Nearly five years after he was arrested amid dark allegations of a plot to set off a radioactive "dirty bomb," Jose Padilla will finally face trial. After much debate and mystery, he is now charged with supporting a terrorist organization.
The government says Padilla, along with co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi, were part of a cell in South Florida that supported terrorist groups operating in Bosnia, Chechnya and Afghanistan.
The most serious charge — conspiracy to murder, kidnap and maim persons in a foreign country — carries a potential life sentence.
The words "dirty bomb" are nowhere to be found in the indictment or the charges. But, as jury selection begins, Stephen Vladeck, a University of Miami law professor, says they're very much on the minds of Padilla's lawyers.
"It would be hard for a juror in this case to not have heard anything about Padilla," he says. "And what's likely is what they've heard about Padilla is he is the dirty-bomber. In a way, that's bad for the defense because it's starting from the sort of perception that this is a bad guy. But at the same time, it's also not necessarily great for the government. There's at least the appearance that the government hasn't been able to get its story straight."
Questions also have been raised about the circuitous route the government took in bringing Padilla's case to trial. After he was designated an enemy combatant by President Bush, Padilla spent the next three and a half years in military custody in a Navy brig in South Carolina.
After the Supreme Court ruled in another case that American citizens cannot he held without being charged, without access to counsel and some due process of law, the government transferred Padilla to the civilian courts. He was added to a criminal indictment already filed in Miami.
Much of the prosecution's case will be based on intercepted phone conversations between Padilla and the other defendants. Another key piece of evidence is an application to attend an al-Qaida training camp, allegedly filled out by Padilla and acquired by a CIA agent in Afghanistan shortly after the U.S. invasion in 2001.
The prosecution wants the agent to testify anonymously, wearing a disguise.
Prosecutors say they have no plans to introduce at trial any information gathered from interrogations during Padilla's time in military custody, in part because it's doubtful the court would rule it's admissible.
Even so, the defense has worked hard to make those years in the brig part of this case. While there, Padilla was held in extreme isolation, subjected to sleep and sensory deprivation, conditions his lawyers say amounted to torture.
David Rivkin, a lawyer formerly with the Justice Department, thinks the government will have no trouble making its case against Padilla as long as it convinces the jury that allegations about how he was treated in the brig have no bearing on this case.
"I think the defense would be largely arguing emotion and then sentiment and the prosecution would argue the facts," Rivkin says.
The defense says that because of his time in the brig, Padilla suffers from Post-Traumatic Stress Disorder and is not competent to stand trial. Federal Judge Marcia Cooke rejected a series of defense motions that sought to dismiss the charges on those grounds and several others — motions that further delayed the trial.
Vladeck, the University of Miami law professor, says that even though none of the motions were successful, they still served an important purpose for the defense. They got information about Padilla's three and a half years in the brig, and the treatment he received there, into the court record.
The trial of Jose Padilla and his two co-defendants is expected to take at least four months.