Shameful: US Judge Increases Prison Sentence of Tortured US Enemy Combatant Jose Padilla

16.9.14

Of the tens of thousands of victims of the Bush administration’s novel approach to detention in the “war on terror” — which involved shredding the Geneva Conventions, the use of torture and indefinite detention without charge or trial, and, in some cases, extraordinary rendition —  few of the victims were American citizens, but three particular individuals need to be remembered, because they were not only tortured and held without charge or trial for years, but their torture and lawless detention took place on US soil.

The three men are Jose Padilla, Yaser Hamdi and Ali al-Marri (the latter a legal US resident rather than a citizen), and Padilla — a former Chicago gang member who converted to Islam, and was held as an “enemy combatant” on US soil from May 2002, when he was seized after returning him from Pakistan, until November 2005 — was back in the news last week when a judge extended to 21 years the sentence of 17 years and four months he received in January 2008, when he was convicted of conspiracy to murder, kidnap and maim people abroad, and providing material support for terrorism.

The sentence was a disgrace, as I explained at the time in an article entitled, “Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans,” because of Padilla’s torture, which had destroyed his mind, because the judge prohibited all mention of his torture during the trial, and because the “dirty bomb plot” he had allegedly been involved in had turned out to be non-existent, and his trial and sentence was based instead on his involvement in a handful of phone calls that made reference to jihad.

In September 2011, as I explained at the time, “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, 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.”

Padilla’s new 21-year sentence was handed down by Judge Marcia Cooke in the District Court for the Southern District of Florida last Tuesday, when she made a point of ordering him to remain held in a super-maximum security prison. As Reuters explained, when it came to Padilla’s original sentence, federal prosecutors had “agreed not to seek more than 30 years in prison for Padilla as long as his lawyers did not introduce records related to alleged harsh conditions he endured during the 3-1/2 years spent in a South Carolina military prison.”

Reuters use of the word “alleged” is, I believe, disingenuous, as Padilla’s torture was not disputed by the Supreme Court in May 2012, when, nevertheless, the court refused to find for Padilla in his case against torture architect John Yoo, the lawyer who wrote the 2002 memos justifying torture while working in the Office of Legal Counsel, the Justice Department office that, ironically, is supposed to provide impartial legal advice to the Executive Branch. Padilla was seeking $1 in symbolic damages from Yoo, but the Supreme Court wouldn’t allow him his day in court.

As the New York Times described it at the time:

In a 35-page opinion, the judges state that “Although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.” Mr. Yoo is therefore entitled to immunity.

And the torture? Well, the treatment that the Supreme Court “assume[d] without deciding” rose “to the level of torture” was as follows:

[H]e was subjected to prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness, including being “periodically subjected to absolute light or darkness for periods in excess of twenty-four hours”; extreme variations in temperature; sleep adjustment; threats of severe physical abuse; death threats; administration of psychotropic drugs; shackling and manacling for hours at a time; use of “stress” positions; noxious fumes that caused pain to eyes and nose; loud noises; withholding of any mattress, pillow, sheet or blanket; forced grooming; suspensions of showers; removal of religious items; constant surveillance; incommunicado detention, including denial of all contact with family and legal counsel for a 21-month period; interference with religious observance; and denial of medical care for “serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions.”

Despite all this, Judge Cooke still had the nerve to say, last Tuesday, before re-sentencing Padilla, “There are certain things we know and don’t know about how Mr. Padilla was held.”

Reuters noted that Padilla “sat shackled in a khaki jumpsuit and did not speak during the two-hour hearing.” His mother, Estela Lebron, who, in 2012, tried to sue former defense secretary Donald Rumsfeld and a number of high-ranking military officials for violating the US constitution, said after the sentencing, “Washington, D.C., George Bush, Barack Obama, all of the judges … they know that my son was tortured.” His brother, Tomas Texidor, also spoke, telling the court, “He’s not the man you think he is.”

I hope you share my disgust at the continuing disdainful treatment of Jose Padilla, and will share this article if you do. Below I am also making available some information about the other US “enemy combatants,” Yaser Hamdi and Ali al-Marri.

