THE JOSE PADILLA CONVICTION: A BUSH VICTORY OR A

DEFEAT FOR CIVIL LIBERTIES

Criminal Defense Lawyers for Padilla Argue for Dismissal Due to

Outrageous Conduct of the Government

Jose Padilla was initially arrested in 2002 at the O’Hare International Airport
in Chicago, with a lot fanfare by the U.S. Justice Department, on a charge
that he was involved in a plot to plant a radiological “dirty bomb” in the
United States. He was declared an “enemy combatant” and transferred to
military custody at a naval brig in Charleston, South Carolina. Reportedly,
he was subjected to physical torture, relentless interrogations, and a litany of
other physical/psychological abuses and deprivations over the next three
years before both military and intelligence investigators, as well as federal
prosecutors, concluded there was no “dirty bomb” plot.

Padilla was then turned over to federal authorities in Florida who charged
him, along with two co-defendants, with conspiracy to murder, kidnap, and
maim persons in a foreign country in violation 18 U.S.C. § 956(a)(1) and
conspiracy to provide material support for terrorists in violation of both 18
U.S.C. § 371 and 18 U.S.C. § 2339A to commit a substantive offense under
18 U.S.C. § 2339A. 18 U.S.C. § 371 prohibits conspiracies to commit a
specific offense, as defined by the federal criminal code, against the United
States. An 18 U.S.C. § 2339A offense consists of providing material
support and resources or concealing the nature, location, source, or
ownership of material support and resources, or concealing the nature,
location, source or ownership of material support and sources with the
knowledge and intention that they will be used to facilitate any of the several
enumerated offenses.

Padilla was convicted on August 16, 2007 of one count under § 956(a)(1)
and one count under § 2339(A). The § 956(a)(1) conviction carries a
maximum penalty of life imprisonment. The Padilla terrorism conviction,
reported the Washington POST, handed “a courthouse victory to the Bush
administration, which had originally sought to imprison [Padilla] without a
criminal trial.”
The Bush administration was indeed jubilant. “The conviction of Jose
Padilla – an American who provided material support to terrorism and
trained for violent jihad – is a significant victory in our efforts to fight the
threat posed by terrorists and their supporters,” U.S. Attorney General
Alberto Gonzales said.

The POST reported that “the conviction essentially accomplishes through

the criminal court system what the administration had tried to do five years
ago by executive fiat. For 3 ½ years after he was arrested upon reentering
the country, Padilla was held without charges at a Navy brig in South
Carolina where he was housed in solitary confinement. The tactic drew
fierce criticism from civil liberties advocates.

“Padilla lawyers charged that during his confinement, he was deprived of

sleep, kept in a 9-foot-by-7-foot cell, chained in painful positions and
injected with mind-altering drugs. Those conditions left him unable to
participate in his own defense, the lawyers said.”

The “criminal court system” was not sympathetic to Padilla’s torture claims.
He was arrested in Chicago on May 8, 2002 pursuant to a “material witness”
warrant issued by the United States District Court for the Southern District
of New York in connection with a grand jury investigation following the
September 11 attacks. President Bush on June 9, 2002 declared Padilla an
“enemy combatant” and instructed Defense Secretary Donald Rumsfeld to
take custody of him. That same day Rumsfeld had Padilla transferred to the
navy brig in South Carolina.

On November 17, 2005 a federal grand jury in the Southern District of

Florida indicted Padilla for the § 956(a)(1) and the § 2339A violations.
Three days later President Bush ordered the defense secretary to transfer
Padilla from military custody. The U.S. Attorney requested that Padilla be
transferred to civilian custody and the formal transfer took place on January
5, 2006.

In October 2006 attorneys for Padilla filed a “Motion to Dismiss the

Indictment for Outrageous Government Conduct.” The attorneys alleged that
the tortuous conditions Padilla was subjected to in military custody “shocked
the conscience” in violation of his due process rights. The motion outlined a
laundry list of physical and psychological abuses inflicted upon Padilla at
the Navy brig. The motion argued that the civilian charges should be
dismissed because of this outrageous governmental conduct. See. United
States v. Padilla, et al., 2007 WL 1079090 (S.D.Fla.)[April 9, 2007].

The United States Supreme Court in United States v. Russell, 411 U.S. 423
(1973) held, in dicta, that the court “may some day be presented with a
situation in which the conduct of law enforcement agents is so outrageous
that due process principles would absolutely bar the government from
invoking judicial process to obtain a conviction.” Id., at 431-32. The Russell
court found that the government conduct in that case did not rise to that due
process level.

In Hampton v. United States, 425 U.S. 484 (1976) the defendant attempted
to use the Russell dicta to quash law enforcement misconduct, but the
Supreme Court held that even “[i]f the police engage in illegal activity in
concert with a defendant beyond the scope of their duties the remedy lies,
not in freeing the equally culpable defendant, but in prosecuting the police
under the applicable provisions of state or federal law.” Id., at 490.

