Report: US didn't want Al Qaeda members to testify in Padilla case | csmonitor.com

Report: US didn't want Al Qaeda members to testify in Padilla case | csmonitor.com

Report: US didn't want Al Qaeda members to testify in Padilla case
Evidence linking Padilla to 'dirty bomb' plot may have been obtained under 'harsh questioning.'
By Tom Regan | csmonitor.com


Several reasons have been given for the US government's decision this week not to include charges of ties to Al Qaeda or the plans to build a 'dirty bomb' in its indictment against US citizen Jose Padilla. The New York Times Thursday quoted unnamed current and former government sources say one of those reasons may be that it was unwilling to allow the testimony of the two Al Qaeda members who linked Mr. Padilla to the above plot because the two men may have been 'subjected to harsh questioning.'

The Qaeda members were Khalid Shaikh Mohammed, believed to be the mastermind of the attacks of Sept. 11, 2001, 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 [known as waterboarding] in the first months after his capture, according to US intelligence officials.

The anonymous sources quoted by the Times say that the Bush administration decided not to include the more serious charges because the two top Al Qaeda men could "never be used as witnesses," and their testimony was the only thing linking Padilla to the bombing plots. Officials were concerned that "it could open up charges from defense lawyers that their earlier statements resulted from torture."

The Guardian reported Thursday that the Bush administration was also worried that if the men were questioned, they could expose classified information about the CIA's secret prison system, located in other countries around the world, which was recently uncovered by human rights groups.


The Miami Herald reported Wednesday that the decision to shift Padilla from "enemy combatant to criminal defendant represents the latest move to avoid a legal showdown" with the Supreme Count over presidential power. Legal experts quoted by the Herald say that the latest example of how the Bush administration "short-circuits legal challenges to its expansive use of wartime powers."

"The administration only changes when things get hot in the courthouse," said Eugene Fidell, president of the nonpartisan National Institute of Military Justice. Scott Silliman, an expert on national security law at Duke University, said the administration's decision on Padilla "clearly is an exercise in damage control to avoid an adverse legal decision."

There's still a chance the Supreme Court could take the Padilla case to settle the issue, but Silliman said that was unlikely. Attorney General Alberto Gonzales said the case before the court is now "moot."

USAToday writes in an editorial that by moving Padilla "from a military brig to a federal detention center, Bush might have avoided a Supreme Court showdown he was likely to lose."

Padilla's lawyers, however, have signaled that they do not intend to drop their request to be heard by the Supreme Court. The Financial Times say the lawyers intend to seize on the administration's refusal to clarify the legal standing of Padilla. The Department of Justice has only said he is no longer in custody as an enemy combatant.

That point has been seized on by Mr Padilla's lawyers, who say that the White House has, in effect, retained the right to detain their client without charge, no matter what the outcome of his case is before a judge and jury.

"What is to stop them, if we go to trial and are successful, regardless saying: 'He is still an enemy combatant'?" says Donna Newman, Mr Padilla's attorney. Ms Newman says the decision to charge Mr Padilla also does not resolve the essential question behind her case: does the president have the authority to detain individuals, especially US citizens, indefinitely?

In an editorial, Newsday concurs with the idea of continuing with the case before the Supreme Court, saying that "The nation needs an unequivocal ruling on the limits of presidential power in this context, and it's up to the Supreme Court to provide it."

No citizen taken into custody in the United States should be deprived of those rights as Padilla has been. So the Supreme Court should accept the appeal filed on his behalf last month and answer the question it posed: "Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charges or trial?"

The administration, clearly hoping to avoid a Supreme Court showdown, announced the indictment just days before a deadline to file its legal arguments. Officials insist the issue is moot now that Padilla has been charged. But it's not. Padilla's circumstances have changed, but one key legal issue hasn't. If it's left unresolved, then Padilla, or any other citizen branded an enemy combatant, could be picked up and held for as long as George W. Bush or any subsequent president desires.

Boston Globe columnist Thomas Oliphant said the government's decision to transfer Padilla's case to a criminal court after holding him for three years as an enemy combatant is also "Exhibit A" against the Patriot Act "as currently written."

The Padilla case is justification for the need for supervision, oversight, and judicial examination of how the government uses extraordinary powers in extraordinary times. Precisely because terrorism is an elusive and therefore especially dangerous enemy, it is doubly important that the government behave responsibly and that its actions receive scrutiny.

The Detroit Free Press reported that the charges against Padilla did include conspiring to murder, kidnap, and maim Americans overseas and of providing material support to terrorists. Attorney General Alberto Gonzales said Padilla had traveled overseas for training to fight in "violent jihad" and was part of a terrorist support cell that operated in the United States.

The Associated Press reports that according to the government indictment, Padilla was part of a terrorist cell that sought funds and fighters for international jihad. But apparently, that terrorist cell was not a particularly successful one. Over nine years the group raised less than $100,000 and recruited just a handful of people, including Padilla, according to federal prosecutors. Over the past few years, the administration has often used Padilla as an example of how Al Qaeda has penetrated America.