Legal landmines emerge in 'dirty bomber' case
The Jose Padilla trial is a test: Can US avoid legal tangles of its 'war on terror' tactics?
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Now, his case is before US District Judge Marcia Cooke in Miami, and Padilla's appointed lawyers are working to defend their client in part by trying to put the government itself on trial.Skip to next paragraph
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"The government's interrogation strategies and isolation techniques with regard to Mr. Padilla during his incarceration at the brig are at the outer limits of civilized propriety," writes Michael Caruso, acting federal public defender, in a recent brief.
"The government concedes that Mr. Padilla's constitutional rights were knowingly and intentionally violated during his incarceration at the brig in order for various agencies to collect evidence against him," he writes. "It is also beyond dispute that the government used extreme interrogation and isolation strategies in this effort."
Federal prosecutors have responded by arguing that allegations concerning Padilla's treatment while in military custody are irrelevant to the narrow set of charges filed in the Miami federal court case.
"Padilla's position is a thinly veiled attempt to conduct a fishing expedition," writes Assistant US Attorney Russell Killinger in a brief.
The Miami charges are based on evidence obtained through investigative efforts independent of Padilla's military interrogation, and presumably in full compliance with constitutional and other safeguards of the criminal-justice system. This explains why the Miami indictment makes no mention of dirty bombs or any of the other more sensational allegations uncovered through Padilla's military interrogation.
But that may not be enough to insulate the government from scrutiny and possible sanctions. The judicial test, according to Supreme Court precedent, is whether the government's conduct is so outrageous that it violates fundamental fairness and is "shocking to the universal sense of justice."
"It is a well-established principle of the criminal law that conduct which 'shocks the conscience' can be sanctioned by dismissal of the charges," says Joseph Margulies, a professor at Northwestern University School of Law and author of "Guantánamo and the Abuse of Presidential Power." But such rulings are rare, he says.
Legal analysts say it is significantly more difficult to persuade a judge to authorize an inquiry or dismiss charges when there is no direct connection between the alleged abuse and the evidence being offered at trial. For example, if federal prosecutors try to introduce evidence from the military interrogation to beef up their indictment in Miami, that action would clearly open the door for extensive scrutiny of Padilla's treatment by the military, they say.
In addition, judicial approval of the use of evidence from Padilla's military interrogation for use by prosecutors in the criminal trial would raise a red flag, says Cato's Lynch. "Then we would have a precedent that says that military interrogators can do things to Americans that law-enforcement and FBI agents cannot," he says.
The more probable course, Lynch says, is that the judge in Miami will avoid the military-detention issue. "So long as it proceeds as a fairly ordinary criminal case, I think the judge is going to keep the focus on the criminal charges and is not going to let issues involving military custody seep in."