Balkinization  

Friday, January 05, 2007

We Torture

Brian Tamanaha

The horror of this widely reported story is almost lost in accounts that contain an overflow of words. A report by NPR (thanks to Michael Perry on Mirror of Justice) puts it concisely:

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 lengthy 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.

....

Even former Justice Department spokesman Corallo concedes that in hindsight, Padilla [an American citizen] was a bit player.

Padilla is now mentally disturbed. Although the government does not deny the specific claims above, it does deny that he was "mistreated."

Our government--including the great Justice Department--has lost its moral compass, to the disgrace of our country.

Comments:

For Americans the Rule Of Law is like the air we breathe, something that is just assumed, without any conscious awareneness of its presence or importance. I am unable to explain, otherwise, how nonchalantly Americans have found themselves able to acquiesce in its removal.
 

Funny, if parents placed children in such conditions, it would be called child abuse and neglect, and they would be arrested on the spot.
 

Yes, I saw this earlier. It gives the lie to claims, such as Richard Posner's, that psychological "stress" does not meet the threshold of being "torture." The focus on physical abuse - whether one is a proponent or opponent of torture - misses much of what is morally significant about torture.
 

....and then, for a little bit, you don't even notice that the oxygen is gone. Then it IS obvious. Then it is too late.
 

I couldn't take that for even one week without going nutty.
 

Well, what are we going to do about it? How about Congress's creating a special prosecutor to go after everyone, from Bush on down, who violated a federal law in torturing Padilla? And enact new laws, if necessary, to prevent the torture that is continuing at this moment. (I assume that Padilla is still in solitary).
 

(I assume that Padilla is still in solitary)

Perhaps, but if so, it's solitary run by the normal police authorities in Miami-Dade, not the Soviet-style deal in the S.C. brig.
 

I hope that you're not implying that solitary confinement, run by anyone, is not torture after an extended period. In any case, if you looked at the pictures of him being transported a couple of weeks ago, you have no illusions about the way he was treated then, at least, and there's no reason to think that things have changed.
 

Whatever, dudes. Was he treated worse than Fr. John Geoghan?
 

Sean: Whatever, dudes. Was he treated worse than Fr. John Geoghan?

Sean, isn't "the right" supposed to be the supporters of absolute right and wrong? Is torture right or wrong? Or does it depend on who is torturing whom? Why is moral relativism a dirty word to use for others but a perfectly acceptable policy for you?
 

This comment has been removed by a blog administrator.
 

This comment has been removed by a blog administrator.
 

All that has been offered to date are the allegations of Padilla's attorneys in filings.

Allegations are not evidence.

Does anyone have any actual evidence proving even one of these claims? Tellingly, the defense has provided none.
 

Bart, I agree--I would love to see some evidence. How about some discovery and letting the defense team in with cameras *right now*? Or what sort of evidence would you like to see them present?
 

Mr. DePalma misspeaks yet again.

He says:

All that has been offered to date are the allegations of Padilla's attorneys in filings.

Allegations are not evidence.

Does anyone have any actual evidence proving even one of these claims? Tellingly, the defense has provided none.


In fact, there is evidence.

On October 4, 2006, Mr. Padilla's counsel filed a document captioned "Motion to Dismiss for Outrageous Government Conduct" in U.S. v. Padilla, Case No. 04-60001 (S.D. Fla.). The package filed with the court consists of 37 pages, and can be found here.

The motion itself consists of 19 pages. The remaining 18 pages include: (1) an affidavit signed by Mr. Padilla, in which he states (among other things) that based on his personal knowledge the factual allegations in the motion are true; (2) an affidavit signed by a licensed physician and board-certified psychiatrist, describing her impressions of Mr. Padilla's mental state based on 22 hours spent with Mr. Padilla; (3) a memorandum written by a former professor of psychiatry at the Harvard Medical School, describing in general terms the current understanding of the medical profession regarding the psychological and neurological effects of prolonged solitary confinement; and (4) a declaration under penalty of perjury, by one of Mr. Padilla's attorneys, describing the circumstances of Mr. Padilla's confinement.

