29 March 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.
This is the transcript of Day 24 of the trial, 29 March 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
3512 13T1BIN1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF AMERICA 4 v. S(7)98CR1023 5 USAMA BIN LADEN, et al., 6 Defendants. 7 ------------------------------x 8 New York, N.Y. 9 March 29, 2001 10:00 a.m. 10 11 12 Before: 13 HON. LEONARD B. SAND, 14 District Judge 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 3513 13T1BIN1 1 APPEARANCES 2 MARY JO WHITE United States Attorney for the 3 Southern District of New York BY: PATRICK FITZGERALD 4 MICHAEL GARCIA KENNETH KARAS 5 PAUL BUTLER Assistant United States Attorneys 6 7 SAM A. SCHMIDT Attorneys for defendant Wadih El Hage 8 ANTHONY L. RICCO 9 EDWARD D. WILFORD CARL J. HERMAN 10 Attorneys for defendant Mohamed Sadeek Odeh 11 FREDRICK H. COHN DAVID P. BAUGH 12 LAURA GASIOROWSKI Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 13 DAVID STERN 14 DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed 15 16 (In open court; jury not present) 17 THE COURT: Good morning. You may be seated. 18 This matter is being addressed in open court. If at 19 any point anybody believes that they for security reasons, 20 meaning security in the broader sense, they wish to repair to 21 the robing room, I should be so advised. 22 The Court has -- 23 MR. BAUGH: Excuse me, your Honor, for some reason -- 24 MR. COHN: I'm going back to the interpreter's booth. 25 We're having a problem. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3514 13T1BIN1 1 (Pause) 2 MR. COHN: It's fine now, your Honor. Thank you for 3 the indulgence. 4 THE COURT: There has been submitted to the Court for 5 its signature a number of subpoenas on behalf of the defendant 6 Al-'Owhali, to which the government has made objections orally 7 and by letter dated March 29th, which I'll mark Court Exhibit 8 I of today's date. 9 (Court Exhibit I marked) 10 THE COURT: The Court notes that there are present 11 the defendants Al'Owhali and Odeh. The Court stated on 12 Tuesday the nature of this conference and said that any 13 defendants who wished to attend might do so, but that the 14 appearance of defendants not immediately involved in these 15 matters was not required. 16 I think in addressing the subpoenas it is important 17 to understand what counsel for Mr. Al-'Owhali has advised the 18 Court, and which is apparent from the nature of the subpoenas 19 and their return date, these subpoenas are relevant to the 20 penalty phase of the case, and that the context in which one 21 will address issues of relevance and admissibility is a 22 context in which one supposes that the jury has found the 23 defendants guilty of crimes which carry the potential of the 24 death penalty. 25 So that at this stage of the case issues of guilt are SOUTHERN DISTRICT REPORTERS (212) 805-0300 3515 13T1BIN1 1 behind us and we deal with issues of mitigation or aggravating 2 circumstances. 3 I think we should begin with the issues relating to 4 American military actions against Iraq. I think then we have 5 to consider under what circumstances the nature or extent of 6 military actions taken by the United States against Iraq are 7 relevant. Subdivisions of that would be what is the relevance 8 of military actions taken by the United States against Iraq 9 subsequent to August 7, 1998, and what is the relevance of 10 information which was never known to Mr. Al-'Owhali, including 11 especially information which has never been made public and 12 would be made public presumably for the first time by the 13 response to the subpoena. Mr. Baugh, first of all, just as a 14 framework. 15 MR. BAUGH: Yes, sir. 16 THE COURT: The relevance of American military action 17 with respect to Iraq is what? 18 MR. BAUGH: If I may answer your question directly 19 and then give the background, all right? 20 THE COURT: If you do it in that sequence I'd 21 appreciate it. 22 MR. BAUGH: Yes, sir. Just when I thought the 23 honeymoon was over. I will do it in that sequence, your 24 Honor. The relevance would be to this. The defendant has not 25 only the right under the Constitution to present mitigators SOUTHERN DISTRICT REPORTERS (212) 805-0300 3516 13T1BIN1 1 and I believe in the McVeigh case he was trying to prove a 2 mitigator by showing these things happened subsequent, but 3 what I think the government misses and McVeigh affirms is that 4 the defendant has the right not only to present mitigators, 5 but to resist aggravators either to deny the existence of the 6 fact, to rebut that the mitigator, that the aggravator is 7 actually and aggravator -- yes, I'm sorry, that's drama 8 training -- or to deny the existence. 9 By that I mean, if for instance, and that was my 10 direct answer, it is relevant to his right to rebut factually 11 that a chosen aggravator is actually an aggravator, whether 12 statutory or nonstatutory, as we have cited in our answer and 13 I don't mean to belabor the point, or to be brief, Congress 14 has stated when they reinstated the death penalty that all 15 murders are not death qualified; that first there must be a 16 process arising from the statutory aggravators to show that, 17 for wont of a better term, the jurisdiction exists for the 18 jury to consider whether or not death is appropriate. 19 Once the government has shown the existence of 20 aggravators that are not, that are overborne by the statutory 21 mitigators then that qualifies the case to go to the next step 22 where the jury will consider whether or not the nonstatutory 23 aggravators overbear any nonstatutory mitigators and death is 24 the only appropriate sentence. 25 Now, if for instance, a defendant, and I'm being SOUTHERN DISTRICT REPORTERS (212) 805-0300 3517 13T1BIN1 1 hypothetical here, a defendant is charged with murder and the 2 government were to allege, by example, that this murder is 3 aggravated because he used a pistol, we could come in and 4 prove, one, that he didn't use a pistol, or, two, we can say 5 that he had to use a pistol, and the factual basis of that is 6 minimized, or, we can say, a pistol really isn't an aggravator 7 because everybody does it, and in the great scheme of things 8 pistols are not unique in this. 9 In the case before you, the United States has alleged 10 that my client -- I won't go through all the aggravators 11 because I know the Court is aware of them -- that the 12 aggravators include things like my client used a weapon of 13 mass destruction, or that my client used a weapon of mass 14 destruction with a reckless disregard for the lives of 15 innocents who might have been in the target area, and, 16 further, that these people, these victims, and they are 17 victims, were targeted solely because of their status as 18 American citizens. 19 Yes, sir? I can see you have a question. 20 THE COURT: No, I just took my glasses off. I'm 21 still not used to this having on my reading glasses. 22 MR. BAUGH: So, therefore, if we can come in and show 23 that this sort of activity is common and routine -- 24 THE COURT: What sort of activity is common and 25 routine? SOUTHERN DISTRICT REPORTERS (212) 805-0300 3518 13T1BIN1 1 MR. BAUGH: The use of weapons of mass destruction 2 and killing of innocents. If we can show in this case, and 3 this theater that is common, that would compel the jury to say 4 that aggravator may exist, but it's not that strong. 5 THE COURT: You're saying that because the United 6 States used bombs against Iraq that's a mitigator for 7 Al-'Owhali using bombs against the embassy? 8 MR. BAUGH: No, sir, it is not a mitigator. It is 9 rebuttal to the status of the allegation as an aggravator. 10 We're not just mitigating. We're coming in and saying this 11 isn't a really an aggravator in this case because it is a 12 matter of routine in this particular case. We're not offering 13 a mitigator. We are challenging, which is his right under the 14 United States Constitution, we're challenging the status of 15 the assertion as an actual aggravator, because, remember, your 16 Honor -- 17 THE COURT: I just want to make clear again, so that 18 we know the context in which this colloquy is taking place -- 19 MR. BAUGH: Yes, sir. 20 THE COURT: -- that the government has said -- 21 MR. BAUGH: Which page are you reading from, your 22 Honor? 