What's a fair sentence for Jose Padilla?

The Al Qaeda recruit asks the court to weigh his torture allegations. The US calls conditions in the brig 'irrelevant.'

By , Staff writer of The Christian Science Monitor

This week, convicted Al Qaeda recruit Jose Padilla will stand before a federal judge in Miami to receive a punishment that fits his crime.

Such sentencing hearings are usually routine, but Mr. Padilla's sentencing promises to be anything but routine.

Padilla's lawyers are urging leniency, arguing that despite the jury's quick verdicts in his terror conspiracy trial last summer, the evidence against their client remains weak.

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But Padilla isn't the only party with a stake in the outcome of Wednesday's scheduled hearing. The Bush administration is pushing hard for the harshest sentence available – life without the possibility of parole. It is a sentence that would probably be served in the isolation wing of the federal "supermax" prison in Florence, Colo.

To determine the most appropriate sentence for Padilla, US District Judge Marcia Cooke will review every relevant event in Padilla's life – including, most important, his conviction in August of conspiring to provide material support to Al Qaeda by attending a training camp in Afghanistan.

She will review Padilla's troubled childhood, his involvement as a teen in a gang-related killing in Chicago, and his jail term in Fort Lauderdale, Fla., on a gun charge. She will also consider his conversion to Islam, the breakup of his marriage, and his subsequent desire to travel overseas to learn Arabic and further his religious studies with scholars of the Salafist sect of Islam.

But there is one major area of Padilla's life that federal prosecutors say Judge Cooke must avoid. For three years and eight months, Padilla, a US citizen, was held without charge in a military brig as an enemy combatant on the orders of President Bush. He was housed in an isolation cell and subject to harsh interrogation techniques that Padilla and his lawyers characterize as torture. The experience, from 2002 to 2006, has left Padilla with severe mental disabilities from which he may never recover, according to mental-health experts who have examined him.

"Mr. Padilla's assertion that he was tortured is, by any definition, unassailable," writes Padilla's lawyer, Michael Caruso, acting federal public defender, in his sentencing brief to Cooke. "There can be no dispute ... that the government intentionally inflicted psychological pain and suffering upon Mr. Padilla."

Federal prosecutors dismiss the issue as "the same unsubstantiated allegations made by Padilla's lawyers earlier in the case."

"This court has already held that the circumstances of Padilla's brig confinement are irrelevant to these criminal charges against him," writes assistant US Attorney John Shipley in his sentencing brief to Cooke. "For the court to change direction now, and allow the sentencing process to devolve into a hearing on the conditions of Padilla's military confinement, which would necessarily involve why he was designated an enemy combatant in the first place, would be improper."

Padilla's treatment and detention by the military as an enemy combatant involve classified information that cannot be disclosed in open court, according to government officials.

Legal analysts say it would be appropriate for Cooke to award Padilla credit for the more than five years he has been held in government custody, both at the brig and in Miami in pretrial detention.

In addition, some analysts say Cooke should go further and try to quantify the amount of pain and suffering – and the extent of abuse – caused by the government during his military detention. They say she should compensate him through a reduced sentence.

"There is no precise way to do that," says Frank Bowman, a sentencing expert at the University of Missouri School of Law and a former federal prosecutor in Miami.

"I don't think the government ought to be able to treat people in this way and then, when it comes time for punishment, get all self-righteous and act as if all that happened here was an ordinary criminal trial with ordinary criminal consequences," Professor Bowman says. "It isn't ordinary. What happened to this guy was extraordinary."

He adds, "It would be unfortunate for the judge to pretend it didn't happen and that it doesn't matter."

Some analysts praise the government for seeking a maximum sentence. "There are plenty of cases where defendants deserve leniency, mercy, the benefit of the doubt. This is not that case," says Guy Lewis, a former US attorney in Miami who is now a corporate defense lawyer.

"This defendant has been convicted of some of the most serious crimes that are on the books and, for those crimes, he deserves a commensurate serious sentence," Mr. Lewis says. "Does that mean the judge will max him out and give him life?" he asks. "Probably not."

Other analysts say the government has produced meager evidence of criminal culpability by Padilla despite government accusations – still unproven – that Padilla once plotted to detonate a radiological dirty bomb in a major US city. That charge was never included in the Miami criminal case. Nor was there any evidence presented in the Miami trial that Padilla ever participated in a plot to kill or harm someone.

Instead, prosecutors relied on an expansive interpretation of conspiracy and material support laws to permit the jury to find guilt in an undefined, open-ended plot to help unidentified Islamic radicals overseas.

"The best you can say for the government is that they succeeded in convicting Padilla on some penny ante crimes," says Eric Freedman, a constitutional law professor at Hofstra Law School in Hempstead, N.Y.

Professor Freedman says it is "hypocritical" for the government to attempt to obtain the same substantial sentence of life in prison that prosecutors might have obtained had they proved Padilla plotted to detonate a bomb in the US or personally undertake other violent action.

He says the prosecutors' request for a sentence of life without parole is part of a continuing attempt by the government to try to justify its earlier harsh treatment of Padilla.

"Padilla stands before the court as a trained Al Qaeda killer," prosecutor Shipley writes in the government's sentencing brief. "Padilla's contribution to the charged conspiracies was unique, and uniquely fanatical and dangerous."

In Padilla's brief to the judge, defense lawyers appear to be discussing a different case. "The government has offered no evidence of any sinister motive on Mr. Padilla's part," writes Mr. Caruso. "There is no evidence that Mr. Padilla ever sought to harm an innocent person."

Regardless of the sentence handed down by Cooke, the controversy surrounding Padilla is unlikely to die down anytime soon. His lawyers are expected to appeal his conviction, and a civil lawsuit has been filed in federal court in South Carolina against former Defense Secretary Donald Rumsfeld and other US officials over Padilla's alleged torture while in military custody.

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