Jose Padilla, a former Chicago gang member and convert to Islam, was arrested on May 8, 2002, at O’Hare Airport in Chicago for suspicion of planning to explode a radiological dispersion device, or “dirty bomb” (an explosive containing radioactive material) in the United States. A month later, he would become the first American citizen arrested on U.S. soil to be declared an
“enemy combatant,” and then was held indefinitely without trial or charging him with a crime.
This led to a legal confrontation between the Bush Administration and Padilla’s attorneys as well as various civil liberties groups that lasted several years and reached all the way to the U.S.
Supreme Court. The constitutional issues involved the extent to which the President, as commander-in-chief, has the authority to take extraordinary measures for the security of Americans even if those measures infringe on an accused citizen’s access to legal counsel and relief from unlawful detention (habeas corpus).770
766 Ibid.
767 Ibid.
768 Ibid.
769 Dan Herbeck, “Yemen Holds Lackawanna 6 Figure,” Buffalo News, Jan 20, 2010, http://www.buffalonews.com/
2010/01/20/929584/yemen-holds-lackawanna-6-figure.html.
770 For a detailed discussion, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia.
The government’s initial suspicions about Padilla were based on information provided to interrogators by Abu Zubaydah, a senior official of Al Qaeda who was in American custody at an undisclosed location overseas. He did not name Mr. Padilla but described him physically and referred to him as a Latin American man who went by a Muslim name. Intelligence agents then were able to link the name given by Abu Zubaydah to “an Arab alias not mentioned by the detainee.” That “alias” led the agent to Mr. Padilla’s Florida driver’s license. The photo on that license was shown to “a detainee,” presumed to be Abu Zubaydah, who confirmed that Mr.
Padilla was the “Latin American” he had been describing.771
Padilla remained in custody for one month after his arrest in May 2002 on a material witness warrant. But, Justice Department officials faced a deadline to release him pursuant to laws that protect U.S. citizens from indefinite detention. They were also confronted with the challenge of making a case against Padilla that would stand up in court without bringing Abu Zubaydah or other captured Al Qaeda officials into an American courtroom.772 Instead, on June 9, 2002, President George W. Bush approved Padilla’s reclassification as an “enemy combatant,” which would not entitle him to trial in civilian courts. He was transferred after midnight to the brig of a South Carolina naval base, where he was held incommunicado, not even allowed visits from his attorney, for over 3-1/2 years, most of which was spent in solitary confinement.773
In announcing Padilla’s May arrest, then-Attorney General John Ashcroft announced at a June 10, 2002, news conference, “We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.” He added that the government’s suspicions about Padilla’s plans came from “multiple, independent, corroborating sources.”774
But shortly thereafter, CBS News reported that FBI sources were “backing off” Ashcroft’s assertion that there was a specific, developed, and real plan to use a “dirty bomb” in the United States. According to one law enforcement official speaking on condition of anonymity, “FBI’s investigation has produced no evidence that Padilla had begun preparations for an attack and little reason to believe he had any support from Al Qaeda to direct such a plot.”775
Dale Watson, who was then FBI’s executive assistant director for counterterrorism, read the complete file on Padilla and later said, “My recollection was that this was a rather weak case.
There was some information, but it needed a lot more work on the investigative side to flesh out all the facts.”776
On June 1, 2004, DOJ responded to a written request by Senator Orrin Hatch, then the chairman of the Senate Judiciary Committee, “asking the Department of Justice and the Department of
771 Deborah Sontag, “Terror Suspect’s Path From Streets to Brig,” New York Times, April 25, 2004,
http://www.nytimes.com/2004/04/25/us/terror-suspect-s-path-from-streets-to-brig.html. Hereinafter: Sontag, April 25, 2004.
772 This factor was acknowledged by then-Deputy Attorney General James Comey. See “Transcript of News Conference on Jose Padilla,” CNN.com, June 1, 2004, http://edition.cnn.com/2004/LAW/06/01/
comey.padilla.transcript/. Hereinafter: Transcript of News Conference, June 1, 2004.
773 New York Times, “Times Topics: Jose Padilla,” March 6, 2009, http://topics.nytimes.com/top/reference/timestopics/
people/p/jose_padilla/index.html.
