The Terrorist Trainee, the Terrorist's Lawyer, and the Pizza Guy

I didn't have the space to get into this in my column today, but the charges (PDF) on which Jose Padilla was convicted ranged from puzzling to a bit of a reach. Congress did not specifically outlaw the essence of his crime—undergoing training for terrorism—until 2004. Since Padilla went to Afghanistan in 2000 and returned to the U.S. in 2002, he was instead charged with providing "material support" to a terrorist group. This is the same charge that has been brought in other cases involving people who underwent terrorist training prior to 2004, such as the Lackawanna Six. But it requires an implausible reading of the statute, which specifically lists the kinds of help that count as "material support."

Among them is providing "personnel," and the Justice Department maintains that "personnel" can include oneself as well as other people. Such a broad reading potentially could cover anyone who does work for a terrorist group, including lawyers who represent accused terrorists. This problem is compounded by a 2004 amendment that extends the material support prohibition to "any…service." As UCLA law professor Norman Abrams noted in a 2005 Journal of National Security Law & Policy article (PDF), "the janitor or the pizza delivery person or a taxi driver, or anyone who provides the most mundane 'services,' would seem to be at risk of prosecution" under this provision.

Even if you can "provide personnel" simply by contributing your own labor, learning how to fire an assault rifle seems more like receiving than giving. Presumably that is why the government plays up any actions during training, such as serving as an armed guard, that resemble real work, even if the main point of those duties is pedagogical.

In addition to providing material support, Padilla was convicted of conspiring to provide material support, based largely on his ties to two codefendants accused of sending money to terrorist groups (which clearly counts as material support under the law). But while Padilla's friends may have encouraged him to seek Al Qaeda training and assisted him in doing so, that seems to have been the extent of his participation in this "terrorism support cell." So this charge too seems to hinge on whether undergoing training amounts to providing personnel.

Finally, Padilla was convicted of conspiring to kidnap, maim, and murder people in other countries. That may seem far-fetched in light of his failure to attempt, let alone carry out, a single act of terrorism. But of the three charges, it is the one that best fits his actions. Although Padilla's lawyers argued that Al Qaeda's arms training could be helpful to people who plan to use violence only in defense of other Muslim, it seems reasonable to assume that someone who undergoes terrorism training plans to commit acts of terrorism and does so in concert with others to the extent that they help him obtain the training. This charge not only avoided having the whole case hinge on the meaning of "material support"; it also boosted the potential sentence from 15 years (the maximum for providing material support) to life.

In the June 2004 issue of reason, Jarett Decker considered the case of Lynne Stewart, a New York lawyer who was charged with providing material support to terrorists because she helped a client, the imprisoned terrorist leader Sheikh Omar Abdel Rahman, secretly pass messages to his followers, in violation of government restrictions to which Stewart had agreed. The government initially said Stewart had provided personnel by providing herself and provided "communications equipment" by making phone calls and sending faxes on Abdel Rahman's behalf. After a judge ruled that the material support prohibition was unconstitutionally vague as applied in the original indictment, the government changed tack, dropping the part about "communications equipment" and saying Stewart had provided personnel by making Abdel Rahman available to his followers. In February 2005, Stewart was convicted of providing material support and conspiring to provide material support as well as concealing the support, making false statements, and conspiring to defraud the government. She received a 28-month sentence in October 2006 but is free on bail pending her appeal.