4 June May 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 58 of the trial, June 4, 2001.
See other transcripts: usa-v-ubl-dt.htm
6964
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 June 4, 2001
8:30 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
6965
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 MICHAEL GARCIA
Assistant United States Attorneys
5
FREDRICK H. COHN
6 DAVID P. BAUGH
LAURA GASIOROWSKI
7
DAVID RUHNKE
8 Attorney for defendant Khalfan Khamis Mohamed
9
10
11 (In open court)
12 THE COURT: Good morning. Let's begin.
13 I received a joint request with respect to the
14 scheduling of the penalty procedures with respect to defendant
15 KK Mohamed, and that is that assuming that a decision is
16 rendered by the jury prior to such time that those proceedings
17 begin on the 18th, and I have no problem with that day and
18 that request is granted.
19 When we were last together the Court sustained the
20 government's objection to a document which we labeled Court
21 Exhibit A which is captioned Extreme Birth Deformities, but we
22 did not I think adequately identify the group of photographs
23 as to which the Court also sustained objection and that group
24 consists of a document headed, The Children of Iraq in
25 Pictures.
6966
1 MR. BAUGH: Excuse me, your Honor, may I withdraw
2 those? I mean it would just --
3 THE COURT: You may withdraw them.
4 MR. BAUGH: I'll withdraw them.
5 THE COURT: You are withdrawing all of those.
6 MR. BAUGH: Yes, the photos that you have there, the
7 deformities and the other two photos are withdrawn.
8 THE COURT: All withdrawn.
9 MR. BAUGH: Yes.
10 THE COURT: All withdrawn, very well. I am going to
11 return them.
12 I have, as requested by the parties reviewed the
13 video cassette of the 60 Minutes broadcast on which Madeline
14 Albright appeared. The purpose of this morning, as I
15 understand it, was to review specifically what exhibits the
16 defendant proposes to introduce this morning and to hear any
17 specific objections by the government. I take it that the
18 defendant has identified and exhibited to the government any
19 and all exhibits it intends to introduce today.
20 MR. BAUGH: That's correct, your Honor.
21 THE COURT: What is the sequence of exhibits that you
22 seek to introduce?
23 MR. BAUGH: The first one we have, we have a tape
24 qued up here. The part we're going to have is on reflection
25 this week I think we have more than an hour's worth of tape, I
6967
1 know we do, I have an hour's review, so maybe I'm going to ask
2 the Court if we can delay starting or we can do some of these
3 over the lunch break, but we have more than an hour's worth of
4 tape.
5 THE COURT: Is that the first order of business
6 before the jury, the playing of these tapes?
7 MR. BAUGH: No, your Honor.
8 THE COURT: What is the first order of business?
9 MR. COHN: The first order of business, I think only
10 partial because I'm waiting for some more documents from the
11 government, will be on the role in the offense, and that will
12 take me about a half hour. I've given the government what I
13 intend to use. It will consist first of just reminding the
14 jury of where they can find evidence during the principal
15 trial of Salim on Odeh. There will be some material culled
16 from a prior --
17 THE COURT: Let me interrupt you. Did the government
18 have objections to the proposed --
19 MR. COHN: I'm not going to read them, just give the
20 references.
21 THE COURT: Does the government have any objections
22 to that?
23 MR. FITZGERALD: Not in substance, Judge. Some of it
24 may be argument for summations, but not in substance.
25 THE COURT: All right. Then following that what
6968
1 occurs.
2 MR. COHN: Then we have some extracts from Odeh's
3 Pakistan statement, Odeh's Pakistan statement made in Pakistan
4 that was not admitted in the trial. There are two extracts
5 which we've given the government and we're just going to say
6 of another statement made by Odeh. That's how we're going to
7 identify it, if that's all right with the government. I
8 thought about it, but I'm open to however the government wants
9 that identified for the jury. We'll just tell the jury that
10 it's a statement made by Odeh which was not produced in the
11 trial.
12 THE COURT: One at a time. I want to be specific.
13 Does the government have any objection to that?
14 MR. FITZGERALD: I think, your Honor, the jury
15 probably should just be told there was a statement made in
16 Pakistan so the jury is not confused as to whether it's a
17 statement made to the American government.
18 MR. COHN: That's fine. I don't care how they do it.
19 I just need to do it.
20 THE COURT: In Pakistan.
21 MR. FITZGERALD: To Pakistan officials.
22 THE COURT: The next order of business.
23 MR. COHN: Then we're going to read some extracts
24 from the original form of this indictment as to Salim and
25 Odeh, stuff that was we believe was carved out of what was
6969
1 presented, because of Salim being severed, and so we're going
2 to read those to the jury.
3 THE COURT: Any objection?
4 MR. FITZGERALD: No, Judge.
5 MR. COHN: And then we will be reading from the
6 criminal complaint as to Fawwaz certain extracts of that
7 complaint, and the two others we have that, and that is all
8 digitized. The government, because of a late request from me
9 and I apologize to the Court, hasn't given me the other two
10 complaints as to the other people. They will not be
11 digitized. We will just read those portions of the complaint
12 that are fact specific to those people. And then the
13 government and I are working on a stipulation as to the issue
14 of the extradition of Salim and the three proposed people to
15 be extradited from England being conditioned on nonimposition
16 of the death penalty. That will be role in the offense. It
17 may come in in segments because of what I don't have, but
18 mostly it will come in first --
19 MR. FITZGERALD: No objection in substance and
20 Mr. Francisco is looking for the complaints and we'll finalize
21 the stipulation hopefully over lunch.
22 THE COURT: Following that.
23 MR. BAUGH: We would ask the Court to take judicial
24 notice of the Code of Federal Regulations 501.2, national
25 security cases. We'll probably mark it as an exhibit and
6970
1 publish it to the jury.
2 MR. FITZGERALD: Judge, I think the relevant
3 provision should be 501.3 I think the national security cases
4 are usual espionage cases where you don't want a spy to
5 communicate.
6 MR. BAUGH: That's correct. Followed by the Madeline
7 Albright tape, 60 Minutes tape.
8 THE COURT: Objection to Madeline Albright tape?
9 MR. FITZGERALD: Not pressing the objection on that
10 tape.
11 THE COURT: Very well. I could have slept a little
12 later this morning.
13 MR. BAUGH: Followed by the testimony of Ramsey
14 Clark.
15 THE COURT: Testimony of Ramsey Clark on what subject
16 now?
17 MR. BAUGH: Excuse me, your Honor?
18 THE COURT: On what subject matter?
19 MR. BAUGH: He has visited Iraq every year for the
20 last ten years, and the facts of the sanctions, what he has
21 seen. Also, his, he was going to be asked about his
22 conversations, his knowledge about what people in that part of
23 the world are saying about the Iraqi sanctions, what is
24 routine conversation, what people know about it.
25 THE COURT: Any objection by the government?
6971
1 MR. FITZGERALD: Not in the concept.
2 THE COURT: Not to the concept. Obviously that's all
3 you can deal with.
4 MR. FITZGERALD: Also, I just want to make sure his
5 views on the death penalty are not elicited for reasons having
6 to do with the other videotape deposition we saw where the
7 person was asked and the witness said that he opposes the
8 death penalty. I think that obviously should not be elicited.
9 MR. BAUGH: I know I can't do that.
10 THE COURT: Would you alert Mr. Clark to that?
11 MR. BAUGH: I will, your Honor. I will tell the
12 Court that he -- well, okay, he has done a lot of, he has
13 proposed a lot of legislation in opposition to the death
14 penalty.
15 THE COURT: That's irrelevant, isn't it?
16 MR. BAUGH: Okay. The next item we would introduce
17 would be the Defense Intelligence Agency memo, Iraqi Water
18 Treatment Vulnerability.
19 THE COURT: Any objection? That we marked as Court
20 Exhibit G of may 31st.
21 MR. FITZGERALD: I have a relevance objection in that
22 Mr. Baugh has been arguing that that proves that the American
23 government targeted the facilities. Why was an assessment
24 made of what is going to happen based on what were damaged and
25 I think there is a danger of prejudice outweighing the
6972
1 probative value.
2 THE COURT: It specifically states subject, Iraq
3 water treatment vulnerabilities. I'll allow it.
4 MR. BAUGH: The next item would be the Geneva
5 Convention protocol one, outlawing the targeting of such. I
6 should tell the Court before we even get to the DIA document
7 Mr. Clark will testify that he has seen bomb damage to water
8 treatment facilities during his tours of Iraq.
9 THE COURT: Any objection to the Geneva?
10 MR. FITZGERALD: Yes, Judge.
11 THE COURT: And the basis of the objection is?
12 MR. FITZGERALD: I think it's irrelevant. It's not
13 been shown to be a motivating factor for al-'Owhali what his
14 opinion of the Geneva Convention, is and I think we're getting
15 way beyond the scope of what al-'Owhali's subjective belief is
16 which might motivate a subjective determination of a
17 collateral matter which is whether or not the UN is complying
18 with the Convention.
19 THE COURT: I've given that matter a lot of thought
20 and also the relationship between that and my ruling that the
21 divisions of the penal code defining terrorism were not for
22 the jury because that was a legal question. On the other
23 hand, my understanding of the Geneva Convention is that it
24 represents a codification of accepted principles of rights and
25 behavior and I'll allow it.
6973
1 MR. BAUGH: We would follow this with a 64 minute
2 tape called --
3 THE COURT: You are going to play a 64 minute tape?
4 MR. BAUGH: I'll give you a summary of it, it if
5 you'd like.
6 THE COURT: Give me a summary.
7 MR. BAUGH: Briefly, your Honor, it tracks the
8 development of tension in the Middle East leading up to
9 periods of nationalism in the 1950s, the development of Sudam
10 Hussein and now the Middle East has moved to the situation it
11 is in now.
12 THE COURT: Who is the producer of the tape?
13 MR. BAUGH: It's a promotional documentary and it was
14 released in New York a couple of weeks ago. We have the
15 cartridge here that it comes with.
16 THE COURT: Has the government seen it?
17 MR. FITZGERALD: Yes, Judge, we would object. I do
18 not think, I think it's a biased video. It's produced by an
19 entity called Free Will Productions, but I note, for example,
20 in addition to including some morbid photographs and
21 photographs of dying babies, it has wholesale speculation
22 unknown male saying there is a secret agenda he does not know.
23 There is an investigative reporter.
24 THE COURT: That would be sometime this afternoon in
25 any event. How long do you anticipate Ramsey Clark's
6974
1 testimony to take?
2 MR. BAUGH: I think we're clearly up to noon by now
3 before we even get to that tape.
4 THE COURT: I'll view the tape during the lunch
5 recess.
6 MR. BAUGH: All right, your Honor.
7 THE COURT: Let me come back to the Madeline Albright
8 tape.
9 MR. BAUGH: 60 Minutes tape.
10 THE COURT: The 60 Minutes tape. That was done in
11 1996?
12 MR. BAUGH: Yes.
13 THE COURT: Judging by what it said there it was at a
14 time when there was a total embargo on Iraqi oil and prior to
15 the time that there was a partial lifting of sanction also
16 permitting the sale of some Iraqi oil the proceeds of which
17 were to be used for food and medicine and so on, and I'm
18 wondering if some sense of completeness or fairness would
19 dictate that the jury be advised of that.
20 MR. BAUGH: Two issues, there, your Honor. One cited
21 by my co-counsel that the government -- Denis Halliday is
22 another tape that coming in, that we're going to discuss later
23 on in a few minutes which the government has seen. Mr.
24 Halliday was the humanitarian director for the United Nations
25 who resigned. He explained the oil for food program and it is
6975
1 not like what most of us lay people to that issue understand,
2 and I'll tell you briefly the oil for food program is set up
3 whereby Iraq is permitted to sell certain amounts of oil that
4 it manufactures. The money from the sale, all their sales is
5 put in the government with the United Nations. Iraq can then
6 ask for permission to purchase things and if the contracts are
7 approved, the money is released. The first contract, which
8 was for rice, took 27 months to clear.
