2 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 38 of the trial, May 2, 2001.
See other transcripts: usa-v-ubl-dt.htm
5391
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 May 2, 2001
10:00 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
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18
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23
24
25
5392
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
17
18
19
20
21
22
23
24
25
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1 (Trial resumed, jury not present)
2 THE COURT: Everyone here? Any reason not to bring
3 in the jury? Please tell them to bring the jury in.
4 MR. RICCO: Your Honor, at the end of all the
5 evidence in the case the defense neglected to formally make
6 the Rule 29 motions and we would like to do it at the end of
7 the day, just so the record is complete.
8 MR. DRATEL: Yes, we join that.
9 (Jury present)
10 THE COURT: Good morning. Mr. Karas, as soon as the
11 jury is seated you may begin.
12 MR. KARAS: Thank you, your Honor. Good morning
13 again.
14 What I would like to do this morning is take up three
15 items from yesterday that I would like to clarify. The first,
16 we showed you a letter that made clear that Ibrahim Eidarous
17 had been put in charge of the London cell, the EIJ group. We
18 had showed you 1520 and that was not the document to show you.
19 The document was 1516-T. This is one of the documents that
20 was found in the trunk of Eidarous's car.
21 What you see there at the top, dated June 28, 1998,
22 you may remember that in October of 1997, Eidarous had written
23 Zawahiri, the leader of the EIJ, please tell the brothers in
24 London who is in charge. In this letter Eidarous complies,
25 and he says, dear brothers, number 1, brother Ibrahim is the
5394
1 one in charge in London, and the brothers must listen and obey
2 him. Any brother who doesn't act accordingly will be subject
3 to having the group take a stand against him as it happened to
4 other brothers before, which warning will be the last one
5 concerning this issue.
6 So you see that Zawahiri makes clear that Eidarous is
7 in charge, and Eidarous is the one who will be involved in
8 helping to disseminate the claims for responsibility for the
9 bombings from London.
10 The second thing you see there is that there is an
11 element of discipline within EIJ, and you saw it with respect
12 to Al Qaeda and their concerns regarding Abu Fadhl al Makkee
13 and their concern that he was cooperating with the Americans.
14 So that's the first item from yesterday.
15 The second item from yesterday concerned two
16 exhibits, Government's Exhibit 310-74A, and this is one of the
17 documents that is found on the disks found in El Hage's house
18 during the search in August of 1997 that Agent Coleman
19 testified about. We went through this document yesterday, and
20 one of the things that I had mentioned, I read you a quote
21 regarding Somalia was not being limited to merely the training
22 of groups who want to fight and the fight is over and the
23 quote went on, we are not a relief organization. That quote I
24 attributed to Government's Exhibit 710-96T. 710-96T are the
25 tape letters that were found in Odeh's house. That
5395
1 attribution was incorrect, ladies and gentlemen. That quote
2 that I read you was from the disk document 310-74AT. Just so
3 we are clear, the quote that I read, our goal in Somalia was
4 not limited to merely the training of groups who want to fight
5 and the cause is over, however, our goals are bigger than
6 that. We are not a relief organization which comes every now
7 and then to assist the victims and leave. That quote is from
8 310-74AT, the document that is taken from run one of the disks
9 found in El Hage's house, not the tape letter from the
10 defendant Odeh.
11 The third matter was the one we ended on yesterday,
12 which was the Khalid Saleh Muslim Bin Rasheed passport that
13 the defendant Mohamed Al-'Owhali had.
14 MR. COHN: Excuse me, Mr. Karas. I am sorry. We are
15 having difficulty hearing you.
16 MR. KARAS: OK. System on?
17 MR. COHN: Doesn't seem to be.
18 MR. KARAS: I will try to speak up.
19 Yesterday you I told you if you look in the passport
20 you will see the entries for Al-'Owhali's arrival in Pakistan
21 on the 18th of May 1998, and it is in there and displayed on
22 your screen.
23 The other thing that I would remind you, during his
24 statement to Agent Gaudin the defendant Al-'Owhali himself
25 told Agent Gaudin that he did go back from Yemen to Pakistan,
5396
1 and it was after he got back to Pakistan and then Afghanistan
2 that he first learned of his mission to attack American
3 targets. As Judge Sand instructed you yesterday and during
4 the testimony of the statements given by these defendants, and
5 as the judge will instruct you at the end of our closing
6 statements, the statements given by the defendants to the
7 agents are only evidence against those defendants. So when
8 Mohamed Al-'Owhali said to Agent Gaudin that he went to
9 Pakistan a few months before the bombing, that statement is
10 admissible only against defendant Mohamed Al-'Owhali. But
11 what you see here is evidence in the passport that also shows
12 that he went to Pakistan on May 18, 1998, just a few months
13 before the bombing.
14 So that is where we left off yesterday, May 18, 1998,
15 about two and a half months before the day of the bombings the
16 next date we get to is May 28, 1998, and that is the day that
17 Usama Bin Laden gives another interview, and this one is to
18 ABC News. By way of stipulation you know that the interview
19 was given on May 28, 1998, in Afghanistan, and you may
20 remember you saw the video and you can see the interview take
21 place in one of the caves, if you would, in Afghanistan where
22 Bin Laden was working, and you saw some of the people around
23 him that had some of the machine guns, and you actually
24 witnessed the interview.
25 You also may remember we talked yesterday about that
5397
1 person Tarik Hamdi to whom the battery pack was sent for the
2 satellite phone, and he was part of the ABC News team that
3 went to Pakistan and he sent the fax saying we're here and
4 everybody is fine. So all that is going on in May 1998.
5 The transcript of the interview is Government's
6 Exhibit 81T, and if we turn to the bottom of the second page
7 of 81T, Bin Laden repeats the fatwah that he gave in February,
8 and he says to the person from ABC News, we do not
9 differentiate between those dressed in military uniforms and
10 civilians. They are all targets in this fatwah, especially
11 since American officials have stated after the Khobar bombing
12 that there was a lack of information and all American
13 civilians were asked to gather information on Muslims and
14 observant Muslim youth and to convey to the security section
15 in the embassy, the fatwah is general and includes all that
16 share or take part in killing of Muslims, assaulting holy
17 places or those who help the Jews occupy Muslim land.
18 Ladies and gentlemen, you know that by May 28, 1998,
19 that the operation in East Africa is under full steam, and Bin
20 Laden, as we now can figure out after the fact, is saying to
21 the American public, everybody is a target, and in particular
22 your embassies are targets because we know that the Americans
23 have invited their civilians to provide information about us
24 to the security section of their embassies.
25 If we go to the fifth page of the transcript, at the
5398
1 very top once again Bin Laden is blunt. We predict a black
2 day for America and the end of the United States as united
3 states, and will be separate states, and they will retreat
4 from our land and collect the bodies of its sons back to
5 America, Allah willing.
6 Ladies and gentlemen, as we go through these
7 statements that Bin Laden gives, I ask you to bear in mind
8 that on August 250, 1998, 13 days after the embassies were
9 bombed, Agent Miranda told you that he interviewed the
10 defendant Wadih El Hage, and Wadih El Hage told Agent Miranda
11 that Bin Laden would not have carried out the bombings of
12 Nairobi because he was a humanitarian, and that's what the
13 humanitarians said.
14 At the bottom of the page Bin Laden goes on to say,
15 this does not make a difference -- and he is referring to the
16 Saudi government wanting the American military in the gulf --
17 since American oppression, boastfulness and greed still
18 exists. They came by the approval of government. It does not
19 make a difference if the government wants you to stay or leave
20 because you will not leave by their words. You will leave
21 when the youth send you the wooden boxes and the coffins, and
22 you will carry in it the corpses of the American troops and
23 the American civilians. This is when you will leave. The
24 decision-makers beyond taking you out are the Muslim masses in
25 the Muslim world who are defending the Muslim lands, Allah
5399
1 willing, we will win. That is what the humanitarian warns the
2 United States.
3 On the very next page, page 6, Bin Laden next talks
4 about the situation in Somalia, and what he says at the very
5 top, after Allah honored us with victory in Afghanistan and
6 justice prevailed and the killings of those who slaughtered
7 millions of Muslims in the Muslim republics, it cleared from
8 the Muslim minds the myth of superpowers. The youth ceased
9 from seeing America as a superpower. After leaving
10 Afghanistan they headed for Somalia and prepared for a long
11 battle, thinking that the Americans are like the Russians.
12 But they were surprised when the Americans entered with 30,000
13 troops and collected more troops from the world, 5,000 from
14 Pakistan, 5,000 from India, 5,000 from Bangladesh, and also
15 Egypt, Senegal, and others like Saudi. The youth were
16 surprised at the low morale of the American soldiers and
17 realized more than before that the American soldier is a paper
18 tiger. And after a few blows he ran in defeat, and America
19 forgot all the hoopla and media propaganda after leaving the
20 Gulf War and destroying infrastructure, destroying baby
21 formula factories, all civilian factories bridges and damns
22 that help planting food. America presented itself as the
23 world leader and the leader of the new world order, and after
24 a few blows they forgot about this title and left dragging
25 their corpses and their shameful defeat and stopped using such
5400
1 titles. And the politicians in America learn that this is
2 larger than them and that they were not fit for it. When this
3 took place I was in Sudan and this great defeat against
4 America pleased me very much, the way it pleased all Muslims.
5 Allah willing, the next victory will be in Hijjaz and Najd.
6 Saudi Arabia will make the Americans forget the horrors of the
7 Vietnam and Beirut. There you see Bin Laden talking about the
8 work of these people, the Mujahideen who you know from the
9 other evidence are connected to Al Qaeda and Bin Laden's
10 group, saying that they were in Somalia. But again, he is not
11 saying they were the ones who fired the rockets and shot the
12 guns, but he is accepting responsibility on behalf of the
13 Mujahideen of the youth who were there participating in
14 Somalia.
15 The other thing he is once again saying is that the
16 lesson he learned from Somalia, he believes, is that the
17 Americans will leave if they are attacked. So to him that
18 justifies the attacks against America, because remember, the
19 thing he wants more than anything else is to see the Americans
20 leave Saudi Arabia, and he believes the Americans will leave
21 if they are attacked. So he is predicting a dark day. He is
22 predicting he will send people home in body bags and in
23 coffins. As you know, ladies and gentlemen, his implementers
24 are carrying out that plan as he is giving this interview.
25 Down on the page, Bin Laden makes explicit his
5401
1 definition of who is innocent and who is not, and he explains
2 why it is that even American civilians are not innocent. He
3 is asked explicitly, many Americans believe that fighting army
4 to army like what happened in Afghanistan is heroic for either
5 army, but setting off bombs, killing civilians and incidents
6 like the World Trade Center is terrorism. Bin Laden responds
7 by saying, they don't according to the standards he is making.
8 After our victory in Afghanistan and defeating the Russians,
9 the world media lead by the American media started a campaign
10 against us that is still going on until today. Despite the
11 fact that the Russians left in 1989, almost 10 years ago, they
12 have been carrying out this campaign accusing us of being
13 terrorist. Without any action being taken by the Mujahideen
14 against the real terrorists, the Americans, this on the one
15 hand. On the other hand, American policy does not admit to
16 differentiate between civilians, military, child, human or
17 animal.
18 On the next page, Bin Laden continues. The crusaders
19 continued their slaughter of our mothers and children, and
20 America every time takes a decision to support them and
21 prevent weapons from reaching the Muslims, leaving the Serbian
22 butcher to slaughter Muslims. And then Bin Laden says, you do
23 not have a religion that prevents you from carrying out these
24 actions and therefore you do not have a right to object to
25 like treatment. Every action solicits a reaction. It is a
5402
1 punishment that is equally inflicted. At the same time, our
2 primary target are military and those in its employment. Our
3 religion forbids us to kill innocent children, women who are
4 not combatants. However, women soldiers who place themselves
5 in the battle trenches receive the same treatment as fighting
6 men.
7 Remember what imam Siraj Wahhaj said, no religion
8 kills innocent people. The implicit assumption is that that
9 includes civilians and women and children. But Bin Laden says
10 that he thinks there is a double standard and he thinks that
11 because the American people are responsible for what he
12 considers to be a tax on civilians, and he gives the example,
13 among others, of Hiroshima and Nagasaki, that all American
14 civilians are not innocent. They are in his eyes combatants.
15 They are in his eyes legitimate targets.
16 Again you know that while he is giving this
17 statement, the people in his organization, the people who are
18 part of the conspiracy charged in Count 1 are getting the bomb
19 factories ready, they are getting the bomb trucks, and they
20 are going to carry out the attack on people that they don't
21 consider to be innocent, people they consider to be legitimate
22 targets because of their nationality.
23 Bin Laden says down at the bottom, the very bottom of
24 page 7, the presence of Americans in the land of al Haramain,
25 Saudi Arabia, supports the Jews in the prophet's Holy Land,
5403
1 peace be upon him, and gives him a safe back. The American
2 government at the time there are millions of Americans living
3 on the street and living below the standard of living and in
4 stricken poverty, we find the American government turning
5 towards helping Israel and occupying our land and building
6 settlements in the prophet's Holy Land. The American
7 government is throwing away the lives of Americans in the land
8 of al Haramain and other places for the interests of the Jews.
9 The Jews are a people that Allah cited in his holy book the
10 Koran, a people who didn't abstain from killing God's
11 prophets.
12 Skipping down, he says they believe that all humans
13 are animals to be exploited by them and found that Americans
14 are the best created beings for that use. The American
15 government is driving America to destruction and rational
16 people have no doubt that America will not be a superpower at
17 the turn of the next century.
18 So we it will the American people, and we tell the
19 mothers of soldiers, and American mothers in general, if they
20 value their lives and those of their children to find a
21 nationalistic government that would look after their interests
22 and not the interests of the Jews. The continuation of the
23 repression will bring the fighting to America, like Ramzi
24 Yousef and others. This is my message to the American people
25 to look for a serious government that looks out for their
5404
1 interests and does not attack others, their lands or their
2 money.
3 So now Bin Laden looks into the camera and he says
4 notwithstanding the fact that the religion doesn't allow the
5 killing of women and children, says to the mothers of America.
6 Before he said if you're concerned about your sons, when he
7 was interviewed by CNN. Now he says if you are concerned
8 about your own life in addition to the life of your children,
9 then you will change your government. He says to the American
10 mothers, you are now targets of this fatwah, you are not
11 innocent. In Bin Laden's view he says that American mothers
12 can be attacked. In the very next answer, Bin Laden says the
13 reaction is increasing fast and I am sure of our victory with
14 Allah's help against Americans and the Jews. We see this then
15 in the strength of the reaction, that every day the Americans
16 delay their departure, for every day they delay they will
17 receive a new corpse from Muslim countries to America.
18 And then on page 9 Bin Laden once again brings up the
19 subject of Omar Abdel Rahman, and what he says there, we place
20 total responsibility on the American government for any attack
21 against Muslims and its supportive regimes in our countries
22 against the best interests of the people. We also hold them
23 responsible for its attacks on Islamic symbols, sheik Omar
24 Abdel Rahman, who is considered one of the most prominent
25 Islamic scholars, who Allah gave the courage to speak the
5405
1 truth.
2 You remember what the witness Jamal al-Fadl told you,
3 that later way back when the group learned that Omar Abdel
4 Rahman had been arrested, there were people who wanted to
5 retaliate and some who left because they didn't think the
6 retaliation came soon enough. Here you have Bin Laden
7 confirming what al-Fadl told you. They were very angry and
8 they would take their time to retaliate when they want.
9 Another piece of evidence that you saw during this
10 trial that confirms what Jamal al-Fadl told you, and also what
11 Bin Laden is saying there, is Government's Exhibit 367A. This
12 is a document that was found during the search of Ali
13 Mohamed's house in California. Again, Ali Mohamed is the
14 person who Kherchtou knew as Ali Mohamed al Amriki, the person
15 who conducted the surveillance training, the person who came
16 to Nairobi in late 1993 with Anas al Liby and their photo
17 equipment and the cameras and the computers. What you see
18 here is, this is a letter, and you see it is a reference to
19 the case United States v. Omar Abdel Rahman and it is a
20 discussion of some information that is being provided. Down
21 at the bottom, including a list of unindicted
22 coconspirators -- and the judge gave you an instruction what
23 that means -- is handwritten Haydara. Haydara is one of the
24 nicknames for Ali Mohamed. What he says there, to supervisor,
25 hi, please deliver the five pages to the supervisor by hand.
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1 So Ali Mohamed, one of the people who has worked with some of
2 the people in this conspiracy -- and Haydara is one of the
3 aliases for Ali Mohamed -- he is monitoring what is going on
4 in this case with Omar Abdel Rahman, the same witness that
5 Jamal al-Fadl told you he was concerned about and angry about
6 and the same person Bin Laden just mentioned in the ABC
7 interview. Ali Mohamed, who is there to do the surveillance
8 in 1983, he is sending a document connected to the Omar Abdel
9 Rahman case to the supervisor and he wants it hand-delivered
10 from Haydara in California.
11 One other thing to bear in mind about the ABC
12 interview is that Mohamed Al-'Owhali told Agent Gaudin that he
13 was there when Bin Laden gave his interview, and he was there
14 when Bin Laden made these statements that we just went through
15 about attacking American targets and attacking in particular
16 American civilians.
17 The next event is May 29, the very next day, and this
18 is a document that was read to you during the trial. It is
19 Government's Exhibit 1610-T. This is a document that is found
20 in the residence of Khalid al Fawwaz, one of the three people
21 in London at 94 Dewsbury Road, and this is the document that
22 was titled the endorsement of the nuclear bomb of Islam, and
23 it is a statement by Bin Laden where he says, among other
24 things, it is the duty of the Muslims to prepare as much force
25 possible to terrorize the enemies of God. So the day after
5407
1 Bin Laden predicts a dark day for America and American
2 civilians, Bin Laden endorses a nuclear bomb that he says is
3 needed to terrorize the enemies of God.
4 Next we turn to June 1998, and one of the things that
5 happens during the summer of 1998 is what Mohamed Al-'Owhali
6 told Agent Gaudin, that at some point during the summer he
7 gets instructions to go to Nairobi and he is told that the
8 target will be an American target. We will talk a little bit
9 more about some of the things that Al-'Owhali did before he
10 went to Nairobi.
11 On June 9 the defendant Khalfan Khamis Mohamed
12 purchases the white Suzuki Samurai with the person depicted in
13 Government's Exhibit 124, Fahad Mohamed Ally Masalam. We will
14 call him Fahad Mohamed to make it simple. Government's
15 Exhibit 60 is a stipulation that related to the contract, some
16 of the records found from the Department of Motor Vehicles.
17 You will see Government's Exhibit 1410 is a picture of the
18 white Suzuki that Khalfan Khamis Mohamed purchased.
19 Government's Exhibit 1420 is the contract for the sale. You
20 see at the top there it says 9/6/198. Again, transposing
21 those numbers, it is June 9, 1998. You see there the contract
22 and the buyer listed, K.K. Mohammed, and then one of the
23 witnesses down there at the very bottom is Fahad M. Ally.
24 Government's Exhibit 1461 is the summary chart that relates to
25 the fingerprint testing that was done on the items related to
5408
1 the bombing in Dar es Salaam, and you see down there at the
2 bottom there is a fingerprint on that contract for Fahad
3 Mohamed Ally, and three fingerprints and a palm print from
4 Khalfan Khamis Mohamed.
5 Khalfan Khamis Mohamed told Agent Perkins that the
6 Suzuki was used to transport the components of the bomb, the
7 TNT, the cylinders and so forth, but there is other evidence
8 that tells you that. Amina Rasheed was the person who worked
9 at 15 Amani. She did the cleaning and the cooking. She told
10 you how she saw the person Mohamed and the person she knew as
11 Hussein, and she described Mustafa Fadhl, and where Khalfan
12 Khamis Mohamed lived, and she saw Hussein driving around in
13 the Suzuki. But you also know from Government's Exhibit 1462,
14 second page of 1462. This is a summary chart of the results
15 of the chemical work that was done on the Suzuki, and you see
16 a listing of the swabbings and some of the items that were
17 taken from the Suzuki, and you see on the right-hand side,
18 almost across the board, items testing positive. It is as if
19 someone took the Suzuki and dipped it in TNT. You can see
20 this was the utility vehicle that Khalfan Khamis purchased,
21 that the group used to collect the components for the bomb.
22 Six days later, June 15, 1998, Khalfan Khamis
23 Mohamed, and again Hussein, Mustafa Fadhl, rent the residence
24 at 213 Ilala. You know that a number of ways. First you know
25 from the lease itself. You may remember that Khalfan Khamis
5409
1 Mohamed told Agent Perkins that there was an older skinny
2 gentleman involved in the transaction and you heard from
3 Mohamed Solimani, who told you that he was the broker. What
4 Mohamed Solimani told you was, he remembered Mohamed and
5 Hussein coming to him and they were looking for a place that
6 had high walls and a driveway for a vehicle. He showed them a
7 couple of places that they didn't like and eventually they
8 settled on the place known as 213 Ilala, and Solimani told you
9 about the lease and he said that Khalfan signed it and Hussein
10 signed it. That's Mustafa Fadhl. From Government's Exhibit
11 1461 -- actually, if you want to focus on the bottom -- you
12 see there Khalfan Khamis, and one of the witnesses, Hassan
13 Ali. Solimani told you he saw them sign that lease.
14 Government's Exhibit 461 is the summary chart
15 relating to the fingerprint analysis that was done. You see
16 Khalfan Khamis Mohamed's fingerprint is on the lease,
17 Government's Exhibit 1353.
18 Ladies and gentlemen, this residence is the bomb
19 factory in Dar es Salaam. It is the equivalent to 43 Runda
20 Estates that Harun had rented, where his fingerprints were
21 found, and the place that tested positive for the TNT, PETN,
22 and the aluminum powder. If you look at Government's Exhibit
23 1350A, this is an exterior photograph of 213 Ilala, and it is
24 precisely what the group wanted to build its bomb. It is a
25 high wall, and we will take a look at some of the pictures on
5410
1 the inside, to construct the bomb, bring the bomb there, store
2 it and load up the bomb into the truck.
3 Next, if we look at 1351F, this is along the side of
4 the house. You see the red gate, so we are looking from
5 behind the red gate. You see the wooden frame along the wall
6 opposite the house. You may remember that Khalfan Khamis
7 Mohamed told Agent Perkins that Hussein had built an extra
8 gate, a barrier to shield the bomb from the public's view, and
9 you see the remnants in that picture.
10 Let's look next at 1352, and this is the overhead
11 sketch, if you will, the bird's eye view. You see on the top
12 left there, that orange part marked garbage pit. You remember
13 that the agents described how they went and searched some of
14 the items in the garbage pit, and of course they went around
15 the house. You saw some of the items that they found.
16 Government's Exhibit 1355 is the detonator. Agent West, he
17 was the explosives expert who testified about some of the
18 items in Dar es Salaam. This is the detonator that they found
19 on a window sill at 213 Ilala. There were several detonators
20 that were put in these wooden boxes that the TNT was stored
21 in.
22 Government's Exhibit 1357B is one of the three broom
23 whisks that was found at 213 Ilala, and one of the many items
24 in 213 Ilala that tested positive for explosives.
25 Government's Exhibit 1372 is a burlap bag, and you may
5411
1 remember that Khalfan Khamis Mohamed described how the TNT was
2 stored in what he called a rice bag, something that wouldn't
3 allow one to see inside. This was one of the many items found
4 at 213 Ilala.
5 Government's Exhibit 1358 is a yellow razor found by
6 the sink, and I think you saw some of the photographs of the
7 sink. There is a stipulation that this yellow razor was
8 tested for DNA, and one of the things found on this was a DNA
9 match for Hamdan Khalif Alal. You may remember, and we will
10 discuss this later, that the suicide truck driver in Dar es
11 Salaam was known as Ahmed the German, because of his blond
12 hair. The DNA taken off this razor confirms that this person
13 was from Egypt, and there is a stipulation that that same
14 person called to his family in Egypt on August 6, 1998, the
15 day before the bombing, and wanted the family to assemble the
16 next morning because he was going to tell the family that he
17 was leaving this life.
18 Government's Exhibit 1374 is some rope, some twine.
19 You may remember that Khalfan Khamis Mohamed told Agent
20 Perkins that was one of the ways they secured the oxygen
21 tanks, and you have some exemplars here, Government's Exhibits
22 1165 and 66, and Khalfan Khamis Mohamed described for you tall
23 and short that were used, they used some rope to secure them
24 along the wall of the truck, and you see some of it left over
25 at 213 Ilala. Government's Exhibit 1375 is some wiring left
5412
1 over, and of course Khalfan Khamis Mohamed described that they
2 had wired the bomb, they had to wire the batteries to the back
3 up to the front of the truck so that the suicide driver he
4 knew as Ahmed could detonate the bomb. 1365 is some black
5 tape. Then, I think it is 1376 -- and I would lift it up but
6 I would probably hurt myself -- is this very heavy metal rod.
7 This was found at 213 Ilala. You remember the welder of the
8 truck, Julius Kisingo, who described for you some of the work
9 that he had done, and he specifically remembered that he
10 recognized some of these pellets along the side, and this was
11 some of the work that he had been asked to do on the truck
12 along the side. Precisely what it was he described he had
13 done and the person he identified, by the way, is this person,
14 Sheik Ahmed Salim Swedan, the same person we will talk about
15 in a moment who locked the truck in the Nairobi bombing.
