7959 4B35SAT1 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 November 3, 2004 8 9:20 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 A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 (Pages 7960-7961 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7962 4B35SAT2 1 (In open court) 2 THE COURT: Good morning, all. 3 We have a new marshal who will be standing in for 4 Daniel over the next few weeks and I have asked him to 5 introduce himself to the parties so that they'll know who he 6 is. 7 I have correspondence from the government asking for 8 an instruction and a response from Ms. Stewart. I am prepared 9 to listen to the parties. I am also prepared to tell you what 10 my views are at this point. 11 So, it is the government's request for an instruction. 12 Ms. Stewart submitted something in opposition. I said it might 13 expedite things if I gave you my initial reaction but, again, I 14 am perfectly prepared to listen to the parties. 15 I am not inclined to give the proposed instruction at 16 this time. This instruction is a part of the instructions that 17 the Court should consider in the context of the elements of 18 defenses including the mental state and any defenses. 19 The instruction should not be given in isolation from 20 the other instructions and of course when the Court gives its 21 instructions, the Court will explain to the jurors that they 22 should consider the instructions as a whole. This is not a 23 case where there has been some misconduct that has occurred 24 which needs correction or where some limiting instruction is 25 required, in my view, at this time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7963 4B35SAT2 1 The Court, at an earlier point, as the government 2 points out in its memo, raised the issue of Cheek and both the 3 defense and the government cite Cheek, indeed the government I 4 believe cited it in the context of request to charge -- and 5 there are various parts of Cheek. This is not an income tax 6 case so there are various parts of Cheek and parties look to 7 various parts of Cheek. 8 The Court raised this issue. The Court raised the 9 issue of the unavailability of defense that the SAMs were 10 unconstitutional or invalid, and the Court raised it before the 11 testimony so that the parties were aware of the issue so that 12 the parties were fully aware of all of the issues that were out 13 there before the testimony was given. 14 The testimony actually from the first defendant to 15 testify is not completed and the testimony is what it is and 16 the jury will have to assess it in accordance with my 17 instructions on the law. 18 And of course the parties will have the opportunity to 19 make any arguments they wish at the charging conference. 20 The only basis for this mid-trial instruction that I 21 see in the government's memorandum, is the government's 22 statement that "there is now enough in the record for the jury 23 to be wondering about the issue, which they should not." 24 Government letter at page 13. 25 But the jury has already been told repeatedly to keep SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7964 4B35SAT2 1 an open mind until I have instructed them on the law, and this 2 instruction logically belongs with the other instructions on 3 the elements of the offenses and any defenses. Therefore, I 4 would not be inclined to give the instruction at this time. 5 And as I said, I am perfectly prepared to listen to 6 the parties. 7 MR. BARKOW: Your Honor, we have nothing to say at 8 this point. 9 MR. TIGAR: We don't have anything to say either. 10 THE COURT: Okay. 11 THE COURT: Let me talk to the parties at the side 12 bar. 13 (Page 7965 SEALED by order of the Court) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7966 4B35SAT4 1 (In open court) 2 THE COURT: Bring in the jury. 3 (Jury present) 4 THE COURT: Good morning, ladies and gentlemen. 5 THE JURY: Good morning. 6 THE COURT: It is good to see you all. 7 Ladies and gentlemen, just one other scheduling issue. 8 We are going to break today at 2:00, and so we are going to try 9 and have lunch for you at 12:15 and do a slightly shorter lunch 10 to be able to get you out at 2:00. 11 With that, Ms. Stewart is on the stand. 12 Mr. Fletcher? 13 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 14 are still under oath. 15 THE WITNESS: Yes. 16 LYNNE STEWART, resumed 17 THE COURT: Mr. Tigar, you may proceed. 18 DIRECT EXAMINATION (continued) 19 BY MR. TIGAR:: 20 Q. Ms. Stewart, back in that time when you were trying the 21 case, Sheikh Omar Rahman's case, did journalists ask you your 22 views about your personal views about violence? 23 A. They did, yes. 24 Q. And what did those questions make you think? 25 A. Well, at first I was somewhat surprised because, you know, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7967 4B35SAT4 Stewart - direct 1 I have done a lot of cases that involved a certain level of 2 violence and my personal views were never at issue. But 3 because I'm the lawyer it's not about my personal views, it is 4 about what happened, what could be the motive, etc., that led 5 to violence, perhaps. 6 But it is not about the lawyer's personal take on it. 7 Q. Do you remember talking to Joe Fried of the New York Times 8 in that mid-1995 period, and him asking you about your own 9 views about violence? 10 A. Yes, I do. I think Mr. Fried was covering the case for the 11 Times and he did a piece, something, I think, maybe in May or 12 June of 1995. 13 Q. Do you remember about what you said to him in answer to his 14 question on that subject? 15 A. Yes. I actually looked that over today before I testified 16 and I said to him that I was -- my political view is I am a 17 revolutionary with a small R, that I do believe that basic 18 change is necessary. 19 I think some of it will be accomplished nonviolently 20 such as the fact that my granddaughter now plays NCAA 21 basketball and maybe can play in Madison Square Garden someday. 22 That revolution happened nonviolently. 23 But I think to rid ourselves of the entrenched 24 voracious type of capitalism that is in this country that 25 perpetuates sexism and racism, I don't think that can come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7968 4B35SAT4 Stewart - direct 1 nonviolently. 2 And I think I said to Mr. Fried that I was against 3 anarchistic violence, meaning by that the kind of violence that 4 is not supported by the majority of the people. I'm talking 5 about a revolution of the people that overthrows institutions. 6 Q. Do you support terrorist violence? 7 A. No, because it's basically anarchistic. It is not directed 8 against institutions or -- it is directed against civilians and 9 therefore it cannot be excused. Those are not legitimate 10 targets. 11 But this is my personal view, once again. 12 Q. Ms. Stewart, directing your attention to the period 1999 13 through 2000, did you believe that there was a conspiracy that 14 involved Mr. Sattar, this fellow Taha and others, to kill or 15 kidnap people in a foreign country? 16 A. No, I did not. 17 Q. And, directing your attention to that time, did you want to 18 make your client, Sheikh Omar Abdel Rahman, available to any 19 conspiracy to kill or kidnap people? 20 A. Absolutely not. 21 Q. Ms. Stewart, have you read the indictment? 22 A. I have. 23 Q. What do you say? 24 MR. DEMBER: Objection, your Honor. Vague. 25 THE COURT: I'm sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7969 4B35SAT4 Stewart - direct 1 MR. DEMBER: Vagueness, your Honor. What did she say. 2 THE COURT: Sustained as to form. 3 Q. Ms. Stewart, are you guilty or not guilty? 4 A. Emphatically not guilty. 5 MR. TIGAR: No further questions. 6 MR. DEMBER: May I have a moment, your Honor? 7 THE COURT: Yes. 8 MR. DEMBER: Your Honor, may I proceed? 9 THE COURT: Yes, Mr. Dember. You may proceed. 10 DIRECT EXAMINATION 11 BY MR. DEMBER: 12 Q. Good morning, Ms. Stewart. 13 A. Good morning, Mr. Dember. 14 Q. Ms. Stewart, you have been an attorney now for 15 approximately 30 years, is that correct? 16 A. Approximately, yes. 17 Q. As you told us during your direct testimony, you consider 18 yourself a good lawyer, do you not? 19 A. Yes. 20 Q. And I think you've told us in your testimony that others in 21 your community have led you to believe that are you a good 22 lawyer as well, apart from your own view of yourself, is that 23 correct? 24 A. I have some warts but, yes, basically that's true. 25 Q. Is it also fair to say, certainly for most of your career SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7970 4B35SAT4 Stewart - cross 1 you would be what we consider, like many of us here, a 2 courtroom lawyer, a litigator? Is that right? 3 A. Yes. 4 Q. And you have practiced in federal courts and state courts 5 of this country as well, is that correct? 6 A. That's right. 7 Q. And you have argued cases in those courts and defended 8 clients in those courts, is that correct? 9 A. I have. 10 Q. By the way, what percentage -- over the last, let's say 11 seven years or so of your practice, what percentage of your 12 practice was representing people in federal court versus state 13 court? Particularly your criminal defense work. 14 A. I would say it was pretty evenly divided maybe 60/40 -- 60 15 percent being state court, 40 percent being federal. 16 Q. And when you say state court, is most of your work done 17 here in the State of New York? 18 A. Yes. 19 Q. And particularly in the City of New York? 20 A. Yes. 21 Also, I do also practice in New Jersey however, but 22 that is a minor part of the practice. 23 Q. I think you indicated you're licensed to practice in New 24 Jersey as well as New York? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7971 4B35SAT4 Stewart - cross 1 Q. And obviously in the federal courts as well? 2 A. Yes. 3 Q. Any other states? 4 A. I'm admitted in some federal places like the Western 5 District of Texas and Middle District of Florida but I wouldn't 6 say I practiced there. I have appeared in cases there. 7 Q. Now, Ms. Stewart, would you agree with the proposition that 8 it is the job of a lawyer, like yourself, or any lawyer, where 9 appropriate, in representing a client to challenge the laws, 10 rules, restrictions, regulations that might be imposed upon a 11 client? 12 A. Well, I think it depends what you mean by challenge. I'm 13 not sure exactly what you mean by that but I think that in 14 assessing a case when a lawyer first takes on a case, one looks 15 at the law under which the client is charged and, if 16 appropriate, challenges the law itself or raises issues with 17 regard to that law. 18 Q. Well, I'm speaking more in terms of making legal 19 challenges. In other words, if you have a client who you 20 believe is under restrictions or regulations you believe to be 21 inappropriate or improper under the law, do you believe it is 22 your responsibility as a lawyer in representing those clients 23 to challenge those laws or rules? 24 A. It's a decision that's made with the client and I think 25 it's also made based upon the conditions as they exist at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7972 4B35SAT4 Stewart - cross 1 time. It's not just a straight out I think it is wrong and 2 let's trot into court. It has a lot of things to be 3 considered. Finances, everything has to be considered in 4 making that kind of a decision. 5 Q. By the way, when you say finances you mean if a client 6 can't pay your fee you may not go to court and make certain 7 legal challenges that you might make if in fact he can pay your 8 fee? 9 A. I don't think it's fee so much as it is all the small 10 things that you need to bring a lawsuit, especially conditions 11 or a lawsuit that challenges a law. 12 It is very hard to be, in this day and age, a 13 one-woman band if you will. By that I mean there are law 14 students for research, there is -- there may be experts that 15 need to be called. 