9 THE COURT: What you're saying is that there is going
10 to be further presentation to the jury with respect to the oil
11 for food, and that the situation, whether it's effective or
12 not effective, the situation which existed as of the time of
13 the Albright tape is no longer the present situation.
14 MR. BAUGH: That's correct, Judge.
15 MR. FITZGERALD: Except we have a vigorous objection
16 to the Halliday tape. That tape was taken I believe on May
17 21st of this year. It's styled a deposition except we weren't
18 told about it and we weren't there. So it was a filmed --
19 THE COURT: Deposition of who?
20 MR. FITZGERALD: Denis Halliday. So my understanding
21 is that if the defense wishes to offer his testimony through
22 videotape that we received late last week, and he testified to
23 a number of things, his opinion of international law, and it
24 basically it's a person we have no opportunity to question.
25 And also gives his opinion on the death penalty, among other
6976
1 things. It is speculation about the effects of the depleted
2 uranium weapons and his personal definition of genocide. He
3 describes the no fly zones as being genocide. It comes from
4 his own opinion and we would object to that tape.
5 MR. BAUGH: Your Honor, Mr. Halliday contacted
6 Ms. Morales on 12 o'clock on May 21st and said: I'm leaving
7 for Ireland at 3. If you want my testimony, you have to come
8 get it today. We contacted the court reporters of this court,
9 attempted to set up a deposition. We were unable to get one.
10 We called several individual videograph companies. We finally
11 found one that said they would show up, and we could not get a
12 court reporter either from the court or from a private firm.
13 We went over. We asked him some questions, about
14 forty minutes worth I believe. He answered them. I did ask
15 him as he told me he wanted to he is opposed to terrorism. I
16 asked him on the tape whether or not, what was his personal
17 stance on terrorism. He said, I do not want people to think
18 I'm endorsing terrorism. I'm a Quaker. I am opposed to the
19 death penalty. The only reason I am here doing this now is
20 because of the posture of the death penalty in this case. I
21 am opposed to all forms of violence. And that was the
22 statement that he made. I did not ask him for his view on the
23 death penalty. I asked him for his view on terrorism.
24 THE COURT: There are two aspects of the objection.
25 One is whether there are portions of it which should be
6977
1 redacted, and the other is whether the lack of an opportunity
2 on the part of the government to examine or cross-examine is a
3 valid objection. Is Mr. Halliday presently available?
4 MR. BAUGH: No, unfortunately, he is in either
5 Ireland or somewhere in Central America.
6 THE COURT: When was the last contact with
7 Mr. Halliday?
8 MR. BAUGH: May the 21st just before he got in the
9 cab to go catch an airplane to Ireland.
10 THE COURT: But do we know for a fact he's not back?
11 MR. BAUGH: He will not be available until June 12th.
12 Believe me he is an impressive witness and I would have rather
13 had him here. However, your Honor, I will call to the Court's
14 attention that in death penalty cases in the past under the
15 definition, believe me it is not limited to motivation of the
16 defendant. Circumstances of the offense, by example, we have
17 had cases, I'm familiar with one case in Florida plus the case
18 I had in Virginia where the defendant in a drug murder crime
19 was, we had been permitted in the past to show the
20 circumstances of the offense by bringing in videotape of the
21 project in which he was raised, records pertaining to them.
22 Yes, I'm seeing your head shake --
23 THE COURT: Do we have a written transcript of the
24 videotape?
25 MR. BAUGH: No, we do not, your Honor.
6978
1 THE COURT: That's very difficult because if we're
2 going to deal with redactions it would be much --
3 MR. COHN: Perhaps while some of this is going on
4 after my presentation Ms. Campion and I can try and do
5 something for the Court on that. We'll try and get at least
6 a, if not a verbatim transcript, at least one that will let us
7 identify parts of the tape so that we can -- if that will be
8 helpful, we'll try.
9 THE COURT: Are you going to finish today?
10 MR. BAUGH: I'm certainly striving to yes, your
11 Honor.
12 THE COURT: You think you might finish today.
13 MR. BAUGH: Yes, I'm trying to.
14 THE COURT: It may very well be that we'll have to
15 defer your closing until tomorrow so that I can review a
16 transcript, and then if the tape has to be edited somebody
17 will have to do the editing.
18 MR. COHN: What we'll do, your Honor, is I'll go over
19 to audiovisual because pause we don't have a tape player and
20 that's where you'll be able to find me.
21 MR. BAUGH: We have a charging conference at 4:30.
22 THE COURT: Let me interrupt. I take it from your
23 presentation on Thursday and what you've just said that
24 Mr. Al-'Owahli is not going to testify. Is that correct?
25 MR. BAUGH: That is correct, your Honor.
6979
1 THE COURT: Is it not appropriate that he be
2 allocuted as to that?
3 MR. BAUGH: Would you like to do that now?
4 THE COURT: Yes.
5 MR. BAUGH: All right.
6 THE COURT: Mr. Kenneally, will you administer the
7 oath to Mr. Al-'Owahli.
8 MR. BAUGH: You want me to bring the interpreter up
9 here, your Honor.
10 THE COURT: All right, yes.
11 (Defendant sworn)
12 THE COURT: Mr. al-'Owhali, your attorney has advised
13 me that it's your intention not to testify at this penalty
14 phase of these proceedings. Is that correct?
15 DEFENDANT AL-'OWHALI: Yes.
16 THE COURT: Do you understand that you have a right
17 if you wish to testify at these proceedings?
18 DEFENDANT AL-'OWHALI: Yes.
19 THE COURT: You understand also you have a right not
20 to testify in which case the jury will be advised that it
21 cannot hold that against you. Do you understand that?
22 DEFENDANT AL-'OWHALI: Yes.
23 THE COURT: Mr. al-'Owhali, you were present on
24 Thursday, and present this morning while your attorney
25 summarized the positions that will be taken on your behalf in
6980
1 these proceedings. Have you followed and understood the
2 nature of the arguments that will be advanced on your behalf?
3 DEFENDANT AL-'OWHALI: What is the impact of my
4 understanding or lack thereof?
5 THE COURT: In all criminal trials the Court is
6 concerned that if the outcome of the proceeding is against the
7 defendant that the defendant not thereafter say certain things
8 were done or were not done against his wishes or contrary to
9 instructions which he had given to his attorney, and it always
10 becomes difficult then to try to go back and understand the
11 state of the mind of the parties at some earlier date; and
12 that's the impact of your answer to the question, that I want
13 the record now to reflect whether anything which your counsel
14 proposes to present to this jury is contrary to any
15 instructions that you've given to them.
16 MR. BAUGH: May I consult with my client a second,
17 Judge?
18 THE COURT: Excuse me?
19 MR. BAUGH: May I consult with my client, or, better
20 still, I should tell this Court that your question, my client
21 is, our client is relying upon our representations to him as
22 counsel, and answering his questions, and he's basing his
23 decisions upon what we are advising him. So, therefore, any
24 decision he is making is going to be, unfortunately for your
25 concern, depending upon the advice of counsel and that advice
6981
1 is sufficient.
2 THE COURT: I have no problem with that, but what I
3 really want to do for the protection of everybody in the event
4 that there should be any posttrial applications is to make
5 sure that what is happening, whether based on your advice or
6 Mr. al-'Owhali's independent conclusion is in accordance with
7 his wishes, and that nothing is happening which is contrary to
8 any explicit instructions that he's given.
9 MR. BAUGH: If I may, your Honor, are you asking my
10 client are we doing anything that he told us not to do or
11 refraining from doing something that he has told us to do.
12 THE COURT: Exactly.
13 MR. BAUGH: Thank you.
14 DEFENDANT AL-'OWHALI: I accepted the defense that
15 would be used on my behalf at this stage of the proceedings
16 with the condition that it will not be used against me in any
17 future proceedings or retrial.
18 THE COURT: I'm not sure I understand the nature of
19 that proviso.
20 MR. BAUGH: When we were in chambers in the robing
21 room last week, your Honor, before we started I advised the
22 Court that we had advised our client that we are going to take
23 certain positions predicated upon the idea because the jury
24 has found him guilty, that for purposes of this proceeding the
25 acts that are alleged have occurred.
6982
1 THE COURT: Yes.
2 MR. BAUGH: He is not conceding, I mean he is not
3 conceding that the actual facts did occur. Therefore, we
4 don't want the Court to, or any future tribunal to assume that
5 when I get up and say, you have found the defendant guilty
6 that means he has committed these things, that should not be
7 construed as an in-court confession should there be a retrial.
8 THE COURT: These entire proceeding are based on the
9 fact that this jury has found the defendant guilty.
10 MR. BAUGH: That is correct.
11 THE COURT: Does the government have any objection to
12 that?
13 MR. FITZGERALD: No, Judge.
14 THE COURT: And subject to that then, is everything
15 in accordance with your instructions to your attorney?
16 MR. BAUGH: Mr. al-'Owhali has directed, and this is
17 for us, and it should be of concern to the Court, but
18 Mr. Al-'Owahli has said he does not wish to have the excerpts
19 from the Odeh statement admitted at this time and we would
20 like to discuss it before we get to that.
21 DEFENDANT AL-'OWHALI: No problem.
22 THE COURT: Very well. Now, we interrupted your
23 presentation with respect to -- with respect to the Halliday
24 tape. I am going to defer on that until I've had an
25 opportunity to review either a paper transcript or preferably
6983
1 a transcript. And then what else?
2 MR. BAUGH: Excuse me. Did you want me to put the
3 name of the interpreter on the record for that most recent
4 colloquy?
5 THE COURT: Yes, all right.
6 MR. BAUGH: That was Mr. Toufi Maged. After the
7 Denis Halliday tape there is a document called The Iraq Fact
8 Sheet, which is a document obtained off the Internet from the
9 United States Central Command just as to the per capita
10 income, the rate of exchange and other information concerning
11 Iraq.
12 MR. FITZGERALD: No objection.
13 MR. BAUGH: Then there is an excerpt from a tape
14 called Silent Weapon The Effect of the Iraqi Embargo. It is
15 prepared by a religious group. We have taken and excerpt from
16 starting at Ms. Rania Masri, and she makes a statement and it
17 goes to a tour of the hospital, ends with the children in that
18 hospital. We would stop it at that point because thereafter
19 are a group of, a selection of religious statements as to why
20 religious groups should oppose the United States actions which
21 we think is inappropriate for this trial.
22 MR. FITZGERALD: Judge, we would object on two
23 grounds. First, I think it's redundant of what he has already
24 in the 60 Minutes tape and the Clark testimony and has
25 disturbing pictures of children in a hospital. We were going
6984
1 to offer the Ramsey Clark and 60 Minutes tape we have the Bin
2 Laden statements. I think this is just more on top of the
3 same which --
4 THE COURT: Redundancy I think is not a very strong
5 objection in light of the nature of these proceedings. So if
6 the only objection is redundancy, why then I won't, but I'd
7 like to see it.
8 MR. BAUGH: Yes. From that point we would, we have a
9 tentative, I think we have an agreement, a stipulation that my
10 client on the date of offense was 21 years of age which of
11 course the government is required to prove, and also we have a
12 mitigator concerning his youth.
13 The next one would be a stipulation that we have
14 proposed, the United States has tentatively agreed to it, as
15 of ten o'clock last night on the phone, concerning my client's
16 indoctrination at an age to conservative Muslim teaching.
