27 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 70 of the trial, June 27, 2001.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm


   2   ------------------------------x


   4              v.                           S(7) 98 Cr. 1023

   5   USAMA BIN LADEN, et al.,

   6                  Defendants.

   7   ------------------------------x

                                               New York, N.Y.
   9                                           June 27, 2001
                                               9:00 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge

  15                            APPEARANCES

            United States Attorney for the
  17        Southern District of New York
  18        MICHAEL GARCIA
            Assistant United States Attorneys


  22        Attorneys for defendant Khalfan Khamis Mohamed





   1            (Pages 8255 through 8276 filed under seal)

   2            (In open court)

   3            THE COURT:  Is the video all geared up, ready to

   4   play?

   5            MR. RUHNKE:  I'm told it is, your Honor, yes.

   6            (Jury enters)

   7            THE COURT:  Good morning.

   8            You will recall that when we adjourned yesterday we

   9   were in the midst of watching a documentary.

  10            Whose documentary is that?

  11            MR. RUHNKE:  Your Honor, this is a documentary that

  12   was produced by the BBC for the Discovery Channel in 1995.

  13            THE COURT:  You wish to resume playing it?

  14            MR. RUHNKE:  Yes, your Honor.

  15            THE COURT:  You may do so.

  16            (Videotape resumes)











   1            MR. RUHNKE:  Your Honor, at this point we would

   2   interrupt for some witnesses.  We are not going to play the

   3   second part yet.  Just as a fair warning, in the second part,

   4   there is a scene where it appears someone has shot himself.

   5   It is a newscaster joke.

   6            THE COURT:  You are going to play that now?

   7            MR. RUHNKE:  Not now.

   8            THE COURT:  What is the next order of business?

   9            MR. RUHNKE:  The defense calls Charles Adler, who

  10   should be in the back.

  11            MR. FITZGERALD:  Your Honor, while we are waiting for

  12   Mr. Adler, a housekeeping matter.  I already told Mr. Ruhnke

  13   about it.  Yesterday the government offered and played a

  14   videotape, which we called Government's Exhibit 4314.  That

  15   number was already used, so we are renumbering it 4321 with

  16   the videotape of the two incidents in the Florence

  17   administrative maximum prison.  So the number should be 4321,

  18   not 4314.

  19            (Government Exhibit 4321 received in evidence)

  20            (Continued on next page)








   2        called as a witness by the defense,

   3        having been duly sworn, testified as follows:


   5   BY MR. RUHNKE:

   6   Q.  Mr. Adler, would you tell the jury the nature of your

   7   professional occupation.

   8   A.  I am an attorney, criminal defense attorney.

   9   Q.  Did there come a time that you began representation of

  10   someone known as Mamdouh Mahmud Salim?

  11   A.  That is correct.

  12   Q.  Was that in connection with an indictment charged in

  13   connection with international acts of terrorism in Nairobi and

  14   Dar es Salaam?

  15   A.  Yes.

  16   Q.  Do you know approximately when it was that you began your

  17   representation of Mr. Salim?

  18   A.  Beginning of 2000.

  19   Q.  In the course of representing Mr. Salim, without

  20   disclosing the nature of any conferences that you may have had

  21   with him, did you meet with him on numerous occasions?

  22   A.  Yes, sir.

  23   Q.  Did you meet with him in the Metropolitan Correctional

  24   Center?

  25   A.  I did.


   1   Q.  In what area of the Metropolitan Correctional Center?

   2   A.  The area known as 10 South.

   3   Q.  Was Mr. Salim a person who both publicly and in, for

   4   example, codefendant meetings, considered himself to be

   5   falsely accused?

   6   A.  He did so publicly.

   7   Q.  Was Mr. Salim an individual who complained publicly -- and

   8   I won't talk about private conferences at all -- publicly

   9   about how his legal rights were being violated?

  10   A.  He did.

  11   Q.  Did Mr. Salim, for example, communicate with the judge

  12   overseeing the case about many, many issues communicated in

  13   writing by letters to the judge?

  14   A.  He did.

  15   Q.  Was he very concerned about the conditions of confinement

  16   under which he was being held and was that a frequent subject

  17   of those communications?

  18   A.  Yes.

  19   Q.  Did there come a time in the course of your representation

  20   of Mr. Salim that he expressed unhappiness -- and I don't mean

  21   to you, I mean outside the attorney-client context -- about

  22   the quality of the defense that he was receiving?

  23   A.  Yes.

  24   Q.  Did there come a time when Mr. Salim asked the judge if he

  25   would be permitted to replace the attorneys who were


   1   representing him?

   2   A.  Yes.

   3   Q.  At or about that time, were motions made on Mr. Salim's

   4   behalf for severance from codefendants?

   5   A.  Yes.

   6   Q.  Would you please explain to the jury what a motion for

   7   severance from codefendants means.

   8   A.  A request to the presiding judge that that particular

   9   defendant be separated from the codefendant so that his trial

  10   would proceed separately.

  11   Q.  Was such a motion heard and decided by the court?

  12   A.  It was.

  13   Q.  What did the court decide?

  14   A.  It denied the request.

  15   Q.  Do you know approximately when that denial occurred?

  16   A.  In the fall of 2000.

  17   Q.  Did there come a time when a conference was convened, or a

  18   court conference with a magistrate judge to discuss the issue

  19   of Mr. Salim's being able to replace counsel or not replace

  20   counsel?

  21   A.  Yes.

  22   Q.  Do you recall as you are sitting here today the date of

  23   that conference?

  24   A.  October of 2000.  I don't recall the exact date.  It may

  25   have been the 18th --


   1   Q.  Showing you a document, Mr. Adler, previously marked for

   2   identification as KKM2, looking at that document, first, does

   3   it appear to be a transcript of the conference we are

   4   discussing?

   5   A.  It does.

   6   Q.  Does looking at that document help you remember when that

   7   conference actually took place?

   8   A.  October 26, 2000.

   9   Q.  Was the purpose of that conference for the magistrate

  10   judge to make a recommendation to the trial judge as to

  11   whether counsel should be replaced?

  12   A.  Generally, yes.

  13   Q.  At the conclusion of that conference, did the magistrate

  14   judge reveal his preliminary findings that he did not think

  15   there was any justification for replacing counsel?

  16   A.  Generally, yes.

  17   Q.  During that conference did Mr. Salim complain about the

  18   quality of his representation?

  19   A.  He was given the opportunity to.

  20   Q.  Do you recall him making reference to the defense going

  21   from failure to failure?

  22   A.  I don't recall that specifically, but if it's in the

  23   transcript I would accept that.

  24   Q.  Referring to page 29 of the transcript, did Mr. Salim make

  25   such a comment during the conference on October 26, 2000?  I


   1   direct your attention to the top of the page.

   2   A.  What was your question again?

   3   Q.  Did he make a comment regarding the defense moving from

   4   failure to failure?

   5            THE COURT:  Failure to what?

   6            MR. RUHNKE:  Failure to failure.

   7   A.  That was certainly the import of what he was saying.  I

   8   don't see those particular words.

   9   Q.  I am directing your attention particularly to lines 4

  10   through 8.

  11   A.  Yes, you are correct.

  12   Q.  During that conference on October 26, 2000, did Mr. Salim

  13   express the thought that given the representation he has he

  14   may as well plead guilty?

  15   A.  Yes.

  16   Q.  Thereafter -- I am sorry, I will back up a bit.

  17            A few days prior to this, was there a hearing before

  18   the trial judge on the issue of whether or not certain

  19   evidence would be allowed to go before a jury if Mr. Salim

  20   stood trial?

  21   A.  Yes.

  22   Q.  During the course of those proceedings did Mr. Salim

  23   interrupt the proceedings and seek to address the judge

  24   directly, have certain issues he wanted to address on his own?

  25   A.  Yes.


   1   Q.  Did the judge allow Mr. Salim to address the court?

   2   A.  At one point Mr. Salim testified and at another point he

   3   was directed to take those up with the magistrate, and that

   4   was the occasion for the referral to the magistrate.

   5   Q.  During the course of that hearing, did Mr. Salim, in a

   6   nonverbal way, express his disapproval of certain testimony or

   7   certain things that were going on during the hearing?

   8   A.  He did certain things.  I don't know that I would

   9   characterize it as expressing disapproval.  I don't know that

  10   that's my place.  He did at one point put, tear some paper,

  11   roll it up into small balls and place that in his ears.

  12   Q.  As if he didn't want to hear what was going on?  Fair

  13   inference?

  14   A.  I wouldn't argue with that.

  15   Q.  I direct your attention now to November 1 of 2000.  Did

  16   you have occasion to see Mr. Salim on November 1, 2000?

  17   A.  Yes.

  18   Q.  Where did you see him on that date?

  19   A.  10 South of the Metropolitan Correctional Center.

  20   Q.  When you arrived on 10 South, do you recall approximately

  21   what time of day it was, morning, afternoon?

  22   A.  Morning, reasonably early.

  23   Q.  When you arrived on 10 South, and I won't take you through

  24   the security procedures, but when you arrived on 10 South did

  25   you sign in a book?


   1   A.  On 10 South?

   2   Q.  Yes.

   3   A.  Yes.

   4   Q.  Who met you at the door, if you can recall?

   5   A.  Officer Pepe.

   6   Q.  So far as you were able to tell, was Officer Pepe the only

   7   officer that you saw on 10 South that morning prior to a

   8   startling event?

   9   A.  He was the only officer that I remember seeing, yes.

  10   Q.  Had you been on 10 South on numerous other occasions?

  11   A.  Many times.

  12   Q.  Were there numerous other occasions or not that Officer

  13   Pepe appeared to be the only officer on 10 South?

  14   A.  My recollection is that there were such occasions but they

  15   were not typical.

  16   Q.  When you were let into the 10 South unit, what occurred

  17   next?

  18   A.  I saw my cocounsel, Paul McAllister.

  19   Q.  Where do you see Mr. McAllister?

  20   A.  As you enter 10 South through a set of double doors,

  21   having entered through the second of the two doors, a few

  22   steps forward brings you to what I would call an officer's

  23   desk, and Mr. McAllister was standing by that desk.

  24            MR. RUHNKE:  Your Honor, could we have displayed

  25   Government's Exhibit 4000 for Mr. Adler and for the jury.


   1            THE COURT:  Yes.

   2   A.  Yes.

   3   Q.  Mr. Adler, just to orient you a bit, on the left-hand side

   4   of the diagram that you are looking at, that is the sally port

   5   or entranceway onto 10 South.  Do you see those double doors

   6   you were just describing?

   7   A.  Yes.

   8   Q.  And the geometric object to the left, is that the

   9   officer's station that you were describing?

  10   A.  Yes.

  11   Q.  Directly in front of that there would be two rooms

  12   denominated attorney visit, inmate visit.  Starting from the

  13   top of the diagram, which room were you in?  Or which room did

  14   you see Mr. McAllister?

  15   A.  Can we correct this for witness age?  I will have to look

  16   a little more closely.

  17            I am sorry.  What is the question?

  18   Q.  Do you see four rooms from top to bottom, attorney visit,

  19   inmate visit?

  20   A.  Yes.

  21   Q.  You said you saw Mr. McAllister in one of those rooms.

  22   Which room was he in?

  23   A.  No.  Actually I saw him in the area in front of all those

  24   rooms first, standing by the officers' station.

  25   Q.  Why don't you tell us what happened -- we will leave this


   1   diagram up here.  What happened after you saw Mr. McAllister?

   2   Was there a conversation between you two?

   3   A.  Yes.

   4   Q.  Had you seen Mr. Salim at that point?

   5   A.  No.

   6   Q.  Was there any conversation with Officer Pepe at that

   7   point?

   8   A.  Yes.

   9   Q.  What was that conversation?

  10   A.  Officer Pepe said to both Mr. McAllister and me -- I think

  11   there had been previous conversation between Officer Pepe and

  12   Mr. McAllister -- that Mr. Salim is in prayer and he wanted,

  13   he, Mr. Pepe, Officer Pepe, wanted to allow Mr. Salim to

  14   finish his prayer before asking him again, which is why I

  15   thought there was previous conversation, whether he wanted to

  16   have an attorney visit that morning.

  17   Q.  Had there been times when you had gone to see Mr. Salim

  18   when he had refused to see you?

  19   A.  There had been some times, yes.

  20   Q.  What happened next?  Did Mr. Salim eventually come out

  21   into this area on 10 South?

  22   A.  He did, but there was further conversation before that

  23   happened.  Do you want to hear that?

  24   Q.  Yes.  What was that conversation?

  25   A.  Officer Pepe then went back apparently to speak to


   1   Mr. Salim, returned, and said yes, he does want to see you,

   2   but he asks you to wait.  So we did.  Then a short time later,

   3   matter of minutes, three or four, Officer Pepe again returned

   4   from the direction of Mr. Salim's cell, and said he wants to

   5   use the computer.

   6   Q.  Stop there for a moment.

   7   A.  Yes.

   8   Q.  Looking at the diagram on Government's Exhibit 4000, at

   9   that time, on November 1, 2000, was one of these rooms set up

  10   so that a PC or computer could be utilized?

  11   A.  Yes.

  12   Q.  Do you recall anything about the computer setup?  For

  13   example, did it have a keyboard, did it have a mouse, did it

  14   have Internet access?

  15   A.  No, it had none of those things.  It was a monitor and a

  16   CD drive and a disk drive.

  17   Q.  Did Mr. Salim get taken into that computer room?  Is that

  18   what happened next?

