Note: Today the Court Reporter reissued the transcript for Day 40 to correct page numbers. Download the corrected version: http://cryptome.org/usa-v-ubl-40.htm
8 May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 41 of the trial, May 8, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
5808
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 8, 2001
10:00 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
5809
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
5810
1 (Trial resumed)
2 (Jury not present)
3 THE COURT: I have received a letter from the
4 government on the timing of the penalty phase, and we will
5 take that up at 4:30.
6 MR. BAUGH: We would join in the government's
7 request.
8 (Jury present)
9 THE COURT: I am not sure what post May 17, May 19
10 means.
11 (Jury present)
12 THE COURT: Good morning.
13 JURORS: Good morning.
14 THE COURT: Mr. Cohn on behalf of Mr. Al-'Owhali.
15 MR. COHN: May it please the court, ladies and
16 gentlemen of the prosecution, colleagues at the defense table,
17 Mr. Al-'Owhali.
18 Listening to Mr. Ricco yesterday, as he discussed
19 sleepless nights, it became apparent to me that I ought to
20 start this discussion with two words and what they mean. The
21 first word is in communicado, which Mr. Ricco said you must
22 all understand, and as he said that, Ms. Gasiorowski, the
23 young blond lady over there, the brains of our operation, said
24 I'm not sure, some of them looked like they didn't. I thought
25 I would start because it is important to me later on that you
5811
1 do understand what it means. In communicado means simply
2 being held isolated and unable to communicate with anyone.
3 That is the meaning of in communicado, at least insofar as we
4 are going to discuss it.
5 The other word I thought we would talk about,
6 seemingly having nothing to do with this case, is the word
7 serendipity. Serendipity is when you find something of value
8 at an unexpected place, at an unexpected time. Having spent
9 the same sleepless nights as Mr. Ricco, I sat there even
10 yesterday, wondering what I was going to say to preface my
11 remarks about what is really important about the case. And
12 although I was scheduled to follow Mr. Ricco, and had he been
13 somewhat less prolix, I would have gotten up yesterday if we
14 had finished a half hour earlier. I still didn't really know,
15 I didn't have a handle on what to say to make you understand
16 what it is that from the standpoint of Mr. Al-'Owhali's case,
17 from Mohamed's case, I think you have to do, because it is
18 somewhat different than the other cases here. This is a joint
19 trial and the judge will tell you that it is four individual
20 trials, and technically that is true, but in reality, every
21 trial here impacts on the others. For instance, yesterday Mr.
22 Ricco, in referring to everybody fleeing, said, and that young
23 man over there, talking about Mohamed, didn't flee because he
24 didn't have a family, he's a young man. I got to tell you I
25 was somewhat annoyed by that. After all, if Mr. Ricco in the
5812
1 reaches of the night when we both weren't sleeping had called
2 me and said Fred, I'm going to say this about Mr. Al-'Owhali,
3 do you mind, I would have said yeah, do you have to do it, and
4 if he said yeah, he did, because it was for his client and he
5 represents his client, I would have understood that. And if
6 he didn't he might have said well, if I don't have to do it
7 then, you know, I don't need it, I'll forgo it.
8 That's the serendipity that I am talking about,
9 because after getting annoyed I realized that I had found
10 something of value in a strange place. Because if he could
11 make that mistake, and make a judgment not knowing
12 Mr. Al-'Owhali's case, having focused on his own case, what is
13 that to say about you who didn't know the law, who haven't yet
14 heard the law on conspiracy and on statements made by
15 defendants and their voluntariness?
16 MR. RICCO: Your Honor, I object and request that my
17 understanding be stricken from the record.
18 THE COURT: I think that the ruminations of what it
19 is that Mr. Cohn might have said to Mr. Ricco is really quite
20 beside the point, and the objection is sustained.
21 MR. COHN: What does it mean about you, who don't
22 know the case, and what you have heard is testimony in this
23 courtroom that Mohamed said that he did it, that he
24 essentially assisted in the bomb truck, went out, put up flash
25 grenades, and the bomb went off. And you heard other things.
5813
1 What does it say about you, because how can I stand up here in
2 the face of that.
3 The judge has told you, don't formulate your opinions
4 yet. But what I learned yesterday serendipitously is that
5 really I have to confront that issue with you and tell you
6 something that we generally don't say, that I would be
7 surprised if there were two of you in this jury box who did
8 not at least surmise and assume that Mr. Al-'Owhali is guilty.
9 Does that mean that's a legal opinion? No. Does that mean
10 that the presumption of innocence has been stripped from him
11 at this point? No. But I would be a fool, and not the kind
12 of fool that Mr. Ricco talked about yesterday if I did not
13 recognize that.
14 So what I wanted to talk to you about first is that,
15 and tell you that my job here is to make you ignore that
16 assumption and focus on the law. Not on justice, not on
17 morality, but the law. People sometimes use, and the judge
18 may use, or may have in the past -- it's been so long --
19 called you the judges of the facts, and essentially that you
20 are. In most cases as judges of the fact it means that you
21 find out what is the truth and what isn't, what are the
22 probabilities and what aren't, and you apply those facts and
23 come up with a verdict of guilty or not guilty as to the
24 defendant.
25 In this case I am asking you to be more judges than
5814
1 judges of the fact. The judge will tell you the law and you
2 will apply it. I don't mean to intrude on that and if I did I
3 would be brought up short without an objection from anybody.
4 The judge will charge you a couple of things. He
5 will charge you on the law of conspiracy, which is highly
6 complex and which I don't speak for any other lawyer here but
7 which I at least understand imperfectly, and I am not sure
8 that anybody can grab it all at once. He will also charge you
9 on something called voluntariness. He will say that if you
10 find that a statement is made involuntarily, you may give it
11 such weight as you wish, if any. That means you may disregard
12 it altogether.
13 What I am going to do this morning is talk to you
14 first about the conspiracy charges, all four of them, and I am
15 going to ask you to assume that what you heard from
16 Mr. Al-'Owhali, allegedly, through the lips of Mr. Gaudin, are
17 the facts. They are evidence, and I am going to talk to you
18 about why I don't believe that you should convict on any of
19 the conspiracy counts because they are insufficiently pleaded
20 by the government. I am not going to stand here and contend
21 that there is evidence in this case, or lack of evidence, that
22 Mr. Al-'Owhali did not participate in the bombing. What I am
23 going to say to you first is that even with what he said,
24 given the way the government has pleaded this case, you must
25 acquit on the conspiracy counts. Then what I am going to talk
5815
1 about is the voluntariness of the confession, ask you to
2 consider whether it was involuntary, and, if involuntary, ask
3 you to disregard it. And if you disregard it, then you must
4 find not guilty because there is no other evidence of any
5 import than the statement of Mr. Al-'Owhali against his own
6 interest. We will talk about that.
7 That's real hard. You know, I mean, two defense
8 lawyers so far have stood up and told you you need courage,
9 it's an American jury. I have a great deal of faith that you
10 can do this, if you must know the truth. But that's why I say
11 that this is a matter of law and not morality. This is a
12 matter of law and not justice. If the judge charges you as I
13 have said he would, then you must consider under your oaths
14 whether or not you can do this. Can you? I don't know. Will
15 I know if you don't? Probably not. But that is what I am
16 asking you to do.
17 The first part, therefore, is the conspiracy. What
18 is a conspiracy? You have been told before and I will tell
19 you again, insofar as it matters for this part of the
20 discussion. A conspiracy is an agreement between people to
21 commit an illegal act, and in most cases something is done by
22 a conspirator to further that act. It is not the crime in and
23 of itself. You can have a conspiracy to commit murder without
24 completing the murder. The murder, if it exists, is a
25 separate crime.
5816
1 Under the evidence, using Mr. Al-'Owhali's statement,
2 there is evidence that Mohamed joined some conspiracy, and
3 that conspiracy is a conspiracy to bomb the Nairobi embassy.
4 Well, isn't that enough? The answer to that is no, it's not.
5 The government must prove beyond a reasonable doubt that
6 Mohamed joined the conspiracies as charged, and the
7 conspiracies charged are all broader than that. The
8 indictment says in the preamble, or introductory portion, at
9 all times, at all relevant times, from in or about 1989 until
10 the date of filing of this indictment, an international
11 terrorist group existed which was dedicated to opposing
12 nonIslamic governments with force and violence.
13 You know from the statement that Mohamed was born in
14 1978, '77. At the time this terrorist organization was formed
15 he was 12. Did he join that conspiracy then? Hardly likely.
16 We will talk about the relationship backwards, because the
17 judge at some point will tell you that of course somebody who
18 joins a conspiracy later, after its beginning, adopts the
19 prior acts of the conspiracy, if they should have known about
20 them, if they did know. We will talk about that more.
21 That's the introduction, it's not really the
22 conspiracy. They have charged four conspiracies, and each
23 conspiracy count starts with the following language. I've got
24 this in two forms. The first form is to show you with all the
25 extra stuff in it that we are not misquoting, and the second
5817
1 way we have dealt with it is to extract the stuff so you have
2 the meat and here it is. It says:
3 From at least 1991 until the date of filing of this
4 indictment ... in Afghanistan, the United Kingdom, Pakistan,
5 the Sudan, Saudi Arabia, Yemen, Somalia, Kenya Tanzania,
6 Azerbaijan and elsewhere ... I actually pronounced Azerbaijan,
7 that's terrific -- Mohamed Rashed Daoud Al-'Owhali, ...
8 together with other members and associates of Al Qaeda,
9 Egyptian Islamic Jihad, and others known and unknown to the
10 grand jury, unlawfully, willfully and knowingly combined,
11 conspired, confederated and agreed to kill nationals of the
12 United States.
13 Every count starts with that and every count has the
14 same overt act. How are they different? They are different
15 because the objectives of each conspiracy, says the
16 government, are different, and they have charged the
17 conspiracy four different ways.
18 If you believe the introduction, Mohamed was 14 at
19 the time, from at least 1991, and my guess is you don't really
20 believe that he was a knowing member of Al Qaeda or an
21 associate or doing anything in support of whatever they claim
22 that Mr. Bin Laden was doing in those particular years. But
23 it's important that a person joins the conspiracy that he is
24 proven to have joined and that if he is not in a position to
25 appreciate that other conspiracy and he joined some other
5818
1 conspiracy, he is not guilty of the conspiracy charged. That
2 is maybe hard for you to accept. My heavens, man said he
3 participated in the bombing. He assisted, he rode in the
4 truck, he went out with flash grenades. How can we do that?
5 Maybe you can't. But if you accept my logical arguments, then
6 perhaps you must.
7 In addition, if the conspiracy charge is in fact a
8 collection of smaller conspiracies, multiple conspiracies, and
9 the judge will charge you about multiple conspiracies, then
10 you must acquit. What does that mean? I will take a look at
11 it later in a different way. But let's take a look at the
12 objectives of the conspiracies charged in each of the four
13 conspiracy counts. This is what is charged in Count 1. It
14 was a part and object of said conspiracy that the defendants
15 and others, known and unknown, would and did murder United
16 States nationals.
17 Seems simple enough. Does it encompass this
18 particular act? Well, US nationals were killed, and my guess
19 is that one could logically argue that if you intend to bomb
20 the United States Embassy in the middle of the day you intend
21 to kill US nationals. But does this mean that was part of
22 this conspiracy? Under this object, any US national anywhere
23 killed anyhow is part of that conspiracy. Is that what
24 Mohamed Al-'Owhali joined? Did he intend that? Was he in a
25 position to know that this conspiracy had lasted for years,
5819
1 according to the government's theory, and that they were going
2 to kill nationals everywhere, in all these other countries
3 that we talked about, Azerbaijan and Somalia? Here is a man
4 who at the time of the bombing was 20 years old. As we will
5 talk about later, he didn't know anything about the object at
6 the time until he was actually in place in Kenya after about,
7 I think, the 3rd of August of that year. He knew that there
8 was a mission, he was told he was doing a mission, but did he
9 know about all this other stuff? Is this one conspiracy?
