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Judge in terror case: Indictment 'very light on facts'

By CARRIE WEIMAR
Published April 30, 2007

MIAMI - Jose Padilla sat at the end of a long table surrounded by lawyers and watched as prospective jurors were called into the Miami courtroom one by one.

Dressed in a charcoal gray suit, he listened silently as U.S. District Judge Marcia Cooke quizzed each man and woman about feelings on the Sept. 11 attacks, the Muslim faith, their knowledge of "dirty bombs" and whether they have heard of Padilla.

Most had.

"If the facts are true, Jose Padilla is guilty, " one man wrote on his juror questionnaire.

"I remember hearing about the indictment on the news, " said another man. "Something about a bomb?"

At age 36, the former Chicago gang member has become one of the nation's most high-profile terrorism suspects. Padilla's 2002 arrest made global headlines when then-Attorney General John Ashcroft accused him of plotting to detonate a radiological bomb in a major U.S. city.

Today, Padilla and two co-defendants are accused of being part of a South Florida terrorist support cell that recruited volunteers and funneled money to Islamic extremists in Afghanistan, Kosovo, Chechnya and Afghanistan.

Jury selection in their federal trial began April 13 and is expected to last at least another week.

The 40-page indictment charging them with "conspiracy to murder, kidnap and maim" contains intriguing allegations of the men plotting in code language during wiretapped conversations. Padilla and his co-defendants were overheard saying they planned to spend $3, 500 on "zucchini" and discussed going on "picnics" so they could "smell fresh air and eat cheese."

But for all the suggestions of jihadist intent, the indictment does not tie them to any specific acts. At a pretrial hearing, Judge Cooke labeled it "very light on facts."

Padilla's lawyers have expressed outrage over the way the government treated their client. Named an "enemy combatant, " Padilla was held for more than three years in a military brig where he said he was tortured.

Now, as his trial begins, some in the legal community accuse the Justice Department and the Bush administration of botching the case. They say the vague nature of the charges illustrates a significant gap in the ability of U.S. courts to handle suspected terrorists.

"What Padilla is, is some guy from Chicago who thought he was going to make himself something special and talked a lot of smack, " said Charles Rose, a professor at Stetson University College of Law. "But at the end of the day, he didn't really do anything."

* * *

Born in Brooklyn, N.Y., Padilla moved with his family to Puerto Rico as a toddler. A few years later, the family relocated to Chicago, where Padilla joined a gang. They later moved to Fort Lauderdale.

According to court documents, Padilla began committing crimes at a young age and was charged with murder at 15. He was convicted and served time in Chicago. A string of arrests for drug possession, aggravated assault and weapons charges followed.

Padilla converted to Islam in a Florida prison while serving a year for a 1991 weapons conviction. In 1998, he flew from Broward County to Egypt, seeking spiritual enlightenment.

According to Justice Department officials, Padilla developed an interest in training with al-Qaida two years later during a pilgrimage to Mecca, Saudi Arabia.

After his arrest in 2002 at Chicago's O'Hare International Airport, Padilla was named an "enemy combatant, " which meant he could be held indefinitely without access to legal counsel at a military brig.

Federal authorities say that while at the naval brig in Charleston, S.C., Padilla confessed to training with al-Qaida. They say he admitted to participating in a scheme to detonate a uranium-enriched bomb in a major city. He also planned to blow up as many as three high-rise apartment buildings through natural gas explosions, federal officials said.

But none of those admissions could be used in court because Padilla didn't have a lawyer present during his questioning and wasn't informed of his constitutional right to remain silent.

Padilla, in court papers, said he was forced in Charleston to sleep on a cold, steel bunk without a mattress or blanket and was continually awakened by loud noises. He also said he was hooded and forced to stand in stress positions while shackled for hours.

The government has repeatedly denied those allegations.

Because prosecutors could not use evidence gathered while Padilla was in military custody, the charges of plotting to use a dirty bomb were dropped.

In November 2005, the U.S. Supreme Court asked the Bush administration to justify the decision to keep holding Padilla in military prison. Days before the briefs were due, federal authorities transferred Padilla to a civilian prison and added him as a co-defendent in an existing terrorism case.

* * *

Rose, the Stetson law professor, said the Bush administration's fundamental mistake in the Padilla case was failing to decide how he should be prosecuted after his arrest.

By holding him as an "enemy combatant, " the Bush administration thrust Padilla into a legal no man's land, governed by neither the Geneva Convention nor the Constitution, Rose said.

"At the end of the day, this is going to end with a whimper, " he predicted. "And the government is going to look foolish."

Rose, a former Army judge advocate, blamed what he called the increasing politicization of the Justice Department since the Sept. 11 attacks.

"There is phenomenal pressure on the Department of Justice to produce a win on the war on terrorism, and that's understandable, " Rose said. "But you can't throw the baby out with the bathwater."

The government's zeal to prosecute suspected terrorists has already led to one notable embarrassment, the Sami Al-Arian case in Tampa, Rose said.

Al-Arian, a former University of South Florida professor, and three co-defendants were tried in 2005 on a 53-count indictment alleging they conspired to raise money and provide support for Palestinian Islamic Jihad, a terrorist organization.

A jury found the defendants not guilty on many counts and hung on others. In the end, Al-Arian pleaded guilty to one count each of providing aid that did not involve violence.

Linda Moreno, a defense attorney who represented Al-Arian and who serves as a jury consultant for a defendant in the Padilla case, sees similarities, too.

"None of the defendants are charged with participating in any violence, " Moreno said. "It's the same as the Al-Arian case."

One of Padilla's co-defendants, Adham Amin Hassoun, is accused of acting as a recruiter and fundraiser for violent Muslim causes.

The other, Kifah Wael Jayyousi, was the publisher of the Islam Report, a newsletter prosecutors say was used to spread radical ideology and assist in terrorist support.

All three face potential life sentences if found guilty.

But Moreno, who also represents a defendant in Texas accused of ties to terrorists, said she's confident a jury will see there's little proof that Padilla and his co-defendants are directly responsible for any specific acts of terrorism. "I favor my government going after real terrorists, " she said. "I haven't represented one yet."

Carrie Weimar can be reached at 813-226-3416 or cweimar@sptimes.com.

[Last modified April 30, 2007, 02:12:44]