16 Julius Kisingo told you that this person came by and asked him
17 to do some of the welding in the back of the truck, and one of
18 the pieces was later found at 213 Ilala.
19 The other thing that happens during the summer in Dar
20 es Salaam, and again, Amina Rasheed, the person who worked at
21 15 Amani Street, Government's Exhibit 1300, she described
22 meetings that summer involving Ahmed Khalfan, who she knew as
23 Ahmed, and she identified his picture as being the person who
24 lived there, and she said he had his own room and it was
25 locked and she never had access to it, and she described
5413
1 people who came that summer to have meetings. She described
2 this person as being Hussein, and Fahad, the same person that
3 Khalfan Khamis Mohamed bought the Suzuki with, and this being
4 the person, Government's Exhibit 117, who he rented 213 Ilala
5 with. She said Ahmed told her that he was leaving and she
6 last saw him two weeks before the bombing. Then you learned
7 by way of stipulation that there was a search of 15 Amani, and
8 the FBI found another detonator, Government's Exhibit 1305;
9 passport photographs of Ahmed, Government's Exhibit 1306A, a
10 number of passport photographs; and then Government's Exhibit
11 1306E-P, passport photograph of the defendant Khalfan Khamis
12 Mohamed that was found at 15 Amani Street. You know from
13 Government's Exhibit 1461, which again is the summary chart of
14 the fingerprints, that Khalfan Khamis Mohamed's fingerprints
15 are found on two other items that were located at 15 Amani.
16 It was a passport application in the name Zahran Nassor
17 Maulid, and several of his fingerprints are on that. The
18 other thing that they found was records for a mobile telephone
19 number, 328848. 328848. You see up on the screen there, one
20 of the pages lists the subscriber of that mobile phone as
21 Ahmed Khalfan, P.O. Box 15577. Government's Exhibit 1459C is
22 a summary chart of some of the outgoing calls from that phone,
23 and on June 13, 1998, you see a call from that mobile phone to
24 a number we talked about yesterday, 512430. If you look on
25 the far right you see the subscriber for that is 43 Runda
5414
1 Estates, the bomb factory in Nairobi. So by June, telephone
2 contact between the two bomb factories.
3 You may remember that Khalfan Khamis Mohamed told
4 Agent Perkins that he remembered that Hussein, Mustafa, had a
5 mobile phone that he thought that Ahmed had gotten for him.
6 June 19 is the next date we will look at, and if you
7 take a look at Government's Exhibit 902, 902 is a passport
8 that is found in the Comoros in Harun's house, and that is a
9 passport for somebody who is identified as Jihad Ali. This is
10 the suicide driver of the bomb truck in Nairobi. If we go
11 through the passport we will see that on the 19th of June
12 Assam leaves Pakistan, and if we take a look at the next page
13 of the passport we will see that he enters into Kenya on the
14 19th. So by mid-June the suicide driver of the truck in
15 Nairobi is in Nairobi.
16 Towards the end of June you know from a witness you
17 heard, Said Salim Omar, who described for you how he lived in
18 Mombasa, and he had a truck, a Toyota Dyna, and that he sold
19 the truck to somebody he knew. He identified Sheik Ahmed
20 Salim Swedan. Government's Exhibits 583A through D are some
21 of the documents that Said Salim Omar had with the Dyna. He
22 described this conversation about how he joked for selling the
23 truck for $10,000, and Swedan jumped on it and said I'll take
24 it. Eventually they worked out a deal, and Said Salim Omar
25 said he has never seen him ever since. He was never able to
5415
1 get the paperwork, but he did say that he saw the truck after
2 he sold it, and there was one change, that the flatbed had
3 originally been uncovered and when he saw it later, it was
4 covered. They had modified the truck to hide the bomb before
5 they delivered the bomb.
6 Ladies and gentlemen, the evidence is overwhelming
7 that this is the bomb truck that the defendant Mohamed
8 Al-'Owhali drove in on the morning of August 7. First you
9 know that the same person bought both the Toyota Dyna for the
10 Nairobi bombing and the Nissan Atlas for the Dar es Salaam
11 bombing. But the other thing you know is from Agent
12 Sachtleben, who talked to you about some of the vehicle parts
13 that were found in the vicinity of the embassy in Nairobi, and
14 he described for you a couple of parts in particular that he
15 could identify based on the damage to them were from the
16 actual bomb truck. On the screen you see Government's Exhibit
17 840, which is the parts that were identified by both Agent
18 Sachtleben and Mr. Miyagi, who was the expert from Toyota.
19 Government's Exhibit 815 is the right front frame part -- if
20 you look at the documents, they have the chassis number, BU61,
21 and it lists the rest of the number. Agent Sachtleben told
22 you that based on the damage to the metal he could tell this
23 was from the actual vehicle. Mr. Miyagi told you that he
24 could tell this was from a Toyota truck part.
25 Government's Exhibits 822 and 823 are the rear axle
5416
1 pieces, and Agent Sachtleben described for you how he could
2 tell there was a significant force that came down from the top
3 of the axle piece, and he described for you the damage that
4 was done, and he could tell based on that damage that this
5 axle piece sat right underneath the bomb as it went off.
6 These pieces, you remember, were found in that railway yard
7 that were hundreds of yards away from the bomb, hundreds of
8 yards away. Mr. Miyagi, you may recall, designed the pieces
9 for the Toyota, told you that this was the rear axle piece for
10 a Toyota Dyna.
11 One of the other pieces was the Pitman arm,
12 Government's Exhibit 826. You remember the damage on the one
13 side, and the side that faced the back of the truck. Agent
14 Sachtleben told you that was consistent with being right near
15 the bomb. Mr. Miyaga told you exactly what that piece did and
16 where it was oriented. This was that was the piece where the
17 bomb blast came from the one side.
18 The defendant Odeh described to the FBI a meeting he
19 had with somebody he identified as Ahmed the German 40 days
20 before August 6. That puts it into roughly late June. What
21 Odeh told the FBI is that Ahmed the Egyptian came to him and
22 delivered --
23 MR. RICCO: Objection, Judge.
24 MR. KARAS: -- a message that Sheik Hassan from
25 Somalia wanted to meet with Bin Laden, and that Odeh, Ahmed
5417
1 the Egyptian -- and we will make clear that Ahmed the Egyptian
2 is not the same person as Ahmed the suicide driver in Dar es
3 Salaam, if that's the issue -- and Mustafa Fadhl, Odeh, Ahmed
4 the Egyptian or Mustafa Fadhl, had to export this person Sheik
5 Hassan from Somalia to go see Bin Laden. But the other thing
6 that Odeh told the FBI was that Ahmed the Egyptian also said
7 that Bin Laden had new plans to fight and that Odeh would have
8 to travel to confer with Bin Laden about these new plans to
9 fight.
10 Now we move to July. By July, Khalfan Khamis Mohamed
11 told you that he and Mustafa Hussein and Hussein's wife and
12 children, Anas and Yousef, moved into the house -- ladies and
13 gentlemen, one thing to think about, you have Hussein, Mustafa
14 Fadhl, in a bomb factory where he and others are going to
15 construct a bomb. They are going to have TNT and detonators,
16 and Mustafa Fadhl is a family man, and he brings his wife and
17 two children with him every step of the way. You will see
18 that he brings them with him when they flee East Africa to go
19 to Afghanistan before the bombing. Terrorists do have
20 families, ladies and gentlemen, and Mustafa Fadhl is living
21 proof of that.
22 What Khalfan Khamis Mohamed described for you --
23 excuse me, to Agent Perkins -- was that Ahmed Khalfan and
24 Fahad were responsible for getting some of the components of
25 the bomb. They were responsible for getting the detonators,
5418
1 they were responsible for getting the TNT. You saw the
2 detonator that was found in Ahmed Khalfan's room at 15 Amani.
3 Late July, somewhere between July 24 and July 30, the bomb
4 truck for Dar es Salaam is purchased, and one of the witnesses
5 you heard from was Mohamed Sultan. He was the very first
6 witness you heard from that day, all the people that came from
7 Tanzania, and he described for you that Mohamed Sultan had a
8 truck, that he wanted to sell the truck, and he went through
9 and he described for you a transaction that took two days.
10 What he said was that one person he thought was the tall one,
11 and he identified the picture of Swedan, the same person who
12 bought the truck, the Dyna, and another person he described as
13 Fupi, the short one -- Ahmed Khalfan was the picture that he
14 identified, who Khalfan Khamis Mohamed said was responsible
15 for getting some of the components for the truck.
16 In fact, Mohamed Sultan identified a picture,
17 Government's Exhibit 1175, as looking like the truck that he
18 sold to these two individuals. One of the things he told you
19 was that they went looking for this person Fupi one day, and
20 he identified the picture Government's Exhibit 1300 which was
21 15 Amani, the place where the passport photo and the passport
22 application with the fingerprints of Khalfan Khamis Mohamed
23 was found. What Mohamed Sultan told you was that the
24 transaction actually took place at the Al Noor Hotel in Dar es
25 Salaam, and in particular he identified the room, room 24
5419
1 within the Al Noor Hotel. Remember he said there was a
2 meeting and they were haggling back and forth about how much
3 money they had, and there was a knock on the door, and this
4 mysterious third person showed up with the rest of the money,
5 and just like the transaction involving the Nairobi bomb
6 truck, there was no paperwork. There was no contract.
7 Mohamed Sultan never got the rest of the paperwork. You may
8 remember Fabid Sadaalli was the hotel clerk, and one of the
9 things he identified was the guest register book, Government's
10 Exhibit 1457. If you look inside there, you see at the top
11 right, 24/7/98. You will see, if we can go ahead and
12 highlight that example, there is an entry for Sheik Ahmed, and
13 you see at the far right, room 24, just like Mr. Sultan
14 described for you. Fabid Sadaalli identified this photograph,
15 Government's Exhibit 123, as Sheik Ahmed, and he remembered
16 Sheik Ahmed getting visited by Ahmed Khalfan Galani. As I
17 mentioned earlier, there was Julius Kisingo, the welder who
18 did the work, and he identified the picture of Swedan as the
19 person who asked him to do the welding. If you look at
20 Exhibit 1178A on the screen, that is an overhead view of the
21 diagram of the back of the truck that Julius Kisingo described
22 for you. You remember how he took the frame and he described
23 the two sides that he built along the side of the wall. He
24 described the metal shack that we saw, Government's Exhibit
25 1366, that went along the side of the wall. What he said was,
5420
1 the person he identified as Swedan told him that he wanted
2 Kisingo to make these frames in the back for fish and that
3 Mr. Kisingo remembered seeing a spot where a refrigerator unit
4 of the truck had been but the unit was no longer there but he
5 could tell that it was once a refrigerator truck. The other
6 thing Julius Kisingo described for you was a large battery
7 frame that he was asked to make. That is Government's Exhibit
8 1178B.
9 One thing to bear in mind, if we can put up on the
10 left side Government's Exhibit 1178A and if we could rotate
11 it. During his interview with the FBI, Khalfan Khamis Mohamed
12 walks one of the FBI agents through a diagram as it was being
13 described by Khalfan Khamis as the back of the truck. Khalfan
14 Khamis Mohamed described the diagram on the right, 1054, as an
15 accurate diagram. If you compare it to the diagram of Julius
16 Kisingo, you can see, one of the things Julius Kisingo told
17 you about the holes in the back of the truck, they were marked
18 before he was asked to do any work and he drilled the holes
19 where he was told to do so. You will see that Khalfan Khamis
20 Mohamed agreed with the agents in that diagram that the
21 batteries that were used, no doubt the batteries used to
22 detonate the bomb, were in the back of the truck, and there
23 was wiring, which of course explained the holes in the back of
24 the truck, that had to go all the way up to the cab so the
25 suicide driver could detonate the bomb.
5421
1 Just like what the forensic evidence told you about
2 the bomb truck in Nairobi, the forensic evidence told you the
3 same thing about the bomb truck in Dar es Salaam. The right
4 front chassis, which had the number 4H0, identified as a part
5 from the Nissan Atlas. You had just like the bomb truck in
6 Nairobi, the bomb truck in Dar es Salaam, Government's Exhibit
7 11. Mr. Suby was the expert connected with the Nissan
8 company. Then you had the tire rim, Government's Exhibit 1119
9 that we have before you here, which Agent West also described
10 as consistent with part of the bomb truck. That is the bomb
11 truck that Khalfan Khamis Mohamed and the others loaded the
12 components, that Khalfan Khamis Mohamed got in on the morning
13 of August 7 with Ahmed, the suicide bomber. That is the bomb
14 truck that delivered the bomb that murdered 11 people at the
15 embassy in Dar es Salaam on the morning of August 7.
16 What Khalfan Khamis Mohamed described to Agent
17 Perkins was that when they got the components of the bomb, he
18 and the others used a grinder, and he identified a photograph
19 of it, and it was found during a search that was introduced to
20 you by way of stipulation, Government's Exhibit 1440, this
21 piece of machinery that was used to grind the TNT. Ladies and
22 gentlemen, we don't have a picture of Khalfan Khamis Mohamed
23 and the others grinding the TNT and putting together the
24 components of the bomb. That is something you are going to
25 have to picture. You picture Khalfan Khamis Mohamed and
5422
1 Mustafa Fadhl and the others, with Mustafa Fadhl's children
2 somewhere in the house, grinding the TNT, putting together the
3 components of what they know is going to be a massive bomb,
4 that they know is planned to be delivered at the doorstep of a
5 building filled with people, and who knows how many people
6 around that building. That's what went on in 213 Ilala, the
7 house that Khalfan Khamis Mohamed rented in the summer of
8 1998.
9 One of the other things that Khalfan Khamis Mohamed
10 described was that they used these cylinder tanks, and you
11 know from some of the items that were obtained from the crime
12 scene that fragments of cylinder tanks were found, and there
13 are a couple of representative samples. Government's Exhibit
14 1132, you can see some wood, it's actually jarred in, very,
15 very heavy pieces. Khalfan Khamis Mohamed described that they
16 used a number of these, and you heard from Kathleen Lundee,
17 the metallurgist who did some metallurgy analysis, using the
18 ICP process, and she was able to determine, based on a
19 chemical position, and you see the chart there, she could
20 determine that there were at least 19 different cylinders used
21 in the back of the truck. Again, there is no video of the
22 bombing, but imagine these flying around the vicinity on the
23 morning of August 7.
24 Next we move to July 28. On July 28, Khalfan Khamis
25 Mohamed gets a Yemeni visa for his passport. Look at
5423
1 Government's Exhibit 1451. There you see Khalfan Khamis
2 Mohamed's photo at the top of the application, and he doesn't
3 apply for it in his own name but Zahran Nassor Maulid, the
4 same name as the passport application found in 15 Amani.
5 There you see additional information and he puts down his
6 profession as businessman.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5424
1 MR. KARAS: (Continuing) July 27 through July 30, we
2 pull up Government Exhibit 594-27, and 594 is the minutes used
3 on the satellite phone that we talked about yesterday, and
4 between the 27th and 30th of July you see down there at the
5 bottom, 27th through the 29th, there are eight calls to a
6 number 994, which is the country code for Azerbaijan, the
7 country we talked about yesterday -- at the top of this map
8 here, just north of Iran -- and then you see the local number
9 there is 6880488. That is the number that you are going to
10 see called on the eve of the bombing and the morning of the
11 bombing. And from that number, ladies and gentlemen, there
12 are records from Azerbaijan that are going to show an
13 operator-assisted call to The Grapevine in London, the place
14 where the Scotland Yard officers found one piece, one page of
15 the claim of responsibility about a month after the bombing.
16 At the bottom of that page, you see a telephone call
17 from the satellite phone on July 29th, 1998 to that number
18 2084411, and the 4411 number is one of the three numbers that
19 belongs to Khalid al Fawwaz. Then if we go to Government
20 Exhibit 593, these are some of the records from O'Gara
21 Satellite Networks where Ziyad Khalil, the person who
22 purchases the minutes, you see on July 30th, the day after the
23 telephone call goes from the satellite phone to Khalid al
24 Fawwaz, he's in such a rush he takes an old minutes order, he
25 scratches out April 13th, he puts July 30th.
5425
1 And you may remember that Marilyn Morelli, the person
2 from O'Gara Satellite Networks, says the one thing she
3 remembered about Khalid was when he was purchasing minutes, he
4 was always in a rush. Normally, it would take a day or two,
5 but he wanted it that day.
6 And you see the telephone call, the satellite phone,
7 the Jihad phone we talked about yesterday, they know they're
8 going to be busy the next few days, so they're going to get
9 stocked up on minutes. They call Khalid al Fawwaz. He calls
10 his man in the United States. They get 400 more minutes
11 purchased on the satellite phone, which you see on the next
12 page of the records in Government Exhibit 593. And there you
13 see the add minutes transaction order and you see the date at
14 the top there, 7/30/98.
15 July 31st, the very next day, if we take a look at
16 Government Exhibit 901, this is the passport that the
17 defendant Mohamed Al-'Owhali used. And if we go ahead and
18 rotate this and focus, you see an exit from Pakistan on 31
19 July, 1998.
20 Now, what Mohamed Al-'Owhali told Agent Gaudin was
21 that when he was in Afghanistan, when he returned from Yemen
22 after getting his fake passport, he made a video, a video that
23 was supposed to celebrate his martyrdom in the operation that
24 they expected to carry out a few months later. And in that
25 video Mohamed Al-'Owhali gave the name of the organization
5426
1 that was going to claim credit for this bombing after it took
2 place.
3 And you'll see, and we'll go through and compare the
4 wording, but the wording of the organization that Mohamed
5 Al-'Owhali gave to Agent Gaudin matches almost verbatim with
6 the name of the organization that al Qaeda sent the claims of
7 responsibility through to London. Months before the bombing,
8 they even know the fictitious name of the organization they
9 are going to use to claim credit for the bombing to advertise
10 what they had done.
11 Now we get to August 1st. August 1st at the Hilltop
12 Hotel. If we take a look at Government Exhibit 518, this is
13 the registry book for the Hilltop Hotel in Nairobi, and what's
14 being displayed for you on the screen are the two sides or the
15 two pages that make up the entry for August 1st, 1998.
16 What's being magnified for you is an entry on August
17 1st, and Abubakar Khalfan, Box 15577, and it says D, looks
18 like SA, Dar es Salaam, Tanzania, and on the next line,
19 another businessman. Abubakar Khalfan is Ahmed Khalfan
20 Ghailani.
21 There's a passport he gets, a Tanzania passport in
22 the name that's very similar to that. And P.O. Box 1577 you
23 may remember is the same P.O. Box that those telephone records
24 for that mobile phone 328848 that we looked at just a few
25 minutes ago, the telephone records that are found in 15 Amani,
5427
1 the place which Amina Rashid says Ahmed was living during the
2 summer of 1998.
3 With respect to the defendant Odeh, the defendant
4 Odeh tells the FBI that on August 1 he runs into Saleh and
5 Fahad and that there is conversation where Saleh is actually
6 yelling at Odeh to get his passport which Odeh says he doesn't
7 have. And there's a meeting later on that night where there
8 is discussion about giving Odeh an expired Yemeni passport,
9 and they agree they're going to get a visa to go with that
10 passport on August 2nd.
11 Then there's another meeting between Odeh and Saleh
12 alone where Saleh told Odeh that the others were leaving that
13 day and that he, Odeh, had to get his affairs in order. The
14 other thing that Odeh said to the FBI was that Mustafa told
15 him that he, Mustafa, and two others were ordered to leave,
16 that something big was going to happen.
17 Let's stop for a moment and consider what has
18 happened regarding what the defendant Odeh has admitted to the
19 FBI and then what the other evidence shows.
20 By the 1st of August, defendant Odeh, according to
21 what he admitted to the FBI, knows about Bin Laden's fatwahs.
22 He's had meetings with Saleh and Mustafa where they discuss
23 these fatwahs about how Bin Laden has a new plan.
24 There are meetings with Mustafa and Saleh, according
25 to what Odeh is willing to admit to the FBI, where the group
5428
1 is told to leave Kenya for a number of different reasons are
2 given, and that Odeh is supposed to go and see Bin Laden.
3 Then, on August 1, as we just went through, he's
4 supposed to get a passport, and others are leaving and there's
5 a big operation.
6 Now, the other evidence shows you that by August 1,
7 Odeh is still a fully sworn member of al Qaeda, fully paid
8 member of al Qaeda; that he's been a member of al Qaeda since
9 1992; that he's been part of the East Africa cell of al Qaeda
10 since 1993, 1994; that he's fully trained in explosives, and
11 that by the time he leaves his house in Witu and goes to
12 Mombasa on August 1st. And he does not go back to Witu, he's
13 left behind some sketches in his house, Government Exhibit
14 704-2, I think it is, or P2, those two sketches that Agent
15 Leadbetter found in Odeh's house in Witu.
16 We'll talk more about these sketches later on, ladies
17 and gentlemen, but I submit to you that those sketches are
18 independent physical evidence that will establish for you what
19 Odeh's role was in this bombing -- technical advisor with the
20 others that carried out the bombing.
21 August 2nd. August 2nd is the day, according to what
22 Mohamed Al-'Owhali told Agent Gaudin, that he gets to
23 Nairobi -- remember, he got there a day later than he was
24 supposed to, so he told Agent Gaudin that he missed a meeting
25 in Mombasa and he said that he gets to Nairobi and he goes to
5429
1 the Ramada Hotel and he gets in contact with the person he had
2 been in touch with who told him to wait and that somebody
3 would come to pick him up.
4 And what Mohamed Al-'Owhali told Agent Gaudin was the
5 person who came to pick him up was Harun, and he identified
6 Harun's picture from the video of the ferry accident. And on
7 August 2, Harun took Al-'Owhali to what he knew to be Harun's
8 house and that's where Al-'Owhali would stay until the day of
9 the bombing.
10 Now, what the defendant Odeh told the FBI that he did
11 on August 2nd was he was ordered to get his affairs in order,
12 that he got a phone call from the person that he identified as
13 Fahad, it was an angry phone call, wanting to know where Odeh
14 was and telling him, Odeh, that Saleh wanted to see Odeh. So
15 Odeh went to try to find Saleh in Mombasa but was unable to do
16 so. Saleh was gone.
17 The other thing that happens on August 2nd is the
18 first group of people involved in the bombing leave. If we
19 take a look at Government Exhibit 541A, you see there that is
20 a ticket for Pakistani International Airways, PIA, Flight 744,
21 and it's a ticket for Sheik Ahmed Salim Swedan, the person
22 pictured in Government Exhibit 123, the person who bought the
23 two bomb trucks for Nairobi and Dar es Salaam. And you see,
24 by the way, the departure is on 2 August and they go to
25 Karachi, which is in Pakistan. It's not on the map but it's
5430
1 in Pakistan.
2 Government Exhibit 541F, a ticket that's purchased on
3 August 1, you see on the top right, a ticket for Pakistani
4 International Airways, Flight 744, on 2 August for El Baji,
5 which is one of the aliases for Mustafa Fadhil. He's the
6 person who approached Khalfan Khamis Mohamed about doing the
7 Jihad job. He's the person Khalid that carried out the new
8 policy that Wadih El Hage brought back from Bin Laden in 1997.
9 He leaves. He doesn't leave alone. Government Exhibit 541H
10 is a ticket for Anas, his son, and 541I is a ticket for Yusr,
11 his daughter, and there's also a ticket for his wife.
12 August 3rd. This is the day, according to what the
13 defendant Al-'Owhali told Agent Gaudin, that he had meeting
14 with Saleh and Saleh told Al-'Owhali that there were going to
15 be two bombings, one in Nairobi and one in Dar es Salaam on
16 the morning of August 7th, and he said somewhere between 10:30
17 and 11.
18 And they reviewed photographs of the embassy and they
19 reviewed drawings of the embassy, and what I remind you of is
20 what Kherchtou told you about what Abu Mohamed al Amriki and
21 what Anas were doing in Nairobi in 1983 when Anas al Liby had
22 a camera 500 meters away from the embassy where they were
23 developing photos.
24 And it was on August 3rd, according to what
25 Al-'Owhali told Agent Gaudin, that he got his specific
5431
1 mission. He was to use a gun to get the bar up to get the
2 bomb truck as close as possible to the embassy. He was
3 supposed to use stun grenades to scatter people out of the
4 area, and that Mohamed Al-'Owhali would carry with him keys to
5 the back of the truck. If for some reason, the detonator in
6 the front part of the truck didn't work, then he would use the
7 keys to open up the back part of the truck, throw those
8 grenades and try to detonate the bomb.