10 Think about it. We are going to talk about it later in the
11 context of the other conspiracies that are charged, because
12 Count 2 says:
13 It was a part and objective of said conspiracy that
14 the defendants and others, known -- sorry, we did the typo,
15 not the government -- known and unknown, would and did (1)
16 kill officers and employees of the United States and agencies
17 and branches thereof while such employees were engaged in and
18 on account of the performance of their official duties, and
19 persons assisting such employees in the performance of their
20 duties, in violation of the section of law, including
21 members -- and here's the other part: Including members of
22 the American military stationed in Saudi Arabia, Yemen,
23 Somalia and elsewhere, and employees of the United States in
24 Nairobi, Kenya and Dar es Salaam; and (2) kill internationally
25 protected persons as that term is defined.
5820
1 Look, the government had a choice. How do you charge
2 this indictment? They made that choice for reasons that are
3 known to the government. Do you think on the evidence that
4 you saw here that Mohamed Al-'Owhali knew anything or joined
5 any conspiracy or there is any evidence today that he was
6 going to kill American military stationed in Saudi Arabia,
7 Yemen and Somalia?
8 Let's talk about Somalia briefly. It's the only
9 other evidence in the case of other stuff. It is 1993. He
10 was 16 and still in school. There is no evidence or
11 suggestion by the government that he participated in training
12 in Somalia. There is no indication that he was in Somalia.
13 Did he join that conspiracy?
14 Look, it's hard, folks. He said he participated in
15 the bombing. And you say we're Americans, and even if we
16 weren't Americans, there are a serious amount of dead people
17 out there, how can we do that? The way you can do it is to
18 follow the law. I am not saying if you follow the law you
19 will do it. It's your choice after listening to the evidence,
20 after analyzing the evidence, after listening to me, to Mr.
21 Fitzgerald after he stands up for his rebuttal summation. But
22 can you do it? Yes. Will you do it? Only your conscience
23 will tell you.
24 Count 3. It was part and object of said conspiracy
25 that the defendants and others, known and unknown, would and
5821
1 did: (1) bomb the embassies in Nairobi, Kenya, and Dar es
2 Salaam, Tanzania, and employees of the American government
3 stationed at those embassies; and (2) attack American military
4 facilities in the gulf region in the horn of Africa and
5 members of the American military in those other places again.
6 This is the clearest indication that the government
7 had that if they wanted to they could charge a conspiracy to
8 bomb the embassy in Nairobi, and maybe under the evidence,
9 under a stretch of the evidence Tanzania, because you may
10 remember that in Mr. Al-'Owhali's statement he said that he
11 learned of the Tanzanian bombing when he learned about his own
12 mission, which was about August 3. So at least there is some
13 evidence that he knew about it and maybe he joined that
14 conspiracy if it was retroactively.
15 But that's not the conspiracy they charged.
16 Everywhere you turn in this indictment they charge this
17 overreaching conspiracy, which may have something to do with
18 Mr. Bin Laden, it may have something to do with other members
19 of that conspiracy, if they were, may have something to do
20 with the shura council of Al Qaeda. But it doesn't have
21 anything to do with what the evidence shows Mr. Al-'Owhali
22 knew that he joined or should have known that he joined. When
23 I say should have known, because the judge will charge you at
24 some point, you can't stick your head in the stand. You can't
25 be an ostrich, to take somebody else's case for a second, and
5822
1 ignore something you should have known, and say you didn't
2 know, you closed your eyes to the facts. There was no
3 evidence here of Mohamed Al-'Owhali before May 1998, and the
4 only evidence of that, and we will talk about that in a
5 second, is that in May he went to Yemen. Nothing about
6 anything that he did there. Some evidence that he was trained
7 in camps to fight in either Azerbaijan or Afghanistan against
8 the remnants, the leftovers, the nominees of the then Soviet
9 Union. But that didn't have anything to do with this, killing
10 Americans. It had to do with defending his faith at that
11 particular time, against the enemy of his faith at that
12 particular time.
13 Count 4. It was part and an objective of said
14 conspiracy that the defendants would and did bomb American
15 facilities anywhere in the world -- anywhere in the world,
16 including, not limited to but including the American embassies
17 in Nairobi, Kenya and Dar es Salaam, Tanzania, and again
18 attack military installations and all those other places; and
19 (3) -- there is a third one this time -- engage in such
20 conduct with a result of such conduct directly causing the
21 death of persons in violation of Title 18, etc.
22 Once again, ladies and gentlemen, I am not suggesting
23 to you that there is no credible evidence that he participated
24 in the bombing. I am telling you that the government for its
25 own reasons hasn't charged the right conspiracy. Once again,
5823
1 I keep saying it over and over because it preys on my mind, I
2 don't know how you ignore that. But my suggestion is that
3 after you hear the law you at least know that you are going to
4 have to try.
5 Mohamed Al-'Owhali was born on January 17, 1977. I
6 knew I would get the right date. You see here a little time
7 line that starts with the date of his birth. It doesn't mean
8 anything. It is just a graph that shows when it was he is
9 alleged to have started doing anything with this conspiracy,
10 and you will see that in May of '98 he was present in Pakistan
11 during an ABC News interview, and in July he went from Karachi
12 to Nairobi and he got there, you may remember, a few days late
13 because he had missed his plane. In between, essentially
14 there is nothing of import as to Mohamed Al-'Owhali. How is
15 he supposed to know about the scope of this conspiracy? The
16 government seeks to hold him criminally responsible for the
17 activities of people long before he can be held to account for
18 them.
19 On July 31, he traveled under a false passport to
20 Karachi. What evidence is there that Mohamed knew of greater
21 conspiracies? Frankly, there is none at all. It's all
22 innuendo. Do you think that Usama Bin Laden confided in this
23 young man who was then 20 years old, about the scopes and
24 desires and his tactics? Assuming that everything the
25 government tells you about Somalia is true, just assuming that
5824
1 for the moment, what makes you think this young man knew
2 anything about it? Remember, Mohamed was not a member of Al
3 Qaeda; it was never suggested that he was. He did not make
4 bayat. He did not know about his mission until just before
5 the bombing, and he didn't know the object -- when he was in
6 Pakistan. He didn't know the object of it until he came to
7 Nairobi.
8 Mr. Karas told you, and I think I am quoting, if not
9 it's close, he said he did not make bayat because he did not
10 want to wash cars, he wanted to deliver bombs. That bit of
11 sarcasm is cute but it doesn't advance our search here much.
12 I mean, you know that Mohamed was a defender of his faith. He
13 wanted a military mission to defend it. It didn't matter what
14 military mission it was in the context of the scope of the
15 conspiracies, he wanted a mission. If they had told him to go
16 to some other place he would have considered that. He went
17 where he went. Did he know the scope of the entire
18 conspiracy? Did the fact that he didn't make bayat and wanted
19 a military mission to defend his faith, did that make him know
20 about the scope of this conspiracy, about the motives of Bin
21 Laden? It didn't. It's a stalking horse, as are many pieces
22 of the collateral evidence here. It may mean that he joined a
23 much more limited conspiracy that the government is yet to
24 define. The government doesn't charge it that way. You
25 remember, the government introduced some evidence of Harun
5825
1 that Mohamed was bragging about something that happened in
2 Somalia. Is it proof of something that he knew or should have
3 known and adopted? It isn't.
4 How many conspiracies have we? We don't know. But
5 in each one that is charged here, there are clearly more than
6 one, and the only one that he would be responsible for is the
7 bombing of the embassy. Since that is not charged as a single
8 conspiracy, I would suggest that he has to be acquitted of the
9 conspiracy counts.
10 Look at it in a way as a wheel with a hub and spokes
11 at the rim. At the hub, there are people who know everything
12 that is doing, perhaps Bin Laden and some of his closer
13 associates. At the end of the spokes on the rim, at the end
14 of each spoke there is another little conspiracy, a conspiracy
15 perhaps for Somalia, a conspiracy perhaps for the Kenyan
16 bombing, a conspiracy for something in Yemen, a conspiracy for
17 something in Azerbaijan. It is the government's obligation to
18 prove that all of the alleged conspirators at the end of the
19 spokes should have known from the nature of the conspiracy
20 about what is happening around, or at least that they should
21 have been able to surmise it.
22 Classic example is in a drug conspiracy. In a drug
23 conspiracy you have the big dealers in the beginning, in the
24 middle, and at the end of each spoke you have a drug spot.
25 Clearly they know at the end of each spoke you have other drug
5826
1 spots and they should have known that. If they don't know or
2 shouldn't know, there is more than one conspiracy. That is a
3 question of fact for you as the judges of the fact to struggle
4 with in this case.
5 There is another way of looking at this. What
6 conspiracy did he join, given the best view of the credibility
7 of the evidence as presented by the government? We will talk
8 about the credibility and how they got it in a little while.
9 Could he have joined a conspiracy involving the events in
10 Somalia? Certainly not, and the judge is going to tell you
11 there are a number of factors you have to consider. One is,
12 was there a conspiracy, did it exist, what was the scope, and
13 the other is did the defendant join that conspiracy. That is
14 what this is about. This is about joining a conspiracy. What
15 did he join? He could only join what he knew about. He can't
16 join what he doesn't know about.
17 What could he have joined? What did he know? In his
18 statement, which we are still discussing for the purposes of
19 the conspiracy law, he said there were four groups in a cell.
20 Here is the structure of an Al Qaeda cell, and you got that
21 from Fadl. There is the intelligence section, the planning
22 and preparation section, the administration section and the
23 execution section. You know that Mr. Al-'Owhali had to be in
24 the execution section. He is not in any of the planning
25 sections.
5827
1 There is evidence in the case, and I forget where,
2 that the execution section doesn't do anything except do the
3 job, and in this case die, or is supposed to die.
4 We give you the trial transcript page only because we
5 want to make sure that you know that we are not misstating the
6 evidence, and there are times when my recollection may vary
7 with yours or with Mr. Karas. It is your recollection that
8 controls. Nobody, I am sure, has misstated the evidence
9 knowingly, although there are times when the government's
10 recollection, I suggest, is at fault, and we will talk about
11 that too.
12 In a real way, Mohamed was the most minor participant
13 in this event in terms of what we knew. Remember, he reported
14 to Azzam, who died, and Azzam knew about the mission, there is
15 evidence in the case, months before, and what the mission was.
16 What conspiracy did Mohamed actually join? Could he have
17 known the full scope of the conspiracies as they are charged,
18 or was he in a position in which he could not have known, or
19 should have known even if he wasn't told?
20 Remember how decisions are made in Al Qaeda. This
21 is, I guess, also from al-Fadl. There is the emir, and then
22 there is the shura council. Underneath the shura council are
23 the various committees. I guess the one that would be in
24 control of this one is the military council. These are all Al
25 Qaeda members. They are the ones making decision. Beneath
5828
1 all them are the other Al Qaeda members who aren't on
2 committees, they just take orders, and who don't formulate
3 policy. Somewhere else are the non-Al Qaeda members, who the
4 government calls associates. What did he know? What could he
5 know? Not much.
6 You remember the statement by Mr. Odeh that is in
7 evidence, Government's Exhibit 6, and it is written in the
8 form of a 302, a report by Mr. Anticev. It was put into
9 evidence by Mr. Odeh's counsel. Odeh told people, told
10 Anticev that there were two classifications of people in the
11 bombings. One was intelligence and planners, the others who
12 did the bombing itself, who were good Muslims but did not have
13 the skills to make themselves otherwise useful.
