Note: Today the Court Reporter reissued the transcript for Day 40 to correct page numbers. Download the corrected version: usa-v-ubl-40.htm
8 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 41 of the trial, May 8, 2001.
See other transcripts: usa-v-ubl-dt.htm
5808
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 8, 2001
10:00 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
5809
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
5810
1 (Trial resumed)
2 (Jury not present)
3 THE COURT: I have received a letter from the
4 government on the timing of the penalty phase, and we will
5 take that up at 4:30.
6 MR. BAUGH: We would join in the government's
7 request.
8 (Jury present)
9 THE COURT: I am not sure what post May 17, May 19
10 means.
11 (Jury present)
12 THE COURT: Good morning.
13 JURORS: Good morning.
14 THE COURT: Mr. Cohn on behalf of Mr. Al-'Owhali.
15 MR. COHN: May it please the court, ladies and
16 gentlemen of the prosecution, colleagues at the defense table,
17 Mr. Al-'Owhali.
18 Listening to Mr. Ricco yesterday, as he discussed
19 sleepless nights, it became apparent to me that I ought to
20 start this discussion with two words and what they mean. The
21 first word is in communicado, which Mr. Ricco said you must
22 all understand, and as he said that, Ms. Gasiorowski, the
23 young blond lady over there, the brains of our operation, said
24 I'm not sure, some of them looked like they didn't. I thought
25 I would start because it is important to me later on that you
5811
1 do understand what it means. In communicado means simply
2 being held isolated and unable to communicate with anyone.
3 That is the meaning of in communicado, at least insofar as we
4 are going to discuss it.
5 The other word I thought we would talk about,
6 seemingly having nothing to do with this case, is the word
7 serendipity. Serendipity is when you find something of value
8 at an unexpected place, at an unexpected time. Having spent
9 the same sleepless nights as Mr. Ricco, I sat there even
10 yesterday, wondering what I was going to say to preface my
11 remarks about what is really important about the case. And
12 although I was scheduled to follow Mr. Ricco, and had he been
13 somewhat less prolix, I would have gotten up yesterday if we
14 had finished a half hour earlier. I still didn't really know,
15 I didn't have a handle on what to say to make you understand
16 what it is that from the standpoint of Mr. Al-'Owhali's case,
17 from Mohamed's case, I think you have to do, because it is
18 somewhat different than the other cases here. This is a joint
19 trial and the judge will tell you that it is four individual
20 trials, and technically that is true, but in reality, every
21 trial here impacts on the others. For instance, yesterday Mr.
22 Ricco, in referring to everybody fleeing, said, and that young
23 man over there, talking about Mohamed, didn't flee because he
24 didn't have a family, he's a young man. I got to tell you I
25 was somewhat annoyed by that. After all, if Mr. Ricco in the
5812
1 reaches of the night when we both weren't sleeping had called
2 me and said Fred, I'm going to say this about Mr. Al-'Owhali,
3 do you mind, I would have said yeah, do you have to do it, and
4 if he said yeah, he did, because it was for his client and he
5 represents his client, I would have understood that. And if
6 he didn't he might have said well, if I don't have to do it
7 then, you know, I don't need it, I'll forgo it.
8 That's the serendipity that I am talking about,
9 because after getting annoyed I realized that I had found
10 something of value in a strange place. Because if he could
11 make that mistake, and make a judgment not knowing
12 Mr. Al-'Owhali's case, having focused on his own case, what is
13 that to say about you who didn't know the law, who haven't yet
14 heard the law on conspiracy and on statements made by
15 defendants and their voluntariness?
16 MR. RICCO: Your Honor, I object and request that my
17 understanding be stricken from the record.
18 THE COURT: I think that the ruminations of what it
19 is that Mr. Cohn might have said to Mr. Ricco is really quite
20 beside the point, and the objection is sustained.
21 MR. COHN: What does it mean about you, who don't
22 know the case, and what you have heard is testimony in this
23 courtroom that Mohamed said that he did it, that he
24 essentially assisted in the bomb truck, went out, put up flash
25 grenades, and the bomb went off. And you heard other things.
5813
1 What does it say about you, because how can I stand up here in
2 the face of that.
3 The judge has told you, don't formulate your opinions
4 yet. But what I learned yesterday serendipitously is that
5 really I have to confront that issue with you and tell you
6 something that we generally don't say, that I would be
7 surprised if there were two of you in this jury box who did
8 not at least surmise and assume that Mr. Al-'Owhali is guilty.
9 Does that mean that's a legal opinion? No. Does that mean
10 that the presumption of innocence has been stripped from him
11 at this point? No. But I would be a fool, and not the kind
12 of fool that Mr. Ricco talked about yesterday if I did not
13 recognize that.
14 So what I wanted to talk to you about first is that,
15 and tell you that my job here is to make you ignore that
16 assumption and focus on the law. Not on justice, not on
17 morality, but the law. People sometimes use, and the judge
18 may use, or may have in the past -- it's been so long --
19 called you the judges of the facts, and essentially that you
20 are. In most cases as judges of the fact it means that you
21 find out what is the truth and what isn't, what are the
22 probabilities and what aren't, and you apply those facts and
23 come up with a verdict of guilty or not guilty as to the
24 defendant.
25 In this case I am asking you to be more judges than
5814
1 judges of the fact. The judge will tell you the law and you
2 will apply it. I don't mean to intrude on that and if I did I
3 would be brought up short without an objection from anybody.
4 The judge will charge you a couple of things. He
5 will charge you on the law of conspiracy, which is highly
6 complex and which I don't speak for any other lawyer here but
7 which I at least understand imperfectly, and I am not sure
8 that anybody can grab it all at once. He will also charge you
9 on something called voluntariness. He will say that if you
10 find that a statement is made involuntarily, you may give it
11 such weight as you wish, if any. That means you may disregard
12 it altogether.
13 What I am going to do this morning is talk to you
14 first about the conspiracy charges, all four of them, and I am
15 going to ask you to assume that what you heard from
16 Mr. Al-'Owhali, allegedly, through the lips of Mr. Gaudin, are
17 the facts. They are evidence, and I am going to talk to you
18 about why I don't believe that you should convict on any of
19 the conspiracy counts because they are insufficiently pleaded
20 by the government. I am not going to stand here and contend
21 that there is evidence in this case, or lack of evidence, that
22 Mr. Al-'Owhali did not participate in the bombing. What I am
23 going to say to you first is that even with what he said,
24 given the way the government has pleaded this case, you must
25 acquit on the conspiracy counts. Then what I am going to talk
5815
1 about is the voluntariness of the confession, ask you to
2 consider whether it was involuntary, and, if involuntary, ask
3 you to disregard it. And if you disregard it, then you must
4 find not guilty because there is no other evidence of any
5 import than the statement of Mr. Al-'Owhali against his own
6 interest. We will talk about that.
7 That's real hard. You know, I mean, two defense
8 lawyers so far have stood up and told you you need courage,
9 it's an American jury. I have a great deal of faith that you
10 can do this, if you must know the truth. But that's why I say
11 that this is a matter of law and not morality. This is a
12 matter of law and not justice. If the judge charges you as I
13 have said he would, then you must consider under your oaths
14 whether or not you can do this. Can you? I don't know. Will
15 I know if you don't? Probably not. But that is what I am
16 asking you to do.
17 The first part, therefore, is the conspiracy. What
18 is a conspiracy? You have been told before and I will tell
19 you again, insofar as it matters for this part of the
20 discussion. A conspiracy is an agreement between people to
21 commit an illegal act, and in most cases something is done by
22 a conspirator to further that act. It is not the crime in and
23 of itself. You can have a conspiracy to commit murder without
24 completing the murder. The murder, if it exists, is a
25 separate crime.
5816
1 Under the evidence, using Mr. Al-'Owhali's statement,
2 there is evidence that Mohamed joined some conspiracy, and
3 that conspiracy is a conspiracy to bomb the Nairobi embassy.
4 Well, isn't that enough? The answer to that is no, it's not.
5 The government must prove beyond a reasonable doubt that
6 Mohamed joined the conspiracies as charged, and the
7 conspiracies charged are all broader than that. The
8 indictment says in the preamble, or introductory portion, at
9 all times, at all relevant times, from in or about 1989 until
10 the date of filing of this indictment, an international
11 terrorist group existed which was dedicated to opposing
12 nonIslamic governments with force and violence.
13 You know from the statement that Mohamed was born in
14 1978, '77. At the time this terrorist organization was formed
15 he was 12. Did he join that conspiracy then? Hardly likely.
16 We will talk about the relationship backwards, because the
17 judge at some point will tell you that of course somebody who
18 joins a conspiracy later, after its beginning, adopts the
19 prior acts of the conspiracy, if they should have known about
20 them, if they did know. We will talk about that more.
21 That's the introduction, it's not really the
22 conspiracy. They have charged four conspiracies, and each
23 conspiracy count starts with the following language. I've got
24 this in two forms. The first form is to show you with all the
25 extra stuff in it that we are not misquoting, and the second
5817
1 way we have dealt with it is to extract the stuff so you have
2 the meat and here it is. It says:
3 From at least 1991 until the date of filing of this
4 indictment ... in Afghanistan, the United Kingdom, Pakistan,
5 the Sudan, Saudi Arabia, Yemen, Somalia, Kenya Tanzania,
6 Azerbaijan and elsewhere ... I actually pronounced Azerbaijan,
7 that's terrific -- Mohamed Rashed Daoud Al-'Owhali, ...
8 together with other members and associates of Al Qaeda,
9 Egyptian Islamic Jihad, and others known and unknown to the
10 grand jury, unlawfully, willfully and knowingly combined,
11 conspired, confederated and agreed to kill nationals of the
12 United States.
13 Every count starts with that and every count has the
14 same overt act. How are they different? They are different
15 because the objectives of each conspiracy, says the
16 government, are different, and they have charged the
17 conspiracy four different ways.
18 If you believe the introduction, Mohamed was 14 at
19 the time, from at least 1991, and my guess is you don't really
20 believe that he was a knowing member of Al Qaeda or an
21 associate or doing anything in support of whatever they claim
22 that Mr. Bin Laden was doing in those particular years. But
23 it's important that a person joins the conspiracy that he is
24 proven to have joined and that if he is not in a position to
25 appreciate that other conspiracy and he joined some other
5818
1 conspiracy, he is not guilty of the conspiracy charged. That
2 is maybe hard for you to accept. My heavens, man said he
3 participated in the bombing. He assisted, he rode in the
4 truck, he went out with flash grenades. How can we do that?
5 Maybe you can't. But if you accept my logical arguments, then
6 perhaps you must.
7 In addition, if the conspiracy charge is in fact a
8 collection of smaller conspiracies, multiple conspiracies, and
9 the judge will charge you about multiple conspiracies, then
10 you must acquit. What does that mean? I will take a look at
11 it later in a different way. But let's take a look at the
12 objectives of the conspiracies charged in each of the four
13 conspiracy counts. This is what is charged in Count 1. It
14 was a part and object of said conspiracy that the defendants
15 and others, known and unknown, would and did murder United
16 States nationals.
17 Seems simple enough. Does it encompass this
18 particular act? Well, US nationals were killed, and my guess
19 is that one could logically argue that if you intend to bomb
20 the United States Embassy in the middle of the day you intend
21 to kill US nationals. But does this mean that was part of
22 this conspiracy? Under this object, any US national anywhere
23 killed anyhow is part of that conspiracy. Is that what
24 Mohamed Al-'Owhali joined? Did he intend that? Was he in a
25 position to know that this conspiracy had lasted for years,
5819
1 according to the government's theory, and that they were going
2 to kill nationals everywhere, in all these other countries
3 that we talked about, Azerbaijan and Somalia? Here is a man
4 who at the time of the bombing was 20 years old. As we will
5 talk about later, he didn't know anything about the object at
6 the time until he was actually in place in Kenya after about,
7 I think, the 3rd of August of that year. He knew that there
8 was a mission, he was told he was doing a mission, but did he
9 know about all this other stuff? Is this one conspiracy?
10 Think about it. We are going to talk about it later in the
11 context of the other conspiracies that are charged, because
12 Count 2 says:
13 It was a part and objective of said conspiracy that
14 the defendants and others, known -- sorry, we did the typo,
15 not the government -- known and unknown, would and did (1)
16 kill officers and employees of the United States and agencies
17 and branches thereof while such employees were engaged in and
18 on account of the performance of their official duties, and
19 persons assisting such employees in the performance of their
20 duties, in violation of the section of law, including
21 members -- and here's the other part: Including members of
22 the American military stationed in Saudi Arabia, Yemen,
23 Somalia and elsewhere, and employees of the United States in
24 Nairobi, Kenya and Dar es Salaam; and (2) kill internationally
25 protected persons as that term is defined.
5820
1 Look, the government had a choice. How do you charge
2 this indictment? They made that choice for reasons that are
3 known to the government. Do you think on the evidence that
4 you saw here that Mohamed Al-'Owhali knew anything or joined
5 any conspiracy or there is any evidence today that he was
6 going to kill American military stationed in Saudi Arabia,
7 Yemen and Somalia?
8 Let's talk about Somalia briefly. It's the only
9 other evidence in the case of other stuff. It is 1993. He
10 was 16 and still in school. There is no evidence or
11 suggestion by the government that he participated in training
12 in Somalia. There is no indication that he was in Somalia.
13 Did he join that conspiracy?
14 Look, it's hard, folks. He said he participated in
15 the bombing. And you say we're Americans, and even if we
16 weren't Americans, there are a serious amount of dead people
17 out there, how can we do that? The way you can do it is to
18 follow the law. I am not saying if you follow the law you
19 will do it. It's your choice after listening to the evidence,
20 after analyzing the evidence, after listening to me, to Mr.
21 Fitzgerald after he stands up for his rebuttal summation. But
22 can you do it? Yes. Will you do it? Only your conscience
23 will tell you.
24 Count 3. It was part and object of said conspiracy
25 that the defendants and others, known and unknown, would and
5821
1 did: (1) bomb the embassies in Nairobi, Kenya, and Dar es
2 Salaam, Tanzania, and employees of the American government
3 stationed at those embassies; and (2) attack American military
4 facilities in the gulf region in the horn of Africa and
5 members of the American military in those other places again.
6 This is the clearest indication that the government
7 had that if they wanted to they could charge a conspiracy to
8 bomb the embassy in Nairobi, and maybe under the evidence,
9 under a stretch of the evidence Tanzania, because you may
10 remember that in Mr. Al-'Owhali's statement he said that he
11 learned of the Tanzanian bombing when he learned about his own
12 mission, which was about August 3. So at least there is some
13 evidence that he knew about it and maybe he joined that
14 conspiracy if it was retroactively.
15 But that's not the conspiracy they charged.
16 Everywhere you turn in this indictment they charge this
17 overreaching conspiracy, which may have something to do with
18 Mr. Bin Laden, it may have something to do with other members
19 of that conspiracy, if they were, may have something to do
20 with the shura council of Al Qaeda. But it doesn't have
21 anything to do with what the evidence shows Mr. Al-'Owhali
22 knew that he joined or should have known that he joined. When
23 I say should have known, because the judge will charge you at
24 some point, you can't stick your head in the stand. You can't
25 be an ostrich, to take somebody else's case for a second, and
5822
1 ignore something you should have known, and say you didn't
2 know, you closed your eyes to the facts. There was no
3 evidence here of Mohamed Al-'Owhali before May 1998, and the
4 only evidence of that, and we will talk about that in a
5 second, is that in May he went to Yemen. Nothing about
6 anything that he did there. Some evidence that he was trained
7 in camps to fight in either Azerbaijan or Afghanistan against
8 the remnants, the leftovers, the nominees of the then Soviet
9 Union. But that didn't have anything to do with this, killing
10 Americans. It had to do with defending his faith at that
11 particular time, against the enemy of his faith at that
12 particular time.
13 Count 4. It was part and an objective of said
14 conspiracy that the defendants would and did bomb American
15 facilities anywhere in the world -- anywhere in the world,
16 including, not limited to but including the American embassies
17 in Nairobi, Kenya and Dar es Salaam, Tanzania, and again
18 attack military installations and all those other places; and
19 (3) -- there is a third one this time -- engage in such
20 conduct with a result of such conduct directly causing the
21 death of persons in violation of Title 18, etc.
22 Once again, ladies and gentlemen, I am not suggesting
23 to you that there is no credible evidence that he participated
24 in the bombing. I am telling you that the government for its
25 own reasons hasn't charged the right conspiracy. Once again,
5823
1 I keep saying it over and over because it preys on my mind, I
2 don't know how you ignore that. But my suggestion is that
3 after you hear the law you at least know that you are going to
4 have to try.
5 Mohamed Al-'Owhali was born on January 17, 1977. I
6 knew I would get the right date. You see here a little time
7 line that starts with the date of his birth. It doesn't mean
8 anything. It is just a graph that shows when it was he is
9 alleged to have started doing anything with this conspiracy,
10 and you will see that in May of '98 he was present in Pakistan
11 during an ABC News interview, and in July he went from Karachi
12 to Nairobi and he got there, you may remember, a few days late
13 because he had missed his plane. In between, essentially
14 there is nothing of import as to Mohamed Al-'Owhali. How is
15 he supposed to know about the scope of this conspiracy? The
16 government seeks to hold him criminally responsible for the
17 activities of people long before he can be held to account for
18 them.
19 On July 31, he traveled under a false passport to
20 Karachi. What evidence is there that Mohamed knew of greater
21 conspiracies? Frankly, there is none at all. It's all
22 innuendo. Do you think that Usama Bin Laden confided in this
23 young man who was then 20 years old, about the scopes and
24 desires and his tactics? Assuming that everything the
25 government tells you about Somalia is true, just assuming that
5824
1 for the moment, what makes you think this young man knew
2 anything about it? Remember, Mohamed was not a member of Al
3 Qaeda; it was never suggested that he was. He did not make
4 bayat. He did not know about his mission until just before
5 the bombing, and he didn't know the object -- when he was in
6 Pakistan. He didn't know the object of it until he came to
7 Nairobi.
8 Mr. Karas told you, and I think I am quoting, if not
9 it's close, he said he did not make bayat because he did not
10 want to wash cars, he wanted to deliver bombs. That bit of
11 sarcasm is cute but it doesn't advance our search here much.
12 I mean, you know that Mohamed was a defender of his faith. He
13 wanted a military mission to defend it. It didn't matter what
14 military mission it was in the context of the scope of the
15 conspiracies, he wanted a mission. If they had told him to go
16 to some other place he would have considered that. He went
17 where he went. Did he know the scope of the entire
18 conspiracy? Did the fact that he didn't make bayat and wanted
19 a military mission to defend his faith, did that make him know
20 about the scope of this conspiracy, about the motives of Bin
21 Laden? It didn't. It's a stalking horse, as are many pieces
22 of the collateral evidence here. It may mean that he joined a
23 much more limited conspiracy that the government is yet to
24 define. The government doesn't charge it that way. You
25 remember, the government introduced some evidence of Harun
5825
1 that Mohamed was bragging about something that happened in
2 Somalia. Is it proof of something that he knew or should have
3 known and adopted? It isn't.
4 How many conspiracies have we? We don't know. But
5 in each one that is charged here, there are clearly more than
6 one, and the only one that he would be responsible for is the
7 bombing of the embassy. Since that is not charged as a single
8 conspiracy, I would suggest that he has to be acquitted of the
9 conspiracy counts.
10 Look at it in a way as a wheel with a hub and spokes
11 at the rim. At the hub, there are people who know everything
12 that is doing, perhaps Bin Laden and some of his closer
13 associates. At the end of the spokes on the rim, at the end
14 of each spoke there is another little conspiracy, a conspiracy
15 perhaps for Somalia, a conspiracy perhaps for the Kenyan
16 bombing, a conspiracy for something in Yemen, a conspiracy for
17 something in Azerbaijan. It is the government's obligation to
18 prove that all of the alleged conspirators at the end of the
19 spokes should have known from the nature of the conspiracy
20 about what is happening around, or at least that they should
21 have been able to surmise it.
22 Classic example is in a drug conspiracy. In a drug
23 conspiracy you have the big dealers in the beginning, in the
24 middle, and at the end of each spoke you have a drug spot.
25 Clearly they know at the end of each spoke you have other drug
5826
1 spots and they should have known that. If they don't know or
2 shouldn't know, there is more than one conspiracy. That is a
3 question of fact for you as the judges of the fact to struggle
4 with in this case.
5 There is another way of looking at this. What
6 conspiracy did he join, given the best view of the credibility
7 of the evidence as presented by the government? We will talk
8 about the credibility and how they got it in a little while.
9 Could he have joined a conspiracy involving the events in
10 Somalia? Certainly not, and the judge is going to tell you
11 there are a number of factors you have to consider. One is,
12 was there a conspiracy, did it exist, what was the scope, and
13 the other is did the defendant join that conspiracy. That is
14 what this is about. This is about joining a conspiracy. What
15 did he join? He could only join what he knew about. He can't
16 join what he doesn't know about.
17 What could he have joined? What did he know? In his
18 statement, which we are still discussing for the purposes of
19 the conspiracy law, he said there were four groups in a cell.
20 Here is the structure of an Al Qaeda cell, and you got that
21 from Fadl. There is the intelligence section, the planning
22 and preparation section, the administration section and the
23 execution section. You know that Mr. Al-'Owhali had to be in
24 the execution section. He is not in any of the planning
25 sections.
5827
1 There is evidence in the case, and I forget where,
2 that the execution section doesn't do anything except do the
3 job, and in this case die, or is supposed to die.
4 We give you the trial transcript page only because we
5 want to make sure that you know that we are not misstating the
6 evidence, and there are times when my recollection may vary
7 with yours or with Mr. Karas. It is your recollection that
8 controls. Nobody, I am sure, has misstated the evidence
9 knowingly, although there are times when the government's
10 recollection, I suggest, is at fault, and we will talk about
11 that too.
12 In a real way, Mohamed was the most minor participant
13 in this event in terms of what we knew. Remember, he reported
14 to Azzam, who died, and Azzam knew about the mission, there is
15 evidence in the case, months before, and what the mission was.
16 What conspiracy did Mohamed actually join? Could he have
17 known the full scope of the conspiracies as they are charged,
18 or was he in a position in which he could not have known, or
19 should have known even if he wasn't told?
20 Remember how decisions are made in Al Qaeda. This
21 is, I guess, also from al-Fadl. There is the emir, and then
22 there is the shura council. Underneath the shura council are
23 the various committees. I guess the one that would be in
24 control of this one is the military council. These are all Al
25 Qaeda members. They are the ones making decision. Beneath
5828
1 all them are the other Al Qaeda members who aren't on
2 committees, they just take orders, and who don't formulate
3 policy. Somewhere else are the non-Al Qaeda members, who the
4 government calls associates. What did he know? What could he
5 know? Not much.
6 You remember the statement by Mr. Odeh that is in
7 evidence, Government's Exhibit 6, and it is written in the
8 form of a 302, a report by Mr. Anticev. It was put into
9 evidence by Mr. Odeh's counsel. Odeh told people, told
10 Anticev that there were two classifications of people in the
11 bombings. One was intelligence and planners, the others who
12 did the bombing itself, who were good Muslims but did not have
13 the skills to make themselves otherwise useful.
14 Where is Mr. Al-'Owhali in all this? What did he
15 join? The planners, the knowers --
16 MR. RICCO: Your Honor, objection, based upon --
17 THE COURT: The jury has been told and will be told
18 again that statements made by defendants to law enforcement
19 after their arrest may be considered only with respect to the
20 person making the statement. Therefore, what Odeh said to law
21 enforcement is something you may consider with respect to
22 Odeh. It is irrelevant with respect to Al-'Owhali.
23 MR. COHN: The planners, the knowers, the people who
24 were to continue in this conspiracy if in fact one overarching
25 conspiracy existed, all fled. Listen to Mr. Karas, who said,
5829
1 quote, and this is at 5267, lines 16 through 18:
2 This is what I was saying earlier, ladies and
3 gentlemen. You see the participants in this case come up
4 early. They are participants in the conspiracy to murder US
5 nationals.
6 The government may say I am taking that out of
7 context, but it's the truth. Mr. Al-'Owhali did not come up
8 early, Mr. Al-'Owhali did not take part in that conspiracy.
9 It is fact that United States nationals were killed. It is
10 not a fact that the conspiracy that he joined, if you take the
11 evidence as it is presented, was to kill United States
12 nationals everywhere, any time, anyhow.
13 The government also said during its summation things
14 about motive and how you knew that Mr. Al-'Owhali's motive was
15 the same as Mr. Bin Laden's. The government said at page
16 5336, lines 4 through 17:
17 You know that Bin Laden had the headquarters in Sudan
18 up until some point in 1996 when he goes to Afghanistan and
19 issues the declaration of jihad. What he tells you in this
20 statement on CNN is that he blames the United States
21 government for putting pressure on the Sudanese, for driving
22 him out of Sudan and into Afghanistan. He takes note of the
23 fact that part of the pressure was in removing the diplomatic
24 presence from Khartoum and sending it to Nairobi. In March of
25 1997 Bin Laden is keenly aware of that move by the United
5830
1 States, and I submit to you, says Mr. Karas, it provides a
2 powerful motive that Bin Laden had to hit the American Embassy
3 in Nairobi in 1998 to get back to the United States for its
4 diplomatic pressure on the Sudan that caused him to have to go
5 to Afghanistan.
6 The government then refers to an obscure part of
7 Mr. Al-'Owhali's statement that some of the people who were at
8 the embassy had been in the Sudan, and equates that therefore
9 with adopting and knowing of Mr. Bin Laden's motives
10 altogether. The motives that they ascribe to Mr. Bin Laden,
11 which they need not prove beyond a reasonable doubt here
12 because he is not on trial, are very sophisticated motives
13 with long-range policy plans, long-range objectives, and maybe
14 it is, maybe it isn't. But the fact that there were some
15 people who had been in the Sudanese embassy and therefore
16 were, if you believe the statement as it is given, and we will
17 talk about that in a bit, proper objectives for the bombing,
18 is not the same. It does not mean, it doesn't come close to
19 meaning that Mohamed knew about the objectives of the entire
20 conspiracy, or adopted them, or approved them, or disapproved
21 them.
