11275 4cuesat1 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 December 30, 2004 8 9:35 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 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11276 4cuesat1 1 (Trial continuing) 2 (In open court; jury present) 3 THE COURT: Good morning, ladies and gentlemen. Good 4 to see you all. 5 All right. Mr. Dember, you may proceed. 6 MR. DEMBER: Thank you, your Honor. 7 Ladies and gentlemen, let me just pick up where we 8 left off yesterday. Towards the end of the day, as you recall, 9 on the second day of the May 2000 visit, Abdel Rahman dictated 10 his response to Taha. And after the visit that response was 11 provided by Yousry and Stewart to Sattar. And we talked about 12 the conversations that Sattar had with a number of people. 13 Now, I'm not going to repeat what Abdel Rahman said and 14 dictated to Yousry. You recall what that is. 15 But after that, as I said, Sattar got the response 16 from Yousry and Stewart and had conversations with Hamza, Taha 17 and al-Sirri. And he told them that -- and said to them in -- 18 as part of describing Abdel Rahman's response, he added 19 something that Abdel Rahman did not say to Yousry during that 20 visit. And what he said was, if circumstances permit the 21 carrying out of an action, there should be no objection to 22 that. 23 That wasn't what Abdel Rahman said during that visit, 24 not those words. What Abdel Rahman said during the May 2000 25 visit did not include those words. If circumstances permit the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11277 4cuesat1 1 carrying out of an action, there should be no objection to 2 that. 3 So how did that, how did the fact that Abdel Rahman 4 had no objection to carrying out a terrorist action get into 5 the message that Sattar relayed to Hamza, Taha and al-Sirri? 6 Well, the answer to that question is: One or more persons in 7 this courtroom put it in Abdel Rahman's response, one or more 8 persons in this courtroom. And they're sitting at the back 9 table here, one or more of those persons. 10 Now, make no mistake about it, when Abdel Rahman was 11 dictating his response to Yousry, his response to Taha on 12 May 20, 2000, during the last day of the visit, it was crystal 13 clear what he meant and what he intended. And what he meant 14 and what he intended was that he was calling for an end, was 15 withdrawing his support and calling for an end to the ceasefire 16 and a resumption of violence and killing. 17 Now, after that prison visit the defendants got 18 together and discussed what would go in the press release. And 19 Stewart told you in her testimony she and Yousry and Sattar sat 20 down and talked about it. And what they came up with was 21 essentially what Abdel Rahman said, even though he didn't use 22 those precise words either. And that was that Abdel Rahman -- 23 they were going to announce in the press release that Abdel 24 Rahman was withdrawing his support for the ceasefire. Well, if 25 you don't support the ceasefire -- well, he didn't anymore. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11278 4cuesat1 1 supported the opposite, and that was the message. He was 2 supporting an end to the ceasefire and a resumption of violence 3 and killing in Egypt. 4 Now, Stewart in her testimony claimed that not only 5 did she speak to her codefendants before the press release was 6 issued, she claimed and testified that she also spoke with the 7 other lawyers, Ramsey Clark and Abdeen Jabara. And that's an 8 interesting claim. 9 But you understand now why she would make such a 10 claim. She did it in her testimony, and it clearly was not 11 true, because she wanted to give herself some kind of 12 justification, some kind of a legitimacy to the press release; 13 as if the other lawyers also considered that type of a press 14 release to be appropriate under the SAMs and legitimate. 15 But as you well know, Mr. Jabara and Mr. Clark refused 16 to issue statements by Abdel Rahman about the ceasefire. In 17 September of 1999, when Abdel Rahman issued that -- told Clark 18 through Yousry about the fact that he no longer supported the 19 ceasefire and that the Islamic Group was absolved from it, no 20 longer bound by it, Clark refused to issue that press release. 21 And the next visit was May of 2000. And on the first 22 day of that visit, Abdel Rahman asked Jabara, Abdeen Jabara, if 23 he would issue a press release announcing Abdel Rahman's view 24 of the ceasefire, which was, of course, he was no longer 25 supporting it. And Jabara refused to issue it as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11279 4cuesat1 1 Now, neither of those two gentlemen would issue such a 2 statement, one, because it was a clear violation of the SAMs; 3 and, two, because it was a criminal act and they would have no 4 part of it. And they refused to, as you know. 5 How do you know that? Well, explicitly you know from 6 those two visits and the evidence we talked about yesterday and 7 we presented to you during the trial, they clearly refused to 8 do it. And you also know that when Mr. Clark testified, he was 9 asked by us on cross-examination, did you have any 10 conversations with Stewart before that press release was issued 11 in June of 2000? He said, no, he didn't recall any. In fact, 12 the first time he heard about that press release, anything 13 about it, was months after it had been released. 14 Now, would Mr. Clark have remembered hearing about the 15 press release before, months after it was released? You bet he 16 would have. And you know why. The reason is that he had made 17 extensive efforts on behalf of Abdel Rahman, numbers of trips 18 to Egypt to try to convince the Egyptian government to take 19 Abdel Rahman in a transfer. In other words, have him serve his 20 American prison sentence in an Egyptian jail. The Egyptians 21 had refused. 22 He told you, as Stewart did too, again, their main 23 objective when it came to Abdel Rahman, after his appeal was 24 denied and he was -- and his sentence of life imprisonment was 25 final, was to get him transferred back to Egypt. And certainly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11280 4cuesat1 1 Clark understood that making an announcement, issuing a 2 statement to the press with Abdel Rahman's words no longer 3 supporting the ceasefire and now essentially -- and supporting 4 the return to violence is going to be detrimental, obviously, 5 in their efforts to get him transferred back to Egypt. The 6 Egyptians won't want him, when clearly he's advocating violence 7 against the very government that Clark is trying to negotiate 8 with. 9 So he certainly would have remembered if Stewart had 10 told him, I want to issue a press release and this is what's 11 going to be in it, and what do you think? Because he would 12 have said absolutely no, because he had himself refused. 13 There's, by the way, another reason why you know that 14 Stewart never talked to Clark about that press release. And 15 that reason is found in one of the last exhibits we introduced 16 to you during our rebuttal case. That's Government 17 Exhibit 1275X. That is -- and that's the transcript of the 18 recording. It's an English recording. As you know, it's the 19 actual recording itself when it's in English that's in 20 evidence. That's the transcript we used to aid you in 21 reviewing the recording itself. And that was a conversation on 22 August 28, 2000, after the press release had been issued and 23 after Mr. Fitzgerald had confronted Ms. Stewart and told her 24 that he now was aware of her press release and that she would 25 be cut off from Abdel Rahman and have to sign a new affirmation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11281 4cuesat1 1 if she wanted to see him. 2 And in that conversation, Stewart is talking to 3 Yousry. And they're talking about Mr. Fitzgerald's letter of 4 August 3rd, 2000, in which he says she's going to have to sign 5 a new affirmation, that he was aware of the fact that she 6 issued a press release. He attached to the letter a new copy 7 of an affirmation. He attached articles, including Esmat 8 Salaheddin's articles announcing the press releases. 9 And she was talking about that letter with Yousry. 10 And during the conversation Yousry said, well, maybe you need 11 to talk to Mr. Clark about the letter you have there and the 12 fact that the government is going to cut you off, or require 13 you, I should say, to sign a new affirmation if you want to see 14 Abdel Rahman. 15 And what does Stewart say? She says she's not 16 interested in hearing Clark's views of Pat Fitzgerald's letter, 17 the fact that she is going to be required to sign a new 18 affirmation if she wants to see Abdel Rahman. She said, I 19 don't care what Ramsey Clark has to say on this issue. I don't 20 care what Ramsey Clark has to say. 21 Well, if she doesn't care about what another lawyer, 22 her cocounsel, wants to say and get his advice and perhaps get 23 him on board with her to adopt her position in dealing with the 24 US Attorney's Office and Pat Fitzgerald with respect to the 25 press release, she's not interested in getting him on board SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11282 4cuesat1 1 then, why would she want him on board when she issued a press 2 release? She doesn't care what Ramsey Clark says. And that's 3 what she said in that recording. 4 What you learn from that, among other things, is the 5 fact that whatever Ramsey Clark did and said in the past served 6 as no precedent for Stewart, because she really didn't care 7 what he had to say or what his view was. 8 Now, as you know, the press release was issued on 9 June 13, 2000, to a Reuters reporter, Esmat Salaheddin, who 10 testified. He was here. 11 Let me just remind you of one thing. While heard 12 repeated instructions during the course of the trial that 13 newspaper articles are not in evidence for their truth, 14 Mr. Salaheddin's testimony about what Clark -- what Stewart 15 said to him during their conversation, that's in evidence. 16 Those are admissions of Stewart, and they are in evidence for 17 the truth. Those are statements that he told you she made to 18 him. That's in evidence for the truth, her admissions, 19 essentially, of her involvement in the crimes that she's 20 charged with in this case and those that involve issuing the 21 press release. 22 Now, interesting, when Sattar and Stewart spoke with 23 Salaheddin on June 13th, they all knew, both knew, of course, 24 Salaheddin was in Egypt. They were issuing this press release 25 to a Reuters reporter who was in Cairo, Egypt. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11283 4cuesat1 1 And that's significant. It's significant because 2 clearly they wanted Abdel Rahman's message delivered in the 3 Middle East. That's where the Islamic Group was. Either 4 members were in Egypt -- you know, members like Taha and Hamza 5 were in Afghanistan, that's where they were based. And whether 6 they were in Egypt or another Middle East country, their goal, 7 Stewart's, Sattar's and Yousry's goal, was to get the message 8 to the Middle East. 9 Stewart testified she knew lots of reporters here in 10 New York. In fact, she knew a Reuters reporter here in 11 New York named Jeanne King, who was on one or two of our 12 recordings we played to you. She was friends with Jeanne King. 13 But the interest and goal is to get the message to the Middle 14 East members so they know Abdel Rahman no longer supports the 15 ceasefire, is now supporting the return to violence and 16 killing. 17 The reason for that is obviously -- there's three 18 reasons that it's important. One is Abdel Rahman certainly by 19 that time, long before then, has joined the conspiracy with 20 Sattar and Taha to engage in a conspiracy of murder, killings 21 and kidnappings outside the United States. That's one. 22 Announcing the press release, which was one of the 23 goals of Sattar and Taha, was to give them legitimacy, give 24 their position, their anticeasefire position legitimacy. So 25 it's out there announced by a lawyer, not by them, by a lawyer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11284 4cuesat1 1 representing Abdel Rahman. Gives their position the legitimacy 2 and has one other function and purpose, which is it assists 3 Taha and Sattar in convincing others in the Islamic Group to 4 join them, to end the ceasefire and resume the killings and the 5 violence. 