6769 4a5esat1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 October 5, 2004 8 9:35 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6770 4a5esat1 1 (Trial continuing) 2 (In open court; jury not present) 3 MR. PAUL: We can proceed without Mr. Fallick, your 4 Honor. 5 THE COURT: First, I received Mr. Tigar's October 5th 6 letter relating to Mr. Fitzgerald. I reviewed the letter. The 7 letter concentrates on the addition of a cover letter to 8 Mr. Brave from Mr. Fitzgerald dated March 23, 1998 and the 9 impact of that cover memo. 10 I explained yesterday in the course of the argument 11 that there was a cover letter -- cover memo. The cover memo 12 was described. The existence of the cover memo and the 13 arguments made in the letter do not change my view from 14 yesterday, which I explained, that this material does not 15 warrant a mistrial or striking the Fitzgerald testimony, and 16 those motions are denied. There is no reasonable basis for 17 those motions based upon the late production of this material. 18 Any further use of these materials for purposes of 19 impeachment, which I explained yesterday, is simply not 20 substantial, but if the defendants wish to pursue that, I've 21 indicated that Mr. Fitzgerald can be recalled. And if the 22 defendants wish, Mr. Fitzgerald can be recalled in the 23 government's case. I indicated yesterday he could be recalled 24 in the government's case. The defendants declined that 25 yesterday and they said they reserved the opportunity to call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6771 4a5esat1 1 Mr. Fitzgerald in their own case. They're certainly welcome to 2 do that, and if they change their view as to having 3 Mr. Fitzgerald recalled now, they should tell me. 4 MR. TIGAR: No, your Honor. There has been no change 5 in that view. I wrote the letter that I did not out of 6 disrespect for what your Honor had already decided, but to 7 raise these additional matters. It had been our request that 8 the letter and those other things be docketed so that there 9 would be a record of our arguments in the clerk's file. 10 THE COURT: Sure. I've already docketed the full 11 letter from Mr. Morvillo with his attachments and I did that 12 last night so it will be filed today. 13 The other letters, your October 5th letter, I'll memo 14 endorse that this can be filed. 15 MR. TIGAR: And then there's my October 3rd letter as 16 well, your Honor. 17 THE COURT: You can file that. And if the clerk's 18 office asks, then it will just come up in a new cover memo and 19 it can be docketed. 20 MR. TIGAR: Thank you. 21 MR. MORVILLO: Your Honor, I just wanted to put on the 22 record that we have never seen Mr. Tigar's October 5th letter. 23 THE COURT: Let me give it to you and -- 24 MR. TIGAR: Actually, your Honor, no need. Ms. Grant 25 is handing it to Mr. Morvillo. We did serve everybody this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6772 4a5esat1 1 morning, I'm sorry if Mr. Morvillo didn't get it. That has not 2 been our intention. 3 One more thing, your Honor. Because Mr. Morvillo had 4 put 3515W on the Elmo yesterday, I did not -- even though it 5 was discovery material, I did not ask that my letter or any of 6 these other things be sealed. It seemed to me that the -- 7 enough had been thrust into the public view that it was 8 that ---they had lost this absence of presumptive First 9 Amendment right of access because they were documents on which 10 a decision was based, but I did not want to let that go by 11 because technically I think an argument could be made they're 12 still under a protective order. I do not see a basis for 13 sealing, but that is a matter of indifference to us. 14 THE COURT: Let me give Mr. Morvillo an opportunity to 15 review the letter, and since the government hasn't responded in 16 writing, I'll certainly listen to anything Mr. Morvillo wishes 17 to say for the record. 18 MR. MORVILLO: Thank you, your Honor. I'll be 19 prepared to respond as soon as I finish reading it, but -- 20 THE COURT: Fine. We've got another issue, and if it 21 doesn't disturb you, the issue concerns another letter that I 22 think is Mr. Dember's. So you can read on and we'll deal with 23 the issue of 2634. 24 Mr. Tigar sent a letter last night dealing with 2634. 25 MR. TIGAR: I have not seen that letter, your Honor -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6773 4a5esat1 1 oh, it's my letter. 2 THE COURT: It's your letter. 3 MR. TIGAR: I thought you said the Dember letter. 4 THE COURT: Do you want an opportunity to read it? 5 MR. TIGAR: I'm consulting my other personalities, 6 your Honor, and collectively we will have an answer for the 7 Court shortly. 8 (Pause) 9 MR. TIGAR: Just a moment, your Honor. We're 10 retrieving it. 11 Yes, your Honor. I wrote two briefs last night; that 12 was the first one. Now I remember. It all comes back. Short 13 term memory is full. 14 I appreciate the Court's indulgence. Should I address 15 the matter or should Mr. Dember, or is the Court ready to rule? 16 THE COURT: Well, I think I have your letter and I 17 think Mr. Dember should address it. 18 MR. DEMBER: Your Honor, to begin with, we certainly 19 stand by our arguments we made yesterday with respect to 20 whether or not the entries in this notebook, which is Exhibit 21 2634, should be admitted into evidence. Those are our primary 22 arguments. 23 But on top of those, your Honor, as well, what's in 24 the notebook, frankly, particularly the July 2001 entries, are 25 essentially irrelevant to the issues in this case. Defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6774 4a5esat1 1 refers to Dr. Edwardy's testimony. And clearly, your Honor, 2 Dr. Edwardy was called as a witness to establish that the false 3 dissemination of medical information about Abdel Rahman which 4 was issued by Mr. Sattar and one of his coconspirators claiming 5 that he was not being given his insulin and medication was 6 false. In order to prove the falsity of their representations 7 and their dissemination of any information, we called 8 Dr. Edwardy to testify about the care that he was being given 9 and the fact that he was always given his medications and his 10 insulin. And at times they would just reduce his insulin when 11 he was fasting, but they never would have withheld his insulin 12 from him. 13 That was essentially the primary reason for calling 14 Dr. Edwardy. That doesn't open the door to everything that's 15 written in this notebook, your Honor. 16 Counsel refers to Rules 803, subdivision 1, 3 and 4, 17 none of which apply in this case, your Honor. If one looks 18 through the entries made in July 2001, you have all kinds of 19 complaints written down presumably by Ms. Stewart, that Abdel 20 Rahman makes to her and Mr. Yousry. 21 If your Honor recalls the reading of the July 2001 22 prison visit, many of these things have nothing to do with his 23 medical, emotional or psychological condition. They have to do 24 with his complaining about in general prison conditions, which 25 are not covered by 803 or those subdivisions of 803. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6775 4a5esat1 1 And on top of that, when he does complain about 2 medical conditions, these are more often than not medical 3 conditions in the past, not present medical conditions. So 4 they don't fall within the Rule 803 subdivisions I just cited. 5 Just to point out, your Honor, a number of the 6 complaints that are elicited in this notebook by Mr. Abdel was 7 the fact that Mr. Abdel Rahman doesn't like when he's offered 8 recreation. That's one of his complaints. He complains about 9 when his phone calls are permitted. They're always delayed in 10 coming. 11 He claims he doesn't get his haircuts in a timely 12 manner. He complains that the speaker phone or mechanism in 13 his prison cell apparently doesn't work or that nobody responds 14 to him. He complains that he believes that somebody in the 15 prison among the prison personnel put a bird in his toilet. He 16 complains about not being able to attend Friday prayer. 17 None of these, your Honor, fall within the exception, 18 which is 803. This is just -- he complains, your Honor, about 19 knocking on his second floor window. None of these are medical 20 matters. None of them fall within 803. 21 And as I said, when it comes today to the medical 22 issues that he complains about, those are medical issues that 23 aren't apparently current, according to what he told 24 Ms. Stewart. So 803 doesn't apply. 25 So on top of the arguments we made before, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6776 4a5esat1 1 yesterday, these two are -- do not fall within the sections 2 that Mr. Tigar cites in his letter. 3 THE COURT: Could I -- go ahead. 4 MR. DEMBER: I'm going to stop there, your Honor. 5 THE COURT: Were you finished? 6 MR. DEMBER: Yes. 7 THE COURT: Was -- how did we arrive at the point of 8 the admissibility of 2634 in toto? 9 MR. DEMBER: The entire -- 10 THE COURT: Right. The government had initially only 11 wanted to introduce the last page. 12 MR. DEMBER: Your Honor, only the last page had 13 cleared the wall by the special masters. We only knew about 14 the last page when we went to offer it. Once that occurred, 15 what we had was a single page, your Honor. I'll hold it up so 16 your Honor could see it. We have a copy of this single page. 17 And so initially I spoke with Ms. Shellow-Levine about 18 coming to some kind of accommodation as to -- because the 19 special master's report had indicated that it was a page from a 20 notebook which apparently had the notes of other prison visits, 21 that we say with some kind of accommodation from the defense, 22 either redacting all the other pages but leaving the dates that 23 were on those pages, which was a possible accommodation. That 24 request by me was rejected. 25 So with that being rejected and them not wanting to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6777 4a5esat1 1 compromise on how this could be presented, we were left with 2 the only option, which was to present the copy of this final 3 last page of what is now marked as 2634. 4 Once your Honor ruled it admissible because they 5 challenged that as one of the Stewart exhibits, then Mr. Tigar 6 said, well, we want the whole notebook to come in. And then we 7 spoke and we reviewed it. We said, fine, the whole notebook 8 can come in. I don't believe, your Honor, at that point it was 9 clear by either side as to any limitations on any parts of the 10 notebook; in other words, whether any page of the notebook 11 would come in under a limiting instruction. 12 Once we reviewed the pages, your Honor, that's after 13 Mr. Tigar offered and suggested either under 106 or for other 14 reasons that the -- that he would agree to the whole notebook 15 coming in, we reviewed it, had the first time to review the 16 notebook, saw what was in it and certainly saw on the number of 17 pages that consist of notes from the July 2001 visit that this 18 was Ms. Stewart's writing down what Abdel Rahman had said 19 during that visit, which we read to the jury when we read in 20 the transcripts of that visit. 21 And certainly when we negotiated that visit with the 22 defense, we certainly made clear that all these complaints, 23 medical -- by Abdel Rahman of his medical condition, of his 24 conditions of confinement, were hearsay, inadmissible, and 25 there would be a limiting instruction with respect to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6778 4a5esat1 1 That was our view. 2 Once we saw the notebook and saw that this was simply 3 a repetition of those statements by Abdel Rahman written by 4 Ms. Stewart, clearly we take the same view. And so that's 5 where we have arrived at our current position. 6 Frankly, your Honor, if -- first of all, if we have to 7 go now and go back and sort of reinvent this exhibit, I think 8 it's quite crystal clear, your Honor, that this last page of 9 the exhibit would not -- withdrawn. 10 It's our position, your Honor, that the pages that 11 consist of Ms. Stewart's writing from the July 2001 visit would 12 not be admissible under Rule 106, if we offered the last page. 13 The last page has nothing to do with the writings that are on 14 those previous pages, not to mention the fact it's written in a 15 completely different form of ink, whereas -- so it's likely it 16 wasn't even written on that particular day. 17 This notebook, your Honor, has in it, from what best 18 we can tell, notes from other visits Ms. Stewart apparently 19 made to Abdel Rahman when he was in prison. The first page 20 is -- reads Sheikh Omar and has a date, 9/98. From our review 21 of the notebook your Honor, it appears either this is a 22 notebook she had which she used when she visited Abdel Rahman 23 or perhaps when she also spoke to him on the telephone during 24 her prison calls. That seems to be what this notebook was used 25 for, with exception of the May 2000 visit, which there's no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6779 4a5esat1 1 indication there's any notes here. 2 THE COURT: Could you pass the notebook up. 3 MR. DEMBER: Yes, sir. 4 Your Honor, may I just clarify one point Mr. Barkow 5 brings to my attention. He reminds me that we were looking at 6 the videotape, the brief portion of the videotape that we did 7 play of the July 2001 visit. He reminded me that Ms. Stewart 8 actually put a number of pens on the table. So I'm -- I can't 9 say that -- 10 THE COURT: On the first day of the visit? 11 MR. DEMBER: Yes. 12 THE COURT: Yes. 13 MR. DEMBER: Yes, I'm just making clear to the Court 14 that I'm not -- I can't represent to the Court that the last 15 page wasn't written during the July 2001 visit. I don't 16 want -- that's -- I don't know when it was written, your Honor. 17 We don't know when it was written, but I don't want to -- to 18 the extent I'd indicated I thought it wasn't, I can't say when 19 it was written. 20 But whenever it was written, your Honor, it's our view 21 under 106, none of the rest of the entries in that notebook 22 need to be admitted with that last page. 23 That's all, your Honor. 24 MR. TIGAR: Your Honor, first, the government did 25 offer the whole book. And as I understand it, that was its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6780 4a5esat1 1 decision. 2 However, let's look just at this first page. Every so 3 often interrupts to give an English translation. Unless that 4 was written during a visit to Sheikh Abdel Rahman at a federal 5 penal institution, then it has nothing to do with the 6 allegations of this indictment. And -- 7 THE COURT: And the government has argued in its 8 correspondence to me and to the -- my recollection to the 9 special master that, in fact, the inferences are that it was 10 written during the July 2001 prison visit, an inference that is 11 supported by the transcript and I believe what I saw, unless my 12 memory fails me, on the -- no, I'd have to go back and check 13 whether it was also supported by the video that we saw of the 14 July 2001 prison visit. There plainly was a discussion at the 15 beginning of the first day of that visit, which is correct. 16 MR. TIGAR: Yes, your Honor, there's no question, 17 Ms. Stewart says to Mr. Yousry at several points, do some 18 translations. That's what she said and that's been a matter 19 that's been discussed. And we don't think there's anything 20 wrong with her saying that, but that is the government's 21 theory, and we'll address it at the appropriate time. 22 THE COURT: Mr. Dember rose to say something. 23 MR. DEMBER: I'm informed this sort of predates any 24 entry to this case, but Ms. Baker reminds me we have never 25 represented to the Court or to the special master when that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6781 4a5esat1 1 last page was written. We've indicated -- I think I believe 2 the special master may have drawn that conclusion on his own, 3 but we never made that representation or advocated that 4 particular -- that it was that particular visit or that 5 particular time when that happened. 6 I would note, your Honor, that just from my 7 recollection of what's in the book, there's an entry for March 8 '99 in that book, and Ms. Stewart paid a visit to Abdel Rahman 9 in March of '99 as well at the Federal Medical Center at 10 Rochester. So it's -- you know, it could be at least one of 11 those two visits. 12 MR. TIGAR: Then of course, your Honor, the first 13 question would be, and I'll have to refresh my recollection, 14 which of the prison visits it is alleged that Ms. Stewart 15 engaged in improper covering conduct, whether it was the May or 16 July 2000 or when it was, because my recollection is there was 17 only one of them. But I'll check the indictment to see that. 18 Then the next -- if indeed she wrote at some point 19 during some visit, right, every so often interrupted to give an 20 English translation, the question of why she did that and 21 whether the fact that she wrote that supports any allegation of 22 the indictment about what was going on creates a further 23 problem, because there's no allegation that as of the 1998 24 visit that Ms. Stewart was engaged in trying to pass a message 25 or do anything of that sort about -- with respect to the events SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6782 4a5esat1 1 that happened in May of 2000. 2 There is an allegation the conspiracy begins in 1997, 3 but a free-floating allegation that at some point during some 4 visit she wrote that, we suggest, is irrelevant. The 5 relevancy, therefore, if any, derives from what? Not just 6 what's on the screen. That might be sufficient for your Honor 7 to make a conditional relevancy determination under 104. That 8 would be your Honor's decision and we've discussed those facts. 9 But a conditional relevancy determination under 104 is 10 not solely within the Court's province. The question of 11 whether this was written, when it was written the context in 12 which it was written and, therefore, its relevancy to the 13 government's or the defense theory of the case has to do, we 14 suggest, with the book as a whole. That is why we have taken 15 the position consistently that it all ought to come in and the 16 government agreed with us. 17 So far yesterday that was the state of play. The 18 government agreed it should all come in. Now the government 19 says, well, no, not if we're not going to get an instruction 20 that nothing comes in for the truth of the matter asserted. 21 My problem is this, your Honor: Suppose Ms. Stewart 22 takes the stand and says, this is my book. I was with Sheikh 23 Abdel Rahman and he said in the present tense, looking now at 24 page 005573, I have sufferings, I am suffering. At that point 25 the jury should be able to say, oh, that's for the truth, he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6783 4a5esat1 1 had sufferings. And that's, your Honor, that's the issue that 2 we confront here. 3 We agreed -- we did an agreement about the videotape. 