United States v. Bin Laden - Day 11 Transcript

7/27/2019 United States v. Bin Laden - Day 11 Transcript

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

This is the transcript of Day 11 of the trial, February 27, 2001.

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

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1 UNITED STATES DISTRICT COURTSOUTHERN 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.

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8New York, N.Y.

9 February 27, 20019:50 a.m.

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12 Before:

13 HON. LEONARD B. SAND,

14 District Judge

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1 APPEARANCES

2 MARY JO WHITEUnited States Attorney for the

3 Southern District of New YorkBY: PATRICK FITZGERALD

4 KENNETH KARASPAUL BUTLER

5 Assistant United States Attorneys

6SAM A. SCHMIDT

7 JOSHUA DRATELKRISTIAN K. LARSEN

8 Attorneys for defendant Wadih El Hage

9 ANTHONY L. RICCOEDWARD D. WILFORD

10 CARL J. HERMANSANDRA A. BABCOCK

11 Attorneys for defendant Mohamed Sadeek Odeh

12 FREDRICK H. COHNDAVID P. BAUGH

13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

14 JEREMY SCHNEIDERDAVID STERN

15 DAVID RUHNKEAttorneys for defendant Khalfan Khamis Mohamed

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1507

1 (Trial resumes; jury not present)

2 THE COURT: Are there any matters that need be

3 addressed before the jury is brought in?

4 MR. FITZGERALD: No, Judge. I think Mr. Dratel is

5 going to lend me something that I needed, and we're good to

6 go.

7 THE COURT: All right.

8 MR. FITZGERALD: Thank you, Judge.

9 THE COURT: The witness can resume the stand.

10 The government's requests to charge is due on March

11 the 9th. Defendants' requests to charge are due on March

12 23rd, March 23rd. That is, the defendants on that day are to

13 reply to the government's requests and to furnish any

14 additional requests to charge. Obviously I will entertain

15 requests to charge subsequent to that date based on any

16 subsequent developments in the case.

17 It is my practice to give the jury a written copy of

18 the charge while it is being delivered. For that reason and

19 for other reasons, I am very strict about not entertaining

20 perfectly valid and proper requests to charge which are not

21 made at the charging conference or prior thereto. I do that

22 not simply because of the logistics of modifying a charge


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23 which is given to the jury in writing, but because any

24 supplemental instructions to the jury get blown out of

25 proportion.

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1 So please understand that the requirement that the

2 requests to charge which can be made at an earlier date will

3 not be entertained at the 11th hour, the 11th hour being the

4 charging conference, unless the circumstances indicate that

5 the request could not have been made earlier.

6 All right, let's bring in the jury, please.

7 Counsel for Al-'Owhali will next cross-examine the

8 witness, to be followed by Mr. Ruhnke on behalf of K.K.

9 Mohamed.

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

11 (Jury present)

12 THE COURT: Good morning. Just one other matter of

13 logistics, and that is on Tuesday, March 6th, we will start at

14 1:30. That's going to be post lunch and that is just for that

15 day.

16 I think our next order of business is

17 cross-examination on behalf of defendant Al-'Owhali by Mr.

18 Cohn.

19 L'HOUSSAINE KHERCHTOU, Resumes

20 CROSS-EXAMINATION

21 BY MR. COHN:

22 Q. Yesterday, Mr. Kherchtou, Mr. Wilford asked you some

23 questions about scholars disagreeing about the killing of the


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24 women, children and innocents. Remember those questions?

25 A. Yes.

1509

1 Q. It is a fact, is it not, Mr. Kherchtou, that no fatwah

2 issued by Usama Bin Laden or anybody else has called for the

3 killing of innocents, isn't that true?

4 A. Well, I don't remember the statement of Usama Bin Laden.

5 Q. You don't know?

6 A. Yes.

7 Q. So what you were talking about with Mr. Wilford was

8 speculation about if it had happened, then that's what would

9 have been the result; is that right?

10 (Witness consults with interpreter)

11 A. What I know, sir, is --

12 Q. Is that right, yes or no?


14 A. (Through the interpreter) The answer is no.

15 Q. It's not speculation? Have you ever seen an affidavit --

16 a fatwah issued by Mr. Bin Laden that called for the killing

17 of innocents and women and children?


19 A. (Through the interpreter) I heard of the statement --

20 Q. Have you ever seen a fatwah?

21 MR. FITZGERALD: May he complete the answer, your

22 Honor?

23 MR. COHN: Your Honor, may the answer be


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24 responsive -- not what he heard, but has he seen is the

25 question.

1510

1 THE COURT: All right. I'll permit that question to

2 be asked and permit counsel to inquire further on redirect if

3 it sees fit.

4 MR. COHN: Good.

5 Q. Have you ever seen such a fatwah?

6 A. (Through the interpreter) No.

7 Q. Let me show you what has been marked as Government Exhibit

8 1600-T in evidence.

9 MR. COHN: Your Honor, may I approach as needed

10 without asking each time?

11 THE COURT: Yes.

12 MR. COHN: Thank you.

13 Q. Have you ever seen that document before.


15 THE COURT: Are you showing him the English version?

16 MR. COHN: Yes.

17 A. (Through the interpreter) No, but I heard about it.

18 Q. Fine. So you don't know from seeing it whether there is

19 any such reference to killing women, children and innocents in

20 it, do you?


22 A. (Through the interpreter) What evidence?

23 Q. Excuse me?

24 THE INTERPRETER: The question which was posed by the


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25 witness is, what evidence?

1511

1 Q. Sir, you do not know from seeing that document whether it

2 has anything in it about killing women, children and

3 innocents, do you, from seeing it?


5 THE INTERPRETER: You want him to read it?

6 MR. COHN: No, I think he's never read it.

7 Never mind. The point's made, I'll withdraw it.

8 THE COURT: That comment is stricken and please avoid

9 similar comments.

10 MR. COHN: Thank you, your Honor.

11 Q. Let's turn to August 7th, 1998. That was the day you were

12 arrested at the airport, is it not?


14 A. (Through the interpreter) No.

15 Q. August 7th, 1998, the day of the bombing?


17 A. (Through the interpreter) I was arrested on the 11th of

18 August.

19 Q. On the 11 of August, okay.

20 Would you prefer to do this in Arabic, through

21 translation? Does that make you more comfortable, sir?


23 A. (Through the interpreter) It's the same.

24 Q. Fine, but we are -- you are turning to the interpreter on


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25 every question. I just want to get a system done that we can

1512

1 do this. Which do you prefer?


3 A. (Through the interpreter) Sometimes some of the words I do

4 not understand and I want to make sure that I'm giving the

5 correct answer.

6 Q. Well, you were interviewed in Nairobi for four days by

7 someone where there was a recording. Do you remember you

8 talked to Mr. Wilford about that?

9 A. Yes.

10 Q. And those interviews were done in English, were they not?

11 A. Yes.

12 Q. Four days' worth?

13 A. Yes.

14 Q. Was there an interpreter there?

15 A. No.

16 Q. You managed?

17 A. Yes.

18 Q. So you were arrested on the 11th; is that right?

19 A. Yes, sir.

20 Q. And you in fact had been concerned that you might be

21 arrested after the bombing; is that right?

22 A. Yes.

23 Q. But when you were arrested at the airport, you were

24 initially told that you were not under arrest, isn't that

25 true?


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1 A. Yes.

2 Q. And you were taken to some precinct or other; is that

3 right?


5 A. Yes.

6 Q. What time of day was that?

7 A. Around 9 or 10:00 in the p.m.

8 Q. P.M.?

9 A. Yes.

10 Q. Were you questioned at all that night?

11 A. No.

12 Q. Were you advised of any rights at all that you might have?

13 A. No.

14 Q. Were you told whether or not you were under arrest?

15 A. No.

16 Q. And where did they put you? Did they put you in some sort

17 of cell?

18 A. Yes.

19 Q. Describe the cell.

20 A. Well, it's a small room with many other criminals and no

21 bathroom in it and nothing on the floor in which you can

22 sleep. It has only one small window on the top of the cell,

23 and I think -- during the night, they closed the door and they

24 came back at 2:00 to make a check for everybody.

25 Q. Just describe the cell for us. I'll ask you about other


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1514

1 things. I'm just asking for a physical description of the

2 cell at the moment. Have you finished with that?

3 A. It's a small room, maybe four meters by four.

4 Q. Now, did you have a mattress?

5 A. No.

6 Q. Did you have a blanket?

7 A. No.

8 Q. Were there any washing or shower facilities available to

9 you?

10 A. There is a restroom in the other part, but if it's closed,

11 they gave us --


13 A. (Through the interpreter) -- a water jar or something.

14 Q. And that was for drinking water?

15 A. No.

16 Q. For bathing?

17 A. For if you had to --


19 A. (Through the interpreter) Just to piss in it.

20 Q. I'm sorry, I didn't catch it.

21 A. Just to piss in it.

22 Q. For elimination of your body waste?

23 A. (Through the interpreter) Urinate in.

24 Q. But they gave you nothing to wash your hands with or to

25 shower or to prepare yourself to pray or anything like that;


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1515

1 is that right?

