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

This is the transcript of Day 33 of the trial. April 24, 2001. Transcript delayed due to outage of e-mail of Court Reporters Office.

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

                                                                    4604

       1   UNITED STATES DISTRICT COURT
           SOUTHERN DISTRICT OF NEW YORK
       2   ------------------------------x

       3   UNITED STATES OF AMERICA

       4              v.                           S(7)98CR1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           March 29, 2001
                                                   9:50 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4605

       1                            APPEARANCES

       2   MARY JO WHITE
                United States Attorney for the
       3        Southern District of New York
           BY:  PATRICK FITZGERALD
       4        KENNETH KARAS
                PAUL BUTLER
       5        Assistant United States Attorneys

       6
           SAM A. SCHMIDT
       7   JOSHUA L. DRATEL
           MARSHALL A. MINTZ
       8        Attorneys for defendant Wadih El Hage

       9   ANTHONY L. RICCO
           EDWARD D. WILFORD
      10   CARL J. HERMAN
                Attorneys for defendant Mohamed Sadeek Odeh
      11
           FREDRICK H. COHN
      12   DAVID P. BAUGH
           LAURA GASIOROWSKI
      13        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      14   DAVID STERN
           DAVID RUHNKE
      15        Attorneys for defendant Khalfan Khamis Mohamed

      16

      17            (In open court; jury not present)

      18            THE COURT:  We are missing Mr. Schmidt.  Mr. Baugh,

      19   welcome back.

      20            MR. BAUGH:  Thank, your Honor.

      21            THE COURT:  We have the argument on the government's

      22   motion to quash the Department of Defense subpoenas scheduled

      23   for tomorrow at 4:30.

      24            MR. BAUGH:  I thought it was today at 4:30.

      25            THE COURT:  No, it moved until tomorrow at 4:30.  But

                                                                    4606

       1   I particularly note in reading the affidavit --

       2            MR. COHN:  Your Honor, once again we're

       3   interpreterless but --

       4            MR. BAUGH:  No, there is one.

       5            MR. COHN:  They just started, okay, thank you.  I'm

       6   sorry.

       7            THE COURT:  In reading the affidavit of Stuart Aly,

       8   the acting deputy general counsel of the Department of

       9   Defense, about his offers to cooperate and his efforts to

      10   communicate with you, and unanswered telephone calls, and I'm

      11   aware of the fact that your routine has been disrupted by a

      12   medical problem, which I hope is now resolved, but I just want

      13   to make sure that before we hear the oral argument on that

      14   motion to quash, you will have returned his telephone call and

      15   will have made good faith efforts to consentually resolve the

      16   issue.

      17            MR. BAUGH:  If I might, your Honor, I don't know if

      18   it's, I don't know if it's his rank or more, and I mean no

      19   disrespect to the man, Mr. Aly, but as I read his letter his

      20   letter encouraged me to call him so that I could explain the

      21   relevance and my defense theory so he could determine the

      22   relevance prior to the time he presented it, and I thought

      23   that was the issue that you were going to resolve.

      24            THE COURT:  Let's not waste extraordinarily precious

      25   time on frivolous issues.

                                                                    4607

       1            MR. BAUGH:  I wasn't aware it was frivolous issues.

       2            THE COURT:  Let me just say, obviously, the ultimate

       3   decision with respect to whether or not the material has to be

       4   produced or whether the subpoena is to be quashed is a

       5   decision made not by the Department of the Army, but by this

       6   Court.  I'm fully aware of that.

       7            The response has said, for example, some of this

       8   material is readily available on the Internet, and that if

       9   they had a better concept of what it is that you need and

      10   want, and they had a discussion with you, the matter might be

      11   resolved.

      12            Sir, if you're not willing to take the time and make

      13   the effort to resolve this, then I assure you that the time

      14   devoted to the motion to quash will be very brief.

      15            MR. BAUGH:  Your Honor, if I might --

      16            THE COURT:  I really don't want to discuss this

      17   further.  I'm just saying to you that I think that the

      18   response made is one which says, if I may quote --

      19            MR. BAUGH:  I have read the letter, your Honor.

      20            THE COURT:  Well --

      21            MR. BAUGH:  And I object to the Court's assuming,

      22   one, this is frivolous.  Number two, that my discussing with

      23   the member of the --

      24            THE COURT:  Sir, whether you respond to that call or

      25   not is a decision that you will make.

                                                                    4608

       1            MR. BAUGH:  No, I --

       2            THE COURT:  The action I will take if you fail to

       3   make any effort to consentually resolve it is a matter which I

       4   will determine at the time.  End of discussion.

       5            MR. BAUGH:  Then I would like to object on the record

       6   to this Court referring to my client's constitutional rights

       7   as frivolous, and that's what you're doing, and, further, if

       8   by cutting me off so that you don't want to discuss this, this

       9   is fine, and I will as soon as we finish this witness, I'll

      10   leave, and within the confines of being able to discuss with

      11   the Department of Defense person I will, if that's what you're

      12   telling me I have to do in order to protect this man.  But,

      13   no, I do not think this is frivolous.  I think this is a

      14   significant issue.  And, further, if the United States is

      15   willing to agree that what I get off the Internet will be of

      16   the same validity as if I get it through the Department of

      17   Defense and they are not going to contest it, that's fine.

      18            THE COURT:  Have you attempted to ascertain that?  I

      19   have already indicated an awareness that the Federal Rules of

      20   Evidence don't apply.  Is your concern that if you get the

      21   material off the Internet rather than from the Department of

      22   Defense you'll be faced with and authenticity objection?

      23            MR. BAUGH:  No, your Honor.  I will explain this.

      24   It's not an authenticity problem.  It is if it comes from the

      25   Department of Defense it cannot be impeached by the

                                                                    4609

       1   government.  If it comes from the Internet the government

       2   might contest it.  I'm not just trying to get the information.

       3   I'm trying to get the most reliable information so that it

       4   will stand up under cross-examination.

       5            THE COURT:  Thank you.  Is there anything before we

       6   bring in the jury?

       7            MR. WILFORD:  Yes, your Honor, there is.  Yesterday

       8   during the questioning of Agent Yacone it came to light in the

       9   questioning of Mr. Fitzgerald I believe on redirect that two

      10   Americans were killed and 16 injured as a result of a mortar

      11   attack.  I'm moving to strike that testimony on behalf of

      12   Mr. Odeh on 403 grounds, your Honor.  It has no relevancy.

      13   The fact that Americans were killed or other Americans were

      14   killed is outside the scope of the indictment, and it really

      15   has no bearing, but it is highly prejudicial.

      16            MR. FITZGERALD:  Your Honor, two responses.  First,

      17   that was a response to cross-examination bringing out that

      18   there were other attacks including ambushes, by Mr. Wilford.

      19   Second, the cross was designed as I understood it to show that

      20   the Aideed clan had done those things that in fact there were

      21   ambushes and mortar attacks and mortars are weapons that al

      22   Qaeda has trained people in.

      23            The reason we got into the number of casualties was

      24   Mr. Schmidt objected to his competence and personal knowledge.

      25   I was simply completing the record that there were ambushes,

                                                                    4610

       1   land mine attacks and the attacks that he described when it

       2   became a hearsay objection or competence objection to describe

       3   what he saw.  The indictment did not limit the attacks of the

       4   American soldiers to RPGs.  It says that Al Quaeda trained

       5   people and trained others to attack Americans and, in fact I

       6   believe there was testimony from Kherchtou earlier that he

       7   learned that people tried to put an explosive device near the

       8   port.

       9            So there is nothing in the indictment that excludes

      10   land mines versus other attacks.  It was a fair response to

      11   the cross and the detail was a response to objection to

      12   competence.

      13            MR. WILFORD:  Your Honor, if I may, with respect to

      14   the fact that a mortar attack occurred is one thing, but to

      15   bring in the fact there were additional dead Americans and

      16   wounded Americans, I think is highly prejudicial in this

      17   particular case, and I think that if you do the balancing

      18   between the probative value of that particular evidence and

      19   the prejudicial impact, that you have to come down on the side

      20   of it being too prejudicial to remain in the record, and I ask

      21   the Court once again to strike that particular portion.

      22            I didn't ask the Court to strike the testimony about

      23   there being a mortar attack understanding Mr. Fitzgerald had

      24   to have some leeway to respond to cross and the Court allowed

      25   that.  However, the additional information dealing with the

                                                                    4611

       1   actual deaths and injuries I think go a little bit too far

       2   under 403.  I'm asking the Court to strike that particular

       3   portion of the testimony.

       4            MR. FITZGERALD:  Your Honor.

       5            THE COURT:  Denied.

       6            MR. FITZGERALD:  Your Honor, very dry testimony.  No

       7   pictures.  There was no -- really what was grievous wounds to

       8   that person.

       9            THE COURT:  I know.  And calling the jury's attention

      10   to it and directing that it be stricken would, I think,

      11   probably be counterproductive.  That, however, is not the

      12   basis of my ruling.

      13            MR. BAUGH:  Your Honor.

      14            MR. SCHMIDT:  As to that, your Honor, the one thing

      15   that was relevant and important was the date of the last

      16   casualties being in October.

      17            THE COURT:  That question was asked and answered.

      18            MR. SCHMIDT:  I don't want that stricken.

      19            THE COURT:  Excuse me?

      20            MR. SCHMIDT:  I just don't want that the date of the

      21   last casualties stricken.

      22            THE COURT:  No, I'm not striking any of it.

      23            MR. BAUGH:  When you get a moment this morning I'd

      24   like to speak to you in chambers with one representative from

      25   the government about a medical situation on scheduling,

                                                                    4612

       1   whenever it's convenient to you any time this morning.

       2            THE COURT:  Why don't we have the jury come in and

       3   why don't we step inside.  I want the reporter.

       4            (Pages 4613 through 4614 sealed)

       5            (Continued on next page)

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                                                                    4615

       1            (In open court; jury present)

       2            THE COURT:  Good morning, ladies and gentlemen.  You

       3   remember that when we adjourned yesterday we were in the midst

       4   of listening to some tapes as part of the defense presentation

       5   on behalf of the defendant El Hage.  We're going to interrupt

       6   that.  We will pick it up at a later point, but in order to

       7   accommodate various interests we are going to interrupt the

       8   case on behalf of the defendant El Hage, and proceed with the

       9   defense case on behalf of the defendant Odeh.

      10            There is no significance to the sequence in which

      11   these things are being done.  We're simply trying to make the

      12   presentation to you as efficient and expeditious as possible.

      13   Mr. Ricco.

      14            MR. RICCO:  Yes, your Honor.

      15            Ladies and gentlemen, we'll be calling some

      16   witnesses, and we have like about 25 hours of reading -- no

      17   it's a joke -- there is some reading, but most of it will be

      18   witnesses.

      19            Our first witness is Imam Siraj Wahhaj.

      20    SIRAJ WAHHAJ,

      21        called as a witness by the defendant,

      22        having been duly sworn, testified as follows:

      23   DIRECT EXAMINATION

      24   BY MR. RICCO:

      25   Q   Good morning, Imam.

                                                                    4616

       1   A   Good morning.

       2   Q   We need you to speak into the mic.

       3   A   Okay.

       4   Q   Thank you very much.  Imam, are you familiar with Masjid

       5   At-Taqwa in Brooklyn?

       6   A   Yes, I am.

       7   Q   Can you explain to the jury how you're familiar with

       8   Masjid At-Taqwa in Brooklyn?

       9   A   Yes.  I'm the Imam or the leader of that particular

      10   mosque.

      11   Q   And can you tell us a little bit about the neighborhood

      12   that that mosque is in?

      13   A   It's an inner city, it's Bedford-Stuyvesant.  A few years

      14   ago it was surrounded by 15 crack houses, but we were

      15   fortunate enough working with the authorities to get rid of

      16   those drug houses, so now it's a residential business area.

      17   Q   Now, Imam, can you tell us first off, what is an Imam?

      18   A   Imam, if our religion were Judaism I would be call a

      19   Rabbi, and if our religion was Christianity I would be called

      20   a Minister.  So the Imam is the head of the Muslim community,

      21   is the religious head I guess you would call it.

      22   Q   Okay.  Can you tell us a little bit about your educational

      23   background?

      24   A   Yes.  I graduated from the High School of music And Art,

      25   seems like a thousand years ago.  I went to New York

                                                                    4617

       1   University where I studied math education.  1978 I went to a

       2   training program at the University of Saudi Arabia in Mecca,

       3   studied Islamic studies.

       4   Q   And can you tell us about your employment background?

       5   A   Yes.  I've been the Imam of this particular Masjid since

       6   1980.  In the beginning of my stay as the Imam I was also

       7   working at a mental health clinic in Brownsville as a

       8   therapist, recreational therapist at the Brownsville Ocean and

       9   Mental Health Clinic.  Before that, I was the Imam of a Masjid

      10   Mohamed in Brooklyn, I think for about six years.

      11   Q   Your affiliation with Howard University?

      12   A   Yes, I taught a course of Islamic studies.  I don't

      13   remember the exact year, but I think maybe around '81, '82, in

      14   that area.

      15   Q   Have you ever addressed the Congress of the United States?

      16   A   Yes.  In fact, I was the first Muslim to give an

      17   Invocation to the United States Congress and I believe that

      18   was like 1991.

      19   Q   Can you share with us the various places that you have

      20   lectured on the subject of Islam?

      21   A   Wow.

      22   Q   Just generally.

      23   A   I mean, you know, all throughout America, Canada,

      24   throughout the world.  I mean more specifics?

      25   Q   That's fine.  And have you previously testified as an

                                                                    4618

       1   expert witness in the New Jersey state courts concerning

       2   Islam?

       3   A   New Jersey State?  I don't remember Jersey.

       4   Q   That's okay.

       5   A   Right.

       6   Q   Let's move to something you might be familiar with.  You

       7   previously testified as both a character witness and an expert

       8   witness on religious terms in this very courthouse.

       9   A   I did in Jersey, you're right, I'm sorry.  I just

      10   remembered.  I did.  Yeah, I did about maybe ten, eleven years

      11   ago.  Yes, I did.

      12   Q   Okay.  And getting back to my question.  In fact, you

      13   previously testified as both a character witness and an expert

      14   witness on religious terms in this very courtroom.

      15   A   Yes.

      16   Q   In this courthouse approximately five years ago, is that

      17   correct?

      18   A   Yes.

      19            MR. RICCO:  Your Honor, at this point I would like to

      20   have Imam Wahhaj designated an expert witness on the subject

      21   of Islam.

      22            MR. BAUGH:  Objection, your Honor, same objection

      23   made previously by my co-counsel.

      24            MR. FITZGERALD:  No objection.

      25            THE COURT:  The application is granted.

                                                                    4619

       1            MR. RICCO:  Thank you very much, your Honor.

       2   Q   Now, Imam, I would like for you to take a few minutes to

       3   explain just some Islamic terms to the jury.

       4   A   Okay.

       5   Q   Can you start by explaining to the jury what the term

       6   Islam means?

       7   A   Yes.  Literally Islam comes from an Arabic word, Aslama,

       8   which means to submit, to submit to God, and also to be a

       9   person of peace.  Becoming peaceful by submitting to God,

      10   peaceful with our, you know, your fellow human beings, et

      11   cetera.  Literally Islam means total submission to do the will

      12   of God.

      13   Q   Okay.  And in the Islamic faith what is the importance of

      14   one, the Holy Koran; two, the principles of faith, and three,

      15   the hadid and Prophet Mohammed?

      16   A   Yes.  Muslims believe that God has sent revelations to

      17   mankind.  He sent the Torah to Prophet Moses.  He sent the

      18   Gospel to Jesus.  And sent the Koran, which we believe to be

      19   the last revelation to Prophet Mohammed, peace and blessing be

      20   upon him.

      21            As a Muslim, every Muslim must obey the Koran which

      22   we believe to be the words of God, and then also every Muslim

      23   is subjected to believe in God's last prophet, we believe

      24   Prophet Mohammed.  His teaching is collected on what is called

      25   hadit, the hadit are the sayings and the actions of Prophet

                                                                    4620

       1   Mohammed.  So Muslim has to obey God, Allah, and have to obey

       2   by his messenger Mohamed, peace and blessing be upon him, and

       3   must obey the Koran which, again, we believe to be the words

       4   of God.

       5            The faith in Islam, there are some requirements,

       6   basic faith that a Muslim must believe in.  Number one, they

       7   must believe in God and they must believe not just in Prophet

       8   Mohammed, but all of the prophets, Abraham, Noah, David,

       9   Solomon, all of the prophets they must believe.  And Muslims

      10   must believe in every revelation that was sent by God, so

      11   Muslims must believe in the Torah.  They must believe in the

      12   Gospel of Jesus.  They must believe in the Psalms of David.

      13   They must believe in every scripture that God sent to the

      14   prophets.  Muslims must believe in the hereafter, that there's

      15   a life after death.  Muslims must believe in the angels of

      16   God.  So these are things that are called the fundamental

      17   articles of faith.

      18   Q   Imam, the Koran itself, does the Koran deal with legal

      19   provisions known as Ahkam?

      20   A   Yes, absolutely, the Koran is filled with legal

      21   provisions.  What we can do, what we cannot do, yes.

      22   Q   How about legal obligations, badat?  You have to forgive

      23   my pronunciation.

      24   A   Yes.  Religious obligations prayer, fasting, things like

      25   that rememberance of God, call the thikra, or rememberance,

                                                                    4621

       1   rememberance of God, yes.

       2   Q   Does the Koran deal with what is legal and what is illegal

       3   halal, and haram?

       4   A   For instance, I'm drinking this water, this is

       5   permissible.  Alcohol is not permissible.  Drugs is not

       6   permissible.  So the Koran makes it very clear those things

       7   that are halal permissible and those things that are haram,

       8   not permissible.

       9   Q   Does the Koran deal with both criminal and civil law?

      10   A   Yes.

      11   Q   Does it deal with the hereafter?

      12   A   Absolutely.

      13   Q   Creation?

      14   A   Absolutely.

      15   Q   Revelation?

      16   A   Absolutely.

      17   Q   The relationship between Allah and man?

      18   A   Yes.

      19   Q   What about the relationship amongst human beings?

      20   A   All the time.  It teaches us what should be the

      21   relationship between a man and his wife, what should be the

      22   relationship between even other religions.  Muslims have a

      23   special relationship with what is called the (nonEnglish), the

      24   people of the books, Jews and Christians.  It teaches us a

      25   relationship between our neighbors whether believers or

                                                                    4622

       1   nonbelievers, so all throughout the Koran it teaches us

       2   relationships with other human beings and even in fact, the

       3   creation itself, our environment.

       4   Q   Imam, are you familiar with the term bayat?

       5   A   Yes, bayat.

       6   Q   Can you explain to the jury what the Islamic definition of

       7   the term bayat is?

       8   A   Yes.  In Islamic terminology the head of the Muslim uma or

       9   nation, 1400 years ago was Prophet Mohammed and the people

      10   took bayat to him.  That is, they actually literally shook his

      11   hand and gave a pledge of allegiance.  This pledge of

      12   allegiance is given to the really the head of Islamic state.

      13   After the death of the Prophet, we had what is called the

      14   kalifa or the head of the Muslim community, and this bayat

      15   also was given to the head of the Muslim community, and the

      16   first kalifa after Prophet Mohammed was a named Abu Bakkr so

      17   that tradition has continued.

      18   Q   Now, are you a leader in the Muslim community in Brooklyn?

      19   A   Yes.

      20   Q   Do the brothers and sisters who attend Masjid At-Taqwa, do

      21   they give bayat to Imam Siraj?

      22   A   No, no.  I'm just a little guy.  I'm not head of the

      23   Muslim state.  I'm just a very, very small guy.  And you know,

      24   part of taking bayat, let me tell you the significance of

      25   that, because the leader is responsible for the people, and

                                                                    4623

       1   when the people take bayat to the leader, and that leader

       2   protects them, if there is anyone in the community who needed

       3   money, who needed social services, that head would have to

       4   give them that.  So bayat is two way.  It's not people just

       5   taking allegiance to the leader but the leader providing the

       6   resources that that, those people need.

       7   Q   And then what is in turn the responsibility of the leader

       8   to the people who are giving bayat?

       9   A   That's my point, to actually take care of them.  For

      10   instance, you know, even in my case, even before I came here

      11   today I was in my office and a brother called me and said he

      12   needed to borrow a hundred dollars.  So I told him to meet me,

      13   you know, when I come back from court, to meet me in the

      14   Masjid and even though he's not in bayat to me, but I feel

      15   responsible as the leader to help take care of the

      16   congregation.  But when you take bayat, that is a very, you

      17   know, legal term, and the responsibility of that leader to

      18   absolutely take care of the congregation and to protect them.

      19   I shouldn't say congregation, but to the what we call uma

      20   which you call nation.

      21   Q   Okay.

      22   A   Now, similar to -- I'm sorry.

      23   Q   That's all right.

      24   A   You know, it's similar to in a sense you know a president.

      25   When you know we have in this country social services.  It's

                                                                    4624

       1   the responsibility of the leader when people cannot take care

       2   of themselves to take care of them.  That become the

       3   responsibility of that kalifa.  When the nation is attacked,

       4   the responsibility of the commander in chief to defend the

       5   nation so that kalifa also have the responsibility to defend

       6   that nation, so it's two ways.

       7   Q   Okay.  What is the importance, if any, of the religious

       8   authority and religious scholarship in Islamic life?

       9   A   It's very important.  You know, we have to guide our lives

      10   by knowledge and not by ignorance.  So you know I told you in

      11   my resum‚ that I went and I studied.  I studied Islam because

      12   I don't want to misguide people, and I want to make sure that

      13   when I talk that we guide the people from the Koran and from

      14   the tradition of Prophet Mohamed.  Likewise, its very critical

      15   that the leader of the Muslims be well educated so that we'll

      16   guide the people, not misguide them.  It's extremely

      17   important.

      18   Q   Is it a common practice in Islam for people to seek out

      19   religious authority or opinion?

      20   A   Yes.  You know, everyday we confront issues, and some of

      21   the issues today are new for us.  1400 years ago there was no

      22   question about you know organ transplants, for instance, so

      23   typically a Muslim might want to know, well, what is the

      24   position of Islam about, you know, heart transplants and liver

      25   transplants and things like that.  So it is always encouraged

                                                                    4625

       1   for those who don't know to seek knowledge from those who do

       2   know.

       3   Q   Are you familiar with the term fatwa?

       4   A   Yes.

       5   Q   What is a fatwa?

       6   A   Yes.  Fatwa is a legal opinion among the scholars about a

       7   difficult issue.  I'll give an example.  Nowhere in the Koran

       8   does it mention smoking marijuana, so the question is, is it

       9   permissible to smoke marijuana?  And in the Koran while it

      10   doesn't mention marijuana, the Prophet never mentioned

      11   marijuana, but Allah mentioned in the Koran what is called

      12   hamra.  Hamra means you could say it means wine, which you can

      13   also say it means intoxicant.  So our scholars have said

      14   according to the word of the Prophet anything that intoxicates

      15   is hamra, so, therefore, the fatwa is given that whether it's

      16   marijuana or cocaine or heroin, it's illegal.

