Some of the evidence that has resulted in American citizen Jose Padilla being detained as an enemy combatant for years has come forth – and it’s just a paltry seven phone calls.
Tens of thousands of conversations were recorded. Some 230 phone calls form the core of the government?s case, including 21 that make reference to Mr. Padilla, prosecutors said. But 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.
He’s gone from the “dirty bomber” to a criminal defendant in a nebulous conspiracy. And if he was actually a “dirty bomber”, the way our government botched things actually works against their case:
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 ? and, further, the government is disinclined to expose sensitive intelligence or invite further scrutiny of secret jails overseas.
The Military Commissions Act of 2006, however, legalizes the treatment Padilla was subjected to, and in fact gives the Bush Administration an “out” should the criminal trial not proceed as desired.
Further, Ms. Pearlstein noted, the government has reserved the option, should the prosecution fail, of returning Mr. Padilla to the military brig. This, she said, ?casts a shadow? over the current prosecution.
Of course, those of us opposed to the use of torture have repeatedly pointed out that that torture doesn’t elicit intel – it generates confessions, and Padilla’s case (and others related to it) seem to support that claim.
The Bush administration?s military case against Binyam Mohamed, 28, the Ethiopian detainee at Guant?namo, put the current proceedings in a different light, too.
In December 2005, Mr. Mohamed was referred to the military commission in Guant?namo on accusations that he conspired with Mr. Padilla on the dirty bomb plot. It was little noticed at the time.
But accusations against Mr. Padilla that are nowhere to be found in the indictment against him filled the pages of Mr. Mohamed?s charging sheet, with Mr. Padilla repeatedly identified by name. The sheet referred to the two men meeting in Pakistan after Sept. 11, 2001, studying how to build an improvised dirty bomb, discussing the feasibility of a dirty bomb attack with Al Qaeda officials and agreeing to undertake the mission to blow up buildings.
Mr. Mohamed?s lawyer, Clive Stafford Smith, said that these charges were based on a forced confession by Mr. Mohamed, who, he said, was tortured overseas into admitting to a story that was fed to him. ?Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khaled Sheikh Mohammed,? Mr. Stafford Smith said, adding that his client ?has no conscience knowledge that he ever met? Mr. Padilla.
This shows why real criminal trials are important – and why the Military Commissions Act of 2006 is fundamentally flawed, if the goal is justice.
?Federal court rules are restrictive,? Professor Chesney of Wake Forest University School of Law said. ?The very essence of why they?re trying to have that separate military system was to create rules to use information that is deemed by the intelligence community to be trustworthy but wouldn?t make it under the federal rules of evidence.?
David Cole, a professor of law at Georgetown University and author of books on terrorism and civil liberties, sees the difference between the two systems more critically: ?What this says clearly is that they feel that they can get away with using tainted evidence in the military commission system that they can?t use in the criminal court system.?
Back to the calls Padilla was actually taped in:
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.
This justifies years in detainment without access to a lawyer, or the ability to challenge your detainment in a court of law? Look, Padilla may well be guilty of all the wild accusations leveled against him, but there is no court-permissible (ie, reliable, accurate, and true) evidence against him. I don’t know what this is, but it sure as hell isn’t “innocent until proven guilty.”