[lit-ideas] NYTimes.com Article: American Terror Suspect's Path From Streets to Pentagon Brig
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- Date: Sat, 24 Apr 2004 18:57:42 -0400 (EDT)
The article below from NYTimes.com
has been sent to you by carolkir@xxxxxxxxx
FYI-LONG article about Padilla.
Carol
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American Terror Suspect's Path From Streets to Pentagon Brig
April 25, 2004
By DEBORAH SONTAG
About 10 months after Jose Padilla disappeared into a naval
brig in South Carolina, a Pentagon official appeared at his
mother's workplace in Florida with a greeting card. When
Estela Ortega Lebron saw the familiar pinched handwriting,
she trembled, knowing, before even reading the card, that
it was for real, the first evidence of her son's existence
since he was seized by the American military in June 2002.
"In the name of God the merciful the mercy giver," Mr.
Padilla wrote, "I have been allowed to write you a card and
just letting you know I'm doing fine and in good health. Do
not believe what is being said about me in the news it is
untrue and I pray that we can have a reunion. Love your son
Pucho." Pucho was Mr. Padilla's childhood nickname.
That card was the sum and substance of Mr. Padilla's
communication with the outside world for about 21 months.
Brooklyn-born and Chicago-bred, a Muslim convert of Puerto
Rican descent, Mr. Padilla, 33, was first arrested at
O'Hare International Airport in May 2002. A month later,
President Bush took the extraordinary step of declaring him
an "enemy combatant," and the military placed Mr. Padilla,
whom the government accused of plotting a radiological
"dirty bomb" attack, in solitary confinement.
Last month, more than a year after a federal judge ordered
the government to permit Mr. Padilla to see his lawyers,
the government relented. It did not allow a traditional
attorney-client meeting, though. Military officials hovered
and a videocamera recorded the encounter.
The government also acceded to a longstanding request from
the International Committee of the Red Cross for a private
visit with Mr. Padilla, and the visit itself was something
of a milestone. Until this year, the International Red
Cross, which visits prisoners of war and political
prisoners around the world, had never intervened in the
detention of an American by Americans in America.
Mr. Padilla's detention confounds traditional notions of
the way justice works in America. His case, which goes
before the Supreme Court on Wednesday, is shrouded in
secrecy. No charges have been filed against him. And the
government has offered just a hint of any evidence it has,
asking the courts to defer to its judgment that, as Mr.
Bush proclaimed, "this guy Padilla's a bad guy."
In Plantation, Fla., Mr. Padilla's mother, a condo owner,
churchgoer and sales consultant for a human resources
company, is as baffled as she is distressed. "Why are they
doing this to an American?" she asked. "If we go to all
these other countries to promote democracy - hello? - why
can't we practice it at home? I'm like, `Give me proof.' If
my son did something, charge him. Give him his day in
court."
The Bush administration says that the norms of criminal
justice do not apply here, that the government has moved
from a peacetime to a wartime footing. It is within the
wartime authority of the president as commander in chief,
the government says, to detain Mr. Padilla indefinitely in
order to interrogate him and prevent him from engaging in
terrorism.
Padilla v. Rumsfeld raises fundamental questions about
presidential power and the checks and balances on that
power during the campaign against terror. Lawyers on both
sides agree that this is one of the most important cases of
its kind in at least 50 years. Yet Mr. Padilla himself has
been little more than a cipher, a fuzzy image in a grainy
photo, and the process by which the government decided to
detain him without trial has been opaque.
Now Mr. Padilla's mother, his ex-wife in Florida, his
second wife in Egypt and friends have broken their anxious
silence. Together with accounts from former and current
government officials and court papers, they trace Mr.
Padilla's journey from Pentecostal child preacher to Muslim
convert to suspected terrorist, from a Taco Bell in Davie,
Fla., to a pilgrimage site in Mecca to the Charleston,
S.C., brig.
The Allegations
That journey covered significant territory, geographically,
emotionally and spiritually, and family and friends paint a
vivid picture of Jose Padilla. If he lived a double life,
they were unaware of it. And the American government has
said so little beyond its initial, startling allegations
about Mr. Padilla that it is difficult to reconcile the two
portrayals - the man his relatives thought they knew and
the man the government calls an enemy of his homeland.
