Curt Anderson at AP (accessed via Chicago Tribune website) reports on the latest in the Jose Padilla case, and it's a shocker:
A federal judge refused to dismiss terrorism charges against a suspected Al Qaeda operative over claims he was tortured in U.S. military custody, but the possibility that the allegations could resurface at his trial was left open.
The legal matters rest on questions of admission of evidence and Fourth Amendment issues, but the political matter rests on the use of torture on an American citizen in a blockbuster case that could come to trial next week.
US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling last Monday (made without a hearing) rejected Padilla's attorneys' motion for dismissal of Padilla's case due to "outrageous government conduct". Padilla has been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an "enemy combatant". Original charges of constructing a "dirty bomb" have been dropped.
In his motion, Mr. Padilla argues that the conditions of his military detention and interrogation while at the Naval Brig "shockthe conscience" in violation of his due process rights. Padilla claims that the mistreatment he allegedly suffered while at the Naval Brig divests the government of its jurisdiction to prosecute him for the crimes charged in the indictment.
The charges of mistreatment include (as summarized by a local paper covering the case -- emphases are mine):
... isolation, prolonged sleep deprivation, exposure to extremely cold temperatures and shackling in "stress positions" for prolonged periods of time, Padilla's lawyers said.
The lawyers also alleged he was threatened with execution and forced to consume LSD or some other mind-altering drug "to act as a sort of truth serum" during repeated interrogations.
Judge Cooke then made a startling admission in preparation of dismissal of the case. She took Padilla's statements to be true! From the decision:
In its Response to Mr. Padilla's Motion to Dismiss [the Indictment] for Outrageous Government Conduct the government argues that the "motion fails as a matter of law." Gov. Resp. p. 5. In order to assess whether Padilla's motion is legally insufficient, this Court must accept its allegations as true, and determine whether he has stated a cognizable claim. Thus, while this Court has not held a hearing, nor made any findings with regard to Padilla's claims of abuse and torture at the Naval Brig, for the sake of this Order, this Court will accept Padilla's allegations as true.
But then, Judge Cooke denies that this abuse rises to sufficient outrageous conduct to throw the case out of court. Why? Because the government claims it will not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no "remedy" against the government. (His habeas petition was rejected almost three years ago.)
Michael Froomkin, Professor at University of Miami School of Law, has an interesting take on the decision, insisting that a basis for appeal has been laid.
In summary, as I understand it, the Judge isn't exactly saying whether the government's conduct here was or was not outrageous, but rather that even assuming the truth of the allegations that it was, the only relief to which Padilla is entitled in his criminal defense is exclusion (or, amazingly, a hearing on exclusion!) of any evidence gathered while he was being held and tortured....
That said, I think that to the extent Judge Cooke is relying on her reading of Toscanino for the proposition that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct, that is neither an obviously correct reading of that decision nor an obviously correct decision on first principles either.... At least in my quick reading of that case, what the relief should be is left pretty wide open, especially in light of this passage:...the Supreme Court's expansion of the concept of due process... now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court's acquisition of power over his person represents the fruits of the government's exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, [FN4] which guarantees "the right of the people to be secure in their persons... against unreasonable... seizures," the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.
... we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud.
Of course, Padilla was not kidnapped, he was only arrested, placed in solitary confinement for years, drugged, tortured, made insane, and set up for dubious prosecution. At the close of Judge Cooke's analysis, she sets up the final Orwellian conclusion:
Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.
In other words, the government can now arrest you, Mr. and Ms. U.S. Citizen, and torture you terribly, and the torture victim has no remedy as long as the government doesn't use any evidence gathered during the torture period against you. (And by "torture" I mean any cruel, inhuman, or degrading treatment that "shocks the conscience" of any individual that suffers it, which is the current standard in U.S. law.)
This isn't Judge Cooke's first outrageous decision in this case, as the recent Washington Post article on the case makes clear:
In a ruling with broad implications for the constitutional rights of U.S. citizens in their homeland, Cooke found last month that Padilla's right to a speedy trial did not begin until he was charged in the civilian court. The time spent without being charged in the military brig did not count.
Forget the arguments about who would or would not support torture. The legal arguments to allow U.S. torture domestically are already being put into place. The "war on terror" abroad is coming home with a vengeance, and we must do all we can do to stop its horrifying attack on all our civil liberties.
Jose Padilla should be freed, and torture made "outrageous government conduct" sanctioning freedom of the accused.
Update: [4:35pm PDT] Some commenters [over at Daily Kos] have correctly pointed out that Mr. Padilla has recourse to a civil remedy against his persecutors at some date in the future, and Judge Cooke also points this out. As I noted below in the comments:
You can guess that I don't think very much about Padilla's "right" to have a civil remedy. In my eyes it's a de jure right that makes very little difference given the precedents set for the government in its prosecution of "terrorism" cases.
Even if Padilla should ever press and win a civil case, his life is destroyed. How many without his notoriety would ever have the resources to press a civil case?
In other words, why ever try to change or reform government abuse if there is always a civil "remedy"?