Final Padilla Pitch Fails

Jose Padilla U.S. Court, Justice AP / CBS

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

You should not have been terribly surprised to learn Tuesday that former "dirty bomb" suspect Jose Padilla received a sentence of only 17 years and four months for his role in a South Florida terror conspiracy. The evidence against Padilla was paltry, at best, and certainly did not support the life sentence (or even the 30-year sentence) that government officials had been pitching.

Indeed, the story of Padilla's long and arduous journey from legendary dirty bomber (circa 2002) to run-of-the-mail terror trainee (circa 2008) is a story about wild pitches by the government. First, we were told by the tribunes of the powerful that Padilla was the "dirty bomber" intent upon scattering radiological doom upon crowded urban areas. Then, we were told that President Bush had designated Padilla as an "enemy combatant" whose information about Al Qaeda could only be gleaned by interrogation tactics the legality of which we still seek to determine.

Then, Padilla morphed into a beneficiary of the government's first major defeat in the legal war on terrorism. When Yaser Esam Hamdi, the first so-called "enemy combatant," won an astounding victory before the U.S. Supreme Court in 2004, the ruling immediately benefited Padilla, the second so-called "enemy combatant." It was harder for the government to justify its treatment of Padilla, a U.S. citizen apprehended at O'Hare Airport, when that treatment had been rejected for Hamdi, a foreign-born fighter captured overseas. Padilla began to win in court.

And then, when forced after years to choose between releasing Padilla or charging him with a crime-a right to which every citizen is guaranteed days after arrest-- the government tossed another one high and outside. Suddenly, in 2005, after unnamed officials began to go public with their doubts about the "dirty bomb" part of Padilla's past (other than that, Mrs. Lincoln, how was the play?), the government officially dropped that allegation from its litany of charges against Padilla and shipped him out of military custody and to South Florida, of all places.

There, his status was reduced by fiat (and the truth) from top-shelf evil terrorist-- on a par with the guy who tried to light a shoe bomb-to mere terror soldier who by design or happenstance never got to fight a single battle. Apparently, and with nothing else to do, Padilla even managed during the schizophrenic handling of his detention to try to change the pronunciation of his name-twice. First it was Padilla (rhymes with tortilla). Then it was Padilla with the two "ls" pronounced (like flotilla). Then it was back to Padilla, the tortilla.

This chasm between the promise of what Padilla was supposed to be-dazed cable executives allowed then-Attorney General John Ashcroft to proclaim from Russia that Padilla had been arrested in Chicago-- and what he turned out to be-a terror punk-- was on display all through Padilla's trial. Of course, jurors knew that the Padilla before them was really the Padilla who had been on the front page of all those newspapers and magazines. And so when it came time to judge him, they judged him (for a few hours after a months-long trial) upon what he was and not upon what he did.

And the government? When it had evidence that was material and relevant to Padilla's defense-like the now-destroyed CIA interrogation videotapes-it asserted "national security." It is no coincidence that the CIA tapes were purportedly destroyed at the same time (November 2005) that the government decided to prosecute Padilla in our civilian courts. For reasons good and bad, the feds didn't want the "interrogation techniques" scrutinized by a public and a judge and jury now attuned to what "torture" and "water-boarding" really mean.

That brings us today to Padilla's sentence. U.S. District Judge Marcia G. Cooke, a Bush appointee, was never fooled by several seasons' worth of curve balls thrown her way by federal authorities. Years ago, she tossed out the terror conspiracy charges against Padilla, arguing that there wasn't enough evidence to support them. Though she ultimately was overturned upon appeal, Judge Cooke clearly factored into her sentencing evaluation of the strength of the case against Padilla.

And she also gave him time off for the years he had spent in jail-military and otherwise-blowing off the final (and perhaps most galling) legal pitch by the feds. After subjecting Padilla to "interrogation," after depriving him of the right to see a lawyer or to have charges speedily brought against him, after ensuring that he would never get a fair trial in the United States, the government asked the judge to discount the five years Padilla already has spent in custody.

In the end, in January 2008, nearly six years after we saw that infamous Ashcroft Show, this is all the government could say about Padilla. From today's Justice Department press release: "The jury found that Padilla traveled overseas to receive violent jihad training and to fight violent jihad, which would (emphasis added) include acts of murder, kidnapping and maiming, from October 1993 to November 2001. On July 24, 2000, Padilla filled out a "Mujahideen Data Form" in preparation for violent jihad training in Afghanistan."

Woulda, coulda, shoulda. Some day, when scholars and historians write the book about the legal war on terror in the decade following September 11, 2001, Jose Padilla will get and obviously deserves his own chapter. Unfortunately, for him and for us, it's for all the wrong reasons.
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