4 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 58 of the trial, June 4, 2001.
See other transcripts: usa-v-ubl-dt.htm
6964
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 June 4, 2001
8:30 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
6965
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
5
FREDRICK H. COHN
6 DAVID P. BAUGH
LAURA GASIOROWSKI
7
DAVID RUHNKE
8 Attorney for defendant Khalfan Khamis Mohamed
9
10
11 (In open court)
12 THE COURT: Good morning. Let's begin.
13 I received a joint request with respect to the
14 scheduling of the penalty procedures with respect to defendant
15 KK Mohamed, and that is that assuming that a decision is
16 rendered by the jury prior to such time that those proceedings
17 begin on the 18th, and I have no problem with that day and
18 that request is granted.
19 When we were last together the Court sustained the
20 government's objection to a document which we labeled Court
21 Exhibit A which is captioned Extreme Birth Deformities, but we
22 did not I think adequately identify the group of photographs
23 as to which the Court also sustained objection and that group
24 consists of a document headed, The Children of Iraq in
25 Pictures.
6966
1 MR. BAUGH: Excuse me, your Honor, may I withdraw
2 those? I mean it would just --
3 THE COURT: You may withdraw them.
4 MR. BAUGH: I'll withdraw them.
5 THE COURT: You are withdrawing all of those.
6 MR. BAUGH: Yes, the photos that you have there, the
7 deformities and the other two photos are withdrawn.
8 THE COURT: All withdrawn.
9 MR. BAUGH: Yes.
10 THE COURT: All withdrawn, very well. I am going to
11 return them.
12 I have, as requested by the parties reviewed the
13 video cassette of the 60 Minutes broadcast on which Madeline
14 Albright appeared. The purpose of this morning, as I
15 understand it, was to review specifically what exhibits the
16 defendant proposes to introduce this morning and to hear any
17 specific objections by the government. I take it that the
18 defendant has identified and exhibited to the government any
19 and all exhibits it intends to introduce today.
20 MR. BAUGH: That's correct, your Honor.
21 THE COURT: What is the sequence of exhibits that you
22 seek to introduce?
23 MR. BAUGH: The first one we have, we have a tape
24 qued up here. The part we're going to have is on reflection
25 this week I think we have more than an hour's worth of tape, I
6967
1 know we do, I have an hour's review, so maybe I'm going to ask
2 the Court if we can delay starting or we can do some of these
3 over the lunch break, but we have more than an hour's worth of
4 tape.
5 THE COURT: Is that the first order of business
6 before the jury, the playing of these tapes?
7 MR. BAUGH: No, your Honor.
8 THE COURT: What is the first order of business?
9 MR. COHN: The first order of business, I think only
10 partial because I'm waiting for some more documents from the
11 government, will be on the role in the offense, and that will
12 take me about a half hour. I've given the government what I
13 intend to use. It will consist first of just reminding the
14 jury of where they can find evidence during the principal
15 trial of Salim on Odeh. There will be some material culled
16 from a prior --
17 THE COURT: Let me interrupt you. Did the government
18 have objections to the proposed --
19 MR. COHN: I'm not going to read them, just give the
20 references.
21 THE COURT: Does the government have any objections
22 to that?
23 MR. FITZGERALD: Not in substance, Judge. Some of it
24 may be argument for summations, but not in substance.
25 THE COURT: All right. Then following that what
6968
1 occurs.
2 MR. COHN: Then we have some extracts from Odeh's
3 Pakistan statement, Odeh's Pakistan statement made in Pakistan
4 that was not admitted in the trial. There are two extracts
5 which we've given the government and we're just going to say
6 of another statement made by Odeh. That's how we're going to
7 identify it, if that's all right with the government. I
8 thought about it, but I'm open to however the government wants
9 that identified for the jury. We'll just tell the jury that
10 it's a statement made by Odeh which was not produced in the
11 trial.
12 THE COURT: One at a time. I want to be specific.
13 Does the government have any objection to that?
14 MR. FITZGERALD: I think, your Honor, the jury
15 probably should just be told there was a statement made in
16 Pakistan so the jury is not confused as to whether it's a
17 statement made to the American government.
18 MR. COHN: That's fine. I don't care how they do it.
19 I just need to do it.
20 THE COURT: In Pakistan.
21 MR. FITZGERALD: To Pakistan officials.
22 THE COURT: The next order of business.
23 MR. COHN: Then we're going to read some extracts
24 from the original form of this indictment as to Salim and
25 Odeh, stuff that was we believe was carved out of what was
6969
1 presented, because of Salim being severed, and so we're going
2 to read those to the jury.
3 THE COURT: Any objection?
4 MR. FITZGERALD: No, Judge.
5 MR. COHN: And then we will be reading from the
6 criminal complaint as to Fawwaz certain extracts of that
7 complaint, and the two others we have that, and that is all
8 digitized. The government, because of a late request from me
9 and I apologize to the Court, hasn't given me the other two
10 complaints as to the other people. They will not be
11 digitized. We will just read those portions of the complaint
12 that are fact specific to those people. And then the
13 government and I are working on a stipulation as to the issue
14 of the extradition of Salim and the three proposed people to
15 be extradited from England being conditioned on nonimposition
16 of the death penalty. That will be role in the offense. It
17 may come in in segments because of what I don't have, but
18 mostly it will come in first --
19 MR. FITZGERALD: No objection in substance and
20 Mr. Francisco is looking for the complaints and we'll finalize
21 the stipulation hopefully over lunch.
22 THE COURT: Following that.
23 MR. BAUGH: We would ask the Court to take judicial
24 notice of the Code of Federal Regulations 501.2, national
25 security cases. We'll probably mark it as an exhibit and
6970
1 publish it to the jury.
2 MR. FITZGERALD: Judge, I think the relevant
3 provision should be 501.3 I think the national security cases
4 are usual espionage cases where you don't want a spy to
5 communicate.
6 MR. BAUGH: That's correct. Followed by the Madeline
7 Albright tape, 60 Minutes tape.
8 THE COURT: Objection to Madeline Albright tape?
9 MR. FITZGERALD: Not pressing the objection on that
10 tape.
11 THE COURT: Very well. I could have slept a little
12 later this morning.
13 MR. BAUGH: Followed by the testimony of Ramsey
14 Clark.
15 THE COURT: Testimony of Ramsey Clark on what subject
16 now?
17 MR. BAUGH: Excuse me, your Honor?
18 THE COURT: On what subject matter?
19 MR. BAUGH: He has visited Iraq every year for the
20 last ten years, and the facts of the sanctions, what he has
21 seen. Also, his, he was going to be asked about his
22 conversations, his knowledge about what people in that part of
23 the world are saying about the Iraqi sanctions, what is
24 routine conversation, what people know about it.
25 THE COURT: Any objection by the government?
6971
1 MR. FITZGERALD: Not in the concept.
2 THE COURT: Not to the concept. Obviously that's all
3 you can deal with.
4 MR. FITZGERALD: Also, I just want to make sure his
5 views on the death penalty are not elicited for reasons having
6 to do with the other videotape deposition we saw where the
7 person was asked and the witness said that he opposes the
8 death penalty. I think that obviously should not be elicited.
9 MR. BAUGH: I know I can't do that.
10 THE COURT: Would you alert Mr. Clark to that?
11 MR. BAUGH: I will, your Honor. I will tell the
12 Court that he -- well, okay, he has done a lot of, he has
13 proposed a lot of legislation in opposition to the death
14 penalty.
15 THE COURT: That's irrelevant, isn't it?
16 MR. BAUGH: Okay. The next item we would introduce
17 would be the Defense Intelligence Agency memo, Iraqi Water
18 Treatment Vulnerability.
19 THE COURT: Any objection? That we marked as Court
20 Exhibit G of may 31st.
21 MR. FITZGERALD: I have a relevance objection in that
22 Mr. Baugh has been arguing that that proves that the American
23 government targeted the facilities. Why was an assessment
24 made of what is going to happen based on what were damaged and
25 I think there is a danger of prejudice outweighing the
6972
1 probative value.
2 THE COURT: It specifically states subject, Iraq
3 water treatment vulnerabilities. I'll allow it.
4 MR. BAUGH: The next item would be the Geneva
5 Convention protocol one, outlawing the targeting of such. I
6 should tell the Court before we even get to the DIA document
7 Mr. Clark will testify that he has seen bomb damage to water
8 treatment facilities during his tours of Iraq.
9 THE COURT: Any objection to the Geneva?
10 MR. FITZGERALD: Yes, Judge.
11 THE COURT: And the basis of the objection is?
12 MR. FITZGERALD: I think it's irrelevant. It's not
13 been shown to be a motivating factor for al-'Owhali what his
14 opinion of the Geneva Convention, is and I think we're getting
15 way beyond the scope of what al-'Owhali's subjective belief is
16 which might motivate a subjective determination of a
17 collateral matter which is whether or not the UN is complying
18 with the Convention.
19 THE COURT: I've given that matter a lot of thought
20 and also the relationship between that and my ruling that the
21 divisions of the penal code defining terrorism were not for
22 the jury because that was a legal question. On the other
23 hand, my understanding of the Geneva Convention is that it
24 represents a codification of accepted principles of rights and
25 behavior and I'll allow it.
6973
1 MR. BAUGH: We would follow this with a 64 minute
2 tape called --
3 THE COURT: You are going to play a 64 minute tape?
4 MR. BAUGH: I'll give you a summary of it, it if
5 you'd like.
6 THE COURT: Give me a summary.
7 MR. BAUGH: Briefly, your Honor, it tracks the
8 development of tension in the Middle East leading up to
9 periods of nationalism in the 1950s, the development of Sudam
10 Hussein and now the Middle East has moved to the situation it
11 is in now.
12 THE COURT: Who is the producer of the tape?
13 MR. BAUGH: It's a promotional documentary and it was
14 released in New York a couple of weeks ago. We have the
15 cartridge here that it comes with.
16 THE COURT: Has the government seen it?
17 MR. FITZGERALD: Yes, Judge, we would object. I do
18 not think, I think it's a biased video. It's produced by an
19 entity called Free Will Productions, but I note, for example,
20 in addition to including some morbid photographs and
21 photographs of dying babies, it has wholesale speculation
22 unknown male saying there is a secret agenda he does not know.
23 There is an investigative reporter.
24 THE COURT: That would be sometime this afternoon in
25 any event. How long do you anticipate Ramsey Clark's
6974
1 testimony to take?
2 MR. BAUGH: I think we're clearly up to noon by now
3 before we even get to that tape.
4 THE COURT: I'll view the tape during the lunch
5 recess.
6 MR. BAUGH: All right, your Honor.
7 THE COURT: Let me come back to the Madeline Albright
8 tape.
9 MR. BAUGH: 60 Minutes tape.
10 THE COURT: The 60 Minutes tape. That was done in
11 1996?
12 MR. BAUGH: Yes.
13 THE COURT: Judging by what it said there it was at a
14 time when there was a total embargo on Iraqi oil and prior to
15 the time that there was a partial lifting of sanction also
16 permitting the sale of some Iraqi oil the proceeds of which
17 were to be used for food and medicine and so on, and I'm
18 wondering if some sense of completeness or fairness would
19 dictate that the jury be advised of that.
20 MR. BAUGH: Two issues, there, your Honor. One cited
21 by my co-counsel that the government -- Denis Halliday is
22 another tape that coming in, that we're going to discuss later
23 on in a few minutes which the government has seen. Mr.
24 Halliday was the humanitarian director for the United Nations
25 who resigned. He explained the oil for food program and it is
6975
1 not like what most of us lay people to that issue understand,
2 and I'll tell you briefly the oil for food program is set up
3 whereby Iraq is permitted to sell certain amounts of oil that
4 it manufactures. The money from the sale, all their sales is
5 put in the government with the United Nations. Iraq can then
6 ask for permission to purchase things and if the contracts are
7 approved, the money is released. The first contract, which
8 was for rice, took 27 months to clear.
9 THE COURT: What you're saying is that there is going
10 to be further presentation to the jury with respect to the oil
11 for food, and that the situation, whether it's effective or
12 not effective, the situation which existed as of the time of
13 the Albright tape is no longer the present situation.
14 MR. BAUGH: That's correct, Judge.
15 MR. FITZGERALD: Except we have a vigorous objection
16 to the Halliday tape. That tape was taken I believe on May
17 21st of this year. It's styled a deposition except we weren't
18 told about it and we weren't there. So it was a filmed --
19 THE COURT: Deposition of who?
20 MR. FITZGERALD: Denis Halliday. So my understanding
21 is that if the defense wishes to offer his testimony through
22 videotape that we received late last week, and he testified to
23 a number of things, his opinion of international law, and it
24 basically it's a person we have no opportunity to question.
25 And also gives his opinion on the death penalty, among other
6976
1 things. It is speculation about the effects of the depleted
2 uranium weapons and his personal definition of genocide. He
3 describes the no fly zones as being genocide. It comes from
4 his own opinion and we would object to that tape.
5 MR. BAUGH: Your Honor, Mr. Halliday contacted
6 Ms. Morales on 12 o'clock on May 21st and said: I'm leaving
7 for Ireland at 3. If you want my testimony, you have to come
8 get it today. We contacted the court reporters of this court,
9 attempted to set up a deposition. We were unable to get one.
10 We called several individual videograph companies. We finally
11 found one that said they would show up, and we could not get a
12 court reporter either from the court or from a private firm.
13 We went over. We asked him some questions, about
14 forty minutes worth I believe. He answered them. I did ask
15 him as he told me he wanted to he is opposed to terrorism. I
16 asked him on the tape whether or not, what was his personal
17 stance on terrorism. He said, I do not want people to think
18 I'm endorsing terrorism. I'm a Quaker. I am opposed to the
19 death penalty. The only reason I am here doing this now is
20 because of the posture of the death penalty in this case. I
21 am opposed to all forms of violence. And that was the
22 statement that he made. I did not ask him for his view on the
23 death penalty. I asked him for his view on terrorism.
24 THE COURT: There are two aspects of the objection.
25 One is whether there are portions of it which should be
6977
1 redacted, and the other is whether the lack of an opportunity
2 on the part of the government to examine or cross-examine is a
3 valid objection. Is Mr. Halliday presently available?
4 MR. BAUGH: No, unfortunately, he is in either
5 Ireland or somewhere in Central America.
6 THE COURT: When was the last contact with
7 Mr. Halliday?
8 MR. BAUGH: May the 21st just before he got in the
9 cab to go catch an airplane to Ireland.
10 THE COURT: But do we know for a fact he's not back?
11 MR. BAUGH: He will not be available until June 12th.
12 Believe me he is an impressive witness and I would have rather
13 had him here. However, your Honor, I will call to the Court's
14 attention that in death penalty cases in the past under the
15 definition, believe me it is not limited to motivation of the
16 defendant. Circumstances of the offense, by example, we have
17 had cases, I'm familiar with one case in Florida plus the case
18 I had in Virginia where the defendant in a drug murder crime
19 was, we had been permitted in the past to show the
20 circumstances of the offense by bringing in videotape of the
21 project in which he was raised, records pertaining to them.
22 Yes, I'm seeing your head shake --
23 THE COURT: Do we have a written transcript of the
24 videotape?
25 MR. BAUGH: No, we do not, your Honor.
6978
1 THE COURT: That's very difficult because if we're
2 going to deal with redactions it would be much --
3 MR. COHN: Perhaps while some of this is going on
4 after my presentation Ms. Campion and I can try and do
5 something for the Court on that. We'll try and get at least
6 a, if not a verbatim transcript, at least one that will let us
7 identify parts of the tape so that we can -- if that will be
8 helpful, we'll try.
9 THE COURT: Are you going to finish today?
10 MR. BAUGH: I'm certainly striving to yes, your
11 Honor.
12 THE COURT: You think you might finish today.
13 MR. BAUGH: Yes, I'm trying to.
14 THE COURT: It may very well be that we'll have to
15 defer your closing until tomorrow so that I can review a
16 transcript, and then if the tape has to be edited somebody
17 will have to do the editing.
18 MR. COHN: What we'll do, your Honor, is I'll go over
19 to audiovisual because pause we don't have a tape player and
20 that's where you'll be able to find me.
21 MR. BAUGH: We have a charging conference at 4:30.
22 THE COURT: Let me interrupt. I take it from your
23 presentation on Thursday and what you've just said that
24 Mr. Al-'Owahli is not going to testify. Is that correct?
25 MR. BAUGH: That is correct, your Honor.
6979
1 THE COURT: Is it not appropriate that he be
2 allocuted as to that?
3 MR. BAUGH: Would you like to do that now?
4 THE COURT: Yes.
5 MR. BAUGH: All right.
6 THE COURT: Mr. Kenneally, will you administer the
7 oath to Mr. Al-'Owahli.
8 MR. BAUGH: You want me to bring the interpreter up
9 here, your Honor.
10 THE COURT: All right, yes.
11 (Defendant sworn)
12 THE COURT: Mr. al-'Owhali, your attorney has advised
13 me that it's your intention not to testify at this penalty
14 phase of these proceedings. Is that correct?
15 DEFENDANT AL-'OWHALI: Yes.
16 THE COURT: Do you understand that you have a right
17 if you wish to testify at these proceedings?
18 DEFENDANT AL-'OWHALI: Yes.
19 THE COURT: You understand also you have a right not
20 to testify in which case the jury will be advised that it
21 cannot hold that against you. Do you understand that?
22 DEFENDANT AL-'OWHALI: Yes.
23 THE COURT: Mr. al-'Owhali, you were present on
24 Thursday, and present this morning while your attorney
25 summarized the positions that will be taken on your behalf in
6980
1 these proceedings. Have you followed and understood the
2 nature of the arguments that will be advanced on your behalf?
3 DEFENDANT AL-'OWHALI: What is the impact of my
4 understanding or lack thereof?
5 THE COURT: In all criminal trials the Court is
6 concerned that if the outcome of the proceeding is against the
7 defendant that the defendant not thereafter say certain things
8 were done or were not done against his wishes or contrary to
9 instructions which he had given to his attorney, and it always
10 becomes difficult then to try to go back and understand the
11 state of the mind of the parties at some earlier date; and
12 that's the impact of your answer to the question, that I want
13 the record now to reflect whether anything which your counsel
14 proposes to present to this jury is contrary to any
15 instructions that you've given to them.
16 MR. BAUGH: May I consult with my client a second,
17 Judge?
18 THE COURT: Excuse me?
19 MR. BAUGH: May I consult with my client, or, better
20 still, I should tell this Court that your question, my client
21 is, our client is relying upon our representations to him as
22 counsel, and answering his questions, and he's basing his
23 decisions upon what we are advising him. So, therefore, any
24 decision he is making is going to be, unfortunately for your
25 concern, depending upon the advice of counsel and that advice
6981
1 is sufficient.
2 THE COURT: I have no problem with that, but what I
3 really want to do for the protection of everybody in the event
4 that there should be any posttrial applications is to make
5 sure that what is happening, whether based on your advice or
6 Mr. al-'Owhali's independent conclusion is in accordance with
7 his wishes, and that nothing is happening which is contrary to
8 any explicit instructions that he's given.
9 MR. BAUGH: If I may, your Honor, are you asking my
10 client are we doing anything that he told us not to do or
11 refraining from doing something that he has told us to do.
12 THE COURT: Exactly.
13 MR. BAUGH: Thank you.
14 DEFENDANT AL-'OWHALI: I accepted the defense that
15 would be used on my behalf at this stage of the proceedings
16 with the condition that it will not be used against me in any
17 future proceedings or retrial.
18 THE COURT: I'm not sure I understand the nature of
19 that proviso.
20 MR. BAUGH: When we were in chambers in the robing
21 room last week, your Honor, before we started I advised the
22 Court that we had advised our client that we are going to take
23 certain positions predicated upon the idea because the jury
24 has found him guilty, that for purposes of this proceeding the
25 acts that are alleged have occurred.
6982
1 THE COURT: Yes.
2 MR. BAUGH: He is not conceding, I mean he is not
3 conceding that the actual facts did occur. Therefore, we
4 don't want the Court to, or any future tribunal to assume that
5 when I get up and say, you have found the defendant guilty
6 that means he has committed these things, that should not be
7 construed as an in-court confession should there be a retrial.
8 THE COURT: These entire proceeding are based on the
9 fact that this jury has found the defendant guilty.
10 MR. BAUGH: That is correct.
11 THE COURT: Does the government have any objection to
12 that?
13 MR. FITZGERALD: No, Judge.
14 THE COURT: And subject to that then, is everything
15 in accordance with your instructions to your attorney?
16 MR. BAUGH: Mr. al-'Owhali has directed, and this is
17 for us, and it should be of concern to the Court, but
18 Mr. Al-'Owahli has said he does not wish to have the excerpts
19 from the Odeh statement admitted at this time and we would
20 like to discuss it before we get to that.
21 DEFENDANT AL-'OWHALI: No problem.
22 THE COURT: Very well. Now, we interrupted your
23 presentation with respect to -- with respect to the Halliday
24 tape. I am going to defer on that until I've had an
25 opportunity to review either a paper transcript or preferably
6983
1 a transcript. And then what else?
2 MR. BAUGH: Excuse me. Did you want me to put the
3 name of the interpreter on the record for that most recent
4 colloquy?
5 THE COURT: Yes, all right.
6 MR. BAUGH: That was Mr. Toufi Maged. After the
7 Denis Halliday tape there is a document called The Iraq Fact
8 Sheet, which is a document obtained off the Internet from the
9 United States Central Command just as to the per capita
10 income, the rate of exchange and other information concerning
11 Iraq.
12 MR. FITZGERALD: No objection.
13 MR. BAUGH: Then there is an excerpt from a tape
14 called Silent Weapon The Effect of the Iraqi Embargo. It is
15 prepared by a religious group. We have taken and excerpt from
16 starting at Ms. Rania Masri, and she makes a statement and it
17 goes to a tour of the hospital, ends with the children in that
18 hospital. We would stop it at that point because thereafter
19 are a group of, a selection of religious statements as to why
20 religious groups should oppose the United States actions which
21 we think is inappropriate for this trial.
22 MR. FITZGERALD: Judge, we would object on two
23 grounds. First, I think it's redundant of what he has already
24 in the 60 Minutes tape and the Clark testimony and has
25 disturbing pictures of children in a hospital. We were going
6984
1 to offer the Ramsey Clark and 60 Minutes tape we have the Bin
2 Laden statements. I think this is just more on top of the
3 same which --
4 THE COURT: Redundancy I think is not a very strong
5 objection in light of the nature of these proceedings. So if
6 the only objection is redundancy, why then I won't, but I'd
7 like to see it.
8 MR. BAUGH: Yes. From that point we would, we have a
9 tentative, I think we have an agreement, a stipulation that my
10 client on the date of offense was 21 years of age which of
11 course the government is required to prove, and also we have a
12 mitigator concerning his youth.
13 The next one would be a stipulation that we have
14 proposed, the United States has tentatively agreed to it, as
15 of ten o'clock last night on the phone, concerning my client's
16 indoctrination at an age to conservative Muslim teaching.
17 It's a four-part stipulation.
18 MR. FITZGERALD: We're not stipulating to
19 indoctrination. We're stipulating to what it is that
20 Mr. Al-'Owahli told Agent Gaudin on that topic.
21 MR. BAUGH: Thank you. The next one is up in the
22 air. There is an exhibit 1600T which was previously admitted
23 in evidence the same being a fatwa, a very lengthy fatwa from
24 Usama Bin Laden. Then there is a transcription of the --
25 THE COURT: But you're going to introduce that in
6985
1 evidence?
2 MR. BAUGH: I think we're going to reintroduce it.
3 For purposes of this proceeding we'll use the same numbers.
4 THE COURT: I think there are many, many copies of it
5 sitting on the cabinet in my robing room if you want to give
6 it to the jury.