14 Where is Mr. Al-'Owhali in all this? What did he
15 join? The planners, the knowers --
16 MR. RICCO: Your Honor, objection, based upon --
17 THE COURT: The jury has been told and will be told
18 again that statements made by defendants to law enforcement
19 after their arrest may be considered only with respect to the
20 person making the statement. Therefore, what Odeh said to law
21 enforcement is something you may consider with respect to
22 Odeh. It is irrelevant with respect to Al-'Owhali.
23 MR. COHN: The planners, the knowers, the people who
24 were to continue in this conspiracy if in fact one overarching
25 conspiracy existed, all fled. Listen to Mr. Karas, who said,
5829
1 quote, and this is at 5267, lines 16 through 18:
2 This is what I was saying earlier, ladies and
3 gentlemen. You see the participants in this case come up
4 early. They are participants in the conspiracy to murder US
5 nationals.
6 The government may say I am taking that out of
7 context, but it's the truth. Mr. Al-'Owhali did not come up
8 early, Mr. Al-'Owhali did not take part in that conspiracy.
9 It is fact that United States nationals were killed. It is
10 not a fact that the conspiracy that he joined, if you take the
11 evidence as it is presented, was to kill United States
12 nationals everywhere, any time, anyhow.
13 The government also said during its summation things
14 about motive and how you knew that Mr. Al-'Owhali's motive was
15 the same as Mr. Bin Laden's. The government said at page
16 5336, lines 4 through 17:
17 You know that Bin Laden had the headquarters in Sudan
18 up until some point in 1996 when he goes to Afghanistan and
19 issues the declaration of jihad. What he tells you in this
20 statement on CNN is that he blames the United States
21 government for putting pressure on the Sudanese, for driving
22 him out of Sudan and into Afghanistan. He takes note of the
23 fact that part of the pressure was in removing the diplomatic
24 presence from Khartoum and sending it to Nairobi. In March of
25 1997 Bin Laden is keenly aware of that move by the United
5830
1 States, and I submit to you, says Mr. Karas, it provides a
2 powerful motive that Bin Laden had to hit the American Embassy
3 in Nairobi in 1998 to get back to the United States for its
4 diplomatic pressure on the Sudan that caused him to have to go
5 to Afghanistan.
6 The government then refers to an obscure part of
7 Mr. Al-'Owhali's statement that some of the people who were at
8 the embassy had been in the Sudan, and equates that therefore
9 with adopting and knowing of Mr. Bin Laden's motives
10 altogether. The motives that they ascribe to Mr. Bin Laden,
11 which they need not prove beyond a reasonable doubt here
12 because he is not on trial, are very sophisticated motives
13 with long-range policy plans, long-range objectives, and maybe
14 it is, maybe it isn't. But the fact that there were some
15 people who had been in the Sudanese embassy and therefore
16 were, if you believe the statement as it is given, and we will
17 talk about that in a bit, proper objectives for the bombing,
18 is not the same. It does not mean, it doesn't come close to
19 meaning that Mohamed knew about the objectives of the entire
20 conspiracy, or adopted them, or approved them, or disapproved
21 them.
22 If there is a reasonable view of the evidence, the
23 evidence that I am asking you to consider, which I will soon
24 tell you you can't consider, if you can understand that kind
25 of legal jujitsu, was at best a core, a central hub conspiracy
5831
1 which may have included the shura council, members of Al Qaeda
2 to implement, and subconspiracies that were constructed to
3 implement it. But whether or not those subconspiracies were
4 accurately charged here is a question for you. Had the
5 government charged Mr. Al-'Owhali in one of those
6 subconspiracies narrowly drawn, then if you accepted the
7 evidence you could convict him. But the government having
8 chosen to include him in conspiracies which were beyond him, I
9 suggest to you you cannot.
10 I now turn to the reason why you must acquit him of
11 all the charges no matter how reluctant you are to do it, and
12 if you do that, you don't even have to get to my arguments
13 about multiple conspiracies. Here are some general issues I
14 want you to keep in mind.
15 Mohamed was, according to the only testimony offered,
16 kept in the custody of the Kenyans, and no Kenyan witnesses
17 have been presented to you. I will make the reason for that
18 apparent in a second. The conditions under which the Kenyan
19 authorities kept suspects were extreme, and you have evidence
20 of that from Mr. Kherchtou, and we will talk about that in a
21 minute and what it means. You don't know precisely what
22 Mr. Al-'Owhali said to Agent Gaudin because it was through an
23 interpreter, who has not testified; and second because Agent
24 Gaudin's testimony is so obviously biased that you can't rely
25 on the accuracy of even what he presents to you that Mohamed
5832
1 said.
2 Mohamed was arrested on August 12, 1998, at
3 approximately 10 a.m. He was arrested by Kenyan CID members.
4 The FBI agents, including Gaudin, conveniently stayed in the
5 truck, and we do not have a clue as to what was said to
6 Mr. Al-'Owhali in that room when he was arrested by Kenyan
7 members of the CID five days after 200 of their countrymen had
8 been killed and 5,000 wounded. And no one has been presented
9 by the government to tell you what it was. Do they have an
10 obligation to bring you that witness? As a technical matter,
11 no. The indictment isn't dismissed because of it. But the
12 judge will tell you that if they have control over a witness
13 and they don't bring him, you can consider whether or not what
14 the witness would have told you hurts the government's case,
15 is not good. Does it mean that? No. But why haven't you
16 seen one Kenyan police officer in this case, where he was kept
17 in Kenyan police custody for 10 solid days before he made the
18 statement that appears before you? Particularly after you
19 heard Kherchtou, and I will talk about that.
20 When he was arrested, he was injured. These are the
21 pictures of his injuries. None of them are life-threatening.
22 All of them were probably uncomfortable. We show them, not
23 for any plea for sympathy. There are a couple of reasons.
24 One, to show you how he looked at the time, and we will get
25 back to that. The other is, when you are kept in communicado
5833
1 and you hurt from injuries and you are not getting medical
2 attention -- that's what he looked like, ladies and gentlemen,
3 not what he looks like today. We will get to that later.
4 That discomfort leads to having your will overborne. By
5 itself is it a lot? Probably not. But when you look at
6 involuntariness you have to look at all the conditions.
7 On August 22, 10 days later, inexplicably, if you
8 believe Agent Gaudin, he agreed to speak with Agent Gaudin.
9 In the intervening time he was kept in isolation, except for
10 interviews as follows: On the day he was arrested, 12 a.m.,
11 and again -- I am sorry, 10 a.m., and again in the afternoon
12 with an interpreter behind a blanket. Listen to this. They
13 hid the interpreter behind the blanket. I mean, if that's not
14 ominous, what is? You have been arrested, you don't know what
15 you've been told. After that he waited alone for 18 hours,
16 until the 13th around noon, where he was interviewed for a few
17 hours.
18 The government may say to you well, the interviews
19 weren't onerous, he was given food, he was allowed to pray.
20 It's not the interviews that were onerous, it's the isolation.
21 It's the isolation of sitting and waiting and wondering what's
22 to become of you in a place where it is clear nobody thinks
23 well of you.
24 You may say who cares, he did what he did, why should
25 we worry about it? We do because of the law. Because the
5834
1 bottom line is, this is something not about morality, not
2 about justice, but following the law. Justice is something
3 else that we may or may not get to here, but you have to
4 follow the law.
5 After the interview on the 13th, he waited alone
6 again for about 24 hours until he was interviewed again at 3
7 or 4 p.m. on the 14th. From that time on, on the 15th and on
8 the 16th, there were no interviews. Fifty or 60 hours sitting
9 alone in a cell. We will talk about the conditions of that
10 cell and what we know and what we can surmise in a few
11 minutes. But just talking about the silence, the inability to
12 communicate to anybody, the fear that anybody has to feel.
13 Well, on the 16th, he did have a visitor. Agent
14 Gaudin went and brought him some milk sometime in the middle
15 of the night. Why is that important? It is important for a
16 couple of reasons. One is that it shows that Agent Gaudin had
17 access, and he told you at various times during his testimony
18 that he was not in control, Kenyan authorities had control of
19 the custody. But he had access. The other reason he went is
20 because he wanted Al-'Owhali to know that he only had one
21 friend. He only had one friend. If anybody was going to save
22 him from the Kenyans, it was Gaudin.
23 The 17th. He was interviewed for two or three hours
24 at about 11:00. On the 18th, no interview. On the 19th, no
25 interview. Fifty hours, more or less. I suppose the milk
5835
1 lasted a long time. On the 20th, there was the identification
2 parade for one hour. Gaudin was present. We will talk about
3 the identification parade when we talk about the corroboration
4 the government offers you and why. And on the 21st he was
5 interviewed for two hours, and the next day he gave a
6 statement.
7 We know something about the conditions that Kenyans
8 afforded suspects in the bombing, and I caution you that this
9 is not evidence of Mr. Al-'Owhali's conditions particularly,
10 but they are evidence of somebody in similar circumstances,
11 and we will talk about what evidence we have that connects
12 them. Listen to the words of Mr. Kherchtou, and I am not
13 quoting but these are the conditions of confinement that he
14 testified to. He was kept in other small room. He had other
15 criminals there. No bathroom, no sleeping mattresses, there
16 was no blanket, they provided to water. He was given a jar in
17 which to urinate. There was no water to wash either for
18 personal cleanliness or for prayer.
19 He was not interviewed at all in the first three
20 days. On the fourth day of confinement he was interrogated,
21 and despite the fact that he was not charged with any crime.
22 He was interrogated for an additional four or five-day period.
23 During that period up to the very end, just before the end, he
24 had no reading material. And during the period of confinement
25 he was kept sleepless because he was subjected to constant
5836
1 cold.
2 How do we know these were the same conditions of
3 confinement that Mohamed was subjected to? We don't entirely,
4 but you know that he had no reading material, and you know
5 that there were long periods of isolation. Nobody has come to
6 tell you that he was kept in decent conditions, not a soul.
7 I will talk about the reading material in a second,
8 but remember something else. You have to talk about a
9 statement as being reliable. Nobody is suggesting that the
10 statement is totally unreliable and that it never happened.
11 Nobody is saying that he didn't say that he had participated
12 in the bombing. But in terms of nuance, in terms of how you
13 interpret that statement for what conspiracies if you are
14 going to do that, this is a totally unreliable statement. The
15 person who interviewed Kherchtou, remember, taped every day.
16 Every day they had a tape recorder. This is a person who was
17 an agent of a foreign government, intelligence agent of a
18 foreign government. Taped every last word that Kherchtou gave
19 to him during that interview. We have no tape. It has been
20 pointed out by others. It is shameful. It is shameful that
21 the FBI has a policy where they do not tape incriminating
22 statements, where they do not videotape incriminating
23 statements. It is done so that you the juror, and I use that
24 generically, can be told anything they want to tell you, and
25 somebody like me, some poor fool like me has to stand up and
5837
1 say the FBI are liars. Certain ones are and certain ones
2 aren't. I suggest to you you saw two kinds here. You saw
3 Anticev and you saw Gaudin.
4 (Continued on next page)
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5838
1 MR. COHN: (Continuing) But at least if Gaudin had
2 taped anything, you would have had Mohamed's own words. They
3 would have been in Arabic. They could have brought you an
4 interpreter. They would have interpreted. You would get
5 another of these endless stipulations that say, you know, that
6 it's an accurate translation and you would have heard what it
7 is he had to say in full bloom. Do you have it? No.
