Expect the specter of Osama bin Laden and the torture of detainees to be raised Tuesday during oral arguments in the appeals by reputed dirty bomber Jose Padilla and two co-defendants convicted of sponsoring terrorism abroad.
The arguments come just a few weeks after the failed Christmas Day attempt by a Nigerian man linked to the terrorist group al Qaeda to blow up an American airliner.
Foremost among the issues before a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta is a decision by the trial judge to allow jurors to see a videotape of al Qaeda leader bin Laden.
Attorneys for Padilla, Adham Hassoun and Kifah Jayyousi say the trial was forever tainted when the videotape was played because it linked the defendants to the worst terrorist attack on U.S. soil even though they were charged with other crimes.
"The error in the admission of the bin Laden video arose out of tying the architect of the horrific attacks of September 11, 2001, to a case that, as to all defendants, involved conduct which predated these attacks," Padilla's attorney, Assistant U.S. Federal Defender Michael Caruso, argues in his brief.
Miami attorney Ken Swartz, who represented Hassoun, said it was a devastating day for the defense when the video was shown.
"They got to see bin Laden, and here he is with his anti-United States venom," Swartz said. "We felt it was very harmful because Sept. 11 was on everybody's mind."
The three men were convicted in 2007 of conspiracy to murder, kidnap and maim overseas. Prosecutors said they were part of a South Florida-based terrorism support cell that sent money to mujahedeen to fight a holy war for Muslims.
"During the 1990s and into 2001, violent Islamists traveled from the Middle East, North America and elsewhere to fight in regional conflicts, providing al Qaeda and other foreign extremists the chance to promote radical Islam," Assistant U.S. Attorney John Shipley of Miami wrote in the government's appellate brief.
U.S. District Judge Marcia Cooke was heavily criticized in some circles for showing leniency in sentencing the men, giving Padilla more than 17 years in prison and pointedly taking time off for his treatment at the hands of U.S. authorities.
Padilla spent about two years in a windowless cell at a Navy brig in South Carolina. Interrogators used sensory and sleep deprivation and shackled him for hours.
Adham Hassoun, of Lebanese descent, is serving an almost 16-year sentence, and Kifah Jayyousi, a Jordanian citizen of Palestinian descent, was sentenced to almost 13 years. Both men contend they gave only humanitarian aid to Muslims in war-torn Eastern European countries like Bosnia in the 1990s.
Hassoun and Jayyousi say they are scapegoats in the U.S. war on terror and contend their constitutional rights were disregarded during the trial.
Padilla, who has tenuous ties to his co-defendants, ended up spending three years in solitary confinement as a designated enemy combatant after he was arrested at Chicago's O'Hare Airport. He was accused of but never charged with plotting with senior al Qaeda operatives to detonate a radioactive dirty bomb in the United States.
Prosecutors indicted Padilla in 2005 as a member of a North American support cell with Hassoun and Jayyousi. The indictment did not mention a dirty bomb.
Padilla, a former Chicago gang member recruited by al Qaeda, still believes his own attorneys are government agents.
Caruso argues in briefs that even though Padilla was found to be competent to stand trial, he was hardly helpful to his own defense and remains mentally and physically damaged by the torture he endured. He is unsure if his attorneys "working on his case are actually his attorneys or another component of the government's interrogation scheme," Caruso wrote.
He did not return phone calls for comment by deadline. Neither did Jayyousi's attorney, Matt Hellman of Jenner & Block in Washington, D.C.
The appellate panel is likely to hear arguments on a number of other issues challenging Cooke's rulings. A lawyer for each defendant will get 30 minutes to address the panel.
Near the top of the list for all defendants is the judge's decision allowing FBI agent James T. Kavanaugh to interpret code words on wiretapped conversations, telling jurors "tourism" meant "jihad."
Even though Cooke ruled Kavanaugh wasn't an expert, she allowed him to draw conclusions about the meaning of words on the wiretaps, Swartz said.
"The meanings he gave were misconstrued. They were devastating," he said.
Hellman's brief said, "Kavanaugh's purported translation of code words thus went far beyond the other evidence before the jury, and it was the key to the government's case."
But why use code words at all if the men were involved only in humanitarian aid?
Swartz said some of the taped conversations were with an Egyptian man who could face political persecution.
He said another key argument will be the exclusion of a statement from a man named "Uways" who told authorities that Padilla was recruited and eventually trained by al Qaeda operatives not associated with Hassoun and Jayyousi.
Cooke ruled the statement was hearsay and kept it out of trial.
Considering the number of complex issues that don't normally arise in Miami criminal cases, the appellate panel will have its hands full. Swartz said he is confident the panel can sort through the arguments and will be up to speed on the immense background of the case.
Caruso told the court that the prosecution case was nothing but a bunch of loose threads woven together with Sept. 11 fear mongering.
"The government's case rests on bare threads of evidence, threads that do not tie together to establish the conspiracy to murder, maim or kidnap," his brief said.
