Was Jose Padilla tortured by US military?

When suspected Al Qaeda operative Jose Padilla was taken into military custody in 2002, his interrogators set out to crush any hope he might have that a neutral judge or a defense lawyer would come to his aid.

It is difficult to convince a US citizen that legal protections guaranteed in the Constitution no longer exist for him. But that was the mission of US military interrogators ordered to extract as much intelligence as possible from Mr. Padilla.

"Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla," explained Vice Adm. Lowell Jacoby in an affidavit to an inquiring federal judge.

The statement was made seven months into what became 21 months of strict isolation in a military brig without access to a lawyer or any other human contact besides Padilla's jailers and interrogators.

Now, Padilla is facing an April trial in federal court here on charges that he became a willing Al Qaeda recruit in a violent global jihad. But his lawyers complain that Padilla's harsh treatment during nearly four years of military detention and interrogation has left him so psychologically damaged that he is unable to help wage his own defense.

US District Judge Marcia Cooke is being asked to decide whether Padilla is mentally competent to stand trial.

In a hearing before Judge Cooke Friday, federal prosecutors are expected to urge the judge to ignore everything that took place during Padilla's military detention. They say his harsh treatment is irrelevant to whether he is mentally competent to stand trial.

Padilla's lawyers disagree. They say their client was tortured by the military and they are asking the judge to order the government to fully account for its treatment of Padilla.

"Mr. Padilla is suffering from mental defects stemming from his incarceration in the naval brig," writes Anthony Natale, an assistant federal public defender, in a brief to the court. "The effects of that incarceration ... have left Mr. Padilla in such a psychologically frail posture that he cannot bear to revisit his past and, hence, cannot assist counsel in defending him against the government's allegations."

Mr. Natale adds, "It is the government that is squarely to blame for his current mental state and his concomitant inability to assist counsel."

Federal prosecutors deny that Padilla was subject to torture or any other mistreatment while in military custody, and they point to a recent report by a Bureau of Prisons psychiatrist that finds Padilla is competent to stand trial.

The key issue, according to the government, is Padilla's present mental functioning. Since he is mentally competent today, there is no need to investigate his past treatment by the military, prosecutors say.

The issue of the scope of the judge's inquiry into Padilla's mental condition is important because it could open the door to the first detailed examination of torture allegations made by an alleged enemy combatant.

Was he tortured? Was he subjected to stress positions and forced hypothermia? Was he administered mind-altering drugs?

Defense lawyers alleged each of these abuses and more in a motion pending before Cooke to dismiss the entire case against Padilla because the government engaged in outrageous conduct during his military detention.

"What you have here is a battle of conflicting theories about the entire case," says Stephen Vladeck, a professor at the University of Miami Law School.

Federal prosecutors are trying to restrict the scope of any competency hearing. The difficulty from the government's perspective, analysts say, is that even if Cooke eventually rules Padilla is competent to stand trial, there is no guarantee that she might not also dismiss the case because of facts uncovered during a wide-ranging inquiry into Padilla's earlier treatment by the military.

"There is every reason to believe that the defense will improperly seek to use a competency hearing as a vehicle to engage the court in detailed fact-finding about the alleged conditions of Padilla's detention," writes Assistant US Attorney John Shipley in a brief to Cooke. "There is no reason for the court to head down that path."

But the government itself headed down that path when its psychiatrist contacted individuals and reviewed reports dating to Padilla's military detention.

Padilla's lawyers want the same access in part so they can cross-examine the government's psychiatrist in a competency hearing set for next week.

Defense lawyers say the government's competency report suggests its psychiatrists were misled about the conditions of Padilla's confinement in the naval brig. And they want Cooke to find out what happened during a mysterious 72-hour gap in recordings of Padilla interrogations.

The lawyers say Padilla was subject to 24-hour video surveillance during his entire military detention – except for 72 hours of missing tape. "What could have been done to Mr. Padilla in those seventy-two, or so, hours that the government turned off the camera when for almost four years every one of Mr. Padilla's bowel movements were videotaped?" asks Natale in his brief.