Padilla Convicted on All Charges

A federal jury in Miami on Thursday convicted Jose Padilla on charges of aiding terrorist operations abroad.^[1] The verdict follows a long and controversial legal battle that pitted the Bush administration against civil liberties groups over how terrorism suspects are detained and should be prosecuted.^[2]

Padilla, a U.S. citizen arrested with fanfare in 2002 on charges that he planned to set off a radioactive "dirty bomb" in this country, was never tried on those charges.^[3] Instead, his case was combined with that of two other defendants accused of, among other things, conspiracy to murder, kidnap and maim people abroad and providing material support for terrorism.^[4]

Padilla and codefendants Adham Amin Hassoun, and Kifah Wael Jayyousi were convicted on all charges.^[5] They were accused of being part of a North American support cell that operated in U.S. cities and in Canada and was designed to send money, other assets and fighters to Islamic extremists overseas.^[6]

Padilla’s trial on terrorism charges, begun under extraordinarily high security in April, was the first significant test of a terrorist case moved out of the enemy combatant program and placed in the hands of a public jury.^[7] The government's success in the Padilla case could now encourage officials to bring other enemy combatants into federal courtrooms.^[8] "This clearly shows that in some cases, yes, the process can handle it….You have to look at it on a case-by-case basis. And these particular charges did work in a regular criminal trial,” Deputy Atty. Gen. Craig S. Morford asserted.^[9]

Key government evidence was a "mujahedin data form" that Padilla filled in July 2000 to join extremists "in preparation for violent jihad training in Afghanistan,” as well as a statement he made embracing Osama bin Laden's Al Qaeda network.^[10] Government testimony and evidence also showed that the three raised money and provided manpower to extremist groups abroad, especially in places such as Bosnia, Chechnya and Afghanistan where Muslims were engaged in conflicts.^[11]

Federal criminal defense attorney Douglas McNabb has discussed Padilla’s case extensively in this blog; these posts can be accessed here. Posts discussing the crime of providing material support to a terrorist organization can also be found here.

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^[1] Richard A. Serrano, Padilla guilty on all counts in terror case, Los Angeles Times, August 17, 2007, available at http://www.latimes.com/news/nationworld/nation/la-na-padilla17.1aug17,1,5567340.story?page=1&coll=la-headlines-nation (last visited August 27, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.

Closing Arguments Set in Padilla Case

Five years and three months after he was arrested and accused of involvement in an al-Qaida "dirty bomb" plot, Jose Padilla's case will finally be left up to the jury.^[1] Prosecutors were scheduled Monday to begin closing arguments in the trial of Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi on terrorism support charges that do not include the "dirty bomb" allegations.^[2]

Prosecutors want jurors to convict Padilla largely on a five-page "mujahedeen data form" he supposedly filled out in 2000 to attend an al-Qaida terrorist training camp in Afghanistan.^[3] The 36-year-old U.S. citizen was held as an enemy combatant for 3 1/2 years.^[4]

The CIA recovered the al-Qaida "mujahedeen data form" that is central in the case in Afghanistan after the U.S. invasion in late 2001.^[5] It susposedly contains seven of Padilla's fingerprints, one of his alleged Muslim alias names, his true birthday, notes the applicant's ability to speak English, Spanish and Arabic and has other identifying details.^[6]

But there is little other hard evidence linking Padilla, a Muslim convert, to al-Qaida or to the alleged North American terror support cell prosecutors say was operated by Hassoun, Jayyousi and others.^[7] Thousands of hours of FBI wiretap intercepts from 1993 to 2001 include numerous conversations of Hassoun and Jayyousi, but Padilla's voice is heard on only seven.^[8]

Padilla's defense called no witnesses on his behalf and introduced no evidence.^[9] His federal criminal defense lawyers adopted the risky strategy of suggesting to the jurors that prosecutors failed to prove he conspired with the others or provided material support to terrorists.^[10] FBI agents testified that the telephone conversations were often in code, with "football" or "tourism" meaning "jihad" and words such as "zucchini" and "eggplant" meaning weapons or ammunition.^[11] Yet Padilla was never heard using such code, testimony showed.^[12]

Federal criminal defense attorney Douglas McNabb has discussed Padilla’s case extensively in this blog; these posts can be accessed here.

