Reflections On Padilla

tmpphpkmcliy.jpgLooking back, there was a part of the trial I “missed” and thus couldn’t share with you or comment upon. It happened before the trial itself actually started. I think if I had been as aware of it then as I am now, I would have forecast a much gloomier conclusion.

The issue centered around the question if Padilla was psychologically able to help his attorneys in his defense, whether he was mentally competent. Let Miami Herald reporter Fred Grimm, as he did January 18, 2007:

The accused was held in extreme isolation for 1,307 days. Held in a nine-by-seven-foot cell. The only window blacked out. He was the lone prisoner on the two-tier cellblock. He was given food through a slot in the door. He slept on a steel mattress. No reading material. No calendar. No clock. Nothing to connect him to the outside world.

But it was the short trip down the hallway for a dental examination that captured the utter isolation and sensory deprivation inflicted on Jose Padilla during his 3 ½ years in the Navy brig at Charleston, S.C.

Helmeted guards, their faces obscured behind dark plastic visors, manacled his hands and feet through slots in his cell door. (more…)

Hysteria on Trial

tmpphpjyqqux.jpg In Chicago, we don’t have many stars. Al Capone was a star criminal. Almost single handedly, with a baseball bat and machine gun, he created the nation’s first permanent criminal enterprise which almost eighty years later runs smoothly. Mayor Richard J. Daley (the older guy) was a star politician, creating, maintaining and even strengthening the nation’s smoothest running political machine, so powerful that it could hand John F. Kennedy the Presidency by holding back the vote in Chicago precincts till he knew exactly how many ballots would have to be created out of thin air to win. Michael Jordan was a star athlete, the Baryshnikov of basketball, bringing millions of Chicago victory-starved sports fans trophy and trophy after trophy.

But when Assistant United States Attorney Brian K. Frazier called Jose Padilla, Chicago’s not-very-bright–wanna- be, a star recruit for Al Qaeda, he gave hyperbole a whole new meaning. Then the prosecution dug back in their paltry bag of cookies to the original indictment to proffer three chilling acts, telling jurors that Mr. Padilla attended a training camp in Afghanistan “to learn how to kill, kidnap and maim according to Al Qaeda’s techniques.”


Patriotism Worth Its Name

louisfisher.jpgPatriotism worth its name grants the highest priority to the nation, not the Chief Executive, and knows the difference between the two.

Louis Fisher and I have two interests in common: Jose Padilla and tennis.

Fisher happens to be one of the nation’s foremost authorities on arbitrary imprisonment and stretching presidential power and is a senior scholar in the Law Library at the Library of Congress and author of more than a dozen books, several of them landmark works dealing with unchecked presidential power –titles including Presidential War Power, Constitutional Conflicts between Congress and the President, Military Tribunals and Presidential Power. Then there’s the first book of his I read —Nazi Saboteurs on Trial – A Military Tribunal & American Law–which led me to the conclusion that Bush and then Attorney General John Ashcroft had gotten the basis for Padilla’s arrest completely wrong,

The case of the eight Nazi saboteurs who landed on the East Coast in June 1942 (often referred to as the Quirin decision) was a classic rush to judgement by everyone from the President to the Supreme Court and later, as the hysteria faded, Presidents, prosecutors and Justices realized how legally flawed the effort had been Even to the point where Justice Felix Frankfuter later remarked, “ [Quirin] was not a happy precedent.” But that was the exact precedent the Government chose for the prosecution of Padilla.

Fisher’s recently published article in the Journal of National Security Law & Policy, “Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power” is the best expose of Bush’s unconstitutional overeaching. Since the article is 51 pages long and 287 footnotes, let me mine the pure gold of the article’s conclusion:

The treatment of Padilla and other enemy combatants by all three branches of government has done much to impair the rights of defendants, going far beyond the boundaries mapped out by the Supreme Court in Quirin [the Nazi Saboteurs] and Yamashita [the Japanese General put on trial following the end of World War 2 by a military court for violations of the law of war.] The [Bush] Administration claimed the right to hold U.S. citizens as enemy combatants and detain them indefinitely without being charged, given counsel, or tried. Alexander Hamilton expressed the fear of arbitrary imprisonment, where there is no opportunity to prove one’s innocence:

The observations of the judicious Blackstone . . . are well worthy of recital: “To bereave a man of life, [says he,] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation.” (Emphasis added.) The Federalists No 84, at 533 (Benjamine F. Wright ed, 1961)


And The Days Dwindle Down To A Precious Few…

tmpphpbn4vmb.gifSadly, it’s anti-climactic. The defense rested its case yesterday. The case against the three conspirators is basically at an end, save for rebuttal witnesses and closing arguments. The government has alleged and theorized about its vague and shadowy conspiracy charges involving terrorists somewhere on the planet and the defense has insisted proof being proven and contending no such documentation exists. None.

