Observer: Evidence against Padilla in terror support trial is 'thin'

MIAMI -- For a star defendant whose name is known around the world, Jose Padilla has become almost a bit player in his terrorism support trial -- and some observers say the federal government may not have proved its case against him.

Prosecutors rested their case Friday after nine weeks, 22 witnesses and dozens of FBI wiretap intercepts played at trial, most of them in Arabic with written translations for jurors. Defense lawyers for Padilla and his two co-defendants begin presenting their case next week.

Much is at stake for the government, which once heralded Padilla's arrest as a success in the country's war on terror, accused him in an al-Qaida "dirty bomb" plot, and held him for 3 1/2 years as an enemy combatant.

Padilla's voice was heard on only seven intercepts, a tiny fraction of the 300,000 collected by the FBI during the nearly decade-long investigation.

No links to specific acts

Padilla was never linked to any specific acts of terrorism or murder and, unlike his co-defendants, he was not accused of using purported code words like "tourism" for "jihad" or "eggplant" for "rocket-propelled grenade."

"Although everyone has been referring to this case as the Padilla trial, the government's case against Padilla has been pretty thin," said David O. Markus, a Miami defense attorney who has frequently written about the case on his legal blog. "I'm sure the government lawyers are sweating quite a bit right now."

Padilla, a 36-year-old Muslim convert, was arrested in 2002 as he got off a plane in Chicago, returning from Pakistan. He was carrying $10,526, a cell phone and e-mail addresses for al-Qaida operatives.

A month later, then-Attorney General John Ashcroft interrupted a trip to Moscow to announce the arrest, saying Padilla was part of an al-Qaida plot to set off a radioactive "dirty bomb" in the United States.

President Bush declared him an enemy combatant and he was held by the military for 3 1/2 years. Just before the administration had to justify that decision to the Supreme Court, he was transferred to civilian custody and added in late 2005 to the Miami terror support case.

The "dirty bomb" allegations were dropped and alleged admissions Padilla made to interrogators in a Navy brig during his confinement have not been presented during the trial. That's partly because Padilla was not allowed to consult an attorney during questioning, but prosecutors also don't want to discuss how Padilla was treated at the brig. Padilla's lawyers have said the conditions amounted to torture.

The key to the case against Padilla, according to attorneys and legal experts, is how much weight jurors give to the five-page "mujahedeen data form" he allegedly filled out in July 2000 to attend an al-Qaida training camp in Afghanistan. Seven of Padilla's fingerprints are on the form, which was recovered by the CIA in Afghanistan in December 2001.

"The question is whether the defense has a plausible theory for how Padilla's fingerprints got on the form that doesn't implicate him," said Stephen Vladeck, law professor at American University in Washington.

The form also serves to link Padilla co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi, both 45, to al-Qaida. Most of the other evidence and wiretap intercepts concern actions Hassoun and Jayyousi supposedly took to benefit Islamic extremists in global hot spots such as Chechnya, Somalia, Kosovo and Lebanon.

There's little evidence linking any of the three to specific acts of violence but there are ties to groups involved in Islamic jihad. For example, an associate of Jayyousi's was killed in fighting in Chechnya in 1995 and Jayyousi once got a fax signed by al-Qaida leader Osama bin Laden.

Former Miami U.S. Attorney Guy Lewis said prosecutors often are forced to present a "watered-down" case when much evidence is classified to protect national security. It's also a tougher case when there's no "smoking gun" or witness who can swear the defendants committed illegal acts.

"It's a loose-knit conspiracy with very few overt acts," Lewis said. "You didn't catch them committing a terrorist act. Talk only, and talk is cheap."

The ominous presence of bin Laden hovers over the trial, even though U.S. District Judge Marcia Cooke limited references to the Sept. 11, 2001, terror attacks. Jurors were shown a 1997 CNN interview in which bin Laden bitterly denounced the U.S. and heard Hassoun and Jayyousi discuss it on telephone calls.

"Bin Laden might as well be sitting at the defense table next to Padilla," Lewis said.

Through the trial, Padilla has sat virtually motionless most days at the defense table, flanked by lawyers and watched closely by U.S. marshals. He and Hassoun have been in custody since their 2002 arrests, while Jayyousi is out on bail and frequently engages in conversation with lawyers and journalists.

The three face life in prison if convicted on all charges, which include providing material support to terrorists and conspiracy to murder, kidnap and maim people overseas.

The defense says its case will focus on expert witnesses who can provide an alternate view of history, Islamic principles and global politics for the jury. The trial is scheduled to continue into August.

Defense lawyers have suggested that Hassoun and Jayyousi wanted to help oppressed and persecuted Muslims with humanitarian aid. Any violence stemmed from armed conflicts involving competing forces rather than acts of terror against innocents, they say. They also contend that there are many meanings for "jihad" and "mujahedeen" among Muslims, not all of them with violent connotations.

Padilla's attorneys have said he went to Egypt in 1998 to study Islam more intently and hoped to become an imam. Merely traveling to places like Pakistan, they say, isn't proof of ties to terrorism.

Jurors have sometimes shown up for duty in coordinated clothing, most notably in rows of red, white and blue before the July 4 holiday. That has prompted much speculation among lawyers and legal bloggers about whether they are unified or sending a pro-government message.

"If everyone is thinking the same way at such an early stage, defense lawyers get nervous," Markus said. "Or the prosecution could be nervous because this is obviously a happy jury. Happy juries in a terrorism trial might not be good."

Or, he added, they might simply be bored.