      17   Q   Now, Imam Siraj, when a Muslim seeks a fatwa is that

      18   Muslim obligated to question his leader or must that Muslim

      19   follow the leader in blind faith?

      20   A   It is absolutely against the religion of the Islam to

      21   follow anyone blindly.  You see one of the important verses in

      22   the Koran, I'll just give and English translation.  Oh, you

      23   who you believe, obey Allah, obey the Messenger, and those

      24   charged with authority among you.  If you differ with anything

      25   refer back to Allah and the Messenger if it is you believe in

                                                                    4626

       1   Allah on the last day.

       2            Now what does that mean?  That means that when our

       3   religious leaders or anyone, even our parents give us, you

       4   know, a verdict that that verdict must be substantiated by the

       5   words of Allah, by the words of God as they appear in the

       6   Koran, and the words of his messenger Mohammed as they appear

       7   in the hadit.

       8            So, you know, blind following goes against Islam.  I

       9   give an example of something happened in history.  Prophet

      10   Mohammed sent a group of people and appointed a leader among

      11   them and he told them to obey the leader.  And at some point

      12   they were out and the leader became angry at them, and asked

      13   them, he said, did the Prophet say to obey me?  They say, yes.

      14   He said, build a fire.  So they built a fire.  And then he

      15   said, jump in the fire.  And so they like looking around like

      16   I'm not jumping in this fire.

      17            So and when the word came back to the Prophet, the

      18   Prophet said (nonEnglish).  Had they gone in that fire they

      19   never would have come out, for obedience is only in that which

      20   is right, which is just.  So definitely there can be no taklid

      21   in Arabic, it's called blind following, never.  The only one

      22   that we absolutely obey is Allah, and we absolutely obey his

      23   messenger Mohammed, peace and blessing be upon him.

      24   Q   Now, the Koran is made up of surus or chapters.  Are there

      25   particular surus in the Koran that encourage Muslims to

                                                                    4627

       1   question authority?

       2   A   Well, yes, yeah, all throughout the Koran.  I think one

       3   that I can remember chapter I think 459, if I'm not mistaken.

       4   Q   Chapter 4, verse 59?

       5   A   I think so.  Or it's 549.  I always get them confused.

       6   But it's in there again the verse that I just recited, obey

       7   Allah and obey the Messenger and conditionally everyone else,

       8   conditionally.  So there is verses in the Koran or verses like

       9   that.

      10   Q   Okay.  Now you just mentioned parents giving instructions

      11   and then following Allah.  Oftentimes we hear the term

      12   Islamically correct.  What does that mean?

      13   A   Yes.  Islamically correct means that it's correct

      14   according to the Koran, according to the Prophet Mohammed.

      15   That's what it means, Islamically correct.

      16   Q   Okay.  Imam, I want you to explain to the jury a term

      17   called jihad.

      18            Before that, your Honor, at this point I would like

      19   to put into evidence Odeh A4, Odeh B4, Odeh C4, and Odeh D4.

      20            MR. FITZGERALD:  No objection.

      21            MR. RICCO:  No objection from the government and

      22   these will be --

      23            THE COURT:  Received.

      24            MR. RICCO:  -- we'll explain later what they are.  I

      25   would like to read a part of --

                                                                    4628

       1            (Defendant's Exhibits Odeh A4, Odeh B4, Odeh C4, and

       2   Odeh D4 received in evidence)

       3            MR. BAUGH:  Excuse me, your Honor.  Are these items

       4   already in evidence?

       5            (Pause)

       6            MR. BAUGH:  Your Honor, we would have a continuing

       7   objection to the statements.

       8            THE COURT:  I don't understand what that's a

       9   continuing objection to.  If you want to write it out, fine,

      10   you can do that.

      11            MR. BAUGH:  Your Honor, could I have a continuing

      12   objection?  I can get it ruled on later or I will write it

      13   out.  Thank you.

      14            THE COURT:  Write it out.

      15            (Pause)

      16            MR. BAUGH:  Excuse me, Judge, before this is shown to

      17   the jury, we would likes to have copies.

      18            MR. RICCO:  Your Honor, we supplied it to the defense

      19   by the government about eight months ago, but if the Court

      20   prefers we can have some copies made, additional copies made

      21   for them.

      22            MR. BAUGH:  These are entered in Arabic.

      23            MR. RICCO:  Your Honor, I'll proceed.  Forget about

      24   showing it to the jury.

      25   Q   I'm going to read the following to you, Imam.  Please see

                                                                    4629

       1   if you can read along with me?

       2            THE COURT:  You are reading from what document?

       3            MR. RICCO:  That would be A4, your Honor.

       4            We'll start at the third paragraph.  We're not going

       5   to read the entire document.

       6            Brother, you know that it was wrong to perpetuate

       7   something which is wrong and it is right to perpetuate

       8   something which is right.  It is right, right in its entirety

       9   and the will of his dear one follow the righteous paths, the

      10   solfi path.

      11            Solfi is a Muslim who practices Muslim as propagated

      12   by the Prophet Mohammed and the first four Muslim kalifas who

      13   adhere to the strict interpretation of the faith.

      14            And the path of austerity in life and jealousies and

      15   humility to take over an arrogant and cursed infidel on the

      16   day of judgment.  Submit only to that which is right.  Do not

      17   disobey him ever.  Do not be the (unintelligible) and do not

      18   hesitate in seeking knowledge and have patience for it.  Stay

      19   strong on a platform and listen to who is laughing and

      20   challenging the legitimacy of every despot of pittance and

      21   every oppressive tyrant who desires to corrupt the people and

      22   the land.

      23            Please listen to this part:

      24            I'm aware that jihad is the true word that we believe

      25   in and which guarantees for those who seek and that we die

                                                                    4630

       1   for.  There is no more supreme truth than more truthful.

       2   There is no God but God and Mohammed is his Prophet.  I'm

       3   aware of its imperative and I strive to concede to it, to live

       4   well by it, and to die by it, God willing.

       5            Dear brother Abu Kali, all praise is due to God.  I

       6   live a good life and all that I seek is for God's acceptance,

       7   and the acceptance of my mother and your acceptance.

       8            And the letter goes on.

       9            I'm sorry.  I think that the government is

      10   stipulating, just so the jury is aware, first of all, this is

      11   a letter from Mohammed Odeh to a relative and he's describing

      12   a person named Abu Khalid.  I think the government is

      13   stipulating that Abu Khalid is a person that has nothing to do

      14   with this case.

      15            MR. FITZGERALD:  Yes, Judge, Abu Khalid has not been

      16   referred to any other testimony or documents yet.

      17            MR. RICCO:  Thank you very much.

      18   Q   Now, Imam, that letter is written from one Muslim to

      19   another talking about jihad.  Can you explain to the jury what

      20   that concept is and how is it interpreted in the Islamic

      21   world?

      22   A   First of all, it is very difficult for me to follow the

      23   letter out of context, so I have no idea, you know, there is

      24   no context for me.  But in terms of the word jihad, jihad, you

      25   know, it's a word that elicits all kinds of emotions.  I know

                                                                    4631

       1   I've been dealing with this in college universities all

       2   throughout the world.  But let me sort of linguistically

       3   first.  The word jihad, jihad only means to struggle.  Every

       4   Muslim knows that.  And I'll give an example.  Prophet

       5   Mohammed, and I'll just say the Arabic.  This is my training.

       6   Then I'll just translate it.  The Prophet says (nonEnglish).

       7   Whenever a judge make a judgment (nonEnglish) the word jihad

       8   is used and he struggles else to get the right answer, and he

       9   gets the right answer (nonEnglish).  He gets two rewards, a

      10   double reward.  (nonEnglish)  And when he struggles, and gets

      11   the wrong answer, this judge he will still get an award, a

      12   reward because of that jihad, because of that struggle.

      13            So of Muslim knows that when you say jihad or jihada,

      14   it means to struggle.  That's all it means.  You know it could

      15   mean a struggle, you know, I remember after 13 years Prophet

      16   Mohammed with his community was in Mecca, and they were run

      17   out of Mecca to Medina, and called this migration, called the

      18   hadra or migration.  They were oppressed so much finally Allah

      19   reveals, you know, you are now permitted to fight against

      20   those who fight against you.

      21            So a jihad can be a fight when people fight against

      22   you.  It can be that.  I don't want to mislead anyone.  It

      23   could be that.  But every Muslim knows that really a jihad is

      24   a struggle.  The first struggle, the first struggle is

      25   internal struggle.  It's a jihad within yourself.  For

                                                                    4632

       1   instance, Muslims have to pray five times a day.  The first

       2   prayer is called the dawn prayer.  That means we have to get

       3   up before the rise of the sun.  Any Muslim will tell you

       4   that's a jihad.  You know, that's a jihad.

       5            And you know during the month of Ramadan Muslims have

       6   to fast for thirty days, and, you know, and you know, years

       7   ago we used to have see Ramadan, just give me a second to say

       8   this fast, it's worth saying, (nonEnglish).  The month of

       9   Ramadam Muslims have a lunar calendar similar to Jews and

      10   Chinese, and that means the years, you know, the months move

      11   around throughout the years.  Sometimes the month of Ramadam

      12   is in the winter and sometimes it's in the summer.  So when

      13   Ramadam is in the summer, I'm talking about 12, 13, 14 hours

      14   of fasting, hot, you can't even drink water, right?  That's a

      15   jihad.

      16            So every Muslim will tell you, yeah, man, I did my

      17   jihad, man, you know, I fasted for the month of Ramadam.  I'll

      18   give you one more example.  I'm sorry.

      19   Q   That's okay.

      20   A   Pilgrimage to Mecca.  You get two million people and you

      21   know in that small place and you're trying to do your rites,

      22   your hajj rights, your pilgrimage rights, that's a jihad.

      23   Q   When you first took the witness stand I asked you about

      24   the community that your Masjid is in.  Have there been those

      25   who have described the transformation of that community as a

                                                                    4633

       1   jihad?

       2   A   Absolutely.  Yeah, we, I mean, I mean we would hear gun

       3   fire everyday.  Drugs sold all the time, you know.  Drug

       4   sales.  We decided to wage a jihad against the drugs in the

       5   area.  So we, so we did that.  And we were able to get rid of

       6   by Allah's permission most of the drugs in that area and it

       7   was a real jihad.

       8   Q   But you're also explaining to the jury that the term jihad

       9   can mean to wage war and to fight?

      10   A   Yes.  It can also mean that, yes.

      11   Q   Now, if a Muslim gives bayat, does the Muslim have the

      12   right to question the order or direction of the person to whom

      13   he is giving bayat?

      14   A   No, he doesn't have the right.  He has the duty.  It's

      15   more than a right.  He has to -- in fact, it's you know, you

      16   know, Prophet, we believe that Prophet have what's called the

      17   masum.  Masum is infallibility.  This infallibility because

      18   God is guiding them, so Jesus, Abraham, Moses, these great

      19   prophets were infallible, but not human beings.

      20            Every human being, you know, we make mistakes.  So

      21   and, therefore, yes, we should obey leadership.  We have to

      22   have leadership for sure.  You know every corporation have to

      23   have a president.  You have to obey leadership but not

      24   blindly.  And we have a duty, a responsibility to challenge

      25   leadership.  When that leadership gives us the directions that

                                                                    4634

       1   are not sound, that's not correct.

       2   Q   Imam, I just have a few more questions, and I want to ask

       3   you whether or not there is any Islamic authority that

       4   endorses the killing of individuals like, for example,

       5   Americans, anywhere they can be found?

       6   A   Absolutely incorrect.

       7            MR. BAUGH:  Objection.  Too late now.

       8            THE COURT:  Excuse me?

       9            MR. BAUGH:  I'm sorry.  I was trying to object but

      10   the answer got out.  I would ask, I would make an objection to

      11   that.  I would ask that the form of the question must be a

      12   personal opinion, and it was offered in any way except his

      13   personal opinion, move it be stricken.

      14            THE COURT:  The jury should understand that this

      15   witness is testifying as to his understanding of those terms

      16   and of these concepts, and it will be for others to tell you

      17   if it's the case, whether there are other scholars or other

      18   leaders who hold differing views or differing concepts or

      19   whether this is a monolithic group or whether there are

      20   segments who hold different views.  But the jury should

      21   understand, and the Imam is shaking his head, yes, that what

      22   he is expressing are his views and his understandings.

      23            THE WITNESS:  But I want to say this and this is not

      24   a matter of opinion.  I can tell you quite clearly.  No one,

      25   no Muslim --

                                                                    4635

       1            MR. BAUGH:  Objection, your Honor.  That is

       2   unresponsive to the question and there was no question.

       3   Q   Let me ask a question.  Let's start in the general scheme.

       4   Do you know of any religion that endorses the killing of

       5   innocent women and children?

       6   A   No.

       7   Q   Anywhere to your knowledge?

       8   A   I don't know, no.

       9            MR. BAUGH:  Objection.  Your Honor, again, he's not

      10   qualified to all religions.  He was offered on one religion as

      11   his personal opinion only.

      12   Q   In your study of Islam you told us that a Muslim has to

      13   know the Torah?

      14   A   Yes.

      15   Q   Is Torah Islamic law?

      16   A   I'm sorry?

      17   Q   You had said you have to know the Torah?

      18   A   We have to believe in the Torah.  It's a difference.

      19   Q   Okay.  And you have knowledge of the Torah?

      20   A   Yes.

      21   Q   And you have knowledge of the Bible?

      22   A   Yes.

      23   Q   And the prophets and the apostles as set forth in the

      24   Bible.  Based on your study as a religious scholar do you know

      25   of any religion that endorses the killing of innocent women

                                                                    4636

       1   and children?

       2   A   I don't know.  I don't know.  I don't.

       3   Q   Okay.  Now, let's focus in on Islam.

       4            Is there any authority in the Koran that you know of

       5   that endorses the killing of innocent women and children?

       6   A   No.

       7            MR. BAUGH:  Objection, your Honor, improper question.

       8   The question must be is there any authority in the Torah that

       9   he interprets, the Koran that he interprets.  The jury will

      10   understand that all of the answers to all of the questions are

      11   this witness' understanding and his beliefs.  And you recall

      12   my previous comment.

      13   Q   Imam, we have to wait.  It's okay.  Now, very interesting

      14   dynamic.

      15            Isn't what's going on here is supposed to happen in

      16   Islam?  In other words, a person says this is Islamically

      17   correct and an individual like Mr. Baugh has a right in Islam

      18   to say, I challenge that?

      19   A   Absolutely.

      20   Q   Okay.

      21   A   Not a problem.

      22   Q   All right.  And you're saying that it's his duty to say, I

      23   challenge that?

      24   A   Absolutely.

      25   Q   And the role of the scholar is to do what, to point to the

                                                                    4637

       1   Koran?

       2   A   Give his evidence.

       3   Q   Okay.  Now, what I'd like to ask you, Imam, is what is the

       4   evidence that supports your position that Islam does not

       5   endorse the killing of innocent women and children?

       6   A   You see, you know, again, we have to always go back to

       7   what God said or what his messenger said an I give an example.

       8   Even in the time, you know, there is one verse that says

       9   (nonEnglish).  Fight in the way of God those who fight against

      10   you, but even then don't go beyond the boundaries for God.

      11   Love not those who go beyond the boundaries.

      12            Now the Prophet Mohammed, peace and blessing be upon

      13   him, taught us this.  He said, even in war if you are

      14   fighting, you cannot harm women, you can't harm children, you

      15   can't harm the elderly and you can't even destroy the land.

      16   So boundaries are given to us in Islam. (nonEnglish).  Then

      17   these are the boundaries of Allah.  Don't go beyond them.

      18   Even in war we can't go beyond the boundaries, much less in

      19   peace.

      20   Q   Okay.  Now you mentioned the term "land."  Is it

      21   Islamically improper to destroy crops and force people to

      22   starve?

      23   A   Yes.  Incorrect, yes.  Improper.

      24   Q   And when a Muslim is confronted with that situation, that

      25   is a fellow Muslim is being victimized by that situation, what

                                                                    4638

       1   is the response of another Muslim?

       2   A   Not just the fellow Muslim.  Muslims have to fight against

       3   oppression and injustice wherever it is, not just against

       4   other Muslims.  So our job, according to the Koran, is

       5   enjoying the good and forbid the evil.  So wherever we find

       6   that kind of evil existing in the society, Muslims have an

       7   obligation to try to stop it.

       8   Q   If a Muslim person or even a Muslim soldier is given an

       9   order that goes against these Islamic principles, that is

      10   killing of women and children, what is his duty or obligation?

      11   A   He's not supposed to obey it.  I know it puts himself in

      12   tremendous risk, but reality is he's not supposed to obey it.

      13   We have to challenge our leaders, and, you know, and stop

      14   them.  I give an example exact what the Prophet said.  He said

      15   (nonEnglish).  That means, help your brother if he is

      16   oppressed and if he is an oppressor.  So one of the companions

      17   said, wait a minute, I know how to help him if he's oppressed,

      18   but how do we help him if he's the oppressor himself?

      19            The Prophet said, stop him from his oppression.

      20   That's the way you help him.  So if our leader tells us to do

      21   something that's wrong, we have to stop them and say, no, we

      22   can't do that.

      23   Q   Is that verse that you just shared with us, that bukkra

      24   reea, volume 9?

      25   A   The bukkarti exactly, very good, bukari, volume 9 exactly,

                                                                    4639

       1   right.

       2   Q   Okay.  Imam, I have two questions.  Actually, I have three

       3   questions.  I'm sorry, your Honor.

       4            Is the concept of suicide known in Islam?

       5   A   Is it known?

       6   Q   Yes.  Is it addressed?

       7   A   Yes, it's addressed, yes.

       8   Q   Does Islam endorse suicide?

       9   A   Absolutely not.  In fact, I'll tell you what the Prophet

      10   said.  It's very scary.  That if a person commits suicide in

      11   the hereafter that person will be in the hell fire committing

      12   that suicide over and over again.

      13            For instance, if a person, you know, jumped off of a

      14   tall building, his punishment in the hell fire is he will

      15   relive that over and over again, he will go to a tall building

      16   and jump off, and go back on the top an jump off again.  So

      17   suicide is frowned upon completely in Islam because it

      18   represents an act of lack of faith, because, you know, suicide

      19   is a, you know, a permanent, you know, a permanent move with

      20   something that's, you know, temporary, temporary condition.

      21            So when a person commits suicide, that's a lack of

      22   faith.  So that's why it's really considered a major sin in

      23   Islam.

      24   Q   Okay.  Imam Siraj, have you been paid or have you received

      25   any fee for appearing and testifying here this morning?

                                                                    4640

       1   A   Not at all, no.

       2   Q   Would you accept such a fee?

       3   A   No.  I might take it and give it as a gift to someone

       4   though.

       5   Q   It's good to know.

       6            Imam, as you look around the well this morning if you

       7   can look around the well --

       8   A   Yes.

       9   Q   -- other than maybe a few of the attorneys, do you know

      10   any of the men who are present in this courtroom?

      11   A   I don't think so, no.

      12   Q   And my point is, Imam, do you know anything about the

      13   facts of this case?

      14   A   No, I really don't know.

      15            MR. RICCO:  We thank you very much.

      16            THE WITNESS:  Thank you.

      17            THE COURT:  Anything from defense counsel?

      18            MR. BAUGH:  Mr. Al-'Owhali's counsel, your Honor.

      19            THE COURT:  Mr. Baugh on behalf of the defendant

      20   Al-'Owhali.

      21   CROSS-EXAMINATION

      22            (Pause)

      23   BY MR. BAUGH:

      24   Q   Now you know who the real power in the courtroom is.

      25            MR. RICCO:  Your Honor, I move to strike that, unless

                                                                    4641

       1   it's a legitimate question.

       2            MR. BAUGH:  I'm sorry.  Withdrawn.  No objection.

       3   Q   What is the correct -- should I refer you to as Imam?

       4            THE COURT:  I must have missed something.

       5            (Laughter)

       6            MR. BAUGH:  I said, now you know who the real power

       7   in the courtroom is because the court reporter could cut us

       8   off.

       9            THE COURT:  I want the record to be clear, because

      10   anybody reading this record and not knowing what happened

      11   would understand that the comment was because the court

      12   reporter had indicated that he had to replace his tape or make

      13   some other adjustments, and that there was a facetious remark

      14   directed to --

      15            MR. BAUGH:  The court reporter.

      16            THE COURT:  -- the court reporter's ability to stop

      17   the proceeding.

      18            MR. BAUGH:  Yes, your Honor.

      19            THE COURT:  I think absent that explanation this

      20   would not have been understood.  You may proceed.

      21   Q   Should I refer to you, sir --

      22   A   Imam is fine.

      23   Q   Now, regarding, there are some major differences between

      24   Islam and some other religions, am I correct?

      25   A   Yes, Uh-huh, sure.

                                                                    4642

       1   Q   For instance, Rabbis are ordained, am I correct?

       2   A   Yes.

       3   Q   And by, ordained, that means that they have been chosen as

       4   an interpreter, for wont of a better term, of the word of God?

       5   A   Uh-huh.

       6   Q   All right.  And priests and ministers, many of them, not

       7   all of them, are also ordained.

       8            You have to say yes or no or the court reporter --

       9   A   Some of them are, yes.

      10   Q   And by ordained that means they are officially permitted

      11   to speak and interpret the word of God?

      12   A   Some of them, yes.

      13   Q   Right.  Those who are ordained?

      14   A   Those who are ordained, yes.

      15   Q   Now, in Islam, am I correct, that Imams are not ordained?

      16   A   Absolutely.

      17   Q   In fact, one of the principles of Islam, and believe me I

      18   am very disarmed here, but in Islam the primary responsibility

      19   for adherence to the dictates of Islam is an individual

      20   responsibility?

      21   A   Yes and no, partly.

      22   Q   Well, like for instance --

      23   A   Partly.

      24   Q   -- one of the five pillars to make hajj, H-A-J-J, to visit

      25   Mecca once during your lifetime.  Am I correct that a Muslim

                                                                    4643

       1   is duty bound to make hajj if he or she can?

       2   A   Exactly, yes.

       3   Q   A Muslim, one of the five pillars is to pray if one can?

       4   A   Yes.

       5   Q   And also as part of prayer there is a, there is a

       6   preparation process for prayer?

       7            You have to say yes or no.

       8   A   I'm sorry.  Yes, yes.

       9   Q   And part of that preparation includes washing?

      10   A   Yes.

      11   Q   And that is called Wudu?  W-U-D-U?

      12   A   Yes, it's ablutions, but wudu in Arabic language.

      13   Q   And the obligation to make wudu prior to prayer is only if

      14   one can?

