Former Chicago gang member Jose Padilla was identified by top Justice Department officials after his 2002 arrest as having plotted with al Qaeda bosses to kill Americans and of conspiring to build a “dirty bomb,” although an indictment unsealed against him in federal court this week makes no mention of either.
The accusations against Padilla are clearly outlined in charging documents released earlier this month by the Pentagon against Binyam Ahmed Muhammad, Padilla’s suspected co-conspirator whom the Bush administration intends to try by special war-crimes tribunal at the U.S. Naval Base Guantanamo Bay, Cuba.
The documents said Padilla and Muhammad worked together in 2001 on plans to “make an improvised dirty bomb,” and maintains both met directly with top al Qaeda chiefs, including suspected September 11 mastermind Khalid Shaikh Mohammed.
On Padilla’s arrest by FBI agents in 2002, then-Attorney General John Ashcroft described him as a “known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States.”
But the federal court charges against Padilla, a U.S. citizen, make no mention of any such plot. The words “dirty bomb” do not appear in the indictment, unsealed Tuesday, nor does any specific mention of al Qaeda. Instead, it speaks of his involvement in a North American terrorist “support cell.”
Legal scholars said the gap between the federal court indictment and the accusations made against Padilla in Muhammad’s Pentagon charge sheet exposes a core challenge the government faces in attempting to bring terror suspects to justice in the post-September 11 world.
Padilla has long been at the center of a court battle over whether U.S. citizens may be held as “enemy combatants.” The term is used by the Bush administration to describe such foreign terror suspects as those being charged in the special war-crimes tribunal.
While he has not been held at Guantanamo, the government has held Padilla as an enemy combatant in military custody since his arrest. But in March, a federal judge ruled he must be released or charged with a crime.
Jeffrey F. Addicott, director of the Center for Terrorism Law in San Antonio, said the government likely dropped the “dirty bomber” accusation from Padilla’s indictment for national security reasons.
With the case going forward in federal court, rather than the war-crimes tribunal — like that of Muhammad — Padilla “gets the full protections of due process rights, including the right to confront the witnesses against him,” Mr. Addicott said. Such rights are dissolved in the tribunal, since its design allows prosecutors to keep their evidence classified.
“The government’s dilemma is, we either charge him with [the dirty bomb] offense which would entitle him to full access to the witnesses or settle on charging him with other offenses that don’t entitle him access to those witnesses,” Mr. Addicott said. “They may have very valid intelligence and national security concerns as to why they don’t want him to have access to those witnesses.”
Ken Hurwitz, a lawyer with Human Rights First in New York, said the “dirty bomb” accusation may have been dropped from Padilla’s indictment because it is based on self-incriminating statements drawn from Padilla under questionable circumstances during his lengthy detention as an enemy combatant.
“What seems clear is that they want to charge him with stuff in which none of their evidence can be tainted by the interrogations while he was in incommunicado detention or otherwise under stress and without the assistance of counsel,” Mr. Hurwitz said.
He cited June 2004 remarks by former U.S. Deputy Attorney General James Comey, who said the challenge of charging Padilla in federal court would be that prosecutors “obviously, can’t use any of the statements he’s made in military custody.”
On Tuesday, Attorney General Alberto R. Gonzales dismissed Mr. Comey’s remark as “legally irrelevant” to the charges leveled against Padilla in federal court.
Jerry Seper contributed to this report.