Of all the terrifically bad ideas implemented by the Bush administration since 9/11, probably the worst have involved torture. The decision to sideline criminal prosecutions and instead focus on "alternative interrogation" methods was wrongheaded from the get-go. It was wrongheaded as a tactical matter, wrongheaded as a legal matter, wrongheaded as an ethical matter, and wrongheaded as a matter of undermining world opinion. In fact the only thing the Bush administration has actually gotten right about torture is this one tiny truth: If you want to destroy someone—if that is your sole objective—torture works. So, why won't the government even take credit for that?
That's why it's worth keeping an eye on the proceedings this week in Miami as federal Judge Marcia Cooke tries to determine whether the alleged "dirty bomber"—scratch that—alleged "apartment bomber"—um, scratch that—alleged terror conspirator Jose Padilla is mentally fit to stand trial. What the prosecution now claims almost defies credulity. They contend that Padilla is wholly unharmed—after spending 1,307 days in a 9-foot-by-7-foot cell in a Navy brig in South Carolina, where he says he was, among other things, deprived of sleep, light, sight, sound, shackled in stress positions, injected with "truth serum," and isolated for extended stretches of time. It's better than that. According to the government, Padilla is faking his craziness.
Anyone who's hoping that this competency hearing will turn into a referendum on the Bush administration's abusive interrogation practices is probably dreaming. Judge Cooke is in a tough position. The government is not on trial here. And the legal threshold for a finding of legal competency is low: Padilla will be presumed competent to stand trial unless his mental condition prevents him from understanding the nature and purpose of the proceedings against him or unless he is unable to assist in his defense. Even whack-job Zacarias Moussaoui was deemed competent to stand trial.
So, what happened to Padilla in those many months of quasi-abusive solitary confinement is legally relevant only if the court determines that he is, right now, too damaged to understand the charges against him or aid in his defense. And not surprisingly, it has come down to a battle of the experts. As of today, two defense experts have testified that Padilla suffers from shattering post-traumatic stress disorder, facial tics, and Stockholm syndrome, which has him protecting the government and fearing his own attorneys. (He has been described by some prison staff as behaving like "a piece of furniture.")
The prosecution's expert, on the other hand, vows that Padilla's mental health problems are relatively minor and in no way impede his ability to stand trial. (So far my very favorite line from the various psychological evaluations of Padilla is this unironic note: "He does believe that he is being persecuted by the government, and he does demonstrate some paranoia about the government, but this does not appear to be delusional.") The prosecution's other claims range from laughable to horrifying: Padilla is alternately "malingering," faking so he doesn't have to stand trial; or his mental illness is a result of his own history of drug abuse; or he is clearly capable of assisting his lawyers, because he managed to tell them he'd been abused in confinement. Most unnervingly, they assert that the abuse he suffered—which they can't quite bring themselves to deny—is "irrelevant to the criminal case against him."
Judge Cooke is well aware that the defense claims of abuse are relevant only in the very narrowest sense: She must probe whether the incarceration has made him nuts as of today, but no more. On the one hand, as she's noted, "[i]t's not like Mr. Padilla was living in a box. He was at a place. Things happened to him at that place." And yet at the same time she has carefully limited the evidence about his conditions in the brig to testimony about Padilla's "present state of mind."
Even if Padilla is found competent to stand trial, Judge Cooke must rule on a pending motion to dismiss the case based on Padilla's abuse. So, if the trial goes forward we will still hear a lot more about what happened to him in that Navy brig. But at the end of the day, whether Padilla is tried, convicted, hospitalized, or set free, his whole sordid story stands for the single proposition that abuse begets more abuse.
Padilla was tied to the al-Qaida leadership after abusive interrogations of others—including Binyam Mohamed, rendered to Morocco where his information came with a razor held to his genitals, and Zayn Abu Zubaydah, who as even President Bush concedes was treated to "an alternative set of procedures." Even if those tortured assertions were true, the information would have been too tainted for use at a trial. And Padilla's own isolation and sensory deprivation, which lasted for months on end, yielded what information precisely?
This abuse has been futile—aimed at the wrong man and carried out for years. It has tainted the entire Padilla trial and degraded those who did the abusing. It has alienated our former allies and undermined basic principles of humane conduct. And yet the government now claims it is "irrelevant."
But that's not quite right. The sustained abuse and isolation and disorientation of Jose Padilla is quite relevant because it's ruined his life, just as it has ruined the lives of countless Guantanamo detainees and other prisoners around the world. You would think that after more than five years of endlessly asserting, demanding, and scrapping for the power to treat enemy detainees in any way it sees fit, this government would take a bit of pride in its workmanship. Instead, it now takes the amazing position that the net effect of all these new and improved interrogation techniques is absolutely nothing at all.