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'Alternative' CIA tactics complicate Padilla case

Evidence against the American terror suspect was obtained through torture, his lawyers say.

By Staff writer of The Christian Science Monitor / September 15, 2006

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.

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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.

Padilla fails in bid to exclude evidence

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."

In his speech, Bush justified the harsh tactics as essential to prevent terror attacks. But he also asked Congress to formulate special rules so that Abu Zubaydah and 13 other individuals could be tried by military commissions at Guantánamo Bay, Cuba, despite their harsh treatment while in CIA custody.

The special provisions are necessary, in part, because the US criminal justice system excludes coerced statements as too unreliable to present in court. There is also a blanket ban on information obtained through torture.

Bush insists that torture was not used in the CIA operations. But he declined to identify the specific interrogation practices.

Legal experts say that procedures such as simulated drowning, induced hypothermia, and noise bombardment are highly coercive and can lead subjects to say whatever they think will help stop the harsh treatment. Human rights experts say these kinds of techniques can amount to torture.

Congress debates coercive tactics

The president's public disclosure has prompted a debate in Congress over whether to endorse the CIA's "alternative" interrogation tactics. But Bush is also asking lawmakers to grant retroactive legal immunity to US interrogators who engaged in or were present during these practices. The request is being made despite the president's assurance that they are legal and do not amount to torture.

The government has never acknowledged the identities of the two sources used for the 2002 warrant. Defense lawyers and other analysts identified them by cross-referencing the unique information the sources provided to the government with public sources and documents that matched the same information. In addition to Abu Zubaydah, defense lawyers say the second source used to obtain the Padilla warrant was an Ethiopian named Binyam Mohammed.