Warren Richey, reporter for the Christian Science Monitor discusses the Jose Padilla case, Padilla’s $1.00 lawsuit against the Government, the government’s claim that none of his ‘clearly established rights’ were violated, and the damage to Padilla’s psyche as the result of the torture he suffered at the hands of the U.S. military.
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All right, folks, I'd like to welcome back to Antiwar Radio from the Christian Science Monitor, Warren Ritchie.
Welcome to the show, sir.
Yeah, thank you.
Good to talk to you again.
Warren, how are you?
It's good to be with you.
I'm good.
I want to encourage everybody to just Google Warren Ritchie and Padilla, and there's tons of articles to catch up on this case.
Help me understand this and make sure I have this right, Warren.
Jose Padilla, who was detained as an enemy combatant by the military for a period of, what, three years, has filed a civil suit against the government for turning him over to the military and so forth.
And the Justice Department has responded with a brief saying that no clearly established rights of Jose Padilla's were violated when he was turned over to the U.S. military by the Justice Department.
Is that right?
That's correct.
Yeah.
And so what does that mean, clearly established rights?
I'm always wary when these people start using all these adjectives before basic words like rights that I understand.
The issue here is, just to sort of back up a little bit, Padilla was in a trial over the summer and was convicted.
This was a terror conspiracy trial based on conduct that happened pre-9-11.
And so he was convicted in that trial, and he's awaiting sentencing, and there will probably be an appeal in that case as well.
And so that's one thing that's happened.
To get to that criminal trial, he had to be moved out of his military detention.
He was held for three years and seven months in military detention and questioned.
And the result of that questioning was used as intelligence by the U.S. government.
Now that he has finished his criminal trial, the question arises, what about his treatment in military detention?
Was it constitutional?
Did the government violate any of his constitutional rights when they held him in military detention for a prolonged period of time without any access to a lawyer?
Without any contact with – in fact, during a particularly aggressive period of about five months with almost no human contact at all and kind of extreme sensory deprivation, whether or not that kind of treatment violates the Constitution.
And so this is a civil suit that's been brought to answer that question.
And now is he suing them for damages, monetary damages?
There are damages, but the lawyers who have brought this suit are only asking for one dollar in damages.
And my sense is that the reason they did that is because it's actually difficult if the government did everything that it did to you that they've done to Padilla, you would find it difficult to have a legal remedy, to find a legal remedy.
And what the lawyers are trying to do is to have a day in court for these particular questions about the military detention that have never been fully assessed by a court.
And so to do that, they filed this tort suit, but instead of asking for whatever you would ask for, millions of dollars in damages, they've asked a dollar because they want to get into court.
Right, and they're trying to make the point that they're not just greedy lawyers in it for their cut.
This is about the principle of the matter.
That's good to know that they're just seeking a dollar there.
Now, what does it mean when the government says that they didn't violate any of Padilla's clearly established rights?
Okay, when a suit like this is filed, the government will almost always move to dismiss the suit.
And part of that procedure is whether or not government officials acted outside of their authority.
Because if they acted within their authority, then they are protected by qualified immunity.
So if you're a government official and you do basically what you're supposed to do as a government official, you're protected from lawsuits, a kind of immunity, so you can't be sued.
So the question here is, did they do something that they weren't authorized to do?
Okay, and here we have some pretty good detail about what happened to Mr. Padilla.
He was taken from the criminal justice system and moved into a military prison and was subjected to fairly aggressive interrogation over an extended period of time and was denied access to a lawyer and you know the story.
So the question is, did U.S. officials in doing this violate any clearly established constitutional rights?
Now, it depends on who you ask.
A lot of people will say, well, yeah.
Well, here's the thing, and I'm really not a lawyer and I'm not sure what all legal training you have.
I know you cover criminal cases.
That's your beat, right, for the Christian Science Monitor.
But I'm looking right now through the magic of the worldwide web and the various trucks and tubes and so forth here.
Amendment 5 and Amendment 6 say that what they did to Padilla is illegal.
Oh, and Amendment 8.
Yeah, that's a cruel and unusual punishment.
Never mind 9 and 10, they never existed.
The government's position is that once someone is declared an enemy combatant, they have some rights, but they don't have those rights.
And so once the president determines that you're an enemy combatant, and remember, Padilla is a citizen and so this really applies to anyone.
And he was detained within the United States, and so it really does apply to anyone.
But the government's position is he was validly determined to be an enemy combatant by the president, and he was held in military custody because he was a combatant in the war on terror.
And that war on terror, the battlefield, includes the United States, not just Afghanistan or Iraq or some other place, but also in the United States.
And therefore, he does not enjoy those rights once he has been designated an enemy combatant.
And so from the government's perspective, no clearly established constitutional rights were violated.
Now, that's kind of a funny riddle, too, though, isn't it, that the president is saying we're at war and he's extending his war power to America as the battlefield, and yet there's not a congressional declaration of war, and he didn't ask for one.
