6596 4A4MSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 October 4, 2004 8 9:15 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6597 4A4MSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 MR. TIGAR: Good morning, your Honor. 4 THE COURT: Good morning. 5 MR. TIGAR: The government had filed a letter 6 concerning the cross-examination of Ms. Soliman and we would 7 like to address that. 8 Second, your Honor, we have received your Honor's 9 opinion of last evening and would like to make a response to 10 that for our own planning purposes for our case. 11 Third, we had received Mr. Morvillo's letter about Mr. 12 Fitzgerald and have, since my very brief and quick response, 13 found some case authority to present to your Honor. And I 14 would like to do that now, if that meets with the Court's 15 approval. 16 THE COURT: Sure. 17 MR. TIGAR: Does your Honor have a preference about 18 the order? 19 THE COURT: Actually, that order is fine. I was going 20 to begin with the issue with respect to Ms. Soliman in any 21 event because I wanted to deal with any issues that were 22 related to the imminent presentation of evidence this morning. 23 MR. TIGAR: May I use the lecturn and the Elmo, your 24 Honor, to show some exhibits? 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6598 4A4MSAT1 1 MR. TIGAR: The Court will recall that Ms. Soliman was 2 called as a witness and she is going to talk about translating 3 the exhibits that are on 1320L and this is the document on 4 1320. This is the document 1320L that reflects what's on 5 there. The controversy appears to arise with respect to a 6 column called last modified. And that's on 1320L. 7 Now, the government has produced to us and I have 8 marked as LS53 -- I'd like to show it to the Court. This is 9 the document that was attached to the government's letter and, 10 as the Court can see, there is some handwriting here that 11 apparently is Ms. Soliman's. And according to the government 12 she was furnished this document or it was prepared by Ms. Baker 13 as a form on which she could make her notes. 14 Her notes of the work that she did, in our view, are 15 clearly admissible. She is an expert. This represents an 16 initial draft towards a conclusion about which she was 17 testifying. And also these things that are written on here are 18 indeed material to the issues that are being presented, which 19 is, what's on these calls, is anything missing, how are they 20 broken up, what can you hear when you listen to them? After 21 all, the calls as to much of the material are in Arabic and one 22 would need a translator in order to understand that. 23 Now, the government says that Ms. Baker typed this. I 24 have no reason to doubt that. Last modified. The question 25 then would be, where did she get it? Well, it is clear to us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6599 4A4MSAT1 1 that she got it, as the government says, from the material 2 produced to the defense in discovery or from something 3 substantially identical to that material. And here is what I 4 have marked as LS51. I am going to ask to be made a court's 5 exhibit. This is a screen shot, your Honor, of a file called 6 .VOC dump 3_1067448488_2 that I have marked as LS51, which has 7 a court's exhibit. This is a screen shot of the directory of 8 what was furnished to us in discovery. 9 THE COURT: Why do I need to mark it as a court 10 exhibit? You have identified it as LLS51 for identification 11 and the parties should retain their exhibits. 12 MR. TIGAR: I'm sorry. That was a solipsism on my 13 part, your Honor. What I meant, your Honor, I want to offer it 14 in evidence, but not for the jury. I want it to be part of the 15 record, your Honor, but not for the jury. And I've given it an 16 LS exhibit number. 17 On this page of the document that I have identified 18 here -- it is hard to see on the Elmo, but we have highlighted 19 the five file names that are involved on the Soliman exhibit 20 that I had marked as LS53 that we had intended to use to 21 cross-examine. And the Court can see the date modified on 22 these. I can zoom in a little bit. And that's 10/28 at 2003. 23 The reason it is helpful is that this screen shot 24 shows that the copying process was going on over a period of 25 time and it does appear indeed that Ms. Soliman had, going back SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6600 4A4MSAT1 1 to LS53, the same five files, these top five here as are on 2 that .VOC dump that was provided to us. So it is true that 3 what she was working with was a copy, an exact copy using the 4 same last modified date as to what was furnished to us in 5 discovery. 6 In other words, whoever did that had the capacity to 7 make copies of files and have the last modified date and time 8 be exactly the same. That is, Ms. Soliman could not have used 9 the same CD we were using. She had to be using a different one 10 because she was never in our office. 11 The question becomes -- she probably can't answer 12 this, but it becomes something that is relevant just to ask 13 her. Is this the sheet that you were given as a basis on which 14 you were to do your translation? That's the only question I 15 want to ask. Is this the sheet that you were given by the 16 government as a basis for doing your translations, or on which 17 to make notes? Did you make some notes? What do the notes 18 say? What do they mean? And I think I know what some of them 19 are because we have listened to the recordings, this 20 unidentified male, what do you mean dialing number and so on. 21 It is going to be helpful to the jury to get some explanation 22 of this. 23 That's all this is. This is a document furnished to 24 her by the government. They are exactly right that that's what 25 it was. And I am not sure what adverse inference they are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6601 4A4MSAT1 1 trying to head off here or what problem there would be about 2 cross-examining the witness about that and then putting in 3 evidence LS53. That's the whole cross-examination, your Honor. 4 If the government objects to my doing that cross-examination in 5 that form, then -- and says there is some harm that might come 6 from my doing it, then I will be happy to rebut that. That's 7 all that I want to do. 8 THE COURT: Mr. Barkow. 9 MR. BARKOW: Your Honor, my letter made clear what our 10 objection is and that is to Mr. Tigar displaying or stating to 11 the jury the typewritten material without an adequate 12 foundation that it is in fact something that Ms. Soliman knows 13 about, wrote or has any knowledge, personal knowledge 14 whatsoever about what that information is. Otherwise, if she 15 does not, all that's happening is that a document is being 16 placed before the jury and leaving open all sorts of possible 17 inferences. 18 And the one that we are obviously concerned about is 19 that a discovery diskette -- information from a discovery 20 diskette will be put before the jury and create sow confusion 21 because Mr. Tigar has, as part of the defense, tried to create 22 an issue about last modified dates. That's the reason why we 23 don't want this document displayed to the jury until and unless 24 adequate foundation is laid, which we submit can never happen 25 because Ms. Soliman didn't generate it. And all that happened SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6602 4A4MSAT1 1 was, she was asked to listen to these calls and to basically 2 tell us what was on them. 3 Secondly, Ms. Soliman testified in court after having 4 had a recording played for her in court. She didn't harken 5 back to what she did before. So the only 3500 material or the 6 only thing that would be relevant to her testimony, perhaps, is 7 whether she listened to them before; and, if so, whether she 8 drew conclusions about them. That's the handwritten portion, 9 not the typewritten portion, which was simply something 10 generated by Ms. Baker off of the discovery disk. And 11 Ms. Baker is actually going to rise, if that's okay with the 12 Court, to explain the source of that information because she is 13 the one that generated it. 14 I think the government's concern is clear here; that 15 is, that the jury can be confused by putting something before 16 it -- that is, the typewritten portion -- that is wholly 17 irrelevant to the case because it relates to discovery, wholly 18 irrelevant to assist Soliman's testimony because she doesn't 19 know about it, we proffer to the Court, and she only testified 20 to two of the files on the DVD. That's the basis of our 21 application. If it turns out that we submit it did not happen, 22 she generated this document. If Mr. Tigar can -- perhaps the 23 equation will change. Until and unless an adequate foundation 24 is laid, this document, which is totally irrelevant to the 25 case, and her testimony, the typewritten portion, that is, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6603 4A4MSAT1 1 be shown or referred to to the jury. 2 If Ms. Baker can explain the source of the typewritten 3 portion. 4 MS. BAKER: As I understood Mr. Tigar's argument and 5 the relevance claim that he was trying to make, which the 6 government submits fails anyway, he was assuming that the piece 7 of paper on which Ms. Soliman wrote her notes was a listing of 8 the entire contents of a disk that was somehow created by 9 someone from the discovery disk without the last modified dates 10 of the files changing, and that is not correct. That document, 11 the printed or typewritten portion of it was created by me from 12 the discovery disk directly. 13 And when I say discovery disk, what I mean is, a DVD 14 with a very large number of .VOC files that was given to 15 Ms. Stewart's lawyers as part of the pretrial discovery and the 16 disk had that name that was at the top of that screen shot that 17 Mr. Tigar had on the screen a few minutes ago. And the disk, 18 the DVD has on it hundreds of .VOC files, some very large 19 number. 20 The reason why only the five of them appear on that 21 piece of paper is because those five were the only ones that 22 were relevant for what the government was doing at the moment. 23 And the government's original thinking, had Agent Kerns not 24 been able to quickly burn a new DVD with just the relevant 25 files on it, the government actually considered offering the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6604 4A4MSAT1 1 discovery DVD into evidence, but not the entire contents of the 2 DVD; just the relevant files on the DVD, which is why I created 3 that document listing just the relevant files. 4 Just for the Court's information, the way it was 5 created, I had the discovery DVD in the DVD drive of my 6 computer, and I opened WordPerfect and there is a function in 7 WordPerfect, print file list. And it then gives you choices on 8 whether you want to print to paper or print to a related 9 software application called Word Pad. And I chose word pad. 10 And from the discovery DVD into Word Pad the entire list of all 11 of the hundreds of .VOC files on that DVD was copied. And it 12 was a list that looked very similar to the document that 13 Mr. Tigar put on the Elmo a few minutes ago. 14 From that list of the hundreds of .VOC files I then 15 copied into a separate WordPerfect document just the relevant 16 files. There isn't any other DVD. It is the discovery DVD 17 itself which Mr. Tigar has had for however many months or a 18 year and a fraction. And so his premise about the creation of 19 the document is wrong. 20 Moreover, Ms. Soliman's testimony isn't ultimately 21 based on the discovery DVD. It is based on 1320, which is the 22 newly created DVD which was played for her in the courtroom and 23 that is what she testified about. The government respectfully 24 submits that there is no relevance to the information on that 25 document and that it can serve no purpose but to create SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6605 4A4MSAT1 1 confusion. 2 MR. TIGAR: Your Honor, with respect the government's 3 answer, creates more difficulty or confusion I think than it 4 solves, at some point in time, which I will establish with this 5 witness if permitted, she was given this piece of paper that we 6 have marked as a Stewart exhibit. And it is LS53. That's this 7 one that Ms. Baker just described created. She was also given 8 some files to listen to. 9 Now, apparently, either -- the files she was given are 10 what is now 1320. She took what is now 1320 and listened to it 11 and just used this to make notes. Or she was given some other 12 thing in which to make the translation. I don't know. I will 13 ask her. But the fact is that she was given this piece of 14 paper on which she was told to make notes or she was given the 15 opportunity to make notes. Again, I don't know because I have 16 not talked to her. This is rather similar to a form that is, 17 if you have an employee who does a regular job, you give them a 18 form on which they can make their notes or findings or whatever 19 so that when the reviewing person -- in this case, the lawyers, 20 does it, they will know what everybody is talking about. 21 This is an expert witness, your Honor. And I 22 analogize this to bench notes made by a forensic chemist, for 23 example, in a process because you're supposed to keep track as 24 an expert of what you do at each step. And that's all I want 25 to do here with the cross-examination of this witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6606 4A4MSAT1 1 What the government is really worried about is that 2 there is a file last modified date and it is not the last 3 modified date that appears on Government Exhibit 1320L. And as 4 Agent Kerns said when he testified, I have repeatedly told you 5 that the modified date changes when I copy the files across 6 from a UNIX platform to a windows platform. Well, I don't have 7 to believe that. The jury doesn't have to believe that. 8 Mr. Grasso has in his tool kit a device that would make sure as 9 to whether something happened in that process or not. And if 10 at the end of the day the jury looks at this document and draws 11 that inference, there are plenty of documents in this record 12 that show that the modified date on these files is well after 13 the date on which the conversations were said to have been 14 recorded. 15 And I respectfully submit that's a permissible 16 inference if the jurors choose to draw it because the 17 government has done nothing; I repeat, nothing; I repeat, 18 nothing in this case to establish the internal integrity of the 19 FBI system to ensure that modification dates are not changed, 20 which they are not in the ordinary course of simple file 21 copying as files are moved across different platforms. That, 22 as I say, is not something I intend to ask Ms. Soliman about 23 because she doesn't know. I want to find out, Ms. Soliman, 24 what disk did you listen to when you were attempting to do 25 these translations? Were you given this form as a basis for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6607 4A4MSAT1 1 it? And leave it at that. 2 MR. BARKOW: Your Honor, I would only briefly say that 3 this issue arose before in the context, I believe, of our 4 motion to preclude inquiry into the pretrial discovery process. 5 And all this is is an effort to bring before the jury 6 information relating to the pretrial discovery process because 7 that's what this printout shows. And if Ms. Soliman had 8 written on a document, written on the newspaper or something 9 like that, then the preprinted information on the newspaper 10 still wouldn't have been relevant to the case. Perhaps, what 11 she wrote would have been and what we are targeting here is the 12 typewritten material which is information produced, as 13 Ms. Baker said, to put on this document, but information 14 derived from the discovery process. 15 THE COURT: The document can be marked. It shouldn't 16 be shown to the jury unless the witness testifies that she 17 created or has personal knowledge of what the last modified 18 column means on the particular document, personal knowledge. 19 You can make another copy of the document, redacting the last 20 modified column, leaving all of her handwritten notes. And 21 with that copy of the document, you certainly can cross-examine 22 her about any comments that she previously made with respect to 23 what it was that she listened to and how that may affect her 24 testimony. But if the document were admitted and there was no 25 basis in her testimony for the last modified column, then it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6608 4A4MSAT1 1 will be redacted. Because the relevance of that column is 2 outweighed by the dangers and unfair confusion. 3 MR. TIGAR: Your Honor, I will give a copy of this 4 document to a member of our team and take a couple of minutes 5 to get a copy made with a redaction. 6 Thank you. The second issue is with respect to your 7 Honor's opinion which we received. Your Honor, we would like 8 to call Mr. Elliot as the first witness in our case and examine 9 him as an adverse witness. And in that connection we will 10 produce to the Court and the government tomorrow a book of 11 every exhibit that we would intend to use in that process. And 12 in that way we can have a meaningful discussion with the 13 government about which of those exhibits it would consent to 14 the admission of and the use and which would require some 15 action by the Court. 16 I would also like, because the Court had told the 17 government that Mr. Elliot might be called in some form in 18 somebody's case, I'd like them to consider whether or not I 19 could meet with him next Monday afternoon to prepare him to 20 testify. 21 And I note in reading the Court's opinion that there 22 is one issue that I did not see the Court resolve and that may 23 have been because we didn't say it right. Because I know the 24 Court and the parties worked very hard over these materials. 25 But we received as a part of the production a CD containing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6609 4A4MSAT1 1 so-called DDR files out of the Lockheed Martin system. That 2 was represented to be a diskette of files taken directly from 3 the electromagnetic tapes without conversion into .VOC. 4 Now, your Honor will recall that there has been this 5 dispute added to as a result of Friday about how things were 6 received at Lockheed Martin, what happened to the files when 7 they were put on the electromagnetic tapes, and then how they 8 were decompressed. And the government said they can't find the 9 compression algorithm and then made a representation. We 10 sought the decompression algorithm. We had noted to the Court 11 that it would take 410 person hours to attempt to recreate a 12 decompression algorithm based on the lines of code that the 13 government had given us. Therefore, we had asked that the 14 algorithm be produced. The Court said anything that is not 15 given to us in the motion is denied. So I can take it that 16 that is denied. And if that's the ruling, that's the ruling. 17 We don't get it. 18 An alternative relief we proposed is we have a CIPA 19 procedure, Classified Information Procedures Act procedure, 20 because the algorithm is supposed to be classified. We had 21 suggested -- I thought we did -- if we didn't, then I'm 22 sorry -- that a member of our team with a clearance could go in 23 there and watch this work or look at the program as it is 24 running to try to do that Daubert thing of repeatability and 25 see what kind of data loss we can infer had occurred. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6610 4A4MSAT1 1 If none of those options, a CIPA hearing, putting a 2 cleared person, getting an algorithm, if the Court denies all 3 of that and that's on the record, then, of course, our next 4 step will be to seek the authorization, which we know how to 5 do, to have somebody spend 10 weeks recreating the algorithm. 6 That, of course would be for the Court to decide that. That 7 would be another motion that we would make. I didn't see that 8 expressly addressed in the Court's opinion. And it is of 9 sufficient importance to us in terms of our contentions, I 10 didn't want to let it go by. 11 THE COURT: Ms. Baker. 12 MS. BAKER: Your Honor, I don't really know how to 13 respond because we have essentially a factual dispute. The 14 government has produced on paper what the FBI says is the 15 decompression algorithm. It hasn't been produced as part of 16 the larger electronic package in which it resides because, 17 first of all, to produce it in electronic form raises 18 classification issues whereas printing it out on paper and 19 producing it the way we did, it could be unclassified. So that 20 would solve that issue. 21 Second, as we previously advised, in the larger 22 program in which it resides, it is designed to convert an 23 entire Lockheed Martin system tape at a time from the original 24 Lockheed Martin format to the .VOC file format. And, 25 therefore, even if it were possible to disclose that entire SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6611 4A4MSAT1 1 program to the defense, even if we could get it declassified -- 2 and I don't know whether or not that's possible -- but even if 3 it were, the defense won't be able to just put it on a computer 4 and run it because they cannot be given any entire original 5 Lockheed Martin tape because every tape contains recordings 6 from surveillances other than the surveillances involved in 7 this case. 8 So it seems to me that the FBI has provided the only 9 thing that it can reasonably provide under the circumstances, 10 and I understand that Mr. Tigar disputes that that's what it 11 is. But, as we have previously represented more than once, 12 that code printed on those pieces of paper that we produced is 13 the code that the FBI's engineers used to write the larger 14 conversion program. And so I don't believe that there is any 15 reason for a CIPA hearing or any of the other relief that 16 Mr. Tigar seeks. 17 Moreover, just to go back to the larger context here, 18 there still has been no issue raised by the defense as to why 19 this is really relevant as it actually relates to the 20 recordings that are in evidence. Again, I understand that 21 theoretically the defense is raising an issue with the fact 22 that the Lockheed Martin files were compressed. But that has 23 never been linked to the accuracy of any of the recordings that 24 are actually in evidence here. There has never been a claim 25 that there is anything missing from any recording by virtue of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6612 4A4MSAT1 1 the fact that when it was recorded on the Lockheed Martin 2 system it was compressed. 3 MR. TIGAR: May I respond, your Honor? 4 THE COURT: Sure. 5 MR. TIGAR: First, the FBI did not say this is the 6 decompression algorithm. They said, these are lines of code. 7 As I think counsel did acknowledge, you probably won't be able 8 to do anything with these lines of code, or we won't guarantee 9 that you will because the Lockheed Martin system did not 10 separate calls into files. It was a continuous system. I 11 understand that response better now that I have reviewed the 12 additional material the government has created. The Lockheed 13 Martin platform simply strung everything together and then they 14 had to go back in and find it. 15 But the point, the allegation that we have never 16 identified anything specific, we have said the following 17 specific things: First, based on the code that has been 18 provided to us, it appears that the Lockheed Martin system 19 achieved compression by deleting data. That is a statement 20 that I made to the Court, I represent to the Court. That's 21 what our technical expert said. It deleted data. What kind of 22 data did it delete? It deleted data where the system wasn't 23 hearing something that was loud enough to keep going or that 24 the system regarded as unexpected in some way. 25 Ms. Shellow-Lavine filed with the Court a letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6613 4A4MSAT1 1 showing that fully a third of the telephone calls in evidence 2 are broken up where more than one call was broken into multiple 3 pieces. The very evidence about which Ms. Soliman is 4 testifying, we submit at the end of the day, will show a 5 51-second gap and indeed there is a 51-second gap. The 6 question will be whether there were any words that were lost as 7 a result of that series of calls. You can take it from looking 8 at -- the SRIs would bear this out, that the breaking up of 9 calls into parts which could be a result of this on-hook or 10 off-hook situation, or it could be a result of silences that 11 caused the thing to shut down and make another file -- and I'll 12 get to that in a minute -- is a function of this decompression 13 program. That is, so far the only thing we know for sure -- 14 and I think the technology that we have seen shows it is -- 15 that the Lockheed Martin system doesn't know how to handle 16 clicking the telephone hook for call waiting or three-way. 17 But another way the Lockheed Martin system could break 18 calls into multiple files is by a decompression algorithm that 19 simply eliminates, creates a disconnect. And the way that 20 would work is this, your Honor. The Lockheed Martin system, as 21 counsel has explained, takes 14 gigabytes of information having 22 been compressed from something four times that much and strings 23 it all together. It is all one big file on that 14-4, as I 24 understand it. That's why when the government produced the 25 thing we asked for, here is some Lockheed Martin files, they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6614 4A4MSAT1 1 were very careful to say, you won't be able to do anything with 2 these because they are not strung together so it is worthless. 3 What is all strung together is then pulled back apart in some 4 kind of decompression system that we don't yet fully 5 understand. And that's what's necessary to explore. 6 Why the gaps, your Honor? Why the gaps? So that's 7 our materiality argument. And if the government says, we can't 8 answer that question unless we let you inside our secret room, 9 then, gee, if we have established materiality, that is a CIPA 10 question. If the Court is not prepared to rule on that now, of 11 course, we have an expert witness who is coming in our case and 12 I can ask him about it. 13 THE COURT: I really did consider each of the requests 14 for documents and measured them against standards of 15 materiality and the right to production and the standards for 16 the admissibility and reliability of the recordings and the 17 state of all of the evidence in the case. And I considered 18 this request and determined that it was not warranted because 19 the material that was being sought compared to what was given 20 was not material, and so I denied it. 21 I did not say that you cannot, if you wish, pursue 22 your own expert. I have authorized substantial assistance and, 23 you're right. You know how to ask for it and the procedures 24 with respect to checking with the other people that have 25 knowledge about computer assistance. On the record that's been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6615 4A4MSAT1 1 produced for me in the course of the trial, the briefing, which 2 has gone on for a long period of time, ultimately culminating 3 in the motion on Friday. 4 I was unpersuaded that this request was for documents 5 that were material, and I set out the standards in the opinion. 6 I considered every request. I did not obviously go over the 7 detail of each request, so the parties have briefed the details 8 of each request at length. And I've also indicated you're 9 welcome to continue to pursue any of this, whether by 10 compulsory process or requests for additional funds. It does 11 appear to me -- and I was not as blunt in the opinion as to the 12 strained, in my view, nature of some of the requests. But I 13 have reviewed them individually and reached the conclusions 14 that I reached in the opinion. 15 MR. TIGAR: I appreciate the clarification, your 16 Honor. And it lets us know what we have to do. As I've said, 17 we will be tendering those exhibits to the government. 18 We also received Mr. Morvillo's letter of October 1 -- 19 THE COURT: By the way, one thing in the argument, 20 there was a representation that in response to one request for 21 a summary that the summary, to the extent that there was a 22 summary, was work product prepared by the trial team. And no 23 one asked me to do anything else with that or to get it or seal 24 it. 25 MR. TIGAR: The notebook we are doing, your Honor, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6616 4A4MSAT1 1 would give to the government and the Court. So that will 2 preserve any -- you're talking about the government's trial 3 team? 4 THE COURT: No. Ms. Banout's summary which Ms. Baker 5 said was work product prepared for the trial team. And I 6 accepted that representation. 