Lawfare vs. intelligence sources and methods in Padilla case

Christian Science Monitor:

When Jose Padilla was taken into custody at Chicago's O'Hare airport in 2002, government officials announced with great fanfare that he was plotting with Al Qaeda to detonate a radiological "dirty bomb" in a major US city.

Now, five years later, Mr. Padilla is about to stand trial in federal court here. But there is no mention of a dirty bomb plot anywhere in the case.

It is not an oversight. A criminal trial is not intended to be a history lesson. Instead, to protect Padilla's right to a fair trial, the case against him is based on a much more skimpy presentation of evidence.

The omission illustrates a fundamental tension between the Bush administration's iron-fisted approach to intelligence gathering in the war on terror and a US citizen's entitlement to constitutional and other protections of the criminal-justice system.

The alleged dirty-bomb plot was uncovered through the use of coercive interrogation tactics – torture according to Padilla and others – which renders the information too unreliable to be admitted in an American court. As a result, federal prosecutors were forced to build their Miami conspiracy case using evidence obtained through noncoercive means and investigative methods that did not violate core constitutional guarantees.

Barring the dirty bomb and other improperly obtained evidence from the criminal case has greatly complicated prosecution efforts to win a conviction and potentially put Padilla behind bars for the rest of his life.

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Unlike most terror-conspiracy cases, the case against Padilla and his two co-defendants does not focus on any particular plot or attack. Instead, prosecutors say the defendants violated US law by participating in a North American support cell that sent money and recruits to a wide variety of radical Muslim groups overseas. It is the overseas Muslim groups that engaged in violent jihad, or holy war.

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The defendants deny that they supported violence. They say that they were helping fellow Muslims in need.

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Padilla was found after the interrogation of al Qaeda leaders like KSM. Calling KSM or other detainees as witnesses is out of the question. Thus the case is reduced to issues that will not have to reveal how the intelligence was obtained. This highlights the problem of the lawfare method of dealing with the enemy. It would make more sense to hold Padilla at Gitmo for the duration of the war as we have done in past wars with captured enemies.