05/30/07 – Warren Richey – The Scott Horton Show

For Antiwar.com and Chaos Radio 95.9 FM in Austin, Texas, I'm Scott Horton and this is Antiwar Radio.
Alright, my friends, welcome back to Antiwar Radio.
I'm your host, Scott Horton, and I'm joined on the phone now by Warren Ritchie, a reporter for the Christian Science Monitor.
Welcome to the show, Warren.
Yeah, thank you very much.
It's very good to have you on here.
Big fan of your paper.
You guys tend to not just go along with whatever the AP would have us believe a lot of the time, and I appreciate that.
Well, we try to call it the way we see it.
Yeah, and I really mean that.
Especially ever since the run-up to the Iraq war, I found a lot of really, really good reporting in the Christian Science Monitor.
Very valuable paper.
And your recent article is a great example of that.
My understanding is you've been in Miami from the beginning of the Padilla trial up until yesterday, is that right?
Yeah, yeah.
That's right.
I'm actually in Washington, D.C. right now, but yeah, I have been in Miami covering the Padilla trial.
Okay, and let me just remind the audience really quickly, for those who don't remember Jose Padilla, he was arrested in 2002 on a material witness warrant.
John Ashcroft, live from Moscow, announced that he was an enemy combatant and had been turned over to the Navy.
It turns out a judge in New York had demanded to see the, well, he wasn't accused, the witness, and rather than let the judge see him, they turned him over to the Navy, and then fast forward to just last year, I think it was, the beginning of last year, the end of 2005 maybe, the Supreme Court was about to hear his case, and legal experts agreed that the Supreme Court was probably going to rule that this guy had to get a trial in a civilian federal criminal court, just like anybody else, an American citizen arrested on American soil.
So rather than fighting it in the Supreme Court, the administration decided to take his standing away in that case, and they did that by going ahead and indicting him in federal court for conspiracy to commit acts of terrorism and so forth.
And he's now on trial in Miami with two other defendants on terrorism charges, and apparently, correct me if I'm wrong, Mr. Ritchie from the Christian Science Monitor, but the original accusations that Jose Padilla was going to set off a radioactive dirty bomb and or blow up high-rise apartment complexes here in America, those charges do not appear anywhere in the indictment or in this case, is that right?
Well that's right, and the charges in Miami aren't actual terrorism charges, they're material support and conspiracy charges.
Now that doesn't make much difference if he's convicted, because all of these three men, if they're convicted of all the charges, will face potential life in prison.
But there's a difference between blowing up something and conspiring to blow something up.
Now the thing that's interesting about the Miami case is that it's primarily a material support case, meaning that they did something to help the alleged terror groups overseas to commit terrorism.
And what they're alleged to have done is provide money and recruits and material to those organizations.
In addition, and this is a really important part of this case, they're alleged to have conspired with these groups to commit murder and to maim people and to kidnap people through those violent acts overseas.
Even though it's a conspiracy charge, and frequently people think that it's easy to prove a conspiracy, there's going to have to be some kind of proof showing that these men who are on trial planned to participate in those violent activities.
I'm no legal expert at all, I haven't been trained in a single day of law school, but when I read the Padilla indictment, and it's been since it came out, but when I read it, the impression I got was, oh, so these guys knew a guy who knew a guy who went and fought in the Holy War in Chechnya or something?
Is that basically what this case amounts to, is some degrees of separation between somebody who did something and somebody who knew somebody who knew him?
Well, let me back up a little and answer something that you asked earlier.
One of the reasons you don't see, you know, initially everyone knows Jose Padilla as the so-called dirty bomber, the guy who was plotting with Al-Qaeda to detonate a radiological bomb somewhere in the United States.
Those allegations aren't in any court filing, they're not in this case, not because people in the government don't believe that that's what was going on, it's because of the way the U.S. government obtained that information.
It was obtained from individuals who were in CIA black sites overseas through methods that have been less than clear.
One of the sources of the information has alleged that he was tortured.
In fact, maybe three of them have alleged that they were tortured and that the information that they gave concerning Padilla was obtained under torture.
