DIA Failed to Protect Jose Padilla’s Welfare

On June 11, SCOTUS denied cert in Jose Padilla’s suit against Donald Rumsfeld, former DIA Director Lowell Jacoby, and others at DOD for his denial of habeas corpus and abusive detention. On June 28, DOD responded to a FOIA Jeff Kaye submitted on September 8, 2010.

There’s a lot in the IG Report Jeff received in response–on whether detainees at Gitmo or other non-SOCOM facilities were administered drugs as part of interrogation (the report concludes they were not)–of import that Jeff and Jason Leopold report on here.

In this post, though, I want to look at why DOD may have held off on responding to Jeff’s FOIA until after SCOTUS rejected Padilla’s suit.

As Jeff and Jason report, one of the more inflammatory things revealed in the unredacted parts of the report is that when “they” gave Padilla a flu shot on December 5, 2002 (the report doesn’t say who administered the shot), he asked (following up on earlier comments made by an interrogator) whether they had given him truth serum.

What happened next is redacted–one of just about 5 redacted paragraphs in the entire report. DOD cited exemptions 1 (properly classified), 3 (protected by statute, including any function of the DIA), 6 (personal privacy) and 7c (law enforcement personal privacy) in withholding this information.

The following paragraph reads,

(U/FOUO) We concluded from the interrogation recordings and interviews with the interrogator and brig personnel present on December 5, 2002, that [redacted–Padilla] was not administered a mind-altering drug during his confinement at the U.S. Naval Consolidated Brig, Charleston, South Carolina. We further concluded that the [3-letter redaction] failed to follow legal review procedures established by U.S. Joint Forces Command to ensure that [redacted–Jose Padilla’s] welfare was protected in accordance with guidance issued by the President. [my emphasis]

Then, the subsequent two paragraphs–which provide “Client Comment” and DOD IG’s response–are redacted.

We can be almost certain that DIA (headed at the time of Padilla’s detention by Jacoby) was the redacted rebuked entity because their response to this report is the only other section of the report that is substantially redacted and no other respondants to the report had any complaints about it, meaning the redacted response in the Padilla section must be a discussion of DIA’s response. The unredacted section of their response, however, makes it clear their own IG investigated the problem (albeit at the same time as DOD IG was doing so).

The DIA Inspector General (IG) investigated the information gap cited in Appendix II. The DIA IG report was provided on 12 August 2009. [my emphasis]

Still, we don’t know what DIA did that drew a rebuke from DOD’s Inspector General. It may be no more than misleading Padilla into believing he had gotten a truth serum, without prior approval for doing so by lawyers. (The paragraphs in question are only classified Secret, so they can’t be that significant.)

Or, it may be that the conclusion served to protect the President and Rummy.

Nevertheless, it is fairly clear that DOD’s IG found that DIA didn’t do what they needed to do to protect Padilla’s welfare. And it sure looks like DOD sat on that information until SCOTUS ensured that Padilla would never have legal recourse for the abuse done to him.

7 replies
  1. Jeff Kaye says:

    I’m going to read all this through carefully, Marcy, but you should know that DoD first told me the report would be completed last March. But then after waiting a month, I contacted them and they said it would be out in late June. They did not explain re the delay.

    I got them to give me a completion date in the first place because Jason told me that by regulation they must give you a completion date for your FOIA request. I’m not certain if you have to ask first, btw.

    [April 13, 2002 – Re] DoDIG FOIA case 10-00317-F

    Dear Mr. Kaye,

    I received your voicemail concerning your FOIA request. I’m working with the other offices who are reviewing the report to get a new estimated completion date. They were supposed to have responded to me before March 30, but their reviews were delayed. As soon as I get a definitive date from them, I’ll provide you with a new estimated completion date. I apologize that we weren’t able to provide you with the report when we said we would. We are working to provide you with a response. If you have any other questions about your request, please let me know.

    Thank you,

    Kelly McHale
    Senior FOIA Specialist
    Department of Defense
    Office of the Inspector General

  2. Jeff Kaye says:

    @Jeff Kaye: Um, my date is wrong. It was April 13, 2012, not 2002. I’m not that prescient!

    By the way, the issue of the legalities of whether one can use a “placebo truth drug” on a detainee, particularly one that is supposedly beyond reach of Geneva is an interesting one. Even under Geneva, as I will report soon, it’s been military practice for long before the Bush years to allow use of drugs in interrogations. I’ll prove this point soon.

  3. emptywheel says:

    @Jeff Kaye: Hmm. I’d have to look at the timing of the cert petition, etc. But I wouldn’t be at ALL surprised if they delayed just to make sure they didn’t give this evidence to ACLU until after SCOTUS said no.

  4. emptywheel says:

    @Jeff Kaye: But what’s particularly notable is that 1) they presumably already knew the terms of a declass review, 2) there wasn’t that much classified in the first place, and 3) the only thing kept classified is precisely the stuff that would affect the Padilla suit.

  5. Jason Leopold says:

    @emptywheel: by the way, while Jeff’s FOIA was pending on the report I filed a Mandatory Declassification Review request, which is supposed to be far quicker in terms of getting the agency to respond. That was filed last September. Twice DOD said they had to extend the time period to respond, which is pretty unusual for MDR’s. Now I wonder also if it had to do with SCOTUS, which I never gave any thought to. Last week, after Jeff got the report, they asked if I wanted to change my MDR to a FOIA since they released it.

  6. emptywheel says:

    @Jason Leopold: I don’t remember–is there anything else in the entire report that was classified secret besides that Padilla stuff? Because every other redaction is a no brainer privacy issue.

  7. H. Candace gorman says:

    Padillas attorneys can ask the supreme court to take a second look at the cert petition based on the new evidence….but it probably loses some impact the second time around. Boumediene was denied the first time and then when new evidence was presented that made clear that the government was fucking with the court they reversed and decided to hear it…

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