7 MR. BAUGH: I can add it to the eight copies I have,
8 yes. Then there is a transcription of the ABC interview with
9 Usama Bin Laden. I have been told it has been introduced. I
10 know the tape was introduced. I don't know whether the
11 transcript was or not. We need to find the exhibit number but
12 we do have copies. Followed with another fatwa dated February
13 23, 1998 from the leader of the Islamic group published in Al
14 Queds.
15 THE COURT: Any objection to the fatwas?
16 MR. FITZGERALD: No, your Honor, I believe some of
17 them are in evidence already.
18 MR. BAUGH: We would then offer for reference, and of
19 course they can keep them if they'd like, these books --
20 THE COURT: No, they can't keep them if they like.
21 MR. BAUGH: Okay. We would offer this purely as
22 reference in its entirety. It is my position under 3593 that,
23 and also concerning Mr. Al Fadl's testimony, that to really
24 understand the efforts of Al Quaeda, also the efforts of my
25 client and his, and this is straight motivation, that there
6986
1 must be at least some understanding of the studiousness of the
2 religion of Islam. Theoretically I believe a witness could
3 get on the stand and read this in its entirety.
4 THE COURT: Well, in what court do you think the
5 Judge would permit a witness to read a 250 page book to the
6 jury? Not any court I'm aware of.
7 MR. BAUGH: In a case wherein, and this Court is well
8 aware of, and I, yes, I know I was, and I'll just repeat
9 myself, there are a lot of misconceptions about Islam.
10 THE COURT: But I asked you on Thursday whether you
11 were representing that the views expressed in that book
12 represent the views of your client and you answered in the
13 negative.
14 MR. BAUGH: Your Honor, I can tell the Court that, I
15 can tell the Court that this is -- excuse me.
16 (Pause)
17 MR. BAUGH: My client advised me of something which
18 I'm going to have to edit a bit because of some of his words
19 were incorrect. However, my client advises me that this book
20 is a fundamental or basic interpretation of Islam.
21 Now as you read the fatwas and other how shall we say
22 developments in the philosophy and theory behind it, there
23 would be some difference it might vary from country to country
24 or sect to sect but as a basic and fundamental outline the,
25 some of the things that I have read from this book he says
6987
1 they would suffice for basic understanding, and I can tell the
2 Court --
3 THE COURT: I had suggested to you earlier that it
4 would be very helpful and very much more productive, if I may,
5 venture that observation, if you were to highlight for the
6 jury in writing those passages or those pages or chapters that
7 you believe are particularly pertinent. If you tell them, I
8 ask that you read the book, this is a very conscientious jury,
9 they will read it 250 pages, and that probably will take three
10 to four days.
11 MR. BAUGH: First, I wouldn't ask them --
12 THE COURT: Mr. Cohn is quarreling by body motion to
13 the Court's estimate of the length of time it would take. But
14 how long do you think it takes to read a 254 page book
15 nonfiction?
16 MR. COHN: How long do I think it would take the
17 average person, or how long would it take me, and I think the
18 average person can finish that book in three or four hours.
19 MR. BAUGH: Yes, I agree.
20 MR. COHN: We're not requiring that they memorize the
21 book, although I'm sure there are people who would like me to,
22 but I don't think, I think that the Court's estimate is a
23 gross overestimate, your Honor. Yes, it would be some hours.
24 It might be as much as a full working day, although I doubt
25 it.
6988
1 THE COURT: I will require that there be some
2 statement as to the chapters or portions of the book which you
3 regard as being particularly pertinent.
4 MR. BAUGH: At this time, your Honor, I must make an
5 objection to the Court's --
6 THE COURT: I am not precluding you from asking the
7 jury to read the whole book. I am requiring that you
8 highlight for them those portions that you think are
9 particularly relevant. I haven't seen the book.
10 MR. BAUGH: Your Honor, I must object.
11 THE COURT: May I see the book?
12 MR. BAUGH: Yes. I must object to you putting words
13 in my mouth. I have never said, nor would I ever tell the
14 jury, you have to read this book, or, I want to you read this
15 whole book. You have been saying that now on three different
16 occasions and I have never made that statement. It's offered
17 as a --
18 THE COURT: What I have said is, yes, I have said
19 this is a conscientious jury, and if you tell them you want
20 them to read the book --
21 MR. BAUGH: Which I will not do.
22 THE COURT: Why are we arguing. If you give them the
23 book and you're not going to tell them to read the book, why
24 are you giving it to them?
25 MR. BAUGH: I'm offering this to them as a resource.
6989
1 If they have questions about the religion that they feel are
2 necessary for them to answer in order to determine the
3 existence of aggravators or mitigators or to weigh my client's
4 motivation or his intent. I can't put an Imam back there. I
5 can't call the Psychic Friends and figure out what their
6 questions would be. Therefore, I must take a rudimentary and
7 basic book and offer it to them for whatever assistance it
8 would give them.
9 I would submit that not one word in here, I mean
10 there are some things in here I don't particularly care for,
11 but that does not mean, this is a very popular book, it is a
12 best seller in Barnes & Nobels, probably because I bought 18
13 copies last week. It's helpful.
14 THE COURT: What's the government's position on this?
15 You have questionnaires written by all of these jurors. I
16 take it that you are carefully studying them and you have a
17 sense as to the ability to write English which has some
18 relationship to the ability to read English. There are
19 chapters here, for example, on Islamic diets. Are they
20 particularly relevant?
21 MR. BAUGH: To me, no, but I don't think you're going
22 to let me be on the jury. I can't imagine that that would be
23 relevant to anything. I can't.
24 THE COURT: I don't know how much time you want them
25 to read the chapter on womens rights. I suspect you don't
6990
1 want them to spend any time reading the chapter on womens
2 rights.
3 MR. BAUGH: You can't, well, I don't care whether.
4 MR. COHN: It's got to be a very short chapter.
5 MR. BAUGH: No, it's not. Actually, it's a very
6 involved chapter. Excuse me, your Honor, that shows the lack
7 of understanding of the religion.
8 I have always thought with my religion indoctrination
9 that it was a gender oppressive, and it's not, it's very
10 progressive. Now I should tell you that obviously when you
11 see what is happening in some countries, when you don't, when
12 you get at the rewrite, it gets enforced different but
13 according to what is cited in the Koran, Mohammed believed in
14 equal rights for women, contrary to what people may think,
15 according to this book.
16 THE COURT: You want go to the to the jury on that
17 issue?
18 MR. BAUGH: On what? No, I don't.
19 THE COURT: Now there is one chapter here called the
20 Pillars of Islam.
21 MR. BAUGH: That's a very important chapter I think.
22 THE COURT: That is the important chapter, isn't it?
23 MR. BAUGH: That's important.
24 THE COURT: Architecture, mosques and diets and so
25 on?
6991
1 MR. BAUGH: I can't believe that these people, if
2 they thought it was a waste of time, would read one more page.
3 I mean I don't want to cite your own words, but to quote the
4 Judge in this case, it's a very conscientious jury, and I
5 can't believe they are going to waste the Court's time or
6 their own time, and I'm sure I find it unimaginable that they
7 will say, boy, we've got to study this diet thing, but I can't
8 imagine that's going to happen. I don't see how it hurts, and
9 I don't, and but if somebody wants to read it, more power to
10 them.
11 MR. FITZGERALD: Judge, I think being a conscientious
12 jury if we give them a whole book there is some sort of
13 implicit representation that the whole book is worth drawing
14 attention to and they may sit down conscientiously and be led
15 astray into issues concerning diets that are not the core of
16 this case.
17 We would object, absent some guideposts indicating
18 that your attention is drawn to the following chapter or
19 chapters. I think that while it may be a couple of hundred
20 pages, it's also very detailed. I don't know how long it
21 would take someone to read through that. I wouldn't assume
22 that you can read through it rather quickly if you're trying
23 to determine what's relevant and retain it.
24 MR. BAUGH: Your Honor, I'm sorry, I didn't hear all
25 of that. But before we start this mitigation phase I should
6992
1 tell you we are going to slow down. I mean efficiency and
2 justice are not always conducive --
3 THE COURT: I'm not putting any time pressure on you.
4 I should say that because you made some comment yesterday that
5 last time you were before me that time is not the factor, and
6 I just want the record to be very clear the amount of time
7 that you propose for the presentation of your client's case is
8 dictated by you, that I have not imposed --
9 MR. BAUGH: Thank you.
10 THE COURT: -- any time restraints.
11 MR. BAUGH: Thank you. Advocacy does cause us to
12 have a concern about how much information we give the jury and
13 the form in which it is presented. As I told the jury before
14 it is our sincere belief that the videotape can save us
15 literally week of extremely boring testimony. The videotape,
16 that's why it's taking such a short period of time.
17 THE COURT: Is there is a paragraph here about jihad?
18 MR. BAUGH: Yes, there is.
19 THE COURT: You want them to read that. I don't
20 think it would be very difficult for you to identify the
21 particularly pertinent passages of the book that you wish them
22 to focus on, and I'll require that you do so. It doesn't
23 preclude their reading whatever they want. I'm very much
24 aware of the fact that this is not a trial and we're not
25 dealing with evidence. We're dealing with information. It's
6993
1 a new experience for me in any event.
2 MR. BAUGH: Also, in doing this presentation and
3 because our charging conference is at 4:30 I was assuming
4 perhaps, that it was the Court's intention that we would close
5 tomorrow, and give the case to the jury tomorrow; that we'd
6 close, charge the jury, give it to them tomorrow. We would
7 have a day -- unless the government has rebuttal.
8 THE COURT: We ended up with the book, and I will
9 allow it, and accompanied by a statement.
10 MR. BAUGH: I could prepare a written something to
11 hook on this book if you'd like me to.
12 THE COURT: I think it would be so much more helpful
13 to everyone if you did that.
14 MR. BAUGH: I think that is a rational compliment and
15 I would agree. Lastly, your Honor, the last item is the BBC
16 tape. It's the BBC documentary. It has to do with how the
17 development of Usama Bin Laden, and if you'll bear with me for
18 two minutes, the tape summarizes how with the advent of the
19 Soviet invasion of Afghanistan and the United States support
20 of the mujahideen freedom fighters, and that Usama Bin Laden
21 and people like him went to Afghanistan and fought. Nobody
22 ever really thought they were going to win. When they did,
23 suddenly in the Arab world there was this idea that
24 superpowers aren't superpowers anymore, and that is what has
25 led, that is a part of this case, and there is some discussion
6994
1 about that in there.
2 THE COURT: Has the government seen that tape?
3 MR. FITZGERALD: Yes. We have no objection.
4 THE COURT: It has no objection to this.
5 MR. BAUGH: Okay.
6 THE COURT: That's it?
7 MR. BAUGH: Subject to the government's rebuttal.
8 THE COURT: Does the government, assuming this is the
9 nature of the defendant's presentation, and of course you
10 haven't heard Clark's testimony, does the government
11 contemplate a rebuttal?
12 MR. FITZGERALD: Putting aside the issue of what is
13 responsive to Mr. Clark's testimony a brief rebuttal
14 contemplated at the moment would be trying to fashion a
15 stipulation in response to the offer of the Code of Federal
16 Regulations to show that while any administrative measures are
17 required --
18 MR. BAUGH: We're objecting to that.
19 THE COURT: Objecting to the --
20 MR. BAUGH: We are objecting to the, it is our
21 position that the Code of Federal Regulations merely states
22 that the government has the power to draft or create whatever
23 conditions of confinement they wish. Whether or not they've
24 done it, I think is irrelevant. To come in and say, we've
25 done this condition and we've had trouble with other inmates,
6995
1 we've done this condition, I mean unless you lock them up like
2 Hannibal Lector, there is always a possibility something could
3 happen. They can argue that.
4 But I don't believe that showing the Code of Federal
5 Regulations and showing that the government has to craft
6 conditions of confinement automatically trigger admission of
7 the SAM and the fact that in the past under certain SAMs there
8 have been incidents between inmates and inmates or somebody.
9 The government has sent over I think it was eighty pounds of
10 documents yesterday, that we've got through believe it or not
11 and there was stuff from ADMAX showing that some guard got
12 spit on or somebody through a carton of milk at somebody and
13 the overwhelming majority of these incidents are like that,
14 there is some inmate on inmate conduct when inmates are
15 allowed out in the yard together.
16 There are very few incidents where security or
17 corrections people have been directly assaulted, very few, but
18 even then there is no indication as to the level of
19 confinement that was being imposed when that person made their
20 attack. For that reason we say it's irrelevant and we tend to
21 confuse under 3593 --
22 MR. FITZGERALD: Your Honor, on the assumption that
23 Mr. Baugh is only offering evidence as to the special
24 administrative measures, and not this particular facilities
25 I've advised him the eighty pounds or whatever would not be
6996
1 offered. Out of the one hundred thousand inmates in the
2 Bureau of Prison system or however many inmates there are, I
3 believe at the current time there are approximately 13 inmates
4 under the special administrative measures due to terrorism
5 conduct and two of them carried out a serious assault. So to
6 put before the jury that there are special administrative
7 measures and argue to them that that would prevent him from
8 being violent in fairness requires a response that even when
9 you select the very few of the hundred thousand inmates or so
10 under the system, put them under the measures, people still
11 get hurt.
12 THE COURT: I think the jury is entitled to know not
13 only the theoretical, but the practical consequences of
14 confinement and actual experience, and I will allow a brief
15 rebuttal along these lines.
16 MR. BAUGH: When we get to that phase, could I ask
17 the Court at this time for a limiting direction that when we
18 get to that's the United States proffer to the Court and to
19 the defense what it plans to offer in more detail before the
20 Court makes its final ruling?
21 MR. FITZGERALD: What we always discussed to avoid
22 getting into the details of the November 1st assault was to
23 try to put it in by stipulation.
24 MR. BAUGH: Very well, your Honor, that will be fine.
25 MR. COHN: Your Honor may I, since I have to be first
6997
1 on this, and since the government and I are still working on a
2 stipulation, the government has just given me the complaint
3 against Eidarous. It's lengthy. I have prepared a redacted
4 version that I want to run by the government, so I'd like to
5 leave that out of the initial presentation.
6 THE COURT: How long does the government estimate
7 it's closing to take?
8 MR. GARCIA: Two hours, Judge, but likely take less.
9 MR. BAUGH: Two hours, your Honor. Make it three
10 hours and likely will take less.
11 THE COURT: The government's rebuttal?
12 MR. FITZGERALD: One hour. Let's say and hour and a
13 half but likely to take less.
14 THE COURT: Go to the jury Wednesday afternoon or
15 Thursday morning?
16 MR. BAUGH: I would say Wednesday.
17 THE COURT: You're talking about an hour's tape
18 playing.
19 MR. BAUGH: Honor, if I play all my tapes and put in
20 most of these exhibits I have, I'm reasonably sure we're going
21 to finish. I mean I'm trying. There is one other issue, your
22 Honor, I did want to revisit, and that is whether or not the
23 government can come comment on the defendant's silence as
24 evidence of remorse. We discussed that.
25 MR. GARCIA: We're not going do that.
6998
1 MR. BAUGH: That's fine, no problem.
2 THE COURT: Since you mentioned it, you know there is
3 a bracketed paragraph in the charge dealing with the
4 defendant's right not to testify which specifically relates to
5 its application to the issue of remorse and I put it in to
6 focus discussion. You may very well think that it's
7 counterproductive to say the jury not specifically don't
8 consider the defendant's silence when you consider remorse and
9 would want that paragraph deleted, but you can tell me that at
10 4:30.
11 MR. BAUGH: Being that you brought it up first, I
12 think the Court and the clerk have done a great job with
13 preparing this. I think the Court should consider changing
14 the word should to cannot in any way bear on your
15 deliberation, I think it should be.
16 THE COURT: But subject to that, you want that
17 paragraph in there?
18 MR. BAUGH: Yes, sir, I do. This is a very
19 conscientious jury. Did it again.
20 THE COURT: Anything else? All right. Well, pending
21 the arrival of the jury I would like to start looking at the
22 64 minute tape. I can see half of it.
23 MR. FITZGERALD: Judge, the other day we reserved two
24 things out of the presence of the jury. One was the
25 stipulation on age which I think defendant al-'Owahli wants to
6999
1 put in on his case is fine. And, secondly, there is a set of
2 photographs, I think four to five photographs which your Honor
3 had ruled were admissible, but we did not put in through a
4 witness, put the numbers on the record and then the set of
5 photographs to which Mr. Baugh may reference in his opening
6 which is a set of photographs or names of the deceased
7 victims. We can offer them now and they can start with the
8 defense case.
9 THE COURT: You want to offer them in the absence of
10 the jury?
11 MR. FITZGERALD: We can offer them at the very
12 beginning then and then we'll be completed.
13 THE COURT: All right. The jury is here. Why don't
14 we begin.
15 (Recess)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
7000
1 (In open court)
2 THE COURT: I don't remember whether I told you that
3 sometime midday you should get another revision of the
4 proposed charge. The principal changes relate to the
5 references to the statutes, and the government has indicated
6 that it is not seeking incorporation by reference of Section
7 (i) of --
8 MR. FITZGERALD: 844.
9 THE COURT: -- of 844. So we'll leave that. You
10 should have that midday.
11 We're in agreement that we're not sitting Friday even
12 if the jury is deliberating?
13 MR. COHN: I'm sorry. They are not sitting even if
14 we're deliberating?
15 THE COURT: I thought that was what the request was.
16 MR. COHN: I thought that, too. Here's the question.
17 I have been confused on that issue today.
18 THE COURT: Excuse me?
19 MR. COHN: And remain confused. I said I've been
20 confused on that issue today and remain confused. I did raise
21 it because I thought the Court had said we weren't. It is not
22 a request of mine, at any rate.
23 THE COURT: Let's discuss it at the midmorning break.
24 On June 11th we're going to adjourn at 3:00, and this
25 Wednesday we're going to adjourn at 3:00. The request for
7001
1 this early adjournment indicates how conscientious the jury
2 is. This one is "to attend a closing of a sale of my deceased
3 mother's apartment." These are not things that the jurors can
4 easily postpone.
5 What is the view? It seems the jury will be
6 deliberating. Do you want to sit on Friday or not sit on
7 Friday?
8 MR. BAUGH: Not really.
9 MR. FITZGERALD: We would prefer the jury just
10 proceed and deliberate. It's not extraordinary to sit during
11 the week and rather than shut down for Friday, Saturday,
12 Sunday and resume again on Monday.
13 THE COURT: You wish to sit on Friday?
14 MR. FITZGERALD: Yes. I think it's not unusual.
15 Many jurors sit over weekends to sit during weekdays.
16 THE COURT: I'm going to tell them they will sit on
17 Friday and we will adjourn at 3:00 on Wednesday and on Monday.
18 (Jury present)
19 THE COURT: Good morning.
20 THE JURY: Good morning.
21 THE COURT: Just some logistical matters. This
22 Wednesday we will adjourn at 3:00 to accommodate the request
23 of a juror. Based on what the attorneys tell me, the
24 probability is that this case will be fully submitted before
25 you for deliberations by the end of this week, and we will sit
7002
1 this Friday. We will sit this Friday.
2 You can't sit this Friday?
3 A JUROR: No, I cannot.
4 THE COURT: We will not sit this Friday.
5 And next Monday, the 11th, we will adjourn at 3:00
6 also.
7 All right. Mr. Fitzgerald.
8 MR. FITZGERALD: Yes, Judge. The government is just
9 offering for the record six exhibits, which are Government
10 Exhibits 2002, which is a set of pages through page 214, and
11 the following photographs: Government Exhibits 2255, 2256,
12 2259, 2270 and 2272.
13 MR. COHN: Subject to the prior rulings of the court,
14 your Honor.
15 THE COURT: Yes, received.
16 MR. FITZGERALD: I'm sorry. I think it's 2259. I'm
17 sorry, 2269 not 2259. I apologize.
18 THE COURT: Let's start again.
19 MR. FITZGERALD: 2255, 2256, 2269, 2270 and 2272 are
20 the photographs and the other exhibit was 2002.
21 THE COURT: Received.
22 (Government Exhibits 2002, 2255, 2256, 2269, 2270 and
23 2272 received in evidence)
24 MR. FITZGERALD: Thank you, Judge.
25 THE COURT: And the government rests?
7003
1 MR. FITZGERALD: Yes, subject to that other
2 stipulation which will be read during the defense case.
3 MR. COHN: May I proceed, your Honor?
4 THE COURT: So we are now in the defense case on
5 behalf of defendant Al-'Owhali.
6 Yes, you may.
7 MR. COHN: Your Honor, with the permission of the
8 Court, I intend to merely at this section remind the jury of
9 sections of trial transcript where testimony as to Mr. Odeh
10 and Mr. Salim were mentioned in the main trial. May I do
11 that?
12 THE COURT: Yes.
13 MR. COHN: Thank you.
14 Odeh in regard to his role in the offense is
15 mentioned at page 1135, lines 5 through 25; page 1136, lines 1
16 through 25; page 1137, line 1 through 22; 1158, line 25 going
17 over through 1159, 1160, 1161, to line 12; page 1182, lines 19
18 to 25; page 1183 in its entirety; page 1277, lines 8 through
19 25 and page 1278, lines 1 through 17; page 1624, line 9
20 through 25; page 1631, line 1 through 25 going over to page
21 1632 through line 5; page 1643, line 20 to 25, and 1644, 1645,
22 1646 through line 11; page 1651, line 14 through 25, going
23 over to page 1652 through line 13; page 1657, line 10 through
24 25, and then going on through line 13, 1658; 1660, line 21 to
25 25, and over onto 1661 through line 10; 1665, line 10 through
7004
1 25; on page 1666, starting on line 25 and going over -- I'm
2 sorry, that's all. On page 1675, line 1 through 25, which
3 goes over to line 1 on page 1676.
4 As to Salim, the trial transcript mentioning Salim in
5 his role in the offense is page 205, line 6 through 12; 210,
6 line 7 through 14; page 241, line 6 through 14; page 256, line
7 17 through 25 going over to 257 through line 4; page 259,
8 lines 24 and 25; page 260, lines 1 through 3; page 265, lines
9 2 through 25, going over on page 266 through line 12; page
10 267, lines 11 through 22; page 269, lines 12 through 25; page
11 270, lines 1 through 14; page 291, lines 16 through 25, going
12 over to 292 and 293 to line 10; page 308, line 6 to 15; page
13 332, line 17 through 25, going over to page 333 through line
14 17; page 571, line 6 through 25, and then going over to 572
15 through line 4; page 573, lines 21 through 25, going over to
16 574 through line 14; page 1535, line 13 through 25, going
17 through 1536, and page 1537 to line 3; page 1542, line 22
18 through 25, going over to 1543 through line 6.
19 THE COURT: Is that all?
20 MR. COHN: Yes. Your Honor, at this point I would
21 like to read from extracts made in allegations of the
22 indictment which was in a prior form at the time, and this is
23 our Exhibit Al-'Owhali P.
24 May I?
25 THE COURT: Yes.
7005
1 MR. COHN: Thank you. In triple T -- this is as to
2 Mr. Odeh -- it says:
3 "In or about April 1998, the defendant Mohamed Sadeek
4 Odeh discussed the fatwah issued by Bin Laden and al Qaeda
5 against American with Mustafa Mohamed Fadhil in Kenya."
6 In quintuple H, that's five Hs, it says: "On or
7 about August 2, 1998" -- and these are on the screen -- "the
8 defendants Mohamed Sadeek Odeh and Fazul Abdullah Mohammed,
9 together with other members of al Qaeda, met at the Hilltop
10 Hotel in Nairobi, Kenya."
11 Your Honor, at this time, as Exhibit Al-'Owhali Q, we
12 offer extracts of allegations made by the government in a
13 prior form of this indictment regarding Mamdouh Salim.
14 THE COURT: Yes.
15 MR. COHN: "Al Qaeda had a command and control
16 structure which included a majlis al shura -- pardon my
17 pronunciation -- (or consultation council) which discussed and
18 approved major undertakings, including terrorist operations.
