ARE SUSPECTED TERRORISTS ENTITLED TO "DUE PROCESS OF LAW"?

On August 16, Jose Padilla was found guilty, along with two co-defendants, of conspiracy to “murder, kidnap and maim” people in a foreign country. All three could be sentenced to prison for life. The case of Jose Padilla was brought to public attention by a number of events beginning more than five years ago.

Padilla was a native American citizen, arrested on May 2002, taken a month later to the Navy military brig in South Carolina, kept without human contact, lights, clock or a mirror, and interrogated without an attorney for another twenty-one months before he was permitted to speak to counsel, and retained in the brig for another twenty-two months before being transferred to a civilian prison in Miami, where he made his first court appearance on January 12, 2006. The extraordinary length of time between his arrest and court appearance is a gross violation of the fundamental right of habeas corpus (literally “to have a body”), that is, to bring a party before a judge or court in order to prevent the state from keeping an individual in unlawful restraint.

When Padilla was apprehended at O’Hare International Airport in Chicago upon ending a flight that began in Pakistan, he was carrying a small amount of money, a cell phone and e-mail addresses for Al-Qaeda operatives. President Bush had him designated as an “enemy combatant” and Attorney General John Ashcroft disclosed that he was suspected of planning to detonate a radioactive “dirty bomb” in an American city. More than a yeare and a half after he was detained, the Second Circuit Court of Appeals in New York ordered his release from military custody and permitted the government, if it chose, to try him in a civilian court. That ruling was suspended when the Bush Administration appealed to the U.S. Supreme Court.

A half-year later (more than two years after his arrest), the Justice Department released details about alleged admissions Padilla had made during interrogations about his involvement with top Al-Qaeda leaders, including the “dirty bomb” plan and another plot to fill apartments in high-rise buildings with natural gas and detonate them using timers. Nearly another eighteen months later, Padilla was added to an existing indictment in Miami claiming that he was part of a North American terror support cell that conspired to “murder, kidnap and maim” people overseas. No mention was made of the “dirty bomb” plot or any other earlier allegations. Fourth U.S. Circuit Court of Appeals Judge J. Michael Luttig criticized the Administration for using one set of facts to justify holding Padilla without charges and another set to persuade a Florida grand jury to indict him. The Supreme Court later overruled the Fourth Circuit and allowed the military to transfer Padilla to face the new criminal charges.

After a three month trial and one day of jury deliberations, Padilla, along with his co-defendants, was found guilty of the charges brought against them. During the trial, Padilla’s lawyers unsuccessfully sought to have him declared incompetent to stand trial because of the consequences of torture he had suffered in the military brig. All evidence concerning his military confinement was barred from the trial, as was any reference to the “dirty bomb” accusations. The government said that it had received the information by questioning other terrorism suspects abroad, and federal rules of evidence prohibit or limit the use of information obtained during such interrogations.

Padilla’s co-defendnts were two men of Middle Eastern decsent, one of whom he had met before. The three were charged with belonging to a terrorism support cell that provided money, recruits and supplies to Islamic extremists. The government had recorded voluminous messages in which his co-conspirators were charged with using code words to assist in supporting violent jihad. Padilla did not participate in any of these messages. The government also played wiretapped calls in which the two co-conspirators discussed a television interview with Osama bin Laden. There was no evidence that Padilla had seen or discussed the interview. Trying Padilla along with the other two men, inextricably linked him with them, but the only evidence linking Padilla to Al Qaeda was his name and six fingerprints on an application to attend an Al Qaeda training campl in Afghanistan in 2000.

Nothing in this summary account of the incarceration, interrogation or trial of Jose Padilla is offered in his defense. On the record, Padilla was a dangerous man. He had been a member of a street gang, was implicated in a murder when he was 13 and confined as a juvenile offender, and was later arrested in Florida in a road-rage shooting incident and spent a year in a Florida jail. It is plausible, if not conclusively proven, that his closeness to Al Qaeda signified a willingness to engage in acts of murder, kidnapping and maiming others. It is possible, although no evidence to this effect has been introducted into any court of law, that Padilla participated in a plot to set off a “dirty bomb.” It is possible that he was capable of the most horrendous terrorist acts against innocent people.

If all this were true, the question would remain: Has justice been done? Can a suspected criminal receive justice if he is without human contact or light or basic information in a military prison? Can a suspected criminal receive justice if he has no access to legal counsel for two years? Can a suspected criminal receive justice if his allegations of abusive treatment are barred from his trial because the results of illegal interrogations conducted in prison may not be introduced into evidence? Can a suspected criminal receive justice if he is incarcerated for five years on charges regarding which no evidence has been introduced and that are totally discarded when he is brought to trial?

The Fifth Amendment to the U.S. Constitution states that no one (citizen or non-citizen) shall “be deprived of life, liberty, or property, without due process of law.” The Sixth Amednment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…and be informed of nature and cause of the accusation;…and to have the assistance of counsel for his defense.” There are no exceptions to these rights.

The rule of law does not apply less to the worst of men than it does to the best. Whatever the extent of Padilla’s guilt, justice has not been done.