7 MR. TIGAR: Your Honor, as I understand the law -- and 8 I either do or don't -- if it is work product but otherwise 9 producible under Jencks, then you need a Goldberg analysis to 10 see if it comes out the other end and we get it. I think that 11 issue is mooted, as I understand it, by the Court's opinion 12 with respect to these issues. 13 THE COURT: If the parties wanted me to review that 14 summary and preserve it for purposes of review, that was my -- 15 MR. TIGAR: I'm sorry, your Honor. I'm a step behind. 16 Yes, your Honor, if -- I'm afraid I overlooked that issue. We 17 do not concede that work product is a valid objection to a 18 Jencks request. 19 THE COURT: Ms. Baker. 20 MR. TIGAR: I think that's the Goldberg case. 21 MS. BAKER: Your Honor, I would have to look at the 22 Goldberg case to be sure. If it is the one that I'm recalling, 23 there is a line of cases -- I assume that Goldberg is part of 24 it -- that say where a government lawyer is interviewing a 25 witness and taking notes of what the witness is saying that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6617 4A4MSAT1 1 work product doesn't protect the government lawyer's notes of 2 what the witness is saying. If that's this case, that's not 3 apposite here. 4 The issue here is Ms. Banout was asked by the 5 government trial team as part of the government trial team's 6 preparations for trial to prepare summaries of certain calls so 7 that the government trial team could decide whether or not it 8 wished to use those calls as evidence in its case. There is 9 nothing on the face of those summaries that's going to indicate 10 that. The summary identifies a call by its date and time and 11 then describes its contents. If the Court wishes to look at 12 those summaries we will provide them. But the factual 13 predicate for the claim of work product is not on the face of 14 the document. It is the facts that I have just proffered to 15 the Court. 16 MR. TIGAR: We have been given similar summaries 17 throughout the case, your Honor, in the form of tech cuts. I 18 don't know what's different about these. 19 MS. BAKER: Your Honor, there is a difference. The 20 tech cuts were given before the -- predated the commencement of 21 the prosecution. These summaries are different. They are not 22 tech cuts. They were prepared specifically during the 23 government trial team's preparation for the trial and that is 24 the very essence of work product. 25 MR. TIGAR: Surveillance began in 1995. Ever since it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6618 4A4MSAT1 1 began, litigation has been in place between one or more of the 2 coconspirators, the defendants in this case, and the United 3 States of America. In any rate, that's our position. 4 With respect to Mr. Morvillo's letter -- 5 THE COURT: Could you give me a letter, Ms. Baker, 6 and, if necessary, the summary that was referred to in the 7 motion? 8 MS. BAKER: Yes, your Honor. When you say you want a 9 letter, do you want me to proffer again the facts that I have 10 just stated? 11 THE COURT: No. If there is anything else to be said. 12 Look at the request and I'll take the proffer as to the way in 13 which the summary was prepared, unless anyone wants to me to do 14 anything further on that. 15 MS. BAKER: We will do that. The only other thing is, 16 if Mr. Tigar wants to move on to discussing the Pat Fitzgerald 17 issue, that's fine, but I do need to respond to Mr. Tigar's 18 request about calling Mr. Elliot. There is a scheduling issue. 19 MR. TIGAR: I would like to know the scheduling issue. 20 THE COURT: All right. 21 MR. TIGAR: We may not call any witnesses other than 22 Mr. Elliot. 23 MS. BAKER: The scheduling issue is that Mr. Elliot 24 has a long-standing commitment to be out of the country on 25 other official business of the FBI from this Thursday, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6619 4A4MSAT1 1 October 7, through October 16. So he would not be available 2 again to testify after this Wednesday until October 18, which 3 is the Monday after his return. 4 MR. TIGAR: I had thought, your Honor, based on what 5 the Court said to the government, that Mr. Elliot would be 6 warned that he might be called. And I relied on that and did 7 not issue a protective subpoena for him which would have said, 8 I think, and laying aside all other business, get to the court. 9 The defense has for months agreed as to the order in 10 which it would go. And the Court's opinion I reviewed 11 carefully and it is our respectful request that the Court tell 12 the government to have Mr. Elliot here next Tuesday so that we 13 can begin our case with him. 14 THE COURT: Ms. Baker, I am very, very attentive to 15 the needs of all of the parties and the witnesses, but this 16 request has been out there for a while. And the government 17 resisted calling Mr. Elliot in its own case. I left that open 18 as a possibility. The defendant said no. We will call 19 Mr. Elliot as part of our case. So be it. 20 We said that the defense case would begin with 21 Ms. Stewart, that it would begin on Tuesday. And it is 22 difficult to believe that there is any business so important 23 that a potential witness could not be subpoenaed to appear in 24 the court based upon a long-standing commitment. I ask jurors, 25 what happens if you took ill? What happens if for some reason SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6620 4A4MSAT1 1 you couldn't be there? Is there nothing else? I fully 2 appreciate other commitments of witnesses. But I'm confident 3 that other arrangements can be made so that for the few days 4 that it would be necessary to interrupt this trip, other 5 arrangements can be made. 6 MS. BAKER: Your Honor, as soon as we have a break I 7 will reach out to Mr. Elliot and try to get more information. 8 THE COURT: You know, I have accommodated in terms of 9 the evidence a honeymoon. People have been called away for 10 other meetings. But an assertion that he has other FBI -- 11 long-standing FBI business brought to my attention for the 12 first time today when it was plain that as of last week or 13 perhaps the week before that one of the real possibilities -- 14 in fact, one that the government was asking for was that 15 Mr. Elliot be called as part of defendant's case, not as part 16 of the government's case. And the defendant's case was going 17 to begin on Tuesday. And having said that, it is not clear to 18 me that you, rather than Mr. Elliot, keeps Mr. Elliot's 19 calendar or adjusts his schedule of priorities. 20 MS. BAKER: I am certainly not quarreling with the 21 Court's direction. I wanted simply to advise the Court that as 22 soon as we have a break, I will speak with Mr. Elliot. And if 23 his schedule absolutely positively cannot be changed -- all I 24 know is that it is an important matter that involves a specific 25 number of other people. If it absolutely positively cannot be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6621 4A4MSAT1 1 changed, the government will have to bring him here before he 2 leaves. But I want the Court to know of the issue and to know 3 that I will address it as soon as we have an opportunity to do 4 so at the next break. 5 THE COURT: There are planes. People come, they go. 6 MS. BAKER: I do understand that, your Honor. One way 7 or the other, we will get this issue resolved. But I want the 8 Court and defense counsel to know that I will provide 9 additional information as soon as we have a break. 10 THE COURT: Should we deal with the -- 11 MR. TIGAR: Your Honor, I can understand we want to 12 bring in the jury. May I give the Court the citation of two 13 cases about the matter, about the Fitzgerald issue? 14 THE COURT: Hold on a moment. 15 Mr. Fletcher advises me that one juror's aunt passed 16 away and the wake is tomorrow evening and therefore the juror 17 requests that we break at 4:00 tomorrow. We can certainly 18 break at least by 4:00 tomorrow. So I will just tell the 19 jurors at an appropriate time today that we will be breaking at 20 4:00 tomorrow. 21 MR. TIGAR: With respect to the Fitzgerald matter, 22 your Honor, United States v. Aaron, 457 F.2d 865, and that is 23 discussed, although the defendant did not prevail, in the case 24 in United States v. Ortega. All we have is a Lexis cite 2002 25 U.S. Dist. Lexis 22183. It is Judge Cote's opinion, July 17, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6622 4A4MSAT1 1 2002, 00 Cr. 432. And we would like to make some observations 2 about it, your Honor, but, obviously, it is not an urgent 3 matter and we would await the Court's and the trial schedule's 4 right time for that. Whenever the Court wanted. 5 THE COURT: When do the parties want to discuss the 6 issue of additional 3500 material? 7 MR. TIGAR: We are ready right now, your Honor. 8 THE COURT: It is a quarter after 10. I would prefer 9 to move with the jury and take this up at lunch or a break. 10 MR. MORVILLO: Your Honor, the government is prepared 11 to deal with it whenever the Court wants to deal with it, after 12 court today, at the lunch break, at the morning break. 13 THE COURT: Maybe we should do it at the lunch break. 14 Tell me what the schedule -- 15 MR. MORVILLO: Of witnesses today, your Honor? 16 THE COURT: Yes. And if we are going to be dealing 17 with any documents as to which I've ruled as to limiting 18 instructions, I want to have the limiting instructions 19 available to me. So what's -- 20 MR. MORVILLO: The first witness, your Honor, as the 21 Court is aware, will be the conclusion of the testimony of 22 Ms. Soliman. I believe following that, Mr. Dember is going to 23 be presenting some of the materials in Ms. Stewart's search, 24 and I'll let him address limiting instructions. 25 MR. DEMBER: Your Honor, with respect to those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6623 4A4MSAT1 1 exhibits which we will be publishing to the jury, some of which 2 we will be reading, I believe the only limiting instructions 3 that apply will be your instruction that the document is not 4 being considered for their truth. It is the defendant 5 Stewart's state of mind, intent and knowledge. 6 With respect to -- I'll list the exhibits. Do you 7 want me to do that, your Honor? 8 THE COURT: Sure. 9 MR. DEMBER: They are Exhibit 2625, 2630, 2623, 2624, 10 2628, 2626, 2612, 2611, 2627, 2619, 2622. And 2666, your 11 Honor, that is the immigration court decision that your Honor 12 ruled under the rule of completeness would be required to be 13 presented with those other exhibits -- some of those exhibits I 14 have just mentioned. We marked that as 2666. 15 THE COURT: There were two immigration decisions. 16 MR. DEMBER: Both of them. They are actually one 17 document stapled together. We marked them with one exhibit 18 number, your Honor. 19 By the way, this I have just read you, that is the 20 order in which they are coming in, your Honor, with no other 21 exhibits in between so far. And also 2620 and 2671. I 22 realized this morning there is two exhibits that were not 23 objected to by the defense which are Exhibits 2675 and 2776. 24 They are letters from the United States Department of State 25 which essentially give opinions about the Egyptian government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6624 4A4MSAT1 1 and what was transpiring in Egypt back in 1996. It is our 2 position clearly they are hearsay, your Honor. They were only 3 meant and intended to be offered to go to the defendant's state 4 of mind and her knowledge and intent, and we believe the same 5 instruction would apply to those two exhibits as well. 6 Your Honor, those are the only exhibits that we intend 7 to offer and publish to the jury at this point in the 8 presentation. There are a few others, but nothing that we will 9 be offering right now. 10 THE COURT: I'd have to compare these lists against 11 what I ruled. The representation is that all of these exhibits 12 come in with the instruction that these exhibits are not 13 offered for the truth of what is said in the exhibit and solely 14 with respect to Ms. Stewart's knowledge, intent, and state of 15 mind. 16 MR. TIGAR: Your Honor, we are hearing the list and 17 the order in which the government intends to present them for 18 the first time as well, and we do not know now which exhibits 19 the government intends to publish in full, which in part, and 20 how. And, of course, so as not to interrupt the proposed 21 publication with what are essentially 106 type objections, 22 shouldn't you be reading more and so on, that would be helpful 23 information for us. 24 Also, I assume that with respect to 2634, which is 25 Ms. Stewart's notebook, that the actual notebook will be in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6625 4A4MSAT1 1 evidence. 2 THE COURT: That wasn't one of the exhibits that was 3 listed. 4 MR. DEMBER: It was not listed, your Honor. I advised 5 counsel last week this is the exhibit which originally -- we 6 were just allowed to see and offered the last page of the 7 notebook. I offered counsel at the end of last week that we 8 were agreeing -- we had agreed to offer the entire notebook 9 into evidence. It is so marked that way. I advised counsel of 10 that last week. But there is no limiting instruction 11 associated with that exhibit, your Honor. 12 MR. TIGAR: There is. This is clearly I think the 13 extrinsic evidence shows that this is Ms. Stewart's writing and 14 therefore it comes in. But the copy we were given is not a 15 copy of all the pages of the notebook. That was my question. 16 I am asking whether or not the whole thing is coming in or not. 17 Ms. Grant, I can hear her saying it is a copy of all 18 pages that have writing. The significance, your Honor, is the 19 pages that don't have writing are important because the single 20 page that the government wanted to use is in fact separated 21 from the rest. And as long as the whole thing is coming in, I 22 have no objection. 23 MR. DEMBER: Your Honor, I thought I stated the whole 24 notebook has been marked as an exhibit and is all coming in. 25 Maybe I didn't make that clear. If I didn't, I apologize. But SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6626 4A4MSAT1 1 the whole notebook physically is coming into evidence, 2 including blank pages. 3 THE COURT: It seems to me that we should take a break 4 after Ms. Soliman's testimony and before we go through the 5 search exhibits relating to Ms. Stewart. 6 Are we ready to continue with Ms. Soliman and bring in 7 the jury? All right. 8 Mr. Fletcher, let's bring in the jury. 9 MR. BARKOW: Your Honor, before the jury comes in, 10 Mr. Tigar just provided me the redacted copy of this document 11 and we object to the redaction. It still has a header, last 12 modified. And our objection is any reference -- in fact, our 13 initial objection is any reference to the typewritten material 14 at all without sufficient foundation, and in particular to the 15 entire last modified column. This redaction still has at the 16 top last modified underlined and what's below that has been 17 redacted. 18 THE COURT: The last modified -- I think the last 19 modified column should come out. 20 MR. TIGAR: Including the words last modified. 21 THE COURT: Right. 22 MR. BARKOW: Your Honor, just to make clear, the 23 objection is, there should be no reference at all to the words 24 in that column until and unless a foundation is laid. 25 MR. TIGAR: I understand the Court's direction now. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6627 4A4MSAT1 1 had not understood it before. In fact -- 2 THE COURT: Do you need time? 3 MR. TIGAR: In fact, your Honor, may I confer briefly 4 with Mr. Barkow? Because I think we can resolve this now that 5 we understand the Court's order. 6 THE COURT: Absolutely. I will ask the jury to stay 7 out there for just a moment. 8 MR. TIGAR: Your Honor. 9 THE COURT: Let's, please take a moment before the 10 jury comes in. Mr. Fletcher, could you hold up. Give us five 11 more minutes, please. 12 MR. TIGAR: We have resolved the issue, your Honor. 13 We are just blacking out something here. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6628 4a4esat2 1 MR. TIGAR: We've agreed, your Honor, the document 2 Mr. Barkow's given to me is being shown to the witness to 3 refresh her recollection, and then there's no chance that she 4 would read something off it or say something off it that would 5 implicate what you just ruled on. 6 THE COURT: OK. So -- 7 MR. TIGAR: So we're ready. 8 THE COURT: All right. Mr. Fletcher, let's bring in 9 the jury. 10 (Recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6629 4a4esat2 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. It's 3 good to see you all. 4 As I have told you, I deal with various issues with 5 the parties early in the morning and again at the end of the 6 day. I try to deal with those issues without inconveniencing 7 you sitting in the jury box. And so sometimes the time when 8 you come in is somewhat delayed. I'm sorry about that. I try 9 to deal with issues as expeditiously as I can and to start as 10 early as I can, but as I say, I think it's more convenient for 11 you to wait in the jury room. 12 And we really don't in this case have sidebar 13 conferences and the like which exist in some other cases. And 14 that's because I try to deal with these issues in a way that, 15 among other things, is convenient for you. So if you're 16 delayed in coming in in the morning or at any of the breaks, I 17 appreciate your indulgence. It's all my responsibility and it 18 has nothing to do with anything that you'll decide in the case. 19 So I very much appreciate your indulgence, and as I said, it's 20 good to see you all. 21 Ms. Soliman is on the stand. 22 THE DEPUTY CLERK: Ms. Soliman, you are reminded you 23 are still under oath. 24 THE COURT: All right. Mr. Tigar, you may examine. 25 MR. TIGAR: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6630 4a4esat2 1 CROSS EXAMINATION 2 BY MR. TIGAR: 3 Q. Ms. Soliman, good morning. 4 A. Good morning. 5 Q. You were asked by some of the government lawyers to 6 translate -- excuse me, to listen to some calls that you were 7 telling us about, right? 8 A. Right. 9 Q. And you've -- at the time you were doing that, did you make 10 some notes on a piece of paper about what you could hear on 11 these calls? 12 A. Yes, I did. 13 Q. Would it help you to have a copy of those notes to look 14 back at while I'm asking you questions? 15 A. Yes. 16 MR. TIGAR: May I approach, your Honor. 17 THE COURT: Yes. 18 MR. TIGAR: And may I place before the witness the 19 notes of her work that she made. 20 THE COURT: Yes. 21 BY MR. TIGAR: 22 Q. And just pointing down here, that's your handwriting, 23 correct? 24 A. Yes. 25 Q. All right. Now, the first item on the -- let me go back a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6631 4a4esat2 Soliman - cross 1 ways. 2 When did you do the work that led you to make these 3 notes? When did you do the listening to the calls? 4 A. Before -- when I put the notes? 5 Q. Yes. 6 A. A day -- last week or the week before, I'm not sure when. 7 Q. Sometime in September of this year? 8 A. Yeah. 9 Q. And the first call that you listened to, the first thing 10 that you heard was just a sound of somebody punching some 11 digits, right? They were dialing some -- 12 A. Yes. 13 Q. And you could hear a voice that said, what do you mean, 14 right? 15 A. Right. 16 Q. And did you conclude from that that that was not a 17 completed telephone call, that was just somebody doing 18 something with the phone? 19 A. They were trying to dial a number, yes. 20 Q. But it didn't sound like they completed the call, correct? 21 A. No. 22 Q. It is correct it did not sound like they were completing 23 the call? 24 A. They did not. 25 Q. OK. And then the next thing on was you could hear on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6632 4a4esat2 Soliman - cross 1 next one down somebody dialed a number, correct? 2 A. Correct. 3 Q. And you could hear Mr. Yousry and Mr. Sattar talking, 4 right? 5 A. Yes. 6 Q. And in what languages or language were they speaking? 7 A. Arabic. 8 Q. In Arabic. And you are an Arabic speaker, right? 9 A. Right. 10 Q. So you could hear what they were saying, correct? 11 A. Correct. 12 Q. Then after a while that call -- that file finished, right? 13 A. The -- what finished? 14 Q. Their conversation that they were having? 15 A. Yeah, uh-huh. 16 Q. And the next file you listened to had some dialing but no 17 voices, right? 18 A. Correct. 19 Q. And the next file you listened to had Mr. Sattar talking to 20 Mr. Clark's home but -- and Mr. Yousry was also on, correct? 21 A. Correct. 22 Q. And that's when you heard someone at Mr. Clark's home say 23 that he's not there, correct, or did you listen to that part? 24 A. I did listen, but he spoke to them. 25 Q. With whom did -- who spoke with whom? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6633 4a4esat2 Soliman - cross 1 A. Mr. Clark. 2 Q. So your -- it's your recollection -- well, did you at any 3 time hear a -- on the call someone say, Mr. Clark is not here? 4 A. Yes. 5 Q. On which of the calls was it where Mr. Clark wasn't there? 6 A. You know, there's so many calls I do, I don't know just by 7 indicating, yes, this one and that one. There are hundreds of 8 calls. But I know from this piece of paper, I remember very 9 well that at one point his wife or someone said, he's not here, 10 and then after that he came, he came to the phone and they had 11 a conversation, three-way conversation, Yousry, Sattar and 12 Clark. 13 Q. So let -- then let's go back, then. 14 First file you listened to was just dialing, no 15 completion, correct? 16 A. Yes. 17 Q. Then you heard Mr. Yousry and Mr. Sattar start to have a 18 conversation, right? 19 A. Yes. 20 Q. Then Mr. Sattar and -- Mr. Sattar or somebody dialed in the 21 third party, which would be Mr. Clark's home, correct? 22 A. Correct, yes. 23 Q. Then someone, it sounded like Mrs. Clark, answered, 24 correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6634 4a4esat2 Soliman - cross 1 Q. And said he's not home, right? 2 A. Correct. 3 Q. And then next do you remember that there was dialing to 4 Mr. Clark's office and I think -- and people spoke to him 5 there? 6 A. Yes. 7 Q. Then do you remember that the conversation continued? 8 A. Yes. 9 Q. And do you remember that eventually Mr. Yousry got off the 10 phone and then somebody called on Mr. Mohammed Salah, and 11 Mr. Clark and Mr. Yousry spoke to Mr. Mohammed Salah, do you 12 remember that? 13 A. No. 14 Q. That was not -- that conversation, Mohammed Salah, was not 15 on the calls that you were asked to look at last September, 16 that is to say, ten days, two weeks ago, right? 17 A. (Nods head) 18 Q. As far as the calls you were asked to look at, it was -- as 19 far as it went, was Mr. Yousry and Mr. Sattar speaking to 20 Mr. Clark in his office, right? 21 A. Right. 22 Q. And from the point where you heard the dialing and somebody 23 saying, what do you mean, down to the last call that you 24 listened to, how many actual files was that on the disk that 25 you were looking for -- listening on? Excuse me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6635 4a4esat2 Soliman - cross 1 A. Six. 2 Q. Six. And -- thank you. 3 MR. TIGAR: I have no further questions -- excuse me, 4 your Honor, may I have one moment? 5 THE COURT: Yes, sure. 6 MR. TIGAR: Excuse me. 7 Q. Ms. Soliman, I am reminded that I probably misspoke. 8 The last call, that is when Mr. Yousry and Mr. Sattar 9 were calling, correct? 10 A. Yes. 11 Q. Now -- and I asked you, did you hear a later call where 12 Mr. Sattar and Mr. Clark continued to talk and they were 13 talking to Mr. Salah? 14 A. Not on this one. 15 Q. Not on this one. But you do remember another call that you 16 heard another time, do you, where Mr. Sattar and Mr. Clark were 17 talking to Mr. Salah; do you remember that one? 18 A. Yes. 19 MR. TIGAR: Thank you. No further questions. 20 MR. BARKOW: No questions, your Honor. 21 THE COURT: All right. Ms. Soliman, you're excused. 22 You may step down. 23 (Witness excused) 24 THE COURT: All right. Ladies and gentlemen, there 25 is -- I realize it's a bit early for you to take a midmorning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6636 4a4esat2 Soliman - cross 1 break, but we are going to take a midmorning break for about 15 2 minutes at this point. 3 So please remember my continuing instructions. Don't 4 talk about this case at all. Always remember to keep an open 5 mind until you've heard all the evidence, I've instructed you 6 on the law, you've gone to the jury room to begin your 7 deliberations. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6637 4a4esat2 Soliman - cross 1 (In open court; jury not present) 2 THE COURT: I'll take a break, you can talk about the 3 exhibits and then I'll return. 4 (Recess) 5 MR. PAUL: Your Honor, we have one scheduling request. 6 THE COURT: All right. Mr. Paul? 7 MR. PAUL: Your Honor, Mr. Morvillo stated that 8 perhaps some issues might be brought up at the end of today's 9 proceedings. I just want to alert the Court that this Monday 10 happens to be one of those visitation Mondays that will affect 11 my client. So I would ask that we break at 4:30 and not 12 continue tonight. 13 THE COURT: Sure. 14 MR. TIGAR: Your Honor, Ms. Shellow-Levine and 15 Mr. Dember have discussed some of these items at the break and 16 reached agreement with respect to a substantial number of them. 17 However, the first item that the government wants to read is 18 Government Exhibit 2635. 19 THE COURT: I thought 2625. 20 MR. TIGAR: 2635, yes, your Honor. 21 THE COURT: Is it 25 or 35? 22 MR. TIGAR: Three five, your Honor. And that is a 23 copy which looks like it came over either a fax or a document 24 retrieval system, and it contains 28 CFR Section 501.3. And 25 the government intends to read only the first page, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6638 4a4esat2 Soliman - cross 1 the regulation. 2 As going to Ms. Stewart's knowledge, intent and state 3 of mind, we would ask that the entire document be read to the 4 jury, if any of it is to be read. And the reason for that is 5 that the document was apparently found as a single item. The 6 regulation in question is one that was revised as of July 1, 7 1997, the Court can see that from the first page. 8 The later material which the collector, the person, 9 Ms. Stewart had had the document wanted, consists of a lot of 10 comments. And what happened was that the DOJ put out a 11 proposed rule-making that became 501.3. They opened it for 12 notice and comment under Section 4 of the Administrative 13 Procedure Act. Then after a notice and comment period they 14 issued this regulation dated in evidence as 2635. 15 But they did so, your Honor will see, with a great 16 deal of legislative history. And that legislative history is 17 absolutely essential to the understanding of what these 18 regulations -- that is, on page one -- mean. That is shown, 19 among other things, by the government exhibit which is the very 20 first SAM issued to Omar Abdel Rahman, which was a -- a 21 translation of which was played for the jury by videotape. 22 And you may remember the translator translating least 23 restrictive alternatives as this is the least they could do. 24 The least -- the legislative history is a discussion of how the 25 Department of Justice does not intend to have anything in these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6639 4a4esat2 Soliman - cross 1 regulations interfere with constitutional rights. 2 And so in terms of knowledge, intent and state of 3 mind, of course the remaining part is in our view important. 4 And that is our application; that if any is to be read, that it 5 all be read; or in the alternative, your Honor, since various 6 versions of this regulation are in evidence as having been 7 seized hither and tither but without the explanatory material, 8 that the document be simply shown rather than read. 9 But that's our position on that. We haven't finished 10 all of our discussions with the government about some of these 11 other items, but certainly the first 19 items that the 12 government had intended to publish in any way, resolution has 13 been reached, as I say, with the exception of this one, which 14 is the first of that list of 19. 15 So we could go quite some way before getting to 16 something as to which a discussion still remains to be had. 17 THE COURT: Government? 18 MR. DEMBER: Your Honor, we don't think that it's 19 necessary to read anything but the first page. It is what was 20 in effect when the SAM went into effect. What you have -- what 21 would end up happening, your Honor, is if we read the 22 additional pages, they include a repetition of what's on the 23 first page. Much of it, while there is some other language in 24 there, there is also a repetition of the language which is rule 25 50 -- Section 501.3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6640 4a4esat2 Soliman - cross 1 And so, you know, the jury's just going to hear the 2 same thing over and over again. It's just simply a waste of 3 their time, your Honor. 