Glenn Greenwald Calls for Independent Prosector for Torture Crimes

U.S. -- The Prison-House of Nations

My blog entry on this is a few days late, but what does it matter for the 2.3 million Americans who languish in the prisons and jails of this country? They have plenty of time on their hands.

The Washington Post article last Thursday, New High In U.S. Prison Numbers, grabbed some headlines and commentary in the following days. But soon, all too soon, the revelations will grow stale, the stuff of old news, and the millions of prisoners placed safely not only behind bars, but out of sight and mind, can return to their quotidian lives of ongoing despair and impotent frustration. The Pew Report that generated the recent headlines is available here.

N.C. Aizenman writes at the WP:

More than one in 100 adults in the United States is in jail or prison, an all-time high that is costing state governments nearly $50 billion a year and the federal government $5 billion more, according to a report released yesterday.

With more than 2.3 million people behind bars, the United States leads the world in both the number and percentage of residents it incarcerates, leaving far-more-populous China a distant second, according to a study by the nonpartisan Pew Center on the States.

The growth in prison population is largely because of tougher state and federal sentencing imposed since the mid-1980s. Minorities have been particularly affected: One in nine black men ages 20 to 34 is behind bars. For black women ages 35 to 39, the figure is one in 100, compared with one in 355 for white women in the same age group.

How can such figures mesh with any view of the U.S. as a country of free men and women? You don't have to be a penal expert to know that besides having a racist justice system, the rise in incarceration is due to obscene drug laws, mandatory minimum sentencing, the draconian three-strikes-and-you're-out laws passed by demagogic politicians and a frightened populace, and petty, tyrannical probation enforcement. As a result, there are more than one million non-violent offenders locked away in the U.S. prison system. Jailing people is a big industry in the U.S., and like any capitalist enterprise, the prison-industrial complex is always seeking new markets and greater expansion.

One fast growing area of prison expansion concerns the INS jailing of immigrants to the U.S. Some of these are asylum seekers, fleeing persecution in their native lands, and held in indefinite detention at public, and increasingly, at private prisons throughout the country. An estimated 1.6 million immigrants are detained at some point in their immigration hearings. From a report by CorpWatch:

As the government invokes national security to sweep up and jail an unprecedented number of immigrants, the private-prison industry is booming. In the aftermath of the September 11th attacks on New York, immigrants have become the fastest growing segment of the prison population in the U.S. today. In fiscal year 2005, more than 350,000 immigrants went through the courts. "A growing share of them committed no crimes while in the United States - 53 percent this year, up from 37 percent in 2001 - even though Bush administration officials repeatedly have said their priority is deporting criminals," the Denver Post reported....

The government claims that locking up people without legal status is the only way to ensure that they do not disappear into the country. A December 2004 DHS report from the Office of the Inspector General concluded that all the evidence proved the “importance of detention in relation to the eventual removal of an alien. Hence effective management of detention bed space can substantially contribute to immigration enforcement efforts.”

The speed and scope of the Bush administration round up and jailing of non-citizens created a dramatically increased need for immigrant detention space. And saved the flailing corrections industry.

One example of this new privatization of prisons is the new prison built by the for-profit Corrections Corporation of America (CCA), "one of the nation's biggest prison companies", in Florence, Arizona:

The complex in Florence is part of a 300-facility-strong network of immigrant incarceration facilities. The average time an immigrant is detained is 42.5 days from arrest to deportation. At $85 a day per detainee, that adds up to $3,612.50 per person. In 2003, DHS was holding 231,500 detainees, and the budget to cover this was $1.3 billion. Since 2001, the DHS budget for detention bed space has increased each fiscal year as has the number of beds. In 2003 there was more than $50 million slated for the construction of immigrant jails....

For the second quarter of 2005, CCA announced that its revenue had increased three percent over last year, for a total of almost $300 million. CCA calculates that it expenditure of $28.89 per inmate, per day allows it to make a daily profit of $50.26 per inmate....

Business is good for CCA and the more people it stuffs into its prisons the better it becomes. "As you know, the first 100 inmates into a facility, we lose money, and the last 100 inmates into a facility we make a lot of money." CCA Chief Financial Officer Irving Lingo said on a 2006 company conference call.

This trafficking in prisoners demonstrates how deep the moral rot has penetrated this society. The U.S. as a society has truly lost its soul. The leaders of this country seem to be bound and determined to realize concretely the prophecy of Rousseau made in the years before both the French and American Revolutions:

Man is born free, but he is everywhere in chains.

Federal Judge: Torture No Reason to Stop Padilla Trial

Crossposted at Daily Kos and NION

Curt Anderson at AP (accessed via Chicago Tribune website) reports on the latest in the Jose Padilla case, and it's a shocker:

A federal judge refused to dismiss terrorism charges against a suspected Al Qaeda operative over claims he was tortured in U.S. military custody, but the possibility that the allegations could resurface at his trial was left open.

