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There comes a time in every trial when it becomes totally, and absolutely boring.  That moment has arrived for the prosecution. They are now reading aloud to the jury transcripts of telephone conversations between the alleged conspirators.

Since the conversations are in code – zucchini, cucumbers, radishes -- perhaps the readers of FDL might be diverted by a break from the transcript and a peek into be interested in some real life spy games.

“So– you’d like to ...Start another CIA? ”    

Here you can purchase “Spy Survival Handbook,” “Mircro Spy Kit X-2,” “Eye Link Communications,” “Spy Truth Detector,.” Voice Scrambler,”“Spy Pen,” and “Spy Camera.”
       
What is not available at Amazon (until you are 21 years old) are copies of the torture memos:  “The President’s Constitutional Authority To Conduct Operations Against Terrorists and Nations Supporting Them” written by now Yale Law School Professor John Yoo or “Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340 2340A ," written by Jay. S. Beebe, then with Bush’s Office of Legal Counsel but then, as a reward for his diligence, a lifetime appointment to the 9th U.S. Circuit Court of Appeals.       

*    *    *

The Roman statesman Cicero put it this way a very long time ago: silent enim leges inter arma – the law is silent in wartime. (Cited by Howard Zinn in Peter Irons’ “A People History of the Supreme Court .”

So – let us consider the law’s silence in terms of our current war on terror–and then what passes for law in wartime, which is, in the Padilla case, more aptly termed “noise.”    

The law is silent, now, about the previous charges that Jose Padilla was a “dirty bomber.” The jury will hear none of that. The jury has also been deliberately prevented from hearing anything  having to do with Padilla’s alleged plans for destroying U.S. apartment buildings. Consigned to the “silent” category, at least for now, are 87 taped confessions extracted from Padilla during his 1,000 plus days in solitary confinment, undergoing interrogation in the Charleston Naval brig. This is where, according to then-Deputy Attorney General James Comey, Padilla confessed  to conspiring to blow up high rise apartment buildings via the use of gas stoves.

But Federal Judge Marcia Cooke, presiding over the Padilla trial, has issued a gag order. (A couple of years too late to stifle Comey’s exploding stove’s charges.)  The jury will not be allowed to view those taped confessions, though the tapes have, in fact, been turned over to the defense.  The jury as well as the defense won’t see tape number 88, the last taped taken. It’s..missing. Perhaps its in the same silent place as the missing 18 1/2 minutes of Nixon’s Watergate tapes?  Some day we’ll have a lawyer of Dante Alighieri’s quality to categorize the levels of silence when justice must be carried out in the inferno of war..
 
The hard evidence in this conspiracy case (forget the “dirty bomb,” forget exploding apartment buildings) consists of 300,000 taped telephone conversations. Of those 300,000 exactly  230 taped phone conversations make up the evidence, the so-called “heart” of the “conspiracy.” Of those 230 conversations, 21 of those calls made reference to Padilla, with only seven phone calls with Padilla’s actual  voice on the line. And those seven calls make no specific references to terrorist plans, ideas or thoughts-- unless the prosecution comes up with convincing proof that the word “zucchini” is code for destruction.

Another crucial piece of “hard evidence” is Padilla’s al Qaeda application form, originally in Arabic, produced by a disguised CIA agent. (See my “One of these is not like the other? ” column) ABC News has the five-page document in both English and Arabic. Remember, the CIA agent discovered the document only in Arabic but claimed to have made out Padilla’s birthday and nick name, Abu Abdallah Muhair. Very fortunate for someone who was given a truck load of documents and a non-Arabic reader., to encounter that form.

And who would have expected the Mujahadeem to have an application form that looks like it’s been developed by the al-Qaeda H.R. department? As Dinocrat ruefully notes, it’s “pretty funny if it weren’t for the annoying fact that these people want to kill us.”

These are some of Padilla’s answers from the translated form:

Field: Carpentry
Profession: Student
Religious subjects studied: Language and Quran   
Can you return to your country? Yes, with no problems.
Have you traveled to countries other than Afghanistan (optional) : Yes
What are they?  Egypt, to study - Saudi Arabia for Hajj- Yemen, as a way to go through for Jihad


How can we be sure this form was filled out by Padilla? Padilla’s fingerprints are on the document now? As Carol J. Williams of the Los Angeles Times points out:

John Morgan, the fingerprint analyst, who is now with the Secret Service, testified [for the prosecution] that he examined the application form in August — more than six years after Padilla allegedly filled it out and 5 1/2 years after the FBI obtained it. (Emphasis added)        

Does any one have to point to the three and a half years Padilla spent in the brig, often blindfolded subject to torture. Is it a stretch to imagine someone holding a pack of papers out to Padilla and ordering him to “take it?”               

The “hard evidence” thus far doesn’t seem to challenge Judge Cooks’s first take at the pretrial hearing, that the prosecution is “very light on facts,” facts that would substantiate the accusation that Padilla, indeed, conspired with Asham Amin Hassoun and Kifah Wael Jayyousi to “murder, kidnap and maim” people overseas and provide support to terror groups. So far the jury has:

1. An alleged al-Quaeda recruitment application questionnaire in which Padilla gave his birthday and assumed Arabic name;

2. Fingerprints on the al Quaeda application found six years after Padilla allegedly filled it out and 51/2 years after the FBI obtained it, and produced 3 1/2 years after Padilla was held with no charges placed against him, blindfolded and chained in the brig. (We’re putting aside the allegations of torture.)        

3. The testimony of confessed and convicted prosecution Yahba Goba, one of the Lackawanna Six who went to al Qaeda military camp (different from the one Padilla allegedly visited) where he, Goba, learned to fire automatic rifles and set off explosions.  (More Friday)

And to come in the days and weeks to come:

Seven taped phone calls with Padilla’s actual voice, though his actual voice speaks of getting zuchinni;

Very light on facts, indeed.

What the prosecution doesn’t need to put into evidence are those “silent elephants” in the courtroom, the ones the jurors promised not to acknowledge or take into consideration when they eventually decided the case, the silent elephants they are, sadly, all to familiar with:.

  • Charges in every media outlet throughout the world that Jose Padilla had planned to explode dirty bombs.
  • Charges in every media outlet throughout the world that Jose Padilla had confessed to a plan to blow up high rise apartment buildings by exploding stoves.

“Silent enim leges inter arma“ The silence of the law in wartime , the silence Cicero referred to, has become deafening here in the United States. Does anyone seriously believe that the jury can ignore it? Can justice be blind and deaf?

(With Rachel M. Koch)

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

Please note that two figures in last Friday's column have been corrected as follows:"the eight, 123-foot Coast Guard cutters, built at a cost of $34 million" (the original read "billion") and "The Coast Guard now claims it will seek damages from Lockheed Martin and Northrop Grumman for eight failed patrol boats amounting to $60-100 million." (the original read "billion")