that they are going to give Padilla access to his lawyers.
At three o'clock, they filed a brief telling the court that they don't have to worry about this due process stuff because they are giving Padilla access to his lawyers and they cite to the web link of the transcript of the press conference that had been held one hour before the brief was filed.
But the answer is that a recurring pattern?
Oh, yes.
And so to be clear, what was going to happen was you were going to get the judge to rule not just on you getting a chance to see him, but on a couple of other things too.
And by taking away your standing on the first one, the other issues were also removed from the court.
No, at that point we were in the Supreme Court and what it did is it focused, that's right, we didn't get access to Mr. Padilla until the case was pending in the Supreme Court.
I don't know what I was thinking that they would have given in at any point before that.
Well, so the issues that went up to the Supreme Court the first time were does the president have the authority to order the military detention of an American citizen who's seized on American soil?
And secondly, was the jurisdiction, that is, was the case properly brought in New York or should it have been brought in South Carolina where he was held?
Right.
That's how the Supreme Court ducked the case the first time, right?
Saying it was filed in the wrong court?
That's exactly right.
He asked me a couple of days after the decision what I thought it meant and I said, it means you all come back next year.
And that's exactly what happened.
And when we went back the second time, the only issue was the presidential authority issue, which of course the government avoided the court reaching that decision by filing an indictment.
The government obviously had some concerns that the Supreme Court was not going to rule in their favor.
And if you read through the opinions that were coming down at that time, it seemed fairly clear that they were not going to win.
And when the Supreme Court decides not to take the case, and they did not take the case the second time, it is not uncommon for one of the judges to write a dissenting opinion from the denial of cert, explaining why they thought the case was important or why the court should have taken the case.
In this case, not only was there a dissent that is from the denial of cert, but there was a concurrence.
And the Supreme Court's colors that I've spoken to, no one's ever seen that before.
That is Justice Kennedy, joined by the new Chief Justice, Justice Roberts, and Justice Breyer, issued an opinion essentially explaining why they were not taking the case for the second time.
And essentially what Justice Kennedy said is, we are hesitant to take a case that will determine the limits of the power of the most powerful office on the planet unless we have to.
And since part of the relief that we had been seeking was criminal process, and that relief had now been received, they exercised judicial restraint.
But they made it quite clear, actually explicitly clear, that they expected Mr. Padilla to receive all the rights that any criminal defendant charged with any crime in the United States would receive.
Let me ask you this, and I understand that you're in the middle of an appeal and you may not be able to answer some of these questions, but I have not been able to find anything that says Jose Padilla ever left Egypt and went to Afghanistan other than the testimony of Khalid Sheikh Mohammed, Abu Zubaydah, and Binyan Mohammed, and they were all three tortured.
So is there any evidence besides tortured accusations that he ever even went to Afghanistan?
That he went to Afghanistan is an inference.
That he went to Pakistan is a clearly established fact, in that he obtained a new passport in Pakistan, in Karachi.
And now, what is the state's so-called evidence that he went to Afghanistan?
Just the application form?
Yes.
That's all they have.
Okay.
Now, if I remember right from the trial, and I've been reading Warren Ritchie in the Christian Science Monitor, when the state's witness got on the stand in the trial to confirm for the government that, yes, this is the kind of application form you would fill out when joining the Mujahideen warriors or what have you, that the state's witness himself said that after he filled out an application like that, he was then asked whether he wanted to join or not.
So if you could take that as evidence that it was definitely Padilla who filled it out, if you accepted that, if you accepted that, it proved that he was in Afghanistan.
Stop right there.
We have a lot of problems with the assumption that he filled it out.
Right.
Well, let's get back to that, because I want to, let's go ahead and take the assumption for the moment.
The state's own witness said that even if he did fill it out, it still doesn't necessarily mean he joined any terrorist group at all.
Correct?
Correct.
Okay, now let's go back to whether he ever even put his hands on that thing.
Well, his fingerprints are on the document.
So are, I think there are more than 20 other fingerprints that are identifiable.
That is, they're called fingerprints of value, that they could be identified.
The form is filled out with at least two different inks and at least two different handwritings.
When you just look at the form, it's publicly available.
There's a date on the first page and a date on the last page.
And the United States, when we write an abbreviation, if we were to write an abbreviation of today's date, it would be 9-21-07.
In Europe and the Middle East, actually in most of the world, they would write 27-9-07.
And in Europe, when you write a 7, we just write a 7, but it is common for there to be a bar through the 7, so that it's clear that it's not a 2.
