Padilla Jury Opens Pandora’s Box


Richard Moore

Original source URL:

August 20, 2007
Padilla Jury Opens Pandora's Box
by Paul Craig Roberts

José Padilla's conviction on terrorism charges on Aug. 16 was a victory, not for
justice, but for the U.S. Justice (sic) Department's theory that a U.S. citizen 
can be convicted, not for committing 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, Aug. 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
U.S. 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 mujahedeen (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-Qaeda operative José 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. Š Caruso asked Kavanaugh if Padilla ever was heard using what 
prosecutors say were code words for violent jihad. Š 'No, he does not,' 
Kavanaugh replied. Š Caruso asked Kavanaugh if Padilla was ever overheard 
discussing jihad training. 'No jihad training that I've seen,' Kavanaugh said. Š
'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 

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 Sept. 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 U.S. Attorney Brian Frazier misinformed the jury in his closing

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 

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" 
(, Aug. 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 U.S. 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 U.S. government charged 
that he was about to set off a radioactive "dirty bomb" in a U.S. 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 U.S. 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 U.S. Constitution and give us the rule
of men.

The U.S. 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 U.S. 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 U.S. Department of 
Justice (sic) violated both the U.S. 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 U.S. 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's verdict, the U.S. 
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 U.S. 
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.

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