Why the Charges Against Padilla Changed

On November 22, I wrote:

The charges are really what the prosecutors think may be the strongest case and what they can prove in court without revealing intelligence sources.

Well, I was right. Prosecutors didn't want to allow testimony from two senior members of Al Qaeda who had been subjected to harsh questioning, current and former government officials said Wednesday.

But they were not mentioned in his criminal indictment on lesser charges of support to terrorism that were made public on Tuesday. The decision not to charge him criminally in connection with the more far-ranging bomb plots was prompted by the conclusion that Mr. [Khalid Sheik] Mohammed and Mr. [Abu] Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said.

Padilla was instead charged as a foot soldier in al Qaeda rather than being more involved in the planning and operational development of attacks on the United States.

Claiming that the defendant or witnesses were tortured into making assertions and statements will be one of the preferred defenses used by terrorists brought into the criminal justice system. Why? Because it may be quite effective, although we saw that it didn't work in the Abu Ali trial and conviction.

Now, does this mean that some of the individuals questioned were not coerced or treated harshly? No.

Does this mean that they were definitely tortured? No.

Does it open up the possibility that they might have been tortured? Yes. And the repercussions of the possibility of torture can undermine a legal case, even though the intelligence value of the information obtained may have thwarted terrorist attacks and disrupted terrorist activities.