URL http://query.nytimes.com/gst/fullpage.html?res=9506E7D61730F937A35752C0A9619C8B63

DATE/ AUTHOR None	AUTHORS: Deborah Sontag

H In Padilla Wiretaps, Murky View of ‘Jihad’ Case

S1 In 1997, as the government listened in on their phone call, Adham Hassoun, a computer programmer in Broward County, Fla., proposed a road trip to Jose Padilla, a low-wage worker there.
S2 The excursion to Tampa would be his treat, Mr. Hassoun said, and a chance to meet ''some nice, uh, brothers.''

S3 Mr. Padilla, 36, a Brooklyn-born Puerto Rican who had converted to Islam a few years earlier, knew Mr. Hassoun, an outspoken Palestinian, from his mosque.
S4 Still, according to a transcript of the conversation obtained by The New York Times, Mr. Padilla equivocated as Mr. Hassoun exhorted.

S5 ''We take the whole family and have a blast,'' Mr. Hassoun said.
S6 ''We go to, uh, our Busch Gardens, you know  You won't regret it.
S7 Money-back guarantee.''

S8 Mr. Padilla, laughing, suggested that they not discuss the matter over the phone.

S9 ''Why?''
S10 Mr. Hassoun said.
S11 ''We're going to Busch Gardens.
S12 What's the big deal!''

S13 That conversation took place five years before Mr. Padilla, a United States citizen accused of plotting a ''dirty bomb'' attack against this country, was declared an enemy combatant.
S14 Given that Mr. Padilla and Mr. Hassoun are now criminal defendants in a terrorism conspiracy case in Miami, it sounds suspicious, as if Mr. Hassoun were proposing something more sinister than a weekend at the amusement park.
S15 He well may have been -- but maybe, too, he was sincere or joking about a Muslim retreat.

S16 Deciphering such chatter in order to construct a convincing narrative of conspiracy is a challenge.
S17 Yet, prosecutors say, the government will rely largely on wiretapped conversations when it puts Mr. Padilla, Mr. Hassoun, and a third defendant, Kifah Jayyousi, on trial as a ''North American support cell'' that sent money, goods and recruits abroad to assist ''global jihad.''

S18 Tens of thousands of conversations were recorded.
S19 Some 230 phone calls form the core of the government's case, including 21 that make reference to Mr. Padilla, prosecutors said.
S20 But Mr. Padilla's voice is heard on only seven calls.
S21 And on those seven, which The Times obtained from a participant in the case, Mr. Padilla does not discuss violent plots.

S22 But this is not the version of Mr. Padilla -- Al Qaeda associate and would-be bomber -- that John Ashcroft, then the attorney general, unveiled in 2002 when he interrupted a trip to Moscow to trumpet Mr. Padilla's capture.
S23 In the four and a half years since then, as the government tested the limits of its power to deal with terrorism outside the traditional law enforcement system, Mr. Padilla is the only accused terrorist to have gone from enemy combatant to criminal defendant.

S24 His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Mr. Padilla without formal charges for three and a half years.
S25 Those claims came from the government's overseas interrogations of terrorism suspects, like Abu Zubaydah, which, the government said, Mr. Padilla corroborated, in part, during his own questioning in a military brig in South Carolina.

S26 But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al Qaeda's dirty bomber to foot soldier in a somewhat nebulous conspiracy.

S27 The initial dirty bomb accusation did not disappear.
S28 It quietly resurfaced in Guantánamo Bay, Cuba.
S29 The government filed the dirty bomb charges against Mr. Padilla's supposed accomplice, an Ethiopian-born detainee, at about the same time it indicted Mr. Padilla on relatively lesser offenses in criminal court.

S30 A Change in Strategy

S31 The change in Mr. Padilla's status, from enemy combatant to criminal defendant, was abrupt.
S32 It came late in 2005 as the Supreme Court was weighing whether to take up the legality of his military detention and the Bush administration, by filing criminal charges, pre-empted its review.
S33 In a way, Mr. Padilla's prosecution was a legal maneuver that kept the issue of his detention without charges out of the Supreme Court.
S34 After apprehending him at O'Hare International Airport in Chicago in May 2002, the Bush administration made a choice: to detain Mr. Padilla militarily, in order to thwart further plotting, rather than to follow him in order to gather evidence that might serve a criminal prosecution.

S35 Now that Mr. Padilla has ended up a criminal defendant after all, the prosecution's case does not fully reflect the Bush administration's view of who he is or what he did.

S36 Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002.

S37 But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel -- whether or not he was mistreated, as his lawyers claim -- would not be admissible in court.

S38 And it is unlikely that information obtained during the harsh questioning of Al Qaeda detainees would be admissible, either -- and, further, the government is disinclined to expose sensitive intelligence or invite further scrutiny of secret jails overseas.

