26 February 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 10 of the trial.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 February 26, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
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25
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1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 Attorneys for defendant Mohamed Sadeek Odeh
9 FREDRICK H. COHN
DAVID P. BAUGH
10 LAURA GASIOROWSKI
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
11
DAVID STERN
12 DAVID RUHNKE
Attorneys for defendant Khalfan Khamis Mohamed
13
14 SAM A. SCHMIDT
JOSHUA DRATEL
15 KRISTIAN K. LARSEN
Attorneys for defendant Wadih El Hage
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17
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1 (Trial resumed)
2 THE COURT: Are there any matters that require the
3 court's attention before bringing the witness and the jury?
4 MR. FITZGERALD: One very brief matter, on which
5 there is agreement. Mr. Schmidt wanted a picture of the
6 witness al-Fadl to use to cross-examine this witness. I have
7 provided him one on the understanding that if it is offered as
8 an exhibit it will be a sealed exhibit so his picture is not
9 in the public domain.
10 THE COURT: Very well.
11 MR. FITZGERALD: I would also wish to put in this
12 transcript, which will take two minutes, and then we will be
13 ready for cross-examination.
14 THE COURT: Very well. Bring in the witness and
15 bring in the jury.
16 L'HOUSSAINE KHERCHTOU, resumed.
17 (Jury present)
18 THE COURT: Good morning.
19 JURORS: Good morning.
20 THE COURT: Mr. Fitzgerald.
21 MR. FITZGERALD: Thank you, your Honor.
22
23 (Continued on next page)
24
25
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Kherchtou - direct
1 DIRECT EXAMINATION (Continued)
2 BY MR. FITZGERALD:
3 Q. Mr. Kherchtou, I have placed before you two transcripts,
4 marked 201A-T and 217B-T.
5 A. Yes, sir.
6 Q. Have you reviewed those transcripts and translations and
7 compared them with tape recordings that you listened to at the
8 same time?
9 A. Yes.
10 Q. Are those two transcripts fair and accurate
11 transcriptions, in other words, writings, of what was said in
12 the phone conversations, including translations from Arabic to
13 English?
14 A. Yes.
15 Q. Were the voices as identified on the transcripts, are
16 those voices accurately identified as to who is speaking?
17 A. Yes.
18 MR. FITZGERALD: Thank you, your Honor. I have
19 nothing further.
20 THE COURT: Very well. We will proceed with
21 cross-examination. Mr. Schmidt.
22 CROSS-EXAMINATION
23 BY MR. SCHMIDT:
24 Q. Good morning, Mr. Kherchtou. Is that how you pronounce
25 your name?
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1 A. Yes. Good morning.
2 Q. What year was it that you first went to Afghanistan?
3 A. It was in 1991.
4 Q. And you remained in Afghanistan until some point in 1993,
5 is that correct?
6 A. Yes.
7 Q. Did you travel outside of Afghanistan or Pakistan during
8 the period from 1991 to 1993 when you left ultimately to go to
9 Nairobi?
10 A. Yes, I went to Saudi Arabia.
11 Q. Was that for a hajj?
12 A. Yes.
13 Q. Did you go with other members of the group on the hajj?
14 A. Well, I went by myself but there was a guy, he wasn't from
15 al Qaeda. His name was Dr. Montessur. He was an Egyptian.
16 Q. Was he a member of an Egyptian group?
17 A. No, he was a doctor working with al Qaeda guesthouse.
18 Q. He was a doctor, a medical doctor from Egypt?
19 A. Yes, he is a medical doctor, yes.
20 Q. He was treating members of al Qaeda and other groups in
21 Afghanistan?
22 A. Yes.
23 Q. Were there many people in Afghanistan who were not members
24 of al Qaeda?
25 A. Yes, many.
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Kherchtou - cross
1 Q. Many of these people working in roles, like as doctors,
2 nurse, and helpers?
3 A. Yes.
4 Q. You told us that when you arrived in Pakistan, I think it
5 was, at one of the guesthouses, your papers, your documents,
6 your travel documents, passport, were taken from you; is that
7 correct?
8 A. Yes.
9 Q. It was your understanding that was for safekeeping?
10 A. Yes.
11 Q. Because you were ultimately going to go into Afghanistan
12 and participate in a war, at the time against the Afghani
13 Communists, right?
14 A. Yes.
15 Q. After you left Afghanistan and Pakistan, were your papers
16 returned to you?
17 A. At what time you are talking about?
18 Q. Excuse me?
19 A. They were given to me when I moved from Bait al Ansar to
20 Bait al Salaam. And they were given to me again at the end
21 when I was traveling.
22 Q. When you were at the front or in the camps, did you get
23 regular time off to visit your wife?
24 A. Yes, in the camp, yes.
25 Q. Was that important to you, to be able to spend time with
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1 your wife periodically?
2 A. Yes, I think so.
3 Q. Is that a religious duty?
4 A. It is.
5 Q. In some point in 19 -- withdrawn.
6 When you were in Afghanistan, did you meet people who
7 had come to Afghanistan to assist the Afghanis in the early or
8 mid-1980's?
9 A. I met many people but I don't know exactly when they came
10 there.
11 Q. Did it become known to you that some of the people -- he's
12 been here or he's come back from 1983 or he's been here from
13 the very beginning, something of that nature?
14 A. Yes.
15 Q. There were a number of people, I am sure a minority, who
16 fit that description, is that right?
17 A. Yes.
18 Q. People who did come early on in the Afghan freedom battle
19 against the Russians were treated with a little bit more
20 respect because they came so early on.
21 A. Yes, you are right.
22 Q. For somebody to do that, that alone would give a degree of
23 trust to that person if that person came in the early 1980's
24 and stayed the whole time, or came back and forth to help the
25 cause, is that right?
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1 A. Yes.
2 Q. Before you went to Nairobi did you make a stop in the
3 Sudan?
4 A. No.
5 Q. Did your wife travel from Pakistan to the Sudan before you
6 went to Nairobi or after you went to Nairobi?
7 A. What happened is, I went after my wife in pilgrimage in
8 Saudi Arabia. Then from Saudi Arabia I went back to Pakistan.
9 She traveled from Saudi Arabia to Sudan. Then when I went
10 back to Kenya, I had 20 days to wait for the immigration
11 permit to be issued. Then I went to Sudan and found my wife
12 already there.
13 Q. So first you actually physically went to Kenya?
14 A. Yes.
15 Q. And filed papers in Kenya?
16 A. Yes.
17 Q. How many days were you there before you went to the Sudan?
18 A. I don't remember. Probably a week.
19 Q. Do you recall the first time that you went to Nairobi, is
20 it fair to say that that was approximately October of 1993?
21 A. Yes.
22 Q. It was your understanding that you were going to Kenya to
23 learn to be a pilot, is that right?
24 A. Yes.
25 Q. You had no objections to that because that's a good skill
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1 to learn, isn't it?
2 A. Yes.
3 Q. Your understanding was that Mr. Bin Laden wanted you to be
4 available to not only fly an airplane if he wanted to travel
5 but also for crop dusting for the farming companies, is that
6 right?
7 A. I didn't get your question, please.
8 Q. It was your understanding that once you became a pilot you
9 would be doing flying, perhaps Mr. Bin Laden around?
10 A. Yes.
11 Q. And doing crop dusting for the farming companies.
12 A. Excuse me. Your microphone --
13 Q. You would be doing crop dusting for the farms owned by
14 Mr. Bin Laden and his companies, is that right?
15 A. The crop dusting came very later after that, when we want
16 back to Sudan, they wanted to have somebody who has already
17 the license and he can fly crop dusting.
18 Q. So when you first came to Nairobi, it was just to fly
19 Mr. Bin Laden's personal plane, but then later on it was
20 expanded to include crop dusting of the farms.
21 A. Yes.
22 Q. As you told us, there was a religious obligation for you
23 to regularly visit with your wife, is that correct?
24 A. Yes.
25 Q. And also, by the time that your wife was in the Sudan did
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1 you have any children?
2 A. Yes, I had one, yes.
3 Q. It was also a religious obligation to spend time with your
4 children as well.
5 A. Yes.
6 Q. And you took that quite seriously, didn't you?
7 A. Yes.
8 Q. So after spending approximately two months in Nairobi
9 studying, you went back and spent a month in the Sudan with
10 your family. Would that be accurate?
11 A. No, it is not accurate. It wasn't like that. Normally,
12 if you talk about religious, if you stay somewhere far from
13 your wife, you should stay at least four months, then you go
14 back to visit her. But in Nairobi when I was there, it wasn't
15 exactly two months and then another month in Sudan. Probably
16 if I stayed three months I can get two weeks or three weeks I
17 go to Sudan, and so on.
18 Q. This was quite a while ago, right?
19 A. Excuse me.
20 Q. This occurred quite a while ago, your travel back and
21 forth to Sudan?
22 A. Yes.
23 Q. So you are doing your best to remember back that far, is
24 that right?
25 A. Yes.
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1 (Pause)
2 MR. SCHMIDT: I apologize.
3 Q. Do you recall telling the agents when you were interviewed
4 the first time that it was your best memory that every two or
5 three months you would spend in Nairobi you would then spend a
6 month in the Sudan with your family? Do you remember telling
7 that?
8 A. No, sir I don't remember, but as I said, it's not exactly
9 two months and another month in Sudan.
10 Q. I understand. It could be two or three months, a lot
11 depends on your schedule and classes.
12 A. Yes, you are right.
13 Q. But the amount of time that you tried to spend in the
14 Sudan when you went back there would hopefully be a month.
15 A. Yes, sometimes.
16 Q. Sometimes it might only be two or three weeks but
17 sometimes it might be four weeks.
18 A. Yes.
19 Q. Obviously you tried to spend as much time with your family
20 having been away from them for that long.
21 A. Yes.
22 Q. Do you remember the letter that you left for Ahmed Sheikh
23 when you visited in 1998?
24 A. Yes.
25 Q. Do you remember that the top of the letter, the greetings
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1 part of the letter read something like in the name of God the
2 merciful and the compassionate, may peace and God's blessings
3 be upon you, dear Ahmed Sheikh, Allah -- do you remember that
4 greetings portion?
5 A. Yes.
6 Q. Is that something that is traditional to do from one
7 Muslim to another Muslim writing a letter?
8 A. It depends on the culture of the Muslim, how it is. If
9 you are very good can write good things, if not, you can say
10 in the name of God the merciful --
11 Q. In other words, if you are a good letter writer, you would
12 put like a blessing or something in the letter?
13 A. Yes.
14 Q. That is not an al Qaeda thing, that is simply being a good
15 Muslim in writing to another Muslim?
16 A. Yes. Many people they can write more than that thing if
17 they are not from al Qaeda.
18 Q. When you were traveling back and forth from Nairobi to the
19 Sudan, when you were in the Sudan were you working then?
20 A. No.
21 Q. You had the opportunity to spend time with your family and
22 time with others that you knew without having to worry about
23 working in a position.
24 A. Yes.
25 Q. So during that time you had a lot of free time to find out
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1 what was going on with the people in the Sudan.
2 A. Yes.
3 Q. You spent that time not just being close to your family,
4 your wife and -- you had one child then or did you have a
5 second?
6 A. Excuse me.
7 Q. How many children did you have in, say, 1993 and 1994?
8 A. In '94 I had only one.
9 Q. You spent time with your family but you also spent time
10 catching up with all the information of things that went on in
11 the Sudan with people that you knew, is that right?