Attorney General John Ashcroft announced Mr. Padilla's
capture from Moscow on June 10, 2002, saying that an
"unfolding terrorist plot to attack the United States by
exploding a radioactive dirty bomb" had been disrupted, an
attack with the potential to cause "mass death and injury."
Later, other officials emphasized that the "unfolding
terrorist plot" had not progressed beyond "loose talk," as
Paul D. Wolfowitz, the deputy secretary of defense, put it.
The government has asked the public and the courts to
accept that Mr. Padilla would not be locked up incomunicado
if he were not a danger to national security and a highly
valuable intelligence source. One of Mr. Padilla's lawyers,
Donna R. Newman, calls it the "because-we-say-so doctrine."
The central allegations against Mr. Padilla are contained
in one unsealed memorandum, a declaration by Michael H.
Mobbs, a Pentagon official. Mr. Padilla, the memo says, is
an associate of Al Qaeda who, in travels to Afghanistan and
Pakistan, met with senior Qaeda officials, trained in
wiring explosives, "researched" dirty bombs, concocted
plans for attacks on the United States and, "it is
believed," returned to the United States to "conduct
reconnaissance and/or attacks" on behalf of Al Qaeda.
The declaration was based on Mr. Mobbs's review of reports
from "multiple intelligence sources." In a footnote, Mr.
Mobbs said that two of those sources might not have been
"completely candid" and might have tried to provide some
disinformation. One source recanted some information, and
another was being treated "with various types of drugs" for
a medical condition. But, the footnote continued, much of
their information checked out.
The Mobbs declaration omitted one piece of information from
a sealed warrant used for Mr. Padilla's arrest. On the
request of Mr. Padilla's lawyers, a federal judge unsealed
it:
Mr. Padilla, in the opinion of the government's informants,
was unwilling to die for the cause.
Crime and Conversion
Born in Cumberland Hospital in Brooklyn, raised alongside
four siblings in working-class Chicago, Jose Padilla looks
like a handsome, confident, ordinary boy in family photos.
He wears a powder-blue suit for Christmas at 10, a top hat
and tails for a cousin's cotillion at 12, a Chicago Cubs
uniform for a mock Sports magazine cover at 19.
The photos do not show his teenage stumbling, of which
there was plenty. Mr. Padilla, who grew up without a
father, hung out on the streets, flashed gang symbols,
drank. At 14, he got involved disastrously with an older
friend in a murder that began as a petty robbery. Mr.
Padilla and his friend were drinking on a street corner in
Chicago when they decided to rob a couple of Mexican
immigrants. The immigrants put up a fight and chased them
until Mr. Padilla's friend tired of running and, for the
net gain of a watch and about $9 in pesos, stabbed one of
the immigrants, Elio Evangelista, to death. Mr. Padilla
then kicked the victim in the head "because he felt like
it," according to his juvenile records. Mr. Padilla was
placed in juvenile detention until he was 19.
When Mr. Padilla was 19, his first son, Joshua, was born.
Soon afterward, he left town, following his mother, who
suffered from arthritis, to South Florida.
In about 1991, Mr. Padilla met Cherie Maria Stultz, a
soft-spoken, formally courteous woman who had immigrated
from Jamaica as a child. The attraction, Ms. Stultz said in
an interview, was physical. She was drawn to his eyes and
to his build. They started dating. Ms. Stultz was working
at a Burger King, and Mr. Padilla at a hotel. They went to
the movies a lot.
Several months after they met, Mr. Padilla, who was 20, got
into a traffic dispute on a thoroughfare in Broward County,
according to law enforcement records. He cut off another
driver and, for punctuation, flashed a revolver at him. The
other driver, trying to read Mr. Padilla's license plate,
then followed him to a gas station. Mr. Padilla responded
by firing off a single shot - into the air, he later told
the police. He was charged with three felony counts and
sent to the Broward County jail.
A few months into his detention, Mr. Padilla got aggressive
with a guard and was charged with battery on a law
enforcement officer. He told Ms. Stultz during a visit that
he had done something he regretted, and he vowed to turn
his life around.
"He was upset at himself for getting into trouble again,"
said Ms. Stultz, now 36. "He wanted to stop - stop all that
and make a better place for himself in the world."