Rule 47(b) of the Federal Rules of Criminal Procedure provides in relevant part that "[a] motion may be supported by affidavit."

28 U.S.C. Section 1746 provides generally that declarations can be substituted for affidavits and have like force and effect.

You can, if you choose to do so, take issue with the admissibility or the sufficiency of the evidence to establish the governmennt conduct described in the mation. You can also, if you choose to do so, argue whether the government conduct is sufficiently outrageous to warrant dismissal of the indictment against Mr. Padilla.

However, to state that there is no evidence is simply erroneous.

You're out of your league here, pal. Go away.
 

burnsbesq said...

You can, if you choose to do so, take issue with the admissibility or the sufficiency of the evidence to establish the governmennt conduct described in the mation. You can also, if you choose to do so, argue whether the government conduct is sufficiently outrageous to warrant dismissal of the indictment against Mr. Padilla. However, to state that there is no evidence is simply erroneous.

However, to state that there is no evidence is simply erroneous.


When I speak of evidence, I am speaking of admissible evidence subject to cross examination in a court of law. If my memory of federal law serves, Padilla's affidavit for the limited purposes of this motion does not waive his right to silence and, thus, none of these allegations can be cross examined and confirmed.

You appear to be contending that Padilla's affidavit is sufficient evidence to at least bring this motion. I would observe that Padilla did not offer any affidavit in support of his initial brief until the government pointed out that fact to the court in page 15 of its response. Even with the belated affidavit, I find persuasive the government's argument that Padilla has not offered any evidence which may support this motion.

Padilla’s claim of torture is unsupported by evidence of any kind, let alone evidence proving his allegations or demonstrating “outrageous” government misconduct. He submits no records, no affidavits, no testimony from himself or any other witness. Even if this Court possessed the authority to dismiss an indictment outright based upon extreme and prejudicial mistreatment of a defendant while in military custody prior to his indictment, such relief should not even be considered unless the defendant meets a basic evidentiary threshold. For example, courts routinely require defendants to meet such a threshold before considering allegations of improper prosecutorial conduct, and will deny motions to dismiss on that basis without further inquiry in the absence of such proof. See, e.g., Wade v. United States, 504 U.S. 181, 186 (1992) (defendant claiming unconstitutional prosecutorial motive in violation of the Fifth Amendment must “make[ ] a substantial threshold showing” of such a violation; conclusory assertions “will not entitle [him] to a remedy or even to . . . evidentiary hearing”); see also United States v. Apperson, 441 F.3d 1162, 1192 (10th Cir. 2006) (dismissal of indictment because of “outrageous government conduct” unwarranted where motion to dismiss was “woefully lacking” in evidentiary support); United States v. Cannon, 88 F.3d 1495, 1501 (8th Cir. 1996) (dismissal of indictment on due process grounds was unwarranted where motion to dismiss “lack[ed] evidentiary support”). The total absence of any evidence supporting his allegations is a separate and distinct ground to reject this unfounded motion without further inquiry.

http://www.discourse.net/archives/docs/
Padilla_torture_response.pdf

The belated affidavit does not provide any testimony at all by Padilla, but merely says that his attorneys' previous allegations are true.
 

More silliness.

Perhaps I'm giving the benefit of the doubt where it should not be given, but I would have expected that someone who purports to be a practicing attorney would understand the fundamentals of motion practice. The evidence presented by way of affidavits supporting a written motion is submitted, at least in part, for the purpose of allowing the court to make a threshold determination as to whether sufficient grounds exist to justify having a hearing.

And surely no one will have failed to note the Catch-22 quality of the government's argument in opposition to the motion. Of course there are no witnesses(other that the guards, of course, and they can surely be expected to either perjure themselves or invoke their Fifth Amendment privilege against self-incrimination): that's the whole point of solitary confinement.

