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

This is a transcript of the sentencing hearing of 18 October 2001.

A transcript of a pre-sentencing hearing on 17 October 2001 has not been received from the Court Reporter.

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                                           October 18, 2001
                                               9:50 a.m.


  12   Before:

  13                       HON. LEONARD B. SAND,

  14                                           District Judge












                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1                            APPEARANCES

            United States Attorney for the
   3        Southern District of New York
   4        KENNETH KARAS
            PAUL BUTLER
   5        JOHN M. McENANY
            Assistant United States Attorneys

   9        Attorneys for defendant Wadih El Hage

  12        Attorneys for defendant Mohamed Sadeek Odeh

  14        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

  16        Attorneys for defendant Khalfan Khamis Mohamed










                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            (Pages 81 to 83 filed under seal)

   2            (In open court)

   3            DEPUTY CLERK:  United States of America v. Khalfan

   4   Khamis Mohamed, Mohamed Rashed Daoud Al-'Owhali, Wadih El Hage

   5   and Mohamed Sadeek Odeh.

   6            Is the government ready?

   7            MR. KARAS:  Yes, the government is ready.  Good

   8   morning, your Honor.

   9            DEPUTY CLERK:  Ready for defendant Khalfan Khamis

  10   Mohamed?

  11            MR. RUHNKE:  Ready.

  12            DEPUTY CLERK:  For defendant Al-'Owhali, ready?

  13            MR. COHN:  Ready.

  14            DEPUTY CLERK:  For defendant El Hage?

  15            MR. SCHMIDT:  Ready.

  16            DEPUTY CLERK:  For defendant Mohamed Odeh?

  17            MR. RICCO:  Yes, your Honor.

  18            THE COURT:  I understand that there are some victim

  19   witnesses who wish to be heard at this sentencing proceeding

  20   and we will hear from them.  I understand the first is Susan

  21   Hirsch.

  22            Ms. Hirsch, you wish to make a statement?

  23            MS. HIRSCH:  Yes, thank you.

  24            THE COURT:  You may proceed and do that.

  25            MS. HIRSCH:  Thank you.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            Thank you for the opportunity, Judge Sand, to appear

   2   before you to tell you about the impact of these terrible

   3   crimes on me and on those around me.

   4            Up to now, because this was a capital case, my

   5   ethical beliefs precluded me from telling my story to the

   6   court.  So now I appreciate the chance to let you know about

   7   my loss, my grief, and the devastating impact on my life as a

   8   result of the actions of those convicted and of others not

   9   present today.

  10            On a beautiful sunny morning, just ten days shy of

  11   coming with my husband to the U.S. to start a new life here

  12   together, I was in the embassy in Dar es Salaam when the bomb

  13   exploded.  I was near a back exit.  I went downstairs and out

  14   and ran away from the building.  I was not physically injured.

  15            And then, as I realized where the bomb went off, my

  16   nightmare started.  My husband, Abdurahman Abdulla, a Kenyan

  17   citizen, had been standing very close to the explosion, and

  18   eventually, after frantic searching through hospitals, I

  19   learned that he was killed.

  20            I want to tell you a few things about my husband so

  21   you will understand the impact of his loss on me and on others

  22   who loved him and depended on him.  He was well-known in

  23   Mombasa, Kenya and in Malindi, where he lived.  His nickname

  24   was Jamal, which means beautiful.

  25            Jamal had an amazing spirit and energy.  He was known

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   for his humor, his humility, and his patience.  Jamal was a

   2   deeply religious Muslim, in the most admirable sense.  His

   3   life was guided by the ideals of kindness, charity, faith,

   4   mercy and respect for life.

   5            Jamal's death has been a terrible tragedy for his

   6   family and community.  Permit me to speak on their behalf

   7   briefly, because they are in Kenya and are unable to be here.

   8            The youngest of nine siblings, at 38, Jamal was the

   9   leader of the family.  He was the motivator, the shoulder on

  10   which his elder siblings leaned.  He was single-handedly

  11   holding the family above poverty, and with his death, the

  12   family is in very difficult circumstances.

  13            Jamal was a loving father to three sons, Ali, Mohamed

  14   and Ichbal.  The loss of his guidance is especially difficult

  15   for them.

  16            In his community, Jamal was known as someone who

  17   could solve problems and heal troubles.  Everyone treated

  18   Jamal as wise beyond his years.  Since his death, so many

  19   people that he used to treat come to his family and to me to

  20   say that there is no one to help with marital problems, mental

  21   illness and spiritual confusion.  Having lost a trusted

  22   counselor, his community is tremendously diminished by these

  23   crimes, and my American family, who had grown to love Jamal,

  24   was crushed by his death.

  25            Let me mention something else that was lost with

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Jamal's death.  Our relationship crossed continents, cultures,

   2   religions and languages.  We shared a deep commitment to

   3   bridging differences and to making productive connections

   4   between our families and communities.  We started charitable

   5   projects that drew on the generosities of Americans and

   6   inspired the hopes of Kenyans.  By shadowing our efforts and

   7   efforts like ours to foster understanding, these acts of

   8   violence have promoted a terribly dangerous and distorted view

   9   of Islam.

  10            I want to say a few things about the impact on me

  11   personally.  Like other bomb victims, I have traumatic stress

  12   syndrome, which means that I cannot depend on myself in

  13   situations of shock or stress, even like this one today.  That

  14   is not the person I used to be.

  15            I have financial difficulties, as I try to help my

  16   husband's family, particularly his sons, whom I am determined

  17   will receive good educations.

  18            I choose not to share with you now and with the

  19   public what it means to me emotionally to have lost my

  20   husband.  The pain and emptiness that I feel is both deeply

  21   private and truly indescribable.  But also I need not tell

  22   you, because I have come to believe that there is nothing that

  23   you, as the judge, or the state could do to these individuals

  24   that would sooth the sorrow that haunts me, having lost Jamal.

  25            As a grieving widow, I look elsewhere for my solace,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   but as a citizen, I look to you and the state for justice.

   2   The impact of this crime on me will be lessened if I know that

   3   these individuals will be prevented from injuring others and

   4   will lose their liberty as an appropriate punishment for an

   5   appalling and devastating crime.

   6            Thank you for this opportunity.

   7            THE COURT:  Thank you ma'am.  I'm sorry.

   8            Howard Kavaler.

   9            MR. KAVALER:  Your Honor, three years, two months and

  10   eleven days ago, I lost my wife Prabhi, the love of my life

  11   and mother of my daughters, in the despicable attack on our

  12   embassy in Nairobi.  For the past three years, two months and

  13   eleven days, I have had to live with recurring flashbacks of

  14   the bombing and my vain attempts to locate my wife's remains.

  15   The clouds of dust, the dangling wires, the invisible cries

  16   for help that were muffled by mounds of concrete and twisted

  17   steel are still front and center in my mind with a degree of

  18   clarity that has not attenuated with the passage of time.  In

  19   fact, the carnage of the 11th of September has only served to

  20   exacerbate these nightmarish memories.

  21            It is very difficult for me to articulate in a

  22   dispassionate manner what it has been like to be deprived of

  23   the companionship of my wife of 16 years and to raise two

  24   young girls as a single father in the context of such a

  25   horrific tragedy.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            There was no one to assist me as I comforted Maya, my

   2   eight-year-old daughter, who cried all night last spring

   3   because her mother would not be present the next day to hear

   4   her sing at a school talent show.  Tara, my 13-year-old, went

   5   to her first coed party without the loving encouragement and

   6   maternal advice that only Prabhi could have provided.  In a

   7   letter to your Honor, you may recall that Tara wrote about her

   8   mother, and I quote:  "I miss the time we spent together, I

   9   miss that she loved me like no one else could, and I miss her

  10   helping me with things that were hard.  My heart hurts every

  11   day.  I hope it will go away.  A kid's heart shouldn't hurt

  12   every day.  A kid shouldn't have to miss her mother every

  13   day."

  14            As much as I try to be both a father and a mother, I

  15   will always, no matter how hard I try, come out more than a

  16   tad bit short in fulfilling the latter role.  In fact,

  17   balancing the demands of working full-time as a Foreign

  18   Service Officer with the needs of my daughters became too

  19   overwhelming.  In August, I retired from the Foreign Service,

  20   having decided to dedicate myself solely to ensuring my girls'

  21   welfare and happiness.

  22            While the jury has spoken, albeit in a manner with

  23   which I respectfully disagree, as to the applicability of the

  24   death penalty, I urge your Honor to sentence the four

  25   convicted defendants to the maximum penalty now permitted by

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   law -- that is, life imprisonment without the possibility of

   2   their ever being paroled.  In so sentencing the four

   3   defendants, you would, in these troubling days, convey an

   4   unambiguous message to all future terrorists intent on

   5   destroying the lives of innocent Americans.

   6            Incarcerating Wadih El Hage for life would also send

   7   a clarion signal to other would-be American citizens intent on

   8   betraying their country.  As a naturalized American citizen,

   9   we welcomed him into our body politic.  He, however,

  10   reciprocated this embrace with a loathsome act of treachery.

  11   As a traitor, he showed no mercy and, as such, is owed none in

  12   return.

  13            I would also implore your Honor, if possible, to

  14   instruct the Bureau of Prisons to incarcerate the four under

  15   the most rigorous conditions allowed by statute and

  16   regulation.  Justice, and our nation's security, would truly

  17   be served were these perfidious apostates directed to spend

  18   the rest of their natural lives in isolation reflecting upon

  19   the diabolical nature of their conduct.

  20            Let them wake up every morning knowing that humanity

  21   is united in viewing them as cowardly infidels who are

  22   despised by all and respected by none.  Let them sleep at

  23   night knowing that their atrocities only served to blaspheme a

  24   faith in whose name they acted but whose truthful followers

  25   espouse a world of tolerance.  As the years pass and as their

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   minds and bodies rot in prison, let them come to the

   2   realization that men and woman of good will and virtue will

   3   always triumph over the moral depravity and pure evil

   4   represented by Bin Laden and his fellow pariahs.  Finally, let

   5   them die conscious of the fact that their souls will be

   6   condemned forever.

   7            In conclusion, your Honor, I speak for myself and my

   8   daughters in thanking you for affording me an opportunity to

   9   address the Court today.  I will return home this evening with

  10   the peace of mind that comes from witnessing the majesty of

  11   justice reigning supreme.  For this, my girls and I are

  12   eternally grateful.

