At Padilla terror trial, a witness's surprise effect

Federal prosecutors had high hopes that Yahya Goba would emerge as a key witness in the trial of suspected Al Qaeda recruit Jose Padilla.

Now they are hoping he doesn't.

When Mr. Goba was arrested in September 2002, he was portrayed as America's worst nightmare. Government officials said he was a member of an Al Qaeda sleeper cell who was recruited for jihad, went to Afghanistan to train in the use of weapons and explosives, and returned to Lackawanna, N.Y., to quietly await further instructions from Osama bin Laden.

It was the same path that prosecutors say was followed by Mr. Padilla. Goba's detailed telling of his story was seen by federal prosecutors as a winning trial strategy, an opportunity to show the jury firsthand how a Muslim-American could wind up in a terrorist training camp run by Al Qaeda.

But the picture of Goba that is emerging from the witness stand at Padilla's trial is less menacing than federal prosecutors had hoped. Rather than boosting the government's case, his testimony appears to be helping Padilla make his.

Goba began his testimony on Friday and is expected to continue on the witness stand Monday morning.

He is appearing at the trial under a plea agreement and is seeking to have the government reduce his 10-year prison sentence. Goba, who is married with a 4-year-old daughter, has a strong additional incentive to cooperate in every way with the government. He wants to avoid being designated an enemy combatant and diverted out of the criminal justice system into indefinite military detention.

Padilla was held and interrogated for three years and eight months in military custody as an enemy combatant before being named in the current criminal case.

The Miami indictment charges that Padilla and his two codefendants formed a terror support cell that provided money, equipment, and recruits to Islamic militants. Padilla is portrayed as a willing recruit.

His lawyers say he is a devout Muslim who traveled to the Middle East to advance his religious study. They deny that he attended a terror training camp in Afghanistan.

Goba as a stand-in for Padilla

The irony of Goba's testimony is that defense attorneys appear to be doing to the prosecution with their own witness what prosecutors set out to do to the defense. They are using Goba as a stand-in for Padilla.

In his opening statement to the jury, Assistant US Attorney Brian Frazier said that Goba would explain "just what kind of training Jose Padilla wanted" at the camp in Afghanistan.

Defense lawyers objected. And US District Judge Marcia Cooke sustained their objection. It was a preview of what was to come.

When the government announced last week that Goba would be the next witness, defense lawyers argued that prosecutors would try to hold Padilla accountable for Goba's conduct by implying to the jury that both were members of a single, massive Islamic conspiracy.

Judge Cooke rejected the government's broad Islamic conspiracy theory, saying there was no evidentiary connection between Goba's cell in Lackawanna and the alleged South Florida cell. The judge limited Goba's testimony to his own personal experiences at the Al Farooq training camp in Afghanistan. He could testify about filling out a "Mujahideen Data Form" identical to the form that the government says Padilla filled out.

But the judge barred prosecutors from showing the jury a 30-second film of Mr. bin Laden visiting the Al Farooq camp while Goba was there. The judge ruled it wasn't relevant to Padilla's case because Padilla is alleged to have attended the camp 10 months earlier.

Cooke's limitations set the stage for a dramatic turnabout.

Testimony has limitations

Instead of Goba discussing the radical, violent, terrorist goals of many of his fellow recruits and their Al Qaeda hosts at Al Farooq, his testimony has been limited to his own experiences and beliefs. He told the jury under questioning by defense lawyers that he never intended to join Al Qaeda, engage in terrorism, or harm anyone.

He attended the training camp because he'd been told by an Islamic preacher that it was a religious duty to prepare for jihad to assist Muslims struggling against oppression in places like Bosnia, Kosovo, and Chechnya.

"Are you now, or have you ever been a terrorist?" Padilla defense lawyer Michael Caruso asked.

"No," Goba answered.

"You felt that it was necessary to do this training so that if called upon, you could help your [Muslim] brothers and sisters facing atrocities all over the world?" Mr. Caruso asked.

"Yes," Goba said.

Defense lawyers asked Goba to explain his beliefs about jihad, or Islamic holy war. He agreed that jihad can represent an inner struggle within a Muslim and that when it takes the form of physical fighting, it is only acceptable in defense of Islam and Muslims.

"So murder is not jihad?" asked William Swor, a lawyer for a Padilla codefendant. "Unfairly injuring someone is not jihad?"

"Yes," Goba answered to both questions.

By the end of the cross-examination, prosecutors knew they were in trouble: When the jury was dismissed for the day, Mr. Frazier asked Cooke to allow him more leeway to explore what Goba was told about Al Qaeda's view of jihad.

"The impression is left that the only reason people go to this camp [in Afghanistan] is peaceful – the inner struggle," Frazier said.

Defense lawyers urged the judge to hold firm to her earlier ruling. "[Frazier's] goal is to get Al Qaeda's credo into this trial through this witness," said Jeanne Baker, a lawyer for another Padilla codefendant.

The episode is significant because it has enabled defense lawyers to introduce some of their core arguments to the jury using an important government witness. It has allowed defense lawyers to paint the case in finer shades of gray rather than the black-and-white approach adopted by the government.

It also highlights the severe constraints faced by federal prosecutors who have attempted to cobble together a criminal case against Padilla without jeopardizing sensitive intelligence sources and methods. There is no shortage of Al Qaeda officials in US custody at Guantánamo Bay, Cuba, with direct knowledge of the purpose of the Al Farooq training camp. But even if they agreed to testify, to transport them into the United States would empower them with certain legal protections and would open a door to permit an investigation of the harsh interrogation tactics allegedly used against them overseas.

Even in its constrained form, Goba's testimony has been important for the government. Under direct questioning from Frazier, Goba said that prior to entering the training camp he filled out a Mujahideen Data Form identical to the form prosecutors say Padilla filled out.

But Padilla allegedly attended the same camp 10 month earlier. Prosecutors acknowledge that they have been unable to locate anyone who was at the training camp with Padilla. "If they exist, we don't know where they are," Frazier told the judge outside the jury's presence.