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 legal saga of the Padilla case poses significant difficulties for the government.
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U.S. Faces Major Hurdles in Prosecuting Padilla

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U.S. Faces Major Hurdles in Prosecuting Padilla


U.S. Faces Major Hurdles in Prosecuting Padilla

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This is MORNING EDITION from NPR News. I'm Renee Montagne.


And I'm Steve Inskeep.

This week a court-ordered psychiatric evaluation is to be completed on Jose Padilla. He's the American held without charge for years as an enemy combatant.

MONTAGNE: In the past, we pronounced his name Padilla; that's how you've been hearing it on MORNING EDITION. Spelled P-A-D-I-L-L-A. The defendant said it that way in court.

INSKEEP: But as he awaits trial on terrorism charges in Miami, his lawyers says his client prefers the Spanish pronunciation Padilla.

NPR legal affairs correspondent Nina Totenberg reports on the extraordinary history of his case.

NINA TOTENBERG: On May 8, 2002, Jose Padilla, a 31-year-old American citizen returning from Egypt, was arrested at O'Hare Airport. Padilla, who'd converted to Islam while in prison 10 years earlier, was the focus of a major terrorism investigation. Federal officials believed he'd 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. Much of that later turned out to be untrue, or at least unsubstantiated.

But at that time, just seven months after 9/11, many inside the government were convinced and President Bush signed an order declaring Padilla an enemy combatant. At the Justice Department, Attorney General John Ashcroft was out of the country in Moscow. His spokesman, Mark Corallo, remembers being called in late that night, paging through the intelligence's been available. Corallo was terrified.

Mr. MARK CORALLO (Justice Department Spokesman): It was horrifying. It was chilling. I mean we were still very close to 9/11. The war in Afghanistan was raging. We still had that sense of fear that, at any moment, something bad could happen.

TOTENBERG: 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 in Moscow was already in the studio. And to the Justice Department spokesman this was like the slow motion moment when you knock your mother's best china off the table.

Mr. CORALLO: This is a PR guy's nightmare. 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 nuclear holocaust.

TOTENBERG: In a voice that Corallo describes as across between John Wayne and a prison warden, Ashcroft made the announcement.

Mr. JOHN ASHCROFT (Former Attorney General): We have acted with legal authority both under the laws of war and clear Supreme Court precedent.

TOTENBERG: Padilla would not be seen by any civilian again for some two years. He was held incommunicado at the navy brig in Charleston, South Carolina, until his case got to 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 some due process of law. Padilla's case, however, was sent back to the lower courts on procedural grounds. 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 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, defending the Padilla detention.

By now, though, all mention of a dirty bomb was gone with the government instead contending Padilla have been a part of a plot to blow-up apartment houses. The government won in the appeals court and 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 of brief in the Supreme Court, the Justice Department announced that it was transferring Padilla to the civilian courts and that he had been indicted not for planning any offenses in the U.S. but for a conspiracy to murder and maim and provide material support for terrorism against Russian troops in Chechnya and in 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 and accusing the Bush administration of a legal shell game that had the appearance of avoiding review by the Supreme Court. Eventually, though, the case was transferred. There are major problems for the prosecution nonetheless.

The defense has asked the trial judge to throw the entire case out because the government's treatment of Padilla has been, quote, “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 in complete isolation, so he heard no voice except his interrogators. His nine by seven cell had nothing in it, no window even to the corridor, no clock or watch to orient him in time. He was either in bright light for days on end, or total darkness. He slept on a steel pallet and loud noises interrupted any attempt to sleep. He had nothing to read or see. Even a mirror was taken away. And when he was transported, he was blindfolded and his ears were covered with headphones to screen out all sound.

His lawyers allege that during his lengthy interrogations he was forced into stress positions, hooded and threatened with death. The isolation was so extreme that, according to court papers, military personnel expressed great concern about his 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. I put that premise to Padilla's lawyer, Andrew Patel.

Mr. ANDREW PATEL (Attorney for Jose Padilla): The premise of your question is that we can do anything we want to an American citizen, but as long as we don't use what we extract from him, it doesn't matter.

TOTENBERG: Even former Justice Department spokesman Mark Corallo concedes that, in hindsight, Padilla was a bit player and that the government now faces a problem.

Mr. CORALLO: And it's going to make it difficult moving forward because we were inconsistent.

TOTENBERG: A further dilemma for the government is that Padilla's lawyers are contending 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's so passive now, they maintain, so fearful that he is, quote, “like a piece of furniture.”

Even at this late stage, after dozens of meetings with his lawyers, he suspects that they are government agents. Attorney Andrew Patel.

Mr. PATEL: He is not sure whether I and my co-counsel are in fact his lawyers or part of a continuing interrogation program.

TOTENBERG: The situation has become so impossible, the lawyers say, that they hired two psychiatric experts to examine Padilla. Significantly, both have often testified in the past for the prosecution in criminal cases. But this time, both have concluded after spending more than 25 hours with Padilla that his isolation and interrogation have resulted in post-traumatic stress disorder in which he is so fearful that he will not discuss his interrogation, will not look at videotapes of it or even review a transcript.

There is no indication that Padilla is faking it, they say. In fact, to the contrary, he denies he has any mental problems and tends to identify with the interests of the government more than his own. For example, he 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 one psychiatrist who examined Padilla, a modified version of the Stockholm syndrome, in which hostages identify with their captors because the captors hold all the power, and the more the captive identifies with that power, the safer he feels.

The government adamantly denies mistreating Padilla, though it does not dispute the particulars cited in Padilla's legal papers. Rather, the government says that its treatment of Padilla was humane and notes that it provided him medical treatment when necessary.

Now the judge in the case has ordered a separate mental evaluation. And 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 has always been to incapacitate this person.

Nina Totenberg, NPR News, Washington.

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