August 19, 2007


Padilla Case Offers New Model of Terrorism Trial (ADAM LIPTAK, 8/19/07, NY Times)

The Justice Department’s strategy in the trial itself, using a seldom-tested conspiracy law and relatively thin evidence, cemented a new prosecutorial model in terrorism cases.

The central charge against Mr. Padilla was that he conspired to murder, maim and kidnap people in a foreign country. The charge is a serious one, and it can carry a life sentence. But prosecutors needed to prove very little by way of concrete conduct to obtain a conviction under the law.

“There is no need to show any particular violent crime,” said Robert M. Chesney, a law professor at Wake Forest University and the author of a recent law review article on conspiracy charges in terrorism prosecutions. “You don’t have to specify the particular means used to carry out the crime.”

Indeed, the strongest piece of evidence in Mr. Padilla’s case was what prosecutors said was an application form Mr. Padilla filled out to attend a training camp run by Al Qaeda in Afghanistan in 2000.

“It is a pretty big leap between a mere indication of desire to attend a camp and a crystallized desire to kill, maim and kidnap,” said Peter S. Margulies, a law professor at Roger Williams University who has also written on conspiracy charges in terrorism prosecutions.

The conspiracy charge against Mr. Padilla, Professor Margulies continued, “is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime.”

Prosecutors have long loved conspiracy charges in all kinds of cases. Judge Learned Hand, widely thought to be the greatest American judge never to sit on the Supreme Court, called conspiracy “that darling of the modern prosecutor’s nursery” in a classic 1925 decision. More recently, Judge Frank H. Easterbrook, now the chief judge of the federal appeals court in Chicago, lamented that “prosecutors seem to have conspiracy on their word processors as Count I.”

But recent terrorism prosecutions are doing more than using an old tool with new aggressiveness, legal experts said. They are also using it for a new purpose: preventive detention.

When the indicated desire is to destroy the Republic it would be anticonstitutional to protect it.

Posted by Orrin Judd at August 19, 2007 8:48 AM

"It is a pretty big leap between a mere indication of desire to attend a camp [run by violent terrorists] and a crystallized desire to kill, maim and kidnap."

No, it's not. It's no more of a prosecutorial leap than it is to charge an adult man with a crime for setting up a date with a "14-year-old girl" he met online. The true intention is obvious in both cases.

Posted by: PapayaSF at August 19, 2007 12:40 PM

Al Qaeda had application forms? I wonder if you had to include your SSN and get it notarized?

Posted by: Brandon at August 19, 2007 2:33 PM