During an interview on MSNBC Thursday morning, White House Press Secretary Robert Gibbs defended the Obama administration’s handling of Christmas Day bomber Umar Farouk Abdulmutallab. Gibbs argued that the administration was right to treat Abdulmutallab as a criminal defendant, instead of as an enemy combatant. “Just because you make somebody an enemy combatant [it] doesn’t make them talk,” Gibbs argued. He then pointed to an example from the Bush years to supposedly support his point.
“Jose Padilla was made an enemy combatant so that we could get him to talk,” Gibbs said. “And guess what happened when we made him an enemy combatant, he didn't talk. He did talk when he was transferred back into a civilian court.”
President Obama’s top counterterrorism adviser, John Brennan, made the same point on Tuesday in an op-ed for USA Today. Brennan argued: “Terrorists such as Jose Padilla and Saleh al-Mari did not cooperate when transferred to military custody, which can harden one's determination to resist cooperation.”
Brennan and Gibbs are wrong. In fact, Jose Padilla only started cooperating once he was transferred into the military’s custody and interrogated.
Jose Padilla was arrested at Chicago’s O’Hare International Airport on May 8, 2002. At the time, U.S. authorities had multiple reasons to be suspicious of him. Most importantly, senior al Qaeda operative Abu Zubaydah had been taken into custody in late March 2002 and provided information to authorities that led to the identification of both Padilla and his would-be accomplice, Binyam Mohamed. The two were identified as al Qaeda recruits who had been tasked with a mission inside the U.S.--namely, an attack on a high-rise apartment building.
Thus, when Padilla was initially detained by the FBI in May 2002 authorities knew he was up to no good. The FBI questioned Padilla for several hours but got nowhere. A copy of the FBI’s 302 memo written after the initial questioning of Padilla shows that al Qaeda’s man gave the bureau nothing. Padilla talked about his personal history but said nothing about his real intentions or his nefarious friends.
FBI agent Russell Fincher has testified that the Bureau initially sought Padilla’s cooperation in stopping an impending al Qaeda attack. “I believed there was a terrorist act that was going to happen. I believed he had knowledge of that. I needed his help,” Fincher explained. “I didn't want to arrest him.”
The FBI even offered to put Padilla up in a hotel so they could continue their conversation. But when the agents tried to turn the conversation towards Padilla’s al Qaeda ties, he shut down the interview. “He stood up and told me the interview was over and it was time for him to go,” Fincher recalled during testimony.
Padilla was then read a Miranda warning, arrested on a material witness warrant and transferred to the Metropolitan Correctional Center (MCC) in New York.
There he stayed for one month without giving up anything of importance to the FBI. During that time, as Bill Burck (former deputy counsel to President Bush) and Dana Perino (former press secretary to President Bush) explain at National Review Online, the Bush administration weighed its options, ultimately deciding to designate Padilla an enemy combatant. After Padilla was transferred to the brig on June 9, 2002, the leading newspapers noted the chief reason for the move: Padilla wasn’t cooperating with authorities.
“Officials said Padilla has refused to cooperate since his arrest,” the Los Angeles Times reported. The New York Times elaborated: “Officials have justified his detention [in military custody] by saying he is considered to be an enemy combatant. He has refused to cooperate with the authorities who have questioned him.”
And the Washington Post gave this summary on June 12:
[Padilla]'s unwillingness to cooperate with authorities was the primary factor in his transfer to military custody, the officials said. One official said [Padilla] repeatedly resisted the efforts of FBI agents and representatives of the U.S. attorney's office to interview him, both through his lawyer and at least once in a face-to-face meeting inside the MCC.
Padilla would ultimately talk. But, contrary to Gibbs and Brennan, it wasn’t until he was placed in the military’s custody--not when he was returned to the civilian court system.
On June 1, 2004, the Defense Department released a memo summarizing what was known about Padilla both before and after he was transferred into the military’s custody. The second page of the memo contains two paragraphs concerning what authorities had learned about Padilla up until June 9, 2002, the day he was transferred into the military’s custody. As the aforementioned press accounts make clear, authorities had garnered no information from Padilla himself. The DoD cited “intelligence information” and “our information” but no admissions by Padilla. Nearly all of the information on Padilla up until that point came from other al Qaeda detainees and sources.