Truth be told, it all seems so weary now if it weren’t for the fact that the freedoms guaranteed by the Bill of Rights and some of the most critical Supreme Court decisions protecting those freedoms, hadn’t been grossly violated by this corrupt Bush-Gonzales regime. Can you find any non-ideologue in this nation who doesn’t believe the Attorney General is a liar, a perjurer?

As the trial comes to a close, it’s important to single out reporters from the often (and often deservedly) maligned Main Stream Media (MSM) who have been covering the Padilla trial from the very beginning and who, to their credit and to the credit of the profession of journalism, have not wearied in pointing out the gas in the government’s case.

I want to name names and then provide one sample of those who almost daily churn out responsible, fair stories about the trial.


Let ‘er Rip

tmpphpawd9ev.jpgAnthony Natale, Padilla’s attorney these past tumultuous five years, cooly informed US Federal Court Judge Marcia Cooke this week that he would not be calling no witnesses on his client’s behalf. None.

It was a not-very-subtle way of signaling that the paucity of the government’s case against Padilla isn’t even worthy of a rejoinder, that he wouldn’t even dignify the credibility of the charges against his client and their unconvincing witnesses by providing no rebuttal witnesses. It appears that closing arguments will be the week of the 13th.

So suddenly the terrorists conspiracy case against Jose Padilla, and his two relatively unknown alleged co-conspirator is coming to a very anticlimactic end–not with a bang but a whimper.

This seemed to be the single sloppiest, high-stakes case in Federal Court ever. But I learned, to my surprise, that many government cases alleging terrorism with the Justice Department in charge have a record of failure and mismanagement.

Laura Parker at USA Today consulted legal scholars and terrorism experts about government allegations of terrorism. statistics.

“What we see time and again is a big press conference and Justice Department statements about how we’re prosecuting the war on terrorism, and then the cases either fizzle out (more…)

Fava Beans and Babies

tmpphptdryim.jpgFederal prosecutors have based all of their evidence against Jose Padilla on one document with his signature and his fingerprints. Message to each juror being, “We are from the Justice Department – would we lie to you?”

In the 10 weeks that this conspiracy trial has taken place, where Padilla, Hassoun and Kifah are charged with conspiracy to murder, kidnap or maim people outside the United States, there have been some remarkably creative plays on many vague words, innocuous syllables, virtuous letters, said to reform in crafty variances of pure evil. You – ladies and gentlemen of the jury, the press, the citizens tuning in at home or abroad – are supposed to be convinced of their guilt based on intuition, guesswork.

You – we – are supposed to believe that phrases and words like “playing football”, “eating cheese” and paying $3,500 for “zucchini”, were code for nefarious, illegally evil terrorist deeds and actions for which these three should spend the rest of their lives in jail. Indeed, there was no sting operation which managed to collar these men inside a house with stockpiled weapons, documented plans or poisons. Instead of Semtex, they netted an endless pile of syntax.

The prosecution would have us all believe that words, perhaps millions of surreptitiously tape recorded words, have suspicious, duplicitous terrible hidden meanings. The Feds have 300,000 taped phone calls. Two hundred and thirty of those conversations form the core of the prosecution’s case, of which 21 make reference to Padilla. Of those tapes, Padilla’s voice is heard in only seven of them, and not a single time is Padilla discussing violence. The prosecution hasn’t produced one weapon used for murder, not one blindfold to be used in a kidnapping, not one knife to be used in a maiming.

The government has not allowed the jury or the public to view eighty-seven video tapes of Padilla being questioned in solitary confinement where we could see him, blindfolded, his ears muffled. This could prove that he was or wasn’t handed a piece paper or told to scribble his name in exchange for an extra ten minutes in the exercise yard. Why hasn’t the prosecution shown those tapes?

It doesn’t matter that the Feds have brought in their translators, a CIA operative-in-disguise, and one expert in terrorism whose expertise seems available only to governments. The case boils down to 300,000 telephone conversations with the jury listening only to a teeny-weeny,itsy-bitsy portion of the transcriptions. The prosecutions have made their selections. Here’s one of mine.

Here is part of one phone call on one day –2/08/97 August 2, 1997 never before revealed.