Now, those are their allegations and it's unclear whether in fact there was torture, but there's no doubt that those questions were answered under coercive conditions.
In the U.S. criminal justice system, information obtained under coercive means can't be admitted in a court of law because it's generally unreliable.
The thinking is that if you hurt somebody bad enough, they'll say anything to make you stop hurting them.
Our justice system is designed, at least notionally, as a search for truth.
If you're searching for truth, then you want people to say the truth, and you want the government to be working toward establishing the truth.
The evidence that came from overseas that led to those statements by former Attorney General Ashcroft and others can't be admitted in a court of law because of how they were obtained.
In addition, there was information that was obtained from Mr. Padilla himself, and that was also obtained regardless of whether or not he was tortured while he was in military custody.
It's unclear at this point whether in fact he was or wasn't, but what is clear is that the conditions under which he was held and interrogated were coercive, and so those statements can't be admitted in court as well.
So the government is left with the difficult task of having to cobble together a case with evidence obtained in other ways, the kind of methods that we usually see in important cases in U.S. courts.
And that's why the indictment is somewhat thin.
Well, are we assuming then that it would be more substantial if they were allowed to use some of this other information, or do you think that this is really all they have because if they got it under duress, it's probably not true anyway?
Well, it depends.
You could debate this.
What if the government brought everything in?
What if they said, okay, here's everything we got, and we're going to let the defense fully explore how these witnesses were treated?
Well, it would depend on how the jury considered that information, and you can think about it yourself.
If you were sitting on the jury and someone came in and said, well, I did this to an individual, and just prior to this individual saying this information, you'd want to know whether that information was reliable or not.
You might want that individual to come into court in front of you and say, do you now stand by those statements?
In other words, you could bring them in later and say, okay, you're not being tortured now.
What you said then, was it true?
Right.
And, you know, that would be one way to...
Well, is the defense asking for that?
Is the defense trying to get these people to come in, or I guess it's not admissible because it's not part of the prosecution's case at this point, right?
No.
Well, the government really doesn't want to open that door.
The government doesn't want to go down there.
They want to keep that part.
They don't want anybody looking at what has happened behind the scenes with these individuals in terms of counter-terrorism interrogation.
They just want to keep that door closed.
And the government has said, we won't bring that stuff in, and then the defense now has tried to bring some of it in, but the judge has ruled against the defense in those areas.
And so the trial really is confined, to some extent, so far.
I mean, this is one reason to watch this case very closely, is to see if any of these doors open by anybody.
If the government tries to bring some of this information, that'll be an important thing that should be watched very closely and reported on.
But so far, it looks like they're going to focus on the limited amount of evidence in the public record.
And so it means that it's an interesting case from the perspective of the government kind of has a hand tied behind its back.
And so we'll have to see what the jury does.
Right.
Well, and as you say, the defense in a way does, too.
They've tried to get some of this information in, and I believe, as you said, the judge has ruled against them.
My understanding was that the judge has said basically that anything that has to do with Padilla's custody or the time he spent held in the custody of the U.S. Navy, whether he was tortured or anything else, it has nothing to do with this case.
Just because the Navy tortured him doesn't affect the Department of Justice's case here, and so the defense may not bring up any of that.
That's right.
And there is a counterargument, of course, in the defense.
One of the arguments that the defense makes is that that's not entirely true.
When you take someone and hold them for a period of years, Mr. Padilla was held for three years and eight months in military detention, and for much of that time was held without access to a lawyer, they say that because of that treatment he has been unable to assist them fully in his defense.
And so they're basically saying that their ability to defend him has been prejudiced by this pretrial detention without access to a lawyer, access to his family, and others.
It seems kind of unfair for the judge to say, oh, well, the poor Justice Department, it's not their fault.
I mean, the Attorney General and the Secretary of Defense are both members of the same cabinet, right?
It's not that he was arrested in some foreign country and held by him this whole time.
Yes, but it's the government.
That's why it's the government that has conceded that it won't bring in this other information that they obtained through intelligence.
