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) 5 6 7 8 9 10 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 The FBI would prefer to live in the 19th century 14 because this is how this document came to be. You will see at 15 the bottom of the document that this conversation occurred 16 October 5, 1999, again, more than a year after the bombing. 17 You will see where it occurred. It occurred in South Africa 18 and parts of the interview occurred on the airplane that left 19 Cape Town airport and flew back to the United States, I think 20 to Stewart Air Force Base in Westchester County. Then you 21 will see that over a two-day period after they got back the 22 agents put together a report that was actually not dictated or 23 put down for further refinement until October 9, 1999. 24 I guarantee, in the sense that we can all infer 25 things that we don't actually see, that it is a fair inference 5885 1 that you would see Agent Michael Forshea and Agent Abigail 2 Perkins, perhaps in the company of an assistant United States 3 attorney, saying what did he say about this, my notes say 4 this, my notes say that, yeah, yeah, that's what he said, 5 resolving those issues and those questions and producing this 6 19th century document. You can buy a tape recorder for $25 at 7 J & R around the corner. If you are worried about one of the 8 tape recorders failing, go ahead, splurge, by two tape 9 recorders. If you are worried about both tape recorders 10 failing, maybe you have to resort to the notes. 11 This statement is such an important aspect of the 12 government's case, and to live in the 19th century, I suggest 13 respectfully, is a decision that is made that the government 14 would rather have you hear it from the FBI than hear it as it 15 happened. So you don't have it as it happened, you have it as 16 the FBI said it happened. 17 So let's go into the statement itself and some of 18 these things that just jump out to you about the statement. 19 For example, at the very beginning of the 302 you see the 20 following statement. The government refers to him as KKM, the 21 FBI refers to him as KKM, with his initials. This is after he 22 has gotten his advice of rights in Swahili and in English and 23 agrees to speak with the interviewing agents without a lawyer 24 present, and the following is written down. KKM asked if he 25 was going to see America, and investigating agents responded 5886 1 yes, that there was a good chance that he would. KKM was 2 asked later if he had a choice between going to America or 3 going to Tanzania, where would he want to go. KKM responded 4 twice, take me to America. 5 If you look at the statement, you begin to see some 6 of this at the beginning. What difference does it make later 7 on where he wants to go? And you begin to follow it. This is 8 Agent Perkins' handwriting, which is difficult but not 9 impossible to follow. And you see the reference, he was asked 10 if he had any questions, he asked if he was going to go to see 11 America, and Special Agent Forshea, you can actually see that, 12 told him yes. He stated he had no further questions and he 13 was ready to talk to us. 14 Other things that come out of this thing about 15 Khalfan Mohamed, the statement. First of all, in determining 16 his role and where he fits in and what he is all about. 17 Understand that he never heard the term bayat. Understand 18 that he has heard the words Al Qaeda, but he has never heard 19 of an organization called Al Qaeda. That he was never 20 contacted after the training. 21 On page 11 of this 302 he explains what I think 22 everybody accepts, that he first learned about the Nairobi 23 bombing after it happened, and he had no prior knowledge of 24 that bombing. He explains that he never drove the Suzuki 25 Samurai and that he didn't know how to drive. He explains 5887 1 what his responsibilities were, which was to take care of the 2 house, to be in the house if neighbors came over, and he spent 3 a lot of time in the house. And when leaving Dar es Salaam, 4 what he told his nephew was to rent the house and give the 5 money to his mother. The house, remember, had been rented, 6 one year's rent had been paid in advance, the lease had been 7 signed, so go ahead, we have the house rented, and see if you 8 can get the money to my mother in Kidimni. He left things 9 behind to get the money to his sister and mother. He had to 10 ask what TNT was. There is a reference in the report that he 11 took some advanced training but not a lot. At page 14 and 15, 12 you will see that he did not know what TNT was, and he had to 13 ask Hussein what the stuff is. The handwritten notes at page 14 48 bear that out. 15 There are some interesting things that appear in the 16 handwritten notes that don't appear in the typed 302, and it 17 is significant for your evaluation of his role. 18 At the bottom of page 48 of the handwritten notes it 19 says here, discussing the bombing, does not believe any of 20 their group could have put the bomb together, just Abdel 21 Rahman or Ahmed the driver. 22 So any thought that Khalfan Mohamed could have had 23 the expertise to actually wire this bomb together, according 24 to the notes he did not, and the only people in the group who 25 had the expertise to do this were Abdel Rahman or Ahmed the 5888 1 driver. You can search the typed 302 for the rest of your 2 jury service and not find a reference to that. 3 You can see that he did not know, at page 17 -- he 4 didn't know what the cylinder tanks were, why they were being 5 used or what was inside the tanks, if anything at all. He 6 does not know how to go to the American Embassy. Certainly by 7 October of 1999 he knew that the American Embassy had been 8 bombed, but he does not know what the route was that was 9 actually taken by Ahmed. And in fact he had never been to the 10 American Embassy in Dar es Salaam and did not know where it 11 was. 12 The money used by him throughout this process was 13 always, always provided by Hussein, by others. You have heard 14 talk about the cell phone that was used in Dar es Salaam to 15 maintain contact with individuals in Nairobi. He was allowed 16 to use the cell phone one time and he called his sisters. 17 When the others left, he was asked to stay behind in order to 18 assist Ahmed, who spoke no Swahili. 19 He emphasize to the agents that the purpose of 20 getting the passport had nothing to do with this case and that 21 he was going to London to live with his brother, or even if 22 his brother wasn't there to start a new life in London, prior 23 to becoming involved with Hussein and the group and the jihad 24 job that was proposed to him. The passport was issued 25 coincidentally after he had been asked to participate. But 5889 1 the government makes it that there were four that were part of 2 the plot. 3 I also take issue with Mr. Karas's statement that 4 this was typical Al Qaeda activity, travel on a false 5 passport. Whatever typical Al Qaeda means, I think the 6 government's idea was this idea of creating passports, forging 7 passports, having visas scanned into computer. This was a 8 passport that was applied for in a false name. It is no 9 better than that but it is certainly no worse than that. It 10 is not an Al Qaeda trademark or operation. 11 After he learned about the bombing, after he was in 12 South Africa he made one single attempt to contact the group 13 from South Africa. He had been given a number in Yemen that 14 belonged to, supposedly, Abdel Rahman, who apparently answered 15 the phone. But Khalfan Mohamed was calling with a calling 16 card. He had no real need to call. He was just trying to see 17 if it worked if he ever did need help, and he spoke briefly 18 with Abdel Rahman in Yemen. 19 You will see throughout the 302 and throughout the 20 interview notes that the government is pushing and pushing and 21 pushing on the issue of what he knows about Usama Bin Laden 22 and what his relation was to Usama Bin Laden and the overall 23 organization. 24 You will see that in the 302, which is the typed 25 report, the 19th century technology report, Usama Bin Laden 5890 1 was to him a sheik, a scholar and a leader. Interestingly, 2 the agents made very little attempt to distinguish between 3 what he knew or thought about Usama Bin Laden prior to August 4 1998 and what he knew or thought about Usama Bin Laden in the 5 14 months afterward, after the bombing and before the 6 interview. He never met Usama Bin Laden, he never heard him 7 speak. He said later on in the documents that he had never 8 heard of a fatwah to kill Americans, although interestingly, 9 according to the 302 statement, he is asked about innocent 10 people who died in the embassy bombing. He says well, Allah 11 will take care of them. So although he has never heard the 12 Bin Laden fatwahs or maybe the Al Qaeda declarations on what 13 is Islamically right or not Islamically right, that is a sort 14 of eerie echo of -- of who? Remember Abu Hajer al Iraqi, also 15 known as Mamdouh Ahmed Salim, one of the old ones, a very 16 powerful figure on the ruling council, the shura council of Al 17 Qaeda, a very imposing man as you see his picture, somebody 18 who had memorized the Koran, somebody whose opinions were 19 valued, who, citing an example from Islamic history, said that 20 if you kill people and they are your enemies they deserve to 21 die, and if you kill and they are innocent they will go to 22 heaven and Allah will take care of them. Although he has not 23 heard the direct words, that's the kind of thing that he is 24 hearing. It's the kind of thing that is out there in the 25 world that he is inhabiting in Dar es Salaam during this 5891 1 period of time. 2 But it does get into the 302, that he will consider 3 his group, part of Bin Laden's group, and, it is quoted, 4 because they all share the same feelings. That is what is 5 contained in the 302 at page 25. It is of obvious 6 significance to the agents that Mr. Mohamed be tied to Mr. Bin 7 Laden's groups, to make this overarching conspiracy a reality. 8 You will see, especially in the interview notes, that there is 9 back and forth about this, that they are recording in their 10 interviews, and you would love to hear what was said. But I 11 will tell you what appears at page 55. I say 54 because we 12 renumbered them when there was a card in here. The exhibit 13 that you will have is page 55. He said he is not sure what 14 Bin Laden looked like. He did hear a few times that Bin Laden 15 was responsible for bombings -- from the news. In other 16 words, he is listening to the news in South Africa after the 17 bombings for almost a year, more than a year. So he heard 18 that Bin Laden was responsible for bombings from the news but 19 before the bombing Bin Laden could be his leader, could not be 20 his leader, maybe yes, maybe not. This is a quote from the 21 notes. Never felt he was part of Bin Laden's group. Quote 22 from the notes. Never felt he was part of Bin Laden's group. 23 And yet in the typed 302, that gets translated to, would 24 consider his group part of Bin Laden's group because they all 25 share the same feelings. Wouldn't you like to know and 5892 1 wouldn't you like to have our government trust you with 2 knowing what was actually said at that moment, whether the 3 notes are wrong or whether the 302 is wrong or whether the 302 4 is simply an interpretation of the notes, or how this seeming 5 contradiction on such an important issue -- this is not that 6 he turned left or right on Uhuru Road. This is, is he or is 7 he not a member of this large worldwide overarching conspiracy 8 that we have been trying and hearing about since February 5. 9 Those are some comments I make on the 302's. It is 10 certainly going to be -- final comments in terms of role and 11 everything else. How did he take direction? When it came 12 time to doing the kind of physical labor that we talked about 13 regarding the bomb, directions came from Abdul Rahman, when 14 Abdul Rahman wasn't the boss, Hussein was the boss and told 15 him what to do. 16 I am just about finished with my remarks on behalf of 17 Khalfan Khamis Mohamed. Whether he knew and when he knew 18 whether this bomb was intended, when he thought he was going 19 to go fight in Somalia, whether he thought he was going to 20 fight in Bosnia some day, the evidence that you heard is for 21 you to consider and for you to decide. It is not my role to 22 tell you how to decide this case, as I told you. It is not 23 the prosecutor's role to tell you how to decide this case. It 24 is not the other defense lawyers especially, since they 25 represent their own individual clients and seek justice that 5893 1 may have different definitions on trial and justice may take 2 different interpretations. Justice may be not guilty in one 3 situation, it may be guilty in another situation. 4 I can't ask for anything more from a jury, you folks, 5 this particular jury -- there are 16 of you now. Only 12 of 6 you are actually going to get to deliberate, and that may be 7 an overstatement of the benefit, to deliberate on a verdict in 8 this case. All I can ask you to do is do justice as you see 9 it, to find the facts as fairly presented, and to return your 10 verdict. We may not welcome the verdict that you return, but 11 may you return a verdict that has integrity to it, that 12 follows a conscientious application of the laws. We are going 13 to respect your verdict and we will respect you as a jury for 14 the process that you have undergone. I thank you very much. 15 THE COURT: Thank you, Mr. Ruhnke. We will break for 16 lunch and we will resume at 2:15. 17 (Luncheon recess) 18 19 20 21 22 23 24 25 5894 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 THE COURT: Let's bring in the jury. 4 MR. RUHNKE: Your Honor, a brief housekeeping. I had 5 ask the Court to respond to the government's Brady letter by 6 tomorrow morning. What I would like to do is bring my 7 response Thursday. We're starting late on Thursday. 8 THE COURT: Yes. 9 (Jury present) 10 THE COURT: We now are at the stage of the 11 proceedings where the government has its opportunity to make 12 rebuttal argument. 13 Mr. Fitzgerald. 14 MR. FITZGERALD: Thank you, Judge. 15 Good afternoon. 16 THE JURY: Good afternoon. 17 MR. FITZGERALD: What we do here, all of us, is 18 important work. And let's just get to work. Let's dive right 19 into it. 20 If I happen to talk too fast at any point, it may 21 have happened once or twice during the trial, put your hands 22 up. I'm not offended. It's happened before. Just give me 23 that look that I need decaf. and I'll slow down. 24 I'm going to go in order. I'll start by addressing 25 the El Hage summation and work from there. And let me try to 5895 1 give you some topics we'll cover in rebutting the El Hage 2 closing. 3 I would like to talk to you about the witnesses 4 Al-Fadl and Kherchtou, first Al-Fadl, then Kherchtou, and how 5 they fit together, what they mean in this case. 6 Then I would like to talk to you about the issue of 7 Somalia, what was proved, what was not proved, what it means 8 and what it doesn't. 9 Then I would like to talk to you about the issue of 10 perjury. Perjury is an important part of the case against El 11 Hage, but certainly not the only part. 12 Then I would like to talk to you about Wadih El Hage 13 coming back to America in September of 1997 and the way he was 14 portrayed by Mr. Schmidt as a great American coming home to 15 the country he loved. 16 And then I would like to talk to you about the 17 conspiracy, the conspiracy charged in Count One of al Qaeda 18 members and associates, and others conspiring to kill 19 Americans. 20 And while I cover those topics, I would like to also 21 focus on a theme. Mr. Schmidt said to you during his 22 summation, "presentation is very important in this case 23 because the government doesn't have the evidence." Then he 24 continued that "presentation, form, is attempting to triumph 25 over substance," as if there is a game here. There's no 5896 1 evidence, slight of hand, that's the proof. I want to keep 2 that comment, that assertion by Mr. Schmidt in mind as we go 3 through the different topics, his assertion that the 4 government is trying to have form over substance. 