NEW YORK—"Just about everyone agrees that the recent conviction of Abdullah al-Muhajir, a.k.a. Jose Padilla, is a good thing," wrote right-wing pundit Neil Kressel in The New York Post. Indeed, just about everyone did. "It is hard to disagree with the jury's guilty verdict against Jose Padilla, the accused, but never formally charged, dirty bomber," opined the liberal editorial board of The New York Times. (They went on to criticize the way the Bush administration denied Padilla due process.)
Meet Mr. Not Everyone.
Padilla, a 36-year-old American citizen born in Brooklyn who converted to Islam, was arrested at Chicago's O'Hare airport in May 2002. Using the bombastic 1984-style rhetoric of the post-9/11 era, then-Attorney General John Ashcroft announced that Padilla had participated in an "unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." Padilla's arrest, Ashcroft ranted, would have caused "mass death and injury" in an American city.
But there wasn't any evidence. Or there wasn't enough to convict him in court. Which was, under the system of justice citizens of Western countries have lived under for eight centuries, the same thing.
Before 9/11 and "preventative detention" and legal torture and scary new laws like the USA-Patriot Act and the Military Commissions Act eliminated habeas corpus, Padilla would have sat in jail a day or two. He might have gotten roughed up. Then he'd have walked.
That was under democracy. In Bush's neofascist security state, Padilla rotted in solitary confinement—in a military brig—for three and a half years. (Read Henry Charriere's classic prison memoir Papillon if you doubt that solitary confinement is a form of torture.) No family visits. No lawyer. They subjected him to sensory deprivation, covering his eyes and ears to make him lose his mind.
And still no trial. Because the government knew Padilla was innocent.
By 2006, Bush was unpopular. Federal judges had begun to regrow their 'nads, ruling that the administration had to charge Padilla or release him. So the Bushies came up with a clever dodge whose narrow legalism was worthy of depends-on-the-meaning-of-is: they transferred Padilla to the civilian justice system and charged him with something else.
Or, to be specific, something less. They added Padilla to a case against two Middle Eastern men on trial for "conspiracy to murder, kidnap and maim people in a foreign country" and "material support" for Islamic terrorism. Padilla had met the two in Florida and, prosecutors say, traveled to Afghanistan in 2000 to join al-Qaida. The key evidence presented was Padilla's supposed al-Qaida application form, which fingerprints proved he had handled.
Padilla's public defenders claimed that their client was forced to pick up the "al-Qaida form" in the brig. Who knows what happened while he was "disappeared" during those three and a half years?
"There is no need to show any particular violent crime [in a conspiracy trial]," said law professor Robert Chesney, of Wake Forest University. "You don't have to specify the particular means used to carry out the crime." Nevertheless, Padilla faces the possibility of life in prison.
Of course, the United States wasn't at war with Afghanistan in 2000. Before 9/11 the Clinton and Bush administrations, both sent millions of dollars to the Taliban. The vast majority of Muslims who trained at al-Qaida camps never plotted against the United States. They planned to fight in places like Chechnya, Kosovo and Xinjiang. Padilla's membership in al-Qaida, even if proven, doesn't prove anti-Americanism.
Post-9/11 conspiracy prosecutions are de facto attempts to make anti-Americanism—the mere thought, not any action—illegal.
"It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap," said Peter Margulies, a law professor at Roger Williams University. The conspiracy count against Padilla, Margulies continued, "is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime."
The charge was laughable and the standard of proof rock-bottom. But the masters of Padilla's show trial didn't miss a chance to cheese up the proceedings.
Assistant U.S. Attorney Brian Frazier never presented evidence that Padilla actually joined or was accepted by al-Qaida. Nevertheless, reported the Associated Press, he "mentioned al-Qaida 91 times in his opening statement and more than 100 times in his closing, according to court transcripts." Padilla had nothing to do with 9/11. To link him to the attacks in jurors' minds, Frazier had them watch a seven-minute video clip of Osama bin Laden. (There's no evidence that Padilla ever watched the 1997 CNN interview.)
Padilla's lawyers asked the judge in the case to dismiss the case because he had been denied a speedy trial. Marcia Cooke said no—and ordered them not to talk to the jury about the three and a half years the defendant had spent being tortured and deprived of his rights.
Reporters' eyes rolled as Frazier said that government wiretappers heard Padilla and his two co-defendents use code words like "football" to mean jihad and "eggplant" and "zucchini" for weapons. "They wanted to recruit, fund and train fighters," he told the jury. "Playing this kind of football was more important than anything else to these men. What they were doing was no game." But, reported the AP, Padilla's "voice was only picked up on seven of the FBI intercepts, [and] he never talked in code." He shouldn't have been convicted—even on those lame-ass conspiracy charges.
Osama bin Laden is an ends-justifies-the-means kind of guy. So, apparently, is Uncle Sam. Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University, said after the verdict: "It's kind of a dirty victory because of the way the case came about, but still it's a victory nonetheless." Yeah. But for whom?
Ted Rall is the author of the new book Silk Road to Ruin: Is Central Asia the New Middle East?, an in-depth prose and graphic novel analysis of America's next big foreign policy challenge.