      15   A   To do it a certain way with water if one can.

      16   Q   And if one can't, you do it with dirt with soil, yes?

      17   A   With soil, yes.

      18   Q   So in Islam you have people who are scholars?

      19   A   Yes.

      20   Q   People who have studied the word, right?

      21   A   Yes.

      22   Q   In fact, there are even some people who have -- do we have

      23   a copy of the Koran over there on the table?  Would someone

      24   hold it up, please.  Just hold it up.  Thank you.

      25            Is there a person called a kursep -- am I pronouncing

                                                                    4644

       1   that correctly?  What do you call a person who has memorized

       2   the?

       3   A   Hafiz.  Hafiz.  Hafiz.

       4   Q   That is someone who is actually memorized every word --

       5   A   Yes.

       6   Q   -- in the Koran?

       7   A   Yes.

       8   Q   And the Koran is viewed as the word of God?

       9   A   Yes, it is.

      10   Q   As handed down through Mohammed?

      11   A   Yes.

      12   Q   And he, because Mohammed could not write, am I correct?

      13   A   Right.

      14   Q   He then told it to someone and it was written on the back

      15   of pieces of bone and leaves and things?

      16   A   Yes.

      17   Q   It was written down?

      18   A   Yes.

      19   Q   Now, you understand, believe me I'm not trying to impress

      20   you with my knowledge, you understand that?

      21   A   Right.

      22   Q   I'm asking to, you can explain it to me so that you can

      23   explain it to this jury, all right, and if I make a mistake,

      24   feel free to jump in.

      25   A   I will.

                                                                    4645

       1   Q   Thank you.

       2            Now, that personal responsibility for carrying out

       3   the word of God means that if every other Muslim in the world

       4   disagrees with me and if every Imam disagrees with me, but as

       5   a Muslim I honestly and sincerely believe that I have a

       6   responsibility to my faith to commit an act, no one can tell

       7   me that I'm wrong?

       8   A   Yes, they can.

       9   Q   They can argue with me?

      10   A   No, they can tell you you're wrong.

      11   Q   They can say that God forbids this?

      12   A   Absolutely, yes, because if not, if not --

      13   Q   Go ahead.

      14   A   -- we would have a society of everybody doing what they

      15   want to do any time they want to do it.  What I'm saying, you

      16   are correct by saying an individual who says that I think I

      17   have the right to do that, but that must be, it must be

      18   encroached with knowledge and information and the right

      19   information.

      20   Q   Then I will clear up the question.  If I tell you, and you

      21   and I have debated this issue --

      22   A   Okay.

      23   Q   -- and I have read those sections that you've told me to

      24   read, and I have read the interpretations you've told me to

      25   believe --

                                                                    4646

       1   A   Yes.

       2   Q   -- and in good faith and with knowledge I disagree with

       3   you --

       4   A   Yes.

       5   Q   -- am I wrong?

       6   A   Yes.  Let me tell you why.  Let me introduce something

       7   else that is important in Islam.

       8   Q   Okay?

       9   A   After the Koran, and I didn't say this before, but I'm

      10   going to add something as what's calmed a source of knowledge

      11   in Islam.  Number one, it's the Koran.  Number two, it's the

      12   hadid or the sayings of Prophet Mohamed.  Number three is the

      13   thing called the idmat by the scholars, that is agreed upon by

      14   the scholars.  There are some things that everybody agrees

      15   upon.

      16            So if a person says, well I, I disagree, you know,

      17   sure you have a right to disagree, but you have to, like the

      18   scholars, you have to bring your evidence, right, so it can't

      19   be a matter of, well, how I feel, you know, because that's you

      20   know -- so there, I agree that there is some room for

      21   difference of opinion definitely.  But not to that extent.

      22   There is some basic things that you can't get outside.  You

      23   can't escape it.

      24   Q   Are your opinions consistent with the opinions of all

      25   Imams in the -- how many billions of Muslims are there in the

                                                                    4647

       1   world --

       2   A   One billion three hundred thousand.

       3            MR. RICCO:  Objection.

       4   A   One billion three hundred million.

       5            MR. RICCO:  I would like specificity as to his

       6   opinion about what --

       7   Q   I was going to clear that up.  There was a comma.  Are

       8   your opinions on the interpretation of every aspect of the

       9   Koran in concordance, in accordance with the opinion of every

      10   other Imam?

      11   A   I have never, I have never read any religion where

      12   everybody agrees on interpretation of everything.  Likewise in

      13   Islam I'm saying, yes, likewise in Islam there is a divergence

      14   of opinions on different topics, but there are some things

      15   that there is no difference of opinion on.

      16   Q   And now I'm going to play lawyer.  When you say, there are

      17   some things that people who in good faith disagree on, that

      18   means that your opinion is not consistent with all Imams all

      19   the time on all issues?

      20   A   Of course, no, of course not, yes.

      21   Q   Thank you.

      22   A   Yes.

      23   Q   So the answer to that question is no, you are not in

      24   accordance all the time?

      25   A   Maybe ask the question again because I don't understand

                                                                    4648

       1   the question.

       2   Q   Let me give you an example.  It is inappropriate to kill

       3   innocent women and children?

       4   A   Absolutely.

       5   Q   Absolutely.  And it is inappropriate Islamically incorrect

       6   to destroy crops?

       7   A   Yes, of course.

       8   Q   In jihad?

       9   A   I'm sorry?

      10   Q   During jihad?

      11   A   Yes.

      12   Q   And further --

      13   A   During.

      14   Q   You can only struggle with your enemy until that person

      15   stops struggling back?

      16   A   Yes.

      17   Q   And then you must stop?

      18   A   Yes.

      19   Q   Hypothetically, if I might, and I'm asking for your

      20   opinion based on your interpretation of the religion -- strike

      21   that.  First, jihad, and forgive my pronunciation.

      22   A   It's very good in fact.

      23   Q   Thank you.  And I should point out that the Arabic

      24   alphabet has more letters than the English alphabet?

      25   A   26 in English.

                                                                    4649

       1   Q   What is it 29?

       2   A   28, something 29.  Depends.

       3   Q   They disagree on the number of letters?

       4   A   Well hamsa is counted as a letter.  Sometimes it's not.

       5   Q   So there are some sounds in Arabic words that are not

       6   available to English?

       7   A   You're right.

       8   Q   Now, jihad, am I correct, is also a duty of Muslims?

       9   A   Yes.

      10   Q   If a Muslim believes in faith and knowledge that others

      11   are being oppressed and that they are being thwarted in their

      12   ability to practice their religion and if he honestly and with

      13   knowledge believes that, that Muslim has a duty to resist the

      14   oppressor?

      15   A   No.

      16   Q   Okay.  Tell me where I'm wrong.

      17   A   Let me say why, because again you're talking about a

      18   situation that would create anarchy.  Jihad is not left to the

      19   individual person.  Jihad is the responsibility of the head of

      20   the Muslim state to declare that jihad and not as individual

      21   people.

      22   Q   Who is the head of the Muslim state?

      23   A   I'm saying --

      24   Q   Who is the head of the Muslim state?

      25   A   Depends on which country you're talking about.

                                                                    4650

       1   Q   By country?

       2   A   Yes.  Obviously in the days of the Prophet Mohammed there

       3   was what you called Allah uma, one uma.  But we don't have

       4   that today.  You have Pakistan.  You have Bangladesh, you have

       5   Saudi, Arabia.  You have Syria.  You have Lebanon.  You have

       6   all these Muslim countries.  So obviously, obviously we don't

       7   have one head of the Muslim community, of the Muslim nation,

       8   but you do have heads of those individual countries.  So then

       9   it would be become --

      10   Q   So the head of the individual --

      11            MR. RICCO:  Your Honor, could Mr. Baugh allow the

      12   witness to answer the question before he --

      13            MR. BAUGH:  Forgive me.  I'm sorry.

      14   A   It's the same thing in the United States of America.  The

      15   President of the United States of America has the right to

      16   declare war.  The same thing with individual Muslim countries,

      17   the head of that Muslim country has the right to declare war.

      18   And I'm saying to you right, that no United States citizen

      19   have the right to say, I'm going to go declare war on anybody.

      20   That would be wrong.  It would be, it would be go against the

      21   law.

      22            And the same way in Islam, it would be wrong for

      23   individual person to say I say, I feel that this person is

      24   being, is persecuted, therefore, I am going to take the

      25   responsibility to do that.  That is wrong, that's incorrect.

                                                                    4651

       1   Q   So it's your interpretation that the head of the Muslim

       2   state has the right to determine when it is Islamically

       3   correct for Muslims to declare jihad?

       4   A   I'll say it this way.  It's the right of that head of the

       5   Islamic state, like any other state, to declare war to defend

       6   the nation.  Now, a head of Muslims state might make a mistake

       7   and they may do something that's incorrect, and I give you

       8   examples of that if I wanted to.

       9   Q   But I just want -- are you telling me that the head of the

      10   Muslim, of a Muslim state has the power to make the Islamic

      11   interpretation of whether jihad should be called?

      12   A   Unfortunately, unfortunately, yes.  I give an example.

      13   Saddam Hussein for instance, right?  I'm saying to you in this

      14   courtroom that I disagree, you know, with Saddam Hussein and

      15   his interpretations.  So I'm just being honest with you.

      16   Q   So Saddam Hussein, it is, you're telling this jury that

      17   Saddam Hussein because he is the head of a Muslim state has

      18   the Islamic --

      19   A   No.

      20   Q   -- ability --

      21   A   Oh.

      22   Q   -- to make an interpretation that jihad must be followed?

      23   A   Not an Islamic ability, right?  You have --

      24   Q   Okay.

      25   A   Not Islamic ability.  That's the wrong word, right.

                                                                    4652

       1   Q   What's the word?  If not ability, what's the word?

       2   A   He has the ability to do it because he's the head of that

       3   country.

       4   Q   Okay.  So now you know of course that there was no Saddam

       5   Hussein being the President of Iraq at the time of the

       6   Prophet.  There was no Iraq, was there?

       7   A   Right, it wasn't.

       8   Q   The fact that there is a country called Iraq that has

       9   lines on a map that says, this is Iraq, was determined by the

      10   British and the French?

      11   A   That's right.

      12   Q   In the famous Accord of 1960?

      13   A   You got it.

      14   Q   So there would be no difference between what is Iraq and

      15   what is Saudi Arabia but for the English and the British,

      16   right?

      17   A   Probably.

      18   Q   In fact, many Muslims do not recognize there is a

      19   difference between Iraqi Muslim and Saudi Muslims other than

      20   Suffi and all that?

      21   A   No, no, no, no.  No, every Muslim recognize that whether

      22   you come from Africa or China or whether you come from Europe

      23   if you're Muslim, you're just a Muslim brother, so there is no

      24   difference in that regard.

      25   Q   And religiously if the president of the Iraqi Muslim

                                                                    4653

       1   nation says that he interprets jihad as proper, if I'm an

       2   American Muslim I don't have to follow that if I don't want

       3   to, do I?

       4   A   Of course not.

       5            (Continued on next page)

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4654

       1   Q   But if I believe responsibly that in discharge of my faith

       2   that he is correct, then I have a duty to follow it.

       3   A   I go back to my original point.

       4   Q   Answer my question.  Is that correct or incorrect?

       5   A   Incorrect.  I go back to my original point.  Whether you

       6   are the king of Saudi Arabia or the president of Iraq, you

       7   have substantially everything that you do with the book of God

       8   and the messenger.  So my point is this.  It would be wrong

       9   just because of the personality of that leader who declares

      10   everything to simply follow them blindly.  That then becomes

      11   my point.

      12   Q   Sir, I am not saying follow blindly.

      13   A   OK.

      14   Q   If Saddam Hussein issues a fatwah and I, not following

      15   blindly but in discharge of my faith, say I agree with his

      16   interpretation, I agree that what he is saying is Islamically

      17   correct and I have studied the issue and I am in agreement

      18   with him, do I have a duty to abide by that interpretation?

      19   A   Probably.

      20   Q   For example, asking solely for your interpretation,

      21   knowing that it is wrong -- what is the word, harum?

      22   A   Haram.

      23   Q   -- it is haram to kill innocents, if the invading enemy

      24   straps innocent children to their tanks, must I allow the

      25   tanks to run over me?  Or can I resist them?

                                                                    4655

       1   A   That would be a very difficult situation, obviously.

       2   Q   What is the difficult answer?

       3   A   I am sorry?

       4   Q   What is the difficult answer?

       5            MR. RICCO:  Your Honor, I object to this type of

       6   examination.  He should ask the witness the question and let

       7   the witness answer the question.

       8            THE COURT:  The objection is that the witness is not

       9   being given a sufficient opportunity to respond?

      10            MR. RICCO:  Yes.

      11            THE COURT:  Yes, that objection is sustained.

      12   Q   What is the answer?

      13   A   It's a very difficult situation.  I am not even sure if I

      14   am prepared to make the answer.  But I do say this.  If I am a

      15   general in a battlefield and I have to make some crucial

      16   decisions and I might have to make a decision in order to save

      17   my country and my troops, I might have to make a decision, a

      18   very tragic decision because of the circumstances, of the

      19   particular circumstances.

      20   Q   Am I correct, following what I have learned from you

      21   today --

      22   A   I think, by the way, you know, this is not -- it wouldn't

      23   be a question like for Muslims.  It would be the same question

      24   for a Christian army or a Jewish army.  They would be

      25   confronted with the same issue.  So it's not an Islamic issue.

                                                                    4656

       1   But the point that I am trying to say, that Islam teaches us

       2   to avoid these things when you can.

       3   Q   When you can.

       4   A   Of course.

       5   Q   And when you cannot -- if you can't avoid it, you have not

       6   committed a sin, have you?

       7   A   If you can't avoid it, sure.

       8   Q   For example, if there is an airplane, hypothetically,

       9   coming at the City of New York, and on that airplane is a

      10   nuclear device, 2 terrorists and 250 innocent children.  It is

      11   going to crash in New York and kill every child in the New

      12   York school system.  Shooting that plane down will kill those

      13   250 innocents.  I know it's a hard question.  I struggle with

      14   it.  It gets closer and closer.  I decide that it is a

      15   decision I must make.  Have I violated the faith in killing

      16   those 250 innocents?

      17   A   That's like a movie I saw a couple years ago.  (Laughter)

      18   Really, Armageddon or something like that.

      19   Q   The question is this:  If I make that decision and I come

      20   to you and I say imam, will my soul burn in hell forever

      21   because of my decision, can you tell me definitively yes or

      22   no?  Can you tell me that?

      23   A   I can.

      24   Q   And the answer would be?

      25   A   No.

                                                                    4657

       1   Q   Another example.  You said before that Muslims view

       2   themselves as brothers regardless of their nationality.

       3   A   Yes.

       4   Q   Even if they don't even speak the same language.

       5   A   Yes, of course.

       6   Q   Although I understand that you really should learn how to

       7   speak Arabic to really appreciate the Koran.

       8   A   Yes.

       9   Q   As a Muslim, my duty is not only to my state but also to

      10   other Muslims.

      11   A   Yes.

      12   Q   If, hypothetically, I believe that millions of children

      13   are being killed by my enemy and the only way to stop the

      14   death of those children is to blow up my enemy's facilities --

      15   first, if the death of millions of children is current, Muslim

      16   children -- any children.  I should qualify that.  It extends

      17   beyond Muslims, oppression in all forms.

      18   A   Yes.

      19   Q   If that is happening and I interpret that I am personally

      20   responsible to try and stop it, I am required to try and stop

      21   it, aren't I?

      22   A   No.

      23   Q   I am not?

      24   A   No.

      25   Q   OK.

                                                                    4658

       1   A   Again, you are getting into people saying that I have a

       2   right to do it.  That's illegal, that's criminal, and United

       3   States law it is criminal and Islamic law.  I am telling you

       4   that each one of us, we don't have the right to then interpret

       5   and to go commit acts of violence.  Islam does not condone or

       6   accept that.

       7   Q   Sir, if there is a disagreement between law of America and

       8   that which you interpret as religiously required, what

       9   prevails?

      10   A   I will give you a perfect example.

      11   Q   The question I ask you, sir, which prevails?

      12   A   It depends on the circumstances.  I am saying right now

      13   there are laws in Islam that is not applied in the United

      14   States context because we are in a sovereign nation.

      15   Q   However, sir --

      16   A   I give you an example, like drinking alcohol is prohibited

      17   in Islamic law, right?  But it's not prohibited in this

      18   country.  We can't penalize a Muslim if a Muslim drink

      19   alcohol, even though it's against the Islamic law.  You can't

      20   have that person punished in this country.

      21   Q   If, however, it is forbidden by the Koran to drink

      22   alcohol, and it is --

      23   A   Yes.

      24   Q   If I live in America I can drink alcohol?

      25   A   Absolutely.

                                                                    4659

       1   Q   Because in the religious law -- you are talking about

       2   punishment under the law, right?

       3   A   Hm.

       4   Q   And you are not a lawyer.

       5   A   That's right.

       6   Q   I am asking you only for punishment from God.

       7   A   OK.

       8   Q   That's all I ask.

       9   A   Now I understand.

      10   Q   Forgive me.  If jihad is called and if I accept that

      11   responsibility, and even if I violate man's law, the civil

      12   law, have I committed a sin?

      13   A   Maybe.

      14   Q   By maybe, do you mean it is subject to interpretation by

      15   scholars?

      16   A   No.

      17   Q   What makes it a maybe?

      18   A   I'm saying, you say jihad was called by whom.

      19   Q   Jihad is called by anybody.  However, I listen to it --

      20   it's called by my imam.

      21   A   Can't do it.  Can't do it.

      22   Q   I have to listen to a head of state?

      23   A   Well, let me put it this way.  You know, Islam doesn't

      24   teach anarchy and people can't take it upon themselves when

      25   they don't like something, even though something seems to be

                                                                    4660

       1   unjust, to get up and do that kind of violence.  It just

       2   doesn't -- it's not Islamic.

       3   Q   Are you familiar with what is going on in Iraq now?

       4   A   In terms of what?

       5   Q   The death of the children?

       6   A   Yes, yes, OK.

       7   Q   Have you read that since the imposition of the sanctions

       8   over a million Iraqi children have died?

       9   A   Yes, I have.

      10   Q   And that these children are dying because of malnutrition?

      11   A   Yes.

      12   Q   Lack of medical supplies?

      13   A   Yes.

      14   Q   And bombing by the United States.

      15   A   Yes.

      16   Q   Further, that this malnutrition has implications other

      17   than death.

      18   A   Yes.

      19   Q   That malnutrition causes retardation?  You have to say yes

      20   or no.

      21   A   Yes.

      22   Q   And that it also causes health problems that can occur

      23   generations down the road.

      24   A   Yes.

      25   Q   Based upon your training and understanding, you know this

                                                                    4661

       1   is occurring.

       2   A   Yes.

       3   Q   Is that considered by you personally to be oppressive?

       4   A   Yes.

       5   Q   If the head of a Muslim state says this is wrong and

       6   Muslims everywhere should resist it, if they believe in that

       7   do they have a duty to resist it?

       8   A   Let me tell you what the prophet says, because everything

       9   goes back to what the prophet said.  (Non-English spoken)

      10   Whoever sees an evil should change it with his hand.  If he is

      11   unable to change it with his hand he should change it with his

      12   tongue.  If he is unable to change it with his tongue, he

      13   should change it with his heart.  (Non-English spoken)

      14            This is the teaching of Islam that is very pragmatic.

      15   There are things personally that I am doing to help the people

      16   in Iraq, that we have done, food supplies and things like

      17   that.  That is something we can do.  We have gotten food

      18   supplies, medical supplies in Iraq.  This is something that I

      19   can do.  I can't wage war.  I have spoken to the United States

      20   government.  We have had rallies and we have done the things

      21   that we can do according to our ability.  Islam, and I go back

      22   to my major point, doesn't teach anarchy.

      23   Q   Imam, isn't it illegal to ship goods into an embargoed

      24   nation?

      25   A   There is ways.  There are groups of people that have

                                                                    4662

       1   gotten goods and medical supplies into that country.

       2   Q   Sir, imam, is it against the law of the United States to

       3   ship embargoed goods into Iraq, if you know?

       4            MR. RICCO:  I am going to object because I think

       5   Mr. Baugh has brought out that the imam not is not a lawyer.

       6            THE COURT:  If he knows.  Is that an area of your

       7   expertise?

       8            THE WITNESS:  It is not, no.

       9            THE COURT:  The objection is sustained.

      10   Q   When you shipped these items to Iraq --

      11   A   I didn't ship them myself.  I know that they were shipped.

      12   Q   When you get with other people and find a way to get it

      13   into Iraq, do you have to work a circuitous route because it

      14   is illegal to send it directly?

      15   A   Truthfully I don't know, but probably so.

      16   Q   Have you ever tried to ship it directly?

      17   A   No.  I wouldn't even know how to begin to do it.  All I

      18   know is that there are people, both Muslims and nonMuslims,

      19   good Christians and others who have taken medical supplies,

      20   badly needed medical supplies.  I don't think that was against

      21   the law, personally.  Maybe I am wrong but I didn't know that

      22   was against the law.  One thing I can also say --

      23            THE COURT:  Now we have three people talking at the

      24   same time.  You know who you listen to, right?  Let's try one

      25   at a time.

                                                                    4663

       1   A   I can say this to you, sir, you take great men like Martin

       2   Luther King Jr. who fought against unjust laws and did it in a

       3   just kind of way.  So you take a man like Martin Luther King,

       4   so if you want to say he broke the law and he was put in jail,

       5   I guess you can say that.  But I think people would agree that

       6   that kind of nonviolent struggle against unjust laws, I think

       7   you would call him a hero.

       8   Q   Agreed.  Sir, what does embargo mean to you?

       9            MR. RICCO:  Same objection, Judge.

      10            THE COURT:  Sustained.

      11   Q   I am not asking for a legal definition, but when I use the

      12   word embargo -- have you heard that word before?

      13   A   Yes.

      14            MR. RICCO:  Judge, I am going to object.

      15            THE COURT:  Sustained.

      16            MR. BAUGH:  I would ask for the basis of the

      17   objection.

      18            MR. RICCO:  Your Honor, he is called as a witness on

      19   Islam, not for US foreign policy.

      20            THE COURT:  Ask the question --

      21   Q   In your lay interpretation, you said you have heard the

      22   word embargo.

      23   A   Yes.

      24   Q   What does embargo mean to you?

      25   A   I think it means when a country stops supplies from going

                                                                    4664

       1   to another country.  That's an embargo.

       2   Q   Do you know that the United States has embargoed Iraq?

       3   A   I do believe they have embargoed certain items, not

       4   medical goods, as far as I know.  There is not an embargo on

       5   that, as far as I know.