5 Al-Fadl. You have heard a lot about Al-Fadl. Let me 6 tell you a couple of things to think about when you consider 7 Al-Fadl. 8 It's not whether you like him. No one is here to 9 decide whether you like Al-Fadl, a guy who joined a terrorist 10 group, stole the terrorist group's money. No one really cares 11 that he stole the terrorist group's money. We wish he stole 12 it all so they couldn't do anything. 13 What you are here to decide is whether what he told 14 you about what he knew was the truth, not whether you like 15 him. It's not whether you think he's like Mother Theresa, 16 because she's at the other end. Mother Theresa doesn't join 17 al Qaeda, al-Fadl does. 18 People don't leave al Qaeda easily, but if you are 19 caught stealing, you leave, okay? No one asks you to make him 20 your friend. No one asks you to decide whether you want to 21 have dinner with him. The question is, is what he told you 22 the truth. 23 Second point: It's what you think. That's why you 24 are here. That's why you are picked. That's why you are in 25 the jury box, not me, not Mr. Schmidt. Don't worry about who 5897 1 pounds the table the hardest as to whether he told the truth 2 or didn't. You size people up every day. You know how to do 3 that. You do it for yourself. 4 When you go about sizing up what Mr. Al-Fadl told 5 you, be aware of two things. He has a cooperation agreement 6 with the government. It's in evidence. Don't worry, I'm not 7 going to read it out loud to you. But it's there. It's 8 Government Exhibit No. 1 that tells you what the terms of his 9 deal are. 10 And I submit to you there is no doubt that Al-Fadl 11 looks out for number one. Number one is Al-Fadl. There's no 12 doubt that he has an interest in testifying. The question for 13 you is, how does that interest affect what he says? Does it 14 give him a motive to make things up, or does it give him a 15 motive not to do that because he may lose something if he gets 16 caught in a lie? You can look at that agreement and see what 17 happens to him if he lies. 18 The fourth thing, fourth thing I want to say about 19 Al-Fadl is look at the corroboration. "Corroboration" is just 20 a fancy word for whether or not what he says checks out. 21 Having that in mind, let me go through some of the 22 things he told you. One of the most important things you can 23 think about when you think about Al-Fadl is the process by 24 which he ended up in the witness stand, because you remember 25 he left the al Qaeda terrorist group late '95, early 1996 and 5898 1 he went around and he approached the United States Government 2 overseas in the summer of 1996. Then he was debriefed. 3 People interviewed him. They took notes in the late 4 summer and the fall of 1996. He is telling what he knows and 5 they are writing it down. It will be checked out five years 6 later in this courtroom. 7 When he talks and he says what al Qaeda is, who is in 8 al Qaeda, what it does, what it has done, he has no idea who's 9 going to walk in behind him, he has no idea who may testify, 10 he has no idea what phones may be wiretapped. He has no idea 11 what houses may be searched in the five years between what he 12 says and when he comes to court. I submit to you when you saw 13 him testify, when you saw the stipulations about what seemed 14 inconsistent between what he said in court and what he said in 15 1996, it was minor. 16 What did he tell you? He told you al Qaeda was an 17 organization. He told you the structure: The emir, the Shura 18 Council, the committees. He told you who were on these 19 committees. He told you it worked very, very closely with the 20 Egyptian Islamic group, headed by that guy Ayman al Zawahiri, 21 the Egyptian guy. I should hold up his picture, but I forgot 22 to pull it up. 23 He told you that America was the enemy of al Qaeda 24 back when he left the group in 1996. He's planning and said 25 America is the enemy of al Qaeda. And he told you that he 5899 1 learned in al Qaeda that al Qaeda felt responsible for what 2 they did in Somalia to go against the Americans. And he told 3 you from what he understood of the group, that the group was 4 willing to attack Americans everywhere -- in the United 5 States, outside the United States, and even embassies. 6 Now, he said all that. He's got to worry about who 7 comes in behind him, what facts are unearthed later, and let 8 me tell you about three people who came along to corroborate 9 Al-Fadl. I'm not talking about Kherchtou at this moment, I'm 10 talking about Usama Bin Laden, Harun -- Fadhl -- the famous 11 Harun you've heard so much about, and a man in this courtroom, 12 Wadih El Hage. 13 What did we learn? 14 By the way, Al-Fadl also told you the reasons why al 15 Qaeda didn't like America. It was America being present in 16 the Saudi Arabian Peninsula which was viewed as being 17 unacceptable. He told you it was the Americans coming to 18 Somalia which was viewed as colonization. He told you that al 19 Qaeda was angry at America because this person Omar Abdel 20 Rahman was arrested. And he even told you the name of the 21 Islamic scholar that gave them the justification, that person 22 Ibn al Tamiyeh, that you have heard about several times. 23 Well, along comes Bin Laden. Bin Laden decides in 24 the fall of 1996 to declare war openly, publicly on the 25 American military, a declaration of Jihad against the American 5900 1 military. Lo and behold, Bin Laden tells you that the enemy 2 of al Qaeda is America, just like Al-Fadl did. 3 Bin Laden says in the 1997 CNN interview that he's 4 just targeting the United States. That's the main enemy. In 5 February of 1998, when Bin Laden issues the fatwah, the ruling 6 that says you can kill civilians and military, he does it 7 jointly with the Egyptian Islamic Jihad, signed by Ayman al 8 Zawahiri, the same group that Al-Fadl says they were working 9 so closely with. A lucky guess? No. 10 In May 1998, Bin Laden in his speech would single out 11 embassies when he spoke to ABC, and say after the Khobar 12 bombing, the American embassies are being used to gather 13 information. A dark, sinister hint. And then in August of 14 1998, as you have now seen, Bin Laden, his organization, 15 bombed the embassies in Africa. Certainly Bin Laden never did 16 any of that to corroborate Al-Fadl, but it does. 17 Bin Laden gave reasons in his speeches. He said he 18 was angry at America for its presence in Saudi Arabia. He 19 talked about the United States in Somalia. He talked about 20 the arrest of Omar Abdel Rahman, and he cited the scholar Ibn 21 al Tamiyeh. 22 In fact, in Bin Laden's speeches, if you look 23 carefully at Government Exhibit 1600A-T -- and I'll try not 24 read too many exhibits, but in 1600A-T Bin Laden even made 25 clear -- that's the declaration of Jihad -- that while he was 5901 1 in the Sudan, he wasn't allowed to talk. 2 And then he left the Sudan and he went to the Hindu 3 Kush, the mountains in Afghanistan, and now he could talk, 4 showing you that the hatred of America, attacking America, 5 America being the enemy was talked about privately before 6 because the Sudanese government kept him muzzled, 7 corroborating again that there was a private discussion about 8 America, the enemy within the group, but not public until he 9 makes it to Afghanistan. 10 Harun Fadhl. How in the world did you ever expect 11 that this man would come along and corroborate what he must 12 view as a trader? Well, what did he tell you? You remember 13 that report, which we're going to talk about a number of 14 times, 300A-T. It's the security report in the summer of 15 1997. 16 What does Harun talk about in there? Well, he thinks 17 that America is talking to an insider, not to Al-Fadl, but to 18 that person Abu Fadhl al Makkee. The best way to describe 19 him: The guy with the missing leg below the knee who is 20 married to Bin Laden's niece. 21 And when he's in a panic, what does he write in a 22 report, not for the newspaper but a report to go back to the 23 headquarters in Afghanistan? Oh, my God, we're in trouble. 24 America knows well we're the people who hit the Americans in 25 Somalia. Wow. That's in 1997, corroborating what Al-Fadl 5902 1 told you. 2 Harun also told you that they were panicked about 3 that same person, Madani al Tayyib. That's the same person as 4 Abu Fadhl al Makkee that Al-Fadl told you all about. He is 5 saying to you, not meaning to, he got it right. Abu Fadhl's 6 in our group, our group exists, we are fighting America and we 7 fought America in Somalia. 8 Even El Hage corroborates Al-Fadl. Mr. Schmidt 9 talked to you about the bicycle story. What did Mr. Al-Fadl 10 tell you about the bicycles? He said Wadih El Hage travels 11 overseas. He goes to buy bicycles. And I basically look at 12 him and say, what's up with that? On the third guy signing an 13 al Qaeda contract, you're buying bicycles, and what is his 14 answer? Is the answer that Al-Fadl gives you, oh, he said I 15 wasn't buying bicycles, I'm buying nuclear weapons? He just 16 said Al-Fadl smiled. That left you with the impression that 17 you don't know, did he buy bikes or did he buy something else 18 as well? 19 I submit to you, you have seen on the defense case 20 that he went and he bought bikes and in his notes he bought 21 bikes. But what did he see in August '97? Mohamed Ali Odeh 22 thought that Wadih El Hage went to Pakistan for strictly gems. 23 So Wadih El Hage took a detour and went to see Bin Laden. You 24 still don't know what happened. All my point is, Al-Fadl 25 didn't make it up. There was a bike deal. He had a 5903 1 conversation. He didn't add anything to it. 2 Now, what's the most important thing Al-Fadl tells 3 you? The most important thing that Al-Fadl tells you is 4 precisely the fact that there is no secret in al Qaeda that 5 America is the enemy, we're at war with America, we were at 6 war with America in Somalia, and it goes way back to at least 7 1993 if not 1992. 8 And remember, when we talk about a terrorist group 9 keeping secrets, sure, you have to keep secrets at times about 10 operations, but a terrorist group can't keep its enemy secret 11 from its members. You're joining a group to fight the enemy. 12 You join a group and not know who you are supposed to fight? 13 They know they're fighting America. They may not know all the 14 operations. Someone can do a surveillance and not tell 15 someone else, that's smart, but you know who you are against. 16 Let's talk about Kherchtou. Kherchtou is another 17 cooperating witness, and again his cooperation agreement is in 18 evidence and you can look at what it says and what the 19 incentives are. 20 Mr. Schmidt would like you to believe that Kherchtou 21 doesn't really hurt Wadih El Hage's case except that he's 22 lying whenever he does. Kherchtou hurts Wadih El Hage's case 23 without even trying. He tells you, Who is Abu Ubaidah? He's 24 the military commander of al Qaeda. What happened to him? He 25 drowned. What did Wadih do when he learned it? He cried. 5904 1 The guy who stood in front of a Grand Jury in this courthouse, 2 took an oath and says "I know nothing about that" is crying 3 over Abu Ubaidah drowning. 4 Does Kherchtou know what he said in the Grand Jury? 5 Al Qaeda knew its military commander drowned. Kherchtou tells 6 you that El Hage replaced Khalid al Fawwaz as the boss. 7 Because remember, and you will see this theme later, when 8 Fawwaz was in trouble in Nairobi, when he got arrested, when 9 the heat's on and he's in jail, he gets out of town. Go hide 10 in open view in London, say I'm the spokesman, go over there, 11 take the heat off the cell. And who comes to replace him but 12 Wadih El Hage. 13 You know what? Do you know how you know that 14 Kherchtou knows less about Wadih El Hage than you do now? 15 Kherchtou is asked by Mr. Schmidt -- and bear this in mind 16 when you think about form over substance -- Kherchtou is asked 17 by Mr. Schmidt, transcript at 1413: 18 "Did you become aware that Harun," Harun, "was 19 involved in false passports or other fraudulent documents?" 20 "Kherchtou: Yes. 21 "Mr. Schmidt: Did you ever see Wadih El Hage 22 involved with false passports? 23 "Kherchtou: No." 24 Kherchtou didn't know. Kherchtou didn't see the 25 letter you saw going back and forth, that Libyan guy in 5905 1 Azerbaijan. There was a wiretap you saw conversations of 2 where Wadih El Hage is involved with a DHL, sending a package 3 and fixing the office and cleaning the green. 4 Wadih El Hage, even Mr. Schmidt seems to concede, was 5 involved with passports when he says, "It doesn't really 6 matter, because that's okay in the third world. Only you 7 suspicious Americans think that's something bad." I submit to 8 you, Kherchtou didn't know as much as you did and you will see 9 that throughout; that you have seen so many different pieces 10 of the puzzle that you now know about particular things more 11 than any one witness. And if Kherchtou wanted to make it up, 12 wouldn't he have just said, yeah, I saw Wadih do passports? 13 But he didn't. He told you what he knew and what he didn't 14 know. 15 Kherchtou told you that he sat in Wadih El Hage's 16 house with Ali Mohamed, a person Abu Mohamed al Amriki, 17 several pictures of him, the guy who did the surveillance, and 18 said that the military commander wanted Kherchtou and Ali 19 Mohamed to go over to Senegal and surveil targets. He never 20 reached. He said Wadih El Hage was present. He was in his 21 house. He could have. Wadih El Hage would be in the area. 22 He doesn't have to worry. But he doesn't. 23 And you will see later that when Kherchtou told you 24 the story about al Fawwaz being arrested, he told you that 25 they paid bribes, they went to a lawyer and they went to a 5906 1 contact in the Kenyan Intelligence Service, a guy named Ali. 2 He never once indicated that Wadih El Hage knew Ali or knew 3 about him. And yet when you look through Wadih El Hage's 4 notebooks you will see later on that Wadih El Hage had an 5 entry in his notebook that said, "Ali from Kenyan Intelligence 6 can help us with the organization." Kherchtou didn't reach. 7 Now, I submit to you the one thing that Mr. Schmidt 8 cannot accept is that Mr. Kherchtou believes but doesn't know, 9 but believes that Wadih El Hage is a member of al Qaeda. And 10 let's talk about form over substance, because it's 11 interesting. 12 On the government's direct examination, I will cite 13 transcript 76. You can check it. Kherchtou is asked right up 14 front: 15 "Do you know if Wadih El Hage made bayat?" He said 16 no. He was asked: "Were you ever told that there was 17 anything that could not be discussed in front of Wadih El 18 Hage?" And he said no. So he doesn't know if he made bayat, 19 he didn't see a bayat, but there was nothing he understood he 20 could not discuss. 21 Mr. Schmidt, asking Kherchtou on cross -- I'll 22 display the first one. 1365 of the transcript asks about a 23 number of people and whether they are in al Qaeda. But watch 24 the form, the form of the question: 25 "And you believed that he was not a member of al 5907 1 Qaeda, correct? Is that correct? 2 "Answer: Yes." 3 I won't show all of these. I'll read them to you and 4 give you the cite. 1372 about Ahmed Sheik: "You are fairly 5 confident that he is not a member of al Qaeda, correct?" 1375 6 about Abu Khadija: "You were not aware that he is a member of 7 al Qaeda; is that correct?" 8 1376 about Dr. Mubaraka: "Dr. Mubaraka, to your 9 knowledge, is not a member of al Qaeda; is that correct?" 10 "Hamza al Liby, to your knowledge, you do not believe 11 he is al Qaeda, correct? Someone else, do you know if he was 12 al Qaeda?" 13 1377, "Abu Muath, was he al Qaeda?" And it goes on 14 for several pages. 15 Then we go to transcript 1401, I believe, when it 16 gets to El Hage it's not "do you believe he's a member." 17 "Now, so is it fair that you do not know -- 18 withdrawn. You have no actual knowledge that Mr. El Hage ever 19 took bayat in al Qaeda; is that correct? 20 "Answer: Yes." 21 And he wants to talk to you about form over 22 substance. 23 Then it came back on redirect and Mr. Kherchtou was 24 asked, "Do you believe he's in al Qaeda?" And he said "yes." 25 And then he was crossed again on facts that he said before he 5908 1 did not know that people in al Qaeda discussed that they did 2 not know, and that fact is remarkable because most people are 3 in al Qaeda or they're not, but some of the big people being 4 Abu Hafs, Abu Hajer, people don't know if they made bayat, but 5 they know they're important. 