Friday, August 17, 2007

Thoughts on the conviction

When my wife told me the verdict was in but wouldn't be announced for a couple of hours, I knew immediately what it was. I was taught a long time ago by an experienced trial lawyer that the longer the jury takes, the more likely it becomes they will acquit. Quick verdicts, he said, almost invariably are "Guilty." So a verdict coming a day and a-half after a three-month trial had all kinds of signs hanging from it.

Jose Padilla and co-defendants Adham Hassoun and Kifan Jayyousi all convicted on all counts.

At the time of closing arguments, the New York Times noted that
[p]rosecutors barely mentioned Jose Padilla for long stretches of his three-month terrorism trial, focusing instead on his two co-defendants and dozens of wiretapped phone conversations between them.

[But] Mr. Padilla, an American convert to Islam who became one of the country’s first “enemy combatants,” received top billing in the government’s closing arguments on Monday, a reminder of the importance of his prosecution.
Which was really the point: getting Padilla, less because of any hard evidence he was the heinous criminal he was accused of being but to justify the inhumane, illegal, treatment to which he was subject for 31/2 years, treatment marked by torture specifically intended to break him mentally, as the Christian Science Monitor reported a few days ago:
Those who haven't experienced solitary confinement can imagine that life locked in a small space would be inconvenient and boring. But according to a broad range of experts who have studied the issue, isolation can be psychologically devastating. Extreme isolation, in concert with other coercive techniques, can literally drive a person insane, these experts say.
Padilla's isolation was indeed extreme:
[H]e was held not only in solitary confinement but as the sole detainee in a high-security wing of the prison. Fifteen other cells sat empty around him.

The purpose of the extraordinary privacy, according to experts familiar with the technique, was to eliminate the possibility of human contact. No voices in the hallway. No conversations with other prisoners. No tapping out messages on the walls. No ability to maintain a sense of human connection, a sense of place or time.

In essence, experts say, the US government was trying to break Padilla's silence by plunging him into a mental twilight zone. ...

According to defense motions on file in the case, Padilla's cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress.

He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla's lawyer was prevented from seeing him for nearly two years.

For significant periods of time the Muslim convert was denied any reading material, including the Koran. The mirror on the wall was confiscated. Meals were slid through a slot in the door. The light in his cell was always on. ...

"It was not unusual for Mr. Padilla to go four, five, or six days without even brief [visual checks] by the brig staff, who were, in any event, under instruction not to converse with him," [psychiatrist Stuart] Grassian writes. Other than the brief checks by brig guards, Padilla went through stretches of 34 days, 17 days and 15 days without any human contact, the report says. "And when he did have such contact, it was inevitably with an interrogator," Grassian says.
Grassian is a recognized expert on the effects of solitary confinement who examined Padilla for his lawyers.

Democracy Now! adds the detail that
[h]is lawyers have claimed that Padilla was forced to take LSD and PCP to act as a sort of truth serum during his interrogations
in its introduction to an interview with Dr. Angela Hegarty, a forensic psychiatrist who spent 22 hours interviewing Jose Padilla last year before concluding that he was unable to participate in his defense. Dr. Hegarty recalled Padilla's
absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like - perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened.
In April 2003, the CSM article says, Donald Rumsfeld approved isolation as an interrogation technique at Guantánamo. DOD lawyers warned at the time that the technique "is not known to have been generally used for interrogation purposes for longer than 30 days." By that time, Padilla already had been isolated for 10 months. It continued for 33 months more.

And then, just when the Supreme Court was about to rule on the legality of holding an American citizen as an "enemy combatant," effectively stripping them of all rights solely on the president's say-so, suddenly and, oh yes, by all means, coincidentally he got thrown back into civilian court, added to an already-existing conspiracy case against Hassoun and Jayyousi. Relieved, the Supreme Court declared the case moot, in practical effect telling the White House it is free to imprison and torture people for years so long as at the very last moment they put them on trial.

(Oh, and don't prosecutors love conspiracy charges. Known as "the prosecutor's darling," they don't require a showing that you actually did anything, only that you planned to do something. I remember reading some years ago in Jessica Mitford's book The Trial of Dr. Spock of a lawyer who was quoted as saying "A boy steals some candy, he's committed a misdemeanor. Two boys plan to steal some candy but don't do it, they've conspired, which is a felony.")

In the conspiracy case into which he was dropped, the original inflammatory charges against Padilla, that he planned to set off "dirty bombs" scattering radioactive materials and to blow up apartment buildings with natural gas pipelines, were, as AP noted, "quietly dropped." Why? Well, the convenient story going around now is that it was
in part because Padilla was not provided a lawyer or read his Miranda rights when he was interrogated in military custody.
Right. I believe that. The same people who came up with the whole idea of "enemy combatant," who argued they could do whatever they damn well pleased because the president is Commander in Chief and this is war or have you forgotten 9/11, you terrorist lover, that this crew suddenly became bleeding-heart, touchy-feely advocates of Miranda rights and such. Sure they did.

