Different Strokes, Different Folks

Attorney Andrew Cohen analyzes legal cases and issues for CBS News and CBSNews.com.

If you are Jose Padilla, on the other hand, the government secrets you away to a military base, precludes you from defending yourself in court, and then offers to the public the details of your alleged crimes on the eve of a Supreme Court ruling in your case. Who says that similarly-situated suspects merit equal treatment under the law?

Given Tuesday's dramatic disclosures by the government about Padilla's purported role in a terror plot, it's hard to find enough factual differences between the Moussaoui and Padilla cases to justify the dramatically different ways in which the two terror suspects have been treated. In fact, perhaps the most important differences between the two men suggests that it is Padilla, and not Moussaoui, who deserves more due process now and into the future. Padilla is a U.S. citizen. Moussaoui is not. Moussaoui admitted in open court in 2002 that he is a loyal al Qaeda foot soldier. So far, we haven't heard boo from Padilla himself.

In its indictment against the Algerian-born self-described terrorist, the government alleges that Moussaoui "unlawfully, willfully and knowingly combined, conspired, confederated and agreed to kill and maim persons within the United States, and to create a substantial risk of serious bodily injury to other persons by destroying and damaging structures, conveyances, and other real and personal property within the United States."

At Tuesday's dubiously-timed press conference, U.S. Deputy Attorney General James B. Comey released newly declassified documents that suggest the government believes that Padilla, too, was involved in a conspiracy "to kill and maim persons within the United States" by "destroying or damaging" apartment buildings and hotels. Both men, according to federal officials, were supposed to be part of a post-Sept. 11, 2001 wave of terror activity. (Even some government officials now believe that Moussaoui was not supposed to be the 20th hijacker, a designation Moussaoui himself denies).

So what to make of this different treatment? The government is entitled, after all, to employ all legal means available not just to punish criminals but to try to prevent terrorism before it occurs. The feds Tuesday used the Padilla information to justify why he has been held, incommunicado and without the ability to contest the charges against him, for the past few years. "We now know much of what Jose Padilla knows, and what we have learned confirms that the president of the United States made the right call and that that call saved lives," prosecutor Comey said.

The first part of Comey's statement perhaps is true. (Right now there is no way to independently confirm it.) But the second part doesn't necessary follow from the first. Padilla might also have disclosed his alleged participation in a terror cell had he been charged with a regular crime. Suspects confess all the time in our criminal justice system. Even Moussaoui confessed his role with Al Qaeda after he was charged. Perhaps the only reason Moussaoui hasn't been more forthcoming is that prosecutors insist on trying to get a death penalty against him. Moussaoui was ready to plead guilty and tell all, remember, when his plea deal got bogged down on the question of capital punishment.

It's true that the Moussaoui case — now stalled over the question of the defendant's right to access information from his al Qaeda bosses — reveals how tricky these terrorism cases can get when the exigencies of the war on terror meet the requirements of due process. I can understand perfectly why the government wouldn't want to stumble into the same morass with Padilla that it now is in with Moussaoui. But none of that explains why Moussaoui wasn't handed over to the military for a tribunal proceeding (he can be because he is not a U.S. citizen) while Padilla was handed over from civilian authorities to the military.

The release of the information about Padilla likely won't affect the Supreme Court's review of his case. That review focuses not upon the strength or truth of the allegations against him but upon the right of the Executive Branch to keep his case away from the purview of the courts. Comey acknowledged as much Tuesday when he said the government won't try to supplement the Court's record on the eve of an expected decision. Still, it's hard not to see the timing of the release as anything other than a public-relations ploy designed to tug on the emotions of the justices. After two years of near-silence about Padilla, why would it suddenly become appropriate to release all this detail — just as the Justices are perhaps crossing their "T's" and dotting their "I's" on a ruling expected before the end of the month?

Government critics charged Tuesday that Comey was trying Padilla in the court of public opinion instead of in a real courtroom. That's true. The now-detailed allegations against Padilla seem to warrant federal charges against him — many of the same charges that Moussaoui now faces. The feds, however, say that won't happen because incriminating information about Padilla, from Padilla himself, could not be used against him at a regular criminal trial. But there is other, corroborating evidence against him as well that might support an indictment and a conviction. And who's to say that Padilla, like Moussaoui, won't be willing to talk voluntarily during the course of a regular civilian case? These accused terrorists seem to have a penchant for wanting to tell the world about who and what they are.

The Justice Department wanted to put Moussaoui on trial to show the world that even one of the hijackers could get a fair trial in the United States. That trial hasn't yet happened. The government has decided to make a different example of Padilla. It has that right. But that doesn't mean it makes any sense.

By Andrew Cohen