"The fact that there are prosecutions of alleged terrorists using kind of more traditional, less controversial techniques, shows that those techniques actually can work in terror cases," says Geoffrey S. Mearns, the dean of Cleveland State University's Cleveland-Marshall College of Law, and a former assistant U.S. Attorney who was one of the prosecutors on the case of Oklahoma City bomber Terry Nichols. "I think that [the Crocker case] demonstrates the fact that through the use of traditional and constitutional law-enforcement techniques you can have a successful prosecution."
That, of course, stands in stark contrast to the treatment of Jose Padilla. While Crocker has been treated like any regular federal inmate awaiting trial in western Tennessee, Padilla, once designated an enemy combatant, entered the custody of the Department of Defense rather than the Department of Justice. An American citizen, convicted of no crime, he has borne the brunt of an incarceration unlike any other in the history of this country. He has been, his lawyers allege, drugged with a "truth serum," which the attorneys charge is either PCP or LSD. He was, his lawyers further allege -- it should be noted that the government has declined to address any of these charges -- arbitrarily deprived of the few human comforts he was given, like a mattress, a pillow and a sheet. Often, he slept on a bare steel platform. He was denied any contact with any people other than his interrogators and, after almost two years of incarceration, his lawyers; to ensure that he would be at all times in total solitude, his cell was monitored electronically and the unit of 10 cells in which he was held was kept empty. His mirror, at one point the only furniture in his cell other than the steel platform and a toilet, was taken from him, again arbitrarily. He was, despite the request of a representative from the Red Cross, denied a clock or any other way to tell the time of day or keep track of the weeks, months and years that he was incarcerated in the Naval Brig.
His treatment was so unusual, and so psychologically damaging, that even Sandy Seymour, the senior corrections expert at the Brig, told Padilla's lawyer that he was concerned. Staff in the Brig asked superiors whether Padilla could be permitted to have meals with another detainee to alleviate some of the deleterious effects of solitary confinement. That request was denied.
Padilla is forever scarred, says a psychiatrist who has examined him. He is paranoid, worried that if he so much as discusses what he went through in the Brig, he will be sent back, worried that letters from his mother are faked, worried that his lawyers are government plants. He will not discuss what happened to him in the "recreation" cage where he was occasionally taken, saying only that he begged his guards not to put him there. When he is asked by his attorneys to discuss his case he begs them not to -- "please, please, please," he says, according to the affidavit of a psychiatrist who examined him on behalf of the defense. When he does allow himself to be questioned by his attorneys, according to an affidavit filed by one, "he often exhibits facial tics, unusual eye movements, and contortions of his body. The contortions are particularly poignant, since he is usually manacled and bound by a belly chain when he has meetings with counsel."
But what was done to Padilla may not just make the case against him more difficult to prosecute; it may, his attorneys are now arguing, make him totally unprosecutable. Padilla has come to exhibit symptoms of post-traumatic stress disorder so severe that, accused of being a terror mastermind, he now "lacks the capacity to assist in his own defense," according to the psychiatrist's affidavit. The chance that this argument will prevail is slim, but if it does, it will be the ultimate irony. Given the chance to prosecute Jose Padilla in the way that countless prosecutions had been successfully conducted before, the Bush administration chose instead to go a new route, assuring us all the while that only they knew how to keep us safe. In that, they seem to have failed.
Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.
"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."
About the writer
Alex Koppelman is a staff writer for Salon.
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