12 A. Yes.
13 Q. When you were in Nairobi, you knew Hamad, also known as
14 Khalid al Fawwaz, is that correct?
15 A. Yes, I knew Hamad.
16 Q. Did he live with you in the apartment?
17 A. No.
18 Q. Who lived with you in the apartment?
19 A. Abdel Hameed.
20 Q. That's a different person than Hamad, right?
21 A. Yes.
22 Q. What did Mr. Hameed do?
23 A. He is supposed to be assistant of Hamad in the
24 registration of the company.
25 Q. That was Asma Ltd.?
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1 A. Yes.
2 Q. Do you know if Hameed was associated with al Qaeda?
3 A. Yes.
4 Q. Do you know if he was associated and had taken bayat or
5 was just associated?
6 A. I know he is from al Qaeda but I didn't know when did he
7 give bayat to al Qaeda.
8 Q. Did you discuss the bayat with Mr. Hameed?
9 A. No, I have never discussed the bayat with anybody else.
10 Q. Did you see Hamad on a fairly regular basis when you were
11 in Nairobi?
12 A. Yes.
13 Q. Did he also keep you up with information on what was
14 occurring in the Sudan and with Usama Bin Laden?
15 A. Not necessarily.
16 Q. Did you discuss what was going on when you would come back
17 from the Sudan?
18 A. Probably, yes.
19 Q. Did Hamad travel from Nairobi to the Sudan at times as
20 well?
21 A. I don't remember. I don't think so.
22 Q. Did he travel outside of Kenya, if you remember?
23 A. I don't remember.
24 Q. When you came back to Sudan in 1995 -- withdrawn.
25 You went and stayed in Sudan at some period of time
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1 in 1995, is that correct?
2 A. Yes.
3 Q. At that time you started working in Sudan, in Khartoum, is
4 that right?
5 A. Yes.
6 Q. And I think that at one point that you said that you
7 started working at the tannery, that you stopped working
8 there, is that right?
9 A. Yes. I started working in Wadi Al Aqiq company.
10 Q. Who was running that company at that time?
11 A. Excuse me.
12 Q. Who was running Wadi Al Aqiq at the time you started
13 working there?
14 A. Who was running?
15 Q. Yes.
16 A. There was sometimes Abu Fadhl al Makkee, sometimes Sheik
17 Jihad el Masri and later Abu Salaama.
18 Q. You were sent over to the tannery from Wadi Al Aqiq to
19 work there, is that correct?
20 A. Yes.
21 Q. And you were required to take a test, is that right?
22 A. Yes, but it wasn't a test. I haven't sit for any test.
23 Q. Wasn't there some type of test that you were required to
24 take?
25 A. Yes. They told me after that that they were looking at
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1 that or something. There was something going on, but there
2 was nothing written, nothing some questions, nothing.
3 Q. What were you doing at the tannery when you were working
4 there?
5 A. We went only for some days to the commercial section with
6 two guys, Abu Ahmed Sarudi and another guy from Oman. And we
7 stayed there sometimes. Then after a while they told us that
8 there is no work.
9 Q. After that, did you obtain employment with Abu Ibrahim?
10 A. No.
11 Q. Where did you go from the tannery?
12 A. I stayed in my home. I stayed home. I didn't work.
13 Q. Where was your next job?
14 A. It was after a while, after Bin Laden left and al Qaeda
15 left, then I got another job with Kaswah company.
16 Q. K-A-S-W-A-H?
17 A. Kaswah.
18 Q. Who ran Kaswah?
19 A. Abdouh Abdallah al Yemeni.
20 Q. He was a businessman?
21 A. Yes.
22 Q. He was basically in an import/export company?
23 A. Yes.
24 Q. So they dealt with lots of different commodities?
25 A. Different what?
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1 Q. Commodities, goods? Different kinds of goods?
2 A. Yes.
3 Q. Whatever would be profitable to either bring into the
4 Sudan to sell for a profit or to export from Sudan to another
5 country for profit, is that right?
6 A. Yes, right.
7 Q. When you were with working for Abu Abdallah, you were just
8 doing business, is that right?
9 A. Yes.
10 Q. Based on what you could see, all that Mr. Abu Abdallah al
11 Yemeni was doing was business, is that right?
12 A. Yes.
13 Q. There were times that you saw correspondence either to or
14 from Wadih El Hage, from or to Abu Abdallah al Yemeni, is that
15 right?
16 A. Yes.
17 Q. In fact, some of it was even addressed to you concerning
18 different goods and commodities, is that right?
19 A. Yes.
20 Q. Some of the goods and commodities were hides?
21 A. Hides?
22 Q. Animal hides?
23 A. Leather?
24 Q. Yes, leather?
25 A. Yes.
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1 Q. Sugar?
2 A. Yes.
3 Q. Seeds?
4 A. Yes.
5 Q. Do you remember any other ones as well?
6 A. Tanzanite and (through interpreter) precious stones.
7 Q. And there were times where there were attempts for Mr. Abu
8 Abdallah to be a middleman for some large deals that
9 unfortunately didn't happen, is that correct?
10 A. Yes.
11 Q. By the way, when you were in the Sudan both visiting and
12 immediately after your return, were there any Sudanese
13 intelligence officers that regularly worked between Bin Laden
14 and the government of the Sudan, like a liaison?
15 A. Yes.
16 Q. Do you know the names of those individuals?
17 A. I know the names of the guy who was taking me myself to
18 the airport sometimes.
19 Q. Who is that?
20 A. Abdul Hallek.
21 Q. These were Sudanese intelligence, is that correct?
22 A. Yes.
23 Q. When you were traveling, it was a Sudanese intelligence
24 officer that would see you from basically Khartoum to the
25 airport to make sure that you are actually leaving the
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1 country, is that correct?
2 A. Yes.
3 Q. Because the Sudanese intelligence kept very close watch
4 over Bin Laden and Bin Laden's employees and members, is that
5 right?
6 A. It's not every day. Sometimes you can travel by yourself
7 if you don't have anything, carrying money or something, you
8 can travel by yourself to the airport and you do the whole
9 check-out and you go.
10 Q. But if there is anything that you are carrying other than
11 your own personal belongings, the Sudanese intelligence would
12 be involved.
13 A. Yes.
14 Q. They were monitoring Mr. Bin Laden and the people in
15 Khartoum.
16 MR. FITZGERALD: Objection to competence as to what
17 he knows they were doing.
18 MR. SCHMIDT: I am sorry?
19 THE COURT: The question is his competence to testify
20 as to what the Sudanese were doing.
21 MR. SCHMIDT: I will rephrase the question.
22 THE COURT: Yes.
23 Q. It was your understanding that the Sudanese were keeping
24 close track of the activities and Mr. Bin Laden and the people
25 who worked for Mr. Bin Laden, is that right?
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1 A. Sudanese, their role is to take you from your guesthouse
2 in the morning to the airport and just to make sure you cross
3 the immigration in the airport. They don't know what you are
4 carrying.
5 Q. There were a number of people of Egyptian background that
6 were in the Sudan, is that right?
7 A. Yes.
8 Q. And you knew quite a few to have them.
9 A. Yes.
10 Q. You knew that many of the Egyptians who were in the Sudan
11 were very much afraid of the Egyptian government.
12 A. Yes.
13 Q. Even people who were not members of al Qaeda were afraid
14 of the Egyptian government.
15 A. Yes.
16 Q. For example, Abu Tareq, the person who crashed the
17 airplane?
18 A. Yes.
19 Q. He was Egyptian, is that right?
20 A. Yes.
21 Q. And you believed that he was not a member of al Qaeda, is
22 that correct?
23 A. Yes.
24 Q. He actually flew from the Sudan to Nairobi before he went
25 back to Egypt because he was afraid of letting the Egyptians
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1 know that he was with Bin Laden.
2 A. I don't know when did he flew -- I didn't know if he was
3 afraid or not.
4 Q. Were you aware that religious Egyptians, both al Qaeda
5 members and non-al Qaeda members, were afraid of imprisonment
6 and torture from the Egyptian government?
7 MR. FITZGERALD: Objection, 401 and competence.
8 THE COURT: Sustained.
9 Q. Did you have conversations with members of Al Qaeda
10 concerning their fear of the Egyptian government?
11 MR. FITZGERALD: Members of Al Qaeda?
12 MR. SCHMIDT: Yes.
13 A. Yes.
14 Q. Were there times when nonmembers of Al Qaeda were present
15 during discussions about their fears of the Egyptian
16 government?
17 A. I don't remember if somebody from non-Al Qaeda was staying
18 with us. I don't remember.
19 Q. Did members of Al Qaeda express the fact that any
20 apparently religious person traveling to Egypt risked
21 imprisonment and torture?
22 A. Yes. It was obvious that all people, most of the
23 Egyptians who were in Afghanistan, if they go back to Egypt
24 they will be facing tortures.
25 Q. It made no difference whether they were Al Qaeda or people
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1 who were just in Afghanistan for a short period of time, isn't
2 that correct?
3 MR. FITZGERALD: Objection, competence and 401.
4 THE COURT: Yes.
5 Q. You knew also many Egyptians who were members, you met
6 many Egyptians who were members of jihad organizations from
7 Egypt, is that right?
8 A. Yes.
9 Q. Was there more than one jihad organization of Egypt that
10 were in the Sudan when you were there?
11 A. Yes.
12 Q. What were those organizations' names?
13 A. There is Gamaa Al Jihad. It means Al Jihad group. And
14 Gamaa Islamiya.
15 Q. One is often called Egyptian -- EIJ. Egyptian Islamic
16 Jihad.
17 A. I said Gamaa Jihad and al Gamaa al Islamiya, it means
18 Egyptian Jihad of Sheik Omar Abdel Rahman.
19 Q. When we refer to the Egyptian Islamic Jihad, who is the
20 leader of the group, of that particular group? Who was the
21 leader back then?
22 A. The leader was Sheik Omar Abdel Rahman.
23 Q. When we talk about, what was the other one, Gamaa?
24 A. I am talking about Gamaa Islamiya.
25 Q. Is there another group simply called shortly like the
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1 Islamic Group?
2 A. I don't know.
3 Q. Have you heard of a person named Zawahiri?
4 A. Yes.
5 Q. Was he a leader of a particular group?
6 A. Yes.
7 Q. What particular group was he a leader of?
8 A. Al Jihad group.
9 Q. Is that the same group that Abdel Rahman was a leader of?
10 A. No.
11 Q. Two different groups?
12 A. Yes.
13 Q. Just so we can understand it and use English initials, if
14 I say IG, which group would that be referring to, with who as
15 the leader?
16 A. Islamic jihad?
17 Q. Yes, Islamic Group.
18 A. They are all Islamic groups.
19 Q. So if I say Gamaat, which group are we talking about?
20 A. Gamaa?
21 Q. Yes.
22 A. It is Sheik Omar Abdel Rahman group.
23 Q. That's Gamaa?
24 A. Gamaa.
25 Q. I think that has been referred to at times as IG. So the
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1 Sheik Rahman group we refer to as IG?
2 A. Yes.
3 Q. The Zawahiri group we will refer to as Egyptian Islamic
4 Jihad. Is that sometimes referred to as that?
5 A. The translation I don't know.
6 Q. It would be Islamic Jihad, is that correct, from Egypt?
7 A. We call it Gamaa Jihad, it means Al Jihad Group of Egypt.
8 Q. Al Jihad Group of Egypt.
9 A. OK.
10 Q. These two groups obviously were not, the leadership was
11 not able to stay in Egypt, is that right?
12 A. Excuse me.
13 Q. That leadership was wanted in Egypt. They would be
14 arrested and imprisoned and tortured and maybe executed,
15 right?
16 A. Yes.
17 MR. FITZGERALD: Objection, again to competence and
18 401.