  19   A.  There was some additional conversation with Officer Pepe.

  20   Q.  Tell us what that conversation was.

  21   A.  Officer Pepe said that he suggested to Mr. Salim, since he

  22   wanted to use the computer, that he would put him directly in

  23   the computer room, and I think he asked Mr. McAllister and me

  24   would we like to go into the room adjacent to it.  That is,

  25   the computer room is the uppermost room labeled attorney


   1   visit, and there is a screen between that and the adjacent

   2   room which says INM, inmate visit, I guess.  Officer Pepe

   3   asked if we would like to go into that room -- it's a rather

   4   small room -- so that we could talk to Mr. Salim while he was

   5   using the computer, and we said yes.

   6   Q.  Did you see Mr. Salim brought out subsequent to that

   7   conversation, in the sense of being brought into the area?

   8   A.  Yes, but first Officer Pepe placed Mr. McAllister into the

   9   inmate, I will call it inmate visit room, and locked the door.

  10   Q.  Is that normal procedure?

  11   A.  It's the first time, actually, that I had been in that

  12   room.

  13   Q.  Prior to that day, where had you conducted interviews with

  14   Mr. Salim, again looking at the diagram?

  15   A.  Typically in the room called recreation, the one on the

  16   lower right, the most northerly part of the diagram.  I see

  17   two recreation rooms.  It's the northernmost one.

  18   Q.  Was that set up with a folding table and some chairs so

  19   that you could have conversation, attorney-client visits?

  20   A.  Yes.

  21   Q.  If you recall the visits there, during those

  22   attorney-client visits, would the inmate -- not the inmate,

  23   but would Mr. Salim be shackled or handcuffed in any way while

  24   these visits were going on in the recreation room?

  25   A.  Once in the room, typically not.


   1   Q.  Returning now to November 1, you and Mr. McAllister were

   2   locked into the small inmate visit room.  At some point did

   3   you then see Mr. Salim being brought to the area?

   4   A.  Yes, shortly after.

   5   Q.  Was he cuffed?

   6   A.  He was.

   7   Q.  Front or back?

   8   A.  Back.

   9   Q.  Who was escorting him?

  10   A.  Officer Pepe.

  11   Q.  What occurred next?  What did you see Officer Pepe do with

  12   Mr. Salim next?

  13   A.  He opened the door to the attorney visiting room, that is,

  14   the room denominated here the attorney visiting room, the

  15   computer room.  Mr. Salim went into the room.  Officer Pepe

  16   locked the door behind him.  There is a slot in the middle of

  17   that door which Officer Pepe opened.  Mr. Salim, without being

  18   instructed, turned with his back towards the door, he being on

  19   the inside, put his wrists through that slot.  Officer Pepe

  20   removed the handcuffs and then slid through the door a file

  21   that apparently he had carried for Mr. Salim when he brought

  22   him to the room.

  23   Q.  Do you remember how Mr. Salim was dressed, what he was

  24   wearing at that point?

  25   A.  Yes.


   1   Q.  What was he wearing?

   2   A.  He was wearing an orange jump suit.

   3   Q.  What occurred once Mr. Salim was in the computer room,

   4   attorney visit room, and things began to happen?  What

   5   happened next?  What did he do?  What do you?

   6   A.  There came a point that he called for Mr. Pepe, Officer

   7   Pepe, who arrived.

   8   Q.  Did you see Mr. Salim attempting to run software or CDs or

   9   use the computer to bring up some kind of data?

  10   A.  I think, I think the answer to that question might intrude

  11   on issues of privilege and confidentiality which I should not

  12   respond to.

  13   Q.  Were there communications presented to the MCC in the

  14   past, Metropolitan Correctional Center in the past on

  15   Mr. Salim's behalf, complaining about the computer setup?

  16   A.  Yes.

  17   Q.  After Mr. Salim called for Officer Pepe, what occurred

  18   next?

  19   A.  Officer Pepe asked him if he was done, and he indicated he

  20   wasn't but that he wanted some additional material from the

  21   cell.

  22   Q.  What happened after that?

  23   A.  Officer Pepe opened the door --

  24   Q.  Did you see Officer Pepe cuff Mr. Salim before he opened

  25   the door?


   1   A.  I don't believe so.

   2   Q.  Did you see him cuff him after he opened the door?

   3   A.  I don't believe so.

   4   Q.  Did you see Mr. Salim do anything with the jump suit that

   5   he was wearing?

   6   A.  He took it off, yes, took it off.

   7   Q.  What was he wearing underneath it?

   8   A.  He was wearing, my best recollection is what appeared to

   9   be a light material khaki shirt -- no, khaki shorts, and a

  10   white T-shirt, or an off-white T-shirt.

  11   Q.  After Mr. Salim was let out of the cell, did you see him

  12   walk alongside Officer Pepe, basically uncuffed?

  13   A.  I recall him picking up the file.

  14            THE COURT:  Salim picking up --

  15   A.  -- Salim picking up his file and rolling up the jump suit,

  16   placing it on top of the file, and then carrying it in that

  17   way, with his hands underneath the file, across from one hand

  18   to the other, and the jump suit laying on top of it.

  19   Q.  Did Mr. Salim then leave your sight with Officer Pepe or

  20   did something else happen before he actually disappeared from

  21   your sight?

  22   A.  I was able to see through a windows in the inmate visiting

  23   room, the room that Mr. McAllister and I were in, across to

  24   the other recreation area, the southernmost one, the one that

  25   is adjacent to the entryway to 10 South.


   1   Q.  Lower left of this diagram?

   2   A.  The lower left of this diagram.  And I saw in that room

   3   another defendant and two lawyers, and Mr. Salim stopped at

   4   that cell and engaged in what appeared to be a short

   5   conversation.

   6   Q.  Do you remember who the other inmate was in the other

   7   cell?

   8   A.  Wadih El Hage.

   9   Q.  And the attorneys were?

  10   A.  Sam Schmidt and Josh Dratel.

  11   Q.  Did Officer Pepe and Mr. Salim then basically walk out of

  12   your sight?

  13   A.  Yes.

  14   Q.  What happened next?

  15   A.  The next thing I recall is a sense that a lot of time was

  16   passing.

  17   Q.  As you had this sense, from where you were sitting in that

  18   attorney room, or standing, were you able to see certain video

  19   monitors?

  20   A.  Yes.

  21   Q.  Where were those video monitors located?

  22   A.  They were behind, from my perspective, on the other side

  23   of the officer's desk, or officer's station.  There were a

  24   number of monitors sort of on top of and next to each other.

  25   I could see some of them and not others.


   1   Q.  Did you begin to notice anything unusual on the monitors?

   2   A.  Yes.

   3   Q.  What did you notice?

   4   A.  Well, I should say I was specifically looking at the

   5   monitors at that point because I was trying to see if

   6   Mr. Salim would be visible and if it looked like he was

   7   returning, and in doing so I noticed an increase of activity

   8   by the personnel, the guards on 9 South.

   9   Q.  In order to get to 10 South, is it necessary to walk

  10   across the unit known as 9 South?

  11   A.  Yes.

  12   Q.  Did the monitor show the activity in the unit on 9 South?

  13   A.  The monitor continually changed from station to station,

  14   but one of those stations showed 9 South.

  15   Q.  And when you were seeing the activity on 9 South, what

  16   kind of activity were you seeing?

  17   A.  What was unusual was that it was activity.

  18   Q.  It's usually pretty quiet?

  19   A.  Yes, exactly.

  20   Q.  Did you see officers gathering, conferring, that sort of

  21   thing?

  22   A.  Eventually.  At first just kind of moving more quickly.

  23   Q.  Did you eventually see officers in the sally port area on

  24   10 South?

  25   A.  Eventually I did, yes.


   1   Q.  Looking at the diagram again, right in the middle,

   2   left-hand side, which is the entranceway, does that second

   3   door have a window in it, the inner door?

   4   A.  It does.

   5   Q.  At some point did you notice officers outside the unit?

   6   A.  It came in two stages.  The first stage was, I saw a

   7   gathering of officers outside the outer door, and that I saw

   8   on the monitor.  The second stage, and it was a bit later,

   9   probably, I don't know, but some number of minutes, I saw

  10   officers in the vestibule between the inner and outer door,

  11   and at that time I saw them not through the monitor, or not on

  12   the monitor, but through the window on the inner door.

  13   Q.  Eventually did the officers gain access to 10 South?

  14   A.  Yes.

  15   Q.  Up to that moment, had you seen Mr. Salim again or had you

  16   seen Officer Pepe again?

  17   A.  No.

  18   Q.  When was the next time that you saw Mr. Salim?

  19   A.  After the officers entered the unit -- the inner door was

  20   open -- there came a point sometime later that I saw a number

  21   of officers dragging an inert body which I believed to be

  22   Mr. Salim around the corner, shall I say.  That is, if you

  23   look at the space between the computer room and the room I was

  24   in, the inmate visitors' room, going top to bottom, passing

  25   the officer's desk and you see that as a corridor, there is a


   1   square that is a post, a square post, and then walking towards

   2   that post, if you make a left and see the pathway going down

   3   towards the northern recreation room, which is where we had

   4   counsel meetings, as another corridor, it is that corridor.

   5   They apparently dragged Mr. Salim down that corridor.  I

   6   didn't see him until they turned the corner of the lower --

   7   between that post that I described and the lower inmate

   8   visitors' room.

   9   Q.  Towards the officer's station?

  10   A.  Towards the officer's station, yes, and they dragged his

  11   body and dropped it.  They were pulling by the arms, and it

  12   sort of dropped with its head about abeam the lower attorney

  13   visiting room, that is, the room on the other side of me from

  14   the computer room.

  15            I hope that makes sense.

  16   Q.  I'm not a sailor but apparently you are.  Would you

  17   explain what you mean by abeam.

  18   A.  Across from the pilot actually, but it is the same

  19   terminology.

  20   Q.  Did you see the inmate that you believed to be Mr. Salim

  21   moving, resisting, talking, doing anything?

  22   A.  My thought at the time was that he was dead.

  23   Q.  Did you see an officer do anything?

  24   A.  Yes.

  25   Q.  What did you see?


   1   A.  I saw there were a number of officers around him at the

   2   time, and some were standing, most were bending.  One in

   3   particular who was facing away from me towards, I suppose, the

   4   officer station, was down on one knee, and he reached onto his

   5   utility belt and removed what I thought was a key, and held it

   6   up, and there was a moment he appeared to me to be essentially

   7   aiming and then struck a very decisive blow with that object,

   8   which I think was a key, to what appeared to be the area of

   9   Mr. Salim's eye.

  10   Q.  What did you see happened after that blow was struck?

  11   A.  There was a fountain of blood that began to spurt.

  12   Q.  At that point, to your knowledge, had the officers made

  13   any indication that they knew that you were there and

  14   watching?

  15   A.  No.

  16   Q.  Did there come a time when the officers who had custody of

  17   Mr. Salim became aware of the fact that you were there and

  18   watching?

  19   A.  Yes.

  20   Q.  Do you recall what was said to you by one or more of the

  21   officers?

  22   A.  Variants of don't look, turn around, sit down, face the

  23   wall.

  24   Q.  Did you stop looking?

  25   A.  No.


   1   Q.  Why not?

   2   A.  I believed that was my client and it just didn't occur to

   3   me to stop looking.

   4   Q.  I am going to ask that this exhibit be taken down and

   5   Government's Exhibit 4004 be displayed for the jury, in

   6   evidence.

   7            Looking at this picture, Mr. Adler, to orient us, is

   8   that the officer station on the left, appear to be the officer

   9   station on your left?

  10   A.  Yes.

  11   Q.  Do you see a trail of blood leading to the rear of that

  12   unit?

  13   A.  I do.

  14   Q.  Can we see on this -- the door at the top, would that be

  15   where the computer was?

  16   A.  I would say yes.

  17   Q.  And then could we see Government's Exhibit 4003.

  18   Government's Exhibit 4003, first of all, this item here, is

  19   that the column you described?

  20   A.  Yes.

  21   Q.  And the two doors that appear to be attorney-inmate doors,

  22   are they the lower two doors, the lower attorney and inmate

  23   interview room?

  24   A.  They appear to be, yes.

  25   Q.  And the door that is apparently open in the photograph, is


   1   that the room where you and Mr. McAllister were?

   2   A.  I would say so.

   3   Q.  Did I just hear you say that you believed Mr. Salim was

   4   struck with a key at about the area between the two doors that

   5   are closed in the first interview room, the first set of

   6   interview rooms?

   7   A.  Yes.  The second room actually.

   8   Q.  Do you notice that the trail of blood seems to begin at

   9   the point you describe?

  10   A.  I do notice that -- although I might say, I didn't mention

  11   before -- that when I first saw the body of the person I

  12   thought to be Mr. Salim being pulled around the corner, there

  13   was a trail of blood which appeared to be a smear, and it was

  14   being left on the floor, and this was before the blow I

  15   described was struck.  And then after that blow was struck

  16   Mr. Salim was again moved and pulled further along past the

  17   area that was shown in the picture just before this one.

  18   Q.  Then can we display again Government's Exhibit 4004.

  19            Is that the path you just described to the jury?

  20   A.  Yes, and, as I say, that's the second dragging that I saw.

  21   Q.  Do you see what appears to be a large pool of blood at the

  22   end of that trail of blood?

  23   A.  Yes.

  24   Q.  Are you able to give us a physical description of the

  25   officer who struck your former client Mr. Salim?


   1   A.  Somewhat.

   2   Q.  Do the best you can.

   3   A.  He was wearing, first of all, dark, very dark navy blue, a

   4   uniform, the kind, the more military style uniform that is

   5   sometimes worn by some of the guards.  I would say he was

   6   relatively short, 5,7, 5,6, 5,8, somewhere in there.