19 The defendants Usama Bin Laden, Muhammad Atef, a/k/a Abu Hafs,
20 Ayman al Zawahiri and Mamdouh Mahmud Salim, a/k/a Abu Hajer,
21 among others, sat on the majlis al shura (or consultation
22 council) of al Qaeda. Egyptian Islamic Jihad had a Founding
23 Council, on which the defendant Ibrahim Eidarous sat.
24 "a. At various times from at least as early as 1989,
25 the defendant Usama Bin Laden, and others known and unknown,
7006
1 provided training camps and guesthouses in various areas,
2 including Afghanistan, Pakistan, the Sudan, Somalia and Kenya
3 for the use of al Qaeda and its affiliated groups. The
4 defendant Mamdouh Mahmud Salim managed some of these training
5 camps and guesthouses in Afghanistan and Pakistan.
6 "d. At various times from at least as early as 1989
7 until the date of the filing of this indictment, the
8 defendants Usama Bin Laden and Mamdouh Mahmud Salim, and
9 others known and unknown to the Grand Jury, engaged in
10 financial and business transactions on behalf of al Qaeda,
11 including, but not limited to: Purchasing land for training
12 camps; purchasing warehouses or storage of items, including
13 explosives, purchasing communications and electronics
14 equipment; transferring funds between corporate accounts; and
15 transporting currency and weapons to members of al Qaeda and
16 its associated terrorist organizations in various countries
17 throughout the world. To carry out some of these
18 transactions, the defendant Mamdouh Mahmud Salim traveled to
19 various places on behalf of al Qaeda and its affiliated
20 groups, including, to Malaysia, China, the Philippines and
21 Germany.
22 "f. Following al Qaeda's move to the Sudan in or
23 about 1991, the defendant Usama Bin Laden established a
24 headquarters in the Riyadh section of Khartoum. Usama Bin
25 Laden also established a series of businesses in the Sudan,
7007
1 including a holding company known as Wadi al Aqiq, a
2 construction business known as al Hijra, an agricultural
3 company known as al Themar al Mubaraka, an investment company
4 known as Ladin International, an investment company known as
5 Taba Investments, a leather company known as Khartoum Tannery,
6 and a transportation company known as Qudarat Transport
7 Company. These companies were operated to provide income to
8 support al Qaeda and to provide cover for the procurement of
9 explosives, weapons and chemicals and for the travel of al
10 Qaeda operatives. The defendants Mamdouh Mahmud Salim and
11 Wadih El Hage worked for various of the Bin Laden companies.
12 The defendant Wadih El Hage also served as Bin Laden's
13 personal secretary.
14 "i. At various times between in or about 1992 and in
15 or about 1996, the defendants Usama Bin Laden, Mamdouh Salim,
16 and other ranking members of al Qaeda, stated privately to
17 others of al Qaeda that al Qaeda should put aside its
18 differences with Shiite Muslim terrorist organizations,
19 including the government of Iran and its affiliated terrorist
20 group Hizballah, to cooperate against the perceived common
21 enemy, the United States, and its allies."
22 And finally: "j. At various times between in or
23 about 1992 and in or about 1996, the defendant Mamdouh Mahmud
24 Salim met with an Iranian religious official in Khartoum as
25 part of an overall effort to arrange a tripartite agreement
7008
1 between al Qaeda, the National Islamic Front of Sudan, and
2 elements of the government of Iran to work together against
3 the United States, Israel, and other Western countries."
4 Your Honor, at this time we offer as Exhibit
5 Al-'Owhali O1, a redacted version -- excuse me, I just got
6 corrected. It wasn't "finally" at all.
7 Going back, your Honor, to Al-'Owhali Q continues:
8 "k. At various times between in or about 1992 and
9 1996, the defendant Mamdouh Mahmud Salim worked together with
10 a ranking official of the National Islamic Front to obtain
11 communications equipment on behalf of the Sudanese
12 intelligence service.
13 "n. On various occasions in or about 1993, the
14 defendant Mamdouh Mahmud Salim lectured al Qaeda members that
15 the United States forces do not belong on any Arab lands, and
16 that the presence of the United Nations forces in Somalia was
17 a reflection of the United States' plans to attack the Muslim
18 world.
19 "aa. On various occasions the defendant Mamdouh
20 Mahmud Salim advised other members of al Qaeda that it was
21 Islamically proper to engage in violent actions against
22 'infidels' (nonbelievers), even if others might be killed by
23 such actions, because if the others were 'innocent,' they
24 would go to paradise, and if they were not 'innocent,' they
25 deserved to die."
7009
1 And what looks to me like Q six times, or sextuple Q,
2 "On or about September 16, 17, 18, 21, 23, 24, 25, and 28, in
3 Munich, Germany, the defendant Mamdouh Mahmud Salim made false
4 statements to German law enforcement officials conducting an
5 investigation of al Qaeda activity in Germany."
6 Now, your Honor, I offer as Al-'Owhali O1 a redacted
7 version of the criminal complaint against Khalid al Fawwaz,
8 and I will read in pertinent part from it, with the permission
9 of the Court.
10 THE COURT: Yes, granted. Received and granted.
11 (Defendant al-'Owhali Exhibit O1 received in
12 evidence)
13 MR. COHN: This has a caption over which shows it was
14 approved by Mr. Fitzgerald, Mr. Karas, and it's the affidavit
15 of Daniel J. Coleman, who is an FBI agent.
16 "From in or about 1992 through the date of the filing
17 of this complaint, outside the United States and outside the
18 jurisdiction of any particular state or district, Khalid al
19 Fawwaz, the defendant, together with Usama Bin Laden, and
20 others known and unknown, unlawfully, willfully, and knowingly
21 combined, conspired, confederated and agreed together and with
22 each other to kill nationals of the United States, including
23 nationals of the United States while such nationals were
24 outside the United States.
25 "2. In furtherance of the conspiracy and to effect
7010
1 the object thereof, the defendant and others committed the
2 following overt acts, among others:
3 "a. At various times from at least as early as 1990,
4 Khalid al-Fawwaz, the defendant, met with members and
5 associates of a terrorist group known as al Qaeda in
6 Afghanistan, the Sudan and elsewhere;
7 "c. At various times from at least as early as 1994,
8 Khalid al-Fawwaz headed an organization called the 'Advice and
9 Reformation Committee,' created by Usama Bin Laden;
10 "d. At various times from at least as early as 1994,
11 Khalid al Fawwaz delivered messages on behalf of Usama Bin
12 Laden and others associated with al Qaeda;
13 "g. Beginning in or about early spring 1993, al
14 Qaeda members (using Kenya as a base for logistical support)
15 began to provide training and assistance to Somali tribes
16 opposed to the United Nations' intervention in Somalia.
17 "h. In or about August 1996, Khalid al-Fawwaz
18 transmitted a statement from Usama Bin Laden stating publicly
19 that the United States' forces stationed on the Saudi Arabian
20 Peninsula should be attacked.
21 "Count Two: Solicitation of Murder.
22 "3. From in or about 1992 until in or about August
23 1993, in places outside the jurisdiction of any particular
24 state or district, Khalid al-Fawwaz, with the intent that
25 other persons engage in conduct constituting felonies that
7011
1 have as elements the use, attempted use, or threatened use of
2 physical force against property or against the person of
3 another in violation of the laws of the United States, and
4 under circumstances strongly corroborative of that intent,
5 solicited, commanded, induced and otherwise endeavored to
6 persuade such other persons to engage in such conduct, to wit,
7 Khalid al-Fawwaz solicited, commanded, induced and otherwise
8 endeavored to persuade Muslim males throughout the world, and
9 particularly those in Saudi Arabia and those belonging to al
10 Qaeda, to:
11 "(a) injure and destroy, and attempt to injure
12 and" --
13 I'm sorry. Something seems to have been left out,
14 your Honor. We'll have to provide that.
15 "c. Khalid al Fawwaz --
16 Yes, "intent to injure, interfere with, and obstruct
17 the national defense of the United States," in violation of a
18 statute which is mentioned.
19 "c. Khalid al-Fawwaz has been closely associated
20 with Bin Laden and other leaders of al Qaeda. CS-1 understood
21 that Khalid al Fawwaz made bayat (the pledge of allegiance) to
22 al Qaeda and Bin Laden, and that Khalid al-Fawwaz was
23 prominent among the members and associates of al Qaeda,
24 including Bin Laden. Indeed, in or around 1993 or 1994,
25 Khalid al-Fawwaz attended meetings of the leaders of al Qaeda
7012
1 which took place in Khartoum, Sudan.
2 "d. Usama Bin Laden created an organization in
3 London, England, called the 'Advice and Reformation
4 Committee,' and placed Khalid al-Fawwaz in charge as its
5 leader.
6 "e. While in London, Khalid al-Fawwaz acted to
7 facilitate the delivery of certain orders and messages on
8 behalf of Usama Bin Laden. By way of example, Khalid
9 al-Fawwaz received and transferred fatwahs (religious orders)
10 and other messages transmitted by facsimile from Usama Bin
11 Laden and other al Qaeda members in Khartoum, Sudan to London,
12 England.
13 "5. A confidential source (CS-1) who was a member of
14 the al Qaeda organization for a number of years and was
15 familiar with Khalid al-Fawwaz and Usama Bin Laden, has
16 admitted to participating in terrorist activity against
17 American interests and advised the following:
18 "7. On or about August 23, 1996, Usama Bin Laden
19 signed and issued a declaration of Jihad entitled 'Message
20 from Usama Bin Laden to his Muslim Brothers in the Whole World
21 and Especially in the Arabian Peninsula: Declaration of Jihad
22 against Americans occupying the land of the Two Holy Mosques;
23 Expel the heretics from the Arabian Peninsula' from the Hindu
24 Kush mountains in Afghanistan. The declaration included
25 statements that efforts should be pooled to kill Americans and
7013
1 encouraged other persons to join the Jihad against the
2 American enemy.
3 "11. I have reviewed a report seized from a computer
4 found in the residence of Wadih El Hage in Nairobi, Kenya.
5 The report appears to have been written in 1997 by Harun
6 Fazhl, a fugitive member of al Qaeda who has been charged with
7 the August 7, 1998 bombing of the American Embassy in Nairobi,
8 Kenya. The report discussed the fact that a top Bin Laden
9 operative had been arrested and was believed to be cooperating
10 with Saudi, British and American authorities. The author
11 states that he is concerned that the people in Kenya will be
12 under scrutiny because it is common knowledge that it was the
13 members of Bin Laden's cell in Kenya who were responsible for
14 killing the Americans troops in Somalia. The report states
15 that:
16 "'On the same day we heard the news, the partisans
17 from Mombasa called. I told them I will get in touch with
18 them and asked them never to call me at that number again ...
19 After two days they called me back at the same number so I
20 forced them to burn that number immediately and informed
21 Khalid that I had prohibited them from calling me here as I am
22 100 dread percent sure that the telephone is tapped.'
23 "In addition, the author of the report noted that he
24 'collected all the files which we do not need here and which
25 might pose a threat against us and have placed them in another
7014
1 location. We did not burn them since they belong to the
2 engineer Abd al Sabbur.' From the context of the report, it
3 appears that the report was written while Abd al Sabbur was in
4 Afghanistan visiting Usama Bin Laden. The author further
5 states that the report was not written 'until I (Harun Fazhl)
6 was officially asked by brother Khalid to be responsible for
7 the media information office for the cell in Nairobi. He
8 (Khalid) asked me also to write periodically about the
9 security situation in the cell and the whole group in here in
10 general in East Africa.'"
11 Finally, your Honor, we have included the signature
12 and as sworn before the magistrate judge of Daniel Coleman.
13 THE COURT: Very well.
14 MR. COHN: Your Honor, may I be excused?
15 THE COURT: Yes.
16 MR. COHN: Thank you.
17 MR. BAUGH: Your Honor, at this time on behalf of
18 defendant Al-'Owhali we would offer Government Exhibit -- I'm
19 sorry, Defendant's Exhibit R, same being the Code of Federal
20 Regulations, Part 501, which has not been previously
21 identified. I believe we tendered copies already to the
22 government, and I would ask Ms. Brown if you could put up page
23 2, Section 501.3. If you get in focus, the section says:
24 "Upon direction of the Attorney General" -- I'm
25 sorry. "Prevention of Acts of Violence and Terrorism.
7015
1 "Upon direction of the Attorney General, the
2 Director, Bureau of Prisons, may authorize the Warden to
3 implement special administrative measures that are reasonably
4 necessary to protect persons against the risk of death or
5 serious bodily injury. These procedures may be implemented
6 upon written notification to the Director, Bureau of Prisons,
7 by the Attorney General or, at the Attorney General's
8 direction, by the head of a federal law enforcement agency, or
9 the head of a member agency of the United States intelligence
10 community, that there is a substantial risk that a prisoner's
11 communications or contacts with persons could result in death
12 or serious bodily injury to persons, or substantial damage to
13 property that would entail the risk of death or serious bodily
14 injury to persons. These special administrative measures
15 ordinarily may include housing the inmate in administrative
16 detention and/or limiting certain privileges, including, but
17 not limited to, correspondence, visiting, interviews with
18 representatives of the news media, and use of the telephone,
19 as is reasonably necessary to protect persons against the risk
20 of acts of violence or terrorism. The authority of the
21 director under this paragraph may not be delegated below the
22 level of acting director.
23 "(b) Designated staff shall provide to the affected
24 inmate, as soon as practicable, written notification of the
25 restrictions imposed and the basis for these restrictions.
7016
1 The notice's statement as to the basis may be limited in the
2 interest of prison security or safety or to protect against
3 acts of violence or terrorism. The inmate shall sign for and
4 receive a copy of the notification.
5 "(c) Initial placement of an inmate in administrative
6 detention and/or any limitation of the inmate's privileges in
7 accordance with paragraph (a) of this section may be imposed
8 for up to 120 days. Special restrictions imposed in
9 accordance with paragraph (a) of this section may be extended
10 thereafter by the Director, Bureau of Prisons, in 120-day
11 increments upon receipt by the director of additional written
12 notification from the Attorney General, or, at the Attorney
13 General's direction, from the head of a federal law
14 enforcement agency or the head of a member agency of the
15 United States intelligence community, that the circumstances
16 identified in the original notification continue to exist.
17 The authority of the Director under this paragraph may not be
18 delegated below the level of acting director.
19 "(d) the affected inmate may seek review of any
20 special restrictions imposed in accordance with paragraph (a)
21 of this section through the Administrative Remedy Act, 28
22 C.F.R. part 542."
23 We would offer it at this time.
24 THE COURT: Yes, received.
25 (Defendant al-'Owhali Exhibit R received in evidence)
7017
1 MR. BAUGH: We would next offer the videotape of "60
2 Minutes," Exhibit S, as in Sam.
3 THE COURT: Received.
4 (Defendant al-'Owhali Exhibit S received in evidence)
5 (Videotape played)
6 (Continued on next page)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7018
1 MR. BAUGH: We've offered it and it has been
2 accepted.
3 THE COURT: Yes, proceed.
4 MR. BAUGH: Thank you, your Honor. I'd like to jump
5 out of sequence for just a second.
6 THE COURT: Just for the record that was 1996.
7 MR. BAUGH: May 12, 1996.
8 THE COURT: Yes.
9 MR. BAUGH: At this juncture, your Honor, we would
10 like to go to the defense, we would offer defendant
11 al-'Owahli's exhibit T, the same being a Defense Intelligence
12 Agency declassified memo dated January 1991.
13 THE COURT: That's previously been marked Court
14 Exhibit G and it's now Defendant al-'Owhali's T and it is
15 received.
16 (Defendant's al-'Owhali Exhibit T received in
17 evidence)
18 MR. BAUGH: This document which I will, as soon as I
19 find my marked-up copy, I will read from.
20 If you go to page 1, paragraph 3, if you can get it
21 up. Could you highlight the third paragraph, please. From
22 the Defense Intelligence Agency. I'm sorry, before do you
23 that, could you show the whole page again so we can see the
24 top of the page. Highlight the top of the page, please.
25 Thank you.
7019
1 DIA's declassified Iraq water treatment as a
2 vulnerability. Paragraph 1, please.
3 Iraq depends on importing specialized equipment and
4 some chemicals to purify its water supply, most of which is
5 heavily mineralized, and frequently brackish to saline.
6 I'll read from paragraph 3. Failing to secure
7 supplies will result in a shortage of pure drinking water for
8 much of the population. This could lead to increased
9 incidence, if not epidemics, of disease and to certain pure
10 water dependent industries becoming incapacitated, including
11 petrochemicals, fertilizers, petroleum refining, electronics,
12 pharmecuticals, food processing, textiles, concrete,
13 construction and thermal power plants.
14 Could I have the last line, there, Iraq's overall
15 water treatment capability will suffer a slow decline.
16 Could I have the next page, please. Top paragraph.
17 Although Iraq is already experiencing a loss of water
18 treatment capability it probably will take at least six months
19 to June, 1991 before the system is fully degraded. Unless
20 water treatment supplies are exempted from the UN sanctions
21 for humanitarian reasons, no adequate solution exists for
22 Iraq's water purification dilemma since no suitable
23 alternatives, including looting supplies from Kuwait
24 sufficiently meet Iraqui needs.
25 If I could have the next page, please, page 3, the
7020
1 last line. Iraq's rivers also contain biological materials,
2 pollutants and -- I'm sorry, the last part of paragraph, the
3 top of the page. Could you highlight that, please.
4 I missed paragraph 11. That's paragraph 12. I need
5 the paragraph before that. Paragraph 11. The bottom
6 paragraph there.
7 Biological materials, pollutants and are laden with
8 bacteria unless the water is purefied with epidemics of such
9 diseases as cholera, hepatitis and typhoid could occur.
10 Could I have page 5, please, page 6, forgive me.
11 Page 6, paragraph 19. I'm reading from the middle of the, in
12 the petrochemical industry, water used for cooling is
13 partially treated to prevent scaling. Water used in thermal
14 power plants or refineries to produce steam must be pure to
15 prevent corrosion and scaling otherwise loss of capability
16 could occur within two months.
17 In addition, food processing, electronic and
18 particularly pharmaceutical plants require extremely pure
19 water that is free from biological contaminants. Large
20 industrial plants, including petrochemical, refining and
21 fertilizer plants, collocate their water treatment facilities.
22 Turnkey contractors built these facilities, and the parts are
23 specific to each system which complicates their replacement.
24 The Iraqis could not manufacture duplicates and their
25 importation is embargoed.
7021
1 Could I have paragraph 20, please.
2 Iraqi alternatives. Iraq could try convincing the
3 United Nations or individual countries to exempt water
4 treatment supplies from sanctions for humanitarian reasons.
5 It probably also is attempting to purchase supplies by using
6 some sympathetic countries as fronts. If such attempts fail,
7 Iraqi alternatives are not adequate for their national
8 requirements.
9 And then if you could go to page 8, paragraph 27.
10 Iraq will suffer increasing shortages of purified
11 water because of the lack of required chemicals and
12 desalinization membranes. Incidences of disease, including
13 possible epidemics will become probable unless the population
14 were careful to boil water before consumption, particularly
15 since the sewage treatment system, never a high priority, will
16 suffer the same loss of capability with the lack of chlorine,
17 locally produced food and medicine could be contaminated. The
18 last line of the sheet, please.
19 The last four or five lines of paragraph 28. Thank
20 you.
21 Consequently, Iraqi probably is using untreated or
22 partially treated water in some locations full degradation of
23 the water treatment system probably will take at least another
24 six months. Thank you. You can take it off.
25 Next, your Honor, we would offer Al-'Owahli U, the
7022
1 same being protocol one, additional to the Geneva Convention's
2 1977.
3 THE COURT: Received.
4 (Defendant's Al-'Owahli Exhibit U received in
5 evidence)
6 MR. BAUGH: I would ask Ms. Campon to go to the third
7 page, article 54. Article 54: Protections of objects
8 indispensable to the survival of the civilian population.
9 1. Starvation of civilians as a method of warfare is
10 prohibited.
11 2. It is prohibited to attack, destroy, remove or
12 render useless objects dispensable at the survival of the
13 civilian population, such as food stuffs, agricultural areas
14 for the production of food stuffs, crops, livestock, drinking
15 water installations, and supplies and irrigation works, for
16 the specific purpose of denying them for their sustenance
17 value to the civilian population or to the adverse party
18 whatever the motive, whether in order to starve out civilians,
19 to cause them to move away or for any other motive.
20 3. The prohibitions in paragraph 2 shall not apply
21 to such of the objects covered by it as used by adverse party,
22 a, as sustenance solely for members of its armed forces, or,
23 b, if not as sustenance, then in direct support of military
24 action provided, however, that in no event shall actions
25 against these objects be taken which may be expected to leave
7023
1 the civilian population with such inadequate food or water as
2 to cause its starvation or force its movement.
3 4. These objects shall not be made the object of
4 reprisals.
5 5. In recognition of the vital requirement of any
6 party to the conflict in the defense of its national territory
7 against invasion, derogation from the prohibitions contained
8 in paragraph 2, may be made by a party to the conflict within
9 such territory under its own control where required by
10 imperative military necessity.
11 Thank you.
12 We would next call as our witness attorney Ramsey
13 Clark.
14 While the witness is being brought up, your Honor, I
15 want to hand the clerk we just read from protocol 1 additional
16 to the Geneva Convention, 1977, part 4 civilian population.
17 RAMSEY CLARK,
18 called as a witness by the defendant,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. BAUGH:
22 Q. Mr. Clark, this is a large room and the acoustics are kind
23 of bad. So I would ask you that you keep your voice up and
24 speak to the last person over there if possible.
25 Sir, how are you employed?
7024
1 A. I'm a lawyer.
2 Q. And where do you practice?
3 A. Well, my office is here in New York, but I practice all
4 around.
5 Q. You practice where?
6 A. All around, lots of places.
7 Q. And your practice also includes international
8 representations?
9 A. Yes.
10 Q. How long have you been an attorney?
11 A. 50 years this month.
12 Q. And in your employment as an attorney what sort of
13 positions have you held?
14 A. Well, mainly I've just been a private lawyer. I've held
15 government positions and I've held positions in organizations
16 dealing with human rights, civil rights and things like that.
17 Q. Calling your attention to the early '60s, did President
18 Kennedy appoint you to a position in the United States
19 government?
20 A. Yes.
21 Q. And what position was that, sir?
22 A. Assistant Attorney General.
23 Q. And for what period of time were you Assistant Attorney
24 General?
25 A. I was Assistant Attorney General until January of 1965.
7025
1 Q. From the time of your appointment until January of 1965
2 did your duties involve civil rights and human rights issues?
3 A. Extensively, yes.
4 Q. And what sort of responsibilities did you have while you
5 were an Assistant Attorney General?
6 A. Most of my activity was in the south. I was from the
7 south and I was young I had a southern accent and I could --
8 Q. You still do, sir.
9 A. -- I could function down there, better. So I handled for
10 instance all school desegregations in 1962, that is, I
11 supervised them. I spent the first week on Old Miss campus
12 with James Meredith. We had lots of soldiers and other people
13 there but I was principal official responsible for his
14 protection. He was the first African-American at Old Miss. I
15 worked Birmingham and through there. During the march from
16 Selma, Montgomery I was placed in charge of all forces
17 protecting Dr. Martin Luther King and the marchers under court
18 order who marched from Selma to Montgomery.
19 Q. As part of your responsibilities concerning the march and
20 Selma, did you actually stay in the field, in the tents?
21 A. Well, I was down there the whole time. I didn't spend
22 much time in the tent, because it was very tense and I would
23 be out most of the night driving up and down the highway
24 looking for trouble, but I would sleep in a car, sleep in the
25 tent or once or twice perhaps in a motel.
7026
1 Q. Any other responsibilities that you had while you were the
2 Assistant Attorney General involving civil rights?
3 A. I had become Deputy Attorney General at the time of Selma,
4 Montgomery, I got ahead of myself there. I became deputy in
5 January or February of '65 and the march began in March of
6 '65.
