Balkinization  

Thursday, November 24, 2005

Will The Threads Start To Unravel?

JB

This New York Times article confirms something I suspected as soon as Padilla's indictment was announced. The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation.
The decision not to charge [Padilla] criminally in connection with the more far-ranging bomb plots was prompted by the conclusion that Mr. Mohammed and Mr. Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said.
. . . .
In an interview on Wednesday, a British lawyer for another man accused by the United States of working as Mr. Padilla's accomplice in the bomb plot also accused American officials of working to extract a confession. The lawyer said the United States had transferred the man to Morocco from Pakistan, where he was captured in 2002, in an effort to have him to sign a confession implicating himself and Mr. Padilla.

"They took him to Morocco to be tortured," said Clive A. Stafford Smith, the lawyer for the suspect, Binyan Mohammed. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla."


Not to belabor the obvious, but information obtained by torture has two significant defects. First, it won't stand up in court because it's unreliable. Second it violates basic human rights, and that's an important reason why our constitutional system doesn't allow such practices in the first place.

It seems that the Administration's decision to flout the Constitution and the rule of law has come home to roost. The Administration assumed all along that it was entitled to do whatever it wanted, and that no one should object, because, after all, it was fighting evil. But the best way to fight evil is not to do evil yourself.

And what about Padilla's own treatment while in military custody?

[P]art of the bombing accusations hinged on incriminating statements that officials say Mr. Padilla made after he was in military custody - and had been denied access to a lawyer.

"There's no way you could use what he said in military custody against him," a former senior government official said.


What I'd like to know is whether Padilla will be permitted to talk about what we did to him in the military prison. One assumes (or at the very least one hopes) that it did not rise (or sink) to the level of "enhanced" interrogation techniques the CIA has been using. Perhaps the very fact that the Bush Administration is willing to allow Padilla his day in court means that they did nothing more than question him without a lawyer present. But it will certainly be interesting to learn what interrogation techniques the Administration was willing to employ on an American citizen held in South Carolina over the course of three year's time. And it will be interesting to see whether and how the Administration attempts to keep information about what it did to Padilla from the public.

Statements in the district court litigation in New York suggest that Padilla was subjected to psychological techniques designed to break him; indeed, the Administration initially argued that he could not be given a right to see an attorney precisely because it would undermine the effectiveness of those techniques. See Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 46, 50 (SDNY 2003). If so, it is worth knowing what sort of techniques were used.

Are the threads of the Administration's coverup starting to unravel? Stay tuned.


Comments:

The New York Times says nothing that we haven't already know for years. Ramsey Binalshibh was captured on 9/11/02 and Khalid Sheikh Mohamed was captured 3/1/03. Both were in charge of Padilla's mission to blow up apartments and kill Americans, but neither has been seen or even acknowleged since capture. However, the 9/11 Report is basically written from accounts that could only come from interrogation of KSM. The government went all the way to the Appeals Court to avoid bringing KSM in to testify against Zacarias Moussaui and were willing to drop the case if necessary, so they are hardly going to turn around and use him to prosecute Padilla.

We also know that Padilla gave extensive statements described in the filings of the current case and all without access to a Lawyer. However, not giving a POW access to a lawyer is not a war crime. Instead, it has the obvious effect of preventing the government from using the statements against him in a criminal trial.

There has never been a claim, even by Padilla's lawyers, that he has been subject to any improper interrogation methods. If they used "good cop, bad cop" you could say that "Padilla was subjected to psychological techniques designed to break him" and still have said nothing.

As per ususal, journalists and bloggers are following the shiny object while missing the important point. This story claims that the Government can't make a case against Padilla because they won't produce KSM to testify. That is like saying that the Government won't produce Al Capone to testify against the Bookkeeper. KSM concieved, planned, and commanded the 9/11 attack. He and Binalshibh are vastly more important than either Padilla or Moussaui. They were probably more important to 9/11 than Bin Laden himself. The story isn't that the US won't bring them in to convict some little POS terrorist like Padilla. The story is that the US has had them for three years and hasn't brough them to trial. However, because there isn't a news conference or court case, people follow other stories without even thinking.

According to Newsweek, the Government has told Padilla's lawyers that they are not dropping the claim that he is an enemy combatant. Therefore, this indictment is not a ploy to avoid the appeal. While they may still make suggestions that the previous case is moot, there is no substance behind the statement and the Supreme Court should see right through it. The decision to indict Padilla for what he did before going to Afghanistan has no effect on their intent or ability to hold him as an enemy combatant (and maybe charge him as a military spy) for what he did once he became an Al Qaeda soldier. These are two separate cases in separate legal juristictions.
 

