28 February 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 11 of the trial, February 27, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
1505 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 27, 2001 9:50 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 1506 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 SAM A. SCHMIDT 7 JOSHUA DRATEL KRISTIAN K. LARSEN 8 Attorneys for defendant Wadih El Hage 9 ANTHONY L. RICCO EDWARD D. WILFORD 10 CARL J. HERMAN SANDRA A. BABCOCK 11 Attorneys for defendant Mohamed Sadeek Odeh 12 FREDRICK H. COHN DAVID P. BAUGH 13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 14 JEREMY SCHNEIDER DAVID STERN 15 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 16 17 18 19 20 21 22 23 24 25 1507 1 (Trial resumes; jury not present) 2 THE COURT: Are there any matters that need be 3 addressed before the jury is brought in? 4 MR. FITZGERALD: No, Judge. I think Mr. Dratel is 5 going to lend me something that I needed, and we're good to 6 go. 7 THE COURT: All right. 8 MR. FITZGERALD: Thank you, Judge. 9 THE COURT: The witness can resume the stand. 10 The government's requests to charge is due on March 11 the 9th. Defendants' requests to charge are due on March 12 23rd, March 23rd. That is, the defendants on that day are to 13 reply to the government's requests and to furnish any 14 additional requests to charge. Obviously I will entertain 15 requests to charge subsequent to that date based on any 16 subsequent developments in the case. 17 It is my practice to give the jury a written copy of 18 the charge while it is being delivered. For that reason and 19 for other reasons, I am very strict about not entertaining 20 perfectly valid and proper requests to charge which are not 21 made at the charging conference or prior thereto. I do that 22 not simply because of the logistics of modifying a charge 23 which is given to the jury in writing, but because any 24 supplemental instructions to the jury get blown out of 25 proportion. 1508 1 So please understand that the requirement that the 2 requests to charge which can be made at an earlier date will 3 not be entertained at the 11th hour, the 11th hour being the 4 charging conference, unless the circumstances indicate that 5 the request could not have been made earlier. 6 All right, let's bring in the jury, please. 7 Counsel for Al-'Owhali will next cross-examine the 8 witness, to be followed by Mr. Ruhnke on behalf of K.K. 9 Mohamed. 10 MR. COHN: That's right, Judge. 11 (Jury present) 12 THE COURT: Good morning. Just one other matter of 13 logistics, and that is on Tuesday, March 6th, we will start at 14 1:30. That's going to be post lunch and that is just for that 15 day. 16 I think our next order of business is 17 cross-examination on behalf of defendant Al-'Owhali by Mr. 18 Cohn. 19 L'HOUSSAINE KHERCHTOU, Resumes 20 CROSS-EXAMINATION 21 BY MR. COHN: 22 Q. Yesterday, Mr. Kherchtou, Mr. Wilford asked you some 23 questions about scholars disagreeing about the killing of the 24 women, children and innocents. Remember those questions? 25 A. Yes. 1509 1 Q. It is a fact, is it not, Mr. Kherchtou, that no fatwah 2 issued by Usama Bin Laden or anybody else has called for the 3 killing of innocents, isn't that true? 4 A. Well, I don't remember the statement of Usama Bin Laden. 5 Q. You don't know? 6 A. Yes. 7 Q. So what you were talking about with Mr. Wilford was 8 speculation about if it had happened, then that's what would 9 have been the result; is that right? 10 (Witness consults with interpreter) 11 A. What I know, sir, is -- 12 Q. Is that right, yes or no? 13 (Witness consults with interpreter) 14 A. (Through the interpreter) The answer is no. 15 Q. It's not speculation? Have you ever seen an affidavit -- 16 a fatwah issued by Mr. Bin Laden that called for the killing 17 of innocents and women and children? 18 (Witness consults with interpreter) 19 A. (Through the interpreter) I heard of the statement -- 20 Q. Have you ever seen a fatwah? 21 MR. FITZGERALD: May he complete the answer, your 22 Honor? 23 MR. COHN: Your Honor, may the answer be 24 responsive -- not what he heard, but has he seen is the 25 question. 1510 1 THE COURT: All right. I'll permit that question to 2 be asked and permit counsel to inquire further on redirect if 3 it sees fit. 4 MR. COHN: Good. 5 Q. Have you ever seen such a fatwah? 6 A. (Through the interpreter) No. 7 Q. Let me show you what has been marked as Government Exhibit 8 1600-T in evidence. 9 MR. COHN: Your Honor, may I approach as needed 10 without asking each time? 11 THE COURT: Yes. 12 MR. COHN: Thank you. 13 Q. Have you ever seen that document before. 14 (Witness consults with interpreter) 15 THE COURT: Are you showing him the English version? 16 MR. COHN: Yes. 17 A. (Through the interpreter) No, but I heard about it. 18 Q. Fine. So you don't know from seeing it whether there is 19 any such reference to killing women, children and innocents in 20 it, do you? 21 (Witness consults with interpreter) 22 A. (Through the interpreter) What evidence? 23 Q. Excuse me? 24 THE INTERPRETER: The question which was posed by the 25 witness is, what evidence? 1511 1 Q. Sir, you do not know from seeing that document whether it 2 has anything in it about killing women, children and 3 innocents, do you, from seeing it? 4 (Witness consults with interpreter) 5 THE INTERPRETER: You want him to read it? 6 MR. COHN: No, I think he's never read it. 7 Never mind. The point's made, I'll withdraw it. 8 THE COURT: That comment is stricken and please avoid 9 similar comments. 10 MR. COHN: Thank you, your Honor. 11 Q. Let's turn to August 7th, 1998. That was the day you were 12 arrested at the airport, is it not? 13 (Witness consults with interpreter) 14 A. (Through the interpreter) No. 15 Q. August 7th, 1998, the day of the bombing? 16 (Witness consults with interpreter) 17 A. (Through the interpreter) I was arrested on the 11th of 18 August. 19 Q. On the 11 of August, okay. 20 Would you prefer to do this in Arabic, through 21 translation? Does that make you more comfortable, sir? 22 (Witness consults with interpreter) 23 A. (Through the interpreter) It's the same. 24 Q. Fine, but we are -- you are turning to the interpreter on 25 every question. I just want to get a system done that we can 1512 1 do this. Which do you prefer? 2 (Witness consults with interpreter) 3 A. (Through the interpreter) Sometimes some of the words I do 4 not understand and I want to make sure that I'm giving the 5 correct answer. 6 Q. Well, you were interviewed in Nairobi for four days by 7 someone where there was a recording. Do you remember you 8 talked to Mr. Wilford about that? 9 A. Yes. 10 Q. And those interviews were done in English, were they not? 11 A. Yes. 12 Q. Four days' worth? 13 A. Yes. 14 Q. Was there an interpreter there? 15 A. No. 16 Q. You managed? 17 A. Yes. 18 Q. So you were arrested on the 11th; is that right? 19 A. Yes, sir. 20 Q. And you in fact had been concerned that you might be 21 arrested after the bombing; is that right? 22 A. Yes. 23 Q. But when you were arrested at the airport, you were 24 initially told that you were not under arrest, isn't that 25 true? 1513 1 A. Yes. 2 Q. And you were taken to some precinct or other; is that 3 right? 4 (Witness consults with interpreter) 5 A. Yes. 6 Q. What time of day was that? 7 A. Around 9 or 10:00 in the p.m. 8 Q. P.M.? 9 A. Yes. 10 Q. Were you questioned at all that night? 11 A. No. 12 Q. Were you advised of any rights at all that you might have? 13 A. No. 14 Q. Were you told whether or not you were under arrest? 15 A. No. 16 Q. And where did they put you? Did they put you in some sort 17 of cell? 18 A. Yes. 19 Q. Describe the cell. 20 A. Well, it's a small room with many other criminals and no 21 bathroom in it and nothing on the floor in which you can 22 sleep. It has only one small window on the top of the cell, 23 and I think -- during the night, they closed the door and they 24 came back at 2:00 to make a check for everybody. 25 Q. Just describe the cell for us. I'll ask you about other 1514 1 things. I'm just asking for a physical description of the 2 cell at the moment. Have you finished with that? 3 A. It's a small room, maybe four meters by four. 4 Q. Now, did you have a mattress? 5 A. No. 6 Q. Did you have a blanket? 7 A. No. 8 Q. Were there any washing or shower facilities available to 9 you? 10 A. There is a restroom in the other part, but if it's closed, 11 they gave us -- 12 (Witness consults with interpreter) 13 A. (Through the interpreter) -- a water jar or something. 14 Q. And that was for drinking water? 15 A. No. 16 Q. For bathing? 17 A. For if you had to -- 18 (Witness consults with interpreter) 19 A. (Through the interpreter) Just to piss in it. 20 Q. I'm sorry, I didn't catch it. 21 A. Just to piss in it. 22 Q. For elimination of your body waste? 23 A. (Through the interpreter) Urinate in. 24 Q. But they gave you nothing to wash your hands with or to 25 shower or to prepare yourself to pray or anything like that; 1515 1 is that right? 2 A. Well, there is a toilet and bathroom where you can wash 3 your hands, but if the door is open you can go there. 4 Q. But the door wasn't open, right? 5 A. During the night it's not open. 6 Q. I see. Well, in fact -- well, we'll get to that. 7 Now, even before you were arrested you were concerned 8 about the Kenyan police, were you not? 9 A. Yes. 10 Q. I mean, you already knew that they were corrupt because 11 they had purchased -- they made you bribe them on your 12 brother's behalf, right? 13 A. Yes. 14 Q. And when I say they were corrupt, I'm not inferring that 15 all Kenyan police were corrupt, but that there was a 16 corruption problem, right? 17 A. Yes. 18 Q. Which you in fact thought was fairly systemic, did you 19 not? Do you understand that? That it was widespread 20 throughout the department? 21 MR. FITZGERALD: Objection, your Honor. 22 MR. COHN: It's his state of mind that I'm concerned 23 about, your Honor, not what he knows. 24 THE COURT: I'll allow it as not for the truth but 25 for this witness's understanding. 1516 1 (Witness consults with interpreter) 2 A. Yes. 3 Q. And in fact, by the 11th when you were arrested you knew 4 that there had been widespread deaths, destruction and 5 injuries to Kenyan citizens, didn't you? 6 A. Yes. 7 Q. And so at the time you were arrested, is it fair to say 8 that you were concerned about the Kenyan police's reaction to 9 that. 10 (Witness consults with interpreter) 11 A. Yes, sir. 12 Q. Did anybody interview you on the 12th, the next day after 13 you were arrested? 14 A. No. 15 Q. Did anybody come to see you, tell you whether or not you 16 were going to be arraigned or could see a lawyer or what was 17 going on with you? 18 A. No. 19 Q. What about the 13th? 20 A. No. 21 Q. 14th? 22 A. I think on the 14th. 23 Q. What happened on the 14th? 24 A. It was two days or three days after that, some people came 25 to me and they were interrogating me. 1517 1 Q. You say the 13th or the 14th. Are the people that began 2 interrogating you at that time the Kenyan police, or was it 3 somebody else, some person from another country? 4 A. Somebody took me to meet that person. 5 Q. And you say that was three or four days after you were 6 arrested? 7 A. Yes, sir. 8 Q. Is that right? 9 A. Yes. 10 Q. Let me direct -- have you had an opportunity to look at 11 the 800-page transcript of your interviews from that period? 12 MR. COHN: I'm referring, your Honor, to, for the 13 record, I believe it's 3505-29. 14 Q. Have you had a chance to read that in preparation for your 15 testimony? 16 A. I don't remember the -- 17 Q. It was a big stack of paper about this high which had what 18 purports to be a transcript of the recording that was made of 19 your debriefings. Have you looked at it? 20 (Witness consults with interpreter) 21 A. (Through the interpreter) Which interrogation? 22 Q. The interrogation that took place over four days by this 23 person who wasn't a Kenyan that you say was three or four days 24 after you were arrested. 25 (Witness consults with interpreter) 1518 1 A. (Through the interpreter) No, nobody showed me that. 2 Q. Okay. Well let me show you now pages 352 through 355. 3 MR. COHN: Bear with me one second, your Honor. 4 Q. I'm sorry, that's the wrong reference. 5 While I'm looking for this, how many days did this 6 interrogation take? Was it four, is that a fair statement, 7 four days in a row? 8 A. I don't remember exactly, but probably four or five times. 9 Q. How long were these interrogations, each of them, if you 10 can say? 11 A. It depends. The first one was very short and the others, 12 they are quite longer. 13 Q. Let me show you what is page 97 of that transcript. 14 THE COURT: You want to ask a question before you do 15 that? 16 MR. COHN: It's a refreshment question, your Honor. 17 THE COURT: As to what are you refreshing his 18 recollection? 19 MR. COHN: I will -- 20 THE COURT: Go ahead. 21 MR. COHN: Fine. 22 Q. Let me show you page 97 and ask you to look at the top and 23 ask you if that refreshes your recollection as to what the 24 dates of your interrogation were. 25 Have you looked at it? 1519 1 Isn't it a fact that your interrogation was -- 2 THE COURT: Wait a minute. You had a question asked 3 and there is no answer. The question isn't what it says 4 there, but having looked at that, does that refresh your 5 recollection so that you now remember the dates of your 6 questioning? 7 BY MR. COHN: 8 Q. Does it refresh your recollection? 9 A. Yes. 10 Q. What is your refreshed recollection? What were the dates 11 of your interrogation? 12 A. No, this date, it was -- he was talking about the letter 13 that issued right to my wife. 14 Q. Sir, does it refresh your recollection about what dates? 15 I'm not asking what it refers to, I'm asking does it refresh 16 your recollection, and if so, what are the dates? 17 A. It's 19th. 18 Q. The 19th was one of the days of your interrogation? 19 A. Yes. 20 Q. Was that the last day of your interrogation or was it the 21 second day of your interrogation? 22 A. No, it was one of the last days. 23 Q. And that's page 97 of an 800-page transcript; is that 24 right? 25 A. It's 97, yes. 1520 1 Q. During the time that you were being held, including the 2 time that you were interrogated, did the Kenyan police ever 3 prefer charges against you? 4 (Witness consults with interpreter) 5 A. No. 6 Q. And in fact, during that time you got no reading material; 7 is that right? 8 (Witness consults with interpreter) 9 A. On the last days in the cell they brought me some 10 newspapers. 11 Q. The last days? 12 A. Yes. 13 Q. That was after, in fact, you asked your interrogator to 14 please get you some, at least a newspaper to read, isn't that 15 right? 16 A. Yes, at the last time, yes. 17 Q. So before that you had nothing to read to pass the time, 18 including the four days you say you weren't even questioned at 19 all? 20 A. Yes. 21 Q. And in fact, you asked your interrogator please to be able 22 to get you to bathe or get -- because you were filthy, you 23 smelled bad; is that right? 24 A. Yes. 25 Q. And you were ashamed of that, weren't you? 1521 1 A. Yes. 2 Q. I mean, you are a religious person; is that right? 3 A. Yes. 4 Q. And you pray five times a day? 5 A. Yes. 6 Q. And you are required before you pray to wash? 7 A. Yes. 8 Q. And you had no water to wash with, right? 9 A. Well, sometimes it's difficult to find a clean place to 10 wash. 11 Q. Okay. Fine. 12 In fact, if there is no water available, you were 13 allowed to use clean earth instead; is that right? 14 A. Yes. 15 Q. And there wasn't any of that either because the floor was 16 filthy because it was used as a toilet, isn't that right? 17 A. Yes. 18 Q. And when you wanted to sleep, if you could sleep, you had 19 to lay down in the filth until this man who was interrogating 20 you got you a blanket and a mattress or pallet, isn't that 21 right? 22 A. Yes. 23 Q. And you complained to your interrogator that the Kenyan 24 police were treating you like an animal, isn't true? 25 A. It was once. 1522 1 Q. Yes, it was once. Is that right, but you did complain 2 about it? You said that, didn't you? 3 A. Yeah, because I didn't sleep, I told him I was -- 4 THE COURT: Can you repeat your answer? 5 A. I said I was trying to sleep, I was tired. He wanted to 6 interrogate me. I said I couldn't because I'm tired. 7 Q. Did you say at page 297 of the transcript that -- 8 MR. FITZGERALD: Objection, your Honor. 9 THE COURT: Sustained. 10 Q. Did you use the words "this guy treats me like an animal"? 11 MR. FITZGERALD: Asked and answered, your Honor. 12 MR. COHN: I don't think so, your Honor. 13 THE COURT: No, he did. 14 BY MR. COHN: 15 Q. In fact, you told him at one point you couldn't sleep 16 because you were cold, because the cell was kept so cold, 17 isn't that true? 18 A. Yes. 19 Q. And isn't it a fact, sir, that from the time you were 20 arrested until the time you -- I think you took a plane out of 21 there on the 21st; is that right? 