  13            Thank you.

  14            THE COURT:  Mr. Owens.

  15            MR. OWENS:  I thank the Court for the opportunity to

  16   express my views as to the sentence to be imposed upon the

  17   defendants who stand convicted of terrorism in the attacks

  18   upon the American embassies in Nairobi and Dar es Salaam.  I

  19   believe that the privilege to address the Court implies a duty

  20   to accurately set forth not only my views but, to the extent

  21   possible, the views of the many fellow victims of these acts

  22   of terrorism who cannot be here today.

  23            One of the defendants in this case, Ali Mohamed,

  24   described the organizational background which permitted these

  25   attacks to go forward in his plea hearing before this Court on

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   October 20th, 2000.  Mr. Mohamed set up a meeting between Bin

   2   Laden and the chief of Hezbollah, at which it was agreed that

   3   Hezbollah would provide explosives training.  Sworn testimony

   4   last summer in the United States District Court for the

   5   District of Columbia indicated that much of this type of

   6   training is actually carried out at a training camp there Iran

   7   run by the Iranian Ministry of Information and Security.

   8            At that plea hearing before this Court, Mr. Mohamed

   9   testified that Iran provided the explosives for the bombings

  10   which have brought us here today.  Within the last week, the

  11   chief of Hezbollah was placed by the Federal Bureau of

  12   Investigation on the list of 22 persons designated as

  13   terrorists leaders wanted by the FBI.  He has been widely

  14   reported to currently be a guest of the Iranian government.

  15            The annual report Patterns of Global Terrorism

  16   published by the Department of State only six months ago once

  17   more noted that Iran is "the most active sponsor of terrorism"

  18   in the world.  That report and prior annual reports detail

  19   terrorists actions undertaken by the order of Iran or with its

  20   support prior to September 11th, 2001 in which more than 1500

  21   Americans have lost their lives.

  22            With this history of terrorism on the part of Iran, I

  23   and many other victims of their criminal actions were confused

  24   by the appearance of the United States Department of Justice

  25   on behalf of Iran two days ago in the United States District

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Court in Washington requesting that the Court vacate a

   2   judgment entered against Iran on behalf of the 52 Americans

   3   held captive by Iran.  We only have to walk a few blocks from

   4   this courthouse to know that prosecution against individuals,

   5   without action against the supporting governments, has not

   6   deterred new terrorists acts.  To the contrary, it has invited

   7   them.

   8            Notwithstanding, I urge that this Court impose the

   9   maximum sentence upon each of these defendants.  I make this

  10   request of the Court for two reasons.  The first is that I

  11   believe that sooner or later our country must confront

  12   religious radicalism as a genuine threat to the principles of

  13   religious tolerance and peaceful resolution of conflicts,

  14   which must be embraced by all nations if we are to have peace.

  15   When that time comes, the sentencings imposed by the Court in

  16   this case might very well be the tool which will bring forth

  17   testimony from these very same defendants which will spread in

  18   detail the truth about these terrorist actions on the public

  19   record.

  20            My second reason for urging that the Court take this

  21   action has to do with my own unique relationship with the

  22   people of Tanzania.  I have over many years spoken about these

  23   wonderful people and their way of life.  I note that no

  24   American died in the attack at Dar es Salaam, primarily

  25   because Tanzanian citizens employed in security at the embassy

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   carried out their jobs effectively and with great courage in

   2   stopping the truck which carried the bomb and preventing entry

   3   of the truck into the area immediately adjacent to the embassy

   4   building.

   5            It is in no way an exaggeration to say that I am here

   6   to speak today because of their courage.  I am not a lawyer,

   7   but I have been told that this Court does not have the

   8   jurisdiction over the murders of these men, as they are not

   9   American citizens.  However, it is my understanding that the

  10   Court may take into consideration in imposing sentence the

  11   surrounding circumstances of the offense.  I would therefore

  12   ask the Court to consider that not only America and Americans

  13   were attacked at Dar es Salaam, but also Tanzania and citizens

  14   of Tanzania who suffered terrible casualties.

  15            I believe that the horror of what was done to them

  16   alone would afford a sufficient basis for this Court imposing

  17   the maximum sentence on each defendant.  Such an action by

  18   this Court will demonstrate to people around the world our

  19   concern not just for ourselves but for every victim of

  20   international terrorism.

  21            THE COURT:  Thank you, Mr. Owns.

  22            MR. OWENS:  Thank you.

  23            THE COURT:  Mr. Pressley.

  24            MR. PRESSLEY:  Thank you, your Honor.  I came here to

  25   let you know that I was injured in the bombing in Nairobi.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Injuries I suffered there, I guess if you compare the people

   2   that were killed, are small, but these three years have been

   3   nothing but hell.

   4            I have had seven operations on my shoulder.  I have

   5   had metal placed, replaced.  I have a serious infection that I

   6   take antibiotics for every day.  I take pain killers.  I have

   7   had 28 teeth basically crushed.  I have had four operations in

   8   my jaw, tongue, my neck.  I have had tremendous nightmares for

   9   several years.

  10            My wife also worked in the embassy.  She was not

  11   hurt, thank God, and was pregnant.  She came out of the

  12   embassy and saw me and in a most unbelievable condition.

  13   These three years for both of us have been nothing but a long

  14   nightmare.

  15            These people deserve to be put away forever.  They

  16   never need to see a sunrise, a sunset.  They should never be

  17   allowed to touch another living human being.  They should

  18   never be able to hold their wives, their relatives, their

  19   friends.  They should realize what they have done.  Possibly

  20   they never will.  But if they are ever set free again, in my

  21   opinion, it will only go back to these ways of trying to hurt

  22   innocent people.

  23            Our culture is based on laws.  I'm not sure sometime

  24   the laws are always correct.  That's why we have courts,

  25   that's why we have a system to go through.  This was wrong.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Many of my friends in Kenya, many of my American colleagues

   2   working, we have no political values, we have no religion that

   3   hates Islam.  We do not hate anyone.  We're living every day

   4   in society, trying to make a living, to be with our families

   5   and to be loved and give love in response.

   6            These three years, we have no chance for that.  One

   7   hospital after another, one doctor's office after another.

   8   Another four hours' medication, another doctor, another

   9   operation, another nightmare, another September 11.  We have

  10   not been able to handle it very well.  Yes, during the day we

  11   smile, we put on a good face, and then we go home and cry.

  12            This is not the way it's supposed to be.  These

  13   people will kill for no reason.  These people need to be put

  14   away forever.  And I ask the Court to please consider this.

  15   The people that are dead, I'm so sad.  It makes me -- I mean,

  16   it has affected me a lot.  In the same room as me two other

  17   people were killed.  Your Honor, they weren't killed, they

  18   were ripped apart.  My body was ripped apart, but by the grace

  19   of God I could get up and get out.  Seven pints of blood.  For

  20   the first year, I was so worried about having other diseases

  21   from blood transfusions.

  22            You name it, everything in our mind has gone on.  My

  23   office tells me I should get on with my life.  Get on with my

  24   life?  I'm sorry, it's not that simple.  We don't get on with

  25   our life after something like this happens.  We hold these

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   things in and we try to seek help, but it's still there and

   2   it's going to be there forever.

   3            I have six children, and I try my best to put on a

   4   good face for them and tell them that I'm fine.  But, in fact,

   5   I'm not fine.  My wife is not fine.

   6            This is not right.  And what we're asking from you,

   7   Judge, and the court system is for justice.  We realize you

   8   can't change what happened.  We realize that if you could, you

   9   would.  But these people have to be punished.

  10            Like my colleague said, the more accurate punishment

  11   would have been the death penalty, but the good citizens of

  12   New York, for whatever reason, decided that, no, we'll do

  13   otherwise.  Okay.  Otherwise, let them rot in jail for the

  14   rest of their lives, the most severe circumstances possible.

  15   They deserve this.

  16            I ask the Court to please understand all the pain,

  17   the suffering we have gone through and will continue to go

  18   through.  Recent events have made these pains recur.  It made

  19   the wounds deeper, and every time I go into an operating room

  20   or a doctor, I think about what these people have done to

  21   myself, my wife, my children, my family, my mother, my father,

  22   all of my relatives.

  23            I didn't bring paperwork.  I have no speech.  I'm

  24   hurt, and these people hurt us and it's not right.  So I ask

  25   the Court to please, please put these people away forever.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            Thank you.

   2            THE COURT:  Thank you, Mr. Pressley.

   3            Temina Dalizu.

   4            MS. DALIZU:  Good morning, Judge Sand, and thank you

   5   for letting me express myself.

   6            I am one child of four of Jean Rose Dalizu, and I'm

   7   the baby, glad to say.  There's always a special bond between

   8   a mother and her baby.

   9            Beautiful, vibrant, patient, caring, gentle, sweet,

  10   loyal, forgiving, loving, on and on the list goes.  But how

  11   does one describe a major part of their life?  What words can

  12   I use to convey what my mother meant to me in every way?  How

  13   can I capture that essence?

  14            Do you know your mother?  Do you remember your

  15   mother?  Well, I do.  She's the one who risked her life

  16   unselfishly, bedridden with a high-risk pregnancy, determined

  17   to give life to me.  She fed me and clothed me, taught and

  18   molded me, and now she's gone.

  19            Do you remember your mother growing up?  I clearly

  20   do.  For 17 years before college, she was a bright and cheery

  21   voice that woke me from my sleep.  "Good morning, little lady.

  22   Time to get up.  Rise and shine."  To which I always growled

  23   and grumbled and turned my head the other side.  Then, with a

  24   flick of the switch, bright lights turned on, much to my

  25   horror.  Could anything be brighter than my mother at this

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   ungodly hour?

   2            She always prepared hot chocolate after a cold swim

   3   team day, special cakes and fruity shakes and little gifts

   4   galore for reasons just because.  Cuts of my favorite flowers,

   5   they are all an expression of her love.  When begging for some

   6   useless toy, she would start out strong, but easily give in to

   7   my monotone mantra of, "Please, mommy, please, mommy, please."

   8            It all wasn't peachy keen.  Do not be deceived.  I

   9   also remember hot switches on my legs when in my head

  10   rebellion struck in.  Getting into her clothes and makeup, I

  11   definitely misbehaved, and it was usually her perfume that

  12   always had me betrayed.

  13            I remember her gentle presence and her soft hands

  14   upon my head, medicine and tender kisses as I lay sick in my

  15   bed.  Now she's gone forever, removed totally from my life.

  16            Did your mother inspire you?  And did she ever guide

  17   you?  Well, this is how mine did.  Never by telling me what to

  18   do, but her living example showed me I always could.  Every

  19   genuine interest that I expressed, she cultivated.