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^[1] Curt Anderson, Closings Set in Padilla Terror Trial, Associated Press Newswire, August 13, available at LEXIS, News Library, Wire News Services File.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.

Padilla Trial To Be Decided on Soon

Jurors will soon be debating the guilt or innocence of Jose Padilla and two other men on trial for alleged support of terrorism.^[1] The jurors will be instructed that they may not consider whether the defendant’s actions were justified by Islamic law or intended to protect Muslims overseas from attacks, according to the federal judge who is hearing the case.^[2]

U.S. District Judge Marcia Cooke agreed to a request from prosecutors to instruct the jurors that each of the men can be convicted even if they "may have believed that the conduct was religiously, politically or morally required, or that ultimate good would result."^[3] A cornerstone of the defense during the trial was the idea that Islamic teaching provides for legitimate "defensive jihad," which differs from terrorism because it is meant to counter aggression against Muslims and does not threaten innocent people.^[4]

Divining the intentions of Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi will be critical for jurors, who are expected to begin deliberations after closing statements Monday and Tuesday.^[5] The three are charged with being part of a North American support cell that provided finances, supplies and recruits to al-Qaida and other Islamic extremist groups.^[6]

Hassoun’s federal criminal defense attorney Ken Swartz said his closing argument will emphasize that any money or supplies provided to overseas groups was meant for humanitarian assistance and will not focus on whether violent actions might have been justified.^[7] "It's all about relief, that is not giving aid for military purposes," Swartz said. "

Defense lawyers did win some points when Cooke agreed to instruct jurors that they must find the overseas killings were premeditated in order to convict the three on the murder conspiracy charge.^[8] The prosecution was never successful in linking any defendant directly to a specific violent act or victim, focusing instead on large groups subjected to attack such as the Russian Army and general conflicts in Chechnya, Bosnia, Lebanon, Somalia and elsewhere.^[9]

To find them guilty of the most serious conspiracy charge, jurors must conclude that each defendant "specifically intended" that people overseas would be murdered, kidnapped or maimed through their actions.^[10]

Padilla, Hassoun and Jayyousi are also charged with providing material support to terrorist groups and conspiracy to provide such support, each of which carries a maximum 15-year sentence. Padilla is also charged with providing himself as one of Hassoun's recruits to al-Qaida by allegedly filling out a form in 2000 to attend a training camp in Afghanistan.^[11]

Federal criminal defense attorney Douglas McNabb has previously discussed the charges against Padilla in his blog, here.

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^[1] AP Staff, Padilla case jurors barred from considering justification defense, Associated Press Newswire, August 9, 2007, available at LEXIS, News Library, Wire News Services.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.

Unbaised Jurors Hard to Come By in Padilla Trial

The memories of the 9/11 attacks are proving to be a problem for Jose Padilla as dozens of potential jurors are unable aside their feelings in the alleged al-Qaida terrorist support case.^[1] One potential juror asserted that he believed Padilla and his two co-defendants were already guilty because of: ``9/11.''^[2]

The “9/11” response is scattered rampantly throughout the throughout the more than 440 detailed questionnaires returned as of Thursday by potential jurors for the trial of Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi.^[3] “After the 9/11 acts and other acts around the world, it would be difficult to listen and not think they are guilty…I cannot tolerate terrorism. It's time to put a stop to it.'' a 23-year-old woman wrote in her questionnaire, other responses included ``I've seen on TV that the defendant Padilla wanted to detonate a dirty bomb,'' from a 44-year-old man; ``I haven't formed an opinion because I don't know all the facts…I try to keep an open mind, but it's difficult with so many Arabs tied to terrorist organizations,'' from a 27-year-old man.^[4] Other jurors said they link Islam and Arabs with the 2001 attacks, as well as with terrorism or global violence in general.^[5]

At a hearing, U.S. District Judge Marcia Cooke decided one by one whether to keep or remove nearly 100 others the two sides could not agree on. ``I think any right-minded person would have negative feelings about 9/11. It's whether they can put their feelings aside and decide this case,'' the judge said.^[6] Cooke also asserted that her test wasn't whether a juror had some feelings or opinions about terrorism or the Sept. 11 attacks, but whether they would be able to be fair and follow the law.^[7]

The defendants are accused of being part of a North American support cell that funneled recruits, money and supplies to Islamic extremist groups around the world. All three have pleaded not guilty and face potential life prison sentences, with trial scheduled to begin April 16.^[8] The Padilla case has no direct connection to the Sept. 11 attacks, and defense attorneys want all mentions of the date kept out of the trial so that jurors are not improperly influenced by their emotions.^[9]

We have previously discussed the crime of providing material support to terrorists, here.