22 A. Yes. 23 Q. Ten days passed; is that right? 24 A. Yes. 25 Q. And is it fair to say, sir, that until the very last day 1523 1 you didn't know whether they were going to put you on a plane; 2 they kept you, they kept you wondering about that, yes? 3 A. Yes. 4 Q. Now, it's also true, is it not, sir, that this person told 5 you how to lie, isn't that right? 6 (Witness consults with interpreter) 7 A. (Through the interpreter) Lie to whom? 8 Q. Fine, did he tell you how to create a cover? 9 A. Yes. 10 Q. And to create a cover, you had to tell untruths, right? 11 You couldn't tell the people that you were trying to keep from 12 finding out that you had been interrogated in this way the 13 truth or they would find out, right? 14 A. Yes. 15 Q. And did he tell you in fact that the best way to have a 16 cover and to tell these untruths was to keep it as close to 17 the truth as you possibly could so that there would be a large 18 measure of truth in your lie? 19 A. Yes. 20 MR. COHN: I have nothing further. 21 THE COURT: Mr. Ruhnke, on behalf of defendant K.K. 22 Mohamed. 23 CROSS-EXAMINATION 24 BY MR. RUHNKE: 25 Q. Mr. Kherchtou, to keep your testimony entirely accurate, 1524 1 I'm going to ask that you answer questions using the 2 interpreter throughout your testimony. 3 A. Okay, sir. 4 Q. Sir, you were approximately 26 or 27 years old when you 5 decided to go to Afghanistan; is that correct? 6 A. Yes. 7 Q. You had grown up in Morocco, correct? 8 A. Yes. 9 Q. You had graduated from high school and also taken some 10 training in the field of catering, correct? 11 A. Yes. 12 Q. And after your training in catering, you lived in Europe 13 for a number of years, living in both France and Italy; is 14 that correct? 15 A. Yes. 16 Q. And by your own admission, until you went to Italy and had 17 contact with the people in Italy, you did not consider 18 yourself a very good Muslim; is that correct? 19 A. Yes. 20 Q. For example, you used to drink alcohol, which is forbidden 21 by Islam; is that correct? 22 A. No, I did not drink alcohol. 23 Q. In any event, you came to the time when you went to Italy 24 and you began talking about what was going on in Afghanistan 25 with other Muslims; is that correct? 1525 1 A. Correct. 2 Q. At the time, as you say, you were 26, 27 years old, you 3 were not married, you had no family, you were young, and it 4 was something of an adventure, was it not, to go to 5 Afghanistan? 6 A. It was a duty as a Muslim. 7 Q. Did you describe it as an adventure to the foreign 8 intelligence officer that you met in Kenya after the bombing? 9 A. If I have said that, so that would be correct. 10 Q. Do you recall being asked this question and giving these 11 answers by the case officer who interviewed you, talking about 12 your decision to go to Afghanistan -- these are your words: 13 "So he was talking a lot about Afghanistan. You have to help 14 your people to do this, to do this, to do this." 15 MR. RUHNKE: You want to translate my sentence. 16 A. If I had said that, so that would be correct. 17 Q. And then you said to this case officer: "And some 18 Egyptian friend, like the one who was killed in Chechnya is a 19 very good guy. He told me, what do you think?" 20 A. I do not recall this conversation. 21 Q. I'm going to show you a document that I believe has a 22 Jencks number, and I'll ask you to look at the bottom of page 23 324 of that document on to page 325. 24 A. The bottom of here? 25 Q. The bottom of 324 onto the top of 325. Would you look at 1526 1 that, please. 2 (Pause) 3 Q. Have you now read that? 4 A. (In English) Yes. 5 Q. Does that help you remember what you told the case officer 6 back in August of 1998? 7 A. At that time I was in jail I do not quite recall each word 8 that I have said, but -- 9 Q. Does this appear to be an accurate transcript of what you 10 told the officer back in August of 1998? 11 A. Possibly it is correct. 12 Q. Did you tell the officer, "We are young. We don't know 13 anything. Let's go. It's an adventure of young. Yeah, let's 14 go. And we went." 15 Did you use those words to the case officer back in 16 August of 1998 or did you not use those words? 17 A. I do not quite recall each word that I have articulated, 18 but when I saw this, it's very possible that I have said that. 19 Q. Now, your purpose, in any event, was to go help Muslims 20 who were in trouble; is that correct? 21 A. Correct. 22 Q. And you traveled to, first to Karachi, which is in 23 Pakistan, correct? 24 A. Yes. 25 Q. And from Karachi, Pakistan you traveled to Peshawar, 1527 1 Pakistan, correct? 2 A. I went to Islamabad then Peshawar. 3 Q. And Peshawar is a town, it's been established, that is 4 near the border to Afghanistan, correct? 5 A. Correct. 6 Q. At the time you went to Afghanistan, were the Russian 7 troops still in Afghanistan? 8 A. They Communist's regime was there and there were Russians 9 assisting them. 10 Q. But the Russian army had withdrawn from Afghanistan by 11 that point; isn't that correct? 12 A. Correct. 13 Q. And what was going on in Pakistan at that point was that 14 the Russians had been driven out by the mujahadeen and now 15 they had returned to kicking out or overthrowing the 16 Russian-backed government, correct? 17 A. Correct. 18 Q. You underwent training for approximately two months, 19 correct? 20 A. Correct. 21 Q. And you trained in a camp in Afghanistan, correct? 22 A. Yes. 23 Q. Did this camp look like what we imagine a military base to 24 be like, made up of permanent buildings, thousands of people 25 there, or what did it look like? 1528 1 A. No, it was a small camp. 2 Q. How many people were in the camp when you were there, 3 including your trainers and people being trained? 4 A. It varied from time to time, but it never exceeded a 5 hundred. 6 Q. After your training you were spoken to privately and asked 7 to become a member of al Qaeda, is that true? 8 A. Yes, and there were other people with me. 9 Q. To your knowledge, how many people in your training group 10 other than you and your friend, the veterinarian, the animal 11 doctor, were asked to become members of al Qaeda? 12 A. Between three and five. 13 Q. And how many people were in your training group? 14 A. It varied between ten and twelve. 15 Q. Ten to twelve in your group? 16 A. Yes. 17 Q. And after being asked to become a member of al Qaeda, they 18 asked you to take training -- "they" meaning al Qaeda as 19 leaders -- asked you to take training as a pilot, correct? 20 A. When? When was that? After I graduated? After I joined 21 al Qaeda? 22 Q. After you joined al Qaeda, you were asked to take training 23 as a pilot, correct? 24 A. I joined the al Qaeda in 1991 and I was offered the 25 training to be a pilot in 1993. 1529 1 Q. You also swore what we refer to as a bayat or a pledge to 2 al Qaeda, correct? 3 A. Yes. 4 Q. And you understood your purpose in al Qaeda was to fight 5 for Islam and to do good things for Muslims all over the 6 world, correct? 7 A. Correct. 8 Q. As your beliefs progressed as a member of al Qaeda, you 9 came to understand that one purpose of al Qaeda was to kill 10 American nationals abroad, isn't that true? 11 A. Yes. Correct. 12 Q. And you became aware of the structure of al Qaeda. You 13 knew, for example, that Usama Bin Laden was the emir or the 14 leader of al Qaeda, correct? 15 A. Yes. 16 Q. The number two person in al Qaeda until he was killed in 17 the ferry accident on Lake Victoria in 1996 was Abu Ubaidah al 18 Banshiri, correct? 19 THE INTERPRETER: Can you kindly say the name again? 20 I could hardly understand. 21 MR. RUHNKE: That's probably not your fault. 22 Abu Ubaidah al Banshiri. 23 A. Yes. 24 Q. And that the military commander of al Qaeda was a man who 25 was known as Abu Hafs, correct? 1530 1 THE INTERPRETER: Abu who? 2 MR. RUHNKE: Hafs, H-A-F-S. 3 A. Abu Hafs, correct. 4 Q. And until Abu Ubaidah al Banshiri was killed in the ferry 5 accident, Abu Hafs was number three in the al Qaeda 6 leadership, correct? 7 A. Yes. 8 Q. And then he became number two after the death of the 9 gentleman in the ferry accident, correct? 10 A. Yes. 11 Q. And al Qaeda had a ruling council called the shura 12 council, shura committee; is that correct? 13 A. The shura council. 14 Q. And there were other committees that made up the structure 15 of al Qaeda, correct? 16 A. Yes. 17 Q. For example, there was a religious committee that ruled on 18 religious-type issues, correct? 19 A. Yes. 20 Q. And did you become aware as a member of al Qaeda that 21 there was a man known as Abu Hajer al Iraqi? 22 A. Yes, he was present. 23 Q. Do you know that his correct name is Mamdouh Mahmud Salim? 24 A. I heard of his name. 25 Q. When I refer to Mr. Salim, I will be referring to Abu 1531 1 Hajer al Iraqi, okay? 2 A. Okay. 3 Q. Did you later come to learn that Mr. Salim had issued a 4 statement that it was Islamically correct that in attacking 5 enemies of Islam, if civilians were killed in that process, 6 that that would be permissible since if they were good people, 7 they would go to paradise, and if they were bad people, they 8 would go to hell? Did you become aware of that statement? 9 A. I never heard of anything as such. 10 Q. You are aware that there was disagreement, and you 11 testified about disagreement within al Qaeda, as to whether it 12 was Islamically correct to kill civilians or not kill 13 civilians, is that true? 14 A. It's not a matter of disagreement, but killing innocent 15 people is not permissible in Islam. 16 Q. Was there disagreement over that issue within al Qaeda? 17 A. This fatwah came about in 1996 after Bin Laden went to 18 Afghanistan and people in Sudan, where I was, did not agree 19 about this. 20 Q. Did you tell the FBI agents who interviewed you in August 21 of the year 2000, August of last year, that many people were 22 against this fatwah? 23 A. This was the place where I was in Sudan. 24 Q. Are you telling me that many people were against this 25 fatwah? 1532 1 A. Correct. 2 Q. But there were also people who accepted the fatwah, isn't 3 that correct, within al Qaeda? 4 A. If they are convinced and their faith would allow them. 5 Q. I'm sorry, would you repeat that answer? 6 A. If they are convinced and their faith would allow them to 7 be convinced. 8 Q. So the answer is there were people whose faith allowed 9 them to become convinced of that; isn't that correct? 10 A. Possibly. 11 Q. In testifying here on your first day of testimony, you 12 discussed the structure of an al Qaeda operation and described 13 it as having four phases, is that true? 14 A. Correct. 15 Q. The first phase would be surveillance or 16 intelligence-gathering, correct? 17 A. Yes. 18 Q. The second phase would be for those who did the 19 surveillance and intelligence operation to report to the 20 leadership of al Qaeda, correct? 21 A. The second phase is that the leadership would study the 22 information that was presented to them or submitted to them. 23 Q. And then the leadership would decide whether to go ahead 24 with an operation or not, correct? 25 A. Correct. 1533 1 Q. If the leadership decided to go ahead, then a supply and 2 logistical group would bring whatever necessary material was 3 needed to carry out the operation, correct? 4 A. This is a military operation. This is a military thought. 5 Q. And after the supplies were brought to wherever the 6 operation was to take place, then the people who actually were 7 going to carry out the operation would go to the place; is 8 that correct? 9 A. Yes. 10 Q. When you were interviewed by the FBI beginning in the 11 summer of 2000, the year 2000, you initially did not tell them 12 about the people who came to your apartment in Nairobi to take 13 photographs and developed the negatives in your apartment, 14 correct? 15 A. Correct. 16 Q. That was not an mistake, you were nervous or afraid to 17 tell them about that because you were afraid you might be 18 connected to the bombing in Nairobi, correct? 19 A. Correct. 20 21 (Continued on next page) 22 23 24 25 1534 1 (The following testimony is conducted through the 2 interpreter) 3 Q. Did it occur to you, or was one of the reasons you lied to 4 the FBI that the surveillance and the pictures that were 5 developed in your apartment might have been the first phase of 6 the operation that led to the bombing of the embassy in 7 Nairobi? 8 MR. SCHMIDT: Objection, your Honor. 9 THE COURT: Objection sustained to the form of the 10 question. 11 Q. You testified a moment ago that you did not tell the truth 12 about the bombing -- I am sorry -- about the surveillance that 13 took place and the development of photographs in your 14 apartment, correct? 15 A. Correct. 16 Q. You testified that one of the reasons you didn't tell the 17 truth is you were afraid of being connected to the bombing of 18 the embassy in Nairobi, correct? 19 A. Correct. 20 Q. After the fighting in Afghanistan was concluded, there 21 were other areas in the world where Muslims were facing 22 difficulty, is that true? 23 A. Yes. 24 Q. One of those areas was the area of Bosnia Herzegovina, 25 correct? 1535 1 A. Yes. 2 Q. In fact, Muslims were facing in that area what has since 3 been called genocide under the name of ethnic cleansing, is 4 that correct? 5 A. Yes. 6 Q. And even after Afghanistan, hundreds of young Muslim men 7 continued to come to the training camps in Afghanistan, 8 correct? 9 A. Yes. 10 Q. And you participated in the training of some of those men, 11 is that correct? 12 A. Yes. 13 Q. According to your information and according to your 14 testimony, Mr. Salim, Mamdouh Mahmud Salim, also known as Abu 15 Hajer al Iraqi, was a well-respected member or well-respected 16 associate of Mr. Bin Laden's, is that correct? 17 A. Yes. 18 Q. He was somebody who had memorized the entire Koran. Did 19 you know that? 20 A. Correct. 21 Q. You have sometimes referred to Mr. Salim Abu Hajer al 22 Iraqi as Sheik Abu Hajer al Iraqi, is that correct? 23 A. Correct. 24 Q. The word Sheik in Arabic is a term used for someone worthy 25 of great respect, am I correct? 1536 1 A. Yes. 2 Q. Mr. Salim sometimes served, according to your testimony, 3 as the imam at the mosque during Ramadan, is that correct? 4 A. Correct. 5 Q. Even within Al Qaeda there were people paid salaries for 6 carrying out activities within Al Qaeda, correct? 7 A. Correct. 8 Q. You yourself in fact were paid a salary for many, many 9 years by Al Qaeda, is that true? 10 A. Correct. 11 Q. But there was a certain amount of unhappiness within Al 12 Qaeda among its members because people seemed to get 13 preferable treatment, is that correct? 14 A. Correct. 15 Q. The Egyptians, for example, many people in Al Qaeda 16 thought that they received preferable treatment over all other 17 members of Al Qaeda; is that true? 18 A. Not all the Egyptians. 19 Q. But some of the Egyptians. 20 A. Yes. 21 Q. With regard to Mr. Salim, Abu Hajer al Iraqi, there was a 22 time when he lived in a villa, he had a car, an office, he had 23 a very good salary from Al Qaeda; is that true? 24 A. Because he was the director of a company called Wadi al 25 Aqiq. 1537 1 Q. And Mr. Salim had also been one of the very early people 2 to go fight in Afghanistan; is that true? 3 A. Correct. 4 Q. You have pleaded guilty yourself to a conspiracy that 5 included the killing of Americans; is that correct? 6 A. Correct. 7 Q. For your role in your plea, do you face the death penalty? 8 A. No. 9 Q. You have been now admitted into the United States to live 10 here, correct? 11 A. Yes. 12 Q. The United States government paid for that, correct? 13 A. Yes. 14 Q. You have been living here since approximately September of 15 2000, correct? 16 A. Correct. 17 Q. And the government has agreed to assist you in becoming 18 part of what is known as the Witness Protection Program, 19 correct? 20 A. Yes. 21 Q. And the United States has paid to move members of your 22 family here to the United States also to live in this country, 23 correct? 24 A. Correct. 25 Q. How many members of your family has the government moved 1538 1 to this country? 2 A. My wife and three daughters. 3 Q. Since being in the United States, have you spent any time 4 in jail? 5 A. I am under surveillance 24 hours a day. I have an FBI 6 agent around the clock. 7 Q. Have you spent any time in jail? 8 A. No. 9 Q. When you go from place to place, are you placed in 10 handcuffs? 11 A. No. 12 Q. Although your guilty plea exposes you to a theoretical 13 life sentence, it is your hope that you will not go to jail at 14 all, for one single day; is that correct? 15 A. Nothing is guaranteed. I cannot guarantee that I am not 16 going to be incarcerated. 17 Q. Even though nothing is guaranteed, it is your hope that 18 you will not spend a single day in jail; isn't that true? 19 A. Yes. 20 MR. RUHNKE: Thank you. No further questions. 21 THE COURT: Redirect? 22 MR. FITZGERALD: Yes, Judge. 23 (The following testimony in English except where 24 noted.) 25 REDIRECT EXAMINATION 1539 1 BY MR. FITZGERALD: 2 Q. Good morning. 