16 There is just a host of expenses. And it's one thing 17 to say I'll do this as a lawyer for free and I've said that 18 many times. It is another thing to say I will take money out 19 of my pocket to pay the doctor to come in to evaluate these 20 medical records. 21 Q. So, would it be fair to say that you don't believe you're 22 ethically obligated to necessarily file the challenge to a rule 23 or regulation that you find fault with if a client essentially 24 can't pay and you can't afford not to go ahead and to file such 25 a lawsuit or make such a challenge legally? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7973 4B35SAT4 Stewart - cross 1 A. I don't think you're ethically obligated if you cannot 2 present the client's case in an effective and reasonable way. 3 I probably do more pro bono work than almost any 4 lawyer in the city where it can be done effectively. I not 5 only volunteer myself but my whole staff, as a fact. Where it 6 can't be done effectively, in other words where it requires 7 investigation or it would require staying in a foreign city -- 8 when I say foreign I don't mean foreign-foreign, I mean like 9 another state, travel. All of those things. 10 If it can't be done effectively then ethically I don't 11 think you're obligated to bring such a case. And, indeed, the 12 rules of ethics may militate against it. You are not supposed 13 to bring cases to lose them. 14 Q. Well, certainly if you thought you had a winning case and 15 you had a client who is perhaps prejudiced by restrictions or 16 regulations placed upon the client and you thought you had a 17 winning case, would you bring it even if you were not getting 18 paid? 19 A. I guess I'm not sure it would be a winning case. 20 Q. In your mind. A winning case in your mind. 21 A. In my mind. It might not be a winning case if it can't be 22 done effectively. 23 As I said, it is not about my fee as much as it is 24 about whether or not the case can be presented in a court of 25 law so as to be seen in all its various facets effectively. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7974 4B35SAT4 Stewart - cross 1 We're not allowed to ineffectively assist our clients. 2 Q. Ms. Stewart, in terms of representing a client though, in 3 representing a client do you not believe it's your obligation, 4 your duty to raise defenses for a client that you would think 5 would be successful? Which you believe would be successful? 6 A. Are we talking about defenses such as during a criminal 7 trial? 8 Q. During a criminal trial, sure. 9 A. Yes, definitely. Absolutely you raise every defense that 10 you think was grounded in the facts and the law that you can 11 raise. 12 Q. And that includes not just a defense in front of a jury but 13 legal defenses, challenges to statutes, for example? 14 A. Yes. 15 Q. Now, let me, instead of talking in generalities let's talk 16 a little bit about our case here, okay? 17 Ms. Stewart, your client, Mr. Abdel Rahman, which I 18 think you've testified, was housed for a period of time at the 19 federal medical center in Rochester, Minnesota, is that right? 20 A. That's right. 21 Q. And I believe you told us that you made three separate 22 visits to him when he was there, is that right? 23 A. I think it may have been more than that but I will agree to 24 three. I think there were four, actually. 25 Q. And do you recall -- do you recall that he was housed there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7975 4B35SAT4 Stewart - cross 1 starting in 1998? Is that about your recollection? 2 A. I actually thought it was '97 but you may be right. The 3 years are sort of telescoping for me here. 4 Q. And, do you recall he was there into 2002? The year 2002? 5 A. Yes. 6 Q. Which is, roughly, a four-year period; is that right? 7 A. Yes. I think he may have only been there 2001. I think he 8 got moved after 9/11 but, as I said, I'm not positive of that 9 either. 10 Q. During that entire time he was under the Special 11 Administrative Measures, the SAMs that we have been talking 12 about throughout this trial, is that right? 13 A. He was. 14 Q. In fact, since April of 1997 and up until certainly the 15 time that you stopped representing him, he was always under 16 Special Administrative Measures, was he not? 17 A. He was. 18 Q. And at various times those various measures were changed a 19 bit. In other words, there might be new conditions, conditions 20 or parts of the SAMs, the measures might be amended slightly, 21 changed, added, that sort of thing. Is that correct? 22 A. There was some minor changes, yes. 23 Q. Is it fair to say during that four-year period when Abdel 24 Rahman was in the Rochester facility, you never filed any legal 25 challenges in court to the regulation that we have talked about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7976 4B35SAT4 Stewart - cross 1 that helped create the Special Administrative Measures? Is 2 that right? 3 A. That is correct. 4 I'm not sure if the suit that Mr. Clark brought in 5 Springfield contained a challenge but, as we know, that was 6 abandoned when he was moved to Rochester. 7 Q. Also, you never, during that four-year period when Abdel 8 Rahman was housed in Rochester, you never filed any kind of 9 legal challenge to the validity of the Special Administrative 10 Measures, is that correct? 11 A. That's correct. I think you and I both heard that 12 discussion on the tapes about how the time wasn't right and 13 perhaps we were waiting for retainer so that we could indeed 14 put together a team that could handle a conditions lawsuit of 15 this magnitude. 16 Q. And you never, during the time that Abdel Rahman was housed 17 at the Rochester facility, ever filed a legal challenge to the 18 requirement that you personally had to sign an attorney 19 affirmation promising that you would abide by each and every 20 provision of the Special Administrative Measures, did you? 21 A. No, I never did. 22 Q. And I think you told us in your testimony that you never 23 filed a lawsuit challenging the conditions of Abdel Rahman's -- 24 the conditions of confinement under which he lived at the 25 federal medical center in Rochester, did you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7977 4B35SAT4 Stewart - cross 1 A. No, I never did. 2 Q. But much of what we heard through the tapes, as you've 3 testified to last week, you frequently talked to various people 4 about the fact that you were going to file such a suit, is that 5 right? 6 A. That is right. 7 Q. You talked to your client about it and you told him you 8 were going to do that? Is that right? 9 You talked to Warden Reese, who was one of the wardens 10 who was at Rochester during part of the time, a warden for part 11 of the time your client was at the facility as well, is that 12 right? 13 A. That's right. 14 Q. And you mentioned to her when you talked to her that you 15 were also going to be filing a lawsuit, is that correct? 16 A. That we were prepared to file, yes. 17 Q. And, in fact, at various times you sent correspondence to 18 the warden at Rochester indicating that you needed to have a 19 visit with your client and one of the main reasons being that 20 you had to prepare to file this lawsuit challenging his 21 conditions of confinement at that facility. 22 Is that right? 23 A. It was always on our to-do list. Unfortunately, it never 24 happened. 25 The reasons, as I explained to you a little earlier, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7978 4B35SAT4 Stewart - cross 1 were the time, place and condition did not warrant our being 2 able to do it. I wish we had. 3 Q. Now, I think you told us, by the way, that there were 4 certain kinds of forms that a lawyer or inmate would need to 5 file before actually instituting a lawsuit challenging the 6 conditions of confinement, is that right? 7 A. That's right. 8 Q. And you refer to those as BP-9s, is that right? 9 A. Yes. 10 Q. That's a Bureau of Prisons, a Federal Bureau of Prisons 11 form, is that right? 12 A. That is the form that inmates use to detail their complaint 13 and ask for relief from the prison itself; yes. 14 Q. And there is actually a procedure involved once that form 15 is filled out, is that correct? 16 A. Yes. 17 Q. The inmate or somebody on his behalf would complete such a 18 form and serve it or file it on the institution itself, the 19 prison itself; is that right? 20 A. My experience with BP-9s has been that they're done 21 internally. It means that the inmate who is your client fills 22 out this complaint. I don't believe counsel even appears or 23 has anything to do with the resolution of the complaint on 24 either the initial level in the jail or the secondary level, 25 which is still within the Bureau of Prisons. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7979 4B35SAT4 Stewart - cross 1 But it's basically filled out, it's a form that's 2 filled out in which a person details the complaint that they're 3 having whether it's mail or whatever it may be. 4 Q. And it's resolved within the facility itself at first, is 5 that right? 6 A. I believe it first goes to the local facility. Facility 7 in-house, yes. 8 Q. And is it not your understanding that if a facility 9 essentially decides against the inmate, there is an appellate 10 process within the Bureau of Prisons, the inmate can appeal the 11 decision made at the individual prison, is that right? 12 A. Yes. 13 Q. And there is a multi-step process or appellate level 14 so-to-speak so that an inmate can appeal not only to an 15 immediate authority but even a higher authority as well, is 16 that right? 17 A. Yes. It doesn't always work as neatly as we laid out here, 18 but in large time-consuming gaps and loss of papers it's a 19 fairly -- I don't want to say sloppy but it's -- it's not the 20 best regulated system. Let's put it that way. 21 Q. In any event, you've told us that in order to file a 22 lawsuit in federal court challenging Rahman's conditions of 23 confinement you would be first required to go through that 24 procedure, is that right? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7980 4B35SAT4 Stewart - cross 1 Q. That's what we call exhausting administrative remedies? 2 A. Yes; giving the Bureau of Prisons a chance to change the 3 conditions that are complained of before we trouble the courts. 4 Q. So, before you could ever go to court you first have to 5 take those steps? 6 A. Yes. 7 Q. Now, an inmate who may not even be interested in filing a 8 civil lawsuit and going all the way to court still could use 9 these BP-9 forms to try to change his or her conditions of 10 confinement, is that right? 11 A. An inmate who is sighted and speaks English, yes, they 12 could do it themselves. 13 Q. In other words, you don't have to fill out those forms and 14 then automatically be required to file a lawsuit, is that 15 right? 16 A. No, you are not required to file a lawsuit. 17 Q. If you have a complaint you can take it to the Bureau of 18 Prisons, take it through the steps that we just talked about 19 briefly, and try to get those conditions changed internally, is 20 that right? 21 A. Yes. 22 Q. There is no requirement that you then, if you don't 23 succeed, file a lawsuit, right? 24 A. That's true. 25 Q. Now, obviously Mr. Rahman is blind, doesn't speak English SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7981 4B35SAT4 Stewart - cross 1 particularly well or very much at all, is that right? 2 A. That's right. 3 Q. Certainly you were aware of the process, is that correct? 4 This particular process? 