7 Q. Then you got promoted?
8 A. I participated in, I went back to Old Miss a number of
9 times in '62 and '63. We were worried we had too many
10 soldiers there. The Army didn't want to take them out.
11 Q. Keep your voice up, sir.
12 A. So I kept going back to Mississippi. I spent some time on
13 legislative recommendations and worked on what later became
14 the 19'64 Civil Rights Act. Back early in '63 actually when
15 we were drafting it, the bill was sent up in '63 during
16 President Kennedy's administration. It wasn't enacted until
17 after his death in '64.
18 Q. All right. Now, sir, did you also participate in drafting
19 of the Equal Housing Act?
20 A. Yes, by that time I had become Attorney General, and the
21 Deputy Attorney General has primary responsibility for
22 legislation, Voting Rights Act I had, that is for the
23 executive branch of course. The Congress disposes, as they
24 say. It enacts the law. We just give them our views, and
25 sometimes our efforts to enact it.
7027
1 I worked extensively on Voting Rights Act and I had
2 final responsibility for the 1968 Civil Rights Act which had
3 ten titles, one of which was Open Housing. Also I argued the
4 first Open Housing case in the Supreme Court as Attorney
5 General.
6 Q. Who appointed you Attorney General of the United States?
7 A. President Johnson.
8 Q. When did you leave that position, sir?
9 A. I left that position in January of 1969.
10 Q. Since that time has your practice involved other human
11 rights issues on a global scale?
12 A. I would say my primary interest concern activity since '69
13 has been in the international field of human rights, which to
14 me is simply the international equivalent of our civil rights
15 struggle here which continues. On I felt an obligation having
16 the experience, and I've continued to work here, too, in civil
17 rights to try to do something internationally.
18 Q. As a consequence of your involvement, sir, have you been
19 invited to and have you visited numerous countries at the
20 behest of government officials concerning human rights?
21 A. I've been invited to and I've visited many, many countries
22 and I've been refused visits to several.
23 Q. Can you name some of them?
24 A. Been inhibited from entering several.
25 Q. Can you list some of the countries that your human rights
7028
1 efforts have been sent to?
2 A. Well, I in '69 I started on Soviet Jewry. I spent, I
3 worked on cases there and Leningrad, skyjack trial, Rostovdon,
4 other cases. I went to South Africa. There I've been barred
5 for two years and finally I was able to go to South Africa in
6 1970, and have maintained an intense interest in the
7 situation.
8 When things would happen like Gulpa Bay in Chile, in
9 September '73 I went down there and spent sometime with the
10 New York judge in that case. Usually I'd put together a
11 little team and we'd go down to try to protect human rights in
12 a moment of crisis. I've been working all over the world on
13 Thailand, and the Tomasat University slaughter and the
14 Philippines, many, many times. Iran, I was there four times
15 in 1976, the last full year of the Shah's reign, and was there
16 when the Shah left in '77, and working on repression there.
17 Thirty, forty thousand people killed there that last year of
18 the Shah and trying to prevent it.
19 Q. Since 1991 in the Gulf War have you had occasion to travel
20 to Iraq?
21 A. I was in Iraq during the bombing. I went in as quickly
22 as I could get there, which wasn't terribly quick. It started
23 on the 17th of January. We drove in from Aman on the 2nd of
24 February, was the end of the second week of the bombing, and
25 spent about nine days. We drove two thousand miles looking at
7029
1 civilian damage and the effect of what was happening on the
2 civilian population. Since then I've been back ten or twelve
3 times. I go back every year. I missed one year, but a couple
4 of years I went a couple of times.
5 Q. When you were there in 1991 during the bombing I will ask
6 you specifically, sir, did you see the bombing's effect on the
7 societal infrastructure of Iraq?
8 A. We saw extensive destruction of civilian facilities,
9 civilian life. There was no electricity any place in the
10 country. There was no running water in any city or town or
11 village. You were lucky if you got your water out of a well
12 because you at least had the well.
13 Transportation, driving down the highway would be
14 buses, trucks, school buses, taxis, smashed up, hit while
15 driving down the highway. The hospitals were a major focus of
16 concern. I saw seven that had received direct hits and didn't
17 see any that didn't have damage, windows blasted out, things
18 like that.
19 Q. Now, in January of 1991 about how long had the United
20 Nations sanctions been in place?
21 A. The sanctions were first imposed on Hiroshima Day of 1990,
22 August the 6th.
23 Q. August 6, 1990?
24 A. Right.
25 Q. And the bombing started when?
7030
1 A. Depending on which part of the world you're in 17th there,
2 16th here.
3 Q. By the time the bombing started was there already an
4 impact of the sanctions on the availability of goods and
5 services in Iraq?
6 A. There was a depletion of five months, the food supply was
7 not as drastically depleted as the medical supply, and then
8 two weeks of emergency use on a large scale from January of
9 17th until I got there on February it was actually the morning
10 of the 3rd before I got there, had depleted virtually all of
11 the medicines.
12 Q. While you were there did you visit hospitals, including
13 operating rooms?
14 A. Well, they weren't using operating rooms, because they
15 were too enclosed and they didn't have electricity. They had
16 lamps in the wards. The first, when we first got there we
17 went straight to hospitals. We'd been up all night, and the
18 wards were jammed. Every bed was full, and they are strong
19 families, lots of families standing around, and the first
20 night I watched an 11 year old girl's left leg amputated
21 without any anesthesia. She went into shock, but four people
22 had to hold her down, and it actually saved, she lived, it
23 saved her life.
24 But there were people dying with shrapnel wounds, and
25 people badly battered from falling buildings and it was a
7031
1 catastrophe scene and the only light was lanterns. When
2 you're working on a patient you'd bring three or four lanterns
3 around, if you didn't have enough lanterns for a whole room,
4 so it was semi-darkness, cold.
5 Q. Did you see any indication that water treatment facilities
6 had been bombed?
7 A. Well, yes, certainly. The water system was demolished
8 from the reservoirs in the north to the taps in the cities.
9 The pipelines, the pumping stations, the filtration
10 facilities, there was no running water any place that we went
11 and I don't think there was running water any place. If you
12 happened to have gasoline power generator you might pump some
13 water but we didn't see any. I don't think there were any,
14 certainly not many, if any.
15 Q. What effects did the bombing have on the irrigation system
16 and the ability of the country to raise its own food?
17 A. Well, the bombing devastated agriculture for a long time.
18 90 percent of the poultry was lost because you depend on
19 electricity. They had, like we do, you know these sheds where
20 you 24 hour feeding and all.
21 Q. I'm afraid a lot of New Yorkers wouldn't understand the
22 requirement for electricity in poultry raising.
23 A. Well, it's a, you have light on the chickens night and day
24 so they grow faster and you feed them constantly, and when you
25 lose that and they're all crowded up there and your rain is
7032
1 gone, they lost 90 percent of their poultry. They lost lots
2 of their herds. About half their herds were driven out of the
3 country to save them because they didn't have, they didn't
4 have feed and there wasn't enough forage. All the insecticide
5 facilities were destroyed, storage facilities for insecticide
6 were destroyed, fertilizer, plants and fertilizer storage was
7 destroyed. So you had enormous difficulties with agriculture
8 to this day.
9 Q. As early as 1991 and during the bombing were Iraqi
10 citizens compelled to drink polluted water?
11 A. Well, the major compulsion was thirst, but what you saw
12 quickly was particularly among infants, the importation of
13 milk had been cut off and infant formula milk had been cut
14 off. They were getting about 25 hundred tons a month. They
15 had gotten 140 tons in five months, and mothers were under
16 food rationing and couldn't produce enough milk, and they'd
17 take sugar and water and try to supplement a baby's diet and
18 the water would be bad and the baby would go in 24 hours.
19 I met with Dr. Ibriham Anduri who was the head of the
20 Red Crescent, had been for ten years, trained in England.
21 He's a pediatrician himself, who had headed the Childrens
22 Hospital before he became head of Red Crescent, and worked in
23 Childrens Hospital in London for many years. He estimated
24 three thousand infants had died at the beginning of the
25 bombing within two weeks from the sole cause of lack of
7033
1 nutrition and milk. From bad water he thought three thousand
2 more but you couldn't, you couldn't count. He was in a better
3 position to count than anybody because he was sending out all
4 medicine that was available to all hospitals in the country
5 via courier instructions once a week and he would get reports
6 back, but it was a catastrophe of enormous magnitude.
7 Q. Did you actually walk through hospitals that year and
8 other years and see the effects on these children?
9 A. I walked through the hospitals every time I go there. I
10 don't go to all the hospitals every time, but sometimes I've
11 been to all the major hospitals on a single trip. In January
12 of this year I was in about seven hospitals and I walked
13 through the wards as I have every year, and the childrens
14 wards and the infants wards you see the same thing every time.
15 In almost every case the mother will be there with
16 the child and she's usually sitting on the bed. That's just
17 the way they do. She'll sleep on the bed and she'll sit on
18 the bed. She'll get up and stretch from time to time, but if
19 the mother is not there, you know something's happening to the
20 mother. Children, the incidence, it was interesting the
21 doctors all spoke British accent English, because nearly all
22 of them had been trained in England. That's where they got
23 their medical training. So you could talk to them very
24 easily.
25 And they would, they would tell you how they were
7034
1 losing patients and they still tell you how they lose patients
2 everyday that they can save if they only had simple medicines,
3 simple therapies, even the abilities to keep the place clean.
4 They still don't have antiseptics. They can't get chlorine to
5 purify their water. Bad water is still a major cause of
6 death.
7 Q. And just as an aside, when was the last time you were in
8 Iraq?
9 A. January of this year.
10 Q. Now, when you would take these tours through the hospitals
11 have you ever been in the presence when a child died?
12 A. Every time you see children that you wonder how they're
13 still alive. They are wasted. The doctors had never heard of
14 kwashiorkor or morasmis, or if they had, they had not seen it
15 since colonial times.
16 Q. Kwashiorkor and morasmis?
17 A. Yes, those are two severe diseases that are malnutrition
18 related which you waste away and your arms become like twigs
19 and your belly's bloat out sometimes, and you die. You go
20 through a miserable experience, and you die, and most cases in
21 kwashiorkor in many cases and morasmis. Now, they are running
22 tens of thousands of cases of kwashiorkor annually and
23 hundreds of thousands of cases of morasmis annually.
24 Q. Believe me, this is I don't mean this to sound stupid, but
25 culturally or societally, is there a significant difference or
7035
1 lessening of concern that Iraqi parents have for their
2 children versus American parents have for their children if
3 you are able to observe?
4 Do they cry for their children?
5 A. Well, cultures are very hard for other people to
6 understand and judge and comparisons or not always meaningful,
7 but the thing that's clear is that the Muslim family and the
8 Iraqi family are very, very close families. They are very
9 large families.
10 When you ask a mother how many children she has,
11 she's usually going to say five or six. If she's quite young
12 it may be one or two. This may even be her first child that
13 she's in the hospital with. They'll do things like this. The
14 hospitals can't offer much help and they will take, wherever
15 they can, they'll take their baby home to be with the rest of
16 the family over the weekend, even though they see that the
17 baby's dying.
18 You ask me whether I've ever been in the ward when a
19 baby died, several times, and the first, too many I remember
20 we looked at the baby, and when we got out of hearing I asked
21 the doctor how long he thought the baby would last and he said
22 a day or two, and before we got depo out of the room there was
23 this loud wail, which is something I'd experienced in Muslim
24 countries before, particularly in Iran, it's a means, it's
25 just totally uninhibited grief in which you just wail, and we
7036
1 went back and that woman's baby had died.
2 Q. Have you noticed a particular impact of the sanctions and
3 the bombings and the embargo on diabetics?
4 A. Well, in the early years the hospitals were full of a lot
5 of diabetics who had. There is no insulin available. If
6 there were insulin dependent within a short period of time
7 without insulin they were losing eyesight sometimes, but often
8 they were having great open sores and cracks in their feet.
9 Q. Have you seen this yourself?
10 A. Oh, sure.
11 Q. You have seen people who have been blinded by not getting
12 insulin?
13 A. Yes. Tried to get some of from the United States and
14 gotten some in to try to help them.
15 Q. And the sores you're talking about, you have seen this
16 yourself?
17 A. Sure.
18 Q. What about is there a particular impact on frequency and
19 treatment of cancer victims?
20 A. The, there has been a substantial increase in cancers,
21 tumors, lukemias, malformed infants, miscarriages, deformed
22 infants. I think that there was, there are multiple causes.
23 One, there was tremendous amount of chemicals in the air, oil
24 fires and chemical fires. We bombed chemical plants. We
25 bombed nuclear reactors that they had for production of
7037
1 electricity which weren't in service, but they had them there.
2 They had been bombed earlier you may recall.
3 So you had all this pollution, and then there was
4 depleted uranium which was used extensively through the
5 country. It took us a long time to get figures on it but I
6 think the Pentagon now concedes that over nine hundred
7 thousand rounds of machine gun fire with depleted uranium was
8 directed at Iraq, and something like fifty thousand missiles,
9 silver bullets they call them which can penetrate a tank, come
10 in one side and go out the other, but the density of the
11 depleted uranium and it vaporizes and gets in the air and it
12 gets in the ground water, and it gets in the food chain, and
13 particularly in the south in 1992 on my first trip back after
14 the bombing at the training hospital you come to know the
15 doctors. They're really remarkable heroes, because they stay
16 there, by their ingenuity and natural medicines, and all they
17 try to keep people alive, but they were beginning to see
18 deformed babies, and tumors and cancers and leukemia, and
19 people that were brought in forms they hadn't seen before and
20 in numbers they hadn't seen before.
21 By 1993 the Ministry of Health was aware of it and
22 now it's pretty established fact.
23 Q. Backing up one moment, have you seen evidence that the
24 United States bombed nuclear power plants?
25 A. I haven't seen the plants, but both general Schwartzkopf
7038
1 and Gen. Powell during the bombing said that they had taken
2 out, they named a number of chemical plants, like 28, the
3 number of nuclear reactors, too, and then they said the third
4 one, which it hadn't been reported publicly that there were
5 supposed to be three in the country, but they said they took
6 them out. Poof, gone, was the words of one of them from a
7 press conference in Saudi, Arabia, during the bombing.
8 Q. Have you spoken with Iraqi medical authorities as to the
9 number of children and others who have been dying over the
10 last ten years as a consequence of the sanctions?
11 A. I've spoken at great length on every trip and I've spoken
12 with doctors from probably forty nations when we got back.
13 When I say we, there is, I went in there with a small camera
14 crew during the bombing. When I got back the first thing we
15 tried to do is get medicine in there, and then we tried to get
16 doctors in there. So early in, early in '91 we went, what we
17 called the Harvard medical team and contacts with UNICEF and
18 others. I've talked to doctors constantly about conditions of
19 life and death in Iraq.
20 Q. Sir, have you heard the number of two 250 children per day
21 are dying as a consequence of the sanctions or one every ten
22 minutes?
23 A. I think that's a low number actually. The numbers are
24 higher than that now. The death, the numbers of death have
25 increased every year for ten years up to 2000 beginning at
7039
1 about '97 the rate of increase slowed down and they seemed to
2 be stable, but still the numbers of death have gone up, and
3 the, about half of the deaths are children under 5, and the
4 larger part of that are infants in their first year, and the
5 second largest group are the elderly, in the early years it
6 was the chronically ill.
7 Q. Why would the elderly be more represented among the
8 fatalities?
9 A. Well, I guess it's they probably use more medicine and
10 they need more nutrition, they need more care, and the thing
11 that's saddest but clear that they seem to suffer more stress.
12 It's not a good way to end your life seeing your grandchildren
13 dying and all the rest.
14 Q. Also, so people will understand, prior to the war when
15 things were fine, what percentage of Iraqis food needs were
16 met by locally grown or locally cultivated foodstuffs?
17 A. Unfortunate for Iraq I think that it was an oil producing
18 country, and you find that most Arab oil producing countries
19 don't like to work on a farm because it's hard work, and the
20 agriculture had dropped down. Iran had been radical. Here it
21 had been down to about 60 percent. They're importing about 40
22 percent of their food which made them particularly vulnerable
23 to the sanctions.
24 Q. Also, these conditions in Iraq and the deaths of the
25 children and old people, based on your traveling in the Middle
7040
1 East are these conditions widely known over there among the
2 populations of the Middle East?
3 A. I think they are a matter of daily discussion and daily
4 media coverage and not just the Middle East. I mean not just
5 Muslim countries. There are a billion Muslims in the world
6 but you go to Indonesia. You go to the Far East, or you go to
7 Malaysia, you come back the other way and you go to Mauritania
8 or Morocco, and everybody's constantly aware, everybody's
9 aware of efforts to provide some kind of relief, and Europe
10 the same, you can go to demonstrations in Italy and England
11 and all over about the sanctions against the Iraq, and the
12 deaths it's causing and the misery it's causing to the people
13 there.
14 Q. When you were there in January of this year are children
15 and old people still dying?
16 A. Sure, more than ever. I think it's tapering out and I
17 hope, but, see, even after, even after the sanctions are off,
18 when you've had ten years of malnutrition and ten years of
19 sicknesses that could have been prevented, and the general
20 health of the country is way, way down, just, in 1989, 4.5
21 percent of all live births weighed less than two and a half
22 kilos, which is the break even point for a healthy opportunity
23 to develop your body and your mind and everything.
24 Today it's 25 percent, one out of four, and that
25 means that, they'll be around for a while, we hope. Everybody
7041
1 has to hope they'll be around for a while, but they're going
2 to be small and they're going to have organs that didn't
3 develop fully, and it's going to take a long, long time to
4 overcome that.
5 Q. Another consequence of malnutrition do you see or hear of
6 increases in the number of people who are being placed in
7 facilities for the mentally disabled or retarded?
8 A. There is a strong correlation between poverty and
9 retardation. President Kennedy's Council on Mental
10 Retardation identified that in the United States and we found
11 20 percent of the retarded, 80 percent of retarded were among
12 20 percent of the people who are poorest because of
13 malnutrition, things like that. They are not big on
14 institutional living. They love their children, and they keep
15 their retarded pretty much at home, but you have to assume
16 that the rate is much higher than it would have otherwise
17 been.
18 Q. Do you see, did you see evidence of that in the streets?
19 A. See what?
20 Q. Did you see evidence of mental health problems in the
21 streets, the number of people that you see in the streets?
22 A. You see problems of stress. Death from hypertension are
23 way up. I mean they're like 22 times what they were in 1989
24 which is the last full year before sanctions. But it's not
25 something that you are aware of. You may notice it, if you
7042
1 pay attention, but it's not something. Everybody's down. I
2 mean per capita income in 1989 was 25 hundred dollars per
3 person. Today it's about $540 per person. So the poverty is
4 the thing that you really feel most dramatically.
5 Q. You traveled through a lot of these countries, haven't
6 you?
7 A. Yes.
8 Q. And you have taken some positions that have been critical
9 of the United States, am I correct?
10 A. I believe if you love your country, that's your duty, if
11 you think it's wrong.
12 Q. In fact, you have in your capacity as an attorney
13 represented one of the defendants or part of the defense team
14 for one of the defendants for the World Trade Center bombing,
15 weren't you?
16 A. That's right.
17 Q. And further you have given an affidavit in Mr. Fawwaz'
18 case in England? Didn't you send them an affidavit?
19 A. I was asked for an affidavit in that case concerning
20 whether you can get a fair trial in a terrorist case here in
21 the United States.
22 Q. Just one moment, please.
23 (Pause)
24 Q. How long do you plan to continue going back there to Iran?
25 A. Well, it's as long as it lasts and I last.
7043
1 Q. And then?
2 A. It may last as long as I do.
3 Q. If you don't know this, tell me, but are you familiar, did
4 you know that the rate of exchange for currency in Iraq which
5 was in 1990 was $3 to the dinar is now 15 hundred dollars --
6 I'm sorry -- is now 1500 dinars to the dollar? Did you know
7 that?
8 A. Well, I think I've seen the statistic but they don't
9 really mean much because there is no real exchange, and the
10 currency there is not much, is not worth a whole lot. You
11 engage in barter. I mean if you depended on your salary as a
12 school teacher or a professor or something like that, you'd
13 starve to death.
14 MR. BAUGH: Thank you. Excuse me one second, I'm
15 sorry. May I have one second, please, your Honor?
16 (Pause)
17 Q. I'll preface. In your efforts to prevent a war in 1990
18 and 1991 did you actually meet with Sudam Hussein?
19 A. I've met with him several times and I met with him in
20 probably midNovember of 1990. There were people coming from
21 all over the world trying to prevent a war and I told him
22 Hiroshima happened. You've got to get out of here. You've
23 got to get out of this mess.
24 Q. Who else went or who else met with him during that time
25 period if you know?
7044
1 A. Well, I don't know exactly at that time. People from the
2 United States.
3 Q. Mohammed Ali?
4 A. Mohammed Ali went and spent about a week.
5 Q. President Ortega?
6 A. Daniel Ortega and Miguel Descoto who at that time,
7 President and Foreign Minister of Nicaragua went, but the
8 President of France went, Tony Ben, leader of parliament in
9 the UK, and Gorbachev. All kinds of people went. There was
10 an intense desire among many to prevent a war that could only
11 be a catastrophe.
12 MR. BAUGH: Thank you, sir. Pass the witness. No
13 further questions.
14 THE COURT: Government.
15 CROSS-EXAMINATION
16 BY MR. FITZGERALD:
17 Q. Good morning, sir.
18 A. Good morning.
19 Q. I just have some brief questions. You mentioned that you
20 filed an affidavit in connection with the Fawwaz proceeding in
21 the United Kingdom. Is that correct?
22 A. That's correct.
23 Q. And you understood that the purpose of the proceeding in
24 the United Kingdom was to determine whether or not Khalid Al
25 Fawwaz who had been arrested should be sent from the United
7045
1 Kingdom to New York to stand trial, correct?
2 A. That's correct.
3 Q. And you understood the issue being presented by Khalid al
4 Fawwaz was whether or not he could be tried in this case and
5 receive a fair trial, correct?
6 A. That's the basic thrust of their position. I didn't go to
7 England. That was my understanding of it though, yes.
8 Q. And you understood that you were making a submission to
9 the Court in your capacity as an attorney with a civil rights
10 background who would give the United Kingdom a fair assessment
11 of the American judicial system, correct?
12 A. Not an overall assessment. Some history of inability to
13 provide that gain from the civil rights movement, from
14 majoring in history. Segments of the society that have not
15 gotten fair trials in the past and the present highly
16 inflammatory press coverage of Arabs and Muslims in the United
17 States who are involved in all kinds of discriminations.
18 Q. And one of the examples you cited in your submission to
19 the United Kingdom was the prosecution of Sheikh Omar Abdel
20 Rahman, correct?
21 A. That's correct.
22 Q. And one of the things you told the Court in the United
23 Kingdom was that your belief that that in picking a jury for
24 the trial in New York for Sheikh Omar Abdel Rahman and I'll
25 quote, did you say the following words: In selecting the jury
7046
1 in Sheikh Abdel Rahman's case there is no inquiry of
2 prospective jurors concerning religious preference, exposure
3 to prejudicial influence, personal history of antiMuslim or
4 Arab feelings, no probing for prejudice."
5 Is that what you told the Court in England?
6 A. That's, I haven't read it, but that sounds like roughly
7 what I would have said, yes, that's what I think.
8 Q. Okay.
9 A. There is no probing for prejudice, whatsoever.
10 Q. Okay. And you were one of the attorneys representing
11 Sheikh Omar Abdel Rahman in that trial, correct?
12 A. That's correct. I was there during the most of the voir
13 dire, but not all.
14 Q. And you saw there was a jury questionnaire that was filled
15 out by the jurors who sat on that trial, correct? Do you
16 recall that?
