A Slap in the Face

President Bush's top counterterrorism adviser flew to Yemen last week to praise that country's cooperation in the war on terrorism just days before Yemeni authorities reportedly pardoned and released one of the principal architects of the October 2000 bombing of the USS Cole.

The apparent release of confessed Al Qaeda operative Jamal al-Badawi, who has been indicted in New York on 50 terrorism counts, was a personal embarrassment  to senior White House aide Frances Fragos Townsend.

Since last week, Yemeni authorities have insisted that Badawi is back in "custody," but U.S. officials remain deeply skeptical about the current status of a fanatic follower of Osama bin Laden whom they hold directly responsible for the deaths of 17 U.S. sailors aboard the Cole.

Just last Wednesday, Badawi—who in 2004 was convicted by a Yemeni court and received the death penalty—was reportedly receiving well-wishers at his home in Aden after pledging his loyalty to Yemeni President Ali Abdullah Saleh. Yet two days earlier, on Oct. 24, Townsend had met with Saleh in the country's capital of Sana to personally hand-deliver a letter from President Bush affirming U.S. support for his government's assistance in the War on Terror. BUSH PRAISES YEMEN'S ROLE IN COMBATING TERRORISM read the headline in the English-language Yemen Times last week announcing Towsend's meeting with Saleh.

Townsend, who serves as Bush's chief assistant for homeland security and counterterrorism, was furious to learn of Badawi's release and has taken the lead role in communicating the U.S. government displeasure with the handling of the Al Qaeda figure, according to a senior administration official who asked not to be identified because of diplomatic sensitivities.

Compounding the insult, U.S. officials say they have strong reason to believe a number of other Al Qaeda figures have been released by the Yemenis, including Jaber Elbaneh, an FBI fugitive who was indicted for providing material support to Al Qaeda as part of the investigation into a terror cell in Lackawana, N.Y., in 2003.

In a brief interview with NEWSWEEK on Wednesday, Townsend—who had worked on the Cole investigation when she served in the Justice Department during the Clinton administration—made clear her frustration over the chain of events. "There is nobody in Yemen we care more about than Badawi," she said. Scott Stanzel, a  White House spokesman, said in a statement to NEWSWEEK: "We are dismayed and deeply disappointed in the Government of Yemen's decision not to imprison" Badawi. He added that Townsend, who was also in Saudi Arabia last week, was on the ground in Yemen "for just a few hours."

After reports over the weekend that Badawi was now a free man, the Yemeni Embassy in Washington issued a carefully worded statement that seemed aimed at tamping down U.S. government anger over the incident. The statement insisted that Badawi "remains detained" but principally because of further investigation into a prison escape last year in which he and 22 cohorts, including a number of fellow Al Qaeda figures, were reported to have dug a tunnel that somehow exited exactly inside a nearby mosque. (U.S. officials widely suspected the breakout was an inside job.) The Yemeni statement added: "Jamal is fully cooperating and the Yemeni government is optimistic about receiving crucial information about other Al Qaeda operatives in Yemen and abroad."

Then on Monday of this week, the Badawi situation took another strange turn. After U.S. Ambassador Stephen Seche met with Saleh to protest, Yemeni  authorities invited a U.S. Embassy official to come visit a jail in Aden where they suddenly displayed Badawi behind bars.

But  U.S. officials are suspicious. They noted that the Yemenis typically hold terror suspects in the capital of Sana, an hourlong flight from Aden. "That was a joke," said one knowledgable former counterterrorsim official about the jail visit. (The former official asked not to be identified talking about the politically sensitive situation.) "The jail in Aden is five minutes from [Badawi's] home. It was like he was brought there just a few minutes before."

Although it has so far received relatively little media attention, the Badawi incident has infuriated counterterrorism officials throughout the government and underscored how difficult it is to build alliances in a region where sympathy for Al Qaeda remains strong and hostility toward the United States may be at an all-time high. It also may have repercussions well beyond Yemen. Some U.S. officials have noted that the handling of Badawi plays directly into the hands of hard-line Bush administration officials, principally in Vice President Cheney's office, who oppose shutting down the U.S. detention facility in Guantánamo Bay. The State and Defense Department officials who have pushed for a Gitmo closure have long contended that most of the detainees could be returned for trial and detention in home countries like Yemen—an option that seems less acceptable when confirmed Al Qaeda figures like Badawi are being let go.

Just as significantly, the incident may have prompted U.S. officials to put back on the table more aggressive options for bringing Badawi to justice. Those options, such as extralegal "snatch" operations, were widely used by the CIA in the first few years after 9/11—until they received widespread international criticism and, in a few cases, such as in Italy and Germany, led to investigations of the agency officers involved. (In the Italian case, a number of CIA officers—including the agency's chief of station—have been criminally charged for apprehending a suspected Al Qaeda operative in Milan and flying him to Egypt for interrogation.)

U.S. officials this week declined to discuss what options they are considering for Badawi. Yemeni authorities have consistently told U.S. officials they can't extradite Badawi to the United States under their Constitution. But U.S. officials are exploring the idea of trying to arrange for a third country to take custody of Badawi—and then turn him over to the United States for trial.

Before they do that, however, U.S. officials want to make sure that the indictment returned against Badawi by a federal grand jury in New York in May 2003  is still solid and he can be successfully tried by federal prosecutors there, according to a senior official involved in the case who like others interviewed declined to be identified.

The indictment of Badawi, and an associate, Fahad Al-Quso, was in part based on the confession that Badawi first made to an FBI agent in January 2001. According to a Justice Department press release at the time of the indictment, Badawi had been recruited by members of Osama bin Laden's inner circle to play a lead role in a brazen terrorist attack that illustrated Al Qaeda's determination to kill Americans across the globe.

In the October 2000 bombing, a small boat laden with high explosives pulled alongside the Cole, a naval warship, in the harbor of Aden while it was briefly docked for refueling while it was on its way to the Persian Gulf for support of U.S. operations aimed at enforcing international sanctions against the regime of Iraqi President Saddam Hussein. Suicide terrorists detonated the bomb, ripping a 40-foot hole in the side of the Cole, killing 17 and wounding 37 other sailors.

Badawi "helped procure safehouses in Aden" for the terrorists involved in the operation, and obtained the small boat that was used in the bombing, according to the Justice release.

"It has been almost three years since the attack on the USS  Cole," Attorney General John Ashcroft said in the press release at the time of the indictment. "But for those who lost loved ones on October 12, 2000, the wounds on the heart can still be felt."

That same point was underscored this week by Kirk Lippold, the former commanding officer of the Cole. "I will tell you that families [of Cole members killed in the attack] are upset to an unbelievable degree," he told NEWSWEEK. "I'm getting e-mails from crew members I haven't spoken to in years saying, 'I can't believe this is happening'."

As for Yemeni claims that Badawi is back in custody, Lippold is among those who are more than skeptical. "I will believe what the Yemeni government says when they are willing to allow us to prosecute individuals who carry out the murder of U.S. citizens. I don't believe they are reliable or trustworthy partners in the war against terrorism."