Russell and Hampton spawned what is now called the “outrageous

government conduct” doctrine [most of which flow from entrapment
claims]. See, e.g., United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
And despite some courts citing the Russell’s dicta, the Sanchez court said
that “[w]hile the Supreme Court and this Court have recognized the
possibility that government involvement in a criminal scheme might be so
persuasive that it would be a constitutional violation, that standard has not
yet been meet in any case either before the Supreme Court or this court.” Id.,
at 1413. See also: United States v. Tucker, 28 F.2d 1420, 1425 (6th Cir.
1994)[Russell dicta applied only once to bar prosecution by an appellate
court, and that opinion was subsequently disavowed]; United States v. Boyd,
55 F.3d 239, 242 (7th Cir. 1995)[Russell-spawned outrageous governmental
conduct doctrine “does not exist in [the Seventh] Circuit.”].

In addressing the Padilla motion to dismiss based on the Russell dicta, the
district court examined the difficulty of applying the outrageous government
conduct doctrine:

Regardless of whether courts choose to recognize, yet not apply the

doctrine, or reject the doctrine outright, the question comes up almost
exclusively within the context of government involvement in the
defendant's crime and entrapment. Since the doctrine has never been
 effectively applied in any context, courts have had difficulty
ascertaining its precise contours, if any. Interpreting the austere dicta
in Russell, courts have attempted to delineate precisely when
governmental involvement in the crime charged is so substantial and
objectionable, that it should be deemed ‘outrageous.’ See, e.g .,
Sanchez, 138 F.3d at 1413 (holding that although the crime was
“created by the government,” governmental conduct was not
outrageous); United States v. Barbosa, 271 F.3d 438 (3 d Cir.2001)
(holding that governmental complicity in an undercover drug
smuggling operation where defendant swallowed drugs was not
sufficiently outrageous). The guidelines provided by the case law are
often as indeterminate as Russell's dicta, and merely affirm that at
some point governmental involvement in ‘creating’ a crime may rise
to the level of outrageous conduct. See United States v. Santana, 6
F.3d 1 (1st Cir.1993) (“Although it has a comfortably familiar ring,
‘outrageous misconduct’ is surpassingly difficult to translate into a
closely defined set of behavioral norms. The broadest hints as to the
content of the outrageousness standard lie in the dictum that spawned
the doctrine.”); see e.g., United States v. Chastain, 198 F.3d 1338
(11th Cir.1999) (holding that government infiltration of criminal
activity is deemed ‘outrageous' when it violates fundamental fairness
and shocks the universal cause of justice). Id., WL at 3.

The Government argued that Padilla’s motion failed “as a matter of law.”
The district court said it was compelled to accept as true Padilla’s “claims of
abuse and torture at the Navel Brig…” Id. The court then noted that Padilla
had failed to provide the court with a single case where charges had been
dismissed because of “outrageous government conduct.” Id. And while
standing alone this failure did not defeat Padilla’s motion, the court pointed
out that the cases cited by his defense counsel had held that the outrageous
government conduct doctrine can be invoked only when defendant can
demonstrate “both substantial government involvement in the offense and a
passive role by the defendant.” United States v. Gutierrez, Jr., 343 F.3d 415
(5th Cir. 2003). See also: United States v. Blood, 435 F.3d 612 (6th Cir. 2006)
[“to establish outrageous government conduct a defendant must show that
‘the government’s involvement in creating his crime was so great that a
criminal prosecution for the crime violates the fundamental principles of due
process’.”].
In rejecting Padilla’s claim of outrageous government conduct, the district
court concluded:

In one of the few cases cited by defendant where the outrageous

governmental conduct stems from something other than governmental
participation in the charged crime, the court is careful to delineate the
appropriate contours of the claim. In United States v. Boone, 437 F.3d
829, 841-42 (8th Cir.2006), the defendant argued that the attempted
murder charge against her should have been dismissed due to the
outrageous government conduct of an FBI agent. Defendant claimed
that she was threatened, intimidated, verbally abused, and subjected to
other inappropriate conduct by the FBI agent during the investigation
of the crime and the subsequent arrest. The court held “the rule that
outrageous government conduct can foreclose criminal charges has
been applied by our court almost exclusively to situations involving
entrapment, where law enforcement officers have sought to create
crimes in order to lure a defendant into illegal activity that she was not
otherwise ready and willing to commit.” Id. at 842 (quotations
omitted). The court concluded that since defendant “has not even
alleged that any government official had engaged in such conduct [in
the case at bar, defendant] has not shown any due process bar to her
attempted murder conviction.” Id.