6 And then at 1561 to 1562, what Kherchtou said -- I 7 hope I'm on the right page -- bottom of the page, line 24, 8 when asked what he understood, he said: "That is true. But 9 when I have indicated or mentioned that he is a member of the 10 al Qaeda, it," next page, "it was in relation or in reference 11 to the way that we were relating to him, and it was open in 12 how he handled matters." 13 Skipping over the colloquy, continuing the answer: 14 "Persons who are not members in the al Qaeda, we cannot talk 15 to them openly as the way we address members of the al Qaeda 16 and as the way we addressed him." 17 Now, you know what, as we have said many a time and 18 the judge will explain to you, you don't have to be a member 19 of al Qaeda to be part of the Count One or the other count 20 conspiracies which are made up of people who are in al Qaeda 21 and who are not. And just the same, to be fair, just because 22 you are in al Qaeda doesn't make you part of the conspiracy. 23 But focus on the form. It was brought out fairly. 24 He didn't know about the bayat, but he could talk. When it 25 came down to that, I submit to you El Hage could not deal with 5909 1 the fact that someone he knew believed he's an al Qaeda 2 member. I submit to you, as you sit here today, there are 3 people in this room, looking at us now, who never saw any of 4 you take an oath who have good reason to believe that you are 5 jurors. 6 What about America? What did Kherchtou tell you 7 about al Qaeda's role with regard or position with regard to 8 America? He said something different than Al-Fadl, and let's 9 recognize that. 10 Al-Fadl is back at headquarters, the person back at 11 Sudan. He hears his speeches and he says, yes, Bin Laden said 12 this about the head of the snake and this about fighting the 13 Americans, and we'll see some corroboration of what Al-Fadl 14 said about specific trips into Somalia by the military 15 commander. 16 But he heard it that way. Kherchtou's a field guy. 17 He's helping people in Nairobi go to Somalia. He's taking 18 flying lessons. And what did he tell you? He knew, he knew 19 from talking to the people going up to Somalia, like Harun and 20 Saleh. And we'll get to how Harun exaggerates later, because 21 what Harun told him about what Harun and Saleh did, they were 22 together. Harun and Saleh were talking to Kherchtou. Harun 23 is going to make up what Saleh did in front of Saleh. 24 Kherchtou told you he understood that America was the 25 enemy. It was so obvious to him he wouldn't remember 5910 1 particular remarks. Let me give you an analogy, but let me 2 tell you why the analogy doesn't work. 3 We are not here treating al Qaeda as a country. We 4 are not here treating Usama Bin Laden as a head of state. 5 It's a terrorist group. They may think they are a country, 6 they may think they get the right to act like a country. They 7 don't. We're not here talking about a military enterprise. 8 They can call it military, but it's terrorist. 9 Putting that aside, how many of you remember back in 10 the days when there was a Cold War how you learned that the 11 Soviet Union or Russia was the enemy of America? Can you sit 12 down and point to a conversation and say I learned it on that 13 day? Would it be so obvious to you who the enemy was that if 14 someone came back now and said, prove you knew. Who you told 15 you? Did you ever hear the president say something bad about 16 them? I don't know, I knew. 17 If he said something bad back then, it wouldn't stick 18 in my mind. He also said the surveillance team coming to 19 Nairobi brought it home to him; dealing with the people who 20 were going to Somalia, even though he didn't go himself, made 21 it clear to him from what Saleh and Harun said they were 22 fighting the Americans. 23 I submit to you when you take Kherchtou and Al-Fadl 24 together, two people from different parts of al Qaeda, when 25 they come together and they tell you, yes, we were in al Qaeda 5911 1 and we knew back in '93 that America was the enemy, that's the 2 problem for El Hage. And that's the problem for Odeh as well, 3 as we'll see later, because you are in a group from 1993 that 4 you know is making America its enemy, that is making war in 5 America, and you do that and you want to help the group do 6 that, I submit to you that's a long way along the way to 7 conspiracy. 8 Let's talk about Somalia. Mr. Schmidt told you -- 9 actually, before we talk about the factual issues in Somalia, 10 let's talk about something. 11 Where did Somalia fit in in this case? Well, you may 12 or may not be surprised to learn there is no charge in this 13 case, no single count that talks about Somalia alone. There's 14 no one killed in Somalia that's charged as a murder count. 15 The participation in Somalia is charged and, I submit, proven 16 to you as part of the conspiracy, the ongoing conspiracy to do 17 various things to attack America. 18 And I'll make very plain: No one in this courtroom 19 took any weapon. We contend we didn't prove, we don't allege 20 that anyone in this courtroom picked up a gun and shot and 21 killed an American. Not Mr. Odeh, not Mr. El Hage, we don't 22 even contend Al-'Owhali ever went to Somalia. K.K. Mohamed 23 didn't go for years later. 24 What is important is if the people working in al 25 Qaeda understood that in 1993 that the U.S. participating with 5912 1 the U.N. coming to Somalia was colonization, an enemy, and 2 they are working to fight America, that puts the line for the 3 claim that years later they're surprised, surprised to learn 4 America is the enemy, that this was something new. It only 5 came out when Bin Laden made that speech. 6 I submit to you that Somalia proves that the group 7 was working against America way back then. And they believed 8 in their own internal discussions, they believed they were 9 responsible for what happened to the Americans in Somalia. 10 Harun telling Kherchtou in front of Saleh, we were up there in 11 Mogadishu in a building with helicopters shooting at us, 12 someone joining that group, someone working with that group, 13 someone assisting that group will know what it is they're 14 working against. 15 Mr. Schmidt told you that for Somalia all we have are 16 the words of terrorists who are braggarts and liars. That's 17 pretty clever. Let's walk through it. 18 First, look at what Al-Fadl told you. Al-Fadl 19 approached the government again in the summer of 1996. And 20 what does he tell you? He says, I'm in the Sudan. Abu Hafs 21 took two trips to Somalia. One was to go down to assess what 22 they could do. And he came back and he told you, in very 23 shortened forms, not as articulate as Dr. Samatar, but there's 24 a whole lot of tribes over there and they are fighting each 25 other, and Abu Hafs told him "we can't do it easily." He 5913 1 said, "It is not going to be easy," transcript 422, 423, "but 2 we have to start a little bit if it's getting bigger." He 3 said, "It is not easy to start because different tribe, 4 different groups, there's nobody control going on over there, 5 but we try to start a little bit and if go good, we go 6 bigger." 7 And then he told you after coming back from another 8 trip, Abu Hafs said that the group, al Qaeda, was responsible 9 for the attacks on the Americans. That's Al-Fadl. 10 What do you learn afterward? You learn afterward 11 that in 1997 Bin Laden makes statements to CNN that, yes, it's 12 the Arab mujahadeen from Afghanistan who are responsible for 13 what happened to Somalia. And what does Mr. Schmidt say? 14 Very cleverly: Well, you're a terrorist. You have to 15 terrorize. 16 MR. SCHMIDT: Objection, your Honor. 17 THE COURT: Overruled. 18 MR. FITZGERALD: Your recollection will control, but 19 he argued to you that Bin Laden, to terrorize, has to take 20 credit. 21 Go back, look at that same interview, and what you 22 will see is he says, I didn't do, I wasn't part of the Riyadh 23 bombing or the Khobar bombing. If he is falsely taking 24 credit, take credit for all of them. 25 Harun. Harun's report that we'll hear a lot about, 5914 1 that report, 300A-T -- and we'll call it the Harun report 2 because it is clear he wrote it, but the Harun report from the 3 El Hage computer in the El Hage house, the one that says "the 4 cell is in danger," now we hear that Harun may be a kid, 5 according to Mr. Schmidt, and he may exaggerate. 6 The basis for that is he asked Kherchtou when they 7 bring him back: Does he exaggerate? He says: Yeah. Does he 8 make up stories about himself? Kherchtou says no, but let's 9 run with it. He's a braggart. He's not a kid. This man 10 organized a bombing that killed 213 people. That's not a kid, 11 that's a murderer, someone who thinks in cold blood. 12 Now, when does Harun write this report? He writes 13 this report in the summer of 1997. There's a date, you can 14 figure it out from the date, August 13 or August 14, when he 15 has a panic attack, when he thinks that Abu Fadhl al Makkee, 16 the guy with the missing the leg, married to Bin Laden's 17 niece, is talking to the Americans. When he thinks one of 18 their group, an insider, is talking to the Americans, he 19 panics. 20 This is not written for CNN to take credit, this is 21 written for headquarters, the supreme and wise high command 22 back in Afghanistan. It's not for taking credit and it's not 23 for bragging. He is talking to Bin Laden about what Bin Laden 24 did. You don't make up a story to your boss about what your 25 boss did. 5915 1 What does he say? He says, basically, we're in 2 trouble. I'll read you part of a paragraph: "My advice to my 3 brothers, the crew of East Africa, is not to be lax with 4 security matters, and that they should know that they are 5 America's primary target now and that there's an 6 American/Kenyan/Egyptian intelligence activity in Nairobi, 7 working to identify the locations and the people who are 8 dealing with the Sheik, since America knows well that the 9 youth who work in Somalia and who are followers of the Sheik 10 are the ones who have carried out operations to hit the 11 Americans in Somalia and that the main gateway for those 12 people is Kenya. Therefore, there must be a center for them 13 in Kenya." 14 Wow. That's the insider, that's the guy in the group 15 who says, "Oh, my God, they may know the truth," and this is 16 what the truth is. Let the boss know there's a problem. Did 17 Al-Fadl get lucky and just guess that? The important point 18 is, back in 1993 al Qaeda may have worked with different 19 tribes. It's not who they were working with. The point is 20 the state of mind as to who they were working against. 21 And of course, you also heard with regard to Somalia 22 that in the fall of 2000, Kherchtou tells what he knows, and 23 he says he talked to Harun and Saleh, and one of them, 24 probably Harun, told them that they were up in Mogadishu 25 during the fight against the Americans and they were up in 5916 1 Mogadishu and they wanted to build a truck bomb to put it in 2 the U.N. compound but didn't succeed. And for that, 3 Mr. Schmidt tells you there's a timing problem, and again I 4 reference that theme: Form over substance. And let's walk 5 through the timing problem. 6 I'll give you a hint to what the answer is right now. 7 Most people, many people, often remember events by what 8 happened, not the date. You may remember that that thing 9 happened at your cousin's wedding and it turns out that you 10 think your cousin's wedding is in 1993 and it was in 1992. It 11 doesn't mean you weren't there, it doesn't mean it didn't 12 happen, it means you're not good with dates. 13 And I can give you a very good example to show how 14 Kherchtou can be off on dates, but right. Let's talk about 15 the surveillance, the surveillance team coming to Nairobi. 16 You remember Kherchtou's in Nairobi and he says that Abu 17 Mohamed al Amriki -- you know Abu Mohamed, the person whose 18 house was searched in California -- comes to Nairobi. He also 19 says Fawwaz, the guy that Wadih El Hage would later replace, 20 comes to Nairobi, and Anas al Liby. Anas al Liby, whose 21 passport photo was later found in Wadih El Hage's files, he 22 comes, too. 23 And he says when they come, they borrow his apartment 24 to do surveillance. And not being an idiot, seeing a 25 surveillance team there with cameras, he knows there's 5917 1 surveillance. Then he says later on, and he thinks he says 2 it's 1994, later on, he says, and after that, Fawwaz was 3 arrested in his apartment, the same apartment. And he knows 4 that that came afterward because if he had been arrested in 5 his apartment, no one would have ever used that location 6 again. If they are watching your apartment, you don't use 7 that to conduct surveillance. That came later. 8 And he remembered that when Fawwaz was arrested, it 9 was Ramadan because he was walking home when he learned about 10 the arrest and he's been fasting all day, he's waiting to eat, 11 and he comes home and he sees a neighbor. And then after 12 Fawwaz is arrested, Fawwaz is in jail, they pay the bribe, he 13 gets out, Fawwaz flips to London, and Wadih El Hage comes. 14 Now, he says 1994, but what matters more is the 15 sequence: Surveillance, arrest, out of jail. The arrest is 16 in Ramadan. There's a stipulation. Ramadan was February of 17 1994. So if Kherchtou is correct, Ali Mohamed and Khalid al 18 Fawwaz have to be in Nairobi at the same time, sometime prior 19 to February 1994. 20 And you can look at the exhibits, 622A, the Fawwaz 21 passport found in Wadih El Hage's files, and 362, Ali 22 Mohamed's passport, and they both arrive in Nairobi in 23 December 1993. Boom. Dead on, the same time. 24 Now, of course, what you have learned is Kherchtou 25 described this 1994 event, which is really 1993. He's got his 5918 1 years off, but it happened. 2 What did Mr. Schmidt ask Mr. Kherchtou about the 3 conversation that Kherchtou had with Harun and Saleh? Go to 4 transcript 1450 -- I'm sorry, that was the surveillance. 5 1445. I'll read the question, but you can have anything read 6 back that you would like. 7 "Q. Did Abu Mohamed el Masry go to Somalia at some period in 8 time?" 9 And remember, Saleh is Abu Mohamed el Masry. 10 "A. Yes. 11 "Q. Now, did he go -- was it -- withdrawn. 12 "When he went to Somalia, was it in 1994; isn't that 13 correct?" 14 Now, remember, he argued to you it couldn't have 15 happened because the Americans are gone by 1994. I submit to 16 you the answer he wants is 1994. 17 The question again: 18 "Q. When he went to Somalia, was it in 1994; isn't that 19 correct? 20 "A. (From Kherchtou) Abu el Masry, he went to Somalia, yes. 21 "Q. It was in 1994 that he went to Somalia; isn't that 22 correct? 23 "A. He went before that, I think, yeah." 24 So Mr. Schmidt pulled out a document and said, well, 25 here's a report, you said before it was 1994, and refreshes 5919 1 his recollection. Then on redirect we bring back and show him 2 the other part of that document that says when Harun and Saleh 3 went up there, they were fighting the Americans. So Kherchtou 4 says when they were there, the Americans were there. That's 5 the important point -- when the events took place, who was 6 there, not the calendar. 7 I submit to you if you recall the time when Kherchtou 8 was called back, he talked about how it was that when he saw 9 Harun and Saleh, they talked about what happened in Mogadishu. 10 And the last question I submit to you, you can check the 11 record, Mr. Schmidt changed it: 12 "It is your understanding that Harun and Abu Mohamed 13 el Masry went to Mogadishu after you came to Nairobi for the 14 second time; isn't that correct?" 15 And then argues to you there was a time frame 16 problem. I submit to you there is no time frame problem. 17 Kherchtou met with Saleh and Harun and they told him what 18 happened. They made it painfully plain that America was the 19 enemy in Somalia. This is Harun who is telling Kherchtou, 20 Harun, who is El Hage's deputy living in his house, using his 21 computer. I submit to you that it is damning to show that El 22 Hage knew America was the enemy a long time ago. 23 Form over substance. 