   7   Q.  Race?

   8   A.  I think I would probably have to guess Hispanic or white.

   9   Q.  Did you notice how his hair was cut?

  10   A.  His hair was dark and cropped closely, short hair.

  11   Q.  Did you have a view of the back of his head and notice

  12   anything distinguishing about the back of his head?

  13   A.  He had what appeared to be -- if it was on the scalp

  14   itself it would be a scar, but he had hair, so it was sort of

  15   a design, as it were, in the hair, where hair didn't grow.  It

  16   looked like it was a scar underneath it, which I suppose

  17   looked most like a check mark, probably about a half inch on

  18   one side, a little shorter than the other, about a half inch

  19   and three quarters of an inch, the two sides of the check

  20   mark.

  21   Q.  Eventually on November 1, were you let out of the unit on

  22   10 South?

  23   A.  Yes.

  24   Q.  Shortly thereafter, primarily if not exclusively because

  25   you were a potential witness to these proceedings, were you


   1   relieved as counsel in the case?

   2   A.  Yes.

   3   Q.  As were your cocounsel?

   4   A.  Yes.

   5            MR. RUHNKE:  Your Honor, I am going to show the

   6   witness a document that is marked KKM8B right now.  The

   7   government has agreed that we can offer this into evidence at

   8   this point.  I so offer KKM8B.

   9            MR. GARCIA:  No objection.

  10            THE COURT:  Received.

  11            (Defense Exhibit KKM8B received in evidence)

  12            MR. RUHNKE:  There is one caveat about this document.

  13   The government and defense are in agreement that this is the

  14   injury report relating to Mr. Salim's injuries on November 1,

  15   2000, despite the fact that the injury report bears a date of

  16   11/11/2000.

  17            THE COURT:  That is an error.

  18            MR. RUHNKE:  Yes.

  19            THE COURT:  The corrects date is 11/1.

  20            MR. RUHNKE:  11/1/2000.  I am going to ask that this

  21   be displayed on the Elmo.

  22   Q.  Do you see that, Mr. Adler?

  23   A.  Yes.

  24   Q.  If we could focus in on the diagram of the head area that

  25   is at the lower end of the document.


   1   A.  Yes.

   2   Q.  Thank you.  Do you see on the diagram there is something

   3   on the upper left forehead designated on the report as a

   4   laceration?

   5   A.  Yes.

   6   Q.  Is the location of that laceration consistent or

   7   inconsistent with the injury you saw your client receive at

   8   the hands of a correction officer on November 1, 2000?

   9   A.  Consistent.

  10            MR. RUHNKE:  Nothing further, your Honor.

  11            THE COURT:  Mr. Garcia.

  12            MR. GARCIA:  Thank you, your Honor.


  14   BY MR. GARCIA:

  15   Q.  Good morning, Mr. Adler.

  16   A.  Good morning, Mr. Garcia.

  17   Q.  Mr. Adler, Mr. Ruhnke asked you some questions about a

  18   severance motion that was made on behalf of your former client

  19   Mr. Salim.  Do you recall that?

  20   A.  Yes.

  21   Q.  The severance motion that you filed in this case, was that

  22   based in part on the fact that your client was not charged in

  23   the actual bombings and did not want to be tried with

  24   defendants who were?

  25   A.  Yes.


   1   Q.  Mr. Ruhnke also asked you about being relieved as counsel

   2   for Mr. Salim.

   3   A.  Yes.

   4   Q.  Is it your understanding that you were relieved as counsel

   5   based upon your potential to be a witness in proceedings such

   6   as these?

   7   A.  Based upon the government's request that I be relieved,

   8   presumably for that reason.

   9   Q.  I am sorry, I didn't mean to interrupt you.

  10   A.  Presumably for that reason.

  11   Q.  But not based in any way on your representation of

  12   Mr. Salim or his complaints about that representation.

  13   A.  Correct.

  14   Q.  Mr. Ruhnke asked you some questions about things that

  15   Mr. Salim seemed to have problems with in your representation;

  16   is that true?

  17   A.  It is true that he asked those questions.

  18   Q.  At that time he took certain action, such as putting the

  19   paper in his ear, correct, at the hearing?

  20   A.  I am sorry, I didn't hear you.

  21   Q.  Mr. Salim did certain things, such as I think you

  22   described he put papers in his ears at one point in a court

  23   proceeding?

  24   A.  Yes.

  25   Q.  Fair to say, though, at that same time you were prepared


   1   to meet with Mr. Salim under the conditions you described in

   2   the recreation room, that is, without any restraints being

   3   placed on Mr. Salim.

   4   A.  Yes.

   5   Q.  And in fact, on the morning of November 1, did you suggest

   6   that after you met in the computer room you move to the

   7   recreation room where it was more open?

   8   A.  Yes.

   9   Q.  I would like to talk a little bit more about November 1.

  10   When your client left the room with Officer Pepe, you

  11   testified, I believe, that he was carrying that folder with

  12   his materials inside; is that correct?

  13   A.  He was carrying the folder.  I assume it had his materials

  14   inside.

  15   Q.  You didn't see any materials left in the room?

  16   A.  There might have been CDs left in the room.  I don't

  17   recall specifically.

  18   Q.  But he definitely took the -- was it a Redwell file?

  19   A.  Yes.

  20   Q.  And he took that with him when he walked away with Officer

  21   Pepe?

  22   A.  Yes.

  23   Q.  You mentioned that after a certain time after the officers

  24   entered 10 South, you saw a body you believed was your client

  25   being brought around to the front of the 10 South unit.


   1   A.  Yes.

   2   Q.  Before that time, did officers or other staff enter that

   3   section of the unit and check the doors?

   4   A.  Yes.

   5   Q.  You testified when you see this person being dragged on

   6   the floor --

   7   A.  Excuse me.  I am sorry, but I think I have to correct

   8   that.  There was a time, there were many times when officers

   9   checked, pulled on our door, and I saw them pull on other

  10   doors and I heard them pull on yet others, but I cannot say

  11   for certain whether that was before or after I first saw

  12   Mr. Salim being dragged to that area.

  13            MR. GARCIA:  If I may have a moment, your Honor.

  14   Q.  Mr. Adler, after this day, November 1, did there come a

  15   time that you again visited Mr. Salim before you were

  16   relieved?

  17   A.  Yes.

  18   Q.  Do you remember approximately when that day was?

  19   A.  Within a day or two.

  20   Q.  Did you observe any injuries --

  21   A.  Maybe it was three or four, but within that period.

  22   Q.  Did you observe any injuries to Mr. Salim's face or eyes

  23   that would have been consistent with the blow you described?

  24   A.  No, I didn't.

  25   Q.  In fact, at that time did you come to doubt that it was


   1   your client who had been on the floor in front of your cell?

   2   A.  I had doubts because I didn't see injuries consistent with

   3   what I had seen before, yes.

   4            MR. GARCIA:  I have nothing further.

   5            MR. RUHNKE:  Nothing further, your Honor.

   6            THE COURT:  Thank you.  You may step down.

   7            (Witness excused)

   8            THE COURT:  Defendant may call its next witness.

   9            MR. RUHNKE:  Special Agent Jason Randazzo, who I hope

  10   is in the back.


  12        called as a witness by the defense,

  13        having been duly sworn, testified as follows:


  15   BY MR. STERN:

  16   Q.  Good morning, Agent Randazzo.

  17   A.  Good morning.

  18   Q.  How are you employed, sir?

  19   A.  I am a special agent of the Federal Bureau of

  20   Investigation.

  21   Q.  How long have you been employed by the Federal Bureau of

  22   Investigation?

  23   A.  Eleven years.

  24   Q.  What kind of work specifically do you do with them?

  25   A.  My primary work, I work on a squad that investigates


   1   crimes that occur on government property.

   2   Q.  Did you investigate such a crime on November 1 of the year

   3   2000?

   4   A.  Yes, I did.

   5   Q.  Where did that crime take place?

   6   A.  The crime took place at the Metropolitan Correctional

   7   Center.

   8   Q.  As part of your investigation of that crime, did you

   9   interview people who may have been witnesses in connection

  10   with it?

  11   A.  Yes, I did.

  12   Q.  Do you recall interviewing a person named Elise Santulli?

  13   A.  Yes, I do.

  14   Q.  Did Miss Santulli have contact with a victim of an assault

  15   named Louis Pepe?

  16   A.  Yes, she had had constant contact with him, yes.

  17   Q.  Did you ask Miss Santulli whether or not Mr. Pepe had made

  18   any statements in connection with the incident which had

  19   occurred?

  20   A.  Yes, I did.

  21   Q.  Did she tell you that he made no such statements?

  22   A.  At that moment, yes, she did tell me.

  23   Q.  That was on November 1, right?

  24   A.  Yes, it was.

  25   Q.  Right after the incident occurred?


   1   A.  The same day.  It was a time later after she had been with

   2   Officer Pepe throughout the incident on his way to the

   3   hospital.

   4            MR. STERN:  Thank you.  I have nothing else.


   6   BY MR. GARCIA:

   7   Q.  Good morning, Agent.

   8   A.  Good morning.

   9   Q.  Agent, I would like to ask you a little bit more about the

  10   circumstances of your interview with Elise Santulli.

  11   A.  Certainly.

  12   Q.  You mentioned that it was the same day.  Was it later at

  13   night?

  14   A.  Yes.

  15   Q.  Where did the interview take place?

  16   A.  I believe the interview took place almost directly out of

  17   an x-ray room at Bellevue Hospital, in which Santulli had

  18   escorted Officer Pepe to and was still with him inside the

  19   x-ray room while he was getting x-rays taken of his led.

  20   Q.  Fair to say that that was a fairly active scene there, a

  21   lot of activity going on?

  22   A.  Yes.  They were still undergoing treatment to Officer

  23   Pepe.  He still at that time while I was there had an

  24   instrument in his eye and they were taking x-rays to find out

  25   the proper way of removing that.  Miss Santulli was in the


   1   x-ray room with Officer Pepe at that time.

   2   Q.  Approximately how long did your interview with

   3   Ms. Santulli last?

   4   A.  It was pretty brief.  We just wanted to speak with her and

   5   get whatever information that we could, but we didn't want to

   6   keep her away from Officer Pepe, because she had been with him

   7   throughout the entire ordeal at that time.

   8   Q.  Do you have a rough estimate, 10, 15, more?

   9   A.  No, a couple minutes, if that.

  10            MR. GARCIA:  I have nothing further.


  12   BY MR. STERN:

  13   Q.  Agent, when you spoke with Miss Santulli, you asked about

  14   two kinds of statements, one related to the incident, correct?

  15   A.  I believe so.  I don't remember the exact question.

  16   Q.  And also questions related to Officer Pepe's physical

  17   status, right?

  18   A.  Yes.

  19   Q.  She said he only made statements as to his physical

  20   status, right?

  21   A.  From what I believe, his contact with the ambulance

  22   personnel going up to the hospital, at that time, from what I

  23   believe.

  24   Q.  He only made statements related to his physical status?

  25   A.  From what she could recollect at that time in the


   1   ambulance.

   2   Q.  He only made statements related to his physical

   3   statements?  Yes or no.

   4   A.  At that time, yes.

   5   Q.  She also told you he made no statements related to the

   6   incident which he was assaulted, correct?

   7   A.  At that time, no.

   8   Q.  So she was able to distinguish from those two different

   9   types of statements as she was speaking to you, correct?

  10            MR. GARCIA:  Objection.

  11            THE COURT:  Overruled.

  12   A.  I don't know what her state of mind --

  13   Q.  I am not asking her state of mind.

  14            MR. GARCIA:  Objection.

  15   Q.  Was she able to distinguish --

  16            THE COURT:  You are asking him the other person's

  17   state of mind.  The objection is sustained and it is

  18   repetitious.

  19            MR. STERN:  I have nothing else, thank you.

  20            MR. GARCIA:  Nothing, Judge.  Thank you.

  21            THE COURT:  You may step down.

  22            (Witness excused)

  23            (Continued on next page)




   1            MR. RUHNKE:  The next order of business is to play

   2   the final episode of the tape on Bosnia, which is about 45

   3   minutes.  I don't know whether your pleasure is to take a

   4   break now.

   5            THE COURT:  You want to break now?

   6            THE JURY:  Break now.

   7            THE COURT:  Break now.

   8            (Recess)

   9            (Jury present)

  10            THE COURT:  All right, we can run that second

  11   documentary.

  12            (Videotape played)

  13            THE COURT:  The defendant may call its next witness.

  14            MR. STERN:  Dr. Jerrold Post.

  15    Dr. JERROLD POST,

  16        called as a witness by the defendant,

  17        having been duly sworn, testified as follows:


  19   BY MR. STERN:

  20   Q.  Dr. Post, tell me a little about your educational

  21   background.

  22   A.  I received my B.A. and M.D. from Yale University, received

  23   postgraduate training in psychiatry from Harvard University,

  24   Harvard Medical School, and the National Institute of Mental

  25   Health, also received some training in international affairs


   1   at the Johns Hopkins School of Advanced International Studies.

   2   Q.  And after you left Johns Hopkins, what was the next thing

   3   you did?

   4   A.  After I left my medical postgraduate training in

   5   psychiatry, I then assumed a career at the Central

   6   Intelligence Agency, where I founded and led the center for

   7   analysis of personalities and political behavior.

   8   Q.  Did you have a particular specialty while working for the

   9   Central Intelligence Agency?

  10   A.  Pardon me?  I didn't hear you.

  11   Q.  Did you have a particular specialty?

  12   A.  Yes.  My specialty there was preparing assessments of

  13   world leaders for the president, Secretary of State, Secretary

  14   of Defense for use at Summit meetings and in crisis

  15   negotiations.