2 A. Well, there is a toilet and bathroom where you can wash

3 your hands, but if the door is open you can go there.

4 Q. But the door wasn't open, right?

5 A. During the night it's not open.

6 Q. I see. Well, in fact -- well, we'll get to that.

7 Now, even before you were arrested you were concerned

8 about the Kenyan police, were you not?

9 A. Yes.

10 Q. I mean, you already knew that they were corrupt because

11 they had purchased -- they made you bribe them on your

12 brother's behalf, right?

13 A. Yes.

14 Q. And when I say they were corrupt, I'm not inferring that

15 all Kenyan police were corrupt, but that there was a

16 corruption problem, right?

17 A. Yes.

18 Q. Which you in fact thought was fairly systemic, did you

19 not? Do you understand that? That it was widespread

20 throughout the department?

21 MR. FITZGERALD: Objection, your Honor.

22 MR. COHN: It's his state of mind that I'm concerned

23 about, your Honor, not what he knows.

24 THE COURT: I'll allow it as not for the truth but

25 for this witness's understanding.


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1516


2 A. Yes.

3 Q. And in fact, by the 11th when you were arrested you knew

4 that there had been widespread deaths, destruction and

5 injuries to Kenyan citizens, didn't you?

6 A. Yes.

7 Q. And so at the time you were arrested, is it fair to say

8 that you were concerned about the Kenyan police's reaction to

9 that.


11 A. Yes, sir.

12 Q. Did anybody interview you on the 12th, the next day after

13 you were arrested?

14 A. No.

15 Q. Did anybody come to see you, tell you whether or not you

16 were going to be arraigned or could see a lawyer or what was

17 going on with you?

18 A. No.

19 Q. What about the 13th?

20 A. No.

21 Q. 14th?

22 A. I think on the 14th.

23 Q. What happened on the 14th?

24 A. It was two days or three days after that, some people came

25 to me and they were interrogating me.

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1 Q. You say the 13th or the 14th. Are the people that began

2 interrogating you at that time the Kenyan police, or was it

3 somebody else, some person from another country?

4 A. Somebody took me to meet that person.

5 Q. And you say that was three or four days after you were

6 arrested?

7 A. Yes, sir.

8 Q. Is that right?

9 A. Yes.

10 Q. Let me direct -- have you had an opportunity to look at

11 the 800-page transcript of your interviews from that period?

12 MR. COHN: I'm referring, your Honor, to, for the

13 record, I believe it's 3505-29.

14 Q. Have you had a chance to read that in preparation for your

15 testimony?

16 A. I don't remember the --

17 Q. It was a big stack of paper about this high which had what

18 purports to be a transcript of the recording that was made of

19 your debriefings. Have you looked at it?


21 A. (Through the interpreter) Which interrogation?

22 Q. The interrogation that took place over four days by this

23 person who wasn't a Kenyan that you say was three or four days

24 after you were arrested.


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1 A. (Through the interpreter) No, nobody showed me that.

2 Q. Okay. Well let me show you now pages 352 through 355.

3 MR. COHN: Bear with me one second, your Honor.

4 Q. I'm sorry, that's the wrong reference.

5 While I'm looking for this, how many days did this

6 interrogation take? Was it four, is that a fair statement,

7 four days in a row?

8 A. I don't remember exactly, but probably four or five times.

9 Q. How long were these interrogations, each of them, if you

10 can say?

11 A. It depends. The first one was very short and the others,

12 they are quite longer.

13 Q. Let me show you what is page 97 of that transcript.

14 THE COURT: You want to ask a question before you do

15 that?

16 MR. COHN: It's a refreshment question, your Honor.

17 THE COURT: As to what are you refreshing his

18 recollection?

19 MR. COHN: I will --

20 THE COURT: Go ahead.

21 MR. COHN: Fine.

22 Q. Let me show you page 97 and ask you to look at the top and

23 ask you if that refreshes your recollection as to what the

24 dates of your interrogation were.

25 Have you looked at it?

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1 Q. During the time that you were being held, including the

2 time that you were interrogated, did the Kenyan police ever

3 prefer charges against you?


5 A. No.

6 Q. And in fact, during that time you got no reading material;

7 is that right?


9 A. On the last days in the cell they brought me some

10 newspapers.

11 Q. The last days?

12 A. Yes.

13 Q. That was after, in fact, you asked your interrogator to

14 please get you some, at least a newspaper to read, isn't that

15 right?

16 A. Yes, at the last time, yes.

17 Q. So before that you had nothing to read to pass the time,

18 including the four days you say you weren't even questioned at

19 all?

20 A. Yes.

21 Q. And in fact, you asked your interrogator please to be able

22 to get you to bathe or get -- because you were filthy, you

23 smelled bad; is that right?

24 A. Yes.

25 Q. And you were ashamed of that, weren't you?

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1 A. Yes.


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2 Q. I mean, you are a religious person; is that right?

3 A. Yes.

4 Q. And you pray five times a day?

5 A. Yes.

6 Q. And you are required before you pray to wash?

7 A. Yes.

8 Q. And you had no water to wash with, right?

9 A. Well, sometimes it's difficult to find a clean place to

10 wash.

11 Q. Okay. Fine.

12 In fact, if there is no water available, you were

13 allowed to use clean earth instead; is that right?

14 A. Yes.

15 Q. And there wasn't any of that either because the floor was

16 filthy because it was used as a toilet, isn't that right?

17 A. Yes.

18 Q. And when you wanted to sleep, if you could sleep, you had

19 to lay down in the filth until this man who was interrogating

20 you got you a blanket and a mattress or pallet, isn't that

21 right?

22 A. Yes.

23 Q. And you complained to your interrogator that the Kenyan

24 police were treating you like an animal, isn't true?

25 A. It was once.

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1 Q. Yes, it was once. Is that right, but you did complain


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2 about it? You said that, didn't you?

3 A. Yeah, because I didn't sleep, I told him I was --

4 THE COURT: Can you repeat your answer?

5 A. I said I was trying to sleep, I was tired. He wanted to

6 interrogate me. I said I couldn't because I'm tired.

7 Q. Did you say at page 297 of the transcript that --


9 THE COURT: Sustained.

10 Q. Did you use the words "this guy treats me like an animal"?

11 MR. FITZGERALD: Asked and answered, your Honor.

12 MR. COHN: I don't think so, your Honor.

13 THE COURT: No, he did.

14 BY MR. COHN:

15 Q. In fact, you told him at one point you couldn't sleep

16 because you were cold, because the cell was kept so cold,

17 isn't that true?

18 A. Yes.

19 Q. And isn't it a fact, sir, that from the time you were

20 arrested until the time you -- I think you took a plane out of

21 there on the 21st; is that right?

22 A. Yes.

23 Q. Ten days passed; is that right?

24 A. Yes.

25 Q. And is it fair to say, sir, that until the very last day

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1 you didn't know whether they were going to put you on a plane;

2 they kept you, they kept you wondering about that, yes?


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3 A. Yes.

4 Q. Now, it's also true, is it not, sir, that this person told

5 you how to lie, isn't that right?


7 A. (Through the interpreter) Lie to whom?

8 Q. Fine, did he tell you how to create a cover?

9 A. Yes.

10 Q. And to create a cover, you had to tell untruths, right?

11 You couldn't tell the people that you were trying to keep from

12 finding out that you had been interrogated in this way the

13 truth or they would find out, right?

14 A. Yes.

15 Q. And did he tell you in fact that the best way to have a

16 cover and to tell these untruths was to keep it as close to

17 the truth as you possibly could so that there would be a large

18 measure of truth in your lie?

19 A. Yes.

20 MR. COHN: I have nothing further.

21 THE COURT: Mr. Ruhnke, on behalf of defendant K.K.

22 Mohamed.

23 CROSS-EXAMINATION

24 BY MR. RUHNKE:

25 Q. Mr. Kherchtou, to keep your testimony entirely accurate,

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1 I'm going to ask that you answer questions using the

2 interpreter throughout your testimony.


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3 A. Okay, sir.

4 Q. Sir, you were approximately 26 or 27 years old when you

5 decided to go to Afghanistan; is that correct?

6 A. Yes.

7 Q. You had grown up in Morocco, correct?

8 A. Yes.

9 Q. You had graduated from high school and also taken some

10 training in the field of catering, correct?

11 A. Yes.

12 Q. And after your training in catering, you lived in Europe

13 for a number of years, living in both France and Italy; is

14 that correct?

15 A. Yes.

16 Q. And by your own admission, until you went to Italy and had

17 contact with the people in Italy, you did not consider

18 yourself a very good Muslim; is that correct?

19 A. Yes.

20 Q. For example, you used to drink alcohol, which is forbidden

21 by Islam; is that correct?

22 A. No, I did not drink alcohol.

23 Q. In any event, you came to the time when you went to Italy

24 and you began talking about what was going on in Afghanistan

25 with other Muslims; is that correct?