The memo then reads: “Since that time [June 9, 2002], additional and more detailed intelligence information about Jose Padilla has been developed and made available in unclassified form.”
That additional information includes several pages of unclassified intelligence, including a number of admissions by Padilla, which were corroborated by other detainees.
Here are just some of the admissions Padilla made while in military custody:
Padilla has admitted that he attended the al Qaeda-affiliated al Farouq training camp in Afghanistan in September-October 2000 under the name Abdullah Al-Espani. …
Padilla also admits that he first met al Qaeda military commander Abu Hafs al-Masri, aka Mohammed Atef (“Atef”), in Afghanistan when Atef approached him in the al Farouq camp and asked him about his commitment to Islam. Padilla believes this high-ranking al Qaeda member began the process of evaluating his commitment and suitability for al Qaeda operations. …
Padilla made his second trip to Afghanistan approximately two months later, entering Pakistan on June 11, 2001. …Padilla admits he was first tasked with an operation to blow up apartment buildings in the United States with natural gas by Atef about one month later, at a meeting in Qandahar in July or August 2001. Padilla accepted the tasking. …
Padilla admits he stayed at a number of safe houses in and around Qandahar with Atef in September 2001 and after the September 2001 attacks on the United States, including the safe house at which Atef was killed by U.S. military bombing in mid-November 2001. [footnote omitted] Padilla, who was with the Explosives Expert at his safe house when Atef’s safe house was bombed, admits he returned to help dig Atef’s body out of the rubble. …
According to Padilla, he first met KSM in Karachi, Pakistan after Abu Zubaydah sent Padilla and his Accomplice [Weekly Standard’s Note: The accomplice is Binyam Mohamed] there in March 2002 to present the nuclear/dirty bomb operation. After being taken to a safe house by Ammar al-Baluchi, Padilla presented the idea to KSM, who advised that the idea was a little too complicated and that he wanted Padilla to resurrect the apartment building operation originally discussed with Atef. KSM wanted Padilla to hit targets in New York City, although Florida and Washington, D.C. were discussed as well. Padilla had discretion in the selection of the apartments. Padilla now admits that he accepted the mission. …
Again, these are just some of the admissions that Padilla made while in the military’s custody. There are more unclassified admissions as well as undoubtedly some that still remain classified.
During his initial interview with the FBI, Padilla wouldn’t even admit that he traveled into Afghanistan. Once in the military’s custody, Padilla admitted that he conspired with some of the most senior al Qaeda operatives of all-time to attack the American homeland after 9/11 from Afghan and Pakistani soil.
Now, of course, Padilla’s admissions were not admissible in a court of law. As Andy McCarthy points out, Padilla was convicted on lesser charges that had nothing to do with his plotting against residential high-rise apartments inside the U.S. But the Bush administration determined that it would have been difficult to prosecute Padilla any way. As the Washington Post reported on June 11, 2002, there were real concerns about the admissibility of the evidence that had then been amassed against Padilla. Some of it came from interrogations outside of the criminal justice system. This evidence included sensitive intelligence from al Qaeda masters that our intelligence professionals needed to do their job, and there was a real risk that it could have been exposed in the court system.
Moreover, as Burck and Perino explain, “The only way to get [Padilla] to talk as a criminal defendant would have been to cut him a plea deal for a lower sentence, and he would have had the right to stop talking any time he wished.” Given that Padilla had already proven to be so uncooperative, he probably would stopped talking pretty quickly--if he ever decided to start talking in the first place.
Here we reach the critical distinction between collecting evidence for a prosecution and collecting intelligence for fighting a war. We know that Padilla was here in May 2002 to carry out al Qaeda’s bidding. Padilla and multiple other al Qaeda detainees have confirmed Padilla’s role. But while Padilla was in the FBI’s custody for one month, we did not learn anything at all about Padilla’s plotting from the terrorist himself. Authorities did not complete the puzzle until he was interrogated in the military’s custody.
The Obama administration has noted this week that not every situation is identical, and each case requires independent evaluation. That’s true--sometimes the FBI does get terrorists to talk. But administration officials can’t make up their own version of Padilla’s story while ignoring all of the facts that are in opposition to it. And the administration certainly should not be citing Jose Padilla’s interrogations as a justification for how they handled Umar Farouk Abdulmutallab.
If anything, Jose Padilla's case shows why the Obama administration’s approach can be woefully inadequate.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.