5 A. Yes. We had gone through the process actually at 6 Springfield. 7 Q. At Springfield. 8 My question then -- and that's prior to filing the 9 lawsuit in Springfield, is that correct? 10 A. That is correct. 11 Q. You actually never went through the process at Rochester, 12 did you? 13 A. No. 14 Q. You never filled out the forms on behalf of your client and 15 submitted them to the Bureau of Prisons to try to at least 16 internally get some of those conditions changed, did you? 17 A. No. I think we were not overly pessimistic but the reality 18 of the situation was that those regulations came from your 19 office here in New York from Pat Fitzgerald and Rochester was 20 not about to change them. I mean, we had asked for certain 21 changes, even the time of calls, the place of calls, and we 22 never got any concession whatsoever just requesting it from the 23 prison. 24 I'm not talking about the formal procedure. You're 25 right, we never did the formal procedure. But talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7982 4B35SAT4 Stewart - cross 1 making a phone call and saying could we do this instead of that 2 having a phone call in the afternoon instead of the morning, we 3 were never able to get any concession from the prison 4 officials. 5 Q. Well, Ms. Stewart, your complaints about Mr. Rahman's 6 conditions were not just limited to the restrictions placed in 7 the Special Administrative Measures, were they? You had other 8 complaints beyond those restrictions, didn't you? 9 A. Yes. But I think most of them occurred because of the 10 tremendous isolation in which he was held and that, of course, 11 was part and parcel of the SAMs. 12 So, a removal from prison population, his inability to 13 attend religious services, all of that stemmed from the 14 underlying reasons why the government thought the SAMs were 15 appropriate. 16 Q. By the way, you just mentioned just a moment ago, I think, 17 that the SAMs, the Special Administrative Measures came from 18 Pat Fitzgerald, did you not? 19 A. Yes. 20 Q. He didn't authorize those Special Administrative Measures, 21 did he? 22 A. I was under the impression that he played a large role in 23 authorizing them, yes. 24 Q. Well, isn't it a fact that the attorney general of the 25 United States, Janet Reno, was the one who authorized the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7983 4B35SAT4 Stewart - cross 1 imposition of Special Administrative Measures on your client? 2 A. Yes. My understanding was that she signed off on it but 3 that actually it was at his request and at his urging that she 4 did so. 5 Q. She was the, at the time, the attorney general of the 6 United States, was she not? 7 A. Yes. 8 Q. She was the highest ranking legal officer in the federal 9 government at the time, is that not right? 10 A. Yes. 11 Q. She doesn't work in the United States Attorney's office in 12 the Southern District of New York, does she? 13 A. No. 14 Q. No. 15 She is in Washington, is that right? 16 A. That's right. 17 Q. And is it fair to say, or fair to assume, that there were 18 others under her in the Department of Justice in Washington who 19 actually reviewed these Special Administrative Measures and 20 approved them? It wasn't merely herself, she had advice from 21 counsel in Washington, wouldn't you believe that? 22 A. I couldn't answer that question. 23 I know that the head of the Bureau of Prisons, 24 Kathleen Hawk, had some input into it. I don't know whether I 25 learned that until when this case was actually brought. But I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7984 4B35SAT4 Stewart - cross 1 don't know whether Janet Reno consulted with counsel or not. 2 Q. You mentioned Ms. Hawk, let's talk about her for a minute 3 because you say she had some input. 4 She was the director of the Bureau of Prisons at the 5 time these SAMs were put in place against your client and 6 during most of the times he was under the SAMs or has been 7 under the SAMs, is that correct? 8 A. I believe so. 9 Q. She is the director of the Federal Bureau of Prisons, 10 correct? 11 A. That's correct. 12 Q. And she's headquartered in Washington, D.C., is that right? 13 A. That's right. 14 Q. She didn't work in the U.S. Attorney's office for the 15 Southern District of New York, did she? 16 A. No. 17 Q. In fact, you mentioned Pat Fitzgerald. Pat Fitzgerald, to 18 your knowledge, was an assistant United States Attorney, was he 19 not? 20 A. He was. 21 Q. And you are familiar with the U.S. Attorney's office over 22 the years. You dealt with the U.S. Attorney's office in the 23 Southern District of New York, haven't you? 24 A. I have. 25 Q. And it is a, an office, perhaps like other government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7985 4B35SAT4 Stewart - cross 1 offices with layers of superiors and bosses, is that correct? 2 A. I never worked there but I will take your word for it. 3 Q. Well, Ms. Stewart, you certainly handled many cases with 4 our office, did you not? 5 A. Yes. 6 Q. And you knew that there is, the office consists of two 7 different divisions, a criminal division and a civil division? 8 A. Yes. 9 Q. And you knew, did you not, that there was a chief of the 10 criminal division? 11 A. Yes, I guess so. I'm not sure how he fits in or she fits 12 in but there is a chief. 13 Q. You certainly knew that the top person, the essential boss 14 of the United States Attorney's office and of any United States 15 Attorney's office in the country is the assigned United States 16 Attorney for that district, is that correct? 17 A. Yes. 18 Q. And you certainly knew during the time that Mr. Fitzgerald 19 was in the office and dealing with Special Administrative 20 Measures that he answered to, at the very least, the United 21 States Attorney, did he not? 22 A. Oh, yes. 23 Q. And you knew who that United States Attorney was, did you 24 not? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7986 4B35SAT4 Stewart - cross 1 Q. And that person's name was Mary Jo White, is that correct? 2 A. That's correct. 3 Q. And you knew that name, did you not? 4 A. I knew that name, yes. 5 Q. You knew that name very well, did you not? 6 A. I knew it well. I don't know very well. 7 Q. You were very familiar with the name? 8 A. I knew the name. 9 Q. Nobody had to tell you who the United States Attorney was 10 for the Southern District of New York? 11 A. No. 12 Q. Well, did you ever call up the United States Attorney, Mary 13 Jo White, and attempt to get an audience with her to talk about 14 these Special Administrative Measures? 15 A. No, I never attempted to get an audience with Mary Jo 16 White. 17 Q. Did you ever write to Ms. White and essentially complain or 18 set out your position with respect to the Special 19 Administrative Measures? 20 A. No, I never did. 21 Q. Did you ever write to Janet Reno or call, try to call Janet 22 Reno to talk to her about these restrictions that had been 23 placed on your client? 24 A. No, I never did. I'm not sure about Mr. Clark but I know I 25 never did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7987 4B35SAT4 Stewart - cross 1 Q. I'm asking you. 2 A. No, I never did. 3 Q. Well, did you ever call Ms. Hawk at the Bureau of Prisons 4 and talk to her about these Special Administrative Measures? 5 A. No, I never did. 6 Q. By the way, at the time that the Special Administrative 7 Measures were put in place, besides having the title of the 8 Assistant United States Attorney, did you know what other 9 position Mr. Fitzgerald had in the office at that time? 10 A. That would be 1997? 11 Q. 1997, 1998. During the period of time he was at Rochester. 12 A. I knew he was at some point the head of the terrorism unit 13 in the office however it had a longer name than that. I'm not 14 sure but I knew that he was -- he was the top person in that 15 office. 16 Q. That was at some point in time? 17 A. Yes. 18 Q. That wasn't when the Special Administrative Measures first 19 came into being, was it? 20 A. It may have been. I'm not really certain that I followed 21 his career that closely. 22 Q. Now, let's change topics, shall we? Let's talk about your 23 client's trial. 24 I believe you told us last week that before you came 25 into the case to represent Abdel Rahman he originally had two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7988 4B35SAT4 Stewart - cross 1 lawyers representing him, is that correct; Mr. Kuby and 2 Mr. Kunstler? Or one of them? 3 A. That's right. I believe it was both of them. 4 Q. Okay. 5 And at some point in time, for legal reasons, they had 6 to be relieved from the case, is that right? 7 A. That's correct. 8 Q. And you told us after that that Abdel Rahman was 9 represented -- represented himself -- what we call pro se -- is 10 that right? 11 A. Yes. I understood that was Mr. Kunstler's recommendation 12 to him. 13 Q. Well, did you understand that in fact the Court had 14 assigned him a lawyer to represent him after Mr. Kunstler and 15 Mr. Kuby were removed or relieved? 16 A. I know he had a legal advisor. I don't know whether that 17 legal advisor had originally been appointed to represent him 18 completely as an attorney as opposed to an advisor. Of course, 19 pro se would be he would be doing the representation, Sheikh 20 Omar Rahman, but I knew an attorney had been provided to him. 21 I'm not sure whether the exact representation was ever in 22 question. 23 Q. You are telling us though that these two lawyers, Mr. Kuby 24 and Mr. Kunstler, had advised the person that became your 25 client who was blind, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7989 4B35SAT4 Stewart - cross 1 A. Yes. 2 Q. He was blind; he certainly had difficulty with the English 3 language didn't speak much at all, correct? 4 A. Yes. 5 Q. Those two lawyers recommended to your client, or the man 6 who became your client, that he should walk into an American 7 courtroom and represent himself even though he is blind and 8 doesn't really speak English, is that what you are telling us? 9 A. Yes. 10 It actually was Mr. Kuntsler's view that the voice of 11 the defendant himself was an important thing to interject into 12 a trial of this nature; that the actual voice of a defendant 13 should be -- in many of his cases there was a pro se 14 representation. 15 Q. Even though the voice didn't speak English? 16 A. Even so, that was still his thought. 17 Q. Now, I believe you mentioned to us during your testimony 18 that there were a number of people who became or were actually 19 when you came into the case, paralegals, assisting in Abdel 20 Rahman's defense, is that right? 21 A. No, actually I -- it is -- I'm sorry, I misunderstood you. 22 Q. And one of those people was Mr. Sattar, is that correct? 23 A. That's correct. 24 Q. And initially one of those people was Nasser Ahmed, another 25 person mentioned? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7990 4B35SAT4 Stewart - cross 1 A. Yes. 2 Q. And another person was a fellow named Mohammed Nabil 3 Elmasry? 4 A. Yes. 5 Q. And there may have been others as well, is that correct? 6 A. There were others. I'm not able to recall their names. I 7 probably could dig it out somewhere. 8 Q. Those are the three names you are very familiar with? 9 A. Yes. 10 Q. You certainly know they were part of the paralegal team, is 11 that right? 12 A. That's right. 13 Q. By the way, were they paralegals for only Abdel Rahman or 14 were they also serving as paralegals for other defendants in 15 the case? 16 A. I think they were only for Dr. Abdel Rahman. I don't think 17 they worked for any other client. Mr. Elmasry may have. I 18 don't really remember that. 19 Q. When you came into the case, obviously you met those three 20 gentlemen, came to know them and work with them, correct? 