Life in prison for Padilla?
In sentencing, the judge must find that the convicted Al Qaeda recruit aimed to influence a government. But his trial has scant record of motive.
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Under federal sentencing guidelines, the three men could receive much shorter prison terms – perhaps 10 years or less. But prosecutors are asking US District Judge Marcia Cooke to authorize a "terrorism enhancement" to their sentences.
But first Judge Cooke must answer this question: Were the three men's crimes calculated to coerce or influence a government?
If the answer is yes, the terrorism enhancement could apply, under the sentencing guidelines. If the answer is no, or if the judge is unable to answer the question, the terrorism enhancement is off the table. Cooke's ruling on the issue could come as early as Tuesday as the Padilla sentencing hearing extends into its second week.
The government influence question is designed to act as a fire wall within the sentencing guidelines to separate ordinary criminal activity that does not warrant substantial extra punishment from terrorism crimes, which do. What makes the question potentially difficult for the judge to answer is that prosecutors fought successfully during the trial to exclude any discussion or consideration of the defendants' motives.
"What concerns me is we went to great pains to not have motive in the trial," Cooke said in a hearing last week. "Now I am asked to make a determination about motive when the jury was told that was an inappropriate area of inquiry."
The case is being closely watched in part because of the controversial circumstances of Padilla's detention in US custody. Padilla, an American citizen, was held without charge for 3-1/2 years after being designated an enemy combatant by President Bush. He was subject to harsh interrogation techniques designed to break him psychologically and force him to reveal anything he might know about Al Qaeda.
When legal challenges to Padilla's military detention began to turn against the Bush administration, Padilla was moved to the criminal justice system in Miami and placed on trial for allegedly volunteering as an Al Qaeda recruit.
He was convicted in August.
Legal analysts say a life sentence is important for the Bush administration to justify its earlier harsh treatment of Padilla.
But it remains unclear whether Cooke, a 2003 Bush judicial nominee, will hand down life sentences for Padilla, Hassoun, and Jayyousi.
To authorize the requested terrorism enhancements under the federal sentencing guidelines, Cooke must find that the criminal activities of Padilla and his codefendants were "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government."
Padilla's lawyer, acting federal public defender Michael Caruso, says this requires the judge to determine that each defendant was personally motivated to participate in his crime by a desire to influence or retaliate against a government. "The government has to prove the motivation of Mr. Padilla," Mr. Caruso told the judge. "There is absolutely no evidence of Mr. Padilla's motivation," he added.