4 THE COURT: OK. I can't -- as an alternative, 5 Mr. Tigar says display but don't read; admit, display, don't 6 read. 7 MR. DEMBER: I hear that, your Honor. And, frankly, 8 if your Honor directs me to read the entire document, I'm not 9 going to read the entire document; I'll simply display it. But 10 I don't think it's necessary -- sorry. 11 THE COURT: I didn't mean to interrupt you. It's just 12 I can't decide a completeness issue because it -- at this point 13 it depends on your statement that the rest of the document 14 includes several other readings of 501.3 and Mr. Tigar's 15 statement that there are -- there is some language in -- 16 somewhere in the rest of the document which I can't find, 17 having seen the document now, but some language that he wants 18 read; probably doesn't want the whole 501.3 read continually, 19 but wants some, quote, legislative history read. 20 Whether the parties can resolve that, I don't know, 21 but I can't resolve it without reading the whole document now. 22 MR. DEMBER: Understood, your Honor. 23 Under the circumstances, your Honor, I will simply 24 display this document. 25 THE COURT: OK. It was not a document which my notes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6641 4a4esat2 Soliman - cross 1 indicate there had been any objection to. 2 MR. TIGAR: Absolutely not, your Honor. And that was 3 because the document as a whole, taken as a whole, is quite 4 favorable to the defense position here and Ms. Stewart's 5 understanding of the department's serious reservations about 6 what it's doing in this... 7 THE COURT: And because there was no objection, there 8 was no request for a limiting instruction on 2635 either. 9 MR. DEMBER: Correct, your Honor, there was none. 10 MR. TIGAR: No, your Honor, it's admitted -- well, as 11 far as we're concerned, there's no need for a limiting 12 instruction. It is law, as to which the Court would instruct. 13 It does go to Ms. Stewart's knowledge, intent and state of 14 mind. There are backward looking statements in the document, 15 particularly in the third page, commentators have told us X, Y 16 and Z, but they don't appear to be important, just people 17 expressing opinions. 18 THE COURT: OK. 19 MR. TIGAR: I don't want the Court to be misled about 20 what we say is in the document, but we don't see a need for a 21 limiting instruction. 22 THE COURT: The government doesn't either? 23 MR. DEMBER: No, your Honor. 24 THE COURT: OK. The remaining 19 initial documents, 25 do they come in with a limiting instruction or not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6642 4a4esat2 Soliman - cross 1 MR. DEMBER: Your Honor, most of those documents 2 consist of the same two -- they're SAMs-related documents. 3 They're either versions of the SAMs that were found during the 4 search, they are letters that accompany the SAMs, they're 5 affirmations. Some are blank, some are signed. 6 THE COURT: That's not the list you directed me to 7 earlier. 8 MR. DEMBER: You asked me earlier for what exhibits 9 required instructions. 10 THE COURT: Ah. 11 MR. DEMBER: So I gave you the ones that required 12 instructions, which the Court gave instructions for. These are 13 not. 14 THE COURT: I was just unclear. So you've got 19 15 documents as to which there is no objection and no request for 16 limiting instructions? 17 MR. TIGAR: Just a moment, your Honor, just to make 18 sure. 19 2657, your Honor, does have the attached newspaper 20 articles, but I think the government does not intend to publish 21 or read those, only to show them. But to the extent it shows 22 them, that's the August 3rd, 2000, letter, your Honor. 23 MR. DEMBER: Your Honor ruled that we could read the 24 fax cover sheets, cover letter from Mr. Fitzgerald and the 25 titles, authors and dates of the accompanying articles but not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6643 4a4esat2 Soliman - cross 1 read the articles, and we're going to do just that. 2 THE COURT: I've previously, I think, given an 3 instruction on those articles. They're not received for the 4 truth, they're newspaper articles. 5 MR. TIGAR: Yes, your Honor. 6 THE COURT: I'll give that instruction again, though. 7 MR. TIGAR: In the first 19, that's the only one, your 8 Honor. 9 THE COURT: OK. We're able to bring in the jury. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6644 4a4esat2 Soliman - cross 1 (In open court; jury present) 2 THE COURT: All right. Mr. Dember. 3 MR. DEMBER: Your Honor, at this time we'd ask 4 permission to present to the jury some of the exhibits that 5 were seized from a search of Ms. Stewart's office in April of 6 2002. May we do that? 7 THE COURT: All right. 8 MR. DEMBER: Your Honor, may we first display for the 9 jury Government Exhibit 2635. 10 THE COURT: And when you do that, note that exhibits 11 are in evidence. 12 MR. DEMBER: I'm sorry, your Honor? 13 THE COURT: When you mention an exhibit, mention that 14 it's in evidence. 15 So Government Exhibit 2635 in evidence? 16 MR. DEMBER: In evidence, your Honor, yes. 17 THE COURT: All right. 18 (Government Exhibit 2635 displayed for the jury) 19 MR. DEMBER: Your Honor, at this time may we display 20 for the jury Government Exhibit 2636, which is in evidence. 21 THE COURT: All right. 22 MR. DEMBER: Your Honor, at the top it simply reads 23 attorney's affirmation. 24 (Government Exhibit 2636 displayed for the jury) 25 MR. DEMBER: May I go to the next page, at the top it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6645 4a4esat2 Soliman - cross 1 reads notification of Special Administrative Measures, May 11, 2 1998. 3 (Pause) 4 MR. DEMBER: Your Honor, may we display for the jury 5 Government Exhibit 2645. 6 THE COURT: In evidence? 7 MR. DEMBER: In evidence. I'm sorry, your Honor. 8 THE COURT: All right. 9 (Government Exhibit 2645 displayed for the jury) 10 MR. DEMBER: And with your permission, your Honor, I 11 will read the first page of the exhibit. 12 THE COURT: All right. 13 MR. DEMBER: It reads: Attorney's affirmation. Lynne 14 Stewart, pursuant to 28 U.S.C., Section 1746 hereby affirms 15 under the penalties of perjury the truth of the following: 16 One, I am counsel of record for inmate Omar Abdel 17 Rahman (USMS number 34892-054) and have read the "notification 18 of Special Administrative Measures" for inmate Omar Abdel 19 Rahman, dated May 11, 1998, and consisting of five (5) pages. 20 I understand the restrictions contained in that document and 21 agree to abide by its terms, including the fact that I will not 22 patch any calls by inmate Abdel Rahman through to third parties 23 (or otherwise transfer such calls), nor will I allow third 24 persons (other than cleared translators who will be present in 25 my office with me or my cocounsel) to participate in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6646 4a4esat2 Soliman - cross 1 conversations. I have also instructed the staff in my office 2 that such staff are not to patch any calls by inmate Abdel 3 Rahman through to third parties (or otherwise transfer such 4 calls), nor will such staff allow third persons (other than 5 cleared translators who will be present in my office with me or 6 my cocounsel) to participate in the conversations. I also 7 agree that I will not record any conversations with inmate 8 Abdel Rahman or allow any member of my office or staff to do 9 so. 10 Two, I also understand that during any visits to 11 inmate Abdel Rahman at any prison facilities, I shall again 12 employ only cleared translators/interpreters and shall not 13 leave such translator/interpreter alone with inmate Abdel 14 Rahman. Moreover, I shall only be accompanied by translators 15 for the purpose of communicating with inmate Abdel Rahman 16 concerning legal matters. 17 Three, I further understand that neither I nor any 18 member of my office shall forward any mail received from inmate 19 Abdel Rahman to a third person, nor shall I use my meetings, 20 correspondence or phone calls with Abdel Rahman to pass 21 messages between third parties (including, but not limited to, 22 the media) and Abdel Rahman. 23 Four, I understand that the Bureau of Prisons is 24 relying upon my sworn representations as a member of the bar in 25 this affidavit in affording inmate Abdel Rahman the opportunity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6647 4a4esat2 Soliman - cross 1 to meet and/or speak and/or correspond with me and my office 2 and that any violation of these understandings could, among 3 other things, result in further limitation (or even 4 elimination) of inmate Abdel Rahman's ability to contact me or 5 my office. 6 It reads Lynne Stewart, Esquire, the signature name 7 Lynne Stewart, dated May 7, 1998, New York, New York. 8 Let's turn to the next page. And it reads, 9 notification of Special Administrative Measures, May 11, 1998. 10 Turn the page, please. 11 Your Honor, at this time may we display for the jury 12 Government Exhibit 2655, which is in evidence. 13 THE COURT: All right. 14 MR. DEMBER: May I have a moment, your Honor, to 15 consult with counsel. 16 THE COURT: Sure. 17 (Government Exhibit 2655 displayed to the jury) 18 MR. DEMBER: Your Honor, I'm going to read this first 19 page of the exhibit. It's dated August 23rd, 1999. It 20 indicates by Federal Express, addressed to Lynne Stewart, 21 Esquire, 21 Warren Street, Suite 3E, New York, New York 10007. 22 Re Omar Ahmad Ali Abdel Rahman. 23 Dear Ms. Stewart, enclosed please find your copy of 24 the "notification of Special Administrative Measures" (SAM) for 25 Omar Ahmad Ali Abdel Rahman. After reading the SAM, please SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6648 4a4esat2 Soliman - cross 1 sign the enclosed "attorney's affirmation" and return the 2 original to our office. 3 Very truly yours, Mary Jo White, United States 4 Attorney, Southern District of New York, by Gerard C. 5 Francisco, paralegal specialist, 212-637-1020. And there's a 6 signature from Mr. Francisco. 7 Could we just turn to the next page. It indicates the 8 attorney affirmation. Why don't we turn to the next page. 9 And at the top it reads, notification of Special 10 Administrative Measures, April 7, 1999. And why don't we go 11 through each of the pages, please. 12 Your Honor, may we display for the jury Government 13 Exhibit 2654, which is in evidence. 14 THE COURT: Yes. 15 (Government Exhibit 2654 was displayed for the jury) 16 MR. DEMBER: And I will read it. Letter dated May 9, 17 2000, via fax, 507-287-9603. Addressed to Warden Wise, FMC 18 Rochester, PO Box 4600, 2110 East Centre Street, Rochester, 19 Minnesota, 55072. 20 Re: Omar Abdel Rahman, 34892-054, legal visit. 21 Dear Warden Wise: I am writing with regard to a legal 22 visit with the above referenced inmate. I would be accompanied 23 as previously by interpreter Mohammed Yousry. We wish to visit 24 Mr. Rahman on Friday, May 19th, and Saturday, May 20, 2000. 25 Please contact my office as soon as possible to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6649 4a4esat2 Soliman - cross 1 confirm your approval of our planned visit on those dates. You 2 can speak to Pat, the paralegal in my office, with the 3 confirmation. 4 Thank you for your kind attention to this matter. 5 Very truly yours, Lynne F. Stewart. 6 There's a signature and the same name. 7 May we display for the jury Government Exhibit 2644, 8 which is in evidence. 9 THE COURT: All right. 10 (Government Exhibit 2644 was displayed to the jury) 11 MR. DEMBER: The first page is a fax cover sheet from 12 a Federal Medical Center. It indicates sensitive official 13 government business. 14 It's addressed to Lynne Stewart, Attorney, date, 15 May 12, 2000, fax number, 212-625-3939. Pages indicates two, 16 including this cover sheet. From Jeffrey E.E. Toenges, 17 attorney advisor. 18 Subject, Omar Rahman, register number 34892-054. 19 Below that in handwriting it appears to read, visit 20 approved, note, "new" warden. 21 And turn to the next page, please. 22 It's a letter dated May 12, 2000, addressed to Lynne 23 F. Stewart, attorney at law, 351 Broadway, Third Floor, 24 New York, New York 10013. 25 Re: Omar Abdel Rahman, federal register number SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6650 4a4esat2 Soliman - cross 1 34892-054. 2 Dear Ms. Stewart, this is in response to your 3 correspondence dated May 9, 2000, wherein you request to have a 4 legal visit with Omar Abdel Rahman on May 19 and May 20, 2000. 5 You also request that your interpreter, Mohammed Yousry, be 6 authorized to accompany you during the visit. 7 The warden has approved your request for a legal visit 8 with Mr. Rahman. Accordingly, you and Mr. Yousry are 9 authorized to visit with Mr. Rahman on May 19 and 20, 2000. 10 For your general information, you may be processed into the 11 institution at 8:30 a.m. on both days and the visits may last 12 until 3:00 p.m. on both days. 13 Finally, for your general information, Constance Reese 14 is the warden at the Federal Medical Center in Rochester, 15 Minnesota, a position she assumed after former warden Phill 16 Wise was promoted to assistant director of the health services 17 division of the Bureau of Prisons in March of 1999. 18 Sincerely, Jeffrey E.E. Toenges, attorney-advisor, and 19 with the signature of Mr. Toenges. And the letter is cc'ed 20 Constance Reese, warden. 21 The next page, your Honor, is a duplicate of letter, 22 hard copy letter -- it's the same letter. I will not read it. 23 And the final page of the exhibit, your Honor, is an 24 envelope addressed to Lynne Stewart from the Federal Bureau of 25 Prisons, Federal Medical Center in Rochester, Minnesota. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6651 4a4esat2 Soliman - cross 1 Your Honor, may we display for the jury Government 2 Exhibit 2653 which is in evidence. 3 THE COURT: Yes. 4 (Government Exhibit 2653 was displayed to the jury) 5 MR. DEMBER: And I'll just read the top two lines, 6 your Honor. They read, notification of Special Administrative 7 Measures, December 10, 1999. 8 And if you could just scroll through the pages, 9 please. 10 Your Honor, may we display for the -- I'm sorry. Your 11 Honor, may we display for the jury Government Exhibit 2662. 12 THE COURT: Yes. 13 MR. DEMBER: Which is in evidence. 14 THE COURT: Yes. 15 MR. DEMBER: And may we just focus in on the top of 16 the document, please, Ms. Griffith. 17 Again, it reads notification of Special Administrative 18 Measures, December 10, 1999. It appears to be another copy of 19 the same document as the previous exhibit, your Honor. 20 May we -- before we put up the next exhibit, may we 21 display -- 22 THE COURT: I'm sorry. The exhibit that you just 23 displayed was 2662? 24 MR. DEMBER: I'm sorry, your Honor. It is 2662. 25 THE COURT: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6652 4a4esat2 Soliman - cross 1 MR. DEMBER: May we display Government Exhibit 2659, 2 which is in evidence. 3 THE COURT: All right. 4 (Government Exhibit 2659 was displayed to the jury) 5 MR. DEMBER: And I will read this exhibit, your Honor. 6 The top indicates it's from Lynne F. Stewart, attorney 7 at law, 351 Broadway, Third Floor, New York, New York 10013. 8 I'll skip down to the date. There's a telephone 9 number and fax number there. 10 The date is May 26, 2000. It's addressed to Paul W. 11 Butler, Assistant United States Attorney, Office of the United 12 States Attorney, Southern District of New York, One Saint 13 Andrew's Plaza, New York, New York 10007. 14 Re: Dr. Omar Abdel Rahman. 15 Dear Mr. Butler, enclosed please find my signed 16 "attorney's affirmation" with regard to Sheikh Omar Abdel 17 Rahman. 18 Very truly yours, Lynne F. Stewart. 19 And I will read the second page of the document. Why 20 don't we turn to the second page. It reads as follows: 21 Attorney affirmation. Lynne Stewart, pursuant to 28 22 U.S.C., Section 1746, hereby affirms under the penalties of 23 perjury the truth of the following: 24 One, I am counsel of record for inmate Omar Abdel 25 Rahman (USMS number 34892-054) and have read the "notification SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6653 4a4esat2 Soliman - cross 1 of Special Administrative Measures" for inmate Omar Abdel 2 Rahman, dated December 10, 2000, and consisting of eight pages. 3 I understand the restrictions contained in that document and 4 agree to abide by its terms, including the fact that I will not 5 patch any calls by inmate Abdel Rahman through to third parties 6 (or otherwise transfer such calls), nor will I allow third 7 persons (other than cleared translators who will be present in 8 my office with me or my cocounsel) to participate in the 9 conversations. I have also instructed the staff in my office 10 that such staff are not to patch any calls by inmate Abdel 11 Rahman through to third parties (or otherwise transfer such 12 calls) nor will such staff allow third persons (other than 13 cleared translators who will be present in my office with me or 14 my cocounsel) to participate in the conversations. I also 15 agree that I will not record any conversations with inmate 16 Abdel Rahman or allow any member of my office or staff to do 17 so. 18 Two, I also understand that during any visits to 19 inmate Abdel Rahman at any prison facilities I shall again 20 employ only cleared translators/interpreters and shall not 21 leave such translator/interpreter alone with inmate Abdel 22 Rahman. Moreover, I shall only be accompanied by translators 23 for the purpose of communicating with inmate Abdel Rahman 24 concerning legal matters. 25 Three, I further understand that neither I nor any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6654 4a4esat2 Soliman - cross 1 member of my office shall forward any mail received from inmate 2 Abdel Rahman to a third person, nor shall I use my meetings, 3 correspondence or phone calls with Abdel Rahman to pass 4 messages between third parties (including, but not limited to, 5 the media) and Abdel Rahman. 6 Four, I understand that the Bureau of Prisons is 7 relying upon my sworn representations as a member of the bar in 8 this affidavit in affording inmate Abdel Rahman the opportunity 9 to meet and/or speak and/or correspond with me and my office 10 and that any violation of these understandings could, among 11 other things, result in further limitation (or even 12 elimination) of inmate Abdel Rahman's ability to contact me or 13 my office. 14 Indicates Lynne Stewart, Esquire, and then signature 15 in the same name, dated May 16, 2000, New York, New York. 16 Your Honor, may we display to the jury Government 17 Exhibit 2652 in evidence. 18 (Government Exhibit 2652 was displayed to the jury) 19 THE COURT: Yes. 20 MR. DEMBER: Which is, your Honor, the same document I 21 just read for the jury. 22 May we display for the jury Government Exhibit 2657 in 23 evidence. 24 THE COURT: Yes. 25 (Government Exhibit 2652 was displayed to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6655 4a4esat2 Soliman - cross 1 MR. DEMBER: I'll read the first page. On the top it 2 appears to be a fax cover sheet, indicates it's from the law 3 offices of Lynne F. Stewart, 351 Broadway, Suite 300, New York, 4 New York 10012. There appears to be a phone number and fax 5 number. 6 The date indicates it's August 28, 2000. 7 Pages to follow: 15. 8 To: Ahmed Sattar, 718-442-3513, from Lynne F. 9 Stewart. 10 There is nothing on the line that indicates Re, 11 regarding, and below it reads, if you do not receive all these 12 pages, call Tanya. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6656 4A4MSAT3 1 MR. DEMBER: It appears to be the same type of fax 2 cover sheet. I'll read starting on the date line. The date 3 indicates it is August 28, 2000. Pages to follow indicates 15 4 to Abdeen Jabara/Clark, 979-1583, from Lynne F. Stewart. At 5 the very bottom it reads: If you do not receive all these 6 pages, call Tanya. 7 Ms. Griffith turn to the next page, please. 8 Again, it is a fax cover sheet. I'll start on the 9 date line. The date indicates it is 8/28/2000, August 28, 10 2000. Pages to follow indicates 15. To Yousry, 718, and then 11 crossed out are the numbers 396-1418. Written next to that are 12 429-9547. Below that is the name Abdeen Jabara from Lynne F. 13 Stewart, Esq. It reads: If you do not receive all these 14 pages, call Tanya. 15 Ms. Griffith, turn to the next page. 16 It is a letter dated August 3, 2000, addressed to 17 Lynne Stewart, Esq., 351 Broadway, Third Floor, New York, New 18 York 10014. RE: Omar Abdel Rahman. 19 Dear Ms. Stewart, several recent press articles have 20 been brought to my attention which appear to indicate that in 21 or about June of this year you visited Omar Abdel Rahman at the 22 Federal Medical Center in Rochester, Minnesota, and thereafter 23 released a statement (or statements) of inmate Abdel Rahman in 24 violation of the Special Administrative Measures imposed upon 25 him. I enclose copies of those articles as well as a copy of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6657 4A4MSAT3 1 your affirmation indicating your agreement to abide by those 2 conditions. Suffice it to say that the government is extremely 3 concerned that violations of the Special Administrative 4 Measures by persons given access to inmate Abdel Rahman can 5 lead to the loss of life in the United States or abroad. As 6 you are aware, Abdel Rahman was convicted at trial of various 7 terrorism offenses, including soliciting crimes of violence. 8 As you are also no doubt aware, terrorist actions have been 9 carried out in Abdel Rahman's name subsequent to his 10 conviction, including the killing of approximately 60 tourists 11 in Luxor, Egypt in November 1997 and the kidnaping of tourists 12 in the Philippines in the spring of 2000 (copies of several 13 press articles concerning these events are enclosed.) 14 Moreover, the Islamic Group with which Abdel Rahman is 15 affiliated has been officially designated a foreign terrorist 16 organization by the United States. 17 The intent of the Special Administrative Measures is 18 to deprive Abdel Rahman, convicted of terrorism offenses, of 19 communication facilities and equipment. Abdel Rahman has been 20 afforded a right to meet with counsel, which should not be 21 abused, to allow Abdel Rahman to pass messages which, simply 22 put, can get people killed and buildings blown up. 23 This office is recommending to the Office of 24 Enforcement Operations of the Department of Justice that you 25 must execute an amended affirmation recognizing the severity of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6658 4A4MSAT3 1 the consequences of a violation of the Special Administrative 2 Measures before any more legal visits can even be contemplated. 3 I enclose such an affirmation. 4 Very truly yours, Mary Jo White, United States 5 Attorney, Southern District of New York by Patrick J. 6 Fitzgerald, chief, organized crime terrorism unit, 7 212-637-1045. Above that is the signature of Patrick 8 Fitzgerald. 9 It is CC'd to Warden Constance Reese, FMC, Rochester; 10 Jeff Toenges, Esq., FMC Rochester; Michael Brave, Office of 11 Enforcement Operations, Department of Justice. 12 Next page is an attorney affirmation and it reads as 13 follows. 14 THE COURT: Attorney's affirmation. 15 MR. DEMBER: I'm sorry, your Honor? 16 THE COURT: Attorney's affirmation. 17 MR. DEMBER: Attorney's affirmation. 18 Reads as follows: Lynne Stewart, pursuant to 28 19 U.S.C. Section 1746, hereby affirms under the penalties of 20 perjury the truth of the following: 21 1. I am counsel of record for inmate Omar Abdel 22 Rahman (USMS No. 34892-54) and have read the notification of 23 Special Administrative Measures for inmate Omar Abdel Rahman, 24 dated December 10, 1999, and consisting of eight pages. I 25 understand the restrictions contained in that document and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6659 4A4MSAT3 1 agree to abide by its terms, including the fact that I will not 2 patch any calls by inmate Abdel Rahman through to third parties 3 (or otherwise transfer such calls), nor will I allow third 4 persons (other than cleared translators who will be present in 5 my office with me or my cocounsel) to participate in the 6 conversations. I have also instructed the staff in my office 7 that such staff are not to patch any calls by inmate Abdel 8 Rahman through to third parties( or otherwise transfer such 9 calls), nor will such staff allow third persons (other than 10 cleared translators who will be present in my office with me or 11 my cocounsel) to participate in the conversations. I also 12 agree that I will not record any conversations with inmate 13 Abdel Rahman or allow any member of my office or staff to do 14 so. I further specifically understand that the telephone calls 15 shall not be for the purpose of Abdel Rahman presenting 16 statements to the defense team for further dissemination to 17 third parties, including the media. I will only allow the 18 calls to be used for legal discussion between Abdel Rahman and 19 me. 20 I also understand that during my visits inmate Abdel 21 Rahman at any prison facilities, I shall again employ only 22 cleared translators/interpreters and shall not leave such 23 translator/interpreter alone with inmate Abdel Rahman. 24 Moreover, I shall only be accompanied by translators for the 25 purpose of communicating with inmate Abdel Rahman concerning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6660 4A4MSAT3 1 legal matters. I further specifically understand that the 2 meetings shall not be for the purpose of presenting statements 3 to the defense team for further dissemination to third parties, 4 including the media. I will only allow the meetings to be used 5 for legal discussion between Abdel Rahman and me. 6 3. I further understand that neither I nor any member 7 of my office shall forward any mail received from inmate Abdel 8 Rahman to a third person. Nor shall I use my meetings, 9 correspondence or phone calls with Abdel Rahman to pass 10 messages between third parties (including but not limited to, 11 the media) and Abdel Rahman. I further specifically understand 12 that I shall not broadcast messages for Abdel Rahman directly 13 or indirectly to or through the media, including, but not 14 limited to, messages concerning Abdel Rahman's views -- 15 positive, negative or neutral -- concerning the propriety of 16 violence. I shall not pass any mail received on to any third 17 parties and shall ensure that all mail received is translated 18 by a cleared interpreter and reviewed by me or other cleared 19 counsel. I further understand that if Abdel Rahman wishes to 20 communicate in any way through the media he shall only do so by 21 making a request through the Bureau of Prisons. 22 4. I understand that the Bureau of Prisons is relying 23 upon my sworn representations as a member of the bar in this 24 affidavit in affording inmate Abdel Rahman the opportunity to 25 meet and/or speak and/or correspond with me and my office and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6661 4A4MSAT3 1 that any violation of these understandings could, among other 2 things, result in further limitation (or even elimination) of 3 inmate Abdel Rahman's ability to contact me or my office. I 4 further specifically understand that Abdel Rahman has been 5 convicted of terrorism offenses, including soliciting crimes of 6 violence, and that terrorist actions have been carried out in 7 his name subsequent to his conviction, including the killing of 8 approximately 60 tourists in Luxor, Egypt, in November 1997, 9 and the kidnaping of tourists in the Philippines in the spring 10 of 2000. Moreover, the Islamic Group with which Abdel Rahman 11 is affiliated has been designated a foreign terrorist 12 organization by the secretary of state. I thus understand that 13 a violation of the Special Administrative Measures, including 14 but not limited to, dissemination of messages on behalf of 15 Abdel Rahman can result in violence to persons or property here 16 in the United States or overseas. I specifically understand 17 that the intent of the Special Administrative Measures is to 18 deprive Abdel Rahman, convicted of terrorism offenses, of 19 communication facilities and equipment and that his opportunity 20 to consult with counsel is not to be converted into an 21 opportunity to use communication equipment and facilities for 22 any purpose other than legal consultation. 23 Below that is the name Lynne Stewart, Esq. It is 24 dated August -- the date itself is blank -- 2000, New York, New 25 York. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6662 4A4MSAT3 1 Can we turn to the next page, Ms. Griffith. 2 Your Honor, this is an article, dated Wednesday, June 3 14 -- 4 THE COURT: Before you do that, ladies and gentlemen, 5 there are some newspaper articles here and the newspaper 6 articles are not received for the truth of any of the matters 7 asserted in the articles but solely with respect to the 8 knowledge, intent, and state of mind of Ms. Stewart. 9 MR. DEMBER: Your Honor, this is an article dated 10 Wednesday, June 14, 2000. Its title is: Egypt, Spiritual 11 Chief of Egypt militants Renounces Truce by Esmat Salaheddin. 12 Why don't you go to the next page and the next page, 13 Ms. Griffith. 14 This is another article. It is dated Sunday, June 18, 15 2000. Its title is Egypt interview: Egypt's Moslem Militants 16 Reconsider Truce, by Esmat Salaheddin. 