2 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 38 of the trial, May 2, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
5391
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 May 2, 2001
10:00 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
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23
24
25
5392
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
17
18
19
20
21
22
23
24
25
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1 (Trial resumed, jury not present)
2 THE COURT: Everyone here? Any reason not to bring
3 in the jury? Please tell them to bring the jury in.
4 MR. RICCO: Your Honor, at the end of all the
5 evidence in the case the defense neglected to formally make
6 the Rule 29 motions and we would like to do it at the end of
7 the day, just so the record is complete.
8 MR. DRATEL: Yes, we join that.
9 (Jury present)
10 THE COURT: Good morning. Mr. Karas, as soon as the
11 jury is seated you may begin.
12 MR. KARAS: Thank you, your Honor. Good morning
13 again.
14 What I would like to do this morning is take up three
15 items from yesterday that I would like to clarify. The first,
16 we showed you a letter that made clear that Ibrahim Eidarous
17 had been put in charge of the London cell, the EIJ group. We
18 had showed you 1520 and that was not the document to show you.
19 The document was 1516-T. This is one of the documents that
20 was found in the trunk of Eidarous's car.
21 What you see there at the top, dated June 28, 1998,
22 you may remember that in October of 1997, Eidarous had written
23 Zawahiri, the leader of the EIJ, please tell the brothers in
24 London who is in charge. In this letter Eidarous complies,
25 and he says, dear brothers, number 1, brother Ibrahim is the
5394
1 one in charge in London, and the brothers must listen and obey
2 him. Any brother who doesn't act accordingly will be subject
3 to having the group take a stand against him as it happened to
4 other brothers before, which warning will be the last one
5 concerning this issue.
6 So you see that Zawahiri makes clear that Eidarous is
7 in charge, and Eidarous is the one who will be involved in
8 helping to disseminate the claims for responsibility for the
9 bombings from London.
10 The second thing you see there is that there is an
11 element of discipline within EIJ, and you saw it with respect
12 to Al Qaeda and their concerns regarding Abu Fadhl al Makkee
13 and their concern that he was cooperating with the Americans.
14 So that's the first item from yesterday.
15 The second item from yesterday concerned two
16 exhibits, Government's Exhibit 310-74A, and this is one of the
17 documents that is found on the disks found in El Hage's house
18 during the search in August of 1997 that Agent Coleman
19 testified about. We went through this document yesterday, and
20 one of the things that I had mentioned, I read you a quote
21 regarding Somalia was not being limited to merely the training
22 of groups who want to fight and the fight is over and the
23 quote went on, we are not a relief organization. That quote I
24 attributed to Government's Exhibit 710-96T. 710-96T are the
25 tape letters that were found in Odeh's house. That
5395
1 attribution was incorrect, ladies and gentlemen. That quote
2 that I read you was from the disk document 310-74AT. Just so
3 we are clear, the quote that I read, our goal in Somalia was
4 not limited to merely the training of groups who want to fight
5 and the cause is over, however, our goals are bigger than
6 that. We are not a relief organization which comes every now
7 and then to assist the victims and leave. That quote is from
8 310-74AT, the document that is taken from run one of the disks
9 found in El Hage's house, not the tape letter from the
10 defendant Odeh.
11 The third matter was the one we ended on yesterday,
12 which was the Khalid Saleh Muslim Bin Rasheed passport that
13 the defendant Mohamed Al-'Owhali had.
14 MR. COHN: Excuse me, Mr. Karas. I am sorry. We are
15 having difficulty hearing you.
16 MR. KARAS: OK. System on?
17 MR. COHN: Doesn't seem to be.
18 MR. KARAS: I will try to speak up.
19 Yesterday you I told you if you look in the passport
20 you will see the entries for Al-'Owhali's arrival in Pakistan
21 on the 18th of May 1998, and it is in there and displayed on
22 your screen.
23 The other thing that I would remind you, during his
24 statement to Agent Gaudin the defendant Al-'Owhali himself
25 told Agent Gaudin that he did go back from Yemen to Pakistan,
5396
1 and it was after he got back to Pakistan and then Afghanistan
2 that he first learned of his mission to attack American
3 targets. As Judge Sand instructed you yesterday and during
4 the testimony of the statements given by these defendants, and
5 as the judge will instruct you at the end of our closing
6 statements, the statements given by the defendants to the
7 agents are only evidence against those defendants. So when
8 Mohamed Al-'Owhali said to Agent Gaudin that he went to
9 Pakistan a few months before the bombing, that statement is
10 admissible only against defendant Mohamed Al-'Owhali. But
11 what you see here is evidence in the passport that also shows
12 that he went to Pakistan on May 18, 1998, just a few months
13 before the bombing.
14 So that is where we left off yesterday, May 18, 1998,
15 about two and a half months before the day of the bombings the
16 next date we get to is May 28, 1998, and that is the day that
17 Usama Bin Laden gives another interview, and this one is to
18 ABC News. By way of stipulation you know that the interview
19 was given on May 28, 1998, in Afghanistan, and you may
20 remember you saw the video and you can see the interview take
21 place in one of the caves, if you would, in Afghanistan where
22 Bin Laden was working, and you saw some of the people around
23 him that had some of the machine guns, and you actually
24 witnessed the interview.
25 You also may remember we talked yesterday about that
5397
1 person Tarik Hamdi to whom the battery pack was sent for the
2 satellite phone, and he was part of the ABC News team that
3 went to Pakistan and he sent the fax saying we're here and
4 everybody is fine. So all that is going on in May 1998.
5 The transcript of the interview is Government's
6 Exhibit 81T, and if we turn to the bottom of the second page
7 of 81T, Bin Laden repeats the fatwah that he gave in February,
8 and he says to the person from ABC News, we do not
9 differentiate between those dressed in military uniforms and
10 civilians. They are all targets in this fatwah, especially
11 since American officials have stated after the Khobar bombing
12 that there was a lack of information and all American
13 civilians were asked to gather information on Muslims and
14 observant Muslim youth and to convey to the security section
15 in the embassy, the fatwah is general and includes all that
16 share or take part in killing of Muslims, assaulting holy
17 places or those who help the Jews occupy Muslim land.
18 Ladies and gentlemen, you know that by May 28, 1998,
19 that the operation in East Africa is under full steam, and Bin
20 Laden, as we now can figure out after the fact, is saying to
21 the American public, everybody is a target, and in particular
22 your embassies are targets because we know that the Americans
23 have invited their civilians to provide information about us
24 to the security section of their embassies.
25 If we go to the fifth page of the transcript, at the
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1 very top once again Bin Laden is blunt. We predict a black
2 day for America and the end of the United States as united
3 states, and will be separate states, and they will retreat
4 from our land and collect the bodies of its sons back to
5 America, Allah willing.
6 Ladies and gentlemen, as we go through these
7 statements that Bin Laden gives, I ask you to bear in mind
8 that on August 250, 1998, 13 days after the embassies were
9 bombed, Agent Miranda told you that he interviewed the
10 defendant Wadih El Hage, and Wadih El Hage told Agent Miranda
11 that Bin Laden would not have carried out the bombings of
12 Nairobi because he was a humanitarian, and that's what the
13 humanitarians said.
14 At the bottom of the page Bin Laden goes on to say,
15 this does not make a difference -- and he is referring to the
16 Saudi government wanting the American military in the gulf --
17 since American oppression, boastfulness and greed still
18 exists. They came by the approval of government. It does not
19 make a difference if the government wants you to stay or leave
20 because you will not leave by their words. You will leave
21 when the youth send you the wooden boxes and the coffins, and
22 you will carry in it the corpses of the American troops and
23 the American civilians. This is when you will leave. The
24 decision-makers beyond taking you out are the Muslim masses in
25 the Muslim world who are defending the Muslim lands, Allah
5399
1 willing, we will win. That is what the humanitarian warns the
2 United States.
3 On the very next page, page 6, Bin Laden next talks
4 about the situation in Somalia, and what he says at the very
5 top, after Allah honored us with victory in Afghanistan and
6 justice prevailed and the killings of those who slaughtered
7 millions of Muslims in the Muslim republics, it cleared from
8 the Muslim minds the myth of superpowers. The youth ceased
9 from seeing America as a superpower. After leaving
10 Afghanistan they headed for Somalia and prepared for a long
11 battle, thinking that the Americans are like the Russians.
12 But they were surprised when the Americans entered with 30,000
13 troops and collected more troops from the world, 5,000 from
14 Pakistan, 5,000 from India, 5,000 from Bangladesh, and also
15 Egypt, Senegal, and others like Saudi. The youth were
16 surprised at the low morale of the American soldiers and
17 realized more than before that the American soldier is a paper
18 tiger. And after a few blows he ran in defeat, and America
19 forgot all the hoopla and media propaganda after leaving the
20 Gulf War and destroying infrastructure, destroying baby
21 formula factories, all civilian factories bridges and damns
22 that help planting food. America presented itself as the
23 world leader and the leader of the new world order, and after
24 a few blows they forgot about this title and left dragging
25 their corpses and their shameful defeat and stopped using such
5400
1 titles. And the politicians in America learn that this is
2 larger than them and that they were not fit for it. When this
3 took place I was in Sudan and this great defeat against
4 America pleased me very much, the way it pleased all Muslims.
5 Allah willing, the next victory will be in Hijjaz and Najd.
6 Saudi Arabia will make the Americans forget the horrors of the
7 Vietnam and Beirut. There you see Bin Laden talking about the
8 work of these people, the Mujahideen who you know from the
9 other evidence are connected to Al Qaeda and Bin Laden's
10 group, saying that they were in Somalia. But again, he is not
11 saying they were the ones who fired the rockets and shot the
12 guns, but he is accepting responsibility on behalf of the
13 Mujahideen of the youth who were there participating in
14 Somalia.
15 The other thing he is once again saying is that the
16 lesson he learned from Somalia, he believes, is that the
17 Americans will leave if they are attacked. So to him that
18 justifies the attacks against America, because remember, the
19 thing he wants more than anything else is to see the Americans
20 leave Saudi Arabia, and he believes the Americans will leave
21 if they are attacked. So he is predicting a dark day. He is
22 predicting he will send people home in body bags and in
23 coffins. As you know, ladies and gentlemen, his implementers
24 are carrying out that plan as he is giving this interview.
25 Down on the page, Bin Laden makes explicit his
5401
1 definition of who is innocent and who is not, and he explains
2 why it is that even American civilians are not innocent. He
3 is asked explicitly, many Americans believe that fighting army
4 to army like what happened in Afghanistan is heroic for either
5 army, but setting off bombs, killing civilians and incidents
6 like the World Trade Center is terrorism. Bin Laden responds
7 by saying, they don't according to the standards he is making.
8 After our victory in Afghanistan and defeating the Russians,
9 the world media lead by the American media started a campaign
10 against us that is still going on until today. Despite the
11 fact that the Russians left in 1989, almost 10 years ago, they
12 have been carrying out this campaign accusing us of being
13 terrorist. Without any action being taken by the Mujahideen
14 against the real terrorists, the Americans, this on the one
15 hand. On the other hand, American policy does not admit to
16 differentiate between civilians, military, child, human or
17 animal.
18 On the next page, Bin Laden continues. The crusaders
19 continued their slaughter of our mothers and children, and
20 America every time takes a decision to support them and
21 prevent weapons from reaching the Muslims, leaving the Serbian
22 butcher to slaughter Muslims. And then Bin Laden says, you do
23 not have a religion that prevents you from carrying out these
24 actions and therefore you do not have a right to object to
25 like treatment. Every action solicits a reaction. It is a
5402
1 punishment that is equally inflicted. At the same time, our
2 primary target are military and those in its employment. Our
3 religion forbids us to kill innocent children, women who are
4 not combatants. However, women soldiers who place themselves
5 in the battle trenches receive the same treatment as fighting
6 men.
7 Remember what imam Siraj Wahhaj said, no religion
8 kills innocent people. The implicit assumption is that that
9 includes civilians and women and children. But Bin Laden says
10 that he thinks there is a double standard and he thinks that
11 because the American people are responsible for what he
12 considers to be a tax on civilians, and he gives the example,
13 among others, of Hiroshima and Nagasaki, that all American
14 civilians are not innocent. They are in his eyes combatants.
