The case of al-Qaida suspect Jose Padilla raises questions about whether a U.S. citizen detained on American soil can be held without trial in the name of the war on terrorism. For 3-1/2 years, Padilla was jailed as an “enemy combatant” under military custody, which denied him the right to legal counsel and a trial. Although he is in the civilian court system now, the Supreme Court has expressed no interest in addressing the constitutionality of a president’s wartime power to declare someone like Padilla an “enemy combatant.”

Alleged al-Qaida operative Padilla, a U.S. citizen jailed as an “enemy combatant” for 3-1/2 years without formal charges, was transferred from military custody to a civilian court on Jan. 5. Padilla, 35, a former Chicago gangster, is charged with conspiracy to “murder, kidnap and maim” abroad, but has not been charged for his alleged plans to detonate a radioactive “dirty bomb” inside the United States, an assertion made by the Justice Department in justifying his 2002 arrest. Attorney General Alberto Gonzales has declined to explain why this charge was not included.

Lawyers have worked for years to get Padilla out of military custody. Padilla was detained indefinitely in a South Carolina military brig without formal charge, without legal counsel and without a hearing. In November, as Padilla’s lawyers prepared to take his case to the Supreme Court – which likely would have found Padilla’s military incarceration to be unconstitutional – federal prosecutors requested that he be transferred to civilian court. The Supreme Court approved the request, and a grand jury indicted Padilla on criminal charges. His court date is set for September and could take six months.

President Bush designated Padilla as an “enemy combatant” in June 2002, a month after he was arrested at Chicago’s O’Hare International Airport allegedly on an al-Qaida terrorist mission. His case raised questions about whether U.S. citizens detained on American soil could be held without trial in the name of the war on terrorism. Bush’s lawyers have defended the president’s power. “The capture and detention of enemy combatants during wartime falls within the president’s core constitutional powers as commander in chief,” Bush’s lawyers told a U.S. appeals court. In September, the 4th Circuit Court of Appeals ruled that Bush had the power to hold Padilla under those conditions. It was not until November, as Padilla’s lawyers prepared to appeal the decision to the Supreme Court, that federal prosecutors voluntarily called for Padilla’s transfer to civilian court.

Padilla’s lawyers, still wanting a definitive answer on whether the president could incarcerate U.S. citizens during wartime for an unlimited time without trial, planned to take Padilla’s case to the Supreme Court late last year. But because Padilla was already being moved out of military custody, the high court dismissed the case as moot. Analysts say the Supreme Court was trying to stay out of the contentious debate entirely. In authorizing Padilla’s transfer from military custody to civilian court, the high court had only this to say: “The government’s application presented to the chief justice and referred by him to the court is granted.”

Padilla, also known as Abdullah al-Espani, is one of five co-defendants charged with operating a North American cell providing finances, recruits and supplies to terrorists. The grand jury indictment alleges that in 1993, the men began to raise money and recruit support for radical Islamic causes in Bosnia, Kosovo, Chechnya and elsewhere. The indictment does not mention a specific attack, nor does it link the men directly to al-Qaida. Defense Department and Justice Department documents, however, show that during his 3-1/2 years of military custody, Padilla admitted to training in an al-Qaida training camp, to planning to blow up apartment buildings in the United States, and to proposing to al-Qaida leaders that he detonate a radioactive “dirty bomb.” But Padilla’s statements to interrogators will likely be inadmissible in court because they were made without a defense lawyer present.

In prosecuting the case, the government could be forced to disclose sensitive intelligence data, and the case likely will bring unwanted attention to U.S. detention and interrogation techniques, which already are under fire. According to a Justice Department document, some information implicating Padilla came from Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks who is being held at a secret location outside the United States. It is not known what techniques have been used to induce Mohammed to talk. Another source of information, Mohamed al-Kahtani, a Saudi Arabian detainee at Guantanamo Bay who has claimed to be the missing 20th hijacker, may have been mistreated and abused during his interrogation. On one occasion, he was allegedly shackled to the floor, and in another he was allegedly smeared in red ink, which he was told was menstrual blood – a symbol of uncleanliness in the Muslim faith.

On Feb. 3, Padilla appeared at a U.S. district court hearing in Miami with co-defendant Adham Amin Hassoun, a former Florida computer programmer and U.S. citizen. The other three co-defendents, who did not appear at the hearing, are Kifah Wael Jayyousi, a Jordanian-born U.S. citizen who worked as a school administrator in Detroit and Washington, D.C., and is in U.S. custody; Mohamed Hesham Youssef, an alleged terror recruit being held by Egyptian authorities; and Kassem Daher, a Canadian who is believed to be overseas.

At the Miami hearing, Padilla and Hassoun walked into the courtroom wearing handcuffs and ankle chains as a security precaution. This prompted U.S. District Judge Marcia Cooke to demand that the shackles be removed in open court unless the defendants posed an immediate threat. Analysts say that the judge’s order underscores the difference for Padilla between his 3-1/2 years in U.S. military custody and the due process protections afforded to him by the U.S. justice system.

Also during the routine hearing on Feb. 3, federal prosecutors revealed that the thousands of pages of transcripts they provided to the defense team were drafts, not the final versions they will use at trial. The disclosure incensed lawyers for the defendants, who said they have already spent countless hours reviewing the transcripts and paid thousands of dollars for independent translations. Hassoun’s lawyer, Kenneth Swartz, called the government’s behavior “outrageous” and pointed out that a “couple of words could be the difference between indictment and no indictment.” Cooke ordered the government to provide final versions of the transcripts by March 10.

Senior Justice Department officials, who have spoken to reporters on condition of anonymity, have acknowledged that cases such as Padilla’s are difficult to bring into open court. For example, the government’s case against Zacarias Moussaoui, the only person charged in the United States in connection with the Sept. 11 attacks, has been mired in appeals over the defense’s demand for access to its client and other al-Qaida operatives. One Justice Department official has likened the Padilla case to nabbing Al Capone. The legendary mobster was brought to court on tax evasion charges, not murder.

Although Padilla is in the civilian court system now and no longer an “enemy combatant,” his long-time status as one under President Bush is a case study in the government’s power to take away even a U.S. citizen’s right to a fair trial. Throughout Padilla’s 3-1/2 years in military custody, the government was not required to charge him with a crime, nor to allow him to seek legal representation. These special wartime powers, which the president’s lawyers have so vigorously defended, are viewed by many as essential post-9/11 security measures to protect Americans from terrorism. But when these measures conflict directly with the constitutional protections afforded to all U.S. citizens, it becomes the judicial system’s responsibility to check executive powers. So far, the Supreme Court is staying silent on the issue.

Sources

Nelson, Gary. “No cuffs, ankle chains for Jose Padilla in court.” The Associated Press. 3 Feb 2006.

Savage, David G. “The power of the president.” Los Angeles Times. 6 Feb 2006.

“Judge: No handcuffs in court for Padilla.” Knight Ridder Newspapers. 4 Feb 2006.

“Some confessions the government alleges it got from Jose Padilla.” The Associated Press. 5 Feb 2006.

“Accused of al-Qaida training, Padilla enters not guilty plea.” St. Petersburg Times. 13 Jan 2006.

“U.S. terror suspect Jose Padilla makes first court appearance in Miami.” Agence France Presse. 5 Jan 2006.

Savage, David G. “High court OKs moving Padilla to jail.” Los Angeles Times 5 Jan 2006.

McCaffrey, Shannon. “Indictment of Padilla unveiled.” Knight Ridder Newspapers. 23 Nov 2005.