17 The next article is dated Monday, June 19, 2000. The 18 title of the article is: Lawyer: Imprisoned Militant Leader 19 Calls for Reevaluation of Group's Ceasefire, not its 20 cancellation, by Tarek El-Tablawy, Associated Press writer. 21 The next article is dated Friday, June 23, 2000 from 22 the Agence France-Presse. The title of the article is: 23 Egyptian Islamist Leader Renounces Ceasefire. 24 Your Honor, at this time may we display for the jury 25 and also read Government Exhibit 2651, which is in evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6663 4A4MSAT3 1 THE COURT: All right. 2 MR. DEMBER: It is a letter from Lynne F. Stewart, 3 attorney at law, 351 Broadway, Third Floor, New York, New York. 4 It is dated September 1, 2000. It indicates it is via 5 facsimile and regular mail, addressed to Warden Constance 6 Reese, FMC Rochester. P.O. Box 4600, 2110 Center Street, 7 Rochester, Minnesota 55903. RE: Addendum to previous letter 8 RE: Interpreter accompanying attorney visit. Dr. Omar Abdel 9 Rahman, registration No. 34892-054. 10 Dear warden Reese: I am writing to request a legal 11 visit with my client, Dr. Omar Abdel Rahman, on Friday, 12 September 15 and Saturday, September 16, 2000. I will be 13 accompanied by interpreter Mohammed Yousry. 14 It is crucial to an ongoing discussion of his legal 15 problems and the conditions lawsuit we are preparing to file. 16 Please confirm this date with my office. Thank you. 17 Very truly yours, Lynne F. Stewart. And there is a 18 handwritten Lynne F. Stewart slash and I can't read the 19 initials. There is a CC to AUSA Patrick Fitzgerald and Jeff 20 Tsongas, legal department, FMC, Rochester. 21 Next page is a fax cover sheet from the law offices of 22 Lynne F. Stewart. The date is September 1, 2000. Pages to 23 follow is one. To Warden Reese; CC: Jeff Tsongas/encircled 24 AUSA Patrick Fitzgerald, from Lynne F. Stewart, Esq.; RE, 25 Rahman/legal visit. If you do not receive these pages, call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6664 4A4MSAT3 1 Pat, 625-9696. 2 Your Honor, may we display and read for the jury 3 Government Exhibit 2650 in evidence? 4 THE COURT: Yes. 5 MR. DEMBER: The letterhead indicates it is from the 6 Federal Bureau of Prisons, Federal Medical Center, P.O. Box 7 4600, Rochester, Minnesota. The date is September 11, 2000. 8 Addressed to Lynne Stewart, attorney at law, 351 Broadway, 9 Third Floor, New York, New York 10014. RE: Omar Abdel Rahman. 10 Register No. 34892-054. 11 Dear Ms. Stewart: After a recent legal visit at the 12 Federal Medical Center in Rochester, Minnesota, you made 13 statements to the press that violated the Special 14 Administrative Measures imposed upon Omar Abdel Rahman. I am 15 informed that as a result of your actions, the United States 16 Attorney for the Southern District of New York requested that 17 you execute an amended affirmation before any future legal 18 visits are approved. I understand that as of today, September 19 11, 2000, you have not yet executed the amended affirmation. 20 Accordingly, I am rescinding my previous approval of your legal 21 visit with Omar Abdel Rahman scheduled for September 15 and 16, 22 2000. 23 Consideration for future legal visits will be given 24 after you have executed the required amended affirmation. 25 Sincerely, Constance Reese, Warden. And there is a CC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6665 4A4MSAT3 1 to Pat Fitzgerald, AUSA, and file. 2 Your Honor, may we display and read to the jury 3 Government Exhibit 2648, which is in evidence? 4 THE COURT: Yes. 5 MR. DEMBER: The top reads: Attorney's affirmation. 6 Lynne Stewart, pursuant to 28 U.S.C. 1746, hereby 7 affirms under the penalties of perjury the truth of the 8 following: 9 1. I am counsel of record for inmate Omar Abdel 10 Rahman (USMS No. 34892-054) and have read the "notification of 11 Special Administrative Measures" for inmate Omar Abdel Rahman, 12 dated March 26, 2001, and consisting of eight pages. I 13 understand the restrictions contained in that document and 14 agree to abide by its terms, including the fact that I will not 15 patch any calls by inmate Abdel Rahman through to third parties 16 (or otherwise transfer such calls), nor will I allow third 17 persons (other than cleared translators who will be present in 18 my office with me or my cocounsel) to participate in the 19 conversations. I have also instructed the staff in my office 20 that such staff are not to patch any calls by inmate Abdel 21 Rahman through to third parties (or otherwise transfer such 22 calls), nor will such staff allow third persons (other than 23 cleared translators who will be present in my office with me or 24 my cocounsel) to participate in the conversations. I also 25 agree that I will not record any conversations with inmate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6666 4A4MSAT3 1 Abdel Rahman or allow any member of my office or staff to do 2 so. I further specifically understand that the telephone calls 3 shall not be for the purpose of Abdel Rahman presenting 4 statements to the defense team for further dissemination to 5 third parties, including the media. I will only allow the 6 calls to be used for legal discussion between Abdel Rahman and 7 me. 8 2. I also understand that during my visits to inmate 9 Abdel Rahman at any prison facilities, I shall again employ 10 only cleared translators/interpreters and shall not leave such 11 translator/interpreter alone with inmate Abdel Rahman. 12 Moreover, I shall only be accompanied by translators for the 13 purpose of communicating with inmate Abdel Rahman concerning 14 legal matters. I further specifically understand that the 15 meetings shall not be for the purpose of presenting statements 16 to the defense team for further dissemination to third parties, 17 including the media. I will only allow the meetings to be used 18 for legal discussion between Abdel Rahman and me. 19 3. I further understand that neither I nor any member 20 of my office shall forward any mail received from inmate Abdel 21 Rahman to a third person. Nor shall I use my meetings, 22 correspondence or phone calls with Abdel Rahman to pass 23 messages between third parties (including, but not limited to, 24 the media) and Abdel Rahman. I further specifically understand 25 that I shall not broadcast messages for Abdel Rahman directly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6667 4A4MSAT3 1 or indirectly to or through the media, including, but not 2 limited to, messages concerning Abdel Rahman's views -- 3 positive, negative or neutral -- concerning the propriety of 4 violence. I shall not pass any mail received on to any third 5 parties and shall ensure that all mail received is translated 6 by a cleared interpreter and reviewed by me or other cleared 7 counsel. I further understand that if Abdel Rahman wishes to 8 communicate in any way through the media, he shall only do so 9 by making a request through the Bureau of Prisons. 10 4. I understand that the Bureau of Prisons is relying 11 upon my sworn representations as a member of the bar in this 12 affidavit in affording inmate Abdel Rahman the opportunity to 13 meet and/or speak and/or correspond with me and my office and 14 that any violation of these understandings could, among other 15 things, result in further limitation (or even elimination) of 16 inmate Abdel's Rahman's ability to contact me or my office. I 17 further specifically understand that Abdel Rahman has been 18 convicted of terrorism offenses, including soliciting crimes of 19 violence, and that terrorist actions have been carried out by 20 persons using his name subsequent to his conviction, including 21 the killing of approximately 60 tourists in Luxor, Egypt, in 22 November 1997 and the kidnapping of tourists in the Philippines 23 in the spring of 2000. Moreover, the Islamic Group, which the 24 United States believes Abdel Rahman was affiliated with in the 25 past and has never disowned, has been designated a foreign SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6668 4A4MSAT3 1 terrorist organization by the secretary of state. I thus 2 understand that the United States is concerned that a violation 3 of the Special Administrative Measures including, but not 4 limited to, dissemination of messages on behalf of Abdel Rahman 5 can result in violence to persons or property here in the 6 United States or overseas. I specifically understand that the 7 intent of the Special Administrative Measures is to deprive 8 Abdel Rahman, convicted of terrorism offenses, of communication 9 facilities and equipment, and that this opportunity to consult 10 with counsel is not to be converted into an opportunity to use 11 communication equipment and facilities for any purpose other 12 than legal consultation. 13 It then reads: Lynne Stewart, Esq. and the signature 14 of Lynne F. Stewart, dated May 7, 2001, New York, New York. 15 THE COURT: Let's pause just for a moment so we can 16 both take a stretch break and ask Mr. Fletcher if he wants to 17 make sure that the phone, which appears to be ringing in the 18 robing room, is turned off. 19 (Pause) 20 MS. BAKER: Your Honor, may we have a five-minute 21 break? 22 THE COURT: Certainly. 23 Ladies and gentlemen, we will take a 10-minute break. 24 Please remember my continuing instructions. Please don't talk 25 about the case at all. Please remember to keep an open mind SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6669 4A4MSAT3 1 until you have heard all of the evidence and my instructions on 2 the law. 3 Please follow Mr. Fletcher to the jury room. 4 (Jury not present) 5 THE COURT: You can use this opportunity to go down 6 the next set of documents. I believe you're about on to 13. 7 See you shortly. 8 (Recess) 9 MR. TIGAR: Good morning, your Honor, again. We have 10 discussed with Mr. Dember and we are in accord with one 11 exception. The government intends to publish to the jury by 12 reading a portion of Government Exhibit 2622. That's the 13 immigration hearing. And of course the portion they intend to 14 read will take account of the redaction that your Honor had 15 ordered. They intend to read only a portion of that. I think 16 the first six or seven pages up to the blank page that says the 17 contents of page 7 have been redacted in their entirety. 18 Then, your Honor, pursuant to your Honor's Rule 106 19 determination, they intend to read from Government Exhibit 20 2666, which is a group exhibit consisting of the two rulings of 21 the immigration judge. And it is their intention to publish 22 only the first five pages of that first opinion down to the 23 heading, bomb-making materials. It is our contention that the 24 entire document should be published to the jury, that being the 25 entire 2666. The portion of the 2622 that the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6670 4A4MSAT3 1 intends to publish contains a number of allegations about 2 Sheikh Rahman, about Osama Bin Laden, about dangers and so on. 3 I won't characterize them further, because they can be read. 4 The portion of the opinion that the government does 5 not intend to read includes that the respondent Nassar Ahmed 6 received certain materials in the course of his work in the 7 federal courts. Therefore, it is all right that he has them 8 which is, of course, a relevant consideration. That the 9 respondent said he never heard Sheikh Rahman make any 10 statements supporting retaliation against the United States. 11 That's at page 6 at the bottom of the last full paragraph on 12 that page, that the internal affairs mosque do not implicate 13 any legitimate national security concerns, that if the parties 14 hurl insults at each other, so forth and so on -- that's at 15 page 7 -- not her business. 16 That the Court has received certain classified 17 information in camera and expresses a concern about that 18 classified material. That's at pages 10, 11, and 12. And that 19 the INS was -- at page 13 in the last paragraph asking the 20 Court to advocate its decisional responsibility with a 21 "suggestion of danger. So the opinion taken as a whole, not 22 the second opinion that's in the group, but that opinion taken 23 as a whole is essential to understanding 2622 because it is a 24 decisive review to the overblown and, in the end, at least with 25 respect to that respondent, unsupported allegations that were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6671 4A4MSAT3 1 made. And thus taken as a whole it is a warning to the 2 government in that case and to the person who reads it. That's 3 our view. 4 MR. DEMBER: Your Honor, we are not going to get to 5 this document before the lunch break. If the Court -- we are 6 going to ask the Court to review it. 7 THE COURT: Actually, I did review this document with 8 care in making the completeness finding. And I just note, you 9 can go over it and the parties may want to leave some out. For 10 example, the discussion of classified information which begins 11 at page 10 and which was not part of the document that the 12 government had wanted me to read deals directly with the issue 13 of classified information that the government sought to 14 introduce. 15 And what I had said in the completeness determination 16 was the issue, among others, with respect to the immigration 17 judge's decision, is treatment of the very issues that the 18 government sought to introduce through what was the part of the 19 classified or declassified documents. So if it is being 20 introduced for the purposes of the defendant's state of mind, 21 then the defendants affected by the immigration judge dealt 22 with the very document that the government sought to introduce. 23 So consequently the discussion of the classified 24 information and the discussion of how the judge considered that 25 information and what the judge thought of that very information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6672 4A4MSAT3 1 could certainly be reasonably considered for the defendant's 2 state of mind in considering the document that the government 3 wanted to put in. So it is plain to me that the first six 4 pages would not be sufficient and the parties can discuss what 5 of the remaining document should go in. It is not clear to me 6 that the parties want such issues as bomb-making material which 7 is discussed in the immigration judge's decision and was not 8 discussed, as far as I can recall, in the submission that the 9 government sought to introduce. It is not clear that the 10 defendant wants to raise the issue of bomb-making equipment. 11 So perhaps the parties can discuss a little more completely 12 what they want to introduce from the immigration judge's 13 decision. 14 I have laid out the reasons that the immigration 15 judge's decision would be admissible if the other documents 16 were admissible. And so you both can discuss whether -- with a 17 complete understanding of what I had said what the parties want 18 to do. What I said was, I believe, reasonably clear. There 19 were certain documents that the government sought to introduce 20 which were admissible, subject to limiting instructions. The 21 two immigration judges' decisions were admissible for purposes 22 of completeness for the reasons that I explained and were 23 admissible at the same time if the government was offering 24 those other exhibits. 25 So there you have it. And the question is whether the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6673 4A4MSAT3 1 parties want to agree to reading only portions or redactions of 2 immigration judges' decisions or whether the parties wish to 3 take the position that everything goes in and everything should 4 be read at the same time. 5 Do you follow what I said? 6 MR. DEMBER: I follow what you say, your Honor. It is 7 just the very category you referred to, your Honor, bomb-making 8 materials, and the next one as well, threats against somebody 9 named Sheikh Al-Sharif. They don't seem at all discussed in 10 any of the other materials the government offers into evidence. 11 I certainly understand where your Honor is going. 12 THE COURT: We are ready to bring back the jury. And 13 there is another group of documents as to which there is no 14 dispute. Okay. 15 (Jury present) 16 THE COURT: Mr. Dember. 17 MR. DEMBER: Your Honor, may we display and read for 18 the jury what is in evidence as Government Exhibit 2649? 19 THE COURT: Yes. 20 MR. DEMBER: This is a letter from Lynne F. Stewart, 21 attorney at law, 351 Broadway, Third Floor, New York, New York, 22 dated June 28, 2001. It is sent via fax 507--- 23 THE COURT: It is Government Exhibit 2649 in evidence, 24 right? 25 MR. DEMBER: Correct, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6674 4A4MSAT3 1 It is sent via fax, 507-287-9601. Warden. FMC 2 Rochester, P.O. Box 4600, 2110 Center Street, Rochester 3 Minnesota 55903. RE: Legal visit-Dr. Omar Abdel Rahman, 4 registration No. 34802-054. 5 Dear Warden: I am writing to request a legal visit 6 with my client, Dr. Omar Abdel Rahman, on Friday, July 13 in 7 the afternoon and Saturday, July 14 in the morning. I will be 8 accompanied by interpreter Mohammed Yousry. As you know, my 9 client has not had a visit legal or otherwise for well over a 10 year. 11 I have also signed an attorney's affirmation which the 12 David Kelley, Assistant United States Attorney with the office 13 of the United States Attorney with the Southern District of New 14 York, has in their possession with regard to the agreement 15 reached with them for the purpose of this visit (David Kelley, 16 AUSA, 212-637-1025) 17 Please contact my office immediately if there should 18 be any problem with the above requested legal visit. 19 Very truly yours, Lynne F. Stewart with the signature 20 in the name Lynne F. Stewart. CC to Mary Benning, legal 21 department, FMC Rochester. 22 Your Honor, may we at this time display and read for 23 the jury Government Exhibit 2618, which is in evidence? 24 THE COURT: Yes. 25 MR. DEMBER: It is a letter from the United States SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6675 4A4MSAT3 1 Attorney's Office, Southern District of New York, dated July 2 31, 2001, by Federal Express. Stanley Cohen, Esq., 351 3 Broadway, Third Floor, New York, New York 10013. RE: Dr. Omar 4 Abdel Rahman. 5 Dear Mr. Cohen: On July 23, 2001, the Special 6 Administrative Measures (SAM) for Dr. Omar Abdel Rahman was 7 extended for another 120 days. Enclosed is a copy of Dr. Omar 8 Abdel Rahman's SAM and an affirmation acknowledging receipt of 9 the SAM for your client, Lynne Stewart, Esq., to sign. Please 10 have Ms. Stewart sign the enclosed affirmation and return the 11 original to our office. 12 Very truly yours, Mary Jo White, United States 13 Attorney, Southern District of New York, by David N. Kelly, 14 Assistant United States Attorney, telephone, 212-637-1025, and 15 the signature of David Kelley. 16 Your Honor, may we display for the jury Government 17 Exhibit 2643, which is in evidence? 18 THE COURT: Yes. 19 MR. DEMBER: I will just read the top two lines. 20 Notification of Special Administrative Measures, July 23, 2001. 21 Ms. Griffith, can we scroll down? 22 Your Honor, may we display for the jury and read a 23 portion of Government Exhibit 2647, which is in evidence? 24 THE COURT: Yes. 25 MR. DEMBER: I am going to read from the top. Letter, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6676 4A4MSAT3 1 Lynne F. Stewart, attorney at law, 351 Broadway, Third Floor, 2 New York, New York 10013. The letter is dated October 9, 2001, 3 addressed to David N. Kelly, AUSA, office of the United States 4 Attorney, 1 Saint Andrews Plaza New York, New York 10007. RE: 5 Omar Abdel Rahman. 6 Dear Mr. Kelly: I enclose the signed "attorney's 7 affirmation" with regard to Sheikh Rahman. I assume that upon 8 receipt of this affirmation I will continue to have both 9 visiting and telephone communication with my client. 10 If there is any problem with the above, kindly contact 11 my office immediately. 12 Very truly yours, Lynne Stewart slash -- there are 13 initials there. Lynne F. Stewart. 14 Can we turn to the next page. 15 I am going to read the top three lines. It reads: 16 Attorney's affirmation. Lynne Stewart, pursuant to 28 U.S.C. 17 Section 1746, hereby affirms under the penalties of perjury the 18 truth of the following: 19 Ms. Griffith, will you scroll down this page. And 20 then to the next page, please. Can you scroll to the bottom 21 there. It is at the end, bottom, signed Lynne F. Stewart, 22 Esq., dated October 8, 2001, New York, New York. 23 Your Honor, may we display for the jury Government 24 Exhibit 2646, which is in evidence? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6677 4A4MSAT3 1 MR. DEMBER: I am going to read the cover page to this 2 exhibit. It is a letter dated December 21, 2001, from the 3 United States Attorney's Office, Southern District of New York. 4 Sent by Federal Express addressed to Stanley Cohen, Esq., 351 5 Broadway, Third Floor, New York, New York 10013. RE: Dr. Omar 6 Abdel Rahman. 7 Dear Mr. Cohen: On November 15, 2001, the Special 8 Administrative Measures (SAM) for Dr. Omar Abdel Rahman was 9 extended for one year. Enclosed is a copy of Dr. Omar Abdel 10 Rahman's SAM and an affirmation acknowledging receipt of the 11 SAM for your client, Lynne Stewart, Esq., to sign. Please have 12 Ms. Stewart sign the enclosed affirmation and return the 13 original to our office. 14 Very truly yours, Mary Jo White, United States 15 Attorney, Southern District of New York, by Joseph F. Bianco, 16 Assistant United States Attorney. There are two telephone 17 numbers listed there, and the signature of Joseph F. Bianco. 18 Ms. Griffith, can we turn to the next page. 19 I will just read the first three lines on top which 20 read attorney's affirmation. Lynne Stewart, pursuant to 28 21 U.S.C. Section 1746, hereby affirms under the penalties of 22 perjury the truth of the following. Will you then scroll down, 23 please. That's the second page. Can you scroll down to the 24 bottom of that page, please. 25 At the bottom is the name Lynne Stewart, Esq. and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6678 4A4MSAT3 1 signature of the name Lynne Stewart, dated 1/9/02, New York, 2 New York. 3 And would you turn to the next page, Ms. Griffith and 4 just focus on the top of the page, please. 5 I'll just read the first two lines. They read: 6 Notification of Special Administrative Measures, November 15, 7 2001. 8 Why don't you scroll through the rest of the document, 9 please. 10 Your Honor, at this time I intend to read a series of 11 newspaper articles found at the Stewart search, your Honor. I 12 believe there is an instruction. 13 THE COURT: Ladies and gentlemen, with respect to the 14 exhibits that are going to be introduced which are newspaper 15 articles, these articles are not received for the truth of any 16 of the matters asserted in the articles but solely with respect 17 to the knowledge, intent, and state of mind of Ms. Stewart. 18 MR. DEMBER: At this time may we display and read to 19 the jury Government Exhibit 2625 in evidence? 20 THE COURT: All right. 21 MR. DEMBER: I will start by reading -- there is some 22 handwriting at the top of the exhibit. To the left on top it 23 reads the word Luxor and then Talaat Qassem. Moving further 24 across to the right on the very top the -- it appears to be the 25 word Sheikh. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6679 4A4MSAT3 1 Can we focus in a little bit on the top there, 2 Ms. Griffith. 3 There is the word Sheikh, what looks like maybe the 4 initials of ENR--- I won't even try to read that word. The 5 next word appears to be the word tie with Muj Bosnia, question 6 mark. 7 On the top, below that, the top of the page reads the 8 New York Times International Sunday, September 24, 1995. And 9 the title of the article is Egypt Says Militant/Muslim is 10 Seized in Croatia by Youssef M. Ibrahim, Cairo, September 23. 11 Egyptian officials said today that a senior leader of the 12 militant Muslim organization seeking to overthrow the 13 government here was arrested this month in Croatia. Al-Ahram, 14 Egypt's largest government-owned paper said that the militant, 15 Talat Kassem, was arrested in Zagren, the Croatian capital, on 16 charges that he entered illegally and that he was on his way to 17 Bosnia and Herzegovenia, where hundreds of Islamic militants 18 are suspected of operating training bases. 19 The Egyptian officials, speaking on the condition of 20 anonymity, did not say whether the government would ask for 21 Mr. Kassem's extradition to Egypt, where he has been sentenced 22 to death for organizing several killings and attempting to 23 assassinate army, police, and government officials, as well as 24 several intellectuals and leading secular figures. 25 But in Denmark, Mr. Kassem's wife, Amani Faroukh, told SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6680 4A4MSAT3 1 the London based daily, Al-Hayat, that her husband was arrested 2 a day after his arrival and that his whereabouts was unknown. 3 She said that Mr. Kassem traveled to Croatia on September 12 4 and was on his way to Bosnia to prepare a book on the Bosnian 5 Muslims. She also said the Croatian authorities in Zagren 6 asserted that he was released six days after his arrest and 7 band from entering Croatia for a year. She told Al-Hayat, 8 however, that "this is an illogical and unconvincing answer." 9 Mr. Kassem was granted political asylum in Denmark in 10 1992 and has since emerged as the official spokesman for the 11 Islamic Group. Officials here say Mr. Kassem is a key 12 strategies and financial officer of the organization. 13 The group was implicated in the assassination of 14 president Anwar el-Sadat in 1981 and is suspected of being 15 behind at least two failed attempts to kill President Hosni 16 Mubarek. 17 His arrest proves what we have always said, which is 18 that these terror groups are operating on a worldwide scale, 19 using places like Afghanistan and Bosnia to form their fighters 20 who come back to the Middle East, a senior Egyptian government 21 official said in a briefing today. 22 "European countries like Denmark, Sweden, Switzerland, 23 England and others, which give sanctuary to these terrorists, 24 should now understand it will come back to haunt them where 25 they live." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6681 4A4MSAT3 1 The official said that security officials here were 2 tracking several top leaders of the Islamic Group who are in 3 Denmark, Switzerland, Sudan, and London, and who are suspected 4 of using Bosnia as a training ground for members of the group. 5 "It is exactly the strategy they followed in 6 Afghanistan," the official said. "That is why we have 7 thousands of Arab Afghans running around the region now 8 carrying out terror acts." 9 In London, a group affiliated with the Islamic Group 10 issued a warning by fax to Arab news organizations saying that 11 the action by the Croatian government put it "in direct line 12 for revenge by Islamic Groups," Al-Hayat reported. 13 Your Honor, at this time the government requests 14 permission to display for the jury and read Government Exhibit 15 2630, which is in evidence. 16 THE COURT: All right. 17 Again, ladies and gentlemen, you should apply my 18 continuing instruction to this whole series of exhibits that 19 these are newspaper articles. They are not received for the 20 truth of any of the matters asserted in the article, but solely 21 with respect to the knowledge, intent, and state of mind of 22 Ms. Stewart. 23 MR. DEMBER: Reading towards the top of the page, it 24 says copyright 1995, the Financial Times Limited. Financial 25 Times, November 20, 1995, Monday. And I will skip down two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6682 4A4MSAT3 1 lines to where it says headline: 15 die in blast at embassy in 2 Islamabad. By line: By James Whittington and Farhan Bokhari, 3 date line, Cairo, Islamabad. 4 Body: A suicide car bomber blasted his way into the 5 Egyptian embassy building in Pakistan's capital, Islamabad 6 yesterday, killing 15 people and wounding more than 60. The 7 intensity of the mid-morning explosion shook large parts of the 8 city and caused widespread damage. 9 Egypt's largest Moslem militant group, Gama'a 10 al-Islamiya (Islamic Group) swiftly claimed responsibility for 11 the attack, although a counterclaim later came from its rival, 12 Jihad. Both groups have been waging a terrorist war against 13 the Egyptian government since 1992. 14 Police officials in Islamabad said that the blast was 15 caused by a suicide bomber in a small van packed in explosives. 16 Eyewitnesses said an explosive device was thrown to blow open 17 the metal doors to the embassy compound and the van continued 18 towards the front of the building, where the main bomb was 19 detonated. 20 In a scene reminiscent of the Islamic fundamentalist 21 bombing of the U.S. embassy in Beirut in 1983, the explosion 22 tour a crater about 10 meters wide inside the compound and 23 riped the facade away from the two-story building. 