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In Padilla Wiretaps, Murky View of ‘Jihad’ Case - New York Times by DEBORAH SONTAG

Written by Subject: Bush Administration
January 4, 2007

In Padilla Wiretaps, Murky View of ‘Jihad’ Case


In 1997, as the government listened in on their phone call, Adham Hassoun, a computer programmer in Broward County, Fla., proposed a road trip to Jose Padilla, a low-wage worker there. The excursion to Tampa would be his treat, Mr. Hassoun said, and a chance to meet “some nice, uh, brothers.”

Mr. Padilla, 36, a Brooklyn-born Puerto Rican who had converted to Islam a few years earlier, knew Mr. Hassoun, an outspoken Palestinian, from his mosque. Still, according to a transcript of the conversation obtained by The New York Times, Mr. Padilla equivocated as Mr. Hassoun exhorted.

“We take the whole family and have a blast,” Mr. Hassoun said. “We go to, uh, our Busch Gardens, you know ... You won’t regret it. Money-back guarantee.”

Mr. Padilla, laughing, suggested that they not discuss the matter over the phone.

“Why?” Mr. Hassoun said. “We’re going to Busch Gardens. What’s the big deal!”

That conversation took place five years before Mr. Padilla, a United States citizen accused of plotting a “dirty bomb” attack against this country, was declared an enemy combatant. Given that Mr. Padilla and Mr. Hassoun are now criminal defendants in a terrorism conspiracy case in Miami, it sounds suspicious, as if Mr. Hassoun were proposing something more sinister than a weekend at the amusement park. He well may have been — but maybe, too, he was sincere or joking about a Muslim retreat.

Deciphering such chatter in order to construct a convincing narrative of conspiracy is a challenge. Yet, prosecutors say, the government will rely largely on wiretapped conversations when it puts Mr. Padilla, Mr. Hassoun, and a third defendant, Kifah Jayyousi, on trial as a “North American support cell” that sent money, goods and recruits abroad to assist “global jihad.”

Tens of thousands of conversations were recorded. Some 230 phone calls form the core of the government’s case, including 21 that make reference to Mr. Padilla, prosecutors said. But Mr. Padilla’s voice is heard on only seven calls. And on those seven, which The Times obtained from a participant in the case, Mr. Padilla does not discuss violent plots.

But this is not the version of Mr. Padilla — Al Qaeda associate and would-be bomber — that John Ashcroft, then the attorney general, unveiled in 2002 when he interrupted a trip to Moscow to trumpet Mr. Padilla’s capture. In the four and a half years since then, as the government tested the limits of its power to deal with terrorism outside the traditional law enforcement system, Mr. Padilla is the only accused terrorist to have gone from enemy combatant to criminal defendant.

His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Mr. Padilla without formal charges for three and a half years. Those claims came from the government’s overseas interrogations of terrorism suspects, like Abu Zubaydah, which, the government said, Mr. Padilla corroborated, in part, during his own questioning in a military brig in South Carolina.

But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy.

The initial dirty bomb accusation did not disappear. It quietly resurfaced in Guantánamo Bay, Cuba. The government filed the dirty bomb charges against Mr. Padilla’s supposed accomplice, an Ethiopian-born detainee, at about the same time it indicted Mr. Padilla on relatively lesser offenses in criminal court.

A Change in Strategy

The change in Mr. Padilla’s status, from enemy combatant to criminal defendant, was abrupt. It came late in 2005 as the Supreme Court was weighing whether to take up the legality of his military detention and the Bush administration, by filing criminal charges, pre-empted its review. In a way, Mr. Padilla’s prosecution was a legal maneuver that kept the issue of his detention without charges out of the Supreme Court. After apprehending him at O’Hare International Airport in Chicago in May 2002, the Bush administration made a choice: to detain Mr. Padilla militarily, in order to thwart further plotting, rather than to follow him in order to gather evidence that might serve a criminal prosecution.

Now that Mr. Padilla has ended up a criminal defendant after all, the prosecution’s case does not fully reflect the Bush administration’s view of who he is or what he did.

Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002.

But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel — whether or not he was mistreated, as his lawyers claim — would not be admissible in court.

And it is unlikely that information obtained during the harsh questioning of Al Qaeda detainees would be admissible, either — and, further, the government is disinclined to expose sensitive intelligence or invite further scrutiny of secret jails overseas.

