Jose Padilla's Competency to be Argued Today

Florida District Court Judge Marcia Cooke will hold a status conference Monday on the issue of alleged "dirty bomber" Jose Padilla's competency.

From the Southern Distict of Florida Blog, the issues, according to the AP are:

  • Reports being suspicious of everyone, including his attorneys, and stated that he does not know who he can and cannot trust. He indicated he was unsure of whether his attorneys might really be federal agents posing as his attorneys.''
  • Appeared to become visibly distressed whenever asked about sensitive topics (his palms appeared to become sweaty ... his body would tense up, and he would rock back and forth).''

  • Is unable to watch video recordings of his interrogation ..."

  • "Appears convinced at times that no matter what happens he will be returned to the brig, even if he prevails in the current case.''

  • Was certain that nobody could help him, that he could not be rescued from his current situation.''

  • Both experts concluded that Padilla was not faking mental problems and, in Hegarty's words, "is terrified that anyone will consider him mentally ill or crazy.''

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    and he isn't the only one (5.00 / 1) (#1)
    by Jen M on Mon Dec 18, 2006 at 06:43:43 AM EST
    http://www.nytimes.com/2006/12/18/world/middleeast/18justice.html?hp&ex=1166418000&en=8bbe0c a95f0b352c&ei=5094&partner=homepage

    Detainee 200343 was among thousands of people who have been held and released by the American military in Iraq, and his account of his ordeal has provided one of the few detailed views of the Pentagon's detention operations since the abuse scandals at Abu Ghraib. Yet in many respects his case is unusual.

    The detainee was Donald Vance, a 29-year-old Navy veteran from Chicago who went to Iraq as a security contractor. He wound up as a whistle-blower, passing information to the F.B.I. about suspicious activities at the Iraqi security firm where he worked, including what he said was possible illegal weapons trading.

    And how well was he treated?

    American guards arrived at the man's cell periodically over the next several days, shackled his hands and feet, blindfolded him and took him to a padded room for interrogation, the detainee said. After an hour or two, he was returned to his cell, fatigued but unable to sleep.

    The fluorescent lights in his cell were never turned off, he said. At most hours, heavy metal or country music blared in the corridor. He said he was rousted at random times without explanation and made to stand in his cell. Even lying down, he said, he was kept from covering his face to block out the light, noise and cold. And when he was released after 97 days he was exhausted, depressed and scared.

    sleep deprivation is a form of torture. So is sensory deprivation.

    Now we are torturing our own veterans. AND telling them they cant see a lawyer

    Nathan Ertel, the American held with Mr. Vance, brought away military records that shed further light on the detention camp and its secretive tribunals. Those records include a legal memorandum explicitly denying detainees the right to a lawyer at detention hearings to determine whether they should be released or held indefinitely, perhaps for prosecution.

    They can't see a lawyer, can't be represented by a lawyer? American citizens? Why?

    Mr. Vance and Mr. Ertel were permitted at their hearings only because they were Americans, Lieutenant Fracasso said. The cases of all other detainees are reviewed without the detainees present, she said. In both types of cases, defense lawyers are not allowed to attend because the hearings are not criminal proceedings, she said.

    Nah, it will never happen to American Citizens...

    re Padilla's insanity (5.00 / 1) (#2)
    by scribe on Mon Dec 18, 2006 at 07:29:53 AM EST
    It seemed to me, from my reading of the reports on this latest twist, that the Government was the party moving to have his competency tested, i.e., see whether he was sane or not.

    This gambit strikes me as yet another cynical ploy, because in the event he would be declared incompetent to stand trial, he'd stay in captivity - a mental hospital - and the government would only have to address his present state - not the acts of the government which put him in that state.  Hell, they could even default in defending against his being declared incompetent to stand trial....

    You're too (none / 0) (#3)
    by Edger on Mon Dec 18, 2006 at 07:35:10 AM EST
    kind too the government this morning, I think. Cynical isn't really the term you had in mind is it, scribe?

    profanity filters (none / 0) (#4)
    by scribe on Mon Dec 18, 2006 at 08:31:59 AM EST
    make for euphemism.

