Thursday, November 24, 2005

So, what's the deal with Padilla?

AMY GOODMAN: On Tuesday, Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes.

    ALBERTO GONZALES: Earlier today, a superseding indictment was unsealed in federal court in the Southern District of Florida charging Jose Padilla with providing and conspiring to provide material support to terrorists and conspiring to murder individuals who are overseas. The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in violent jihad, a shorthand term to describe a radical Islamic fundamentalist ideology, that advocates using physical force and violence to oppose governments, institutions and individuals who do not share their view of Islam.

AMY GOODMAN: That was Attorney General Alberto Gonzales. But the indictment raises questions over why the Bush administration held Padilla as an enemy combatant for over three years. There's no mention in the indictment of Padilla's alleged plot to use a dirty bomb in the United States. There's also no mention that Padilla ever planned to stage any attacks inside the country. And there's no direct mention of al-Qaeda. Instead, the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan, but the indictment offers no evidence he ever engaged in terrorist activity. This is his Padilla’s attorney, Donna Newman.

    DONNA NEWMAN: We are fighting, in our cert petition, the government's position that they have unfettered discretion and authority to arrest any American citizen and label them an enemy combatant and detain them indefinitely until, at their discretion, they decide to do something else. We were anxious for an indictment, because we knew that we could demonstrate that the government has exaggerated Mr. Padilla's involvement in any activity, that he was innocent of the charges.

AMY GOODMAN: That was Donna Newman, Jose Padilla's attorney. The Washington Post reports Padilla's indictment came days before the Bush administration was due to respond to his appeal to the Supreme Court over his lengthy detention. Legal experts have said the government is trying to avoid another potentially losing confrontation in the high court over its detention policies. Attorneys with the Justice Department have already filed paperwork arguing Padilla's Supreme Court challenge is now moot.

Today we're joined in our New York studio by one of Jose Padilla's attorneys, Andrew Patel, as well as Bill Goodman, Legal Director of the Center for Constitutional Rights. And we welcome you both to Democracy Now! Andrew Patel, let's begin with you. What happens to the Supreme Court challenge over Padilla's detention?

ANDREW PATEL: The cert process continues. The government will file their -- our cert petition has been in. Their reply brief was due next week. They will get a short extension to file a brief. We anticipate that they will raise the issue of mootness, and we will reply that it is not moot, and we will ask the court to consider this very important issue. Not only is it not moot as to Mr. Padilla, for example, suppose he was acquitted of this charge or the case was somehow dismissed, and the government decided that, well, we don't want him out and they just declare him to be an enemy combatant and send him back to the brig again. Until the Supreme Court rules that the President does not have that power, that's an authority, as Justice Jackson said in his dissent to Korematsu, that lies around like a loaded gun ready to be used or abused at any time.

AMY GOODMAN: Korematsu, being the Japanese American detained during World War II.

ANDREW PATEL: That's correct.

AMY GOODMAN: Can you outline what exactly this indictment says? It seems more to talk about the other men than it does your client. And his name is pronounced Jose Padilla?

ANDREW PATEL: That's what his mother tells me.

AMY GOODMAN: How much have you seen -- have you seen Jose Padilla?

ANDREW PATEL: Since we first got access to him, we have been able to see him pretty much as we needed to. Of course, we are in New York; he is in South Carolina, so there have been difficulties, but I have been able to see him in five or six weeks --

AMY GOODMAN: And when did you get access to him?

ANDREW PATEL: The day the government's reply brief was due in the first cert round.

AMY GOODMAN: How long was that after his detention?

ANDREW PATEL: About two years.

AMY GOODMAN: He didn't have attorney access for two years?

ANDREW PATEL: That's correct. When he was first brought to New York as a material witness, classic arrest based on a warrant issued by a judge, Donna Newman was assigned to represent him. When the President signed the order on June 9, sending him to the military custody, we were denied access. In fact, we couldn't even write to him. In the cert process, where the government asked the court to review the Second Circuit decision saying the President had no such authority, we asked the court to take the due process issue, including whether we could see Mr. Padilla or, more importantly, whether Mr. Padilla could see us.

Their reply was due on a given date at 3:00 in the afternoon, according to the court's schedule. At 1:00, I received a call from the military saying that we would be getting access. At 2:00, the government had a press conference saying they were giving us access, and at 3:00, they filed a brief saying to the court that the court didn't need to consider the due process issue, it was moot, and they actually cited to the web link to their press conference of an hour before.

AMY GOODMAN: Now, the indictment. What does it say?

ANDREW PATEL: The indictment basically charges material support and conspiring to support terrorism overseas. There's really nothing --

AMY GOODMAN: Terrorism where? In Padilla's case.

ANDREW PATEL: Overseas, not in the United States. And that is just a remarkable shift in the government's position. We have seen them shift positions about what he is alleged to have done before, but this is a rather remarkable departure.

AMY GOODMAN: And the whole issue of a dirty bomb, all of the things that the former Attorney General had laid out?

ANDREW PATEL: I believe Mr. Gonzales said that that was now irrelevant.

AMY GOODMAN: What has Padilla's detention been like on this brig?

ANDREW PATEL: It is -- to talk about solitary confinement, it is -- only begins -- it's the tip of the iceberg. He has been detained in a modern facility in a unit that has ten cells, five on each floor, each tier. The other nine cells in the unit that he is on are empty. He is entirely alone. He hears no sounds except the ventilation. He doesn't even have -- except when food is brought to him, he has no human contact. He has primarily been monitored by cameras and electronically. Even when he is allowed out for recreation, he is in, essentially, a concrete box alone. So his contacts with other people of any kind has been limited to about 15 minutes a day.

AMY GOODMAN: Now that he has moved from military detention and now will be tried in a civilian court, has what he said in military interrogation, will that be usable?