22 If there is a reasonable view of the evidence, the
23 evidence that I am asking you to consider, which I will soon
24 tell you you can't consider, if you can understand that kind
25 of legal jujitsu, was at best a core, a central hub conspiracy
5831
1 which may have included the shura council, members of Al Qaeda
2 to implement, and subconspiracies that were constructed to
3 implement it. But whether or not those subconspiracies were
4 accurately charged here is a question for you. Had the
5 government charged Mr. Al-'Owhali in one of those
6 subconspiracies narrowly drawn, then if you accepted the
7 evidence you could convict him. But the government having
8 chosen to include him in conspiracies which were beyond him, I
9 suggest to you you cannot.
10 I now turn to the reason why you must acquit him of
11 all the charges no matter how reluctant you are to do it, and
12 if you do that, you don't even have to get to my arguments
13 about multiple conspiracies. Here are some general issues I
14 want you to keep in mind.
15 Mohamed was, according to the only testimony offered,
16 kept in the custody of the Kenyans, and no Kenyan witnesses
17 have been presented to you. I will make the reason for that
18 apparent in a second. The conditions under which the Kenyan
19 authorities kept suspects were extreme, and you have evidence
20 of that from Mr. Kherchtou, and we will talk about that in a
21 minute and what it means. You don't know precisely what
22 Mr. Al-'Owhali said to Agent Gaudin because it was through an
23 interpreter, who has not testified; and second because Agent
24 Gaudin's testimony is so obviously biased that you can't rely
25 on the accuracy of even what he presents to you that Mohamed
5832
1 said.
2 Mohamed was arrested on August 12, 1998, at
3 approximately 10 a.m. He was arrested by Kenyan CID members.
4 The FBI agents, including Gaudin, conveniently stayed in the
5 truck, and we do not have a clue as to what was said to
6 Mr. Al-'Owhali in that room when he was arrested by Kenyan
7 members of the CID five days after 200 of their countrymen had
8 been killed and 5,000 wounded. And no one has been presented
9 by the government to tell you what it was. Do they have an
10 obligation to bring you that witness? As a technical matter,
11 no. The indictment isn't dismissed because of it. But the
12 judge will tell you that if they have control over a witness
13 and they don't bring him, you can consider whether or not what
14 the witness would have told you hurts the government's case,
15 is not good. Does it mean that? No. But why haven't you
16 seen one Kenyan police officer in this case, where he was kept
17 in Kenyan police custody for 10 solid days before he made the
18 statement that appears before you? Particularly after you
19 heard Kherchtou, and I will talk about that.
20 When he was arrested, he was injured. These are the
21 pictures of his injuries. None of them are life-threatening.
22 All of them were probably uncomfortable. We show them, not
23 for any plea for sympathy. There are a couple of reasons.
24 One, to show you how he looked at the time, and we will get
25 back to that. The other is, when you are kept in communicado
5833
1 and you hurt from injuries and you are not getting medical
2 attention -- that's what he looked like, ladies and gentlemen,
3 not what he looks like today. We will get to that later.
4 That discomfort leads to having your will overborne. By
5 itself is it a lot? Probably not. But when you look at
6 involuntariness you have to look at all the conditions.
7 On August 22, 10 days later, inexplicably, if you
8 believe Agent Gaudin, he agreed to speak with Agent Gaudin.
9 In the intervening time he was kept in isolation, except for
10 interviews as follows: On the day he was arrested, 12 a.m.,
11 and again -- I am sorry, 10 a.m., and again in the afternoon
12 with an interpreter behind a blanket. Listen to this. They
13 hid the interpreter behind the blanket. I mean, if that's not
14 ominous, what is? You have been arrested, you don't know what
15 you've been told. After that he waited alone for 18 hours,
16 until the 13th around noon, where he was interviewed for a few
17 hours.
18 The government may say to you well, the interviews
19 weren't onerous, he was given food, he was allowed to pray.
20 It's not the interviews that were onerous, it's the isolation.
21 It's the isolation of sitting and waiting and wondering what's
22 to become of you in a place where it is clear nobody thinks
23 well of you.
24 You may say who cares, he did what he did, why should
25 we worry about it? We do because of the law. Because the
5834
1 bottom line is, this is something not about morality, not
2 about justice, but following the law. Justice is something
3 else that we may or may not get to here, but you have to
4 follow the law.
5 After the interview on the 13th, he waited alone
6 again for about 24 hours until he was interviewed again at 3
7 or 4 p.m. on the 14th. From that time on, on the 15th and on
8 the 16th, there were no interviews. Fifty or 60 hours sitting
9 alone in a cell. We will talk about the conditions of that
10 cell and what we know and what we can surmise in a few
11 minutes. But just talking about the silence, the inability to
12 communicate to anybody, the fear that anybody has to feel.
13 Well, on the 16th, he did have a visitor. Agent
14 Gaudin went and brought him some milk sometime in the middle
15 of the night. Why is that important? It is important for a
16 couple of reasons. One is that it shows that Agent Gaudin had
17 access, and he told you at various times during his testimony
18 that he was not in control, Kenyan authorities had control of
19 the custody. But he had access. The other reason he went is
20 because he wanted Al-'Owhali to know that he only had one
21 friend. He only had one friend. If anybody was going to save
22 him from the Kenyans, it was Gaudin.
23 The 17th. He was interviewed for two or three hours
24 at about 11:00. On the 18th, no interview. On the 19th, no
25 interview. Fifty hours, more or less. I suppose the milk
5835
1 lasted a long time. On the 20th, there was the identification
2 parade for one hour. Gaudin was present. We will talk about
3 the identification parade when we talk about the corroboration
4 the government offers you and why. And on the 21st he was
5 interviewed for two hours, and the next day he gave a
6 statement.
7 We know something about the conditions that Kenyans
8 afforded suspects in the bombing, and I caution you that this
9 is not evidence of Mr. Al-'Owhali's conditions particularly,
10 but they are evidence of somebody in similar circumstances,
11 and we will talk about what evidence we have that connects
12 them. Listen to the words of Mr. Kherchtou, and I am not
13 quoting but these are the conditions of confinement that he
14 testified to. He was kept in other small room. He had other
15 criminals there. No bathroom, no sleeping mattresses, there
16 was no blanket, they provided to water. He was given a jar in
17 which to urinate. There was no water to wash either for
18 personal cleanliness or for prayer.
19 He was not interviewed at all in the first three
20 days. On the fourth day of confinement he was interrogated,
21 and despite the fact that he was not charged with any crime.
22 He was interrogated for an additional four or five-day period.
23 During that period up to the very end, just before the end, he
24 had no reading material. And during the period of confinement
25 he was kept sleepless because he was subjected to constant
5836
1 cold.
2 How do we know these were the same conditions of
3 confinement that Mohamed was subjected to? We don't entirely,
4 but you know that he had no reading material, and you know
5 that there were long periods of isolation. Nobody has come to
6 tell you that he was kept in decent conditions, not a soul.
7 I will talk about the reading material in a second,
8 but remember something else. You have to talk about a
9 statement as being reliable. Nobody is suggesting that the
10 statement is totally unreliable and that it never happened.
11 Nobody is saying that he didn't say that he had participated
12 in the bombing. But in terms of nuance, in terms of how you
13 interpret that statement for what conspiracies if you are
14 going to do that, this is a totally unreliable statement. The
15 person who interviewed Kherchtou, remember, taped every day.
16 Every day they had a tape recorder. This is a person who was
17 an agent of a foreign government, intelligence agent of a
18 foreign government. Taped every last word that Kherchtou gave
19 to him during that interview. We have no tape. It has been
20 pointed out by others. It is shameful. It is shameful that
21 the FBI has a policy where they do not tape incriminating
22 statements, where they do not videotape incriminating
23 statements. It is done so that you the juror, and I use that
24 generically, can be told anything they want to tell you, and
25 somebody like me, some poor fool like me has to stand up and
5837
1 say the FBI are liars. Certain ones are and certain ones
2 aren't. I suggest to you you saw two kinds here. You saw
3 Anticev and you saw Gaudin.
4 (Continued on next page)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5838
1 MR. COHN: (Continuing) But at least if Gaudin had
2 taped anything, you would have had Mohamed's own words. They
3 would have been in Arabic. They could have brought you an
4 interpreter. They would have interpreted. You would get
5 another of these endless stipulations that say, you know, that
6 it's an accurate translation and you would have heard what it
7 is he had to say in full bloom. Do you have it? No.
8 At least we could confirm one thing. Remember that
9 Agent Gaudin told you that at some point he came to the cell
10 where he had no control over the conditions and Mr. al-'Owhali
11 was looking at a magazine? Here's the first page of it. The
12 magazine is in evidence. He told the guards to take it away
13 from him and they did. He said, how come he has this
14 magazine?
15 Agent Gaudin had a reason to keep him in isolation.
16 Agent Gaudin had a reason to want him to sit there and not
17 think about anything else, not look at the pictures, not read
18 it if he could, but think, because thought was his worst
19 enemy.
20 Is it a surprise that after ten days of living at the
21 mercy of guards, who had to hate him, in a country where the
22 anger was palpable, he made a statement in order to escape
23 sure destiny in Kenya and have a trial under American law,
24 this trial? Not at all.
25 Is this a voluntary statement? Surely not. Well,
5839
1 why else should you ignore this involuntary statement?
2 Because it's really not, as I said, a nuance, at least very
3 reliable. You really don't know what was said because Agent
4 Gaudin admitted that he only got what the interpreter told
5 him. And no interpreter has been produced here, as I
6 mentioned at the beginning.
7 And even assuming goodwill, a reasonably large
8 assumption, the government's own witness, Special Agent Saleh,
9 you may remember, who was an FBI language expert, told you
10 that simultaneous translations are much more difficult than
11 doing what he did. He took written things and he translated.
12 That's translation. Actual simultaneous translations are
13 interpretation. An interpreter doesn't have a chance to go to
14 the dictionary, an interpreter doesn't have a chance to make
15 up for dialect problems and, at the best, mistakes could be
16 expected. And Saleh said that at page 3705. But it's Agent
17 Gaudin's bias that should convince you that the statement is
18 not reliable.
19 We start earlier in his cross-examination with
20 exhibits Al-'Owhali J and K. Now, these were pictures of
21 Agent Gaudin, whom you recognize, Mohamed, and some tall
22 fellow who must have been a co-agent, and the other picture of
23 Agent Gaudin with Al-'Owhali, and they are in a cell and he
24 wants you to believe that these pictures were taken as
25 evidence. In fact, they were memorabilia. Agent Gaudin had
5840
1 done what he believed was a sterling job. He had cracked this
2 case.
3 Remember that they weren't turned up for two years
4 after they were taken, when they were turned up by Agent
5 Gaudin somewhere. They had never been logged in. And you
6 remember that a lot of government agents talked about
7 photographic evidence and logging them in. He had to know
8 which was evidence and which wasn't.
9 But why does it matter? Because he lies about it.
10 Because he's trying to preserve what he views, as you will
11 see, as neutrality rather than a man whose pride in bringing
12 his country's enemy to heel would lead him to shade the truth,
13 in his distorted view to the effect if he has to appear to be
14 fair even when he is not, but, ladies and gentlemen, fairness
15 is a charade.
16 It's not the only evidence of his dissembling --
17 excuse me, lying. I do that sometimes, so stop me. Here's
18 his testimony. And you will forgive me. You will read it
19 from the screen, but I'll use my glasses.
20 When we were talking about -- you remember he
21 testified that Al-'Owhali told him that he had told Saleh to
22 move the bomb because he was going to do maximum damage in
23 another place, and when we started cross-examination, this is
24 what happened. And I will leave out Q and A. I think you
25 will recognize who is doing what. I'll just try and do it as
5841
1 quickly as possible.
2 "Agent Gaudin," and this is by me, "yesterday you
3 told us as part of what the interpreter said to you that
4 Mr. al-'Owhali said that Mr. al-'Owhali lobbied to have the
5 bomb put underneath the embassy rather than where it was
6 planned to go. Do you remember that testimony?
7 "Yes, sir.
8 "And you testified, did you not, that it was the
9 purpose, Mr. al-'Owhali's purpose in doing that to do more
10 damage and kill more Americans. Is that right?
11 "Something to that effect.
12 "That's what you testified to, right?
13 "Something to that effect, yes, sir.
14 "Well, did you say, so we can be precise, at page
15 2020,' and then quoting from 2020, 'Al-'Owhali had expressed
16 to Saleh that, wouldn't it be better if it were to put the
17 bomb truck in front of the U.S. embassy and Saleh disagreed.
18 And then Al-'Owhali suggested, wouldn't it be better for us to
19 put the bomb underneath the U.S. Embassy in the garage that
20 goes underneath, and in that way -- and in that way we would
21 cause more damage to the Americans since the U.S., since the
22 U.S. Embassy, but Saleh explained to him that it would be
23 difficult to do to get past the section of the security gate
24 to Al-'Owhali. The plan didn't get changed.'
25 "That was your testimony; is that right?
5842
1 "Yes, sir.
2 "That's not precisely true, is it?
3 "I'm sorry, sir?"
4 And then the court intervened.
5 Question: "What you said was Mr. al-'Owhali's
6 purpose in suggesting that is not exactly what he told you
7 during the 22nd; is that right?
8 "No, sir, that's what he told me.
9 "You issued a report called a 302, didn't you?
10 "Yes, I did.
11 "And in fact, you have it in front of you, don't you?
12 I think it's tabbed in the black book, and if you return to
13 page 9 of your 302 that you generated for the period of 8/22
14 to 25/98, it's 3528 for the record.
15 "Thank you, Mr. Ricco." I think that was Mr. Ricco
16 intervening in helping me out with the page.
17 "Do you have page 9?
18 "Yes, I do, sir.
19 "If you look on page 9 in the second full
20 paragraph -- now, this is something you signed, right?
21 "Yes, sir.
22 "And you drafted it, right?
23 "Yes, I did.
24 "And you drafted it from handwritten notes, did you
25 not?
5843
1 "And my memory, sir.
2 "And your memory. And you knew that it was supposed
3 to be accurate in all respects, did you not?
4 "Yes, sir.
5 "Fine. Did Mr. al-'Owhali not say to you, according
6 to this report, that subject advised that his enemy is the
7 United States and not Kenya and try to get Saleh to reconsider
8 his plan. Subject believed that placing the bomb in the rear
9 of the embassy would cause excessive collateral damage to the
10 Kenyans; didn't he tell you that?
11 "Yes, sir." And then he goes on.
12 Now, why did he do that? Because the reason he gave
13 makes Mohamed seem irredeemably bad, while the reason it had
14 to come out through cross paints a less stark picture of what
15 Agent Gaudin sees as good and evil. The problem is that Agent
16 Gaudin shouldn't be making that determination. He stopped
17 being a police officer. He's become an advocate, and you
18 can't trust what he says because of it.
19 There are two kinds of agents, as I said. Agent
20 Anticev is the other. He told you a number of things that
21 Gaudin didn't do or what the FBI won't do. For instance, the
22 FBI has forms of advice of rights in Arabic. Did they use one
23 for Mohamed? No. Why not? Because if he read his rights in
24 Arabic, he might understand them, it might give him some
25 comfort.
5844
1 Now, how else do you know that the statements are not
2 reliable? Because the government went to great lengths to
3 give you what it thinks or wants you to think is corroboration
4 of important points, stuff which we suggest is not
5 corroboration at all and should make you doubt whether the
6 government believes this testimony in full itself.
7 For instance, there is evidence about the bullets and
8 the keys. And you remember that somebody came in and said --
9 some ballistics expert came in and said that the bullets were
10 shaved, right, so that they would fit a .9 millimeter gun.
11 Now, here is a conspiracy, ladies and gentlemen, that
12 has the money to try to seek to buy plutonium. Remember that?
13 Why they told you about that other than to frighten you, I
14 don't know. But you think that they can't buy ammunition for
15 a gun that Mohamed was supposed to carry and they have to
16 shave down other bullets? That's silliness.
17 They brought you a money changer to show that
18 Al-'Owhali, who when he was stranded, tried to get, and did
19 get, money from another source in Yemen, a money changer who
20 provided documents that he admitted under cross-examination
21 had been tampered with. You know, there was some later
22 discussion about somebody being paranoid, but they had to go
23 back, bring him back again with another document that perhaps
24 had not been tampered with, at least there was no evidence on
25 the face of it. Why? For what purpose? Because they're not
5845
1 secure in the detail of what Mr. al-'Owhali is alleged to have
2 said.
3 They brought you the worst, without doubt the worst
4 identification witness in the history of the Western world.
5 Charles Mwaka Mula, who identified the defendant in the I.D.
6 parade. And you remember that there was testimony that there
7 were six people who had an opportunity to see the perpetrator
8 that day who was brought to the I.D. parade. The other five
9 failed to identify Mr. al-'Owhali of doing anything, and
10 Mr. Mwaka Mula was brought to you to show that he had
11 identified him in the parade, a parade at which Agent Gaudin
12 attended, by the way, and to identify him here in the
13 courtroom.
14 Now, this is a picture of what the parade looked
15 like, and Mwaka Mula says that he saw a picture of
16 Mr. al-'Owhali or what he -- the perpetrator, excuse me, in
17 the newspaper and he called somebody and ultimately he got to
18 the FBI. When he was shown a picture by the government, he
19 said, is this the picture that you saw? He said, I don't
20 remember. So the government couldn't lay a foundation for
21 putting it in evidence and we moved it in evidence.
22 And then you were told that he had been interviewed
23 by an FBI agent and he made a composite picture, and here's
24 the picture. A sharp resemblance to Mr. al-'Owhali. I
25 suggest you not commission this person to do a family portrait
5846
1 if you want a good likeness. Clearly it's neither one of
2 them. He said he didn't remember this either. I had to move
3 it into evidence.
4 Now, then -- by the way, the government stipulates
5 that these are the two, these two items are in fact --
6 remember I read one stipulation during our case? This is it.
7 They stipulate that these were the things that we say they
8 were -- a picture that he had, the composite that he dictated,
9 essentially, and the picture that he says caused him to call
10 the FBI in the first place.
11 And take look at them. Neither one of them is
12 Mr. al-'Owhali as he looked then. But it's even better,
13 because then they say, do you see him in the room? Now,
14 ladies and gentlemen, look at the I.D. parade again.
15 And, Katie, if you would highlight Mr. al-'Owhali for
16 us.
17 That's the way he looked then. This is the way he
18 looks today.
19 Did Mr. Mwaka Mula have any difficulty picking him
20 out after not being able to identify the pictures that he had
21 drawn? Not only did he point right at Mr. al-'Owhali and say
22 "that's him" -- now, there are six bearded men in this
23 courtroom, one of whom is the judge, so we don't count him,
24 and one of whom is Mr. Herman, and we don't Count him. And he
25 pointed directly to Mr. al-'Owhali.
5847
1 Mr. Karas predicted, with some prescience, that I
2 would say that he was coached. I do. Do I say that Mr. Karas
3 or any member of the prosecution team sitting here at the
4 table did it? Absolutely not. There are lots of candidates,
5 folks, one of whom has come under great discussion.
6 Now, how else do we know that the statement is
7 coerced and not reliable? You were told on the government's
8 summation that on the 21st of August, Mohamed was shown
9 information that made him change his mind. Now, ladies and
10 gentlemen, I have said to you before, and I say to you again,
11 it's your recollection of what was said in this courtroom, not
12 mine, certainly not Mr. Karas' either, but I suggest you look
13 at Agent Gaudin's testimony and try and find that, please. It
14 doesn't exist.
15 The government says that the motive of Mr. al-'Owhali
16 exists, adopts is the transfer of the embassy in Sudan. And I
17 talked about that. What is Agent Gaudin doing? The
18 government in its summation recalled that I had asked a
19 question of Mr. Kherchtou about, how do you construct a lie?
20 And you remember that he was instructed by this agent of a
21 foreign government is you construct a lie out of bits of the
22 truth. You use as much of the truth as you can so that it
23 bears up and you don't see the falsities.
24 Well, with respect, that's what Agent Gaudin is
25 doing. You may remember I asked a -- you know, we are full of
5848
1 these legal fictions. Things are stricken. You're not
2 supposed to remember. Whole witnesses testifying. You're not
3 supposed to remember. We hope you don't. We hope you try and
4 put it out of your mind, but one of the things, I asked the
5 question, which there was an objection which was sustained,
6 I'm sure you don't remember it, but I can do it now because
7 it's summation. I asked Gaudin, "Have you ever heard of
8 plausible deniability?"
9 THE COURT: I'm sorry, you asked a question and the
10 objection was sustained?
11 MR. COHN: Yes. And now I'm using it as argument.
12 I'm saying this as comment, as argument.
13 THE COURT: That is not as a fact but as an argument?
14 MR. COHN: That's correct.
15 THE COURT: All right.
16 MR. COHN: I said, "Have you ever heard of plausible
17 deniability?" And the reason it was stricken was because it
18 was argumentative and it was nasty and sarcastic and all the
19 things I'm not supposed to be in a courtroom. But trust me,
20 Agent Gaudin has heard of plausible deniability, as have all
21 of you.
22 Mohamed was kept in terrible conditions, in fear of
23 his life from jailers, with jailers who had to hate him. It
24 was clear that he wasn't going to get any trial in Kenya, and
25 if he did, one so summary as not to be worthy of the name.
5849
1 To get a trial, he ultimately had to come to the
2 United States, avowedly his enemy, but the only refuge that he
3 had, and as the statements he made to Gaudin tell you, after
4 begging for assurance that he would go to the United States
5 for trial, he paid for the trip in the only coin he had, which
6 was his statement.
7 Do you believe the statement was not coerced? If so,
8 then you should convict. If it was coerced, involuntary, the
9 result of a will overborne by deprivation, isolation and
10 implicit or explicit threats from the Kenyan handmaidens of
11 the United States Government, even though you don't want to,
12 even though you think that it may be true, you must put it
13 aside, as the judge will tell you that you may.
14 You are the judges of the fact and you evaluate this
15 testimony and you give it the weight, the credibility and the
16 importance, if any, that it has.
17 This is harder than what other defendants have asked
18 you to do. They have asked you to evaluate the testimony in
19 terms of whether or not the government has proven its case
20 beyond a reasonable doubt. I'm asking you to do something
21 infinitely harder. I'm asking you to evaluate the testimony
22 as how they got the evidence, and if you find that it is
23 untrustworthy, if you find that it is unAmerican, then I'm
24 asking you to ignore it; and if you ignore it, you have to
25 acquit because there is no other evidence.
5850
1 Why should we do this? He said he is our enemy. Why
2 should we apply a Constitution in his favor when he may be the
3 one who took the lives of countrymen, allies, employees and
4 people who just happened to be there? Because it's who we
5 are. I'm not wrapping myself up in the flag when I say this
6 is that. This is who we are. The Constitution entitles him
7 to this trial and to his defense, and to not apply it to the
8 verdict phase of this trial is to make a mockery of the
9 process and all our efforts.
10 After you have reached a verdict and before you come
11 out and deliver it, if you can say that each of you would have
12 reached your verdict on this evidence no matter who the
13 defendant was, that you have looked at the evidence and say
14 that you are certain of your verdict and that it is not really
15 expedient because of the nature of the charges, then no one
16 can quarrel with your decision.
17 But, on the other hand, if you are left with a
18 feeling that it is who he is that has caused you to decide
19 that the horrific nature of the charges has prompted your
20 response, and not a certainty that the government has properly
21 charged him or properly obtained his statement, then you
22 should reexamine your verdict because you are in danger of
23 violating your oath, the oath that you took and which is the
24 bedrock of our system, no matter who is the defendant.
25 In the end, I believe that the oath you took will
5851
1 prevail and that each of you will do what the law as Judge
2 Sand charges you and that, in a broad sense, justice will
3 prevail.
4 Thank you.
5 THE COURT: Thank you, Mr. Cohn. We'll take our
6 midmorning recess.
7 (Recess)
8 THE COURT: Mr. Fitzpatrick.
9 Mr. Fitzgerald.
10 MR. FITZGERALD: Yes, your Honor. When you say
11 "Fitzgerald," we'll know the trial is over.
12 I have an objection to some of Mr. Cohn's remarks,
13 and I particularly have an objection to the way he
14 characterized what happened in the period before
15 Mr. al-'Owhali executed the waiver of rights form.
16 Mr. al-'Owhali has sought to suppress what happened
17 between his arrest and when the form was signed ultimately in
18 later August. Then Mr. Cohn argued to the jury that you don't
19 know what happened on that date that caused Al-'Owhali to
20 change his mind, implying to the jury that he wouldn't talk
21 before and they kept him in isolation, and then he did talk,
22 when in fact he was talking all along, he was threatening
23 agents. And I think he has created a completely misleading
24 view of what happened during the period before the Miranda
25 rights.
5852
1 And I think the appropriate remedy is not to reopen
2 the case at this point, but I think the government should be
3 allowed to argue in rebuttal summation that Mr. Cohn had Agent
4 Gaudin on the stand, and if he wanted to know what happened
5 before, whether he had talked before he signed the Miranda
6 rights, he should have asked him then. Because this jury has
7 been led to believe that he changed his mind at a certain
8 point, when he had been talking al along.
9 MR. COHN: He did change his mind, your Honor. He
10 gave false exculpatories before when pressed and are no
11 statements. And I never said he made no statements. I was
12 very careful to say that -- not to say that. And a false
13 exculpatory at this point, since it couldn't be used, is no
14 statement at all. And I said that he was interrogated. I
15 gave the periods of interrogation. I said that they gave him
16 food and an opportunity to pray, and I don't know what I
17 misrepresented. I'm not obligated --
18 THE COURT: The question is "didn't talk," which you
19 are interpreting to mean literal silence, and I think Mr. Cohn
20 was suggesting by "didn't talk," didn't say anything
21 incriminatory.
22 MR. COHN: I don't think I even used the words
23 "didn't talk." I just said that --
24 THE COURT: You did. I think you did indicate that
25 suddenly he started to talk.
5853
1 MR. COHN: I'm told by the gallery that I did.
2 MR. FITZGERALD: Your Honor, we're telling the jury
3 that he talked at a certain date. He changed his mind. He
4 talked on that date. I think the jury thinks, okay, he didn't
5 talk before. And we have this specter of the handmaidens in
6 the American government and threats, explicit and implicit,
7 when we were barred from getting into the circumstances of the
8 period before he executed that waiver.
9 THE COURT: Again, it's a question of what you mean
10 by "talk." If you mean literally speak, then of course he did
11 literally speak. If by "talk" is used in the criminal law
12 context of making incriminatory statements, then I think that
13 it's accurate, that he didn't make any incriminatory
14 statements until the 22nd.