3 A. Good morning. 4 Q. Please feel free to answer questions in English or through 5 the interpreter, however you feel more comfortable. 6 You have been asked questions about what your 7 understandings are with the United States government, what you 8 expect to receive, and let me approach you with what has been 9 marked for identification as 3505-27 and ask you to take a 10 look at it. I will ask you if you recognize what that is? 11 A. (Through the interpreter) It is the agreement that I have 12 signed with the FBI after the interrogation. 13 Q. Are you testifying here today pursuant to that agreement? 14 (Interpreted) 15 A. Yes. 16 MR. FITZGERALD: Your Honor, I would offer that as 17 Government's Exhibit 4. 18 MR. COHN: In its entirety, your Honor? 19 MR. FITZGERALD: Yes. 20 MR. COHN: I object. I don't object to portions of 21 it but I don't think the proper foundation has been laid for 22 the entire document. 23 THE COURT: I will defer on that. We will take that 24 up during the mid-morning recess. 25 MR. FITZGERALD: Thank you, Judge. 1540 1 Q. Yesterday you were asked questions by Mr. Schmidt as to 2 whether or not members of the Egyptian groups Al Jihad and the 3 Islamic Group were afraid of being arrested and how they would 4 be treated if they went to Egypt. Do you recall those 5 questions? 6 A. Yes. 7 Q. The members of those groups, were they doing any violence 8 in or against Egypt? 9 A. Yes. 10 MR. SCHMIDT: Objection. 11 THE COURT: Does he know? 12 Q. Do you know if the members of those Egyptian groups were 13 doing violence in or against Egypt? 14 A. Yes. 15 Q. Were they? 16 MR. SCHMIDT: Objection. 17 THE COURT: How does he know? 18 Q. First of all, how did you know they were afraid of being 19 arrested in Egypt? 20 A. Everybody is talking about many people who are facing 21 death and many people were executed in Egypt. 22 Q. How do you know that they were doing violence in Egypt? 23 A. Many operations that we are talking in the guesthouse or 24 with the Egyptian guys, in the Sudan. 25 Q. So you were having conversations in the Sudan about 1541 1 operations in Egypt? 2 A. Sometimes they are saying what happened in Egypt. 3 Q. Did you understand that the Egyptian groups were carrying 4 out those operations? 5 MR. SCHMIDT: Objection, your Honor, for leading, and 6 the foundation has not been properly raised. 7 THE COURT: Overruled. 8 Q. Did you understand that those Egyptian groups were 9 carrying out those operations? 10 A. Yes. 11 Q. Did you know, yes or no, whether or not the Egyptian 12 groups blamed the United States government for any assistance 13 provided to the Egyptian government? 14 A. Yes. 15 Q. Did they? Did the Egyptian groups blame the American 16 government for support they perceived was given to the 17 Egyptian government? 18 THE INTERPRETER: Can you kindly repeat the question. 19 Q. Yes. Did the Egyptian groups blame the United States 20 government for any support they believed the American 21 government provided to the Egyptian government? (Interpreted) 22 MR. SCHMIDT: Objection, your Honor. Foundation as 23 to what these groups -- who in the group, what in the group. 24 THE COURT: Overruled. The court's rulings with 25 respect to the admissible scope on redirect is consistent with 1542 1 my rulings with respect to the scope on cross. 2 A. (Through the interpreter) the American government handed 3 over these people to the Egyptian government. 4 Q. And my question was, did the Egyptian groups blame or hold 5 responsible the American government for what they thought was 6 American government assistance to the Egyptians? 7 (Interpreted) 8 A. (Through the interpreter) Yes. 9 Q. You were asked questions yesterday about your working in 10 Wadi Al Aqiq and the tannery in the Sudan. Do you recall 11 those questions? 12 A. Yes. 13 Q. How long in total did you work for the company Wadi Al 14 Aqiq? 15 A. Probably a month and a half. 16 Q. How long did you work for the tannery? 17 A. Fifteen days, probably. 18 Q. Was that after you moved from Kenya to the Sudan? 19 A. Yes. 20 Q. Do you recall what year that was? 21 A. Sometimes in '95. 22 Q. You were asked about whether you had seen training in the 23 Sudan. Did you ever visit the Damazine facility in the Sudan? 24 A. No. 25 Q. You were asked questions yesterday and today about the 1543 1 content of statements or lectures given by the person known as 2 Abu Hajer al Iraqi. Can you tell us, in your entire life how 3 many of Abu Hajer's lectures you have personally attended? 4 A. I attended many lectures in the mosque. 5 Q. How many lectures by Abu Hajer in particular? 6 A. It was in Friday prayers, probably 10 times or more. 7 Q. You were asked questions about the Thursday meeting that 8 happened in Al Qaeda. Do you recall those questions? 9 A. Yes. 10 Q. Did you ever see Wadih El Hage at the Thursday meeting? 11 A. No. 12 Q. Approximately how many people would attend these meetings? 13 A. It depends. Sometimes 20, sometimes less, sometimes more. 14 Q. You were asked questions about Ahmed Hassan yesterday and 15 whether or not Ahmed Hassan was a member of Al Qaeda, and I 16 believe you testified that there were two Ahmed Hassans, 17 correct? 18 A. Yes. 19 Q. One was in Al Qaeda? 20 A. Yes. 21 Q. And one was not? 22 A. Yes. 23 Q. He was in the Al Jihad organization? 24 A. Yes. 25 Q. Let me approach you with what has been marked for 1544 1 identification as Government's Exhibit 202A-T. Is that a 2 transcript of a conversation for which you have listened to 3 the tape recording? 4 A. Yes. 5 Q. Is there a voice identified on that transcript as Ahmed 6 Hassan? 7 A. Yes. 8 Q. Do you know which Ahmed Hassan it is, whether it is the 9 person of Al Qaeda, the person in Al Jihad, or a different 10 person, if you know? 11 A. The person in Al Jihad. 12 Q. The Ahmed Hassan who is a member of the Egyptian Islamic 13 Jihad organization is the Ahmed Hassan on that transcript? 14 A. Yes. 15 Q. You were asked questions yesterday by Mr. Schmidt as to 16 when it was that Abu Mohamed el Masry went to Mogadishu. Do 17 you recall those questions? 18 A. Yes. 19 Q. So we are clear, Abu Mohamed el Masry is a person also 20 known as Saleh, is that correct? 21 A. Yes. 22 Q. You indicated that you thought it was before 1994 and then 23 Mr. Schmidt refreshed your recollection with a document. Do 24 you recall that? 25 A. Excuse me again. 1545 1 Q. You indicated that you thought Abu Mohamed el Masry went 2 to Somalia before 1994 yesterday. Do you recall that 3 testimony? 4 A. Yes. 5 Q. Do you recall Mr. Schmidt showing you a document to 6 refresh your recollection as to whether Mohamed el Masry went 7 to Somalia in 1994? 8 A. Yes. 9 Q. Let me show you that same document, 3505-7, page 4. 10 Mr. Kherchtou, I am going to show you that same document, that 11 same page, that same paragraph, 3505-7, page 4, and ask you 12 whether it refreshes your recollection that Abu Mohamed el 13 Masry went to Somalia for the purpose of fighting Americans 14 and also came to Kenya to bring the word from the Sudan that 15 the purpose was to fight against the Americans. 16 MR. SCHMIDT: Objection, objection, your Honor. 17 THE COURT: It is a convoluted question. Break it 18 down. 19 MR. SCHMIDT: Objection that it is also not proper 20 redirect examination, and also form. 21 THE COURT: Overruled. 22 Q. Let me show you 350-7, page 4, ask you to read a certain 23 paragraph, and then I will ask you a question. 24 MR. SCHMIDT: Your Honor, there is no reason to 25 refresh his recollection. 1546 1 THE COURT: I have ruled. 2 Q. Would you read the paragraph with blue ink on it. Don't 3 read it out loud. Read that paragraph to yourself. 4 A. Yes. 5 Q. Does that refresh your recollection as to whether Abu 6 Mohamed el Masry went to Somalia for the purpose of fighting 7 Americans? 8 MR. SCHMIDT: Objection. 9 THE COURT: I have ruled. 10 A. Yes. 11 Q. So whatever time it was that Abu Mohamed el Masry went to 12 Somalia, the American forces were there, correct? 13 A. Yes. 14 MR. SCHMIDT: Objection, your Honor. Objection. 15 THE COURT: Overruled. 16 Q. Is that the same Abu Mohamed el Masry you told us about 17 earlier that was in a building next door to a building that 18 was shot at by American helicopters? 19 A. Yes. 20 Q. Sir, you were asked yesterday whether or not you knew 21 whether certain people were members of Al Qaeda. Do you 22 recall those questions? 23 A. Yes. 24 Q. How many people saw you take or make your pledge of bayat? 25 A. I made bayat myself and the doctor of animals and the guy 1547 1 who was, who I was given the bayat, and I think one or two 2 others, I think. 3 Q. So a total of about five people were in the room? 4 A. Probably less. 5 Q. So some people you know were in Al Qaeda because you 6 actually saw them make the bayat, correct? 7 A. Yes. 8 Q. Some people you simply know are not in Al Qaeda, correct? 9 A. Excuse me again. 10 Q. There are some people you know do not belong to Al Qaeda, 11 right? 12 A. Yes. 13 Q. There are some people you are not sure of? 14 A. Yes. 15 Q. And there are some people you believe are in Al Qaeda but 16 not because you saw them make the bayat. 17 A. Yes. 18 Q. You were asked a dozen questions or more about who you 19 believed was in Al Qaeda. Do you recall those questions? 20 A. Yes. 21 Q. You were asked questions about whether or not Abu Ubaidah 22 and Abu Hafs even if they did not make the bayat were with the 23 Al Qaeda group. Do you recall that question? 24 A. Yes. 25 Q. You were asked whether you had personal knowledge that 1548 1 Wadih El Hage made the bayat. Let me ask you this: Did you 2 have an understanding of whether or not Wadih El Hage was a 3 member of Al Qaeda? 4 A. Yes. 5 Q. What was that understanding? 6 A. That he is from Al Qaeda. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1549 1 MR. FITZGERALD: I have nothing further, Judge. 2 THE COURT: Anything further of this witness? 3 MR. SCHMIDT: Yes, your Honor. May we have a moment, 4 your Honor? 5 THE COURT: Yes. 6 JUROR: Excuse me, your Honor. 7 THE COURT: You want to take a recess? We will take 8 a recess. It is recess time anyway. 9 (Jury excused) 10 THE COURT: We will take a recess. 11 (Witness excused) 12 (Recess) 13 (Jury not present) 14 MR. SCHMIDT: Your Honor, before we bring the jury 15 out I have a request. 16 THE COURT: Mr. Schmidt. 17 MR. SCHMIDT: Your Honor, during questioning by other 18 counsel I have at times made objections. When a question is 19 either rephrased or asked again in a different manner, I have 20 repeated my objections. My understanding is that objection to 21 one question does not satisfy for appeal if I do not object to 22 the subsequent question even though it is similar. 23 Your Honor has chastised me, perhaps unintentionally, 24 in front of the jury in a manner I do not believe the jury 25 should be seeing. I am simply attempting to make a proper 1550 1 record, and I ask your Honor, if your Honor indeed disagrees 2 with me, that you simply overrule my objection, and if your 3 Honor has difficulty with the manner that I make my objection, 4 that you do that outside the presence of the jury. 5 THE COURT: I don't know really what to say about 6 that. I don't believe that I chastise you. I know I did say 7 I have already ruled when it appeared to me that the objection 8 that you were making, that there was no apparent basis for the 9 reassertion of the objection. 10 Your concern is an appellate rule that says that 11 unless the objection is repeated after the question is 12 rephrased that it is not preserved. I am not aware of such a 13 rule. Where the objection was to lack of foundation or the 14 form of the question or something of that sort, then 15 reiteration of the objection to a rephrased question may be 16 appropriate. 17 It will be for others to judge the record, but I 18 certainly don't believe that I have been chastising counsel, 19 and indeed one of the, I think, relatively few bright spots 20 about the trial is that there has been relatively little 21 bickering among counsel or occasion for me to make comments. 22 I may comment about the impropriety of saying before the jury 23 that a point had been made, but other than that -- I note your 24 comments, Mr. Schmidt. 25 MR. COHN: In my own defense, remember this is a 1551 1 capital trial and not a Victorian tape. 2 THE COURT: I don't think that changes the rules as 3 to what is or is not appropriate comment before a jury. 4 MR. RUHNKE: Your Honor, not to jump into this too 5 far, there has been some annoyance expressed in the tone of 6 voice that your Honor used in ruling on objections, 7 particularly Mr. Schmidt. I rise not to protect Mr. Schmidt 8 but because it spills over on other clients. I just make that 9 point for the record, your Honor. 10 THE COURT: I understand that. I do understand and 11 appreciate the role of defense counsel in a case in which 12 cross-examination, and phrasing of objections may constitute a 13 major portion of the defense case. I bear that in mind. If 14 my tone of voice is not my usual amiable, genial tone of 15 voice, why then I apologize. 16 MR. COHN: Your Honor, do you want to take up the 17 document that I objected to part of? 18 THE COURT: Yes. 19 MR. COHN: I don't have it in front of me, but I 20 believe that the document has the usual paragraph or two about 21 truthful testimony as part of the deal. 22 THE COURT: Yes. 23 MR. COHN: As I recall the circuit law, you can only 24 get that part in where there has been a challenge to the 25 credibility of the witness, and I suggest to your Honor that 1552 1 there has not been, and a suggestion that he would lie -- 2 THE COURT: That extensive examination as to the 3 conditions of his confinement -- I understand that Mr. Ruhnke 4 was making a record for another phase of this case, but 5 nevertheless, wasn't that all designed to challenge his 6 credibility? 7 MR. COHN: Not his credibility, actually, the 8 credibility of another witness coming up. I have never said 9 and I will not say on summation that he lied, and I don't 10 believe anybody else is making that argument. 11 THE COURT: If it wasn't relevant to his credibility, 12 what was the relevance of the conditions of confinement to 13 which he was subjected prior to -- 14 MR. COHN: That he was making the statements that he 15 made at all, not to whether or not they are truthful. In 16 fact, he didn't testify that anything that touched my client 17 except in a general conspiracy way. 18 MR. FITZGERALD: Your Honor, Mr. Cohn himself 19 elicited that the person who debriefed him in the jail taught 20 him how to lie. That was how he ended his cross-examination. 21 I think that was directly put in, is this witness trained in 22 how to lie, and the cooperation agreement shows what his 23 incentives are with regard to telling the truth or lying. 24 MR. COHN: And I tell the court and I tell counsel 25 that I will make no argument that he is using that technique. 1553 1 THE COURT: So it was introduced for what purpose? 2 Why did you plant that seed in the jurors' minds, other than 3 to cast aspersions on his credibility? 4 MR. COHN: Your Honor, there will be another witness 5 who I will maintain is a liar and is using a technique that a 6 government witness was taught. 7 THE COURT: Do you want me to strike that testimony 8 and advise the jury that there is no challenge to the 9 witness's credibility? Of course you don't. 10 MR. COHN: I don't want you to strike the testimony, 11 but if you want to say that he is not lying, as far as I am 12 concerned, that is fine with me. 13 THE COURT: I am sure other counsel would object to 14 that. If the sole basis to the introduction of Government's 15 Exhibit 4 is that there has been no suggestion made that the 16 witness's testimony is not entirely credible, the objection is 17 overruled. 18 MR. SCHMIDT: I would just note, your Honor, that 19 again, the issues of a joined trial and the problems related 20 to it has again arisen based on the cross-examination of the 21 death-eligible defendants and the nondeath-eligible 22 defendants. We object to the admission of this document in 23 evidence, and we again move for a severance. 24 THE COURT: Overruled. 25 MR. FITZGERALD: Your Honor, I apologize. 1554 1 Government's Exhibit 4 should be called Government's Exhibit 2 5. 3 THE COURT: The witness described it as an agreement 4 with the FBI. Is it? 5 MR. FITZGERALD: It is the standard cooperation 6 agreement. 7 THE COURT: But it is addressed to the FBI? 8 MR. FITZGERALD: No, it's from the U.S. Attorney's 9 Office to the counsel for Mr. Kherchtou. I think he was 10 treating -- 11 THE COURT: He said it is the agreement with the FBI. 12 MR. FITZGERALD: Right, and then said it is the one 13 he is testifying pursuant to. The document is a standard 14 cooperation agreement. 15 THE COURT: So I will tell the jury what we have 16 previously referred to as Exhibit 4 is Exhibit 5. 17 MR. FITZGERALD: Thank you, your Honor. 