Shift on Suspect Is Linked to Role of Qaeda Figures
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Shift on Suspect Is Linked to Role of Qaeda Figures
By DOUGLAS JEHL and ERIC LICHTBLAU
WASHINGTON, Nov. 23 - 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 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.