U.S. Faces Major Hurdles in Prosecuting Padilla

A court-ordered psychiatric evaluation is to be completed this week on Jose Padilla, the American held without charge for nearly four years as an enemy combatant. Whatever the judge decides, the Padilla case is an extraordinary legal saga that poses significant difficulties for the government.

The story begins on May 8, 2002, when Padilla, a 31-year-old American citizen returning from Egypt, was arrested at O'Hare International Airport in Chicago.

Padilla, who had converted to Islam while in prison 10 years earlier, was the focus of a major terrorism investigation. Federal officials believed he had met with top al-Qaida officials, even Osama bin Laden, and was on a mission to set off a radioactive dirty bomb in a major U.S. city. Many of those claims turned out to be untrue, or at least unsubstantiated. But at the time, just seven months after the terrorist attacks of Sept. 11, a number of government insiders were convinced of Padilla's involvement in a terrorist plot. President Bush signed an order declaring Padilla an enemy combatant.

At the time, Attorney General John Ashcroft was in Moscow. His spokesman, Mark Corallo, remembers receiving a late-night phone call when Padilla was arrested. Paging through the intelligence then available, Corallo was terrified.

"It was chilling," he recalls. "I mean, we were still very close to 9/11. The war in Afghanistan was raging. You still had that sense of fear that any moment something bad could happen."

'A PR Guy's Nightmare'

The question for the Bush administration was how to inform the American people. Although the White House would later tell reporters that Ashcroft had blundered ahead on his own, Corallo says the president's staff insisted the attorney general make the announcement, rejecting arguments from Corallo and others that with Ashcroft in Moscow, it would be a logistical and public relations nightmare. The next morning, the White House changed its mind, says Corallo. But Ashcroft was already in the studio. Corallo says events unfolded like "a slow-motion moment" when you "knock your mother's best china off the table."

"This is a PR guy's nightmare," he says. "The cup is off the table, headed to the floor, as the attorney general appears on the television screen with this eerie pink-orange background that made you think of nuclear holocaust."

Ashcroft declared, "We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb."

Padilla would not be seen by any civilian again for two years.

He was held incommunicado at the Navy brig in Charleston, S.C., until his case reached the Supreme Court. In June of 2004, the high court ruled in a companion case that no American could be held without charge, without access to counsel and without some due process of law. Padilla's case, however, was sent back to the lower courts on procedural grounds.

'The Pathology of Group Decision-Making'

Inside the Bush administration, the question was what to do now. Top Justice Department officials warned that if the case went back to the Supreme Court, the administration would almost certainly lose. But according to knowledgeable sources, key players in the Defense Department and in Vice President Cheney's office insisted that the power to detain Americans as enemy combatants had to be preserved. So the administration went back to the lower courts to defend Padilla's detention. By now, though, all mention of a dirty bomb had been removed from the matter, with the government instead contending that Padilla had been part of a plot to blow up apartment houses.

At the appeals court level, the government won, and so Padilla's lawyers appealed to the Supreme Court. Inside the administration, the battle over what to do raged on. As one Justice Department official put it, "This was the pathology of group decision-making."

Finally, just days before the deadline for the government's filing a brief in the Supreme Court, the Justice Department announced that it was transferring Padilla to the civilian courts. He had been indicted, the department said — not for planning any offenses in the United States but for conspiracy to murder and maim and provide material support for terrorism against Russian troops in Chechnya and other places.

The very conservative judge who had written the appeals court opinion upholding Padilla's enemy combatant status, Judge Michael Luttig, exploded in written rage, refusing to transfer the case to the civilian courts. Luttig accused the Bush administration of a legal shell game that had the "appearance" of "avoiding review by the Supreme Court."

Eventually though, after a government appeal to the Supreme Court, the case was transferred to Miami, where Padilla now is scheduled to go on trial.

Allegations of 'Outrageous' Treatment

The prosecution faces major problems in the trial. The defense has asked the judge to throw the entire case out, asserting that the government's treatment of Padilla has been "so outrageous as to shock the conscience."

