Perverse Justice

Many pundits hailed the August 16 conviction of Jose Padilla on conspiracy charges as a victory for civil liberties and the rule of law. The trial, according to them, proved that a suspected terrorist could be successfully prosecuted in the civilian legal system – something the government had initially insisted was impossible. 

However, Padilla’s case raises troubling questions about whether there can be fair trials for detainees who have been held in military prisons for extended periods of time and subjected to coercive techniques designed to destroy their sense of agency and instill dependence and trust in their interrogators. 

Padilla’s lawyers argued that their client was not fit to stand trial because he was too impaired to assist in his own defense. After hearing testimony from government and defense witnesses, Judge Marcia Cooke ruled in late February that Padilla was competent to stand trial. 

One witness who submitted an affidavit during the competency hearing was Dr. Stuart Grassian, a forensic psychiatrist and former professor of psychiatry at Harvard University. An expert on solitary confinement, Grassian has interviewed more than 200 prisoners in solitary confinement and published several papers on the deleterious psychiatric effects of isolation. Grassian was slated to testify as an expert witness for Padilla, but he was not ultimately called to testify. 

Grassian furnished a redacted copy of his intended testimony to In These Times. The March 2007 document draws on an array of primary sources, including interviews with Padilla’s family and his attorneys, key legal documents and his medical records. Grassian also had access to the logs from the military prison where Padilla was held, which document the minutiae of Padilla’s stark existence from June 10, 2002 to January 5, 2006. 

Grassian also referred to a sworn declaration by Vice Admiral Lowell E. Jacoby, head of the Defense Intelligence Agency. Therein, Jacoby states under penalty of perjury that Padilla was subjected to secret interrogation techniques designed to create an atmosphere of dependence and trust between the detainee and his interrogator. 

Grassian explained that prolonged isolation is sufficient to cause a distinctive neuropsychiatric condition that interferes with a detainee’s ability to cooperate with his own attorneys. 

“Indeed, even a few days of solitary confinement will predictably shift the electroencephalogram (EEG) pattern towards an abnormal pattern characteristic of stupor and delirium,” wrote Grassian.

Solitary confinement impairs prisoners’ ability to process sensory stimuli. The slightest noise or flash of light can become excruciating. They become hyper-responsive to stimuli, in Grassian’s terms. As a result, they retreat further into a mental fog. Some prisoners become psychotic and many experience intense hallucinations and perceptual distortions. 

In an email exchange with In These Times, Grassian explained how solitary confinement renders an inmate incapable of participating in his own defense.

“I have seen a number of scenarios,” he wrote. ​“For example, some prisoners lose the capacity to focus their attention rationally on the things which should be priorities; instead, they become obsessively focused on some minor detail, or some perceived injustice – and most commonly, they become obsessively focused on some perceived injustice or offense they are experiencing in confinement (issues which are not relevant to defending themselves in their criminal case).”

Jose Padilla spent approximately three and a half years in solitary confinement at the Navy Brig in Charleston, S.C. He spent most of his day in a 9’x7’ cell. The window of his cell was painted over so that he could not see daylight. At times he was deprived of his mattress and pillow. He ate alone in his cell. 

At many points, his only human contact was with his interrogators. 

Padilla was not even allowed access to a lawyer during his first two years in captivity. Jacoby’s declaration argued that Padilla should not be allowed to have a lawyer because he was undergoing interrogation techniques designed to induce complete trust and dependence on interrogators. Access to a lawyer, Jacoby maintained, would keep some hope of rescue alive and therefore interfere with the process.

When Padilla was finally assigned lawyers, he was so uncooperative that his defense team called in Columbia University forensic psychiatrist Angela Hegarty to establish some kind of rapport with him. In a recent radio interview, Hegarty described Padilla as extremely anxious and unwilling to be interviewed at all. He told her that if he talked about what had happened to him in the brig people would ​“know he was crazy.” He said there was no need to cooperate with his lawyers because the government already knew everything. 

According to Grassian, Padilla’s rocky relationship with his legal team is typical of inmates in solitary confinement. Isolation directly interferes with an inmate’s ability to collaborate effectively with his or her lawyers.

“Prisoners in solitary become mentally unfocussed; they lose track of what their attorneys have said – things have to be repeated over and over, etc.,” he says. ​“Moreover, they become extremely irritable and often paranoid – e.g., if they don’t recall what the attorney had said previously, they become somewhat paranoid, believe it never was said, or that the attorney is really in cahoots with the prosecution. Sometimes, they lose their capacity to even discuss the issues at all, or they become so paranoid that they want to fire their attorneys.”

Padilla was rooting for the government against his own lawyers, Hegarty explained: 

He had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were ​“unfair to the commander-in-chief,” quote/​unquote. And in fact, one of the things that happened that disturbed me particularly was when he saw his mother. He wanted her to contact President Bush to help him, help him out of his dilemma. He expected that the government might help him, if he was ​“good,” quote/​unquote.

Grassian’s report documented more signs of cognitive and emotional impairment. Padilla is reportedly obsessed with the idea that his defense team wanted to put him in a psychiatric hospital for the rest of his life. When he received a rare faxed letter from his mother, he insisted that it was a forgery. He even accused the Islamic chaplain of being an impostor spying for the government. 

Padilla also claimed to have been administered psychedelic drugs against his will. Grassian saw no evidence to support that allegation, but believed those anomalous experiences could have resulted from the neurological effects of long-term isolation. 

However, despite the evidence that Padilla was suffering from severe psychiatric symptoms that were inhibiting him from cooperating with his attorneys, Cooke ultimately found Padilla fit to stand trial. And indeed, the legal standard for fitness is very low. A defendant is considered fit to stand trial if he is alert and capable of communicating with his attorneys. 

The judge’s competency ruling was probably legally correct. Nevertheless it seems perverse that the government could deliberately undermine Padilla’s will to defend himself and treat him as competent to stand trial on those very charges.