6 Just a comment or two about the language that Stewart 7 used. We asked her about it when she testified. She didn't 8 use any soft language, like Abdel Rahman doesn't support the 9 initiative anymore; Abdel Rahman doesn't support the peace 10 initiative anymore. She came out and said, used the plain 11 language that she intended to use: He no longer supported the 12 ceasefire. A military term. A temporary halt to hostilities, 13 a stoppage of violence. 14 That's the word she used. That's the word she meant 15 to use. She's a lawyer. As you well know, having heard maybe 16 too much of us talking for a while, or hearing too much of us 17 talk, lawyers' tools, the actual essence of a lawyer's 18 practice, particularly in the courtroom, is the words they use. 19 The choice of words is significant. She understands that. She 20 understood it then. She was making the message as clear as 21 possible: End the ceasefire, start the violence and the 22 killing. 23 Interesting, when Stewart testified, she characterized 24 the press release like this, this is her testimony: It was an 25 invitation to a discussion, she said. It was a communication SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11285 4cuesat1 1 that we felt was necessary to maintain his posture within the 2 support group in Egypt. Invitation to a discussion. There is 3 nothing in Mr. Salaheddin's article about inviting anybody to a 4 discussion. It was a clear declaration: End the ceasefire, 5 start the violence and killing. 6 Maintain his posture in his support group? 7 Interesting way to describe the Islamic Group, a support group. 8 As you well know by now, they're not a support group. They're 9 a terrorist organization. But obviously Ms. Stewart can't get 10 on the stand and say, we wanted to maintain his position in 11 this terrorist organization. That's what they are. That's 12 what they were. That's what they do, commit acts of terrorism. 13 They're not a support group. They're a terrorist organization. 14 Interesting, in the press release itself and in 15 Mr. Salaheddin's article, what does Stewart say besides the 16 fact she announces his withdrawal, support for the ceasefire? 17 If you go to the second page of the article, and the article is 18 attached to Government Exhibit 9, that is Mr. Fitzgerald's 19 letter to Ms. Stewart of August 3, 2000. 20 When he announces, says to her she has to sign a new 21 affirmation and attaches a number of articles, Mr. Salaheddin's 22 article is in amongst the articles that Mr. Fitzgerald 23 attaches. And that's the article of June 14, 2000, where the 24 announcement of the withdrawal is actually in that article. 25 That's the article that Salaheddin created after his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11286 4cuesat1 1 conversation with Stewart on the phone on June 13th. It's 2 published the next day by Reuters. 3 On the second page of that article, she says to 4 Mr. Salaheddin, they, meaning the US authorities, may bar me 5 from visiting him because of this announcement. 6 Didn't Ms. Stewart testify and say, issuing a press 7 release was perfectly proper under the SAMs? Didn't she tell 8 you that Pat Fitzgerald was too good a lawyer not to understand 9 that issuing press releases while representing Abdel Rahman was 10 lawyering, was appropriate? Didn't she say that to you in her 11 testimony? 12 Well, if that's what she really truly believed back on 13 June 13th of 2000, why is she saying to Salaheddin, my issuing 14 this press release may result in me being prevented from never 15 seeing or not seeing Abdel Rahman again? Why is she saying 16 that to Salaheddin? Because she knows full well she's 17 violating the SAMs, committed a criminal act and this bubble 18 concept, this concept doesn't exist. It only existed when she 19 walked into this courtroom before the trial started and created 20 it, because it didn't exist on June 13th when she's talking to 21 Salaheddin and saying to him, among other things, besides Abdel 22 Rahman's withdrawal of support for the ceasefire, by doing what 23 I'm doing now, I'm going to be in trouble. That's what she 24 says. Because she knew then and understood that, in fact, she 25 was violating the laws and violating the SAMs and engaged in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11287 4cuesat1 1 wrongdoing. 2 Now, after the press release was actually issued -- 3 and you remember, Yousry wasn't present in the -- in Stewart's 4 office here in Manhattan when they spoke to Salaheddin and 5 issued the statement. But Stewart said to you he was planning 6 to be there, just couldn't make it for the big event. 7 But Yousry was still quite interested. He wasn't just 8 one of these people who translates and then goes about his own 9 business, because he has an interest in what's going on with 10 the press release, what's going on with the ceasefire, what's 11 going on with Abdel Rahman's statements. 12 And so about an hour or so after the press release is 13 issued -- and it's in Government Exhibit 1104X -- on the same 14 day, June 13, 2000, he calls Sattar on the phone and they have 15 a very cryptic conversation in which he asks Sattar, quote, did 16 Lynne do that thing? Meaning obviously issue the press 17 release. And Sattar said, yeah, she has, it's done. 18 Now, Sattar wasn't satisfied with just talking to one 19 reporter because, of course, it was important to get this 20 message out and get it published in the Middle East so that 21 other Islamic Group members and associates could get the 22 message and join Taha and Sattar in their efforts to end the 23 ceasefire and resume the violence. 24 And what happens was there's a conversation that's 25 recorded on three actual exhibits, Government Exhibits 1105X, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11288 4cuesat1 1 1106X and 1107X, also on June 13th, same day as the press 2 release, after the press release is issued to Salaheddin, where 3 Sattar talks to a reporter named Mohammed Al-Shafi'i. You 4 remember that name perhaps. 5 And he says to Al-Shafi'i, you know, we're issuing a 6 press release through Reuters. Be aware of it. Look for it. 7 You'll want to know what it's about. And then he says to 8 Al-Shafi'i -- he describes Abdel Rahman's statements, and then 9 these are his words. He says that Abdel Rahman -- this is a 10 quote -- is withdrawing his support to the initiative to halt 11 the military operations. We did not gain anything from this 12 initiative. The prisons are still full, the military courts 13 are still in process and the death sentences are ordered and 14 executed. 15 Well, Sattar makes the statement as clear as it can 16 be, okay. His -- we're withdrawing his support for the 17 initiative to halt military operations. And as we talked about 18 yesterday, "military operations" is just sort of a nice way of 19 saying terrorist acts. That's the way terrorists talk about 20 them, I guess. 21 And as you know, after the release, the press release 22 was issued to Salaheddin, it made its way into a number of 23 Arabic language newspapers in the Middle East, Asharq Al-Awsat 24 and others as well. And there was quite a reaction to the 25 press release, because, if you recall, there were a number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11289 4cuesat1 1 proceasefire Islamic Group members who were real upset about 2 it, to say the very least, including Salah Hashem and Hamza. 3 And there were conversations and evidence in which Salah Hashem 4 talks to Taha and essentially is debating with him, how can you 5 have issued this statement? You don't understand what the 6 conditions are like here in Egypt. 7 If you recall, Salah Hashem is in Egypt, Taha is in 8 Afghanistan or somewhere else in the Middle East. He doesn't 9 know what's actually happening in Egypt. And there's a debate. 10 You can find that, by the way, in Government Exhibit 1111X, 11 which was a June 14, 2000, conversation. And clearly Taha and 12 Salaheddin disagree strongly with one another as to whether the 13 initiative -- whether the ceasefire has really benefitted the 14 Islamic Group. Salah Hashem and apparently Muntasir Al-Zayat, 15 the lawyer, strongly believe that it has been effective and 16 that the group has benefitted in many ways. And Salah Hashem 17 describes the ways they have benefitted from it. 18 You know that after the release, press release 19 occurred, persons, most likely proceasefire Islamic Group 20 members, issued statements to the press denouncing Sattar, 21 calling him a CIA agent, a United States government agent of 22 some kind, and trying to -- and stated in their whatever press 23 releases they issued, that, in fact, the withdrawal of support 24 by Abdel Rahman was a fabrication. It was a phony story. It 25 was created by Sattar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11290 4cuesat1 1 And you know Sattar was real upset about that and was 2 very unhappy about it. There is a couple of conversations he 3 had with Al-Zayat about it. They're at Government 4 Exhibit 1250X and 1114X, both on June 15, 2000, where he's 5 upset because he's being called a government agent and his 6 credibility is being challenged. He's all upset about that. 7 Now, you know on June 15, two days after Stewart 8 issues the press release, she has a conversation with Lisa 9 Sattar. Lisa Sattar is the wife of the defendant Ahmed Sattar. 10 Apparently Stewart was calling to talk to Ahmed Sattar about 11 the press release, and they have a -- he's not home so Stewart 12 talks to Lisa Sattar. And they're talking about the press 13 release and, more significantly, the reaction in the Arabic 14 language media to the press release. 15 They're talking about how it's the front page news on 16 the major Arabic newspapers in the Middle East. That was 17 Sattar's goal, get on the front page. It's got to be 18 important. 19 It's mentioned that it's on the television. Arab 20 language television stations are announcing Abdel Rahman's 21 withdrawal of support. 22 So Taha and Sattar have accomplished their goal of 23 getting it publicized. It's out there and it's out there in a 24 very big way; front page news on the papers, on the TV stations 25 as well. And we're going to play for you now that recording. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11291 4cuesat1 1 It's not terribly long. 2 Why don't you grab your earphones and turn them on. 3 This is the conversation, it's June 15th, 2000, 4 between Stewart and Lisa Sattar. 5 Don't forget to turn them on. 6 (Recording played) 7 MR. DEMBER: Much to talk about in this conversation. 8 First of all, one thing you know off the bat, 9 Ms. Stewart doesn't know she's being recorded. This is the 10 recording, the wiretap on Sattar's phone. That's how it's 11 being picked up. And Stewart has no idea, no knowledge that 12 her conversation is being recorded. 13 Is she talking openly and freely? Certainly. 14 Apparently she's very friendly with Lisa Sattar, is comfortable 15 with her, apparently is a friend and is talking honestly and 16 freely. She's not hindered by anything. She's not trying to 17 justify anything. She's, for all intents and purposes, we can 18 conclude, speaking honestly. 19 One thing you learn just listening to the tone of the 20 voices is Stewart is quite pleased with herself. She issued a 21 press release, it's front page news in the Middle East and 22 she's actually pleased by that. She's happy by that, okay. 23 And what does she say? She initiates this idea, I 24 can't hide this from Pat Fitzgerald. Well, hold it. If she's 25 entitled to issue press releases, that's her belief, if this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11292 4cuesat1 1 what she thinks is lawyering, that the SAMs allow her to do it, 2 even though the SAMs clearly, clearly prevent her from issuing 3 Abdel Rahman's statements, why is it she on her own says, oh, I 4 can't hide this from Pat Fitzgerald? Well, obviously, 5 obviously she knows what she's doing is a clear violation of 6 the SAMs. And what she's doing is illegal. 