       6   Q   If it was shown to you that there is a law,

       7   hypothetically, that says you cannot, Americans cannot send

       8   medical supplies to Iraq, which law would control?

       9            MR. RICCO:  Objection.

      10            THE COURT:  Sustained.

      11   Q   If a Muslim has a difference with his emir, his chief, and

      12   his difference is based upon his training, his education, his

      13   good faith, his personal religious interpretation, who is a

      14   Muslim bound to follow?

      15   A   See, you said based on his training.

      16   Q   No, I said based on his training, his interpretation, his

      17   debating with imams --

      18   A   See, doesn't matter as long as he has his evidence.

      19   Q   If he has his evidence, and when you say his evidence,

      20   evidence can be --

      21   A   That can be substantiated from the Koran or from the

      22   prophet.

      23   Q   If a Muslim has evidence to support his position that his

      24   emir is wrong, for instance, an Iraqi says I think Saddam

      25   Hussein is wrong, does that Muslim have a duty?  Yes or no.

                                                                    4665

       1   A   Sure.

       2   Q   What is that duty if he thinks his emir is wrong?

       3   A   Probably to confront him.  As I mentioned, the prophet

       4   said to stop the oppression and that way you help.  But, you

       5   see, again, you have to go pragmatic.  You have to do it

       6   according to your own ability, so you try to do it in such a

       7   way that you can try to convince the leader that what he is

       8   doing is incorrect.

       9   Q   What if you attempt to convince and the wrong continues?

      10   Do you have a duty to just stop talking to him or do you have

      11   a duty to continue to try and stop it with another tactic?

      12   A   You try every way you can to stop it, yes.

      13   Q   If you have spoken with him, if you have prayed on the

      14   issue, if you have asked for religious guidance, you

      15   protested, you wrote letters, you took out on ad, and nothing

      16   changes, do you have a duty to continue to try and stop the

      17   oppression?

      18   A   Yes.

      19   Q   If I die in jihad, what benefit do I get?

      20   A   If you die in a legitimate struggle, a jihad, we believe

      21   as Muslims that you go to paradise.

      22   Q   Directly?

      23   A   Yes.

      24   Q   Any other benefits?  What about the --

      25   A   Actually, you would alleviate whatever oppression there is

                                                                    4666

       1   on the earth, so it would be that benefit.

       2   Q   So if I die in jihad in order to stop oppression, that can

       3   stop oppression?

       4   A   That can stop oppression?

       5   Q   Is that what you said?

       6   A   I am saying, there is a possibility that the struggle that

       7   you are doing, that you may have stopped, you might have

       8   stopped the oppression.  That's a possibility, yes.

       9   Q   I go to heaven, I go to paradise if I die in jihad.  I

      10   stop the wrong against which I was fighting.  Any other

      11   benefits?  What about to my loved ones and family members if I

      12   die in jihad?

      13   A   I don't follow.  I am not sure what you are asking me.

      14   Q   I would ask you, is there a religious benefit if I give my

      15   son or daughter to jihad, to die in jihad?  Is there a benefit

      16   to me?  Does God give me a benefit?

      17   A   If you give your child to jihad?  I am not sure what that

      18   means.

      19   Q   If my child dies in jihad, does that inure to my benefit

      20   at all?  If it's not, it's not.

      21   A   I am not familiar with any teaching like that.

      22   Q   What about if I give my life in jihad, what about the pain

      23   of my death?  Is there a statement in the Koran that my death

      24   will feel like a pinch or pinprick?

      25   A   It is not in the Koran but the prophet said in hadith, if

                                                                    4667

       1   I die in jihad the pain is like the biting of an ant.

       2   Q   Anything other than that I pain will be eased and I go

       3   directly to paradise and I can stop the wrong that I am

       4   opposing?

       5   A   Nothing that I can think of right now.

       6   Q   When I go to paradise, will I see Allah?

       7   A   Yes, we are taught that everyone that goes to paradise

       8   will see Allah.

       9   Q   Who is ultimately in Islam responsible for gathering the

      10   information that can be construed as evidence?

      11   A   I think everyone is, but --

      12   Q   Every individual?

      13   A   Every individual, but the one who is accountable and

      14   responsible is the leader and I will tell you why, what the

      15   prophet said.  It's important.  He said every one of you is a

      16   shepherd and every one of you is accountable for your flock.

      17   The imam is a shepherd and he is responsible.  The emir or the

      18   head is responsible, accountable for those people under him.

      19   Then the father, he is responsible, the mother, she is

      20   responsible.  Everyone is responsible.  (NonEnglish spoken)

      21   Q   However, in Islam am I correct that the ultimate

      22   responsibility to question and make sure the action is correct

      23   is the responsibility of every individual?

      24   A   Yes.

      25   Q   So just because the head of a country or even your imam

                                                                    4668

       1   says that something is mandated, it is still my responsibility

       2   as a Muslim to determine whether or not that is correct.

       3   A   With the right evidence.

       4   Q   With the right evidence, sure.

       5   A   Yes.

       6   Q   And who is responsible for determining what is the right

       7   evidence?

       8   A   A few people.

       9   Q   Is the individual --

      10   A   Also responsible, yes.

      11   Q   All right.  In fact, not only is the individual

      12   responsible but if everyone says one thing, I can't accept

      13   anybody's word blindly, can I?

      14   A   Right.

      15   Q   I must question it regardless.  If a fatwah is issued by

      16   somebody and that person has scholarly support for that

      17   fatwah, right, that doesn't get me off the hook as far as

      18   gathering evidence on my own, does it?

      19   A   Right.  But you said if he has scholarly evidence, if he

      20   supports his position?

      21   Q   Right.  I still have a duty to look into the scholarliness

      22   of that evidence and determine who made it, on what they base

      23   the opinion --

      24   A   Yes, yes.

      25   Q   By the way, is there a process whereby you get the title

                                                                    4669

       1   imam?

       2   A   No.  I mean, you could graduate, go to Al Azhar University

       3   and become an imam there.  You can go around the corner and

       4   call yourself imam with two followers if you like.

       5   Q   So when someone says an imam has told me this is

       6   correct --

       7   A   It doesn't mean anything.

       8   Q   You have to ask who was it --

       9   A   More than who was it.  See, that would be personality.  It

      10   doesn't matter who said it, but what is the evidence used to

      11   support it.  That's the most important thing.

      12   Q   Do you have a person whose teachings you follow, other

      13   than the prophet?

      14   A   Who is teaching me?

      15   Q   Yes?

      16   A   Who has taught me or continues to teach me?

      17   Q   Yes.

      18   A   I have learned from many great scholars of Islam.  One of

      19   them I call him in Arabic Fiq, means Islamic law.  I would

      20   give him a nickname, big Fiq.  He was from Egypt, Sheik Hamad.

      21   He is one of the great scholars.  He is one of my teachers.

      22   There is another great scholar, named Sheik Dravad Abd Reis,

      23   great scholar from Sudan.  Another teacher -- I have learned

      24   from some great scholars.  They are my personal teachers.

      25   Q   Is there one person who speaks, one human that speaks for

                                                                    4670

       1   Islam?

       2   A   No.  Presently?  Presently, you mean?

       3   Q   Alive.

       4   A   Alive, no.

       5   Q   Is there one human being alive who speaks for all Arabs?

       6   A   All Arabs, no.

       7   Q   We should point out that all Arabs are not Muslims and all

       8   Muslims are not Arabs.

       9   A   Exactly, yes.

      10   Q   In fact, a significant percentage of the Islamic

      11   population is non-Arabic.

      12   A   Yes.  In fact the Arab population is a minority in the

      13   Muslim world.  Talking about a very small percentage of the

      14   Muslim population are actually Arabs.

      15   Q   There are many people who are classified as imam.

      16   A   Yes, sure.

      17   Q   And other than those who graduated from the university,

      18   whether or not someone is an imam, worthy of that person's

      19   respect and following, is determined by who?

      20   A   Ultimately determined by the people themselves.

      21   Q   The individual?

      22   A   Yes.

      23   Q   Does a person have to call himself an imam to be an imam?

      24   A   Does a person have to call themselves imam to be imam?

      25   Q   Yes.  Does a person have to call himself imam to be

                                                                    4671

       1   recognized as the person who holds the knowledge to help

       2   others to see the word?

       3   A   You see, anybody can call themselves imam.

       4   Q   That wasn't the question.  It was the exact opposite of

       5   that question.  If I find someone who I believe is scholarly

       6   and scholarly and has studied but he says don't call me imam,

       7   I just try to be a good Muslim, I can ask that person for

       8   assistance and understanding, can't I?

       9   A   Of course, yes.

      10   Q   Whether he calls himself sheik or whatever.

      11   A   Absolutely, you are right, yes.

      12            (Continued on next page)

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4672

       1            MR. BAUGH:  Excuse me, your Honor.  Can we take a

       2   10-minute break?

       3            THE COURT:  Yes, I was about to suggest that.  We

       4   will take our mid-morning recess.

       5            (Jury excused)

       6            THE COURT:  When an objection was made and I did not

       7   want it voiced in front of the jury, I suggested that it be

       8   made in writing, and the record should reflect that I have not

       9   received any written objections.  We will take a five-minute

      10   recess.

      11            (Recess)

      12            (Jury not present)

      13            THE COURT:  Mr. Baugh, do you have any idea how much

      14   longer you have?

      15            MR. BAUGH:  Fifteen minutes, max.

      16            THE COURT:  Let's bring in the jury.

      17            (Jury present)

      18            THE COURT:  Mr. Baugh, you may continue.

      19            MR. BAUGH:  Thank you.

      20            (Continued on next page)

      21

      22

      23

      24

      25

                                                                    4673

       1   BY MR. BAUGH:

       2   Q   Imam, are you familiar with a scholar, former scholar,

       3   Bukharah?

       4   A   B-U-K-H-A-R-A-H.

       5   Q   Are you?

       6   A   Yes, I am.

       7   Q   Did Bukharah --

       8   A   Maybe you mean a different Bukharah.

       9   Q   Let me make sure.  He gathered sayings about the prophet?

      10   A   Yes, he is the same one, yes.

      11   Q   Did the prophet say that there cannot be infidels on the

      12   land of the two shrines?

      13   A   On the land of?

      14   Q   The two shrines, the Arab Peninsula.

      15   A   Probably, yes.  Yes.

      16   Q   This was allegedly -- I mean no disrespect.  This was a

      17   statement allegedly made by the prophet just before his death.

      18   A   I think so.

      19   Q   Should that be interpreted as a ban, a religious ban on

      20   infidels living in what is now Saudi Arabia?

      21   A   Not Saudi Arabia but Mecca itself.  It is called the

      22   Hijjaz, Mecca, Medina, that area in there.  It is called Holy

      23   Land, yes.

      24   Q   Holy Land.

      25   A   Yes.

                                                                    4674

       1   Q   If an emir or a state head comes across and says I

       2   disagree with the prophet and I think it's OK to put troops of

       3   a foreign nation in that area, and even though the head of the

       4   state says that, to disagree or to resist that statement or

       5   that practice, is it Islamically correct or incorrect?

       6   A   You got a problem.

       7   Q   I do?

       8   A   You do.  Let me tell you the nature of the problem.  The

       9   way you are couching the question, no one, no Muslim ever

      10   resists the prophet, period.  No one, no Muslim would ever do

      11   it.  Other Muslims because of circumstances, right, might feel

      12   as a result of the circumstances, even though the prophet gave

      13   a prohibition there are some circumstances.

      14            I will give an example.  In Islam a man is not permit

      15   to wear silk.  Men cannot wear silk in Islam.  But Prophet

      16   Mohamed gave permission for a man named Babal to wear silk

      17   because of his condition.

      18            I will give another example.  Muslims are not

      19   permitted to eat pork, it is well known.  But if a Muslim is

      20   dying, starving, and the only food that is there is pork, he

      21   must eat the pork to stay alive.

      22            There are other examples like that.  In Saudi Arabia,

      23   though it is considered wrong to let nonMuslims go in the Holy

      24   Land, according to the scholars, some Muslim scholars, because

      25   of the circumstances they could allow some people to come

                                                                    4675

       1   there.  So they would not be considered resisting the prophet,

       2   but taking the unique circumstances and making a judgment

       3   based on those conditions.

       4   Q   You say that a Muslim is required to resist that which he

       5   knows to be wrong?

       6   A   Yes.

       7   Q   Up to his ability.

       8   A   Yes.

       9   Q   If all he can say is the word, he should resist that way.

      10   A   Yes.

      11   Q   If he can't even do that, he should think what is right.

      12   A   Exactly, yes.

      13   Q   If a Muslim is willing to die to correct that wrong, has

      14   he committed suicide?

      15   A   If he is willing to die?

      16   Q   If he is willing to die to correct the wrong --

      17   A   Perhaps, because you know why, because there are other

      18   statements that the prophet made.  For instance, you know, in

      19   some things that our leaders do, we may not like it, but

      20   again, we cannot destroy the nation because of something

      21   individually that we don't like, you see.  So therefore, again

      22   within our ability to change something, we should try to

      23   strive as much as we can, but not to commit suicide.

      24   Q   But not to commit suicide.  But every time a person dies

      25   in a struggle, that is not suicide, is it?

                                                                    4676

       1   A   No, of course not.

       2   Q   If as a good Muslim -- which I am not -- I believe that my

       3   emir or my political leader is a puppet of an infidel power,

       4   what is my obligation to that person, that human being who

       5   wears the mantle of president?

       6   A   Yes.  You know, you have to struggle within your system in

       7   a way that you know how, in the way that you can to stop it,

       8   the best way that you can.

       9   Q   The best way that you can?

      10   A   Yes.  In a legal --

      11   Q   I didn't ask you anything.

      12   A   In way that is religiously legal.

      13   Q   Versus civically legal.

      14   A   Legal.  I will say legal.

      15   Q   Do you personally believe as we sit here right now Arab

      16   children are dying because of the sanctions?

      17   A   Yes.

      18   Q   Do you believe in the statistic that has been given that

      19   every month approximately 4,500 children under the age of 5

      20   die as a direct result of the sanctions imposed on Iraq?

      21   A   Yes.

      22   Q   Religiously, do you view the deaths of those children as a

      23   wrong?

      24   A   As a what?

      25   Q   A wrong.

                                                                    4677

       1   A   Yes.

       2   Q   Are those children because of their innocence when they

       3   die, do they go to paradise?

       4   A   Yes.  Because they are children.

       5   Q   Because they're children.

       6   A   Because they're children, you know, they are innocent

       7   children, and there is the hadith of the prophet that said

       8   that children will go to paradise.

       9   Q   In Muslim life, is the purpose of life to live as much

      10   like Mohamed and Allah as you can?

      11   A   Not like Allah.  Allah is God.  We can't be like God.

      12   Q   To be as much like Mohamed as you can?

      13   A   Yes.  We are taught in the Koran that Mohamed is what is

      14   called (NonEnglish spoken).  It's, we call it an example, like

      15   a real model.  Mohamed is a model citizen.  So every Muslim

      16   tries their best to live like that model Mohamed.  By the way,

      17   that same word is given to prophet Abraham in the Koran.

      18   Abraham is also a model.

      19   Q   And other prophets as well.

      20   A   Yes.

      21   Q   And there are many prophets that Christians don't even

      22   recognize as prophets.

      23   A   Yes.

      24   Q   Based on your interpretation of the life of Mohamed, would

      25   he have given his life to correct a wrong?

                                                                    4678

       1   A   Given his life to correct the wrong?

       2   Q   Why.

       3   A   Definitely.  But this is the messenger of God, as Jesus

       4   was the messenger of God and Abraham and Moses were the

       5   messengers of God.  All the prophets of God, in fact, give

       6   their lives so that mankind can live.

       7   Q   When you say that you believe in the Bible --

       8   A   I believe in what Allah said in the Koran.  I believe in

       9   the Torah, which was revealed by God to Moses.  I believe mm

      10   in what we call the Injil in the Koran, or the gospel, that

      11   was revealed to Jesus, the songs of David revealed to the

      12   prophet David.

      13   Q   Do you believe that God destroyed Sodom and Gomorrah and

      14   killed everyone in those cities?

      15   A   I believe according to what we read in the Koran and what

      16   we read to the Bible that God punished everyone in Sodom and

      17   Gomorrah, yes.

      18            MR. BAUGH:  Thank you, your Honor.  No further

      19   questions.

      20            THE COURT:  Anything more from the defendants?

      21            MR. FITZGERALD:  Very briefly, Judge.

      22            THE COURT:  Mr. Fitzgerald on behalf of the United

      23   States.

      24   CROSS-EXAMINATION

      25   BY MR. FITZGERALD:

                                                                    4679

       1   Q   Good afternoon, imam.

       2   A   Good afternoon.

       3   Q   I will be very brief.  I realize the prophet Mohamed is no

       4   longer with us.  What is your understanding what the prophet

       5   Mohamed would say about whether it is proper to drive a truck

       6   into a building and blow up everyone inside?

       7            MR. BAUGH:  Objection, your Honor.  It goes to the

       8   ultimate issue.

       9            THE COURT:  I will sustain the objection but not on

      10   the grounds stated.  That is not the ultimate issue in this

      11   case.  The ultimate issue in this case is whether the

      12   government has proven the guilt of the defendants of the

      13   crimes beyond a reasonable doubt.  That is the ultimate issue

      14   in this case, not what Mohamed would have thought or any other

      15   entity other than this jury, based on the evidence in this

      16   case, of the charges contained in the indictment under the

      17   instructions that the court will give the jury as to the law.

      18   That is the ultimate issue in this case.

      19            Ask another question.

      20   Q   Imam, I am going to ask a different question, but if you

      21   could wait to answer to make sure that the judge and defense

      22   counsel rule it is proper.  Did the prophet Mohamed say

      23   anything or do anything in his lifetime to indicate that it

      24   was Islamically correct to bomb buildings?

      25            MR. BAUGH:  Again, your Honor, same objection.

                                                                    4680

       1            THE COURT:  Overruled.

       2   A   No, and I can give you an example contrary to that.  I

       3   remember when --

       4            MR. BAUGH:  Your Honor, asked and answered.

       5            THE COURT:  Yes.  You have answered the question.  If

       6   the government wants it will give us a followup question.

       7   Q   Can you give us an example of that?

       8   A   Yes.

       9            (Laughter)

      10   A   I remember once reading that the prophet, he said he

      11   doesn't believe, he doesn't believe, he doesn't believe, and

      12   they said who, who doesn't believe.  That Muslim whose

      13   neighbor doesn't feel safe from his harm doesn't believe.

      14            If you study the life of Prophet Mohamed, peace and

      15   blessings be upon him, you will see the most gentle man.  He

      16   would never allow innocent people to die, never.  Never.

      17   Anyone who knows him, knows of his life would know that he

      18   would never allow such a thing, never.

      19            MR. FITZGERALD:  Thank you.  Nothing further.

      20            MR. RICCO:  Your Honor, I have one or two questions.

      21            THE COURT:  Yes.

      22   REDIRECT EXAMINATION

      23   BY MR. RICCO:

      24   Q   Imam, we are almost done.  I wanted to go to some

      25   questions that Mr. Baugh raised so the jury has further

                                                                    4681

       1   context.  Mr. Baugh talked about Muslims taking responsibility

       2   for knowledge.  Is there a difference between a Muslim who has

       3   individual responsibility to learn versus individual

       4   responsibility to then go out and act?  Are those two

       5   different concepts?

       6   A   Yes, two separate concepts, yes.

       7   Q   So, for example, when Mr. Baugh asked you a question about

       8   individual responsibility to take hajj, when you take hajj and

       9   prayer, you shouldn't have a pack of cigarettes in one pocket

      10   and a wine bottle in the other.

      11   A   Right.

      12   Q   Is that correct?

      13   A   Yes.

      14   Q   The individual must go out and do those two things in a

      15   way that dignifies the religion and is consistent with the

      16   teachings of the prophet Mohamed.

      17            MR. BAUGH:  Objection, leading.

      18            THE COURT:  Overruled.

      19   Q   Is that correct?

      20   A   Yes, it is.

      21   Q   Mr. Baugh asked you a question, he asked you a

      22   hypothetical about a person issuing fatwah and what the

      23   individual person's responsibility -- OK.  Let's say, for

      24   example, hypothetically, a religious leader -- withdrawn -- a

      25   leader issued a fatwah.  Would it be the responsibility of a

                                                                    4682

       1   Muslim to travel to confer with that person about that fatwah

       2   if that Muslim believed that that fatwah was asking him to do

       3   something that was outside of the teachings of Islam and

       4   against them?

       5   A   Yes.

       6   Q   Would the Muslim have the responsibility or the duty to do

       7   that even if that fatwah was given in a country where that

       8   Muslim was not present?

       9   A   Yes.

      10   Q   Mr. Baugh also asked you some questions about changing

      11   oppressive conditions.  You are familiar with the fact that

      12   many Muslims went to Afghanistan.

      13   A   Yes.

      14   Q   Is that an example of changing conditions in that way?

      15   A   Yes.

      16   Q   I think you also talked to us about working within a legal

      17   system.

      18   A   Yes.

      19   Q   A Muslim has an obligation to think, is that correct?

      20   A   Yes.

      21   Q   Just like any other religion.

      22   A   Yes.

      23   Q   To act appropriately?

      24   A   Yes.

      25   Q   And not to agree to do something that is morally wrong?

                                                                    4683

       1   A   Yes.

       2   Q   In this nation we have something called conscientious

       3   objection?

       4   A   Yes.

       5   Q   Status, right?

       6   A   Yes.

       7   Q   In various religions people separate themselves from

       8   participating in acts that they believe are inappropriate.

       9   A   Yes.

      10   Q   Is that a concept that is singular to Islam?

      11   A   No.

      12   Q   Mr. Baugh asked you questions about who be an imam.  You

      13   have been the imam at Al-Taqwa for 20 years?

      14   A   Yes.

      15   Q   What different types of nationalities come to Al-Taqwa?

      16   A   African American, white European Americans, Hispanic

      17   Americans, Arabs, Egyptians, Pakistani, Bangladeshi, Chinese,

      18   Bosnians, Algerian, Sudanese, Malians, Nigerians, Malaysia.

      19   We have one Japanese.  And more.  Many.

      20   Q   Does this international make-up of people who attend

      21   Al-Taqwa, is that done each week?

      22   A   Yes.

      23   Q   We asked you a question about bayat, and you said that

      24   bayat was a pledge to follow a leader.

      25   A   Yes.

                                                                    4684

       1   Q   Then you talked to us about an individual's commitment to

       2   God.

       3   A   Yes.

       4   Q   What to a Muslim is a stronger and more important

       5   commitment?

       6   A   What is what, sir?

       7   Q   Stronger and more commitment?  Is it the bayat or the

       8   commitment to God?