24 Stingers. Airplanes. Airplane trips. You heard 25 about Stinger Missiles. No one contended that Stinger 5920 1 Missiles were actually flown from Afghanistan to the Sudan 2 into Somalia. 3 You don't know the dates now. El Hage has in his 4 notebooks the airplanes, but you can look all the way through 5 the notebooks and there's no reference to Stingers. What you 6 will see, Mr. Schmidt said Mr. El Hage writes everything down. 7 Well, he writes everything down except bad passports, Stingers 8 and trips to see Bin Laden in Afghanistan and contacts with 9 people for fake passports. 10 The point was al Ridi told you he recalled 1993. 11 He's having a conversation about the airplane. The point is 12 back before anyone got to the Sudan, Kherchtou, Al-Fadl, told 13 you back in Pakistan, before they left, they're saying America 14 is the enemy. El Hage is in the Sudan trying to get Stinger 15 Missiles from Pakistan to the Sudan, at a time at least 16 America is the enemy, if not America is in Somalia and already 17 the enemy. 18 Remember Mr. Schmidt's opening. Mr. El Hage related 19 to Bin Laden as nothing other than a businessman. Well, a 20 businessman is getting Stinger Missiles. 21 What's more important? Focus, focus on the airplane 22 trip of Abu Hafs -- classic example of why it is that you now 23 know more than some of the members or former members of al 24 Qaeda know, because the trip of Abu Hafs to Somalia pulls a 25 lot together. 5921 1 Mr. Schmidt didn't talk about that. He told you that 2 because Wadih El Hage once thought about during a phone 3 conversation taking a flight on El Al, then you should think 4 differently of him. 5 Focus on this flight. Al-Fadl tells us that Abu Hafs 6 goes down to Somalia in 1993 and takes these trips. What do 7 you learn? Essam al Ridi comes forward and says Wadih El Hage 8 has him buy the airplane, he brings the airplanes over. And 9 Mr. Schmidt said the other day, once the deal went through, 10 transcript 5642, Mr. El Hage was done with it. He got the 11 plane, he did his job as an employee of the companies, and 12 that was it. 13 But, no, al Ridi goes home to America and gets called 14 by El Hage again. He takes this special flight, this charter 15 flight down to Kenya. Remember what al Ridi told you: He 16 flew five people down to Kenya. He gets off, he stayed in a 17 hotel, and then he went someplace else, one of those propeller 18 flights 19 What did Kherchtou tell you? He says when he gets to 20 Nairobi, he was told -- and he got there in October of 1993 -- 21 that the plane was used to fly Abu Hafs down to Nairobi with 22 other guys, four other guys, I believe -- you can check the 23 record -- and then they went up to Somalia. The Abu Hafs trip 24 to Somalia that Al-Fadl told you about, one of the two was 25 that Essam al Ridi flight that El Hage arranged, the jet to 5922 1 Nairobi, the propeller job, up to Somalia. 2 Mr. Schmidt asked Kherchtou the time frame on that. 3 Kherchtou was very firm. It happened before he got to Nairobi 4 in October 1993. There's no 1994 problem. El Hage, at a time 5 when America is the enemy, at a time when the evidence shows 6 you it's clear to Harun and others that they're fighting the 7 Americans in Somalia, El Hage is the one arranging the flight, 8 bringing the military commander down to Nairobi from where he 9 would then go to Somalia. 10 Perjury. Let's talk about perjury. Let's be blunt. 11 I submit to you you heard ten of the most pathetic excuses of 12 perjury ever known. Let's go through them. 13 Number one, focus for a moment on someone standing up 14 and telling you the government is form over substance, Mr. El 15 Hage has a pure heart and a clear conscience, and then what 16 are you told regarding those answers? Number one, you were 17 told he was never even asked questions about anti-American 18 activities. I'll quote transcript 5621. "And if you look in 19 the Grand Jury, he is not even questioned about anti-American 20 activity." 21 Well, you may not remember word for word of the 22 transcript, but in 1997 there are a whole lot of questions to 23 El Hage about what Bin Laden's doing. He declared war. What 24 do you know about it? Bin Laden declaring war on America is 25 about anti-American activity. 5923 1 1998, first question right out of the box: Who 2 bombed our embassies? The last questions when he gave those 3 ridiculous answers that "it looks like my writing, it looks 4 like my name, but it's not my writing, it's not my name." 5 This guy, the terrorist, spends his days 6 counterfeiting things, writing letters to and from him, he's 7 told flat-out, this is no joke, 2 -- at the time was a higher 8 number -- over 200 people were believed to be dead and this 9 was about a bombing of the embassies. The Grand Jury was 10 about anti-American activity because it's a crime. 11 We've been accused of waving the flag in this case. 12 You know who brought America to this courtroom? It came in 13 twice. The defendants plotted to kill and murder United 14 States nationals. That's what they did. We have to prove it. 15 If we didn't bring America into this courtroom, we wouldn't 16 need a burden of proof, which we welcome and we have met. And 17 Mr. El Hage in his opening said he is someone who shared in 18 this tragedy as a fellow American citizen, so we do have to 19 talk about America. 20 The second excuse -- by the way, if he wasn't asked 21 more about anti-American activity, I submit to you, how could 22 he be? If he doesn't say, he won't admit Abu Ubaidah ever 23 came to Kenya, much less drowned at the lake where he was 24 investigating him, how can you follow up? How could he be 25 asked by the Grand Jury anymore: Well, that person you don't 5924 1 admit knowing that you are lying about, could you tell us what 2 kind of anti-American activities they would be engaged in if 3 you were to tell us the truth? 4 Second excuse. He was tired, jet-lagged and 5 confused. Ironic, because during the conspiracy part of the 6 case he was busy as a beaver flying all over the world, the 7 international businessman, getting it all done. Then, the 8 Grand Jury, jet lag hits. 9 I submit to you when you look at the questions, no 10 one asked him to do high math, he wasn't being asked to do 11 nuclear physics, it wasn't a complicated test, he was being 12 asked a complicated question as, "Have you seen Usama Bin 13 Laden?" It's September 24, 1997. He saw him the month 14 before. 15 I submit to you, with all that was going on in the 16 Harun report, all that was going on in the world about Usama 17 Bin Laden, if you saw Usama Bin Laden and you took a secret 18 trip overseas to Pakistan or Afghanistan to see Usama Bin 19 Laden, you would remember it. You don't forget it because of 20 jet lag. 21 By the way, not a word, not a word in that 22 transcript, ever, "I'm confused," never "I'm tired," never 23 "have a break." You can look at the dates, the times. He's 24 in there for like four hours, 10:30, stops at 4:00. He 25 actually corrects, if you read the transcript, he corrects the 5925 1 questioner once. The questioner says, Exhibit 64. No, 2 Exhibit 54. It's not jet lag, it's perjury. 3 The third argument: They didn't show him his 4 documents, as Mr. Schmidt said at 5652. The government has 5 his documents, didn't show it to him, and now asks you to find 6 him guilty of perjury. Well, two things about that: Number 7 one, you don't need a document, you don't need a notebook to 8 figure out whether you have just went and visited Usama Bin 9 Laden. It's not a trick question. It's not a detail. You 10 went and saw him or you didn't. 11 But of all people to make that claim. His files, he 12 was told, you were brought back to the Grand Jury and said 13 your files have been found. They show you are lying. Let's 14 talk about these documents. And he is shown the documents and 15 he says, I didn't write it, that's not my letter. That looks 16 like my name. That's not my handwriting. It looks like my 17 handwriting. He was shown his documents and he lied. 18 The photographs. Mr. Schmidt said, form over 19 substance, it's unfair. How does the government charge that 20 man, the American citizen, with three Counts of perjury for 21 not recognizing photographs. And there are people taking that 22 witness stand, witnesses who don't recognize people. Okay, 23 sounds nice. Let's look at the facts. 24 He was charged with three counts of perjury that 25 involve photographs. Were they obscure photographs? Was he 5926 1 given 100 photographs? Go through them all. Oh, you missed 2 one. Perjury. No. No. No. The three photographs were Abu 3 Ubaidah al Banshiri, Ali Mohamed, the Abu Mohamed fellow, and 4 Mohamed Sadeek Odeh. If you look at the record, each person 5 was talked about at least twice with him and he lied. And not 6 only that, for each of them he was given the answer. He was 7 given a test, not an open book test, an open book test with 8 the answer filled in, but he denied it. 9 Let's walk through it. Abu Ubaidah, 1997, he says, 10 hey, I don't know the guy. I went to look for Adel Habib, 11 some Dutch businessman who drowned. He's brought back and he 12 is shown the picture. And you look at the transcript: Isn't 13 that a picture of Abu Ubaidah? No. The loan document says 14 Jalal, isn't that Jalal? No. He's asked in 1997, he's asked 15 in 1998, he's asked by Miranda. He just lies and lies and 16 lies, and he's charged. 17 Ali Mohamed, he says he doesn't recognize him in 18 1997. I show the picture in 1998. And again, let's look at 19 the picture. Is this a guy from California? Is his name Ali 20 Mohamed? Here's a letter from his work. Sunnyvale, 21 California. Isn't that Ali Mohamed? Nope. That's not him. 22 I don't know him. 23 Mohamed Sadeek Odeh, Mohamed Sadeek Odeh who is on 24 the telephone with him as Marwan. Now, Mr. Schmidt would like 25 you to believe that, gee, that's pathetic. We just put 5927 1 Kherchtou up there. That's the only proof that's Marwan on 2 the phone. 3 Well, you heard that there are tapes in evidence of 4 Odeh talking to his wife, the tape recorded letters, okay. I 5 submit to you El Hage has no burden of proof, but if he thinks 6 Kherchtou got up and lied on the witness stand and said that's 7 Marwan, but it's not, instead of bringing a handwriting 8 expert, why didn't you have someone take that tape, listen to 9 the tape with his wife, listen to his tape with El Hage and 10 compare the voices? 11 Not only that, but Kherchtou identified a different 12 transcript where Marwan, Odeh, spoke to Harun. Compare that 13 voice, and you know what? During this conversation Harun says 14 to Odeh: How's Yasr? And you have learned that Odeh has a 15 son named Yasr. It's Marwan. It's not form over substance. 16 It's Marwan. It's Odeh. And El Hage lied about that. 17 Odeh is the person that when El Hage comes back with 18 a new policy from Afghanistan, Marwan, Odeh, goes north of 19 Somalia. He's shown the pictures, he's shown the pictures by 20 Agent Miranda in Texas, and he lies and says he doesn't know 21 them, he just knows them from T.V. He's shown the picture in 22 the Grand Jury and asked, "Isn't that Mohamed Odeh?" And 23 Mr. Schmidt argued to you he was shown photos we now know are 24 Mohamed Odeh. I submit to you, he was shown the photos, he 25 was given the answer, he just flat-out lied. 5928 1 Fifth argument, fifth excuse: He told them 2 everything they needed to know about Fawwaz, Harun and Abu 3 Ubaidah. We'll deal with that real quick. Sure, he told the 4 Grand Jury that Fawwaz is in London as a spokesperson for Bin 5 Laden. Well, first of all, he thinks that al Tayyib is 6 talking at the time. 7 Second, we showed you a document, there's a public 8 announcement in 1994 signed by Bin Laden that says Fawwaz is 9 appointed as the head of this committee in London. He told 10 you something that basically you could find out from the phone 11 book. 12 What did he leave out? By the way, Fawwaz used to be 13 head of a military command camp back at Afghanistan, one at 14 which Odeh trained. By the way, Fawwaz used to be in Nairobi. 15 He was a cell leader of al Qaeda. By the way, Fawwaz got in 16 trouble down there. Bribed his way out of jail. By the way, 17 Fawwaz was replaced by me, Wadih El Hage, in Kenya. 18 How about Harun? Oh, sure, he said he knew Harun. 19 He just never knew him to have anything to do with Bin Laden. 20 Is that everything the Grand Jury needed to know about Harun? 21 About Abu Ubaidah, he said someone drowned, a Dutch 22 businessman, Adel Habib, not a military commander of a 23 terrorist group. 24 The sixth argument, the sixth excuse: The questions 25 are not important since the government knew it all already. I 5929 1 submit to you -- and he says to you, look, they had the 2 wiretap, they had his notebooks. Well, is the wiretap 3 self-evident? You heard that Kherchtou identified voices in 4 the wiretap. You saw some unidentified voices in the wiretap. 5 Did the government, did the Grand Jury know 6 everything at that time? And what about his notebooks? Well, 7 the Grand Jury cared only about habiscus and sesame seeds. 8 They knew a lot. There's nothing in there about Stingers, 9 there's nothing in there about fake passports, there's nothing 10 in there about him going to see Bin Laden. 11 The government, even if the Grand Jury had access to 12 what the government had, they had his documents, they didn't 13 have what was in his mind and what the Grand Jury has a right 14 to when people are put under oath -- your truthful knowledge, 15 your truthful recollection of what happened. 16 It was argued that it just wasn't fair the way the 17 questions were asked in the Grand Jury. I'll give you one 18 example. It's in a count. It's on the document. "Have you 19 seen Usama Bin Laden anyplace in the world in 1995, '96 or 20 '97?" What's so hard about that? 21 We'll talk about the Abu Ubaidah letter. Remember 22 the letter that somehow the ostrich fits in? He's on an 23 ostrich. He wrote a letter to his brother-in-law, July 14th. 24 There's a stipulation he wrote it. He says he didn't write 25 it. So, therefore, he's not lying since he must be mistaken 5930 1 since he really did write the letter, and now we agreed that 2 the letter he said he didn't write he wrote. 3 He must be confused because it's not al Qaeda. Well, 4 fine. It's a letter to his brother-in-law. But you know 5 what? He had already been told his files had been found. He 6 had already been told in the Grand Jury that his files showed 7 he was lying, and he already had been shown documents and 8 said, "I didn't write them." He can't then say, "Oh, but that 9 one, that's mine. That writing really is mine. There where 10 it says Wadih, that's Wadih," and then take the next document 11 and say otherwise. 12 Let me just cut the perjury discussion short with 13 this: Mr. Karas quoted to you Mark Twain and Abraham Lincoln. 14 I'll quote to you someone different. I'll quote to you 15 Mr. Schmidt. 16 In discussing other witnesses, he said to you, at 17 transcript 5683: "You can tell when you have bad guys who 18 just can't stop lying, who make things up." I submit to you, 19 you keep that in mind when you look at those perjury counts, 20 and I also submit to you that you keep in mind the 21 significance of the perjury counts for two reasons: 22 Mr. Schmidt told you that Mr. El Hage made a bayat to 23 America. Mr. Schmidt told you that to blame him for anything 24 that happened from the government not figuring anything out 25 was unAmerican. He said it's unfair, inaccurate, unAmerican. 5931 1 He implied that this is about a lack of patriotism; 2 you can't charge someone with a lack of patriotism. I tell 3 you right now, no one is on trial for a lack of patriotism. 4 That's not a crime. Americans have gone to war to allow 5 people to express a lack of patriotism. 6 El Hage is on trial for perjury because it's a crime. 7 Like everybody else, whether he likes America or not, whether 8 he's a citizen or not, you are in the Grand Jury, you're in 9 this courthouse, you raise your hand, you take an oath and you 10 tell the truth. I'll tell you something else: It goes beyond 11 a crime against America. 