17 It's a four-part stipulation.
18 MR. FITZGERALD: We're not stipulating to
19 indoctrination. We're stipulating to what it is that
20 Mr. Al-'Owahli told Agent Gaudin on that topic.
21 MR. BAUGH: Thank you. The next one is up in the
22 air. There is an exhibit 1600T which was previously admitted
23 in evidence the same being a fatwa, a very lengthy fatwa from
24 Usama Bin Laden. Then there is a transcription of the --
25 THE COURT: But you're going to introduce that in
6985
1 evidence?
2 MR. BAUGH: I think we're going to reintroduce it.
3 For purposes of this proceeding we'll use the same numbers.
4 THE COURT: I think there are many, many copies of it
5 sitting on the cabinet in my robing room if you want to give
6 it to the jury.
7 MR. BAUGH: I can add it to the eight copies I have,
8 yes. Then there is a transcription of the ABC interview with
9 Usama Bin Laden. I have been told it has been introduced. I
10 know the tape was introduced. I don't know whether the
11 transcript was or not. We need to find the exhibit number but
12 we do have copies. Followed with another fatwa dated February
13 23, 1998 from the leader of the Islamic group published in Al
14 Queds.
15 THE COURT: Any objection to the fatwas?
16 MR. FITZGERALD: No, your Honor, I believe some of
17 them are in evidence already.
18 MR. BAUGH: We would then offer for reference, and of
19 course they can keep them if they'd like, these books --
20 THE COURT: No, they can't keep them if they like.
21 MR. BAUGH: Okay. We would offer this purely as
22 reference in its entirety. It is my position under 3593 that,
23 and also concerning Mr. Al Fadl's testimony, that to really
24 understand the efforts of Al Quaeda, also the efforts of my
25 client and his, and this is straight motivation, that there
6986
1 must be at least some understanding of the studiousness of the
2 religion of Islam. Theoretically I believe a witness could
3 get on the stand and read this in its entirety.
4 THE COURT: Well, in what court do you think the
5 Judge would permit a witness to read a 250 page book to the
6 jury? Not any court I'm aware of.
7 MR. BAUGH: In a case wherein, and this Court is well
8 aware of, and I, yes, I know I was, and I'll just repeat
9 myself, there are a lot of misconceptions about Islam.
10 THE COURT: But I asked you on Thursday whether you
11 were representing that the views expressed in that book
12 represent the views of your client and you answered in the
13 negative.
14 MR. BAUGH: Your Honor, I can tell the Court that, I
15 can tell the Court that this is -- excuse me.
16 (Pause)
17 MR. BAUGH: My client advised me of something which
18 I'm going to have to edit a bit because of some of his words
19 were incorrect. However, my client advises me that this book
20 is a fundamental or basic interpretation of Islam.
21 Now as you read the fatwas and other how shall we say
22 developments in the philosophy and theory behind it, there
23 would be some difference it might vary from country to country
24 or sect to sect but as a basic and fundamental outline the,
25 some of the things that I have read from this book he says
6987
1 they would suffice for basic understanding, and I can tell the
2 Court --
3 THE COURT: I had suggested to you earlier that it
4 would be very helpful and very much more productive, if I may,
5 venture that observation, if you were to highlight for the
6 jury in writing those passages or those pages or chapters that
7 you believe are particularly pertinent. If you tell them, I
8 ask that you read the book, this is a very conscientious jury,
9 they will read it 250 pages, and that probably will take three
10 to four days.
11 MR. BAUGH: First, I wouldn't ask them --
12 THE COURT: Mr. Cohn is quarreling by body motion to
13 the Court's estimate of the length of time it would take. But
14 how long do you think it takes to read a 254 page book
15 nonfiction?
16 MR. COHN: How long do I think it would take the
17 average person, or how long would it take me, and I think the
18 average person can finish that book in three or four hours.
19 MR. BAUGH: Yes, I agree.
20 MR. COHN: We're not requiring that they memorize the
21 book, although I'm sure there are people who would like me to,
22 but I don't think, I think that the Court's estimate is a
23 gross overestimate, your Honor. Yes, it would be some hours.
24 It might be as much as a full working day, although I doubt
25 it.
6988
1 THE COURT: I will require that there be some
2 statement as to the chapters or portions of the book which you
3 regard as being particularly pertinent.
4 MR. BAUGH: At this time, your Honor, I must make an
5 objection to the Court's --
6 THE COURT: I am not precluding you from asking the
7 jury to read the whole book. I am requiring that you
8 highlight for them those portions that you think are
9 particularly relevant. I haven't seen the book.
10 MR. BAUGH: Your Honor, I must object.
11 THE COURT: May I see the book?
12 MR. BAUGH: Yes. I must object to you putting words
13 in my mouth. I have never said, nor would I ever tell the
14 jury, you have to read this book, or, I want to you read this
15 whole book. You have been saying that now on three different
16 occasions and I have never made that statement. It's offered
17 as a --
18 THE COURT: What I have said is, yes, I have said
19 this is a conscientious jury, and if you tell them you want
20 them to read the book --
21 MR. BAUGH: Which I will not do.
22 THE COURT: Why are we arguing. If you give them the
23 book and you're not going to tell them to read the book, why
24 are you giving it to them?
25 MR. BAUGH: I'm offering this to them as a resource.
6989
1 If they have questions about the religion that they feel are
2 necessary for them to answer in order to determine the
3 existence of aggravators or mitigators or to weigh my client's
4 motivation or his intent. I can't put an Imam back there. I
5 can't call the Psychic Friends and figure out what their
6 questions would be. Therefore, I must take a rudimentary and
7 basic book and offer it to them for whatever assistance it
8 would give them.
9 I would submit that not one word in here, I mean
10 there are some things in here I don't particularly care for,
11 but that does not mean, this is a very popular book, it is a
12 best seller in Barnes & Nobels, probably because I bought 18
13 copies last week. It's helpful.
14 THE COURT: What's the government's position on this?
15 You have questionnaires written by all of these jurors. I
16 take it that you are carefully studying them and you have a
17 sense as to the ability to write English which has some
18 relationship to the ability to read English. There are
19 chapters here, for example, on Islamic diets. Are they
20 particularly relevant?
21 MR. BAUGH: To me, no, but I don't think you're going
22 to let me be on the jury. I can't imagine that that would be
23 relevant to anything. I can't.
24 THE COURT: I don't know how much time you want them
25 to read the chapter on womens rights. I suspect you don't
6990
1 want them to spend any time reading the chapter on womens
2 rights.
3 MR. BAUGH: You can't, well, I don't care whether.
4 MR. COHN: It's got to be a very short chapter.
5 MR. BAUGH: No, it's not. Actually, it's a very
6 involved chapter. Excuse me, your Honor, that shows the lack
7 of understanding of the religion.
8 I have always thought with my religion indoctrination
9 that it was a gender oppressive, and it's not, it's very
10 progressive. Now I should tell you that obviously when you
11 see what is happening in some countries, when you don't, when
12 you get at the rewrite, it gets enforced different but
13 according to what is cited in the Koran, Mohammed believed in
14 equal rights for women, contrary to what people may think,
15 according to this book.
16 THE COURT: You want go to the to the jury on that
17 issue?
18 MR. BAUGH: On what? No, I don't.
19 THE COURT: Now there is one chapter here called the
20 Pillars of Islam.
21 MR. BAUGH: That's a very important chapter I think.
22 THE COURT: That is the important chapter, isn't it?
23 MR. BAUGH: That's important.
24 THE COURT: Architecture, mosques and diets and so
25 on?
6991
1 MR. BAUGH: I can't believe that these people, if
2 they thought it was a waste of time, would read one more page.
3 I mean I don't want to cite your own words, but to quote the
4 Judge in this case, it's a very conscientious jury, and I
5 can't believe they are going to waste the Court's time or
6 their own time, and I'm sure I find it unimaginable that they
7 will say, boy, we've got to study this diet thing, but I can't
8 imagine that's going to happen. I don't see how it hurts, and
9 I don't, and but if somebody wants to read it, more power to
10 them.
11 MR. FITZGERALD: Judge, I think being a conscientious
12 jury if we give them a whole book there is some sort of
13 implicit representation that the whole book is worth drawing
14 attention to and they may sit down conscientiously and be led
15 astray into issues concerning diets that are not the core of
16 this case.
17 We would object, absent some guideposts indicating
18 that your attention is drawn to the following chapter or
19 chapters. I think that while it may be a couple of hundred
20 pages, it's also very detailed. I don't know how long it
21 would take someone to read through that. I wouldn't assume
22 that you can read through it rather quickly if you're trying
23 to determine what's relevant and retain it.
24 MR. BAUGH: Your Honor, I'm sorry, I didn't hear all
25 of that. But before we start this mitigation phase I should
6992
1 tell you we are going to slow down. I mean efficiency and
2 justice are not always conducive --
3 THE COURT: I'm not putting any time pressure on you.
4 I should say that because you made some comment yesterday that
5 last time you were before me that time is not the factor, and
6 I just want the record to be very clear the amount of time
7 that you propose for the presentation of your client's case is
8 dictated by you, that I have not imposed --
9 MR. BAUGH: Thank you.
10 THE COURT: -- any time restraints.
11 MR. BAUGH: Thank you. Advocacy does cause us to
12 have a concern about how much information we give the jury and
13 the form in which it is presented. As I told the jury before
14 it is our sincere belief that the videotape can save us
15 literally week of extremely boring testimony. The videotape,
16 that's why it's taking such a short period of time.
17 THE COURT: Is there is a paragraph here about jihad?
18 MR. BAUGH: Yes, there is.
19 THE COURT: You want them to read that. I don't
20 think it would be very difficult for you to identify the
21 particularly pertinent passages of the book that you wish them
22 to focus on, and I'll require that you do so. It doesn't
23 preclude their reading whatever they want. I'm very much
24 aware of the fact that this is not a trial and we're not
25 dealing with evidence. We're dealing with information. It's
6993
1 a new experience for me in any event.
2 MR. BAUGH: Also, in doing this presentation and
3 because our charging conference is at 4:30 I was assuming
4 perhaps, that it was the Court's intention that we would close
5 tomorrow, and give the case to the jury tomorrow; that we'd
6 close, charge the jury, give it to them tomorrow. We would
7 have a day -- unless the government has rebuttal.
8 THE COURT: We ended up with the book, and I will
9 allow it, and accompanied by a statement.
10 MR. BAUGH: I could prepare a written something to
11 hook on this book if you'd like me to.
12 THE COURT: I think it would be so much more helpful
13 to everyone if you did that.
14 MR. BAUGH: I think that is a rational compliment and
15 I would agree. Lastly, your Honor, the last item is the BBC
16 tape. It's the BBC documentary. It has to do with how the
17 development of Usama Bin Laden, and if you'll bear with me for
18 two minutes, the tape summarizes how with the advent of the
19 Soviet invasion of Afghanistan and the United States support
20 of the mujahideen freedom fighters, and that Usama Bin Laden
21 and people like him went to Afghanistan and fought. Nobody
22 ever really thought they were going to win. When they did,
23 suddenly in the Arab world there was this idea that
24 superpowers aren't superpowers anymore, and that is what has
25 led, that is a part of this case, and there is some discussion
6994
1 about that in there.
2 THE COURT: Has the government seen that tape?
3 MR. FITZGERALD: Yes. We have no objection.
4 THE COURT: It has no objection to this.
5 MR. BAUGH: Okay.
6 THE COURT: That's it?
7 MR. BAUGH: Subject to the government's rebuttal.
8 THE COURT: Does the government, assuming this is the
9 nature of the defendant's presentation, and of course you
10 haven't heard Clark's testimony, does the government
11 contemplate a rebuttal?
