"Dirty Bomber" Finally Charged ... With Conspiracy to Kidnap and Murder

Jose Padilla, the American citizen who, in contravention of the Fifth Amendment, has been detained as an "enemy combatant" without being charged for more than three years, has finally been indicted by a federal grand jury in Miami, on charges of conspiring to "murder, kidnap and maim" people overseas.

Those with long memories might recall that this charge is a far cry from what then-attorney general John Ashcroft, citing "multiple independent and corroborating sources," claimed at a dramatic press conference live from Moscow in the summer of 2002.

We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb."

And it's important to note that Padilla is only getting his long-overdue transfer to the American judicial system because of pressure from the courts -- the Bush Administration was facing a Nov. 28 deadline to file a response to Padilla's legal challenge to define how long an American enemy combatant could be held without charge. Recall then-deputy secretary of state Paul Wolfowitz's ideas about Padilla from three years ago:

Enemy combatants, whether they are American citizens or not American citizens, are subject to the same provisions of the laws of war. You can hold an enemy combatant until the end of the conflict.

And, as Mike Lynch pointed out in these pages back in June 2002, "If the administration had its way, we'd never have heard of Padilla and his alleged plans to construct a dirty bomb."

Jacob Sullum's past takes on the Padilla case here and here.

UPDATE: You can read the indictment [PDF file] here.

Comments

henry | November 22, 2005, 12:56pm | #

For THIS we are suppose to throw the Grit Writ into the fucking fire? Unbelievable!

You fail to mention the latter (apparently bogus) allegations that Padilla was supposedly looking to blow up US apartment complexes--more horseshit, apparently.

The truly amazing part is that given the extremely high profile of this case, Mr. Padilla is undoubtedly one if the most higly investigated persons in US history. BushCo hung their case for gutting the Constitution on demonizing this clown and this is the best they can come up with--fucking amazing.

Hmmm...I wonder if Alberto "the Torturer" Gonzalez is trying to moot out a Supreme Court appeal of the Fourth Circuit's most recent pro-government decision in this case. He knows there is already one anti-Administration-position vote waiting for them up there: that flaming liberal, Antonin Scalia.

thoreau | November 22, 2005, 1:00pm | #

henry-

Ah, but, you see, the other allegations are also true, only the evidence is so top secret that bringing it out in a free trial would lead to our immediate defeat in the War on Terror. So those evil liberals have tied our government's hands and this lesser indictment is just their attempt to make the best of a bad situation.

How do I know about this secret evidence? Well, they said that he's guilty but they can't tell us all of the evidence. And since they would never lie to us, we must believe them.

Right?

JDM | November 22, 2005, 1:03pm | #

"Those with long memories might recall that this charge is a far cry from what then-attorney general John Ashcroft, citing "multiple independent and corroborating sources," claimed at a dramatic press conference live from Moscow in the summer of 2002."

In other news, Al Capone was jailed on some kind of bogus tax evasion charges. They call that justice? I thought he was supposed to be some sort of super-criminal.

henry | November 22, 2005, 1:08pm | #

In other other news:

Amazingly, the Republic survived recognizing Mr. Capone's right to Habeas Corpus, notwithstanding his status as super-criminal FAR more dangerous than some failed gang member.

JDM | November 22, 2005, 1:11pm | #

"Amazingly, the Republic survived recognizing Mr. Capone's right to Habeas Corpus"

Which has nothing to do with the charges actually filed against him.

The inability to gather enough evidence to prosecute on the original charges to the satisfaction of a criminal court is one of the arguments used by the administration *for* the suspension of habeus corpus.

Adam | November 22, 2005, 1:27pm | #

JDM - right - "we can't make any real bar of evidence, so SCOTUS needs to allow us to keep this bastard behind bars!"

ya know........."faith-based" prosecution/conviction.

