Russ McBee

Today in the Jose Padilla "trial," an undercover CIA officer testified while wearing a disguise and using a pseudonym. The defense lawyers weren't allowed to learn his name, and the jury wasn't told he was using a fake name.

Here's the essential problem, and it's become sadly typical of the Bush administration's disdain for the Constitution:

Withholding information from a defendant and his counsel at trial is unusual in American courts, although not unprecedented. But it could raise a potential issue for appellate court judges to decide whether Padilla's Sixth Amendment right to confront witnesses against him has been violated.

The CIA agent in the Groucho Marx glasses testified about an alleged Al Qaeda membership application (of all things) which Padilla supposedly filled out in ink. However, there are a few problems with that form which the judge has already chosen to ignore:

In earlier court filings, defense lawyers have suggested that the Padilla data form may have been filled out by someone other than Padilla, using two different kinds of ink typically not found outside North America.

Federal prosecutors say that tests found Padilla's fingerprints on the form, proving that he filled it out. But defense lawyers counter that his fingerprints were found only on the first and last page of the five-page document. They say the tests show no palm edges or other indications that Padilla actually filled out the form. And there are many other fingerprints on the pages, they say.

So, after being tortured for a few years, some jack-booted thug hands him a five-page document and says, "Here. Hold this." He takes it in his hand, sees what it says, and puts it down. That would explain the fingerprints only appearing on the outside pages of the document.

"The fingerprint evidence is far more consistent with Mr. Padilla being shown the form during his three years and eight months of interrogation in [the military brig in] South Carolina than with having completed the form," writes Michael Caruso, another of Padilla's lawyers, in a motion to the court filed last month.

Mr. Caruso urged the judge to permit the defense "considerable leeway" to investigate the chain of custody of the data form and that the defense be permitted to engage in vigorous cross-examination. That motion appears to have been denied. 

If they can do this to Jose Padilla (a United States citizen), they can do this to you or me. These abrogations of our fundamental rights apply to all of us, and not just the "turrists."

"Allowing [the CIA agent] to use a pseudonym is pretty uncontroversial, especially if it is someone who is an undercover agent," says Robert Chesney, a national-security law specialist and professor at Wake Forest School of Law. "The harder question is why is it OK for the defendants to be limited in their ability to impeach [the CIA agent's] credibility because they don't really know who the guy is."

Chesney hit the root of the problem, and it's one typical of the Bush administration's approach to justice. Our rights don't matter, our Constitution doesn't matter, our history doesn't matter, and our respect for the rule of law doesn't matter. The only thing that matters now is keeping Jose Padilla from testifying in open court about the torture he's received over the last five years. Using the Padilla case as a model, there is absolutely nothing to stop the government from fabricating evidence and fabricating witnesses, using actors on the stand. We have no way of knowing this isn't happening right now in the Padilla "trial." This kangaroo court is not worthy of our country.

In this post at The Agonist, a commenter says:

Just looking at the disgusting sensory isolation gear used to keep Padilla from having any knowledge or understanding of the things that are happening around him and also to him (the "to" aspect only important when the senses aren't to be assaulted). But it's the same sort of sensory isolation methods that have kept Americans in the dark about what has happened to their proud nation.

Padilla cannot assist in his own defense if he's kept unaware of what's happening to him. This is the most shocking violation of our Constitution any of us have ever witnessed in our lifetimes. Jose Padilla is an American citizen. If he can be forced to star in this Kafkaesque circus, so can any of the rest of us.