Judge Says Dirty Bomb Case is "Light on Facts"

By Chitra Ragavan

Posted 4/23/07

When Jose Padilla was arrested at O'Hare International Airport in Chicago in May 2002, then Attorney General John Ashcroft interrupted his meetings in Moscow to announce that the United States had nabbed a suspected al Qaeda operative who had intended to blow up a radiological device, or "dirty bomb," in the United States.

But when Padilla soon goes to trial, the government could have considerable trouble proving the case and supporting what Ashcroft then billed as a "significant step forward in the war on terrorism."

Indeed, the allegations of a dirty bomb plot are nonexistent in the government's court papers, and the two sources who made those allegations most likely will not be witnesses for the prosecution. And even the federal judge in the case, Marcia Cooke, said during a recent pretrial hearing that the indictment is "very light on facts."

Jury selection is currently underway in Miami and is expected to last a couple of weeks. Because of the publicity surrounding the case, Cooke allowed an unusual number of peremptory strikes against potential jurors. The judge also has to rule on several big motions outstanding, including whether to honor a request from lawyers for Padilla's codefendants, Adham Amin Hassoun and Kifah Wael Jayyousi, to sever their trials from Padilla's. The three men have been accused of running a "North American support cell" that fed into a global network of operational and support members of al Qaeda who were conspiring to create "violent jihad."

But the lack of specifics about what particular plots the men had initiated in the United States will become the central defense message from lawyers for the three defendants.

"The question is," says University of Richmond constitutional law professor Carl Tobias, "whether the government can connect all the dots in terms of conspiracy and persuade the jury."

The Padilla case is a big test case for the government because Padilla is the first U.S. citizen to be tried in federal court on post-9/11 terrorism charges, says Tobias. There's another thorny issue the government must contend with. Padilla has claimed that he was tortured during military interrogations while he was held at a naval brig after his arrest. Padilla didn't have a lawyer during those interrogations, and his statements will not be introduced into the record in this trial. "Padilla's lawyer will try to raise that," says Tobias, "and the government will avoid it if at all possible."

The trial could be all the more unpredictable, says Tobias, because the government is charging that Padilla was part of a vast international conspiracy, but many of the details are classified.

"A lot of the evidence," says Tobias, "we don't even know about."