21 A. Yes. 22 Q. And I believe you told us that from what information you 23 had that Judge Mukasey, who was the trial judge and presided 24 over your case representing Abdel Rahman, had appointed those 25 three persons to be paralegals, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7991 4B35SAT4 Stewart - cross 1 A. That is correct. 2 Q. He didn't actually choose them, is that correct? 3 A. No, he didn't choose them but he did appoint them. 4 Q. They were people who were known to Abdel Rahman before he 5 was arrested, is that right? 6 A. That's right. 7 Q. They were supporters of Abdel Rahman, is that right? 8 A. They were certainly people who were involved in the 9 congregations to which he preached. Supporters, I'm not sure 10 of. But they certainly were people that were close to him 11 before he was arrested. 12 Q. Followers of his? 13 A. I really can't speak to following. 14 Q. But they were people who essentially came -- as far as your 15 understanding was, these are people who came in order 16 essentially wanting to help and Judge Mukasey ratified the fact 17 that they could be, that they could work as paralegals and 18 essentially be paid for doing it? 19 A. Yes, that's right. 20 Q. And they were in fact paid by the government to be 21 paralegals in the case? 22 A. That's correct. 23 Q. And the reason for that was of course that Abdel Rahman 24 couldn't afford to pay for his own paralegals so the Court 25 appointed them and that authorized them to receive funds for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7992 4B35SAT4 Stewart - cross 1 their work, is that right? 2 A. I think the CJ Act is a little more complicated than that 3 but, essentially, given the size of the case and the amount of 4 the work confronting anyone who was going to be part of this 5 case, the Judge did approve the payment to the paralegals and 6 to investigators and to translators and to all manner of people 7 that were called upon to aid us. Experts. 8 Q. Now, to your knowledge, were any of those three people we 9 mentioned -- Nasser -- Mr. Ahmed, Mr. Sattar, Mr. Elmasry, were 10 these people who had been trained paralegals? In other words, 11 people who had some kind of education or training as 12 paralegals? 13 A. No. 14 The main qualification was they were -- they spoke in 15 English and Arabic and they were familiar with Egyptian culture 16 and politics, I think. Those were their main qualifications. 17 Q. I mean their professions were not paralegals, is that 18 right? 19 A. That's correct. 20 Q. I mean, Mr. Sattar worked for the U.S. Postal Service at 21 the time, did he not? 22 A. That's right. That's right. 23 Q. And the other two gentlemen, Mr. Elmasry and Mr. Ahmed, 24 they had other jobs, is that correct? 25 A. Yes. Nasser Ahmed was an engineer and Mr. Elmasry, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7993 4B35SAT4 Stewart - cross 1 think, was in computers in some capacity. 2 Q. Now, I believe you told us that at some point either in the 3 preparation or during the trial, Mr. Yousry came into the case, 4 is that correct? 5 A. Yes. 6 Q. As a translator or interpreter, is that right? 7 A. That's right. 8 Q. He not only translated documents or recordings for you in 9 helping with your defense, he would also occasionally go with 10 you into places like the MCC or wherever, Mr. Abdel Rahman, and 11 interpret for you when you had conversations with him? 12 A. My recollection was that he worked for my translation. 13 I called them because I wanted someone to come into 14 the prison with me to translate and he was the person that was 15 available and could do it and was approved by the MCC for this 16 kind of visitation. 17 And so he came in at that point solely to be the 18 interpreter. 19 Q. Is it fair to say you didn't know Mr. Sattar or Mr. Yousry 20 before you were involved in that case? 21 A. I did not know them. 22 Q. That's how you got to know them and meet them for the first 23 time? 24 A. That's correct. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7994 4b3esat2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Did you eventually become friendly with them? 3 A. I'm sorry, I didn't hear you. 4 Q. Did you eventually become friendly with them? 5 A. Yes. 6 Q. Did you consider them your friends? 7 A. I did. 8 Q. And you still do? 9 A. And I still do. 10 Q. Now, let's talk a little about the trial itself. I think 11 you told us it lasted from jury selection through verdict 12 approximately ten months, is that right? 13 A. That's correct. 14 Q. And it was a trial that was conducted before a jury, right? 15 A. That's correct. 16 Q. So there were jurors who sat through and listened to the 17 presentation of evidence for a little less than ten months, is 18 that right? 19 A. That's right. 20 Q. And those jurors were present every day when evidence was 21 presented, were they not? 22 A. They were. 23 Q. And they took notes like jurors usually do? 24 A. Yes, they did. 25 Q. They listened to the witnesses, as best you could tell? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7995 4b3esat2 Stewart - cross 1 A. They did. 2 Q. They reviewed the exhibits that were introduced, as best as 3 you could tell? 4 A. They did. 5 Q. And you told us, and actually read for us, your opening 6 statement in that trial, is that correct? 7 A. That's right. 8 Q. And, of course, Mr. Tigar read most of the opening 9 statement given by the government in that case, is that 10 correct? 11 A. That's correct. 12 Q. And you told us there were about nine or ten other 13 defendants, depending on what time it was in the trial, and 14 those lawyers also gave their opening statements to that jury? 15 A. Yes, they did. 16 Q. Now, by the way, you were asked by Mr. Tigar at some point, 17 I believe it was after you had read -- gave us your 18 presentation of your opening during the trial, whether in your 19 opening statement you were expressing your personal beliefs 20 when you argued on behalf of Abdel Rahman. Do you recall that? 21 A. I don't recall that particular question but -- do you have 22 the question there, by any chance? 23 Q. Let me move on and ask you the next question. This may 24 help. 25 You were asked a question as to whether or not you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7996 4b3esat2 Stewart - cross 1 would be permitted to be stating your personal opinion. Do you 2 recall that now? 3 A. Yes. That, I do remember. 4 Q. And you told the jury that the evidence rules don't permit 5 you to state your personal views about guilt or innocence in 6 the form of an opening statement to a jury, is that right? 7 A. That's correct. 8 Q. In fact, you can't do that when you summed up, gave your 9 summation in that trial or any trial; you can't do that either, 10 is that right? 11 A. That's correct. 12 Q. You can't say to a jury, here's what I personally believe 13 about this case. Of course, there's no rule, no law that 14 prevents you from, in fact, believing in whatever you're saying 15 to a jury, whether it be in an opening statement or in a 16 summation, is that right? 17 A. I'm not sure I understand your question completely. 18 Q. Well -- 19 A. Believing in what sense? That the evidence has -- 20 Q. Believing in the sense that you -- it happens to be 21 consistent with your personal view. 22 A. Well, if you mean that there is evidence in a case, you 23 evaluate the evidence, you are an adversary so, therefore, you 24 advocate for your view of the evidence and what it proves. But 25 I don't think it means ever substituting somehow I believe or I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7997 4b3esat2 Stewart - cross 1 think or I'm looking at this and I see such-and-such. I mean, 2 you advocate that the evidence proves certain material facts or 3 it doesn't prove, or I think in that case I particularly spoke 4 a lot about the lack of evidence in the case. 5 Q. That was a big part of your defense, is that right? 6 A. Yes, exactly. So, of course, I'm a person, I'm handling a 7 case. I'm a lawyer, but my personal views I do not interject 8 into that case or any other. But if you're saying there's no 9 bar to having a personal point of view, that's, of course, 10 true. We're all human beings. 11 Q. Of course, you're representing a client. You don't 12 necessarily have to agree with a client's view of issues, the 13 nature of the evidence in the case, to actually represent 14 somebody, is that right? 15 A. That's absolutely true. 16 Q. You may disagree with a client. And as long as you're 17 representing them and doing a good job, best you can do under 18 the rules of ethics, there's no bar to a lawyer representing 19 such a client? 20 A. No, not at all. As a matter of fact, we're urged to be one 21 step removed and view the evidence in a dispassionate way. 22 Q. Now, after the openings were given in that case, obviously 23 the burden shifted to the government -- or started with the 24 government, which always has the burden in that case as in all 25 criminal cases -- and they presented a lot of evidence, didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7998 4b3esat2 Stewart - cross 1 they? 2 A. They did. 3 Q. They presented about 135 witnesses, didn't they? 4 A. Yes, but of course there were 11 defendants. 5 Q. And is it fair to say that they introduced hundreds of 6 exhibits? 7 A. Yes. 8 Q. And included in those exhibits were recordings, 9 conversations that your client engaged in with other people? 10 A. That is true. 11 Q. And there were recordings of other defendants as well, 12 correct? 13 A. That's true. 14 Q. There were recordings that were -- contained sermons and 15 speeches given by your client? 16 A. That's correct. 17 Q. Those were introduced as well? 18 A. That's right. 19 Q. They were introduced actually the same way we introduced 20 some of those very same speeches and sermons here; they were 21 read to a jury, the ones that weren't in Arabic, is that right? 22 A. That's right. 23 Q. In fact, we introduced a number of those speeches and 24 sermons earlier in this case way back in June or so, is that 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7999 4b3esat2 Stewart - cross 1 A. You did, yes. 2 Q. And we introduced some of those intercepted recorded 3 conversations that your client participated in, is that 4 correct? 5 A. You mean in this case we introduced them? 6 Q. Yes. Do you recall? 7 A. Yes. 8 Q. By the way, you said in your direct testimony that Abdel 9 Rahman's trial or his case wasn't a wiretap case per se, or as 10 such, is that right? 11 A. That's right. 12 Q. Do you remember saying that? 13 A. Yes. 14 Q. Well, of course, there were wiretap evidence -- there was 15 wiretap evidence introduced in that case, was there not? 16 A. There was. 17 Q. There was a wiretap on your client's phone, was there not? 18 A. There was. 19 Q. And we introduced some of those calls earlier in this case, 20 did we not? 21 A. Yes. Unfortunately, the time for challenging those calls 22 legally, which were recorded, as you know, under the Foreign 23 Intelligence Surveillance Act, had passed by the time I -- and 24 they were never challenged legally with the judge by Mr. Rahman 25 acting as his own -- Abdel Rahman acting as his own counsel or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8000 4b3esat2 Stewart - cross 1 by the attorney who was appointed to advise him. So -- 2 Q. Or by Mr. Kunstler or Mr. Kuby? 3 A. Or Mr. Kunstler or Mr. Kuby. They were sort of out of the 4 case very early on. But in the months and years that 5 intervened, there was no legal challenge ever mounted on behalf 6 Sheikh Omar Abdel Rahman to those particular tapings under the 7 wiretap order. 