Padilla: "The First American Terror Trial"

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
Jose Padilla, the terror suspect introduced to us five years ago as an American planning to kill a city's masses with a radiological bomb, has been incarcerated for so long without trial that he has had enough time to change the pronunciation of his last name—twice. A few years ago, when he was still being held incommunicado and without charges, Padillachanged it from Pa-DEE-ah to Pa-DILL-ah. And then last year, as a regular civilian defendant in our federal justice system, he changed it back, to Pa-DEE-ah.

No matter. Most of his potential jurors who are coming to federal court in Miami Monday are likely to know Padilla, however he happens to pronounce his name these days, as the "dirty-bomb guy," a shorthanded identification he has assumed ever since then-Attorney General John Ashcroft, in a startling mid-day press conference via satellite from Russia, dramatically announced that Padilla's arrest and the concomitant interruption of a "dirty bomb" plot. The government has long since dropped its initial bombshell of an accusation—never mind, our bad!—and Padilla is on trial nowmerely for providing "material support" to a terrorist organization and for being part of a criminal conspiracy to murder people abroad.

I use the word "merely" above not because the crimes with which Padilla now is charged are not serious. They are. Padilla and his two co-defendants (how would you like to be the two guys who have to go on trial with Padilla?) face life in prison without the possibility of parole if they are convicted on all counts. And, in fact, our federal prisons slowly are becoming warehouses for terror suspects just like Padilla and Company who ultimately either are convicted of, or plead guilty to visiting a terror training camp in the Mideast, training with and pleading support to terrorists, learning about jihad, and then coming back to the United States to try to convert the convertible to their heinous mission.

Sometimes these men are accused also of purchasing suspicious material— one guy in Ohio last week was arrested for, among other things, purchasing a "laser range finder" and a "night vision scope." Sometimes not. Sometimes there is overwhelming evidence of guilt. Sometimes not. It generally has not mattered much to U.S. judges or juries. In fact, among the myriad of battle fronts in the legal war on terror, our government has probably enjoyed its most success in cases just like the one that is headed our way down in Miami starting today.

There are three things that make Padilla's case different, of course, and we've already talked about one—his transformation, almost overnight, from the "new face of terror" (circa 2002) to plain, old terror wannabe (circa 2007). The second thing that makes it different is that Padilla's trial judge, U.S. District Judge Marcia Cooke already has demonstrated a certain degree of disdain for the government's evidence against Padilla; the type of disdain that has seen her recently reversed on appeal by the federal appeals court. Judge Cooke's perceptions are a boon to Padilla's chances at trial even if they are not so likely to secure his long-term satisfaction. At any rate, a feisty judge ought to make the Padilla trial particularly memorable even if she just a few weeks ago threw out a request by his lawyers to dismiss the charges.

And, finally, the third thing. You, the people. By my reckoning, the Padilla trial is the first true-blue American terror trial since the Twin Towers fell on September 11, 2001. The so-called "American Taliban"—John Walker Lindh—pleaded guilty in 2002 long before his trial. And Zacarias Moussaoui's circus-of-a-trial last year distracted from the fact that the zany French Moroccan was not a U.S. citizen. Starting today, for the first time, an American jury will sit in judgment on an American citizen in a high-profile case directly involving an allegation of terror. Will a jury of Padilla's "peers" be able to judge him upon the evidence and not the labels the government and the media once hung on him? Will the not-so-dirty bomb suspect get judged by jurors with clean minds? You tell me and then we'll both know.