4 And maybe my letter tries to state a more cosmic theory than is 5 necessary. It would not be the first time I've done that and 6 then forgot completely that I had, of course. 7 THE COURT: You're really arguing against a prospect 8 that what I will do eventually is to say, OK, none of the book 9 comes in except the last page, and that's a possibility. It's 10 a possibility because there are lots of ways to redact this 11 book; having read the whole book, to allow the last page in 12 without all of the remaining items in the book, which, taken 13 together, are overwhelmingly materials that the defendant would 14 want and not the government, because they reflect the entire 15 period of consultation between the lawyer and others in 16 connection with Sheikh Rahman. And that's a possibility, but 17 I'm not inclined to do that. 18 I'm faced with a more limited question, which is the 19 limiting instruction that I gave yesterday after listening to 20 the parties. And I am prepared to continue with that limiting 21 instruction, and I'll explain why, and I'll explain a couple 22 of -- what I think of as a -- as clarifications in response to 23 the letter. 24 Let me ask another question: There is an assertion in 25 the letter that Sheikh Rahman is "unavailable." My SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6784 4a5esat1 1 understanding from the correspondence before trial was that he 2 was made available and no one has asked for a subpoena -- 3 MR. TIGAR: That's right, your Honor. 4 THE COURT: -- to bring him in. 5 MR. TIGAR: Your Honor, my statement in the letter was 6 that he's available to the United States by simply arranging. 7 He's unavailable, except upon the most onerous and difficult 8 conditions imposed by the United States as a condition of 9 confinement. 10 That doesn't say we couldn't subpoena him. I concede 11 we could subpoena him. In order to have a consultation with 12 him, we were required to take a wall team translator, all sorts 13 of conditions that I regard as onerous under the circumstances. 14 I don't want to litigate those. And if I seem to be stating 15 something that was beyond what was so, then I apologize, but 16 that is what I meant. 17 May I say this, your Honor: If the Court is -- I hear 18 the Court. The Court does not find my hearsay analysis 19 persuasive. I'm prepared to desist from my letter, to accept 20 the situation as it was yesterday with the limiting 21 instruction, knowing that when Ms. Stewart takes the stand -- 22 it's understood, when Ms. Stewart takes the stand, she may very 23 well be able to establish as a matter of Rule 104 conditional 24 relevancy a basis to say, oh, now that particular thing comes 25 in, now that particular thing comes in. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6785 4a5esat1 1 And if she takes the stand and if we do that, it would 2 then be my intention out of the hearing of the jury, having 3 laid that foundation, to make that application. And if that's 4 because -- I don't -- 5 THE COURT: That's fine. 6 MR. TIGAR: I don't want to get into an argument with 7 the Court. 8 THE COURT: That's fine. 9 MR. TIGAR: -- that ultimately I'll -- in which the 10 Court and I would disagree about something that in the grand 11 scheme of things does not matter very much. I hear the Court's 12 view, and if it is the Court's view that I would not be 13 disrespectful by seeking to reopen it when we lay the 14 foundation later on if we did, then I desist. 15 THE COURT: OK. No, you're not being disrespectful, 16 nor would it be disrespectful to raise the issue with 17 respect -- at a later point with respect to an individual 18 statement that fell within a hearsay exception. 19 But the blanket statement that all of the statements 20 by Omar Abdel Rahman should come in and that there shouldn't be 21 a limiting instruction with respect to the statements by Sheikh 22 Rahman, particularly given the history of the negotiations with 23 respect to the transcript of the entire visit and the way in 24 which this exhibit was coming in with respect to completeness, 25 for all of these statements that Ms. Stewart wants in and not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6786 4a5esat1 1 the government, is not well taken. 2 So you're not disrespectful to reserve rights to raise 3 the issue at a future time with respect to specific statements 4 by Sheikh Rahman, at which time I will have to examine the 5 issue. 6 MR. TIGAR: We had not asked in our letter that all of 7 the statements be admitted. We just said those that were 8 subject to the hearsay rule. I didn't wish to be 9 misunderstood. 10 THE COURT: But there was no effort to go through the 11 exhibit and to -- 12 MR. TIGAR: I did not in that letter do that, your 13 Honor. 14 Now, with respect to the transcript of the visit, I am 15 limiting by my agreement with the government -- our agreement, 16 all the lawyers -- as to what we can ask for later on. I'm not 17 so limited with respect to the book. And that was -- to that 18 distinction, what we agreed never to raise again and what we 19 did not, we will of course adhere. 20 THE COURT: All right. 21 OK, Ms. Baker. 22 MS. BAKER: Your Honor, I have what I hope is a very 23 brief matter in the nature of housekeeping. 24 Earlier in its case the government introduced and 25 presented to the jury a recording in evidence as Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6787 4a5esat1 1 Exhibit 1034. That is a primarily English language recording 2 of a call that has now been testified about several times. It 3 starts with Mr. Sattar and Mr. Yousry on the phone and then 4 they get Mr. Clark on the phone in his office, and then later 5 Mr. Clark gets off the phone and Mr. Sattar -- sorry, 6 Mr. Yousry gets off the phone and Mr. Sattar and Mr. Clark have 7 a three-way call with a reporter. 8 When the government presented that recording, in the 9 corresponding transcript, the transcript was characterized on 10 the record as being presented as an aid to the jury because the 11 call is in English, which is true as to perhaps 95 percent of 12 it or a little more than that. But there are several lines of 13 Arabic in the call which were translated in the transcript, and 14 the government offers into evidence those portions of the 15 transcript that are the translation of the few lines of Arabic, 16 and that is something that we neglected to do at the time that 17 the call and the transcript were presented. 18 THE COURT: What is the document number for the 19 transcript? 20 MS. BAKER: 1034X. 21 MS. SHELLOW-LAVINE: Your Honor, according to my notes 22 of the limiting instruction, the exhibit was admitted, I think, 23 on the 26th of July. And my note says that the transcript is 24 an aid except for those portions in Arabic as to which there is 25 evidence. I have not checked the transcript, but that's what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6788 4a5esat1 1 my cryptic note of the limiting instruction says. 2 MS. BAKER: If that is the case, obviously that's 3 sufficient. I had checked the transcript and didn't see 4 that that clarification was in there. 5 THE COURT: OK. Could you check at the break. We'll 6 have someone check, and if so, we can come back again. 7 Let me return to Government Exhibit 2634. 8 Mr. Morvillo? 9 MR. MORVILLO: Thank you, your Honor. 10 I just wanted to respond to Mr. Tigar's October 5, 11 2004, letter. The government disputes the characterization by 12 Mr. Tigar of the inferences that could be reasonably drawn from 13 the memos for the reasons largely set forth yesterday. And the 14 government also agrees with the Court's ultimate resolution of 15 this issue for the reasons stated by the Court earlier today. 16 And I have nothing further to add. 17 I would also with respect to the order of proof of the 18 Yousry search materials that we'll be getting to later this 19 morning, I'd like to hand up to the Court a chart which lists 20 all of the exhibits and what, if any, limiting instruction 21 would be applicable. 22 THE COURT: All right. There are, by the way, a 23 couple of outstanding issues which are still out there which 24 don't have to be addressed at the moment. 25 One was Ms. Shellow-Levine's letter that included a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6789 4a5esat1 1 motion in limine with respect to precluding some testimony or 2 examination, and the second was Ms. Shellow-Levine's letter 3 seeking to admit the Hawk memo. 4 MR. TIGAR: There's also the 9/11 memo, your Honor. 5 THE COURT: That was the first item. 6 MR. TIGAR: I thought -- 7 THE COURT: I was -- that was the motion in limine I 8 was referring to. 9 MS. BAKER: Your Honor, as to 1034X, we found the 10 portion of the transcript, which is at transcript pages 4314 to 11 15. And Ms. Shellow-Levine is correct that when the Court 12 addressed the jury about this exhibit, the Court said that 13 the -- well -- I'm sorry, it's not clear to me whether the 14 Court is speaking to the jury or just to counsel, but on page 15 4315 the Court says "and the transcript was an aid to the jury 16 except for those Arabic portions which are themselves in 17 evidence." 18 So that is what the Court said; I believe to the jury, 19 although the transcript -- the trial transcript does not 20 explicitly indicate that any portion of 1034X is in evidence, 21 although that is what the Court said. So the government's 22 view, as long as no defendant has any issue with it, is that 23 its submission -- 24 THE COURT: I'm not sure what distinction you're 25 drawing between what I said and what I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6790 4a5esat1 1 MS. BAKER: No, it's a matter of the notations that 2 the court reporter is making in the transcript. In other 3 words, usually it would say in parentheses that an exhibit is 4 received or a portion is received, and it doesn't say that for 5 this exhibit. 6 THE COURT: Thank you. All right. Let's bring in the 7 jury. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6791 4a5esat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. Good 3 to see you all. And, again, I appreciate your indulgence on 4 letting us deal with various issues first before you come in. 5 Good to see you all. 6 All right. Mr. Dember. 7 MR. DEMBER: Your Honor, with your permission, we're 8 going to continue reading from Exhibit 2666, resuming on the 9 top of page eight. May we display that for the jury, your 10 Honor. 11 THE COURT: Yes. 12 MR. DEMBER: Your Honor, this is the exhibit with a 13 limiting instruction. May I proceed. 14 THE COURT: Yes. 15 MR. DEMBER: Haggag interview. 16 After hearing the testimony in this case, the parties 17 were permitted to submit additional argument and to make 18 further offer of proof. The INS submitted an affidavit from 19 New York City Police Department Detective Thomas F. Corrigan. 20 Attached to Detective Corrigan's affidavit is a five-page 21 summary of an interview with Abdo Rahman Haggag. The affidavit 22 has been heavily redacted to preserve the privacy of persons 23 other than the respondent. Detective Corrigan offers no 24 opinion on the credibility of Mr. Haggag. 25 Detective Corrigan explained that Mr. Haggag is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6792 4a5esat1 1 former confidant of Sheikh Rahman and previously testified in 2 the federal prosecution against Sheikh Rahman and others. 3 Haggag's interview discloses that an unnamed person had argued 4 with the respondent over respondent's management of the Abu 5 Bakr mosque. Further, the interview included a description of 6 a meeting at Sheikh Rahman's apartment involving seven people, 7 including Haggag and the respondent. At that meeting hijacking 8 an airplane was discussed. However, talk of hijacking was 9 terminated "as hijackings for the most part are unsuccessful." 10 Finally, Haggag indicated that he was unaware of any of 11 al-Gama'a's contacts at "the airport." 12 The offered evidence is too ambiguous and too 13 irrelevant to have much importance in these proceedings. The 14 fact that Mr. Haggag is aware of an argument between the 15 respondent and another person is simply insignificant. Even 16 more insignificant is the statement that Mr. Haggag is unaware 17 of al-Gama'a's contacts at the airport. 18 The portion of the interview describing a meeting at 19 Sheikh Rahman's apartment is curious. Although it contains an 20 ominous reference to airplane hijacking, it seems that the idea 21 was completely rejected by those assembled. Although the INS 22 apparently offers the document to support its claim that the 23 respondent is a danger to the security of the US, the document 24 appears to be mildly contradictory to that claim. According to 25 the offered document, the respondent was present when the use SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6793 4a5esat1 1 of violence was thoroughly rejected. Although the document 2 states that the reason for rejecting the hijacking idea was its 3 unfeasibility, no alternative operations were proposed. The 4 most that could be made from this document is that some 5 irresponsible comments about airplane hijacking were made and 6 the idea was rejected. There certainly were no objective steps 7 taken in furtherance of any plan to hijack an airplane. This 8 incident cannot be seen as any form of direct or indirect 9 threat to the security of this country. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6794 4A5MSAT2 1 The respondent has countered the government's offer of 2 proof with portions of a transcript of Mr. Haggag's testimony 3 at Sheikh Rahman's trial. The transcript shows clearly that 4 Mr. Haggag agreed to burn down a restaurant for $3,000. He 5 actually set fire to the restaurant which did in fact burn down 6 (respondent's post hearing brief. Attachment D, transcript 7 pages 9871-9873) 8 District court indictment. 9 The INS introduced a copy of an indictment against the 10 respondent which is in the record as Exhibit R-6s. The 11 indictment was filed in the U.S. District Court for the 12 Southern District of New York on December 4, 1998 (98 Cr. 13 1397). By this indictment, the respondent is accused of making 14 a false application under the Special Agricultural Worker (SAW) 15 provisions of the Immigration and Nationality Act, 8 U.S.C. 16 1160 (INA Section 210). The respondent is accused of 17 submitting a certification containing false statements of fact 18 as well as submitting a false affidavit of employment. 19 Subsequent to the testimony in this case, the INS informed the 20 Court that on June 8, 1999, the respondent was found guilty of 21 violating 18 U.S.C. 1426(b). 22 Footnote 5. 23 This offense may qualify as an aggravated felony if 24 the respondent is sentenced to at least 12 months. INA section 25 101(a)(43(P). If that were the case, the respondent would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6795 4A5MSAT2 1 ineligible for asylum. 8 CFR 208.13(c)(2)(i)(D)(1999). He 2 would also be presumed ineligible for withholding of 3 deportation. 8 CFR 208.16(c)(2)(1999) referring to prior INA 4 section 243(h)(2). See matter of Q-T-M-T, Int. decision, 3300 5 (BIA 1996). However, because the respondent has not been 6 sentenced, the offense does not now qualify as an aggravated 7 felony and it does not make the respondent presently ineligible 8 for the relief he requests. 9 Back to the text. 10 The offense carries a maximum penalty of five years in 11 prison and a fine. The Court was informed that sentencing was 12 scheduled for 7, 1999. 13 In its decision of May 5, 1997, this Court discussed 14 the significance of respondent's application under the SAW 15 provisions. The respondent had claimed the Fifth Amendment 16 privilege against self-incrimination concerning certain 17 questions about his manner of entry. Inasmuch as it was clear 18 that the respondent could not have qualified under the SAW 19 program, this court took into consideration the possibility 20 that "the respondent obtained counterfeit documents or obtained 21 immigration status by fraud or mistake." The failure to 22 explain this situation was viewed by the Court as "a 23 substantial failure of proof with respect to the respondent's 24 requests for discretionary relief." (Decision, page 6). 25 The recent guilty verdict is consistent with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6796 4A5MSAT2 1 court's earlier assessment of the respondent's SAW application. 2 The fraudulent nature of respondent's SAW application was 3 assumed by the court in its evaluation of respondent's 4 credibility and his suitability for a favorable exercise of 5 discretion. The substantial favorable factors in respondent's 6 case were balanced against the highly negative assumption that 7 "the respondent knowingly submitted false documents and made 8 material misrepresentations in order to gain entry into this 9 country." (Decision, pages 17-18). The recent verdict is based 10 on an indictment that describes conduct already assumed by this 11 court to have occurred. Thus, despite the indictment and 12 guilty verdict, this court's prior analysis of respondent's 13 credibility and his suitability for discretionary relief will 14 not be changed. 15 Classified information. 16 As discussed in the court's May 5, 1997 decision, the 17 immigration court is authorized by regulation to receive 18 classified information in camera in connection with 19 applications for asylum and withholding of removal. When such 20 evidence is received, the respondent must be notified and the 21 agency which provided the information "may provide an 22 unclassified summary of the information" to the respondent. 23 "The summary should be as detailed as possible, in order that 24 the applicant may have an opportunity to offer opposing 25 evidence." 8 CFR 240.11(c)(3)(IV)(1999). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6797 4A5MSAT2 1 When this case was initially heard by the immigration 2 court in 1997, the unclassified summary of the information 3 consisted solely of pedigree information and the brief 4 statement that the evidence included "information concerning 5 respondent's association with a known terrorist organization." 6 The court concluded that this summary was largely useless. 7 While the matter was pending on appeal to the Board of 8 Immigration Appeals, the INS made significant additional 9 disclosure of the evidence presented in camera. In light of 10 the expanded disclosure, the board deemed it appropriate for 11 the matter to be remanded to the immigration court to allow the 12 respondent an opportunity to respond to the additional 13 unclassified information. Additionally, the board instructed 14 the immigration judge to request reexamination by the INS of 15 the classified information "to assure that the unclassified 16 summary of information provided to the respondent is as 17 complete as possible." (BIA decision, page 2). 