United States v. Bin Laden - Day 10 Transcript

7/27/2019 United States v. Bin Laden - Day 10 Transcript

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26 February 2001

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

0300.

This is the transcript of Day 10 of the trial.

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

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1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

3 UNITED STATES OF AMERICA

4 v. S(7) 98 Cr. 1023

5 USAMA BIN LADEN, et al.,

6 Defendants.

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

8

New York, N.Y.

9 February 26, 2001

9:50 a.m.

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11

12 Before:

13 HON. LEONARD B. SAND,

14 District Judge

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SOUTHERN DISTRICT REPORTERS (212) 805-0300

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1 APPEARANCES

2 MARY JO WHITE

United States Attorney for the

3 Southern District of New York

BY: PATRICK FITZGERALD

4 KENNETH KARASPAUL BUTLER

5 Assistant United States Attorneys

6

ANTHONY L. RICCO

7 EDWARD D. WILFORD

CARL J. HERMAN

8 Attorneys for defendant Mohamed Sadeek Odeh

9 FREDRICK H. COHN

DAVID P. BAUGH

10 LAURA GASIOROWSKI

Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

11

DAVID STERN

12 DAVID RUHNKE

Attorneys for defendant Khalfan Khamis Mohamed

13

14 SAM A. SCHMIDT

JOSHUA DRATEL

15 KRISTIAN K. LARSEN

Attorneys for defendant Wadih El Hage

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1 (Trial resumed)

2 THE COURT: Are there any matters that require the

3 court's attention before bringing the witness and the jury?

4 MR. FITZGERALD: One very brief matter, on which

5 there is agreement. Mr. Schmidt wanted a picture of the

6 witness al-Fadl to use to cross-examine this witness. I have

7 provided him one on the understanding that if it is offered as

8 an exhibit it will be a sealed exhibit so his picture is not

9 in the public domain.

10 THE COURT: Very well.

11 MR. FITZGERALD: I would also wish to put in this

12 transcript, which will take two minutes, and then we will be

13 ready for cross-examination.

14 THE COURT: Very well. Bring in the witness and

15 bring in the jury.

16 L'HOUSSAINE KHERCHTOU, resumed.

17 (Jury present)

18 THE COURT: Good morning.

19 JURORS: Good morning.

20 THE COURT: Mr. Fitzgerald.

21 MR. FITZGERALD: Thank you, your Honor.

22


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23 (Continued on next page)

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Kherchtou - direct

1 DIRECT EXAMINATION (Continued)

2 BY MR. FITZGERALD:

3 Q. Mr. Kherchtou, I have placed before you two transcripts,

4 marked 201A-T and 217B-T.

5 A. Yes, sir.

6 Q. Have you reviewed those transcripts and translations and

7 compared them with tape recordings that you listened to at the

8 same time?

9 A. Yes.

10 Q. Are those two transcripts fair and accurate

11 transcriptions, in other words, writings, of what was said in

12 the phone conversations, including translations from Arabic to

13 English?

14 A. Yes.

15 Q. Were the voices as identified on the transcripts, are

16 those voices accurately identified as to who is speaking?

17 A. Yes.

18 MR. FITZGERALD: Thank you, your Honor. I have

19 nothing further.

20 THE COURT: Very well. We will proceed with

21 cross-examination. Mr. Schmidt.

22 CROSS-EXAMINATION

23 BY MR. SCHMIDT:


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24 Q. Good morning, Mr. Kherchtou. Is that how you pronounce

25 your name?


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1 A. Yes. Good morning.

2 Q. What year was it that you first went to Afghanistan?

3 A. It was in 1991.

4 Q. And you remained in Afghanistan until some point in 1993,

5 is that correct?

6 A. Yes.

7 Q. Did you travel outside of Afghanistan or Pakistan during

8 the period from 1991 to 1993 when you left ultimately to go to

9 Nairobi?

10 A. Yes, I went to Saudi Arabia.

11 Q. Was that for a hajj?

12 A. Yes.

13 Q. Did you go with other members of the group on the hajj?

14 A. Well, I went by myself but there was a guy, he wasn't from

15 al Qaeda. His name was Dr. Montessur. He was an Egyptian.

16 Q. Was he a member of an Egyptian group?

17 A. No, he was a doctor working with al Qaeda guesthouse.

18 Q. He was a doctor, a medical doctor from Egypt?

19 A. Yes, he is a medical doctor, yes.

20 Q. He was treating members of al Qaeda and other groups in

21 Afghanistan?

22 A. Yes.

23 Q. Were there many people in Afghanistan who were not members


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24 of al Qaeda?

25 A. Yes, many.


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1 Q. Many of these people working in roles, like as doctors,

2 nurse, and helpers?

3 A. Yes.

4 Q. You told us that when you arrived in Pakistan, I think it

5 was, at one of the guesthouses, your papers, your documents,

6 your travel documents, passport, were taken from you; is that

7 correct?

8 A. Yes.

9 Q. It was your understanding that was for safekeeping?

10 A. Yes.

11 Q. Because you were ultimately going to go into Afghanistan

12 and participate in a war, at the time against the Afghani

13 Communists, right?

14 A. Yes.

15 Q. After you left Afghanistan and Pakistan, were your papers

16 returned to you?

17 A. At what time you are talking about?

18 Q. Excuse me?

19 A. They were given to me when I moved from Bait al Ansar to

20 Bait al Salaam. And they were given to me again at the end

21 when I was traveling.

22 Q. When you were at the front or in the camps, did you get

23 regular time off to visit your wife?

24 A. Yes, in the camp, yes.


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25 Q. Was that important to you, to be able to spend time with


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1 your wife periodically?

2 A. Yes, I think so.

3 Q. Is that a religious duty?

4 A. It is.

5 Q. In some point in 19 -- withdrawn.

6 When you were in Afghanistan, did you meet people who

7 had come to Afghanistan to assist the Afghanis in the early or

8 mid-1980's?

9 A. I met many people but I don't know exactly when they came

10 there.

11 Q. Did it become known to you that some of the people -- he's

12 been here or he's come back from 1983 or he's been here from

13 the very beginning, something of that nature?

14 A. Yes.

15 Q. There were a number of people, I am sure a minority, who

16 fit that description, is that right?

17 A. Yes.

18 Q. People who did come early on in the Afghan freedom battle

19 against the Russians were treated with a little bit more

20 respect because they came so early on.

21 A. Yes, you are right.

22 Q. For somebody to do that, that alone would give a degree of

23 trust to that person if that person came in the early 1980's

24 and stayed the whole time, or came back and forth to help the


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25 cause, is that right?


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1 A. Yes.

2 Q. Before you went to Nairobi did you make a stop in the

3 Sudan?

4 A. No.

5 Q. Did your wife travel from Pakistan to the Sudan before you

6 went to Nairobi or after you went to Nairobi?

7 A. What happened is, I went after my wife in pilgrimage in

8 Saudi Arabia. Then from Saudi Arabia I went back to Pakistan.

9 She traveled from Saudi Arabia to Sudan. Then when I went

10 back to Kenya, I had 20 days to wait for the immigration

11 permit to be issued. Then I went to Sudan and found my wife

12 already there.

13 Q. So first you actually physically went to Kenya?

14 A. Yes.

15 Q. And filed papers in Kenya?

16 A. Yes.

17 Q. How many days were you there before you went to the Sudan?

18 A. I don't remember. Probably a week.

19 Q. Do you recall the first time that you went to Nairobi, is

20 it fair to say that that was approximately October of 1993?

21 A. Yes.

22 Q. It was your understanding that you were going to Kenya to

23 learn to be a pilot, is that right?

24 A. Yes.

25 Q. You had no objections to that because that's a good skill


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1 to learn, isn't it?

2 A. Yes.

3 Q. Your understanding was that Mr. Bin Laden wanted you to be

4 available to not only fly an airplane if he wanted to travel

5 but also for crop dusting for the farming companies, is that

6 right?

7 A. I didn't get your question, please.

8 Q. It was your understanding that once you became a pilot you

9 would be doing flying, perhaps Mr. Bin Laden around?

10 A. Yes.

11 Q. And doing crop dusting for the farming companies.

12 A. Excuse me. Your microphone --

13 Q. You would be doing crop dusting for the farms owned by

14 Mr. Bin Laden and his companies, is that right?

15 A. The crop dusting came very later after that, when we want

16 back to Sudan, they wanted to have somebody who has already

17 the license and he can fly crop dusting.

18 Q. So when you first came to Nairobi, it was just to fly

19 Mr. Bin Laden's personal plane, but then later on it was

20 expanded to include crop dusting of the farms.

21 A. Yes.

22 Q. As you told us, there was a religious obligation for you

23 to regularly visit with your wife, is that correct?

24 A. Yes.

25 Q. And also, by the time that your wife was in the Sudan did


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1 you have any children?

2 A. Yes, I had one, yes.

3 Q. It was also a religious obligation to spend time with your

4 children as well.

5 A. Yes.

6 Q. And you took that quite seriously, didn't you?

7 A. Yes.

8 Q. So after spending approximately two months in Nairobi

9 studying, you went back and spent a month in the Sudan with

10 your family. Would that be accurate?