Still in jail, Mr. Padilla began fasting, working out
compulsively and reading the Bible from cover to cover, Ms.
Stultz said. One day, he told her about a kind of
out-of-body experience accompanied by a couple of visions.
In one, he saw a man in a turban surrounded by the dust of
the desert. In the other, he saw a beautiful woman in a
dark corridor at the end of which was a door with "crystal,
loving light" peeking out from beneath. He wanted to go
through the doorway but the woman told him he was not
ready. "Those two dreams made him change his way of life,"
Ms. Stultz said.
Pleading guilty to both sets of charges, Mr. Padilla got
out of jail after 10 months. It was the summer of 1992, he
was 21, and he did not end up behind bars again until the
F.B.I. took him into custody nearly 10 years later. He also
did not, as Mr. Ashcroft stated, travel to Afghanistan and
Pakistan "subsequent to his release from prison." He spent
the six years after his release - from jail, not from
prison - living in Florida.
On his release, Mr. Padilla applied for a job at the Taco
Bell in Davie where Ms. Stultz worked. Muhammed Javed, a
Pakistani-American and co-founder of the Broward School of
Islamic Studies, was the manager. He hired Mr. Padilla on
his girlfriend's recommendation, and never regretted it.
For more than two years, Mr. Padilla received deliveries,
threw away boxes and prepared food alongside Ms. Stultz,
and both were excellent employees, Mr. Javed said in an
interview at an IHOP near the Taco Bell.
Ms. Stultz expressed an interest in Islam, Mr. Javed said.
"I told her I couldn't discuss religion at Taco Bell," he
said. Mr. Javed invited her to his home, where his wife
gave classes in the scriptures to women. Occasionally Mr.
Padilla accompanied her, until Mr. Javed's wife suggested
that he go to the mosque with the men.
When he saw men there wearing turbans, he remembered his
vision and "felt that's where he belonged," Ms. Stultz
said. "He's the type of person where he needs a dominant
thing to keep him from going astray. He stopped drinking
alcohol and removed pork from his diet."
That they both accepted Islam touched Mr. Javed
considerably. "If I could describe the feeling in Muslims
when you find a convert," he said, "I would describe it as
right to the heavens."
Ms. Stultz and Mr. Padilla lived humbly, working at a
variety of jobs that paid minimum wage or slightly more.
With the exception of traffic infractions, Mr. Padilla kept
out of trouble with the law. He became a quiet, studious
regular at Arabic and scripture classes at the Darul Uloom
mosque in Pembroke Pines and then at Masjid Al-Iman in
downtown Fort Lauderdale.
Maulana Shafayat Mohammed, the Trinidadian-born imam at
Darul Uloom who is known for preaching against the misuse
of Islamic teachings to justify violence, described Mr.
Padilla as a student hungry for knowledge, "neither
quarrelsome nor radical but rather willing to listen and
obey." Raed Awad, the Palestinian-born former imam at
Masjid Al-Iman, said Mr. Padilla seemed to have taken
religion to heart, perhaps because in his criminal years he
had "tried the other side of society."
In 1994, Mr. Padilla, with "Jose" still tattooed on his
right forearm, formally changed his name to Ibrahim. His
family was not thrilled with his conversion.
"I was upset because he joined the Muslim religion," Mr.
Padilla's mother, a Pentecostalist, acknowledged. "This boy
grew up in the Christian church. He was baptized in water
and everything. He received the tongues when he was 8 and
as a child preached the word of God. He's crazy about the
Lord."
Mrs. Lebron said she grew to respect her son's decision
because she wanted to keep him in her life. It took her a
while, though, to get used to seeing him draped in a
red-and-white-checked keffiyeh, and to hearing his stories
about anti-Muslim prejudice. One time, his car was stoned
and the windows broken, she said.
Although they first took out a marriage license in 1991,
Ms. Stultz and Mr. Padilla waited until January 1996 to
marry in a quiet ceremony at the Broward County courthouse.
Gradually, perhaps because they were young, inexperienced
and isolated by religion from their families, their
relationship grew rocky, Ms. Stultz said. They sought
counseling from Mr. Awad.
In 1998, Mr. Padilla decided that he wanted to immerse
himself more fully in the Arabic language and in Islam. Mr.