18 While the matter was on remand the INS presented 19 additional classified information in camera and ex parte. 20 Additionally, the service submitted all of the classified 21 material for "declassification review." The result of this 22 effort was a significant increase in disclosure. 23 Footnote 6. 24 Although the regulation refers to "unclassified 25 summary," that term is not defined. In this case, most of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6798 4A5MSAT2 1 material provided to respondent was "declassified material." 2 Most of the declassified materials were redacted versions of 3 documents or verbatim transcripts. However, some declassified 4 material took the form of an "unclassified summary," apparently 5 because the original material was an oral presentation which 6 was not recorded. See Exhibit R-2-3. 7 Back to the text. 8 Dozens of pages of previously classified material were 9 disclosed to the respondent. The Court expresses its thanks to 10 the INS attorneys who worked on this matter to secure the 11 declassification reviews. I believe that the INS has now done 12 its best to secure disclosure which "is as complete as 13 possible" given the time constraints inherent in a case 14 involving a detained respondent. As a result of the expanded 15 disclosure, the respondent was able to present a more focused 16 defense to the allegation that he is a danger to the security 17 of the United States. 18 Armed with a better understanding of the government's 19 case, the respondent was successful in rebutting most of the 20 factual allegations underlying the charge that he is a danger 21 to the security of the United States. Although the respondent 22 was unable to divine all of the evidence presented in secret, 23 the more focused presentation at the remanded proceeding was 24 useful to the Court in formulating questions and identifying 25 areas of concern regarding the classified information. As set SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6799 4A5MSAT2 1 forth in the classified attachment -- 2 Footnote 7. 3 After classification review of this document, it was 4 determined that nearly all of the information in this 5 attachment should be considered unclassified at the present 6 time. A redacted version of this attachment should be 7 available through Freedom of Information Act procedures. 8 Back to the text. 9 As set forth in the classified attachment, the 10 evidence presented in camera can no longer be viewed as 11 sufficiently reliable to support a finding that the respondent 12 is a danger to the United States. 13 A persistent concern of the court was the reason for 14 classification of much of the secret evidence. It appears that 15 some of the classified information could be gathered from 16 nonconfidential sources. If the information could be presented 17 in open court as coming from an unclassified source, the 18 respondent would be able to confront the evidence against him. 19 This is certainly a desirable feature of any court proceeding. 20 Indeed, the Court is concerned about the possibility for abuse 21 in this area. Imagine, for example, an agency which has two 22 sources of evidence of a particular fact. One source is 23 classified and the other source is public. If the agency 24 chooses to present the information through the public source, 25 the respondent will have an opportunity to confront the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6800 4A5MSAT2 1 evidence. However, if the agency chooses to present the 2 evidence through a classified source, the evidence could remain 3 unassailable. Imagine further the situation where an agency 4 has classified information of a certain fact, but does not yet 5 have a public source for that fact. If the agency knows it can 6 present the classified information in camera, what is the 7 incentive to spend investigatory resources on developing a 8 public source for that evidence? 9 In the instant case, the specific reasons for 10 classifying the information remained generally unstated. The 11 INS commissioner's determination which accompanies the 12 classified information provides only a pro forma justification 13 for the classification: "I have determined that this 14 information is relevant to the present case and was provided by 15 another agency which had classified it pursuant to Executive 16 Order 12958 as requiring protection from unauthorized 17 disclosure in the interest of national security." (Exhibit R-3, 18 citation omitted). As this case vividly demonstrates, much 19 classified information bearing commissioner's determination can 20 be "declassified" if there is the will to do so. Most of the 21 court's questions regarding the reasons for classifying certain 22 evidence were answered with simple "boilerplate" phrases, 23 denial of knowledge or denial of authority to discuss the 24 matter. The court does not ascribe any improper motives to the 25 agency's reluctance to discuss its inner workings. Yet, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6801 4A5MSAT2 1 possibilities for abuse, albeit inadvertent, are manifest. 2 Accordingly, where the Court has determined that there are no 3 expressed and no apparent reasons for classification of a 4 particular piece of evidence, it is fundamentally unfair to 5 present that evidence ex parte. To use such evidence against 6 the respondent would deprive him of due process of law. See 7 Matter of Velasquez, 19I&N, Decision 377,380 (BIA 1986). The 8 matter is discussed more fully in the classified attachment. 9 Footnote 8. 10 This discussion indicates that there is a 11 constitutional basis for rejecting a specific piece of evidence 12 presented by the INS in camera. However, apart from 13 constitutional objection, that specific piece of evidence was 14 also found by the court to be insufficiently reliable to 15 support any factual findings. 16 As a final note on the topic of confidential 17 information, the Court's previous decision touched on two 18 issues which were resolved in the remanded proceedings. The 19 first issue concerned the Court's inability to store classified 20 material which has been resolved with delivery to the court of 21 the appropriate equipment. Accordingly, all materials in this 22 record is now being maintained by the court consistent with the 23 regulatory requirements 8 CFR 3.36(1999). The second issue 24 concerned the possibility of limited security clearances for 25 respondent's attorneys so that they could participate in the in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6802 4A5MSAT2 1 camera proceedings. When the court introduced this topic at a 2 prehearing conference in the remanded proceeding, the 3 respondent's attorneys were not interested in pursuing the 4 matter. They expressed the general opinion that such procedure 5 would be unworkable. There would be an unbearable tension 6 between the attorneys' need to communicate with their client 7 and the attorneys' promise not to disclose the classified 8 information to anyone without the appropriate security 9 clearance. 10 Withholding of deportation-convention against torture. 11 By letter dated April 15, 1999, the respondent 12 requested the immigration court to consider his application 13 under the Convention Against Torture ("CAT"). That application 14 had originally been filed with the district director in June of 15 1997 when the immigration courts did not have jurisdiction over 16 CAT claims. See matter of H-M-V, interim decision 3365 (BIA 17 1998). However, a recent regulatory change has assigned to the 18 immigration courts jurisdiction over CAT claims, 64 FR 8478 19 (February 19, 1999). 20 Under the interim regulations, the immigration court 21 is to decide whether the respondent has met his burden of proof 22 "to establish that it is more likely than not that he or she 23 would be tortured if removed to the proposed country of 24 removal." 8 CFR 208.16(c)(1). This decision is not difficult 25 for this court to make at this time. The court has previously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6803 4A5MSAT2 1 found that the evidence in this case shows that the 2 "respondent's association with Sheikh Rahman will result in his 3 detention and will likely result in his torture if he is 4 returned to Egypt." (Decision, page 16). Thus, the court has 5 already made an essential factual finding that establishes the 6 respondent's eligibility for the relief of withholding of 7 deportation under the CAT. There was no substantial evidence 8 adduced on remand which would cause the Court to reconsider 9 this finding. Indeed, the testimony of witness Neil Hicks 10 convincingly shows the human rights situation in Egypt remains 11 essentially unchanged. "There has been no improvement in such 12 basic areas as the right to a fair trial, the right not to be 13 tortured, and even the right not to be extra-judicially killed. 14 The State Security Intelligence Service operates with impunity 15 for its disregard of the rights of its citizens suspected of 16 political opposition to the government." (Exhibit R-8, page 1). 17 Accordingly, the court finds the respondent is eligible for the 18 relief of withholding of deportation under the Convention 19 Against Torture. 20 Asylum discretion. 21 In its posthearing memorandum, the service correctly 22 points out that the Court must deny asylum and withholding of 23 deportation if there are reasonable grounds for regarding 24 respondent as a danger to the security of the United States. 25 Footnote 9. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6804 4A5MSAT2 1 The CAT, however, does not exclude such persons from 2 relief. If the respondent were found ineligible for asylum and 3 "straight" withholding, he would still be eligible for 4 "deferral of removal" under the interim regulations 8 CFR 5 208.17 (1999). In that case, although the respondent could not 6 be deported to Egypt, the INS would not be required to release 7 the respondent and could keep him in custody indefinitely. 8 Back to the text. 9 The service observes that the term "danger" is not 10 expressly modified in the statute. Accordingly, the service 11 argues that this disqualification provision should apply 12 regardless of the degree of danger which the respondent poses. 13 The service believes that "any" degree of danger is sufficient 14 to trigger disqualification. Under this reading of the 15 statute, an alien could be denied asylum upon a finding that he 16 poses a "minimal" degree of danger, a "slight" degree of danger 17 or perhaps even if he is regarded as a "possible" danger to the 18 United States. 19 The service's position is made even more clear in its 20 discussion of the issue of discretion. An asylum application 21 may be denied in the exercise of discretion and the service 22 urges the Court to deny this respondent a favorable exercise of 23 discretion because there are national security concerns present 24 in this case. In the service's opinion, where evidence 25 "suggests" that the respondent is a danger to national SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6805 4A5MSAT2 1 security, a grant of discretionary relief is "unthinkable." 2 (INS memorandum, pages 34-35). Following the service's 3 argument, asylum should be denied where there is a suggestion 4 of minimal danger to the security of the United States. 5 Further, the service argues that the quantum of 6 evidence needed to create the suggestion of danger is "slight." 7 The government need only provide enough evidence to show an 8 "articulable suspicion" of danger (INS memorandum, page 35). 9 And the INS believes that it is appropriate for the immigration 10 court "to defer to the experience and expertise of government 11 agents charged with protecting national security." (INS 12 memorandum, page 36). 13 Distilled to its essence, the INS position is that the 14 Court should deny asylum where law enforcement agents suggest 15 that the respondent may pose at least some minimal risk of 16 danger to the security of the United States. That suggestion 17 may be communicated without the opportunity of 18 cross-examination by the respondent and, as shown in the 19 classified attachment, without answering the court's questions 20 concerning the source of the information. Simply stating the 21 INS position in this way is to reject it. The INS seems to be 22 asking the Court to abdicate its statutory and regulatory duty 23 to decide the respondent's asylum claim based on the evidence 24 presented at the hearing. The court will respect the expertise 25 of law enforcement personnel and their dedication to protecting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6806 4A5MSAT2 1 our country. But the court will not defer to their credibility 2 findings, their weighing of the evidence or their 3 interpretations of law. When a case has been assigned to the 4 immigration court, these issues are to be resolved by the court 5 which will make its own findings and conclusions based on the 6 evidence presented. 7 The service analogizes the "reasonable ground" 8 standard to be the "reason to believe" standard developed in 9 the stop and frisk arena. Terry v. Ohio, 392 U.S. 1 (1968) 10 (INS memorandum, page 23). I believe the analogy is 11 appropriate. The court will look at the evidence presented to 12 determine if there is reason to believe the respondent is a 13 danger to the security of the United States. There must be 14 evidence of sufficient quality that the court can believe the 15 respondent is a danger to the United States. 16 THE COURT: The first line is: Service analogizes the 17 reasonable ground standard to the reason to believe. 18 MR. DEMBER: I'm sorry. Although a "suggestion" of 19 danger is insufficient to require denial of asylum, where the 20 evidence "indicates" that a ground of disqualification exists, 21 the burden shifts to the respondent to show by a preponderance 22 of the evidence that the disqualification does not apply. 8 23 CFR 208.13(c)(2)(II). In this case, the classified 24 information, when originally presented, was sufficient to 25 indicate the applicability of the ground of disqualification. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6807 4A5MSAT2 1 Without a useful summary of the classified information 2 presented in the 1997 proceedings, the respondent was unable at 3 that time to meet the preponderance of the evidence standard. 4 However, in the remanded proceedings, the respondent had the 5 benefit of vastly improved disclosure. As set out above, he 6 was able to focus on known areas of concern and was able to 7 successfully rebut most of the evidence, including most of the 8 classified evidence, presented by the service. I conclude, 9 therefore, that the record in this case no longer contains 10 reliable evidence sufficient to regard the respondent as a 11 danger to the security of the nation. 12 As the evidence in this matter does not establish that 13 the respondent is a danger to national security, I conclude 14 that there are not sufficient negative factors in this case to 15 warrant denial of asylum in the exercise of discretion. "The 16 danger of persecution should generally outweigh all but the 17 most egregious of adverse factors." Matter of Pula, 19I&N 18 decision 467,474 (BIA 1987). In the May 5, 1997 decision, the 19 court balanced the positive and negative factors in this case 20 and found that the respondent did merit a favorable exercise of 21 discretion. It appears that since the date of that decision, 22 the discretionary factors have not changed substantially. 23 Although respondent has been found guilty of a crime, which is 24 a powerful negative factor, the court has already generally 25 allowed for the facts which form the basis of the crime. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6808 4A5MSAT2 1 respondent's U.S. citizen children are now two years older, and 2 the respondent has spent two more years in confinement. Both 3 of those facts would militate even more strongly for a 4 favorable exercise of discretion. Additional support for a 5 positive exercise of discretion is found in the regulation at 8 6 CFR 208.16(d)(1999). That provision calls for reconsideration 7 of a discretionary denial of asylum where the alien is to be 8 granted withholding of deportation. The provision applies 9 where the alien has a spouse or children who would be 10 effectively precluded from admission to the United States by a 11 discretionary denial. The provision applies in this case due 12 to respondent's wife having been previously denied 13 asylum/withholding of deportation (See Exhibit R-5-14) and this 14 court's finding that the respondent qualifies for withholding 15 of deportation. 16 The respondent has now been detained for more than 17 three years while the court and counsel wrestle with the issues 18 involved in the use of classified information in a court 19 setting. Although some may believe that this procedure is a 20 valuable tool in fighting terrorism, this tool is unsuited for 21 use in a courtroom. Handling this tool outside the 22 investigative environment has proved to be extremely awkward. 23 Special procedures are required at every step and the 24 proceedings are necessarily protracted. Moreover, despite the 25 professionalism of all counsel appearing in this case, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6809 4A5MSAT2 1 poisonous atmosphere created by secret accusation is impossible 2 to completely eradicate. A recent decision by the U.S. 3 District Court for the Eastern District of Virginia sums up the 4 situation aptly. "The use of secret evidence against a party, 5 evidence that is given to, and relied on, by the U" -- 6 THE COURT: IJ. 7 MR. DEMBER: "IJ and BIA but kept entirely concealed 8 from the party and the party's counsel is an obnoxious 9 practice, so unfair that in any ordinary litigation context, 10 its unconstitutionality is manifest." Haddam v. Reno F.Supp.2d 11 1999 WL 258420 (E.D. Virginia, Ellis J.). 12 Accordingly, for the reasons set forth in the court's 13 decision on May 5, 1997, as modified and expressed herein and 14 in the classified attachment hereto, the previous order of this 15 court is withdrawn and the following order shall be entered. 16 Order. 17 The respondent's application for withholding of 18 deportation to Egypt is granted, and it is further ordered that 19 the respondent's application for asylum in the United States is 20 granted. 21 At the bottom Donn Livingston, Immigration Judge, and 22 purports to be the signature of Judge Livingston. 23 Next page. United States Department of Justice, 24 Executive Office for Immigration Review, Immigration Court, 205 25 Varrick Street, New York, New York. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6810 4A5MSAT2 1 THE COURT: 201. 2 MR. DEMBER: File No. A90 674 238, July 30, 1999. 3 In the matter of Nasser Ahmed, a/k/a Nasser Ahmed El 4 Hommosany, respondent, in bond redetermination proceedings. 