Latest Legal News from the Criminal Courts in Houston, Texas

July 11, 2007

Evidence of Torture may become Public at Padilla Trial

In May 2002 Jose Padilla arrived at the Chicago O’Hare International Airport abroad an international flight from Zurich, Switzerland where he was taken into custody by federal law enforcement authorities on a Material Witness Warrant. The federal authorities had allegedly obtained information, through torture interrogation, from al-Qaida operative Abu Zubaydah that implicated Padilla in suspected terrorist activity against the government of the United States. The U.S. Justice Department released information that Padilla was part of an al-Qaida plot to detonate a radioactive “dirty bomb” in an American city.

Being a United States citizen, Padilla was not sent to Guantanamo Bay where “enemy combatants” (or “suspected terrorist detainees”) are held. He was placed in a Naval brig in Charleston, South Carolina where he was tortured to the point that he lost his mind, according to his attorneys.

Like so many of the government’s cases involving “terrorism” investigations, the “dirty bomb” case fizzled. The government eventually moved away from that case and charged Padilla, along with two co-defendants, in Florida with filling out a form in 2000 to join an al-Qaida training camp in Afghanistan.

U.S. District Court Judge Marcia Cooke recently rejected an effort by Padilla’s attorneys to have the Florida-based charges dismissed because of the torture he endured at the Naval brig while in military custody. The judge, however, issued a caveat to the government that “should any Naval Brig statements be introduced at trial … the circumstances surrounding the making of those statements may be relevant and hence admissible.” The ruling paved the way for the government to proceed with its case against Padilla based on the theory that he was involved in a terrorism conspiracy and provided material support to a worldwide network of Islamic extremist groups.

Padilla was fortunate enough to be able to present his torture claims in a United States court because he is an American citizen housed in a penal facility within the boundaries of this country. Dozens of “detainees” at the Guantanamo bay facility are involved in an ongoing hunger strike. Some have been forced fed through tubes inserted into their noses. The hunger strikers are housed in a $38 million dollar maximum security unit at Guantanamo known as “Camp 6” where, as attorneys charge, they are routinely tortured with extreme isolation, noise, glaring lights, and a litany of verbal and physical abuses.

“The reports about conditions at Camp 6 are deeply disturbing, and holding people indefinitely without legal process or access to family is an invitation to disaster,” said Hina Shamsi, a lawyer with Human Rights First.

Under a recent decision by the D.C. Circuit Court of Appeals in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007)(and refused a review by the U.S. Supreme Court) and the Military Commission Act of 2006 passed by Congress, the detainees cannot challenge these or any other torture conditions in a United States court. The MCA strictly prohibits any challenge, either about the fact of detention or conditions of confinement, from any “detainee” (or “enemy combatant”) held in detention outside the boundaries of the United States. These prisoners effectively live on an island without any constitutional protection.

Repeatedly condemned, the prohibition against torture has been woven into the fabric of our legal system. The United States Supreme Court in 1940 said that the use of evidence obtained by “the rack, thumbscrew, the wheel” cannot be sanctioned. Chambers v. Florida, 309 U.S. 227, 237-38 (1940). Twelve years later the Supreme Court reaffirmed the principle that extracting evidence which offends “those canons of decency and fairness which express the notion of justice of English speaking peoples even toward those charged with the most heinous offense” is unacceptable in our legal system. Rochin v. California, 342 U.S. 165, 169 (1952).

The Framers of our Constitution and sacred Bill of Rights loathed the very notion of torture. This collective loathing “sprang in large part from knowledge of the historical truth” that an individual’s guilt or innocence “could not be safely entrusted to secret inquisitional processes …” Chambers, 309 U.S. at 237. Seizing people, holding them without charges indefinitely, and extracting confessions from them through physical and mental coercion is repugnant to every concept of constitutional and civil liberty held sacred in our society.

Seventy years ago the Supreme Court dealt with a case where local Mississippi law enforcement authorities extracted confessions from criminal defendants by stripping, whipping, and hanging them from a tree. Brown v. Mississippi, 297 U.S. 278, 282-87 (1936). The court said that this sort of governmental action was antithetical to a “modern civilization which aspires to an enlightened constitutional government.”

The “war on terror” has attempted to bury that constitutional precept. The “detainees” at Guantanamo and terror suspects taken into criminal custody are routinely subjected to the physical, mental and psychological abuse that no decent freedom loving country should condone, especially, a great country like the United States that so loudly proclaims the basic precepts of freedom, democracy and the rule of law.

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