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Motives of Justice Lawyers Questioned in Detainee's Case

By Peter Finn and Del Quentin Wilber
Washington Post Staff Writers
Friday, October 31, 2008

A federal judge yesterday questioned the motives of Justice Department lawyers for withdrawing allegations linking a Guantanamo Bay detainee to a "dirty bomb" plot in the United States shortly before they were required to hand over exculpatory evidence to the defense.

"That raises serious questions in this court's mind about whether those allegations were ever true," said U.S. District Judge Emmet G. Sullivan, who is overseeing a lawsuit brought by Binyam Mohammed, 30, a resident of Britain who is challenging his detention at the U.S. military facility in Cuba. Sullivan warned that "someone is going to rue the day those allegations were made" if it turns out that the government had evidence that they were unfounded.

The government said it stood by the allegations but had withdrawn them to expedite proceedings.

Despite that decision, Sullivan ordered the government to turn over any potentially exculpatory information related to the alleged dirty-bomb plot. That could force the government to account for Mohammed's disappearance from 2002 to 2004.

Mohammed said the CIA rendered him to Morocco weeks after he was arrested in Pakistan in April 2002. His attorneys argue that the government's allegations are based on confessions their client made after his detention and torture in Morocco, where, they say, he was slashed with razors.

"He parroted what his torturers wanted him to say," said Zachary Katznelson, one of Mohammed's attorneys. "All they have are Mr. Mohammed's own words, and they were extracted at the tip of a razor blade."

The government said Mohammed voluntarily confessed to a number of terrorist crimes, including the dirty-bomb plot, in 2004 at Bagram air base in Afghanistan before his transfer to Guantanamo Bay. The government has never acknowledged that he was in Morocco.

The dirty-bomb allegation was not pursued in the case of Mohammed's alleged co-conspirator, Jose Padilla, a U.S. citizen initially declared an enemy combatant but convicted in August 2007 on a lesser charge of providing material support for terrorism. He was sentenced to 17 years in prison.

A day before yesterday's hearing, the United States turned over intelligence documents related to Mohammed that have been the subject of judgments by the British High Court. The British government discovered the documents in its files and declared them potentially exculpatory, but said it preferred they be handed over by the United States because they include classified material from U.S. agencies.

The U.S. government initially resisted, releasing only seven documents, but on Wednesday it turned over the 35 remaining ones. The British court strongly hinted that it would release them if the United States refused to do so.

British officials also told the High Court this week that the "question of possible criminal wrongdoing" in Mohammed's case has been referred to the country's attorney general for investigation. It was unclear from a letter to the British court whether the probe would focus only on the actions of British agents or could also charge U.S. officials.

The allegations against Mohammed are now essentially reduced to his having attended terrorist training camps in Afghanistan.

"We have simplified this case to its bare essence," Andrew I. Warden, a Justice Department lawyer, told Sullivan.

"That doesn't ring true; it rings hollow," Sullivan said. "The government has never been concerned with acting expeditiously here."

Mohammed's habeas case was filed in U.S. District Court in 2005, about six months after he arrived at Guantanamo Bay. The government has been fiercely fighting scores of similar lawsuits filed in federal court by detainees at the facility challenging their confinement.

Besides obtaining government documents, Katznelson is also trying to interview a former military prosecutor at Guantanamo Bay who resigned citing ethical concerns; an FBI agent who investigated the dirty-bomb plot; and a suspected CIA operative who was on the flight that the defense says took Mohammed from Morocco to Afghanistan in 2004.

Sullivan set a hearing for Nov. 12 to hear Katznelson's request.

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