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1 A. Correct.

2 Q. At the time, as you say, you were 26, 27 years old, you

3 were not married, you had no family, you were young, and it


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4 was something of an adventure, was it not, to go to

5 Afghanistan?

6 A. It was a duty as a Muslim.

7 Q. Did you describe it as an adventure to the foreign

8 intelligence officer that you met in Kenya after the bombing?

9 A. If I have said that, so that would be correct.

10 Q. Do you recall being asked this question and giving these

11 answers by the case officer who interviewed you, talking about

12 your decision to go to Afghanistan -- these are your words:

13 "So he was talking a lot about Afghanistan. You have to help

14 your people to do this, to do this, to do this."

15 MR. RUHNKE: You want to translate my sentence.

16 A. If I had said that, so that would be correct.

17 Q. And then you said to this case officer: "And some

18 Egyptian friend, like the one who was killed in Chechnya is a

19 very good guy. He told me, what do you think?"

20 A. I do not recall this conversation.

21 Q. I'm going to show you a document that I believe has a

22 Jencks number, and I'll ask you to look at the bottom of page

23 324 of that document on to page 325.

24 A. The bottom of here?

25 Q. The bottom of 324 onto the top of 325. Would you look at

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1 that, please.

2 (Pause)

3 Q. Have you now read that?


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4 A. (In English) Yes.

5 Q. Does that help you remember what you told the case officer

6 back in August of 1998?

7 A. At that time I was in jail I do not quite recall each word

8 that I have said, but --

9 Q. Does this appear to be an accurate transcript of what you

10 told the officer back in August of 1998?

11 A. Possibly it is correct.

12 Q. Did you tell the officer, "We are young. We don't know

13 anything. Let's go. It's an adventure of young. Yeah, let's

14 go. And we went."

15 Did you use those words to the case officer back in

16 August of 1998 or did you not use those words?

17 A. I do not quite recall each word that I have articulated,

18 but when I saw this, it's very possible that I have said that.

19 Q. Now, your purpose, in any event, was to go help Muslims

20 who were in trouble; is that correct?

21 A. Correct.

22 Q. And you traveled to, first to Karachi, which is in

23 Pakistan, correct?

24 A. Yes.

25 Q. And from Karachi, Pakistan you traveled to Peshawar,

1527

1 Pakistan, correct?

2 A. I went to Islamabad then Peshawar.

3 Q. And Peshawar is a town, it's been established, that is

4 near the border to Afghanistan, correct?


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5 A. Correct.

6 Q. At the time you went to Afghanistan, were the Russian

7 troops still in Afghanistan?

8 A. They Communist's regime was there and there were Russians

9 assisting them.

10 Q. But the Russian army had withdrawn from Afghanistan by

11 that point; isn't that correct?

12 A. Correct.

13 Q. And what was going on in Pakistan at that point was that

14 the Russians had been driven out by the mujahadeen and now

15 they had returned to kicking out or overthrowing the

16 Russian-backed government, correct?

17 A. Correct.

18 Q. You underwent training for approximately two months,

19 correct?

20 A. Correct.

21 Q. And you trained in a camp in Afghanistan, correct?

22 A. Yes.

23 Q. Did this camp look like what we imagine a military base to

24 be like, made up of permanent buildings, thousands of people

25 there, or what did it look like?

1528

1 A. No, it was a small camp.

2 Q. How many people were in the camp when you were there,

3 including your trainers and people being trained?

4 A. It varied from time to time, but it never exceeded a


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5 hundred.

6 Q. After your training you were spoken to privately and asked

7 to become a member of al Qaeda, is that true?

8 A. Yes, and there were other people with me.

9 Q. To your knowledge, how many people in your training group

10 other than you and your friend, the veterinarian, the animal

11 doctor, were asked to become members of al Qaeda?

12 A. Between three and five.

13 Q. And how many people were in your training group?

14 A. It varied between ten and twelve.

15 Q. Ten to twelve in your group?

16 A. Yes.

17 Q. And after being asked to become a member of al Qaeda, they

18 asked you to take training -- "they" meaning al Qaeda as

19 leaders -- asked you to take training as a pilot, correct?

20 A. When? When was that? After I graduated? After I joined

21 al Qaeda?

22 Q. After you joined al Qaeda, you were asked to take training

23 as a pilot, correct?

24 A. I joined the al Qaeda in 1991 and I was offered the

25 training to be a pilot in 1993.

1529

1 Q. You also swore what we refer to as a bayat or a pledge to

2 al Qaeda, correct?

3 A. Yes.

4 Q. And you understood your purpose in al Qaeda was to fight

5 for Islam and to do good things for Muslims all over the


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6 world, correct?

7 A. Correct.

8 Q. As your beliefs progressed as a member of al Qaeda, you

9 came to understand that one purpose of al Qaeda was to kill

10 American nationals abroad, isn't that true?

11 A. Yes. Correct.

12 Q. And you became aware of the structure of al Qaeda. You

13 knew, for example, that Usama Bin Laden was the emir or the

14 leader of al Qaeda, correct?

15 A. Yes.

16 Q. The number two person in al Qaeda until he was killed in

17 the ferry accident on Lake Victoria in 1996 was Abu Ubaidah al

18 Banshiri, correct?

19 THE INTERPRETER: Can you kindly say the name again?

20 I could hardly understand.

21 MR. RUHNKE: That's probably not your fault.

22 Abu Ubaidah al Banshiri.

23 A. Yes.

24 Q. And that the military commander of al Qaeda was a man who

25 was known as Abu Hafs, correct?

1530

1 THE INTERPRETER: Abu who?

2 MR. RUHNKE: Hafs, H-A-F-S.

3 A. Abu Hafs, correct.

4 Q. And until Abu Ubaidah al Banshiri was killed in the ferry

5 accident, Abu Hafs was number three in the al Qaeda


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6 leadership, correct?

7 A. Yes.

8 Q. And then he became number two after the death of the

9 gentleman in the ferry accident, correct?

10 A. Yes.

11 Q. And al Qaeda had a ruling council called the shura

12 council, shura committee; is that correct?

13 A. The shura council.

14 Q. And there were other committees that made up the structure

15 of al Qaeda, correct?

16 A. Yes.

17 Q. For example, there was a religious committee that ruled on

18 religious-type issues, correct?

19 A. Yes.

20 Q. And did you become aware as a member of al Qaeda that

21 there was a man known as Abu Hajer al Iraqi?

22 A. Yes, he was present.

23 Q. Do you know that his correct name is Mamdouh Mahmud Salim?

24 A. I heard of his name.

25 Q. When I refer to Mr. Salim, I will be referring to Abu

1531

1 Hajer al Iraqi, okay?

2 A. Okay.

3 Q. Did you later come to learn that Mr. Salim had issued a

4 statement that it was Islamically correct that in attacking

5 enemies of Islam, if civilians were killed in that process,

6 that that would be permissible since if they were good people,


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7 they would go to paradise, and if they were bad people, they

8 would go to hell? Did you become aware of that statement?

9 A. I never heard of anything as such.

10 Q. You are aware that there was disagreement, and you

11 testified about disagreement within al Qaeda, as to whether it

12 was Islamically correct to kill civilians or not kill

13 civilians, is that true?

14 A. It's not a matter of disagreement, but killing innocent

15 people is not permissible in Islam.

16 Q. Was there disagreement over that issue within al Qaeda?

17 A. This fatwah came about in 1996 after Bin Laden went to

18 Afghanistan and people in Sudan, where I was, did not agree

19 about this.

20 Q. Did you tell the FBI agents who interviewed you in August

21 of the year 2000, August of last year, that many people were

22 against this fatwah?

23 A. This was the place where I was in Sudan.

24 Q. Are you telling me that many people were against this

25 fatwah?

1532

1 A. Correct.

2 Q. But there were also people who accepted the fatwah, isn't

3 that correct, within al Qaeda?

4 A. If they are convinced and their faith would allow them.

5 Q. I'm sorry, would you repeat that answer?

6 A. If they are convinced and their faith would allow them to


28/129

7 be convinced.

8 Q. So the answer is there were people whose faith allowed

9 them to become convinced of that; isn't that correct?

10 A. Possibly.

11 Q. In testifying here on your first day of testimony, you

12 discussed the structure of an al Qaeda operation and described

13 it as having four phases, is that true?

14 A. Correct.

15 Q. The first phase would be surveillance or

16 intelligence-gathering, correct?

17 A. Yes.

18 Q. The second phase would be for those who did the

19 surveillance and intelligence operation to report to the

20 leadership of al Qaeda, correct?

21 A. The second phase is that the leadership would study the

22 information that was presented to them or submitted to them.

23 Q. And then the leadership would decide whether to go ahead

24 with an operation or not, correct?

25 A. Correct.

1533

1 Q. If the leadership decided to go ahead, then a supply and

2 logistical group would bring whatever necessary material was

3 needed to carry out the operation, correct?

