[Peace-discuss] Padilla trial.

[Morton K. Brussel]

Notes on the Padilla trial. --mkb

  August 20, 2007
Padilla Jury Opens Pandora's Box
by Paul Craig Roberts

José Padilla's conviction on terrorism charges on Aug. 16 was a  
victory, not for justice, but for the U.S. Justice (sic) Department's  
theory that a U.S. citizen can be convicted, not for committing a  
terrorist act but for allegedly harboring aspirations to commit such  
an act. By agreeing with the Justice (sic) Department's theory, the  
incompetent Padilla jury delivered a deadly blow to the rule of law  
and opened Pandora's Box.

Anglo-American law is a human achievement 800 years in the making.  
Over centuries law was transformed from a weapon in the hands of  
government into a shield of the people from unaccountable power. The  
Padilla jury's verdict turned law back into a weapon.

The jury, of course, had no idea of what was at stake. It was a  
patriotic jury that appeared in court with one row of jurors dressed  
in red, one in white, and one in blue (Peter Whoriskey, Washington  
Post, Aug. 17, 2007). It was a jury primed to be psychologically and  
emotionally manipulated by federal prosecutors desperate for a  
conviction for which there was little, if any, supporting evidence.  
For the jury, patriotism required that they strike a blow for America  
against terrorism. No member of this jury was going to return home to  
accusations of letting off a person who has been portrayed as a  
terrorist in the U.S. media for five years.

The "evidence" against Padilla consists of three items: (1) seven  
intercepted telephone conversations, (2) a 10-year-old non-relevant  
video of Osama bin Laden, and (3) an alleged application to a  
mujahedeen (not terrorist) training camp with Padilla's fingerprints.  
We will examine each in turn.

The International Herald Tribune and Associated Press reported in  
detail on the telephone intercepts (June 19, 2007): "Accused al-Qaeda  
operative José Padilla was never overheard using purported code words  
for violent jihad in intercepted telephone conversations and spoke  
often about his difficulties in learning Arabic while studying in  
Egypt, the lead FBI case agent testified Tuesday. The questioning of  
FBI Agent James T. Kavanaugh by Padilla attorney Michael Caruso  
focused on seven intercepted telephone calls on which Padilla's voice  
is heard mostly talking about his marriage and his studies but never  
about Islamic extremism. … Caruso asked Kavanaugh if Padilla ever was  
heard using what prosecutors say were code words for violent jihad. …  
'No, he does not,' Kavanaugh replied. … Caruso asked Kavanaugh if  
Padilla was ever overheard discussing jihad training. 'No jihad  
training that I've seen,' Kavanaugh said. … 'He's not referring to  
anything here but studying Arabic, correct? Study means study,  
right?' Caruso asked. 'That's what they're talking about,' Kavanaugh  
testified."

Despite the FBI's testimony that the intercepted telephone messages  
contained no incriminating evidence, the "patriotic" jury accepted  
the federal prosecutor's unsupported accusation that there were  
hidden code words in the message indicating that Padilla was a  
terrorist. After all, who but a terrorist would want to learn Arabic?

The video of bin Laden had no relevance whatsoever to the charges in  
the case. The video is 10 years old and makes no reference to any of  
the defendants. Moreover, none of the defendants were accused of ever  
being in contact with bin Laden. The only purpose of the video was to  
arouse in jurors fear, anger, and disturbing memories associated with  
Sept. 11, 2001. The fact that the judge let prosecutors sway a  
fearful and vengeful patriotic jury with emotion and passion rather  
than evidence is obviously grounds for appeal.

Whoriskey reports that in their closing arguments prosecutors  
mentioned al-Qaeda more than 100 times and urged jurors to think of  
al-Qaeda and groups alleged to be affiliated with it as an  
international murder conspiracy. Padilla "trained to kill,' Assistant  
U.S. Attorney Brian Frazier misinformed the jury in his closing  
statement.

Who Padilla wished to kill was never identified, but according to the  
prosecutors he had been wanting to kill persons unknown since 1998.  
Padilla was convicted for harboring alleged intentions, not for  
committing any acts. Indeed, no harmful acts are charged to Padilla.  
The incompetent jury fell for the prosecutors' wild tale of a murder  
conspiracy many years old that had no results.

As Andrew Cohen put it, Padilla and the two co-defendants were  
convicted on the charge of "terrorist-wannabes" on the basis of  
"evidence that federal authorities did not believe amounted to a  
crime when it was gathered back before 2001." Cohen concludes: "it's  
further proof that if you can convince an American jury that a man in  
the dock had anything to do with al-Qaeda, you can pretty much bank  
on a conviction no matter how tenuous the  
evidence" (WashingtonPost.com, Aug. 16, 2007).

The training camp application form is as suspect as any evidence can  
be. Moreover, the prosecution had no evidence that Padilla actually  
attended such a camp. Padilla was held illegally for 3.5 years and  
tortured. At any time during his illegal detention and torture,  
Padilla could have been handed a form, thus tainting it with his  
fingerprints.

