After the contents of Jose Padilla’s seven taped conversations leaked to the New York Times, and before the actual trial began,  Federal District Court Marcia Cooke’s imposed a gag order on both the prosecution and defense in the conspiracy case against Jose Padilla and two others: thou shalt not refer to in any manner, shape or form to Jose Padilla’s three-and-a-half years in a Naval brig in solitary confinement, where he was tortured and subjected to endless interrogations. 

FBI Special Agent Russell R. Fincher of the FBI’s New York office who happened to meet the plane Jose Padilla at O’Hare International Airport May 8, 2002 was on the stand five years later,  testifying that he was dead certain that when  he heard an audio tape voice on the phone – he could positively identify it as belonging to Jose  Padilla.  As The Los Angeles Time’s Carol J. Williams reports it:

[FBI agent] Fincher made the statement even though he had no recording of the 5 year old interview to compare with the wiretap calls.

The agent wasn't allowed to say why he was so sure: He also interrogated Padilla during the defendant's 3 1/2 years in detention as an enemy combatant at the Navy brig in Charleston, S.C….
           
Fincher's assurances to the jury that he could identify Padilla's voice in the Arabic language recordings probably would have been more convincing if he could have mentioned the frequency and duration of conversations with Padilla recorded after his arrest. (Emphasis added.)

Because of Judge Cooke’s gag order, what the jury never heard was how Agent Fincher had listened on many occasions to Padilla during the three-and-a-half years of interrogations conducted at the Navy brig in Charleston, S.C.  where Padilla was confined, questioned and tortured. Fincher also couldn’t make reference to the 27 existing videotapes of Padilla’s interrogations because those tapes have been consigned to silence – gagged, so to speak, presumably with the idea that jury members would be unable to listen/and watch them and judge for themselves. Wouldn’t it have been easy for the jurors to come to their own conclusions by first, listening to the tape of Padilla talking with his “co-conspirators” and then the tapes of the “confessions” he made during his stay in the brig? 

Judge Cooke’s gag order has created a herd of “silent elephants in the courtroom .” These areas of silence also explain our bewilderment earlier over the way one witness for the prosecution, Yabba Goba, has apparently changed from a freedom fighter seeking to help his oppressed Muslim brothers in Kosovo  to a  “confessed terrorist.”

Yabba Goba,, now seeking leniency, was one of the Lackawanna Six – all of whom admitted they were guilty of providing material support or resources to a designated terrorist organization. The” resource” Goba provided consisted of himself, trained, as he contended, at a camp similar to the one Padilla was alleged to have attended.  Goba and his compatriots could have fought the government’s accusations, but if they did, their lawyers were informed,  they’d wind up exactly like Padilla, as an enemy combatant.       

The political climate for Goba — and the Lackawanna Six — had been poisoned, just as it has been for Padilla. “One by one we’re hunting the killers down, setting the scene for a conviction,”  President Bush said of Goba and the five others taken into custody. Deputy Attorney General Larry D. Thompson  blanketed the nation with his fearmongering. “Terrorism and support of terrorists is not confined to large cities. It lurks in small towns and rural areas.” Remarks like that are, well, remarkably effective. 

"The defendants believed that if they didn't plead guilty, they'd end up in a black hole forever," said Neal R. Sonnett, chairman of the American Bar Association's Task Force on Treatment of Enemy Combatants. "There's little difference between beating someone over the head and making a threat like that.” quoted byMichael Powell of the Washington Post

Two of the Lackawana six were veterans of the war in Bosnia.  As such they offer a new perspective on the way yesterday’s allies can become today’s enemies.  Robyn Blumner of the St, Petersburg Times noted  in the indictment, that Padilla was alleged to have been part of a “North American support cell for a group of radical Islamic jihadists that ostensibly underwrote and provided recruits for terrorist activities in Kosovo, Chechnya and Somalia.”       

The indictment accuses the defendants [Padilla, Hassoun and Jayyousi] of supporting Muslim terrorism in Kosovo in the late 1990s. At that time, Muslim fighters under the umbrella of the Kosovo Liberation Army were using violence to fight Serbian nationalists. It had been named a terrorist group by the United States, yet by 1999 the United States was working alongside the KLA, if not providing direct support to the group. That year, President Clinton initiated a NATO air war to end the ethnic cleansing of the Muslim population in Kosovo. After the hostilities ended, many in the KLA became part of the new government.

“Legends in the Law” attorney Philip Lacovara — whose jobs have included “deputy solicitor general, counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski” plus more than a dozen cases in the U.S. Supreme Court, including the biggie, United States v. Nixon in 1974 –is in a unique position to comment on the way labels can change.

One man's terrorist is another man's freedom fighter. This is one reason why the UN is still having trouble coming up with a final draft of a Convention Against Terrorism. Many ‘emerging nations’ recall the ‘wars of national liberation’ that they fought to expel colonial powers. Their tactics often involved what could be called terrorism — organized violence directed at civilians or civilian infrastructure in order to achieve political change”

Lacavora has observed the way shifting alliances in Bosnia and Afghanistan re-defined freedom fighters as terrorists.        

“In addition to the situation in Kosovo — by the way, I was a trial observer in 1984 at the Belgrade trial of of some intellectuals who were agitating for more autonomy for Kosovo — one should remember Afghanistan during the Soviet occupation. The US actively – albeit covertly – supported the Taliban in their military operations (and provided caches of weapons later used against us). Strategic considerations changed, and the Taliban freedom fighters became ‘terrorists.’ Of course, they were the same brutal and fanatic warriors then as they are now, but when they turned their wrath on the West — and the US in particular — their classification changed. 

“The Padilla prosecution illustrates a truism of modern international politics. When a private citizen elects to support the military or quasi-military (‘militant’) activities of a foreign group, the person acts at his peril, even if he thinks that the group's interests coincide with those of the US government. In addition, the mere fact that the government chooses to work with or through that foreign group for the government's own strategic purposes does not license private citizens to involve themselves in those militant activities.”

The fact is that American no longer hear about beleaguered Muslims in places like Kosovo, even though they continue to be oppressed and murdered there. So anyone training to help those oppressed peoples no longer can wear the proud badge of freedom fighter. Such individuals, at least in the minds of the present Justice Department,  like Goba and others, are clearly terrorists.

In the minds of American citizens (and the jury, the prosecution hopes) –  that puts Goba (and by implication, Padilla) in the same category as the suicide bombers now blowing up our soldiers and innocent civilians in Iraq.  That makes Goba guilty. That makes Padilla guilty. It becomes a trial by labels. 

With so much of the evidence in this case consigned to lurking in silence, labels are all we have.  Or can we expect the 12 good men and women in the Miami courtroom to have the dispassionate attachment to a concept of justice that Lacavora exhibits?       

By the end of the summer, when the Padilla trial concludes, we’ll have the answer to that question.  Or maybe you think you have the answer already.       

(With Rachel M. Koch)

Lew can be reached at lew dot koch at gmail dot com.