12 MR. FITZGERALD: Putting aside the issue of what is
13 responsive to Mr. Clark's testimony a brief rebuttal
14 contemplated at the moment would be trying to fashion a
15 stipulation in response to the offer of the Code of Federal
16 Regulations to show that while any administrative measures are
17 required --
18 MR. BAUGH: We're objecting to that.
19 THE COURT: Objecting to the --
20 MR. BAUGH: We are objecting to the, it is our
21 position that the Code of Federal Regulations merely states
22 that the government has the power to draft or create whatever
23 conditions of confinement they wish. Whether or not they've
24 done it, I think is irrelevant. To come in and say, we've
25 done this condition and we've had trouble with other inmates,
6995
1 we've done this condition, I mean unless you lock them up like
2 Hannibal Lector, there is always a possibility something could
3 happen. They can argue that.
4 But I don't believe that showing the Code of Federal
5 Regulations and showing that the government has to craft
6 conditions of confinement automatically trigger admission of
7 the SAM and the fact that in the past under certain SAMs there
8 have been incidents between inmates and inmates or somebody.
9 The government has sent over I think it was eighty pounds of
10 documents yesterday, that we've got through believe it or not
11 and there was stuff from ADMAX showing that some guard got
12 spit on or somebody through a carton of milk at somebody and
13 the overwhelming majority of these incidents are like that,
14 there is some inmate on inmate conduct when inmates are
15 allowed out in the yard together.
16 There are very few incidents where security or
17 corrections people have been directly assaulted, very few, but
18 even then there is no indication as to the level of
19 confinement that was being imposed when that person made their
20 attack. For that reason we say it's irrelevant and we tend to
21 confuse under 3593 --
22 MR. FITZGERALD: Your Honor, on the assumption that
23 Mr. Baugh is only offering evidence as to the special
24 administrative measures, and not this particular facilities
25 I've advised him the eighty pounds or whatever would not be
6996
1 offered. Out of the one hundred thousand inmates in the
2 Bureau of Prison system or however many inmates there are, I
3 believe at the current time there are approximately 13 inmates
4 under the special administrative measures due to terrorism
5 conduct and two of them carried out a serious assault. So to
6 put before the jury that there are special administrative
7 measures and argue to them that that would prevent him from
8 being violent in fairness requires a response that even when
9 you select the very few of the hundred thousand inmates or so
10 under the system, put them under the measures, people still
11 get hurt.
12 THE COURT: I think the jury is entitled to know not
13 only the theoretical, but the practical consequences of
14 confinement and actual experience, and I will allow a brief
15 rebuttal along these lines.
16 MR. BAUGH: When we get to that phase, could I ask
17 the Court at this time for a limiting direction that when we
18 get to that's the United States proffer to the Court and to
19 the defense what it plans to offer in more detail before the
20 Court makes its final ruling?
21 MR. FITZGERALD: What we always discussed to avoid
22 getting into the details of the November 1st assault was to
23 try to put it in by stipulation.
24 MR. BAUGH: Very well, your Honor, that will be fine.
25 MR. COHN: Your Honor may I, since I have to be first
6997
1 on this, and since the government and I are still working on a
2 stipulation, the government has just given me the complaint
3 against Eidarous. It's lengthy. I have prepared a redacted
4 version that I want to run by the government, so I'd like to
5 leave that out of the initial presentation.
6 THE COURT: How long does the government estimate
7 it's closing to take?
8 MR. GARCIA: Two hours, Judge, but likely take less.
9 MR. BAUGH: Two hours, your Honor. Make it three
10 hours and likely will take less.
11 THE COURT: The government's rebuttal?
12 MR. FITZGERALD: One hour. Let's say and hour and a
13 half but likely to take less.
14 THE COURT: Go to the jury Wednesday afternoon or
15 Thursday morning?
16 MR. BAUGH: I would say Wednesday.
17 THE COURT: You're talking about an hour's tape
18 playing.
19 MR. BAUGH: Honor, if I play all my tapes and put in
20 most of these exhibits I have, I'm reasonably sure we're going
21 to finish. I mean I'm trying. There is one other issue, your
22 Honor, I did want to revisit, and that is whether or not the
23 government can come comment on the defendant's silence as
24 evidence of remorse. We discussed that.
25 MR. GARCIA: We're not going do that.
6998
1 MR. BAUGH: That's fine, no problem.
2 THE COURT: Since you mentioned it, you know there is
3 a bracketed paragraph in the charge dealing with the
4 defendant's right not to testify which specifically relates to
5 its application to the issue of remorse and I put it in to
6 focus discussion. You may very well think that it's
7 counterproductive to say the jury not specifically don't
8 consider the defendant's silence when you consider remorse and
9 would want that paragraph deleted, but you can tell me that at
10 4:30.
11 MR. BAUGH: Being that you brought it up first, I
12 think the Court and the clerk have done a great job with
13 preparing this. I think the Court should consider changing
14 the word should to cannot in any way bear on your
15 deliberation, I think it should be.
16 THE COURT: But subject to that, you want that
17 paragraph in there?
18 MR. BAUGH: Yes, sir, I do. This is a very
19 conscientious jury. Did it again.
20 THE COURT: Anything else? All right. Well, pending
21 the arrival of the jury I would like to start looking at the
22 64 minute tape. I can see half of it.
23 MR. FITZGERALD: Judge, the other day we reserved two
24 things out of the presence of the jury. One was the
25 stipulation on age which I think defendant al-'Owahli wants to
6999
1 put in on his case is fine. And, secondly, there is a set of
2 photographs, I think four to five photographs which your Honor
3 had ruled were admissible, but we did not put in through a
4 witness, put the numbers on the record and then the set of
5 photographs to which Mr. Baugh may reference in his opening
6 which is a set of photographs or names of the deceased
7 victims. We can offer them now and they can start with the
8 defense case.
9 THE COURT: You want to offer them in the absence of
10 the jury?
11 MR. FITZGERALD: We can offer them at the very
12 beginning then and then we'll be completed.
13 THE COURT: All right. The jury is here. Why don't
14 we begin.
15 (Recess)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
7000
1 (In open court)
2 THE COURT: I don't remember whether I told you that
3 sometime midday you should get another revision of the
4 proposed charge. The principal changes relate to the
5 references to the statutes, and the government has indicated
6 that it is not seeking incorporation by reference of Section
7 (i) of --
8 MR. FITZGERALD: 844.
9 THE COURT: -- of 844. So we'll leave that. You
10 should have that midday.
11 We're in agreement that we're not sitting Friday even
12 if the jury is deliberating?
13 MR. COHN: I'm sorry. They are not sitting even if
14 we're deliberating?
15 THE COURT: I thought that was what the request was.
16 MR. COHN: I thought that, too. Here's the question.
17 I have been confused on that issue today.
18 THE COURT: Excuse me?
19 MR. COHN: And remain confused. I said I've been
20 confused on that issue today and remain confused. I did raise
21 it because I thought the Court had said we weren't. It is not
22 a request of mine, at any rate.
23 THE COURT: Let's discuss it at the midmorning break.
24 On June 11th we're going to adjourn at 3:00, and this
25 Wednesday we're going to adjourn at 3:00. The request for
7001
1 this early adjournment indicates how conscientious the jury
2 is. This one is "to attend a closing of a sale of my deceased
3 mother's apartment." These are not things that the jurors can
4 easily postpone.
5 What is the view? It seems the jury will be
6 deliberating. Do you want to sit on Friday or not sit on
7 Friday?
8 MR. BAUGH: Not really.
9 MR. FITZGERALD: We would prefer the jury just
10 proceed and deliberate. It's not extraordinary to sit during
11 the week and rather than shut down for Friday, Saturday,
12 Sunday and resume again on Monday.
13 THE COURT: You wish to sit on Friday?
14 MR. FITZGERALD: Yes. I think it's not unusual.
15 Many jurors sit over weekends to sit during weekdays.
16 THE COURT: I'm going to tell them they will sit on
17 Friday and we will adjourn at 3:00 on Wednesday and on Monday.
18 (Jury present)
19 THE COURT: Good morning.
20 THE JURY: Good morning.
21 THE COURT: Just some logistical matters. This
22 Wednesday we will adjourn at 3:00 to accommodate the request
23 of a juror. Based on what the attorneys tell me, the
24 probability is that this case will be fully submitted before
25 you for deliberations by the end of this week, and we will sit
7002
1 this Friday. We will sit this Friday.
2 You can't sit this Friday?
3 A JUROR: No, I cannot.
4 THE COURT: We will not sit this Friday.
5 And next Monday, the 11th, we will adjourn at 3:00
6 also.
7 All right. Mr. Fitzgerald.
8 MR. FITZGERALD: Yes, Judge. The government is just
9 offering for the record six exhibits, which are Government
10 Exhibits 2002, which is a set of pages through page 214, and
11 the following photographs: Government Exhibits 2255, 2256,
12 2259, 2270 and 2272.
13 MR. COHN: Subject to the prior rulings of the court,
14 your Honor.
15 THE COURT: Yes, received.
16 MR. FITZGERALD: I'm sorry. I think it's 2259. I'm
17 sorry, 2269 not 2259. I apologize.
18 THE COURT: Let's start again.
19 MR. FITZGERALD: 2255, 2256, 2269, 2270 and 2272 are
20 the photographs and the other exhibit was 2002.
21 THE COURT: Received.
22 (Government Exhibits 2002, 2255, 2256, 2269, 2270 and
23 2272 received in evidence)
24 MR. FITZGERALD: Thank you, Judge.
25 THE COURT: And the government rests?
7003
1 MR. FITZGERALD: Yes, subject to that other
2 stipulation which will be read during the defense case.
3 MR. COHN: May I proceed, your Honor?
4 THE COURT: So we are now in the defense case on
5 behalf of defendant Al-'Owhali.
6 Yes, you may.
7 MR. COHN: Your Honor, with the permission of the
8 Court, I intend to merely at this section remind the jury of
9 sections of trial transcript where testimony as to Mr. Odeh
10 and Mr. Salim were mentioned in the main trial. May I do
11 that?
12 THE COURT: Yes.
13 MR. COHN: Thank you.
14 Odeh in regard to his role in the offense is
15 mentioned at page 1135, lines 5 through 25; page 1136, lines 1
16 through 25; page 1137, line 1 through 22; 1158, line 25 going
17 over through 1159, 1160, 1161, to line 12; page 1182, lines 19
18 to 25; page 1183 in its entirety; page 1277, lines 8 through
19 25 and page 1278, lines 1 through 17; page 1624, line 9
20 through 25; page 1631, line 1 through 25 going over to page
21 1632 through line 5; page 1643, line 20 to 25, and 1644, 1645,
22 1646 through line 11; page 1651, line 14 through 25, going
23 over to page 1652 through line 13; page 1657, line 10 through
24 25, and then going on through line 13, 1658; 1660, line 21 to
25 25, and over onto 1661 through line 10; 1665, line 10 through
7004
1 25; on page 1666, starting on line 25 and going over -- I'm
2 sorry, that's all. On page 1675, line 1 through 25, which
3 goes over to line 1 on page 1676.
4 As to Salim, the trial transcript mentioning Salim in
5 his role in the offense is page 205, line 6 through 12; 210,
6 line 7 through 14; page 241, line 6 through 14; page 256, line
7 17 through 25 going over to 257 through line 4; page 259,
8 lines 24 and 25; page 260, lines 1 through 3; page 265, lines
9 2 through 25, going over on page 266 through line 12; page
10 267, lines 11 through 22; page 269, lines 12 through 25; page
11 270, lines 1 through 14; page 291, lines 16 through 25, going
12 over to 292 and 293 to line 10; page 308, line 6 to 15; page
13 332, line 17 through 25, going over to page 333 through line
14 17; page 571, line 6 through 25, and then going over to 572
15 through line 4; page 573, lines 21 through 25, going over to
16 574 through line 14; page 1535, line 13 through 25, going
17 through 1536, and page 1537 to line 3; page 1542, line 22
18 through 25, going over to 1543 through line 6.
