For nine and a half years — almost as long as the “war on terror” has been providing an excuse for paranoia about Muslims in general — the case of US citizen Jose Padilla has demonstrated, to those willing to pay attention, that something has gone horribly wrong in the United States of America.
A former gang member and a convert to Islam, Padilla was arrested at Chicago’s O’Hare Airport, in connection with an alleged “dirty bomb plot” that never existed, on May 8, 2002, as he returned from Pakistan. Held for a month as a material witness, he was then designated an “enemy combatant” by President George W. Bush, and held in complete isolation in a military brig for the next three and half years — a process that also involved prolonged sensory deprivation. According to the psychiatrist Dr. Angela Hegarty, who spent 22 hours with Padilla in 2006, “What happened at the brig was essentially the destruction of a human being’s mind.”
In November 2005, fearing that Padilla might successfully challenge the government’s argument that it had the right to hold a US citizen indefinitely without charge or trial on the US mainland, and subject him to torture, the Bush administration suddenly indicted Padilla on charges of conspiracy “to murder, kidnap and maim people overseas,” and transferred him out of the brig. However, the injustice did not come to an end, as the courts then took over.
The charges against Padilla were based on the Bush administration’s claim that, along with alleged facilitators Adham Amin Hassoun and Kifah Wael Jayyousi, he was part of a Florida-based plot to aid Islamic extremists in holy wars abroad, and his trial took place in the summer of 2007. However, the judge, Marcia Cooke, refused to allow Padilla or his lawyers to make any mention of what had happened in the three and a half years that he was held in a legal black hole.
On August 16, 2007, the jury found him guilty, and on January 22, 2008, he received a sentence of 17 years and 4 months. This was in spite of the fact that the conspiracy in which he was reportedly involved had not taken place, and he had been involved in only seven of the hundreds of phone calls monitored by the FBI between his two co-defendants (who also received prison sentences). It also came about in spite of the fact that all that could be confirmed of his intent, in physical terms, was his signature on an application form for a military training camp in Afghanistan that he may or may not have actually attended.
Padilla appealed against his sentence, and so did the Bush administration, whose position — that his sentence was too lenient — was adopted by the Obama administration, which has repeatedly clung to the same position maintained by its predecessor when it comes to “national security” issues involving terrorism.
Two weeks ago, the latest phase in this alarming saga of paranoia, torture and injustice took place in Florida, when the Court of Appeals for the Eleventh Circuit not only backed the government against Padilla, but went so far as to vacate the original sentence (PDF), in effect telling the judge that she had been too lenient, and that she should revisit her ruling and hand down a much longer sentence.
The majority judges in the three-judge panel — the notoriously right-wing judges Joel F. Dubina and William Prior — claimed that Padilla’s original sentence was “substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors.”
The dissenting judge, Rosemary Barkett, was thoroughly critical of her colleagues’ actions, specifically noting that:
In reversing Padilla’s sentence, the majority fails to adhere to the principles articulated by the Supreme Court and this Circuit requiring appellate courts to accord the trial judge the “considerable discretion” granted district courts in sentencing and to guard against substituting its judgment for that of the trial judge.
Continuing, she referred to a precedent from the Eleventh Circuit, in which, in a case in 2009, it was noted:
We may vacate a sentence because of the variance only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the … factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. However, that we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.
Judge Barkett also took exception to her colleagues’ arguments that the trial judge had erred when she refused to give Padilla a sentence that was a minimum of 30 years, as they thought appropriate according to sentencing guidelines. Spelling out what judicial discretion means, she again referred to the precedent from the Eleventh Circuit in 2009, in which it was noted:
The district court must evaluate all of the … factors when arriving at a sentence, but is permitted to attach great weight to one factor over others. In assessing the factors, the sentencing court should remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.
Primarily, however, Judge Barkett was concerned to point out that a sentence less than the full maximum could be justified when, as in Padilla’s case, “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.”
Judge Cooke may have refused to allow any discussion of Padilla’s torture in his trial, but she did note that the conditions in which he was held “were so harsh that they warrant consideration,” and, as Judge Barkett noted, Padilla had been able to highlight his torture when he was being sentenced which was so harrowing that it was not easy to ignore, As she wrote in her dissenting opinion:
Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.