19 THE COURT: Sustained. The answer is stricken.
20 Q. Did you know any members of either the Islamic Jihad of
21 Egypt or the, what we call the IG, Sheik Rahman's group, in
22 Khartoum?
23 A. Yes.
24 Q. Could you tell us the names of some of the people that you
25 knew who belonged to that group, either one of those groups.
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1 A. For example, Sheik Faraj el Masry, he is one of the Al
2 Jihad Group of Himan Zawahiri.
3 Q. Was he one of the early people in Afghanistan 1234?
4 A. Yes, he went to Afghanistan long time before me.
5 Q. Was there a lot of people from the Egyptian groups that
6 went to Afghanistan early on?
7 A. Yes.
8 Q. Who else did you know from Islamic Jihad?
9 A. I don't remember their names.
10 Q. There were some people that you dealt with that it was
11 your belief they were not Al Qaeda members, is that correct?
12 A. From which country?
13 Q. When you were in Sudan, there were a number of people that
14 you dealt with -- withdrawn.
15 When you were in the Sudan and sometimes in Nairobi,
16 there were people that you dealt with that it was your belief
17 that they were not Al Qaeda members, is that correct?
18 A. Yes.
19 Q. Sometimes these people worked for companies owned by Bin
20 Laden, is that correct?
21 A. Yes.
22 Q. Sometimes these people might have assisted people who were
23 Al Qaeda members, is that correct?
24 A. Yes.
25 Q. Some of them might have been borrowed from groups like the
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1 Egyptian jihad of Egypt.
2 MR. FITZGERALD: Objection to the form, the word
3 borrow.
4 THE COURT: Yes.
5 Q. Sometimes people who were not Al Qaeda but were members of
6 Egyptian Jihad of Egypt do some training of members of Al
7 Qaeda.
8 A. In Sudan?
9 Q. In Sudan and even in Afghanistan and Pakistan.
10 A. In Sudan I have never seen some trainings.
11 Q. In Afghanistan or Pakistan where sometimes the trainer was
12 a person who was Egyptian jihad, not Al Qaeda, but was used as
13 a trainer.
14 A. Sometimes, yes.
15 Q. There were also some people that you knew who you had no
16 idea whether they were or were not Al Qaeda, is that right?
17 A. Yes.
18 Q. For example, Abu Hajer, he was one of the what we call old
19 timers from Afghanistan, who went to Afghanistan early on, is
20 that right?
21 A. Yes.
22 Q. You saw him being involved in Mr. Bin Laden's businesses
23 in the Sudan, is that correct?
24 A. Yes.
25 Q. You never saw him do any training or anything like that,
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1 did you?
2 A. No.
3 Q. He was a person who had great respect of Mr. Bin Laden and
4 others who were in Al Qaeda, is that correct?
5 A. Yes.
6 Q. But you could not say that he actually was a bayat member
7 of Al Qaeda, could you?
8 A. No.
9 Q. There were people like Ahmed Sheikh in Nairobi.
10 A. Yes.
11 Q. He was somebody who was friends with a number of people
12 that were Al Qaeda, is that right?
13 A. Yes.
14 Q. He was somebody that helped in some ways, assisted some of
15 those people in Nairobi, is that right?
16 A. Yes.
17 Q. You described on direct examination because he lived in
18 Nairobi for a long time, he was able to assist with the legal
19 problems of members of Al Qaeda, is that right?
20 A. Yes.
21 Q. You are fairly confident that he is not a member of Al
22 Qaeda, is that correct?
23 A. Yes.
24 Q. Abu Ibrahim is a person that you knew in the Sudan, is
25 that correct?
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1 A. Which Abu Ibrahim?
2 Q. Abu Ibrahim al Iraqi?
3 A. Yes.
4 Q. Did you know him in Afghanistan?
5 A. I had heard of him, yes.
6 Q. But you didn't meet him until you went to Sudan, is that
7 right?
8 A. Yes.
9 Q. He was running al Hijra company for a while, is that
10 correct?
11 A. Yes.
12 Q. That is the construction company?
13 A. Yes.
14 Q. The road building company?
15 A. Yes.
16 Q. In the road building company, most of the engineers that
17 worked in that company were Iraqis, weren't they?
18 A. Yes.
19 Q. They were not Al Qaeda, they were just al Iraqis?
20 A. Yes.
21 Q. There were a lot of Sudanese that worked in al Hijra as
22 well, doing a lot of the menial jobs, is that correct?
23 A. Yes.
24 Q. In fact, it is your understanding that the Sudanese
25 government and the Sudanese people were very happy about the
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1 jobs that Mr. Bin Laden brought in to the Sudan with all of
2 his companies, is that right?
3 A. Yes.
4 Q. Do you know if Abu Ibrahim al Iraqi worked in any other
5 company?
6 A. No.
7 Q. You have talked about a person named Ubaidah Al Banshiri.
8 A. Yes.
9 Q. He also was an old timer, wasn't he? He was in
10 Afghanistan early on.
11 A. Yes.
12 Q. His relationship with Bin Laden was more of a friend than
13 it was as an emir and an underling, is that right?
14 A. Excuse me. I didn't get --
15 Q. His relationship was like a friend, is that right?
16 A. They were more than friends, yes.
17 Q. It wasn't, from what you could see, Mr. Bin Laden wasn't
18 giving orders, directions to Mr. al Banshiri.
19 A. I don't know how it goes between them.
20 Q. Do you know a person named Abu Khadija al Iraqi?
21 A. Yes.
22 Q. All the contacts that you had with Abu Khadija al Iraqi
23 were business or commercially related, is that correct?
24 A. Yes.
25 Q. Abu Khadija did a lot of traveling in Europe.
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1 A. Yes. I know he is from Germany. That's why he is
2 traveling.
3 Q. Were you aware that he had a European passport, from
4 Germany?
5 A. Yes.
6 Q. So he was able to travel freely through Europe, is that
7 right?
8 A. Yes.
9 Q. You are not aware that he is a member of Al Qaeda, is that
10 correct?
11 A. I don't know, but he was all the time, sometimes in the
12 meetings, sometimes in the guesthouse in Khartoum.
13 Q. He was traveling a lot. Did he have a house in the Sudan?
14 A. Yes.
15 Q. The head of one of the agricultural companies, them
16 March -- do you know the company I am talking about?
17 A. Themar al Mubaraka.
18 Q. Was that Dr. Mubarak?
19 A. Yes.
20 Q. Mr. Mubarak, did he run more than one company or did he
21 run just one company?
22 A. I didn't get your question.
23 Q. How many companies did he run? Did he run more than more
24 than one company or just one?
25 A. I think he was running el Mubaraka company, which is a
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1 branch of Wadi Al Aqiq company.
2 Q. Dr. Mubarak is, to your knowledge, not a member of Al
3 Qaeda, is that correct?
4 A. Yes.
5 Q. Do you know a person Hamza al Liby?
6 A. Yes.
7 Q. He is a Libyan, is that correct?
8 A. Yes.
9 Q. To your knowledge, you do not believe that he is Al Qaeda,
10 is that correct?
11 A. He is from Al Qaeda.
12 Q. He is Al Qaeda? What was his role? What did he do in the
13 Sudan?
14 A. He is working in al Hijra company.
15 Q. Do you know a person named Abu Baden el Masry?
16 A. Mohamed, yes.
17 Q. Do you know if he was Al Qaeda?
18 A. Yes.
19 THE COURT: Do you know, or he wasn't?
20 THE WITNESS: No, I know that he was in Al Qaeda
21 group.
22 Q. Did you talk with him being in Al Qaeda?
23 A. No, it was obvious. You can't say to a member who is
24 working with you in the same company are you from this company
25 or not. I mean, the question, you can talk about all issues
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1 about Al Qaeda among us, discussing whatever.
2 Q. What about, there were a number of black Americans who
3 were in Khartoum in those years, is that correct?
4 A. Americans?
5 Q. Some black Americans?
6 A. Yes.
7 Q. One of them was Abu Malek?
8 A. No, he wasn't in Khartoum.
9 Q. He was not in Khartoum?
10 A. I don't know him.
11 Q. Was he in Afghanistan or Pakistan?
12 A. I knew a guy called Abdouh Malek, an American, but he was
13 in Pakistan and since then -- he didn't visit Sudan.
14 Q. Was he Al Qaeda?
15 A. I believe so.
16 Q. But you are not sure?
17 A. No.
18 Q. In fact, you told the agents when they asked you about Abu
19 Malek that you did not know whether he was an Al Qaeda member.
20 A. Abu Malek or Abdou Malek?
21 Q. I guess there might be two people. There is an Abu Malek?
22 A. Abu Malek, I don't know him.
23 Q. There is an Abdou Malek?
24 A. Abdou Malek yes.
25 Q. Did you tell the government when you first were talking
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1 about different people who were members of the Al Qaeda, who
2 you did not think were members of Al Qaeda, who you did not
3 know were members of Al Qaeda, you said to the government that
4 you did not whether Abdou Malek was a member of Al Qaeda, is
5 that correct?
6 A. I don't remember that. If I said, that is correct.
7 Q. So you don't know if he was, is that correct?
8 A. Yes.
9 Q. There are a lot of -- when you were in Afghanistan there
10 were a number of Algerians who were in Afghanistan and
11 Pakistan, is that correct?
12 A. Yes.
13 Q. They basically stayed in their own guesthouse, is that
14 right?
15 A. Yes.
16 Q. And they basically stayed together, is that correct?
17 A. What do you mean by together?
18 Q. They hung around in their group mostly. Not that they
19 didn't mix with other people but they mostly hung around with
20 their group of Algerians.
21 A. Yes.
22 Q. Based on your knowledge, that of those Algerians, those
23 Algerians did not train with Usama Bin Laden or Al Qaeda, is
24 that correct?
25 A. There is a group -- al Farouq camp, for example, everybody
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1 can come from different nationalities. They can come and be
2 trained in al Farouq camp. But for Algerians, at certain
3 times there came a group of Algerians, purely Algerians. They
4 came, they were trained in Khalid Ibn Walid camp.
5 Q. They were trained separately?
6 A. Excuse me.
7 Q. They were separate from other groups?
8 A. Yes, they were separate, yes.
9 Q. Do you know a person named Abu Salaama?
10 A. Yes.
11 Q. You don't know if Abu Salaama is a member of Al Qaeda, is
12 that correct?
13 A. Yes.
14 Q. Abu Salaama worked at Wadi Al Aqiq, is that correct?
15 A. Yes.
16 Q. He also worked at the Khartoum tannery, is that correct?
17 A. Yes.
18 Q. Did you know a person named Abu Hazim?
19 THE COURT: Mr. Schmidt, how much longer are you
20 going to go along this path? I am just wondering whether it
21 couldn't be expedited by simply giving the witness a list of
22 names and asking him in one fell swoop to identify which he
23 knows to be Al Qaeda members and which he does not know.
24 MR. SCHMIDT: I am trying to get other information
25 about these individuals as well, your Honor.
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1 THE COURT: If you would pick up the pace I am sure
2 it would be appreciated.
3 Q. Do you know a person named Abu Hazim?
4 A. Hazim? No.
5 Q. Do you know a person named Abu Hazim who was a member of
6 the Libyan Fighting Group?
7 A. Hazim?
8 Q. H-A-Z-I-M.
9 A. No.
10 MR. FITZGERALD: May I have a moment, your Honor?
11 THE COURT: Yes.
12 MR. SCHMIDT: Thank you.
13 Q. Abu Hazem.
14 A. Hazem?
15 Q. Yes.
16 A. No.
17 Q. Hazem?
18 A. Hazem is a Palestinian name, so Libyans do not use it.
19 Q. I am trying to say Abu H-A-Z, I guess E-M, a person that
20 you told the government that you knew was a Libyan member of
21 the Libyan Fighting Group and was not an Al Qaeda member.
