By Peter Finn
Washington Post Staff Writer
Wednesday, October 15, 2008
The U.S. Justice Department has withdrawn a series of allegations made in federal court that tie Binyam Mohammed, a British resident held at Guantanamo Bay, to a plot to explode a radioactive "dirty bomb" in the United States, blow up apartment buildings here and release cyanide gas in nightclubs.
Defense lawyers said the decision should force the Pentagon to drop charges of conspiracy and material support for terrorism against Mohammed, which were filed by military prosecutors in May. The charges, the lawyers said, are spurious and based on false confessions obtained through torture.
They said the Justice Department dropped key allegations to avoid having to turn over evidence of abuse. The agency did not respond to a request for comment.
The dirty-bomb allegation was also never pursued in the case of Mohammed's alleged co-conspirator, Jose Padilla, a U.S. citizen initially declared an enemy combatant but convicted in federal court in August 2007 on a lesser charge of providing material support for terrorism. He was sentenced to 17 years in prison.
"There are no serious, hard charges against Mohammed," said Air Force Lt. Col. Yvonne R. Bradley, his military attorney. "The whole thing the government was hanging its hat on, pursuing Mr. Mohammed, was the dirty bomb."
The Pentagon's convening authority for military commissions examines each case assembled by prosecutors before deciding whether it should be referred to a military court for trial at Guantanamo Bay, Cuba.
Mohammed's case is "under review," said Joseph DellaVedova, a spokesman for the Office of Military Commissions.
The Justice Department's decision came after a Washington federal judge, in a habeas corpus proceeding, ordered the government to turn over all available exculpatory evidence to Mohammed's attorneys, according to documents filed by government attorneys. The material includes 42 classified British intelligence documents, among them communications with the United States about Mohammed's fate after his arrest in Pakistan in April 2002.
Mohammed's attorneys said they think the documents could shed light on the period between his disappearance in July 2002 and his transfer to the military prison at Guantanamo Bay in September 2004. Mohammed, a 30-year-old Ethiopian native, and his attorneys charge that he was secretly transferred by the CIA to Morocco, where he admitted to various plots only because he was tortured.
The High Court in London ordered the release of the documents to Mohammed's attorneys, but the British government argued that they were covered by "public interest immunity" because their release would damage intelligence cooperation and relations with the United States. The British government, however, said U.S. authorities had copies of the documents, effectively transferring any decision-making about their release to Washington.
Mohammed's attorneys continue to fight the British government's decision in the High Court.
In the interim, Judge Emmet G. Sullivan of U.S. District Court for the District of Columbia ordered the United States to release exculpatory material by Oct. 6. That day, the Justice Department filed a notice with the court that it was withdrawing assertions contained in its original filing to justify Mohammed's continued detention at Guantanamo Bay.
"It's no coincidence that this happened when the judge ordered discovery," said Clive Stafford Smith, one of Mohammed's attorneys and the director of Reprieve, a London-based group that advocates for the human rights of prisoners. "It's clear they think that by dropping the allegations they can avoid having to turn over the documents."
Smith said Mohammed's attorneys would continue to insist in federal court that all documents be disclosed. The United States has allowed one of the lawyers to see seven of the British documents. Their contents are classified, and Smith and other lawyers would not discuss them.
The withdrawn section of the Justice Department's original filing deals with allegations that Mohammed planned "to launch a terrorist attack inside the United States." It includes details about alleged discussions by al-Qaeda members on using dirty bombs, using natural gas lines to destroy buildings and releasing cyanide gas. It mirrors the material in the military prosecutors' charge sheet.
"One of the purposes for the attacks on the United States was to help 'free the prisoners in Cuba,' " wrote military prosecutors.
Stripped of the core allegations, the government case focuses on Mohammed's training at al-Qaeda camps in Afghanistan. His attorneys don't deny that their client received training in Afghanistan, but they said he wanted to fight in the war-torn Russian republic of Chechnya.
Bradley, Mohammed's military attorney, said her client should be returned to Britain, whose government has asked the United States to release him.
Staff researcher Julie Tate contributed to this report.