15 They are in his eyes legitimate targets.
16 Again you know that while he is giving this
17 statement, the people in his organization, the people who are
18 part of the conspiracy charged in Count 1 are getting the bomb
19 factories ready, they are getting the bomb trucks, and they
20 are going to carry out the attack on people that they don't
21 consider to be innocent, people they consider to be legitimate
22 targets because of their nationality.
23 Bin Laden says down at the bottom, the very bottom of
24 page 7, the presence of Americans in the land of al Haramain,
25 Saudi Arabia, supports the Jews in the prophet's Holy Land,
5403
1 peace be upon him, and gives him a safe back. The American
2 government at the time there are millions of Americans living
3 on the street and living below the standard of living and in
4 stricken poverty, we find the American government turning
5 towards helping Israel and occupying our land and building
6 settlements in the prophet's Holy Land. The American
7 government is throwing away the lives of Americans in the land
8 of al Haramain and other places for the interests of the Jews.
9 The Jews are a people that Allah cited in his holy book the
10 Koran, a people who didn't abstain from killing God's
11 prophets.
12 Skipping down, he says they believe that all humans
13 are animals to be exploited by them and found that Americans
14 are the best created beings for that use. The American
15 government is driving America to destruction and rational
16 people have no doubt that America will not be a superpower at
17 the turn of the next century.
18 So we it will the American people, and we tell the
19 mothers of soldiers, and American mothers in general, if they
20 value their lives and those of their children to find a
21 nationalistic government that would look after their interests
22 and not the interests of the Jews. The continuation of the
23 repression will bring the fighting to America, like Ramzi
24 Yousef and others. This is my message to the American people
25 to look for a serious government that looks out for their
5404
1 interests and does not attack others, their lands or their
2 money.
3 So now Bin Laden looks into the camera and he says
4 notwithstanding the fact that the religion doesn't allow the
5 killing of women and children, says to the mothers of America.
6 Before he said if you're concerned about your sons, when he
7 was interviewed by CNN. Now he says if you are concerned
8 about your own life in addition to the life of your children,
9 then you will change your government. He says to the American
10 mothers, you are now targets of this fatwah, you are not
11 innocent. In Bin Laden's view he says that American mothers
12 can be attacked. In the very next answer, Bin Laden says the
13 reaction is increasing fast and I am sure of our victory with
14 Allah's help against Americans and the Jews. We see this then
15 in the strength of the reaction, that every day the Americans
16 delay their departure, for every day they delay they will
17 receive a new corpse from Muslim countries to America.
18 And then on page 9 Bin Laden once again brings up the
19 subject of Omar Abdel Rahman, and what he says there, we place
20 total responsibility on the American government for any attack
21 against Muslims and its supportive regimes in our countries
22 against the best interests of the people. We also hold them
23 responsible for its attacks on Islamic symbols, sheik Omar
24 Abdel Rahman, who is considered one of the most prominent
25 Islamic scholars, who Allah gave the courage to speak the
5405
1 truth.
2 You remember what the witness Jamal al-Fadl told you,
3 that later way back when the group learned that Omar Abdel
4 Rahman had been arrested, there were people who wanted to
5 retaliate and some who left because they didn't think the
6 retaliation came soon enough. Here you have Bin Laden
7 confirming what al-Fadl told you. They were very angry and
8 they would take their time to retaliate when they want.
9 Another piece of evidence that you saw during this
10 trial that confirms what Jamal al-Fadl told you, and also what
11 Bin Laden is saying there, is Government's Exhibit 367A. This
12 is a document that was found during the search of Ali
13 Mohamed's house in California. Again, Ali Mohamed is the
14 person who Kherchtou knew as Ali Mohamed al Amriki, the person
15 who conducted the surveillance training, the person who came
16 to Nairobi in late 1993 with Anas al Liby and their photo
17 equipment and the cameras and the computers. What you see
18 here is, this is a letter, and you see it is a reference to
19 the case United States v. Omar Abdel Rahman and it is a
20 discussion of some information that is being provided. Down
21 at the bottom, including a list of unindicted
22 coconspirators -- and the judge gave you an instruction what
23 that means -- is handwritten Haydara. Haydara is one of the
24 nicknames for Ali Mohamed. What he says there, to supervisor,
25 hi, please deliver the five pages to the supervisor by hand.
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1 So Ali Mohamed, one of the people who has worked with some of
2 the people in this conspiracy -- and Haydara is one of the
3 aliases for Ali Mohamed -- he is monitoring what is going on
4 in this case with Omar Abdel Rahman, the same witness that
5 Jamal al-Fadl told you he was concerned about and angry about
6 and the same person Bin Laden just mentioned in the ABC
7 interview. Ali Mohamed, who is there to do the surveillance
8 in 1983, he is sending a document connected to the Omar Abdel
9 Rahman case to the supervisor and he wants it hand-delivered
10 from Haydara in California.
11 One other thing to bear in mind about the ABC
12 interview is that Mohamed Al-'Owhali told Agent Gaudin that he
13 was there when Bin Laden gave his interview, and he was there
14 when Bin Laden made these statements that we just went through
15 about attacking American targets and attacking in particular
16 American civilians.
17 The next event is May 29, the very next day, and this
18 is a document that was read to you during the trial. It is
19 Government's Exhibit 1610-T. This is a document that is found
20 in the residence of Khalid al Fawwaz, one of the three people
21 in London at 94 Dewsbury Road, and this is the document that
22 was titled the endorsement of the nuclear bomb of Islam, and
23 it is a statement by Bin Laden where he says, among other
24 things, it is the duty of the Muslims to prepare as much force
25 possible to terrorize the enemies of God. So the day after
5407
1 Bin Laden predicts a dark day for America and American
2 civilians, Bin Laden endorses a nuclear bomb that he says is
3 needed to terrorize the enemies of God.
4 Next we turn to June 1998, and one of the things that
5 happens during the summer of 1998 is what Mohamed Al-'Owhali
6 told Agent Gaudin, that at some point during the summer he
7 gets instructions to go to Nairobi and he is told that the
8 target will be an American target. We will talk a little bit
9 more about some of the things that Al-'Owhali did before he
10 went to Nairobi.
11 On June 9 the defendant Khalfan Khamis Mohamed
12 purchases the white Suzuki Samurai with the person depicted in
13 Government's Exhibit 124, Fahad Mohamed Ally Masalam. We will
14 call him Fahad Mohamed to make it simple. Government's
15 Exhibit 60 is a stipulation that related to the contract, some
16 of the records found from the Department of Motor Vehicles.
17 You will see Government's Exhibit 1410 is a picture of the
18 white Suzuki that Khalfan Khamis Mohamed purchased.
19 Government's Exhibit 1420 is the contract for the sale. You
20 see at the top there it says 9/6/198. Again, transposing
21 those numbers, it is June 9, 1998. You see there the contract
22 and the buyer listed, K.K. Mohammed, and then one of the
23 witnesses down there at the very bottom is Fahad M. Ally.
24 Government's Exhibit 1461 is the summary chart that relates to
25 the fingerprint testing that was done on the items related to
5408
1 the bombing in Dar es Salaam, and you see down there at the
2 bottom there is a fingerprint on that contract for Fahad
3 Mohamed Ally, and three fingerprints and a palm print from
4 Khalfan Khamis Mohamed.
5 Khalfan Khamis Mohamed told Agent Perkins that the
6 Suzuki was used to transport the components of the bomb, the
7 TNT, the cylinders and so forth, but there is other evidence
8 that tells you that. Amina Rasheed was the person who worked
9 at 15 Amani. She did the cleaning and the cooking. She told
10 you how she saw the person Mohamed and the person she knew as
11 Hussein, and she described Mustafa Fadhl, and where Khalfan
12 Khamis Mohamed lived, and she saw Hussein driving around in
13 the Suzuki. But you also know from Government's Exhibit 1462,
14 second page of 1462. This is a summary chart of the results
15 of the chemical work that was done on the Suzuki, and you see
16 a listing of the swabbings and some of the items that were
17 taken from the Suzuki, and you see on the right-hand side,
18 almost across the board, items testing positive. It is as if
19 someone took the Suzuki and dipped it in TNT. You can see
20 this was the utility vehicle that Khalfan Khamis purchased,
21 that the group used to collect the components for the bomb.
22 Six days later, June 15, 1998, Khalfan Khamis
23 Mohamed, and again Hussein, Mustafa Fadhl, rent the residence
24 at 213 Ilala. You know that a number of ways. First you know
25 from the lease itself. You may remember that Khalfan Khamis
5409
1 Mohamed told Agent Perkins that there was an older skinny
2 gentleman involved in the transaction and you heard from
3 Mohamed Solimani, who told you that he was the broker. What
4 Mohamed Solimani told you was, he remembered Mohamed and
5 Hussein coming to him and they were looking for a place that
6 had high walls and a driveway for a vehicle. He showed them a
7 couple of places that they didn't like and eventually they
8 settled on the place known as 213 Ilala, and Solimani told you
9 about the lease and he said that Khalfan signed it and Hussein
10 signed it. That's Mustafa Fadhl. From Government's Exhibit
11 1461 -- actually, if you want to focus on the bottom -- you
12 see there Khalfan Khamis, and one of the witnesses, Hassan
13 Ali. Solimani told you he saw them sign that lease.
14 Government's Exhibit 461 is the summary chart
15 relating to the fingerprint analysis that was done. You see
16 Khalfan Khamis Mohamed's fingerprint is on the lease,
17 Government's Exhibit 1353.
18 Ladies and gentlemen, this residence is the bomb
19 factory in Dar es Salaam. It is the equivalent to 43 Runda
20 Estates that Harun had rented, where his fingerprints were
21 found, and the place that tested positive for the TNT, PETN,
22 and the aluminum powder. If you look at Government's Exhibit
23 1350A, this is an exterior photograph of 213 Ilala, and it is
24 precisely what the group wanted to build its bomb. It is a
25 high wall, and we will take a look at some of the pictures on
5410
1 the inside, to construct the bomb, bring the bomb there, store
2 it and load up the bomb into the truck.
3 Next, if we look at 1351F, this is along the side of
4 the house. You see the red gate, so we are looking from
5 behind the red gate. You see the wooden frame along the wall
6 opposite the house. You may remember that Khalfan Khamis
7 Mohamed told Agent Perkins that Hussein had built an extra
8 gate, a barrier to shield the bomb from the public's view, and
9 you see the remnants in that picture.
10 Let's look next at 1352, and this is the overhead
11 sketch, if you will, the bird's eye view. You see on the top
12 left there, that orange part marked garbage pit. You remember
13 that the agents described how they went and searched some of
14 the items in the garbage pit, and of course they went around
15 the house. You saw some of the items that they found.
16 Government's Exhibit 1355 is the detonator. Agent West, he
17 was the explosives expert who testified about some of the
18 items in Dar es Salaam. This is the detonator that they found
19 on a window sill at 213 Ilala. There were several detonators
20 that were put in these wooden boxes that the TNT was stored
21 in.
22 Government's Exhibit 1357B is one of the three broom
23 whisks that was found at 213 Ilala, and one of the many items
24 in 213 Ilala that tested positive for explosives.
25 Government's Exhibit 1372 is a burlap bag, and you may
5411
1 remember that Khalfan Khamis Mohamed described how the TNT was
2 stored in what he called a rice bag, something that wouldn't
3 allow one to see inside. This was one of the many items found
4 at 213 Ilala.
5 Government's Exhibit 1358 is a yellow razor found by
6 the sink, and I think you saw some of the photographs of the
7 sink. There is a stipulation that this yellow razor was
8 tested for DNA, and one of the things found on this was a DNA
9 match for Hamdan Khalif Alal. You may remember, and we will
10 discuss this later, that the suicide truck driver in Dar es
11 Salaam was known as Ahmed the German, because of his blond
12 hair. The DNA taken off this razor confirms that this person
13 was from Egypt, and there is a stipulation that that same
14 person called to his family in Egypt on August 6, 1998, the
15 day before the bombing, and wanted the family to assemble the
16 next morning because he was going to tell the family that he
17 was leaving this life.
