Amid tight security, alleged al-Qaida operative Jose Padilla is being permitted to personally view U.S. government secrets in advance of his trial on charges of conspiring to wage and support international terrorism.
Under a federal judge's order, Padilla is being allowed to examine classified documents and videotapes detailing his statements during 3 1/2 years in Defense Department custody as an unlawful "enemy combatant." That designation was dropped last fall when he was charged in a Miami terrorism case.
Defense lawyers in terrorism cases are regularly permitted to examine such classified material if they obtain government security clearances, but it is unusual for an actual terror suspect to be given direct access to secrets.
"There is not a long history of this. There have not been a lot of terrorist prosecutions in civilian courts," said Aitan Goelman, a former Justice Department terrorism prosecutor now in private practice in Washington.
Padilla is a U.S. citizen once accused by the Bush administration of plotting to detonate a radioactive "dirty bomb."
Videos of interrogations
U.S. District Judge Marcia Cooke's order, issued July 5, allows Padilla to view 32 Defense Department documents that summarize statements Padilla made during his years in military custody. He also can examine 57 videotapes of interrogations he underwent during that same period.
Padilla's attorneys said in court papers that they must examine the materials with their client to discover whether he was mistreated by interrogators, to refresh his memory and find possible leads for their defense, and to ensure that prosecutors have turned over all necessary material.
The attorneys and a spokesman for the U.S. attorney's office in Miami declined to comment Thursday on the arrangement. It was unclear whether Padilla had already begun examining the documents.
Security will be extraordinarily tight for the sessions. Padilla will be brought to a secure inner area in the court complex but the door must remain open so a U.S. marshal can keep constant watch.
Cooke's order said the marshal must maintain "an appropriate distance" to prevent overhearing defense trial strategy. But if the marshal does overhear, "those communications shall not be communicated to any member of the government prosecution team," the judge said.
The challenge in national security cases is in striking a balance between a defendant's right to prepare an adequate defense and the government's interest in protecting its secrets, particularly sources and methods used to obtain intelligence.
"I think the government, in an abundance of caution these days, is protecting as much as it can," said Carl Tobias, law professor at the University of Richmond. "There is a tension between his constitutional rights to defend himself and see the evidence against him on the one hand and national security on the other hand."
Arrested in 2002
Padilla and two co-defendants are scheduled to go to trial in September on charges of conspiracy and providing material support to Islamic extremist groups around the country. All three have pleaded not guilty.
Padilla, a former Chicago gang member and south Florida resident, was arrested in 2002 at O'Hare Airport. Authorities claimed then he had plotted to set off a "dirty bomb" as an al-Qaida soldier, but the Miami indictment does not mention that.
A co-defendant, Kifah Wael Jayyousi, had sought dismissal of the charges against him on grounds that they were based on his newsletter, the Islam Report, which he contended deserved free speech protections.
But a federal magistrate ruled Monday that the charges also involved terror fundraising and recruitment, and said the indictment should stand.