Mr. Padilla's failure to cite case law where outrageous government

conduct claims are premised upon post-arrest abuse of the defendant
is of no small moment. In Boone, the Eighth Circuit echoed the
holdings of its sister circuits by articulating that in order to invoke an
outrageous government conduct claim, the government need first
involve itself in the criminal scheme along with the defendant. This
makes practical sense since the claim itself is borne out of due process
concerns. See, Russell, 411 U.S. at 431-32. Thus, a law enforcement
officer may be behaving ‘outrageously’ in certain instances where her
over-involvement in a criminal enterprise “violates fundamental
fairness” or is “shocking to the universal sense of justice.” On these
occasions, due process concerns could preclude prosecution of the
very claim in which the governmental agent was overzealously
embroiled. Thus, courts have noted, that in the rarest of
circumstances, if it was impossible to extract the objectionable
governmental conduct from the crime, the prosecution may need to be
stymied.
Mr. Padilla's claim does not present this scenario. Padilla claims that
his charges should be dismissed due to outrageous governmental
conduct perpetrated after the commission of his alleged crimes.
Padilla seeks this relief despite the fact that the objectionable conduct
occurred during his military detention in connection with his enemy
combatant status. Padilla's argument contains numerous legal
infirmities.

First, the fact that the governmental conduct occurred at a time and
place removed from the crimes charged makes the remedy Padilla is
seeking considerably more attenuated and arbitrary. Short of resorting
to a ‘two wrongs make a right’ judicial process, it is difficult for this
Court to ascertain how the remedy sought emanates from the infirmity
defendant describes. This is considerably distinguishable from a
government entrapment scenario, where the crime that the defendant
is charged with is the crux of the outrageous government conduct
claim.FN7

Second, the outrageous conduct occurred while Padilla was under

military control at the Naval Brig in Charleston, South Carolina. At
this time, Padilla was being held under Presidential orders in
connection with his enemy combatant status and had not been charged
with the crimes he is currently facing. This further attenuates Padilla's
outrageous government conduct claim. Even if Padilla's due process
rights were violated while being held at the Naval Brig as an enemy
combatant, he fails to explain how this violation should result in the
dismissal of distinct crimes that he was not charged with at that point.
FN8

Third, Mr. Padilla fails to explain why suppressing governmental use

of any evidence obtained from him at the Naval Brig is insufficient for
purposes of this trial. In his motion, Padilla acknowledges that the
government has already averred not to seek introduction of any of the
Naval Brig evidence at trial. FN9 Despite summarily rejecting this
remedy as “clearly inadequate,” Padilla fails to support this contention
or explain why his requested remedy is more appropriate.FN10 In fact,
in his motion, Padilla relies heavily on United States v. Toscanino,
500 F.2d 267 (2d. Cir.1974),FN11 a case where the Second Circuit
sanctions this very approach. Padilla's Motion concedes that “the
 court in Toscanino noted that many cases involving due process
violations center on unlawful government acquisition of evidence and
that, in those instances, the proper remedy would be the exclusion of
the tainted evidence.” Def. Mot. at 11. Id., at WL 4-5.

The district court noted that if were to take Padilla’s argument to its “logical
extreme,” it would effectively extend an amnesty to him “for any uncharged
crime so long as the government violated [his] due process rights at some
prior point.” Id. The trial court held that it was not prepared to embrace such
a radical notion.

Despite the fact that the torture issue got lost in the “criminal court system,”
civil libertarians tried to put the best face on Padilla’s conviction. The
Washington POST quoted Howard Simon, executive director of the
American Civil Liberties Union of Florida as saying: “This trial clearly
undermines the Bush administration’s unfounded fear that terrorists cannot –
in their view – be tried in criminal courts. [This verdict proves] that the Bush
administration should close Guantanamo and pursue terrorists in the
criminal justice system, not outside the confines of the rule of law.”

Padilla’s mother was more to point. “No evidence, and they found him
guilty,” said Estela Lebron.

The POST reported that there was only one “key piece of physical evidence”
against Padilla – a “mujahideen data form” which had been recovered in an
al-Qaeda camp in Afghanistan and bore Padilla fingerprints and some of his
personal background information. The POST added that “the other evidence
was the wiretapped calls, of which Padilla’s voice is heard on seven. These,
however, offered few specific clues of his intentions.”

The truth of the matter is that the Government of the United States held Jose
Padilla in a military detention without affording him any constitutional or
civil rights for 3 ½ years, subjecting him to physical and psychological
torture, before putting him on trial in civilian court five years later and
finding him guilty without presenting any significant evidence of guilt.

The Padilla conviction was not a “victory” for the Bush administration. It
was, in fact, a defeat of civil liberties. The Padilla case, and so many of the
other “enemy combatant” cases so designated by the Bush administration,
will one day be recognized as a blight on our constitutional system of
government.