We have also discussed Jose Padilla’s case exhaustively on this blog; these discussions can be accessed here.

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^[1] Curt Anderson, Potential Padilla Jurors Show Bias, AP (via The Guardian UK), March 30, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.

Jose Padilla—More Evidence Requested

The long and circuitous path of Jose Padilla’s prosecution has entered yet another interesting phase. US District Court Judge Marcia Cooke has ordered federal prosecutors to “turn over more detailed evidence to back up allegations that [Mr.] Padilla and two co-defendants conspired to kill, injure, or kidnap people overseas as part of a global Islamic terrorist network.”^[1]

Mr. Padilla’s lawyers are arguing that the federal indictment against him and the others “is ‘very light on facts.’”^[2] According to the attorney for Adham Amin Hassoun, one of the co-defendants, “The government has to tell us: What are these acts they conspired to commit?”^[3]

Judge Cooke has “ordered the government to flesh out its charges by providing defense lawyers with names of unindicted co-conspirators, broad descriptions of intended victims of alleged acts of violence and specifics about false statements [Mr.] Hassoun allegedly made about the meaning of phone calls intercepted by the government.”^[4] AUSA Brian Frazier countered the order by saying that substantial information has been turned over already, and by asking “What is terrorism but a random act of violence? It means anyone could be a victim at any time.”^[5] It seems to be an argument that Judge Cooke agreed with, because she denied the request “for the name of any actual or intended victims, saying those committing terrorist attacks might not know who they were setting out to harm.”^[6]

The government has until July 3 to turn over the information, and it is “not clear how forthcoming the government will be in response to the judge’s order”^[7]

In related news, one Mr. Padilla’s co-defendants, Mr. Hassoun, is seeking to suppress evidence seized by the FBI from his home, “saying the FBI ‘frightened and intimidated’ his wife before seizing a handgun and other key evidence such as documents in Arabic and videotapes.”^[8] The search occurred during Mr. Hassoun’s arrest “on an immigration violation on June 12, 2002,” and the FBI claims that his wife “freely consented in writing to the search.”^[9]

Generally, when a person is coerced into consenting to a search, that is seen as an invalid search, and the evidence is typically excluded.^[10]

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[1] Curt Anderson, Judge Orders Disclosure of Details in Padilla Terror Case, AP (via Miami Herald), Jun. 21, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Vanessa Blum, Judge Orders More Information for Terror Suspects’ Lawyers, South Florida Sun-Sentinel (via Contra Costa Times), Jun. 20, 2006.
[7] Id.
[8] Anderson, supra note 1.
[9] Id.
[10] Cf. United States v. Watson, 423 U.S. 411, 424 (1976).

Indefinite Detention of Terrorism Suspects—Canada

It would be nice if the United States were the only country that has a policy of indefinite detentions of people merely accused of terrorism, but the fact is, most countries are turning that way. The United Kingdom, for example, has flirted a number of times with the policy, and the courts there have been a little less agreeable to the idea than American Courts.^[1] Canada, too, has such a policy, implemented in Canada’s Immigration Act in 1978, and it is facing a challenge about whether such policies are legal.^[2]

Canada’s Supreme court has opened “hearings on [the] controversial security certificates, which permit secret court hearings, undisclosed evidence, and infinite incarceration.”^[3] The government claims that such detentions “on national security grounds are necessary to fight terrorism.”^[4] Challenging the policy are “five suspected terrorists, including Adil Charkaoui, Mohamed Harkat and Hasan Almrei, Muslims accused of having ties to Al-Qaeda.”^[5] Some signs suggest that the Supreme Court is not quite receptive to the government’s basic argument, which is that “[p]rotecting security…is a condition sine qua non of the very existence of the rule of law in [a] democratic system of government.”^[6] Security, said Justice Louis LeBel, cannot overshadow all rights, because “[i]f we don’t have the rest we’ll be living in North Korea.”^[7] Other Justices seemed “receptive to suggestions that Canada could adopt a system that exists in the United Kingdom, where independent, security-cleared lawyers are appointed as ‘special advocates’ to attend secret hearings and challenged governmental lawyers.”^[8] They also seemed concerned that the defendant’s lawyers may not have proposed a strong alternative, “short of simply releasing their clients into the community. ‘What does the world do with someone who is truly dangerous wherever they go?’ asked Justice Beverley McLachlin. ‘Is freedom really an option?’”^[9]