23 THE COURT: On page 2, the last sentence of the 24 second paragraph: The government will argue at the guilt 25 phase and any penalty phase that Al-'Owhali's actions -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3519 13T1BIN1 1 actions emphasized -- were unlawful, entirely unreasonable, 2 and were motivated by his political beliefs, though we will 3 not seek to prove one way or the other whether his political 4 beliefs themselves are reasonable, and I think that's relevant 5 because as we know from the McVeigh case, which is in many 6 respects quite analogous to this where McVeigh was seeking to 7 show that law enforcement significantly mishandled Waco and 8 the Court limited the defense to issues related to what 9 McVeigh knew or could have known relevant to his state of 10 mind. 11 Then the question raised was whether the facts were, 12 regardless of whether were McVeigh knew them or not, were 13 relevant to the reasonableness of McVeigh's perception, and 14 the Court analyzing the record concluded that was not a basis 15 for admitting it. 16 Here the government is explicitly saying, we are not 17 going to challenge the reasonableness of his political 18 beliefs. The argument that I understand that you are now 19 advancing is an argument in which Al-'Owhali's state of mind 20 is irrelevant. You are arguing that you should be able to 21 argue to the jury that it is a mitigating factor with respect 22 to Al-'Owhali's use of explosives against the embassy that the 23 United States used and uses explosives with respect to Iraq? 24 MR. BAUGH: Your Honor, I'll try to answer the four 25 questions you just asked. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3520 13T1BIN1 1 THE COURT: All right. 2 MR. BAUGH: You ganged up on me. First, you say I am 3 now arguing. No, I have always argued this perspective. I 4 assumed that everyone knew the role that aggravators and 5 mitigators play in determining who gets death, and the fact 6 that a defendant has the obligation and the right not only to 7 present mitigators but to rebut aggravators, not only to rebut 8 them factually, but to rebut them as aggravators. 9 THE COURT: The aggravators that you're seeking to 10 rebut is that Al-'Owhali used weapons of mass destruction? 11 MR. BAUGH: No, your Honor. I am not rebutting the 12 fact. I am rebutting the assertion by the United States that 13 the use of that aggravator in this case is so great that it 14 qualifies to kill. Remember in these aggravators there is a 15 balancing test, all right? I have the option of putting 16 stuff, for wont of a better term, on the mitigation side and 17 try to tip it in my favor. 18 I also have the right, as indicated in McVeigh, over 19 here in the aggravator side to lessen the weight or the 20 intensity of the aggravator, not only factually but by 21 comparison to other cases and other uses. So, no, when you 22 said that I'm now saying that it's not mitigating, no, -- I'm 23 sorry -- I'm not saying it is a mitigator. The purpose of 24 this information is to lessen the effect of the aggravator. I 25 also want to point out what I -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3521 13T1BIN1 1 THE COURT: Tell me how, what lessens the effect of 2 the use of weapons of mass destruction? 3 MR. BAUGH: As the Court is aware factually in this 4 case, because while we are to a certain extent fortunate 5 because under 801(d)(2)(E), the United States has presented 6 all of these fatwas of the organization that my client is 7 charged with conspiring with, additionally, we have 8 Mr. Gaudin's recitation of my client's statement, his coerced 9 statement, wherein he says, he is doing -- it's motivation -- 10 but also, not only is it motivation, but, additionally, he's 11 talking about things that were in his knowledge about the 12 gravity of the situation. Specifically, as we have pointed 13 out in our answer, and also in Mr. Bin Laden's fatwas, the 14 reason the people in this organization, this al Qaeda, the 15 reason they hate Americans, they hate me, they hate us, is 16 because they say we have done certain things, and that these 17 things are being done to them are being done to them 18 frequently. 19 We are saying that we can lessen -- if we have access 20 to this information, and, by the way I'm not even getting to 21 the admissibility standards yet, because we're just talking 22 now about duces tecum standards, and if the admissibility 23 standard is a 401 standard the duces tecum standard is real 24 low, I mean low so you can step over it. That the access to 25 this information will permit us to develop information that SOUTHERN DISTRICT REPORTERS (212) 805-0300 3522 13T1BIN1 1 will challenge the sufficiency of whether or not these 2 aggravators can be used. I'm not saying that by your granting 3 these duces tecums you are saying, Mr. Baugh, you can have 4 this information, and, by the way, it's admissible. 5 THE COURT: You know, maybe we have to be a little 6 more specific. 7 MR. BAUGH: Yes, sir. I have the list in front of 8 me. 9 THE COURT: You asked in the subpoena directed to the 10 General who is in charge of the Central Command the total 11 number of United States aircraft based in Kuwait and Saudi 12 Arabia during any part of any years since the cease fire in 13 the Gulf War. 14 I don't expect that is a request which is calculated 15 to invite an objection, but apart from that, tell me how any 16 of that information dealing with events unknown to the 17 defendant and subsequent to the bombing lessens the aggravator 18 of the use on his part of weapons of mass destruction in 19 bombing the embassy. 20 MR. BAUGH: Your Honor, thank you. Here is what, 21 here is the aggravator attack. One of the aggravators alleged 22 by the United States against my client, one of the 23 nonstatutory is lack of remorse. They are saying that because 24 my client is not sitting here feeling bad for his actions he 25 should die. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3523 13T1BIN1 1 In the fatwa of June 1998 which was read in this 2 court, and is admitted in the record and predates the bombing, 3 Mr. Usama Bin Laden said: We must declare jihad against the 4 United States -- and believe me, I didn't know all this stuff 5 before -- we must declare jihad against the United States 6 because the Prophet said that there should be no two forces, 7 there shouldn't be Americans on the peninsula, and that we are 8 religiously bound to drive them out. Now, he said that. 9 My client, on the other hand, assuming the theory of 10 the United States is correct as alleged in their indictment, 11 they are saying that my client bought into this theory, and 12 was convinced that in order to do what is perceived as a 13 dictate from Allah, they must do this. 14 But there is not just motivation. If my client 15 because of acts that have occurred subsequent to 1998, if the 16 United States has used the Gulf War to get military forces 17 into Saudi Arabia and leave them there, that would explain his 18 lack of remorse today. Lack of remorse is not measured from 19 on the date of offense. It is whether or not at the time of 20 sentencing he exhibits remorse. If the action since 1998 21 proved in my client's mind the correctness of his position, 22 that explains his lack of remorse, because what was told by -- 23 THE COURT: The correctness of his position that? 24 MR. BAUGH: I'm sorry. I didn't hear the first word. 25 THE COURT: Correctness of his position that -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3524 13T1BIN1 1 finish the sentence. 2 MR. BAUGH: All right. That his lack of remorse 3 today is, in his estimation, justified because what he was 4 told would happen, did happen, and that -- 5 THE COURT: How does anything of which he does not 6 have knowledge reflect on the reasons for his lack of remorse? 7 MR. BAUGH: Well, first, your Honor -- 8 THE COURT: I want to also say in the context of this 9 issue that you have sought to subpoena various information 10 agencies allied with supporters of Iraq. 11 MR. BAUGH: Yes, well, not supporters, but, yes. 12 THE COURT: I'm choosing my words carefully, 13 information agencies who -- 14 MR. BAUGH: Who are knowledgeable of the situation. 15 THE COURT: -- are knowledgeable of the situation and 16 who have, like Friends of Iraq. That's not the exact name. 17 But who have an identification of that nature. And presumably 18 they will present evidence of those things which were known 19 and which deal with the nature of America's retaliations or 20 aggressions, depending on your viewpoint, with respect to 21 Iraq, which were known or could have been known to the 22 defendant both at the time of the bombing and at the time of 23 his lack of remorse. 24 MR. BAUGH: No. Now, I understand. Your Honor, 25 there are two answers to your question, both of which are SOUTHERN DISTRICT REPORTERS (212) 805-0300 3525 13T1BIN1 1 accurate. The first one is, no criticism intended, but you 2 must take yourself outside of the mitigation evaluation 3 process. 