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Padilla Case Shows Abuse Of Power

Attorney Andrew Cohen analyzes legal issues for CBS News and

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.

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.
By Andrew Cohen