  16            In that role, I developed the profiles of Menachem

  17   Begin and Anwar Sadat for Jimmy Carter at Camp David.

  18   Q.  Did you win any particular awards while you were working

  19   for the CIA?

  20   A.  Yes.  I was awarded the Intelligence Medal of Merit and

  21   the Studies in Intelligence award.

  22            I might note, in addition to the profiles of world

  23   leaders, I was asked to use the same techniques in trying to

  24   understand psychology at a distance, when the epidemic of

  25   terrorism began in the early 1970s, to begin studies of the


   1   psychology of terrorism.  This was the first government

   2   enterprise in this area.

   3   Q.  Have you continued that work to this day?

   4   A.  I continued that work through my academic career and have

   5   been an active scholar among the rank of terrorist scholars.

   6   Q.  Where are you now a scholar?

   7   A.  I am now at the George Washington University, where I am

   8   professor of psychiatry, political psychology and

   9   international affairs, and director of the political

  10   psychology program.  There, I teach courses in leadership and

  11   decision-making as well as the major course in political

  12   violence and terrorism and conduct research on terrorism.

  13   Q.  In the course of your study of terrorism, have you had the

  14   opportunity to meet with and read interviews with numbers of

  15   people charged with terrorism?

  16   A.  Yes, I have had the opportunity.  This is a rather unusual

  17   aspect of the research I have conducted in terrorism.  I am

  18   currently, for example, conducting a study with the

  19   sponsorship of the Smith Richardson Foundation, where we have

  20   now interviewed 28 incarcerated Middle East terrorists looking

  21   at their decision-making and psychology.

  22   Q.  And in the time you were at the CIA and the time you have

  23   been a professor, have you written books and articles?

  24   A.  Yes.  I now have some eight chapters on terrorist

  25   psychology in textbooks, including the lead chapter in the


   1   Reich Textbook on motivations of terrorists called the

   2   "Psychologic of Terrorism."  I have some 30 published articles

   3   on on terrorist psychology, terrorism and counter-terrorism,

   4   and have published two books, co-author, one, "When Illness

   5   Strikes the Leader," the second, which is relevant to the

   6   topic under discussion today, "Political Paranoia:  The Psycho

   7   Politics of Hatred."

   8   Q.  Have you ever had the role of an expert in a criminal case

   9   other than this one?

  10   A.  I have in one earlier case of a terrorist, the Abu Nidal

  11   terrorist, Tarik Aziz, who was implicated in the skyjacking of

  12   an Egypt airplane that was brought down in Malta in which 50

  13   individuals were killed.  I was asked to serve as an expert on

  14   the psychology of terrorism.

  15   Q.  In that case were you working for the defense or the

  16   prosecution?

  17   A.  No, it was the Department of Justice who asked me to serve

  18   as an expert on terrorism for them in that case.

  19   Q.  Did you actually testify in that case?

  20   A.  No, I did not.

  21   Q.  Did you see the video we were just watching?

  22   A.  Yes, I saw the two videos.

  23   Q.  Did that video you saw end with what sometimes is referred

  24   to the as the Dayton Accords, correct?

  25   A.  Correct.


   1   Q.  That was what year, the Dayton Accords, do you know?

   2   A.  Let's see, the Dayton Accords were 1993, I believe.

   3   Q.  After the Dayton Accords, was that the end of the problems

   4   in Bosnia?

   5   A.  No, and I will be coming back to this later in trying to

   6   understand the impact of this on the defendant.  The Dayton

   7   Accords had, as the peacemaker of Dayton, Milosevic, who you

   8   saw in the film.  I have written a profile of Milosevic for

   9   the United States Information Agency, which was sent to all

  10   embassies abroad, titled "Milosevic:  From the Peacemaker of

  11   Dayton to the Butcher of Belgrade."

  12            And he went on in a very cunning way, using the cover

  13   of his charm -- he has been called by Warren Zimmerman, the

  14   previous ambassador to Yugoslavia, the slickest con man in the

  15   Balkins.  He went on to orchestrate a continuing policy of

  16   ethnic cleansing.  The graves, the mass graves are still being

  17   uncovered.  And as you may be aware, just the last few days,

  18   his own indictment as war criminal for crimes against

  19   humanity.  It has now been agreed by the new government in

  20   Belgrade that he will be able to be extradited to the Hague,

  21   to the war crimes tribunal, for his concerted policy of ethnic

  22   cleansing, an absolutely horrific policy that he instituted

  23   quite consciously.

  24   Q.  Now, in preparation for this case, did you review various

  25   sources and documents?


   1   A.  Yes, I did.

   2   Q.  And what were those?

   3   A.  I reviewed in detail the FBI report of their interview

   4   with the defendant; I reviewed the report of the background by

   5   the -- concerning the social background of the defendant by

   6   Jill Miller; I had the opportunity of going in some detail

   7   through the majority, not all, of the transcript of the other

   8   defendants.

   9            In addition to this, I continued my research on the

  10   religious extremist leader Usama Bin Laden and his group al

  11   Qaeda.

  12   Q.  If you could talk a little about where Usama Bin Laden's

  13   politics fit on a spectrum of terrorism in the world today.

  14   A.  Let me very briefly just distinguish different kinds of

  15   terrorism.  I think there is a tendency at times to think

  16   about all terrorists being alike, but their psychologies

  17   really are quite different.

  18            On the one hand, the terrorism that first caught our

  19   attention back in the early 70s was national separatist

  20   terrorism, where a minority group was trying to achieve

  21   separate nationhood for its own people, carrying on the

  22   mission of their fathers and grandfathers.  And a good example

  23   of this about which we regularly hear, of course, is the

  24   provisional Irish Republican Army in Northern Ireland.

  25            At the same time, there was the Marxist-Leninist


   1   terrorism during the same years in Europe in particular, with

   2   the Red Army faction in Germany, the Red Brigade in Italy, the

   3   Baader-Meinhof Gang, the Shining Path.  Right wing terrorism,

   4   which has been on the increase, especially in this country,

   5   which comes from a fascist orientation and a group which was

   6   only seen to some degree earlier in the 70s but has been

   7   increasing in recent years, and that's religious extremists

   8   terrorists, religious fundamentalists terrorists.

   9            I want to be clear, I'm not talking only about

  10   radical Islam.  There are Jewish fundamentalist terrorists,

  11   there are Christian fundamentalist terrorists and there are

  12   Islamic fundamentalist terrorists.  Basically, violence as

  13   communication.  The are other terrorisms who are trying to

  14   call attention to their cause for Western audience, but in

  15   recent years we have seen some 40 percent of terrorist acts

  16   having no responsibility claimed for them.

  17            We believe that is basically because of the

  18   increasing frequency of radical fundamentalist terrorism,

  19   because these terrorists are not killing for Western audience,

  20   they are killing in the name of God, and God knows what they

  21   have done.  They don't need a headline in the New York Times

  22   or in a story on CNN.

  23   Q.  You are familiar, are you not, with the fact that Usama

  24   Bin Laden is the head or one of the leaders of an organization

  25   referred to as al Qaeda, correct?


   1   A.  Right.  Usama Bin Laden founded this transnational

   2   terrorist organization, al Qaeda, which means "the base," and

   3   he represents the extremity of religious Islamic

   4   fundamentalist terrorism.

   5   Q.  I think you said you had a chance to meet with Mohamed

   6   Sadeek Odeh; is that correct?

   7   A.  I did meet with a member of the al Qaeda group, Odeh, and

   8   one of the unusual aspects that he communicated to me, which

   9   is rather different from other terrorist groups with which I

  10   have had experience, is the role of training in the camps.

  11   And he made a sharp distinction between the members of al

  12   Qaeda and the non-members of al Qaeda.

  13            The members, he indicated, would have a chance to

  14   critique operations, to think about programs; they would be a

  15   participant in decision-making and policy-making, but at the

  16   same time they recruited a number of low-level individuals in

  17   order to assist them in their operations.  And one of the ways

  18   of recruiting them, in fact, was both to become aware of such

  19   individuals in the mosques, where they were often hearing

  20   about the need to support suffering Muslims around the

  21   world -- and let me just note that what you saw about Bosnia,

  22   that it was at the time that Khalfan Mohamed was in the camps

  23   that he was hearing about the poor Muslim victims around the

  24   world, but in Bosnia and Chechnya in particular, who were

  25   being exposed to these horrors.


   1            So this was a very ripe climate to recruit young,

   2   inflamed Muslims from to help join in the struggle without

   3   ever even telling them about al Qaeda.

   4   Q.  So when Odeh was discussing the role of non-members, did

   5   he tell you whether they were ever told the group for whom

   6   they were working?

   7   A.  No, he indicated that it was a tiered organization, I

   8   believe that was his phrase; that there were a distinction,

   9   discrimination between members and non-members and the

  10   non-members would not even be told about the name of this

  11   organization al Qaeda.  They would be told, in effect, that

  12   their job, that they were all trying to help the suffering

  13   Muslims around the world.

  14   Q.  Did he discuss with you any distinctions in the

  15   organization between educated and uneducated people and

  16   between Arab and non-Arab Muslims?

  17   A.  Yes, this was quite striking.  On the latter point, there

  18   was a bit of what can only be described as discrimination.  He

  19   described the fact that there was distinct echelons within al

  20   Qaeda and that the Arab Muslims were held in higher regard

  21   than African Muslims, and that it was, in particular, it would

  22   be rather difficult for them to actually have an African

  23   Muslim as a full-fledged member of the organization.

  24   Q.  From your conversations with Mohamed Sadeek Odeh and your

  25   readings in connection with this case and your conversations


   1   with Khalfan Mohamed, do you know whether or not he was a

   2   member of al Qaeda?

   3   A.  Khalfan Mohamed was distinctly not a member of al Qaeda.

   4   He was recruited to help with logistics.  He falls into the

   5   classification of what they did strategically, of taking

   6   individuals committed to help Islam, to help the struggling

   7   Muslims around the world, and in effect brought him in in that

   8   role -- distinctly not a member of the al Qaeda, distinctly

   9   not a Islamic fundamentalist terrorist indeed.

  10   Q.  You are familiar, are you not, with the family chronology

  11   done by Jill Miller, right?

  12   A.  I am familiar with that family chronology and I myself

  13   took a detailed social background and history from Khalfan

  14   Mohamed.

  15   Q.  Could you talk about some of the things that you think

  16   made him susceptible to becoming used in this operation?

  17   A.  Well, there were several aspects about his background

  18   which were quite striking to me, and as I -- one of the things

  19   I always try to do as I have studied profiles of leaders and

  20   terrorists alike is make sense of their current functioning

  21   and the shaping of their attitudes and backgrounds and how

  22   their background shaped their values.

  23            He was born in 1973, and when he was six or seven his

  24   father died.  I think that's really important to emphasize,

  25   because it led him to turn, in the first place, to his older


   1   brother as really a father surrogate in many ways, but also to

   2   be seeking authority.  He went to the Madrasa, the religious

   3   school, which is quite doctrinaire in what it teaches, and

   4   there he was told by the religious official that the job of

   5   the Muslim is to obey authority, to not ask questions, and to

   6   further the words that one finds in the Koran -- to be a good

   7   Muslim, but to just accept authority and particularly to

   8   respect learning and pious individuals.

   9            One year short of his graduation from secondary

  10   school, his brother, who by then had founded a small grocery

  11   in the Mainland.  They were on the island of Zanzibar, where

  12   some 90 percent, I might note, were Muslims.  He was asked to

  13   come to Zanzibar to help and be a clerk in this small grocery

  14   store.

  15            He did that with some intent to finish his education

  16   there, but did not do so.  So here he was, not particularly

  17   educated, rather alone, he had always been somewhat of a

  18   loner, didn't make friends easily, but there was one place

  19   that he found acceptance, and that was in the mosque.  And

  20   this is really rather more political a mosque than what he had

  21   experienced in Zanzibar, where he regularly was praying, was a

  22   very devout Muslim indeed and, I might note, by far the most

  23   devout member of his family.

  24            But there he found a sense of acceptance and there he

  25   was hearing, and I want to emphasize this, when he came to the


   1   mosque, he was hearing what was happening to Muslims around

   2   the world.  As we went on to the years of 1991, '92, by then

   3   some of the struggles were beginning and we were already

   4   seeing -- and I might note, this film you saw about Bosnia was

   5   rather bland, in my judgment.

   6            You may all recall yourselves some of what you saw on

   7   CNN and other news media, mass graves, where they were -- and

   8   if you look closely at those columns of people walking down

   9   the road, most of them were women and children.  They were

  10   separated from the men down to the age of 14, and boys and men

  11   of 14 were brought up, brought together, rounded up, killed

  12   and put into mass graves.  The mass graves are still being

  13   developed.

  14            There were policies of mass rape.  In fact, Radovan

  15   Karadzic, by the way, I say, to my shame, as a psychiatrist,

  16   he was a psychiatrist.  He was condemned by the American

  17   Psychiatric Association for his role in using his knowledge to

  18   ensure that the trauma of forced policies of rape, where

  19   neighbor was raping neighbor, would lead the country never

  20   able to be put together again.  A remarkable person, whose

  21   face you saw, very sophisticated individual, just like

  22   Milosevic.

  23            He was a poet, too.  He came to Columbia University,

  24   and in one of his poems he wrote, "I celebrate the majesty of

  25   the bullet, as it plows its way through the honeycomb of the


   1   brain."  In another, which was to gain a fair amount of

   2   attention, as his role came from it, was called "The Morning

   3   Hand Grenade."

   4            "I lurk in the shadows of dawn, yearning to throw the

   5   morning hand grenade, loaded with the laughter of a dark man

   6   of despairing character."