Judge Barkett also highlighted one more area in which her Eleventh Circuit colleagues had crossed a line, which concerned their allegations about his perceived susceptibility to recidivism. Even though, after serving his sentence, Padilla would be “in his mid-fifties,” and “subject to a twenty-year term of supervised release,” her fellow judges nevertheless concluded that Judge Cooke “erred in determining that Padilla will not pose a high risk of recidivism.”
Even though there was no evidence to support the judges’ fears, and even though they explicitly stated in their opinion that a trial judge is allowed to “find that recidivism generally decreases with age,” she noted that the majority “not only rejects that presumption for Padilla, but goes one step further and decides that trial judges may no longer consider, for anyone convicted of a terrorism-related offense, the likelihood that the risk of recidivism will decrease with age.”
Judge Barkett’s dissenting opinion was important, but unfortunately it did nothing to stem the institutionalized paranoia and injustice that has plagued Jose Padilla since he was imprisoned as an “enemy combatant” in May 2002.
I have never understood how far too many Americans accepted the torture of Jose Padilla — an American citizen on US soil, and not even a foreigner held at Guantánamo — without recognizing that, although a Latino Muslim convert was today’s “enemy combatant,” tomorrow it might be some other demonized American.
I was also astonished when no one cared that Padilla’s torture was not mentioned in his trial, and he received a sentence of seventeen years and four months for little more than a thought crime.
The ruling by the Court of Appeals for the Eleventh Circuit two weeks ago only adds to the bitter legacy of Jose Padilla’s brutalization at the hands of his own government, revealing how, for terror suspects held as “enemy combatants” — like Padilla, or, again, the prisoners at Guantánamo — all sense of proportion can be dismissed, even by those who should know better.
For these scaremongers, who are found in Congress as well as the courts, the end result of their sustained hysteria about terrorism is a twisted version of reality in which it is legitimate to complain that sentences are not long enough, and that the crime of terrorism is so unique and dangerous that judges can argue that there is no possibility of being reformed — even when, as in Jose Padilla’s case, the US government actually spent three years destroying his mind through torture, rendering him largely incapable of anything, and without anyone responsible for that being held accountable.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.
As published exclusively on Truthout.
Here are some comments from Truthout:
The dirty nuke that never was. Don Rumsfeld, The war criminal that really was. A nation that murders millions all over the planet for their natural resources and then talks about spreading democracy. Yassar, its a sick world, folks.
I’m only hoping that I’m still around when these pretend judges, pretend presidents and pretend politicians get their just desserts.
Art Brennan wrote:
The integrity of our judiciary is eroding from the top down. We should be ashamed of the three branches of our so-called government and we should demand that all people be treated equally under the law. Bush and Obama are shielding war criminals who have tortured and murdered people who never intended harm against any of the American people. Meanwhile, they are determined to crucify Bradley Manning, an American soldier of conscience, who has helped us all understand the corruption that has become a constant in US government.
S. Wolf Britain wrote:
The scaremongering about so-called “terrorism” and “terrorists” [I call them “so-called” because the “War (OF!) Terrorism” is a complete fraud, and most of the “terrorists” are patsies, “scapegoats” and/or “fall-guys” for the “false-flag” terrorism in actuality being carried out, and/or agent provocateured, by the U.S. government, other governments, “al-CIA-duh(!)” and/or other “intelligence” agencies] is “simply” an “excuse”. The matter is really political, with neo-liberal and/or neo-con corporate-fascist, activist judges delivering the unconstitutional, illegal and criminal extremism that their cohorts in crime demand in order to “legitimize” and “justify” the fraudulent, endless “War (OF!) Terrorism”, to use it as propaganda to convince most of the “American” people and much of the world of those false “justifications” and “legitimizations”, to prevent enough of the truth from getting out about the total fraud of that “war” and its “dangers” [where those dangers are actually coming from; i.e., in truth, the government(s) itself and/or themselves], to keep the truth from getting out about the so-called “terrorists” that they’re torturing and imprisoning (and their innocence in most cases), and in order to prevent this corporate-fascist madness, of completely destroying the U.S. and its sovereignty, and subjugating the entire world, including the U.S., under globalism and one-world government and religion, from being stopped. This is, in reality, what is truly going on, and what is intentionally being increasingly escalated.
