Jose Padilla Prosecution Stumbles.

Jose Padilla has already made one giant step. The risk of going to the U.S. Supreme Court convinced the Bush Administration to stop treating him as an "enemy combatant" and to start treating him, instead, like a criminal defendant in a Miami, Florida federal terrorism prosecution.

The Miami Herald reports that:

[N]ow a federal judge says the case against him appears ``very light on facts.''

In the last week, U.S. District Judge Marcia Cooke ordered prosecutors -- for the second time -- to provide more details to make their case against Padilla and codefendants Adham Amin Hassoun and Kifah Wael Jayyousi, accused of being part of a North American terrorist cell that supported Islamic jihad abroad. . . .

Padilla's lawyers, in court papers, argue their client's

''voice is heard on only eight brief conversations'' and ''not heard on any of the intercepts'' regarding alleged violent activities abroad. They also note that the other defendants -- including Hassoun, the alleged ringleader from Sunrise -- only mentioned Padilla 20 other times. . . .

According to the indictment, on July 24, 2000, Padilla 'filled out a `Mujahadeen Data Form' in preparation for violent jihad training in Afghanistan.''

It also claimed that on Sept. 3, 2000, Hassoun called another alleged co-conspirator in Egypt to provide financing for the travel and training of Padilla. He told Hassoun that Padilla ''entered into the area of Osama,'' a reference to al Qaeda leader Osama bin Laden, who was being harbored by the Taliban in Afghanistan.

There are 230 wiretap transcripts spanning 1993-2001 that form a basis for the case. Padilla's attorney wants a separate trial, so that only evidence relevant to the case against Padilla himself, who appears to be a minor player, at best, in the alleged conspiracy, goes before the jury.

It is also important to keep in mind that until a number of days after September 11, 2001, the United States was not at war with the Taliban, which was pretty close to being the legitimate government of Afghanistan at the time. Indeed, before the U.S. engaged the Taliban militarily in Afghanistan, it communicated with the regime through diplomatic channels.

In the fall of 2000, what Padilla was doing, looks a lot like what the men of the Abraham Lincoln Brigade did in the Spanish Civil War, go off and fight in a foreign war for a side they felt was just, and history largely agrees with them (they fought the fascists). They returned home a heros, rather than being prosecuted for their deeds, although most "were harassed or forced out of their jobs by the FBI" in the 1950s during the red scare, because they had used violent force to support communism, albeit against fascism.

No one claims that Padilla ever engaged U.S. troops or their allies in combat, or that he ever actual carried out any terrorist plots. The government claimed that he attempted to carry out one plot which was allegedly in progress when he returned to the U.S., although the plot was not actually the dirty bomb plot claimed, it was an arson campaign. But, the years he has spent incarcerated, first as an enemy combatant and now awaiting trial, approximate the kind of sentence he might receive had he been convicted of those charges, and any prosecution on those charges in now hopeless botched based on the administration's illegal application of its "enemy combatant" theory to this case far from any battlefield.

Hat Tip to How Appealing.