9 Al-'Owhali described for Agent Gaudin what the bomb
10 truck looked like. It's was a beige truck with two wheels in
11 front and four wheels in back, which you know is actually
12 correct from what Mr. Miyagi told you about what the Dyna
13 was -- that was the NGDT and it had to deal with how many
14 tires there were in the back; that the bomb was supposed to be
15 made of TNT with aluminum powder in wooden boxes and
16 everything was connected with wires to batteries in the back
17 of the truck.
18 The other thing that Saleh told Mohamed Al-'Owhali
19 was that there was going to be the bombing in Dar es Salaam,
20 and he mentioned there was only going to be one person in that
21 truck and said that the person was going to be known to
22 Al-'Owhali as Ahmed the German. Just so we're clear, that's a
23 different Ahmed than Ahmed the Egyptian Mohamed Odeh talked
24 about with the FBI. And what Al-'Owhali told Agent Gaudin was
25 he knew the person who was going to carry out the bombing in
5432
1 Dar es Salaam and that he was sorry he missed the meeting
2 earlier in the week because he wanted to say good-bye.
3 Saleh told Al-'Owhali that the truck in Dar es Salaam
4 was going to be a refrigerator truck. Saleh bragged about how
5 they got the bomb together in Dar es Salaam in about ten days.
6 The bomb in Dar es Salaam was going to involve oxygen tanks
7 for fragmentation and that they changed the location of the
8 delivery of the bomb truck to take it further away from the
9 French embassy.
10 And you may recall that Ambassador Lange talked about
11 after the bomb, he got through the fence and he met the French
12 ambassador and he went across the street to the French Embassy
13 briefly before he went back to the American Embassy.
14 On August 3rd, according to what Odeh told the FBI,
15 Fahad picked up Odeh and they went to the immigration office,
16 and from there Fahad took care of the visa for the passport
17 that Odeh had received and then Fahad and Odeh went to a
18 travel agency to buy tickets. And then Fahad told Odeh to go
19 to Nairobi and to meet up with the rest of the group at the
20 Hilltop Hotel.
21 And what Odeh told the FBI was that they in fact did
22 that through the night and arrived at the Hilltop Hotel the
23 morning of August 4th. And if we look at Government Exhibit
24 518, which again is the registry for the Hilltop Hotel which
25 we looked at just a few minutes ago that had the entry for
5433
1 Ahmed, Khalfan Ghailani, you see at the very top there, if we
2 pull up both parts of the page and magnify it, an entry for
3 Abdel Basit, which we'll see in a minute is the name on the
4 passport that the defendant Odeh used when he fled Nairobi the
5 night before the bombing. So, on August 4th, Odeh, the Kenyan
6 resident, checks in to a Kenyan hotel using a fake name, Abdel
7 Basit, and he too is a businessman.
8 Now, according to what Odeh told the FBI, he took a
9 nap in the room that he was given, Room 102B, and that he
10 later ran into Saleh and Harun, who were leaving the hotel;
11 that Saleh gave Odeh a razor and a pair of pants and told Odeh
12 to use the razor to shave his beard so he wouldn't look like a
13 Muslim. Odeh also said that on the 4th, Harun and Saleh told
14 Odeh they were going to go out to do a small job, and we'll
15 talk about how that was described later on.
16 And then Odeh ran into Abdel Rahman, the person who
17 was one of his trainers at the Sadeek Camp that we talked
18 about yesterday, where Odeh was taught how much and what type
19 of explosive to use to do an operation. He told the FBI he
20 ran into his former bomb instructor, Abdel Rahman, and that
21 Abdel Rahman mentioned that he had been at the hotel for the
22 preceding two months.
23 At some point that day, Saleh and Harun returned and
24 Odeh mentioned to the FBI that Harun drove a white pickup
25 truck. And Odeh remembers Saleh reading a magazine and saying
5434
1 a prayer, indicating that he was worried, and that Odeh said
2 he stayed the night the Saleh's room.
3 Meanwhile, on August 4th, what Al-'Owhali told Agent
4 Gaudin on August 4th he did was that he and Saleh went to the
5 American Embassy, and Saleh showed Al-'Owhali where the bomb
6 was supposed to go. And Al-'Owhali and Saleh had a discussion
7 about where Al-'Owhali thought the bomb should go, and at the
8 end of the day Saleh told Al-'Owhali what the plan was.
9 Meanwhile, in Dar es Salaam, if you take a look at
10 Government Exhibit 1459E, and this is a summary chart of phone
11 calls that are made from that mobile phone, 328848, the mobile
12 phone, the records of which were found in 15 Amani, and if you
13 look at the 4th of August at 7:16 p.m., you see a call for two
14 minutes to a number in Egypt. And remember from the razor and
15 from the stipulation I talked about, the suicide driver of the
16 bomb truck in Dar es Salaam is from Egypt. So by the 4th of
17 August, the suicide driver is in place in Dar es Salaam.
18 Meanwhile, halfway around the world in London, on
19 August 4th, if you take a look at Government Exhibit 1558-P,
20 there is dated the document, and we can look at the fax
21 header, The Grapevine, and there it has the number for The
22 Grapevine, 3727415, August 4, 1998. And if we take a look at
23 the translation -- you may remember we read you this
24 document -- this is the document where EIJ, the partner in the
25 joint venture with al Qaeda, is talking about how angry it is
5435
1 about what it perceives happened to some of its members.
2 And in the fourth paragraph, EIJ and it says the
3 information office of the Jihad group in London writes, "we
4 would like to inform the Americans that, in short, their
5 message has been received and that they should read carefully
6 the reply that will, with God's help, be written in the
7 language that they understand."
8 Now, this document is found in the office at 1A
9 Beethoven Street in London, and the Scotland Yard officers who
10 did the search in that place for a number of days, you may
11 remember this is the place where they also found the claims of
12 responsibility, a copy of the claims of responsibility for the
13 bombings.
14 They also found an envelope with an address label for
15 Khalid al Fawwaz, the al Qaeda person in Nairobi who Wadih El
16 Hage replaced, who then goes to London and is involved in
17 getting the satellite phone and in getting the various fatwahs
18 and declarations of Jihad published and disseminated.
19 And it's an office that you know by way of
20 stipulation was leased by that third person in London I
21 mentioned to you, Adel Abdel Bary, and it was earlier leased
22 by Khalid al Fawwaz. Take a look at the leases, you will see
23 they sort of rotate who is actually the person renting the
24 Unit 5 at 1A Beethoven Street.
25 Now we move to August 5th. Al-'Owhali told Agent
5436
1 Gaudin that on August 5th, Abdel Rahman shows up to do the
2 final wiring for the bombing. And the other thing you know
3 from Government Exhibit 340, which is a summary chart based on
4 telephone records for calls from 43 Runda Estates -- and
5 remember, this is the bomb factory, and the telephone there
6 Harun asked the landlord, Ms. Ratemo, to get special
7 permission to make international calls.
8 On August 5th at 11:11 p.m., there is a
9 six-and-a-half-minute call from Khalid Salim, the alias that
10 Al-'Owhali is using, to a number in Yemen, and we'll just call
11 this the 0578 number from here on out. Al-'Owhali told Agent
12 Gaudin that he did speak to his friend Ahmed and he called
13 from Runda Estates.
14 Now, on August 5, Odeh tells the FBI that what he did
15 that day was he woke up and he saw Harun eating breakfast with
16 a Saleh, and he mentioned that they were wearing the same
17 clothing that they had been wearing the night before; and that
18 Odeh had a conversation with Saleh where he asked him, Saleh,
19 to pick up some socks and a shirt for Odeh. Saleh told Odeh
20 to wait for Abdel Rahman and that Odeh mentioned that on that
21 day he took a walk along Moi Avenue and he bought some items,
22 a shirt and some books and that, once again, Saleh and Harun
23 stayed out all night.
24 By the way, you may remember there was a latent
25 fingerprint lift in the Room 107B that was identified as
5437
1 belonging to the defendant Odeh.
2 Now, Khalfan Khamis Mohamed described for Agent
3 Perkins a situation in Dar es Salaam where the bomb truck got
4 stuck in the sand and that he and Ahmed, the suicide driver,
5 had to work to try to get the truck unstuck from the sand and
6 they were able to do that.
7 Khalfan Khamis Mohamed said to Agent Perkins that
8 Ahmed, the driver, had that mobile phone and he remembered
9 Ahmed, the driver, using that phone to call the brothers. And
10 if we take a look at 1459E, which is again the summary chart
11 for calls from that mobile phone, what you will see is on
12 August 5th, three telephone calls to the Hilltop hotel, the
13 same hotel that the registry records show you that Ahmed
14 Khalfan Ghailani checked into on August 1 and the same hotel
15 that the hotel records show that Abdel Basit, the alias for
16 Odeh, checked into.
17 August 6th. What Odeh said to the FBI about August
18 6th is he remembers that Ahmed from Tanzania and Fahad showed
19 up and that they were staying at another hotel; that Saleh and
20 Harun returned to the Hilltop again dressed in the same
21 clothes as they had been wearing the night before; that Saleh
22 was in a good mood, and that on August 6 Saleh told Odeh that
23 he spoke with the people in Kandahar -- remember we looked at
24 the map yesterday and Kandahar is a province in Afghanistan --
25 he spoke to the people in Kandahar and that the people had
5438
1 been evacuated because they were expecting retaliation from
2 the United States Navy.
3 Odeh said that on that day he went shopping again and
4 got a towel and he got a bag, and that he went back to the
5 hotel and he met up with Fahad and that Fahad told Odeh that
6 Saleh and Abdel Rahman had left Kenya and that he and Fahad
7 had dinner, got their shoes shined, and went to the airport.
8 So now we have another five or six days since we last
9 sort of went through what it is that Odeh admitted to and what
10 the evidence showed you. Since before August 1, Odeh admitted
11 to the FBI he knew about the fatwahs, he knew everybody had
12 been ordered to leave, and what he learned, according to what
13 he told the FBI, between the 1st and the 6th is that he was
14 given orders to leave, in fact, I mentioned it earlier, but
15 everyone had to be out by August 6th; that he met up with
16 Saleh and Harun at the Hilltop Hotel; that he saw his bomb
17 trainer, Abdel Rahman; that he knew that Saleh and Harun said
18 that they were going to do a small job on one of those days;
19 that Saleh was happy after being up all night for the second
20 consecutive night; that the United States was expected to
21 retaliate against the people in Kandahar, Afghanistan; and
22 that everybody else was leaving that night.
23 Now, according to what Al-'Owhali told the FBI, what
24 he did on August 6th, he once again made some telephone calls.
25 And if we look at 340, Government Exhibit 340, this is the
5439
1 summary chart, you see two calls again from 43 Runda Estates,
2 the bomb factory, to the 0578 number, 12:37 for a little over
3 four and a half minutes, and 8:44 in the evening, a little
4 over 7 minutes.
5 Meanwhile, on August 6th, if you take a look at the
6 records for the satellite phone, there is a call on August 6th
7 from the satellite phone to -- there are two calls to that
8 688048 number in Baku, Azerbaijan, the same call that's going
9 to call The Grapevine the day of bombings -- The Grapevine,
10 the place that received the claims of responsibility.
11 We know by way of stipulation that Hamdan Khalif
12 Allah, the name of the person who was the suicide driver in
13 Dar es Salaam, calls his family in Egypt and asks everybody to
14 be by the phone the next day. And you know from Government
15 Exhibit 1459E that the mobile phone is used to call a number
16 in Egypt on August 6th.
17 And you see down there at, I think it's the next page
18 at the top, you see two calls to Egypt on August 6th. August
19 6th is the day that Khalfan Khamis Mohamed gets his visa to go
20 to South Africa. You will see that in the passport. And on
21 August 6th, on Kenya Airways Flight 310, Saleh using the name
22 Abdallah Ahmed Abdallah, Ahmed Khalfan using the name Abu Bakr
23 Khalfan Ahmed, fly out of Nairobi on a Kenya Airways flight to
24 Karachi, and that Fahad and the defendant Odeh fly out on
25 Pakistani International Airways Flight 746 from Nairobi to
5440
1 Karachi, Pakistan.
2 THE COURT: We will take our midmorning break at this
3 point.
4 (Recess)
5 (Jury present)
6 THE COURT: We're turning down the air conditioning.
7 I know it's cold.
8 MR. KARAS: Thank you, your Honor.
9 We left off before the break with the defendant Odeh
10 and Fahad and others flying from Nairobi on the evening of
11 August 6th into the morning of August 7th, heading to Pakistan
12 on the escape path to Afghanistan.
13 Now, ladies and gentlemen, we get to August 7th,
14 1998, the eighth anniversary of when President Bush sent the
15 American troops to Saudi Arabia. And the first thing that you
16 know that happens on the morning of August 7th is the claims
17 of responsibility are sent as early as 4:45 in the morning,
18 and you saw the fax header to the claim of responsibility that
19 was found at The Grapevine in London and the three other
20 claims of responsibility, the three other pages between 4:53
21 a.m. and 4:56 a.m. on the morning of August 7th, 1998, and
22 those claims of responsibility to be later released so that
23 the members of this conspiracy could take credit for the
24 bombings in Nairobi and Dar es Salaam.
25 From here on out, the times I'm going to mention to
5441
1 you are in East African time in Nairobi and Dar es Salaam.
2 The next event that happens is at approximately 5:30
3 in the morning, and that is when the defendant Odeh, in his
4 attempt to escape and go to Afghanistan, is caught at the
5 airport in Karachi, Pakistan.
6 At 8:54 in the morning, Ahmed the German, the suicide
7 driver in Dar es Salaam, calls his family in Egypt to say he's
8 leaving this life. Government Exhibit 1459E, you see the call
9 being placed from that mobile phone in Dar es Salaam.
10 At 9:14, at 9:23 a.m., the satellite phone, the
11 satellite phone in Afghanistan, calls that number 688048 in
12 Baku Azerbaijan. From that number, later on there will be a
13 call to London to the mobile phone of Ibrahim Eidarous and a
14 call to The Grapevine in London.
15 At 9:19 a.m., the defendant Al-'Owhali calls his
16 colleague Ahmed in Yemen at the 0578 number. There you see it
17 in the chart, Government Exhibit 340.
18 At 9:29 a.m., just ten minutes later, the mobile
19 phone in Dar es Salaam calls from Dar es Salaam into Mombasa.
20 That is the last telephone call that is made from the phone
21 that Khalfan Khamis Mohamed told Agent Perkins he last saw in
22 the hand of Ahmed, the suicide driver, when he went off to do
23 the bombing.
24 At 9:45 a.m., the bomb truck leaves 43 Runda Estates
25 in Nairobi, led by Harun driving a white pickup truck. Just
5442
1 15 minutes later, the bomb truck leaves 213 Ilala, the bomb
2 factory in Dar es Salaam. In this bomb truck is Ahmed, the
3 suicide driver, and the defendant, Khalfan Khamis Mohamed.
4 Now, soon after getting into the truck and riding in
5 it for a brief time, Khalfan Khamis Mohamed gets out of the
6 truck, goes back to the bomb factory, and he begins his
7 prayers for Ahmed, the suicide driver.
8 Just before 10:30 in Nairobi, Frank Pressley, the
9 communications officer, is speaking with his friend Michelle
10 O'Connor and Jay Bartley Jr. Pininah Muhoho is waiting for
11 the bus outside the embassy in Nairobi, and in Dar es Salaam,
12 Edward Rutahesherwa, the security guard, is being replaced for
13 his midmorning break. Both ambassadors in Nairobi and Dar es
14 Salaam are attending meetings.
15 At just a few minutes before 10:35 in the morning,
16 Al-'Owhali arrives with Azzam in the bomb truck in the back
17 parking lot of the American Embassy in Nairobi. He has the
18 gun in his jacket and he has the four grenades he's going to
19 use in an effort to get the bomb truck as close to the embassy
20 as possible. Harun, who had been leading the bomb truck in
21 his white pickup truck, stopped outside at a roundabout or
22 circle near the embassy.
23 Inside the parking lot, Al-'Owhali gets out of the
24 truck. Forgetting his gun in the jacket, he uses those stun
25 grenades to try to scare the guards to open the gate so the
5443
1 truck can get as close to the embassy as soon as possible.
2 His partner, Azzam, begins shooting outside the window of the
3 driver's side of the truck.
4 After Al-'Owhali throws his flash grenades, he comes
5 to the decision that there's no point in his dying. His dying
6 will not be a martyrdom operation, it will be suicide. So he
7 runs.
8 At 10:35, ladies and gentlemen, at 10:35, Azzam
9 detonated the bomb and, in a flash, he killed hundreds, he
10 wounded thousands, but just before he detonated that bomb,
11 Al-'Owhali was able to turn the corner, and in so doing he was
12 able to do something that 213 other people did not do that
13 morning, and that's survive the bomb that he helped deliver,
14 leaving behind chaos, death, injury and horror.
15 Ambassador Bushnell described for you the two
16 different times she thought she was going to die that morning.
17 George Mimba, the information systems manager at the embassy
18 who had just been speaking to Julian Bartley just before the
19 bomb went off, described how there was smoke and he couldn't
20 see and he crawled out to an open space and he was going to
21 jump so his father could find his body.
22 To buy so he ten I don't see, the commercial
23 specialist, he said, "I thought it was the end of the world."
24 And before the dust could even begin to settle in Nairobi, at
25 10:39 a.m. in Dar es Salaam, Tobias Otieno is attending a
5444
1 meeting and he sees the lightening flash and then the loud and
2 long boom that she described for you.
3 Liz Slater was in a meeting with Cynthia Kimble, and
4 she told you that it just went pitch black. "There was a
5 feeling, a strange smell, a kind of oily, gritty feeling in
6 the air. The walls were on top of me. I could see the sky."
7 Cynthia Kimble was screaming and people were trying to figure
8 out what happened.
9 Meanwhile, back in Nairobi, the defendant Al-'Owhali,
10 having survived his own bomb attack, went to the M.P. Shah
11 Hospital in Nairobi to be treated for his wounds, to be
12 treated in the same hospital that would treat the others that
13 he injured.
14 From there, and before he leaves -- remember, he
15 leaves behind the bullets and the keys and then Al-'Owhali
16 goes to the Ramada Hotel, where he convinces the clerk to let
17 him check in and he gets some more clothing.
18 Meanwhile, back in Dar es Salaam, while the rescue
19 efforts are under way and people like Liz Slater are making
20 their way out of the embassy, seeing that poor man whose skin
21 had been ripped off, so much pain she said she wished he would
22 die, Khalfan Khamis Mohamed is back at the bomb factory,
23 searching for news on the radio and the television to see if
24 the bomb happened. And when he learns that it did, he was
25 happy. He was happy that the bomb had gone off, and what he
5445
1 left behind, ladies and gentlemen, what he was happy about you
2 see in Government Exhibit 1103D.
3 While the rescue efforts were going on, Harun, who
4 had volunteered to stay behind to clean up the evidence that
5 would link the group to the bombing, he cleans up the bomb
6 factory in Nairobi. And Khalfan Khamis Mohamed, who had
7 agreed to stay behind, he begins the clean up efforts in Dar
8 es Salaam. He cleans the house and he attempts to rid the
9 house of some of the instruments that were used to build the
10 bomb, telling his nephew, "Clean this machine because it has
11 been used for unclean things."
12 The Baku phone, the 6888048 phone, is in touch with
13 Ibrahim Eidarous in London and is sending the facsimiles to
14 The Grapevine to be picked up by Ibrahim Eidarous and Adel
15 Abdel Bary. All of that happened on August 7th, 1998.
16 On August 8th and August 9th, 1998, the defendant
17 Al-'Owhali decides he needs to leave Nairobi, but because he
18 was supposed to die in the bombing, he doesn't have his
19 passport, he doesn't have any identification and he is without
20 money. So he calls the number in Yemen, the 0578 number, as
21 seen in Government Exhibit 342. He calls both on the 8th and
22 the 9th, several times to Yemen.
23 And while he's doing this, while Al-'Owhali is
24 looking out for himself, while he's attempting to escape the
25 damage and the horror that he has done, Samuel Nganga is
5446
1 trapped underneath the rubble of what used to be the Ufundi
2 House with a bone protruding out of his body, speaking to
3 Rose, a woman he was communicating with who was also trapped
4 underneath the rubble. And during these two days, during
5 those two days that Al-'Owhali tried to run, Samuel Nganga
6 waited and waited to be rescued. He was, but Rose wasn't.
7 Khalfan Khamis Mohamed, he's going to flee, too. He
8 takes his passport in the other name and he runs to South
9 Africa, leaving behind death and destruction, and he goes to
10 South Africa and he applies for political asylum, saying that
11 he left Tanzania because of problems.
12 And while Khalfan Khamis Mohamed does that, while he
13 runs in from Tanzania, the other members of this conspiracy
14 send out the claims of responsibility, the claims of
15 responsibility that announce that the Islamic army for the
16 liberation of the holy places hereby takes credit for the
17 bombing in Nairobi and the bombing in Dar es Salaam.
18 And the bombing in Nairobi is called the Holy Ka'ba
19 operation, one of the reasons that Bin Laden said that
20 American civilians had to be killed. The bombing in Dar es
21 Salaam is called the Al-Aqsa Mosque operation, the other
22 reason that Bin Laden said that Americans had to be killed.
23 And the claim of responsibility announced to the world is that
24 two men from Saudi Arabia carried out the Nairobi bombing and
25 that one man from Egypt carried out the Dar es Salaam bombing,
5447
1 which you know from the evidence is exactly what happened.
2 Now, on August 10 to the 12th, Al-'Owhali is still
3 attempting to flee, still trying to reach out to that number
4 in Yemen to get money and to get assistance. And at the same
5 time, the group in Afghanistan, the al Qaeda headquarters,
6 using that satellite phone, is doing what it can to rescue
7 Al-'Owhali. In Government Exhibit 343, you see telephone
8 calls from the satellite phone to the 0578 number. Those are
9 the only calls that are made to that 0578 number from the
10 satellite phone in its entire existence.
11 August 14th, that is the day that Harun flees Kenya,
12 having finished up his clean-up effort, he leaves Kenya and he
13 goes to the Comoros, and from there he follows the al Qaeda
14 escape route to Pakistan and then into Afghanistan. And you
15 know that by way of stipulation.
16 And what Harun does is he fulfills his mission, just
17 like Khalfan Khamis Mohamed tried to do, by cleaning up any
18 evidence connecting the group to the bombing. And he takes
19 with him clothes that he had and he takes with him
20 Al-'Owhali's fake passport, the Yemen passport, Government
21 Exhibit 901.
22 He takes with him the passport for Azzam, Jihad Ali,
23 Government Exhibit 902. He takes his own passport, his own
24 Comoros passport. He has the fake vaccination card for
25 Al-'Owhali, Government Exhibit 9304, and he has Al-'Owhali's
5448
1 ticket, his Gulf Air ticket that got him into Nairobi at the
2 beginning of August, 1998. And he has Azzam's Saudi driver's
3 license.
4 All items that he took from Nairobi that he couldn't
5 bring with him to Pakistan and Afghanistan, left behind, and
6 he took them because Al-'Owhali and Azzam were supposed to die
7 in the bombing.
8
9 (Continued on next page)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5449
1 MR. KARAS: (Continuing) But unaware that Al-'Owhali
2 had survived, he took these items and he brought them home.
3 Ladies and gentlemen, the clothing that Harun had with him,
4 the boots, they tested positive for explosive residue, another
5 refrain that you see throughout this case. He also had what
6 the FBI agents found to be some bomb manuals that had in
7 English written the word explosive, what appeared to be timing
8 devices. Harun also left behind that white pickup truck, the
9 white pickup truck that had a rear view mirror on it that had
10 Harun's fingerprints, the white pickup truck that had an
11 insurance card for Mohamed Fahad Ally Salim, whose
12 fingerprints, ladies and gentlemen, are on that grinder, that
13 machine of death that they used to construct the bomb in Dar
14 es Salaam.
15 August 20, 13 days after the bombs go off and after
16 hundreds are dead, the FBI goes to interview the defendant
17 Wadih El Hage. Wadih El Hage was asked if he knew anybody in
18 Kenya who was associated with Bin Laden. He said no. Wadih
19 El Hage said that Bin Laden would not have been involved in
20 the bombing because he's a humanitarian, and he would have
21 done better intelligence to deal with the fact that Nairobi
22 was a congested city. Harun, according to Wadih El Hage, was
23 just somebody who worked for Tawhil, or Ahmed Sheik Adam, and
24 he was somebody who was good at getting information about
25 Somalia. But according to Wadih El Hage, he didn't know
5450
1 whether or not Harun worked for Bin Laden. Wadih El Hage said
2 he didn't know anybody in the United States who worked for Bin
3 Laden, and he claims that the only reason he knew about Bin
4 Laden's secret meetings was a ledger that he saw when he
5 worked for Bin Laden in Khartoum. Wadih El Hage was asked
6 about whether or not he knew the defendant Odeh, the defendant
7 Odeh that the evidence tells you was in the East African cell,
8 that the evidence, including tape recorded conversations,
9 shows that El Hage and Odeh communicated with each other.
10 Wadih El Hage said that he didn't personally know him, that he
11 just recognized his picture from the news. Once again, Wadih
12 El Hage denied any recent contacts with Bin Laden, with the
13 chief Al Qaeda military commander Abu Hafs.