18 Government's Exhibit 1374 is some rope, some twine.
19 You may remember that Khalfan Khamis Mohamed told Agent
20 Perkins that was one of the ways they secured the oxygen
21 tanks, and you have some exemplars here, Government's Exhibits
22 1165 and 66, and Khalfan Khamis Mohamed described for you tall
23 and short that were used, they used some rope to secure them
24 along the wall of the truck, and you see some of it left over
25 at 213 Ilala. Government's Exhibit 1375 is some wiring left
5412
1 over, and of course Khalfan Khamis Mohamed described that they
2 had wired the bomb, they had to wire the batteries to the back
3 up to the front of the truck so that the suicide driver he
4 knew as Ahmed could detonate the bomb. 1365 is some black
5 tape. Then, I think it is 1376 -- and I would lift it up but
6 I would probably hurt myself -- is this very heavy metal rod.
7 This was found at 213 Ilala. You remember the welder of the
8 truck, Julius Kisingo, who described for you some of the work
9 that he had done, and he specifically remembered that he
10 recognized some of these pellets along the side, and this was
11 some of the work that he had been asked to do on the truck
12 along the side. Precisely what it was he described he had
13 done and the person he identified, by the way, is this person,
14 Sheik Ahmed Salim Swedan, the same person we will talk about
15 in a moment who locked the truck in the Nairobi bombing.
16 Julius Kisingo told you that this person came by and asked him
17 to do some of the welding in the back of the truck, and one of
18 the pieces was later found at 213 Ilala.
19 The other thing that happens during the summer in Dar
20 es Salaam, and again, Amina Rasheed, the person who worked at
21 15 Amani Street, Government's Exhibit 1300, she described
22 meetings that summer involving Ahmed Khalfan, who she knew as
23 Ahmed, and she identified his picture as being the person who
24 lived there, and she said he had his own room and it was
25 locked and she never had access to it, and she described
5413
1 people who came that summer to have meetings. She described
2 this person as being Hussein, and Fahad, the same person that
3 Khalfan Khamis Mohamed bought the Suzuki with, and this being
4 the person, Government's Exhibit 117, who he rented 213 Ilala
5 with. She said Ahmed told her that he was leaving and she
6 last saw him two weeks before the bombing. Then you learned
7 by way of stipulation that there was a search of 15 Amani, and
8 the FBI found another detonator, Government's Exhibit 1305;
9 passport photographs of Ahmed, Government's Exhibit 1306A, a
10 number of passport photographs; and then Government's Exhibit
11 1306E-P, passport photograph of the defendant Khalfan Khamis
12 Mohamed that was found at 15 Amani Street. You know from
13 Government's Exhibit 1461, which again is the summary chart of
14 the fingerprints, that Khalfan Khamis Mohamed's fingerprints
15 are found on two other items that were located at 15 Amani.
16 It was a passport application in the name Zahran Nassor
17 Maulid, and several of his fingerprints are on that. The
18 other thing that they found was records for a mobile telephone
19 number, 328848. 328848. You see up on the screen there, one
20 of the pages lists the subscriber of that mobile phone as
21 Ahmed Khalfan, P.O. Box 15577. Government's Exhibit 1459C is
22 a summary chart of some of the outgoing calls from that phone,
23 and on June 13, 1998, you see a call from that mobile phone to
24 a number we talked about yesterday, 512430. If you look on
25 the far right you see the subscriber for that is 43 Runda
5414
1 Estates, the bomb factory in Nairobi. So by June, telephone
2 contact between the two bomb factories.
3 You may remember that Khalfan Khamis Mohamed told
4 Agent Perkins that he remembered that Hussein, Mustafa, had a
5 mobile phone that he thought that Ahmed had gotten for him.
6 June 19 is the next date we will look at, and if you
7 take a look at Government's Exhibit 902, 902 is a passport
8 that is found in the Comoros in Harun's house, and that is a
9 passport for somebody who is identified as Jihad Ali. This is
10 the suicide driver of the bomb truck in Nairobi. If we go
11 through the passport we will see that on the 19th of June
12 Assam leaves Pakistan, and if we take a look at the next page
13 of the passport we will see that he enters into Kenya on the
14 19th. So by mid-June the suicide driver of the truck in
15 Nairobi is in Nairobi.
16 Towards the end of June you know from a witness you
17 heard, Said Salim Omar, who described for you how he lived in
18 Mombasa, and he had a truck, a Toyota Dyna, and that he sold
19 the truck to somebody he knew. He identified Sheik Ahmed
20 Salim Swedan. Government's Exhibits 583A through D are some
21 of the documents that Said Salim Omar had with the Dyna. He
22 described this conversation about how he joked for selling the
23 truck for $10,000, and Swedan jumped on it and said I'll take
24 it. Eventually they worked out a deal, and Said Salim Omar
25 said he has never seen him ever since. He was never able to
5415
1 get the paperwork, but he did say that he saw the truck after
2 he sold it, and there was one change, that the flatbed had
3 originally been uncovered and when he saw it later, it was
4 covered. They had modified the truck to hide the bomb before
5 they delivered the bomb.
6 Ladies and gentlemen, the evidence is overwhelming
7 that this is the bomb truck that the defendant Mohamed
8 Al-'Owhali drove in on the morning of August 7. First you
9 know that the same person bought both the Toyota Dyna for the
10 Nairobi bombing and the Nissan Atlas for the Dar es Salaam
11 bombing. But the other thing you know is from Agent
12 Sachtleben, who talked to you about some of the vehicle parts
13 that were found in the vicinity of the embassy in Nairobi, and
14 he described for you a couple of parts in particular that he
15 could identify based on the damage to them were from the
16 actual bomb truck. On the screen you see Government's Exhibit
17 840, which is the parts that were identified by both Agent
18 Sachtleben and Mr. Miyagi, who was the expert from Toyota.
19 Government's Exhibit 815 is the right front frame part -- if
20 you look at the documents, they have the chassis number, BU61,
21 and it lists the rest of the number. Agent Sachtleben told
22 you that based on the damage to the metal he could tell this
23 was from the actual vehicle. Mr. Miyagi told you that he
24 could tell this was from a Toyota truck part.
25 Government's Exhibits 822 and 823 are the rear axle
5416
1 pieces, and Agent Sachtleben described for you how he could
2 tell there was a significant force that came down from the top
3 of the axle piece, and he described for you the damage that
4 was done, and he could tell based on that damage that this
5 axle piece sat right underneath the bomb as it went off.
6 These pieces, you remember, were found in that railway yard
7 that were hundreds of yards away from the bomb, hundreds of
8 yards away. Mr. Miyagi, you may recall, designed the pieces
9 for the Toyota, told you that this was the rear axle piece for
10 a Toyota Dyna.
11 One of the other pieces was the Pitman arm,
12 Government's Exhibit 826. You remember the damage on the one
13 side, and the side that faced the back of the truck. Agent
14 Sachtleben told you that was consistent with being right near
15 the bomb. Mr. Miyaga told you exactly what that piece did and
16 where it was oriented. This was that was the piece where the
17 bomb blast came from the one side.
18 The defendant Odeh described to the FBI a meeting he
19 had with somebody he identified as Ahmed the German 40 days
20 before August 6. That puts it into roughly late June. What
21 Odeh told the FBI is that Ahmed the Egyptian came to him and
22 delivered --
23 MR. RICCO: Objection, Judge.
24 MR. KARAS: -- a message that Sheik Hassan from
25 Somalia wanted to meet with Bin Laden, and that Odeh, Ahmed
5417
1 the Egyptian -- and we will make clear that Ahmed the Egyptian
2 is not the same person as Ahmed the suicide driver in Dar es
3 Salaam, if that's the issue -- and Mustafa Fadhl, Odeh, Ahmed
4 the Egyptian or Mustafa Fadhl, had to export this person Sheik
5 Hassan from Somalia to go see Bin Laden. But the other thing
6 that Odeh told the FBI was that Ahmed the Egyptian also said
7 that Bin Laden had new plans to fight and that Odeh would have
8 to travel to confer with Bin Laden about these new plans to
9 fight.
10 Now we move to July. By July, Khalfan Khamis Mohamed
11 told you that he and Mustafa Hussein and Hussein's wife and
12 children, Anas and Yousef, moved into the house -- ladies and
13 gentlemen, one thing to think about, you have Hussein, Mustafa
14 Fadhl, in a bomb factory where he and others are going to
15 construct a bomb. They are going to have TNT and detonators,
16 and Mustafa Fadhl is a family man, and he brings his wife and
17 two children with him every step of the way. You will see
18 that he brings them with him when they flee East Africa to go
19 to Afghanistan before the bombing. Terrorists do have
20 families, ladies and gentlemen, and Mustafa Fadhl is living
21 proof of that.
22 What Khalfan Khamis Mohamed described for you --
23 excuse me, to Agent Perkins -- was that Ahmed Khalfan and
24 Fahad were responsible for getting some of the components of
25 the bomb. They were responsible for getting the detonators,
5418
1 they were responsible for getting the TNT. You saw the
2 detonator that was found in Ahmed Khalfan's room at 15 Amani.
3 Late July, somewhere between July 24 and July 30, the bomb
4 truck for Dar es Salaam is purchased, and one of the witnesses
5 you heard from was Mohamed Sultan. He was the very first
6 witness you heard from that day, all the people that came from
7 Tanzania, and he described for you that Mohamed Sultan had a
8 truck, that he wanted to sell the truck, and he went through
9 and he described for you a transaction that took two days.
10 What he said was that one person he thought was the tall one,
11 and he identified the picture of Swedan, the same person who
12 bought the truck, the Dyna, and another person he described as
13 Fupi, the short one -- Ahmed Khalfan was the picture that he
14 identified, who Khalfan Khamis Mohamed said was responsible
15 for getting some of the components for the truck.
16 In fact, Mohamed Sultan identified a picture,
17 Government's Exhibit 1175, as looking like the truck that he
18 sold to these two individuals. One of the things he told you
19 was that they went looking for this person Fupi one day, and
20 he identified the picture Government's Exhibit 1300 which was
21 15 Amani, the place where the passport photo and the passport
22 application with the fingerprints of Khalfan Khamis Mohamed
23 was found. What Mohamed Sultan told you was that the
24 transaction actually took place at the Al Noor Hotel in Dar es
25 Salaam, and in particular he identified the room, room 24
5419
1 within the Al Noor Hotel. Remember he said there was a
2 meeting and they were haggling back and forth about how much
3 money they had, and there was a knock on the door, and this
4 mysterious third person showed up with the rest of the money,
5 and just like the transaction involving the Nairobi bomb
6 truck, there was no paperwork. There was no contract.
7 Mohamed Sultan never got the rest of the paperwork. You may
8 remember Fabid Sadaalli was the hotel clerk, and one of the
9 things he identified was the guest register book, Government's
10 Exhibit 1457. If you look inside there, you see at the top
11 right, 24/7/98. You will see, if we can go ahead and
12 highlight that example, there is an entry for Sheik Ahmed, and
13 you see at the far right, room 24, just like Mr. Sultan
14 described for you. Fabid Sadaalli identified this photograph,
15 Government's Exhibit 123, as Sheik Ahmed, and he remembered
16 Sheik Ahmed getting visited by Ahmed Khalfan Galani. As I
17 mentioned earlier, there was Julius Kisingo, the welder who
18 did the work, and he identified the picture of Swedan as the
19 person who asked him to do the welding. If you look at
20 Exhibit 1178A on the screen, that is an overhead view of the
21 diagram of the back of the truck that Julius Kisingo described
22 for you. You remember how he took the frame and he described
23 the two sides that he built along the side of the wall. He
24 described the metal shack that we saw, Government's Exhibit
25 1366, that went along the side of the wall. What he said was,
5420
1 the person he identified as Swedan told him that he wanted
2 Kisingo to make these frames in the back for fish and that
3 Mr. Kisingo remembered seeing a spot where a refrigerator unit
4 of the truck had been but the unit was no longer there but he
5 could tell that it was once a refrigerator truck. The other
6 thing Julius Kisingo described for you was a large battery
7 frame that he was asked to make. That is Government's Exhibit
8 1178B.
