padilla.JPGThe Bush Justice Department has had more than five full years to prepare a case against Jose Padilla. And each time it does, it falls apart. The “dirty bomber” charges didn’t stick. Charges of blowing up high-rise apartment buildings blew away in the wind. Now, that Padilla is receiving a full trial, armed with his own lawyers, ther prosecutorial skills seem to flee like so many vampires before the dawn.

In 2004, the Justice Department knew for certain that Padilla would soon be free. How did they know that? The Supreme Court told Padilla’s attorneys and then provided them with a legal roadmap showing how - if they made a few minor technical changes in the lawsuit - the Court would vote just as they had for U.S. citizen Yaser Esam Hamdi who also had been denied his constitutional rights.

But in 2004, following the Supreme Court notification, the Justice Department cheated. They mooted (dropped) the terrorism charges against Padilla (the ones that garnered those Bush-foils- dirty-bomb headlines.)

Instead those Federalist Society legal minds at Justice came up with fresh (er, make that stale) charges for Padilla: “conspiracy to murder, kidnap and maim” unnamed people outside the United States. They made those charges in a Federal Court in Florida because the government already had two people there, Adham Hassoun, a computer programmer in Broward County, Fla. and civil engineer Kifah Jayyousi, already under indictment in Florida for those same charges.  

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Days into the Padilla trial the prosecution presented what was to be their key witness. This was a repentant Yahya Goba, sentenced in his 20s to 10 years in prison for being a terrorist and testifying, he said,  in hopes of  leniency. Goba, was the prosecutors' “second” serious witness and had been a member of Yemeni-American Al Qaeda “sleeper cell” in Lackawanna, N.Y. (The first had been a “disguised” CIA agent who, though only able to speak and read English, miraculously made his way through a truck load of documents given to him by an anonymous Afghani whereupon, our intrepid CIA agent just happens upon an Al Qaeda recruitment document (in Afghani) signed by Padilla.)

Warren Richey of The Christian Science Monitor captured the chaos of the government’s case brilliantly in his May 21, 2007 story.

... [T]he picture of Goba that is emerging from the witness stand at Padilla's trial is less menacing than federal prosecutors had hoped. Rather than boosting the government's case, his testimony appears to be helping Padilla make his..               

The government had hoped to use the fact of  Goba’s “terrorist training” in Afghanistan as a replica of the training Padilla had undergone.

In this cross examination, captured by Richey, we see why the Justice Department never wanted  Padilla to have his own attorneys.

"Are you now, or have you ever been a terrorist?" Padilla defense lawyer Michael Caruso asked.

            "No," [Yahya] Goba answered.

"You felt that it was necessary to do this training so that if called upon, you could help your [Muslim] brothers and sisters facing atrocities all over the world?" Mr. Caruso asked.

            "Yes," Goba said.

Defense lawyers asked Goba to explain his beliefs about jihad, or Islamic holy war. He agreed that jihad can represent an inner struggle within a Muslim and that when it takes the form of physical fighting, it is only acceptable in defense of Islam and Muslims. (Emphasis added)

"So murder is not jihad?" asked William Swor, a lawyer for a Padilla codefendant. "Unfairly injuring someone is not jihad?"

            "Yes," Goba answered to both questions.

Richey summed up how well the prosecutors had done.

By the end of the cross examination, prosecutors knew they were in trouble...”

So – what do we have, so far?. A CIA agent who can’t read any Afghani finds a recruiting application in Afghani signed by Padilla. Goba? He says jihad is not murder, so saying Padilla was bent on jihad didn’t mean all that much.

What does the Justice Department have in the way of evidence?.

They have 300,000 taped phone conversations, of which 230 phone calls are the heart of its case. Of those 230 calls, 21 make reference to Jose Padilla. Of those 21 phone conversations, Padilla’s voice is heard on seven. Of those 7, there are discussions about having some “picnics,” so they could “smell fresh air and eat cheese” and oh, yes, a very “significant”  blather when Padilla talks about spending $3500 on “zucchini.” No talks of terrorists acts, no bombs. Nothing.

The government claims the food references were code.

Even if this conjecture is true, can the government prove zucchini translates to terrorist bombs? What vegetables are code for murder, kidnapping, and maiming?

(With Rachel M. Koch) 

Lew can be reached at lew dot koch at gmail dot com.

(Still from Exhibit E, Docket No. 695, Filed December 1st, 2006 - USA et al vs. Hassoun et al, U.S. District Court, Southern District of Florida;)