  20            She never pushed, but steadily encouraged my hobbies,

  21   which became my dreams of zoology and then reality with a

  22   degree in marine biology and a side of compassion and empathy

  23   evident at FEMA, where I am currently employed.

  24            After my father's retirement, she became our sole

  25   wage-earner.  She planned to retire at 62, time enough to

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   build a house for two and finance me for my Ph.D., to be done

   2   in England so instead of five years, I would only have three.

   3   But on that fateful day in '98, at 60 she was murdered and

   4   this had nothing to do with fate.

   5            Now my Ph.D. plans are stalled and my father's life

   6   is empty and dull because we have both lost half of our soul.

   7   And not only must he learn to live again, but now he is forced

   8   to come out of retirement.

   9            Now that my mother has left me, who can I give a

  10   call?  For in times of trouble, I would pick up the phone and

  11   definitely give her a long-distance call.  When just hearing

  12   her voice, she began to calm the turmoil within my soul.  As I

  13   poured out my heart, she always patiently listened.  Then, as

  14   only a mother could, she began to pour out her wisdom, whether

  15   I was wrong or whether it was my friend's wrong.  As a

  16   finality, she would quote scripture to me and pray with me,

  17   and I would hang up the phone, full of peace.

  18            Now she's been ripped from my life.  Since I was

  19   five, I sat at her feet in our sanctuary known as the kitchen,

  20   where mostly I would listen, but, most importantly, I learned

  21   all her wisdom.  And somewhere in between the love and the

  22   laughter, I also picked up many a cooking lesson.

  23            Who can understand the mother/daughter bond?  And now

  24   she's snatched from me.  I'm a daughter all alone.  Who will

  25   dress me and dance for me on that wedding day?  And who will

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   guide me in pregnancy and hold my first born child?  Is that

   2   not my mother's job?

   3            She was a virtuous woman, and so will I be, for in

   4   living what she preached, she beautifully fashioned me.  Mom,

   5   I miss you more than anyone will ever know, and no amount of

   6   words or speeches will ever convey so.  When they took you, I

   7   was left with an empty space, but now the holy spirit has

   8   filled that space.

   9            She taught me life and she taught me love.  She

  10   taught me you can go on with faith in God above.  So I lean on

  11   my Lord and each day take a stronger step, for there is no

  12   greater reminder of my mother than everything that makes me

  13   myself.

  14            I am only one of the four children that my mother

  15   had.  This does not convey the loss that my father has

  16   incurred financially, emotionally and physically.  This does

  17   not convey the lives of all of her friends and the rest of her

  18   family who are suffering her loss.  And she is only one of the

  19   214 who were murdered on that day, and, Judge, I only ask that

  20   you can proceed and justice will come our way.

  21            Thank you.

  22            THE COURT:  Thank you.

  23            The Court is advised that there are six other victims

  24   present who I understand do not wish to make any statements.

  25            The Court also notes that it has received numerous

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   letters from victims, and they have been marked as Court

   2   Exhibit A of yesterday's date and have been filed.

   3            The Court will proceed with the sentencing, and we

   4   will proceed first with K.K. Mohamed.

   5            Mr. Mohamed, have you read the pre-sentence report

   6   and gone over it with your attorney?

   7            DEFENDANT MOHAMED:  Yes.

   8            THE COURT:  You nodded your head, but did you -- the

   9   court record requires something audible to occur.

  10            MR. RUHNKE:  He said "yes" very quietly, your Honor.

  11   He said "yes."

  12            THE COURT:  Okay.  Are there any errors or

  13   corrections you wish to have made in the pre-sentence report?

  14            MR. RUHNKE:  There are no errors or corrections, your

  15   Honor.

  16            THE COURT:  Mr. Ruhnke, the Court will hear you with

  17   respect to the sentence.

  18            MR. RUHNKE:  Yes, your Honor.  On Mr. Mohamed's

  19   behalf, we simply wish to express gratitude to a jury which

  20   spared his life.  He has no statement he wishes to make.  He

  21   is prepared to be sentenced.

  22            THE COURT:  Mr. Mohamed, is it the fact that you do

  23   not wish to make a statement at this time?  You understand you

  24   have the right to make a statement?

  25            THE DEFENDANT:  Yes.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            THE COURT:  This is a time not for eloquence but for

   2   justice.  Even were I tempted to engage in rhetoric, I

   3   certainly could not match the eloquence and the poignancy of

   4   the witnesses we have just heard.

   5            Mr. Mohamed, the jury has found you guilty of crimes

   6   which mandate a life sentence, and I will of course impose

   7   such sentence.

   8            A word about the jury which has unanimously and

   9   beyond a reasonable doubt found you guilty of these horrendous

  10   crimes.

  11            The jury was painstakingly selected for a period of

  12   about a month, and you could not equal the jury in terms of

  13   diversification and representation of the community.  No

  14   matter what criteria one evokes -- race, gender, ethnicity,

  15   socioeconomic status, education -- the jury was indeed a cross

  16   section of the community.

  17            Another word about the jury and the five-month trial.

  18            Everyone who has witnessed or been involved in these

  19   proceedings knows that this was a jury which did not

  20   reflexively react to the nature of this crime or the

  21   perpetrators.  This is a jury which carefully, maticulously

  22   scrutinized the evidence.  We know not only from the length of

  23   their deliberations but the questions that were asked that

  24   they performed their task conscientiously.

  25            This jury deliberated on two occasions.  On the first

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   occasion, Mr. Mohamed, had found you guilty of all crimes

   2   charged.  At the second trial with respect to penalty, this

   3   jury reported that:  "We are unable to reach a unanimous

   4   verdict either in favor of a life sentence or in favor of

   5   death sentence for any of the capital counts.  We understand

   6   the consequence of this is that Khalfan Khamis Mohamed will be

   7   sentenced to life without the possibility of release."

   8            And we know, to an unusual extent, the reasoning of

   9   the jury because they answered certain interrogatories.  Three

  10   of the jurors believed that life imprisonment is a harsher

  11   punishment than being put to death.  And if in fact that is

  12   true, it is appropriate.

  13            It is the judgment of this Court that you be

  14   sentenced to a term of life imprisonment on Counts 4, 8 and

  15   10.  You are further sentenced to a term of life imprisonment

  16   on Counts 3, 5, 224 to 234, 277 to 279 and 283.

  17            As required by statute, I impose the mandatory

  18   ten-year sentence on Count 284 and the mandatory 30-year

  19   sentence on Count 286.  The sentence on Counts 284 and 286 are

  20   to be served consecutively to each other and to the other

  21   counts.

  22            The mandatory conditions of probation are moot in

  23   light of this sentence.  The mandatory drug testing is

  24   suspended because there appears to be low risk of that.

  25            The Court further orders, as mandated by statute,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   that you pay a total special assessment of $2,300.

   2            (Pause)

   3            THE COURT:  My deputy mentioned that I did not

   4   mention Count 1.  I had intended to say that you are to be

   5   sentenced to life imprisonment on Counts 1, 3, 5, 224 to 234,

   6   277 to 279 and 283, in addition to the mandatory consecutive

   7   sentences of 10 years on Count 284 and 30 years on Count 286.

   8            The Court will enter an order of restitution which

   9   provides for payment of restitution of a total of some $33

  10   million, and has provided a mechanism for the determination of

  11   the monetary amount of damages by individual victims as well

  12   as $26,300,000 to the United States.  Restitution payments are

  13   made to the United States only after restitution has been made

  14   to individual victims.

  15            The order attaches a list of persons who died as a

  16   result of the bombings and has a restitution award of some

  17   approximately $7 million.  That too will be filed, but the

  18   addresses contained on that attachment will be redacted.


  20            (Continued on next page)

  21            THE COURT:  Mr. Mohamed, the court advises you that

  22   you have a right to appeal your conviction and your sentence,

  23   and if you wish the Clerk of the Court to file a notice of

  24   appeal of sentence on your behalf, if so instructed he will do

  25   so.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            Is there anything further with respect to

   2   Mr. Mohamed?

   3            MR. RUHNKE:  No, your Honor, there is not.

   4            THE COURT:  The court will take a brief recess.

   5            (Recess)

   6            THE COURT:  With respect to the defendant K.K.

   7   Mohamed, all open counts and all of the various superseding

   8   indictments are dismissed.

   9            Mr. Al-'Owhali, have you read the presentence report

  10   and gone over it with your attorney?

  11            MR. COHN:  Your Honor, as set forth yesterday in

  12   yesterday's hearings, it was provided to him in Arabic and we

  13   have been over it with him.

  14            THE COURT:  Yesterday, I should state that we had a

  15   three-hour session yesterday in which we reviewed some of

  16   these matters.  Have all of the suggested changes and

  17   corrections to the presentence report been noted as of

  18   yesterday?

  19            MR. COHN:  We made no suggestions because there were

  20   none that were material.  As I pointed out yesterday, there

  21   was one minor matter.

  22            THE COURT:  I would like to have Mr. Al-'Owhali

  23   acknowledge that he has read the presentence report.  Have you

  24   read the presentence report?

  25            DEFENDANT AL-'OWHALI:  Yes, I did.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            THE COURT:  Very well.  Mr. Cohn, I will hear you

   2   generally with respect to sentence.

   3            MR. COHN:  Your Honor, we have no statement to make.

   4   Sentencing is statutory and we rely on the statute.

   5            THE COURT:  Very well.  Mr. Al-'Owhali, you are

   6   before this court convicted of the various crimes that are set

   7   forth in the indictment and in the presentence report.  Is

   8   there anything you wish to say to the court before sentence is

   9   imposed?

  10            No.

  11            As your attorney has stated, the sentence is

  12   mandatory here.  The jury returned a verdict which states that

  13   they do not unanimously find that the death sentence is

  14   appropriate and we understand the consequence of this is that

  15   you will be sentenced to life imprisonment without the

  16   possibility of parole.

  17            Four of the jurors stated that lethal injection is

  18   very humane and the defendants will not suffer, which is an

  19   indication of the views of some of the jurors.

  20            The court will of course impose the sentence mandated

  21   by law with respect to those counts which call for a mandatory

  22   sentence.  The court imposes a term of life imprisonment on

  23   Counts 1, 3, 4, 5, 7, 9, 11 through 223, 235 to 276, and 280

  24   to 282, to be followed by the mandatory 10 years' imprisonment

  25   on Count 284, to be served consecutively to the above counts,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   followed by a mandatory minimum of 30 years, to be served

   2   consecutively to the previously stated counts.

