The Padilla Case: Two Reports on America’s Fading Freedoms

August 17th, 2007 - by admin

Peter Whoriskey / Washington Post & Stephen I. Vladeck / Los Angeles Times – 2007-08-17 23:48:26

Padilla Case Called ‘Politically Motivated’
Peter Whoriskey / Washington Post

WASHINGTON (August 14, 2007) — The murder conspiracy case against alleged al Qaeda supporter Jose Padilla and two co-defendants is based not on facts but on fear and post-9/11 politics, defense attorneys told jurors Monday.

Noting that the FBI listened to the group’s US-based phone calls for six years through 2000, defense attorney Ken Swartz asked jurors to consider why, if a murder conspiracy was unfolding, agents stopped taping the suspects and did not arrest them for another two years.

“Those FBI agents were following the law – if they had heard a crime, they would have stopped it,” Swartz told jurors. But after the attacks of Sept. 11, 2001, standards changed, and a case that had seemingly been dropped was revived, he suggested. The government’s case is “politically motivated,” he said. “It was born out of a desperate need to prosecute people for terrorism after 9/11.”

The remarks came during closing arguments in the three-month trial of Padilla and his co-defendants, who prosecutors say formed an al Qaeda support cell that aided terrorist groups in Bosnia, Kosovo, Chechnya and Somalia. The men are facing three counts, the central and most serious being conspiracy to murder, kidnap or maim people overseas.

In their closing arguments Monday, prosecutors described Padilla as the “star recruit” of the cell; Adham Amin Hassoun, a Lebanese-born Palestinian who spoke at local mosques, as the cell’s recruiter; and Kifah Wael Jayyousi, a naturalized U.S. citizen from Jordan, as providing other aid.

Much of the prosecution’s case was based on the wiretapped calls, which indicated Padilla and his co-defendants talking about sending money and supplies overseas.

The defense says the men were only trying to provide relief to Muslims under attack. Swartz said the atrocities committed against Muslims in Bosnia motivated his client, Hassoun, to get involved.

Prosecutors had focused as well on the “Mujahideen Data Form” that they say Padilla filled out when he attended an al Qaeda camp in Afghanistan in the summer of 2000. The form, recovered by the CIA in Afghanistan, is filled in with one of Padilla’s aliases and some of his personal information, and bears his fingerprints on two of its four pages.

“What they were doing was no game,” Assistant U.S. Attorney Brian Frazier told jurors. “It was murder.”

At the time of Padilla’s arrest in 2002, federal officials said he was involved in a plot to explode a radioactive device in the United States. None of the evidence presented at trial, however, had anything to do with the “dirty bomb” allegations, which landed Padilla in secret detention for more than three years.

When the Supreme Court agreed to hear arguments on Padilla’s status, he was charged in the murder conspiracy, most of which, according to the indictment, took place before Sept. 11, 2001.

Closing arguments continue today.

The Lost Padilla Verdict
Stephen I. Vladeck / Los Angeles Times

(August 17, 2007) — If there has been one common theme in the Bush administration’s handling of the myriad legal challenges to its conduct of the “war on terrorism,” it has been the government’s tendency to change the playing field just when defeat seemed imminent. No case has better encapsulated this trend than that of onetime alleged “dirty bomber” Jose Padilla, who was convicted by a Miami federal jury Thursday on all three of the lesser terrorism charges against him.

Those verdicts are being called a vindication for the White House, but the real triumph came when the government succeeded in avoiding a decision on bigger, more crucial issues. That is the important Padilla precedent.

Padilla’s saga began more than 63 months ago, when he was arrested at Chicago’s O’Hare International Airport. Dubbed an “enemy combatant” by then-Atty. Gen. John Ashcroft, Padilla, a U.S. citizen, was transferred to a military brig and held without criminal charges in solitary confinement. He was allegedly mistreated — and possibly even tortured — by his captors.

Court-appointed lawyers filed suit on Padilla’s behalf, arguing that the government either had to charge him with a crime or release him. When the case went to the Supreme Court the first time in June 2004, a 5-4 majority threw it out on a technicality, holding that Padilla had to sue in South Carolina (where he was then being held), rather than in New York (where he was initially confined).

But the opinions filed that day and in the separate case of another detained U.S. citizen, Yaser Esam Hamdi, also made clear that at least five of the justices believed that Padilla’s detention was unlawful; he just had to go through the right court first.

Padilla’s lawyers did exactly that, and his case returned to the high court in the fall of 2005. Just days before the Justice Department was supposed to file its brief on the merits, however, it announced that it had indicted Padilla on lesser terrorism charges completely unrelated to the “dirty bomb” allegations and moved to dismiss the Supreme Court case because it had become moot.

The justices acquiesced, and Padilla was transferred to civilian authorities pending his trial. The specter of his military detention — and the government’s assertion that it could have held him forever without charge — at first lurked over the criminal proceedings. U.S. District Judge Marcia G. Cooke was adamant from the start, however, that the criminal trial wouldn’t address it.

Padilla sought to dismiss the criminal charges on the grounds that his right to a speedy trial had been violated and that the government’s outrageous conduct warranted dismissal; Cooke denied both motions and barred both sides from mentioning Padilla’s military detention at trial.

In retrospect, that was the critical moment in Padilla’s case, no matter the verdict. It meant that the legality of Padilla’s detention and treatment would be sidestepped completely, and the fundamental question of whether the government has the legal authority to detain U.S. citizens arrested within the United States without charges would be left unanswered, perhaps for all time.

The government’s change-of-course tactic is hardly an isolated incident. Consider the case of Ahmed Omar Abu Ali, a U.S. citizen detained in Saudi Arabia who filed suit claiming that he was being tortured by Saudi authorities at the behest (and under the direction) of the U.S. government.

When a federal judge in Washington ruled that the U.S. courts could consider the merits of Abu Ali’s claims, he was transferred back to U.S. custody rather than allowing the suit to go forward, and he pleaded guilty to a battery of serious criminal charges.

That the government has changed course midstream in such cases is not necessarily to suggest that its actions are in bad faith, or that the defendants are not the “bad guys” that they have been made out to be. Rather, the more serious problem is with the process _ that the changes in tactics prevent the courts from directly resolving the legality of the policies initially challenged and from fulfilling their constitutional duty to “say what the law is.”

In 1944, in the infamous Korematsu Supreme Court decision, which implicitly upheld Japanese American internment, the judicial system also failed to make a direct ruling in an important civil liberties case. In that instance, it was because the question under consideration didn’t directly challenge the legality of the internment camps.

The author of the dissent in that case, Justice Robert H. Jackson, saw the dangers of delivering a “non-decision decision” when it came to our fundamental rights: “The principle,” he wrote in his dissent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

As in Korematsu, Padilla’s importance is in what it sanctions but did not decide: the government’s confinement of U.S. citizens without charges.

Padilla’s military detention and his treatment while detained may in fact have been unlawful. The Bush administration’s real victory, then, was in preventing the courts from saying so.