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Faced with the uncertain implications of three U.S. Supreme Court decisions related to the administration’s war on terror, the Justice Department is considering charging accused terrorist and American citizen Jose Padilla in an active criminal case now unfolding in South Florida. According to two Justice Department sources, the U.S. Attorney’s Office in Miami is preparing to indict Padilla on terror-related charges. However, the indictment is unlikely to include the most sensational allegations against Padilla � that he plotted with top leaders of al Qaeda to detonate a nuclear device in a U.S. city or blow up apartment buildings. The filing of an indictment, which would come on orders from the White House, would effectively end Padilla’s two-year status as a military detainee, and would give the government what might be its best chance to make a case against him. No final decision has yet been made, government sources say. Barry Sabin, head of the Justice Department’s counterterrorism section, declined to comment through a spokesman. The possibility of an indictment against Padilla in the Southern District of Florida was first reported last week in the Miami Daily Business Review, a sister publication of Legal Times. Last week’s Supreme Court rulings on the constitutional rights of enemy combatants have narrowed the administration’s options and now present the Justice Department with a legal Scylla and Charybdis � on one side, a risky litigation strategy defending Padilla’s continued detention; on the other, a criminal prosecution complicated by the government’s lengthy detention and interrogation of Padilla without letting him see a lawyer. At a June 1 press conference, Deputy Attorney General James Comey acknowledged that prosecutors would face limitations as to what evidence could be used to support future criminal charges against Padilla. “I don’t believe we can use his statements made in military custody against him,” Comey said. “So if there’s a criminal case to be made separate and apart from that, perhaps that’s an option.” He added, “I don’t believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel.” Comey said the administration decided not to prosecute Padilla initially in order to interrogate him and gather intelligence about possible terrorist threats � without the interfering presence of a lawyer who might have counseled Padilla to not incriminate himself. Last week, the Supreme Court failed to rule on the constitutional questions posed by Padilla’s case, instead holding 5-4 that Padilla’s attorneys filed his habeas corpus petition in the wrong federal district court. The Justice Department can buy time if it continues to defend Padilla’s detention, but the government’s legal position has been significantly eroded by last week’s Supreme Court ruling in the case of American citizen Yaser Esam Hamdi. In that case, five justices upheld the government’s detention of Hamdi, who was picked up fighting with the Taliban in Afghanistan, but ruled that he must be given an opportunity to challenge his detention before a “neutral decisionmaker.” The decision left open the possibility that even greater protections might exist for an American citizen apprehended on U.S. soil. If the government decides to abandon its court fight and instead prosecute Padilla, the case will present numerous legal obstacles and expose the conditions of Padilla’s lengthy detention and interrogation to the kind of public scrutiny that the administration might prefer to avoid. “Either route is a risky route for the government,” says Georgetown University Law Center professor David Cole. “The biggest issue in any criminal prosecution will be that everything they have learned as a result of their detention of Padilla and their detention and interrogation of al Qaeda leaders abroad is inadmissible in court,” Cole says. Under the so-called fruit-of-the-poisonous-tree doctrine, not only are Padilla’s own statements likely to be inadmissible but also any evidence discovered as a result of his interrogation. “It’s going to be very, very hard for the government to show that any evidence is not tainted by these interrogations,” Cole says. To further complicate matters, government lawyers may encounter evidentiary problems similar to those that have plagued the prosecution of alleged Sept. 11 co-conspirator Zacarias Moussaoui. Like Moussaoui, Padilla is likely to seek access to high-level al Qaeda operatives held overseas, including Khalid Sheikh Mohammad and Ramzi Bin al-Shibh. The administration has forcefully resisted such efforts, citing national security concerns. New York criminal defense lawyer Joshua Dratel says that if he represented Padilla, he would certainly