8 At least we could confirm one thing. Remember that
9 Agent Gaudin told you that at some point he came to the cell
10 where he had no control over the conditions and Mr. al-'Owhali
11 was looking at a magazine? Here's the first page of it. The
12 magazine is in evidence. He told the guards to take it away
13 from him and they did. He said, how come he has this
14 magazine?
15 Agent Gaudin had a reason to keep him in isolation.
16 Agent Gaudin had a reason to want him to sit there and not
17 think about anything else, not look at the pictures, not read
18 it if he could, but think, because thought was his worst
19 enemy.
20 Is it a surprise that after ten days of living at the
21 mercy of guards, who had to hate him, in a country where the
22 anger was palpable, he made a statement in order to escape
23 sure destiny in Kenya and have a trial under American law,
24 this trial? Not at all.
25 Is this a voluntary statement? Surely not. Well,
5839
1 why else should you ignore this involuntary statement?
2 Because it's really not, as I said, a nuance, at least very
3 reliable. You really don't know what was said because Agent
4 Gaudin admitted that he only got what the interpreter told
5 him. And no interpreter has been produced here, as I
6 mentioned at the beginning.
7 And even assuming goodwill, a reasonably large
8 assumption, the government's own witness, Special Agent Saleh,
9 you may remember, who was an FBI language expert, told you
10 that simultaneous translations are much more difficult than
11 doing what he did. He took written things and he translated.
12 That's translation. Actual simultaneous translations are
13 interpretation. An interpreter doesn't have a chance to go to
14 the dictionary, an interpreter doesn't have a chance to make
15 up for dialect problems and, at the best, mistakes could be
16 expected. And Saleh said that at page 3705. But it's Agent
17 Gaudin's bias that should convince you that the statement is
18 not reliable.
19 We start earlier in his cross-examination with
20 exhibits Al-'Owhali J and K. Now, these were pictures of
21 Agent Gaudin, whom you recognize, Mohamed, and some tall
22 fellow who must have been a co-agent, and the other picture of
23 Agent Gaudin with Al-'Owhali, and they are in a cell and he
24 wants you to believe that these pictures were taken as
25 evidence. In fact, they were memorabilia. Agent Gaudin had
5840
1 done what he believed was a sterling job. He had cracked this
2 case.
3 Remember that they weren't turned up for two years
4 after they were taken, when they were turned up by Agent
5 Gaudin somewhere. They had never been logged in. And you
6 remember that a lot of government agents talked about
7 photographic evidence and logging them in. He had to know
8 which was evidence and which wasn't.
9 But why does it matter? Because he lies about it.
10 Because he's trying to preserve what he views, as you will
11 see, as neutrality rather than a man whose pride in bringing
12 his country's enemy to heel would lead him to shade the truth,
13 in his distorted view to the effect if he has to appear to be
14 fair even when he is not, but, ladies and gentlemen, fairness
15 is a charade.
16 It's not the only evidence of his dissembling --
17 excuse me, lying. I do that sometimes, so stop me. Here's
18 his testimony. And you will forgive me. You will read it
19 from the screen, but I'll use my glasses.
20 When we were talking about -- you remember he
21 testified that Al-'Owhali told him that he had told Saleh to
22 move the bomb because he was going to do maximum damage in
23 another place, and when we started cross-examination, this is
24 what happened. And I will leave out Q and A. I think you
25 will recognize who is doing what. I'll just try and do it as
5841
1 quickly as possible.
2 "Agent Gaudin," and this is by me, "yesterday you
3 told us as part of what the interpreter said to you that
4 Mr. al-'Owhali said that Mr. al-'Owhali lobbied to have the
5 bomb put underneath the embassy rather than where it was
6 planned to go. Do you remember that testimony?
7 "Yes, sir.
8 "And you testified, did you not, that it was the
9 purpose, Mr. al-'Owhali's purpose in doing that to do more
10 damage and kill more Americans. Is that right?
11 "Something to that effect.
12 "That's what you testified to, right?
13 "Something to that effect, yes, sir.
14 "Well, did you say, so we can be precise, at page
15 2020,' and then quoting from 2020, 'Al-'Owhali had expressed
16 to Saleh that, wouldn't it be better if it were to put the
17 bomb truck in front of the U.S. embassy and Saleh disagreed.
18 And then Al-'Owhali suggested, wouldn't it be better for us to
19 put the bomb underneath the U.S. Embassy in the garage that
20 goes underneath, and in that way -- and in that way we would
21 cause more damage to the Americans since the U.S., since the
22 U.S. Embassy, but Saleh explained to him that it would be
23 difficult to do to get past the section of the security gate
24 to Al-'Owhali. The plan didn't get changed.'
25 "That was your testimony; is that right?
5842
1 "Yes, sir.
2 "That's not precisely true, is it?
3 "I'm sorry, sir?"
4 And then the court intervened.
5 Question: "What you said was Mr. al-'Owhali's
6 purpose in suggesting that is not exactly what he told you
7 during the 22nd; is that right?
8 "No, sir, that's what he told me.
9 "You issued a report called a 302, didn't you?
10 "Yes, I did.
11 "And in fact, you have it in front of you, don't you?
12 I think it's tabbed in the black book, and if you return to
13 page 9 of your 302 that you generated for the period of 8/22
14 to 25/98, it's 3528 for the record.
15 "Thank you, Mr. Ricco." I think that was Mr. Ricco
16 intervening in helping me out with the page.
17 "Do you have page 9?
18 "Yes, I do, sir.
19 "If you look on page 9 in the second full
20 paragraph -- now, this is something you signed, right?
21 "Yes, sir.
22 "And you drafted it, right?
23 "Yes, I did.
24 "And you drafted it from handwritten notes, did you
25 not?
5843
1 "And my memory, sir.
2 "And your memory. And you knew that it was supposed
3 to be accurate in all respects, did you not?
4 "Yes, sir.
5 "Fine. Did Mr. al-'Owhali not say to you, according
6 to this report, that subject advised that his enemy is the
7 United States and not Kenya and try to get Saleh to reconsider
8 his plan. Subject believed that placing the bomb in the rear
9 of the embassy would cause excessive collateral damage to the
10 Kenyans; didn't he tell you that?
11 "Yes, sir." And then he goes on.
12 Now, why did he do that? Because the reason he gave
13 makes Mohamed seem irredeemably bad, while the reason it had
14 to come out through cross paints a less stark picture of what
15 Agent Gaudin sees as good and evil. The problem is that Agent
16 Gaudin shouldn't be making that determination. He stopped
17 being a police officer. He's become an advocate, and you
18 can't trust what he says because of it.
19 There are two kinds of agents, as I said. Agent
20 Anticev is the other. He told you a number of things that
21 Gaudin didn't do or what the FBI won't do. For instance, the
22 FBI has forms of advice of rights in Arabic. Did they use one
23 for Mohamed? No. Why not? Because if he read his rights in
24 Arabic, he might understand them, it might give him some
25 comfort.
5844
1 Now, how else do you know that the statements are not
2 reliable? Because the government went to great lengths to
3 give you what it thinks or wants you to think is corroboration
4 of important points, stuff which we suggest is not
5 corroboration at all and should make you doubt whether the
6 government believes this testimony in full itself.
7 For instance, there is evidence about the bullets and
8 the keys. And you remember that somebody came in and said --
9 some ballistics expert came in and said that the bullets were
10 shaved, right, so that they would fit a .9 millimeter gun.
11 Now, here is a conspiracy, ladies and gentlemen, that
12 has the money to try to seek to buy plutonium. Remember that?
13 Why they told you about that other than to frighten you, I
14 don't know. But you think that they can't buy ammunition for
15 a gun that Mohamed was supposed to carry and they have to
16 shave down other bullets? That's silliness.
17 They brought you a money changer to show that
18 Al-'Owhali, who when he was stranded, tried to get, and did
19 get, money from another source in Yemen, a money changer who
20 provided documents that he admitted under cross-examination
21 had been tampered with. You know, there was some later
22 discussion about somebody being paranoid, but they had to go
23 back, bring him back again with another document that perhaps
24 had not been tampered with, at least there was no evidence on
25 the face of it. Why? For what purpose? Because they're not
5845
1 secure in the detail of what Mr. al-'Owhali is alleged to have
2 said.
3 They brought you the worst, without doubt the worst
4 identification witness in the history of the Western world.
5 Charles Mwaka Mula, who identified the defendant in the I.D.
6 parade. And you remember that there was testimony that there
7 were six people who had an opportunity to see the perpetrator
8 that day who was brought to the I.D. parade. The other five
9 failed to identify Mr. al-'Owhali of doing anything, and
10 Mr. Mwaka Mula was brought to you to show that he had
11 identified him in the parade, a parade at which Agent Gaudin
12 attended, by the way, and to identify him here in the
13 courtroom.
14 Now, this is a picture of what the parade looked
15 like, and Mwaka Mula says that he saw a picture of
16 Mr. al-'Owhali or what he -- the perpetrator, excuse me, in
17 the newspaper and he called somebody and ultimately he got to
18 the FBI. When he was shown a picture by the government, he
19 said, is this the picture that you saw? He said, I don't
20 remember. So the government couldn't lay a foundation for
21 putting it in evidence and we moved it in evidence.
22 And then you were told that he had been interviewed
23 by an FBI agent and he made a composite picture, and here's
24 the picture. A sharp resemblance to Mr. al-'Owhali. I
25 suggest you not commission this person to do a family portrait
5846
1 if you want a good likeness. Clearly it's neither one of
2 them. He said he didn't remember this either. I had to move
3 it into evidence.
4 Now, then -- by the way, the government stipulates
5 that these are the two, these two items are in fact --
6 remember I read one stipulation during our case? This is it.
7 They stipulate that these were the things that we say they
8 were -- a picture that he had, the composite that he dictated,
9 essentially, and the picture that he says caused him to call
10 the FBI in the first place.
11 And take look at them. Neither one of them is
12 Mr. al-'Owhali as he looked then. But it's even better,
13 because then they say, do you see him in the room? Now,
14 ladies and gentlemen, look at the I.D. parade again.
15 And, Katie, if you would highlight Mr. al-'Owhali for
16 us.
17 That's the way he looked then. This is the way he
18 looks today.
19 Did Mr. Mwaka Mula have any difficulty picking him
20 out after not being able to identify the pictures that he had
21 drawn? Not only did he point right at Mr. al-'Owhali and say
22 "that's him" -- now, there are six bearded men in this
23 courtroom, one of whom is the judge, so we don't count him,
24 and one of whom is Mr. Herman, and we don't Count him. And he
25 pointed directly to Mr. al-'Owhali.
5847
1 Mr. Karas predicted, with some prescience, that I
2 would say that he was coached. I do. Do I say that Mr. Karas
3 or any member of the prosecution team sitting here at the
4 table did it? Absolutely not. There are lots of candidates,
5 folks, one of whom has come under great discussion.
6 Now, how else do we know that the statement is
7 coerced and not reliable? You were told on the government's
8 summation that on the 21st of August, Mohamed was shown
9 information that made him change his mind. Now, ladies and
10 gentlemen, I have said to you before, and I say to you again,
11 it's your recollection of what was said in this courtroom, not
12 mine, certainly not Mr. Karas' either, but I suggest you look
13 at Agent Gaudin's testimony and try and find that, please. It
14 doesn't exist.
15 The government says that the motive of Mr. al-'Owhali
16 exists, adopts is the transfer of the embassy in Sudan. And I
17 talked about that. What is Agent Gaudin doing? The
18 government in its summation recalled that I had asked a
19 question of Mr. Kherchtou about, how do you construct a lie?
20 And you remember that he was instructed by this agent of a
21 foreign government is you construct a lie out of bits of the
22 truth. You use as much of the truth as you can so that it
23 bears up and you don't see the falsities.
