U.S. Breaks Old Legal Ground

This is where Jose Padilla was first arrested. A short, chubby kid, he was picked up by police for everything from stealing a doughnut to killing a rival gang member. He lived across from his old grade school, where teachers viewed him as “silly and disruptive.”

Here too is where he stepped off a flight from Pakistan last spring and into the grasp of federal agents on the jetway at O’Hare International Airport. The attorney general of the United States labeled him a “known terrorist” who was planning an attack with a radioactive “dirty bomb” that could cause “mass death and injury.”

For six months now, he has been hidden away, not charged and not released. He was taken first to New York to appear before a federal grand jury investigating the Sept. 11, 2001, terrorist attacks, and since then has been held in the brig on a military base in South Carolina.

At first, it appeared that the U.S.-born Padilla fit in the same legal category as John Walker Lindh, the “American Talib” -- that he would face federal criminal charges, be entitled to a lawyer and have his day in court, as any U.S. citizen would.

But the federal government concluded that Padilla is a wartime security threat and has held him without charge. Atty. Gen. John Ashcroft, citing World War II legal precedents, contends that in wartime the nation has authority to take extraordinary steps to protect the public.

Padilla’s case has attracted the attention of civil rights groups such as the American Civil Liberties Union, which have asked a federal district judge in New York to “charge him or release him,” in the words of attorney Donna R. Newman. Judge Michael B. Mukasey is expected to rule any day now.

So far, little is known about the government’s evidence against Padilla because of the lack of legal paperwork. An affidavit from a Defense Department official indicates, however, that much of it was gathered after senior Osama bin Laden lieutenant Abu Zubeida was captured in Afghanistan in March and began talking to U.S. interrogators.

Padilla -- born in Brooklyn, N.Y., raised in Chicago, married in South Florida and arrested on U.S. soil -- has been afforded fewer legal rights than such notorious foreign-born terrorist suspects as Zacarias Moussaoui, the Frenchman accused of being the would-be 20th hijacker, and Richard C. Reid, the British “shoe bomber” caught in the act of trying to blow up a commercial jetliner in flight. Both were charged in court and have had lawyers arguing their cases.

Padilla is being handled differently than Lindh, the only other born-and-bred American suspect in the post-Sept. 11 investigations. The Marin County youth who was captured on the battlefields in Afghanistan was prosecuted in federal court in Virginia. Once threatened with the death penalty, Lindh, with a top-flight lawyer retained by his affluent family, agreed to a 20-year prison term.

Padilla’s limbo status most closely resembles that of Yasser Esam Hamdi, who was born in Baton Rouge, La., and moved to Saudi Arabia as a child with his parents. Captured in Afghanistan, Hamdi was taken to the U.S. prison camp for terrorist suspects at Guantanamo Bay, Cuba, and is being held without charge at a military brig in Virginia. Authorities said he holds dual U.S.-Saudi citizenship.”One of the most remarkable aspects of this case,” said Steven R. Shapiro, ACLU legal director, “is that the government has offered no cogent explanation for its decision to treat Padilla differently.”

A highly placed official in the Justice Department, who requested anonymity, said: “In wartime, you have options. You do what is best for the nation’s security.”

For now, the government has no plans for Padilla. Even if Mukasey orders them to act, the government likely will appeal.

“People say he’s a small fish,” the Justice official said. “Well, the small fish are the ones who do the most damage. Osama bin Laden is not going to come over here and strap on dynamite and blow himself up.

“But Padilla was in the process of planning this dirty-bomb attack.... He was going to look for sites that would be good targets. He was looking for places where they could get the material for the bomb.”

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He was born to Puerto Rican parents. His mother, friends and relatives said, had four children, and his father died when he was a child.

They moved to Chicago before Padilla was 5. His mother took low-paying jobs at hotels, and the family lived in a small two-story gray-stone. The young Jose slept on a bunk in a cramped room near the kitchen.

The home sits across from Darwin Elementary School in Logan Square on Chicago’s near northwest side. The neighborhood was 90% Latino, mostly poor Puerto Ricans, when young Padilla was trudging to class in the late 1970s and early 1980s.

School counselor Art Ryden can still hear the boy speaking English with no accent. But mostly he recalls Padilla’s eyes, his dark-marble stare, and his early flirtation with such groups as the Imperial Gangsters and the Latin Monsters.

“I remember when he was a young kid, about 10 years old,” Ryden said. “It’s considerate for many children in his culture to look away when an adult is talking to you. Actually, they are being respectful. But this kid was just the opposite. He looked at you straight in the eye and you felt like he was sizing you up. Even at that age.

“But he wasn’t a bad kid. He was more silly and disruptive than dangerous. I never saw the kid get into a fight. But I always had a feeling that if anyone started trouble with him, he would finish it on his own terms. He would not leave anything up in the air.”

His grades were not good. He preferred playing basketball and watching football on TV. He hung out with friends on his front stoop, and from school Ryden could see the young boy learning to flash hand signs, slowly becoming a “mule” for older gang members.

He took on a series of nicknames in various street gangs. His arrest records show he gave the police fake names as well, like Jose Hernandez, Jose Rivera and Julio Rodriguez. On the street he was often known as “Pucho,” slang for chubby.

His earliest capers seem trivial. He broke into an apartment building. He obstructed traffic while flashing gang signs and wearing the colors of the Latin Disciples. He was picked up for battery and theft and resisting arrest. He threatened a pair of school security guards. He was caught with 18 clear plastic bags of marijuana.