774 Dan Collins, “'Dirty Bomb’ Suspect A Nobody?” CBS News, Aug 14, 2002, http://www.cbsnews.com/stories/2002/
08/27/attack/main519996.shtml.
775 Ibid.
776 Sontag, April 25, 2004.
Defense to supply whatever information [they] could about American citizens being held as enemy combatants here in the United States.”777 In addition, then-Deputy Attorney General James Comey held a news conference where he laid out a detailed summary of the government’s case against Padilla. The case was largely derived from statements made by Padilla himself while he was interrogated in military custody, but which Comey claimed was substantiated by other sources. At the news conference, Comey traced Padilla’s travel through Egypt, Yemen,
Afghanistan, and Pakistan. He identified Al Qaeda officials he met, which included not only Abu Zubaydah, but Al Qaeda military commander Mohammed Atef and 9/11 mastermind Khalid Shaikh Mohammed. He also described the training Padilla received and terrorist plots discussed including one to blow up apartment buildings in the United States using natural gas as well as an attack using a dirty bomb.778
Comey also noted that the government could not make a case against Padilla through the criminal justice system when he was originally arrested two years before “without jeopardizing
intelligence sources.”779 But, he went on to say that the questioning of Padilla was not undertaken to try and make a criminal case against him. “It was done to find out the truth about what he knew about Al Qaeda and threats to the United States.”780
Soon after Padilla was declared an enemy combatant, his appointed counsel filed a habeas corpus petition on his behalf. The case eventually reached the Supreme Court, which held that Padilla had filed his habeas petition in the wrong court. In 2004, Padilla’s counsel filed a new habeas corpus petition in the U.S. District Court for South Carolina. The District Court ruled that Padilla’s detention had not been authorized by Congress and was therefore unlawful. The government appealed to the Fourth Circuit. On September 9, 2005, the Fourth Circuit Court of Appeals in Richmond, Virginia, reversed the trial court’s decision and held that the president was authorized to detain enemy combatants under the Authorization of Use of Military Force passed by Congress in the wake of September 11. Padilla then filed a petition for certiorari781 in the United States Supreme Court.782
In November 2005, while the Supreme Court was considering Padilla’s petition for review, the Bush Administration suddenly announced that criminal charges had been filed against him in federal court in Miami. The new indictment made no mention of the dirty bomb or most of the other original charges. Instead, Padilla was charged with being part of a “North American support cell” that worked to support violent jihad campaigns in Afghanistan and elsewhere overseas from 1993 to 2001.783
777 Transcript of News Conference, June 1, 2004.
778 Ibid.
779 Ibid.
780 Ibid.
781 Certiorari is the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court.
782 Padilla v. Hanft, American Civil Liberties Union of Virginia, November 30, 2006, http://www.acluva.org/docket/
padilla.html.
783 See Michael McGough, “How Do You Solve a Problem Like Padilla?” Pittsburgh Post-Gazette, January 2, 2006, http://www.post-gazette.com/pg/06002/631159-108.stm#ixzz0pA44Cy40. Hereinafter, McGough, January 2, 2006.
The government then asked the Fourth U.S. Circuit Court of Appeals to vacate its decision upholding Padilla’s confinement.784 The Fourth Circuit refused to vacate its order or approve of Padilla’s transfer from military to civilian custody. In an opinion by Judge J. Michael Luttig, the Fourth Circuit worried about “an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.”785 Judge Luttig also “chastised the
administration for using one set of facts to justify holding Padilla without charges and another set to persuade a grand jury in Florida to indict him.”786
Padilla’s attorneys, in the meantime, sought to have the criminal charges against him dismissed on the grounds that the psychological damage he suffered during his confinement from abuse and extreme isolation had left him incompetent to stand trial. The judge in the case denied the motion, without ruling on the merits of the defense accusations of abuse. The criminal trial began in September 2006.787
Padilla was convicted on August 16, 2007, along with two co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, of conspiracy to murder, kidnap and maim people in a foreign country. In January 2008, Padilla was sentenced to 17 years and four months in prison while his co-defendants were given shorter sentences.788 In September 2011, the United States Court of Appeals for the Eleventh Circuit, in Atlanta vacated his sentence, deeming it too lenient.789