17 A. There was a jury questionnaire, sure.
18 Q. And did the jury questionnaire explore the juror's ethnic
19 background and the religious upbringing and the current
20 religious affiliation, yes or no?
21 A. It was not a mandatory question as I recall, but I think
22 it was on there.
23 Q. And did the questionnaire ask the jurors the extent of
24 their religious practice?
25 A. That was not obligatory either. I think the question was
7047
1 on there. We got no real information on it that I recall.
2 Q. Do you recall that the jurors were asked their personal
3 experience if any of them had ever been discriminated against
4 because of their religious background?
5 A. I think there was probably a question like that but I
6 don't think it led to any useful information.
7 Q. Do you recall if the jurors were asked a question about
8 whether or not they had any friends or relatives who practiced
9 Islam?
10 A. Who practiced Islam?
11 Q. Yes.
12 A. I don't recall specifically. It may be. I think all of
13 their questions about religion were voluntary and some
14 answered them and some didn't. We didn't know whether we had
15 Muslims on the jury, and we didn't know what the religious
16 background of people on the jury were.
17 Q. You're telling this jury that you didn't have a
18 questionnaire that had answers filled out by the jurors
19 indicating their religious preference?
20 A. They did not have to answer those questions if they didn't
21 want to is my recollection.
22 Q. Isn't it a fact that most of the jurors answered the
23 questions that were optional?
24 A. I don't recall that, no.
25 Q. Isn't it a fact that the jurors were also asked whether
7048
1 they knew anything or had any opinion about Islam?
2 A. Probably.
3 Q. And isn't is it a fact is that the jurors were asked
4 whether or not they had any knowledge or familiarity with
5 Sheikh Omar Abdel Rahman or certain mosques?
6 A. I'd be sure of that, you always ask that.
7 Q. I'm sorry?
8 A. You always ask about whether they know the defendants,
9 sure.
10 Q. And were the jurors also asked whether or not they visited
11 any one of twenty countries where Islam was practiced?
12 A. It's possible. I don't really remember.
13 Q. Were they also asked whether or not they had formed any
14 impressions of persons who followed the Islamic faith? Do you
15 recall that being in the questionnaire?
16 A. It may have been, but there was no development of any
17 information that had any utility in terms of their religious
18 belief or their preferences or how they felt about Islam or
19 anything that was important to Dr. Abdel Rachman's defense.
20 Q. Sir, was that question in the questionnaire about whether
21 they had formed any opinions of persons who follow the Islamic
22 faith?
23 A. Say it again. I couldn't hear you.
24 Q. Was there a question in the questionnaire about whether or
25 not prospective jurors had formed opinions of persons who
7049
1 follow the Islamic faith?
2 A. There probably was, yes, there should have been.
3 Q. And?
4 A. But the form doesn't do much because you can't talk to
5 them about it.
6 Q. Well, wasn't there one month of voir dire of the jurors
7 after they filled out the form in January of 1995?
8 A. You know I've been in many lengthy voir dires.
9 THE COURT: I think that's the question was for a yes
10 or no answer. That was a very specific question.
11 MR. BAUGH: Your Honor, I would object if it can't be
12 answered yes or no.
13 THE COURT: The question is whether the voir dire
14 took one month.
15 A. The voir dire took quite a while because it was a
16 complicated big case, but it developed nothing that I felt was
17 useful in determining whether the jury might come to the trial
18 with predispositions.
19 Q. And, sir, there was a one-month voir dire, you'll agree
20 with me that voir dire took a month, correct?
21 A. It took a long time, probably a month, four weeks,
22 something like that.
23 Q. And were the jurors also asked whether or not there was
24 anything about the fact that the defendants in the case were
25 Muslim or the fact that most of the defendants were Arabic
7050
1 that would in any way affect their ability to serve fairly and
2 impartially?
3 A. There probably were, that would be standard and have
4 little meaning.
5 Q. And did you tell any of that when you made the submission
6 to the Court in the United Kingdom when you said in your
7 report you described as an affidavit that there was no probing
8 for prejudice in a jury? Did you advise the Court in the
9 United Kingdom of the existence of the questionnaire asking
10 questions about attitudes and of the one month voir dire
11 process?
12 A. I say in my opinion you can't probe for questioning for
13 prejudice on a questionnaire. You have to direct questions to
14 a prospective juror about the very subject matter to find out
15 what they really believe.
16 Q. And did you tell the Court in the United Kingdom that
17 there was both a questionnaire and oral questions put to the
18 jurors about their attitudes, yes or no?
19 A. About their what?
20 Q. About their attitudes towards persons of the Islamic faith
21 or Arabic descent?
22 A. Did I tell the Court?
23 Q. In the United Kingdom that there had been an effort to ask
24 in the questionnaire about the jurors' attitudes towards the
25 Islamic religion and persons of Arabic descent? Did you
7051
1 advise the Court?
2 A. I didn't get into details like that. I just told them
3 that is there was nothing that offer us any basis, there was
4 no probing for prejudice to make an evaluation about the
5 prospective jurors. Questionnaires just don't do it and most
6 of them didn't answer. They weren't obligatory.
7 Q. Did you tell the Court in the United Kingdom in these
8 words: In selecting the jury in Sheikh Abdel Rachman's case
9 there was no inquiry of prospective jurors concerning
10 religious preference, exposure to prejudicial influence,
11 personal history of antiMuslim or Arab feelings, no probing
12 for prejudice, end quote?
13 A. I think I did and I think I was referring to the Court
14 asking direct questions in voir dire and I don't think it
15 happened.
16 Q. You're telling us that there was not questions proposed by
17 the defense to the proposed jurors about their feelings
18 towards Muslims during the voir dire?
19 A. Yeah, I think there were stacks of questions like that
20 that were proposed and not asked.
21 Q. Now, sir, did you also tell the Court in the United
22 Kingdom that you had followed this case closely, United States
23 v. Usama Bin Laden and others?
24 A. I have followed all of these cases closely, yes.
25 (Continued on next page)
7052
1 Q. And did you tell the court in the United Kingdom that the
2 evidence against Khalid al Fawwaz shows him to be engaged in
3 the activities of a spokesperson or journalist?
4 A. I don't recall that, but I may have.
5 Q. And did you tell the court in the United Kingdom that in
6 your opinion, and I'll quote, "In my opinion, to a reasonable
7 degree of professional certainty, any defendant who has had
8 the slightest contact or association with Bin Laden or any
9 other defendant or any of the coconspirators will have little
10 or no chance of receiving a fair trial or of acquittal even if
11 completely innocent."
12 Did you tell the court in the United Kingdom those
13 words?
14 A. That was my conclusion based upon my experience in Civil
15 Rights and based upon my recognition of the difficulty of
16 getting fair trials in an environment of intense prejudice and
17 demonization of peoples and religions.
18 And this case particularly has had, I think, even
19 more than Sheik Omar Abdel Rahman's case, which I consider to
20 be, in his case, an assault on Islam, pure and simple. The
21 man was blind, he was helpless, he couldn't do anything, and
22 he's in prison for life.
23 Q. Sir, let's talk about that for a moment. The blind Sheik
24 Omar Abdel Rahman, you're aware that the proof at trial at the
25 trial of the blind sheik showed that it was a plot to blow up
7053
1 the Lincoln Tunnel, the Holland Tunnel, the United Nations
2 Building, the FBI Building and other structures following the
3 bombing of the World Trade Center, correct?
4 A. Those are some of the charges, if that's what you asked,
5 yes.
6 Q. And you saw evidence during the course of the trial that a
7 person by the name of Saddiq Ali on May 30th of 1993 did a
8 surveillance of, a video surveillance of the Lincoln and
9 Holland Tunnels to see where he wished to place bombs,
10 correct?
11 A. I saw that, and I saw a lot of evidence. I saw nothing
12 that connected the sheik to the matter, in my opinion, except
13 his religion.
14 Q. And did you see evidence of a wiretap call that showed
15 when Saddiq Ali returned from surveilling the tunnels to
16 figure on you where to place the bombs, he called up Sheik
17 Omar Abdel Rahman on the phone and told him over the telephone
18 three times, "I just completed an important errand," and then
19 said, "I will tell you about it later"; do you recall that
20 evidence?
21 A. I don't really, but it doesn't mean anything to me.
22 Q. Does it mean anything to you that a person would go
23 through tunnels, look where to place the bombs to blow up
24 tunnels in Midtown Manhattan, and then call up Sheik Omar
25 Abdel Rahman and tell him he'll tell him about it later?
7054
1 A. Sheik --
2 MR. BAUGH: Objection, your Honor. That's assuming a
3 fact. He didn't say he was going to tell him about the
4 surveillance of the --
5 THE COURT: The question is whether this witness
6 attaches any significance to that. That's the question.
7 A. Certainly going through the tunnels and taking film is
8 something that you attach great significance to. The phone
9 call to Sheik Omar Rahman meant nothing.
10 If you watched the whole case, Saddiq Ali was trying
11 to ingratiate himself with the sheik constantly. He tried to
12 act as his spokesman. There are other people that tried to do
13 it because he was a religious leader and people wanted to
14 identify with him. But who needed him? What's the point of
15 telling him? What could he do? What's he know about tunnels?
16 What's he know about buildings? He does not know anything.
17 He couldn't speak English. He had never been to the city.
18 He's not the guy you want to be in your gang if
19 that's what you're about. I tell you, he was a religious man.
20 Q. Wasn't he recorded on tape telling someone that he should
21 try to bomb the United States Army, that would be a better
22 target than the United Nations at one point; yes or no, sir?
23 A. He suggested to a man who was paid a million dollars as an
24 informer that you shouldn't be talking about civilians, you
25 ought to be talking about the army.
7055
1 Q. Bombing the American Army is where he said he should place
2 the bomb?
3 A. American or U.S. Army, whatever he said, yes.
4 Q. And lastly, sir, based upon your recounting to the United
5 Kingdom Court of what happened in the trial of Sheik Omar
6 Abdel Rahman in jury selection, did you tell that court in the
7 United Kingdom that, with regard to this trial, "Despite the
8 intensity of the prejudicial pretrial publicity, the hostility
9 of the media, and the existence of deep, widespread
10 cultivative prejudice against Bin Laden and his codefendants,
11 in a city with the largest Jewish population in the world,
12 which headquarters militant Zionist organizations, there will
13 not be a real effort to choose a jury free of preconceptions
14 and prejudice"; is that part of the basis of what you
15 represented to the United Kingdom Court?
16 A. That was my opinion, yes.
17 Q. Thank you.
18 MR. FITZGERALD: Nothing further.
19 THE COURT: Any redirect?
20 MR. BAUGH: Yes.
21 REDIRECT EXAMINATION
22 BY MR. BAUGH:
23 Q. As lawyers who have tried cases in the South, is it your
24 opinion that African-Americans do not, cannot get a fair trial
25 on a capital case in the South?
7056
1 MR. FITZGERALD: Objection, relevance.
2 MR. BAUGH: I'm going to probe on the voir dire
3 issue, your Honor.
4 MR. FITZGERALD: Objection, your Honor, relevance and
5 scope.
6 (Record read)
7 THE COURT: Yes, objection sustained.
8 MR. BAUGH: Withdrawn.
9 BY MR. BAUGH:
10 Q. Sir, have you been in cases in the South where judges have
11 asked jurors, "Are you prejudiced against black people?" and
12 stop the voir dire at that? Have you been present for that?
13 MR. FITZGERALD: Objection, relevance, scope.
14 THE COURT: Sustained. Sustained.
15 Questions with respect to trials of blacks in the
16 South are not pertinent.
17 BY MR. BAUGH:
18 Q. Sir, has it been your experience that most bias and
19 prejudice is subconscious?
20 A. Your last words?
21 Q. Is subconscious; most bias and prejudice against people is
22 subconscious?
23 A. I think it's overwhelmingly subconscious. It's obviously
24 conscious to extreme racists, but most are unaware of their
25 value patterns until it hits them in the face.
7057
1 Q. And would you agree that to determine the level of
2 prejudice or bias that a person might have, there should be
3 probing questioning by someone who really wants to know the
4 answer? Would you agree with that?
5 A. Absolutely. Many is a time we have taken one single
6 individual witness for more than a day on voir dire to see
7 whether they can render a fair verdict. That's the only way I
8 know to do it in the face of extreme prejudice. In the case
9 of the Attica rebellion or the Orange County shoot-out in
10 which Judge Bailey was murdered, you got to probe individually
11 an individual where you have got extreme emotion and prejudice
12 about the subject matter and the accused.
13 Q. And when you were talking about no effective voir dire in
14 that particular trial, were you talking about no direct
15 questioning by the attorneys to determine the presence of
16 subconscious prejudice?
17 A. I was talking about not only the inability of lawyers to
18 ask questions, but the inadequacy of the questions asked by
19 the judge. They are group questions and you are sitting there
20 with all these other people in the main, and who's going to
21 stand up and say, "yeah, I'm a racist" or whatever.
22 Q. During your lifetime have you ever met a racist?
23 A. Say it again.
24 MR. FITZGERALD: Objection.
25 THE COURT: During your lifetime.
7058
1 Q. During your lifetime, have you ever met a racist?
2 A. Have I ever been a racist.
3 Q. Ever met one?
4 A. Ever met one.
5 THE COURT: I'll sustain the objection to that
6 question.
7 BY MR. BAUGH:
8 Q. Sir, have you ever met anyone that had a serious
9 prejudice?
10 MR. FITZGERALD: Objection.
11 THE COURT: Sustained.
12 MR. BAUGH: Okay.
13 BY MR. BAUGH:
14 Q. Is it your opinion, sir, that certain people, because of
15 their affiliations, whether they are guilty or not, have a
16 lesser likelihood of getting a fair trial than other people?
17 A. Certainly.
18 Q. When you wrote your affidavit to the British courts, did
19 you intend to convey to them that in the United States of
20 America, because of the possibility of prejudice, that there
21 is a danger that people from minority groups or groups that
22 are feared have a lesser likelihood of getting all the
23 protections to which they are entitled?
24 A. My affidavit described severe discrimination against
25 African-Americans in the South, against Catholics, against
7059
1 Mexican-Americans in Texas, where I came from, and couldn't
2 serve on juries, couldn't serve on Grand Juries, yet they were
3 sentenced to death.
4 It went all through that type of history, and then it
5 came up to what I have seen as the intense prejudice and
6 discrimination against Arabs and Muslims in the United States
7 for a good 20 years now, where when you say "Palestinian,"
8 people think terrorists. When you watch what the Immigration
9 and Naturalization Service does or the FBI does or DEA does or
10 when Oklahoma City goes up, immediately they're saying Muslims
11 did it. It's been intense, and I thought the court in England
12 ought to be aware of that.
13 Q. Sir, has it been your life, and will it continue to be
14 your life, to prevent prejudice from manifesting itself in the
15 American judicial system?
16 A. I hope that that's the goal of all judicial systems,
17 fairness and equal justice. And I think it's something you
18 have to work at. You have to watch the passions of the time
19 and be sure that they're not intruding into the courtroom.
20 It's very hard to think that people come in here and
21 they're different than they were outside, you know. And we
22 found out in the South to get a fair judge was very, very
23 difficult. It's hard to say. You don't want to think it, but
24 to get a fair jury could be almost impossible. That's why 90
25 percent of the people executed for rape between 1930 and 1960
7060
1 were African-American. 90 percent.
2 MR. FITZGERALD: Objection; beyond the scope and
3 nonresponsive.
4 THE COURT: Sustained.
5 BY MR. BAUGH:
6 Q. Do you in some kind of way consider yourself to be
7 unAmerican because you question your government?
8 A. I think an American has an obligation to question our
9 government if she loves it, because she wants her government
10 to be good and do right.
11 MR. BAUGH: Pass the witness. No further questions.
12 RECROSS-EXAMINATION
13 BY MR. FITZGERALD:
14 Q. In America we try to be accurate, correct?
15 MR. BAUGH: Objection, your Honor. That's not a
16 question. Objection.
17 THE COURT: Overruled.
18 Q. In America we should be accurate when we speak in court,
19 correct?
20 A. Well, I don't think that's limited to Americans. I think
21 everybody ought to be accurate when they speak in court and
22 out of court.
23 Q. And you told the jury just moments ago, in response to a
24 question by Mr. Baugh, that during the jury selection process
25 in the trial of Sheik Omar Abdel Rahman that the jurors were
7061
1 interviewed in a group and they were afraid to speak up; is
2 that correct?
3 A. I said generally, yes, impaneled in groups.
4 Q. Wasn't each prospective juror brought back into a room by
5 themselves so that the judge could ask the questions of each
6 juror individually at that trial; yes or no?
7 A. I don't recall that. I thought they were questioned in
8 smaller groups and they were questioned, when they had gave
9 some answer that wasn't clear, they were individually
10 questioned.
11 Q. Do you recall if Judge Mukasey had a separate room
12 downstairs in the courthouse where he sat with the attorneys
13 and brought in each juror, one at a time, in the presence of
14 all attorneys for the government and the defense, including
15 jury consultants?
16 A. I think that's right, yes.
17 MR. FITZGERALD: Thank you. I have nothing further.
18 THE COURT: Anything further of this witness?
19 MR. BAUGH: No, sir.
20 THE COURT: Thank you, sir. You may step down and we
21 will take our much belated midmorning recess.
22 (Recess)
23 THE COURT: Let's resume.
24 MR. COHN: Your Honor, may I report on the Halliday
25 tape now or after lunch hour?
7062
1 THE COURT: You may report on it.
2 MR. COHN: May I be heard?
3 THE COURT: Yes.
4 MR. COHN: Your Honor, with Ms. Gasiorowski, my
5 associate, I viewed the Halliday tape and what we have is some
6 anecdotal notes. Obviously we can't do a real transcript in
7 the time we have. I believe that there are probably problems
8 with the tape that you would find should be excised.
9 I have spoken to the government. We have sent the
10 tape out for digitalization because that's the only way we can
11 edit it, and we're going to try and, if your Honor will let
12 us, put it in tomorrow after I have worked with the government
13 on it to see if we can resolve the issues of taking out the
14 parts that I believe they will find objectionable and that I
15 believe you would sustain the objection on and report to you
16 early in the morning and hopefully do it that way.
17 THE COURT: Very well.
18 MR. COHN: If your Honor wishes a copy of our notes,
19 I have a copy for you and the government.
20 THE COURT: No, I will follow the procedure that you
21 have just suggested.
22 MR. COHN: Thank you, your Honor.
23 THE COURT: With respect to the documentary produced
24 by Free World Organizations, I don't know exactly who that is
25 I have. I have watched the first half hour of it and I will
7063
1 permit it.
2 Is the nature of the government's objection resolved
3 by the court viewing the first half hour, or you wish me to
4 review the rest? I can do it easily during the lunch hour.
5 MR. FITZGERALD: Your Honor, I know there is a point
6 with very disturbing photographs. I don't know where --
7 THE COURT: Oh, yes, there are. There are disturbing
8 photographs.
9 MR. BAUGH: Towards the end?
10 THE COURT: No, I think I stopped it at 30 minutes
11 and I think the disturbing photographs were probably 4 or 5
12 minutes earlier.
13 MR. FITZGERALD: I'm trying to, since I saw a number
14 of --
15 MR. BAUGH: A can I help, your Honor?
16 THE COURT: There are pictures of bomb victims and
17 corpses.
18 MR. BAUGH: Mr. Fitzgerald, if I'm correct, at the
19 very end of that tape there is a section on the depleted
20 Uranium. At that section, there are about three seconds of
21 pieces of pictures of some deformed children that are about
22 the last -- they are like the last five or ten minutes of that
23 tape. Very light and very quick, but they are in there. If
24 that's what Mr. Fitzgerald is trying to recollect, that could
25 be --
7064
1 THE COURT: Is that it?
2 MR. FITZGERALD: I believe so. My recollection was
3 there were some in the middle and it came up a couple of
4 times.
5 THE COURT: The section that I saw showed victims of
6 bombings, civilians.
7 We'll take it up at the break. The jury is just
8 outside the door.
9 What is the next order of business?
10 MR. BAUGH: Unfortunately, the next three items of
11 order of business -- no matter what order form it is -- that
12 video we're talking about now, the report from UNICEF on
13 infant mortality and the Denis Halliday tape, which we are
14 happy to redo. The next item is the Iraqui fact sheet from
15 the Central Command, which takes a few moments, and then
16 followed by "A Silent Weapon," which is an 18-minute excerpt
17 from a tape about embargo. So we have a problem here.
18 THE COURT: You also were introducing fatwahs and
19 other things to which there was no objection.
20 MR. BAUGH: Yes, your Honor. That will only take --
21 I'm just going to introduce them and argue them. I was going
22 to introduce them en masse and proceed. And then, of course,
23 there are the books which I need to do the cover sheet for.
24 MR. FITZGERALD: Your Honor, he mentioned something
25 about a UNICEF fact sheet. If I could just check that. That
7065
1 was not on the list this morning.
2 MR. BAUGH: I'm sorry, it was tab 7. It was an
3 Iraqui fact sheet.
4 MR. FITZGERALD: That is the fact sheet we have.
5 THE COURT: You said there was no objection.
6 Why don't you do this, Mr. Baugh. Why don't you
7 introduce the fatwas and the other things to which there was
8 no objection and then we'll break for an early lunch and we'll
9 resume after it, and during that time I will have completed
10 reviewing the various tapes that you have given me. I'm
11 having lunch sent in the robing room so I can view the tapes
12 during luncheon recess.
13 (Jury present)
14 THE COURT: Mr. Baugh.
15 MR. BAUGH: Yes, your Honor. I'm sorry. Forgive me.
16 At this time the defense would offer Defendant's
17 Exhibit Al-'Owhali Y, the same being an unclassified fact
18 sheet from the United States Central Command concerning the
19 Nation of Iraq. It's in various items concerning its economy,
20 its rate of exchange and historical information, which we
21 would offer as Al-'Owhali Y.
22 THE COURT: Received.
23 (Defendant Al-'Owhali Exhibit Y received in evidence)
24 MR. BAUGH: We would also offer at this time
25 Defendant Al-'Owhali's Exhibit CC, the same being the text of
7066
1 a fatwah urging Jihad against Americans published in al 'Quds,
2 February the 23rd, 1998.
3 THE COURT: Yes.
4 MR. BAUGH: We would also ask to adopt.
5 THE COURT: Received.
6 (Defendant Al-'Owhali Exhibit CC received in
7 evidence)
8 MR. BAUGH: Thank you.
9 We would also ask to adopt Exhibit 1600T, 1600T, the
10 same being the fatwah that was previously introduced during
11 the guilt phase. And we have a transcript of the May 1998
12 Usama Bin Laden ABC interview. I have been told, however,
13 that it has already been introduced. I do not know the
14 exhibit number. I can submit a new copy at this time, or over
15 the break I can find out what the earlier exhibit number was.
16 THE COURT: 1600T is already in evidence.
17 MR. BAUGH: Yes, it is.
18 THE COURT: And does somebody have the exhibit number
19 for the --
20 MR. FITZGERALD: We'll check the exhibit numbers.
21 It's either 80 or 81. We'll check that at the break.
22 THE COURT: Exhibit 80 or 81, whichever one of those
23 refers to the 5/1998 fatwah, is received.
24 MR. BAUGH: Yes, your Honor.
25 MR. FITZGERALD: It's 81-T.
7067
1 THE COURT: 81-T received.
2 MR. BAUGH: We would ask to adopt 81-T from the guilt
3 phase.
4 THE COURT: Yes.
5 (Defendant Al-'Owhali Exhibit 81-T received)
6 MR. BAUGH: Thank you, your Honor.
7 At this time, your Honor, pursuant to those issues we
8 discussed during break, I would move for an early lunch.
9 THE COURT: Yes, early lunch. That application is
10 granted.
11 We'll break for lunch now, ladies and gentlemen, and
12 we'll resume at 2:15. It's a little longer break than we
13 usually do, but there is a reason for that. Enjoy your lunch.