7 In fact, it appears from the conversation that Lisa 8 Sattar knows it's illegal, too, and improper, because she tells 9 Stewart that earlier that morning she had asked Ahmed -- that's 10 Mr. Sattar over here -- whether Stewart would get in trouble 11 because she issued the press release. So Lisa Sattar 12 apparently knows that that's a violation, too. Maybe she read 13 the SAMs that her husband had in their apartment on Staten 14 Island that were seized that we talked about yesterday. But 15 she knows it's a violation, too, apparently, or has a good idea 16 that it certainly is. 17 Where is -- when she says this, when Stewart said, I 18 haven't heard from Pat Fitzgerald and I can't hide this from 19 Pat Fitzgerald, where is the "I'm not concerned because there's 20 a bubble we're operating under" or "we're allowed to do this so 21 I'm not concerned"? because clearly Lisa Sattar is expressing a 22 concern that she had about Stewart that she shared with her 23 husband. And so where is the conversation from Stewart saying, 24 no, no, no, there's not a concern here? Whether she uses the 25 word bubble or not, why isn't she saying to Lisa Sattar openly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11293 4cuesat1 1 and honestly, I'm not concerned here, there shouldn't be 2 repercussions because it's understood, of course, by Pat 3 Fitzgerald and the US Attorney's Office that I can do what I'm 4 doing, which is issue press releases with Abdel Rahman's 5 statements withdrawing his support for the ceasefire? 6 You don't hear any of that. You hear the opposite of 7 that, because this bubble concept didn't come into existence 8 until right before this trial. Didn't exist back in June of 9 2000. It's something that had to be created for this 10 courtroom, because if there is not a bubble created for this 11 courtroom, then Stewart is guilty of involving -- involvement 12 in Count 1, conspiring to defraud the United States; she's 13 guilty of Count 6, making false statements to the United States 14 government when she submitted to the US Attorney's Office the 15 attorney affirmation dated May 16, 2000, that she signed before 16 the May 2000 visit when she went to the -- before she went to 17 the prison, violated all kinds of provisions in the SAMs and 18 then, of course, violated the SAMs once again by issuing the 19 press release. 20 So rather than say to you, ladies and gentlemen, I'm 21 guilty of these two counts, she has to make a story up. And 22 that's the bubble, because if there was a bubble, if she 23 legitimately really believed that she could do -- issue that 24 press release, you'd hear a different conversation here from 25 what you heard. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11294 4cuesat1 1 Rather than saying, I'm going to have to live with the 2 repercussions, why isn't she saying, oh, no, there aren't going 3 to be any repercussions because I'm allowed to do this? I'm 4 just doing lawyering. She doesn't say that. 5 Interesting, what she does say is it's the right thing 6 to do. Issuing this press release is the right thing to do. 7 Knowing what she knows about the Islamic Group, knowing what 8 she knows about the ceasefire, knowing what preceded this 9 ceasefire, knowing that Abdel Rahman's statement is a call for 10 withdrawing support for the ceasefire and resuming violence, 11 that is the right thing to do? Exposing innocent people in 12 Egypt to murder is the right thing to do? She knows better. 13 Well, I guess if you believe, like Stewart believes, 14 that like Sattar, like Abdel Rahman, that there needs to be a 15 change in the government of Egypt and the only way that's going 16 to come about is by violence, then I guess, yeah, that may be 17 the right thing to do. But that's criminal. It's a criminal 18 act. And that's what she's saying. Right thing to do? You 19 know better. 20 Then the following day, June 16, 2000, there's another 21 interesting conversation. This one is with Stewart and Yousry. 22 It's not an exhibit that the government introduced but both 23 Stewart and Yousry introduced this particular exhibit in their 24 defenses. It's -- the exhibit is LS701T or MY1713. 25 And let me sort of set the stage for you. It's up on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11295 4cuesat1 1 the screen, we'll leave it there, but before you look at it, 2 let me tell you about it. 3 It's a conversation in the morning of June 16, 2000. 4 And Yousry and Stewart are talking about Sattar. Yousry is 5 telling Stewart that Sattar is all upset because in the media 6 he is being portrayed -- meaning Sattar, is being portrayed as 7 a CIA operative, a spy, a government agent and that he planted 8 this false story that Abdel Rahman had withdrawn his support 9 for the ceasefire. 10 And Yousry tells Stewart that Sattar is very upset. 11 He's not going to work, he's beside himself. And what happens? 12 Well, Stewart and Yousry talk about, gee, what should we do 13 about this? And one of the things Stewart says is, gee, maybe 14 I should go call the reporter again, meaning Salaheddin, and 15 clarify the situation. 16 And up on your screen on pages five to six of the 17 transcript, it's -- again, this exhibit's available for you. 18 It's -- again, these are the transcripts. The recording is in 19 English, of course, the recording is what's in evidence. But 20 they're talking about -- Stewart's talking about how obviously 21 Sattar had nothing to do with this. She's the one who issued 22 them. 23 And here's what she says about this: You know, I 24 think I've got to call him back and say, what ridiculous stuff 25 is this? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11296 4cuesat1 1 The "him" apparently is Salaheddin. 2 Then she says, I'm risking my whole career to bring 3 this out. 4 Yousry says in response, yeah. And then they blame it 5 on -- apparently he's referring to Sattar. 6 And Stewart responds -- she responds, and then she 7 says, do you think I'm doing this lightly? Are you crazy? 8 Would I lie? It's ridiculous. And Ahmed said sorry, I just 9 happened to be around as a translator. 10 What is Stewart saying? This is the day after the 11 Lisa Sattar conversation. They're talking about the fact that 12 Sattar is being blamed for the press release, okay. They are 13 blaming him in the Arabic press for being the one who 14 fabricated this press release, fabricated Abdel Rahman's 15 statements. 16 And what is Stewart saying? What, are they crazy, the 17 people who think that Sattar did that? She did it. She has 18 risked her whole career to do it. Risked her whole career. 19 She's risked her whole career, obviously, because she knows 20 she's violated the SAMs by doing it. She's committed a 21 criminal act. That's why she's risked her whole career to 22 bring this out. That's what she's saying. 23 Why isn't she saying at that point, well, you know, he 24 didn't do it but I'm allowed to do it. There's this bubble out 25 there and this is lawyering. And I'm allowed to do this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11297 4cuesat1 1 because the SAMs really, while they say I can't do it and I 2 promised in the affirmation I wouldn't do it, I did it anyway. 3 But even though the SAMs say I can't do it and I promised I 4 wouldn't do it, I can do it. 5 No, she doesn't say anything like that. She doesn't 6 say there's a bubble or talk about the bubble concept of, oh, 7 the lawyers can do whatever they want, even though they're all 8 required to promise to abide by the SAMs. She didn't say that. 9 She's talking to Yousry. They're friends. They know 10 each other for years. She's talking openly and honestly to 11 him, candidly with him, and saying honestly and candidly, I'm 12 risking my whole career by doing this. How can they be blaming 13 Sattar? I'm in trouble for having my name in this press 14 release and having my name in the papers. How is it that they 15 blame Sattar, she says, because -- that's as clear an admission 16 as there can be. 17 Now, what's also interesting about the conversation is 18 the Yousry response. Okay, remember Mr. Yousry? Oh, I didn't 19 know anything was wrong with issuing a press release until, you 20 know, August of 2000 or afterwards, when Stewart was required 21 to sign a new affirmation. I thought press releases were fine. 22 We've debunked that theory, that testimony, yesterday. 23 But here's another example of it. When she says, I'm risking 24 my whole career by bringing this out, meaning issuing the press 25 release, what does Yousry say? Yeah. And then they blame it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11298 4cuesat1 1 on -- and then obviously he tails off, but he means Sattar; 2 meaning, yeah, you are risking your whole career, yes, I 3 understand you're risking your whole career because I, Yousry, 4 know what the SAMs prohibit you from doing. And what they 5 prohibit you from doing is issuing press releases with Abdel 6 Rahman's statements in them. He's saying, yeah, I understand. 7 I know what you're talking about. 8 If he at that point believed that the -- Stewart was 9 allowed to issue the press release, why isn't he saying, hold 10 it, Lynne Stewart, why are you saying this, that it's risking 11 your whole career? Why are you saying that? I don't 12 understand. I thought you guys could issue press releases 13 whenever you wanted to about anything, including Abdel Rahman's 14 words. 15 He doesn't. Because he understands. He understands 16 what she's done. Violated the law, violated the SAMs. So he 17 doesn't ask the question. 18 And just to mention briefly, a conversation that 19 Sattar has two days later on June 18th, 2000, with Taha, he 20 repeats what Stewart said to Yousry. He talks to Taha and he's 21 talking about the press release. And he says to Taha that the 22 lawyers before getting permission to visit Abdel Rahman are 23 required to sign, quote, papers saying that he is not allowed 24 to say anything or pass anything. That is why I told you this 25 woman, meaning Stewart, risked her whole future. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11299 4cuesat1 1 Where did he get that from? He got that from 2 obviously talking to Stewart. He got that because by issuing 3 the press release. He, Sattar, understood she was risking her 4 whole future, her whole career by issuing the press release. 5 Now, with others in the Arabic community, the Islamic 6 Group saying, uh-oh, this is a fabrication, it's false, it was 7 decided by Sattar and Yousry and Stewart, hmm, maybe we need to 8 issue another press release, okay, issue another press release, 9 reaffirming what Abdel Rahman has said. 10 And if you remember on the call we just played with 11 Lisa Sattar, Stewart said that there's going to be a legal call 12 on a particular day and that she was going to be present to see 13 whether the government prevented her from getting on the 14 telephone and talking to Abdel Rahman, because the press 15 release had been issued and she thinks, well, even though it's 16 in the Arabic language newspapers issued in the Middle East, 17 that the US Attorney's Office and Pat Fitzgerald may learn 18 about it and prevent her from getting on the legal call which 19 is supposed to take place on June 20th. 20 And she goes to Ramsey Clarke's office on that day and 21 is present during the legal call and gets on the phone and is 22 not prevented from doing so. And what happens then is she and 23 Yousry talk to Abdel Rahman. 24 Now, this is one visit before the start of the 25 recording of the legal calls by the FBI. They had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11300 4cuesat1 1 authorization starting on June 23rd to record the conversations 2 between Abdel Rahman and his attorneys. This is three days 3 before that, so it's not recorded. 4 But from the evidence and the testimony in particular 5 you know what happened during the call. They obviously talked 6 to Abdel Rahman about the press release. And Stewart said in 7 her testimony that they read to Abdel Rahman the newspaper 8 accounts of the press release; let him know what's going on 9 because they're thinking, we need to issue a second press 10 release, and he needs to know what the newspaper articles are 11 saying about the first press release. And they're obviously 12 trying to give him, or going to have him reaffirm what he's 13 already said, which is he's withdrawing his support for the 14 ceasefire. He wants an end to the ceasefire, a resumption of 15 the violence. 