Well, it comes down to how the courts read a statute passed by Congress shortly after 9-11, the authorization to use military force statute, that preceded the move into Afghanistan.
Well, we know that Tom Daschle and I believe Senator Leahy struck out major portions of that, that it was actually written by the White House to be overly broad, and that they narrowed it to he's authorized to hunt down and kill the people who did the attack of September 11th, not any terrorist in the world like he wanted it to say.
There's a great deal of debate on this, and the administration's position is they view it quite broadly, and they've used it, and that's a question that will likely be resolved.
If Padilla gets a hearing on this, this will be resolved in that hearing.
So this will be the case where the court finally decides if there is to be one?
Well, not necessarily.
It could be.
But there's another case that's further along.
This is the Al-Marri case that I think we've talked about as well.
That case is coming up for argument at the end of this month, and before the entire Fourth Circuit.
And so that case raises related questions.
It's not a civil suit, and it's not exactly like the Padilla case, because Al-Marri isn't a citizen.
But like Padilla, he was arrested on American soil, unarmed.
That's correct.
That's correct.
And so it's very similar.
And it may be completely identical in terms of the legal analysis, but we'll have to see.
We'll know in a few weeks what they think at the, well, we'll at least know what questions were asked at the Fourth Circuit, and then we'll see what they decide.
And that case may well go to the Supreme Court.
Okay, so folks, imagine this happens to someone you know and care about.
He's arrested and held as a material witness.
The judge says, okay, well, let's talk to this guy.
And they say, well, sorry, we already gave him to the Navy.
And then the Navy holds your friend or your family member for years.
And then when it comes time for the Supreme Court to rule on his case, they go ahead and tack him on to somebody else's indictment and convict him in criminal court.
And you find out, in fact, as the case goes to trial, that your friend is actually now a complete basket case because he's been tortured for two or three years.
Is that really the American system that we live in now, Warren Ritchie, where they could do this to a friend or a neighbor of mine or of the people in my audience?
Well, that's the broad question that's being asked.
Can the government do this?
It's a very basic question, but there are a number of hoops that have to be jumped through to get to it.
But, yeah, that's the basic question.
Can the government do this?
Can the government treat somebody this way?
And it doesn't involve any clearly established constitutional rights.
Now, the other thing about this is, you know, there's been a tremendous debate within the administration and, of course, across the country.
As your listeners know about torture and the torture memos and the extent of presidential authority to hold detainees, you can ask this question, well, what were the clearly established laws and rights over the past few years while this was happening?
And some people might argue that given that there was such a debate going on, there weren't any clearly established rights.
And I think civil libertarians would certainly find that dismaying.
Well, yeah, that's a very interesting question.
When all this torture stuff has basically been in secret, we've had to see different journalists here and there.
It's like pulling teeth, trying to find out information, and then every new document that they uncover shows that, well, secretly, I guess, the Cheney regime in the vice president's office over at the Justice Department just decided they would ignore the law and make up their own as they went along.
It would be pretty hard to argue that that's clearly established powers of theirs when it's, you know, all this sneaking around.
Well, we'll see.
If it gets that far, then, you know, if it actually gets into court and these arguments come up, it will be interesting to see if that is the argument.
Well, you know, to the effect that it was so confused, the situation was so confused, we thought that we could do this, but now maybe we can't.
And at any rate, the officials were being told that they could do something, they could do these things from the Justice Department and maybe from lawyers in the Defense Department.
But that was based on erroneous legal analysis, and now our understanding of the law is this.
So it'll be interesting to see how it plays out.
So I think it's actually going to be well worth watching closely.
Certainly it will.
Now, tell me this.
In the Justice Department's brief, did they refer to the Military Commissions Act?
Because I know that there were parts of that that basically provided retroactive protection for government employees who had been involved in stuff like this.
Do they cite this in their recent brief to the court?
You know, I don't recall seeing any reference to the Military Commissions Act.
And that question of, this will come up in the Almarri case, but I didn't see it in this, this is a motion to dismiss.
And the Military Commissions Act was passed after, it might have been passed after Padilla was moved.
I don't know, it's a good question.
It was just about a year ago, it was September, I think, 2006 that they passed it.
The one thing that they do argue is that one of the things that Padilla is asking is that the Defense Department declare that it will not redesignate him as an enemy combatant.
And the government has come back and said, well, he doesn't have any standing to even argue this because he's no longer in the custody of the Defense Department.
He's in the criminal justice system awaiting sentencing.
But that doesn't make any sense.
When else would he try to get them to declare that they won't kidnap him again?
Well, they're saying that this is speculative and to have standing to come into court, he has to have an actual injury.
And so he would need to wait until he was taken back into military custody if that was to happen.
And the government says, well, given that he's just been convicted of a crime and is about to be sentenced, it's unlikely that that will ever happen.
And you, the court, can't base your ruling on something that's hypothetical.
Well, and in this situation, after all this, it seems like it would be pretty hard for them to justify turning him back over to the military when, after all, he's on his way to the supermax to sit in the cage next to Ramsey Youssef anyway, right?