4 A. This is a military operation. This is a military thought.

5 Q. And after the supplies were brought to wherever the

6 operation was to take place, then the people who actually were

7 going to carry out the operation would go to the place; is


29/129

8 that correct?

9 A. Yes.

10 Q. When you were interviewed by the FBI beginning in the

11 summer of 2000, the year 2000, you initially did not tell them

12 about the people who came to your apartment in Nairobi to take

13 photographs and developed the negatives in your apartment,

14 correct?

15 A. Correct.

16 Q. That was not an mistake, you were nervous or afraid to

17 tell them about that because you were afraid you might be

18 connected to the bombing in Nairobi, correct?

19 A. Correct.

20

21 (Continued on next page)

22

23

24

25

1534

1 (The following testimony is conducted through the

2 interpreter)

3 Q. Did it occur to you, or was one of the reasons you lied to

4 the FBI that the surveillance and the pictures that were

5 developed in your apartment might have been the first phase of

6 the operation that led to the bombing of the embassy in

7 Nairobi?


30/129

8 MR. SCHMIDT: Objection, your Honor.

9 THE COURT: Objection sustained to the form of the

10 question.

11 Q. You testified a moment ago that you did not tell the truth

12 about the bombing -- I am sorry -- about the surveillance that

13 took place and the development of photographs in your

14 apartment, correct?

15 A. Correct.

16 Q. You testified that one of the reasons you didn't tell the

17 truth is you were afraid of being connected to the bombing of

18 the embassy in Nairobi, correct?

19 A. Correct.

20 Q. After the fighting in Afghanistan was concluded, there

21 were other areas in the world where Muslims were facing

22 difficulty, is that true?

23 A. Yes.

24 Q. One of those areas was the area of Bosnia Herzegovina,

25 correct?

1535

1 A. Yes.

2 Q. In fact, Muslims were facing in that area what has since

3 been called genocide under the name of ethnic cleansing, is

4 that correct?

5 A. Yes.

6 Q. And even after Afghanistan, hundreds of young Muslim men

7 continued to come to the training camps in Afghanistan,

8 correct?


31/129

9 A. Yes.

10 Q. And you participated in the training of some of those men,

11 is that correct?

12 A. Yes.

13 Q. According to your information and according to your

14 testimony, Mr. Salim, Mamdouh Mahmud Salim, also known as Abu

15 Hajer al Iraqi, was a well-respected member or well-respected

16 associate of Mr. Bin Laden's, is that correct?

17 A. Yes.

18 Q. He was somebody who had memorized the entire Koran. Did

19 you know that?

20 A. Correct.

21 Q. You have sometimes referred to Mr. Salim Abu Hajer al

22 Iraqi as Sheik Abu Hajer al Iraqi, is that correct?

23 A. Correct.

24 Q. The word Sheik in Arabic is a term used for someone worthy

25 of great respect, am I correct?

1536

1 A. Yes.

2 Q. Mr. Salim sometimes served, according to your testimony,

3 as the imam at the mosque during Ramadan, is that correct?

4 A. Correct.

5 Q. Even within Al Qaeda there were people paid salaries for

6 carrying out activities within Al Qaeda, correct?

7 A. Correct.

8 Q. You yourself in fact were paid a salary for many, many


32/129

9 years by Al Qaeda, is that true?

10 A. Correct.

11 Q. But there was a certain amount of unhappiness within Al

12 Qaeda among its members because people seemed to get

13 preferable treatment, is that correct?

14 A. Correct.

15 Q. The Egyptians, for example, many people in Al Qaeda

16 thought that they received preferable treatment over all other

17 members of Al Qaeda; is that true?

18 A. Not all the Egyptians.

19 Q. But some of the Egyptians.

20 A. Yes.

21 Q. With regard to Mr. Salim, Abu Hajer al Iraqi, there was a

22 time when he lived in a villa, he had a car, an office, he had

23 a very good salary from Al Qaeda; is that true?

24 A. Because he was the director of a company called Wadi al

25 Aqiq.

1537

1 Q. And Mr. Salim had also been one of the very early people

2 to go fight in Afghanistan; is that true?

3 A. Correct.

4 Q. You have pleaded guilty yourself to a conspiracy that

5 included the killing of Americans; is that correct?

6 A. Correct.

7 Q. For your role in your plea, do you face the death penalty?

8 A. No.

9 Q. You have been now admitted into the United States to live


33/129

10 here, correct?

11 A. Yes.

12 Q. The United States government paid for that, correct?

13 A. Yes.

14 Q. You have been living here since approximately September of

15 2000, correct?

16 A. Correct.

17 Q. And the government has agreed to assist you in becoming

18 part of what is known as the Witness Protection Program,

19 correct?

20 A. Yes.

21 Q. And the United States has paid to move members of your

22 family here to the United States also to live in this country,

23 correct?

24 A. Correct.

25 Q. How many members of your family has the government moved

1538

1 to this country?

2 A. My wife and three daughters.

3 Q. Since being in the United States, have you spent any time

4 in jail?

5 A. I am under surveillance 24 hours a day. I have an FBI

6 agent around the clock.

7 Q. Have you spent any time in jail?

8 A. No.

9 Q. When you go from place to place, are you placed in


34/129

10 handcuffs?

11 A. No.

12 Q. Although your guilty plea exposes you to a theoretical

13 life sentence, it is your hope that you will not go to jail at

14 all, for one single day; is that correct?

15 A. Nothing is guaranteed. I cannot guarantee that I am not

16 going to be incarcerated.

17 Q. Even though nothing is guaranteed, it is your hope that

18 you will not spend a single day in jail; isn't that true?

19 A. Yes.

20 MR. RUHNKE: Thank you. No further questions.

21 THE COURT: Redirect?

22 MR. FITZGERALD: Yes, Judge.

23 (The following testimony in English except where

24 noted.)

25 REDIRECT EXAMINATION

1539

1 BY MR. FITZGERALD:

2 Q. Good morning.

3 A. Good morning.

4 Q. Please feel free to answer questions in English or through

5 the interpreter, however you feel more comfortable.

6 You have been asked questions about what your

7 understandings are with the United States government, what you

8 expect to receive, and let me approach you with what has been

9 marked for identification as 3505-27 and ask you to take a

10 look at it. I will ask you if you recognize what that is?


35/129

11 A. (Through the interpreter) It is the agreement that I have

12 signed with the FBI after the interrogation.

13 Q. Are you testifying here today pursuant to that agreement?

14 (Interpreted)

15 A. Yes.

16 MR. FITZGERALD: Your Honor, I would offer that as

17 Government's Exhibit 4.

18 MR. COHN: In its entirety, your Honor?

19 MR. FITZGERALD: Yes.

20 MR. COHN: I object. I don't object to portions of

21 it but I don't think the proper foundation has been laid for

22 the entire document.

23 THE COURT: I will defer on that. We will take that

24 up during the mid-morning recess.

25 MR. FITZGERALD: Thank you, Judge.

1540

1 Q. Yesterday you were asked questions by Mr. Schmidt as to

2 whether or not members of the Egyptian groups Al Jihad and the

3 Islamic Group were afraid of being arrested and how they would

4 be treated if they went to Egypt. Do you recall those

5 questions?

6 A. Yes.

7 Q. The members of those groups, were they doing any violence

8 in or against Egypt?

9 A. Yes.

10 MR. SCHMIDT: Objection.


36/129

11 THE COURT: Does he know?

12 Q. Do you know if the members of those Egyptian groups were

13 doing violence in or against Egypt?

14 A. Yes.

15 Q. Were they?


17 THE COURT: How does he know?

18 Q. First of all, how did you know they were afraid of being

19 arrested in Egypt?

20 A. Everybody is talking about many people who are facing

21 death and many people were executed in Egypt.

22 Q. How do you know that they were doing violence in Egypt?

23 A. Many operations that we are talking in the guesthouse or

24 with the Egyptian guys, in the Sudan.

25 Q. So you were having conversations in the Sudan about

1541

1 operations in Egypt?

2 A. Sometimes they are saying what happened in Egypt.

3 Q. Did you understand that the Egyptian groups were carrying

4 out those operations?

5 MR. SCHMIDT: Objection, your Honor, for leading, and

6 the foundation has not been properly raised.

7 THE COURT: Overruled.

8 Q. Did you understand that those Egyptian groups were

9 carrying out those operations?

10 A. Yes.

11 Q. Did you know, yes or no, whether or not the Egyptian


37/129

12 groups blamed the United States government for any assistance

13 provided to the Egyptian government?

14 A. Yes.

15 Q. Did they? Did the Egyptian groups blame the American

16 government for support they perceived was given to the

17 Egyptian government?

18 THE INTERPRETER: Can you kindly repeat the question.

19 Q. Yes. Did the Egyptian groups blame the United States

20 government for any support they believed the American

21 government provided to the Egyptian government? (Interpreted)

22 MR. SCHMIDT: Objection, your Honor. Foundation as

23 to what these groups -- who in the group, what in the group.