18 (Witness resumed) 19 THE COURT: While we are waiting, I have received a 20 copy of a letter relating to the testimony of the ambassador. 21 If there are any objections to the government's in limine 22 motion, then I would like to be apprised of that by 9:45 23 tomorrow morning. 24 MR. BAUGH: None from the defendant Al-'Owhali, no 25 objection. 1555 1 MR. RUHNKE: We have no objection, your Honor. 2 (Jury present) 3 THE COURT: Ladies and gentlemen, you recall that on 4 the government's redirect the government offered in evidence a 5 document which the witness says was his agreement with the FBI 6 after his interrogation and which was then referred to as 7 Exhibit 4. I deferred on whether or not it would be received 8 in evidence. First let me tell you that the correct 9 designation of that exhibit is Exhibit 5, and it is received 10 in evidence. 11 We are now at recross on behalf of the defendant El 12 Hage. Mr. Schmidt. 13 (Government's Exhibit 5 received in evidence) 14 (Examination in English except where noted) 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 1556 1 RECROSS-EXAMINATION 2 BY MR. SCHMIDT: 3 Q. Mr. Kherchtou, I think you answered questions on redirect 4 examination when by Mr. Fitzgerald that Abu Hafs and Al 5 Banshiri was part of Al Qaeda. Do you remember saying 6 something of that nature? 7 MR. FITZGERALD: Objection. 8 THE COURT: My notes don't have all the names, but I 9 will allow the question. 10 Did you testify to that effect? 11 THE WITNESS: He said Abu Hafs Banshir. There is no 12 Abu Hafs Banshir. 13 THE COURT: Would you state that into the microphone, 14 please. 15 Q. Abu Hafs and Al Banshiri. 16 A. Yes, the question, please, again. 17 Q. Did you testify on redirect that Abu Hafs and Al Banshiri 18 were part of Al Qaeda? 19 A. Yes. 20 Q. Because of their early arrival in Afghanistan, they had a 21 special role, is that right? 22 A. Yes. 23 Q. You have indicated that you don't know if they ever took 24 bayat, is that correct? 25 A. Yes. 1557 1 Q. So if they were associated with Al Qaeda, it depended on 2 their individual friendship with Mr. Bin Laden and not a 3 pledge; is that right? 4 A. Well, these two people, they were our leaders. We 5 received orders from these two people. 6 Q. But if they were associated with Al Qaeda and had not 7 taken a bayat to Al Qaeda, then their association was based on 8 their friendship to Usama Bin Laden, and not on any religious 9 obligation; isn't that right? 10 MR. FITZGERALD: Objection to form. 11 THE COURT: No, I will allow it. 12 A. Well, in the military things, for example, Abu Hafs was 13 the head of military committee. Religiously, if he wants to 14 be that, he has to be like one of the emirs. It's not like 15 associate and we will receive orders from him. That's why he 16 has some special stature. That is why everyone in Al Qaeda 17 agrees that Abu Hafs is member of Al Qaeda, head of Al Qaeda. 18 Q. From Al Qaeda doesn't mean having given bayat, is that 19 right? 20 A. I don't know if they gave bayat. 21 Q. You just testified on redirect examination for the first 22 time saying Wadih El Hage was of Al Qaeda. Do you remember 23 that? 24 MR. FITZGERALD: Objection to the form. 25 THE COURT: Strike for the first time, and you may 1558 1 answer the question. 2 Q. Did you testify on redirect examination that Wadih El Hage 3 was of Al Qaeda? 4 A. Yes. 5 Q. Is that the first time that you testified here that Wadih 6 El Hage was of Al Qaeda? 7 A. Yes. 8 Q. Back in 1998, as you testified on both direct examination 9 and cross-examination and redirect examination, you were 10 interviewed by a person while you were in jail in Kenya; is 11 that correct? 12 A. Yes. 13 Q. That was in August of 1998, is that right? 14 A. Yes. 15 Q. That was more than two and a half years ago, is that 16 right? 17 A. Yes. 18 Q. During your conversations with that person, you were asked 19 all about your affiliation with Al Qaeda and Al Qaeda members; 20 is that right? 21 A. Yes. 22 Q. Did you tell that individual that you did not know whether 23 Wadih El Hage was Al Qaeda? 24 A. I don't remember. 25 Q. I am going to ask you to take a look at what has been 1559 1 previously marked 3505-29, page 270, and read to yourself -- 2 actually, starting at 269 where I made a blue line, and 3 reading to the next page where I made another blue line. Read 4 that to yourself, please. 5 A. Excuse me. From here? 6 Q. Yes, from here to here. 7 (Pause) 8 Q. Do you need it translated for you? 9 A. No. 10 (Pause) 11 A. Yes, sir. 12 Q. Having read that, does it refresh your recollection that 13 you told that individual back in August of 1998 that you did 14 not know if Wadih El Hage was Al Qaeda? 15 A. Yes, I told him that I didn't know exactly if he is from 16 Al Qaeda. 17 Q. But you knew that he was one of the first in Afghanistan 18 and was trusted because of that; isn't that correct? 19 A. Yes, he was trusted. 20 Q. You also said that you knew Wadih El Hage well. 21 A. Yes. 22 Q. That he was your friend. 23 A. Yes. 24 Q. That he was a nice person. 25 A. Yes. 1560 1 Q. And you simply did not know, based on all of what you knew 2 about Wadih El Hage, whether he was an Al Qaeda member or 3 someone who simply worked with people from Al Qaeda; isn't 4 that correct? 5 MR. FITZGERALD: Objection only to form. 6 THE COURT: Overruled. 7 MR. SCHMIDT: Would you repeat the question, please. 8 Can we have the court reporter repeat the question, please. 9 (Record read) 10 (Question interpreted) 11 A. (Through interpreter) this person, when he interrogated me 12 I was in jail. I did not tell him the entire truth. All my 13 aim was to have him get me out of my jail cell. 14 Q. Mr. Kherchtou. 15 A. Yes. 16 Q. Are you telling us now that in 1998, that you said to this 17 person that Wadih El Hage -- that you did not know Wadih El 18 Hage, whether -- withdrawn. 19 Are you saying to us that in 1998 when you said to 20 this person that you did not know if Wadih El Hage was Al 21 Qaeda, that you were lying to him? Is that your testimony 22 now? 23 A. (Through interpreter) Yes. 24 Q. Didn't you tell the FBI agents when you were interviewed 25 that you did not know whether Wadih El Hage was Al Qaeda? 1561 1 (Interpreted) 2 A. (Through interpreter) Probably. 3 Q. Are you telling us now that when you told the FBI agents 4 six months ago, five months ago, four months ago, whenever 5 that was, that you did not know that Wadih El Hage was Al 6 Qaeda, that you were lying to them? (Interpreted) 7 A. (Through interpreter) I told them that I am not aware 8 whether he is in the Al Qaeda or not. 9 Q. Was that the truth? (Interpreted) 10 A. (Through interpreter) Yes. 11 Q. Not only did you not know, all the Al Qaeda members that 12 you knew did not know if Wadih El Hage was a member of Al 13 Qaeda; isn't that correct? (Interpreted) 14 A. (Through interpreter) Not all the members of the Al Qaeda. 15 The majority of the members there. 16 Q. Did you explain to the FBI agents that none of the regular 17 Al Qaeda members know if Wadih El Hage is an Al Qaeda member 18 or not? (Interpreted) 19 A. (Through interpreter) Those who are like me do not know 20 the entire truth of what's going on. 21 Q. Would it be fair to say, right now as you sit here, you do 22 not know whether Wadih El Hage was ever a member of Al Qaeda? 23 (Interpreted) 24 A. (Through interpreter) That is true, but when I have 25 indicated or mentioned that he is a member of the Al Qaeda, it 1562 1 was in relation or in reference to the way that we were 2 relating to him, and it was open in how he handled matters. 3 MR. SCHMIDT: Your Honor, I would -- 4 THE COURT: He is still answering the question. 5 THE INTERPRETER: Not yet. 6 MR. SCHMIDT: He answered the question with the first 7 word. 8 THE COURT: You may translate the rest of his answer. 9 THE INTERPRETER: He did not finish the sentence yet, 10 your Honor. 11 THE COURT: Finish. 12 A. (Through interpreter) Persons who are not members in the 13 Al Qaeda, we cannot talk to them openly as the way we address 14 members of the Al Qaeda and as the way we addressed him. 15 Q. Except for Mr. El Hage was considered an extraordinary 16 trustworthy person because he was one of the first in 17 Afghanistan; isn't that right? (Interpreted) 18 A. (Through interpreter) Correct. 19 Q. There have been people that you have told, both the United 20 States government last year and that man in Nairobi in 1998, 21 that you said were Al Qaeda, even though you never saw them or 22 heard them take bayat; isn't that right? 23 MR. FITZGERALD: Objection to form, your Honor. 24 THE COURT: Overruled. 25 THE INTERPRETER: Kindly repeat the question again. 1563 1 THE COURT: Restate your question. 2 Q. There are times in this courtroom, in answering my 3 question or answering the government's question, that was this 4 person Al Qaeda, you said yes. Do you remember doing that? 5 A. Yes. 6 Q. And these people that you said here in court were Al 7 Qaeda, you told the United States government back in August of 8 last year that they were Al Qaeda, right? 9 MR. FITZGERALD: Objection to form. 10 THE COURT: Yes. You threw in lots of things in your 11 restating the question. Restate your question, and try to not 12 put everything in a single question. 13 Q. You testified here of people that you knew were Al Qaeda, 14 is that correct? 15 A. Yes. 16 Q. People that you knew were Al Qaeda without hesitating, is 17 that correct? 18 A. Yes. 19 Q. You also told the government, the United States government 20 back in August of 2000, of people that you said were Al Qaeda. 21 A. Yes. 22 Q. And you did that without hesitation, is that correct? 23 A. Yes. 24 Q. And then back in 1998 to this man in Nairobi, you told him 25 people that you said were Al Qaeda; is that right? 1564 1 A. Yes. 2 Q. And you didn't hesitate to say those particular people 3 were Al Qaeda; is that correct? 4 A. Yes. 5 Q. And for almost all of those people, you did not see or 6 hear them take bayat; is that correct? 7 A. Yes, some of them, yes. 8 Q. With Mr. El Hage back in 1998, you told that person that 9 you did not know that he was Al Qaeda; is that correct? 10 A. Yes. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1565 1 Q. In August 2000 you told the United States Government that 2 not only did you not know whether Mr. El Hage was al Qaeda, 3 that none of the regular members of al Qaeda knew whether he 4 was al Qaeda; isn't that correct? 5 A. Yes. 6 Q. Now, you have testified on redirect examination about 7 members of al Jihad and the Islamic group being afraid of 8 being arrested in Egypt? 9 A. Yes. 10 Q. And you also testified on redirect examination that 11 Egyptian groups had carried out attacks against Egypt; is that 12 right? 13 A. Yes. 14 Q. Now, were you aware that the Egyptian government made it a 15 capital offense to have military training in Afghanistan? 16 A. I heard about that. 17 Q. So even non-Egyptian Jihad -- withdrawn. So all Egyptians 18 who trained in Afghanistan, be they Egyptian Jihad, Islamic 19 group, al Qaeda, member of no group, all feared going back to 20 Egypt, facing imprisonment or execution, isn't that right? 21 MR. FITZGERALD: Objection, your Honor. 22 THE COURT: Establish the basis for his knowledge. 23 Lay a foundation for the question. 24 BY MR. SCHMIDT: 25 Q. You had conversations with members of Egyptian Jihad about 1566 1 their fear about going back to Egypt, right? 2 A. Yes. 3 Q. You had conversations with members of the Islamic group 4 about going back to Egypt; is that correct? 5 A. Yes. 6 Q. You had conversations with al Qaeda members who were 7 Egyptian and their fear about going back to Egypt; is that 8 right? 9 A. Yes. 10 Q. And you had conversations with unaffiliated Egyptians who 11 were in Afghanistan who were afraid to go back to Egypt; is 12 that right? 13 A. Yes. 14 Q. And they were all afraid that the Egyptian government 15 would at least put them in jail and very possibly torture and 16 execute them, isn't that right? 17 A. Yes. 18 Q. As you testified on redirect examination some of these 19 Egyptian groups did attack against Egypt and in Egypt; is that 20 right? 21 A. Yes. 22 Q. And the manner that was -- withdrawn. And the membership 23 of al Qaeda disagreed with the manner of some of these attacks 24 by these Egyptian Jihad groups, isn't that right? 25 (Witness consults with interpreter) 1567 1 A. Can you repeat, please? 2 MR. SCHMIDT: Could you please read that question for 3 the interpreter? 4 (Record read) 5 (Witness consults with interpreter) 6 A. (Through the interpreter) This was the public opinion of 7 the al Qaeda. 8 Q. That was also your opinion, isn't that right? 9 (Witness consults with interpreter) 10 A. (Through the interpreter) My opinion is not that of the 11 members of the al Qaeda. 12 MR. SCHMIDT: Members of? 13 THE INTERPRETER: Of the al Qaeda. 14 Q. Now, you testified on redirect that you heard Abu Hajer or 15 Mr. Salim at least more than ten times speaking; is that 16 correct? 17 A. Yes. 18 Q. And you previously testified that you never heard Abu, I 19 think on cross-examination by one of the other attorneys, that 20 you never heard Abu Hajer talk about -- 21 MR. FITZGERALD: Objection to scope, your Honor. 22 THE COURT: I can't tell until I hear the rest of the 23 question. 24 Q. You testified on cross-examination by Mr. Ruhnke, the 25 other gray-haired gentleman over there, that you never heard 1568 1 Abu Hajer or Salim issue a statement about it being okay to 2 kill civilians because if they're good, they will go to 3 heaven, if they're bad, they will go to hell. Remember 4 testifying to that? 5 A. Yes. 6 MR. FITZGERALD: Objection to scope, Judge. Recross. 7 THE COURT: Overruled. 8 BY MR. SCHMIDT: 9 Q. In fact, not only did you never hear Abu Hajer say that, 10 you never heard any discussion with al Qaeda about something 11 like that; isn't that correct? 12 A. I don't remember. 13 Q. You don't remember ever having a discussion like that or 14 hearing a discussion; isn't that correct? 15 A. About what is going on in Egypt? 16 Q. No. Mr. Ruhnke asked you if you have heard Mr. Salim, Abu 17 Hajer, make a statement in effect that it's okay if civilians 18 get killed because if they're good, they go to heaven, if 19 they're bad, they go to hell; you remember that conversation? 20 A. Yes. 21 Q. And you remember you told him, you said, I never heard Abu 22 Hajer say anything like that; isn't that correct? 23 A. Yes. 24 Q. In fact, you never heard any member of al Qaeda having 25 discussion like that; isn't that correct? 1569 1 A. A discussion about killing innocent people? 2 Q. They will go to heaven and to hell, am I correct? 3 A. Yes. 4 Q. You also testified on cross-examination -- excuse me, on 5 redirect examination by the government that Mohamed el Masry 6 deftly went to Somalia to fight against the Americans; do you 7 remember saying that? 8 A. Yes. 9 Q. Now, what you heard was that the Somalis asked for help to 10 get the United Nations and the United States out of Somalia, 11 isn't that right? 12 A. I don't know if they asked for help and to who they asked 13 for help from who, but they were training there and they were 14 fighting United Nations. 15 Q. Are you aware of the date that the Americans left Somalia? 16 A. No. 17 Q. You were in Kenya already by the time that you heard this 18 information; is that correct? 19 A. Yes. 20 Q. And you had been in Kenya for many months when you heard 21 that information; isn't that correct? 22 A. Yes. 23 Q. And you also heard that the U.N. and the United Nations 24 and the United States killed many Somalis by the time that -- 25 MR. FITZGERALD: Objection to scope, 401 and 403. 1570 1 Q. -- Mohamed el Masry -- 2 THE COURT: Objection sustained. 3 MR. SCHMIDT: I have no further questions. 4 THE COURT: Anything further? 5 MR. WILFORD: No questions on behalf of Mr. Odeh, 6 your Honor. 7 MR. COHN: Mr. al-'Owhali has none. 8 MR. RUHNKE: No questions, your Honor. 9 THE COURT: Very well. 10 MR. FITZGERALD: None from the government. 11 THE COURT: Very well. Thank you. You may step 12 down. 13 (Witness excused) 14 THE COURT: And the government may proceed to the 15 next order of business. 16 MR. KARAS: Your Honor, at this time we would ask 17 that the stipulation marked as Government Exhibit 35 be read. 18 THE COURT: Very well. 19 "It is hereby stipulated and agreed by and between 20 the United States of America and counsel for all the 21 defendants, and the defendants with the consent of their 22 counsel, as follows: 23 "1. Government Exhibit 93 is an authentic copy of an 24 article that appeared in a newspaper known as Al Quds 25 al-Arabi, which is published daily in London, England, on 1571 1 February 23, 1998, and that Government Exhibit 93-T is a fair 2 and accurate translation of the article that is marked as 3 Government Exhibit 93." 4 It is so stipulated. 5 MR. KARAS: Your Honor, at this time we would offer 6 Government Exhibits 35, 93 and 93-T. 7 THE COURT: Received. 