8 Q. Now, during the government's presentation of evidence, you 9 did what you normally do during the presentation of the 10 government's evidence; you did what you typically do, which is 11 you challenged that evidence, did you not? 12 A. Yes. 13 Q. You cross-examined witnesses? 14 A. Yes. 15 Q. You tried to demonstrate to the jury that the witnesses 16 were not believable or not to credit their testimony? 17 A. Yes. 18 Q. You challenged the meaning of speeches given by Abdel 19 Rahman? 20 A. I did challenge that, yes. 21 Q. You did your job, putting the government to its burden, 22 challenging its evidence, is that right? 23 A. Yes. 24 Q. I'm sorry. And you did that throughout the case, did you 25 not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8001 4b3esat2 Stewart - cross 1 A. I did. The thing we couldn't challenge was the insinuation 2 of fear that the government also put into the case. 3 MR. DEMBER: Objection, your Honor. 4 THE COURT: Overruled. 5 Q. You got a chance to put your defense on at some point, 6 right, after the government rested? 7 A. Yes. 8 Q. Now, you told us during your testimony that you weren't 9 allowed to put your defense on, didn't you say that? 10 A. I did. 11 Q. Well, you called 20 witnesses to the stand, did you not, 12 approximately? 13 A. We did. 14 Q. They testified on behalf of Abdel Rahman? 15 A. They testified on his behalf, yes. 16 Q. And they were part of your defense, is that right? 17 A. They were part of the defense. The other part, which we -- 18 Q. The other part you weren't permitted -- 19 MR. TIGAR: Excuse me, your Honor. 20 THE COURT: All right, yes -- the witness can finish 21 answering the question. 22 A. The other part of the defense consisted of expert -- 23 MR. DEMBER: Objection. Your Honor, this has been 24 ruled upon. I don't believe this question has opened the door 25 to what Ms. Stewart wants to say at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8002 4b3esat2 Stewart - cross 1 THE COURT: All right. Ladies and gentlemen, this is 2 a good time for us to take a break. We'll break for ten 3 minutes. 4 Please remember my continuing instructions. Please, 5 don't talk about the case at all. Please always remember to 6 keep an open mind until you've heard all of the evidence, I've 7 instructed you on the law and you've gone to the jury room to 8 begin your deliberations. 9 See you shortly. 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 8003 4b3esat2 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: Ms. Stewart may step down. 3 Please be seated. Mr. Dember? 4 MR. DEMBER: Your Honor, what I anticipate Ms. Stewart 5 saying is she was prevented from calling experts who would 6 testify about the human rights conditions in Egypt. She was -- 7 I mean, it's obviously in the Second Circuit's decision, your 8 Honor. We have cited that Second Circuit decision a number of 9 times to your Honor. 10 She testified in her direct case she was prevented 11 from putting a defense in. That's how it was properly worded, 12 your Honor. I think I have a right to at least clarify with 13 this jury that, one, she did, in fact, put a defense in, which 14 she's testified to; and that the reason why she couldn't put 15 that defense in was simply because the judge ruled legally it 16 wasn't proper. 17 That doesn't open the door to her now explaining to 18 this jury what that defense was and who those witnesses would 19 have been and what they would have said. It's simply 20 addressing the issue she raised in her direct testimony. We 21 don't believe that opens the door to something that under -- at 22 the very least 403 should preclude, and your Honor has 23 precluded the same type of evidence in this case. 24 MR. TIGAR: Your Honor, the question was: Now you 25 told us during your testimony that you weren't allowed to put SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8004 4b3esat2 Stewart - cross 1 your defense on, didn't you say that? 2 "A. I did. 3 "Q. Well, you called 20 witnesses to the stand, did 4 you not, approximately?" 5 Now, that was the setup on this situation. 6 Ms. Stewart does not intend to use her answer to make a talk 7 about human rights in Egypt. She intends to say, well, she had 8 some witnesses the judge didn't call. She'd be happy to get on 9 the stand or stand here and tell your Honor what her answer 10 would have been in the form of an offer of proof. So that was 11 the reason that I thought she should be able to conclude her 12 answer, was that question called for it. 13 Now, I also want to raise, your Honor -- because I'm 14 not sure where this was going and I wouldn't want to interrupt 15 the jurors -- if the end-point of this line of inquiry is, 16 well, after all of that the jury convicted your client, didn't 17 they -- they took notes, they were here every day, your Honor's 18 heard the examination -- then at that point we would ask the 19 Court to repeat the instruction, which is an appropriate 20 mid-trial instruction, given at page 2311 of the transcript, 21 that the fact of conviction is no evidence of the guilt of 22 Abdel Rahman. 23 As I say, I don't know if the examination is going 24 there, but if it does, we will renew that application. 25 THE COURT: All right. Mr. Dember? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8005 4b3esat2 Stewart - cross 1 MR. DEMBER: Your Honor, if Ms. Stewart is going to 2 testify that she had witnesses that were prevented -- the judge 3 did not allow to be called, then I have -- if Mr. Tigar's 4 making that representation, I don't need an offer of proof or 5 anything like that. I don't believe your Honor has to give -- 6 it's not a -- 7 THE COURT: That's fine. 8 MR. DEMBER: -- an instruction. It's what your Honor 9 took judicial notice of at -- 10 THE COURT: I'm happy, if asked, and if that's where 11 the line of questioning is going, I ask -- I would give the 12 requested judicial notice again. And the reason for that is -- 13 and you're all familiar with the history of this. The 14 defendant is there, listens to evidence, some of which has -- 15 gets introduced in this trial that's relevant to the 16 defendant's state of mind, listening to that part of evidence 17 with respect to issues which are themselves relevant to this 18 trial. 19 It's also plainly clear that what the jury did in that 20 case is -- was subject to judicial notice. And as I said at 21 the time, that was something that could not not have come out 22 in the course of the evidence that was presented by the 23 parties, what happened at that trial. And so consequently, 24 the -- rather than any stipulation or so, the parties asked me 25 to take judicial notice, which I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8006 4b3esat2 Stewart - cross 1 I also added, because it was important and it reflects 2 the Federal Rules of Evidence, that defendants are not bound by 3 what a jury does in another case. And so consequently, I put 4 that in in the judicial notice, just to -- so that the jury is 5 aware of that. And so the complete judicial notice of my 6 instructions was a complete and fair explanation to the jury 7 about how to consider the indisputed fact of what the jury did, 8 of which the parties asked me to take judicial notice. 9 And so if it appears that at some point we got here to 10 what the jury did in that case, then the parties had worked out 11 their -- what I should take judicial notice of, and I had the 12 instruction that went along with that. And so if there came a 13 point where the question was asked, which was the question 14 posited, despite hearing all of that evidence and despite 15 hearing all of your arguments, that jury nevertheless found the 16 Sheikh Omar Abdel Rahman guilty, then, if asked, I would give 17 the full judicial notice and the instruction. 18 And I also, you know, point out that is different, of 19 course, from examination with respect to the evidence itself, 20 the weight of the evidence, what one or more of the defendants 21 saw or heard or read about what actually was presented in court 22 about matters that are relevant in this case. 23 OK. I'll take a brief break. 24 (Recess) 25 THE COURT: All right. Everybody ready? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8007 4b3esat2 Stewart - cross 1 MR. DEMBER: Yes, your Honor. 2 THE COURT: Ms. Stewart can come up. 3 (Continued on next page) 4 5 6 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 8008 4b3esat2 Stewart - cross 1 (In open court; jury present) 2 THE COURT: Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE COURT: Mr. Dember, you may proceed. 7 BY MR. DEMBER: 8 Q. Ms. Stewart, let me just backtrack for a moment. I had 9 asked you a few minutes ago about the type of evidence that the 10 government presented; witnesses, recordings, speeches, sermons, 11 is that right? 12 A. That's right. 13 Q. You remember that, right? 14 A. Yes. 15 Q. And I asked you about the telephone calls that were 16 intercepted on your client's phone, is that right? 17 A. Yes. 18 Q. And you mentioned that some of those were introduced to the 19 jury in this case? 20 A. Yes. 21 Q. That was back towards the beginning of our trial? 22 A. Yes. 23 Q. Now, during our discussion of that, you mentioned to us 24 that -- well, let me stop for a second. 25 When you came -- when did you come into the case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8009 4b3esat2 Stewart - cross 1 itself, representing Abdel Rahman? 2 A. I believe it was early November, perhaps November 10, 1994, 3 something like that. 4 Q. OK. Had you ever come into a case that had already started 5 in representing a client? 6 A. Yes. 7 Q. And taken over for another lawyer who represented a client 8 beforehand? 9 A. Yes. 10 Q. That's kind of a common thing to do in the practice of law? 11 A. It happens, yes. 12 Q. Somebody else represents the client, and for whatever 13 reason, a new attorney comes in and the old attorney leaves the 14 case, is that right? 15 A. Yes. 16 Q. And is it normal practice when you come into a case that's 17 already started, you have to sort of rush to get up to speed as 18 to where the case is, right? 19 A. Yes. 20 Q. Because there's maybe been various legal proceedings that 21 have taken place before you entered the case? 22 A. Yes. 23 Q. Fair? And various matters had been dealt with in a case; 24 like in a criminal case, for example, prosecutors turned over 25 evidence you're entitled to get in what we call discovery? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8010 4b3esat2 Stewart - cross 1 A. Yes. 2 Q. Right? Discovery is something that happens very early 3 after somebody is charged with a crime, is that right? 4 A. Sometimes it's early, sometimes it's a little later on, 5 but, yes, it's the material that the case is made of, yes. 6 Q. And the prosecutors have to turn that over to the defense 7 so the defense can obviously prepare their defense, correct? 8 A. Yes. 9 Q. And maybe the defense wants to make some legal challenges 10 to some of that evidence, so they do that as well, right? 11 A. Yes, motion practice takes place. 12 Q. So we have to see what the evidence is before you can 13 determine whether you should make a motion or not to maybe 14 suppress that evidence, is that right? 15 A. Yes, and the paperwork usually surrounding the evidence. A 16 number of things have to be considered. 17 Q. And you have to get familiar with the facts of a case, 18 right? 19 A. I'm sorry? 20 Q. When you come into a case late or after it's started, you 21 have to get familiar with the discovery materials, right? 