What Impressed Me This Week: Jose, counter-insurgency

Jose Padilla is convicted of conspiracy

Thursday a jury of his peers found Jose Padilla guilty of conspiracy to commit various acts of terrorism. The verdict touched off a very interesting discussion both online and in a few places in the press. I've been following Padilla's situation for years, because I regard it as the clearest example of the Bush administration's threat to American civil liberties and the rule of law. The verdict seemed strangely anticlimactic, for reasons I'll try to make clear.

The story so far

First you need some background on the case. Padilla has been in custody since May of 2002. I started writing about him in April, 2003, when I summarized his situation this way:

The government arrested Padilla in O'Hare Airport after he returned from Pakistan. He is an American citizen. He can be held indefinitely without charges because President Bush has declared him to be an "enemy combatant".

The government denied having any obligation to either charge Padilla with something or let him go. Ever. Various issues related to his imprisonment have gone up and down the ladder of courts since then. His habeas corpus plea reached the Supreme Court in June of 2004, where it was rejected on a technicality about where it was filed. It was refiled in the proper district and started working its way back up to the Supremes.

A district court found in Padilla's favor, but was over-ruled by the Appeals Court, in an opinion written by Judge J. Michael Luttig, who was at the time on the administration's short list for a Supreme Court nomination. Luttig's opinion supported the Bush administration in every respect, but when the Supreme Court was getting ready to hear the case the administration abruptly changed course, indicted Padilla of criminal charges, and asked to have him transferred from military to civilian authorities. And that apparently is when Luttig realized that the government was operating in bad faith. He briefly blocked Padilla's transfer and wrote a caustic justification:

On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather than by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court.

A few months later, Luttig resigned from the Appeals Court, a decision analyzed this way by Reason Magazine:

Luttig's resignation from the most pro-government (or at least pro-executive branch) of the circuit courts, to become general counsel of Boeing, resulted, according to the Journal, from a breakdown of trust between Luttig and the Bush administration. Simply put, after years of helping legitimize the legal legerdemain of the administration and the Department of Justice, Luttig got burned by his own allies.

Nonetheless, the government successfully avoided a Supreme Court ruling, so Luttig's opinion is still the ranking precedent on the enemy combatant question. With Luttig's help, the administration had gamed the system and won.

Is isolation torture?

And then there's the way Padilla was held: in a military brig rather than a civilian prison. Two days before the verdict, the Christian Science Monitor had a long article giving some of the details of Padilla's treatment. He was held in total isolation, in a cell surrounded by empty cells so that he would have no trace of human contact other than with his interrogators.

When then-Defense Secretary Donald Rumsfeld approved isolation as an aggressive interrogation technique for use at Guantánamo Bay, Cuba, Defense Department lawyers included a warning. "This technique is not known to have been generally used for interrogation purposes for longer than 30 days," the April 2003 memo reads in part. Longer than that required Mr. Rumsfeld's approval. By April 2003, Padilla had already spent 10 months in isolation at the brig. Ultimately, he was housed in the same cell, alone in his wing, for three years and seven months, according to court documents.

A psychologist hired by Padilla's lawyers said, "It was not unusual for Mr. Padilla to go four, five, or six days without even brief [visual checks] by the brig staff, who were, in any event, under instruction not to converse with him." The Monitor comments:

Those who haven't experienced solitary confinement can imagine that life locked in a small space would be inconvenient and boring. But according to a broad range of experts who have studied the issue, isolation can be psychologically devastating. Extreme isolation, in concert with other coercive techniques, can literally drive a person insane, these experts say. And that makes it a potential instrument of torture, they add.

The Soviets, the article claims, used such techniques to break a prisoner's will in four to six weeks, not three and a half years. A second psychologist, Angela Hegarty, described the effect of this treatment on Padilla in an interview on Democracy Now:

Number one, his family, more than anything, and his friends, who had a chance to see him by the time I spoke with them, said he was changed. There was something wrong. There was something very “weird” -- was the word one of his siblings used -- something weird about him. There was something not right. He was a different man. And the second thing was his absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like -- perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened. So I think those would be the two main things. Also he had developed, actually, a third thing. He had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were “unfair to the commander-in-chief,” quote/unquote. And in fact, one of the things that happened that disturbed me particularly was when he saw his mother. He wanted her to contact President Bush to help him, help him out of his dilemma. He expected that the government might help him, if he was “good,” quote/unquote.

Apparently he loves Big Brother now.