11 A. No, it is not accurate. It wasn't like that. Normally,

12 if you talk about religious, if you stay somewhere far from

13 your wife, you should stay at least four months, then you go

14 back to visit her. But in Nairobi when I was there, it wasn't

15 exactly two months and then another month in Sudan. Probably

16 if I stayed three months I can get two weeks or three weeks I

17 go to Sudan, and so on.

18 Q. This was quite a while ago, right?

19 A. Excuse me.

20 Q. This occurred quite a while ago, your travel back and

21 forth to Sudan?

22 A. Yes.

23 Q. So you are doing your best to remember back that far, is

24 that right?

25 A. Yes.


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1 (Pause)

2 MR. SCHMIDT: I apologize.

3 Q. Do you recall telling the agents when you were interviewed

4 the first time that it was your best memory that every two or

5 three months you would spend in Nairobi you would then spend a

6 month in the Sudan with your family? Do you remember telling

7 that?

8 A. No, sir I don't remember, but as I said, it's not exactly

9 two months and another month in Sudan.

10 Q. I understand. It could be two or three months, a lot

11 depends on your schedule and classes.

12 A. Yes, you are right.

13 Q. But the amount of time that you tried to spend in the

14 Sudan when you went back there would hopefully be a month.

15 A. Yes, sometimes.

16 Q. Sometimes it might only be two or three weeks but

17 sometimes it might be four weeks.

18 A. Yes.

19 Q. Obviously you tried to spend as much time with your family

20 having been away from them for that long.

21 A. Yes.

22 Q. Do you remember the letter that you left for Ahmed Sheikh

23 when you visited in 1998?

24 A. Yes.

25 Q. Do you remember that the top of the letter, the greetings



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1 part of the letter read something like in the name of God the

2 merciful and the compassionate, may peace and God's blessings

3 be upon you, dear Ahmed Sheikh, Allah -- do you remember that

4 greetings portion?

5 A. Yes.

6 Q. Is that something that is traditional to do from one

7 Muslim to another Muslim writing a letter?

8 A. It depends on the culture of the Muslim, how it is. If

9 you are very good can write good things, if not, you can say

10 in the name of God the merciful --

11 Q. In other words, if you are a good letter writer, you would

12 put like a blessing or something in the letter?

13 A. Yes.

14 Q. That is not an al Qaeda thing, that is simply being a good

15 Muslim in writing to another Muslim?

16 A. Yes. Many people they can write more than that thing if

17 they are not from al Qaeda.

18 Q. When you were traveling back and forth from Nairobi to the

19 Sudan, when you were in the Sudan were you working then?

20 A. No.

21 Q. You had the opportunity to spend time with your family and

22 time with others that you knew without having to worry about

23 working in a position.

24 A. Yes.

25 Q. So during that time you had a lot of free time to find out


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1 what was going on with the people in the Sudan.

2 A. Yes.

3 Q. You spent that time not just being close to your family,

4 your wife and -- you had one child then or did you have a

5 second?

6 A. Excuse me.

7 Q. How many children did you have in, say, 1993 and 1994?

8 A. In '94 I had only one.

9 Q. You spent time with your family but you also spent time

10 catching up with all the information of things that went on in

11 the Sudan with people that you knew, is that right?

12 A. Yes.

13 Q. When you were in Nairobi, you knew Hamad, also known as

14 Khalid al Fawwaz, is that correct?

15 A. Yes, I knew Hamad.

16 Q. Did he live with you in the apartment?

17 A. No.

18 Q. Who lived with you in the apartment?

19 A. Abdel Hameed.

20 Q. That's a different person than Hamad, right?

21 A. Yes.

22 Q. What did Mr. Hameed do?

23 A. He is supposed to be assistant of Hamad in the

24 registration of the company.

25 Q. That was Asma Ltd.?


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1 A. Yes.

2 Q. Do you know if Hameed was associated with al Qaeda?

3 A. Yes.

4 Q. Do you know if he was associated and had taken bayat or

5 was just associated?

6 A. I know he is from al Qaeda but I didn't know when did he

7 give bayat to al Qaeda.

8 Q. Did you discuss the bayat with Mr. Hameed?

9 A. No, I have never discussed the bayat with anybody else.

10 Q. Did you see Hamad on a fairly regular basis when you were

11 in Nairobi?

12 A. Yes.

13 Q. Did he also keep you up with information on what was

14 occurring in the Sudan and with Usama Bin Laden?

15 A. Not necessarily.

16 Q. Did you discuss what was going on when you would come back

17 from the Sudan?

18 A. Probably, yes.

19 Q. Did Hamad travel from Nairobi to the Sudan at times as

20 well?

21 A. I don't remember. I don't think so.

22 Q. Did he travel outside of Kenya, if you remember?

23 A. I don't remember.

24 Q. When you came back to Sudan in 1995 -- withdrawn.

25 You went and stayed in Sudan at some period of time


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1 in 1995, is that correct?

2 A. Yes.

3 Q. At that time you started working in Sudan, in Khartoum, is

4 that right?

5 A. Yes.

6 Q. And I think that at one point that you said that you

7 started working at the tannery, that you stopped working

8 there, is that right?

9 A. Yes. I started working in Wadi Al Aqiq company.

10 Q. Who was running that company at that time?

11 A. Excuse me.

12 Q. Who was running Wadi Al Aqiq at the time you started

13 working there?

14 A. Who was running?

15 Q. Yes.

16 A. There was sometimes Abu Fadhl al Makkee, sometimes Sheik

17 Jihad el Masri and later Abu Salaama.

18 Q. You were sent over to the tannery from Wadi Al Aqiq to

19 work there, is that correct?

20 A. Yes.

21 Q. And you were required to take a test, is that right?

22 A. Yes, but it wasn't a test. I haven't sit for any test.

23 Q. Wasn't there some type of test that you were required to

24 take?

25 A. Yes. They told me after that that they were looking at


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1 that or something. There was something going on, but there

2 was nothing written, nothing some questions, nothing.

3 Q. What were you doing at the tannery when you were working

4 there?

5 A. We went only for some days to the commercial section with

6 two guys, Abu Ahmed Sarudi and another guy from Oman. And we

7 stayed there sometimes. Then after a while they told us that

8 there is no work.

9 Q. After that, did you obtain employment with Abu Ibrahim?

10 A. No.

11 Q. Where did you go from the tannery?

12 A. I stayed in my home. I stayed home. I didn't work.

13 Q. Where was your next job?

14 A. It was after a while, after Bin Laden left and al Qaeda

15 left, then I got another job with Kaswah company.

16 Q. K-A-S-W-A-H?

17 A. Kaswah.

18 Q. Who ran Kaswah?

19 A. Abdouh Abdallah al Yemeni.

20 Q. He was a businessman?

21 A. Yes.

22 Q. He was basically in an import/export company?

23 A. Yes.

24 Q. So they dealt with lots of different commodities?

25 A. Different what?


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1 Q. Commodities, goods? Different kinds of goods?


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2 A. Yes.

3 Q. Whatever would be profitable to either bring into the

4 Sudan to sell for a profit or to export from Sudan to another

5 country for profit, is that right?

6 A. Yes, right.

7 Q. When you were with working for Abu Abdallah, you were just

8 doing business, is that right?

9 A. Yes.

10 Q. Based on what you could see, all that Mr. Abu Abdallah al

11 Yemeni was doing was business, is that right?

12 A. Yes.

13 Q. There were times that you saw correspondence either to or

14 from Wadih El Hage, from or to Abu Abdallah al Yemeni, is that

15 right?

16 A. Yes.

17 Q. In fact, some of it was even addressed to you concerning

18 different goods and commodities, is that right?

19 A. Yes.

20 Q. Some of the goods and commodities were hides?

21 A. Hides?

22 Q. Animal hides?

23 A. Leather?

24 Q. Yes, leather?

25 A. Yes.


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1 Q. Sugar?


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2 A. Yes.

3 Q. Seeds?

4 A. Yes.

5 Q. Do you remember any other ones as well?

6 A. Tanzanite and (through interpreter) precious stones.

7 Q. And there were times where there were attempts for Mr. Abu

8 Abdallah to be a middleman for some large deals that

9 unfortunately didn't happen, is that correct?

10 A. Yes.

11 Q. By the way, when you were in the Sudan both visiting and

12 immediately after your return, were there any Sudanese

13 intelligence officers that regularly worked between Bin Laden

14 and the government of the Sudan, like a liaison?

15 A. Yes.

16 Q. Do you know the names of those individuals?

17 A. I know the names of the guy who was taking me myself to

18 the airport sometimes.

19 Q. Who is that?

20 A. Abdul Hallek.

21 Q. These were Sudanese intelligence, is that correct?

22 A. Yes.

23 Q. When you were traveling, it was a Sudanese intelligence

24 officer that would see you from basically Khartoum to the

25 airport to make sure that you are actually leaving the


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1 country, is that correct?