15 MR. FITZGERALD: But he wouldn't be isolated if he
16 was talking with people during that time. I think the jury is
17 being told he changed his mind.
18 THE COURT: You want to tell the jury that in fact he
19 was being interviewed during the period prior to that time?
20 MR. COHN: I told them that.
21 THE COURT: I think you did.
22 MR. COHN: I told them the periods, the length of
23 time.
24 MR. FITZGERALD: And if he was concerned that there
25 was improper conduct going on, explicit or implicit threats by
5854
1 the handmaidens of the American government, he could have
2 asked Agent Gaudin about what happened during that time.
3 MR. COHN: Agent Gaudin said he didn't know what
4 happened when he wasn't there. I never said Agent Gaudin said
5 anything. He's not a handmaiden, he is an American.
6 MR. FITZGERALD: Agent Gaudin was there. Your Honor,
7 he has created the impression. We weren't allowed to talk
8 about what happened during those days. Now he leaves the
9 impression to the jury that some awful things happened that
10 caused him to change his mind.
11 THE COURT: What is it you want to do?
12 MR. FITZGERALD: I want to make a comment during
13 rebuttal summation.
14 THE COURT: What is the comment?
15 MR. FITZGERALD: The comment will be if he wanted
16 you, the jury, to believe that some awful things happened
17 before he signed that form that caused him to change his mind,
18 he had Agent Gaudin up there, he could asked him what happened
19 during the interviews the days before.
20 THE COURT: What's wrong with that? What's wrong
21 with that?
22 MR. COHN: I'm thinking, Judge. I can hear the
23 wheels creaking. I'm old and slow.
24 Could I have that read back?
25 THE COURT: Surely.
5855
1 (Record read)
2 MR. FITZGERALD: The days before.
3 THE COURT: The record should indicate that Mr. Cohn
4 is shrugging his head. I translate that to mean no objection.
5 MR. COHN: It means I will reluctantly consent.
6 THE COURT: Very well. Mr. Ruhnke, are you going to
7 give the closing?
8 MR. RUHNKE: Yes.
9 THE COURT: If you can give me some approximation.
10 You reserved three hours, but --
11 MR. RUHNKE: We'll be done certainly before lunch.
12 THE COURT: Certainly before lunch. Before lunch.
13 And the government's rebuttal, then, this afternoon?
14 MR. FITZGERALD: Yes, Judge.
15 THE COURT: And the charge tomorrow morning.
16 MR. FITZGERALD: Yes, Judge. I don't know if the
17 time allotment -- I may spill into the morning, but not very
18 far.
19 MR. DRATEL: Your Honor, how did your Honor want to
20 handle the exhibits? Should we put them in binders for the
21 jury?
22 THE COURT: You should have the exhibits ready. I do
23 not automatically send in exhibits, I think particularly in
24 this case it would not be helpful to the jury to send in all
25 of the exhibits, but they should be available in a form in
5856
1 which they can be sent in to the jury. In other words, if the
2 only copy that we have is one that needs redactions, they
3 should be redacted.
4 MR. DRATEL: Your Honor, one copy? 12 copies?
5 THE COURT: I think one copy unless, if you have 12,
6 fine. I think just one.
7 MR. DRATEL: Thank you.
8 (Recess)
9 (Jury present)
10 THE COURT: Next we'll hear from Mr. Ruhnke on behalf
11 of defendant K.K. Mohamed.
12 MR. RUHNKE: May it please the Court, Judge Sand,
13 prosecution team, colleagues at the defense table, and ladies
14 and gentlemen of the jury. Good morning. I'm the last one to
15 speak to you on behalf of any of the four men who are on trial
16 in these very serious charges, in this very serious case.
17 We've been together here for about three months,
18 three or four months. You remember the day this case started.
19 The snow was outside. The wind was howling through the
20 courtroom. And you all shuffled in here for the first time
21 and were told by Judge Sand and given an oath by Judge Sand to
22 well and truly try this case between the United States of
23 America and the four individual men who are standing trial in
24 this case.
25 In that moment, you became an American jury, and in
5857
1 that moment you made promises to the Court, to the lawyers,
2 you made promises to the men on trial that you indeed would
3 well and truly try this case. There's nothing more that I'm
4 going to ask of you than to stay true to that oath.
5 You would be forgiven, even though we have been
6 together since February, if you don't know my name, because I
7 have not been up on my feet all that often. So I'll tell you
8 my name again. My name is David Ruhnke. I'm a lawyer and I
9 represent Khalfan Khamis Mohamed, the gentleman in the blue
10 shirt and the glasses who has been sitting to my left
11 throughout the trial. Sitting next to Mr. Mohamed is David
12 Stern, who is the other attorney representing Mr. Khalfan
13 Mohamed.
14 There had been a third attorney in the case, Mr.
15 Schneider, who withdrew shortly after the case began, and it's
16 now Mr. Stern and I who are charged with representing Khalfan
17 Khamis Mohamed before you ladies and gentlemen of the jury.
18 Like the other lawyers in the case, like the
19 prosecutors have asked you, I come before you simply to ask
20 that you do justice. You may gather that while everybody is
21 asking you to do the same thing, they all come from different
22 perspectives, and maybe we all have a different definition of
23 what justice is.
24 But what should be important and what should be
25 obvious and apparent to all of you by now is that it is not my
5858
1 job to say what justice is. It's not Judge Sands' job to tell
2 you what "justice" means in this case. It is emphatically not
3 the prosecutors' job or the newspapers' or anyone else in the
4 courtroom to tell you what justice is. That's your
5 responsibility. That's what you took on when you decided that
6 you would become an American jury and you would take on this
7 case.
8 You knew when you were selected in this jury, when we
9 selected all of you as members of this jury, at any given
10 point, at any number of points, any one of you could have
11 opted out of this process. You were asked questions, you
12 filled out questionnaires, you were questioned by Judge Sand,
13 and if any of you had said, you know, I want off this jury, I
14 don't want to serve, there isn't a doubt in my mind that each
15 and every one of you could have gotten yourselves off the jury
16 if you didn't want to serve. So you wanted to serve on this
17 jury. We welcome you and we're glad you're here.
18 What I intend to use my allotted time for this
19 morning is to do three things. And I'm not going to use all
20 of my allotted time this morning. First, I would like you to
21 gain a sense of where things happened in this case. You have
22 been given a swirl and a flurry of names and places and cities
23 and interrelationships, and I would be guessing, but I think
24 it would be a pretty informed guess, that a lot of you don't
25 know a simple question like: How far is it from Dar es Salaam
5859
1 to Nairobi? Where does Tanzania compare to Somalia? Where
2 exactly is Bosnia, Herzegovina? Where is Afghanistan compared
3 to these other places?
4 I'm going to take some time just to show you so that
5 when you start to deliberate on this case, at least you got a
6 sense of where it was that Khalfan Khamis Mohamed was and
7 thought about and did during the time period that is important
8 in this case.
9 I'm also going to spend some time trying to outline
10 for you when certain things happened, and the simplest way to
11 do that is by just a chronology; when, from the perspective of
12 one man in this room, Khalfan Khamis Mohamed, on August 7,
13 1998 was 25 years old, when things happened that matter to
14 this case.
15 And I'm also going to spend some time talking about
16 the statement that Khalfan Khamis Mohamed gave to the FBI. I
17 want you to keep in mind that when you have questions about
18 Khalfan Mohamed, when you have questions about who he is or
19 what he did or what he didn't do or what the government says
20 he did or what the government says he didn't do, you're going
21 to have in evidence two documents.
22 The first document is Government Exhibit 1071. It's
23 a 302. You hear people talking about a 302. Have you ever
24 wondered what the heck is a 302? Where do people get that
25 word from? It's a form number. If you look at the top
5860
1 left-hand corner of this, you will see it says "Federal Bureau
2 of Investigation Form No. 302, Revised 10/6/95." It's the
3 form number the FBI uses to record interviews of witnesses.
4 The second document that you will have in the
5 evidence, which is kind of the alpha and the omega, the be all
6 and the end all, the beginning and the end of the case against
7 Khalfan Khamis Mohamed is a document marked 1070, one, zero,
8 seven, zero. 1070 is the rough interview notes, the notes
9 taken by the two agents, Abigail Perkins and Michael Forshea,
10 who interviewed Khalfan Khamis Mohamed in Cape Town, South
11 Africa and on the plane back from Cape Town, South Africa over
12 the period of time beginning October 5, 1999 through October
13 7, 1999.
14 That's a time line I want to you keep in mind. We're
15 talking about interviews that occurred in October of 1999, not
16 '98 when the bombing occurred, but 14 months later that the
17 interviews actually took place. Most of the interviews you
18 have heard about in this case have happened within a period of
19 a few days or months or weeks from the bombings of the
20 embassies. We're talking about interviews that occurred well
21 over a year after the fact.
22 As you go through these interview notes, it will
23 quickly become apparent to you that there are two different
24 handwritings from two different agents. You will find out and
25 I will tell you circumstantially by references that the
5861
1 handwriting that is very, very difficult to decipher is the
2 handwriting of Agent Perkins who testified in this case,
3 Abigail Perkins, and the handwriting that is probably a joy to
4 his fourth grade teacher is the handwriting of Agent Forshea.
5 It's a pleasure to read. It's easy to read and easy to
6 follow.
7 But I will tell you, having spent hours and hours and
8 hours trying to figure out what Agent Perkins is writing, it
9 does make sense after a while and you see that there's a logic
10 and a style and a consistency to her.
11 You will notice, for example, that in her handwritten
12 notes she will use the mathematical sign of an equal sign with
13 a line drawn through it to mean "not," in the sense of not
14 equal, and other kinds of shorthand that become apparent as
15 you look through her statement.
16 So let's begin by looking at the "where" of this
17 case. I'm going to ask that we display Map 1 on the screen,
18 which is the Continent of Africa. It's where most of the
19 things that happened in this case took place.
20 If you start on the left-hand corner of Africa and
21 you see the Country of Morocco, that's where Hussein Kherchtou
22 is from, the witness who testified who was the second
23 government major, major witness.
24 You will see as you look towards Europe, we all
25 know -- we can all find Italy, the boot of Italy. Right
5862
1 across from the right-hand side of Italy is the former
2 Czechoslovakia. That's where Bosnia, Herzegovina is located.
3 It's where Sarajevo was, the city that was a jewel that hosted
4 the winter Olympics and became void during a period of what is
5 known shamefully as ethnic cleansing.
6 You heard Mr. Kherchtou testify about ethnic
7 cleansing in Bosnia, and what happened in Bosnia was after the
8 Czechoslovakia broke up, when the Soviet Union broke up, that
9 it retreated to centuries-old ethnic enclaves, and one ethnic
10 enclave, the Serbians wanted to cleanse, to cleanse their area
11 of the former Yugoslavia of Muslim people. And they engaged
12 in what is undoubtedly and defines the word genocide --
13 killing people because of their ethnic background. And that's
14 what ethnic cleansing was. When people talked about going to
15 Bosnia to protect Muslims, they're talking about defending
16 against genocide. But that's where Bosnia, Herzegovina is.
17 If you go across through Turkey and into Asia, you
18 don't even see on this particular map the designations of
19 Pakistan and Afghanistan, but if you take India over on the
20 right-hand side and you go to the top of India and move a
21 little bit to the left, that country that opens onto the
22 Indian Ocean is Pakistan. Pakistan was created out of hole
23 cloth in 1948 when India won its freedom to divide areas
24 between the Muslims who had the area that is now Pakistan and
25 the disputed Province of Kashmir and the Sikhs and the Hindus
5863
1 retained the rest of Northern India.
2 And as you go into Africa, the places we have heard
3 about, we've heard about the Sudan and Ethiopia and Somalia,
4 we've heard much about Somalia, and you look at the map and it
5 is hard to picture where these places are and the sizes of
6 them.
7 And I remember seeing a map displayed in this
8 courtroom which tells us that Somalia is the size almost of
9 the entire Eastern United States; that the northern border of
10 Somalia, if you laid it on the East Coast of the United
11 States, would touch southern New England and Vermont and the
12 southern point of Somalia would touch Florida. It would go as
13 far west as Ohio and Michigan and we would be in this country
14 of Somalia.
15 And it is impossible for us to sit in a courtroom
16 here in the year 2001 and imagine a country of that size that
17 has no government, and for significant periods of time had no
18 government, just had people preying on each other, seeking
19 power and territory with clans and warlords that date back
20 hundreds and hundreds of years, if not thousands.
21 If I could see the second map, please, Map 2, a more
22 closeup view. Again, if you look in the upper left-hand
23 corner of the map, you see Belgrade. You are looking now at
24 the area of Bosnia, Herzegovina, and across the entire sweep
25 of Northern Africa and South Asia through Afghanistan, which
5864
1 you can now see on the map, and Pakistan, which you now see on
2 the map.
3 And when people talk about going to Karachi, like my
4 client talked about going to Karachi for training in
5 Afghanistan, you see Karachi at the bottom on the Indian
6 Ocean, and traveling to Peshawar. You see Peshawar where the
7 cursor is going. If you move the cursor a little bit to the
8 left toward Kabul, which is the capitol of Afghanistan, you
9 are in the Hindu Kush, some of the most rugged territory that
10 there exists anywhere in the world.
11 And at this moment as we talk in this courtroom here
12 in New York City, in May of 2001, Usama Bin Laden is sitting
13 in a cave in the Hindu Kush and able to communicate to the
14 world with satellite phones that connect with a satellite
15 hanging over the Indian Ocean and talk anywhere in the world.
16 Can I see Map 3, please.
17 Now we begin to get closer to where we are and where
18 we've been for the past several months. You see Kenya and you
19 see Nairobi, and below Nairobi, about an hour flight away,
20 maybe 300 or 400 miles, it's like going from here to
21 Cincinnati or here to Atlanta, the distance between these two
22 capitols. You see Dar es Salaam and then you see Zanzibar.
23 Zanzibar is the place where my client grew up, where Khalfan
24 Khamis Mohamed was raised.
25 A country like Kenya, a country like Tanzania has
5865
1 mixed populations of Muslims and Christians and tribal
2 religions. Zanzibar, as you heard from some of the evidence,
3 is a place that is almost entirely a Muslim country, 95
4 percent of the people on the Island of Zanzibar, the
5 archipelago of Zanzibar, are Muslims.
6 Zanzibar used to be part of the Ohman Empire. It was
7 Arab-Sultan made at some point in that history of that part of
8 the world. But you get a sense of where things are and how
9 close they are.
10 You see how close Mombasa is to Dar es Salaam and to
11 Zanzibar and how short the coastline is in Kenya before you
12 touch southern Somalia -- not Mogadishu, but southern Somalia,
13 the Gedo region of Somalia, places where Ethiopia was at war
14 with Somalia, attempting to take over, places where
15 individuals you have heard about in this case went in an
16 effort to try to defend Muslims.
17 Can I see Map 3, please. I'm sorry, Map 4. No, Map
18 9.
19 This is a closer view of Zanzibar, which is sometimes
20 referred to by the name of Unguja, and the northern isle above
21 that which has the cities of Wati and Chocha-Chocha is Pemba,
22 the part of Zanzibar Archipelago, and as you will see, the
23 place where my client was born, where Khalfan Khamis Mohamed
24 was born.
25 Could I see Map 6, please.
5866
1 Map 6 is a closeup of the Island of Zanzibar in the
2 Indian Ocean, and you see highlighted right in the middle of
3 this a little tiny white lettering that says Kidimni. Kidimni
4 is a tiny rural village on Zanzibar, where my client was born
5 and where most of his family resides today, as he is in New
6 York city and they are in the Indian Ocean.
7 And finally, if I could have map number 5. Map
8 number 5 shows Dar es Salaam. If I could have the center of
9 that highlighted, please. And as you see on the map of Dar es
10 Salaam, you have heard tale of the bomb house at 213, house
11 number 213 if the Ilala section of Dar es Salaam. And you see
12 on that map where the Ilala section of Dar es Salaam is.
13 You see a section called Oyster Bay on the screen
14 right on the ocean. Oyster Bay is the section of Dar es
15 Salaam where the American Embassy was located, the former
16 American Embassy. It's been relocated. There's a new embassy
17 being built in Dar es Salaam as we speak. And you will see on
18 the distances, when you hear evidence that someone traveled
19 from Ilala to Oyster bay or left a certain area and went to
20 Oyster bay, how far apart those are.
21 If we can switch and I can have displayed the first
22 chart, chart 1.
23 What I have done for you, if you find it useful, and
24 I hope you find it useful, is to prepare a chronology, a
25 series of events that track Khalfan Khamis Mohamed's life from
5867
1 birth to today, when he is on trial for his life. And we'll
2 just follow on through this chronology.
3 On July 25, 1973, he was born. He was born on the
4 islands. Pemba, this is northern island that we saw, he and
5 his twin sister Fatuma were born, and he grew up in this
6 village of Kidimni where he was educated, although he did not
7 complete high school, as we learned as part of this case. And
8 as he is growing up, things are happening on the world stage.
9 In December of 1979, the former Soviet Union invaded
10 Afghanistan. The Arab mujahadeen, led in part by Usama Bin
11 Laden, rallied, and with the backing of the United States
12 Government, not always the overt backing of the United States,
13 but with often the covert backing of the United States,
14 mobilized to repel the Soviet invasion of Afghanistan.
15 Khalfan Mohamed -- these are the world events that are going
16 on around him -- is six years old.
17 In 1989, ten years later, the Soviet Union is driven
18 out of Afghanistan and the United States continues to provide
19 support to the mujahadeen and continues to provide support to
20 the mujahadeen for the next two years as they attempt to repel
21 the Soviet puppet government that's been set up.
22 And our government, my government, your government,
23 continues to ship things like Stinger Missiles to the Arab
24 mujahadeen because it is in the national interests of the
25 United States to support what they are doing in Afghanistan.
5868
1 Khalfan Mohamed is 16 years old.
2 At age 17 in 1990, he moves to Dar es Salaam to live
3 and to work. As you may imagine, the opportunities in Kidimni
4 are few. And he begins to work with his brother who has a
5 store in Dar es Salaam. The evidence is that Khalfan Khamis
6 Mohamed did not grow up in a very religious household. In
7 fact, his family is not very religious at all. It's really at
8 age 16 and 17, when he moves to Dar es Salaam, that he begins
9 to study Islam for the first time with any degree of
10 seriousness.
11 He begins to attend a mosque in the Ilala section of
12 Dar es Salaam and he is befriended by a man from Mombasa,
13 Kenya, named Sulieman, whose full name is Suleiman Abdallah,
14 and he begins, as it says, his first serious studies of Islam.
15 The world events continue to move forward, and in
16 that same year, Iraq, another Muslim country, invades Kuwait,
17 another Muslim country, on the Saudi Peninsula, and what we
18 call the Gulf War begins. And the United States, under
19 President George Bush, the first George Bush president, I'll
20 call him George Bush 41 and George Bush 43, because I recently
21 learned George Bush was the 41st president and George Bush now
22 is the 43rd, but under George Bush 41, the Gulf War begins.
23 The United States sends troops to Saudi Arabia. The
24 king of Saudi Arabia, King Fahd, invites the American troops
25 into what to many Muslims is a sacrilege into the land of the
5869
1 two holy places, as we have heard it referred to from time to
2 time, Mecca and Medina, the two holiest sites in Islam.
3 And very quickly, by January 1991 Iraq is defeated.
4 Saddam Hussein is not deposed, removed from government,
5 remains in government, but Iraq is defeated, is driven from
6 Kuwait, but the United States forces remain in Saudi Arabia,
7 indeed, where they remain today.
8 In 1994, Khalfan Mohamed has continued to pursue his
9 studies of Islam. As you will see, if you dig into the
10 statement, he listens to lectures, he listens to cassette
11 recordings, he listens to scholars and other teachers to tell
12 him about Islam, and he meets a man named Fahid, who is Fahid
13 Mohammed Ally, who tells Khalfan Khamis Mohamed that although
14 he is a nice man, he does not trust Khalfan Mohamed, but if he
15 went to Afghanistan and got some training, perhaps then he
16 would trust him.
17 And Khalfan Mohamed goes to Afghanistan through
18 Karachi, into Afghanistan, into a camp that is primarily run
19 by Pakistani people. It's supported by groups from Pakistan.
20 The teachers and the leaders at the camp are from Pakistan.
21 You will learn that it was his belief that his reason and
22 purpose for going to training was to learn how to help other
23 Muslims, if necessary, through arms struggle, and he thought
24 he might go to Bosnia to help Muslim people there.
25 The quotes are from his statement. I'm not just
5870
1 giving you the quotes, they are contained within his
2 statement.
3 Now, the government argues in an effort, perhaps, to
4 put Khalfan Mohamed into a conspiracy that is existing long
5 before he becomes aware of it and into a conspiracy that is
6 aimed at killing Americans. Remember, the first Count of this
7 indictment is a conspiracy to kill Americans. The government
8 claims that by going to Afghanistan and taking training,
9 Khalfan Mohamed has joined the conspiracy and is participating
10 in it.
11 Mr. Karas, in summing up for the government, made the
12 statement, well, we had the witness Hamisi who said Khalfan
13 Mohamed realized that his training camp was underwritten by
14 Usama Bin Laden. If wishes were horses, they say beggars
15 would ride. It's not that the government has a lot to wish
16 for in its proofs again Khalfan Mohamed, but that was a
17 misunderstanding of what Mr. Hamisi actually said.
18 The question that Mr. Karas actually asked of
19 Mr. Hamisi was the following, and the transcript reference is
20 there for you:
21 "Did Khalfan tell you who it was that he believed had
22 financed the training he had taken?" And the witness, like
23 witnesses often do, especially witnesses who are not
24 sophisticated, answers the question two different ways. He
25 says: "He mentioned to me, he says Usama Bin Laden is the one
5871
1 who helps a lot of groups over there." So you got one piece
2 of information. Usama Bin Laden helps a lot of groups over
3 there in Afghanistan. "But he didn't go into detail that he
4 received that help."
5 This was not an act in furtherance of this
6 overarching conspiracy. What was it? An effort to be trusted
7 by people he greatly, greatly respected and wanted to be part
8 of.
9 So what happened after 1995? One thing that did not
10 happen is that he was not asked to join al Qaeda. You will
11 recall Mr. Kherchtou's testimony that what would happen after
12 the training in Afghanistan is that the best prospects would
13 be pulled aside, taken aside and asked to become a member of
14 al Qaeda. He was not asked to do that.
15 In fact, after the training was over, what Khalfan
16 Mohamed did was he returned to Afghanistan by himself. He
17 left a contact address, which was his brother's post office
18 box where he was living, and didn't hear anything at all until
19 1998. Another three years went by. Meanwhile, world events
20 are going on.
21 It is August of 1996 that Usama Bin Laden issues his
22 declaration of Jihad. In 1997, and again the Bible, the core,
23 the alpha and omega of this information is the statement that
24 is in evidence, the statement that the government's case
25 accurately summarizes what Khalfan Mohamed told the agents.
5872
1 He visits Mombasa, Kenya three times -- you recall
2 really how close it is between Dar es Salaam and Mombasa --
3 traveling on a boat, Suleiman's boat. He engages in further
4 religious discussions. A person more sophisticated than I in
5 terrorism or recruitment might very well say this is a man
6 who's being recruited by some other people for some purpose.
7 There are many religious discussions about how to
8 help Muslims, and he meets a man named Hussein, who is also
9 called Mustafa. You heard about Mustafa in connection with
10 Nairobi. Mustafa Mohamed Fadhl. And Fahid, his friend, Fahid
11 describes this gentleman who he knows as Hussein as a good
12 brother, and Hussein knows Khalfan Mohamed lives in Dar es
13 Salaam.
14 Still, in 1997, he makes two trips to Somalia.
15 Remember, in 1997 certainly there are no Americans troops in
16 Somalia in 1997. Any American troops that were ever in
17 Somalia are long gone. It is truly anarchy in Somalia in
18 1997. There are tribal wars between Muslim groups.
19 He goes there twice. There is again religious
20 discussions. He is wondering if he is going to get to put his
21 training to use and go fight on the front lines, but he's
22 basically told that he is not needed and he goes home.
23 In March of 1997, Usama Bin Laden gives that
24 interview that we saw with CNN. In the spring and summer of
25 that same year, his brother relocates to London.
5873
1 Now we come to another event capable of two
2 interpretations. In January of 1998, Khalfan Mohamed asked
3 his friend, Zabron Nassor Mulid, somebody from Zanzibar,
4 somebody he had gone to school with -- you may remember that
5 Zabron, Mr. Malid, or Zabron Nassor Mulid, testified here as
6 witness. He knew Mr. Mohamed's family. He had been to their
7 home. They had gone to school together. He had played soccer
8 with Khalfan's brother Rubaya, who is apparently a good soccer
9 player.
10 But what's important in this case is that Khalfan
11 Mohamed asked Zabron to help him get identification documents.
12 He wants to go to London and he wants to go to London to start
13 a new life, is the words he explains to his friend, and he
14 also is seeking to bring his brother's children, his brother's
15 wife with him and to go there and start a new life. And
16 Zabron agrees.
17 As the world turns, as events go, if Khalfan Mohamed
18 had left to go to London to start a new life, probably the
19 embassy would have been bombed on August 7, 1998 anyway, and
20 that would not have changed, but everything would have changed
21 for him and he would not be sitting here, facing your
22 judgment. But that's not how the world turned.
23 In March or April of 1998, Hussein approaches him and
24 asked him if he will help with a mission or a jihad job, and
25 he agrees to help. He doesn't know what the purpose is. In
5874
1 fact, to the extent that he's thinking at all of what the
2 purpose might be, he is thinking it's most likely Somalia.
3 He's been to Somalia. He knows what has been happening in
4 Somalia.
5 We'll talk about the 302 document that is -- I'm
6 sorry, the handwritten notes that are in evidence and why
7 certain things appear in the notes and why things don't appear
8 in the final memorandum, but if you look at the notes, these
9 notes are 87 pages long, unnumbered. If you care about them,
10 you might spend the two or three minutes it takes to number
11 them.
12 But at page 86 of the notes, while the agents are
13 appraising some of the things that are being told,
14 Mr. Mohamed, according to these notes, says when Hussein told
15 him about the Jihad job, he didn't know where or the target.