14 THE COURT: I don't have the Halliday tape and I
15 don't have -- there's a reference to something else, religious
16 group. I don't have that.
17 How long is the Halliday tape?
18 MR. COHN: About 30 to 40 minutes, your Honor.
19 THE COURT: All right. We're adjourned to 2:00.
20 (Luncheon recess)
21
22
23
24
25
7068
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 THE COURT: I have viewed in its entirety the
4 documentary prepared by Free World Productions, and I make the
5 following proposal, and that is that it be admitted up until
6 the point where there is a shot of the sign outside a hospital
7 building beginning with a B.
8 Following that, the documentary goes into a
9 protracted discussion of the Gulf War Syndrome and the
10 American and/or Pentagon treatment with respect to servicemen
11 who alleged that they suffered from Gulf War Syndrome, and
12 then proceeds to a depiction of babies suffering from
13 malnutrition and birth defects.
14 There are a couple of reasons why I suggest that as
15 the cutoff point. Obviously Americans' treatment of its own
16 servicemen is not relevant here. If anything, it shows that
17 the Pentagon's belief that the use of the depleted uranium in
18 the missiles was causing a toxic substance can hardly be
19 described as anti-Muslim if it related as well to American
20 servicemen.
21 And there are shots of the American servicemen
22 handling the missiles and so on. The extent to which the
23 substance of it relates to children in Iraq, we had it once
24 from Ramsey Clark and we would have it again with Halliday.
25 With respect to Halliday, I suggest that the first
7069
1 two and a half minutes be deleted. Those first two and a half
2 minutes Halliday states his opposition to terrorism and his
3 opposition to the death penalty and that the reason why he was
4 cooperating was his views on the death penalty.
5 And then --
6 MR. COHN: May I be heard on that?
7 THE COURT: Let me finish. Yes. I'm almost
8 finished.
9 And that that continue until the 34 minutes and 20
10 seconds into the tape, towards the very end, when he is asked
11 his views with respect to Bin Laden and whether Bin Laden is
12 justified by virtue of the conditions in Iraq.
13 That's what I would propose. If these deletions are
14 made, they don't require any digitizing or any other special
15 treatment.
16 MR. COHN: The only other thing I would suggest, your
17 Honor, is that I think it's important -- if you can separate
18 them, we will try -- that the basis of his opposition to
19 terrorism actually supports his credibility, and I believe we
20 can take out the portion about his opposition to the death
21 penalty through the digitized procedure.
22 MR. FITZGERALD: Your Honor, I'm more concerned about
23 his --
24 MR. COHN: Mr. Baugh tells me that for purposes of
25 ending today, we will do it the way your Honor suggested
7070
1 rather than my suggestion.
2 THE COURT: All right.
3 Mr. Fitzgerald.
4 MR. FITZGERALD: You may be shocked to learn I would
5 end the tape a bit earlier. My concern is his personal
6 definition of "genocide"; whether he considers no fly zones
7 illegal acts are not relevant to -- his personal views of it
8 are not relevant to the circumstances of why Al-'Owhali
9 engaged in the crime. And we don't have the opportunity, we
10 don't have a balanced presentation that explains why the no
11 fly zones are there -- because of the movement of a half a
12 million Curds being forced out of the country, the gasing of
13 Curds, et cetera -- and I don't know what the relevance is.
14 The no fly zones, it just seems to me, your Honor, if
15 the point is to show the impact on the Iraqui people, that's
16 redundant, more than set forth in the early part, but his
17 personal opinions of international law and genocide are not
18 relevant.
19 THE COURT: I debated that. He gives his views on
20 genocide and he gives his views on vested interests in the
21 United States, particularly the oil interests, and that's at
22 about five minutes before the end.
23 What I suggest we do is this: that we play the
24 documentary, as I have suggested -- that's about an hour; that
25 we play Halliday beginning at two and a half minutes and
7071
1 ending at the point when the question is asked with respect to
2 genocide. There is a very specific question. We end it at
3 that point, and if anybody feels strongly that anything that
4 we have deleted should be shown, why we can take it up when
5 we're looking at it.
6 Is that an agreeable procedure?
7 MR. BAUGH: Yes, your Honor. You said 37 and a half
8 minutes into the tape we cut it off? Is that where the
9 genocide thing starts?
10 THE COURT: No, with respect to the documentary --
11 MR. BAUGH: Oh, the documentary.
12 THE COURT: -- we stop where there is a sign showing
13 the general hospital. I'll say we end it. I'll watch it
14 again.
15 And with respect to Halliday, we start two and a half
16 and we continue to the question about genocide. When the word
17 "genocide" is used, we'll stop. That's towards the end.
18 MR. BAUGH: All right. If we can have a little break
19 after we show the "Hidden Wars" tape and introduce one
20 exhibit, if you can give us a few minutes we'll queue up Denis
21 Halliday's tape outside the presence of jury.
22 THE COURT: Yes, I can do that. There was some other
23 thing I was supposed to look at, something about religious
24 groups' views.
25 MR. BAUGH: There is an 18-minute portion of a tape
7072
1 that we have queued up for those 18 minutes, and we would
2 like -- it's a portion of a tape called "Silent Weapon." It's
3 about the embargo, and we pulled a section out of the middle
4 of it. We have it queued up for that and Ms. Brown knows when
5 to turn it off and we would like to show it to you.
6 THE COURT: Aren't you going to have had enough on
7 the fuel oil embargo?
8 MR. BAUGH: Excuse me.
9 THE COURT: Aren't you going to have had enough with
10 the 60 Minutes, with Ramsey Clark, with Halliday and this
11 documentary, don't you think you have fully exhausted the
12 issue of the fuel oil embargo?
13 MR. BAUGH: Candidly, your Honor --
14 THE COURT: Obviously if you look at the Bin Laden
15 fatwahs, fuel oil embargo doesn't loom large in my mind as his
16 explanation of why Americans have to be driven out of the
17 Arabian Peninsula.
18 MR. BAUGH: Your Honor, actually, the issue on all
19 the fatwahs that we have seen, there is there is a lot of
20 reference, and based on our investigation, it is very
21 widely -- the plight of the children in Iraq is --
22 THE COURT: I will watch those 18 minutes during our
23 mid afternoon recess.
24 MR. BAUGH: Thank you, sir.
25 MR. COHN: Your Honor, there is only one other issue.
7073
1 I have some more of a complaint reading to do.
2 THE COURT: What?
3 MR. COHN: Complaint reading.
4 THE COURT: You can read it.
5 MR. COHN: Which I'm going to try and truncate it as
6 terminally boring. But the government has not yet been able
7 to put together the stipulation that we need, which is
8 somewhat technical and that's why the government is doing it.
9 And that won't be ready until tomorrow morning, probably. So
10 I'm just advising you of that.
11 THE COURT: So assuming that that is the first thing,
12 that order of business, tomorrow --
13 MR. COHN: I would think Mr. Baugh would hate to end
14 the defense case on my reading of this complaint. It seems to
15 me --
16 THE COURT: That's a matter of staging and theatrics,
17 which I certainly am not going to inject myself into.
18 MR. COHN: It's not staging a theatrics. It's
19 boring. Having me read a document, unfortunately, is boring.
20 THE COURT: Let him read it.
21 MR. COHN: Maybe if your Honor wants to deal with the
22 18-minute tape, maybe Mr. Baugh would be happier if you would
23 accept the tape, that I read this this afternoon, read the
24 stipulation in the morning, and finish up with playing the
25 tape. I don't know.
7074
1 THE COURT: Why don't you work that out between you.
2 MR. COHN: No, but I'm just suggesting, your Honor,
3 that there's something for tomorrow morning. How we're going
4 to do it is in issue.
5 THE COURT: Will that be it? At that point the
6 defense will rest?
7 MR. BAUGH: Yes, we plan to -- I'm trying to rest
8 today. I really am.
9 THE COURT: Trying to rest today.
10 MR. BAUGH: I know that the United States --
11 THE COURT: I'll try to accommodate that wish.
12 I think you have been given the substitute pages for
13 the charge.
14 MR. COHN: We have, your Honor.
15 THE COURT: Very well.
16 The jury, incidentally, sent a note objecting to not
17 being allowed to go out for lunch because it gets for them to
18 be a long day not to go out to lunch. And since I spent my
19 day here at lunch, watching these tapes, I'm somewhat
20 sympathetic to that.
21 MR. BAUGH: Your Honor, when the jury comes back in,
22 my co-counsel is going to read a few moments, a few minutes'
23 worth of records, then we'll go to the tape and be ready.
24 THE COURT: All right.
25 MR. BAUGH: Thank you.
7075
1 (Jury present)
2 THE COURT: I have conveyed to the marshal your
3 request to go out for lunch, when possible, and we'll try to
4 do that. I know it gets to be a long day.
5 Mr. Cohn.
6 MR. BAUGH: Your Honor, if the jurors wear
7 headphones, would that help them to be able to hear the tape
8 better, does anybody know?
9 THE COURT: I don't know.
10 MR. BAUGH: Thank you anyway. We'll check.
11 MR. COHN: Your Honor, at this time the defense
12 offers Exhibit Al-'Owhali FF, which is a redacted version of
13 the amended complaint in United States of America against Adel
14 Mohammed Abdul Almagid Abdul Bary and Ibrahim Hussein
15 Abdelhadi Eidarous.
16 THE COURT: And this is being offered with respect to
17 the issue of relative role?
18 MR. COHN: That's right, your Honor.
19 THE COURT: Yes, very well.
20 (Defendant Al-'Owhali Exhibit FF received in
21 evidence)
22 MR. COHN: Your Honor, I will read in pertinent part,
23 but hardly the complete document, each as redacted. It will
24 be available should the jury want it.
25 THE COURT: Very well.
7076
1 MR. COHN: Again, the first page is the caption,
2 which has over it -- and we're not doing this on the Elmo so
3 you will have to forgive us -- Patrick Fitzgerald as having
4 approved the document, and it reads as follows:
5 "Count One. From at least 1991 until the date of the
6 filing of this indictment, in the Southern District of New
7 York, in Afghanistan, the United Kingdom, the Sudan, Kenya,
8 Tanzania, Somalia, Azerbaijan, and elsewhere, out of the
9 jurisdiction of any particular state or district, Adel
10 Mohammed Abdul Almagid Abdul Bary, a/k/a Abbas, and Ibrahim
11 Hussein Abdelhadi Eidarous, a/k/a Daoud, a/k/a Abu Abdullah,
12 a/k/a Ibrahim, the defendants, together with Usama Bin Laden,
13 Ayman al-Zawahiri, and other members of and associates of the
14 groups known as al Qaeda and Egyptian Islamic Jihad, and
15 others known and unknown, unlawfully, willfully and knowingly
16 combined, conspired, confederated and agreed to kill nationals
17 of the United States in violation of Title 18," statute
18 number.
19 "f. In or about August 1995, the defendant Ibrahim
20 Hussein Abdelhadi Eidarous began organizing the Egyptian
21 Islamic Jihad cell in Baku, Azerbaijan;
22 "h. On or about March 20, 1997, the defendant Abdel
23 Mohamed Abdul Almagid Abdul Bary leased the premises known as
24 Unit 5 1a Beethoven Street, London, England;
25 "j. In or about October 1997, coconspirators in
7077
1 Afghanistan called the defendant Adel Mohammed Abdul Almagid
2 Abdul Bary;
3 "l. On or about February 20, 1998, the defendant
4 Adel Mohammed Abdul Almagid Abdel Bary leased the premises
5 known as Unit 5 1a Beethoven Street, London, England, which he
6 maintained until on or about September 23, 1998;
7 "m. Between in or about January 1998 and in or about
8 August 1998, coconspirators in Afghanistan called the
9 defendant Ibrahim Hussein Abdelhadi Eidarous;
10 "n. In or about February 1998, Usama Bin Laden and
11 Ayman al-Zawahiri, coconspirators not named as defendants
12 herein, and others issued a fatwah calling for the murder of
13 American citizens anywhere in the world, which fatwah was
14 possessed by the defendants Adel Mohammed Abdul Almagid Abdul
15 Bary and Ibrahim Hussein Abdelhadi Eidarous, in London,
16 England;
17 "o. On or about August 4, 1998, the Egyptian Islamic
18 Jihad issued a statement threatening retaliation against the
19 United States;
20 "r. On or about August 7 and August 8, 1998, the
21 defendants Adel Mohammed Abdul Almagid Abdul Bary and Ibrahim
22 Hussein Abdelhadi Eidarous assisted in the dissemination of
23 claims of responsibility for the bombings of the American
24 embassies in the name of the 'Islamic Army of the Liberation
25 of the Holy Places" to media organizations in Paris, France,
7078
1 Doha, Qatar, and Dubai, United Arab Emirates.
2 "Count Two. Conspiracy to Murder Internationally
3 Protected Persons, United States Government Employees, and
4 Others Within the Special Maritime and Territorial
5 Jurisdiction of the United States.
6 "From in or about 1991 through the date of the filing
7 of this complaint, within the special maritime and territorial
8 jurisdiction of the United States, as well as Afghanistan, the
9 United Kingdom, the Sudan, Kenya, Tanzania, Somalia,
10 Azerbaijan, and elsewhere outside the United States and
11 outside the jurisdiction of any particular state or district,
12 Abdel Mohamed Abdul Almagid Abdul Bary, a/k/a Abbas, and
13 Ibrahim Hussein Abdelhadi Eidarous, a/k/a Daoud, a/k/a Abu
14 Abdullah, a/k/a Ibrahim, the defendants, together with Usama
15 Bin Laden, Ayman al-Zawahiri, and other members of and
16 associates of the groups known as al Qaeda and Egyptian
17 Islamic Jihad, and others known and unknown, unlawfully,
18 willfully and knowingly combined, conspired, confederaaated
19 and agreed together and with each other to kill individuals."
20 Count Three is entitled "Conspiracy to Destroy
21 Buildings and Property of the United States," and I will spare
22 the Court the reading of it.
23 Count Four is "Bombing of the United States Embassy
24 in Nairobi, Kenya Resulting in More Than 200 Deaths."
25 "10. On or about August 7, 1998, in Nairobi, Kenya,
7079
1 the United Kingdom, and outside the jurisdiction of any
2 particular state or district, Adel Mohammed Abdul Almagid
3 Abdul Bary, a/k/a Abbas, and Ibrahim Hussein Abdelhadi
4 Eidarous, a/k/a Daoud, a/k/a Abu Abdullah, a/k/a Ibrahim, the
5 defendants, together with Usama Bin Laden, Ayman al-Zawahiri,
6 and other members of and associates of the groups known as al
7 Qaeda and Egyptian Islamic Jihad, and others known and
8 unknown, unlawfully, willfully and knowingly did maliciously
9 damage and destroy, and attempted to damage and destroy, by
10 means of fire and an explosive, buildings owned and possessed
11 by, and leased to, the United States, to wit, the United
12 States Embassy in Nairobi, Kenya, and as a result of such
13 conduct directly and proximately caused the deaths of at least
14 212 persons, including Kenyan and American citizens."
15 Count Five is "Bombing of the United States Embassy
16 in Dar es Salaam," and your Honor, that tracks the language of
17 the previous count and charges the two both named persons with
18 participation in the bombing of the Tanzanian -- or the United
19 States Embassy in Tanzania.
20 "2. As set forth below, Abdul Bary is a member of
21 the Egyptian Islamic Jihad, a group that is closely affiliated
22 with the terrorist group known as al Qaeda. Indeed, Abdul
23 Bary appears to have been in contact with people using a
24 satellite phone used by Usama Bin Laden's military commander
25 via satellite telephone. His operational role on behalf of al
7080
1 Qaeda is further evidenced by the fact that his fingerprints
2 were recovered on a February 1998 fax copy of a document
3 declaring war on American civilian population worldwide --
4 which declaration appears to have been received in an office
5 run by Abdel Bary long before it was published. Finally,
6 Abdul Bary's fingerprints were recovered on copies of all
7 three documents claiming responsibility for the August 1998
8 bombings in East Africa -- which claims were received prior to
9 the bombing.
10 "3. Also, as is set forth below, Eidarous organized
11 a cell for secret work in Baku, Azerbaijan and London,
12 England. He was in frequent contact with the satellite phone
13 used by Usama Bin Laden's military commander throughout 1988.
14 Moreover, his fingerprints also were recovered on the same
15 February 1998 declaration of war on American civilians that
16 Abdul Bary's fingerprints were found. Finally, Eidarous'
17 fingerprints were on one of the documents related to the claim
18 of responsibility for the August 1998 bombings in East
19 Africa -- which claims were received prior to the bombing.
20 Finally, those media claims were disseminated on August 8 to
21 three foreign media outlets -- the telephone numbers of which
22 were recovered in Eidarous' wife's phonebook on a page where
23 Eidarous' prints were discovered."
24 Your Honor, I will leave the other material for the
25 jury or to be commented on during summation.
7081
1 THE COURT: Very well.
2 MR. BAUGH: Thank you, your Honor.
3 At this time, your Honor, we would offer into
4 evidence the "Hidden Wars" video as Al-'Owhali Exhibit V, as
5 in Victor.
6 THE COURT: And this is a video prepared, as it
7 indicates, by an organization called Free World Productions.
8 And the date of it is?
9 MR. BAUGH: I think it's March of this year, your
10 Honor.
11 THE COURT: Very well. You may play so much of it
12 as --
13 (Defendant Al-'Owhali Exhibit V received in evidence)
14 MR. BAUGH: Mrs. Brown is waiting for your queue.
15 (Tape played)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
7082
1 THE COURT: I think this is a good point.
2 MR. BAUGH: Thank you.
3 At this time, your Honor, on behalf of defendant
4 Mohamed Al-'Owhali defense would offer Defendant's Exhibit W,
5 the same being the UNICEF report on the results of the 1999
6 Iraq child and infant mortality survey with attached charts
7 and graphs detailing the infant mortality rates from 1960 to
8 2000.
9 MR. FITZGERALD: Could we take the break?
10 THE COURT: Yes, we will reserve the break.
11 MR. BAUGH: We have already in evidence V which is
12 the tape we've just seen.
13 THE COURT: Yes. Up to the portion of Batshar
14 Hospital.
15 MR. BAUGH: At this time, your Honor, I would like to
16 read into the record two agreed stipulations. The first is
17 Al-'Owahli AA.
18 It is hereby stipulated and agreed by and between the
19 United States of America by Mary Jo White, United States
20 Attorney for the Southern District of New York, Patrick J.
21 Fitzgerald and Michael J. Garcia, Assistant United States
22 Attorneys, of counsel, and defendant Mohamed Rashed Daoud
23 Al-'Owhali by and with the consent of his attorneys, that the
24 defendant's date of birth is January 18, 1977, and that on
25 that -- I typed this one -- and on the date of offense he was
7083
1 21 years of age.
2 It is further stipulated and agreed that this
3 stipulation may be received in evidence as a defense exhibit
4 at trial. June 4, 2001, signed by attorneys for
5 Mr. Al-'Owahli and the United States. Again, exhibit AA.
6 THE COURT: Received.
7 (Defendant's Exhibit AA received in evidence)
8 MR. BAUGH: The next exhibit, stipulation again
9 pointing out we are just, the evidence would show, it is
10 hereby stipulated and agreed by and between the United States
11 of America by Mary Jo White, United States Attorney for the
12 Southern District of New York, Patrick J. Fitzgerald and
13 Michael J. Garcia, Assistant United States Attorneys, of
14 counsel, and defendant Mohamed Rashed Daoud, al-'Owahli, by
15 and with consent of his attorneys as follows:
16 1. During interviews with Special Agent Gaudin of
17 the Federal Bureau of Investigation during the defendant's
18 interrogation, the defendant stated he suggested to Saleh that
19 the bomb be placed in front of the embassy or under the
20 embassy so that there would be significant damage to the
21 embassy and the Americans but less damage to the Kenyans. The
22 defendant advised the agent that the United States was his
23 enemy and not Kenya. Saleh did not take the defendant's
24 advice and the plan was not changed.
25 2. During interviews with Special Agent Gaudin of
7084
1 the Federal Bureau of Investigation during the interrogation
2 the defendant stated that the home-made explosive devices were
3 stun grenades and did not have any fragmentation built into
4 them. The grenades were to scatter the Kenyans and to reduce
5 the chance that Kenyans would be killed in the blast.
6 3. During interview with Special Agent Gaudin of the
7 Federal Bureau of Investigation defendant stated that his
8 mother had a profound effect on his strong religious
9 upbringing. Near the age of 14 in Saudi Arabia he began to be
10 indoctrinated in conservative Islamic teachings and read
11 magazines which promoted his religious beliefs and which
12 detailed Muslim men who died fighting and went to Paradise.
13 Defendant began associating himself with others who shared his
14 conservative religious sentiments. The defendant was also
15 strongly influenced by the audio cassette teachings of Sheikh
16 Safar Abdel Alhawari, who speaks of the Kissinger promise
17 which he described as Secretary of State Henry Kissinger's
18 plan to occupy the Arabian peninsula. The defendant stated
19 that the cassette helped to solidify his resentment regarding
20 the United States presence in the Gulf area.
21 4. During interviews with Special Agent Gaudin of
22 the Federal Bureau of Investigation the defendant stated he
23 was prepared to die as a martyr "to wipe away the tears of the
24 mothers whose children had been murdered from American policy
25 around the world."
7085
1 It is further stipulated and agreed this stipulation
2 may be received in evidence as a defense exhibit at trial.
3 New York, June the 4, 2001. Signed by counsel for the United
4 States and defendant al-'Owahli. Again that would be exhibit
5 BB.
6 THE COURT: Received.
7 (Defendant's Exhibit BB received in evidence)
8 MR. BAUGH: At this time, your Honor, pursuant to the
9 discussion we had at the luncheon break we would suggest we
10 take a short break so we can cue up. Also we had prepared the
11 redacted item that you wanted, that you told us we had to do
12 and I prepared to give it to the United States for their
13 inspection and the Court as well.
14 THE COURT: All right. We'll take a recess at this
15 point.
16 (Recess)
17 (In open court; jury not present)
18 THE COURT: Please be seated.
19 Mr. Baugh, when you finish this, will you be finished
20 for the day?
21 MR. BAUGH: That would be a very close point, your
22 Honor. This is about a forty minute tape that will take us
23 through to about a few minutes after 4. I would ask that we
24 end that. We'll have to shut down until tomorrow morning.
25 THE COURT: Then we'll have or charging conference
7086
1 beginning at 4:30 and by that time I will have completed
2 reviewing the tape I'm looking at now.
3 MR. FITZGERALD: Your Honor, we object to exhibit W
4 which is a 1999 Iraq mortality survey. Obviously it's
5 something that was done, a survey completed after the offense
6 and did not inform al-'Owahli's participation in the offense.
7 It goes to the consistency of showing the mortality rates.
8 THE COURT: Beside which you've had so much about the
9 mortality rates, infant mortality rates in Iraq and I take it
10 the government is not going to be contesting the present
11 testimony with respect to infant mortality in Iraq.
12 MR. FITZGERALD: We're not conceding, we're not
13 contesting. It's an issue not germane.
14 THE COURT: Therefore, it seems to me this is
15 irrelevant and redundant.
16 MR. BAUGH: If you might, your Honor, the 1999 test
17 was the last survey done. Further, if you will look at the
18 last three pages there are graphs that based on UNICEF reports
19 which track -- first of all, the last one, the green line on
20 the graph shows the underside death rate from 1980 through the
21 present where it should be, it shows about 40 per thousand
22 dropping down to 19 --
23 THE COURT: You want to introduce the last three
24 pages?
25 MR. BAUGH: The rest of it is all it does is lead up
7087
1 to that. It is the methodology, it's the survey, and it shows
2 that these numbers are accurate.
3 MR. FITZGERALD: Your Honor, I still object on the
4 same ground.
5 THE COURT: Yes, sustained.
6 MR. BAUGH: Your Honor, may I have the last three
7 pages. If that's all I can get, that's all I can get.
