By Dan Eggen
Washington Post Staff Writer
Sunday, November 19, 2006
After he was arrested in 2002, Jose Padilla was considered so dangerous that he was held without charges in a military prison for more than three years -- accused first of plotting a radiological "dirty bomb" attack and later of conspiring with al-Qaeda to blow up apartment buildings with natural gas.
But now, nearly a year after his abrupt transfer into a regular criminal court, the Justice Department's prosecution of the former Chicago gang member is running into trouble.
A Republican-appointed federal judge in Miami has already dumped the most serious conspiracy count against Padilla, removing for now the possibility of a life sentence. The same judge has also disparaged the government's case as "light on facts," while defense lawyers have made detailed allegations that Padilla was illegally tortured, threatened and perhaps even drugged during his detention at a Navy brig in South Carolina.
The Justice Department denied the allegations of torture last week and is pursuing an appeal of the conspiracy ruling in hopes that the charge will be reinstated. Prosecutors on Thursday also took the unusual step of revealing that Abu Zubaida, an al-Qaeda lieutenant now imprisoned at Guantanamo Bay, Cuba, was a key source who led authorities to capture Padilla.
But some legal scholars and defense lawyers argue that the government's case is so fundamentally weak, and its legal options so limited, that Padilla could draw a relatively minor prison term or even be acquitted. The trial has already been postponed once, until January, and is almost certain to be delayed again.
The difficulties have reignited a debate in legal circles over whether terrorism suspects such as Padilla can be effectively prosecuted in regular criminal courts, or whether the Bush administration blew its chances by relying on questionable interrogation methods that cannot be used to build a criminal case.
Stephen I. Vladeck, an associate law professor at the University of Miami who has closely watched Padilla's case as it has unfolded in South Florida, said an acquittal or mixed result "would certainly add fodder to the position that the courts are not set up to handle these kinds of cases. But it also adds fodder to the other side that says they never had anything to begin with.
"This is the government's shot," Vladeck said. "It's certainly not near as strong a case as it was made out to be when the indictment was unsealed."
Padilla, now 35, was born in Brooklyn, N.Y., and had a history of criminal trouble as a teenage gang member in Chicago before moving to Florida and converting to Islam in the 1990s. He was first thrust into the spotlight in June 2002, when then-Attorney General John D. Ashcroft made a television appearance from Moscow to announce Padilla's arrest and designation as an "enemy combatant" by President Bush.
Two years later -- facing growing legal challenges over its decision to indefinitely detain a U.S. citizen without charges -- the administration took the unusual step of outlining a host of new allegations against Padilla, playing down the original accusations involving a "dirty bomb" plot.
James B. Comey, then the deputy attorney general, detailed Padilla's alleged travels around the Middle East from 2000 to 2002, including a trip to an al-Qaeda training camp in Afghanistan, meetings with senior al-Qaeda leaders and preparations for blowing up apartment buildings inside the United States.
Comey characterized many of these allegations as based on admissions by Padilla, and was candid in saying that much of the information could not be used in a criminal court -- a fact that has greatly complicated the government's position in the current case.
Attorney General Alberto R. Gonzales announced Padilla's indictment in late 2005, when he was added to a previous terrorism-support case in South Florida. By moving Padilla into criminal court, the administration managed to sidestep a potential ruling from the Supreme Court on whether the government had the authority to hold a U.S. citizen such as Padilla without charges.
The indictment did not mention the previous allegations against Padilla, or any planned attacks on U.S. soil. Instead, it alleged that Padilla joined two other defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, in funneling money to terrorist groups for battles overseas.
Padilla's defense team, led by lawyers at the federal public defender's office in Miami, has attacked the case on several fronts, pushing for access to the alleged evidence against Padilla while also arguing that ill treatment during his confinement has polluted the government's case.
U.S. District Judge Marcia G. Cooke, appointed by Bush in 2004, rejected prosecutors' efforts to make defense attorneys adhere to special security restrictions and ordered the government to provide more access to evidence.
Padilla's attorneys say that his voice is heard on only eight of about 50,000 FBI wiretap recordings in the case, and that there is no mention of violence or jihad on any of the recordings connected to him.
In a motion to dismiss the case in October, federal public defender Michael Caruso and his team also alleged that Padilla "was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla's torture was stark isolation for a substantial portion of his captivity."
Among other things, the defense alleges that Padilla was held for 1,307 days in a 9-by-7-foot cell, isolated for days or weeks at a time, physically assaulted and threatened with execution and other violence, kept awake with lights and noises, and forced to take mind-altering drugs, possibly PCP or LSD.
The government counters that Padilla offers no evidence to back up the allegations and that, besides, his treatment by the military is irrelevant to the criminal case against him.
Robert M. Chesney, a specialist in national security law at Wake Forest University, said he thinks the government will be able to fend off many of the current challenges to its case, including Cooke's decision to throw out the murder conspiracy charge.
But he and other legal scholars on both sides of the debate say that the government's case could prove troublesome in front of a jury because of Padilla's seemingly minor role in the alleged conspiracy. It also remains to be seen whether the administration might try to rename Padilla as an enemy combatant if its prosecution begins to fall apart.
"I think the prosecution is ultimately going to emerge victorious on these legal questions," Chesney said. "But, from Day One, we've never had sufficient admissible evidence to fully prosecute Jose Padilla. That's the real problem they have, and it's been a problem from the beginning."
Staff researcher Julie Tate contributed to this report.