Terror Watch: Facing Defeat?

Justice Department lawyers, fearing a crushing defeat before the U.S. Supreme Court in the next few weeks, are scrambling to develop a conventional criminal case against "enemy combatant" Jose Padilla that would charge him with providing "material support" to Al Qaeda, NEWSWEEK has learned.

The prospective case against Padilla would rely in part on material seized by the FBI in Afghanistan--principally an Al Qaeda "new applicant form" that, authorities said, the former Chicago gang member filled out in July 2000 to enter a terrorist training camp run by Osama bin Laden's organization.

But officials acknowledge that the charges could well be difficult to bring and that none of Padilla's admissions to interrogators--including an apparent confession that he met with top Al Qaeda leader Abu Zubaydah and agreed to undertake a terror mission--would ever be admissible in court.

Even more significant, administration officials now concede that the principal claim they have been making about Padilla ever since his detention--that he was dispatched to the United States for the specific purpose of setting off a radiological "dirty bomb"--has turned out to be wrong and most likely can never be used against him in court.

The reassessments of Padilla come amid a growing sense of gloom within Justice that the Supreme Court is likely to rule decisively against the Bush administration not just in the Padilla case but in two other pivotal cases in the war on terror: one involving the detention of another "enemy combatant," Yaser Hamdi, and another involving the treatment of Al Qaeda and Taliban prisoners at Guantanamo Bay, Cuba. In the Padilla and Hamdi cases, the administration is arguing it has the right to hold the two U.S. citizens indefinitely without trial. In the Guantanamo case, the administration argues that foreign nationals being interrogated there do not have the right to challenge their detention in federal courts.

Lawyers within the Justice Department are now bracing for defeat in both the enemy-combatant and Guantanamo cases, both of which are expected to be decided before the Supreme Court ends its term at the end of the month, according to one conservative and politically well-connected lawyer. "They are 99 percent certain they are going to lose," said the lawyer, who asked not to be identified. "It's a very sobering realization."

While Supreme Court forecasts are hazardous at best, the conventional wisdom among former Supreme Court clerks is that recent disclosures about the Abu Ghraib prison scandal and internal administration memos disavowing compliance with international treaties involving treatment of prisoners has badly hurt the government's arguments before the court and turned two key "swing" justices--Sandra Day O'Connor and Anthony Kennedy--against it, the lawyer said.

Insider thinking within Justice has the Supreme Court voting six to three against the administration on Guantanamo and by a perhaps even larger margin in the Padilla and Hamdi cases.

A newly declassified Pentagon report on Padilla--released by Deputy Attorney General James Comey--was in part intended to influence public thinking about his case and establish more clearly that Padilla was a dangerous Al Qaeda operative who intended to inflict harm on innocent civilians.

But some little-noticed passages in the report also raise new questions about the accuracy of previous administration statements about Padilla--questions that could subtly undermine one of the administration's main positions before the court: that in times of war, it should be trusted when it locks up American citizens without trial in order to protect the public.

The alleged dirty-bomb plot--with its stark imagery of radioactive terror--was central to the entire rationale the Bush administration used from the outset when it took the extraordinary step of declaring Padilla an "enemy combatant" who could be detained indefinitely in a military brig without access to a lawyer.

"In apprehending [Padilla] as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb'," Attorney General John Ashcorft stated at a press conference from Moscow on June 9, 2002, announcing Padilla's detention.

Two months later, in a declaration submitted in federal court to justify the detention, Pentagon special adviser Michael Mobbs stated that intelligence reports had established that Padilla and an unidentified associate had discussed with Abu Zubaydah a plan "to build and detonate a radiological dispersal device' (also known as a 'dirty bomb') within the United States, possibly in Washington D.C." The Mobbs declaration, conceded, however that the so-called dirty-bomb plan of Padilla "was still in the initial planning stages, and there was no specific time set for the operation to occur."

But passages in the recently declassified Pentagon report on Padilla suggest that additional information learned by the U.S. government after the Mobbs declaration--but never shared with the courts reviewing his case--puts the supposed dirty-bomb "plot" in a different light.

While Padilla did indeed propose such a mission, top Al Qaeda leaders were cool to the idea and directed him to pursue a more conventional plot to blow up apartment buildings, the report states. After meeting with Abu Zubaydah--who, according to another Al Qaeda detainee in custody, thought the "dirty-bomb plan would not work" and "would cause too much of a problem for al Qaeda," according to the report--Padilla was sent to Pakistan in March 2002 to meet with master Al Qaeda operational planner Khalid Shaikh Mohammed. Padilla then proposed the dirty-bomb plot again, but Mohammed also was "very skeptical" about the dirty bomb plot and "instead suggested that Padilla and his accomplice undertake the apartment-building operation," the Pentagon report states.

Padilla, for his part, has told interrogators that he never swore an oath of allegiance to Al Qaeda and, after spending time in one of the terror group's training camps, had second thoughts and wanted to return home. "He says he and his accomplice proposed the dirty-bomb plot only as a way to get out of Pakistan and avoid combat in Afghanistan, yet save face with Abu Zubaydah," according to the Pentagon report. When he flew back to the United States in May 2002, Padilla has told interrogators he also had "no intention of carrying out the apartment-building operation," the report states.

"Their reasons for labeling him an enemy combatant keep changing," says Donna Newman, Padilla's lawyer, about the new disclosures in the Pentagon report. The new information about the purposes of Padilla's mission to the United States--apparently derived from interrogations with Khalid Shaikh Mohammed--suggests that the Mobbs declaration may well have been "misleading," she added.

As for the prospect that the Justice Department--in the event of a loss before the Supreme Court--will now bring conventional criminal charges against her client, Newman said she welcomed such a development. "We've always said we want our day in court," she said.