The NYT has a story detailing the evidence that will be used to prove that Jose Padilla engaged in a conspiracy to commit terrorism. From its description, the evidence against Padilla is very very thin. The NYT sort of evades the real issue when discussing the substantive evidence against Padilla:
His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Mr. Padilla without formal charges for three and a half years. Those claims came from the government’s overseas interrogations of terrorism suspects, like Abu Zubaydah, which, the government said, Mr. Padilla corroborated, in part, during his own questioning in a military brig in South Carolina.
But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy.
The word the NYT is too delicate to use, of course, is T-O-R-T-U-R-E (it does use the euphemism, "coercion"). Evidence collected using torture (either that of Abu Zubaydah, whom several accounts describe being waterboarded and beaten, or Padilla, whom accounts describe as being driven crazy with his treatment) is not admissible in a civilian court case and so, with SCOTUS preparing to rule that the government couldn't try Padilla in a military court, the government had to throw out its charges against Padilla.
That leaves a whole slew of wiretapped conversations as the primary evidence against Padilla. Yet even there, the evidence is very thin. Of hundreds of taped conversations, only 21 mention Padilla; he speaks on only seven of them. The three most ambiguous conversations the NYT reports speak of impending events.
In the first, Mr. Hassoun asked, “You’re ready, right?” and Mr. Padilla said, “God willing, brother, it’s going to happen soon.” That was the summer of 1997, a year before Mr. Padilla left South Florida for Egypt.
In the second, Mr. Padilla told Mr. Hassoun, during a 1999 conversation from Egypt, that he had asked his ex-wife in the United States to arrange for him to receive an army jacket, a book bag and a sleeping bag, supplies that he had requested because “there was a rumor here that the door was open somewhere.” In the third, Mr. Padilla told Mr. Hassoun in April 2000, that he would need a recommendation to “connect me with the good brothers, with the right faith” if he were to travel to Yemen.
And the rest seem to describe the spiritual journey that led him to get involved with Islamic fundamentalists.
Otherwise, the evidence seems to include a Gitmo detainee who implicated Padilla--under torture, he says.
“Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khaled Sheikh Mohammed,” Mr. Stafford Smith said, adding that his client “has no conscious knowledge that he ever met” Mr. Padilla.
And, two defendants named in connection with Sheikh Abdel Rahman in the 1990s (discovered while following the rules of FISA, I might add)--one of whom has never met Jose Padilla.
In the early 1990s, Sheikh Rahman’s telephone was tapped, and Mr. Hassoun and Dr. Jayyousi, a Jordanian-born American citizen who holds a doctorate in civil engineering, came to the government’s attention through phone calls to or from his line. Then the government, under the Foreign Intelligence Surveillance Act, began to eavesdrop on them, which eventually pulled Mr. Padilla into their net, too.
The government presents the three defendants as “joined at the hip,” as one prosecutor put it in a hearing last summer. But Judge Marcia G. Cooke of Federal District Court, noting that Mr. Padilla was appended to a case well under way, asked the government, “If they are so joined at the hip, why is Mr. Padilla so late to the dance?”
Dr. Jayyousi, a former school system administrator in both Detroit and Washington, D.C., never met Mr. Padilla, his lawyer, William Swor, said.
It is Mr. Hassoun, the government said, who recruited Mr. Padilla. But both Mr. Hassoun’s and Mr. Padilla’s lawyers deny that Mr. Padilla was recruited.
In other words, two of the three people with whom Padilla has been charged of conspiring claim to have never met him.
On the other hand, we have Scooter Libby. There is no doubt that he has met--and worked with--Dick Cheney and Karl Rove. Apparently under the influence of no coercion, Scooter Libby has admitted that Dick Cheney ordered him to leak something on July 8, 2003. According to a witness, he leaked Valerie Plame's identity on that day. Apparently under the influence of no coercion, Karl Rove testified that he had a conversation with Libby about the upcoming publication of an article about Valerie Plame.
On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House (“Official A”) who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson’s wife was discussed as a CIA employee involved in Wilson’s trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson’s wife.
Shortly after this conversation, Valerie Plame's identity was exposed to the world. Without use of torture, the government appears to have uncovered much more evidence of a conspiracy to out Plame's identity than they have against Padilla.
Don't get me wrong--I am not begrudging Scooter Libby his due process. Nor am I complaining about the burden of proof that prevented Libby, Cheney, and Rove from being indicted on conspiracy charges.I am not doubting that Padilla had some ties with Islamic extremists (though, I'd remind of CheneyCo's fondness for MEK, a terrorist group in its own right).
But I think the contrast is stark. We are a country that claims to believe in the rule of law. But a rich white man like Scooter Libby has been charged only with perjury--and his co-conspirators have not been charged at all. While a poor Latino Muslim has been held incommunicado for many years and charged for participating in a conspiracy with men he has never met.
As we begin to watch how our court system treats the privileged among us in the upcoming weeks, it is worthwhile to recognize that not all American citizens are receiving such treatment.