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Indictment of Jose Padilla: another chapter in Bush’s war on democratic rights

On Tuesday, six days before the Bush administration faced a deadline to file legal arguments with the Supreme Court in the case of Jose Padilla, a US citizen named by Bush as an "enemy combatant" and held for three-and-a-half years in a military brig, Attorney General Alberto Gonzales announced that Padilla had been indicted on terrorist charges and would face trial in criminal court.

The indictment followed an order signed Sunday by Bush, with no public announcement, releasing Padilla from military detention so that his case could be moved into the criminal justice system.
In announcing the indictment, Gonzales said the Justice Department now considered the Supreme Court case "moot". This made clear that the government's decision to drop its insistence that it had a right to hold Padilla indefinitely, without charges and without access to the courts, simply on the say-so of the president, was a maneuver designed to avert the possibility of the high court limiting or rejecting the "enemy combatant" designation for US citizens and the Bush White House's use of it to claim quasi-dictatorial powers.

The category "enemy combatant" is without precedent in US or international law, having been fabricated by the Bush administration to imprison people without reference to acts of Congress, judicial protections for criminal defendants or the Geneva Conventions protecting prisoners of war.

That this latest turn in the Padilla case is motivated entirely by political considerations of the most anti-democratic character is confirmed by the content of the indictment itself. The indictment, which charges Padilla with being part of a "North American support cell" that worked to support violent jihad campaigns outside the US, makes no mention of the alleged crimes that were initially cited to justify his being thrown into a black hole of indefinite military detention.

Padilla was arrested in May of 2002 at Chicago's O'Hare Airport, and initially held as a material witness in connection with the government's investigations into the September 11, 2001 hijack bombings. In June of 2002, then-Attorney General John Ashcroft interrupted a trip to Moscow to announce on US television that officials had thwarted an effort by Padilla and other Al Qaeda operatives to explode a radioactive or "dirty" bomb on American streets.

On the basis of this sensational charge, Bush declared Padilla to be an "enemy combatant," had him transferred to a Naval brig, and denied him any right to contest the allegations against him or legally defend himself.

But the indictment released Tuesday by Gonzales says nothing about dirty bombs, an Al Qaeda link, or a plot to carry out an attack within the US.

In June of 2004, after the government had suffered court reverses and was forced to allow Padilla to meet with his legal counsel, the Justice Department came up with new charges, now claiming that Padilla plotted to blow up apartment buildings and hotels in US cities.

But no such charges appear in the indictment released Tuesday.

At the Washington DC press conference where he announced the indictment, Gonzales refused to answer reporters' questions about these wild discrepancies, blandly declaring the charges leading to "the designation as an enemy combatant ... legally irrelevant".

The clear fact is that the government could not include in a criminal case headed for open court the allegations it used to imprison Padilla without legal recourse, because those charges would not stand the slightest judicial scrutiny. They would not stand scrutiny because they are based neither on provable fact nor serious evidence.

The Padilla case, from the time Bush declared the Brooklyn-born citizen an enemy combatant and Ashcroft went on national television with the "dirty" bomb allegations, was a politically motivated operation aimed at spreading fear and panic within the population in order to justify an unprecedented attack on democratic rights at home and an explosion of US militarism abroad.

It was part and parcel of the campaign, in the name of the so-called "war on terrorism," to expand the police powers of the state, establish something approaching a presidential dictatorship, and gut Constitutionally mandated civil liberties. This has taken the form of the Patriot Act, which drastically erodes protections against government spying, illegal searches and seizures and invasions of privacy, and the establishment of the Homeland Security Department, an overarching apparatus for domestic control and repression.

At the same time, the drive to create an atmosphere of fear and insecurity was essential to manipulating public opinion in advance of the launching of a war, nine months after Ashcroft's televised announcement, to topple Saddam Hussein, occupy Iraq and seize control of the country's oil assets.

The indictment announced Tuesday charges that Padilla conspired with Adham Amin Hassoun, Kifah Wael Jayyousi, Mohammed Hesham Youssef and Kassem Daher in a cell that sent money, physical assets and mujahideen recruits for the purpose of fighting "violent jihad" in Afghanistan, Algeria, Bosnia, Chechnya, Lebanon, Libya and Somalia, and that they did so through the operation of various front groups, including the American Islamic Group, the Islamic Center of the Americas, and Save Bosnia Now.

The "overt acts" alleged in support of the conspiracy begin in 1993 and end in November of 2001. They consist principally of conversations, intercepted by covert US government wiretaps, in which there were discussions about "friends," "football," "tourism," "fresh air," "picnics" and so forth, supposedly code words for nefarious but undefined activities. The indictment also lists sundry payments in the range of $1,000 to $5,000, none of which on its face appears sinister or out of the ordinary.

