Without a plot, is Padilla guilty?

A surprising question is emerging as a central issue in the high stakes terror trial of Jose Padilla and two other men.

The three are facing charges that they plotted to spread violent jihad through a murderous campaign around the world. But federal prosecutors say it is unnecessary to link the terror suspects to an actual plan of terror.

Instead, government lawyers argue that a series of shady phone calls and a few documents are enough to establish the existence of a terror conspiracy and send all three defendants to prison potentially for the rest of their lives.

Thursday, defense lawyers begin presenting their case to the 12-member jury in federal court here. Their efforts come after US District Judge Marcia Cooke declined defense motions on Tuesday to dismiss all charges in the case, raised on grounds that the government had failed to present enough evidence.

Judge Cooke said there were legitimate issues of fact for the jury to decide.

The defense responds

Lawyers for Mr. Padilla and codefendants Adham Hassoun and Kifah Jayyousi are expected to continue to pound away at what they say is an extraordinary lack of evidence supporting the government's terror conspiracy charges.

Each of the three counts in the indictment allege a conspiracy to "murder, kidnap, and maim persons in a foreign country."

But after an eight-week presentation of evidence by the government, prosecutors have not identified a single individual as a potential target for murder, kidnapping, or maiming, nor have they identified any specific plot to accomplish someone's murder, kidnapping, or maiming.

"There is simply no record evidence to show that Mr. Padilla willfully joined in a plan to commit murder," says Padilla's lawyer Michael Caruso.

Lawyers for the two other defendants voice similar complaints that the government has presented no evidence linking their clients to a specific murder conspiracy.

"It is my client's mind that is on trial," says Jeanne Baker, a lawyer for Mr. Hassoun. "It doesn't matter [if] anything even happened."

Assistant US Attorney Brian Frazier says the government has no obligation to identify specific victims and specific plots. "The agreement is what is important," he says.

Case could expand prosecutors' scope

The issue is significant in the Bush administration's war on terror because if upheld in the courts the government's approach would permit proactive prosecutions of individuals long before they take any affirmative step toward carrying out a specific act of terror against a particular target.

Individuals who are perceived to be sympathetic to Osama bin Laden, Al Qaeda, or a version of Islam viewed as too militant could be prosecuted if the government believes they are on the road to carrying out "violent jihad."

Such a government posture would criminalize a portion of Muslim political discourse in the US and discourage legitimate humanitarian fundraising among American Muslims.

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