14 September 10, 1998, Ali Mohamed, the person known as
15 Abu Mohamed al Amriki, who provided the surveillance training
16 and came to Nairobi in December 1993. Ali Mohamed testified
17 before the grand jury, and you know by way of stipulation that
18 there is a portion of the transcript of that testimony, and
19 Ali Mohamed lied to protect the conspiracy. Ali Mohamed lied
20 by saying that the only training he had ever done was against
21 the Russians, never admitting the training he had done to help
22 others learn how to do surveillance of targets.
23 Six days later, the defendant Wadih El Hage again
24 testifies before the grand jury here in New York, a little
25 over a month after the bombings have taken place, and once
5451
1 again Wadih El Hage chose Bin Laden over America, denying
2 recent contacts with Bin Laden, denying contacts with other Al
3 Qaeda members and associates, such as Ihab Ali, such as Ali
4 Mohamed, and of course Abu Hafs and Abu Ubaidah, and he did
5 this, ladies and gentlemen, for the same reason he lied to the
6 grand jury in 1997. He did it as his contribution to the
7 conspiracy, to protect the conspiracy from discovery by
8 American government officials. He did it so the conspiracy
9 could survive another day and carry on the mission that the
10 conspirators had agreed they would achieve. In so doing,
11 ladies and gentlemen, Wadih El Hage didn't share in the
12 tragedies of the embassy bombings, he merely added to it.
13 That's the chronology. That's the chronology of what
14 the evidence tells you from beginning to end that this
15 conspiracy involved, from back in Afghanistan in the late
16 1980's, up here to New York, September 16, 1998.
17 Now what I would like to do, ladies and gentlemen, is
18 to talk to you about the indictment. First some general
19 comments about the indictment. The indictment contains four
20 conspiracy counts, as I briefly mentioned yesterday. All four
21 defendants are included in the first two conspiracy counts and
22 the fourth conspiracy count. Defendants Odeh, Al-'Owhali, and
23 Khalfan Khamis Mohamed are in the third conspiracy count. We
24 will go through each one of these. There are then substantive
25 counts relating to the bombings in Nairobi and Dar es Salaam.
5452
1 Just so we are clear, the defendant El Hage is not
2 included in any of the substantive counts that relate to the
3 embassy bombings. The defendants Odeh and Al-'Owhali are only
4 included in the counts related to the Nairobi bombing and the
5 defendant Khalfan Khamis Mohamed is only included in the
6 counts that relate to the Dar es Salaam bombing. We will go
7 through this again as we go through these counts.
8 Finally, the indictment contains numerous perjury
9 counts that only include the defendant Wadih El Hage. Let's
10 talk for a moment about the conspiracy counts. There are four
11 conspiracy counts, as I mentioned. The first one that
12 includes all four defendants is a conspiracy to murder US
13 nationals. The second is a conspiracy to murder United States
14 government officers and employees. This count also charges
15 all four defendants. The third conspiracy, which, as I
16 mentioned, only includes Odeh, Al-'Owhali and Khalfan Khamis
17 Mohamed, charges conspiracy to use weapons of mass destruction
18 against United States nationals. And the fourth conspiracy
19 count is a conspiracy to destroy United States government
20 property and buildings.
21 At the end of the closing statements by all the
22 lawyers, ladies and gentlemen, Judge Sand will instruct you on
23 the law, and it is those instructions that you should follow.
24 But briefly, a conspiracy is simply an illegal agreement
25 between two or more people to break the law. To prove a
5453
1 conspiracy count, the government must show you beyond a
2 reasonable doubt the agreement to violate the law, each
3 defendant's membership and participation in that agreement,
4 and an overt act, something that was done by somebody in the
5 conspiracy in furtherance of the conspiracy. A conspiracy is
6 different than a substantive crime. The goal of the
7 conspiracy need not be achieved.
8 With that brief background, let's talk about the
9 first count, conspiracy to murder United States nationals.
10 The first thing is whether or not there was such a conspiracy
11 in this case. In going through the chronology we have covered
12 a lot of the evidence that lays out for you the existence of
13 the conspiracy involving these defendants and others to murder
14 nationals of the United States. As I mentioned to you
15 earlier, there is not a videotape of a meeting where there was
16 a contract signed where everybody says this is what we are
17 going to do. Remember, this is a secret conspiracy. The way
18 you learn about what the conspiracy's goals are, how it is
19 that conspiracies are carried out, are by the actions of the
20 people involved in the conspiracy.
21 One other thing that I think is very important to
22 note about conspiracy. Membership in Al Qaeda by way of
23 swearing bayat is not a requirement for guilt of conspiracy.
24 Membership by bayat in Al Qaeda is also not by itself
25 membership in the conspiracy that is charged in this case.
5454
1 The defendants Al-'Owhali and Khalfan Khamis Mohamed, there is
2 no evidence that they swore bayat to Al Qaeda. The evidence
3 is, however, that they joined in a conspiracy with others,
4 including some who swore allegiance to Al Qaeda, as part of
5 the conspiracy to murder United States nationals.
6 What is the evidence that there was a conspiracy to
7 murder United States nationals? There is the testimony of
8 Jamal al-Fadl, who told you as far back as when the American
9 military forces arrived in the Saudi gulf, right after Al
10 Qaeda got to the Sudan in 1992, 1993, Al Qaeda targeting the
11 United States. Jamal al-Fadl told you that they targeted the
12 United States when American forces were sent to Somalia.
13 Jamal al-Fadl told you that even as of 1996 he said that Al
14 Qaeda was targeting the United States even to the point that
15 they might target American embassies. And he told you about
16 some of the prominent members that were part of this idea, of
17 this conspiracy, including Usama Bin Laden, including Abu
18 Hafs, Abu Ubaidah, Abu Hajer, defendant Wadih El Hage.
19 The witness Kherchtou told you about how as far back
20 as 1992 that Al Qaeda viewed the United States as the enemy of
21 Islam. Kherchtou told you that he understood in 1993 that Al
22 Qaeda was targeting the United States because of the operation
23 in Somalia, and he mentioned some of the people who figured
24 prominently in this growing conspiracy. He mentioned Abu
25 Hafs, he mentioned Saleh, he mentioned Harun, and one of the
5455
1 people he mentioned who was in Somalia, who was a member of Al
2 Qaeda, was the defendant Odeh, as far back as 1993.
3 You have evidence of the existence of this conspiracy
4 to murder US nationals from the numerous Bin Laden statements
5 that we went through. Al-Fadl told you about the private
6 statements to Al Qaeda, but you have seen some of the public
7 statements: The August 1996 declaration of jihad, the March
8 1997 CNN interview, of course the February 1998 fatwah, and
9 the May 1998 ABC News interview.
10 You know that there was a conspiracy to murder US
11 nationals because of the way that the members of the
12 conspiracy responded to the presence of the Americans in
13 Somalia, that Abu Hafs went there, that Saleh went there, that
14 Harun went there, that Kherchtou helped facilitate the efforts
15 of some others who went into Somalia. The defendant Wadih El
16 Hage regarding the Stingers and the transportation of the five
17 people that we talked about yesterday. All of those actions,
18 as I said, reflect what the mind set was, reflected that the
19 common goal of the conspiracy was to attack nationals of the
20 United States. And, of course, the carrying out of the
21 embassy bombings. Yes, they are substantive crimes. They are
22 concrete acts. But they also reflect, again, the agreement of
23 people to pursue a common goal, to kill nationals of the
24 United States, again, regardless of membership in Al Qaeda.
25 The question is membership in the conspiracy.
5456
1 The defendant Al-'Owhali told Agent Gaudin that he
2 was trained by Al Qaeda camps, that he asked Usama Bin Laden
3 for a mission, that he was sent to Africa to carry out attacks
4 on an American target. Khalfan Khamis Mohamed, not a sworn
5 member of Al Qaeda but trained at camps in Afghanistan, worked
6 with people like Mustafa Fadhl, another prominent member of
7 this conspiracy.
8 You have the claims of responsibility as evidence of
9 the existence of the conspiracy, the claims of responsibility
10 that go through Baku, Azerbaijan, to numbers called by the
11 satellite phone to headquarters in Afghanistan, to the people
12 in London, where Khalid al Fawwaz is there to help disseminate
13 the claims of the conspiracy, an act in furtherance of the
14 conspiracy, because as I mentioned, one of the things that Al
15 Qaeda did was to try to publicize its activities as a method
16 of terrorizing people and as a method of recruitment.
17 What about membership in this conspiracy, in
18 conspiracy to murder people simply because they were United
19 States nationals? In addition to the defendants, and we will
20 talk about the defendants, the evidence overwhelmingly shows
21 that Usama Bin Laden was a member of this conspiracy. He's
22 the leader of Al Qaeda. He is somebody to set the agenda for
23 Al Qaeda and for others to target the United States. You saw
24 the reasons, the various reasons he gave why the United States
25 neat needed to be targeted, why American military officers
5457
1 needed to be killed, American civilians needed to be killed.
2 He is the person who lays out the goals of the conspiracy.
3 Harun is a member of this conspiracy. Harun is somebody who
4 went to Somalia in Mogadishu where the American forces were,
5 and he told Kherchtou about what it is that they tried to do.
6 Harun is the person who worked as Wadih El Hage's deputy,
7 somebody who was the communications officer, who went through
8 all those efforts to try to figure out how the group was going
9 to deal with the response to the cooperation of Abu Fadhl al
10 Makkee with the Americans. Harun carried out the bombing in
11 Nairobi. Harun rented the bomb factory. Harun cleaned out
12 the bomb factory and brought all of those items back down to
13 his house in the Comoros before he fled to the Al Qaeda
14 headquarters in Afghanistan.
15 Mustafa Fadhl is in this conspiracy. Mustafa Fadhl
16 is another person who was part of the East African cell of Al
17 Qaeda. Mustafa Fadhl carries out the new policy that Wadih El
18 Hage brought back with him on his visit to Bin Laden in
19 February of 1997. Mustafa Fadhl is the person who brings
20 Khalfan Khamis Mohamed into the jihad in March of 1998.
21 Mustafa Fadhl helps rent the bomb factory, and Mustafa Fadhl
22 flees with his wife and children to Afghanistan just five days
23 before the bombing.
24 Saleh is a member of this conspiracy. Saleh is one
25 of the people who went into Mogadishu, Somalia, to attack the
5458
1 Americans. Saleh is one of the people who left on August 6,
2 1998, the night before the bombing, the same night that the
3 defendant Odeh fled before the bombing.
4 I mention those people, ladies and gentlemen, because
5 when you see how these four people, among many others -- and
6 we have been through many names and I don't mean to limit the
7 membership list to this conspiracy just to the names that I
8 have listed for you. But when you see how just those four
9 people worked with these defendants as part of the conspiracy,
10 it becomes clear beyond a reasonable doubt the membership of
11 these four defendants in the conspiracies in which they are
12 charged, including Count 1.
13 Wadih El Hage. As we talked about yesterday, Wadih
14 El Hage is the person who facilitates the activities of Al
15 Qaeda. Every organization needs a facilitator, somebody who
16 takes care of the logistics. Wadih El Hage's participation in
17 this conspiracy dates back to when Wadih El Hage was in the
18 Sudan, when Al Qaeda was targeting the United States in
19 Somalia and had issued private fatwahs at meetings that El
20 Hage attended, saying that Americans had to be attacked
21 because of their presence in the gulf. He is in charge of the
22 Al Qaeda payroll. He makes efforts to get Stingers
23 transported from Pakistan to Afghanistan. He transports some
24 people from Sudan to Kenya at a time when the Americans are
25 targeting the Americans in Somalia.
5459
1 And then you know that his membership in the
2 conspiracy took a new form when El Hage was transferred,
3 effectively, from Sudan to Kenya in 1994, when he replaced
4 Khalid al Fawwaz as one of the leaders of the Nairobi cell of
5 Al Qaeda. That is a critical moment, ladies and gentlemen,
6 because you learned that El Hage replaced Khalid al Fawwaz
7 from Kherchtou. But there is other evidence that shows that
8 El Hage was the replacement. This was not a career move that
9 Wadih El Hage made because he was tired of Sudan. This wasn't
10 a coincidence that soon after Khalid al Fawwaz left to take
11 the heat off the group somehow Wadih El Hage decided that
12 instead of being involved in bicycles and sesame seeds in
13 Sudan, that he wanted to now start this charitable
14 organization, this German-run charitable organization in
15 Nairobi. That wasn't coincidence, that wasn't happenstance.
16 That was part of the conspiracy. Nairobi was a base. It was
17 a critical base of operations for Al Qaeda both before El Hage
18 arrived with respect to Somalia and then afterwards, as you
19 see from the new policy and of course the carrying out of the
20 embassy bombings. El Hage filled that role. He was the one
21 who came in to work with the cell, to work with people like
22 Mustafa Fadhl, to work with people like Harun, to work with
23 people like the defendant Odeh. And you saw the evidence of
24 him working with precisely those people. He lived with Harun
25 and he worked with Harun, and he had telephone conversations
5460
1 with Odeh, and of course there is evidence of other meetings.
2 He met with Abu Hafs, according to what Kherchtou told you.
3 He met with Abu Ubaidah, the military commander, people he
4 would lie about to protect later when the American government
5 would ask about these Al Qaeda members.
6 El Hage traveled to see Bin Laden in 1997 twice, well
7 after the war against America was public, and brought back
8 with him a policy that would militarize the cell in Somalia
9 dealing with Ethiopia, but the same cell once militarized,
10 after it was militarized, that would carry out the bombings.
11 And when his house was searched and when he was approached by
12 the Americans, he did exactly what Khalid al Fawwaz did. He
13 left Kenya to take the heat off of the Al Qaeda cell in Kenya.
14 And then when he testified before the grand jury he made plain
15 his membership in this conspiracy by lying to protect the
16 conspiracy, by protecting the conspirators from detection by
17 the United States so that they could carry on with the
18 activities that were part and parcel of the Al Qaeda
19 operation, both in East Africa and elsewhere, including in
20 Afghanistan.
21 You know that Wadih El Hage helped to get fake
22 passports for other people in Al Qaeda. We went through the
23 telephone conversations and we saw the letters, the coded
24 letters and the coded communications where El Hage and Harun
25 worked to get these passports, the life blood that we talked
5461
1 about on behalf of Al Qaeda. Fake passports that if done
2 right, help people like the defendant like Al-'Owhali to get
3 out of countries or, if not done right, leave it to defendants
4 like Odeh to get caught and unable to escape after
5 participating in terrorist activities.
6 You saw the coded letters that El Hage had. You saw
7 the coded references that he had in his address book, and we
8 will talk about some of them in connection with the perjury
9 counts. But Khalid al Fawwaz is not listed as Khalid al
10 Fawwaz, 94 Dewsbury Road, London, England, it is 94 Dewsbury
11 Road, Arlington, Texas. We will see some of those address
12 book references in his address book, with P.O. Boxes in
13 Khobar, Saudi Arabia, for a person that he knows lives in the
14 United States. There are any number of coded references for
15 Ali Mohamed, the surveillance trainer and the person who
16 himself had lied to protect the conspiracy in September of
17 1998. All of that is evidence of El Hage's participation in
18 the secret conspiracy, in the conspiracy that targets and at
19 the same time fears the United States, that requires people to
20 facilitate, to carry out the logistics, and, yes, if
21 necessary, requires the members of the conspiracy to lie to
22 investigating officials who are looking to uncover both the
23 membership and the existence of the conspiracy.
24 We talked about this briefly yesterday, but the fact
25 that Wadih El Hage engages in gem transactions and the fact
5462
1 that he may have been involved in the purchase of bicycles is
2 not to the exclusion of his participation in Al Qaeda. That's
3 exactly what Usama Bin Laden does. When he was in Sudan he
4 made roads, had a transportation business. He had other types
5 of business. But, as we talked about, it is precisely that
6 business that is part of the conspiracy. It finances the
7 activities and it provides a cover.
8 what I submit to you, ladies and gentlemen, is that
9 Wadih El Hage was to the gem business what Bin Laden was to
10 the sesame seed business, what the defendant Odeh was to the
11 fishing business. Those were things they did maybe to make
12 money, but those were things that Al Qaeda set them up in to
13 protect the conspiracy and to advance the conspiracy. What
14 motivates Wadih El Hage, what motivates Bin Laden, what
15 motivates Mohamed Sadeek Odeh is not the success of their
16 business but the pursuit of the common goal, to defeat the
17 number one enemy, the United States.
18 Again as we talked about, membership by way of bayat
19 is nowhere going to be found in the judge's instructions, so
20 that the question of whether or not Wadih El Hage took the
21 bayat is not a question that has to be answered. The question
22 is whether or not he was a member of the conspiracy.
23 Remember, the bayat is something that is very private. It
24 involves a handful of people. The evidence of membership in
25 the conspiracy does not come from the bayat, it comes from who
5463
1 people trusted to work with and to speak with and to be
2 around. The witness Kherchtou explained it as such. He said
3 it was obvious. You can't say to a member who is working with
4 you in the same company are you from this company or not. I
5 mean, the question you can talk about all the issues about Al
6 Qaeda among us, discussing whatever. Kherchtou and the others
7 knew that they could trust Wadih El Hage. Kherchtou and the
8 others knew that they could have meetings with Wadih El Hage.
9 They could talk about Al Qaeda business with Wadih El Hage.
10 He was trusted in the operation of jihad. And not because he
11 wore a T-shirt that said I took bayat, but because everybody
12 knew who they could trust and who they couldn't. Remember the
13 story he told you about Abu Hafs, the military commander? Abu
14 Hafs' military command told Kherchtou and Wadih El Hage he
15 trusted them to take care of his travel arrangements that
16 involved his alias and fake passport, but he didn't even trust
17 Abu Mohamed al Amriki, the person that the group trusted to
18 train others in surveillance. That type of operational
19 connection, that type of association, ladies and gentlemen, is
20 powerful evidence of a person's membership in a secret
21 conspiracy like Al Qaeda.
22 The defendant Odeh. The evidence clearly establishes
23 that the defendant Odeh was an Al Qaeda member as far back as
24 1992. The witness Kherchtou told you that he knew that Odeh
25 was a member of Al Qaeda. And, by the way, not because he was
5464
1 there for the bayat. You know from what Odeh himself admitted
2 to the FBI that he was a member of Al Qaeda, that he was
3 trained in Al Qaeda's camps, in ideas like explosives,
4 learning how to calculate how much and what type of explosives
5 to carry out an operation. And Kherchtou told you that the
6 defendant Odeh, who he knew as Marwan -- again, the aliases
7 and the codes are all evidence of the existence of the secret
8 conspiracy -- was a member of Al Qaeda who went to Somalia.
9 Remember, he described some of the other members that went to
10 Somalia, such as Harun and Saleh. You know that Odeh himself
11 admitted to the FBI that he went to Somalia because he was
12 ordered to by Usama Bin Laden, and that he was there to train
13 a group that was ideologically aligned with Al Qaeda.
14 Ideologically aligned, which Odeh told the FBI meant that the
15 group was concerned that the United Nations was going to take
16 away their power, the same group that Odeh told the FBI got
17 into a fire fight with the United Nations. And Odeh was in
18 Somalia and met with Abu Hafs right after Abu Hafs had come to
19 an understanding with Farid, the warlord in Somalia, to work
20 with the group to attack Americans, which lines up exactly
21 with what the witness Jamal al-Fadl told you about Abu Hafs
22 going to Somalia and trying to work with the local groups, the
23 local tribes there.
24 Like many prominent members in Al Qaeda, the
25 defendant Odeh was given a business. He told the FBI that Abu
5465
1 Hafs, the military commander, set him up in that business.
2 But it was an Al Qaeda business, the fishing business that he
3 had in Kenya. Remember the testimony of Mr. Mjitta, the
4 person who worked in the fisheries industry? He remembered
5 the name of the boat, al Mandera, which is actually one of the
6 names in the records that you see in Wadih El Hage's files,
7 and that they were offloading at night, which was unusual and
8 forbidden, and that the defendant Odeh had a license to move
9 but not to catch fish. Again, a perfect cover to carry out
10 jihad operations.
11 The intercepted telephone calls show that the
12 defendant Odeh was in touch with El Hage immediately after El
13 Hage returned from his trip to see Bin Laden in February 1997.
14 And there was discussion in that conversation about how
15 Mustafa Fadhl, the other member in this conspiracy we talked
16 about, was going to come up and meet with El Hage. And then
17 you see the documents thereafter where they implement the new
18 policy to militarize the cell. And you saw the document that
19 we talked about yesterday and this morning, about how this was
20 not part of a relief organization, this was part of the jihad.
21 One of the other things that Odeh mentioned to the
22 FBI was that, like the others in Al Qaeda, Odeh had heard
23 discussion about Abu Fadhl al Makkee cooperating. The
24 evidence makes crystal clear, ladies and gentlemen, including
25 even from what Odeh was willing to admit to the FBI, that Odeh
5466
1 was well aware of the fatwahs that Bin Laden had issued,
2 calling on people to kill American citizens. Here the bayat
3 and Odeh's membership in Al Qaeda, while again not alone
4 sufficient to establish membership in the conspiracy, is
5 powerful evidence of membership in the conspiracy, being a
6 member of the group that is at the core of this conspiracy,
7 and being in particular a member of the cell of the group that
8 is at the core of this conspiracy, the same cell, the
9 implementers that Harun described, that carried out the
10 bombings, that the bombings that Odeh participated in.
11 We will discuss at greater length Odeh's
12 participation, but just remember what it was that Odeh was
13 willing to admit to the FBI. Even he admitted to the FBI that
14 there were several meetings as far back as March 1998, with
15 Saleh, with Ahmed the Egyptian, with Harun, about how there
16 had been a change in policy, about how people have to leave.
17 As time gets closer to the bombing, what Odeh claims to the
18 FBI is, he is told there is a big operation, that there is an
19 unprecedented order to get out of Kenya by August 6, and then
20 he is told that the Americans are expected to retaliate on
21 August 6. What does he do? He goes to Nairobi, he checks
22 into the hotel that you saw calls to, that he saw other people
23 who were involved in the conspiracy check into, and he checks
24 in in a fake name. He shaves his beard, he takes his fake
25 passport, and he goes by way of the others to Afghanistan.
5467
1 THE COURT: Mr. Karas, can you raise the microphone?
2 MR. KARAS: Is that better?
3 Something we haven't talked about yet and we will
4 talk about more, remember the clothing that Odeh was caught
5 with in Pakistan that tested positive for TNT and PETN. And
6 remember those diagrams that you saw earlier that we will
7 discuss later on. All of that is not only evidence of Odeh's
8 guilt of participating in the Nairobi bombing but is also
9 powerful evidence, very powerful evidence of his membership,
10 of his participation in the conspiracy to kill Americans.
11 Because you know that the operation against the American
12 Embassy in Nairobi was part of the Bin Laden, Harun, Saleh,
13 Fadl conspiracy, and others, to kill Americans.
14 The defendant Al-'Owhali. What is the evidence of
15 his membership in the conspiracy to kill Americans? He
16 admitted it. He told Agent Gaudin that he was involved in the
17 bombings. He told him exactly what he did. And he told him
18 why it was that the American Embassy was targeted, why it was
19 that he wanted Americans to be killed, what it is that it
20 would take for him and others to stop killing Americans. He
21 admitted that he was trained in Afghanistan at the Al Qaeda
22 camps, that he asked Bin Laden for the mission.
23 What is very interesting is what he said to Agent
24 Gaudin about his decision not to swear bayat to Al Qaeda, and
25 it is this that underscores the point that I was making about
5468
1 the bayat. Remember what Jamal al-Fadl said, if you take the
2 bayat you have to do whatever they tell you as long as it is
3 Islamically correct as they define it. That means if you are
4 a doctor and they ask you to wash the car, you wash the car.
5 Mohamed Al-'Owhali told Agent Gaudin he knew that if he took
6 the bayat he could be given any role in Al Qaeda, including an
7 administrative role. But what he wanted to do was carry out
8 military operations. He wanted to kill. He doesn't want to
9 enter the contract that will deny him the opportunity to do
10 what he wants to do. He doesn't want to wash cars, he wants
11 to deliver bombs.
12 Mohamed Al-'Owhali's membership, I submit to you, is
13 proven by the most significant overt acts in the conspiracy,
14 by making the video, by getting the fake passport, by
15 traveling to Nairobi and meeting the others, conducting the
16 last-minute surveillance of the embassy, and, yes, going in
17 the truck and throwing those flash grenades in an effort to
18 get the bomb truck closer to the embassy so that more
19 Americans can die.
20 Al-'Owhali specifically told Agent Gaudin -- by the
21 way, remember, he knew about the Dar es Salaam bombing ahead
22 of time as well. There is no question that Al-'Owhali knew
23 that the target was American and that it was the American
24 Embassy. He told Agent Gaudin that he believed it was part of
25 a bombing mission. One of the things that Al-'Owhali told
5469
1 Agent Gaudin was that the American Embassy was targeted
2 because the American Embassy in Nairobi covered the Sudan.
