http://to-the-dome.blogspot.com/2006/09/us-prosecution-of-padilla-no-
slam-dunk.html
By CURT ANDERSON
AP Legal Affairs Writer
Published September 24, 2006, 8:52 AM CDT
MIAMI -- The Bush administration's decision to drop the "enemy
combatant" label from alleged al-Qaida operative Jose Padilla and
prosecute him on civilian terror charges has not gone smoothly, with
even the judge in the case raising questions about sketchy evidence
and a vague indictment.
Trial for Padilla -- a former Chicago gang member once accused of
planning to detonate a radioactive bomb -- and two co-defendants was
initially scheduled for early September. But it's now off until
January and may be delayed further into 2007 if prosecutors file
their expected appeal of U.S. District Judge Marcia Cooke's dismissal
of a crucial charge.
Cooke also has pronounced the U.S. case "weak on facts" and agreed
with defense lawyers that prosecutors must provide more details about
what crimes the trio may have actually committed instead of relying
on sweeping allegations that they were involved in a violent Islamic
jihad over a decade on several continents.
In response to one question about identities of any alleged victims,
prosecutors listed armed confrontations against the Russian military
in Chechnya and Tajikistan, opposing Muslim factions in Afghanistan
and Serbian and Croat forces in Bosnia. They also cited violent acts
against more moderate Muslim governments around the world.
Many legal experts say that kind of broad evidence won't be good
enough for a jury, which must be satisfied beyond a reasonable doubt
that Padilla and the others committed crimes. And to prove that,
prosecutors must have specific violent acts and specific victims,
experts say.
"You've got to mount a sufficient body of evidence to support the
charges, and that's what's lacking," said Scott Silliman, law
professor and executive director of the Center on Law, Ethics and
National Security at Duke University. "If he is acquitted, it will be
in my judgment a severely embarrassing moment for the government."
The difficulty prosecutors have in defining exactly what Padilla and
the others allegedly did is a recurrent issue in terrorism cases
where charges are brought before a violent act takes place, said
Jeffrey F. Addicott, director of the Center for Terrorism Law at St.
Mary's University School of Law.
"Law enforcement often faces the problem of stopping the terrorist
before they strike, which means the overt act never happens,"
Addicott said. "It makes prosecution more difficult, but not
impossible."
U.S. Attorney R. Alexander Acosta declined comment on the status of
the case, but has in the past expressed confidence in the strength of
the government's evidence.
Padilla, a 35-year-old former member of the Latin Disciples gang in
Chicago, was arrested by the FBI in May 2002 at Chicago's O'Hare
International Airport and designated a month later as an "enemy
combatant" by President Bush.
He was held by the U.S. military and interrogated without charge or
real access to a lawyer for 3 1/2 years, with former Attorney General
John Ashcroft famously claiming on television that Padilla was
arrested while on an al-Qaida mission to detonate a
radioactive "dirty bomb" in a major city.
With Bush's authority to hold an American like Padilla indefinitely
without charge under legal challenge before the U.S. Supreme Court,
the administration sidestepped the question last November by dropping
the "enemy combatant" label and adding him to an existing Miami case
charging alleged members of a North American terrorism support cell.
No "dirty bomb" is mentioned in that indictment.
"There is a bit of a pattern in these cases of the government
overstating what it can actually prove," said Carl Tobias, a
University of Richmond law professor.
Padilla couldn't be transferred to the U.S. terrorist detention camp
in Guantanamo Bay, Cuba, and possibly tried before a military
commission there because he is a U.S. citizen. So even if Congress
succeeds in rewriting the rules for those commissions, Padilla will
get his day in federal court.
The indictment essentially contends that Padilla, who had relocated
in the 1990s to South Florida and converted to Islam, was recruited
to al-Qaida by Adham Amin Hassoun, a Sunrise computer programmer
allegedly active in the jihadist worldwide network. A third
defendant, Kifah Wael Jayyousi, is accused of funneling support to
terror groups in part through his "Islam Report" newsletter.
In a setback for the government's case, Cooke ruled in August that
count one of the indictment, alleging a conspiracy to "murder, kidnap
and maim persons in a foreign country," must be dismissed because it
duplicates other charges. Prosecutors are likely to appeal that
ruling, which tosses out the only charge carrying a possible life
sentence.
Other potential weaknesses in the case against include:
--Padilla's voice is heard on only eight of some 50,000 FBI wiretap
recordings and his name is mentioned on about 20 others. His lawyers
say violence or jihad is not discussed on any of those recordings,
and some of them are between Padilla's mother and Hassoun. Most
involve subjects such as Padilla's whereabouts, his marriage and his
children, his lawyers say.
--A key piece of physical evidence is a "mujahideen" application
Padilla allegedly completed to attend an al-Qaida training camp in
Afghanistan. Prosecutors say his fingerprints are on it. They have
refused to produce a list of anyone who may have been at the camp at
the same time or whose forms were found along with that application.
They intend to call as a witness Yahya Goba, a convicted 28-year-old
member of the so-called "Lackawanna Six" terror cell in upstate New
York, who will tell jurors he filled out a similar form but at a
later date. Goba could get a reduced prison sentence in return for
his cooperation.
--Over government objections, Cooke ordered the Bush administration
to turn over medical records from Padilla's long stretch in military
custody. Defense lawyers say they will look for instances of possible
misconduct during interrogations or use of drugs that might have
impaired Padilla in some way.
--A magistrate judge found that Jayyousi's publication of the "Islam
Report" may be protected by the First Amendment because it "merely
advocated terrorism in general, or jihad at some indefinite time"
rather than providing specific instructions or signals for a crime to
be committed. Jayyousi is the only defendant to win pretrial release
on bail.
Some experts compared the Padilla case to that of former University
of South Florida professor Sami al-Arian, who was cleared of
terrorism charges after a five-month trial in 2005. That case also
involved thousands of telephone and wiretap intercepts but little
direct links between al-Arian and particular acts of Palestinian
violence overseas.
"If it's not a problem as a matter of law that they are getting
people on talk rather than action, it certainly is a problem with
juries," said Michael Greenberger, law professor at the University of
Maryland. "If all they produce is telephone conversations, they run
the risk that they are not going to convince a jury to convict."
SOURCE: Chicago Tribune