About Yaser Hamdi and Ali al-Marri

Yaser Hamdi, seized in Afghanistan in December 2001, and flown to Guantánamo on February 11, 2002, was born in 1980 in Baton Rouge, Louisiana, to Saudi parents, but moved to Saudi Arabia when he was a child. Nevertheless, he retained his US citizenship, causing consternation to the authorities at Guantánamo when his nationality was discovered, because only foreigners were supposed to be held without rights in Guantánamo.

Hamdi was moved from Guantánamo to a navy brig in Norfolk, Virginia, on April 5, 2002. He was later moved to a navy brig in Charleston, South Carolina, and, in total, he was held incommunicado for nearly two years until he was allowed to meet with a lawyer, in February 2004. The month before, the Supreme Court agreed to hear his case, Hamdi v. Rumsfeld, and on June 28, 2004 the court issued a hugely important ruling, in which eight of the nine justices agreed that the Executive Branch does not have the power to hold a US citizen indefinitely without basic due process protections that are enforceable through judicial review.

In a memorable passage, Justice Sandra Day O’Connor stated that “a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” She also wrote, “An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker.”

On October 9, 2004, after agreeing to renounce his US citizenship, Hamdi was released, and deported to Saudi Arabia, where he was subjected to severe travel restrictions.

Ali al-Marri, a legal US resident, was also held as an “enemy combatant” on US soil, from June 2003 until President Obama took office in January 2009, when he was moved into the federal court system, and in those early years he too was subjected to torture. In October 2009, he received an eight-year sentence as part of a plea deal, having accepted that he had come to the US as an al-Qaeda agent. Unlike Padilla, the judge in his case, Judge Michael M. Mihm of the District Court in Peoria, Illinois, “accepted a request from al-Marri’s lawyers to take into account the nearly eight years he ha[d] already spent in US custody, including the five years and eight months that he spent in almost complete isolation as part of the Bush administration’s aberrant ‘War on Terror’ policies,” as I explained at the time.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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18 Responses

  1. Andy Worthington says...

    On Facebook, Giacomella Jackie Milesi Ferretti wrote:

    How horrible Andy, no limit to cruelty in this empire!!

  2. Andy Worthington says...

    Thanks, Giacomella. Very good to hear from you – although unfortunately in connection with such a sad and brutal story.

  3. Andy Worthington says...

    If you like this, please bear in mind that this and the majority of articles I write are only possible because of your donations to support me. I’m currently fundraising, and if you can help out at all, I’d be very grateful: http://www.andyworthington.co.uk/2014/09/15/quarterly-fundraiser-can-you-help-me-raise-2500-to-support-my-guantanamo-work/

  4. Andy Worthington says...

    Mary Shepard wrote:

    This is unconstitutional. A sentence can be reduced by a court, but it’s unheard of that it would be increased.

  5. Andy Worthington says...

    I don’t know about that, Mary, as my knowledge of the US legal system isn’t that thorough. Any advice from lawyers would be appreciated. However, the bottom line is that Padilla is a Muslim accused of terrorism, and in the US these days that means that the normal rules no longer apply. Conviction rates are close to 100%. In addition, if you add the word “Guantanamo” to the words “Muslim” and “terrorism,” the hysteria increases. Padilla seems to have suffered from a hysteria akin to the Guantanamo effect. How, otherwise, are we to explain that everyone ignored the fact that he’s a US citizen who was tortured on US soil – a dangerous betrayal of the rights of US citizens that isn’t supposed to happen.

  6. Andy Worthington says...

    Mary Shepard wrote:

    I was a court clerk on the state level for 10 years. In criminal court the defendant has rights.

  7. Andy Worthington says...

    Mary Shepard wrote:

    This is why every american should be disgusted and demand this travesty of justice end.

  8. Andy Worthington says...

    Thanks, Mary, for that information. I agree absolutely that “every American should be disgusted and demand this travesty of justice end.” Readers may also be interested to know that the rot set in during Padilla’s trial in 2007. Prosecutors insisted on showing videos of Osama bin Laden, even though Padilla had never met bin Laden, and on July 4, which was a trial date, the jury came dressed in the stars and stripes.
    For Americans, there really should be no terrorism case more important than Padilla’s, because the Bush administration said they could hold him, without rights, and torture him with impunity, even though he was an American citizen, on the US mainland. First they came for a Latino Muslim convert and former gang member, but next …?