3 You may remember that Usama Bin Laden in the March 1997 CNN
4 interview talked about, he complained about the diplomatic
5 pressure that America put on Sudan, and one of the things he
6 specifically mentioned was that the Americans use their
7 embassy from Sudan and moved it to Nairobi. That's what
8 Al-'Owhali told Agent Gaudin was one of the reasons that the
9 American Embassy was hit.
10 The other thing Al-'Owhali told Agent Gaudin was they
11 wanted to strike targets outside the United States to weaken
12 the United States and then allow for attacks in the United
13 States, and that the reason for attacking the United States
14 was to get the Americans out of Saudi Arabia, to get the
15 United States to stop supporting the enemies of Islam, and to
16 get the United States to stop supporting the imposition of
17 Islamic law as he and others defined it.
18 The other piece that shows you the direct connection
19 between Al-'Owhali and the conspiracy is the connection
20 between the telephone calls that Al-'Owhali made to get out of
21 Nairobi and the telephone calls made from the satellite phone
22 that we talked about to the same number in Yemen, to rescue
23 Al-'Owhali. Al Qaeda is trying to get, not literally one of
24 his own because he didn't swear bayat, but one of the members
25 of the conspiracy back to the other members of the conspiracy,
5470
1 to safety, as they view it, in Afghanistan.
2 Khalfan Khamis Mohamed's membership in the
3 conspiracy. He also admitted it. He admitted he was trained
4 in Afghanistan as far back as 1994, and one of the people that
5 he told Agent Perkins that he met up with there was Fahad. He
6 received basic and advanced explosives training, and that was
7 corroborated by Khalfan Khamis Mohamed's friend Abdullah
8 Hamisi, who told you that he told him he got training, that it
9 was financed by Bin Laden and that it was focused on jihad.
10 The other thing that Khalfan Khamis Mohamed admitted
11 was that his views towards America were formed back in
12 Afghanistan when he received the training. Of course Khalfan
13 Khamis Mohamed admitted in detail his roles in the bombing of
14 the American Embassy in Dar es Salaam. He obtained the
15 Suzuki. He rented the house. He participated in the grinding
16 of the TNT. He described it in ways that are corroborated by
17 the physical evidence. The Suzuki purchase is corroborated by
18 other evidence, including the contract. The rental of the
19 bomb factory, 213 Ilala, is corroborated by the broker and by
20 the lease and by Hamed Muslim Salun. He was brought to the
21 house at 213 Ilala, and remember what he told him, my friends
22 are going to be leaving soon, and find some replacements and
23 make sure they look like them. One of his roles is to try to
24 make sure there is no trail of evidence that leads back to the
25 group. He cleaned 213 Ilala, or tried to. He tried to
5471
1 discard some of the evidence, and he fled, using a fake
2 passport.
3 Although Khalfan Khamis Mohamed claimed he had never
4 met Bin Laden or was a member of Al Qaeda, he acknowledged
5 that Bin Laden was, as he said, our leader in jihad. And he
6 told Agent Perkins about how he talked about Hussein, Mustafa
7 Fadhl, one of the other prominent members we talked about,
8 about Bin Laden, and about how Mustafa Fadhl said he had met
9 Bin Laden in Afghanistan and respected him. Khalfan Khamis
10 Mohamed knew that Bin Laden was against Americans, and Khalfan
11 Khamis Mohamed knew that the target of the bombing was the
12 American Embassy. In fact, Khalfan Khamis Mohamed told Agent
13 Perkins that he carried out the bombing because he thought it
14 was his obligation and duty to kill Americans. And he talked
15 about how the reason he felt this way was because of American
16 policy, and one of the things he mentioned was the American
17 presence in Saudi Arabia. He said that the first duty was to
18 kill the troops but that since that was a difficult duty to
19 carry out, the next duty would be to attack American
20 government facilities, which is precisely what he did.
21 One of the other things I mentioned about a
22 conspiracy is, there have to be overt acts in furtherance of
23 the conspiracy. It can't just be an agreement between two or
24 more people. Somebody has to do something to further the
25 conspiracy.
5472
1 The indictment, you will see, contains many, many
2 over acts, about five dozen overt acts that are alleged to
3 have been committed in furtherance of the conspiracy. The
4 evidence, I submit to you, establishes many, many other overt
5 acts were carried out. The overt acts discussed in the
6 indictment cover a wide range of conduct that we talked about
7 in going through the chronology: The use of businesses and
8 charity organizations as a cover for Al Qaeda activities. The
9 issuance of the fatwah, both publicly and privately, within Al
10 Qaeda and to others, by Bin Laden, by Abu Hajer, and some of
11 the other scholars within Al Qaeda, and you have seen evidence
12 of those. The accumulation or attempted accumulation of
13 weapons. For example, we talked about the efforts of Al Qaeda
14 to get nuclear weapons. The training and recruiting of Al
15 Qaeda. The overt acts specifically include the training of
16 the defendant Odeh, the training of the defendant Al-'Owhali,
17 and the training of the defendant Khalfan Khamis Mohamed. All
18 of the meetings and the various correspondence and the
19 telephone communications. The meetings involving Wadih El
20 Hage and Abu Ubaidah, the former military commander, Abu
21 Ubaidah and Abu Hafs, the current military commander. The
22 efforts to get the satellite phone. The coded letters between
23 Wadih El Hage and others in Al Qaeda, including Nawawi. The
24 dissemination of the new policy. And some of the telephone
25 conversations that you saw the transcripts of. The efforts
5473
1 aimed at Somalia. The fatwahs that were issued with respect
2 to Somalia. The evidence about the defendant Odeh and Harun
3 and Saleh and others going to Somalia while the Americans were
4 there as part of the peace-keeping mission. And of course the
5 many, many acts to carry out the embassy bombings. The rental
6 of the bomb factory, 43 Runda Estates in Nairobi. The
7 purchase of the bomb trucks in Nairobi and Dar es Salaam.
8 That was done, you remember, by the coconspirator Swedan. The
9 final preparations, the surveillance, the making of the flight
10 arrangements. The obtaining of fake passports. The bombings
11 themselves. The efforts to flee, including the telephone
12 calls to Yemen, and the flight to Pakistan, Afghanistan and
13 South Africa. And yes, the lies by Wadih El Hage in the grand
14 jury in 1997 and 1998, and the lies by Ali Mohamed in the
15 grand jury in 1998.
16 The second count charges conspiracy to murder
17 officers and employees of the United States government.
18 Largely, ladies and gentlemen, the evidence that we talked
19 about with respect to Count 1 relates to Count 2. Remember
20 al-Fadl and Kherchtou talked about targeting American military
21 personnel in the Saudi gulf and in Somalia, and of course the
22 Bin Laden statements make specific references to people in the
23 government, people who work at embassies, people who report
24 information to embassies, and the membership is the same.
25 Again, some of the common members -- Bin Laden, Harun, Mustafa
5474
1 Fadhl, and Saleh. And the membership to the conspiracy is the
2 same. The goals that were established by some of the leaders
3 in this conspiracy were as broad as every American national,
4 but they also included American employees and American
5 government facilities, to include military facilities and
6 military personnel. Same reasons we talked about earlier
7 about the defendant El Hage being somebody who worked in the
8 inner sanctum of Al Qaeda, who attended the meetings, who
9 facilitated, who moved to Nairobi, who carried out the policy
10 and lied to protect the policy, a conspiracy to kill American
11 employees. Same with the defendant Odeh. Defendant
12 Al-'Owhali, in addition to what we talked about earlier,
13 specifically mentioned that one of the reasons the American
14 Embassy in Nairobi was targeted was because the ambassador was
15 a woman. Their plans came down to even facts about the
16 ambassador, about one of the American government employees.
17 The other thing Al-'Owhali told Agent Gaudin was that
18 embassies have other government representatives, like
19 intelligence representatives. Khalfan Khamis Mohamed told
20 Agent Perkins, as I mentioned earlier, that while he thought
21 it was his duty to kill American soldiers, he thought if he
22 couldn't carry out that duty, his duty was to go after United
23 States government buildings, and we know that included the
24 embassy.
25 The overt acts in furtherance of the conspiracy, the
5475
1 same overt acts we talked about above -- all the coded
2 communications, the training, the weapons, the callings for
3 murder and the fatwahs. Remember that manual that we looked
4 at, the manual that was found in Manchester, that belonged to
5 the person Anas al Liby, with the camera on Moi Avenue, that
6 specifically said target embassies.
7 Count 3, which only relates to the defendants Odeh,
8 Al-'Owhali and Khalfan Khamis Mohamed. Conspiracy to use
9 weapons of mass destruction against United States nationals.
10 Well, the existence of the conspiracy, again, is the same
11 evidence. Remember here, of course, Al Qaeda trains people in
12 the use of bombs, specifically TNT, the explosive that was
13 used to carry out the bombings in East Africa, and the efforts
14 by Al Qaeda to obtain components of nuclear weapons, and
15 remember Bin Laden's endorsement of what he called the Islamic
16 nuclear bomb. This is an organization that while it trained
17 its people in assassination techniques, ladies and gentlemen,
18 the method they were going to use to carry out attacks against
19 their number one enemy was weapons of mass destruction. It
20 was bombs. And of course the evidence of membership in a
21 conspiracy and the overt acts is the same as we discussed
22 before.
23 That brings us to Count 4, conspiracy to destroy
24 buildings and property. Again, it's the same as above. Bin
25 Laden is calling and has been calling for attacks against
5476
1 American facilities, military facilities, specifically
2 mentioned embassies, in '97 and '98, and we talked about what
3 it is that Khalfan Khamis Mohamed and Mohamed Al-'Owhali
4 admitted to the FBI about. You may recall, of course, again
5 in addition to the Manchester manual, some of the documents we
6 saw in Ali Mohamed's computer about the surveillance of
7 buildings, about reports on buildings, that lines up with what
8 the witness Kherchtou told you about the training that he and
9 the others received about how to target buildings and other
10 stationary targets. This is also something that was
11 personalized. And of course we talked about the method they
12 would do that in was by the use of bombs.
13 THE COURT: We will break for lunch and we will
14 resume at 2:15.
15 (Luncheon recess)
16
17
18
19
20
21
22
23
24
25
5477
1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 (In open court; jury present)
4 THE COURT: Good afternoon. Mr. Karas, you may
5 continue.
6 MR. KARAS: Thank you, your Honor.
7 We left off with the conspiracy counts, the four
8 conspiracy counts, and as I mentioned to you earlier, the next
9 part of the indictment involves the substantive counts, the
10 counts that relate directly to the bombings of the embassies.
11 Yesterday I had mentioned that the number of counts
12 reflected the number of victims, and so Counts 5 through 284
13 are what are covered by the substantive counts. Again, I
14 remind you what I said earlier today: The defendant El Hage
15 is not charged in any of the substantive counts that relate to
16 the embassy bombings. The defendants Odeh and Al-'Owhali are
17 charged only in connection with the counts that deal with the
18 Nairobi bombing, and the defendant Khalfan Khamis Mohamed is
19 charged only with the counts that relate to the Dar es Salaam
20 bombing.
21 Now, before we go through the specific counts, all of
22 which feed off of the evidence that shows the participation of
23 the respective defendants for their participation in the
24 respective bombings, what I am going to do is I am going to
25 outline for you what the evidence is very briefly that there
5478
1 were bombings, but then, more particularly, what the evidence
2 shows that each defendant did to carry out and participate in
3 the bombings, and then once we go through that evidence, we
4 will go through some of the counts and talk about some of the
5 particular elements that are required to be proved. Then we
6 will finish up with the perjury counts.
7 Now, the evidence, ladies and gentlemen, that the
8 embassies were bombed is overwhelming. You heard from the
9 explosives experts. You saw the summary charts that showed
10 that TNT was used. You saw the evidence that told you about
11 the vehicle used that helped to deliver and transfer the TNT,
12 and you saw the evidence that showed how the TNT was made, how
13 the bomb was put together, and then you saw the evidence about
14 the trucks that were used to deliver the bombs. And you even
15 heard about the damage and you saw the photographs that showed
16 the damage that supported the conclusions that both embassies
17 were destroyed by a very large quantity of a high explosive.
18 Now, with respect to what the evidence shows
19 regarding each defendant: Let's begin with the defendant
20 Odeh. As I mentioned to you, what the evidence shows is that
21 the defendant Odeh served as a technical advisor and that that
22 is how it is he participated, how it is that he contributed to
23 the bombing of the American Embassy in Nairobi.
24 And the evidence that establishes Odeh's role comes
25 from his statement to Agent Anticev, the evidence regarding
5479
1 Odeh's flight from Kenya just the night before the bombing
2 with the others, the physical evidence found on Odeh when he
3 arrived and was caught in Pakistan to include his fake
4 passport and the Nike bag, the Nike bag that had some of the
5 clothing which tested positive for TNT and PETN, and finally,
6 other physical evidence that was found in Odeh's house and, in
7 particular, the tape letter that we talked about yesterday and
8 the diagrams.
9 Let's begin with Odeh's statement. We talked a
10 little bit this morning and yesterday in terms of the
11 chronological order about what it is that Odeh admitted to the
12 FBI agents. You may remember that what Odeh said was that he
13 was in Mombasa on a furniture business with his brother-in-law
14 when he ran into Saleh and that this was in March of 1998, and
15 that there was a meeting involving Saleh, involving Harun, and
16 Ahmed the Egyptian; that Mustafa was supposed to be there but
17 he was not, and that was, according to what Odeh admitted to
18 the agent, when Saleh said that he had come back from
19 Afghanistan and the people had to get their affairs in order
20 and to leave. Then Odeh said that in April there was another
21 meeting with Mustafa, where, among other things, they
22 discussed the February 1998 fatwah.
23 In June, as we talked about earlier, there's the
24 meeting with Ahmed the Egyptian, and there's the discussion
25 about Sheik Hassan and the other message from Bin Laden to
5480
1 join the fight and there was discussion about Odeh going to
2 see Bin Laden.
3 And then you know what it was that Odeh admitted to
4 the agents regarding what happened in August, the meetings in
5 Mombasa, getting the fake travel documents, getting the
6 tickets out of Africa with Fahad, learning that there was a
7 big operation about to take place, going to the hotel in
8 Nairobi and checking in in the name Abdel Basit, which you
9 saw, and that the hotel records verified, and the name that is
10 in the passport that Odeh was caught with in Pakistan,
11 Government Exhibit 526A, the Yemen passport in the name Abdel
12 Basit, and that before he left with the others, Odeh was told
13 that the Americans were expected to retaliate, the United
14 States Navy. That's just some of the chronology.
15 Now I would like to go in a little bit more detail
16 about some of the things that Odeh said, and what we've done
17 here is we have enlarged portions of the report that is in
18 evidence as Government Exhibit 6, the report of the statements
19 that Odeh gave to the FBI.
20 Now, ladies and gentlemen, what I submit to you as we
21 go through this statement is that what you are going to see is
22 Odeh tap dancing with the truth. He explicitly denies having
23 a role in the bombing, but he talks all around the bombing and
24 he talks all around the meetings that take place, the meetings
25 that he was willing to admit to the agent, the meetings with
5481
1 the other people who told him the things that preceded the
2 bombing. He's playing a tap dance with the truth and putting
3 it into the context of where he is at the time and where he
4 has been beforehand.
5 Remember, he is caught fleeing Kenya the night before
6 the bombing in Karachi at the gateway to Afghanistan and he's
7 caught with a fake passport, and he's caught on August 7th,
8 1998 and then he finds himself on August 15, 1998 back in
9 Kenya speaking to the American FBI and to Kenyan officials.
10 And what you are going to see Odeh do is give up as
11 much information as he thinks he can to convince the Americans
12 that he wasn't involved, to make his story sound credible, and
13 what I submit to you is, in the course of doing that, you will
14 see precisely how it is that he was involved in this bombing.
15 He borrows from the truth, but he doesn't give the
16 complete truth. And you may remember during the trial Mr.
17 Cohn asking the question of a witness about the best lies
18 being partly true. We will go through the statement and then
19 we will compare the statement and show you that, in
20 conjunction with the other evidence in this case, you know
21 beyond a reasonable doubt what it is that Odeh did that makes
22 him guilty of participating in these bombings.
23 Now, the first enlargement that we have here, which,
24 for your notes, is from page 13 of Government Exhibit 6, Odeh
25 talked to Mustafa about Bin Laden declaring war against
5482
1 American people in his last two fatwahs. They discuss if al
2 Qaeda was right in doing this. They were concerned if they
3 were ready to face such an enemy. Mustafa stated that the
4 mujahadeen in Sudan were against attacking U.S. targets, they
5 feared the U.S. was too powerful. Even al Qaeda in
6 Afghanistan was questioning Bin Laden, but they still wanted
7 to be ready to back up Bin Laden's fatwah. They still wanted
8 to back up Bin Laden's fatwah. They were not happy about Bin
9 Laden's first fatwah from one and a half years ago because Bin
10 Laden was all alone, but they don't say anything about the
11 second fatwah.
12 And what this statement right here tells you is that
13 Odeh has an explicit conversation with Mustafa. This again,
14 remember, this is what he admits to the agent. And the
15 discussion is not about whether or not it is improper or
16 incorrect or immoral to attack the Americans, the discussion
17 is whether or not al Qaeda is ready to take on this fight so
18 openly, so overtly. And you bear that in mind as you see Odeh
19 have additional meetings with the people who were part of this
20 plot.
21 The next enlargement is from page 11 of the report.
22 Odeh stated that three months prior to his leaving Kenya he
23 was told by Mustafa that Saleh got a message from Usama Bin
24 Laden that people in al Qaeda must get ready to travel soon.
25 Odeh assumed that it would also include his wife and child.
5483
1 He was told to get his travel documents in order. Later on,
2 Odeh left his home in Witu from Mombasa to ask Saleh the
3 details. Saleh told Odeh that he had to be out of Kenya by
4 August 6th, 1998.
5 Odeh stated that for all the time he had been a
6 member of al Qaeda, something that urgent had never happened
7 to him before. Odeh stated that he knew of the February 1998
8 Bin Laden fatwah calling for all Islamic groups to make a
9 front against the Americans.
10 Now, this --
11 THE COURT: Excuse me. Can you see the chart?
12 A JUROR: I can see.
13 MR. KARAS: Thank you, your Honor.
14 If anybody can't see anything just, please let me
15 know and we'll make sure it's visible.
16 What you see here, ladies and gentlemen, is what it
17 was we talked about earlier -- that Odeh has a meeting with
18 Mustafa and Saleh, and what he tells the FBI is that people
19 are supposed to get ready to travel soon. And then he tells
20 the FBI a little bit later that he is told -- and he's never
21 heard this before -- everybody in al Qaeda has to get out on
22 August 6th, 1998.
23 That's the story that Odeh gives to the FBI, and what
24 he says is that he thought he was going to be allowed to bring
25 his family with him and he says nothing else. And there's
5484
1 nothing else in there about this conversation, about any
2 inquiry as to why people were going to have to leave by
3 August, 1998. And this conversation about al Qaeda having to
4 leave takes place in the context of discussions regarding the
5 fatwah against Americans.
6 Here, Odeh is going to describe another message.
7 There was also a message, page 12, that Bin Laden had new
8 plans to fight and Odeh had to travel to confer with Bin
9 Laden. Odeh stated that during conversations with Mustafa and
10 Saleh, Mustafa stated he likes Kenya and would not do an
11 operation in Kenya, whereas Saleh disliked Kenya and wanted to
12 do an operation in Kenya.
13 Here are two things about this comment that Odeh
14 made. The first is there is an explanation being given here
15 that the reason that Odeh is going to have to travel to see
16 Bin Laden is because Bin Laden had new plans to fight. Again,
17 put this in the context of the other conversations where Odeh
18 and Mustafa are talking about the February 1998 fatwah, and
19 then a different part of his statement where he says that the
20 reason that people had to go to Afghanistan was because Bin
21 Laden wanted people to come back to Afghanistan.
22 It's a very vague explanation, and now the
23 explanation that is given is that Bin Laden has new plans to
24 fight and that Odeh has to travel to confer with Bin Laden
25 about these plans.
5485
1 MR. RICCO: Your Honor, I object. That is a
2 mischaracterization of that exhibit.
3 THE COURT: Well, the jury has the exhibit before it
4 and it's for the jurors to determine whether or not that is an
5 accurate or inaccurate characterization. It is a fair
6 argument which counsel is permitted to make.
7 MR. KARAS: Thank you, your Honor.
8 The other thing you know is that Odeh admits that
9 there is some discussion of some possibility of an operation
10 in Kenya, and you know that because he reported to the FBI
11 that Mustafa said that he likes Kenya and he wouldn't do an
12 operation there. And Saleh, according to what Odeh said to
13 the FBI, didn't like Kenya and he wanted to do an operation
14 there.
15 So Odeh, Mustafa and Saleh are talking about some
16 idea of an operation in Kenya, and what Odeh tells the FBI is
17 what Mustafa thinks and what Saleh thinks. This is from page
18 10, and now Odeh here is giving an explanation along the lines
19 of the chronology. Odeh stated that on August 1, 1998 Saleh
20 ordered him to leave and told him to be out of Kenya by August
21 6th, 1998.
22 Odeh asked Mustafa Fadhil why they were leaving.
23 Fadhil responded that there was an emergency and that there
24 may be a need for them to return to Afghanistan. Saleh gave
25 Odeh $1,000 to travel to Karachi, Pakistan and that someone
5486
1 would meet him there. Odeh traveled with Fahad to Karachi.
2 Odeh got caught by the Pakistani authorities and Fahad was
3 able to get through.
4 So what Odeh tells the FBI here is that Mustafa told
5 him five days before they leave that they have to be out by
6 August 6, and that when Odeh, according to what he told the
7 FBI, inquired of Mustafa as to why they were leaving, what
8 Mustafa Fadhil told them -- and remember, Mustafa is one of
9 the people in this conversation about operations -- responded
10 that there was an emergency and that there may be a need for
11 them to return to Afghanistan, and then he gives the
12 explanation about being given money and being told that they
13 will be met by somebody in Pakistan.
14 On page 11, Odeh then provided more detailed
15 information concerning his final days in Nairobi. Odeh
16 arrived in Nairobi from Mombasa on August 4, 1998 at 7:30
17 a.m., after traveling all night alone. He then proceeded to
18 the Hilltop Hotel, which was the prearranged meeting point.
19 Saleh and Abdel Rahman were already there. Odeh went
20 to sleep until noontime. When Odeh got up, he met Saleh and
21 Harun as they were leaving. They stated that they were going
22 out to do a small job and would be right back and for Odeh to
23 stay behind and rest. Odeh indicated that the small job did
24 not mean something trivial as shopping. And again, here you
25 see the dance with the truth.
5487
1 Abdel Rahman, you may remember, is the person that
2 Odeh, during the statement, said was his ohm trainer. And the
3 story that Odeh gives to the FBI is that he goes there by
4 himself, he checks in, and there is a discussion with Saleh
5 and Harun and all they want him to do is rest. And they tell
6 him they are going to go do a small job, and what Odeh told
7 the FBI is what it didn't mean was something trivial as
8 shopping. That's what it didn't mean.
9 We talked a little bit about this before. Page 23,
10 on August 6, 1998, while at the Hilltop Hotel, Saleh told Odeh
11 that the people in Kandahar have already relocated in order to
12 avoid retaliation from the Americans. Odeh asked Saleh what
13 he meant, to which Saleh referred to the possibility of the
14 U.S. Navy sending in war planes or missiles to retaliate.
15 Odeh stated that he did not pursue or follow up on
16 Saleh's statement. Remember, this is the Saleh that Odeh told
17 the FBI that was involved in this conversation about going
18 back to Afghanistan because Bin Laden wanted to have people
19 come back as far back as March 1998 to get their affairs in
20 order. And now, on August 6, what Odeh tells the FBI is he is
21 told by Saleh, he's told by Saleh that they are expecting the
22 United States to retaliate, but what Odeh claims to the agent
23 is he didn't ask why the United States was expected to
24 retaliate.
25 Ladies and gentlemen, as I mentioned to you earlier,
5488
1 the full report is in evidence, and you should read the full
2 report from beginning to end and go through precisely what it
3 is that Odeh states. And if you take exactly what it is that
4 even he was willing to admit, by the time Odeh gets on that
5 plane on the night of August 6, even he is willing to admit to
6 meetings with other people in al Qaeda as far back as March of
7 1998 and that there is discussion about the need to go to
8 Afghanistan and that eventually he learns from these people
9 that they're going to have to leave by a certain date, August
10 6; that there's a big job, a big operation that's going to
11 take place and that they are supposed to get a fake travel
12 document and that he's instructed to go to Nairobi to meet at
13 the Hilltop Hotel with others.
