Padilla Case Shows Abuse Of Power

Cohen: Government Has A Lot Of Explaining To Do, In And Out Of Court

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

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After all that, this:

Under deadline pressure from the United States Supreme Court, the Bush Administration Tuesday finally decided to allow a judge and jury to determine the fate of Jose Padilla, the young man to whom we were introduced three years ago by a former U.S. Attorney General as a "dirty bomber."

Only the government did not in the end charge Padilla with plotting to explode a radiological device in an urban core, as John Ashcroft once suggested in a dramatic news conference fed to stunned viewers via satellite from Russia. The feds did not allege that the young street punk was on his way to back to America — he was arrested at O’Hare airport in Chicago — to kill civilians here.

Instead, prosecutors bootstrapped charges against Padilla to an already-existing criminal case in Miami involving what one could reasonably call "run-of-the-mill" terror suspects.

The disconnect between what the government initially said about Padilla, and what it now believes it can prove against him, is so startling that it ought to provide a jump-off point for the aggressive defense Padilla is now likely to receive in federal court.

When as a government you start off calling a guy Mohammad Atta and you end up calling him John Walker Lindh, which is essentially the same distance between the "dirty bomb" Padilla and the "recruiting terrorists" Padilla, you have some explaining to do. Right now, the feds have a lot of explaining to do, both in and out of court.

For example, what happened to those dirty bomb allegations? If they were subsequently discredited what does that say about the other evidence against Padilla? And if Padilla were merely a terror trainer and supporter, as the indictment suggests, why did it take the feds so long to charge him? What was the point of waiting so long? The feds immediately charged Lindh, the so-called "American Taliban," even though he, unlike Padilla, was apprehended in Afghanistan.

About the only question regarding the charges that is easy to answer is: why now? Now, because the White House faced a Monday deadline to file a brief before the Supreme Court in an appeal by Padilla that did not look to be a winner for the feds. The Justices two years ago, in another "enemy combatant" case involving a fellow named Yaser Esam Hamdi, made it fairly clear that they would not countenance indefinite detentions like the one Padilla endured.

Faced with another legal setback, perhaps one that would cement into place unfavorable precedent in this area, the feds decided to go with Plan B.

Now Padilla is a regular criminal defendant entitled to all of the constitutional rights that any other criminal defendant would get in court. Now he and his lawyers can finally see, hear and read the evidence against him and evaluate it in the context of federal law and evidentiary standards.