A more credible explanation was provided in November 2005 by Glenn Greenwald, relying on a New York Times report:
[T]he 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 methods included waterboarding and similar
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.
Put simply, Padilla was tortured based on unreliable information obtained through torture. A nice little circle of utter moral corruption.

So if none of that figured in the trial, what was the evidence against Padilla presented there?

Not a whole lot. For one thing as, again, the New York Times reported, he wasn't even mentioned all that much by the prosecution. And what they did mention wasn't exactly slam-dunk material if you make the foolish assumption that truth rather than political vindication was the goal. For example, CNN said that
[d]uring the trial, prosecutors played more than 70 intercepted phone calls among the defendants for jurors, including seven that featured Padilla,
but in none of them did he speak "in code," as the prosecution insisted his co-defendants did, where "playing football" supposedly meant violent jihad and "zucchini" meant weapons. What's more, CNN, which for some reason just had to describe him in its opening sentence as a "former Chicago gang member," helpfully pointed out that the seven cases in which Padilla's voice was heard in court were the only such cases out of 300,000 taped conversations spanning several years. That is, while he was on 10% of the conversations played in court, this "star recruit" of this "terrorist cell" was actually heard on 0.0023% - yes, that's just over two one-thousandths of one percent - of the calls. Think maybe that gave the jury an improperly inflated sense of his involvement with whatever the other two might have been doing?

The other prosecution weapon against Padilla, of course, was the so-called "al-Qaeda terrorist training camp application," AKA the "mujahedeen data form." This form, supposedly filled out by Padilla, was found in Afghanistan with a bunch of others in a ring-binder. Padilla's fingerprints were on the form.
"The al Qaeda application virtually sealed his fate," said Jonathan Turley, a professor at George Washington University Law School. He compared the document's value as evidence to "putting a duffle bag with severed heads on the table."
But as Michael Caruso, Padilla's defense attorney, pointed out, the prints are found on the front and back of the form, but nowhere on the middle pages. That is consistent with someone handling the form, but not with someone filling it out or examining it. It is possible that someone else filled it out for him and he just handled it without looking at the inside pages? Yes. Does that possibility add up to proof beyond a reasonable doubt, especially since he also could have been shown (and so handled) the form at any time during his imprisonment? No.

What's more troubling is that you could even stipulate that Padilla did fill out the form (or, more accurately, someone filled it out on his behalf) and you still have a problem:
[Assistant United States Attorney Brian] Frazier said the government had proved beyond a reasonable doubt that Mr. Padilla had spent time in Afghanistan. In fact, it never produced a witness who saw him there.

Instead, prosecutors presented a phone call from September 2000 in which someone told Mr. Hassoun that “Ibrahim,” a supposed alias for Mr. Padilla, was in “the area of Usama,” which an expert witness described as code for Afghanistan.

In a call from October 2000, someone else told Mr. Hassoun that “Abu Abdallah,” another supposed alias for Mr. Padilla, was “currently in Afghanistan.”
So the "proof" consists of two references to two different supposed alises for Padilla saying someone is in Afghanistan. Again, it is possible? Yes. Is it proof? No.

Oh, and here's one more thing about that form: According to a prosecution witness, filling out that form does not mean one attended a training camp.
Yahya Goba ... who is serving a 10-year prison sentence, testified [on May 18] that he filled out a similar form before attending the al-Farooq camp run by al-Qaeda. This was just as prosecutors had hoped because his statement linked the form to al-Qaeda.

But then he testified that, after completing the form with false information as he was instructed, he was given the explicit opportunity not to proceed to the training. A person who filled out the form, his testimony indicated, did not necessarily attend the camp.
Here's another point: If Goba was instructed to enter false information, how does the accurate information about Padilla on the other form connect him to that one? Yet again, that may not mean anything but I do find it an intriguing question.

There are other odd things about the case. The Washington Post mentions two:
Noting that the FBI listened to the group's U.S.-based phone calls for six years, through 2000, defense attorney Ken Swartz asked jurors to consider why, if a murder conspiracy was unfolding, agents stopped taping the suspects and did not arrest them for another two years.
That is, he argued, the case appears to have been dropped - until 9/11 created "a desperate need to prosecute people for terrorism." Beyond that,
[i]n what analysts said was an anomaly for a murder conspiracy case, prosecutors did not present evidence of any specific murder plots involving the defendants - there were no bodies or intended victims. Instead, prosecutors depicted the conspiracy as al-Qaeda itself and said the connections between the defendants and the terrorist group amounted to their participation in the conspiracy.
That is, ultimately they weren't being tried for conspiracy for what they did or planned to do, but for being somehow connected with other people who were planning to do something. The wiretapped calls
indicated Padilla and his co-defendants talking about sending money and supplies overseas.
Not, it seems, weapons. They killed no one, planned to kill no one, supplied arms to no one. But they were supposedly connected to others who had killed and planned to kill. Therefore, they were conspiring to kill. How does this follow?
Conspiracy, the prosecutor's "darling," is one of the most commonly charged federal crimes. The offense of conspiracy is construed broadly by courts and, consequently, is applied by prosecutors to a variety of situations. "[I]t is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden."