   7            A very strange individual who, like Milosevic,

   8   exploited the long-standing but pushed down tensions over

   9   ethnic divisions to become a hero for the Serbs at the expense

  10   of the Muslims.

  11   Q.  Dr. Post, let me ask you something about the Muslim

  12   community.  Do Muslims generally consider themselves part of a

  13   nation, a single nation, like the United States or Croatia, or

  14   is there another way Muslims consider themselves?

  15   A.  There is a word umma, U-M-M-A, which basically means the

  16   community of religious Muslims, and one thing to emphasize is

  17   that, is the contrast between what young Khalfan Mohamed

  18   experienced when he went to the mosque, what he was

  19   experiencing the rest of his life.  Because there he felt like

  20   he belonged, he belonged to something kind of larger than

  21   himself -- this Muslim community of committed Muslims.

  22            And what they were told in the mosque was that it was

  23   the obligation of every good Muslim to join in the struggle,

  24   to help Muslims around the world as a member of this

  25   community, this international community, and to help the


   1   suffering Muslims.  And you must remember, what they were

   2   being shown -- and they had television there and they were

   3   able to see much more horrible than what you saw, what they

   4   were able to see was the suffering Muslims around the world

   5   who were being victimized.

   6   Q.  In the statement that you read that was made to the FBI,

   7   Khalfan Mohamed talks about a time when he went to Afghanistan

   8   for training, correct?

   9   A.  Yes.

  10   Q.  Could you talk a little about what led to that and what

  11   that experience was like.

  12   A.  When Khalfan was in the mosque, he really became consumed

  13   by a mission to become basically a soldier for Islam.  And I

  14   want to remind you, we're not talking about an insurgency or

  15   struggle in the street.  You saw tanks.  You saw heavy armor.

  16   You saw planes strafing there.  He was watching television

  17   like this and he saw himself in a kind of uniformed way as

  18   wanting to become a soldier to fight against the soldiers, the

  19   Serb soldiers who were killing innocent Muslim victims, the

  20   Russian soldiers who were killing innocent Chechnian Muslim

  21   victims.

  22            So his goal was to become somehow a soldier and

  23   Fahid, who he met there in the mosque, told him in order to

  24   help Islam, it was necessary for him to get training in order

  25   to become a soldier and fight against the Serb military in


   1   Bosnia, to fight against the Russian military in Chechnya, he

   2   would need to get training and then he could do these things.

   3   So that was the background of his recruitment to go to the

   4   camps.

   5   Q.  Have you had a chance to talk to people who have done

   6   research on it, in fact been to these kinds of camps?

   7   A.  Yes, I have had the opportunity to do that.  Now, they

   8   have been called terrorist university and were founded by

   9   Usama Bin Laden during the early Afghanistan struggle when, in

  10   fact, with the United States support, the Afghan Muslims were

  11   fighting in what became the Soviet version of Vietnam, the

  12   Soviet invasion of Afghanistan, which was fought back

  13   successfully by the Afghan Muslims.

  14            There, it was there really that Usama Bin Laden won a

  15   great deal of respect and authority within this community by

  16   providing from his own fortune of some $50 million for camps

  17   to train the Muslim fighters and provided weapons for arms.

  18   And that was the background for the camps, which continued

  19   after that struggle was over.

  20            In the camps themselves there was really two parts of

  21   the training.  A.  There was training to be a military

  22   combatant, small weapons fires, training in explosives and so

  23   forth.  That went on in the morning.  In the afternoon, there

  24   was training in ideology and training in the Koran.

  25            There is a distinction to be made between the


   1   training that was offered to members of al Qaeda and the

   2   non-members who were brought there, because it was the

   3   non-members in particular who were given this ideological

   4   training.

   5   Q.  Let me stop you for one second.  Did people who were

   6   non-members go to those camps thinking they were al Qaeda

   7   camps?

   8   A.  No, they went in order to be trained to help Muslims

   9   around the world.  In fact, Khalfan Mohamed had never heard

  10   the words al Qaeda, had never heard of Usama Bin Laden before

  11   going to the camps.  In the camp itself in which he was, he

  12   never heard about al Qaeda, although he did learn that the

  13   camp was run by Usama Bin Laden.

  14            Now, one distinction I would like to make is what was

  15   being taught in very recent years in the camps and what was

  16   being taught then in terms of the ideology.  At that time,

  17   when he went to the camp in 1994, the basic targets or the

  18   basic conflicts with which they were striving, commanding to

  19   strive people were the terrible things happening in Bosnia, in

  20   Chechnya, to some degree in Kashmir, some attention going to

  21   Palestine, very little actually going to America as a target,

  22   actually.

  23            The one thing he did hear about to some degree was

  24   the fact of, since the Gulf War, American military being in

  25   Saudi Arabia and there was a need to expel American military


   1   from Saudi Arabia.  But there was no general anti-U.S.

   2   ideology at that time.  In fact, it was only in 1998, I

   3   believe, that Usama Bin Laden issued his fatwah that all

   4   Americans would be targets anywhere.

   5            Up until then, the main thrust was to expel U.S.

   6   military from Saudi Arabia because of its role as the

   7   custodian of the holy shrines of Islam.

   8   Q.  How did those camps that we are discussing now compare to

   9   what our idea of an American military camp is like?

  10   A.  Well, there was, first, basic training, which did have

  11   certain similarities, but they really are extremely primitive.

  12   In fact, when I spoke about the camps with Khalfan Mohamed, he

  13   spoke about how bitter cold it was in the winter.  Basically

  14   they are rather primitive huts, not very well constructed at

  15   all.  In fact, they moved camps around in some ways,

  16   especially in more recent years as the camps have become an

  17   object of surveillance.

  18   Q.  At the end of his training, what happened with

  19   Mr. Mohamed?

  20   A.  Well, he again was told if he got this training, he would

  21   win the trust and be able to go off and fight the battles in

  22   Bosnia or in Chechnya.  That's what he wanted to do, to be a

  23   soldier against soldiers.  And I think, and I really want to

  24   emphasize that, to his great disappointment, he was told,

  25   after his nine months or so of training, he would not be able


   1   to join those conflicts and went back home and was really

   2   bitterly disappointed, because that was the whole purpose of

   3   his going there.  He was told to leave his phone number or

   4   number where he could be reached to keep in touch kind of, but

   5   he went back to his lowly job as a grocery store clerk.  But

   6   he did connect back to the mosque, again, the one place where

   7   he continued to hear about the need to help Muslims.

   8   Q.  You also note know from a statement he made to the FBI

   9   that at some point he was approached by a person named

  10   Hussein, right?

  11   A.  Well, yes.  Let me back up some.  He was brought into

  12   contact with a small group in Mombasa by Fahid, who introduced

  13   him to Hussein.  Hussein was described to me by Odeh, a member

  14   of al Qaeda, as a very strong leader, a man of compelling

  15   personality.  He didn't use the word charismatic, but that was

  16   the basic quality that he communicated -- strong, persuasive,

  17   authoritarian.

  18            When I talked to Khalfan Mohamed about Hussein, he,

  19   too, described him as a very strong leader, a very powerful

  20   personality.  Now, I want to remind you he had been told -- by

  21   the way, he also mentioned that he was a highly religious man

  22   and a very educated man.  He had been told back in Zanzibar at

  23   age 7 or 8 or so when he was in the schools the importance of

  24   paying unquestioning respect to learned men who were pious and

  25   religious men, who were authorities, and Hussein conveyed


   1   himself as an authority to young Khalfan Mohamed.

   2            Now, also important to emphasize here is there was no

   3   indication of al Qaeda, no discussions about Usama Bin Laden.

   4   What was being discussed was the suffering Muslims around the

   5   world.  Hussein was to come back to Dar es Salaam, take a home

   6   near where young Khalfan Mohamed was a resident, and only

   7   three years after the training had occurred -- again, he's

   8   yearning to participate in the struggle, he's continuing to

   9   have these conversations -- did the Ultimate invitation come,

  10   would you like to do a jihad job.

  11            But it's important to emphasize, before this, he had

  12   done two things before then to try to contribute.  He had gone

  13   from Mombasa to Somalia (A) to see what a good, more Islamic

  14   community was like and to see about the struggle there, where

  15   there was a rather fierce Islamic struggle going on there, and

  16   to help the Muslims there.  Indeed, he participated in some

  17   training, teaching, what he had learned in the camps himself.

  18   Q.  In the statement you read that he made to the FBI,

  19   Mr. Mohamed talked about, from the beginning, when he is asked

  20   to do jihad, what happened.  So why don't you talk about that

  21   a little.

  22   A.  I didn't hear you.  I'm sorry.

  23   Q.  Yes.  He's approached by Hussein at some point, the

  24   statement says, and from there the process that ends with the

  25   bombing of the Tanzanian Embassy begins.  Tell me about that


   1   process.

   2   A.  Yes, you used in your question, Mr. Stern, the word

   3   "jihad," and I think, if I can take a moment, I would like to

   4   say what a complex word that is and what it means and what it

   5   means to him, what it meant to him, what it means to him and

   6   continues to mean to him, and what it has meant to more

   7   radical Islamists.

   8            Jihad we often think of in America, I think, as

   9   meaning holy war.  Jihad actually literally means struggle,

  10   self-exertion, self-discipline to become a good Muslim.

  11   Muslim jurists speak about the jihad of the heart, the jihad

  12   by the tongue, by deeds and, lastly, by the sword.

  13            And the jihad of the heart means to eliminate impious

  14   thoughts or feelings from you.  Jihad of word is to preach the

  15   words of the Koran to others and to teach those words.  Of

  16   deeds might be to be helping in a clinic or to be a teacher.

  17   And finally, the jihad of the sword.  And even in the jihad of

  18   the sword, let me remind you, he wanted to be a soldier among

  19   soldiers, a military man.

  20            So back to --

  21            MR. STERN:  Judge, if we can, maybe now is a good

  22   time to break for lunch.

  23            THE COURT:  Yes, we'll break for lunch and we'll

  24   resume at 2:15.

  25            (Luncheon recess)


   1                         AFTERNOON SESSION

   2                             2:15 p.m.

   3            (In open court; jury present)

   4   JERROLD POST, resumed.

   5            THE COURT:  Mr. Stern, you may continue.

   6   DIRECT EXAMINATION continued

   7   BY MR. STERN:

   8   Q.  I want to clear up a few things.  You talked about a store

   9   that Khalfan Mohamed's brother owned.  Where was that store?

  10   A.  The store was in Dar es Salaam, the capital of Tanzania,

  11   and he had been asked to leave his home in Zanzibar to come to

  12   Dar es Salaam.

  13   Q.  Did that store remain long in Dar es Salaam?

  14   A.  Pardon me.

  15   Q.  Was the store in Dar es Salaam for a long time?

  16   A.  His brother had started the store.  He brought it into

  17   business.

  18   Q.  Did there come a time when it closed?

  19   A.  One of the aspects that it is perhaps important to stress

  20   is, just before the invitation by Hussein, in fact, his

  21   brother, whom he left Zanzibar to go to Dar es Salaam and join

  22   in the store, decided to go to London, and in fact he was kind

  23   of, I wouldn't say abandoned by this but his initial plan

  24   himself was to follow his brother to London, but then he

  25   realized that because he didn't have a full secondary


   1   education diploma, he would not be eligible to get a visa to

   2   go to London.

   3   Q.  I also want to clarify something about the camp he went to

   4   in Afghanistan.  What language was spoken in that camp?

   5   A.  This is important to stress, and I am glad you are asking

   6   me this.  The major language spoke was Urdu, U-R-D-U, which is

   7   the predominant tongue of both the Afghans and Pakistanis who

   8   are the main participants in the camp.  He did not know or

   9   understand Urdu.  Translations were available, but this left

  10   him feeling really somewhat like an outsider, and also not

  11   fully absorbing what was happening in these ideological

  12   sessions.  In fact, he mentioned to me feeling a little bit

  13   envious of the Pakistanis, because he saw them with fire in

  14   their eyes, is the way he put it, and he, not understanding

  15   what was being communicated to them, really was not in a

  16   similar fashion as inflamed.

  17   Q.  You talked about the written sources you reviewed in

  18   preparing for this case and about meetings you had, or a

  19   meeting you had with Mohamed Sadeek Odeh.  But you also had

  20   face-to-face meetings with Khalfan Mohamed, didn't you?

  21   A.  Yes, I should have mentioned that.  I met with him on four

  22   separate occasions for, I suppose, someplace between 11 and 12

  23   hours in total.

  24   Q.  When we broke for lunch, you were talking about his

  25   beginning to do what was told to him as a jihad job, and what


   1   was in his statement about that?

   2   A.  I was somewhat perplexed -- I always try to put myself in

   3   the other person's shoes -- how someone could be asked to do a

   4   jihad job, sort of like being asked to do lunch or something

   5   like that and, with no more preparation, to say yes.  But as I

   6   have come to know Khalfan Mohamed, he places a great deal of

   7   store and stock in learned authorities, had been told to

   8   respond to authorities without questions, and this was part of

   9   his instruction in camp too, by the way.  And let us not

  10   forget, jihad for him meant helping the suffering Muslims.