4 What I'm saying is this. If the United States said 5 that my client should die because he has a reckless disregard 6 and he used weapons of mass destruction against Americans, and 7 they say that qualifies under the law as an aggravator and 8 should be balanced against mitigators, if, by example I 9 introduce evidence that it's almost like saying: United 10 States, you're alleging this man is wrong because he does 11 this, and I can present evidence that the United States has 12 purposely prior to 1998, and continues to this day to 13 intentionally pollute the water system of this nation, Iraq, 14 causing the death of a half million children. I have a 15 videotape over there dated the summer of 1998 where Madeline 16 Albright in a 60 Minutes interview -- I have a transcript as 17 well -- said: We know we've killed a half million children 18 but we think the price is worth it. 19 Now, the question is when the jury hears that, will 20 they to a certain extent lessen the importance of the 21 government assertion that the fact that a bomb was used is a 22 true criteria for who lives and dies? Because if that's true, 23 then when Madeline Albright, I mean, if she ever gets 24 prosecuted, she's in trouble. 25 So what we're doing is we are legally attacking the SOUTHERN DISTRICT REPORTERS (212) 805-0300 3526 13T1BIN1 1 sufficiency of the aggravator in the balancing test as an 2 aggravator. We are not putting stuff on the mitigation side. 3 We are lessening the weight. We're lessening the impact 4 legally and factually then of the government's assertion of 5 aggravation. And I also want to point out when you say -- and 6 I must say this, because I know that the -- 7 THE COURT: I'm really trying to understand this. 8 MR. BAUGH: Can I explain -- 9 THE COURT: You're not saying two wrongs make a 10 right. 11 MR. BAUGH: No, your Honor, that's not my job. 12 THE COURT: And you're not saying -- 13 MR. BAUGH: That would be justification. 14 THE COURT: And you're not saying that it is less 15 shocking, to use a lay term, less shocking that the defendant 16 caused the death of hundreds of innocent Kenyans because 17 America in its actions with respect to Iraq also caused the 18 death of countless people. Is that the argument? 19 MR. BAUGH: Not quite. If I might, your Honor, can I 20 answer your question with a question? 21 Let me ask the question you should ask of me, all 22 right? Mr. Baugh, under McVeigh how is this appropriate? And 23 here is the answer. If Mr. Jones in the McVeigh trial instead 24 of trying to prove motivation had tried to prove that the 25 aggravator does not really amount to a valid aggravator, then SOUTHERN DISTRICT REPORTERS (212) 805-0300 3527 13T1BIN1 1 this opinion in McVeigh wouldn't control. McVeigh only limits 2 evidence of motivation on a mitigator. It does not limit, and 3 in fact, they come out and say that he can rebut any issue 4 that's raised. McVeigh doesn't say that. 5 So if you were to ask me that question, I would say, 6 counsel for Mr. McVeigh, rather than alleging this as purely 7 motivation, should have challenged the sufficiency of the 8 aggravator, and I'm assuming they used the weapon of mass 9 destruction as an aggravator. I have not seen the death 10 notice and I couldn't find it over the weekend. If they had 11 challenged the aggravator as sufficient, then it would have 12 been admissible. 13 Now, remember -- 14 THE COURT: And would lessen the significance of the 15 aggravator is what? 16 MR. BAUGH: I'm sorry, is what? I'm not being coy. 17 I'll really trying to follow you. 18 THE COURT: What is it, articulate for me what is it 19 that lessens the weight or the significance of the aggravator 20 of use of weapons of mass destruction? 21 MR. BAUGH: I'm sorry, your Honor, I'm trying to read 22 the note of my co-counsel, and it's really dreadful. 23 THE COURT: You say it's not two wrongs making a 24 right? 25 MR. BAUGH: No, your Honor, that would be SOUTHERN DISTRICT REPORTERS (212) 805-0300 3528 13T1BIN1 1 justification. 2 THE COURT: And you're not saying the fact that 3 hundreds of people die in the bombing, which is the subject of 4 this case, you're not saying, well, that's mitigated by the 5 fact that America's actions caused death of hundreds of 6 people. So tell me -- 7 MR. BAUGH: What I'm saying your Honor -- 8 THE COURT: -- what it is that reduces the weight or 9 the significance of the aggravating factor of use of weapons 10 of mass destruction? 11 MR. BAUGH: I have been able to decipher the 12 brilliance of my co-counsel. What I'm saying, your Honor, is 13 that because the use of weapons of mass destruction and the 14 death of innocents is an accepted norm in this nature of 15 warfare or in this nature of conflict, and, therefore, the 16 impact of the aggravator should be lessened, and if the jury 17 agrees -- 18 THE COURT: The more prevalent, the more prevalent a 19 terrorist act causing the death of innocent bystanders, the 20 more prevalent that is the less weight there is to the fact 21 that that occurred in this instance? 22 MR. BAUGH: No, your Honor, not less that it 23 occurred. Less weight should be given to it if proven that it 24 occurred. I'm assuming they can prove -- I mean. 25 THE COURT: We're past the guilt stage. I tried to SOUTHERN DISTRICT REPORTERS (212) 805-0300 3529 13T1BIN1 1 make that clear. 2 MR. BAUGH: Yes. 3 THE COURT: I want to point that out. The jury has 4 unanimously found beyond a reasonable doubt that your client 5 intentionally caused the death of hundreds of people. 6 MR. BAUGH: Yes, sir. 7 THE COURT: So we're not arguing justification and 8 we're not arguing guilt. I'm just trying to understand. 9 MR. BAUGH: Yes, sir, I know. 10 THE COURT: You're saying, reading your learned 11 colleague's note, that the fact that it's a norm impacts on 12 the significance of it, but when I paraphrase that and say, 13 you're saying that the more prevalent terrorist bombing 14 killing innocents are the less significant it becomes? You 15 know if that's the argument you want to make to the jury, I 16 think the government would be well advised to wish you God 17 speed. 18 MR. BAUGH: Well, if answering yes gets me past this 19 point I'll say yes, and we'll move on to the next issue. 20 I believe I'm entitled to see this information to see 21 if there is -- this is a duces tecum. We're not talking 22 admissibility here. We're talking whether I have access to 23 the information. If there is evidence to support this, and I 24 will tell the Court we are confident that it does, because for 25 instance, I notice in their brief they say that I had the SOUTHERN DISTRICT REPORTERS (212) 805-0300 3530 13T1BIN1 1 audacity to ask for a digitalized subset of wound studies. 2 This is the wound data and munitions effectiveness team at the 3 US hospital. It's a military website. And it brags about the 4 fact that they have computerized subsets of lethality studies. 5 So they have this stuff. So if I get access to this, and with 6 consultation with my co-counsel, and in consultation with my 7 client we determine that we should assert this position, then 8 we can. 9 I would also point out that as has been pointed out 10 in the Friend opinion, the aggravator by its very nature is 11 supposed to be -- 12 THE COURT: What opinion are you -- 13 MR. BAUGH: Friends. We cited the F. Supp. from 14 Judge Payne in Richmond. The aggravator by its nature in 15 order to get around the affirmance issue must be unique and 16 individualized. 17 The proposed rebuttal is an attempt to take the 18 impact of that aggravator out of the class of factors that are 19 unique or individualized, and it's nothing to do with 20 motivation. It's nothing to do with mitigation. It has to do 21 with rebutting whether or not, how much weight should be given 22 to this aggravator when and if proven. 23 Now, in saying that it is important that we go back 24 to the original death penalty cases and understand and reflect 25 upon the phases, the guilt phase which is distinct, then we SOUTHERN DISTRICT REPORTERS (212) 805-0300 3531 13T1BIN1 1 have the statutory phase, then we have the nonstatutory phase. 2 I mean we have, there is one penalty phase, but the 3 deliberation process is two-fold. 4 Anywhere in that deliberation process there are two 5 balancing tests or weighing considerations the jury is 6 supposed to give, and as I point out, any weight I can take 7 off their aggravator not only should I do, but my client under 8 McVeigh and under I think it's Gardener opinion we cited, 9 gives him a Constitutional right to do it. He must do it. 10 Now, going back to the duces tecum standard, I can 11 show you that everything I've asked for exists, and I mean 12 when you see my vouchers with all that Internet time it's not 13 wasted. That's what I'm doing. All this stuff is on the 14 Internet and it exists. 