TallDave | November 22, 2005, 1:31pm | #

It's a difficult issue. On the one hand, wanting to kill people isn't a crime. On the other hand, I don't want to be killed, and there's a high likelihood he would have killed people, perhaps even me as I lived not far away from where he did.

I'm inclined to favor this kind of thing, though I think more transparency is in order. It's hard to argue Padilla is an innocent lambikins who is beng unjustly persecuted.

thoreau | November 22, 2005, 1:35pm | #

TallDave-

Padilla is probably guilty of conspiracy to murder. Our courts handle dangerous guys every day.

Eric the .5b | November 22, 2005, 1:42pm | #

Thank goodness he's been actually, you know, charged.

Now, I wonder whether the prosecution is going to argue that he was planning to build a "dirty bomb" to use overseas. That would be interesting.

Jeff | November 22, 2005, 1:56pm | #

Bottom line, the founders could have never imagined that the nation would ever be faced with crimes as serious as murder and kidnapping. Had they known of such evil back in those simpler times, a lot of the bullshit in the Constitution just would not be there. Also, back then, people could not imagine that the Republic could be confronted by hostile governments and free agents intent on America's destruction. Sure, the United States was a weakling upstart, bordered by hostile natives and the colonies and military bases of the Great Powers of the time, and sure the country's very existence was threatened almost constantly, and, of course, foreigners could take our ships and sailors at will, and yes, the capital was burned to the ground by an invading army only a couple of decades after the Constitution was signed, but it was different then. The bad guys were not Muslim, for one thing.

quasibill | November 22, 2005, 1:58pm | #

"The inability to gather enough evidence to prosecute on the original charges to the satisfaction of a criminal court"

It's amazing how many people have this Perry Mason type view of the modern american criminal court. The whole enterprise is skewed towards the prosecution. People are convicted on the highly dubious testimony of single witnesses (i.e. jailhouse snitch who is getting a reduced sentence in return for his testimony) every day in this country. Very little evidence is ever excluded - there are a million and a half exceptions to every rule, including hearsay. What evidence that is excluded is excluded generally because it is truly irrelevant other than as an appeal to emotion.

Then add the fact that most judges have a career history as a prosecutor, and the political reality that you, as a judge, will only get bad press if you butt heads with the local prosecutor, as well as the political reality that cops are the most vocal special interest in judge elections and appointments, and there really is no meaningful bar to prosecuting any valid suspect in criminal court. It's just a fiction that's been promulgated by whiners.

MP | November 22, 2005, 2:09pm | #

Why is it easier to indict a ham sandwich than to indict Mr. Padilla?

Pro Libertate | November 22, 2005, 2:14pm | #

1. Gather evidence,
2. Arrest and detain for a short time, then
3. Try, and
4. Convict or acquit.

Not so tough, is it? Padilla is a U.S. citizen and is due the rights that come with that honorable title. We've got child molesters and serial killers whose due process rights seem above question, why isn't that true for another variety (assuming he's guilty of something heinous) scumbag? And if it's okay to say that "terrorists" don't get due process, why can't we say the same about drug dealers or other criminals that we really don't like?

Also, if the guy was plotting to blow up something, how is that so impossible to prove? Frankly, this whole issue smacks more of government's lust for secrecy than of any inability to effectively prosecute the case.

Phil | November 22, 2005, 2:16pm | #

On the other hand, I don't want to be killed, and there's a high likelihood he would have killed people, perhaps even me as I lived not far away from where he did.

Er . . . on what basis are we calculating the phrase "high likelihood" here?

thoreau | November 22, 2005, 2:34pm | #

I'm pleasantly surprised by the comments I've seen thus far. Nobody seems adverse to making the government prove beyond a reasonable doubt the allegations that it made against a US citizen.

Not too long ago, that would have been a controversial notion on this forum. I guess that we've managed to purge the heretics, and all we have now are real libertarians! :)

Johnny | November 22, 2005, 2:39pm | #

The only argument presented up to now by the .gov concerning Padilla has been to "appeal" to authority. Traditionaly this is considered a logical fallacy.