16 Maybe Somalia, he didn't know. He had previously rented the
17 house we heard about, 22 Kidugalo Street in the Magomeni
18 section of Dar es Salaam. During this period of time, Hussein
19 is meeting with others who come to the house, but Khalfan is
20 basically not invited into the meetings.
21 In May, as events progress, he actually applies for
22 the passport, but as the FBI interview and I think as the
23 government's theory should be, if it's not actually, this has
24 nothing at all to do with this mission, with this Jihad job.
25 He still has this plan to go to London.
5875
1 In June of 1998, specifically, June 9, 1998, Khalfan
2 Mohamed purchases, in the sense that his name goes on the
3 documents, this 1989 Suzuki Samurai. He makes the purchase
4 with money that is provided by other people, not by him. He
5 never drives that Suzuki Samurai, so when the government talks
6 about what a crucial role it was in this offense for him to
7 buy that Suzuki, he have never drives it. He doesn't know how
8 to drive. He doesn't have a license.
9 And world events turn. Usama Bin Laden continues to
10 be something of a media darling, and on June 10, 1998, ABC
11 News airs its interview of Usama Bin Laden.
12 On June 15, 1998, using money that has been provided
13 by others, Khalfan Mohamed rents the house number 213 in the
14 Ilala section of Dar es Salaam. Remember, Hussein said the
15 house at Kidugalo Street is not suitable for what we want to
16 do and we need to relocate to a more suitable home.
17 On June 17, 1998, again you have heard the evidence,
18 somebody else, not Khalfan Mohamed, purchases a 1987 Nissan
19 Atlas, which is the truck, the refrigeration truck, which is
20 later used to carry the bomb to the embassy in Dar es Salaam.
21 That same person arranges for modifications to the truck and
22 also arranges to purchase two large truck batteries that are
23 needed to use to set the mechanism that will ignite this bomb
24 with such terrible results. He's not involved in any of this.
25 As we get closer to the bombing, according to the
5876
1 government's statement, at some point he is told it's not
2 Somalia. That's just according to the statement. We know on
3 July 31, 1998, that the engineer arrives at 213 Ilala to
4 actually wire the bomb. Others are using the Suzuki Samurai
5 now to bring the material to 213 Ilala to construct the bomb.
6 And as the date comes even closer, everybody has left
7 town. Everybody is gone. And now, sitting in a house at 213
8 Ilala, according to the government's statement, are Khalfan
9 Mohamed and the gentleman we call Ahmed the German, whose name
10 is Hamden Khalif al Awad, a man from Egypt, who will actually
11 be the one who drives the truck to the embassy.
12 On the day of the bombing, Ahmed the German calls his
13 family to say he is about to leave this life, and later that
14 day the bomb explodes at the embassy in Dar es Salaam, killing
15 11 people, I think injuring approximately 85 people.
16 According to the statement given to the FBI, Khalfan
17 rode a short distance with the truck that day as Ahmed the
18 German went wherever he was going, as far as Uhuru Road, in
19 the bomb truck. This is a map of Dar es Salaam, a more
20 detailed map than I can put up on the screen, and I want to
21 mark with a Post-it two areas.
22 First, I want to mark Ilala. You'll find Ilala, this
23 area right here of downtown Dar es Salaam, which I'm going to
24 mark with Ilala.
25 (Continued on next page)
5877
1 MR. RUHNKE: (Continuing) You will see, one of the
2 curious things about the 302, by which I mean this document,
3 the typed out document, as things get transposed from these
4 notes sometimes mistakes are made. In the typed 302 what is
5 said is that Ahmed the German goes to Uhuru Road, which is
6 right here -- you will have this in the jury room if you ask
7 for it -- and makes a right onto Uhuru Road. But what the
8 notes say accurately is that he makes a left. Khalfan Khamis
9 Mohamed leaves the truck at Uhuru Road. The truck turns left
10 towards Nelson Mandela Road -- that's this road here, and
11 there is a loop around Dar es Salaam, which if you have ever
12 been in Dar es Salaam or heard the agents tell you there is a
13 reason why you loop around Dar es Salaam if you want to get
14 anywhere. Drives up to this, I can't pronounce it, road, to
15 the Bogomoni Road, onto this area here, which is Oyster Bay,
16 which I showed you earlier on this map, and on this map you
17 will see in Oyster Bay right at this section a little street
18 called Laibon Road, and Laibon Road is right here where the
19 embassy was located. If you recall some of the pictures, you
20 see what appears to be a relatively modern highway on one side
21 of the picture and what seems to be a very unimproved road,
22 which is Laibon Road. This is the major highway, Al Hassan
23 road coming by the embassy. The truck starts here in Ilala.
24 You remember the one agent testified as you went to the bomb
25 house at 213 Ilala, made a short series of turns until you
5878
1 came to Uhuru Road, which is paved, and that is as far as
2 Khalfan Khamis Mohamed comes with the truck, according to the
3 statement. It makes a left onto Uhuru Road onto Nelson
4 Mandela Road and on its way to the American Embassy,
5 obviously, where it wound up.
6 In the aftermath of the bombing, the government
7 claims that it was Mr. Mohamed's role to clean up the site or
8 to clear the materials out so that they could not be tracked
9 down. On the day after the bombing, August 8, 1998, what he
10 actually does -- he is from a poor family. There are
11 household items that he basically can't see throwing away. If
12 he wanted to discard the items, they could have been discarded
13 on any of the rubbish heaps that mar downtown Dar es Salaam.
14 He takes a ceiling fan, a carpet, a wrench, a small child's
15 training type toilet, to be picked up at 213 Ilala by his
16 nephew and to be used by his family members.
17 On the same day, August 8, 1998, Khalfan Mohamed
18 departs Dar es Salaam by bus. If you look at a map of Africa,
19 you will see that the country next below Tanzania as you head
20 south is Mozambique. As you transit Mozambique, which is a
21 very large country, the next country you come down to is South
22 Africa. So he transits across Mozambique into South Africa.
23 Then from August 1998 through October 5, 1999 -- it's
24 12 months -- Khalfan Mohamed lives and works in Cape Town,
25 South Africa. He finds employment as a cook, as an assistant
5879
1 chef at a restaurant called Burger World, and he eventually is
2 invited to live with his employer's family. He has applied
3 for political asylum so he can remain in South Africa. It is
4 a false application for political asylum. On October 5, 1999,
5 while going to keep an immigration appointment -- instead of
6 immigration they call it the Office of Home Affairs in South
7 Africa -- he is met by immigration officers, placed under
8 arrest. FBI agents are there. He is taken to the airport in
9 Cape Town eventually, kept there for a couple of days,
10 interviewed by the agents on October 5 and October 6, and late
11 in the day on October 6 is placed in an airplane and flown
12 back to the United States of America. It is then February
13 2001 and it is now May 2001, and he is here on trial in New
14 York City.
15 That is when things happened. I want to talk a
16 little bit about who, the role of others -- you can knock that
17 chart down and put up chart 003, please.
18 In terms of the role in the offense, Mr. Cohn spoke
19 to you briefly and Judge Sand will talk to you in his
20 instructions about the idea of multiple conspiracies, interior
21 conspiracies, large and small. This is what the evidence is
22 in the case about the role in the offense, and now I am
23 talking about Dar es Salaam. Recall, please, that Mr. Mohamed
24 is not charged or believed or alleged to have had any role or
25 knowledge of the bombing that occurred in Nairobi.
5880
1 We have referred to Hussein, Mustafa Mohamed Fadhl,
2 who I think, if you summarize the evidence honestly, he can be
3 seen as the overall leader of the group in Dar es Salaam. He
4 can be seen as the one who truly recruited Khalfan Khamis
5 Mohamed to this plot. He can be seen as somebody who was
6 taking orders via cell phone from Nairobi. Another individual
7 provided funds for the purchase of the Suzuki Samurai. That
8 same individual purchased the Toyota Dyna truck in Nairobi.
9 That same individual also purchased oxygen and acetylene tanks
10 in Dar es Salaam. There is another individual involved in
11 this, according to the evidence, who helped transport the TNT
12 in the Suzuki Samurai and the other bomb-making materials, who
13 purchased the Nissan Atlas truck that was used in Dar es
14 Salaam, who also purchased oxygen and acetylene tanks used in
15 Dar es Salaam. There is another individual who wired the
16 bombs in Dar es Salaam, and also in Nairobi. According to the
17 evidence it is the same individual. And there is another
18 individual we know as Ahmed the German who drove the Nissan
19 Atlas to the American Embassy on Laibon Road, from Ilala to
20 the embassy, and pushed the button that destroyed and ended
21 his life and destroyed and ended 11 other lives and wounded so
22 many others, 85 other people. Mr. Ahmed, the German,
23 obviously died in the explosion.
24 Khalfan Khamis Mohamed, the evidence fairly suggests,
25 if you accept the statement and if you accept the government's
5881
1 view, and even taking the government's view, located the house
2 at 213 Ilala, and his name was used on the lease at 213 Ilala.
3 Other people did not put their name on that lease. His name
4 was placed on the Samurai, purchase of the Samurai. Again, he
5 didn't drive it, didn't know how to drive. His job was to
6 stay at home, stay in the house and deal with visitors. Clean
7 the place. He did manual labor, always at the direction of
8 others, in the assembly of the bomb, and rode a short way, a
9 very small piece of the journey with the driver on August 7,
10 1998.
11 Now I want to talk about the statement. If I could
12 see chart number 2, please. This is from the Khalfan
13 Khamis -- you'd think I'd say my client's name right after all
14 these months -- Khalfan Khamis Mohamed. Again, this is
15 Government's Exhibit 1021, and the interview notes themselves,
16 Government's Exhibit 1070. The reality and the truth of the
17 case is that, in broad strokes or in tiny details or somewhere
18 in between, the government's case against Khalfan Khamis
19 Mohamed rides and falls with the statement that the agents put
20 into evidence before you in this case. The reality is that
21 without his statement, without his decision to be cooperative
22 with the agents, there would be very little evidence linking
23 Khalfan Mohamed to these charges. Without his cooperation and
24 without deciding to talk with the agents there would be
25 evidence of things like his name being on a Suzuki Samurai,
5882
1 with his name being on the lease to the house. But it is the
2 government's theory and it is the government's benefit of that
3 statement that if accepted as true it fills in every detail of
4 what the government is now telling you Khalfan Mohamed did or
5 did not do in connection with this case.
6 You will see from the statement itself that the
7 agents made no real promises beyond saying that if you talk to
8 us, tell us the truth. Don't try to fool us. And if you do
9 talk to us and you do tell us the truth, we will bring that
10 home, we will tell the judge about it and we will tell the
11 prosecutors that you were truthful and cooperative and
12 helpful. I believe, without speaking for the United States
13 government, that the government believes that this was a
14 truthful and accurate statement and that Khalfan Mohamed was
15 cooperative with the agents as he was making it.
16 I say that about the statement and now let me say
17 this about the statement. It is the year 2001. We are on the
18 dawn of and are in the 21st century. It is a century of
19 amazing technology. It's a century and a time when, as I said
20 before, Usama Bin Laden, in the rugged mountains of the Hindu
21 wash in Afghanistan can pick up a satellite phone, the jihad
22 phone, I think the government called it, can pick up the jihad
23 phone and point it at a satellite hovering somewhere over the
24 Indian Ocean and speak to anybody in the world. The FBI
25 detected on my client's clothes submolecular quantities of
5883
1 TNT, could detect things that you can't see with a microscope.
2 You have heard evidence about computer drives being
3 replicated. Poor Mr. El Hage, every time he picked up the
4 phone, some robot was picking up the date and the time from
5 Nairobi, Kenya, and the government was listening in to what
6 Wadih El Hage was doing on the telephone.
7 Now I want to take you back and say it is no longer
8 the dawn of the 21st century, and let's arbitrarily say it is
9 the dawn of the 19th century, it is 1801, not 2001. The
10 police are about to take a statement from a very important
11 person to a very important investigation. What would the good
12 detective constable here in New York City have done in 1801 to
13 take the statement? The good detective constable would have
14 sat down with a note pad, perhaps a quill pen, and tried to
15 take down notes as to what the person was saying, and later on
16 perhaps, the detective constable would take those notes and
17 try to remember what was said, and put them into a much longer
18 summary of what was said. And if we went into the 19th
19 century, to the mid-19th century, to the 1860's or the 1870's,
20 my God, technology had improved to the point where we had
21 typewriters, where not only could notes be taken, but now,
22 instead of having to handwrite the statement, it could be
23 typewritten.
24 The FBI is stuck in the 19th century in terms of
25 taking down the information from important witnesses. I don't
5884
1 blame the field agents. The field agents don't make policy.
2 But somewhere some genius in Washington has decided that you
3 ladies and gentlemen of the jury are not entitled to hear the
4 questions that were asked and you are not entitled to hear the
5 answers that were given and judge for yourself, in a case, in
6 an interview that was conducted in English of a man from
7 Tanzania, from Zanzibar, who speaks Swahili, who has a command
8 of the English language that is certainly OK. But wouldn't
9 you want to know what was miscommunication? We all say
10 things, we hear them later on, I didn't mean to say that. How
11 many times have I mistaken my client's name today when I know
12 it as well as I know my own name?
13 The FBI would prefer to live in the 19th century
14 because this is how this document came to be. You will see at
15 the bottom of the document that this conversation occurred
16 October 5, 1999, again, more than a year after the bombing.
17 You will see where it occurred. It occurred in South Africa
18 and parts of the interview occurred on the airplane that left
19 Cape Town airport and flew back to the United States, I think
20 to Stewart Air Force Base in Westchester County. Then you
21 will see that over a two-day period after they got back the
22 agents put together a report that was actually not dictated or
23 put down for further refinement until October 9, 1999.
24 I guarantee, in the sense that we can all infer
25 things that we don't actually see, that it is a fair inference
5885
1 that you would see Agent Michael Forshea and Agent Abigail
2 Perkins, perhaps in the company of an assistant United States
3 attorney, saying what did he say about this, my notes say
4 this, my notes say that, yeah, yeah, that's what he said,
5 resolving those issues and those questions and producing this
6 19th century document. You can buy a tape recorder for $25 at
7 J & R around the corner. If you are worried about one of the
8 tape recorders failing, go ahead, splurge, by two tape
9 recorders. If you are worried about both tape recorders
10 failing, maybe you have to resort to the notes.
11 This statement is such an important aspect of the
12 government's case, and to live in the 19th century, I suggest
13 respectfully, is a decision that is made that the government
14 would rather have you hear it from the FBI than hear it as it
15 happened. So you don't have it as it happened, you have it as
16 the FBI said it happened.
17 So let's go into the statement itself and some of
18 these things that just jump out to you about the statement.
19 For example, at the very beginning of the 302 you see the
20 following statement. The government refers to him as KKM, the
21 FBI refers to him as KKM, with his initials. This is after he
22 has gotten his advice of rights in Swahili and in English and
23 agrees to speak with the interviewing agents without a lawyer
24 present, and the following is written down. KKM asked if he
25 was going to see America, and investigating agents responded
5886
1 yes, that there was a good chance that he would. KKM was
2 asked later if he had a choice between going to America or
3 going to Tanzania, where would he want to go. KKM responded
4 twice, take me to America.
5 If you look at the statement, you begin to see some
6 of this at the beginning. What difference does it make later
7 on where he wants to go? And you begin to follow it. This is
8 Agent Perkins' handwriting, which is difficult but not
9 impossible to follow. And you see the reference, he was asked
10 if he had any questions, he asked if he was going to go to see
11 America, and Special Agent Forshea, you can actually see that,
12 told him yes. He stated he had no further questions and he
13 was ready to talk to us.
14 Other things that come out of this thing about
15 Khalfan Mohamed, the statement. First of all, in determining
16 his role and where he fits in and what he is all about.
17 Understand that he never heard the term bayat. Understand
18 that he has heard the words Al Qaeda, but he has never heard
19 of an organization called Al Qaeda. That he was never
20 contacted after the training.
21 On page 11 of this 302 he explains what I think
22 everybody accepts, that he first learned about the Nairobi
23 bombing after it happened, and he had no prior knowledge of
24 that bombing. He explains that he never drove the Suzuki
25 Samurai and that he didn't know how to drive. He explains
5887
1 what his responsibilities were, which was to take care of the
2 house, to be in the house if neighbors came over, and he spent
3 a lot of time in the house. And when leaving Dar es Salaam,
4 what he told his nephew was to rent the house and give the
5 money to his mother. The house, remember, had been rented,
6 one year's rent had been paid in advance, the lease had been
7 signed, so go ahead, we have the house rented, and see if you
8 can get the money to my mother in Kidimni. He left things
9 behind to get the money to his sister and mother. He had to
10 ask what TNT was. There is a reference in the report that he
11 took some advanced training but not a lot. At page 14 and 15,
12 you will see that he did not know what TNT was, and he had to
13 ask Hussein what the stuff is. The handwritten notes at page
14 48 bear that out.
15 There are some interesting things that appear in the
16 handwritten notes that don't appear in the typed 302, and it
17 is significant for your evaluation of his role.
18 At the bottom of page 48 of the handwritten notes it
19 says here, discussing the bombing, does not believe any of
20 their group could have put the bomb together, just Abdel
21 Rahman or Ahmed the driver.
22 So any thought that Khalfan Mohamed could have had
23 the expertise to actually wire this bomb together, according
24 to the notes he did not, and the only people in the group who
25 had the expertise to do this were Abdel Rahman or Ahmed the
5888
1 driver. You can search the typed 302 for the rest of your
2 jury service and not find a reference to that.
3 You can see that he did not know, at page 17 -- he
4 didn't know what the cylinder tanks were, why they were being
5 used or what was inside the tanks, if anything at all. He
6 does not know how to go to the American Embassy. Certainly by
7 October of 1999 he knew that the American Embassy had been
8 bombed, but he does not know what the route was that was
9 actually taken by Ahmed. And in fact he had never been to the
10 American Embassy in Dar es Salaam and did not know where it
11 was.
12 The money used by him throughout this process was
13 always, always provided by Hussein, by others. You have heard
14 talk about the cell phone that was used in Dar es Salaam to
15 maintain contact with individuals in Nairobi. He was allowed
16 to use the cell phone one time and he called his sisters.
17 When the others left, he was asked to stay behind in order to
18 assist Ahmed, who spoke no Swahili.
19 He emphasize to the agents that the purpose of
20 getting the passport had nothing to do with this case and that
21 he was going to London to live with his brother, or even if
22 his brother wasn't there to start a new life in London, prior
23 to becoming involved with Hussein and the group and the jihad
24 job that was proposed to him. The passport was issued
25 coincidentally after he had been asked to participate. But
5889
1 the government makes it that there were four that were part of
2 the plot.
3 I also take issue with Mr. Karas's statement that
4 this was typical Al Qaeda activity, travel on a false
5 passport. Whatever typical Al Qaeda means, I think the
6 government's idea was this idea of creating passports, forging
7 passports, having visas scanned into computer. This was a
8 passport that was applied for in a false name. It is no
9 better than that but it is certainly no worse than that. It
10 is not an Al Qaeda trademark or operation.
11 After he learned about the bombing, after he was in
12 South Africa he made one single attempt to contact the group
13 from South Africa. He had been given a number in Yemen that
14 belonged to, supposedly, Abdel Rahman, who apparently answered
15 the phone. But Khalfan Mohamed was calling with a calling
16 card. He had no real need to call. He was just trying to see
17 if it worked if he ever did need help, and he spoke briefly
18 with Abdel Rahman in Yemen.
19 You will see throughout the 302 and throughout the
20 interview notes that the government is pushing and pushing and
21 pushing on the issue of what he knows about Usama Bin Laden
22 and what his relation was to Usama Bin Laden and the overall
23 organization.
24 You will see that in the 302, which is the typed
25 report, the 19th century technology report, Usama Bin Laden
5890
1 was to him a sheik, a scholar and a leader. Interestingly,
2 the agents made very little attempt to distinguish between
3 what he knew or thought about Usama Bin Laden prior to August
4 1998 and what he knew or thought about Usama Bin Laden in the
5 14 months afterward, after the bombing and before the
6 interview. He never met Usama Bin Laden, he never heard him
7 speak. He said later on in the documents that he had never
8 heard of a fatwah to kill Americans, although interestingly,
9 according to the 302 statement, he is asked about innocent
10 people who died in the embassy bombing. He says well, Allah
11 will take care of them. So although he has never heard the
12 Bin Laden fatwahs or maybe the Al Qaeda declarations on what
13 is Islamically right or not Islamically right, that is a sort
14 of eerie echo of -- of who? Remember Abu Hajer al Iraqi, also
15 known as Mamdouh Ahmed Salim, one of the old ones, a very
16 powerful figure on the ruling council, the shura council of Al
17 Qaeda, a very imposing man as you see his picture, somebody
18 who had memorized the Koran, somebody whose opinions were
19 valued, who, citing an example from Islamic history, said that
20 if you kill people and they are your enemies they deserve to
21 die, and if you kill and they are innocent they will go to
22 heaven and Allah will take care of them. Although he has not
23 heard the direct words, that's the kind of thing that he is
24 hearing. It's the kind of thing that is out there in the
25 world that he is inhabiting in Dar es Salaam during this
5891
1 period of time.
2 But it does get into the 302, that he will consider
3 his group, part of Bin Laden's group, and, it is quoted,
4 because they all share the same feelings. That is what is
5 contained in the 302 at page 25. It is of obvious
6 significance to the agents that Mr. Mohamed be tied to Mr. Bin
7 Laden's groups, to make this overarching conspiracy a reality.
8 You will see, especially in the interview notes, that there is
9 back and forth about this, that they are recording in their
10 interviews, and you would love to hear what was said. But I
11 will tell you what appears at page 55. I say 54 because we
12 renumbered them when there was a card in here. The exhibit
13 that you will have is page 55. He said he is not sure what
14 Bin Laden looked like. He did hear a few times that Bin Laden
15 was responsible for bombings -- from the news. In other
16 words, he is listening to the news in South Africa after the
17 bombings for almost a year, more than a year. So he heard
18 that Bin Laden was responsible for bombings from the news but
19 before the bombing Bin Laden could be his leader, could not be
20 his leader, maybe yes, maybe not. This is a quote from the
21 notes. Never felt he was part of Bin Laden's group. Quote
22 from the notes. Never felt he was part of Bin Laden's group.
23 And yet in the typed 302, that gets translated to, would
24 consider his group part of Bin Laden's group because they all
25 share the same feelings. Wouldn't you like to know and
5892
1 wouldn't you like to have our government trust you with
2 knowing what was actually said at that moment, whether the
3 notes are wrong or whether the 302 is wrong or whether the 302
4 is simply an interpretation of the notes, or how this seeming
5 contradiction on such an important issue -- this is not that
6 he turned left or right on Uhuru Road. This is, is he or is
7 he not a member of this large worldwide overarching conspiracy
8 that we have been trying and hearing about since February 5.
9 Those are some comments I make on the 302's. It is
10 certainly going to be -- final comments in terms of role and
11 everything else. How did he take direction? When it came
12 time to doing the kind of physical labor that we talked about
13 regarding the bomb, directions came from Abdul Rahman, when
14 Abdul Rahman wasn't the boss, Hussein was the boss and told
15 him what to do.
16 I am just about finished with my remarks on behalf of
17 Khalfan Khamis Mohamed. Whether he knew and when he knew
18 whether this bomb was intended, when he thought he was going
19 to go fight in Somalia, whether he thought he was going to
20 fight in Bosnia some day, the evidence that you heard is for
21 you to consider and for you to decide. It is not my role to
22 tell you how to decide this case, as I told you. It is not
23 the prosecutor's role to tell you how to decide this case. It
24 is not the other defense lawyers especially, since they
25 represent their own individual clients and seek justice that
5893
1 may have different definitions on trial and justice may take
2 different interpretations. Justice may be not guilty in one
3 situation, it may be guilty in another situation.
4 I can't ask for anything more from a jury, you folks,
5 this particular jury -- there are 16 of you now. Only 12 of
6 you are actually going to get to deliberate, and that may be
7 an overstatement of the benefit, to deliberate on a verdict in
8 this case. All I can ask you to do is do justice as you see
9 it, to find the facts as fairly presented, and to return your
10 verdict. We may not welcome the verdict that you return, but
11 may you return a verdict that has integrity to it, that
12 follows a conscientious application of the laws. We are going
13 to respect your verdict and we will respect you as a jury for
14 the process that you have undergone. I thank you very much.
15 THE COURT: Thank you, Mr. Ruhnke. We will break for
16 lunch and we will resume at 2:15.
17 (Luncheon recess)
18
19
20
21
22
23
24
25
5894
1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 THE COURT: Let's bring in the jury.
4 MR. RUHNKE: Your Honor, a brief housekeeping. I had
5 ask the Court to respond to the government's Brady letter by
6 tomorrow morning. What I would like to do is bring my
7 response Thursday. We're starting late on Thursday.
8 THE COURT: Yes.
9 (Jury present)
10 THE COURT: We now are at the stage of the
11 proceedings where the government has its opportunity to make
12 rebuttal argument.
13 Mr. Fitzgerald.
14 MR. FITZGERALD: Thank you, Judge.
15 Good afternoon.
16 THE JURY: Good afternoon.
17 MR. FITZGERALD: What we do here, all of us, is
18 important work. And let's just get to work. Let's dive right
19 into it.
20 If I happen to talk too fast at any point, it may
21 have happened once or twice during the trial, put your hands
22 up. I'm not offended. It's happened before. Just give me
23 that look that I need decaf. and I'll slow down.
24 I'm going to go in order. I'll start by addressing
25 the El Hage summation and work from there. And let me try to
5895
1 give you some topics we'll cover in rebutting the El Hage
2 closing.
3 I would like to talk to you about the witnesses
4 Al-Fadl and Kherchtou, first Al-Fadl, then Kherchtou, and how
5 they fit together, what they mean in this case.
6 Then I would like to talk to you about the issue of
7 Somalia, what was proved, what was not proved, what it means
8 and what it doesn't.
9 Then I would like to talk to you about the issue of
10 perjury. Perjury is an important part of the case against El
11 Hage, but certainly not the only part.
12 Then I would like to talk to you about Wadih El Hage
13 coming back to America in September of 1997 and the way he was
14 portrayed by Mr. Schmidt as a great American coming home to
15 the country he loved.
