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Jose Padilla's Fate -- and Ours

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The opening sentence of an August 17, New York Times editorial reads: "It is hard to disagree with the jury's guilty verdict against Jose Padilla." There follows not a single word in support of this dogmatic editorial pronouncement – not a word presenting the charges against Padilla or the evidence in support thereof.

But take a close look at those charges and that evidence and I submit that you might find abundant reason to disagree with the jury's guilty verdict

Despite this initial sentence, the remainder of the Times' editorial consists of a commendable criticism of "the Bush administration's serial abuse of the American legal system." I will have much to say about this "abuse" shortly.

But first, let's take that close look at the charges and the evidence against Padilla.

The Charges and the Evidence.

Padilla and his two co-defendant were found guilty of conspiracy to murder, kidnap and maim overseas, and of providing material support for terrorists. These offenses could result in sentences of life in prison. Sentencing is set for December 5.

The prosecution failed to specifically identify any of the allegedly intended victims of murder, kidnapping and maiming. Furthermore, the defense claimed that the so-called "material support" was, in fact, contributions to Islamic charities.

The crime for which Padilla was initially accused and arrested in June, 2002, plotting to set off a radiological "dirty bomb," played no part in the trial. From Moscow, the Attorney General, John Ashcroft, announced Padilla's arrest in Chicago. That announcement and arrest took place, coincidentally or not, just two weeks after FBI agent Colleen Rowley's explosive disclosure of the FBI's failure to follow evidence that might have foiled the 9/11 attacks. Following that arrest, the "dirty bomb" allegation faded away, due to lack of evidence.

Just two categories of evidence were presented against Padilla by the prosecution: a "mujahideen data form" with Padilla's fingerprints, and wiretapped phone calls.

Concerning the "application form," it is noteworthy that there is no chain of custody linking that form with it's alleged "discovery" among a truckload of documents hauled out of Afghanistan. That form could have been handed to Padilla at any time during his three and a half years in custody. Also, strange to say, those fingerprints are found only on two of the five pages. There is no evidence that Padilla ever attended the "training camp" to which he had allegedly applied.

Regarding the wiretaps, Lewis Z. Koch reports

The prosecution has in its possession 300,000 wire taped conversations involving Padilla's two alleged co-conspirators Adham Hassoun and Kifak Jayyousi, of which 230 were the core of its case. Only 21 of these 300,000 make reference to Padilla. Of these the government produced 7, count 'em 7, phone calls with Padilla's voice and not one making a reference to the charges he was indicted on "murder, or kidnaping or maiming."

In the final paragraph of the aforementioned New York Times editorial, we are assured that "a would-be terrorist will be going to jail." "Would-be?"

At best, the prosecution proved that Padilla "intended" to receive al Qaeda training, and "intended" to "murder, kidnap and maim." There was not a scrap of evidence that he acted on any of these intentions. And so, simply stated, Padilla was convicted of "thought-crime" and "pre-crime" (as depicted in the 2002 movie, "Minority Report").

(For still more condemnation of the Padilla trial and verdict, see Paul Craig Roberts' "Padill a Jury Opens a Pandora's Box," Lewis Z. Koch's running commentaries on the trial,  and the comments that followed the Common Dreams  publication of the New York Times editorial).

Was Padilla guilty as charged? Frankly, I don't know. I did not attend the trial and did not hear the evidence and arguments. But of this much, I am confident: that evidence and those arguments did not rise to the level of "beyond reasonable doubt." And in our legal system – at least, that system pre-Bush – failure to achieve that degree of certitude calls for a verdict of not guilty.

Furthermore, Padilla's treatment prior to his trial, was of itself grounds for a directed acquittal from the bench. Nonetheless, not only did the defense's motion for acquittal fail, the circumstances of Padilla's three and a half year incarceration in a Naval Brig were ruled inadmissible at the trial. The jury heard nothing about it.

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Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. Partridge has taught philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The (more...)

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