Pentagon blocks use of witnesses in Ujaama case

The Seattle Times ^ | 16 January 2002 | Mike Carter & Ray Rivera

[Stultis]

Pentagon blocks use of witnesses in Ujaama case

By Mike Carter and Ray Rivera
Seattle Times staff reporters

As federal prosecutors in Seattle prepare their case against American terrorism suspect James Ujaama, their access to three key witnesses is being denied — by other federal officials.

The Justice Department and the Pentagon are in a tense standoff over the use of so-called "enemy combatants" who are in the custody of the Department of Defense at bases in Cuba, Afghanistan and Pakistan.

Prosecutors want to be able to use some detainees as witnesses in terror-related criminal cases filed in U.S. courts — including the cases against Ujaama, the former Seattle man charged with conspiring to support al-Qaida terrorists, and Zacarias Moussaoui, the French citizen suspected as the "20th hijacker" in the Sept. 11, 2001, attacks and the only man charged in the U.S. in connection with that terrorism.

But military officials are refusing to give the federal attorneys access to the detainees.

The U.S. Attorney's Office in Seattle asserts that the impasse is jeopardizing Ujaama's prosecution. The former Ingraham High School student is charged with attempting to set up an al-Qaida terrorist-training camp in Oregon in 1999.

Ujaama is suspected of working closely with a radical Islamic cleric, Abu Hamza al-Masri, in London. Abu Hamza is the target of an ongoing grand-jury investigation in Seattle, and his arrest is a high priority for the Justice Department.

In a hearing last month, recorded in a transcript obtained by The Seattle Times before it was sealed, prosecutors described the interagency quarrel to U.S. District Judge Barbara Rothstein:

"This is a unique situation in the sense that you have two separate parts of the government, one of which has access to people that may be witnesses, and they don't let the other branch of government have that access," Assistant U.S. Attorney Andrew Hamilton said in the Dec. 16 hearing.

"I want the court to know that we are very much unhappy with the system that's been handed to us," Hamilton told the judge. "But I don't know what to say, because there's a tense negotiation going on. It's very frustrating for us."

The three men prosecutors want to talk to in the Ujaama case are two captured Taliban fighters being held at Guantánamo Bay, Cuba, and former Taliban foreign minister Mullah Wakil Ahmed Muttawakil, believed to be in U.S. custody in Afghanistan.

Ujaama is suspected of providing laptop computers to the Taliban, including one to Muttawakil. When Ujaama was indicted last August, Hamilton said, the expectation was that prosecutors and Ujaama's defense attorneys would travel to Guantánamo Bay to depose the witnesses.

Now, Hamilton told Rothstein, "I'm told that will never happen. Either these witnesses will be here, or they're not."

Law-enforcement sources say one of the detainees in Cuba, British citizen Feroz Abbasi, is particularly important to the government's case against Ujaama and the investigation of Abu Hamza.

Abbasi, who reportedly met Ujaama at Abu Hamza's London mosque in the spring of 2000, was captured in fighting outside Osama bin Laden's headquarters in Afghanistan in December 2001. He was taken to Guantánamo Bay, where he was interrogated by the CIA and FBI.

Sources say he provided key links between Ujaama and Abu Hamza and the plans to open a terrorist-training camp in Bly, Ore.

Ujaama's defense attorneys have asked whether they will be given access to statements made by the detainees since their imprisonment. That material must be given to them by the government if the witnesses are to be used at trial.

In last month's hearing, prosecutor Hamilton told the judge that at this point, he is barred from giving the defense anything. The Pentagon's restrictions are so tight that "we don't even have the authority to release their names," he said.

Lt. Cmdr. Barbara Burfeind would say only that the Pentagon is "undergoing a very detailed, painstaking process" of attempting to balance the needs of the intelligence and defense communities with prosecutors' priorities.

"This is new territory," she said. "Things are changing every day."

While the specifics of the Pentagon's position remain secret, legal experts believe there is reluctance to give the foreign detainees access to legal protections provided in the U.S. justice system.

None of the roughly 625 detainees in Guantánamo Bay are U.S. citizens, and the government has indicated that it intends to try some of them in military tribunals, which can be held in secret and where legal protections are significantly curtailed.

"Once you open that door at all, you open it pretty wide," said Scott Silliman, an expert on military law and the executive director of the Center on Law, Ethics and National Security at the Duke University Law School in Durham, N.C. "The Defense Department wants to shield Guantánamo from the judicial process, which, so far, it's been able to do."

Eugene R. Fidell, president of the National Institute of Military Justice, speculated that the Pentagon might be reluctant to "break the spell of interrogation," by allowing access to detainees, even for short periods of time.

"My assumption is any perturbation of the detention regime is a weakening of the detention regime," Fidell said. "Any suggestion that a detainee might have some bargaining chip that he can spend or not spend is a bit of leverage the government would rather the detainee not have."

Judge Rothstein expressed concern over the situation, but has stopped short of putting prosecutors under a deadline to produce the witnesses or not use them at trial. She indicated, however, that she would be reluctant to put off Ujaama's scheduled June trial date while the agencies fight it out.

Rothstein said she might set a deadline by the end of next month, however, if there isn't a solution.

"It would be a bad thing to keep (Ujaama) in custody for a year while the two agencies try to figure out what they're going to do. They have to figure it out," she said. "There are going to be other people that are U.S. citizens that are getting in this situation. I think we can all know that."

Ujaama's defense attorney, Peter Offenbecher, would not comment on the situation.

The New York Times reported recently that a similar conflict between Justice and Defense has prompted the government to consider dropping criminal charges against Moussaoui and to instead try him in a secret military tribunal.

Gerald Zerkin, one of the lawyers aiding in Moussaoui's defense, would not confirm the report but said it is clear the Pentagon does not want to risk providing detainees with the legal rights of U.S. citizens.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com.

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Military tribunals.