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Tuesday, August 21, 2007

Praying to punish Padilla's interrogators?

New York attorney and Harper's contributor Scott HortonJose Padilla and the Unfinished Business of Justice, by New York attorney Scott Horton in the online Harper's Magazine, is far from the worst analysis I've read on the Padilla verdict.

It's a bit windy, but I'm prone to forgive writers for that; it's reasonably well written and well organized. And it even starts off sounding like it was written by a grown-up!

Mr. Horton duly acknowledges that "in some corners there has been a juvenile tendency to heroize anyone who becomes a target of the Bush Administration." And he acknowledges that there was a legitimate criminal case against Padilla, and ample evidence for him to be found guilty as charged:

... Jose Padilla himself is not an appealing character. I wasn’t at the trial and didn’t follow it in great detail, but what I saw of the evidence convinces me that there was a close but fair basis upon which the prosecutors could have brought the case they did. Padilla was consorting with some “really bad people.” With people who wished to harm the United States and its people and who wanted to use Padilla as a tool to that end.

It doesn’t seem unreasonable for a prosecutor to have brought the charges that were brought. Nor does it seem unreasonable for a jury to find against Padilla on the conspiracy charge that was brought. I think those who are saying that the trial of Padilla was a gross miscarriage of justice are going way overboard.

(Given just what I've written so far, however — in particular, "New York attorney" and "Harper's" — you know there's a big "But" coming, don't you?)

But all villains display relative degrees of villainy. It thus will perhaps not surprise you that in Mr. Horton's eyes, the real villains in his story are, of course, not the sort of (we hope) comparatively rare American citizens who are terrorists like Padilla, but the much more common American citizens who've been  acting through the instrumentalities of the American government, and acting on behalf of the American people, to keep us safe from the likes of Padilla:

Quite apart from the guilt or innocence of Jose Padilla, this case is marked by one other extremely troubling fact: the government-sponsored use of torture on an American citizen who had been neither charged nor convicted of any crime. Of course, the use of torture would have been forbidden even had he been convicted of a serious crime. That is the rule the Founding Fathers laid down.

Was it really torture? Yes. At this point there’s very little disagreement on this score among experts who have studied it....

Mr. Horton then quotes an examining psychiatrist on just how horribly, horribly traumatized poor Padilla is:

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.

Well, damn. Hand me another box of Kleenex, because I can barely contain all of my tears that flow from the fact that Jose Padilla is no longer his good ole self — that being, I think we may presume, the good old self who was eager to massacre as many Americans as possible, just because they were Americans. The psychiatrist continues:

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.

Mr. Horton apparently sees no irony whatsoever in citing, as evidence of the horrible effects of "torture" on Padilla, that he began showing hints of being decent and civilized, instead of being a sociopathic barbarian. "Stockholm syndrome," we might recall, was shocking precisely because through it, good people came to identify with bad guys — not the other way around! In another age, this would, of course, have made Padilla a poster-child for the "rehabiliatory effects" of the criminal justice system, including its interrogation and incarceration components.

But it gets better, friends and neighbors, as Mr. Horton continues in his own voice:

[E]ven as Padilla is convicted and sentenced, when will those who perpetrated crimes against him be prosecuted for their misdeeds? The two things are not comparable....

On that last sentence we can certainly agree! But immediately after, Mr. Horton writes:

... Padilla was charged and has been convicted of complicity in a vaguely defined conspiracy, without his having taken any material step towards an act of terrorism. The Gonzales Justice Department will, characteristically, argue for a heavy sentence. The facts won’t justify that. On the other hand, the crime committed against Padilla is extremely serious, involving long term psychological damage. Justice calls out for a prosecution and a severe sentence in such a case.

Thus would Mr. Horton make quite literal the old sarcastic truism, previously seen mostly elsewhere than in criminal law, that no good deed goes unpunished.

The rest of the article trails off into a shamefully disingenuous conclusion wholly at odds with its beginning acknowledgments that I quoted at the top of this post. Mr. Horton proceeds to argue that Padilla was prosecuted solely for "thought crimes," i.e., that the crimes charged and proved against him relied solely upon the fact that he was "accused of thinking bad thoughts about America and the Bush Administration."

I say "disingenuous" because unless Mr. Horton got his law degree via the internet from a Netherlands Antilles diploma factory, he knows full well — as, indeed, he conceded earlier in this same article — that Padilla was found guilty of conspiracies that as defined in the court's charge included not only thoughts or even shared plans, but also preparatory overt acts:

The key piece of physical evidence was a five-page form Padilla supposedly filled out in July 2000 to attend an Al Qaeda training camp in Afghanistan, which would link the other two defendants as well to Usama bin Laden's terrorist organization.

The form, recovered by the CIA in 2001 in Afghanistan, contains seven of Padilla's fingerprints and several other personal identifiers, such as his birthdate and his ability to speak Spanish, English and Arabic.

"He provided himself to Al Qaeda for training to learn to murder, kidnap and maim," said Assistant U.S. Attorney Brian Frazier in closing arguments.

