FBI rebuilding terror cases

U.S. is concerned evidence to date might fail in court

October 21, 2007|By Josh Meyer | Josh Meyer,Los Angeles Times

WASHINGTON -- The FBI is quietly reconstructing the cases against Khalid Sheik Mohammed and 14 others accused as al-Qaida leaders being held at Guantanamo Bay, spurred in part by U.S. concerns that years of CIA interrogation have yielded evidence that is inadmissible or too controversial to present at their coming war crimes tribunals, government officials familiar with the probes said.

The process is an embarrassment for the Bush administration, which for years held the men incommunicado overseas and allowed the CIA to extract information from them in coercive ways that would not be admissible in a U.S. court of law - and might not be allowed even in military commissions, some former officials and legal experts said. Even if the information from the CIA interrogations is allowed, they said, it would probably risk focusing the trials on the actions of the agency and not the accused.

The FBI investigations, involving as many as 300 agents and analysts in a so-called "Guantanamo task force," have been under way for as long as two years. They were requested by the Defense Department shortly after legal rulings indicated that Mohammed - the self-proclaimed mastermind of the Sept. 11 attacks - and the other al-Qaida suspects would probably win some form of trial in which evidence would have to be presented, according to senior federal law enforcement officials.

The task force has reviewed intelligence, interviewed the 15 accused as al-Qaida leaders and traveled to several nations to talk to witnesses and gather evidence for use in the tribunals, the federal law enforcement officials said. Like most others interviewed for this article, they spoke on the condition of anonymity, citing the sensitivity of the investigations, which are being coordinated with the Pentagon.

A Pakistan-based U.S. official who has participated in the hunt for al-Qaida leaders since 2001 said he was interviewed by FBI agents four months ago in Washington. They were "very aggressively pursuing KSM and all of the things he's been involved in," he said, referring to Mohammed by his initials.

The FBI is interested especially in Mohammed, who during the more than three years he spent in CIA custody boasted that he had killed Wall Street Journal reporter Daniel Pearl and orchestrated more than two dozen other terrorist plots. Several senior counterterrorism officials said they believed that Mohammed falsely confessed to some things, including the Pearl slaying, under duress or to obscure the roles played by operatives who might still be on the loose.

Mohammed's prosecution is expected to be the centerpiece of the military commissions, which could occur as early as next year. Some U.S. officials familiar with them, however, said the tribunals could be delayed for years by legal challenges.

The FBI's efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the U.S. military detention center at Guantanamo Bay, Cuba, is shut down. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to a third country or have enough evidence gathered by law enforcement officials to charge them with terrorism in U.S. federal courts, some current and former counterterrorism officials and legal experts said.

"I think there's no surprise that they have to call in the FBI to clean up the mess left by the CIA secret detention program," said Jumana Musa, advocacy director for Amnesty International. "They would be smart to use evidence that did not come out of years of secret detentions, interrogations and torture."

Special Agent Richard Kolko, an FBI spokesman, said the investigations were a natural outgrowth of a long-standing interagency effort. "The FBI will support the prosecution of KSM and other high-value detainees by making its investigative and evidentiary expertise available to the prosecution team," he said. He referred all other questions to the Defense Department.

Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said the Defense Department was working closely with its interagency counterparts in "building a case against KSM and scores of other men at Guantanamo alleged to have committed law of war violations - including the attacks of 9/11, USS Cole bombing and East Africa Embassy bombings."

Neither those two men nor CIA spokesman George E. Little would comment on whether the FBI investigations were being conducted to bolster shortcomings in the cases against Mohammed and the others that are, at least in part, the result of CIA interrogations.

FBI officials interviewed for this article emphasized that the bureau's probes should not be viewed as a repudiation of the CIA's efforts, noting that the spy agency's primary responsibility has been to gather intelligence to prevent further attacks, not collect evidence for trial.

But some former and current U.S. officials said concerns about the potential inadmissibility of the CIA interrogations, and the controversy surrounding them, were the primary reasons the FBI agents were sent to gather more evidence, in some cases re-interviewing suspects and witnesses.

Josh Meyer writes for the Los Angeles Times.

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