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Padilla: We Got Lucky By: Neil J. Kressel
FrontPageMagazine.com | Tuesday, August 21, 2007


JUST about everyone agrees that the recent conviction of Abdullah al-Muhajir, a.k.a. Jose Padilla, is a good thing.

The Brooklyn-born American citizen and al Qaeda operative allegedly planned to detonate a radioactive "dirty bomb" in an American city. Now, he faces a life sentence for conspiracy to murder, kidnap and maim his fellow Americans.

Unfortunately, some legal pundits have been getting the lessons of the case all wrong.

They tell us we now have proof that the courts work fine. There's no point in Bush-style efforts to work around, supplement and change the system.

For example, Clinton Justice Department lawyer Michael Greenberger says, "This demonstrates, at least for now, that the United States is fully capable of prosecuting terrorism, while affording defendants the full procedural protections of the Constitution."

Neal Sonnett, the head of the American Bar Association task force on treatment of enemy combatants, agrees, adding that Padilla's conviction shows we do not need a detention camp at Guantanamo Bay.

What these guys are missing is critical.

The prosecution in the Padilla case had one very strong piece of admissible evidence: a five-page application to attend an al Qaeda training camp in Afghanistan. Padilla's fingerprints were all over the form.

Next time, the prosecution's best evidence might not be admissible.

Even more important, the government couldn't even charge Padilla with his most notorious crime. The "dirty bomb" plot was not included in the indictment, although Padilla confessed that he had explored it. He apparently wasn't read his rights and didn't have access to an attorney.

Without the lucky al Qaeda application, the courts might have been forced to set Padilla free to take another shot at mass destruction.

What's more, until the verdict was announced, nobody knew how the jury would decide. Without access to all the government's information, it is indeed fortunate that jurors did not buy defense arguments that Padilla and his associates were merely engaged in study and charity.

Next time, again, we might not be so lucky. Few prospective terrorists will be deterred by fear of facing the American criminal justice system.

And to prevent attacks, we need precisely the sort of investigative work that often fails to produce admissible evidence. The rules governing admissibility were not designed with terrorist threats in mind.

And if we manage to get a reliable source of information on terrorist activities, we might not want to disclose it in open court.

New thinking is needed. The Bush administration declared Padilla an enemy combatant and then ran into problems with the legal system. The lesson of this case is not that the courts are an effective tool in the War on Terror, but that they can often impede its prosecution.

Neil J. Kressel's new book, "Bad Faith: The Danger of Religious Extremism," will be published in September by Prometheus Books.




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