15 THE COURT: When you say "all this stuff," the total 16 number of US aircraft based in Kuwait and Saudi Arabia during 17 any part of any years? 18 MR. BAUGH: I can tell you based on an Internet site 19 that there are American squadrons that were not there prior to 20 the Gulf War, that are there. Now, and Mr. Bin Laden several 21 of his fatwas that were read here said, that the United States 22 used the Gulf War as a subterfuge to put troops in the 23 peninsula. And he did say that and the Court heard it. And 24 if you check the websites for various fighter squadrons you 25 will find, and, also, I will tell you I know the Virginia Air SOUTHERN DISTRICT REPORTERS (212) 805-0300 3532 13T1BIN1 1 Guard sends aircraft over there to serve tours that did not go 2 before the Gulf War. 3 Now, we're now going beyond the aggravator situation. 4 You've changed subjects on me, but -- 5 THE COURT: Yes. 6 MR. BAUGH: Well, you did. 7 THE COURT: Okay. 8 MR. BAUGH: Excuse me? 9 THE COURT: Yes. 10 MR. BAUGH: It's a Socratic process. I'm used to it. 11 THE COURT: You said all that you asked for, and I 12 was simply rebutting that. 13 MR. BAUGH: You were checking me. You were checking 14 me. 15 I will also tell the Court that just as an aside to 16 my personal knowledge I was exposed to being in the military. 17 My father is retired Air Force fighter pilot. Believe me I 18 know all this stuff. I was raised on military bases. 19 When I asked, well, the other things we asked for I 20 know from my training and experience, I know from my Internet 21 investigation and research, I know from the people in my 22 office who are so smart, I know that these things exist. I 23 know that they could have the potential. And that's the only 24 standard I have now on the duces tecum. They do have the 25 potential for me and my co-counsel to be able to utilize these SOUTHERN DISTRICT REPORTERS (212) 805-0300 3533 13T1BIN1 1 assets once we get them. 2 I also want to point out one other thing. There is a 3 unique legal issue you're going to have to resolve for the 4 first time. The government has objected to my subpoenas for 5 Madeline Albright and certain of these records under the Code 6 of Federal Regulations. 7 What I find interesting in the, and we cited it in 8 our letter, McVeigh asserts a Constitutional standard of 9 relevancy at a 401 level to acquire information and present 10 information on the penalty phase. 11 The Code of Federal Regulations creates a much higher 12 standard that the government can determine whether or not to 13 answer my subpoena. So I have a Constitutional right 14 mentioned in McVeigh, and we have some CFR paragraph stating 15 the government can decide the relevancy of these things, and 16 that's not the standard, and, of course, I've got a 17 Constitutional standard that controls. 18 It is the Court's job to determine relevancy, not the 19 United States government. So I'm objecting to that portion. 20 In fact, I'm also objecting to a certain extent, now, with 21 Madeline Albright we went in and supplemented yesterday, I 22 buckled, I said, I'm going to do it, because time is of the 23 essence, but, actually, I would say that the CFR -- 24 THE COURT: You raises again an issue which we 25 addressed during the testimony of Ambassador Bushnell, the SOUTHERN DISTRICT REPORTERS (212) 805-0300 3534 13T1BIN1 1 relevance of the alleged failure of the United States to alert 2 Kenyans to the threat of bombing? Now we're dealing 3 hypothetically in the sentencing phase. 4 MR. BAUGH: You changed gears again on me, okay. 5 THE COURT: I change again and this time I signaled 6 I'm changing. 7 MR. BAUGH: Yes, sir. Thank you. 8 THE COURT: Another issue, right? 9 MR. BAUGH: Yes, sir. 10 THE COURT: And tell me, you know, I analogized that 11 in my guilt phase in my May 6th memorandum. 12 MR. BAUGH: Oh, I remember the May 6th memorandum. 13 Yes, I remember that one. 14 THE COURT: But can you tell me -- 15 MR. BAUGH: The lawful effect of this? 16 THE COURT: This isn't a comparative negligence case, 17 right? Tell me what is the relevance to the fact that the 18 United States didn't say to Kenyan authorities: Look, we've 19 got this embassy and, we have all kinds of services and things 20 that we conduct in the embassy, but you should stay away from 21 it because there is a potential terrorist target. 22 MR. BAUGH: I am only hesitant because it's hard to 23 keep my personal views out of this. When I was 24 cross-examining Mr. al-Fadl, Jamal al-Fadl, the first 25 government informant, when he told this Court that part of his SOUTHERN DISTRICT REPORTERS (212) 805-0300 3535 13T1BIN1 1 job in 1994 -- I'm sorry -- 1996 was to find a million and a 2 half dollars worth of atomic explosives or raw material to 3 make a device, and that they were targeting US embassies, and 4 that this information was not disseminated, or whether it was 5 disseminated or not became very significant to me. That's 6 like saying: Can I come stay in your house? Of course you 7 can. By the way, the mafia's after me. That's relevant. 8 If the United States knew as early as 1996 when Mr. 9 al-Fadl came in and gave up the ghost and told all this, if 10 the United States chose not to warn those people who could be 11 injured by this, is that a reckless disregard for human life, 12 not two wrongs make a right. 13 THE COURT: Let's take the countervailing. Let us 14 say that every time there is any information that any public 15 facility, take the hypothetical, this courthouse, is a 16 potential target for terrorist activity, there is an 17 obligation to tell people, you come here at your own risk. 18 What a tremendous weapon that would give to terrorists to 19 modify the lifestyles of almost any aspect of public life. 20 MR. BAUGH: Two issues, your Honor. First, being a 21 Judge you and I have sworn an oath not to worry about the 22 security. I mean we're supposed to just protect the 23 Constitution, period, dot, and if the United States doesn't 24 want that to happen, they shouldn't bring a death notice 25 because I mean if we don't have a penalty phase, we don't have SOUTHERN DISTRICT REPORTERS (212) 805-0300 3536 13T1BIN1 1 that problem. But, more importantly I think to qualify 2 Mr. Bin Laden as any threat greatly underestimates -- remember 3 that when in 1996 the first time I found out about it was in 4 this courtroom and you, too, there are people out there trying 5 to find nuclear material to use in a "terrorist attack," and 6 by the way -- 7 THE COURT: What is going to happen? Tell me what 8 you would argue to the jury should happen when any such 9 intelligence information is gathered? Understand, I have a 10 vivid recollection. It wasn't in this courtroom. It was two 11 floors below. The jury was about to deliberate in a 12 waterfront organized crime case, and the Chief Judge burst in 13 and said, there is a bomb threat, everybody leave, which we 14 did. It became the subject of argument the following day. 15 But the number of threats one receives are very great 16 and the greater the disruption which will occur by virtue of 17 the threats, the more incentive there is for the making of 18 threats. 19 MR. BAUGH: Your Honor. 20 THE COURT: I take it this is something, you know, at 21 one point the point was made that it's the government's fault 22 that I wasn't caught sooner, before I could have committed 23 these crimes, and, you know, we don't really pay too much 24 attention to that type of argument. 25 MR. BAUGH: Your Honor, that's three questions. The SOUTHERN DISTRICT REPORTERS (212) 805-0300 3537 13T1BIN1 1 last one I'll answer first. The school yard mentality of 2 you're another one, or you did it to me first, I don't think 3 the jury would go with that. However, the answer to your 4 question is, you asked me what should be done when information 5 concerning terrorist threat -- 6 THE COURT: Let me modify my question. What is the 7 relevance in this case to the culpability of the defendant -- 8 MR. BAUGH: It's not culpability, your Honor. 9 THE COURT: -- to the appropriateness of a death 10 penalty in this case that no warning were given to Kenyans? 11 MR. BAUGH: Again, your Honor, you can criticize me 12 and ask again if you want to. I'll answer your question with 13 a question. 