After a three-month trial, a federal jury convicted home-grown terrorist Jose Padilla (AKA Abdullah al-Muhajir or Muhajir Abdullah) on terrorism conspiracy charges. Padilla and co-defendants Adham Hassoun, a Palestinian born in Lebanon, and Kifah Jayyousi, a naturalized U.S. citizen from Jordan, were found guilty of one count of conspiracy to murder, kidnap and maim overseas, one count of conspiracy to provide material support for terrorists and one count of material support for terrorists.

Opponents of the Bush administration’s policy of treating terrorists as enemy combatants rather than common criminals, point to the verdict as “proof” that convictions can be obtained while affording jihadis full constitutional rights.

A former gangbanger with a criminal record, the Brooklyn-born convert to Islam was arrested in Chicago in May 2002, and held in civilian custody in New York for a month. Hours before Padilla was to appear in federal court, President Bush designated him an “enemy combatant” and he was imprisoned in a Navy brig in SC for 3½ years because the government believed he was engaged in a plot to obtain and detonate a radiological “dirty bomb” in an American city.

It took several years for a lawsuit challenging the constitutionality of Padilla’s detention to reach the Supreme Court, which sidestepped the issue with a 2004 ruling that the case should have been brought in SC, not NY. In 2005, Padilla’s suit was to come before the high court again, when the Bush administration abruptly changed course and announced he would be tried in federal court.

Prosecutors did not pursue “dirty bomb” allegations in court, but laid out a case based on extensive wiretapping that Padilla was part of a South Florida-based al-Qaeda support cell that had been supplying money and jihadis to wage holy war in Bosnia, Chechnya, Kosovo and Somalia since the ’90s.

A jury of seven men and five women from Miami-Dade County came to its verdict in less than 48 hours. The judge, Marcia G. Cooke, scheduled sentencing for Dec. 5. Padilla is facing 15 years to life in prison, unless he wins his appeal.

Padilla’s lawyers declined to say whether they would move for an appeal, but his mother, Estela Ortega Lebron, indicated she favored this course of action. Attorneys representing Hassoun and Jayyousi say they will appeal the verdict. Kenneth Swartz, a lawyer for Hassoun, tells The New York Times that his client would have been acquitted had Padilla not been added to the case. Appeals will likely be based on these grounds:

† In court filings, Padilla’s attorneys charged that he was kept in solitary confinement in a 9-foot-by-7-foot cell in SC and allegedly subjected to “torture,” including sleep deprivation, exposure to extreme temperatures, sensory deprivation, being chained in painful positions and being injected with mind-altering drugs. As a result, his psychological condition had deteriorated to the point where he was unable to participate or testify in his own defense (his co-defendants did not take the stand, either).

† The prosecution had introduced into evidence a 1997 CNN interview with Osama bin Laden, which the defense contends was “irrelevant” and biased the jury. Prosecutors counter that the video provided context to a wiretapped conversation in which Padilla’s co-defendants seemed exhilarated over the interview:

Yea, Osama bin Laden!” Hassoun, the alleged recruiter for the cell, told Jayyousi in the call.

“Allahu Akbar” (”God is the greatest”), Jayyousi responded, according to a translated transcript of the call. “Please tape it.”

However, The New York Times notes, “Because there is no evidence that Mr. Padilla saw or discussed the interview, Judge Cooke instructed jurors not to consider it evidence against him,” which deflates the defense claim somewhat.

Clearly, this trial is just the start of a lengthy, convoluted trip to the Supreme Court, which will affirm or vacate the verdict on some very narrow procedural issue that will satisfy neither those who believe terrorists are criminals and should be tried in court, nor those who believe terrorists are enemy combatants and should be tried in military tribunals.