16 Now, what's interesting about the reading of the 17 newspapers is this: Stewart told you in her testimony that she 18 didn't know a thing about Taha until this trial, until this 19 case. Didn't know anything about him, despite the fact that 20 she's helped smuggle in a statement by Taha, about the al-Azhar 21 student uprising and is referred to in Taha's message in 22 Sattar's letter, she claims, oh, I didn't know who Taha is, 23 didn't know who this Abu Yasir guy was before the May 2000 24 visit. 25 Well, that's of course nonsense. She knew quite SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11301 4cuesat1 1 clearly who he was because she was there and had both of those 2 documents, the Sattar letter with Taha's message in it and the 3 statement by Taha, read to her before the visit. She knew who 4 he was. And she had also delivered his message seeking an end 5 to the ceasefire with Yousry to Abdel Rahman back during the 6 March 1999 visit. So she knew exactly who this guy was. But 7 it's further confirmation certainly that she knows who he is 8 during this telephone call. 9 What happens is they read him newspaper articles, 10 okay, and a number of those newspaper articles we put into 11 evidence. They were found in Yousry's home. And each and 12 every one of those newspaper articles is dated either on 13 June 20th, 2000, or beforehand. Each indicates, approved by 14 Lynne Stewart for reading, which, as you know, indicates that 15 Yousry can read them to Abdel Rahman. 16 And you also know Stewart never would approve anything 17 without Yousry reading articles, letters, newspapers to her 18 verbatim. So she knew exactly what was in them. And as we 19 briefly put each one of these newspapers on the screen, I'll 20 summarize what they say. 21 The first one's Government Exhibit 2312-45BT. It's a 22 June 19, 2000, Al-Hayat article. And as you see on the top 23 left-hand side, approved by Lynne Stewart, 6/20/2000. No doubt 24 before the legal call that day. And essentially -- and by the 25 way, look at the article during your deliberations, if you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11302 4cuesat1 1 like, and read it. I'll summarize it for you. 2 The article reported that Taha was Abu Yasir. It 3 actually said that in the article, Taha is Abu Yasir, 4 obviously. And it also says that the Islamic Group will 5 reconsider the ceasefire in light of Omar Abdel Rahman's 6 withdrawal of support. Wow, that's exactly what Taha and 7 Sattar wanted. It also talks about how the Luxor massacre was 8 committed by the Islamic Group seeking to free Abdel Rahman. 9 Okay. Let's go to the next article. It's Government 10 Exhibit 2312-49T. It's a June 15, 2000, article in Al-Hayat, 11 once again, approved by Stewart. And it talks about the 12 following: It contrasts the majority of the Islamic Group, 13 which is led by Hamza, that wants to maintain the ceasefire 14 with the Taha wing of the Islamic Group that rejects the 15 ceasefire and wants to return to violence. 16 And it indicates that Abdel Rahman's statements 17 clearly favor Taha's faction of the Islamic Group. Well, of 18 course it does. You know that it does. You have a newspaper 19 reporter apparently reading it, the statement, the press 20 release, and saying clearly, obviously, it favors Taha. That's 21 what was the intention that Taha and Sattar had, and Yousry and 22 Stewart for that matter. 23 Let's go to the next article, Government 24 Exhibit 2312-47BT. It's a June 16, 2000, Al-Hayat article, 25 once again, approved by Stewart as indicated on the translation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11303 4cuesat1 1 of the article. And it describes that Abdel Rahman's support 2 for the ceasefire in 1997 made it happen. 3 And what that tells you is, according to at least the 4 newspapers, Abdel Rahman is an influential guy. He's an 5 important person. Even though he's in jail in America spending 6 the rest of his life in jail, he still has the power and the 7 influence to influence other people within his group to 8 actually, back in '97 at least, support the ceasefire. 9 But now, in June 2000, he's going in the other 10 direction. He's no longer supporting the ceasefire. And 11 obviously that's a concern to everyone who favors the 12 ceasefire. 13 And the last article I want to talk about is 14 Government Exhibit 2312-45 AT. It's an undated article written 15 by Mohammed Al-Shafi'i. We've mentioned his name before. It 16 indicates on the top it's approved by Lynne Stewart, also on 17 June 20th, 2000. It's the date of this call. And it's 18 entitled, "Islamic Group threatens Washington with an imminent 19 action." 20 Okay. In the article Taha threatens the United States 21 and talks about ending the ceasefire in light of Abdel Rahman's 22 withdrawal of support. Now, all of these articles are read to 23 Stewart either on June 20th or beforehand. Before they're read 24 to Abdel Rahman. 25 One thing you learn about that, you know about that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11304 4cuesat1 1 is, well, hold on, didn't Stewart say in her testimony she 2 didn't know a thing about this guy Taha until this case or this 3 trial? Yeah, well, these articles prove the lie to that, put a 4 lie to that statement by her. 5 She knew about Taha. She knew all about him. What I 6 just summarized for you, which appears in those articles, is 7 what you knew about him as well. She knew who Taha was. She 8 knew that Abu Yasir was Taha. And when she testified here in 9 court, she was dishonest with you when she said she didn't know 10 who Taha was. 11 Now, you know who -- what Taha is, who he is. You 12 know what he's all about. So it's not surprising that she 13 would want to distance herself from Taha as best she could. 14 He's the bad news. He's a bad guy. He's a militant terrorist. 15 He's the worst type of terrorist that exists. Not surprising 16 that she doesn't -- she wants to distance herself from him. 17 In fact, when Yousry testified, if you recall, we 18 asked him on cross-examination about his knowledge of Taha. 19 And initially he tried to minimize how much he knew and when he 20 knew it. But with further cross-examination, he conceded that 21 he learned about him early on, knew about the fact that he was 22 a leader of the group. Knew about the fact that he was in 23 charge of the military wing or training for terrorist 24 operations in Afghanistan. He knew a lot about this guy and he 25 knew about it well before 2000. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11305 4cuesat1 1 But not surprising, Yousry, like Stewart, wants to 2 distance himself from Taha as best he can, because Taha is 3 nothing short of very bad news. 4 On the other hand, then there's Sattar. He can't 5 distance himself from Taha. As much as he probably, sitting 6 there right now, would like to and would like to before this 7 trial started, there's too many conversations, too many 8 incriminating, damaging conversations with Taha; aligning 9 himself with Taha, working with Taha for violence, working with 10 Taha to issue a fatwah, working with Taha to end the ceasefire. 11 He is married to the guy. As he told one person on 12 the telephone, they're friends. They're more than friends. 13 They're coconspirators, cocriminals in the same criminal 14 enterprise, same criminal conspiracy. 15 And all Sattar could tell you on the witness stand 16 about it was, I'm just trying to help Egyptians and other 17 Muslims. That's all I was trying to do. Well, you know 18 better. 19 The press release -- what comes of this telephone call 20 with Abdel Rahman on June 20th is a second press release. And 21 in the second press release, Abdel Rahman reaffirms what he was 22 saying in the first press release, reaffirms that what he said 23 on May 20, 2000, during the second day of that visit in 24 Minnesota was, I am withdrawing my support for the ceasefire. 25 I support a resumption of violence and killing in Egypt. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11306 4cuesat1 1 That's what he's doing. 2 And by the way, if you want to actually look at what 3 the press release looks like, it's Government Exhibit 2663. It 4 was found in Stewart's office. She conceded that's what it was 5 and that she had issued it. Once again, violating the SAMs 6 among other things. 7 Now, as you know, the second press release was also 8 issued. There were conversations with everyone's favorite 9 press agent, Yassir al-Sirri, from London. And the statement 10 got out and it was published. And as you know, word got out 11 and there were other articles published in the Government 12 Exhibit 9. In one of the articles attached to Mr. Fitzgerald's 13 letter to Stewart is Salaheddin's second article about the -- 14 which talks about the second press release. And you can read 15 it right there. 16 Let's talk a little bit about Pat Fitzgerald and the 17 government learning about what Stewart and Yousry and Sattar 18 were doing. 19 Mr. Fitzgerald testified that back in June of 2000 he 20 read press reports that Abdel Rahman had issued this statement 21 withdrawing his support for the ceasefire, read it in a Reuters 22 article, obviously Mr. Salaheddin's article. And you know this 23 is the first time that Pat Fitzgerald or anyone in the United 24 States Attorney's Office learned about any of the defendants' 25 conduct in this case, anything about what they had done. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11307 4cuesat1 1 And all he learned at that point was that a press 2 release had been issued. He didn't know about messages being 3 passed back and forth, who they were being passed back and 4 forth. All he knows is what he's reading in the papers, okay, 5 and that is that Lynne Stewart issued a press release 6 announcing Abdel Rahman's withdrawal of support for the 7 ceasefire. 8 And you know that this is the first time -- the reason 9 why this is the first time Pat Fitzgerald learns about the fact 10 that, gee, something must have happened during either calls or 11 visits to Abdel Rahman, because this is the first time it's 12 publicized. What happened back in March of 1999 during that 13 visit, September of '99, February of 2000 was never publicized. 14 All the things we talked about yesterday during those visits 15 were never publicized. So he didn't know about them. 16 Now, you learned from Mr. Fitzgerald that his initial 17 instincts were, gee, maybe I better start a investigation here, 18 criminal investigation. It sounds like obviously issuing press 19 releases with this terrible message may be criminal. And his 20 first thoughts are, let me maybe start or initiate a criminal 21 investigation. And that was his plan to do so. 22 And he told you that he had participated in a meeting 23 with the FBI on June 19th, 2000, obviously after the issuance 24 of the first press release. At that meeting he was told to 25 stand down, and he discussed that fact with his boss, Mary Jo SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11308 4cuesat1 1 White, who was the US Attorney at the time, United States 2 Attorney. And a decision was made to stand down, meaning not 3 to start an investigation. 4 Now, you folks know clearly that there was an 5 investigation already under way. You know that. At that time 6 when Mr. Fitzgerald planned to do an investigation, a criminal 7 investigation having to do with the issuance of the press 8 release, you know there was an investigation that preceded that 9 that was ongoing during all this time. 10 In fact, you know that that investigation started at 11 the very least back in 1996 and continued until these 12 defendants were arrested. You know that because we read and 13 played for you all kinds of recordings starting in 1996, in 14 1998, 1999, 2000, 2001. All these recordings were being 15 intercepted by the FBI. An investigation existed. 16 Obviously Pat Fitzgerald and the United States 17 Attorney's Office was not a part of that investigation. If 18 they were, they wouldn't say, and Pat Fitzgerald wouldn't like 19 to say I -- 20 MR. TIGAR: I object to this, your Honor. 21 THE COURT: All right. Sustained. Stricken. 22 MR. TIGAR: Stricken. 23 THE COURT: Sustained, stricken. Jury is instructed 24 to disregard. 