Terror case against U.S. citizen not so easily proven

BY JAY WEAVER
Detroit Free Press
Aug. 31, 2006

MIAMI -- On a visit to Moscow in 2002, then-U.S. Attorney General John Ashcroft trumpeted on television 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 Florida.

Ashcroft branded Padilla an "Al Qaeda operative," and he was held for more than three years without charges as one of a few U.S. citizens designated as so-called enemy combatants in the war on terrorism.

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 of being a recruit for an alleged south Florida terrorist cell.

Now the 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 that it repeated charges in other counts that alleged that they agreed to support terrorists overseas -- a violation of the Constitution.

An open-and-shut case?

Cooke's ruling, which the U.S. Attorney's Office will appeal, eliminates the possibility of life sentences for the three defendants. If Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi are convicted on the remaining terrorism charges in January, they could face up to 15 years in prison.

So what was presented as an open-and-shut terrorism case is proving 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 ... 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 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 without charges to his indictment in Miami federal court last November.

As a Yale Law School student, he worked on an amicus brief that challenged Padilla's detention in a South Carolina Navy brig -- an appeal that came close to being reviewed by the U.S. Supreme Court.

Some doubt the evidence

Like Tobias, Vladeck raised doubts about the strength of the government's evidence -- not only in light of what Ashcroft said about ties to Al Qaeda but also in what his successor, Alberto Gonzales, said when the Miami indictment was announced.

"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."

Determining what's a crime

Another legal scholar, Robert Chesney at Wake Forest University School of Law in Winston-Salem, N.C., said 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 national security law expert.

But the judge has just 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 prosecutors only have to show that the defendants agreed to provide resources to further the violent activity of Islamic extremists engaged in jihad, or holy war, overseas -- not necessarily be involved 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.












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