5 Louis M. Bograd, American Civil Liberties Union 6 Foundation, Washington D.C.; David Cole, Georgetown University 7 Law Center, Washington D.C.; Abdeen Jabara, Lawrence Schilling, 8 Lynne Stewart, New York, New York, for respondent. 9 Suzanne McGregor, Assistant Regional Counsel, Anne E. 10 Gannon, Assistant District Counsel; John Mulrooney, Assistant 11 District Counsel, for the Immigration and Naturalization 12 Service. 13 Decision on motion to reconsider custody status. 14 Previously this court has ruled that the respondent 15 may be detained by the Immigration and Naturalization Service 16 without bond because he was determined to be a threat to 17 national security and likely to abscond. The decision to 18 continue detention without bond was affirmed by the Board of 19 Immigration Appeals on the national security ground. 20 Respondent's motion for a subsequent bond redetermination was 21 denied. 22 In connection with remanded deportation proceedings, 23 the respondent has renewed his request for release from 24 custody. Matter of Uluocha, 20 I&N decision 133,134 (BIA 25 1989). Following remanded deportation proceedings, the court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6811 4A5MSAT2 1 has determined that the respondent can no longer be regarded as 2 a danger to the security of the United States. Respondent has 3 been granted asylum and withholding of removal, and so he can 4 no longer be considered likely to abscond. Accordingly, there 5 is no longer any reason to maintain the respondent in 6 Immigration and Naturalization Service custody. 7 Order. 8 The respondent's request for reconsideration of his 9 custody status is granted and he is ordered released from 10 Immigration and Naturalization Service custody. 11 Donn Livingston, Immigration Judge, and the signature 12 of Donn Livingston. 13 Your Honor, at this time the government requests 14 permission to display and read to the jury Government Exhibit 15 2620, which is in evidence. It requires an instruction, your 16 Honor. 17 THE COURT: Ladies and gentlemen, this exhibit is a 18 newspaper article. It is received not for the truth of any of 19 the matters asserted, but solely with respect to the knowledge, 20 intent, and state of mind of Ms. Stewart. 21 MR. DEMBER: Your Honor, on top it reads: By Judith 22 Miller and Neil MacFarquhar. 23 The portion begins as follows: Clinton administration 24 officials are also reported to be looking closely at a 25 videotape broadcast on September 21 by Al-Jazeera, an Arabic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6812 4A5MSAT2 1 satellite television network based in Qatar. On the tape, 2 Mr. Bin Laden and Ayman al-Zawahari. Mr. Bin Laden's top 3 deputy for military operations condemned the United States' 4 presence in the Middle East and threatened a "holy war." 5 American military and Middle Eastern officials said 6 they believed that the tape was recorded "some time between 7 March and May," although the Taliban government in Afghanistan, 8 under pressure from the United States to hand over Mr. Bin 9 Laden, has asserted that the tape was made four or five years 10 ago. 11 On the tape Mr. Zawahari said: "The time has come for 12 us and for all mujahedeen to confront this heathen, tyrannical 13 power which has trampled upon our holy sites and occupied our 14 two holy mosques." 15 The reference was to Islam's most sacred shrines in 16 Mecca and Medina Saudi Arabia. "These heathens have spread 17 their forces in Egypt, Yemen and the gulf, killing our 18 children, persecuting our scholars, soiling our holy shrines 19 and stealing our wealth, Mr. Zawahari said. 20 The tape also showed Mr. Bin Laden preaching for a 21 holy war. He -- a number of these words on the end are cut off 22 of this particular exhibit. His followers should do all they 23 something to establish Islamic law in word M-U-S something 24 countries and "to expel the Jews -- the letter A follows -- the 25 Christians from the S-A-C-R places, and to endeavor to -- the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6813 4A5MSAT2 1 word R-E-L-E-A and the word cut off, our ulema from the 2 United -- appears to be states, from Egypt, from Riyadh, and it 3 appears to be from all holy Islamic lands." 4 Ali al-Kaadi, acting head of N-E -- what looks like a 5 W gathering for the network and the letter T there, showed the 6 tape, said in an inter-- appears to be interview today that the 7 tape has been -- and the word mail -- to the network with no 8 return, what appears to be address. A title on the video says 9 it -- the letter W, produced by the Jihad media, S-E-N-S, in 10 Afghanistan which Middle -- what appears to be Eastern 11 officials said was a D-U-B-I-O name intended to disguise what 12 appears to be identities. 13 Middle Easterns and what appears to be American 14 sources said they believed that -- the letter T sermons were 15 delivered at what appears to be meeting of militant Islamic 16 Groups to what appears to be discuss ways to free Sheikh Omar, 17 what appears to be Abdel Rahman. Mr. Rahman is the -- what 18 appears to be blind Egyptian cleric who is serving a -- appears 19 to be life sentence, in a federal penitentiary, the United 20 States for his role in, then the letter T, World Trade Center 21 bombing in 199. Then it is cut off. 22 At one point the tape focuses on hand-painted banner 23 on the wall, what appears that says: "The release of the what 24 appear to be prisoner Omar Abdel Rahman is a duty to, then the 25 letter A, those capable of it." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6814 4A5MSAT2 1 Among those at the meeting, what appears to be was, 2 Mr. Rahman's son, Assadullah, then what appears to be the word 3 who, is heard off camera calling, appears to be the word for 4 armed action to release his father, then the letter O, 5 according to one account, to "what appears to be the word shed 6 blood." Until his father is what appears to be released from 7 prison. 8 Your Honor, at this time may we display and read to 9 the jury what is Government Exhibit 2671? 10 THE COURT: Yes. Ladies and gentlemen, this is also a 11 newspaper article and it is subject to the same instruction 12 that it is not received for the truth of any of the matters 13 asserted but solely with respect to the knowledge, intent, and 14 state of mind of Ms. Stewart. 15 MR. DEMBER: I will start reading from the top. In 16 the left-hand corner it is what appears to be No. 1 and on top 17 it reads, Al-Hayat, 10/26/98. 18 THE COURT: Before you begin again, it is Government 19 Exhibit 2671 in evidence, right? 20 MR. DEMBER: Yes, your Honor, it is. 21 THE COURT: Go ahead. You can start from the top. 22 MR. DEMBER: It reads Al-Hayat 10/26/98. He assured 23 the "offer" to stop violence is being under study. Rifa'i Taha 24 to Al-Hayat, no change in the Islamic Group strategies. 25 Cairo, Mohammed Salah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6815 4A5MSAT2 1 Rifa'i Taha (Abu Yasir) member of the "Islamic Group", 2 shura counsel, has but an end to the reactions caused by the 3 "Islamic Group" leaders Dr. Omar Abdel Rahman's declaration 4 from his prison in the United States and was explained as 5 "change" that prohibited in organization strategies (ranked as 6 an Islamist -- let me start again. The next line is Al-Hayat 7 has interviewed Taha and then there is a caret there indicating 8 the above should be put in. (Ranked as an Islamist live 9 outside Egypt) yesterday over the phone he announce (declared) 10 that the "Islamic Group" shura counsel is still studying 11 initiated the "offer" to stop violence which was by the 12 historical leaders of the organization in July of last year. 13 He added "It is still under study by the Islamic 14 Group's shura counsel. And he said "We still studying the 15 offer. And the more there is a freedom on the ground, that 16 will find a reception by us. Originally, we want to call for 17 Allah. If that achieved by any means, we welcome it." But he 18 added "if we have prevented from our call what we will do 19 except to defend ourselves." What appears to be the word the 20 or he consider the "Gamaat" along the left-hand side is the 21 words less of. It then starts "will not accept the less of -- 22 appears to be a word in a different language. And what we want 23 is to open "field of Da'Awa (call to Allah) in front of us. 24 Taha, who was sentenced to death in absentia, from a 25 military court in a case known by the Afghan returnee" in 1998, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6816 4A5MSAT2 1 has discussed the conflict around Abdel Rahman's declaration 2 and what was said about his call to unite all the Muslim groups 3 and factions to "form and peaceful international Islamic 4 coalition." 5 He clarified that the declaration did not conclude 6 what reflect that point, "but that came in a message directed 7 to the lawyer when Muntasir al-Zayyat attached to the 8 declaration." He added "I have followed up on the message and 9 the declaration and it was clear that the Sheikh has declared 10 in the message his acceptance to Muntasir al-Zayyat, invitation 11 to form a coalition. And the Sheikh was not the one who start 12 to call for that. In the same message he also call to form an 13 international Islamic court to look into the differences 14 between the Islamic countries. I believe that the Sheikh 15 actually wanted to sponsor that subject, not mentioning that 16 has led to meanings that he did not intend or meant. Excuse 17 me. 18 Taha, who left Egypt in 1988, mentioned that the 19 message and the declaration meant to "assure an Islamic 20 meaning, to call for Allah, enjoy the good and forbid the 21 evil." He also mentioned the Sheikh opinion regarding the 22 Islamic coalition subject which was initiated by al-Zayyat to 23 face the dangers against Islam. 24 He spoked to Al-Hayat about the views that concluded 25 that then is signer or signs of changes in the Islamic Group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6817 4A5MSAT2 1 strategies through the Sheikh declaration and message. 2 And he assured that the Gamaat "did not change its 3 strategies or its "call" following the "self enjoining of the 4 good and forbidding the evil and Jihad." 5 Your Honor, the final exhibit we intend to present at 6 this time, your Honor, is Government Exhibit 2634. There is 7 also an instruction required for this exhibit. 8 THE COURT: Ladies and gentlemen, this exhibit is not 9 offered for the truth of any of the statements by Sheikh Omar 10 Abdel Rahman that appear in this exhibit. It is not offered 11 and received for that purpose. 12 MR. DEMBER: Your Honor, before I put the pages up on 13 of this exhibit on the Elmo, could I simply hold it up for the 14 jury so they can see what it is? 15 THE COURT: Yes. 16 MR. DEMBER: Your Honor, at this time, I will simply 17 display the pages that are in this notebook that have writing 18 on them for the jury. This is the front page, actually. 19 MR. TIGAR: May I confer with Mr. Dember, your Honor? 20 THE COURT: Yes. 21 MR. DEMBER: Thank you, your Honor. 22 THE COURT: Ladies and gentlemen, we will take our 23 mid-morning break. Please remember my continuing instructions. 24 Don't talk about the case at all, please. Always remember to 25 keep an open mind until you have heard all of the evidence and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6818 4A5MSAT2 1 I have instructed you on the law. 2 All rise, please, and the jurors will follow 3 Mr. Fletcher to the jury room. 4 (Jury not present) 5 THE COURT: See you shortly. 6 (Recess) 7 (Pages 6819-6820 SEALED by order of the Court) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6821 4a5esat3 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, the exchange at side bar will 3 be sealed? 4 THE COURT: If the parties would prefer, that's fine. 5 I'll seal it. I don't recall if I sealed a similar one. 6 MR. RUHNKE: Your Honor, I think it's probably the 7 government who would want it sealed or not. We're indifferent 8 to whether it's sealed or not. 9 MR. TIGAR: Your Honor -- 10 MR. DEMBER: Your Honor, we're not requesting -- I'm 11 sorry. 12 MR. TIGAR: Your Honor, the transcript identifies the 13 juror by seat number. 14 THE COURT: That's fine, I'll seal it. I'll seal it. 15 Thank you. 16 With respect -- I have the list that Mr. Morvillo gave 17 me with respect to the exhibits that are coming up, and I -- 18 when the -- I just want to make sure that I understand what the 19 parties have given me. It says, if there is nothing in the 20 column that says defendants offered against, I -- 21 MR. MORVILLO: Your Honor, my understanding, at least 22 my intent is that that only applies to translations. 23 THE COURT: Oh, OK. And if the list says Yousry, the 24 only instruction is this exhibit is offered only against 25 Mr. Yousry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6822 4a5esat3 1 MR. MORVILLO: That's correct, your Honor. And if it 2 also says not for the truth, with respect to Mr. Yousry, for 3 example, like Government Exhibit 2406-1 -- 4 THE COURT: Keep your voice up. 5 MR. MORVILLO: Which is Government Exhibit 2406-1, 6 that's a newspaper article, it would be offered only against 7 Mr. Yousry and not for the truth of any of the matters asserted 8 in the article. 9 THE COURT: And with respect to newspaper articles, I 10 usually say that it's not only not offered for any of the truth 11 of the matters asserted but it's offered solely with respect to 12 the knowledge, intent and state of mind of Mr. Yousry. 13 MR. MORVILLO: That's the government's view. 14 MR. RUHNKE: That's our position, your Honor. 15 Just one clarification: On Exhibit 2421-2, which is 16 on the first page, this is described as a large envelope 17 labeled Luxor incident, in quotes. The agreement was as part 18 of negotiations the government is not going to offer the 19 contents of the envelope, but there is a stipulation that 20 simply indicates that there was such an envelope containing 21 large remarks about Luxor which provided or stated in part in 22 the stipulation. When I first looked at it, I was wondering 23 why it was not offered for -- appeared to be offered for the 24 truth, and I've forgotten the stipulation so I wanted to bring 25 that to your Honor's attention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6823 4a5esat3 1 THE COURT: Well, the only instruction it's offered 2 solely against -- it is only the envelope that's being offered 3 and only against Mr. Yousry, not its contents. 4 MR. RUHNKE: That's correct. 5 MR. MORVILLO: Yes, your Honor. And I believe our 6 agreement is I would just publish the envelope to the jury by 7 holding it up at the time we reach this exhibit. 8 THE COURT: And if the exhibit -- if the list says 9 Mr. Yousry, Mr. Sattar, similarly that exhibit is offered only 10 against Mr. Yousry and Mr. Sattar, it's not offered for the 11 truth of any of the matters asserted. It's offered only with 12 respect to the knowledge, intent and state of mind, that of 13 Mr. Yousry and Mr. Sattar? 14 MR. MORVILLO: Yes, your Honor, that's the requested 15 instruction. 16 There's going to come a point in time, your Honor, 17 when we get to some newspaper articles. And I think the first 18 one would be the first exhibit on page four of my list, which 19 is 2405-2, where we are offering the handwriting for the truth 20 of the matter asserted but not the contents of the article. 21 And that would apply with respect to any articles on which 22 there is that handwriting. 23 MR. RUHNKE: We are in agreement with that, your 24 Honor. You'll see that in context what they tend to be is 25 where somebody has written approved by Mr. Jabara, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6824 4a5esat3 1 government wants to offer or, in fact, that it was approved by 2 Mr. Jabara, we're happy to have that done. 3 THE COURT: So the instruction would be the contents 4 of the newspaper article are not offered for the truth of the 5 matters asserted? 6 MR. MORVILLO: Yes, your Honor. 7 MR. PAUL: Your Honor, may I ask for a proffer from 8 the government with regard to some of these exhibits that are 9 being introduced against Mr. Sattar. Specifically, I'm 10 referring to 2415-6, which I believe is being introduced 11 against all defendants, and there's a translation for that. 12 And then 2415-5, which is being introduced against Mr. Yousry 13 and Mr. Sattar. 14 MR. MORVILLO: Your Honor, the 2415-6 are handwritten 15 notes in Arabic and English taken by Mr. Yousry during the 16 March 1999 prison visit, at least that's what it appears to be, 17 and would be offered as statements of coconspirators in 18 furtherance of the conspiracy charged in Count 1. And, 19 therefore, they would be admissible against all of the 20 defendants. 21 THE COURT: Which one are you -- 22 MR. MORVILLO: 2415-6. 23 With respect to 2415-5, your Honor, there is a -- it's 24 the government's position that that document was also seen by 25 Mr. Sattar as reflected in a note on the cover of the document SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6825 4a5esat3 1 from Mr. Jabara to Mr. Yousry saying that Ahmed S prepared a 2 translation of this, we're asking you to prepare another one. 3 I have the exhibit, I can read it more precisely. 4 THE COURT: All right. 5 MR. PAUL: I didn't see the note, your Honor. 6 THE COURT: Mr. Paul, do you want to see it? 7 MR. PAUL: I can see it now. 8 THE COURT: Anything else before we bring the jury in? 9 OK, let's bring in the jury. 10 Should I be following this from the Yousry notebook of 11 exhibits? 12 MR. MORVILLO: That does not precede -- the notebook 13 of exhibits, I believe, is in order of exhibit but not in order 14 of presentation. 15 THE COURT: But they're all in there? 16 MR. MORVILLO: Yes, they are. 17 THE COURT: Because I was given another folder with 18 various versions of 2312. 19 MR. MORVILLO: Your Honor, my -- I'm informed that 20 those are additions to what is in your notebook. 21 THE COURT: Thank you. 22 MR. MORVILLO: Your Honor, if you would like us to 23 insert the material in the book, we're happy to do it. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6826 4a5esat3 1 (In open court; jury present) 2 THE COURT: Yes. 3 MR. MORVILLO: May I proceed to the lecturn, your 4 Honor. 5 THE COURT: Yes. 6 MR. MORVILLO: Your Honor, at this time the government 7 would request permission to publish to the jury some of the 8 materials from the Yousry search. And I would like to read 9 portions of a stipulation, Government Exhibit 2400S, which I 10 would offer into evidence at this time. 11 THE COURT: All right. Government Exhibit 2400S 12 received in evidence. 13 (Government's Exhibit 2400S received in evidence) 14 MR. MORVILLO: May I place it on the Elmo and publish 15 it to the jury, your Honor. 