Phone Forensics In The Padilla Case

Attorney Andrew Cohen analyzes legal issues for CBS News and

Jose Padilla, the terror suspect once introduced to the world as the "dirty bomber" by Attorney General-turned-carnival barker John Ashcroft, probably won't see his relatively scrawny criminal trial begin on time later this month. His lawyers are still fighting with prosecutors over whether Padilla was tortured while he was an "enemy combatant" held in U.S. custody — the judge has yet to rule. Just last week, that judge gave prison officials another week to complete a mental examination of the defendant to determine whether he is competent to stand trial.

But I'm not sure that federal prosecutors ought to be in any great rush to finally air to a jury their narrowed case against the U.S. citizen who became a gang member and then allegedly an Islamic extremist. Each week, it seems, we learn more and more about the ongoing case — and the more we learn the less inspiring that case seems to be. Last week, for example, The New York Times offered a long, front-page look at the transcripts of secretly recorded telephone conversations involving Padilla and his confederates — conversations that had been tapped long before the terror attacks on America.

Of the 230 taped (and tapped) telephone conversations that "form the core of the government's case," reported the Times' Deborah Sontag, only 21 "make reference to Padilla," and his voice is heard on only seven of the calls. In none of them, she reports, is Padilla heard to "discuss violent plots." The government will no doubt argue that terror conspirators in this modern age are too smart to make explicit threats that can be electronically monitored. But there still has to be a "there" there to the case against Padilla — and so far it does not seem apparent.

From court documents and Sontag's summary, we learn that Exhibit A in the case against Padilla likely will be a pre-9/11 "application" he allegedly submitted, using an alias, to one of the terror training camps in Afghanistan. The feds then will try to link that document to Padilla's contact with other suspected terrorists and contend that the whole lot of them were involved, to some extent, in plotting a terror attack in America. Linking Padilla to those other, more sinister, suspects is where the telephone records come into play.

According to the Times, in one telephone call Padilla told an Islamic buddy "that he has found himself an 18-year-old Egyptian bride who is willing to wear a veil." In another conversation, Sontag recounts, the man who for a short while was the nation's "face of terror" talked about a dream of a "man in a turban, surrounded by the swirling dust of a desert." This is hardly the stuff of sinister business, especially when you consider the burden of proof the government will have to survive in order to prevail in its case against Padilla.

There are three other snippets of conversations, however, which apparently could be seen by reasonable jurors as suggestive of criminal intent. In one, when asked if he is "ready" (for what we are not told), he reportedly says, "God willing, brother, it's going to happen soon." Now that could sound like two terror conspirators talking. Or it could sound like two fraternity boys about to go out on a Friday night. In another, Sontag writes, Padilla says he wants some gear from his ex-wife "because there was a rumor here that the door was open somewhere." And in another he asks for a recommendation so he can be connected "with the good brothers, with the right faith." Upon these pebbles is built the American government's legal house against Padilla.

There are two other things worth mentioning as this endless case leads finally to some sort of conclusion. First, as Sontag reports, the "dirty bomb" charge that was prematurely laid upon Padilla by Ashcroft now has been transferred to a man named Binyam Mohamed — who, conveniently enough, is a non-citizen currently being held as a detainee at the Guantanamo Bay camp in Cuba. Unlike Padilla, Mohamed will likely not get rescued by the federal courts and thus be allowed to have the sorts of due process rights that Padilla will enjoy. The case against Mohamed thus will never face the sort of scrutiny the Padilla case already has faced.

The other thing to remember about Padilla is that for years and years his attorneys fought — nearly to the United States Supreme Court - just to get him to this place in the legal system. For years and years he was held incommunicado and without the right to talk to his own attorneys, as a designated "enemy combatant," a classification the feds fought bitterly to maintain. The government says this is because Padilla had value as an intelligence asset and could not simply be turned over to the civilian courts.

The government now says that Padilla admitted under interrogation that he had trained to undertake a terror mission in the United States. But because of the different rules governing the pre-trial treatment of "combatants" and "defendants," none of this so-called confession will make it into the Padilla trial. The feds thus will have to play the other cards they have been dealt — the less-than-scintillating tapped phone calls. That's why the actual Padilla trial will bear little resemblance to the one that Attorney General Ashcroft predicted nearly five years ago when he interrupted daytime programming to tell us all from Russia that Padilla had been apprehended.