9 One thing to bear in mind, if we can put up on the
10 left side Government's Exhibit 1178A and if we could rotate
11 it. During his interview with the FBI, Khalfan Khamis Mohamed
12 walks one of the FBI agents through a diagram as it was being
13 described by Khalfan Khamis as the back of the truck. Khalfan
14 Khamis Mohamed described the diagram on the right, 1054, as an
15 accurate diagram. If you compare it to the diagram of Julius
16 Kisingo, you can see, one of the things Julius Kisingo told
17 you about the holes in the back of the truck, they were marked
18 before he was asked to do any work and he drilled the holes
19 where he was told to do so. You will see that Khalfan Khamis
20 Mohamed agreed with the agents in that diagram that the
21 batteries that were used, no doubt the batteries used to
22 detonate the bomb, were in the back of the truck, and there
23 was wiring, which of course explained the holes in the back of
24 the truck, that had to go all the way up to the cab so the
25 suicide driver could detonate the bomb.
5421
1 Just like what the forensic evidence told you about
2 the bomb truck in Nairobi, the forensic evidence told you the
3 same thing about the bomb truck in Dar es Salaam. The right
4 front chassis, which had the number 4H0, identified as a part
5 from the Nissan Atlas. You had just like the bomb truck in
6 Nairobi, the bomb truck in Dar es Salaam, Government's Exhibit
7 11. Mr. Suby was the expert connected with the Nissan
8 company. Then you had the tire rim, Government's Exhibit 1119
9 that we have before you here, which Agent West also described
10 as consistent with part of the bomb truck. That is the bomb
11 truck that Khalfan Khamis Mohamed and the others loaded the
12 components, that Khalfan Khamis Mohamed got in on the morning
13 of August 7 with Ahmed, the suicide bomber. That is the bomb
14 truck that delivered the bomb that murdered 11 people at the
15 embassy in Dar es Salaam on the morning of August 7.
16 What Khalfan Khamis Mohamed described to Agent
17 Perkins was that when they got the components of the bomb, he
18 and the others used a grinder, and he identified a photograph
19 of it, and it was found during a search that was introduced to
20 you by way of stipulation, Government's Exhibit 1440, this
21 piece of machinery that was used to grind the TNT. Ladies and
22 gentlemen, we don't have a picture of Khalfan Khamis Mohamed
23 and the others grinding the TNT and putting together the
24 components of the bomb. That is something you are going to
25 have to picture. You picture Khalfan Khamis Mohamed and
5422
1 Mustafa Fadhl and the others, with Mustafa Fadhl's children
2 somewhere in the house, grinding the TNT, putting together the
3 components of what they know is going to be a massive bomb,
4 that they know is planned to be delivered at the doorstep of a
5 building filled with people, and who knows how many people
6 around that building. That's what went on in 213 Ilala, the
7 house that Khalfan Khamis Mohamed rented in the summer of
8 1998.
9 One of the other things that Khalfan Khamis Mohamed
10 described was that they used these cylinder tanks, and you
11 know from some of the items that were obtained from the crime
12 scene that fragments of cylinder tanks were found, and there
13 are a couple of representative samples. Government's Exhibit
14 1132, you can see some wood, it's actually jarred in, very,
15 very heavy pieces. Khalfan Khamis Mohamed described that they
16 used a number of these, and you heard from Kathleen Lundee,
17 the metallurgist who did some metallurgy analysis, using the
18 ICP process, and she was able to determine, based on a
19 chemical position, and you see the chart there, she could
20 determine that there were at least 19 different cylinders used
21 in the back of the truck. Again, there is no video of the
22 bombing, but imagine these flying around the vicinity on the
23 morning of August 7.
24 Next we move to July 28. On July 28, Khalfan Khamis
25 Mohamed gets a Yemeni visa for his passport. Look at
5423
1 Government's Exhibit 1451. There you see Khalfan Khamis
2 Mohamed's photo at the top of the application, and he doesn't
3 apply for it in his own name but Zahran Nassor Maulid, the
4 same name as the passport application found in 15 Amani.
5 There you see additional information and he puts down his
6 profession as businessman.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5424
1 MR. KARAS: (Continuing) July 27 through July 30, we
2 pull up Government Exhibit 594-27, and 594 is the minutes used
3 on the satellite phone that we talked about yesterday, and
4 between the 27th and 30th of July you see down there at the
5 bottom, 27th through the 29th, there are eight calls to a
6 number 994, which is the country code for Azerbaijan, the
7 country we talked about yesterday -- at the top of this map
8 here, just north of Iran -- and then you see the local number
9 there is 6880488. That is the number that you are going to
10 see called on the eve of the bombing and the morning of the
11 bombing. And from that number, ladies and gentlemen, there
12 are records from Azerbaijan that are going to show an
13 operator-assisted call to The Grapevine in London, the place
14 where the Scotland Yard officers found one piece, one page of
15 the claim of responsibility about a month after the bombing.
16 At the bottom of that page, you see a telephone call
17 from the satellite phone on July 29th, 1998 to that number
18 2084411, and the 4411 number is one of the three numbers that
19 belongs to Khalid al Fawwaz. Then if we go to Government
20 Exhibit 593, these are some of the records from O'Gara
21 Satellite Networks where Ziyad Khalil, the person who
22 purchases the minutes, you see on July 30th, the day after the
23 telephone call goes from the satellite phone to Khalid al
24 Fawwaz, he's in such a rush he takes an old minutes order, he
25 scratches out April 13th, he puts July 30th.
5425
1 And you may remember that Marilyn Morelli, the person
2 from O'Gara Satellite Networks, says the one thing she
3 remembered about Khalid was when he was purchasing minutes, he
4 was always in a rush. Normally, it would take a day or two,
5 but he wanted it that day.
6 And you see the telephone call, the satellite phone,
7 the Jihad phone we talked about yesterday, they know they're
8 going to be busy the next few days, so they're going to get
9 stocked up on minutes. They call Khalid al Fawwaz. He calls
10 his man in the United States. They get 400 more minutes
11 purchased on the satellite phone, which you see on the next
12 page of the records in Government Exhibit 593. And there you
13 see the add minutes transaction order and you see the date at
14 the top there, 7/30/98.
15 July 31st, the very next day, if we take a look at
16 Government Exhibit 901, this is the passport that the
17 defendant Mohamed Al-'Owhali used. And if we go ahead and
18 rotate this and focus, you see an exit from Pakistan on 31
19 July, 1998.
20 Now, what Mohamed Al-'Owhali told Agent Gaudin was
21 that when he was in Afghanistan, when he returned from Yemen
22 after getting his fake passport, he made a video, a video that
23 was supposed to celebrate his martyrdom in the operation that
24 they expected to carry out a few months later. And in that
25 video Mohamed Al-'Owhali gave the name of the organization
5426
1 that was going to claim credit for this bombing after it took
2 place.
3 And you'll see, and we'll go through and compare the
4 wording, but the wording of the organization that Mohamed
5 Al-'Owhali gave to Agent Gaudin matches almost verbatim with
6 the name of the organization that al Qaeda sent the claims of
7 responsibility through to London. Months before the bombing,
8 they even know the fictitious name of the organization they
9 are going to use to claim credit for the bombing to advertise
10 what they had done.
11 Now we get to August 1st. August 1st at the Hilltop
12 Hotel. If we take a look at Government Exhibit 518, this is
13 the registry book for the Hilltop Hotel in Nairobi, and what's
14 being displayed for you on the screen are the two sides or the
15 two pages that make up the entry for August 1st, 1998.
16 What's being magnified for you is an entry on August
17 1st, and Abubakar Khalfan, Box 15577, and it says D, looks
18 like SA, Dar es Salaam, Tanzania, and on the next line,
19 another businessman. Abubakar Khalfan is Ahmed Khalfan
20 Ghailani.
21 There's a passport he gets, a Tanzania passport in
22 the name that's very similar to that. And P.O. Box 1577 you
23 may remember is the same P.O. Box that those telephone records
24 for that mobile phone 328848 that we looked at just a few
25 minutes ago, the telephone records that are found in 15 Amani,
5427
1 the place which Amina Rashid says Ahmed was living during the
2 summer of 1998.
3 With respect to the defendant Odeh, the defendant
4 Odeh tells the FBI that on August 1 he runs into Saleh and
5 Fahad and that there is conversation where Saleh is actually
6 yelling at Odeh to get his passport which Odeh says he doesn't
7 have. And there's a meeting later on that night where there
8 is discussion about giving Odeh an expired Yemeni passport,
9 and they agree they're going to get a visa to go with that
10 passport on August 2nd.
11 Then there's another meeting between Odeh and Saleh
12 alone where Saleh told Odeh that the others were leaving that
13 day and that he, Odeh, had to get his affairs in order. The
14 other thing that Odeh said to the FBI was that Mustafa told
15 him that he, Mustafa, and two others were ordered to leave,
16 that something big was going to happen.
17 Let's stop for a moment and consider what has
18 happened regarding what the defendant Odeh has admitted to the
19 FBI and then what the other evidence shows.
20 By the 1st of August, defendant Odeh, according to
21 what he admitted to the FBI, knows about Bin Laden's fatwahs.
22 He's had meetings with Saleh and Mustafa where they discuss
23 these fatwahs about how Bin Laden has a new plan.
24 There are meetings with Mustafa and Saleh, according
25 to what Odeh is willing to admit to the FBI, where the group
5428
1 is told to leave Kenya for a number of different reasons are
2 given, and that Odeh is supposed to go and see Bin Laden.
3 Then, on August 1, as we just went through, he's
4 supposed to get a passport, and others are leaving and there's
5 a big operation.
6 Now, the other evidence shows you that by August 1,
7 Odeh is still a fully sworn member of al Qaeda, fully paid
8 member of al Qaeda; that he's been a member of al Qaeda since
9 1992; that he's been part of the East Africa cell of al Qaeda
10 since 1993, 1994; that he's fully trained in explosives, and
11 that by the time he leaves his house in Witu and goes to
12 Mombasa on August 1st. And he does not go back to Witu, he's
13 left behind some sketches in his house, Government Exhibit
14 704-2, I think it is, or P2, those two sketches that Agent
15 Leadbetter found in Odeh's house in Witu.
16 We'll talk more about these sketches later on, ladies
17 and gentlemen, but I submit to you that those sketches are
18 independent physical evidence that will establish for you what
19 Odeh's role was in this bombing -- technical advisor with the
20 others that carried out the bombing.
21 August 2nd. August 2nd is the day, according to what
22 Mohamed Al-'Owhali told Agent Gaudin, that he gets to
23 Nairobi -- remember, he got there a day later than he was
24 supposed to, so he told Agent Gaudin that he missed a meeting
25 in Mombasa and he said that he gets to Nairobi and he goes to
5429
1 the Ramada Hotel and he gets in contact with the person he had
2 been in touch with who told him to wait and that somebody
3 would come to pick him up.
4 And what Mohamed Al-'Owhali told Agent Gaudin was the
5 person who came to pick him up was Harun, and he identified
6 Harun's picture from the video of the ferry accident. And on
7 August 2, Harun took Al-'Owhali to what he knew to be Harun's
8 house and that's where Al-'Owhali would stay until the day of
9 the bombing.
10 Now, what the defendant Odeh told the FBI that he did
11 on August 2nd was he was ordered to get his affairs in order,
12 that he got a phone call from the person that he identified as
13 Fahad, it was an angry phone call, wanting to know where Odeh
14 was and telling him, Odeh, that Saleh wanted to see Odeh. So
15 Odeh went to try to find Saleh in Mombasa but was unable to do
16 so. Saleh was gone.
17 The other thing that happens on August 2nd is the
18 first group of people involved in the bombing leave. If we
19 take a look at Government Exhibit 541A, you see there that is
20 a ticket for Pakistani International Airways, PIA, Flight 744,
21 and it's a ticket for Sheik Ahmed Salim Swedan, the person
22 pictured in Government Exhibit 123, the person who bought the
23 two bomb trucks for Nairobi and Dar es Salaam. And you see,
24 by the way, the departure is on 2 August and they go to
25 Karachi, which is in Pakistan. It's not on the map but it's
5430
1 in Pakistan.
