Prosecutors in Miami are asking a federal judge to endorse a broad reading of a murder conspiracy statute and material support law to send convicted Al Qaeda recruit Jose Padilla to prison for the rest of his life.
If US District Judge Marcia Cooke agrees with the US Justice Department, the severe sentence won't be for any violent act carried out or planned by Mr. Padilla. Instead, he will be punished for what prosecutors say were his dangerous intentions – intentions to conduct unspecified future terrorist operations.
The case raises a potential landmark legal question.
Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?
On Tuesday, Judge Cooke will answer that question when she announces Padilla's sentence.
The judge has already decided that Padilla and his two co-defendants are eligible for terms of 30 years to life in prison under a special "terrorism enhancement" within the federal sentencing guidelines. But the judge has the discretion to hand down more lenient sentences.
In a hearing on Friday, Padilla's lawyer, Acting Federal Public Defender Michael Caruso, argued that there is no comparison between his client's conduct and the conduct of convicted terrorists currently serving sentences of life in prison.
•Ramzi Yousef planned the 1993 World Trade Center bombing that killed six and injured at least 1,000 and was the mastermind of a foiled 1995 plot to assassinate the pope and simultaneously bomb 11 airliners carrying 4,000 passengers.
In contrast, according to federal prosecutors, Padilla attended an Al Qaeda training camp in Afghanistan.
Prosecutors presented no evidence of Padilla's involvement in (or knowledge of) any plan to murder, kidnap, or maim anyone. Instead, prosecutors told the jury that by attending the training camp in Afghanistan, Padilla had demonstrated his intent to engage in violent jihad.
The law doesn't require proof of involvement in a specific act of violence, prosecutors say. Padilla and his two codefendants, Adham Hassoun and Kifah Jayyousi, were convicted of supporting violent jihad overseas by providing money, equipment, and recruits to a broad conspiracy among Muslim radicals. Padilla's role in the conspiracy was to provide himself as a recruit, according to prosecutors.
"Jose Padilla is properly characterized as a trained Al Qaeda killer," assistant US Attorney Brian Frazier told Judge Cook. "[Life in prison] is the only appropriate punishment for Jose Padilla," he said.
But how is a judge to assess the seriousness of Padilla's conduct without evidence of Al Qaeda's future plans for him (if any), or evidence of Padilla's willingness (or refusal) to carry out a specific terrorist attack? Was he recruited to be a cook or an assassin, a carpenter or a suicide bomber?
No evidence of this type was presented at the trial.
Mr. Caruso said that rather than life in prison under a broadly defined murder conspiracy charge, his client should be sentenced for the crime of attending an Al Qaeda training camp. That crime, under a statute passed by Congress in 2004, carries a 10-year-maximum prison sentence.
Federal prosecutors have succeeded in obtaining significant prison sentences for individuals convicted of providing material support to a terrorist group. But in each of those cases the criminal conduct included evidence of actions beyond mere attendance at a training camp.
Hamid Hayat of Lodi, Calif., was sentenced to 24 years in prison on charges that he attended a terrorist training camp. But his case also included a videotaped confession in which he admitted an intention to use his violent skills to attack hospitals, banks, grocery stores, and government buildings in the US.
Ahmed Sattar was sentenced to 24 years in prison on murder conspiracy charges identical to the charges in the Padilla case. But prosecutors in Mr. Sattar's case presented evidence that he personally relayed a religious order from an imprisoned militant Muslim cleric in the US that sparked a resumption of terrorist attacks in Egypt.
A life sentence in the Padilla case would provide federal prosecutors with a powerful tool to prevent future acts of terrorism in cases in which US officials have minimal evidence, legal analysts say. But they add that it would raise important constitutional questions and civil liberties concerns.
A life sentence for Padilla is also important to the Bush administration, analysts say, because it would help justify Padilla's earlier detention and harsh interrogation in a brig in South Carolina. Padilla, a US citizen, was held for three and a half years without charge after being designated an enemy combatant by President Bush.
Padilla burst onto the national stage in June 2002 when US officials announced that he'd been detained as an enemy combatant for allegedly plotting to detonate a radiological "dirty bomb" in a US city. US officials later backed away from the claim and instead suggested he was sent to blow up occupied apartment buildings.
In June 2004, Justice Department officials said Padilla had given a full confession during his military interrogation in the brig. But officials conceded that the information probably could not be admitted in an American courtroom because coercive methods used during Padilla's interrogation rendered the information too unreliable for use as admissible evidence.
No court has yet ruled on the constitutionality of Padilla's detention in the brig or on the legality of the harsh interrogation methods used against an American citizen detained on US soil.
Lawyers for Padilla have filed civil lawsuits in South Carolina and California seeking to hold Bush administration officials and military personnel legally accountable for Padilla's alleged mistreatment and torture.
During the sentencing hearing in Miami, Padilla's lawyer urged Cooke to give Padilla credit for his three and a half years in the brig and for the two additional years he was held in Miami in solitary confinement prior to his trial. Prosecutors countered that Padilla's brig detention has nothing to do with the criminal charges in the Miami case.
Padilla was given an opportunity on Friday to address Cooke. He declined.
A day earlier, Padilla's mother, Estela Lebron, told the judge: "I just want to let you know my son is not a monster, and he is not a danger to this country."
She added, motioning toward the prosecutors, "What they are doing to my son is injustice."
Cooke has announced that she will hand down sentences for Padilla, Mr. Hassoun, and Mr. Jayyousi at 11 a.m. on Tuesday.