Jose Padilla, a U.S. citizen held in a Navy brig as an enemy combatant for more than three years, was charged Tuesday with being part of a North American terrorist cell that sent money and recruits overseas to “murder, maim and kidnap.”
However, absent from the indictment were the sensational allegations made earlier by top Justice Department officials: that Padilla sought to blow up U.S. hotels and apartment buildings and planned an attack on America with a radiological “dirty bomb.”
Attorney General Alberto Gonzales wouldn’t say why none of those allegations were included in the indictment, commenting only on the charges that were returned by a Miami grand jury against Padilla and four other alleged members of a terror cell.
“The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad,” Gonzales said.
The latest twist
The charges are the latest twist in a case pitting the Bush administration’s claim that the war on terrorism gives the government extraordinary powers to protect its citizens, on one side, against those who say the government can’t be allowed to label Americans “enemy combatants” and hold them indefinitely without charges that can be fought in court.
By charging Padilla, the administration is seeking to avoid a Supreme Court showdown over the issue. In 2004, the justices took up the first round of cases stemming from the war on terrorism, and Justice Sandra Day O’Connor, who is retiring, wrote, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Eric Freedman, a professor at Hofstra Law School, said the Padilla indictment was an effort by the administration “to avoid an adverse decision of the Supreme Court.”
Jenny Martinez, a Stanford law professor who represents Padilla at the Supreme Court, said, “There’s no guarantee the government won’t do this again to Mr. Padilla or others. The Supreme Court needs to review this case on the merits so the lower court decision is not left lying like a loaded gun for the government to use whenever it wants.”
Padilla’s lawyers had asked the justices to review his case last month, and the Bush administration was facing a deadline of next Monday for filing its legal arguments.
‘Double, triple hearsay’ alleged by defense
Padilla’s appeal argues that the government’s evidence “consists of double and triple hearsay from secret witnesses, along with information allegedly obtained from Padilla himself during his two years of incommunicado interrogation.”
Gonzales said there no longer was an issue for the justices to resolve since Padilla would have his day in court. However, the attorney general would not rule out that Padilla could be reclassified as an enemy combatant at some point.
Padilla will be transferred from military custody to the Justice Department and will be held at a federal prison in Miami. Gonzales said the case would go to trial in September, in Miami.
Padilla could face life in prison if convicted of being part of a conspiracy to murder, maim and kidnap overseas. The other two charges, providing material support to terrorists and conspiracy, carry maximum prison terms of 15 years each.
Padilla was arrested at Chicago’s O’Hare International Airport in 2002 after returning from Pakistan. Then-Attorney General John Ashcroft alleged the former Chicago gang member planned an attack with a “dirty bomb.”
Inadmissible in court
Last year, then-Deputy Attorney General James Comey held a news conference to lay out claims Padilla had sought to blow up hotels and apartment buildings in the United States. Comey acknowledged the information, which he said came from Padilla and others during interrogation, would not be admissible in court because defense lawyers had not been present during the questioning.
The indictment does not say Padilla belonged to al-Qaida. Instead, it asserts he was recruited into a terrorist support cell that was raising money and recruiting operatives beginning in 1993 to fight for radical Islamic causes in Bosnia, Kosovo, Chechnya, Somalia and elsewhere. The indictment also mentions Afghanistan and Egypt, but makes no allegations of specific attacks anywhere.
The defendants are identified as followers and supporters of blind sheik Omar Abdel Rahman, who is serving a life prison sentence for conspiring to blow up New York landmarks and assassinate Egyptian President Hosni Mubarak.
The indictment also links the men to Mohamed Zaky, who prosecutors say created three Islamic organizations — the Islamic Center of the Americas, Save Bosnia Now and the American Worldwide Relief Organization — to “promote violent jihad.” Zaky was killed in fighting against Russian troops in Chechnya in 1995.
According to the indictment, Padilla traveled overseas to receive training and to fight violent jihad from October 1993 to November 2001. On July 24, 2000, Padilla is alleged to have filled out a “Mujahedeen Data Form” in preparation for violent jihad training in Afghanistan and reportedly was seen in that country in October 2000.
Others indicted
The others indicted are: Adham Amin Hassoun a Lebanese-born Palestinian who lived in Broward County, Fla.; Mohammed Hesham Youssef, an Egyptian who lived in Broward County; Kifah Wael Jayyousi, a Jordanian and U.S. citizen who lived in San Diego, and Kassem Daher, a Lebanese citizen with Canadian residency status.
Hassoun also was indicted on eight additional charges, including perjury, obstruction of justice and illegal firearm possession.
Hassoun, a Palestinian computer programmer who moved to Florida in 1989, was arrested in June 2002, accused of overstaying his student visa.
Hassoun and Jayyousi are in federal custody in Miami, while Youssef is serving a prison sentence in Egypt, Justice Department officials said. Daher is believed to be in Lebanon, but officials said they are uncertain whether he is in custody.