19 THE COURT: Is that all?
20 MR. COHN: Yes. Your Honor, at this point I would
21 like to read from extracts made in allegations of the
22 indictment which was in a prior form at the time, and this is
23 our Exhibit Al-'Owhali P.
24 May I?
25 THE COURT: Yes.
7005
1 MR. COHN: Thank you. In triple T -- this is as to
2 Mr. Odeh -- it says:
3 "In or about April 1998, the defendant Mohamed Sadeek
4 Odeh discussed the fatwah issued by Bin Laden and al Qaeda
5 against American with Mustafa Mohamed Fadhil in Kenya."
6 In quintuple H, that's five Hs, it says: "On or
7 about August 2, 1998" -- and these are on the screen -- "the
8 defendants Mohamed Sadeek Odeh and Fazul Abdullah Mohammed,
9 together with other members of al Qaeda, met at the Hilltop
10 Hotel in Nairobi, Kenya."
11 Your Honor, at this time, as Exhibit Al-'Owhali Q, we
12 offer extracts of allegations made by the government in a
13 prior form of this indictment regarding Mamdouh Salim.
14 THE COURT: Yes.
15 MR. COHN: "Al Qaeda had a command and control
16 structure which included a majlis al shura -- pardon my
17 pronunciation -- (or consultation council) which discussed and
18 approved major undertakings, including terrorist operations.
19 The defendants Usama Bin Laden, Muhammad Atef, a/k/a Abu Hafs,
20 Ayman al Zawahiri and Mamdouh Mahmud Salim, a/k/a Abu Hajer,
21 among others, sat on the majlis al shura (or consultation
22 council) of al Qaeda. Egyptian Islamic Jihad had a Founding
23 Council, on which the defendant Ibrahim Eidarous sat.
24 "a. At various times from at least as early as 1989,
25 the defendant Usama Bin Laden, and others known and unknown,
7006
1 provided training camps and guesthouses in various areas,
2 including Afghanistan, Pakistan, the Sudan, Somalia and Kenya
3 for the use of al Qaeda and its affiliated groups. The
4 defendant Mamdouh Mahmud Salim managed some of these training
5 camps and guesthouses in Afghanistan and Pakistan.
6 "d. At various times from at least as early as 1989
7 until the date of the filing of this indictment, the
8 defendants Usama Bin Laden and Mamdouh Mahmud Salim, and
9 others known and unknown to the Grand Jury, engaged in
10 financial and business transactions on behalf of al Qaeda,
11 including, but not limited to: Purchasing land for training
12 camps; purchasing warehouses or storage of items, including
13 explosives, purchasing communications and electronics
14 equipment; transferring funds between corporate accounts; and
15 transporting currency and weapons to members of al Qaeda and
16 its associated terrorist organizations in various countries
17 throughout the world. To carry out some of these
18 transactions, the defendant Mamdouh Mahmud Salim traveled to
19 various places on behalf of al Qaeda and its affiliated
20 groups, including, to Malaysia, China, the Philippines and
21 Germany.
22 "f. Following al Qaeda's move to the Sudan in or
23 about 1991, the defendant Usama Bin Laden established a
24 headquarters in the Riyadh section of Khartoum. Usama Bin
25 Laden also established a series of businesses in the Sudan,
7007
1 including a holding company known as Wadi al Aqiq, a
2 construction business known as al Hijra, an agricultural
3 company known as al Themar al Mubaraka, an investment company
4 known as Ladin International, an investment company known as
5 Taba Investments, a leather company known as Khartoum Tannery,
6 and a transportation company known as Qudarat Transport
7 Company. These companies were operated to provide income to
8 support al Qaeda and to provide cover for the procurement of
9 explosives, weapons and chemicals and for the travel of al
10 Qaeda operatives. The defendants Mamdouh Mahmud Salim and
11 Wadih El Hage worked for various of the Bin Laden companies.
12 The defendant Wadih El Hage also served as Bin Laden's
13 personal secretary.
14 "i. At various times between in or about 1992 and in
15 or about 1996, the defendants Usama Bin Laden, Mamdouh Salim,
16 and other ranking members of al Qaeda, stated privately to
17 others of al Qaeda that al Qaeda should put aside its
18 differences with Shiite Muslim terrorist organizations,
19 including the government of Iran and its affiliated terrorist
20 group Hizballah, to cooperate against the perceived common
21 enemy, the United States, and its allies."
22 And finally: "j. At various times between in or
23 about 1992 and in or about 1996, the defendant Mamdouh Mahmud
24 Salim met with an Iranian religious official in Khartoum as
25 part of an overall effort to arrange a tripartite agreement
7008
1 between al Qaeda, the National Islamic Front of Sudan, and
2 elements of the government of Iran to work together against
3 the United States, Israel, and other Western countries."
4 Your Honor, at this time we offer as Exhibit
5 Al-'Owhali O1, a redacted version -- excuse me, I just got
6 corrected. It wasn't "finally" at all.
7 Going back, your Honor, to Al-'Owhali Q continues:
8 "k. At various times between in or about 1992 and
9 1996, the defendant Mamdouh Mahmud Salim worked together with
10 a ranking official of the National Islamic Front to obtain
11 communications equipment on behalf of the Sudanese
12 intelligence service.
13 "n. On various occasions in or about 1993, the
14 defendant Mamdouh Mahmud Salim lectured al Qaeda members that
15 the United States forces do not belong on any Arab lands, and
16 that the presence of the United Nations forces in Somalia was
17 a reflection of the United States' plans to attack the Muslim
18 world.
19 "aa. On various occasions the defendant Mamdouh
20 Mahmud Salim advised other members of al Qaeda that it was
21 Islamically proper to engage in violent actions against
22 'infidels' (nonbelievers), even if others might be killed by
23 such actions, because if the others were 'innocent,' they
24 would go to paradise, and if they were not 'innocent,' they
25 deserved to die."
7009
1 And what looks to me like Q six times, or sextuple Q,
2 "On or about September 16, 17, 18, 21, 23, 24, 25, and 28, in
3 Munich, Germany, the defendant Mamdouh Mahmud Salim made false
4 statements to German law enforcement officials conducting an
5 investigation of al Qaeda activity in Germany."
6 Now, your Honor, I offer as Al-'Owhali O1 a redacted
7 version of the criminal complaint against Khalid al Fawwaz,
8 and I will read in pertinent part from it, with the permission
9 of the Court.
10 THE COURT: Yes, granted. Received and granted.
11 (Defendant al-'Owhali Exhibit O1 received in
12 evidence)
13 MR. COHN: This has a caption over which shows it was
14 approved by Mr. Fitzgerald, Mr. Karas, and it's the affidavit
15 of Daniel J. Coleman, who is an FBI agent.
16 "From in or about 1992 through the date of the filing
17 of this complaint, outside the United States and outside the
18 jurisdiction of any particular state or district, Khalid al
19 Fawwaz, the defendant, together with Usama Bin Laden, and
20 others known and unknown, unlawfully, willfully, and knowingly
21 combined, conspired, confederated and agreed together and with
22 each other to kill nationals of the United States, including
23 nationals of the United States while such nationals were
24 outside the United States.
25 "2. In furtherance of the conspiracy and to effect
7010
1 the object thereof, the defendant and others committed the
2 following overt acts, among others:
3 "a. At various times from at least as early as 1990,
4 Khalid al-Fawwaz, the defendant, met with members and
5 associates of a terrorist group known as al Qaeda in
6 Afghanistan, the Sudan and elsewhere;
7 "c. At various times from at least as early as 1994,
8 Khalid al-Fawwaz headed an organization called the 'Advice and
9 Reformation Committee,' created by Usama Bin Laden;
10 "d. At various times from at least as early as 1994,
11 Khalid al Fawwaz delivered messages on behalf of Usama Bin
12 Laden and others associated with al Qaeda;
13 "g. Beginning in or about early spring 1993, al
14 Qaeda members (using Kenya as a base for logistical support)
15 began to provide training and assistance to Somali tribes
16 opposed to the United Nations' intervention in Somalia.
17 "h. In or about August 1996, Khalid al-Fawwaz
18 transmitted a statement from Usama Bin Laden stating publicly
19 that the United States' forces stationed on the Saudi Arabian
20 Peninsula should be attacked.
21 "Count Two: Solicitation of Murder.
22 "3. From in or about 1992 until in or about August
23 1993, in places outside the jurisdiction of any particular
24 state or district, Khalid al-Fawwaz, with the intent that
25 other persons engage in conduct constituting felonies that
7011
1 have as elements the use, attempted use, or threatened use of
2 physical force against property or against the person of
3 another in violation of the laws of the United States, and
4 under circumstances strongly corroborative of that intent,
5 solicited, commanded, induced and otherwise endeavored to
6 persuade such other persons to engage in such conduct, to wit,
7 Khalid al-Fawwaz solicited, commanded, induced and otherwise
8 endeavored to persuade Muslim males throughout the world, and
9 particularly those in Saudi Arabia and those belonging to al
10 Qaeda, to:
11 "(a) injure and destroy, and attempt to injure
12 and" --
13 I'm sorry. Something seems to have been left out,
14 your Honor. We'll have to provide that.
15 "c. Khalid al Fawwaz --
16 Yes, "intent to injure, interfere with, and obstruct
17 the national defense of the United States," in violation of a
18 statute which is mentioned.
19 "c. Khalid al-Fawwaz has been closely associated
20 with Bin Laden and other leaders of al Qaeda. CS-1 understood
21 that Khalid al Fawwaz made bayat (the pledge of allegiance) to
22 al Qaeda and Bin Laden, and that Khalid al-Fawwaz was
23 prominent among the members and associates of al Qaeda,
24 including Bin Laden. Indeed, in or around 1993 or 1994,
25 Khalid al-Fawwaz attended meetings of the leaders of al Qaeda
7012
1 which took place in Khartoum, Sudan.
2 "d. Usama Bin Laden created an organization in
3 London, England, called the 'Advice and Reformation
4 Committee,' and placed Khalid al-Fawwaz in charge as its
5 leader.
6 "e. While in London, Khalid al-Fawwaz acted to
7 facilitate the delivery of certain orders and messages on
8 behalf of Usama Bin Laden. By way of example, Khalid
9 al-Fawwaz received and transferred fatwahs (religious orders)
10 and other messages transmitted by facsimile from Usama Bin
11 Laden and other al Qaeda members in Khartoum, Sudan to London,
12 England.
13 "5. A confidential source (CS-1) who was a member of
14 the al Qaeda organization for a number of years and was
15 familiar with Khalid al-Fawwaz and Usama Bin Laden, has
16 admitted to participating in terrorist activity against
17 American interests and advised the following:
18 "7. On or about August 23, 1996, Usama Bin Laden
19 signed and issued a declaration of Jihad entitled 'Message
20 from Usama Bin Laden to his Muslim Brothers in the Whole World
21 and Especially in the Arabian Peninsula: Declaration of Jihad
22 against Americans occupying the land of the Two Holy Mosques;
23 Expel the heretics from the Arabian Peninsula' from the Hindu
24 Kush mountains in Afghanistan. The declaration included
25 statements that efforts should be pooled to kill Americans and
7013
1 encouraged other persons to join the Jihad against the
2 American enemy.
3 "11. I have reviewed a report seized from a computer
4 found in the residence of Wadih El Hage in Nairobi, Kenya.
5 The report appears to have been written in 1997 by Harun
6 Fazhl, a fugitive member of al Qaeda who has been charged with
7 the August 7, 1998 bombing of the American Embassy in Nairobi,
8 Kenya. The report discussed the fact that a top Bin Laden
9 operative had been arrested and was believed to be cooperating
10 with Saudi, British and American authorities. The author
11 states that he is concerned that the people in Kenya will be
12 under scrutiny because it is common knowledge that it was the
13 members of Bin Laden's cell in Kenya who were responsible for
14 killing the Americans troops in Somalia. The report states
15 that:
16 "'On the same day we heard the news, the partisans
17 from Mombasa called. I told them I will get in touch with
18 them and asked them never to call me at that number again ...