If the founders of this nation had meant for us to believe our leaders in reference to "appeal to authority", without additional proof, then why didn't they believe it when King G and the Parliments said what they were doing to the colonies were good for them?

Why did they pass the "bill of rights", why have juries to begin with?

Why HC at all? Could it be that they had a slight philosophical problem with arguments that rested exclusively on the "appeal to authority"?

As towards the question of whether or not Mr. P had any desire to hurt anyone...I have heard assertions, but no facts. Without facts all I know, is that some politicians want me to believe that Mr. P is a danger to me.

But that is the only "fact" I have. And I just don't trust the .gov, or any politician, Clinton or Bush, to accept that "fact" without question.

Pro Libertate | November 22, 2005, 2:49pm | #

For Gaius, I have a Roman Empire analogy: St. Paul, as a Roman citizen, was allowed the honor of being beheaded instead of facing the more ignoble fate of crucifixion. Now that's respect for due process. If the Romans could afford to do it with all of their rebellious subjects, why can't we?

"Crucifixion?" "Yes." "Good."

Viking Moose | November 22, 2005, 2:56pm | #

that does it thoreau.
i'm canceling my subscription.

hope Mrs. Thoreau is doing better. sorry for the tribulations to commence this silly season 2005.

kind regards

BG | November 22, 2005, 3:14pm | #

"Enemy combatants, whether they are American citizens or not American citizens, are subject to the same provisions of the laws of war. You can hold an enemy combatant until the end of the conflict."

Which raises the question of:

1) What constitutes an "enemy combatant" in this conflict?

and

2) What would constitute the end of this conflict?

The answers which I have heard seem to be almost reducible to "trust us to do the right thing"

I am relieved to see that the government cannot get around due process requirements by merely alleging someone to be a terrorist. Maybe we are not on a slow decline towards giving the government any power it wants under the pretense of fighting terrorism after all.

David C. | November 22, 2005, 5:42pm | #

"As towards the question of whether or not Mr. P had any desire to hurt anyone...I have heard assertions, but no facts. Without facts all I know, is that some politicians want me to believe that Mr. P is a danger to me.

But that is the only "fact" I have. And I just don't trust the .gov, or any politician, Clinton or Bush, to accept that "fact" without question."

I don't trust the government either. But I'm willing to give them the benefit of the doubt when they say they have evidence that Padilla is dangerous and was plotting something. It's unlikely that they just arrested him for the hell of it. But on the other hand, since he's a U.S. citizen, holding him without trial was blatantly unconstitutional. I don't recall any provision in the constitution that allows the executive branch to label a citizen an "enemy combatant" and thereby deprive him of his right to due process.It's nice that they finally got around to charging him with something, which should have been done when he was originally arrested.

Too bad there doesn't seem to be any way to prevent the government from using this tactic again though.

Dave | November 22, 2005, 6:50pm | #

BG-
You've hit the nail on the head, but I'm not sure what the alternative should be. Are terrorists to be held for the duration of the conflict? Hopefully. What if that conflict goes on forever? Well I guess it's too bad they chose to fight for an organization that has yet to declare surrender. I don't think we sent our German and Japanese POW's back to WWII's battlefields before the governments who sent them there were no more. There was no danger that a German POW shipped back to the fatherland in 1946 was going to organize a tank battalion against the Allied occupiers. There is a very good chance that an Islamist arrested while planning terrorist attacks against non-Islamists will go back to doing the same thing as soon as he's back in Pakistan/Saudi Arabia/Syria, etc. The fact that we're not sure when this is going to be over doesn't mean that it's ok for him to go.
The fact that Padilla is an American citizen adds another layer to the argument, but if the charges against him are true, he joined an organization which exists to make war on America and those like us (and he did so much more freely than many of those WWII POW's). Now, if you're asking the question of how do we define "enemy combatant" as a serious attempt to set parameters for that term beyond "Trust us", I think it's a step in the right direction. However, if those questions are to be asked rhetorically as a lead-in to the idea that those who are making war upon us are to be tried by the same standards as street crime, I would suggest that you realize this is a war, and you don't get to decide if you're at war or not. The Islamist enemy is at war with us, therefore we are at war. We didn't hold a trial to determine if every Nazi soldier had actually taken aim at an American and pulled the trigger, and we shouldn't do so now with an enemy who doesn't wear a uniform and makes this country the battlefield. I find that option even worse than trusting a government I have little faith in, but I've yet to see option number 3.