Awad said it was common for mosques in America to encourage
converts by offering them scholarships to study abroad. At
Masjid Al-Iman, he said, a collection was taken to pay for
Mr. Padilla's ticket and travel expenses.
Mr. Padilla's family thought he was nuts. "I said, `Why are
you going to go to the Middle East when you have nobody
there?' " his mother said. Ms. Stultz was upset. She told
him she would not accompany him. The idea was "too
strange," she said. But she never suspected that he had a
hidden agenda. "In his time with me, I never heard of the
word Al Qaeda, never heard of anything terroristic," she
said. (Former administration officials said there was no
evidence that Mr. Padilla was recruited by Al Qaeda in
South Florida.)
Right before Mr. Padilla left, Mr. Javed bumped into him at
a mosque. Mr. Padilla told him that he was leaving to teach
English in Cairo. "I was baffled, thinking, `You yourself
don't speak proper English,' " Mr. Javed said. "But I said,
`O.K., Jose, more power to you.' And then Jose disappeared
from the scene."
An American in Egypt
In Egypt, Mr. Padilla called his wife once a month for the
first six months. He offered little information. He
complained about the pollution in Cairo and told her she
would not like it there, she said. Periodically he called
his mother, asking after the family.
Another American convert in Egypt met Mr. Padilla, whom he
knew as Ibrahim, through a friend. "My friend said, `Here's
another brother from the States,' " the man said in an
interview. (The man asked that his name be withheld, saying
that he did not want to attract government scrutiny.)
The American converts tended to congregate in Nasser City,
a Cairo suburb, the man said. Most of them journeyed to
Egypt "to experience what everybody calls the real Islamic
experience, to hear the calls to prayer, to pray at the
mosque five times a day as a natural part of life." Mr.
Padilla in particular, he said, "had like a real zeal for
knowledge."
After a year or so in Egypt, the man said, Mr. Padilla
expressed an interest in marrying: "He's human, and he's
young." At that time, the man was living in a village
outside Tanta in the Egyptian delta. He presented Mr.
Padilla to a villager, Abu Shamia'a, as a suitor for his
daughter, Shamia'a, who was then 19. There was a formal
meeting. "You get a bunch of Pepsis and you sit down and
the woman's in the other room," the man said. "Then you go
over and take a look and see if your heart feels something.
Ibrahim was interested."
Shamia'a herself was not certain. She now wears black from
head to toe, with only her eyes peeking out. But at that
time, she was not even veiled and she did not know if she
wanted to take on a fully religious life. Mr. Padilla
suggested that she ask God for guidance, and after she
prayed, she began to feel differently. "I felt God had sent
someone to help me be a better Muslim,"she said last week
in an interview in her village.
Abu Shamia'a, a retired laborer, was pleased with the new
son-in-law who always carried a small Arabic-English
dictionary to supplement his impressive Arabic. Mr. Padilla
had only $480 in savings, Abu Shamia'a said, so he married
his daughter off not for financial reasons but for
religious ones. Mr. Padilla used to say that time spent
away from the Koran was wasted time, Abu Shamia'a said.
In Florida, Ms. Stultz learned of her husband's betrothal
from an Egyptian-American friend. Horrified, she called and
pleaded with Mr. Padilla not to proceed with another
marriage. "He said I should go ahead with my life," she
said. "I was sad. I wasn't going to get married again.
There was a bond between us."
Ms. Stultz filed for divorce, calling her marriage
"irretrievably broken," and the marriage was dissolved.
After his second wedding, in July 1999, Mr. Padilla moved
his new wife to Cairo, where he worked days teaching
English at a private school and nights as a gym trainer and
martial arts instructor. In early 2000, he traveled to
Saudi Arabia for the hajj, the annual religious pilgrimage
to the birthplace of Islam. Shamia'a declined to accompany
him because she was pregnant.
Some time after returning from the hajj, Mr. Padilla told
his wife that he had an offer to teach English in Yemen.
"To him it was an opportunity to see a different world and
learn more about his religion," she said. Shamia'a gave
birth to a son in September 2000, and Mr. Padilla first saw
the baby, who he thought was the spitting image of himself,
when he returned to Egypt on vacation.
Mr. Padilla called his mother in Florida to announce the
birth of his son, Hussein. "My God, why would somebody name
their son that?" Mrs. Lebron asked Ms. Stultz at the time.