2 Government Exhibit 541F, a ticket that's purchased on
3 August 1, you see on the top right, a ticket for Pakistani
4 International Airways, Flight 744, on 2 August for El Baji,
5 which is one of the aliases for Mustafa Fadhil. He's the
6 person who approached Khalfan Khamis Mohamed about doing the
7 Jihad job. He's the person Khalid that carried out the new
8 policy that Wadih El Hage brought back from Bin Laden in 1997.
9 He leaves. He doesn't leave alone. Government Exhibit 541H
10 is a ticket for Anas, his son, and 541I is a ticket for Yusr,
11 his daughter, and there's also a ticket for his wife.
12 August 3rd. This is the day, according to what the
13 defendant Al-'Owhali told Agent Gaudin, that he had meeting
14 with Saleh and Saleh told Al-'Owhali that there were going to
15 be two bombings, one in Nairobi and one in Dar es Salaam on
16 the morning of August 7th, and he said somewhere between 10:30
17 and 11.
18 And they reviewed photographs of the embassy and they
19 reviewed drawings of the embassy, and what I remind you of is
20 what Kherchtou told you about what Abu Mohamed al Amriki and
21 what Anas were doing in Nairobi in 1983 when Anas al Liby had
22 a camera 500 meters away from the embassy where they were
23 developing photos.
24 And it was on August 3rd, according to what
25 Al-'Owhali told Agent Gaudin, that he got his specific
5431
1 mission. He was to use a gun to get the bar up to get the
2 bomb truck as close as possible to the embassy. He was
3 supposed to use stun grenades to scatter people out of the
4 area, and that Mohamed Al-'Owhali would carry with him keys to
5 the back of the truck. If for some reason, the detonator in
6 the front part of the truck didn't work, then he would use the
7 keys to open up the back part of the truck, throw those
8 grenades and try to detonate the bomb.
9 Al-'Owhali described for Agent Gaudin what the bomb
10 truck looked like. It's was a beige truck with two wheels in
11 front and four wheels in back, which you know is actually
12 correct from what Mr. Miyagi told you about what the Dyna
13 was -- that was the NGDT and it had to deal with how many
14 tires there were in the back; that the bomb was supposed to be
15 made of TNT with aluminum powder in wooden boxes and
16 everything was connected with wires to batteries in the back
17 of the truck.
18 The other thing that Saleh told Mohamed Al-'Owhali
19 was that there was going to be the bombing in Dar es Salaam,
20 and he mentioned there was only going to be one person in that
21 truck and said that the person was going to be known to
22 Al-'Owhali as Ahmed the German. Just so we're clear, that's a
23 different Ahmed than Ahmed the Egyptian Mohamed Odeh talked
24 about with the FBI. And what Al-'Owhali told Agent Gaudin was
25 he knew the person who was going to carry out the bombing in
5432
1 Dar es Salaam and that he was sorry he missed the meeting
2 earlier in the week because he wanted to say good-bye.
3 Saleh told Al-'Owhali that the truck in Dar es Salaam
4 was going to be a refrigerator truck. Saleh bragged about how
5 they got the bomb together in Dar es Salaam in about ten days.
6 The bomb in Dar es Salaam was going to involve oxygen tanks
7 for fragmentation and that they changed the location of the
8 delivery of the bomb truck to take it further away from the
9 French embassy.
10 And you may recall that Ambassador Lange talked about
11 after the bomb, he got through the fence and he met the French
12 ambassador and he went across the street to the French Embassy
13 briefly before he went back to the American Embassy.
14 On August 3rd, according to what Odeh told the FBI,
15 Fahad picked up Odeh and they went to the immigration office,
16 and from there Fahad took care of the visa for the passport
17 that Odeh had received and then Fahad and Odeh went to a
18 travel agency to buy tickets. And then Fahad told Odeh to go
19 to Nairobi and to meet up with the rest of the group at the
20 Hilltop Hotel.
21 And what Odeh told the FBI was that they in fact did
22 that through the night and arrived at the Hilltop Hotel the
23 morning of August 4th. And if we look at Government Exhibit
24 518, which again is the registry for the Hilltop Hotel which
25 we looked at just a few minutes ago that had the entry for
5433
1 Ahmed, Khalfan Ghailani, you see at the very top there, if we
2 pull up both parts of the page and magnify it, an entry for
3 Abdel Basit, which we'll see in a minute is the name on the
4 passport that the defendant Odeh used when he fled Nairobi the
5 night before the bombing. So, on August 4th, Odeh, the Kenyan
6 resident, checks in to a Kenyan hotel using a fake name, Abdel
7 Basit, and he too is a businessman.
8 Now, according to what Odeh told the FBI, he took a
9 nap in the room that he was given, Room 102B, and that he
10 later ran into Saleh and Harun, who were leaving the hotel;
11 that Saleh gave Odeh a razor and a pair of pants and told Odeh
12 to use the razor to shave his beard so he wouldn't look like a
13 Muslim. Odeh also said that on the 4th, Harun and Saleh told
14 Odeh they were going to go out to do a small job, and we'll
15 talk about how that was described later on.
16 And then Odeh ran into Abdel Rahman, the person who
17 was one of his trainers at the Sadeek Camp that we talked
18 about yesterday, where Odeh was taught how much and what type
19 of explosive to use to do an operation. He told the FBI he
20 ran into his former bomb instructor, Abdel Rahman, and that
21 Abdel Rahman mentioned that he had been at the hotel for the
22 preceding two months.
23 At some point that day, Saleh and Harun returned and
24 Odeh mentioned to the FBI that Harun drove a white pickup
25 truck. And Odeh remembers Saleh reading a magazine and saying
5434
1 a prayer, indicating that he was worried, and that Odeh said
2 he stayed the night the Saleh's room.
3 Meanwhile, on August 4th, what Al-'Owhali told Agent
4 Gaudin on August 4th he did was that he and Saleh went to the
5 American Embassy, and Saleh showed Al-'Owhali where the bomb
6 was supposed to go. And Al-'Owhali and Saleh had a discussion
7 about where Al-'Owhali thought the bomb should go, and at the
8 end of the day Saleh told Al-'Owhali what the plan was.
9 Meanwhile, in Dar es Salaam, if you take a look at
10 Government Exhibit 1459E, and this is a summary chart of phone
11 calls that are made from that mobile phone, 328848, the mobile
12 phone, the records of which were found in 15 Amani, and if you
13 look at the 4th of August at 7:16 p.m., you see a call for two
14 minutes to a number in Egypt. And remember from the razor and
15 from the stipulation I talked about, the suicide driver of the
16 bomb truck in Dar es Salaam is from Egypt. So by the 4th of
17 August, the suicide driver is in place in Dar es Salaam.
18 Meanwhile, halfway around the world in London, on
19 August 4th, if you take a look at Government Exhibit 1558-P,
20 there is dated the document, and we can look at the fax
21 header, The Grapevine, and there it has the number for The
22 Grapevine, 3727415, August 4, 1998. And if we take a look at
23 the translation -- you may remember we read you this
24 document -- this is the document where EIJ, the partner in the
25 joint venture with al Qaeda, is talking about how angry it is
5435
1 about what it perceives happened to some of its members.
2 And in the fourth paragraph, EIJ and it says the
3 information office of the Jihad group in London writes, "we
4 would like to inform the Americans that, in short, their
5 message has been received and that they should read carefully
6 the reply that will, with God's help, be written in the
7 language that they understand."
8 Now, this document is found in the office at 1A
9 Beethoven Street in London, and the Scotland Yard officers who
10 did the search in that place for a number of days, you may
11 remember this is the place where they also found the claims of
12 responsibility, a copy of the claims of responsibility for the
13 bombings.
14 They also found an envelope with an address label for
15 Khalid al Fawwaz, the al Qaeda person in Nairobi who Wadih El
16 Hage replaced, who then goes to London and is involved in
17 getting the satellite phone and in getting the various fatwahs
18 and declarations of Jihad published and disseminated.
19 And it's an office that you know by way of
20 stipulation was leased by that third person in London I
21 mentioned to you, Adel Abdel Bary, and it was earlier leased
22 by Khalid al Fawwaz. Take a look at the leases, you will see
23 they sort of rotate who is actually the person renting the
24 Unit 5 at 1A Beethoven Street.
25 Now we move to August 5th. Al-'Owhali told Agent
5436
1 Gaudin that on August 5th, Abdel Rahman shows up to do the
2 final wiring for the bombing. And the other thing you know
3 from Government Exhibit 340, which is a summary chart based on
4 telephone records for calls from 43 Runda Estates -- and
5 remember, this is the bomb factory, and the telephone there
6 Harun asked the landlord, Ms. Ratemo, to get special
7 permission to make international calls.
8 On August 5th at 11:11 p.m., there is a
9 six-and-a-half-minute call from Khalid Salim, the alias that
10 Al-'Owhali is using, to a number in Yemen, and we'll just call
11 this the 0578 number from here on out. Al-'Owhali told Agent
12 Gaudin that he did speak to his friend Ahmed and he called
13 from Runda Estates.
14 Now, on August 5, Odeh tells the FBI that what he did
15 that day was he woke up and he saw Harun eating breakfast with
16 a Saleh, and he mentioned that they were wearing the same
17 clothing that they had been wearing the night before; and that
18 Odeh had a conversation with Saleh where he asked him, Saleh,
19 to pick up some socks and a shirt for Odeh. Saleh told Odeh
20 to wait for Abdel Rahman and that Odeh mentioned that on that
21 day he took a walk along Moi Avenue and he bought some items,
22 a shirt and some books and that, once again, Saleh and Harun
23 stayed out all night.
24 By the way, you may remember there was a latent
25 fingerprint lift in the Room 107B that was identified as
5437
1 belonging to the defendant Odeh.
2 Now, Khalfan Khamis Mohamed described for Agent
3 Perkins a situation in Dar es Salaam where the bomb truck got
4 stuck in the sand and that he and Ahmed, the suicide driver,
5 had to work to try to get the truck unstuck from the sand and
6 they were able to do that.
7 Khalfan Khamis Mohamed said to Agent Perkins that
8 Ahmed, the driver, had that mobile phone and he remembered
9 Ahmed, the driver, using that phone to call the brothers. And
10 if we take a look at 1459E, which is again the summary chart
11 for calls from that mobile phone, what you will see is on
12 August 5th, three telephone calls to the Hilltop hotel, the
13 same hotel that the registry records show you that Ahmed
14 Khalfan Ghailani checked into on August 1 and the same hotel
15 that the hotel records show that Abdel Basit, the alias for
16 Odeh, checked into.
17 August 6th. What Odeh said to the FBI about August
18 6th is he remembers that Ahmed from Tanzania and Fahad showed
19 up and that they were staying at another hotel; that Saleh and
20 Harun returned to the Hilltop again dressed in the same
21 clothes as they had been wearing the night before; that Saleh
22 was in a good mood, and that on August 6 Saleh told Odeh that
23 he spoke with the people in Kandahar -- remember we looked at
24 the map yesterday and Kandahar is a province in Afghanistan --
25 he spoke to the people in Kandahar and that the people had
5438
1 been evacuated because they were expecting retaliation from
2 the United States Navy.
3 Odeh said that on that day he went shopping again and
4 got a towel and he got a bag, and that he went back to the
5 hotel and he met up with Fahad and that Fahad told Odeh that
6 Saleh and Abdel Rahman had left Kenya and that he and Fahad
7 had dinner, got their shoes shined, and went to the airport.
8 So now we have another five or six days since we last
9 sort of went through what it is that Odeh admitted to and what
10 the evidence showed you. Since before August 1, Odeh admitted
11 to the FBI he knew about the fatwahs, he knew everybody had
12 been ordered to leave, and what he learned, according to what
13 he told the FBI, between the 1st and the 6th is that he was
14 given orders to leave, in fact, I mentioned it earlier, but
15 everyone had to be out by August 6th; that he met up with
16 Saleh and Harun at the Hilltop Hotel; that he saw his bomb
17 trainer, Abdel Rahman; that he knew that Saleh and Harun said
18 that they were going to do a small job on one of those days;
19 that Saleh was happy after being up all night for the second
20 consecutive night; that the United States was expected to
21 retaliate against the people in Kandahar, Afghanistan; and
22 that everybody else was leaving that night.
23 Now, according to what Al-'Owhali told the FBI, what
24 he did on August 6th, he once again made some telephone calls.
