Few Specifics Evident As Padilla Trial Nears
Monday, April 23, 2007
MIAMI -- The trial of Jose Padilla, the "dirty bomber" whose alleged plotting was used to justify extraordinary presidential power, will get underway next month, and the prosecution's case is rich in atmospherics.
The evidence against Padilla and his two co-defendants includes wiretapped recordings in which the men seem to speak in code; someone spent $3,500 to buy "zucchini." They speak obliquely of travel to Kosovo, Chechnya and "the area of Usama." A "mujahideen data form" bearing Padilla's fingerprints and information was discovered at a reputed al-Qaeda hideout in Afghanistan, prosecutors said.
But for all its suggestion of jihadist intent, the indictment on charges of a "conspiracy to murder, kidnap and maim" lacks anything about the defendants being involved in any particular plot in the United States or anywhere else. That absence of violent specifics -- no who, what or when -- is expected to be critical in the trial's outcome and is a reflection of troubles in the high-profile prosecution.
At a pretrial hearing in which defense attorneys complained about the ethereal nature of the alleged conspiracy, U.S. District Judge Marcia G. Cooke, in a startling aside, seemed to agree.
The indictment "is very light on facts," she told prosecutors.
Authorities have said that Padilla, arrested in May 2002, was plotting to attack the United States with a uranium-enhanced bomb. He quickly became the face of domestic terrorism and the most prominent of the Bush administration's terrorism suspects because of the president's controversial decision to detain a U.S. citizen militarily as an "enemy combatant." Once the Supreme Court seemed to tilt against that tactic, the administration moved him to the civilian justice system.
But ever since the former gang member and convert to Islam emerged from military imprisonment and landed in criminal court in January 2006, the prosecution seems to have faltered.
The dirty-bomb plot has disappeared from the allegations. The two sources who first told U.S. authorities that Padilla was a potential dirty bomber are not expected to testify, presumably because the federal government does not want them to or because prosecutors fear the testimony would be inadmissible. One of the two sources was Abu Zubaida, identified as a top al-Qaeda operative, who says he was tortured in U.S. custody.
None of Padilla's statements during military interrogations at the Charleston naval brig is expected to be presented in court, either, even though authorities said that in the statements Padilla confirmed his interest in a dirty bomb. For those interrogations, the suspect was not offered a lawyer, as required in criminal procedures.
Now, legal experts say, the effort to convict Padilla and his codefendants as part of a murderous international conspiracy -- without linking them to a particular violent act or to a terrorist group -- marks an attempt by prosecutors to place the defendants inside an extraordinarily broad conspiracy that spans years and continents. The case cites groups in Egypt, Algeria, Tunisia, Libya, Somalia, Afghanistan, Tajikistan, Chechnya, Bosnia and Lebanon. But the tactic could backfire.
With scant links to specific violent plots, a jury or an appeals court could find the outline of the alleged murder conspiracy too vague to support a conviction.
"Describing the entire jihad movement as a single conspiracy is a bit of stretch," said Robert M. Chesney, a Wake Forest University law professor and a moderate on the issues who has written extensively about terrorism prosecutions. "At trial, they're going to have to be more specific."