By William Fisher
This week, a Florida jury is set to hear opening arguments in a trial that has come to be known as “Padilla Lite” – because it lacks the most serious charges made the government when it spectacularly announced the arrest of Jose Padilla for conspiring with al Qaeda operatives to plant radiological ''dirty bombs'' and to blow up apartment buildings in major US cities.
In June 2002, then Attorney General John Ashcroft interrupted a visit to Moscow to hold a widely publicized press conference to announce the arrest at Chicago’s O’Hare Airport of the US citizen, who was soon designated by President George W. Bush as an enemy combatant.
The Brooklyn-born Puerto Rican, who lived in the Ft. Lauderdale area, had converted to Islam a few years earlier. He was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers. In late 2005, he was abruptly transferred to a civilian jail on the eve of a Supreme Court habeas corpus hearing that would have compelled the government to present evidence to justify his continued detention.
A former juvenile offender, Padilla converted to Islam as part of an effort to straighten out his life, say family members and friends. His mosque in Fort Lauderdale sponsored his travel, he is said to have told friends, relatives and FBI agents who interviewed him in 2002.
Following his transfer from the navy brig, Padilla, along with two co-defendants, computer programmer Adham Amin Hassoun and Detroit school administrator Kifah Wael Jayyousi, were indicted for conspiring to ''murder, kidnap and maim'' people overseas and to provide ''material support'' for terrorist activity.
Gone were the “dirty bomb” allegations against Padilla, potentially incriminating testimony from al Qaeda members detained at the US naval base at Guantánamo Bay, Cuba, and Padilla's originally alleged meeting with a top
al Qaeda commander. The jury will also not be hearing anything Padilla may have told his captors during his three-year incarceration nor of his treatment during that period. Federal rules of evidence exclude material obtained before a suspect is formally charged; Padilla was not charged until he became part of the civilian justice system.
Testimony of this kind is not part of the indictment against Padilla because its admission would have opened the door for defense attorneys to challenge the credibility of prosecution witnesses, possible torture tactics, and disclosure of national security secrets.
The evidence the government will present to a dozen Miami-Dade County jurors will be in support of allegations the defendants were part of a US-based mission to carry out ''violent jihad'' overseas, including the ''Mujahideen Data Form'' Padilla is alleged to have submitted in preparation for training with al Qaeda in Afghanistan.
The government’s case is based largely on hundreds of wiretapped phone conversations between Padilla and his co-defendants. Seven of these taped phone calls contain recordings of Padilla’s voice.
Each of the defendants faces life in prison if convicted. To obtain a guilty verdict, prosecutors will have to convince the jury that each defendant participated in at least one act to further the conspiracy of providing material support for Islamic extremists overseas. Padilla's alleged recruitment by his co-defendants, and his alleged al Qaeda application, might be sufficient to obtain a conviction. The three defendants have pleaded not guilty.
However, the initial “dirty bomb” charge has not vanished completely. It was lodged against one of Padilla’s alleged accomplices, an Ethiopian-born Guantanamo detainee, who is not part of the Miami trial and who has not yet been scheduled for trial by a military tribunal at GITMO.
And the original “dirty bomb” allegation against Padilla is a key reason jury selection took more than a month and became so contentious. Many prospective jurors said they had heard of Padilla and some connection with the purported al-Qaida plot to detonate a radioactive "dirty bomb." Others had strong opinions about Islamic fundamentalism and terrorism that they said would make it difficult or impossible for them to be fair.
The seven men and five women jury -- five blacks, four whites and three Hispanics -- was chosen from an original jury pool of 300. Prosecutors charged that the defense was trying to exclude white and Hispanic men, who are considered more likely to convict. The defense accused the government of trying to exclude blacks, because studies have shown they frequently view criminal prosecutions with greater skepticism. The main jury includes no Muslims; the alternate juror of Egyptian descent said she was born to a Muslim family but did not practice Islam.
The indictment -- a summary of evidence gathered mostly from phone wiretaps of what the government characterizes as “coded” conversations involving Hassoun and other suspected conspirators -- paints a picture of an alleged North American cell involved in Muslim charities, an Islamic newsletter and jihad recruitment. But it cites no specific acts of violence by Padilla or other recruits.
The presiding federal judge, Marcia Cooke, has warned the prosecution team to limit references to Usama bin Laden, declaring that the Padilla case has no connection to him or his masterminding of the Sept. 11, 2001, terrorist attacks. She also cautioned prospective jurors that the Miami indictment has nothing to do with the ''dirty bomber'' charge.
She has also excluded from evidence a seven-page summary prepared by the government, which it says is based on classified statements by Padilla and other alleged al Qaeda detainees. The summary says Padilla admitted attending the hajj pilgrimage in Saudi Arabia in March 2000, when he met an al Qaeda recruiter and became interested in going to Afghanistan. It also says he admitted that ''he attended the al Qaeda-affiliated al Farouq training camp in Afghanistan in September-October 2000 under the name Abdullah al Espani.''
There, Padilla is said to have admitted receiving training in weaponry, explosives and communications. The government summary says that, about a year later, Padilla acknowledged meeting with senior al Qaeda associate Abu Zubaydah for the first time at the Afghanistan-Pakistan border. During a second meeting, Padilla is alleged to have said he and an accomplice, an Ethiopian later identified as Binyam Ahmed Muhammad, “presented to Abu Zubaydah plans for an operation in which they would travel to the United States to detonate a nuclear bomb they learned to make on the Internet.''
The summary says Zubaydah ''was skeptical of the idea,'' but still sent him and his partner to Pakistan to present it to Khalid Sheik Mohammed, al Qaeda's
operations chief. It claims that Padilla and his partner met with Mohammed in March 2002 in Karachi, where Padilla presented the dirty bomb plan.
Padilla said the al Qaeda commander thought ''the idea was a little too
complicated.'' He suggested that Padilla blow up apartment buildings in New York City, Washington, D.C., and Florida, according to the government’s summary.
It alleges that ''Padilla now admits that he accepted the mission,'' and a month later, left Pakistan for Egypt, and later flew to Chicago's O'Hare International Airport, where the FBI arrested him. Authorities say he was carrying $10,526 he allegedly received from al Qaeda for his apartment-bombing mission, according to the summary.
However, jurors will hear none of this because the indictment does not accuse Padilla or his co-defendants with any of these alleged crimes.
Given the original sensational allegations and the worldwide publicity they attracted, some legal experts think the Padilla trial is bound to be something of an anti-climax.
According to University of Miami law Professor Stephen Vladeck, who had filed a Supreme Court brief challenging Padilla's detention. “For what was supposed to be this grand, central case in the government's war on terror, this is going out with much more of a whimper than a bang.''
Robert Chesney, a specialist in national security law at Wake Forest University,
termed the prosecution pragmatic, analogous to “going after Al Capone on
But a spokesperson for Human Rights First, a legal advocacy group, says this will never be an ordinary, pragmatic prosecution. “If Jose Padilla were from Day 1 just charged and tried, then maybe,” she said. “But this is a case that comes after three and a half years of the most gross deprivation of human rights that we’ve seen in this country for a long time.”
She also noted that the government has reserved the option, should its case fail, of returning Mr. Padilla to military custody. This “casts a shadow” over the current prosecution, she says.