16 And then I would like to talk to you about the
17 conspiracy, the conspiracy charged in Count One of al Qaeda
18 members and associates, and others conspiring to kill
19 Americans.
20 And while I cover those topics, I would like to also
21 focus on a theme. Mr. Schmidt said to you during his
22 summation, "presentation is very important in this case
23 because the government doesn't have the evidence." Then he
24 continued that "presentation, form, is attempting to triumph
25 over substance," as if there is a game here. There's no
5896
1 evidence, slight of hand, that's the proof. I want to keep
2 that comment, that assertion by Mr. Schmidt in mind as we go
3 through the different topics, his assertion that the
4 government is trying to have form over substance.
5 Al-Fadl. You have heard a lot about Al-Fadl. Let me
6 tell you a couple of things to think about when you consider
7 Al-Fadl.
8 It's not whether you like him. No one is here to
9 decide whether you like Al-Fadl, a guy who joined a terrorist
10 group, stole the terrorist group's money. No one really cares
11 that he stole the terrorist group's money. We wish he stole
12 it all so they couldn't do anything.
13 What you are here to decide is whether what he told
14 you about what he knew was the truth, not whether you like
15 him. It's not whether you think he's like Mother Theresa,
16 because she's at the other end. Mother Theresa doesn't join
17 al Qaeda, al-Fadl does.
18 People don't leave al Qaeda easily, but if you are
19 caught stealing, you leave, okay? No one asks you to make him
20 your friend. No one asks you to decide whether you want to
21 have dinner with him. The question is, is what he told you
22 the truth.
23 Second point: It's what you think. That's why you
24 are here. That's why you are picked. That's why you are in
25 the jury box, not me, not Mr. Schmidt. Don't worry about who
5897
1 pounds the table the hardest as to whether he told the truth
2 or didn't. You size people up every day. You know how to do
3 that. You do it for yourself.
4 When you go about sizing up what Mr. Al-Fadl told
5 you, be aware of two things. He has a cooperation agreement
6 with the government. It's in evidence. Don't worry, I'm not
7 going to read it out loud to you. But it's there. It's
8 Government Exhibit No. 1 that tells you what the terms of his
9 deal are.
10 And I submit to you there is no doubt that Al-Fadl
11 looks out for number one. Number one is Al-Fadl. There's no
12 doubt that he has an interest in testifying. The question for
13 you is, how does that interest affect what he says? Does it
14 give him a motive to make things up, or does it give him a
15 motive not to do that because he may lose something if he gets
16 caught in a lie? You can look at that agreement and see what
17 happens to him if he lies.
18 The fourth thing, fourth thing I want to say about
19 Al-Fadl is look at the corroboration. "Corroboration" is just
20 a fancy word for whether or not what he says checks out.
21 Having that in mind, let me go through some of the
22 things he told you. One of the most important things you can
23 think about when you think about Al-Fadl is the process by
24 which he ended up in the witness stand, because you remember
25 he left the al Qaeda terrorist group late '95, early 1996 and
5898
1 he went around and he approached the United States Government
2 overseas in the summer of 1996. Then he was debriefed.
3 People interviewed him. They took notes in the late
4 summer and the fall of 1996. He is telling what he knows and
5 they are writing it down. It will be checked out five years
6 later in this courtroom.
7 When he talks and he says what al Qaeda is, who is in
8 al Qaeda, what it does, what it has done, he has no idea who's
9 going to walk in behind him, he has no idea who may testify,
10 he has no idea what phones may be wiretapped. He has no idea
11 what houses may be searched in the five years between what he
12 says and when he comes to court. I submit to you when you saw
13 him testify, when you saw the stipulations about what seemed
14 inconsistent between what he said in court and what he said in
15 1996, it was minor.
16 What did he tell you? He told you al Qaeda was an
17 organization. He told you the structure: The emir, the Shura
18 Council, the committees. He told you who were on these
19 committees. He told you it worked very, very closely with the
20 Egyptian Islamic group, headed by that guy Ayman al Zawahiri,
21 the Egyptian guy. I should hold up his picture, but I forgot
22 to pull it up.
23 He told you that America was the enemy of al Qaeda
24 back when he left the group in 1996. He's planning and said
25 America is the enemy of al Qaeda. And he told you that he
5899
1 learned in al Qaeda that al Qaeda felt responsible for what
2 they did in Somalia to go against the Americans. And he told
3 you from what he understood of the group, that the group was
4 willing to attack Americans everywhere -- in the United
5 States, outside the United States, and even embassies.
6 Now, he said all that. He's got to worry about who
7 comes in behind him, what facts are unearthed later, and let
8 me tell you about three people who came along to corroborate
9 Al-Fadl. I'm not talking about Kherchtou at this moment, I'm
10 talking about Usama Bin Laden, Harun -- Fadhl -- the famous
11 Harun you've heard so much about, and a man in this courtroom,
12 Wadih El Hage.
13 What did we learn?
14 By the way, Al-Fadl also told you the reasons why al
15 Qaeda didn't like America. It was America being present in
16 the Saudi Arabian Peninsula which was viewed as being
17 unacceptable. He told you it was the Americans coming to
18 Somalia which was viewed as colonization. He told you that al
19 Qaeda was angry at America because this person Omar Abdel
20 Rahman was arrested. And he even told you the name of the
21 Islamic scholar that gave them the justification, that person
22 Ibn al Tamiyeh, that you have heard about several times.
23 Well, along comes Bin Laden. Bin Laden decides in
24 the fall of 1996 to declare war openly, publicly on the
25 American military, a declaration of Jihad against the American
5900
1 military. Lo and behold, Bin Laden tells you that the enemy
2 of al Qaeda is America, just like Al-Fadl did.
3 Bin Laden says in the 1997 CNN interview that he's
4 just targeting the United States. That's the main enemy. In
5 February of 1998, when Bin Laden issues the fatwah, the ruling
6 that says you can kill civilians and military, he does it
7 jointly with the Egyptian Islamic Jihad, signed by Ayman al
8 Zawahiri, the same group that Al-Fadl says they were working
9 so closely with. A lucky guess? No.
10 In May 1998, Bin Laden in his speech would single out
11 embassies when he spoke to ABC, and say after the Khobar
12 bombing, the American embassies are being used to gather
13 information. A dark, sinister hint. And then in August of
14 1998, as you have now seen, Bin Laden, his organization,
15 bombed the embassies in Africa. Certainly Bin Laden never did
16 any of that to corroborate Al-Fadl, but it does.
17 Bin Laden gave reasons in his speeches. He said he
18 was angry at America for its presence in Saudi Arabia. He
19 talked about the United States in Somalia. He talked about
20 the arrest of Omar Abdel Rahman, and he cited the scholar Ibn
21 al Tamiyeh.
22 In fact, in Bin Laden's speeches, if you look
23 carefully at Government Exhibit 1600A-T -- and I'll try not
24 read too many exhibits, but in 1600A-T Bin Laden even made
25 clear -- that's the declaration of Jihad -- that while he was
5901
1 in the Sudan, he wasn't allowed to talk.
2 And then he left the Sudan and he went to the Hindu
3 Kush, the mountains in Afghanistan, and now he could talk,
4 showing you that the hatred of America, attacking America,
5 America being the enemy was talked about privately before
6 because the Sudanese government kept him muzzled,
7 corroborating again that there was a private discussion about
8 America, the enemy within the group, but not public until he
9 makes it to Afghanistan.
10 Harun Fadhl. How in the world did you ever expect
11 that this man would come along and corroborate what he must
12 view as a trader? Well, what did he tell you? You remember
13 that report, which we're going to talk about a number of
14 times, 300A-T. It's the security report in the summer of
15 1997.
16 What does Harun talk about in there? Well, he thinks
17 that America is talking to an insider, not to Al-Fadl, but to
18 that person Abu Fadhl al Makkee. The best way to describe
19 him: The guy with the missing leg below the knee who is
20 married to Bin Laden's niece.
21 And when he's in a panic, what does he write in a
22 report, not for the newspaper but a report to go back to the
23 headquarters in Afghanistan? Oh, my God, we're in trouble.
24 America knows well we're the people who hit the Americans in
25 Somalia. Wow. That's in 1997, corroborating what Al-Fadl
5902
1 told you.
2 Harun also told you that they were panicked about
3 that same person, Madani al Tayyib. That's the same person as
4 Abu Fadhl al Makkee that Al-Fadl told you all about. He is
5 saying to you, not meaning to, he got it right. Abu Fadhl's
6 in our group, our group exists, we are fighting America and we
7 fought America in Somalia.
8 Even El Hage corroborates Al-Fadl. Mr. Schmidt
9 talked to you about the bicycle story. What did Mr. Al-Fadl
10 tell you about the bicycles? He said Wadih El Hage travels
11 overseas. He goes to buy bicycles. And I basically look at
12 him and say, what's up with that? On the third guy signing an
13 al Qaeda contract, you're buying bicycles, and what is his
14 answer? Is the answer that Al-Fadl gives you, oh, he said I
15 wasn't buying bicycles, I'm buying nuclear weapons? He just
16 said Al-Fadl smiled. That left you with the impression that
17 you don't know, did he buy bikes or did he buy something else
18 as well?
19 I submit to you, you have seen on the defense case
20 that he went and he bought bikes and in his notes he bought
21 bikes. But what did he see in August '97? Mohamed Ali Odeh
22 thought that Wadih El Hage went to Pakistan for strictly gems.
23 So Wadih El Hage took a detour and went to see Bin Laden. You
24 still don't know what happened. All my point is, Al-Fadl
25 didn't make it up. There was a bike deal. He had a
5903
1 conversation. He didn't add anything to it.
2 Now, what's the most important thing Al-Fadl tells
3 you? The most important thing that Al-Fadl tells you is
4 precisely the fact that there is no secret in al Qaeda that
5 America is the enemy, we're at war with America, we were at
6 war with America in Somalia, and it goes way back to at least
7 1993 if not 1992.
8 And remember, when we talk about a terrorist group
9 keeping secrets, sure, you have to keep secrets at times about
10 operations, but a terrorist group can't keep its enemy secret
11 from its members. You're joining a group to fight the enemy.
12 You join a group and not know who you are supposed to fight?
13 They know they're fighting America. They may not know all the
14 operations. Someone can do a surveillance and not tell
15 someone else, that's smart, but you know who you are against.
16 Let's talk about Kherchtou. Kherchtou is another
17 cooperating witness, and again his cooperation agreement is in
18 evidence and you can look at what it says and what the
19 incentives are.
20 Mr. Schmidt would like you to believe that Kherchtou
21 doesn't really hurt Wadih El Hage's case except that he's
22 lying whenever he does. Kherchtou hurts Wadih El Hage's case
23 without even trying. He tells you, Who is Abu Ubaidah? He's
24 the military commander of al Qaeda. What happened to him? He
25 drowned. What did Wadih do when he learned it? He cried.
5904
1 The guy who stood in front of a Grand Jury in this courthouse,
2 took an oath and says "I know nothing about that" is crying
3 over Abu Ubaidah drowning.
4 Does Kherchtou know what he said in the Grand Jury?
5 Al Qaeda knew its military commander drowned. Kherchtou tells
6 you that El Hage replaced Khalid al Fawwaz as the boss.
7 Because remember, and you will see this theme later, when
8 Fawwaz was in trouble in Nairobi, when he got arrested, when
9 the heat's on and he's in jail, he gets out of town. Go hide
10 in open view in London, say I'm the spokesman, go over there,
11 take the heat off the cell. And who comes to replace him but
12 Wadih El Hage.
13 You know what? Do you know how you know that
14 Kherchtou knows less about Wadih El Hage than you do now?
15 Kherchtou is asked by Mr. Schmidt -- and bear this in mind
16 when you think about form over substance -- Kherchtou is asked
17 by Mr. Schmidt, transcript at 1413:
18 "Did you become aware that Harun," Harun, "was
19 involved in false passports or other fraudulent documents?"
20 "Kherchtou: Yes.
21 "Mr. Schmidt: Did you ever see Wadih El Hage
22 involved with false passports?
23 "Kherchtou: No."
24 Kherchtou didn't know. Kherchtou didn't see the
25 letter you saw going back and forth, that Libyan guy in
5905
1 Azerbaijan. There was a wiretap you saw conversations of
2 where Wadih El Hage is involved with a DHL, sending a package
3 and fixing the office and cleaning the green.
4 Wadih El Hage, even Mr. Schmidt seems to concede, was
5 involved with passports when he says, "It doesn't really
6 matter, because that's okay in the third world. Only you
7 suspicious Americans think that's something bad." I submit to
8 you, Kherchtou didn't know as much as you did and you will see
9 that throughout; that you have seen so many different pieces
10 of the puzzle that you now know about particular things more
11 than any one witness. And if Kherchtou wanted to make it up,
12 wouldn't he have just said, yeah, I saw Wadih do passports?
13 But he didn't. He told you what he knew and what he didn't
14 know.
15 Kherchtou told you that he sat in Wadih El Hage's
16 house with Ali Mohamed, a person Abu Mohamed al Amriki,
17 several pictures of him, the guy who did the surveillance, and
18 said that the military commander wanted Kherchtou and Ali
19 Mohamed to go over to Senegal and surveil targets. He never
20 reached. He said Wadih El Hage was present. He was in his
21 house. He could have. Wadih El Hage would be in the area.
22 He doesn't have to worry. But he doesn't.
23 And you will see later that when Kherchtou told you
24 the story about al Fawwaz being arrested, he told you that
25 they paid bribes, they went to a lawyer and they went to a
5906
1 contact in the Kenyan Intelligence Service, a guy named Ali.
2 He never once indicated that Wadih El Hage knew Ali or knew
3 about him. And yet when you look through Wadih El Hage's
4 notebooks you will see later on that Wadih El Hage had an
5 entry in his notebook that said, "Ali from Kenyan Intelligence
6 can help us with the organization." Kherchtou didn't reach.
7 Now, I submit to you the one thing that Mr. Schmidt
8 cannot accept is that Mr. Kherchtou believes but doesn't know,
9 but believes that Wadih El Hage is a member of al Qaeda. And
10 let's talk about form over substance, because it's
11 interesting.
12 On the government's direct examination, I will cite
13 transcript 76. You can check it. Kherchtou is asked right up
14 front:
15 "Do you know if Wadih El Hage made bayat?" He said
16 no. He was asked: "Were you ever told that there was
17 anything that could not be discussed in front of Wadih El
18 Hage?" And he said no. So he doesn't know if he made bayat,
19 he didn't see a bayat, but there was nothing he understood he
20 could not discuss.
21 Mr. Schmidt, asking Kherchtou on cross -- I'll
22 display the first one. 1365 of the transcript asks about a
23 number of people and whether they are in al Qaeda. But watch
24 the form, the form of the question:
25 "And you believed that he was not a member of al
5907
1 Qaeda, correct? Is that correct?
2 "Answer: Yes."
3 I won't show all of these. I'll read them to you and
4 give you the cite. 1372 about Ahmed Sheik: "You are fairly
5 confident that he is not a member of al Qaeda, correct?" 1375
6 about Abu Khadija: "You were not aware that he is a member of
7 al Qaeda; is that correct?"
8 1376 about Dr. Mubaraka: "Dr. Mubaraka, to your
9 knowledge, is not a member of al Qaeda; is that correct?"
10 "Hamza al Liby, to your knowledge, you do not believe
11 he is al Qaeda, correct? Someone else, do you know if he was
12 al Qaeda?"
13 1377, "Abu Muath, was he al Qaeda?" And it goes on
14 for several pages.
15 Then we go to transcript 1401, I believe, when it
16 gets to El Hage it's not "do you believe he's a member."
17 "Now, so is it fair that you do not know --
18 withdrawn. You have no actual knowledge that Mr. El Hage ever
19 took bayat in al Qaeda; is that correct?
20 "Answer: Yes."
21 And he wants to talk to you about form over
22 substance.
23 Then it came back on redirect and Mr. Kherchtou was
24 asked, "Do you believe he's in al Qaeda?" And he said "yes."
25 And then he was crossed again on facts that he said before he
5908
1 did not know that people in al Qaeda discussed that they did
2 not know, and that fact is remarkable because most people are
3 in al Qaeda or they're not, but some of the big people being
4 Abu Hafs, Abu Hajer, people don't know if they made bayat, but
5 they know they're important.
6 And then at 1561 to 1562, what Kherchtou said -- I
7 hope I'm on the right page -- bottom of the page, line 24,
8 when asked what he understood, he said: "That is true. But
9 when I have indicated or mentioned that he is a member of the
10 al Qaeda, it," next page, "it was in relation or in reference
11 to the way that we were relating to him, and it was open in
12 how he handled matters."
13 Skipping over the colloquy, continuing the answer:
14 "Persons who are not members in the al Qaeda, we cannot talk
15 to them openly as the way we address members of the al Qaeda
16 and as the way we addressed him."
17 Now, you know what, as we have said many a time and
18 the judge will explain to you, you don't have to be a member
19 of al Qaeda to be part of the Count One or the other count
20 conspiracies which are made up of people who are in al Qaeda
21 and who are not. And just the same, to be fair, just because
22 you are in al Qaeda doesn't make you part of the conspiracy.
23 But focus on the form. It was brought out fairly.
24 He didn't know about the bayat, but he could talk. When it
25 came down to that, I submit to you El Hage could not deal with
5909
1 the fact that someone he knew believed he's an al Qaeda
2 member. I submit to you, as you sit here today, there are
3 people in this room, looking at us now, who never saw any of
4 you take an oath who have good reason to believe that you are
5 jurors.
6 What about America? What did Kherchtou tell you
7 about al Qaeda's role with regard or position with regard to
8 America? He said something different than Al-Fadl, and let's
9 recognize that.
10 Al-Fadl is back at headquarters, the person back at
11 Sudan. He hears his speeches and he says, yes, Bin Laden said
12 this about the head of the snake and this about fighting the
13 Americans, and we'll see some corroboration of what Al-Fadl
14 said about specific trips into Somalia by the military
15 commander.
16 But he heard it that way. Kherchtou's a field guy.
17 He's helping people in Nairobi go to Somalia. He's taking
18 flying lessons. And what did he tell you? He knew, he knew
19 from talking to the people going up to Somalia, like Harun and
20 Saleh. And we'll get to how Harun exaggerates later, because
21 what Harun told him about what Harun and Saleh did, they were
22 together. Harun and Saleh were talking to Kherchtou. Harun
23 is going to make up what Saleh did in front of Saleh.
24 Kherchtou told you he understood that America was the
25 enemy. It was so obvious to him he wouldn't remember
5910
1 particular remarks. Let me give you an analogy, but let me
2 tell you why the analogy doesn't work.
3 We are not here treating al Qaeda as a country. We
4 are not here treating Usama Bin Laden as a head of state.
5 It's a terrorist group. They may think they are a country,
6 they may think they get the right to act like a country. They
7 don't. We're not here talking about a military enterprise.
8 They can call it military, but it's terrorist.
9 Putting that aside, how many of you remember back in
10 the days when there was a Cold War how you learned that the
11 Soviet Union or Russia was the enemy of America? Can you sit
12 down and point to a conversation and say I learned it on that
13 day? Would it be so obvious to you who the enemy was that if
14 someone came back now and said, prove you knew. Who you told
15 you? Did you ever hear the president say something bad about
16 them? I don't know, I knew.
17 If he said something bad back then, it wouldn't stick
18 in my mind. He also said the surveillance team coming to
19 Nairobi brought it home to him; dealing with the people who
20 were going to Somalia, even though he didn't go himself, made
21 it clear to him from what Saleh and Harun said they were
22 fighting the Americans.
23 I submit to you when you take Kherchtou and Al-Fadl
24 together, two people from different parts of al Qaeda, when
25 they come together and they tell you, yes, we were in al Qaeda
5911
1 and we knew back in '93 that America was the enemy, that's the
2 problem for El Hage. And that's the problem for Odeh as well,
3 as we'll see later, because you are in a group from 1993 that
4 you know is making America its enemy, that is making war in
5 America, and you do that and you want to help the group do
6 that, I submit to you that's a long way along the way to
7 conspiracy.
8 Let's talk about Somalia. Mr. Schmidt told you --
9 actually, before we talk about the factual issues in Somalia,
10 let's talk about something.
11 Where did Somalia fit in in this case? Well, you may
12 or may not be surprised to learn there is no charge in this
13 case, no single count that talks about Somalia alone. There's
14 no one killed in Somalia that's charged as a murder count.
15 The participation in Somalia is charged and, I submit, proven
16 to you as part of the conspiracy, the ongoing conspiracy to do
17 various things to attack America.
18 And I'll make very plain: No one in this courtroom
19 took any weapon. We contend we didn't prove, we don't allege
20 that anyone in this courtroom picked up a gun and shot and
21 killed an American. Not Mr. Odeh, not Mr. El Hage, we don't
22 even contend Al-'Owhali ever went to Somalia. K.K. Mohamed
23 didn't go for years later.
24 What is important is if the people working in al
25 Qaeda understood that in 1993 that the U.S. participating with
5912
1 the U.N. coming to Somalia was colonization, an enemy, and
2 they are working to fight America, that puts the line for the
3 claim that years later they're surprised, surprised to learn
4 America is the enemy, that this was something new. It only
5 came out when Bin Laden made that speech.
6 I submit to you that Somalia proves that the group
7 was working against America way back then. And they believed
8 in their own internal discussions, they believed they were
9 responsible for what happened to the Americans in Somalia.
10 Harun telling Kherchtou in front of Saleh, we were up there in
11 Mogadishu in a building with helicopters shooting at us,
12 someone joining that group, someone working with that group,
13 someone assisting that group will know what it is they're
14 working against.
15 Mr. Schmidt told you that for Somalia all we have are
16 the words of terrorists who are braggarts and liars. That's
17 pretty clever. Let's walk through it.
18 First, look at what Al-Fadl told you. Al-Fadl
19 approached the government again in the summer of 1996. And
20 what does he tell you? He says, I'm in the Sudan. Abu Hafs
21 took two trips to Somalia. One was to go down to assess what
22 they could do. And he came back and he told you, in very
23 shortened forms, not as articulate as Dr. Samatar, but there's
24 a whole lot of tribes over there and they are fighting each
25 other, and Abu Hafs told him "we can't do it easily." He
5913
1 said, "It is not going to be easy," transcript 422, 423, "but
2 we have to start a little bit if it's getting bigger." He
3 said, "It is not easy to start because different tribe,
4 different groups, there's nobody control going on over there,
5 but we try to start a little bit and if go good, we go
6 bigger."
7 And then he told you after coming back from another
8 trip, Abu Hafs said that the group, al Qaeda, was responsible
9 for the attacks on the Americans. That's Al-Fadl.
10 What do you learn afterward? You learn afterward
11 that in 1997 Bin Laden makes statements to CNN that, yes, it's
12 the Arab mujahadeen from Afghanistan who are responsible for
13 what happened to Somalia. And what does Mr. Schmidt say?
14 Very cleverly: Well, you're a terrorist. You have to
15 terrorize.
16 MR. SCHMIDT: Objection, your Honor.
17 THE COURT: Overruled.
18 MR. FITZGERALD: Your recollection will control, but
19 he argued to you that Bin Laden, to terrorize, has to take
20 credit.
21 Go back, look at that same interview, and what you
22 will see is he says, I didn't do, I wasn't part of the Riyadh
23 bombing or the Khobar bombing. If he is falsely taking
24 credit, take credit for all of them.
25 Harun. Harun's report that we'll hear a lot about,
5914
1 that report, 300A-T -- and we'll call it the Harun report
2 because it is clear he wrote it, but the Harun report from the
3 El Hage computer in the El Hage house, the one that says "the
4 cell is in danger," now we hear that Harun may be a kid,
5 according to Mr. Schmidt, and he may exaggerate.
6 The basis for that is he asked Kherchtou when they
7 bring him back: Does he exaggerate? He says: Yeah. Does he
8 make up stories about himself? Kherchtou says no, but let's
9 run with it. He's a braggart. He's not a kid. This man
10 organized a bombing that killed 213 people. That's not a kid,
11 that's a murderer, someone who thinks in cold blood.
12 Now, when does Harun write this report? He writes
13 this report in the summer of 1997. There's a date, you can
14 figure it out from the date, August 13 or August 14, when he
15 has a panic attack, when he thinks that Abu Fadhl al Makkee,
16 the guy with the missing the leg, married to Bin Laden's
17 niece, is talking to the Americans. When he thinks one of
18 their group, an insider, is talking to the Americans, he
19 panics.
20 This is not written for CNN to take credit, this is
21 written for headquarters, the supreme and wise high command
22 back in Afghanistan. It's not for taking credit and it's not
23 for bragging. He is talking to Bin Laden about what Bin Laden
24 did. You don't make up a story to your boss about what your
25 boss did.
5915
1 What does he say? He says, basically, we're in
2 trouble. I'll read you part of a paragraph: "My advice to my
3 brothers, the crew of East Africa, is not to be lax with
4 security matters, and that they should know that they are
5 America's primary target now and that there's an
6 American/Kenyan/Egyptian intelligence activity in Nairobi,
7 working to identify the locations and the people who are
8 dealing with the Sheik, since America knows well that the
9 youth who work in Somalia and who are followers of the Sheik
10 are the ones who have carried out operations to hit the
11 Americans in Somalia and that the main gateway for those
12 people is Kenya. Therefore, there must be a center for them
13 in Kenya."
14 Wow. That's the insider, that's the guy in the group
15 who says, "Oh, my God, they may know the truth," and this is
16 what the truth is. Let the boss know there's a problem. Did
17 Al-Fadl get lucky and just guess that? The important point
18 is, back in 1993 al Qaeda may have worked with different
19 tribes. It's not who they were working with. The point is
20 the state of mind as to who they were working against.
21 And of course, you also heard with regard to Somalia
22 that in the fall of 2000, Kherchtou tells what he knows, and
23 he says he talked to Harun and Saleh, and one of them,
24 probably Harun, told them that they were up in Mogadishu
25 during the fight against the Americans and they were up in
5916
1 Mogadishu and they wanted to build a truck bomb to put it in
2 the U.N. compound but didn't succeed. And for that,
3 Mr. Schmidt tells you there's a timing problem, and again I
4 reference that theme: Form over substance. And let's walk
5 through the timing problem.
6 I'll give you a hint to what the answer is right now.
7 Most people, many people, often remember events by what
8 happened, not the date. You may remember that that thing
9 happened at your cousin's wedding and it turns out that you
10 think your cousin's wedding is in 1993 and it was in 1992. It
11 doesn't mean you weren't there, it doesn't mean it didn't
12 happen, it means you're not good with dates.