   3            It is appropriate that I indicate, although it is

   4   academic, that there will be a five-year term of supervised

   5   release on Counts 1, 3, 4, 5, 7, 9, 11 to 223, 235 to 275,

   6   276, 280, 281, 282 and 285, and a three-year term of

   7   supervised release on Count 284, all terms of supervised

   8   release to run concurrently.

   9            The court imposes the mandatory special assessment of

  10   $26,600.

  11            The court signs the restitution order which I

  12   previously described and which names you as a defendant

  13   obligated to make restitution payments as indicated in that

  14   report.

  15            The court imposes no fine on you, as it imposed no

  16   fine on K.K. Mohamed, because of the restitution obligations

  17   which take precedence.

  18            The court advises you that you have a right to appeal

  19   your conviction and sentence, and if you wish the Clerk of the

  20   Court to enter a notice of appeal on your behalf, he will do

  21   so.

  22            The court dismisses all open counts and any

  23   superseding indictments insofar as you are named as a

  24   defendant.

  25            Is there anything further with respect to defendant

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Al-'Owhali?

   2            MR. COHN:  No, sir, except to advise you that we will

   3   file a notice of appeal in his behalf.

   4            THE COURT:  The court will take a very brief

   5   adjournment.

   6            (Defendant Al-'Owhali excused)

   7            (Recess)

   8            THE COURT:  The court will proceed with the

   9   sentencing of the defendant Odeh.  Mr. Odeh, have you had the

  10   opportunity to review the presentence report and go over it

  11   with your attorney?

  12            DEFENDANT ODEH:  Yes, I did.

  13            THE COURT:  I believe yesterday we went over all of

  14   the suggested changes to the presentence report.  Is that

  15   correct?

  16            I will hear from counsel.

  17            MR. RICCO:  Your Honor, we have two very brief

  18   remarks to make.

  19            THE COURT:  Yes.

  20            MR. RICCO:  The first are the legal arguments that

  21   relate to a downward departure and the other just general

  22   remarks that relate to sentencing.

  23            THE COURT:  Very well.

  24            MR. RICCO:  Your Honor, first and foremost, I will

  25   have to say with respect to the issue of downward departures

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   that as counsel for defendant in Mr. Odeh's circumstance, the

   2   guidelines themselves put us through a mechanical endeavor to

   3   see to it that his due process rights are raised at the time

   4   of sentence.  The issue of departure is in no way raised as an

   5   offense to the powerful statements that the victims have made

   6   here this morning.

   7            There are three grounds that have been raised with

   8   respect to Mohamed Odeh's request for downward departure.  We

   9   primarily rely on the papers that have been submitted.  Most

  10   notably, we would indicate to the court that what we have

  11   asked the court to do is to look at a confluence of

  12   circumstances.  Those circumstances individually may not be

  13   sufficient to support a downward departure, but perhaps in

  14   confluence with each other they would.  We have submitted what

  15   we think is authority for the court to consider a downward

  16   departure, but of course we are aware that ultimately it is

  17   this court's determination as to whether or not that departure

  18   is appropriate in this case.

  19            We would ask the court to view the departures from

  20   the perspective of Mohamed Odeh.  We have requested that in

  21   our papers.  The second prong of our downward departure, that

  22   is, the assistance that he gave to other law enforcement

  23   authorities in connection with his prosecution was one ground

  24   that was highlighted.  The third ground that was highlighted

  25   was a very unusual ground, and it was a ground that reflected

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   the defendant's state of mind, because we believe that the

   2   grounds do permit a downward departure based upon the

   3   defendant's intent when that intent is different from that of

   4   a defendant who is in a typical circumstance, typical

   5   circumstance on the crime for which he was convicted.  For

   6   that we would rely on the Second Circuit case of Broderson,

   7   and I think Judge Scheindlin had a case in this district, I

   8   think Nachamie, that supports such a departure.  Mr. Wilford

   9   will address the court with the substance of the third prong,

  10   which deals with the victim provocation, which is an issue

  11   that the defendant wanted raised here in the court.

  12            MR. WILFORD:  Your Honor, it is important that we

  13   view this departure request, as Mr. Ricco stated, with respect

  14   to the mind set and the state of mind of Mr. Odeh.  Your

  15   Honor, Mr. Odeh was a soldier in the military wing of Al

  16   Qaeda, and it is clear from the evidence that was adduced at

  17   trial that the United States government was and remains the

  18   target of the actions of Mr. Bin Laden and Al Qaeda.  As a

  19   result, under the analysis for a departure on the grounds set

  20   forth in 5K2.10 of the United States Sentencing Guidelines, we

  21   must identify the victim that we speak of in terms of that

  22   particular guideline as the United States rather than the

  23   individual victims for purposes of this particular departure

  24   request, your Honor.  The perception of the victim's conduct

  25   must be viewed objectively from the defendant's perspective,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   and for that we rely on United States v. Morin.  However, that

   2   conduct must be real, it must not be imagined, and it must

   3   also be more than provocative, it must be wrongful.  Speaking

   4   with respect to Mohamed Sadeek Odeh --

   5            THE COURT:  With respect to his state of mind, what

   6   is it that you rely on as furnishing the court any insight

   7   with respect to the defendant's state of mind?

   8            MR. WILFORD:  Government's Exhibit 6, your Honor,

   9   which is the report of the statements that were taken from

  10   Mr. Mohamed Odeh in Kenya over the 11-day period of

  11   interrogation, and the testimony that accompanied them by

  12   Agent Anticev.

  13            THE COURT:  And that is the totality of the evidence

  14   with respect to his state of mind insofar as he is concerned?

  15            MR. WILFORD:  That is correct, your Honor, and, your

  16   Honor, if I may, with respect to Mr. Odeh's state of mind,

  17   your Honor -- I am speaking now on behalf of Mr. Odeh solely,

  18   your Honor, and it says, so the court is clear, it is

  19   Mr. Odeh's view that the United States' support of Israel,

  20   both financially, politically and militarily, presence of

  21   United States military in the holy lands of Saudi Arabia, the

  22   Persian Gulf and the Horn of Africa, constitutes provocation

  23   on the part of, as I said, the victim being the United States.

  24            Indeed, based on that, as we stated in our papers,

  25   the defendant satisfies the five prongs of 5K2.10, and based

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   upon that, your Honor, we would submit to the court that the

   2   victim's conduct, as we detailed in our papers, becomes the

   3   basis for a downward departure if it is viewed in conjunction

   4   with the other grounds which Mr. Ricco mentioned and which we

   5   mentioned in our papers, and these grounds combined provide

   6   the opportunity, should the court deem it appropriate, to

   7   grant a downward departure.

   8            Additionally, your Honor, Mr. Ricco will be

   9   addressing the court on some general remarks with respect to

  10   sentence.

  11            THE COURT:  Does the government wish to respond to

  12   the downward departure request?

  13            MR. KARAS:  Yes, your Honor.  In addition to what we

  14   mention in our papers, which is that there is no basis for

  15   downward departure because the defendant faces mandatory life,

  16   that there is no basis for downward departure by virtue of

  17   alleged cooperation because no one was arrested or prosecuted

  18   with respect to the information Mr. Odeh, with respect to the

  19   alleged misconduct, the argument is offensive.  The attack may

  20   have been intended to attack American foreign policy, but the

  21   victims were innocent people:  Innocent Americans, innocent

  22   Kenyans and innocent Tanzanians.  There is no basis under any

  23   reading of the law that the people who were killed did

  24   anything to deserve the attacks that Mr. Odeh was involved in.

  25            THE COURT:  The court denies the application fore a

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   downward departure.  Assuming arguendo that the court would

   2   have the power to downwardly depart, there is no grounds which

   3   have been urged which would in any way suggest to the court

   4   that a downward departure is appropriate.  To try to make the

   5   victims appear to be an abstraction may ease the conscience of

   6   the defendant, but does not mitigate the fact that 214 people

   7   were killed as a result of the two bombings and the suffering

   8   which was inflicted not on abstractions but on human beings.

   9            The application for a downward departure on the

  10   grounds that the defendant's state of mind is predicated on

  11   the fact that he told somebody who was interrogating him in

  12   Kenya that he was sorry so many civilians were killed is

  13   grossly inadequate basis for any downward departure.

  14            The court has read the papers and all of the grounds

  15   urged for a downward departure and finds them to be without

  16   merit and, as stated, assuming arguendo that the court would

  17   have the power to downwardly depart, it declines to do so.

  18            Mr. Ricco.

  19            MR. RICCO:  Your Honor, generally with respect to the

  20   sentencing of Mohamed Odeh, your Honor, Mohamed Odeh stands

  21   before the court today for sentencing.  He is a foreign

  22   national convicted of participating in extreme acts of

  23   violence against people of the United States and of other

  24   nations.  Today Mohamed Odeh reasserts his innocence to

  25   committing crimes against the people of the United States and

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   other nations.  He is and remains a member of Al Qaeda who in

   2   his view, in his faith of God, brought him from the Middle

   3   East to the Philippines to Afghanistan, to participate in an

   4   organization to change oppressive circumstances.  Mohamed

   5   Odeh's hope is that some day the conditions of oppression will

   6   be removed from the parts of the world in which he lives.  He

   7   was a member of the military wing of Al Qaeda and was prepared

   8   to fight and did fight for change.  He participated, as the

   9   court is aware from the testimony at trial, in combat in

  10   Afghanistan and in Somalia.  However, Mohamed reasserts now,

  11   as he did then, that he did not join Al Qaeda to follow

  12   Mr. Bin Laden or take orders from anyone blindly.

  13            He is now prepared to face the sentence that the

  14   court must impose here.  He is very much aware of the

  15   substantial human loss that occurred here.  He is not

  16   oblivious to the fact that many people were injured and many

  17   people died here who were innocent.  He acknowledged that very

  18   early on in the case when he was interrogated.  He has remorse

  19   about the loss of life.  He has always expressed that.  He

  20   does not have remorse, your Honor, about his participation in

  21   Al Qaeda.  That's a difference in his mind.

  22            He is a very deeply religious man who has complete

  23   and utter faith in God.  Like other people who have come

  24   before the court, he believes that God will ultimately judge

  25   him some day.  Some day many years from now Mohamed will be

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   laid to rest by the Bureau of Prisons long after many of us

   2   are gone.  Mohamed will live a very long and lonely life here

   3   in a United States prison.  As the court is aware, he has no

   4   family, no friends, no relatives, nothing in this country.

   5   However, Mohamed wants the court to know that he has complete

   6   and total faith in God.  It is his hope that God will not

   7   abandon him and will continue to be a part of his life while

   8   he serves his sentence here in the United States.