       9   A   It is absolutely the commitment to God.  In fact, I will

      10   go a step further.  I don't really know the French terminology

      11   but it is something like raison d'etre, which means the very

      12   reason for existence is to worship God and to be obedient to

      13   God, and this is substantiated in the Koran.  (NonEnglish

      14   spoken) I have only created spirits and human beings to

      15   worship me.  This is God speaking.  Man's number one

      16   obligation is to worship his creator.

      17   Q   Last question.  Mr. Baugh asked you a series of questions

      18   about the individual.  There is a person's responsibility for

      19   themselves in Islam.

      20   A   Yes.

      21   Q   Parents have responsibility for their children in Islam.

      22   A   Yes.

      23   Q   Is that correct?

      24   A   Yes.

      25   Q   As a community, we have responsibility to each other's

                                                                    4685

       1   families; isn't that correct?

       2   A   Yes.

       3   Q   And as a nation, we have responsibility to our nation and

       4   the world.

       5   A   Yes.

       6   Q   In Islam, is there a hierarchy of responsibility?  Does

       7   that exist?

       8   A   Yes.

       9   Q   In other words, there are people who you talk about that

      10   imam or that leader that issues that fatwah.  He has to be

      11   careful what he says.

      12   A   Absolutely.

      13   Q   Because there be young people out there in the world would

      14   jeopardize themselves and injure other people if he is not

      15   acting responsibly.

      16   A   Yes.

      17   Q   And that's a reason why some people, when they issue

      18   fatwahs, not only need to be but should be challenged.

      19   A   Yes.

      20   Q   For example, Mr. Baugh asked you about scholarship at

      21   Al-Azhar University; is that correct?

      22   A   Yes.

      23   Q   Sometimes graduates of Al-Azhar University advocate bank

      24   robbery; is that correct?

      25   A   Yes.

                                                                    4686

       1   Q   Did so in your mosque?

       2   A   Yes, they did.

       3   Q   You didn't graduate from Al-Azhar University?

       4   A   No, I didn't.

       5   Q   And when that happened in your mosque you stopped it.

       6   A   I said that is incorrect.  I said with all due respect to

       7   his scholarship that is wrong, and I gave my evidence, and the

       8   scholar says what imam says is correct.

       9   Q   But that imam has a greater love of responsibility and

      10   commitment and should have a greater love of commitment

      11   because his words can be followed and can be misinterpreted;

      12   is that correct?

      13   A   Yes.

      14            MR. RICCO:  Thank you very much.

      15            THE COURT:  Anything further?

      16            MR. FITZGERALD:  Briefly, Judge.

      17   RECROSS-EXAMINATION

      18   BY MR. FITZGERALD:

      19   Q   Mr. Ricco asked you a question about how a Muslim properly

      20   guided can't go to prayer and have cigarettes in one pocket

      21   and alcohol in the other.

      22   A   Yes.

      23   Q   What if a properly guided Muslim is going to prayer.  He

      24   has nothing forbidden in his pockets, but he realizes a

      25   brother walking with him going to prayer has cigarettes, has

                                                                    4687

       1   alcohol.  What does he do?

       2   A   He will talk to him.  He will suggest brother, you

       3   shouldn't do that, you shouldn't go to prayer like that.

       4   Q   What if he is not sure if he has alcohol but he thinks he

       5   does?  What does he do?

       6   A   Let me tell you something the prophet said once, to answer

       7   your question.  He said that the great prophet Jesus was

       8   looking at a man and the man, he stole something.  And Jesus

       9   said did you steal?  The man said no, I swear to God, I didn't

      10   steal.  And the prophet Mohamed said that Jesus said

      11   (nonEnglish) I believe in God but I deny my own eyes.

      12            So, you know, we have to make excuses for one

      13   another.  I would rather make an excuse for my brother.  If I

      14   don't know, in our religion it is better to let a guilty

      15   person go than punish an innocent person.  So therefore I make

      16   the assumption that I am wrong and somewhere along the line --

      17   because it's wrong now to go and spy, and, you know, because

      18   it looks like he got a wine bottle, the shape is like that.

      19   So it's wrong now to go -- if he is not acting drunk, I

      20   wouldn't say anything to him.  I would let him come and pray.

      21   Q   But question is, do you ask him first?  Do you ask him if

      22   he has a wine bottle?

      23   A   If there is evidence, yes.  In other words, if I just saw

      24   a sign of it, wasn't sure, I wouldn't ask him.  I only ask him

      25   if I am sure he has a wine bottle.

                                                                    4688

       1   Q   Wouldn't you be concerned that the Muslim brother might

       2   drink the bottle, which he shouldn't be doing?

       3   A   Yes, but, see, there is a broader issue here, and I will

       4   give you a example.  Once the wife of the prophet, Yisha, she

       5   said, oh Mohamed, there are some people that just became

       6   Muslims and we don't know whether they slaughtered their meat

       7   correctly, because as Muslims and Jews we have to slaughter

       8   our meat in a certain way, so the blood have to come out.  We

       9   have to pronounce the name of God before they eat it.  We not

      10   sure if they pronounce the name of God.  Just say bismallah,

      11   say the name of God and eat it.  So I think the lesson is

      12   don't be -- because what happens is, you know, it's offensive

      13   to say to someone listen, you don't know what you doing, you

      14   know, so rather than do that -- I think the case is that if

      15   you were suspicious of your brother with a wine bottle, you

      16   don't want to accuse him.  So you want to be very careful

      17   about that.  But if you knew that he had, you would take him

      18   to the side and talk to him.

      19   Q   And you mentioned about how a leader in your mosque had

      20   talked about robbing banks?

      21   A   Yes.

      22   Q   You obviously confronted him and challenged him and said

      23   that's wrong.

      24   A   Yes.

      25   Q   Would it also be your duty if there were people going out

                                                                    4689

       1   to rob a bank, to stop those persons and say don't carry out

       2   that act?

       3   A   I must do that.  If I don't do that, I am derelict in my

       4   responsibility.  I have to do it.  I have to stop them.

       5            MR. FITZGERALD:  Nothing further.  Thank you.

       6            THE COURT:  Thank you.

       7            (Witness excused)

       8            THE COURT:  You may call your next witness.

       9            MR. RICCO:  Yes, your Honor, the defense calls John

      10   Anticev.

      11    JOHN ANTICEV, recalled by the defense.

      12            THE COURT:  The court reminds you, sir, you are still

      13   under oath.

      14   DIRECT EXAMINATION

      15   BY MR. RICCO:

      16   Q   Good morning, sir.

      17   A   Good morning.

      18   Q   Before you came today, you had an opportunity to go back

      19   through your notes?

      20   A   I reviewed them briefly last night.

      21   Q   OK.  First I wanted to start with Government's Exhibit 6,

      22   which is the statement that you took from Mohamed during the

      23   time period that he was in Kenya, Mohamed Odeh.

      24   A   Right.

      25   Q   OK?

                                                                    4690

       1   A   Yes.

       2   Q   Can we agree that that statement does not contain every

       3   word stated by Mohamed Odeh that appears in your notes, in

       4   your handwritten notes?

       5   A   Yes, that would be safe to say.

       6   Q   Can we also agree that your notes themselves are not a

       7   verbatim recording of everything that Mohamed Odeh said to

       8   you?

       9   A   Verbatim, no.

      10   Q   Previously you had testified about an individual by the

      11   name of Fahad, and either Mohamed Odeh's response or Mustafa's

      12   response to Fahad.

      13   A   Yes.

      14   Q   I think that you said to us that Odeh indicated that he

      15   didn't trust Fahad because Fahad knew nicknames and things of

      16   that nature.

      17   A   Yes.

      18   Q   That's what you told us.

      19   A   Yes.

      20   Q   Is it accurate to say that you made a mistake there?

      21   A   The way I testified to it, I believe that I said that

      22   Mohamed Odeh was giving his firsthand opinion about Fahad, and

      23   upon reviewing the notes that you talked about, it seemed that

      24   that information came from that Mustafa was telling him about

      25   Fahad, and he reported to me that Mustafa told him, but I

                                                                    4691

       1   think in my testimony I said that that was his ideas.

       2   Q   So just for the sake of clarity, when you previously

       3   testified that it was Mohamed Odeh who distrusted Fahad

       4   because of certain information, it would be more accurate to

       5   say that it was Mohamed Odeh was explaining to you that it was

       6   Mustafa who distrusted him because of that information.

       7   A   What I related was -- the way I remember it, it was that

       8   when we talked about Fahad, Mohamed stated that Mustafa stated

       9   the following things about him.  Now, I don't know if that

      10   translated to him feeling the same way.  I thought it did, but

      11   maybe it didn't.

      12   Q   We don't want you to testify about what you thought he

      13   might have felt.

      14   A   Exactly, right.

      15   Q   We want to have testimony about what was said.  Mohamed

      16   also indicated to you notwithstanding the Mustafa information,

      17   that he felt a little unwary of Fahad anyway; isn't that

      18   correct?

      19   A   That was the impression I got.

      20   Q   But it was the specific attribution that was given by

      21   Mustafa and not Mohamed.

      22   A   Yes.

      23   Q   I want to spend just a couple of minutes, not much, to

      24   clarify the contact between Mustafa and Mohamed Odeh in the

      25   spring, Mohamed Odeh and Fahad in the spring, and Mohamed Odeh

                                                                    4692

       1   and Saleh in the spring.  And just so that the jury gets a

       2   sense of the chronology before he left, Mohamed Odeh left

       3   Mombasa to travel to Nairobi, OK.

       4            Mohamed Odeh was visited by Mustafa, who came to him

       5   with a message from Saleh; isn't that correct?

       6   A   Yes.

       7   Q   And that message was that Usama Bin Laden wanted them to

       8   return to Afghanistan, especially Al Qaeda and Mujahideen.

       9   A   Yes.

      10   Q   And Mohamed asked him why are we leaving.  This is what he

      11   said to you, right?

      12   A   Yes.

      13   Q   And he was told that there was some emergency of some kind

      14   but he didn't specify exactly what the emergency was at that

      15   first meeting.

      16   A   Correct.

      17   Q   Mohamed assumed that this going back to Afghanistan would

      18   involve his wife and his family.  This is what he said to you.

      19   A   Yes.

      20   Q   Later on, Mohamed had another opportunity to meet with

      21   Mustafa, OK, and at that second meeting Mustafa gave more

      22   detail about this emergency; isn't that correct?

      23   A   Yes.

      24   Q   He indicated to Mohamed that Usama Bin Laden had declared

      25   war against the American people; isn't that correct?

                                                                    4693

       1   A   Yes.

       2   Q   And that he wanted all of the people to return back to

       3   Afghanistan.

       4   A   Yes.

       5   Q   And there was a discussion between Mustafa and Mohamed as

       6   to whether or not Al Qaeda was right in doing this.

       7   A   Yes.

       8   Q   And there was a discussion that there were even Al Qaeda

       9   members in Afghanistan questioning Bin Laden about this

      10   fatwah, correct?

      11   A   Yes.

      12   Q   During the conversation there was talk of whether or not

      13   they would be up to taking on such an enemy like the United

      14   States, correct?

      15   A   Correct.

      16   Q   And I think Mustafa might have stayed at Mohamed's house

      17   for one night and returned to Mombasa.

      18            MR. BAUGH:  Your Honor, I object on the basis of

      19   United States versus Lilly.  If it is coming in without

      20   cross-examination, I have to object and request an instruction

      21   that these statements are limited in scope.

      22            THE COURT:  I am not sure I understand the objection.

      23            MR. BAUGH:  We would ask for a cautionary instruction

      24   that the statements cannot be construed as against

      25   Mr. Al-'Owhali, because Mr. Al-'Owhali cannot cross-examine.

                                                                    4694

       1   They were not made in furtherance of the conspiracy.

       2            THE COURT:  Overruled.

       3   Q   Did Mohamed Odeh indicate to you that Mustafa stayed

       4   overnight one night and then he went back to Mombasa?

       5   A   I don't know.

       6            THE COURT:  Excuse me one moment.  Let me see counsel

       7   and the reporter in the robing room.

       8            (Continued on next page)

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4696

       1            (Page 4695 sealed)

       2            (In open court)

       3            THE COURT:  Two things.  Agent, would you please

       4   repeat your full name for the benefit of the jury.

       5            THE WITNESS:  John Anticev.

       6            THE COURT:  And do you remember when you previously

       7   testified, what day it was?

       8            MR. RICCO:  It was the 27th and the 28th of February.

       9            THE COURT:  The other thing is, I misunderstood the

      10   nature of the objection that was made by Mr. Baugh, and the

      11   objection was well taken.  I have previously told you, and I

      12   will repeat it again in a written instruction, that a

      13   statement by one alleged coconspirator may be considered with

      14   respect to another alleged conspirator if it is made during

      15   the course of a conspiracy and in furtherance of the

      16   conspiracy.  But once an alleged conspirator is arrested,

      17   statements made after the arrest may be considered only with

      18   respect to the speaker, because those are not statements made

      19   in furtherance of the conspiracy.  That individual's role in

      20   the conspiracy ends when he is arrested.  Therefore, the

      21   testimony which is now being elicited with respect to

      22   statements made by the defendant Odeh to the agent following

      23   his arrest may be considered only with respect to Odeh and may

      24   not be considered with respect to the other defendants.

      25            MR. RICCO:  Thank you, your Honor.  Your Honor, I

                                                                    4697

       1   would like to approach the witness with 3500 material for

       2   Agent Anticev.

       3   BY MR. RICCO:

       4   Q   Agent, having looked at this document, does it help

       5   refresh your recollection as to whether or not Mohamed Odeh

       6   told you that Mustafa stayed that night and then went back to

       7   Mombasa?

       8   A   Yes, that is correct.

       9   Q   Last question with respect to Mustafa:  Did Mohamed Odeh

      10   indicate to you that it was on or about August 1 that he was

      11   in Mombasa and Mustafa gave him some money to travel with?

      12   A   Yes.

      13   Q   Mohamed asked why was he traveling that day.  There was

      14   question even that day about whether or not Mohamed would

      15   still have to travel; isn't that correct?

      16   A   Yes, I believe so.

      17   Q   Even though he had met him in Mombasa, Mohamed Odeh still

      18   was reluctant at that point to travel.

      19   A   Yes.

      20   Q   Now I would like to move to Ahmad.  You testified

      21   previously about Ahmad the Egyptian and the contact that Ahmad

      22   the Egyptian had with Mohamed Odeh during the spring of 1998.

      23   A   Yes.

      24   Q   Mohamed Odeh indicated to you that Ahmad came to visit him

      25   with two messages; isn't that correct?

                                                                    4698

       1   A   Yes.

       2   Q   That is, he came to Mohamed's house in Witu, right?

       3   A   Yes.

       4   Q   The first message was that there was a sheik named Hassan

       5   from Somalia that wanted to meet with Usama Bin Laden, right?

       6   A   Yes.

       7   Q   Ahmad communicated to Mohamed that one of them, that is,

       8   Mohamed, Ahmad or Mustafa, must accompany Sheik Hassan to

       9   Afghanistan.

      10   A   Yes.

      11   Q   That's what Mohamed told you.

      12   A   Yes.

      13   Q   You don't know whether or not that is true or not, but

      14   that's what he told you.

      15   A   Yes.

      16   Q   Then there was a second message.  The message was that

      17   there was a fatwah from Bin Laden, right?

      18   A   Yes.

      19   Q   You didn't know whether or not that was true either, but

      20   that's what he said to you, right?

      21   A   Yes.

      22   Q   He said that there was a new plan to fight and that Usama

      23   Bin Laden wanted a meeting with all the Islamic groups to

      24   unite to make a fatwah against the Americans.  This is the

      25   conversation between Ahmad and Mohamed in Witu, correct?

                                                                    4699

       1   A   Yes.

       2   Q   And Mohamed indicated to you that because of this fatwah,

       3   Mohamed was going to travel to Afghanistan to confer with

       4   Usama Bin Laden; isn't that right?

       5   A   Yes, that's what he said.

       6   Q   And when you were interviewing Mohamed, there was not an

       7   interpreter there, was there?

       8   A   No.

       9   Q   And when he said to you that he had to travel to

      10   Afghanistan to confer with Usama Bin Laden about that fatwah,

      11   did you say to him, Mohamed, what do you mean confer with

      12   Usama Bin Laden about that fatwah?

      13   A   No, I believe I did not expound on that.

      14   Q   I would like to move then to Fahad and perhaps Saleh,

      15   because I think some of their meetings were together.  First I

      16   would like to go to Saleh.  Saleh, sometime in March or

      17   February of 1998, Mohamed has a first meeting with Saleh.

      18   This is what he says to you.

      19   A   Yes.

      20   Q   He says that meeting was attended by Ahmad, Harun, and

      21   that this meeting was at Ahmad's house in Mombasa.

      22   A   Malindi.

      23   Q   Malindi, I am sorry.  Excuse me.  He indicated to you that

      24   Saleh was in control of that meeting.

      25   A   Oh, yes, he was in control of the whole cell.

                                                                    4700

       1   Q   He was the control person of the Muslims associated with

       2   Al Qaeda in that area of Kenya, right?

       3   A   Correct.

       4   Q   Mohamed told you that.

       5   A   According to him, that's what he said.

       6   Q   And you didn't know again whether or not that was true or

       7   not, you are just basing that on what he said, right?

       8   A   Yes.

       9   Q   The meeting was about traveling back to Afghanistan, this

      10   first meeting.  And what Mohamed related to you about the

      11   first meeting was that at the first meeting it wasn't

      12   presented as if it was an emergency -- this is the first

      13   meeting -- but that he should plan to return to Afghanistan.

      14   A   Yes.

      15   Q   And Mohamed indicated to you that his impression of the

      16   first meeting was that this travel had more to do with

      17   religious life styles and issues of that.  This is at the

      18   first meeting.

      19   A   Right.  I believe he told, what he told me how he

      20   responded to Saleh was, well, I'll go back to Afghanistan,

      21   it's an Islamic country, and that he would go back.

      22   Q   This is at the meeting where Saleh begins to talk to

      23   Mohamed about getting the travel documents together.

      24   A   Yes.

      25   Q   The second meeting is also a meeting that is more calm,

                                                                    4701

       1   but the message is still the same, prepare yourself for

       2   travel; isn't that right?

       3   A   Yes.

       4   Q   By August, Saleh's urgency about the travel has changed,

       5   isn't that correct, according to Mohamed Odeh?

       6   A   Yes.

       7   Q   He says that Saleh is now more excited, right?

       8   A   Yes.

       9   Q   He is now ordering Mohamed Odeh to get his things together

      10   to leave.

      11   A   Yes.

      12   Q   Mohamed is reluctant to leave.  He likes Kenya.  This is

      13   what he tells you.

      14   A   Yes.

      15   Q   There is an incident that takes place -- this is my last

      16   question for Saleh.  There is an incident that takes place in

      17   Mombasa where Saleh confronts Mohamed in the street, and he is

      18   having a shouting match with Mohamed.

      19   A   Yes.

      20   Q   And Mohamed relates to you that Saleh is angry with him

      21   for not moving fast enough; isn't that correct?

      22   A   Yes.

      23   Q   And he is berating him in front of Fahad.

      24   A   Yes.

      25   Q   Now I want to move to Fahad.  Mohamed tells you that he

                                                                    4702

       1   doesn't like the fact that Saleh is speaking to him this way

       2   in front of Fahad; isn't that right?

       3   A   Yes.

       4   Q   Let's just go back to Fahad for a second and I think I am

       5   done.  Mohamed tells you that Fahad is a 22-year-old whose

       6   family is originally from Yemen but they are living in Kenya,

       7   correct?

       8   A   Yes.

       9   Q   He says he is not sure if Fahad is Al Qaeda.  He uses the

      10   word probably Al Qaeda.

      11   A   OK.

      12   Q   He describes Fahad as a young person in search of jihad.

      13   A   Yes.

      14   Q   And that Fahad was hot-blooded, right?

      15   A   Yes.

      16   Q   Looking for action.

      17   A   Yes.

      18   Q   In fact, I think in your notes you underlined the word

      19   action.

      20   A   OK.

      21   Q   In fact, Fahad paid $6,000 to take a course about bombing,

      22   explosives.

      23   A   Yes.

      24   Q   Paid for it out of his own pockets, right?

      25   A   Yes.

                                                                    4703

       1   Q   And what Mohamed says to you, he tells you about this

       2   incident where Fahad comes to visit him and he's got some TNT

       3   and some detonators, something like that.

       4   A   Yes.

       5   Q   When Mohamed explains this to you, you say to Mohamed,

       6   don't you, why would Fahad come to see you about this if he

       7   has more experience then you with bombs?  Right?  Do you

       8   recall asking him that question?

       9   A   Not specifically, but if it's in my notes, then I did.

      10   Q   Do you recall that Mohamed replied to the question, he was

      11   trying to show off, he was trying to impress me that he is

      12   some type of Mujahideen; isn't that correct?

      13   A   Yes, that is.

      14   Q   And he said Fahad was sort of taken aback because he was

      15   rebuffed by Mohamed.

      16   A   Yes.

      17   Q   In the spring of 1998, what Mohamed Odeh informs you is

      18   that Fahad now seems to be very close to Saleh, right?

      19   A   Yes.

      20   Q   And he says to you that Fahad is communicating messages

      21   from Saleh to him, that is, Fahad is telling him Saleh said,

      22   get ready, you got to go.

      23   A   Yes, on at least one or two occasions.

      24   Q   On one occasion when he tells, Fahad tells Mohamed that

      25   Saleh wants him, Fahad actually drives Mohamed to a location

                                                                    4704

       1   to meet Saleh.  Do you recall that?

       2   A   Yes.

       3   Q   And Mohamed tells you that he stays in the car and Fahad

       4   goes inside and comes back and tells him Saleh can't see you

       5   right now.  Right?  You don't remember?

       6   A   I really don't remember that but if it's in my notes and

       7   not in the -- you know, I'll agree to it.

       8   Q   Do you recall that Mohamed is telling to you that he

       9   observes that this young guy he once thought was a hothead now

      10   seems to have a very close relationship with the person who is

      11   the leader of the what, cell, right?

      12   A   Right.

      13   Q   And by the time August 1 comes and Mohamed is confronted

      14   by Saleh in the street, he is annoyed and embarrassed that

      15   Saleh would speak to him in such a way in front of this young

      16   guy who he once knew as a hothead.  That's what he says to

      17   him, right?

      18   A   Yes.

      19   Q   He also says to you that he now recognizes that Fahad is

      20   higher up than he is.  Do you want me to show you?

      21   A   No, that's OK.  OK.  I think from the gist of that, I

      22   believe that he was feeling annoyed that Fahad had a close

      23   relationship with Saleh.

      24   Q   I will move away from those individuals.  I just have a

      25   couple more questions and I'm done -- maybe.

                                                                    4705

       1            And the term cell, is that a word that Mohamed used

       2   or is that just your description of what he said?

