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No Way, Jose By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, January 29, 2008


The latest chapter in the continuing saga of terrorist Jose Padilla—who hoped, perhaps expected, that if the gods smiled upon him he would have been acquitted—has ended with a federal judge in Florida sentencing him to 17 years in prison.

The story began with Padilla, a United States citizen and small time Chicago street criminal, becoming radicalized, training as a jihadist in Afghanistan and Pakistan, meeting with bin Laden’s deputy, and being handed off to 9/11 mastermind Khalid Shaikh Mohammed, to whom he pitched a couple of terrorism ideas.

One of Padilla’s ideas was to use open source Internet information to confect a nuclear device, and then explode it in the United States.

Padilla’s second idea was more modest. In major cities, he would rent two apartments in each of twenty high-rise buildings that were served by natural gas, seal up the doors, windows, and vents, turn on the gas, set timing devices, and sprint for the down elevator.

Little did the newly-minted jihadist know that terrorist Abu Zubaydah (doubtless the victim of demeaning treatment at the hands of American agents) had spilled the beans about Padilla’s association with al Qaeda. The government had additional information about him obtained from other terrorist detainees.

In May 2002, when Padilla returned to the United States and landed at O’Hare Airport in Chicago, the FBI arrested him. Transferred to New York, he was detained under the “material witness” statute in connection with the government’s continuing investigation into terrorism.

A month later Padilla was designated by the President as an “enemy combatant.” As such, he was removed from New York and incarcerated in a military detention facility in South Carolina.

In December 2003 the United States Court of Appeals for the Second Circuit in New York ruled that the President lacked power—either under the Constitution or federal statutes—to hold American citizens like Padilla indefinitely if they were seized in the United States.

The government appealed the Second Circuit’s ruling to the Supreme Court, which didn’t rule on the enemy combatant or detention issues. Instead, the Court held that when Padilla sued originally in New York to be released from custody there as a material witness he may have sued in the correct jurisdiction. But now that he was in South Carolina, that’s where his case belonged—and instead of suing Secretary of Defense Donald Rumsfeld, who no longer had custody of Padilla, he should have sued the brig’s warden in South Carolina, who did.

In February 2005 the South Carolina federal district court ruled that the government could not detain Padilla indefinitely, and had only two choices: let him go, or charge him with a crime.

The government appealed, and in September 2005 the United States Court of Appeals for the Fourth Circuit reversed the district court on the ground that, in enacting terrorism-related legislation, Congress had, in effect, given the president the power to detain Padilla.

In November 2005, the government indicted Padilla (under his real name and three aliases) and four other alleged terrorists. In essence, the indictment alleged that “at all times material to this Superseding Indictment”:

  • There existed a violent jihadist movement;
  • It consisted of certain named groups;
  • They “engaged in acts of physical violence, including murder” and other crimes;
  • The violence was supported by cells within the United States and elsewhere;
  • Padilla and his co-defendants operated in a North American cell, aiding jihad;
  • They supported Sheikh Omar Abdel Rahman, an influential high-ranking jihadist;
  • Another supporter was Mohamed Zaky;
  • Zaky operated at least three Islamic organizations in the United States;
  • He used these organizations to promote jihad;
  • Padilla’s co-defendants did essentially the same thing;
  • “Padilla was recruited by the North American support cell to participate in violent jihad and traveled overseas for that purpose.”

Padilla (and the others) was charged with the most serious counts: 1. Conspiracy to murder, kidnap, and maim persons in a foreign country; 2. Conspiracy to provide material support for terrorism; 3. Material support for terrorism.

In August 2007 Padilla and his four co-defendants went to trial in a Miami, Florida, federal district court.

The judge was Marcia G. Cooke, whose official professional biography (from “Judges of the United States Courts”) is as follows:

Born 1954 in Sumter, SC

Federal Judicial Service:
Judge, U. S. District Court, Southern District of Florida.
Nominated by George W. Bush on November 25, 2003, to a seat vacated by Wilkie D. Ferguson; Confirmed by the Senate on May 18, 2004, and received commission on May 18, 2004.

U.S. Magistrate, U.S. District for the Eastern District of Michigan, 1984-1992

Education:
Georgetown University, B.S.F.S., 1975.

Wayne State University Law School, J.D., 1977.

Professional Career:
Staff attorney, Neighborhood Legal Services, Michigan, 1978-1979.
Deputy public defender, Legal Aid and Defender Association, Michigan, 1979-1980.
Assistant U.S. attorney, Eastern District of Michigan, 1980-1983
Private practice, Michigan, 1983-1984.
Director of professional development and training, U.S. Attorney's Office, Southern District of Florida, 1992, 1994-1999.
Executive assistant U.S. attorney, Southern District of Florida, 1992-1994.
Chief inspector general, Executive Office of the Governor, Florida, 1999-2002
Assistant county attorney, Miami-Dade County, Florida, 2002-2004.

Race or Ethnicity: African American.

Gender: Female.

For openers, the judge concluded that the Count 1 conspiracy allegation was “light on facts”—even though the sole elements of a federal criminal conspiracy are (1) an agreement (which can even be oral) to do an illegal act, and (2) any act in furtherance of that agreement (even a perfectly legal act). So she dismissed the conspiracy count.

Predictably, Cooke’s indefensible ruling was reversed by the United States Court of Appeals for the Eleventh Circuit.

In August of last year, after a three-month trial but only a day-and-a-half of deliberations, jurors convicted Padilla on all counts—terrorism conspiracy, and providing material support to terrorists—having concluded that he was a principal in a support cell that sent recruits, money and supplies to Islamic extremists throughout the world, including al Qaeda. This bears repeating: Padilla was convicted of conspiracy (agreeing to do an illegal act(s), and he or any one of the others performing any overt act, even a legal one, in furtherance of that agreement) and of providing material support to terrorists.

