News Analysis

José Padilla, a U.S. citizen and convert to Islam, was convicted by a federal jury in Miami, on Aug 16, on three charges of conspiracy and material support for terrorism. The verdict may be appealed.

The case, however, continues to be central to accusations that the Bush administration has gone berserk in its attacks on due process.

Padilla was arrested at Chicago’s O’Hare airport on May 8, 2002. The reason originally given for his arrest was that he was a “material witness” to the events leading up to Sept. 11, 2001. But a month later, Attorney General John Ashcroft claimed that Padilla was a major Al Qaeda operative assigned to detonate a radioactive “dirty bomb” in an American city. Later, the government claimed he was planning to blow up apartment buildings with natural gas, and that he had been in Afghanistan with top Al Qaeda leadership in 2001.

The nation waited with bated breath for such charges to be turned into indictments and for evidence to be presented at trial. But the government immediately asserted the right to hold Padilla indefinitely without trial as an “illegal enemy combatant.” It claimed authority to do so under legislation passed by Congress authorizing the government to act against states and individuals responsible for the 9/11 terrorist attacks. So Padilla, a U.S. citizen arrested on U.S. soil, was kept prisoner without being charged, not even able to see relatives or a lawyer for two years. Padilla’s attorneys accused the government of subjecting him to torture in the form of bombarding him with loud noises and extreme heat, forcing him to stand or sit in stress positions for hours, and subjecting him to social and sensory isolation. Defense experts testified that the government seriously damaged his mind in the process.

Padilla’s attorneys strongly challenged the government, with mixed results. In 2005, the case was going to the Supreme Court, which had shown some skepticism about the government’s assertions of unlimited power. So in November 2005, the government suddenly indicted Padilla, thus getting the Supreme Court to drop consideration of whether they were right to hold him without trial or lawyer in the first place.

But the dirty bombs, exploding apartment buildings and high-level Al Qaeda instructions in the meanwhile had completely vanished. The government accused Padilla (and his co-defendants) of conspiring to kill people in Chechnya and Bosnia in the 1990s and to provide material aid to terrorism.

The evidence against Padilla was sparse, consisting of an application form to participate in an Al Qaeda training camp and telephone conversations in which support for terrorism was supposedly discussed in code.

Though establishment media, academic and legal pundits hailed the verdict as proving that the government “does not need” to step outside the Constitution in order to prosecute terrorists, others were still bothered by several aspects of the case:

• The use of “conspiracy” charges without any evidence of overt acts can easily be abused, with loose talk or, in this case, filling out a form becoming something that can get you sent up for life.

• Supposedly coded communication in which words like “zucchini” and “eggplant” were alleged by the government to refer to weapons of mass destruction goes back at least to the Joe McCarthy days, when the government claimed that “code language” meant whatever it wanted.

But the most problematic element of the Padilla case was that a U.S. citizen was arrested in the U.S. and kept in terrible conditions for years, without having been convicted of any crime. The Bush administration claimed it had a right to jail him forever without trial, merely by declaring him to be an “illegal enemy combatant,” a direct attack on the ancient right of habeas corpus. The administration, by suddenly indicting him on the lesser charges, has evaded accountability for its high-handed acts once again.