24 Well, with respect, that's what Agent Gaudin is
25 doing. You may remember I asked a -- you know, we are full of
5848
1 these legal fictions. Things are stricken. You're not
2 supposed to remember. Whole witnesses testifying. You're not
3 supposed to remember. We hope you don't. We hope you try and
4 put it out of your mind, but one of the things, I asked the
5 question, which there was an objection which was sustained,
6 I'm sure you don't remember it, but I can do it now because
7 it's summation. I asked Gaudin, "Have you ever heard of
8 plausible deniability?"
9 THE COURT: I'm sorry, you asked a question and the
10 objection was sustained?
11 MR. COHN: Yes. And now I'm using it as argument.
12 I'm saying this as comment, as argument.
13 THE COURT: That is not as a fact but as an argument?
14 MR. COHN: That's correct.
15 THE COURT: All right.
16 MR. COHN: I said, "Have you ever heard of plausible
17 deniability?" And the reason it was stricken was because it
18 was argumentative and it was nasty and sarcastic and all the
19 things I'm not supposed to be in a courtroom. But trust me,
20 Agent Gaudin has heard of plausible deniability, as have all
21 of you.
22 Mohamed was kept in terrible conditions, in fear of
23 his life from jailers, with jailers who had to hate him. It
24 was clear that he wasn't going to get any trial in Kenya, and
25 if he did, one so summary as not to be worthy of the name.
5849
1 To get a trial, he ultimately had to come to the
2 United States, avowedly his enemy, but the only refuge that he
3 had, and as the statements he made to Gaudin tell you, after
4 begging for assurance that he would go to the United States
5 for trial, he paid for the trip in the only coin he had, which
6 was his statement.
7 Do you believe the statement was not coerced? If so,
8 then you should convict. If it was coerced, involuntary, the
9 result of a will overborne by deprivation, isolation and
10 implicit or explicit threats from the Kenyan handmaidens of
11 the United States Government, even though you don't want to,
12 even though you think that it may be true, you must put it
13 aside, as the judge will tell you that you may.
14 You are the judges of the fact and you evaluate this
15 testimony and you give it the weight, the credibility and the
16 importance, if any, that it has.
17 This is harder than what other defendants have asked
18 you to do. They have asked you to evaluate the testimony in
19 terms of whether or not the government has proven its case
20 beyond a reasonable doubt. I'm asking you to do something
21 infinitely harder. I'm asking you to evaluate the testimony
22 as how they got the evidence, and if you find that it is
23 untrustworthy, if you find that it is unAmerican, then I'm
24 asking you to ignore it; and if you ignore it, you have to
25 acquit because there is no other evidence.
5850
1 Why should we do this? He said he is our enemy. Why
2 should we apply a Constitution in his favor when he may be the
3 one who took the lives of countrymen, allies, employees and
4 people who just happened to be there? Because it's who we
5 are. I'm not wrapping myself up in the flag when I say this
6 is that. This is who we are. The Constitution entitles him
7 to this trial and to his defense, and to not apply it to the
8 verdict phase of this trial is to make a mockery of the
9 process and all our efforts.
10 After you have reached a verdict and before you come
11 out and deliver it, if you can say that each of you would have
12 reached your verdict on this evidence no matter who the
13 defendant was, that you have looked at the evidence and say
14 that you are certain of your verdict and that it is not really
15 expedient because of the nature of the charges, then no one
16 can quarrel with your decision.
17 But, on the other hand, if you are left with a
18 feeling that it is who he is that has caused you to decide
19 that the horrific nature of the charges has prompted your
20 response, and not a certainty that the government has properly
21 charged him or properly obtained his statement, then you
22 should reexamine your verdict because you are in danger of
23 violating your oath, the oath that you took and which is the
24 bedrock of our system, no matter who is the defendant.
25 In the end, I believe that the oath you took will
5851
1 prevail and that each of you will do what the law as Judge
2 Sand charges you and that, in a broad sense, justice will
3 prevail.
4 Thank you.
5 THE COURT: Thank you, Mr. Cohn. We'll take our
6 midmorning recess.
7 (Recess)
8 THE COURT: Mr. Fitzpatrick.
9 Mr. Fitzgerald.
10 MR. FITZGERALD: Yes, your Honor. When you say
11 "Fitzgerald," we'll know the trial is over.
12 I have an objection to some of Mr. Cohn's remarks,
13 and I particularly have an objection to the way he
14 characterized what happened in the period before
15 Mr. al-'Owhali executed the waiver of rights form.
16 Mr. al-'Owhali has sought to suppress what happened
17 between his arrest and when the form was signed ultimately in
18 later August. Then Mr. Cohn argued to the jury that you don't
19 know what happened on that date that caused Al-'Owhali to
20 change his mind, implying to the jury that he wouldn't talk
21 before and they kept him in isolation, and then he did talk,
22 when in fact he was talking all along, he was threatening
23 agents. And I think he has created a completely misleading
24 view of what happened during the period before the Miranda
25 rights.
5852
1 And I think the appropriate remedy is not to reopen
2 the case at this point, but I think the government should be
3 allowed to argue in rebuttal summation that Mr. Cohn had Agent
4 Gaudin on the stand, and if he wanted to know what happened
5 before, whether he had talked before he signed the Miranda
6 rights, he should have asked him then. Because this jury has
7 been led to believe that he changed his mind at a certain
8 point, when he had been talking al along.
9 MR. COHN: He did change his mind, your Honor. He
10 gave false exculpatories before when pressed and are no
11 statements. And I never said he made no statements. I was
12 very careful to say that -- not to say that. And a false
13 exculpatory at this point, since it couldn't be used, is no
14 statement at all. And I said that he was interrogated. I
15 gave the periods of interrogation. I said that they gave him
16 food and an opportunity to pray, and I don't know what I
17 misrepresented. I'm not obligated --
18 THE COURT: The question is "didn't talk," which you
19 are interpreting to mean literal silence, and I think Mr. Cohn
20 was suggesting by "didn't talk," didn't say anything
21 incriminatory.
22 MR. COHN: I don't think I even used the words
23 "didn't talk." I just said that --
24 THE COURT: You did. I think you did indicate that
25 suddenly he started to talk.
5853
1 MR. COHN: I'm told by the gallery that I did.
2 MR. FITZGERALD: Your Honor, we're telling the jury
3 that he talked at a certain date. He changed his mind. He
4 talked on that date. I think the jury thinks, okay, he didn't
5 talk before. And we have this specter of the handmaidens in
6 the American government and threats, explicit and implicit,
7 when we were barred from getting into the circumstances of the
8 period before he executed that waiver.
9 THE COURT: Again, it's a question of what you mean
10 by "talk." If you mean literally speak, then of course he did
11 literally speak. If by "talk" is used in the criminal law
12 context of making incriminatory statements, then I think that
13 it's accurate, that he didn't make any incriminatory
14 statements until the 22nd.
15 MR. FITZGERALD: But he wouldn't be isolated if he
16 was talking with people during that time. I think the jury is
17 being told he changed his mind.
18 THE COURT: You want to tell the jury that in fact he
19 was being interviewed during the period prior to that time?
20 MR. COHN: I told them that.
21 THE COURT: I think you did.
22 MR. COHN: I told them the periods, the length of
23 time.
24 MR. FITZGERALD: And if he was concerned that there
25 was improper conduct going on, explicit or implicit threats by
5854
1 the handmaidens of the American government, he could have
2 asked Agent Gaudin about what happened during that time.
3 MR. COHN: Agent Gaudin said he didn't know what
4 happened when he wasn't there. I never said Agent Gaudin said
5 anything. He's not a handmaiden, he is an American.
6 MR. FITZGERALD: Agent Gaudin was there. Your Honor,
7 he has created the impression. We weren't allowed to talk
8 about what happened during those days. Now he leaves the
9 impression to the jury that some awful things happened that
10 caused him to change his mind.
11 THE COURT: What is it you want to do?
12 MR. FITZGERALD: I want to make a comment during
13 rebuttal summation.
14 THE COURT: What is the comment?
15 MR. FITZGERALD: The comment will be if he wanted
16 you, the jury, to believe that some awful things happened
17 before he signed that form that caused him to change his mind,
18 he had Agent Gaudin up there, he could asked him what happened
19 during the interviews the days before.
20 THE COURT: What's wrong with that? What's wrong
21 with that?
22 MR. COHN: I'm thinking, Judge. I can hear the
23 wheels creaking. I'm old and slow.
24 Could I have that read back?
25 THE COURT: Surely.
5855
1 (Record read)
2 MR. FITZGERALD: The days before.
3 THE COURT: The record should indicate that Mr. Cohn
4 is shrugging his head. I translate that to mean no objection.
5 MR. COHN: It means I will reluctantly consent.
6 THE COURT: Very well. Mr. Ruhnke, are you going to
7 give the closing?
8 MR. RUHNKE: Yes.
9 THE COURT: If you can give me some approximation.
10 You reserved three hours, but --
11 MR. RUHNKE: We'll be done certainly before lunch.
12 THE COURT: Certainly before lunch. Before lunch.
13 And the government's rebuttal, then, this afternoon?
14 MR. FITZGERALD: Yes, Judge.
15 THE COURT: And the charge tomorrow morning.
16 MR. FITZGERALD: Yes, Judge. I don't know if the
17 time allotment -- I may spill into the morning, but not very
18 far.
19 MR. DRATEL: Your Honor, how did your Honor want to
20 handle the exhibits? Should we put them in binders for the
21 jury?
22 THE COURT: You should have the exhibits ready. I do
23 not automatically send in exhibits, I think particularly in
24 this case it would not be helpful to the jury to send in all
25 of the exhibits, but they should be available in a form in
5856
1 which they can be sent in to the jury. In other words, if the
2 only copy that we have is one that needs redactions, they
3 should be redacted.
4 MR. DRATEL: Your Honor, one copy? 12 copies?
5 THE COURT: I think one copy unless, if you have 12,
6 fine. I think just one.
7 MR. DRATEL: Thank you.
8 (Recess)
9 (Jury present)
10 THE COURT: Next we'll hear from Mr. Ruhnke on behalf
11 of defendant K.K. Mohamed.
12 MR. RUHNKE: May it please the Court, Judge Sand,
13 prosecution team, colleagues at the defense table, and ladies
14 and gentlemen of the jury. Good morning. I'm the last one to
15 speak to you on behalf of any of the four men who are on trial
16 in these very serious charges, in this very serious case.
17 We've been together here for about three months,
18 three or four months. You remember the day this case started.
19 The snow was outside. The wind was howling through the
20 courtroom. And you all shuffled in here for the first time
21 and were told by Judge Sand and given an oath by Judge Sand to
22 well and truly try this case between the United States of
23 America and the four individual men who are standing trial in
24 this case.
25 In that moment, you became an American jury, and in
5857
1 that moment you made promises to the Court, to the lawyers,
2 you made promises to the men on trial that you indeed would
3 well and truly try this case. There's nothing more that I'm
4 going to ask of you than to stay true to that oath.
5 You would be forgiven, even though we have been
6 together since February, if you don't know my name, because I
7 have not been up on my feet all that often. So I'll tell you
8 my name again. My name is David Ruhnke. I'm a lawyer and I
9 represent Khalfan Khamis Mohamed, the gentleman in the blue
10 shirt and the glasses who has been sitting to my left
11 throughout the trial. Sitting next to Mr. Mohamed is David
12 Stern, who is the other attorney representing Mr. Khalfan
13 Mohamed.
14 There had been a third attorney in the case, Mr.
15 Schneider, who withdrew shortly after the case began, and it's
16 now Mr. Stern and I who are charged with representing Khalfan
17 Khamis Mohamed before you ladies and gentlemen of the jury.
18 Like the other lawyers in the case, like the
19 prosecutors have asked you, I come before you simply to ask
20 that you do justice. You may gather that while everybody is
21 asking you to do the same thing, they all come from different
22 perspectives, and maybe we all have a different definition of
23 what justice is.