12 MR. SCHMIDT: Objection, your Honor. 13 THE COURT: Overruled. Argument. 14 MR. FITZGERALD: Look at 1998. When he was in that 15 Grand Jury, two buildings had been bombed. In the first one, 16 213 people lost their lives, thousands were injured. In the 17 other building, 11 people lost their lives. And he's brought 18 before the Grand Jury, he takes an oath and he shows nothing 19 but contempt for that oath, for that bayat for whatever 20 country, contempt for human decency. 21 If you lied in 1997 and you realized that people that 22 you were lying for, lying to protect had carried out such an 23 atrocious deed, if you have a pure heart, if you have a clear 24 conscience, speak the truth. Don't make up a sad, pathetic 25 excuse that you didn't write those documents, you don't know 5932 1 anything. 2 I submit to you it shows something. It shows that 3 what El Hage was about was lying to protect the enterprise, 4 the group he knew back in 1993 was fighting America, the group 5 he knew all along was fighting America, the group he was 6 playing a game for. And he showed it in '97, and if there's 7 any doubt in your mind, he showed it in 1998. It may have 8 been brazen, it may have been arrogant, it was perjury. 9 Let me talk to you briefly about the notion that it 10 was the great American coming home, that's why he came back to 11 America, because he loved the place. 12 Well, I submit to you if that was the story, then you 13 wouldn't have seen that perjury in the Grand Jury, you 14 wouldn't have seen that violation of an oath about an awful, 15 awful crime. 16 Think about this: It's 1994 in Nairobi and Khalid al 17 Fawwaz gets arrested, gets himself out of jail, and he runs 18 and hides in plain sight off to London, opens a press office, 19 hangs out there, takes the heat away. Fawwaz is gone. 20 Who else comes to Nairobi? Abu Mohamed al Amriki, 21 the surveillance guy, Abu Mohamed. And what did you learn 22 from Kherchtou? Kherchtou says he gets a call on El Hage's 23 cell phone saying there's a problem with American security, 24 American intelligence. He has to answer questions or he has 25 to talk to. 5933 1 By the way, you can check the phone records, and Ali 2 Mohamed's phone records go right to El Hage's cell phone, 3 corroboration Kherchtou. What did he do? You saw he went 4 back to America, never to be heard from again in Kenya, no 5 contact between him and the government. 6 Remember, you heard all about Mr. El Hage told the 7 government where he was traveling. There were phone calls 8 from Ali Mohamed to the government, and you saw in 1998 he was 9 still here lying in the Grand Jury. 10 I submit to you when the heat was on Fawwaz, he ran 11 and hid in plain sight in London. The heat was on Abu 12 Mohamed, go to California, take the heat away from the group. 13 In the summer of '97, that's what Wadih El Hage did. 14 Everyone's onto me, they're looking at me, I'll just go to 15 Texas, I'll lay low and take the heat off. That wasn't love, 16 that was strategy. 17 Let's talk about conspiracy. This case is not just 18 about perjury, but what you ought to understand, it's not like 19 it's conspiracy over here and perjury over there and never do 20 they meet, because I submit to you part of what El Hage did 21 for the conspiracy was his perjury. Part of it was to block 22 the American government from finding out what it could. 23 Remember what the standard will be when Judge Sand 24 explains it to you. You will learn that you don't have to all 25 sit around a room, one big giant table, raise your hand and 5934 1 say, I solemnly swear that now I'm going to kill Americans, in 2 violation of Title 18, United States Code, Section 1117. It's 3 what you understood, what you mean to do, and your actions 4 speak louder than words. 5 Mr. Schmidt told you about a conspirator versus a 6 facilitator. He said they can't just prove he's a 7 facilitator, they have to prove he's a conspirator. I submit 8 to you, take the instruction from Judge Sand on the law. You 9 may well learn that a person can be part of a conspiracy if 10 they knowingly and intentionally want to help that conspiracy 11 to succeed, if their role is a facilitator. 12 Kherchtou explained it to you. You don't have to 13 shoot the gun if you are helping someone else that you know is 14 going to do it. 15 Fake passports. We heard the argument, yeah, okay, 16 maybe some fake passports, that's okay, that's a third world 17 thing for dissidents. Only you suspicious Americans think 18 that someone getting fake passports is something else. 19 Well, what are dissidents to a terrorist group? 20 There's an introduction in one of these documents, Usama Bin 21 Laden is a dissident, a dissident who blows up embassies. 22 Omar Abdel Rahman is a dissident. And what are we finding 23 out? Mr. Schmidt tells you some of these persons have 24 Egyptian names. He said, "In fact, many of the people," from 25 5631, "who espouse retaliation have 'el Masry' at the end of 5935 1 their name, meaning they are Egyptian. And what does 2 retaliation mean for the people they are talking about in this 3 case with the name el Masry? Violence." 5632, "This is the 4 code they use at that time to protect themselves against the 5 Egyptians, the Saudis, the Kenyans if you are in Kenya, and 6 perhaps the Americans who turn over dissidents to Saudis and 7 Egyptians." 8 And you heard that the group believed that America 9 was responsible for turning people over to different 10 countries. That was offered for state of mind. You haven't 11 heard whether it's true or false or what these people were 12 arrested for, if they were, but to the extent those groups are 13 angry at America and want to retaliate for violence and you 14 provide them passports, you are giving passports to people who 15 are angry at America and want to retaliate, that's not 16 irrelevant. I submit to you that's in the heart of being part 17 of a conspiracy to help others, part of a conspiracy to kill 18 Americans where you are helping others who want to do it. 19 That's true in the United States, that's true in 20 France, that's true in the third world. We're judging 21 everyone by the same standard, and I tell you his perjury was 22 committed right here in this courthouse. 23 Mr. Schmidt argues to you that not a single piece of 24 evidence points to a conspiracy to kill nationals, and you 25 will see that as a theme that many of the defendants wants to 5936 1 argue to you about single pieces. You put a puzzle together 2 over the course of a trial, a picture emerges. Knock the 3 puzzle apart, take up each piece and say this doesn't do it, 4 this doesn't do it, this doesn't do it, but you have to take 5 it all together. 6 But there are a lot of pieces. What are some of the 7 pieces? Arranging a plane trip for the military commander to 8 go to Somalia, Abu Hafs; taking over the Kenya cell from al 9 Fawwaz. And remember, Mr. Schmidt pointed out, well, gee, 10 he's not the new leader because the wiretap call shows that 11 Mustafa Fadhil took over after the death of Abu Ubaidah. 12 I submit to you Kherchtou told you Ubaidah was the 13 boss, but he also went to Fawwaz. Ubaidah, the military guy. 14 Fawwaz is a military guy. Ubaidah leaves, Mustafa Fadhil 15 replaces him. Fawwaz leaves, Wadih El Hage replaces him. 16 We argue to you that he was a leader. Not the only 17 leader. I submit to you that taking over Fawwaz's duties, 18 taking a trip back to Bin Laden in February of 1997, bringing 19 back a new policy which he delivered to Mustafa Fadhil to 20 bring down to others in Mombasa, including Odeh, passing coded 21 messages, helping people with fake passports, passing out the 22 Jihad phone number, think about that. I mean, it sounds funny 23 afterwards sometimes when you think about the Dr. Atef clinic, 24 but it's not funny. It sounds like a poor code once you 25 figure it out, but that's what codes are like. 5937 1 If you were listening to that call, didn't it sound 2 like Wadih is telling Harun he had to go to the doctor? But 3 he's giving Harun, the man who was in Mogadishu with Saleh, 4 the man who would blow up the embassies, a man involved in 5 military activities, the phone to hook up in Kandahar with Bin 6 Laden. 7 That's important. That may be facilitating, but if 8 you are doing that so Bin Laden and Harun can get together to 9 fight the enemy, America, that's conspiring. 10 I submit to you there's great proof in this case from 11 the call between Harun and Abu Ubaidah al Banshiri what they 12 believe Abu Fadhl is the corroboration, there is great 13 corroboration from the Harun report and there's great proof 14 that Wadih El Hage wanted this conspiracy to succeed by lying 15 repeatedly and repeatedly on two different occasions in the 16 Grand Jury. 17 I'm going to try and wrap this up quickly on El Hage. 18 Let me talk about Harun, the kid. Let me just say to you, you 19 look at that document and that makes clear not that Harun in 20 the security report just found out in the summer of 1997 that 21 America was the enemy. No, he just found out that his 22 terrorist boss got on T.V. and told the Western world on CNN, 23 he's the one saying they know we're the enemy, we attacked 24 them in Somalia. 25 This is not what Mr. Schmidt said proved that 5938 1 everyone in Nairobi figured out America was the enemy in 1997. 2 It's Harun. He figured that out in 1993. He's in Mogadishu 3 with Saleh. He's saying, my God, if they know that, they're 4 coming after us. What he's writing is that they declared war 5 in the summer of 1997. He was on T.V. He's telling the 6 world. It's like the mob boss getting on T.V. and saying 7 we've got a mafia family. Sure, they react. It's not like 8 the people in the mob saying, oh, my God, we're part of a 9 criminal enterprise. 10 The wiretap, I submit to you he contends there's 11 nothing on it. Look at those calls. There's plenty. But 12 bear in mind that the whole time in the wiretap El Hage 13 thought he was being tapped. You heard his wife talk in code 14 about green papers. You heard them talk in code about the 15 Dr. Atef call. 16 In the Harun report, his wife is telling Harun, I 17 think the T.V. is bugged, there's a lady across the street, 18 she's American, something funny, there are funny sounds from 19 the phone. It's remarkable what you did get in either of what 20 those calls are. 21 Notice how when he got the Taliban report, the report 22 written by Abu Hafs takes off the name at the bottom before he 23 faxes it out. That's someone who is thinking, thinking I 24 don't want them to know what I'm doing for these dissidents. 25 Okay, let me skip over certain things and just pick 5939 1 out two more points on El Hage and you'll be done with me on 2 that topic. Mr. Schmidt told you form over substance. That's 3 1600A-T, the declaration of Jihad, a proclamation against 4 Saudi Arabia. Proclamation against Saudi Arabia. 5 Let me be so bold as to read the title of 1600A-T: 6 "Declaration of Holy War Against the Americans Who Are 7 Occupying the Lands of the Two Holy Places." That's not a 8 proclamation against Saudi Arabia, that's written to kill the 9 Americans. 10 It goes on. It goes on to talk to Defense Secretary 11 Perry and President Clinton and talks about all the mocking of 12 what it is they believe and says, "The American enemy. All 13 effort must be directed at this enemy. Kill it, fight it, 14 destroy it, break it down, plot against it, ambush it and, God 15 the almighty willing, until it is gone." 16 The problem, the problem in this case for people in 17 al Qaeda in August of 1996 when this goes public is it exposes 18 what they have been doing privately. If that's not a 19 proclamation against Saudi Arabia and al Qaeda is what it 20 is -- a group fighting Americans -- then you can't pretend 21 that Harun and everyone else is learning in 1997 what it's all 22 about. 23 Lastly, you heard that Mr. El Hage was open and 24 honest with Agent Miranda, telling him his foreign policy 25 views and that sums up the case. Great, because what he told 5940 1 him was he didn't know any Bin Laden people in Kenya, he 2 didn't know any Bin Laden people in America, and you know 3 what, if he wanted to contact Bin Laden, he had to get on a 4 plane, fly to Pakistan, go to the embassy and go ask to talk 5 to the Taliban, because he certainly didn't have a phone 6 number. 7 I submit to you, look in the end at Wadih El Hage, 8 and what you see is someone who knew, who knew how to work at 9 it, who knew how to keep notebooks of just the right things, 10 who knew what was going on, was at the heart of it, an insider 11 so trusted that Abu Hafs, the military commander, would let 12 him handle his documents and not the guy he would trust with 13 surveilling the embassy. 14 I submit to you at this point in time, after you have 15 seen the evidence, as far as El Hage is concerned, the mask 16 has been stripped away. He is what he did. He worked for a 17 group that he knew was fighting against America. He wanted 18 them to succeed and he helped every way that he could, whether 19 it be fake passports, coded messages, taking trips to see the 20 boss in the cave in Afghanistan, or just coming into this 21 Grand Jury in this building, raising his hand and lying 22 through his teeth. 23 We'll pick up with the oath after the break. Thanks. 24 (Jury not present) 25 MR. WILFORD: Your Honor, we would like to, on behalf 5941 1 of Mr. Odeh, file an objection on the part of Mr. Fitzgerald's 2 argument. Mr. Fitzgerald seemed to indicate to the jury that 3 it was appropriate for the jury to use the fact that Kherchtou 4 pled guilty. 5 THE COURT: The fact that perjury was in furtherance 6 of the conspiracy? 7 MR. WILFORD: Kherchtou pled, that Kherchtou pled 8 guilty. 9 THE COURT: Pled guilty. 10 MR. WILFORD: As a basis for determining the guilt of 11 other people seated at this table on trial. He made the 12 argument -- 13 THE COURT: Could you direct me more specifically to 14 that? 15 MR. WILFORD: Yes, your Honor. It was language to 16 the effect that Kherchtou explained it best, if you know about 17 something happening, you're guilty of conspiracy, something 18 along those lines, and he said Kherchtou explained it best by 19 his plea of guilty. It was an attempt to get the jury to 20 infer from the fact that Kherchtou pled guilty, because he 21 knew of something, that people seated at this table may have 22 known of something, were also guilty. 23 THE COURT: Mr. Fitzgerald, did you say that? 24 MR. FITZGERALD: No. 25 THE COURT: I have no recollection of that being 5942 1 said. I don't have any recollection of any argument being 2 made that from the plea of guilty, you may infer anything with 3 respect to any other defendant. 4 MR. WILFORD: It's not necessarily that Mr. 5 Fitzgerald used those words from the plea, but the tenor of 6 the argument. 7 THE COURT: Tomorrow morning after you get the 8 transcript, you direct my attention to that and if there was 9 an erroneous statement, I will tell the jury. 10 MR. WILFORD: Thank you. 11 THE COURT: While we're here, the note from an 12 alternate reads: "Will you please tell us alternates what our 13 disposition is during deliberations? Will we be paid our 14 standby paid status while on call or will we be attending here 15 separate from the deliberators?" 16 My understanding is that after the jury is charged 17 and retires to deliberate, the alternates will be put on hold; 18 that they will not participate on the deliberations; they will 19 be on telephone call; if and when we reach a later stage in 20 the proceedings, they will rejoin the jury. Is that 21 everybody's understanding? 22 MR. RUHNKE: I'm not sure about the latter part. 23 MR. COHN: I'm not sure either. 24 MR. RUHNKE: Also at issue, do you want jurors here 25 if the jury has questions and you are instructing them, the 5943 1 alternates? 2 THE COURT: Do I want what? 3 MR. RUHNKE: For example, the jury asks a question, 4 your Honor will give a clarification, do you want alternates 5 here listening to it? 6 THE COURT: No alternates here. They would like that 7 because that would mean they would get paid. Why would the 8 alternates need any clarification with respect to a question 9 during deliberations? 10 MR. RUHNKE: In the event they have to be 11 substituting a juror. 