  9. Andy Worthington says...

    Mary Shepard wrote:

    Yes, even white people could be at risk. But racism plays a significant part in this case for sure.

  10. Andy Worthington says...

    Yes, racism and Islamophobia, Mary. As for the ramifications of the torture and incommunicado imprisonment of Padilla, it certainly played a part in the proposed military detention of US citizens in the National Defense Authorization Act (NDAA), which caused so much consternation a few years ago. However, the closest analogy was Guantanamo, because when it came to it, in Padilla’s case Bush wasn’t prepared to try and defend the detention without charge or trial of a US citizen. Nevertheless, he – and Yaser Hamdi – remain the two examples of US citizens tortured and held incommunicado, and, of course, it’s reasonable to assume that there were figures within the Bush administration who were perfectly happy with that scenario – just as it’s reasonable to assume that there are people now who would like to do it all over again if they could find the opportunity to do so.

  11. Andy Worthington says...

    Mary Shepard wrote:

    Generally, all the US would need for that is a right wing president in love with executive power.

  12. Andy Worthington says...

    Yes, I think your assessment about a future right-wing president is accurate, Mary. Unfortunately, although Obama hasn’t shown a great appetite for new imprisonments of people without charge or trial, which is good news, he has embraced drone killings, which is a whole new can of worms legally, morally and ethically. What we really need is for a return to the law as it was prior to 9/11.

  13. Andy Worthington says...

    Mary Shepard wrote:

    Padilla is innocent. That is the worst thing about this horror. Even the guilty shouldn’t be treated this way.

  14. Andy Worthington says...

    If I recall correctly, Mary, there are claims that Padilla had attended a training camp in Afghanistan, which to some people is sufficient for him to be condemned as a terrorist. I’ve never found that a convincing argument, however, and it’s genuinely disturbing that what he was supposed to have done, along with the British resident Binyam Mohamed – namely, to have been involved in a “dirty bomb plot” to attack a US city – was never true at all, as Paul Wolfowitz admitted the month after his capture, when, as I wrote in 2008, he said that “‘there was not an actual plan’ to set off a radioactive device in America, that Padilla had not begun trying to acquire materials, and that intelligence officials had stated that his research had not gone beyond surfing the internet.”
    See: http://www.andyworthington.co.uk/2008/10/16/us-justice-department-drops-dirty-bomb-plot-allegation-against-binyam-mohamed/

  15. Andy Worthington says...

    Mary Shepard wrote:

    Go back, too, and read about the Lackawanna Five, also innocent. Theirs was a test case for “material support” prosecution.

  16. Andy Worthington says...

    Thanks, Mary. Yes, that was a disgraceful case. I wrote about the six briefly back in 2008, when they had made statements in the military commission trial of Ali Hamza al-Bahlul: http://www.andyworthington.co.uk/2008/11/03/life-sentence-for-al-qaeda-propagandist-fails-to-justify-guantanamo-trials/

  17. paul siemering says...

    Jose Padilla is the one of the most totally expletive things in the whole history of the war of terror. I remember very well when it happened. It was only days into war, and he made the front pages. Jose the home grown terrorist. Jose had a dirty bomb they said, then the next day or the day after it was “no dirty bomb found”. It was time to send Jose back home. ok now i am not entirely sure about this but i think this was the day Bush discovered that hitherto unknown branch of humankind called the “enemy combatant”, and he hung this newly minted label on Mr. Padilla. since then it has been possible for anyone to get cuffed, hooded, and chained and thrown into prison and tortured, simply by having that label applied to him. Applied by the president or anyone he delegated.
    All the martyred men Andy has so diligently cataloged deserve some kind of memorial, but Jose Padilla has earned an especially handsome bronze statue, one that can be placed- well maybe somewhere you might find a statue of George Washington. That could be taken down, and Jose’s put proudly in its place.
    meanwhile the next judge who reviews his case must admit the government’s egregious error, and give Jose his pardon.

  18. Andy Worthington says...

    Good to hear from you, Paul, and thanks for recognizing the importance of Jose Padilla’s case. I wish many more US citizens recognized how, despite being a US citizen, he was deprived of all his rights under the Constitution.

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Andy Worthington

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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