Writing in the WaPo, Stanford law professor Jenny S. Martinez, who represented Padilla before the Supreme Court in 2004 and is his attorney in a civil case regarding his treatment while detained as an enemy combatant, argues that terrorists should be tried as criminals:

The conclusion of Jose Padilla’s criminal trial in a federal court yesterday shows that waging the “war on terror” does not require giving up our constitutional values or substituting military rule for the rule of law. …

The trial showed that our federal courts are perfectly capable of dealing with terrorism cases. A federal judge presided over the five-month trial of Padilla and his co-defendants with great care for both the rights of the defendants and for national security. The Bush administration has claimed since Sept. 11 that the federal courts cannot be trusted with terrorism matters. It has argued that we should scrap our centuries-old constitutional protections and replace our system of checks and balances with one awarding the executive complete discretion to lock up whomever he wants, for however long he deems appropriate. The Founders rejected that kind of arbitrary and oppressive power. And the federal court in Florida has shown how weak the administration’s case for abandoning the Constitution really is.

But the WaPo’s editorial page thinks Martinez overreaches a tad:

Does the orderly disposition of Mr. Padilla’s court case prove that every terrorism prosecution can and should be channeled through U.S. courts? No, although civil libertarians will make that case, there will be genuine enemy combatants who may not belong in civilian courts. But every person held by the government - U.S. citizen or not - must have due process to challenge that detention. The presumption must be that U.S. citizens can rely on the federal courts to oversee their prosecutions. And Mr. Padilla’s abhorrent disappearance into limbo should come to be remembered as an aberration never to be repeated.

The verdict in this case notwithstanding, in The Wall Street Journal’s view, no terrorism case should be tried in criminal court:

The quick verdict yesterday suggests that the prosecution’s evidence in the three-month trial was overwhelming and unambiguous. It ought to quiet opponents of the war on terror who claimed that the reason Padilla was originally held as an enemy combatant - because he was believed to have been involved in a plot to set off a radioactive “dirty bomb” in a U.S. city - was a figment of President Bush’s or John Ashcroft’s imagination.

Of course, it won’t. Watch instead as they cite Padilla’s conviction as evidence for another favorite claim: that the civilian criminal-justice system is adequate to the task of preventing terrorism, and thus the military shouldn’t be holding enemy combatants at all.

In fact, Padilla’s case demonstrates the opposite. Before yesterday’s verdict, war foes were sneering that prosecutors weren’t even charging him in the dirty-bomb plot. That is true, but the reason he wasn’t charged for that crime is that the case was procedurally deficient: The military didn’t read Padilla his Miranda rights or provide him a lawyer when it interrogated him. Padilla was convicted instead of conspiracy to murder, kidnap and maim people overseas. That means that if war opponents had their way, and if Padilla had been guilty only of planning to kill Americans on U.S. soil, he would walk free today.

In a somewhat prescient column last week Jonah Goldberg explains the obvious differences between a criminal and a terrorist:

Bank robbers rarely use suicide bombers. Forgers don’t declare war on capitalism, democracy and modernity. Kidnappers rarely behead their victims without asking for a ransom. And when they do ask for ransoms, only rarely do they demand infidels submit to the will of Allah instead of asking for unmarked bills.

These incandescently obvious observations illuminate, in a small way, the resplendent stupidity of the notion that we should treat members of al-Qaida like run-of-the-mill criminals. …

[U]nder our system of law, “criminal” is the most advantageous designation a terrorist can get. It comes with all sorts of rights and rules terrorists can exploit: Miranda, speedy trials, the right to see classified evidence, the benefit of a reasonable doubt, the right to remain silent, etc.

We did not designate al-Qaida “enemy combatants” to elevate their status but to lower it. Under current treaty obligations, if we viewed al-Qaida as actual soldiers, they would be entitled to the protections of the Geneva Conventions even though they reject those conventions themselves. …

We obviously need rules for dealing with people we capture, which is precisely what the Bush administration has been trying to establish. But saying that we should treat terrorists like criminals is to argue for doing less than nothing.

So the Padilla trial was orderly and things worked out the way they “were supposed to” – in sharp contrast to the circus that was the Zacarias Moussaoui trial. Which way would Khalid Sheikh Mohammed’s trial go?

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