She did not know that Mr. Padilla had named his son after a
grandson of the prophet of Islam.
Because Mr. Padilla was gone all the time, Abu Shamia'a
moved his daughter and grandson back to his simple cement
house in the village. In May 2001, on Mr. Padilla's next
visit home, he was ill with hepatitis C, his skin yellow.
He spent his vacation visiting clinics until one doctor
prescribed a treatment based on honey and a strict diet in
addition to medicine. Feeling better, he told his wife and
father-in-law, who find it hard to believe that he was not
being straight with them, that it was time to return to
Yemen.
"He was working and learning in Yemen, that is all that
that he did there," his wife said. "He did nothing wrong. I
swear to God."
`The Hunt Was On'
In the spring of 2002, Abu Zubaydah, a senior official of
Al Qaeda who was in American custody at an undisclosed
location overseas, told his interrogators about Mr. Padilla
and the alleged dirty bomb plot, government officials say.
He did not name Mr. Padilla but described him physically
and referred to him as a Latin American man who went by a
Muslim name, an official with the Department of Homeland
Security said.
Intelligence agents began searching commercial and law
enforcement databases under that Muslim name. At about the
same time, Mr. Padilla was briefly detained in Pakistan on
a passport violation. This helped a customs intelligence
agent link the name given by Abu Zubaydah to "an Arab alias
not mentioned by the detainee," the official said.
That "alias" led the agent to Mr. Padilla's Florida
driver's license, the official said. The photo was shown to
"a detainee," presumably Abu Zubaydah, who confirmed that
Mr. Padilla was the "Latin American" he had been
describing. The Pakistanis also viewed the photo and made a
confirmation.
"Then, essentially, the hunt was on," the official said.
In the weeks leading to his arrest, Mr. Padilla made two
trips to Zurich, possibly just in transit between countries
in the Middle East. "Warnings came directly from U.S.
intelligence that Padilla was coming through Switzerland,"
a senior European intelligence official said. "The Swiss
had nothing on him. Their involvement was strictly at the
request of the Americans."
On April 4, Mr. Padilla arrived in Zurich on a flight from
Karachi and checked into a downtown hotel, his movements
and phone calls closely monitored by Swiss officials
working with the C.I.A. He made several calls to Pakistan,
the European official said.
After four days in Zurich, Mr. Padilla returned to Egypt to
see his family. It was a joyous reunion. Shamia'a had just
given birth to a second son, Hassan. Mr. Padilla spent a
month in the village, renting his wife her own house there
and leaving her with her yearly allowance plus rent, she
said.
In early May, Mr. Padilla's Egyptian family drove him to
the airport for what they thought was a long-overdue trip
to the United States to see his American family. "This was
the last time we saw him," Shamia'a said, tears dripping
onto her veil.
In the United States, Mrs. Lebron was eagerly awaiting Mr.
Padilla's phone call from Chicago, where he was planning to
stop first to surprise his American son, Joshua. Instead,
she got a call from a stranger - a lawyer - in New York.
`A Rather Weak Case'
Mr. Padilla flew through Zurich once
more. On May 8, 2002, he checked in at the Zurich airport
for a flight to Chicago. Swiss security officials screened
him carefully, and he boarded the plane accompanied,
unknowingly, by Swiss and American agents. There was some
debate within the American government about whether Mr.
Padilla should be followed once he landed or picked up
immediately; it was decided that no chances should be
taken.
At O'Hare, Mr. Padilla was arrested by F.B.I. agents on a
material witness warrant. The material witness statute
allows the authorities to detain a person to compel his
testimony in a criminal proceeding, which in the case of
Mr. Padilla was to be a New York grand jury investigating
the Sept. 11 attacks. Since the attacks, the government has
used the material witness warrant as a counterterrorism
tool, to hold terrorism suspects before it has evidence to
support a criminal arrest or indictment. Sometimes the
suspects never go before a grand jury, and sometimes no
charges are ever filed.
From Chicago, Mr. Padilla was transferred to New York and
imprisoned on a high-security floor, 10 South, at the
Metropolitan Correction Center in Lower Manhattan. The
court appointed Ms. Newman, a Jersey City-based criminal
defense lawyer who accepts indigent cases two days a year,
to represent him.