24 THE COURT: Overruled. The court's rulings with

25 respect to the admissible scope on redirect is consistent with

1542

1 my rulings with respect to the scope on cross.

2 A. (Through the interpreter) the American government handed

3 over these people to the Egyptian government.

4 Q. And my question was, did the Egyptian groups blame or hold

5 responsible the American government for what they thought was

6 American government assistance to the Egyptians?

7 (Interpreted)

8 A. (Through the interpreter) Yes.

9 Q. You were asked questions yesterday about your working in

10 Wadi Al Aqiq and the tannery in the Sudan. Do you recall

11 those questions?


38/129

12 A. Yes.

13 Q. How long in total did you work for the company Wadi Al

14 Aqiq?

15 A. Probably a month and a half.

16 Q. How long did you work for the tannery?

17 A. Fifteen days, probably.

18 Q. Was that after you moved from Kenya to the Sudan?

19 A. Yes.

20 Q. Do you recall what year that was?

21 A. Sometimes in '95.

22 Q. You were asked about whether you had seen training in the

23 Sudan. Did you ever visit the Damazine facility in the Sudan?

24 A. No.

25 Q. You were asked questions yesterday and today about the

1543

1 content of statements or lectures given by the person known as

2 Abu Hajer al Iraqi. Can you tell us, in your entire life how

3 many of Abu Hajer's lectures you have personally attended?

4 A. I attended many lectures in the mosque.

5 Q. How many lectures by Abu Hajer in particular?

6 A. It was in Friday prayers, probably 10 times or more.

7 Q. You were asked questions about the Thursday meeting that

8 happened in Al Qaeda. Do you recall those questions?

9 A. Yes.

10 Q. Did you ever see Wadih El Hage at the Thursday meeting?

11 A. No.

12 Q. Approximately how many people would attend these meetings?


39/129

13 A. It depends. Sometimes 20, sometimes less, sometimes more.

14 Q. You were asked questions about Ahmed Hassan yesterday and

15 whether or not Ahmed Hassan was a member of Al Qaeda, and I

16 believe you testified that there were two Ahmed Hassans,

17 correct?

18 A. Yes.

19 Q. One was in Al Qaeda?

20 A. Yes.

21 Q. And one was not?

22 A. Yes.

23 Q. He was in the Al Jihad organization?

24 A. Yes.

25 Q. Let me approach you with what has been marked for

1544

1 identification as Government's Exhibit 202A-T. Is that a

2 transcript of a conversation for which you have listened to

3 the tape recording?

4 A. Yes.

5 Q. Is there a voice identified on that transcript as Ahmed

6 Hassan?

7 A. Yes.

8 Q. Do you know which Ahmed Hassan it is, whether it is the

9 person of Al Qaeda, the person in Al Jihad, or a different

10 person, if you know?

11 A. The person in Al Jihad.

12 Q. The Ahmed Hassan who is a member of the Egyptian Islamic


40/129

13 Jihad organization is the Ahmed Hassan on that transcript?

14 A. Yes.

15 Q. You were asked questions yesterday by Mr. Schmidt as to

16 when it was that Abu Mohamed el Masry went to Mogadishu. Do

17 you recall those questions?

18 A. Yes.

19 Q. So we are clear, Abu Mohamed el Masry is a person also

20 known as Saleh, is that correct?

21 A. Yes.

22 Q. You indicated that you thought it was before 1994 and then

23 Mr. Schmidt refreshed your recollection with a document. Do

24 you recall that?

25 A. Excuse me again.

1545

1 Q. You indicated that you thought Abu Mohamed el Masry went

2 to Somalia before 1994 yesterday. Do you recall that

3 testimony?

4 A. Yes.

5 Q. Do you recall Mr. Schmidt showing you a document to

6 refresh your recollection as to whether Mohamed el Masry went

7 to Somalia in 1994?

8 A. Yes.

9 Q. Let me show you that same document, 3505-7, page 4.

10 Mr. Kherchtou, I am going to show you that same document, that

11 same page, that same paragraph, 3505-7, page 4, and ask you

12 whether it refreshes your recollection that Abu Mohamed el

13 Masry went to Somalia for the purpose of fighting Americans


41/129

14 and also came to Kenya to bring the word from the Sudan that

15 the purpose was to fight against the Americans.

16 MR. SCHMIDT: Objection, objection, your Honor.

17 THE COURT: It is a convoluted question. Break it

18 down.

19 MR. SCHMIDT: Objection that it is also not proper

20 redirect examination, and also form.


22 Q. Let me show you 350-7, page 4, ask you to read a certain

23 paragraph, and then I will ask you a question.

24 MR. SCHMIDT: Your Honor, there is no reason to

25 refresh his recollection.

1546

1 THE COURT: I have ruled.

2 Q. Would you read the paragraph with blue ink on it. Don't

3 read it out loud. Read that paragraph to yourself.

4 A. Yes.

5 Q. Does that refresh your recollection as to whether Abu

6 Mohamed el Masry went to Somalia for the purpose of fighting

7 Americans?


9 THE COURT: I have ruled.

10 A. Yes.

11 Q. So whatever time it was that Abu Mohamed el Masry went to

12 Somalia, the American forces were there, correct?

13 A. Yes.


42/129

14 MR. SCHMIDT: Objection, your Honor. Objection.


16 Q. Is that the same Abu Mohamed el Masry you told us about

17 earlier that was in a building next door to a building that

18 was shot at by American helicopters?

19 A. Yes.

20 Q. Sir, you were asked yesterday whether or not you knew

21 whether certain people were members of Al Qaeda. Do you

22 recall those questions?

23 A. Yes.

24 Q. How many people saw you take or make your pledge of bayat?

25 A. I made bayat myself and the doctor of animals and the guy

1547

1 who was, who I was given the bayat, and I think one or two

2 others, I think.

3 Q. So a total of about five people were in the room?

4 A. Probably less.

5 Q. So some people you know were in Al Qaeda because you

6 actually saw them make the bayat, correct?

7 A. Yes.

8 Q. Some people you simply know are not in Al Qaeda, correct?

9 A. Excuse me again.

10 Q. There are some people you know do not belong to Al Qaeda,

11 right?

12 A. Yes.

13 Q. There are some people you are not sure of?

14 A. Yes.


43/129

15 Q. And there are some people you believe are in Al Qaeda but

16 not because you saw them make the bayat.

17 A. Yes.

18 Q. You were asked a dozen questions or more about who you

19 believed was in Al Qaeda. Do you recall those questions?

20 A. Yes.

21 Q. You were asked questions about whether or not Abu Ubaidah

22 and Abu Hafs even if they did not make the bayat were with the

23 Al Qaeda group. Do you recall that question?

24 A. Yes.

25 Q. You were asked whether you had personal knowledge that

1548

1 Wadih El Hage made the bayat. Let me ask you this: Did you

2 have an understanding of whether or not Wadih El Hage was a

3 member of Al Qaeda?

4 A. Yes.

5 Q. What was that understanding?

6 A. That he is from Al Qaeda.


8

9

10

11

12

13

14


44/129

15

16

17

18

19

20

21

22

23

24

25

1549

1 MR. FITZGERALD: I have nothing further, Judge.

2 THE COURT: Anything further of this witness?

3 MR. SCHMIDT: Yes, your Honor. May we have a moment,

4 your Honor?

5 THE COURT: Yes.

6 JUROR: Excuse me, your Honor.

7 THE COURT: You want to take a recess? We will take

8 a recess. It is recess time anyway.

9 (Jury excused)

10 THE COURT: We will take a recess.

11 (Witness excused)

12 (Recess)

13 (Jury not present)

14 MR. SCHMIDT: Your Honor, before we bring the jury

15 out I have a request.


45/129

16 THE COURT: Mr. Schmidt.

17 MR. SCHMIDT: Your Honor, during questioning by other

18 counsel I have at times made objections. When a question is

19 either rephrased or asked again in a different manner, I have

20 repeated my objections. My understanding is that objection to

21 one question does not satisfy for appeal if I do not object to

22 the subsequent question even though it is similar.

23 Your Honor has chastised me, perhaps unintentionally,

24 in front of the jury in a manner I do not believe the jury

25 should be seeing. I am simply attempting to make a proper

1550

1 record, and I ask your Honor, if your Honor indeed disagrees

2 with me, that you simply overrule my objection, and if your

3 Honor has difficulty with the manner that I make my objection,

4 that you do that outside the presence of the jury.

5 THE COURT: I don't know really what to say about

6 that. I don't believe that I chastise you. I know I did say

7 I have already ruled when it appeared to me that the objection

8 that you were making, that there was no apparent basis for the

9 reassertion of the objection.

10 Your concern is an appellate rule that says that

11 unless the objection is repeated after the question is

12 rephrased that it is not preserved. I am not aware of such a

13 rule. Where the objection was to lack of foundation or the

14 form of the question or something of that sort, then

15 reiteration of the objection to a rephrased question may be


46/129

16 appropriate.