16 THE COURT: Yes. 17 MR. MORVILLO: The parties hereby stipulate and agree 18 that, if called as witnesses at trial, qualified, expert 19 Arabic-to-English translators employed by the Federal Bureau of 20 Investigation would testify that, in their opinions: 21 One, Government Exhibits 2300T through 2499T are true 22 and accurate translations from Arabic into English of the 23 Arabic documents with corresponding Government Exhibit numbers. 24 Thus, for instance, a translator would testify that in his or 25 her expert opinion, Government Exhibit 2312-25T is a true and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6827 4a5esat3 1 accurate translation from Arabic into English of Government 2 Exhibit 2312-25. 3 Two, Government Exhibit 2405-8 is identical to 4 Government Exhibit 2000, as to which Government Exhibit 2000T 5 is a true and accurate translation. 6 Your Honor, at this time the government would offer 7 into evidence Government Exhibit 2405-8. 8 THE COURT: All right. Government Exhibit 2405-8 is 9 received in evidence. 10 (Government's Exhibit 2405-8 received in evidence) 11 THE COURT: Ladies and gentlemen, this is a newspaper 12 article. It is not received for the truth of any of the 13 matters asserted in the article, and it's received solely with 14 respect to the knowledge, intent and state of mind of 15 Mr. Yousry and Mr. Sattar. 16 MR. MORVILLO: And, your Honor, as per agreement with 17 counsel, I'd like to read a portion of Government 18 Exhibit 2300S, which is another stipulation that has been 19 previously read to the jury that corresponds to this exhibit. 20 THE COURT: Sure. Since it's been read to the jury, 21 Government Exhibit 2300S is in evidence, correct? 22 MR. MORVILLO: That's correct, your Honor. 23 THE COURT: All right. 24 MR. MORVILLO: The parties hereby stipulate and agree 25 that the following people would testify as follows if called as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6828 4a5esat3 1 witnesses at trial: 2 Two, Special Agent Kimberly Whittle of the Federal 3 Bureau of Investigation would testify that following the 4 seizure and transportation to the FBI of the seized materials, 5 she took possession of the seized materials and prepared a 6 detailed inventory of the seized materials. 7 Special Agent Whittle would further testify that the 8 seized materials did not leave the secure custody and control 9 of the FBI after April 9, 2002. 10 Special Agent Whittle would further testify that -- 11 and I'm skipping down now to subparagraph B -- Government 12 Exhibits in the 2405 series are from a box identified by 13 Special Agent Monaco as a "white Staples box containing 14 miscellaneous documents" found in the office on the second 15 floor of defendant Yousry's residence at 30-51 84th Street, 16 East Elmhurst, New York, and further identified by Special 17 Agent Monaco as having been marked by her as "box No. 5." 18 May I display, your Honor, Government Exhibit 2405-8 19 to the jury. 20 THE COURT: Yes. 21 MR. MORVILLO: Your Honor, now may I read Government 22 Exhibit 2000T to the jury, which as per the stipulation is a 23 translation of Government Exhibit 2000, which is identical to 24 Government Exhibit 2405-8. 25 THE COURT: All right. So Government Exhibit 2000T is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6829 4a5esat3 1 in evidence? 2 MR. MORVILLO: Yes, your Honor. 3 THE COURT: Admitted in evidence. 4 And, ladies and gentlemen, plainly this is a 5 translation. It's subject to the same limiting instruction as 6 the underlying newspaper article. It's not received for the 7 truth of any of the matters asserted in the newspaper article. 8 It's received solely with respect to the knowledge, intent and 9 state of mind of Mr. Yousry and Mr. Sattar. 10 All right. 11 MR. MORVILLO: Reading from the top: Sudan and Taha, 12 G2-3, Government Exhibit 2000-T. Monitor ID: 170. 13 [Thursday 7/6/1995] 14 The secrets of the conspiracy and the gang of Sudan. 15 Five terrorists incubated by Sudan. 16 El-Islambouli, Mustafa Hamza, Othman Al-Siman, Rifa'i 17 Taha and Mustafa Nawawi, the returnees from Afghanistan case, 18 the [Court's] evidence for sentencing [them] to death. 19 The five terrorist leaders who have been incubated by 20 the Turabi regime in Sudan are at large after they were 21 indicted in the 1992 case number 24 of military court. They 22 were sentenced to death in absentia. They alleged that they 23 are leaders of the Islamic thinking, [however Islam] renounces 24 their [terrorists] deeds. 25 "The Events News" [A section in the newspaper] SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6830 4a5esat3 1 exclusively publishes the court's indictment evidence against 2 the five terrorists as it was included in the case file. 3 Mohammed Shawqi El-Islambouli, was sentenced to death 4 based on the admission of accused Sharif Hassan Ahmad Mohammed. 5 [The latter] admitted that he stayed at the home of the accused 6 Mohammed Shawqi El-Islambouli in Peshawar, Pakistan. He 7 [Sharif] overheard his [El-Islambouli] conversation with 8 visitors about Islamic Group, Jihad in Egypt and the 1981 9 events. Following the arrival of [Sharif's] wife El-Islambouli 10 paid [Sharif] 4,000 Pakistani rupees a month. When [Sharif] 11 decided to return to Egypt along with his wife, [El-Islambouli] 12 asked [Sharif] to listen to what the second accused has to say. 13 The second accused, Mustafa Hamza, informed [Sharif] that he 14 wanted to invest in [Sharif's] presence in Egypt, especially 15 that [Sharif] was never apprehended before. [Hamza] provided 16 Sharif with 500 US dollars for personal expenses. The accused 17 Mohammed Shawqi El-Islambouli asked [Sharif] to participate in 18 the military training provided by the Sada camp. 19 [El-Islambouli] planned to find out about [Sharif's] discipline 20 in obeying [orders]. 21 Nasir Ahmad Mohammed Ahmad admitted during 22 interrogation that the accused Mohammed Shawqi El-Islambouli is 23 a member of the Group's leadership in Afghanistan, which 24 included Rafa'i Ahmad Taha and Tala'at Fouad. Issa Basiouni 25 Mohammed Dodge admitted that the accused [El-Islambouli] is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6831 4a5esat3 1 considered one of the top echelon in the group's leadership. 2 Ashraf Ahmad Youssuf waived a videotape "The Group As 3 a Movement and Approach," which comprised the Group's 4 leadership, including Sheikh Mohammed Shawqi El-Islambouli. 5 Mustafa Ahmad Hasan Hamza, a/k/a Abu-Hazim, was 6 sentenced to death based on what the accused Sha'ban Rajab Ali 7 Eid admitted during the interrogation, that the accused Mustafa 8 Hamza, a/k/a Abu-Hazim, met [Sha'ban] in Sudan. He [Hamza] 9 assigned [Sha'ban], once he returns to Egypt, to plan for the 10 assassination of the Interior Minister, and both, the Governors 11 of Souhaj and Daqahleya. [Sha'ban] also admitted that his 12 brother Usama informed him that the accused Mustafa Hamza 13 called [Usama] over to meet an individual at Ain-Shams Metro 14 station. This individual handed [Usama] a bag of weapons, 15 explosives and ammunition. Later, [the bag] was seized at 16 their [Sha'ban and Usama] brother's residence. 17 The accused Mohammad Sa'ad Mohammad Abdu admitted 18 during interrogation that the accused Mustafa Hamza requested 19 him to work under the command of Sha'ban Rajab and to obey his 20 [Sha'ban] orders. 21 The accused Khilaf Mahmoud Abdel Samie admitted during 22 interrogation that the accused Mustafa Hamza stated that the 23 reason for the return of [Khilaf] Sha'ban Rajab, and Mohammad 24 Saad Mohammad Abdu to Egypt was to carry out the assassinations 25 of public figures, such as the Minister of Interior, Minister SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6832 4a5esat3 1 of Information, the Governor of Souhaj and the Governor of 2 Daqahleya. 3 The accused Hisham Hasan Moursi Ahmad admitted that 4 the accused Mustafa Hamza requested to change his home address 5 [Hisham] in Egypt, and to dodge the surveillance of the 6 security forces because the Group will carry out assassinations 7 in Egypt. 8 Fayez Eid Abdel-Rahman Mohammad admitted during 9 interrogation that the accused Mustafa Hamza handed him 1,500 10 US dollars. He [Hamza] asked [Fayez] to meet an individual 11 that Hamza knows across from the Metro movie theater, and asked 12 him to surrender his passport in Libya. 13 Rifa'i Ahmad Taha, a/k/a Abu Yasir, was sentenced to 14 death based on the admission of the accused Mohammad Sa'ad 15 Mohammad Abdu during the public prosecution questioning. 16 [Rifa'i] agreed to [Sa'ad's] return to Egypt and was asked to 17 rent out his home in Cairo and to work under the command of 18 Sha'ban Rajab Ali Eid. 19 The accused Sha'ban Rajab admitted that he met with 20 the accused Rifa'i Ahmad Taha, who advised him to join Islamic 21 Group. [Sha'ban] agreed to that after he learned that [the 22 Group's] conditions are to heed, obey and not to address 23 irrelevant [issues]. 24 The accused Sharif Hasan Ahmad Mohammad Hasan admitted 25 that he learned from the accused Rafa'i Ahmad Taha that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6833 4a5esat3 1 accused Mustafa Hamza asked him [Sharif] to be a low profile 2 member once he returns to Egypt, and not to talk to anyone 3 unless otherwise instructed by either [Hamza] or the accused 4 Rafa'i Ahmad Taha. 5 Nasir Ahmad Mohammad Ahmad Dakrouri admitted during 6 the public prosecution questioning that Rifa'i Ahmad Taha asked 7 him to study the route and record down any security obstacles 8 that he could face during his travel to Egypt via Libya. He 9 [Rafa'i] informed him that Sha'ban Rajab and two others will 10 meet him [Nasir] in Libya at the International Communications 11 [LS: Probably a name of a business.] and to execute whatever 12 Sha'ban orders. [Rafa'i] told [Nasir] that he depends on him 13 and a few others who have no arrest history. 14 Ashraf Ahmad Youssuf Al-Badawi admitted that the 15 accused [Rafa'i] asked him to track the movements of the Souhaj 16 governor. [Ashraf] watched [Rafa'i] in a videotape talking as 17 one of its leaders about the Islamic Group. 18 Othman Khalid Ibrahim Al-Siman, a/k/a Shihab El-Din, 19 was sentenced to death based on the admission of Sha'ban Rajab 20 Ali Eid that [Othman] was the one who annotated, using a secret 21 ink, the notebook which was found on [Sha'ban]. [Othman] also 22 taught [Sha'ban] how to decipher it. 23 The accused Nasir Ahmad admitted that the accused 24 [Othman] was one of the leaders of the Group whom he spotted in 25 Afghanistan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6834 4a5esat3 1 Hisham Hasan Moursi admitted that he met the accused 2 [Othman] along with Mustafa Hamza in Sanaa. 3 The accused Khilaf Mahmoud Issa admitted that he met 4 with Mustafa Hamza and Othman Khalid in Sudan, where [Mustafa] 5 informed [Khilaf] about assassination operations. 6 Ahmad Mustafa Nawara a/k/a Haitham. 7 Khilaf Mahmoud Abdel Samie admitted during the public 8 prosecution questioning that the accused [Nawara] met him in 9 Pakistan and ordered him to go to Sudan along with Sha'ban 10 Rajab and Mohammad Saad. [Khilaf, in Sudan,] met with Mustafa 11 Hamza and Othman Khalid. [Hamza] informed them of their 12 assassination operations, since they were heading back to 13 Egypt. 14 Tala'at Fouad Talal, a/k/a Abu-Talal, was sentenced to 15 death based on the admission of the accused Sha'ban Rajab that 16 the accused [Tala'at], a/k/a Abu-Talal, was considered one of 17 the prominent leaders of the Group. 18 The accused Nasir Ahmad Mohammad admitted that the 19 accused [Tala'at] was one of the group's expatriate leaders. 20 The accused Ashraf Ahmad Youssuf admitted that the 21 accused [Tala'at] along with Rifa'i Taha were in charge of the 22 Egyptian residence [safe house] in Pakistan. 23 Your Honor, at this time the government would offer 24 into evidence and request permission to publish to the jury 25 Government Exhibit 2406-1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6835 4a5esat3 1 THE COURT: All right. Ladies and gentlemen, 2 Government Exhibit 2406-1 is admitted in evidence. This is a 3 newspaper article. It is not received for the truth of any of 4 the matters asserted in the article, and it's admitted solely 5 with respect to Mr. Yousry. It's admitted solely with respect 6 to the knowledge, intent and state of mind of Mr. Yousry. 7 All right. 8 MR. MORVILLO: Your Honor, I'd also request 9 permission, as per agreement with counsel, to read the relevant 10 portion of Government Exhibit 2300S, which is the stipulation. 11 THE COURT: All right. 12 MR. MORVILLO: Paragraph two, subparagraph C. 13 Government Exhibits in the 2406 series are from a box 14 identified by Special Agent Monaco as a, quote, white Staples 15 box containing miscellaneous documents found in the office on 16 the second floor of defendant Yousry's residence at 30-5,184th 17 Street, East Elmhurst, New York, and further identified by 18 Special Agent Monaco as having been marked by her as box number 19 one. 20 Government Exhibit 2406-1. Egyptian group says it 21 tried to kill Mubarak. In handwriting, NYT, July 8th. 22 By Youssef M. Ibrahim. Jerusalem July 4th. A Muslim 23 militant group battling the Egyptian government for more than a 24 decade took responsibility today for an attempted assassination 25 of President Hosni Mubarak in Ethiopia last week, saying that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6836 4a5esat3 1 killing Mr. Mubarak remained its "sacred duty." 2 The organization, the Islamic Group, said in a 3 statement that it will stop attacks against Egyptian government 4 officials and security force when Mr. Mubarak releases 5 thousands of Islamic militants, lifts emergency security laws 6 and institutes an Islamic theocracy. 7 "The Islamic Group in Egypt announces its 8 responsibility for the attempt to kill this dictator, which 9 took place in Addis Ababa on Monday, June 26th," said the 10 statement faxed to several newspapers. "Our attempts to carry 11 out the sentence of God against this criminal will not stop, 12 God willing." 13 The statement was not authenticated but the Egyptian 14 government seemed to take it seriously, declining to repeat 15 earlier assertions that the Sudanese government was behind the 16 plot. 17 The assassination attempt took place in the Ethiopian 18 capital Addis Ababa as Mr. Mubarak arrived there for a summit 19 meeting of the Organization of African Unity. Two assailants 20 and two Ethiopian police officers were killed in a gun fight 21 after the assassins opened fire on Mr. Mubarak's motorcade. 22 The Egyptian president was unhurt. 23 Egypt immediately asserted that the militant Islamic 24 Government of Sudan was behind the plot, saying a day later 25 that a Sudanese, Mohammed Seraj, was the group's leader. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6837 4a5esat3 1 Egyptian officials last week also hinted strongly that elements 2 of Ethiopian security forces cooperated with the plotters and 3 members of the Sudan's secret intelligence network. 4 The affair has also strained ties with Ethiopia, which 5 issued a scathing condemnation on Monday of what it said were 6 "Egyptian fabrications." Ethiopia asserted that all five of the 7 gunmen killed during and after the attempt were Egyptians. 8 Both the Sudan and Ethiopia said Egypt was seeking to 9 blame outside parties for a domestic dispute that is spilling 10 outside its borders. 11 The statement today by the Islamic Group seems to 12 leave open the question of how its operatives got into Ethiopia 13 and carried out the attempt. 14 The Islamic Group listed a number of other demands, 15 including "an end to Egypt's subservience to American and 16 Zionist policies and an end to the continuing surrender and 17 lack of determination concerning the Palestinian cause." 18 Responding to Ethiopia's assertions Monday that five 19 of the gunmen participating in the assassination attempt -- all 20 shot to death by Egyptian and Ethiopian security guards during 21 and after the attack -- were Egyptians. Egypt's Information 22 Minister and chief government spokesman, Safwat Asharif, said 23 today "there are still big question marks not just over the 24 dirty hands who committed the act but who planned it, who 25 trained them and who is behind those elements, be they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6838 4a5esat3 1 Egyptians or otherwise." 2 Until now the Islamic Group has been active inside 3 Egypt battling police and security forces largely in southern 4 provinces of Asyut and Minya since 1992. Its attacks and the 5 reactions of the Egyptian security forces have resulted in more 6 than 790 deaths. Its victims included policemen, militants 7 intellectuals, Coptic Christians and tourists. 8 The group has also been accused by Egyptian 9 authorities of planning at least two attempts on President 10 Mubarak's life in Egypt. In the United States, federal 11 investigators linked its spiritual leader, Sheikh Omar Abdel 12 Rahman, now on trial on charges of plotting to blow up the 13 World Trade Center, to an aborted plan to kill the Egyptian 14 president during a visit to the United Nations in 1993. The 15 visit was cancelled. 16 Tensions between the Sudan and Egypt are unlikely to 17 diminish as Hasan al-Turabi, spiritual mentor of the Islamic 18 Government of the President Omar al-Bashir of Sudan, threatened 19 to tamper with the Nile, which flows through the Sudan to Egypt 20 and is an essential lifeline for both countries. 21 Egypt's foreign minister, Amr Moussa, warned, "I urge 22 him not to play with fire -- and at the same time not to play 23 with water." 24 Your Honor, at this time the government would offer 25 into evidence Government Exhibit 2415-3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6839 4a5esat3 1 THE COURT: All right. Ladies and gentlemen, 2 Government Exhibit 2415-3 is received in evidence. 3 (Government's Exhibit 2415-3 received in evidence) 4 THE COURT: The exhibit is not received for the truth 5 of any of the matters asserted in the exhibit. It's received 6 solely with respect to the knowledge, intent and state of mind 7 of Mr. Yousry. 8 MR. MORVILLO: May I publish Government Exhibit 2415-3 9 to the jury, your Honor. 10 THE COURT: Yes. 11 MR. MORVILLO: May I read it to the jury, your Honor. 12 THE COURT: Yes. 13 MR. MORVILLO: Miss Griffith, can you highlight the 14 left-hand side. 15 Thank you. In handwriting, political Islam, essays 16 from Middle East. Report 27. What Does the Gama'a Islamiyya 17 want? Tala'at Fouad Qassem interview with Hisham Mubarak 18 edited by Joel Beinin and Joe Stork, 1997. 19 The text. Tala'at Fouad Qassem got his start in the 20 1970s when the al-Gama'a al-Islamiyya (Islamic Group) took 21 control of many student organizations in the Egyptian 22 universities. 23 Just flip to the end of the article, which are the end 24 notes, and read end note one -- which I will just read, you 25 don't have to display it. Footnote end note one, al-Gama'a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6840 4a5esat3 1 al-Islamiyya, (the Islamic Group) shall not be confused with 2 al-Gama'at al-Islamiyya, (Islamic groups) the common term for 3 all the diverse Islamic associations. 