8 (Government Exhibits 35, 93 and 93-T received in 9 evidence) 10 MR. KARAS: What we would propose to do, your Honor, 11 is to display 93 and then read 93-T. 12 THE COURT: Yes, you may. 13 A JUROR: We're having a problem. 14 THE COURT: You're having a problem with that viewer? 15 A JUROR: We just got to pick it up. 16 THE COURT: Oh. 17 A JUROR: Fixed. 18 THE COURT: There we go. 19 (Exhibit 93-T read) 20 MR. KARAS: Your Honor, the next order of business 21 will involve the playing of a tape which will last 22 approximately 50 minutes. 23 THE COURT: 50 minutes? 24 MR. KARAS: Five, zero, yes. 25 THE COURT: You want to break it up? I don't know, 1572 1 it doesn't have to be all at once, does it? 2 MR. KARAS: No, we can break it up. 3 THE COURT: Why don't you start and we'll break. 4 MR. KARAS: Your Honor, we have a stipulation that's 5 marked as Government Exhibit 34. 6 THE COURT: Very well. 7 MR. KARAS: "It is hereby stipulated and agreed by 8 and between the United States of America and the defendants 9 with the consent of their attorneys as follows: 10 "1. Government Exhibit 81 is an authentic copy of a 11 videotape of an interview conducted by representatives from 12 ABC news with Usama Bin Laden in Afghanistan on May 28, 1998. 13 "Portions of the interview aired on ABC on June 10, 14 1998, and a transcript of the entire interview later appeared 15 on the ABC news website. Government Exhibit 81-T is a fair 16 and accurate translation of the interview that is depicted in 17 Government Exhibit 81." 18 Signed by counsel. 19 Your Honor, at this time we would offer Government 20 Exhibits 34, 81 and 81-T. 21 THE COURT: Received. 22 (Government Exhibits 34, 81 and 81-T received in 23 evidence) 24 MR. KARAS: And we would propose to hand out 81-T 25 while we play the videotape. 1573 1 THE COURT: Yes, you may. 2 (Government Exhibit 81 played) 3 THE COURT: Perhaps this is a good place to break and 4 we'll pick that up after lunch, and we're adjourned until 5 2:00. 6 (Luncheon recess) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1574 1 AFTERNOON SESSION 2 2:10 p.m. 3 (Jury not present) 4 MR. SCHMIDT: Your Honor, we have some issues with 5 the redactions that the government has made to the statement 6 of Mr. Odeh. My understanding today is that they plan to 7 offer the statement this afternoon, and we received a copy 8 during lunch of the redacted statement. 9 THE COURT: We will take it up. We have about what, 10 another half hour of this video? 11 MR. KARAS: About 20 minutes of the video. 12 THE COURT: And then there are some other matters? 13 MR. FITZGERALD: Yes. If the stipulation is signed 14 by all counsel on the wiretap, we will have a chunk of 15 transcripts to read and a brief witness before we get to Agent 16 Anticev. 17 THE COURT: We will take it up then before that. 18 (Jury present) 19 THE COURT: I believe we were on page 6, is that 20 correct? 21 MR. KARAS: Yes, Judge. 22 (Videotape resumed) 23 THE COURT: Mr. Fitzgerald. 24 MR. FITZGERALD: Yes, your Honor. At this time I 25 would offer in a stipulation previously marked as Government's 1575 1 Exhibit 36 for identification. 2 THE COURT: Yes. 3 MR. FITZGERALD: I would ask the court to read the 4 first three paragraphs, and -- or if you prefer I could read 5 it -- to omit dates and times specified, to save time. 6 THE COURT: Go ahead. 7 MR. FITZGERALD: It is hereby stipulated and agreed 8 by and between the United States of America and the defendants 9 by and with the consent of their undersigned attorneys as 10 follows: 11 1. That for the time period including on or about 12 July 1996 through September 1997, the Kenyan telephone number 13 254820067 was assigned to a telephone which was located at 14 1523 Fedha Estates, a building in Nairobi, Kenya, which was 15 used as a residence by Wadih El Hage and his family. During 16 that time period the telephone was wiretapped. Calls to and 17 from the telephone number were being recorded on a tape 18 recording machine in a secure location in the Nairobi, Kenya, 19 area. The parties agree that the tapes generated by the 20 wiretap are fair and accurate recordings of the conversations 21 taking place over those telephone lines. Tapes generated by 22 the wiretap included the following government's exhibits, 23 which were recorded on or about the date and time indicated 24 and outgoing telephone calls were placed to the telephone 25 number indicated. 1576 1 It then recites approximately 25 different exhibits 2 with times and dates, which I will not read into the record at 3 this time. 4 THE COURT: Very well. 5 MR. FITZGERALD: Paragraph 2 states that for the time 6 period including in or about July 1996 through September of 7 1997, the Kenyan telephone number 25471202219 was assigned to 8 a telephone in Nairobi which was subscribed to by Ahmed Sheik 9 Aden. During that time period, the telephone was wiretapped. 10 Calls to and from the telephone number were being recorded on 11 a tape recording machine in a secure location in the Nairobi 12 area. The tapes generated by the wiretap included the 13 following government's exhibits, which were record on or about 14 the dates indicated and outgoing calls placed to the telephone 15 number indicated. I omit reading now the exhibit dates and 16 times. 17 THE COURT: Very well. 18 MR. FITZGERALD: Paragraph 3 states that for the time 19 period including in or about July 1996 through September 1997, 20 Kenyan telephone number 254820067 was assigned to a telephone 21 in Nairobi which was subscribed to by Wadih El Hage. During 22 part of that time period, the telephone was wiretapped to 23 intercept facsimile transmissions to and from the telephone 24 number, which were recorded on a machine in a secure location 25 in the Nairobi area. The fax transmissions recorded include 1577 1 the following government's exhibits, which were received on or 2 about the date and time indicated and outgoing faxes were sent 3 to the telephone number indicated. I will omit reading 4 particular numbers, and there are other paragraphs that need 5 to be read at another time. 6 THE COURT: Very well. 7 MR. FITZGERALD: At this time, your Honor, I would 8 offer in evidence the following tapes and tape transcripts: 9 201A and 201A-T; 202A and 202A-T; 203A and 203A-T; 204A and 10 204A-T; 204B and 204B-T; 205A and 2505A-T; 207A and 207A-T; 11 207B and 207B-T; 207C and 207C-T; 208A and 208A-T; 209A and 12 209A-T; 209B, 209B-T and 209C-T; 210A and 210A-T; 211B and 13 211B-T; 211C and 211C-T; 211D and 211D-T; 212A and 212A-T; 14 213A and 213A-T; 214A and 214A-T; 215A, 215A-T; 216A and 15 216A-T; 217A and 217A-T; 217B and 217B-T; 218A and 218A-T; 16 219A and 219A-T; 220A and 220A-T; 220B and 220B-T; 221A and 17 221A-T -- just two more -- 222A and 222A-T; and 223A and 18 223A-T. And the stip, Government's Exhibit 36. 19 THE COURT: All this is offered in evidence? 20 MR. FITZGERALD: Yes, your Honor. 21 THE COURT: Exhibit 36 and 201A to 223A-T as just 22 read are received in evidence. 23 (Government's Exhibits 36; 201A and 201A-T; 202A and 24 202A-T; 203A and 203A-T; 204A and 204A-T; 204B and 204B-T; 25 205A and 2505A-T; 207A and 207A-T; 207B and 207B-T; 207C and 1578 1 207C-T; 208A and 208A-T; 209A and 209A-T; 209B, 209B-T and 2 209C-T; 210A and 210A-T; 211B and 211B-T; 211C and 211C-T; 3 211D and 211D-T; 212A and 212A-T; 213A and 213A-T; 214A and 4 214A-T; 215A, 215A-T; 216A and 216A-T; 217A and 217A-T; 217B 5 and 217B-T; 218A and 218A-T; 219A and 219A-T; 220A and 220A-T; 6 220B and 220B-T; 221A and 221A-T; 222A and 222A-T; and 223A 7 and 223A-T received in evidence) 8 MR. FITZGERALD: At this time, your Honor, we will be 9 reading a subset of those exhibits and we have a book to hand 10 to the jury. Where the calls are in English they will be on a 11 loudspeaker but the translations will be read aloud. 12 THE COURT: Ladies and gentlemen, where the 13 transcripts are in English, it is what you hear that is in 14 evidence and the transcripts are only an aid for you. If in 15 your opinion there is a difference between what you hear in 16 English and what appears on the transcript, it is what you 17 hear that controls. 18 MR. FITZGERALD: I just need to distribute the 19 binders. 20 THE COURT: Yes. 21 MR. FITZGERALD: Your Honor, Mr. Francisco and Mr. 22 Butler will read the parts until Miss Sader arrives. On the 23 transcript I will indicate from the stipulation when we read 24 the date and time of the call. 25 The first one we shall read is transcript 201A-T, 1579 1 which is a call from October 3, 1996. 2 (Government's Exhibit 201A-T read to the jury) 3 MR. FITZGERALD: The next conversation we will read 4 is 202A, recorded on October 28, 1996. 5 (Government's Exhibit 202A read to the jury) 6 MR. FITZGERALD: Your Honor, at this time we would 7 play Government's Exhibit 204A and 204B, which are telephone 8 calls recorded on November 6, 1996, at 1636 and 1902, and they 9 are in English but there is a transcript to aid in reviewing 10 the tape. 11 (Tapes 204A and 204B played) 12 THE COURT: DHL is what? 13 MR. FITZGERALD: DHL, the company. 14 THE COURT: After, explain it. 15 (Playing continued) 16 MR. FITZGERALD: DHL is a company. 17 The next one is a short call, 204B, also November 6, 18 1996, in 1992, in English, and DHL will refer to the business, 19 not a person. 20 THE COURT: DHL, the delivery company? 21 MR. FITZGERALD: Exactly, Judge. 22 (Government's Exhibit 204B played) 23 (Continued on next page) 24 25 MR. FITZGERALD: The next call we will read is 1580 1 205A-T, which occurred six days later, on November 12th, 1996 2 at 15:14. It's in Arabic so we will read the translation. 3 (Government Exhibit 205A-T read to the jury) 4 MR. FITZGERALD: And the next one and last one in 5 this series we'll read is Government Exhibit 207-C, which was 6 recorded on December 17th, 1996, at 8:35. It is in Arabic, so 7 we will read the transcript. 8 (Government Exhibit 207-C read to the jury) 9 MR. FITZGERALD: Your Honor, at this time the 10 government would call Kibarua Mjitta. 11 THE COURT: We'll take a recess before that time. 12 We'll take our mid afternoon recess. 13 (Jury not present) 14 THE COURT: Do the defendants want to take this as a 15 prayer recess? 16 MR. HERMAN: I think it's a little early for a prayer 17 recess. 18 THE COURT: A little too early. 19 MR. SCHMIDT: You want to deal with that other issue? 20 THE COURT: All right. What is the other issue? 21 MR. DRATEL: We have two issues with respect to 22 Mr. Odeh's statement of the government's redactions. One is a 23 Bruton issue, which I'll address first, which is, I'll read 24 the -- if I have the redacted version here. I'll find the 25 unredacted. It has to do with the identification of Mr. El 1581 1 Hage. 2 THE COURT: Yes. 3 MR. DRATEL: They take out the names, but in fact 4 everything around it clearly indicates who it is based on not 5 only other evidence, but also the fact that Mr. El Hage is 6 asked specifically about this in the Grand Jury. 7 THE COURT: I have to see something in front of me. 8 This is getting a little too abstract. 9 What page are we on? 10 MR. DRATEL: Page 23, your Honor, of 3507-1, I think 11 it is. The redacted one is not marked. 3507-1. 12 MR. FITZGERALD: We'll call it Government Exhibit 6. 13 In 3505 the numbers are different. We gave you the unredacted 14 one for 3500 purposes, so we'll call this Government Exhibit 15 6. 16 MR. DRATEL: Right. 17 THE COURT: What pages am I looking at? 18 MR. DRATEL: Page 23, your Honor. 19 THE COURT: Page 23, which begins with "the other" 20 blank? 21 MR. DRATEL: Yes, it's the -- yes. Go down to the 22 third full paragraph, the one that begins "Odeh stated that 23 Wadih El Hage." 24 THE COURT: I have the redacted copy, which says 25 "Odeh stated" blank. 1582 1 MR. DRATEL: Right. "Odeh stated Wadih El Hage gave 2 him an identification card for NGO Africa Help," and it's our 3 position that that could be redacted easily so as not to make 4 it obvious that it's Mr. El Hage, not to identify Mr. El Hage. 5 You could just simply say "Odeh stated that he was 6 given an identification card for an NGO" and that would 7 resolve the issue. 8 MR. FITZGERALD: Your Honor, that would be redacting 9 out which NGO it is. We intend to elicit -- 10 THE COURT: How about, "Odeh stated he was given an 11 identification card for NGO Africa Help"? 12 MR. DRATEL: Africa Help is Mr. El Hage's NGO. 13 THE COURT: Yes. 14 MR. DRATEL: In fact, he's asked that in the Grand 15 Jury based upon this very statement. Mr. El Hage is asked 16 that question in the Grand Jury, a month later, based on this 17 very statement by Mr. Odeh about the I.D. card. 18 MR. FITZGERALD: His perjury shouldn't take out 19 relevant evidence. Are we going to redact al Qaeda? It's the 20 NGO Help Africa People that did something wrong. The witness 21 will say he received an identity card the minute he received 22 an identity card to Help Africa People. The fact that he 23 received an NGO shouldn't give him license to take out that 24 proof. 25 THE COURT: There isn't anything inherent in Africa 1583 1 Help or an NGO that indicates this has to be El Hage. 2 MR. DRATEL: But, your Honor, if you couple this 3 statement -- when the government took his statement August of 4 '89, a month later, Mr. El Hage in the Grand Jury, they asked 5 him specifically about this identity card. And when you put 6 the two together, it is going to be inescapable for the jury 7 to know it's Mrs. El Hage. And we can't cross examine that 8 information and that's what Bruton is all about. 9 THE COURT: So you want it to read, "Odeh stated that 10 he was given identification card for an NGO and Odeh used this 11 card," right? 12 MR. DRATEL: Yes. 13 THE COURT: That's what you want? 14 MR. DRATEL: Yes. 15 MR. FITZGERALD: First of all, it is not disputed 16 that Harun has been involved in false documents. The witness, 17 Kherchtou, indicated that he saw El Hage and Harun had 18 identification documents in the computer. 19 If we take out "the Help Africa People gave out an 20 identity card," Mr. Schmidt or Mr. Dratel will be arguing to 21 the jury that that was nothing but the pure, clean NGO relief 22 work. 23 Odeh admitted he got an identification card from that 24 document. It does not indicate that it has to be Wadih El 25 Hage versus Haroun, and I don't think that's what Bruton calls 1584 1 for. 2 THE COURT: I agree. And the fact that the 3 identification card is for Africa Help doesn't mean that in 4 fact it was an authentic identification card or that somebody 5 else didn't make up an identification card for Africa Help. 6 I'm familiar with the Supreme Court and other cases 7 that say there is a Bruton problem even though the name is 8 deleted when the context makes it clear that it could only be 9 one person, but this context doesn't make it clear that it 10 could only be El Hage who furnishes the identification card. 11 MR. DRATEL: Your Honor, the government, from what 12 Mr. Fitzgerald just said, they're planning to use this as 13 affirmative evidence against Mr. El Hage, which we cannot meet 14 by cross-examination. 15 The other thing is that with respect to evidence, the 16 government has other evidence about I.D. cards. Coming from 17 the computer they have what's already in evidence are I.D. 18 cards that were printed from the computer. They also have the 19 testimony, I believe, of Mr. Kherchtou that he saw I.D. cards 20 being used. 21 MR. FITZGERALD: Unless I hear Mr. Dratel saying he 22 will stipulate Mr. El Hage was involved in false 23 identification documents, I don't think the fact that there 24 may be other evidence in the record takes this out. In fact, 25 in the Grand Jury Mr. El Hage denied he gave a card. He's not 1585 1 charged with perjury for that answer, so he will -- 2 THE COURT: He is or is not? 3 MR. FITZGERALD: He is not charged with perjury for 4 that answer. 5 MR. DRATEL: But, your Honor, what they want to do is 6 argue against Mr. El Hage for Mr. Odeh's statement, which is 7 exactly what Bruton's all about. 8 MR. FITZGERALD: We're not going to take that 9 statement and argue Mr. El Hage gave that card. We do intend 10 to argue that Help Africa People was involved in providing 11 identity cards, just like we intend to argue that the al Qaeda 12 identity was corrupt. 13 MR. DRATEL: Your Honor, the point is it's not 14 produced -- 15 THE COURT: I don't see this as a Bruton problem. 16 Bruton applies where the context makes clear that the only 17 person who could have been the reference is the defendant. 18 But anybody could have given an identification card for Africa 19 Help, it need not have been only El Hage. 20 I don't know whether any other people were involved 21 in Africa Help or if it was a one-man operation, and the jury 22 won't know that either, so that it isn't a compelled 23 inference. 