Legal landmines emerge in 'dirty bomber' case

Jose Padilla, the former Chicago street thug who allegedly turned Al Qaeda sympathizer, is best known for reportedly plotting to explode a radiological "dirty bomb" in a major US city.

But that alarming allegation is noticeably absent from Mr. Padilla's terror conspiracy indictment in federal court here. Instead, the most explosive allegation in the government's case is that Padilla broke US law by becoming an Al Qaeda recruit and filling out an application to be a holy warrior.

Ahead of Padilla's trial, set for Jan. 22, defense lawyers are filing a flurry of pretrial motions seeking to establish that the government engaged in outrageous conduct by having the military detain and interrogate Padilla. The conduct was so outrageous, they say, that all charges against him must be dropped.

What makes Padilla's case potentially so important is that he is the first person designated by President Bush as an enemy combatant to later face criminal charges in a civilian court.

As such, his case exists at the murky intersection of two contrasting systems. On one side is the criminal-justice system, which operates under established rules and constitutional mandates designed to protect the rights of American citizens. On the other is a military interrogation system run exclusively by the executive branch and designed to extract confessions from Al Qaeda suspects through methods that violate many of the fundamental rules of the criminal-justice system.

No matter how Padilla's case ends – with a conviction, an acquittal, or a plea bargain – his case is an important test of whether the government will be able to avoid legal consequences for the tactics it used during Padilla's military detention and interrogation.

In effect, the Padilla case may ultimately help make the world safer for use of coercive interrogation tactics. It could do so, analysts say, by establishing legal precedents that insulate military interrogations from scrutiny by civilian judges in federal courts.

"This is one of the first cases with this overlap of military custody and civilian custody," says Timothy Lynch of the libertarian Cato Institute in Washington.

Padilla's treatment raises a "profound" legal issue, he says. "What can our military do to an American citizen held in military custody? Our legal system is not poised to confront that and resolve it," Mr. Lynch says.

In June 2002, Mr. Bush designated Padilla an enemy combatant. He was held in a military brig in South Carolina for more than 3-1/2 years without being charged with a crime or told how long his detention might last. For nearly two years he was not allowed to consult with a lawyer or to contact friends or family. He was told he had no right to remain silent.

It was all done by the US government for a good cause: Intelligence officials wanted to learn as quickly as possible everything Padilla knew about Al Qaeda's plans and operations, to help shield the country from future attacks. But at the same time, administration officials admitted that Padilla's harsh treatment and his forced confession would probably make it impossible to ever bring criminal charges against him. In fact, until Padilla's November 2005 indictment, the administration did all it could to prevent Padilla from having his day in court.

When lawyers working on Padilla's behalf in New York and South Carolina appeared to be on the verge of winning favorable rulings, administration officials moved Padilla to a different jurisdiction, each time mooting the pending legal challenge and further insulating Padilla's plight from judicial oversight.

Now, his case is before US District Judge Marcia Cooke in Miami, and Padilla's appointed lawyers are working to defend their client in part by trying to put the government itself on trial.

"The government's interrogation strategies and isolation techniques with regard to Mr. Padilla during his incarceration at the brig are at the outer limits of civilized propriety," writes Michael Caruso, acting federal public defender, in a recent brief.

"The government concedes that Mr. Padilla's constitutional rights were knowingly and intentionally violated during his incarceration at the brig in order for various agencies to collect evidence against him," he writes. "It is also beyond dispute that the government used extreme interrogation and isolation strategies in this effort."

Federal prosecutors have responded by arguing that allegations concerning Padilla's treatment while in military custody are irrelevant to the narrow set of charges filed in the Miami federal court case.

"Padilla's position is a thinly veiled attempt to conduct a fishing expedition," writes Assistant US Attorney Russell Killinger in a brief.

The Miami charges are based on evidence obtained through investigative efforts independent of Padilla's military interrogation, and presumably in full compliance with constitutional and other safeguards of the criminal-justice system. This explains why the Miami indictment makes no mention of dirty bombs or any of the other more sensational allegations uncovered through Padilla's military interrogation.

But that may not be enough to insulate the government from scrutiny and possible sanctions. The judicial test, according to Supreme Court precedent, is whether the government's conduct is so outrageous that it violates fundamental fairness and is "shocking to the universal sense of justice."

"It is a well-established principle of the criminal law that conduct which 'shocks the conscience' can be sanctioned by dismissal of the charges," says Joseph Margulies, a professor at Northwestern University School of Law and author of "Guantánamo and the Abuse of Presidential Power." But such rulings are rare, he says.

Legal analysts say it is significantly more difficult to persuade a judge to authorize an inquiry or dismiss charges when there is no direct connection between the alleged abuse and the evidence being offered at trial. For example, if federal prosecutors try to introduce evidence from the military interrogation to beef up their indictment in Miami, that action would clearly open the door for extensive scrutiny of Padilla's treatment by the military, they say.

In addition, judicial approval of the use of evidence from Padilla's military interrogation for use by prosecutors in the criminal trial would raise a red flag, says Cato's Lynch. "Then we would have a precedent that says that military interrogators can do things to Americans that law-enforcement and FBI agents cannot," he says.

The more probable course, Lynch says, is that the judge in Miami will avoid the military-detention issue. "So long as it proceeds as a fairly ordinary criminal case, I think the judge is going to keep the focus on the criminal charges and is not going to let issues involving military custody seep in."