In other words, in order to keep up the charade, they have to demonize these defendants, perpetuate the demonization, lock them up “forever”, or for as long as practicably possible, keep the public in unending fear of them, and keep that self-same public supporting, defending and complicit in all of this fraud. And they stop at almost nothing to do so, as in the particular case of Jose Padilla, his sentencing, the overturning of his appeal, and his being re-sentenced to an even longer term in the bowels of hell on earth that U.S. prisons, especially U.S. federal prisons, now are, while making it all appear “legal” and even “constitutional” (at least from their own perspective). “Welcome” to the globalist U.S. corporate-fascist “Fourth Reich” national security and totalitarian militarized police state that is only going to get worse and worse, as it already has been for the past ten years, if We the People don’t put a total stop to it. This is truly how dire the situation is; and the longer We the People allow this mass-insanity to go on, the less likely we are going to be able to stop it. Thus, we have little or no choice but to rise up en masse against all of it, make the rising up against it completely widespread such that it will get greater and greater popular support across all segments of U.S. and world society, including government and military, and not stop doing so to an ever-increasing extent until we have total victory. Otherwise, more and more of us are going to become “Jose Padillas”, and/or worse. Therefore, WE HAVE TO BE victorious.
So, where are we now as Americans? A nation of sheeple and racist pigs.
Thought Crimes will become more common as these “laws” are allowed to continue. Today Mr. Padilla would probably have been summarily executed without a trial since extrajudicial assassinations of U.S. citizens have now become acceptable. I do not expect the American public to show any more concern than they have to date…..at least until they start to realize that they are also targets for what they think and say.
The evil empire and no Darth Vader to hate – Ain’t that a bitch?
Darth Vader is behind every liberal and conservative who defends class tyranny, empire, fascism, torture, illegal aggression. Darth Vader is in the class ideology of both liberals and conservatives who betray the social masses for Fascism, corporatism, militarism.
And the evidence Padilla even committed a thought crime is?
When we consider chain of custody of evidence, and especially the credentials of those involved, it is unclear there is ANY credible evidence behind the US case. (A long wiki article fails to cite any actual evidence.) Testimony by spies, who have considerable ability to forge documents, is not credible. Testimony by the FBI which seized (probably without warrants) evidence related to the 9/11/2001 attacks, and failed to disclose the evidence, is not credible.
One of the worst things about the “justice” system is the continuous and widespread practice of judges excluding facts from being stated or stricken from consideration by juries.
The truth doesn’t seem to matter at all.
The goal “justifies” the exclusion of pertinent facts that juries should be considering. Mr. Padilla’s case is a prime example. The most right-wing, fascist jurors could hardly be unaffected by photographs of his being transferred from his sensory-deprived cell to the interrogation cells wearing vision blockers and hearing blockers.
Jose Padilla, too, should be a focus for “occupation” forces such as those at Wall Street and across the nation. The paranoia felt by the captains of finance is exactly the cause for the PATRIOT Act’s exclusion of all rights for mere suspects like Jose Padilla and Mr. Awlaki.
Christianity is a religion which has as its central story a deity who is falsely imprisoned, tortured and killed for being a terror threat to the Empire. In addition, in Matt 25 it says that the criteria of who goes to heaven or hell is based on how one treats “the least of these,” with explicit reference to prisoners. Do these people who make a big fuss about the US being a Christian Nation read their own Holy Books?
I don’t accept the torture of this person…I have consistently believed that he was another victim of the phony bush version of the GWOT.
Now we have the even more egregious Obama version of the GWOT — which is even more disgusting, dangerous and hypocritical…
Have I mentioned lately, “PISS ON ALL FLAGS!”
beats the Gestapo, they didn’t pretend to be democratic,
so as karma works, the end of these fascists will be more complete
I was following this story, but got sidetracked several years ago when I heard/saw something that gave me the feeling that it had been resolved in a just and civilized manner. I thought that justice had prevailed.
Where is this man’s Pardon, Mr. President?
I am ashamed to be among those that have forgotten and failed Mr. Pedilla. I am so ashamed!
I just cannot believe in our incredible, self-imposed Fascism. When will it all end. I voted for this president, but I can’t even utter his name anymore.