22 Does that refresh your recollection?
23 A. No.
24 (Continued on next page)
25
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1 Q. Now, there is a company called the Kasalla facility, is
2 that correct?
3 A. Kasalla is a city in the Sudan, yes.
4 Q. There is agricultural facility there that is owned by
5 Mr. Bin Laden; is that correct?
6 A. Yes.
7 Q. And they did experiments concerning hybrids for
8 agricultural products like corn; is that right?
9 A. Yes.
10 Q. That's run by a Abu Muath; is that correct?
11 A. Yes.
12 Q. He's a Palestinian, is that right?
13 A. Yes.
14 Q. He's not a member of al Qaeda, isn't that correct?
15 A. Yes.
16 Q. Now, do you know an Abu Daud, D-A-U-D, a person who fought
17 in Afghanistan?
18 A. Yes.
19 Q. Now, he was often seen in Khartoum doing business with
20 people, isn't that right?
21 A. Well, he was visiting Sudan only.
22 Q. He's not a member of al Qaeda; is that correct?
23 A. Yes.
24 Q. There is a, there are two people named Mak Daud?
25 A. Mak Daud, yes.
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1 Q. The Egyptian one, is that correct, he's a member, he's not
2 a member of al Qaeda, is he?
3 A. Yes.
4 Q. He is or is not?
5 A. No, he's not.
6 Q. He's a member of the Egyptian jihad, is that correct?
7 A. I'm not quite sure.
8 Q. Do you recall telling the government back when they were
9 asking you all these names and that you indicated that Maqdad
10 was likely a member of the Egyptian jihad?
11 A. Yeah, because he all the time with Egyptians so.
12 Q. Now, Abu Ismal he worked at the GASH project in Sudan for
13 Mr. Bin Laden, is that correct?
14 A. Yes.
15 Q. Was he an al Qaeda member?
16 A. No.
17 Q. Abu Sara worked at Wadih ak Kish; is that correct?
18 A. Yes.
19 Q. He was a member of the Libyan group and not al Qaeda; is
20 that correct?
21 A. Yes.
22 Q. Abdel Kadim?
23 A. Yes.
24 Q. He's someone that you did business with, is that right?
25 A. Yes.
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1 Q. He's also not al Qaeda; is that correct?
2 A. Yes.
3 Q. But he knows just about everybody there, doesn't he?
4 A. Not everybody, but.
5 Q. Lots of people?
6 A. Yes.
7 Q. Do you know a person name Ahmed Hasan?
8 A. Yes.
9 Q. He's not al Qaeda, is he?
10 A. There are two Ahmed Hasans, both Egyptian, one from al
11 Qaeda, one not.
12 Q. And the one that's not from al Qaeda is from the Islamic
13 jihad Egyptian, right?
14 A. From jihad.
15 Q. You knew a few Sudanese members of al Qaeda, didn't you?
16 A. Yes.
17 Q. And one in particular you knew that Abu Bidala Sudani, is
18 that correct?
19 A. I heard about him, yes.
20 Q. Do you recall ever meeting him?
21 A. No, I don't think so.
22 Q. All the times that you went to the guest houses, the
23 meetings, the get together when you were in Khartoum is it
24 your belief that you never saw him, is that correct?
25 A. Yes, for the reason because they were talking about that
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1 he was working with the company he stole money and he left, he
2 run away, that's why he not in the guest house.
3 Q. But prior to him running away, the times that you would
4 come back for your two, three, four weeks in the Sudan?
5 A. Yes.
6 Q. You never ran into him in a guest house or at any of the
7 meetings. Is that correct?
8 A. I was going to guest house and the meetings.
9 Q. But you never met Abu Adan?
10 A. No, I don't think so.
11 Q. Now, do you know him by any other name?
12 A. No.
13 Q. Now, I'm going to show you a photograph which is marked
14 WEH exhibit C. May I approach the witness, your Honor?
15 THE COURT: Yes.
16 Q. Do you recognize that photograph?
17 A. No.
18 Q. Do you ever think you've seen that man before?
19 A. No.
20 Q. Thank you. Now, was there a discussion about what should
21 be done to Al Ubaidah for stealing?
22 A. Excuse me?
23 Q. Was there discussions among al Qaeda about what to be done
24 to Mr. Al Ubaida Sudani for stealing money?
25 (witness consults with interpreter)
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1 A. No, there was, there is nothing about this.
2 Q. Was there any discussion whatsoever about killing Mr. Abu
3 Al Ubaida Sudani?
4 A. No, you don't kill somebody that stole money.
5 Q. Why is that?
6 A. It's against Islam, so Abu Al Ubaida would know he had no
7 fear from his life.
8 MR. FITZGERALD: Objection.
9 THE COURT: Sustained.
10 Q. Or from Mr. Bin Laden?
11 THE COURT: Sustained.
12 Q. What was your, what was the relationship between the al
13 Qaeda and Iranians?
14 A. Iranians? They don't like Iranians.
15 Q. Why is that?
16 A. Because we are Sunni and they are Shiites, and you know I
17 mean we had many points that's why we don't like them.
18 Q. Are there fundamental religious differences between Sunnis
19 and the Shiites?
20 A. Are there fundamentalist what?
21 Q. Are there basic differences between the practice of Islam
22 by Sunni and the practice of Islam by Shiites?
23 A. Well, you have some differences.
24 Q. And as a result of those differences is there not a big
25 dispute a split between the Sunni branch Islam and the Shiite
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1 branch of Islam, is that correct?
2 A. Yes.
3 Q. They both view each other also as heretics?
4 (Witness consults with interpreter)
5 A. Yes.
6 Q. Now, I think you told us earlier that you never saw or
7 heard of any military training in the Sudan while you were
8 there; is that correct?
9 A. Yes.
10 Q. That was whether you were visiting every few months from
11 Nairobi or whether you were in the Sudan having left Nairobi,
12 is that correct?
13 A. Yes, when I was there I have never heard something like
14 that.
15 Q. Were you aware of any military training at the soba farm?
16 A. No.
17 Q. Now, have you been to the soba farm?
18 A. Yes.
19 Q. Was that a farm that was open space owned or used by
20 Mr. Bin Laden?
21 A. Yes.
22 Q. And were there, did Mr. Bin Laden go there on the weekends
23 to ride horses?
24 A. Yes.
25 Q. Now, the weekends in the Sudan were what day were they?
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1 A. What day?
2 Q. Yes?
3 A. Friday.
4 Q. Thursday and Friday?
5 A. Normally Friday. Thursday is a working day.
6 Q. Now, there were also people getting together for a soccer
7 games at the soba?
8 A. Yes.
9 Q. Swimming?
10 A. Yes.
11 Q. Picnicking?
12 A. Sometimes, yes.
13 Q. Now, al Qaeda and the Egyptian groups have very different
14 philosophies; is that correct?
15 A. I don't know.
16 Q. When you first came to Afghanistan you were fighting the
17 war against at that time it was the Afghani communists being
18 supported by the Russians, is that correct?
19 A. Yes.
20 Q. You went to the front and you fought for them, is that
21 right?
22 A. Yes.
23 Q. And when you joined al Qaeda it was your understanding
24 that these are the kind of battles that you would participate
25 in if you were a member of al Qaeda?
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1 A. Yes.
2 Q. And, in fact, you brought many friends and associates in
3 battle in Chechnia?
4 A. Yes.
5 Q. And southern Bosnia?
6 A. Yes.
7 Q. Do you know if any of your fellow al Qaeda members went to
8 Turjakistan to fight against the old Communist ruler in
9 Turjakistan?
10 A. Turjakistan they went I think in '95.
11 Q. And that was what you envisioned the type of fights that
12 you would participate in as a member of al Qaeda; is that
13 correct?
14 A. I didn't get you.
15 Q. The battles in Afghanistan, the battle against Russians in
16 Chechnia, the battles in Bosnia against the Serbs, the battles
17 against the Armies of the old Soviet ruler in Turjakistan,
18 those are the kinds of battles that you thought that you would
19 participate in as a member of al Qaeda, isn't that correct?
20 A. Yes.
21 Q. Now, the Egyptian jihad group mostly kept to themselves in
22 Sudan; is that right?
23 A. Yes.
24 Q. They had their own guest house?
25 A. I think so.
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1 Q. They had their own farm?
2 A. I don't know.
3 Q. Now, there was people that you understood who were
4 recently Egyptian Islam jihad like Mr. Banshiri and Abu Hafs
5 who were with Bin Laden since the beginning, is that right?
6 A. You mean Jalal --
7 Q. Abu Hafs and Banshiri were with Mr. Bin Laden from way
8 back in Afghanistan in the late '70s, '79, '80, '81 something
9 like that, is that right?
10 A. They were there before I we came to Pakistan.
11 Q. Were they back then members of the Egyptian jihad?
12 A. I don't think so.
13 Q. Were they al Qaeda people?
14 A. Excuse me?
15 Q. Whether they were actually bayat or not, they were with
16 the al Qaeda people?
17 A. Well, they are leaders in the al Qaeda.
18 Q. Do you know a person named Kalal?
19 A. Yes.
20 Q. That person you understood was arrested in Croatia?
21 A. Which Kalal?
22 Q. The one who was arrested in Croatia?
23 A. I know him.
24 Q. And what organization was he part of?
25 A. He's from Sheik Rahman.
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1 Q. He was arrested in Kuwait and the Americans gave him --
2 MR. FITZGERALD: Objection, to 401, Judge.
3 THE COURT: Sustained.
4 Q. I'll rephrase that question. Now, it was your
5 understanding that --
6 MR. FITZGERALD: Objection to 401.
7 Q. -- that the Egyptian --
8 THE COURT: Sustained.
9 Q. Was he with the Sheik Rahman group?
10 A. Yes.
11 Q. Now, it's your understanding that that group of people
12 were very angry at the Americans for giving Kalal to the
13 Egyptian government, isn't that correct?
14 MR. FITZGERALD: Objection, your Honor, 401.
15 THE COURT: We'll take our mid-morning recess at this
16 point.
17 (Continued on next page)
18
19
20
21
22
23
24
25
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1 (Jury not present)
2 MR. FITZGERALD: I have three objections, your Honor.
3 During my direct examination Mr. Schmidt has tried to hold us
4 to a very narrow exception to the hearsay rule and
5 coconspirator statements, but on cross-examination he thinks
6 he can ask everyone, what do you think.
7 Number two, to what the organization believes is as
8 to what happens to a particular person who is directed by
9 where he was who may have taken him to a country or not
10 whether that's true or not it is unfairly prejudicial.
11 Number three, we have sent out much evidence of what
12 the Egyptian groups have done at the defense requests, they
13 are killing people, bombing people and strafing tourist buses
14 in Egypt, and yet all we get is questions about what will
15 happen to people in al Qaeda if they go foe back to Egypt.
16 They want to keep out the violence but they want to
17 present before the jury that the Egyptians, one of the people
18 playing soccer blew up the Egyptian in Islamabad. The defense
19 wants us to keep out anything that's bad that these people did
20 so the defendants aren't prejudiced, but get in everything
21 that anyone perceives the foreign government might have done
22 wrong in trying to link it to the American government.
23 I think it's improper. I don't see it goes to the
24 witness' credibility. I don't see it goes to the issues in
25 this case whether or not Wadih el Hage joined the conspiracy
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1 to kill Americans, what it is that a different group that he
2 didn't belong to thinks may have happened to a persona in a
3 foreign country.
