That the prosecution of Crocker ended so successfully points to what may ultimately be the most significant difference between the Crocker and Padilla cases. Crocker was investigated, prosecuted and detained in the old, pre-9/11 way, and his case has held up even as the Padilla prosecution has self-destructed.
The Crocker case was brought in by old-fashioned police work. A confidential informant passed on a tip and a sting was conducted by an FBI agent careful to make sure the plan was real and not a creation of the government. No lawyer for Crocker has ever filed an allegation that Crocker was tortured. He wasn't even cuffed or shackled at his arraignment. The case against Padilla, on the other hand, came about through anything but normal means, and that has been its downfall.
When then-Attorney General John Ashcroft first announced the detention of Padilla, it was as a suspected dirty bomber. But the indictment eventually handed down against Padilla, after the Bush administration moved him from military jurisdiction to a federal criminal court to avoid the potential of a Supreme Court review of Padilla's detention, mentions nothing about a dirty bomb. Actually, it hardly mentions Padilla at all; most of it focuses on his alleged co-conspirators. The parts of the case that do make specific reference to Padilla, the judge overseeing the case said in an August hearing, seem to be "very light on facts." That's because most of the evidence the government says it has can't be used in court. According to a November 2005 report in the New York Times, the reason that Padilla was not charged with conspiring to explode a dirty bomb is that the case has been contaminated by the extraordinary, if not extralegal, methods that were employed to develop some of the evidence against him.
The information that drove the FBI to arrest Padilla as he stepped off a flight from Pakistan at Chicago's O'Hare International Airport on May 8, 2002, reportedly came from two al-Qaida members now in U.S. custody, Abu Zubaydah and Khalid Sheik Mohammed.
Ron Suskind, the author of "The One-Percent Doctrine," tells Salon that Zubaydah gave up Padilla as an al-Qaida associate as the result of an interrogation process that used psychology, rather than force, to glean information from the captured al-Qaida member.
"Zubaydah was surprised that he had survived the capture when so many of his associates had been killed," Suskind says. "The interrogator managed to get inside of his head on this point and say that he survived for a reason, because there's a strong strain of pre-deterministic thought in his particular theology, and that was how we were essentially able to get him to talk."
But once the FBI had handed Zubaydah over to the CIA, these softer interrogation methods -- Suskind calls them "more sophisticated" -- were replaced by a harsher regime. Both Zubaydah and Mohammed were subject to some of the "alternative interrogation methods," like waterboarding, that have become so notorious during the war on terror. And, the Times report says, the decision to use those methods against Zubaydah is apparently what doomed the "dirty bomber" allegation against Padilla. Prosecutors are reportedly worried that if the two men take the stand, the credibility of their statements would be impeached by allegations of torture. Similarly, according to the Times report, some of the information about a Padilla bomb plot came from Padilla himself, while he was held in Department of Defense custody in a military prison without counsel, and would thus be unusable in court.
Suskind says the ultimate utility of traditional law-enforcement investigative methods in the Padilla case, as opposed to the relative inutility of these new, tougher tactics, is an important lesson.
"It's not a matter of, we do these things and get information or not," he says. "Long-standing interrogation practices showed that you can get all the information you need using, let's just say, accepted methodology."
Earlier this year, Padilla was transferred from the Naval Brig to Department of Justice custody. He is now housed at the Federal Detention Center in Miami. He is still in solitary confinement. Meanwhile, as of this writing, three weeks after his sentencing, Crocker remains in the custody of the U.S. Marshals, awaiting transfer to the Federal Bureau of Prisons.
While he waits, Crocker is held with garden-variety federal and state inmates in the West Tennessee Detention Facility, a private prison owned and operated by the Corrections Corporation of America. A "multi-security" facility, it is contracted out to the U.S. Marshals, to Immigrations and Customs Enforcement, to California and to Vermont. In the past, the prison has hosted inmates from Hawaii, Wisconsin, North Carolina and Montana. Some of those out-of-state inmates were the catalyst for the three escape attempts that occurred in the prison in the late 1990s. In 1995 there was a large-scale breakout attempt that Steve Owen, a spokesman for CCA, terms a "disturbance." In late 1998 an inmate serving 34 years for attempted rape escaped and made it to New Mexico; in the spring of 1999, in broad daylight, two inmates -- one doing a 220-year stint for murder and attempted murder, one doing 50 years for robbery -- got over the fence.
There are no special security arrangements for Crocker. "Everybody's treated the same at this level," says David Jolley, the U.S. Marshal for the Western District of Tennessee. "We put some in solitary confinement, but that's usually for disciplinary reasons." Crocker is in general population, Jolley confirmed to Salon; like the rest of the prisoners held at the facility on behalf of the U.S. Marshals, Crocker is in a part of the prison that is maximum security. Mark Potok, who runs the Southern Poverty Law Center's Intelligence Project, which monitors the activities of extremist groups, has compiled a list of dozens of right-wing terror plots over the past decade; he says that in those cases suspects have been treated as normal criminals. It is, Potok says, "pretty clear that there's been an effort" to bring right-wing terrorists to justice, but the government is not, he says, "treating these people like those who are picked up in Afghanistan." Still, pointing to the case of Eric Rudolph, the Olympic Park bomber who is currently in a maximum-security prison, he says that he "would not say that they've gone particularly light on these people at all."
Next page: "The contortions are particularly poignant, since he is usually manacled and bound by a belly chain"