19 After two days they called me back at the same number so I
20 forced them to burn that number immediately and informed
21 Khalid that I had prohibited them from calling me here as I am
22 100 dread percent sure that the telephone is tapped.'
23 "In addition, the author of the report noted that he
24 'collected all the files which we do not need here and which
25 might pose a threat against us and have placed them in another
7014
1 location. We did not burn them since they belong to the
2 engineer Abd al Sabbur.' From the context of the report, it
3 appears that the report was written while Abd al Sabbur was in
4 Afghanistan visiting Usama Bin Laden. The author further
5 states that the report was not written 'until I (Harun Fazhl)
6 was officially asked by brother Khalid to be responsible for
7 the media information office for the cell in Nairobi. He
8 (Khalid) asked me also to write periodically about the
9 security situation in the cell and the whole group in here in
10 general in East Africa.'"
11 Finally, your Honor, we have included the signature
12 and as sworn before the magistrate judge of Daniel Coleman.
13 THE COURT: Very well.
14 MR. COHN: Your Honor, may I be excused?
15 THE COURT: Yes.
16 MR. COHN: Thank you.
17 MR. BAUGH: Your Honor, at this time on behalf of
18 defendant Al-'Owhali we would offer Government Exhibit -- I'm
19 sorry, Defendant's Exhibit R, same being the Code of Federal
20 Regulations, Part 501, which has not been previously
21 identified. I believe we tendered copies already to the
22 government, and I would ask Ms. Brown if you could put up page
23 2, Section 501.3. If you get in focus, the section says:
24 "Upon direction of the Attorney General" -- I'm
25 sorry. "Prevention of Acts of Violence and Terrorism.
7015
1 "Upon direction of the Attorney General, the
2 Director, Bureau of Prisons, may authorize the Warden to
3 implement special administrative measures that are reasonably
4 necessary to protect persons against the risk of death or
5 serious bodily injury. These procedures may be implemented
6 upon written notification to the Director, Bureau of Prisons,
7 by the Attorney General or, at the Attorney General's
8 direction, by the head of a federal law enforcement agency, or
9 the head of a member agency of the United States intelligence
10 community, that there is a substantial risk that a prisoner's
11 communications or contacts with persons could result in death
12 or serious bodily injury to persons, or substantial damage to
13 property that would entail the risk of death or serious bodily
14 injury to persons. These special administrative measures
15 ordinarily may include housing the inmate in administrative
16 detention and/or limiting certain privileges, including, but
17 not limited to, correspondence, visiting, interviews with
18 representatives of the news media, and use of the telephone,
19 as is reasonably necessary to protect persons against the risk
20 of acts of violence or terrorism. The authority of the
21 director under this paragraph may not be delegated below the
22 level of acting director.
23 "(b) Designated staff shall provide to the affected
24 inmate, as soon as practicable, written notification of the
25 restrictions imposed and the basis for these restrictions.
7016
1 The notice's statement as to the basis may be limited in the
2 interest of prison security or safety or to protect against
3 acts of violence or terrorism. The inmate shall sign for and
4 receive a copy of the notification.
5 "(c) Initial placement of an inmate in administrative
6 detention and/or any limitation of the inmate's privileges in
7 accordance with paragraph (a) of this section may be imposed
8 for up to 120 days. Special restrictions imposed in
9 accordance with paragraph (a) of this section may be extended
10 thereafter by the Director, Bureau of Prisons, in 120-day
11 increments upon receipt by the director of additional written
12 notification from the Attorney General, or, at the Attorney
13 General's direction, from the head of a federal law
14 enforcement agency or the head of a member agency of the
15 United States intelligence community, that the circumstances
16 identified in the original notification continue to exist.
17 The authority of the Director under this paragraph may not be
18 delegated below the level of acting director.
19 "(d) the affected inmate may seek review of any
20 special restrictions imposed in accordance with paragraph (a)
21 of this section through the Administrative Remedy Act, 28
22 C.F.R. part 542."
23 We would offer it at this time.
24 THE COURT: Yes, received.
25 (Defendant al-'Owhali Exhibit R received in evidence)
7017
1 MR. BAUGH: We would next offer the videotape of "60
2 Minutes," Exhibit S, as in Sam.
3 THE COURT: Received.
4 (Defendant al-'Owhali Exhibit S received in evidence)
5 (Videotape played)
6 (Continued on next page)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7018
1 MR. BAUGH: We've offered it and it has been
2 accepted.
3 THE COURT: Yes, proceed.
4 MR. BAUGH: Thank you, your Honor. I'd like to jump
5 out of sequence for just a second.
6 THE COURT: Just for the record that was 1996.
7 MR. BAUGH: May 12, 1996.
8 THE COURT: Yes.
9 MR. BAUGH: At this juncture, your Honor, we would
10 like to go to the defense, we would offer defendant
11 al-'Owahli's exhibit T, the same being a Defense Intelligence
12 Agency declassified memo dated January 1991.
13 THE COURT: That's previously been marked Court
14 Exhibit G and it's now Defendant al-'Owhali's T and it is
15 received.
16 (Defendant's al-'Owhali Exhibit T received in
17 evidence)
18 MR. BAUGH: This document which I will, as soon as I
19 find my marked-up copy, I will read from.
20 If you go to page 1, paragraph 3, if you can get it
21 up. Could you highlight the third paragraph, please. From
22 the Defense Intelligence Agency. I'm sorry, before do you
23 that, could you show the whole page again so we can see the
24 top of the page. Highlight the top of the page, please.
25 Thank you.
7019
1 DIA's declassified Iraq water treatment as a
2 vulnerability. Paragraph 1, please.
3 Iraq depends on importing specialized equipment and
4 some chemicals to purify its water supply, most of which is
5 heavily mineralized, and frequently brackish to saline.
6 I'll read from paragraph 3. Failing to secure
7 supplies will result in a shortage of pure drinking water for
8 much of the population. This could lead to increased
9 incidence, if not epidemics, of disease and to certain pure
10 water dependent industries becoming incapacitated, including
11 petrochemicals, fertilizers, petroleum refining, electronics,
12 pharmecuticals, food processing, textiles, concrete,
13 construction and thermal power plants.
14 Could I have the last line, there, Iraq's overall
15 water treatment capability will suffer a slow decline.
16 Could I have the next page, please. Top paragraph.
17 Although Iraq is already experiencing a loss of water
18 treatment capability it probably will take at least six months
19 to June, 1991 before the system is fully degraded. Unless
20 water treatment supplies are exempted from the UN sanctions
21 for humanitarian reasons, no adequate solution exists for
22 Iraq's water purification dilemma since no suitable
23 alternatives, including looting supplies from Kuwait
24 sufficiently meet Iraqui needs.
25 If I could have the next page, please, page 3, the
7020
1 last line. Iraq's rivers also contain biological materials,
2 pollutants and -- I'm sorry, the last part of paragraph, the
3 top of the page. Could you highlight that, please.
4 I missed paragraph 11. That's paragraph 12. I need
5 the paragraph before that. Paragraph 11. The bottom
6 paragraph there.
7 Biological materials, pollutants and are laden with
8 bacteria unless the water is purefied with epidemics of such
9 diseases as cholera, hepatitis and typhoid could occur.
10 Could I have page 5, please, page 6, forgive me.
11 Page 6, paragraph 19. I'm reading from the middle of the, in
12 the petrochemical industry, water used for cooling is
13 partially treated to prevent scaling. Water used in thermal
14 power plants or refineries to produce steam must be pure to
15 prevent corrosion and scaling otherwise loss of capability
16 could occur within two months.
17 In addition, food processing, electronic and
18 particularly pharmaceutical plants require extremely pure
19 water that is free from biological contaminants. Large
20 industrial plants, including petrochemical, refining and
21 fertilizer plants, collocate their water treatment facilities.
22 Turnkey contractors built these facilities, and the parts are
23 specific to each system which complicates their replacement.
24 The Iraqis could not manufacture duplicates and their
25 importation is embargoed.
7021
1 Could I have paragraph 20, please.
2 Iraqi alternatives. Iraq could try convincing the
3 United Nations or individual countries to exempt water
4 treatment supplies from sanctions for humanitarian reasons.
5 It probably also is attempting to purchase supplies by using
6 some sympathetic countries as fronts. If such attempts fail,
7 Iraqi alternatives are not adequate for their national
8 requirements.
9 And then if you could go to page 8, paragraph 27.
10 Iraq will suffer increasing shortages of purified
11 water because of the lack of required chemicals and
12 desalinization membranes. Incidences of disease, including
13 possible epidemics will become probable unless the population
14 were careful to boil water before consumption, particularly
15 since the sewage treatment system, never a high priority, will
16 suffer the same loss of capability with the lack of chlorine,
17 locally produced food and medicine could be contaminated. The
18 last line of the sheet, please.
19 The last four or five lines of paragraph 28. Thank
20 you.
21 Consequently, Iraqi probably is using untreated or
22 partially treated water in some locations full degradation of
23 the water treatment system probably will take at least another
24 six months. Thank you. You can take it off.
25 Next, your Honor, we would offer Al-'Owahli U, the
7022
1 same being protocol one, additional to the Geneva Convention's
2 1977.
3 THE COURT: Received.
4 (Defendant's Al-'Owahli Exhibit U received in
5 evidence)
6 MR. BAUGH: I would ask Ms. Campon to go to the third
7 page, article 54. Article 54: Protections of objects
8 indispensable to the survival of the civilian population.
9 1. Starvation of civilians as a method of warfare is
10 prohibited.
11 2. It is prohibited to attack, destroy, remove or
12 render useless objects dispensable at the survival of the
13 civilian population, such as food stuffs, agricultural areas
14 for the production of food stuffs, crops, livestock, drinking
15 water installations, and supplies and irrigation works, for
16 the specific purpose of denying them for their sustenance
17 value to the civilian population or to the adverse party
18 whatever the motive, whether in order to starve out civilians,
19 to cause them to move away or for any other motive.
20 3. The prohibitions in paragraph 2 shall not apply
21 to such of the objects covered by it as used by adverse party,
22 a, as sustenance solely for members of its armed forces, or,
23 b, if not as sustenance, then in direct support of military
24 action provided, however, that in no event shall actions
25 against these objects be taken which may be expected to leave
7023
1 the civilian population with such inadequate food or water as
2 to cause its starvation or force its movement.
3 4. These objects shall not be made the object of
4 reprisals.
5 5. In recognition of the vital requirement of any
6 party to the conflict in the defense of its national territory
7 against invasion, derogation from the prohibitions contained
8 in paragraph 2, may be made by a party to the conflict within
9 such territory under its own control where required by
10 imperative military necessity.
11 Thank you.
12 We would next call as our witness attorney Ramsey
13 Clark.
14 While the witness is being brought up, your Honor, I
15 want to hand the clerk we just read from protocol 1 additional
16 to the Geneva Convention, 1977, part 4 civilian population.
17 RAMSEY CLARK,
18 called as a witness by the defendant,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. BAUGH:
22 Q. Mr. Clark, this is a large room and the acoustics are kind
23 of bad. So I would ask you that you keep your voice up and
24 speak to the last person over there if possible.
25 Sir, how are you employed?
7024
1 A. I'm a lawyer.
2 Q. And where do you practice?
3 A. Well, my office is here in New York, but I practice all
4 around.
5 Q. You practice where?
6 A. All around, lots of places.
7 Q. And your practice also includes international
8 representations?
9 A. Yes.
10 Q. How long have you been an attorney?
11 A. 50 years this month.
12 Q. And in your employment as an attorney what sort of
13 positions have you held?