Well, yeah, but at the time that this was filed, there was an expectation that he might be acquitted at trial.
Well, it should have been, it seems like to me.
The concern was that if he was acquitted, you know, he would have to be, the courthouse doors would have to open and he would have to be able to walk out of them.
And the concern was that he would be met on the way out of the courthouse by military officials who would then take him back to the brig.
And it's not entirely clear that his enemy combatant designation was ever rescinded.
In fact, I actually don't think it has been.
I think he might technically still be an enemy combatant, for whatever that means.
Really?
It means they can do whatever they want with him when they feel like.
Well, I mean, I think it means that they could pick him up and just take him back.
And one of the things in the research I've done earlier, the psychologist who looked at him and spent time examining him found that he just has an extraordinary fear of returning to the brig.
They told me that he would almost rather die than go back.
It was just such a terror for him to go back and potentially face whatever it is.
Only he knows exactly what happened to him, but whatever it is, it has left him in a state of terror that it might be repeated.
Now, have you talked with the psychiatrist who examined him?
Yes.
And so, other than being absolutely terrorized at the prospect of being sent back to the military brig, what else can you tell us about Padilla's state of mind?
How this guy perceives the world after the time he spent in there?
It's hard to know where he is right now in terms of his mental capabilities or disabilities.
The examinations that took place took place prior to his trial, which was earlier this year.
And during those examinations, the psychiatrist and psychologist had a great deal of trouble getting him to open up and talk.
What they discovered is that he has this kind of terror about his treatment, and he doesn't want to talk about it, and any effort to have him talk about it sort of resurrects the experience.
And it immediately places him in a very tense and uncomfortable sort of frame of mind, and he becomes agitated.
Well, there was quite a fight over whether he was even fit to participate in his own defense, right?
Well, yeah, this came up before the trial, and this may be a subject on appeal.
But as you know, the standard for whether someone's competent to stand trial isn't that high.
There are plenty of people who have severe mental illnesses who are deemed competent enough to stand trial.
That doesn't mean that they don't have a severe mental illness.
To me, the question isn't that.
To me, the question is, if he has this disability, and as near as I can tell, everybody agrees he does, what caused it, and when was it caused?
That's the question that seems to me could be answered by independent psychologists and psychiatrists and investigators.
And if it was caused by activity in the brig, then by definition, does that activity comport with constitutional requirements and values that we have as a country?
Well, what do we know?
I know that the whole issue is surrounded in secrecy, really, but what facts do you have about how he was treated in military custody?
Well, some of the information that came out as a result of discovery prior to the criminal trial, some of the documents related to his detention in the brig show that there was this period of about five months from late 2002 to early 2003 in which he was kept in a cell with very little in it.
I don't think he had a mattress.
There was no clock.
The windows were covered over.
He was essentially alone in a concrete room, and he had almost no contact with another human being for that period of time, for months.
There were guards who would come by and look.
He did have a camera on him at all times.
There was a camera up in the corner of the cell, and there were guards who would come by, but the guards were told not to talk to him.
And his meals were slid in through a slot at the bottom of the door.
So he couldn't even look out the door.
There was a window on the door, but that was blocked over as well.
So if you can imagine being in a, I don't know, nine foot by, I'm not sure the exact size, but it was a standard prison cell, but with everything taken out.
There were no books, no newspapers, no opportunity to make phone calls.
He was by himself with nothing to distract him at all.
It's an interrogation technique called isolation.
Well, that's what the Soviets would do, right?
Hey, we never laid a hand on him.
All we did was drive him completely out of his mind.
Yes, the Soviets did it, yeah.
Now, did you see the Mukasey hearings?
Is that how you pronounce it, the new attorney general nominee?
See, I saw part of them, but I was actually working on something else during most of them.
I see.
Yeah, I actually missed the hearings, but from what I read, he basically seems to agree, this new pick for attorney general, that yes, the president can violate statutes when it seems to him like it's necessary, and apparently that includes the statutes that forbid him to torture people.
Yes, I know what you're talking about.
It's a little hard to talk about this in the abstract as hypotheticals.
When he was answering those, I think he was just trying to maintain flexibility, because it's not a secret what these issues are and that they're relevant to how detainees are being treated.
You don't really know what's really going on, but it seemed to me that he wanted to preserve as much flexibility as possible without being pinned down.
So what does that mean in terms of the future?
It's awfully difficult to know.
If the Democrats and the Judiciary Committee were hoping that they could get a pledge from somebody saying that we won't do this, this, this, and this, like we won't do waterboarding, they didn't get it.
Nope, certainly not.
All right, well, you will be continuing to cover this case for the Christian Science Monitor, is that right?
Yes, absolutely.
All right, well, I hope we can continue to bring you on this show to help explain the details, sir.
Sure, anytime.
All right, everybody, that's Warren Ritchie from the Christian Science Monitor.
Thanks very much.
Thank you.
