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. 

Comments

[Fluffy]

I've never understood the legal basis for holding someone incommunicado in the fashion in the second example.

The accused has the unlimited right to communicate to their counsel, and that counsel has the unlimited right to communicate with third parties. Any "agreement" to not do so, if made a condition of access to counsel, is obtained under duress and should be unenforceable.

[Fluffy]

Before anyone mentions it, I also don't see any basis for so-called "gag orders" prohibiting defense attorneys from talking to the press, either.

[James Butler]

If the accused is classified as an "enemy combatant" or being charged under national security guidelines, it seems pretty clear that holding someone incommunicado, limited the right to counsel and gag orders are all part of the deal, in the interest of national security.

You can never tell what'll be on that pizza.

[Gag pizza order]

Extra cheese, anchovies, pineapple and marshmallow.

[LibertyPlease]

This reminds me to slap that 'Enemy Combatant' bumper sticker on my car...

[John]

Sullum makes good points. The problem is that only a lunatic would actually let Padia go. Here we have a guy who we know is dangerous and if allowed to go free will do harm and perhaps if he gets lucky great harm. But, the fact is that he may not have violated the law just yet beyond "conspiracy". Sullum makes too good of an argument for his own good. The Reason position is that it is horrible to declare people like Padia to be enemy combatants and hold them for the duration. Of course, if you don't do that and you handle it through the criminal justice system, you face the choice of either giving every terrorist one free attack or convicted them on convoluted charges like this. Either way Sullum gets to play ass clown and talk about how horrible the government is all the while being responsible for nothing. If someone is an EPW they are locked up for the duration of the war, no trial, no lawyer, no nothing beyond a visit from the Red Cross. Padia and his ilk thanks to the efforts of Reason and their ilk in the international community face no such risk. They get a gold plated trial and all the justice they need. Basically in the 21st Century you are better off being a terrorist than you are being a soldier.

[Trollaphile]

I wonder how long it will be before they expand the definition of "terrorist" to include gang member, drug smuglers and other criminals. It would save us a lot of money, trials are expensive.

[jimmydageek]

Trollaphile,

Also, gamblers, porn "addicts", and music / movie pirates 🙂

[M]

And guys that set up little boxes with blinking lights in, say, Boston.

[Goldthwait]

It's a shame individuals in this country aren't tried in the court of public opinion with reporters acting as judges. Because as we all know, Jacob Sullum obviously has a better sense of Padilla's culpability than the 12 people that found him guilty.

[Anonymo the Anonymous]

Because as we all know, Jacob Sullum obviously has a better sense of Padilla's culpability than the 12 people that found him guilty.

Right, because as we all know, juries are inherently infalliable, and no observers can possibly have anything relevant to add to the discussion.

[jimmydageek]

And, we all know that juries aren't hand picked to answer a certain way...

[Happy Jack]

Sullum makes too good of an argument for his own good.

So a bad argument would serve him better?

[andronoid]

Maybe I'm missing something but it seems to me that "material support" means something like "a decent amount of support." So even if "providing personnel" includes providing any service to a terrorist the pizza delivery guy would be protected because he didn't provide enough support (unless he delivered a whole lot of pizza).

Also I think you could characterize receiving training from a terrorist group as providing "material support" in the same way that showing up on the battlefield is providing support even if a truce is reached before you ever fire or threaten to fire a weapon. Just by receiving training you have substantially increased the risk the terrorist group poses, increasing the group's bargaining power. Or maybe that's too much of a lawyer-type argument.

[Andy]

Here we have a guy who we know is dangerous and if allowed to go free will do harm

Clearly, we know he's dangerous because the Bush administration said so, and as we all know, the Bush administration is infallible and would never be dishonest with the American people. Ever. And anyone who disagrees with Bush is a lunatic. Bush should be allowed to jail whoever he pleases - for whatever reason. For that reason, due process shouldn't be an impediment when the Decider has designed you an enemy of the state.