13 And I can give you a very good example to show how
14 Kherchtou can be off on dates, but right. Let's talk about
15 the surveillance, the surveillance team coming to Nairobi.
16 You remember Kherchtou's in Nairobi and he says that Abu
17 Mohamed al Amriki -- you know Abu Mohamed, the person whose
18 house was searched in California -- comes to Nairobi. He also
19 says Fawwaz, the guy that Wadih El Hage would later replace,
20 comes to Nairobi, and Anas al Liby. Anas al Liby, whose
21 passport photo was later found in Wadih El Hage's files, he
22 comes, too.
23 And he says when they come, they borrow his apartment
24 to do surveillance. And not being an idiot, seeing a
25 surveillance team there with cameras, he knows there's
5917
1 surveillance. Then he says later on, and he thinks he says
2 it's 1994, later on, he says, and after that, Fawwaz was
3 arrested in his apartment, the same apartment. And he knows
4 that that came afterward because if he had been arrested in
5 his apartment, no one would have ever used that location
6 again. If they are watching your apartment, you don't use
7 that to conduct surveillance. That came later.
8 And he remembered that when Fawwaz was arrested, it
9 was Ramadan because he was walking home when he learned about
10 the arrest and he's been fasting all day, he's waiting to eat,
11 and he comes home and he sees a neighbor. And then after
12 Fawwaz is arrested, Fawwaz is in jail, they pay the bribe, he
13 gets out, Fawwaz flips to London, and Wadih El Hage comes.
14 Now, he says 1994, but what matters more is the
15 sequence: Surveillance, arrest, out of jail. The arrest is
16 in Ramadan. There's a stipulation. Ramadan was February of
17 1994. So if Kherchtou is correct, Ali Mohamed and Khalid al
18 Fawwaz have to be in Nairobi at the same time, sometime prior
19 to February 1994.
20 And you can look at the exhibits, 622A, the Fawwaz
21 passport found in Wadih El Hage's files, and 362, Ali
22 Mohamed's passport, and they both arrive in Nairobi in
23 December 1993. Boom. Dead on, the same time.
24 Now, of course, what you have learned is Kherchtou
25 described this 1994 event, which is really 1993. He's got his
5918
1 years off, but it happened.
2 What did Mr. Schmidt ask Mr. Kherchtou about the
3 conversation that Kherchtou had with Harun and Saleh? Go to
4 transcript 1450 -- I'm sorry, that was the surveillance.
5 1445. I'll read the question, but you can have anything read
6 back that you would like.
7 "Q. Did Abu Mohamed el Masry go to Somalia at some period in
8 time?"
9 And remember, Saleh is Abu Mohamed el Masry.
10 "A. Yes.
11 "Q. Now, did he go -- was it -- withdrawn.
12 "When he went to Somalia, was it in 1994; isn't that
13 correct?"
14 Now, remember, he argued to you it couldn't have
15 happened because the Americans are gone by 1994. I submit to
16 you the answer he wants is 1994.
17 The question again:
18 "Q. When he went to Somalia, was it in 1994; isn't that
19 correct?
20 "A. (From Kherchtou) Abu el Masry, he went to Somalia, yes.
21 "Q. It was in 1994 that he went to Somalia; isn't that
22 correct?
23 "A. He went before that, I think, yeah."
24 So Mr. Schmidt pulled out a document and said, well,
25 here's a report, you said before it was 1994, and refreshes
5919
1 his recollection. Then on redirect we bring back and show him
2 the other part of that document that says when Harun and Saleh
3 went up there, they were fighting the Americans. So Kherchtou
4 says when they were there, the Americans were there. That's
5 the important point -- when the events took place, who was
6 there, not the calendar.
7 I submit to you if you recall the time when Kherchtou
8 was called back, he talked about how it was that when he saw
9 Harun and Saleh, they talked about what happened in Mogadishu.
10 And the last question I submit to you, you can check the
11 record, Mr. Schmidt changed it:
12 "It is your understanding that Harun and Abu Mohamed
13 el Masry went to Mogadishu after you came to Nairobi for the
14 second time; isn't that correct?"
15 And then argues to you there was a time frame
16 problem. I submit to you there is no time frame problem.
17 Kherchtou met with Saleh and Harun and they told him what
18 happened. They made it painfully plain that America was the
19 enemy in Somalia. This is Harun who is telling Kherchtou,
20 Harun, who is El Hage's deputy living in his house, using his
21 computer. I submit to you that it is damning to show that El
22 Hage knew America was the enemy a long time ago.
23 Form over substance.
24 Stingers. Airplanes. Airplane trips. You heard
25 about Stinger Missiles. No one contended that Stinger
5920
1 Missiles were actually flown from Afghanistan to the Sudan
2 into Somalia.
3 You don't know the dates now. El Hage has in his
4 notebooks the airplanes, but you can look all the way through
5 the notebooks and there's no reference to Stingers. What you
6 will see, Mr. Schmidt said Mr. El Hage writes everything down.
7 Well, he writes everything down except bad passports, Stingers
8 and trips to see Bin Laden in Afghanistan and contacts with
9 people for fake passports.
10 The point was al Ridi told you he recalled 1993.
11 He's having a conversation about the airplane. The point is
12 back before anyone got to the Sudan, Kherchtou, Al-Fadl, told
13 you back in Pakistan, before they left, they're saying America
14 is the enemy. El Hage is in the Sudan trying to get Stinger
15 Missiles from Pakistan to the Sudan, at a time at least
16 America is the enemy, if not America is in Somalia and already
17 the enemy.
18 Remember Mr. Schmidt's opening. Mr. El Hage related
19 to Bin Laden as nothing other than a businessman. Well, a
20 businessman is getting Stinger Missiles.
21 What's more important? Focus, focus on the airplane
22 trip of Abu Hafs -- classic example of why it is that you now
23 know more than some of the members or former members of al
24 Qaeda know, because the trip of Abu Hafs to Somalia pulls a
25 lot together.
5921
1 Mr. Schmidt didn't talk about that. He told you that
2 because Wadih El Hage once thought about during a phone
3 conversation taking a flight on El Al, then you should think
4 differently of him.
5 Focus on this flight. Al-Fadl tells us that Abu Hafs
6 goes down to Somalia in 1993 and takes these trips. What do
7 you learn? Essam al Ridi comes forward and says Wadih El Hage
8 has him buy the airplane, he brings the airplanes over. And
9 Mr. Schmidt said the other day, once the deal went through,
10 transcript 5642, Mr. El Hage was done with it. He got the
11 plane, he did his job as an employee of the companies, and
12 that was it.
13 But, no, al Ridi goes home to America and gets called
14 by El Hage again. He takes this special flight, this charter
15 flight down to Kenya. Remember what al Ridi told you: He
16 flew five people down to Kenya. He gets off, he stayed in a
17 hotel, and then he went someplace else, one of those propeller
18 flights
19 What did Kherchtou tell you? He says when he gets to
20 Nairobi, he was told -- and he got there in October of 1993 --
21 that the plane was used to fly Abu Hafs down to Nairobi with
22 other guys, four other guys, I believe -- you can check the
23 record -- and then they went up to Somalia. The Abu Hafs trip
24 to Somalia that Al-Fadl told you about, one of the two was
25 that Essam al Ridi flight that El Hage arranged, the jet to
5922
1 Nairobi, the propeller job, up to Somalia.
2 Mr. Schmidt asked Kherchtou the time frame on that.
3 Kherchtou was very firm. It happened before he got to Nairobi
4 in October 1993. There's no 1994 problem. El Hage, at a time
5 when America is the enemy, at a time when the evidence shows
6 you it's clear to Harun and others that they're fighting the
7 Americans in Somalia, El Hage is the one arranging the flight,
8 bringing the military commander down to Nairobi from where he
9 would then go to Somalia.
10 Perjury. Let's talk about perjury. Let's be blunt.
11 I submit to you you heard ten of the most pathetic excuses of
12 perjury ever known. Let's go through them.
13 Number one, focus for a moment on someone standing up
14 and telling you the government is form over substance, Mr. El
15 Hage has a pure heart and a clear conscience, and then what
16 are you told regarding those answers? Number one, you were
17 told he was never even asked questions about anti-American
18 activities. I'll quote transcript 5621. "And if you look in
19 the Grand Jury, he is not even questioned about anti-American
20 activity."
21 Well, you may not remember word for word of the
22 transcript, but in 1997 there are a whole lot of questions to
23 El Hage about what Bin Laden's doing. He declared war. What
24 do you know about it? Bin Laden declaring war on America is
25 about anti-American activity.
5923
1 1998, first question right out of the box: Who
2 bombed our embassies? The last questions when he gave those
3 ridiculous answers that "it looks like my writing, it looks
4 like my name, but it's not my writing, it's not my name."
5 This guy, the terrorist, spends his days
6 counterfeiting things, writing letters to and from him, he's
7 told flat-out, this is no joke, 2 -- at the time was a higher
8 number -- over 200 people were believed to be dead and this
9 was about a bombing of the embassies. The Grand Jury was
10 about anti-American activity because it's a crime.
11 We've been accused of waving the flag in this case.
12 You know who brought America to this courtroom? It came in
13 twice. The defendants plotted to kill and murder United
14 States nationals. That's what they did. We have to prove it.
15 If we didn't bring America into this courtroom, we wouldn't
16 need a burden of proof, which we welcome and we have met. And
17 Mr. El Hage in his opening said he is someone who shared in
18 this tragedy as a fellow American citizen, so we do have to
19 talk about America.
20 The second excuse -- by the way, if he wasn't asked
21 more about anti-American activity, I submit to you, how could
22 he be? If he doesn't say, he won't admit Abu Ubaidah ever
23 came to Kenya, much less drowned at the lake where he was
24 investigating him, how can you follow up? How could he be
25 asked by the Grand Jury anymore: Well, that person you don't
5924
1 admit knowing that you are lying about, could you tell us what
2 kind of anti-American activities they would be engaged in if
3 you were to tell us the truth?
4 Second excuse. He was tired, jet-lagged and
5 confused. Ironic, because during the conspiracy part of the
6 case he was busy as a beaver flying all over the world, the
7 international businessman, getting it all done. Then, the
8 Grand Jury, jet lag hits.
9 I submit to you when you look at the questions, no
10 one asked him to do high math, he wasn't being asked to do
11 nuclear physics, it wasn't a complicated test, he was being
12 asked a complicated question as, "Have you seen Usama Bin
13 Laden?" It's September 24, 1997. He saw him the month
14 before.
15 I submit to you, with all that was going on in the
16 Harun report, all that was going on in the world about Usama
17 Bin Laden, if you saw Usama Bin Laden and you took a secret
18 trip overseas to Pakistan or Afghanistan to see Usama Bin
19 Laden, you would remember it. You don't forget it because of
20 jet lag.
21 By the way, not a word, not a word in that
22 transcript, ever, "I'm confused," never "I'm tired," never
23 "have a break." You can look at the dates, the times. He's
24 in there for like four hours, 10:30, stops at 4:00. He
25 actually corrects, if you read the transcript, he corrects the
5925
1 questioner once. The questioner says, Exhibit 64. No,
2 Exhibit 54. It's not jet lag, it's perjury.
3 The third argument: They didn't show him his
4 documents, as Mr. Schmidt said at 5652. The government has
5 his documents, didn't show it to him, and now asks you to find
6 him guilty of perjury. Well, two things about that: Number
7 one, you don't need a document, you don't need a notebook to
8 figure out whether you have just went and visited Usama Bin
9 Laden. It's not a trick question. It's not a detail. You
10 went and saw him or you didn't.
11 But of all people to make that claim. His files, he
12 was told, you were brought back to the Grand Jury and said
13 your files have been found. They show you are lying. Let's
14 talk about these documents. And he is shown the documents and
15 he says, I didn't write it, that's not my letter. That looks
16 like my name. That's not my handwriting. It looks like my
17 handwriting. He was shown his documents and he lied.
18 The photographs. Mr. Schmidt said, form over
19 substance, it's unfair. How does the government charge that
20 man, the American citizen, with three Counts of perjury for
21 not recognizing photographs. And there are people taking that
22 witness stand, witnesses who don't recognize people. Okay,
23 sounds nice. Let's look at the facts.
24 He was charged with three counts of perjury that
25 involve photographs. Were they obscure photographs? Was he
5926
1 given 100 photographs? Go through them all. Oh, you missed
2 one. Perjury. No. No. No. The three photographs were Abu
3 Ubaidah al Banshiri, Ali Mohamed, the Abu Mohamed fellow, and
4 Mohamed Sadeek Odeh. If you look at the record, each person
5 was talked about at least twice with him and he lied. And not
6 only that, for each of them he was given the answer. He was
7 given a test, not an open book test, an open book test with
8 the answer filled in, but he denied it.
9 Let's walk through it. Abu Ubaidah, 1997, he says,
10 hey, I don't know the guy. I went to look for Adel Habib,
11 some Dutch businessman who drowned. He's brought back and he
12 is shown the picture. And you look at the transcript: Isn't
13 that a picture of Abu Ubaidah? No. The loan document says
14 Jalal, isn't that Jalal? No. He's asked in 1997, he's asked
15 in 1998, he's asked by Miranda. He just lies and lies and
16 lies, and he's charged.
17 Ali Mohamed, he says he doesn't recognize him in
18 1997. I show the picture in 1998. And again, let's look at
19 the picture. Is this a guy from California? Is his name Ali
20 Mohamed? Here's a letter from his work. Sunnyvale,
21 California. Isn't that Ali Mohamed? Nope. That's not him.
22 I don't know him.
23 Mohamed Sadeek Odeh, Mohamed Sadeek Odeh who is on
24 the telephone with him as Marwan. Now, Mr. Schmidt would like
25 you to believe that, gee, that's pathetic. We just put
5927
1 Kherchtou up there. That's the only proof that's Marwan on
2 the phone.
3 Well, you heard that there are tapes in evidence of
4 Odeh talking to his wife, the tape recorded letters, okay. I
5 submit to you El Hage has no burden of proof, but if he thinks
6 Kherchtou got up and lied on the witness stand and said that's
7 Marwan, but it's not, instead of bringing a handwriting
8 expert, why didn't you have someone take that tape, listen to
9 the tape with his wife, listen to his tape with El Hage and
10 compare the voices?
11 Not only that, but Kherchtou identified a different
12 transcript where Marwan, Odeh, spoke to Harun. Compare that
13 voice, and you know what? During this conversation Harun says
14 to Odeh: How's Yasr? And you have learned that Odeh has a
15 son named Yasr. It's Marwan. It's not form over substance.
16 It's Marwan. It's Odeh. And El Hage lied about that.
17 Odeh is the person that when El Hage comes back with
18 a new policy from Afghanistan, Marwan, Odeh, goes north of
19 Somalia. He's shown the pictures, he's shown the pictures by
20 Agent Miranda in Texas, and he lies and says he doesn't know
21 them, he just knows them from T.V. He's shown the picture in
22 the Grand Jury and asked, "Isn't that Mohamed Odeh?" And
23 Mr. Schmidt argued to you he was shown photos we now know are
24 Mohamed Odeh. I submit to you, he was shown the photos, he
25 was given the answer, he just flat-out lied.
5928
1 Fifth argument, fifth excuse: He told them
2 everything they needed to know about Fawwaz, Harun and Abu
3 Ubaidah. We'll deal with that real quick. Sure, he told the
4 Grand Jury that Fawwaz is in London as a spokesperson for Bin
5 Laden. Well, first of all, he thinks that al Tayyib is
6 talking at the time.
7 Second, we showed you a document, there's a public
8 announcement in 1994 signed by Bin Laden that says Fawwaz is
9 appointed as the head of this committee in London. He told
10 you something that basically you could find out from the phone
11 book.
12 What did he leave out? By the way, Fawwaz used to be
13 head of a military command camp back at Afghanistan, one at
14 which Odeh trained. By the way, Fawwaz used to be in Nairobi.
15 He was a cell leader of al Qaeda. By the way, Fawwaz got in
16 trouble down there. Bribed his way out of jail. By the way,
17 Fawwaz was replaced by me, Wadih El Hage, in Kenya.
18 How about Harun? Oh, sure, he said he knew Harun.
19 He just never knew him to have anything to do with Bin Laden.
20 Is that everything the Grand Jury needed to know about Harun?
21 About Abu Ubaidah, he said someone drowned, a Dutch
22 businessman, Adel Habib, not a military commander of a
23 terrorist group.
24 The sixth argument, the sixth excuse: The questions
25 are not important since the government knew it all already. I
5929
1 submit to you -- and he says to you, look, they had the
2 wiretap, they had his notebooks. Well, is the wiretap
3 self-evident? You heard that Kherchtou identified voices in
4 the wiretap. You saw some unidentified voices in the wiretap.
5 Did the government, did the Grand Jury know
6 everything at that time? And what about his notebooks? Well,
7 the Grand Jury cared only about habiscus and sesame seeds.
8 They knew a lot. There's nothing in there about Stingers,
9 there's nothing in there about fake passports, there's nothing
10 in there about him going to see Bin Laden.
11 The government, even if the Grand Jury had access to
12 what the government had, they had his documents, they didn't
13 have what was in his mind and what the Grand Jury has a right
14 to when people are put under oath -- your truthful knowledge,
15 your truthful recollection of what happened.
16 It was argued that it just wasn't fair the way the
17 questions were asked in the Grand Jury. I'll give you one
18 example. It's in a count. It's on the document. "Have you
19 seen Usama Bin Laden anyplace in the world in 1995, '96 or
20 '97?" What's so hard about that?
21 We'll talk about the Abu Ubaidah letter. Remember
22 the letter that somehow the ostrich fits in? He's on an
23 ostrich. He wrote a letter to his brother-in-law, July 14th.
24 There's a stipulation he wrote it. He says he didn't write
25 it. So, therefore, he's not lying since he must be mistaken
5930
1 since he really did write the letter, and now we agreed that
2 the letter he said he didn't write he wrote.
3 He must be confused because it's not al Qaeda. Well,
4 fine. It's a letter to his brother-in-law. But you know
5 what? He had already been told his files had been found. He
6 had already been told in the Grand Jury that his files showed
7 he was lying, and he already had been shown documents and
8 said, "I didn't write them." He can't then say, "Oh, but that
9 one, that's mine. That writing really is mine. There where
10 it says Wadih, that's Wadih," and then take the next document
11 and say otherwise.
12 Let me just cut the perjury discussion short with
13 this: Mr. Karas quoted to you Mark Twain and Abraham Lincoln.
14 I'll quote to you someone different. I'll quote to you
15 Mr. Schmidt.
16 In discussing other witnesses, he said to you, at
17 transcript 5683: "You can tell when you have bad guys who
18 just can't stop lying, who make things up." I submit to you,
19 you keep that in mind when you look at those perjury counts,
20 and I also submit to you that you keep in mind the
21 significance of the perjury counts for two reasons:
22 Mr. Schmidt told you that Mr. El Hage made a bayat to
23 America. Mr. Schmidt told you that to blame him for anything
24 that happened from the government not figuring anything out
25 was unAmerican. He said it's unfair, inaccurate, unAmerican.
5931
1 He implied that this is about a lack of patriotism;
2 you can't charge someone with a lack of patriotism. I tell
3 you right now, no one is on trial for a lack of patriotism.
4 That's not a crime. Americans have gone to war to allow
5 people to express a lack of patriotism.
6 El Hage is on trial for perjury because it's a crime.
7 Like everybody else, whether he likes America or not, whether
8 he's a citizen or not, you are in the Grand Jury, you're in
9 this courthouse, you raise your hand, you take an oath and you
10 tell the truth. I'll tell you something else: It goes beyond
11 a crime against America.
12 MR. SCHMIDT: Objection, your Honor.
13 THE COURT: Overruled. Argument.
14 MR. FITZGERALD: Look at 1998. When he was in that
15 Grand Jury, two buildings had been bombed. In the first one,
16 213 people lost their lives, thousands were injured. In the
17 other building, 11 people lost their lives. And he's brought
18 before the Grand Jury, he takes an oath and he shows nothing
19 but contempt for that oath, for that bayat for whatever
20 country, contempt for human decency.
21 If you lied in 1997 and you realized that people that
22 you were lying for, lying to protect had carried out such an
23 atrocious deed, if you have a pure heart, if you have a clear
24 conscience, speak the truth. Don't make up a sad, pathetic
25 excuse that you didn't write those documents, you don't know
5932
1 anything.
2 I submit to you it shows something. It shows that
3 what El Hage was about was lying to protect the enterprise,
4 the group he knew back in 1993 was fighting America, the group
5 he knew all along was fighting America, the group he was
6 playing a game for. And he showed it in '97, and if there's
7 any doubt in your mind, he showed it in 1998. It may have
8 been brazen, it may have been arrogant, it was perjury.
9 Let me talk to you briefly about the notion that it
10 was the great American coming home, that's why he came back to
11 America, because he loved the place.
12 Well, I submit to you if that was the story, then you
13 wouldn't have seen that perjury in the Grand Jury, you
14 wouldn't have seen that violation of an oath about an awful,
15 awful crime.
16 Think about this: It's 1994 in Nairobi and Khalid al
17 Fawwaz gets arrested, gets himself out of jail, and he runs
18 and hides in plain sight off to London, opens a press office,
19 hangs out there, takes the heat away. Fawwaz is gone.
20 Who else comes to Nairobi? Abu Mohamed al Amriki,
21 the surveillance guy, Abu Mohamed. And what did you learn
22 from Kherchtou? Kherchtou says he gets a call on El Hage's
23 cell phone saying there's a problem with American security,
24 American intelligence. He has to answer questions or he has
25 to talk to.
5933
1 By the way, you can check the phone records, and Ali
2 Mohamed's phone records go right to El Hage's cell phone,
3 corroboration Kherchtou. What did he do? You saw he went
4 back to America, never to be heard from again in Kenya, no
5 contact between him and the government.
6 Remember, you heard all about Mr. El Hage told the
7 government where he was traveling. There were phone calls
8 from Ali Mohamed to the government, and you saw in 1998 he was
9 still here lying in the Grand Jury.
10 I submit to you when the heat was on Fawwaz, he ran
11 and hid in plain sight in London. The heat was on Abu
12 Mohamed, go to California, take the heat away from the group.
13 In the summer of '97, that's what Wadih El Hage did.
14 Everyone's onto me, they're looking at me, I'll just go to
15 Texas, I'll lay low and take the heat off. That wasn't love,
16 that was strategy.
17 Let's talk about conspiracy. This case is not just
18 about perjury, but what you ought to understand, it's not like
19 it's conspiracy over here and perjury over there and never do
20 they meet, because I submit to you part of what El Hage did
21 for the conspiracy was his perjury. Part of it was to block
22 the American government from finding out what it could.
23 Remember what the standard will be when Judge Sand
24 explains it to you. You will learn that you don't have to all
25 sit around a room, one big giant table, raise your hand and
5934
1 say, I solemnly swear that now I'm going to kill Americans, in
2 violation of Title 18, United States Code, Section 1117. It's
3 what you understood, what you mean to do, and your actions
4 speak louder than words.
5 Mr. Schmidt told you about a conspirator versus a
6 facilitator. He said they can't just prove he's a
7 facilitator, they have to prove he's a conspirator. I submit
8 to you, take the instruction from Judge Sand on the law. You
9 may well learn that a person can be part of a conspiracy if
10 they knowingly and intentionally want to help that conspiracy
11 to succeed, if their role is a facilitator.
12 Kherchtou explained it to you. You don't have to
13 shoot the gun if you are helping someone else that you know is
14 going to do it.
15 Fake passports. We heard the argument, yeah, okay,
16 maybe some fake passports, that's okay, that's a third world
17 thing for dissidents. Only you suspicious Americans think
18 that someone getting fake passports is something else.
19 Well, what are dissidents to a terrorist group?
20 There's an introduction in one of these documents, Usama Bin
21 Laden is a dissident, a dissident who blows up embassies.
22 Omar Abdel Rahman is a dissident. And what are we finding
23 out? Mr. Schmidt tells you some of these persons have
24 Egyptian names. He said, "In fact, many of the people," from
25 5631, "who espouse retaliation have 'el Masry' at the end of
5935
1 their name, meaning they are Egyptian. And what does
2 retaliation mean for the people they are talking about in this
3 case with the name el Masry? Violence." 5632, "This is the
4 code they use at that time to protect themselves against the
5 Egyptians, the Saudis, the Kenyans if you are in Kenya, and
6 perhaps the Americans who turn over dissidents to Saudis and
7 Egyptians."
8 And you heard that the group believed that America
9 was responsible for turning people over to different
10 countries. That was offered for state of mind. You haven't
11 heard whether it's true or false or what these people were
12 arrested for, if they were, but to the extent those groups are
13 angry at America and want to retaliate for violence and you
14 provide them passports, you are giving passports to people who
15 are angry at America and want to retaliate, that's not
16 irrelevant. I submit to you that's in the heart of being part
17 of a conspiracy to help others, part of a conspiracy to kill
18 Americans where you are helping others who want to do it.
19 That's true in the United States, that's true in
20 France, that's true in the third world. We're judging
21 everyone by the same standard, and I tell you his perjury was
22 committed right here in this courthouse.
23 Mr. Schmidt argues to you that not a single piece of
24 evidence points to a conspiracy to kill nationals, and you
25 will see that as a theme that many of the defendants wants to
5936
1 argue to you about single pieces. You put a puzzle together
2 over the course of a trial, a picture emerges. Knock the
3 puzzle apart, take up each piece and say this doesn't do it,
4 this doesn't do it, this doesn't do it, but you have to take
5 it all together.
6 But there are a lot of pieces. What are some of the
7 pieces? Arranging a plane trip for the military commander to
8 go to Somalia, Abu Hafs; taking over the Kenya cell from al
9 Fawwaz. And remember, Mr. Schmidt pointed out, well, gee,
10 he's not the new leader because the wiretap call shows that
11 Mustafa Fadhil took over after the death of Abu Ubaidah.
12 I submit to you Kherchtou told you Ubaidah was the
13 boss, but he also went to Fawwaz. Ubaidah, the military guy.
14 Fawwaz is a military guy. Ubaidah leaves, Mustafa Fadhil
15 replaces him. Fawwaz leaves, Wadih El Hage replaces him.
