Padilla’s Supposed al-Qa’eda “Application” Introduced in Court

According to news reports released this afternoon, a document obtained by American military officials in Afghanistan purporting to be an application from Jose Padilla (Puh-DILL-uh) to join an al-Qa’eda affiliated training camp in Afghanistan surfaced for the first time in court yesterday at Mr. Padilla’s detention hearing.^[1] Existence of the document, entitled “Mujahideen Data Form,” was first announced by the U.S. Department of Justice in June of 2004.^[2] According to the government, the document bears the signature of Abu Abdullah al-Muhajir, a nomme de guerre claimed to have been adopted by Mr. Padilla upon his oath to violent jihad, or bayat. As a matter of practice, applications of the kind are submitted in pursuit of particularized positions within the administrative arms of group, here the al-Farouq training facility. In public statements proffered by Deputy Attorney General James Comey in the Summer of 2004, the form is said to bear the birth date October 18, 1970, a note that the applicant is fluent in English and Spanish, and is an American citizen, all of which is apparently shared by Mr. Padilla. Likewise, according to Comey, Mr. Padilla has made admissions to the effect that he attended the al-Farouq camp during September/October of 2000 and trained in small arms use (e.g. AK-47, G-3, M16, Uzi) under the name Abdullah al-Espani.

The first obvious question which is raised: if the application uses the name Abu Abdullah al-Muhajir, then why need he attend the al-Farouq training facilities under a different name altogether?

The second prima facie problem with the use of this form falls within the conditions under which Mr. Padilla would have made any admissions of fact. Indeed, Mr. Padilla had been detained immcommunicado by the military for nearly two years at the date of Mr. Comey’s claims, potentially raising serious questions of admissibility under the Federal Rules of Criminal Procedure and Federal Rules of Evidence.

Finally, the issue of authenticity. For the government to introduce the form in court to be used against Mr. Padilla, it must be an original, or must otherwise be verified in some form as an original.^[3] Secondly, defense counsel may attempt to illustrate that the form cannot be verified as truly having been an al-Qa’eda training form (thereby placing the burden on the government to prove its authenticity) and by showing that it cannot be proven that Mr. Padilla was involved in its writing, though this may be countered through handwriting analysis or by matching distinctive characteristics of the form with the defendant (date of birth, citizenship, language abilities).^[4] Ultimately however, it will likely be the responsibility of Mr. Padilla’s counsel to discredit the form’s validity, once the evidence is admitted, on substantive grounds.

Mr. Padilla, as discussed at length previously, was dubbed an “unlawful” or “unprivileged” enemy combatant in 2002 by President Bush and has, since that time, been held incommunicado in a South Carolina Navy brig. A federal grand jury indicted him several weeks ago, alleging conspiracy “to kill, kidnap, maim or injure persons in a foreign country” and providing material support to al-Qaeda.

[1] Jay Weaver, “We Found Padilla’s al Qaeda Application, U.S. Says,” Miami Herald, Friday, January 13, 2006, available online here; Curt Anderson, “Padilla’s Purported al-Qaida Application Released By Prosecutors,” Associated Press, Friday, January 13, 2006, as published at the Sun-Sentinel here.
[2] See: James Comey, Deputy Attorney General, Public Statements, Tuesday, June 1, 2004. Available online here.
[3] Federal Rules of Evidence Rule 1002. Requirement of Original
[4] Id. Rule 901