24 MR. DRATEL: Your Honor, they could use it against 25 Mr. El Hage, not against Mr. Odeh. So what we have is a 1586 1 codefendant statement coming in against another defendant and 2 not against the defendant who made it. 3 THE COURT: Well, what use is the government going to 4 make of it? 5 MR. FITZGERALD: It goes to the enterprise which says 6 that, as charged in the indictment, al Qaeda used 7 non-government organizations to carry out its work. It's 8 going to the overall existence of the conspiracy, not to El 9 Hage's participation in it. 10 MR. DRATEL: If that's the case, your Honor, then the 11 name of the NGO is not important enough to overcome the 12 Bruton, the problem of introducing Mr. Odeh's statement 13 against Mr. El Hage. 14 MR. FITZGERALD: No, the -- 15 THE COURT: No, no, I've heard enough. I've heard 16 enough argument. Well, if we leave "Africa Help," it doesn't 17 make any difference if we put it in the passive or the active. 18 MR. DRATEL: I think it is better in the passive as 19 well, your Honor, if we're going to leave out -- 20 THE COURT: "Odeh stated that he was given an 21 identification" -- 22 MR. DRATEL: -- card for the NGO Africa Help," if 23 "Africa Help" is going to stay in. 24 THE COURT: All right. 25 MR. FITZGERALD: That's fine, Judge. 1587 1 THE COURT: Very well. Is that it? 2 MR. DRATEL: That's it for the Bruton issue. There 3 is another issue, which was a 403 issue, and it also has to do 4 with the certain things that were redacted -- not redacted, 5 but were not addressed in the cross-examination of other 6 witnesses, which is the -- I'll find the page for your Honor. 7 Page 25. 8 THE COURT: Page 25. 9 MR. DRATEL: And at the end of the second full 10 paragraph, the last statement, which is, "Odeh stated that the 11 operation conducted against Khobar was 100 times better than 12 Nairobi." 13 THE COURT: Yes. 14 MR. DRATEL: And we've taken Khobar out of the case 15 and we think that this is just simply too prejudicial, too 16 confusing, misleading for the jury. It doesn't affect the 17 nature of the statement at all. 18 THE COURT: Has Khobar been taken out? 19 MR. FITZGERALD: Yes, Judge. We're not contending 20 that Odeh had participated in Khobar. What is distinguishing 21 here is the fact that in Khobar they successfully got the bomb 22 near the building. They killed their targets, which were 23 Americans. In Nairobi, what he says during this time is that 24 the bomb killed the civilians surrounding it. His analogy 25 that Khobar was much better shows that he thinks that a good 1588 1 operation was one which would blow up the embassy and leaving 2 the buildings nearby intact, and that goes to precisely what 3 is charged in the indictment -- killing Americans. 4 MR. COHN: Your Honor, the record should be clear, we 5 join in this application. 6 THE COURT: It's denied. 7 MR. DRATEL: Your Honor, may I just -- can we 8 stipulate that, just what Mr. Fitzgerald said: None of the 9 defendants are accused of participating in the Khobar bombing 10 and that al Qaeda is not responsible for the Khobar bombing. 11 MR. FITZGERALD: I'll stipulate that none of the 12 defendants are charged with participating in the bombing. I'm 13 not giving al Qaeda -- 14 MR. DRATEL: Charged with -- no, your Honor, that 15 raises the issue there is another case, they're charged 16 somewhere else. They didn't participate. They have no 17 evidence that any of the defendants participated in that 18 bombing. Or even al Qaeda. They know it's not al Qaeda. 19 MR. FITZGERALD: I'm not standing up here and telling 20 your Honor al Qaeda had nothing to do with a terrorist act in 21 Saudi Arabia. I would say no one is charged with it. 22 THE COURT: I don't think the government should be 23 compelled to stipulate to something that it doesn't believe is 24 truthful. It has offered to stipulate to what is relevant to 25 this case, and that is that the defendants in this case are 1589 1 not charged with any involvement with respect to Khobar. 2 MR. DRATEL: I think to say -- they didn't 3 participate in it. Your Honor, just not charged with it is 4 vague. It's always like being told that you're not supposed 5 to think about something outside the box and then they think 6 what's outside the box. 7 It also raises the question for us as, what can we do 8 to meet this? Do we now want discovery on Khobar? Do we have 9 to put evidence on about Khobar that al Qaeda didn't know? 10 THE COURT: What is the language you want in the 11 stipulation? 12 MR. DRATEL: That the defendants, that there is no 13 evidence -- 14 THE COURT: The government does not claim in this 15 case that there is any participation by the defendants with 16 respect to Khobar? 17 MR. DRATEL: No, "in this case" raises an issue of 18 another case. That's what I think when I hear "in this case." 19 The government stipulates that the defendants did not 20 participate -- these defendants did not participate in Khobar 21 and they do not have evidence that al Qaeda did. 22 MR. COHN: Your Honor, I don't know about Mr. Dratel, 23 but I'm willing to say that we'll do that without prejudice to 24 any other case they want to bring, this case now. If they are 25 concerned we're going to bind them in some later case, I'm 1590 1 willing to get rid of that on the spot, but I don't know 2 whether Mr. Dratel is or not. But the fact is that I think 3 he's eminently correct that by saying, not now, maybe later, 4 the jury speculates what to think. 5 MR. FITZGERALD: I think if we tell the jury that no 6 defendants are charged with participating, that that is 7 sufficient and not giving people clean bills of health as to 8 things I don't know what they did. I think every time we do 9 this -- 10 THE COURT: No defendants are charged, not in this 11 case. It is stipulated that. 12 MR. DRATEL: "In this case" I think is -- 13 THE COURT: Yes. 14 MR. DRATEL: I don't want "in this case." 15 THE COURT: No, I'm saying, "It is stipulated no 16 defendants are charged with participating" -- 17 MR. FITZGERALD: "In the Khobar bombing." 18 THE COURT: -- "in the Khobar bombing." 19 MR. DRATEL: Your Honor, also I think we should say 20 the government does not allege that al Qaeda was responsible 21 for the Khobar bombing, which I think is a correct statement. 22 THE COURT: If al Qaeda was responsible -- do you 23 want me to tell now the jury what the law of conspiracy is? 24 MR. DRATEL: It's not charged in the indictment, your 25 Honor. It's not been charged at all. 1591 1 THE COURT: I think, "It is stipulated that no 2 defendants are charged with participating in the Khobar 3 bombing" really, I think -- 4 MR. COHN: Or in conspiring to do same, how about 5 that, your Honor? That leaves al Qaeda out of it and gets us 6 out of the conspiracy. 7 THE COURT: "Or in conspiring with respect thereto." 8 MR. COHN: That is great. 9 MR. DRATEL: Your Honor, I think you can say "the 10 defendants are not alleged to have been involved." 11 THE COURT: You prefer that? 12 MR. DRATEL: That the defendants are not alleged to 13 be involved. 14 THE COURT: Instead of "are charged with"? Now, this 15 is getting to be like a committee drafting a horse. 16 "It is stipulated that no defendants are charged with 17 participating in the Khobar bombing or in conspiring with 18 respect thereto." Okay? 19 Now is it time for the -- can we now have a prayer 20 recess. 21 MR. COHN: Yes. 22 (Recess) 23 MR. DRATEL: Just to complete what we did before 24 recess, it was pointed out to me that perhaps my silence might 25 be construed as assent. Obviously our position would be that 1592 1 the Court's intended instruction is insufficient; that we 2 would prefer the language that we had proposed -- simply that 3 the government does not allege that al Qaeda or any of the 4 defendants here were involved in or participated in the Khobar 5 bombings in Saudi Arabia. 6 THE COURT: Okay. And your objection is noted, but 7 the language that we are going to use is: "It is stipulated 8 that no defendants are charged with participating in the 9 Khobar bombing or in conspiring with respect thereto." 10 And I'll read that -- you're going to read that 11 statement? 12 MR. FITZGERALD: The agent will testify and I think 13 at some point we may offer the statement, but when it comes up 14 in his testimony, if your Honor doesn't do it sua sponte, I 15 will remind you. 16 THE COURT: Okay. 17 MR. DRATEL: Is the government going to offer the 18 document? 19 MR. FITZGERALD: We're going to mark the document. 20 We're going to discuss it with Mr. Ricco. Mr. Ricco may want 21 the document evidence. We're not going to do that in the 22 presence of the jury. We can discuss that out of the presence 23 of the jury at the end of the day. 24 MR. DRATEL: The only question I have, your Honor, is 25 just the issue of redaction, the jury being aware of 1593 1 redactions and some instruction as to the -- about redactions. 2 I'm not sure exactly how to address that. Something to the 3 effect that, you are not to draw any conclusions, it has 4 nothing to do with anything that is relevant to them. 5 THE COURT: There gets to be a point, you know, you 6 keep making an analogy about being instructed not to think of 7 something, there gets to be a point where it becomes 8 counterproductive. 9 MR. DRATEL: I understand, your Honor, but if -- 10 THE COURT: You give me in writing tomorrow morning 11 the language that you would like the jury to have if and when 12 the document itself is received in evidence. 13 MR. DRATEL: Thank you, your Honor. 14 (Jury present) 15 KIBARUA MJITTA, 16 called as a witness by the government, 17 having been duly sworn, testified as follows: 18 DEPUTY CLERK: Please stand for a moment, sir. 19 Please rise for a moment and please face the jury. 20 THE WITNESS: Stand up? 21 (Witness sworn) 22 DEPUTY CLERK: Stand up. 23 THE WITNESS: I should say that? 24 What I'm saying is the truth and nothing but the 25 truth. 1594 1 DEPUTY CLERK: Please be seated. 2 Please state your full name, sir. 3 DIRECT EXAMINATION 4 BY MR. FITZGERALD: 5 Q. If you lean forward into the microphone and state your 6 name, full name for the record. 7 A. My name is Kibarua Mikiir Mjitta. 8 Q. You have to sit forward with the microphone. It's 9 directional. If you get it six inches away from your mouth 10 and speak clearly, then everyone will hear. 11 If you could just state your name again. 12 A. My name is Kibarua Mikiir Mjitta. 13 Q. Why don't we go over that a little more slowly. Kibarua, 14 can you spell Kibarua for the record? 15 A. K-I-B-A-R-U-A. 16 Q. Okay. And Mikiir, could you spell that? 17 A. M-I-K-I-I-R. 18 Q. And Mjitta, could you spell that? 19 A. M-J-I-T-T-A. 20 Q. Can you tell the jury where you were born, what country? 21 A. Kenya. 22 Q. And could you tell the jury how old you are? 23 A. Born in 1957. 24 Q. And what do you do for a living? 25 A. I'm a civil servant. 1595 1 Q. And as a civil servant who do you work for in Kenya? 2 A. Fisheries Department. 3 Q. And for the Fisheries Department, do you work in a 4 particular location or job? 5 A. Kilifi. 6 Q. Is that K-I-L-I-F-I? 7 A. K-I-L-I-F-I. 8 Q. And can you tell the jury roughly where Kilifi is in 9 Kenya? 10 A. I beg your pardon? 11 Q. Is it near Khost, Kilifi? 12 A. It's Khost province. 13 Q. How long have you worked for the Fisheries Office? 14 A. This is the 21st year. 15 Q. 21st year? 16 A. Yes. 17 Q. How long have you worked for the Fisheries Office in 18 Kilifi? 19 A. From 1988. 20 Q. Can you tell the jury what you do for the Fisheries 21 Department in Kilifi? 22 A. I write both monthly and annual reports and collect 23 statistics and do fish processing, meaning inspection, and the 24 quality control. 25 Q. Inspection and what type of control? 1596 1 A. Fish quality control. 2 Q. So you make sure that the fish are of good quality? 3 A. For human consumption. 4 Q. Now, did there come a time when you met a person by the 5 name of Mohamed Odeh? 6 A. Yes. 7 Q. Can you tell the jury how you met Mohamed Odeh? 8 A. I met him in early 1996. I was introduced to him by my 9 fellow officer. 10 Q. And where was it that you met Mohamed Odeh? 11 A. Pardon? 12 Q. Where did you meet him? 13 A. Where? 14 Q. Yes. 15 A. At the Fishery port. 16 Q. Is Mohamed Odeh involved in the fish business? 17 A. Fishery? I beg your pardon? 18 Q. Is Mohamed Odeh, was he working in the fish business? 19 A. Yes, he was working fish business, yes. 20 Q. And how often did you see Mohamed Odeh after you first met 21 him in 1996? 22 A. Twice or once every month. 23 Q. And do you know, was there a particular boat that he 24 worked with in the fish business? 25 A. Yes, al Munarwar. 1597 1 Q. And do you know if al Munarwar is an Arabic word or 2 Swahili word? 3 A. Looks like Arabic word. 4 Q. And do you know what kind of car Mohamed Odeh drove? 5 A. Pardon? 6 Q. Did he drive a particular car? 7 A. Yes. Toyota Corolla model 1990, KAD550V. 8 Q. So it's a 1990 Toyota Corolla. And is KAD550V the license 9 plate? 10 A. What? 11 Q. Is KAD550V the license plate, the registration? 12 A. Sure. 13 Q. And how do you remember the registration of his car? 14 A. He used to drive me in his car. 15 Q. What do you do when you meet people who work in the fish 16 business? What contact do they have with you at your job for 17 the Fisheries Office in Kilifi? 18 A. Well, as a fish dealer, as Mohamed was a fish dealer, was 19 supposed to produce for me a fish movement permit, a fish 20 trader's license and a -- because he was telling me that he 21 was bringing fish from Kiunga, was to give me what you call 22 the daily fisherman's permit, which is issued by either 23 another office in Lamu or Kiunga. 24 Q. And you mentioned Lamu, L-A-M-U, and Kiunga, K-I-U-N-G-A, 25 and those are other towns in the Khost of Kenya, those 1598 1 other -- 2 A. He told me he came from Kiunga or Lama, so those are the 3 places I always knew about. 4 Q. And where is your office located? 5 A. Just at the beach. 6 Q. On the beach itself? 7 A. Yes. 8 Q. Now, did you notice anything unusual about the fish 9 business that Mohamed Odeh was involved in? 10 A. Yeah, there was something unusual. 11 Q. What was that? 12 A. The problem was that he was loading off the fish at night. 13 Q. And are you allowed to offload fish -- strike that. What 14 happens during the day when people offload fish? 15 A. There's always the Customs officer, there's always the 16 Fisheries officer. 17 Q. What do they do? 18 A. They inspect the fish. The Customs officer makes sure 19 that they issue the dockman, they inspecting always, and we, 20 as the Fisheries Department, make sure that the fish is fit 21 for human consumption and we get the correct documents. 22 Q. And does there come a time during the day when your office 23 is closed? 24 A. Beg your pardon? 25 Q. Does there come a time every day when you close the office 1599 1 and go home? 2 A. Sure. Yes. 3 Q. What time is that? 4 A. 4:30. 5 Q. And the people who unload the boats, do they go home a 6 certain time? 7 The unloaders, are there people who work at Kilifi 8 Port unloading boats? 9 A. Yeah, they go home. 10 Q. And how did you learn that Mohamed Odeh was offloading at 11 night? 12 A. Yeah, the loaders complained to me that they are not 13 receiving money from him because he was offloading his fish at 14 night. So they came, they complained to me. 15 Q. And did you ever have a conversation with Mohamed Odeh 16 after you heard these complaints about the offloading at 17 night? 18 A. Yes. 19 Q. And can you tell us what you said to him and what he said 20 to you? 21 A. I called him in my office and I told him that the loaders 22 were complaining that he was offloading fish at night and that 23 they are not getting anything out of him, so he said he would 24 stop. 25 Q. And did he stop offloading at night, as far as you know? 1600 1 A. Well, first of all, I had to, before I told him I had to 2 further investigate what the people were complaining was 3 right. In fact, we discovered that he was doing that, I 4 called him in the office and I told him that he should don't 5 quarrel with it, the office, because of the offloading fish at 6 night. 7 Q. During that conversation, did he ever indicate to you why 8 he was offloading at night? 9 A. No, he didn't tell me why. 10 Q. After he told you he would stop offloading at night, as 11 far as you know, did he ever offload at night again? 12 A. He stopped offloading at night. 13 Q. And do you recall when it was that you had this 14 conversation with Mohamed Odeh to stop offloading the fish 15 boat at night? 16 A. The time? 17 Q. Yes. I mean the year, the year and month. 18 A. The year, 1997. 19 Q. When did you start working in Kilifi? 20 A. Who? 21 Q. When did you start working in your current job at Kilifi? 22 A. Me? 23 Q. Yes. 24 A. Stop working? 25 Q. Start working. 1601 1 A. I'm still there. 2 Q. When did you begin? 3 A. I began in 1988 to date. I was in Kilifi station from 4 1988 to date. 5 MR. FITZGERALD: Excuse me one moment, your Honor. 6 (Pause) 7 MR. FITZGERALD: Nothing further, Judge. 8 THE COURT: Mr. Wilford. 9 MR. WILFORD: Thank you, sir. 10 May I inquire, your Honor? 11 THE COURT: Yes. 12 MR. WILFORD: Thank you. 13 CROSS-EXAMINATION 14 BY MR. WILFORD: 15 Q. Good afternoon, Mr. Mjitta. 