request access to high-level detainees. “If the government tried to put in one piece of evidence from a detainee, I would ask to cross-examine,” Dratel says. In addition, Dratel says he would raise challenges related to speedy trial issues and other due process concerns. “The government has held Padilla for two years. They haven’t given him a trial. They haven’t let him see a lawyer. They’ve killed some of his witnesses. They compromised other witnesses. There are significant constitutional issues,” he says. To avoid fruit-of-the-poisonous-tree and other evidentiary problems, any indictment filed against Padilla is likely to be limited in scope. “They’d have to structure their case by relying on statements from people they’re willing to give Padilla access to and put on the stand,” says Joseph Onek, director of the Liberty and Security Initiative of the Constitution Project. “I assume there probably are such people.” After he is indicted, Padilla’s detention at the Navy’s Consolidated Brig in Charleston, S.C., would end. He would presumably be turned over to civilian authorities by the Department of Defense and be brought to Miami for arraignment and trial. FLORIDA CONNECTIONS Padilla, a Brooklyn native and convicted gang member who converted to Islam as an adult, was arrested on a material witness warrant May 8, 2002, at Chicago’s O’Hare International Airport after flying in from Egypt. He was allegedly carrying $10,000 in al Qaeda cash, as well as the telephone numbers of known al Qaeda operatives. On June 9, 2002, Padilla was designated an enemy combatant and transferred to the military brig in Charleston. Two separate Justice Department sources say that Padilla, a U.S. citizen who lived near Fort Lauderdale, Fla., in the mid-1990s, may be charged in a superseding indictment in the terror case against a former friend, Adham Amin Hassoun. Hassoun, a Sunrise, Fla., computer programmer, has also been in federal custody for two years. He faces more than 50 years in prison on charges of gun possession, lying, and obstruction of justice related to his alleged efforts to promote “global jihad.” Hassoun, who is detained without bond in the Palm Beach County Jail in South Florida, has pleaded not guilty. In a recent interview with American Lawyer Media, Hassoun acknowledged that he crossed paths with Padilla in the 1990s, when they attended the same Fort Lauderdale mosque. While it isn’t known what crimes Padilla would be charged with in connection to Hassoun’s case, prosecutors in Florida have been exploring Hassoun’s ties to Islamic charities accused of funding terrorists. There are links between the two men. For instance, in 1998, when Padilla flew from Miami to Cairo, where he spent the next 18 months, Hassoun helped raise money for Padilla’s airline ticket and helped him get settled in Egypt. Over the next two years, Padilla telephoned Hassoun several times. Hassoun says that the conversations amounted to small talk about Padilla’s new life in Egypt � how he had learned Arabic, had taught English in a local school, had gotten married, and had fathered a child. “I didn’t talk more than five times with Padilla,” Hassoun says. But U.S. national security agents apparently bugged those calls. Hassoun says that transcripts were among the more than 10,000 pages of declassified Foreign Intelligence Surveillance Act intercepts released to comply with pretrial discovery requirements. They remain hidden from public view by a protective order. According to one Justice Department source, President George W. Bush will personally decide whether federal prosecutors in Miami will ask a grand jury to name Padilla as a Hassoun co-defendant. “It’s an important decision,” the source says. The federal prosecutor in Hassoun’s case, Assistant U.S. Attorney Russell Killinger, has told a federal judge that new charges are likely to be filed in Hassoun’s case through a superseding indictment as early as mid-July. Killinger declined to discuss the matter or to confirm that Padilla is a target. Newly appointed U.S. District Judge Marcia Cooke of the Southern District of Florida would preside over the case. New York lawyer Donna Newman, Padilla’s court-appointed attorney, did not say whether she knows if her client will soon be charged. “We’d heard rumors,” she says. Newman says she will file a habeas corpus petition in South Carolina this week and will seek a hearing “as soon as possible.” Newman, who spoke with Padilla last week after the Supreme Court issued its decision, says she and her client feel optimistic. “It’s hard not to be positive after a decision like that, after the fight we’ve had.” Dan Christensen is a staff writer for the Miami Daily Business Review.

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