   9            Mr. Odeh also wanted to express, notwithstanding his

  10   bitterness at being prosecuted here, his gratitude to this

  11   court for providing him, a person who is a stranger to this

  12   country, with an opportunity to work with the lawyers and an

  13   opportunity to present a defense before this court.

  14            I just would end by saying, in the place where I

  15   started when we did opening statements here, there was a

  16   tremendous loss of life here.  I don't think there is anything

  17   anyone could ever say that would ever change the tragedy of

  18   that loss.  Mohamed Odeh has always stated that he was not a

  19   part of the execution of the bombing.  He continues in that

  20   position today, but that does not mean, your Honor, that he is

  21   a person who is oblivious to the great loss of human life and

  22   the great injury that was inflicted upon people here.

  23            These are the remarks that Mr. Odeh wanted to be said

  24   on his behalf by me here at sentencing today.  He does have a

  25   very brief statement that he wants to make, your Honor.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            THE COURT:  Mr. Odeh, you stand here before the court

   2   convicted of the crimes set forth in the indictment.  Is there

   3   anything you wish to say to the court before sentence is

   4   imposed?

   5            DEFENDANT ODEH:  Yes.

   6            THE COURT:  The court will hear you.

   7            MR. HERMAN:  It is in Arabic, Judge.

   8            THE COURT:  The interpreter -- I wonder whether it

   9   would be -- yes.

  10            MR. RICCO:  The interpreter is coming forward, your

  11   Honor.

  12            THE COURT:  You want a hand mike?  Mr. Codouni, you

  13   will interpret for the defendant, please.

  14            MR. CODOUNI:  Yes, your Honor.

  15            DEFENDANT ODEH:  In the name of God, the

  16   compassionate and merciful.  In truth, during the last three

  17   years there are many things that I have experienced and that I

  18   could be talking about for many hours.  But I know that the

  19   opportunity I have is a short one here.  Suffice it to say two

  20   things.  It is a question that I pose, and I present to the US

  21   government.  I ask myself too, how can the government claim

  22   justice and that it allows itself to try a person twice with

  23   the same charges?  My personal opinion is that the trial

  24   happened and the verdict is of the past and the execution of

  25   the sentence has been done a month ago, since -- I mean to

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   say -- correction -- since the last -- the end of the month of

   2   August in 1998, when the US government sent missiles against

   3   those the government claimed had a relationship who does not

   4   have such relationship in the embassy incident, including

   5   dozens of civilians that have nothing to do and are not guilty

   6   of anything here and who do not have anybody to represent them

   7   here in this place and at this time.

   8            My question here is, if this is what the trial is

   9   about, if this is a trial, what is it that happened since the

  10   beginning of the year until the middle of it, and if what

  11   happened since the beginning of the year until the middle of

  12   it is the trial, what can what happened in 1998 be called?

  13            The second issue is question whether what happened in

  14   that period of time between the month of February until the

  15   month of May, if it is a true image of what American justice

  16   is.  In that case I would not have anything but to say that to

  17   Allah we belong and to him we return.  God help me in my

  18   calamity and replace it with goodness.  On God I rely.  In him

  19   I put my trust.  Thank you.

  20            THE COURT:  Mr. Odeh, I confess that I am not sure

  21   that I understand what you are saying insofar as American

  22   justice is concerned.  Your attorney on your behalf expressed

  23   your gratitude at having been furnished with very able

  24   counsel, who very zealously looked after your interests.  I

  25   have already commented on the jury and how it was selected and

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   the time, effort and money that has been expended in an effort

   2   to give you, I believe a successful effort to give you a fair

   3   trial in accordance with principles of American justice.  I

   4   think it has been extraordinary.

   5            It is not unusual for perpetrators of horrendous

   6   crimes to point to other events or other circumstances to try

   7   to deflect the enormity of their own acts.  When you talk

   8   about America firing missiles at persons it believed were

   9   involved in the bombing and that there was death to innocents,

  10   that would suggest that your system of values would not allow

  11   or condone the killing of innocents.  But you know that the

  12   crimes for which you have been found guilty involved the

  13   killing of innocents.

  14            I recognize, as the jury, I think, indicates in its

  15   findings with respect to the defendants who were subject to

  16   possible death penalty, that your motivation was not the

  17   motivation of a criminal who acts out of greed or lust, but

  18   that is true of most terrorists.  And the law recognizes, and

  19   appropriately recognizes, that terrorism, which causes the

  20   death of innocent persons regardless of whether it is based on

  21   sincerely held but terribly misguided views or any other

  22   reason, is one of the most serious crimes, threats to our

  23   society, threats to the society of any civilized nation.

  24            It is the judgment of this court that you be

  25   sentenced to a term of life imprisonment on Counts 1, 3, 4, 5,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   7, 9, 11 through 223, 235 to 275, 276, 280 to 282, to be

   2   followed by a mandatory 10 years' imprisonment on Count 284,

   3   and a mandatory 30 years imprisonment on Count 285, to be

   4   served consecutively to each other and to the life terms.

   5            The court imposes the mandatory special assessment of

   6   $26,600.

   7            The court includes you in the restitution order, a

   8   restitution order which takes into consideration your present

   9   economic situation so far as we know it, and the fact that you

  10   will be incarcerated.  The court imposes no fine because of

  11   the amount of the restitution ordered.

  12            The court dismisses any open counts in which you are

  13   named as a defendant and any superseded indictment.

  14            The court advises you you have a right to appeal your

  15   conviction of sentence, and if you wish the Clerk of the Court

  16   to enter a notice of appeal on your behalf, he will do so if

  17   so advised.

  18            Is there anything else with respect to Mr. Odeh?

  19            MR. RICCO:  No, sir.  I will file a notice of appeal

  20   on his behalf.  Thank you very much.

  21            THE COURT:  Very well.  The court will take a brief

  22   recess.

  23            (Defendant Odeh and his counsel excused)

  24            (Recess)

  25            THE COURT:  Which brings us to the matter of sentence

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   for the defendant El Hage.  At a three-hour hearing yesterday,

   2   we resolved all questions relating to the content of the

   3   restitution order, of the presentence report and all legal

   4   issues, deferring until today not only the sentence but

   5   requests made on behalf of El Hage for downward departure.

   6            Before we do that, although we did cover it

   7   yesterday, Mr. El Hage, have you read the presentence report?

   8            DEFENDANT EL HAGE:  Yes, I did.

   9            THE COURT:  Has your attorney yesterday, a hearing at

  10   which you were present, stated all of the objections or

  11   corrections you have to the presentence report?

  12            DEFENDANT EL HAGE:  Yes, he did.

  13            THE COURT:  Very well.  Mr. Schmidt, I will hear you

  14   then.

  15            MR. SCHMIDT:  Your Honor, the way we intend to

  16   proceed is, Mr. Dratel is going to deal with the issues

  17   relating to the downward departure application.  Then I will

  18   speak briefly on behalf of Mr. El Hage and Mr. El Hage will

  19   read a statement that he has prepared for your Honor.

  20            THE COURT:  Very well, Mr. Dratel.

  21            MR. DRATEL:  Mr. El Hage specifically does not join

  22   in the departure request with respect to victim conduct.  It

  23   is Mr. El Hage's conviction that victim has nothing to do with

  24   either downward departure or the embassy bombings.

  25            THE COURT:  The court understands that the defendant

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Odeh was speaking for himself and speaking his views and not

   2   the views of anyone else.

   3            MR. DRATEL:  Your Honor, we have submitted several

   4   grounds for downward departure.  I want to focus on one in

   5   particular, which is the conditions of confinement, both

   6   presentence and continuing from here on.  The Second Circuit

   7   has recently recognized the validity of downward departure

   8   based upon conditions of confinement in the United States v.

   9   Cardi case.

  10            THE COURT:  That is a case in which the defendant

  11   fled to the Dominican Republic and was held in the Dominican

  12   Republic under conditions described in that opinion which were

  13   not the result of any conduct on his part other than being in

  14   the Dominican Republic.  It was not a question of restrictions

  15   or sanctions imposed upon him because of his conduct in

  16   confinement.

  17            MR. DRATEL:  Your Honor, there are two responses is

  18   to that.  While the incident of June 1999 occurred, Mr. El

  19   Hage was held in solitary confinement for nine months before

  20   that.  There were no acts alleged against him personally.  In

  21   Cardi, I think the defendant argued -- and also in Francis --

  22   not outside the country, in the United States, where Judge

  23   Patterson departed downward based on conditions of

  24   confinement.

  25            I think the court also recognized in this case prior

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   to June 22, 1999, and I think the court said it would take

   2   judicial notice of the fact that solitary confinement has an

   3   impact on mental health that is obviously not beneficial.  We

   4   have that now for basically a three-year period going forward

   5   for as long as the court sentences Mr. El Hage.  Those issues,

   6   we believe, warrant a downward departure.

   7            In addition, particularly in light of not knowing

   8   where the designation of Mr. El Hage would be, the issue of

   9   family contact, Mr. El Hage's wife and seven children, their

  10   ability to have contact with him on any kind of meaningful

  11   basis is also part of that.  While we obviously can't quantify

  12   the equivalent in terms of the normal conditions of

  13   incarceration, we believe that the difference is substantial

  14   enough to warrant a departure from the guideline sentence.

  15            In addition, with respect to the other grounds for

  16   departure -- I just want to say about the conditions of

  17   confinement, I think everyone is in agreement that they are

  18   stringent as are possible under our system.

  19            With respect to the other grounds for departure --

  20   this also goes to the conditions of confinement -- to the

  21   extent that alone they do not constitute a grounds for

  22   departure, I think altogether they do.  I am not revisiting

  23   the substance of the arguments yesterday, but the Second

  24   Circuit has found in a string of cases -- Gigante, Cordova,

  25   and even Salameh, a case more similar, involving the World

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   Trade Center -- that the court did authorize a downward

   2   departure to the extent that even if the court found as a

   3   matter of law the applicability of certain adjustment, that

   4   the way to remedy the possible inequitable application of that

   5   adjustment was through a downward departure, and we believe

   6   that in many of the instances with respect to the

   7   enhancements, whether they be offense-related enhancements but

   8   also the criminal-history-related enhancements in particular,

   9   the arbitrary enhancement to level 6, that all of those should

  10   be remedied by downward departure.

  11            In addition, the extraordinary family

  12   circumstances --

  13            THE COURT:  Tell me about them.  The family

  14   circumstance is that Mr. El Hage has seven children.