Most of us would consider applying to al Qaeda for training to become a terroristic mass murderer as a fairly significant and specific overt action all by itself. But the conspiracy indictment lists, and the prosecution proved, dozens of other overt acts, including financing and travel conducted to advance the conspirators' plots.

Nor did the criminal acts charged and proved have anything to do with who in particular presently occupies 1600 Pennsylvania Avenue. During virtually all of the time in question, for that matter, that was not Bush-43, but Clinton-42 — the sort of detail which exposes the extreme silliness of Mr. Horton's extended riff on Orwell's 1984. "One of the principal objects of [torture] process, we learn, is to insure that the subject returns to loving Big Brother," writes Mr. Horton of both Orwell's hero Winston Smith and Padilla. Elsewhere in his essay: "[T]hen we have the words out of the Justice Department itself, gloating in triumph, and the right-wing echo chamber which saw in the verdict another opening for the personal adulation of the Great Leader, George W. Bush." You'll look in vain, however, for the name "Clinton" anywhere in Mr. Horton's piece.

Convicted terrorist Jose PadillaMore importantly than anyone's name-calling: The goal of Padilla's conspiracies was not merely to leave Americans "changed" or "weird" or "troubled," but dead, dying, or maimed. Indeed, if inflicting "psychological damage" on a single subject is criminal, thereby justifying severe punishment for Padilla's interrogators, then what punishment would be just for Padilla's intention to inflict "psychological damage" on roughly 300 million Americans, plus hundreds of millions of other civilized people throughout the world?

I'm taking this opportunity to offer to buy Mr. Horton a nice meal when and if he ever visits Houston (since I don't often get to New York anymore.) I'm sure I can have a perfectly pleasant debate with Mr. Horton over dinner. At the end of it, we'll shake hands and go home, safely I'd hope, to our respective homes — him thinking me a polite fascist barbarian, and me thinking him an articulate naïve child.

As we travel to our respective homes, however, evil men — men who are indistinguishable from Jose Padilla in every respect except present notoriety and status as a captive — will be plotting and preparing, gathering their will and their financing and their matériel and their opportunities. Their goal is to kill Mr. Horton and me and as many of you, or as many like us all, and our children, as they possibly can. Their goal is to do so in as horrific a fashion, and with as little mercy or remorse, as they can manage. And those men are quite literally praying to Allah, begging to be given the chance to do just those things.

If Mr. Horton will come dine with me, my own prayers that night, as every night, will be for the safety of my sons and daughters against such menaces. Now, I don't know if Mr. Horton prays or not, but if he does, I wonder: Is he praying instead for the punishment of those who captured and imprisoned and interrogated Jose Padilla, and eventually brought him to a very formal justice?

Posted by Beldar at 11:19 PM in Global War on Terror, Law (2007) | Permalink


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(1) narciso made the following comment | Aug 22, 2007 9:07:57 PM | Permalink

Scott Horton, has already ventured into 'bad faith'
arguments comparing Admin.
arguments to those Carl
Schmitt; in his previous Harper piece he sees the Weimar era authoritarian whose arguments the Nazi's utilized as the parallels.

(2) Gregory Koster made the following comment | Aug 23, 2007 1:19:12 AM | Permalink

Dear Mr. Dyer: Padilla is a bad egg. Had he gone much farther down the road, I think he would have succeeded in maiming or killing someone, just as he wanted. But he was arrested in May 2002, held as a material witness, then declared an enemy combatant in June 2002 by Geo W., then held in a Navy brig until January 2006, when he was suddenly tossed into the civilian criminal court system, and only now is convicted. His appeals will go on for ages. How much fear did this process strike into the hearts of our enemies? Or do they now think it was Moe, Larry, and Shemp who were in charge? Mr. Horton is being disingenuous in bawling thoughtcrime, unless he is prepared to dismiss the application to join al-Qaeda as forged. Yet why should it have taken all this time to dispose of this case? Three and a half years to squeeze all he knew out of him? I'll grant you freely that the problem of what to do with terror fighters, let alone terror wannabes, is thorny. But Geo W. has had five years, and presumably a sizable assortment of top legal and clandestine talent to help him grapple with these issues. This result doesn't seem worth the mighty heaving and grunting that preceded it. I'll also concede that there is a great deal going on behind the scenes that none of us know about. But given this Administration's record, what is hidden is as likely to dismay as delight us. Like you, I pray that our team can keep the rest of us safe from this real menace. But I'd feel better if there were more John O'Neills, doing there admittedly flawed damnedest to get the job done. Gloomily, I wonder instead if the home team is full of Valerie Plames and Richard Armitages, and George Tenets. O'Neill was squeezed out of the FBI, and died in the World Trade Center on 9/11. Tenet and Company have their book deals and notoriety and the possibility of jobs in the next Democratic administration. Would we have won World War II if we had fought it this way?

Sincerely yours,
Gregory Koster

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