16 We argue to you that he was a leader. Not the only
17 leader. I submit to you that taking over Fawwaz's duties,
18 taking a trip back to Bin Laden in February of 1997, bringing
19 back a new policy which he delivered to Mustafa Fadhil to
20 bring down to others in Mombasa, including Odeh, passing coded
21 messages, helping people with fake passports, passing out the
22 Jihad phone number, think about that. I mean, it sounds funny
23 afterwards sometimes when you think about the Dr. Atef clinic,
24 but it's not funny. It sounds like a poor code once you
25 figure it out, but that's what codes are like.
5937
1 If you were listening to that call, didn't it sound
2 like Wadih is telling Harun he had to go to the doctor? But
3 he's giving Harun, the man who was in Mogadishu with Saleh,
4 the man who would blow up the embassies, a man involved in
5 military activities, the phone to hook up in Kandahar with Bin
6 Laden.
7 That's important. That may be facilitating, but if
8 you are doing that so Bin Laden and Harun can get together to
9 fight the enemy, America, that's conspiring.
10 I submit to you there's great proof in this case from
11 the call between Harun and Abu Ubaidah al Banshiri what they
12 believe Abu Fadhl is the corroboration, there is great
13 corroboration from the Harun report and there's great proof
14 that Wadih El Hage wanted this conspiracy to succeed by lying
15 repeatedly and repeatedly on two different occasions in the
16 Grand Jury.
17 I'm going to try and wrap this up quickly on El Hage.
18 Let me talk about Harun, the kid. Let me just say to you, you
19 look at that document and that makes clear not that Harun in
20 the security report just found out in the summer of 1997 that
21 America was the enemy. No, he just found out that his
22 terrorist boss got on T.V. and told the Western world on CNN,
23 he's the one saying they know we're the enemy, we attacked
24 them in Somalia.
25 This is not what Mr. Schmidt said proved that
5938
1 everyone in Nairobi figured out America was the enemy in 1997.
2 It's Harun. He figured that out in 1993. He's in Mogadishu
3 with Saleh. He's saying, my God, if they know that, they're
4 coming after us. What he's writing is that they declared war
5 in the summer of 1997. He was on T.V. He's telling the
6 world. It's like the mob boss getting on T.V. and saying
7 we've got a mafia family. Sure, they react. It's not like
8 the people in the mob saying, oh, my God, we're part of a
9 criminal enterprise.
10 The wiretap, I submit to you he contends there's
11 nothing on it. Look at those calls. There's plenty. But
12 bear in mind that the whole time in the wiretap El Hage
13 thought he was being tapped. You heard his wife talk in code
14 about green papers. You heard them talk in code about the
15 Dr. Atef call.
16 In the Harun report, his wife is telling Harun, I
17 think the T.V. is bugged, there's a lady across the street,
18 she's American, something funny, there are funny sounds from
19 the phone. It's remarkable what you did get in either of what
20 those calls are.
21 Notice how when he got the Taliban report, the report
22 written by Abu Hafs takes off the name at the bottom before he
23 faxes it out. That's someone who is thinking, thinking I
24 don't want them to know what I'm doing for these dissidents.
25 Okay, let me skip over certain things and just pick
5939
1 out two more points on El Hage and you'll be done with me on
2 that topic. Mr. Schmidt told you form over substance. That's
3 1600A-T, the declaration of Jihad, a proclamation against
4 Saudi Arabia. Proclamation against Saudi Arabia.
5 Let me be so bold as to read the title of 1600A-T:
6 "Declaration of Holy War Against the Americans Who Are
7 Occupying the Lands of the Two Holy Places." That's not a
8 proclamation against Saudi Arabia, that's written to kill the
9 Americans.
10 It goes on. It goes on to talk to Defense Secretary
11 Perry and President Clinton and talks about all the mocking of
12 what it is they believe and says, "The American enemy. All
13 effort must be directed at this enemy. Kill it, fight it,
14 destroy it, break it down, plot against it, ambush it and, God
15 the almighty willing, until it is gone."
16 The problem, the problem in this case for people in
17 al Qaeda in August of 1996 when this goes public is it exposes
18 what they have been doing privately. If that's not a
19 proclamation against Saudi Arabia and al Qaeda is what it
20 is -- a group fighting Americans -- then you can't pretend
21 that Harun and everyone else is learning in 1997 what it's all
22 about.
23 Lastly, you heard that Mr. El Hage was open and
24 honest with Agent Miranda, telling him his foreign policy
25 views and that sums up the case. Great, because what he told
5940
1 him was he didn't know any Bin Laden people in Kenya, he
2 didn't know any Bin Laden people in America, and you know
3 what, if he wanted to contact Bin Laden, he had to get on a
4 plane, fly to Pakistan, go to the embassy and go ask to talk
5 to the Taliban, because he certainly didn't have a phone
6 number.
7 I submit to you, look in the end at Wadih El Hage,
8 and what you see is someone who knew, who knew how to work at
9 it, who knew how to keep notebooks of just the right things,
10 who knew what was going on, was at the heart of it, an insider
11 so trusted that Abu Hafs, the military commander, would let
12 him handle his documents and not the guy he would trust with
13 surveilling the embassy.
14 I submit to you at this point in time, after you have
15 seen the evidence, as far as El Hage is concerned, the mask
16 has been stripped away. He is what he did. He worked for a
17 group that he knew was fighting against America. He wanted
18 them to succeed and he helped every way that he could, whether
19 it be fake passports, coded messages, taking trips to see the
20 boss in the cave in Afghanistan, or just coming into this
21 Grand Jury in this building, raising his hand and lying
22 through his teeth.
23 We'll pick up with the oath after the break. Thanks.
24 (Jury not present)
25 MR. WILFORD: Your Honor, we would like to, on behalf
5941
1 of Mr. Odeh, file an objection on the part of Mr. Fitzgerald's
2 argument. Mr. Fitzgerald seemed to indicate to the jury that
3 it was appropriate for the jury to use the fact that Kherchtou
4 pled guilty.
5 THE COURT: The fact that perjury was in furtherance
6 of the conspiracy?
7 MR. WILFORD: Kherchtou pled, that Kherchtou pled
8 guilty.
9 THE COURT: Pled guilty.
10 MR. WILFORD: As a basis for determining the guilt of
11 other people seated at this table on trial. He made the
12 argument --
13 THE COURT: Could you direct me more specifically to
14 that?
15 MR. WILFORD: Yes, your Honor. It was language to
16 the effect that Kherchtou explained it best, if you know about
17 something happening, you're guilty of conspiracy, something
18 along those lines, and he said Kherchtou explained it best by
19 his plea of guilty. It was an attempt to get the jury to
20 infer from the fact that Kherchtou pled guilty, because he
21 knew of something, that people seated at this table may have
22 known of something, were also guilty.
23 THE COURT: Mr. Fitzgerald, did you say that?
24 MR. FITZGERALD: No.
25 THE COURT: I have no recollection of that being
5942
1 said. I don't have any recollection of any argument being
2 made that from the plea of guilty, you may infer anything with
3 respect to any other defendant.
4 MR. WILFORD: It's not necessarily that Mr.
5 Fitzgerald used those words from the plea, but the tenor of
6 the argument.
7 THE COURT: Tomorrow morning after you get the
8 transcript, you direct my attention to that and if there was
9 an erroneous statement, I will tell the jury.
10 MR. WILFORD: Thank you.
11 THE COURT: While we're here, the note from an
12 alternate reads: "Will you please tell us alternates what our
13 disposition is during deliberations? Will we be paid our
14 standby paid status while on call or will we be attending here
15 separate from the deliberators?"
16 My understanding is that after the jury is charged
17 and retires to deliberate, the alternates will be put on hold;
18 that they will not participate on the deliberations; they will
19 be on telephone call; if and when we reach a later stage in
20 the proceedings, they will rejoin the jury. Is that
21 everybody's understanding?
22 MR. RUHNKE: I'm not sure about the latter part.
23 MR. COHN: I'm not sure either.
24 MR. RUHNKE: Also at issue, do you want jurors here
25 if the jury has questions and you are instructing them, the
5943
1 alternates?
2 THE COURT: Do I want what?
3 MR. RUHNKE: For example, the jury asks a question,
4 your Honor will give a clarification, do you want alternates
5 here listening to it?
6 THE COURT: No alternates here. They would like that
7 because that would mean they would get paid. Why would the
8 alternates need any clarification with respect to a question
9 during deliberations?
10 MR. RUHNKE: In the event they have to be
11 substituting a juror.
12 MR. COHN: They will do it over my objection.
13 THE COURT: Well, first of all, if a juror becomes
14 ill during deliberations, the rules now provide that an
15 11-person jury is sufficient. There's a time when you would
16 bring in an alternate and start over again. I think that is
17 no longer the process.
18 MR. RUHNKE: Your Honor, just a caveat on that: I
19 don't know of any cases where an 11-person jury has returned a
20 capital murder verdict.
21 THE COURT: There are a lot of things we don't know
22 about capital cases.
23 MR. RUHNKE: Silence should not necessarily be
24 acquiescence in that observation.
25 THE COURT: No, no, but I'm interested in the fact
5944
1 that you don't think that the alternates return for the
2 penalty phase. As I see the penalty phase, it can go on for
3 quite a substantial period of time and the whole theory of the
4 procedures set out is to have the jury that hears the
5 deliberations pass on the penalty phase, if we get to it.
6 MR. RUHNKE: It has happened before. It has happened
7 that an alternate juror has had to be substituted into the
8 penalty phase. It's not happened in this circuit. Arguments
9 have been made, I think there's one Seventh Circuit case, I'm
10 not sure which case it is, that a juror that did not
11 participate in the guilt phase proceeding should not be
12 allowed to participate in the penalty phase, whether we come
13 to that bridge or not, but it's hardly, it's hardly black
14 letter law that that's what's going to occur.
15 THE COURT: I'm going to ask the parties to submit a
16 brief on that. It can be a letter brief. But it seems to me
17 that if there is a possibility that I will complete charging
18 the jury tomorrow, depending on when we start, we have to know
19 the answer.
20 MR. RUHNKE: Nobody is objecting to having the
21 alternates stay around during the first stage of the
22 proceeding. I don't know if you have -- I don't hear an
23 objection to that.
24 THE COURT: What is the advantage to that? What is
25 the advantage to having the alternates sit in the courtroom?
5945
1 MR. RUHNKE: When I say "stay around," I mean not
2 discharged, remain on call.
3 THE COURT: They will be on telephone call. They
4 will call in.
5 All right. Let's all think about that and I will not
6 respond to the alternates' question today. We'll take a
7 five-minute recess.
8 (Recess)
9 THE COURT: There's something of while we're
10 researching the question of the alternate jurors and the jury
11 in the penalty phase, the jury has to sign a statement. We
12 have an anonymous jury, so we have to work out the mechanics.
13 And I think what I would propose is the jurors sign a
14 statement giving their juror numbers and then there be one
15 other attestation which we do with 12 copies, each one signs
16 one, and then seal it.
17 MR. COHN: Your Honor, I would just think if we
18 consider having them sign it, put their number next to their
19 signature, seal the original and give us a redacted version.
20 I don't know why that would make me happier at first blush.
21 THE COURT: Think about that. They don't, I think,
22 know each other's name. I don't know if they all sign -- it's
23 a mechanic, but we should be prepared and explore it. We may
24 have lots of time. The jury is deliberating in the first
25 phase, but one never knows.
5946
1 Mr. Ruhnke, would you check with the think tank on
2 the death penalty and see whether there is any actual
3 experience with respect to alternates?
4 MR. RUHNKE: Yes, your Honor.
5 THE COURT: I appreciate that.
6 (Jury present)
7 THE COURT: Mr. Fitzgerald, you may continue.
8 MR. FITZGERALD: Thank you.
9 Now let's talk about the defendant Mohamed Odeh and
10 again another example of how it is, if you take a puzzle, you
11 knock out all the pieces and the picture is gone, each little
12 piece may not look like it's enough, but I tell you in the
13 end, when we review the evidence, it is clear that Mohamed
14 Odeh participated in the charged conspiracies and it is clear
15 that he participated in the bombing.
16 Now, Mr. Wilford and Mr. Ricco indicated that the
17 government waved the flag, "Waved the flag, we're Americans.
18 He's not. Convict him." If there's any doubt in your mind,
19 the only thing we'll wave in this courtroom is the evidence.
20 If we meet the burden, as I submit we have, and we'll show
21 you, convict; and if we don't, acquit. We don't want the bar
22 of justice to be any different in this case. In fact, it's
23 more important in this case that we follow justice.
24 I'll talk to you about justice in the end.
25 Mr. Ricco and Mr. Wilford made comments that
5947
1 sometimes the government shaded the truth or twisted a word or
2 didn't tell you things because it didn't fit our theory or
3 twisted the facts. I submit to you, we'll review how it was
4 that everyone dealt with the facts as we go through this.
5 I also submit to you that the Odeh defense, in part,
6 set up what's called a strawman, like a scarecrow out there,
7 like a fake argument sometimes, things we didn't prove, that
8 we never tried to prove, we never claimed to prove.
9 Did anyone ever tell you we would prove Odeh picked
10 the time of the bombing or bought the truck? No. And you
11 know what? We didn't prove we did. We didn't prove Odeh
12 bought the truck. We didn't prove Abu Hafs bought the truck.
13 We didn't prove that a lot of people bought the truck because
14 we proved somebody else did.
15 But what we have to do is focus on the evidence and
16 how it fits together. Yesterday Mr. Ricco did two
17 comparisons. He compared Odeh at the beginning to both
18 Sikander, the government witness, and to Kherchtou. And let's
19 talk about those two comparisons because they illustrate an
20 important point.
21 What did we hear about Sikander? We heard that he
22 delivered money for al Qaeda secretly. That's not quite
23 right. Sikander told you he received money from Wadih El Hage
24 and Harun and others from the person who was his
25 brother-in-law, and he told you he didn't know what al Qaeda
5948
1 was.
2 You were told that Sikander cleaned the house to get
3 rid of PETN. I submit to you the evidence shows that Sikander
4 didn't know what the house was being used for beforehand. So
5 why don't we do something, why don't we compare what Odeh did
6 with what Sikander did, beginning to end.
7 Odeh, a trained member, a sworn member of al Qaeda
8 since 1992, he went to the camps. He was trained in military.
9 He was trained in explosives. He received advanced training.
10 He received religious training. He made a bayat and he swore
11 an oath.
12 Sikander does not know what al Qaeda was, never went
13 anywhere near Afghanistan. Odeh, involved with al Qaeda in
14 Somalia. Sikander, never been to Somalia. Odeh knew Abu
15 Ubaidah as a military commander. Sikander knew him as a
16 brother-in-law in that secret life Ubaidah had with other
17 family which you know about.
18
19 (Continued on next page)
20
21
22
23
24
25
5949
1 MR. FITZGERALD: (Continuing) Sikander, he rented 43
2 Runda Estates in his real name. Odeh checked into the Hilltop
3 Hotel under a fake name. Remember, Odeh is a man who can
4 handle the truth? Well, in August of 1998, he wasn't Odeh.
5 He was Abu Basit Awad, a merchant from Yemen. He checked into
6 the Hilltop Hotel. A person with a Kenyan identity card goes
7 to the hotel. Think about that. Whatever he knows, he knows
8 he doesn't want his real name on that register.
9 Odeh went to the Hilltop Hotel and saw Abdel Rahman,
10 a bomb trainer from Afghanistan. What do you think he thought
11 when he saw a bomb trainer, someone who trains people to make
12 bombs in a hotel he checked into under a false name? He told
13 Mustafa that an operation is coming, a big operation.
14 And something else that wasn't discussed yesterday.
15 Odeh learned that the Hilltop Hotel in August 1998, that the
16 people back in Kandihar, and you know who that is, Bin Laden
17 and the rest, have relocated. Why? Because they expect the
18 United States Navy to retaliate with planes and missiles. As
19 a thinking man, as any person, when the US Navy wants to
20 retaliate, something big is happening and it's not against
21 Eritrea, it's not against Somalia, it's not against anything
22 but it's against America. Sikander, he didn't change his
23 appearance during the time in August 1998. Odeh shaved.
24 Sikander, he stayed in Nairobi while Odeh hightailed it out of
25 town, getting out of town the night before the bombing.
5950
1 You know what, I am going to use very few exhibits,
2 try to use very few exhibits. But the flight. The flight
3 becomes important sometimes and one exhibit I would like to
4 draw your attention to, if we may have 355, page 2 on the
5 screen -- 355 page 1 first. Sorry. It is something from that
6 fellow Ali Mohamed, from his house in California, the trainer,
7 the guy who did surveillance, the guy you heard a fair amount
8 about. Look at the top. The idea of working. He says there
9 were four main groups, HQ -- presumably headquarters. It's
10 got a word next to it, foreign language, maybe it's Arabic.
11 Then INF, information, with a word with the number 3 in the
12 middle. Prepare. EXCU, Tanfeez.
13 The reason I am boring you with those funny sounding
14 words is to make sure you understand what is at the bottom of
15 page 2. Under the title 4, the execution group, how to carry
16 out an operation. Look at number 8, if we could blow up
17 number 8, enlarge No. 8. 24 hours before the Tanfeez, all the
18 following three groups will evacuate Qota 3. If you look on
19 the first page it appears to be translated as sector. 24
20 hours before the operation, basically these people get out of
21 town: Al Qeada, al Mal3mut, al Tageez. Headquarters,
22 information and preparation.
23 In Odeh's own statement, Government's Exhibit 6, he
24 talks about how there were two groups, the preparation group
25 and the execution group. The preparation group were the
5951
1 people who gathered the information, who looked at the target
2 to see what it was made of, to figure out what would be used
3 to attack it. That is coming from a man who himself is an
4 architect and engineer. I submit to you when we talk about
5 the sketches, one of the things he is used for, his expertise
6 isn't in advising how to build a bomb, though he can do that
7 and he can help, but also how to place the bomb against a
8 building to do the damage. We will talk about that. But
9 again, 24 hours ahead of time, Odeh is getting out of town.
10 Organizational, that's the way they work. Twenty-four hours
11 before, people split. And of course Odeh had that sketch in
12 his house, which we will talk about, and Odeh and Sikander
13 didn't.
14 How about Kherchtou? Mr. Ricco told you yesterday in
15 regard to Mr. Kherchtou, and I will quote, page 52 -- sorry to
16 welcome him back with a quote. Kherchtou said that he was in
17 Kenya in August of 1998, that he went out looking for his
18 friend Harun, and he said he ultimately found Harun, that they
19 spent some time together. These were within days of the
20 bombing. He said Harun has some guys around him that he never
21 saw before. That's what his testimony said. I didn't know
22 these guys that were around Harun. So it wasn't Saleh, must
23 have been some other guys. Wasn't Mohamed Odeh, the bomb
24 consultant, because he knows Mohamed Odeh. He knows him as
25 Marwan, the guy he believes was in Somalia. You can point out
5952
1 over there and say I saw Mohamed Odeh running around with
2 Saleh a couple of days before the bombing.
3 The point is, if Kherchtou sees Harun with other
4 people and knows the defendant Odeh and didn't recognize him,
5 then Odeh is not with Harun. The problem with that is, it
6 didn't happen. The clear testimony is that Kherchtou came to
7 Nairobi twice: June of 1998 and August of 1998. When he came
8 in June he was outside a mosque and he ran into Ahmed Tawhil,
9 the tall one, and Harun. Harun said he was busy for a little
10 while, and then Harun took him in a truck and drove him
11 around, and they went to the airport.
12 Then, when Kherchtou came back, it is August 1998,
13 and it is within days of the bombing. And what Kherchtou told
14 you is, he went to look for Tawhil before the bombing and
15 couldn't find him. He left him a note. Then he ran into
16 Sikander and said can you get me in touch with Harun?
17 Sikander picked up the phone, called Harun's house, and the
18 wife said he's not home, he's taking his family to the
19 airport. Later he's told don't bring that guy by, we don't
20 want him around. Harun never saw Kherchtou in the days before
21 the bombing. Harun wouldn't see Kherchtou in the days before
22 the bombing.
23 Two points. If Kherchtou didn't see Harun, he didn't
24 see who Harun was with, so he can't say one way or the other.
25 Secondly, Harun did meet with Odeh. Odeh told you that,
5953
1 Government's Exhibit 6. Remember he saw him at the hotel.
2 Harun and Saleh, and you can read it, were going out to do a
3 small job, and he said Odeh, a small job is not something
4 trivial like shopping. So Harun would expose himself, show
5 himself in August 1998 to Odeh, but not to Kherchtou.
6 Let's compare Odeh and Kherchtou. Kherchtou said he
7 learned, and one of the ways he learned that Al Qaeda was
8 involved in actions against America in Somalia was because he
9 was in Nairobi helping people to get to Somalia. He never
10 went there, but he spoke to the people who were going to
11 Somalia, whereas Odeh, Odeh is in Somalia. Kherchtou left Al
12 Qaeda before the August 1996 declaration of jihad that says
13 we're at war with the American military. Odeh admitted he
14 heard that, he knew about that, and he stayed in. The leader
15 of the group he belongs to declares public war on America, he
16 doesn't leave. He's not a conscientious objector. He's not
17 saying this is wrong. He stays in from 1996 forward. He's
18 paid through the day of the bombing as a member of Al Qaeda.
19 Kherchtou leaves before Bin Laden issues the February 1998
20 fatwah against civilians and military. Odeh heard about that.
21 He didn't quit the group. He didn't say this is wrong. He
22 stayed in.
23 Kherchtou told you he understood the enemies were the
24 United States and the West. Odeh stayed in the group that
25 publicly stated our enemy is America. In fact, interesting,
5954
1 if you look at 1600A-T, the declaration of jihad, one of the
2 things I forgot to bring out, in the first page or so of text,
3 when Bin Laden is warming up he blames America for everything,
4 including what is happening in Eritrea, Ogaden, Somalia. He
5 says America is seen as being behind everything. You don't
6 have to conclude that it's Eritrea and Somalia or America,
7 because in Al Qaeda, America is behind everything they
8 perceive wrong. America can't go to feed the poor in Somalia,
9 it's colonization.
10 Back to the Kherchtou/Odeh comparison. Kherchtou,
11 let's look at 1993 when the apartment is used for
12 surveillance. We don't know whether the apartment is in his
13 real name or his fake name. It is not in evidence. Odeh at
14 the hotel is using a fake name. Kherchtou, when he sees
15 someone coming to the apartment with surveillance training,
16 bingo, thinks maybe surveillance. What does Odeh think when
17 he walks into the Hilltop Hotel and sees his trainer and bomb
18 maker from Afghanistan? What is this man suddenly doing in
19 Nairobi, particularly when Odeh even admits, even by his own
20 statement, which we will go through, and it is a dance, by his
21 own statement he knows about the fatwahs. He's had a
22 conversation in the spring of 1998 with Mustafa Fadhl, with
23 the prospect of an operation that has to be discussed. This
24 Mustafa Fadhl is saying I am against operations in Kenya
25 because I like Kenyans, but Saleh is for them. He's been told
5955
1 it's an emergency, he's been told that all of Al Qaeda has to
2 leave by August 6 -- not soon, by a date. Out of town by
3 Thursday, August 6. And he shows up in a hotel. Whatever
4 he's thinking, he's not putting his Kenyan i.d. card down
5 there. He is coming as Abu Basit Awad, and he sees his
6 trainer in bomb making, who doesn't like the nightlife, is
7 staying out all night.
8 When Kherchtou is in the apartment in 1993, the
9 people in Al Qaeda in Kenya are staying. In 1998, when Odeh
10 is at the Hilltop Hotel, everyone is going. Odeh is told in
11 1998 that whatever is going on, something is going to happen
12 soon to Mustafa Fadhl, and then from Saleh, the US Navy is
13 expected to retaliate. You'd have to be that cartoon
14 character Mr. Magoo -- remember him, big glasses, everything
15 goes on around him, he sees nothing -- even by his own
16 account. But he's a smart man. He's an educated man. He's a
17 thinking man. He knew what was going on. He didn't have to
18 figure it out.
19 In 1998, what's going on with Kherchtou? In 1998
20 Kherchtou is in Nairobi, no longer an Al Qaeda member. Harun
21 won't see him and he's checking into a hotel under his real
22 name. Odeh sees Harun, fake name, getting out of town before
23 the bomb hits.
24 Let's speak briefly about Odeh in Somalia. Just one
25 comment. Recognize in his own statement what Odeh said,
5956
1 focusing on who they are fighting against, not who they are
2 fighting with. He said, reading from page 7 of Government's
3 Exhibit 6 -- and if I forget to say this, one thing on which I
4 will wholeheartedly agree with Mr. Ricco and Mr. Wilford, read
5 Government's Exhibit 6 from beginning to end. I submit to you
6 it backs up what the government says many, many different
7 ways. It says here, it was, however, unacceptable for US
8 armed troops to be in Somalia. Bin Laden and Al Qaeda
9 considered this colonization. Odeh was asked if Bin Laden
10 would have attacked civilian workers like he attacked
11 soldiers. Odeh said no, but Bin Laden supported the attacks
12 in Mogadishu. Whatever is going on in Somalia, he understands
13 that Al Qaeda is against America.
14 He saw, by the way, he saw, Odeh admits, Saleh, Abu
15 Mohamed el Masry, this fellow, in Somalia on his way up to
16 Mogadishu. He saw Abdel Rahman, the bomb maker, in Somalia on
17 his way up to Mogadishu.
18 Let's talk about the fool. I submit to you Odeh is
19 playing a fool. Can you believe this? A sworn member of Al
20 Qaeda. Where do we get that he is a fool or that people in Al
21 Qaeda think he's a fool? The thread, the half thread that
22 comes from is the fact that Wadih El Hage in Texas, on August
23 20, 1998, smirks. He smirks when he gives an answer to Agent
24 Miranda, which is, he's a fool, caught with a Yemeni passport
25 he didn't look like. Does that mean the whole organization
5957
1 always thought he was a fool? Where does that come from?
2 Where is there any suggestion that Odeh wasn't a full-fledged
3 member of Al Qaeda, that he was going around saying I'm
4 against this, I'm going to do something to stop this, and that
5 these people thought he was a fool?
6 The fool and other theories are wishful thinking. We
7 all have a part of us inside that wishes Odeh wasn't part of
8 this. We all wish no one was part of this. We all wish it
9 never happened. But it was, and it did. Where is the fool?