  15            MR. DRATEL:  Yes, your Honor.

  16            THE COURT:  One of them is three years old?  The

  17   court should note that it has received a letter from Mr. El

  18   Hage's wife.

  19            MR. DRATEL:  Yes.

  20            THE COURT:  How old is the youngest child?

  21            MR. DRATEL:  Three, your Honor.

  22            THE COURT:  And you urge that Mr. El Hage have an

  23   opportunity to participate in the raising of that child?

  24            MR. DRATEL:  Your Honor, in addition, the downward

  25   departure grounds are more related to the potential, or the

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   actual difficulties that the children have with respect to --

   2            THE COURT:  Being separated from their father.

   3            MR. DRATEL:  Yes, exactly.

   4            THE COURT:  And how long a sentence do you think

   5   would obviate that?

   6            MR. DRATEL:  Your Honor, I think that --

   7            THE COURT:  I won't require you to quantify that, but

   8   isn't it the fact that any reasonable downward departure from

   9   the guidelines which were established yesterday would have the

  10   consequence of Mr. El Hage being separated from his children

  11   until their maturity?

  12            MR. DRATEL:  Your Honor, I think there are two

  13   questions that raises.  One is whether the difference in the

  14   sentence might also precipitate a difference in the conditions

  15   of confinement and the security --

  16            THE COURT:  Conditions of confinement are determined

  17   by the Bureau of Prisons, not by this court, and they are

  18   determined considering the factors such as nature of the

  19   crime, past conduct of the defendant while incarcerated -- I

  20   don't understand the number of children or ages of children as

  21   a factor with respect to conditions of confinement.

  22            MR. DRATEL:  The length and character of the sentence

  23   is one that the Bureau of Prisons takes into account with

  24   respect to a security designation for a defendant.  There are

  25   certain eligibilities for certain types of facilities that are

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   related to the length of the sentence.

   2            THE COURT:  What I am really suggesting to you is --

   3   the court has the power to downwardly depart.  That should be

   4   clear.  I recognize that I have that power.  But that no

   5   reasonable downward departure would significantly impact on

   6   either family circumstances or conditions of confinement.

   7            MR. DRATEL:  Your Honor, when we talk about

   8   conditions of confinement, we are also talking about the type

   9   of -- in other words, what an appropriate sentence and

  10   appropriate punishment is in the longer context, not that a

  11   downward departure would alleviate the conditions of

  12   confinement when he is serving but in terms of what the

  13   equivalent is, in the sense that the type of sentence that he

  14   is serving --

  15            THE COURT:  I don't think that is the case.  I hope

  16   that is not the case.  I assume that the Bureau of Prisons

  17   will read the presentence report, will read the other material

  18   that will be furnished to him with respect to Mr. El Hage's

  19   conduct and that it will determine conditions of confinement,

  20   place of confinement, based on all of that, not whether the

  21   court downwardly departs or not.  Unless, you know, unless you

  22   were to make an extraordinary finding of how Mr. El Hage's

  23   conduct was aberrational, that there is no likelihood of

  24   repetition, that there was complete remorse, all things which

  25   are really totally irrelevant to this case.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            MR. DRATEL:  Your Honor, I don't think that was what

   2   the court was doing in Cardi.  They weren't saying because the

   3   conditions of confinement would be alleviated there was that

   4   was a reason for downward departure.  It was because the

   5   incarceration that the defendant endured under conditions that

   6   were so much more onerous than ordinary, that that should take

   7   time off the end of the sentence, and that was the nature why

   8   it should reduce the sentence and not how it was served.

   9            THE COURT:  I am fully familiar with the case and

  10   indeed I have it on the bench.

  11            MR. DRATEL:  The other issues we raised in terms of

  12   downward departure in addition to the criminal history

  13   enhancement was also the proportionality aspect in terms of

  14   the sentences among the defendants.

  15            THE COURT:  What is that now?  Defendants subject to

  16   the death penalty argued proportionality before the death

  17   penalty jury.  You are not prohibited from arguing

  18   proportionality to me.  I just don't understand what the

  19   deprivation is that you allege with respect to

  20   proportionality.  Do you want me to find that El Hage is the

  21   least culpable of the four defendants?  I would not make such

  22   a finding.  Do not press me as to whether I think he is the

  23   most culpable of the four.

  24            MR. DRATEL:  Your Honor, we have made our argument

  25   that in terms of the conduct at issue, that based on that,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   based on a reasonable proportional imposition of sentence,

   2   that he would get less time, your Honor.

   3            THE COURT:  Anything else?

   4            MR. DRATEL:  No, your Honor.  Thank you.

   5            THE COURT:  Does the government wish to be heard?

   6            MR. KARAS:  Not beyond what is in our papers.

   7            THE COURT:  The court recognizes that it has the

   8   power to grant a downward departure but declines to do so

   9   because it believes that a downward departure here, based on

  10   conditions of confinement, would be entirely inappropriate.

  11   Conditions of confinement as predicated here will be

  12   determined by the Bureau of Prisons in light of the nature of

  13   the crimes, in light of the defendant's history while

  14   incarcerated, and other facts and circumstances.  There is

  15   simply no basis for a downward departure on the basis of

  16   conditions of confinement.

  17            With respect to family circumstances, Mr. El Hage has

  18   seven children who I believe he loves and I believe love him.

  19   Incarceration is always a hardship for one's family, but in

  20   this case of all cases, hardly provides a basis for a downward

  21   departure.  It must be obvious to everyone in this courtroom,

  22   having heard today from victims, how incongruous it is for

  23   Mr. El Hage to seek leniency because he has a family.

  24            With respect to proportionality, the notion that the

  25   facilitator, to use a term which I believe was first used in

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   the government's summation and has been repeated in the

   2   papers, to suggest that the facilitator is less culpable than

   3   the low-level individual who ground up the explosive powder is

   4   not a set of values that I would subscribe to.  Facilitator of

   5   what?  Facilitator of the conspiracy to kill Americans.

   6            The motions for downward departure are denied.  The

   7   applications for downward departure are denied.  Recognizing

   8   that the court has power, the court believes that it would be

   9   inappropriate to exercise that power.

  10            Mr. Schmidt.

  11            MR. SCHMIDT:  Your Honor, may I have one moment to

  12   speak with government counsel?

  13            THE COURT:  Yes.

  14            (Continued on next page)












                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            MR. SCHMIDT:  Your Honor, in my October 16th, 2001

   2   submission, I included the documents.  The government has made

   3   it clear that it proposed that the documents be immediately

   4   publicly filed and available.  Those documents include the

   5   letter that was prepared by April Ray, Mr. El Hage's wife, a

   6   draft of a letter that he wrote back in 1997 before his arrest

   7   to his father, and a letter or statement to the Department of

   8   Probation in preparation of the pre-sentence report.

   9            Mr. El Hage will be speaking to your Honor at greater

  10   length than counsel, and I think that he will be able to

  11   better express his feelings, his desires better than I

  12   possibly can.  So I will try to limit my discussions in areas

  13   that Mr. El Hage will not discuss.

  14            One of those areas that he is going to be limiting

  15   his discussion is of his family and his friends and his

  16   community, for a number of reasons.  As was expressed in the

  17   pre-sentence report, it is very difficult for Mr. El Hage to

  18   talk about his family without breaking down because he has

  19   been separated from his family, his children, and his wife

  20   longer -- for a very long period of time, under the

  21   circumstances where his contact is limited and not private and

  22   infrequent.  And in fact, he has not had the opportunity to

  23   speak to his wife for many months prior to today.  This does

  24   not --

  25            THE COURT:  He has not had the opportunity recently,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   because as a the result of the events of September 11th,

   2   telephone service in the MCC was impaired.  And in that

   3   respect, you wrote me a letter and you spoke to me about

   4   Mr. El Hage has not been able to speak to his wife or family.

   5   And I made inquiry of the warden and was advised by the warden

   6   that that was true, that it was true for every inmate in the

   7   MCC.

   8            MR. SCHMIDT:  And I am aware of that, your Honor.

   9   Prior to the tragic events of September 11th, Mr. El Hage had

  10   not spoken to his family for over a month also.  I am also

  11   aware that it includes all of MCC.  However, all of MCC are

  12   not facing sentences that clearly are going to be life

  13   imprisonment without parole after a five-month trial.

  14            I have spoken to Mr. El Hage.  We obviously have

  15   facilities to have attorney telephone calls.  I know that it

  16   is difficult, but I'm sure that there is going to be problems

  17   in the future and difficulty with Mr. El Hage speaking to his

  18   family, and that affects him greatly.  What I was saying was

  19   that --

  20            THE COURT:  We went out of way our way yesterday in

  21   the restitution order to make sure that there is not a

  22   deprivation of funds necessary for telephonic communication.

  23            MR. SCHMIDT:  I understand.  I understand.  Raising

  24   the closeness of Mr. El Hage's relationship with his family,

  25   and the difficulty that it has been for him, we do not mean to

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   diminish the pain, the suffering caused by victims and the

   2   family of victims of the embassy bombings.  We understand that

   3   and we are here and my job is to reflect the needs of Mr. El

   4   Hage.

   5            One thing that Mr. El Hage will address to some

   6   extent, and I wish to address briefly, is that Mr. El Hage,

   7   while understanding the suffering of the victims of the

   8   Nairobi and Dar es Salaam bombing, has always maintained that

   9   he did not participate in any manner or approve in any manner

  10   or join in any manner of that conduct.

  11            Mr. El Hage has been honest and straightforward as to

  12   his strong religious and political beliefs, and he will

  13   continue to do so, as he will explain shortly.

  14            He will be treated, it is clear, based on letters

  15   that we received or information that we received from the

  16   Bureau of Prisons, as an "embassy bomber," though in his

  17   background he has no history of any violent activity.

  18            He wants to express, the government has called Mr. El

  19   Hage a facilitator, and in the manner that both the government

  20   and your Honor and the Department of Probation has portrayed

  21   Mr. El Hage is that he was a facilitator of the embassy

  22   bombing, and as we have made clear, we disagree very strongly

  23   with that portrayal.

  24            THE COURT:  One may accept the proposition that the

  25   al Qaeda, like most clandestine gangs, operates on a

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   need-to-know basis, and there is no evidence that Mr. El Hage

   2   knew of the embassy bombing, knew when or the details of the

   3   embassy bombing.  But you know, I asked in colloquy, what was

   4   he facilitating when he was obtaining these false passports

   5   and arranging all these other things?  What did he think that

   6   was for?  Why did he think it was of value to have an American

   7   citizen who could travel freely about?  Was he totally

   8   oblivious of the nature of the organization that he was

   9   working for?