24 But what should be important and what should be
25 obvious and apparent to all of you by now is that it is not my
5858
1 job to say what justice is. It's not Judge Sands' job to tell
2 you what "justice" means in this case. It is emphatically not
3 the prosecutors' job or the newspapers' or anyone else in the
4 courtroom to tell you what justice is. That's your
5 responsibility. That's what you took on when you decided that
6 you would become an American jury and you would take on this
7 case.
8 You knew when you were selected in this jury, when we
9 selected all of you as members of this jury, at any given
10 point, at any number of points, any one of you could have
11 opted out of this process. You were asked questions, you
12 filled out questionnaires, you were questioned by Judge Sand,
13 and if any of you had said, you know, I want off this jury, I
14 don't want to serve, there isn't a doubt in my mind that each
15 and every one of you could have gotten yourselves off the jury
16 if you didn't want to serve. So you wanted to serve on this
17 jury. We welcome you and we're glad you're here.
18 What I intend to use my allotted time for this
19 morning is to do three things. And I'm not going to use all
20 of my allotted time this morning. First, I would like you to
21 gain a sense of where things happened in this case. You have
22 been given a swirl and a flurry of names and places and cities
23 and interrelationships, and I would be guessing, but I think
24 it would be a pretty informed guess, that a lot of you don't
25 know a simple question like: How far is it from Dar es Salaam
5859
1 to Nairobi? Where does Tanzania compare to Somalia? Where
2 exactly is Bosnia, Herzegovina? Where is Afghanistan compared
3 to these other places?
4 I'm going to take some time just to show you so that
5 when you start to deliberate on this case, at least you got a
6 sense of where it was that Khalfan Khamis Mohamed was and
7 thought about and did during the time period that is important
8 in this case.
9 I'm also going to spend some time trying to outline
10 for you when certain things happened, and the simplest way to
11 do that is by just a chronology; when, from the perspective of
12 one man in this room, Khalfan Khamis Mohamed, on August 7,
13 1998 was 25 years old, when things happened that matter to
14 this case.
15 And I'm also going to spend some time talking about
16 the statement that Khalfan Khamis Mohamed gave to the FBI. I
17 want you to keep in mind that when you have questions about
18 Khalfan Mohamed, when you have questions about who he is or
19 what he did or what he didn't do or what the government says
20 he did or what the government says he didn't do, you're going
21 to have in evidence two documents.
22 The first document is Government Exhibit 1071. It's
23 a 302. You hear people talking about a 302. Have you ever
24 wondered what the heck is a 302? Where do people get that
25 word from? It's a form number. If you look at the top
5860
1 left-hand corner of this, you will see it says "Federal Bureau
2 of Investigation Form No. 302, Revised 10/6/95." It's the
3 form number the FBI uses to record interviews of witnesses.
4 The second document that you will have in the
5 evidence, which is kind of the alpha and the omega, the be all
6 and the end all, the beginning and the end of the case against
7 Khalfan Khamis Mohamed is a document marked 1070, one, zero,
8 seven, zero. 1070 is the rough interview notes, the notes
9 taken by the two agents, Abigail Perkins and Michael Forshea,
10 who interviewed Khalfan Khamis Mohamed in Cape Town, South
11 Africa and on the plane back from Cape Town, South Africa over
12 the period of time beginning October 5, 1999 through October
13 7, 1999.
14 That's a time line I want to you keep in mind. We're
15 talking about interviews that occurred in October of 1999, not
16 '98 when the bombing occurred, but 14 months later that the
17 interviews actually took place. Most of the interviews you
18 have heard about in this case have happened within a period of
19 a few days or months or weeks from the bombings of the
20 embassies. We're talking about interviews that occurred well
21 over a year after the fact.
22 As you go through these interview notes, it will
23 quickly become apparent to you that there are two different
24 handwritings from two different agents. You will find out and
25 I will tell you circumstantially by references that the
5861
1 handwriting that is very, very difficult to decipher is the
2 handwriting of Agent Perkins who testified in this case,
3 Abigail Perkins, and the handwriting that is probably a joy to
4 his fourth grade teacher is the handwriting of Agent Forshea.
5 It's a pleasure to read. It's easy to read and easy to
6 follow.
7 But I will tell you, having spent hours and hours and
8 hours trying to figure out what Agent Perkins is writing, it
9 does make sense after a while and you see that there's a logic
10 and a style and a consistency to her.
11 You will notice, for example, that in her handwritten
12 notes she will use the mathematical sign of an equal sign with
13 a line drawn through it to mean "not," in the sense of not
14 equal, and other kinds of shorthand that become apparent as
15 you look through her statement.
16 So let's begin by looking at the "where" of this
17 case. I'm going to ask that we display Map 1 on the screen,
18 which is the Continent of Africa. It's where most of the
19 things that happened in this case took place.
20 If you start on the left-hand corner of Africa and
21 you see the Country of Morocco, that's where Hussein Kherchtou
22 is from, the witness who testified who was the second
23 government major, major witness.
24 You will see as you look towards Europe, we all
25 know -- we can all find Italy, the boot of Italy. Right
5862
1 across from the right-hand side of Italy is the former
2 Czechoslovakia. That's where Bosnia, Herzegovina is located.
3 It's where Sarajevo was, the city that was a jewel that hosted
4 the winter Olympics and became void during a period of what is
5 known shamefully as ethnic cleansing.
6 You heard Mr. Kherchtou testify about ethnic
7 cleansing in Bosnia, and what happened in Bosnia was after the
8 Czechoslovakia broke up, when the Soviet Union broke up, that
9 it retreated to centuries-old ethnic enclaves, and one ethnic
10 enclave, the Serbians wanted to cleanse, to cleanse their area
11 of the former Yugoslavia of Muslim people. And they engaged
12 in what is undoubtedly and defines the word genocide --
13 killing people because of their ethnic background. And that's
14 what ethnic cleansing was. When people talked about going to
15 Bosnia to protect Muslims, they're talking about defending
16 against genocide. But that's where Bosnia, Herzegovina is.
17 If you go across through Turkey and into Asia, you
18 don't even see on this particular map the designations of
19 Pakistan and Afghanistan, but if you take India over on the
20 right-hand side and you go to the top of India and move a
21 little bit to the left, that country that opens onto the
22 Indian Ocean is Pakistan. Pakistan was created out of hole
23 cloth in 1948 when India won its freedom to divide areas
24 between the Muslims who had the area that is now Pakistan and
25 the disputed Province of Kashmir and the Sikhs and the Hindus
5863
1 retained the rest of Northern India.
2 And as you go into Africa, the places we have heard
3 about, we've heard about the Sudan and Ethiopia and Somalia,
4 we've heard much about Somalia, and you look at the map and it
5 is hard to picture where these places are and the sizes of
6 them.
7 And I remember seeing a map displayed in this
8 courtroom which tells us that Somalia is the size almost of
9 the entire Eastern United States; that the northern border of
10 Somalia, if you laid it on the East Coast of the United
11 States, would touch southern New England and Vermont and the
12 southern point of Somalia would touch Florida. It would go as
13 far west as Ohio and Michigan and we would be in this country
14 of Somalia.
15 And it is impossible for us to sit in a courtroom
16 here in the year 2001 and imagine a country of that size that
17 has no government, and for significant periods of time had no
18 government, just had people preying on each other, seeking
19 power and territory with clans and warlords that date back
20 hundreds and hundreds of years, if not thousands.
21 If I could see the second map, please, Map 2, a more
22 closeup view. Again, if you look in the upper left-hand
23 corner of the map, you see Belgrade. You are looking now at
24 the area of Bosnia, Herzegovina, and across the entire sweep
25 of Northern Africa and South Asia through Afghanistan, which
5864
1 you can now see on the map, and Pakistan, which you now see on
2 the map.
3 And when people talk about going to Karachi, like my
4 client talked about going to Karachi for training in
5 Afghanistan, you see Karachi at the bottom on the Indian
6 Ocean, and traveling to Peshawar. You see Peshawar where the
7 cursor is going. If you move the cursor a little bit to the
8 left toward Kabul, which is the capitol of Afghanistan, you
9 are in the Hindu Kush, some of the most rugged territory that
10 there exists anywhere in the world.
11 And at this moment as we talk in this courtroom here
12 in New York City, in May of 2001, Usama Bin Laden is sitting
13 in a cave in the Hindu Kush and able to communicate to the
14 world with satellite phones that connect with a satellite
15 hanging over the Indian Ocean and talk anywhere in the world.
16 Can I see Map 3, please.
17 Now we begin to get closer to where we are and where
18 we've been for the past several months. You see Kenya and you
19 see Nairobi, and below Nairobi, about an hour flight away,
20 maybe 300 or 400 miles, it's like going from here to
21 Cincinnati or here to Atlanta, the distance between these two
22 capitols. You see Dar es Salaam and then you see Zanzibar.
23 Zanzibar is the place where my client grew up, where Khalfan
24 Khamis Mohamed was raised.
25 A country like Kenya, a country like Tanzania has
5865
1 mixed populations of Muslims and Christians and tribal
2 religions. Zanzibar, as you heard from some of the evidence,
3 is a place that is almost entirely a Muslim country, 95
4 percent of the people on the Island of Zanzibar, the
5 archipelago of Zanzibar, are Muslims.
6 Zanzibar used to be part of the Ohman Empire. It was
7 Arab-Sultan made at some point in that history of that part of
8 the world. But you get a sense of where things are and how
9 close they are.
10 You see how close Mombasa is to Dar es Salaam and to
11 Zanzibar and how short the coastline is in Kenya before you
12 touch southern Somalia -- not Mogadishu, but southern Somalia,
13 the Gedo region of Somalia, places where Ethiopia was at war
14 with Somalia, attempting to take over, places where
15 individuals you have heard about in this case went in an
16 effort to try to defend Muslims.
17 Can I see Map 3, please. I'm sorry, Map 4. No, Map
18 9.
19 This is a closer view of Zanzibar, which is sometimes
20 referred to by the name of Unguja, and the northern isle above
21 that which has the cities of Wati and Chocha-Chocha is Pemba,
22 the part of Zanzibar Archipelago, and as you will see, the
23 place where my client was born, where Khalfan Khamis Mohamed
24 was born.
25 Could I see Map 6, please.
5866
1 Map 6 is a closeup of the Island of Zanzibar in the
2 Indian Ocean, and you see highlighted right in the middle of
3 this a little tiny white lettering that says Kidimni. Kidimni
4 is a tiny rural village on Zanzibar, where my client was born
5 and where most of his family resides today, as he is in New
6 York city and they are in the Indian Ocean.
7 And finally, if I could have map number 5. Map
8 number 5 shows Dar es Salaam. If I could have the center of
9 that highlighted, please. And as you see on the map of Dar es
10 Salaam, you have heard tale of the bomb house at 213, house
11 number 213 if the Ilala section of Dar es Salaam. And you see
12 on that map where the Ilala section of Dar es Salaam is.
13 You see a section called Oyster Bay on the screen
14 right on the ocean. Oyster Bay is the section of Dar es
15 Salaam where the American Embassy was located, the former
16 American Embassy. It's been relocated. There's a new embassy
17 being built in Dar es Salaam as we speak. And you will see on
18 the distances, when you hear evidence that someone traveled
19 from Ilala to Oyster bay or left a certain area and went to
20 Oyster bay, how far apart those are.
21 If we can switch and I can have displayed the first
22 chart, chart 1.