And so they're sort of saying, okay, we're going to pay the price.
And your description earlier was correct, that what's happening here is they were holding him as an enemy combatant completely outside of the criminal justice system.
And so those protections that are there for criminal defendants didn't really apply to him.
Although he did have some very fine lawyers working on his behalf to raise this constitutional issue to the Supreme Court, it was only on the eve of the Supreme Court potentially taking this case that the Defense Department and the President re-designated him so that he could be moved into the criminal justice system.
And so then you get a situation where the prosecutors have to scramble with whatever evidence they can get.
Right, and right now we're still at the state's part of the trial, and the defense hasn't had their turn yet, right?
That's right, yeah.
The government's case is supposed to last, I don't know, several months.
Several months, okay.
Well, I wonder if you're familiar at all with the story, and I'm sorry I wish I had remembered earlier and looked up the man's name, but there was a news story that said that the FBI agent, direct quotes from the FBI agent who originally detained Padilla on a material witness warrant, that he was trying to flip Jose Padilla and make him the center of a sting operation to set off a radioactive dirty bomb.
And that Padilla said no.
And then they decided he was an enemy combatant and turned him over to the Navy in the name of he was part of a plot to set off a dirty bomb, but there's direct quotes from the FBI agent who was originally handling the case who said, I didn't think he was a danger at all.
I wanted to use him to set up a sting operation.
Now, I haven't seen the, I've seen who those agents are and what they wrote, but I haven't seen those statements.
But it sounds, well, I don't know that they wanted to set off the dirty bomb, but I do know that the agents, when they first approached Padilla at the airport...
Oh, no, I'm sorry.
I didn't mean to say that they wanted him to actually set off a bomb, but that they wanted him to set up a plot to set off a bomb, and then they would be heroes and make a bust and that sort of thing.
Well, I think what they were doing, I think what they were interested in doing is if they could have flipped Padilla, so to speak, if they could have gotten Padilla to work with them, they would have used him to uncover the rest of the plot.
Because remember, when Padilla comes into the country, the government thinks that there's an ongoing plot to detonate a dirty bomb or blow up apartment buildings.
They don't know what's out there.
They don't know who else is out there.
They don't know that there aren't, like, the 9-11 attack, that there might not be 10 other or 15 other people out there, and that all they need is Padilla to show up and then, boom, another 9-11 happens.
I mean, in fairness to the government, they don't know what they don't know.
And so when he comes in, they sit him down, and it's really kind of a pretext, because he comes into the country with something over $10,000 that he's carrying, and he'd reported about $8,000.
And so they say, well, you violated the law because you didn't report the correct amount.
When, in fact, it doesn't seem like he was trying to sneak into the country with a huge amount of money.
I mean, he had a lot of money, but he reported that he had a lot of money.
If he really is a terrorist coming into the country, $8,000 might be enough to do what he wants to do.
But anyway, they sat him down, and first they wanted to gather as much information as they could, and they wanted to gauge whether or not he would be cooperative or not.
And so they asked him a series of detailed questions.
They already know that he's been overseas and where he's been, but they don't entirely know what he's up to.
And so when they determined that he wasn't going to be cooperative, then they read him his rights, his Miranda rights, and they then used their material witness warrant to take him into custody.
And when they do that, a material witness warrant sounds very benign.
It sounds, oh, well, they just want to hold him for the grand jury.
But in fact, that's not how material witness warrants have been used in the War on Terror.
They've really been used as a mechanism to really frighten people into cooperating with the government.
They want to show you that they can basically destroy your life, and if you want to cooperate, great.
If you don't, well, then this is what you're going to face, because immediately he goes into the high security wing of the detention facility in New York with strip searches and the whole thing.
I mean, there's nothing subtle about any of this.
It's you either help us or we're going to make your life very difficult.
That's how it all started.
That's quite a contrast.
I mean, you have to admit, well, I found the quote here.
I didn't want to arrest him, said Special Agent Russell Fincher.
I needed his cooperation.
