January 4, 2007, - 3:52 pm
By Debbie Schlussel
Today’s New York Times article on the trial, later this month, of Abdullah Al-Muhajir a/k/a Jose Padilla illustrates, yet again, why we need to treat terrorists as national security risks, not criminal defendants in a warped “justice” system full of liberal judges and just plain dumb ones.
Reading the article, I had visions of the Sami Al-Arian trial–also in South Florida–where federal prosecutors were unable to get a conviction of the Islamic Jihad terrorist leader.
In the Al-Arian case, at least prosecutors could introduce anything and everything (which they did, boring jurors to death).
In the Padilla/Al-Muhajir case, since the Department of Justice did not want to let the Supreme Court decide whether he could be treated as an “enemy combatant” with less rights, the government is hamstrung, and can offer very little evidence from the mountain of it on him, it appears.
Prosecutors decided to indict Padilla/Al-Muhajir, a U.S. citizen and convert to Islam, in U.S. federal court. Unfortunately, that means that most of the evidence they got out of him–most of his answers to questioning from the feds–will likely be excluded from trial. The government, in fact, has not even indicted Padilla for anything related to his involvement with a plot to obtain a dirty bomb.
Instead, the government will have to rely on scant evidence, perfunctory discussions in seven taped telephone conversations and very vague coded phrases that are hard to pin down. Additionally, it will rely on Padilla/Al-Muhajir’s application to join Al-Qaeda.
Like I did with Al-Arian, I may have to start a “Padilla/Al-Muhajir Walk Watch.”
Deciphering such chatter in order to construct a convincing narrative of conspiracy is a challenge. . . . Mr. Padilla’s voice is heard on only seven calls. And on those seven, which The Times obtained from a participant in the case, Mr. Padilla does not discuss violent plots. . . .
His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Mr. Padilla without formal charges for three and a half years. Those claims came from the government’s overseas interrogations of terrorism suspects, like Abu Zubaydah, which, the government said, Mr. Padilla corroborated, in part, during his own questioning in a military brig in South Carolina.
But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy. . . .
Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002.
But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel – whether or not he was mistreated, as his lawyers claim – would not be admissible in court.
And it is unlikely that information obtained during the harsh questioning of Al Qaeda detainees would be admissible, either . . . .
Probably as a consequence, the current criminal case zeroes in on what the government sees as an earlier stage of Mr. Padilla’s involvement with terrorism. It focuses primarily on the other defendants’ support during the 1990s for Muslim struggles overseas, especially in Bosnia, Kosovo and Chechnya. Mr. Padilla, who was appended to their pre-existing case, in which he had been an unnamed co-conspirator, is depicted as their recruit.
Although prosecutors have declined to discuss the government’s strategy, their filings and statements in court provide a picture of the case they are expected to present at trial.
The most tangible allegation against Mr. Padilla is that in 2000 he filled out, under an alias, an Arab-language application to attend a terrorist training camp. That application is expected to be offered into evidence alongside the wiretapped conversations, but Mr. Padilla’s lawyers say they will contest its admissibility, challenging the government’s assertion that the “mujahideen data form” belonged to their client.
Robert Chesney, a specialist in national security law at Wake Forest University, called the prosecution a pragmatic one, analogous to “going after Al Capone on tax evasion.”
I think the guys who successfully prosecuted Al Capone are turning over in their graves. If only they were here to conduct this prosecution, and were playing by the rules of that era. Based on the information from the telephone conversations, below, I think they’ll have a hard time convincing a jury, without the information they got while interrogating Padilla/Al-Muhajir, based on my experience as a someone who has done some criminal defense trial work:
Mr. Padilla’s lawyers and relatives say that he left South Florida for Egypt in September 1998 on a spiritual journey. A former juvenile offender, he converted to Islam as part of an effort to straighten out his life, they say. His mosque in Fort Lauderdale sponsored his travel, he told friends, relatives and F.B.I. agents who interviewed him in 2002. Mr. Hassoun belonged to that mosque, and the telephone transcripts seem to indicate that Mr. Hassoun helped, at the least, with Mr. Padilla’s travel plans.
The seven taped phone calls that bear Mr. Padilla’s voice involve conversations with Mr. Hassoun from 1997 to 2000.
On those calls, Mr. Padilla, unlike some of the other defendants, does not employ what the government says is coded language. According to the government, other defendants refer to their jihad-related plans as “getting some fresh air,” “participating in tourism,” “opening up a market,” “playing football,” and so on. This leads to silly-sounding exchanges where “the brothers” discuss going on “picnics” in order “to smell fresh air and to eat cheese” or using $3,500 to buy “zucchini.’
In contrast, Mr. Padilla’s seven conversations with Mr. Hassoun range from straightforward – Mr. Hassoun tells Mr. Padilla that his grandmother has died; Mr. Padilla tells Mr. Hassoun that he has found himself an 18-year-old Egyptian bride who is willing to wear a veil – to vaguely suggestive or just odd.
In one phone call, the two men talked about a dream. It appeared to be the dream that Mr. Padilla, according to his relatives, cites as having played a crucial role in inspiring him to convert to Islam: the vision of a man in a turban, surrounded by the swirling dust of a desert.
Mr. Hassoun brought it up and told Mr. Padilla that he himself had experienced the same vision. “What do you mean you saw the same dream?” Mr. Padilla asked.
“I saw the dream of the uh … person with the turban,” Mr. Hassoun said.
Mr. Hassoun explained how, in his dream, the turban was wrongly wrapped and so he thought the man might be a spy, in which case, he was prepared “to split his body apart.” But then, he said, he understood that “the brother … was a good one.”
“Yeah?” Mr. Padilla said.
In three of the seven conversations, Mr. Padilla made statements that the government has identified as “overt acts” in furtherance of the accused conspiracy.
In the first, Mr. Hassoun asked, “You’re ready, right?” and Mr. Padilla said, “God willing, brother, it’s going to happen soon.” That was the summer of 1997, a year before Mr. Padilla left South Florida for Egypt.
In the second, Mr. Padilla told Mr. Hassoun, during a 1999 conversation from Egypt, that he had asked his ex-wife in the United States to arrange for him to receive an army jacket, a book bag and a sleeping bag, supplies that he had requested because “there was a rumor here that the door was open somewhere.” In the third, Mr. Padilla told Mr. Hassoun in April 2000, that he would need a recommendation to “connect me with the good brothers, with the right faith” if he were to travel to Yemen.
Prosecutors say Mr. Padilla is mentioned, although by his Muslim name Ibrahim [DS: He also went by Abdullah Al-Muhajir.]or by another alias, on 21 additional tapes. One of them refers to Ibrahim as being “in the area of Usama,” which the government takes to mean that he was near Osama bin Laden. But Mr. Padilla’s lawyers contest that interpretation.
It sounds like the U.S. will have a very hard time proving much of anything, given all of this.
Hate to say it, but watch for the Padilla jury to be hung or let the guy walk. I correctly predicted the result of the Al-Arian trial. I hope I’m wrong here.
Civil liberties for a guy like this will ultimately end up in the loss of our ultimate civil right: life.
Thanks to Bill Warner, terrorism investigator and private eye extraordinaire, for sending the tip. If Bill were running the FBI or ICE in South Florida, things would get done.
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