25 MR. DEMBER: You know, ladies and gentlemen, an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11309 4cuesat1 1 investigation existed. And that investigation, that 2 investigation certainly was picking up information and 3 intelligence about Sattar, Yousry and Stewart, but you know 4 from having been reviewing the transcripts, hearing the calls, 5 that that investigation was also picking up information about 6 some other rather dangerous people: Taha, Atia, Hamza. He was 7 also gathering information about them, wasn't he? 8 You knew and you know at that time Taha, Atia were 9 Islamic Group leaders, officials. Held high positions. You 10 knew Taha and Hamza were in Afghanistan. You know that Atia 11 was a fugitive in Egypt being looked for by Egyptian security 12 forces. Certainly Pat Fitzgerald at that time started a 13 criminal investigation and filed charges, that other 14 investigation from which these recordings which we've -- 15 MR. TIGAR: I object to this, your Honor. 16 THE COURT: Sustained. Sustained. Stricken. 17 MR. TIGAR: I'd like to be heard at the recess. 18 THE COURT: Jury is instructed to disregard. This 19 might be a convenient time to take a break. 20 Ladies and gentlemen, please, please remember my 21 continuing instructions. Please, don't talk about this case at 22 all. Always remember to keep an open mind until you've heard 23 all of the evidence, I have instructed you on the law, you've 24 gone to the jury room to begin your deliberations. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11310 4CUMSAT2 1 THE COURT: Please be seated, all. 2 MR. TIGAR: If your Honor please, the matter now being 3 discussed by counsel for the government was first brought to 4 the Court's attention during the hearing on September the 28th 5 and 29th of 2003 when Mr. Fitzgerald testified. There was that 6 memorandum. It was a classified memorandum. There was 7 extensive discussion of it. It remains sealed for various 8 purposes. That's the procedural history. 9 I made the deliberate tactical decision not to open up 10 certain matters and I made that decision and therefore not put 11 in play that memorandum. The government counsel knows that. 12 They were here for that. This piece of summation was not only 13 improper. I submit it was deliberate misconduct. It was 14 trespassing on what we all have been working on for this whole 15 trial. I move for a mistrial, or, in the alternative, that the 16 prosecutor be admonished in the presence of the jury for doing 17 it. 18 MS. BAKER: I would like to respond so Mr. Dember can 19 have a break since he is doing all of the speaking over the 20 last couple of days. 21 This issue, when it came up during Mr. Fitzgerald's 22 testimony, was an issue of whether the government could 23 establish that the investigation that had been going on was an 24 intelligence investigation, and the Court ruled that we 25 couldn't, and we didn't. What Mr. Dember has now sought to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11311 4CUMSAT2 1 argue is fair inference from evidence that is in the record and 2 that evidence is Scott Kerns and other FBI personnel introduced 3 into evidence recordings made by the FBI starting in 1996. The 4 first recording that the government put into evidence was from 5 1996. Others were put into evidence from 1998, 1999, early 6 2000, all prior to the time that Pat Fitzgerald testified that 7 he thought about starting an investigation and then was called 8 into a meeting with the FBI. 9 So the obvious inference from the recordings that are 10 introduced into evidence is that the FBI was conducting an 11 investigation of some sort. Granted, there has never been any 12 testimony that it was an intelligence investigation. That was 13 what the Court precluded in response to objections by the 14 defense. But clearly there was an investigation by the FBI 15 starting in 1996. And then Mr. Fitzgerald testified clearly 16 during his testimony that he first learned what the FBI was 17 doing after the issuance of the press releases in June of 2000. 18 And then he conferred with Mary Jo White and decided not to 19 take additional steps on his own or through the U.S. Attorney's 20 Office. 21 But these defendants raise the issue in their opening 22 statements that the government, knowing what the defendants 23 were doing, didn't act. And in light of those arguments that 24 were previously made by the defense and in light of all of the 25 evidence that is in the record that supports the argument that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11312 4CUMSAT2 1 Mr. Dember has now made, his argument is a fair one. And we 2 would respectfully ask the Court to reconsider the ruling 3 sustaining the objection and to allow the argument to stand in 4 Mr. Dember's summation, allow him to finish making the 5 argument, and deny any further relief sought by Ms. Stewart. 6 MR. TIGAR: If your Honor please, if we look back over 7 the transcript, what Mr. Dember said is not only there was 8 another kind of intelligence investigation -- 9 THE COURT: He never said intelligence. 10 MR. TIGAR: Thank you. May I start again. He told us 11 that this investigation was picking up information about some 12 other rather dangerous people, Taha, Atia, and Hamza. He was 13 gathering information about them, wasn't he? You knew and you 14 know at that time. You knew Taha was in Afghanistan. You know 15 Atia is a fugitive in Egypt. I don't know how you know Atia is 16 a fugitive in Egypt except Mr. Sattar was asked about it on 17 cross-examination, that there were recordings that were 18 admissible only against Mr. Sattar. That's a separate issue. 19 Although he didn't use the words intelligence investigation, it 20 couldn't be clearer. He is attempting to justify a 21 prosecutorial decision not to proceed. That's what he is 22 saying. They knew about it, but they decided not to proceed. 23 Now, if that is the issue and if Ms. Baker's position 24 is to be sustained that that's in play, fine, we will argue it, 25 that in 2000, in the year 2000, the government decided to stand SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11313 4CUMSAT2 1 down. When Janet Reno was Attorney General, it required an 2 Attorney General far more reckless than her to get a case like 3 this begun. If that's what is in practice, that's what is in 4 practice. I respectfully submit what was done here was 5 improper and it was done to take advantage of a whole series of 6 decisions that were made to exclude this very issue from 7 evidence. 8 MS. BAKER: Your Honor, Mr. Tigar is very cognizant of 9 the distinction between an intelligence investigation and a 10 criminal investigation, as are we all, because it relates to 11 certain legal issues that were litigated earlier in the case. 12 The jury has never heard that distinction drawn. Mr. Dember 13 was very careful in his arguments just now not to use the word 14 intelligence investigation. 15 The only thing the jury knows is that the FBI was 16 investigating. Then Mr. Fitzgerald, on behalf of the U.S. 17 Attorney's Office, learned of certain events. He considered 18 taking some additional action, met with FBI and then the U.S. 19 Attorney's Office through Mr. Fitzgerald, did not take action. 20 That is what was proved to the jury through the evidence at 21 trial. That is all that Mr. Dember has argued and for that 22 reason we would ask the Court, as I said earlier, to reconsider 23 the ruling on the objection. 24 MR. TIGAR: Not to prolong this, your Honor, but your 25 Honor sustained an objection to a question to Mr. Fitzgerald SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11314 4CUMSAT2 1 about what he was told. And the reason the objection was 2 sustained was that we weren't going to get into the hearsay. 3 He was told something. He had a conversation and he made a 4 certain decision. This whole line of argument is an attempt to 5 infer from the existence of the inadmissible and never received 6 hearsay what the conversation was and the considerations were. 7 That's the problem. Had that objection not been sustained, 8 then, of course, we would have had a compulsory process right 9 to put those agents on the stand and find out what really 10 happened, and not what Mr. Fitzgerald decided that he wanted to 11 tell us when he got it. 12 MS. BAKER: Your Honor sustained an objection to 13 certain additional testimony that we sought to elicit from Mr. 14 Fitzgerald about what he was told. The answer by Mr. 15 Fitzgerald about standing down was permitted and was given and 16 is evidence that is in the record. And Mr. Dember has not 17 argued anything beyond that. He has not argued anything that 18 would rely on anything that was sought and successfully 19 objected to as hearsay through Mr. Fitzgerald. 20 MR. RUHNKE: Your Honor, I want to say I join the 21 objection on behalf of Mr. Yousry. It also seems very plain 22 that there was an effort, deliberate on the part of Mr. Dember 23 to say to himself, how close can I come to telling the jury 24 that this was an intelligence investigation without saying the 25 words this was an intelligence investigation? For that reason, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11315 4CUMSAT2 1 I join Mr. Tigar's application. 2 MS. BAKER: Your Honor, I rise because that is unfair 3 to Mr. Dember and I want to note the government's objection to 4 that for the record. As I said earlier, everything that 5 Mr. Dember argued is supported by evidence in the record, and 6 however your Honor ultimately rules. And as I said, we ask you 7 to reconsider, there is no basis for these sorts of attacks on 8 Mr. Dember. 9 If your Honor is looking for the testimony, I can 10 provide you with the citation to Mr. Fitzgerald's testimony. 11 THE COURT: I have a recollection of the testimony, 12 based upon what the parties have said. 13 First of all, the motion for the mistrial is denied. 14 There is nothing that the government said that is so 15 prejudicial that the prompt and curative instructions that the 16 Court gave sustaining objections and striking the line of 17 argument are not wholly sufficient. Indeed, what the 18 government had been saying at that point was to repeat evidence 19 that, in fact, is in the record. 20 The government's application that I allow the line of 21 argument to continue is denied. The line of argument is, in 22 fact, irrelevant. All of the recordings are in evidence. Why 23 the recordings were made and the nature of the investigation, 24 which the government did not mention, is itself irrelevant. 25 The evidence is there from the recordings. It is also true, so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11316 4CUMSAT2 1 far as I can tell, but I'll certainly listen to the parties. 2 And if any defendant raises this in summations, then, of 3 course, I would have to reconsider it. 4 When this issue initially came up, the government 5 argued that, if memory serves me right, that the government 6 should be permitted to argue something about the nature of the 7 investigation in order to counter what the defendants were 8 suggesting in opening, which is if this were such a big deal, 9 why didn't the government do something about it? But I did not 10 allow that and I stopped that for a variety of reasons which 11 are all reflected in the record, over the government's 12 objection. But I stopped that. And so having stopped it 13 there, summations should not be the time to open that up unless 14 the defendants for some reason begin to make those kinds of 15 arguments in their summations. 16 It is also reinforced by a couple of other things. 17 Why Mr. Fitzgerald stood down is irrelevant. The evidence is, 18 he stood down, further, again, unless the parties argue to me 19 that there is something there that I am not -- that I don't see 20 from all of the evidence in the case and the arguments of the 21 parties. 22 The second somewhat related issue is, as you already 23 know from the draft of the charge, whether the government was 24 even misled by this admission of any of the documents at issue 25 is itself irrelevant so that whether Mr. Fitzgerald in fact SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11317 4CUMSAT2 1 knew about anything would be removed from what the jury has to 2 decide in the case. So the government's application that I 3 reconsider my prompt sustaining of the objections and striking 4 that argument is denied. And my only question which I 5 addressed to the parties is whether, in view of all of the 6 evidence, should I give the additional instruction which is, 7 why Mr. Fitzgerald stood down is irrelevant to any matter that 8 you have to decide. 