2 A. Yes.


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3 Q. Because the Sudanese intelligence kept very close watch

4 over Bin Laden and Bin Laden's employees and members, is that

5 right?

6 A. It's not every day. Sometimes you can travel by yourself

7 if you don't have anything, carrying money or something, you

8 can travel by yourself to the airport and you do the whole

9 check-out and you go.

10 Q. But if there is anything that you are carrying other than

11 your own personal belongings, the Sudanese intelligence would

12 be involved.

13 A. Yes.

14 Q. They were monitoring Mr. Bin Laden and the people in

15 Khartoum.

16 MR. FITZGERALD: Objection to competence as to what

17 he knows they were doing.

18 MR. SCHMIDT: I am sorry?

19 THE COURT: The question is his competence to testify

20 as to what the Sudanese were doing.

21 MR. SCHMIDT: I will rephrase the question.

22 THE COURT: Yes.

23 Q. It was your understanding that the Sudanese were keeping

24 close track of the activities and Mr. Bin Laden and the people

25 who worked for Mr. Bin Laden, is that right?


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1 A. Sudanese, their role is to take you from your guesthouse

2 in the morning to the airport and just to make sure you cross


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3 the immigration in the airport. They don't know what you are

4 carrying.

5 Q. There were a number of people of Egyptian background that

6 were in the Sudan, is that right?

7 A. Yes.

8 Q. And you knew quite a few to have them.

9 A. Yes.

10 Q. You knew that many of the Egyptians who were in the Sudan

11 were very much afraid of the Egyptian government.

12 A. Yes.

13 Q. Even people who were not members of al Qaeda were afraid

14 of the Egyptian government.

15 A. Yes.

16 Q. For example, Abu Tareq, the person who crashed the

17 airplane?

18 A. Yes.

19 Q. He was Egyptian, is that right?

20 A. Yes.

21 Q. And you believed that he was not a member of al Qaeda, is

22 that correct?

23 A. Yes.

24 Q. He actually flew from the Sudan to Nairobi before he went

25 back to Egypt because he was afraid of letting the Egyptians


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1 know that he was with Bin Laden.

2 A. I don't know when did he flew -- I didn't know if he was

3 afraid or not.


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4 Q. Were you aware that religious Egyptians, both al Qaeda

5 members and non-al Qaeda members, were afraid of imprisonment

6 and torture from the Egyptian government?

7 MR. FITZGERALD: Objection, 401 and competence.

8 THE COURT: Sustained.

9 Q. Did you have conversations with members of Al Qaeda

10 concerning their fear of the Egyptian government?

11 MR. FITZGERALD: Members of Al Qaeda?

12 MR. SCHMIDT: Yes.

13 A. Yes.

14 Q. Were there times when nonmembers of Al Qaeda were present

15 during discussions about their fears of the Egyptian

16 government?

17 A. I don't remember if somebody from non-Al Qaeda was staying

18 with us. I don't remember.

19 Q. Did members of Al Qaeda express the fact that any

20 apparently religious person traveling to Egypt risked

21 imprisonment and torture?

22 A. Yes. It was obvious that all people, most of the

23 Egyptians who were in Afghanistan, if they go back to Egypt

24 they will be facing tortures.

25 Q. It made no difference whether they were Al Qaeda or people


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1 who were just in Afghanistan for a short period of time, isn't

2 that correct?

3 MR. FITZGERALD: Objection, competence and 401.


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4 THE COURT: Yes.

5 Q. You knew also many Egyptians who were members, you met

6 many Egyptians who were members of jihad organizations from

7 Egypt, is that right?

8 A. Yes.

9 Q. Was there more than one jihad organization of Egypt that

10 were in the Sudan when you were there?

11 A. Yes.

12 Q. What were those organizations' names?

13 A. There is Gamaa Al Jihad. It means Al Jihad group. And

14 Gamaa Islamiya.

15 Q. One is often called Egyptian -- EIJ. Egyptian Islamic

16 Jihad.

17 A. I said Gamaa Jihad and al Gamaa al Islamiya, it means

18 Egyptian Jihad of Sheik Omar Abdel Rahman.

19 Q. When we refer to the Egyptian Islamic Jihad, who is the

20 leader of the group, of that particular group? Who was the

21 leader back then?

22 A. The leader was Sheik Omar Abdel Rahman.

23 Q. When we talk about, what was the other one, Gamaa?

24 A. I am talking about Gamaa Islamiya.

25 Q. Is there another group simply called shortly like the


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1 Islamic Group?

2 A. I don't know.

3 Q. Have you heard of a person named Zawahiri?

4 A. Yes.


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5 Q. Was he a leader of a particular group?

6 A. Yes.

7 Q. What particular group was he a leader of?

8 A. Al Jihad group.

9 Q. Is that the same group that Abdel Rahman was a leader of?

10 A. No.

11 Q. Two different groups?

12 A. Yes.

13 Q. Just so we can understand it and use English initials, if

14 I say IG, which group would that be referring to, with who as

15 the leader?

16 A. Islamic jihad?

17 Q. Yes, Islamic Group.

18 A. They are all Islamic groups.

19 Q. So if I say Gamaat, which group are we talking about?

20 A. Gamaa?

21 Q. Yes.

22 A. It is Sheik Omar Abdel Rahman group.

23 Q. That's Gamaa?

24 A. Gamaa.

25 Q. I think that has been referred to at times as IG. So the


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1 Sheik Rahman group we refer to as IG?

2 A. Yes.

3 Q. The Zawahiri group we will refer to as Egyptian Islamic

4 Jihad. Is that sometimes referred to as that?


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5 A. The translation I don't know.

6 Q. It would be Islamic Jihad, is that correct, from Egypt?

7 A. We call it Gamaa Jihad, it means Al Jihad Group of Egypt.

8 Q. Al Jihad Group of Egypt.

9 A. OK.

10 Q. These two groups obviously were not, the leadership was

11 not able to stay in Egypt, is that right?

12 A. Excuse me.

13 Q. That leadership was wanted in Egypt. They would be

14 arrested and imprisoned and tortured and maybe executed,

15 right?

16 A. Yes.

17 MR. FITZGERALD: Objection, again to competence and

18 401.

19 THE COURT: Sustained. The answer is stricken.

20 Q. Did you know any members of either the Islamic Jihad of

21 Egypt or the, what we call the IG, Sheik Rahman's group, in

22 Khartoum?

23 A. Yes.

24 Q. Could you tell us the names of some of the people that you

25 knew who belonged to that group, either one of those groups.


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1 A. For example, Sheik Faraj el Masry, he is one of the Al

2 Jihad Group of Himan Zawahiri.

3 Q. Was he one of the early people in Afghanistan 1234?

4 A. Yes, he went to Afghanistan long time before me.

5 Q. Was there a lot of people from the Egyptian groups that


25/155

6 went to Afghanistan early on?

7 A. Yes.

8 Q. Who else did you know from Islamic Jihad?

9 A. I don't remember their names.

10 Q. There were some people that you dealt with that it was

11 your belief they were not Al Qaeda members, is that correct?

12 A. From which country?

13 Q. When you were in Sudan, there were a number of people that

14 you dealt with -- withdrawn.

15 When you were in the Sudan and sometimes in Nairobi,

16 there were people that you dealt with that it was your belief

17 that they were not Al Qaeda members, is that correct?

18 A. Yes.

19 Q. Sometimes these people worked for companies owned by Bin

20 Laden, is that correct?

21 A. Yes.

22 Q. Sometimes these people might have assisted people who were

23 Al Qaeda members, is that correct?

24 A. Yes.

25 Q. Some of them might have been borrowed from groups like the


1371

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1 Egyptian jihad of Egypt.

2 MR. FITZGERALD: Objection to the form, the word

3 borrow.

4 THE COURT: Yes.

5 Q. Sometimes people who were not Al Qaeda but were members of


26/155

6 Egyptian Jihad of Egypt do some training of members of Al

7 Qaeda.

8 A. In Sudan?

9 Q. In Sudan and even in Afghanistan and Pakistan.

10 A. In Sudan I have never seen some trainings.

11 Q. In Afghanistan or Pakistan where sometimes the trainer was

12 a person who was Egyptian jihad, not Al Qaeda, but was used as

13 a trainer.

14 A. Sometimes, yes.

15 Q. There were also some people that you knew who you had no

16 idea whether they were or were not Al Qaeda, is that right?

17 A. Yes.

18 Q. For example, Abu Hajer, he was one of the what we call old

19 timers from Afghanistan, who went to Afghanistan early on, is

20 that right?

21 A. Yes.

22 Q. You saw him being involved in Mr. Bin Laden's businesses

23 in the Sudan, is that correct?

24 A. Yes.

25 Q. You never saw him do any training or anything like that,


1372

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Kherchtou - cross

1 did you?

2 A. No.

3 Q. He was a person who had great respect of Mr. Bin Laden and

4 others who were in Al Qaeda, is that correct?

5 A. Yes.

6 Q. But you could not say that he actually was a bayat member


27/155

7 of Al Qaeda, could you?

8 A. No.

9 Q. There were people like Ahmed Sheikh in Nairobi.

10 A. Yes.

11 Q. He was somebody who was friends with a number of people

12 that were Al Qaeda, is that right?