[julie]

Everyone here including the author is missing the "reason" Jose Padilla is important.He was tortured . There are alot of people right now being tortured with the govt.'s permission but they are in Abu Graib. They are not American citizens. His signifigance is that if it had been allowed as testimony in the trial that he had been tortured this administration would be on trial for illegally torturing him. It was not allowed by the judge. Does she know Jeb Bush? Wouldn't be suprised if she and him were buddies.

[Zoomie Junior]

Crap! I think I held a door for a terrist once.

[jimmydageek]

I've paid cabbies before for their services. Even tipped them quite nicely in certain instances. What if they turn out to be terrorists?? 🙂

[Karen]

Back in the late 80's I had a job which, among other things, required me to do criminal background checks. (Financial services and we didn't want employees who had records of stealing.) I remember on particularly popular conviction was "conspiracy to possess cocaine." The cops would bust a party and when they couldn't find a usuable amount of the drug on anyone but had observed a few people doing lines, so they simply arrested everyone there on a conspiracy charge. This sort of stuff is like that 'conspiracy' charge. Haul in anyone and sweat 'em to see if they'll name a dealer or big-time famous user. It's especially effective with recent college graduates and people who have something to lose by going to prison.

Oh, and I'm not sure I think Padilla was a threat. He was a nut case with a weird fetish, but what evidence is there besides his poor taste in hobbies that he really had the means and ability to carry out a plot? Just because he's a loon doesn't mean he's a threat. Like Richard Reid and his Nike Exploders, Mr. Padilla appears to have be a thoroughgoing loser and dimwit. What possible good did we get out of tormenting someone already on the edge into insanity?

[Pat Mathews]

According to the left-wing media (taking both give me binocular vision), Padilla has also spent quite some time in Room 101. One hopes not with his head in a cage of rats, but apparently he is now quite a broken man. This may just be the defense strategy; the MSM isn't saying word one on that.

[Seamus]

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.

I still don't see who accepting training constitutes "providing personnel." If I receive training from al-Qaeda, I now have expertise that I can potentially market to any of a number of organizations (including the United States government, for its counter-terrorist efforts), but al-Qaeda doesn't have bupkus until I take the further step of making that expertise available to them.

[Abdul]

Padilla was convicted of conspiring to kidnap, maim, and murder people in other countries.

The only requirements to convict someone in federal court of conspiracy are 1) a defendant who 2) agrees 3) to do some illegal act. It's always been thus. There's a case where a person was convicted for nodding his head in agreement to drug trafficking.

The issue of torture is irrelevant to the issue of guilt in Padilla's case because the torture was not used to elicit incriminating statements that were used against him at trial. I live in a town where prison guards were recently convicted of abusing inmates. It was never suggested that the inmates should be exonerated for their underlying crimes. I'm sure Padilla's lawyers are working on a lawsuit about the conditions of his detention, but it has no bearing on his guilt.

[de stijl]

I'll recycle an old phrase of mine:

Padilla is a terrorist like Tori Spelling's manicurist is a celebrity.

[jimmydageek]

de stijl,

I think it might be more in line with Tori Spelling's manicurist's maid.

[TrickyVic]

"""Finally, Padilla was convicted of conspiring to kidnap, maim, and murder people in other countries."""

I'm still not sure how we have jurisdiction on this one. Shouldn't the countries to whom he intended to harm have the responsibility to prosecute?

[TrickyVic]

"""The problem is that only a lunatic would actually let Padia go."""

Unless they had a lawful reason to hold him. If not, lunatic = believer in the Constitution.

[bubba]

I have a finite amount of Libertarian energy available. Am I a bad person for not spending it on someone who was training to kill me? Even if training to kill me wasn't illegal at the time?

[Mr. Hand]

Again?

hier and he's talking about CUBA!

[Robert]

Seems the appropriate response would be symmetric -- engage in guerrilla war vs. guerrillas. Just have ununiformed people shoot 'em & disappear into the crowd.

[Tampa dui defense lawyer]

The accused has the unlimited right to communicate to their counsel, and that counsel has the unlimited right to communicate with third parties.