Deeds Not Words

lewresize.gifBasically these are the charges against Adham Amin Hassoun, Kifah Wael Jayyousi, and Jose Padilla:

that they conspired to commit acts of murder, kidnapping, and maiming outside the United States, that they committed one or more overt acts in the United States in furtherance of those acts, providing material support and resources, and concealing and disguising the nature of those actions to be used in preparation for a conspiracy to murder, kidnap or maim on foreign soil

It’s clear the prosecution isn’t talking about actual deeds committed by terrorists. But what evidence has the prosecution presented of planning to commit deeds of terrorism? The defense is currently disputing the “few bits” of alleged evidence.

Here’s how Warren Richey of the Christian Science Monitor sees it:

The three [Hassoun, Jauuousi and Jose Padilla] are facing charges that they plotted to spread violent jihad through a murderous campaign around the world. But federal prosecutors say it is unnecessary to link the terror suspects to an actual plan of terror.

Instead, government lawyers argue that a series of shady phone calls and a few documents are enough to establish the existence of a terror conspiracy and send all three defendants to prison potentially for the rest of their lives.

But after an eight week presentation of evidence by the government, prosecutors have not identified a single individual as a potential target for murder, kidnapping, or maiming, nor have they identified any specific plot to accomplish someone’s murder, kidnapping, or maiming.. 

While no one bets on the outcome of a jury trial, the government has set out a record of spectacular failure when it comes to terrorism cases. Laura Parker at USA Today consulted legal scholars and  terrorism experts about government allegations of terrorism statistics.



judge-judy.jpgThere is something terribly wrong with the federal judicial system when a United States District Court Judge appointed by President George W. Bush can joke about a defense attorney’s request for directed verdict of not guilty in a case where the defendant before her might possibly spend the rest of his life in jail.

There also may be something terribly right with the federal judicial system when a United States District Court Judge appointed by President Clinton can write a 64 page memo with 190 footnotes dismissing fraud charges because the Justice Department prevented the defendants from putting on a defense on their own behalf.

In the Padilla first case, Judge Marcia Cooke appears to have walked a tightrope pulled taut by the zeal of the Justice Department. While she refused to have Padilla appear in her courtroom in handcuffs, she also made it clear that she wasn’t interested in how Padilla had been treated for three and a half years in a Naval brig where he suffered from systematic sensory deprivation at the very least and possibly other forms of torture. The judge was certain this treatment didn’t render him mentally unfit to stand trial. From there it was mostly downhill for Padilla and his two co-defendants, Adham Hassoun and Kafah Jauuouisi charged with conspiracy to “commit acts of murder, kidnapping, and maiming outside the United States.”


Whose Conspiracy?

lew718.JPGThe government has concluded its case against Jose Padilla and yesterday, to no one’s surprise U.S. District Court Judge Marcia Cooke refused a defense request for directed verdict of not guilty. Assistant U.S. Attorney Brian Frazier claimed “I think it is a very tightly knit conspiracy.”

Indeed there has been a tightly knit conspiracy but not the one Frazier is trying to portray.

The conspiracy – and one doesn’t need 300,000 wiretaps to expose it — is between President Bush, his chosen legal representatives – former Attorney Generals John Ashcroft, former Deputy AG James Comey, current AG General Alberto Gonzales and the representatives in a Miami Federal courtroom prosecuting the case against Jose Padilla — Frazier, John Shipley, Russell Killinger and Stephanie Pell. It is a conspiracy to commit of a travesty of justice. A conspiracy of dunces.

On the day Padilla’s capture was announced to the American public by then Attorney General Ashcroft via satellite from Russia (n doubt during KGB Heritage Month,) took its brand new “John Yoo Constitution” out for a test drive. Ashcroft flat out accused Padilla of being “an al-Qaida operative…exploring a plan to build and explode a radioactive “dirty bomb.” Bush immediately followed by declaring (more…)

Looking on the Bright Side

atomic-resize.JPGGood evening Mr. and Mrs. North and South America and all the ships at sea…..LETS GO TO PRESS! FLASH! BULLETIN! THIS JUST HANDED ME!

The prosecution has concluded its case against Jose Padilla, and two others charged with conspiracy to help support violent Islamic extremist groups worldwide. The total hard evidence against Jose Padilla consists of an alleged Al Qaeda training camp application form document Padilla allegedly signed in July 2000. The paper was among a myriad of documents handed to a CIA agent in a remote area of Afghanistan by a complete stranger.

Now back to our regularly scheduled programming.

Return with us now to those thrilling days of yesteryear, a little over five years ago (06/10/02) when our Attorney General at the time, John Ashcroft announced:

I am pleased to announce today a significant step forward in the War on Terrorism. We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or “dirty bomb,” in the United States.

Of course he was speaking of “Abdullah Al Muhajir (born Jose Padilla).” Ashcroft concluded his remarks with these thoughts, which could only make the nation feel more secure.

To our enemies, I say we will continue (more…)