25 And if we look at 340, Government Exhibit 340, this is the
5439
1 summary chart, you see two calls again from 43 Runda Estates,
2 the bomb factory, to the 0578 number, 12:37 for a little over
3 four and a half minutes, and 8:44 in the evening, a little
4 over 7 minutes.
5 Meanwhile, on August 6th, if you take a look at the
6 records for the satellite phone, there is a call on August 6th
7 from the satellite phone to -- there are two calls to that
8 688048 number in Baku, Azerbaijan, the same call that's going
9 to call The Grapevine the day of bombings -- The Grapevine,
10 the place that received the claims of responsibility.
11 We know by way of stipulation that Hamdan Khalif
12 Allah, the name of the person who was the suicide driver in
13 Dar es Salaam, calls his family in Egypt and asks everybody to
14 be by the phone the next day. And you know from Government
15 Exhibit 1459E that the mobile phone is used to call a number
16 in Egypt on August 6th.
17 And you see down there at, I think it's the next page
18 at the top, you see two calls to Egypt on August 6th. August
19 6th is the day that Khalfan Khamis Mohamed gets his visa to go
20 to South Africa. You will see that in the passport. And on
21 August 6th, on Kenya Airways Flight 310, Saleh using the name
22 Abdallah Ahmed Abdallah, Ahmed Khalfan using the name Abu Bakr
23 Khalfan Ahmed, fly out of Nairobi on a Kenya Airways flight to
24 Karachi, and that Fahad and the defendant Odeh fly out on
25 Pakistani International Airways Flight 746 from Nairobi to
5440
1 Karachi, Pakistan.
2 THE COURT: We will take our midmorning break at this
3 point.
4 (Recess)
5 (Jury present)
6 THE COURT: We're turning down the air conditioning.
7 I know it's cold.
8 MR. KARAS: Thank you, your Honor.
9 We left off before the break with the defendant Odeh
10 and Fahad and others flying from Nairobi on the evening of
11 August 6th into the morning of August 7th, heading to Pakistan
12 on the escape path to Afghanistan.
13 Now, ladies and gentlemen, we get to August 7th,
14 1998, the eighth anniversary of when President Bush sent the
15 American troops to Saudi Arabia. And the first thing that you
16 know that happens on the morning of August 7th is the claims
17 of responsibility are sent as early as 4:45 in the morning,
18 and you saw the fax header to the claim of responsibility that
19 was found at The Grapevine in London and the three other
20 claims of responsibility, the three other pages between 4:53
21 a.m. and 4:56 a.m. on the morning of August 7th, 1998, and
22 those claims of responsibility to be later released so that
23 the members of this conspiracy could take credit for the
24 bombings in Nairobi and Dar es Salaam.
25 From here on out, the times I'm going to mention to
5441
1 you are in East African time in Nairobi and Dar es Salaam.
2 The next event that happens is at approximately 5:30
3 in the morning, and that is when the defendant Odeh, in his
4 attempt to escape and go to Afghanistan, is caught at the
5 airport in Karachi, Pakistan.
6 At 8:54 in the morning, Ahmed the German, the suicide
7 driver in Dar es Salaam, calls his family in Egypt to say he's
8 leaving this life. Government Exhibit 1459E, you see the call
9 being placed from that mobile phone in Dar es Salaam.
10 At 9:14, at 9:23 a.m., the satellite phone, the
11 satellite phone in Afghanistan, calls that number 688048 in
12 Baku Azerbaijan. From that number, later on there will be a
13 call to London to the mobile phone of Ibrahim Eidarous and a
14 call to The Grapevine in London.
15 At 9:19 a.m., the defendant Al-'Owhali calls his
16 colleague Ahmed in Yemen at the 0578 number. There you see it
17 in the chart, Government Exhibit 340.
18 At 9:29 a.m., just ten minutes later, the mobile
19 phone in Dar es Salaam calls from Dar es Salaam into Mombasa.
20 That is the last telephone call that is made from the phone
21 that Khalfan Khamis Mohamed told Agent Perkins he last saw in
22 the hand of Ahmed, the suicide driver, when he went off to do
23 the bombing.
24 At 9:45 a.m., the bomb truck leaves 43 Runda Estates
25 in Nairobi, led by Harun driving a white pickup truck. Just
5442
1 15 minutes later, the bomb truck leaves 213 Ilala, the bomb
2 factory in Dar es Salaam. In this bomb truck is Ahmed, the
3 suicide driver, and the defendant, Khalfan Khamis Mohamed.
4 Now, soon after getting into the truck and riding in
5 it for a brief time, Khalfan Khamis Mohamed gets out of the
6 truck, goes back to the bomb factory, and he begins his
7 prayers for Ahmed, the suicide driver.
8 Just before 10:30 in Nairobi, Frank Pressley, the
9 communications officer, is speaking with his friend Michelle
10 O'Connor and Jay Bartley Jr. Pininah Muhoho is waiting for
11 the bus outside the embassy in Nairobi, and in Dar es Salaam,
12 Edward Rutahesherwa, the security guard, is being replaced for
13 his midmorning break. Both ambassadors in Nairobi and Dar es
14 Salaam are attending meetings.
15 At just a few minutes before 10:35 in the morning,
16 Al-'Owhali arrives with Azzam in the bomb truck in the back
17 parking lot of the American Embassy in Nairobi. He has the
18 gun in his jacket and he has the four grenades he's going to
19 use in an effort to get the bomb truck as close to the embassy
20 as possible. Harun, who had been leading the bomb truck in
21 his white pickup truck, stopped outside at a roundabout or
22 circle near the embassy.
23 Inside the parking lot, Al-'Owhali gets out of the
24 truck. Forgetting his gun in the jacket, he uses those stun
25 grenades to try to scare the guards to open the gate so the
5443
1 truck can get as close to the embassy as soon as possible.
2 His partner, Azzam, begins shooting outside the window of the
3 driver's side of the truck.
4 After Al-'Owhali throws his flash grenades, he comes
5 to the decision that there's no point in his dying. His dying
6 will not be a martyrdom operation, it will be suicide. So he
7 runs.
8 At 10:35, ladies and gentlemen, at 10:35, Azzam
9 detonated the bomb and, in a flash, he killed hundreds, he
10 wounded thousands, but just before he detonated that bomb,
11 Al-'Owhali was able to turn the corner, and in so doing he was
12 able to do something that 213 other people did not do that
13 morning, and that's survive the bomb that he helped deliver,
14 leaving behind chaos, death, injury and horror.
15 Ambassador Bushnell described for you the two
16 different times she thought she was going to die that morning.
17 George Mimba, the information systems manager at the embassy
18 who had just been speaking to Julian Bartley just before the
19 bomb went off, described how there was smoke and he couldn't
20 see and he crawled out to an open space and he was going to
21 jump so his father could find his body.
22 To buy so he ten I don't see, the commercial
23 specialist, he said, "I thought it was the end of the world."
24 And before the dust could even begin to settle in Nairobi, at
25 10:39 a.m. in Dar es Salaam, Tobias Otieno is attending a
5444
1 meeting and he sees the lightening flash and then the loud and
2 long boom that she described for you.
3 Liz Slater was in a meeting with Cynthia Kimble, and
4 she told you that it just went pitch black. "There was a
5 feeling, a strange smell, a kind of oily, gritty feeling in
6 the air. The walls were on top of me. I could see the sky."
7 Cynthia Kimble was screaming and people were trying to figure
8 out what happened.
9 Meanwhile, back in Nairobi, the defendant Al-'Owhali,
10 having survived his own bomb attack, went to the M.P. Shah
11 Hospital in Nairobi to be treated for his wounds, to be
12 treated in the same hospital that would treat the others that
13 he injured.
14 From there, and before he leaves -- remember, he
15 leaves behind the bullets and the keys and then Al-'Owhali
16 goes to the Ramada Hotel, where he convinces the clerk to let
17 him check in and he gets some more clothing.
18 Meanwhile, back in Dar es Salaam, while the rescue
19 efforts are under way and people like Liz Slater are making
20 their way out of the embassy, seeing that poor man whose skin
21 had been ripped off, so much pain she said she wished he would
22 die, Khalfan Khamis Mohamed is back at the bomb factory,
23 searching for news on the radio and the television to see if
24 the bomb happened. And when he learns that it did, he was
25 happy. He was happy that the bomb had gone off, and what he
5445
1 left behind, ladies and gentlemen, what he was happy about you
2 see in Government Exhibit 1103D.
3 While the rescue efforts were going on, Harun, who
4 had volunteered to stay behind to clean up the evidence that
5 would link the group to the bombing, he cleans up the bomb
6 factory in Nairobi. And Khalfan Khamis Mohamed, who had
7 agreed to stay behind, he begins the clean up efforts in Dar
8 es Salaam. He cleans the house and he attempts to rid the
9 house of some of the instruments that were used to build the
10 bomb, telling his nephew, "Clean this machine because it has
11 been used for unclean things."
12 The Baku phone, the 6888048 phone, is in touch with
13 Ibrahim Eidarous in London and is sending the facsimiles to
14 The Grapevine to be picked up by Ibrahim Eidarous and Adel
15 Abdel Bary. All of that happened on August 7th, 1998.
16 On August 8th and August 9th, 1998, the defendant
17 Al-'Owhali decides he needs to leave Nairobi, but because he
18 was supposed to die in the bombing, he doesn't have his
19 passport, he doesn't have any identification and he is without
20 money. So he calls the number in Yemen, the 0578 number, as
21 seen in Government Exhibit 342. He calls both on the 8th and
22 the 9th, several times to Yemen.
23 And while he's doing this, while Al-'Owhali is
24 looking out for himself, while he's attempting to escape the
25 damage and the horror that he has done, Samuel Nganga is
5446
1 trapped underneath the rubble of what used to be the Ufundi
2 House with a bone protruding out of his body, speaking to
3 Rose, a woman he was communicating with who was also trapped
4 underneath the rubble. And during these two days, during
5 those two days that Al-'Owhali tried to run, Samuel Nganga
6 waited and waited to be rescued. He was, but Rose wasn't.
7 Khalfan Khamis Mohamed, he's going to flee, too. He
8 takes his passport in the other name and he runs to South
9 Africa, leaving behind death and destruction, and he goes to
10 South Africa and he applies for political asylum, saying that
11 he left Tanzania because of problems.
12 And while Khalfan Khamis Mohamed does that, while he
13 runs in from Tanzania, the other members of this conspiracy
14 send out the claims of responsibility, the claims of
15 responsibility that announce that the Islamic army for the
16 liberation of the holy places hereby takes credit for the
17 bombing in Nairobi and the bombing in Dar es Salaam.
18 And the bombing in Nairobi is called the Holy Ka'ba
19 operation, one of the reasons that Bin Laden said that
20 American civilians had to be killed. The bombing in Dar es
21 Salaam is called the Al-Aqsa Mosque operation, the other
22 reason that Bin Laden said that Americans had to be killed.
23 And the claim of responsibility announced to the world is that
24 two men from Saudi Arabia carried out the Nairobi bombing and
25 that one man from Egypt carried out the Dar es Salaam bombing,
5447
1 which you know from the evidence is exactly what happened.
2 Now, on August 10 to the 12th, Al-'Owhali is still
3 attempting to flee, still trying to reach out to that number
4 in Yemen to get money and to get assistance. And at the same
5 time, the group in Afghanistan, the al Qaeda headquarters,
6 using that satellite phone, is doing what it can to rescue
7 Al-'Owhali. In Government Exhibit 343, you see telephone
8 calls from the satellite phone to the 0578 number. Those are
9 the only calls that are made to that 0578 number from the
10 satellite phone in its entire existence.
11 August 14th, that is the day that Harun flees Kenya,
12 having finished up his clean-up effort, he leaves Kenya and he
13 goes to the Comoros, and from there he follows the al Qaeda
14 escape route to Pakistan and then into Afghanistan. And you
15 know that by way of stipulation.