13 A. Yes.

14 Q. He was somebody that helped in some ways, assisted some of

15 those people in Nairobi, is that right?

16 A. Yes.

17 Q. You described on direct examination because he lived in

18 Nairobi for a long time, he was able to assist with the legal

19 problems of members of Al Qaeda, is that right?

20 A. Yes.

21 Q. You are fairly confident that he is not a member of Al

22 Qaeda, is that correct?

23 A. Yes.

24 Q. Abu Ibrahim is a person that you knew in the Sudan, is

25 that correct?


1373

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Kherchtou - cross

1 A. Which Abu Ibrahim?

2 Q. Abu Ibrahim al Iraqi?

3 A. Yes.

4 Q. Did you know him in Afghanistan?

5 A. I had heard of him, yes.

6 Q. But you didn't meet him until you went to Sudan, is that


28/155

7 right?

8 A. Yes.

9 Q. He was running al Hijra company for a while, is that

10 correct?

11 A. Yes.

12 Q. That is the construction company?

13 A. Yes.

14 Q. The road building company?

15 A. Yes.

16 Q. In the road building company, most of the engineers that

17 worked in that company were Iraqis, weren't they?

18 A. Yes.

19 Q. They were not Al Qaeda, they were just al Iraqis?

20 A. Yes.

21 Q. There were a lot of Sudanese that worked in al Hijra as

22 well, doing a lot of the menial jobs, is that correct?

23 A. Yes.

24 Q. In fact, it is your understanding that the Sudanese

25 government and the Sudanese people were very happy about the


1374

12qkbin1

Kherchtou - cross

1 jobs that Mr. Bin Laden brought in to the Sudan with all of

2 his companies, is that right?

3 A. Yes.

4 Q. Do you know if Abu Ibrahim al Iraqi worked in any other

5 company?

6 A. No.

7 Q. You have talked about a person named Ubaidah Al Banshiri.


29/155

8 A. Yes.

9 Q. He also was an old timer, wasn't he? He was in

10 Afghanistan early on.

11 A. Yes.

12 Q. His relationship with Bin Laden was more of a friend than

13 it was as an emir and an underling, is that right?

14 A. Excuse me. I didn't get --

15 Q. His relationship was like a friend, is that right?

16 A. They were more than friends, yes.

17 Q. It wasn't, from what you could see, Mr. Bin Laden wasn't

18 giving orders, directions to Mr. al Banshiri.

19 A. I don't know how it goes between them.

20 Q. Do you know a person named Abu Khadija al Iraqi?

21 A. Yes.

22 Q. All the contacts that you had with Abu Khadija al Iraqi

23 were business or commercially related, is that correct?

24 A. Yes.

25 Q. Abu Khadija did a lot of traveling in Europe.


1375

12qkbin1

Kherchtou - cross

1 A. Yes. I know he is from Germany. That's why he is

2 traveling.

3 Q. Were you aware that he had a European passport, from

4 Germany?

5 A. Yes.

6 Q. So he was able to travel freely through Europe, is that

7 right?


30/155

8 A. Yes.

9 Q. You are not aware that he is a member of Al Qaeda, is that

10 correct?

11 A. I don't know, but he was all the time, sometimes in the

12 meetings, sometimes in the guesthouse in Khartoum.

13 Q. He was traveling a lot. Did he have a house in the Sudan?

14 A. Yes.

15 Q. The head of one of the agricultural companies, them

16 March -- do you know the company I am talking about?

17 A. Themar al Mubaraka.

18 Q. Was that Dr. Mubarak?

19 A. Yes.

20 Q. Mr. Mubarak, did he run more than one company or did he

21 run just one company?

22 A. I didn't get your question.

23 Q. How many companies did he run? Did he run more than more

24 than one company or just one?

25 A. I think he was running el Mubaraka company, which is a


1376

12qkbin1

Kherchtou - cross

1 branch of Wadi Al Aqiq company.

2 Q. Dr. Mubarak is, to your knowledge, not a member of Al

3 Qaeda, is that correct?

4 A. Yes.

5 Q. Do you know a person Hamza al Liby?

6 A. Yes.

7 Q. He is a Libyan, is that correct?

8 A. Yes.


31/155

9 Q. To your knowledge, you do not believe that he is Al Qaeda,

10 is that correct?

11 A. He is from Al Qaeda.

12 Q. He is Al Qaeda? What was his role? What did he do in the

13 Sudan?

14 A. He is working in al Hijra company.

15 Q. Do you know a person named Abu Baden el Masry?

16 A. Mohamed, yes.

17 Q. Do you know if he was Al Qaeda?

18 A. Yes.

19 THE COURT: Do you know, or he wasn't?

20 THE WITNESS: No, I know that he was in Al Qaeda

21 group.

22 Q. Did you talk with him being in Al Qaeda?

23 A. No, it was obvious. You can't say to a member who is

24 working with you in the same company are you from this company

25 or not. I mean, the question, you can talk about all issues


1377

12qkbin1

Kherchtou - cross

1 about Al Qaeda among us, discussing whatever.

2 Q. What about, there were a number of black Americans who

3 were in Khartoum in those years, is that correct?

4 A. Americans?

5 Q. Some black Americans?

6 A. Yes.

7 Q. One of them was Abu Malek?

8 A. No, he wasn't in Khartoum.


32/155

9 Q. He was not in Khartoum?

10 A. I don't know him.

11 Q. Was he in Afghanistan or Pakistan?

12 A. I knew a guy called Abdouh Malek, an American, but he was

13 in Pakistan and since then -- he didn't visit Sudan.

14 Q. Was he Al Qaeda?

15 A. I believe so.

16 Q. But you are not sure?

17 A. No.

18 Q. In fact, you told the agents when they asked you about Abu

19 Malek that you did not know whether he was an Al Qaeda member.

20 A. Abu Malek or Abdou Malek?

21 Q. I guess there might be two people. There is an Abu Malek?

22 A. Abu Malek, I don't know him.

23 Q. There is an Abdou Malek?

24 A. Abdou Malek yes.

25 Q. Did you tell the government when you first were talking


1378

12qkbin1

Kherchtou - cross

1 about different people who were members of the Al Qaeda, who

2 you did not think were members of Al Qaeda, who you did not

3 know were members of Al Qaeda, you said to the government that

4 you did not whether Abdou Malek was a member of Al Qaeda, is

5 that correct?

6 A. I don't remember that. If I said, that is correct.

7 Q. So you don't know if he was, is that correct?

8 A. Yes.

9 Q. There are a lot of -- when you were in Afghanistan there


33/155

10 were a number of Algerians who were in Afghanistan and

11 Pakistan, is that correct?

12 A. Yes.

13 Q. They basically stayed in their own guesthouse, is that

14 right?

15 A. Yes.

16 Q. And they basically stayed together, is that correct?

17 A. What do you mean by together?

18 Q. They hung around in their group mostly. Not that they

19 didn't mix with other people but they mostly hung around with

20 their group of Algerians.

21 A. Yes.

22 Q. Based on your knowledge, that of those Algerians, those

23 Algerians did not train with Usama Bin Laden or Al Qaeda, is

24 that correct?

25 A. There is a group -- al Farouq camp, for example, everybody


1379

12qkbin1

Kherchtou - cross

1 can come from different nationalities. They can come and be

2 trained in al Farouq camp. But for Algerians, at certain

3 times there came a group of Algerians, purely Algerians. They

4 came, they were trained in Khalid Ibn Walid camp.

5 Q. They were trained separately?

6 A. Excuse me.

7 Q. They were separate from other groups?

8 A. Yes, they were separate, yes.

9 Q. Do you know a person named Abu Salaama?


34/155

10 A. Yes.

11 Q. You don't know if Abu Salaama is a member of Al Qaeda, is

12 that correct?

13 A. Yes.

14 Q. Abu Salaama worked at Wadi Al Aqiq, is that correct?

15 A. Yes.

16 Q. He also worked at the Khartoum tannery, is that correct?

17 A. Yes.

18 Q. Did you know a person named Abu Hazim?

19 THE COURT: Mr. Schmidt, how much longer are you

20 going to go along this path? I am just wondering whether it

21 couldn't be expedited by simply giving the witness a list of

22 names and asking him in one fell swoop to identify which he

23 knows to be Al Qaeda members and which he does not know.

24 MR. SCHMIDT: I am trying to get other information

25 about these individuals as well, your Honor.


1380

12qkbin1

Kherchtou - cross

1 THE COURT: If you would pick up the pace I am sure

2 it would be appreciated.

3 Q. Do you know a person named Abu Hazim?

4 A. Hazim? No.

5 Q. Do you know a person named Abu Hazim who was a member of

6 the Libyan Fighting Group?