Amy Goodman, the forensic psychiatrist Dr. Angela Hegarty, the  
Christian Science Monitor, and others have described how U.S.  
interrogators abused Padilla and destroyed his mind. To expect a  
person as badly tortured and abused as Padilla to retain the wits not  
to touch a piece of paper handed to him, or forced into his hands, is  
unreasonable.

When Padilla was arrested five years ago in 2002, the U.S. government  
charged that he was about to set off a radioactive "dirty bomb" in a  
U.S. city that would kill tens or even hundreds of thousands of  
Americans. The story was a total lie, a fabrication designed to keep  
the fear level high after 9/11 in order to keep support for the Bush  
regime's wars and domestic police state. None of the charges on which  
Padilla was illegally held, during those years before the U.S.  
Supreme Court intervened and ordered the Bush regime to release  
Padilla or bring him to trial, were part of the charges on which  
Padilla was tried.

There is little doubt that Padilla's conviction, and probably also  
the convictions of the two co-defendants, is a terrible injustice.  
But the damage done goes far beyond the damage to the defendants.  
What the red, white, and blue Padilla jury has done is to overthrow  
the U.S. Constitution and give us the rule of men.

The U.S. Constitution and Anglo-American legal tradition prevent  
indictments, much less convictions, based on a prosecutor's theory  
that a person wanted to commit a crime in the past or might want to  
in the future. Padilla has harmed no one. There is no evidence that  
he made an agreement with any party to harm anyone whether for money  
or ideology or any reason. The FBI testified that the telephone calls  
were innocuous. The bin Laden video was evidence of nothing  
pertaining to the defendants. The piece of paper, alleged to be a  
personnel form recovered from an al-Qaeda camp in Afghanistan, is  
nothing but a piece of paper and an assertion.

As Lawrence Stratton and I demonstrated in our book, The Tyranny of  
Good Intentions (2000), the protective features of law had been  
seriously eroded prior to the Bush regime's assault on civil liberty  
in the name of "the war on terror." The U.S. Constitution and the  
Bill of Rights rest on Blackstone's Commentaries on the Laws of  
England. Blackstone explained law as the protective principles  
against tyranny – habeas corpus, due process, attorney-client  
privilege, no crime without intent, no retroactive law, no self- 
incrimination.

Jeremy Bentham claimed that these protective principles were outmoded  
in a democracy in which the people controlled the government and no  
longer had reasons to fear it. The problem with Blackstone's "Rights  
of Englishmen," Bentham said, is that these civil liberties  
needlessly limit the government's power and, thus, its ability to  
protect citizens from crime. Bentham wanted to preempt criminal acts  
by arresting those likely to commit crimes in advance, before the  
budding criminals entered into a life of crime. Bentham, like the  
Bush regime, the Padilla jury, and the Republican Federalist Society,  
did not understand that when law becomes a weapon, liberty dies  
regardless of the form of government. If they do understand, they  
prefer unaccountable government power to individual liberty.

The incompetent Padilla jury has done Americans and their liberty far  
more damage than will ever be done by terrorists, other than those in  
our criminal justice (sic) system who now wield the powers that  
Bentham wanted to give them.

The Padilla case was the way the Bush Justice (sic) Department  
implemented its strategy for taking away the legal principles that  
protect American citizens. Padilla is an American citizen. He was  
denied habeas corpus and his rights to an attorney and due process.  
He was tortured in an attempt to coerce him into self-incrimination.  
In treating Padilla in these ways, the U.S. Department of Justice  
(sic) violated both the U.S. Constitution and federal law. There is  
no doubt whatsoever that the Justice (sic) Department committed far  
more crimes than did Padilla.

By the time the Supreme Court finally intervened, Padilla was  
universally known as the demonized "dirty bomber," an "enemy  
combatant" who was arrested before he could set off a radioactive  
bomb in a U.S. city. The Injustice Department could now  
simultaneously convict Padilla and enshrine Benthamite law simply by  
appealing to fear and patriotism. And that is what happened.

Under Benthamite law, the individual has no rights. The new calculus  
is "the greatest good for the greatest number" as determined by the  
wielders of power. On the basis of this new law, not written by  
Congress but invented by the Injustice Department and made precedent  
by the Padilla jury's verdict, the U.S. can lock up people based on  
the percentage of crime committed by their race, gender, income  
class, or ethnic group.

Under Benthamite law, people can be arrested and prosecuted for  
thought crimes. Under Benthamite law, it is the government that  
protects the people, not the Constitution and Bill of Rights that  
protect the individual. Benthamite law makes "advocacy speech," for  
example, a call for the overthrow of the U.S. government, upheld in  
the 1969 Supreme Court decision, Brandenburg v. Ohio, a serious  
federal crime.

The Padilla jury has opened Pandora's Box. Unless the conviction is  
overturned on appeal, American liberty died in the Padilla jury's  
verdict.