“Speaking in Tongues"

            I recalled Freud’s observation while reading the news reports of the man billed by the Miami Herald as “the federal government’s leading expert witness in the case against terrorism suspect Jose Padilla.” I have written about the long, tortured history behind the federal government’s effort to put Padilla, a United States. In short, President Bush authorized Padilla’s arrest in 2002 and promptly designated him an “enemy combatant,” a classification that was thought at the time to endow the government with the power to hold him, incommunicado and without criminal charge and trial, for the uncertain duration of the “war on terror.” After years of legal wrangling, and as the Supreme Court was deciding whether to review Padilla’s claims to violation of his most fundamental rights, the government re-designated Padilla a common (or uncommon) criminal and indicted him in 2005. He is now standing trial in federal court in Miami, along with two co-defendants. (Disclosure: One of the co-defendants is being represented by my friend and former law partner, Jeanne Baker.)

            The prosecution is seeking to utilize extensive wiretaps of phone conversations involving the defendants, in order to prove the charge that they conspired to commit murder and to provide “material support” for “jihadist” terrorist groups overseas (Padilla’s voice is reportedly heard on only eight of the more than 300,000 conversations tapped from 1993 to 2001). Many of those tapped conversations appear to be rather innocuous, filled with everyday talk, while others have slightly more enigmatic language.

             The prosecutors claim that because the defendants knew they were being wiretapped, they spoke in code. To decipher this supposed code and to testify as to its “true” meaning, the prosecution has called various expert witnesses. An FBI agent, John Kavanaugh, testified at the Miami trial that “tourism” actually meant “jihad.”  “Cheese” was code for “money,” and “iron” meant “weapons.” Meanwhile, to “get married” meant to be killed, testified Dr. Rohan Gunaratna. The names of fruits and vegetables actually referred to weapons; thus, “eggplant” was actually a rocket-propelled grenade launcher. And so forth and so on.             

            Dr. Gunaratna, who has a degree in international peace studies from Notre Dame and a doctorate from a Scottish university, has become the belle of the terrorism-industry ball. He has testified, mostly for the Department of Justice, as a “terrorism expert” for $300 an hour. (Not bad for someone who isn’t even fluent in Arabic.) Meanwhile, the sources used by Gutaratna, who was born in Sri Lanka, remain unreviewable--as defense lawyers in the Padilla trial learned when they tried to ascertain who exactly supplied this “expert” with his insider’s “knowledge.”  Nonetheless, trial judge Marcia Cooke has qualified Gunaratna as an expert and has allowed the jurors to listen to him prattle on about the true meaning of what the jurors are hearing but presumably are not understanding without “expert” help. 

            Dr. Gunaratna, by the way, testified as a government expert in another infamous case – the trial in Boise, Idaho, of a Saudi grad student attending the University of Idaho who was charged with lending material aid to terrorism by maintaining websites through which one could follow links to jihadi websites. Dr. Gunaratna’s testimony was not sufficient to scare, nor fool, a jury of twelve solid citizens of Idaho. The student, Sami Omar al-Hussayen, was acquitted in 2004 when the jurors concluded that all he was doing was exercising his First Amendment protected right to free speech by helping people see what stuff was out there, publicly available, on the Net. Sometimes a website is just a website.