  11            So that was the beginning of his acceptance.

  12            In terms of the question you left off before lunch

  13   with, the pathway to the actual bombing, what became clear

  14   rather early on to Khalfan Mohamed was that his job was

  15   basically -- this is not his word, it's my word -- to be a

  16   low-level gopher.  They needed someone in the first place who

  17   spoke the local language and someone who could assist with

  18   leasing a car -- I am sorry, purchasing a car and leasing an

  19   apartment.  So in contrast to the members of Al Qaeda, he

  20   operated in true name, in his own name, and he purchased the

  21   car with his name going on the certificate of ownership, and

  22   he signed the lease with his name going on the lease.  It was

  23   his job to straighten out the apartment -- he was a safe house

  24   minder in some ways -- and his job to purchase food, and do a

  25   lot of really fairly low-level tasks.


   1   Q.  Are you aware of other distinctions between him and the

   2   other people involved in this?

   3   A.  There were a number of distinctions.  I mentioned earlier,

   4   one crucial distinction was the participation in the planning

   5   for the operation.  The other members talked about this.  The

   6   other members were also aware of the operation in Kenya.  He

   7   was not made privy to any planning.  He did not know the

   8   target, he did not know what was really happening.

   9            There was one particularly, I would say, poignant

  10   moment when he was really beginning to have questions about

  11   what was happening, and he said to Hussein, he asked him

  12   questions, what is this jihad job, what are we going to do?

  13   And by then the dynamite had been brought into the home.

  14   Hussein looked at him rather coldly -- and I am reconstructing

  15   the words to me from Khalfan Mohamed now -- and said to him

  16   your job is not to ask questions, your job is to follow

  17   instructions, now get me a Fanta -- the orange drink.  When he

  18   told me this story he looked rather pained because it had, I

  19   think, become kind of clear to him just how low down the totem

  20   pole he was, what a minor actor he was.  And, as he said to

  21   me, I got him the Fanta and I didn't ask any more questions.

  22   Q.  Do you know if there were distinctions between him and the

  23   others in the way their travel plans were made?

  24   A.  Basically, in some ways he was exploited and left out to

  25   dry, in many ways.  He, as I mentioned, was operating in true


   1   name, signing his own name.  False documents had been provided

   2   in advance to the members of Al Qaeda which had been developed

   3   at the Al Qaeda documents facility.  Similarly, the members of

   4   Al Qaeda left five days before the bombing, with airfare

   5   provided to them back to Karachi, Pakistan.  They needed

   6   someone to be available with the driver, and they told him to

   7   stick around, clean up things, and they gave him $1,000, told

   8   him to get his own documents, which he did.  He got his own

   9   passport and ultimately took a bus to South Africa.

  10   Q.  You have spoken in your research with the sophisticated

  11   terrorists, have you not?

  12   A.  Yes.

  13   Q.  For example, Ramzi Yousef, or Sheik Abdul Rahman, would

  14   you consider them to be sophisticated people?

  15   A.  I assuredly would.  They were both masterminds of the

  16   World Trade Center bombing, and Ramzi Yousef was trained as an

  17   electrical engineer, extremely sophisticated.  Indeed, the

  18   blind sheik, as he has been called, was an extremely learned

  19   man who provided the spiritual rationale for radical Islamic

  20   acts.

  21   Q.  How do you think Khalfan Mohamed compares to the people we

  22   just talked about?

  23   A.  He really does not compare at all.  He is a devout Muslim.

  24   He was doing his bit to participate in jihad.  But let me give

  25   you an example of how unsophisticated he is.  He was asked as


   1   one of his last jobs to clean up after everyone had left, and

   2   in particular was told to dispose of the equipment.  They had

   3   used a food grinder, a flour grinder to grind the dynamite.

   4   He thought this was rather a wasteful thing to do and instead

   5   he gave it to his twin sister to pass it on to his mother, and

   6   it was ultimately traced to his twin sister, where it was

   7   found, and dynamite traces were then found on the grinder.

   8   Q.  Have you had a chance to talk to Khalfan Mohamed about his

   9   feelings about the results of this bombing?

  10   A.  Yes, I have.  He recounted to me that when he first saw

  11   the pictures of the bombed out shells of the building he was

  12   really horrified, especially with some of the pictures of the

  13   victims, and said to me I guess I should have thought of this,

  14   but those innocent victims, and tears came to his eyes as he

  15   said that.

  16            It was puzzling to me and I kind of went at him hard

  17   in this, how could he not know there would be innocent

  18   victims.  But I really want to emphasize what a remarkably

  19   unquestioning person he is.  He accepts authority, he does

  20   what he is told to do.  This was in the service of jihad.

  21            I threw him kind of what I would only describe as a

  22   soft lob at that point, and said to him, well, if you had the

  23   chance again would you still participate in jihad?  And to my

  24   total astonishment he said yes.  I was a bit taken aback.  He

  25   said I am a committed Muslim.  I am committed to the cause for


   1   the suffering Muslims around the world.  But there are many

   2   ways of doing jihad.  Their jihad is not my jihad.  My

   3   jihad -- and he used some of the words from the Koran in terms

   4   of words and deeds and teaching, and in fact spoke of when he

   5   went to South Africa, his teaching both within the family and

   6   youth within the neighborhood, the words of the Koran.  He

   7   said I want to continue to help the suffering Muslims.  He

   8   then said something else to me, because while he is quite

   9   accepting of authority, he said something rather interesting

  10   when he said to me their jihad is not my jihad, and he is,

  11   after all, someone who has studied the Koran very thoroughly.

  12   He said, my understanding of the Koran is that it makes no

  13   exceptions for innocent victims, that there are no

  14   circumstances that justify taking innocent victims, and had I

  15   asked questions or thought, I now regret that I did not ask

  16   more questions about what they were doing.

  17   Q.  You recall from reading the FBI statements that there were

  18   not expressions of remorse in that statement made a year after

  19   the bombing.  How do you reconcile that with what you are

  20   saying now?

  21   A.  I think there probably has been an evolution within him.

  22   In the first place, one of the things I think he probably had

  23   to do psychologically, and I have kind of really struggled

  24   with this, is, how did he make sense for himself of what he

  25   had been devoting this significant period of time to doing,


   1   going off for a training -- by the way, he paid his own way to

   2   the training camps.  He went there to be a soldier, to fight

   3   under the soldiers.  He had come under the influence of

   4   Hussein, and now here there were these horrifying pictures of

   5   the two embassies.  Somehow he had to make some sense for

   6   himself of this.  Over time, as he has been shown pictures,

   7   videos, I believe he has become horrified.  It hasn't lessened

   8   his faith or his commitment to do jihad, but to do jihad in

   9   the broader, moderate Islamic sense of struggling to lead a

  10   good Islamic life, to teach, to preach, to have a pure heart,

  11   and that is his continuing commitment.

  12            MR. STERN:  Thank you.

  13            THE COURT:  Cross-examination?

  14            MR. FITZGERALD:  Thank you, Judge.



  17   Q.  Good afternoon, sir.

  18   A.  Good afternoon.

  19   Q.  My name is Pat Fitzgerald, and if I talk too fast, please

  20   slow me down.

  21            This morning you mentioned to the jury that you were

  22   retained in connection with a federal case involving an Abu

  23   Nidal terrorist.  Do you recall that testimony?

  24   A.  Yes.

  25   Q.  Do you recall the name you said of the defendant in that


   1   case?

   2   A.  Tariq Aziz.

   3   Q.  Would it be fair to say his name was Omar Rezaq?

   4   A.  Pardon me.  A different terrorist.  Yes, that would be

   5   quite accurate.  My apologies.

   6   Q.  After that case, did you publish an article called

   7   "Terrorist on trial:  The context of political crime"?

   8   A.  I did.  I published that in the Bulletin of the American

   9   Academy of Psychiatry and Law, yes.

  10   Q.  If I could have copies of Government's Exhibit 4327.  Is

  11   that a copy of the article that you published in the bulletin?

  12   A.  Yes, it is.

  13   Q.  Did you indicate at the bottom of the fourth paragraph

  14   that "I was asked by the Department of Justice to participate

  15   in the case as a psychiatrist expert in the psychology of

  16   terrorism"?

  17   A.  Yes.

  18   Q.  "The other prosecution experts would demonstrate that

  19   Rezaq was legally sane but it was my task to provide a

  20   sense-making explanation for the jury of how an individual who

  21   was sane could commit such a bloody atrocity."

  22            Is that correct?

  23   A.  Correct.

  24   Q.  Is it not a fact that you did not actually testify in

  25   front of the jury in that case, in the case of United States


   1   v. Omar Rezaq?

   2   A.  That is correct.

   3   Q.  Did you ever make clear in the article that you published

   4   in that journal that in fact you never testified?

   5   A.  I indicated that I was assisting the prosecution.  I did

   6   not indicate I testified in the article.

   7   Q.  Did you write the statement, "The other prosecution

   8   experts would demonstrate that Rezaq was legally sane but it

   9   was my task to provide a sense-making explanation for the jury

  10   of how an individual who was sane could commit such a bloody

  11   atrocity"?  Is that correct?

  12   A.  That is correct.

  13   Q.  How many members of Al Qaeda have you interviewed?

  14   A.  One.

  15   Q.  Just Mr. Odeh, correct?

  16   A.  Correct.

  17   Q.  You were asked questions before about Omar Abdel Rahman

  18   and Ramzi Yousef.  Is it fair to say you did not interview

  19   them?

  20   A.  Eminently fair.  I would be delighted to have the

  21   opportunity.

  22   Q.  Do you know a person named Jamal Ahmed al-Fadl?

  23   A.  No.

  24   Q.  Do you know who he is?

  25   A.  No.


   1   Q.  Do you know a person named Kherchtou l'Houssaine, L

   2   apostrophe H-O-U-S-S-A-I-N-E?

   3   A.  Is that the Hussein in this case?

   4   Q.  Yes.

   5   A.  I don't know him.

   6   Q.  No, no, not the Hussein -- do you know, aside from the

   7   Hussein discussed with Khalfan as the person who approached

   8   him about the jihad job, do you know a person named Kherchtou

   9   l'Houssaine?

  10   A.  No.

  11   Q.  Do you know who he is?

  12   A.  No.

  13   Q.  Do you know a person by the name of Abu Ubaidah al

  14   Banshiri?

  15   A.  When you say no --

  16   Q.  Do you know who he is?

  17   A.  I need to understand the context.  Why don't you tell me

  18   what the person's role was.

  19   Q.  I am just asking you, do you recognize the name, Abu

  20   Ubaidah al Banshiri?

  21   A.  I am not terrific with names.

  22   Q.  Madani al Tayyib?

  23   A.  No.

  24   Q.  Do you know a person named Ayman al Zawahiri, A-Y-M-A-N al

  25   Z-A-W-A-H-I-R-I?


   1   A.  Were you to place these in context my answer might be yes.

   2   Just by the name, I do not recognize them.

   3   Q.  Let's talk for a moment about the process of the interview

   4   with Mr. Odeh.  Is it fair to say you interviewed Mr. Odeh

   5   once?

   6   A.  Yes.

   7   Q.  How long did the interview take?

   8   A.  Half an hour, 45 minutes.

   9   Q.  Is it fair to say that the government was not invited to

  10   participate in that interview?

  11   A.  Of course.

  12   Q.  Is it fair to say the government was not told about the

  13   interview in advance?

  14   A.  I don't know.  No, I don't believe that is the case, in

  15   fact, because we had to clear seeing him for me to be able to

  16   see him, with the court.

  17   Q.  Do you know if the prosecution team was told about the

  18   interview in advance?

  19   A.  I don't know.

  20   Q.  Certainly no one was invited to participate, correct?

  21   A.  Nor were they invited to participate when I talked to the

  22   defendant.  That would be most unusual.

  23   Q.  When you went in, and we will talk about that in a moment,

  24   to see Mr. Odeh, did you do a recording of the interview,

  25   audiotape or videotape?


   1   A.  No.

   2   Q.  Did you take notes?

   3   A.  Yes, I did.

   4   Q.  How long were your notes of that interview?

   5   A.  A few pages.

   6   Q.  Let me approach you with what we premarked, what I believe

   7   to be your notes -- let me make sure we are on the same

   8   page -- Government's Exhibit 4325, with a sticker on it.  If

   9   you can look at that exhibit and tell us particularly with

  10   regard to the first, second and third pages since they are

  11   your notes, first of all, all three pages, are they your

  12   handwriting?

  13   A.  They are in my not terrific printing.

  14   Q.  Are the first at least two pages concerning your

  15   interview --

  16   A.  There were more notes than just these three pages.

  17   Q.  Were there more notes that concerned your interview with

  18   the defendant?

  19   A.  Yes, which were sent on to you.

  20   Q.  Yes, we will deal with those separately.  I want to focus

  21   on the interview with Mr. Odeh.

  22   A.  This isn't Odeh.  These are my notes on Khalfan Mohamed

  23   that you just handed me.

  24   Q.  Did you produce notes of an interview with Mr. Odeh?

  25   A.  They were among the pages that were sent to you.


   1   Q.  Why don't I do this.  I will give you all the exhibits and

   2   you can tell me which ones concern Odeh.  4322, 4323, and

   3   4325.  If you could look through those notes -- and first of

   4   all, obviously, make sure all of those are your notes.  If

   5   there is something in there that is not written by you, please

   6   tell us.  Then identify which pages concern Mr. Odeh.

   7   A.  My notes for Odeh had "Odeh" on the top of the page, and I

   8   don't see any such page here.

   9   Q.  Let me make sure it is not a bad copying job.

  10            Sorry.  Would you look at the original and see if

  11   Odeh is in it.

  12   A.  This is the one, yes, good.

  13   Q.  So we are clear, is that a better copy that has the word

  14   Odeh sliced off at the top so you can see it is there?

  15   A.  Yes, right.  OK.

  16   Q.  Are those your notes concerning Odeh?

  17   A.  Yes.

  18   Q.  If you could look at the second and third page and tell us

  19   whether those each concern Odeh, particularly with regard to

  20   the third page.