       3   A   That's my description.

       4   Q   I want to ask you about some photographs, and this is from

       5   GX7 that is in evidence.  During the interview of Mohamed

       6   Odeh, you showed him various photographs.

       7   A   Yes.

       8   Q   You showed him, for example, a photograph of Al-'Owhali,

       9   right?

      10   A   Yes.

      11   Q   And he said he didn't recognize Al-'Owhali.

      12   A   Correct.

      13   Q   You showed him other photographs.  A person by the name of

      14   Shaban Hassani Ismail, and he said he did recognize him as a

      15   person from Mombasa.  Do you remember that?

      16   A   Vaguely but -- I remember seeing that in my notes.

      17   Q   You also showed him a photograph of an individual named

      18   Mohamed Abdellah Abu Bakr, and he indicated that he was once a

      19   director of MIRA; is that correct?

      20   A   I don't know specifically, but if it's in my notes that

      21   way, then I will agree.

      22   Q   He also recognized a photo of Abu Ubaidah.  You showed him

      23   a photo of him.

      24   A   Yes, I believe so.

      25   Q   At one point during the interview, you wanted to show

                                                                    4706

       1   Mohamed Odeh photographs of the bombing victims; isn't that

       2   right?

       3   A   Yes.

       4   Q   When you wanted to show him photographs of the bombing

       5   victims, what was the purpose of it?

       6   A   To shock him.

       7   Q   So that he would talk.

       8   A   Correct.

       9   Q   Mohamed refused to look at those pictures, didn't he?

      10   A   Yes.

      11   Q   When you showed Mohamed photographs of individuals that I

      12   have just described, he never refused to look at any of the

      13   individual photographs of the people you wanted him to see

      14   effected recognize; isn't that correct?

      15   A   Yes.

      16   Q   When Mohamed was going to come back to the United States,

      17   his clothes were changed; isn't that right?

      18   A   Yes.

      19   Q   He switched from a Nike shirt outfit to a black jump suit,

      20   correct?

      21   A   Yes.

      22   Q   During the time when Mohamed was interviewed over those

      23   days, at one point I think you gave him a sweater because he

      24   was a little cold, right?

      25   A   Yes, I gave him a sweatshirt.  I gave him my own

                                                                    4707

       1   sweatshirt.

       2   Q   Basically you gave him the shirt off your back, right?

       3   A   He was cold and I gave him a sweatshirt.

       4   Q   You gave him a sweatshirt so he could be a little more

       5   comfortable.

       6   A   Yes.

       7   Q   Do you have a recollection, Agent Anticev, of Mohamed

       8   being photographed in the Nike shirt?

       9   A   I have a vague recollection of that.

      10            MR. RICCO:  Can the jury see that?  That is in

      11   evidence.  That is GX126A.

      12   Q   That is the Nike shirt outfit that I was referring to.

      13   Mr. Odeh had this outfit on during the entire time that he was

      14   questioned by you; isn't that correct?

      15   A   Yes.

      16   Q   He never changed his clothes from the first day till the

      17   last day, as far as you know, right?

      18   A   That's the only way I remember him.

      19   Q   When Mohamed Odeh came to the interviews each day, he had

      20   the same Nike shirt and outfit on.

      21   A   Yes.

      22   Q   Just so the record is clear, once he was being questioned,

      23   from August 15 through the 27th, he didn't have access to his

      24   bag, isn't that correct, as far as you knew?

      25   A   As far as I know, no.

                                                                    4708

       1   Q   Those clothing that he had on here were vouchered by you

       2   after he left; isn't that correct?

       3   A   Yes.

       4   Q   By the way, do you know when this photograph was taken, if

       5   you know?

       6   A   When?

       7   Q   Yes.

       8   A   I think it was within the first maybe -- I can't be

       9   specific.  I have a vague recollection, but it was within the

      10   first few days.

      11   Q   When you interviewed Mohamed Odeh, he told you about

      12   Tawfiq, isn't that correct, also known as Mohammed Karama,

      13   right?

      14   A   Also known as?

      15   Q   Karama?

      16   A   Yes.

      17   Q   He told you about Mohamed Maduri; is that correct?

      18   A   Yes.

      19   Q   He also told you about Abu Ibrahim al Sudani, a

      20   businessman with Usama Bin Laden.  If you recall.

      21   A   I saw the name but I don't have much to say about it right

      22   now.  I don't remember the specifics.

      23   Q   How about al Utaybi?

      24   A   Yes.

      25   Q   Abu Hafs?

                                                                    4709

       1   A   Yes.

       2   Q   He told you a great deal about Abu Hafs; isn't that

       3   correct?

       4   A   Yes.

       5   Q   Abu Rahman, the explosives trainer.

       6   A   Yes.

       7   Q   He told you a great deal about who he was and, you know,

       8   the knowledge that he had about him.

       9   A   Yes.

      10   Q   He talked to you about Ahmad the Egyptian, right, and this

      11   was the Ahmad who came to visit him in the spring of '98?

      12   A   Yes.

      13   Q   He also talked to you about another fellow named Ahmad the

      14   Tanzanian.

      15   A   Yes.

      16   Q   He talked to you about Saleh.

      17   A   And Saleh, yes.

      18   Q   He also talked about Harun and how he knew Harun.

      19   A   Yes.

      20   Q   He talked to you again about the young man Fahad.

      21   A   Yes.

      22   Q   He talked about Ahmad Tawhil, right?

      23   A   Yes.

      24   Q   He indicated to you that Ahmad Tawhil was sort of an

      25   associate of Al Qaeda who was afraid to be seen with members

                                                                    4710

       1   of Al Qaeda.

       2   A   Right.

       3   Q   He talked about an Egyptian who lived in America by the

       4   name of Nawhe, right?

       5   A   Nawhe?

       6   Q   Yes.

       7   A   Yes.

       8   Q   He also talked about a Sheik Bahamad.

       9   A   Yes.

      10   Q   He talked to you about a guy named Abdallah al Madhri.

      11   A   Yes.

      12   Q   Then he talked about Abdul Tawhil from Morocco?

      13   A   Yes.

      14   Q   He talked about Abu Osama, an Egyptian from America

      15   training people on what to do when you get captured and

      16   questioned, right?

      17   A   Yes.

      18   Q   He talked about an African American named Abu Malif who

      19   was a martial arts teacher.

      20   A   Yes.

      21   Q   He talked to you about Mustafa, right?

      22   A   Yes.

      23   Q   Abu Ubaidah?

      24   A   Yes.

      25   Q   He also told you about many others, right?

                                                                    4711

       1   A   About?

       2   Q   Many others.

       3   A   There was a lot of names in that report.

       4   Q   Yes.  He also told you about the names of their wives and

       5   children, where they came from, where they lived, right?

       6   A   Yes.

       7   Q   For example, he told you that Harun was from the Comoros,

       8   right?

       9   A   Yes.

      10   Q   When Mohamed Odeh told you that he took bayat, he said his

      11   bayat was given by a person named Abu Said.

      12   A   Yes.

      13   Q   Did Mohamed Odeh say to you when he took bayat that it was

      14   a promise to help Muslim people everywhere?  Did he say

      15   something to that effect?

      16   A   That plus pledging total allegiance to Usama Bin Laden.

      17   That's part of bayat.

      18   Q   As long as what he asked him to do was Islamically

      19   correct, right?

      20   A   Yes.

      21   Q   He told you that he would not follow anyone blindly like a

      22   cat.

      23   A   That he did.

      24   Q   What Mohamed never said to you was that at the time he

      25   took bayat, that there was an agreement to kill Americans

                                                                    4712

       1   anywhere in the world; isn't that right?

       2   A   Well, he took bayat in what, March of '92, right.  No.

       3   Q   When he indicated to you that there was a change in the

       4   line, that he was being told that there was a change in the

       5   line, isn't that right?

       6   A   Change in the line.

       7   Q   Right?

       8   A   Yes, he made that statement.

       9   Q   He also indicated to you that this change meant -- and I

      10   think you asked him what the line meant and he thought you

      11   were talking about a telephone, right, but it was clear that

      12   what Mohamed was saying to you was that there was now a change

      13   and that --

      14            MR. FITZGERALD:  Objection to form.

      15            MR. RICCO:  I will rephrase the question.

      16   Q   By the spring of 1998, Mohamed was being told that he had

      17   to return back to Afghanistan because Usama Bin Laden now

      18   wanted to attack American people wherever they could be found

      19   in the world, right?

      20   A   Yes.

      21   Q   And I think that one of the things that Mohamed Odeh said

      22   to you was, if he wanted to attack Americans everywhere in the

      23   world, he didn't have to go back to Afghanistan, he could have

      24   done it right there in Mombasa with the tourists that were

      25   walking in the streets, right?

                                                                    4713

       1   A   Yes.

       2   Q   But he said that he was going to confer with Usama Bin

       3   Laden, and that was his reasons, as he stated to you, for the

       4   purpose of his travel; isn't that right?

       5   A   Yes.

       6            MR. RICCO:  No further questions.  Thank you very

       7   much.

       8            MR. FITZGERALD:  Just one brief question.

       9   CROSS-EXAMINATION

      10   BY MR. FITZGERALD:

      11   Q   What happened to your sweater?

      12   A   It was boxed up with the evidence.

      13   Q   Do you know where it is today?

      14   A   Probably in evidence.

      15   Q   Do you know if it was ever sent to the laboratory for

      16   testing?

      17   A   Yes, it was.

      18            (Continued on next page)

      19

      20

      21

      22

      23

      24

      25

                                                                    4714

       1            MR. FITZGERALD:  Thank you.  Nothing further.

       2            THE COURT:  We will take our lunch break and we will

       3   resume at 2:15.

       4            (Witness excused)

       5            (Jury excused)

       6            THE COURT:  I asked the witness to state his full

       7   name because in the recess there was a note from a juror

       8   saying when we have a witness come to testify, to retestify,

       9   can we get the name again so we don't have to shuffle through

      10   our papers.  It is very distracting reading all those pages,

      11   rifling back and forth.

      12            Yes, Mr. Ricco.

      13            MR. RICCO:  Forty-five minutes.

      14            THE COURT:  Forty-five minutes what?

      15            MR. RICCO:  To the completion of our case.

      16            MR. SCHMIDT:  Your Honor, I believe that the next

      17   witness to call is Mr. Kherchtou.

      18            MR. WILFORD:  No, Agent Doran --

      19            MR. SCHMIDT:  I am probably going to ask

      20   Mr. Kherchtou a number of questions as well.  I will sort of

      21   be restarting my case with that witness.

      22            MR. FITZGERALD:  I remind the court, I understand

      23   that they recall a witness but we don't want to see a

      24   duplication of cross-examination covered quite extensively in

      25   the first go-round.

                                                                    4715

       1            THE COURT:  I assume you will have the transcript

       2   before you of the previous cross.

       3            MR. FITZGERALD:  Yes, your Honor.

       4            MR. COHN:  Your Honor, what time are we meeting on

       5   the verdict sheet tomorrow?  Is it morning or afternoon?

       6            THE COURT:  Afternoon.

       7            (Luncheon recess)

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4716

       1                 A F T E R N O O N    S E S S I O N

       2                             2:15 p.m.

       3            (In open court; jury present)

       4            THE COURT:  Good afternoon.  Mr. Wilford.

       5            MR. WILFORD:  Yes, your Honor, thank you.

       6            Your Honor, at this time I would like to read a

       7   stipulation.

       8            It is hereby stipulated and agreed by and between the

       9   United States of America by Mary Jo White, United States

      10   Attorney for the Southern District of New York, Patrick J.

      11   Fitzgerald, Kenneth Karas and Paul W Butler, Assistant United

      12   States Attorneys, of counsel, and defendants Mohammed Sadiq

      13   Odeh by and with the consent of his assigned attorneys as

      14   follows:

      15            If called to testify as a witness an American

      16   official present in Nairobi during the period including August

      17   15 to August 20, 1998 would testify that on or about the

      18   morning of August 15th the official was present in the office

      19   of Edward Muchori, at Kenyan CID headquarters in Nairobi and

      20   that Edward Muchori and Rosemary Wanjiru, were also present

      21   along with others.  At that time the official saw GS479, the

      22   night bag, in the room and saw it opened with items inside the

      23   bag, although the officials did not handle the items.

      24            It is further stipulated and agreed this stipulation

      25   maybe received as evidence as Defendant's Exhibit as trial.

                                                                    4717

       1   And, your Honor, this is Odeh A7.

       2            THE COURT:  Received.

       3            (Defendant's Exhibit Odeh A7 received in evidence)

       4            (Defendant's Exhibit marked)

       5            MR. WILFORD:  Your Honor, at this time Mr. Odeh will

       6   call Special Agent Mary Doran.

       7    MARY DEBORAH DORAN,

       8        called as a witness by the defendant,

       9        having been duly sworn, testified as follows:

      10   DIRECT EXAMINATION

      11   BY MR. WILFORD:

      12   Q   Good afternoon, Agent Doran.

      13   A   Good afternoon, Mr. Wilford.

      14   Q   How are you?

      15   A   Good, thanks.

      16   Q   Now, would you tell the ladies and gentlemen of the jury

      17   how long you've been an FBI agent?

      18   A   Just over five years.

      19   Q   As part of your duties as an FBI agent were you assigned

      20   to participate in the investigation of the bombing of the

      21   embassy in Nairobi?

      22   A   I was.

      23   Q   And as part of your duties concerning that investigation

      24   were you assigned to remove evidence from various places and

      25   take that evidence to various places?

                                                                    4718

       1   A   Can you repeat that?  Was I assigned to take away

       2   evidence?

       3   Q   Did you pick up evidence from the evidence locker or from

       4   other people and bring it to the New York field office?

       5   A   No.

       6   Q   You did not?

       7   A   No.

       8   Q   Did you ever pick up evidence and take it anywhere?

       9   A   My name appears on a chain of custody for a number of

      10   items of evidence because at the time that the investigation

      11   started, the case was being run out of the Washington field

      12   office.  When the case became a New York case, I went through

      13   and administratively put my name on parcels of evidence, but

      14   as for taking evidence of searches, no.

      15   Q   Not for searches, but you did pick up evidence from the

      16   Washington field office and take it to New York?

      17   A   No.

      18   Q   Did you ever pick up evidence on February 22 of this year?

      19   A   I don't recall.

      20            MR. WILFORD:  Your Honor, may I approach the witness?

      21            THE COURT:  Yes.

      22   Q   I want to show you two items that have been previously

      23   Bates stamped 1B375 and 1B slash 39-3 and I've highlighted the

      24   areas.

      25   A   Okay.  These weren't brought from Washington.  These were

                                                                    4719

       1   brought from the New York FBI office to the Southern District

       2   of New York.

       3   Q   Now, Agent Doran, would it be fair to say that you picked

       4   the items up about 6:25 in the evening?

       5   A   Yes.

       6   Q   Now, did you pick the same items up two days?

       7   A   No, different items.

       8   Q   Which items did you pick up on the 21?

       9   A   On the 21st items K40 which was a passport, 481 which is a

      10   magazine and books and brought those over to the Southern

      11   District U.S. Attorney's Office.

      12   Q   On 2/22?

      13   A   On 2/22 I removed items K40 the passport, magazines and

      14   books and turned over to the Southern District US Attorney's

      15   Office.

      16   Q   Was it the same items on both days?

      17   A   I think only that may be an error in just putting the date

      18   down, but possibly a mistake, yes.

      19   Q   Simple mistake, right?

      20   A   Yes.

      21   Q   Now, did you in fact have as part of your responsibility

      22   during this investigation to try and locate United States

      23   currency and Kenyan currency that was removed from Mr. Odeh at

      24   the time of his arrest?

      25   A   Yes.

                                                                    4720

       1   Q   And the reason that you were trying to locate it was

       2   because of what?

       3   A   I understood that counsel for Mr. Odeh at that time was

       4   seeking to have his glasses, his watch and the currency

       5   returned.

       6   Q   So the currency, the watch and the money?

       7   A   Right.

       8   Q   Those were not with all of the other things that had been

       9   taken into custody and on to the lab and transferred to the

      10   New York field office, is that correct?

      11   A   They were not in New York, right.

      12   Q   They were separated somehow?

      13   A   Right.

      14   Q   Now, all of those items were in fact items that were with

      15   Mr. Odeh at the time that he was seized?

      16   A   They were with him at least as of August 14th.

      17   Q   You don't know what happened to the items after August

      18   14th, is that correct?

      19   A   At the time I didn't, no.

      20            THE COURT:  At what time?

      21            THE WITNESS:  At the time of August 14th I didn't

      22   know where the items were.

      23   Q   So do you know how the items got separated from the rest

      24   of Mr. Odeh's belongings?

      25   A   At the time or now?

                                                                    4721

       1   Q   At the time.

       2   A   At the time, no.

       3            MR. FITZGERALD:  Let me clarify.  At the time

       4   referring to August 14th, as to when the stuff was separated

       5   or her knowledge at that time?

       6            THE COURT:  Clarify.

       7   Q   We'll start with first, when did you find out that the

       8   items had been separated?

       9   A   That the items had been separated my best recollection

      10   would have been sometime in 1999.

      11   Q   Can I show you a document, perhaps it will refresh your

      12   recollection.  Does that document refresh your recollection?

      13   A   It does.  But these items eye glasses, watch and cash at

      14   the time I didn't know whether they were separated or still

      15   together.

      16   Q   So that was in October of 1998 you didn't know where they

      17   were?

      18   A   Pardon?

      19   Q   In October you didn't know where they were?

      20   A   We were looking for them.  I myself didn't know where they

      21   were.

      22   Q   Would you be kind enough to tell the jury when the search

      23   for Mr. Odeh's money, watch occurred, when that occurred and

      24   eye glasses occurred?

      25   A   Well, the request from his former counsel would have been

                                                                    4722

       1   received sometime on or before October 7th every 1998.  At

       2   that point I called the people who were working in Nairobi and

       3   asked them to look around and see if they could find these

       4   items.  I followed it up with this communication to formalize

       5   the request on paper, and this is dated October 19th.

       6   Q   So then at some point subsequent to October 19, 1998 you

       7   found out that the items had become separated, is that

       8   correct?

       9   A   Yes.

      10   Q   When was that?

      11   A   I learned -- can you repeat that?

      12   Q   Yes.  Sometime after the communication you learned that

      13   the items had been separated; is that correct?

      14   A   I don't really recall, but it's, yes.

      15   Q   You don't recall the date or approximate date when that

      16   was?

      17   A   I don't recall there being a question in my mind about

      18   things being together or apart.

      19   Q   Well, when was it that the money was located and the watch

      20   was located and the eye glasses were located?

      21   A   The money specifically I know was located in Nairobi in

      22   the first part of November, at least by November 5th.

      23   Q   So the money was still in Nairobi, Kenya?

      24   A   The money was still in Nairobi.

      25   Q   And it was returned to the New York office based upon

                                                                    4723

       1   communications between you and the people in Kenya, is that

       2   correct?

       3   A   This was my communication to Nairobi.  I don't remember

       4   any specific conversations about it after that, but I do know

       5   that it was located in a CID controlled safe room in Kenya in

       6   Nairobi and that was brought back by an FBI employee on

       7   Thanksgiving Day.

       8   Q   Is that what you were told, that's where it was, is that

       9   correct?

      10   A   Correct.

      11   Q   You didn't go to Nairobi to pick it up personally?

      12   A   No, I was in New York.

      13   Q   This is information you received?

      14   A   Right.

      15   Q   But one thing that you learned that it was not in the

      16   possession of the FBI, but was in fact in the possession of

      17   the Kenyan CID in their safe room, is that correct?

      18   A   It was in their safe room.

      19   Q   Now, do you remember the glasses and the watch were

      20   returned to the New York field office as well?

      21   A   They were, but by way of the laboratory.

      22   Q   So you don't know whether or not they were sent from Kenya

      23   to the laboratory?

      24   A   I don't know whether they went directly.  It appears they

      25   went directly to the laboratory and then to New York.

                                                                    4724

       1   Q   And so the eye glasses and the watch were tested by the

       2   laboratory, is that correct?

       3   A   I believe the eye glasses were.  I don't think the watch

       4   was.

       5   Q   And the eye glasses were tested for tracing evidence, is

       6   that correct?

       7   A   I believe so.

       8   Q   And also in Kenya, is that a fact?

       9   A   Yes.

      10   Q   When the money was returned to you did you photograph the

      11   money?

      12   A   I didn't, no.

      13   Q   Were there photographs taken of the money?

      14   A   Copies I know were made in Nairobi prior to it being sent

      15   back to New York.

      16   Q   The FBI made the photocopies?

      17   A   Yes.

      18   Q   If I can approach the witness and show her what has

      19   previously been marked as Odeh A7.  Does Odeh 7 consist of the

      20   photocopies of the money that was returned to the New York

      21   office?

      22   A   I believe so, yes.

      23            MR. WILFORD:  Thank you very much.  I have no further

      24   questions.  Oh, except that I seek to move in evidence Odeh

      25   A7.

                                                                    4725

       1            MR. FITZGERALD:  No objection.

       2            THE COURT:  Received.

       3            (Defendant's Exhibit Odeh A7 received in evidence)

       4   CROSS-EXAMINATION

       5   BY MR. FITZGERALD:

       6   Q   Agent Doran, the document that Mr. Wilford and you were

       7   discussing which was your written document trying to find out

       8   where the exhibits were in October of 19988, as of the time

       9   you wrote that document did you know where the glasses were?

      10   A   No.

      11   Q   Do you now know where the glasses were at the time you

      12   wrote that?

      13   A   I do.

      14   Q   Where were they?

      15   A   They had, they remained, they went with the other evidence

      16   to the laboratory and were in the laboratory in Washington.

      17   Q   So as of the time you wrote this there was a request to

      18   find his glasses, you sent a communication over to Nairobi to

      19   find the glasses and later realized that they were at the lab?

      20   A   Right.

      21   Q   And with regard to the money, do you know how the money

      22   got to the Kenyan CID people?

      23   A   Well, it was initially came with Mr. Odeh when he arrived

      24   from Pakistan and went to Kenyan custody on the 14th of

      25   August.  On the 20th the Kenyans transferred many of those

                                                                    4726

       1   items including the money to the FBI.  Having looked back I

       2   realized that there were two agents who did an inventory of

       3   the evidence room in Nairobi and they noted that on August

       4   21st the money had been signed back over to CID for safe

       5   keeping in their room.

       6   Q   Was there a safe in Nairobi for holding valuables as

       7   opposed to regular evidence with the FBI?

       8   A   With the FBI, no.

       9   Q   And the money made it back from Nairobi to New York after

      10   this conversation or the communication?