22 A. Yes. 23 Q. You have to get familiar with what legal proceedings have 24 taken place up until that point, correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8011 4b3esat2 Stewart - cross 1 Q. You have to get, you know, familiar with any rulings the 2 Court has made before you came into the case? 3 A. You do, yes. 4 Q. You have to be up to speed the next time -- as soon as you 5 can so you can effectively represent your client, is that 6 right? 7 A. Yes. 8 Q. And did you do that to the best of your ability when you 9 came into represent Abdel Rahman? 10 A. Yes, but as I explained earlier, there was some things that 11 had been decided that we couldn't go back to. We were told 12 that that was the record, the record would -- when I say "the 13 record," I mean that was the decisions of the Court, and they 14 had been done legally and that they would not be reopened. 15 So when I said that the tapes of his conversations 16 were now challenged, that was done -- he was representing 17 himself. He was advised in a certain way and he went with the 18 advice. I differed with that advice, but I was informed that 19 we were not going to be able to revisit that particular issue. 20 Q. So are you saying the advice was, before you came into the 21 case, do not challenge the wiretap telephone conversations? 22 A. That's correct. 23 Q. Ms. Stewart, isn't it a fact that that's absolutely untrue? 24 A. That is not untrue. 25 Q. Well, are you familiar with Judge Mukasey's decision of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8012 4b3esat2 Stewart - cross 1 August 18, 1994? 2 A. I'm not by date, I don't think. 3 Q. Well, you got familiar, when you came into the case, when 4 was it, in the fall of '94? 5 A. Yes. 6 Q. You got familiar with all of the evidence in the case as 7 best you could do, correct? 8 A. Especially, I'm sorry? 9 Q. As best as you could do, you became familiar with the 10 evidence? 11 A. Yes. 12 Q. You became familiar with all the court proceedings, is that 13 correct, as best you could? 14 A. As best I could. 15 Q. As best you could, you got familiar with all of Judge 16 Mukasey's rulings that he had made before you came into the 17 case? 18 A. That's correct. 19 Q. Are you not aware of the fact that your client, Abdel 20 Rahman, with counsel had challenged those recordings of the 21 intercepts on his telephone and, in fact, Judge Mukasey had 22 ruled that they were properly intercepted? Do you remember 23 that? 24 A. My understanding was -- I would like to see the decision, 25 if you have it here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8013 4b3esat2 Stewart - cross 1 MR. DEMBER: May I approach, your Honor? 2 THE COURT: Yes. 3 MR. DEMBER: Your Honor, this is an unmarked document. 4 I will mark it for identification purposes as Government 5 Exhibit 666. 6 THE COURT: All right. 7 BY MR. DEMBER: 8 Q. Why don't you take a look at that, Ms. Stewart. And if you 9 like to make things a little simpler, I've highlighted for you 10 a section on the second page of the document. 11 A. Yes, I've read the document. 12 Q. And that's -- are you familiar with that document? 13 A. This was the published opinion with regard to the FISA 14 intercepts, but my understanding was that the Sheikh had 15 withdrawn his opposition to the FISAs before the decision was 16 ever made. That was my understanding from his prior advisor, 17 and that the decision was made on behalf of three or four other 18 defendants in the case by Judge Mukasey. 19 Q. Judge Mukasey ruled on the challenge your client made to 20 the intercepted calls on his phone, isn't that right? In fact, 21 he didn't withdraw it. In fact, Judge Mukasey, in fact, ruled 22 on that, what you claimed had been waived and not raised, is 23 that right? 24 A. My understanding, as I said, and I can only tell you what 25 my understanding was coming into the case when I did, was that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8014 4b3esat2 Stewart - cross 1 when he appeared in court to argue the FISA intercepts, he 2 withdrew his opposition to them because he was advised by 3 counsel that would make him look guilty; it would make him act 4 as if there might be something bad on those intercepts. And so 5 he withdrew on the record. 6 Now, I don't have the record with me, but I'll tell 7 you that was my belief at the time. And I understood that the 8 other attorneys in the case did pursue the FISA, I know 9 particularly the attorney for Nosair was very adamant about it, 10 and -- but as I said -- 11 Q. Ms. Stewart -- 12 A. -- that was my understanding, that he withdrew. 13 Q. -- did you read that decision issued by Judge Mukasey in 14 August of 1994 at any point in time when you represented Abdel 15 Rahman? 16 A. Since at the time I came into the case it was already a 17 done decision, the decision had been rendered, I may have read 18 it over. I'm relying on the fact that I was informed by both 19 my client and by prior counsel that he had withdrawn. I was 20 informed by the Court that they would not revisit that issue 21 and I -- if I did read this, I can't say that it struck my 22 memory particularly. 23 Q. Ms. Stewart, did anybody tell you that Judge Mukasey -- or 24 anybody tell you he wouldn't revisit the issue because it 25 already decided it in that decision? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8015 4b3esat2 Stewart - cross 1 A. I don't think the decision may ever have been mentioned. 2 And I must say that I probably did read the decision, but my 3 understanding was that my client did not actively pursue a 4 resolution of the issue. That was my understanding, that he 5 had withdrawn. 6 Q. Your testimony before the break was there had not been a 7 challenge to that intercepted -- those intercepted calls, is 8 that right? 9 A. Oh, no, I knew there was a challenge, but I did not believe 10 it was done by the Sheikh; that his challenge was waived, in 11 effect. 12 Q. Have you looked at that decision? 13 A. Well, I hate to sit here and take a 20 minutes to read the 14 decision, but I will if you'd like. 15 Q. If you'd like, just look at the second page where I've 16 highlighted for you. Does it not indicate that, in fact, Abdel 17 Rahman made a motion to suppress that evidence and then, in 18 fact, that it was made -- obviously Judge Mukasey in that 19 decision ruled on that motion. 20 A. Yes. I am noting the date is August 18th and the 21 recitation in the initial paragraph says that the motion was 22 filed. Now before the Court are motions by Omar Ahmed Ali 23 Abdel Rahman. But it was my understanding, and it's my 24 understanding as I still sit here, that he withdrew his motion, 25 that he did not pursue it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8016 4b3esat2 Stewart - cross 1 Q. Is it your current understanding that Judge Mukasey ruled 2 on his motion? 3 A. Assumedly from this, but I still -- I have a recollection 4 of reading that part of the record where he came to court 5 representing himself. And the judge said to him, now, are you 6 withdrawing your opposition to this wiretap, to the FISA 7 wiretap, and him answering, yes, he was withdrawing his 8 opposition. That's what I remember reading, which of course 9 fit in with what I had been told earlier. 10 Q. In fact, Judge Mukasey ruled that those intercepted -- 11 those calls were properly intercepted and determined that that 12 evidence was properly -- could be placed before the jury if the 13 government at that time decided they wanted to do that, is that 14 right? 15 A. Yes. I believe -- without becoming overly technical, the 16 interceptions were of the Sheikh's telephone, as you've said, 17 so he was obviously the best person to bring this motion, if 18 there was someone to say, I'm aggrieved by the invasion of my 19 privacy. However, as I said, it is my understanding still 20 today that he withdrew from the consideration of these motions. 21 But I see what you've shown me. And if Judge Mukasey 22 in this opinion, which was published, said that he decided on 23 behalf of Abdel Rahman appearing pro se here, then this opinion 24 stands for what it stands for. 25 Q. Ms. Stewart, I think you told us -- I'm going to jump ahead SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8017 4b3esat2 Stewart - cross 1 a little bit. You told us at some point, while you didn't do 2 any writing or research associated with the appeal -- 3 MR. TIGAR: May I confer with counsel briefly, your 4 Honor. 5 THE COURT: Sure. 6 MR. DEMBER: I'll start again, your Honor. 7 Q. Ms. Stewart, when you -- I just want to jump ahead. You 8 indicated to us in your direct testimony that you didn't 9 actually write or research the appeal of that conviction, but 10 that you read through the appeal before it was filed? 11 A. Yes, that's correct. I probably a little more -- I mean, I 12 was consulted as a fact person, I guess is the best way to say 13 it. Is this what happened? And who said this? But -- and I 14 read -- certainly read through the appeal before it was 15 submitted. 16 Q. And isn't it true, because you read it before it was 17 submitted, that you and the other attorneys who submitted that 18 appeal on behalf of Abdel Rahman never challenged Judge 19 Mukasey's ruling on the admissibility of that wiretap evidence, 20 wiretap on his phone, is that correct? 21 MR. TIGAR: Objection. Relevance, your Honor. 22 THE COURT: Sustained. Can we take it up at the next 23 break. 24 Q. Ms. Stewart, let's go back for a moment to where we left 25 off before the break. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8018 4b3esat2 Stewart - cross 1 I had asked you about some testimony you gave last 2 week where you had indicated that you weren't permitted to put 3 your defense on in the Abdel Rahman case, is that correct? 4 A. Yes. 5 Q. And you had testified to that effect, is that correct? 6 A. Yes. 7 Q. And then I asked you some questions about the fact that you 8 had called 20 witnesses, is that right? 9 A. Right. 10 Q. And when you say you weren't allowed to put your defense 11 on, is that because there were some witnesses you wanted to 12 call to the stand to testify on behalf of your client and Judge 13 Mukasey ruled their testimony legally not admissible; is that 14 correct? 15 A. Yes. I think you asked me about, did I put on part of my 16 case, and that is true. It was the part of the case that went 17 to the calling of expert witnesses that Judge Mukasey ruled 18 against. 19 Q. And, in fact, you and the other lawyers representing Abdel 20 Rahman on appeal raised that issue before the Court of Appeals, 21 did you not? 22 MR. TIGAR: Objection, your Honor. Relevance. 23 THE COURT: Sustained. 24 Q. Now, by the way, the evidence that we presented in this 25 case from the Abdel Rahman case, several speeches, a few SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8019 4b3esat2 Stewart - cross 1 telephone intercepted calls or calls that were intercepted, do 2 you remember that from earlier in the case? 3 A. Yes. 4 Q. That's only a small part of the evidence that was 5 introduced against your client, is that a fair statement to 6 make? 7 A. I don't know small, whether I'd characterize it as small, 8 but it was part of the evidence. It was part, yes. 9 Q. Now, at the present -- at the conclusion of the 10 presentation of evidence, each side gave their summations as we 11 call them, is that correct? 12 A. That's correct. 13 Q. And I think you described the summations given by the 14 government as being both emotionally and factually powerful, is 15 that the phrase you used? 16 A. That's true, yes. And that's the phrase I used. 17 Q. They were given by Mr. McCarthy, Andrew McCarthy, and Pat 18 Fitzgerald, is that correct? 19 A. That's correct. 20 Q. And you gave certainly what you believed to be a 21 persuasive, powerful argument to the jury as well, did you not? 22 A. Apparently not persuasive enough, but, yes, I made the best 23 summation I could. 