    Part of the Plan (none / 0) (#5)
    by squeaky on Mon Dec 18, 2006 at 09:47:55 AM EST
    Good point scribe. Obviously breaking him and others down until they are permanently damaged, was/is part of their plan. Very nasty way of escaping culpability.

    Has there been a decision on (none / 0) (#6)
    by Edger on Mon Dec 18, 2006 at 09:55:18 AM EST
    the prosecutions' motion to disallow evidence of the conditions of his detention?

    they could even default in defending against his being declared incompetent to stand trial....

    Can his lawyers introduce evidence of the conditions of his detention into the record in a competency hearing (reasons for his mental state and incompetency) ?


    my supposition is (5.00 / 2) (#7)
    by scribe on Mon Dec 18, 2006 at 10:41:17 AM EST
    that as to a hearing to determine whether Padilla (or any other criminal defendant) is competent to stand trial, the central question is whether he (or she) is able to comprehend the charges against them, the nature of the proceeding, and is able to assist his/her attorneys in preparing and presenting a defense.  

    I've probably messed up the legalese, but I haven't handled any of these, and readers get the point, anyway.  And, if anyone wants to correct me, go ahead....

    What I understand to be lacking in such a hearing and, more importantly, in determining whether any of the standards for incompetency are met, is any consideration of the context of how the defendant got to be in the mental state where he is allegedly incompetent to stand trial.  My understanding of the law is that this context is marginally relevant*, if not totally irrelevant.  The problem is, though, that this is pretty uncharted waters.

    I don't think there is any precedent where the intervening events of "how the defendant came to be incompetent" were the result of affirmative governmental conduct - our government didn't torture as policy and practice until a few years ago.  Nor have they prosecuted people after beating them senseless, at least for 40 or 50 years.  I'm not sure how the courts treat claims of defendants' incompetency arising out of injury stemming from governmental negligence (say, the jailer left untreated some illness in captivity, which then resulted in brain damage) and whether that governmental negligence would be admissible. The bar for admission of evidence of culpability for governmental negligence is surely higher than for affirmative conduct, so I can see that there would be limited relevancy for proof of the negligent conduct in an incompetency hearing.  If the governmental conduct were affirmative, as in Padilla's case (though they'll argue over that; since his was "no-touch and leave him very alone" torture, they'll surely argue it's only negligent and therefore less relevant), I can see it being pretty relevant.

    In so many words - this is uncharted (or barely charted) territory.

    *For a hypothetical example, I understand that if the presence of, say, stuffed toy elephants was some sort of psychological trigger for the defendant to engage in violent criminal acts, if the acts charged were of the type triggered by stuffed elephants, the nature and source of his pathology would be relevant.  (As would be the presence of stuffed elephants in the courtroom at trial.) If, however, he was alleged to have engaged in acts not of the type triggered by stuffed elephants and could otherwise meet the (very minimal) standards for competency, then the nature and source of that pathology would not be relevant - and he'd just be another weirdo.  Fact is, you can be pretty much a drooling idiot and still be competent to stand trial.

    On the other hand, if hypothetically the defendant had suffered some intervening injury (say, he had fallen and suffered brain injury - independent of police action) and had no memory of the events allegedly included in the criminal episode, then proof of that injury event would be relevant to the incompetency determination.  One would have to prove "X happened and now the defendant is incompetent".  There's usually little or no quibbling over the happening of "X"; the causal link between "X" and the alleged incompetency is where the fight usually starts.