"The decision to indict Padilla for what he did before going to Afghanistan has no effect on their intent or ability to hold him as an enemy combatant"

Are we really serious here? He was indicted by many accounts to prevent the SC to decide upon the latter issue. The gov't wants him shifted to civil custody, making the earlier lawsuit "moot" (in the AG's words, not some blogger's), which seems to me to have some "effect" on the matter.

The fact we "already know for years" that serious claims of torture were present in notable to me too. I guess it's true, depending on who "we" are.

As to improper interrogative methods. Well, the argument in Padilla was in part that incommunicado was improper. Such was the slant of Stevens' dissent in the case.

Do you mean like torture? Well, I guess not. Assumingly, torture or "coercive interrogation" (other than the usual in police departments across the country) has not become accepted on U.S. soil yet. Though, who knows at this point.

As to the original post, "It seems that the Administration's decision to flout the Constitution and the rule of law has come home to roost." Unclear. Padilla is still is custody, and as HG suggests, they could in theory just put him in military custody again if the criminal trial doesn't go so well.
 

This is a pretty silly post by Prof. Balkin, like most of his on this topic. But rather than continuing in his rather childish fantasy that something really bad is going to happen to Pres. Bush, why doesn't Prof. Balkin set forth his affirmative vision? The facts are pretty simple: the government has credible evidence of a terrorist plot (sort of like they did in August 2001), but nothing that would stand up in court. What should they do? Can they detain the people against whom there is credible evidence? Or do they have to wait until the buildings fall? Most left-wing commentary from the legal academy is devoted to not answering this question, which is why no one takes it very seriously.
 

The facts are pretty simple: the government has credible evidence of a terrorist plot (sort of like they did in August 2001), but nothing that would stand up in court.

If the evidence is so flimsy that it wouldn't stand up in court, why should we believe that it is credible? In particular, why should this administration, with its long record of deception on this and other issues, be given any benefit of the doubt?

What should they do? Can they detain the people against whom there is credible evidence? Or do they have to wait until the buildings fall?

False dichotomy. How about doing the same things the cops do every day when they have some evidence or reasonable suspicion about someone, but not enough for an arrest? How about actually investigating the case? Maybe getting a search warrant if there's probable cause? Have the suspect followed in public? If there's reason to believe he's going to attack a particular installation, beef up security there? This isn't rocket science. It's just good old-fashioned police work.

Sure, it would be easier for the authorities if they didn't have to worry about the Constitution. But the Framers didn't write the Constitution to make things easy on the authorities. They did it to protect our basic rights from idiots like you who are willing to throw them away at the drop of a hat due to hysterical fears.
 

This post isn't really about Padilla. It is about the handling of Abu Zubaida. He was captured in Pakistan around March 28, 2002. He had interviewed Padilla after Mohammed Atef and before KSM. By most accounts he gave Padilla up by description (an American Al Qaeda soldier who wanted to go back to the US and bomb buildings) but not name. US forces then matched this description to Padilla after they found his military records in a training base in Afghanistan.

It is not unreasonable to assume that Zubaida was "waterboarded". Something must have been done to make him talk within the 40 day window between his capture and Padilla's. With or without the technique, his testimony against Padilla would have been of questionable value. However, the military intelligence gathered from him helped the US capture Padilla and stop the "apartments operation," which was to be the direct successor attack from the same unit that commanded 9/11. Padilla's target was to kill a thousand Americans, so it may have saved that many lives.

This brings us to the real question. One group, including JB and the NYT, believe that this was a failure (in criminal justice terms) because Padilla cannot be charged as a terrorist. Another group believes that his was an intelligence success in the interrogation of an enemy prisoner who gave up valuable information that stopped an attack on the US. That was after all the purpose for which Congress authorized the use of military force against Al Qaeda on 9/18. Military capture almost never results in a criminal charge, so they do not regard the inability to convict any military prisoners as a serious problem.

As a philosophical or moral question, nobody is likely to convince anyone else. Put the question to the voters, however, and there is little doubt of the result. That's why there has never been a cover up. Cover up implies that you have something to hide, while this is a story that is worth a lot of votes. Most people don't realize that the US stopped the follow up attack to 9/11. Everything worked perfectly. The entire enemy unit, including headquarters, was captured. Policy is to not talk about intelligence. However, if the NYT makes a big enough story about this, Bush's approval rating will go up 15%.
 

Again, I'm unclear how ... and this takes up a significant part of the original post ... statements like "And what about Padilla's own treatment while in military custody?" is really not about him. Or, about asking him about his treatment etc.

Is Padilla such a non-issue (or mostly besides the point) now so that even a post directly about him, though sure raising other points, is not really about him?

I'm sorry ... this really is amazing.
 

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