10 Does the fool make any sense? Does it make any sense that
11 they would take the fool and say OK, here's the fool, let's
12 lure him to Nairobi, let's bring him to the hotel where the
13 people in charge of the bombing are hanging out. Let's keep
14 him around. Let's make sure he sees Abdel Rahman, the bomb
15 maker, let's make sure he sees Saleh, the mastermind. Let's
16 make here he sees Harun. Let's not just send him out of town.
17 Let's bring him and have him stay and wait until August 6 and
18 get on the plane with all the other people who are bombers.
19 Not only that, when we fool him, he won't be fooled enough
20 that he won't use a fake number name in the hotel, and we will
21 tell him things anyway. We will tell him an operation is
22 coming. We will tell him it's urgent. We will tell him it's
23 an emergency condition. We will tell him that the people in
24 Kandihar have relocated and that US planes are coming to
25 retaliate.
5958
1 No, he's no fool. Wadih El Hage's smirk in Texas
2 didn't leave him there so that they could trick him to go back
3 to Afghanistan.
4 Let's talk about more wishful thinking. The
5 conscientious objector. Why was he thought to be a fool? We
6 have heard about a lot of people who have nothing to do with
7 Al Qaeda: Siraj Wahhaj, Martin Luther King, Gandhi. Wow.
8 Where did that come from? When he said what the bayat was,
9 that was his state of mind. When al-Fadl explained what he
10 thought was Islamically correct, what bayat was, that's his
11 state of mind. Then we get Siraj Wahhaj, someone who has
12 nothing to do with Al Qaeda. Comes in from Bedford
13 Stuyvesant, where his jihad is a real struggle to do good. He
14 lectures all over the world. He goes to Harvard, he goes all
15 over. He doesn't lecture in Al Qaeda. He goes to Congress to
16 give an opening prayer. Al Qaeda wants to blow up Congress,
17 not address it. What does Siraj Wahhaj have to do with anyone
18 in Al Qaeda? They don't listen to Siraj Wahhaj. They are
19 still following Ibn al Tamiyeh. You can blow up a building.
20 Those who deserve to die, they die. Those that are innocent,
21 God will take care of them.
22 Odeh in his statement talks about how the bombing was
23 a mistake, it was a blunder. Khobar, the bombing in Khobar
24 was a hundred times better. Do you think Gandhi, Nelson
25 Mandela or Martin Luther King talk about which bombing is
5959
1 better? No, because Wahhaj says no bombing.
2 Statement. Let's talk about the statement, and I do
3 urge you to take a look at it. But I think in looking at the
4 statement, let's place everything as much as we can in
5 context. The question was raised why did Odeh talk. I submit
6 to you, paint the picture. OK. It's Nairobi. It's August
7 15, 1998. The bombing was a little more than a week before.
8 What position is Odeh in? What do you know from the evidence
9 alone is in his mind? In 1997, Al Qaeda thought that the guy
10 with the leg missing, Madani al Tayyib, Abu Fadhl al Makkee, a
11 Bin Laden confidante, was talking. He believed he was talking
12 to America. You know that Odeh knows about that because he
13 says he thinks he took all Bin Laden's money, and he says Al
14 Qaeda, we want to kill him. He's an informant. In his mind,
15 true or not, al Tayyib, an important member of the network,
16 has talked.
17 What do you know besides that? We will come back to
18 the documents later that show Wadih El Hage's house was
19 searched. Word got out through Al Qaeda. So he's thinking
20 OK, we know that much. He is caught in Pakistan redhanded.
21 He shows up just before the bombing happens, traveling under a
22 fake name, this close to making it through. Remember, his
23 passport worked at the Kenyan airport. His passport worked at
24 the first checker. It was the second checker that caught him.
25 He was this close to getting through. Now he's thinking OK,
5960
1 I'm on a plane back to Kenya. I left Kenya the night before
2 the bombing. I'm Al Qaeda, people in Al Qaeda, a person named
3 Madani al Tayyib has talked, I'm back here and I'm looking at
4 the FBI. What do they know?
5 I submit to you one thing he didn't have the benefit
6 of when he landed in Nairobi was the benefit of the judge's
7 charge tomorrow. He didn't have an explanation of the
8 conspiracy law, so he didn't know if what he said when he
9 tried to dance with the truth about the bombing would make him
10 guilty of conspiracy or not. I submit, what he is going to
11 do, he is going to say what do I have to do to explain? I
12 have to explain why I left, why I left in a different name. I
13 have to explain the Hilltop Hotel. He can talk. He can talk
14 about most of the people who are now in Afghanistan. They got
15 through. Operation is over, save myself.
16 You also know from his own statement that back in
17 Afghanistan people were trained in counterinterrogations. You
18 know he spoke English. You were shown a letter the other day
19 in handwriting that he wrote in English. His English is
20 coherent. When you read Government's Exhibit 6, small
21 detail -- that's the statement. Odeh talks about how he had
22 piles. That was an expression in quotes, in English.
23 Hemorrhoids. You are pretty comfortable with the English
24 language if you can pick that word out. That's a foreign
25 language, and you can pick that word out.
5961
1 Let's talk about in communicado, meaning being cut
2 off from the world. During the trial when they wanted it to
3 look that Odeh was cut off, Mr. Ricco asked Agent Anticev,
4 wasn't Mr. Odeh held in communicado? Well, I guess so, I
5 didn't see him with friends, no. But you know in the Kenyan
6 jail at least one person for a time had a magazine,
7 Al-'Owhali. But you know what, when Government's Exhibit 6
8 gets up there with Odeh explaining what the mistake in the
9 bomb is, understand you have to explain that somehow
10 information came in from the outside to explain those
11 statements. But let's be fair. You can assume that he wasn't
12 vacuum sealed from August 7 to when the interview happens. He
13 is dealing with Pakistani officials, in their custody. He is
14 dealing with Kenyan officials, in their custody. He is with
15 the FBI. Could someone have said do you know how many were
16 killed? Could one have shown him a headline? You know that
17 Agent Anticev wanted to show him the pictures of the people
18 who were killed. He said he refused to see them. Could he
19 have said look, there were over 200 people, mostly Kenyans,
20 killed? Sure. The relevance isn't just that he knew that a
21 bunch of people were killed and that they were Kenyans, it was
22 his response.
23 Let me show you what I mean. Two very important
24 points. The first has to do with what he figured out. When
25 we go to the sketch later, you remember, with what Ken Karas
5962
1 called a blast cone -- and there is no expert testimony, but
2 whatever you want to call it, it's a blast. You read here it
3 says Odeh further stated that the position of the pickup was a
4 mistake and the back of the truck where the explosives were
5 held should be facing the embassy. Odeh stated that if the
6 cab of the pickup was between the explosives and the embassy,
7 at least 60 percent of the shock wave would be diverted. Odeh
8 stated that the errant shock wave hit the wrong building.
9 Then it goes on. It says Odeh again stated that the truck had
10 to back up to the embassy in order to prevent the cab from
11 acting as a hindrance to the shock wave, thereby preventing
12 the surrounding building from being pounded.
13 Two important points why. You learned that the
14 physics was wrong, which tells you that that's not the
15 understanding of Don Sachtleben or Dr. Lloyd or any other
16 expert. But that is his understanding of physics whenever he
17 learned what happened, oh my god, the blast wave went in the
18 wrong direction. And lo and behold, in the greatest
19 coincidence in the world, that sketch is sitting in his house
20 when he is saying it. It is the mistaken physics of
21 describing how the blast works that is important, and that is
22 in his mind.
23 The second thing. Going back to Gandhi and Nelson
24 Mandela and Martin Luther King and Siraj Wahhaj who tries to
25 follow them, let me tell you something else. Look at what
5963
1 this says. Odeh stated that the operation conducted against
2 Khobar was a hundred times better than Nairobi. You know,
3 they don't get into comparing which bombing is better. They
4 don't do bombings. What does he say? And this goes to Mr.
5 Ricco's point yesterday about a question I asked of Agent
6 Anticev: Was Mr. Odeh concerned about the Americans being
7 killed? And he criticized the question that was asked where
8 Agent Anticev says well, he specifically didn't say that. And
9 Mr. Karas argued when you put the statement up next to the
10 sketch, you see what happened? But look through the
11 statement, read it first word to last word. Not only is there
12 no expression, no specific expression of remorse for Americans
13 being killed, but there are two giant indications that what he
14 wanted was the Americans killed, not the Kenyans. When he was
15 asked the hypothetical questions -- again, hypothetical is not
16 a 4-letter word. It just means a question, what if. Lots of
17 hypothetical questions were asked by defense counsel of
18 witnesses, including El Hage. Would you do an operation
19 against the United States in Saudi Arabia? Yes, if it were
20 Islamically correct. Not no. Would you do an operation
21 against the United States in Kenya if no Kenyans were killed?
22 The answer no, because I like Kenya and Kenyans. Would you do
23 an operation against the United States in some other country,
24 like Tanzania, if no Kenyans were killed? Yes, if Islamically
25 correct. Killing Kenyans, off the chart in his answers.
5964
1 Americans, Khobar was a hundred times better. He's not
2 against bombings.
3 Look at this. Odeh further stated that the position
4 of the pickup was a mistake and the back of the truck should
5 be facing the embassy. Skipping ahead, Odeh stated that the
6 errant shock wave hit the wrong building. I suggest to you
7 when he says there is a wrong building, there's a right
8 building. The right building is the embassy it should face.
9 The right building is what should have been blown up. The
10 right building is where the Americans are. He made a
11 decision. He made a decision to participate in a bomb plot
12 that was directed against the Americans.
13 They all knew there was a risk to Kenyans and that
14 didn't stop them, and maybe they are upset later that they
15 screwed up and more Kenyans died than should have, but they
16 made that choice and it's too late to go back on it now. But
17 in this case, if you read this statement and you read how he
18 answers the hypotheticals and you read how he answers the
19 question and you read what it says here, it's a screw-up, they
20 hit the wrong building. You figure out what it is that they
21 wanted to hit, the right building where the Americans are.
22 Taping interviews. Why don't I pick this point in
23 time to talk about taping. You have heard about it from a
24 bunch of different counsel. You know what, when Miranda
25 didn't write notes for the first half of the interview, why
5965
1 didn't you take notes. Second half of the interview, you
2 wrote notes, why didn't you tape? Then, if you are going to
3 tape, why not videotape so you can see a smirk. Now, coming
4 ahead to Mr. Cohn, Agent Gaudin, how maybe it is he who told
5 Mr. Mwaka Mula about where he was sitting? So you better
6 videotape not just the person being questioned but you better
7 videotape the person questioning. Are you going to videotape
8 the meals? Should we learn that maybe the Kenyan handmaidens
9 are doing something when the agents aren't around? You better
10 film when he is walking to the bathroom too, because if you
11 do, you will be asked what happened off camera, what happened
12 in the back of the room, who is making a face, who's making a
13 gesture, what happened at night.
14 Another thing. You had to bring all these cameras
15 everywhere you went? How practical is that? They don't tape
16 here in the United States. Whatever you think of the policy,
17 it's not done differently. Down the block when you do an
18 interview, it's not taped. It wasn't like they were treating
19 it differently.
20 Another thing, when you talk to people, don't you
21 want to get information? Don't you think it's a little
22 intimidating to say hey, I would like to know what you know
23 and stick a video camera in your face? You were all
24 voir-dired, questioned as jurors. Do you think you would have
25 felt more comfortable if there was a video running?
5966
1 MR. COHN: Objection.
2 THE COURT: Overruled.
3 MR. FITZGERALD: I also submit to you that there are
4 tapes in this case, and that's where the transition is. There
5 are tapes in this case that Wadih El Hage would prefer were
6 not there and there is a tape in this case that the Odeh team
7 does not want to deal with. They mentioned it once yesterday.
8 That is Government's Exhibit 710-96. Remember, that's the
9 letter to his wife. Let's set the stage about Government's
10 Exhibit 710-96, because that exhibit is very, very important,
11 because it shows you something. Like Somalia, when the people
12 in Al Qaeda knew back in 1993 that Al Qaeda is against
13 America, whoever they are with, 710-96 shows you something
14 about Odeh in 1997, long before he is checking into the
15 Hilltop Hotel as Abu Basit Awad. It's a series of tapes,
16 letters on tape to his wife. You can figure out the date is
17 probably, very clearly the first two weeks in September. I
18 will tell you briefly how.
19 During the letters there is side A of the tape and
20 side B of the tape. At the end of side A, Odeh says it is
21 September 9, 1997. Then you turn over to side B. You may
22 think people can sometimes do side B first instead of side A.
23 That happens. During the letter, letter 3 of which this is an
24 excerpt -- all the letters are in 710-96 -- he writes about
25 how he left home on March 18, 1997, and then he says it's been
5967
1 almost six months. Take six months from March 18 and you are
2 at September 18, 1997. With the thing on the other side
3 saying September 7, you are in September 1997.
4 Mr. Ricco talked about this letter briefly and said
5 it had to do with something happening in Somalia. Let's see
6 how that can't be true. What is going on in September 1997
7 that is going to upset Odeh and the people he knows? Three
8 things are going on. All three involve America. Two involve
9 Kenya as well. None involve Somalia. The three things going
10 on, Madani al Tayyib, Abu Fadhl al Makkee, the guy with part
11 of his leg missing, has defected, they think. He is talking
12 to the British, the Americans, the Saudis, and Harun is having
13 a panic attack. That's America, that's happening somewhere
14 else. You will see in the letter, the reference is something
15 happened in Kenya.
16 If you look at 300A-T, the security report written by
17 Harun, he writes about how five terrorists reported in the
18 paper are arrested in Kenya. They think the Americans are
19 behind it, that America is behind going around grabbing the
20 Mujahideen in Kenya. That report Madani al Tayyib is
21 cooperating, they think, and there are arrests in Kenya that
22 the Americans are behind.
23 The next thing that happens, Wadih El Hage gets
24 stopped at the airport, his house gets searched, and he
25 leaves. You know Harun has a panic because Wadih El Hage
5968
1 tells you Harun was hiding in Kenya. Kherchtou tells you he
2 runs to the Sudan. Didn't come back to Kenya until May of
3 1998. There is that panic. The arrest in coastal Kenya that
4 the Americans are perceived as being behind, and the American
5 search of Wadih El Hage's home.
6 My beloved wife. Something happened which you may
7 have heard of or you are aware of some of its details.
8 September 1997. Some kind of distress crisis has happened to
9 few brothers where you are. She is in Kenya. He is in
10 Somalia. The problem is in Kenya. They had some problems.
11 These problems were expected. They were not farfetched. One
12 expected these problems to happen today before tomorrow and
13 yesterday before today. But we had no idea the nature of
14 these problems and their magnitude. We heard the news about
15 something that had happened which may compel us to stay here
16 in our locations without moving, due to the difficulty of the
17 situation where you are. He is in Somalia, she is in Kenya.
18 And also due to the inability to get to you using the way, or
19 any of the ways that could take me to you. So it has been
20 decided that we have to stay here and not to move. It goes on
21 to say, thank God for your letters that have been reassuring.
22 Harun also said good news about you when he came over.
23 So he is getting messages from Harun in September
24 1997 and what is on Harun's brain? Madani al Tayyib, the
25 arrests in Kenya, Wadih El Hage's search.
5969
1 The letter goes on. Remember, this is the Americans
2 and the Kenyans perceived as working together. Odeh tells you
3 that he has no problem with the Kenyans. He likes Kenyans.
4 It says here, but may God fight against the enemies. They
5 neither sleep nor rest, and they don't let anybody rest.
6 Anyhow, this is the way it should be. If they let us rest we
7 will not let them rest. So they certainly have their time and
8 we have ours. This time may have been theirs, but not all
9 times will be theirs. We will never allow that. And may God,
10 the master of universe to respond twentyfold to one of theirs.
11 Thank God we are still alive and we are still capable of
12 giving and resisting. But of course the matter will require
13 time, preparation and thinking. Again, time, preparation and
14 thinking to respond twentyfold to something that the enemy did
15 in Kenya. Think about that.
16 Which brings me to the sketches. Maybe I will try
17 and do another topic that won't take 10 minutes. Why don't we
18 talk about the TNT and the PETN, because I don't want to get
19 in the middle of the sketch and have to stop.
20 You know, yesterday it was said, why didn't we tell
21 you about the fingerprints on the grinder, the grinder from
22 Tanzania? Why didn't Karas tell you about that? After all,
23 the clothes test positive, TNT and PETN. There is no PETN in
24 Nairobi. Makes sense. It must have come from the Humsafar
25 magazine of Fahad who was down in Nairobi with the fingerprint
5970
1 on the grinder. There are a couple of problems. Number one,
2 you were told about the fingerprint on the grinder. That
3 shows that the PETN on Mohamed Odeh's clothing came from the
4 magazine, the magazine from the grinder from Fahad? No. Why
5 didn't Karas tell you that? Because it makes no sense. First
6 of all, check the record. The grinder did not test positive
7 for PETN. Fact number one. Number two, let's focus on
8 Nairobi. The Nairobi bomb scene, the bomb scene did not test
9 positive for PETN. That's the embassy. But Nairobi did. 43
10 Runda where the bomb was built, that tested positive for PETN.
11 The point was, when we said there was no PETN at the bomb
12 scene, not that there was no PETN, the expert told you, big
13 bombs often don't leave residue. When those agents and
14 investigators were going around the bomb scene bumping into
15 walls, they weren't getting PETN on them. It wasn't there. I
16 submit to you, the PETN was from Runda Estates. PETN was used
17 in Nairobi in making the bomb, and therefore this magazine to
18 the grinder that didn't have PETN doesn't make sense.
19 You know that 43 Runda, the search that didn't
20 contaminate the clothing, the first swab was on the 20th, the
21 full blown search was days later, and already the clothing is
22 in FBI custody, taken over by Whitworth. We will talk about
23 Whitworth briefly. Whitworth, Mr. Wilford toward you, that's
24 the guy that separated out the clothes? He is not a bomb
25 expert. What kind of idiot looks at clothes for stains when
5971
1 you are trying to find one billionth of a billionth of an
2 aspirin. Two things. Whitworth is a bomb expert. He
3 testified at the time he was trained as a bomb expert. They
4 used him to collect evidence because he had bomb expertise.
5 He didn't tell you that he could look and spot PETN and spot
6 it with the naked eye like a ketchup stain. He looked for
7 things that main contain forensic evidence. He saw a magazine
8 with indented writing. You write something in a letter, it's
9 underneath. He is looking at it, he is thinking hey, take a
10 shot. Maybe it's a laundry list, maybe it's unintelligible.
11 Check it. He looked for clothes that were used, clothes that
12 were soiled, figuring if it is a brand new shirt in a Macy's
13 bag, that's not worth checking. So he is looking for a shirt
14 that is soiled.
15 One thing. If you ask for any anything in the jury
16 room, ask for that shell shirt. It is still soiled. It still
17 smells. That is not a brand new shirt, he says, somebody
18 worked in that. Those pants, let's check that out. That
19 sarong or sheet, whatever it is, it looks like something has
20 been happening with it, let's check it out. He didn't come to
21 the stand and say I didn't need to do any more, I looked with
22 my eyeball and checked out PETN. He sent it to the lab. What
23 does the lab get? The lab gets positive hits on those things.
24 He took an educated guess and then it went to the lab.
25 Another thing about that. Remember Dr. Lloyd. He
5972
1 said two things we will address. First, he faults the
2 government for not testing quantity. Remember, Kelly Mount
3 told you you can test quantity but the quantity is a sample.
4 You take a shirt, check this spot because it is microscopic
5 and you get a concentration. Maybe there is a lot here and a
6 little there. You test a sample, it doesn't tell you the
7 quantity on the shirt, it tells you the quantity of the
8 sample.
9 You know what else Dr. Lloyd tell you? Why didn't
10 Kelly Mount check the rest of the clothes in the bag? Then
11 you learn she did. That bag, that famous Nike bag with Odeh's
12 clothing in it, the bag, no, doesn't test positive. The
13 handle? Doesn't test positive. The clothes you heard about
14 that test positive? They do. The other ones don't. It
15 wasn't mass contamination. It wasn't people grabbing the bag
16 and putting PETN on it. The bag is clean.
17 Briefly, the green jacket. Enough of the green
18 jacket. OK, the green jacket got missed. The green jacket
19 tested negative. So wherever the PETN came from, it wasn't
20 jumping off the green jacket. The money? OK. Think for a
21 moment what they asked Agent Doran. Bombs going off in two
22 countries, searches going on all over the place, evidence that
23 is going to be brought back to America. You have heard about
24 lots of searches in Tanzania, lots of searches in Nairobi.
25 You saw the bomb scene. You saw the rubble. Forget about the
5973
1 people. All that evidence, all those people in the fall of
2 1998, Mohamed Odeh is looking for his glasses. Someone calls
3 an agent in New York and says can you find Mohamed Odeh's
4 glasses? Can you get his money? Believe it or not, she's not
5 a computer. She has to look. She writes a note to Nairobi.
6 She doesn't know it's there. When they check for the money,
7 you know what they got? The money in the right amount.
8 I submit to you the clothing is what it is. The
9 clothing is clothing that tests positive for TNT and PETN, and
10 it didn't come from the bomb scene, it didn't come from the
11 search of Runda, it didn't come from Tanzania. It came from
12 exposure by Odeh to someone or some thing contacting, in
13 contact with PETN and TNT long before there was a mad dash for
14 Afghanistan.
15 Your Honor, if we could pick it up tomorrow.
16 THE COURT: Ladies and gentlemen, let me give you as
17 best I can some sense of where we are, and that is, sometime
18 mid-morning tomorrow closing arguments will be completed and I
19 will begin my charge to you, which will take some time. If
20 you could plan maybe to stay a little past 4:30 tomorrow, that
21 might be helpful.
22 Thursday, remember, we start at 1:00. We will sit
23 this Friday. I have the note from the alternate asking a
24 question about alternates, and I will respond to that
25 tomorrow. Have a good evening. We are adjourned until 10:00
5974
1 a.m. tomorrow.
2 (Jury excused)
3 THE COURT: Since so much of a point has been made
4 about the jury reading all of Exhibit 6, I would think Exhibit
5 6 is a good thing to have 12 copies of.
6 With respect to this question of what happens to the
7 alternates, on which I will seek further guidance from
8 counsel, during the break I was looking at the statute, 18 USC
9 3593(b). It says: "The hearings shall be conducted before
10 the jury that determined the defendant's guilt or before a
11 jury impaneled for the purpose of the hearing if the jury that
12 determined the defendant's guilt was discharged for good
13 cause."
14 Then it says: "A jury impaneled pursuant to
15 paragraph 2 shall consist of 12 members unless at any time
16 before the conclusion of the hearing the parties stipulate,
17 with the approval of the court, that it shall consist of a
18 lesser number."
19 I don't think there is a significant likelihood of a
20 stipulation to a lesser number in a death case where the jury
21 has to be unanimous before death will be imposed or not.
22 Heads are being moved in a direction which suggests that that
23 is correct.
24 So, as I read the statute, it is before the jury that
25 determined the defendant's guilt. It has to be 12 people,
5975
1 unless, C, the jury that determined the defendant's guilt was
2 discharged for good cause. Which leads me, again assuming
3 there is no precedent for this, compelling precedent for this,
4 to believe that it makes very good sense to keep the
5 alternates on tap so that if there comes a time when we have
6 the penalty phase and we have lost a juror, we can call upon
7 an alternate and still have a jury of 12, because the
8 alternative to that, I think, is to impanel an entirely new
9 jury, and then -- well, you are shaking your head vigorously
10 yes, Mr. Cohn, but I don't think, if it can be avoided, it's a
11 very attractive prospect to go through the voir dire process,
12 which took us a month, slightly less, and to present to an
13 entirely new jury the background of this case.
14 So that my inclination, as I say, absent some
15 compelling precedent otherwise, would be, after the jury has
16 started, to excuse the alternates, have them on telephone
17 call, with the understanding that if the jury reconvenes they
18 rejoin the jury. And if we then lose a juror, we can still
19 have the jury of 12, which is compelled by the statute.
20 If that isn't the case, then I certainly have to
21 rethink the question of timing, because if we have only 12
22 jurors and with a prospect that if we lose one juror because
23 of health or accident or other reason, we have to start all
24 over again, then you can expect that I will want the penalty
25 phase to begin just as promptly after the jury verdict as
5976
1 possible. There is too much of an investment to run the risk
2 of starting from scratch, which apart from the time and effort
3 on everybody's part is contrary to what I understand the
4 spirit or sense of the statute to be, which is a preference
5 for having the jury which heard the liability phase hearing
6 the penalty phase. Just think of all the arguments which have
7 been made improperly to this jury which are really directed to
8 the death penalty that would be wasted if we had to start with
9 a whole new jury. I am not pointing anyone out, Mr. Baugh.
10 (Laughter)
11 THE COURT: I will await your further views on the
12 matter. I assume you have -- about how much time left?
13 MR. FITZGERALD: Again, from the person who predicted
14 a 9 to 12 month trial, I will be done certainly tomorrow
15 morning and I am hoping to be done around the mid-morning
16 break, but certainly the morning.
17 MR. COHN: Your Honor, the government got four hours.
18 It is supposed to be a brief rebuttal.
19 THE COURT: No, three and a half hours. I gave
20 everyone the amount of time that they requested.
21 MR. COHN: I think the government asked for four
22 hours.
23 THE COURT: And so far they have had two.
24 MR. COHN: They have used two and a quarter -- two --
25 that means the mid-morning break, not 1:00. My summation was
5977
1 an hour and a quarter, they can't take an hour from my
2 summation.
3 THE COURT: I laid the ground rules down very, very
4 specifically and I laid them down very specifically just to
5 avoid this, that I would give everybody the time that they
6 requested and no more.
7 MR. COHN: That's four hours for the government.
8 That's all I'm saying. That's what they asked for.
9 THE COURT: 2:15 to 4:30 with a midafternoon break is
10 two hours.
11 MR. COHN: And tomorrow to 11:30 is an hour and a
12 half --
13 THE COURT: We are adjourned until tomorrow at 10
14 a.m.
15 MR. DRATEL: Is it your Honor's intention to charge
16 in one session and complete the charge tomorrow?
17 THE COURT: I don't know. I really don't want to
18 rush it.
19 MR. DRATEL: Do you have an idea how late you will
20 be?
21 THE COURT: No.
22 (Proceedings adjourned until 10:00, Wednesday, May 9,
23 2001)
24
25
5978
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
HTML by Cryptome.