Padilla is mentioned briefly as a "recruit" who traveled to Egypt and Afghanistan, where he filled out a "Mujahideen Data Form". He is not alleged to have actually engaged in any "jihad" or other violent activities.

At the press conference, Gonzales claimed the alleged conspiracy encouraged "acts of physical violence such as murder, maiming, kidnapping and hostage-taking against innocent civilians". However, the indictment fails to identify a single person anywhere in the world who was harmed.

If convicted of the charges laid down in the indictment, Padilla faces a sentence of imprisonment for life.

Whether or not Padilla or any of his co-defendants were involved in or supported Islamist jihadist movements, it should be noted that in the time period specified in the indictment, the United States government was itself collaborating with such forces in a number of countries, openly in Bosnia, for example, and, according to many reports, secretly in Chechnya.

The Supreme Court ruled in June 2004 in the case of Yaser Hamdi, a US citizen captured among Taliban fighters in Afghanistan and declared to be an enemy combatant, that enemy combatants captured on foreign battlefields were entitled to some due process determination of their status. Hamdi was then released on condition that he remain in Saudi Arabia, his parents' home country.

In another case decided at the same time, the high court ruled that Guantánamo prisoners could seek habeas relief in US courts. It avoided ruling on Padilla's petition, however, voting 5-4 that Padilla should have been filed his initial appeal in Charleston, South Carolina, where he was being held in military detention, rather than in New York, where he was first held as a material witness.

Padilla's attorney, Donna Newman, filed a new habeas petition in South Carolina, where United States District Judge Henry F. Floyd ruled that Padilla had to be charged with a crime or released. Himself an appointee of Bush, Floyd wrote that if the administration's position "were ever adopted by the courts, it would totally eviscerate the limits placed on presidential authority to protect the citizenry's individual liberties".

Floyd's decision, however, was reversed in September of this year by a three-judge panel of the Fourth Circuit Court of Appeals, led by Michael J. Luttig, a prominent figure on Bush's "short list" of candidates for upcoming Supreme Court vacancies. Luttig upheld unbridled executive power to imprison "enemy combatants," claiming that Padilla served as an armed guard for the Taliban and Al Qaeda in Afghanistan at the time when US troops were engaged in combat against them, and then "traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets".

Padilla has "avowed" nothing of the sort. He has formally denied the charges, but because of the enemy combatant doctrine has never had a legal forum to challenge them.

Padilla filed a second petition with the Supreme Court last month, appealing Luttig's ruling. The administration's response was due next week.

Padilla's lawyers intend to proceed in the Supreme Court despite the release of their client from military custody. Andrew Patel, Newman's co-counsel, explained on the radio show Democracy Now! that the threat posed by the Bush administration's invocation of the "enemy combatant" doctrine still exists.

In opposition to the government's claim that the case is moot, Patel said, "We will ask the Court to consider this very important issue. Not only is it not moot as to Mr. Padilla—for example, suppose he was acquitted of this charge or the case was somehow dismissed, and the government decided that, 'Well, we don't want him out,' and they just declare him to be an enemy combatant and send him back to the brig again. Until the Supreme Court rules that the president does not have that power, that's an authority, as Justice Jackson said in his dissent to Korematsu [the World War II Japanese-American internment case], that lies around like a loaded gun ready to be used or abused at any time."

There is an obvious and bitter irony in Gonzales charging Padilla, or anyone else, of supporting the kidnapping of individuals and other illegal acts. In his prior role as Bush's White House counsel, he presided over the drafting of the now infamous torture memoranda and gave legal advice justifying an international gulag for victims of "rendition" snatched by US agents off the streets and taken to secret prisons.

homepage: homepage: http://www.wsws.org

Padilla Is Part Of The Problem 25.Nov.2005 05:49

Rex Solaris

The tone of this article is one of sympathy for the plight of a man whose real name, whose legal name is Abdullah Al Mujahir.

Calling him "Jose Padillo" would be like calling Muhammad Ali by his old name, "Cassius Clay".

I can only think that this is done to divert attention from the problem of radical Muslim identity.

So let's just say that I see Abdullah Al Mujahir as a person deserving of a trial for an attempt to harm others regardless of the faults and dysfunctional aspects of the Justice Department and Gonzales.

There are many failings to the Patriot Act and even a conservative such as Judge Napolitano argues against the Patriot Act in his book, Constitutional Chaos.