17 It will be for others to judge the record, but I

18 certainly don't believe that I have been chastising counsel,

19 and indeed one of the, I think, relatively few bright spots

20 about the trial is that there has been relatively little

21 bickering among counsel or occasion for me to make comments.

22 I may comment about the impropriety of saying before the jury

23 that a point had been made, but other than that -- I note your

24 comments, Mr. Schmidt.

25 MR. COHN: In my own defense, remember this is a

1551

1 capital trial and not a Victorian tape.

2 THE COURT: I don't think that changes the rules as

3 to what is or is not appropriate comment before a jury.

4 MR. RUHNKE: Your Honor, not to jump into this too

5 far, there has been some annoyance expressed in the tone of

6 voice that your Honor used in ruling on objections,

7 particularly Mr. Schmidt. I rise not to protect Mr. Schmidt

8 but because it spills over on other clients. I just make that

9 point for the record, your Honor.

10 THE COURT: I understand that. I do understand and

11 appreciate the role of defense counsel in a case in which

12 cross-examination, and phrasing of objections may constitute a

13 major portion of the defense case. I bear that in mind. If

14 my tone of voice is not my usual amiable, genial tone of

15 voice, why then I apologize.

16 MR. COHN: Your Honor, do you want to take up the


47/129

17 document that I objected to part of?

18 THE COURT: Yes.

19 MR. COHN: I don't have it in front of me, but I

20 believe that the document has the usual paragraph or two about

21 truthful testimony as part of the deal.

22 THE COURT: Yes.

23 MR. COHN: As I recall the circuit law, you can only

24 get that part in where there has been a challenge to the

25 credibility of the witness, and I suggest to your Honor that

1552

1 there has not been, and a suggestion that he would lie --

2 THE COURT: That extensive examination as to the

3 conditions of his confinement -- I understand that Mr. Ruhnke

4 was making a record for another phase of this case, but

5 nevertheless, wasn't that all designed to challenge his

6 credibility?

7 MR. COHN: Not his credibility, actually, the

8 credibility of another witness coming up. I have never said

9 and I will not say on summation that he lied, and I don't

10 believe anybody else is making that argument.

11 THE COURT: If it wasn't relevant to his credibility,

12 what was the relevance of the conditions of confinement to

13 which he was subjected prior to --

14 MR. COHN: That he was making the statements that he

15 made at all, not to whether or not they are truthful. In

16 fact, he didn't testify that anything that touched my client


48/129

17 except in a general conspiracy way.

18 MR. FITZGERALD: Your Honor, Mr. Cohn himself

19 elicited that the person who debriefed him in the jail taught

20 him how to lie. That was how he ended his cross-examination.

21 I think that was directly put in, is this witness trained in

22 how to lie, and the cooperation agreement shows what his

23 incentives are with regard to telling the truth or lying.

24 MR. COHN: And I tell the court and I tell counsel

25 that I will make no argument that he is using that technique.

1553

1 THE COURT: So it was introduced for what purpose?

2 Why did you plant that seed in the jurors' minds, other than

3 to cast aspersions on his credibility?

4 MR. COHN: Your Honor, there will be another witness

5 who I will maintain is a liar and is using a technique that a

6 government witness was taught.

7 THE COURT: Do you want me to strike that testimony

8 and advise the jury that there is no challenge to the

9 witness's credibility? Of course you don't.

10 MR. COHN: I don't want you to strike the testimony,

11 but if you want to say that he is not lying, as far as I am

12 concerned, that is fine with me.

13 THE COURT: I am sure other counsel would object to

14 that. If the sole basis to the introduction of Government's

15 Exhibit 4 is that there has been no suggestion made that the

16 witness's testimony is not entirely credible, the objection is

17 overruled.


49/129

18 MR. SCHMIDT: I would just note, your Honor, that

19 again, the issues of a joined trial and the problems related

20 to it has again arisen based on the cross-examination of the

21 death-eligible defendants and the nondeath-eligible

22 defendants. We object to the admission of this document in

23 evidence, and we again move for a severance.


25 MR. FITZGERALD: Your Honor, I apologize.

1554

1 Government's Exhibit 4 should be called Government's Exhibit

2 5.

3 THE COURT: The witness described it as an agreement

4 with the FBI. Is it?

5 MR. FITZGERALD: It is the standard cooperation

6 agreement.

7 THE COURT: But it is addressed to the FBI?

8 MR. FITZGERALD: No, it's from the U.S. Attorney's

9 Office to the counsel for Mr. Kherchtou. I think he was

10 treating --

11 THE COURT: He said it is the agreement with the FBI.

12 MR. FITZGERALD: Right, and then said it is the one

13 he is testifying pursuant to. The document is a standard

14 cooperation agreement.

15 THE COURT: So I will tell the jury what we have

16 previously referred to as Exhibit 4 is Exhibit 5.

17 MR. FITZGERALD: Thank you, your Honor.


50/129

18 (Witness resumed)

19 THE COURT: While we are waiting, I have received a

20 copy of a letter relating to the testimony of the ambassador.

21 If there are any objections to the government's in limine

22 motion, then I would like to be apprised of that by 9:45

23 tomorrow morning.

24 MR. BAUGH: None from the defendant Al-'Owhali, no

25 objection.

1555

1 MR. RUHNKE: We have no objection, your Honor.

2 (Jury present)

3 THE COURT: Ladies and gentlemen, you recall that on

4 the government's redirect the government offered in evidence a

5 document which the witness says was his agreement with the FBI

6 after his interrogation and which was then referred to as

7 Exhibit 4. I deferred on whether or not it would be received

8 in evidence. First let me tell you that the correct

9 designation of that exhibit is Exhibit 5, and it is received

10 in evidence.

11 We are now at recross on behalf of the defendant El

12 Hage. Mr. Schmidt.

13 (Government's Exhibit 5 received in evidence)

14 (Examination in English except where noted)


16

17


51/129

18

19

20

21

22

23

24

25

1556

1 RECROSS-EXAMINATION

2 BY MR. SCHMIDT:

3 Q. Mr. Kherchtou, I think you answered questions on redirect

4 examination when by Mr. Fitzgerald that Abu Hafs and Al

5 Banshiri was part of Al Qaeda. Do you remember saying

6 something of that nature?

7 MR. FITZGERALD: Objection.

8 THE COURT: My notes don't have all the names, but I

9 will allow the question.

10 Did you testify to that effect?

11 THE WITNESS: He said Abu Hafs Banshir. There is no

12 Abu Hafs Banshir.

13 THE COURT: Would you state that into the microphone,

14 please.

15 Q. Abu Hafs and Al Banshiri.

16 A. Yes, the question, please, again.

17 Q. Did you testify on redirect that Abu Hafs and Al Banshiri

18 were part of Al Qaeda?


52/129

19 A. Yes.

20 Q. Because of their early arrival in Afghanistan, they had a

21 special role, is that right?

22 A. Yes.

23 Q. You have indicated that you don't know if they ever took

24 bayat, is that correct?

25 A. Yes.

1557

1 Q. So if they were associated with Al Qaeda, it depended on

2 their individual friendship with Mr. Bin Laden and not a

3 pledge; is that right?

4 A. Well, these two people, they were our leaders. We

5 received orders from these two people.

6 Q. But if they were associated with Al Qaeda and had not

7 taken a bayat to Al Qaeda, then their association was based on

8 their friendship to Usama Bin Laden, and not on any religious

9 obligation; isn't that right?

10 MR. FITZGERALD: Objection to form.

11 THE COURT: No, I will allow it.

12 A. Well, in the military things, for example, Abu Hafs was

13 the head of military committee. Religiously, if he wants to

14 be that, he has to be like one of the emirs. It's not like

15 associate and we will receive orders from him. That's why he

16 has some special stature. That is why everyone in Al Qaeda

17 agrees that Abu Hafs is member of Al Qaeda, head of Al Qaeda.

18 Q. From Al Qaeda doesn't mean having given bayat, is that


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19 right?

20 A. I don't know if they gave bayat.

21 Q. You just testified on redirect examination for the first

22 time saying Wadih El Hage was of Al Qaeda. Do you remember

23 that?

24 MR. FITZGERALD: Objection to the form.

25 THE COURT: Strike for the first time, and you may

1558

1 answer the question.

2 Q. Did you testify on redirect examination that Wadih El Hage

3 was of Al Qaeda?

4 A. Yes.

5 Q. Is that the first time that you testified here that Wadih

6 El Hage was of Al Qaeda?

7 A. Yes.

8 Q. Back in 1998, as you testified on both direct examination

9 and cross-examination and redirect examination, you were

10 interviewed by a person while you were in jail in Kenya; is

11 that correct?

12 A. Yes.

13 Q. That was in August of 1998, is that right?

14 A. Yes.

15 Q. That was more than two and a half years ago, is that

16 right?

17 A. Yes.

18 Q. During your conversations with that person, you were asked

19 all about your affiliation with Al Qaeda and Al Qaeda members;


54/129

20 is that right?