4 THE COURT: There is another objection, and that is I
5 don't find it in the rules of evidence the tediousness is also
6 a factor.
7 MR. SCHMIDT: Your Honor, if I may be heard.
8 THE COURT: Of course you may.
9 MR. SCHMIDT: The government has brought out hearsay
10 on their direct examination concerning plots supposedly by EIJ
11 members as part of al Qaeda to kill or attack Americans as a
12 result for revenge purposes. They brought that out on their
13 case. We are counteracting that to show that while there is
14 discussions there, it's -- may I have a moment?
15 (Pause)
16 MR. FITZGERALD: Your Honor, I believe that first
17 came up in the case when Mr. Schmidt cross-examined Mr. Al
18 Fadl about whether or not he first raised the issue in 1997
19 that he had first raised in October, 1996. In any event, the
20 indictment does charge that Egyptian Islamic jihad was working
21 with Usama Bin Laden fatwas. It's not hearsay. It's part of
22 this conspiracy. The jihad group and al Qaeda merged and
23 worked together for all practical purposes. That is not
24 hearsay. Getting into what happened in Croatia or Egypt and
25 other things --
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1 MR. SCHMIDT: What I'm trying to do, your Honor, the
2 first witness Mr. Jamal tried to make it seem that they were
3 altogether back in '93, '94, '95. What I'm trying to do with
4 this witness is show in truth they were not all together.
5 THE COURT: All together in all activities as to all
6 things, but now assuming that's your objective, have you now
7 not exhausted that topic?
8 MR. SCHMIDT: No, I've not exhausted that topic. I
9 have some other issues that Jamal went through that I need to
10 go with this witness to go through to get the accurate
11 picture.
12 THE COURT: To this witness' knowledge.
13 MR. SCHMIDT: This witness' knowledge.
14 THE COURT: What is the ultimate point you're trying
15 to make?
16 MR. SCHMIDT: We have no dispute --
17 THE COURT: Fill me in on what the actual point that
18 you're trying to make is what.
19 MR. SCHMIDT: That EIJ and Islamic group was a very
20 separate, has a very separate identity that al Qaeda in '92,
21 '93, '94, '95, '96 until some point in '98 when they came out
22 with a joint declaration. I am trying to show that indeed
23 that they did have a separate identity that and they were not
24 mixed like Mr., like Jamal Al Fadl led the jury to believe.
25 They didn't merge until 19998. The jury has been left with a
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1 misimpression from the government's first witness and that's
2 what I'm struggling with, your Honor.
3 THE COURT: You know, Mr. Schmidt, you're a very
4 skilled and experienced attorney, and the point as you just
5 expressed it now it seems to me does not require an hour and
6 twenty minutes of examination of the witness which only leads
7 more to obfuscation than it does to clarity.
8 I'll permit you to question the witness as to his
9 personal knowledge of these events, but I do suggest that if
10 you're really trying to communicate something to the jury an
11 hour of asking a list of names is not a very effective way of
12 doing it. We'll take a five minute recess.
13 (Recess)
14 (In open court; not jury present)
15 MR. SCHMIDT: The stipulation as to the exhibit
16 should be in the presence of the jury, not in presence of the
17 witness.
18 MR. FITZGERALD: I would ask your Honor to advise the
19 jury that it was stipulated that the person in the picture
20 Wadih El Hage Exhibit WEH C is Jamal Al Fadl. Your Honor, I
21 would just ask for a instruction separate from the stipulation
22 that if the witness testifies as to his understanding of what
23 it is the American government did or didn't do, that's not
24 offered for the truth of the matter asserted, just for --
25 THE COURT: I'll do that when there is a particular
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1 question.
2 MR. SCHMIDT: Your Honor, if it's a discussion of a
3 quote coconspirator conversation then it can be offered for
4 the truth.
5 THE COURT: If it's a statement in furtherance of the
6 conspiracy by a coconspirator.
7 MR. SCHMIDT: That's correct.
8 MR. FITZGERALD: Your Honor, with regard to that, if
9 people are talking about taking action because they perceive
10 the Americans are wrong, the relevance is that they are taking
11 action, not the coconspirator statement whether it's true or
12 not, it's irrelevant. If they think American did a bad act
13 that's to state of mind. This doesn't prove that America did
14 a bad act.
15 MR. SCHMIDT: I have no disagreement with that.
16 THE COURT: You marked that photograph WH exhibit C.
17 Bring the jury in, but not the witness and then the witness.
18 I'll tell you when to bring in the witness.
19 (Continued on next page)
20
21
22
23
24
25
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1 (Jury present)
2 (Witness not present)
3 THE COURT: I understand that the parties have
4 reached a stipulation with respect to exhibit WEHC for
5 identification which is a photograph shown to this witness.
6 Will you state the stipulation, please?
7 MR. SCHMIDT: Yes, your Honor. It was stipulated
8 between the government and the defendant Wadih El Hage that
9 the photograph is of Jamal Ahmed Mohammed Al Fadl.
10 MR. FITZGERALD: That's right, Judge.
11 THE COURT: So stipulated. All right. Bring the
12 witness in, please.
13 (Witness resumed)
14 Q. Mr. Kherchtou, you heard that the Americans gave Talal to
15 the Egyptian government; is that correct?
16 MR. FITZGERALD: Objection, foundation.
17 MR. SCHMIDT: It's not for the truth, your Honor.
18 It's state of mind.
19 MR. FITZGERALD: I'll withdraw the objection.
20 Instruction as to the state of mind.
21 THE COURT: I understand the question that is going
22 to be asked of what this witness heard or understood, and
23 understand that that testimony is relevant to this witness'
24 understanding and this witness' state of mind, and not
25 evidence of the truth of what it is that he had heard.
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1 The law provides that statements made by
2 coconspirators in furtherance of the conspiracy are
3 admissible. In other words, the usual hearsay rules which
4 would preclude testimony of what other people, not witnesses,
5 said recognizes an exception and the exception relates to
6 statements made by coconspirators in furtherance of the
7 conspiracy, not just casual observations about irrelevant
8 things.
9 But we've heard an awful lot of testimony by
10 witnesses who have said that they were members of al Qaeda and
11 this is what other members of al Qaeda said, and that
12 testimony has been received without limitation. So there is
13 that distinction between statements made by coconspirators in
14 furtherance of the conspiracy and other statements which are
15 being offered simply to show the state of mind of the
16 listener. Sometimes the distinction may be obvious, in which
17 case the attorneys may request or I may on my own impose a
18 limitation.
19 Q. You may answer the request.
20 THE COURT: You'd better restate the question.
21 Q. Did you understand that Talal was given over by the
22 American government to the Egyptian government?
23 A. Yes.
24 Q. Was that information part of a discussion that you ever
25 had with al Qaeda members?
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1 A. Yes.
2 Q. Would it be fair to say that al Qaeda did not ever discuss
3 any type of revenge against the Americans as a result of this
4 Islamic group member being turned over to the Egyptians?
5 Would that be a fair statement?
6 (Witness consults with interpreter)
7 A. No.
8 Q. That is not a fair statement or it is a fair statement?
9 Let me rephrase the question.
10 A. Okay.
11 Q. Was there any discussion that you heard of any revenge by
12 al Qaeda against the Americans for what happened to Talal of
13 the Islamic group?
14 A. No.
15 Q. Now, you also heard that Sheik Rahman the leader of the
16 Islamic group was arrested in the United States; is that
17 correct?
18 A. Yes.
19 Q. And any discussion of revenge for his arrest came from the
20 Egyptian group, the Islamic group, is that correct?
21 A. I didn't hear anything.
22 Q. Did you hear anything in al Qaeda about any revenge from
23 al Qaeda?
24 A. No, but the, there was talking that they didn't like the
25 fact that one of the Islamic scholars were arrested in the
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1 United States.
2 Q. They opposed the United States arresting Sheik Rahman?
3 A. Yes.
4 Q. Do you recall the first time that you met Mr. El Hage?
5 A. Wadih El Hage?
6 Q. Yes.
7 A. Yes.
8 Q. Was that in the Sudan?
9 A. I don't remember exactly if I met him in Sudan or I was
10 visiting in the beginning, but I remember very well when he
11 came the first time to Kenya.
12 Q. So you may have heard about Mr. El Hage prior to him
13 coming to Kenya but you're not sure if you saw him?
14 A. Yes, I heard about him, yes.
15 Q. Now, you looked at a photograph of Mr. El Hage that the
16 government showed you with a beard. Do you remember that?
17 A. Yes.
18 Q. And do you remember that you had some difficulty saying
19 for certain whether that was Mr. El Hage or not?
20 A. No, I didn't recognize, they gave me a bunch of pictures,
21 I didn't recognize him, and the second time I think the second
22 day I recognized him.
23 Q. Now, many people when they were in the Sudan dressed and
24 their facial hair was more in comportment with traditional
25 Islam look, is that correct?
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1 A. Not all of them.
2 Q. But some of them did?
3 A. Yes.
4 Q. And sometimes it was difficult recognizing somebody who
5 you saw with a full Islamic beard and maybe an Islamic outfit
6 when you see them in western clothes and clean shaven?
7 A. It is changes.
8 Q. There is only one Abu Ahmed that you know of, is that
9 correct?
10 A. Which Abu Ahmed.
11 Q. That's and Abu Ahmed who was an Egyptian artillery
12 specialist that you knew from Afghanistan; is that correct?
13 A. There is no artillery specialist.
14 Q. The person is also known as Abu Ahmed al Houn?
15 A. There is no Abu al Houn.
16 Q. Now, what you learned about Mr. El Hage even before
17 meeting him was that he was a person who was one of the first
18 ones to come to Afghanistan; is that right?
19 A. Yes.
20 Q. Now, were you aware that he actually came from the United
21 States to Afghanistan?
22 A. I heard that.
23 Q. That was especially among al Qaeda people that somebody
24 that early on in the Afghani freedom war would come from the
25 United States?
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1 A. No, we had people that came from all over the world.
2 Q. Now, so is it fair that you do not know -- withdrawn.
3 You have no actual knowledge that Mr. El Hage ever
4 took bayat in al Qaeda, is that correct?
5 A. Yes.
6 Q. And it's your understanding that Mr. El Hage was
7 considered a very trustworthy person., Is that right?
8 MR. FITZGERALD: Objection to form. By who?
9 Q. By Mr. Bin Laden.
10 A. Yes.
11 Q. And one of the reasons that you're aware of that he was
12 considered trustworthy person is because of his early
13 assistance given to the Afghani cause; is that right?
14 A. Because he was one of the first people who went to
15 Afghanistan.
16 Q. That was really before, certainly before al Qaeda; is that
17 correct?
18 A. Probably, yes.
19 Q. That was before the Services Office opened up in Pakistan?
20 MR. FITZGERALD: Objection to competence, your Honor.
21 THE COURT: Restate the question.
22 Q. Have you ever heard of the services offices or Makda?
23 A. Makda Bakalmak.
24 Q. That's also called the Services Office; is that right?
25 A. Yes.
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1 Q. Loosely translated?
2 A. Yes.
3 Q. That was set up by Mr. Azzam and Mr. Bin Laden back in
4 1985, '86, is that right?
5 THE COURT: If you know.
6 A. No, I don't know.
7 Q. You got to know Mr. El Hage fairly well?
8 A. Yes.
9 Q. Physically would you consider him a big person or a slim
10 person?
11 A. Well, he's a slim person.
12 Q. Were you aware of the birth defect in one of his arms?
13 A. Yes.
14 Q. Do you recall which arm, the hand he writes with?
15 A. I think his left hand writing.
16 Q. And the arm that suffers the wither they are from his
17 birth defect in his right arm?