  10            I don't think he is willing to say that.

  11            MR. SCHMIDT:  He is not going to say that.  I think I

  12   can address it as Mr. Kherchtou addressed it, is that the

  13   nature of the organization is clear to be assisting indigent

  14   rebellions in Muslim countries against the powers that were in

  15   existence then, whether it was in Chechnya, whether it was in

  16   Tajikistan.

  17            And as your Honor indicated, the fact of the need to

  18   know, there was not a need to know and we don't even know when

  19   it was decided that civilians became a proper target of al

  20   Qaeda.  And I think that really becomes the issue, and Mr. El

  21   Hage will address, to a limited extent, his belief and

  22   religious feelings.

  23            THE COURT:  This is really not the time to quarrel

  24   with the jury's verdict, but the jury found Mr. El Hage guilty

  25   of a conspiracy to kill the United States nationals and made

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   that finding based on sufficient evidence to do that.

   2            MR. SCHMIDT:  I don't mean to quarrel.  Your Honor

   3   made certain comments where I believe that the jury verdict

   4   doesn't reach as far as the comments that your Honor made.

   5            The documents that were included in my letter show

   6   Mr. El Hage's strong religious beliefs, and I believe that it

   7   shows that he uses his beliefs as strength for himself, not a

   8   sword against others who do not believe in the same thing that

   9   he does, and he will express himself in that way.

  10            Mr. El Hage, from the point that I began representing

  11   him in March of 1999 -- I was not his first lawyer -- and when

  12   Mr. Dratel began representation of Mr. El Hage, I believe it

  13   was September, August of 1999, has steadfastly insisted in the

  14   way he has dealt with us and what he has said about the case.

  15            He will obviously, your Honor, receive a life

  16   sentence at this time.  He will continue to remain a religious

  17   and devout person, and he would like this opportunity right

  18   now to attempt to give your Honor a better understanding of

  19   the person that you are about to sentence, Wadih El Hage.

  20            THE COURT:  Very well.  Mr. El Hage, you are before

  21   the Court convicted of various counts in the indictment.  Is

  22   there anything you wish to say to the Court before sentence is

  23   imposed?

  24            DEFENDANT EL HAGE:  Good afternoon, Judge Sand.  Good

  25   afternoon, ladies and gentlemen.  I have prepared a word that

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   I will read in front of you.

   2            THE COURT:  May I suggest you use the microphone?

   3            DEFENDANT EL HAGE:  Thank you for giving me the

   4   opportunity to do so.

   5            First, I will speak about my beliefs because the

   6   persons beliefs form his identity and character.

   7            This courtroom, with its walls, arrangements,

   8   decorations, audio and video systems, et cetera, if we ask who

   9   built it and who has been maintaining it all these years, and

  10   someone answers, it just happened to be there, no one made it,

  11   no one to take care of it.  Then we probably think this person

  12   is either kidding or he is insane.  We know for sure that

  13   someone must have made it and someone is taking care of it

  14   every day.

  15            So, when we look at this vast universe, with its

  16   zillions of stars, plants and other systems, the earth, with

  17   its oceans, mountains, substances inside of it and on top of

  18   it, creatures of all kind, each has its own features,

  19   performance, place and life span.  And finally, when we look

  20   at ourselves, organs, blood, sensations, our life and our

  21   death, all that, could it have existed on its own and

  22   continuing to exist and do its duties without a director,

  23   controller or maintainer?

  24            No doubt that there is a creator for everything in

  25   this universe, and he is the sustainer and controller of that,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   who knows what are the needs of every single creature to

   2   continue its life and existence.  Everything performs and acts

   3   according to God's will and his system, and have no choice but

   4   to follow this system reluctantly, except for humans, whom God

   5   has given them free will to choose their actions.

   6            This was a great honor given to mankind.  God, the

   7   most merciful, most wise, sent His prophets and messengers to

   8   teach mankind who is their creator and also how to deal with

   9   each other and with everything around them according to the

  10   best methods and manners, which, if man chooses to follow,

  11   will enable him to live a good life, harmonious and consistent

  12   with everything around him, which all are governed by God's

  13   rules.

  14            Through the history, humans were two parts.  One

  15   chose to follow God's rules and guidance, therefore lived a

  16   good life in correlation with everything around them.  The

  17   other party chose to invent their own rules and systems of

  18   life, thus living in conflict with everything around them,

  19   experiencing high rates of crime, family crisis, unwanted

  20   children, high rate of rape of women and children, suicide,

  21   mental illnesses, and much more.

  22            All that, whenever existed among the first party, it

  23   was in negligible rates because they are following the maker's

  24   guidelines.  Yes, humans have been making their own laws, but

  25   they also change, delete or alter them every now and then.

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            But in this process people are being subject to

   2   unfair rules, rights are being violated, and individuals are

   3   being oppressed.  Not only that, but corruption and damage

   4   will also affect the other creatures around us, the

   5   environment, air, and oceans.  All that because man wants to

   6   apply his own self-created rules, in spite of all his

   7   weaknesses, shortcomings, limited ability to see, hear, speak,

   8   judge and make decisions.  Man also has desires, tendencies

   9   and whims.  All those limitations hinder man's ability to

  10   establish a complete and fair system.

  11            On the other hand, following the rules and guidelines

  12   of God, the creator and maker, who knows what He made, who

  13   knows what is good for His creations and what is bad, the one

  14   who possesses unlimited abilities, wisdom, mercy, might and

  15   knowledge, following his rules will never cause any harm or

  16   injustice for any of his creatures.

  17            Where do we find our creator's rules and guidance?

  18   If we put aside our self-deceit, arrogance, traditions,

  19   habits, ego and prejudice, I believe we will come to find that

  20   the message of Islam is the last and final message God sent to

  21   mankind, which has this complete set of rules and guidelines

  22   for a successful, prosperous and happy life on this earth and

  23   a better life in the hereafter.

  24            Now, even though the Islamic system and way of life

  25   is for the best of all humanity, devout Muslims, as I believe,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   are not asking to apply it here in the U.S., where Muslims are

   2   less than 7 million.  They are a minority.  The fact is that

   3   they want to apply it in the Islamic countries where the

   4   majority are Muslims.  But in those countries, today's

   5   selfish, arrogant and self-deceited kings, presidents and

   6   rulers want to apply their own self-invented rules only to

   7   serve their own interests and desires, denying their people

   8   the right to choose the system they all want.

   9            Devout Muslims, as I believe, are not asking to try

  10   or test the Koranic rules to see if it works for this society

  11   or not.  Those rules, as I read in history, were implemented

  12   and applied from the time of the prophet Muhammed, peace be

  13   upon him, and for over 13 centuries, a government very

  14   successfully, almost half the known world then, during which

  15   the Islamic state was the strongest and most prosperous.  For

  16   13 centuries, the constitution was the one from our creator,

  17   the Koran.

  18            To make the long story short, by the 20th century,

  19   the rulers started to neglect the Koranic laws, substituting

  20   them with manmade laws.  The result is what we see today.

  21   Muslim nations are the weakest, poorest and most miserable.

  22   That is why, in my opinion, we find devout, committed Muslims,

  23   individuals and groups, working actively to reimplement God's

  24   rules and guidance.

  25            For many years they tried to advise their rulers,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   urging them to apply God's rules in peaceful ways, but those

   2   rulers responded by using force and cruelty because they want

   3   to protect their positions as rulers while the whole nation is

   4   in misery.

   5            Ultimately, some of those individuals and groups

   6   chose to have a conflict with those rulers.  Others chose to

   7   migrate to other countries, such as the U.S., where they can

   8   spread the message of Islam freely and in the same time

   9   support their brothers and sisters who are continuing their

  10   efforts to apply God's rules in the Islamic countries.

  11            All that was done while recognizing, as devout

  12   Muslims, that even in time of conflict, they should not exceed

  13   certain limits, harming innocent people or noncombatant ones.

  14   This is very stressed upon in the Koran and the teachings of

  15   the prophet Muhammed, peace be upon him, who even prohibited

  16   destroying crops, animals or property at time of war.

  17            Here, I would like to emphasize, as I did in the

  18   past, that committed Muslims follow God's rules and course,

  19   not individuals or groups.  Those who chose to come to the

  20   U.S. were able to live and follow the teachings of their

  21   religion freely, spreading those teachings also freely, until

  22   Islam became the fastest growing religion in the U.S., as it

  23   is in the whole world, all praise be to God first, and to the

  24   tolerant, open society here.

  25            I was one of those, came here first to go to college,

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   and I admired the educational system here very much,

   2   graduated, got married, and got my citizenship.  During all

   3   that time, I joined Islamic activities to spread the teachings

   4   of our creator, and also to support our brothers and sisters

   5   in Islamic countries in their efforts to apply the rules of

   6   God there.

   7            I also did all that freely, without any objections

   8   from the government here.  Moreover, on several occasions I

   9   had the chance to criticize our government's foreign policy

  10   towards Islamic countries.  During all that, I maintained

  11   clean records everywhere I went.

  12            Devout Muslims in Afghanistan, as in many other

  13   Islamic countries, were in conflict with the secular

  14   government there until they almost toppled it.  At that point,

  15   the Russians invaded Afghanistan to prevent the establishment

  16   of an Islamic government.

  17            I went to Afghanistan, as did thousands of committed

  18   Muslims from all over the world, to support our brothers and

  19   sisters in their efforts to repel the Russian invaders, and

  20   which was also the policy of my adopted country here.  My role

  21   was mainly in the relief and humanitarian field, considering

  22   my physical disability.

  23            Ultimately, the Russians pulled out.  But for several

  24   reasons, the Afghan leaders did not rule by Islamic laws.  The

  25   result was four more years of civil war and misery in

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   1   Afghanistan.

   2            Finally, the Afghan scholars moved to contain the

   3   deteriorating situation and were supported by the majority of

   4   Afghan people in their efforts to establish an Islamic

   5   government.  The result was peace, security and prosperity in

   6   most of Afghanistan.

   7            I mentioned the Afghanistan experience as an example

   8   for what I believe to be the demand of the majority of Muslims

   9   in the world, that is, to be ruled by the constitution of our

  10   creator.

  11            After having lived over 20 years in this country, I

  12   believe that God's rules, if adopted, can solve many problems

  13   that are devastating the American society.

  14            Bottom line, God created, so he knows what is the

  15   best for all his creations.  It is all in the Koran.  Study

  16   it, know your creator, and follow his guidance.  This is the

  17   way for a good life on this earth and the hereafter.