21 A. Yes.

22 Q. Did you tell that individual that you did not know whether

23 Wadih El Hage was Al Qaeda?

24 A. I don't remember.

25 Q. I am going to ask you to take a look at what has been

1559

1 previously marked 3505-29, page 270, and read to yourself --

2 actually, starting at 269 where I made a blue line, and

3 reading to the next page where I made another blue line. Read

4 that to yourself, please.

5 A. Excuse me. From here?

6 Q. Yes, from here to here.

7 (Pause)

8 Q. Do you need it translated for you?

9 A. No.

10 (Pause)

11 A. Yes, sir.

12 Q. Having read that, does it refresh your recollection that

13 you told that individual back in August of 1998 that you did

14 not know if Wadih El Hage was Al Qaeda?

15 A. Yes, I told him that I didn't know exactly if he is from

16 Al Qaeda.

17 Q. But you knew that he was one of the first in Afghanistan

18 and was trusted because of that; isn't that correct?

19 A. Yes, he was trusted.


55/129

20 Q. You also said that you knew Wadih El Hage well.

21 A. Yes.

22 Q. That he was your friend.

23 A. Yes.

24 Q. That he was a nice person.

25 A. Yes.

1560

1 Q. And you simply did not know, based on all of what you knew

2 about Wadih El Hage, whether he was an Al Qaeda member or

3 someone who simply worked with people from Al Qaeda; isn't

4 that correct?

5 MR. FITZGERALD: Objection only to form.


7 MR. SCHMIDT: Would you repeat the question, please.

8 Can we have the court reporter repeat the question, please.

9 (Record read)

10 (Question interpreted)

11 A. (Through interpreter) this person, when he interrogated me

12 I was in jail. I did not tell him the entire truth. All my

13 aim was to have him get me out of my jail cell.

14 Q. Mr. Kherchtou.

15 A. Yes.

16 Q. Are you telling us now that in 1998, that you said to this

17 person that Wadih El Hage -- that you did not know Wadih El

18 Hage, whether -- withdrawn.

19 Are you saying to us that in 1998 when you said to

20 this person that you did not know if Wadih El Hage was Al


56/129

21 Qaeda, that you were lying to him? Is that your testimony

22 now?

23 A. (Through interpreter) Yes.

24 Q. Didn't you tell the FBI agents when you were interviewed

25 that you did not know whether Wadih El Hage was Al Qaeda?

1561

1 (Interpreted)

2 A. (Through interpreter) Probably.

3 Q. Are you telling us now that when you told the FBI agents

4 six months ago, five months ago, four months ago, whenever

5 that was, that you did not know that Wadih El Hage was Al

6 Qaeda, that you were lying to them? (Interpreted)

7 A. (Through interpreter) I told them that I am not aware

8 whether he is in the Al Qaeda or not.

9 Q. Was that the truth? (Interpreted)

10 A. (Through interpreter) Yes.

11 Q. Not only did you not know, all the Al Qaeda members that

12 you knew did not know if Wadih El Hage was a member of Al

13 Qaeda; isn't that correct? (Interpreted)

14 A. (Through interpreter) Not all the members of the Al Qaeda.

15 The majority of the members there.

16 Q. Did you explain to the FBI agents that none of the regular

17 Al Qaeda members know if Wadih El Hage is an Al Qaeda member

18 or not? (Interpreted)

19 A. (Through interpreter) Those who are like me do not know

20 the entire truth of what's going on.


57/129

21 Q. Would it be fair to say, right now as you sit here, you do

22 not know whether Wadih El Hage was ever a member of Al Qaeda?

23 (Interpreted)

24 A. (Through interpreter) That is true, but when I have

25 indicated or mentioned that he is a member of the Al Qaeda, it

1562

1 was in relation or in reference to the way that we were

2 relating to him, and it was open in how he handled matters.

3 MR. SCHMIDT: Your Honor, I would --

4 THE COURT: He is still answering the question.

5 THE INTERPRETER: Not yet.

6 MR. SCHMIDT: He answered the question with the first

7 word.

8 THE COURT: You may translate the rest of his answer.

9 THE INTERPRETER: He did not finish the sentence yet,

10 your Honor.

11 THE COURT: Finish.

12 A. (Through interpreter) Persons who are not members in the

13 Al Qaeda, we cannot talk to them openly as the way we address

14 members of the Al Qaeda and as the way we addressed him.

15 Q. Except for Mr. El Hage was considered an extraordinary

16 trustworthy person because he was one of the first in

17 Afghanistan; isn't that right? (Interpreted)

18 A. (Through interpreter) Correct.

19 Q. There have been people that you have told, both the United

20 States government last year and that man in Nairobi in 1998,

21 that you said were Al Qaeda, even though you never saw them or


58/129

22 heard them take bayat; isn't that right?

23 MR. FITZGERALD: Objection to form, your Honor.


25 THE INTERPRETER: Kindly repeat the question again.

1563

1 THE COURT: Restate your question.

2 Q. There are times in this courtroom, in answering my

3 question or answering the government's question, that was this

4 person Al Qaeda, you said yes. Do you remember doing that?

5 A. Yes.

6 Q. And these people that you said here in court were Al

7 Qaeda, you told the United States government back in August of

8 last year that they were Al Qaeda, right?

9 MR. FITZGERALD: Objection to form.

10 THE COURT: Yes. You threw in lots of things in your

11 restating the question. Restate your question, and try to not

12 put everything in a single question.

13 Q. You testified here of people that you knew were Al Qaeda,

14 is that correct?

15 A. Yes.

16 Q. People that you knew were Al Qaeda without hesitating, is

17 that correct?

18 A. Yes.

19 Q. You also told the government, the United States government

20 back in August of 2000, of people that you said were Al Qaeda.

21 A. Yes.


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22 Q. And you did that without hesitation, is that correct?

23 A. Yes.

24 Q. And then back in 1998 to this man in Nairobi, you told him

25 people that you said were Al Qaeda; is that right?

1564

1 A. Yes.

2 Q. And you didn't hesitate to say those particular people

3 were Al Qaeda; is that correct?

4 A. Yes.

5 Q. And for almost all of those people, you did not see or

6 hear them take bayat; is that correct?

7 A. Yes, some of them, yes.

8 Q. With Mr. El Hage back in 1998, you told that person that

9 you did not know that he was Al Qaeda; is that correct?

10 A. Yes.


12

13

14

15

16

17

18

19

20

21

22


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23

24

25

1565

1 Q. In August 2000 you told the United States Government that

2 not only did you not know whether Mr. El Hage was al Qaeda,

3 that none of the regular members of al Qaeda knew whether he

4 was al Qaeda; isn't that correct?

5 A. Yes.

6 Q. Now, you have testified on redirect examination about

7 members of al Jihad and the Islamic group being afraid of

8 being arrested in Egypt?

9 A. Yes.

10 Q. And you also testified on redirect examination that

11 Egyptian groups had carried out attacks against Egypt; is that

12 right?

13 A. Yes.

14 Q. Now, were you aware that the Egyptian government made it a

15 capital offense to have military training in Afghanistan?

16 A. I heard about that.

17 Q. So even non-Egyptian Jihad -- withdrawn. So all Egyptians

18 who trained in Afghanistan, be they Egyptian Jihad, Islamic

19 group, al Qaeda, member of no group, all feared going back to

20 Egypt, facing imprisonment or execution, isn't that right?


22 THE COURT: Establish the basis for his knowledge.


61/129

23 Lay a foundation for the question.

24 BY MR. SCHMIDT:

25 Q. You had conversations with members of Egyptian Jihad about

1566

1 their fear about going back to Egypt, right?

2 A. Yes.

3 Q. You had conversations with members of the Islamic group

4 about going back to Egypt; is that correct?

5 A. Yes.

6 Q. You had conversations with al Qaeda members who were

7 Egyptian and their fear about going back to Egypt; is that

8 right?

9 A. Yes.

10 Q. And you had conversations with unaffiliated Egyptians who

11 were in Afghanistan who were afraid to go back to Egypt; is

12 that right?

13 A. Yes.

14 Q. And they were all afraid that the Egyptian government

15 would at least put them in jail and very possibly torture and

16 execute them, isn't that right?

17 A. Yes.

18 Q. As you testified on redirect examination some of these

19 Egyptian groups did attack against Egypt and in Egypt; is that

20 right?

21 A. Yes.

22 Q. And the manner that was -- withdrawn. And the membership

23 of al Qaeda disagreed with the manner of some of these attacks


62/129

24 by these Egyptian Jihad groups, isn't that right?


1567

1 A. Can you repeat, please?

2 MR. SCHMIDT: Could you please read that question for

3 the interpreter?

4 (Record read)


6 A. (Through the interpreter) This was the public opinion of

7 the al Qaeda.

8 Q. That was also your opinion, isn't that right?


10 A. (Through the interpreter) My opinion is not that of the

11 members of the al Qaeda.

