The others on trial in Padilla case
The terror case against two of Jose Padilla's codefendants hinges on secretly recorded calls.
In 1993, several months after a truck-bomb ripped through the basement of the World Trade Center, the US government began listening to the private conversations of a computer programmer in south Florida and an Islamic newsletter publisher in San Diego.
The FBI suspected that the two men, Adham Hassoun and Kifah Jayyousi, might be affiliated with Muslim terrorists. They wanted to find out before more bombs exploded, so agents tapped their phones, recording everything they said.
Now, 14 years and 300,000 secretly recorded conversations later, federal prosecutors say the men should go to prison for the rest of their lives for allegedly plotting with terrorists to murder and maim people.
Defense lawyers for both men counter with a question: If Mr. Hassoun and Mr. Jayyousi are so dangerous, why did the government wait so long to file charges? Despite the surveillance, Jayyousi went on to work as a senior administrator in the public school systems in Detroit and Washington, D.C.
Hassoun, Jayyousi, and suspected Al Qaeda operative Jose Padilla are on trial in a Miami federal courtroom for allegedly providing money, equipment, and recruits to various Islamic terrorist groups waging violent jihad overseas.
This week, prosecutors are expected to begin presenting to the jury English translations of thousands of hours of intercepted conversations in Arabic. Jurors will hear discussions allegedly related to Bosnia, Chechnya, Kosovo, Somalia, and Lebanon.
Lawyers for Hassoun and Jayyousi say their clients are being targeted for prosecution, not for any violence they planned or carried out, but because they were outspoken members of the Muslim-American community who held political and religious beliefs unpopular in the US.
Prosecutors say they formed a support cell for Islamic terror.
Of the 300,000 recorded calls, prosecutors have selected 123 for possible use as evidence at the trial. Of those, 53 are mentioned in the indictment.
"We will prove that the defendants committed the charged crimes through their own words," Assistant US Attorney Brian Frazier told the jury in his opening statement on May 14.
"You will hear what the defendants said to each other in their private conversations about violent jihad," he said. "Because they were talking to each other, they expressed their true beliefs." Sometimes they spoke in code, the prosecutor told the jury.
In one recorded conversation in October 1996, Hassoun reportedly told a colleague in Egypt to go to the Ogaden region of Ethiopia near Somalia. "Go to the area that I told you about.... Brothers have arrived there … and God willing, you will go, uh … start a company with them … and forget about the worldly brides and the worldly home, OK?"
A few months later in a January telephone conversation, Hassoun allegedly gave an assessment of the situation in the Ethiopia-Somalia border region. "Fifty-eight brothers died.... The attack was repelled [by the brothers], but the Americans used their airplanes … and were bombarding them.... The situation was very harmful to the brothers, but thanks to God, they will be repaid twofold [as religious martyrs]."
According to the indictment, the conversation continued with Hassoun saying: "Whatever we collect, we will be sending over there.... A few [leaders] have called specifically concerning the subject.... [Leaders] of certain war fronts ask for such."
That same day in January 1997, Hassoun spoke to a different colleague using what prosecutors say was a code: "Because they are playing football in Somalia … it's heating up a lot, so we're sending … uh … uniforms … and … uh … sneakers for football over there."
Hassoun's reference to American forces raises questions. US military intervention in Somalia ended in 1994, and United Nations peacekeeping forces pulled out in March 1995. The Ethiopian Defense Ministry announced details of a December 1996 battle, but there was no indication that US forces were supporting Ethiopian troops.
Of the 123 transcribed conversations, federal agents say 79 involve Hassoun. Mr. Padilla's voice can be heard in only seven intercepted conversations. In one, recorded in July 1999, Padilla reportedly requests "an army jacket, a book bag, and a sleeping bag" because there "was a rumor here that the door was open somewhere."
Prosecutors say this is evidence of Padilla's desire to obtain terrorist training from Al Qaeda. His lawyers say Padilla was a recent Muslim convert who wanted to become an Islamic preacher and was seeking out scholars for instruction.
Defense lawyers for all three men say that many of the statements in the government's transcripts are vague and misleading. Of the 300,000 intercepted communications, they say, Arabic translators working for the FBI prepared summaries of only 14,000 calls. Rather than assembling a fair and comprehensive picture of their clients, government translators and agents "cherry-picked" conversations that present their clients in the worst possible light, they say.
It was up to the translators to decide which conversations might interest the FBI case agents. Defense lawyers say the translators were searching for incriminating evidence and ignoring exculpatory evidence. Some 285,000 conversations remain untranslated and effectively off limits to defense lawyers in FBI vaults, the lawyers say.
The electronic surveillance was originally undertaken to gather intelligence information about suspected terrorists rather than to prosecute a criminal case for alleged material support of terrorists. So the usual safeguards required for collection of potential evidence during a criminal investigation did not apply as the surveillance tapes were being produced and monitored, defense lawyers say.
In testimony last week, FBI translator Majed Sam acknowledged that it was up to him to decide which conversations to translate. But he said he pursued no FBI agenda. "My goal is to translate everything in as accurate English as I can," he told the jury.
During cross-examination, Jayyousi defense lawyer Marshall Dore Louis asked Mr. Sam whether he was familiar with the American term "to cherry-pick."
"It means selecting what you want to select," Mr. Louis said.
"Yes," Sam agreed.
At the conclusion of his cross-examination, Louis returned to that theme. He asked if Sam was familiar with other American terms: paint with a broad brush, stereotype, prejudice, bigotry.
Sam answered that he was familiar with each term.
The move appeared to be an effort to encourage the jury – made up of three African-Americans, four whites, and five Latinos – to closely scrutinize whether the government was using stereotypes and prejudice against Muslims to try to win convictions.
Later when the jury was excused for the day, Assistant US Attorney Russell Killinger complained to the judge about Louis's questions. "They were totally improper and uncalled for," he told US District Judge Marcia Cooke.
"I was a little surprised myself," the judge said.
Louis said he didn't mean to imply the translator was himself bigoted. His questions were intended to highlight the way the government is presenting its case.
"That's [an] argument" that can be presented later in the trial, the judge told Louis. "This witness didn't deserve those kinds of questions," she said.
Jeanne Baker, a lawyer for Hassoun, disagreed. "There is a right we have to advance our themes," she said.
Judge Cooke said the questions crossed the line into impermissible argument. "Everyone is on notice," she said.
The trial is expected to continue on Tuesday with more testimony from FBI translators.