14 And you know that he checks in to that hotel -- a
15 Kenyan resident checks into that hotel -- using a fake
16 passport; that he meets up with his bomb instructor at that
17 hotel; that he knows that Saleh and Harun are going off to do
18 a small job, which he knows isn't to do shopping; that he
19 knows that they have to leave by August 6; that he knows the
20 Americans are supposed to retaliate, that that is what the
21 people in Kandahar are expecting; and then he gets on that
22 plane with Fahad, who you know from other evidence is involved
23 in the bombing in Dar es Salaam, and he goes on his way to
24 Afghanistan.
25 Now, ladies and gentlemen, common sense tells you
5489
1 that there is much more to that story. But we don't have to
2 go down and figure out exactly how much Odeh left out, because
3 when you look at the statement in conjunction with the other
4 physical evidence, you see precisely what it is that makes
5 Odeh guilty.
6 As I mentioned to you, the first thing to think about
7 is the flight: Why it is that he leaves; when it is that he
8 leaves, how it is that he leaves -- by going through the al
9 Qaeda play book and getting the fake passport, shaving the
10 beard, as they are trained to do so they don't draw suspicion,
11 and get back to Afghanistan.
12 But the other physical evidence, ladies and
13 gentlemen, is also compelling. Consider the clothes.
14 Remember the Nike bag that Odeh was found with when he got
15 caught in Pakistan, Government Exhibit 529. And you remember
16 Agent Whitworth described for you about how he went through
17 the bag and he picked out some of the items based on how it
18 was that they looked, that they were soiled, that they had an
19 odor. And I have in my hand here the shirt, which I think is
20 Government Exhibit 535C, the jeans, and then what has been
21 referred to as the sheet and so forth, 535B, 535C.
22 And Agent Whitworth picked out those items from among
23 the others that were in the bag and he also did a swabbing of
24 the bag and the handles of the bag. And he picked out a few
25 other items -- a green jacket, a towel, he picked out some
5490
1 glasses -- and he sent them back to the lab.
2 And Kelly Mount came here and told you that she
3 tested those items, all the items that Agent Whitworth picked
4 out, and the t-shirt and the sheet and the jeans tested
5 positive for TNT and PETN, two of the same types of explosives
6 that you know from the other evidence were used to make the
7 bomb that blew up the embassy in Nairobi. You may remember
8 the items that tested for TNT and PETN from the bomb factory
9 at 43 Runda Estates.
10 Now, not everything tested positive. The swabbings
11 of the bag, the swabbings from the handle of the bag, the
12 vacuuming of the bag and the handles of the bag tested
13 negative. The flight magazine tested negative. The green
14 jacket tested negative. And the question is, when did that
15 TNT and PETN get on the clothes and how did it get on the
16 clothes?
17 What I submit to you, ladies and gentlemen, is that
18 explosive residue got on Odeh's clothing before he got on that
19 plane on August 6th, 1998. And there's been a great deal of
20 discussion about, a great deal of inquiry about the
21 possibility of taint, about the possibility that when the
22 agents took the bag and put the clothes on the table at that
23 person's office at Kenyan CID headquarters, that there may
24 have been taint; there may have been taint in Pakistan, that
25 there may have been taint because people came back from the
5491
1 crime scene with TNT and PETN residue on their clothing and
2 that that's how those clothes tested positive.
3 What I submit to you, ladies and gentlemen, is that's
4 not what the evidence tells you. Because, remember, not
5 everything tested positive, not even the bag. So if the
6 agents are running around with TNT-laden hands and they're
7 holding the bag, the bag should test positive, the inside of
8 the bag should test positive, the other items that Agent
9 Whitworth tested should test positive or selected should test
10 positive, and they didn't. It was the articles of clothing,
11 precisely the kinds of things you would expect would get TNT
12 when you are working around TNT and PETN.
13 And remember what Dr. Lloyd said. Dr. Lloyd said
14 that Kelly Mount should have tested all of the other items in
15 the bag, and what you heard about the other day by a
16 stipulation is she did. And they tested negative.
17 And ask yourself about the wisdom of what Agent
18 Whitworth did, the basis upon which he selected these items.
19 Remember, they were soiled, they smelled, he didn't think they
20 had been washed in a while, and three of the five or six items
21 he picked out in fact tested positive for TNT and PETN. And
22 if the taint was as horrible as it was made out to be, then
23 more things should have tested positive, and they didn't.
24 And consider something else. There's been a great
25 deal of focus on the TNT. There was one positive swabbing
5492
1 from the crime scene in Nairobi for TNT, but there was not one
2 positive swabbing at the crime scene for PETN and it is TNT
3 and PETN that is found on Odeh's clothing.
4 And it didn't come from the crime scene. What it
5 came from was Odeh working as part of this bomb plot, and it
6 got on his clothes before he got on that flight. Yes, as
7 Kelly Mount and Dr. Lloyd told you, there is always the
8 possibility of taint, but that doesn't mean, ladies and
9 gentlemen, that from the evidence and from the circumstances
10 you can't determine that those clothes tested positive before
11 or would have tested positive before he left.
12 That residue was on there beforehand. And remember
13 what Kelly Mount said: TNT residue comes from TNT. There's
14 no question that that residue comes from the same explosive
15 that was used to make the bomb in Nairobi.
16 How did it get there? Did the defendant work with
17 the TNT in the bomb factory? Did he work with it somewhere
18 else? Ladies and gentlemen, the evidence doesn't tell you
19 exactly how it got there. But what it does tell you, what it
20 does tell you, when you look at all the evidence, is that it
21 got there before he left. That is powerful evidence, ladies
22 and gentlemen, of the defendant Odeh's involvement in this
23 bombing.
24 Now, the other thing we talked about yesterday in our
25 chronology which puts into context Odeh's views about
5493
1 participating in an operation was the tape letter that he sent
2 to his wife in September of 1997. And remember we talked
3 about this. This is about a month after Harun is sending out
4 the panic alarm: The Americans are on to us.
5 They're worried about Abu Fadhl al Makkee. They're
6 worried about what they saw, the arrest of the five people in
7 Kenya that they blamed the American intelligence for. It's
8 Government Exhibit 300A-T. And if we could go to the second
9 page of that and if you look at the third paragraph -- we read
10 this yesterday -- this is where Harun, the communications
11 person, is writing to the high and wise command after he just
12 gets done explaining that the Americans are on to us because
13 they know about al Qaeda's involvement in Somalia, and he's
14 going to explain a little bit later about how the Americans
15 now have Abu Fadhl al Makkee cooperating with them. Harun
16 also says that "the Americans are pressuring the Kenyans to
17 come after us as well."
18 And Harun is the person, you may remember we went
19 through in February, he's the one who keeps in touch with
20 everybody in the East Africa cell to let everybody know, for
21 example, that Wadih El Hage is in Afghanistan. And in the
22 earlier part of this letter, you remember that what Odeh says
23 is Harun also gave good news. Odeh talked about the bad news
24 that was going to keep them in Somalia longer than they had
25 planned, but at the bottom of this Harun also said "good news
5494
1 about you" and so forth.
2 So Harun is the person who is sharing whatever it is
3 that the group considers a security threat that's going to
4 keep them in Somalia, which is Harun's job. And in this
5 letter, in September of 1997, even before the February '98
6 fatwah that Odeh admits to knowing about, at the end he says,
7 "This time may have been theirs, but not all time will be
8 theirs. We will never allow that, and may God, the master of
9 the universe (unintelligible) to respond 20-fold to one of
10 theirs. Thank God we are still alive and we are still capable
11 of giving and resisting, but of course the matter will require
12 time, preparation and thinking."
13 "The matter will require time preparation and
14 thinking." And from the perspective of the East Africa cell
15 of al Qaeda, where they have now come to believe that the
16 Americans have figured out not only al Qaeda's involvement in
17 Somalia, but that Kenya was the gateway, was the gateway
18 according to what Harun had said, their concern is what the
19 Americans have done to them. And, "The matter will require
20 time, preparation and thinking to respond 20-fold to one of
21 theirs."
22 That was found in Odeh's Witu house. The other thing
23 that was found in his house was the sketches that we talked
24 about, the book, the Crown exercise book that had the sketch.
25 And if we could pull up 704P-2, there you have it. We looked
5495
1 at this this morning.
2 Of course, the question is, well, what are these
3 sketches of? If we pull up Government Exhibit 252, what you
4 see on the right is one of the sketches, the sketch that was
5 on the right-hand side of the Crown exercise book, and what
6 you see on the left is a diagram of the vicinity of the
7 American Embassy, the corner that the American Embassy is on.
8 Remember, on the right of the diagram, the Arabic writing that
9 is down there on the bottom, that says "south." And that's
10 the direction below the roundabout there, and the roundabout
11 appears in both the diagram on the left and the diagram on the
12 right.
13 The road that runs north/south you can see in the
14 diagram near the embassy, and the road that runs east/west you
15 can see both in the diagram in the sketch on the right and the
16 diagram on the left. And you can see the square at the top
17 and you can see the square, the red U.S. Embassy, and then of
18 course there's the access road that is contained in the sketch
19 on the right and the diagram on the left, the access road that
20 leads to the back parking lot of the American Embassy where
21 the truck bomb was driven by Azzam, accompanied by the
22 defendant Al-'Owhali.
23 That's a sketch that was sitting in Mohamed Odeh's
24 residence in Witu, and the page next to that sketch we see in
25 Government Exhibit 253. What you have on the right is that
5496
1 other page, and what you have on the left is a closeup diagram
2 of the back part of the American Embassy, the ramp that leads
3 down into the garage. And what you see below the arrow which
4 points to the embassy is some kind of a generator with the two
5 circles on top of it, and then you look at the sketch on the
6 right and you see part of an outline of that same object.
7 Now, one other thing is you can see if you sort of
8 look at it sideways, you can see the number 3 that's on top
9 there, the number 3 that's on top of what I submit to you is a
10 reflection of the bomb truck. And you may remember that
11 Mr. Miyagi, the person from Toyota who helped construct the
12 Dyna, told you that the back, the truck bed of the Dyna was
13 three meters long.
14 And remember, Odeh is the person who has received the
15 advanced training in explosives. He is the person who has
16 been taught about what type and how much of explosives to
17 carry out an operation, and he is somebody who is an architect
18 and an engineer. And the drawing that comes out the back of
19 that truck, ladies and gentlemen, that's the blast cone. And
20 what the diagram reflects is that the plan is to back the
21 truck up against the embassy to maximize the damage to the
22 embassy, back the truck up as close to the embassy as
23 possible.
24 And remember when I told you that when Odeh gave his
25 statement, he tap danced with the truth but that in so doing
5497
1 he would reveal his role, and now we have -- we'll get you the
2 page number -- another enlargement. Odeh was angry and
3 disappointed at the performance of the al Qaeda leader Saleh.
4 Odeh stated that if they couldn't get the pickup truck into
5 the garage of the embassy, then the occupants of the truck
6 must die trying. They should not have left the truck there to
7 explode and kill so many people.
8 Odeh stated that nobody, even Bin Laden himself,
9 could be happy with the results of the bombing. Odeh stated
10 that the operation conducted against Khobar was 100 times
11 better than Nairobi. Odeh further stated that the position of
12 the pickup was a mistake, and the back of the truck where the
13 explosives were held should be facing the embassy.
14 Odeh stated that if the cab of the pickup was between
15 the explosives and the embassy, at least 60 percent of the
16 shock wave would be diverted. Odeh stated that the errant
17 shock wave hit the wrong building. Odeh stated that he
18 accepts responsibility for the bomb because he is part of the
19 group and that it was a big mistake and Saleh blundered. Odeh
20 again stated that the truck had to back up to the embassy in
21 order to prevent the cab from acting as a hindrance to the
22 shock wave, therefore preventing the surrounding buildings
23 from being pounded.
24 Odeh is in a room with an FBI agent and with people
25 from the Kenyan police, and he understands what the plan was
5498
1 supposed to be because it's reflected in a sketch in his
2 house. The truck was supposed to back up into the embassy,
3 and judging by what he believes happened, because of the
4 incredible number of Kenyans who passed away, who died in that
5 bombing, he believes that the people who carried out the plan
6 that he was a part of made a mistake and that the truck must
7 not have backed up into the embassy and that more Kenyans were
8 killed than he wanted to be killed.
9 He's not saying that he is unhappy about the
10 Americans who were killed, what he is telling the FBI, what he
11 is telling the FBI is that that was not the plan. But the FBI
12 doesn't have this diagram at the time. Just like I said, when
13 he gives the statement, the statement is partly true just as
14 it sits there, and the complete truth comes when you compare
15 that statement to this diagram.
16 Now, there has been cross-examination about
17 pressurization waves and how blast damage goes out at 360
18 degree angles, and of course that is not reflected in the
19 diagram. That's what Agent Sachtleben talked to you about.
20 That's what Agent West talked to you about.
21 And what I suggest to you, what Agent Sachtleben
22 suggests happens when a bomb goes off isn't the point any more
23 than it's the point about whether or not Bin Laden's views are
24 Islamically correct. What matters is what kind of physics the
25 defendant believes in, and the kind of physics the defendant
5499
1 believes in is contained in that statement and reflected in
2 that diagram, in that sketch.
3 He believes that if you back the truck up, just like
4 it's in the sketch, that the cab of the truck will block the
5 blast damage and the glass damage won't go away from the
6 embassy and kill other people near the embassy, that the blast
7 damage will be directed towards the embassy. That's what he
8 believes.
9 And Agent Sachtleben and Agent West are highly
10 trained. They have attended conferences, but they never went
11 to the Sadeek Camp and they were never trained by Abdel Rahman
12 in the al Qaeda camps like Odeh was. Though their physics may
13 not be right, the fact that he knows or believes what the
14 physics was supposed to be and what he believes happened tells
15 you exactly what the plan was supposed to be, the plan that
16 Odeh participated in.
17 And when you put it all together, when you put the
18 sketches, both individually and collectively, and you compare
19 them to the diagrams, and then you compare them to this tap
20 dance, ladies and gentlemen, and you think about the letter in
21 September of 1997, "time, preparation and thinking," and you
22 think about how this is a man who was trained in al Qaeda, he
23 swore to follow Islamically correct orders in al Qaeda, he was
24 part of the East African cell that was the implementers for
25 Bin Laden in East Africa, that he flies away the night before
5500
1 with the others who carry out the bombing, that he checks into
2 a hotel using a fake passport, the same one he's going to use
3 to flee so that somebody knows where he was in Nairobi, and
4 when you think about how he was even willing to admit a little
5 bit about those meetings, meetings that tell you a tidbit
6 about the kinds of conversations they were having, the
7 possibility of an operation in Kenya at a time when they know
8 that the number one target is America, you piece all of that
9 together, ladies and gentlemen, and the only conclusion is
10 that Odeh's role in this was not to drive the truck, it was
11 not to throw the flash grenades, he was one of the people who
12 was going to plan the operation.
13 And by doing the tap dance, by saying those many
14 Kenyans shouldn't have died, Odeh is saying exactly what the
15 plan was supposed to be. And if you go through the report and
16 you read it from beginning to end, you will not see in there
17 once a statement of remorse about the dead Americans. That's
18 not what's bothering Odeh.
19 MR. RICCO: Your Honor, I'm going to object and I
20 would like to be heard. I'll be heard at a break.
21 THE COURT: We'll take it up during the mid afternoon
22 recess.
23 MR. KARAS: For your notes, ladies and gentlemen,
24 this is from page 25 of the report.
25 What is it that Odeh is talking about? If you take a
5501
1 look at Government Exhibit 806I, that's the damage that the
2 cab of the truck was supposed to stop. The cab of the truck
3 was supposed to deflect the blast wave, the blast shock, the
4 blast to make sure that maximum force was applied to the
5 American Embassy and that the explosive damage would not
6 extend to the area outside the embassy. As we know from Agent
7 Sachtleben and Agent West, actually it goes 360 degrees. And
8 when you put a bomb in a crowded city like that, that's what
9 happens -- hundreds of people die.
10 So, ladies and gentlemen, what the evidence shows is
11 that Odeh's role was to be a planner, a technical advisor,
12 somebody who aided and abetted in the criminal venture, in the
13 venture, in the operation to bomb the American Embassy. That
14 was his role. And the evidence of his role, as I said, is
15 reflected in the statements, in his actions, in his flight, in
16 the fake travel documents, in the September '97 letter, in his
17 role, his membership in al Qaeda, in those sketches combined
18 with his statements. That was the role that Odeh served.
19 The defendant Al-'Owhali, his role was different.
20 The evidence of his role comes from his statements to what
21 eyewitnesses told you they saw and from physical evidence. As
22 you know, ladies and gentlemen, Agent Gaudin testified that he
23 interviewed Al-'Owhali on August 22nd, the day before he
24 showed Al-'Owhali telephone records and he made Al-'Owhali
25 aware of this bomb factory and Al-'Owhali had been picked out
5502
1 in an identification lineup.
2 On August 22, Al-'Owhali tells Agent Gaudin that if
3 he is allowed to face his enemy, if he is given a guarantee
4 that he will be sent to the United States to face his real
5 enemy, which he says is America and not Kenya, then he will
6 tell everything.
7 And you heard the testimony about the agreement and
8 the best efforts and it wasn't enough, and then Al-'Owhali
9 decided it was enough and he was advised of his rights. And
10 in one swoop from beginning to end, as Al-'Owhali requested,
11 without interruption, he laid it all out.
12 He laid out the training we talked about. He laid
13 out the meeting with Bin Laden where he asked for the mission.
14 He laid out knowing about the fatwahs being at the ABC News
15 interview. He laid outgoing to Yemen to get the passport in
16 the fake name. He laid out the video that he made. He laid
17 out arriving in Nairobi, meeting up with Harun, going to the
18 bomb factory, going through pictures and diagrams of the
19 American Embassy.
20 He laid out what his role was, what he knew about the
21 Dar es Salaam bombing in terms of how many people were going
22 to carry it out, how it was going to be carried out, and then
23 he laid out what he did. He got out of the truck that
24 morning, he threw the flash bangs and then he ran. He laid
25 all of that out in one statement in detail.
5503
1 And one of the things that's interesting, ladies and
2 gentlemen, and it relates to what we talked about this morning
3 with respect to the conspiracy, Al-'Owhali laid out -- and he
4 told Agent Gaudin there were some things he wasn't going to
5 tell Agent Gaudin, but he laid out what it was he did. And
6 one of the things about conspiracies that we talked about is
7 it's two or more people entering into an illegal agreement.
8 Well, all of the people who were part of the
9 conspiracy don't have to know one another to be part of the
10 same conspiracy. And Al-'Owhali didn't mention Mustafa
11 Fadhil, the person who was involved in the Dar es Salaam
12 bombing and who fled in early August 1998, he didn't mention
13 Swedan, the person who got the bomb trucks in the two cities,
14 but what he laid out was his role, and he laid it out in
15 detail. And he also described the phone calls to Yemen and
16 going to the M.P. Shah Hospital and trying to get out of
17 Nairobi before he was caught.
18 By the way, he laid out the name of the organization
19 that the video claimed credit for the bombing: The Army of
20 Liberating Islamic Holy Lands, very similar to the claims of
21 responsibility that actually were sent to Islamic Army for the
22 Liberation of the Holy Lands.
23 There is other evidence that establishes Al-'Owhali's
24 guilt and evidence which also corroborates precisely what it
25 was he told Agent Gaudin. Mr. Muwaka Mula, who worked at the
5504
1 embassy, who was working at the embassy on the morning of
2 August 7, he described for you seeing a truck coming towards
3 the gate of the back embassy and he said that the passenger of
4 the truck got out. And he described what he sort of knew as
5 headphones, it looked like sort of the headphones that were
6 used at airports, and how he saw Al-'Owhali throw these, what
7 he described as headphones, which are the flash bangs, towards
8 the guard. He saw the truck, and then when he realized
9 something bad was going to happen, he ran. But he said that
10 he saw Al-'Owhali run in the other direction.
11 And in this courtroom, Mr. Muwaka Mula, from that
12 witness stand, identified the defendant Al-'Owhali as the
13 person he saw getting out of the truck, and he told you that
14 he identified him in an identification parade.
15 And, ladies and gentlemen, if there's any suggestion
16 that Mr. Muwaka Mula was coached on where Al-'Owhali was
17 sitting, remember the testimony of Amina Rashid, the person
18 what was at 15 Amani, the person who, when asked to identify
19 Khalfan Khamis Mohamed, she stood up and she looked at you
20 first, and then she went around the courtroom. And she stared
21 for a while over there and she didn't pick anybody out, but
22 you saw by her reaction when asked, look around the courtroom
23 and see if you find anybody, her first instinct was to look to
24 the people closest to her.
25 Mr. Muwaka Mula described what happened that morning
5505
1 the way Al-'Owhali described it to Agent Gaudin, and he picked
2 out the defendant Mohamed Al-'Owhali as being the person who
3 got out of the truck and threw those grenades.
4 Al-'Owhali checked in to the M.P. Shah Hospital, and
5 you know that from Government Exhibit 550. This is a card, a
6 patient card, a patient receipt, if you will, M.P. Shah
7 Hospital. This is found on Al-'Owhali when he is arrested,
8 and you see on the top there, M.P. Shah Hospital. And the
9 bottom you see 7 August, 1998, Khalid Saleh, the alias that
10 Al-'Owhali was using at the time, the alias that's in that
11 fake passport he got when he was in Yemen.
12 And we won't display it, but Government Exhibit 579A
13 and B are the patient records from the M.P. Shah Hospital, and
14 the patient records show that Khalid Saleh was treated at M.P.
15 Shah Hospital, just like Al-'Owhali told Agent Gaudin.
16 The other thing that Al-'Owhali said was that before
17 he left M.P. Shah, he realized he still had the bullets and
18 the keys, the bullets that were supposed to go with the gun
19 that he was supposed to use to try to get the truck closer to
20 the embassy and the keys to the back of the truck that, in
21 case for some reason the detonation device didn't work, he was
22 supposed to use the keys to open up the back of the truck and
23 throw the flash bangs in there to detonate the bomb.
24 And you heard from Mr. Wangi, who was the custodian
25 at M.P. Shah Hospital, working in the men's room that day, and
5506
1 he's cleaning up above there and he said these things came
2 down. And then he said that what he did was he gave them to
3 the security guard, Opiyo. And you heard from him, and
4 Mr. Opiyo identified 559, the bullets, and 558, the keys, the
5 items that he got from Mr. Wangi on the 8th, just like
6 Al-'Owhali described.
7 And then you heard from Agent Casper from the FBI,
8 and he was the person that did the analysis on the gun slide,
9 Government Exhibit 838, that was found in the vicinity of the
10 embassy bombing. And Agent Sachtleben testified before you
11 and he described for you how he could tell that that slide had
12 been near the bomb itself because of the damage and how half
13 the slide had been ripped off.
14 And what Agent Casper told you is that first he was
15 able to determine that that mangled slide was from a Baretta
16 1934. Then what he did was he compared it to a picture he
17 had, 839-P, and then what he did was he looked at these
18 bullets, Government Exhibit 559, and what he said was that
19 these bullets were probably not originally made for the .9
20 millimeter that was the Baretta, but that they had been
21 shaved, they had been altered to fit a .9 millimeter. So the
22 bullets that Al-'Owhali had that he left at the M.P. Shah
23 Hospital were altered to fit the gun that matches the slide
24 that was found in the vicinity of the embassy.
25 You saw, we went through this morning, the summary
5507
1 charts for the phone records reflecting the calls both from 43
2 Runda Estates, the bomb factory that Al-'Owhali talked about,
3 the calls to his cohort in Yemen, and then the calls from some
4 of the other pay phones in the vicinity of the Ramada Hotel
5 afterwards, when Al-'Owhali was trying to escape and trying to
6 flee because he doesn't have his passport and his money. And
7 then we also took a look at the summary chart that showed that
8 at the same time the satellite phone in Afghanistan is calling
9 the same number in Yemen, that the al Qaeda headquarters is
10 trying to rescue Al-'Owhali, trying to extract him from Kenya
11 and get him to Afghanistan before he is caught.
12 The other person you heard from was Ismail Ali, and
13 he's the person that ran, and runs, the money exchange place
14 known as Dihab Shil. And you saw Government Exhibit 580-15
15 and then 580-117 -- excuse me, 115 and 117. And this was the
16 ledger, and there was much to do over the Whiteout and
17 everything else.
18 And then what you saw was Government Exhibit 580A,
19 and you see, by the way, exactly what Al-'Owhali described.
20 On the 11th of August, there's a wire transfer of $1,000 from
21 Yemen. The instructions are that the person who is supposed
22 to pick up the money doesn't have I.D., which you know. And
23 there you see the receipt, the payment receipt. You see on
24 the right, 11/8/98, Khalid Salim Bin Rashid, $1,000, at the
25 Dahab Shil office. And there was the receipt that you heard
5508
1 Ismail Ali testify to you about.
2 Finally, ladies and gentlemen, there's the clothes
3 that Al-'Owhali had. Government Exhibits 552 to 556, the
4 clothes he had when he was arrested on the 12th of August.
5 They testified positive. And you take a look at Government
6 Exhibit 572, PETN and TNT. PETN and TNT.
7 Khalfan Khamis Mohamed, what's the evidence of his
8 involvement in the Dar es Salaam bombing? And now we're
9 talking about Dar es Salaam. The evidence comes from his
10 statement to Agent Perkins, by witnesses who put him in places
11 like the bomb factory and buying other or participating in
12 other activities of a part of the plot and physical evidence.