    In the civil context (where there is no bar against the plaintiff calling the defendant as a witness and forcing testimony), I once represented a client who had received a traffic ticket - and pleaded guilty to it - for the driving which culminated in the accident at the heart of the lawsuit.  The guilty plea to the ticket would have sealed the liability case against my client (or at least been really tough to overcome).  Between the time of pleading to the ticket and the civil trial, though, my client had undergone brain surgery (unrelated to the accident) which had as one of its sequelae a partial (though substantial) loss of memory and of some function - the reduced state was obvious to even a layperson's inspection.  Some of the memory lost related to the ticket - the client remembered going to court but only that it seemed no one wanted to listen to anything the client had to say - there was no memory of pleading guilty, etc.  I got a favorable ruling (maybe it was a break from a judge who was also disabled, wheelchair-bound and needed help robing) and the guilty plea stayed out as the judge determined my client was not competent to testify to something the client could not remember (and my adversary had not prepared to get and bring in evidence which could have been used to try to refresh my client's memory and couldn't find the now-retired cop who'd written the ticket).  But in the criminal context, where testimony of the defendant cannot be compelled by the prosecution, that example is only of limited, illustrative value.


    Thx, scribe... (none / 0) (#8)
    by Edger on Mon Dec 18, 2006 at 10:52:14 AM EST
    Competency (none / 0) (#9)
    by squeaky on Mon Dec 18, 2006 at 11:30:27 AM EST
    What would be appropriate is to test the competency of his accusers. Now that is the case we have all been waiting for.

    Foregone conclusion? (none / 0) (#10)
    by Edger on Mon Dec 18, 2006 at 11:32:34 AM EST
    Wouldn't that be a 'show trial'?

    Here's an interesting article (none / 0) (#11)
    by scribe on Mon Dec 18, 2006 at 11:34:22 AM EST
    from Salon, re a guy in Tennessee who was convicted of attempting to build a "dirty bomb", sarin, and blow up a courthouse.

    In his case, which arose after Padilla's, the government used classic, straightforward police work to build a case.

    They did such a thorough job (and, it appears, the guy was thoroughly guilty) the jury convicted in 45 minutes or so.  Then, Salon compares the case to Padilla's, and notes what a total hash the government has made of Padilla's case.

    All of which tells me, the objective in Padilla's case never was to prosecute Padilla, but rather, as I wrote before,

    The point of Gitmo and keeping people in the Charleston brig, it seems, probably never was to extract from them information about terrorism and plots.  
    * * *
    So, why go through all these repetitive interrogations, extended stays of months without seeing a human face (or anything other than gray walls) or hearing any sounds?

    It seems unmistakeably clear that the "information of enormous value to the nation" being "developed" was not intelligence.  Rather, and first, it was the creation of an institutional memory and structure for the extended, expanded use of torture tactics by the US government. .... [T]he Real Program ... was not getting information from these subjects.  Rather, it was sieving out those who would be in the new Torturer Corps from the mass of military, CIA and medical personnel.  An employment interview, if you will.

    Second, it was training of interrogators  - torturers - in the craft of their new trade.  

    Lamentably, no other rational explanation suffices (except, maybe, that Padilla is brown, and the Tennessee guy is a white supremacist, someone/thing the Repugs love...).  Otherwise, why is the Tennessee white-guy terrist in a private-run multilevel prison, general population, and only getting 30 years, while Padilla's had his brains scrambled without any conviction at all?

    Why? (none / 0) (#12)
    by Edger on Mon Dec 18, 2006 at 11:44:13 AM EST
    Jose Padilla is now crazy. Anything he says about his conditions of detention are now automatically suspect of course - which was the intention all along.



    Lamentable (none / 0) (#14)
    by squeaky on Mon Dec 18, 2006 at 12:02:59 PM EST
    Lamentably, no other rational explanation suffices (except, maybe, that Padilla is brown, and the Tennessee guy is a white supremacist, someone/thing the Repugs love...).

    Rational explanation?  Are you kidding?  Even though I tend to agree with your theory I think to expect a rational explanation is asking way too much.

    The accusers are criminally insane.


    rational explanations (none / 0) (#15)
    by scribe on Mon Dec 18, 2006 at 12:42:24 PM EST
    are those which you arrive at when you exclude the impossible.  I think in my comments here and elsewhere, particularly those I've linked to, and in reading the comments and posts of others, I've pretty well established that the explanation I've posited is the only rational explanation for that which happened.  