24 Five Egyptians, including two diplomats, seven 25 Pakistanis, an Afghan and the suicide driver of unknown SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6683 4A4MSAT3 1 nationality were confirmed to have died in the blast. 2 Ms. Benazir Bhutto, Pakistan's prime minister, 3 condemned the attack and said her government would do all it 4 could to bring those responsible to justice. Egypt's 5 president, Hosni Mubarak, described the bombing as "an evil 6 crime" and offered full cooperation in the investigation. 7 The blast comes less than a week after a car bomb 8 exploded outside a military installation in Saudi Arabia's 9 capital, Riyadh, killing six, including five U.S. servicemen. 10 Although no one has yet been charged, speculation on who 11 carried out the attack continues to center on Islamist 12 dissidents. 13 The Islamabad bombing is the bloodiest attack on 14 Egyptian government interests since Gama'a al-Islamiya declared 15 war on President Hosni Mubarak's administration. 16 The fact that it took place outside Egypt's borders 17 appears to be part of a change in strategy by frustrated 18 militants. Their campaign to topple the government by force 19 has suffered badly at home as a result of a campaign by the 20 Egyptian security forces to wipe them out of the big cities. 21 By calling on its international network of 22 brothers-in-arms and sympathizers, Gama'a has shifted its 23 attention to relatively soft targets abroad. The Pakistani 24 bombing is the fourth such attack in the past five months. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6684 4a4esat4 1 In June, the group launched its first foray into 2 foreign territory with an ambitious but unsuccessful attempt to 3 kill Mr. Mubarak in the Ethiopian capital, Addis Ababa where he 4 was due to attend the summit of the Organization of African 5 Unity. 6 In October, Gama'a claimed responsibility for a car 7 bomb at the Croatian port of Rijeka following detention by 8 Croat authorities of its spokesman, Mr. Tala'at Fouad Qassem. 9 Last week a diplomat at Egypt's embassy in Switzerland was shot 10 dead at his Geneva home. 11 Your Honor, at this time the government requests 12 permission to display and read Government Exhibit 2623. 13 THE COURT: All right. Subject to the same 14 instruction, ladies and gentlemen, that I just gave you. 15 MR. DEMBER: Focus on the very top of the article. 16 THE COURT: OK, yes. 17 (Government Exhibit 2623 was displayed to the jury) 18 MR. DEMBER: On the very top of the article, it reads, 19 the New York Times International, Monday, November, and then 20 the number 2 and something cut off. 21 Going to the title of the article, it reads, suicide 22 bomber in Pakistan kills 15 at Egypt's embassy. And the 23 article stops, Islamabad, Pakistan, November 19 (AP). 24 A suicide bomber rammed a pickup truck packed with 25 explosives into the gate of the Egyptian embassy in Islamabad SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6685 4a4esat4 1 today killing 15 people and wounding 59 others. Islamic 2 militants claimed responsibility. 3 Most of the dead were Pakistani security guards and 4 people applying for visas. One Egyptian diplomat was also 5 killed, hospital officials said. 6 The attack in the Pakistani capital occurred at about 7 9:30 a.m. when the embassy was in full operation. Sunday is a 8 regular working day in Pakistan, which celebrates the Muslim 9 holy day on Friday. 10 The explosion ripped off one side of the turreted 11 embassy. Survivors said they had heard two explosions. 12 Shortly after the blast an unidentified man called a 13 news agency in Cairo and said, the Islamic Group claimed 14 responsibility. The militant group is blamed by Cairo 15 government for a campaign of violence in Egypt during the last 16 three-and-a-half years to try to replace the secular government 17 with Islamic rule. 18 (Two other groups, Islamic Holy War and the 19 International Justice Group also claimed responsibility, 20 Reuters news service reported.) 21 Pakistan's foreign minister, Sardar Assef Ali, called 22 today's bombing "a dastardly attack." 23 "It was a terrorist attack perpetrated by a suicide 24 bomber who may have blasted his way through the gate and 25 exploded his pickup truck." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6686 4a4esat4 1 Mr. Assef Ali said in a television appearance in 2 recent months Prime Minister Benazir Bhutto of Pakistan has 3 been cooperating with Egypt to locate Egyptian militants who 4 Cairo believes live in Pakistan or neighboring Afghanistan. 5 Many of Cairo's Islamic opponents are veterans of the war in 6 neighboring Afghanistan. Since signing an extradition treaty 7 with Egypt about a year ago, Pakistan has deported several 8 Egyptian nationals from the country, many of whom were believed 9 to be involved in militant Islamic groups trying to overthrow 10 the Egyptian government. 11 After the first explosion today workers from nearby 12 office buildings, banks and other embassies ran outside. Three 13 minutes later a second, much greater explosion sent concrete 14 and shrapnel flying, witnesses said. The blast could be felt 15 several miles away. 16 "I was standing outside the gate and the body of a 17 police officer came flying over the wall and landed beside me," 18 said Mohammed Iqbal, a police officer and security guard for 19 the Egyptian embassy. Mr. Iqbal said he had dropped off 20 ambassador Mohammad Noman Galal at the embassy several minutes 21 before the explosion. Mr. Galal was not hurt. 22 Mr. Iqbal said the first explosion appeared to be 23 outside the embassy compound while the second came from within 24 the walled barrier. The cries of injured workers, some 25 apparently trapped inside, could be heard outside the compound. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6687 4a4esat4 1 A huge chunk of the embassy wall was blasted away and a 2 staircase stood exposed. Outside the embassy building was a 3 hole ten feet deep. 4 Most of the foreign embassies are located in the area 5 of the explosion, including the United States ambassador about 6 six blocks away. 7 And just under the caption of the photograph of the -- 8 on the map -- can you show that to us. Just lower the 9 document -- it reads, Islamic militants took responsibility for 10 the Islamabad attack. 11 And then can we focus on the photograph. And the 12 caption below that reads, after the bombing of Egyptian embassy 13 in Islamabad, Pakistan, rescue workers removed debris as they 14 searched for survivors. 15 Your Honor, shall I start the -- 16 THE COURT: Yes. Yes, please. 17 MR. DEMBER: Your Honor, the next article is 18 Government Exhibit 2624 in evidence. 19 THE COURT: All right. And it's subject to the same 20 limiting instruction, ladies and gentlemen. 21 MR. DEMBER: May we display it for the jury. 22 THE COURT: Yes. 23 (Government Exhibit 2624 was displayed to the jury) 24 MR. DEMBER: Can we focus first on the top portion of 25 the document. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6688 4a4esat4 1 It reads, Islamic militants war on Egypt: Going 2 international. 3 And we'll start reading by Douglas Jehl, and it reads 4 as follows: Kuwait, November 19. Today's bombing in Pakistan 5 serves as the clearest warning yet that Islamic militants may 6 be turning their three-year war against the Egyptian government 7 to the international front. The attack on Egyptian embassy in 8 Islamabad was a single deadliest strike against the Egyptian 9 government target since 1992, when the militant Islamic group 10 began its violent quest to overthrow secular authority in Egypt 11 and impose an Islamic state. 12 With most of the militants' operations in Egypt 13 crushed under a fierce government crackdown, some experts in 14 Cairo today dismissed the choice of a far-off target as a 15 product of desperation. 16 But the attack is the latest in a series that began 17 with the attempted assassination of President Hosni Mubarak in 18 Ethiopia in June. It follows a bombing in Croatia last month 19 and the assassination of an Egyptian diplomat in Geneva last 20 Monday, and it was described by several western officials as a 21 troubling new sign of the militants' ability to carry out 22 operations beyond Egypt's borders. "They're on the run at home 23 and no one knew whether they might pop back up," a western 24 official said. "Now it looks like they have." 25 After two years in which Egypt was rocked by bombings SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6689 4a4esat4 1 and assassinations, that country has been largely quiet for 2 months, with clashes between militants and the authorities 3 limited to territory along a 150-mile stretch of the Nile in 4 the south. Tourists have returned to Egypt in large numbers 5 and the government's authority appears secure. 6 But with Egyptian parliamentary elections now less 7 than two weeks away, the new attacks outside the country appear 8 at least an attempt by the militants to show that they remain a 9 powerful and deadly force. 10 For the West, which has seen Mr. Mubarak assume a 11 central role as an intermediary in the Middle East peace 12 effort, the bombing carries the prospect that the Egyptian 13 leader, who denounced the attack as an "evil crime," may need 14 to turn more attention to security matters. 15 At the same time, the attacks will almost certainly 16 add to the tensions between Egypt and European countries like 17 Britain and Germany, which Mr. Mubarak has sharply criticized 18 for their willingness to grant asylum to Islamic militants. 19 Egypt has said those countries' policies have helped 20 the militants establish wide-ranging networks of operations and 21 support. And Mr. Mubarak warned on a visit to Paris last week 22 that such countries would "one day pay a very high price." 23 In Egypt, the attack comes as Mr. Mubarak and his 24 supporters have put dozens of Muslim leaders on trial in a 25 special military court until now reserved for terrorist SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6690 4a4esat4 1 suspects. None of the defendants are accused of taking part in 2 violent attacks, and the widening crackdown on Islamic 3 activists has widened deep divisions between their supporters 4 and the secular government. Among those who regarded today's 5 attack as a reflection of the militants' weakness was 6 Dr. Mohammed al-Saeed, deputy director of Al-Ahram center for 7 strategic studies in Cairo who called the bombing "desperate 8 terrorism." 9 "Pakistan has always been a haven for militants," 10 Dr. Saeed said in a telephone interview from the Egyptian 11 capital. "This kind of operation does not require such strong 12 organization or technical skill." 13 Other analysts, however, pointed to the fact that the 14 attack took place in Pakistan as a reason for renewed concern. 15 Many Egyptian militants are veterans of the American-backed war 16 by Islamic guerillas in Afghanistan and they are believed to 17 have maintained close links with other veterans who have 18 remained in the region. 19 Since the attack on Mr. Mubarak in Ethiopia for which 20 the Islamic Group claimed responsibility, suspected Egyptian 21 militants have twice attacked targets in Europe. Last month 22 the Islamic Group said it exploded a bomb in the Croatian port 23 of Rijeka to protest the detention there of the group's 24 spokesman, Tala'at Fouad Qassem. And last Monday an Egyptian 25 diplomat was killed in Geneva where a previously unknown group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6691 4a4esat4 1 calling itself the International Justice Group claimed 2 responsibility and threatened to carry out further attacks. 3 Meanwhile, the Egyptian authorities must also now 4 contend with a new flurry of attacks in southern Egypt. 5 Militants have fired on trains carrying tourists three times 6 this month and an Egyptian guard was killed in an incident on 7 Saturday night. 8 THE COURT: All right. Ladies and gentlemen, we'll 9 break now for lunch. Just a word about a scheduling matter. 10 We'll be breaking promptly probably a little before 4:30, today 11 and tomorrow we'll be -- we will not sit after 4:00. 12 We'll break now for lunch. Please remember my 13 continuing instructions. Please, don't talk about this case at 14 all. And always remember to keep an open mind until you've 15 heard all of the evidence, I've instructed you on the law and 16 you've gone to the jury room to begin your deliberations. 17 Fairness and justice for all the parties requires that you do 18 that. 19 With that, have a very good lunch, and I look forward 20 to seeing you about 2:15 or so. 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6692 4a4esat4 1 (In open court; jury not present) 2 THE COURT: I don't like keeping you from your lunch, 3 but I said I would take up the issue of the document relating 4 to Mr. Fitzgerald, right? 5 MR. TIGAR: Yes, your Honor. We sent the Court a 6 letter and then cited some cases. 7 The concern we have is, and the reason we ask for the 8 relief we ask for, a mistrial, with alternative respect to 9 testimony, is that this document raises what we regard as a 10 very serious issue. 11 Mr. Fitzgerald has appeared twice before your Honor. 12 The first time he appeared was at the hearing in September of 13 2003 concerning the motion with respect to our claim about 14 bargain. And at that time, your Honor, a number of documents 15 were produced about which there was a dispute, including a 16 document relating to a June 2000 meeting, if I recall the 17 facts, that Mr. Fitzgerald had with the agents of the FBI who 18 informed him that there was an intelligence investigation 19 ongoing and that the investigation had begun in February of 20 2000, or at least the FISA recordings had begun. 21 Then he testified before this jury and there were 22 motions and there was litigation about limiting instructions 23 with respect to his memorandum. Mr. Fitzgerald appeared and 24 was introduced to us as a man who is now the United States 25 Attorney for the Northern District of Illinois; who held a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6693 4a4esat4 1 responsible position in the Justice Department with respect to 2 another investigation, which was why he could not appear timely 3 for cross-examination. He had been a -- I don't know that the 4 jury knew why he couldn't appear, simply that he didn't, and 5 that he did have some other obligation. And he was a person 6 who testified about his experiences with Sheikh Omar Abdel 7 Rahman's case. 8 Now we find in the government's production a 9 memorandum that apparently he drafted for Janet Reno's 10 signatures. It's clearly a draft because it does not contain a 11 date. I'm trying to find here the government's letter and its 12 attachment. But this was to be apparently a communication 13 from -- here it is, Janet Reno to Kathleen Hawk. And since 14 it's identified as Mr. Fitzgerald's memorandum, it's something 15 that he drafted with that purpose in mind. 16 We've asked a number of questions about it, such as 17 where and when it was found, all of which are relevant 18 inquiries under the Ahrend case, but the part that gets our 19 attention is that he wants Janet Reno to order that all legal 20 mail is to be opened and all legal calls to be recorded, and 21 that he does this under the authority of the 28 CFR Section 501 22 SAMs regulations; that is to say, without a warrant, without 23 any intervention of a judicial officer in any form under FISA 24 or otherwise. If your Honor believes that, based on the Felton 25 Miller cases, that's a felony. He's proposing people commit a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6694 4a4esat4 1 felony. And that surely relates to his credibility and would 2 have been relevant inquiry. 3 And the reason we take this seriously, your Honor, is 4 that everybody here in this room, inside this wall, remembers 5 the Felton Miller cases and remembers how difficult it was to 6 get those indictments; that the Assistant Attorney General 7 Pottinger had the raid made, then there was a year of 8 litigation over classified information that eventually led to 9 CIPA. 10 There was a trial in front of Judge Brieant. They 11 were convicted in 1980, and then on March 27, 1981, newly 12 inaugurated President Reagan pardoned them, and in his pardon 13 message, said he was doing it because they were men of 14 principle who were, after all, fighting terrorism. That 15 reference or the quotation from the pardon message is in a lot 16 of sources. I think it's in 27 Fordham Urban Law Journal 1483, 17 and I don't remember the jump page. 18 But in short, your Honor, we take it seriously because 19 this kind of behavior -- this kind of proposal does go on. And 20 it's recidivist in character; that is, the Executive Branch has 21 to take it seriously. That's the basis of my concern as an 22 advocate. 23 This is a man who was second chair in the Sheikh's 24 case, who in 1998, while the litigation on direct appeal is 25 still pending, writes a memo to propose that a felony be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6695 4a4esat4 1 committed with his adversary, Lynne Stewart, as a victim of it. 2 And I'm prepared to discuss the legal basis for that contention 3 that I've made, which I understand is bold, but that's what we 4 see the memo as. It is not duplicative. 5 Now, why should we ask for this relief? Because it's 6 clear to me that Mr. Fitzgerald is a tough witness. I stood up 7 to cross-examine him and I knew that every time I 8 cross-examined, I would have to take a substantial risk that 9 I'd get one of those run-on answers that reflected his ongoing 10 view about what Sheikh Abdel Rahman did. And there was 11 volunteering. There was this and that, the sort of thing that 12 happens in that sort of exchange. 13 Well, in a cross-examination, I'll take that risk. 14 I'll take that risk with a witness like Mr. Fitzgerald because 15 I know that I can score some cross-examination points. Calling 16 him back now, just in an effort to open this up, doesn't do it 17 for me, your Honor, because now I have to go for the 18 credibility point on its own with a witness who's all prepped. 19 And the dynamic of the cross is just different. I can't prove 20 that or cite authority for it, but I do suggest that that's 21 what the Jencks Act is about. 22 And maybe there's an excuse here, but it surely can't 23 arise unless we have some inquiry as to where and when and who 24 and what and what else was there and what was done, if 25 anything, with respect to this proposal and who received it and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6696 4a4esat4 1 so on. That's just for the Jencks inquiry. 2 And so that's the basis for our immediate application, 3 which is either -- that one of those two remedies be chosen by 4 your Honor. And I would respectfully suggest that unless the 5 mistrial remedy is chosen, that we would then need some inquiry 6 to find out details so the choice could be made. 7 I've read, of course, your Honor's careful opinion of 8 last evening, which is law of the case with respect to Jencks 9 matters. I take it as a given. I suggest to your Honor that a 10 credibility issue of this kind with respect to a major witness 11 is important and that this document is important within the 12 ambit of the Jencks Act interpretation that your Honor has put 13 out there for all of us to follow. 14 THE COURT: All right. Mr. Morvillo. 15 MR. MORVILLO: Thank you, your Honor. 16 Obviously the government opposes the motion by the 17 defense for a mistrial and to strike the testimony of 18 Mr. Fitzgerald. The only relief, if any, would be for 19 Mr. Fitzgerald to be recalled. And I submit that there isn't 20 even a basis to do that at this point. 21 The premise of the request -- of the motion is that 22 there is a credibility issue revealed by this 3500 material 23 that was not disclosed prior to Mr. Fitzgerald's testimony. 24 Mr. Tigar characterizes his allegation that there is a 25 credibility issue as Mr. Fitzgerald condoning, soliciting a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6697 4a4esat4 1 felony. And he characterizes that, Mr. Tigar, as a bold 2 characterization. I submit that that characterization is 3 completely inaccurate. It's just not true. 4 In fact, the 3500 material that was disclosed prior to 5 Mr. Fitzgerald's testimony reveals exactly the same information 6 that is contained in this 3500 material. For instance, I don't 7 know if the Court has Mr. Fitzgerald's 3500 material here. I 8 could go to the Elmo and display it to the Court as I read a 9 quote to you from it. 10 THE COURT: All right. I'm not -- I don't know if 11 I'll need it. 12 MR. MORVILLO: May I go to the Elmo, your Honor. 13 THE COURT: Sure. 14 MR. MORVILLO: Your Honor, to place in context this 15 memo, which is a memo dated March of 1998, there were two other 16 documents that were disclosed to defense. The first is 17 Government Exhibit or 3500 material, 3516DD. 3516DD, as the 18 Court may recall, is the November 5, 1997, Kathleen Hawk memo, 19 the last page of which I'm now placing on the Elmo, containing 20 Mr. Fitzgerald's handwritten notes. 21 As the Court may recall, there was testimony about 22 these notes during the course of Mr. Fitzgerald's testimony and 23 when Mr. Fitzgerald was on the stand. And he testified that he 24 wrote these notes during a meeting at which Sheikh Abdel 25 Rahman's prison conditions were being discussed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6698 4a4esat4 1 Among the considerations was false information about 2 Sheikh Abdel Rahman's health conditions coming out of prison 3 through perhaps attorney visits or attorney telephone calls. 4 One of the recommendations he made, and he notes it on this 5 memo, was, number one, monitoring legal calls. Mr. Fitzgerald 6 testified at this trial that that was his recommendation at the 7 time, his thought, a suggestion that he made. 8 Fast-forward to May of 1998, Government Exhibit 3516W, 9 which is a draft of a notification of Special Administrative 10 Measures that Mr. Fitzgerald testified he sent to the office of 11 enforcement operations in Washington. It contains on page two, 12 Mike, this is new, in brackets. This is a new proposal for 13 attorney call recording and monitoring. 14 And I will read it: The inmate and his attorney shall 15 be advised that the government reserves the right to monitor 16 legal calls without any further prior notice to the inmate or 17 his attorneys and without the necessity of a court order should 18 the government determine that it has reasonable suspicion to 19 believe that the attorney calls are being used to violate the 20 SAM or otherwise to transmit messages to outside parties which 21 may result in a danger to public safety or national security. 22 The government also reserves the right to record legal 23 calls without monitoring, without any further prior notice or 24 court order if it determines that such recordings will be 25 useful in helping to preserve the ability to review the legal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6699 4a4esat4 1 calls in the event it later learns that the attorney calls were 2 being used to violate the SAM or otherwise transmit messages to 3 outside parties, which could result in danger to public safety 4 or national security. 5 The memo that's at issue here, your Honor, and the 6 defense arguments focus on the modifications that 7 Mr. Fitzgerald was proposing in March of 1998, two months prior 8 to the draft Special Administrative Measures that I just read 9 to the Court. And let me read these modifications into the 10 record. 11 Mr. Fitzgerald's proposal is as follows: All legal 12 mail from inmates should be opened to ensure that there are no 13 third-party envelopes contained inside. The contents of the 14 inmate's incoming and outgoing legal mail should be copied (or 15 if an audio tape is involved, electronically copied) and kept 16 securely in a file with its contents not disclosed to law 17 enforcement absent the express approval of the Attorney General 18 or her designate. All legal calls should be recorded in full 19 and preserved permanently in secure storage. The tapes and 20 their contents shall not be disclosed to law enforcement absent 21 the express approval of the Attorney General or her designate. 22 If in the future law enforcement officials develop reason to 23 believe that legal mail or legal calls may have been used to 24 carry messages in violation of these procedures or otherwise 25 applicable law, then such officials shall seek the performance SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6700 4a4esat4 1 of the Attorney General or her designate for appropriate person 2 or persons to review such communications to determine whether 3 the special conditions or other applicable law has been 4 violated. An appropriate wall mechanism will be instituted if 5 this procedure is ever invoked to ensure that no information is 6 shared inappropriately with any law enforcement personnel 7 involved in the conduct of any litigation with inmate Abdel 8 Rahman. 9 The information contained in the previously disclosed 10 3500 material is largely duplicative of that information. 11 Mr. Fitzgerald testified at length on cross-examination from 12 Mr. Stern and from Mr. Tigar and often redirect examination 13 about these proposals, your Honor. 14 I would direct the Court's attention to the transcript 15 citation, page 2582 through 2585, which is the 16 cross-examination of Mr. Stern; 2612 through 2615, which is the 17 cross-examination of Mr. Tigar; and 2657 through 2662, which is 18 the redirect examination. 19 If the Court likes, I can read back some of that 20 testimony at this point, but it clearly speaks for itself. 21 I will put one attribution from the cross-examination 22 of by Mr. Tigar. 23 "Q. Did you ever --" and I will put this on the 24 screen. I'm reading. "Did you ever put in place a device for 25 recording attorney telephone calls made by Sheikh Omar Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6701 4a4esat4 1 Rahman from the prison? 2 "A. No. I think at that meeting or related to that 3 meeting --" and, again, this is a reference to the 4 November 1997 memo with Mr. Fitzgerald's handwritten notes. 5 "I discussed that as something we should think about, 6 and I think I even proposed it in the next modification of the 7 SAMs, but it wasn't put in place." 8 The next modification of the SAMs, your Honor, is the 9 modification I just read, which is 3500, 3516W. 10 "Q. You proposed it? 11 "A. Yes. 12 "Q. And who would have had the authority within the 13 Reno Justice Department to act on that proposal? 14 "A. Well, the ultimate authority would have to be 15 the Attorney General Reno. And the exact proposal is written 16 in a document, I think, from May of 1998, but it would have 17 notified the attorneys that your calls will be recorded and 18 that if there is reasonable suspicion to believe that something 19 had been abused on the tapes, they might be reviewed without 20 further notice to you. I wrote that into a proposed SAM 21 modification, and I wrote a note in the box to the person 22 reviewing it in Washington that I didn't want this to be 23 approved without someone paying attention to it. You don't 24 hand someone a 12-page document, stick in a paragraph and have 25 them renew it, thinking it is the same as the last time. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6702 4a4esat4 1 when it came back, it wasn't in there. 2 "Q. The paragraph wasn't there? 3 "A. Correct. 4 "Q. So somebody up the line said, let's don't do it 5 that way, right? 6 "A. Correct." 7 Your Honor, the information contained in this document 8 that was produced last week is the same information that was 9 available to the defense prior to Mr. Fitzgerald's testimony. 10 They chose not to attack his credibility as soliciting 11 felonious conduct. Instead, they cross-examined him about his 12 requests or his proposal to record the calls. There is nothing 13 new in this memo and their motion should be denied without 14 further consideration. 15 THE COURT: The document that was produced, does that 16 include the cover memo? 17 MR. MORVILLO: Which document are you referring to, 18 your Honor? 19 THE COURT: There is a -- 20 MR. MORVILLO: Are you speaking to the document that 21 came on Friday, your Honor? 22 THE COURT: Your letter is October 1, and you gave me 23 the redacted copy which begins, to Kathleen Hawk from Janet 24 Reno, right? 25 MR. MORVILLO: There was a cover memo that went with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6703 4a4esat4 1 that. 2 THE COURT: Right. And that's been produced? 3 MR. MORVILLO: I assume it has. I ask that it be 4 produced. 5 MR. TIGAR: No. 6 MR. MORVILLO: Your Honor, we have no objection to 7 that being produced. It was just a mistake for it not to have 8 been turned over. It's part of the same document. And there 9 are no redactions on that page. I don't know if I have another 10 copy here in court. In fact, my copy of the letter which has 11 the attachment does not have a cover memo. 12 But my recollection is that it's a cover memo from Pat 13 Fitzgerald to Michael Brave at the OEO transmitting the 14 proposed SAMs modifications. 