A close look at the Padilla indictment

by Bobby Chesney

Although it gets us a bit far afield from the focus of Opinio Juris, I’m going to follow Roger and Julian’s lead and blog briefly regarding the Padilla indictment. (Yes, I’m still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)

Many months ago, there was considerable speculation that the government would obtain a criminal indictment against Jose Padilla in the Southern District of Florida, where it was known that a grand jury was investigating a circle of alleged Islamist extremists said to have links to Padilla. This has now come to pass. A grand jury in Miami has issued an indictment against Jose Padilla (and four others), and the President has ordered the Secretary of Defense to transfer him to the custody of the Attorney General. (You can get to the indictment from Roger’s post).

This is actually a superseding indictment in the existing matter of United States v. Hassoun, et al., No. 04-600001-CR (Cooke) (S.D. Fla.). Indeed, I believe it is the 5th superseding indictment, although of course it is the first to add Padilla as a co-conspirator (an earlier iteration, with charges against Hassoun, Youssef, and Jayyousi, is described in a DOJ press release here. In any event, the current defendants are: Adham Amin Hassoun (in custody), Mohamed Hesham Youssef (currently in jail in Egypt), Kifah Wael Jayyousi (in custody), Kassem Daher (not sure if he is in custody here, in Canada (where he lives), or not at all), andJose Padilla (in custody, of course).

The indictment is a fascinating example of the way in which federal prosecutors make use of existing federal statutes to prosecute persons allegedly involved, to varying degrees, with Islamist extremism.

1. Section 956:

Conspiracy to commit violent acts outside the United StatesIn this instance, the indictment alleges the existence of a conspiracy – including but not limited to these defendants – the ultimate aim of which was to commit acts of violence in other countries. Based on that claim, the indictment charges a violation of 18 U.S.C. 956, which prohibits conspiracy to commit an act of violence outside the United States, so long as (i) the act would constitute the offense of murder, kidnapping or maiming if committed in the US and (ii) at least one act in furtherance of the conspiracy takes place in the U.S. What is very interesting here – although typical of how 956 has been charged since 9/11 – is that there is no attempt to allege with any particularity what the specific act of violence would be; the indictment instead merely describes at a general level the use of violence by the broader jihadist movement of which this conspiracy allegedly was a part. In this regard, it is worth noting that the indictment does not label the conspiracy as a component of al Qaeda or any other specific group. Instead, the indictment describes the conspiracy simply as part of the overall “radical Islamic fundamentalist movement . . . [based on] a radical Salafist ideology that encourage[s] and promote[s] ‘violent jihad'”. (Indictment at 1). Several organizations – including al Qaeda – are named as representative and constituent of that movement, but in the end there is no formal attempt to match the defendants to any one group (reflecting the widely-held view that the jihadist movement has network rather than formal group characteristics). Thus, the conspiracy is labeled the “North American Support Cell,” rather than, say the “al Qaeda Cell.”

2. Section 2339A:

Material Support (to an act, not a group)As also has happened in the past, the indictment pairs the 956 charge with a charge under 18 U.S.C. 2339A, the older of the two material support statutes. This is not the statute that prohibits the provision of support to designated foreign terrorist organizations; as noted above, the indictment avoids formal organizational labels, as it probably must. Instead, this is the version of the material support law that more closely resembles a traditional aiding-and-abetting statute; it forbids provision of suppport (for example, money) to anyone if done with knowledge the support will be used to further a violation of one of several listed statutes, including 956. In this case, the claim is that the cell conspired to (and did) provide money and other logistical assistance (fundraising, mainly) in connection with the 956 conspiracy described above.

3. The other charges:

The other charges all concern defendant Hassoun. He has been charged with unlawful possession of a firearm (18 USC 922); making false statements to federal agents (18 USC 1001); multiple counts of perjury arising out testimony before an immigration judge (18 USC 1621); and obstruction of those same proceedings (18 USC 1505).


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