In a Miami courtroom on Monday morning, defense lawyers for Jose Padilla, the American citizen accused of conspiring with al-Qaida, will argue what could be a landmark motion. Padilla's defense attorneys are asking the presiding judge to dismiss the case on the grounds of "outrageous government conduct." The abuse Padilla has endured while in custody, they contend, has so scarred him that he can no longer even discuss the case against him. They believe he has been rendered incompetent to stand trial.
The logic of the federal government's response to the defense motion was stunningly cold. The U.S. Attorney's office agrees that Padilla needs his competency evaluated. We didn't torture him, argue the representatives of the U.S. government, but if we did, and it made him crazy -- well, then, no claims he makes about said torture can be trusted. He is, after all, mentally incompetent.
Jonathan Turley, a professor of law at George Washington University who specializes in constitutional criminal procedure, calls this argument "bizarre."
"It would create a rather perverse incentive," marvels Turley. "As long as the government can force someone into mental incompetency they cannot face a motion for incompetency in court."
"It would seem," concludes Turley, with great understatement, "to invite abuse."
This shockingly cynical new tack is just the latest in the saga of moral and legal breakdown that is the Padilla case. On Dec. 4, the New York Times published graphic evidence to substantiate Padilla's claims of mistreatment. The paper ran old photos of Padilla while he was in Department of Defense custody wearing dark goggles, earmuffs and shackles, being led from his one-man cell to a dental appointment for a root canal. Padilla spent 1,307 days at the Naval Consolidated Brig in Charleston, S.C., where, his lawyers allege, he was kept in solitary, deprived of sleep, drugged with PCP or LSD, held in stress positions, and blindfolded, shackled and deafened on the few occasions he was allowed out of his 9-by-7-foot cell.
The Bush administration has defended its handling of Jose Padilla and other alleged terrorists in federal custody by arguing that the post-9/11 "war on terror" requires extraordinary methods. But while the Department of Justice has been tying itself in knots trying to justify the government's handling of Padilla, the nearly simultaneous -- and successful -- prosecution of another supposed "dirty bomber" in Tennessee stands as proof that the measures taken in the Padilla case are at best counterproductive. Without fanfare, and without any damage to the Constitution, 41-year-old Demetrius Crocker has been convicted of plotting to explode a bomb and release sarin gas outside a courthouse.
On Nov. 28 -- six days before the Times ran its photos of Padilla -- Demetrius "Van" Crocker was sentenced to 30 years in prison. David Kustoff, the United States Attorney for the Western District of Tennessee, where Crocker was prosecuted, tells Salon that "It was one of the preeminent anti-terrorism cases of 2006 nationwide." Whether or not that is true, few outside of the greater Memphis metropolitan area have ever heard of Crocker. Only one reporter, John Branston of the weekly Memphis Flyer, even covered his entire trial. What is certain is that in every particular his case is a study in contrasts with the prosecution of Jose Padilla.
According to court documents, the investigation of Demetrius Crocker began in early 2004, around the time he told a man named Lynn Adams that Timothy McVeigh "[did] things right." Adams, who had met the Mississippi-born farmhand through a mutual acquaintance, began to hear from Crocker about his plans for mass murder. A resident of rural Carroll County, Tenn., an hour northeast of Memphis, Crocker told Adams he wanted to kill the black population of nearby Jackson, Tenn., with mustard gas and explode a bomb outside a courthouse.
By then, Adams had learned a lot about Crocker's background: his previous membership in the neo-Nazi National Socialist Movement, his anti-government beliefs, his fascination with Adolf Hitler and idolization of Oklahoma City bomber McVeigh. "Fuck them. Let God sort them out," Crocker said when Adams asked if he was worried about killing innocent women and children.
Crocker, meanwhile, hadn't learned nearly as much about Adams. He didn't know, for example, that Adams was a former sheriff's deputy and a confidential informant for the Carroll County drug task force. At first, Adams didn't take Crocker seriously, but as their relationship progressed, Adams began believing Crocker was more than just talk.
At that point, the Carroll County Sheriff's Department passed the case on to the FBI. Steve Burroughs, an FBI agent, began working undercover. Posing as an employee at the Pine Bluff Arsenal in Arkansas, where some of the country's remaining chemical weapons are stored to await destruction, Burroughs offered to help Crocker obtain explosive materials. Without Burroughs' prompting, Crocker became more ambitious. He began talking about blowing up a radioactive bomb outside the U.S. Capitol.
There was an element of the fantastic in Crocker's plan; he hoped, he told Burroughs, to obtain the necessary plutonium for the dirty bomb he wanted to explode outside Congress by communicating with mail-order brides from Russia, one of whom would presumably put him in touch with a former KGB agent with access to nuclear material. His lawyers claimed he had an IQ of just 85.
But tapes of the conversations between Crocker and Burroughs reveal that Crocker knew what he was doing. He had made a version of Zyklon B, the gas used in the gas chambers in Nazi concentration camps, and he accurately described its manufacture. He had made nitroglycerin. He had the ingredients for a rudimentary bomb in his home, where he also kept several guns he told Burroughs he would use to kill any government agent sent to capture him.
Burroughs gave Crocker several opportunities to back out of the plan the two worked on together, but each time Crocker chose to press on. And had the materials Burroughs handed Crocker on the day the FBI finally arrested him been real, Crocker would have known what to do with them. With the fake C4 explosive and fake precursor to sarin gas Burroughs provided, it would have been a simple matter for Crocker to make the deadly nerve agent and release it outside a government building.
The U.S. Attorney's office repeatedly described Crocker as the McVeigh of West Tennessee. "He was Timothy McVeigh," said Kustoff after Crocker's conviction, "and every bit as scary." The jury deliberated just 45 minutes. On April 13, they found Crocker guilty of all five charges filed against him.
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."
"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."