Give me some one to vote for that will straighten this all out, will be true to his word and will not sell me and America out.
Again, where is this man’s Pardon, Mr. President?
Let the historical record show, that if a police state is IMPOSED, it was with the help of JUDICIAL NAZIS, FASCIST POLICE FORCES, all the same class deformed middle layers, deformed proffessionals, serving their class hierarchies, plutocracy above them. SIEG HEIL to the judges who ruled that victims of torture cannot sue criminal officials at the top, or in stupid arguments ruled they could not rule on foreign policy matters, as it was “political” . Their complicity in LAWBREAKING, LAWLESSNES, is now complete in all three branches. That is how NAZISM, FASCISM came to Germany.
President Obama has now decided that he has the power to assassinate American citizens who he personally deems to be a “threat” without trial or even and an indictment. So, what is imprisonment and torture compared to that?
On Facebook, Shawna Marie Murray wrote:
Thanks for keeping us up to date on this important case, Andy.
You’re welcome, Shawna. Thank you for your interest in this hugely important, but largely overlooked case. To paraphrase Pastor Niemoller, “First they came for the Latino Muslim converts, falsely accused of being involved in a ‘dirty bomb plot'” …
Great piece, Andy. The number of people who care anymore about the human beings tortured, stuck behind bars, in solitary confinement, etc., has shrunk and shrunk such that I’m not sure I even recognize the social world in which I ostensibly exist. Your work, and that of a few others, reminds me that not all is lost, that fundamental decency, a passion for justice, and a commitment to truth still exists.
Padilla was a guinea pig, and I should add that he was most likely also given, as he claimed, mind altering drugs as part of his torture. But except for myself and literally only one or two people in America, no one cares one whit that a government investigation into such drugging was classified and filed away never to be seen. What does it matter? Truly strange, strange times. One finds it difficult to care about the fate of such a society.
Thanks, Jeff. Lovely to hear from you, even if the circumstances — as ever — are dark, and, as you note, getting darker in many ways.
The hope for a better world, and the impulse to achieve it, seems for the most part to be outside the mainstream, in “Occupy Wall Street” and the movement it’s inspiring, and the antiwar protests — tomorrow! — for the 10th anniversary of the occupation of Afghanistan.
My hope is that this understandable anger and discontent — and people motivated to rediscover values that matter — may steadily build and come to something, but the struggle is daunting, and in the meantime everything that truly counts — and the torture and injustice we keep examining is included in that — does appear to be more marginalized than ever.
Do keep up the good work, though. The trouble is, you see, we really can’t let them grind us down …
Shawna Marie Murray wrote (in response to 18):
You are right about us all being at risk; grave damage has been done to a sense of democracy, fair play and common purpose as well.
Yes indeed. Thanks again, Shawna.
George Kenneth Berger wrote:
I will digg and share this later, Andy.
Thanks, George. Much appreciated.
George Kenneth Berger wrote:
My pleasure. This is a particularly brutal case.
It is indeed, George — and I’m delighted that there’s an audience out there for it, via my site (where it continues to be shared) and through its original publication on Truthout, where it has now been “liked” by nearly 500 people.
George Kenneth Berger wrote:
Good to hear, Andy. I have several hundred FB friends. Like me, few would have known the full details before I read and shared it. I used “brutal case” in my heading.
Such a pity that it’s necessary to have to draw attention to Padilla’s case, George, but I’m glad you have. To me, it’s one of the key indicators of a slide towards a military state that really should be extremely alarming — as, I think, was the recent decision to assassinate Anwar al-Awlaqi, and the classified Justice Department opinion allegedly authorizing it. My take on that particular story will be along soon.
[…] Guantánamo Files: WikiLeaks and the Prisoners Released in 2006 (Part Four of Ten) 3. Jose Padilla: It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice 4. Anwar al-Awlaki: Death from Afar: The Unaccountable Killing of Anwar Al-Awlaki 5. WikiLeaks: The […]
[…] a citizen indefinitely. Essentially, what happened to Jose Padilla, a Latino Muslim who was held without charge in complete isolation for three and a half years in a military brig, is now much more […]
[…] detain a citizen indefinitely. Essentially, what happened to Jose Padilla, a Latino Muslim who was held without charge in complete isolation for three and a half years in a military brig, is now much more […]
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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