He said the agency had hoped Padilla could provide information about an Al Qaeda plot to detonate a radioactive device or so-called dirty bomb on U.S. soil and needed an insider.
So I didn't want to arrest him.
I thought that he could probably be useful and wasn't so dangerous that we could use him in a sting operation.
To go from there to this guy is so dangerous that he doesn't get a trial, we turn him over to the Navy, I think that's pretty shocking, particularly when the fact that, quote, I didn't want to arrest him doesn't come out until July 2006, after this guy's been in custody being, as we now know, under the no-touch torture expertise of the CIA and the military while he was in the brig there.
This is an American citizen arrested unarmed on American soil.
They wanted to use him as a snitch.
Well, yeah, they wanted him to identify who else was in the country because they thought there was an ongoing plot to, you know, that there was a weapon of mass destruction, there soon might be a weapon of mass destruction, that there were others who might be even more capable than Padilla to carry it out.
And so they were operating under the assumption that there was an ongoing plot.
Well, apparently they were also operating under the assumption that this guy's not so dangerous that we can't let him out on the street.
Oh, well, I'm not sure about that because, remember, they had another option.
They didn't have to exercise the material witness warrant.
They could have let him go.
They could have said, well, okay, you know, you didn't report this extra amount of money, you know, we're going to let you slide this time.
And then they keep him under surveillance.
But you know what I mean?
I mean total surveillance, and so they can identify who else he goes to see.
Sure, what I mean, I'm sorry, you might misunderstand.
I probably didn't say it very clearly, but basically what I mean is that if he had said, okay, fine, I'll be your snitch on the inside of this plot or whatever, then if he had agreed to go along, they presumably would have let him go out the door.
Oh, yeah, but they would have kept him under complete, I mean, they would have really watched him.
If he had gone, and there would have been a series of, you know, I mean, they do that all the time in drug cases.
Sure, sure, I understand, but you know, in a drug case, it's not the same thing as this guy was going to nuke us, and so we have to turn him over to the Navy to be tortured, you know?
That's correct.
I mean, even in America, we take the most heinous child killers, and we give them fair trials.
We don't turn them over to the Navy to be tortured.
And particularly when you're talking about a guy who apparently, they were willing to trust him to be, you know, their inside guy.
You know, to go undercover for them or whatever.
Yeah, but they would have, I don't know that they would have trusted him.
They would have used him to uncover the rest of the plot, and then they would have probably put him into the brig in South Carolina.
Right, and I'm sorry, I'm beating a dead horse to death with all that.
Let's move on to some of the particulars of this trial.
I remember, I guess a week or two ago, they talked about this job application that Padilla had filled out, and yet there were questions raised by the government's own witnesses as to whether this implicated him in being a member of Al Qaeda or not.
Yeah, it's very interesting because this is a key, this is one of the pillars of the government's case.
It's called the Mujahideen, it's what the government calls the Mujahideen Data Form.
And apparently when you arrive at, or when you're approaching the Al Farouk camp, at least this is how it's been presented at the trial, you are presented with an application, and the application asks for all kinds of information, you know, personal information, your name and your parents' name and your address, and you know, that kind of thing.
And his name, it was filled out in a name that he was believed to be using at the time.
It wasn't filled out as Jose Padilla because it was filled out under, I think it's Muhajer al-Muhajer, the immigrant, it was just a kind of a pseudonym that he was using at the time.
But what's interesting about this document, and some of the information in it corresponds, it's Jose Padilla's birthday and his date of birth, and it indicates that this particular individual speaks both English and Spanish because Padilla is of Puerto Rican heritage and so he also spoke Spanish.
So there are similarities, but the defense, of course, it's the defense's job to try to raise reasonable doubt in the minds of the jurors and to force the government to prove its case.
And so the defense points out that there are two different kinds of ink used in the filling out of this form, that it appears that it's been completed by more than one person.
And the real interesting evidence presented by the government in their opening statement to the jury, they said, you know, we've got this Muhajideen data form and we have proof that Padilla filled it out because his fingerprints are on the form.
