Appeals court's unusual ruling: Give Jose Padilla a tougher sentence

Convicted Al Qaeda supporter Jose Padilla, a US citizen once labeled an 'enemy combatant,' was given a 17-year sentence. In a rare ruling, a US appeals court called that too lenient.

A US appeals court, agreeing with federal prosecutors, ruled Monday that convicted Al Qaeda supporter Jose Padilla’s 17-year prison sentence was too lenient.

In a 2-to-1 ruling, the Atlanta-based Eleventh US Circuit Court of Appeals overturned Mr. Padilla’s sentence and ordered a Miami trial judge to recalculate his punishment.

“Padilla’s sentence is substantively unreasonable,” wrote Chief Judge Joel Dubina in a 73-page opinion. It is rare for an appeals court to call for a substantially higher sentence.

At the time of his sentencing, federal prosecutors were seeking life in prison. They appealed the 17-year sentence.

Since his sentencing in Jan. 2008, Padilla, an American citizen who faced harsh interrogation techniques during years in military detention, has been held at the federal supermax prison in Florence, Colo., considered the most secure prison in the country.

Chief Judge Dubina and Judge William Pryor said the sentencing judge – US District Judge Marcia Cooke – had not given enough weight to Padilla’s prior criminal history and had wrongly concluded that Padilla would not likely be a danger to the public after serving his prison term.

“Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” Dubina said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”

The court also concluded that Judge Cooke gave too much credit for the time Padilla was held without charge under harsh conditions in military detention authorized by the Bush administration.

In a 38-page dissent, Judge Rosemary Barkett accused the appeals court majority of “blatantly substituting its own view for the discretion of the trial judge.”

Judge Barkett said Padilla’s 17-year sentence was a reasonable punishment based on factors considered and articulated by Judge Cooke.

“The sentence imposed on Padilla should not be disturbed by this court because doing so simply substitutes this court’s sentencing judgment for that of the trial judge’s, in whom that authority inheres,” she said.

In addition to addressing the government’s appeal of Padilla’s sentence, the appeals court rejected a series of defense arguments, including that prosecutors should not have been allowed to show the jury a video tape of a news interview with Osama Bin Laden.

Padilla and two others were accused of being part of a North American support cell that sent money, recruits, and equipment overseas to Al Qaeda and other radical Islamic groups.

After a three-month trial in 2007, the jury found all three guilty. Padilla was convicted of joining a conspiracy in the US to “murder, kidnap, and maim” persons overseas.

He was also convicted of conspiring to provide material support and actually providing material support to a terror group, knowing that the support would be used in a terrorist plot aimed at murdering, kidnapping, and maiming individuals overseas.

The two co-defendants, Adham Hassoun and Kifah Jayyousi, were also convicted. The appeals court affirmed all three convictions on Monday.

Padilla’s name first burst onto the international stage in May 2002 when then-Attorney General John Ashcroft announced that Padilla had been sent to the US to conduct a radiological “dirty bomb” attack in a major city.

A month later, President Bush designated Padilla an enemy combatant. He spent 3-1/2 years in an isolation cell at the US Naval Brig in Charleston, S.C., and was subjected to harsh interrogation techniques, including prolonged exposure to cold, as well as sleep and sensory deprivation. Mental health experts hired by Padilla’s lawyers say the harsh tactics may have caused permanent psychological damage.

While still in military custody, lawyers working on Padilla’s behalf argued that Mr. Bush had overstepped his constitutional authority in ordering the open-ended military detention without trial of a US citizen.

As that issue was about to reach the US Supreme Court, the Bush administration moved Padilla to the criminal justice system to stand trial on terror conspiracy charges. The action rendered the pending Supreme Court case moot, and allowed government lawyers to avoid having to defend the legality of Padilla’s interrogation and the conditions of his confinement.

It is the criminal case prosecuted in Miami that is the subject of Monday’s appeals court decision.

Because of the coercive techniques used against Padilla while in military custody, prosecutors were barred from relying on any statements he made to intelligence officials. That left the government scrambling to assemble enough evidence to win a conviction.

At trial, prosecutors said the support cell conspiracy ran from October 1993 to Nov. 1, 2001. They presented transcripts culled from 300,000 secretly-recorded conversations.

Padilla was overheard in seven conversations, and none involved incriminating statements by him.

The government presented testimony by an FBI agent who said many of the words used in the recorded conversations were code words to mask the participants’ support of violent jihad. He said they used the word “eggplant” to mean rocket-propelled grenade, and “tourism” for jihad, Islamic holy war.

Defense lawyers said the recorded conversations involved innocent discussions of international political events involving the persecution of Muslims.

The appeals court split 2 to 1 on whether Judge Cooke was correct to allow the FBI agent to testify about his opinion of what the “code” words actually meant.

“[The agent’s] knowledge of the investigation enabled him to draw inferences about the meaning of code words that the jury could not have readily drawn,” Dubina wrote, in upholding the admission of his testimony.

Barkett disagreed. “[The agent’s] lay opinions were nothing more than the government’s closing argument in disguise because the jurors were able to review the same transcripts of the pre-recorded telephone conversations and could draw their own conclusions about that evidence,” she wrote.

Barkett added that incriminating statements given by Padilla to the FBI shortly after his arrival at Chicago’s O’Hare International Airport should not have been presented to the jury because Padilla had not been given Miranda warnings prior to making his statements.

Dubina agreed that statements from part of Padilla’s FBI interrogation at the airport could not be presented to a jury. But he said the error was harmless since no testimony from that portion of the interrogation was presented to the jury at Padilla’s trial.

Although there is no suggestion that the three alleged support cell members had any connection to the 9/11 attacks, Judge Cooke allowed prosecutors to play a videotape of a 1997 CNN interview with Mr. bin Laden.

Bin Laden told CNN that he had declared a holy war against the US because it was an unjust and tyrannical country.

Defense lawyers objected to the video on grounds that it would enflame the passions of the jurors against the defendants and subject them to guilt by association.

Prosecutors presented a snippet of a 1997 monitored conversation between co-defendants Hassoun and Jayyousi discussing the bin Laden interview. “May God protect him,” Hassoun said of bin Laden.

“The excerpted portion of the video did not present a risk of unfair prejudice such that the district court committed an abuse of discretion in allowing the government to present it to the jury,” Dubina wrote.