"When I first met him, he was brought out in a `three-piece
suit' - shackles, leg irons and a metal belt," Ms. Newman
said. "I was handed an affidavit alleging that he was
involved in a plot, according to informants, and saying
that the informants were unreliable."
As Ms. Newman recalls, she raised her eyebrows when she
read the affidavit. So too did Dale Watson, who was then
the F.B.I.'s executive assistant director for
counterterrorism, when he read Mr. Padilla's complete file.
"My recollection was this was a rather weak case," Mr.
Watson, who retired from the F.B.I. later that year, said.
"There was some information, but it needed a lot more work
on the investigative side to flush out all the facts."
Ms. Newman saw Mr. Padilla about a dozen times. During that
time, Mr. Padilla's mother was summoned to appear before a
grand jury in New York. "The F.B.I. talked to me like I was
a nobody," Mrs. Lebron said. "They told me I had to go to
the grand jury and if I lied, I would be locked up. And I
was like, `Excuse me!' " F.B.I. agents promised that she
would be able to visit her son while in New York, she said,
"but they lied."
On June 10, two days before a hearing in which Ms. Newman
was going to challenge Mr. Padilla's continued detention,
she got a call on her car phone from an assistant United
States attorney. "He said, `Donna, the military has taken
your client,' " she said. "I thought it was a joke."
The Learning Curve
It wasn't.
Mr. Padilla was arrested
at a moment when the Bush administration was getting fed up
with criminal prosecutions of terror suspects and wanted to
avail itself instead of what it saw as the president's
wartime power to detain them militarily.
"The president's response from 9/11 forward was to use
every power and means at his disposal to try to prevent
another attack," said Brad Berenson, a former associate
White House counsel. The administration believed that
dealing with the threat of terrorism in the context of war
was appropriate and "forward leaning," he said.
But there was a learning curve. "There was not immediately
a clear pattern or process to harmonize the treatment of
all these folks," a former administration official said,
referring to terror suspects and combatants.
The Bush administration grew disenchanted with the law
enforcement approach after encountering difficulties in the
prosecutions of John Walker Lindh and Zacarias Moussaoui.
Mr. Lindh, an American citizen captured in Afghanistan,
ended up plea-bargaining for a 20-year prison term,
avoiding a life sentence. Mr. Moussaoui, a Frenchman of
Moroccan descent who faced charges in connection with the
Sept. 11 attacks, demanded access to the testimony of Qaeda
officials who might aid in his defense, throwing his case
into protracted legal battles when the administration
refused.
Those experiences convinced officials that a broader
cost-benefit analysis was in order before pursuing other
prosecutions.
Mr. Padilla certainly could have been charged with "a
variety of offenses" based on the same facts that the
president relied on to declare him an enemy combatant, in
the opinion of Janet Reno, the former attorney general,
who, with other law enforcement officials, filed a
friend-of-the-court brief on behalf of Mr. Padilla.
Congress, Ms. Reno noted, has passed a number of statutes
expanding the government's authority to prosecute
terrorists "before they strike."
But bringing criminal charges would have been complicated.
As Alberto R. Gonzales, counsel to the president, explained
in a speech in late February: "We could have abundant
information that an individual has committed a crime - such
as material support for terrorism - but the information may
come from an extremely sensitive and valuable intelligence
source. To use that information in a criminal prosecution
would mean compromising that intelligence source and
potentially putting more American lives at risk."
In other words, to make a case against Mr. Padilla, the
government, which was relying on informants, would have to
have been willing to bring Abu Zubaydah or other captured
Qaeda officials into an American courtroom, or to make some
arrangements for their testimony to be introduced.
Mr. Padilla's mother was offended by what she saw as
unequal treatment of Mr. Lindh and her son. "That John
Walker Lindh. They didn't make him disappear, take away his
rights," she said. "I guess maybe because his father's a
lawyer. He's white, whatever."
The administration initially availed itself of the material
witness warrant statute to hold Mr. Padilla. But after a
federal judge in the Southern District of New York ruled
that the government could not detain material witnesses for
grand jury investigations, as opposed to detaining them for
trials, the administration feared that Michael B. Mukasey,
the chief federal judge in the Southern District, would
follow suit in Mr. Padilla's case and release him.