  21   A.  Particularly with regard -- I am sorry.

  22   Q.  The third page.

  23   A.  That's not about Odeh.

  24   Q.  The third page.  If you could remove that from the third

  25   page.  Is it fair to say your notes concerning Odeh are two


   1   sheets of paper?

   2   A.  Which is what I told you before.

   3   Q.  So you interviewed about a half hour, 45 minutes, and you

   4   took two pages of notes, correct?

   5            THE COURT:  Which exhibit is that?

   6            MR. FITZGERALD:  That would be 4325.

   7   Q.  The first two pages of your notes concern Mr. Odeh, the

   8   last page does not, correct?

   9   A.  Yes.  The second paragraph in particular is relevant to

  10   the distinction I was trying to make before when --

  11   Q.  Sir, I just want to establish --

  12            THE COURT:  Just answer the question.

  13   Q.  I just want to establish what records we have.  You have

  14   two pages of notes for Mr. Odeh.  Are the balance of the notes

  15   you have up there your notes concerning the defendant Khalfan

  16   Mohamed?

  17   A.  Yes.

  18   Q.  When did your interview of Mr. Odeh take place?

  19   A.  On the occasion of my last interview with Mr. Mohamed.  I

  20   don't recall the dates.

  21   Q.  How long ago?

  22   A.  About a week and a half ago.  Just let me think.  I

  23   don't --

  24   Q.  Within the last month?

  25   A.  Oh, yes.  The memory is fresh.


   1   Q.  With regard to Khalfan Mohamed, you indicated that you

   2   interviewed him on four occasions.  Can you tell the jury what

   3   was the first occasion?

   4   A.  What was the date of the first occasion?

   5   Q.  Yes.

   6   A.  I don't have the dates clear in my mind.

   7   Q.  Can you tell us approximately?  Is it 1998, 1999?

   8   A.  These were all over about a five-week period, I suppose.

   9   Q.  The five-week period being the last five weeks?

  10   A.  Yes.

  11   Q.  Again, you will agree that the government wasn't invited

  12   to participate with you in the interview of Khalfan Mohamed?

  13   A.  Of course not.

  14   Q.  And that interview was not recorded, correct?

  15   A.  No, just my notes and my memory.

  16   Q.  Turning to the substance of the interview with Mr. Odeh,

  17   you indicated on direct examination that in comparison with

  18   Khalfan Mohamed, other members of Al Qaeda knew about the

  19   operation in Nairobi.  Do you recall telling us that?

  20   A.  Yes.

  21   Q.  Did you ask Mr. Odeh whether he would admit knowing about

  22   the operation in Nairobi when you interviewed him?

  23   A.  What he conveyed to me is in part that other members, that

  24   information would be kept away from other members for security

  25   reasons, that the, let's see, people in charge would use


   1   people like Khalfan Mohamed without them knowing anything, end

   2   quotes.  That's his words.

   3   Q.  And now keeping in mind my words, which is my question,

   4   did you ask Mohamed Odeh did he admit that he knew about the

   5   bombing operation in Nairobi?  Yes or no.

   6   A.  No.

   7   Q.  You didn't ask the question or he said he didn't know?

   8   A.  He had been talking to me about knowing the details of

   9   what was going on, and they would not tell the details to

  10   people who were not members of Al Qaeda such as Khalfan

  11   Mohamed.  It was implicit in that that he knew the details.

  12   Q.  You took it as implicit that Odeh knew the details?

  13   A.  Yes.

  14   Q.  Did you ever ask Odeh did you know about the Nairobi

  15   bombing in advance?

  16   A.  I just told you I did not.

  17   Q.  Sir, you indicated on direct examination with Mr. Stern

  18   that the other members of the Al Qaeda received passports from

  19   the Al Qaeda passport facility.  Do you recall that testimony?

  20   A.  Yes.

  21   Q.  Did you ask Mr. Odeh where he received his passport from

  22   prior to the bombing?  Yes or no.

  23   A.  No.

  24   Q.  You indicated to the jury that Mr. Khalfan Mohamed

  25   received $1,000, correct?


   1   A.  Yes.

   2   Q.  Did you ask Mr. Odeh how much money he was given prior to

   3   the bombing?

   4   A.  No.

   5   Q.  If we could turn --

   6   A.  The $1,000, as I understood it, was to help him with his

   7   own transportation and getting settled.

   8   Q.  Yes.  My question to you was, did you ask Mr. Odeh how

   9   much money he was given to help him with his transportation

  10   and getting him settled?  Yes or no.

  11   A.  No.

  12   Q.  Sir, you indicated that after Mr. Khalfan Mohamed was --

  13   did you indicate in the report your belief that after the

  14   other people left Tanzania prior to the bombing, that Khalfan

  15   Mohamed was left to his own devices?

  16   A.  Yes.

  17   Q.  You said you believed he was hung out to dry, correct?

  18   A.  Right.

  19   Q.  What was your understanding whether or not when the other

  20   people left Tanzania prior to the bombing, whether or not a

  21   plan had been made as to where Khalfan Mohamed would go after

  22   the bombing?

  23   A.  The suggestion was made that he should get himself to

  24   South Africa.

  25   Q.  Was that agreed upon before the others left the country,


   1   or after?

   2   A.  I believe so.

   3   Q.  I asked you an either/or.  Was it before the other people

   4   left the country that they agreed to go to South Africa or

   5   after?

   6   A.  There was a staggering of the people.  They did not leave

   7   the same day.  At least some of them were there as they

   8   discussed the outcome of this.

   9   Q.  I ask you again, was it your understanding whether or not

  10   there was a plan for Khalfan Mohamed to go to South Africa

  11   before the other people, the other people involved in the bomb

  12   plan except the person who killed himself, left Tanzania?

  13   A.  Plan seems to me a bit more intense than it was.  He was

  14   told to get himself there.

  15   Q.  Khalfan Mohamed was told to get himself where?

  16   A.  I believe it was Hussein who was running things who had

  17   suggested that he needed to get away after cleaning up things.

  18   Q.  My question to you then is, who told him, whose idea was

  19   it to go to South Africa as a place in particular?

  20            MR. STERN:  Objection.  He can't know that.

  21            THE COURT:  Overruled.

  22   Q.  Do you know whose idea it was for Khalfan Mohamed to go to

  23   South Africa?

  24   A.  Whose idea it was?  No, I don't know that.

  25   Q.  Do you know if Hussein told Khalfan Mohamed to go to South


   1   Africa --

   2   A.  I don't feel confident about the answer but that's my

   3   impression.  I am not sure.

   4   Q.  Your impression is what?

   5   A.  That it was Hussein, but I am not positive about that.

   6   Q.  By the way, when you interviewed Khalfan Mohamed and

   7   Mohamed Odeh, did either of them indicate to you that they had

   8   met before in Somalia in 1997?

   9   A.  Yes.  I indicated in my earlier testimony that's where --

  10   that it was through Farhi in Mombasa that he first came into

  11   contact with Hussein.

  12   Q.  My question was not about Hussein.  I am asking you about

  13   Mohamed Odeh.  I will do it in two parts.

  14   A.  I am sorry.  I misunderstood your question.  I apologize.

  15   Q.  In your interview with Mr. Odeh, did Mr. Odeh tell you

  16   whether or not before the bombing he had met Khalfan Mohamed

  17   in either Somalia or in Kenya?

  18   A.  I believe, and I am not positive of this, that it was on

  19   the second trip to Somalia that he had met him.  But I may be

  20   confused about that.

  21   Q.  So is it your understanding that Odeh and Khalfan Mohamed

  22   knew each other a year before the bombing; correct?

  23   A.  Not knew each other, no.

  24   Q.  They had met each other?

  25   A.  I believe so, but I am not positive about that.


   1   Q.  In your preparation did you review any interviews of

   2   Mohamed Odeh conducted in Pakistan?

   3   A.  No.

   4   Q.  Are you aware whether or not Mohamed Odeh told officials

   5   in Pakistan after the bombing, before coming to Nairobi, that

   6   it was Khalfan who insisted that he go to South Africa?

   7   A.  I am sorry.  That it was Khalfan Mohamed?

   8   Q.  Yes.

   9   A.  That may well be.

  10   Q.  That is not a subject that you explored with Khalfan

  11   Mohamed during your interviews, correct?

  12   A.  No, I was really mainly trying to understand the lead-up

  13   to the bombing, not the aftermath.

  14   Q.  If the plan to go to South Africa was before the bombing,

  15   that would be part of the lead-up, correct?

  16   A.  Well, that's true.

  17   Q.  Sir, during your interview with Mr. Khalfan Mohamed, is it

  18   fair to say that at at least several points to you Khalfan

  19   Mohamed denied knowing about the bombing of the American

  20   Embassy in advance?

  21   A.  Yes.

  22   Q.  Would you agree with me that remorse is admitting what you

  23   did and then saying that it's wrong?

  24   A.  To be sure.

  25            MR. FITZGERALD:  Nothing further.


   1            THE WITNESS:  May I clarify it further?

   2            THE COURT:  No.  Your counsel for K.K. Mohamed may

   3   ask you further questions if he wishes.


   5   BY MR. STERN:

   6   Q.  Dr. Post, when you first met Mr. Mohamed, he knew you had

   7   worked with the CIA, didn't he?

   8   A.  Right.

   9   Q.  And he was very suspicious of your reasons for being

  10   there, correct?

  11   A.  Yes, he was rather apprehensive, and part of the reason I

  12   kept coming back for further interviews, there was a gradual

  13   establishment of some confidence and a waning away of the

  14   distrust that went further.  In fact, I confronted him,

  15   because I had read and accepted as true the FBI report entry

  16   that he had acknowledged participating in this, why had he

  17   said to me -- why had he not said to me where it was, and he

  18   kind of fenced around it first, and then finally did indicate

  19   that he knew.

  20   Q.  As a psychiatric professional, is it unusual for someone

  21   to take time to establish a relationship with you?

  22   A.  It would be unusual to not take time to establish a

  23   relationship.

  24   Q.  Did you reach a point at which he had established what you

  25   consider a trusting relationship?


   1   A.  Trusting is still probably a bit large a word, but

   2   certainly a much more comfortable relationship where he was

   3   more candid.

   4   Q.  At that point did he acknowledge his knowledge of the

   5   bombing?

   6   A.  At that point he acknowledged his knowledge of the

   7   bombing.

   8   Q.  At that point did he also talk about his feelings of

   9   remorse?

  10   A.  That was when the tears came to his eyes.  That was when

  11   he indicated he had not really contemplated what he was doing,

  12   a jihad job, had somehow not contemplated or asked questions

  13   about what would be the consequences, and was really fairly

  14   devastated about that.

  15            (Continued on next page)












   1            MR. STERN:  Thank you.



   4   Q.  Sir, let's make this clear.  If you look at the Exhibit

   5   4323 in front of you --

   6            JUROR:  We need a break, please.

   7            THE COURT:  OK, we will take a break.

   8            We will take a five-minute recess.

   9            (Jury excused)

  10            (Recess)

  11            MR. RUHNKE:  Your Honor, what we are going to do now

  12   is play a video for the jury of the following.  It is the -- I

  13   am sorry, when the witness is done.

  14            THE COURT:  Yes.

  15            MR. RUHNKE:  I will tell you when the witness is

  16   done, but basically it is the route from 213 Ilala to the

  17   former American Embassy.

  18            THE COURT:  This is a video taken in a vehicle that

  19   was going along that route?  Is that what it is?

  20            MR. RUHNKE:  Yes, sir, it is a realtime video of that

  21   trip.

  22            THE COURT:  Any objection?

  23            MR. FITZGERALD:  No.

  24            (Pause)

  25            THE COURT:  We may be a few more minutes, so just


   1   relax.

   2            (Pause)

   3            (Jury present)

   4            THE COURT:  You may proceed.

   5            MR. FITZGERALD:  Thank you, Judge.


   7   Q.  Dr. Post, if you could look at Government's Exhibit 4323,

   8   which should be one of the sets of notes, I believe, in front

   9   of you.

  10   A.  Yes.

  11   Q.  You have it open, right?  Let me see if we can make

  12   something clear.  Would you turn to page 2 of those notes.  Is

  13   it fair to say that your notes indicate that when you

  14   interviewed Khalfan Mohamed, that he indicated to you as

  15   follows:  When TNT into the house, knew for bomb, thought for

  16   Somalia.  Then he helped people making a bomb.  Main person

  17   grind Abdul Rahman.  Helped get soft drink.  Denies FBI

  18   report.  Maybe did once, not clear, but certainly not the main

  19   person, only one grinder.  Then an illegible word there.  He

  20   not.  Never talked once about Americans.  He had asked the

  21   questions.  Rebut.  Illegible.  Help.  No bomb being built,

  22   but something Somalia.  When found out the embassy the target,

  23   after the embassy bombing.  Not known.  I note FBI report, he

  24   denies.  Says didn't say.  He does not know what said to FBI,

  25   but knows he did not know U.S. Embassy the target.


   1            Is that a fair summary what the notes indicate?

   2   A.  This would be my second interview with him, and what isn't

   3   inserted there is my question, which led to him --

   4   Q.  Would you answer my question.  Is that a fair summary of

   5   what is your notes?  Yes or no.

   6   A.  That is a fair summary of what is in my notes.

   7   Q.  Did you tell the jury in your testimony about the Fanta

   8   soft drink, about the rebuttal, and leave out the fact that

   9   Khalfan Mohamed told you a month ago in 2001 that he denied

  10   that he knew that the U.S. Embassy was a target in advance?