14 Two points. One is in making that determination of 15 what should be done with that information, does the person 16 making the determination have to weigh in their own mind the 17 potential impact of that destruction on innocents in making 18 their decision? And the answer is yes. So, therefore, if I 19 say in my own mind I think the risk is worth it, does that 20 impact on an assertion that my client has shown disregard for 21 human life? 22 By example again, if this Court, not as a robed 23 federal judge, receives information that there is an airplane 24 coming at the City of New York, there are 213 innocents aboard 25 and a number of terrorists, and on board is a nuke device, and SOUTHERN DISTRICT REPORTERS (212) 805-0300 3538 13T1BIN1 1 they're going to crash it into New York, and they're going to 2 kill a million people, do you risk the death of those 213 or 3 is that reckless disregard? 4 I am saying, your Honor, that the United States has 5 alleged that my client is showing reckless disregard. I am 6 saying that reckless disregard for innocents in this area is 7 as routine, as everyday as water. 8 THE COURT: Reckless disregard. You are equating 9 reckless disregard -- 10 MR. BAUGH: I'm equating disregard. 11 THE COURT: -- to the blowing up of the embassy on a 12 main thoroughfare in Nairobi to the failure to warn of a 13 rather amorphous threat? 14 MR. BAUGH: Excuse me, your Honor. Wait. First, a 15 rather amorphous -- and informant who was paid nine hundred 16 grand -- 17 THE COURT: Before you answer that -- 18 MR. BAUGH: Okay. 19 THE COURT: -- tell me what should have happened? 20 Should the embassy have been cordoned off? Should a lot of 21 those victims -- we had the woman who was just on the bus who 22 was going by. Should the buses have been diverted? Should 23 pedestrians not have been permitted in front of the embassy? 24 MR. BAUGH: Your Honor, I will answer that question. 25 What's going to happen is this -- what ought to happen? We SOUTHERN DISTRICT REPORTERS (212) 805-0300 3539 13T1BIN1 1 should stop killing each other. We should stop that. That's 2 what we should do. And believe me, that's not a flip answer. 3 But, more importantly, every time you make a decision 4 that could possibly risk the lives of "innocents," that is an 5 issue that the jury should consider in determining whether or 6 not that aggravator justified this man's dying, period. Yes, 7 it should. I'm not talking about justification. I'm not 8 talking about motivation. I'm talking about attacking the 9 validity and weight to be given the aggravator in the weighing 10 process that is mandated by the statute. I'm talking straight 11 law. I'm not talking, and I agree with you. 12 And some day when this trial is over I hope you and I 13 get a chance to sit down and we can talk about these 14 questions. No, I'm serious. We argued these things over 15 there on John Street. We discussed these things. We very 16 often slide off into what-ifs, and it is, but that's not the 17 issue here. 18 The issue here now is have I met the threshhold under 19 less than 401 to show that I should have access to this 20 information so later you can determine whether or not it's 21 admissible, and I can determine later whether or not I want to 22 implement that tactic, which is permissible and required under 23 McVeigh. And I'm not shorting your question by the way. 24 THE COURT: Excuse me? 25 MR. BAUGH: I'm not ducking out of your question, I SOUTHERN DISTRICT REPORTERS (212) 805-0300 3540 13T1BIN1 1 don't think. I'm not avoiding answering your question. I 2 really think I am answering your question. If I'm not, you 3 can ask it again. But you keep asking three at a time and 4 it's hard to keep track of them. 5 THE COURT: Is there anything that you want to tell 6 me that I've cut you off about? 7 MR. BAUGH: Your Honor -- 8 THE COURT: I have all day. 9 MR. BAUGH: No, your Honor. I want you to know that 10 you know if I thought were you cutting me off, I'd tell you 11 and I do not believe, in fact, I believe you were honestly -- 12 I'm not going to say that because people will say I'm getting 13 lax in my old age -- but I believe you are trying to determine 14 and I will tell the Court without slighting you, that the 15 problem is looking at what McVeigh does and not looking at 16 what McVeigh stops short of doing, and the fact that if you go 17 back to Gregg and Forman and the cases that led to the federal 18 death penalty statute, and you review the phases, that what we 19 are seeking to do here, which what Mr. McVeigh's counsel 20 should have done is challenged the validity of the aggravator 21 and weakened it's impact. I will also close by saying -- 22 THE COURT: Before you close. 23 MR. BAUGH: Yes, sir. 24 THE COURT: Bin Laden was asked in the interview 25 which is in evidence -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3541 13T1BIN1 1 MR. BAUGH: One of the many, yes. 2 THE COURT: -- what would be required to end the 3 terrorist activity. And his reply was: The withdrawal of all 4 American forces from the Arabian peninsula. When you say, the 5 answer is the to stop the killing, to what extent, if any, do 6 you think you are entitled to argue to the jury that error in 7 American foreign policy is a relevant consideration in 8 determining the appropriateness of the death penalty here? 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 3542 13tlbin2 1 MR. BAUGH: I'm going to make a deliberate effort to 2 duck your question by answering it this way. The question is 3 not, now am I entitled to argue? The question now is, am I 4 entitled to have access to the information to determine 5 whether or not I have a valid argument and come to this Court 6 and prove the admissibility of the standard under 401? 7 Now, if you want me to go farther than that, I will, 8 but I would submit that would be the first part. And in 9 response to that, if a given fact in support of an aggravator 10 becomes more and more common in a given area or in a given 11 offense, does that, could that have the potential to lessen 12 the impact of it? And the answer must be a resounding yes, 13 and -- 14 THE COURT: I know I'm interrupting you. 15 MR. BAUGH: Yes, sir. 16 THE COURT: Again you are arguing that the prevalence 17 of terrorist acts lessens their significance for purposes of 18 the death penalty, and that strikes me as being a very tenuous 19 argument. 20 MR. BAUGH: Your Honor, it is very hard -- well, the 21 Court might view it as a tenuous argument. However, first, 22 the Court uses the word "terrorism" a lot and the government 23 does, too. And the government does have a definition of 24 "terrorism" and I think it's a pretty good definition. 25 THE COURT: Tell me what word you would rather have SOUTHERN DISTRICT REPORTERS (212) 805-0300 3543 13tlbin2 1 me use. 2 MR. BAUGH: What word I would rather use is "warfare" 3 between established states and non-established states. That's 4 what it is. 5 I can tell the Court from my ROTC training, generally 6 recognized there are two types of bombings, strategic and 7 tactical. Strategic is a wiping out of facilities, wiping out 8 petroleum facilities, for example. Tactical are destroying 9 its troop assets, its tank farm, its aircraft. 10 Whenever you drop bombs with the intention to coerce 11 the people into trying to stop a given course of action, 12 which, by the way, is the definition given in Title 18, 13 whenever you try to coerce a political result by bombing and 14 killing people, that is classified under the federal code as 15 terrorism. 16 Unfortunately, we do it, they do it, everybody does 17 it. We all attempt to coerce political results through the 18 use of force and the destruction and death of innocents. 19 THE COURT: But stating the equation that way -- 20 let's talk about McVeigh -- puts McVeigh on the par with 21 United States law enforcement; would put any terrorist -- 22 I'm using terrorism. 23 MR. BAUGH: Yes, sir, and I'm not finished. I 24 understand. 25 THE COURT: -- as for these purposes, as use of SOUTHERN DISTRICT REPORTERS (212) 805-0300 3544 13tlbin2 1 instruments of mass destruction -- 2 MR. BAUGH: Yes, sir. 3 THE COURT: -- against targets, a large component of 4 which are civilian innocents, for purposes of making some 5 political point or applying some coercion. 6 And it seems to me that your argument, when you 7 analogize that the warfare, etc., is to say that everybody who 8 is capable of manufacturing instruments of mass destruction -- 9 and the state-of-the-art now makes that quite easy for people 10 to do -- is on the same par as the government because you are 11 dealing with warfare between the two. 12 MR. BAUGH: I am hesitant to answer this, but I think 13 it's important that you understand my perspective for my 14 argument. 