The legal matters rest on questions of admission of evidence and Fourth Amendment issues, but the political matter rests on the use of torture on an American citizen in a blockbuster case that could come to trial next week.

US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling last Monday (made without a hearing) rejected Padilla's attorneys' motion for dismissal of Padilla's case due to "outrageous government conduct". Padilla has been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an "enemy combatant". Original charges of constructing a "dirty bomb" have been dropped.

From Judge Cooke's ruling:

In his motion, Mr. Padilla argues that the conditions of his military detention and interrogation while at the Naval Brig "shock[]the conscience" in violation of his due process rights. Padilla claims that the mistreatment he allegedly suffered while at the Naval Brig divests the government of its jurisdiction to prosecute him for the crimes charged in the indictment.

The charges of mistreatment include (as summarized by a local paper covering the case -- emphases are mine):

... isolation, prolonged sleep deprivation, exposure to extremely cold temperatures and shackling in "stress positions" for prolonged periods of time, Padilla's lawyers said.

The lawyers also alleged he was threatened with execution and forced to consume LSD or some other mind-altering drug "to act as a sort of truth serum" during repeated interrogations.

Judge Cooke then made a startling admission in preparation of dismissal of the case. She took Padilla's statements to be true! From the decision:

In its Response to Mr. Padilla's Motion to Dismiss [the Indictment] for Outrageous Government Conduct the government argues that the "motion fails as a matter of law." Gov. Resp. p. 5. In order to assess whether Padilla's motion is legally insufficient, this Court must accept its allegations as true, and determine whether he has stated a cognizable claim. Thus, while this Court has not held a hearing, nor made any findings with regard to Padilla's claims of abuse and torture at the Naval Brig, for the sake of this Order, this Court will accept Padilla's allegations as true.

But then, Judge Cooke denies that this abuse rises to sufficient outrageous conduct to throw the case out of court. Why? Because the government claims it will not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no "remedy" against the government. (His habeas petition was rejected almost three years ago.)

Michael Froomkin, Professor at University of Miami School of Law, has an interesting take on the decision, insisting that a basis for appeal has been laid.

In summary, as I understand it, the Judge isn't exactly saying whether the government's conduct here was or was not outrageous, but rather that even assuming the truth of the allegations that it was, the only relief to which Padilla is entitled in his criminal defense is exclusion (or, amazingly, a hearing on exclusion!) of any evidence gathered while he was being held and tortured....

That said, I think that to the extent Judge Cooke is relying on her reading of Toscanino for the proposition that exclusion of evidence obtained by torture is a sufficient remedy for the most outrageous government conduct, that is neither an obviously correct reading of that decision nor an obviously correct decision on first principles either.... At least in my quick reading of that case, what the relief should be is left pretty wide open, especially in light of this passage:

...the Supreme Court's expansion of the concept of due process... now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court's acquisition of power over his person represents the fruits of the government's exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, [FN4] which guarantees "the right of the people to be secure in their persons... against unreasonable... seizures," the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

... we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud.

Of course, Padilla was not kidnapped, he was only arrested, placed in solitary confinement for years, drugged, tortured, made insane, and set up for dubious prosecution. At the close of Judge Cooke's analysis, she sets up the final Orwellian conclusion:

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

In other words, the government can now arrest you, Mr. and Ms. U.S. Citizen, and torture you terribly, and the torture victim has no remedy as long as the government doesn't use any evidence gathered during the torture period against you. (And by "torture" I mean any cruel, inhuman, or degrading treatment that "shocks the conscience" of any individual that suffers it, which is the current standard in U.S. law.)

This isn't Judge Cooke's first outrageous decision in this case, as the recent Washington Post article on the case makes clear:

In a ruling with broad implications for the constitutional rights of U.S. citizens in their homeland, Cooke found last month that Padilla's right to a speedy trial did not begin until he was charged in the civilian court. The time spent without being charged in the military brig did not count.

Forget the arguments about who would or would not support torture. The legal arguments to allow U.S. torture domestically are already being put into place. The "war on terror" abroad is coming home with a vengeance, and we must do all we can do to stop its horrifying attack on all our civil liberties.

Jose Padilla should be freed, and torture made "outrageous government conduct" sanctioning freedom of the accused.

Update: [4:35pm PDT] Some commenters [over at Daily Kos] have correctly pointed out that Mr. Padilla has recourse to a civil remedy against his persecutors at some date in the future, and Judge Cooke also points this out. As I noted below in the comments:

You can guess that I don't think very much about Padilla's "right" to have a civil remedy. In my eyes it's a de jure right that makes very little difference given the precedents set for the government in its prosecution of "terrorism" cases.

Even if Padilla should ever press and win a civil case, his life is destroyed. How many without his notoriety would ever have the resources to press a civil case?

In other words, why ever try to change or reform government abuse if there is always a civil "remedy"?