      11   A   Yes.

      12   Q   The glasses remained in the lab?

      13   A   Yes.

      14   Q   Do you know where the watch was discovered to be located?

      15   A   Watch was also at the laboratory.

      16   Q   And do you know what kind of watch it was?

      17   A   It was a Cascio watch.

      18            MR. FITZGERALD:  Thank you.  Nothing further.

      19            THE COURT:  Anything further?

      20            MR. WILFORD:  Two questions.  Your Honor.

      21   REDIRECT EXAMINATION

      22   BY MR. WILFORD:

      23   Q   Agent Doran, you reviewed a list of the currency that was

      24   taken from Mr. Odeh before you wrote the communication to

      25   Nairobi, isn't that correct?

                                                                    4727

       1   A   I reviewed a list of the currency before I sent the

       2   communication?

       3   Q   Yes.

       4   A   No.

       5   Q   So when you looked -- withdrawn.

       6            Did you have an opportunity to look at the handing

       7   over certificate that was prepared in conjunction with Mr.

       8   Odeh's being turned over to the Kenyan authorities?

       9   A   At that time, no.

      10   Q   And did you know the currency, the denomination of the

      11   currency at the time that you wrote the letter?

      12   A   At the time, no.

      13   Q   Now, you said that the money was turned over, according to

      14   your investigation, to the Kenyan CID; is that correct?

      15   A   Correct.

      16   Q   And they held it in their safe?

      17   A   Right.

      18   Q   No one notified anyone in the FBI about that, right?

      19   A   I don't understand.

      20   Q   Well, no one called up or notified the New York office and

      21   said, the money is being held in the CID, isn't that correct?

      22   A   No, there was no call like that.

      23   Q   Did they report to say the money is being held by the

      24   Kenyan CID?

      25   A   No.

                                                                    4728

       1   Q   There should have been a report done on that though,

       2   right?

       3   A   I don't believe so, no.

       4   Q   Well, if there was a report you wouldn't have to search

       5   for the money, is that correct?

       6   A   It would have made it easier but I don't think it was

       7   required.

       8   Q   Well, did anyone besides those two agents know where that

       9   money was?

      10   A   I can only guess.  I can presume that the people --

      11   Q   I don't want you to guess.

      12   A   Then I can't answer.  No, I can't answer that.

      13   Q   When the money was returned to New York it was returned as

      14   a result of your investigation, is that correct?

      15   A   I can't say that it was a direct cause and effect, but it

      16   did arrive within a few weeks, yes.

      17   Q   Well, no one knew where -- withdrawn.  You didn't know

      18   where the money was, did you?

      19   A   At the time I wrote the communication I didn't, but when

      20   the money was returned it was also returned with other items

      21   of evidence with somebody who happened to be traveling back at

      22   that time.

      23   Q   And no one indicated before, no one tried to send that

      24   money to New York before then, did they?

      25   A   No.

                                                                    4729

       1   Q   The money was just sitting in a safe in CID headquarters

       2   in Kenya?

       3   A   I believe so, yes.

       4            MR. WILFORD:  Thank you.  Nothing further.

       5            THE COURT:  Thank you, Agent.  You may step down.

       6            (Witness excused)

       7            THE COURT:  Defendant Odeh call its next witness.

       8            MR. WILFORD:  Yes, at this time the defendant Odeh

       9   will call Lourez McLoughlin, Special Agent of the FBI.

      10   DIRECT EXAMINATION

      11   BY MR. WILFORD:

      12   Q   Good afternoon, Special Agent.

      13   A   Afternoon.

      14   Q   How are you doing?

      15   A   Fine, thank you.

      16   Q   Can you please tell the ladies and gentlemen of the jury

      17   how long you've been a Special Agent?

      18   A   I've been a Special Agent for approximately five years.

      19   Q   As part of your duties were you assigned to go to Nairobi

      20   Kenya as part of investigating the bombing of the American

      21   Embassy?

      22   A   That's correct.

      23   Q   Was part of your duties to serve as the person who was the

      24   photographic recorder during the search that was conducted by

      25   a Special Agent?

                                                                    4730

       1   A   That's correct.

       2   Q   And you recorded photographically all of the items that

       3   were present during the search, is that correct?

       4   A   That's correct.

       5   Q   And you took pictures of those items, is that correct?

       6   A   Yes.

       7   Q   You prepared a photographic log of those pictures, is that

       8   correct?

       9   A   Yes.

      10   Q   What did you do with the pictures after you completed?

      11   A   Well, we never completed developing them.  We took the

      12   roll, rewound it and put it in a box where all the film was

      13   going we never saw the pictures.

      14   Q   So you don't know what happened to those pictures?

      15   A   That's correct.

      16   Q   Now, with respect to the items that you photographed, did

      17   you photograph any money?

      18   A   Not to my recollection, but I would need to see the log to

      19   remain myself.

      20            MR. WILFORD:  Thank you very much.  I have no further

      21   questions.

      22            MR. FITZGERALD:  No questions.

      23            THE COURT:  Thank you, Agent.  You may step down.

      24            (Witness excused)

      25            MR. WILFORD:  Your Honor, at this time the defendant

                                                                    4731

       1   would recall L'Houssaine Kherchtou.

       2    L'HOUSSAINE KHERCHTOU,

       3        called as a witness by the defendant,

       4        resumed, through the interpreter, as follows:

       5            THE COURT:  The Court reminds you that you're still

       6   under oath.

       7            THE WITNESS:  (In English)  Yes, your Honor.

       8            Could I have the interpreter's name?  Please state

       9   your name again.

      10            THE INTERPRETER:  My name is Seham Susan Laraby.

      11            MR. WILFORD:  Your Honor, just for purposes of the

      12   jury I'm going to remind them that Mr. Kherchtou testified on

      13   February 21st, February 22nd, February 26th and FBI 27th of

      14   this year.

      15            Your Honor, I also am going to ask that Mr. Kherchtou

      16   testify through the interpreter.

      17            THE COURT:  Very well.

      18   Q   Good afternoon, sir.

      19   A   (In English) Good afternoon.

      20   Q   How are you doing?

      21   A   (In English) Fine, thank you.

      22            MR. WILFORD:  I'm sorry.  Will you do the entire

      23   testimony through the interpreter.

      24            THE INTERPRETER:  Fine, thank you.

      25   Q   Now, Mr. Kherchtou, when you previously testified you

                                                                    4732

       1   informed the jury that you in fact had pled guilty; is that

       2   correct?

       3   A   Correct.

       4   Q   And you pled guilty after entering into a plea agreement

       5   with the government.  Isn't that correct?

       6   A   Correct.

       7            MR. WILFORD:  I'm sorry, your Honor, could we also

       8   have the interpreter speak into a microphone.  That way --

       9            THE COURT:  Yes.

      10            MR. WILFORD:  -- everyone can hear the question.

      11            THE INTERPRETER:  You mean in Arabic?

      12            MR. WILFORD:  Yes.

      13            THE INTERPRETER:  Sure.

      14   Q   Now, that agreement was based upon two sides getting

      15   something.  Isn't that correct?

      16   A   Correct.

      17   Q   The government got your assistance, right?

      18   A   Correct.

      19   Q   And you got the benefit of staying in America, isn't that

      20   correct?

      21   A   Correct.

      22   Q   Because at that point you really had nowhere else to go,

      23   isn't that correct?

      24   A   Yes.

      25   Q   Now, sir, when you entered into the agreement you agreed

                                                                    4733

       1   to plead guilty, isn't that correct?

       2   A   Correct.

       3   Q   And you pled guilty, did you not, sir, to a crime?

       4   A   Yes.

       5   Q   And the crime you pled guilty to, sir, was being part of a

       6   conspiracy to kill Americans all over the world.

       7   A   Yes.

       8   Q   When you were here the last time, sir, did you tell the

       9   jury that up to August 8th of 1998 you didn't know that the

      10   embassy in Nairobi was going to be bombed, isn't that correct?

      11   A   Yes.

      12   Q   Was that the truth, sir?

      13            MR. WILFORD:  I'm sorry, your Honor, before the

      14   interpreter gives the response, I think that particular

      15   question called for a yes or no answer.

      16            MR. FITZGERALD:  Objection, your Honor.

      17            THE COURT:  Well, you better start all over again

      18   because the interpreter probably has long forgotten the

      19   witness' last words.  Restate the question.  Try to make it

      20   short.

      21            MR. WILFORD:  I will.

      22   Q   Did you tell the jury the truth the last time you were

      23   here about not knowing about the embassy being blown up in

      24   August of 1998?

      25   A   Yes, it was true.

                                                                    4734

       1   Q   Sir, when did you join the conspiracy to kill Americans

       2   all over the world?

       3   A   I have no specific date for the exact date that was

       4   supposed to be planned, but I was told to --

       5            MR. WILFORD:  Objection.

       6            MR. FITZGERALD:  Your Honor, may he be allowed to

       7   finish the answer?  He asked the question.

       8            THE COURT:  I think we have to let him complete it.

       9   Go ahead.  Continue with his answer.

      10   A   But I was told by people who were in Mogadishu of what had

      11   happened.

      12            MR. WILFORD:  Objection.  Not responsive.

      13            THE COURT:  Yes, stricken.

      14            MR. FITZGERALD:  Objection, your Honor.

      15            THE COURT:  Ask the question again.

      16            MR. WILFORD:  Your Honor I'm going to withdraw the

      17   question.

      18            THE COURT:  Okay.

      19   Q   Sir, when did you become aware that the embassy, the

      20   American Embassy in Nairobi was bombed?

      21   A   7 August 1989.

      22   Q   You mean '98, right?

      23   A   '98, yes.

      24   Q   So you didn't know about the bombing of the embassy until

      25   after it happened, isn't that correct?

                                                                    4735

       1   A   Yes.

       2   Q   Sir, did you join the conspiracy to bomb the embassy in

       3   Nairobi?  Yes or no?

       4   A   I have to explain to you.

       5   Q   Well, first answer the question yes or no.

       6   A   No.

       7   Q   Sir, did you join the conspiracy that you pled guilty to

       8   in 1998?

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

      10            THE COURT:  Overruled.

      11   A   I have had no knowledge --

      12            MR. WILFORD:  I'm sorry, your Honor, I think that

      13   calls for a yes or no, did he join the conspiracy in 1998, yes

      14   or no.

      15            MR. FITZGERALD:  Your Honor, which conspiracy?

      16            THE COURT:  Yes.  I am not going to require a yes or

      17   no to a question worded in that fashion.

      18            MR. WILFORD:  I specifically asked the witness

      19   whether or not he joined the conspiracy to kill Americans all

      20   over the world in 1998.  I think that he can answer that yes

      21   or no.

      22            MR. FITZGERALD:  That question precisely can be put

      23   yes or no, we don't object.

      24   A   No.

      25            THE INTERPRETER:  The answer to the question was no.

                                                                    4736

       1   Q   What year did you join the conspiracy to kill Americans

       2   all over the world?

       3   A   When I learned that there was a conspiracy in Nairobi I

       4   gave them help, I gave them my room for the surveillance, and

       5   likewise in Mogadishu when I was informed that they started to

       6   fight Americans directly.

       7   Q   Now, you talked about Nairobi as a starting point when you

       8   let people use your room; is that correct?

       9   A   Correct.

      10   Q   The last time were you here didn't you tell the jury that

      11   you didn't know what the purpose was for people who were using

      12   your room?

      13   A   I told the jury precisely I did not know exactly what

      14   their aim was, but I told them that they were taking pictures.

      15   Q   Sir, you didn't know what was going on, right?

      16   A   From the information that I've collected from the training

      17   that where he were trained with Abu Mohammed we have learned

      18   that they are doing surveillance of the places of the enemies,

      19   the enemies.

      20   Q   Well, sir, in 1998 you didn't know what was being

      21   surveiled, isn't that correct?

      22   A   Precisely, I did not know precisely.

      23   Q   And you didn't know when it actually happened, when

      24   surveillance actually happened what was being surveiled, isn't

      25   that true?

                                                                    4737

       1   A   I knew that they were collecting information and surveying

       2   about the place that they are aiming to hit, but I don't know

       3   what where these places.

       4            (Continued on next page)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4738

       1   Q   And, sir, when you were speaking about joining this

       2   conspiracy, other than having people in your room, what else

       3   did you do?  You specifically.

       4   A   I was there studying and I was giving them all kind of

       5   assistance, whatever they wanted, and all those who wanted

       6   visas or whatever they wanted, I was making myself available

       7   for all the help that they need.

       8   Q   When you say all the help that they need, were you

       9   specifically giving people help as part of a conspiracy to

      10   kill Americans or were you giving people help who were part of

      11   Al Qaeda?

      12   A   I was giving assistance inside the Al Qaeda, but these

      13   people that were within the Al Qaeda are the ones who hit the

      14   Americans.

      15   Q   Sir, you didn't agree to that, though, right?

      16   A   I have learned about that, but I had no choice.

      17   Q   What you are saying, sir, is that after you agreed to

      18   cooperate, then you decided that what you had been assisting

      19   was part of what you pled guilty to, right?

      20            MR. FITZGERALD:  Objection, your Honor.

      21            THE COURT:  Yes, sustained.

      22   Q   When you pled guilty, that's when you learned or believed

      23   that people you had been assisting were responsible for

      24   backlog up the embassy; isn't that correct?

      25            MR. FITZGERALD:  Objection, your Honor.

                                                                    4739

       1            THE COURT:  I will allow that.

       2            THE INTERPRETER:  Excuse me.  Can you please repeat

       3   the question?

       4            MR. WILFORD:  Your Honor, with the court's

       5   permission, can we have it read back?

       6            THE COURT:  Try again.  It can be improved upon.

       7            MR. WILFORD:  Certainly, Judge.  No problem.

       8   Q   Sir, isn't it a fact that you learned after you decided to

       9   plead guilty that the people that you were helping you

      10   believed were responsible for the bombing of the American

      11   Embassy in Nairobi?

      12   A   Yes.

      13   Q   And whoever it was that you were helping, at the time that

      14   you were helping them, you had no idea whatsoever that the

      15   plan, or the agreement was to kill Americans anywhere in the

      16   world.

      17            MR. FITZGERALD:  Objection to form, indefinite

      18   people.

      19            THE COURT:  Overruled.

      20   A   At this time I had known that they were hitting the

      21   Americans in Mogadishu, especially that the American army was

      22   in Mogadishu.

      23   Q   You knew the American army was in Mogadishu.

      24   A   Yes.

      25   Q   You agreed to participate in killing Americans?

                                                                    4740

       1   A   I did not agree, but my work was not there, my work was in

       2   Nairobi.

       3            MR. WILFORD:  Thank you.  Nothing further.

       4            THE COURT:  Mr. Baugh on behalf of defendant

       5   Al-'Owhali.

       6   CROSS-EXAMINATION

       7   BY MR. BAUGH:

       8   Q   Mr. Kherchtou, how do I pronounce your name correctly?

       9   A   Correctly.

      10   Q   Mr. Kherchtou, how old a man are you?

      11   A   Thirty-seven years old.

      12   Q   For how long were you working with Al Qaeda?

      13   A   From '91 to the end of '95.

      14   Q   When you came to work with Al Qaeda in 1991, had jihad

      15   already been declared against Americans?

      16   A   No.

      17   Q   When was it declared?

      18   A   After '95.

      19   Q   Did you take bayat?

      20   A   Yes.

      21   Q   What year did you take bayat?

      22   A   In '91.

      23   Q   In 1991, by taking bayat, what did you agree to do?

      24   A   To work within a boundary of a group for the service of

      25   Islam and the Muslims, under the imrat of Usama Bin Laden, or

                                                                    4741

       1   leadership of Usama Bin Laden.

       2   Q   As part of your duty under your bayat, did you agree to

       3   sacrifice your life if asked?

       4            MR. SCHMIDT:  Objection, your Honor.  Asked and

       5   answered on previous cross-examination.

       6            MR. BAUGH:  Withdrawn.  I will rephrase it.

       7   Q   Isn't it true that as part of your bayat you agreed to

       8   give up your life?

       9            MR. SCHMIDT:  Objection, your Honor.

      10            THE COURT:  Overruled.

      11   Q   Is that true?

      12   A   I was not asked that.

      13   Q   No, but if asked that, you were expected to do it, weren't

      14   you?

      15   A   We went war, but we didn't die, or to battle, but we

      16   didn't die.

      17   Q   Under bayat, if you were asked to sacrifice your life, to

      18   become a martyr, did you agree to do that, if you were asked?

      19   A   Perhaps I would accept.

      20   Q   Did you get training when you were with Al Qaeda?

      21   A   Yes.

      22   Q   Did you talk about political issues?

      23   A   Sometimes.

      24   Q   Did you ever discuss what embassies were used for?

      25   A   Some believe that embassies was a place for spying.

                                                                    4742

       1   Q   Were people told this in your presence?

       2   A   Yes.

       3   Q   Were people told that embassies were used to establish

       4   covert operations?

       5            MR. SCHMIDT:  Your Honor, I object to this whole line

       6   of questioning.

       7            THE COURT:  Overruled.

       8   A   Yes.

       9   Q   Was there a discussion about why Americans had to die?

      10   A   There were no discussions of such type, but we were given

      11   the picture that Americans are enemies of Muslims.

      12   Q   Not everybody at Al Qaeda believes this, do they?

      13   A   Perhaps.

      14   Q   Did you formulate the opinion personally that Americans

      15   were enemies of Muslims?

      16   A   Throughout what happened in the Gulf War or Bosnia, an

      17   opinion was formed that America was not standing by the

      18   Muslims.

      19   Q   Did you believe that personally?

      20   A   Yes.

      21   Q   Is it wrong under your religion to kill innocents?  Your

      22   personal opinion.

      23   A   Yes.

      24   Q   Are any Americans innocent?

      25   A   Yes.

                                                                    4743

       1   Q   So all Americans were not viewed as the enemy?

       2   A   Correct.

       3   Q   So it would be a false statement if someone came in and

       4   said that Al Qaeda believed that all Americans are bad.

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

       6            THE COURT:  Yes, sustained.

       7   Q   Sir, during the time that you were being trained did you

       8   ever hear anyone say that all Americans are bad and must die?

       9   A   No, I have not heard that.

      10   Q   Were you taught as a member of Al Qaeda that the US was

      11   attempting to colonize Saudi Arabia?

      12   A   There were words said regarding that.

      13   Q   Did you believe that?

      14   A   I have not believed that with the meaning of colonization.

      15   Q   What term would you use, if not colonization?

      16   A   That the United States has economic interests in Saudi

      17   Arabia.

      18   Q   And you were personally opposed to this, right?

      19   A   Not exactly personally.  I don't object to that

      20   personally.

      21   Q   Sir, when you took bayat, did you agree to consider, if

      22   asked, killing yourself?

      23            THE COURT:  I think that has been asked and answered

      24   a number of times.

      25   Q   Sir, if you didn't believe in that personally, what sort

                                                                    4744

       1   of things did you personally believe in that caused you to

       2   consider killing yourself?

       3            MR. FITZGERALD:  Objection, your Honor.

       4            THE COURT:  Yes, sustained.

       5   Q   Based on what you were taught in Al Qaeda, did you make a

       6   decision to take the bayat, based on what you were taught?

       7   A   Yes.

       8   Q   What sort of things did you hear that made you agree to

       9   consider dying if asked?

      10            MR. FITZGERALD:  Objection to form again.

      11            THE COURT:  Sustained.

      12   Q   When you made the decision that you were willing to

      13   contemplate death if asked --

      14            THE COURT:  That is what is objectionable.

      15   Q   Sir, correct me if I am wrong.  As part of your bayat, did

      16   you agree that if asked you would consider dying?

      17   A   Correct.

      18   Q   On what did you base your decision to consider giving up

      19   your life?

      20   A   For the victory of Islam, and also for aiming for

      21   paradise.

      22   Q   And a victory for Islam would be to do what?

      23   A   For defense of Islam.

      24   Q   What did you want the United States to do that would mean

      25   a victory for Islam?

                                                                    4745

       1   A   At the time when I took the bayat, there was no mention of

       2   the United States.

       3   Q   Who were the enemies of Islam when you took your bayat?

       4   A   When I took the bayat was to fight in Afghanistan and it

       5   was against communism.

       6   Q   Did you personally believe that embassies were used for

       7   spying?

       8            MR. SCHMIDT:  Objection.

       9            THE COURT:  Sustained.  I think you have been through

      10   that.

      11   Q   All right.  Do you agree, sir, that to understand Al Qaeda

      12   you must understand Islam?

      13   A   Would you please explain your question.

      14   Q   Does a person have to understand Islam to understand why

      15   Al Qaeda has people who are willing to become martyrs?

      16            MR. FITZGERALD:  Objection, your Honor.  Competence.

      17            THE COURT:  The question is this witness's

      18   understanding and belief.

      19   Q   Right.  Do you believe that a person has to understand

      20   Islam to understand why Al Qaeda can find people who are

      21   willing to be martyrs?

      22   A   A person must understand Islam in order to understand this

      23   thinking.

      24   Q   Two last questions.  One, during the time that you were

      25   with Al Qaeda, were there a large number of young people who

                                                                    4746

       1   were willing to give their lives for an Islamic victory?

       2            MR. FITZGERALD:  Objection, scope.  This was covered

       3   the last time Mr. Kherchtou was here.

       4            MR. BAUGH:  No, that was al Fadhl.

       5            THE COURT:  I will allow it.

       6            MR. BAUGH:  Do you want me to repeat it?

       7            THE INTERPRETER:  No, that's all right, I remember.

       8   A   Yes.

       9   Q   Am I correct, and I want you to correct me if I am wrong,

      10   you know of people who agree with Al Qaeda but don't agree to

      11   killing people, don't you?

      12   A   Possibly.

      13            (Continued on next page)

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4747

       1   Q   Do you know of people who don't know -- who are opposed to

       2   killing people?  Do you know them or not?

       3   A   You mean specific people, certain people?

       4   Q   Yes, specific people.

       5            MR. WILFORD:  Your Honor, I am going to object.

       6            MR. BAUGH:  Withdrawn.  That's all right.

       7   Q   Lastly, sir, one area.  Are people who are important to

       8   the activities of Al Qaeda asked to be martyrs?

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

      10            MR. SCHMIDT:  I join in that objection, calls for

      11   operation.

      12            THE COURT:  Yes, sustained.

      13   Q   Am I correct, sir, that people who are vital to Al Qaeda's

      14   overall mission are not asked to be martyrs?  Don't answer the

      15   question.

      16            MR. FITZGERALD:  Objection, same objection.

      17            MR. SCHMIDT:  Objection.

      18            MR. WILFORD:  Objection.

      19            THE COURT:  Sustained.

      20            MR. BAUGH:  Got two objections.

      21            MR. RICCO:  Three.

      22            MR. BAUGH:  Got three, thank you.

      23   Q   One last.

      24            THE COURT:  I have been counting your questions.  You

      25   said two more questions --

                                                                    4748

       1            MR. BAUGH:  I haven't gotten answers. (Laughter)

       2            THE COURT:  Last question.

       3            MR. BAUGH:  Thank you, sir.

       4   Q   What level, if you know, of importance to Al Qaeda are the

       5   people who are asked to give their lives?  Don't answer.

