http://www.miami.com/mld/miamiherald/15378054.htm
Government's case against terror suspect faces obstacles The prosecution of a former 'enemy combatant' from Broward County is not going as smoothly as predicted. BY JAY WEAVER [EMAIL PROTECTED] On a visit to Moscow in 2002, then-U.S. Attorney General John Ashcroft trumpeted on TV that ''we have captured a known terrorist'' who was plotting to blow up a radioactive ''dirty bomb'' in the United States. The suspect: Jose Padilla, a U.S. citizen who became a Muslim while living in the Fort Lauderdale area. Ashcroft branded Padilla an ''al Qaeda operative,'' and the Bush administration held him for more than three years without charges as one of a select few U.S. citizens designated ''enemy combatants'' in the war on terror. But faced with a risky legal showdown over his detention, the administration tossed Padilla into the federal court system -- confident that Miami prosecutors could convict him for being a recruit, not a dirty bomber, for an alleged South Florida terror cell. Now the terror case against Padilla, 35, is shrinking under the scrutiny of U.S. District Judge Marcia Cooke. Last week, she threw out the first count in the indictment -- that Padilla and two other Muslim men ''conspired to murder, kidnap and maim persons in a foreign country . . . to advance violent jihad.'' She found it repeated the same charges in two other counts that alleged they agreed to support terrorists overseas -- a violation of the Constitution. Cooke's ruling, which will be appealed by the U.S. Attorney's Office, effectively eliminates the possibility of life sentences for the three defendants. If Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi are convicted on the remaining terror charges at trial in January, they could face up to a maximum 15 years in prison. So what the Bush administration presented as an open-and-shut terror case is proving to be much harder to prosecute, legal experts say. Carl Tobias, a constitutional scholar at the University of Richmond School of Law in Virginia who has followed Padilla's legal odyssey, said his prosecution ``falls into the category of terror cases that are overstated and don't deliver on what they promised.'' ''If the measure is what Attorney General Ashcroft said at the outset, we're pretty far removed from that,'' Tobias said. ``The tougher question is whether the government can prove the lesser charges of what they have now. That's hard to predict.'' Stephen Vladeck, a professor at the University of Miami School of Law, has carefully followed the government's treatment of Padilla -- from his arrest by the FBI at Chicago's O'Hare International Airport in May 2002 and his lengthy military detention as an ''enemy combatant'' without charges to his indictment in Miami federal court last November. As a student at Yale Law School, Vladeck worked on an amicus brief that challenged Padilla's detention in a South Carolina Navy brig -- a highly controversial appeal that came close to being reviewed by the U.S. Supreme Court. Like Tobias, Vladeck raised doubts about the strength of the government's evidence against Padilla -- not only in light of what Ashcroft first said about his terror ties to al Qaeda but also what his successor, Alberto Gonzales, said at a Washington press conference when the Miami indictment was unveiled. `VIOLENT JIHAD' 'The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in `violent jihad' -- a shorthand term to describe a radical Islamic fundamentalist ideology that advocates using physical force and violence to oppose governments, institutions and individuals who do not share their view of Islam,'' Gonzales said in November 2005. ``These groups routinely engage in acts of physical violence such as murder, maiming, kidnapping and hostage-taking against innocent civilians.'' Gonzales was referring to the first conspiracy count in the Padilla case -- the one that Cooke lopped off the indictment a week ago. ''This is not as clear-cut a case, certainly not as clear-cut as the attorney general made it out to be back in November,'' Vladeck said. ``You have to wonder how strong their case is if there is this much trouble at the outset.'' But Vladeck also conceded this point: ``The charges we see in this case tend not to require the proverbial smoking gun.'' Another legal scholar, Professor Robert Chesney at the Wake Forest University School of Law in Winston-Salem, N.C., said that despite dismissal of the first count in the indictment, the case is still fundamentally solid. ''On the one hand, it sounds bad -- the one charge that carried a life sentence is thrown out the window,'' said Chesney, a recognized expert on national security law, who analyzed the Padilla case and others in a forthcoming law review article. ''What [the judge] has really done is condensed the charge,'' he said. ``Since you can't charge the defendants for the same crime twice, one of the charges had to be dropped. But that doesn't mean the allegations against them, if proved, would not constitute a crime.'' Chesney said that under the terror conspiracy law, prosecutors only have to show that the defendants agreed to provide money, recruits and other resources to further the violent activity of Islamic extremists engaged in jihad, or holy war, overseas -- not necessarily be involved themselves in actual terrorist actions. ''At the end of the day, if the defendants generally intended to provide material support, then the government has a good case,'' Chesney said. Much of the government's case has been built upon thousands of wiretaps of phone conversations among members of an alleged North American terror cell with links to the Fort Lauderdale area. The time frame: October 1993 to November 2001. In the indictment, Hassoun and Jayyousi are accused of recruiting Mujahadeen fighters and raising funds for radical Islamic causes in Bosnia, Kosovo, Chechnya, Somalia, Afghanistan and Egypt -- but it makes no mention of any specific attacks anywhere. Hassoun, a Palestinian computer programmer who lived in Sunrise, became friends with Padilla when they attended the Masjid Al-Imam mosque in Fort Lauderdale during much of the 1990s. Padilla, a former Chicago gang member, left South Florida in 1998. He traveled to Egypt but remained in contact with Hassoun. TERRORIST TRAINING According to the indictment, Padilla traveled overseas to receive training for violent jihad. On July 24, 2000, Padilla is alleged to have filled out a ''Mujahadeen Data Form'' in preparation for training in Afghanistan. It also claimed that on Sept. 3, 2000, Hassoun called another alleged co-conspirator in Egypt to provide financing for Padilla. But the indictment does not explicitly say Padilla -- who was arrested in Chicago upon returning from Pakistan -- belonged to al Qaeda. UM's Vladeck said the indictment, first filed in 2004, was just a ''run-of-the-mill'' terror case until the notorious Padilla was charged last fall. Said Vladeck: ``This would be a huge loss for the government if Padilla gets off.'' [Non-text portions of this message have been removed] -------------------------- Want to discuss this topic? Head on over to our discussion list, [EMAIL PROTECTED] -------------------------- Brooks Isoldi, editor [EMAIL PROTECTED] http://www.intellnet.org Post message: osint@yahoogroups.com Subscribe: [EMAIL PROTECTED] Unsubscribe: [EMAIL PROTECTED] *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. OSINT, as a part of The Intelligence Network, is making it available without profit to OSINT YahooGroups members who have expressed a prior interest in receiving the included information in their efforts to advance the understanding of intelligence and law enforcement organizations, their activities, methods, techniques, human rights, civil liberties, social justice and other intelligence related issues, for non-profit research and educational purposes only. We believe that this constitutes a 'fair use' of the copyrighted material as provided for in section 107 of the U.S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/osint/ <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