    Note that I (believe I ) have not addressed whether or to what degree Bush, Cheney, Rumsfeld, et als. were a (or the) moving force behind the treatment Padilla received (or the torture in Abu Ghraib or the CIA black prisons).  I believe (without there being much information available to support it) that, government being government, the tortures dealt out would not have happened absent pretty explicit Executive direction therefor.  Whether the buck stops on Rummy's, Deadeye's or The Unit's desk is something only some future historians may ever be able to answer, through something approximating the Bad Arolsen archives.

    Whether or not Padilla's captors are insane is neither relevant, nor germane.


    Irony (none / 0) (#17)
    by squeaky on Mon Dec 18, 2006 at 12:52:08 PM EST
    Whether or not Padilla's captors are insane is neither relevant, nor germane.
    Yes that may be true in a legal or practical sense but it is the crucial irony surrounding the administration's move to have Padilla's competency tested.

    Motive is irrelevant (5.00 / 1) (#19)
    by scribe on Mon Dec 18, 2006 at 01:30:34 PM EST
    If you haven't noticed, despite huge public repudiation of his policies, Bushie and Deadeye keep going down the same path.  I think any time spent on examining the purported motives (or, for that matter, appealing to any sense of "humanity", "morality", "common sense" or whatever name one might give one of those "soft" values) is pretty much wasted.  

    They don't care.  Appeals to "humanity" amuse them.

    Let's get this straight.

    It appears there is one thing, and one thing only, Bushie and Deadeye and their minions are interested in.  That thing is the possession, use and expansion of the power of the presidency to be exercised in their hands and in the hands of their chosen successors.  They have, by all appearances deliberately, repeatedly undertaken policies and adopted or used methods which are calculated to create the greatest uproar, upset, hue and cry among those of their opponents.  These same thumb-in-the-eye tactics are most appealing to the drooling winger base.

    Let's get this straight, too.

    They use the winger base, as much as a threat of setting loose a worse-than-the-Brooks-Bros.-riot of those slack-jawed yokels, as anything else.  

    They serve the moneyed interests, or, as Bushie put it in the quote from Farenheit 9/11 "My base:  the haves, and the have-mores."

    Padilla is just there as an example of what they can do - for the money people to see how tough and ruthless and devoted they are - and a crumb to throw to the wingers (who just gotta love seeing some brown guy get tortured into insensibility).

    Got it?


    RE: Appeals to "humanity" amuse them (none / 0) (#20)
    by Edger on Mon Dec 18, 2006 at 01:35:50 PM EST
    American and world citizens have not fully awakened to the monstrous, diabolical nature of this totalitarian regime; they assume it must have some modicum of concern for its people, its nation, and human decency.
    People throughout the world must become aware that this new totalitarianism is completely unlike any previous geopolitical power structure. Its very essence is annihilation; it possesses no redeeming or mitigating feature.

    To allow yourself to think of these people as foolish, incompetent, irrational, or wrong-headed is as mistaken and misinformed as thinking that Hitler was merely a well-meaning but mistaken fearless leader of his people.


    Got it (none / 0) (#21)
    by squeaky on Mon Dec 18, 2006 at 02:05:42 PM EST
    Yes scribe, none of that is lost on me. This has been clear from the beginning. Deadeye was thrown out of Yale (the first time) because he was caught hurling a rain of bottles on the little people from high up on top of one of the school buildings. He has not changed one bit. Nor has the chimp. Both are emboldened by their perceived godlike power and the fantasy of passing their baton on down.  

    I still view them as criminals, just as I view other despot as criminal. Insane, well in this case it will remain either a subjective diagnosis or if it comes to it a legal defense.


    A reminder that scribe is (none / 0) (#18)
    by Edger on Mon Dec 18, 2006 at 12:54:51 PM EST
    not alone with his theory, which I agree with also, as well as many others:
    What needs to be pointed out is that the procedures that broke down Padilla's mental equilibrium weren't dreamed up by his jailers in South Carolina. According to Alfred McCoy in a new book called "A Question of Torture," they are the result of decades and billions of dollars of taxpayer-funded research.
    For whatever reason the U.S. government did this to one of its own citizens, and whether or not he is guilty of anything, what was done to Padilla should give us all pause. We are now learning that post-9/11 fear resulted in a number of horrendously wrong-headed actions such as the invasion of Iraq that led to that nation's civil breakdown. The Padilla case is about the psychological breakdown of a single man, but it should send a shudder down the spine of every freedom-loving American.


