The court found that Padilla's original sentence of 17 years did not take into account his training in an al-Qaeda camp. The defense is making all the allegations it can think of -- including that Padilla was drugged with LSD while in custody -- and may attempt to take the case all the way to the Supreme Court. "Court says Padilla terror sentence was too lenient," by Curt Anderson for the Associated Press, September 19:
MIAMI (AP) — The 17-year prison sentence imposed on convicted terrorism plotter Jose Padilla is far too lenient for someone who trained to kill at an al-Qaida camp and also has a long, violent criminal history, a federal appeals court ruled Monday as it threw out the sentence.
A divided three-judge panel of the 11th U.S. Circuit Court of Appeals ordered a new sentencing hearing for Padilla, a U.S. citizen and Muslim convert convicted in 2007 along with two co-conspirators of several terrorism-related charges. Padilla, 40, was held for more than three years without charge as an enemy combatant before he was added to the Miami terror support case.
The ruling affirmed the convictions of Padilla, Adham Hassoun and Kifah Jayyousi on terrorism support and conspiracy charges. The sentences of Hassoun and Jayyousi — more than 15 years and more than 12 years, respectively — were also upheld.
Federal prosecutors objected in 2008 to Padilla's sentence and the appeals panel's majority agreed that U.S. District Judge Marcia Cooke, who presided over the four-month trial, made several errors in essentially discounting his sentence by 12 years. Among the mistakes, the appeals court found, was not taking into account Padilla's training at the al-Qaida camp in Afghanistan.
"Padilla poses a heightened risk of future dangerousness due to his al-Qaida training," the judges ruled in a 73-page order. "He is far more sophisticated than an individual convicted of an ordinary street crime."
The judges also noted Padilla's 17 prior arrests, including involvement in a deadly fight as a juvenile, and ruled it was wrong for Cooke to use as a reference point several other terrorism cases in which defendants got relatively light sentences. The appeals panel also found error in Cooke's decision to reduce Padilla's sentence to account for his three-plus years at a South Carolina military brig as an enemy combatant.
"Although some downward variance is allowed in this circumstance, the district court abused its discretion," said the ruling written by the 11th Circuit Chief Judge Joel F. Dubina, who was joined by Circuit Judge William H. Pryor.
Dissenting was Circuit Judge Rosemary Barkett, who found some problems with an FBI agent's testimony during trial and said that Padilla was not informed of his Miranda rights when he was arrested at Chicago's O'Hare International Airport in 2002. Padilla was initially suspected of plotting to detonate a radioactive "dirty bomb" in the U.S., but that allegation was discarded long before the trial.
In her 39-page dissent, Barkett also said she found no abuse of discretion in Cooke's sentencing of Padilla.
"The sentence imposed on Padilla should not be disturbed by this court, because doing so simply substitutes this court's sentencing judgment for that of the trial judge," Barkett wrote.
Padilla's attorney Michael Caruso said he would use Barkett's dissent to either ask the entire 11th Circuit to consider the case or take it directly to the U.S. Supreme Court.
"We continue to believe that the government introduced improper evidence and violated Jose's rights," Caruso said. "Furthermore, Judge Cooke, who presided over Jose's case for years, imposed a fair and reasonable sentence."
The Miami U.S. attorney's office, which prosecuted the case, declined comment.
Padilla's lawyers tried before trial to get the case thrown out by claiming his treatment during his time at the brig amounted to torture, which U.S. officials have repeatedly denied. His attorneys say he was forced to stand in painful stress positions, given LSD or other drugs as "truth serum," deprived of sleep and even a mattress for extended periods and subjected to loud noises, extreme heat and cold and noxious odors.
His defense attorneys also tried to introduce "defensive jihad" as an excuse. The judge did not buy it.
Cooke ruled against Padilla and her decision was upheld Monday by the appeals panel.