15 No, your Honor, I'm not saying that. I'm saying that 16 that man over there is a person accused under the laws of the 17 United States and he has been entitled to certain 18 Constitutional protections, and under my oath and your oath, 19 our sole purpose in being here is to make sure that those 20 protections continue. 21 THE COURT: I have no quarrel with that at all. 22 MR. BAUGH: Notice, however, that we are not charged 23 when we took our oaths, we don't take an oath to a flag or 24 even to a government, we take an oath to a philosophy that 25 protects him. If we were on the street, my answer might be SOUTHERN DISTRICT REPORTERS (212) 805-0300 3545 13tlbin2 1 different, but in here, in front of you, the only issue is 2 under that Constitution, does he have a right to look under 3 these records to determine if there is evidence there; and, 4 number two, if we find it, and I know we will -- 5 THE COURT: Evidence that the United States was 6 engaged in warfare against Iraq; evidence that the United 7 States has sought to impose sanctions which have caused great 8 hardships, evidence that the United States sought to -- 9 MR. BAUGH: I can tell from the question -- 10 THE COURT: Please, please. I have the right to 11 interrupt you. You don't. 12 MR. BAUGH: Yes, sir. 13 THE COURT: It's not a level playing field. 14 MR. BAUGH: Another myth shattered. 15 THE COURT: -- that the United States sought military 16 retaliation. 17 You can equate those two? You can equate an 18 individual bombing to the governmental responses? 19 MR. BAUGH: Your Honor, that's not the issue. If you 20 want to ask me outside, I'll say coming from a country that 21 was born of revolution, you bet I can. However, that's not 22 the question. 23 The question is, whether or not the jury could, 24 listening to -- that's the next question. The first question 25 is whether or not evidence of this could lead to admissible SOUTHERN DISTRICT REPORTERS (212) 805-0300 3546 13tlbin2 1 evidence under a 401 standard which could compel a jury or 2 even influence a jury to lessen the impact of the aggravators 3 that are alleged by the United States in its death notice. 4 That's the sole question. 5 THE COURT: This says the quantity, the cost, the 6 impact. 7 MR. BAUGH: Cost. 8 THE COURT: Oh, yes, you ask for the cost. Your 9 subpoena asked what has been the cost to the United States. 10 MR. BAUGH: Oh, yes. I'll tell you, you want me to 11 go to the cost? I tell you why -- 12 THE COURT: Let me -- 13 MR. BAUGH: I'm sorry. I'm trying to keep track. 14 THE COURT: Finish your thought and then let's look 15 at the specific subpoenas and the specific information that 16 you say you wish, and let's try to then have you tell me again 17 why you think it's appropriate, recognizing the threshold that 18 you have to surmount is very, very low. 19 MR. BAUGH: I will abandon my answer because you have 20 abandoned your question. 21 THE COURT: All right. 22 MR. BAUGH: We will move on to the other items. 23 THE COURT: Let's look at what you have asked of the 24 United States Central Command. 25 MR. BAUGH: Yes, sir, I have the list before me. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3547 13tlbin2 1 THE COURT: First thing, "a list of all Iraqi targets 2 struck by the United States and ally" -- let's assume that's 3 to be "allied forces since the conclusion of the Gulf War and 4 the date of each strike, either by aircraft, manned or 5 unmanned, the locations attacked, including the government to 6 the geographic locations, using the city name or region of the 7 Country of Iraq, if appropriate, and the nature or type of 8 target, i.e., water treatment facility, communication, 9 electrical grid or radar station." 10 MR. BAUGH: Yes, sir. Okay. 11 THE COURT: Yes. You need all of that for these 12 purposes? 13 MR. BAUGH: Without giving the government a peek at 14 everything, but just enough to meet my burden, I would submit, 15 your Honor, that if the United States -- and first, your 16 Honor, these things exist because there are pre-strike and 17 post-strike photos of every air strike. That is a matter of 18 routine. So I know it exists. 19 THE COURT: Are there post? 20 MR. BAUGH: There's pre-strike and post-strike 21 damage. 22 THE COURT: We have not addressed from the government 23 the extent to which this is classified information, and I 24 assume we will. We've been trying to kind of deal with this 25 apart from that, but -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3548 13tlbin2 1 MR. BAUGH: First, I want to answer the classified 2 information. Can I answer that one first? 3 THE COURT: Yes, and when you answer that would you 4 also answer -- you're making a very broad philosophical-type 5 argument which, although you have worded it several times, you 6 probably best expressed it when you said this is warfare. 7 Even if one were to assume, arguendo, that you are entitled to 8 show that a state of warfare exists, is it necessary or 9 relevant to that argument? That argument you can make based 10 on the information that you get from your other subpoenas, to 11 which the government has not objected, to know in this detail. 12 MR. BAUGH: First, your Honor, in answer to your 13 question, I'm sure the Iraqis know where there have been 14 bombs, so I don't think it's a security issue. They get 15 bombed, I guess they know it. So the only people who don't 16 know it are you and me. The Americans know -- the American 17 Air Force knows and the Iraqis know. 18 THE COURT: And the nature or type of target? 19 MR. BAUGH: They know it, too. 20 THE COURT: They know if the targets were missed? 21 MR. BAUGH: Excuse me? 22 THE COURT: We know that happens with some frequency. 23 MR. BAUGH: I'm assuming they don't miss that much, 24 but that could be an error on my part. By getting this 25 information -- SOUTHERN DISTRICT REPORTERS (212) 805-0300 3549 13tlbin2 1 THE COURT: And you talk about "representative" -- I 2 don't know what that means -- "pre-strike photographs and 3 other forms of visual imagery, including the proximity of the 4 target area to homes, other residences and non-military 5 strictures and facilities" [sic]. 6 MR. BAUGH: By "representative," I don't mean -- you 7 don't have to give me all of them, and by "visual imagery," I 8 include infrared or digitalized inventory that doesn't include 9 photographs. 10 THE COURT: "And inventory and list of all weapons 11 expended during each of the strikes and attacks listed above." 12 Do you think that is necessary for your argument, or 13 do you think that might create some -- 14 MR. BAUGH: Would the use of a fuel air 750-pound 15 weapon against a small structure increase the likelihood of -- 16 and I hate to use this term -- collateral damage? And the 17 answer is yes. So, therefore, if they are using fuel air or 18 if they are using solid or submunitions, that could determine 19 whether or not they have increased a certain recklessness or 20 concern about innocents. 21 THE COURT: All right, maybe I should hear the 22 government. 23 Before I hear from the government, does anybody else 24 want to be heard on these issues? 25 MR. RUHNKE: No, your honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3550 13tlbin2 1 THE COURT: Mr. Ruhnke, let me address a question to 2 you. Mr. Baugh correctly points out that the issue before me 3 now is not admissibility, and we could let this play its 4 course. Perhaps that would be the most prudent thing to do, 5 but you know that we will be spending vast amounts of time on 6 objections made to these opinions, and I'm sure that the 7 communications media, the subpoenas, I think every network 8 will be in with motions to quash. 9 And so I somehow have the impression that counsel 10 feel pressed, so that if there is a way where, preserving 11 everyone's rights, we can more quickly get to the quick, it 12 might be useful. Whether it's one trial or two really doesn't 13 matter. If there are two trials, I understand it is the wish 14 of the defendants and their clients -- your client -- that 15 there be a second trial. 16 MR. RUHNKE: Yes, your Honor. 17 THE COURT: And the same jury will have heard all of 18 this. Do you have any views which you wish to express as to 19 these issues being presented to the jury? 20 MR. RUHNKE: Your Honor, it is not our present 21 intention, nor do I perceive it to become our future 22 intention, to offer this kind of defense or this kind of 23 mitigation in our case. We have different clients who come 24 from different circumstances, etc. I do not disrespect what 25 Mr. Baugh is doing, it's just a different set of SOUTHERN DISTRICT REPORTERS (212) 805-0300 3551 13tlbin2 1 circumstances, different clients. 