12 MR. COHN: They will do it over my objection. 13 THE COURT: Well, first of all, if a juror becomes 14 ill during deliberations, the rules now provide that an 15 11-person jury is sufficient. There's a time when you would 16 bring in an alternate and start over again. I think that is 17 no longer the process. 18 MR. RUHNKE: Your Honor, just a caveat on that: I 19 don't know of any cases where an 11-person jury has returned a 20 capital murder verdict. 21 THE COURT: There are a lot of things we don't know 22 about capital cases. 23 MR. RUHNKE: Silence should not necessarily be 24 acquiescence in that observation. 25 THE COURT: No, no, but I'm interested in the fact 5944 1 that you don't think that the alternates return for the 2 penalty phase. As I see the penalty phase, it can go on for 3 quite a substantial period of time and the whole theory of the 4 procedures set out is to have the jury that hears the 5 deliberations pass on the penalty phase, if we get to it. 6 MR. RUHNKE: It has happened before. It has happened 7 that an alternate juror has had to be substituted into the 8 penalty phase. It's not happened in this circuit. Arguments 9 have been made, I think there's one Seventh Circuit case, I'm 10 not sure which case it is, that a juror that did not 11 participate in the guilt phase proceeding should not be 12 allowed to participate in the penalty phase, whether we come 13 to that bridge or not, but it's hardly, it's hardly black 14 letter law that that's what's going to occur. 15 THE COURT: I'm going to ask the parties to submit a 16 brief on that. It can be a letter brief. But it seems to me 17 that if there is a possibility that I will complete charging 18 the jury tomorrow, depending on when we start, we have to know 19 the answer. 20 MR. RUHNKE: Nobody is objecting to having the 21 alternates stay around during the first stage of the 22 proceeding. I don't know if you have -- I don't hear an 23 objection to that. 24 THE COURT: What is the advantage to that? What is 25 the advantage to having the alternates sit in the courtroom? 5945 1 MR. RUHNKE: When I say "stay around," I mean not 2 discharged, remain on call. 3 THE COURT: They will be on telephone call. They 4 will call in. 5 All right. Let's all think about that and I will not 6 respond to the alternates' question today. We'll take a 7 five-minute recess. 8 (Recess) 9 THE COURT: There's something of while we're 10 researching the question of the alternate jurors and the jury 11 in the penalty phase, the jury has to sign a statement. We 12 have an anonymous jury, so we have to work out the mechanics. 13 And I think what I would propose is the jurors sign a 14 statement giving their juror numbers and then there be one 15 other attestation which we do with 12 copies, each one signs 16 one, and then seal it. 17 MR. COHN: Your Honor, I would just think if we 18 consider having them sign it, put their number next to their 19 signature, seal the original and give us a redacted version. 20 I don't know why that would make me happier at first blush. 21 THE COURT: Think about that. They don't, I think, 22 know each other's name. I don't know if they all sign -- it's 23 a mechanic, but we should be prepared and explore it. We may 24 have lots of time. The jury is deliberating in the first 25 phase, but one never knows. 5946 1 Mr. Ruhnke, would you check with the think tank on 2 the death penalty and see whether there is any actual 3 experience with respect to alternates? 4 MR. RUHNKE: Yes, your Honor. 5 THE COURT: I appreciate that. 6 (Jury present) 7 THE COURT: Mr. Fitzgerald, you may continue. 8 MR. FITZGERALD: Thank you. 9 Now let's talk about the defendant Mohamed Odeh and 10 again another example of how it is, if you take a puzzle, you 11 knock out all the pieces and the picture is gone, each little 12 piece may not look like it's enough, but I tell you in the 13 end, when we review the evidence, it is clear that Mohamed 14 Odeh participated in the charged conspiracies and it is clear 15 that he participated in the bombing. 16 Now, Mr. Wilford and Mr. Ricco indicated that the 17 government waved the flag, "Waved the flag, we're Americans. 18 He's not. Convict him." If there's any doubt in your mind, 19 the only thing we'll wave in this courtroom is the evidence. 20 If we meet the burden, as I submit we have, and we'll show 21 you, convict; and if we don't, acquit. We don't want the bar 22 of justice to be any different in this case. In fact, it's 23 more important in this case that we follow justice. 24 I'll talk to you about justice in the end. 25 Mr. Ricco and Mr. Wilford made comments that 5947 1 sometimes the government shaded the truth or twisted a word or 2 didn't tell you things because it didn't fit our theory or 3 twisted the facts. I submit to you, we'll review how it was 4 that everyone dealt with the facts as we go through this. 5 I also submit to you that the Odeh defense, in part, 6 set up what's called a strawman, like a scarecrow out there, 7 like a fake argument sometimes, things we didn't prove, that 8 we never tried to prove, we never claimed to prove. 9 Did anyone ever tell you we would prove Odeh picked 10 the time of the bombing or bought the truck? No. And you 11 know what? We didn't prove we did. We didn't prove Odeh 12 bought the truck. We didn't prove Abu Hafs bought the truck. 13 We didn't prove that a lot of people bought the truck because 14 we proved somebody else did. 15 But what we have to do is focus on the evidence and 16 how it fits together. Yesterday Mr. Ricco did two 17 comparisons. He compared Odeh at the beginning to both 18 Sikander, the government witness, and to Kherchtou. And let's 19 talk about those two comparisons because they illustrate an 20 important point. 21 What did we hear about Sikander? We heard that he 22 delivered money for al Qaeda secretly. That's not quite 23 right. Sikander told you he received money from Wadih El Hage 24 and Harun and others from the person who was his 25 brother-in-law, and he told you he didn't know what al Qaeda 5948 1 was. 2 You were told that Sikander cleaned the house to get 3 rid of PETN. I submit to you the evidence shows that Sikander 4 didn't know what the house was being used for beforehand. So 5 why don't we do something, why don't we compare what Odeh did 6 with what Sikander did, beginning to end. 7 Odeh, a trained member, a sworn member of al Qaeda 8 since 1992, he went to the camps. He was trained in military. 9 He was trained in explosives. He received advanced training. 10 He received religious training. He made a bayat and he swore 11 an oath. 12 Sikander does not know what al Qaeda was, never went 13 anywhere near Afghanistan. Odeh, involved with al Qaeda in 14 Somalia. Sikander, never been to Somalia. Odeh knew Abu 15 Ubaidah as a military commander. Sikander knew him as a 16 brother-in-law in that secret life Ubaidah had with other 17 family which you know about. 18 19 (Continued on next page) 20 21 22 23 24 25 5949 1 MR. FITZGERALD: (Continuing) Sikander, he rented 43 2 Runda Estates in his real name. Odeh checked into the Hilltop 3 Hotel under a fake name. Remember, Odeh is a man who can 4 handle the truth? Well, in August of 1998, he wasn't Odeh. 5 He was Abu Basit Awad, a merchant from Yemen. He checked into 6 the Hilltop Hotel. A person with a Kenyan identity card goes 7 to the hotel. Think about that. Whatever he knows, he knows 8 he doesn't want his real name on that register. 9 Odeh went to the Hilltop Hotel and saw Abdel Rahman, 10 a bomb trainer from Afghanistan. What do you think he thought 11 when he saw a bomb trainer, someone who trains people to make 12 bombs in a hotel he checked into under a false name? He told 13 Mustafa that an operation is coming, a big operation. 14 And something else that wasn't discussed yesterday. 15 Odeh learned that the Hilltop Hotel in August 1998, that the 16 people back in Kandihar, and you know who that is, Bin Laden 17 and the rest, have relocated. Why? Because they expect the 18 United States Navy to retaliate with planes and missiles. As 19 a thinking man, as any person, when the US Navy wants to 20 retaliate, something big is happening and it's not against 21 Eritrea, it's not against Somalia, it's not against anything 22 but it's against America. Sikander, he didn't change his 23 appearance during the time in August 1998. Odeh shaved. 24 Sikander, he stayed in Nairobi while Odeh hightailed it out of 25 town, getting out of town the night before the bombing. 5950 1 You know what, I am going to use very few exhibits, 2 try to use very few exhibits. But the flight. The flight 3 becomes important sometimes and one exhibit I would like to 4 draw your attention to, if we may have 355, page 2 on the 5 screen -- 355 page 1 first. Sorry. It is something from that 6 fellow Ali Mohamed, from his house in California, the trainer, 7 the guy who did surveillance, the guy you heard a fair amount 8 about. Look at the top. The idea of working. He says there 9 were four main groups, HQ -- presumably headquarters. It's 10 got a word next to it, foreign language, maybe it's Arabic. 11 Then INF, information, with a word with the number 3 in the 12 middle. Prepare. EXCU, Tanfeez. 13 The reason I am boring you with those funny sounding 14 words is to make sure you understand what is at the bottom of 15 page 2. Under the title 4, the execution group, how to carry 16 out an operation. Look at number 8, if we could blow up 17 number 8, enlarge No. 8. 24 hours before the Tanfeez, all the 18 following three groups will evacuate Qota 3. If you look on 19 the first page it appears to be translated as sector. 24 20 hours before the operation, basically these people get out of 21 town: Al Qeada, al Mal3mut, al Tageez. Headquarters, 22 information and preparation. 23 In Odeh's own statement, Government's Exhibit 6, he 24 talks about how there were two groups, the preparation group 25 and the execution group. The preparation group were the 5951 1 people who gathered the information, who looked at the target 2 to see what it was made of, to figure out what would be used 3 to attack it. That is coming from a man who himself is an 4 architect and engineer. I submit to you when we talk about 5 the sketches, one of the things he is used for, his expertise 6 isn't in advising how to build a bomb, though he can do that 7 and he can help, but also how to place the bomb against a 8 building to do the damage. We will talk about that. But 9 again, 24 hours ahead of time, Odeh is getting out of town. 10 Organizational, that's the way they work. Twenty-four hours 11 before, people split. And of course Odeh had that sketch in 12 his house, which we will talk about, and Odeh and Sikander 13 didn't. 14 How about Kherchtou? Mr. Ricco told you yesterday in 15 regard to Mr. Kherchtou, and I will quote, page 52 -- sorry to 16 welcome him back with a quote. Kherchtou said that he was in 17 Kenya in August of 1998, that he went out looking for his 18 friend Harun, and he said he ultimately found Harun, that they 19 spent some time together. These were within days of the 20 bombing. He said Harun has some guys around him that he never 21 saw before. That's what his testimony said. I didn't know 22 these guys that were around Harun. So it wasn't Saleh, must 23 have been some other guys. Wasn't Mohamed Odeh, the bomb 24 consultant, because he knows Mohamed Odeh. He knows him as 25 Marwan, the guy he believes was in Somalia. You can point out 5952 1 over there and say I saw Mohamed Odeh running around with 2 Saleh a couple of days before the bombing. 3 The point is, if Kherchtou sees Harun with other 4 people and knows the defendant Odeh and didn't recognize him, 5 then Odeh is not with Harun. The problem with that is, it 6 didn't happen. The clear testimony is that Kherchtou came to 7 Nairobi twice: June of 1998 and August of 1998. When he came 8 in June he was outside a mosque and he ran into Ahmed Tawhil, 9 the tall one, and Harun. Harun said he was busy for a little 10 while, and then Harun took him in a truck and drove him 11 around, and they went to the airport. 12 Then, when Kherchtou came back, it is August 1998, 13 and it is within days of the bombing. And what Kherchtou told 14 you is, he went to look for Tawhil before the bombing and 15 couldn't find him. He left him a note. Then he ran into 16 Sikander and said can you get me in touch with Harun? 17 Sikander picked up the phone, called Harun's house, and the 18 wife said he's not home, he's taking his family to the 19 airport. Later he's told don't bring that guy by, we don't 20 want him around. Harun never saw Kherchtou in the days before 21 the bombing. Harun wouldn't see Kherchtou in the days before 22 the bombing. 23 Two points. If Kherchtou didn't see Harun, he didn't 24 see who Harun was with, so he can't say one way or the other. 25 Secondly, Harun did meet with Odeh. Odeh told you that, 5953 1 Government's Exhibit 6. Remember he saw him at the hotel. 2 Harun and Saleh, and you can read it, were going out to do a 3 small job, and he said Odeh, a small job is not something 4 trivial like shopping. So Harun would expose himself, show 5 himself in August 1998 to Odeh, but not to Kherchtou. 6 Let's compare Odeh and Kherchtou. Kherchtou said he 7 learned, and one of the ways he learned that Al Qaeda was 8 involved in actions against America in Somalia was because he 9 was in Nairobi helping people to get to Somalia. He never 10 went there, but he spoke to the people who were going to 11 Somalia, whereas Odeh, Odeh is in Somalia. Kherchtou left Al 12 Qaeda before the August 1996 declaration of jihad that says 13 we're at war with the American military. Odeh admitted he 14 heard that, he knew about that, and he stayed in. The leader 15 of the group he belongs to declares public war on America, he 16 doesn't leave. He's not a conscientious objector. He's not 17 saying this is wrong. He stays in from 1996 forward. He's 18 paid through the day of the bombing as a member of Al Qaeda. 19 Kherchtou leaves before Bin Laden issues the February 1998 20 fatwah against civilians and military. Odeh heard about that. 21 He didn't quit the group. He didn't say this is wrong. He 22 stayed in. 23 Kherchtou told you he understood the enemies were the 24 United States and the West. Odeh stayed in the group that 25 publicly stated our enemy is America. In fact, interesting, 5954 1 if you look at 1600A-T, the declaration of jihad, one of the 2 things I forgot to bring out, in the first page or so of text, 3 when Bin Laden is warming up he blames America for everything, 4 including what is happening in Eritrea, Ogaden, Somalia. He 5 says America is seen as being behind everything. You don't 6 have to conclude that it's Eritrea and Somalia or America, 7 because in Al Qaeda, America is behind everything they 8 perceive wrong. America can't go to feed the poor in Somalia, 9 it's colonization. 10 Back to the Kherchtou/Odeh comparison. Kherchtou, 11 let's look at 1993 when the apartment is used for 12 surveillance. We don't know whether the apartment is in his 13 real name or his fake name. It is not in evidence. Odeh at 14 the hotel is using a fake name. Kherchtou, when he sees 15 someone coming to the apartment with surveillance training, 16 bingo, thinks maybe surveillance. What does Odeh think when 17 he walks into the Hilltop Hotel and sees his trainer and bomb 18 maker from Afghanistan? What is this man suddenly doing in 19 Nairobi, particularly when Odeh even admits, even by his own 20 statement, which we will go through, and it is a dance, by his 21 own statement he knows about the fatwahs. He's had a 22 conversation in the spring of 1998 with Mustafa Fadhl, with 23 the prospect of an operation that has to be discussed. This 24 Mustafa Fadhl is saying I am against operations in Kenya 25 because I like Kenyans, but Saleh is for them. He's been told 5955 1 it's an emergency, he's been told that all of Al Qaeda has to 2 leave by August 6 -- not soon, by a date. Out of town by 3 Thursday, August 6. And he shows up in a hotel. Whatever 4 he's thinking, he's not putting his Kenyan i.d. card down 5 there. He is coming as Abu Basit Awad, and he sees his 6 trainer in bomb making, who doesn't like the nightlife, is 7 staying out all night. 