[NYTr] Padilla Conviction: A Grave Blow to the Constitution

[All the News That Doesn't Fit]

Counterpunch - Aug 20, 2007
http://www.counterpunch.org/roberts08202007.html

A Grave Blow to the Constitution

Padilla Jury Opens Pandora's Box

By PAUL CRAIG ROBERTS

Jose Padilla's conviction on terrorism charges on August 16 was a
victory, not for justice, but for the US Justice (sic) Department's
theory that a US citizen can be convicted, not because he committed a
terrorist act but for allegedly harboring aspirations to commit such an
act. By agreeing with the Justice (sic) Department's theory, the
incompetent Padilla Jury delivered a deadly blow to the rule of law and
opened Pandora's Box.

Anglo-American law is a human achievement 800 years in the making. Over
centuries law was transformed from a weapon in the hands of government
into a shield of the people from unaccountable power. The Padilla
Jury's verdict turned law back into a weapon.

The jury, of course, had no idea of what was at stake. It was a
patriotic jury that appeared in court with one row of jurors dressed in
red, one in white, and one in blue (Peter Whoriskey, Washington Post,
August 17, 2007). It was a jury primed to be psychologically and
emotionally manipulated by federal prosecutors desperate for a
conviction for which there was little, if any, supporting evidence. For
the jury, patriotism required that they strike a blow for America
against terrorism. No member of this jury was going to return home to
accusations of letting off a person who has been portrayed as a
terrorist in the US media for five years.

The "evidence" against Padilla consists of three items:

    (1) seven intercepted telephone conversations,

    (2) a 10-year old non-relevant video of Osama bin Laden, and

    (3) an alleged application to a mujahideen (not terrorist) training
camp with Padilla's fingerprints. We will examine each in turn. 

The International Herald Tribune and Associated Press reported in
detail on the telephone intercepts (June 19, 2007): "Accused al-Qaida
operative Jose Padilla was never overheard using purported code words
for violent jihad in intercepted telephone conversations and spoke
often about his difficulties in learning Arabic while studying in
Egypt, the lead FBI case agent testified Tuesday. The questioning of
FBI Agent James T. Kavanaugh by Padilla's attorney, Michael Caruso,
focused on seven intercepted telephone calls on which Padilla's voice
is heard mostly talking about his marriage and his studies but never
about Islamic extremism. . . . Caruso asked Kavanaugh if Padilla ever
was heard using what prosecutors say were code words for violent
jihad . . . 'No, he does not,' Kavanaugh replied. . . . Caruso asked
Kavanaugh if Padilla was ever overheard discussing jihad training. 'No
jihad training that I've seen,' Kavanaugh said. . . . 'He's not
referring to anything here but studying Arabic, correct? Study means
study, right?' Caruso asked. 'That's what they're talking about,'
Kavanaugh testified."

Despite the FBI's testimony that the intercepted telephone messages
contained no incriminating evidence, the "patriotic" jury accepted the
federal prosecutor's unsupported accusation that there were hidden code
words in the message indicating that Padilla was a terrorist. After
all, who but a terrorist would want to learn Arabic?

The video of bin Laden had no relevance whatsoever to the charges in
the case. The video is 10 years old and makes no reference to any of
the defendants. Moreover, none of the defendants were accused of ever
being in contact with bin Laden. The only purpose of the video was to
arouse in jurors fear, anger, and disturbing memories associated with
September 11, 2001. The fact that the judge let prosecutors sway a
fearful and vengeful patriotic jury with emotion and passion rather
than evidence is obviously grounds for appeal.

Whoriskey reports that in their closing arguments prosecutors mentioned
al-Qaeda more than 100 times and urged jurors to think of al-Qaeda and
groups alleged to be affiliated with it as an international murder
conspiracy. Padilla "trained to kill,' Assistant US Attorney Brian
Frazier misinformed the jury in his closing statement.

Who Padilla wished to kill was never identified, but according to the
prosecutors he had been wanting to kill persons unknown since 1998.
Padilla was convicted for harboring alleged intentions, not for
committing any acts. Indeed, no harmful acts are charged to Padilla.
The incompetent jury fell for the prosecutors' wild tale of a murder
conspiracy many years old that had no results.

As Andrew Cohen put it, Padilla and the two co-defendants were
convicted on the charge of "terrorist-wannabes" on the basis of
"evidence that federal authorities did not believe amounted to a crime
when it was gathered back before 2001." Cohen concludes: "it's further
proof that if you can convince an American jury that a man in the dock
had anything to do with al-Qaeda, you can pretty much bank on a
conviction no matter how tenuous the evidence" (washingtonpost.com,
August 16, 2007).

The training camp application form is as suspect as any evidence can be.

Moreover, the prosecution had no evidence that Padilla actually
attended such a camp. Padilla was held illegally for 3.5 years and
tortured. At any time during his illegal detention and torture, Padilla
could have been handed a form, thus tainting it with his fingerprints.

