Padilla Case Shows Abuse Of Power

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

(CBS) 
Now he can rely upon an impartial arbiter, a federal judge, to ensure that the proceedings are fair and that the government does not in the name of fighting the war on terror railroad an unpopular figure.

And now, Padilla can hope for a jury to review the evidence without fear or favor. All of these things, and many more due process rights, were denied to him during his long stint in legal limbo.

For years now Padilla’s lawyers have asked the government either to charge their guy or release him. Now they have their wish. The case against Padilla is neither a slam-dunk nor a sham. By linking Padilla to these lesser lights by lowering expectations, the feds hope that they will be able to capitalize on still-smoldering anger toward anyone remotely involved in, or accused of, terror activities. They hope that Padilla’s jurors will believe that where there is smoke, there is fire, and that these guys, as a group, were simply up to no good.

By contrast, Padilla’s lawyers will no doubt remind jurors of what the indictment doesn’t allege. It doesn’t allege that Padilla or his newly-connected buddies murdered anyone, here or anywhere else in the world. It doesn’t say that they even had come up with a specific plot to murder anyone. It alleges that Padilla filled out a terror training application form (seriously) and that he and his alleged co-conspirators talked in code. Upon this almost-comical foundation is based the government’s new case against a fellow once labeled as the new "face of terror."

Moreover, Padilla’s attorneys probably will be able to get some traction arguing that the government’s public statements about Padilla impermissibly tainted any conceivable jury pool, rendering a fair trial all but impossible. I can just see John Ashcroft now, in court in Miami, being asked to raise his right hand and testify about why he felt it was necessary to race onto television to warn the world about Padilla back in June 2002.

Prosecutors, meanwhile, will be able to rely upon an ever-broadening array of federal laws that make "material support for terrorism" a crime even when the alleged "supporter" doesn’t do much more than root from the sidelines.

Padilla may or may not be guilty of the crimes with which he has been charged or, for that matter, other crimes with which he has not been charged. But whether he is or he isn’t, the Administration’s public posture in his case has been scandalous. A U.S. citizen was captured while coming off a plane and detained for more than three years without fundamental constitutional rights.

He was accused of a particularly heinous crime, loudly and publicly, but never charged with one. And then, when the courts started to close in and seriously question his confinement, the executive branch did an about face and found a smaller case and a lesser cause and a less serious charge to indict him with.

You don’t have to be sympathetic to Padilla to acknowledge how dangerous a precedent that sets. You don’t have to be a lukewarm supporter of the government’s legal war on terror to comprehend how vulnerable that makes all of us. You don’t have to be a bleeding heart to be concerned that if it can happen once it can happen again and again and again.

Jose Padilla is a poster child all right. But he is not a poster child for home-bred jihadist terror. Instead, Padilla is a poster child for unrestrained executive branch power, exercised injudiciously, in a way that threatens us all.