8 When Kherchtou is in the apartment in 1993, the 9 people in Al Qaeda in Kenya are staying. In 1998, when Odeh 10 is at the Hilltop Hotel, everyone is going. Odeh is told in 11 1998 that whatever is going on, something is going to happen 12 soon to Mustafa Fadhl, and then from Saleh, the US Navy is 13 expected to retaliate. You'd have to be that cartoon 14 character Mr. Magoo -- remember him, big glasses, everything 15 goes on around him, he sees nothing -- even by his own 16 account. But he's a smart man. He's an educated man. He's a 17 thinking man. He knew what was going on. He didn't have to 18 figure it out. 19 In 1998, what's going on with Kherchtou? In 1998 20 Kherchtou is in Nairobi, no longer an Al Qaeda member. Harun 21 won't see him and he's checking into a hotel under his real 22 name. Odeh sees Harun, fake name, getting out of town before 23 the bomb hits. 24 Let's speak briefly about Odeh in Somalia. Just one 25 comment. Recognize in his own statement what Odeh said, 5956 1 focusing on who they are fighting against, not who they are 2 fighting with. He said, reading from page 7 of Government's 3 Exhibit 6 -- and if I forget to say this, one thing on which I 4 will wholeheartedly agree with Mr. Ricco and Mr. Wilford, read 5 Government's Exhibit 6 from beginning to end. I submit to you 6 it backs up what the government says many, many different 7 ways. It says here, it was, however, unacceptable for US 8 armed troops to be in Somalia. Bin Laden and Al Qaeda 9 considered this colonization. Odeh was asked if Bin Laden 10 would have attacked civilian workers like he attacked 11 soldiers. Odeh said no, but Bin Laden supported the attacks 12 in Mogadishu. Whatever is going on in Somalia, he understands 13 that Al Qaeda is against America. 14 He saw, by the way, he saw, Odeh admits, Saleh, Abu 15 Mohamed el Masry, this fellow, in Somalia on his way up to 16 Mogadishu. He saw Abdel Rahman, the bomb maker, in Somalia on 17 his way up to Mogadishu. 18 Let's talk about the fool. I submit to you Odeh is 19 playing a fool. Can you believe this? A sworn member of Al 20 Qaeda. Where do we get that he is a fool or that people in Al 21 Qaeda think he's a fool? The thread, the half thread that 22 comes from is the fact that Wadih El Hage in Texas, on August 23 20, 1998, smirks. He smirks when he gives an answer to Agent 24 Miranda, which is, he's a fool, caught with a Yemeni passport 25 he didn't look like. Does that mean the whole organization 5957 1 always thought he was a fool? Where does that come from? 2 Where is there any suggestion that Odeh wasn't a full-fledged 3 member of Al Qaeda, that he was going around saying I'm 4 against this, I'm going to do something to stop this, and that 5 these people thought he was a fool? 6 The fool and other theories are wishful thinking. We 7 all have a part of us inside that wishes Odeh wasn't part of 8 this. We all wish no one was part of this. We all wish it 9 never happened. But it was, and it did. Where is the fool? 10 Does the fool make any sense? Does it make any sense that 11 they would take the fool and say OK, here's the fool, let's 12 lure him to Nairobi, let's bring him to the hotel where the 13 people in charge of the bombing are hanging out. Let's keep 14 him around. Let's make sure he sees Abdel Rahman, the bomb 15 maker, let's make sure he sees Saleh, the mastermind. Let's 16 make here he sees Harun. Let's not just send him out of town. 17 Let's bring him and have him stay and wait until August 6 and 18 get on the plane with all the other people who are bombers. 19 Not only that, when we fool him, he won't be fooled enough 20 that he won't use a fake number name in the hotel, and we will 21 tell him things anyway. We will tell him an operation is 22 coming. We will tell him it's urgent. We will tell him it's 23 an emergency condition. We will tell him that the people in 24 Kandihar have relocated and that US planes are coming to 25 retaliate. 5958 1 No, he's no fool. Wadih El Hage's smirk in Texas 2 didn't leave him there so that they could trick him to go back 3 to Afghanistan. 4 Let's talk about more wishful thinking. The 5 conscientious objector. Why was he thought to be a fool? We 6 have heard about a lot of people who have nothing to do with 7 Al Qaeda: Siraj Wahhaj, Martin Luther King, Gandhi. Wow. 8 Where did that come from? When he said what the bayat was, 9 that was his state of mind. When al-Fadl explained what he 10 thought was Islamically correct, what bayat was, that's his 11 state of mind. Then we get Siraj Wahhaj, someone who has 12 nothing to do with Al Qaeda. Comes in from Bedford 13 Stuyvesant, where his jihad is a real struggle to do good. He 14 lectures all over the world. He goes to Harvard, he goes all 15 over. He doesn't lecture in Al Qaeda. He goes to Congress to 16 give an opening prayer. Al Qaeda wants to blow up Congress, 17 not address it. What does Siraj Wahhaj have to do with anyone 18 in Al Qaeda? They don't listen to Siraj Wahhaj. They are 19 still following Ibn al Tamiyeh. You can blow up a building. 20 Those who deserve to die, they die. Those that are innocent, 21 God will take care of them. 22 Odeh in his statement talks about how the bombing was 23 a mistake, it was a blunder. Khobar, the bombing in Khobar 24 was a hundred times better. Do you think Gandhi, Nelson 25 Mandela or Martin Luther King talk about which bombing is 5959 1 better? No, because Wahhaj says no bombing. 2 Statement. Let's talk about the statement, and I do 3 urge you to take a look at it. But I think in looking at the 4 statement, let's place everything as much as we can in 5 context. The question was raised why did Odeh talk. I submit 6 to you, paint the picture. OK. It's Nairobi. It's August 7 15, 1998. The bombing was a little more than a week before. 8 What position is Odeh in? What do you know from the evidence 9 alone is in his mind? In 1997, Al Qaeda thought that the guy 10 with the leg missing, Madani al Tayyib, Abu Fadhl al Makkee, a 11 Bin Laden confidante, was talking. He believed he was talking 12 to America. You know that Odeh knows about that because he 13 says he thinks he took all Bin Laden's money, and he says Al 14 Qaeda, we want to kill him. He's an informant. In his mind, 15 true or not, al Tayyib, an important member of the network, 16 has talked. 17 What do you know besides that? We will come back to 18 the documents later that show Wadih El Hage's house was 19 searched. Word got out through Al Qaeda. So he's thinking 20 OK, we know that much. He is caught in Pakistan redhanded. 21 He shows up just before the bombing happens, traveling under a 22 fake name, this close to making it through. Remember, his 23 passport worked at the Kenyan airport. His passport worked at 24 the first checker. It was the second checker that caught him. 25 He was this close to getting through. Now he's thinking OK, 5960 1 I'm on a plane back to Kenya. I left Kenya the night before 2 the bombing. I'm Al Qaeda, people in Al Qaeda, a person named 3 Madani al Tayyib has talked, I'm back here and I'm looking at 4 the FBI. What do they know? 5 I submit to you one thing he didn't have the benefit 6 of when he landed in Nairobi was the benefit of the judge's 7 charge tomorrow. He didn't have an explanation of the 8 conspiracy law, so he didn't know if what he said when he 9 tried to dance with the truth about the bombing would make him 10 guilty of conspiracy or not. I submit, what he is going to 11 do, he is going to say what do I have to do to explain? I 12 have to explain why I left, why I left in a different name. I 13 have to explain the Hilltop Hotel. He can talk. He can talk 14 about most of the people who are now in Afghanistan. They got 15 through. Operation is over, save myself. 16 You also know from his own statement that back in 17 Afghanistan people were trained in counterinterrogations. You 18 know he spoke English. You were shown a letter the other day 19 in handwriting that he wrote in English. His English is 20 coherent. When you read Government's Exhibit 6, small 21 detail -- that's the statement. Odeh talks about how he had 22 piles. That was an expression in quotes, in English. 23 Hemorrhoids. You are pretty comfortable with the English 24 language if you can pick that word out. That's a foreign 25 language, and you can pick that word out. 5961 1 Let's talk about in communicado, meaning being cut 2 off from the world. During the trial when they wanted it to 3 look that Odeh was cut off, Mr. Ricco asked Agent Anticev, 4 wasn't Mr. Odeh held in communicado? Well, I guess so, I 5 didn't see him with friends, no. But you know in the Kenyan 6 jail at least one person for a time had a magazine, 7 Al-'Owhali. But you know what, when Government's Exhibit 6 8 gets up there with Odeh explaining what the mistake in the 9 bomb is, understand you have to explain that somehow 10 information came in from the outside to explain those 11 statements. But let's be fair. You can assume that he wasn't 12 vacuum sealed from August 7 to when the interview happens. He 13 is dealing with Pakistani officials, in their custody. He is 14 dealing with Kenyan officials, in their custody. He is with 15 the FBI. Could someone have said do you know how many were 16 killed? Could one have shown him a headline? You know that 17 Agent Anticev wanted to show him the pictures of the people 18 who were killed. He said he refused to see them. Could he 19 have said look, there were over 200 people, mostly Kenyans, 20 killed? Sure. The relevance isn't just that he knew that a 21 bunch of people were killed and that they were Kenyans, it was 22 his response. 23 Let me show you what I mean. Two very important 24 points. The first has to do with what he figured out. When 25 we go to the sketch later, you remember, with what Ken Karas 5962 1 called a blast cone -- and there is no expert testimony, but 2 whatever you want to call it, it's a blast. You read here it 3 says Odeh further stated that the position of the pickup was a 4 mistake and the back of the truck where the explosives were 5 held should be facing the embassy. Odeh stated that if the 6 cab of the pickup was between the explosives and the embassy, 7 at least 60 percent of the shock wave would be diverted. Odeh 8 stated that the errant shock wave hit the wrong building. 9 Then it goes on. It says Odeh again stated that the truck had 10 to back up to the embassy in order to prevent the cab from 11 acting as a hindrance to the shock wave, thereby preventing 12 the surrounding building from being pounded. 13 Two important points why. You learned that the 14 physics was wrong, which tells you that that's not the 15 understanding of Don Sachtleben or Dr. Lloyd or any other 16 expert. But that is his understanding of physics whenever he 17 learned what happened, oh my god, the blast wave went in the 18 wrong direction. And lo and behold, in the greatest 19 coincidence in the world, that sketch is sitting in his house 20 when he is saying it. It is the mistaken physics of 21 describing how the blast works that is important, and that is 22 in his mind. 23 The second thing. Going back to Gandhi and Nelson 24 Mandela and Martin Luther King and Siraj Wahhaj who tries to 25 follow them, let me tell you something else. Look at what 5963 1 this says. Odeh stated that the operation conducted against 2 Khobar was a hundred times better than Nairobi. You know, 3 they don't get into comparing which bombing is better. They 4 don't do bombings. What does he say? And this goes to Mr. 5 Ricco's point yesterday about a question I asked of Agent 6 Anticev: Was Mr. Odeh concerned about the Americans being 7 killed? And he criticized the question that was asked where 8 Agent Anticev says well, he specifically didn't say that. And 9 Mr. Karas argued when you put the statement up next to the 10 sketch, you see what happened? But look through the 11 statement, read it first word to last word. Not only is there 12 no expression, no specific expression of remorse for Americans 13 being killed, but there are two giant indications that what he 14 wanted was the Americans killed, not the Kenyans. When he was 15 asked the hypothetical questions -- again, hypothetical is not 16 a 4-letter word. It just means a question, what if. Lots of 17 hypothetical questions were asked by defense counsel of 18 witnesses, including El Hage. Would you do an operation 19 against the United States in Saudi Arabia? Yes, if it were 20 Islamically correct. Not no. Would you do an operation 21 against the United States in Kenya if no Kenyans were killed? 22 The answer no, because I like Kenya and Kenyans. Would you do 23 an operation against the United States in some other country, 24 like Tanzania, if no Kenyans were killed? Yes, if Islamically 25 correct. Killing Kenyans, off the chart in his answers. 5964 1 Americans, Khobar was a hundred times better. He's not 2 against bombings. 3 Look at this. Odeh further stated that the position 4 of the pickup was a mistake and the back of the truck should 5 be facing the embassy. Skipping ahead, Odeh stated that the 6 errant shock wave hit the wrong building. I suggest to you 7 when he says there is a wrong building, there's a right 8 building. The right building is the embassy it should face. 9 The right building is what should have been blown up. The 10 right building is where the Americans are. He made a 11 decision. He made a decision to participate in a bomb plot 12 that was directed against the Americans. 13 They all knew there was a risk to Kenyans and that 14 didn't stop them, and maybe they are upset later that they 15 screwed up and more Kenyans died than should have, but they 16 made that choice and it's too late to go back on it now. But 17 in this case, if you read this statement and you read how he 18 answers the hypotheticals and you read how he answers the 19 question and you read what it says here, it's a screw-up, they 20 hit the wrong building. You figure out what it is that they 21 wanted to hit, the right building where the Americans are. 22 Taping interviews. Why don't I pick this point in 23 time to talk about taping. You have heard about it from a 24 bunch of different counsel. You know what, when Miranda 25 didn't write notes for the first half of the interview, why 5965 1 didn't you take notes. Second half of the interview, you 2 wrote notes, why didn't you tape? Then, if you are going to 3 tape, why not videotape so you can see a smirk. Now, coming 4 ahead to Mr. Cohn, Agent Gaudin, how maybe it is he who told 5 Mr. Mwaka Mula about where he was sitting? So you better 6 videotape not just the person being questioned but you better 7 videotape the person questioning. Are you going to videotape 8 the meals? Should we learn that maybe the Kenyan handmaidens 9 are doing something when the agents aren't around? You better 10 film when he is walking to the bathroom too, because if you 11 do, you will be asked what happened off camera, what happened 12 in the back of the room, who is making a face, who's making a 13 gesture, what happened at night. 14 Another thing. You had to bring all these cameras 15 everywhere you went? How practical is that? They don't tape 16 here in the United States. Whatever you think of the policy, 17 it's not done differently. Down the block when you do an 18 interview, it's not taped. It wasn't like they were treating 19 it differently. 20 Another thing, when you talk to people, don't you 21 want to get information? Don't you think it's a little 22 intimidating to say hey, I would like to know what you know 23 and stick a video camera in your face? You were all 24 voir-dired, questioned as jurors. Do you think you would have 25 felt more comfortable if there was a video running? 5966 1 MR. COHN: Objection. 2 THE COURT: Overruled. 3 MR. FITZGERALD: I also submit to you that there are 4 tapes in this case, and that's where the transition is. There 5 are tapes in this case that Wadih El Hage would prefer were 6 not there and there is a tape in this case that the Odeh team 7 does not want to deal with. They mentioned it once yesterday. 