18 A. Right hand.
19 Q. Now, there is though a person who may be Lebanese, an
20 American that actually does have blondish hair. Do you
21 remember that person?
22 A. No.
23 Q. Do you remember a person at the Institute of Technology
24 that you met who was a Lebanese or Syrian American that had
25 blonde hair?
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1 A. I don't remember.
2 Q. Do you recall who was in charge of studies at the
3 institute?
4 A. At which institute, please.
5 Q. The Institute of Technology that you went to? In
6 Pakistan?
7 A. Yes.
8 Q. You believe that that person was a Syrian or a Lebanese
9 American?
10 A. Yes.
11 Q. Now, to the best of your knowledge you arrived in Nairobi
12 sometime around October of 1993; is that right?
13 A. Yes.
14 Q. And you stayed there for a short period of time went back
15 to the Sudan for about 20 days and then came back to Nairobi
16 is that right?
17 A. Yes.
18 Q. And soon after that is when Abu Hafs and others came in
19 the airplane from the Sudan?
20 A. I wasn't there when he came. I really told that he came
21 there, but I wasn't there.
22 Q. You weren't present in Nairobi when the airplane was flown
23 from Khartoum to Nairobi?
24 A. It was before I arrived to Nairobi.
25 Q. Now, Mr. El Hage arrived -- did Abu Ahmed leave Nairobi
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1 before Mr. El Hage arrived?
2 A. I think so.
3 Q. Would it be fair to say that Mr. El Hage arrived some time
4 in the fall of 1994?
5 A. Yes, he came in '94.
6 Q. Would it be fair that it was in autumn, the fall?
7 A. I don't remember.
8 Q. Did Mr. El Hage boss you around?
9 A. Excuse me?
10 Q. Did he boss you around? Did he give you orders, go do
11 this, go do that, go do this?
12 A. No.
13 Q. You were still taking your flying lessons, is that right?
14 A. Yes.
15 Q. And still traveling back to Sudan as often as you could to
16 stay with your family as often as you could?
17 A. Yes.
18 Q. And when you went around, you have to share a room with El
19 Hage for a while, is that correct?
20 A. Yes.
21 Q. And he treated you as an equal?
22 A. Yes.
23 Q. And with respect?
24 A. Yes.
25 Q. And together you looked for a house for him and his
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1 family, is that right?
2 A. Yes.
3 Q. And you knew that he had his family in Khartoum that he
4 was very anxious to bring them over to Nairobi to be together.
5 Is that right?
6 A. Yes.
7 Q. And you knew Nairobi much better than he did because you
8 had been there for a while by the time Mr. El Hage arrived; is
9 that right?
10 A. Yes.
11 Q. You were leading the search for the house?
12 A. Yes.
13 Q. And the house has -- withdrawn. The house has a wall
14 around the whole piece of property; is that right?
15 A. Yes.
16 Q. And that's not uncommon in middle class section of Nairobi
17 is it?
18 A. Yes.
19 Q. It's common, isn't it? It's common to have that wall
20 around the home for protection in Nairobi?
21 A. Well, Nairobi is a dangerous city.
22 Q. Well, if you live in an area where you can afford there
23 was an area that was sort of in between Nairobi and the
24 airport you ultimately found out, is that right?
25 A. Yes.
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1 Q. And the development that really stood alone with many
2 houses in one area where you turned off the road for the
3 airport and it was surrounded by empty field?
4 A. Yes.
5 Q. And each house there had a wall around the compound?
6 A. Yes.
7 Q. That's because Nairobi is a somewhat dangerous city and
8 for security purposes if you could have a house with that wall
9 you would want one?
10 A. Yes.
11 Q. And within that wall there are actually two buildings?
12 A. Yes.
13 Q. One was the building where Mr. El Hage lived with his wife
14 and many children, is that right?
15 A. Yes.
16 Q. And there was a back room that had a separate living area
17 and a bathroom where you were staying initially?
18 A. Yes.
19 Q. And to get into that back room you did not have to come
20 into the main house. You can get there from the driveway, is
21 that right?
22 A. Yes.
23 Q. How long did you stay there?
24 A. Well, I don't remember exactly how long.
25 Q. Did you stay in your own apartment for a little while?
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1 A. No, I don't understand.
2 Q. When did you return to the Sudan in 1995?
3 A. Probably the end of '95, yes, or early '96.
4 Q. Now, where did you live that whole time?
5 A. Where in the Sudan or in Kenya?
6 Q. In Kenya.
7 A. Well, what happened is exactly when we left and we gave me
8 him and Hasan together, but when he got that house I moved to
9 the place with him, and it was time for the exam for flying
10 course I was taking then I was going to Sudan and came twice.
11 Once I think when I was doing the exams and another time when
12 I was renewing the license.
13 Q. Was that the only time that you were in Nairobi during
14 '94, '95 and Mr. El Hage was there?
15 A. Yeah.
16 MR. FITZGERALD: Objection to form.
17 THE COURT: Restate the question.
18 Q. Mr. El Hage moved in some time in 1994, is that right?
19 A. Yes.
20 Q. And his family joined him, correct?
21 A. Yes.
22 Q. And you were in the separate building at his home, right?
23 A. Yes.
24 Q. Then you took your exam shortly thereafter?
25 A. Yeah, I think I don't know exactly when in '95.
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1 Q. Early '95?
2 A. I don't remember, because when after the exams I went back
3 to Sudan. Then I came back after a year start to renew the
4 license for the pilot.
5 Q. So after the exam you basically left Nairobi?
6 A. Yes.
7 Q. So the only time that you spent with Mr. El Hage was the
8 period when he came until the exam?
9 A. Yeah, he came, I stayed a while but I don't remember how
10 long it was.
11 Q. Two or three months?
12 A. Probably, yes, more.
13 Q. Now, you came to renew your license is that in 1995 or
14 1996?
15 A. I don't remember the date.
16 Q. Well, did you get your license after the exam?
17 A. Yes.
18 Q. How long was that license good for?
19 A. One year. Then I have to renew.
20 Q. So it's likely if you received your license sometime in
21 1995 you came back in 1996?
22 A. Yes.
23 Q. Now, you told us previously that the person handling the
24 money in al Qaeda would not give you -- withdrawn. You told
25 me that Mr. Bin Laden would not give you money to renew your
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1 license?
2 A. Yes, they refused to give me the money.
3 Q. Because al Qaeda didn't have -- withdrawn. You stated
4 that money was too tight to spend it on renewing your license,
5 is that right?
6 A. Yes.
7 Q. You still came to Nairobi, is that right?
8 A. Yes.
9 Q. And you asked Mr. El Hage to help you renew your license,
10 is that right?
11 A. Yes.
12 Q. And even though Mr. Bin Laden said no, Mr. El Hage helped
13 you with the money?
14 A. Yes.
15 Q. He helped you with that even though at that time things
16 were very poor for Mr. El Hage's economic condition; is that
17 right?
18 A. Repeat the question, please.
19 Q. There came a time where the economic conditions for Mr. El
20 Hage in taking care of his family and himself became
21 difficult?
22 A. Yes.
23 Q. And, in fact, he was trying to make all types of business
24 deals that he could to try to raise money and help support him
25 and his family; is that right?
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1 A. Yes.
2 Q. There were a number of times that you actually were
3 involved in some of the business deals that Mr. El Hage was
4 trying to accomplish; is that right?
5 A. Yes.
6 Q. Now, for example, when you were working for Abu Abdallah
7 there was a sugar deal that Mr. El Hage was trying to do. Is
8 that correct?
9 A. Yes.
10 Q. And that was with Mr. Abu Abdallah, is that right?
11 A. Yes.
12 Q. That was just a plain straight business deal, is that
13 right?
14 A. Yes.
15 Q. And you were supposed to fax him information concerning
16 some prices?
17 A. Yes.
18 Q. He actually called you in one of his faxes Captain Jamal,
19 do you remember that?
20 A. Yes.
21 Q. Is that a code name or more like a joke?
22 A. No, it's my nickname was Jamal at a time and captain
23 because I had renew my license at that time.
24 Q. That had nothing to do with al Qaeda or anything like
25 that?
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1 A. No.
2 Q. And Abdul Rakim also tried to be involved in that sugar
3 transaction, is that right?
4 A. Yes.
5 Q. And while you were in Kenya when Mr. El Hage was there did
6 you say that you never saw him prepare any type of report?
7 A. I saw him he had his own computer, and what he's doing is
8 something he was doing something there.
9 Q. He was typing letters and faxes and -- business
10 situations?
11 MR. FITZGERALD: Objection, competence.
12 THE COURT: Sustained.
13 Q. Did you ever tell the government that you never saw Mr. El
14 Hage writing reports?
15 A. I don't remember.
16 Q. I understand you it's a little while ago and you answered
17 lots of questions. Let's see if we can refresh your
18 recollection. I'm going to ask you to take a look at what's
19 been marked 3535-9, page 19, where I made a little block.
20 MR. SCHMIDT: May I approach the witness?
21 THE COURT: The question isn't what it says there.
22 the question is whether reading that refreshes your
23 recollection of a specific event.
24 Do you understand? Do you understand what I've just
25 said?
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1 THE WITNESS: No, sir.
2 MR. SCHMIDT: May I, your Honor?
3 Q. I ask you to look at what's marked over there. Having
4 read that does that help you remember whether you told the
5 government that you never saw Mr. El Hage writing reports?
6 A. Yes.
7 Q. It helped you remember that?
8 A. Yeah, he didn't write anything in front of me.
9 Q. Did the government show you a document that was called the
10 security report?
11 A. Yes.
12 Q. Did you read it?
13 A. Yes.
14 Q. Having reviewed it was it your belief that the person who
15 wrote it was Harun?
16 A. Yes.
17 Q. And was not Mr. El Hage; is that correct?
18 A. I don't remember exactly.
19 Q. To your knowledge you were aware that Harun -- withdrawn.
20 You knew a person name Harun, didn't you?
21 A. Yes.
22 Q. And you knew him from Nairobi; is that correct?
23 A. Excuse me?
24 Q. You knew him from Nairobi, is that correct?
25 A. Knew him what?
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1 Q. Did you know Harun from Nairobi?
2 A. No, from Pakistan Afghanistan.
3 Q. Did you ever see him, when was the last time you saw him
4 in Afghanistan?
5 A. Probably '92.
6 Q. Did there come a time that you saw him again?
7 A. Yes.
8 Q. Where did you see him again?
9 A. I saw him in Nairobi. I saw him in Sudan.
10 Q. When did you see him in Nairobi? How long had you been in
11 Nairobi before you saw Harun?
12 A. For a while.
13 Q. Did you become aware that Harun was involved in false
14 passports or other fraudulent documents?
15 A. Yes.
16 Q. Did you ever see Wadih El Hage involved with false
17 passports?
18 A. No.
19 Q. There came a time where Mr. El Hage left Nairobi --
20 withdrawn. You learned at some point that Mr. El Hage left
21 Nairobi for the United States; is that correct?
22 A. Yes.
23 Q. Do you know of any knowledge that anybody was sent over to
24 take Mr. El Hage's place?
25 A. Take over? Excuse me.
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1 Q. Right, do you know if anybody was sent over to replace
2 Mr. El Hage?
3 (Witness consults with interpreter)
4 A. No, I don't know.
5 Q. When you were in Nairobi at Mr. El Hage's, the building
6 outside Mr. El Hage's home you learned that Mr. El Hage was
7 trying to register a nongovernmental organization called Help
8 African People?
9 A. Yes.
10 Q. And were you aware of the difficulties that he was having
11 trying to register this nongovernmental organization?