Probably as a consequence, the current criminal case zeroes in on what the government sees as an earlier stage of Mr. Padilla’s involvement with terrorism. It focuses primarily on the other defendants’ support during the 1990s for Muslim struggles overseas, especially in Bosnia, Kosovo and Chechnya. Mr. Padilla, who was appended to their pre-existing case, in which he had been an unnamed co-conspirator, is depicted as their recruit.

Although prosecutors have declined to discuss the government’s strategy, their filings and statements in court provide a picture of the case they are expected to present at trial.

The most tangible allegation against Mr. Padilla is that in 2000 he filled out, under an alias, an Arab-language application to attend a terrorist training camp. That application is expected to be offered into evidence alongside the wiretapped conversations, but Mr. Padilla’s lawyers say they will contest its admissibility, challenging the government’s assertion that the “mujahideen data form” belonged to their client.

Robert Chesney, a specialist in national security law at Wake Forest University, called the prosecution a pragmatic one, analogous to “going after Al Capone on tax evasion.”

But Deborah Pearlstein, a lawyer with Human Rights First who has consulted with Mr. Padilla’s defense, said that his will never be an ordinary, pragmatic prosecution. “If Jose Padilla were from Day 1 just charged and tried, then maybe,” she said. “But this is a case that comes after three and a half years of the most gross deprivation of human rights that we’ve seen in this country for a long time.”

Further, Ms. Pearlstein noted, the government has reserved the option, should the prosecution fail, of returning Mr. Padilla to the military brig. This, she said, “casts a shadow” over the current prosecution.

The Bush administration’s military case against Binyam Mohamed, 28, the Ethiopian detainee at Guantánamo, put the current proceedings in a different light, too.

In December 2005, Mr. Mohamed was referred to the military commission in Guantánamo on accusations that he conspired with Mr. Padilla on the dirty bomb plot. It was little noticed at the time.

But accusations against Mr. Padilla that are nowhere to be found in the indictment against him filled the pages of Mr. Mohamed’s charging sheet, with Mr. Padilla repeatedly identified by name. The sheet referred to the two men meeting in Pakistan after Sept. 11, 2001, studying how to build an improvised dirty bomb, discussing the feasibility of a dirty bomb attack with Al Qaeda officials and agreeing to undertake the mission to blow up buildings.

Mr. Mohamed’s lawyer, Clive Stafford Smith, said that these charges were based on a forced confession by Mr. Mohamed, who, he said, was tortured overseas into admitting to a story that was fed to him. “Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khaled Sheikh Mohammed,” Mr. Stafford Smith said, adding that his client “has no conscious knowledge that he ever met” Mr. Padilla.

The charges against Mr. Mohamed and other Guantánamo detainees who were headed for prosecution there have been suspended temporarily as a result of the Military Commissions Act passed by Congress in October. Those charges are likely to be reinstated, a Pentagon official said yesterday.

That Mr. Mohamed faced dirty bomb charges and Mr. Padilla does not speaks to the central difference between being a terrorism suspect in Guantánamo and a criminal defendant charged with terrorism offenses in the United States.

In Guantánamo, the military commission system that deals with foreign-born terrorism suspects is expected to allow, with some exceptions, the use of information obtained through coercion.

“Federal court rules are restrictive,” Professor Chesney of Wake Forest University School of Law said. “The very essence of why they’re trying to have that separate military system was to create rules to use information that is deemed by the intelligence community to be trustworthy but wouldn’t make it under the federal rules of evidence.”

David Cole, a professor of law at Georgetown University and author of books on terrorism and civil liberties, sees the difference between the two systems more critically: “What this says clearly is that they feel that they can get away with using tainted evidence in the military commission system that they can’t use in the criminal court system.”

The Wiretapping Case

The criminal case against Mr. Padilla has its roots in the prosecution of Sheikh Omer Abdel Rahman, the blind Egyptian cleric who was convicted in 1995 of conspiring to blow up the United Nations and other New York landmarks.

In the early 1990s, Sheikh Rahman’s telephone was tapped, and Mr. Hassoun and Dr. Jayyousi, a Jordanian-born American citizen who holds a doctorate in civil engineering, came to the government’s attention through phone calls to or from his line. Then the government, under the Foreign Intelligence Surveillance Act, began to eavesdrop on them, which eventually pulled Mr. Padilla into their net, too.