But Abdullah Al Mujahir needs to be tried and, if the evidence warrants it, needs to go to prison.

Otherwise you practice the very blind approach to life and politics summarized in the saying, "the enemy of my enemy is my friend", when clearly that is not the case given the atrocious record on civil rights and women's rights in countries run by people who think and act as Abdullah Al Mujahir.

Let the moderate Muslims such as the ones protesting the bombings in Jordan recently come to the fore. And put those of any kind of fanaticism, religious or secular, who would use violence behind bars.

Rex Solaris

hmmmm 25.Nov.2005 09:02


the bigger issue in the article was our rights being destroyed. By focusing your attention on the 'radical islam', you are merely creating a diversion, soemting the conservatives love to do- the ends justify the means?

What End And What Means? 26.Nov.2005 15:07

Rex Solaris

I think that there are far better examples of abuse of power by the Justice department.

For example, there was the attorney here in Oregon that was accused of participating in the train bombings in Spain.

By changing his name back to "Jose Padillo", the media concsiously seeks to avoid the question as to who is behind the terrorism that threatens the West as if there were no problem.

Why do that? Because they have succumbed to the politically correct thought that all evil directed in our direction is simply the result of a reaction, however inappropriate, to something we initiated here in the West.

Simply not true.

Even in the "golden age" of Spain, from 700 to the year 1492 when the "ornament of the world" as it was called ended as Ferdinand and Isabella kicked the Jews out of Spain, there have always been Muslims able to live with Jews and Christians, as they did in Spain, and others who sought to impose their religious law everywhere.

During that stretch of time in Spain, Iberian Christians worked with teams of Jews and Muslim Arabs to translate the great Greek thinkers into Hebrew from Arabic and then into the emerging dialect of the region and then once again into Latin.

Those works transformed Europe and helped bring about the Renaissance.

But, even then, when "El Cid" could pick and choose if he allied himself with local Muslims or Christians, the kind of fanaticism that Jose Padillo's brand of the Muslim faith was practiced by militant Muslims and caused the same problems then as now.

So, this has nothing to do with being "conservative" which I most certainly am not, but had everything to do with actually knowing history and having an appreciation of what history means and has meant in the context of emerging democracies in the world.

Padillo's problem is that he is anti-democratic, but then again so are left-wing and right-wing fanatics, many of them Americans in name only.


By The Way 26.Nov.2005 16:27

Rex Solaris

Just got banned from a conservative website a few days ago.

They would use the same "logic" to defend not being able to defend the irrational aspects of their postions.

Fundamentalists of any faith, political persuasion or philosophy who espouse anti-democratic policies- I oppose them.


boring rex 27.Nov.2005 08:19


you oppose left and right wing 'fanatics' of all kind, and you cheer democracy.

was there any epoch of our greatest of democracies that you could point to as a place to return?

what you 'moderates' fail to understand is that democracy and capitalism have never worked in unison, and never will. While you arrogantly proclaim democracy, much of the world suffers. By opposing anyone with an alternative way to progress, you become part of the reaction, along with the Republicans.
There is a lovely myth that originated around the year 1900; this myth talked about consistent progress under capitalism. Isn't time we destroyed this myth, and all its implications? Your post would be a good start!

Boring Is As Boring Does 28.Nov.2005 15:33

Rex Solaris

See, right away you just had to call me names as if calling me names such as "boring" was going to clear the whole thing up and as if your opinion, "boring", would not be in contradiction with your posting back.

I am not a "moderate". I am hardly "moderate" about anything. I am for revolutionary changes in society that begin with revolutionary changes in large numbers of individuals so as to avoid the tragedies of the last several hundred years of attempted reforms gone to hell in the proverbial handbasket.

Every ideal must be complemented by its opposite. Whoever is incapable of realizing that his cherished ideal has a complement and an opposite to balance it is a radicalized individual who brings about a lot of hell in his one-sided take of life.

Spiritual radicalism and utter pragmatism. Marry those two and you get something.

Spout cliched thinking that affirms your membership in groupthink which is just "idealism" is, and you set up a society that is just the "Bizarro" version of the one you opposed.

And it only looks like "justice" to the losers of the old system.


Boring Is As Boring Does Is Back 28.Nov.2005 15:58

Rex Solaris

For example I am against "free trade", against the "war on drugs", and would gladly name other policies that I oppose.

What makes me think that none of that will matter?

It will all come down to any situation in which I disagree about the end or even worse, the means, to get me labeled so as to ostracize me out of fear of the potential draw of my postion which would in turn undermine the Very Old But Thinks-it's-new New Left.