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.
Mr. Frazier rejects defense complaints that the government's standard is vague. "The narrative is fairly clear that Padilla was recruited to go overseas to participate in jihad," he says. "This is not the Boy Scouts; it is a terrorist organization."
Prosecutors say that Padilla and the two other men were part of a secret Al Qaeda support cell set up to facilitate a worldwide holy war.
To prove their case, they presented scores of secretly recorded telephone conversations in which the three men allegedly use coded language while discussing efforts to send money, equipment, and individuals to various Muslim hot spots in the late 1990s.
The areas included regions where Muslim civilians were facing massacres and other attacks, such as Kosovo, Bosnia, and Chechnya. Defense lawyers say their clients were seeking to protect and help Muslim victims, rather than wage a terror-driven jihad.
Prosecutors say the cell members spoke in code during telephone calls to throw US and other intelligence agents off their trail. In one instance, agents overheard a discussion of the purchase of $3,500 worth of "zucchini" in Lebanon. A government expert testified that zucchini was a code word for a type of munition.
In another transcript, agents recorded conversations discussing "football" in Somalia, believed to be a euphemism for Muslim guerrilla operations.
Evidence of ties to Al Qaeda
The case against Padilla centers on allegations that he was a willing recruit who attended an Al Qaeda training camp in Afghanistan during the fall of 2000. The government produced a "mujahideen data form" allegedly completed by Padilla prior to attending the camp. An expert found Padilla's fingerprints on the form.
Defense lawyers deny that their client attended the training camp. They say the form does not prove Padilla's presence at the camp and suggest that the fingerprints might have been planted on the document later by handing it to Padilla while he was being interrogated by military officials in the US.
Padilla gained worldwide infamy in 2002 when he was taken into military custody as an enemy combatant suspected of plotting to detonate a radiological "dirty bomb" in the US. That allegation is not part of the current federal court case because the interrogation methods used to unearth the allegation are known to produce unreliable information and violated key protections of the criminal justice system.
Does terror training equal a conspiracy?
Instead of attempting to prove Padilla's participation in a particular plot, prosecutors say that his alleged presence at the Al Qaeda training camp is ample evidence of involvement in a murder conspiracy. "We know what happens there; people are trained to kill," Frazier says.
Defense lawyers quote the testimony of a cooperating government witness who said that not everyone who attended the Al Qaeda training camp emerged a terrorist.
Some attended the camp in the belief it was a religious obligation, said Yahya Goba, who trained at the camp and is now cooperating with the government. Mr. Goba testified that there was no binding requirement that trainees become terrorists.