8 THE COURT: I asked. I was focusing the issue. I
9 wasn't suggesting that that would resolve the matter.
10 MR. BAUGH: It is corroborative of Mr. Halliday's
11 testimony.
12 MR. FITZGERALD: Judge, Mr. Halliday's testimony is
13 already coming in twice, and then now we have a third version
14 of it.
15 THE COURT: Objection sustained.
16 MR. BAUGH: Your Honor, may I make an objection? You
17 allowed the United States to present victim impact testimony
18 for two days, and we are trying to get this through even
19 faster.
20 THE COURT: You think it was cumulative?
21 MR. BAUGH: Your Honor, even though I didn't agree
22 with the tone in which the objection was made -- Mr. Cohn made
23 an objection at the conclusion --
24 THE COURT: The objection is sustained. Let's bring
25 in the jury. The defendants have been given extraordinary
7088
1 latitude, extraordinary latitude. Bring in the jury.
2 (Jury present)
3 THE COURT: Ladies and gentlemen, the next order of
4 business is another videotape and I'm told that the acoustics
5 are improved if you use a head set, and, therefore, if you
6 wish to use a head set, they're available. The date and
7 auspices of what it is that you're playing.
8 MR. BAUGH: Yes, your Honor. We would then offer
9 exhibit X, a tape recorded conversation conducted with Dennis
10 Halliday on May 21st of this year as Defendant al-'Owhali's X.
11 (Defendant's Exhibit X received in evidence and
12 played)
13 THE COURT: I don't think the jury is hearing this.
14 MR. BAUGH: The jury can't hear it? Do the headsets
15 work at all? Some work and some don't.
16 THE COURT: The side the bulb has to be facing
17 towards me and the indicator has to be on the middle. The
18 button has to be in the middle. Let's try it again.
19 MR. BAUGH: We'll try. If you want us to stop it, we
20 will, your Honor. Thank you.
21 (Continued playing)
22 (Continued on next page)
23
24
25
7089
1 MR. BAUGH: Your Honor, we should cut the tape
2 pursuant to your Honor's ruling.
3 THE COURT: Yes.
4 MR. BAUGH: Your Honor, the remaining exhibits are
5 the document?
6 THE COURT: Yes.
7 MR. BAUGH: We have the 18-minute tape that you have
8 now and the tape that is uncontested and Mr. Cohn reading some
9 more, his stipulation. I don't believe the United States and
10 Mr. Cohn have worked out their stipulation as yet.
11 If the Court has reviewed the 18-minute tape, we
12 would like to show that and we would move to rest for the day.
13 THE COURT: Well, I have seen the first five minutes
14 of it, but I haven't --
15 MR. BAUGH: Or we can show it tomorrow morning, if
16 you would rather.
17 Thank you. We would offer at this time the Halliday
18 tape.
19 THE COURT: Why don't we call it a day and we'll
20 resume tomorrow. And let me say another word about the
21 timing. Understanding you have to have some leeway, because,
22 as you know, things -- we can't measure these things with
23 mathematical precision, my understanding is, as Mr. Baugh has
24 just suggested, that the defendants will rest tomorrow and
25 that both sides will rest tomorrow, and so the bulk of
7090
1 tomorrow will be devoted to closing arguments and you will
2 begin your deliberations Wednesday morning in all probability.
3 Wednesday we'll sit until 3:00. Thursday we'll sit
4 the full day. We will not sit on Friday -- I had forgotten, I
5 apologize, we will not sit on Friday -- and continue
6 deliberations on Monday. We're going to make every effort to
7 have some break, some hiatus, time off, between the conclusion
8 of these proceedings and the commencement of the proceedings
9 with respect to K.K. Mohamed.
10 We know we're putting you through a very rigorous
11 schedule and I want you to know we really appreciate that, and
12 we're adjourned until tomorrow morning at 9:30.
13 (Jury not present)
14 If Mr. al-'Owhali would rather return, he may do so.
15 Otherwise, we'll take a 15-minute recess and proceed with the
16 charging conference.
17 MR. BAUGH: I don't know if my client even had the
18 opportunity or wants to be here at 4:30.
19 THE COURT: That's what I'm asking.
20 MR. BAUGH: Do you want to be here?
21 THE COURT: Why wait until 4:30?
22 MR. BAUGH: To start the charge conference? We can
23 do it either way.
24 MR. COHN: Does your Honor mean, why wait until 4:30
25 to make a decision about whether Mr. al-'Owhali stays?
7091
1 THE COURT: The remaining business is for me to
2 listen to the, I think, 13 minutes I have left of that tape,
3 make a ruling as to its admissibility, and then proceed with
4 the charging conference.
5 MR. BAUGH: That's it.
6 THE COURT: And if Mr. al-'Owhali wishes to remain
7 for the charging conference, he may do so. If he wishes to
8 return now, he may do so.
9 MR. BAUGH: Thank you.
10 MR. RUHNKE: What time do we adjourn to start the
11 charge conference?
12 THE COURT: Quarter after 4.
13 MR. FITZGERALD: Your Honor, for the record, there's
14 one more videotape the defense is offering to which the
15 government is not objecting, and that's the Koran and the
16 Kalashnikov videotape. But that you do not need to review.
17 THE COURT: How long is that?
18 MR. BAUGH: About 50 minutes. That's our last thing
19 in the morning. That's on the history of Bin Laden and al
20 Qaeda.
21 THE COURT: All right. So that closing statements
22 will likely begin?
23 MR. BAUGH: Around noontime.
24 THE COURT: Very well. Okay.
25 (Recess)
7092
1 THE COURT: I have viewed the tape and I have some
2 comments and some questions. The tape has Halliday again, so
3 it will be Halliday for the third time saying essentially the
4 same thing, and it also has the clip from "60 Minutes" with
5 Madeleine Albright, which the jury has already seen. And then
6 there are the photographs of the malnourished children, which
7 the jury has also seen.
8 Apart from that, this is a film produced by a
9 coalition of religious leaders urging the end of the Iraq
10 embargo because "to kill innocent people is against God's
11 law," and I have a number of problems with it. One is the
12 repetitious nature of it. My question is, what is added to
13 what has already before the jury by the playing of these 18
14 minutes?
15 MR. BAUGH: Your Honor, if I might, your Honor. The
16 18 minutes of the "Silent Weapon" tape do indicate a different
17 perspective than that which has been put forward with the
18 other embargo tapes. I will concede, as the Court has
19 indicated, that there is some repetition. There are some
20 original photos in this tape and there are some different
21 perspectives. However, I hope the Court understands that what
22 I'm doing is I'm not trying to be repetitious, it's just that
23 whenever you do a death case, when you lose one -- I have lost
24 one -- you constantly kick yourself saying maybe I should have
25 done this, maybe I should have done more here, I should have
7093
1 done more here, and that bedevils you for years afterwards.
2 I can tell you I have had a lot of reservations. I
3 was up until early this morning wondering, because we were
4 pulling things we didn't want to use. We had many tapes we
5 pulled out because we want to cut to the issue. But at the
6 same time you have this fear that if I get enough in, they
7 will understand it, they will look at it; maybe if you put it
8 from one perspective, you be put it from another, they can get
9 it.
10 I would ask the Court for an 18-minute gap of leeway.
11 The BBC tape is not about this at all. There are some
12 different perspectives in this tape, I think you will agree,
13 than the other that we have seen on the situation.
14 I would also remind the Court --
15 THE COURT: I'm certainly not going to allow Halliday
16 and the Albright clip again. That's pure repetition.
17 MR. BAUGH: That is pure repetition and it just comes
18 with it and we don't have the capability to edit -- if we can
19 cut it out, fine. If you want me to cut it off, I'll have
20 somebody do it. Believe me, I'll find somebody to get it
21 done.
22 THE COURT: But apart from what's left from that is a
23 plea by bishops and other clergymen for the ending of the
24 embargo because killing innocent people is against God's law.
25 Now, would we permit that testimony live? Would we
7094
1 permit a theologian to testify concerning his opposition to
2 the Food For Oil Program and the embargo?
3 MR. BAUGH: Throughout the guilt phase of this case,
4 which of course the United States has adopted for the penalty
5 phase, words like "evil" and "heinous" have been used for the
6 acts committed in Nairobi. And they were. I will concede
7 that. However, I think it is imperative that the jury
8 understand that one thing that is different about this case is
9 that we have a defendant charged with a case who -- when I
10 used to work in the U.S. Attorney's Office, the rule of thumb
11 was there are three reasons for all crime: Passion, greed and
12 crazy. This motivation is none of the above.
13 Mr. Clark has talked about --
14 THE COURT: It was lust, greed and malice during the
15 voir dire.
16 MR. BAUGH: What, malice?
17 THE COURT: That he was not motivated by lust, greed
18 and malice.
19 MR. BAUGH: That's right. There's a completely
20 different motivation. I think that is a very determinative
21 factor. I think it is something the jury should understand --
22 that the position that my client and even Usama Bin Laden has
23 about what is going on over there and every fatwah mentions
24 the situation in Iraq, and Mr. Clark says that people over
25 there and in Europe are talking about this daily, that it
7095
1 is -- the fact that a greater cross section than just the
2 people who talk to it now are talking about this I believe
3 does add a dimension, and it is an 18-minute dimension.
4 Do I believe that people would come in and they would
5 say that I am opposed to this, I'm opposed to the situation in
6 Iraq which motivated the defendant because I view it this way,
7 yes, I would believe it admissible. We're not talking about
8 the lawfulness of the death penalty. We're not talking about
9 the lawfulness of the government's actions in arresting the
10 defendant the way they did. We've talking about the impact
11 and lawfulness of the act that motivates him for one, two,
12 which caused him to have --
13 THE COURT: Can I just interrupt you?
14 MR. BAUGH: Yes, sir.
15 THE COURT: How much time was spent in the guilt
16 phase on the Iraq embargo?
17 MR. BAUGH: Every fatwah that was read talked about
18 the situation with the sanctions and the death of Iraqis. The
19 ABC, 1600, every one that we've read -- I'm fatwahed out --
20 every one of them lists that and Palestine and others as the
21 motivation.
22 Now, we went through and said which one of the
23 factors is going to be the easiest to understand without
24 getting into a lengthy philosophical or political debate.
25 That is the one that we could get into and that's why we're
7096
1 offering it.
2 THE COURT: What is the government's position on
3 this?
4 MR. FITZGERALD: Your Honor, we object. I think
5 there's been far more than 18 minutes of leeway already. The
6 defendant Al-'Owhali never once mentioned the embargo in his
7 statements of his motivations at any time.
8 Your Honor, besides what's redundant, there are
9 morbid photographs. What we've done is we've had multiple
10 witnesses talking about the embargo, many things dated after
11 the defendant's role in the offense. He did not cite the
12 embargo and I think we've had far more than 18 minutes of
13 leeway to date.
14 MR. BAUGH: Your Honor?
15 THE COURT: Yes.
16 MR. BAUGH: This courtroom today heard about, from
17 tapes and from testimony, that over a million people have
18 died, and we have also heard Bin Laden's interview three
19 months before the bombing where the government alleges --
20 THE COURT: I'm going to allow it, provided there is
21 deleted in its entirety the Halliday excerpt and the Albright
22 excerpt.
23 MR. FITZGERALD: Just without the morbid photographs?
24 THE COURT: And the photographs.
25 MR. BAUGH: Which photographs?
7097
1 THE COURT: Of the children, the malnourished
2 children. We've seen that now.
3 MR. BAUGH: Okay. I would ask the Court, my client
4 is charged -- one of the issues here is absence of remorse.
5 THE COURT: You know, I ruled in your favor. I have
6 ruled that everything that isn't explicitly duplicative of
7 what this jury has seen and heard today may come in, including
8 the closing statement that more people have died as a result
9 of the embargo than died as a result of mass warfare.
10 You are quarreling with my ruling?
11 MR. BAUGH: Yes, sir. Your Honor, I would ask for
12 the same leeway with the same intensity that you answered Mr.
13 Cohn's complaint about victim impact. If the same rationale
14 prevails, if there is equality in this courtroom, then we
15 should be given the same right to repetition or
16 duplicativeness.
17 THE COURT: There is not equality in this courtroom.
18 There is a leaning over backwards in favor of the defendant
19 which is palpable.
20 MR. FITZGERALD: Your Honor, I understood from a
21 conversation, I may have misunderstood with counsel, that the
22 tape was going to stop after a certain hospital scene. If
23 we're including the bishop making the comment to a meeting or
24 the Pope condemning the sanctions or the written statement --
25 MR. BAUGH: We're stopping before that. When the
7098
1 Bishop Gumbelston of Detroit comes up, we're stopping before
2 him.
3 THE COURT: You are eliminating the reference to the
4 appeal by the Pope?
5 MR. BAUGH: Yes, definitely. I'm sorry. I
6 misunderstood. We were going to stop right after the hospital
7 scenes, before we get into the theology of it.
8 THE COURT: All right. I believe that resolves the
9 matter. And the next order of business is the --
10 MR. BAUGH: I was advised that I never moved the 60
11 Minutes tape in.
12 THE COURT: That's received to the extent played to
13 the jury, which I think is the entirety.
14 MR. BAUGH: Exhibit S.
15 THE COURT: Exhibit S is received.
16 (Defendant Al-'Owhali Exhibit S received in evidence)
17 THE COURT: Is there anything else before we go to
18 the charging conference?
19 MR. BAUGH: My client wants me to say something.
20 THE COURT: All right. You have been given a copy of
21 the proposed charge.
22 MR. BAUGH: Yes, your Honor.
23 THE COURT: And of the proposed special verdict form.
24 I will mark the charge Court Exhibit I of today's date and the
25 special verdict form Court Exhibit 2 of today's date. On what
7099
1 page of the charge is the first comment?
2 MR. BAUGH: Page 5.
3 MR. FITZGERALD: Page 3 for the government.
4 THE COURT: Page 3.
5 MR. FITZGERALD: And that engages the issue of the
6 standard, the weighing standards, whether it should be
7 sufficiently outweighed versus proof beyond a reasonable
8 doubt.
9 THE COURT: Yes.
10 MR. FITZGERALD: Your Honor, I would rely upon the
11 government's submission last week citing to the Fifth Circuit
12 and the Eleventh Circuit, and also noting the Supreme Court
13 case law that has upheld state statutes, where the standard
14 was reversed or where a defendant had to convince that the
15 mitigating factors outweighed the other factors and the clear
16 language of the statute.
17 THE COURT: Your position with respect to that, that
18 issue is preserved. I think we have fully exhausted it and
19 your objection is overruled.
20 Page 5?
21 MR. BAUGH: Yes, your Honor. In the bracketed
22 section.
23 THE COURT: Yes.
24 MR. RUHNKE: Your Honor, do I have a stake in this,
25 also? I think I do.
7100
1 THE COURT: Yes.
2 MR. RUHNKE: On page 4, your Honor, where you discuss
3 the --
4 THE COURT: On what page?
5 MR. RUHNKE: 4, under "Evidence."
6 THE COURT: Yes.
7 MR. RUHNKE: The reason I was being quiet was you
8 went by page 4 to page 5.
9 THE COURT: Yes. Go ahead.
10 MR. RUHNKE: I think you should say "you may consider
11 any evidence presented during the guilt phase, unless that
12 evidence was specifically limited to other defendants." There
13 were certain evidence that was admitted, for example, only
14 against my client.
15 THE COURT: Except evidence?
16 MR. RUHNKE: That was specifically --
17 THE COURT: Received solely against -- it was
18 received against Al-'Owhali. That's an appropriate limitation
19 insofar as you are concerned. Gaudin's testimony was received
20 solely against Al-'Owhali. Were there other instances where
21 testimony was received --
22 MR. BAUGH: Yes.
23 MR. RUHNKE: My client's statement.
24 THE COURT: "Except evidence received solely against
25 someone other than Al-'Owhali."
7101
1 MR. BAUGH: Your Honor, might I suggest that in so
2 drafting, that rather than making it an addition to that
3 sentence, you just start a new sentence at the end of that
4 paragraph to the effect that "no evidence offered during the
5 guilt phase solely against a named defendant other than
6 Mr. al-'Owhali may be considered"?
7 THE COURT: That's a literary stylistic thing. I
8 will consider it.
9 MR. BAUGH: Thank you, sir.
10 THE COURT: I appreciate it and I will consider it.
11 MR. BAUGH: Yes. I said "thank you."
12 THE COURT: But the substance is the same.
13 All right. Page 5, somebody?
14 MR. BAUGH: Yes.
15 THE COURT: You want the bracketed?
16 MR. BAUGH: Yes, I wanted the bracketed section
17 except the last line there, "but again, the defendant's
18 decision not to testify should in no way bear on your
19 deliberations in this regard." I think that "should" is
20 unnecessarily weak.
21 THE COURT: What would you prefer?
22 MR. BAUGH: Again, the defendant's decision not to
23 testify may not be or may not bear on your deliberations.
24 THE COURT: Not enter into?
25 MR. BAUGH: That's fine. You're going to have to do
7102
1 some -- I don't want to suggest the tone, but I think it
2 should be more emphatic.
3 THE COURT: Is the first part of that sentence
4 accurate? Is the government going to have introduced it made
5 arguments concerning the defendant's lack of remorse?
6 MR. FITZGERALD: Yes, from the photograph we
7 introduced at the guilt phase.
8 THE COURT: All right. So the brackets come off and
9 I'll make that language change.
10 MR. COHN: Lack of remorse?
11 MR. BAUGH: That's the lack of remorse?
12 MR. FITZGERALD: The photographs and statements
13 introduced at the guilt phase show a lack of remorse.
14 MR. BAUGH: I have an objection, your Honor. I think
15 for the Court to take that photograph and that statement and
16 say that that is evidence, that that was evidence the
17 government introduced of lack of remorse is --
18 THE COURT: That was in the government's opening
19 statement, right? The government showed the photograph with
20 respect to lack of remorse?
21 MR. COHN: Your Honor, will you hear from me on this
22 in violation --
23 THE COURT: Yes. Yes.
24 MR. COHN: Your Honor, I think there's a case, United
25 States v. Davis, if I'm not mistaken, in which the Court there
7103
1 discusses, in terms of lack of remorse, that it has to be
2 persistent and continuous, and I'm paraphrasing that. It's
3 not a dead accurate quote. And the picture that was shown
4 was, I believe, on the 20th of August in 1998 and that just
5 shows, at best, if you interpret it in the light best to the
6 government, that there was some lack of remorse on that day.
7 The failure to connect that to his act to this date I think
8 makes that fallible and, in fact, I believe it should not be
9 referred to on summation.
10 We'll give you the cite. Ms. Gasiorowski tells me it
11 is Davis.
12 THE COURT: Mr. Fitzgerald?
13 MR. FITZGERALD: Your Honor, I would like to look at
14 that case to see what it says, but I think it is entirely
15 appropriate to point out to the jury on August 20th, which was
16 almost two weeks after bombing and after he saw the carnage
17 that was wrought, and after he was in the hospital with his
18 own victims, surely the scope of what he had done was fully
19 upon him, and he showed absolutely no remorse at that time. I
20 think that's entirely appropriate and I think it's fair
21 argument.
22 Whether this sentence is in or out is up to the
23 defense. I think as a collective whole, it's fine. If they
24 want to take out that whole sentence, that's fine, too. But I
25 think you need to point them and say that's the government's
7104
1 argument with regard to remorse and don't consider his failure
2 to testify.
3 THE COURT: I don't think that there is a temporal
4 factor with respect to lack of remorse. August 20th is, as
5 the government points out, almost two weeks after the event,
6 and there is no evidence which suggests a change in attitude.
7 MR. COHN: Your Honor, that in fact is arguing sub
8 silentio silence.
9 THE COURT: No.
10 MR. COHN: If that's not redundant.
11 THE COURT: It's arguing, rather, continuity, absent
12 some evidence of a change of circumstance.
13 MR. BAUGH: Will the Court --
14 MR. COHN: I don't think given a two-year history and
15 given, despite the fact that it was, what, 12 days after the
16 bombing or 13 days after the bombing, that there was no time
17 for sober reflection. He was under constant pressure from the
18 government to cooperate; that the reasons for it were still
19 that he --
20 THE COURT: I'll reserve and I'll look at that case.
21 MR. COHN: Davis is cited in our death penalty memo,
22 your Honor.
23 THE COURT: Which death penalty memo?
24 MR. COHN: We'll get you the cite.
25 MR. BAUGH: Also, your Honor, with the Court's
7105
1 understanding, the Court's logic, if you will still entertain
2 it, we would ask that that paragraph within the brackets be
3 deleted, because if we get one part with the other part, it
4 does get unnecessarily complicated. So I would say that if
5 you delete the paragraph, it's not a problem. The rest of it
6 reads fine.
7 MR. FITZGERALD: Your Honor, we're --
8 THE COURT: I'm confused now. Assume that I rule in
9 the government's favor with respect to its ability to argue
10 lack of remorse based on the photograph.
11 MR. BAUGH: Yes.
12 THE COURT: You want the paragraph in or out?
13 MR. BAUGH: Out.
14 THE COURT: Out. Anybody want it in? It's out.
15 MR. BAUGH: Thank you.
16 THE COURT: Next page on which there is a comment?
17 MR. FITZGERALD: Page 8.
18 THE COURT: Page 8.
19 MR. FITZGERALD: It's the continuing sentence from
20 the bottom of 7 to 8. And I recognize we want to simplify,
21 I'm just concerned that if we tell the jury if they find one
22 gateway factor, not to consider the other, if an issue should
23 ever come up on appeal.
24 THE COURT: We debated that issue at great length in
25 chambers. You want them to find both?
7106
1 MR. FITZGERALD: There are four, but they are not
2 terribly complicated in comparison to what the jury has
3 resolved in the past and will otherwise resolve.
4 THE COURT: So that we ask that you -- we'll make it
5 similar to the language we used on the guilt phase, that they
6 answer all four.
7 All right. And change the sentence which runs over
8 to the top of page 8 and change the language of the special
9 verdict form with respect to gateway factors, which will tell
10 them they need only find one but asks them to find with
11 respect to all four.
12 Next page?
13 MR. FITZGERALD: Nothing until page 25 for the
14 government.
15 THE COURT: Anything before page 25?
16 MR. RUHNKE: Your Honor, I've got a note on page 19.
17 THE COURT: Just a technical thing on page 10. The
18 next to the last sentence under 1, there should not be
19 parentheses around the A after 2332. A blue book-type
20 correction.
21 Now on page 25?
22 MR. RUHNKE: 19, your Honor. The only comment I have
23 is I have read it under the second sentence on page 19, which
24 talks about the context in which the future danger may be
25 considered. I don't know if this sentence clearly
7107
1 communicates the concept that your Honor is trying to get
2 across.
3 THE COURT: What sentence are you talking about?
4 MR. RUHNKE: Second sentence on page 19, which is
5 headed "Non-statutory Aggravating Factors."
6 THE COURT: On page 19? We're looking at different
7 topics.
8 MR. RUHNKE: The sentence begins, notes that the --
9 THE COURT: Oh, no.
10 MR. RUHNKE: I know the concept that your Honor is
11 attempting to communicate, which is that in evaluating future
12 danger, it is to be evaluated in the context of someone being
13 in a prison for the rest of their life, but I'm not sure that
14 that sentence communicates that concept clearly.
15 THE COURT: How would you have it read?
16 MR. RUHNKE: That the non-statutory aggravating
17 factors of future dangerousness must be evaluated in light of
18 the fact that the defendant, if spared a sentence of death,
19 will spend the rest of his life in a United States prison.
20 THE COURT: Say that again.
21 MR. RUHNKE: I did not have it written out.
22 THE COURT: But you know the sentence said "only in."
23 You are eliminating the "only in"?
24 MR. RUHNKE: I don't dispute that you are trying to
25 communicate that concept. I'm not sure, as I read that the
7108
1 first time, and I'm very well aware of what the issue is -- I
2 read it in terms of, you can only consider future danger if
3 you don't sentence him to death, and that's how I read it. I
4 was confused. So I drew that conclusion from it. If the
5 government's content with that, that's all right.