If you're so stinking sure that the government's conduct is blameless, why are you so terribly afraid of a hearing? Let's put the whole flippin' chain of command under oath. Let's have phalanxes of expert psychiatric witnesses on both sides, with a three-week-long Daubert hearing to see which side is dealing in real science and which side is dealing in junk science.

Bring. It. On.

Or voluntarily dismiss the charges.

I respectfully submit, sir, that the reason why you are so afraid of a hearing was best expressed by Jack Nicholson's character in A Few Good Men.
 

burnspbesq said...

More silliness.

Do you want to have a polite and reasoned conversation or, like arne, are you here to engage in snarky name calling? I will give you the benefit of the doubt that your intent is the former and attempt to continue this exchange.

The evidence presented by way of affidavits supporting a written motion is submitted, at least in part, for the purpose of allowing the court to make a threshold determination as to whether sufficient grounds exist to justify having a hearing.

I understand the purpose of the motion was to engage in a fishing expedition to obtain actual evidence of the use of coercive interrogation techniques on Mr. Padilla in order to shape the potential jury pool with the resulting media reports. I so posted weeks ago here and elsewhere.

However, the fact that the defense is on this fishing expedition to obtain evidence just further reinforces the Government's argument that Padilla is offering no evidence at this point.

And surely no one will have failed to note the Catch-22 quality of the government's argument in opposition to the motion. Of course there are no witnesses(other that the guards, of course, and they can surely be expected to either perjure themselves or invoke their Fifth Amendment privilege against self-incrimination): that's the whole point of solitary confinement.

Padilla is free to testify under oath and subject to cross examination. That is admissible evidence as noted by the Government. Indeed, defendant testimony is generally the basis for these motions and appeals before they are almost uniformly denied.

If you're so stinking sure that the government's conduct is blameless, why are you so terribly afraid of a hearing?

I am not afraid of anything. Padilla's proper remedy for any improper treatment is a civil suit against the government. If discovery under such a suit reveals that Padilla was subjected to coercive interrogation techniques (which would not at all surprise me), then let the legal chips fall where they may. However, even if such interrogation occurred, that does not constitute a "get out of jail free" card for Padilla under the law.

Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Afterwards, Padilla will have his choice of various leftist legal groups who would like nothing more than provide a free civil suit against the government on his behalf.
 

Bart: I am not afraid of anything.

Hah. More than anything you are afraid of being ignored as the irrelevant vandal you have showed yourself to be these many weeks. But I suppose you meant that rhetorically.

Bart: Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Interesting. When did you come to this common sense view? After the gov't tucked tail and gave up on it's absurd and obscene attempts to try him by military commission?

More interesting, of course, is that your real reason to make a statement of seeming agreement is to toss a barb belittling the legitimate pursuit of civil and human rights.

BTW, my dear black-and-white idealogue, which part was it of the MCA that lets a wrongfully detained citizen prove their citizenship, thereby wriggling out of designation as AUEC? Or are you ready to admit no such provision exists? Or will you slink away from this thread so as not to publicly admit your dishonesty on this and so many other matters?

Hmm, guess it's time to install the killfile script on this browser...
 

This comment has been removed by a blog administrator.
 

until UU., the president of vice, alberto g, & condeleezzaliesalot et al, get removed from office pending indictment for war crimes, crimes against humainity, treason, obstruction of justice, and all-around sculduddery, there is no 'rule-of-law' in these once great united states
 

More on Padilla, as well as the similar (albeit shorter) experience of Donald Vance cam be found here: A Nation of Hypocrites
 

This blog provides a valuable public service. The law professors who post here provide consistently accurate, insightful commentary on contemporary legal issues. Non-lawyers can learn here what the legal news of the day really means.

For months I've lurked in the threads on this blog, reading the sophistry spouted by "Bart DePalma." I'm going to respond this one time.