Amy Goodman, the forensic psychiatrist Dr. Angela Hegarty, the
Christian Science Monitor and others have described how US
interrogators abused Padilla and destroyed his mind. To expect a person
as badly tortured and abused as Padilla to retain the wits not to touch
a piece of paper handed to him, or forced into his hands, is
unreasonable. When Padilla was arrested five years ago in 2002, the US
government charged that he was about to set off a radioactive "dirty
bomb" in a US city that would kill tens or even hundreds of thousands
of Americans. The story was a total lie, a fabrication designed to keep
the fear level high after 9/11 in order to keep support for the Bush
regime's wars and domestic police state. None of the charges on which
Padilla was illegally held, during those years before the US Supreme
Court intervened and ordered the Bush regime to release Padilla or
bring him to trial, were part of the charges on which Padilla was tried.

There is little doubt that Padilla's conviction, and probably also the
convictions of the two co-defendants, is a terrible injustice. But the
damage done goes far beyond the damage to the defendants. What the red,
white, and blue "Padilla Jury" has done is to overthrow the US
Constitution and give us the rule of men.

The US Constitution and Anglo-American legal tradition prevent
indictments, much less convictions, based on a prosecutor's theory that
a person wanted to commit a crime in the past or might want to in the
future. Padilla has harmed no one. There is no evidence that he made an
agreement with any party to harm anyone whether for money or ideology
or any reason. The FBI testified that the telephone calls were
innocuous. The bin Laden video was evidence of nothing pertaining to
the defendants. The piece of paper, alleged to be a personnel form
recovered from an al-Qaeda camp in Afghanistan is nothing but a piece
of paper and an assertion.

As Lawrence Stratton and I demonstrated in our book, The Tyranny of
Good Intentions (2000), the protective features of law had been
seriously eroded prior to the Bush regime's assault on civil liberty in
the name of "the war on terror." The US Constitution and the Bill of
Rights rest on Blackstone's Commentaries on the Laws of England.
Blackstone explained law as the protective principles against tyranny
--habeas corpus, due process, attorney-client privilege, no crime
without intent, no retroactive law, no self-incrimination.

Jeremy Bentham claimed that these protective principles were outmoded
in a democracy in which the people controlled the government and no
longer had reasons to fear it. The problem with Blackstone's "Rights of
Englishmen," Bentham said, is that these civil liberties needlessly
limit the government's power and, thus, its ability to protect citizens
from crime. Bentham wanted to preempt criminal acts by arresting those
likely to commit crimes in advance, before the budding criminals
entered into a life of crime. Bentham, like the Bush regime, the
"Padilla Jury," and the Republican Federalist Society, did not
understand that when law becomes a weapon, liberty dies regardless of
the form of government. If they do understand, they prefer
unaccountable government power to individual liberty.

The incompetent "Padilla Jury" has done Americans and their liberty far
more damage than will ever be done by terrorists, other than those in
our criminal justice (sic) system who now wield the powers that Bentham
wanted to give them.

The Padilla case was the way the Bush Justice (sic) Department
implemented its strategy for taking away the legal principles that
protect American citizens. Padilla is an American citizen. He was
denied habeas corpus and his rights to an attorney and due process. He
was tortured in an attempt to coerce him into self-incrimination. In
treating Padilla in these ways, the US Department of Justice (sic)
violated both the US Constitution and federal law. There is no doubt
whatsoever that the Justice (sic) Department committed far more crimes
than did Padilla.

By the time the Supreme Court finally intervened, Padilla was
universally known as the demonized "dirty bomber," an "enemy combatant"
who was arrested before he could set off a radioactive bomb in a US
city. The Injustice Department could now simultaneously convict Padilla
and enshrine Benthamite law simply by appealing to fear and patriotism.
And that is what happened.

Under Benthamite law, the individual has no rights. The new calculus is
"the greatest good for the greatest number" as determined by the
wielders of power. On the basis of this new law, not written by
Congress but invented by the Injustice Department and made precedent by
the "Padilla Jury" verdict, the US can lock up people based on the
percentage of crime committed by their race, gender, income class, or
ethnic group.

Under Benthamite law, people can be arrested and prosecuted for thought
crimes. Under Benthamite law, it is the government that protects the
people, not the Constitution and Bill of Rights that protect the
individual. Benthamite law makes "advocacy speech," for example, a call
for the overthrow of the US government, upheld in the 1969 Supreme
Court decision, Brandenburg v. Ohio, a serious federal crime.

The "Padilla Jury" has opened Pandora's Box. Unless the conviction is
overturned on appeal, American liberty died in the "Padilla Jury's"
verdict.

[Paul Craig Roberts was Assistant Secretary of the Treasury in the
Reagan administration. He was Associate Editor of the Wall Street
Journal editorial page and Contributing Editor of National Review. He
is coauthor of The Tyranny of Good Intentions.He can be reached at:
PaulCraigRoberts at yahoo.com ]