2 I join him on the point that simply this issue is 3 whether a subpoena is likely to produce evidence that may be 4 relevant to penalty, but we do not intend to issue a similar 5 subpoena on behalf of our client or similar class of 6 subpoenas. 7 MR. FITZGERALD: Your Honor, what I would point out 8 is if you look at the statute concerning the penalty phase, 9 3592, two things that I would emphasize is that 3592(A)(8), 10 when it discusses what may be offered in terms of mitigating 11 factors, describe the factors as "factors in the defendant's 12 background, record or character, or any other circumstance of 13 the offense that mitigate against imposition of death 14 sentence," and the way I understand Mr. Baugh's argument, he 15 seems to construe "circumstance" of the world. Once we go 16 down a road of -- 17 THE COURT: What does "any other circumstance of the 18 offense," what -- that's a very inclusive term, isn't it? 19 MR. FITZGERALD: It is, your Honor, but there is a 20 limit. "Circumstance of the offense" concerns a plot to bomb 21 embassies in Nairobi. It does not mean that we try before the 22 jury, where the statute still provides that the evidence is 23 excluded if the probative value is outweighed by a danger of 24 unfair prejudice and confusion to the issues, that we try 25 world history. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3552 13tlbin2 1 Do we try the U.S. bombing of Iraq? Do we then prove 2 up the response of the Iraqi invasion of Kuwait, invasion of 3 the Kurds? Do we counterbalance that with whether the U.S. 4 did become involved in Serbia and Bosnia? Do we go back to 5 World War II? Where do we stop trying warfare? This is not 6 warfare. This is terrorism. This is not conduct of lawful 7 authority. 8 It seems to me that to the extent it's relevant to 9 discuss Mr. al-'Owhali's motivation, he has that information. 10 He knows what he thought. He has Mr. Bin Laden's statements. 11 And if we focus on the practical, when we look at the 12 airplanes in Saudi Arabia, we all know there are airplanes 13 there. Whether there is hundreds, or 1,000 or 10,000 is not 14 relevant right now if Mr. al-'Owhali had the belief that they 15 were there. That fact we put before the jury. 16 But to go down a path where we are rummaging upside 17 down all over the government to get discovery of something of 18 which the relevant material he already knows, he knows what he 19 believes, he knows what he's read, he knows what he's been 20 influenced by, and that could be put before the jury. 21 The relevance in McVeigh is a very analogous 22 circumstance. They also addressed the issue of what evidence 23 the defendant might offer in opposition to evidence of an 24 aggravated factor, but it does not say that I can try world 25 history. This is an offense. His background should be before SOUTHERN DISTRICT REPORTERS (212) 805-0300 3553 13tlbin2 1 the jury, his record, his history, and the circumstances of 2 the offense. 3 THE COURT: Mr. Baugh argues that the government is 4 going to assert a lack of remorse as a ground for imposition 5 of the death penalty and argues that to deal with the issue of 6 lack of remorse, which is as of the time the jury speaks, 7 involves consideration of events subsequent to the bombing. 8 What is your response to that? 9 MR. FITZGERALD: And to the extent that his own lack 10 of remorse, his mind-set is influenced by what he knows has 11 happened after the bombing, he has that information. If, for 12 example, he -- it doesn't matter whether there are 12 13 airplanes or 2,000 in Saudi Arabia as of today, it's his 14 belief. I don't think we need to go out and gather 15 information he's unaware of, hand it to him and then have him 16 say, now I'm truly not remorseful because I've learned more. 17 If he believes that there are planes in Saudi Arabia 18 and they have not left, and that's true, he has that 19 information. He knows that. If he has a belief as to a 20 number, he has that. Whether it's accurate or not is 21 irrelevant. His lack of remorse comes from what his 22 understanding of the facts are, and he knows that. 23 And the lack of remorse is often in the context of 24 future dangerousness in the case, but I don't think we have to 25 get past his lack of remorse. He knows what is influencing SOUTHERN DISTRICT REPORTERS (212) 805-0300 3554 13tlbin2 1 his own belief that he is not sorry for what he did. 2 THE COURT: I'm going to ask, Mr. Baugh, that you 3 submit another set of subpoenas, because even if one accepts 4 your contentions, you a number of times said to the Court, you 5 know, we know these documents exist because we have them 6 already. 7 MR. BAUGH: We have indications of them. 8 THE COURT: It seems to me that, in all respect, that 9 insofar as the military operations are concerned, that there's 10 really very little you need to make your argument. You don't 11 need the minutia. Whether the cost was X billion dollars or Y 12 billion dollars is really not going to be relevant, and the 13 number of aircraft and the number of air carriers and what it 14 cost really is really not necessary. It will simply generate 15 a tremendous amount of good faith litigation on both sides as 16 to whether that information is classified or is not 17 classified. 18 With respect to the subpoenas directed to the news 19 agencies, I will sign those. They have not been reluctant to 20 challenge when they think it's appropriate. 21 MR. BAUGH: Your Honor, I would like you to 22 reconsider your ruling for these grounds. 23 THE COURT: Yes. 24 MR. BAUGH: First, the United States just stood here 25 and, in response to my requests, cited 3592(a)(8), talking SOUTHERN DISTRICT REPORTERS (212) 805-0300 3555 13tlbin2 1 about what can be offered in mitigation. 2 THE COURT: Yes. 3 MR. BAUGH: We're not talking about mitigation, we're 4 talking about negating aggravator. Secondly, the Court says 5 that I -- 6 THE COURT: Mr. Baugh, in all respect -- 7 MR. BAUGH: Yes, sir. 8 THE COURT: -- do you quarrel with the proposition 9 that it is irrelevant to your argument, the argument which you 10 would propose to make, what the exact cost was? And you know 11 you're going to get an answer from the Department of Defense, 12 which will, of course, object, but then say, in order to come 13 up with such a compilation, we're going to need, you know, six 14 months. 15 MR. BAUGH: The answer to that, if I might, first, I 16 agree with you that I do not need that information to make an 17 argument. I would submit I need that information to win the 18 argument. And the purpose is not to make the argument, it is 19 to keep him from dying. And so -- 20 THE COURT: I'm aware that this is a capital case. 21 Were this not a capital case -- 22 MR. BAUGH: We wouldn't be having this argument. I 23 would be home. 24 THE COURT: This would have ended much earlier, 25 right. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3556 13tlbin2 1 MR. BAUGH: Is that a motion? Because I'll second 2 it. 3 THE COURT: No. I don't have to prepare a defense 4 case. I have lots of time and I've got a calendar which, you 5 are aware, is virtually exclusively directed to this case. 6 But I don't know how much time you have to spend arguing about 7 the estimated cost in United States dollars of air strikes in 8 Iraq since the Gulf War cease fire, including weapons cost, 9 aircraft fuel and support services for air strikes, including 10 unmanned missile attacks. 11 Now, I know the process of sitting back to prepare a 12 subpoena or request for a bill of particulars or so on in 13 which one create actively engages in the process of thinking, 14 what -- 15 MR. BAUGH: Your Honor -- 16 THE COURT: Let me just finish the sentence. 17 MR. BAUGH: Yes, sir. 18 THE COURT: What possibly could I ask for? 19 Now, if you are telling me that these are the 20 subpoenas and you're not going to change a word of these 21 subpoenas, the task before this Court is very, very easy. Is 22 that what you are telling me? 23 MR. BAUGH: Your Honor, I'm not going to say that, 24 but I will tell the Court this. For the Court to assume that 25 the United States Pentagon has not prepared a budget for this SOUTHERN DISTRICT REPORTERS (212) 805-0300 3557 13tlbin2 1 war -- 2 THE COURT: That is not what you are asking for. 3 MR. BAUGH: I want to know how much money is being 4 spent. 5 THE COURT: Now, a request of the future budget, I'm 6 sure that would be of great interest. 