As you are fully aware, Mr. DePalma, if you are a lawyer as you claim to be, an affidavit or "declaration" (ie a statement under penalty of perjury that the declarant knows the facts alleged are true) is evidence. The cases cited by the Government, in the excerpt you quoted, almost certainly involve alleged misconduct (e.g. racially biased charging practices) of which the defendant has no first-hand knowledge. Padilla, by contrast, knows what happened to him. The testimony of the defendant is weighed and his credibility evaluated in the same way as that of any other witness.

Various federal statutes and federal court rules require a party making a motion to submit evidence in support of the motion, or to "verify" (swear to the truthfulness of) the factual statements in the motion, or both. The purpose of these requirements is to screen out motions that have no factual support and therefore do not merit an in-court hearing. The federal courts around the country vary in the degree to which they enforce "verification" requirements in motion practice. For a long time, the federal district court in which I practiced did not enforce that requirement. If the defense lawyer as an officer of the court made factual allegations for which the defendant clearly was a source, that was good enough to get the defendant an evidentiary hearing. Recently the courts began requiring verifications. No big deal: the defendant signs a verification, and he gets his hearing.

What may have happened in Padilla's case is that the defense followed local custom by filing the motion without a verfification; the Government (DOJ lawyers from DC, presumably) insisted on compliance with the letter of the law; and the defense complied. Or maybe the defense lawyers submitted the motion without a verification because they had to meet a court deadline and they didn't have immediate access to their incarcerated client, so they filed the verification later. The point is, the timing doesn't matter. Its enough that they complied.

You suggest that Padilla has not presented "evidence" until he's testified "under oath and subject to cross examination." How, exactly, is he supposed to do that before the court holds the hearing that he's asking for? Even if he chooses not to testify at the hearing (and you have no way of knowing whether he will), the Government may be able to call him as an adverse witness and cross-examine him. He's probably waived his privilege for purposes of the litigation on this motion, though not for trial on the merits.

The legal profession has a dark side. There, lawyers use the language and conventions of their craft, and the prestige of the profession, to create false veneers of justification for illegitimate conduct. John Yoo is the most obvious contemporary example.

Mr. Yoo is probably motivated by status and power. I don't know what your motives are, Mr. DePalma. My educated guess is that you're just a two-bit narcissist who became so nfatuated with the power of his own mind that he lost his moral compass along the way. I hope the non-lawyers who frequent this blog see you for what you are.
 

phoenix lawyer, DePalma is as transparent as a right wing troll can be.

I could see he was a fraud and I am but a lowly Unix Admin.

Nice slap down.
 

phoenix lawyer, DePalma is as transparent as a right wing troll can be.

I could see he was a fraud and I am but a lowly Unix Admin.

Nice slap down.
 

We all enjoy a good smackdown of mr DePalma every now and then. And especially on the merits. It is hard to confront the disingenious way Mr DePalma argues, simply because he makes so many of them. He contradicts himself every three other threads, but it is such hard work going through all the threads pointing them out everytime knowing that he won't respond on the merits anyway.
 

Robert Link said...

Bart: Padilla's criminal trial has been delayed for far too long. As a US citizen, Padilla never should have been detained as an enemy combatant. The Government needs to try him post haste or let him go.

Interesting. When did you come to this common sense view? After the gov't tucked tail and gave up on it's absurd and obscene attempts to try him by military commission?


This is really basic standing law under the Constitutional - US citizens enjoy constitutional rights, alien enemy combatants do not. Padilla is a citizen.

I will ignore the rest of the snarks in an effort to maintain the spirit of comity between.
 

anne: ...it is such hard work going through all the threads...

True, but I don't think it's necessary. I suspect a cut-and-paste of his "I'm a black-and-white ideologue" should suffice, once or twice per thread. Bart has made no pretense of having any goal other than to persuade others to his world view, regardless its tenuous relationship to any verifiable reality.
 