Well, I mean, I've covered a lot of trials, that's pretty good evidence, his fingerprints are on the form.
Well, it turns out on cross-examination by the defense, they asked the government's own fingerprint expert, okay, now where are these fingerprints?
Well, the fingerprints, it turns out, are on the first page and the last page.
And the defense attorney has the expert hold a copy of these documents in the way that would have resulted in the fingerprints.
And it's essentially, if I handed you, it's a five-page form, if I handed you the form and said, is this your form, and you took a hold of it, that's how you get the fingerprints.
So it's like eight on the bottom and two on the top, thumbs on top and fingers on the bottom kind of thing?
Yeah, thumb on the top and a thumb on the back.
And what the defense is suggesting to the jury is that, and eventually they'll argue this, I suspect, that Padilla might have been handed this form at a later time.
Like when he was in custody in the military brig.
And that, in fact, the fingerprints don't prove that he filled out the form or that the prints were made at the time he filled out the form.
They prove that at some time he held the form.
Well, and didn't they also have one of the prosecution witnesses say that, who was supposed to say that, yes, this application definitely means that he's a member of Al-Qaeda or something, but then didn't he admit under cross-examination that when he filled out his version of the application, he was then given a choice?
Are you sure you want to join Al-Qaeda so that this doesn't necessarily mean he had even done anything?
That's right.
That witness was Yahya Goba, who is an American Muslim who went over and went to the al-Faruq training camp and went through the training.
And he came back to the United States and was living in the U.S. and was working quietly and was discovered by the FBI and pleaded guilty to providing support to Al-Qaeda and is now serving a 10-year prison sentence.
And so he's cooperating to reduce his sentence.
And as part of his cooperation, he's agreed to go to various trials and testify about his experiences.
And so, yeah, he testified that he filled out a similar form just before he went into the al-Faruq camp, but the odd thing about his testimony is he said, oh, yeah, but everything I put on that form, with a few exceptions, was false, was false information.
And he said he had been advised to do that to protect himself.
And so it raised questions about the importance of this form as a sort of document that would lead to operations with Al-Qaeda.
Sounds pretty thin to me.
Well, a lot of it depends on how the jury views this.
The jury may completely accept the way the government is putting together its case, or the jury may completely be aligned with the defense, or, which is most likely, the jury at this point is somewhat conflicted because there's some evidence going one way and there's some evidence going the other way and there is a lot of kind of murky.
And that's the way a lot of trials, that's the way a lot of trials proceed.
The unusual thing here is that because of who this fellow is and how famous he is, it's very unusual to have someone of this stature with a case that is so thin.
Yeah, right, the biggest announcement in the world followed by the thinnest prosecution you could imagine.
That's what it seems like.
Yeah, what it points up is the difficulty of pursuing the war on terror and an emphasis on gathering intelligence on one hand, and on the other hand, wanting to use the criminal justice system to prosecute some of these individuals because those two goals don't always work together.
And so, from the beginning, if they had taken him into custody and given him a lawyer from the start, and then, after giving him Miranda warnings and access to a lawyer, and then questioned him, and then obtained statements from him, they could use those statements in court and it would be a much stronger case.
But because they went a different way, and I have to say, the government thought that there was an ongoing plot, and so these things weren't done just to do them.
The government took this intelligence gathering approach because they thought the country was in peril.
They wanted to save thousands of lives.
Frequently, we look at these things as kind of a black and white, good guy, bad guy thing, but the government officials who were working on this case were doing what they were doing out of a sense that we were in peril as a country.
Yeah, and Paul Wolfowitz, who was the Deputy Secretary of Defense at the time, said that it didn't look to him like there was any plot beyond some, quote, fairly loose talk.
I mean, that's the guy who was basically in charge of holding this guy.
There was.
And from the beginning, there were people who were saying this, this isn't what it appears, this isn't what it appears, but after the fact, you can sort of see it and put it into perspective, but as it's going on, if it's your responsibility, and I don't mean to defend, I'm just trying to describe Well, you're a reporter, you're doing a great job, and I really appreciate your perspective here, and making sure that we stay on point here and don't just get after condemning John Ashcroft or whatever, but get to the truth here, I want the truth.