15 MR. TIGAR: I have a six-page fax from Mr. Morvillo. 16 There is no cover letter as it printed out on the fax machine. 17 I responded to the Court based on what I had. 18 THE COURT: It doesn't change anything. Mr. Morvillo 19 should turn it over. 20 The reason I asked the question is I was determining 21 what I was being asked to look at in terms of redactions. And 22 over lunch you can provide the additional page. It literally 23 is a -- 24 MR. TIGAR: It may answer some of the questions that 25 we posed in our letter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6704 4a4esat4 1 In response to Mr. Morvillo, of course I knew about 2 the two documents to which he referred. Let me take them in 3 order. 4 The first one is the handwritten notes. And, counsel, 5 my recollection is somewhat different. Mr. Fitzgerald is not 6 sure whether he went to that meeting or not. He said he 7 certainly heard about it, and maybe he went, maybe he didn't, 8 but that he did make these notes. 9 MR. MORVILLO: My recollection of his testimony is 10 that he stated that he was either there or participating over 11 the phone, but he participated. 12 MR. TIGAR: Well, the notes he made were included a 13 subpoena of Ramsey Clark's call records as well as this 14 monitoring, and I must say I read that and interpreted it. If 15 the government wants to monitor legal calls, he knows how to do 16 it. He goes to a judge and gets a warrant and so on. 17 So there's nothing in there that alerts us to that, 18 nothing in there that alerts us that he proposed by those 19 handwritten things to have the idea he was going to engage in 20 warrantless or unauthorized-by-subpoena intrusion of anybody's 21 rights. 22 Now, the second document he says he proposes and he 23 flags that for Mr. So-and-so. I presume, based on that, my 24 assumption was it's very clear that if he did that, he was 25 going to inform lawyers that he was doing it. He was going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6705 4a4esat4 1 say to lawyers, that's the way I interpreted it; that if you 2 come into the prison, we reserve the right to conduct this form 3 of search. And then the lawyer would have the opportunity to 4 say, well, I won't come into the prison or I'll dispute with 5 you before I do, but it would be advanced notification. 6 I don't read, although it would be one permissible 7 reading, this document as saying that they're going to notify 8 the lawyers. It could be, maybe, but what he means by 9 modification would be a modification that we would notify the 10 lawyers as a part of a SAM. But the other permissible reading, 11 and the one that I adopt and suggest is reasonable here, is 12 that all legal mail is going to be opened and all legal calls 13 are going to be recorded. And there's nothing in here that 14 expressly says we're going to tell the lawyers about it. 15 If Mr. Fitzgerald says, well, we were going to tell 16 the lawyers about it and give them an option, then it's a 17 different story. He's just proposing to do something 18 unconstitutional. But if he's not going to tell the lawyers 19 about it, then it is a violation of the Constitution. It's as 20 simple as that. 21 And the fact that they're going to keep it all secret, 22 by the way, that doesn't affect the legality of the -- of what 23 they're doing. I take it there's no contention that the fact 24 that they weren't going to open it until the Attorney General 25 said so doesn't affect the legality of any proposal doing that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6706 4a4esat4 1 THE COURT: The disposition of the application is 2 clear for me. First, the additional cover page should be 3 turned over. 4 Mr. Brave was an assistant to? 5 MR. MORVILLO: I believe he worked out of the Office 6 of Enforcement Operations down in Washington, which is the 7 Department of Justice office that handles the Special 8 Administrative Measures. 9 THE COURT: All right. Turn over, turn over the cover 10 memo. 11 I've reviewed the redactions to the confidential 12 memorandum, and the redactions relate to other inmates. And 13 indeed, the other inmates are identified in the memo itself, 14 which is turned over. 15 The application for a mistrial or to strike the 16 testimony is denied. The memo, it's undisputed, is additional 17 3500 material. It does not add in any material fashion to the 18 impeachment material for Mr. Fitzgerald. That he was proposing 19 a modification to the SAMs is clear from the record already. 20 That he was highlighting it for people in Washington to focus 21 on what it was that he was suggesting is clear from the record. 22 That does not suggest that he was doing something that was 23 unconstitutional or unlawful. He made a suggestion and he made 24 the specific request that people in Washington focus on the 25 suggestion that he was making. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6707 4a4esat4 1 Now, it is additional 3500 material. It is not 2 reasonably material that could make a difference, but the cases 3 also indicate that it's not for the Court to determine the 4 significance of impeachment material. 5 And, therefore, if the defendants wish to have 6 Mr. Fitzgerald recalled to examine him with respect to this 7 additional memo, he can be recalled to examine him with respect 8 to this additional memo. 9 MR. TIGAR: Your Honor, I committed a rudeness by 10 conferring with counsel while your Honor was speaking. But 11 what I did confirm is that in light of your Honor's ruling, we 12 will confer, counsel will confer among themselves and announce 13 a position to the Court. 14 The one matter that is not resolved by your Honor's 15 ruling, or perhaps it is but I didn't understand it to be, I 16 don't know where this filing room is to which Mr. Morvillo 17 refers or what was there. It is surprising to me, in light of 18 Mr. Fitzgerald's position in the office and the importance 19 attached to his various appearances and the extraordinary let 20 us say variety or amount of documentation, that this document 21 could have escaped notice. 22 And, therefore, I request that the Court require the 23 government to make an accounting of the kind that we've asked 24 for: Where and when and who? Because all we have now is 25 recently in a file room. Because we respectfully suggest that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6708 4a4esat4 1 they have not accounted for the kind of search they would make. 2 Now, ordinarily, when a party says I've done it and 3 this is it, then we all accept the representation. And I'm not 4 putting this on Mr. Morvillo. There appears to have been some 5 breakdown in the file production system, and that's why we 6 request that the questions we had posed be posed to the 7 government and that they be asked to make a response to it. 8 THE COURT: Mr. Morvillo? 9 MR. MORVILLO: Your Honor, I have no problem telling 10 the Court and counsel the events that led to disclosure of this 11 document, although I really don't think it's relevant to any 12 issue that's open at this point. There's no allegation of bad 13 faith, as far as I understand. 14 The document was in another office of the US 15 attorney's office that contained an excessive amount of files 16 that Mr. Fitzgerald, among many, many other attorneys, had 17 access to. It was recently cleaned out during renovations. 18 There were many stacks of documents that were removed from that 19 office. This document was found among those other stacks that 20 have absolutely nothing to do with this case. 21 That happened in late August, I believe. It came to 22 my attention at about that time. I had some communications of 23 the ensuing time period with Mr. Fitzgerald as to whether, in 24 fact, this was 3500 material. He believed that it is his 25 document, and thus I turned it over. And that really is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6709 4a4esat4 1 everything that I know about this document at this point, your 2 Honor. 3 MR. TIGAR: It's October. Your Honor, here it is at 4 the end of the government's case. A decision as to whether to 5 recall Mr. Fitzgerald, which the Court's decision says we would 6 have a right to do, made now is very different in context and 7 in terms of where we are in the trial than it would be if the 8 government had come to the Court and said, we have this. There 9 can't be an awful lot of doubt, if I understand that this 10 transmittal memo contains what I understand it does -- I 11 haven't seen it yet -- but these were Mr. Fitzgerald. 12 I respectfully suggest that some sanction is 13 appropriate for the delay because we can disagree; I guess 14 there is a disagreement about the impeachment value. Well, if 15 there is a disagreement about it, then we're entitled to have 16 the document. And I will confer with counsel over lunch, but I 17 respectfully suggest that some sanction is appropriate. 18 THE COURT: When this first came to your attention, 19 Mr. Morvillo, was Mr. Fitzgerald's testimony completed? 20 MR. MORVILLO: Oh, absolutely, your Honor. 21 THE COURT: When was his testimony completed? 22 MR. MORVILLO: Mr. Fitzgerald testified on June 23rd 23 and June 26th. It was more than two months later, I think, 24 that I first learned about this. And as I said, and as the 25 Court is probably aware, Mr. Fitzgerald is an extremely busy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6710 4a4esat4 1 person. It took me a while to communicate with him about this 2 document. 3 THE COURT: All right. There's no sanction warranted 4 for the delay between late August and today, but if the 5 defendants say that they want for some reason more time to do 6 something, I'll listen to that. But there is no conceivable 7 impact that I see from the delay between late August and today, 8 but as I say, if for some reason the defendants want more time 9 for something, they should advise me of that. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6711 4A4MSAT5 1 MR. TIGAR: Your Honor, we will confer. The question 2 of impact, I respectfully disagree with the Court. In the 3 dynamic of trial, in my view, it is all about context. And the 4 risks that we would have taken, that I would have taken that I 5 would have recommended about recalling Mr. Fitzgerald in order 6 to explore my disagreement with counsel about what this means 7 are very, very different now as we are winding down to the 8 end -- at the end of the case. In the dynamic of trial I 9 sometimes am willing to take more risks if I have got some 10 upside thing that I think is coming. That's just the way it 11 is. I can't prove that, but I'm saying I do respectfully 12 disagree with your Honor about the dynamic. 13 MS. SHELLOW-LAVINE: Your Honor, before we break for 14 lunch, as an administrative matter, I noted this morning that 15 some of the exhibits that Mr. Dember started to read, starting 16 with the newspaper articles, had never been moved into evidence 17 in front of the jury. You had ruled on our objections, but an 18 offer and ruling on them was not made with respect to any of 19 the exhibits to which we object to. 20 MR. DEMBER: Your Honor, Ms. Baker pointed out to me 21 earlier a few minutes ago that the last four exhibits, which 22 are first four of the newspaper articles, had not been formally 23 admitted into evidence before the jury. You ruled they were 24 in, obviously, but because of all the other exhibits, I lost 25 track of the fact that they had not actually been moved into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6712 4A4MSAT5 1 the evidence before the jury. And I can certainly -- certainly 2 the remainder of those that have not been formally admitted in 3 front of the jury, I will do that when we start again after 4 lunch. Ms. Shellow-Lavine is correct. 5 THE COURT: You should do it. If the parties want me 6 to, to have the last four exhibits moved before the jury with 7 the limiting instructions that I have given, the government 8 should do that first thing after lunch, together with any other 9 documents that are coming that are subject to the same limiting 10 instruction. 11 MR. DEMBER: I will do that. 12 MR. MORVILLO: Your Honor, the same issue exists with 13 respect to the Yousry search materials. They were all -- there 14 was a stipulation that I read to the jury which stated, among 15 other things, that all of the exhibits in a particular series 16 could be received into evidence. I have not provided the Court 17 in front of the jury, given a detailed list of each exhibit. I 18 was planning to move them into evidence as I publish them, but 19 I can certainly do it in one long recitation when we come back 20 from the lunch break, if that would be the Court's preference. 21 THE COURT: You should move them into evidence. 22 That's why I asked before an exhibit is read to the jury to 23 tell me that it is an exhibit in evidence. And so when you say 24 you were going to offer them individually, the last several 25 exhibits were simply said that they were in evidence and not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6713 4A4MSAT5 1 moved in evidence before the jury. So you should move them 2 into evidence. I don't know if they are subject to any 3 limiting instructions or not. 4 MR. MORVILLO: They are not all offered against all 5 defendants. And so I can provide the Court with a chart that I 6 have previously given to the Court and the parties that 7 specifies precisely against whom the exhibits are being 8 offered. 9 THE COURT: Why don't you discuss it with the 10 defendants to see how they wish to handle that, as to whether 11 the exhibits should be offered subject to limiting instructions 12 and the limiting instructions given at the time that the 13 exhibits are moved into evidence, or when they are actually 14 read to the jury. 15 MR. TIGAR: Your Honor, Ms. Baker was going to report 16 on Mr. Elliot's availability. 17 MS. BAKER: Your Honor, I am continuing to have 18 conversations with Mr. Elliot and he understands that he is 19 expected to be here on Tuesday. And absent some additional 20 application to the Court for some relief in that regard, he 21 will be here on Tuesday. I have had several conversations with 22 him already and I will be continuing to do that over the lunch 23 hour. 24 THE COURT: You still have things to do over the lunch 25 hour. Why don't you be back at quarter of two. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6714 4A4MSAT5 1 MR. TIGAR: Your Honor, it is quarter of 2. 2 THE COURT: Quarter after 2. 3 MR. PAUL: Your Honor, can we have to 2:30? 4 THE COURT: Sure. 2:30. 5 (Luncheon recess) 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6715 4a4esat6 1 AFTERNOON SESSION 2 2:40 p.m. 3 (In open court; jury not present) 4 THE COURT: OK. I wanted to mention to you that 5 earlier this morning one of the jurors as they walk up the 6 steps passed a pleasantry to another juror. And I think I've 7 instructed the jurors about not talking at all; I don't know if 8 anything else is necessary. 9 OK. Anything else before we start? 10 MR. MORVILLO: Your Honor, I just wanted to say that 11 we've just handed counsel the cover memo of the piece of 3500 12 material we discussed prior to the break. 13 THE COURT: All right. 14 MR. TIGAR: We have not been able to reach an 15 agreement on the 106 issues, your Honor. And I can go through 16 the particular items here, but since the Court has reviewed it 17 carefully and with regard 106, I'm at the Court's disposal as 18 to whether we should argue why we think it all should be read, 19 which is what we think, or single out particular parts or 20 whatever. 21 Your Honor referred to the bomb-making materials. 22 I've reread that very carefully, and I -- we do think that's 23 very relevant in a sense that it points in what I would call an 24 exculpatory direction, in the broad meaning of that term, 25 because of the context of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6716 4a4esat6 1 THE COURT: I'm perfectly prepared to have the entire 2 document read. 3 The substance of the decision on 106 was that the 4 government wanted to put in documents in a particular 5 classified submission. The immigration judge ultimately 6 rejected those submissions and concluded that they were 7 insufficient and had negative comments about various parts of 8 that submission, in particular the classified submission. And 9 the ultimate conclusion of the immigration judge was that the 10 materials submitted were insufficient. 11 So the state of the record is that both documents are 12 being submitted -- all the documents are being submitted for 13 the effect on the defendant's state of mind. So the 14 immigration judge's treatment of the matters before the 15 immigration judge goes to the defendant's state of mind as to 16 the degree of weight that the defendant would put on the 17 materials that were submitted by the government for her state 18 of mind. 19 And the reason that I raise some of those other issues 20 was there is plainly some negative information with respect 21 specifically to Nasser Ahmed. And one wonders why the 22 defendant asserts that some of those materials are really 23 useful to a -- to the defendant's position with respect to the 24 defendant's state of mind, but they're part of the ultimate 25 decision by the immigration judge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6717 4a4esat6 1 MR. TIGAR: Your Honor, I appreciate the Court's 2 observations about that, and we have reviewed it. We're not 3 afraid of the truth. The whole decision is what the judge did. 4 He had some good things in it, he had some not good things in 5 it. And we thought that, let's put it all out there, and at 6 the end of the day the jury will have a look at it. 7 THE COURT: Everything else resolved? 8 MR. MORVILLO: Your Honor, I spoke with counsel or 9 Mr. Ruhnke, who I believe is speaking on behalf of all counsel 10 with respect to the publication of the Yousry search materials, 11 and it would be I think the preference of both parties, instead 12 of reading a very long list of exhibits, to, as we turn to 13 publish each one, prior to doing that offer and then request 14 permission to publish. 15 THE COURT: Fine. Do you have a list of the limiting 16 instructions that you want me to give with respect to the 17 individual exhibits, or do the parties -- an alternative would 18 be to say that the parties agree that the documents are subject 19 to the following limiting instructions for each document as it 20 comes in. And I'll say the document's admitted subject to a 21 limiting instruction. 22 MR. RUHNKE: Your Honor, as far as Mr. Yousry is 23 concerned, a large portion of the documents coming in are 24 newspaper articles. And we'd ask that your Honor give the 25 newspaper article instruction. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6718 4a4esat6 1 THE COURT: Fine. 2 MR. RUHNKE: And I believe virtually all of the 3 documents are admissible on Mr. Yousry's state of mind, 4 knowledge and intent and not for the truth. I don't know if 5 there are exceptions to that, but I believe they're all limited 6 to Mr. Yousry as to knowledge, intent and state of mind. 7 THE COURT: I'll say when the documents are admitted, 8 unless there is an exception, I'll say all of these documents 9 are admitted not for the truth of any of the matters asserted 10 but solely with respect to Mr. Yousry's knowledge, intent and 11 state of mind. 12 Is that all the exhibits? 13 MR. MORVILLO: No, your Honor. Many of the documents 14 are offered against all defendants. Some of the documents are 15 offered against Mr. Yousry and Ms. Stewart. Some are offered 16 against Mr. Yousry and Mr. Sattar. And so a broad instruction 17 like that would -- 18 THE COURT: Do you have a list that the parties have 19 agreed on that I should use when the individual documents are 20 admitted? 21 MR. MORVILLO: I don't think we're going to be getting 22 to it today -- 23 MR. RUHNKE: That was part of the discussion. We 24 didn't think they would actually be getting to the search 25 documents today. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6719 4a4esat6 1 MR. MORVILLO: And to the extent that it looks like we 2 might, I will at the break this afternoon, if there's going to 3 be one, advise the Court as to at least the first couple of 4 documents. 5 THE COURT: Fine. So you're going to begin by 6 offering the four documents that were read this morning but had 7 not been formally moved in evidence? 8 MR. DEMBER: Yes, your Honor. Then right after I do 9 that, I will offer the remainder of the documents that have not 10 been formally admitted into evidence before the jury, and then 11 I'll proceed to -- 12 THE COURT: All of those documents get the same 13 limiting instruction? 14 MR. DEMBER: Your Honor, if I may have a moment, most 15 of them are other newspaper articles, which includes 16 declassified documents, the Court decision. I believe all of 17 them -- yes, your Honor, all remaining except for one, which is 18 the -- Ms. Stewart's notebook, which is -- all the remainder of 19 the exhibits are subject to that instruction. 20 I would just note, your Honor, for the notebook which 21 is Ms. Stewart's, there is a lot of writing in there from the 22 July 2001 visit where Ms. Stewart takes notes of Abdel Rahman's 23 complaints, as he referred to them, his suffering. To the 24 extent that those are his statements, which they certainly 25 appear to be, we would ask the Court to instruct the jury that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6720 4a4esat6 1 those aren't being offered for the truth of the matters 2 asserted because they are Ms. Stewart's writing down what Abdel 3 Rahman is complaining to her about. 4 And as your Honor may recall, when we introduced the 5 portion of the July 2001 visit, there was an agreement among 6 the parties that any complaints or -- by Abdel Rahman about his 7 conditions of confinement, his health, were not being offered 8 for the truth, same truth applied to the notebook as well. 9 MR. TIGAR: May I have a moment just to review -- this 10 is most peculiar, your Honor, this request. 11 Ms. Stewart is their opponent. And her -- as 12 statements of a party opponent, the hearsay rule, Rule 801, 13 says they come in regardless of any personal knowledge 14 requirement. On what other basis would they introduce them, 15 other than as prior statements? If they're not offered for 16 their truth, your Honor, then they're not admissible. This is 17 the first time I've heard this argument, but if we parse 801, I 18 don't think they can get in if they're not offered for the 19 truth. 20 THE COURT: No, but it would be -- the question is 21 there's a possibility of hearsay within hearsay. It's a 22 statement by Ms. Stewart that Omar Abdel Rahman said something. 23 It's admitted for the truth that Omar Abdel Rahman said 24 something but not for the truth of what Omar Abdel Rahman said. 25 MR. TIGAR: But he's also a member of the conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6721 4a4esat6 1 THE COURT: But the government doesn't have to admit 2 that has -- for the truth. They can, but a -- 3 MR. TIGAR: Your Honor, in that case the difficulty is 4 if the government chooses to offer this statement but not for 5 its truth, then that must be because there's a problem about 6 whether it's true or not. So let's produce the witness and I 7 can cross-examine him. 8 Rule 801 -- excuse me, your Honor. I don't need 9 laughter from the government's table, which we just heard when 10 I -- 11 THE COURT: Absolutely. I didn't hear it, Mr. Tigar, 12 but -- 13 MR. TIGAR: The witness is percipient; I've spoken to 14 his lawyer four days ago. He talks to people. 15 Rule 801 gives the government, we respectfully submit, 16 two options: Offer it for the truth of the matter asserted or 17 call the witness. 18 MR. DEMBER: Your Honor, this is yet another exhibit 19 or piece of evidence that was -- that's being offered as a 20 result of agreements between the parties. We initially weren't 21 offering it and defense wanted it and then we negotiated it. 22 And as a result of the negotiation, we agreed to let the entire 23 notebook come in. And now we get penalized for entering into 24 an agreement outside the rules of evidence. 25 Clearly those statements, your Honor, are statements SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6722 4a4esat6 1 of Abdel Rahman and a double hearsay issue comes up. That's 2 why they're not admissible, your Honor. 3 In addition, in fact, his complaints about his 4 conditions are not relevant to this case, unless perhaps as 5 they relate to Ms. Stewart's state of mind, but they're not 6 being offered for the truth of the matter asserted. 801 7 doesn't require that when you put in a statement that happens 8 to be a statement of a defendant or coconspirator, that they 9 must be introduced for the truth of the matters asserted, as 10 counsel seems to be suggesting that they run parse, which it 11 does not. 12 THE COURT: I agree with that also for substantially 13 those reasons. 14 And in addition, my understanding is that the prison 15 visit came in with the stipulation with respect to the words of 16 Omar Abdel Rahman not being offered for the truth and that 17 these additional portions of the notebook are in because of the 18 defendant's request that they be in. 19 MR. TIGAR: That's right, your Honor. We said they 20 should come in under Rule 106. But that didn't lay the hearsay 21 objection. I mean, basically your Honor's being asked to give 22 an instruction to the jury that the out-of-court factual 23 backward-looking statements by a hearsay declarant are not 24 offered for their truth; and indeed, to go further and say that 25 the present sense impression and statements for the purposes of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6723 4a4esat6 1 about his present condition and his intention are also not 2 offered for their truth, even though under provisions of Rule 3 803 they would be admissible for that purpose. 4 Now, in order to achieve an agreement on the prison 5 tapes we withdrew from a position that Mr. Barkow would 6 acknowledge I took that there should be highlighted on the 7 transcript present sense impression statements from Sheikh 8 Abdel Rahman and those would come in for the truth. The 9 government took the position if we said that, then they were 10 going to reopen the whole 106 negotiation on the prison tape. 11 That negotiation doesn't affect our position with respect to 12 the notebook. 13 The notebook position was, one, if they want one page, 14 the whole thing comes in. Nothing about that position had to 15 do with limiting instructions or whatever. So I -- it appears 16 to me that the Court has ruled that the government's position 17 is correct. 18 And I'm not going to take more time by attempting to 19 reargue it. If that's the instruction that the Court chooses 20 to give, then our position is noted on the record and I won't 21 waste time, you know, arguing with what the Court's already 22 decided. 23 THE COURT: All right. OK. Want me to get the jury? 24 MR. MORVILLO: Yes, your Honor. 25 If I could inquire to defense counsel through the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6724 4a4esat6 1 Court as to whether they made a decision whether they would 2 like Mr. Fitzgerald to be recalled. 3 MR. TIGAR: Your Honor, I did discuss this over the 4 luncheon recess. No, we do not wish to call Mr. Fitzgerald, at 5 least to be a witness in the government's case for present 6 purposes. We have reached that and that doesn't seem to be the 7 right thing to do. 8 Should we wish to call him as a witness in our case, I 9 discussed that with Mr. Morvillo and I trust we'll be able to 10 work out a date that's convenient. 11 THE COURT: All right. And I will, by the way, of 12 course, file under seal Mr. Morvillo's letter with the redacted 13 and unredacted version of the memo. 14 MR. TIGAR: Thank you very much, your Honor. 15 And I take it by virtue of the Court's offer to us 16 that a ruling that he could be called, that it would not be 17 necessary to issue a subpoena, that notice to the government 18 would be sufficient? 19 THE COURT: I'm sure -- 20 MR. MORVILLO: We'll make him available, your Honor. 21 THE COURT: OK. Let's bring in the jury. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6725 4a4esat6 1 (In open court; jury present) 2 THE COURT: Good afternoon ladies and gentlemen. Good 3 to see you all. I hope you had a good lunch. 4 All right, Mr. Dember. 5 MR. DEMBER: Your Honor, before we -- right before the 6 luncheon break, four exhibits that I read to the jury had not 7 formally been moved into evidence before the jury. And I'd 8 like to at this time move into evidence those exhibits, which 9 are Exhibits 2625, 2630, 2623 and 2624. 10 THE COURT: All right. Those exhibits are received in 11 evidence. 12 (Government's Exhibits 2625, 2630, 2623 and 2624 13 received in evidence) 14 THE COURT: And they're all subject to the limiting 15 instruction, ladies and gentlemen, that I gave you. These are 16 newspaper articles. They're not being admitted for the truth 17 of any of the matters asserted in the articles but solely with 18 respect to the knowledge, intent and state of mind of 19 Ms. Stewart. 