12 A. Yes.
13 Q. Did he express his frustration frequently about how
14 difficult it was?
15 A. Yes.
16 Q. Were you aware that eventually it was registered?
17 A. Yes.
18 Q. And did you become aware that there were certain projects
19 that Help Africa People was involved in?
20 A. No.
21 Q. Did you learn about the malaria project with Harun?
22 A. Yes. Excuse me. There were studies of this project. You
23 was talking about studies of his project.
24 Q. And was Harun sent to Somalia to do a study of the malaria
25 project in Somalia?
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1 A. I don't remember but they were talking about the project
2 of malaria.
3 Q. And was there also a project concerning irrigation that
4 they were trying to do?
5 A. I don't remember.
6 Q. Before funding the malaria project they wanted to have
7 some type of information about the usefulness of that project,
8 is that right?
9 A. Yes.
10 Q. Now, the project was for the area of Somalia just over the
11 border?
12 MR. FITZGERALD: Objection, competence, your Honor.
13 THE COURT: If he knows.
14 Q. If you know?
15 THE COURT: Ask him whether he knows.
16 A. Yes.
17 Q. Now, you also are aware of a nongovernmental organization
18 called Mercy International, is that right?
19 A. Yes.
20 Q. Who was in charge of Mercy International when you first
21 arrived in Nairobi? Withdrawn.
22 Who was the first person that you became aware of as
23 the head of Mercy International relief organization when you
24 first arrived in Nairobi?
25 A. Abu Jamal Amrik.
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1 Q. The Mercy International relief agency had some type of
2 association with some Bin Laden people, is that right?
3 A. They were dealing with some people Bin Laden.
4 Q. You're aware that Mr. Bin Laden gave a lot of money to
5 relief in the Sudan, weren't you?
6 A. In Sudan, yes.
7 Q. That wasn't a surprise that Mr. Bin Laden would have
8 contact with relief agencies which he gave money to these
9 agencies, is that right?
10 MR. FITZGERALD: Objection, your Honor.
11 THE COURT: Sustained. Form of the question.
12 Q. You're aware that Bin Laden gave money to relief agencies?
13 A. Yes, in Afghanistan.
14 Q. Do you recall discussions of relief at the camps in Bosnia
15 that was supported by Mr. Bin Laden?
16 A. No.
17 Q. Now, another person who was involved with Mercy
18 International relief agency was Ahmed Tik; is that right?
19 A. Yes.
20 Q. He ended up taking over and running the agency; is that
21 right?
22 A. Yes.
23 Q. And were you friendly with Ahmed Tik?
24 A. Yes.
25 Q. Did you see him socially as well as doing business --
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1 Withdrawn. Did you see him socially?
2 A. Yeah.
3 Q. It's your understanding that Mercy International supported
4 orphanages in Somalia; is that correct?
5 A. Refugees?
6 Q. Yes.
7 A. Yes.
8 Q. They supported hospitals in Somalia?
9 A. Yes.
10 Q. They built mosques in Somalia?
11 A. No. There are different agencies that, you know, some of
12 them they have mosques. Some of them they are specialize,
13 some of them orphans.
14 Q. And the school?
15 A. Schooling.
16 Q. Was it sometimes difficult for you to travel in and out of
17 Kenya?
18 A. No.
19 Q. You had a Moroccan passport?
20 A. Yes.
21 Q. Now, while you were -- you knew that Mr. El Hage while
22 applying to register the NGO was also trying to work in the
23 gem stone industry?
24 A. Yes.
25 Q. And in fact there were, he had many books about gems in
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1 his home, is that right?
2 A. Yes.
3 Q. And you had read a number of those books to try to learn
4 about the gem stone industry as well, right?
5 A. Yes.
6 Q. And Mr. El Hage was contacting people that he knew
7 everywhere trying to see if they were able to sell gem stones
8 and that they could make a profit together; is that right?
9 A. Yes.
10 Q. And do you know that he gave, are you aware that he gave
11 samples of his gem stones to Abu Haf?
12 A. Who?
13 Q. The gentleman I think who lived in Queens is it?
14 A. Yes.
15 Q. And also to Adelka?
16 A. Yes.
17 Q. Who lived in Italy?
18 A. Yes.
19 Q. And, in fact, they lost the stones and had to pay a
20 hundred dollars to Mr. El Hage for the lost stones?
21 A. They didn't lost the stones.
22 Q. They sold?
23 A. I don't know what happened there.
24 Q. Now, do you know that Mr. El Hage traveled within Africa
25 concerning the stones. Is that right?
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1 A. In Kenya, yes.
2 Q. Did he go to Tanzania?
3 A. I think so, yes.
4 Q. Did he also send people to stones in Uganda?
5 A. I don't remember.
6 Q. Do you remember talking about the blue stone a thing call
7 lapis lazuli stone?
8 A. Just about stones, but I don't remember particular name.
9 Q. When he was, when you were already back in Sudan part of
10 communications that you had with Mr. El Hage again was also
11 about stones?
12 A. Yes.
13 Q. Trying to sell a stone?
14 A. Yes.
15 Q. You also had conversations or faxes concerning ostrich
16 eyes, you remember ostrich eyes?
17 A. Yes.
18 Q. Mr. El Hage found somebody who had an ostrich farm who
19 wanted to sell the eyes?
20 A. Yes. The meat, yes.
21 Q. He was communicating to you and Abu Abdallah in the Sudan?
22 A. Yes.
23 Q. Now, there was in Kenya Mr. El Hage did not have a beard;
24 is that correct?
25 A. No.
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1 Q. Did he ever a beard?
2 A. No.
3 Q. On direct examination you discussed the arrest of a few
4 people including Ahmad by Sudanian authorities, do you
5 remember that?
6 A. Yes.
7 Q. And apparently that was because it was your understanding
8 that there was a conversation that Mr. Ahmad had with a Sheik
9 Bilala?
10 A. It was Abu had a mad with Sheik Bilala.
11 Q. And Sheik Bilala was an opposition leader in Kenya; is
12 that right?
13 A. Yes.
14 Q. And the opposition that he was a member of were Muslims
15 opposition?
16 A. Yes.
17 Q. And he was considered a religious traditional Muslim?
18 A. Yes.
19 Q. And his supporters were religious traditional Muslims, is
20 that correct?
21 A. He support what?
22 Q. His supporters, the group that he led was Muslim, many
23 religious Muslims?
24 A. Yes.
25 Q. And you're aware living in Kenya during that time that the
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1 Kenyan government opposed the religious Muslims having power;
2 is that right?
3 A. I can't say that.
4 Q. Well, they were opposed to Kalala, didn't they?
5 A. Yes.
6 Q. And a mere telephone call to Bilala brought the Kenyan
7 police to your apartment?
8 MR. FITZGERALD: Objection, your Honor.
9 MR. SCHMIDT: Withdrawn.
10 THE COURT: Sustained.
11 Q. A telephone call from Chief Bilala brought the police to
12 your apartment, didn't they?
13 MR. FITZGERALD: Objection.
14 THE COURT: Sustained.
15 Q. Is it your understanding that as a result of only a
16 telephone call --
17 MR. FITZGERALD: Objection.
18 THE COURT: Sustained.
19 Q. Now, the authorities, the people in power in Kenya at the
20 time that you were there, were not Muslims, is that correct?
21 A. Some of them they are Muslims.
22 Q. The president at that time was Mr. Morton?
23 A. Yes.
24 Q. And the Muslim population was basically most the largest
25 portion of the Muslim population was up along the Somalia
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1 border and down the coast; is that correct?
2 MR. FITZGERALD: Objection to competence.
3 THE COURT: Sustained.
4 Q. Did you have conversations with members of al Qaeda who
5 went to Somalia came back from Somalia concerning the
6 difficulty that they had with --
7 A. Yes, in the border.
8 Q. Did those discussions concern the Kenyans trying to
9 prevent Muslims coming into becoming a factor in Kenya?
10 A. I don't think so.
11 Q. Were you aware from reading and watching television in
12 Kenya that the Kenyan government regularly harassed and caused
13 difficulty to religious Muslims?
14 MR. FITZGERALD: Objection, your Honor.
15 THE COURT: Sustained.
16 Q. It was a concern of the people going to and from
17 Somalia -- withdrawn. Was the Kenyan government a concern --
18 withdrawn.
19 Being caught by the Kenyan government is that a
20 concern by the people going to and from Somalia court?
21 MR. FITZGERALD: Time frame.
22 THE COURT: Which people? I assume that al Qaeda
23 members?
24 Q. Yes, al Qaeda members.
25 THE COURT: Did you have conversations with members
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1 of al Qaeda about their concern at the border?
2 THE WITNESS: I didn't understand the question.
3 THE COURT: Restate the question.
4 Q. Did you have conversations with members of al Qaeda who
5 went and came back from Somalia of their concern with being
6 stopped by Kenyan authorities?
7 A. Yes, probably, yes.
8 Q. It's your understanding that the people -- withdrawn.
9 That you went to Nairobi not only to learn to fly, but to
10 assist people going in and out of Somalia; is that correct?
11 (Witness consults with interpreter)
12 THE INTERPRETER: Can you kindly repeat the question?
13 Q. One of your, one of the things that you were requested to
14 do when you were in Nairobi was to assist the people who were
15 traveling to and from Somalia?
16 A. It wasn't my request. It was, it was normally I can do
17 this if I have time. It wasn't mandatory that I do that.
18 Q. It was your understanding that the group of al Qaeda
19 people who were originally sent to Kenya, was to help the
20 travel between to and from Somalia?
21 A. Yes, if you can do something you will do that.
22 Q. Now, you were aware while you were still in Afghanistan of
23 people traveling from al Qaeda to Somalia; is that right?
24 A. I heard.
25 Q. And you heard from al Qaeda members; is that right?
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1 A. Yes.
2 Q. And you had heard from al Qaeda members the terrible
3 problems that the Somalis were having after the fall of the
4 leaders of the country?
5 A. Yes.
6 Q. You were aware of the famine and the wars within Somalia
7 at that time; is that right?
8 A. Yes.
9 Q. And you knew from your conversations with Mr. Bin Laden or
10 al Qaeda that there was a concern about the suffering of
11 brother Muslims in Somalia?
12 MR. FITZGERALD: Objection. Clarify who he had the
13 conversation with.
14 THE COURT: Yes.
15 Q. Mr. Al Qaeda and Somalians?
16 MR. FITZGERALD: That is the objection.
17 THE COURT: Separate.
18 MR. SCHMIDT: Are they --
19 THE COURT: Separate.
20 Q. You had conversations with members of al Qaeda about the
21 desire to help the Muslims in Somalia to try to help them from
22 their starvation and from the bandits that were there?
23 A. Yes, it is a wish to help Muslims everywhere in the world.
24 Q. But did you ever hear Mr. Bin Laden talking about early on
25 about trying to help the Muslim people of Somalia?
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1 A. I didn't hear from Bin Laden himself.
2 Q. Now, from your conversations with members of al Qaeda is
3 it your understanding that the first al Qaeda members that
4 went to Somalia went to an area that's called Kadisla?
5 A. Kadisla?
6 Q. Yes.
7 A. The first members of al Qaeda they went to Kadisla. The
8 first members they went to the north of Somalia.
9 Q. The part of Somalia that's near Dijbouti; is that right?
10 A. Yes.
11 Q. Are you familiar with the map of Somalia?
12 A. Yes, I can.
13 MR. SCHMIDT: Going to show this witness what has
14 been marked as defendant WEHD. May I, your Honor?
15 THE COURT: Yes.
16 Q. Now, could you make a mark if you can where the first
17 group of al Qaeda went to in Somalia? Can you do it?