Padilla’s sentencing hearing began early in January 2008, and took seven days. The government asked for life, the defense for ten years. The federal criminal sentencing guidelines suggested a range of 30-years to life.

Judge Cooke gave him 17 years.

Why?

Although Padilla (and the other four defendants) were convicted of serious terrorism crimes, and although a week prior to sentencing Judge Cooke had rejected his argument that he was a bit player in the terrorists’ conspiracy, ruling instead that the defendants qualified for increased penalties under the federal sentencing guidelines, at sentencing her bleeding heart got the best of her.

Ignoring that Padilla had not been charged with and convicted of killing, maiming or kidnapping anyone, but rather conspiring to do so, Cooke stated from the bench that in sentencing Padilla to slightly less than half of the suggested guidelines penalty she noted that “there is no evidence that these defendants personally killed, maimed or kidnapped anyone.” In other words, because there was no evidence of something they had not been charged with, she was inclined to be lenient.

Nor, Cooke said, had Padilla been charged with a plot to overthrow the United States government, so the jury’s failure to convict him of that was another factor in Cooke’s leniency. One can think of scores of other crimes of which Padilla had not been convicted, because he was not charged with any of them either—a spurious basis, to say the least, for leniency.

There was more. In giving Padilla such a light sentence given the crimes of which he was convicted, Cooke took into consideration the “harsh conditions” of Padilla's confinement in the Navy brig, including the “noise, no mattress, no books, no contact with family or a lawyer.” Rough!

There will be appeals, of course. Padilla’s lawyers will point to legal errors by the trial judge and complain about the sentence. The government will argue that Cooke’s 17-year sentence was too lenient under the circumstances.

While the gears continue to turn in the saga of Jose Padilla, what is to be learned from the case so far?

Lesson 1. When reliable intelligence provides information about a suspect and he is arrested, the announced charge should be the one he is eventually tried for. It was plainly stupid for the government to make Jose Padilla’s name synonymous with the characterization “Dirty Bomber,” but never try him on charges related to nuclear terrorism.

That disconnect between the spectacle of nuclear ash blanketing Miami and a “mere” conspiracy, and “simply” providing material support to terrorists, clearly influenced the judge.

Lesson 2. The government (probably the President and Congress together) should make unambiguous rules for the handling of American citizens allegedly involved in terrorist activities who are taken into custody in United States jurisdictions.

Padilla was not handled like John Walker-Lindh, an American citizen captured in Afghanistan while fighting with the Taliban, who from the beginning was put into the domestic criminal justice system.

The government’s vacillating back-and-forth with Padilla—first held as a “material witness,” then designated an “enemy combatant,” then held in a military brig, then indicted and tried in a federal district court—apparently contributed to Judge Cooke’s lenient sentence. There will be more American citizens involved in terrorist activities, and we are well advised to put some clear rules in place as to how they are to be handled.

Lesson 3. Such clear rules would go a long way to depriving sentencing judges of spurious rationales to justify lenient sentences. Moreover, if Padilla had originally been arrested, charged with conspiracy and providing material support (as was John Walker-Lindh), tried on those charges, and convicted, there would have been much less opportunity for the semi-circus that was the defense’s attempt to show that Padilla lacked the mental capacity to stand trial.

Lesson 4. Just because a candidate for a federal district judgeship was an Assistant United States Attorney, a federal magistrate, and worked for Florida Governor Jeb Bush, does not mean she was necessarily a suitable lifetime appointee for the bench. It is scandalous that in the face of the 30-years-to-life guideline, Judge Cooke sentenced Padilla to roughly half the minimum—let alone for her avowed reasons. There is no room on the federal bench (or any other, for that matter) for bleeding hearts who put emotion and irrationality above what the law requires.

Lesson 5. Perhaps most important of all, the Department of Justice must rid itself of the aversion to indicting American citizens for the constitutional and statutory crime of treason. As Erika Holzer and I have noted in our “Aid and Comfort”: Jane Fonda in North Vietnam (http://www.henrymarkholzer.citymax.com/books.html), no one has been indicted for treason since World War II (with one recent exception, a jihadist outside the country who we’ll never get our hands on). Not the Rosenbergs, not rogue CIA and FBI agents, not Taliban John Walker-Lindh—and of course not Hanoi Jane Fonda.

In essence, the Supreme Court of the United States, has required for a treason conviction that the government prove four elements: (1) an intent to betray the United States, (2) an overt act, (3) proved by two witnesses, (4) providing aid and comfort."

Clearly, Jose Padilla could have been indicted for (and ultimately convicted of) treason on the same evidence that convicted him of conspiracy and providing material support to terrorists.

Had he been indicted for treason, Padilla would have faced a much harsher penalty—death!—rather then the 30-years the guidelines suggested, the life sentence the prosecution wanted, or the 17 years the judge gave him for conspiracy and providing material support to terrorists.

The possibility of a death sentence would inevitably have caused Padilla to make a plea deal. In turn, that would have resulted in at least two substantial benefits for the United States. First, Padilla would have had to cooperate, and we may have obtained useful information about Islamic terrorism. Second, in a plea deal he would have had to spend considerably more time in a federal prison than the measly 17 years, or less with time served and good behavior. Indeed, Taliban John pleaded to providing material support, and accepted 20-years—three years more than what Padilla received after throwing the dice and going to trial. Surely, with the possibility of death hanging over his head, Padilla would have taken more than the 17 years Cooke gave him.

Thus, once again, while the government’s efforts have prevented Jose Padilla from being turned loose to continue jihad against his own country, those efforts fall far short of being as effective as they could have been. Conspiracy and providing material support are one thing. Committing treason is quite another.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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