Padilla terror trial meets world of espionage
In the case against Jose Padilla, a key witness – a CIA agent – testifies under a pseudonym.
from the May 18, 2007 edition
Page 3 of 3
The agent, who said he could neither read nor speak Arabic, testified that he examined the documents and then locked them in a secure room before sending them to the Federal Bureau of Investigation for analysis. It wasn't until the documents were translated from Arabic to English in the US that officials discovered the alleged Padilla data form.
The agent's testimony does not establish the origin of the data forms, only how the government says it first obtained the documents. The agent's testimony about how the documents got into the Afghan's pickup truck is hearsay – based entirely on the statements of the Afghan. Such evidence is usually inadmissible as proof in a trial. However, in a trial involving classified information, the judge is empowered to admit evidence that otherwise might not be admissible.
One way to establish the origin of the Mujahideen Data Form would be with testimony from the unidentified Afghan with the pickup truck. But his name and the name of his tribal leader appeared to be off-limits to Padilla defense attorney Orlando do Campo during his cross-examination of the CIA agent.
Legal analysts say it is probable that the scope of Mr. do Campo's cross-examination was sharply limited by Judge Cooke in earlier closed-door hearings designed to prevent defense attorneys from asking questions that might touch on classified intelligence sources and methods.
Under the Classified Information Procedures Act, it is up to a judge to decide how best to balance the need to protect national-security secrets in the context of a fair trial.
During his cross-examination, do Campo asked about the possible motives of the unidentified Afghan who delivered the documents to the CIA. The agent responded: "I have a difficult time speaking to their motives."
Fingerprints on the data form
In earlier court filings, defense lawyers have suggested that the Padilla data form may have been filled out by someone other than Padilla, using two different kinds of ink typically not found outside North America.
Federal prosecutors say that tests found Padilla's fingerprints on the form, proving that he filled it out. But defense lawyers counter that his fingerprints were found only on the first and last page of the five-page document. They say the tests show no palm edges or other indications that Padilla actually filled out the form. And there are many other fingerprints on the pages, they say.
"The fingerprint evidence is far more consistent with Mr. Padilla being shown the form during his three years and eight months of interrogation in [the military brig in] South Carolina than with having completed the form," writes Michael Caruso, another of Padilla's lawyers, in a motion to the court filed last month.
Mr. Caruso urged the judge to permit the defense "considerable leeway" to investigate the chain of custody of the data form and that the defense be permitted to engage in vigorous cross-examination. That motion appears to have been denied.
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