16 A. Good afternoon, sir. 17 Q. Did I pronounce your name correctly, sir? 18 A. Well, I can't get some of your words. 19 Q. Is your last name Mjitta; is that correct? 20 A. Yeah, my last name. 21 Q. Could you say it for me, please? 22 A. Spell? 23 Q. No, say it, pronounce it. 24 A. Mjitta. 25 Q. Mjitta. Thank you, Mr. Mjitta. 1602 1 Mr. Mjitta, when you were working at Kilifi -- 2 A. I'm still working there. 3 Q. I understand. Back in 1997, there was a lot of fishing 4 boats that came into that particular port; isn't that correct? 5 A. Sure. 6 Q. And is it your testimony that you have been working for 7 the Department of Fisheries for about 21 years; is that 8 correct? 9 A. Sure. 10 Q. Now, I would like to have displayed, only to the witness 11 and to counsel, what has previously been marked as Odeh A for 12 identification. 13 I ask you to take a look at that screen, sir. Do you 14 see something on there? 15 A. Yeah, that is my office. 16 Q. Okay. So you recognize that to be a fair and accurate 17 depiction of the Port of Kilifi and the Fisheries Department 18 office there; is that correct? 19 A. Yeah, that is my fish port and the other one in red is the 20 office I sit. 21 MR. WILFORD: Your Honor, if there is no objection, I 22 offer Odeh A into evidence. 23 MR. FITZGERALD: No objection. 24 THE COURT: Received. 25 (Defendant Odeh Exhibit A received in evidence) 1603 1 MR. WILFORD: I ask that the picture now be displayed 2 to the jury as well. 3 I would now ask that Odeh Exhibit B be displayed to 4 the witness and counsel. 5 Q. Do you recognize that, sir? 6 A. Beg your pardon? 7 Q. Do you recognize that photograph? 8 A. Yes, this is the marine club. 9 Q. I'm sorry? Is that part of the Kilifi fishing port? 10 A. The other side. 11 Q. The other side? 12 A. Yes. 13 Q. Is that a fair and accurate depiction of how it looks, 14 Mr. Mjitta? 15 A. That is, that's the other side of. 16 Q. But that's the way the other side of it looks, right? 17 A. Yes. 18 MR. WILFORD: Your Honor, without objection, I offer 19 Odeh B in evidence. 20 THE COURT: Received. 21 (Defendant Odeh Exhibit B received in evidence) 22 BY MR. WILFORD: 23 Q. In your capacity, in your job as the -- working for the 24 Kenya Department of Fisheries, you are familiar with the 25 process by which boats are registered, licensed and fishing 1604 1 permits are issued; isn't that correct? 2 A. Yes. 3 Q. What paperwork must be presented in order for a boat to be 4 registered? 5 A. Well, when a boat is new, we first of all go to measure 6 it, see the length, and then you give what you call the local 7 vessel registration. 8 Q. Local vessel registration? 9 A. Yes. 10 Q. And then? 11 A. And the names, the owner, such like information. 12 Q. Okay. Does any paperwork need to be presented to the 13 Department of Fisheries to identify who the owner is or the 14 person registering a particular boat? 15 A. Only for, only for fishing vessels. Only for fishing 16 vessels. The owner is supposed to present that paper to show 17 to us that that boat has been registered as a fishing vessel. 18 Q. And does the boat also have to get a particular license 19 for that boat? In addition to it being registered, is there a 20 license for the boat as well? 21 A. If it is not a fishing vessel, it is a vessel that is 22 carrying fish, it's supposed to have a fish movement permit, a 23 fish movement permit, which is issued for vessels and is 24 costing 1,000 Kenyan shillings. 25 Q. 1,000 Kenyan shillings? 1605 1 A. Shillings. 2 Q. Do you know how much that is in U.S. dollars, sir? 3 A. Well, maybe you can compute by dividing it by 78 Kenyan 4 shillings. By 78 shillings, because one dollar is 78 Kenyan 5 shillings. 6 Q. A fishing license, there are two kinds of permits that you 7 talked about, right? 8 A. Yes. 9 Q. One to move fish? 10 A. Yes. 11 Q. And one to actually fish, to actually catch fish from the 12 ocean; is that correct? 13 A. Yes. 14 Q. Do you remember, sir, whether or not the boat that you 15 described Mr. Odeh as owning, did that boat have a permit to 16 move fish? 17 A. Yeah, I can remember it had a permit to move fish, but I 18 can't remember where it was issued, but it had a fish movement 19 permit. 20 Q. So it had a permit to move fish and also to catch fish 21 from the ocean? 22 A. No, no, no, no, not to catch fish. 23 Q. No? Only to catch fish? 24 A. Not to cash fish. 25 Q. Not to catch fish. 1606 1 Now, how many tons of fish, if you know, sir, were 2 being transported on this boat? 3 A. Well, sometimes they used to tell me he had come with two 4 tons, sometimes one ton. 5 Q. And the cost for the fishing permit you said was a 6 thousand shillings. What was the cost to simply register the 7 boat? 8 A. I beg your pardon? 9 Q. The cost to register the boat, how much did it cost to 10 register the boat? 11 A. The register? 12 Q. Yes. 13 A. For fishing or what? 14 Q. For fishing. I'm only going to be speaking about fishing, 15 not pleasure or cruises, only for fishing vessels. 16 A. For fishing vessels -- 17 THE COURT: To catch or to move? 18 MR. WILFORD: Fishing vessels that move fish. 19 A. Fishing vessels, we have different classes. We have 20 called the canoes. That's only registered with only 100 21 Kenyan shillings. Then you have the sports fisherman 22 licenses, which are registered at 500 Kenyan shillings. 23 Q. The boat that you have described, the Munarwar, what would 24 be the cost to register that particular boat as a fish moving 25 vessel? 1607 1 A. As for Mr. Odeh's boat, if it were for fishing, it would 2 cost 500 shillings. 3 Q. And what about for moving fish? 4 A. 1,000. 5 Q. So it's more expensive to move fish than it is to catch 6 it? 7 A. Sure. 8 Q. Now, you met with agents from America and Kenyan Criminal 9 Investigation Division personnel in October 1998; isn't that 10 correct? 11 A. Well, it's not my country, but I know I met them. I met 12 them. 13 Q. You met with them in October 1998? 14 A. Yes. 15 Q. You met with them in February -- you met with only 16 American agents on February 1, 1999; isn't that correct? 17 A. Yes. 18 Q. They came to your office and you talked with them? 19 A. Yes. 20 Q. And in May of last year, May 27 of last year, you met with 21 American agents and CID personnel; isn't that correct? 22 A. Yes. 23 Q. And CID is the Criminal Investigation Division of the 24 Kenyan police; is that correct? 25 A. Yes. 1608 1 Q. That's a different branch of government than the one that 2 you're in; is that correct? 3 A. Yes. 4 Q. You have to answer, sir, so she can take down what you are 5 saying. 6 A. Oh, yes. 7 THE COURT: You had two questions. You asked whether 8 he met with them and whether CID was a different branch of 9 government, and the answer was yes, I assume it was, to both 10 parts, but it's not clear. 11 MR. WILFORD: The witness answered the first one. I 12 believe the answer to both was yes. 13 THE COURT: Very well. 14 Q. Isn't it a fact, sir, that Mr. Odeh personally went out on 15 a boat, with a boat and went out to get fish and move fish; 16 isn't that correct? 17 A. I beg your pardon? 18 Q. Mr. Odeh personally went out on a boat when the boat went 19 out to move fish from one location to another; isn't that 20 correct? 21 A. Sometimes he had accompanied the boat to go and take the 22 fish. 23 Q. Right. Not all the time, but sometimes he accompanied the 24 boat; isn't that correct? 25 A. Yes. 1609 1 Q. And he also, sir, isn't it correct, had people working for 2 him on the boat; isn't that correct? 3 A. There were people working on his boat. 4 Q. Yes, there was a captain? 5 A. Yes. 6 Q. And there were some crewmen; isn't that correct? 7 A. Yes. I know their names. 8 MR. WILFORD: I would ask that the map be displayed 9 to the witness and counsel at this point. 10 (Pause) 11 MR. WILFORD: I'll move on and hopefully we'll solve 12 the technology glitch. 13 Q. Sir, when you were discussing Mr. Odeh's moving fish on 14 the boat, do you know where he went to obtain the fish? 15 A. He told me personally that he took the fish from Kiunga. 16 Q. From where? 17 A. Kiunga. 18 Q. Could you spell that please, sir? 19 A. K-I-U-N-G-A. 20 Q. And that's in Kenya; isn't that correct? 21 A. Yes, it's in Kenya. 22 Q. Now, isn't it a fact that he also went to Kismayo, 23 Somalia, to get fish as well? 24 A. That much I don't know. 25 Q. Excuse me? 1610 1 A. That much he didn't tell me. 2 Q. Well, did you, sir, in fact not tell the American 3 authorities when you spoke with them that one of the places 4 that Mr. Odeh went to obtain fish was Kismayo, Somalia? 5 You want to take a moment to think about it? 6 A. Me? 7 Q. Yes, you. 8 A. No, I didn't. What he told me, Mr. Odeh, is that he took 9 fish from either Lama or Kiunga. 10 Q. I'm not asking you what he told you at this point, sir. 11 I'm asking you, isn't it a fact that you told the American 12 authorities when they spoke with you that he obtained fish at 13 Kismayo, Somalia? 14 A. No. I don't remember that. 15 Q. You don't remember that? 16 A. No. 17 MR. WILFORD: The map is up now? No. 18 Judge, may I have just one moment? May I approach 19 the witness -- 20 THE COURT: Yes. 21 MR. WILFORD: -- in an effort to refresh his 22 recollection. 23 Q. Sir, I would ask you to read that particular paragraph to 24 yourself and tell us if that refreshes your recollection as to 25 whether or not you have told the American authorities that 1611 1 Mr. Odeh obtained fish at Kismayo, Somalia. 2 MR. WILFORD: Your Honor, may I just stay here for a 3 moment? 4 THE COURT: Yes. 5 A. Yeah. 6 Q. Did you have an opportunity to read this, sir? 7 A. Now I remember. 8 Q. Did it refresh your recollection? 9 A. Yeah. 10 Q. Isn't it a fact that you told them that? 11 A. I beg your pardon? 12 Q. Isn't it a fact that you told them that you obtained fish 13 in Kismayo -- 14 A. Yeah. 15 Q. -- somalia; isn't that correct? 16 A. Yeah. 17 Q. Now, sir, I would ask you to be kind enough to look at the 18 screen. You might want to use your glasses because it's 19 not -- 20 Yes, do you see Kismayo? Do you see Kiunga on the 21 map? 22 A. I see Kiunga, but I don't see Kismayo. 23 Q. Okay. Kismayo is north of Kiunga; isn't that correct? 24 A. North? 25 Q. North of Kiunga? 1612 1 A. Yeah. 2 Q. Now, when you were -- I'm sorry, could you please tell the 3 jury what the distance is from, if you know, from Kilifi, 4 Kilifi to Mombasa? 5 A. Should be around 56 kilometers. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1613 1 Q. Fifty-six kilometers? 2 A. Yes. 3 Q. Do you know how far it is from Kilifi to Witu? 4 A. I don't know. 5 Q. What about from Mombasa to Nairobi? 6 A. I don't know. I don't exactly know. 7 Q. Is it a long drive from Mombasa to Nairobi? 8 A. It's very far. 9 Q. When you were speaking about the fish being offloaded at 10 Kilifi, the fish was then transported to Mombasa; isn't that 11 correct? 12 A. Yes. 13 Q. Mr. Odeh used a driver, a truck to drive the fish from 14 Kilifi to Mombasa for sale; isn't that correct? 15 A. Yes. 16 Q. Because there are no markets in Kilifi. The real markets 17 where you can make money with your fish is in Mombasa; isn't 18 that correct? 19 A. Yes. 20 Q. Sir, when you spoke about the fish being offloaded at 21 night by Mr. Odeh, he wasn't doing that by himself, was he? 22 A. He was doing it maybe with his crews. 23 Q. With his crew? 24 A. Yes. 25 Q. And the reason you got a complaint was because he was 1614 1 using his own people to offload the fish and the people at the 2 port who were making money offloading the fish weren't getting 3 paid, right? That's the reason you got the complaint, right? 4 A. No. Personally, the department was missing information, 5 statistics from Mr. Odeh. One of our duties is to collect 6 statistics. 7 Q. So you were missing statistics? 8 A. Yes, because he was making it at night. 9 Q. But didn't you also just tell the jury on direct 10 examination that the people who offloaded the fish from the 11 boats came to you and said Mr. Mjitta, this boat is unloading 12 at night because you didn't know because you went home, right? 13 A. The complaint was there and we were also missing the 14 statistics for Mr. Odeh. 15 Q. I understand, but there was a complaint. 16 A. From? 17 Q. People who told you about it, right, people who offloaded 18 the fish, isn't that correct, they told you there is a problem 19 here, right? 20 A. Sure. 21 Q. Sir, the truck that was used, that was a personal contract 22 that Mr. Odeh had with that particular truck; isn't that 23 correct? 24 A. I beg your pardon. 25 Q. The truck that was used to transport the fish from Kilifi 1615 1 to Mombasa, that wasn't one of the trucks that was part of the 2 ordinary Kilifi run; isn't that correct? 3 A. It was not from Kilifi. 4 Q. Right. Mr. Odeh had his own contract with that truck, 5 right, and he used the same truck all the time, right? 6 A. I can't remember, but I know there was a truck with a 7 double cabin, blue, that used to carry his fish. 8 Q. And that was the only truck that carried his fish; isn't 9 that correct? 10 A. Yes. 11 Q. Sir, isn't it a fact that fish that sold at the market in 12 Mombasa has to be there very early in the morning? 13 A. Not necessarily. 14 Q. No? You don't have the fish when the market opens, fresh 15 fish early in the morning for restaurants and entities of that 16 sort? 17 A. Not necessarily. 18 Q. OK. The bottom line is this, though. When Mr. Odeh was 19 offloading his boat at night, you spoke to him and told him 20 that you shouldn't do that; isn't that correct? 21 A. Yes. 22 Q. And when you spoke to him, he stopped offloading at night 23 and it wasn't done again; isn't that correct? 24 A. He didn't do it but it was up there, it was the end of 25 1997, and then I didn't see him again. 1616 1 Q. But it ended. You told him not to do it and he didn't do 2 it any more, isn't that correct? 3 A. Yes. 4 MR. WILFORD: Thank you very much. No further 5 questions, your Honor. 6 THE COURT: Any redirect? 7 MR. FITZGERALD: No, Judge. 8 THE COURT: Thank you. You may step down. 9 (Witness excused) 10 MR. FITZGERALD: The government calls Special Agent 11 John Anticev, A-N-T-I-C-E-V. 12 JOHN MICHAEL ANTICEV, 13 called as a witness by the government, 14 having been duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. FITZGERALD: 17 Q. Agent Anticev, just keep your voice up, as you have been 18 doing, and recognize that is a directional microphone. So if 19 you stay close to it, everyone will hear. 20 Can you tell the jury what you do for a living. 21 A. I am a special agent with the FBI, assigned to the New 22 York office. 23 Q. For how long have you been an FBI agent? 24 A. I am in my 14th year. 25 Q. Directing your attention to August 1998, did there come a 1617 1 time that you deployed to Kenya as part of your duties with 2 the FBI? 3 A. Yes. 4 Q. Was that following the bombings in Africa? 5 A. Yes. 6 Q. Let me direct your attention to later that month. Did 7 there come a time when you interviewed Mohamed Sadeek Odeh? 8 A. Yes. 9 Q. Can you tell the jury what day you began to interview 10 Mohamed Sadeek Odeh. 11 A. We began the interview on August 15. 12 Q. For how many days did you interview Mohamed Odeh in Kenya? 13 A. Until August 27. 14 Q. After that point in time, was Mohamed Odeh brought back to 15 the United States? 16 A. Yes, he was. 17 Q. Between August 15 and the 27th, did you interview him 18 every day? 19 A. Not every day. 20 Q. Do you know how many days you did not speak to him during 21 that time? 22 A. Approximately two days. 23 Q. When you did interview him, what was the earliest, or when 24 did you generally start interviewing him during each 25 interview? 1618 1 A. During the daytime we started about, the earliest we 2 started was about 9, sometimes later. 3 Q. How late would you work during those interview sessions? 4 A. We never worked past -- one time we worked till 6. That 5 was probably the latest. 6 Q. Did you always interview him for the full day or did you 7 ever work half days? 8 A. We worked several half a days. 9 Q. Let me direct your attention to the first day of the 10 interviews, August 15. Do you know what time you started that 11 day? 12 A. We started approximately 10:00. 13 Q. Where did the interview take place? 14 A. At Kenyan police department headquarters. 15 Q. Was it inside that Kenyan police headquarters building? 16 A. Yes. 17 Q. Can you tell the jury who was present for the interview? 18 A. Myself, two other US officials, and three Kenyan 19 officials. 20 Q. Over the course of the following days, was it always the 21 same people there? 22 A. No. 23 Q. Generally, how many American officials were present during 24 the interview? 25 A. Two to three. 1619 1 Q. How many Kenyan officials would be present? 2 A. It varied. Sometimes three, sometimes two, sometimes one. 3 Q. In what language did you conduct the interview? 4 A. In English. 5 Q. Did you have any difficulty understanding Mr. Odeh in 6 English? 7 A. No. 8 Q. Did you ever have to repeat a question or have him repeat 9 an answer to a question? 