24 Q. And obviously you've told us, the jury eventually reached 25 its verdict, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8020 4b3esat2 Stewart - cross 1 A. That's correct. 2 Q. And you've told us a couple of times you disagreed with 3 that verdict, is that correct? 4 A. Yes. 5 Q. In fact -- 6 MR. TIGAR: Your Honor, we request the instruction. 7 THE COURT: All right. Ladies and gentlemen, you've 8 heard a reference to the verdict in the trial of Sheikh Omar 9 Abdel Rahman, and I've previously instructed you on this, but 10 just to refresh your recollection, I have taken judicial notice 11 of certain facts which I believe are not subject to reasonable 12 dispute. Specifically, that, one, Sheikh Omar Abdel Rahman was 13 convicted on January 17, 1996, of seditious conspiracy, 14 solicitation of crimes of violence, conspiracy to murder and 15 bombing conspiracy and was sentenced by Judge Michael B. 16 Mukasey of this Court to a term of life imprisonment. 17 Two, his conviction was affirmed by the United States 18 Court of Appeals for the Second Circuit on August 16, 1999. 19 And three, the Supreme Court of the United States 20 declined to review his case on November 1, 1999. 21 I have accepted these facts to be true, even though no 22 evidence has been introduced proving them to be true. 23 The facts of which I have taken judicial notice do not 24 bind you to conclude that Sheikh Abdel Rahman was, in fact, 25 guilty of those offenses. You may but are not required to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8021 4b3esat2 Stewart - cross 1 agree that the facts of which I have taken judicial notice are 2 true. The fact of conviction and the subsequent appellate 3 review is not evidence of the guilt of Sheikh Abdel Rahman, and 4 none of the defendants are bound by those determinations 5 because none of the defendants was a party in that case. 6 All right. Go ahead. 7 BY MR. DEMBER: 8 Q. Now, Ms. Stewart, as we just heard, one of the charges your 9 client was convicted of is what's called seditious conspiracy, 10 is that right? 11 A. That's right. 12 Q. And that was characterized by the government during that 13 trial as essentially the defendants, including your client, 14 waging a war of urban terrorism against the United States in 15 New York City, is that right? 16 A. That's what the government said, yes. 17 Q. And the plot that was alleged and evidence was introduced 18 about involved a plot to blow up buildings and tunnels here in 19 Manhattan, is that correct? 20 A. That was the plot that was alleged, yes. 21 Q. And the second count your client was convicted of was 22 characterized in our -- as the judge just described it as 23 solicitation of crimes of violence, crimes of violence, is that 24 right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8022 4b3esat2 Stewart - cross 1 Q. And your client was found guilty of that crime, and that 2 essentially involved his soliciting others to murder President 3 Hosni Mubarak of Egypt, is that right? 4 A. That was the government's allegation, yes. 5 Q. And also with solicitation of an attack on an American 6 military installation? 7 A. Yes. 8 Q. And the third count, which was the conspiracy to murder, 9 was a conspiracy to murder, again, President Mubarak, is that 10 right? 11 A. Yes, it was. 12 Q. And the final count was just described as a bombing 13 conspiracy, and that involved a conspiracy to blow up buildings 14 and tunnels in Manhattan that I just referred to, is that 15 right? 16 A. Yes. 17 Q. And your client was found guilty by the jury beyond 18 reasonable doubt on each of those charges, is that right? 19 A. I didn't quite catch what you said, the whole statement. 20 Q. Your client was found guilty beyond a reasonable doubt as 21 to each of those charges? 22 MR. TIGAR: Object to the question. I'd ask that it 23 be stricken. 24 THE COURT: Sustained. Stricken. 25 Ladies and gentlemen, I've given you a fairly detailed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8023 4b3esat2 Stewart - cross 1 judicial notice, and I've also given you some limiting 2 instructions about how that judicial notice is to be taken. 3 And you're to take all of that together and, of course, you're 4 required to follow my instructions. 5 OK. Go ahead. 6 BY MR. DEMBER: 7 Q. And you told us, and we heard just a moment ago, what the 8 sentence was, which was life imprisonment, correct? 9 A. Yes, plus 65 years. 10 Q. Plus 65 years. 11 By the way, do you know someone by the name of Peter 12 Waldman? 13 A. Not ringing a bell. 14 Q. OK. To the best of your knowledge, have you ever met Peter 15 Waldman? 16 A. At my advanced age, names are the first thing that 17 disappear from memory, but I don't recall it, no. 18 Q. The name doesn't ring a bell with you? 19 A. It does not ring a bell. 20 Q. Do you know somebody by the name of Frances McMorris? 21 A. That name does not ring a bell either. 22 Q. To the best of your knowledge, you've never met Frances 23 McMorris? 24 A. I couldn't say that. I've met a lot of people in my life. 25 Q. Well, you can't at this point identify a face with either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8024 4b3esat2 Stewart - cross 1 of those two names, can you? 2 A. No, I can't. 3 MR. DEMBER: OK. Well, your Honor, may I put on 4 the -- present to the jury LS406. 5 THE COURT: All right. 6 Q. Can you see that, Ms. Stewart? That's one of your 7 exhibits, is it not? 8 A. It is. 9 Q. And can you see that clearly? That's a copy of a Wall 10 Street Journal article that was introduced in your direct 11 testimony, is that correct? 12 A. Yes. 13 Q. And, in fact, Mr. Tigar read that to the jury, is that 14 correct? 15 A. That's correct. 16 Q. And it was written by Peter Waldman and Frances McMorris, 17 is that right? 18 A. That's right. 19 Q. Now, you don't know who those two people are, do you, other 20 than know from this article they are two people who supposedly 21 wrote this article? 22 A. I -- I've spoken to a lot of reporters before that date and 23 since that date. The names did not ring a bell, but I did 24 probably speak to them before the article was written. 25 Q. Oh, you say you probably spoke to them. You don't know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8025 4b3esat2 Stewart - cross 1 whether you spoke to them or not, do you? You can't say 2 definitively you did or not, could you? 3 A. As I said, my memory is not photographic or perfect. I 4 know that I spoke to reporters from the Wall Street Journal 5 during the course of Sheikh Omar's trial or during the 6 deliberation or some point during that trial. Their names, I 7 did not recall, and -- but I know that I spoke to reporters 8 from Sheikh Omar's trial. And I probably -- I think 9 Ms. McBiddle, is that the name, McBiddle -- 10 Q. You don't know the name, do you? 11 A. I don't know the name, no. 12 Q. And you can't match a face to that name, can you? 13 A. I think I could probably match a face if I were to see her 14 again. 15 Q. Well, you just said the name McBiddle. The name is not 16 McBiddle. 17 MR. DEMBER: May I put the exhibit back on the Elmo, 18 your Honor, and present it to the jury. 19 THE COURT: Yes. 20 Q. The name is McMorris. Isn't it a fact, Ms. Stewart, you 21 don't know either of those two people, and you don't know 22 whether or not you've ever spoken to either of those two 23 people? 24 A. No. I think I said I did know that I spoke to reporters 25 from the Wall Street Journal. I certainly was aware of this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8026 4b3esat2 Stewart - cross 1 particular article when it came out. Could I have picked them 2 out of a lineup if you were to run one right now? Probably 3 not. But I have a recollection of the female reporter and -- 4 but the male reporter, I probably -- Mr. Waldman I probably 5 could not pick out, no. 6 Q. So you're saying you have a recollection of a female 7 reporter? 8 A. Yeah, I think it's pretty particular to this -- to the Wall 9 Street Journal. Not her name, but I do remember who she was. 10 Q. There's a female from the reporter of the Wall Street 11 Journal who you spoke to. How much did you see that person, 12 that particular woman or female reporter, at Abdel Rahman's 13 trial? 14 A. I think she attended sporadically. You know, for the 15 important dates, the openings, the closings, perhaps during the 16 course of the trial. I really don't remember exactly. 17 Q. You didn't keep track of her coming and going, wherever 18 that reporter was, did you? 19 A. No, not at all. 20 Q. You were too busy trying to defend your client, is that 21 right? 22 A. Yes, I guess you could characterize it that way. 23 Q. That was your main focus, was it not? 24 A. Yes, but I also explained that I thought that media was 25 important to the case. And I did do a great deal of talking to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8027 4b3esat2 Stewart - cross 1 the press during that trial. 2 Q. And a lot of the press that you saw there and that you 3 spoke to were people whose names you know, is that right? 4 A. Some of them I know, some of them I probably don't 5 remember. 6 Q. And some of them you have in your Rolodex in your office, 7 do you not, their names and phone numbers? 8 A. Yes. I think that existed long after the trial was over, 9 yes. 10 Q. Now, so you don't know -- when Mr. Tigar read this article 11 the other day, you don't know whether these two reporters 12 were -- ever stepped into the courtroom and heard any of the 13 evidence live, do you? You can't say that, can you? 14 A. No. As I said, I'm positive that the female reporter was 15 someone that I spoke to at some length and that she was 16 definitely in the courtroom. 17 Q. You said the female reporter. 18 A. Yes. 19 Q. But you can't match a name with a face. You're assuming, 20 are you not, that that must be Ms. McMorris, is that your 21 assumption? 22 A. She was -- as I said, she was known to me as -- and I 23 identified her as the reporter from the Wall Street Journal. 24 So I'm aware of her being here, whether I remembered her name 25 or not, but I recall her being in the courtroom. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8028 4b3esat2 Stewart - cross 1 As a matter of fact, I remember sitting with her -- 2 that courtroom is almost identically situated as this is -- in 3 the part that's directly behind where you're standing now and 4 talking to her. That, I do remember. 5 Q. You're telling us you spoke to a Wall Street Journal 6 reporter who's a female but you can't tell us it's the same 7 woman, can you? You don't know that woman's name, is that not 8 right? Did you not say that? 9 A. I guess you could say anytime you talk to a reporter and 10 then they write a story, you're not certain that the same 11 person you spoke to wrote the story. But as far as I knew, I 12 spoke with the Wall Street Journal and they did write the 13 story. I think they wrote a story at the very beginning of the 14 case as well. 15 Q. Now, there were a few people who were present during that 16 trial every day that the trial was in session, is that right? 17 A. Yes. 18 Q. And certain people were there every single day evidence was 19 presented in that case, is that right? 20 A. I would say that was true, although I'm -- it was almost 21 ten years ago now so -- 22 Q. Well, the jury that heard the evidence or that rendered the 23 verdict in that case was present every single day evidence was 24 presented, is that right? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8029 4b3esat2 Stewart - cross 1 Q. And Judge Mukasey was present every single day evidence was 2 presented in that case, was he not? 3 A. Yes. 4 Q. And when it came time for sentencing, it was Judge Mukasey 5 that imposed the sentence on your client, is that right? 