7 A. Hazim?

8 Q. H-A-Z-I-M.

9 A. No.

10 MR. FITZGERALD: May I have a moment, your Honor?


35/155

11 THE COURT: Yes.

12 MR. SCHMIDT: Thank you.

13 Q. Abu Hazem.

14 A. Hazem?

15 Q. Yes.

16 A. No.

17 Q. Hazem?

18 A. Hazem is a Palestinian name, so Libyans do not use it.

19 Q. I am trying to say Abu H-A-Z, I guess E-M, a person that

20 you told the government that you knew was a Libyan member of

21 the Libyan Fighting Group and was not an Al Qaeda member.

22 Does that refresh your recollection?

23 A. No.


25


1381

12Q1BIN2

Kherchtou - cross

1 Q. Now, there is a company called the Kasalla facility, is

2 that correct?

3 A. Kasalla is a city in the Sudan, yes.

4 Q. There is agricultural facility there that is owned by

5 Mr. Bin Laden; is that correct?

6 A. Yes.

7 Q. And they did experiments concerning hybrids for

8 agricultural products like corn; is that right?

9 A. Yes.

10 Q. That's run by a Abu Muath; is that correct?


36/155

11 A. Yes.

12 Q. He's a Palestinian, is that right?

13 A. Yes.

14 Q. He's not a member of al Qaeda, isn't that correct?

15 A. Yes.

16 Q. Now, do you know an Abu Daud, D-A-U-D, a person who fought

17 in Afghanistan?

18 A. Yes.

19 Q. Now, he was often seen in Khartoum doing business with

20 people, isn't that right?

21 A. Well, he was visiting Sudan only.

22 Q. He's not a member of al Qaeda; is that correct?

23 A. Yes.

24 Q. There is a, there are two people named Mak Daud?

25 A. Mak Daud, yes.


1382

12Q1BIN2

Kherchtou - cross

1 Q. The Egyptian one, is that correct, he's a member, he's not

2 a member of al Qaeda, is he?

3 A. Yes.

4 Q. He is or is not?

5 A. No, he's not.

6 Q. He's a member of the Egyptian jihad, is that correct?

7 A. I'm not quite sure.

8 Q. Do you recall telling the government back when they were

9 asking you all these names and that you indicated that Maqdad

10 was likely a member of the Egyptian jihad?

11 A. Yeah, because he all the time with Egyptians so.


37/155

12 Q. Now, Abu Ismal he worked at the GASH project in Sudan for

13 Mr. Bin Laden, is that correct?

14 A. Yes.

15 Q. Was he an al Qaeda member?

16 A. No.

17 Q. Abu Sara worked at Wadih ak Kish; is that correct?

18 A. Yes.

19 Q. He was a member of the Libyan group and not al Qaeda; is

20 that correct?

21 A. Yes.

22 Q. Abdel Kadim?

23 A. Yes.

24 Q. He's someone that you did business with, is that right?

25 A. Yes.


1383

12Q1BIN2

Kherchtou - cross

1 Q. He's also not al Qaeda; is that correct?

2 A. Yes.

3 Q. But he knows just about everybody there, doesn't he?

4 A. Not everybody, but.

5 Q. Lots of people?

6 A. Yes.

7 Q. Do you know a person name Ahmed Hasan?

8 A. Yes.

9 Q. He's not al Qaeda, is he?

10 A. There are two Ahmed Hasans, both Egyptian, one from al

11 Qaeda, one not.


38/155

12 Q. And the one that's not from al Qaeda is from the Islamic

13 jihad Egyptian, right?

14 A. From jihad.

15 Q. You knew a few Sudanese members of al Qaeda, didn't you?

16 A. Yes.

17 Q. And one in particular you knew that Abu Bidala Sudani, is

18 that correct?

19 A. I heard about him, yes.

20 Q. Do you recall ever meeting him?

21 A. No, I don't think so.

22 Q. All the times that you went to the guest houses, the

23 meetings, the get together when you were in Khartoum is it

24 your belief that you never saw him, is that correct?

25 A. Yes, for the reason because they were talking about that


1384

12Q1BIN2

Kherchtou - cross

1 he was working with the company he stole money and he left, he

2 run away, that's why he not in the guest house.

3 Q. But prior to him running away, the times that you would

4 come back for your two, three, four weeks in the Sudan?

5 A. Yes.

6 Q. You never ran into him in a guest house or at any of the

7 meetings. Is that correct?

8 A. I was going to guest house and the meetings.

9 Q. But you never met Abu Adan?

10 A. No, I don't think so.

11 Q. Now, do you know him by any other name?

12 A. No.


39/155

13 Q. Now, I'm going to show you a photograph which is marked

14 WEH exhibit C. May I approach the witness, your Honor?

15 THE COURT: Yes.

16 Q. Do you recognize that photograph?

17 A. No.

18 Q. Do you ever think you've seen that man before?

19 A. No.

20 Q. Thank you. Now, was there a discussion about what should

21 be done to Al Ubaidah for stealing?

22 A. Excuse me?

23 Q. Was there discussions among al Qaeda about what to be done

24 to Mr. Al Ubaida Sudani for stealing money?

25 (witness consults with interpreter)


1385

12Q1BIN2

Kherchtou - cross

1 A. No, there was, there is nothing about this.

2 Q. Was there any discussion whatsoever about killing Mr. Abu

3 Al Ubaida Sudani?

4 A. No, you don't kill somebody that stole money.

5 Q. Why is that?

6 A. It's against Islam, so Abu Al Ubaida would know he had no

7 fear from his life.

8 MR. FITZGERALD: Objection.


10 Q. Or from Mr. Bin Laden?


12 Q. What was your, what was the relationship between the al


40/155

13 Qaeda and Iranians?

14 A. Iranians? They don't like Iranians.

15 Q. Why is that?

16 A. Because we are Sunni and they are Shiites, and you know I

17 mean we had many points that's why we don't like them.

18 Q. Are there fundamental religious differences between Sunnis

19 and the Shiites?

20 A. Are there fundamentalist what?

21 Q. Are there basic differences between the practice of Islam

22 by Sunni and the practice of Islam by Shiites?

23 A. Well, you have some differences.

24 Q. And as a result of those differences is there not a big

25 dispute a split between the Sunni branch Islam and the Shiite


1386

12Q1BIN2

Kherchtou - cross

1 branch of Islam, is that correct?

2 A. Yes.

3 Q. They both view each other also as heretics?

4 (Witness consults with interpreter)

5 A. Yes.

6 Q. Now, I think you told us earlier that you never saw or

7 heard of any military training in the Sudan while you were

8 there; is that correct?

9 A. Yes.

10 Q. That was whether you were visiting every few months from

11 Nairobi or whether you were in the Sudan having left Nairobi,

12 is that correct?

13 A. Yes, when I was there I have never heard something like


41/155

14 that.

15 Q. Were you aware of any military training at the soba farm?

16 A. No.

17 Q. Now, have you been to the soba farm?

18 A. Yes.

19 Q. Was that a farm that was open space owned or used by

20 Mr. Bin Laden?

21 A. Yes.

22 Q. And were there, did Mr. Bin Laden go there on the weekends

23 to ride horses?

24 A. Yes.

25 Q. Now, the weekends in the Sudan were what day were they?


1387

12Q1BIN2

Kherchtou - cross

1 A. What day?

2 Q. Yes?

3 A. Friday.

4 Q. Thursday and Friday?

5 A. Normally Friday. Thursday is a working day.

6 Q. Now, there were also people getting together for a soccer

7 games at the soba?

8 A. Yes.

9 Q. Swimming?

10 A. Yes.

11 Q. Picnicking?

12 A. Sometimes, yes.

13 Q. Now, al Qaeda and the Egyptian groups have very different


42/155

14 philosophies; is that correct?

15 A. I don't know.

16 Q. When you first came to Afghanistan you were fighting the

17 war against at that time it was the Afghani communists being

18 supported by the Russians, is that correct?

19 A. Yes.

20 Q. You went to the front and you fought for them, is that

21 right?

22 A. Yes.

23 Q. And when you joined al Qaeda it was your understanding

24 that these are the kind of battles that you would participate

25 in if you were a member of al Qaeda?


1388

12Q1BIN2

Kherchtou - cross

1 A. Yes.

2 Q. And, in fact, you brought many friends and associates in

3 battle in Chechnia?

4 A. Yes.

5 Q. And southern Bosnia?

6 A. Yes.

7 Q. Do you know if any of your fellow al Qaeda members went to

8 Turjakistan to fight against the old Communist ruler in

9 Turjakistan?

10 A. Turjakistan they went I think in '95.

11 Q. And that was what you envisioned the type of fights that

12 you would participate in as a member of al Qaeda; is that

13 correct?

14 A. I didn't get you.


43/155

15 Q. The battles in Afghanistan, the battle against Russians in

16 Chechnia, the battles in Bosnia against the Serbs, the battles

17 against the Armies of the old Soviet ruler in Turjakistan,

18 those are the kinds of battles that you thought that you would

19 participate in as a member of al Qaeda, isn't that correct?

20 A. Yes.

21 Q. Now, the Egyptian jihad group mostly kept to themselves in

22 Sudan; is that right?

23 A. Yes.

24 Q. They had their own guest house?

25 A. I think so.


1389

12Q1BIN2

Kherchtou - cross

1 Q. They had their own farm?

2 A. I don't know.

3 Q. Now, there was people that you understood who were

4 recently Egyptian Islam jihad like Mr. Banshiri and Abu Hafs

5 who were with Bin Laden since the beginning, is that right?

