Thread: Grave Blow To The Constitution

Grave Blow to the Constitution
Padilla Jury Opens Pandora's Box
By PAUL CRAIG ROBERTS


Jose Padilla's conviction on terrorism charges on August 16 was a victory, not for justice, but for the US Justice (sic) Department's theory that a US citizen can be convicted, not because he committed 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, August 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 US 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 mujahideen (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-Qaida operative Jose 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's 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. . . . Caruso asked Kavanaugh if Padilla ever was heard using what prosecutors say were code words for violent jihad . . . 'No, he does not,' Kavanaugh replied. . . . Caruso asked Kavanaugh if Padilla was ever overheard discussing jihad training. 'No jihad training that I've seen,' Kavanaugh said. . . . '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 testified."

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 September 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 US Attorney Brian Frazier misinformed the jury in his closing statement.

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 results.

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" (washingtonpost.com, August 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 US 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 US government charged that he was about to set off a radioactive "dirty bomb" in a US 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 US 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 US Constitution and give us the rule of men.

The US 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 US 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 US Department of Justice (sic) violated both the US 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 US 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" verdict, the US 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 US 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.

Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions.He can be reached at: PaulCraigRoberts@yahoo.com





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Related article:


Bad News for All Americans--Especially Journalists
Convicting Padilla

By DAVE LINDORFF

With habeas corpus a thing of the past, with arrest and detention without charge permitted, with torture and spying without court oversight all the rage, with prosecutors free to tape conversations between lawyers and their clients, and with the judicial branch now infested by rightwing judges who would have been at home in courtrooms of the Soviet Union or Hitler's Germany, for all they seem to care about common law tradition, the only real thing holding the line against absolute tyranny in the U.S. has been the jury.

Now, with Jose Padilla--a US citizen who was originally picked up and held incommunicado on a military base for three and a half years, publicly accused (though never charged) with planning to construct and detonate a so-called "dirty" nuclear device (this a guy without a high school education!), all based upon hearsay, evidence elicited by torture, and a few overheard wiretapped conversations where prosecutors claimed words like "zucchini" were code for explosive devices-convicted on a charge of "planning to murder," we see that juries in this era of a bogus "war on terror" are ready to believe anything.

That last line of defense-the common sense or ordinary citizens in a jury box-is gone too.

The jury in this case apparently accepted the government's contention that Padilla was a member of Al Qaeda, and had returned from a trip to Pakistan full of plans to wreak mayhem on his own country. They cared not a whit for the fact that the government had used methods against Padilla (three years of isolation and total sensory deprivation that had driven him insane) which would have made medieval torturers green with envy. They cared not a whit that there was no real evidence against Padilla.

This was, in the end, a case that most closely resembled the famous Saturday Night Live skit in which witches were dunked underwater to "prove" whether they were in fact witches, and where if they drowned, they were found to be innocent. In the end, Padilla's jury simply bought the government's wild and wild-eyed story. They decided he hadn't drowned, so he must be guilty.

Padilla can now expect to spend what's left of his life in prison. Since the government has already driven him insane, he will have the added burden of being mentally unbalanced from the outset of his incarceration. His survival prospects are not good.

The president promptly thanked the jury for their "good judgment."

We can no doubt expect many more Padillas now that the way has been paved for this kind of totalitarian approach to law enforcement.

Beginning today, we can expect the government to begin arresting people on an array of trumped-up charges, locking them away in black sites, on military bases, or maybe even overseas, subjecting them to all manner of torture, and then finally bringing them to trial on trumped-up charges. We can also expect juries, made fearful by breathless warnings that "evil ones" mean us and our nation harm, to buy the government's stories.

Who is at risk? That's hard to say, but it's clear that it won't just be hardened terrorist types. A presidential executive order signed by Bush on July 17 declares that anything that "undermining efforts to promote economic reconstruction (sic) and political reform (sic) in Iraq" could be deemed a crime making the perpetrator subject to arrest. Would writing essays critical of the president, the war in Iraq, or the "reconstruction" effort in Iraq meet that standard? Who knows? Would being interviewed for commentary as part of a news story on English-language Al Jezeera TV (which Bush and Cheney have declared to be supportive of the Iraqi insurgency, and which Bush reportedly at one point considered bombing!)?

And how about anti-war protesters? We already have Washington, DC, under pressure from Homeland Security, threatening the organization World Can't Wait with multiple $10,000 fines for posting flyers around the city announcing an anti-war march and rally on September 15. If they go ahead with the protest, will they be joining Padilla?

I have little doubt that this administration would love to lock up journalistic critics and protesters in military brigs, so the question is: how would juries respond to charges that American journalists and protesters against the war were treacherously undermining the Bush war effort?

I used to be confident that most juries would laugh such cases out of court. After the Padilla decision, I'm not so sure.

You want to think that your fellow citizens have at least some measure of common sense, but this case suggests otherwise--that they are easily frightened, gullible, and willing to believe the most fantastic claims of the government.

The future does not look good for freedom in America.

Dave Lindorff is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His n book of CounterPunch columns titled "This Can't be Happening!" is published by Common Courage Press. Lindorff's newest book is "The Case for Impeachment",
co-authored by Barbara Olshansky.

He can be reached at: dlindorff@yahoo.com










http://www.counterpunch.com/lindorff08172007.html

If true, I'm sure his lawyers will begin the appeals process. This could end up in the supreme court, and they have been known to rule against this kind of case.

Well, as you people always want to point out....It was a JURY....remember the Ramos/Compean case. They kept pointing to the JURY, but I think THAT was trampling all over everykind of principal, law and freedom we have. I have no opinion, except don't mess around with terrorist stuff. This country is in no mood to tolerate anyone like this, irregardless of the fact, he hadn't gotten around to blowing anything up yet.

I still can't get over people wanting to try enemy combatants as criminals in front of a jury. What are we supposed to do???....put lawyers on the lines with the soldiers? It's absurd!

I didn't read the entire article, but wasn't the Mujahideen once our friends in Afghanistan? Didn't we help them?

I remember some congressperson, I think I remember who, but not sure, talking glowingly about them.