Padilla Trial Won't Be Worth The Wait

We already know much of the truth of the story of Jose Padilla, the American who has waited nearly five years to get his day before the men and women of his jury – his fellow citizens if not exactly his peers. All that is left now is for those jurors and Padilla's judge in Miami to render their legal judgment upon his conduct; to try somehow to fit the square sides of federal conspiracy and terrorism law around the shaky circle of this wretched man's life.

This is not a simplified assessment of all that has come before and all that is likely to come now in this sorry case. It's simply a statement of fact. We may learn a few niggling details about Padilla and his fellow travelers that we don't today know. And we certainly will learn more about the way in which Padilla was treated by our military custodians after he was deemed an "enemy combatant" by President George W. Bush. But the core narrative here about Padilla will be mostly the same after the trial as it is on the eve of today's opening statements.

For example, we know that Padilla is not what our government initially proclaimed he was – a "dirty bomb" plotter. We know this from the government's own official story, grudgingly and belatedly released to the rest of us after intelligence and law enforcement officials privately had begun to question Padilla's stature, intent and ability to detonate a radiological device in an American city. We know this, too, because the terror conspiracy and support charges which Padilla now faces do not include any sort of A-List "weapon of mass destruction" charge.

Many Americans, and indeed some of Padilla's prospective jurors, seem to have missed this important change in the story line. Nearly a half-decade later, they still perceive him as then-Attorney General John Ashcroft sought desperately (and successfully) to have him perceived – as an imminent threat to thousands and thousands of his fellow city-dwelling people. Remember, in the summer of 2002, when Padilla was arrested at O'Hare Airport, there was not yet a rich history of federal exaggeration and over-hype in terror cases. There weren't many grains of salt to be found when high-ranking officials told us that the capture of a terror suspect had yet again prevented the sky from falling.

So, as opening statements begin, one of the most vital challenges for Team Padilla will be to render their client's image from the realm of monster into the realm of the mere criminal suspect; to try to turn him into an ordinary defendant. If Padilla's lawyers can accomplish this trick, and they began the process during jury selection, their client may have a chance to escape the worst of his possible fates. In other words, if Padilla truly is judged solely upon the evidence against him and not upon his reputation or upon the perception people have of him as being a menace to America, it could be a close case.

That's because of another truth about Padilla that has emerged before trial. We know that Padilla talked with his co-defendants, and that the conversations were in some instances taped, and that portions of seven such taped conversations likely will be played for jurors. This evidence, the government claims, proves that Padilla was conspiring with the men to engage in a criminal act. But the actual language used by Padilla of these conversations, we already know from pre-trial disclosures, is not exactly the sort of "smoking gun" chatter that is likely to lead jurors inexorably to convict Padilla. If anything, the conversations jurors will hear make Padilla out to be a hesitant and skeptical recipient of suspicious-sounding chatter from his buddies.

And so, for prosecutors during opening statements the mission will be to try to offer as much context and perspective about these conversations as U.S. District judge Marcia G. Cooke will allow (she refused to allow into evidence Padilla's so-called "confession" because, she ruled, it was obtained through extraordinary interrogation methods). They will tell jurors that where there is smoke there is fire; that Padilla was up to no good when he was conversing with these other unhappy fellows and that, given the history of Padilla's life, he was a terrorist-in-training, a willing volunteer to wage whatever sort of jihad these guys were planning against U.S. targets here and abroad.

The feds will tell jurors, for example, that Padilla filled out a "terror camp" application before the terror attacks of September 11, 2001. Then they will try to convince the panel that Padilla's vague comments on those audiotapes are not a sign of his lack of criminal intent but rather his purposeful way of communicating in a code designed by the suspects to protect their true intentions. In other words, the feds have to gloss into the realm of the sinister conversations which otherwise may appear to jurors to be just plain odd. And if they can immerse this trial in scary terror talk, and push jurors toward viewing Padilla's conduct through that ominous sheen, they won't need a terribly strong case to push jurors into a conviction.

The government says that even if Padilla isn't a "dirty bomb" suspect he is still a bad enough guy, with enough criminal intent, to warrant convicting him as a terrorist and sending him to prison. Padilla and his lawyers say that he is neither a "dirty bomb" suspect, nor a terror conspirator, but rather a troubled guy who ran with the wrong crowd for too long. This trial is about where jurors can and will come down on that sliding scale of perceptions. After nearly five years of stops and starts, fits and fiddles, and one constitutional question after another, it's about time this process moved forward toward such a definite resolution. I would imagine that both sides already agree about that.