6 A. You mean Jalal --

7 Q. Abu Hafs and Banshiri were with Mr. Bin Laden from way

8 back in Afghanistan in the late '70s, '79, '80, '81 something

9 like that, is that right?

10 A. They were there before I we came to Pakistan.

11 Q. Were they back then members of the Egyptian jihad?

12 A. I don't think so.

13 Q. Were they al Qaeda people?

14 A. Excuse me?


44/155

15 Q. Whether they were actually bayat or not, they were with

16 the al Qaeda people?

17 A. Well, they are leaders in the al Qaeda.

18 Q. Do you know a person named Kalal?

19 A. Yes.

20 Q. That person you understood was arrested in Croatia?

21 A. Which Kalal?

22 Q. The one who was arrested in Croatia?

23 A. I know him.

24 Q. And what organization was he part of?

25 A. He's from Sheik Rahman.


1390

12Q1BIN2

Kherchtou - cross

1 Q. He was arrested in Kuwait and the Americans gave him --

2 MR. FITZGERALD: Objection, to 401, Judge.


4 Q. I'll rephrase that question. Now, it was your

5 understanding that --

6 MR. FITZGERALD: Objection to 401.

7 Q. -- that the Egyptian --


9 Q. Was he with the Sheik Rahman group?

10 A. Yes.

11 Q. Now, it's your understanding that that group of people

12 were very angry at the Americans for giving Kalal to the

13 Egyptian government, isn't that correct?

14 MR. FITZGERALD: Objection, your Honor, 401.

15 THE COURT: We'll take our mid-morning recess at this


45/155

16 point.


18

19

20

21

22

23

24

25


1391

12Q1BIN2

Kherchtou - cross

1 (Jury not present)

2 MR. FITZGERALD: I have three objections, your Honor.

3 During my direct examination Mr. Schmidt has tried to hold us

4 to a very narrow exception to the hearsay rule and

5 coconspirator statements, but on cross-examination he thinks

6 he can ask everyone, what do you think.

7 Number two, to what the organization believes is as

8 to what happens to a particular person who is directed by

9 where he was who may have taken him to a country or not

10 whether that's true or not it is unfairly prejudicial.

11 Number three, we have sent out much evidence of what

12 the Egyptian groups have done at the defense requests, they

13 are killing people, bombing people and strafing tourist buses

14 in Egypt, and yet all we get is questions about what will

15 happen to people in al Qaeda if they go foe back to Egypt.


46/155

16 They want to keep out the violence but they want to

17 present before the jury that the Egyptians, one of the people

18 playing soccer blew up the Egyptian in Islamabad. The defense

19 wants us to keep out anything that's bad that these people did

20 so the defendants aren't prejudiced, but get in everything

21 that anyone perceives the foreign government might have done

22 wrong in trying to link it to the American government.

23 I think it's improper. I don't see it goes to the

24 witness' credibility. I don't see it goes to the issues in

25 this case whether or not Wadih el Hage joined the conspiracy


1392

12Q1BIN2

Kherchtou - cross

1 to kill Americans, what it is that a different group that he

2 didn't belong to thinks may have happened to a persona in a

3 foreign country.

4 THE COURT: There is another objection, and that is I

5 don't find it in the rules of evidence the tediousness is also

6 a factor.

7 MR. SCHMIDT: Your Honor, if I may be heard.

8 THE COURT: Of course you may.

9 MR. SCHMIDT: The government has brought out hearsay

10 on their direct examination concerning plots supposedly by EIJ

11 members as part of al Qaeda to kill or attack Americans as a

12 result for revenge purposes. They brought that out on their

13 case. We are counteracting that to show that while there is

14 discussions there, it's -- may I have a moment?

15 (Pause)

16 MR. FITZGERALD: Your Honor, I believe that first


47/155

17 came up in the case when Mr. Schmidt cross-examined Mr. Al

18 Fadl about whether or not he first raised the issue in 1997

19 that he had first raised in October, 1996. In any event, the

20 indictment does charge that Egyptian Islamic jihad was working

21 with Usama Bin Laden fatwas. It's not hearsay. It's part of

22 this conspiracy. The jihad group and al Qaeda merged and

23 worked together for all practical purposes. That is not

24 hearsay. Getting into what happened in Croatia or Egypt and

25 other things --


12Q1BIN2

Kherchtou - cross

1 MR. SCHMIDT: What I'm trying to do, your Honor, the

2 first witness Mr. Jamal tried to make it seem that they were

3 altogether back in '93, '94, '95. What I'm trying to do with

4 this witness is show in truth they were not all together.

5 THE COURT: All together in all activities as to all

6 things, but now assuming that's your objective, have you now

7 not exhausted that topic?

8 MR. SCHMIDT: No, I've not exhausted that topic. I

9 have some other issues that Jamal went through that I need to

10 go with this witness to go through to get the accurate

11 picture.

12 THE COURT: To this witness' knowledge.

13 MR. SCHMIDT: This witness' knowledge.

14 THE COURT: What is the ultimate point you're trying

15 to make?

16 MR. SCHMIDT: We have no dispute --


48/155

17 THE COURT: Fill me in on what the actual point that

18 you're trying to make is what.

19 MR. SCHMIDT: That EIJ and Islamic group was a very

20 separate, has a very separate identity that al Qaeda in '92,

21 '93, '94, '95, '96 until some point in '98 when they came out

22 with a joint declaration. I am trying to show that indeed

23 that they did have a separate identity that and they were not

24 mixed like Mr., like Jamal Al Fadl led the jury to believe.

25 They didn't merge until 19998. The jury has been left with a


139412Q1BIN2

Kherchtou - cross

1 misimpression from the government's first witness and that's

2 what I'm struggling with, your Honor.

3 THE COURT: You know, Mr. Schmidt, you're a very

4 skilled and experienced attorney, and the point as you just

5 expressed it now it seems to me does not require an hour and

6 twenty minutes of examination of the witness which only leads

7 more to obfuscation than it does to clarity.

8 I'll permit you to question the witness as to his

9 personal knowledge of these events, but I do suggest that if

10 you're really trying to communicate something to the jury an

11 hour of asking a list of names is not a very effective way of

12 doing it. We'll take a five minute recess.

13 (Recess)

14 (In open court; not jury present)

15 MR. SCHMIDT: The stipulation as to the exhibit

16 should be in the presence of the jury, not in presence of the

17 witness.


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18 MR. FITZGERALD: I would ask your Honor to advise the

19 jury that it was stipulated that the person in the picture

20 Wadih El Hage Exhibit WEH C is Jamal Al Fadl. Your Honor, I

21 would just ask for a instruction separate from the stipulation

22 that if the witness testifies as to his understanding of what

23 it is the American government did or didn't do, that's not

24 offered for the truth of the matter asserted, just for --

25 THE COURT: I'll do that when there is a particular


1395

12Q1BIN2Kherchtou - cross

1 question.

2 MR. SCHMIDT: Your Honor, if it's a discussion of a

3 quote coconspirator conversation then it can be offered for

4 the truth.

5 THE COURT: If it's a statement in furtherance of the

6 conspiracy by a coconspirator.

7 MR. SCHMIDT: That's correct.

8 MR. FITZGERALD: Your Honor, with regard to that, if

9 people are talking about taking action because they perceive

10 the Americans are wrong, the relevance is that they are taking

11 action, not the coconspirator statement whether it's true or

12 not, it's irrelevant. If they think American did a bad act

13 that's to state of mind. This doesn't prove that America did

14 a bad act.

15 MR. SCHMIDT: I have no disagreement with that.

16 THE COURT: You marked that photograph WH exhibit C.

17 Bring the jury in, but not the witness and then the witness.


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18 I'll tell you when to bring in the witness.


20

21

22

23

24

25


1396

12Q1BIN2

Kherchtou - cross

1 (Jury present)

2 (Witness not present)

3 THE COURT: I understand that the parties have

4 reached a stipulation with respect to exhibit WEHC for

5 identification which is a photograph shown to this witness.

6 Will you state the stipulation, please?

7 MR. SCHMIDT: Yes, your Honor. It was stipulated

8 between the government and the defendant Wadih El Hage that

9 the photograph is of Jamal Ahmed Mohammed Al Fadl.

10 MR. FITZGERALD: That's right, Judge.

11 THE COURT: So stipulated. All right. Bring the

12 witness in, please.

13 (Witness resumed)

14 Q. Mr. Kherchtou, you heard that the Americans gave Talal to

15 the Egyptian government; is that correct?

16 MR. FITZGERALD: Objection, foundation.

17 MR. SCHMIDT: It's not for the truth, your Honor.

18 It's state of mind.


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19 MR. FITZGERALD: I'll withdraw the objection.

20 Instruction as to the state of mind.

21 THE COURT: I understand the question that is going

22 to be asked of what this witness heard or understood, and

23 understand that that testimony is relevant to this witness'

24 understanding and this witness' state of mind, and not

25 evidence of the truth of what it is that he had heard.