thoreau | November 22, 2005, 7:30pm | #

but if the charges against him are true

That's an important "if." We need a way to figure out whether or not the part after the "if" is true.

James Madison, a man who had seen war on US soil, seemed to have some opinions on the matter. He was even kind enough to share his opinions with us, by playing a key role in the drafting of some rather significant legal documents. Some of those legal documents are still in effect today, unless some activist judges overturned them.

Ken Shultz | November 22, 2005, 8:39pm | #

In other news, Al Capone was jailed on some kind of bogus tax evasion charges. They call that justice? I thought he was supposed to be some sort of super-criminal.

Al Capone convicted on tax evasion charges; an American citizen held for three years without charge, much less a trial. ...Six of one, half a dozen of the other?

Ha!

Nobody seems adverse to making the government prove beyond a reasonable doubt the allegations that it made against a US citizen. Not too long ago, that would have been a controversial notion on this forum.

I remember those heady days!

thoreau | November 22, 2005, 9:18pm | #

I remember those heady days!

Sadly, I think we chased them away.

A couple months ago I prepared an essay posing a question regarding the Padilla case. I'll wait for another Padilla thread where more of the "objectively pro-gulag" types show up.

And now I see why some people love the "objectively pro [insert bad thing here]" phrase. It's fun to use!

Dave W. | November 22, 2005, 10:41pm | #

Padilla is probably guilty of conspiracy to murder.

In keeping with the tone of your other comments, T., don't forget that conspiracy can be a pretty marginal, fuzzy crime in and of itself. It basically means (if true) that Padilla talked too much about killing people. Sometimes talking about killing people means you are really going to do it. Other times it is just talking. Entrapment is also easier in this context because of the pre-bloodshed timeframe.

I am not saying that conspiracy should be written out of the criminal law, but what I am saying is that even if Padilla is genuinely indictment-worthy wrt conspiracy, that doesn't mean he was a dangerous terrorist or that he was likely to actually hurt anybody.

I'd feel more afraid of Padilla if they had managed an explosives indictment, or at least a weapons indictment.

thoreau | November 22, 2005, 11:03pm | #

I concur, Dave W.

James Anderson Merritt | November 23, 2005, 1:15am | #

"...on charges of conspiring to 'murder, kidnap and maim' people overseas."

I don't know about everyone else, but I was amazed that we actually have laws that prevent people from making plans to kill foreigners on foreign soil.

If the fellow's plans never actually resulted in killing anyone, wouldn't a law against the conspiracy amount to abridgment of freedom of speech, freedom of association, and the right to privacy? And if the plans DID result in someone's death overseas, wouldn't the conspiracy still be a non-crime? The murdering and maiming would be the actual crimes, committed in a foreign nation and subject to that nation's justice exclusively.

Still, given that the law is apparently on our books:

As it has been alleged that the plans for the Iraq War were made long before the congressional authorization to use force was granted, wouldn't those self-same plans make any number of neocons and members of the current administration guilty of the same crime that they are now ascribing to Mr. Padilla?

