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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.


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    Paul Craig Roberts wrote the Kemp-Roth bill and was assistant secretary of the Treasury in the Reagan administration. He was associate editor of the Wall Street Journal editorial page and contributing editor of National Review. He is author or co-author of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon chair in political economy, Center for Strategic and International Studies, Georgetown University, and senior research fellow, Hoover Institution, Stanford University. He has contributed to numerous scholarly journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury's Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell.

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