The government presents the three defendants as “joined at the hip,” as one prosecutor put it in a hearing last summer. But Judge Marcia G. Cooke of Federal District Court, noting that Mr. Padilla was appended to a case well under way, asked the government, “If they are so joined at the hip, why is Mr. Padilla so late to the dance?”

Dr. Jayyousi, a former school system administrator in both Detroit and Washington, D.C., never met Mr. Padilla, his lawyer, William Swor, said.

It is Mr. Hassoun, the government said, who recruited Mr. Padilla. But both Mr. Hassoun’s and Mr. Padilla’s lawyers deny that Mr. Padilla was recruited.

Seven Taped Phone Calls

Mr. Padilla’s lawyers and relatives say that he left South Florida for Egypt in September 1998 on a spiritual journey. A former juvenile offender, he converted to Islam as part of an effort to straighten out his life, they say. His mosque in Fort Lauderdale sponsored his travel, he told friends, relatives and F.B.I. agents who interviewed him in 2002. Mr. Hassoun belonged to that mosque, and the telephone transcripts seem to indicate that Mr. Hassoun helped, at the least, with Mr. Padilla’s travel plans.

The seven taped phone calls that bear Mr. Padilla’s voice involve conversations with Mr. Hassoun from 1997 to 2000.

On those calls, Mr. Padilla, unlike some of the other defendants, does not employ what the government says is coded language. According to the government, other defendants refer to their jihad-related plans as “getting some fresh air,” “participating in tourism,” “opening up a market,” “playing football,” and so on. This leads to silly-sounding exchanges where “the brothers” discuss going on “picnics” in order “to smell fresh air and to eat cheese” or using $3,500 to buy “zucchini.”

In contrast, Mr. Padilla’s seven conversations with Mr. Hassoun range from straightforward — Mr. Hassoun tells Mr. Padilla that his grandmother has died; Mr. Padilla tells Mr. Hassoun that he has found himself an 18-year-old Egyptian bride who is willing to wear a veil — to vaguely suggestive or just odd.

In one phone call, the two men talked about a dream. It appeared to be the dream that Mr. Padilla, according to his relatives, cites as having played a crucial role in inspiring him to convert to Islam: the vision of a man in a turban, surrounded by the swirling dust of a desert.

Mr. Hassoun brought it up and told Mr. Padilla that he himself had experienced the same vision. “What do you mean you saw the same dream?” Mr. Padilla asked.

“I saw the dream of the uh ... person with the turban,” Mr. Hassoun said.

Mr. Hassoun explained how, in his dream, the turban was wrongly wrapped and so he thought the man might be a spy, in which case, he was prepared “to split his body apart.” But then, he said, he understood that “the brother ... was a good one.”

“Yeah?” Mr. Padilla said.

In three of the seven conversations, Mr. Padilla made statements that the government has identified as “overt acts” in furtherance of the accused conspiracy.

In the first, Mr. Hassoun asked, “You’re ready, right?” and Mr. Padilla said, “God willing, brother, it’s going to happen soon.” That was the summer of 1997, a year before Mr. Padilla left South Florida for Egypt.

In the second, Mr. Padilla told Mr. Hassoun, during a 1999 conversation from Egypt, that he had asked his ex-wife in the United States to arrange for him to receive an army jacket, a book bag and a sleeping bag, supplies that he had requested because “there was a rumor here that the door was open somewhere.” In the third, Mr. Padilla told Mr. Hassoun in April 2000, that he would need a recommendation to “connect me with the good brothers, with the right faith” if he were to travel to Yemen.

Prosecutors say Mr. Padilla is mentioned, although by his Muslim name Ibrahim or by another alias, on 21 additional tapes. One of them refers to Ibrahim as being “in the area of Usama,” which the government takes to mean that he was near Osama bin Laden. But Mr. Padilla’s lawyers contest that interpretation.

“That is just nonsensical, Your Honor, that these men who for years, according to the government, have been talking in code all of a sudden are going to throw Osama bin Laden’s name around,” Michael Caruso, a federal public defender, said in court.

Mr. Padilla has pleaded not guilty. But before his case goes before a jury, his fitness to stand trial will be evaluated. On the basis of Mr. Padilla’s lawyers’ assertion that he is mentally damaged as a result of his prolonged isolation and his interrogation in the brig, Judge Cooke has ordered a psychiatric evaluation by a Bureau of Prisons doctor to be completed this week.

Friday in The Times: The only person on the American mainland still held as an enemy combatant.

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