Monday, September 25, 2006

U.S. prosecution of Padilla no slam dunk so far

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

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