Sparks fly in Padilla sentencing hearing

It took less than two days for a federal jury in August to return guilty verdicts against suspected Al Qaeda operative Jose Padilla and two codefendants in their Miami terror conspiracy trial.

But five months later, prosecutors and defense lawyers are still slugging it out over the extent to which the three men broke the law.

In a sentencing hearing now expected to stretch into a second week, US District Judge Marcia Cooke is officiating over an emotional courtroom drama unfolding between federal prosecutors determined to send the three men to prison for the rest of their lives and defense lawyers who say the government is hyping the conduct of the three beyond what has been proved.

In most criminal cases, once a defendant is convicted, meting out an appropriate punishment is a routine event. But there is nothing routine about the legal odyssey of Mr. Padilla, and codefendants Adham Hassoun and Kifah Jayyousi.

Padilla spent 3-1/2 years in military custody and was subjected to harsh interrogation tactics after being designated an enemy combatant by President Bush. The military detention was an intelligence-gathering operation aimed at breaking Padilla psychologically to force a confession while blocking access to the courts or a lawyer. When court rulings began to turn against the administration, Padilla was moved into the criminal-justice system and placed on trial in Miami.

Federal agents had Mr. Hassoun and Mr. Jayyousi under surveillance for more than a decade before the government decided to turn its intelligence-gathering operation into a criminal prosecution.

To make their case, prosecutors relied on a broad reading of conspiracy laws. The three men were accused of being members of a North American support cell providing money, equipment, and recruits to militant groups overseas waging what the prosecutors say was "violent jihad." Specifically the three men were charged with conspiring to murder, kidnap, and maim people overseas, conspiring to provide material support for terrorists, and providing material support to terrorists.

No evidence was presented at the trial linking the three men to an actual terrorist plot to conduct a specific bombing or other attack that might result in murder, maiming, or kidnapping. Instead, prosecutors presented a series of secretly recorded telephone calls that they said proved the three men had the necessary intent to help militant groups overseas wage violent jihad. They portrayed Hassoun as a recruiter in the cell, Jayyousi as providing money and logistics, and Padilla as the "star recruit."

Prosecutors presented a "mujahideen data form" that they say Padilla completed prior to attending an Al Qaeda training camp in Afghanistan. And they played the jury a tape of a CNN interview with Osama bin Laden – although there is no evidence that the three men had any dealings or connection to Mr. bin Laden.

According to a prosecutor, the tape was played to inform the jury of "the kind of value system [the defendants] subscribe to." Defense lawyers say it was aimed at poisoning the jury against their clients.

The jury convicted on all counts. What remains unclear is exactly how much of the government's case the jury endorsed.

To determine appropriate sentences, Judge Cooke must determine the culpability of each man.

A presentence investigation report was prepared to help the judge make that determination. But the report, written by the US Probation and Pretrial Services System with the help of prosecutors, suggests that virtually every allegation the government raised at trial was proved beyond a reasonable doubt.

Defense lawyers dispute this and have been waging a paragraph-by-paragraph battle to rewrite the report.

In addition, there is sharp disagreement over the scope and seriousness of the crimes. Legal experts say this is one of the consequences of prosecutors using expansive conspiracy charges in a case relying on circumstantial evidence and with no cooperating insider witnesses.

This mounting disagreement was highlighted in a courtroom exchange between Michael Caruso, an acting federal public defender representing Padilla, and Assistant US Attorney Russell Killinger.

Mr. Caruso told the judge that Padilla should receive a lighter sentence for his relatively minor role. He said the indictment identifies a global conspiracy to wage violent jihad in places like Kosovo, Somalia, and Chechnya, and that his client played an insignificant part in it. The government's evidence shows only that Padilla traveled to the Middle East and at some point filled out an application to attend a training camp, he said, but the trial record shows Padilla never traveled to Kosovo, Somalia, or Chechnya.

"Jose was not central or essential," Caruso said. "The fighting went on without his involvement."

Despite government assertions that Padilla was a "star recruit," Caruso said, there is no evidence that Padilla took any affirmative step to help in someone's murder, maiming, or kidnapping.

Mr. Killinger responded that Caruso's claim was "astonishing."

"[Padilla] stands before the court as a trained Al Qaeda killer," Killinger said.

Caruso shot to his feet: "That's outrageous, Your Honor."

Killinger said the government would introduce evidence later in the hearing to prove that Padilla had "successfully graduated from the camp."

“The jury found that Padilla willfully, intentionally, and knowingly supplied himself to Al Qaeda,” the prosecutor said. “For him to say he is less culpable is tantamount to a hit man suggesting he is just a minor player in a murder-for-hire scheme. He is the instrument of the scheme itself.”
Caruso said two of the government’s own witnesses at trial established that many of the thousands of young Muslim men who attended training camps in Afghanistan did so out of a sense of religious obligation to protect the Muslim community, not to prepare to become terrorists and trained killers.