9 MS. BAKER: Your Honor, we would ask that you not give 10 such an instruction, and I want to respond to what the Court 11 has stated in announcing its decision just now. The defendants 12 squarely in their openings raised the issue, argued, 13 essentially, that the jury should infer that there was no real 14 risk of violence here, that the government never thought that 15 there really was a conspiracy to kill or kidnap or a 16 solicitation of violence going on, or materials supporting of a 17 conspiracy to kill or kidnap. And this argument was made most 18 clearly by Sattar's counsel in his opening. 19 Because had the government really thought that there 20 was any risk of violence, the government clearly would have 21 acted immediately in arresting people, charging people, but 22 they didn't do that. And so this issue, which was squarely 23 raised by the defendants in openings, is broader than just the 24 Count 1 conspiracy to defraud the U.S. And so the Court's 25 point that as a legal matter it is legally irrelevant because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11318 4CUMSAT2 1 the U.S. doesn't actually need to be misled doesn't address 2 this issue as it relates particularly to Counts 2 and 3 and as 3 it was squarely raised by Sattar's counsel in his opening. 4 And the issue here is essentially that there was an 5 FBI investigation going on prior to the time in 2000 when Mr. 6 Fitzgerald learned of the press releases. He hadn't known of 7 that investigation. He learned of the investigation, which was 8 being done by the FBI and had been going on for a while. He 9 learned of it after he learned of the press releases; and then 10 after learning of that investigation, didn't pursue criminal 11 charges. 12 But the FBI's investigation continued, which is also 13 proved by the evidence in this case, evidence in evidence, 14 because additional recordings made by the FBI are in evidence, 15 recordings made all throughout the rest of 2000 and into 2001. 16 Indeed, the latest one that we put into evidence was 2002. So 17 the issue here is that the defendants have squarely raised this 18 issue in their openings that the government didn't act and that 19 the jury should infer from that that the government thought 20 that there wasn't any criminal activity going on, or wasn't any 21 potential for violence. 22 And the government's only way to address that within 23 the context of what has been admitted into evidence in this 24 case is essentially what I just said, not to talk about an 25 intelligence investigation, what the investigation was called, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11319 4CUMSAT2 1 or what was specifically said or not said to Mr. Fitzgerald, 2 but rather to say, the FBI had been investigating, Mr. 3 Fitzgerald didn't know that, so he thought about doing a 4 criminal investigation. Then he learned of the FBI's 5 investigation. He didn't do a criminal investigation. The 6 FBI's investigation continued. All of that is supported by 7 what was admitted into evidence at this trial, and that is the 8 only way that the government can rebut, address an issue that 9 has already been raised by the defense. 10 MR. TIGAR: Your Honor, we would request that you give 11 the instruction that you mentioned a few moments ago that you 12 thought might be appropriate. I must disagree with counsel. 13 It is true that when this issue came up beginning at page 2350 14 of the transcript, Mr. Morvillo asked leave to explore what was 15 said to Mr. Fitzgerald at the meeting. And your Honor said, 16 2350, line 4: Relevance, question mark. Then we excused the 17 jury so we could have more argument. And the Court at the end 18 of the day said: No, it is not relevant. 19 On the weight of that, Mr. Morvillo said: Well, the 20 fact that this case arose from an intelligence investigation is 21 going to come into evidence at some point one way or the other. 22 And then he described the ways in which that could happen, that 23 it could come into evidence. He then argued specifically that 24 Mr. Paul in opening had opened the door and, therefore, this 25 could come into evidence. Your Honor, even after that inquiry, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11320 4CUMSAT2 1 at the close of that day, sustained the objection. Mr. 2 Fitzgerald stood down, that's enough, no more. That's where 3 the record stood. 4 Now, if it is argued that the reasons why Mr. 5 Fitzgerald stood down, which the Court said could not come into 6 evidence, have suddenly become relevant, then, of course, there 7 would have to be evidence in the record as to the reasons Mr. 8 Fitzgerald stood down, which, after the Court excluded it, 9 because you sustained the objection, the government, despite 10 Mr. Morvillo's promise that Mr. Moore would be forthcoming, 11 never arose. Closing argument is not the place, we 12 respectfully suggest, to revisit these matters; the government 13 having elected, after the Court's ruling, to do nothing. And, 14 therefore, in addition to that, that's why I argued, I hope I 15 did -- not very coherently -- in addition to the relevance 16 point, the fact that what counsel was doing is going beyond the 17 record that under the Court's supervision the parties have 18 developed in the presence of the jury. 19 THE COURT: Mr. Paul. 20 MR. PAUL: Yes, your Honor. 21 I believe your Honor had ruled initially when the 22 government tried to go into this area, and tried to utilize my 23 opening as a way to go through what they claim was a door being 24 opened. Your Honor ruled that was not the case. 25 THE COURT: One question is whether Mr. Sattar would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11321 4CUMSAT2 1 intend to argue in summation that the fact that the government 2 let all of this go on is an indication that it is all not very 3 serious. 4 MR. PAUL: Absolutely not, your Honor. I think the 5 evidence is what I would be arguing. I will not be making any 6 argument to the jury in my summation that seven years went by 7 and the government listening and never put a stop to this. And 8 obviously that inference to be raised as a result, they didn't 9 believe anything serious was happening. That is not going to 10 be an argument in my summation. 11 THE COURT: Or after Mr. Fitzgerald became aware of 12 the investigation that nothing was then done, that the 13 investigation continued for a period of time. 14 MR. PAUL: Your Honor, I don't believe I even 15 mentioned the name Fitzgerald in my summation, nor do I mention 16 anything about the prosecutors or their branch of this 17 investigation as this is nothing happening. That will not be 18 referred to in my summation. 19 THE COURT: I will give the additional instruction to 20 the jury. Because it is for the government to make the 21 determinations with respect to the conduct of an investigation 22 and the balancing of investigative priorities. I stopped that 23 in the evidence because of the irrelevance to why Mr. 24 Fitzgerald decided to stand down. It was sufficient that he 25 stood down. He had a meeting and he stood down. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11322 4CUMSAT2 1 At this point then it is irrelevant why he stood down, 2 and so I'll give the additional instruction. 3 MS. BAKER: Your Honor, a couple of points. First, 4 the argument that was had back at the time of Mr. Fitzgerald's 5 testimony about whether a door had been opened through 6 Mr. Sattar's opening, as the government understands that 7 argument and recalls the various points in the transcript where 8 it occurred, there was specifically the issue of whether 9 Mr. Sattar had opened the door to testimony that it was an 10 intelligence investigation because, in fact, in Mr. Sattar's 11 opening, the phrase intelligence investigation was used. 12 So the somewhat broader issue that is presented here 13 now was not what was being addressed back at the time during 14 Mr. Fitzgerald's testimony about whether or not a door had been 15 opened. The government had argued that the door to 16 "intelligence investigation" had been opened, and that was the 17 argument that the Court rejected at that time. So I want the 18 record to be clear about that. 19 Second, I would ask the Court to inquire of counsel 20 for Stewart and Yousry whether they also do not intend to make 21 this sort of argument. 22 THE COURT: Yes. That's fair. 23 MS. BAKER: Finally, as to the instruction that the 24 Court has indicated that it will give to the jury, the 25 government would ask that the Court add to that instruction the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11323 4CUMSAT2 1 sentence that the Court stated about a minute ago at lines 4 2 through 6 of page 45 of the Live Note transcript of today which 3 sentence was: "It is for the government to make the 4 determinations with respect to the conduct of an investigation 5 and the balancing of investigative priorities. 6 Because that sentence essentially explains the 7 rationale for the Court's ruling and basis for sustaining the 8 objection that Mr. Fitzgerald's decision making is irrelevant. 9 If your Honor just gives the additional instruction 10 that your Honor has proposed to give, without adding that 11 additional sentence that we are requesting, it will come across 12 to the jury as an additional rebuke of Mr. Dember which, the 13 government submits, respectfully, is not warranted for all the 14 reasons that I've already argued. 15 MR. TIGAR: If your Honor please, we do not agree with 16 the government's characterization of the earlier argument. We 17 suggest that the additional language is not appropriate. There 18 is a lengthy -- not lengthy, but there is an appropriate-length 19 discussion in the Court's final charge of the ways in which 20 government investigative techniques are not the concern of the 21 jury. 22 THE COURT: I've taken that out at the moment, unless 23 the government asks for it. 24 MR. TIGAR: They didn't ask for it? I'm sorry. I 25 don't have it in front of me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11324 4CUMSAT2 1 THE COURT: Where law enforcement techniques were at 2 issue, there was an instruction. And I said that I would give 3 the instruction as it was drafted, except the government then 4 said: Well, we don't want to an instruction unless we think 5 there is something raised in summations that leads us to want 6 to give it. And so I said, all right, I'll take it out, so it 7 is not in the charge, unless I'm asked after summations to give 8 such an instruction with respect to law enforcement techniques. 9 MR. TIGAR: I stand corrected, your Honor. I have the 10 instructions in front of me. 11 In that case, your Honor, I make the same request. I 12 don't think it is appropriate to discuss this. We have not 13 even given our summations yet. We have not said that the 14 government has -- doesn't have those kinds of choices. The 15 purpose of my objection was to make an objection to two 16 specific remarks of government counsel. I have asked the Court 17 to instruct the jury in the language that the Court gave 18 earlier addressed to the narrow issue raised by the 19 government's conduct and not to the very broad issue about 20 investigative techniques. 21 THE COURT: There was a fair request from the 22 government. I've already posed it to Mr. Sattar's counsel, to 23 Ms. Stewart's counsel, and Mr. Yousry's counsel. 24 MR. TIGAR: I do not intend to make the argument that 25 the government suggests. That's not any part of our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11325 4CUMSAT2 1 consideration. And as the Court knows, I have been very, very 2 careful about policing the line. As I said at the opening of 3 this colloquy, I have made a deliberation decision not to go 4 there, and I am not going there. 