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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, December 04, 2006

The ongoing national disgrace of lawless indefinite detentions

I've honestly run out of adjectives to use when discussing the Bush administration's treatment of U.S. citizen Jose Padilla. Last month, I wrote about the torture -- there is no other accurate word for it -- to which Padilla alleges, quite credibly, he was subjected over the 3 1/2 years of his lawless detention. Today, The New York Times describes the apparently jarring video showing a completely dehumanized Padilla being transported from his black hole to a dentist visit. The article includes an assessment from a psychologist describing how Padilla's humanity has basically been extinguished by his treatment.

Digby says everything that needs to be said about how depraved this specific behavior is. And any decent human being can see that for themselves. It is as self-evident as anything can be. So I want to make a few additional observations about this revelation:

(1) We are only learning about what was done to Padilla because, after 3 1/2 years of being held without any charges, he is now in the criminal judicial system and the Government's conduct and its allegations against Padilla are both now being subjected to scrutiny (just like the pre-9/11 Founders intended and explicitly required).

But if the Bush administration had its way, Padilla would still be languishing in solitary confinement -- prohibited from any contact with the outside world, including lawyers -- and detained without any charges at all. Bush officials did not voluntarily indict him and transfer him to the judicial system because they suddenly woke up one day and realized that American citizens shouldn't be imprisoned for years and years without due process. To the contrary, they still believe they have the power to detain U.S. citizens in that manner.

They only brought charges against Padilla in November, 2005 -- and transferred him from his military brig to a federal prison -- because the Supreme Court was set to rule on the legality of their treatment of Padilla, something they were desperate to avoid. By indicting him and finally allowing him to contest the accusations in court, the administration was able to argue -- successfully -- that the Supreme Court should dismiss Padilla's case because the relief he was seeking (i.e., either be charged or released) was now granted and his claims were therefore "moot."

But the administration continues to argue that it has the power to detain U.S. citizens -- including those, like Padilla, detained not on a "battlefield," but on U.S. soil -- indefinitely and without any charges being brought. Nothing has changed in that regard.

(2) The Bush administration "justified" its treatment of Padilla through rank fear-mongering -- having John Aschroft flamboyantly brand him "the Dirty Bomber" and then leak to the press over the next two years that he wanted to blow up apartment buildings. But the indictment contained none of those allegations (because the "evidence" on which they were based was flimsy from the start and, independently, was unusable because it was obtained via torture). Instead, the Indictment merely recites the vaguest possible terrorism-related conspiracy accusations against Padilla.

Now that they are forced to defend their accusations in court, the Bush administration's case against Padilla has been revealed to be incredibly weak, as Dan Eggen's typically excellent article in The Washington Post last month detailed:

But now, nearly a year after his abrupt transfer into a regular criminal court, the Justice Department's prosecution of the former Chicago gang member is running into trouble.

A Republican-appointed federal judge in Miami has already dumped the most serious conspiracy count against Padilla, removing for now the possibility of a life sentence. The same judge has also disparaged the government's case as "light on facts," while defense lawyers have made detailed allegations that Padilla was illegally tortured, threatened and perhaps even drugged during his detention at a Navy brig in South Carolina. . . .

But some legal scholars and defense lawyers argue that the government's case is so fundamentally weak, and its legal options so limited, that Padilla could draw a relatively minor prison term or even be acquitted. The trial has already been postponed once, until January, and is almost certain to be delayed again.

It should go without saying (though I have no doubt that, for some, it does not) that whether Padilla is ultimately found guilty has absolutely no bearing on the disgraceful crime of detaining him with no charges for years and torturing him.

But the fact that the case against Padilla is so weak ought to cause any rational person to understand the dangers of vesting the power in the President to order people imprisoned forever without any real judicial process. Unfortunately for the U.S., the majority of the Military-Commissions-Act-approving 109th Congress was not composed of people who reason that way or who actually believe in the way America was designed to work.

(3) As Jeralyn Meritt said yesterday with profound understatement: "There should be a greater outcry over this." As I have said many times, the most astounding and disturbing fact over the last five years -- and there is a very stiff competition for that title -- is that we have collectively really just sat by while the U.S. Government arrests and detains people, including U.S. citizens, and then imprisons them for years without any charges of any kind. What does it say about our country that not only does our Government do that, but that we don't really seem to mind much?

Along those lines, it is hard to express the contempt merited by the drooling sociopaths who not only endorse this behavior but, with what can only be described as serious derangement, laugh about it and revel in its cruelty and its lawlessness. Here is Boston Herald columnist and hero to the most rabid Bush followers, Jules Crittenden:

I Think We're Supposed to Feel Bad About This

NYT offers up a day in the life of Jose Padilla. You may recall he is the gentleman from Chicago who converted to Islam, hobnobbed with al Qaeda, and, our
government has alleged, came back here with a plan to blow up apartment buildings, and now apparently lives in a state of virtual sensory deprivation while awaiting trial on charges of providing support to terrorists. A big day for Jose is having a root canal done.

Posted by jules crittenden at 1:41 AM

Of course, "our government" has not alleged that Padilla tried to "blow up apartment buildings." They "alleged" that only through leaks to the press, but in the actual Indictment, they alleged nothing of the sort, opting instead to rely on charges of "terrorism" so vague and bereft of substance that Padilla's lawyers have barely been able to figure out what he is being charged with and the Federal Judge has demanded more specificity.

But this is America. We don't need any of those 9/10-era indictments, trials and convictions. Once "our government" -- through "our Leader" -- unilaterally decrees, in secret, that someone is a Terrorist, there is no punishment too severe for them. And we must allow our Leaders this power, otherwise our freedoms might be threatened by Terrorists.

(4) The Bush administration currently has in its custody 14,000 human beings around the world (at least) who have never been charged with any crime (needless to say, we're not entitled to know the number or what is being done with them, because that's Secret, like everything else). That includes legal residents of the U.S. detained on U.S. soil and a photojournalist for The Associated Press in Iraq whose photographs of the war Bush followers disliked -- all simply decreed to be Guilty and held indefinitely with no process of any kind, undoubtedly in many cases subjected to the same treatment to which Padilla was subjected, if not worse.

The value of the Padilla case is that some light will at least finally be shined on the behavior of the Bush administration in its treatment of these detainees, because they will be forced to disclose information about what they have done. Between the truth-producing weapons of the criminal justice system and the imminent Congressional investigations, this relatively mundane video is only the beginning of what will be revealed in this area. It remains to be seen what the consequences of all of this will be, if any, for those who have perpetrated it.

UPDATE: Atrios has some observations regarding the effects of prolonged solitary confinement -- a tiny fraction of what was done to Padilla. I had a client once who was charged with various crimes completely unrelated to the Epic Global War of Civilizations. Nonetheless, under legislation enacted in the aftermath of 9/11, he was declared by Attorney General Ashcroft to be a "domestic terrorist" and, as a result, was kept in his tiny cell, in solitary confinement, for 23 out of 24 hours a day, allowed one hour for "recreation," by himself, in an indoor recreation room. His contact with the outside world was extremely limited.

He had no history or prior signs of mental illness. But within six months of confinement under those conditions, he was forced to take large doses of anti-depressants after he attempted suicide. His behavior changed palpably -- fundamentally -- and he became extremely passive and, a short time thereafter, was visibly broken. All of that occurred before he was convicted of any crime.

There are punishments as bad as, and in some cases worse than, execution. It takes a truly authoritarian mind -- and a decisively un-American mentality -- to want to vest the power to mete out those punishments in a Leader unburdened by the need to prove guilt.

UPDATE II: In comments, Zack describes the core of what is going on here.

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