14 A. Well, mainly I've just been a private lawyer. I've held
15 government positions and I've held positions in organizations
16 dealing with human rights, civil rights and things like that.
17 Q. Calling your attention to the early '60s, did President
18 Kennedy appoint you to a position in the United States
19 government?
20 A. Yes.
21 Q. And what position was that, sir?
22 A. Assistant Attorney General.
23 Q. And for what period of time were you Assistant Attorney
24 General?
25 A. I was Assistant Attorney General until January of 1965.
7025
1 Q. From the time of your appointment until January of 1965
2 did your duties involve civil rights and human rights issues?
3 A. Extensively, yes.
4 Q. And what sort of responsibilities did you have while you
5 were an Assistant Attorney General?
6 A. Most of my activity was in the south. I was from the
7 south and I was young I had a southern accent and I could --
8 Q. You still do, sir.
9 A. -- I could function down there, better. So I handled for
10 instance all school desegregations in 1962, that is, I
11 supervised them. I spent the first week on Old Miss campus
12 with James Meredith. We had lots of soldiers and other people
13 there but I was principal official responsible for his
14 protection. He was the first African-American at Old Miss. I
15 worked Birmingham and through there. During the march from
16 Selma, Montgomery I was placed in charge of all forces
17 protecting Dr. Martin Luther King and the marchers under court
18 order who marched from Selma to Montgomery.
19 Q. As part of your responsibilities concerning the march and
20 Selma, did you actually stay in the field, in the tents?
21 A. Well, I was down there the whole time. I didn't spend
22 much time in the tent, because it was very tense and I would
23 be out most of the night driving up and down the highway
24 looking for trouble, but I would sleep in a car, sleep in the
25 tent or once or twice perhaps in a motel.
7026
1 Q. Any other responsibilities that you had while you were the
2 Assistant Attorney General involving civil rights?
3 A. I had become Deputy Attorney General at the time of Selma,
4 Montgomery, I got ahead of myself there. I became deputy in
5 January or February of '65 and the march began in March of
6 '65.
7 Q. Then you got promoted?
8 A. I participated in, I went back to Old Miss a number of
9 times in '62 and '63. We were worried we had too many
10 soldiers there. The Army didn't want to take them out.
11 Q. Keep your voice up, sir.
12 A. So I kept going back to Mississippi. I spent some time on
13 legislative recommendations and worked on what later became
14 the 19'64 Civil Rights Act. Back early in '63 actually when
15 we were drafting it, the bill was sent up in '63 during
16 President Kennedy's administration. It wasn't enacted until
17 after his death in '64.
18 Q. All right. Now, sir, did you also participate in drafting
19 of the Equal Housing Act?
20 A. Yes, by that time I had become Attorney General, and the
21 Deputy Attorney General has primary responsibility for
22 legislation, Voting Rights Act I had, that is for the
23 executive branch of course. The Congress disposes, as they
24 say. It enacts the law. We just give them our views, and
25 sometimes our efforts to enact it.
7027
1 I worked extensively on Voting Rights Act and I had
2 final responsibility for the 1968 Civil Rights Act which had
3 ten titles, one of which was Open Housing. Also I argued the
4 first Open Housing case in the Supreme Court as Attorney
5 General.
6 Q. Who appointed you Attorney General of the United States?
7 A. President Johnson.
8 Q. When did you leave that position, sir?
9 A. I left that position in January of 1969.
10 Q. Since that time has your practice involved other human
11 rights issues on a global scale?
12 A. I would say my primary interest concern activity since '69
13 has been in the international field of human rights, which to
14 me is simply the international equivalent of our civil rights
15 struggle here which continues. On I felt an obligation having
16 the experience, and I've continued to work here, too, in civil
17 rights to try to do something internationally.
18 Q. As a consequence of your involvement, sir, have you been
19 invited to and have you visited numerous countries at the
20 behest of government officials concerning human rights?
21 A. I've been invited to and I've visited many, many countries
22 and I've been refused visits to several.
23 Q. Can you name some of them?
24 A. Been inhibited from entering several.
25 Q. Can you list some of the countries that your human rights
7028
1 efforts have been sent to?
2 A. Well, I in '69 I started on Soviet Jewry. I spent, I
3 worked on cases there and Leningrad, skyjack trial, Rostovdon,
4 other cases. I went to South Africa. There I've been barred
5 for two years and finally I was able to go to South Africa in
6 1970, and have maintained an intense interest in the
7 situation.
8 When things would happen like Gulpa Bay in Chile, in
9 September '73 I went down there and spent sometime with the
10 New York judge in that case. Usually I'd put together a
11 little team and we'd go down to try to protect human rights in
12 a moment of crisis. I've been working all over the world on
13 Thailand, and the Tomasat University slaughter and the
14 Philippines, many, many times. Iran, I was there four times
15 in 1976, the last full year of the Shah's reign, and was there
16 when the Shah left in '77, and working on repression there.
17 Thirty, forty thousand people killed there that last year of
18 the Shah and trying to prevent it.
19 Q. Since 1991 in the Gulf War have you had occasion to travel
20 to Iraq?
21 A. I was in Iraq during the bombing. I went in as quickly
22 as I could get there, which wasn't terribly quick. It started
23 on the 17th of January. We drove in from Aman on the 2nd of
24 February, was the end of the second week of the bombing, and
25 spent about nine days. We drove two thousand miles looking at
7029
1 civilian damage and the effect of what was happening on the
2 civilian population. Since then I've been back ten or twelve
3 times. I go back every year. I missed one year, but a couple
4 of years I went a couple of times.
5 Q. When you were there in 1991 during the bombing I will ask
6 you specifically, sir, did you see the bombing's effect on the
7 societal infrastructure of Iraq?
8 A. We saw extensive destruction of civilian facilities,
9 civilian life. There was no electricity any place in the
10 country. There was no running water in any city or town or
11 village. You were lucky if you got your water out of a well
12 because you at least had the well.
13 Transportation, driving down the highway would be
14 buses, trucks, school buses, taxis, smashed up, hit while
15 driving down the highway. The hospitals were a major focus of
16 concern. I saw seven that had received direct hits and didn't
17 see any that didn't have damage, windows blasted out, things
18 like that.
19 Q. Now, in January of 1991 about how long had the United
20 Nations sanctions been in place?
21 A. The sanctions were first imposed on Hiroshima Day of 1990,
22 August the 6th.
23 Q. August 6, 1990?
24 A. Right.
25 Q. And the bombing started when?
7030
1 A. Depending on which part of the world you're in 17th there,
2 16th here.
3 Q. By the time the bombing started was there already an
4 impact of the sanctions on the availability of goods and
5 services in Iraq?
6 A. There was a depletion of five months, the food supply was
7 not as drastically depleted as the medical supply, and then
8 two weeks of emergency use on a large scale from January of
9 17th until I got there on February it was actually the morning
10 of the 3rd before I got there, had depleted virtually all of
11 the medicines.
12 Q. While you were there did you visit hospitals, including
13 operating rooms?
14 A. Well, they weren't using operating rooms, because they
15 were too enclosed and they didn't have electricity. They had
16 lamps in the wards. The first, when we first got there we
17 went straight to hospitals. We'd been up all night, and the
18 wards were jammed. Every bed was full, and they are strong
19 families, lots of families standing around, and the first
20 night I watched an 11 year old girl's left leg amputated
21 without any anesthesia. She went into shock, but four people
22 had to hold her down, and it actually saved, she lived, it
23 saved her life.
24 But there were people dying with shrapnel wounds, and
25 people badly battered from falling buildings and it was a
7031
1 catastrophe scene and the only light was lanterns. When
2 you're working on a patient you'd bring three or four lanterns
3 around, if you didn't have enough lanterns for a whole room,
4 so it was semi-darkness, cold.
5 Q. Did you see any indication that water treatment facilities
6 had been bombed?
7 A. Well, yes, certainly. The water system was demolished
8 from the reservoirs in the north to the taps in the cities.
9 The pipelines, the pumping stations, the filtration
10 facilities, there was no running water any place that we went
11 and I don't think there was running water any place. If you
12 happened to have gasoline power generator you might pump some
13 water but we didn't see any. I don't think there were any,
14 certainly not many, if any.
15 Q. What effects did the bombing have on the irrigation system
16 and the ability of the country to raise its own food?
17 A. Well, the bombing devastated agriculture for a long time.
18 90 percent of the poultry was lost because you depend on
19 electricity. They had, like we do, you know these sheds where
20 you 24 hour feeding and all.
21 Q. I'm afraid a lot of New Yorkers wouldn't understand the
22 requirement for electricity in poultry raising.
23 A. Well, it's a, you have light on the chickens night and day
24 so they grow faster and you feed them constantly, and when you
25 lose that and they're all crowded up there and your rain is
7032
1 gone, they lost 90 percent of their poultry. They lost lots
2 of their herds. About half their herds were driven out of the
3 country to save them because they didn't have, they didn't
4 have feed and there wasn't enough forage. All the insecticide
5 facilities were destroyed, storage facilities for insecticide
6 were destroyed, fertilizer, plants and fertilizer storage was
7 destroyed. So you had enormous difficulties with agriculture
8 to this day.
9 Q. As early as 1991 and during the bombing were Iraqi
10 citizens compelled to drink polluted water?
11 A. Well, the major compulsion was thirst, but what you saw
12 quickly was particularly among infants, the importation of
13 milk had been cut off and infant formula milk had been cut
14 off. They were getting about 25 hundred tons a month. They
15 had gotten 140 tons in five months, and mothers were under
16 food rationing and couldn't produce enough milk, and they'd
17 take sugar and water and try to supplement a baby's diet and
18 the water would be bad and the baby would go in 24 hours.
19 I met with Dr. Ibriham Anduri who was the head of the
20 Red Crescent, had been for ten years, trained in England.
21 He's a pediatrician himself, who had headed the Childrens
22 Hospital before he became head of Red Crescent, and worked in
23 Childrens Hospital in London for many years. He estimated
24 three thousand infants had died at the beginning of the
25 bombing within two weeks from the sole cause of lack of
7033
1 nutrition and milk. From bad water he thought three thousand
2 more but you couldn't, you couldn't count. He was in a better
3 position to count than anybody because he was sending out all
4 medicine that was available to all hospitals in the country
5 via courier instructions once a week and he would get reports
6 back, but it was a catastrophe of enormous magnitude.
7 Q. Did you actually walk through hospitals that year and
8 other years and see the effects on these children?
9 A. I walked through the hospitals every time I go there. I
10 don't go to all the hospitals every time, but sometimes I've
11 been to all the major hospitals on a single trip. In January
12 of this year I was in about seven hospitals and I walked
13 through the wards as I have every year, and the childrens
14 wards and the infants wards you see the same thing every time.
15 In almost every case the mother will be there with
16 the child and she's usually sitting on the bed. That's just
17 the way they do. She'll sleep on the bed and she'll sit on
18 the bed. She'll get up and stretch from time to time, but if
19 the mother is not there, you know something's happening to the
20 mother. Children, the incidence, it was interesting the
21 doctors all spoke British accent English, because nearly all
22 of them had been trained in England. That's where they got
23 their medical training. So you could talk to them very
24 easily.
25 And they would, they would tell you how they were
7034
1 losing patients and they still tell you how they lose patients
2 everyday that they can save if they only had simple medicines,
3 simple therapies, even the abilities to keep the place clean.
4 They still don't have antiseptics. They can't get chlorine to
5 purify their water. Bad water is still a major cause of
6 death.
7 Q. And just as an aside, when was the last time you were in
8 Iraq?
9 A. January of this year.
10 Q. Now, when you would take these tours through the hospitals
11 have you ever been in the presence when a child died?
12 A. Every time you see children that you wonder how they're
13 still alive. They are wasted. The doctors had never heard of
14 kwashiorkor or morasmis, or if they had, they had not seen it
15 since colonial times.