(In actuality, that fear was probably unfounded. Several
months later, Judge Mukasey upheld the detention of a
material witness in another case, and the Second Circuit
Court of Appeals later reversed the other judge's ruling.)
So the administration shifted gears.
There were already
hundreds of enemy combatants in custody, but they were
aliens seized in Afghanistan and Pakistan and detained at
the American naval base in Guantánamo Bay, Cuba. Among
them, as it turned out, was a Louisiana-born man, Yaser
Hamdi, who had grown up in Saudi Arabia. In April 2002,
when Mr. Hamdi's citizenship was discovered, he was
transferred to a military brig in the United States and his
status as an enemy combatant remained intact. His case will
be argued before the Supreme Court on Wednesday, too.
Mr. Padilla's situation was different, though. He was not
only born and raised in the United States; he had been
taken into custody in the United States by civilian law
enforcement authorities. Designating Mr. Padilla an enemy
combatant was a conscious tactical decision at the very
highest level of the American government.
It was not a transparent one, however. In late February,
more than a year and a half after naming Mr. Padilla an
enemy combatant, Mr. Gonzales undertook to explain what he
described as a "careful, thorough and deliberative
process."
"We realize that our relative silence on this issue has
come at a cost," Mr. Gonzales told a committee of the
American Bar Association. "Many people have characterized -
mischaracterized - our actions in the war on terrorism as
inconsistent with the rule of law." People have imagined
the worst, Mr. Gonzales continued, suggesting that "the
decision-making process is a black box that raises the
specter of arbitrary action."
In fact, he claimed, there have been individuals who did
not pass the levels of review required to become enemy
combatants, which he described as involving legal and
factual assessments by the director of central
intelligence, the secretary of defense and the attorney
general.
Defense Secretary Donald H. Rumsfeld, a week earlier, had
initiated the administration's effort to explain its
thinking. "Detaining people without trials seems unusual,"
he said. "After all, our country stands for freedom and it
stands for the protection of rights." The inclination of
most Americans," he added, was "to think in terms of
criminal law and punishment rather than the law of war,
which has as its purpose first to keep the enemy off the
battlefield so that they can't kill more innocent people."
Deborah Pearlstein, an expert in counterterrorism at Human
Rights First, said the administration misrepresented
international humanitarian law. "There is nothing in the
law of war that says you can hold somebody indefinitely
with no rights," she said. "That's just false."
The Legal Battle Begins
In Egypt, Mr. Padilla's wife and
father-in-law said, they were questioned by their country's
state security services for three days after his capture.
Abu Shamia'a asked his daughter if she wanted to get a
divorce. Shuddering with sobs, she repeated her answer in
an interview last week.
"I can never find a man like him in this whole world," she
said, "and I'll stand by him in this ordeal as long as it
shall take."
After Mr. Padilla was transferred to the brig, Ms. Newman
filed a habeas corpus petition for his release, starting
the legal battle that would go all the way to the Supreme
Court.
Andrew G. Patel, a defense lawyer in Manhattan with
experience in terrorism cases, was appointed Ms. Newman's
co-counsel by the court. The military did not allow them
contact with their client.
Initially, some members of Congress expressed concern. But
Representative Adam B. Schiff, a Democrat from California
and a former federal prosecutor, said that "solidarity with
the administration on fighting terrorism trumped the
otherwise strong libertarian leanings" of many in Congress.
Mr. Schiff failed to make headway with a bill that would
have authorized the president to detain enemy combatants so
long as they were provided with access to counsel and
judicial review.
After Mr. Padilla was interned in the brig, the F.B.I.
spent months fighting for access to him, a former senior
counterterrorism official said. In the fall of 2002, when
military interrogators were frustrated in their efforts to
get anything out of Mr. Padilla, they allowed the federal
agents in. "Those conversations were not initially
fruitful," the former official said, adding that he did not
know whether the interrogations ever produced significant
information. The Defense Department will not comment on the
condition of Mr. Padilla's detention or his interrogation.
In December 2002, Judge Mukasey handed the Bush
administration a partial victory. He ruled that the
president had the power to detain enemy combatants,
regardless of whether they were Americans or where they
were apprehended. It did not matter that the war on terror
had not been formally declared or that it had no clear end,
he said, and the president's power was bolstered by
Congress's authorization after Sept. 11, 2001, of
"necessary and appropriate force."
