US argues harsh treatment shouldn't undercut Padilla case

By , Staff writer of The Christian Science Monitor

The case of suspected Al Qaeda sympathizer Jose Padilla is raising fundamental questions about whether a US citizen's harsh treatment – and alleged torture – while in US military custody should prevent his later prosecution in the criminal-justice system.

Lawyers for Mr. Padilla charge that he was tortured while being held for three years and eight months as an enemy combatant in a military prison in Charleston, S.C. The lawyers are asking that all criminal charges against him be dropped because of the government's alleged illegal and abusive treatment.

Federal prosecutors responded for the first time this week to the accusations, telling US District Judge Marcia Cooke in a written motion that Padilla was not tortured or abused. But even if he had been tortured, they added, there is no legal support for Padilla's request that all charges against him be dismissed.

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"Padilla has not cited a single precedent absolutely barring a federal criminal prosecution because of alleged due process violations committed during a prior military detention," writes Assistant US Attorney Russell Killinger.

Padilla's case, pending in US District Court here, highlights the murky intersection between the Bush administration's open-ended interrogation of enemy combatants to collect intelligence and the subsequent transfer of an enemy combatant who is also a US citizen to face punishment in the criminal-justice system.

Padilla is best known for allegedly plotting with Al Qaeda to detonate a radiological "dirty bomb" in a major US city. But when he was transferred from military custody to the civilian court system in January to face criminal charges, the dirty-bomb plot and other detailed information obtained by military interrogators was excluded from the indictment.

Instead, he is facing a more general charge that he engaged in a loosely-defined conspiracy by becoming a recruit to help wage a violent jihad. Padilla denies the charge.

Padilla's lawyers first made their torture allegations in court papers filed last month. They said military interrogators engaged in torture – including administering the mind-altering drug LSD – to try to force Padilla to reveal all he knew about Al Qaeda.

"He was assaulted, threatened with imminent death, and subjected to myriad other deprivations during his captivity at the Naval Brig," according to a legal motion filed by Acting Federal Public Defender Michael Caruso, one of Padilla's appointed lawyers. "He was drugged and subjected to cruel interrogations" using stress positions, forced hypothermia, and sleep deprivation, the brief says.

But the most painful and damaging tactic, the brief says, was extreme isolation in a windowless 9-by-7-foot cell. "Extended periods of solitary confinement are the most severe deprivation of liberty – short of the death penalty – that the government imposes," Mr. Caruso writes.

Padilla's lawyers are asking Judge Cooke to dismiss all charges against Padilla because of what they say amounts to outrageous government conduct.

Prosecutors dispute the charge. "The government in the strongest terms denies Padilla's allegations of torture – allegations made without support and without citing a shred of record evidence," writes Mr. Killinger.

He adds, "Even if this court were to believe all of the unsupported allegations in Padilla's motion and thereby concluded that he suffered 'shocking' due-process violations during his military detention (a claim the government disputes emphatically), dismissal of the indictment would nevertheless be unwarranted as a matter of law."

Killinger says the correct remedy for Padilla would be to sue his military interrogators in federal court for civil damages, or to seek government prosecution of the alleged torturers. But Killinger says that Padilla "is not entitled to a free pass from his own criminal conduct."

At issue in the defense motion and the prosecutor's reply brief is what standard the court should apply in assessing whether the government acted so outrageously in its treatment of Padilla that the case must be dismissed.

While the facts of Padilla's harsh treatment (if accurate) favor the defense, existing legal precedents favor the government.

The 11th US Circuit Court of Appeals, which covers Miami, has been reluctant in the past to dismiss cases based on allegations of outrageous government conduct. Appeals court judges in the First, Sixth, and Seventh circuits have gone even further, declaring that the outrageous government conduct defense does not exist, according to the prosecutors' brief.

Defense lawyers began their argument in their brief not with a quote from a learned legal scholar but instead from philosopher Friedrich Nietzsche. "Whoever fights monsters should see to it that in the process he does not become a monster."

Padilla's lawyers acknowledge that outrageous government conduct motions are rarely justified, and thus rarely granted. But they add: "The treatment of Mr. Padilla, a natural born citizen of the United States, is a blot on this nation's character, shameful in its disrespect for the rule of law, and should never be repeated."

Prosecutors say Padilla was lawfully detained by the military as an enemy combatant and that no information obtained during his interrogations will be used as evidence against him at his trial.

Analysts who closely follow the case say the torture allegation is a potential blockbuster. "I think the judge is going to take a real serious look at whether this case should go forward or not," says David Oscar Markus, president of the Miami Chapter of the Florida Association of Criminal Defense Lawyers. "This judge has shown that she is not just going to roll over for what the government says. She's already dismissed some counts in the indictment and she is looking at what they have done very seriously."

Mr. Markus says the lack of existing legal precedents supporting dismissal may not matter in the Padilla torture issue. "There is no precedent for something like this because nothing like this has ever happened before," he says.

How the issue plays out from here may depend on whether Padilla's lawyers are able to present evidence of Padilla's torture in court, Markus says. Medical records from the Navy brig where Padilla was held in South Carolina could offer independent and reliable evidence of abuse, if he was provided medical care as the government claims.

"Padilla's conditions of confinement were humane and designed to ensure his safety and security," the government's brief says. "While in the brig Padilla never reported any abusive treatment to the staff or medical personnel."

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