6 MR. FITZGERALD: Content with, I'm sorry? If the
7 government is content with the alternative?
8 MR. RUHNKE: If the government is --
9 THE COURT: Maybe it would be helpful if the reporter
10 read back what you suggested.
11 (Record read)
12 MR. FITZGERALD: Your Honor, I would object on two
13 grounds. I think the language "if spared" is less than
14 neutral and sounds more of an argument as to why jail is
15 better than death. I think if we're trying to get across the
16 concept, we could use the language as is or maybe "considered
17 by you because the defendant would be sentenced to a mandatory
18 sentence of life imprisonment without parole if he is not
19 sentenced to death." I don't think we ought to talk about if
20 he's spared.
21 THE COURT: I think the language that exists now is
22 preferable to the suggestions and indeed is, I think in some
23 respects, more favorable to the defendant than that suggested
24 by Mr. Ruhnke.
25 Next page?
7109
1 MR. BAUGH: A point was brought up -- I think I sort
2 of agree with it -- on page 21, your Honor, when we get to the
3 mitigating factors.
4 THE COURT: Yes.
5 MR. BAUGH: And I must take responsibility for this,
6 but I proposed that we stop referring to my client as
7 Mr. al-'Owhali and we start referring to him as defendant.
8 That is probably the way I drafted it. I would ask that, if
9 it's not too much of a burden, we can --
10 THE COURT: You want to strike "whether the
11 defendant" and make it "Mr. al-'Owhali"?
12 MR. BAUGH: Please. "Further, it is Mr. al-'Owhali's
13 burden to establish a mitigating factor" --
14 THE COURT: We'll do that.
15 MR. BAUGH: On the mitigators themselves we can leave
16 it the way it is, but in the Court's portion I think that's
17 the best way to do it.
18 Now when we get over here to page 23, it does start
19 using Mr. al-'Owhali again.
20 THE COURT: All right. It varies. It's not uniform
21 throughout.
22 MR. BAUGH: I understand.
23 THE COURT: Since he is the only defendant at this
24 stage, it is not as significant as it was in stages of the
25 case in which there are multiple defendants. We will try to
7110
1 change the defendant to Mr. al-'Owhali. I can't promise that
2 we'll catch it every time.
3 MR. COHN: The command is find and replace.
4 THE COURT: I didn't hear you.
5 MR. COHN: I said the command on the computer is find
6 and replace. You can do it.
7 THE COURT: Yes, but that sometimes results in
8 mechanical errors because of the context of the whole
9 sentence.
10 MR. COHN: Okay.
11 THE COURT: Okay. Next page?
12 MR. FITZGERALD: Page 25, your Honor, the first new
13 paragraph.
14 THE COURT: Yes.
15 MR. FITZGERALD: The latter part of the second
16 sentence, I think if you say that the decision the law leaves
17 entirely to you and that you must agree beyond a reasonable
18 doubt and unanimously and is yours as individuals to make.
19 We don't need to invite someone that no juror is ever
20 required by the law to impose a death sentence.
21 MR. BAUGH: Mr. Fitzgerald, your voice dropped and we
22 missed some of it.
23 MR. FITZGERALD: I was just objecting to the latter
24 half of the second sentence of that paragraph.
25 MR. BAUGH: The first sentence of the first full
7111
1 paragraph.
2 MR. FITZGERALD: Second sentence, first full
3 paragraph.
4 MR. BAUGH: "Remember that all 12 jurors" --
5 THE COURT: Overruled. Next.
6 MR. FITZGERALD: I have nothing until 27.
7 MR. RUHNKE: Your Honor, on the same page, the next
8 paragraph.
9 THE COURT: Page 25?
10 MR. RUHNKE: Yes, where you discuss about the process
11 of weighing aggravating and mitigating factors, the second
12 full paragraph on that page.
13 THE COURT: Yes.
14 MR. RUHNKE: I had asked for a particular charge on
15 that issue. It was my charge number, request to charge number
16 8, and what I would ask the Court to do at this point is to
17 add the following sentence: "In carefully weighing the
18 various factors at issue in this case, you are called upon to
19 make a unique, individualized judgment about the
20 appropriateness of sentencing Mr. Mohamed to death." I'm
21 sorry, Mr. al-'Owhali. I'm reading from my charge requests.
22 MR. BAUGH: Thank you.
23 MR. RUHNKE: It was my request number 8, page 16.
24 THE COURT: Where would you put that?
25 MR. RUHNKE: Where you say that, "You are not just
7112
1 counting factors. Consider the weight and value of each
2 factor." And the statement would then follow: "In carefully
3 weighing these various factors," to make it editorially
4 smoother, "you are called upon to make a unique,
5 individualized judgment."
6 THE COURT: You would add that at the end of the
7 second full paragraph?
8 MR. RUHNKE: Yes, your Honor.
9 THE COURT: Give me the language again.
10 MR. RUHNKE: The language is actually in my request
11 to charge, but I'll repeat it again.
12 THE COURT: "In carefully weighing the various
13 factors at issue in this case, you are called upon to make a
14 unique, individual judgment about the appropriateness of
15 sentencing Mr. al-'Owhali to death."
16 MR. RUHNKE: Yes, your Honor.
17 THE COURT: Any objection?
18 MR. FITZGERALD: Yes, Judge.
19 THE COURT: Because?
20 MR. FITZGERALD: Because we're singling out the one
21 sentencing to death. I think it's a unique, individualized
22 judgment as to the appropriate sentence, life imprisonment or
23 death.
24 THE COURT: Okay. We can change that "about the
25 appropriateness of the sentence which Mr. al-'Owhali should
7113
1 receive."
2 MR. FITZGERALD: Yes.
3 MR. RUHNKE: Your Honor, if we're going to compromise
4 that, which I think really takes the thrust of it out --
5 THE COURT: Excuse me.
6 MR. RUHNKE: -- respectfully --
7 I think if we are to reach that compromise, which I
8 think makes it much more -- which compromises the thrust of it
9 out, I would ask that the following sentence, which is at the
10 end of my request number 8, be included, which is at the
11 bottom of page 16, top of page 17 of my request number 8,
12 which is: "At this stage of the proceedings, you are not
13 simply called upon to find relevant factors. You are called
14 upon to decide whether Mr. al-'Owhali should live or die."
15 THE COURT: No, I think we have that enough. Just so
16 that it is clear, then, we'll add on page 25 as a last
17 sentence at the end of the second full paragraph the language,
18 "In carefully weighing the various factors at issue in this
19 case, you are called upon to make a unique, individual
20 judgment about the appropriateness of the sentence which
21 Mr. al-'Owhali should receive."
22 MR. RUHNKE: Can we try adding at the end of that "a
23 sentence of life or death"?
24 THE COURT: No.
25 MR. RUHNKE: That's what they have to do, your Honor.
7114
1 THE COURT: Yes, they know that. I think they know
2 that.
3 Does Al-'Owhali have any objection to that in light
4 of the absence of any attempt to personalize or humanize him?
5 MR. BAUGH: Your Honor, believe me, I think some of
6 the things we've been doing today have been an attempt to
7 humanize it.
8 THE COURT: There is no objection to that on
9 Al-'Owhali's part?
10 MR. BAUGH: No, your Honor.
11 THE COURT: We'll put that in.
12 MR. FITZGERALD: At the bottom of page 25, your
13 Honor, three lines up from the bottom after the word,
14 "Similarly, all of you may find that a particular aggravating
15 factor sufficiently outweighs --"
16 THE COURT: Yes.
17 MR. FITZGERALD: I think that's one or more of you.
18 The jurors have to be unanimous to impose a death sentence
19 that each believes the aggravating factors outweigh the
20 mitigating factors, but they don't have to be unanimous as to
21 how they individually do the way, as long as they agree on the
22 result. In other words, if one juror or three jurors find a
23 particular aggravating factor itself justifies a death
24 sentence, here, beyond a reasonable doubt, and other jurors
25 find that different factors they all agreed existed, added
7115
1 together, sufficiently outweigh, then the jury can vote for
2 the death sentence. If they each are convinced the death
3 sentence is appropriate, they have agreed on the factors, they
4 don't have to agree on how they get to the final result.
5 THE COURT: You are saying that if six jurors think
6 that a particular aggravating factor sufficiently outweighs
7 all the mitigating factors, focusing on a particular
8 aggravating factor, and six jurors agree that a different
9 aggravating factor sufficiently outweighs all the mitigating
10 factors, that the jury may find in favor of the death penalty?
11 MR. FITZGERALD: Yes, Judge.
12 THE COURT: And what is the authority for that?
13 MR. FITZGERALD: Your Honor, I'll find some. We're
14 pretty -- we've checked that. I don't know of authority to
15 the contrary.
16 THE COURT: I will reserve on that. I have to tell
17 you that my overall impression is that there has to be
18 unanimity with respect to every decision made in this process,
19 and that will be my ruling absent some showing to me of
20 persuasive precedent or reasoning to the contrary.
21 MR. FITZGERALD: The last comment from the government
22 is on page 27.
23 THE COURT: Yes.
24 MR. FITZGERALD: I think, your Honor, that we will
25 tell the jury, in essence, on 27 what the result will be if
7116
1 they don't reach a unanimous conclusion, which is what was
2 stated in Jones we're not required to do. I submit if we
3 state to the jury if you unanimously find death, return death,
4 I don't think we need to tell them what happens if they don't
5 find death but don't unanimously agree on life in prison.
6 That comes up in the special verdict form as well. I
7 remind the Court of the Jones language that says that there is
8 a significant government interest in trying to get a unanimous
9 decision one way or the other and that we don't, obviously, in
10 the guilt trial put a box for a deadlock, but we do deal with
11 a deadlock once when it arises.
12 MR. BAUGH: I don't see in the instruction where this
13 issue comes up that causes the government concern. On page
14 27, I'm assuming there's something in here.
15 MR. FITZGERALD: Second paragraph.
16 MR. BAUGH: Second paragraph.
17 MR. FITZGERALD: And then it is probably more clear
18 in the special verdict form.
19 MR. BAUGH: Did you want to hear from me now, Judge,
20 or did you want to wait?
21 THE COURT: Let me re-read it first.
22 MR. BAUGH: Yes, sir.
23 (Pause)
24 THE COURT: You would just delete that paragraph?
25 MR. FITZGERALD: Yes, Judge.
7117
1 THE COURT: Mr. Baugh?
2 MR. BAUGH: Your Honor, I would submit that this
3 paragraph does not run afoul of Jones. It is a point that the
4 Court is trying to make to the jury, and that is, there are
5 only two options. And if the Court is going to read that last
6 sentence in that paragraph, which I believe the Court is
7 duty-bound to read, that the Court has no other sentencing
8 option.
9 You have to explain the options, and I'm assuming
10 that the first part of that paragraph merely goes to lead into
11 that last sentence, and without that sentence, that paragraph,
12 that last sentence doesn't make sense and the Court has to
13 read that last sentence. The jury must know that this Court
14 has no option.
15 THE COURT: Jones was a case in which there was a
16 request for a specific instruction as to the consequences of
17 their being deadlocked, and I understand the objection and --
18 MR. FITZGERALD: One thing.
19 THE COURT: Yes.
20 MR. FITZGERALD: In Jones, at page 10, footnote 5, I
21 noticed that in the prior Supreme Court case, Lowenfield v.
22 Phelps, they had used an Allen charge with the jury in a
23 capital proceeding.
24 THE COURT: Yes.
25 MR. FITZGERALD: It seems to me if the jury sends out
7118
1 a note "we cannot reach a decision," then the decision if for
2 the Court to make whether they are given an Allen charge and
3 if they are still deadlocked the jury is excused.
4 But to tell the jury capital punishment has been
5 proven appropriate beyond a reasonable doubt, or life
6 imprisonment is the appropriate punishment because the
7 government has failed to prove beyond a reasonable doubt that
8 capital punishment is appropriate, and the jury is unanimous,
9 are the two options they should be given. And then if they
10 fail to reach a verdict, we can proceed from that, but
11 otherwise, the language of Jones says it's inviting the jury
12 to not come to a unanimous conclusion.
13 THE COURT: You know, in the special verdict form in
14 the guilt phase we had, I think, on the cover "your response
15 to all questions here must be unanimous." We might do that
16 here as well so that if we are dealing with the consequences
17 of a hung jury, we will know that explicitly.
18 (Pause)
19 THE COURT: I have been reminded that the reason why
20 we didn't put "your answers to everything must be unanimous"
21 on the cover page of the special verdict form is that, with
22 respect to mitigating factors, they don't have to be
23 unanimous.
24 The other possibility may be, "For any capital count,
25 if you unanimously find that the balancing process leads you
7119
1 to the conclusion that a sentence of death is not called for,
2 the Court will then sentence Mr. al-'Owhali on that count to
3 life imprisonment without the possibility of release. The
4 Court has no other sentencing option."
5 MR. BAUGH: The problem with that, your Honor, is you
6 just shifted the entire perspective almost to a -- it sort of
7 implicitly shifts the burden by saying that the determination
8 here is whether or not he shall get a life sentence.
9 Actually, the life sentence we get like on default. So I
10 think the language that is here is the only way you can say
11 that without implying that the burden is almost on the
12 defendant to show that he should be sentenced to life in
13 prison without possibility of release.
14 "For any capital count, if you do not unanimously
15 find beyond a reasonable doubt that the balancing process
16 leads you to conclusion that a sentence of death is called
17 for" -- and that is the question, is death called for, and
18 then the rest of it sort of says, and I'm paraphrasing, then
19 you back the Court into the only other sentencing option,
20 which is life without possibility of parole.
21 If you change that from "do not unanimously found"
22 to -- you change it from negative to positive, you are going
23 to change the whole burden. When you read it yourself, Judge,
24 you will see it.
25 THE COURT: I would like to read it.
7120
1 MR. BAUGH: Yes.
2 (Pause)
3 THE COURT: I don't think it shifts the burden. I
4 think what it does is it leaves deliberately unanswered the
5 question of the consequence of lack of unanimity, and we know
6 that the consequence of a lack of unanimity with respect to
7 either option is a life sentence. But I think Jones tells us
8 that that, although that is the case, is not something of
9 which the jury should be specifically advised.
10 What else?
11 MR. FITZGERALD: Nothing other than with regard to
12 the verdict form.
13 THE COURT: Yes. Anything else with respect to the
14 charge itself?
15 All right, we'll turn, then, to the special verdict
16 form. I just want to make sure I'm dealing with the right
17 copy.
18 (Pause)
19 THE COURT: With respect to --
20 MR. RUHNKE: Your Honor, before we turn to the
21 verdict form, do I understand correctly that if your Honor has
22 declined to charge in substance particular requests submitted
23 by the defendant, that that objection is preserved and the
24 Court has denied that request?
25 I'm thinking specifically, for example, of the
7121
1 unanimity charge we just discussed. Jones is a five/four
2 decision. It could change tomorrow and --
3 THE COURT: Yes, but I make the decision today and
4 I'm bound by the five and I don't -- well, there is no point
5 arguing now whether, if the Court would change its view in
6 Jones, what consequence it would have on this.
7 With respect to --
8 MR. RUHNKE: But, your Honor.
9 THE COURT: Yes, but your objection to that change is
10 preserved, as is Mr. al-'Owhali's objection to that.
11 MR. RUHNKE: Are our objections to our particular
12 requests to charge preserved?
13 MR. COHN: Judge, the issue is really, does after
14 your charge -- after your charge, if you say, "Do you have any
15 objections?" do we really have to reiterate all our requests
16 to charge that have been denied?
17 THE COURT: But in some instances we've worked out
18 some language which I believe has satisfied both sides.
19 MR. RUHNKE: I agree with that, your Honor. That's
20 why I said that where your Honor has either not charged, or
21 not charged in substance, what has been requested, then it is
22 our --
23 MR. COHN: We are trying to maintain efficiency
24 without giving up a right for review.
25 THE COURT: Yes. Your rights are preserved.
7122
1 MR. RUHNKE: Thank you.
2 THE COURT: With respect to the gateway factors, the
3 format that we will use so that they answer all four is the
4 same as we used on page 5 with respect to the statutory
5 aggravating factors; that is, we'll say: For each of the
6 following gateway factors, please indicate which, if any, of
7 the following gateway factors you unanimously find the
8 government has proven beyond a reasonable doubt.
9 That is the mechanic we will use with respect to the
10 gateway factors.
11 MR. BAUGH: Where do you plan to put it, your Honor?
12 THE COURT: In the general direction for Section 1.
13 MR. BAUGH: In the general direction, like third
14 bullet point?
15 THE COURT: Yes. What page?
16 MR. FITZGERALD: After page 1, that issue, no issues
17 until page 15.
18 THE COURT: 15. Any defendant issues prior to page
19 15?
20 All right. What is your issue on page 15?
21 MR. FITZGERALD: I think the first option should be
22 worded differently because, again, it would advise the jury,
23 if you fail to find unanimously that death is appropriate,
24 then life results. I think we should simply say that the
25 first option should be we unanimously find that life
7123
1 imprisonment without the possibility of parole is the
2 appropriate sentence --
3 THE COURT: Yes.
4 MR. FITZGERALD: -- for the defendant for all of the
5 capital counts.
6 THE COURT: Yes.
7 MR. FITZGERALD: And the other language I think --
8 MR. RUHNKE: Your Honor, can I hear that language
9 again?
10 THE COURT: "We, the jury, unanimously find that
11 death is the appropriate sentence for defendant Al-'Owhali for
12 all of the capital counts."
13 MR. FITZGERALD: That life imprisonment -- sorry --
14 without parole. That's the first one.
15 THE COURT: Excuse me.
16 MR. FITZGERALD: The first should be that life
17 imprisonment. You said death.
18 THE COURT: Yes. "We, the jury, unanimously find
19 that life imprisonment is the appropriate sentence for
20 Al-'Owhali for all of the capital counts. We therefore return
21 a decision that he be sentenced to life imprisonment without
22 possibility of parole."
23 MR. RUHNKE: Your Honor, the difficulty with that
24 language, it implies a burden on the defense if the jury has
25 to find affirmatively life is the appropriate sentence rather
7124
1 than find that the government has failed to prove that death
2 is the appropriate sentence.
3 THE COURT: You want to reverse the order? Would you
4 be happier reversing the order?
5 MR. RUHNKE: I'm not sure exactly what you mean by
6 reversing the order, but this is an important consideration.
7 We do not have to prove that life is the appropriate sentence.
8 A jury has to just find that the government has failed to
9 establish that death is the appropriate sentence sufficiently.
10 THE COURT: The other way we could do that is to say,
11 "We, the jury, unanimously find that the government has failed
12 to prove beyond a reasonable doubt that death is the
13 appropriate sentence for Mr. al-'Owhali."
14 MR. RUHNKE: That's fine.
15 THE COURT: -- "for all the capital counts. We
16 therefore return" --
17 Is that right?
18 MR. RUHNKE: That's acceptable to me, your Honor.
19 MR. BAUGH: Yes, your Honor.
20 MR. FITZGERALD: Your Honor, the --
21 THE COURT: Give me a moment, please.
22 We'll use consistent language in the instruction
23 itself.
24 (Pause)
25 THE COURT: Yes.
7125
1 MR. FITZGERALD: Your Honor, if I could just read
2 back what it is that --
3 THE COURT: "We, the jury, unanimously find that the
4 government has failed to prove beyond a reasonable doubt that
5 death is the appropriate sentence for defendant Mohamed Rashid
6 Al-'Owhali for all of the capital counts. We therefore return
7 a decision that Mohamed Rashid Al-'Owhali will be sentenced to
8 life imprisonment without possibility of release."
9 MR. BAUGH: Excuse me, your Honor. When you change
10 the word from "any" to "all," I would suggest you leave the
11 word as "any," because we want the individual counts
12 considered. Even though they may end up considering it as a
13 group, I believe the law requires that each count be -- it
14 should be "any."
15 THE COURT: All right.
16 MR. FITZGERALD: And then the only other change, your
17 Honor --
18 THE COURT: And the next one is "all"?
19 MR. FITZGERALD: Yes.
20 THE COURT: All right.
21 MR. FITZGERALD: I just think that whenever we talk
22 about the sentence in all three options, we need to put the
23 word separately as to each count specified. There is a recent
24 case, I could find the cite but it's called Cozley, where
25 there were multiple counts included in the verdict and then
7126
1 when they found out later that some of the counts did not
2 support the verdict --
3 THE COURT: So you want we reached this decision.
4 MR. FITZGERALD: That will be sentenced to life -- in
5 the first one we could add at the end, "without the
6 possibility of release separately as to each count."
7 THE COURT: "Separately as to each Count."
8 MR. FITZGERALD: And the same thing after the second
9 option: "Sentenced to death separately as to each count."
10 And the third option -- it's there in the second sentence, but
11 the first sentence would be, "Shall be sentenced to death
12 separately as to each count listed above."
13 THE COURT: "Is the appropriate sentence separately
14 with regard to each of the following counts only."
15 MR. FITZGERALD: Yes, that's fine.
16 THE COURT: Yes. Okay. We have "separately."
17 Anything else?
18 MR. FITZGERALD: No, Judge.
19 THE COURT: Any objection to the format I have
20 proposed with respect to the certification?
21 I think, then, we're adjourned until tomorrow
22 morning.
23 MR. COHN: Your Honor, I have handed up the citation
24 to Davis.
25 THE COURT: Let me put it in the record for the
7127
1 government's benefit.
2 MR. COHN: I have given them a copy of the citation.
3 They haven't seen the rest of the note, however.
4 THE COURT: The citation is 912 F.Supp. 938, Eastern
5 District of Louisiana 1996, and the rest of the note is and
6 has been cited frequently in other cases addressing this
7 issue.
8 MR. COHN: We would remind the Court which document
9 we cite it in, your Honor.
10 THE COURT: It is cited in Al-'Owhali's reply to the
11 government's opposition to defendant's death penalty motion
12 filed November 16.
13 MR. COHN: Thank you, your Honor.
14 MR. RUHNKE: Just before we adjourn, on a scheduling
15 matter, timing matter, I understand that the government was
16 going to file something today on the implications of the South
17 Africa Constitutional Court's decision. I haven't seen it. I
18 don't know if it's been filed yet. I'm going to ask for some
19 more time to respond. I'm wondering if I could have until
20 Monday of next week to respond.
21 THE COURT: By when will Mr. Ruhnke have --
22 MR. FITZGERALD: Sometime this evening. We had to
23 run it by people and then we also wanted to read it one last
24 time before it went out.
25 MR. RUHNKE: I have no objection to receiving it
7128
1 tomorrow or Wednesday as long as I have over the weekend to
2 work on a reply to it.
3 THE COURT: You want until the 11th to reply?
4 MR. RUHNKE: Yes, your Honor.
5 THE COURT: Yes. Granted.
6 MR. RUHNKE: Thank you, your Honor.
7 THE COURT: All right. Thank you, all.
8 (Adjourned to 9:30 a.m. on June 5, 2001)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7129
1 INDEX OF EXAMINATION
2 Witness D X RD RX
3 RAMSEY CLARK............7023 7044 7055 7060
4 GOVERNMENT EXHIBITS
5 Exhibit No. Received
6 2002, 2255, 2256, 2269, 2270 and 2272 ......7002
7 DEFENDANT EXHIBITS
8 Exhibit No. Received
9 O1 .........................................7009
10 R ..........................................7016
11 S ..........................................7017
12 T ..........................................7018
13 U ..........................................7022
14 Y ..........................................7065
15 CC .........................................7066
16 FF .........................................7075
17 V ..........................................7081
18 AA .........................................7083
19 BB .........................................7085
20 X ..........................................7088
21 S ..........................................7098
22
23
24
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