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Beyond Padilla terror case, huge legal issues

His detention and interrogation in the US raises basic constitutional questions.

By Staff writer of The Christian Science Monitor / August 15, 2007


Jose Padilla is known worldwide as the man who plotted with Al Qaeda to detonate a radiological "dirty bomb" in a major US city.

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He allegedly presented his plan to top Al Qaeda leaders Abu Zubaydah and 9/11 mastermind Khalid Sheikh Mohammed. But according to US intelligence reports, both men doubted Mr. Padilla could pull off the attack.

For his part, Padilla told military interrogators that he never intended to carry it out. The former Taco Bell employee made the proposal in early 2002 as a way to justify fleeing Pakistan to avoid being sent to combat US forces in Afghanistan, says a government account.

So is Padilla – whose terror conspiracy case could go to a Miami jury Wednesday – a committed Al Qaeda operative, or merely a big-talking mujahideen wannabe who ultimately wanted to go home?

The answer to that question is important. Padilla isn't a run-of-the-mill enemy combatant apprehended on a foreign battlefield. He is a United States citizen, arrested on US soil, who was held in a military prison for 43 months and subjected to harsh interrogation techniques until he confessed.

Padilla was given due process to file a lawsuit challenging his treatment by the government. But as an enemy combatant, he was stripped of every other constitutional protection and right, including the right to know that a constitutional challenge had been filed on his behalf.

Many legal scholars and intelligence experts say Padilla's ordeal highlights the danger of a government that obtains information through secret, coercive means and then selectively releases some of it to justify its actions.

"This is the hallmark of an authoritarian state," says Larry Johnson, a former State Department counterterrorism official and former analyst at the Central Intelligence Agency.

"At many of the points at which the government said 'dirty bomb,' there was no opportunity to respond for the reason that Mr. Padilla was in solitary confinement and no lawyer had been able to talk to him about the charges," says Diane Amann, visiting law professor at the University of California, Berkeley.

The release of some details about Padilla and the dirty-bomb plot was justified by administration officials as supporting the public interest. But some information about Padilla and his interrogation must remain secret, officials say, to prevent revealing US intelligence sources and methods to Al Qaeda.

In the court of public opinion, Padilla stands convicted. His name is almost synonymous with dirty bomber. Yet, when it came time to put Padilla on trial, the government's case in Miami included no mention of a dirty bomb.

In his trial, Padilla is accused of providing material support to a terror group by attending an Al Qaeda training camp in Afghanistan. Federal prosecutors are using a broad conspiracy charge to allege that Padilla was a willing participant in a global terror campaign to wage violent jihad by murdering, kidnapping, and maiming people. Padilla denies it.

Although they seek a life sentence, prosecutors introduced no evidence of personal involvement by Padilla in planning or carrying out any specific terrorist plot or violent act.

There is a reason the government's case is so thin, legal analysts say.

If prosecutors brought the dirty-bomb plot or other alleged illegal actions by Padilla into the Miami case, it would open the door for courtroom scrutiny of the government's use of coercive interrogation techniques against Al Qaeda suspects, including Padilla. And that would have taken jurors deep into the shadowy underside of America's war on terror – a journey in Padilla's case that wends its way from his cell on an isolated wing of the US Naval Consolidated Brig in Charleston, S.C., through covert CIA interrogation sites overseas to an alleged torture chamber in Morocco.

This is a part of the war on terror the Bush administration would rather keep quiet. But details are emerging.

What they reveal is the aggressive – and at times, ruthless – pursuit of intelligence information, and the selective public release of some of that intelligence when it serves the administration's goals.

Plot hit airwaves in 2002

The Padilla story burst into the national consciousness in June 2002 when then-Attorney General John Ashcroft interrupted a trip to Moscow to make a dramatic televised announcement.

Do presidents have the right to hold citizens indefinitely?

When Jose Padilla's case came before the US Supreme Court in 2004, the issue was whether the president had constitutional authority to hold without charge an American citizen arrested on US soil. The case was tossed out on a technicality. But on the same day that the Padilla outcome was announced, the court released its decision in a similar case of a US citizen captured on an Afghanistan battlefield.

In Hamdi v. Rumsfeld, a four-justice plurality ruled that the president could hold American citizens as enemy combatants in the US provided they were given a fair hearing to challenge the government's actions.

Justice Antonin Scalia believed this approach was deeply flawed. Although he voted with the majority to dismiss Mr. Padilla's case, Justice Scalia wrote a 27-page dissent in the Hamdi case.

If a citizen takes up arms against the US in a time of war, he or she should be tried for treason, the justice wrote. If fast-developing events prevent such a prosecution, Congress has the power to suspend habeas corpus and other protections of the Constitution temporarily. But the commander in chief's authority alone is not enough to accomplish this, Scalia wrote.

The Founding Fathers distrusted military power permanently at the president's disposal, Scalia said. The Founders wrote a series of safeguards into the Constitution, dividing the power over the military between the executive and legislative branches.

"A view of the Constitution that gives the executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions," Scalia wrote.

Although Scalia's view has not carried the day at the high court, it has sparked intense speculation about what might happen should the justices once again consider Padilla's case. Many high court analysts believe five or more justices would be sympathetic to arguments raised by Padilla's lawyers. But no similar case has arrived at the court.

Should the court address the issue in a definitive way, the answer would produce a constitutional landmark.