1397

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Kherchtou - cross

1 The law provides that statements made by

2 coconspirators in furtherance of the conspiracy are

3 admissible. In other words, the usual hearsay rules which

4 would preclude testimony of what other people, not witnesses,

5 said recognizes an exception and the exception relates to

6 statements made by coconspirators in furtherance of the

7 conspiracy, not just casual observations about irrelevant

8 things.

9 But we've heard an awful lot of testimony by

10 witnesses who have said that they were members of al Qaeda and

11 this is what other members of al Qaeda said, and that

12 testimony has been received without limitation. So there is

13 that distinction between statements made by coconspirators in

14 furtherance of the conspiracy and other statements which are

15 being offered simply to show the state of mind of the

16 listener. Sometimes the distinction may be obvious, in which

17 case the attorneys may request or I may on my own impose a

18 limitation.


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19 Q. You may answer the request.

20 THE COURT: You'd better restate the question.

21 Q. Did you understand that Talal was given over by the

22 American government to the Egyptian government?

23 A. Yes.

24 Q. Was that information part of a discussion that you ever

25 had with al Qaeda members?


1398

12Q1BIN2

Kherchtou - cross

1 A. Yes.

2 Q. Would it be fair to say that al Qaeda did not ever discuss

3 any type of revenge against the Americans as a result of this

4 Islamic group member being turned over to the Egyptians?

5 Would that be a fair statement?

6 (Witness consults with interpreter)

7 A. No.

8 Q. That is not a fair statement or it is a fair statement?

9 Let me rephrase the question.

10 A. Okay.

11 Q. Was there any discussion that you heard of any revenge by

12 al Qaeda against the Americans for what happened to Talal of

13 the Islamic group?

14 A. No.

15 Q. Now, you also heard that Sheik Rahman the leader of the

16 Islamic group was arrested in the United States; is that

17 correct?

18 A. Yes.

19 Q. And any discussion of revenge for his arrest came from the


53/155

20 Egyptian group, the Islamic group, is that correct?

21 A. I didn't hear anything.

22 Q. Did you hear anything in al Qaeda about any revenge from

23 al Qaeda?

24 A. No, but the, there was talking that they didn't like the

25 fact that one of the Islamic scholars were arrested in the


1399

12Q1BIN2

Kherchtou - cross

1 United States.

2 Q. They opposed the United States arresting Sheik Rahman?

3 A. Yes.

4 Q. Do you recall the first time that you met Mr. El Hage?

5 A. Wadih El Hage?

6 Q. Yes.

7 A. Yes.

8 Q. Was that in the Sudan?

9 A. I don't remember exactly if I met him in Sudan or I was

10 visiting in the beginning, but I remember very well when he

11 came the first time to Kenya.

12 Q. So you may have heard about Mr. El Hage prior to him

13 coming to Kenya but you're not sure if you saw him?

14 A. Yes, I heard about him, yes.

15 Q. Now, you looked at a photograph of Mr. El Hage that the

16 government showed you with a beard. Do you remember that?

17 A. Yes.

18 Q. And do you remember that you had some difficulty saying

19 for certain whether that was Mr. El Hage or not?


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20 A. No, I didn't recognize, they gave me a bunch of pictures,

21 I didn't recognize him, and the second time I think the second

22 day I recognized him.

23 Q. Now, many people when they were in the Sudan dressed and

24 their facial hair was more in comportment with traditional

25 Islam look, is that correct?


1400

12Q1BIN2

Kherchtou - cross

1 A. Not all of them.

2 Q. But some of them did?

3 A. Yes.

4 Q. And sometimes it was difficult recognizing somebody who

5 you saw with a full Islamic beard and maybe an Islamic outfit

6 when you see them in western clothes and clean shaven?

7 A. It is changes.

8 Q. There is only one Abu Ahmed that you know of, is that

9 correct?

10 A. Which Abu Ahmed.

11 Q. That's and Abu Ahmed who was an Egyptian artillery

12 specialist that you knew from Afghanistan; is that correct?

13 A. There is no artillery specialist.

14 Q. The person is also known as Abu Ahmed al Houn?

15 A. There is no Abu al Houn.

16 Q. Now, what you learned about Mr. El Hage even before

17 meeting him was that he was a person who was one of the first

18 ones to come to Afghanistan; is that right?

19 A. Yes.

20 Q. Now, were you aware that he actually came from the United


55/155

21 States to Afghanistan?

22 A. I heard that.

23 Q. That was especially among al Qaeda people that somebody

24 that early on in the Afghani freedom war would come from the

25 United States?


1401

12Q1BIN2

Kherchtou - cross

1 A. No, we had people that came from all over the world.

2 Q. Now, so is it fair that you do not know -- withdrawn.

3 You have no actual knowledge that Mr. El Hage ever

4 took bayat in al Qaeda, is that correct?

5 A. Yes.

6 Q. And it's your understanding that Mr. El Hage was

7 considered a very trustworthy person., Is that right?

8 MR. FITZGERALD: Objection to form. By who?

9 Q. By Mr. Bin Laden.

10 A. Yes.

11 Q. And one of the reasons that you're aware of that he was

12 considered trustworthy person is because of his early

13 assistance given to the Afghani cause; is that right?

14 A. Because he was one of the first people who went to

15 Afghanistan.

16 Q. That was really before, certainly before al Qaeda; is that

17 correct?

18 A. Probably, yes.

19 Q. That was before the Services Office opened up in Pakistan?

20 MR. FITZGERALD: Objection to competence, your Honor.


56/155

21 THE COURT: Restate the question.

22 Q. Have you ever heard of the services offices or Makda?

23 A. Makda Bakalmak.

24 Q. That's also called the Services Office; is that right?

25 A. Yes.


1402

12Q1BIN2

Kherchtou - cross

1 Q. Loosely translated?

2 A. Yes.

3 Q. That was set up by Mr. Azzam and Mr. Bin Laden back in

4 1985, '86, is that right?

5 THE COURT: If you know.

6 A. No, I don't know.

7 Q. You got to know Mr. El Hage fairly well?

8 A. Yes.

9 Q. Physically would you consider him a big person or a slim

10 person?

11 A. Well, he's a slim person.

12 Q. Were you aware of the birth defect in one of his arms?

13 A. Yes.

14 Q. Do you recall which arm, the hand he writes with?

15 A. I think his left hand writing.

16 Q. And the arm that suffers the wither they are from his

17 birth defect in his right arm?

18 A. Right hand.

19 Q. Now, there is though a person who may be Lebanese, an

20 American that actually does have blondish hair. Do you

21 remember that person?


57/155

22 A. No.

23 Q. Do you remember a person at the Institute of Technology

24 that you met who was a Lebanese or Syrian American that had

25 blonde hair?


1403

12Q1BIN2

Kherchtou - cross


2 Q. Do you recall who was in charge of studies at the

3 institute?

4 A. At which institute, please.

5 Q. The Institute of Technology that you went to? In

6 Pakistan?

7 A. Yes.

8 Q. You believe that that person was a Syrian or a Lebanese

9 American?

10 A. Yes.

11 Q. Now, to the best of your knowledge you arrived in Nairobi

12 sometime around October of 1993; is that right?

13 A. Yes.

14 Q. And you stayed there for a short period of time went back

15 to the Sudan for about 20 days and then came back to Nairobi

16 is that right?

17 A. Yes.

18 Q. And soon after that is when Abu Hafs and others came in

19 the airplane from the Sudan?

20 A. I wasn't there when he came. I really told that he came

21 there, but I wasn't there.


58/155

22 Q. You weren't present in Nairobi when the airplane was flown

23 from Khartoum to Nairobi?

24 A. It was before I arrived to Nairobi.

25 Q. Now, Mr. El Hage arrived -- did Abu Ahmed leave Nairobi


1404

12Q1BIN2

Kherchtou - cross

1 before Mr. El Hage arrived?

2 A. I think so.

3 Q. Would it be fair to say that Mr. El Hage arrived some time

4 in the fall of 1994?

5 A. Yes, he came in '94.

6 Q. Would it be fair that it was in autumn, the fall?


8 Q. Did Mr. El Hage boss you around?

9 A. Excuse me?

10 Q. Did he boss you around? Did he give you orders, go do

11 this, go do that, go do this?

12 A. No.

13 Q. You were still taking your flying lessons, is that right?

14 A. Yes.

15 Q. And still traveling back to Sudan as often as you could to

16 stay with your family as often as you could?

17 A. Yes.

18 Q. And when you went around, you have to share a room with El

19 Hage for a while, is that correct?

20 A. Yes.

21 Q. And he treated you as an equal?

22 A. Yes.


59/155

23 Q. And with respect?

24 A. Yes.

25 Q. And together you looked for a house for him and his


1405

12Q1BIN2

Kherchtou - cross

1 family, is that right?

2 A. Yes.

3 Q. And you knew that he had his family in Khartoum that he

4 was very anxious to bring them over to Nairobi to be together.