8 That is Government's Exhibit 710-96. Remember, that's the 9 letter to his wife. Let's set the stage about Government's 10 Exhibit 710-96, because that exhibit is very, very important, 11 because it shows you something. Like Somalia, when the people 12 in Al Qaeda knew back in 1993 that Al Qaeda is against 13 America, whoever they are with, 710-96 shows you something 14 about Odeh in 1997, long before he is checking into the 15 Hilltop Hotel as Abu Basit Awad. It's a series of tapes, 16 letters on tape to his wife. You can figure out the date is 17 probably, very clearly the first two weeks in September. I 18 will tell you briefly how. 19 During the letters there is side A of the tape and 20 side B of the tape. At the end of side A, Odeh says it is 21 September 9, 1997. Then you turn over to side B. You may 22 think people can sometimes do side B first instead of side A. 23 That happens. During the letter, letter 3 of which this is an 24 excerpt -- all the letters are in 710-96 -- he writes about 25 how he left home on March 18, 1997, and then he says it's been 5967 1 almost six months. Take six months from March 18 and you are 2 at September 18, 1997. With the thing on the other side 3 saying September 7, you are in September 1997. 4 Mr. Ricco talked about this letter briefly and said 5 it had to do with something happening in Somalia. Let's see 6 how that can't be true. What is going on in September 1997 7 that is going to upset Odeh and the people he knows? Three 8 things are going on. All three involve America. Two involve 9 Kenya as well. None involve Somalia. The three things going 10 on, Madani al Tayyib, Abu Fadhl al Makkee, the guy with part 11 of his leg missing, has defected, they think. He is talking 12 to the British, the Americans, the Saudis, and Harun is having 13 a panic attack. That's America, that's happening somewhere 14 else. You will see in the letter, the reference is something 15 happened in Kenya. 16 If you look at 300A-T, the security report written by 17 Harun, he writes about how five terrorists reported in the 18 paper are arrested in Kenya. They think the Americans are 19 behind it, that America is behind going around grabbing the 20 Mujahideen in Kenya. That report Madani al Tayyib is 21 cooperating, they think, and there are arrests in Kenya that 22 the Americans are behind. 23 The next thing that happens, Wadih El Hage gets 24 stopped at the airport, his house gets searched, and he 25 leaves. You know Harun has a panic because Wadih El Hage 5968 1 tells you Harun was hiding in Kenya. Kherchtou tells you he 2 runs to the Sudan. Didn't come back to Kenya until May of 3 1998. There is that panic. The arrest in coastal Kenya that 4 the Americans are perceived as being behind, and the American 5 search of Wadih El Hage's home. 6 My beloved wife. Something happened which you may 7 have heard of or you are aware of some of its details. 8 September 1997. Some kind of distress crisis has happened to 9 few brothers where you are. She is in Kenya. He is in 10 Somalia. The problem is in Kenya. They had some problems. 11 These problems were expected. They were not farfetched. One 12 expected these problems to happen today before tomorrow and 13 yesterday before today. But we had no idea the nature of 14 these problems and their magnitude. We heard the news about 15 something that had happened which may compel us to stay here 16 in our locations without moving, due to the difficulty of the 17 situation where you are. He is in Somalia, she is in Kenya. 18 And also due to the inability to get to you using the way, or 19 any of the ways that could take me to you. So it has been 20 decided that we have to stay here and not to move. It goes on 21 to say, thank God for your letters that have been reassuring. 22 Harun also said good news about you when he came over. 23 So he is getting messages from Harun in September 24 1997 and what is on Harun's brain? Madani al Tayyib, the 25 arrests in Kenya, Wadih El Hage's search. 5969 1 The letter goes on. Remember, this is the Americans 2 and the Kenyans perceived as working together. Odeh tells you 3 that he has no problem with the Kenyans. He likes Kenyans. 4 It says here, but may God fight against the enemies. They 5 neither sleep nor rest, and they don't let anybody rest. 6 Anyhow, this is the way it should be. If they let us rest we 7 will not let them rest. So they certainly have their time and 8 we have ours. This time may have been theirs, but not all 9 times will be theirs. We will never allow that. And may God, 10 the master of universe to respond twentyfold to one of theirs. 11 Thank God we are still alive and we are still capable of 12 giving and resisting. But of course the matter will require 13 time, preparation and thinking. Again, time, preparation and 14 thinking to respond twentyfold to something that the enemy did 15 in Kenya. Think about that. 16 Which brings me to the sketches. Maybe I will try 17 and do another topic that won't take 10 minutes. Why don't we 18 talk about the TNT and the PETN, because I don't want to get 19 in the middle of the sketch and have to stop. 20 You know, yesterday it was said, why didn't we tell 21 you about the fingerprints on the grinder, the grinder from 22 Tanzania? Why didn't Karas tell you about that? After all, 23 the clothes test positive, TNT and PETN. There is no PETN in 24 Nairobi. Makes sense. It must have come from the Humsafar 25 magazine of Fahad who was down in Nairobi with the fingerprint 5970 1 on the grinder. There are a couple of problems. Number one, 2 you were told about the fingerprint on the grinder. That 3 shows that the PETN on Mohamed Odeh's clothing came from the 4 magazine, the magazine from the grinder from Fahad? No. Why 5 didn't Karas tell you that? Because it makes no sense. First 6 of all, check the record. The grinder did not test positive 7 for PETN. Fact number one. Number two, let's focus on 8 Nairobi. The Nairobi bomb scene, the bomb scene did not test 9 positive for PETN. That's the embassy. But Nairobi did. 43 10 Runda where the bomb was built, that tested positive for PETN. 11 The point was, when we said there was no PETN at the bomb 12 scene, not that there was no PETN, the expert told you, big 13 bombs often don't leave residue. When those agents and 14 investigators were going around the bomb scene bumping into 15 walls, they weren't getting PETN on them. It wasn't there. I 16 submit to you, the PETN was from Runda Estates. PETN was used 17 in Nairobi in making the bomb, and therefore this magazine to 18 the grinder that didn't have PETN doesn't make sense. 19 You know that 43 Runda, the search that didn't 20 contaminate the clothing, the first swab was on the 20th, the 21 full blown search was days later, and already the clothing is 22 in FBI custody, taken over by Whitworth. We will talk about 23 Whitworth briefly. Whitworth, Mr. Wilford toward you, that's 24 the guy that separated out the clothes? He is not a bomb 25 expert. What kind of idiot looks at clothes for stains when 5971 1 you are trying to find one billionth of a billionth of an 2 aspirin. Two things. Whitworth is a bomb expert. He 3 testified at the time he was trained as a bomb expert. They 4 used him to collect evidence because he had bomb expertise. 5 He didn't tell you that he could look and spot PETN and spot 6 it with the naked eye like a ketchup stain. He looked for 7 things that main contain forensic evidence. He saw a magazine 8 with indented writing. You write something in a letter, it's 9 underneath. He is looking at it, he is thinking hey, take a 10 shot. Maybe it's a laundry list, maybe it's unintelligible. 11 Check it. He looked for clothes that were used, clothes that 12 were soiled, figuring if it is a brand new shirt in a Macy's 13 bag, that's not worth checking. So he is looking for a shirt 14 that is soiled. 15 One thing. If you ask for any anything in the jury 16 room, ask for that shell shirt. It is still soiled. It still 17 smells. That is not a brand new shirt, he says, somebody 18 worked in that. Those pants, let's check that out. That 19 sarong or sheet, whatever it is, it looks like something has 20 been happening with it, let's check it out. He didn't come to 21 the stand and say I didn't need to do any more, I looked with 22 my eyeball and checked out PETN. He sent it to the lab. What 23 does the lab get? The lab gets positive hits on those things. 24 He took an educated guess and then it went to the lab. 25 Another thing about that. Remember Dr. Lloyd. He 5972 1 said two things we will address. First, he faults the 2 government for not testing quantity. Remember, Kelly Mount 3 told you you can test quantity but the quantity is a sample. 4 You take a shirt, check this spot because it is microscopic 5 and you get a concentration. Maybe there is a lot here and a 6 little there. You test a sample, it doesn't tell you the 7 quantity on the shirt, it tells you the quantity of the 8 sample. 9 You know what else Dr. Lloyd tell you? Why didn't 10 Kelly Mount check the rest of the clothes in the bag? Then 11 you learn she did. That bag, that famous Nike bag with Odeh's 12 clothing in it, the bag, no, doesn't test positive. The 13 handle? Doesn't test positive. The clothes you heard about 14 that test positive? They do. The other ones don't. It 15 wasn't mass contamination. It wasn't people grabbing the bag 16 and putting PETN on it. The bag is clean. 17 Briefly, the green jacket. Enough of the green 18 jacket. OK, the green jacket got missed. The green jacket 19 tested negative. So wherever the PETN came from, it wasn't 20 jumping off the green jacket. The money? OK. Think for a 21 moment what they asked Agent Doran. Bombs going off in two 22 countries, searches going on all over the place, evidence that 23 is going to be brought back to America. You have heard about 24 lots of searches in Tanzania, lots of searches in Nairobi. 25 You saw the bomb scene. You saw the rubble. Forget about the 5973 1 people. All that evidence, all those people in the fall of 2 1998, Mohamed Odeh is looking for his glasses. Someone calls 3 an agent in New York and says can you find Mohamed Odeh's 4 glasses? Can you get his money? Believe it or not, she's not 5 a computer. She has to look. She writes a note to Nairobi. 6 She doesn't know it's there. When they check for the money, 7 you know what they got? The money in the right amount. 8 I submit to you the clothing is what it is. The 9 clothing is clothing that tests positive for TNT and PETN, and 10 it didn't come from the bomb scene, it didn't come from the 11 search of Runda, it didn't come from Tanzania. It came from 12 exposure by Odeh to someone or some thing contacting, in 13 contact with PETN and TNT long before there was a mad dash for 14 Afghanistan. 15 Your Honor, if we could pick it up tomorrow. 16 THE COURT: Ladies and gentlemen, let me give you as 17 best I can some sense of where we are, and that is, sometime 18 mid-morning tomorrow closing arguments will be completed and I 19 will begin my charge to you, which will take some time. If 20 you could plan maybe to stay a little past 4:30 tomorrow, that 21 might be helpful. 22 Thursday, remember, we start at 1:00. We will sit 23 this Friday. I have the note from the alternate asking a 24 question about alternates, and I will respond to that 25 tomorrow. Have a good evening. We are adjourned until 10:00 5974 1 a.m. tomorrow. 2 (Jury excused) 3 THE COURT: Since so much of a point has been made 4 about the jury reading all of Exhibit 6, I would think Exhibit 5 6 is a good thing to have 12 copies of. 6 With respect to this question of what happens to the 7 alternates, on which I will seek further guidance from 8 counsel, during the break I was looking at the statute, 18 USC 9 3593(b). It says: "The hearings shall be conducted before 10 the jury that determined the defendant's guilt or before a 11 jury impaneled for the purpose of the hearing if the jury that 12 determined the defendant's guilt was discharged for good 13 cause." 14 Then it says: "A jury impaneled pursuant to 15 paragraph 2 shall consist of 12 members unless at any time 16 before the conclusion of the hearing the parties stipulate, 17 with the approval of the court, that it shall consist of a 18 lesser number." 19 I don't think there is a significant likelihood of a 20 stipulation to a lesser number in a death case where the jury 21 has to be unanimous before death will be imposed or not. 22 Heads are being moved in a direction which suggests that that 23 is correct. 24 So, as I read the statute, it is before the jury that 25 determined the defendant's guilt. It has to be 12 people, 5975 1 unless, C, the jury that determined the defendant's guilt was 2 discharged for good cause. Which leads me, again assuming 3 there is no precedent for this, compelling precedent for this, 4 to believe that it makes very good sense to keep the 5 alternates on tap so that if there comes a time when we have 6 the penalty phase and we have lost a juror, we can call upon 7 an alternate and still have a jury of 12, because the 8 alternative to that, I think, is to impanel an entirely new 9 jury, and then -- well, you are shaking your head vigorously 10 yes, Mr. Cohn, but I don't think, if it can be avoided, it's a 11 very attractive prospect to go through the voir dire process, 12 which took us a month, slightly less, and to present to an 13 entirely new jury the background of this case. 14 So that my inclination, as I say, absent some 15 compelling precedent otherwise, would be, after the jury has 16 started, to excuse the alternates, have them on telephone 17 call, with the understanding that if the jury reconvenes they 18 rejoin the jury. And if we then lose a juror, we can still 19 have the jury of 12, which is compelled by the statute. 20 If that isn't the case, then I certainly have to 21 rethink the question of timing, because if we have only 12 22 jurors and with a prospect that if we lose one juror because 23 of health or accident or other reason, we have to start all 24 over again, then you can expect that I will want the penalty 25 phase to begin just as promptly after the jury verdict as 5976 1 possible. There is too much of an investment to run the risk 2 of starting from scratch, which apart from the time and effort 3 on everybody's part is contrary to what I understand the 4 spirit or sense of the statute to be, which is a preference 5 for having the jury which heard the liability phase hearing 6 the penalty phase. Just think of all the arguments which have 7 been made improperly to this jury which are really directed to 8 the death penalty that would be wasted if we had to start with 9 a whole new jury. I am not pointing anyone out, Mr. Baugh. 10 (Laughter) 11 THE COURT: I will await your further views on the 12 matter. I assume you have -- about how much time left? 13 MR. FITZGERALD: Again, from the person who predicted 14 a 9 to 12 month trial, I will be done certainly tomorrow 15 morning and I am hoping to be done around the mid-morning 16 break, but certainly the morning. 17 MR. COHN: Your Honor, the government got four hours. 18 It is supposed to be a brief rebuttal. 19 THE COURT: No, three and a half hours. I gave 20 everyone the amount of time that they requested. 21 MR. COHN: I think the government asked for four 22 hours. 23 THE COURT: And so far they have had two. 24 MR. COHN: They have used two and a quarter -- two -- 25 that means the mid-morning break, not 1:00. My summation was 5977 1 an hour and a quarter, they can't take an hour from my 2 summation. 3 THE COURT: I laid the ground rules down very, very 4 specifically and I laid them down very specifically just to 5 avoid this, that I would give everybody the time that they 6 requested and no more. 7 MR. COHN: That's four hours for the government. 8 That's all I'm saying. That's what they asked for. 9 THE COURT: 2:15 to 4:30 with a midafternoon break is 10 two hours. 11 MR. COHN: And tomorrow to 11:30 is an hour and a 12 half -- 13 THE COURT: We are adjourned until tomorrow at 10 14 a.m. 15 MR. DRATEL: Is it your Honor's intention to charge 16 in one session and complete the charge tomorrow? 17 THE COURT: I don't know. I really don't want to 18 rush it. 19 MR. DRATEL: Do you have an idea how late you will 20 be? 21 THE COURT: No. 22 (Proceedings adjourned until 10:00, Wednesday, May 9, 23 2001) 24 25 5978 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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