  18            In Islam, as I have learned and believe, ends do not

  19   justify means.  They both have to be legal and in accordance

  20   with God's rules and teachings.

  21            When the bombings happened in Africa in '98, my

  22   opinion was that that action was extreme and not in accordance

  23   with the beliefs that I learned.  I made my opinion clear well

  24   before I was arrested or charged.  Today, my opinion is still

  25   the same towards what happened in Africa and what happened

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   here last month.  The killing of innocent people and

   2   noncombatant is radical, extreme and cannot be tolerated by

   3   any religion, principles, beliefs or values.

   4            Today I can stand here and say that I did not

   5   participate or support any extreme conduct or any act that

   6   violates my beliefs as a devout Muslim, but please understand

   7   that my beliefs form my opinion that many American policies

   8   towards Muslim countries and people are wrong, such as the

   9   embargo on the Iraqi Muslim people which led so far to the

  10   death of over one million child and thousands of innocent

  11   people.  Also, the unconditional support of the American

  12   government to the Israeli government that is killing innocent

  13   Palestinians, taking their land, expelling them and destroying

  14   their homes.

  15            Perhaps the secular world do not understand the

  16   impact of having non-Muslim troops on the land of Muslims'

  17   holiest sites, its negative impact on Muslim masses around the

  18   world and specifically on those in the Arabian Peninsula.

  19            Such policies, in my opinion, are wrong and end up

  20   breeding unjustified extremism.  Those views of mine, I have

  21   expressed them publicly, not in secret, even in my interviews

  22   with government agents and the Grand Jury.

  23            Many Muslims and non-Muslims have expressed the same

  24   views.  That includes the American Muslim community, which I

  25   am a member of, which is free to voice its criticism to the

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   American policy but without committing or supporting any

   2   extreme acts.

   3            Now I will go to the last part of my word.

   4            On September 16, '98, I was taken into custody after

   5   a Grand Jury testimony.  As a citizen with clean records,

   6   family ties, and sound social relations, I was expecting to be

   7   released on bail so that I can prepare my defense against the

   8   tremendous charges in the comfort of my home with my family,

   9   friends and members of my community, as the law provides.

  10            Even though I was considered by the law to be

  11   innocent, I was treated from day one like any other convicted

  12   killer, rapist, drug dealer or child molester, and even worse.

  13   I was put under conditions that convicted prisoners who break

  14   the rules inside the prison are subject for.

  15            This kind of treatment continued for 28 months before

  16   the trial date.  During that whole time and under such cruel,

  17   inhumane conditions, I was expected to prepare for my defense,

  18   away from my home, family and community.

  19            When an innocent person is treated worse than

  20   convicted criminals for such a long period, how do we expect

  21   his physical, mental and emotional condition to be?  How do we

  22   expect his preparation for the trial to be?  How do we expect

  23   him to be when he reaches the trial date?

  24            Yes, the law says you are presumed innocent, but we

  25   will treat you worse than convicted criminals.  That is

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   exactly how I was treated since I was arrested.

   2            In their representation, my counsel spent a great

   3   deal of their time and effort to get me out on bail so that I

   4   can be under normal conditions as the law provides.  They knew

   5   from their extensive experience that this kind of legal case,

   6   that covers more than ten years of my life and extends to

   7   several continents, that they needed every proportion of

   8   assistance their client can provide.

   9            During those 28 months, at times I was able to

  10   provide them with some assistance, other times it was too

  11   difficult to do so.

  12            It is not fair, and I hope it will not happen to any

  13   other people, it is not fair to ask anyone to prepare his

  14   defense against such tremendous charges while being away from

  15   his family and loved ones and under onerous, unprecedented

  16   conditions for 28 months and another 5 months of trial time.

  17            The government opposed my right for bail, saying that

  18   I was a danger to the community and that they will prove their

  19   allegations at the trial.  Well, my records in the U.S. since

  20   1978 shows the opposite of what they alleged then, and at the

  21   trial they did not bring one evidence or action showing me to

  22   be a danger to the community.

  23            The jury found me guilty on every charge depending on

  24   what they saw and heard in court, but this does not change the

  25   fact that I am innocent and that I was not given a fair or

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   just chance to prepare my defense.

   2            Today, while I am here in front of you, I am not the

   3   same person who was arrested three years ago.  No one can be

   4   the same after three years of unfair treatment.  Yet, I am

   5   still and remain the devout Muslim who is following the rules

   6   of our creator, who can see and hear us all the time.  I am

   7   still the person who avoids radical solutions and acts, as I

   8   did in the past.  I am still the loving and caring son of my

   9   parents, husband of my wife, and father of my children who is

  10   trying to keep family relations through letters and phone

  11   calls.

  12            Finally, I would like to thank my family, who

  13   supported me during the past three years and continuing to do

  14   so, to thank my counsel, who were very sincere and active in

  15   their representation in spite of the unusual limitations they

  16   were facing from the system, to thank all my friends, brothers

  17   and sisters in the Islamic society in all the United States

  18   who supported me and my family and continuing to do so, to

  19   thank the one witness who, in spite of the government agent's

  20   harassment to him, as to many other potential witnesses, he

  21   still took the witness stand in my behalf.

  22            Again, I would like to thank the Court for giving me

  23   the opportunity to speak on my behalf.  And for those who

  24   brought me to the Grand Jury under stressful, unusual

  25   conditions and those who lied on the witness stand at the

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   trial, for all those I say that God will show them that they

   2   were wrong.

   3            One last word.  There is nothing wrong or shameful

   4   that I did to apologize for, and I hope that one day the truth

   5   will come out clear.  If not in this life, then the day of

   6   judgment is the true court of justice, where the judge is God

   7   who knows what everyone hides in his or her heart.

   8            We all are going back to God after death, so let us

   9   seek his teachings and guidance for a successful end.

  10            Thank you.

  11            THE COURT:  Thank you.

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                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1            THE COURT:  Does the government wish to say anything?

   2            MR. FITZGERALD:  Yes, your Honor.  Your Honor, it has

   3   long been a practice in this court that most times prosecutors

   4   do not speak at sentencing, and I did not intend to.  I think

   5   most of the time we let people, no matter what they have done,

   6   pretend to love their country, pretend to love their god,

   7   pretend to be devoted to their family, and bite a lip and let

   8   it go quietly through the night.  But in this case it is

   9   different, because in this case the crime, the horror of what

  10   Mr. El Hage and his associates did is beyond imagination, and

  11   the method by which Mr. El Hage did it was his pretense, his

  12   fraud, his pretension to being an American citizen and to

  13   following the rules.

  14            He has talked today about choice, and I think one

  15   thing we should remember about choice is, Mr. El Hage made a

  16   lot of choices.  He chose to work with Al Qaeda, he chose to

  17   work with a terrorist group, and he chose to lie to his

  18   government.  In September of 1997, before Mr. El Hage ever

  19   went to the grand jury, he was brought to the government's

  20   office with an agent and myself.  I recall quite clearly, the

  21   choice was put to him.  He was told then that he was involved

  22   with Usama Bin Laden and the government knew it, that he knew

  23   the secrets of Usama Bin Laden, that Usama Bin Laden would

  24   kill Americans, would kill men, women and children, and it was

  25   up to him as an American, as a father and as a Muslim to help

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   stop that.  He was told that if he didn't cooperate, some day

   2   he might face jail.  He would be separated from the family he

   3   now claims he wishes he could be with and he does, but he

   4   chose terror and hatred over his family.  He chose to lie.  He

   5   lied repeatedly.  He lied that day.  He lied in the grand

   6   jury.  And he even lied under oath after the bombings in

   7   August of 1998.

   8            We have heard here today from his counsel that he is

   9   honest and straightforward.  We have heard that he is

  10   religious and devout.  We have heard him just say now that he

  11   is a devout Muslim.  I submit to you that though he does love

  12   his family, he chose hatred and terror over his family

  13   repeatedly.  He had a choice, and he chose to go with those

  14   who would kill rather than to help himself, his family, his

  15   country.  He claims to be a citizen but he is not an American.

  16   He claims to be a religious man, but he is not a true Muslim.

  17   The true Americans, the true Muslims, the true family men, he

  18   has seen.  He saw them on the witness stand at the trial, he

  19   saw them testify here today, and, frankly, those are the

  20   people he helped to kill.

  21            He has come into court today the way he came into the

  22   grand jury and into the trial, with no remorse, no shame, and

  23   no conscience.  But he should leave without pretense.  The

  24   world has now seen, from the evidence in this courtroom, what

  25   the jury saw, and what he did is, he betrayed his country, he

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   betrayed his religion, he betrayed humanity by his behavior

   2   for so many years, and he should walk out of this courtroom,

   3   he should go to a jail cell that is really of his creation,

   4   and he should recognize that the world knows exactly what he

   5   did.

   6            THE COURT:  Thank you, Mr. Fitzgerald.

   7            Mr. El Hage, I won't say anything with respect to

   8   your continued protestations of innocence because there was a

   9   five-month trial and the jury, after very careful

  10   deliberations, the nature of which I have already described,

  11   unanimously found you guilty beyond a reasonable doubt, and

  12   they did so based on evidence.

  13            The court imposes a sentence of life imprisonment on

  14   Counts 1 and 3; 20 years' imprisonment on Count 5, concurrent

  15   to Counts 1 and 3; five years' imprisonment on each of Counts

  16   20, 287 through 289 and 291 to 305, to run concurrently to

  17   Counts 1, 3 and 5.

  18            Although the sentence is of life, I nevertheless

  19   impose five years' supervised release on Counts 1 and 3 and

  20   three years' supervised release on Counts 5, 287 to 289, and

  21   291 to 305.  The terms of supervised release are to run

  22   concurrently.

  23            I order payment of a special assessment fee of

  24   $2,100, which is a mandatory assessment.  I include you in the

  25   restitution order the contents of which we have already

                  SOUTHERN DISTRICT REPORTERS (212) 805-0300

   1   discussed today and yesterday.  I impose no fine because of

   2   the restitution order.

   3            I advise you that you have a right to appeal your

   4   sentence, your conviction and sentence, and if he is so

   5   instructed, the Clerk of the Court will enter a notice of

   6   appeal on your behalf.

   7            I order dismissed any open counts in which you were

   8   named in any superseded indictments.

   9            Is there anything further with respect to El Hage?

  10            MR. KARAS:  No, your Honor.

  11            MR. SCHMIDT:  No, your Honor.

  12            THE COURT:  We are adjourned.


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