4 We turn back to the text. 5 He led the student union in Minya, a hotbed of the 6 Islamist movement, and later was a founding member of the 7 majlis alshura (governing council) of the organization at 8 large. Sheikh Umar Abdel Rahman later became head of the 9 majlis. 10 In 1981 the Gama'a majlis recruited an artillery 11 officer, Khalid El-Islambouli, to carry out its decision to 12 assassinate President Anwar al-Sadat. Qassem, who is 13 El-Islambouli's superior within the Gama'a, had been arrested 14 two weeks before the assassination and incarcerated in Tura 15 prison, but security forces failed to uncover the assassination 16 plot. In the subsequent trials Qassem was sentenced to seven 17 years and was actually incarcerated for eight before escaping 18 and making his way, via Sudan, to Peshawar, Pakistan, and the 19 ranks of the Afghan mujahadeen (fighters against the pro-Soviet 20 regime in Kabul). 21 In Peshawar in 1990 he began publishing Al-Murabitun 22 (The holy fighters), the first magazine of the Gama'a. He was 23 also involved in setting up a mahkama shari'iyya (Islamic 24 court) which passed death "sentences" on various Egyptian 25 officials and secularist personalities in Egypt. It was this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6841 4a5esat3 1 Court which issued the order resulting in the death of Faraq 2 Fuda. Al-Murabitun published rationales for Fuda's 3 assassination and for the Gama'a's decision to target tourists. 4 Over the next four years, Qassem travelled between 5 Peshawar in Afghanistan where militants were trained for armed 6 operations in Egypt. In 1989 Qassem became na'ib al-amir 7 (deputy chief) of al-Gama'a al-Islamiyya. Following the arrest 8 of Sheikh Abdel Rahman he became the Gama'a leader. Egypt put 9 pressure on Pakistan to extradite Qassem after an Egyptian 10 court sentenced him to death in the case of the "Afganis." He 11 then fled to Copenhagen, where he was granted political asylum. 12 We spoke with him there in November 1993. 13 How was al-Gama'a al-Islamiyya formed? How did it 14 evolve from the 1970s to the organization of today? 15 It began in the mid1970s with nine people in Minya, 16 reading the works of Ibn Taymiyya, Abu al-'Ala al-Mawdudi, 17 Sayyid Qutb, Sayyid Sabiq and others. [Ibn Taymiyya was a 18 medieval Hanbali jurist widely regarded as a source of much 19 contemporary Islamist thinking. The original names listed here 20 are leading figures of the modern Islamist movement.] A group 21 began in Asyut around the same time. The Minya group pressured 22 the school administration to segregate girls and boys, to halt 23 classes at prayer times and establish mosques. This activism 24 then spread to neighborhoods and surrounding villages. The 25 group worked to change the munkar (that which is forbidden), SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6842 4a5esat3 1 and after some destruction of property they got a law passed 2 banning alcohol. It was after this that these activists formed 3 al-Gama'a al'Islamiyya, a real organization. In Minya 4 University in 1977-78 they took over the student union. 5 When did the Gama'a move from being an evangelical 6 organization to one devoted to confronting the state? 7 Religion requires not just personal "conversion." We 8 began by spreading our message, but our goal has always been 9 the establishment of an Islamic state. 10 What was the state's response? 11 The confrontation with the state began in earnest in 12 1978, when the arrest of some members after protests against 13 Camp David. Soon afterward protests against al-Sadat's offer 14 of asylum to the Shah of Iran led to the murder of some of our 15 members by security forces. 16 Some say that al-Gama'a al-Islamiyya was supported by 17 an Egyptian state to fight the left. 18 Propaganda. Like the claim about Sheikh Abdel Rahman 19 working with the CIA. In fact, al-Gama'a al'Islamiyya was the 20 only organization to confront the state. Many members suffered 21 as a consequence. 22 How did you meet Umar Abdel Rahman? 23 Muhammad 'Abd al-Majid, a disaffected Muslim brother, 24 introduced Abdel Rahman to audiences around 1978. We got to 25 know him then. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6843 4a5esat3 1 What was Sheikh Umar's influence on the founding of 2 al-Gama'a al-Islamiyya. 3 His only influence was as a shari'a professor at 4 al-Azhar. We youth did not have his knowledge. 5 Why and when was the military wing of al-Gama'a 6 established? 7 In 1987, after the establishment of the first majlis 8 al-shura, which included Karim Zuhdi, Isam Dirbala, Najih 9 Ibrahim, Salah Hashim, Usama Hafiz, Asim 'Abd al-Majid, Sabri 10 al-Banna, Ali al-Sharif, Hamdi 'Abd al-Rahman, Rifa'i Taha and 11 myself. The idea was first suggested by Isam Dirbala in my 12 house during a meeting of the majlis in response to violent 13 attacks by the state. We supported the idea because "the only 14 way to compress yourself in this world is through force, the 15 only language that is understood." 16 What was your evaluation of the Muslim brothers? 17 After we started al-Gama'a al-Islamiyya, al-Sadat 18 released a number of Muslim brothers from jail to clamp down on 19 us in Cairo. When they tried to take on our people, we 20 developed a critical orientation toward the Muslim Brothers. 21 Were there differences within al-Gama'a al-Islamiyya 22 over this orientation? 23 In late 1978 several Gama'a leaders, including the 24 leader of the Gama'a, Muhyi al-Din Ahmad, were arrested in the 25 sa'id (Upper Egypt). Some Muslim brother lawyers came to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6844 4a5esat3 1 defense of these leaders. Muhyi al-Din was too poor to afford 2 a lawyer, so the Muslim brother lawyers agreed to defend him in 3 exchange for his joining the Muslim brothers. This was the 4 first proposition by the Muslim brothers to the Gama'a. After 5 that leaders of the Muslim brothers held a meeting at Ain-Shams 6 University. They invited us to this meeting. The Gama'a was 7 represented by three of its leaders, Muhyi al-Din, Abu al-Ila 8 Madi and myself from al-Minya University and by Najih Ibrahim 9 and Usama Hafiz from Asyut. 10 The Muslim brother leaders who attended that meeting 11 included Mustafa Mashur and Salah Abu Isma'il. They asked us 12 frankly if we would join the brothers. We refused because of 13 the differences in our agenda, but they succeeded in 14 influencing some Gama'a leaders, the most prominent being Muhyi 15 al-Din and Abu al-'Ila Madi from the sa'id; Isam al-Ariyan, 16 Hilmi al-Jazzar and 'Abd al-Mun'im Abu al-Futuh from Cairo; and 17 Ahmad Umar and Al-Za'farafi from Alexandria University. These 18 agreed to follow the Muslim brother leaders and they split from 19 the Gama'a. 20 Did they become the youth organization of the brothers 21 in the universities? 22 That's correct. But they kept moving under the banner 23 of the Gama'a, even though they had split from it. They wanted 24 to profit from the reputation of Gama'a among students. They 25 stopped doing this, however, after the events of 1981, due to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6845 4a5esat3 1 the torture they had endured at the and of security forces. 2 What was the effect of this split? 3 There were conflicts with the Muslim brothers in the 4 sa'id but no conflicts took place in Cairo because Isam 5 al-Ariyan, Hilmi al-Jazzar and Abdel Mun'im Abu al-Futuh had a 6 strong base among the students there and they faced no 7 competition. We continued our work within the sa'id and we 8 started in 1978 to hold meetings in al-Rahman Mosque in Asyut 9 every Monday. Our differences with the brothers began to 10 emerge at this point. The majority of youth would go to 11 al-Rahman Mosque and the minority to the Brothers' mosque. 12 You said you studied the writings of Sayyid Qutb, who 13 was a leader of the Muslim brothers. There are two points 14 here. One is our relation to the ideas of Qutb and the other 15 is the extent to which Qutb's ideas are those of the Brothers. 16 Qutb has influenced all those interested in jihad (holy 17 struggle) throughout the Islamic world. At the time there were 18 many interpretations (turuq) and we were in need of direction. 19 This Sayyid Qutb's teachings provided. The Muslim Brothers 20 today have abandoned the ideas of Sayyid Qutb. 21 But two years ago there was a declaration by Abud 22 al-Zumr (head of the jihad organization) calling for an Islamic 23 front between the Muslim brothers and al-Gama'a Al-islamiyya. 24 We published this statement in Al-Murabitun. We have 25 defined general areas where we can cooperate with other Islamic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6846 4a5esat3 1 groups, but neither Abud al-Zumr's statement nor what he wrote, 2 what we wrote in Al-Murabitun, intended cooperation with the 3 Muslim brothers. Our disagreements with the brothers prevent 4 cooperation. We think that multiplicity and variety are useful 5 as long as the Islamic state has yet to come about -- 6 THE COURT: Not yet. 7 MR. MORVILLO: Has not yet come about. 8 When and how did you escape from prison to Peshawar? 9 I spent seven years in prison. Then I was under house 10 arrest, was rearrested and spent another year of imprisonment, 11 interrogation and torture. In 1989 I was able to escape in the 12 course of all of the transporting from court to prison to 13 central prison. 14 How did you get to Sudan? 15 I was aided by people later involved in the attempt on 16 the life of the Minister of Interior and the assassination of 17 the speaker of Parliament. I was almost caught at the airport 18 on my way to Sudan. I spent twelve days in Sudan. Before 19 going to Pakistan, where I met Afghan Islamic leaders and the 20 brother Khalid El-Islambouli -- 21 THE COURT: Brother of. 22 MR. MORVILLO: And the brother of Khalid 23 El-Islambouli. 24 Some say there was a discussion between you and 25 Egyptian security officials after you were released from prison SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6847 4a5esat3 1 in 1988. 2 There was no such discussion. General Sa'id Thabit, 3 an important official from the state security forces, called 4 upon me while I was under house arrest in October 1988 5 following my release from prison. He told me it was necessary 6 to stop the violence undertaken by the Gama'a in the sa'id at 7 Ain-Shams and other regions. I specified our conditions: 8 First, releasing Gama'a prisoners, including those who had not 9 yet been sentenced; second, lifting the ban on our 10 propagandizing and rescinding the order to close our mosques; 11 and third, ending state torture and the taking of hostages. 12 Of course, these conditions were not met and the 13 security around my house intensified. After my escape and 14 rearrest in 1989, I was visited by the same man, who demanded 15 again that we end the violence, especially around Ain-Shams 16 where there had been a notable escalation in Gama'a's 17 activities against the police. I repeated our conditions and 18 he his refusal. There was no dialogue and there will be none. 19 But there was a mediation council which included 20 ulama, and as a result, Minister of the Interior, Abdel Halim 21 Musa, who was a participant, was forced to resign. We issued a 22 communique denying this. There will be no dialogue until one 23 side is victorious over the other or the Islamic regime is 24 established. 25 Does this mean al-Gama'a rejects any dialogue that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6848 4a5esat3 1 could stop the escalation of violence? 2 We will only entertain discussions with the state 3 security officials and intellectuals of the state (mashayikh 4 amn al-dawla wa-'ulama' al-sultan) in order to clear our name 5 in the face of lies propagated by the state. After coming to 6 power, perhaps we will enter into a dialogue with the leaders 7 about how they can leave the country. 8 Some have said that Abud al-Zumr was part of the 9 dialogue? 10 There was no dialogue and Abud al-Zumr himself denied 11 it. 12 Another report claimed that Safwat 'Abd al-Ghani (a 13 lawyer who has defended Islamists) had a part in the mediation 14 council and that he there confirmed the existence of a 15 dialogue. 16 First, there were changes in the statement of Safwat 17 'Abd al-Ghani. No one speaks for the Gama'a except myself, and 18 I have only spoken to deny the existence of the mediation 19 council. 20 What of talk of contacts between the Gama'a and the 21 American embassy? 22 The same. There have been no such discussions at any 23 level. The Americans approached us and we rejected them. 24 How did the Americans approach you? 25 Right after my release, I met with three -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6849 4a5esat3 1 THE COURT: First release. 2 MR. MORVILLO: Right after my first release I met with 3 three foreigners. One of them was an American journalist, who 4 asked human rights questions and what Gama'a members had faced 5 in prison. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6850 4A5MSAT4 1 Were there other attempts? 2 The American journalist tried again and I refused. I 3 had asked to see his report from our first meeting. 4 What about the American embassy? 5 After my rearrest in 1989, the political attache at 6 the American embassy tried to contact me through the same 7 lawyer who arranged the original meeting with the journalists. 8 I asked him what the attache wanted. He said the attache could 9 assist in my release and wanted to get to know me personally. 10 He say the he wanted to affirm that America was not the great 11 Satan, and to stress that American assistance does not aid the 12 Egyptian government in clamping down on the Gama'a. 13 Of course, I have refused. We consider the United 14 States the main enemy and do not distinguish between the United 15 States and Israel, or among Mubarak, Clinton, and Rabin. We 16 will never meet with them, ever. 17 How about discussions between the Gama'a and the Jihad 18 organization? 19 There is no such organization led my Abud al-Zumr. He 20 is part of the majlis al-shura of the Gama'a and he has created 21 no rival organization. 22 In 1984, Abud al-Zumr released a statement opposing 23 the leadership of the Gama'a in the sa'id. He entitled it, 24 Invalidity of Rule by the Blind. 25 Indeed, there was a debate over Sheikh Abdel Rahman's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6851 4A5MSAT4 1 leadership instigated by Abud al-Zumr, who asked for a fatwah 2 (legal opinion) supporting his leadership. Since he joined the 3 Gama'a, he has been on the majlis al shura and he has always 4 been a militant for the sake of God. We are proud of his 5 presence among us. 6 It came out in a court case that there is a 7 Peshawar-based organization led by Dr. Ayman al Zawahari called 8 Gama'at al Jihad with Abud al-Zumr as one of its principals. 9 The question of Abud al-Zumr I have already dealt 10 with. As for Gama'a al Jihad, this is an organization with 11 which we have no relations. We met in prison after the events 12 of 1981, but we have no relations with them. There was no 13 unity to begin with, so no question of a split. 14 What was the role of this organization in the events 15 of 1981 and the assassination of al-Sadat? 16 Gama'at al-Jihad had no role in the assassination of 17 Al-Sadat or the events in Asyut. Al-Gama'a al-Islamiya was 18 responsible. Jihad was simply caught up in the arrest campaign 19 in 1981, and we met in prison. They are brothers and have 20 exerted efforts in the sacred struggle, but they had no role in 21 the events of 1981. 22 When you met with al-Zawahari in prison you must have 23 learned about the creation of this organization and its 24 development. 25 According to al-Zawahari, they started in the 1960s SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6852 4A5MSAT4 1 with 18 and ended in 1981 with just three. During the arrest 2 and torture campaign, security forces discovered several secret 3 groups, and included them in our case. They got short 4 sentences. Some went to Afghanistan and some to Saudi Arabia. 5 Al-Zawahari went to Peshawar, where I met him in 1985. 6 Al-Zawahari started working among the Arabs and came to know a 7 rich Saudi, Usama Bin Laden, who helped create a base for those 8 who wanted to help the Afghan struggle. From that point, they 9 began to call themselves Gama'at al-Jihad. 10 Did Gama'at al-Jihad dominate activities in Peshawar? 11 Where was al-Gama'a al-Islamiya? 12 With the arrival of the leadership in al-Gama'a 13 al-Islamiya in Peshawar in the mid 1980s, people began to hear 14 more about us, especially because of the events of 1981. From 15 that time on, the Gama'a had a strong presence, not only in 16 Peshawar, but on the battlefield throughout Afghanistan. 17 Ayman al-Zawahiri's group focuses on military 18 activities. Is this a reason for the division between your 19 groups? 20 I think they discovered that military activities alone 21 would not suffice to attract new members. One must be involved 22 in ideas and the propagation of new ideas in order to attract 23 new adherents. 24 Is there still the matter of the "rule of the blind"? 25 Yes. The book they published on the conditions of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6853 4A5MSAT4 1 khilafa (caliphate) is weak. Sheikh Abdel Rahman has not asked 2 to be the khilafa (caliphate) because [the institution] does 3 not exist yet. As for leadership of the organization, Sheikh 4 Abdel Rahman has the qualifications for leadership (imara) of 5 the struggle. In any case, we put forth a long rebuttal to 6 al-Zawahiri's book which we did not publish because we want to 7 keep the discussion at this level. 8 What about reports of a union between your two groups? 9 There are many efforts in this direction. What I can 10 say is that we have bridged many gaps. 11 Why the violence against tourists? 12 First, many tourist activities are forbidden, so this 13 source of income for the state is forbidden. Striking at such 14 an important source of income will be a major blow against the 15 state. It does not cost us much to strike at this sector. 16 Second, tourism in its present form is an abomination. 17 It is a means by which prostitution and aids are spread by 18 Jewish women tourists, and it is a source of all manner of 19 depravities, not to mention being a means of collecting 20 information on the Islamic movement. For these reasons we 21 believe tourism is an abomination that must be destroyed. And 22 it is one of our strategies for destroying the government. 23 Why do innocent tourists have to be killed? 24 There are tourists who are innocent. That is why we 25 declared tourism, not tourists, our target. We have tried to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6854 4A5MSAT4 1 warn tourists not to come to Egypt. Otherwise, they open 2 themselves to danger. 