5 Is that right?

6 A. Yes.

7 Q. And you knew Nairobi much better than he did because you

8 had been there for a while by the time Mr. El Hage arrived; is

9 that right?

10 A. Yes.

11 Q. You were leading the search for the house?

12 A. Yes.

13 Q. And the house has -- withdrawn. The house has a wall

14 around the whole piece of property; is that right?

15 A. Yes.

16 Q. And that's not uncommon in middle class section of Nairobi

17 is it?

18 A. Yes.

19 Q. It's common, isn't it? It's common to have that wall

20 around the home for protection in Nairobi?

21 A. Well, Nairobi is a dangerous city.

22 Q. Well, if you live in an area where you can afford there


60/155

23 was an area that was sort of in between Nairobi and the

24 airport you ultimately found out, is that right?

25 A. Yes.


1406

12Q1BIN2

Kherchtou - cross

1 Q. And the development that really stood alone with many

2 houses in one area where you turned off the road for the

3 airport and it was surrounded by empty field?

4 A. Yes.

5 Q. And each house there had a wall around the compound?

6 A. Yes.

7 Q. That's because Nairobi is a somewhat dangerous city and

8 for security purposes if you could have a house with that wall

9 you would want one?

10 A. Yes.

11 Q. And within that wall there are actually two buildings?

12 A. Yes.

13 Q. One was the building where Mr. El Hage lived with his wife

14 and many children, is that right?

15 A. Yes.

16 Q. And there was a back room that had a separate living area

17 and a bathroom where you were staying initially?

18 A. Yes.

19 Q. And to get into that back room you did not have to come

20 into the main house. You can get there from the driveway, is

21 that right?

22 A. Yes.


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23 Q. How long did you stay there?

24 A. Well, I don't remember exactly how long.

25 Q. Did you stay in your own apartment for a little while?


1407

12Q1BIN2

Kherchtou - cross

1 A. No, I don't understand.

2 Q. When did you return to the Sudan in 1995?

3 A. Probably the end of '95, yes, or early '96.

4 Q. Now, where did you live that whole time?

5 A. Where in the Sudan or in Kenya?

6 Q. In Kenya.

7 A. Well, what happened is exactly when we left and we gave me

8 him and Hasan together, but when he got that house I moved to

9 the place with him, and it was time for the exam for flying

10 course I was taking then I was going to Sudan and came twice.

11 Once I think when I was doing the exams and another time when

12 I was renewing the license.

13 Q. Was that the only time that you were in Nairobi during

14 '94, '95 and Mr. El Hage was there?

15 A. Yeah.

16 MR. FITZGERALD: Objection to form.

17 THE COURT: Restate the question.

18 Q. Mr. El Hage moved in some time in 1994, is that right?

19 A. Yes.

20 Q. And his family joined him, correct?

21 A. Yes.

22 Q. And you were in the separate building at his home, right?

23 A. Yes.


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24 Q. Then you took your exam shortly thereafter?

25 A. Yeah, I think I don't know exactly when in '95.


1408

12Q1BIN2

Kherchtou - cross

1 Q. Early '95?

2 A. I don't remember, because when after the exams I went back

3 to Sudan. Then I came back after a year start to renew the

4 license for the pilot.

5 Q. So after the exam you basically left Nairobi?

6 A. Yes.

7 Q. So the only time that you spent with Mr. El Hage was the

8 period when he came until the exam?

9 A. Yeah, he came, I stayed a while but I don't remember how

10 long it was.

11 Q. Two or three months?

12 A. Probably, yes, more.

13 Q. Now, you came to renew your license is that in 1995 or

14 1996?

15 A. I don't remember the date.

16 Q. Well, did you get your license after the exam?

17 A. Yes.

18 Q. How long was that license good for?

19 A. One year. Then I have to renew.

20 Q. So it's likely if you received your license sometime in

21 1995 you came back in 1996?

22 A. Yes.

23 Q. Now, you told us previously that the person handling the


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24 money in al Qaeda would not give you -- withdrawn. You told

25 me that Mr. Bin Laden would not give you money to renew your


1409

12Q1BIN2

Kherchtou - cross

1 license?

2 A. Yes, they refused to give me the money.

3 Q. Because al Qaeda didn't have -- withdrawn. You stated

4 that money was too tight to spend it on renewing your license,

5 is that right?

6 A. Yes.

7 Q. You still came to Nairobi, is that right?

8 A. Yes.

9 Q. And you asked Mr. El Hage to help you renew your license,

10 is that right?

11 A. Yes.

12 Q. And even though Mr. Bin Laden said no, Mr. El Hage helped

13 you with the money?

14 A. Yes.

15 Q. He helped you with that even though at that time things

16 were very poor for Mr. El Hage's economic condition; is that

17 right?

18 A. Repeat the question, please.

19 Q. There came a time where the economic conditions for Mr. El

20 Hage in taking care of his family and himself became

21 difficult?

22 A. Yes.

23 Q. And, in fact, he was trying to make all types of business

24 deals that he could to try to raise money and help support him


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25 and his family; is that right?


1410

12Q1BIN2

Kherchtou - cross

1 A. Yes.

2 Q. There were a number of times that you actually were

3 involved in some of the business deals that Mr. El Hage was

4 trying to accomplish; is that right?

5 A. Yes.

6 Q. Now, for example, when you were working for Abu Abdallah

7 there was a sugar deal that Mr. El Hage was trying to do. Is

8 that correct?

9 A. Yes.

10 Q. And that was with Mr. Abu Abdallah, is that right?

11 A. Yes.

12 Q. That was just a plain straight business deal, is that

13 right?

14 A. Yes.

15 Q. And you were supposed to fax him information concerning

16 some prices?

17 A. Yes.

18 Q. He actually called you in one of his faxes Captain Jamal,

19 do you remember that?

20 A. Yes.

21 Q. Is that a code name or more like a joke?

22 A. No, it's my nickname was Jamal at a time and captain

23 because I had renew my license at that time.

24 Q. That had nothing to do with al Qaeda or anything like


65/155

25 that?


1411

12Q1BIN2

Kherchtou - cross

1 A. No.

2 Q. And Abdul Rakim also tried to be involved in that sugar

3 transaction, is that right?

4 A. Yes.

5 Q. And while you were in Kenya when Mr. El Hage was there did

6 you say that you never saw him prepare any type of report?

7 A. I saw him he had his own computer, and what he's doing is

8 something he was doing something there.

9 Q. He was typing letters and faxes and -- business

10 situations?

11 MR. FITZGERALD: Objection, competence.


13 Q. Did you ever tell the government that you never saw Mr. El

14 Hage writing reports?


16 Q. I understand you it's a little while ago and you answered

17 lots of questions. Let's see if we can refresh your

18 recollection. I'm going to ask you to take a look at what's

19 been marked 3535-9, page 19, where I made a little block.

20 MR. SCHMIDT: May I approach the witness?

21 THE COURT: The question isn't what it says there.

22 the question is whether reading that refreshes your

23 recollection of a specific event.

24 Do you understand? Do you understand what I've just

25 said?


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1412

12Q1BIN2

Kherchtou - cross

1 THE WITNESS: No, sir.

2 MR. SCHMIDT: May I, your Honor?

3 Q. I ask you to look at what's marked over there. Having

4 read that does that help you remember whether you told the

5 government that you never saw Mr. El Hage writing reports?

6 A. Yes.

7 Q. It helped you remember that?

8 A. Yeah, he didn't write anything in front of me.

9 Q. Did the government show you a document that was called the

10 security report?

11 A. Yes.

12 Q. Did you read it?

13 A. Yes.

14 Q. Having reviewed it was it your belief that the person who

15 wrote it was Harun?

16 A. Yes.

17 Q. And was not Mr. El Hage; is that correct?

18 A. I don't remember exactly.

19 Q. To your knowledge you were aware that Harun -- withdrawn.

20 You knew a person name Harun, didn't you?

21 A. Yes.

22 Q. And you knew him from Nairobi; is that correct?

23 A. Excuse me?

24 Q. You knew him from Nairobi, is that correct?

25 A. Knew him what?


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1413

12Q1BIN2

Kherchtou - cross

1 Q. Did you know Harun from Nairobi?

2 A. No, from Pakistan Afghanistan.

3 Q. Did you ever see him, when was the last time you saw him

4 in Afghanistan?

5 A. Probably '92.

6 Q. Did there come a time that you saw him again?

7 A. Yes.

8 Q. Where did you see him again?

9 A. I saw him in Nairobi. I saw him in Sudan.

10 Q. When did you see him in Nairobi? How long had you been in

11 Nairobi before you saw Harun?

12 A. For a while.

13 Q. Did you become aware that Harun was involved in false

14 passports or other fraudulent documents?

15 A. Yes.

16 Q. Did you ever see Wadih El Hage involved with false

17 passports?

18 A. No.

19 Q. There came a time where Mr. El Hage left Nairobi --

20 withdrawn. You learned at some point that Mr. El Hage left

21 Nairobi for the United States; is that correct?

22 A. Yes.

23 Q. Do you know of

United States v. Bin Laden - Day 10 Transcript

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