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.


  1. Anonymous12:38 PM

    It's like torture pops up in every one of these stories. There is just no question that our Government systematically used torture as a post 9/11 weapon.

  2. Anonymous2:27 PM

    Glenn, You have become my number one source for analysis on the Padilla matters and related civil liberties issues. I read that NYT article and this story's interaction with the torture issue did not occur to me until reading your post.

    Great job here, much better than anything that can be read in the mainstream newspapers or heard on television.

  3. Anonymous7:43 PM

    Two issues I have with this that maybe you could deal with in a later column. I noticed you have somewhat discussed this before, but I am brand new to your site and hope I'm not bringing up too much that you've discussed already into the ground.
    1) Are you saying that Padilla isn't guilty of any crimes, such as collaboration with Al-Qaeda or intent to manufacture or use some kind of bomb? I know almost nothing about this case, however, I'd be willing to bet that this guy was invloved with Al-Qaeda, and I haven't heard anyone actually say he was innocent of the crimes with which he's charged.
    2)There's torture and there's torture. Saddam's acid showers and rape rooms were torture. As far as that goes, methods of interrogation need to be defined, monitored, and supervised in accordance with reasonable needs and expectations. There's torture to make an example of someone and demonstrate that your regime is not to be questioned. The US does not do this. Let's be honest with ourselves, the enemy isn't going to voluntarily give us information because we're nice. Interrogation is making the subject uncomfortable. You have to do this to a degree. I agree that there are things we're allowed to do, and things we're not. I applaud the Bush administration for wanting to bring this up for discussion, rather than issuing a blanket statement that we will give our prisoners the nicest rooms and best food we can. I'm not an advocate of interrogation without limits, but the only way to limit it is to define it. Saying that someone is "tortured" no longer means anything, since things like standing too long and being cold are considered torture. Even scaring someone is torture. It's extremely hard to scare someone, though, when he knows that he won't be subject to any real punishment. I'd like to see more information as to what constitutes the torture to which these terrorists are subjected. Even waterboarding, as defined, isn't something I would consider banning. It just scares the subject. We can't reasonably discuss torture without establishing what it means.

  4. 1) Are you saying that Padilla isn't guilty of any crimes, such as collaboration with Al-Qaeda or intent to manufacture or use some kind of bomb? I know almost nothing about this case, however, I'd be willing to bet that this guy was invloved with Al-Qaeda, and I haven't heard anyone actually say he was innocent of the crimes with which he's charged.

    If you know virtually nothing about Padilla's case, why would you possibly be willing to bet that he's guilty?

    As for me, I don't know if he's guilty. I do know that we have a criminal justice system that exists to enable the Government to prove citizens are guilty of a crime if they want to incaracerate them. The point is that the Government should have to prove that Padilla is guilty before confining him to an indefinite term in prison.

    Would you want the Government to be able to throw you into a military prison without your having any resouce to judicially challenge your imprisonment?

    2)There's torture and there's torture. Saddam's acid showers and rape rooms were torture. As far as that goes, methods of interrogation need to be defined, monitored, and supervised in accordance with reasonable needs and expectations. There's torture to make an example of someone and demonstrate that your regime is not to be questioned. The US does not do this.

    I don't think we should use Saddam as our standard: that as long as we're not as inhumane and monstrous as Saddam was, then we're doing OK.

    People have died in U.S. custody as a result of the treatement they received while being interrogated. It's hard to dismiss things like that as just some innocuous form of torture lite.

    I agree that the discussion gets obscured without there being a definition of "torture," because that word packs such a potent emotional punch that it can obfuscate rather than illuminate the topic if not used with precision and clarity.

    But I can't imagine that it's controversial to say that causing someone to choke and thereby be in imminent terror that they are about to drown to death constitutes "torture." One could argue that it's still justifiable to use this technique, but it's hard to see how one can deny that it's torture.

    Whatever you think of the morality or immorality of torture, there are 3 practical considerations that ought to preclude one from being in favor of it:

    (1) If we legitimize torture against others, then others will more readily torture our soliders and civilians. Why shoudln't they? If we torture our enemies, isn't it only obvious to expect that we will be tortured by them, too?

    (2) Torture yields false information and doesn't work as an effective interrogation device. Because of the pain it causes, it often leads the subjects to tell the interrogator whatever they want to hear - including by fabricating things - in order to make the pain stop.

    (3) Torture prevents the information obtained from being used in criminal trials. That's the Padilla problem - whether it's because the "dirty bomb" information is fabricated because it was torture-induced, or whether it's true, it can't be used in any trial against Padilla, which is why the Government hasn't charged him with that crime.

    The morality of torture really can't be debated. You either think it's wrong or you don't. But the pragmatic effects of it are subject to debate, and in that regard, it seems like a losing policy from every perspective.

  5. Anonymous7:22 PM

    (1) There's already an international agreement on the treatment of idenitified soldiers.

    (2) Evidence obtained through "torture" (which was never defined in this discussion), is not the only evidence used. Eyewitness testimony is notoriously unreliable too, but we still use it. Forensic evidence is only circumstantial, but it's still used. My point is that it's only one aspect of evidence, and all evidence has to be corroborated through other means. If grabbing someone roughly scares them enough to give some kind of usefull statement, I'm all for it. I'm not concerned about someone getting bruised. I am concerned if someone were to die or suffer serious physical trauma. However, I'm not aware of sanctioned torture being the cause of anyone's death in America. This is something that needs to be addressed, though I'm not sure right now how to address it without providing those who do wish to destroy America (and they are out there) confidence to endure simpler methods of coercion. I'm open to suggestions.
    (3) Ya, so? They don't use it in the trial. They can still use it to identify suspects, get information about people, places, and things, gain access to other information not previously known. For example, would they have had Padilla's name without one of the suspects naming him? Or did they already know his name, and wanted to know more details? Obviously they have enough evidence to indict him on criminal charges, so that's enough for me, since I'm not on the jury, to presume a degree of guilt. And if he's found innocent, I'll deal with that too. I see absolutely no reason for them to hold someone that they have no actual evidence against. Unless he's someone they wanted silenced for ulterior reasons, why not assume they had evidence of complicity?
    (4)The morality of torture really can be debated. Some things are okay, and some things aren't. Scaring someone is definitely on the okay side. I have no problem with waterboarding. I'd have a serious problem with castration. It's something that needs to be discussed, regulated, and monitored. Otherwise ANYTHING is torture.

  6. Anonymous3:41 AM

    In the interest of fairness, I looked up the evidence against Padillo. Needless to say, they have a mountain of physical evidence against him, including notes, a suitcase full of cash, and Al-Qaeda contact information. My wild and crazy guess turned out to be right, huh?
    The really interesting part is that during interrogation, he claimed he never intended to actually follow through with the plan to blow up the buildings. It was just a ruse to get cooperation from the terrorists. Now stop for a minute and think about this. Doesn't this indicate that he wasn't tortured to the point where he'd say anything?
    A good source I found was The Chicago Tribune.,1,7360685.story?coll=chi-newsnationworld-utl&ctrack=1&cset=true