According to court papers filed by Padilla's lawyers, for the first two years of his confinement, Padilla was held in total isolation. He heard no voice except his interrogator's. His 9-by-7 foot cell had nothing in it: no window even to the corridor, no clock or watch to orient him in time.

Padilla's meals were delivered through a slot in the door. He was either in bright light for days on end or in total darkness. He had no mattress or pillow on his steel pallet; loud noises interrupted his attempts to sleep.

Sometimes it was very cold, sometimes hot. He had nothing to read or to look at. Even a mirror was taken away. When he was transported, he was blindfolded and his ears were covered with headphones to screen out all sound. In short, Padilla experienced total sensory deprivation.

During length interrogations, his lawyers allege, Padilla was forced to sit or stand for long periods in stress positions. They say he was hooded and threatened with death. The isolation was so extreme that, according to court papers, even military personnel at the prison expressed great concern about Padilla's mental status.

The government maintains that whatever happened to Padilla during his detention is irrelevant, since no information obtained during that time is being used in the criminal case against him.

Padilla's lawyer, Andrew Patel, rejects that premise. The assumption, says Patel, is that the U.S. government can do anything it wants to an American citizen as long as it does not use any information it extracts in a court of law.

Even former Justice Department spokesman Corallo concedes that in hindsight, Padilla was a bit player. Corallo says the government faces a problem over its ever-changing claims about what Padilla did and whether he could be prosecuted in a civilian court.

"It's going to make it difficult moving forward, because we were inconsistent," Corallo says.

Too Mentally Damaged to Stand Trial?

Another dilemma faces the government as well. Padilla's lawyers contend that as a result of his isolation and interrogation, their client is so mentally damaged that he is unable to assist in his own defense. He is so passive and fearful now, they maintain, that he is "like a piece of furniture."

Even at this late stage, after dozens of meetings with his lawyers, Padilla suspects that they are government agents, says Andrew Patel, who is on the legal team. Padilla may believe that the lawyers assigned to represent him are in fact "part of a continuing interrogation program."

The situation has become impossible, defense lawyers say; they've hired two psychiatric experts to examine Padilla. Both have often testified for the prosecution in criminal cases. This time they have sided with the defense.

After spending more than 25 hours with Padilla, both psychiatric experts have concluded that his isolation and interrogation have resulted in so much mental damage that he is incompetent to stand trial.

The experts believe that Padilla suffers from post-traumatic stress disorder as a result of his isolation and interrogation. According to reports filed by Dr. Angela Hegarty, director of forensic psychiatry at Creedmoor Psychiatric Center in New York, and Dr. Patricia Zapf, director of forensic psychology at the John Jay College of Criminal Justice, Padilla is so fearful that he will not discuss his interrogation, will not look at videotapes of it and will not even review a transcript. In their view, he is not able to understand the significance of legal proceedings against him.

Doctors Say He's Not Faking It

There is no indication that Padilla is faking it, Hegarty says. To the contrary, Padilla denies that he has any problems and tends to identify with the government's interests more than his own.

For example, Padilla thought his lawyers were unfair in their rigorous questioning of the FBI agents who arrested him at O'Hare airport. This is a "typical response," writes Hegarty, a modified version of the Stockholm syndrome in which hostages identify with their captors. Because the captors "hold all the power," the more the captive identifies with that power, "the safer he feels."

Both Hegarty and Zapf administered a variety of objective tests to evaluate Padilla. While they found that he is able to understand the basic charges against him, he is "unable to assist" his attorneys because of his mental condition and the "paranoia" resulting from his treatment during two years of total isolation, followed by an additional year and a half of similar treatment. Zapf also suggested that Padilla may have suffered "brain injury." Both doctors noted his tics and spasmodic body responses.

The government adamantly denies mistreating Padilla, though it does not dispute the particulars cited in Padilla's legal papers. Rather, the government says its treatment of Padilla was humane and notes that it provided medical treatment when necessary. The government agreed to the additional psychiatric evaluation that has now been ordered by the judge.

Indeed, there are even some within the government who think it might be best if Padilla were declared incompetent and sent to a psychiatric prison facility. As one high-ranking official put it, "the objective of the government always has been to incapacitate this person."

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