The "Dirty Bomber" Goes on Trial

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Alan Diaz / AP

Jose Padilla, 2006

Five years ago, Jose Padilla was the Dirty Bomber, a "known terrorist" at the core of "an unfolding terrorist plot" to wreak havoc on the United States with a "radioactive dirty bomb," as then-Attorney General John Ashcroft proclaimed.

But today, as opening statements commence at Padilla's federal criminal trial in Miami, he seems little more than some poor schmo who the government says got mixed up in a vague plan to support terrorist mischief abroad.

Padilla's downgrade from deadly menace to overeager errand boy is a tale of legal miscalculation and political overkill — a textbook case, critics say, of the overreaching of the Bush Administration's war on terror. Initially whisked away to the dark hole where "enemy combatants" go to be interrogated and held without charges, he emerged more than three years later as an almost conventional suspect endowed with constitutional rights. Gone were allegations of a dirty bomb and a scheme to annihilate apartment buildings. In their place were charges of conspiring to support terrorism and kill unspecified people overseas.

Padilla might well be a very bad man. But as he and two co-defendants face these charges in a trial expected to last four months, his story sounds depressingly familiar. Last September, the Justice Department crowed of 288 convictions or guilty pleas obtained in "terrorism-related cases." But the 288 were under a third of the total investigated, and only 81 brought sentences of five years or more.

"It's important to know that when the government says this person is really dangerous, it's not just exaggerating again," says Aziz Huq, director of the Liberty and National Security Project at New York University's Brennan Center for Justice. "Virtually every day we're on orange alert in this country, and at some point that's just not helpful."

Padilla first caught the government's eye in the 1980s. He was a teenager, a Chicago gang member who pulled an armed robbery and got sent to juvenile detention. Later, he went to adult prison for brandishing a gun in Florida, and he stayed there until 1992, when he turned 22. After his release, Padilla embraced Islam, and in 1998 he moved to Egypt. While on a religious pilgrimage to Saudi Arabia in February 2000, he got cozy with al-Qaeda operatives, who recruited him to train for jihad in Afghanistan, the government claimed in court records. On July 24, 2000, he allegedly filled out a five-page "Mujahadeen Data Form," or membership application.

Padilla was in Afghanistan when the U.S. invaded in October 2001, moving "from safe house to safe house," the court records say, until he made it to Pakistan. There he allegedly met suspected terrorist honchos like Abu Zubaydah (to whom he allegedly suggested making a dirty bomb) and Khalid Sheikh Mohammad (who allegedly told him to go to the U.S. and blow up apartment buildings).

In December 2001, a CIA agent received the Mujahadeen Data Form from an Afghani, who claimed to have found it in a safe house. When Padilla traveled to Egypt in May 2002, U.S. officials were hot on his tracks. They followed him on a flight to Zurich, and then to Chicago. On May 8, as he left the plane at O'Hare International Airport, customs agents pulled him aside and passed him to the FBI for questioning. He was allegedly carrying $10,000 in cash, a cell phone and a book containing numbers of al-Qaeda contacts.

Over the next month, the government tried to make a court case against Padilla. But on June 9, he was abruptly classified as an "enemy combatant" — someone who engaged in battle against the U.S. — and thrown into the brig at a South Carolina naval base. The following day in Moscow, Ashcroft announced Padilla's capture as "a significant step forward in the war on terrorism."

Padilla's path from the brig to a Miami courtroom has been riddled with fits and starts. On June 11 in New York (where he had first been held), the ACLU filed a petition for Padilla's release, arguing that as an American citizen captured on U.S. soil, he had to be let go or charged and tried in a civilian court. In December 2003, a federal appeals court in New York agreed, but then the government dodged a bullet: the Supreme Court ruled that Padilla's petition should have been filed in South Carolina, not New York.

So Padilla took another shot. This time, a federal judge in South Carolina ruled in his favor. But in September 2005 the Fourth Circuit court of appeals decided that, American citizen or not, Padilla could be held by the military indefinitely under the congressional resolution authorizing the war in Afghanistan. His lawyers asked the Supreme Court to review the case.

Meanwhile, the legal landscape had shifted. In June 2004, the justices had ruled that Yaser Hamdi, also an American citizen and an enemy combatant after capture in Afghanistan, could challenge his detention in court. Padilla's case seemed at least as strong (he was arrested in the U.S.), and while we can't be sure that made the difference, the government decided in November to move Padilla to civilian custody and charge him in federal court.

This shift in strategy did not go over well with the Fourth Circuit, which blocked the transfer until the feds could explain what looked like an improper attempt to manipulate the case. No matter. In April 2006 the Supreme Court refused to hear Padilla's appeal and allowed the criminal charges to proceed before U.S. District Judge Marcia Cooke.

In her own way, Cooke has also given the government headaches. The case, which consists of three counts against Padilla and his co-defendants for "conspiracy to murder, kidnap and maim" and give "material support" to terrorist activity, "is very light on the facts," she told prosecutors during a pre-trial hearing last summer. Just as significant, Cooke threw out the "conspiracy to murder" count because, she ruled, it duplicated the conspiracy mentioned in the two other counts. Her decision would have eliminated the possibility of a life sentence, leaving a maximum of 15 years in prison for each defendant, had it not been overruled by an appeals court.

Even when she has ruled for the government, Cooke has undermined its strategy. Prosecutors have understandably tried to keep the case focused on their primary evidence: the Mujahadeen Data Form and hundreds of wiretap recordings of men talking about spending $3,500 to buy "zucchini" and "playing football in Somalia." The prosecutors argue that all this is code for supplying Islamic terrorists in Somalia, Kosovo and elsewhere through a "North American support cell" allegedly headed by Adham Amin Hassoun — one of the defendants in the case — and joined by Padilla and the third defendant, Kifah Wael Jayyousi.

But in pre-trial motions, Padilla's attorneys have consistently tried to steer attention to what happened to Padilla during his three years and eight months in military detention — and to some degree Cooke has allowed them to do that. They contend that Padilla was tortured: fed LSD and other drugs, exposed to extreme temperatures, shackled in "stress positions" and deprived of sleep. The torture, they argue, made Padilla mentally unfit to stand trial and so undermined his constitutional right to a fair process that the whole case should be thrown out.

Cook ultimately rejected both arguments, but not before allowing defense lawyers to take testimony from guards at the brig. The government denies that any torture took place, and the guards didn't give up much detail, but prosecutors fought intensely to block such testimony or let any information seep into the public record about what might have happened during Padilla's detention. And if it ever existed, the evidence of a dirty bomb and attacks on apartment buildings is not expected to appear in the trial — possibly because it was obtained through improper interrogation of witnesses like Zubaydah (who says he was tortured) or even of Padilla, who at the very least was questioned without an attorney present, a no-no under the rules of criminal procedure.

What prosecutors are left with, then, is an underwhelming case involving cryptic evidence of a murder and terrorist conspiracy that lacks names, places or pretty much any other specifics. Even if they manage to pull off a conviction, we still won't know whether Padilla really was the Dirty Bomber. And if they don't? The government has the option of reclassifying him as an enemy combatant, which, believe it or not, could start the process all over again.