       6            MR. WILFORD:  Objection.

       7            THE COURT:  Anything further?

       8            MR. BAUGH:  Obviously, no.

       9            MR. SCHMIDT:  Your Honor, I have some questions but I

      10   have an application first.

      11            THE COURT:  I will see counsel in the robing room.

      12            (Continued on next page)

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4751

       1            (Pages 4749 through 4750 sealed)

       2            (Recess)

       3            THE COURT:  Bring in the jury, please.  Will the

       4   witness take the stand.

       5            (Witness resumed)

       6            MR. RICCO:  Your Honor, our intention is to try to

       7   finish with Mr. Odeh today.  Other than Mr. Kherchtou, we have

       8   only some exhibits to put in.

       9            THE COURT:  I don't think I will be able to control

      10   that.

      11            MR. RICCO:  I just want the court to know our

      12   expectation.

      13            THE COURT:  This is your last witness?

      14            MR. RICCO:  He is our last witness.

      15            (Jury present)

      16            THE COURT:  Mr. Schmidt.

      17            (Continued on next page)

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4752

       1   CROSS-EXAMINATION

       2   BY MR. SCHMIDT:

       3   Q   Good afternoon, Mr. Kherchtou.

       4   A   Good afternoon.

       5   Q   The first time that you went to Nairobi -- withdrawn.

       6            Prior to being in Nairobi, were you in Afghanistan or

       7   in the Sudan?  Withdrawn.  I will try again.

       8            What country did you leave before you entered Kenya?

       9            MR. FITZGERALD:  Just a time frame, your Honor.

      10   Object.

      11   Q   What country did you leave when you first entered Kenya?

      12   A   I went from Pakistan through Dubai directly to Nairobi.

      13   Q   The people that you were with before you went to Nairobi

      14   for the first time were people who were in Pakistan; is that

      15   correct?

      16   A   Correct.

      17   Q   You came into Nairobi sometime in October of 1993; is that

      18   correct?

      19   A   Yes.

      20   Q   You stayed there for a short period of time, then you went

      21   to the Sudan; is that right?

      22   A   Yes.

      23   Q   That was because your family was going from Pakistan to

      24   Sudan at the time that you were coming to Nairobi; is that

      25   right?

                                                                    4753

       1   A   Yes.

       2   Q   You went to Sudan after your family arrived from Pakistan;

       3   is that correct?

       4            MR. FITZGERALD:  Objection, your Honor.  This was

       5   covered the last time in detail.

       6            THE COURT:  Suppose you move on.

       7            MR. SCHMIDT:  Your Honor, a lot of things have been

       8   covered the last time and I am just --

       9            THE COURT:  Go ahead.

      10            MR. SCHMIDT:  Thank you.

      11   Q   Is that correct?

      12   A   My family went from Pakistan to Saudi Arabia and from

      13   Saudi Arabia to Sudan.

      14   Q   You were in Nairobi for a short period of time, then you

      15   went to the Sudan and came back into Nairobi; is that correct?

      16   A   Yes, correct.

      17   Q   Could you give us an estimate of the period of time --

      18   withdrawn.

      19            How long did you stay in Sudan before you returned to

      20   Nairobi?

      21   A   Less than a month.

      22   Q   And then after you came back to Kenya and stayed in

      23   Nairobi -- withdrawn.

      24            You know who Abu Ubaidah al Banshiri is; is that

      25   correct?

                                                                    4754

       1   A   Yes.

       2   Q   Did you see him in Nairobi when you came to Nairobi the

       3   first time?

       4   A   I don't believe I saw him the first time I was there.

       5   Q   Did you see him in the Sudan when you went to the Sudan

       6   after being in Nairobi a short period of time?

       7   A   I do not remember.

       8   Q   Did you see him in Nairobi shortly after returning to

       9   Nairobi, within the next few weeks?

      10   A   It could possibly be so.  I do not precisely remember.

      11   Q   You heard through one of the people in Al Qaeda that al

      12   Banshiri was with others training Somalis in Hergeiza; isn't

      13   that correct?

      14   A   Yes.

      15   Q   Hergeiza, do you know that Hergeiza is in north Somalia?

      16   A   Yes.

      17   Q   Who told you that?

      18   A   One of the people in the guesthouse.

      19   Q   Did one of those people tell you that he came down from

      20   that area of Somalia?

      21   A   I do not precisely remember, but they told me that when

      22   they were there, they were there in the north.

      23   Q   When you say they told me, do you remember the particular

      24   person or persons that told you that?

      25   A   Truthfully, I do not remember.

                                                                    4755

       1   Q   Do you remember where you were when they told you that?

       2   A   I could have been in the guesthouse or someplace belonging

       3   to the Al Qaeda.

       4   Q   Your testimony is, you have a vague memory of this being

       5   told you; is that correct?

       6   A   They told me that they were in the north and they were

       7   training people there, and then after that they withdrew from

       8   there.

       9   Q   You didn't write anything down, did you, sir?

      10   A   Yes.

      11   Q   So what I am saying is that you really don't have much of

      12   a memory of how that conversation took place except for what

      13   you told us here today; is that right?

      14   A   Yes.

      15   Q   You also heard that this training took place after the

      16   incident in Somalia; isn't that right?

      17            MR. FITZGERALD:  Objection to form.

      18            THE COURT:  Sustained.  What incident?

      19            MR. SCHMIDT:  Your Honor, I am going to ask him that

      20   question and then I will ask him what the incident was.

      21            THE COURT:  The question is unintelligible.

      22            MR. SCHMIDT:  I don't think it is unintelligible --

      23            THE COURT:  Please don't argue.  Restate your

      24   question.

      25   Q   Did this training that you heard take place after any

                                                                    4756

       1   particular incident that sticks in your mind?

       2   A   I do not remember what was this incident.

       3   Q   Do you remember telling agents of the United States

       4   government that you heard about this training in the north of

       5   Somalia after the Somalia incident happened?

       6   A   You mean after the fall-down of Somalia?  You mean the

       7   government of Said Berri?

       8   Q   Mr. Kherchtou, did you tell an agent of the FBI on August

       9   16, 2000, that Al Qaeda people were in Hergeiza, Somalia, with

      10   Abu Ubaidah al Banshiri, and were training Somali people

      11   there, especially after the Somalia incident happened?

      12   A   Yes.

      13   Q   And by the incident, you are talking about the attack on

      14   the Abdi House, aren't you?

      15            MR. WILFORD:  Objection, your Honor.

      16            THE COURT:  Overruled.

      17   A   I have never heard about the incident of the Abdi House.

      18            (Continued on next page)

      19

      20

      21

      22

      23

      24

      25

                                                                    4757

       1   Q   Did you hear of the incident of the United States

       2   troops --

       3            MR. FITZGERALD:  Objection, your Honor.

       4            THE COURT:  Yes, sustained.

       5   Q   Do you recall the description of what the incident was

       6   that you told the agents?

       7   A   What incident are you talking about?  What incident?

       8   Q   Mr. Kherchtou, did you tell an agent of the FBI on August

       9   16, 2000, that Abu Ubaidah al Banshiri, with others, trained

      10   the Somali people, especially after the Somalia incident

      11   happened?  Period.

      12            MR. FITZGERALD:  Objection, asked and answered.

      13            THE COURT:  Yes, sustained.  Answered.

      14            MR. SCHMIDT:  He didn't --

      15            THE COURT:  Don't argue, please.  Ask another

      16   question.

      17            MR. SCHMIDT:  Your Honor, may we approach at sidebar?

      18            THE COURT:  No, let's proceed.

      19            MR. SCHMIDT:  It's a problem with translation and

      20   interpretation, your Honor.

      21            THE COURT:  I will see counsel and the reporter.

      22            (Continued on next page)

      23

      24

      25

                                                                    4759

       1            (Page 4758 sealed)

       2            (In open court)

       3            THE COURT:  Ladies and gentlemen, we are having some

       4   problem with translation, and I think rather than waste your

       5   time while we try and straighten it out -- I see heads nodding

       6   in agreement -- we will call it a day.  We are adjourned until

       7   tomorrow.

       8            (Jury excused)

       9            THE COURT:  The witness may step down.

      10            (Witness excused)

      11            THE COURT:  Will we have another interpreter

      12   tomorrow, since there seems to be some suggestion that this

      13   interpreter is not interpreting fully?

      14            MR. FITZGERALD:  Your Honor, just for the record, I

      15   know the witness does speak English, so I don't know that he

      16   missed the word Somali.  Putting that aside, I suggest that we

      17   use a court interpreter.  That is the one we have been using.

      18   I don't know that we have one available.  I don't want to show

      19   up in court tomorrow without an interpreter.  I don't want

      20   there to be any question about the capabilities of the

      21   interpreter.  When we knew Mr. Kherchtou was being called

      22   today, we assumed defense counsel didn't have one available

      23   and we brought Ms. Laraby in.  We do not have someone on

      24   standby that is not affiliated with the FBI.  So I wonder if

      25   there is a court interpreter that could be produced to be

                                                                    4760

       1   available.

       2            MR. WILFORD:  Would it be possible to use one of the

       3   interpreters in the booths?

       4            THE COURT:  That is what I am wondering.

       5            Tomorrow, can you be the interpreter for this

       6   witness?

       7            MR. MAGED:  Yes, I can, your Honor.  May I request

       8   from your Honor that the questions be broken down into one or

       9   two sentences for accuracy sake.

      10            THE COURT:  That is a very reasonable request.  The

      11   questions are very long and the witness gives a very long

      12   answer, and we notice that the interpreters do not take notes,

      13   they do it from memory, and I commend to everyone the use of

      14   short questions.

      15            I am told that the reason for the repetitiousness of

      16   the question was because there was a report that the adjective

      17   of Somalia in Somalia incident was not fully translated and

      18   that was why the question was being repeated.

      19            We have a few moments.  There are some moments.

      20            MR. SCHMIDT:  Yes, your Honor.  I have a application

      21   for a mistrial on behalf of Mr. El Hage and a severance, for a

      22   number of reasons.

      23            First, your Honor, your Honor cautioned one of the

      24   death penalty counsel in the initial phase of the trial, after

      25   either the cross-examination of Mr. Fadl or Mr. Kherchtou,

                                                                    4761

       1   about requesting witnesses not related to the guilt phase but

       2   related to the penalty phase.  The questioning by Mr. Baugh

       3   was not geared --

       4            THE COURT:  The questioning of which witness?

       5            MR. SCHMIDT:  Mr. Kherchtou today was not related to

       6   the guilt phase.

       7            THE COURT:  Which questions?

       8            MR. SCHMIDT:  I do not have it in front of me, but

       9   the questions related solely to who gets chosen to do the

      10   death jobs, almost entirely what is in the embassy, making

      11   surveillance.  These are not questions for fact defense.

      12   These are questions related to the penalty phase.  I made some

      13   objections and they were all overruled.  What has happened is

      14   that Mr. Baugh has used this witness as a penalty-phase

      15   witness, severely prejudicing Mr. El Hage --

      16            THE COURT:  I allowed the line of questioning, which

      17   was designed to show that the martyrs were at the low end of

      18   the totem pole of the hierarchy, because the fact that

      19   somebody was at the bottom of the hierarchy is arguably

      20   relevant to how knowledgeable such a person would be with

      21   respect to the overall scope of the conspiracy and the

      22   operations.  Therefore I thought that was a question that was

      23   relevant to the liability phase.  The interpretation that that

      24   is a penalty phase question is, you know, your interpretation.

      25   But if in fact somebody, if in fact somebody is thought to be

                                                                    4762

       1   expendable, one could argue that someone who is expendable is

       2   less likely to be a high-level, and therefore fully

       3   knowledgeable member of the organization.

       4            MR. SCHMIDT:  Fully knowledgeable is not an issue.

       5   Knowing the scope of the conspiracy is not an issue.  That is

       6   from your Honor's charge.  Those are not guilt issues.  It is

       7   so clear, your Honor, and we made a motion before this trial

       8   began to sever because of exactly what occurred here, exactly

       9   what occurred here today.  It was so clear that that

      10   cross-examination was not geared towards the guilt phase.

      11            THE COURT:  Mr. Schmidt, Mr. Schmidt, you are

      12   speaking with great emotion, but you are generating heat, not

      13   light.

      14            MR. SCHMIDT:  Excuse me.

      15            THE COURT:  Count 1, which named all of the

      16   defendants, alleges a conspiracy.  It alleges various

      17   objectives of the conspiracy.  The jury is going to have to

      18   decide whether each of the four members who are defendants on

      19   trial joined that conspiracy, with -- please let me finish --

      20   with knowledge of its purposes.  If somebody is not

      21   knowledgeable as to the overall nature of the conspiracy, it

      22   is a defense.  And the claim that somebody was at the low end

      23   of the hierarchy and therefore expendable and therefore not

      24   aware of the overall plan is an arguable issue on the merits.

      25   It was for that reason I thought the question about whether

                                                                    4763

       1   the martyrs were the masterminds or -- I am paraphrasing, of

       2   course -- or the expendable persons was a permissible question

       3   on the merits.

       4            Tell me why that is wrong.

       5            MR. SCHMIDT:  Because I don't think you need to know,

       6   they have to know the entire scope of the conspiracy, they

       7   only have to be found guilty of the goal.

       8            Let's take the embassy.  What relevance does the

       9   embassy --

      10            THE COURT:  I sustained that, didn't I?

      11            MR. SCHMIDT:  There is not one question but many

      12   questions.  When we review the record, we will see it.  It was

      13   clearly the whole purpose of it.  Now what we have is a

      14   witness who had previously testified, thoroughly

      15   cross-examined, went into new areas for the purpose of

      16   Mr. Al-'Owhali's penalty phase that has, even if your Honor

      17   thinks it has some probative value, the degree of probative

      18   value that came out of those questions and answers for the

      19   guilt phase was so minute and the prejudice that inured to

      20   Mr. El Hage was so great, it should never have been allowed to

      21   have occurred.

      22            More importantly, we believed this might happen and

      23   that is why we moved for a severance in the beginning.

      24            Thirdly, all the information is not even within the

      25   knowledge of this particular person, it is through the hearsay

                                                                    4764

       1   exception of coconspirator statements.  All of this material

       2   has so little probative value and such great prejudicial

       3   effect, and that is the problem of having a defendant who is

       4   death eligible with death counsel, with evidence against him,

       5   with a defendant who is not death eligible and has conducted a

       6   legitimate defense of the facts.  Therefore, because of that I

       7   move for a mistrial.

       8            MR. WILFORD:  Your Honor --

       9            THE COURT:  I will give you an opportunity.

      10            MR. WILFORD:  Thank you.

      11            THE COURT:  The witness had testified earlier that he

      12   didn't know what the targets were.  He knew that they were

      13   doing surveillance but he didn't know what the targets were.

      14   So the questions about what he knew about embassies and

      15   whether embassies were used for spying or for covert purposes,

      16   again, is not a question which is totally divorced from

      17   liability issues.

      18            Mr. Wilford.

      19            MR. WILFORD:  Yes, your Honor.  I rise on behalf of

      20   Mr. Odeh to join in a portion of Mr. Schmidt's argument, but

      21   we differ on this point, your Honor.  I think that we can't

      22   look at what occurred simply in regards to the testimony of

      23   the witness Kherchtou.  We have to also look at what occurred

      24   in the testimony of the imam, and I think that what we have

      25   here, your Honor, is a situation where certain questions were

                                                                    4765

       1   asked, and the questions that the court alluded to I am not

       2   quibbling with, but there are several questions which went far

       3   beyond the appeal of having anything at all to do with the

       4   guilt phase.  For instance, the questions of this witness

       5   dealing with what this witness thought about becoming a

       6   martyr, all those particular instances had nothing at all to

       7   do with the reasons why this witness was called or with the

       8   ultimate question of guilt on the part of Mr. Odeh or Mr. El

       9   Hage.  It was simply, your Honor, to allow the jury to have

      10   the opportunity to weigh out and say on this end we have

      11   Mr. Al-'Owhali, on this end we have Mr. Kherchtou, and that is

      12   strictly a penalty phase, your Honor.

      13            What we are asking the court to do, although we are

      14   joining in the motion for a severance and a mistrial, we are

      15   also asking the court, if the court is not inclined to do

      16   that, to give us the opportunity overnight to go through the

      17   transcript and ask the court to strike those portions of the

      18   testimony which are not relevant to the guilt phase.

      19            THE COURT:  With respect to the examination of the

      20   imam, there were questions that were raised as to the extent

      21   to which somebody who took bayat or somebody who was a member

      22   of Al Qaeda was bound by his oath or by his religious beliefs

      23   to adhere to dictates by the leader.  Again, it seemed to me,

      24   and it was very conscious, because I was aware of the issue,

      25   it seemed to me that there was sufficient relevance to

                                                                    4766

       1   liability to permit that questioning.  One of the things we

       2   know from our recent review of the proposed jury instructions

       3   is the relationship between a member of Al Qaeda and being a

       4   member of the conspiracy, and I can't say that inquiry as to

       5   the extent to which a devout Muslim was obligated to follow

       6   the fatwah of a scholar or a leader is a question which does

       7   not impact on liability.  It is certainly conceivable to me

       8   that a defendant could argue, perhaps without enthusiastic

       9   support from his client, that the client was a devoutly

      10   religious person who thought that he was obligated to do what

      11   his spiritual leaders told him to do, and therefore the extent

      12   to which that is or is not the case is relevant to liability.

      13            It is also relevant, of course it is also relevant to

      14   the death penalty phase, but, you know --

      15            MR. SCHMIDT:  Your Honor, I understand what your

      16   Honor is thinking, and I definitely disagree on two areas.

      17   First, what your Honor just indicated, that he was obligated

      18   to follow orders, is not a defense.  That was rejected in

      19   Nuremberg and thereafter.  Secondly, your Honor needs to

      20   consider the rights of the other defendants in weighing the

      21   value of those kinds of questions even if it theoretically at

      22   some point could possibly somehow be a defense with the

      23   prejudice of the defendants for being tried together.

      24            My objection is that, one, I disagree with your Honor

      25   that it is a defense.  Secondly, even if your Honor is correct

                                                                    4767

       1   that there is a theoretical basis of the defense, that

       2   evidence has so little probative value on that defense and the

       3   prejudice so greatly outweighs the probative value that your

       4   Honor should have prevented that line of questioning.  If I

       5   may have a moment.  If they are entitled to that defense, I

       6   think we are entitled to a severance, because that defense

       7   raises other issues of constitutional magnitude.

       8            THE COURT:  Yes.

       9            MR. WILFORD:  If I might, your Honor, just focusing

      10   on the particular question the court brought forth in terms of

      11   Mr. Baugh's cross-examination of Imam Siraj Wahhaj, the

      12   court --

      13            THE COURT:  If you don't pronounce his name

      14   correctly, he gets offended.

      15            MR. WILFORD:  I pronounced his name right, and I

      16   always do.

      17            MR. COHN:  And one of these days, Judge, you will

      18   too.

      19            MR. WILFORD:  The whole question that the court

      20   pointed out was that of a bayat.  I remind the court that

      21   Mr. Al-'Owhali didn't take a bayat.  So for Mr. Baugh to

      22   engage in that type of questioning was strictly geared toward

      23   the penalty phase --

      24            THE COURT:  He may not have taken it, but he is

      25   alleged to have been a member of an organization in which many

                                                                    4768

       1   members did take the bayat, and therefore it is relevant to

       2   the nature of the organization, the sense of discipline of the

       3   organization.

       4            MR. WILFORD:  OK, your Honor.  Thank you.

       5            MR. COHN:  Your Honor, our corollary motion for

       6   severance is coming in writing, as we requested.  It arises

       7   out of the same kind of issue, which is that you permitted Mr.

       8   Odeh's lawyers to ask questions which unfortunately had great

       9   relevance to their defense, about getting opinions from the

      10   imam.  You may remember that I objected and you overruled me,

      11   and in fact what they did was virtually undercut the entire

      12   penalty phase of our case.  That was inevitable.  In fact, I

      13   believe that their defense is highly relevant to theirs and I

      14   think your Honor is right and I think the effects have to be

      15   ventilated in a different way and I will do that in writing,

      16   as you requested.

      17            MR. WILFORD:  Mr. Cohn drives home the point that the

      18   entire line of questioning was specifically geared to the

      19   penalty phase.  Despite being given the opportunity to rely

      20   upon it in terms of guilt phase arguments, Mr. Cohn stood up

      21   and said --

      22            MR. COHN:  No, I didn't say that.  Don't misquote me.

      23            MR. WILFORD:  Excuse me.  I didn't interrupt you.

      24            THE COURT:  You know what, we are going to end this

      25   day because the day is getting to be too rancorous and the

                                                                    4769

       1   court has an appointment that it must keep.

       2            MR. WILFORD:  If I may finish, your Honor.  Mr. Cohn

       3   said that the penalty phase was impacted upon by the testimony

       4   of a witness called on behalf of Mr. Odeh, which indicates

       5   clearly that the questioning Mr. Al-'Owhali engaged in was

       6   geared toward the penalty phase and was directed at whatever

       7   they intend to put on at that time.

       8            THE COURT:  You know, the guilt phase and the penalty

       9   phase obviously are related to each other.  That is why

      10   Congress in its wisdom has provided that wherever possible

      11   they be tried before the same jury, and if one were to say you

      12   cannot at the guilt phase raise issues relevant to guilt

      13   because they may impact on penalty, you would severely,

      14   unconstitutionally limit the scope of a defense case.

      15            Well, I really do not believe that anything which has

      16   taken place this afternoon is of such a nature as to warrant a

      17   severance in this, what I presume is the final week, or almost

      18   the final week of the guilt phase of the case.  I suggest that

      19   the very emotional response to some of the questions that were

      20   asked of the witness who is now on the stand is greatly

      21   exaggerated, and the motion for severance made on behalf of El

      22   Hage is denied, and we are adjourned until tomorrow morning.

      23   We are adjourned until tomorrow morning.

      24            MR. RICCO:  All the motions are denied?  We joined

      25   that motion.

                                                                    4770

       1            THE COURT:  10 a.m.

       2            (Proceedings adjourned until 10:00 a.m., Wednesday,

       3   April 25, 2001)

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4771

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   SIRAJ WAHHAJ............4615   4640

       5                                  4678    4680    4686

       6   JOHN ANTICEV............4689

       7   MARY DEBORAH DORAN......4717   4725    4726

       8   L'HOUSSAINE KHERCHTOU...4731   4740

       9                                  4752

      10                         DEFENDANT EXHIBITS

      11   Exhibit No.                                     Received

      12    Odeh A4, Odeh B4, Odeh C4, and Odeh D4 .....4628

      13    Odeh A7 ....................................4717

      14    Odeh A7.....................................4725

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

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