Padilla
Jury Opens Pandora’s Box
By Paul Craig Roberts
21 August, 2007
Countercurrents.org
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). [http://www.washingtonpost.com/wp-dyn/content/
article/2007/08/16/AR2007081601009.html ] 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 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.” [http://www.iht.com/articles/ap/2007/06/19/america/
NA-GEN-US-Padilla-Terror-Charges.php ]
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). [ http://blog.washingtonpost.com/
benchconference/2007/08/post_46.html#more ]
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. [ http://www.alternet.org/story/59958/
]
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.
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