Los Angeles Times
December 17, 2006
His lawyers, alleging abuse, want him freed. A judge may hold the first such hearing on the treatment of detainees.
By Richard A. Serrano, Times Staff Writer
WASHINGTON — A federal judge in Miami will soon make one of the most important rulings in the Bush administration's war on terrorism and decide whether to publicly explore evidence that an accused terrorist was brutally mistreated for years inside a one-man isolation cell.
The allegations involve Jose Padilla, a U.S. citizen once portrayed as one of the most dangerous Al Qaeda operatives ever arrested. Padilla's lawyers have asked U.S. District Judge Marcia Cooke to set him free because of the abuse they say he suffered.
Though federal judges rarely dismiss criminal charges before trial, the allegations are so extreme that they may prompt Cooke to hold a pretrial hearing in what would be the first public court examination into how detainees were handled after the Sept. 11 attacks.
Padilla's lawyers also hope to shut down his case by proving that his incarceration as an "enemy combatant" at a Navy brig for more than three years without charges had left him incompetent to stand trial.
Any hearing before the trial, scheduled for next month, could prove explosive, as defense lawyers are leaning toward putting Padilla on the witness stand. That too would be a first — a Sept. 11-era detainee testifying about his treatment.
He has told his lawyers and mental-health experts that he was held without sunlight, adequate food or a clock, and was injected with truth-serum drugs to coerce him to talk. At times, he said, his wrists and torso were chained to the cell floor.
Further heightening the drama is a defense request to question military officials about conditions at the brig. Some officials have expressed concerns in written reports that Padilla and two other enemy combatants held in the brig outside Charleston, S.C., were abused. 'No merit whatsoever'
Federal prosecutors repeatedly have denied that Padilla was mistreated. "Mr. Padilla's allegations of torture have no merit whatsoever," prosecutors said in court filings.
Padilla was arrested in 2002 on suspicion of trying to detonate a radioactive "dirty bomb" in the U.S. The Department of Justice, led by then-Atty. Gen. John Ashcroft, castigated Padilla as a major terrorist menace but eventually scaled back its assessment and filed lesser charges of conspiracy.
Prosecutors say they can prove he was part of a "North American terror support cell" that sent money and supplies to terrorists in Bosnia and Chechnya. The government is urging the judge to deny Padilla's dismissal request — without airing the claims in a court hearing.
The judge, a former federal prosecutor and a defense lawyer appointed to the bench by President Bush, has scheduled a meeting Monday with both sides, and could rule then on the torture and competency questions.
Should she grant a hearing into the allegations, that would mark a major victory for criminal defense lawyers and human rights activists who have said the administration routinely violated the constitutional rights of detainees arrested after the 2001 terrorist attacks on New York and the Pentagon.
"This is a very fair judge," said Neal Sonnett, a Miami attorney who chaired an American Bar Assn. task force on enemy combatants. "She's very bright. She knows the law very well. And I think this is the kind of case in which the court understands that the world is watching." Chances of dismissal
Sonnett and other legal experts noted that dismissal motions seldom are granted because they deny prosecutors the chance to put on their case.
"A lot of bad things were probably done to Mr. Padilla," said Carl Tobias, a law professor at the University of Richmond in Virginia who has monitored many of the terrorism cases. "But that doesn't mean you automatically get a dismissal."
Padilla, 36, was born in Brooklyn, raised in Chicago and, after embracing Islam in South Florida, moved to Egypt where he allegedly became involved with terrorist groups.
He was taken into custody in May 2002 at Chicago's O'Hare International Airport after stepping off a plane from Zurich. Law enforcement officials said his arrest broke up a plot in which Padilla was sent back to attack targets in the U.S.
In June 2002, Bush designated him an "enemy combatant," and the military put him in the Navy brig. In November 2005, he was charged with aiding terrorists abroad. Last January, he was moved to a federal jail in Miami to await trial. He was moved into the federal system before the Supreme Court could rule on whether a U.S. citizen could be indefinitely detained as an enemy combatant.
Andrew Patel of New York, one of the defense lawyers, said the defense was not allowed into the brig until March 2004, only to discover that Padilla was alone in a two-tiered wing of 10 cells.
"Mr. Padilla was the only person housed in that unit," Patel said. "He had no contact with other human beings."
Patel said the cell windows were blocked; no natural light entered the 9-by-7 space. There was no mirror, no clock, no calendar: just a slot in the door for food and a steel platform for a bed.
Sometimes Padilla suffered deep chest pains and feared a heart attack. "He could neither breathe nor move," Patel said.
Another time, Patel said, Padilla smelled a "terrible odor" and believed that guards had pumped a noxious gas into the cell.
He was often kept awake by loud noises or low temperatures, Patel said. Other times, he says, he was given a truth serum that lawyers said they believed was some form of LSD or PCP.
He coughed up blood, Patel said. He repeatedly scratched the back of his hand. He rapidly blinked his eyes. Goose bumps dotted his arms and neck.
Sometimes he sat bolt upright in his chair, as "if he had been stuck by a cattle prod." He showed little emotion about his trial, Patel said, seeming more like "a piece of furniture."
When Patel tried to discuss the case, he said, Padilla would beg off. "Please, please, please," he would say, fearful that if he helped his lawyers, he would be returned to the brig and solitary confinement. Observations from experts
Dr. Angela Hegarty, a New York psychiatrist who examined Padilla for the defense over five days in June and September, told the judge the prisoner often "begged his guards not to put him in the cage."
She said Padilla could not understand that his trial was drawing near. "He has large memory gaps related to his detention, and he is unable to place events in chronological order," she said.
She concluded that Padilla, whom she said believed he was going to die during his detention, is suffering from post-traumatic stress disorder. "Mr. Padilla," she said, "periodically concludes that no matter what, win or lose, he will be going back to the brig, where he will die."
The defense team filed a new report Wednesday from Patricia Zapf, a clinical psychologist in New York, who examined Padilla twice in October. She concluded he suffered from depression and paranoia, and had "difficulty with memory, attention and concentration."
She said he told her that he did not want to testify — that he feared it would be too much like what he underwent during interrogations. Padilla "appears to be in a fragile psychological state," Zapf concluded.
Though it is not clear whether the government has had its own experts examine Padilla to counter what the defense has learned, prosecutors have insisted Padilla was never harmed.
"The government in the strongest terms denies Padilla's allegations of torture — allegations made without support and without citing a shred" of evidence in court, they told the judge in court filings. They declined to discuss the case outside of the courtroom.
Government lawyers also told the judge that she should rule on Padilla's competency before deciding whether to hold a hearing into the torture allegations — pretrial skirmishing that could delay the long-awaited trial.
Indeed, much is weighing on the judge. Cooke, 52, began her career as a Legal Aid attorney and public defender in Michigan and worked through most of the 1990s in the U.S. attorney's office in Miami. Bush appointed her to the federal bench in November 2003; she was confirmed the following May.
She has proved decisive in the Padilla matter already, ruling in August that there were overlapping charges filed against him. She dismissed the most serious conspiracy charge, which could have brought a life sentence, and left intact two counts that could get Padilla 20 years for providing material support to terrorists.
Twenty years is far less than what the government wants; they have appealed her decision.