By Mark Hosenball and Joseph Ax
WASHINGTON/NEW YORK (Reuters) - A British shoe bomb-plotter-turned-government informant, who once conspired with Osama bin Laden, has become a key witness for U.S. prosecutors seeking to give American juries a taste of life inside al Qaeda, court documents, U.S. and British officials and lawyers say.
Saajid Badat, 33, has already testified via video link at the trials in New York of two alleged al Qaeda militants, and he is scheduled to give testimony at the trial of Abu Hamza al Masri, a fiery, one-eyed Egyptian preacher with hooks for hands whose terrorism case began this week.
Still, Badat, who has served a prison term and lives under a new identity in Britain, refuses to come to the United States to testify because he is wanted by American authorities on shoe-bombing charges.
Defense lawyers faced with countering his damaging testimony accuse prosecutors of trying to have their cake and eat it too.
The government is using Badat as a witness in U.S. courts, they say, in violation of an agreement with British authorities that he would testify "in the United States" - where he could be confronted by defense lawyers during cross-examination - while leaving the indictment against him in place indefinitely.
"The government has created the situation that's allowed him to be unavailable," said Jeremy Schneider, a lawyer for Abu Hamza.
Badat's British lawyer did not respond to requests for comment.
UK investigators call Badat a "supergrass," a British colloquialism for a prolific informant.
He struck a formal deal with British authorities to give information and testify against fellow militants in return for a reduced prison term.
In a 2012 statement posted on its website, Britain's Crown Prosecution Service said Badat was the first-ever "UK convicted terrorist" to agree with authorities to "give evidence in a trial against other terrorists."
The service said that under the deal, Badat explicitly agreed to give evidence "in the United States" against an alleged al Qaeda plotter, the first time British authorities had ever entered into such an agreement.
Most of the testimony Badat has given so far in U.S. court cases has focused on his interactions with bin Laden and other Qaeda commanders while training in Afghanistan, helping prosecutors build a picture of how al Qaeda operated without directly incriminating specific defendants on trial.
Late last week, Badat gave a video deposition in the U.S. case against Babar Ahmed and Syed Talha Ahsan, former residents of south London who once operated pro-Qaeda websites. The two pleaded guilty to terrorism support charges in Connecticut after spending years in British jails fighting to avoid extradition.
In an April 1 court filing, their lawyers questioned why the government wanted Badat to testify at their sentencing hearings when there had not previously been even a "fleeting reference" to him in 10 years of extradition litigation.
Defense lawyers and prosecutors have more recently been arguing over how relevant, and appropriate, his testimony is to the case of Abu Hamza, which opened in New York on Monday.
Lawyers for Ahmed and Ahsan accused U.S. authorities of playing games by keeping the criminal case against Badat alive, making it impossible to question him in front of jury members.
As long ago as 2009, they said, a U.S. Justice Department official told Badat's lawyers in writing that the department had agreed to consider whether his cooperation might lead to a resolution of the U.S. case against him.
The Justice Department official said she was "hopeful that we will have an answer to you shortly." However, in a letter to a federal judge last month, lawyers for one of the British militants said that five years later, the United States still has not resolved its case against Badat.
LIFE IN AL QAEDA
Badat testified by video about life in al Qaeda training camps at the 2012 trial in Brooklyn of Adis Medunjanin, an alleged associate of Najibullah Zazi, who pleaded guilty with a third man to plotting to bomb the New York City subway system. Medunjanin was convicted on charges related to the plot.
Badat also testified by video link at the recent trial in Manhattan of Suleiman Abu Ghaith, bin Laden's son-in-law, who made threatening speeches after the September 11, 2001, attacks.
At the trial of Abu Ghaith, Badat said he and Richard Reid, a Briton who was jailed after trying to attack an airliner with a shoe bomb in December 2001, had been plotting shoe bombings around the time Abu Ghaith was recording videos warning of further al Qaeda attacks against the United States.
Badat said he could not recall ever meeting Abu Ghaith and did not know if he had been told of the shoe bomb plan. While Reid went ahead with his shoe bomb attempt, Badat had second thoughts. He said he dismantled the bomb given to him by a top al Qaeda commander and hid the parts in his home, where they later were recovered by British investigators.
Abu Ghaith was convicted last month.
During his U.S. court appearances, Badat has testified that bin Laden, who was killed three years ago in a U.S. commando raid on his hideout in Pakistan, personally gave him pep talks as part of his preparations for becoming a shoe bomber.
Badat's refusal to come to the United States sparked heated debate as lawyers prepared for the trial of Abu Hamza, the Egyptian-born preacher who reportedly suffered his disfiguring injuries while training with militants in Afghanistan.
Abu Hamza, also known as Mustafa Kamel Mustafa, is accused of conspiring in a 1998 kidnapping of tourists in Yemen that resulted in the deaths of three Britons and an Australian. He is also charged with plotting to set up a training camp in Oregon and providing material support to al Qaeda in Afghanistan.
Prosecutors asked U.S. District Judge Katherine Forrest to allow Badat to testify live on closed-circuit television. Initially, Forrest criticized the Department of Justice for failing to press Badat "with vigor" on his refusal to come to the United States for fear of arrest.
At a hearing last week, Forrest noted Badat's agreement with Britain called for him to testify "in the United States."
Prosecutors argued that the phrase only required him to testify but did not require his physical presence on U.S. soil. Lawyers for Abu Hamza said the government was trying to use Badat without requiring him to fulfill his British agreement.
Assistant U.S. Attorney Ian McGinley said U.S. authorities were still mulling Badat's shoe-bombing charges.
"My understanding is it's still an ongoing process, but I'm not privy - that is a District of Massachusetts decision," McGinley said at a recent court hearing.
The judge suggested U.S. Attorney General Eric Holder might have to sign off on any decision.
"I would assume this decision would have to go straight up to Holder, right?" she asked.
"I would assume," the prosecutor replied.
As the trial opened, the judge announced her decision to allow Badat once again to testify by remote video link.
(Reporting by Mark Hosenball and Joseph Ax; Editing by Jim Loney and Bernadette Baum)