In Padilla interrogation, no checks or balances
Oversight of the executive branch regarding treatment of terror detainees remains inadequate, say legal analysts.
When admitted 9/11 mastermind Khalid Sheikh Mohammed complained in a Guantánamo Bay hearing earlier this year that he'd been tortured by US interrogators, the presiding military officer assured him the charges would be investigated.
Two US senators who watched the hearing later praised the officer's action. "Allegations of prisoner mistreatment must be taken seriously and properly investigated," Sens. Lindsey Graham (R) of South Carolina and Carl Levin (D) of Michigan said in a joint statement. "To do otherwise would reflect poorly on our nation."
In contrast, when alleged Al Qaeda operative Jose Padilla, a US citizen, claimed in 2006 that he had been tortured, no similar effort was undertaken.
No senators called for an investigation or a hearing. No one promised a Defense Department inspector general inquiry or a Justice Department probe. The federal judge then presiding over Mr. Padilla's criminal case in Miami refused to permit further inquiry into the torture allegation, and instead ordered Padilla's lawyers not to raise the issue during trial.
The difference between Mr. Mohammed's experience and Padilla's experience highlights a near total lack of independent oversight involving the secret military detention and interrogation of a US citizen on American soil.
It is unlikely anyone outside a select group of military officials knows the full story of exactly what was done, or wasn't done, to Padilla in the name of national security.
But instead of aggressively examining the torture allegation, the Bush administration has fought hard to keep Padilla's treatment in military custody veiled in secrecy.
"The treatment of Padilla ranks as one of the most serious abuses after 9/11," says Jonathan Turley, a professor at George Washington University Law School in Washington. "This is a case that would have shocked the Framers. This is precisely what many of the drafters of the Constitution had in mind when they tried to create a system of checks and balances."
Human rights activists, too, are alarmed by what they see as the continuing lack of oversight and accountability. "What happened to [Padilla] in military custody will be seen by history as one of the more shameful acts this country has taken against one of its own citizens," says Hina Shamsi, deputy director of the Law and Security Program at Human Rights First.
Padilla was held without charge in military custody at the US Naval Consolidated Brig in Charleston, S.C., for more than 3-1/2 years. He was allegedly subjected to prolonged isolation, sensory deprivation, and stress positions, among other harsh interrogation tactics. Mental-health experts who have examined Padilla say the coercive techniques left him with severe psychological damage that may be permanent. Their observations are detailed in three reports filed in Padilla's criminal case.
Allegations deemed not credible
Defense Department officials say they believe Padilla is faking his psychological conditions. No similar detailed psychological examinations, however, have been conducted by the government.
Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, says suggestions that Padilla is a different person after his years in military custody are not evidence of illegal abuse. Simply being held in a federal prison can change an inmate's personality, but that doesn't mean prison officials tortured him, Commander Gordon says. "I bet I would be different," he says.
In terms of oversight, Gordon says, Defense Department personnel stand ready to fully investigate any credible allegations of torture or other illegal conduct at the brig. "Credible allegations of illegal conduct are taken seriously," he says. "In this case we don't believe that to have occurred."
In Mr. Mohammed's case, his allegations were referred to the inspector general of the Central Intelligence Agency, which will neither confirm nor deny the existence of such a probe.
Even if an oversight investigation verified some or all of Padilla's claims, it is unlikely that he would find himself a free man anytime soon. Padilla was convicted in a terror conspiracy trial in Miami on Aug. 16. He is set to be sentenced in December and faces up to life in prison.
Apart from the criminal case, a separate group of lawyers has filed a civil lawsuit in South Carolina seeking a judicial ruling declaring the US government's treatment of Padilla in the brig illegal and unconstitutional.
Justice Department lawyers are expected to ask that Padilla's suit be thrown out of court because the litigation would likely reveal state secrets about Padilla's interrogation, legal analysts say. Such a move would again prevent public scrutiny of the torture allegations, these analysts say.
"If they invoke the state secrets privilege, that is the ultimate trump card," says Douglas Kmiec, a professor at Pepperdine University Law School in Malibu, Calif. So far, every time the government has invoked the state secrets privilege in recent years, the case has been thrown out of court, he says.
Civil libertarians and human rights experts say oversight and accountability are important because Padilla's treatment by the military could happen to others.
"This is a dangerous precedent," says Douglas Johnson, executive director of the Minneapolis-based Center for Victims of Torture. "Padilla may well deserve to be put away for the rest of his life, but some key principles of American law and culture were violated, and that means that other people could also be in danger of their rights being violated."
The Center for Victims of Torture seeks to provide a healing environment for those who have faced physical and psychological torture overseas. Dr. Johnson says patients at the center have faced many of the same techniques allegedly used against Padilla.
"Isolation has been a consistent methodology of repressive regimes [overseas]," he says. "It is very, very frightening that our government has chosen to use this methodology."
Padilla's claims are different than those of most people who say they've been tortured. More substantive than merely a verbal accusation, the three psychological reports and Padilla's degraded mental condition represent direct evidence of abuse, say experts in the treatment of torture victims.
"There is a valid and objective way to evaluate all this," says Scott Allen of Physicians for Human Rights and author of a recent PHR/Human Rights First report, "Leave No Mark," that discusses how US interrogators may face criminal liability in the future.
PHR experts are assembling psychological reports and conducting exams similar to those done in the Padilla case, he says. They are gathering evidence from at least seven former detainees at the Abu Ghraib prison in Iraq and the US detention camp at Guantánamo Bay, Cuba.
The report calls on the executive branch to stop using harsh interrogation tactics and to release all government documents related to such tactics. In addition, it asks Congress to exercise its oversight role and ban these interrogation methods.
Congress's oversight record
Two years ago, Democrats in Congress championed a proposal to establish a 9/11-type independent commission to investigate allegations of detainee interrogation abuses. The measure was sponsored by Senator Levin, who complained that the Republican-controlled Congress had failed to aggressively carry out its oversight responsibilities.
Republican opponents of the Levin amendment said the Defense Department had already conducted 12 major investigations into detainee treatment, and Congress had conducted 30 open hearings and 40 closed hearings.
Levin countered that the investigations and hearings had been selective and that large areas – including the legality of certain interrogation techniques – had never been investigated.
"These issues are not going to go away. They can't be swept under the rug," Levin said during the floor debate. "With each passing day, we have new revelations of detainee abuses."
The Levin amendment was defeated in a largely party-line vote in November 2005. The tally: 43 to 55.
A year later, Democrats took control of both houses of Congress. So far, the Democratic leadership has yet to undertake any significant public oversight – such as hearings, investigations, or legislation – on the issue of detainee interrogation.
Political analysts say civil liberties in the war on terror is not a winning issue for Democrats seeking to win the White House in 2008 and to expand their majorities in both houses of Congress.
The result: The conditions of Padilla's interrogation and confinement may remain shrouded in secrecy.
"The Framers believed they had created an independent judiciary and Congress that would check this kind of abuse by the executive [branch]," Professor Turley says.
"In the absence of judicial review, it is possible for Congress to seek legislative guarantees to prevent a repeat of this abuse," he says. "But Democrats appear terrified that they will be accused of supporting a terrorist."