16 And what Harun does is he fulfills his mission, just
17 like Khalfan Khamis Mohamed tried to do, by cleaning up any
18 evidence connecting the group to the bombing. And he takes
19 with him clothes that he had and he takes with him
20 Al-'Owhali's fake passport, the Yemen passport, Government
21 Exhibit 901.
22 He takes with him the passport for Azzam, Jihad Ali,
23 Government Exhibit 902. He takes his own passport, his own
24 Comoros passport. He has the fake vaccination card for
25 Al-'Owhali, Government Exhibit 9304, and he has Al-'Owhali's
5448
1 ticket, his Gulf Air ticket that got him into Nairobi at the
2 beginning of August, 1998. And he has Azzam's Saudi driver's
3 license.
4 All items that he took from Nairobi that he couldn't
5 bring with him to Pakistan and Afghanistan, left behind, and
6 he took them because Al-'Owhali and Azzam were supposed to die
7 in the bombing.
8
9 (Continued on next page)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5449
1 MR. KARAS: (Continuing) But unaware that Al-'Owhali
2 had survived, he took these items and he brought them home.
3 Ladies and gentlemen, the clothing that Harun had with him,
4 the boots, they tested positive for explosive residue, another
5 refrain that you see throughout this case. He also had what
6 the FBI agents found to be some bomb manuals that had in
7 English written the word explosive, what appeared to be timing
8 devices. Harun also left behind that white pickup truck, the
9 white pickup truck that had a rear view mirror on it that had
10 Harun's fingerprints, the white pickup truck that had an
11 insurance card for Mohamed Fahad Ally Salim, whose
12 fingerprints, ladies and gentlemen, are on that grinder, that
13 machine of death that they used to construct the bomb in Dar
14 es Salaam.
15 August 20, 13 days after the bombs go off and after
16 hundreds are dead, the FBI goes to interview the defendant
17 Wadih El Hage. Wadih El Hage was asked if he knew anybody in
18 Kenya who was associated with Bin Laden. He said no. Wadih
19 El Hage said that Bin Laden would not have been involved in
20 the bombing because he's a humanitarian, and he would have
21 done better intelligence to deal with the fact that Nairobi
22 was a congested city. Harun, according to Wadih El Hage, was
23 just somebody who worked for Tawhil, or Ahmed Sheik Adam, and
24 he was somebody who was good at getting information about
25 Somalia. But according to Wadih El Hage, he didn't know
5450
1 whether or not Harun worked for Bin Laden. Wadih El Hage said
2 he didn't know anybody in the United States who worked for Bin
3 Laden, and he claims that the only reason he knew about Bin
4 Laden's secret meetings was a ledger that he saw when he
5 worked for Bin Laden in Khartoum. Wadih El Hage was asked
6 about whether or not he knew the defendant Odeh, the defendant
7 Odeh that the evidence tells you was in the East African cell,
8 that the evidence, including tape recorded conversations,
9 shows that El Hage and Odeh communicated with each other.
10 Wadih El Hage said that he didn't personally know him, that he
11 just recognized his picture from the news. Once again, Wadih
12 El Hage denied any recent contacts with Bin Laden, with the
13 chief Al Qaeda military commander Abu Hafs.
14 September 10, 1998, Ali Mohamed, the person known as
15 Abu Mohamed al Amriki, who provided the surveillance training
16 and came to Nairobi in December 1993. Ali Mohamed testified
17 before the grand jury, and you know by way of stipulation that
18 there is a portion of the transcript of that testimony, and
19 Ali Mohamed lied to protect the conspiracy. Ali Mohamed lied
20 by saying that the only training he had ever done was against
21 the Russians, never admitting the training he had done to help
22 others learn how to do surveillance of targets.
23 Six days later, the defendant Wadih El Hage again
24 testifies before the grand jury here in New York, a little
25 over a month after the bombings have taken place, and once
5451
1 again Wadih El Hage chose Bin Laden over America, denying
2 recent contacts with Bin Laden, denying contacts with other Al
3 Qaeda members and associates, such as Ihab Ali, such as Ali
4 Mohamed, and of course Abu Hafs and Abu Ubaidah, and he did
5 this, ladies and gentlemen, for the same reason he lied to the
6 grand jury in 1997. He did it as his contribution to the
7 conspiracy, to protect the conspiracy from discovery by
8 American government officials. He did it so the conspiracy
9 could survive another day and carry on the mission that the
10 conspirators had agreed they would achieve. In so doing,
11 ladies and gentlemen, Wadih El Hage didn't share in the
12 tragedies of the embassy bombings, he merely added to it.
13 That's the chronology. That's the chronology of what
14 the evidence tells you from beginning to end that this
15 conspiracy involved, from back in Afghanistan in the late
16 1980's, up here to New York, September 16, 1998.
17 Now what I would like to do, ladies and gentlemen, is
18 to talk to you about the indictment. First some general
19 comments about the indictment. The indictment contains four
20 conspiracy counts, as I briefly mentioned yesterday. All four
21 defendants are included in the first two conspiracy counts and
22 the fourth conspiracy count. Defendants Odeh, Al-'Owhali, and
23 Khalfan Khamis Mohamed are in the third conspiracy count. We
24 will go through each one of these. There are then substantive
25 counts relating to the bombings in Nairobi and Dar es Salaam.
5452
1 Just so we are clear, the defendant El Hage is not
2 included in any of the substantive counts that relate to the
3 embassy bombings. The defendants Odeh and Al-'Owhali are only
4 included in the counts related to the Nairobi bombing and the
5 defendant Khalfan Khamis Mohamed is only included in the
6 counts that relate to the Dar es Salaam bombing. We will go
7 through this again as we go through these counts.
8 Finally, the indictment contains numerous perjury
9 counts that only include the defendant Wadih El Hage. Let's
10 talk for a moment about the conspiracy counts. There are four
11 conspiracy counts, as I mentioned. The first one that
12 includes all four defendants is a conspiracy to murder US
13 nationals. The second is a conspiracy to murder United States
14 government officers and employees. This count also charges
15 all four defendants. The third conspiracy, which, as I
16 mentioned, only includes Odeh, Al-'Owhali and Khalfan Khamis
17 Mohamed, charges conspiracy to use weapons of mass destruction
18 against United States nationals. And the fourth conspiracy
19 count is a conspiracy to destroy United States government
20 property and buildings.
21 At the end of the closing statements by all the
22 lawyers, ladies and gentlemen, Judge Sand will instruct you on
23 the law, and it is those instructions that you should follow.
24 But briefly, a conspiracy is simply an illegal agreement
25 between two or more people to break the law. To prove a
5453
1 conspiracy count, the government must show you beyond a
2 reasonable doubt the agreement to violate the law, each
3 defendant's membership and participation in that agreement,
4 and an overt act, something that was done by somebody in the
5 conspiracy in furtherance of the conspiracy. A conspiracy is
6 different than a substantive crime. The goal of the
7 conspiracy need not be achieved.
8 With that brief background, let's talk about the
9 first count, conspiracy to murder United States nationals.
10 The first thing is whether or not there was such a conspiracy
11 in this case. In going through the chronology we have covered
12 a lot of the evidence that lays out for you the existence of
13 the conspiracy involving these defendants and others to murder
14 nationals of the United States. As I mentioned to you
15 earlier, there is not a videotape of a meeting where there was
16 a contract signed where everybody says this is what we are
17 going to do. Remember, this is a secret conspiracy. The way
18 you learn about what the conspiracy's goals are, how it is
19 that conspiracies are carried out, are by the actions of the
20 people involved in the conspiracy.
21 One other thing that I think is very important to
22 note about conspiracy. Membership in Al Qaeda by way of
23 swearing bayat is not a requirement for guilt of conspiracy.
24 Membership by bayat in Al Qaeda is also not by itself
25 membership in the conspiracy that is charged in this case.
5454
1 The defendants Al-'Owhali and Khalfan Khamis Mohamed, there is
2 no evidence that they swore bayat to Al Qaeda. The evidence
3 is, however, that they joined in a conspiracy with others,
4 including some who swore allegiance to Al Qaeda, as part of
5 the conspiracy to murder United States nationals.
6 What is the evidence that there was a conspiracy to
7 murder United States nationals? There is the testimony of
8 Jamal al-Fadl, who told you as far back as when the American
9 military forces arrived in the Saudi gulf, right after Al
10 Qaeda got to the Sudan in 1992, 1993, Al Qaeda targeting the
11 United States. Jamal al-Fadl told you that they targeted the
12 United States when American forces were sent to Somalia.
13 Jamal al-Fadl told you that even as of 1996 he said that Al
14 Qaeda was targeting the United States even to the point that
15 they might target American embassies. And he told you about
16 some of the prominent members that were part of this idea, of
17 this conspiracy, including Usama Bin Laden, including Abu
18 Hafs, Abu Ubaidah, Abu Hajer, defendant Wadih El Hage.
19 The witness Kherchtou told you about how as far back
20 as 1992 that Al Qaeda viewed the United States as the enemy of
21 Islam. Kherchtou told you that he understood in 1993 that Al
22 Qaeda was targeting the United States because of the operation
23 in Somalia, and he mentioned some of the people who figured
24 prominently in this growing conspiracy. He mentioned Abu
25 Hafs, he mentioned Saleh, he mentioned Harun, and one of the
5455
1 people he mentioned who was in Somalia, who was a member of Al
2 Qaeda, was the defendant Odeh, as far back as 1993.
3 You have evidence of the existence of this conspiracy
4 to murder US nationals from the numerous Bin Laden statements
5 that we went through. Al-Fadl told you about the private
6 statements to Al Qaeda, but you have seen some of the public
7 statements: The August 1996 declaration of jihad, the March
8 1997 CNN interview, of course the February 1998 fatwah, and
9 the May 1998 ABC News interview.
10 You know that there was a conspiracy to murder US
11 nationals because of the way that the members of the
12 conspiracy responded to the presence of the Americans in
13 Somalia, that Abu Hafs went there, that Saleh went there, that
14 Harun went there, that Kherchtou helped facilitate the efforts
15 of some others who went into Somalia. The defendant Wadih El
16 Hage regarding the Stingers and the transportation of the five
17 people that we talked about yesterday. All of those actions,
18 as I said, reflect what the mind set was, reflected that the
19 common goal of the conspiracy was to attack nationals of the
20 United States. And, of course, the carrying out of the
21 embassy bombings. Yes, they are substantive crimes. They are
22 concrete acts. But they also reflect, again, the agreement of
23 people to pursue a common goal, to kill nationals of the
24 United States, again, regardless of membership in Al Qaeda.
25 The question is membership in the conspiracy.
5456
1 The defendant Al-'Owhali told Agent Gaudin that he
2 was trained by Al Qaeda camps, that he asked Usama Bin Laden
3 for a mission, that he was sent to Africa to carry out attacks
4 on an American target. Khalfan Khamis Mohamed, not a sworn
5 member of Al Qaeda but trained at camps in Afghanistan, worked
6 with people like Mustafa Fadhl, another prominent member of
7 this conspiracy.
8 You have the claims of responsibility as evidence of
9 the existence of the conspiracy, the claims of responsibility
10 that go through Baku, Azerbaijan, to numbers called by the
11 satellite phone to headquarters in Afghanistan, to the people
12 in London, where Khalid al Fawwaz is there to help disseminate
13 the claims of the conspiracy, an act in furtherance of the
14 conspiracy, because as I mentioned, one of the things that Al
15 Qaeda did was to try to publicize its activities as a method
16 of terrorizing people and as a method of recruitment.
17 What about membership in this conspiracy, in
18 conspiracy to murder people simply because they were United
19 States nationals? In addition to the defendants, and we will
20 talk about the defendants, the evidence overwhelmingly shows
21 that Usama Bin Laden was a member of this conspiracy. He's
22 the leader of Al Qaeda. He is somebody to set the agenda for
23 Al Qaeda and for others to target the United States. You saw
24 the reasons, the various reasons he gave why the United States
25 neat needed to be targeted, why American military officers
5457
1 needed to be killed, American civilians needed to be killed.
2 He is the person who lays out the goals of the conspiracy.
3 Harun is a member of this conspiracy. Harun is somebody who
4 went to Somalia in Mogadishu where the American forces were,
5 and he told Kherchtou about what it is that they tried to do.