Okay, because what's going on here, if it's my responsibility, I want to make sure that I'm not the guy who said, oh, we don't have to worry about this fellow, and then suddenly, boom, there's a mushroom cloud somewhere.
And actually, I don't want to give you the wrong idea.
These guys were never talking about using nuclear weapons.
They were talking about having an explosive device that would spread radioactive material.
It's much, much different.
It's just not even in the same league.
It's much more, anyway, you get the idea.
But the point is, you don't want to be the one, you don't want to be the one, and particularly after 9-11, you don't want to be the one who's going to let somebody do something.
And so, a lot of officials are acting in abundance of caution.
Now, where the debate begins is, okay, under those circumstances, then what do you do?
How do you proceed?
Well, I go with the Bill of Rights.
Is it appropriate?
Yeah, exactly.
Is it appropriate to sort of push aside those protections that have applied traditionally and go a different way, or should we?
Anyway, that's where the debate is.
Sure.
Let me ask you this.
I've gathered this impression from scant information, really, is why I need you to help me understand.
It seems to me that the only reason these other two guys were indicted was so they could tack Padilla's indictment onto theirs and make believe that they had a real trial here.
I'm reading in your most recent article that these two others had been under surveillance since 1993, and you know that the state had recorded hundreds of thousands of phone calls.
Apparently, they didn't seem to think that these two were very dangerous for some extended period of time before finally indicting them.
Were they just trying to cover and say, no, really, this is a real terrorism case.
We promise.
See?
And so that they could try to make, you know, bolster the case against Padilla?
Well, no, I think it went the other way around.
I think it was the other way.
These two guys, Adham Hassoun and Kifat Jayousi, they're the co-defendants on trial with Padilla.
There are some other co-defendants as well, but they're not in the country.
They're fugitives.
But these two guys were in government custody, and they had been under surveillance, it's true, since late 1993.
Because the government suspected they were connected to terrorists.
And again, this is another example of the difficult intersection between intelligence gathering and law enforcement.
Because the operation against Hassoun and Jayousi was an intelligence gathering operation.
They wanted to listen so that they could hear and be prepared if there was a bomb plot that was coming up or something else.
So it was under a FISA warrant, not a regular criminal division warrant.
That's right.
These were FISA intercepts.
And as near as I can tell, they were, well, I mean, I can't tell, as the court has ruled that these FISA intercepts were legal.
What I'm not clear about is what happened to the intercepts later during the Bush administration when we know that there were some other procedures that were undertaken.
I'm not sure that this case falls under those, you know what I'm talking about?
Right, right.
And just to let you know here, we're just under two minutes left.
Okay, okay.
But at any rate, what happened is that these guys were under surveillance and the government was considering, after the 9-11 attacks, the government then took Hassoun into custody and was considering what to do with him, whether to deport him or whether to charge him.
And eventually the government got around to charging him.
Now, when that situation we talked about earlier with the Supreme Court and Padilla came up, the government looked at its options, and one of its options was to, in a sense, to put him into the case with Hassoun, and that's what they did.
And so they moved him out of the jurisdiction of the Supreme Court and put him into that Miami case because there was some overlap between Hassoun and Padilla.
But to put it into perspective, of the 300,000 recorded phone conversations, I think 79 of the conversations that are contained in the government's case today came from Hassoun.
Seven of those conversations involved a recording of Padilla's voice.
That's out of 300,000 intercepted conversations.
And you say in your article that 285,000 of these are being kept from the defense where they might find Brady material.
Yes, those conversations have not been summarized, and so because they have not been summarized, they're effectively out of the reach of the defense.
All right, well, I hope that you continue to cover this case and that we can bring you back to explain further developments over the months that it's apparently going to take to hold this trial.
Yeah, I'm looking forward to it.
I plan to be keeping an eye on the case, yeah.
Great.
All right, thanks very much for your time today, everybody.
Warren Ritchie from the Christian Science Monitor.
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