A federal appeals court has reversed a trial judge's order that stripped the key terrorist conspiracy charge against accused al Qaeda operative Jose Padilla.
The ruling from the 11th Circuit Court of Appeals in Atlanta on Tuesday means Padilla could again face a life sentence if he is convicted on all counts by a jury at a trial due to start later this year in Miami.
The decision rejected the analysis by U.S. District Court Judge Marcia Cooke that the charge of conspiracy to murder, kidnap and maim persons in a foreign country was "multiplicitous" with two other charges levied against Padilla and his codefendants.
"While these three charges are interrelated, they are not interdependent," the appeals court wrote. Padilla is also under indictment for conspiracy to provide material support for terrorists and for providing material support for terrorists.
"A defendant could commit one act that satisfies the elements of two distinct offenses," the appeals court said.
The appeals court's ruling came quickly — less than three weeks after attorneys conducted oral arguments. The Padilla trial had been scheduled to begin with jury selection this month, but Judge Cooke has since delayed the trial until at least April 16.
The top terror conspiracy charge carries a potential life sentence. The other two charges carry a maximum of 15 years, according to the office of U.S. Attorney for the Southern District of Florida, Alex Acosta.
"We are gratified by the 11th Circuit's swift decision and look forward to presenting the evidence at trial," Acosta said in a written statement Tuesday.
The most pressing legal issue now is whether Padilla is mentally competent to stand trial. Two mental health experts for the defense who have examined Padilla have told the court he is unstable, incommunicative and suffering from post-traumatic stress disorder as a result of his 3 1/2 years locked up in isolation in a U.S. naval brig in South Carolina as an "enemy combatant."
The Bush administration gave Padilla that label — removing him from the criminal justice system to military custody — alleging in 2002 that the Brooklyn-born former gang member and Muslim convert had become an al Qaeda operative intent on either detonating a radioactive "dirty bomb" or blowing up apartment buildings with natural gas lines in the United States.
Those accusations do not exist in the pending case. Padilla was the fifth defendant added in November 2005 to an 11-count indictment depicting a North American "jihad" support cell in South Florida.
The most serious remaining allegation against Padilla is that after he moved to Egypt in 1998, he allegedly attended al Qaeda terror training camps in Afghanistan in 1999-2000. The government has offered a camp application form, recovered in Afghanistan, as evidence.
The indictment makes only a passing mention of al Qaeda, listing it as one of several groups pursuing "jihad" as part of a global "radical fundamentalist movement." There is only one reference to al Qaeda leader Osama bin Laden — a wiretapped phone conversation between two alleged conspirators saying in 2000 that Padilla had "entered the area of Osama."
Padilla and two co-defendants are in custody or in the United States, and one of them is free on bail. Two other defendants are at large. One of them allegedly fought with Muslim separatists in Kosovo.
The indictment alleges Padilla received money and camping gear from lead defendant Adham Amin Hassoun, who is charged in the eight other counts, one for gun possession and seven for perjury or making false statements.
Padilla, 36, was detained in May 2002 at Chicago's O'Hare Airport upon returning from Pakistan. He was first held as a material witness in the grand jury investigation of the Sept. 11, 2001 attacks before his open-ended transfer to military custody in June 2002.
Padilla's court-appointed federal defenders contend his tortuous treatment in the hands of the U.S. military amounted to "outrageous government conduct" warranting a dismissal of the criminal case. Judge Cooke has yet to rule on that motion. The Bureau of Prisons is expected to report its mental health assessment of Padilla next month.