3 There are countries without tourism which still suffer 4 from AIDS and drugs. AIDS and drugs are not a result of 5 tourism. 6 The Egyptian people did not know drugs. Tourism is 7 not the only reason, but it is the main reason for the spread 8 of AIDS, drugs, and spying. 9 For the sake of argument, let's accept that tourism is 10 a source of abomination. Why did you decide to strike at 11 tourism only in 1992, even though you were based in the sa'id, 12 which is a center of tourism in Egypt? You have been active 13 since the 1970s. 14 Tourism [as such] is not forbidden in Islam. But 15 people who come to the sa'id, even though they know of the 16 danger. There must be other reasons why they continue to come. 17 You mentioned that industry and agriculture -- 18 institutions of exploitation, you said -- are your next 19 targets. When will this start? 20 It depends on the government hostility toward us. 21 What are the Islamically sanctioned reasons for 22 striking at government industry and agriculture? 23 We will strike at these institutions without bloodshed 24 as much as possible and our military units will undertake those 25 activities when the time is right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6855 4A5MSAT4 1 The Gama'a has suffered a lot from attacking tourism. 2 Many members have been imprisoned and the organization has lost 3 influence in some areas. Did the Gama'a make a mistake in 4 striking at tourism? 5 The real fight has not yet started. You will find in 6 the newspapers accounts that say 99 percent of the Gama'a is in 7 prison. The police and the press do not know our true 8 strength. 9 The security forces have been able to diminish your 10 activities. 11 The Gama'a exists in 18 provinces, including tens of 12 centers and hundreds of villages. Up to now the state has not 13 won one battle in any of the 13 centers, just in the province 14 of Asyut. And the government suffers from grave economic and 15 political crises. For every member killed, 20 join. Contrary 16 to what some think, the power of the Gama'a is on the rise. We 17 are doing God's work and it is a duty to keep up the struggle. 18 The rest is up to God. 19 I disagree. There is no Gama'a presence in Imbaba, 20 Ayn Shams, Qina, Aswan, and Damietta. Your military wing has 21 suffered many losses. Drafting forces from Afghanistan is a 22 last resort. 23 You are wrong. Our activities are still strong in 24 these provinces. Our proselytizing continues and we are using 25 new means of communicating and strengthening our ties with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6856 4A5MSAT4 1 people. 2 There are reports of splits in the Gama'a's ranks, and 3 that this is why the provinces of Minya and Suhag have been 4 quiet. 5 There are no splits in the Gama'a. The reasons for 6 relative quiet in some areas are two: First, the government 7 cannot open all fronts all over the country, so they have not 8 attacked us in certain areas. Second, it is in our interest, 9 at this stage, to keep certain provinces quiet. 10 What are the main actions of the Gama'a's work now? 11 First, we are making ongoing preparations for a 12 military coup. The security forces don't know about these 13 because they are preoccupied with skirmishes in the sa'id. 14 Second, we are working in the area of mass mobilization. When 15 the Islamic revolution happens, there will be mass support to 16 head off foreign intervention. Our commando units have 17 acquired important experience over many years. The absence of 18 such operations does not mean activity has stopped. The state 19 does not know anything about these operations because of our 20 cell formation. 21 I think you are exaggerating. What is the evidence 22 for the existence of military units? 23 In 1981, the security forces had no idea of the 24 existence of the military unit. The lack of arrests now by the 25 security forces is no indication that our military units do not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6857 4A5MSAT4 1 exist. In the Jihad case many government military persons were 2 involved. 3 Those military who were arrested were of low rank and 4 had no influence inside the military. 5 I disagree. The lower ranks are critical. This is 6 the lesson of history. Some say the recent increase in 7 Gama'a's activities is a function of the Gama'a's illusion that 8 it has as much power as the state. 9 We have no illusions. The Gama'a is not just a 10 movement of protest or limited opposition but an alternative to 11 the regime, to the state. No other political forces will 12 survive. There will be only al-Gama'a al-Islamiya. 13 The role of the Gama'a's members from Afghanistan in 14 the acts of violence committed in Egypt has drawn a lot of 15 attention. What prompted you to go to Afghanistan to begin 16 with? 17 From the beginning we have aimed at preserving our 18 presence in Egypt and focused on spreading our activities 19 within the country. After the events and arrests of 1981, we 20 suffered from a loss of leadership. In 1984, when the first 21 imprisoned activists were released, we ignited our activities 22 and regained our following. As we expanded beyond Minya and 23 Asyut into the Delta and Cairo, particularly Ayn Shams and 24 Giza, the security forces started to clamp down hard on our 25 young activists again. We refused to compromise, so they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6858 4A5MSAT4 1 launched a campaign of liquidation against us. It was at that 2 point that the idea of protecting those youths by sending them 3 to Afghanistan came up. 4 Why Afghanistan? 5 For different reasons, the most important being the 6 need for military training. 7 What groups facilitated your travel to Afghanistan? 8 No governments. Afghan nationals involved in al-Da'wa 9 ila Jihad, (call to holy struggle) which had reached its peak 10 in the mid 1980s facilitated our travel and accommodations in 11 Peshawar. 12 Did al-Gama'a participate in the fighting in 13 Afghanistan? How was it at the start? 14 The martyrs Adli Yusuf, Abd al-Fattah, Abu al-Yusr, 15 and Muhammad Shawqi al-Islambuli, the brother of Khalid 16 al-Islambuli, went to Afghanistan in the mid 1980s. Adli Yusuf 17 established the military camp there in 1989. After gaining 18 military experience these men began to participate more and 19 more with the Afghan fighters. 20 How did the Afghan experience influence al-Gama'a 21 intellectually and practically? 22 Intellectually, there was no influence. All had been 23 influenced by the events of 1981 and after. Practically, 24 militarily, in intelligence gathering, and in the spread of our 25 message, we learned a lot. The leadership of al-Gama'a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6859 4A5MSAT4 1 delivered the khutba (sermon) at the time of Id al-Fitr (end of 2 Ramadan holiday) in Peshawar. We started to publish 3 Al-Murabitun in Peshawar, which was distributed throughout the 4 Islamic world and printed in Algeria and Indonesia, and the 5 bulletin Ajil, which presented news on our activities to the 6 whole world, including Egypt (by fax), in addition to the 7 distribution of cassettes and documentary videos. 8 News reports say the Americans helped the Afghan 9 resistance. Did you receive American support, too? 10 The Americans had two goals: First, to weaken the 11 Soviet Union and, second, to create a fifth column within the 12 Afghan resistance which would be friendly to them after the 13 victory over the Soviets. We, the Arabs, warned the Afghans of 14 these strategies. We never received any aid from the 15 Americans. They are our enemies. 16 How did you publish Al-Murabitun? 17 The first issue came out in February 1990. The cover 18 story with a picture of a gun was entitled "Terror is a Means 19 to Confront God's Enemies." Our aim was to familiarize people 20 with our idealology. We were shocked by its sudden success. 21 Soon it was being distributed throughout the Arab world, first 22 legally and then secretly. After publishing articles critical 23 of the gulf states, particularly Saudi Arabia, pressure was 24 brought to bear to stop publication. There were 27 issues all 25 together. Its publication will continue with a new issue under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6860 4A5MSAT4 1 a new name, Al-Ard (the land). 2 What is the situation of al-Gama'a in Pakistan, which 3 is under Egyptian pressure to hand over Gama'a's militants to 4 them? 5 There are many areas not totally under government 6 control. In those areas tribes have control and we are safe 7 from Egyptian, American, and Saudi intelligence. 8 What about Afghanistan? 9 Because of the terrain in Afghanistan and because of 10 our warm relations with Afghan parties and tribes, we are 11 protected from the Egyptians. 12 There have been reports of Gama'a activities in 13 northern Afghanistan near the border with Tajikistan. 14 We are present there to assist the Tajiks against the 15 communists in Tajikistan and to provide reserves for the 16 Gama'a's units in Qanuz. 17 Where are your military camps and what happens in 18 them? Where do your militants go after training? 19 The location and activities of our camps is not a 20 topic for discussion. As for where our militants go after 21 training, some go to fronts under the control of al-Gama'a, 22 where there are other Arab fighters, and some to fronts under 23 the control of Afghan forces with which we have good ties. 24 Some forces about whom we don't want anything known go to areas 25 under the complete control of al-Gama'a. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6861 4A5MSAT4 1 The Afghan war has ended. What are these elements 2 doing in Afghanistan now? 3 Some have died in battle and some have gone to 4 northern Afghanistan. Others are being kept in Afghanistan to 5 be sent, when the time is ripe, to Egypt. Some have already 6 been sent and are under the leadership of military units. 7 You say you have areas under the control of al-Gama'a. 8 So why did you leave Peshawar for Denmark? 9 I am not a military man, and those areas are only for 10 military operations. Since I am in charge of information, I 11 was in Peshawar, where our media activities were centered. But 12 since last year I have been banned from there. If I went 13 inside Afghanistan, I would have to end my activities because 14 the country suffers from devastation. 15 What pressured you to leave Peshawar? 16 The pressure began after I wrote a number of articles 17 criticizing the Saudi family for preventing pilgrims from 18 countries that support Iraq from going on the hajj 19 (pilgrimage). The Saudis demanded that charity groups in 20 Afghanistan stop supporting the Gama'a. They asked Nawaz 21 al-Sharif, the Pakistani president, to hand me over to the 22 Egyptian authorities. Sheikh Abd Rabb al-Ra's al-Sayyaf, 23 president of the Islamic Union of Afghanistan, put me under his 24 protection. I found my activities hampered in Afghanistan. So 25 after receiving an invitation from Denmark, I sought political SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6862 4A5MSAT4 1 asylum and got it. 2 Haven't the Egyptians succeeded in hampering your 3 activities? 4 The center of our activities has always been the 5 sa'id. Since pressure was brought to bear on us in Peshawar, 6 we have moved to Europe, where we are very active. Modern 7 means of communication make it easier for us to be in touch 8 with Egypt, and probably new means of activity here we have yet 9 to discover. 10 Translated from the Arabic by Souhail Shadoud and 11 Steve Tamari. 12 Notes. Editor's note: This interview is part of a 13 research project on political Islam in Egypt, the results of 14 which will be published in Arabic (Cairo: Al-Mahrusa Press). 15 In September 1995, Tal'at Fu'ad Qasim was arrested in 16 Croatia, and subsequently disappeared. Both U.S. and Egyptian 17 governments disclaim responsibility and knowledge of his 18 whereabouts. 19 I previously read the end note. 20 THE COURT: Ladies and gentlemen, we will break there 21 for lunch and resume at 10 after two. Please remember my 22 continuing instructions. Please don't talk about this case at 23 all. Always remember to keep an open mind until you have heard 24 all of the evidence and I have instructed you on the law. 25 Have a good lunch. See you soon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6863 4A5MSAT4 1 All rise, please, and please follow Mr. Fletcher to 2 the jury room. 3 (Jury not present) 4 THE COURT: Please be back at 2:00. Have a good 5 lunch. 6 (Luncheon recess) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6864 4A5MSAT4 1 AFTERNOON SESSION 2 2:15 p.m. 3 (In open court; jury not present) 4 MR. BARKOW: Your Honor, there is one issue that we 5 would like to raise if we could before we start. It relates to 6 Exhibit 2312-43 -- it is 2312-43 and 43T. Your Honor will 7 probably know it better as the same article that is Government 8 Exhibit 549, which the Court previously ruled upon. I don't 9 know the date of that ruling, but it started at the transcript 10 6119. 11 THE COURT: I had wanted to raise one issue. Can I 12 just do it at the side bar, please. 13 (Page 6865 SEALED by order of the Court) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6866 4A5MSAT4 1 (In open court) 2 MR. BARKOW: Your Honor, you previously had ruled on 3 Exhibit 549, which is the same Al-Hayat article, and at that 4 time the Court -- that was a free-standing article. And I 5 think we had mentioned belatedly at that time that this article 6 was going to come up with the Yousry search. That is what I'm 7 referring to, which is 2312-43. We have a copy of a 8 transcript, your Honor, if you would like us to pass that up. 9 THE COURT: It was Government Exhibit -- 10 MR. BARKOW: 549. At that point the Court had ruled 11 that the fourth, fifth, and sixth paragraphs of that article 12 should be redacted. 13 THE COURT: Right. 14 MR. BARKOW: At this point, your Honor, in connection 15 with the copy of the article found in the Yousry search, we 16 would ask the Court to admit the sixth paragraph, which 17 paragraph states: "Abdel Sattar said that Abdel Rahman had 18 recently stoped taking food other than what was necessary to 19 keep him alive. He added that the U.S. authorities had 20 withheld his insulin (which is needed by diabetics) and that 21 Abdel Rahman is now suffering from severe emaciation and "as a 22 result, he is no longer able to stand up on his feet to pray." 23 The reason that we ask for that to be admitted at this 24 point is to prove the fact of the dissemination of the false 25 medical statement. And in support of that I just want to point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6867 4A5MSAT4 1 to a few things in the transcripts. The Court did rely on 2 these intercepted calls in its opinion. 3 THE COURT: Hold on one moment. This is -- is it the 4 same article in the Yousry search? 5 MR. BARKOW: Yes, your Honor. 6 THE COURT: And no markings or anything? 7 MR. BARKOW: No, your Honor. It just has the date 8 written on the side of the article in Arabic. 9 THE COURT: And which is it in the Yousry search 10 exhibits? 11 MR. BARKOW: The exhibit number, your Honor? 12 THE COURT: Yes. 13 MR. BARKOW: 2312-43 and 43T. It is in the list 14 handed to your Honor by Mr. Morvillo. I think it is on page 9 15 about three and four from the bottom. I am not sure if I have 16 the same copy that your Honor has. Mine is printed at 8:57 17 a.m. 18 THE COURT: Yes, I have it. The notation was offered 19 against all, not offered for the truth of the statements in the 20 article. 21 MR. BARKOW: That's correct, your Honor. With respect 22 to this particular paragraph, we still are not offering it for 23 the truth of the statements in the article, but solely to show 24 that it was in fact disseminated. And I could point to some 25 additional evidence in the record that shows the contemplated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6868 4A5MSAT4 1 dissemination, if I may, but I want to emphasize, what we are 2 offering this particular paragraph for is the fact of 3 dissemination. We have conferred with counsel for Mr. Sattar 4 and for Mr. Yousry, at least, and I don't believe that either 5 one of them object to this particular paragraph. I have not 6 personally spoken with counsel for Ms. Stewart on this. 7 THE COURT: Rather than to give me a disparate defense 8 position, take a moment to talk to all of the lawyers before 9 raising the issue with me. We had a pretty long lunchtime. 10 MR. BARKOW: Your Honor, I apologize. We didn't see 11 counsel over lunch and we are not going to get to this for a 12 little while because, as the Court can see, there is reading to 13 be done. We wanted to let the Court at least know and all the 14 parties know that this was coming down the pike. We don't need 15 a ruling on this now, but we might be able to confer with 16 counsel and perhaps take it up at the break. Rather than wait 17 until we got there, we thought we should at least bring it up 18 now. 19 THE COURT: Thank you, I think. 20 MR. MORVILLO: Your Honor, there are a few exhibits 21 that we will probably get to late this afternoon as to which 22 the Court has previously ruled on a corresponding exhibit that 23 it would be admissible for the purpose of demonstrating 24 dissemination. And so the government would request with 25 respect to those exhibits -- I can give you their numbers -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6869 4A5MSAT4 1 the only instruction that would be appropriate would be that 2 they all get the instruction that they are not for the truth, 3 but no further limitation. And those are 2312-44. 4 THE COURT: What page on your list? 5 MR. MORVILLO: Page 5, 2312-48, which is on page 7. 6 Actually, it would be 2312-48B, which is not on this list. But 7 the article is broken into three sections. Which 8 corresponds -- 9 THE COURT: B is what? It is going to be 2312-48 -- 10 MR. MORVILLO: B as in boy. 2312-48 turns out to be 11 three sections. 2312-48B is that section which the Court has 12 previously ruled with respect to Government Exhibit 534. Then 13 there is Government Exhibit 2313-1, which is on page 9. And 14 that corresponds to Government Exhibit 540. And then the 15 article immediately after that one was not a Yousry search 16 article, but it is one as to which the Court has previously 17 ruled admissible, and that is Government Exhibit 542. And that 18 gets a limiting instruction that it is only admissible with 19 respect to Count 2 conspiracy and Count 3. Again, we probably 20 will not get to these until late this afternoon, if not 21 tomorrow morning. 22 THE COURT: What was the last one? 23 MR. MORVILLO: Government Exhibit 542. 24 THE COURT: Which is? 25 MR. MORVILLO: It was not in the Yousry search SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6870 4A5MSAT4 1 material, your Honor. It is on page 9, I believe. 2 THE COURT: Right. 3 MR. TIGAR: Your Honor. 