13 First, with respect to the statements, again, Khalfan
14 Khamis Mohamed was advised of his rights, and what he said was
15 there was no point in not telling the FBI, no point in not
16 talking to them because from his perspective, since the FBI
17 found them, they already knew everything.
18 And you remember Agent Perkins said that twice when
19 asked, "Where do you want to go?," Khalfan Khamis Mohamed
20 said, "Take me to America. Take me to America." And he said
21 that he wanted to make the point that he was not part of a
22 bunch of crazy people who were wielding guns for no reason,
23 that there was a purpose to what it is that they were doing.
24 And he, too, gave a detailed explanation of what it was that
25 he did.
5509
1 He talked about the training. He talked about when
2 it was he met people like Fahad and Mustafa. He talked about
3 when it was that Mustafa came to him and approached him about
4 the Jihad job in March of 1998. He talked about how he bought
5 the Suzuki was his role, the Suzuki that was used to transport
6 the components. How he rented the place at 213 Ilala, and you
7 remember he signed pictures and copies of the documents that
8 Agent Perkins showed him.
9 He described the bomb; it was involving TNT, which
10 you know is true. He described, he gave the drawing of the
11 detonator and the back of the bomb truck which we compared
12 earlier to the other diagram. He mentioned that the bomb
13 included batteries, and we saw the battery casing that Julius
14 Kisingo talked about, the welder.
15 He talked about how he and the others loaded the bomb
16 on the truck. He talked about how they used that cell phone
17 that you saw the records of that calls up to the Hilltop, and
18 there were no calls until after about an hour before the
19 bombing. He talked about the roles of the others, Mustafa and
20 Fahad and Sheik, as he knew him, the person who purchased the
21 truck.
22 He talked about how he and Ahmed, the suicide driver,
23 got the truck out of the sand, how he delivered a package for
24 Ahmed to Egypt, about how he got a fake visa, a visa in a fake
25 name. He talked about a Mr. Nico. Remember there was a card
5510
1 he had on him that was somebody he could go to if he needed
2 fake travel documents.
3 And he mentioned that he was happy that the bomb went
4 off; that the fact that not Americans died was part of the
5 business and Allah would take care of those who died. He
6 mentioned that Abdel Rahman came to wire the bomb with all
7 confidence; that he got out of Tanzania the day after the
8 bombing after he made efforts to clean out the bomb factory.
9 Well, the independent evidence establishes his guilt
10 and it corroborates precisely what it was that Khalfan Khamis
11 Mohamed told Agent Perkins. You know that he lived at 22
12 Kidigalo Street with Mustafa Fadhil because the next door
13 neighbor and the landlord told you. You know that he rented
14 the bomb factory because Mohamed Selemani, the broker, told
15 you that.
16 You know from Ahmed Salum, the brother of Khalfan
17 Khamis' brother-in-law, that Khalfan Khamis was trying to
18 discard some of the items from the bomb factory, 213 Ilala,
19 and that he wanted to have other people come in and rent the
20 place when they left. You know from Abdallah Hamisi, Khalfan
21 Khamis Mohamed's friend, that he got training in Afghanistan;
22 that it was financed by Bin Laden and it was focussed on
23 Jihad. And finally, you heard from Zahran Nassar, Mauldin,
24 the person whose name Khalfan Khamis Mohamed used in that
25 passport to get the visa to flee to South Africa.
5511
1 The physical evidence, Government Exhibit 1462, is a
2 summary chart, and in addition to the other items we talked
3 about at 15 Amani and 232 Kidugalo and at 213 Ilala, some of
4 the items that Khalfan Khamis Mohamed had on him in South
5 Africa tested positive.
6 If we can go to the next. Government Exhibit 1015 is
7 a vaccination card in the name of Zahran Nassar, Mauldin. And
8 here's the passport I mentioned to you, Government Exhibit
9 1018, another fake passport used, and the skull cap,
10 Government Exhibit 1017, items that tested positive as
11 reflected on the summary chart, 1462.
12 That is the evidence, ladies and gentlemen, of the
13 precise role of the three defendants who were charged with the
14 respective bombings. Now what I would like to do is just go
15 through the counts briefly and lay out for you what some of
16 the proof is that's unique to those specific counts.
17 We can break here, your Honor.
18 THE COURT: All right, we'll take our mid afternoon
19 break.
20 (Jury not present)
21 THE COURT: Mr. Ricco, you had an objection?
22 MR. RICCO: Yes, your Honor. I objected reluctantly
23 because I believe what the government has done in connection
24 with its argument against Mr. Odeh is that it has pandered to
25 the patriotism of the Americans and the jury, consciously
5512
1 disregarding the words that were used in the exhibit.
2 Judge, as the Court is aware, Mr. Odeh is not an
3 American citizen, and what the government has done with
4 respect to the evidence against him has totally disregarded
5 the testimony and the exhibit itself and made an argument to
6 appeal to them as Americans. And I will be specific with
7 respect to that.
8 Page 25, the exhibit that was in front of the jury --
9 in fact, it's blown up right here, the Court can probably see
10 it.
11 THE COURT: I can't, but I would like to.
12 MR. RICCO: Judge, you can use mine.
13 THE COURT: GS6, page?
14 MR. RICCO: 25.
15 THE COURT: Page 25.
16 MR. RICCO: That would be, yes, that would be this
17 exhibit that was displayed prominently before the jury. And
18 in this exhibit the government argued twice to the jury that
19 Mr. Odeh was not concerned that Americans were killed, he was
20 concerned only with the Kenyans. And he made that argument
21 twice.
22 I objected the second time. I objected because the
23 document itself says that, and I quote, "They should not have
24 left the truck there to explode and kill so many people."
25 That says nothing about them being American or Kenyan. Now
5513
1 one --
2 THE COURT: But the consequences --
3 I'm sorry.
4 MR. RICCO: Would one would think that's fair
5 argument from them --
6 THE COURT: May I interrupt you for a moment so we
7 can focus on this?
8 MR. RICCO: Yes, your Honor.
9 THE COURT: The context is, is it not, that if the
10 truck had gotten into the embassy, the force of the explosion
11 would have been to the embassy, which was the focal point for
12 the Americans; that the consequence of that not occurring was
13 that there was havoc in the surrounding area, in the
14 neighborhood buildings and the streets where the Kenyans were.
15 And so it seems to me that --
16 MR. RICCO: Judge, can I --
17 THE COURT: Excuse me.
18 -- "they should not have left the truck there to
19 explode and kill so many people," if the truck had been in the
20 embassy, it would have killed many people, but they would have
21 been different people. Is that not a fair argument to be made
22 from this exhibit?
23 MR. RICCO: I don't disagree with that, except now
24 you have to compare that to the trial testimony. And at page
25 1748 --
5514
1 THE COURT: But this is an exhibit in evidence.
2 MR. RICCO: Your Honor, what I am suggesting to the
3 Court is that what the government has done is disregarded the
4 trial testimony to make that argument in front of the jury
5 intentionally, because the trial testimony says as follows:
6 "Did he ever indicate that he was concerned or upset
7 that Americans in the embassy had been killed?" Which was the
8 argument made. And the witness Anticev said at page 1747,
9 "No."
10 That was the last question asked on his direct
11 testimony.
12 The first question asked on cross-examination was:
13 "Q. Mr. Fitzgerald just asked you a question as to whether or not he expressed any concern that Americans were killed. Isn't it a fact that Mr. Odeh didn't make any distinction between Americans or Kenyans? He was upset that people were killed;
14 that correct?
15 "A. I don't know what he was thinking when he made that
16 statement.
17 "Q. Made what statement? That he was concerned that many
18 people were killed?
19 "A. I truly believe that he was concerned that people were
20 killed, innocent people were killed.
21 "Q. So my question is a simple question: He never made a
22 distinction to you that he was concerned because they were
23 only Kenyans and not Americans, did he? That was never said
24 by him, was it?
25 "A. No. He never specifically said that he broke it down,
5515
1 that I'm upset Americans are killed and Americans are or are
2 not."
3 And the government made just the opposite argument to
4 the jury. They did it here this afternoon. They said it
5 twice, in the face of the testimony to the contrary. And
6 because of that, I ask for a mistrial on behalf of Mr. Odeh
7 and, if not, I ask for an instruction from the Court that is
8 the testimony in this case that controls and not the argument
9 of the government about that testimony.
10 THE COURT: Well, the last point is true, certainly,
11 without having any question that it's the --
12 MR. RICCO: And the government also said that
13 Mr. Odeh made that statement, that Americans were killed
14 without any remorse, and that's nowhere to be found in the
15 record.
16 MR. KARAS: Your Honor, the charge is that the
17 defendant sought to kill Americans, so there can't be any
18 pandering to the jury that the evidence shows that the
19 defendant tried to kill Americans.
20 The statement that Mohamed Odeh makes here about why
21 he thinks the bomb went off, it may or may not be that Agent
22 Anticev didn't think that Odeh distinguished between Americans
23 or non-Americans in that statement, but elsewhere in the
24 report, which is in evidence as Government Exhibit 6, Odeh was
25 asked a series of hypothetical questions and one of the
5516
1 hypothetical questions he was asked is whether or not he could
2 participate in an operation against the U.S. building in
3 Kenyans if no Kenyans could be killed, and he said no, because
4 he likes Kenyans and Kenya. Odeh was then asked if he would
5 participate in an operation to bomb a U.S. building outside of
6 Kenya in a place such as Tanzania if only Americans were
7 killed. He stated would consider it if Islamically correct.
8 So elsewhere in the statement, your Honor, and I
9 think this is argument, Odeh is willing to make a distinction
10 between where it is he might carry an operation out against
11 Americans and where it is he might not. And he seems much
12 more willing to do it not because Americans may or may not get
13 killed, but because of who else might be killed in the
14 operation.
15 And what we argue is that in combination with the
16 statement that Mr. Ricco just focused on combined with the
17 diagram expresses how it is that Odeh wanted the operation to
18 be carried out.
19 THE COURT: The objection is denied. The motion for
20 a mistrial is denied.
21 I'm debating whether it would be helpful to remind
22 the jury that when they deliberate they will have physically a
23 copy of the indictment and of the charge and a verdict form.
24 I am concerned that when you start getting into 180 counts, I
25 think I will remind them of that so that we don't have anyone
5517
1 writing down the names of all of the victims.
2 We'll take a five-minute recess.
3 (Recess)
4
5 (Continued on next page)
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9
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5518
1 THE COURT: Mr. Ruhnke, I take it that your letter
2 with respect to Brady and possible later phase of this case
3 should await a response from the government.
4 MR. RUHNKE: I should think the government would want
5 to respond, your Honor.
6 MR. GARCIA: Yes, your Honor.
7 MR. COHN: Your Honor, the record should reflect that
8 we join in that.
9 THE COURT: Mr. Garcia, when can I expect a response
10 from the government?
11 MR. GARCIA: Friday? Thank you.
12 THE COURT: I am told there is a juror on the
13 telephone and they will be a moment or two.
14 (Jury present)
15 THE COURT: Ladies and gentlemen, I want to remind
16 you that when you begin your deliberations, throughout your
17 deliberations, you will have with you three documents. You
18 will have with you a copy of the indictment. You will have a
19 copy of the court's instructions. You will have that orally
20 but you will also have it in writing. And you will also have
21 a verdict form which will tell you exactly what questions you
22 have to answer. So that there are a great many counts and a
23 great many issues, but understand that you will have those
24 guides during your deliberations.
25 MR. KARAS: We left off, we were about to get into
5519
1 the actual counts themselves in the indictment. What you will
2 see is that the counts are similar in terms of what crimes
3 they charge. There is one charge that may relate to the
4 Nairobi bombing and then the equivalent charge that relates to
5 the Dar es Salaam bombing. For example, Counts 5 and 6 charge
6 the defendants Odeh and Al-'Owhali in connection with the
7 Nairobi bombing of using an explosive to damage or destroy a
8 US government building, and then Count 6 charges the defendant
9 Khalfan Khamis Mohamed with the same conduct in connection
10 with the Dar es Salaam bombing. The elements of that crime
11 are the use of an explosive, and we have talked about that,
12 and then whether or not the subject, the target of the attack
13 was a US government facility. Government's Exhibit 41 is a
14 stipulation that relates to Government's Exhibit 713, which is
15 the lease to the United States government for the property in
16 Nairobi. And Government's Exhibit 57 is a stipulation that
17 relates to the lease for the Dar es Salaam embassy,
18 Government's Exhibit 1106. So the evidence is that each of
19 the embassies was property of the United States.
20 Counts 7 and 8 deal with the use of a weapon of mass
21 destruction against United States nationals. Count 7 deals
22 with Nairobi and Count 8 deals with Dar es Salaam. The issue
23 there is the use of a weapon of mass destruction, and Judge
24 Sand will give you an instruction that defines what that term
25 means, but it basically means a bomb. Again, the count
5520
1 involves either US nationals or US property. There is a
2 stipulation that we read to you and that we will discuss a
3 little bit more about the nationality of some of the victims,
4 and of course the leases that we mentioned earlier.
5 Counts 9 through 232 are the individual murder
6 counts. They reflect the murder of each victim. Counts 9 to
7 221 are the murder victims in Nairobi, and Counts 222 to 232
8 are the murder counts in Dar es Salaam. So there, the
9 government is required to prove beyond a reasonable doubt that
10 each defendant charged killed a victim as charged, and that
11 the victim was killed during the course of an attack on
12 federal property, and of course that the defendant acted
13 intentionally and so forth.
14 The victims for the Nairobi bombing and the cause of
15 death is discussed in Government's Exhibit 39, which is the
16 stipulation that lists all the victims in Nairobi, and you
17 will see that that list tracks each count in the indictment,
18 and the stipulation is that the cause of death was as a result
19 of the attack on the embassy in Nairobi. So each one of those
20 counts is proven up by the stipulation. And there is a
21 stipulation that reflects the 11 victims in Dar es Salaam,
22 Government's Exhibit 54.
23 Counts 233 through 273 charge, again, individual
24 murder counts for each of the US government employees that
25 were killed in Nairobi, and there the stipulation is
5521
1 Government's Exhibit 42, which lists the US government
2 employees that were killed as a result of the attack in
3 Nairobi, and the stipulation for the employees that were
4 killed in Dar es Salaam, which are Counts 275 and 276, that
5 stipulation is marked as Government's Exhibit 55.
6 Throughout these counts the government must prove
7 beyond a reasonable doubt that the defendants acted
8 intentionally and unlawfully, and sometimes there is a
9 separate requirement that there be proof that the defendants
10 acted out of premeditation. I submit to you that the evidence
11 does show premeditation in connection with all the murders in
12 Nairobi and Dar es Salaam.
13 Count 274 charges attempted murder of US government
14 employees in Nairobi. Count 277 charges attempted murder of
15 US government employees in Dar es Salaam. The same evidence
16 that shows that each of the defendants charged respectively
17 with the two different bombings, that they bombed the
18 embassies in Nairobi in the case of Odeh and Al-'Owhali and
19 Dar es Salaam in the case of Khalfan Khamis Mohamed, was an
20 attempt to murder the employees who worked at the US
21 embassies. We talked a little bit earlier about what
22 Al-'Owhali and Khalfan Khamis Mohamed said in their statements
23 in connection with what they felt the reasons and their
24 obligations were regarding United States government employees.
25 Counts 278 and 279 charge the defendants Odeh and
5522
1 Al-'Owhali with murder of internationally protected persons.
2 There is a stipulation that lists the victims who are
3 internationally protected persons. That is something that is
4 defined by both the applicable statutes and treaties, and that
5 is Government's Exhibit 40, which lists the persons who were
6 internationally protected persons that were killed of the
7 bombing in Nairobi.
8 Count 280 charges Khalfan Khamis Mohamed with the
9 attempted murder -- excuse me. Count 280 is the attempted
10 murder of internationally protected persons in Nairobi and 281
11 is the murder of internationally protected persons in Dar es
12 Salaam. Among the people who are internationally protected
13 persons are ambassadors, for example, and there are other
14 ranking diplomats.
15 Count 282 charges the defendants Odeh, Al-'Owhali and
16 Khalfan Khamis Mohamed with the use and carrying of an
17 explosive, and what it specifically charges is the use and
18 carrying of an explosive in connection with Count 1, the
19 conspiracy to carry nationals, in furtherance of another
20 violent felony, and the violent felony referenced in 282 is
21 the first count that I mentioned, the conspiracy to murder US
22 nationals. The violence charged in that conspiracy count is
23 the conspiracy to murder United States nationals. The
24 explosive, of course, is the bomb that was used in connection
25 with each of the bombings in Nairobi and Dar es Salaam.
5523
1 Count 283 charges the use and carrying of a
2 destructive device in connection with the Nairobi bombing. So
3 that includes the defendants Odeh and Al-'Owhali. Count 284
4 charges the same, use and carrying of a destructive device in
5 connection with the Dar es Salaam bombing. In this case, what
6 these relate to is Count 283. Because it relates only to the
7 Nairobi bombing it incorporates Count 5, which is the bombing
8 of the embassy in Nairobi. That is the charge that is
9 contained in Count 5.
10 Count 284 charges Khalfan Khamis Mohamed with using
11 and carrying a destructive device, a bomb, in connection with
12 Count 6, which is the bombing of the American Embassy in Dar
13 es Salaam. As Judge Sand mentioned, you will have the
14 indictment and you will see that in order to find each of the
15 defendants guilty of those two charges you would first have to
16 find the defendants guilty of participating in the bombing as
17 charged in Count 5 with respect to Nairobi and Count 6 with
18 respect to Dar es Salaam.
19 Lastly, ladies and gentlemen, we get to the perjury
20 counts. The perjury counts go from 285 to Count 302. There
21 the government must prove beyond a reasonable doubt first that
22 the defendant was under oath, and in this Government's Exhibit
23 189 is a stipulation that Wadih El Hage was under oath when he
24 testified in the grand jury in both 1997 and 1998; second,
25 that the testimony was false as set forth in the indictment,
5524
1 and we will go through that in a moment; third, the matters to
2 which the testimony was false was material to the grand jury's
3 investigation, and we will talk about that as well; and that
4 the false testimony was given knowingly and intentionally,
5 that is, that it was not a mistake.
6 With respect to materiality, there is a stipulation,
7 Government's Exhibit 172, that describes for you in detail,
8 and I invite you to look at it during your deliberations, as
9 to what the grand jury was focused on in the investigation. I
10 will give you some of the things that are described in that
11 stipulation: That as of September 1997, the grand jury's
12 investigation was focused on, among other things, the
13 structure and operational status of Al Qaeda, the targets of
14 Al Qaeda's terrorist activities, including American interests,
15 the relationship between Wadih El Hage and others in the Al
16 Qaeda organization, including Usama Bin Laden, Abu Ubaidah al
17 Banshiri and Abu Hafs; the nature and timing of various
18 statements made by Usama Bin Laden, both public and private;
19 the identities and code names, aliases and whereabouts of Al
20 Qaeda members and associates; the nature and extent of Wadih
21 El Hage's contacts with Bin Laden, Khalid al Fawwaz, Ali
22 Mohamed and Abu Ubaidah; the role played by Usama Bin Laden
23 and the role of associates in Al Qaeda in 1993; the nature of
24 the work conducted by Fazhul Abdallah Mohamed -- that's
25 Harun's real name -- Ali Mohamed Khalid al Fawwaz or Usama Bin
5525
1 Laden, as well as the identities of the persons with whom
2 Wadih El Hage met during trips to Afghanistan and Pakistan in
3 1997.
4 There is a separate listing for what it was that was
5 material to the grand jury's investigation as to additional
6 items that the grand jury was focused on in the time of 1997,
7 and this includes, for example, the February 1998 fatwah
8 issued by Bin Laden, subsequent television threats issued by
9 Bin Laden in 1998, the bombings in Dar es Salaam and in
10 Nairobi on August 7, the meaning of certain documents
11 recovered in searches conducted in Nairobi in August 1998, and
12 then there is a listing of some of the particular individuals,
13 using Nawawi, known as Ali Sulieman, Ihab Ali, the nature of
14 the relationship between Wadih El Hage and Mohamed Odeh, the
15 relationship between Wadih El Hage and Khalid al Fawwaz, the
16 relationship between Wadih El Hage and Fazul Abdallah Mohamed.
17 What I am going to do, ladies and gentlemen, we are
18 going to go through these counts not in numerical order but in
19 the order of the subjects that they occur. Counts 285 and
20 291 -- 285 deals with 1997 and Count 291 deals with 1998
21 regarding Wadih El Hage's relationship with Bin Laden. For
22 example, 285 charges that on September 24, 1997, Wadih El
23 Hage, having taken an oath to testify, made false material
24 declarations and then gave the following underlined testimony.
25 This is an enlargement of how the indictment reads. Each one
5526
1 of these letters here in parentheses is a specification of
2 what it is that is alleged to be false, what it is that Wadih
3 El Hage is alleged to have lied about, intentionally. You can
4 see, for example, D, did you get any messages from Usama Bin
5 Laden on either trip when you went back to Pakistan in 1997,
6 and the underlying answer is what you focus on in determining
7 whether or not the answer is false and whether or not Wadih El
8 Hage lied as is alleged in the indictment.
9 What I will do is, Count 285 -- I realize that not
10 all of you can see this at once. I will go through them and
11 then we will go through the evidence, and we have on the
12 screen what we will display for you is just for exhibition
13 purposes only, the exhibits that are in evidence that
14 establish how it is that the government has proved beyond a
15 reasonable doubt that El Hage lied in connection with this
16 count.
17 Count 285 -- I will put 291 down here, and I will
18 read it out and we will talk about it. Count 285, which is
19 the testimony on September 2, the question is when is the last
20 time you saw Usama Bin Laden in person? Answer, 1994. Then
21 question, under oath your testimony is that you have not seen
22 Usama Bin Laden in 1995, 1996 or 1997, is that correct?
23 Answer, yes.
24 Then if you go down to specification D. Did you get
25 any messages from Usama Bin Laden on either trip when you went
5527
1 back to Pakistan in 1997? Answer, no, no messages. Question,
2 regarding 1994, that is the last time you have seen him?
3 Answer, yes. Then you see specification number 6: I haven't
4 seen him anywhere after I left Sudan -- referring to Bin
5 Laden. And then you see down in specification G, and you have
6 not told anyone that you have seen Usama Bin Laden anywhere in
7 the world in 1995, 1996 or 1997? Answer, yes.
8 There are similar answers that are given in Count 291
9 relating to the last time as to when it is that Wadih El Hage
10 saw Usama Bin Laden.
11 How is it that you know beyond a reasonable doubt
12 that those answers were intentionally false? If you take a
13 look at Government's Exhibit 210A-T, this is a conversation,
14 an intercepted conversation on February 4, 1997 -- 210A-T? If
15 we go to the third page and if we go about halfway down, this
16 is a telephone conversation involving Wadih El Hage and Harun,
17 and El Hage says yeah, the telephone you gave me the other day
18 is always closed. I get recorded messages that says it is off
19 now. And Harun says until now I got tired, I tried but it
20 would not. And El Hage says anyhow in case they call, in case
21 they call me tell them this, the Executive House, that's it,
22 and then he gives you a number.
23 We reviewed this a little bit earlier and showed you
24 Government's Exhibit 646, which was the document from the
25 hotel, the Executive Guesthouse that showed that that was in
5528
1 Peshawar. We looked at the map. Peshawar is the border town
2 in Pakistan. The telephone you gave me is always closed. You
3 may remember the records for the satellite phone show no calls
4 for this time period. So Usama El Hage is trying to get hold
5 of Bin Laden and he is trying to make sure that Harun gets a
6 message back to Bin Laden, and this is during the February
7 1997 trip, of course.
8 If you go to Government's Exhibit 211A-T, about two
9 thirds of the way down on page 2, this is a conversation on
10 February 7, and this is Harun talking to Mustafa Fadhl, and
11 Harun says, about a few days ago your friend over there had
12 called, the big one. He said your friend had arrived. He is
13 with me now. Mustafa says yeah, whatever God intends. Then
14 Harun says yes, yes, he called especially for that purpose.
15 He said don't worry and I didn't take him from the hotel. So
16 this is Harun talking again about El Hage's trip in Pakistan
17 in February 1997.
18 Then you see the documents that show exactly what it
19 is that El Hage did when he went to Pakistan in February 1997,
20 and the first evidence of that is Government's Exhibit
21 310-74AT, and this is one of the documents found on one of the
22 disks that Agent Coleman seized from El Hage's house in August
23 1997. You see in the very first paragraph when Abdel Sabbour
24 arrived on 22/2/1997, he contacted Khaled directly and asked
25 him to come to Nairobi. When he arrived and met with Abdel
5529
1 Sabbour, he informed him about the status of the young men and
2 the Hajj and that they were fine and he received from him the
3 trusts, and he informed him also that the Hajj has a new
4 policy pertaining to the region. Abdel Sabbour is Wadih El
5 Hage. We know he got back in February 1997. We saw the
6 stamps in his passport. And you see the document labeled top
7 secret, for Al Qaeda only, describes a meeting between Abdel
8 Sabbour, Wadih El Hage and Bin Laden, known as the Hajj, and
9 that Bin Laden gave Wadih El Hage the new policy that we saw
10 this document and other documents describe.