6 A. That's true. 7 Q. And during that sentencing, Judge Mukasey had occasion to 8 comment on the evidence, did he not? 9 MR. TIGAR: Objection, your Honor. Relevance. 10 MR. DEMBER: State of mind, your Honor. 11 THE WITNESS: I'm searching my memory. 12 THE COURT: Take it up at the break, please. 13 Q. Ms. Stewart, let's take up -- let's turn to the Special 14 Administrative Measures, if we can. 15 Before I do that, though, let me -- obviously in our 16 case here, you've been present every single day the evidence 17 has been presented, have you not? 18 A. Yes. 19 Q. And you already -- I think you've testified in your direct 20 testimony that before the trial started, you reviewed much of 21 the discovery that was turned over in this case to your 22 attorneys and you, is that right? 23 A. Yes. 24 Q. That included documents, correct? 25 A. It did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8030 4b3esat2 Stewart - cross 1 Q. That included recordings? 2 A. It did. 3 Q. Certainly ones in Arabic you couldn't listen to and 4 understand, could you? 5 A. No. 6 Q. You don't speak Arabic? 7 A. No. 8 Q. Only a few words? 9 A. Just a few words. 10 Q. But you certainly could listen to the conversations that 11 were in English, is that right? 12 A. That is correct, yes. 13 Q. And did you listen to all of those conversations? 14 A. I would say so, yes. 15 Q. And there were some other types of evidence, videotapes, 16 things like that that were also provided in discovery; you 17 looked at those as well, did you not? 18 A. I looked at some videotapes. I'm not sure I looked at the 19 full length of any -- certainly the prison visit videotapes 20 were hard to listen to for an extended period of time. 21 Q. And you said you didn't look at every single piece of 22 evidence, or every piece of discovery that was turned over, is 23 that right? 24 A. That's right. 25 Q. That was your testimony, right, but you looked at a good SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8031 4b3esat2 Stewart - cross 1 deal of it, did you not? 2 A. Yes. 3 Q. And would it be fair to say when you looked at it, you 4 didn't look at it really from the standpoint of perhaps a 5 person accused of wrongdoing, but as -- you really looked at it 6 from the perspective of a lawyer, is that right? 7 A. Well, not exactly. I think that it's very hard to forsake 8 one's training and profession of 30 years. So of course I 9 couldn't help but look at it as a lawyer. That's what I am. 10 But I also looked at it as a defendant, which is, let me tell 11 you, a very different look than the look of the lawyer. 12 Q. Very different than you're used to, is that right? 13 A. Pardon me? 14 Q. Very different than you are used to -- 15 A. Yes. 16 Q. -- when you're looking at pretrial discovery provided by a 17 prosecutor? 18 A. Yes, it's -- as a lawyer you're dispassionate, hopefully, 19 looking at the evidence. As a party, a defendant, there's an 20 investment, no question. 21 Q. Now, let's talk about the SAMs a little bit. You told us 22 before that from your understanding certainly they were 23 instituted back in about April of 1997, correct? 24 A. That's correct. 25 Q. And they have been in continuous effect in various forms SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8032 4b3esat2 Stewart - cross 1 ever since then, certainly up to the point you were charged in 2 this case, is that correct? 3 A. That is my understanding, yes. 4 Q. There was never a time, as far as you understood, that 5 Abdel Rahman was not under Special Administrative Measures, is 6 that correct? 7 A. From '97 on, April '97 onward, that's correct. 8 Q. And you understood -- and you understand from having dealt 9 with the Special Administrative Measures that they restrict how 10 Abdel Rahman can communicate or could communicate with people, 11 is that right? 12 A. Generally speaking, I think that's a fair statement. 13 Q. Let's give some examples: For example, they limit the type 14 of people who can visit him, is that right? 15 A. Type? Yes, I guess you couldn't characterize it any other 16 way. 17 Q. Well, his lawyers can visit him, correct? 18 A. Yes. 19 Q. And his family, or certain family members can visit him, 20 correct? 21 A. Correct. 22 Q. And it restricts who on the telephone he can speak with, 23 does it not? 24 A. Yes. 25 Q. He can speak to his lawyers, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8033 4b3esat2 Stewart - cross 1 A. Correct. 2 Q. And he can speak to his wife, correct? 3 A. Different time frames, yes. But that is correct. 4 Q. And they also prescribe, or describe, I should say, how 5 Abdel Rahman can communicate with other people. And that's 6 mostly by mail, is that right? 7 A. It had some provisions about the mail, which were not too 8 applicable since he was not writing letters at that point. 9 Q. There's no question, is there not, that obviously during 10 the entire time the SAMs was in effect he's been blind, 11 correct? 12 A. Yes. 13 Q. And in effect, because of his diabetes, it's at certain 14 points of time he lost the ability to feel with his fingers, so 15 braille hasn't always been available to him as a way of 16 communicating? 17 A. That's true. 18 Q. Correct? 19 A. Yes. 20 Q. Let me go back to the SAMs. There are various procedures 21 in place for how visits can be conducted with him, is that 22 correct? 23 A. How visits can be conducted? I'm not -- 24 Q. Who could be present? 25 A. Who could be present, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8034 4b3esat2 Stewart - cross 1 Q. How much advanced notice has to be given in order to set up 2 a visit? 3 A. Was that in the SAMs? I'm not sure of that, but I think we 4 had to make advanced notice. 5 Q. I think it was. Certain restrictions, even with his 6 attorney calls, as to what an attorney can do with the call in 7 terms of patching it through or having somebody unauthorized 8 present in the room or on the line when the lawyers were 9 talking to him, is that right? 10 A. That's correct. 11 Q. And there's -- the SAMs have restrictions and procedures as 12 to the translator and what the translator can do or can't do, 13 is that right? 14 A. That's correct. 15 Q. Now, I think you've seen, we've introduced various 16 exhibits. Periodically you get copies of the Special 17 Administrative Measures from either Mr. Fitzgerald or somebody 18 else at the US Attorney's Office, is that right? 19 A. Yes. Mr. Francisco apparently, who we heard from here, was 20 in charge of it, yes. 21 Q. And with the SAMs -- we'll call them the SAMs, you 22 understand what that means, correct? 23 A. I do. 24 Q. Of course. And you also would get frequently a -- an 25 attorney affirmation for you to sign, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8035 4b3esat2 Stewart - cross 1 A. Usually, except sometimes they forgot to put it in or they 2 had the wrong date or whatever. But, yes, there was usually an 3 affirmation to sign. 4 Q. At some point. And let me just talk about the SAMs and 5 your dealing with them for a moment. 6 Is it fair to say that other than Abdel Rahman, you've 7 never had a client -- you've never represented a client who's 8 ever been under Special Administrative Measures? 9 A. That's correct. 10 Q. He's the only client you've ever represented who is under 11 such restrictions, is that right? 12 A. Yes. 13 Q. This was a -- when it first started, this was a new 14 experience for you, correct? 15 A. Yes. 16 Q. Now, at various times I think you've testified, or even 17 stated in recordings, that you believe that Abdel Rahman was an 18 influential man, an important man to his people? 19 A. I think he was a person that commanded a certain position 20 of respect and a certain place on the stage of public events in 21 Egypt and the Middle East, yes. 22 Q. And it's your understanding he was a well known person in 23 the Muslim world? 24 A. That is correct. 25 Q. I think you told us when you first came to represent him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8036 4b3esat2 Stewart - cross 1 that you understood that he had advocated violence, is that 2 right? 3 A. Yes. I believe I knew that when I first came into the 4 case. 5 Q. And obviously at the point in time that the Special 6 Administrative Measures were imposed had been convicted and 7 sentenced, is that right? 8 A. That is correct. 9 Q. Now, I think it was maybe in one of the recordings where 10 you were speaking to Abdel Rahman, I think during the May 2000 11 prison visits, prisons themselves, you talked about some other 12 persons, other defendants, inmates that you knew about who were 13 also under Special Administrative Measures, is that right? Do 14 you remember that part of the conversation? 15 A. Are you referring to the part where we're talking about 16 bringing a class action lawsuit? 17 Q. Exactly. 18 A. Yes. 19 Q. You remember that? 20 A. Yes. 21 Q. And just from your knowledge of your own client being under 22 the SAMs -- 23 A. I'm sorry. I didn't catch that. 24 Q. I'll repeat it, I'm sorry. 25 Just from your own knowledge of your -- the fact that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8037 4b3esat2 Stewart - cross 1 your client was under these restrictions, were you aware of the 2 fact that actually very few federal prisoners, inmates in 3 federal prisons are actually under Special Administrative 4 Measures? Are you aware of that fact? 5 A. I think I was aware of that fact, yes. 6 Q. And I believe in that conversation you just mentioned where 7 you were talking during the visit about bringing a class action 8 with other lawyers who were representing other -- their clients 9 who were also under Special Administrative Measures, is that 10 right? 11 A. Yes. 12 Q. And you mentioned the name Ramzi Yousef in that 13 conversation, didn't you? 14 A. I did. 15 Q. And you knew who Ramzi Yousef was at the time you mentioned 16 his name, of course, right? 17 A. Yes. Actually, the government provided him to us during 18 the Sheikh's case to interview, the defense team. He had 19 recently been captured in Pakistan, so, yes, I participated in 20 that interview of Ramzi Yousef. 21 Q. Actually, was it in Pakistan or Philippines? 22 A. I think he was captured in Pakistan, but I could be wrong. 23 Q. But he was brought back to the United States to face 24 charges, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8038 4b3esat2 Stewart - cross 1 Q. And the charges, including the 1993 -- 2 MR. TIGAR: Objection, your Honor. 3 THE COURT: Sustained. 4 Q. He was, at the time you were talking about him during the 5 May 2000 visit, a convicted defendant, correct? 6 A. Yes. 7 Q. Is it fair to say he was convicted of very serious charges, 8 without going into what they were? 9 MR. TIGAR: Objection, your Honor. 10 MR. DEMBER: Her knowledge, your Honor, state of mind. 11 THE COURT: I'll allow that question. 12 A. Serious charges, yes, I believe so. 13 Q. And he received a very serious sentence, is that correct, 14 without -- I'm not asking anything more than that. 15 A. Yes. 16 Q. Did you know any other defendant inmates who had -- were 17 also under Special Administrative Measures? 18 A. It was my understanding that Leonard Pelletier, the leader 19 in the American Indian Movement, is held under SAMs, that he is 20 restricted. I also think that I remember reading about certain 21 persons who were gang leaders, convicted in this district of 22 drug, etc., gangs that were also placed under Special 23 Administrative Measures. Other than that, I couldn't say I 24 know of personal knowledge anyone else. 25 Q. Not specifying the nature of the crimes, were those two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8039 4b3esat2