23 What I have done for you, if you find it useful, and
24 I hope you find it useful, is to prepare a chronology, a
25 series of events that track Khalfan Khamis Mohamed's life from
5867
1 birth to today, when he is on trial for his life. And we'll
2 just follow on through this chronology.
3 On July 25, 1973, he was born. He was born on the
4 islands. Pemba, this is northern island that we saw, he and
5 his twin sister Fatuma were born, and he grew up in this
6 village of Kidimni where he was educated, although he did not
7 complete high school, as we learned as part of this case. And
8 as he is growing up, things are happening on the world stage.
9 In December of 1979, the former Soviet Union invaded
10 Afghanistan. The Arab mujahadeen, led in part by Usama Bin
11 Laden, rallied, and with the backing of the United States
12 Government, not always the overt backing of the United States,
13 but with often the covert backing of the United States,
14 mobilized to repel the Soviet invasion of Afghanistan.
15 Khalfan Mohamed -- these are the world events that are going
16 on around him -- is six years old.
17 In 1989, ten years later, the Soviet Union is driven
18 out of Afghanistan and the United States continues to provide
19 support to the mujahadeen and continues to provide support to
20 the mujahadeen for the next two years as they attempt to repel
21 the Soviet puppet government that's been set up.
22 And our government, my government, your government,
23 continues to ship things like Stinger Missiles to the Arab
24 mujahadeen because it is in the national interests of the
25 United States to support what they are doing in Afghanistan.
5868
1 Khalfan Mohamed is 16 years old.
2 At age 17 in 1990, he moves to Dar es Salaam to live
3 and to work. As you may imagine, the opportunities in Kidimni
4 are few. And he begins to work with his brother who has a
5 store in Dar es Salaam. The evidence is that Khalfan Khamis
6 Mohamed did not grow up in a very religious household. In
7 fact, his family is not very religious at all. It's really at
8 age 16 and 17, when he moves to Dar es Salaam, that he begins
9 to study Islam for the first time with any degree of
10 seriousness.
11 He begins to attend a mosque in the Ilala section of
12 Dar es Salaam and he is befriended by a man from Mombasa,
13 Kenya, named Sulieman, whose full name is Suleiman Abdallah,
14 and he begins, as it says, his first serious studies of Islam.
15 The world events continue to move forward, and in
16 that same year, Iraq, another Muslim country, invades Kuwait,
17 another Muslim country, on the Saudi Peninsula, and what we
18 call the Gulf War begins. And the United States, under
19 President George Bush, the first George Bush president, I'll
20 call him George Bush 41 and George Bush 43, because I recently
21 learned George Bush was the 41st president and George Bush now
22 is the 43rd, but under George Bush 41, the Gulf War begins.
23 The United States sends troops to Saudi Arabia. The
24 king of Saudi Arabia, King Fahd, invites the American troops
25 into what to many Muslims is a sacrilege into the land of the
5869
1 two holy places, as we have heard it referred to from time to
2 time, Mecca and Medina, the two holiest sites in Islam.
3 And very quickly, by January 1991 Iraq is defeated.
4 Saddam Hussein is not deposed, removed from government,
5 remains in government, but Iraq is defeated, is driven from
6 Kuwait, but the United States forces remain in Saudi Arabia,
7 indeed, where they remain today.
8 In 1994, Khalfan Mohamed has continued to pursue his
9 studies of Islam. As you will see, if you dig into the
10 statement, he listens to lectures, he listens to cassette
11 recordings, he listens to scholars and other teachers to tell
12 him about Islam, and he meets a man named Fahid, who is Fahid
13 Mohammed Ally, who tells Khalfan Khamis Mohamed that although
14 he is a nice man, he does not trust Khalfan Mohamed, but if he
15 went to Afghanistan and got some training, perhaps then he
16 would trust him.
17 And Khalfan Mohamed goes to Afghanistan through
18 Karachi, into Afghanistan, into a camp that is primarily run
19 by Pakistani people. It's supported by groups from Pakistan.
20 The teachers and the leaders at the camp are from Pakistan.
21 You will learn that it was his belief that his reason and
22 purpose for going to training was to learn how to help other
23 Muslims, if necessary, through arms struggle, and he thought
24 he might go to Bosnia to help Muslim people there.
25 The quotes are from his statement. I'm not just
5870
1 giving you the quotes, they are contained within his
2 statement.
3 Now, the government argues in an effort, perhaps, to
4 put Khalfan Mohamed into a conspiracy that is existing long
5 before he becomes aware of it and into a conspiracy that is
6 aimed at killing Americans. Remember, the first Count of this
7 indictment is a conspiracy to kill Americans. The government
8 claims that by going to Afghanistan and taking training,
9 Khalfan Mohamed has joined the conspiracy and is participating
10 in it.
11 Mr. Karas, in summing up for the government, made the
12 statement, well, we had the witness Hamisi who said Khalfan
13 Mohamed realized that his training camp was underwritten by
14 Usama Bin Laden. If wishes were horses, they say beggars
15 would ride. It's not that the government has a lot to wish
16 for in its proofs again Khalfan Mohamed, but that was a
17 misunderstanding of what Mr. Hamisi actually said.
18 The question that Mr. Karas actually asked of
19 Mr. Hamisi was the following, and the transcript reference is
20 there for you:
21 "Did Khalfan tell you who it was that he believed had
22 financed the training he had taken?" And the witness, like
23 witnesses often do, especially witnesses who are not
24 sophisticated, answers the question two different ways. He
25 says: "He mentioned to me, he says Usama Bin Laden is the one
5871
1 who helps a lot of groups over there." So you got one piece
2 of information. Usama Bin Laden helps a lot of groups over
3 there in Afghanistan. "But he didn't go into detail that he
4 received that help."
5 This was not an act in furtherance of this
6 overarching conspiracy. What was it? An effort to be trusted
7 by people he greatly, greatly respected and wanted to be part
8 of.
9 So what happened after 1995? One thing that did not
10 happen is that he was not asked to join al Qaeda. You will
11 recall Mr. Kherchtou's testimony that what would happen after
12 the training in Afghanistan is that the best prospects would
13 be pulled aside, taken aside and asked to become a member of
14 al Qaeda. He was not asked to do that.
15 In fact, after the training was over, what Khalfan
16 Mohamed did was he returned to Afghanistan by himself. He
17 left a contact address, which was his brother's post office
18 box where he was living, and didn't hear anything at all until
19 1998. Another three years went by. Meanwhile, world events
20 are going on.
21 It is August of 1996 that Usama Bin Laden issues his
22 declaration of Jihad. In 1997, and again the Bible, the core,
23 the alpha and omega of this information is the statement that
24 is in evidence, the statement that the government's case
25 accurately summarizes what Khalfan Mohamed told the agents.
5872
1 He visits Mombasa, Kenya three times -- you recall
2 really how close it is between Dar es Salaam and Mombasa --
3 traveling on a boat, Suleiman's boat. He engages in further
4 religious discussions. A person more sophisticated than I in
5 terrorism or recruitment might very well say this is a man
6 who's being recruited by some other people for some purpose.
7 There are many religious discussions about how to
8 help Muslims, and he meets a man named Hussein, who is also
9 called Mustafa. You heard about Mustafa in connection with
10 Nairobi. Mustafa Mohamed Fadhl. And Fahid, his friend, Fahid
11 describes this gentleman who he knows as Hussein as a good
12 brother, and Hussein knows Khalfan Mohamed lives in Dar es
13 Salaam.
14 Still, in 1997, he makes two trips to Somalia.
15 Remember, in 1997 certainly there are no Americans troops in
16 Somalia in 1997. Any American troops that were ever in
17 Somalia are long gone. It is truly anarchy in Somalia in
18 1997. There are tribal wars between Muslim groups.
19 He goes there twice. There is again religious
20 discussions. He is wondering if he is going to get to put his
21 training to use and go fight on the front lines, but he's
22 basically told that he is not needed and he goes home.
23 In March of 1997, Usama Bin Laden gives that
24 interview that we saw with CNN. In the spring and summer of
25 that same year, his brother relocates to London.
5873
1 Now we come to another event capable of two
2 interpretations. In January of 1998, Khalfan Mohamed asked
3 his friend, Zabron Nassor Mulid, somebody from Zanzibar,
4 somebody he had gone to school with -- you may remember that
5 Zabron, Mr. Malid, or Zabron Nassor Mulid, testified here as
6 witness. He knew Mr. Mohamed's family. He had been to their
7 home. They had gone to school together. He had played soccer
8 with Khalfan's brother Rubaya, who is apparently a good soccer
9 player.
10 But what's important in this case is that Khalfan
11 Mohamed asked Zabron to help him get identification documents.
12 He wants to go to London and he wants to go to London to start
13 a new life, is the words he explains to his friend, and he
14 also is seeking to bring his brother's children, his brother's
15 wife with him and to go there and start a new life. And
16 Zabron agrees.
17 As the world turns, as events go, if Khalfan Mohamed
18 had left to go to London to start a new life, probably the
19 embassy would have been bombed on August 7, 1998 anyway, and
20 that would not have changed, but everything would have changed
21 for him and he would not be sitting here, facing your
22 judgment. But that's not how the world turned.
23 In March or April of 1998, Hussein approaches him and
24 asked him if he will help with a mission or a jihad job, and
25 he agrees to help. He doesn't know what the purpose is. In
5874
1 fact, to the extent that he's thinking at all of what the
2 purpose might be, he is thinking it's most likely Somalia.
3 He's been to Somalia. He knows what has been happening in
4 Somalia.
5 We'll talk about the 302 document that is -- I'm
6 sorry, the handwritten notes that are in evidence and why
7 certain things appear in the notes and why things don't appear
8 in the final memorandum, but if you look at the notes, these
9 notes are 87 pages long, unnumbered. If you care about them,
10 you might spend the two or three minutes it takes to number
11 them.
12 But at page 86 of the notes, while the agents are
13 appraising some of the things that are being told,
14 Mr. Mohamed, according to these notes, says when Hussein told
15 him about the Jihad job, he didn't know where or the target.
16 Maybe Somalia, he didn't know. He had previously rented the
17 house we heard about, 22 Kidugalo Street in the Magomeni
18 section of Dar es Salaam. During this period of time, Hussein
19 is meeting with others who come to the house, but Khalfan is
20 basically not invited into the meetings.
21 In May, as events progress, he actually applies for
22 the passport, but as the FBI interview and I think as the
23 government's theory should be, if it's not actually, this has
24 nothing at all to do with this mission, with this Jihad job.
25 He still has this plan to go to London.
5875
1 In June of 1998, specifically, June 9, 1998, Khalfan
2 Mohamed purchases, in the sense that his name goes on the
3 documents, this 1989 Suzuki Samurai. He makes the purchase
4 with money that is provided by other people, not by him. He
5 never drives that Suzuki Samurai, so when the government talks
6 about what a crucial role it was in this offense for him to
7 buy that Suzuki, he have never drives it. He doesn't know how
8 to drive. He doesn't have a license.
9 And world events turn. Usama Bin Laden continues to
10 be something of a media darling, and on June 10, 1998, ABC
11 News airs its interview of Usama Bin Laden.
12 On June 15, 1998, using money that has been provided
13 by others, Khalfan Mohamed rents the house number 213 in the
14 Ilala section of Dar es Salaam. Remember, Hussein said the
15 house at Kidugalo Street is not suitable for what we want to
16 do and we need to relocate to a more suitable home.
17 On June 17, 1998, again you have heard the evidence,
18 somebody else, not Khalfan Mohamed, purchases a 1987 Nissan
19 Atlas, which is the truck, the refrigeration truck, which is
20 later used to carry the bomb to the embassy in Dar es Salaam.