20 All right. 21 MR. DEMBER: Your Honor, of the remaining exhibits 22 that we plan to present today, the following have not been 23 formally moved into evidence before the jury and I'd like to do 24 that right now. They are Government Exhibits 2628, 2626, 2612, 25 2611, 2627, 2619, 2622, 2666, 2620, 2671 and 2634. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6726 4a4esat6 1 THE COURT: All right. Those exhibits are received in 2 evidence. 3 (Government's Exhibits 2628, 2626, 2612, 2611, 2627, 4 2619, 2622, 2666, 2620, 2671 and 2634 received in evidence) 5 THE COURT: And the Exhibits 2628 through 2671 are 6 received in evidence but not for the truth of any of the 7 matters asserted in those exhibits, but solely with respect to 8 the knowledge, intent and state of mind of Ms. Stewart. 9 I understand that many of those exhibits are newspaper 10 articles and I've previously instructed you about newspaper 11 articles. And those, of course, are not being received for the 12 truth of any of the matters asserted, and none of those 13 exhibits are received for the truth of the matters asserted, 14 but solely with respect to Ms. Stewart's knowledge, intent and 15 state of mind. 16 And with respect to Exhibit 2634, that exhibit is not 17 received for the truth of any matters asserted by Sheikh Omar 18 Abdel Rahman that are contained in that exhibit. 19 All right. 20 MR. DEMBER: Your Honor, at this time may we display 21 to the jury and read Government Exhibit 2628. 22 THE COURT: All right. 23 (Government Exhibit 2628 displayed to the jury) 24 MR. DEMBER: Your Honor, along the right-hand side of 25 the exhibit it reads New York Times International Sunday, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6727 4a4esat6 1 April 21, 1996. 2 Can we shift it over to its proper side at this point. 3 In the upper right-hand side of the document 4 handwritten is the letters GOVT and the word exhibits. And the 5 title of the article is Islamic Group claims attack at Cairo 6 hotel that killed 18. It's by Youssef M. Ibrihim, and it's 7 Cairo, April 20. 8 It reads as follows: Egypt's largest Islamic militant 9 group took responsibility today for killing 18 Greek tourists 10 in an attack on Thursday at a Cairo hotel near the pyramids of 11 Giza. 12 The main government-controlled daily newspaper, 13 Al Ahram, reported today that five suspects in the attack had 14 been identified and that one had been arrested. 15 In an interview this evening, General Raouf el-Manawi 16 of the ministry of the interior said that four more suspects 17 seen in the vicinity and believed to have been involved in 18 planning the attack had also been identified by witnesses from 19 police picture files and placed under arrest. The newspaper 20 report said the police had set up checkpoints and secure 21 reportings around seven shanty towns in Cairo, a metropolis of 22 13 million people. A huge security sweep against 23 fundamentalist Muslims since the attack has rounded up as many 24 as 1,500 people. 25 The claim of responsibility by the militants from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6728 4a4esat6 1 Islamic Group said that they had intended to kill Israelis 2 rather than Greeks and that the attack was meant to avenge 3 Israel's attacks on Lebanon, which began ten days ago. 4 Government officials discounted that part of the statement, 5 however, saying that it would have been impossible to plan the 6 attack in such a short time frame. Security officials said the 7 attack clearly required considerable planning far in advance of 8 Israel's operations in Lebanon. 9 The officials asserted that the real aim of the group 10 was to undermine the government by setting back the Egyptian 11 economy, which is dependent on the $3 billion to $4 billion a 12 year it earns from foreign tourism. The Islamic militants have 13 carried out a campaign of killings in Egypt for the last four 14 years in an attempt to overthrow Egypt's secular government and 15 to replace it with an Islamic state. 16 Foreign tourists have been frequent targets in the 17 campaign. The attack on Thursday, the first in Cairo in two 18 years, was the worst of 23 attacks on tourists claimed by the 19 Islamic Group since 1992. Eight tourists had been killed in 20 all the previous assaults. 21 Second page. Said the police had reports from 22 witnesses and solid information on the whereabouts of five 23 suspects, including a driver. 24 The statement from the Islamic Group was sent to news 25 agencies by fax. It said that the group's aim was to kill SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6729 4a4esat6 1 Jewish tourists from Israel who were presumed to be staying in 2 the hotel, called Europa. 3 The gunmen ambushed the tourists just outside the 4 hotel. All the tourists were from Greece but had recently 5 arrived from Israel. Fourteen of those killed were elderly 6 women travelling on a pilgrimage to visit Christian religious 7 sites. 8 The killing of tourists, especially those from a 9 country friendly to Egypt, has elicited widespread disgust 10 among vast segments of the Egyptian population. The senior 11 government official suggested today that the killers were now, 12 "opportunistically" trying to justify their attack by claiming 13 the intended targets were Israelis. The Israeli army's attacks 14 on Lebanon during the last ten days have caused even more 15 hostility here than usual towards Israel. 16 The statement issued by the militants said, "the 17 military wing of the Islamic Group announces its responsibility 18 for the holy war operation that targeted a tourist group and 19 killed 18 and wounded 15." It said that the claim was delayed 20 for two days to allow those who had carried out the attack to 21 escape. 22 The announcement described Jews in derisive language 23 typical of the writings of the group's spiritual leader, Omar 24 Abdel Rahman, who is serving a life sentence in the United 25 States for plots to blow up New York City landmarks. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6730 4a4esat6 1 It also said the attack was "to avenge the death of 2 martyrs in Lebanon" and that "the operation was meant for a 3 Jewish group because they often stay in this hotel." 4 On the day of the attack many Israeli tourists in the 5 hotel, which is indeed frequented by Israelis, were Arab 6 citizens of Israel. None were harmed and several of them who 7 had watched the early morning assault from their balconies in 8 the eight-story hotel proved to be some of the most effective 9 witnesses, security officials said. 10 Al Ahram, the government controlled newspaper, said 11 today that the police were able to use the reports of numerous 12 witnesses to trace the escape route of the killers, who are 13 still believed to be hiding in the capital. The report 14 asserted that the police had the hiding places surrounded and 15 that security officials were continuing to question suspects. 16 The general also said today that they had suspended 17 five senior police officers and would place 13 on trial for 18 negligence as a result of investigations of the circumstances 19 that allowed the attack to be carried out. 20 Your Honor, at this time the government requests 21 permission to read and display for the jury Government 22 Exhibit 2626, which is now in evidence. 23 THE COURT: All right. And this is subject to the 24 same limiting instruction, ladies and gentlemen. 25 MR. DEMBER: To the right-hand side, your Honor, there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6731 4a4esat6 1 is the date that indicates it's 4/24/96. Next word below that 2 is edition, and it indicates Bergen record. 3 And if we focus on the top of the article, the title 4 itself, the title is two suspects in massacre of tourists are 5 killed. Assiut, Egypt. 6 And this is the article itself: In an hours-long gun 7 battle amid sugar-cane fields, police Tuesday killed two men 8 they believed participated in the massacre of 18 Greek tourists 9 near the pyramids. 10 Four policemen died and 14 others were wounded. It 11 was the bloodiest day since assailants opened fire on the 12 tourists outside the Europa hotel in Cairo Thursday, a savage 13 reminder that Egypt's struggle to halt Muslim militants' 14 violent campaign continues. 15 Al-Gama'a al-Islamiyya or the Islamic Group claimed 16 responsibility for the attack, saying it meant to kill Israeli 17 tourists to avenge the Israeli bombing of Lebanon. The Islamic 18 group is the largest militant organization in Egypt. 19 Since the attack, the government has sent thousands of 20 police into fields and towns in southern Egypt to search for 21 the assailants. Police have arrested hundreds of suspects. 22 Militants opened fire Tuesday as security forces 23 closed in on their hideouts in sugar-cane fields near the tense 24 town of Malawi, about 50 miles north of Assiut, police said. 25 Two gunmen were killed, and the interior ministry said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6732 4a4esat6 1 both were believed "to have participated in a recent attack on 2 the tourists." 3 Your Honor, may we now read and display for the jury 4 Government Exhibit 2612. 5 THE COURT: Yes. And subject to the same limiting 6 instruction, ladies and gentlemen. 7 MR. DEMBER: Title of the article is suspects in 8 tourist deaths battle Egypt police; six die. 9 Asyut, Egypt, April 23rd (AP). Egyptian police fought 10 a gun battle today with Islamic militants they said were 11 responsible for killing 18 Greek tourists last week. 12 Two men believed by the police to have participated in 13 the killing of the tourists were killed in the battle in 14 southern Egypt. Four police officers died and 14 others were 15 wounded. 16 The Islamic group, the largest organization involved 17 in a violent four-year campaign to replace Egypt's secular 18 government with an Islamic one, has claimed responsibility for 19 the attack on the tourists. Major Gen. Gamal Fayeq, head of 20 police forces in the south and his brother, Lieutenant Col. 21 Magdi Fayeq, were among the police killed, the ministry said. 22 Your Honor, may we read and display for the jury 23 Government Exhibit 2611. 24 THE COURT: Yes. And it's subject to the same 25 limiting instruction, ladies and gentlemen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6733 4a4esat6 1 MR. DEMBER: Miss Griffith, can we focus on the top of 2 the exhibit itself. It is dated Monday, April 22, 1996. The 3 title of the article is militants in Egypt threaten Americans 4 with retaliation, by Youssef M. Ibrahim. Cairo, April 21. 5 Two militant Islamic groups threatened today to kidnap 6 American citizens and to target American and Israeli interests 7 around the world with bombings and sabotage. The organizations 8 are the Islamic Group, which took responsibility for killing 18 9 Greek tourists in Egypt a few days ago, and an offshoot of the 10 Jihad or Holy War group, which sent a suicide bomber to blow up 11 the Egyptian embassy in Pakistan last year and which 12 assassinated president Anwar el-Sadat of Egypt in 1981. Each 13 group said it wants to avenge American support of Israel in its 14 military campaign in Lebanon, among other things. 15 In the last few days, several other armed Islamic 16 groups in the Israeli-occupied territories and in Lebanon have 17 made similar threats after Israel's military action in Lebanon 18 against the Islamic militia, Hezbollah, or the Party of God. 19 Security officials here and in Jordan dismissed 20 today's threats as more empty emotional bombast, but the two 21 groups issued warnings today -- excuse me, but the two groups 22 issuing warnings today have participated in the last decade in 23 several attacks, including an attempt to bomb New York 24 landmarks in 1993. 25 These latest threats come at a time of great SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6734 4a4esat6 1 consternation in the Arab world over the size and scale of the 2 Israeli military retaliation. Some 130 Lebanese civilians have 3 been killed and tens of thousands of Lebanese have fled their 4 homes. The coverage of these episodes has been intense in Arab 5 news media, creating much anger and dismay. The most specific 6 threat came in a rare interview with Mustafa Hamza, believed by 7 Egyptian intelligence to be the chief military planner of the 8 Islamic Group. The interview was with the Arab-language daily 9 Al-Hayat. 10 Mr. Hamza asserted in the interview that his 11 organization may kidnap American citizens to win the release of 12 its spiritual leader, Sheikh Omar Abdel Rahman. Mr. Abdel 13 Rahman is serving a life sentence in the United States for the 14 conspiracy to blow up New York landmarks. 15 Nearly two weeks ago he sent a message to his 16 followers asking them to avenge his imprisonment. The warnings 17 from the Holy War Group were in a statement faxed to news 18 agencies today. The statement called on Muslims to attack 19 American and Israeli targets in retribution for Israel's 20 actions in Lebanon and what it asserted was the United States' 21 support of this policy. 22 Mr. Hamza, of the Islamic Group, sought the interview 23 with Al-Hayat which was conducted at a remote area in 24 Afghanistan. "The question of kidnapping Americans to hold as 25 ransom for the Sheikh has been put forward," he said. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6735 4a4esat6 1 He asserted that his organization remains in touch 2 with its jailed spiritual guide. "We have warned the United 3 States in our statements and the matter is now tied to the 4 right circumstances to achieve our goal," he said. 5 Mr. Hamza is under death sentence in Egypt for 6 planning a score of killings. He made no apology for ordering 7 killings of tourists by his group, saying further attacks on 8 tourists will be undertaken. 9 He also asserted that he stood behind a failed 10 assassination attempt of President Hosni Mubarak. The United 11 Nations Security Council has threatened to impose sanctions on 12 Sudan, which was believed to be harboring Mr. Hamza. 13 Egyptian security officials here said it was likely 14 that one of the reasons Mr. Hamza sought the interview in 15 Afghanistan was to challenge the impression that he lives in 16 the Sudan, which is seen as a hub for Islamic militant groups. 17 Senior editors of the London-based Al-Hayat said today 18 that they were contacted by Mr. Hamza to seek the unusual 19 interview four days before the Islamic group carried out the 20 killings of the tourists in a Cairo hotel. 21 The statement faxed to news services by the Holy War 22 Group said, "we call upon ourselves and other Muslims to 23 sacrifice themselves and hit American and Israeli targets 24 everywhere for the sake of making victorious God's religion and 25 in defense of the lands of Muslims." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6736 4a4esat6 1 It was signed by an offshoot of the group known as 2 Vanguards of Conquest, renamed after the mother group -- excuse 3 me, named after the mother group was largely crushed by 4 Egyptian security sweeps in the 1980s. 5 Your Honor, may we simply display for the jury what is 6 Government Exhibit 2627. 7 THE COURT: All right. Subject to the same 8 instruction. 9 MR. DEMBER: Which is simply another version of the 10 same article I just read, your Honor. I will not read this 11 one. 12 (Government Exhibit 2627 was displayed to the jury) 13 THE COURT: All right. 14 MR. DEMBER: May we at this time, your Honor, display 15 and read for the jury Government Exhibit 2619. 16 THE COURT: Yes. Subject to the same limiting 17 instruction. 18 MR. DEMBER: At the very top of the article is the 19 words following up. And the title is, close prison watch for 20 cleric in bombing. 21 When the powerful bomb that rocked the soaring twin 22 towers of the World Trade Center in Manhattan in February of 23 1993 turned out to be the work of militant Muslims, Americans 24 were spectacularly shown that their home soil was not immune to 25 lethal reverberations of the Middle East conflicts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6737 4a4esat6 1 Later, federal officials said the bombing, which 2 killed six people and injured more than 1,000, was part of a 3 larger terrorist conspiracy that also included plans to bomb 4 the United Nations headquarters and the Lincoln and Holland 5 Tunnels. 6 They said the conspiracy's leader was a blind, fiery 7 fundamentalist cleric from Egypt, Sheikh Omar Abdel Rahman, who 8 had immigrated to the United States in 1990. In 1995 a jury in 9 federal district court in Manhattan convicted him of seditious 10 conspiracy, rejecting his defense that he had only been 11 continuing his long-time exhortations in America for the 12 Egyptian government's overthrow. He was sentenced to life in 13 prison. 14 Today, Mr. Abdel Rahman, 62, is in a federal prison 15 hospital in Rochester, Minnesota, under highly restrictive 16 conditions. One of his lawyers, Abdeen Jabara, said, he said 17 Mr. Abdel Rahman was kept isolated from the other prisoners and 18 permitted to make no phone calls except to his lawyers and one 19 15-minute call a month to his family in Egypt. 20 Mr. Jabara said that only immediate relatives were 21 allowed to visit, and because of the expense, they had come to 22 the United States for this purpose just once, when his client's 23 wife and brother stayed for two weeks last year. He said that 24 Mr. Abdel Rahman, unable to read or write because of his 25 blindness, "listens to a lot of tapes of Koranic exegesis and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6738 4a4esat6 1 recitation." 2 A federal Bureau of Prisons spokeswoman, Traci 3 Billingsley, said she could not discuss any inmate's 4 confinement details. 5 Mr. Jabara's portrait of his client contrasted sharply 6 with a Reuters news agency report two weeks ago that said an 7 Islamic group in London reported receiving a statement relayed 8 through Mr. Abdel -- relayed though Mr. Abdel Rahman's legal 9 advisers in which he urged Muslims to "kill Jews everywhere." 10 Mr. Jabara said that the report was "totally ridiculous." 11 He added, "it's not true any legal advisor transmitted 12 such a message." 13 Your Honor, at this time the government requests 14 permission to display to the jury and read portions of 15 Government Exhibit 2622, which I'll be using the Elmo for, your 16 Honor. 17 THE COURT: All right. Ladies and gentlemen, this is 18 subject to the same limiting instruction. It's not received 19 for the truth of any of the matters asserted and it's admitted 20 solely with respect to the knowledge, intent and state of mind 21 of Ms. Stewart. 22 MR. DEMBER: At the top of the exhibit it reads, 23 United States Department of Justice, Executive Office for 24 Immigration Review, Office of the Immigration Judge. 25 And the caption reads In the Matter of Nasser Ahmed, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6739 4a4esat6 1 a/k/a Nasser Ahmed Homosany, a/k/a Nasser Ahmad Kadri, a/k/a 2 Ahmed Aly El-Homosany. 3 Respondent in deportation proceedings. 4 Just below that reads: Material declassified per 5 respondent's request of September 29, 1998. Materials 6 reviewed: One, classified document dated September 22, 1998; 7 two, classified document dated September 14, 1998; three, 8 transcript of October 7, 1998, in camera ex parte presentation. 9 Results of declassification review: One, classified 10 document dated September 22, 1998 - see attached; two, 11 classified document dated September 14, 1998 - withheld in its 12 entirety; three, transcript of October 7, 1998, in camera, 13 ex parte presentation - see attached. 14 And it reads, respectfully submitted, Suzanne 15 McGregor, assistant regional counsel, INS, Eastern Region. 16 Below that the name Anne E. Gannon, assistant district counsel, 17 INS, New York district. Appears to be the same surname again 18 and the date, November 27, 1998. 19 The next page the word secret is crossed out on the 20 top. The date is September 22, 1998. Office of the 21 Immigration Judge, 201 Varick Street, New York, New York 10014. 22 On the bottom it reads classified by, and then that section is 23 redacted. 24 The following is page number two of the exhibit. On 25 the top the word secret is crossed out. And below that are the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6740 4a4esat6 1 words Office of the Immigration Judge. And below that, reason, 2 1.50 and (d), declassify on 1.6(d)(1). 3 "National security" as defined in Executive Order 4 12958, Section 1.1(a) refers to the national defense or foreign 5 relations of the United States. Investigation of international 6 terrorism is necessary to the national security. 7 Counterterrorism investigations are primarily intended to 8 prevent harm to US persons and US interests, but also designed 9 to prevent harm generally. 10 In conducting counterterrorism investigations, the FBI 11 seeks information dealing with but not limited to: One, 12 individuals, groups or organizations who are or may be engaged 13 in terrorism activities; two, recruitment of targets by 14 individuals or organizations who are or may be engaged in 15 terrorist activities; three, the organizational structure of 16 terrorist and suspected terrorist organizations or groups of 17 individuals; four, methods of procurement and training employed 18 by terrorist and suspected terrorist organizations or groups 19 and individuals; five -- 20 THE COURT: Organizations. 21 MR. DEMBER: I'm sorry, your Honor. Four -- I'll read 22 that again -- methods of procurement and training employed by 23 terrorist and suspected terrorist organizations or groups and 24 individuals; five, operational and financial plans and 25 techniques of terrorist and suspected terrorist organizations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6741 4a4esat6 1 or groups and individuals, including fund-raising; six, methods 2 of communication by terrorist and suspected terrorist 3 organizations or groups and individuals; seven, information 4 needed to protect the safety of any persons or organizations, 5 including those who are targets, victims or hostages of 6 international terrorist organizations. 7 Collection of this and similar information is 8 essential to the FBI's ability to identify and counteract 9 threats to national security. Nonpublic information collected 10 pursuant to international terrorism investigations is 11 classified to protect against disclosure that would permit a 12 terrorist or suspected terrorist organization, group or 13 individual to avoid preventive or detection measures, or would 14 reveal FBI or other intelligence agency sources and methods by 15 which such information is obtained. 16 Turning to what is listed as page three, the word 17 secret is crossed out, Office of the Immigration Judge. Reads 18 as follows: Nasser Kadri Ahmed, also known as (a/k/a) Nasser 19 Ahmed, is a native and citizen of Egypt. Ahmed was born on 20 February 4, 1961, in Cairo, Egypt. 21 Al-Gama'a al-Islamiyya (AGAI) is an Egyptian based 22 international radical fundamentalist/extremist organization 23 whose members espouse the overthrow of the secular Egyptian 24 government by using terrorism to intimidate that government, 25 its citizens and supporters of the Egyptian government to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6742 4a4esat6 1 include the United States. AGAI has been formally designated a 2 foreign terrorist organization by the United States Secretary 3 of State pursuant to her authority under the Anti-terrorism and 4 Effective Death Penalty Act of 1996 (AEDPA). 5 The AGAI terrorist organization has claimed 6 responsibility for several acts of violence, to include the 7 attempted assassination of Egyptian President Hosni Mubarak in 8 Addis Ababa, Ethiopia in June 1995; a car bombing outside of 9 police headquarters in Rijeka, Croatia, killing two police 10 officers; and the November 17, 1997, killing of 65 tourists in 11 the valley of the Queens, Luxor, Egypt. 12 These victims were summarily executed at close range 13 by the gunmen. Additionally, the mastermind of the Mubarak 14 assassination attempt, also a military leader for AGAI, namely 15 Mustafa Hamza, expressed anger at the United States for the 16 incarceration of Sheikh Omar Abdel Rahman, the spiritual leader 17 of AGAI. The group (AGAI) has publicly threated to retaliate 18 against US interests if any harm comes to Sheikh Rahman. 19 On January 17, 1996, Sheikh Rahman, the spiritual 20 leader of AGAI, was convicted in the US District Court, 21 Southern District of New York, for seditious conspiracy for his 22 role in the attempted assassination of President Mubarak of 23 Egypt and for his role in bombing plots directed at the United 24 States, specifically the United Nations, the New York federal 25 building, located at 26 Federal Plaza, New York City, and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6743 4a4esat6 1 Lincoln and Holland Tunnels. Sheikh Rahman was sentenced to 2 life in prison for his involvement in the conspiracy, which was 3 intended to force the United States to end its support for the 4 governments of Israel and Egypt. Sheikh Rahman is currently 5 incarcerated in the Federal Medical Center in Rochester, 6 Minnesota. 7 This information is based on a February 2, 1995, 8 letterhead memorandum from the US Attorney's Office, Southern 9 District of New York, 2-95. Ahmed was listed as an 10 inunindicted coconspirator in the United States vs. Omar Ahmed 11 Ali Abdel Rahman, et al (93 CR 181)(MBM). 12 Rahman is still publicly considered to be the 13 spiritual leader of AGAI and its brother terrorist 14 organization, Al-Jihad. Other Islamic fundamentalist terrorist 15 organizations, such as Osama bin Laden's International Islamic 16 Front for the Jihad Against Jews and Crusaders, also recognize 17 Rahman as an important Muslim scholar and respect his knowledge 18 and religious position. Bin Laden is a well known financier of 19 terrorism who has been recognized by the US and foreign 20 governments as a significant terrorist threat to US interests 21 and citizens. 22 In May 1998 bin Laden again issued a fatwah calling 23 upon Muslims to wage "jihad" against the US and its interests. 24 The International Islamic Front for the Jihad Against Jews and 25 Crusaders is an alliance formed by bin Laden of known terrorist SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6744 4a4esat6 1 groups, which includes AGAI and Al-Jihad. 2 In bin Laden's May fatwah, parts of which were 3 televised on ABC news, bin Laden told ABC news correspondent 4 John Miller that, "we don't differentiate between those dressed 5 in military uniforms and civilians. They are all targets of 6 this fatwah." Bin Laden also stated that "we also hold them 7 (American government) responsible for its attacks on Islamic 8 symbols, Sheikh Abdel Rahman, who is considered one of the most 9 prominent Islamic scholars who Allah gave the courage to speak 10 the truth." 11 "We hear that he is in a bad health condition and he 12 is a man beyond 60 years of age and is blind and America treats 13 him badly. The imprisonment of Sheikh Omar is an attack on the 14 Muslim religion and countries. We hold it completely 15 responsible for the imprisonment of Sheikh Omar and the 16 imprisonment of other Muslims in America." The entire 17 transcript of this interview was published on the Internet by 18 ABC News the day of the broadcast. 19 In his capacity as a recognized spiritual leader and 20 scholar among Muslim extremists, Rahman has the capability of 21 issuing a fatwah or religious ruling calling upon his followers 22 and other Muslims to avenge his incarceration. He can likewise 23 provide false information about the conditions under which he 24 is incarcerated to inflame anti-US sentiment and to bolster his 25 claim that it is the duty of Muslims to achieve his release SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6745 4a4esat6 1 from prison. In addition, Rahman's incarceration is viewed by 2 fundamentalists as part of the "conspiracy" of "the West" to 3 attack Islam. 4 Ahmed has maintained a close personal and professional 5 association with Sheikh Rahman during his trial in New York and 6 following Rahman's conviction and sentencing (October 1995 and 7 January 1996). Prior to Rahman's conviction, Ahmed was one of 8 Sheikh Rahman's paralegals. Following Ahmed's arrest by the 9 Immigration and Naturalization Service (INS) on April 24, 1995, 10 Judge Mukasey relieved Ahmed as Sheikh Rahman's paralegal due 11 to his illegal alien status. 12 On April 15, 1996, the New York Times reported that 13 Mr. Abdel Rahman submitted a letter to a London-based Arabic 14 daily newspaper, Al-Hayat, accusing prison guards at the United 15 States medical center for federal prisoners in Springfield, 16 Missouri, of racial discrimination and religious prejudice. 