Yeah, but in order to quote that, I should start reading his stuff again (which I do every now and then when I happen to find myself behind a computer without killfile)!

I actually think that trolling is more a google thing: change the truth by writing your version as many times as possible so that it comes up first in The Google. Bart does not try to confince readers, he is trying to propagate to uncareful newcomers
 

One small note on evidence in Padilla: while there has been no hearing so nothing beyond affidavits have been supplied, there will most certainly be more evidence produced. One look at the videotape of Padilla in blackout goggles and earphones being taken to get a root canal should be enough to corroborate the information in those affidavits. In addition to which, the government is not denying that they did these things (as far as I can tell) only that their treatment of Padilla does not constitute "mistreatment." I believe one government official speaking on the record said that the government's only goal was to permanently incapacitate Padilla whether by imprisoning him or rendering him unable to function by some other means.
 

I might be wrong (I was wrong once before, so it could happen again), but don't the Rules of Evidence and/or the Rules of the Court state that an allegation not responded to in the pleadings be considered an admission (or some similar language)?

Also, torture, as is alleged by Mr. Padilla's legal counsel, is obviously illegal (I hope I don't have to prove this - I can, but I simply don't have the time). That the powers that be insinuate that they are above the law, and therefore are not subject to legal scrutiny via the process of discovery, is the essence of criminal activity under the color of law.

The court's need to grow some balls and do not only what we are paying them to do (and they want a raise - sheesh), but what they are required to do under such a scenario.

This situation is abhorrent, disgusting, repugnant, obscene, and illegal.
 

"Bart" DePalma makes a basic error of law:

This is really basic standing law under the Constitutional - US citizens enjoy constitutional rights, alien enemy combatants do not. Padilla is a citizen.

Aside from the fact that this should be "alleged alien enemy combatants, "Bart" is simply wrong on the law. Constitutional rights are present for all "person[s]" to whom the jurisdiction of U.S. courts extends and who fall into the category of "person[s]". For instance, an alien has the same rights in a U.S. criminal court against self-incrimination and double-jeopardy as does any U.S. citizen.

There is no codicil to the Fifth Amendment that excludes "[alleged] alien enemy combatants" from the Fifth Amendment protections given to all "person[s]" so situated.

The same applies to the First and Fourth Amendment (and arguably the Second).

"Bart"'s pretension that the Constitution only applies to U.S. citizens is simply wrong ... but he continues to flog this dead horse because his line of argument depends on this false premise.

Cheers,
 

burnspb 1, "Bart DePalma 0

Phoenix lawyer 1, "Bart DePalma" 0

Fun fact: I am amused to discover (no pun intended) that I apparently know more about the law than "Bart DePalma" does without benefit of having attended law school or actually "remembering federal law".

Isn't there a law against that?
 

"Bart" DePalma said:

I will ignore the rest of the snarks in an effort to maintain the spirit of comity between.

Transalted from BartSpeak into English:

"I will ignore the other comments were I -- embarrassingly -- got my legal keister kicked."

"Bart", incomprehensibly clueless on basic matters of civil procedure (particularly for a supposedly practising lawyer):

Padilla is free to testify under oath...

Affidavits submitted under penalty of perjury suffice, as "anonymous" points out.

Cheers,
 

"Bart" DePalma is not just a lawyer, but a mind-reader as well:

I understand the purpose of the motion was to engage in a fishing expedition to obtain actual evidence of the use of coercive interrogation techniques on Mr. Padilla in order to shape the potential jury pool with the resulting media reports.

Two can play that game: I have divined that the purpose of "Bart"'s frequent emissions of noisome efflux pretending to be legal scholarship here is to muddy the waters of one of the finer legal blogs around, and to throw as big a monkey wrench as possible into scholarly and serious discourse on the various excesses and illegaities of the Dubya maladministration.

QED.

Cheers,
 

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