One option would be what Jose Padilla argued while he was detained as an enemy combatant in the United States: just bring them to trial. Of course, the government eventually did, and the arguments against Mr. Padilla are nothing remotely related to what he was accused of doing. That may be the real concern that governments have: if they bring these individuals to trial, they risk losing, either because there isn’t any evidence, or because they have mistreated the individual to a degree that any evidence elicited from the defendant is inadmissible.

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[1] See Vikram Dobb, et al., Terror Law an Affront to Justice: Judge, Guardian (UK), Apr. 13, 2006.
[2] Indefinite Jailing of Terror Suspects Necessary, Canadian Court Told AFP (via Yahoo!), Jun. 14, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Janice Tibbetts, Security Laws Before Supreme Court, CanWest News (via Canada.com), Jun. 14, 2006.
[9] Id.

Terrorism Prosecution—Federal Strategy

Zacarias Moussaoui did not receive the death penalty in part because jurors “concluded he had little to do with Sept. 11.”^[1] Likewise, nearly 5 years after 9/11, federal prosecutors have secured convictions in only a handful of cases, and most of those are fairly low-level individuals. For example, the recent conviction of Hamid Hayat cannot seriously be said to have substantially wiped out a global threat. And some of the federal government’s higher-profile cases have tended to fall apart. For example, a Detroit “sleeper cell” conviction in 2003 was overturned because prosecutors withheld evidence from the defense, Jose Padilla—who was detained in a brig ostensibly because he was so dangerous—has been charged merely with conspiracy to commit terrorist attacks overseas, and Ali al-Tamimi’s case—in which he was convicted for soliciting treason—has gone back to District Court because there may have been illegal NSA wiretaps on him.

That a fairly obvious hanger-on like Zacarias Moussaoui would be prosecuted and sentenced to life in prison while “two presumed key planners of the Al Qaeda plot, Khalid Shaikh Mohammed and Ramzi Binalshibh,” have yet to be charged with anything, seems to be a fairly large contradiction.^[2] Government officials say, however, that Mr. Mohammed and Mr. Binalshibh have been held in secret for three years because “gathering intelligence from suspected terrorists is more important than publicly punishing them.”^[3] Charging an individual with a crime “would entitle him to a lawyer,” which is why Mr. Padilla was labeled an enemy combatant; “a lawyer undoubtedly would tell him not to talk to government investigators.”^[4]

Mr. Mohammed, for his part, has apparently told investigators about the 9/11 plot “in great detail. … 10 years ago he conceived of the idea of using hijacked airplanes as missile-like weapons, and eventually persuaded Al Qaeda leader Osama bin Laden to fund the plot.”^[5] The original plan called for 10 airplanes, five on each coast, but Osama bin Laden “thought this was too complicated.”^[6] Mr. Binalshibh was chosen to coordinate the operation, and to “serve as [the hijackers’] paymaster.”^[7] Both men were captured in Pakistan, and a statement from Mr. Mohammed was introduced against Mr. Moussaoui during the latter man’s trial, calling him unreliable.^[8]

Because current and former intelligence officials “have said that the CIA has used aggressive interrogation techniques—including ‘waterboarding,’ which makes a suspect feel that he is drowning—on captured Al Qaeda leaders” it will be nearly impossible to try Mssrs. Mohammed and Binalshibh in civilian courts.^[9]

This is because evidence or confessions obtained from torture cannot be used to sustain a conviction. The US Supreme Court “has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. … Faced with statements extracted by beatings and other forms of physical and psychological torture, the Court [has] held that confessions procured by means "revolting to the sense of justice" could not be used to secure a conviction. … On numerous subsequent occasions the Court has set aside convictions secured through the admission of an improperly obtained confession.”^[10]

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[1] David G. Savage, No Trials for Key Players, L.A. Times, May 4, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Miller v. Fenton, 474 U.S. 104, 109 (1985) (internal citation omitted).