S39 Probably as a consequence, the current criminal case zeroes in on what the government sees as an earlier stage of Mr. Padilla's involvement with terrorism.
S40 It focuses primarily on the other defendants' support during the 1990s for Muslim struggles overseas, especially in Bosnia, Kosovo and Chechnya.
S41 Mr. Padilla, who was appended to their pre-existing case, in which he had been an unnamed co-conspirator, is depicted as their recruit.

S42 Although prosecutors have declined to discuss the government's strategy, their filings and statements in court provide a picture of the case they are expected to present at trial.

S43 The most tangible allegation against Mr. Padilla is that in 2000 he filled out, under an alias, an Arab-language application to attend a terrorist training camp.
S44 That application is expected to be offered into evidence alongside the wiretapped conversations, but Mr. Padilla's lawyers say they will contest its admissibility, challenging the government's assertion that the ''mujahideen data form'' belonged to their client.

S45 Robert Chesney, a specialist in national security law at Wake Forest University, called the prosecution a pragmatic one, analogous to ''going after Al Capone on tax evasion.''

S46 But Deborah Pearlstein, a lawyer with Human Rights First who has consulted with Mr. Padilla's defense, said that his will never be an ordinary, pragmatic prosecution.
S47 ''If Jose Padilla were from Day 1 just charged and tried, then maybe,'' she said.
S48 ''But this is a case that comes after three and a half years of the most gross deprivation of human rights that we've seen in this country for a long time.''

S49 Further, Ms. Pearlstein noted, the government has reserved the option, should the prosecution fail, of returning Mr. Padilla to the military brig.
S50 This, she said, ''casts a shadow'' over the current prosecution.

S51 The Bush administration's military case against Binyam Mohamed, 28, the Ethiopian detainee at Guantánamo, put the current proceedings in a different light, too.

S52 In December 2005, Mr. Mohamed was referred to the military commission in Guantánamo on accusations that he conspired with Mr. Padilla on the dirty bomb plot.
S53 It was little noticed at the time.

S54 But accusations against Mr. Padilla that are nowhere to be found in the indictment against him filled the pages of Mr. Mohamed's charging sheet, with Mr. Padilla repeatedly identified by name.
S55 The sheet referred to the two men meeting in Pakistan after Sept. 11, 2001, studying how to build an improvised dirty bomb, discussing the feasibility of a dirty bomb attack with Al Qaeda officials and agreeing to undertake the mission to blow up buildings.

S56 Mr. Mohamed's lawyer, Clive Stafford Smith, said that these charges were based on a forced confession by Mr. Mohamed, who, he said, was tortured overseas into admitting to a story that was fed to him.
S57 ''Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khaled Sheikh Mohammed,'' Mr. Stafford Smith said, adding that his client ''has no conscience knowledge that he ever met'' Mr. Padilla.

S58 The charges against Mr. Mohamed and other Guantánamo detainees who were headed for prosecution there have been suspended temporarily as a result of the Military Commissions Act passed by Congress in October.
S59 Those charges are likely to be reinstated, a Pentagon official said yesterday.

S60 That Mr. Mohamed faced dirty bomb charges and Mr. Padilla does not speaks to the central difference between being a terrorism suspect in Guantánamo and a criminal defendant charged with terrorism offenses in the United States.

S61 In Guantánamo, the military commission system that deals with foreign-born terrorism suspects is expected to allow, with some exceptions, the use of information obtained through coercion.

S62 ''Federal court rules are restrictive,'' Professor Chesney of Wake Forest University School of Law said.
S63 ''The very essence of why they're trying to have that separate military system was to create rules to use information that is deemed by the intelligence community to be trustworthy but wouldn't make it under the federal rules of evidence.''

S64 David Cole, a professor of law at Georgetown University and author of books on terrorism and civil liberties, sees the difference between the two systems more critically: ''What this says clearly is that they feel that they can get away with using tainted evidence in the military commission system that they can't use in the criminal court system.''

S65 The Wiretapping Case

S66 The criminal case against Mr. Padilla has its roots in the prosecution of Sheikh Omer Abdel Rahman, the blind Egyptian cleric who was convicted in 1995 of conspiring to blow up the United Nations and other New York landmarks.

S67 In the early 1990s, Sheikh Rahman's telephone was tapped, and Mr. Hassoun and Dr. Jayyousi, a Jordanian-born American citizen who holds a doctorate in civil engineering, came to the government's attention through phone calls to or from his line.
S68 Then the government, under the Foreign Intelligence Surveillance Act, began to eavesdrop on them, which eventually pulled Mr. Padilla into their net, too.

S69 The government presents the three defendants as ''joined at the hip,'' as one prosecutor put it in a hearing last summer.
S70 But Judge Marcia G. Cooke of Federal District Court, noting that Mr. Padilla was appended to a case well under way, asked the government, ''If they are so joined at the hip, why is Mr. Padilla so late to the dance?''

S71 Dr. Jayyousi, a former school system administrator in both Detroit and Washington, D.C., never met Mr. Padilla, his lawyer, William Swor, said.