12 MR. SCHMIDT: Members of?

13 THE INTERPRETER: Of the al Qaeda.

14 Q. Now, you testified on redirect that you heard Abu Hajer or

15 Mr. Salim at least more than ten times speaking; is that

16 correct?

17 A. Yes.

18 Q. And you previously testified that you never heard Abu, I

19 think on cross-examination by one of the other attorneys, that

20 you never heard Abu Hajer talk about --

21 MR. FITZGERALD: Objection to scope, your Honor.

22 THE COURT: I can't tell until I hear the rest of the

23 question.


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24 Q. You testified on cross-examination by Mr. Ruhnke, the

25 other gray-haired gentleman over there, that you never heard

1568

1 Abu Hajer or Salim issue a statement about it being okay to

2 kill civilians because if they're good, they will go to

3 heaven, if they're bad, they will go to hell. Remember

4 testifying to that?

5 A. Yes.

6 MR. FITZGERALD: Objection to scope, Judge. Recross.


8 BY MR. SCHMIDT:

9 Q. In fact, not only did you never hear Abu Hajer say that,

10 you never heard any discussion with al Qaeda about something

11 like that; isn't that correct?

12 A. I don't remember.

13 Q. You don't remember ever having a discussion like that or

14 hearing a discussion; isn't that correct?

15 A. About what is going on in Egypt?

16 Q. No. Mr. Ruhnke asked you if you have heard Mr. Salim, Abu

17 Hajer, make a statement in effect that it's okay if civilians

18 get killed because if they're good, they go to heaven, if

19 they're bad, they go to hell; you remember that conversation?

20 A. Yes.

21 Q. And you remember you told him, you said, I never heard Abu

22 Hajer say anything like that; isn't that correct?

23 A. Yes.

24 Q. In fact, you never heard any member of al Qaeda having


64/129

25 discussion like that; isn't that correct?

1569

1 A. A discussion about killing innocent people?

2 Q. They will go to heaven and to hell, am I correct?

3 A. Yes.

4 Q. You also testified on cross-examination -- excuse me, on

5 redirect examination by the government that Mohamed el Masry

6 deftly went to Somalia to fight against the Americans; do you

7 remember saying that?

8 A. Yes.

9 Q. Now, what you heard was that the Somalis asked for help to

10 get the United Nations and the United States out of Somalia,

11 isn't that right?

12 A. I don't know if they asked for help and to who they asked

13 for help from who, but they were training there and they were

14 fighting United Nations.

15 Q. Are you aware of the date that the Americans left Somalia?

16 A. No.

17 Q. You were in Kenya already by the time that you heard this

18 information; is that correct?

19 A. Yes.

20 Q. And you had been in Kenya for many months when you heard

21 that information; isn't that correct?

22 A. Yes.

23 Q. And you also heard that the U.N. and the United Nations

24 and the United States killed many Somalis by the time that --


65/129

25 MR. FITZGERALD: Objection to scope, 401 and 403.

1570

1 Q. -- Mohamed el Masry --

2 THE COURT: Objection sustained.

3 MR. SCHMIDT: I have no further questions.

4 THE COURT: Anything further?

5 MR. WILFORD: No questions on behalf of Mr. Odeh,

6 your Honor.

7 MR. COHN: Mr. al-'Owhali has none.

8 MR. RUHNKE: No questions, your Honor.

9 THE COURT: Very well.

10 MR. FITZGERALD: None from the government.

11 THE COURT: Very well. Thank you. You may step

12 down.

13 (Witness excused)

14 THE COURT: And the government may proceed to the

15 next order of business.

16 MR. KARAS: Your Honor, at this time we would ask

17 that the stipulation marked as Government Exhibit 35 be read.


19 "It is hereby stipulated and agreed by and between

20 the United States of America and counsel for all the

21 defendants, and the defendants with the consent of their

22 counsel, as follows:

23 "1. Government Exhibit 93 is an authentic copy of an

24 article that appeared in a newspaper known as Al Quds

25 al-Arabi, which is published daily in London, England, on


66/129


67/129

1572

1 it doesn't have to be all at once, does it?

2 MR. KARAS: No, we can break it up.

3 THE COURT: Why don't you start and we'll break.

4 MR. KARAS: Your Honor, we have a stipulation that's

5 marked as Government Exhibit 34.


7 MR. KARAS: "It is hereby stipulated and agreed by

8 and between the United States of America and the defendants

9 with the consent of their attorneys as follows:

10 "1. Government Exhibit 81 is an authentic copy of a

11 videotape of an interview conducted by representatives from

12 ABC news with Usama Bin Laden in Afghanistan on May 28, 1998.

13 "Portions of the interview aired on ABC on June 10,

14 1998, and a transcript of the entire interview later appeared

15 on the ABC news website. Government Exhibit 81-T is a fair

16 and accurate translation of the interview that is depicted in

17 Government Exhibit 81."

18 Signed by counsel.

19 Your Honor, at this time we would offer Government

20 Exhibits 34, 81 and 81-T.

21 THE COURT: Received.

22 (Government Exhibits 34, 81 and 81-T received in

23 evidence)

24 MR. KARAS: And we would propose to hand out 81-T

25 while we play the videotape.


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1573

1 THE COURT: Yes, you may.

2 (Government Exhibit 81 played)

3 THE COURT: Perhaps this is a good place to break and

4 we'll pick that up after lunch, and we're adjourned until

5 2:00.

6 (Luncheon recess)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


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1574

1 AFTERNOON SESSION

2 2:10 p.m.

3 (Jury not present)

4 MR. SCHMIDT: Your Honor, we have some issues with

5 the redactions that the government has made to the statement

6 of Mr. Odeh. My understanding today is that they plan to

7 offer the statement this afternoon, and we received a copy

8 during lunch of the redacted statement.

9 THE COURT: We will take it up. We have about what,

10 another half hour of this video?

11 MR. KARAS: About 20 minutes of the video.

12 THE COURT: And then there are some other matters?

13 MR. FITZGERALD: Yes. If the stipulation is signed

14 by all counsel on the wiretap, we will have a chunk of

15 transcripts to read and a brief witness before we get to Agent

16 Anticev.

17 THE COURT: We will take it up then before that.

18 (Jury present)

19 THE COURT: I believe we were on page 6, is that

20 correct?

21 MR. KARAS: Yes, Judge.

22 (Videotape resumed)

23 THE COURT: Mr. Fitzgerald.

24 MR. FITZGERALD: Yes, your Honor. At this time I

25 would offer in a stipulation previously marked as Government's

1575


70/129

1 Exhibit 36 for identification.

2 THE COURT: Yes.

3 MR. FITZGERALD: I would ask the court to read the

4 first three paragraphs, and -- or if you prefer I could read

5 it -- to omit dates and times specified, to save time.

6 THE COURT: Go ahead.

7 MR. FITZGERALD: It is hereby stipulated and agreed

8 by and between the United States of America and the defendants

9 by and with the consent of their undersigned attorneys as

10 follows:

11 1. That for the time period including on or about

12 July 1996 through September 1997, the Kenyan telephone number

13 254820067 was assigned to a telephone which was located at

14 1523 Fedha Estates, a building in Nairobi, Kenya, which was

15 used as a residence by Wadih El Hage and his family. During

16 that time period the telephone was wiretapped. Calls to and

17 from the telephone number were being recorded on a tape

18 recording machine in a secure location in the Nairobi, Kenya,

19 area. The parties agree that the tapes generated by the

20 wiretap are fair and accurate recordings of the conversations

21 taking place over those telephone lines. Tapes generated by

22 the wiretap included the following government's exhibits,

23 which were recorded on or about the date and time indicated

24 and outgoing telephone calls were placed to the telephone

25 number indicated.

1576


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1 It then recites approximately 25 different exhibits

2 with times and dates, which I will not read into the record at

3 this time.


5 MR. FITZGERALD: Paragraph 2 states that for the time

6 period including in or about July 1996 through September of

7 1997, the Kenyan telephone number 25471202219 was assigned to

8 a telephone in Nairobi which was subscribed to by Ahmed Sheik

9 Aden. During that time period, the telephone was wiretapped.

10 Calls to and from the telephone number were being recorded on

11 a tape recording machine in a secure location in the Nairobi

12 area. The tapes generated by the wiretap included the

13 following government's exhibits, which were record on or about

14 the dates indicated and outgoing calls placed to the telephone

15 number indicated. I omit reading now the exhibit dates and

16 times.


18 MR. FITZGERALD: Paragraph 3 states that for the time

19 period including in or about July 1996 through September 1997,

20 Kenyan telephone number 254820067 was assigned to a telephone

21 in Nairobi which was subscribed to by Wadih El Hage. During

22 part of that time period, the telephone was wiretapped to

23 intercept facsimile transmissions to and from the telephone

24 number, which were recorded on a machine in a secure location

25 in the Nairobi area. The fax transmissions recorded include

1577


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1 the following government's exhibits, which were received on or

2 about the date and time indicated and outgoing faxes were sent

3 to the

United States v. Bin Laden - Day 11 Transcript

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