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.

Thursday, November 24, 2005

Padilla & Torture: Just when you thought it couldn't get worse

Q. What is worse than having the U.S. Government imprison one of its citizens indefinitely -- without any charges being brought, without any due process of any kind, and solely on the unchecked decree of the President -- while the Government has its top officials simultaneously accuse that citizen in press conferences of trying to detonate a radiological bomb inside the country?

A. Having that indefinite, lawless imprisonment and those public accusations be based upon information which was highly suspect all along, because it was obtained by the U.S. Government through the torture of the "witnesses" who provided it.

The vague indictment finally brought against U.S. citizen Jose Padilla on Tuesday contained neither of the two charges which the Administration had previously accused Padilla of in order to justify incarcerating him indefinitely: i.e., that he was a "dirty bomber" trying to smuggle and detonate a radiological bomb in the U.S., and that he was plotting to blow up U.S. apartment buildings with natural gas pipelines. The Padilla indictment is here, in .pdf form.

This gaping omission leads to a rather glaring and pressing question which, until the publication of the Times article this morning, had been unanswered. After hyping these flamboyant but unproven crimes for 3 years in order to argue that Padilla was such a unique menace that he had to be imprisoned without even minimal due process, why did the Justice Department not actually accuse him of those crimes when it finally brought charges against him?

The unbelievable now-expected though still highly disturbing answer? Because the information obtained by the Bush Administration on which those accusations were based is likely false and certainly far too unreliable to be used to convict someone of a crime, because it was obtained only by torturing the two sources who provided it:

The Bush administration decided to charge Jose Padilla with less serious crimes because it was unwilling to allow testimony from two senior members of Al Qaeda who had been subjected to harsh questioning, current and former government officials said Wednesday.

The two senior members were the main sources linking Mr. Padilla to a plot to bomb targets in the United States, the officials said

One review, completed in spring 2004 by the C.I.A. inspector general, found that Mr. Mohammed had been subjected to excessive use of a technique involving near drowning in the first months after his capture, American intelligence officials said.

Another review, completed in April 2003 by American intelligence agencies shortly after Mr. Mohammed's capture, assessed the quality of his information from initial questioning as "Precious Truths, Surrounded by a Bodyguard of Lies." . . . .

The fact that the C.I.A. inspector general's report criticized as excessive the use of interrogation techniques on Mr. Mohammed had not previously been disclosed.

So, the U.S. Government -- at the very least -- apparently wrapped the head of these two sources in cellophane and then poured water on their faces in order to induce their gag reflex and make them wallow in the terrorizing fear that they were about to drown to death. In order to make this torture stop, the sources told their interrogators whatever they wanted to hear -- in this case, that Jose Padilla was trying to detonate a dirty bomb and blow up natural gas pipelines in the U.S.

Based on this plainly tainted, highly suspect, torture-induced information, and on it alone, the U.S. Government then arrested Padilla, threw him into a dark hole by himself in a military prison, refused to let him meet with lawyers until being ordered by a federal court to do so, refused for 3 years to charge him or release him, and branded him the "Dirty Bomber" in front of the world.

And now, apparently, not only has the Government concluded that its torture-induced "witness statements" regarding the "dirty bomb" allegation against Padilla cannot possibly withstand the scrutiny of a judicial proceeding, but the Government also has substantial doubts about the truth of the accusation:

It was Mr. Zubaydah, who was captured in March 2002, who provided his questioners with the information about a plan to use a radiological weapon often called a "dirty bomb" that led to Mr. Padilla's arrest in Chicago less than two months later, the officials said.

It was Mr. Mohammed, who was captured in March 2003, who linked Mr. Padilla to a plot to use natural gas lines to bomb American apartment buildings, the officials said.

In the interviews on Wednesday, American officials from several agencies said they still regarded those accusations as serious, particularly the one [about the bombing of natural gas pipelines] described by Mr. Mohammed.

So the Government now says that it takes the natural gas bombing accusations against Padilla "particularly" seriously when compared to the "dirty bomb" accusation, which is tantamount to saying that it takes the "dirty bomb" accusation less seriously. We're talking about a radiological bomb. There is only one reason for the Government to take that accusation less "seriously" than some other accusation: because the Government has serious doubts about whether it's true.

Given John Ashcroft's unequivocal press conference declaration that Padilla was a "dirty bomber" -- not to mention the indefinite incarceration of Padilla over the last 3 years based on this charge -- it is truly remarkable that the Government has now come to conclude that the whole thing may have just been untrue all along, the sad and ugly by-product of its (non-existent) torture practices.

Last week, Atrios posted about a New York Times article reporting that Al Qaeda captive Ibn al-Shaykh al-Libi had provided substantial amounts of information regarding an Al Qadea-Iraq link which the Administration knew was almost certainly fabricated but which it nonetheless publicized prior to the war in order to convince the public of that linkage. Al-Libi fabricated this information because his CIA interrogators, who wanted to find evidence of such linkage, were subjecting him to the same "waterboarding" techniques to which Padilla's accusers were subject, and so al-Libi told them what they wanted to hear in order to make it stop.

As Atrios summarized, with depressing accuracy:

Just to recap. Bush administration needs evidence to support their war. They use torture techniqes designed to extract false confessions to obtain that "evidence," which they then use to sell the war despite knowing full well of the lack of reliability of the information.

The "recap" in the Padilla matter is no less jarring: The U.S. Government arrests a U.S. citizen and throws him into solitary confinement in a military prison, denies him access to lawyers, refuses to even charge him with a crime, and then announces to the world with great fanfare in a news conference that he was trying to smuggle a radiological bomb into the U.S. and detonate it.

The only information which they have to support this accusation and this indefinite imprisonment is obtained via torture techniques which are notorious for inducing false and unreliable information -- information which the Government has now concluded has so little reliability that they could not even charge Padilla with this crime, let alone convict him of it.

It is certainly worth emphasizing again: the reason that the Government is not supposed to -- and is not Constitutionally permitted to -- imprison people without telling them why they're being imprisoned and without giving them a trial to disprove the accusations is precisely because the Founders of this country did not trust the Government to act responsibly or honestly if its imprisonment powers were unchecked by the scrutinizing instrument of a jury trial.

That constitutional prohibition would be a critical protection against government tyranny if we had a Government which actually abided by the prohibition. Because we don't have that, we instead have U.S. citizens being throw into prison without a trial based upon information which the Government knows is likely to be inaccurate because they tortured it out of someone.

It still does not cease to amaze when one writes a post like this -- featuring torture, indefinite imprisonments, wholesale and deliberate denial of due process -- and then focuses on the fact that what is described is actually happening in the United States.

UPDATE: A good round-up of commentary on this story is found in this Christian Science Monitor article.

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