6 Harun is the person who worked as Wadih El Hage's deputy,
7 somebody who was the communications officer, who went through
8 all those efforts to try to figure out how the group was going
9 to deal with the response to the cooperation of Abu Fadhl al
10 Makkee with the Americans. Harun carried out the bombing in
11 Nairobi. Harun rented the bomb factory. Harun cleaned out
12 the bomb factory and brought all of those items back down to
13 his house in the Comoros before he fled to the Al Qaeda
14 headquarters in Afghanistan.
15 Mustafa Fadhl is in this conspiracy. Mustafa Fadhl
16 is another person who was part of the East African cell of Al
17 Qaeda. Mustafa Fadhl carries out the new policy that Wadih El
18 Hage brought back with him on his visit to Bin Laden in
19 February of 1997. Mustafa Fadhl is the person who brings
20 Khalfan Khamis Mohamed into the jihad in March of 1998.
21 Mustafa Fadhl helps rent the bomb factory, and Mustafa Fadhl
22 flees with his wife and children to Afghanistan just five days
23 before the bombing.
24 Saleh is a member of this conspiracy. Saleh is one
25 of the people who went into Mogadishu, Somalia, to attack the
5458
1 Americans. Saleh is one of the people who left on August 6,
2 1998, the night before the bombing, the same night that the
3 defendant Odeh fled before the bombing.
4 I mention those people, ladies and gentlemen, because
5 when you see how these four people, among many others -- and
6 we have been through many names and I don't mean to limit the
7 membership list to this conspiracy just to the names that I
8 have listed for you. But when you see how just those four
9 people worked with these defendants as part of the conspiracy,
10 it becomes clear beyond a reasonable doubt the membership of
11 these four defendants in the conspiracies in which they are
12 charged, including Count 1.
13 Wadih El Hage. As we talked about yesterday, Wadih
14 El Hage is the person who facilitates the activities of Al
15 Qaeda. Every organization needs a facilitator, somebody who
16 takes care of the logistics. Wadih El Hage's participation in
17 this conspiracy dates back to when Wadih El Hage was in the
18 Sudan, when Al Qaeda was targeting the United States in
19 Somalia and had issued private fatwahs at meetings that El
20 Hage attended, saying that Americans had to be attacked
21 because of their presence in the gulf. He is in charge of the
22 Al Qaeda payroll. He makes efforts to get Stingers
23 transported from Pakistan to Afghanistan. He transports some
24 people from Sudan to Kenya at a time when the Americans are
25 targeting the Americans in Somalia.
5459
1 And then you know that his membership in the
2 conspiracy took a new form when El Hage was transferred,
3 effectively, from Sudan to Kenya in 1994, when he replaced
4 Khalid al Fawwaz as one of the leaders of the Nairobi cell of
5 Al Qaeda. That is a critical moment, ladies and gentlemen,
6 because you learned that El Hage replaced Khalid al Fawwaz
7 from Kherchtou. But there is other evidence that shows that
8 El Hage was the replacement. This was not a career move that
9 Wadih El Hage made because he was tired of Sudan. This wasn't
10 a coincidence that soon after Khalid al Fawwaz left to take
11 the heat off the group somehow Wadih El Hage decided that
12 instead of being involved in bicycles and sesame seeds in
13 Sudan, that he wanted to now start this charitable
14 organization, this German-run charitable organization in
15 Nairobi. That wasn't coincidence, that wasn't happenstance.
16 That was part of the conspiracy. Nairobi was a base. It was
17 a critical base of operations for Al Qaeda both before El Hage
18 arrived with respect to Somalia and then afterwards, as you
19 see from the new policy and of course the carrying out of the
20 embassy bombings. El Hage filled that role. He was the one
21 who came in to work with the cell, to work with people like
22 Mustafa Fadhl, to work with people like Harun, to work with
23 people like the defendant Odeh. And you saw the evidence of
24 him working with precisely those people. He lived with Harun
25 and he worked with Harun, and he had telephone conversations
5460
1 with Odeh, and of course there is evidence of other meetings.
2 He met with Abu Hafs, according to what Kherchtou told you.
3 He met with Abu Ubaidah, the military commander, people he
4 would lie about to protect later when the American government
5 would ask about these Al Qaeda members.
6 El Hage traveled to see Bin Laden in 1997 twice, well
7 after the war against America was public, and brought back
8 with him a policy that would militarize the cell in Somalia
9 dealing with Ethiopia, but the same cell once militarized,
10 after it was militarized, that would carry out the bombings.
11 And when his house was searched and when he was approached by
12 the Americans, he did exactly what Khalid al Fawwaz did. He
13 left Kenya to take the heat off of the Al Qaeda cell in Kenya.
14 And then when he testified before the grand jury he made plain
15 his membership in this conspiracy by lying to protect the
16 conspiracy, by protecting the conspirators from detection by
17 the United States so that they could carry on with the
18 activities that were part and parcel of the Al Qaeda
19 operation, both in East Africa and elsewhere, including in
20 Afghanistan.
21 You know that Wadih El Hage helped to get fake
22 passports for other people in Al Qaeda. We went through the
23 telephone conversations and we saw the letters, the coded
24 letters and the coded communications where El Hage and Harun
25 worked to get these passports, the life blood that we talked
5461
1 about on behalf of Al Qaeda. Fake passports that if done
2 right, help people like the defendant like Al-'Owhali to get
3 out of countries or, if not done right, leave it to defendants
4 like Odeh to get caught and unable to escape after
5 participating in terrorist activities.
6 You saw the coded letters that El Hage had. You saw
7 the coded references that he had in his address book, and we
8 will talk about some of them in connection with the perjury
9 counts. But Khalid al Fawwaz is not listed as Khalid al
10 Fawwaz, 94 Dewsbury Road, London, England, it is 94 Dewsbury
11 Road, Arlington, Texas. We will see some of those address
12 book references in his address book, with P.O. Boxes in
13 Khobar, Saudi Arabia, for a person that he knows lives in the
14 United States. There are any number of coded references for
15 Ali Mohamed, the surveillance trainer and the person who
16 himself had lied to protect the conspiracy in September of
17 1998. All of that is evidence of El Hage's participation in
18 the secret conspiracy, in the conspiracy that targets and at
19 the same time fears the United States, that requires people to
20 facilitate, to carry out the logistics, and, yes, if
21 necessary, requires the members of the conspiracy to lie to
22 investigating officials who are looking to uncover both the
23 membership and the existence of the conspiracy.
24 We talked about this briefly yesterday, but the fact
25 that Wadih El Hage engages in gem transactions and the fact
5462
1 that he may have been involved in the purchase of bicycles is
2 not to the exclusion of his participation in Al Qaeda. That's
3 exactly what Usama Bin Laden does. When he was in Sudan he
4 made roads, had a transportation business. He had other types
5 of business. But, as we talked about, it is precisely that
6 business that is part of the conspiracy. It finances the
7 activities and it provides a cover.
8 what I submit to you, ladies and gentlemen, is that
9 Wadih El Hage was to the gem business what Bin Laden was to
10 the sesame seed business, what the defendant Odeh was to the
11 fishing business. Those were things they did maybe to make
12 money, but those were things that Al Qaeda set them up in to
13 protect the conspiracy and to advance the conspiracy. What
14 motivates Wadih El Hage, what motivates Bin Laden, what
15 motivates Mohamed Sadeek Odeh is not the success of their
16 business but the pursuit of the common goal, to defeat the
17 number one enemy, the United States.
18 Again as we talked about, membership by way of bayat
19 is nowhere going to be found in the judge's instructions, so
20 that the question of whether or not Wadih El Hage took the
21 bayat is not a question that has to be answered. The question
22 is whether or not he was a member of the conspiracy.
23 Remember, the bayat is something that is very private. It
24 involves a handful of people. The evidence of membership in
25 the conspiracy does not come from the bayat, it comes from who
5463
1 people trusted to work with and to speak with and to be
2 around. The witness Kherchtou explained it as such. He said
3 it was obvious. You can't say to a member who is working with
4 you in the same company are you from this company or not. I
5 mean, the question you can talk about all the issues about Al
6 Qaeda among us, discussing whatever. Kherchtou and the others
7 knew that they could trust Wadih El Hage. Kherchtou and the
8 others knew that they could have meetings with Wadih El Hage.
9 They could talk about Al Qaeda business with Wadih El Hage.
10 He was trusted in the operation of jihad. And not because he
11 wore a T-shirt that said I took bayat, but because everybody
12 knew who they could trust and who they couldn't. Remember the
13 story he told you about Abu Hafs, the military commander? Abu
14 Hafs' military command told Kherchtou and Wadih El Hage he
15 trusted them to take care of his travel arrangements that
16 involved his alias and fake passport, but he didn't even trust
17 Abu Mohamed al Amriki, the person that the group trusted to
18 train others in surveillance. That type of operational
19 connection, that type of association, ladies and gentlemen, is
20 powerful evidence of a person's membership in a secret
21 conspiracy like Al Qaeda.
22 The defendant Odeh. The evidence clearly establishes
23 that the defendant Odeh was an Al Qaeda member as far back as
24 1992. The witness Kherchtou told you that he knew that Odeh
25 was a member of Al Qaeda. And, by the way, not because he was
5464
1 there for the bayat. You know from what Odeh himself admitted
2 to the FBI that he was a member of Al Qaeda, that he was
3 trained in Al Qaeda's camps, in ideas like explosives,
4 learning how to calculate how much and what type of explosives
5 to carry out an operation. And Kherchtou told you that the
6 defendant Odeh, who he knew as Marwan -- again, the aliases
7 and the codes are all evidence of the existence of the secret
8 conspiracy -- was a member of Al Qaeda who went to Somalia.
9 Remember, he described some of the other members that went to
10 Somalia, such as Harun and Saleh. You know that Odeh himself
11 admitted to the FBI that he went to Somalia because he was
12 ordered to by Usama Bin Laden, and that he was there to train
13 a group that was ideologically aligned with Al Qaeda.
14 Ideologically aligned, which Odeh told the FBI meant that the
15 group was concerned that the United Nations was going to take
16 away their power, the same group that Odeh told the FBI got
17 into a fire fight with the United Nations. And Odeh was in
18 Somalia and met with Abu Hafs right after Abu Hafs had come to
19 an understanding with Farid, the warlord in Somalia, to work
20 with the group to attack Americans, which lines up exactly
21 with what the witness Jamal al-Fadl told you about Abu Hafs
22 going to Somalia and trying to work with the local groups, the
23 local tribes there.
24 Like many prominent members in Al Qaeda, the
25 defendant Odeh was given a business. He told the FBI that Abu
5465
1 Hafs, the military commander, set him up in that business.
2 But it was an Al Qaeda business, the fishing business that he
3 had in Kenya. Remember the testimony of Mr. Mjitta, the
4 person who worked in the fisheries industry? He remembered
5 the name of the boat, al Mandera, which is actually one of the
6 names in the records that you see in Wadih El Hage's files,
7 and that they were offloading at night, which was unusual and
8 forbidden, and that the defendant Odeh had a license to move
9 but not to catch fish. Again, a perfect cover to carry out
10 jihad operations.
11 The intercepted telephone calls show that the
12 defendant Odeh was in touch with El Hage immediately after El
13 Hage returned from his trip to see Bin Laden in February 1997.
14 And there was discussion in that conversation about how
15 Mustafa Fadhl, the other member in this conspiracy we talked
16 about, was going to come up and meet with El Hage. And then
17 you see the documents thereafter where they implement the new
18 policy to militarize the cell. And you saw the document that
19 we talked about yesterday and this morning, about how this was
20 not part of a relief organization, this was part of the jihad.
21 One of the other things that Odeh mentioned to the
22 FBI was that, like the others in Al Qaeda, Odeh had heard
23 discussion about Abu Fadhl al Makkee cooperating. The
24 evidence makes crystal clear, ladies and gentlemen, including
25 even from what Odeh was willing to admit to the FBI, that Odeh
5466
1 was well aware of the fatwahs that Bin Laden had issued,
2 calling on people to kill American citizens. Here the bayat
3 and Odeh's membership in Al Qaeda, while again not alone
4 sufficient to establish membership in the conspiracy, is
5 powerful evidence of membership in the conspiracy, being a
6 member of the group that is at the core of this conspiracy,
7 and being in particular a member of the cell of the group that
8 is at the core of this conspiracy, the same cell, the
9 implementers that Harun described,