Padilla Again

Yesterday, the major dailies reported a story on how Jose Padilla, the American citizen detained as an "enemy combatant, received 17 Years for "terrorism-related charges." The Washington Post called this "a major setback in a terrorism prosecution for the Justice Department." It is a major setback because prosecutors had been forced to drop the real terrorism charges - dirty bomb allegations, especially - and go for lower-level category of 'terrorism-related' criminal activities. It also mean the Justice Department had to drop its demand for life imprisonment. This is, in fact, a pattern in terrorism prosecutions, which I and others have documented (I did it here and on my formerly co-edited blog here; as have others here and here, and which an internal GAO audit even admitted.) The pattern is not limited to inflated statistics, but rather to a whole host of government actions. First, the DOJ makes a high profile arrest, holds a very public news conference, and perhaps links the arrest and pending prosecution to other 'terrorist cells' like those in 'Detroit, Seattle, and Buffalo' (all of which turned out to be far less than claimed.) Then the prosecution gets under way, and, because there is still due process for most alleged terrorists,* the government actually has to start proving its allegations. Once the truth comes out, and these alleged terrorists turn out to be a mix of cranks, isolated actors with half-baked plans, or just plain victims of entrapment, the government is forced to drop the most serious charges and prosecute, or strike deals, on lesser charges. It is only because of the radical expansion of those crimes considered 'terrorism-related' (such as visa fraud or other immigration and work violations, or fencing of stolen goods to foreign buyers), and in some cases the very low burden of proof and overbroad definition of terrorism activities - especially in the case of providing 'material-support for terrorism' - that so many of these cases still fall under 'terrorism-related convictions.' In many cases the government goes for a plea bargain because it knows it can't win its case. This, for instance, is what happened with Padilla's original case, in which he got 3 1/2 years. At this point, there is just no credibility to any of the government's terrorism-related prosecutions or broader claims. Every report on one of these cases should be read with a pound of salt.


*The Padilla case is more complicated because originally he was denied nearly every possible civi**l right as an 'enemy combatant.' It was only under threat of Supreme Court review that the administration started playing games and moved Padilla to civilian court - and had actually to start making a case against him.