Undisclosed Locations—Syed Haris Ahmed

Syed Haris Ahmed, a 21-year-old Georgia Tech student who is a naturalized citizen, has the dubious distinction of being one of the few individuals besides Vice President Cheney whose whereabouts are characterized as “undisclosed.”^[1] According to the government, Mr. Ahmed “has been detained in facilities regularly used by the United States Marshals Service to detain pre-trial federal defendants. From the day after his arrest, his location has been known to his lawyer and his family, who have been able to visit with him. The location is not being made public because of the nature of the case.”^[2] This is interesting. Over the past couple of years, only a handful of individuals have been held in “undisclosed locations,” usually in reference to a person accused of terrorism abroad.^[3] Occasionally, however, someone charged with far less sensitive crimes might be held at an undisclosed location. For example, the BTK serial killer—Dennis L. Rader—was, at the time of his arrest, “taken into custody without a fuss … and was … held at an ‘undisclosed location.’”^[4]

Perhaps, then, Mr. Ahmed’s detention at an undisclosed location might not suggest a disturbing pattern of secrecy and maybe it doesn’t signal yet another erosion of American’s civil liberties. On the other hand, one should not be willing to accept the notion that the government can simply remove a person from public view, with only a handful of people allowed to know details of the case. This is especially true when the government’s rationale is logically inconsistent.

According to US Attorney David E. Nahmias, Mr. Ahmed’s case is “the first international terrorism charge filed in Georgia,” and he is accused of providing material support for terrorists under 18 U.S.C. § 2339A(a), apparently with the plan that others would commit acts of terrorism transcending national boundaries under 18 U.S.C. § 2332b, and conspiring to kill, maim, or injure persons or damage property in a foreign country under 18 U.S.C. § 956.^[5] No other details have been offered.

The term “material support,” as defined in the statute, is fairly broad and includes providing property, currency, lodging, training, expert advice, safehouses, false identification documents, communications equipment, weapons, lethal substances, personnel, and transportation; it does not include providing medicine or religious materials.^[6]

The charges against, and subsequent detention of Mr. Ahmed, are very interesting because US Attorney Nahmias went through great lengths to assure people “that at no time [was the government] aware of immediate danger to the Atlanta area or the United States,”^[7] which strongly suggests that the alleged acts were to be carried out in other countries. In that respect, they are similar to the charges pending against Jose Padilla, who was detained as an enemy combatant in a military brig for years before finally being charged with crimes that bear no relation to the alleged reasons for detaining him in the brig. Mr. Padilla is not currently being held at an undisclosed location. They are also similar to the charges pending against Wesam al Delaema, whose extradition from the Netherlands was almost stopped until the US government assured the Netherlands that Mr. al Delaema would not be sent to Guantanamo. The detention of Mr. Ahmed at an undisclosed location may cause problems for extradition proceedings in other countries if foreign judges determine that a number of layers of assurances are required before they hand over suspects, on the grounds that there may be fears that the individual will be taken to an undisclosed location.

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[1] Dawsonville Man Indicted For Alleged Ties to Terrorism, Associated Press (via AccessNorthGa.com), Apr. 21, 2006.
[2] US Attorney’s Office, Atlanta Man Indicted for Material Support of Terrorism, US Newswire (via Yahoo!), Apr. 20, 2006.
[3] See, e.g., Paul Haven, Pakistan Arrests al-Qaida Suspect Wanted in 1998 Embassy Bombings, Associated Press, Jul. 30, 2004 (Ahmed Khalfan Ghailani, arrested in Pakistan, was held at an undisclosed location in Pakistan); Ahmed Al-Haj, Two USS Cole Defendants Sentenced to Die, Pittsburgh Tribune Review, Sep. 30, 2004 (Yemen court orders execution of Abd al-Rahim al-Nashiri, who was “one of a number of senior al-Qaida figures who have been held in U.S. custody at undisclosed locations for interrogations since their captures.”); Susan Milligan, et al., Hussein Photographs Spark Military Inquiry, Boston Globe, May 21, 2005 (Saddam Hussein currently being held at an undisclosed location).
[4] Monica Davey, After Years of Taunts and Clues, Arrest is Made in Kansas, N.Y. Times, Feb. 27, 2005.
[5] USAO, supra note 2.
[6] 18 U.S.C. § 2339A(b)(1).
[7] USAO, supra note 2.