10 A. Yes. 11 Q. Did he ever ask you to repeat a question to him? 12 A. Yes. 13 Q. Can you tell the jury how you began the interview on 14 August 15. 15 A. On August 15 we started the interview by first advising 16 Mr. Odeh of his rights. We told him that he had the right to 17 remain silent, anything he said would be used against him. We 18 were going over a form that the FBI uses when dealing with 19 subjects overseas, and the form also went on to say that if 20 you were in the United States you would have the right to have 21 an attorney present and if you were in the United States, if 22 you could not afford an attorney one would be appointed to 23 you. 24 Q. Let me approach you with what has been premarked as 25 Government's Exhibit 3 for identification, and I will ask you 1620 1 if you recognize this form? Do you recognize Government's 2 Exhibit 3? 3 A. Yes. 4 Q. What is that? 5 A. That is the advice of rights form that he signed. 6 Q. You mentioned that you read it to him. Did you show him a 7 copy of that form? 8 A. Yes. 9 Q. What happened when you finished reading the form or while 10 you were reading the form and showing him a copy of the form? 11 A. While we were explaining the form to him he had a 12 question. When we were talking about attorneys, he said, he 13 mentioned something about having an attorney available; a 14 Kenyan attorney. 15 Q. What happened then? 16 A. He asked a couple of other questions, and that original 17 question got lost because he followed up with another 18 question, and eventually he stated that he would be willing to 19 talk to us, but he did not want to sign the form, he first 20 wanted to talk, how he called it, small talk to get to know 21 each other. 22 Q. What happened then? 23 A. At that point we didn't want to pursue that, with that 24 question that he had outstanding, so we broke and we went out 25 into the hallway to discuss that amongst ourselves and with 1621 1 the Kenyans. 2 Q. Did you go back into the room with Odeh after that? 3 A. Yes. 4 Q. What if anything was Odeh told at that point? 5 A. We told him that I had talked to the Kenyan authorities 6 and that under their rule of law, that a Kenyan -- that they 7 don't have the same thing as we do, they don't have the right 8 to counsel at that stage of the investigation. 9 Q. What else if anything was said to Odeh at that point about 10 his rights? 11 A. We told him that we could not provide him with an 12 attorney, we did not have a United States, a U.S. attorney 13 with us to represent him. We told him that if he wished to 14 have an attorney that we would respect that wish, and then the 15 US representatives would not partake in the interview and we 16 would leave the room. 17 Q. Just so we are clear for the record, he had asked about an 18 Kenyan attorney and one of the things you made clear to him 19 was that you did not have an American attorney available there 20 to represent him. 21 A. Right. 22 Q. Can you explain what you understood about a Kenyan 23 attorney. 24 A. We also asked him if he had his own Kenyan attorney. He 25 said he did not have an attorney. We told him we could not 1622 1 provide him a Kenyan attorney. 2 Q. What was he told about what his options were at that point 3 in time? 4 A. We told him he had basically three options. One was that 5 he had the right to remain silent and he did not have to talk 6 to either the Kenyan authorities or the US authorities, and if 7 he invoked that right to not talk, that would have ended the 8 matter right there. And the second option was that if he 9 wished to have an attorney present during that questioning, 10 that we would oblige that and we would leave the room. And 11 then he would have to be with the Kenyan authorities to 12 continue the interview or interrogation, but he also had the 13 right to tell them that he didn't want to talk. And the third 14 option was that he could talk to the US authorities and the 15 Kenyan authorities together with no attorney. 16 Q. What if anything did Odeh say when that was explained to 17 him? 18 A. He came up with a fourth one. He said can I just talk to 19 the US authorities alone? 20 Q. What happened at that point? 21 A. At that point we all left the room to discuss that. 22 Remaining in the room with Mr. Odeh was a Kenyan official, and 23 by the time I got out to the hallway, the Kenyan official came 24 out and said he's agreed to talk to both of us, to both 25 authorities. 1623 1 Q. Did you go back in the room with Odeh at that point? 2 A. Yes. 3 Q. Did he indicate anything about whether he was willing to 4 talk to both the Kenyan and American authorities? 5 A. Yes. He said that he figured that if he spoke to the US 6 authorities alone, that we would tell the Kenyan authorities 7 anyway, so he figured why not just talk to both of them at the 8 same time. 9 Q. What happened at that point? 10 A. At that point he agreed to talk and he signed the form. 11 Q. What happened then? 12 A. He asked some questions about what if I change my mind. 13 We told him that it was fine, that he was the boss, that he 14 was in complete control of his own way of dealing with us. He 15 could stop talking at any time. He could pick and choose to 16 answer the questions, if he didn't like a question he didn't 17 have to answer it. 18 Q. Did he then answer questions after that point? 19 A. Yes. 20 Q. What did he tell you about where he was born and where he 21 grew up? 22 A. He told me that he was born in Saudi Arabia and grew up in 23 Jordan. 24 Q. Did he indicate what his ethnic heritage was? 25 A. That he was of Palestinian heritage. 1624 1 Q. Over the course of the interviews, did he indicate what 2 other names he was known by besides Mohamed Sadeek Odeh? 3 A. He is also known as Abu Yasser, Noureldine, Marwan, and 4 Abu Moath. 5 Q. Did he indicate whether he had a son during the interview? 6 A. Yes. 7 Q. What was the son's name? 8 A. Yassi. 9 Q. What did he tell you about where he went to school? 10 A. He, I believe, went to school for the earlier grades back 11 in Jordan, but in 1986 he went to university, the Far Eastern 12 University in Manila, Philippines. 13 Q. Did he indicate what he studied at that school? 14 A. Architecture and engineering. 15 Q. Did he indicate whether he became involved in any studies 16 besides school during the time he was in the Philippines? 17 A. Yes. During his studies in the Philippines, he became 18 active in Islamic societies, and he also mentioned a Kuwaiti 19 Islamic center that he used to go to. 20 Q. Did he indicate what if anything he was exposed to when he 21 would go to Islamic societies in the Philippines? 22 A. Yes. He became particularly interested, he told me, in 23 the concept of jihad by listening to tape recordings and 24 videos of individual named Abdallah Azzam, who was the leader 25 of Arabs who were fighting in Afghanistan. 1625 1 Q. Did he indicate whether there came a time when he left the 2 Philippines? 3 A. Yes. In his final year of school, he was getting ready to 4 do his thesis, but he needed a thousand dollars, and his 5 father sent him a thousand dollars, and when he got that money 6 he decided to call a religious scholar back home where he came 7 from, to ask him his advice on what to do with the thousand 8 dollars, should he use it to complete his studies or should he 9 use it to join the jihad movement and go to Afghanistan and do 10 jihad. 11 Q. Did he indicate what advice he was given and what he did? 12 A. His advice that was given to him was to stop what he was 13 doing immediately and go do jihad. 14 Q. What did he tell you that he did? 15 A. From the Philippines he traveled to -- made his way to 16 Afghanistan but he traveled first to Hong Kong and then to 17 Pakistan. 18 Q. Did he indicate where he went in Pakistan? 19 A. Yes. He landed in Karachi and then went from Karachi to 20 the city of Peshawar. 21 Q. Did he indicate how he got from Karachi to Peshawar? 22 A. By bus. 23 Q. What did he tell you that he did once he arrived in 24 Peshawar? 25 A. When he first arrived at Peshawar, he went to a place 1626 1 called Bait Al Ansar, which I think it translates to House of 2 Support, where people who were doing that, that's the first 3 place they stopped. 4 Q. Did he tell you approximately what year, and, if you 5 remember, what month it was that he went from the Philippines 6 to Peshawar, Pakistan? 7 A. I think it was October 1990. 8 Q. What did he tell you happened when he arrived at the Bait 9 al Ansar in Peshawar, Pakistan? 10 A. He stayed there for two days, I believe, and then he made 11 his way by bus to the Afghan border. 12 Q. Then what did he tell you happened there? 13 A. After he got to the border they transferred to another 14 vehicle, and they went to one of the camps, called the Farouq 15 camp. 16 Q. Did he tell you what city, if any, was located near the 17 Farouq camp? 18 A. It's in the area of Khost. 19 Q. What did Mr. Odeh tell you happened at the Farouq camp? 20 A. That was where he received his first series of basic 21 training. 22 Q. Did he tell you how long he spent at the Farouq camp? 23 A. Approximately two months. 24 Q. Did he tell you what type of training he received during 25 those two months? 1627 1 A. He received military training that was broken up into 2 three segments. The first segment was basic use of firearms, 3 particularly the AK47, and kind of moved up to a belt-fed 4 machine gun. 5 Q. Did he describe what the second level of training was like 6 at the Farouq camp? 7 A. The second level, they started learning about topography, 8 map reading, and they got introduced to explosives, 9 particularly C3, C4, and TNT. 10 Q. Did he indicate what happened at the third level of 11 training? 12 A. The third level of training involved more sophisticated 13 weapons, like antitank missiles, rocket launchers, mortars, 14 and antiaircraft weapons. 15 Q. Did Odeh indicate who was the person in charge of the camp 16 at the time he was training? 17 A. For most of the time there, except for the first two 18 weeks, the person in charge was a guy named Basheer. 19 Q. Did Odeh indicate what country Basheer was from? 20 A. I don't remember. 21 Q. Did Odeh indicate whether or not he was approached by any 22 organization at or about the time or after the time he 23 attended the Farouq camp? 24 A. While at the Farouq camp, he was approached by members of 25 the of Al Qaeda organization, if he was interested in joining. 1628 1 Q. Did he indicate his belief as to why he had been 2 approached? 3 A. He stated that he was approached because of his good 4 character, his understanding of the religion, and his ability 5 to get along with other people. 6 Q. Did Mr. Odeh tell you at that time whether he decided at 7 that time to join the Al Qaeda group? 8 A. At that time he decided against joining. He wanted to 9 wait for a while. 10 Q. Did he tell you what he then did after he finished his 11 training at the Farouq camp? 12 A. After he finished the training at the Farouq camp, they 13 were sent back to Peshawar, where they were going to be 14 deployed. 15 Q. Did he indicate how long he stayed at Peshawar after he 16 went back there? 17 A. He didn't stay very long. He had to take care of some 18 dental work. He had dental problems. 19 Q. What happened after that? 20 A. After that, he was sent to Jalalabad to work -- that's not 21 too far from where the fighting was going on. He was sent to 22 Jalalabad to work in a rear area support for the front lines. 23 Q. Did he indicate what role he played in the rear area 24 support in Jalalabad? 25 A. I believe he was taking care of wounded. 1629 1 Q. Do you know if he was working as a medic? 2 A. Yes, medic. He was taking care of wounded people. 3 Q. Did Odeh indicate how long he spent in the area of 4 Jalalabad at that time? 5 A. I believe he was there for about a month. 6 Q. What did Odeh tell you he did after that month in the area 7 of Jalalabad? 8 A. After that, he went back to Peshawar. 9 Q. Did he indicate what he did there? 10 A. After he returned to Peshawar, he was only there a short 11 time, and then I believe he wound up going back to Jalalabad. 12 Q. Did he indicate what happened on his second time he went 13 to Jalalabad? 14 A. The second time he went to Jalalabad, he went back as a 15 medic and he was -- well, when he was in Peshawar that 16 first -- after the camp, after Jalalabad the first time, a 17 doctor, I believe his name was Mohamed, approached him and 18 said if he wanted to go back and be a medic for a small 19 salary, and he did. 20 Q. What happened when he went back to Jalalabad to serve as a 21 medic? 22 A. While there, he was injured in an air raid. He was 23 wounded in the head. 24 Q. What did he do as a result of the wounds? 25 A. He went again back to Peshawar to recover. 1630 1 Q. Did he indicate what he did after he recovered from the 2 injury? 3 A. I believe that -- 4 Q. Let me ask you this. Did he tell you about a number of 5 different camps and places where he served -- 6 A. He went back into Afghanistan to several of the camps. I 7 believe the second camp he went to after that was the Jihad 8 Wal camp. 9 Q. What did he tell you -- first of all, did he tell you how 10 long, approximately, he spent at the Jihad Wal camp? 11 A. I think 45 days. 12 Q. Did he tell you what he did at the Jihad Wal camp? 13 A. At that camp, they learned different military tactics. 14 They trained in how to attack certain installations and 15 certain points. 16 Q. Did he indicate whether or not he received any nonmilitary 17 training during that time period after he was done in the 18 Jihad Wal camp? 19 A. After the Jihad Wal, a friend of his asked him if he 20 wanted to go for a three-month religious studies course. 21 Q. Did Odeh indicate whether he did -- 22 A. Yes, and he did, he went to that course. 23 Q. Did he indicate where he attended these studies? 24 A. In the area, I believe, around Pakistan -- I mean, in 25 Peshawar. 1631 1 Q. Did he indicate when he was done the three months of his 2 Islamic training or study, do you recall what time frame he 3 indicated that would be? 4 A. That was around early '92. 5 Q. Did he indicate whether or not the topic of his joining Al 6 Qaeda ever came up again in 1992? 7 A. Yes. And he was approached to join Al Qaeda at that time, 8 and he decided that he wanted to join Al Qaeda, he was 9 impressed with the philosophy of it and he wanted to join. 10 Q. Did he indicate what it was about Al Qaeda versus other 11 groups that made Al Qaeda attractive to him? 12 A. He liked Al Qaeda because it represented the whole Muslim 13 world. He told me that he didn't want to join like a 14 Palestinian group or another group based upon one country, one 15 ethnic background, because Al Qaeda represented all Muslims. 16 Q. Did he indicate what he thought of whether or not Al Qaeda 17 was Islamically pure as compared to the other groups? 18 A. He did. He said that compared to the other groups that Al 19 Qaeda was Islamically pure and that the leadership in other 20 groups might do things that are not Islamically correct. 21 Q. Did he indicate how he went about becoming a member of Al 22 Qaeda? 23 A. Yes. He took bayat, it's called. 24 Q. Did Odeh explain to you what his understanding -- this 25 will be the last question, your Honor. 1632 1 Did Odeh indicate to you what his understanding was 2 of what the bayat required him to do? 3 A. Bayat is when he pledges his allegiance to Usama Bin Laden 4 and that he will follow his orders as long as those orders are 5 Islamically correct. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1633 1 MR. FITZGERALD: Your Honor, I think we could break 2 there. 3 THE COURT: All right. We will call it a day. Thank 4 you for your patience and cooperation, and we will resume 5 tomorrow at 10:00 a.m. 6 (Witness excused) 7 JUROR: Your Honor, can we take these transcripts 8 with us? 9 THE COURT: Are the transcripts to be taken or not? 10 MR. FITZGERALD: I think they should, yes. 11 THE COURT: Yes, you may keep them. 12 (Jury excused) 13 THE COURT: Anything which needs to be addressed 14 before we continue? We are adjourned until tomorrow. 15 (Proceedings adjourned until 10:00 a.m., Wednesday, 16 February 28, 2001) 17 18 19 20 21 22 23 24 25 1634 1 INDEX OF EXAMINATION 2 Witness D X RD RX 3 L'HOUSSAINE KHERCHTOU...1508 1508 1538 1556 4 KIBARUA MJITTA..........1593 1601 5 JOHN MICHAEL ANTICEV....1616 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 5 ..........................................1555 9 35, 93 and 93-T ............................1571 10 34, 81 and 81-T ............................1572 11 36; 201A and 201A-T; 12 202A and 202A-T; 203A 13 and 203A-T; 204A and 204A-T; 14 204B and 204B-T; 205A and 2505A-T; 15 207A and 207 ...............................1577 16 DEFENDANT EXHIBITS 17 Exhibit No. Received 18 A ..........................................1602 19 B ..........................................1603 20 21 22 23 24 25
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