If you look at the dates on this form, one is the American style date, that is 9-21-07, one is European style, 21-9-07, and both dates have the 7, one has the slash through it, one does not.
So it's very clear that not only do you have two different handwritings, but two different cultures.
And if you're going to ask me when and where this form was filled out, no one knows.
And did they ever offer evidence of the state attempt to prove where and when it was filled out at all?
No.
Or they just said, look at the date, it's right on there.
Yep.
Now, what about the fingerprints?
Are the fingerprints all through this document?
Nope.
They're on the front page and the back page.
They're not on any of the internal pages at all.
So just the outside pages of the front and the back?
Correct.
So at some point he was handed it for a moment?
Correct.
And do you suspect that it was just handed to him while he was sitting in the brick at some point?
You know, it's not my job to speculate on things like that.
Okay, that's fair enough.
And now you're suing, not just appealing the case, but you're also suing the government for torturing your client, is that right?
There has been a civil suit brought on Mr. Padilla's behalf.
But not by you?
No.
I mean, I've worked with those attorneys, but I'm not part of that action.
I see.
Is it your opinion that your client was tortured?
The answer to that question is yes, and let me explain.
There is a common misconception that when people hear the word torture, they tend to think of, you know, a dungeon from the Spanish Inquisition.
Right.
Iron maidens and thumb screws.
Exactly.
And if you limit your definition of torture to that, you're both phenomenally out of date and incorrect.
But that kind of abuse did not happen.
But what psychologists and social scientists have found is that the most damaging kind of torture is isolation.
And very few people on this planet have been isolated to the extent and for the duration that Mr. Padilla was isolated.
Left on an entire cell block all by himself for years.
Correct.
And in fact, the pictures I've seen where they're, you know, bringing him from one place to another, the guards are actually dragging him by his chains.
They don't even so much as have a hand on his shoulder.
They actually don't touch him.
His feet are chained together.
His hands are not only handcuffed, but actually chained to his body.
And he's wearing goggles that block out his vision and headphones that block out any sound.
That's how they transported him to the dentist.
And now you attempted to get the judge to rule that he was no longer even mentally fit enough to participate in his own defense before this trial.
Is that right?
That's correct.
And did you have expert witnesses who had examined him and testified to that effect?
Yes.
And what was it that they said exactly?
They said that he was not competent to work with counsel at this point.
One of our experts was actually concerned about whether he would actually be able to recover to the point where he would be able to assist counsel.
Well now, during the trial, because the judge obviously ruled against you and the trial was held, was he able to participate in his own defense?
It really would not be appropriate for me to comment on an issue that's going to be on appeal.
I understand.
And now, another funny thing about this, and I'm sorry, I know I have to let you go here real quick.
Just a couple more questions.
It's the case, isn't it, that his military detention was not an issue at the trial at all?
It was completely omitted from this whole court system.
Let me put it to you this way.
The entire issue of his military detention and that which allegedly caused his military detention was not before this jury at all.
Oh, right.
No mention of the dirty bomb or the possible departments.
Very interesting, and I guess we can just wrap up this interview.
I know you have to go, but I just wanted to paraphrase the former Deputy Secretary of Defense who at one time was basically the man in charge of holding your client.
He told Vanity Fair magazine that there wasn't a plot beyond some fairly loose talk.
That was the guy who was holding your client.
Mr. Wolfowitz, as I recall.
One could argue that he was actually stretching the point.
Not even fairly loose talk, huh?
Mm-hmm.
And to wrap up, this will be the last point here.
Again, Andrew Patel, Jose Padilla's lawyer, really appreciate your time on the show today.
In all the evidence presented at trial, all the transcripts of the tapped telephone calls with the other two gentlemen and so forth, they really didn't have anything where Padilla was conspiring to do anything to anyone, did they?
I would certainly say no.
Not a thing.
He went abroad to study Islam and to learn Arabic.
That can get you a lot of trouble these days.
And now, I'm sure that you attempted to object when the prosecution wanted to play a giant big screen video of Osama bin Laden for the jury, didn't you?
Actually, the judge directed the jury that they could not consider that piece of evidence against Mr. Padilla at all.
But he let the state show it to him anyway.
Yes, she did.
Nice.
Oh, pardon me.
It was a female judge, didn't it?
Okay, listen, I'll let you go.
I really appreciate your time today, everybody.
Andrew Patel, he's the attorney representing Jose Padilla.
Thanks.
Thank you.