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| Shift on Padilla indictment linked to having al-Qaeda leaders testify |
| 2005-11-24 |
| The Bush administration decided to charge Jose Padilla with less serious crimes because it was unwilling to allow testimony from two senior members of Al Qaeda who had been subjected to harsh questioning, current and former government officials said Wednesday. The two senior members were the main sources linking Mr. Padilla to a plot to bomb targets in the United States, the officials said. The Qaeda members were Khalid Shaikh Mohammed, believed to be the mastermind of the Sept. 11, 2001, attacks, and Abu Zubaydah, a top recruiter, who gave their accounts to American questioners in 2002 and 2003. The two continue to be held in secret prisons by the Central Intelligence Agency, whose internal reviews have raised questions about their treatment and credibility, the officials said. One review, completed in spring 2004 by the C.I.A. inspector general, found that Mr. Mohammed had been subjected to excessive use of a technique involving near drowning in the first months after his capture, American intelligence officials said. Another review, completed in April 2003 by American intelligence agencies shortly after Mr. Mohammed's capture, assessed the quality of his information from initial questioning as "Precious Truths, Surrounded by a Bodyguard of Lies." Accusations about plots to set off a "dirty bomb" and use natural gas lines to bomb American apartment buildings had featured prominently in past administration statements about Mr. Padilla, an American who had been held in military custody for more than three years after his arrest in May 2002. But they were not mentioned in his criminal indictment on lesser charges of support to terrorism that were made public on Tuesday. The decision not to charge him criminally in connection with the more far-ranging bomb plots was prompted by the conclusion that Mr. Mohammed and Mr. Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said. Without that testimony, officials said, it would be nearly impossible for the United States to prove the charges. Moreover, part of the bombing accusations hinged on incriminating statements that officials say Mr. Padilla made after he was in military custody - and had been denied access to a lawyer. "There's no way you could use what he said in military custody against him," a former senior government official said. The officials spoke a day after Attorney General Alberto R. Gonzales repeatedly refused at to address questions a news conference about why the government had not brought criminal charges related to the most serious accusations. The officials, from several agencies, sought to emphasize that the government was not backing off its initial assertions about the seriousness of Mr. Padilla's actions. The officials were granted anonymity, saying to be identified by name would subject them to reprisals for addressing questions that Mr. Gonzales had declined to answer. In an interview on Wednesday, a British lawyer for another man accused by the United States of working as Mr. Padilla's accomplice in the bomb plot also accused American officials of working to extract a confession. The lawyer said the United States had transferred the man to Morocco from Pakistan, where he was captured in 2002, in an effort to have him to sign a confession implicating himself and Mr. Padilla. "They took him to Morocco to be tortured," said Clive A. Stafford Smith, the lawyer for the suspect, Binyan Mohammed. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla." Officials said the administration had weighed the lesser criminal charges against Mr. Padilla for months before its announcement as a way of extricating itself from the politically, and possibly legally, difficult position of imprisoning an American as an enemy combatant. Mr. Padilla was an unindicted co-conspirator in a case last year in Miami in which several men were charged with operating a "North American support cell" to support jihad causes overseas, the case in which Mr. Padilla has been ultimately charged. Officials said they had considered bringing criminal charges against Mr. Padilla in the case and releasing him from military custody as early as last spring, after intercepted communications pointed to his role in the cell. But officials faced time pressures in bringing the criminal case, and when the Florida judge delayed proceedings against the men already charged, the administration decided to hold off charging Mr. Padilla. The bigger factor driving the decision on whether to continue holding Mr. Padilla as an enemy combatant was the question of how federal appeals courts would rule on whether President Bush had the authority to hold him and Americans like him as enemy combatants without charges. Mr. Padilla's case has languished in the federal appeals system for years, in part because of jurisdictional questions. In September, the United States Court of Appeals for the Fourth Circuit, in a strong affirmation of the administration position, said Mr. Padilla was being held legally. With that precedent in hand, administration officials said they believed it was not worth the risk of having the Supreme Court overturn the lower court. "If we'd lost the Fourth Circuit," the former senior official said, "we would not have let Padilla go criminally. We would have insisted on going to the Supreme Court" to affirm the right to hold combatants. It was Mr. Zubaydah, who was captured in March 2002, who provided his questioners with the information about a plan to use a radiological weapon often called a "dirty bomb" that led to Mr. Padilla's arrest in Chicago less than two months later, the officials said. It was Mr. Mohammed, who was captured in March 2003, who linked Mr. Padilla to a plot to use natural gas lines to bomb American apartment buildings, the officials said. In the interviews on Wednesday, American officials from several agencies said they still regarded those accusations as serious, particularly the one described by Mr. Mohammed. Officials said they were deeply concerned about reports that Mr. Padilla, trained by a Qaeda bomb maker who is at large, might seek to rig an explosive to the natural gas system of an apartment building in New York, officials said. They said any effort to introduce testimony by Mr. Mohammed and Mr. Zubaydah against Mr. Padilla could have opened the way for defense lawyers to expose details about their detention and interrogation in secret jails that the Central Intelligence Agency has worked hard to keep out of public light. The fact that the evidence against Mr. Padilla in connection with the bombing plot depended so directly on prisoners from Al Qaeda meant that the obstacles to bring charges against him were even higher than those that prosecutors have confronted in their case against Zacarias Moussaoui, who has pleaded guilty to his role in the Sept. 11 hijackings. Where prosecutors were able to bypass allowing Mr. Moussaoui to confront his accusers directly, the evidence that Mr. Zubaydah and Mr. Mohammed could potentially have brought against Mr. Padilla was widely seen as far more central to the bombing case against him, and prosecutors apparently thought that it would be nearly impossible to bring a criminal case based on that evidence as a result. The C.I.A. has not acknowledged that it holds Mr. Mohammed and Mr. Zubaydah, and the locations of their prisons remain unknown. The two were identified in the report completed in 2004 by the Sept. 11 commission as being among a small group of so-called high-value terror suspects held at undisclosed sites overseas. The C.I.A. has in custody two dozen to three dozen such prisoners, and more than 100 others have been transferred by the agency from one foreign country to another, a process called rendition, officials have said. The United States has never publicly identified Mr. Mohammed and Mr. Zubaydah as having provided the critical information against Mr. Padilla. A seven-page statement that the Justice Department declassified in June 2004 identified the two main witnesses only as "senior Al Qaeda detainee No. 1" and "senior Al Qaeda detainee No. 2." But the statement provided detailed information about the interactions of Mr. Zubaydah and Mr. Mohammed with Mr. Padilla in Pakistan and Afghanistan after Sept. 11, and the current and former officials said the unnamed detainees were in fact those two senior Qaeda officials. The fact that the C.I.A. inspector general's report criticized as excessive the use of interrogation techniques on Mr. Mohammed had not previously been disclosed. A spokesman for the C.I.A. declined on Wednesday to comment on any inspector general's report describing him. A senior American official said, "There has been no reason to doubt that the accusations against Padilla in relation to the bombing plot were genuine." The official said the administration had determined that concerns about subjecting Mr. Mohammed and Mr. Zubaydah to cross-examination by defense lawyers would be insurmountable. |
| Posted by:Dan Darling |