17 Rahman called on his supporters to "make your voice heard" to 18 improve his living conditions. Rahman further stated that 19 "people of manhood, support, sacrifice and dignity: Rise up 20 from your deep slumber and make your voice heard. Rise up and 21 see justice -- I'm sorry, rise up and see justice done, end 22 quote. 23 Your Honor, at this time I'm going to turn to a rather 24 lengthy document, which is Government Exhibit 2666. 25 THE COURT: All right. It's about 3:40, so why don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6746 4a4esat6 1 we take our ten-minute break and then we'll continue until 2 4:30. 3 Please, ladies and gentlemen, please remember my 4 continuing instructions not to talk about the case. Keep an 5 open mind. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6747 4a4esat6 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, I'm sorry. Very briefly, with 3 respect again to Government Exhibit 2634 and the hearsay, 4 that's the notebook. 5 In light of the government's reaction to my suggestion 6 that Sheikh Rahman could be called, if indeed he can't be 7 called, we also ask that his hearsay be admitted under 8 Chambers vs. Mississippi on the grounds that he's unavailable. 9 I just wanted to add that. 10 THE COURT: Government? 11 MR. TIGAR: I can give the Court a letter because it's 12 clearly not going to get to it today. 13 THE COURT: All right. Have a seat for a moment. 14 You can certainly give me a letter. There is no 15 reasonable way in my mind that the statements by Sheikh Rahman 16 with respect to his prison conditions would fall within what 17 the Supreme Court said in Chambers. Also, I had thought that 18 the parties, well, discussed various issues both before trial 19 and with respect to this exhibit recently, but I leave that to 20 the parties. All right. 21 (Recess) 22 MR. PAUL: Your Honor, I think it's agreed that last 23 reference to an individual Ahmed in the previous document that 24 was read to the jury was clearly not my client. And I would 25 like to bring that to the jury's attention, because there's a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6748 4a4esat6 1 reference to Ahmed, the paralegal, and so forth in that 2 document. There's no reference to Ahmed Abdel Sattar, and I 3 don't want to leave that confusion out there in the minds of 4 the jury. 5 THE COURT: I'm prepared to tell the jury that the 6 parties agree that any references to Ahmed in the last document 7 were to Nasser Ahmed and not to the defendant Ahmed Abdel 8 Sattar. 9 MR. PAUL: That would be fine. Thank you. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6749 4a4esat6 1 (In open court; jury present) 2 THE COURT: Ladies and gentlemen, with respect to the 3 last document, Government Exhibit 2622, any references in that 4 document -- the parties agree that any references in that 5 document to Ahmed refer to Nasser Ahmed and not to the 6 defendant in this case, Ahmed Abdel Sattar. 7 All right. Whenever you're ready to proceed. 8 MR. DEMBER: Your Honor, at this time the government 9 requests permission to read and present to the jury Government 10 Exhibit 2666, which is in evidence. 11 THE COURT: All right. 12 MR. DEMBER: This also has the instruction. 13 THE COURT: Yes, ladies and gentlemen. This document 14 also is received not for the truth of any of the matters 15 asserted in the document but rather for -- but solely with 16 respect to the knowledge, intent and state of mind of 17 Ms. Stewart. 18 MR. DEMBER: The top portion of the document reads, 19 United States Department of Justice, Executive Office for 20 Immigration Review, Immigration Court, 201 Varick Street, 21 New York, New York. File number A90 674 238, July 30, 1999. 22 With a footnote, this public portion of the Court's 23 decision was initially drafted on June 24, 1999 and thereafter 24 submitted for classification review. After that review it was 25 determined that the public portion of the decision contained no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6750 4a4esat6 1 classified information. Upon return of the decision after -- 2 I'm sorry, after such review, the Court has made minor 3 corrections and additions unrelated to the classified 4 information presented in this case. 5 The caption reads, in the matter of Nasser Ahmed, 6 a/k/a Nasser Ahmed El-Homosany, respondent in deportation 7 proceedings. Louis M. Bograd, American Civil Liberties Union 8 Foundation, Washington, DC; David Cole, Georgetown University 9 Law Center, Washington, DC; Abdeen Jabara, Lawrence Schilling, 10 Lynne Stewart, New York, New York for respondent. 11 Suzanne McGregor, assistant regional counsel; Anne E. 12 Gannon, assistant district counsel; John Mulrooney, assistant 13 district counsel for Immigration and Naturalization Service. 14 Decision following remand: On May 5, 1997, this Court 15 denied the respondent's application for asylum and withholding 16 of deportation on the basis of confidential information which 17 indicated that there were reasonable grounds for rewarding -- 18 THE COURT: Regarding. 19 MR. DEMBER: For regarding the respondent as a danger 20 to the security of the United States. The court granted 21 voluntary departure to the respondent and both sides appealed. 22 The Board of Immigration Appeals remanded the matter to this 23 Court in a decision dated August 7, 1998. The board's 24 decisions noted that, while the matter was on appeal, the 25 service had provided to the respondent a more extensive SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6751 4a4esat6 1 unclassified summary of the classified material. 2 While the case was pending on remand, the service 3 submitted the classified material to the originating agency for 4 "declassification review." Also, while the matter was pending 5 on remand, the service presented additional classified material 6 to the immigration court in camera. This additional classified 7 information was also subject to declassification review. 8 Following these declassification reviews, redacted versions of 9 the material and a separate unclassified summary were served on 10 respondent. (Exhibits R-1, R-2 and R-4). The Court's review 11 and analysis of the confidential material is contained in a 12 separate "classified attachment." 13 After respondent's receipt of the declassified 14 material, additional evidentiary hearings were held in open 15 court at which the respondent and the Service were given the 16 opportunity to provide additional evidence. Testimony was 17 taken on December 15 and 16, 1998, and on January 14, 1999. 18 Respondent's presentation focussed on four areas of concern: 19 One, respondent's alleged association with Al-Gama'a 20 Al-Islamiyya; two, respondent's alleged efforts to send 21 bomb-making manual overseas; three, the implication that 22 respondent relayed a call to violence from Sheikh Omar Rahman 23 to the outside world; and four, that respondent has threatened 24 Mohammed Al-Sharif, an iman at the Abu Bakr Mosque in Brooklyn, 25 New York. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6752 4a4esat6 1 The service presented a witness, Mohammed Al-Sharif, 2 to testify concerning activities at the mosque, the 3 respondent's actions and his words. The service also presented 4 documentary evidence concerning the Al-Gama'a Al-Islamiyya, as 5 well as a copy of a district court indictment charging the 6 respondent with submitting a false application for temporary 7 residence as a special agricultural worker. (Exhibit R-6). 8 Footnote two. 9 After testimony was taken in this case, the INS 10 submitted documentation to show that the respondent was found 11 guilty of a violation of 18 U.S.C. 1426(b), and he is presently 12 awaiting sentencing. 13 Following the open sessions, the Court scheduled a 14 further in camera session to allow follow-up questions -- 15 THE COURT: In camera. 16 MR. DEMBER: Questioning of the in camera witness. In 17 anticipation of that session, the Court composed a list of 18 questions which would be asked. The in camera witness 19 responded to the list of questions by indicating an intention 20 not to answer most of the questions. Accordingly, the 21 follow-up in camera session was cancelled. 22 Thereafter, the parties were allowed a period of time 23 to submit additional evidence and argument. Both parties 24 submitted additional evidence and argument, which included 25 discussion of the possibility of relief under the Torture SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6753 4a4esat6 1 Convention pursuant to recently promulgated regulations. 2 Also, the service submitted an affidavit with an 3 attachment from a New York City police detective and a 4 memorandum of investigation. On April 20, 1999, the Court 5 requested an updated advisory opinion from the US State 6 Department which has not been received as of the date of this 7 decision. On the basis of the original record and the evidence 8 submitted on remand, the Court's original order will be 9 withdrawn and the respondent will be granted asylum and 10 withholding of deportation. 11 Evidence presented on remand. 12 The declassified material provided by the INS to the 13 respondent allowed the respondent to focus more clearly on the 14 allegation that he should be regarded as a danger to the 15 security of the United States. The declassified material made 16 the respondent aware of some of the specific reasons for being 17 considered a security risk. To the extent that the respondent 18 was aware of the specific reasons, his presentation of evidence 19 at the remanded hearing was effective in overcoming the 20 evidence presented against him. 21 Among the previously classified information which was 22 disclosed to the respondent was the name of the organization of 23 which he was accused of being a member. The organization was 24 identified as the al -- 25 THE COURT: I'm sorry. That organization. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6754 4a4esat6 1 MR. DEMBER: Al-Gama'a al-Islamiyya (Al-Gama'a). 2 Also, it was disclosed to the respondent that he had visited 3 Sheikh Omar Rahman on specific dates in March 1996 just prior 4 to the release of a letter from Sheikh Rahman to the 5 international media (Exhibit R-2-1, page two). That 6 information implies that respondent had carried the message 7 from Sheikh Rahman to the outside world and a few days later, 8 the Al-Gama'a responded by killing a group of tourists in 9 Cairo. 10 Footnote three: That implication was apparent in the 11 public record created in the 1997 proceedings. In those 12 proceedings the respondent testified to visiting Sheikh Rahman 13 in April of 1996. 14 THE COURT: April of 1996. 15 MR. DEMBER: In April of 1996. Also, the service 16 introduced a newspaper report dated April 15, 1996, describing 17 the Sheikh's letter. 18 Back to the text. 19 Also disclosed was the statement that the respondent 20 was an "unindicted coconspirator" in the criminal case against 21 Sheikh Rahman, that associates of the respondent had been 22 arrested and convicted in the World Trade Center ("WTC") 23 bombing case and in Sheikh Rahman's case, and that respondent 24 had attempted to obtain bomb-making materials -- 25 THE COURT: Manuals. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6755 4a4esat6 1 MR. DEMBER: Manuals to send overseas. Further 2 disclosure included a discussion of Osama bin Laden's alliance 3 with the al-Gama'a. 4 Membership in al-Gama'a al-Islamiyya. 5 Respondent testified at the remanded hearing, and part 6 of his testimony concerned his alleged affiliation with 7 al-Gama'a. The respondent spoke convincingly in opposition to 8 al-Gama'a. He spoke of his opposition to the culture of 9 violence and to the cycle of violence which the al-Gama'a 10 promotes. Respondent testified that he believes that the 11 al-Gama'a tactics are futile. Although the respondent admitted 12 his admiration for Sheikh Omar Rahman, who is generally 13 regarded as the spiritual leader of al-Gama'a, the respondent 14 adamantly denied any connection with al-Gama'a. 15 Among the documents submitted at the remanded hearing 16 were affidavits (Exhibits R-7-1, R-7-2 and R-5-5) and articles 17 (Exhibits R-5-6, R-5-7, R-5-8) describing the al-Gama'a. This 18 material was provided by both sides and the court found the 19 material to be very helpful. 20 Additionally, the respondent recalled Neil Hicks as a 21 witness. Mr. Hicks had testified during the initial 22 deportation proceedings in 1997 on the issue of country 23 conditions in Egypt. During the remanded hearing, Mr. Hicks 24 focussed on the al-Gama'a. Mr. Hicks explained that it is 25 important to draw a distinction between the "al-Gama'a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6756 4a4esat6 1 al-Islamiyya and the "al-Gama'at al-Islamiyya. The first is a 2 specific organization and its name may be translated as the 3 Islamic Group. The second is a collection of hundreds of 4 groups which are known loosely as "the Islamic Groups." The 5 Islamic Groups are not linked by any formal structure. Rather, 6 they are linked by a common outlook. Some of the constituent 7 groups within the al-Gama'at include groups engaged in 8 political opposition to the existing regime, which they oppose 9 as being insufficiently Islamic. Other parts of the al-Gama'at 10 are social welfare, health and community organizations. 11 Most of the organizations which form the Islamic 12 Groups are nonviolent. Millions of people may consider 13 themselves affiliated with the al-Gama'at. However, some 14 organizations within the Islamic groups are indeed violent, 15 i.e. terrorists. This distinction between the "al-Gama'a" and 16 the "al-Gama'at" is also reflected in the material provided by 17 the INS. (Exhibit R-5-8, page 46, footnote one). 18 The Court finds the distinction between al-Gama'a and 19 al-Gama'at to be an important concept in this case. According 20 to the testimony of Mr. Hicks, confusion of these two types of 21 organizations is common. Mr. Hicks pointed out that the 22 Egyptian government does not distinguish between the violent 23 and nonviolent supporters of al-Gama'at. Indeed, it would 24 appear that even the US State Department has blurred the 25 distinction in its designation of terrorist organizations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6757 4a4esat6 1 (see Exhibit R-5-9 "Gama'a al-Islamiyya, also known as Egyptian 2 al-Gama'at Al-Islamiyya.") Another vivid example of the 3 possibilities of confusion occurred at the remanded hearing 4 when a contract interpreter was disqualified after admitting 5 that she had failed to properly distinguish between al-Gama'a 6 and al-Gama'at. 7 Accordingly, the respondent's evidence was successful 8 in exposing the potential for -- 9 THE COURT: Was. 10 MR. DEMBER: Was successful in exposing the potential 11 for confusion regarding respondent's affiliations. A person 12 who admits that he associates himself with the Egyptian Islamic 13 Groups does not necessarily admit an association with the 14 violent organization called the Islamic Group. 15 Moreover, it is questionable that association with 16 al-Gama'a is sufficient to trigger the disqualification 17 provisions in the Act. In a similar context the Board of 18 Immigration Appeals has held that "mere membership in an 19 organization, even one which engages in persecution, is not 20 sufficient to bar one from relief but only if one's actions or 21 inaction furthers that persecution in some way. It is the 22 objective effect of an alien's actions which is controlled" 23 matter of Rodriguez-Majano, 19 I&N December 811 -- 24 THE COURT: Decision. 25 MR. DEMBER: I'm sorry, decision, D-E-C, 811, 814-15 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6758 4a4esat6 1 (BIA 1988). The evidence in this record, including classified 2 and nonclassified evidence, contains very little to show any 3 objective effect of the respondent's actions which pose a 4 danger to the nation. Indeed, some of the evidence suggests 5 that respondent's actions may have been effective in diffusing 6 potential dangerous situations. 7 THE COURT: Potentially. 8 MR. DEMBER: In diffusing potentially dangerous 9 situations. 10 April 15, 1996, message from Sheikh Rahman. 11 The declassified material provided to the respondent 12 shows that INS had presented evidence in camera implying that 13 the respondent carried a message from Sheikh Omar Rahman which 14 was published in the international press on April 15, 1996. 15 The material shows that three days after the publication of 16 that letter, 18 tourists were killed and 17 were wounded in 17 Cairo. (Exhibit 2-1, page three). 18 The central importance of these events can been 19 understood when it is observed that the respondent's bail was 20 revoked by the INS and respondent was taken into custody on 21 April 23, 1996. This chronology strongly suggests that concern 22 over the respondent's ability to convey messages from Sheikh 23 Rahman was the primary motivating factor in deciding to revoke 24 the respondent's bail. 25 Although concerns about the letter from Sheikh Rahman SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6759 4a4esat6 1 were disclosed to the respondent during the 1997 hearing, he 2 did not convincingly rebut those concerns until the remanded 3 hearing. 4 At the remanded hearing, the respondent provided 5 prison records to show that other people had contact with 6 Sheikh Rahman in the days and weeks preceding the publication 7 of the Sheikh's letter. Therefore, it is clear that many 8 people had the opportunity to convey Sheikh Rahman's letter. 9 Even more importantly, the respondent showed that the 10 letter of Sheikh Rahman was not related to the killing and 11 wounding of the tourists in Cairo. The respondent introduced a 12 document from the perpetrators of that incident (Exhibit 19). 13 That document clearly states that the purpose of the 14 "operation" was to avenge Israeli actions in Lebanon. 15 The authenticity of the document was confirmed in an 16 affidavit from Mohammed Yousry (Exhibit 13) who obtained the 17 document from the executive director of the Egyptian human 18 rights organization, Hisham Mubarak (Exhibit R-13). 19 Mr. Mubarak is the author of an INS exhibit (Exhibit R-5-8) and 20 would appear to be a reliable source of information concerning 21 specific acts of terrorism in Egypt. 22 The conclusion that Sheikh Rahman's letter had no 23 connection with the attack on the tourists in Egypt is 24 underscored by the affidavit of Christopher W.S. Ross, 25 coordinator for counterterrorism in the US Department of State, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6760 4a4esat6 1 who appears to accept the authenticity of Exhibit 19. "The 2 (al-Gama'a) claimed responsibility for the attack in a fax 3 dated April 19 explaining that it thought the Greeks were 4 Israeli tourists. The attack was in retaliation for fighting 5 occurring in southern Lebanon at the time." (Exhibit R-5-5, 6 paragraph 23). 7 The implication that respondent's actions were 8 connected to the attack on Greek tourists in Cairo on April 18, 9 1996, appears to have provided the motivation for respondent's 10 detention without bail by the INS. The respondent thoroughly 11 discredited the disconnection through evidence presented during 12 the remanded proceedings. This aspect of the case alone would 13 justify reconsideration of the Court's prior finding that 14 respondent was a threat to national security. 15 Bomb making materials. 16 The INS disclosed that the classified information 17 includes evidence that the respondent "made efforts to obtain a 18 bomb-making manual to send overseas." At the remanded hearing 19 respondent acknowledged that he did, indeed, obtain a 20 bomb-making manual. He described the document as appearing to 21 be professionally printed and to be a type of CIA document in 22 the Arabic language. He described the document as being more 23 of a guerilla warfare manual than a simple bomb-making manual. 24 The respondent explained that the document was given to him by 25 an attorney, Clover Barrett, who needed the document translated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6761 4a4esat6 1 in connection with the trial of an accused terrorist. 2 Ms. Barrett corroborated this story in her testimony at the 3 remanded hearings. The respondent also testified that he had 4 access to bomb-making manuals when he worked as a paralegal and 5 translator for Sheikh Rahman during his federal trial for 6 seditious conspiracy. 7 It would appear that the respondent had access to 8 these materials -- 9 THE COURT: Manuals. 10 MR. DEMBER: I'm sorry, access to these manuals 11 properly in the course of his work for the federal courts. 12 There is no public evidence that the respondent made any 13 attempt to copy or to send any of these manuals overseas. As 14 discussed in the classified attachment, the classified evidence 15 is not sufficient to warrant a finding that the respondent 16 attempted to send the manual overseas. Accordingly, I find 17 that this aspect of the INS case does not support a finding 18 that the respondent is a threat to national security. 19 Threats against Sheikh Al-Sharif. 20 On remand, much of the Court's time and energy was 21 taken in consideration of the politics of the Abu Bakr Mosque 22 in Brooklyn, New York. This is not altogether inappropriate 23 since it appears that the highly contentious atmosphere at the 24 mosque serves as a backdrop and a reference point for this 25 case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6762 4a4esat6 1 The basic outline of the doctrinal struggles at the 2 mosque were set out in the Court's 1997 decision. At the 3 remanded hearing, the respondent elaborated on the mosque's 4 history and his part in it. He called two influential mosque 5 members as witnesses. Additionally, both sides expressed a 6 desire to call the present iman of the mosque, Sheikh 7 Al-Sharif, as a witness. By agreement of the parties, Sheikh 8 Al-Sharif was considered an INS witness and he testified at 9 length, subject, of course, to cross-examination by the 10 respondent. 11 The recent history of the mosque which emerges from 12 the testimony and the legal documents is extremely contentious. 13 According to the respondent's witnesses the mosque was founded 14 in early 1970s. By the late 1980s, when the respondent joined, 15 the mosque had become somewhat moribund. The respondent became 16 very active in the mosque's affairs and is credited with 17 helping revive the mosque. 18 In the early 1990s the mosque became affiliated with 19 Sheikh Omar Rahman. "He was a member of the (al-Gama'a) in 20 1980-1986. However, in 1989 he left the group and in the same 21 year he left Egypt. While he is sometimes referred to as the 22 group's "spiritual leader," the best evidence is that he is not 23 the group's leader and, in fact, has no role in the group's 24 activities." (Exhibit R-7-2 paragraph 4). 25 Respondent has acknowledged unequivocally that he is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6763 4a4esat6 1 supporter of Sheikh Rahman and respects him as a true Islamic 2 scholar. Despite Sheikh Rahman's conviction in the United 3 States, the respondent continues to believe in the Sheikh. The 4 respondent testified that he has never heard Sheikh Rahman make 5 any statements supporting retaliation gets the United States. 6 In 1995 Sheikh Al-Sharif was invited to come to 7 Brooklyn from Egypt to be the iman at the Abu Bakr Mosque. 8 Initially Sheikh Al-Sharif was hired for a period of three 9 months. Soon, he and the respondent fell into conflict. The 10 respondent objected to Sheikh Al-Sharif visiting the Egyptian 11 consul in New York. According to the respondent's witness, 12 Mohammed El-Zogby, Sheikh Al-Sharif met with an Egyptian 13 security officer at the consulate. Also, the witness claimed 14 that the Sheikh sent a congratulatory cable to Hosni Mubarak 15 and signed the witness' name. Sheikh Al-Sharif acknowledged 16 that he does indeed visit the Egyptian consulate. He stated 17 that he goes with members of the congregation for business and 18 marital matters. 19 At one point the board of directors of the mosque of 20 which the respondent was the secretary decided to terminate 21 Sheikh Al-Sharif's employment. The respondent was the officer 22 who delivered the termination notice to the Sheikh. However, 23 Sheikh Al-Sharif refused to be terminated. In June of 1998 a 24 successor board (not including the respondent, who is unable to 25 serve because of his detention) also tried to terminate Sheikh SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6764 4a4esat6 1 Al-Sharif's employment. Nevertheless, he remains the iman at 2 the Abu Bakr Mosque. Multiple court proceedings have addressed 3 the continuing internecine struggle for control of the mosque, 4 which appears to continue unabated and undiminished at the 5 present time. 6 Sheikh Al-Sharif has alleged that the respondent 7 admitted that he was a member of al-Gama'a and that respondent 8 passed out literature favoring al-Gama'a. Footnote four. 9 Copies of the literature were not offered as evidence. 10 Back to the body of the document. Further, Sheikh 11 Al-Sharif claimed that the respondent threatened him and his 12 family back in Egypt. 13 It is obvious that there is a bitter and implacable 14 conflict between the respondent, who supports the chief 15 religious opponent of the present Egyptian government, and 16 Sheikh Al-Sharif, who appears to have regular contact with the 17 Egyptian government representatives in New York. 18 Sheikh Al-Sharif testified that his immigration status 19 in the United States is dependent on the approval of an 20 employment-based petition which is pending before the INS. If 21 he is not employed by the mosque, the petition will be deemed 22 withdrawn and, it seems, he will have no way to remain legally 23 in this country. Sheikh Al-Sharif's interest in employment by 24 the mosque and his interest remaining in the United States 25 would be threatened by respondent's release from INS custody. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6765 4a4esat6 1 Sheikh Al-Sharif has a substantial interest in seeing 2 that the respondent remains in INS custody and that he is 3 deported from the United States. Accordingly, Sheikh Al-Sharif 4 is considered by this Court to be seriously prejudiced against 5 the respondent, highly interested in the outcome of this case. 6 He appears to be under the control of the INS, which holds his 7 future immigration status in its hands. Under these 8 circumstances, I cannot give substantial weight to testimony of 9 Sheikh Al-Sharif regarding the actions of the respondent. 10 Additionally, I find that the internal affairs of the 11 mosque do not implicate any legitimate national security 12 concerns of the United States. If indeed the parties in the 13 mosque's struggles hurl insults and threats at each other, it 14 would seem that the matter could be adequately handled by the 15 criminal or civil court system in Brooklyn, New York. 16 THE COURT: We're just about at 4:30 so why don't we 17 break there for the day. 18 Ladies and gentlemen, we're going to break for the 19 day. Please, please remember to follow all of my instructions 20 very carefully. Please, don't talk about this case at all, 21 among yourselves or with anyone when you go home this evening. 22 Please, don't look at, listen to, read anything to do with the 23 case. If inadvertently you should see or hear something to do 24 with the case, please, just turn away. 25 As I've told you repeatedly, you sit here in the court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6766 4a4esat6 1 all day. You listen to all of the evidence that is relevant 2 for your consideration. You have the best opportunity to see 3 and hear everything that is relevant to your decision. And so, 4 please, don't look at, listen to anything to do with the case. 5 If you should see or hear something and you're outside of 6 court, simply turn away. 7 And remember, as I've told you repeatedly, it's so 8 important, remember to keep an open mind until you've heard all 9 of the evidence, I've instructed you on the law and you've gone 10 to the jury room to begin your deliberations. Fairness and 11 justice to the parties requires that you do that. 12 With all of those instructions, I wish you a very good 13 evening, and I look forward to seeing you tomorrow morning at 14 9:30. Have a good evening. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6767 4a4esat6 1 (In open court; jury not present) 2 THE COURT: All right. Please be seated all. 3 I said I would let you all out at 4:30 and it's just 4 about 4:30. Have a good evening. Please be here at 9:00 5 tomorrow morning in case there's anything that comes up. And 6 I'll see you tomorrow morning. 7 Good evening. 8 (Adjourned to Tuesday, October 5, 2004, at 9:00 a.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6768 1 INDEX OF EXAMINATION 2 Examination of: Page 3 Cross By Mr. Tigar . . . . . . . . . . . . . 6630 4 GOVERNMENT EXHIBITS 5 Exhibit No. Received 6 2628, 2626, 2612, 2611, 2627, 2619, 2622, 7 2666, 2620, 2671 and 2634. . . . . . . . . . 6726 8 2625, 2630, 2623 and 2624 . . . . . . . . 6725 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300