18 A. Well, I think this area but I don't know exactly where.
19 Q. The northern portion near Dijbouti, is that correct?
20 A. Yes. Somewhere in that area.
21 Q. That was in the end of 1991 or early 1992; is that
22 correct?
23 A. Yes.
24 Q. And that ended some months later because of the
25 difficulty, internal difficulty dealing with the Somalians, is
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1 that correct?
2 A. Yes.
3 Q. Somalians wanted to do things their own way and they said
4 we'll take your money, but we don't want you?
5 A. I don't know exactly what happened.
6 (Continued on next page)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 Q. Also, shortly after that time, also the end of 1991, the
2 beginning of 1992, people were sent to two other areas in
3 Somalia, is that correct?
4 A. Yes.
5 Q. One was the area that is called Ogaden.
6 A. Yes.
7 Q. Ogaden is really in Ethiopia at this period of time, is
8 that correct?
9 A. Until now, yes.
10 Q. Even though it's in Ethiopia, the people who live there
11 are Somalians, is that right?
12 A. Yes.
13 Q. And the reason why it is part of Ethiopia is simply
14 because when the Europeans divided it up they gave that
15 portion to the country of Ethiopia.
16 A. I don't know what happened.
17 Q. They also sent a group of people to the south part of
18 Somalia near the Kenyan border, is that correct?
19 A. Yes.
20 Q. Would that be the area that was called the Gedo region of
21 Somalia?
22 A. Yes.
23 Q. In the northern portion of Somalia there were people who
24 tried to form an Islamic government to rule in the northern
25 portion of Somalia -- withdrawn. I will rephrase that
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1 question.
2 Were you aware in your conversations with Al Qaeda
3 members that the reason that the group of Al Qaeda people were
4 sent to the area around Hargeysa was that there was a
5 religious Islamic group there that was trying to help form an
6 Islamic government?
7 A. Yes.
8 Q. And the people in the south, the Gedo region, there was a
9 group of Islamics that was also trying to form a society based
10 on Islam, is that correct, based on your conversations with Al
11 Qaeda members?
12 MR. FITZGERALD: Just asking for a time frame.
13 Q. At the time frame that the people were sent.
14 THE COURT: When was that? When to your knowledge
15 were Al Qaeda members sent to southern Somalia?
16 A. I think before I came to Nairobi, '92, I think.
17 Q. Did you think that it might have been the end of 1991 or
18 the beginning of 1992?
19 A. I think during '92, because they were still in
20 Afghanistan.
21 Q. Do you remember when you first were discussing Somalia
22 with government agents that you told them that Al Qaeda sent
23 two or three groups to Somalia and Ogaden at the end of 1991
24 or the beginning of 1992?
25 A. Probably, yes. If I said that, it is correct, but I think
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1 I am wrong. I think maybe 1992 they came to that place.
2 Q. Then if it was 1992, it would be the early part of 1992.
3 A. Probably.
4 Q. There was actually a group for name for the group in the
5 southern portion, the Gedo region, is that correct? Al
6 Ittihad Al Islami, isn't that right?
7 A. Al Ittihad al Islami is the main Islami group in Somalia,
8 so the same one in the beginning.
9 Q. At some point after the Barre regime was overthrown and
10 there was chaos in Somalia, the al Ittihad group sort of split
11 to different areas, is that right?
12 A. Yes.
13 Q. Based on your conversations with members of Al Qaeda, is
14 that right?
15 A. Yes.
16 Q. One group formed in the Gedo region of Somalia.
17 Did you learn from members of Al Qaeda that Somalia
18 is also broken up by clans?
19 A. Yes.
20 Q. Did you learn from discussions with members of Al Qaeda
21 that the clan of Mohamed Faraj Aidid was attacking the clan of
22 Siad Barre?
23 A. I don't know exactly was he attacking Siad Barre, but they
24 were fighting each others.
25 Q. Did you ever hear the word the Marehan clan?
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1 A. Marehan?
2 Q. Yes.
3 A. Probably heard the name but I don't remember.
4 Q. But you were aware that there were fierce battles between
5 Aideed's group and other groups?
6 A. Yes.
7 Q. That was causing great destruction in Somalia?
8 A. Yes.
9 Q. And it was your understanding that the Islamic groups in
10 Somalia were trying to end the clan fighting and have a
11 civilized society that cared for the people of Somalia, is
12 that right?
13 A. Yes.
14 Q. It is your understanding that Al Qaeda members were sent
15 to help train these religious Somalis to defend their land and
16 their people.
17 A. Yes.
18 Q. That included the Somalis that lived in the Ogaden, is
19 that correct?
20 A. Yes.
21 Q. The Somalis that lived in the Gedo region, is that
22 correct?
23 A. Yes.
24 Q. And the unsuccessful attempt of the Somalis that lived in
25 the north of Hargeysa, is that correct?
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1 A. Yes.
2 Q. All of this, all of this assistance from Al Qaeda occurred
3 before anybody had any idea that the United Nations or the
4 United States was going to come and help the Somalis, isn't
5 that correct?
6 A. Yes.
7 Q. Were you aware in your discussions with Al Qaeda that
8 during the 1992 period, that Aideed was anti-al Ittihad?
9 A. I don't know that.
10 Q. Did you ever hear the name of a person called Ali Mahdi
11 Mohamed?
12 A. Yes.
13 Q. He had support, based on your conversations with Al Qaeda
14 members, he had support of the religious Muslims in Somalia,
15 didn't he?
16 A. I don't think so.
17 Q. You know that he and Mr. Aideed were fighting constantly
18 as well.
19 A. Yes.
20 Q. And they were causing destruction in Mogadishu, weren't
21 they?
22 A. Yes.
23 Q. The group, the original group of Al Qaeda people sent to
24 Nairobi was to establish for logistical purposes, helping the
25 transit of the Al Qaeda people from Afghanistan into Somalia,
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1 isn't that right?
2 A. I don't know who --
3 Q. Do you remember saying to the government that the Nairobi
4 station was established, was only established for the
5 logistical purposes to help the guys traveling to and from
6 Somalia?
7 A. Yes.
8 Q. That was back either in the end of 1991 or earlier in
9 1992, is that right?
10 A. I said that when I was there, when I knew what they are
11 doing.
12 Q. But there were people from Al Qaeda in Nairobi when you
13 arrived, right?
14 A. Yes.
15 Q. They were sent earlier, weren't they?
16 A. Yes. There is one Kenyan from Al Qaeda, he was doing that
17 job.
18 Q. Some period of time after the Al Qaeda people were in
19 southern, south, the area of the Gedo region in Somalia, the
20 area of the Ogaden region in Somalia, there came a time when
21 the UN came into Somalia. Do you remember that?
22 A. Yes.
23 Q. And at some point American troops also came into Somalia,
24 is that right?
25 A. Yes.
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1 Q. Already the members of Al Qaeda were in Somalia, or in and
2 out of Somalia and back in Somalia for almost a year by the
3 time the UN and the Americans went into Somalia.
4 A. Yes.
5 Q. Did you learn about the attacks by the UN and the
6 Americans on groups in Somalia?
7 MR. FITZGERALD: Objection to form.
8 THE COURT: Yes.
9 MR. SCHMIDT: This goes to his state --
10 THE COURT: Yes, but from whom.
11 MR. SCHMIDT: Withdraw that.
12 Q. Did you have discussions in Al Qaeda about the American
13 and UN attacks on certain groups of Somalis?
14 A. I don't know if they were attacking certain groups but
15 there was problems there in Mogadishu.
16 Q. Do you recall if you heard from other Al Qaeda members
17 that the problems, one of the major sources of the problems
18 was Mr. Aideed?
19 A. Yes.
20 (Continued on next page)
21
22
23
24
25
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1 Q. Did you ever see film or photographs or a report of an
2 attack by American troops on what is called Abdi House?
3 MR. FITZGERALD: Objection, your Honor.
4 MR. COHN: I would like to be objection. I would
5 like to be heard on this at sidebar at some point.
6 THE COURT: I tell you, I am told the jurors' lunches
7 are here. So why don't we break for lunch until 2:00.
8 (Jury excused)
9 (Record read)
10 MR. FITZGERALD: My objection, he is asking in
11 essence has he seen TV reports, photos, film? This is classic
12 hearsay. He has to limit it to Al Qaeda discussions or he
13 wasn't there. On direct, every objection is to foundation and
14 competence, and now he is asking if he has ever seen TV.
15 MR. COHN: Your Honor, my objection is somewhat more
16 general, and it is precautionary. It was my understanding at
17 the beginning of this trial that we were not going to get into
18 the shoot-out, the 18 dead Americans and dragging an American
19 body through the street, and it is my fear that this line of
20 questioning opens the door to that if the government wishes to
21 enter. So I object. I don't think it is particularly
22 relevant from our point of view. I don't speak for Mr.
23 Schmidt's view of its relevance to his case, but I believe I
24 speak for the capital defendants at least, that we object.
25 THE COURT: Mr. Schmidt.
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1 MR. SCHMIDT: Your Honor, I am obviously not bringing
2 out the information about the Abdi House attack for the truth
3 of the matter at this time through this witness.
4 THE COURT: What are you bringing it out for?
5 MR. SCHMIDT: I am bringing it out for his state of
6 mind and then the Al Qaeda's state of mind about the American
7 conduct in Somalia.
8 THE COURT: What is the significance of his state of
9 mind with respect to the American conduct in Somalia?
10 MR. SCHMIDT: It is his state of mind and the
11 discussions with Al Qaeda's state of mind. Not just his in
12 particular, it is also Al Qaeda's.
13 THE COURT: Let's take them one at a time. What is
14 the relevance of his state of mind with respect to American
15 actions in Somalia?
16 MR. SCHMIDT: It is not just his, it's Al Qaeda's.
17 Also he apparently --
18 THE COURT: All right. If we are limiting it then to
19 what this witness can tell us about Al Qaeda's state of mind
20 with respect to American actions in Somalia, then the
21 questioning would be limited to what Al Qaeda members told him
22 on that subject. Don't you agree?
23 MR. SCHMIDT: Or what he told other Al Qaeda members.
24 THE COURT: What is what he told -- if his state is
25 irrelevant, what is the relevance of what he told them?
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1 MR. SCHMIDT: What he told that person becomes aware
2 of this, it becomes that person's state of mind. Moreover --
3 THE COURT: No, no, no. That's too remote. If you
4 want to say did he have a conversation with Al Qaeda members
5 concerning Americans' actions in Somalia, that's a permissible
6 question. If you want to follow up, and what did Al Qaeda
7 members tell you of Americans' actions in Somalia, that's a
8 permissible question.
9 MR. SCHMIDT: It is also my understanding of the plea
10 of this witness that the crime that he is charged involves his
11 conduct in relation to Americans in Somalia.
12 THE COURT: Yes.
13 MR. SCHMIDT: So that is part of his plea and his
14 state of mind is part of --
15 THE COURT: And the relevance of that to El Hage is
16 what?
17 MR. SCHMIDT: The government claims that Mr. El Hage
18 is part of Al Qaeda. But now I am going into his credibility
19 and his involvement in the criminal acts that he has pled
20 guilty to.
21 THE COURT: You can ask him what he did, what acts he
22 took, assuming you haven't covered that already, and I thought
23 you had. You asked him whether part of his assignment besides
24 learning how to fly was to help, and he said to the extent I
25 could.
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1 MR. SCHMIDT: If I may, your Honor, his state of
2 mind --
3 THE COURT: So are we in agreement now that films, TV
4 or what he read is not a permissible question? I will sustain
5 the objection to that question.
6 MR. SC