By Peter Whoriskey
Washington Post Staff Writer
Monday, April 23, 2007
MIAMI -- The trial of Jose Padilla, the "dirty bomber" whose alleged plotting was used to justify extraordinary presidential power, will get underway next month, and the prosecution's case is rich in atmospherics.
The evidence against Padilla and his two co-defendants includes wiretapped recordings in which the men seem to speak in code; someone spent $3,500 to buy "zucchini." They speak obliquely of travel to Kosovo, Chechnya and "the area of Usama." A "mujahideen data form" bearing Padilla's fingerprints and information was discovered at a reputed al-Qaeda hideout in Afghanistan, prosecutors said.
But for all its suggestion of jihadist intent, the indictment on charges of a "conspiracy to murder, kidnap and maim" lacks anything about the defendants being involved in any particular plot in the United States or anywhere else. That absence of violent specifics -- no who, what or when -- is expected to be critical in the trial's outcome and is a reflection of troubles in the high-profile prosecution.
At a pretrial hearing in which defense attorneys complained about the ethereal nature of the alleged conspiracy, U.S. District Judge Marcia G. Cooke, in a startling aside, seemed to agree.
The indictment "is very light on facts," she told prosecutors.
Authorities have said that Padilla, arrested in May 2002, was plotting to attack the United States with a uranium-enhanced bomb. He quickly became the face of domestic terrorism and the most prominent of the Bush administration's terrorism suspects because of the president's controversial decision to detain a U.S. citizen militarily as an "enemy combatant." Once the Supreme Court seemed to tilt against that tactic, the administration moved him to the civilian justice system.
But ever since the former gang member and convert to Islam emerged from military imprisonment and landed in criminal court in January 2006, the prosecution seems to have faltered.
The dirty-bomb plot has disappeared from the allegations. The two sources who first told U.S. authorities that Padilla was a potential dirty bomber are not expected to testify, presumably because the federal government does not want them to or because prosecutors fear the testimony would be inadmissible. One of the two sources was Abu Zubaida, identified as a top al-Qaeda operative, who says he was tortured in U.S. custody.
None of Padilla's statements during military interrogations at the Charleston naval brig is expected to be presented in court, either, even though authorities said that in the statements Padilla confirmed his interest in a dirty bomb. For those interrogations, the suspect was not offered a lawyer, as required in criminal procedures.
Now, legal experts say, the effort to convict Padilla and his codefendants as part of a murderous international conspiracy -- without linking them to a particular violent act or to a terrorist group -- marks an attempt by prosecutors to place the defendants inside an extraordinarily broad conspiracy that spans years and continents. The case cites groups in Egypt, Algeria, Tunisia, Libya, Somalia, Afghanistan, Tajikistan, Chechnya, Bosnia and Lebanon. But the tactic could backfire.
With scant links to specific violent plots, a jury or an appeals court could find the outline of the alleged murder conspiracy too vague to support a conviction.
"Describing the entire jihad movement as a single conspiracy is a bit of stretch," said Robert M. Chesney, a Wake Forest University law professor and a moderate on the issues who has written extensively about terrorism prosecutions. "At trial, they're going to have to be more specific."
Chesney said the secondary charges in the indictment -- alleging that the defendants provided "material support" for a terrorism conspiracy -- may be easier to sell to a jury.
"Even if the jury isn't persuaded that these men were part of a violent international conspiracy," he said, "they could nonetheless conclude that they were providing material support for it."
Even before Padilla's arrest, the case presented authorities with an urgent tactical dilemma.
On May 8, 2002, Padilla was on a flight from Pakistan to Chicago and was being surveilled, an FBI special agent told a judge that morning.
The question for agents: Arrest him immediately, or wait and watch?
Just a month before, a man detained in Pakistan told authorities that Padilla had been trying to develop a uranium-enhanced bomb. Then Zubaida similarly implicated him as a potential dirty bomber, according to government documents.
Agents stopped Padilla at the airport.
But in the months leading up to the trial, it has become clear that his early capture and military imprisonment may have come at a steep price: There is little presentable evidence, apparently, of his plans regarding a dirty bomb.
Now the essence of the case against Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi is that they were part of a "North American support cell" that was itself part of a vast international movement of foot soldiers, recruiters and financiers who fomented "violent jihad" around the globe.
The wiretapped conversations revealed in the indictment -- among the more than 200 that could come up at trial -- certainly suggest that Hassoun played some role in international conflicts and that he tried to conceal it.
In one call from January 1997, Hassoun is quoted in the indictment as saying, "Because they are playing football in Somalia . . . it's heating up a lot, so we're sending . . . uh . . . uniforms . . . and uh . . . sneakers for football over there." Later, he refers to a football game that has "casualties."
Prosecutors said Hassoun also sent several checks to an Islamic aid organization, described in one call as "a cover," and to its organizer. In the memo line of the checks, he wrote "Somalia," "one for Bosnia, one for Libya" and "for tourism."
Hassoun is also heard in a July 1998 call speaking with a man who said he had just entered Kosovo under bombing from the Serbs. Hassoun told the man he was sending $5,000 with Padilla.
Maybe the strongest direct evidence against Padilla will be the "mujahideen data form." At trial, a covert CIA agent -- who will be permitted to wear a light disguise of facial hair, glasses or a wig -- is expected to testify that the application form was recovered from a reputed al-Qaeda base.
Whether all that supports conviction for a murder conspiracy -- the most significant of the charges -- will be up to the jury.
The defense is expected to argue that there are not enough specifics to convict the men of the murder conspiracy. Moreover, defense attorneys note, some groups the defendants aided -- the Bosnian Muslims, for example -- had U.S. sympathy.
"They say our client conspired to commit murder, mayhem, kidnapping," Hassoun defense attorney Jeanne Baker said during a hearing. "When? Where? They say, 'Oh, he supported violent jihad.' "
But whether defendants knew about particular plots in any of these countries, prosecutors have said, does not matter. It only matters that they had agreed to aid generally in "violent jihad" around the globe.
The charges revolve around an "inchoate crime . . . rather than any particular completed operation," federal prosecutor Brian K. Frazier told the judge. "It's very hard to particularize."
Staff researcher Julie Tate contributed to this report.