Almost always he was sent home on probation, and back to jobs as a busboy at the River Club or working in the laundry at the Ritz-Carlton hotel.

School never took. Instead, in 1983, when he was 13, he and a friend were arrested in connection with an armed robbery that ended in the death of a rival member of a Mexican gang. Stolen were a watch, $107 and some Mexican pesos.

Padilla’s court records on the slaying are sealed because he was a juvenile. But the friend was tried as an adult, and the prosecutor alleged Padilla helped by punching, kicking and clubbing the victim with a baseball bat. Padilla later told a judge that he spent two years in detention.

By the end of the 1980s, Padilla had left Chicago. He moved to Broward County, Fla., joining his mother and two half brothers.

“He was a regular guy,” half brother Tomas Texidor said. “Only those that know him the closest and grew up with him would know that. He was a good guy at heart.”

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The police in South Florida came to know him well. So did Victor Lento. So did Mohammad Javed.

Lento was confronted by Padilla in a 1991 road rage incident in Sunrise, Fla., in which Padilla was arrested for firing a .38-caliber silver revolver from the window of his black Toyota Tercel.

Lento was uninjured. But he remains troubled today, not so much by the roar of the gun blast as the look on Padilla’s face. “He had dark eyes that could see right through you,” Lento said.

In a court hearing, Padilla became extremely agitated, saying he was upset that court officials were not leveling with him about the status of his case. He also described a fight with jail guards because he was frustrated about his uncertain future.

“I just want people to be honest with me,” he complained to the judge in Fort Lauderdale. “Tell me what’s going on.”

He was convicted and served nearly a year in the Broward County Jail.

After his release in 1992, Padilla married a Jamaican-born woman, fathered a child and divorced. That year he found a job at a local Taco Bell, and there he met Javed, his boss, who also is a founder of the Broward School of Islamic Studies.

Javed said Padilla constantly marveled at how peaceful he seemed. “He asked me where could he go to be a Muslim.”

Javed directed him to several local mosques and there, he said, “something touched his heart.”

“He said he had wanted peace of mind, and now he said he felt at peace with himself,” Javed said. “He changed his demeanor. The same progression took place with him as with John Walker Lindh. The head covering he wore, the moving from one mosque to another, looking for a connection in the Middle East.”

Padilla started calling himself “Ibrahim.” Eventually he legally changed his name to Abdullah al Muhajir, even though “Jose” was tattooed on his arm.

He quit the Taco Bell in 1994, and by 1998 was headed to Egypt, telling friends he hoped to teach English in Cairo.

“That was odd,” Javed said. “He didn’t even complete high school in Chicago.”

Javed said he would occasionally hear from Padilla’s ex-wife that he was “doing fine, that someone had provided him shelter, that he was listening and learning.”

“And so we forgot about him.

“And then we saw his picture on the news.”

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Padilla’s alleged activities abroad were recounted in August in a court affidavit by Michael H. Mobbs, a special advisor in the Defense Department, that laid out some of the case against him. Much of the information apparently came from Al Qaeda kingpin Zubeida after his capture.

Mobbs said Padilla traveled throughout Pakistan, Afghanistan and Saudi Arabia, and became “closely associated” with Al Qaeda. The terrorist network knew him as the “immigrant.”

In Afghanistan in 2001, he and an unknown associate “approached Zubeida with their proposal to conduct terrorist operations within the United States,” Mobbs said. As a U.S. citizen who could readily reenter the country, Padilla would have been an attractive recruit for terrorists.

The pair was sent to Al Qaeda operatives in Pakistan for training in wiring explosives. Secreted at an Al Qaeda safe house, they researched how to build a “uranium-enhanced explosive device.”

The plan, Mobbs said, was to build and detonate a dirty bomb in the United States, possibly in Washington, by stealing radioactive material in this country.

Early this year, under Zubeida’s direction, plans were stepped up to explode bombs in hotel rooms or gas stations, Mobbs said. Senior Al Qaeda operatives directed Padilla to return to the U.S. to scout for possible targets and “conduct reconnaissance.”

But in the meantime, Zubeida was captured and began talking. And on May 8, when Padilla flew from Pakistan to Chicago via Switzerland, undercover U.S. agents were aboard. He was seized at O’Hare, and Ashcroft proudly announced the capture.

He was first held as a material witness for the New York grand jury. Then on June 9, President Bush said in a written statement that Padilla reentered the U.S. as an enemy combatant by engaging in “conduct that constituted hostile and warlike acts.”

That finding sent Padilla to the brig, where his family hasn’t been allowed to visit him.

New York lawyer Victor Olds was hired to represent Padilla’s mother, Estela Ortega LeBron, who testified before the grand jury last spring. He said she told the panel that her son is not a terrorist. She has written her son, but has no idea whether he received the letter. She has received no reply.

LeBron declined to speak about her son for this story; his former wife could not be reached.

At the Broward County Jail, where Padilla earlier served time, his other half brother, Ilan Ojeda, is awaiting trial on attempted murder charges. Ojeda said he was immediately moved to an isolation cell in the jail’s maximum security wing after Padilla was arrested in Chicago.

In a jailhouse interview, Ojeda said Padilla may be many things, but he is not a terrorist.

“He didn’t do what they say about him. No way,” Ojeda insisted. “He was just coming home.”