11 Then in Government's Exhibit 632B, this is a letter
12 from Wadih El Hage to Abu Khadija. You remember this is the
13 Abu Khadija in Germany, not the other one. El Hage says I
14 went to visit Hajj and he sends his regards, the people that
15 work with him send their regards. As a matter of fact, their
16 situation over there is very good. They are very good on the
17 contrary of what we read or hear in the newspapers and
18 magazines. The owners of the land are cooperating with them
19 and they welcome them. I shall send a report about the latest
20 situation in the few days, God willing. The report he is
21 talking about is the report regarding the Taliban that was
22 issued under the name of Abu Hafs. Government's Exhibit
23 310-BT is a document pulled from El Hage's computer. That is
24 the document that has Abu Hafs, the military commander, the
25 chief lieutenant, and Government's Exhibit 245-T, which is a
5530
1 translation of the report without Abu Hafs at the bottom.
2 That is the report that Wadih El Hage refers that he is
3 sending to Abu Khadija. Remember, this is the same Abu
4 Khadija that speaks to Harun in August 1997 about being scared
5 about Abu al-Fadl al Makkee cooperating with the Americans.
6 So El Hage is talking with another person about his trip to
7 see Bin Laden, that the landowners, the Taliban are treating
8 them very well, them being Bin Laden and the other members of
9 the high and wise command, and he will send a report which you
10 know comes from Abu Hafs.
11 Government's Exhibit 615A-C is a fax on February 26,
12 1997, and this is from Ihab Ali, Nawawi. I have here
13 Government's Exhibit 4, I think it is 11 or 12. This is Ihab
14 Ali. Ihab Ali writes, if we highlight that after the first
15 asterisk there, in reply to the DR's request, please inform
16 him that I am always ready to help out, however, and then he
17 goes on down, and he says I'd like to know what would be
18 expected of me immediately after graduation, please let him
19 tell you, in parentheses, in detail if possible, in a letter
20 and you can thus send it to me. Please understand, I cannot
21 overstress this enough. I must have continuous hands-on
22 experience. February 26, 1997 is right after El Hage gets
23 back from his trip to Pakistan and the DR is a reference to
24 Bin Laden, the director. What Ihab Ali is saying is that he
25 is happy to do what he is asked but he has some conditions.
5531
1 He goes on to say on the next page, at any rate, I'm
2 glad to hear that the DR, director, is doing well and secure,
3 please give him my Salaam, as well as everyone far and near.
4 PS. Is there any way you can find out, and he goes on to
5 describe about somebody else. Then what he says is, please be
6 advised, he is talking about a trip, and I will be waiting
7 your slash director's supply before then. You see subsequent
8 communication between El Hage and Nawawi, where they are
9 talking about Nawawi's concern about how the DR is doing in
10 light of what the Americans are doing with respect to Bin
11 Laden.
12 Government's Exhibit 219A-T. That is a conversation,
13 July 15, 1997. Wadih El Hage is getting ready to go on his
14 next trip to see Bin Laden, and on the fourth page, this is El
15 Hage talking to an unidentified male, the UM there. El Hage
16 is talking about, down towards the bottom -- above that, all
17 of them are sitting before me, it's the story time, and down
18 the third line from the bottom, El Hage says listen, I will be
19 going to see El Hage after two days. The unidentified male
20 says really? El Hage says yes, with God's will.
21 What is instructive about this conversation, Wadih El
22 Hage changes the topic of the conversation. He says I'm going
23 to say al Hajj. The unidentified male doesn't say who? Who's
24 al Hajj. He says really? El Hage says yes, with God's will.
25 The next half, the unidentified male knows exactly what he is
5532
1 talking about. Well, are you going to stay long or what? Al
2 Hajj, H-A-J-J, is a reference to Bin Laden that you see
3 repeatedly, both from Wadih El Hage and others working around
4 Wadih El Hage. That is one of the names that the group uses
5 to call Bin Laden. A good example of that, at the bottom of
6 page 3 of Government's Exhibit 300A-T. This is, for lack of a
7 better phrase, the Harun report, where he is talking about the
8 security situation in the group. Down at the bottom of that
9 page, this is where Harun is talking about how he didn't burn
10 the files because he didn't have authority since Wadih El Hage
11 wasn't around. He says, we did not burn them since they
12 belong to engineer Ali Sabbour, who may have a different
13 opinion. He arrived to the Hajj and he is on his way to us
14 and he will probably arrive next week, God willing.
15 So there you have Wadih El Hage's deputy, Harun, is
16 communicating to the high and wise command, remember, and he
17 is explaining why it is they didn't burn the files, because
18 Wadih El Hage is with the Hajj, Bin Laden. So clearly when
19 Wadih El Hage tells the grand jury under owed oath that he did
20 not have contact with Usama Bin Laden from 1994 to 1997, that
21 is clearly not true. It's a lie.
22 Government's Exhibit 621C-113. I have made reference
23 to the telephone records, but just to show you an example,
24 this is the mobile phone number that we have talked about, the
25 712, 02219. This is a page from a bill that discusses
5533
1 international calls made on 20 April 1997, and you see a call
2 made from the mobile phone that Wadih El Hage uses. This is
3 the mobile phone, by the way, that Harun told Mustafa Mohamed
4 Odeh couldn't use. Then a number, 682505341. It says Indy
5 ship. You remember that was the Indian Ocean region, and you
6 have the mobile phone calling the satellite that we have all
7 talked about.
8 Government's Exhibit 594 is the calls used by the
9 satellite. If you look at the O'Gara records, that is a call
10 to the company that issued the phone. The very first
11 nonUnited States call that is made on the satellite phone is
12 to 411, Khalid al Fawwaz's number. If you go three more calls
13 down, you see the next three numbers are to the 820067 number
14 in Kenya, which is Wadih El Hage's number at Fedha Estates,
15 one of the very first calls made from the Bin Laden
16 headquarters phone to El Hage. There are additional calls, if
17 you look at 594-3, a call on January 30, and there is another
18 call on April 20 which actually lines up with the call we just
19 looked at from the mobile call back to the satellite phone.
20 Government's Exhibit, if we could, 358. This is a
21 letter that is found in the California home of Ali Mohamed,
22 and we talked about some of the other documents that were
23 found off the computer at Ali Mohamed's house. Here is a
24 letter written to dear Haydara, which is one of the aliases in
25 the coconspirator list. Received your letter and was glad to
5534
1 hear from you. However, your letter was sent to me here as I
2 am presently staying in Alexandria. I have been staying here
3 during the past two months. I tried several times to contact
4 you and only after several letters do I realize that you have
5 changed address. At any rate, please give my best regards to
6 your friend O Sam and his copartner and tell him, Sam, that I
7 apologize that I couldn't finish what he requested of me --
8 the letter was explaining, in admittedly bad code, that O Sam,
9 referring to Abu Hafs, for personal reasons persons he
10 couldn't do it. He goes on to say as far as Mr. Wadih, he is
11 presently staying in Texas. He filled me in on his
12 social/business life. He to told me that after having met
13 with and finishing a business deal with Mr. Sam and while
14 returning home he was contacted by one of the opposition
15 company called, another coded reference here, food and
16 beverage industry, FBI you can see of course bolded, based in
17 the US. He was given an extensive interview. This interview
18 was given in East Africa, after which he decided to return
19 home and settle this Texas. There was more of a discussion
20 about how his phone line wasn't working presently. Nawawi is
21 talking to Ali Mohamed in this letter, reflecting the fact
22 that he had been in touch with Wadih El Hage. There is no
23 even reference to El Hage here. There is O Sam and his friend
24 Abu Hafs, and that is found in, of all places, California.
25 If you go to the next page, then there is basically a
5535
1 reference to contact numbers, and of course the other thing
2 about this letter is, it tells you what we talked about
3 yesterday, that El Hage is making sure people know that the
4 Americans had come to him. This message is being passed on
5 from Ihab Ali to Ali Mohamed.
6 So that covers, ladies and gentlemen, the Counts 285
7 and 291. One thing, by the way, the last specification --
8 there are a couple of things. First, there is not only
9 whether or not El Hage had any contact with Bin Laden but also
10 whether or not he told anybody that he had contact with Bin
11 Laden, and he said no, and also whether or not he passed any
12 messages to Bin Laden, and he said no, and you know from the
13 new policy that all those answers were lies.
14 Now we get to -- we are still on the general subject
15 of Bin Laden, Count 300. One question: Have you ever heard
16 him called the Hajj? Have you ever heard of Usama Bin Laden
17 referred to as the Hajj? Answer, no.
18 You know that this isn't true because first of all,
19 ladies and gentlemen, in Government's Exhibit 400 -- this
20 count covers the testimony in 1998. If we go back to
21 Government's Exhibit 400 at page 158, this is Wadih El Hage's
22 testimony before the grand jury in 1997. Question, is Usama
23 Bin Laden sometimes referred to as the Hajj? Answer,
24 sometimes. Then later on, the question, what other names is
25 he known by besides Usama Bin Laden and the Hajj? Answer, the
5536
1 big boss. Which you saw in some of the correspondence and the
2 phone conversations. So Wadih El Hage, having forgotten what
3 he said before, no, I have never heard of him called the Hajj.
4 So we know from some of the documents and conversations that
5 we went through, 219A-T, the telephone conversation in July
6 1997 with the unidentified male, and he says I will be going
7 to see the Hajj, is a conversation involving Wadih El Hage on
8 July 13, 1997, and a person by the name of Tawfiq. On page 3,
9 Tawfiq asks how many days. El Hage says by God, it will be a
10 long trip because I will go to the Hajj first and then he will
11 send me for another job. It could have been almost a month.
12 A month? Yes, approximately. There is no confusion about who
13 it is that Wadih El Hage is talking about, describing the trip
14 in August 1997 that you know he takes.
15 Government's Exhibit 300A-T we looked at. El Hage's
16 deputy uses the same phrasing, the same code for Bin Laden as
17 does Wadih El Hage.
18 Then Government's Exhibit 220A-T, this is another
19 intercepted telephone conversation, and in this conversation
20 an unidentified male is asking Harun if he can use the mobile
21 phone. Harun says this phone with Wadih is for special phone
22 calls with Hajj. Harun says no, you understand, and they go
23 on. That lines up with what you know Harun and Mustafa Fadhl
24 talked about before, about the gem salesman using the phone
25 because it is reserved for phone calls with the Hajj, and we
5537
1 saw the phone record for April 1997, for example.
2 The next two counts we are going to talk about are
3 Counts 286 and 282, and the subject matter of these counts is
4 contact between Wadih El Hage and Abu Hafs and some of the
5 aliases that Abu Hafs used. Count 286, this is 1997 and Count
6 2 is the 1998 testimony. A, did you speak with him in 1994,
7 1995, 1996 or 1997? Answer, no. Then there is, did you
8 communicate with Abu Hafs, listing through 1997, and in 1994,
9 just before I left Khartoum, and at the bottom, after you left
10 Khartoum did you ever communicate with Abu Hafs el Masry by
11 phone, Internet, by mail or by fax? Answer, no. Did you see
12 Abu Hafs when you went back to Pakistan in 197? No.
13 Then there is a question about who is Taysir?
14 Answer, I don't know Taysir. Turning to 92, there is another
15 question about Abu Hafs as Taysir. There is specific
16 reference to a document that was shown to El Hage. The
17 question off the document is, when this letter was written by
18 Harun to Abu Suliman, he is saying that you have taken a trip
19 with Taysir. Answer, I don't know what he is talking about.
20 Specification C, do you have any idea as you sit here today
21 who Taysir might be? Answer, I can't recall. You have no
22 idea who Taysir is? Answer, I have no idea, no.
23 The thrust of these two counts is whether or not
24 Wadih El Hage had any contact with Abu Hafs and whether or not
25 he knows him by some of the other aliases.
5538
1 Kherchtou told you that he saw El Hage and Abu Hafs
2 together in Kenya twice, and he specifically remembered a trip
3 that Abu Hafs and El Hage took to Mombasa. Remember, we
4 talked about this, that they wouldn't even tell Kherchtou what
5 the purpose of the trip was. There was then the story about
6 how Abu Hafs trusted Kherchtou and El Hage but he wouldn't
7 trust Abu Mohamed al Amriki.
8 Government's Exhibit 611-T is a letter, this is a
9 letter that is found among the files, Wadih El Hage's files in
10 the MIRA office in Nairobi, Kenya, in 1998. Dear Mr. Nawawi,
11 how are you and how is your family? Hope things are all right
12 with you all. There is a discussion about Ramadan. Then if
13 you go down to the next half, right at the very top, Taysir
14 and his friends are still hiking. They enjoy it very much.
15 They called me yesterday and greeted us for Ramadan. They
16 called from a place they were having a curry meal.
17 They are talking about a part of the world where the
18 evidence plainly shows that Bin Laden and Abu Hafs have
19 reestablished the Al Qaeda headquarters. Then there is more
20 of a discussion. You will see a discussion, and we will come
21 back to this later, sincerely, Norman. This document has
22 Wadih El Hage's fingerprints on it.
23 Government's Exhibit 632A, if we just take a look at
24 the original of that first, this is a document, you see the
25 date February 21, '97, and you see it is a combination of
5539
1 Arabic and English, written at the bottom, I am waiting for
2 your reply, and it is signed Wadih in English, and the
3 translation is above turning to the translation, 632A-T, dear
4 Mr. Abu Suliman, peace be upon you. I pray you are all well
5 and doing fine. We are all fine here. I was very happy to
6 receive your last letter. I arrived yesterday as I was on a
7 business trip and met with Dr. Atef. He and his friends say
8 hello to you. Harun told me he gave you the telephone number
9 of the furniture and textile company. Etc., etc. We know
10 Dr. Atef is Abu Hafs. We reference the conversation with
11 Wadih El Hage giving the satellite telephone number because
12 Dr. Atef has moved the clinic and Harun might want to move his
13 family there. So there you have what is specifically an
14 attempted coded reference to Abu Suliman that he was on a
15 business trip and met with Dr. Atef, and to assure that
16 Dr. Atef and others in the headquarters in Afghanistan say
17 hello.
18 Then you have Government's Exhibit 3B-T, the Taliban
19 report found on El Hage's computer. It discusses all the
20 dynamics of the Taliban in Afghanistan. On El Hage's computer
21 you see a document that is signed there your brother Abu Hafs.
22 Then Government's Exhibit 245-T is a translation of the report
23 that was sent out that we know from that letter to Abu
24 Khadija. You see the report is identical in substance but
25 there is no Abu Hafs at the bottom, because El Hage wants to
5540
1 make sure if for some reason there is a headache that somebody
2 may get, nobody can connect him to Abu Hafs or Khadija or
3 anybody else.
4 Government's Exhibit 611 is the letter we just read,
5 and that's the letter that Taysir and his friends are still
6 hiking. One of the references to Abu Hafs, we know al Hajj is
7 Bin Laden. Then Government's Exhibit 438A, this is an Arabic
8 letter and 438B is the translation. What you see in this
9 letter, and this is from Harun to Ihab Ali, Abu Suliman
10 Nawawi, and Harun says, there is a greeting and he says at the
11 bottom of the first page, the fish people are doing all right.
12 However the project has failed and they are now reorganizing
13 things to start a new business trip. So there is a reference
14 from Harun talking about the fish people in the Al Qaeda cell
15 in East Africa. He says Wadih went on a trip, he is with
16 Taysir, and their situation is very comforting. They are
17 doing well and in good health. They live in their own old
18 town. Hyatabad, Kherchtou talked about Hyatabad. It is in
19 Pakistan, on the border. So you have Harun keenly aware where
20 El Hage is. He is not going to say the military command of Al
21 Qaeda, and he says Taysir, and of course Ihab Ali knows who it
22 is.
23 Other references, and now we will go to the phone
24 books and some of the phone records. El Hage's phone book,
25 the pop-up phone book, Government's Exhibit 304, page 27 of
5541
1 that. There is a reference right there. It will be under
2 listing T. Taysir, 272177. We will see again, looking at the
3 mobile phone records for the special phone that is supposed to
4 be used for El Hage -- this is Government Exhibit 621C. You
5 see a call from a number in Pakistan, and this is on 3
6 February 1997, just before El Hage goes on his trip to
7 Pakistan, and then the 521, the country and city code, 372177,
8 and you see it says Pakistan. So looking at just the listing
9 in El Hage's own address book, when he says I don't know
10 Taysir, it's impossible to square that with what is in his
11 address book and the telephone records when he is calling the
12 person he says is Taysir right before he goes to visit Bin
13 Laden in February 1997.
14 The wiretap calls. Government's Exhibit 205A-T.
15 This is a conversation that takes place November 12, 1996. At
16 the bottom of page 1, Saif al Islam and El Hage speaking to
17 one another, and Saif al Islam says do you have any news for
18 me from our brother Taysir? At the top of the second page, El
19 Hage doesn't say, as he did in the grand jury, I don't know
20 Taysir, he says no, by God, it's over three months, Suliman
21 sent us a fax in which he said everything was good and their
22 situation was good.
23 Government's Exhibit 207C-T, and this is a
24 conversation on December 17, 1996 there is something
25 important, you can decide it, Saad interrupts and says he is
5542
1 here, and El Hage doesn't say who, he says but the people
2 concerning the project, the project's money, and they go on to
3 talk about whatever it is that the project is, and of course
4 it involves Dr. Atef, one of the aliases, you know, for Abu
5 Hafs and Taysir. Then Government's Exhibit 218-T, we won't go
6 through it again. There is the conversation with El Hage.
7 That's the satellite phone. Government's Exhibit 209A-T, this
8 is a conversation between April El Hage and Abu Khadija, and
9 we know that Abu Khadija, as per witness Kherchtou, one of the
10 aliases for Abu Hafs, and we know that after that conversation
11 April El Hage, after dialing again and again, tells Wadih El
12 Hage, Abu Khadija called the other one.
13 Government's Exhibit 594 shows the call that we just
14 looked at did originate from the satellite phone. If you line
15 up what is on the satellite phone records with what is on that
16 conversation that is intercepted, you see that call came from
17 the satellite phone to Bin Laden headquarters phone.
18 Finally, Government's Exhibit 221A-T, this is a
19 conversation on September 18, 1997, one week before El Hage
20 testifies in the grand jury, and the caller says Abu Hafs says
21 when he is coming here, April Hage says I don't know. The
22 unidentified male says you don't know. And then down at the
23 bottom, unidentified male, fourth line from the bottom, says
24 fine, tell him Abu Hafs called you. April El Hage says OK, if
25 God willing, Mohamed Atef. That makes the link between Abu
5543
1 Hafs and Mohamed Atef.
2 THE COURT: Ladies and gentlemen, we will call it a
3 day. Have a good evening. We are adjourned until 10 a.m.
4 tomorrow.
5 (Jury excused)
6 THE COURT: Mr. Karas, how are you doing on your
7 timetable?
8 MR. KARAS: Your Honor, we will probably need only
9 about another hour or so in the morning.
10 THE COURT: So you will finish before the mid-morning
11 break tomorrow?
12 MR. KARAS: I believe that is correct.
13 THE COURT: So after the mid-morning break we will
14 have a closing statement on behalf of El Hage, who has
15 requested three to four hours.
16 MR. RICCO: Your Honor, that should take us through
17 the balance of the day. Should we be prepared for Monday
18 morning?
19 THE COURT: Balance of the day. Tomorrow is
20 Thursday?
21 MR. RICCO: Yes.
22 THE COURT: Yes.
23 MR. RICCO: The only reason I mention it --
24 THE COURT: I won't make you start at 4:00.
25 MR. RICCO: That's all right, but I had mentioned to
5544
1 you that I had an appointment tomorrow.
2 THE COURT: Anything further?
3 MR. WILFORD: Your Honor, there were some objections
4 to Mr. Karas's summation that I wanted to put on the record.
5 THE COURT: Haven't the objections and the rulings
6 been on the record?
7 MR. WILFORD: Not these.
8 THE COURT: Go ahead.
9 MR. WILFORD: We didn't want to interrupt his
10 summation.
11 THE COURT: These are objections that I will be
12 hearing for the first time?
13 MR. WILFORD: Yes. Your Honor, the first objection
14 deals with the government's argument, which appeared to almost
15 be an inverse Pinkerton argument, which they couched in the
16 state of mind, talking about the existence of the conspiracy,
17 and Mr. Karas intimated to the jury that existence of the
18 conspiracy could be proven by the fact that there was in fact
19 a bombing of the embassy.
20 THE COURT: I don't recall that. Tell me what
21 portion --
22 MR. WILFORD: Yes. When he was talking, when
23 Mr. Karas was discussing with the jury Count 1, and he was
24 talking about the existence of the conspiracy.
25 THE COURT: Yes.
5545
1 MR. WILFORD: It was this morning, during his
2 presentation during the morning portion of the day's
3 proceedings.
4 THE COURT: He was dealing with Count 1, was he not,
5 which is the conspiracy?
6 MR. WILFORD: Yes, the existence of the conspiracy.
7 THE COURT: And you are saying that the fact that
8 there was a bombing is irrelevant to the existence of the
9 conspiracy?
10 MR. WILFORD: Not irrelevant, that it proved the
11 existence of the conspiracy.
12 THE COURT: You will have to give me -- I don't
13 recall him ever saying in substance you know that because the
14 embassy was bombed that there was a conspiracy to bomb, but
15 that would be a reverse Pinkerton. If that was said, I must
16 say I didn't draw that inference.
17 MR. WILFORD: I will get the exact page reference to
18 your Honor.
19 Additionally, Mr. Karas indicated that association
20 was a basis for membership. That was an argument that was
21 being made. He said that the intersection of various people
22 proved the existence of the conspiracy, and the court is going
23 to charge just the opposite, that mere association does not
24 prove the conspiracy. That was an argument that the
25 government put forth to the jury and I think at the very least
5546
1 we ought to have a curative instruction on that.
2 THE COURT: Let's deal with these one at a time. The
3 jury will be charged, because it is the fact, that mere
4 association without participation does not make one a
5 conspirator. But that does not mean that association is
6 irrelevant, and it certainly doesn't mean that association
7 during periods of time when material which is regarded as
8 secret and important and to be shared only with fellow members
9 is not important. Mere association is not enough, and, as you
10 know, because you have seen my charge and it is standard
11 language, the jury will be told that association without more
12 is not enough. But certainly it was relevant to the existence
13 of a conspiracy of who met and what were the topics discussed
14 when they met and in front of which persons the conversations
15 took place.
16 Overruled.
17 MR. WILFORD: Your Honor, the other objection is that
18 the government has constantly during its argument blurred the
19 lines between Al Qaeda and the conspiracy charged in Count 1.
20 Count 1 specifically charges Al Qaeda along with other groups
21 and other people known and unknown contributed to the
22 conspiracy, and several times Mr. Karas blurred that line and
23 said the Al Qaeda conspiracy, and seemed to indicate to the
24 jury that Count 1 was an Al Qaeda conspiracy, and that is
25 simply not what is charged and that is simply not the case
5547
1 here.
2 THE COURT: The indictment says from in and about
3 1989 until the present a group called itself Al Qaeda --
4 MR. WILFORD: That is in the background portion, your
5 Honor, but specifically in Count 1 it says Al Qaeda along with
6 other groups.
7 THE COURT: Yes, and?
8 MR. WILFORD: The argument that seemed to be advanced
9 by the government was that Al Qaeda was the conspiracy in
10 Count 1, and that is simply not the case.
11 THE COURT: I think the jury was clearly told by the
12 government that it did not take the position that Al Qaeda and
13 the conspiracy were coterminus and that membership in Al Qaeda
14 made you a member of the conspiracy or vice versa. Again, you
15 have to show me specific statements that were made.
16 Mr. Karas, is that something that you said?
17 MR. KARAS: Your Honor, I made very clear that
18 membership by way of bayat was not sufficient to put one in
19 the conspiracy.
20 MR. WILFORD: Your Honor, tomorrow I will have the
21 transcript and citations to support my position.
22 THE COURT: Very well. Anything else?
23 Mr. Ricco, do you really not want to make a motion?
24 MR. RICCO: Oh. I'm sorry, your Honor. At the end
25 of all the evidence in the case, I don't think any of us
5548
1 made -- your Honor, on behalf of the defendant Odeh we make a
2 Rule 29 application. What we ask the court to do is to
3 readopt the substantive arguments that were advanced in
4 connection with that Rule 29 that was made at the close of the
5 government's case and ask the court to adopt those arguments
6 now at the end of all the evidence.
7 MR. DRATEL: Your Honor, we do the same --
8 THE COURT: I assume that is on behalf of all the
9 defendants and it is denied. The significance of its being
10 made at this procedural stage will be for someone else to
11 determine.
12 Anything else? We are adjourned until tomorrow
13 morning.
14 (Adjourned until 10:00 a.m., Thursday, May 3, 2001)
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