Pro Libertate | November 23, 2005, 9:54am | #

It sounds like the government is charging him under 18 U.S.C. §956. I think the relevant provision is as follows:
. . .(b) Whoever, within the jurisdiction of the United States, conspires with one or more persons, regardless of where such other person or persons are located, to damage or destroy specific property situated within a foreign country and belonging to a foreign government or to any political subdivision thereof with which the United States is at peace, or any railroad, canal, bridge, airport, airfield, or other public utility, public conveyance, or public structure, or any religious, educational, or cultural property so situated, shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be imprisoned not more than 25 years.
As you can see from the text, one of the keys to getting a conspiracy conviction is proving that one or more conspirators took a "substantial step" towards committing the crime they conspired to commit. So, if Jose, Osama, and Big Ed talked about blowing up the Eiffel Tower, then Big Ed went and bought 50 pounds of plastic explosive at a Wal-Mart in Evanston, you've got a case.

The bad part for the government is that conspiracy is always tougher to prove when the underlying crime was never committed (or the step towards its commission wasn't particularly substantial--e.g., Big Ed walked through the high-explosives section at Wal-Mart after buying some toothpaste).

JDM | November 23, 2005, 11:06am | #

"Al Capone convicted on tax evasion charges; an American citizen held for three years without charge, much less a trial. ...Six of one, half a dozen of the other?"

That's really not what I'm saying at all. The particular charges filed have nothing important to say about the violation of habeus corpus, is my point.

James Anderson Merritt | November 23, 2005, 12:13pm | #

ProLiberate said, "It sounds like the government is charging him under 18 U.S.C. §956. I think the relevant provision is as follows:..."

I see nothing there that talks about "murdering, maiming, or kidnapping." How ironic if our thoughtful law protected the property and infrastructure of foreign GOVERNMENTS, but not their PEOPLE. I think I'll go look at the indictment now,

James Anderson Merritt | November 23, 2005, 12:30pm | #

OK, I saw the indictment. The law does talk about "murdering, maiming, or kidnapping" on foreign soil, and does criminalize conspiracy to commit such acts -- yet another expansion of federal jurisdiction over criminal law. The ostensible "good purpose" of this particular law is that it establishes as illegal the use of US addresses as bases of terrorist activity (such as conspiracies to murder, etc.).

I guess the reason that we don't haul the neocons into court on similar charges is because they committed their acts of conspiracy BEFORE the present law was enacted. Gotta have that due process and avoid ex-post-facto prosecutions, don't we?

Pro Libertate | November 23, 2005, 1:09pm | #

James Anderson Merritt, I hadn't seen the indictment, so I was just guessing. There is some anti-terrorism law that mentions killing, maiming, and kidnapping (18 U.S.C. s. 2332b)--maybe that's the underlying crime for the conspiracy charge? I haven't really done any research on this, so you probably know more than I do having read the indictment. What were the specific statutes he's been charged under, anyway?

Pro Libertate | November 23, 2005, 1:19pm | #

Oops, I meant to post the first part of 18 U.S.C. §956, which talks about murder and maiming:
(a)
(1) Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2).
(2) The punishment for an offense under subsection (a)(1) of this section is--
  (A) imprisonment for any term of years or for life if the offense is conspiracy to murder or kidnap; and
  (B) imprisonment for not more than 35 years if the offense is conspiracy to maim.
Should've posted the whole statute, since my guess about which part he was charged under was wrong.

James Anderson Merritt | November 23, 2005, 11:34pm | #

ProL: Here are the code citations...

18 USC 956(a)(1) [murder, maiming, kidnapping]
18 USC 371 [conspiracy to commit offense, defraud US]
18 USC 2339A [providing support to foreign terrorists]
18 USC 922(g)(5)(B) [felon, etc., acquiring firearms via interstate commerce]
18 USC 1001(a) [lying to the federal government]
18 USC 1621(1) [lying under oath to federal gov]
18 USC 1505 [obstruction of justice]
18 USC 924(d)(1) [firearms forfeiture]
18 USC 2 [defining "princpals" in criminal acts]
21 USC 853 [penalties for illegal firearms traffic]

spurwing plover | November 24, 2005, 9:58pm | #

So how long did it take them to finaly bring charges against him? who was dragging their feet?