  11   Yes or no.

  12   A.  I am sorry.  Repeat the question.

  13   Q.  Did you tell the jury about the Fanta soft drink in your

  14   direct testimony?  Yes or no.

  15   A.  Yes.

  16   Q.  Did you tell the jury in your direct testimony that

  17   Khalfan Mohamed told you in the last five weeks that he denied

  18   knowing the American Embassy was a target before the bombing?

  19   Yes or no.

  20   A.  Yes, but it was a sequence here.

  21   Q.  Did you tell the jury --

  22   A.  The answer is yes and no.

  23   Q.  Can you tell us --

  24   A.  He first told me -- can I clarify it or no?

  25   Q.  I am asking you what you told the jury in your direct


   1   testimony this morning and before I asked questions.  Did you

   2   tell the jury when you testified on direct examination that

   3   Khalfan Mohamed had denied the FBI report and said he did not

   4   know the American Embassy was a target?  Did you tell the jury

   5   that or not, sir?  Yes or no.

   6   A.  No.

   7   Q.  If we continue on in the next page of your notes --

   8   A.  I don't think my answer is very responsive to your

   9   question, though.

  10            THE COURT:  Counsel will have an opportunity, if they

  11   wish, to give you an opportunity to elaborate.

  12   Q.  If you could move ahead to what we believe is the eighth

  13   page of those same notes, in your handwritten version --

  14   typewritten page 7 of your notes indicate in your interview

  15   with Khalfan Mohamed it was indicated in substance no bomb

  16   being built --

  17   A.  That's knew, he knew a bomb was being built.

  18   Q.  Thank you.  Knew bomb being built but no idea where would

  19   be used, against, when.  If knew details he would have tried

  20   to stop.  Now unintelligible he now he, word may be

  21   rationalized, or he was doing, what told to do to help jihad.

  22   A.  If you would like me to clarify what is unintelligible

  23   there, it says he would have tried to stop, maybe he would

  24   have told, but he rationalized he was doing what he was told

  25   to do to help jihad.


   1   Q.  Then it says he felt very sad when saw pictures of the

   2   embassy.  If asked, but if jihad something building bombings,

   3   that would be a terrible thing to do.

   4            You did indicate to the jury, did you not, that he

   5   felt very sad when he saw pictures of the embassy?  Yes or no.

   6   A.  Yes.

   7   Q.  You did not tell them, indicate the statement that he did

   8   not know it would be used against the embassy, correct?

   9   A.  I don't know.

  10   Q.  Page 9, 4323A, page 4 of T, your notes indicate that

  11   Khalfan told you in an interview within the last five weeks

  12   that then Rahman had also left, just he and Ahmed, still no

  13   target, before he left Hussein said to KK you have to leave

  14   soon.  He said Ahmed could not stay by self, stay with Ahmed

  15   when he left by truck, then leave.  He received traveling

  16   money, phone number.  Then Ahmed left house on Friday.  He

  17   pressed for time.  Still did not know where he was going.

  18   After he heard about the explosion said, quote, maybe

  19   something I was doing was helping, close quote.  Didn't feel

  20   good.  Not proud, when heard also Kenya.  Then it says in

  21   margin, jihad mean financial, open school, he felt same thing,

  22   same day.  Then continues, explain help, help jihad, help

  23   Muslim people in the jihad.

  24            Is that what your notes fairly indicate?

  25   A.  Yes, it is.


   1   Q.  And you told the jury on direct examination that in

   2   expressing remorse to you, Khalfan Mohamed told you that he

   3   wanted to help people in jihad, correct, in a nonviolent jihad

   4   effort, correct?

   5   A.  Yes.

   6   Q.  And you never told the jury when you interviewed him he

   7   was telling you that he didn't know about the bombing, maybe

   8   afterward figured out that he had something to do with it; is

   9   that correct?

  10   A.  I tried to say several --

  11   Q.  Can you answer yes or no.

  12   A.  I cannot answer that fairly yes or no without misinforming

  13   the jury.

  14            THE COURT:  The jury has heard the witness's

  15   testimony and the jury knows what he did say before and did

  16   not say before.  Ask another question.

  17            MR. FITZGERALD:  Fair enough.  I have nothing

  18   further.

  19            THE COURT:  Any redirect?


  21   BY MR. STERN:

  22   Q.  Dr. Post, you were aware, were you not, that all these

  23   notes were going to be turned over to the U.S. Attorney, were

  24   you not?

  25   A.  Yes.


   1   Q.  The point of your notes where you say -- let me find it

   2   for one second -- it says no, N, should be knew bomb being

   3   built but no idea where would be used, against, when.

   4   A.  Right.

   5   Q.  Were there points even at the end where he told you from

   6   the beginning I didn't know where it would be used against?

   7   A.  I indicated where it was twice he had been to Somalia and

   8   he had met Hussein twice in Somalia, that he assumed the bomb

   9   would be in Somalia.  There was a point in his testimony that

  10   was quite confusing.  The first interview I took a straight

  11   history from him without confronting him with contradictions

  12   with the FBI report.  Then he said he knew nothing about the

  13   bomb.  The interview where I asked questions, the second

  14   interview, where I confronted him with the FBI report, etc.,

  15   etc., that's when he protested and said well, I don't know

  16   what I said to the FBI, but whatever I said to the FBI, and he

  17   spoke about his language problems and this and that.  But he

  18   did protest at that point that what I am telling you now is

  19   true.  He then went on, and when I came to understand --

  20   because I made this a matter of some pressure.  I had no

  21   reason to not believe the FBI statement as given, and it was

  22   in the final interview that he indicated to me that it was

  23   only at the last gasp when he was left with the driver that he

  24   found out where the target was.

  25   Q.  By the time of your last interview, did you feel like you


   1   had reached the point where he was telling you the truth?

   2   A.  I did, but it was quite gradual in some of these remarks,

   3   early on in the first two.  So the remarks where I was just

   4   asked questions, the literal answer, yes, I said that, and

   5   yes, he said that, is certainly true, but that was part of an

   6   evolution of what he had communicated to me, which had shifted

   7   over time.

   8            (Continued on next page)



















   1            MR. STERN:  Thank you.

   2            MR. FITZGERALD:  Nothing further.

   3            THE COURT:  Thank you.  Thank you, Doctor.

   4            (Witness excused)

   5            MR. RUHNKE:  Your Honor, we would now like to play

   6   for the jury a videotape marked -- I don't have it in front of

   7   me -- KKMVT1.  Just by introduction, the video shows the route

   8   from the house at 213 Ilala to the former American Embassy on

   9   Uhuru Road in Dar es Salaam.  It was taken this spring.  By

  10   way of introduction and agreement with the government the

  11   statement in evidence of Khalfan Mohamed is that he got off

  12   the truck when it turned on to Uhuru Road.  That will be clear

  13   on the video itself.

  14            THE COURT:  Is that a narration of the video?

  15            MR. RUHNKE:  Yes, there is, a narration and subtitled

  16   directions.

  17            THE COURT:  Very well.  It may be played.  What is

  18   the exhibit number?

  19            MR. RUHNKE:  KKMVT1.

  20            (Defendant's Exhibit KKMVT1 received in evidence)

  21            (Videotape played)

  22            THE COURT:  Next?

  23            MR. RUHNKE:  Your Honor, the final order of business

  24   for this afternoon is to read into evidence a document marked

  25   Defense Exhibit KKM1, which is the guilty plea, the transcript


   1   of the guilty plea of Ali Mohamed entered on October 20, 2000.

   2   The way we are going to set this up is, we are going to begin

   3   on page 11 of the transcript.  We will be deputy clerk

   4   announcing the counts on how Mr. Mohamed wishes to plead.

   5   Mr. Stern is going to be reading the parts of the deputy clerk

   6   and the prosecutor.  The names of the actual prosecutors have

   7   been deleted from the transcript.  I will be reading the part

   8   of Ali Mohamed.  A first year law student in my office, Chad

   9   Yablonsky, will be reading the part of the judge.  We would

  10   like to begin that reading now.

  11            Your Honor, we offer KKM1 into evidence.

  12            THE COURT:  Received.

  13            MR. FITZGERALD:  No objection.

  14            (Defense Exhibit KKM1 received in evidence)

  15            (Defense Exhibit KKM1 read)

  16            MR. RUHNKE:  That is as far as we are going to read

  17   the plea.

  18            Your Honor, we would ask that we break for the day.

  19            THE COURT:  Yes, all right.  We will call it a day,

  20   ladies and gentlemen, and we will adjourn until tomorrow

  21   morning.

  22            (Jury excused)

  23            THE COURT:  Mr. Stern, am I correct that the agenda

  24   for tomorrow are some members of the defendant's family and

  25   Miller?


   1            MR. STERN:  We are also going to call one witness

   2   from South Africa and produce a tape and attempt to call

   3   Dr. Patel, who is an Islamicist.

   4            THE COURT:  Is it still your contemplation that you

   5   will be able to rest tomorrow?

   6            MR. STERN:  That is still our contemplation.  Unless

   7   the government has a surprising amount of cross-examination --

   8   surprising to me, not to them -- then I would expect we will

   9   rest tomorrow.

  10            THE COURT:  Anything before adjourn?

  11            MR. GARCIA:  I have a tape, Government's Exhibit 5.

  12   It is a tape of interviews from South Africa previously

  13   provided to the government.  There are four adult witnesses

  14   interviewed here who are asked if they could say anything to

  15   the jury in deciding whether or not to execute the defendant

  16   what would they say, and the answer involves a personal view

  17   whether or not this particular defendant should receive the

  18   death penalty.  The government would object to that question

  19   and that answer.

  20            MR. RUHNKE:  We don't expect to elicit that type of

  21   opinion testimony, your Honor.

  22            MR. GARCIA:  It is on the tape.

  23            MR. STERN:  I think the questions that are asked are

  24   if there was something that would help the jury make the

  25   decision what would they say, and I don't think the answers


   1   reflect their view of whether or not in this case it is fair,

   2   but reasoned things they want to tell this jury about the

   3   defendant to help them make the decision.  They are obviously

   4   good things, but it is information about why they should not

   5   kill him, not their view of the death penalty.

   6            MR. GARCIA:  They say things like he doesn't deserve

   7   to be executed, he doesn't deserve to die, he was in the wrong

   8   place at the wrong time, please don't execute him, which is

   9   really the issue.

  10            THE COURT:  Yes.  I did think we had resolved that,

  11   and we had resolved it by a determination that witnesses would

  12   not be allowed to express a personal view as to whether or not

  13   the defendant should be executed.  Otherwise, it is open to

  14   the government to recall its victim witnesses, who I would

  15   presume have returned to Tanzania, to express contrary views

  16   if they hold them.  I am surprised to hear that this issue is

  17   still with us.

  18            MR. STERN:  Judge, if it is all right, I will look at

  19   it with Mr. Garcia and we will see if we agree that is what

  20   those answers are.  If they are, we will take them out or play

  21   them in a way that they won't be heard.

  22            THE COURT:  All right, and we will get together at

  23   quarter after 9 tomorrow to resolve any disputes on that

  24   issue.

  25            Does the government at this point know whether it


   1   contemplates a rebuttal case?

   2            MR. FITZGERALD:  I think we do contemplate a rebuttal

   3   case, but the length of it is too soon to guess.

   4            THE COURT:  Very well.  We have a charging conference

   5   at 4:30 tomorrow, and I would like in writing any requests to

   6   charge on behalf of the defendant.  I know we are all working

   7   under a heavy burden, but so it is.

   8            MR. RUHNKE:  Unfortunately, you had given me till

   9   tomorrow afternoon to get those to you and I had factored that

  10   in.

  11            THE COURT:  Within a reasonable time prior.

  12            MR. RUHNKE:  That is fine.

  13            MR. FITZGERALD:  The only other item, if the family

  14   members are going to testify tomorrow, they should be given

  15   the same rules with respect to giving their opinion as to the

  16   penalty but only as to the person.  If defense counsel are

  17   preparing witnesses, they should bear that in mind.

  18            MR. RUHNKE:  We do not intend to elicit evidence as

  19   to what their opinion is of the death penalty or whether the

  20   defendant should be executed or not.

  21            THE COURT:  So there is no ambiguity concerning the

  22   subject matter of our Monday morning conference with respect

  23   to the opening statement, I take it that in its closing

  24   argument the government is not going to make any statement

  25   which would suggest a belief that the victims are of the


   1   opinion that justice requires the death sentence.  Is that

   2   clear?

   3            MR. FITZGERALD:  That is clear, Judge.

   4            THE COURT:  We are adjourned then until 9:15 tomorrow

   5   morning.

   6            MR. FITZGERALD:  My only request is that the family

   7   be advised that they are not supposed to volunteer --

   8            THE COURT:  Yes, I understood that.  Mr. Stern, Mr.

   9   Ruhnke, you understood that.

  10            MR. STERN:  We understood that, yes.

  11            (Proceedings adjourned until 9:15 a.m., Thursday,

  12   June 28, 2001)
















   2                        INDEX OF EXAMINATION

   3   Witness                    D      X      RD     RX

   4   CHARLES D. ADLER........8279   8302

   5   JASON RANDAZZO..........8306   8308    8309

   6   Dr. JERROLD POST........8311   8338    8352    8354

   7                                          8359


   9                        GOVERNMENT EXHIBITS

  10   Exhibit No.                                     Received

  11    4321 .......................................8278



  14                         DEFENDANT EXHIBITS

  15   Exhibit No.                                     Received

  16    KKM8B ......................................8301

  17    KKM1 .......................................8363









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