'Alternative' CIA tactics complicate Padilla case
Evidence against the American terror suspect was obtained through torture, his lawyers say.
When alleged Al Qaeda sympathizer Jose Padilla landed in Chicago in May 2002, he was met by federal agents armed with a warrant authorizing them to take him into custody.
To obtain their warrant, the agents told a federal judge that two weeks earlier a confidential source had revealed that Mr. Padilla was plotting to build and detonate a radiological "dirty" bomb in the United States.
What the agents did not tell the judge is that their "confidential source" was not speaking voluntarily. His information had been obtained in controversial interrogation sessions at a secret Central Intelligence Agency prison overseas.
The confidential source was a man named Zayn Abu Zubaydah, the same individual identified last week by President Bush as the first Al Qaeda suspect subjected to harsh interrogation tactics by US officials.
"We knew that Zubaydah had more information that could save innocent lives, but he stopped talking," the president said in a speech on Sept. 6. "So the CIA used an alternative set of procedures."
In 2002, the agency's pressing goal was intelligence-gathering to disrupt possible terror attacks rather than a law- enforcement operation to gather evidence that might be used against American citizens in American courts. But now, four years later, the information from those harsh interrogation sessions conducted by or at the behest of the CIA is playing an important role in government efforts to convict Padilla in a terror conspiracy case in Miami.
The case is emerging as a major test of whether such intelligence information is admissible in US courts. And it highlights the difficult debate over military commissions currently under way in Congress, which is wrestling with how best to protect national security while also preserving America's tradition of due process and fair trials.
In a series of pretrial motions, Padilla's lawyers argue that information from Mr. Abu Zubaydah and another confidential source used to justify the May 2002 warrant was the product of torture. They say information obtained through torture cannot be used in court and that any evidence seized from Padilla during his Chicago arrest must be excluded from use at his trial.
Last week, one day before Mr. Bush publicly acknowledged the secret CIA prisons and interrogations, a federal magistrate judge in Miami rejected Padilla's arguments.
US Magistrate Judge Stephen Brown ruled that defense attorneys had failed to offer enough proof concerning the identity and treatment of the confidential sources the government used to justify the warrant.
In addition, Judge Brown ruled that even if the information the confidential sources provided was the product of torture, defense lawyers had presented no evidence that the FBI agent who prepared the warrant application was aware that they had been tortured. Short of a deliberate effort by that agent to intentionally mislead the court, the defense motion must be denied, the magistrate judge ruled.
Padilla's lawyer, Andrew Patel, says the decision is being appealed to US District Judge Marcia Cooke, the trial judge in the Padilla case. He declined any further comment on the case.
In an earlier brief, Mr. Patel wrote: "The government's claim of ignorance appears either to be incredible or the product of conscious avoidance."
