White House balked at having 2 al Qaeda detainees questioned at Padilla terror trial
Douglas Jehl, Eric Lichtblau, New York Times Thursday, November 24, 2005
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Washington -- The Bush administration decided to charge Jose Padilla with crimes unrelated to alleged plots to explode a "dirty bomb" and destroy apartment buildings 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 al Qaeda members were the main sources linking Padilla to a plot to bomb targets in the United States, the officials said.
The al 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 CIA, whose internal reviews have raised questions about their treatment and credibility, the officials said.
One review, completed in the spring of 2004 by the CIA inspector-general, found that Mohammed had been subjected to excessive use of a technique involving near-drowning in the first months after his capture, according to U.S. intelligence officials.
Another review, completed in April 2003 by U.S. intelligence agencies shortly after 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 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 Tuesday. The decision not to charge him criminally in connection with the more far-ranging bomb plots was spurred by the conclusion that Mohammed and Zubaydah almost certainly could 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 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 Gonzales repeatedly refused to address questions at 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 Padilla's actions.
They were granted anonymity, saying that to be identified by name would subject them to reprisals for addressing questions that Gonzales had declined to answer.
In an interview Wednesday, a British attorney for another man accused by the United States of working as Padilla's accomplice in the "bomb" plot also accused U.S. 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 sign a confession implicating himself and Padilla.
"They took him to Morocco to be tortured," said Clive Stafford Smith, the attorney 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 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.
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 Padilla has been ultimately charged.
Officials said they had considered bringing criminal charges against Padilla in the case and releasing him from military custody as early as last spring after communications intercepts 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 Padilla.
The bigger factor driving the decision on whether to continue holding 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.
Padilla's case has languished in the federal appeals system for years, in part because of jurisdictional questions. In September, the 4th U.S. Circuit Court of Appeals, in a strong affirmation of the administration position, said Padilla was being held legally. With that precedent in hand, administration officials said they believed that it was not worth the risk of having the Supreme Court overturn the lower court.
"If we'd lost the 4th 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, the official said.
It was 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 Padilla's arrest in Chicago less than two months later, the officials said.
It was Mohammed, who was captured in March 2003, who linked Padilla to a plot to use natural gas lines to bomb American apartment buildings, the officials said.
In the interviews Wednesday, U.S. officials from several agencies said they still regarded those accusations as serious, particularly the one described by Mohammed. Officials said they were deeply concerned about reports that Padilla, trained by an al 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.
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