ANDREW PATEL: When Mr. Comey, Jim Comey, was the Deputy Attorney General, he acknowledged that any statements Mr. Padilla made while he was in custody were obtained in violation of his rights to counsel and that they could not be used in court.

AMY GOODMAN: We're talking to Andrew Patel, one of Jose Padilla's attorneys. Bill Goodman is with us also, Legal Director for the Center for Constitutional Rights. Can you talk about the broader significance of this? Were you surprised by Alberto Gonzales’s news conference yesterday, the announcement of the transfer from military to civilian courts?

BILL GOODMAN: Well, I was stunned. It was -- here's a situation where, really, an opinion written by Judge Luttig of the Fourth Circuit, who by the way was on the short list for a United States Supreme Court appointment, is really a paradigm. It's a model for the destruction of the institution of the separation of powers in the United States and to give the President wide broad powers to detain anyone he wants without any process whatsoever. This opinion is what is at stake. This is what is on appeal to the United States Supreme Court.

And I have no doubt that now that they have charged Mr. Padilla with these crimes, this stale conspiracy, really, in my opinion, they're going to move to dismiss the cert petition on the grounds that it's moot. In my judgment, that borders on abuse of process by the Justice Department. What they are doing is manipulating the process in order to sustain an opinion that says the President can virtually shred the Constitution and manipulating the legal process in so doing and saying someone who had been held really in violation of constitutional principles, because he was such a danger to the United States, because of these allegations, now they're irrelevant. It's shocking. It's an outrage.

AMY GOODMAN: What does it mean for someone else, how they get categorized as an enemy combatant? And then, does the whole process start again, because the challenging of the detention as enemy combatant will no longer be in court?

BILL GOODMAN: What it means is that someone to whom this happens -- someone else to whom this happens will perhaps at some point be allowed access to an attorney, will raise the issue in the same way that Andy Patel has raised this on behalf of his client and will be faced with the precedent of Judge Luttig's opinion in the Fourth Circuit as a huge obstacle to obtaining any due process whatsoever, and will then be forced to take it to the United States Supreme Court themselves someday, if the court wants to accept the case. I really think the Justice Department was very fearful that in this instance, the court was going to grant cert and undermine the position of the Fourth Circuit opinion.

AMY GOODMAN: I want to play an excerpt from the Supreme Court arguments in the case of Rumsfeld v. Padilla from April 2004. In the proceeding, the Supreme Court justice, Ruth Bader Ginsburg, questioned U.S. Deputy Solicitor General Paul Clement over the extent of presidential power during wartime, and how it related to the Padilla case, as well as to the use of torture.

    JUSTICE RUTH BADER GINSBURG: If the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment – that’s the resolution you gave us that Congress passed – and it leaves it up to the executive, unchecked by the judiciary, so what is it that would be a check against torture?

    PAUL CLEMENT: Well, first of all, there are treaty obligations, but the primary check is that, just as in every other war, if a U.S. military person commits as war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what’s a war crime, and we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons --

    JUSTICE RUTH BADER GINSBURG: Suppose the executive says, ‘Mild torture, we think, will help get this information.’ It's not a soldier who does something against the Code of Military Justice, but it's an executive command. Some systems do that to get information.

    PAUL CLEMENT: Well, our executive doesn't, and I think, I mean --

    JUSTICE RUTH BADER GINSBURG: But what's constraining, and that's the point, is it just up to the goodwill of the executive? Is there any judicial check?

    PAUL CLEMENT: Well, this is a situation where there is jurisdiction in the habeas courts. So, if necessary, they remain open, but I think it's very important. I mean, the court in Ludecke against Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority. You have to recognize that in situations where there is a war -- where the government is on a war footing, that you have to trust the executive.

AMY GOODMAN: Paul Clement, now Solicitor General, arguing before the U.S. Supreme Court. Andrew Patel, you were at the table representing Jose Padilla?

ANDREW PATEL: I was. I did not argue. The case was argued by Professor Jenny Martinez, who has been part of our defense team since the Second Circuit proceedings, but I was there.

AMY GOODMAN: That night -- this was April 2004?


AMY GOODMAN: That night?

ANDREW PATEL: The Abu Ghraib story broke. I have to tell you, I have no reason to believe and every reason to believe that Mr. Clement, when he made those statements, knew nothing about what was about to hit the news, but it's quite a --

AMY GOODMAN: Bill Goodman, the significance of this questioning of Ruth Bader Ginsburg?

BILL GOODMAN: Justice Ginsburg did an excellent job of exposing the dangers of unfettered, unsupervised executive power, and, of course, those dangers being ultimately torture and murder. And the fact that there are people within the administration willing to essentially be apologists for this kind of thing is very disturbing. Mr. Clement, as Andy Patel says, Mr. Clement may well not have known what was going on at Abu Ghraib, but still, the principle remains, and the principle is that without any judicial oversight or judicial check, this is the kind of abuse that clearly can happen, and it’s so foreseeable, and obviously Justice Ginsburg recognized it.

AMY GOODMAN: We want to thank you both for being with us. I just want to wrap up with Andrew Patel, last comment, and what's the schedule of this court trial for your client, Jose Padilla?

ANDREW PATEL: First, we have to get him to Florida, get him arraigned. And I have been told that this trial is scheduled for September of 2006.

AMY GOODMAN: Is there any significance about it being a Florida grand jury, a federal grand jury there?

ANDREW PATEL: We just asked that he be brought out from behind the looking glass and be brought back into the criminal process.

AMY GOODMAN: Andrew Patel, one of Jose Padilla's attorneys; Bill Goodman, Legal Director for the Center for Constitutional Rights, thank you so much.

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