What the verdict means

There are several ways to interpret Thursday's verdict. On one hand, it vindicates the Bush administration from the charge that it has persecuted an innocent man. (Not that anyone was making that charge. The innocent man they had tortured was Maher Arar.) I used to say that the only difference between Padilla and me or you was that President Bush had signed a piece of paper declaring Padilla an enemy combatant. But now Padilla has been convicted of something. The New York Daily News was triumphant:

Oh, what a grievous blow it must be to those who kept braying that the Bush administration was keeping poor, hapless Jose Padilla in enemy-combatant status solely because it couldn't possibly sustain any charges against him in an actual court of law. Turns out that Padilla, per a Miami federal jury's verdict yesterday, is every bit the dangerous terrorist rat his captors alleged him to be all along.

Looking at the same facts from the opposite side, Phillip Carter at Intel Dump writes:

The Padilla verdict essentially ratifies what was done to him over the past 5 years. There's strong reason to believe he was subjected to a highly coercive interrogation regime while in custody, to the point where defense lawyers claim he was unfit for trial because of the lasting effects of sensory deprivation and isolation. He was deprived of counsel; held without charges; and held without trial for years. In nearly any other case, a judge would have set him free, and Padilla would now be filing a Bivens action against the Defense and Justice Departments. But that's not the case. I'm somewhat disturbed by the outcome in this case, because it seems to rubber-stamp a long list of conduct that I find to be both abhorrent and unlawful.

A second way to look at the verdict is to ask: What has this all been about? If the ordinary criminal justice system could convict Padilla of a crime, why have we gone through this whole tyrannical process? That was the view Jenny Martinez expressed in the Washington Post:

The conclusion of Jose Padilla's criminal trial in a federal court yesterday shows that waging the "war on terror" does not require giving up our constitutional values or substituting military rule for the rule of law. The jury's guilty verdict should be appealed, but the verdict on the Constitution is in: We should keep it.

The third view is to wonder: What the heck was he actually convicted of? "Conspiracy" is an extremely vague charge. There are conspiracies and then there are conspiracies. If you're sitting behind the wheel of a get-away car, you've conspired to rob a bank even if the police stop your accomplices before the bank is actually robbed. But what if you're arrested the day before the bank was supposed to be robbed? What if your gang has talked about robbing a bank, but hasn't picked one out yet? What if you were hanging around in a bar when one of your buddies said, "We ought to rob a bank"? At what point does talk turn into criminal conspiracy?

Pretty early, apparently, when the talk is about terrorism. Scott Horton at Harpers describes Padilla's conspiracy charge as a "thought crime". (His article doesn't start with Padilla. Scroll down a few paragraphs.) It isn't just that the terrorist acts Padilla was convicted of conspiring to perform never happened; they never even started to happen. It's not clear they were even planned in much detail.

As the Bush Administration is conceptualizing and implementing this law, the fact that Padilla thought bad thoughts about the United States and its Government is enough to lock him up for life. There is no requirement that he have actually taken a material step towards a plot to actually do something bad.

Horton compares this to the Star Chamber in 17th century England:

In the state security court of that era, there was no need to demonstrate that a person actually had taken a step to act on a plan—it was enough to show his sympathies and his entrance into a conspiracy. The American Republic was founded upon a repudiation of this notion. But in this area again, the Bush Administration has worked with determination to undo three hundred years of legal history and to reinstate tyrannical practices of the past.

Counter-insurgency

The most important opinion article of the week was "The War as We Saw It" in Sunday's New York Times. It was written by seven soldiers in the 82nd Airborne division.

Viewed from Iraq at the tail end of a 15-month deployment, the political debate in Washington is indeed surreal. Counterinsurgency is, by definition, a competition between insurgents and counterinsurgents for the control and support of a population. To believe that Americans, with an occupying force that long ago outlived its reluctant welcome, can win over a recalcitrant local population and win this counterinsurgency is far-fetched.

The gaffe of the week was by Army Chief of Staff George Casey. Worried about those soldiers who have to serve 15-month deployments rather than the usual 12 months? Don't be. According to ABC News:

"Ninety days in Iraq goes like that," he said, snapping his fingers.

I'd love to ask the guys in the 82nd about that comment.

While we're talking counter-insurgency, former captain Nathaniel Fick had a very good article in the Washington Post, Fight Less, Win More, about what he taught at the counter-insurgency academy in Afghanistan.

The third paradox hammered home at the academy is that the more force you use, the less effective you may be. Civilian casualties in Afghanistan are notoriously difficult to tally, but 300-500 noncombatants have probably been killed already this year, mostly in U.S. and coalition air strikes. Killing civilians, even in error, is not only a serious moral transgression but also a lethal strategic misstep.

Of course, when Barack Obama made this same point, Mitt Romney went after him as naive and inexperienced. Check out this TPM-TV video.

And it's got nothing to do with Iraq or Padilla, but you may be amused by Steven Colbert's interview with DailyKos founder Markos Moulitsas.