21 That same person arranges for modifications to the truck and
22 also arranges to purchase two large truck batteries that are
23 needed to use to set the mechanism that will ignite this bomb
24 with such terrible results. He's not involved in any of this.
25 As we get closer to the bombing, according to the
5876
1 government's statement, at some point he is told it's not
2 Somalia. That's just according to the statement. We know on
3 July 31, 1998, that the engineer arrives at 213 Ilala to
4 actually wire the bomb. Others are using the Suzuki Samurai
5 now to bring the material to 213 Ilala to construct the bomb.
6 And as the date comes even closer, everybody has left
7 town. Everybody is gone. And now, sitting in a house at 213
8 Ilala, according to the government's statement, are Khalfan
9 Mohamed and the gentleman we call Ahmed the German, whose name
10 is Hamden Khalif al Awad, a man from Egypt, who will actually
11 be the one who drives the truck to the embassy.
12 On the day of the bombing, Ahmed the German calls his
13 family to say he is about to leave this life, and later that
14 day the bomb explodes at the embassy in Dar es Salaam, killing
15 11 people, I think injuring approximately 85 people.
16 According to the statement given to the FBI, Khalfan
17 rode a short distance with the truck that day as Ahmed the
18 German went wherever he was going, as far as Uhuru Road, in
19 the bomb truck. This is a map of Dar es Salaam, a more
20 detailed map than I can put up on the screen, and I want to
21 mark with a Post-it two areas.
22 First, I want to mark Ilala. You'll find Ilala, this
23 area right here of downtown Dar es Salaam, which I'm going to
24 mark with Ilala.
25 (Continued on next page)
5877
1 MR. RUHNKE: (Continuing) You will see, one of the
2 curious things about the 302, by which I mean this document,
3 the typed out document, as things get transposed from these
4 notes sometimes mistakes are made. In the typed 302 what is
5 said is that Ahmed the German goes to Uhuru Road, which is
6 right here -- you will have this in the jury room if you ask
7 for it -- and makes a right onto Uhuru Road. But what the
8 notes say accurately is that he makes a left. Khalfan Khamis
9 Mohamed leaves the truck at Uhuru Road. The truck turns left
10 towards Nelson Mandela Road -- that's this road here, and
11 there is a loop around Dar es Salaam, which if you have ever
12 been in Dar es Salaam or heard the agents tell you there is a
13 reason why you loop around Dar es Salaam if you want to get
14 anywhere. Drives up to this, I can't pronounce it, road, to
15 the Bogomoni Road, onto this area here, which is Oyster Bay,
16 which I showed you earlier on this map, and on this map you
17 will see in Oyster Bay right at this section a little street
18 called Laibon Road, and Laibon Road is right here where the
19 embassy was located. If you recall some of the pictures, you
20 see what appears to be a relatively modern highway on one side
21 of the picture and what seems to be a very unimproved road,
22 which is Laibon Road. This is the major highway, Al Hassan
23 road coming by the embassy. The truck starts here in Ilala.
24 You remember the one agent testified as you went to the bomb
25 house at 213 Ilala, made a short series of turns until you
5878
1 came to Uhuru Road, which is paved, and that is as far as
2 Khalfan Khamis Mohamed comes with the truck, according to the
3 statement. It makes a left onto Uhuru Road onto Nelson
4 Mandela Road and on its way to the American Embassy,
5 obviously, where it wound up.
6 In the aftermath of the bombing, the government
7 claims that it was Mr. Mohamed's role to clean up the site or
8 to clear the materials out so that they could not be tracked
9 down. On the day after the bombing, August 8, 1998, what he
10 actually does -- he is from a poor family. There are
11 household items that he basically can't see throwing away. If
12 he wanted to discard the items, they could have been discarded
13 on any of the rubbish heaps that mar downtown Dar es Salaam.
14 He takes a ceiling fan, a carpet, a wrench, a small child's
15 training type toilet, to be picked up at 213 Ilala by his
16 nephew and to be used by his family members.
17 On the same day, August 8, 1998, Khalfan Mohamed
18 departs Dar es Salaam by bus. If you look at a map of Africa,
19 you will see that the country next below Tanzania as you head
20 south is Mozambique. As you transit Mozambique, which is a
21 very large country, the next country you come down to is South
22 Africa. So he transits across Mozambique into South Africa.
23 Then from August 1998 through October 5, 1999 -- it's
24 12 months -- Khalfan Mohamed lives and works in Cape Town,
25 South Africa. He finds employment as a cook, as an assistant
5879
1 chef at a restaurant called Burger World, and he eventually is
2 invited to live with his employer's family. He has applied
3 for political asylum so he can remain in South Africa. It is
4 a false application for political asylum. On October 5, 1999,
5 while going to keep an immigration appointment -- instead of
6 immigration they call it the Office of Home Affairs in South
7 Africa -- he is met by immigration officers, placed under
8 arrest. FBI agents are there. He is taken to the airport in
9 Cape Town eventually, kept there for a couple of days,
10 interviewed by the agents on October 5 and October 6, and late
11 in the day on October 6 is placed in an airplane and flown
12 back to the United States of America. It is then February
13 2001 and it is now May 2001, and he is here on trial in New
14 York City.
15 That is when things happened. I want to talk a
16 little bit about who, the role of others -- you can knock that
17 chart down and put up chart 003, please.
18 In terms of the role in the offense, Mr. Cohn spoke
19 to you briefly and Judge Sand will talk to you in his
20 instructions about the idea of multiple conspiracies, interior
21 conspiracies, large and small. This is what the evidence is
22 in the case about the role in the offense, and now I am
23 talking about Dar es Salaam. Recall, please, that Mr. Mohamed
24 is not charged or believed or alleged to have had any role or
25 knowledge of the bombing that occurred in Nairobi.
5880
1 We have referred to Hussein, Mustafa Mohamed Fadhl,
2 who I think, if you summarize the evidence honestly, he can be
3 seen as the overall leader of the group in Dar es Salaam. He
4 can be seen as the one who truly recruited Khalfan Khamis
5 Mohamed to this plot. He can be seen as somebody who was
6 taking orders via cell phone from Nairobi. Another individual
7 provided funds for the purchase of the Suzuki Samurai. That
8 same individual purchased the Toyota Dyna truck in Nairobi.
9 That same individual also purchased oxygen and acetylene tanks
10 in Dar es Salaam. There is another individual involved in
11 this, according to the evidence, who helped transport the TNT
12 in the Suzuki Samurai and the other bomb-making materials, who
13 purchased the Nissan Atlas truck that was used in Dar es
14 Salaam, who also purchased oxygen and acetylene tanks used in
15 Dar es Salaam. There is another individual who wired the
16 bombs in Dar es Salaam, and also in Nairobi. According to the
17 evidence it is the same individual. And there is another
18 individual we know as Ahmed the German who drove the Nissan
19 Atlas to the American Embassy on Laibon Road, from Ilala to
20 the embassy, and pushed the button that destroyed and ended
21 his life and destroyed and ended 11 other lives and wounded so
22 many others, 85 other people. Mr. Ahmed, the German,
23 obviously died in the explosion.
24 Khalfan Khamis Mohamed, the evidence fairly suggests,
25 if you accept the statement and if you accept the government's
5881
1 view, and even taking the government's view, located the house
2 at 213 Ilala, and his name was used on the lease at 213 Ilala.
3 Other people did not put their name on that lease. His name
4 was placed on the Samurai, purchase of the Samurai. Again, he
5 didn't drive it, didn't know how to drive. His job was to
6 stay at home, stay in the house and deal with visitors. Clean
7 the place. He did manual labor, always at the direction of
8 others, in the assembly of the bomb, and rode a short way, a
9 very small piece of the journey with the driver on August 7,
10 1998.
11 Now I want to talk about the statement. If I could
12 see chart number 2, please. This is from the Khalfan
13 Khamis -- you'd think I'd say my client's name right after all
14 these months -- Khalfan Khamis Mohamed. Again, this is
15 Government's Exhibit 1021, and the interview notes themselves,
16 Government's Exhibit 1070. The reality and the truth of the
17 case is that, in broad strokes or in tiny details or somewhere
18 in between, the government's case against Khalfan Khamis
19 Mohamed rides and falls with the statement that the agents put
20 into evidence before you in this case. The reality is that
21 without his statement, without his decision to be cooperative
22 with the agents, there would be very little evidence linking
23 Khalfan Mohamed to these charges. Without his cooperation and
24 without deciding to talk with the agents there would be
25 evidence of things like his name being on a Suzuki Samurai,
5882
1 with his name being on the lease to the house. But it is the
2 government's theory and it is the government's benefit of that
3 statement that if accepted as true it fills in every detail of
4 what the government is now telling you Khalfan Mohamed did or
5 did not do in connection with this case.
6 You will see from the statement itself that the
7 agents made no real promises beyond saying that if you talk to
8 us, tell us the truth. Don't try to fool us. And if you do
9 talk to us and you do tell us the truth, we will bring that
10 home, we will tell the judge about it and we will tell the
11 prosecutors that you were truthful and cooperative and
12 helpful. I believe, without speaking for the United States
13 government, that the government believes that this was a
14 truthful and accurate statement and that Khalfan Mohamed was
15 cooperative with the agents as he was making it.
16 I say that about the statement and now let me say
17 this about the statement. It is the year 2001. We are on the
18 dawn of and are in the 21st century. It is a century of
19 amazing technology. It's a century and a time when, as I said
20 before, Usama Bin Laden, in the rugged mountains of the Hindu
21 wash in Afghanistan can pick up a satellite phone, the jihad
22 phone, I think the government called it, can pick up the jihad
23 phone and point it at a satellite hovering somewhere over the
24 Indian Ocean and speak to anybody in the world. The FBI
25 detected on my client's clothes submolecular quantities of
5883
1 TNT, could detect things that you can't see with a microscope.
2 You have heard evidence about computer drives being
3 replicated. Poor Mr. El Hage, every time he picked up the
4 phone, some robot was picking up the date and the time from
5 Nairobi, Kenya, and the government was listening in to what
6 Wadih El Hage was doing on the telephone.
7 Now I want to take you back and say it is no longer
8 the dawn of the 21st century, and let's arbitrarily say it is
9 the dawn of the 19th century, it is 1801, not 2001. The
10 police are about to take a statement from a very important
11 person to a very important investigation. What would the good
12 detective constable here in New York City have done in 1801 to
13 take the statement? The good detective constable would have
14 sat down with a note pad, perhaps a quill pen, and tried to
15 take down notes as to what the person was saying, and later on
16 perhaps, the detective constable would take those notes and
17 try to remember what was said, and put them into a much longer
18 summary of what was said. And if we went into the 19th
19 century, to the mid-19th century, to the 1860's or the 1870's,
20 my God, technology had improved to the point where we had
21 typewriters, where not only could notes be taken, but now,
22 instead of having to handwrite the statement, it could be
23 typewritten.
24 The FBI is stuck in the 19th century in terms of
25 taking down the information from important witnesses. I don't
5884
1 blame the field agents. The field agents don't make policy.
2 But somewhere some genius in Washington has decided that you
3 ladies and gentlemen of the jury are not entitled to hear the
4 questions that were asked and you are not entitled to hear the
5 answers that were given and judge for yourself, in a case, in
6 an interview that was conducted in English of a man from
7 Tanzania, from Zanzibar, who speaks Swahili, who has a command
8 of the English language that is certainly OK. But wouldn't
9 you want to know what was miscommunication? We all say
10 things, we hear them later on, I didn't mean to say that. How
11 many times have I mistaken my client's name today when I know
12 it as well as I know my own name?
13