16 Q. Kwashiorkor and morasmis?
17 A. Yes, those are two severe diseases that are malnutrition
18 related which you waste away and your arms become like twigs
19 and your belly's bloat out sometimes, and you die. You go
20 through a miserable experience, and you die, and most cases in
21 kwashiorkor in many cases and morasmis. Now, they are running
22 tens of thousands of cases of kwashiorkor annually and
23 hundreds of thousands of cases of morasmis annually.
24 Q. Believe me, this is I don't mean this to sound stupid, but
25 culturally or societally, is there a significant difference or
7035
1 lessening of concern that Iraqi parents have for their
2 children versus American parents have for their children if
3 you are able to observe?
4 Do they cry for their children?
5 A. Well, cultures are very hard for other people to
6 understand and judge and comparisons or not always meaningful,
7 but the thing that's clear is that the Muslim family and the
8 Iraqi family are very, very close families. They are very
9 large families.
10 When you ask a mother how many children she has,
11 she's usually going to say five or six. If she's quite young
12 it may be one or two. This may even be her first child that
13 she's in the hospital with. They'll do things like this. The
14 hospitals can't offer much help and they will take, wherever
15 they can, they'll take their baby home to be with the rest of
16 the family over the weekend, even though they see that the
17 baby's dying.
18 You ask me whether I've ever been in the ward when a
19 baby died, several times, and the first, too many I remember
20 we looked at the baby, and when we got out of hearing I asked
21 the doctor how long he thought the baby would last and he said
22 a day or two, and before we got depo out of the room there was
23 this loud wail, which is something I'd experienced in Muslim
24 countries before, particularly in Iran, it's a means, it's
25 just totally uninhibited grief in which you just wail, and we
7036
1 went back and that woman's baby had died.
2 Q. Have you noticed a particular impact of the sanctions and
3 the bombings and the embargo on diabetics?
4 A. Well, in the early years the hospitals were full of a lot
5 of diabetics who had. There is no insulin available. If
6 there were insulin dependent within a short period of time
7 without insulin they were losing eyesight sometimes, but often
8 they were having great open sores and cracks in their feet.
9 Q. Have you seen this yourself?
10 A. Oh, sure.
11 Q. You have seen people who have been blinded by not getting
12 insulin?
13 A. Yes. Tried to get some of from the United States and
14 gotten some in to try to help them.
15 Q. And the sores you're talking about, you have seen this
16 yourself?
17 A. Sure.
18 Q. What about is there a particular impact on frequency and
19 treatment of cancer victims?
20 A. The, there has been a substantial increase in cancers,
21 tumors, lukemias, malformed infants, miscarriages, deformed
22 infants. I think that there was, there are multiple causes.
23 One, there was tremendous amount of chemicals in the air, oil
24 fires and chemical fires. We bombed chemical plants. We
25 bombed nuclear reactors that they had for production of
7037
1 electricity which weren't in service, but they had them there.
2 They had been bombed earlier you may recall.
3 So you had all this pollution, and then there was
4 depleted uranium which was used extensively through the
5 country. It took us a long time to get figures on it but I
6 think the Pentagon now concedes that over nine hundred
7 thousand rounds of machine gun fire with depleted uranium was
8 directed at Iraq, and something like fifty thousand missiles,
9 silver bullets they call them which can penetrate a tank, come
10 in one side and go out the other, but the density of the
11 depleted uranium and it vaporizes and gets in the air and it
12 gets in the ground water, and it gets in the food chain, and
13 particularly in the south in 1992 on my first trip back after
14 the bombing at the training hospital you come to know the
15 doctors. They're really remarkable heroes, because they stay
16 there, by their ingenuity and natural medicines, and all they
17 try to keep people alive, but they were beginning to see
18 deformed babies, and tumors and cancers and leukemia, and
19 people that were brought in forms they hadn't seen before and
20 in numbers they hadn't seen before.
21 By 1993 the Ministry of Health was aware of it and
22 now it's pretty established fact.
23 Q. Backing up one moment, have you seen evidence that the
24 United States bombed nuclear power plants?
25 A. I haven't seen the plants, but both general Schwartzkopf
7038
1 and Gen. Powell during the bombing said that they had taken
2 out, they named a number of chemical plants, like 28, the
3 number of nuclear reactors, too, and then they said the third
4 one, which it hadn't been reported publicly that there were
5 supposed to be three in the country, but they said they took
6 them out. Poof, gone, was the words of one of them from a
7 press conference in Saudi, Arabia, during the bombing.
8 Q. Have you spoken with Iraqi medical authorities as to the
9 number of children and others who have been dying over the
10 last ten years as a consequence of the sanctions?
11 A. I've spoken at great length on every trip and I've spoken
12 with doctors from probably forty nations when we got back.
13 When I say we, there is, I went in there with a small camera
14 crew during the bombing. When I got back the first thing we
15 tried to do is get medicine in there, and then we tried to get
16 doctors in there. So early in, early in '91 we went, what we
17 called the Harvard medical team and contacts with UNICEF and
18 others. I've talked to doctors constantly about conditions of
19 life and death in Iraq.
20 Q. Sir, have you heard the number of two 250 children per day
21 are dying as a consequence of the sanctions or one every ten
22 minutes?
23 A. I think that's a low number actually. The numbers are
24 higher than that now. The death, the numbers of death have
25 increased every year for ten years up to 2000 beginning at
7039
1 about '97 the rate of increase slowed down and they seemed to
2 be stable, but still the numbers of death have gone up, and
3 the, about half of the deaths are children under 5, and the
4 larger part of that are infants in their first year, and the
5 second largest group are the elderly, in the early years it
6 was the chronically ill.
7 Q. Why would the elderly be more represented among the
8 fatalities?
9 A. Well, I guess it's they probably use more medicine and
10 they need more nutrition, they need more care, and the thing
11 that's saddest but clear that they seem to suffer more stress.
12 It's not a good way to end your life seeing your grandchildren
13 dying and all the rest.
14 Q. Also, so people will understand, prior to the war when
15 things were fine, what percentage of Iraqis food needs were
16 met by locally grown or locally cultivated foodstuffs?
17 A. Unfortunate for Iraq I think that it was an oil producing
18 country, and you find that most Arab oil producing countries
19 don't like to work on a farm because it's hard work, and the
20 agriculture had dropped down. Iran had been radical. Here it
21 had been down to about 60 percent. They're importing about 40
22 percent of their food which made them particularly vulnerable
23 to the sanctions.
24 Q. Also, these conditions in Iraq and the deaths of the
25 children and old people, based on your traveling in the Middle
7040
1 East are these conditions widely known over there among the
2 populations of the Middle East?
3 A. I think they are a matter of daily discussion and daily
4 media coverage and not just the Middle East. I mean not just
5 Muslim countries. There are a billion Muslims in the world
6 but you go to Indonesia. You go to the Far East, or you go to
7 Malaysia, you come back the other way and you go to Mauritania
8 or Morocco, and everybody's constantly aware, everybody's
9 aware of efforts to provide some kind of relief, and Europe
10 the same, you can go to demonstrations in Italy and England
11 and all over about the sanctions against the Iraq, and the
12 deaths it's causing and the misery it's causing to the people
13 there.
14 Q. When you were there in January of this year are children
15 and old people still dying?
16 A. Sure, more than ever. I think it's tapering out and I
17 hope, but, see, even after, even after the sanctions are off,
18 when you've had ten years of malnutrition and ten years of
19 sicknesses that could have been prevented, and the general
20 health of the country is way, way down, just, in 1989, 4.5
21 percent of all live births weighed less than two and a half
22 kilos, which is the break even point for a healthy opportunity
23 to develop your body and your mind and everything.
24 Today it's 25 percent, one out of four, and that
25 means that, they'll be around for a while, we hope. Everybody
7041
1 has to hope they'll be around for a while, but they're going
2 to be small and they're going to have organs that didn't
3 develop fully, and it's going to take a long, long time to
4 overcome that.
5 Q. Another consequence of malnutrition do you see or hear of
6 increases in the number of people who are being placed in
7 facilities for the mentally disabled or retarded?
8 A. There is a strong correlation between poverty and
9 retardation. President Kennedy's Council on Mental
10 Retardation identified that in the United States and we found
11 20 percent of the retarded, 80 percent of retarded were among
12 20 percent of the people who are poorest because of
13 malnutrition, things like that. They are not big on
14 institutional living. They love their children, and they keep
15 their retarded pretty much at home, but you have to assume
16 that the rate is much higher than it would have otherwise
17 been.
18 Q. Do you see, did you see evidence of that in the streets?
19 A. See what?
20 Q. Did you see evidence of mental health problems in the
21 streets, the number of people that you see in the streets?
22 A. You see problems of stress. Death from hypertension are
23 way up. I mean they're like 22 times what they were in 1989
24 which is the last full year before sanctions. But it's not
25 something that you are aware of. You may notice it, if you
7042
1 pay attention, but it's not something. Everybody's down. I
2 mean per capita income in 1989 was 25 hundred dollars per
3 person. Today it's about $540 per person. So the poverty is
4 the thing that you really feel most dramatically.
5 Q. You traveled through a lot of these countries, haven't
6 you?
7 A. Yes.
8 Q. And you have taken some positions that have been critical
9 of the United States, am I correct?
10 A. I believe if you love your country, that's your duty, if
11 you think it's wrong.
12 Q. In fact, you have in your capacity as an attorney
13 represented one of the defendants or part of the defense team
14 for one of the defendants for the World Trade Center bombing,
15 weren't you?
16 A. That's right.
17 Q. And further you have given an affidavit in Mr. Fawwaz'
18 case in England? Didn't you send them an affidavit?
19 A. I was asked for an affidavit in that case concerning
20 whether you can get a fair trial in a terrorist case here in
21 the United States.
22 Q. Just one moment, please.
23 (Pause)
24 Q. How long do you plan to continue going back there to Iran?
25 A. Well, it's as long as it lasts and I last.
7043
1 Q. And then?
2 A. It may last as long as I do.
3 Q. If you don't know this, tell me, but are you familiar, did
4 you know that the rate of exchange for currency in Iraq which
5 was in 1990 was $3 to the dinar is now 15 hundred dollars --
6 I'm sorry -- is now 1500 dinars to the dollar? Did you know
7 that?
8 A. Well, I think I've seen the statistic but they don't
9 really mean much because there is no real exchange, and the
10 currency there is not much, is not worth a whole lot. You
11 engage in barter. I mean if you depended on your salary as a
12 school teacher or a professor or something like that, you'd
13 starve to death.
14 MR. BAUGH: Thank you. Excuse me one second, I'm
15 sorry. May I have one second, please, your Honor?
16 (Pause)
17 Q. I'll preface. In your efforts to prevent a war in 1990
18 and 1991 did you actually meet with Sudam Hussein?
19 A. I've met with him several times and I met with him in
20 probably midNovember of 1990. There were people coming from
21 all over the world trying to prevent a war and I told him
22 Hiroshima happened. You've got to get out of here. You've
23 got to get out of this mess.
24 Q. Who else went or who else met with him during that time
25 period if you know?
7044
1 A. Well, I don't know exactly at that time. People from the
2 United States.
3 Q. Mohammed Ali?
4 A. Mohammed Ali went and spent about a week.
5 Q. President Ortega?
6 A. Daniel Ortega and Miguel Descoto who at that time,
7 President and Foreign Minister of Nicaragua went, but the
8 President of France went, Tony Ben, leader of parliament in
9 the UK, and Gorbachev. All kinds of people went. There was
10 an intense desire among many to prevent a war that could only
11 be a catastrophe.
12 MR. BAUGH: Thank you, sir. Pass the witness. No
13 further questions.
14 THE COURT: Government.
15 CROSS-EXAMINATION
16 BY MR. FITZGERALD:
17