7 MR. BAUGH: I want to go back and look at the past 8 budgets. I don't want their future budget. I'm not asking 9 for it. 10 And your Honor, lastly, you say how much time have I 11 spent? What I'm asking for is burdensome on me and it's 12 burdensome on the government. However, my client -- 13 THE COURT: The argument that you have made this 14 morning -- 15 MR. BAUGH: Yes, sir. 16 THE COURT: -- I'm going to try to state it again, 17 because if I still have it wrong then I would like to have it 18 right -- 19 MR. BAUGH: Yes, sir. 20 THE COURT: -- is that you want to put before the 21 jury evidence that the United States has engaged in types of 22 warfare directed against Iraq; that this warfare included the 23 utilization of weapons of mass destruction; that civilians 24 were killed; that the nature of the targets and the nature of 25 the warfare is such that one could reasonably contemplate that SOUTHERN DISTRICT REPORTERS (212) 805-0300 3558 13tlbin2 1 some civilians would be killed; and that the United States 2 continues to have a military presence in the Arabian 3 peninsula; and that the United States continues to impose 4 sanctions against Iraq which cause hardship, and, you say, the 5 totality of that is such that the jury should view the 6 aggravating factor of use of a weapon of mass destruction 7 causing the death of civilians in the context of a warfare, a 8 warfare between a governmental and a quasi governmental 9 agency. 10 Is that a fair statement of what your argument is? 11 MR. BAUGH: No, sir. 12 THE COURT: No? 13 MR. BAUGH: What I'm saying is that I have met the 14 threshold of looking to determine whether or not that issue 15 can be successfully argued. No, I am not arguing 16 admissibility. I am not arguing that I'm going to present 17 this defense. I am saying that under the rules, I have the 18 right to look -- 19 THE COURT: But, you know, I also have some 20 obligations. 21 MR. BAUGH: Yes, sir. 22 THE COURT: An obligation not to impose on reasonably 23 high-level governmental officials the burden of complying with 24 a subpoena in this detail, most of which, it seems to me, is 25 unnecessary for the purposes of the argument you are SOUTHERN DISTRICT REPORTERS (212) 805-0300 3559 13tlbin2 1 considering making. 2 MR. BAUGH: Thank you, your Honor. 3 THE COURT: Okay. 4 MR. BAUGH: I would -- 5 THE COURT: Will you do that? 6 MR. BAUGH: Yes, sir. Reserving my objection, of 7 course. Yes, sir, I will. 8 THE COURT: And when will you have that to me? 9 MR. BAUGH: I can't do it tomorrow. My secretary 10 lost her grandmother, but I will it by Tuesday. 11 THE COURT: All right. I will sign the subpoenas 12 directed to the photographic department of the -- I don't know 13 what. The subpoena directed to Ms. Kelly? I'm not familiar 14 with the name. 15 MR. BAUGH: It's an organization in Chicago called 16 Voices of the Wilderness. 17 MR. FITZGERALD: Your Honor, just for the record, I 18 recognize there were subpoenas which we were not provided 19 copies of and there are some that we were. Whatever the 20 photographic department is, we were not given a copy of that, 21 just so the record is clear. 22 MR. BAUGH: Oh, yes, that's true. 23 THE COURT: That's true? 24 MR. BAUGH: That's true. 25 THE COURT: I think you were given copies only of the SOUTHERN DISTRICT REPORTERS (212) 805-0300 3560 13tlbin2 1 subpoenas to governmental entities. 2 MR. FITZGERALD: Yes, the Department of Defense, 3 former Secretary of State and the Bureau of Prisons were the 4 subpoenas we received. And I understand the Bureau of Prisons 5 is reviewing the subpoenas to get back to us, as they said in 6 the letter. 7 THE COURT: All right. 8 MR. COHN: That's mine, your Honor. The government 9 has no objection to it. 10 MR. FITZGERALD: That's correct, Judge. That's an 11 update of an old subpoena for Mr. Al-'Owhali's prison records. 12 THE COURT: I am not signing the subpoenas directed 13 to present or ex government officials. That includes 14 Madeleine Albright. 15 On another topic. 16 MR. BAUGH: Your Honor, can my client be excused at 17 this time? I have a lot of work to do on these subpoenas. 18 THE COURT: I think we're almost finished. It 19 depends on Mr. Submit. 20 Mr. Schmidt, we had some colloquy on Tuesday when 21 talking about a timetable and you said it was all subject to 22 the status of discovery requests that you had made which had 23 not been complied with, and I said I don't want to make any 24 statements or commitments to the jury with respect to 25 timetable and then discover that there was going to be an SOUTHERN DISTRICT REPORTERS (212) 805-0300 3561 13tlbin2 1 application for a continuance and that I was available, and 2 what is the story? 3 MR. SCHMIDT: Your Honor, we had further discussions 4 with the government yesterday. As to some of the material 5 concerning statements made by others, whether exculpatory or 6 806 or impeachment, the government told me yesterday that they 7 have been reviewing the documents and they are going to make 8 them available as soon as they complete their review. I'm not 9 sure exactly when that is. 10 The reason why it took them until now, the government 11 obviously have been pressing their case and they now seem to 12 be working on it. I don't have an answer when they are going 13 to have that material turned over to us. So maybe they can 14 answer that question. 15 MR. FITZGERALD: Your Honor, as to those materials to 16 which he is entitled, we are reviewing them to determine what 17 he is entitled to. We intend to have them available -- today 18 is Thursday -- a week from tomorrow. We have to focus on the 19 April 3rd submission, the bifurcation motion for Mr. Ruhnke, 20 and then the 806 demands and the demands for review of any 21 materials that may exist that may contain Brady with regard to 22 his client. 23 MR. SCHMIDT: As to receipt of it, if the material 24 itself is self-inclusive and you decide that we are free to 25 use it and we can either get a stipulation that the witness is SOUTHERN DISTRICT REPORTERS (212) 805-0300 3562 13tlbin2 1 available, that will not present any problems. If the 2 material is something that requires us to go another step, 3 which we don't know now, it may or may not present a time 4 problem. I can't say. 5 We're still working on the last major piece, which is 6 a stipulation concerning Somalia. We hit some roadblocks. We 7 are hoping to have further discussions, I guess tomorrow, and 8 hope to resolve that. If we don't resolve that, there is the 9 order of the Court relating to discovery material that the 10 government is supposed to turn over. We'll have to deal with 11 that issue if we can't reach a stipulation. 12 I don't know what to say to your Honor as to how long 13 the government will take to turn over that material if they 14 are required to. 15 THE COURT: All right. Just one other unrelated 16 matter -- 17 MR. SCHMIDT: One other matter, your Honor. There is 18 apparently ex parte discussions that the government wants to 19 have with your Honor concerning Sudan, which we'll want to 20 deal with that next week as well. We can do that in chambers 21 ex parte one after the other, I guess, and make arrangements 22 for that. 23 THE COURT: I just want to present one other thing 24 which deals with the defense case on behalf of Odeh and the 25 question of permissible cross-examination of Agent Gaudin, and SOUTHERN DISTRICT REPORTERS (212) 805-0300 3563 13tlbin2 1 that's a matter which I want to address well in advance of 2 that matter being before the jury. And I'm sure that's in 3 everyone's best interests, so that sometime next week I would 4 like to take that issue up with counsel. 5 You want to see me about some ex parte matter now? 6 MR. WILFORD: Your Honor, not an ex parte matter, but 7 Mr. Herman has a matter. 8 MR. HERMAN: Can we see you in the robing room about 9 a CIPA matter having to do with Mr. Odeh? 10 THE COURT: About a CIPA matter? 11 MR. HERMAN: With the government. 12 THE COURT: CIPA. 13 MR. RUHNKE: Your Honor, before they do that, one 14 housekeeping -- I don't think we're involved in the CIPA 15 argument. Just one housekeeping matter. Mr. Fitzgerald has 16 told me that they will respond to the motion for separate 17 penalty phases by next Friday. We would like until the 18 following Friday to reply to that, and that's okay with the 19 government. 20 THE COURT: All right. 21 MR. RUHNKE: Thank you. 22 THE COURT: Yes. All right. We'll adjourn, then, 23 except for the ex parte matter, until Monday morning. 24 MR. HERMAN: Judge, Mr. Odeh should be permitted to 25 stay to review certain evidence. SOUTHERN DISTRICT REPORTERS (212) 805-0300 3564 13tlbin2 1 THE COURT: All right. 2 (Conference in the robing room filed under seal) 3 (Adjourned to April 2, 2001, at 10:00 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300
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