Nonetheless, the essential features of a conspiracy - secrecy and concealment - make conspiracies difficult to prosecute, especially if the conspiracy is successful. Consequently, the law lessens the government's burden of proving the essential elements by requiring only a showing of the "essential nature of the plan and [the conspirators'] connections with it" to ensure that conspirators do not "go free by their very ingenuity." [From the American Criminal Law Review, March 22, 2007, article by Christian David and Eric Waters]
That is, all the prosecution had to do was to show that al-Qaeda is a murderous organization (hardly a challenge) and convince the jury that the defendants had any connection at all with it and poof! they are guilty of conspiracy to murder. Ain't conspiracy charges wonderful?

Finally, there is the jury itself. As the estimable Jeralyn Merritt at Talk Left wrote,
I'm dismayed that a jury would come back with a guilty verdict after a day and a half of deliberation in a trial where the evidence took three months to present. ...

It takes longer than that to comprehend the jury instructions. The instructions in Padilla's case were 42 pages long.... The jury's job is to determine whether the government has proved each and every element of the charged crimes against each defendant. The elements of the crimes are contained in the jury instructions. They are to apply the law as given in the instructions to the evidence presented at trial.

I doubt this jury bothered to review the evidence or the instructions. They didn't have time in a day and a half. It sounds to me like they took a straw vote shortly after picking a foreman and all were in agreement, so they went right to the verdict forms. I think they went on their gut feeling and emotion, not on the evidence or the law as instructed.

While I find the speed of the verdict abnormal and a dereliction of the jury's duty to review the evidence presented during the trial, it was probably predictable. This is a jury that coordinated their outfits in patriotic red, white and blue for the 4th of July. What more of a signal did you need? As Lew Koch at Firedoglake wrote at the time, I didn't think the defense had a chance after that.
The jury, it surely appears, had made up its mind before deliberations even started, doubtless stampeded by the image of "terrorists" in their midst. This was a torture-driven, politically-inspired, fear-based prosecution that at least in Padilla's case had a hell of a lot more to do with, as Swartz said, "a desperate need to prosecute people for terrorism" than with the law and even less with justice.

I've mentioned Padilla a number of times in connection with his journey through the courts - try searching on "Padilla" in the box at the top of this page - usually without making comments on Padilla himself, but I did finally offer my own speculation - noting that that's all it was (and is) - on May 20: I suggested that yes, he did get involved with al-Qaeda, but he was not a committed jihadist, it was more the result of
a surge of revolutionary daydreaming. That is, he favored imagining himself part of some grand, revolutionary movement - much like the Weatherpeople (née Weathermen) in the late '60s. Yes, some of them were into bombs and similar mayhem, but a greater number of those who considered themselves Weatherpeople thought breaking some windows was a dramatic blow against The Empire and many more beyond that simply liked to envision themselves as part of some revolutionary army engaging in the urban guerrilla warfare they were convinced was going to break out any day now. ...

So did Padilla return to the US as part of some terrorist plot or with some plan in his head? I very much doubt it. Did he return expecting he would be called to jihad on behalf of some terrorist group? Possibly, although "imagining" or "picturing" is probably the more accurate verb. If he was called on to perform a terrorist act, would he have done it? Of that I'm unsure. Perhaps he would, but I suspect that in the event he was asked to take part in some plot, it would turn out to be more like the plot to bring down the Brooklyn Bridge, which was abandoned before the FBI knew about it, or - at least as it appears so far - the Fort Dix plot, where it seems the informants did more to move it along than the accused did: In other words, a plot marked by a lot of talk, a lot of planning, a lot of scheming, a lot of casing the site, but very little of anything actually happening.
That is, yet again, speculation, based on an attempt to put all the "known"s and "probably"s into one coherent idea. But note well, I am not saying I am convinced Jose Padilla is innocent. I am saying he did not get a fair trial, the case was not proved beyond a reasonable doubt, and he faces life in prison because a fear-ridden jury stampeded into a verdict without due consideration, without even thinking.

I am also saying that he was arrested based on quite possibly false information extracted by torture, that he himself was tortured, he was denied both legal and more importantly human rights, and that the entire conduct of this case by the government, from top to bottom, side to side, beginning to end, has been a disgrace of a kind that in years to come, when our national sanity finally returns, will be looked back on as an example of how justice is not to be pursued.

Footnote: You likely heard that Attorney General Earblot Slagzone called the outcome "a significant victory in our efforts to fight the threat posed by terrorists and their supporters" while the White House Office of Mendacities called it a "fair trial and a just verdict." I didn't comment on those because I feel doing so is beneath the dignity of any sentient being.

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