5 MR. STERN: We likewise will not comment on the 6 government's perception of the importance or lack of importance 7 of this case. 8 THE COURT: Then it is sufficient for me to say that I 9 sustained objections. Why Mr. Fitzgerald stood down is 10 irrelevant to any matter that you have to decide. And if the 11 government thinks that I should put back in the longer 12 instruction on law enforcement techniques -- 13 MS. BAKER: Your Honor, respectfully, the government 14 doesn't believe that the proposed instruction on law 15 enforcement techniques adequately addresses that issue. I 16 don't have the instruction in front of me to remind the Court 17 of its exact language, but the fair understanding of that 18 instruction is more along the lines of, for example, in a 19 firearms possession case where the police don't fingerprint the 20 gun. And so it doesn't really address the issue of the timing 21 of the starting of an investigation or not starting an 22 investigation, which is really the issue here. 23 MR. TIGAR: Your Honor, I understood what the Court 24 said about Rule 30 and all the rest of it. If in my summations 25 I say something that invites the jury to sit in judgment in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11326 4CUMSAT2 1 way to call for a corrective instruction, I expect to have the 2 Court make such a thing. 3 THE COURT: It is sufficient for me to give the 4 instruction which I said, why Mr. Fitzgerald stood down is 5 irrelevant to any matter that you have to decide. Without 6 getting into the numerous reasons for that, if there is 7 anything said in the defense summations that makes me 8 reconsider that, I will reconsider it. 9 Let's take five minutes. 10 (Recess) 11 (Jury present) 12 THE COURT: Ladies and gentlemen, before we broke, I 13 sustained certain objections and struck some remarks. Why Mr. 14 Fitzgerald stood down is irrelevant to any matter that you have 15 to decide in this case. 16 Mr. Dember, you may proceed. 17 MR. DEMBER: Thank you, your Honor. 18 Ladies and gentlemen, after Mr. Fitzgerald stood down, 19 a decision was made not to start a criminal investigation. He 20 still took measures, made efforts to try to ensure that Stewart 21 abided by the SAMs and didn't in any other way, in any other 22 time again violate the promise that she had made when she 23 signed the attorney affirmations to abide by those SAMs. And 24 what he did was, as you know, drafted a new version of the 25 affirmation which was stronger. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11327 4CUMSAT2 Summation - Mr. Dember 1 Now, before that actually took place though, Stewart 2 told you during her testimony that in late July of 2000 she 3 received a call from Pat Fitzgerald. And in that call she told 4 you that Mr. Fitzgerald told her that she had violated the SAMs 5 by issuing the press releases. Of course, that's obvious. But 6 he told her that. He told her that she could no longer see 7 Abdel Rahman or speak to Abdel Rahman because of it. And she 8 claims that all she told Pat Fitzgerald at that time was that 9 she would have a lawyer get back to him. 10 How credible is that, that that's all she said to him? 11 She said to you at the same time, that conversation, which took 12 me about I don't know, 15, 20 seconds to tell you about, she 13 said it took five minutes, five minutes. I just gave you 14 essentially the rendition of her testimony she gave to you. 15 She said five minutes. Lynne Stewart thought she had every 16 right in the world to issue press releases, which included 17 statements by Abdel Rahman. She thought it was part of her 18 ethical duty. She thought it was part of her defending 19 vigorously, defending and representing Abdel Rahman. 20 And here Pat Fitzgerald calls her up and says, you're 21 being cut off. You can't talk to this man because you violated 22 the SAMs by issuing these press releases. And she says, I'll 23 have somebody call you back. Well, you know that's not 24 credible. You know that's not credible because you got to see 25 Lynne Stewart on the witness stand. And Lynne Stewart is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11328 4CUMSAT2 Summation - Mr. Dember 1 afraid to say anything to anyone. When she testified, 2 particularly when we cross-examined her, we would ask her 3 questions that normally or typically would require a one-word 4 answer, and then she would start talking on and on and on and 5 on. And eventually she might actually have answered the 6 question by the time she stopped talking. But more typically 7 she would tell you what she wanted to say, not what was 8 responsive to the question. That's Lynne Stewart. 9 You know that Lynne Stewart is not shy about talking 10 to anybody about anything. We introduced statements she made 11 or asked her about, statements she made to two New York Times 12 reporters, Mr. Fried and Mr. Packer, where she shared her views 13 about the use of violence and when it is appropriate. She 14 shared her views about innocent noncombatants who happened to 15 be killed because they are somewhere targets of people who are 16 involved in struggles and her view about how she -- that's just 17 too bad basically, or rather she was inured about the fact that 18 innocent people, noncombatants, got killed, and she doesn't 19 know what's wrong with that. 20 She goes on television, national television, after she 21 has been charged in the case and talks away. We will have a 22 long discussion about that conversation a little later in my 23 summation. She is not afraid to say anything to anybody about 24 her views, as unusual as they are. You don't think for a 25 second, if she believed she was entitled to issue press SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11329 4CUMSAT2 Summation - Mr. Dember 1 releases with Abdel Rahman's statements in them that she 2 wouldn't have said to Pat Fitzgerald on the phone, when he 3 says, you violated the SAMs by issuing these press releases, 4 you don't think she would have said to him, that's ridiculous, 5 of course, I'm allowed to do that if in fact she truly believed 6 it? She knew full well then she couldn't. She knew full well 7 it was a violation of the SAMs. She knew full well she had 8 violated the law by issuing those press releases. 9 That's why she didn't say to Pat Fitzgerald, oh, I'm 10 allowed to do that because at the end of July 2000 she knew 11 full well she couldn't do it. But she only tells you when she 12 comes to court she is now entitled to because she has to. The 13 bubble becomes important, it is fabricated because she can't 14 walk into court without it. It is the pretext she needs 15 because she is guilty of committing or involved in a conspiracy 16 to defraud the United States. She is guilty of lying in her 17 affirmation when she submitted it, of Counts 1 and 6. She has 18 to create the bubble to defend herself. 19 Well, what's interesting is that after that phone call 20 she tells you she retained a fellow named Stanley Cohen as her 21 lawyer to represent her. And when we questioned her about 22 that, we questioned her and asked, had she, she herself, at any 23 point in time said to Pat Fitzgerald or written to Pat 24 Fitzgerald and said no, Mr. Fitzgerald, I am entitled to issue 25 press releases. The answer was no. In fact, she never spoke SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11330 4CUMSAT2 Summation - Mr. Dember 1 to Pat Fitzgerald at any point in time about the SAMs, about 2 the attorney affirmations, or their contents, at any point in 3 time. And then we asked her, well, did you ever direct your 4 lawyer, Stanley Cohen, to tell Pat Fitzgerald that Lynne 5 Stewart was entitled to issue press releases, and once again we 6 get the answer no. 7 Now, you know that what happens after that phone call 8 is a letter, Government Exhibit No. 9. I keep referring to it 9 this morning and it is a letter from Pat Fitzgerald in which he 10 sends to Stewart and says: You have to sign a new affirmation. 11 If you don't, you can't see or communicate with Abdel Rahman. 12 And she retains Mr. Cohen to deal with this letter and this new 13 requirement. 14 Now, if in fact she believed back then that she was 15 entitled to issue press releases, what's the first thing she 16 wants her lawyer to say to Pat Fitzgerald? The first thing she 17 wants to say, she wants her lawyer to say to Pat Fitzgerald if 18 you were in her position would be: Gee, Pat, there is nothing 19 wrong with her issuing press releases. She is entitled to do 20 that. She shouldn't be cut off from her client because of it. 21 She is entitled to it. She shouldn't be required to sign a new 22 attorney affirmation, which she clearly didn't want to do and 23 resisted doing for months, because she is entitled to issue 24 these press releases. 25 But they don't say it. Stewart and Cohen never say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11331 4CUMSAT2 Summation - Mr. Dember 1 it. They never communicate it. Why? Because that's not what 2 she believed and thought at that time. She knew full well back 3 then that she couldn't issue press releases, but she can't walk 4 into court and tell you that because it makes her guilty of 5 Counts 1 and 6. So she creates her little bubble. 6 What do they do? By the way, in Government Exhibit 7 No. 9, it is clear, by the way, if you read the letter, the 8 letter from Fitzgerald, Mr. Fitzgerald to Stewart, that all he 9 is aware of, apparently, according to this letter, is that she 10 has issued the press releases. There is no indication in this 11 letter that at that point Pat Fitzgerald knows that she has 12 been passing messages in and out to Abdel Rahman from Taha. 13 All it says in the letter is, you've issued a press release. 14 In fact, the first sentence, let me read it to you. 15 It is: Dear Ms. Stewart. Several recent press 16 articles have been brought to my attention which appear to 17 indicate that in or about June of this year, you visited Omar 18 Abdel Rahman -- it was actually in May -- at the Federal 19 Medical Center at Rochester, Minnesota and thereafter released 20 a statement or statements of inmate Abdel Rahman in violation 21 of Special Administrative Measures imposed upon him. That's 22 the only reference in this letter to any SAMs violations is 23 that. She issued a press release. Not that she smuggled 24 messages. The whole focus of what happens after he calls her 25 and after he sends this letter is, you've issued a press SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11332 4CUMSAT2 Summation - Mr. Dember 1 release. That's the whole focus, nothing else. 2 And neither she nor her lawyer ever say to Pat 3 Fitzgerald or communicate to Pat Fitzgerald that in fact she 4 was entitled to. Isn't that their first argument? Of course, 5 it is. If she believed it. The first argument is, she should 6 continue to have access to Abdel Rahman by visits and telephone 7 because she has done nothing wrong. She should not be required 8 to sign a new affirmation which they didn't like and didn't 9 want to sign because she has done nothing wrong. But they 10 don't make that argument. They don't present that to the 11 government. Because she knew full well at the time she was 12 violating the SAMs. That's why they don't say that, because 13 she didn't have to create that fiction at that time. She only 14 had to create the fiction when she walked into this courtroom. 15 Well, let's talk about what happens when Mr. Cohen 16 starts representing her. Well, what he does is -- what he does 17 at some point in time is consult with his client and decide 18 they are going to write a letter to the U.S. Attorney's Office 19 about this affirmation. 20 Now, what's interesting about their protesting the 21 affirmation and the affirmation -- the original version of the 22 affirmation is attached to Government No. 9. That's the 23 letter. It has the proposed affirmation. That's the one she 24 didn't want to sign. The one she eventually signs in May of 25 2001 is Exhibit No. 12. She signed it back on I believe it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11333 4CUMSAT2 Summation - Mr. Dember 1 May 7, yes, May 7, 2001, and she faxed it to the U.S. 2 Attorney's Office. That's before the July 2001 visit. 3 But what's happening is, she sees him in May 2000. In 4 late July she says Fitzgerald called her and said, can't see 5 him anymore, can't have access. You violated the SAMs. In 6 August he sends a letter to her saying, if you want to have 7 access to him, you have to sign this new affirmation. She sees 8 the new affirmation. You'll remember about three weeks or so 9 after she gets it, she has that conversation with Mr. Yousry I 10 referred to earlier where she says I don't care what Ramsey 11 Clark has to say on these issues. And from May of 2000 to July 12 of 2001, she doesn't see or speak to Abdel Rahman, this very 13 important client of hers. 14 During that period of time, she refuses to sign, until 15 May of 2001, the new affirmation. She doesn't like the 16 language. What part of the language does she not like? Is it 17 the part of the affirmation that says she can't pass Abdel 18 Rahman's messages to the media? No. It is the last paragraph 19 of the affirmation. 