S72 It is Mr. Hassoun, the government said, who recruited Mr. Padilla.
S73 But both Mr. Hassoun's and Mr. Padilla's lawyers deny that Mr. Padilla was recruited.

S74 Seven Taped Phone Calls

S75 Mr. Padilla's lawyers and relatives say that he left South Florida for Egypt in September 1998 on a spiritual journey.
S76 A former juvenile offender, he converted to Islam as part of an effort to straighten out his life, they say.
S77 His mosque in Fort Lauderdale sponsored his travel, he told friends, relatives and F.B.I.
S78 agents who interviewed him in 2002.
S79 Mr. Hassoun belonged to that mosque, and the telephone transcripts seem to indicate that Mr. Hassoun helped, at the least, with Mr. Padilla's travel plans.

S80 The seven taped phone calls that bear Mr. Padilla's voice involve conversations with Mr. Hassoun from 1997 to 2000.

S81 On those calls, Mr. Padilla, unlike some of the other defendants, does not employ what the government says is coded language.
S82 According to the government, other defendants refer to their jihad-related plans as ''getting some fresh air,'' ''participating in tourism,'' ''opening up a market,'' ''playing football,'' and so on.
S83 This leads to silly-sounding exchanges where ''the brothers'' discuss going on ''picnics'' in order ''to smell fresh air and to eat cheese'' or using $3,500 to buy ''zucchini.''

S84 In contrast, Mr. Padilla's seven conversations with Mr. Hassoun range from straightforward -- Mr. Hassoun tells Mr. Padilla that his grandmother has died; Mr. Padilla tells Mr. Hassoun that he has found himself an 18-year-old Egyptian bride who is willing to wear a veil -- to vaguely suggestive or just odd.

S85 In one phone call, the two men talked about a dream.
S86 It appeared to be the dream that Mr. Padilla, according to his relatives, cites as having played a crucial role in inspiring him to convert to Islam: the vision of a man in a turban, surrounded by the swirling dust of a desert.

S87 Mr. Hassoun brought it up and told Mr. Padilla that he himself had experienced the same vision.
S88 ''What do you mean you saw the same dream?''
S89 Mr. Padilla asked.

S90 ''I saw the dream of the uh  person with the turban,'' Mr. Hassoun said.

S91 Mr. Hassoun explained how, in his dream, the turban was wrongly wrapped and so he thought the man might be a spy, in which case, he was prepared ''to split his body apart.''
S92 But then, he said, he understood that ''the brother  was a good one.''

S93 ''Yeah?''
S94 Mr. Padilla said.

S95 In three of the seven conversations, Mr. Padilla made statements that the government has identified as ''overt acts'' in furtherance of the accused conspiracy.

S96 In the first, Mr. Hassoun asked, ''You're ready, right?''
S97 and Mr. Padilla said, ''God willing, brother, it's going to happen soon.''
S98 That was the summer of 1997, a year before Mr. Padilla left South Florida for Egypt.

S99 In the second, Mr. Padilla told Mr. Hassoun, during a 1999 conversation from Egypt, that he had asked his ex-wife in the United States to arrange for him to receive an army jacket, a book bag and a sleeping bag, supplies that he had requested because ''there was a rumor here that the door was open somewhere.''
S100 In the third, Mr. Padilla told Mr. Hassoun in April 2000, that he would need a recommendation to ''connect me with the good brothers, with the right faith'' if he were to travel to Yemen.

S101 Prosecutors say Mr. Padilla is mentioned, although by his Muslim name Ibrahim or by another alias, on 21 additional tapes.
S102 One of them refers to Ibrahim as being ''in the area of Usama,'' which the government takes to mean that he was near Osama bin Laden.
S103 But Mr. Padilla's lawyers contest that interpretation.

S104 ''That is just nonsensical, Your Honor, that these men who for years, according to the government, have been talking in code all of a sudden are going to throw Osama bin Laden's name around,'' Michael Caruso, a federal public defender, said in court.

S105 Mr. Padilla has pleaded not guilty.
S106 But before his case goes before a jury, his fitness to stand trial will be evaluated.
S107 On the basis of Mr. Padilla's lawyers' assertion that he is mentally damaged as a result of his prolonged isolation and his interrogation in the brig, Judge Cooke has ordered a psychiatric evaluation by a Bureau of Prisons doctor to be completed this week.

S108 Friday in The Times: The only person on the American mainland still held asan enemy combatant.

S109 Correction:  January 5, 2007, Friday  A front-page article yesterday about wiretapped conversations in the case against Jose Padilla, who is accused of plotting a ''dirty bomb'' attack, omitted two lines at the continuation in some copies.
S110 The sentence should have read: ''In the four and a half years since then, as the government tested the limits of its power to deal with terrorism outside the traditional law enforcement system, Mr. Padilla is the only accused terrorist to have gone from enemy combatant to criminal defendant.''