But the judge did not deal with whether Mr. Bush had
sufficient evidence to detain Mr. Padilla per se. And he
ordered that Mr. Padilla be allowed to consult with his
lawyers, calling his need to do so "obvious."
The administration refused, asking the judge to reverse his
order. It produced a declaration by the director of the
Defense Intelligence Agency, Vice Adm. Lowell E. Jacoby,
stating that Mr. Padilla was unlikely to cooperate if he
thought a lawyer was trying to free him. "Only after such
time as Padilla has perceived that help is not on the way
can the United States reasonably expect to obtain all
possible intelligence information from Padilla," Admiral
Jacoby wrote.
Judge Mukasey declined to reverse himself, insisting that
if Mr. Padilla were not permitted to see his lawyers and
respond to the allegations against him, "I cannot confirm
that Padilla has not been arbitrarily detained."
The government informed Judge Mukasey that it would
continue to ignore his order, and it appealed to the Court
of Appeals for the Second Circuit.
While that appeal was pending, a Pentagon official,
accompanied by two local police officers, dropped in on Mr.
Padilla's mother at her office. The official began
addressing her in Spanish. Mrs. Lebron, who was born in New
York to a mother who left Puerto Rico in 1939, was furious:
"I'm like, `You don't need to send me nobody bilingual. I'm
American. I speak the language.' "
The Pentagon official told her that her son was O.K., Mrs.
Lebron recalled, to which she testily responded: "How do
you know he's O.K.? You saw him? If you didn't see him,
don't come tell me he's O.K. Whatever you came to get,
you're not going to get it."
The official left her with the greeting card, in which Mr.
Padilla had included the account of a dream they once
shared - a story "that only you and I know, with the
exception of the people who read the card," he wrote,
referring to the military censors.
Mrs. Lebron could do nothing but pray in response. "I know
that God has my son in his hands," she said.
In December, the Second Circuit appeals court directed the
government to release Mr. Padilla within 30 days or to hold
him on "legislatively conferred" grounds - such as by
charging him with a crime and affording him constitutional
protections. The president possessed no inherent
constitutional authority as commander in chief to detain as
enemy combatants American citizens captured on American
soil, the court said in a 2-to-1 ruling. Even the
dissenting judge said he thought Mr. Padilla deserved to
see his lawyer.
The ruling renewed a debate behind the scenes among the
administration's top lawyers about what level of judicial
review was appropriate in Mr. Padilla's case. Nobody had
pushed for a full-fledged trial-like process in which the
courts would be called on to make their own determination
about whether Mr. Padilla was an enemy combatant, a former
official said.
At least one very senior lawyer, however, argued that it
would be prudent to make some "concessions" to Mr.
Padilla's lawyers to help the administration's approach
survive judicial review, the official said. Such
concessions might have included allowing Mr. Padilla's
lawyers to see the "output from his interrogations" or
letting the lawyers ask him questions through his
interrogators. Those ideas were never approved.
But in February, as it was appealing to the Supreme Court,
the government decided to allow Mr. Padilla a supervised,
monitored visit with his lawyers. On March 3, they flew to
South Carolina.
Mr. Padilla looked clean-shaven with close-cropped hair,
Mr. Patel said, and did not wear a Muslim cap. "He was
attentive, responsive and polite, which puts him in the top
10 percent of the clients I deal with," Mr. Patel said. "He
was very grateful for what we were doing. He appeared to be
in good health, but I'm not an expert on the effects of
long-term isolation."
Ms. Newman and Mr. Patel explained the limits on what Mr.
Padilla could say with the government listening. After
having fought for nearly two years to see their client,
they finally sat face to face with Jose Padilla but could
not satisfy their intense need to understand him better.
"I told him I had hundreds of questions and I was literally
biting my tongue - but not now," Mr. Patel said.
Reporting for this article was contributed by Samar
Aboul-Fotouh, Michael Moss, Lowell Bergman, Don Van Natta
Jr. and Tim Golden.
http://www.nytimes.com/2004/04/25/national/25PADI.html?ex=1083847462&ei=1&en=67786ca02d2b2737
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