20 Let's put up for you Government Exhibit 610 which is 21 obviously in evidence. This is a memo. As you see, it is 22 dated February 23, 2001. And you see -- let's zoom in a little 23 closer to that, can we, please. You see it is to SC. That's 24 Stanley Cohen, obviously. It is from LS, Lynne Stewart. And 25 it is regarding the Sheikh Abdel Rahman, of course, and it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11334 4CUMSAT2 Summation - Mr. Dember 1 says: Paragraph language that L.S., Lynne Stewart, will agree 2 to sign off on. 3 If you look at that paragraph and you compare it to 4 the last paragraph in the affirmation attached to Mr. 5 Fitzgerald's letter, or the paragraph that actually exists in 6 the affirmation she finally signs, you see that that paragraph 7 is a lengthy paragraph and it discusses what her knowledge is 8 about people committing terrorist acts in Abdel Rahman's name, 9 like the Luxor incident, and what she knows about it and Abu 10 Sayyaf, who took hostages and demanded his release. It 11 basically talks about, it is important to follow the SAMs 12 because people are committing acts of violence in Abdel 13 Rahman's name and, obviously, the restrictions in place need to 14 be followed, so it doesn't encourage that sort of conduct 15 basically. And she understands that. That's the substance of 16 that paragraph. That paragraph has nothing to do with issuing 17 press releases or communicating Abdel Rahman's messages to 18 third parties, including the media. 19 That memo pertains to paragraph No. 4 in the 20 affirmation, both the proposed one and the one she actually 21 signs. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11335 4cuesat3 Summation - Mr. Dember 1 MR. DEMBER: Now, why don't we put up Exhibit 609. 2 Why don't you just zoom in a little bit on that, Ms. Griffith. 3 That's a letter, clearly, from Stanley Cohen, 4 Ms. Stewart's lawyer. It's dated February 28, 2001, and it's 5 written to Mr. Kelley from the US Attorney's Office. His name 6 has been mentioned, he worked for Mr. Fitzgerald. He is an 7 attorney in the office. 8 And can we go down through the document a little bit. 9 And essentially what Mr. Cohen is doing, he's writing 10 to Mr. Kelley, who apparently is dealing with the Abdel Rahman 11 SAMs in the office on behalf of Mr. Fitzgerald, or assisting 12 Mr. Fitzgerald with it. And what Cohen does is put in letter 13 form the memo that Stewart had written to him. 14 And in that letter form he essentially writes a letter 15 to Kelley proposing this language for paragraph 4. And he 16 essentially takes the language that she proposed in her memo 17 and puts it in his letter and they send it off to Mr. Kelley. 18 Why don't we go down to the bottom of the letter. Can 19 we do that, Ms. Griffith. Again, it's about two pages to get 20 all that language in on the letter. And on the bottom you see 21 it's very truly yours, and signed by Stanley Cohen, who is 22 obviously Ms. Stewart's lawyer. 23 Now, what's interesting about these two exhibits is 24 Stewart and Cohen are unhappy with the new affirmation. And 25 they're complaining about this paragraph 4. But they're not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11336 4cuesat3 Summation - Mr. Dember 1 complaining about paragraph 3 that deals with the fact that 2 Abdel Rahman cannot pass his messages to third parties, 3 including the media. 4 Well, hold it. If she thinks she's entitled to do 5 that as his lawyer, and it's the whole reason why she doesn't 6 have access to him at this point in time, why they're requiring 7 her to sign an affirmation she doesn't want to sign, why isn't 8 she protesting that paragraph? Why isn't she saying, hold it, 9 you know, we don't like paragraph 4 but paragraph 3 is even 10 worse? Paragraph 3 is bad also. We don't like paragraph 3. 11 There's no limitation to how long lawyers -- how long 12 letters can be from lawyer to lawyer. There's no limitation on 13 that, nothing in the rules of ethics. You can write as long a 14 letter as you want. You can protest as much as you want about 15 another lawyer or another requirement, legal requirement. 16 Where is the protesting about that provision? Why isn't she 17 putting in -- why aren't they, Stewart and Cohen, putting in 18 their letter to the US Attorney's office, a protest to 19 paragraph 3 that deals with press releases? 20 Why? Because she knew full well. They knew full well 21 at the time the SAMs did not permit them, did not permit her to 22 issue press releases with Abdel Rahman's statements in them. 23 She knew there was no justification as a lawyer under the rules 24 of ethics or otherwise to do that. There was no need, of 25 course, in vigorously representing Abdel Rahman to be issuing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11337 4cuesat3 Summation - Mr. Dember 1 such press releases. And so she knew full well what she had 2 done was wrong. 3 If she believed back then in 2001 and in 2000 that she 4 truly was entitled to issue press releases like she told you 5 she was on the witness stand here, she would have protested in 6 this letter and indicated that she wants to also clarify in the 7 new affirmation she can't issue press releases with Abdel 8 Rahman's statements whenever and wherever she wants to. 9 But she doesn't. And the absence of the protesting -- 10 the only reason why she's now being cut off from Abdel Rahman 11 and required to sign a new affirmation, the language of which 12 she doesn't like in paragraph 4, is because, quite obviously, 13 she knew full well what she has done was wrong. She had 14 promised not to do it and yet did it and wasn't protesting it 15 because she knew she had no right, no ethical obligation, 16 nothing required as a lawyer to issue such statements in press 17 releases for him. If she truly did -- and because it was the 18 only reason why she was being cut off, why isn't she protesting 19 and suggesting different language which allows her to issue and 20 continue to issue press releases? 21 The bubble didn't exist in 2001. It didn't exist in 22 2000. It didn't exist in 1999. It didn't exist in 1998. And 23 as you'll see later in my remarks, it didn't even exist in 24 2002. It came into existence when she marched into this 25 courtroom before this trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11338 4cuesat3 Summation - Mr. Dember 1 We're going to turn to a new topic. We've finished, 2 as you'll be happy to hear, with the ceasefire. It's time to 3 turn to a different topic. 4 As I told you at the very beginning of my remarks, 5 there were two acts, two occurrences in this case committed by 6 these defendants that were significant. That's what the case 7 is all about. One is transferring messages, carrying messages 8 in to Abdel Rahman and from Abdel Rahman which resulted in his 9 declaration that the ceasefire should come to an end and 10 violence should be resumed. 11 And the second one is the fatwah, the fatwah to kill 12 Jews wherever they were, wherever they could be found. 13 Now, the fatwah itself is evidence, powerful evidence 14 of Sattar's guilt of both Counts 2 and 3 of this indictment, 15 his participation in a conspiracy to commit murder and his 16 solicitation of crimes of violence. 17 If you remember, the fatwah, or the most significant 18 parts of it, it itself is clearly itself, standing alone, a 19 solicitation to violence, if there ever was one. And what I'm 20 about to discuss pertains to just those two counts. And 21 Mr. Sattar is the only defendant charged in those two counts. 22 This evidence pertains to him. 23 Let's talk about the fatwah a bit. You know from the 24 evidence presented in the government's case, you even know it 25 from Sattar's testimony, he did it. He did it, there's no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11339 4cuesat3 Summation - Mr. Dember 1 dispute. There's no mystery about it. He and Taha created it 2 and disseminated it and spread it around the world. 3 But we're going to also talk -- while I said to you 4 the evidence of the fatwah, the evidence of the fatwah itself, 5 its creation, its dissemination, is evidence against Sattar, 6 before I conclude my remarks on this particular topic later 7 today you'll see that there's a fascinating, fascinating 8 conversation between the two defendants who aren't charged in 9 Counts 2 and 3 regarding the fatwah. We'll talk about that 10 quite a bit. 11 Well, as I said, the evidence that Sattar participated 12 in the creation and dissemination of the fatwah is beyond 13 dispute. It is clear. He clearly directed Taha to write it. 14 And we'll talk about the recording, where that took place. He 15 read the fatwah in a recording that has been played for you or 16 read to you and reviewed on cross-examination of Sattar. It 17 was read by Sattar to Al-Sirri, his media guy in London, before 18 it was disseminated. He discussed the dissemination of the 19 fatwah. 20 What Sattar told you about the fatwah -- the only 21 thing he could say, because the evidence that is before you 22 catches him red-handed talking to Taha, having him write it. 23 And then perhaps what is damaging when he reads the fatwah, he 24 got -- the version he got when Taha did the first draft, when 25 Sattar reads it to Al-Sirri, he's caught with the goods, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11340 4cuesat3 Summation - Mr. Dember 1 know. It's like a person who's caught with a stolen piece of 2 property in his hands. He's caught with it. 3 So the only thing he can tell you is, ooh, I really 4 didn't mean it. I really didn't want anybody to die. I didn't 5 mean it. I was just a little bit upset or upset. Well, that's 6 I guess the only thing he can tell you, because the words of 7 the fatwah are as ugly and as hateful as anyone could issue. 8 So the best he can do is say, oh, gee, I didn't really want 9 anybody to die and that wasn't my intention. 10 He told you he was upset when it was written, when he 11 had Taha write it because of what was going on in the Israeli 12 Palestinian conflict. Obviously there's a lot of conflict 13 there. It gets many people upset. It doesn't necessarily lead 14 people to issue fatwahs in convicted terrorists' names who are 15 still, despite their presence for the rest of their lives in 16 American prison, persons who still have tremendous influence in 17 the Middle East with terrorist groups like Abdel Rahman. Let's 18 talk about it. 19 Well, I think the first exhibit we offered, we 20 presented to you was Government Exhibit 1179X. It's an 21 October 3rd, 2000, conversation between Sattar and Taha. And 22 this is sort of like the beginning, the beginning of a process, 23 the beginning of the evidence against Sattar and about the 24 fatwah. It's the beginning of the actual process of getting it 25 written. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11341 4cuesat3 Summation - Mr. Dember 1 And actually, initially, Sattar got on the stand and 2 testified and told you people, oh, I had nothing to do with the 3 writing. I didn't write it. But of course you know better, of 4 course. He's very much the reason why the fatwah was written. 5 And if he didn't write every word, he's just as responsible for 6 it as Taha, who did much of the drafting. 7 And in that conversation on that day, he tells Taha to 8 write the fatwah calling for the killing of Jews everywhere. 9 And Taha asks Sattar if the fatwah should be in Abdel Rahman's 10 name. And Sattar says, yes, of course. Because it will be 11 most powerful and most influential and get people to act upon 12 it. He doesn't quite say this, but this is clearly what is 13 meant by it. If it's in Abdel Rahman's name. If Sattar issues 14 a fatwah in Sattar's name, it will be meaningless. Issued in 15 the name of Omar Abdel Rahman, a convicted terrorist, a person 16 who has advocated the killing of Jews for a period of time, a