    Criminal insanity indeed, on a massive and institutionalized scale, implemented by Mr. Bush and his very sick administration.


    To mistreat a man by indefinite confinement... (none / 0) (#13)
    by Bill Arnett on Mon Dec 18, 2006 at 11:52:21 AM EST
    may be illegal.

    To deprive him of his sanity is an act of pure evil.

    This country needs to be reminded of that for which America stands.

    Mornin', everybody.

    Makes sense to me (none / 0) (#16)
    by Joe Bob on Mon Dec 18, 2006 at 12:43:52 PM EST
    "Appears convinced at times that no matter what happens he will be returned to the brig, even if he prevails in the current case.''

    Well, if Padilla were to base his current beliefs on his experiences over the past few years then I would say that this belief is pretty well grounded in reality.

    Padilla's case will be resolved in a just manner if and when The Decider decides to take care of it. And by 'just manner' I mean some judicial process that would be recognizable to the typical American citizen.  

    competency (none / 0) (#22)
    by diogenes on Mon Dec 18, 2006 at 02:50:55 PM EST
    If you're not competent to aid in your defense at a felony trial, can't they place you in a forensic psychiatry hospital indefinately until you become competent.  

    If Padilla's lawyers really thought that there was no case against him then they should push to try the case and acquit him.

    unless (none / 0) (#23)
    by Jen M on Mon Dec 18, 2006 at 05:06:12 PM EST
    he really is in that bad shape

    He is. (none / 0) (#24)
    by Edger on Mon Dec 18, 2006 at 05:28:50 PM EST
    Nutrition and insanity (none / 0) (#25)
    by Edger on Mon Dec 18, 2006 at 07:48:07 PM EST
    They may have been doing other experimenting on Jose Padilla than just on the limits of sensory deprivation.

    This would also fit into scribes' theory of "the creation of an institutional memory and structure for the extended, expanded use of torture tactics":

    Chicago Tribune

    Padilla told his lawyers and mental-health experts that he was held without sunlight, adequate food or a clock, and was injected with truth-serum drugs to coerce him to talk.

    Mental health link to diet change

    Proteins and mental health

    Protein intake and intake of individual amino acids can affect brain functioning and mental health. Many of the neurotransmitters in the brain are made from amino acids. The neurotransmitter dopamine is made from the amino acid tyrosine. The neurotransmitter serotonin is made from the amino acid tryptophan. If the needed amino acid is not available, levels of that particular neurotransmitter in the brain will fall, and brain functioning and mood will be affected. For example, if there is a lack of tryptophan in the body, not enough serotonin will be produced, and low brain levels of serotonin are associated with low mood and even aggression in some individuals. Likewise, some diseases can cause a buildup of certain amino acids in the blood, leading to brain damage and mental defects. For example, a buildup of the amino acid phenylalanine in individuals with a disease called pheylketonuria can cause brain damage and  mental retardation.

    Anyone who has ever experienced or witnessed up close and personal the effects of nutritional deficiencies associated with cocaine or meth addiction would recognize some of Padilla's symptoms as they've been described in the affidavits.

    Molecular level torture? (none / 0) (#26)
    by Edger on Mon Dec 18, 2006 at 09:03:33 PM EST
    From: What are Endocrine Disruptors?

    Health Effects of Endocrine Disruptors
    developmental, behavioral and mental disorders,[36] anger, inattention, decreased mental capacity, learning disabilities,[37] dyslexia, attention deficit/hyperactivity disorder (ADHD),[38] autism, propensity to violence,[39] reduced motor skills, and gross and fine eye-hand coordination.

    see also: Pesticides, Toxins, Endocrine Disruptors

    Molecular level torture? Nanotorture? No bruises or obvious physical marks.