Friday, August 17, 2007

You may be a a terrorist if....

"For many defense lawyers, this was a cautionary tale for citizens," said Jonathan Turley, a law professor at George Washington University in Washington, D.C. "In the view of many in the legal community, they were successful in gaming the system."
My memory of criminal law and the rules of evidence is just strong enough to remind me that I don't remember enough about either to comment as competently as Jonathan Turley on the Padilla case, but from what little I know, to call this a "cautionary tale" is to understate its importance. There are, for example, several lay versions of the crime Padilla was accused (and convicted) of, none of which quite explain precisely what the charges were, nor what the charge to the jury was. I remember enough about trial procedure to confidently state that what really matters are the questions the judge asks the jury to answer; but those are usually technical in nature, and so specific to the facts of the case they seldom more than mentioned in a newspaper account; so questioning what happened in this case, it a bit of a mug's game. Still, a few probitive questions can be asked.

First, jurors were not told Padilla had been in solitary confinement for 43 months. I first regarded this as irrelevant to the charges the government finally brought, because they alleged a criminal act long before he was incarcerated, and nothing about his incarceration would go directly to his state of mind at the time the crime allegedly occurred. However, I have reconsidered that point. If the defense was unable to say Padilla was in a Navy brig for 43 months, they were unable to present any of the evidence of Dr. Hegar about Padilla's mental state now, a mental state clearly probitive of the question of his guilt. After all, at the end of 43 months of solitary confinement, Mr. Padilla:

He was terrified. For him, the government was all-powerful. The government knew everything. The government knew everything that he was doing. His interrogators would find out every little detail that he revealed. And he would be punished for it.
More to the point:

He was convinced that -- I mean, I think in words he endorsed -- even if he won his case, he lost, because he was going back to the brig if he managed to prevail at trial. And essentially, if hypothetically one were to offer him a really long prison sentence versus -- with a guarantee that he wouldn't go back to the brig -- versus risking going back to the brig, the chance that he might go back to the brig, he would take the prison sentence for a very long period of time. I think he would take almost anything rather than go back to that brig.

So, after 43 months, with a prisoner so broken it is likely he didn't want to participate in any defense, for fear he would simply be returned to the brig, the most the government can do is indict him on the basis of "coded" phone calls and a document that was, at best, questionable. (But, true to the nature of the court system, the jury has spoken on that issue. One wonders, still, what the jury would have said had they known Mr. Padilla's present mental state, and the government's inability to link him to any conspiracy except on such evidence. On that issue, we'll never have an answer.)

Remember that Mr. Padillas was arrested in May, 2002 as a "material witness", then later declared an "enemy combatant." (where he was held without any criminal charges until 2005. It was late 2005 before he finally left the Navy brig in Charleston, South Carolina, , finally charged as a criminal, just as the Supreme Court was about to hear his case again.) Small wonder he would assume a trial would not mean his release from government capture. This, it seems to me, is no small consideration for a jury, trying to assess if, out of 300,000, 7 conversations with Jose Padilla, and 14 more where he was mentioned, were both "in code" and indicative of a crime that, as his lawyer described it today: "was actually an agreement to agree to do something in the future." If he entered into such an agreement, why didn't he confess it after 43 months and such fear of being confined again?

And what was that agreement? That:

...the three defendants -- Padilla, Hassoun and Jayyousi -- conspired to provide material support for terrorists seeking to create radical Islamic states abroad during the 1990s. The three men are also charged with conspiring to murder, kidnap and maim people abroad in jihad theaters such as Chechnya, Bosnia and Kosovo.
That burden, interestingly enough, they met.

The point about the phone calls is worth considering in full for a moment. As his lawyer described this evidence to Amy Goodman today:

[T]here were 300,000 intercepts over a period of approximately ten years. Of those, approximately 14,000 were considered to be, quote, “pertinent.” The government introduced about just under 130 conversations or parts of 130 conversations. Now, of that 300,000, Jose's voice is heard on seven. And there are an additional dozen or so conversations in which other people are talking about him. So in a massive electronic surveillance involving home phones being intercepted, cell phones being intercepted, fax machines being intercepted, bugs in people's homes, we have a grand total of twenty-one calls that have anything to do with Jose, out of a grand total of 300,000 interceptions. Your audience can do the math. The result is, you know, just barely a pin drop in this tidal wave of sound that was recorded.
And as for the code? According to the International Herald Tribune:

Most of the conversations were in Arabic and purportedly used code such as "tourism" and "football" for violent jihad or "zucchini" and "eggplant" instead of military weapons or ammunition.
According to the Washington Post:

The code, an FBI agent testified, included terms for jihad such as "tourism," "football" and "breathing fresh air." One man on the calls, who refers to Padilla as his "partner," appears to visit sites where Muslims are fighting and being attacked.
In light of the wiretapping program that is or isn't happening (it's a secret!), it's perfectly reasonable to conclude that anything you say to anyone can and will be used against you in a court of law, especially if you are discussing dinner or your favorite sport. Even more chilling is the fact that all three defendants claimed they were raising money for charitable relief. One thing more this case means is that, if you are raising money for the wrong religious purpose, you are a terrorist.

There are many, many scary things about this story.

So, was Mr. Padilla's confinement relevant to the case? Mr. Turley makes the point I would raise, simply looking at if from the outside, and draws the conclusion I would draw:

Turley said Padilla's attorneys will likely appeal his conviction, perhaps with claims of his impaired mental state resulting from his military detention as the centerpiece of that appeal. Regardless, he added, the lesson of the case is "the chilling thought that you can abuse a citizen for three years with no recourse available to that citizen."
As for Mr. Padilla's future, we are back to his lawyer:

ANDREW PATEL: You spoke with Angela yesterday, Dr. Hegarty. Let me just say that nothing in the interim has happened to make him better. It's our belief that he was not -- that this trial should not have gone forward. That matter will be addressed before the court of appeals.

AMY GOODMAN: And will the issue of torture be raised, being abused over the years and the extreme isolation?

ANDREW PATEL: His competence and the way he was treated in the brig are completely interwoven.

AMY GOODMAN: The sentence he faces?

ANDREW PATEL: Maximum sentence on count one is life.
However, as Mr. Patel also pointed out:

He will -- and this is just my -- shall we call it an educated guess or expectation -- will be sent to a federal maximum security facility. The irony of that is that he will have more social contact with other human beings in the federal maximum security facility than he did in the brig.
Life these days seems to be full of such unpleasant ironies.

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