Terror Watch: The Missing Padilla Video

A federal judge ruled today that suspected Al Qaeda operative Jose Padilla is mentally competent, paving the way for his long-delayed case to proceed to trial, at long last, in April. But the ruling by U.S. Judge Marcia Cooke in Miami leaves open what may be more intriguing questions than those surrounding the defendant's mental health: what happened to a crucial video recording of Padilla being interrogated in a U.S. military brig that has mysteriously disappeared?

The missing DVD dates from March 2, 2004. It contains a video of the last interrogation session of Padilla, then a declared "enemy combatant" under an order from President Bush, while he was being held in military custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in the course of an unusual court hearing about Padilla's mental condition, a government lawyer disclosed to a surprised courtroom that the Defense Intelligence Agency—which had custody of the evidence—was no longer able to locate the DVD. As a result, it was not included in a packet of classified DVDs that was recently turned over to defense lawyers under orders from Judge Cooke.

The disclosure that the Pentagon had lost a potentially important  piece of evidence in one of the U.S. government's highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. "This is the kind of thing you hear when you're litigating cases in Egypt or Morocco or Karachi," said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government's treatment of Padilla. "It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused."

Alicia Valle, a spokeswoman for the U.S. Attorney's Office in Miama, said in an e-mail to NEWSWEEK that the missing DVD was "of the last interrogation of Padilla while in military custody." She further added that a lawyer for DIA had advised the court "that an exhaustive search was conducted but the [DVD] could not be located." She added that a classified document summarizing what took place during the session did exist, however. (Valle did not respond to followup questions from NEWSWEEK, and a spokesman for the DIA said the agency could not comment because of the pending litigation.)

The contents of the DVD was at least theoretically relevant to the issue that was before Judge Cooke this week: whether Padilla was so traumatized by the way he was treated while he was in military custody that he is now mentally unfit to aid his own lawyers in his defense. But after several day of testimony, Cooke ruled otherwise. "The defendant clearly has the capacity to assist his attorneys," she declared today.

She added that the 36-year-old defendant, a former Chicago gang member with a long history of criminal conduct, appeared to have a good understanding of the legal proceedings involving him. "He is aware of the consequences," she said. After the ruling, Padilla, who has sat largely emotionless through the past few days of testimony about his mental competency, stood up and smiled, making a point of shaking the hands of each one of his defense attorneys.

The existence of video recordings of Padilla's interrogation sessions was first disclosed by NEWSWEEK last December. But the fact that one of them had disappeared was not revealed until an assistant U.S. attorney, Stephanie K. Pell, mentioned it in court late last week and again on Monday. Pell is one of the prosecutors in a criminal case that has since been brought against Padilla and two codefendants, Adham Amin Hassoun and Kifah Jayyousi, on charges of conspiracy to provide material support for terrorism overseas and other offenses.

In court, neither Pell nor the DIA lawyer offered any explanation as to why or how the DVD went missing. On Monday, Judge Cooke accepted the government's account and did not press for any further details, concluding the missing DVD was not directly relevant to Padilla's current mental condition.

Cooke did, however, direct the government to determine whether the written summary document could be turned over to defense lawyers who have been given access to classified material. Anthony Natale, one of the Padilla's defense lawyers, said he could not comment beyond the brief references to the missing video that were made in open court. But the circumstances of his interrogation sessions are likely to come up again, because they go to the larger questions about the treatment of Padilla over the past few days.

In arguing that Padilla should be declared incompetent, his lawyers have contended that their client was subjected to extraordinarily harsh treatment that included extreme isolation, manipulation of the temperature in his cells, loud noises and other techniques designed to break him down. As part of their case, the defense introduced testimony from two mental-health professionals who testified Padilla was now uncommunicative with his lawyers and suffering from posttraumatic stress disorder caused by his treatment at the naval brig.

The defense has also found some support for their case in the accounts of two U.S. government officials. One is the technical director of the brig, who testified that Padilla was at times subjected to unannounced and "irregular" cell checks, deprived of a mattress and forced to sleep on the steel frame of a bunk.

But many of the more sensational claims made by Padilla—that he was, for example, injected with LSD or some other drug designed to be used as a "truth serum"—have also been vigorously denied by the government. Sandy Seymour, the brig technical director, testified that Padilla did receive an injection, but that it was a flu shot, not LSD. But the government's overall conduct in the case has bolstered skepticism about its claims. Padilla has been treated differently from virtually every other domestic terror suspect. Arrested by the FBI at Chicago's O'Hare airport in May 2002, Padilla—a U.S. citizen—was declared an "enemy combatant" under an order signed by President Bush the following month. He was then removed from the criminal-justice system and whisked off to the military brig without any criminal charges filed against him. He was not allowed to consult with a lawyer. At the time, Attorney General John Ashcroft said the president acted after receiving intelligence reports that Padilla had re-entered the United States on his way back from Pakistan in order to carry out an Al Qaeda plot to set off a radiological "dirty bomb" inside the country.

As an enemy combatant, Padilla was a candidate for a number of aggressive interrogation techniques, including manipulation of temperatures and exploitation of phobias, that were for a time approved by Secretary of Defense Donald Rumsfeld. But the handling of his case—particularly of the government's refusal to allow him to have an attorney—provoked a fierce national debate over civil liberties, which eventually went to the Supreme Court in 2004.

That's what makes the timing of the missing DVD noteworthy. In the spring of 2004, not long after the final interrogation session on March 2, and just before oral arguments before the Supreme Court, Padilla's lawyers were notified they would be permitted to consult with him after all.

And then on June 1, 2004, just weeks before the Supreme Court was expected to rule on the case, James Comey, deputy attorney general at the time, released a declassified Pentagon document that was said to be based on the secret interrogation sessions of Padilla in the military brig. The document said that Padilla had apparently confessed to having undergone weapons training at an Al Qaeda camp in Afghanistan and had met with Al Qaeda leaders Khalid Shaikh Mohammed and Abu Zubaydah. He allegedly discussed with them the idea of detonating a nuclear or radiological bomb in the United States. But Al Qaeda leaders were said to have concluded the plan was unworkable and instead dispatched him on a mission to blow up high-rise apartment buildings.

Comey described the account as a "sobering story" that illustrated the continuing danger from Al Qaeda's efforts to bring operatives into the country. But he and other government officials acknowledged the statements Padilla made in the course of the interrogation sessions could never be used as evidence in a regular courtroom, because they were made without him ever being advised of his legal rights. The government has also consistently refuses to discuss how Padilla was interrogated, saying such a disclosure would assist Al Qaeda to prepare countermeasures for other operatives who might be captured in the future.

As it turned out, the Supreme Court did not rule on Padilla's treatment in 2004 and instead sent the case back to the lower courts on technical grounds. But the expectation that it would return—and that the Supreme Court would ultimately rule that the president's action was unconstitutional—prompted the government to transfer him back into Justice Department custody and indict Padilla on criminal charges in November 2005. The indictment accused Padilla of being part of a North American support cell that was committed to promoting violent jihad abroad. But it made no mention of the dirty-bomb plot—or even one against apartment buildings—the allegations that the administration originally used to justify his highly unusual treatment.

Carmen Gentile in Miami contributed to this report.

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