4 THE COURT: Yes. 5 MR. TIGAR: With respect to 2313-1 at page 9, I have, 6 I think, twice argued about the fake fatwah and the charged 7 conspiracies and your Honor has on each occasion as to the 8 admissibility issue rejected my argument. It is really the 9 same issue here as 2313. I would like a continuing objection 10 to newspaper articles that follow in the same vain, if I may, 11 so I don't have to keep standing up. 12 THE COURT: Okay. And the limiting instruction here, 13 consistent with the other instructions. The limiting 14 instruction that is listed here is essentially that this is a 15 newspaper article. It is not being offered for the truth of 16 any of the statements in the article. 17 MR. MORVILLO: That's correct, your Honor. 18 THE COURT: Let's call in the jury. 19 (Jury present) 20 THE COURT: Good afternoon, ladies and gentlemen. 21 Good to see you all. 22 Mr. Morvillo. 23 MR. MORVILLO: Thank you, your Honor. 24 Your Honor, at this time the government would offer 25 into evidence Government Exhibit 2421-1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6871 4A5MSAT4 1 THE COURT: Government Exhibit 2421-1 admitted in 2 evidence. 3 (Government's Exhibit 2421-1 received in evidence) 4 THE COURT: Ladies and gentlemen, this is a newspaper 5 article. It is not offered for the truth of any of the 6 statements in the article, but solely with respect to the 7 knowledge, intent, and state of mind of Mr. Yousry. 8 MR. MORVILLO: Your Honor, may I publish the portion 9 of the stipulation which indicates where this exhibit was 10 seized from? 11 THE COURT: Yes. 12 MR. MORVILLO: For the record, this is Government 13 Exhibit 2300S, paragraph 2E: Government Exhibits in the 2421 14 series are from a box identified by Special Agent Monaco as a 15 "white Staples box containing miscellaneous documents" found in 16 the office on the second floor of defendant Yousry's residence 17 at 30-51 84th Street, East Elmhurst, New York and further 18 identified by Special Agent Monaco as having been marked by her 19 as "box No. 3." 20 May I publish and read Government Exhibit 2421 to the 21 jury, your Honor? 22 THE COURT: Yes. 23 MR. MORVILLO: Government Exhibit 2421-1. 24 THE COURT: Actually 2421-1 in evidence? 25 MR. MORVILLO: In evidence, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6872 4A5MSAT4 1 THE COURT: Okay. 2 MR. MORVILLO: Jailed Egyptian Militants Order Truce, 3 but the hounded and splintered Islamic Group may not comply, by 4 John Lancaster, Washington Post Service. 5 Cairo. Six years after opening a violent campaign to 6 topple the military-backed government of president Hosni 7 Mubarek, Islamics militants in Egypt are gasping for breath, 8 hounded by security forces bereft of popular support and now it 9 seems ready to raise a white flag. 10 Founders of the Islamic Group, Egypt's main militant 11 organization, issued a statement July 5, calling on their 12 followers to cease all military operations and refrain from 13 inciting violence against the government. 14 Given the splintered nature of the militant group, it 15 is unclear whether members will respect the declaration by the 16 six leaders who are serving life terms for their part in the 17 1981 assassination of President Anwar Sadat. One important 18 factor is whether the truce will be endorsed by the group's 19 spiritual leader, Sheikh Omar Abdel Rahman, who is serving a 20 prison term in New York after being convicted on terrorism 21 charges in connection with the 1993 bombing of the World Trade 22 Center. 23 Government spokesmen have dismissed the militants' 24 declaration as a sign of weakness and a tactical maneuver aimed 25 at winning breathing space to allow the organization to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6873 4A5MSAT4 1 regroup. They say they will continue security operations aimed 2 at eradicating the militants, who have largely been contained 3 within several rural provinces in the Nile Valley south of 4 Cairo. 5 Nevertheless, the militants' statement has been widely 6 interpreted as a potential turning point in an armed conflict 7 that has killed more than 1,000 people and raised fears abroad 8 about the stability of an important ally of the west and a key 9 mediator in the Middle East peace process. 10 Muntasir Zayat, a lawyer who is close to the group's 11 leadership and functions as its spokesman in Cairo, said in an 12 interview Sunday night that the Islamic Group leaders decided 13 to call for a truce after concluding that they could no longer 14 achieve their goal of creating an Islamic state through 15 violence. 16 He said the declaration also reflected the group's 17 desire to present a unified front with the government in 18 confronting Israel, its new respect for Mr. Mubarak's 19 "nationalism" and a commitment to pursuing political ends by 20 peaceful means. 21 "We're not working with the government, we're not 22 apologizing to the government, but you could say, it's a 23 truce," Mr. Zayat said. "It's impossible to face Israel when 24 our own side is divided." 25 The unilateral cease fire was proclaimed by a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6874 4A5MSAT4 1 defendant in the trial of 97 men and women charged in a series 2 of terrorist incidents, including the 1994 killing of a police 3 general and the placing of bombs outside Cairo banks and 4 tourist offices. 5 During a break in the trial at a military courtroom 6 near Cairo, the defendant, Mohammed Amin Abdelalim, read the 7 statement on behalf of the six jailed leaders, Karam Zohdi, 8 Nageh Ibrahim, Aboud Zomr, Hamdi Abdel Rahman, Fu'ad Dawalabi 9 and Ali Sherif. 10 "The unilateral truce is in the interest of Islam and 11 Muslims," Mr. Abdelalim said. "I am sure the leaders will 12 fulfill it. 13 A few days later in the same courtroom, Mr. Abdelalim 14 announced that the cease fire call had also been endorsed by 15 two leaders of the Islamic Jihad, the other main militant group 16 that has been fighting the government. 17 Egypt's largest Islamic opposition group, the outlawed 18 Muslim brotherhood, contends that it has never supported 19 violence. 20 The declaration appears to have generated confusion 21 within the organization themselves. Exiled militant spokesmen 22 in Europe have told Arabic language newspapers that operations 23 will continue in spite of the jailed leaders' plea. 24 On July 22, for example, six policemen were killed 25 when their vehicle was fired on by Islamic militants near Minya SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6875 4A5MSAT4 1 in the upper Nile Valley. 2 "My impression is there is no clear view and that 3 suggests there isn't a very cohesive leadership," a western 4 diplomat said. "In terms of their overall activities, there 5 doesn't seem to be any overarching strategy and no clear sense 6 of what they are trying to achieve other than shooting a few 7 policemen in Minya now and then." 8 In the interview Sunday night, Mr. Zayat acknowledged 9 that he and his associates were "still trying to convince our 10 leaders abroad" to back the truce. 11 He also said that Sheikh Abdel Rahman had been made 12 aware of the debate over the truce. "He is studying the 13 issue," Mr. Zayat said of the Sheikh's response to the 14 proposal. 15 Mr. Zayat said the "most important" factor in the 16 founders' decision was their recognition that "the government 17 has managed to beat them militarily." He said the truce 18 represented an attempt to "save the rest of the leadership" and 19 to secure the release of 35,000 imprisoned militants and their 20 supporters. Human rights organizations estimate that number at 21 10,000 to 14,000. 22 But he also said that some members of the group had 23 been impressed by Mr. Mubarak's tough negotiating stand towards 24 Israel. 25 "We now have an understanding of his nationalism," he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6876 4A5MSAT4 1 said. "He is very different from Sadat, who threw him," and 2 then in handwriting, self in with foreigners. 3 At this time, your Honor, the government would offer 4 into evidence Government Exhibit 2421-2 and a corresponding 5 stipulation, 2421-2S. 6 THE COURT: Government Exhibit 2421-2 is admitted in 7 evidence. 8 (Government's Exhibit 2421-2 received in evidence) 9 THE COURT: Ladies and gentlemen, this exhibit is only 10 the envelope, not its contents, and it is being admitted solely 11 against Mr. Yousry. The number of the stipulation is? 12 MR. MORVILLO: 2421-S. 13 THE COURT: Government Exhibit 2421S is received in 14 evidence. 15 (Government's Exhibit 2421S received in evidence) 16 MR. MORVILLO: May I read from Government Exhibit 17 2300S as to the location of that exhibit, your Honor? 18 THE COURT: Yes. 19 MR. RUHNKE: May I speak to Mr. Morvillo for a moment? 20 THE COURT: Sure. 21 MR. MORVILLO: Your Honor, I previously read the 2300S 22 stipulation as to the location of this document. 23 THE COURT: All right. 24 MR. MORVILLO: May I read 2421-S? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6877 4A5MSAT4 1 MR. MORVILLO: May I place it on the Elmo? 2 THE COURT: Yes. 3 MR. MORVILLO: The parties hereby stipulate and agree 4 as follows: 5 1. Government Exhibit 2421, which was found during 6 the search of defendant Yousry's residence, is a large envelope 7 with the words "Luxor incident" handwritten in Arabic on the 8 front. The envelope contains more than 30 newspaper articles, 9 mostly from Arabic language newspapers, reporting on the 10 November 17, 1997 terrorist attack in Luxor, Egypt. 11 2. Among the articles contained in Government Exhibit 12 2421 are reports that: 13 A. The Luxor attack resulted in the deaths of 58 14 foreign tourists, several Egyptian guards, and the six 15 individuals who allegedly carried out the attack; 16 B. Pamphlets left at the scene contained a claim of 17 responsibility by the Islamic Group for the attack; 18 C. The pamphlets left at the scene demanded, among 19 other things, the release of Sheikh Omar Abdel Rahman from 20 custody in the United States. 21 3. Government Exhibit 2421 was found in a box 22 containing numerous other files containing collections of large 23 amounts of clipped newspaper and magazine articles and other 24 documents on topics including: Egyptian politics, Egyptian art 25 and culture, Islamic terrorism, the Islamic Group, Islamists, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6878 4A5MSAT4 1 Sheikh Omar Abdel Rahman, and the Middle East. 2 Agreed to and stipulated and signed by all the 3 parties, dated September 30, 2004. 4 May I just hold up Government Exhibit 2421-2, your 5 Honor? 6 THE COURT: Yes. 7 MR. MORVILLO: At this time, your Honor, the 8 government would offer Government Exhibit 2405-4. 9 THE COURT: All right. Government Exhibit 2405-4 10 received in evidence. 11 (Government's Exhibit 2405-4 received in evidence) 12 THE COURT: Ladies and gentlemen, this exhibit is only 13 received against Mr. Yousry. 14 MR. MORVILLO: May I publish it to the jury? I am not 15 going to read the whole thing. 16 THE COURT: All right. 17 MR. MORVILLO: Ms. Griffith, I would ask you if you 18 could focus on the top of the document, the fax line. It reads 19 SEP-14-98 at 5:25 p.m. (789"12DM984780), a series of zeros, P2. 20 If you could focus in on the top half for a few 21 seconds, Ms. Griffith, and the bottom half. 22 Thank you. 23 At this time, your Honor, the government offers 24 Government Exhibit 2415-1. 25 THE COURT: Government Exhibit 2415-1 is received in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6879 4A5MSAT4 1 evidence. 2 (Government's Exhibit 2415-1 received in evidence) 3 THE COURT: Ladies and gentlemen, this exhibit is 4 received only against Mr. Yousry and it is not offered for the 5 truth of any of the statements in the exhibit. It is being 6 received solely with respect to the knowledge, intent, and 7 state of mind of Mr. Yousry. 8 MR. MORVILLO: Your Honor, the government would also 9 offer the corresponding translation, which is 2415-1T. 10 THE COURT: All right. Government Exhibit 2415-1T is 11 also received in evidence and it is subject to the same 12 instruction, ladies and gentlemen, as 2415-1 because it is a 13 translation of the same document. 14 (Government's Exhibit 2415-1T received in evidence) 15 MR. MORVILLO: May I publish the document and read the 16 translation to the jury, your Honor? 17 THE COURT: Yes. 18 MR. MORVILLO: Ms. Griffith, if you could focus on the 19 top half first. You can scroll through it. 20 May I read the translation to the jury, your Honor? 21 THE COURT: Yes. 22 MR. MORVILLO: Translator 4, Government Exhibit 23 2415-1T. No God except Allah. Muhammad is the messenger of 24 God. The Islamic Group, Egypt. In the Name of God, the 25 Merciful, the compassionate. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6880 4A5MSAT4 1 Signing treaties and excessive arrests will not 2 silence our people. 3 The suicide operation of Thursday morning, October 29, 4 1998 in Gaza strip confirms that the terrorist barbarian acts 5 of the Jews being supported by the Americans on our occupied 6 lands will not go unpunished. It emphasizes that our people in 7 occupied Palestine condemn the policy of the so-called 8 "self-government" in Gaza and Jericho; a policy that culminated 9 putting Sheikh Ahmad Yasin under house arrest and security to 10 stop him saying a word of truth in support of the lost usurped 11 right, the handicapped man. 12 The authority rushed to condemn the operation and put 13 Sheikh Yasin under house arrest at the time it lifted hands, 14 silenced tongues, and closed eyes and ears to the horrendous 15 crimes of the Jews against our country and our people 16 culminating in the stoning of a 70-years-old Sheikh to death. 17 By signing the Y-Plantation Treaty and by the acts the 18 authority does against our people in occupied Palestine, it put 19 off the fig leaf hoping to please (cursing) Natanyaho. He will 20 never be pleased. He will never deliver, same as the American 21 president who picked the leaf up to cover himself and his 22 disgrace. 23 Our Muslim peoples have to do their part supporting 24 Palestine against those who robbed its land and will. He who 25 robs will, silences people and chases the Mujahideen is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6881 4A5MSAT4 1 less criminal than him who robs land and honor. 2 (Continued on next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6882 4a53sat5 1 What happens in Palestine is but a natural outcome of 2 denying the role of Muslim peoples in our Islamic Arab world. 3 It is not strange for a few million Jews to conquer a few 4 hundred regimes of our countries after separating themselves 5 from their people and dedicating their efforts to establish 6 their thrones at the expense of land and honor. 7 The Islamic Group confirms its refusal to put Sheikh 8 Yasin under house arrest. It confirms its condemnation of the 9 Y-Plantation Treaty which endorses the usurped right and grants 10 the American Central Intelligence Agency an official role to 11 chase our people, a thing that used to be done behind the 12 curtain. 13 The Group emphasizes its refusal in order to confirm 14 that our Muslim people will need to rush to regain their rights 15 and impose their will in order to be able to do their part 16 towards Jerusalem and Palestine. If this is the duty of all 17 Muslim people, it is more of a duty to our people in Egypt 18 because Egypt borders Palestine. The Egyptians have 19 distinguished abilities, God the Almighty gave them. Besides, 20 their rulers were the first to withdraw confronting their enemy 21 by signing the "Camp David" Treaty. They weakened the nation 22 and made it an easy prey for their enemies. They were the 23 first to open the door of submission, deterioration and 24 acceptance of the status quo policy. They further contributed 25 to [illegible word] the weakness and defeat that we live today. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6883 4a53sat5 1 The Islamic Group confirms there is no hope to get rid 2 of this reality unless we exercise our right, defend our land, 3 country and freedom. We were robbed of everything. We have to 4 make sacrifices to get back what was taken from us. This is an 5 inevitable dutiful necessity 6 Thieves don't necessarily give back what they steal. 7 Usurpers do not voluntarily give back what they usurp. The 8 Jews and rulers are partners in crime. The Jews usurped our 9 land and the rulers usurped our will and our right to make 10 decision. Our land will not be liberated unless we liberate 11 our will. 12 The Islamic Group believes that Palestine needs Muslim 13 troops to liberate it. It therefore calls on the nation's 14 scholars and intellectuals, army men and leaders to restore the 15 nation's dignity, will and unified decision which springs from 16 its religion guided by God. "To those against whom war is 17 made, permission is given to fight because they are wronged and 18 verily, Allah is most powerful for their aid." 19 And if anyone puts his trust in Allah, sufficient is 20 Allah for him, for Allah will surely accomplish his purpose. 21 Allah has full power and control over His affairs; but 22 most among mankind know it not. 23 The Islamic Group, Saturday October 31, 1998. 24 Your Honor, at this time the government offers 25 Government Exhibit 2415-2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6884 4a53sat5 1 THE COURT: All right. Government Exhibit 2415-2 2 received in evidence. 3 (Government's Exhibit 2415-2 received in evidence) 4 THE COURT: Ladies and gentlemen, this exhibit has the 5 same limiting instruction as the last exhibit. It's offered 6 only against Mr. Yousry. It is not offered for the truth of 7 any of the statements in the exhibit. It's offered solely with 8 respect to the knowledge, intent and state of mind of 9 Mr. Yousry. 10 MR. MORVILLO: Your Honor, may I read from stipulation 11 2400S in evidence. 12 THE COURT: Yes. 13 MR. MORVILLO: The parties hereby stipulate and agree 14 that if called as witnesses at trial, qualified expert 15 Arabic-to-English translators employed by the Federal Bureau of 16 Investigation would testify that in their opinions, and then 17 we'll skip down to paragraph three. 18 Government Exhibit 2415-2 consists of a two-page 19 Arabic document followed by a two-page English document. The 20 English document in Government Exhibit 2415-2 is a true and 21 accurate translation of the Arabic-language document in 22 Government Exhibit 2415-2. 23 Your Honor, may I display Government Exhibit 2415-2 to 24 the jury? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6885 4a53sat5 1 MR. MORVILLO: The top line in English reads ID: 18 2 November '98. 18: 29NO.017P. 01. 3 If you could scroll through the document, 4 Ms. Griffith. 5 The third page of the document is in English and at 6 the top states translation from Arabic of press communique. 7 In the name of God, the merciful, the compassionate. 8 Al-Gama'a al-Islamiyya in Egypt. There is no God but 9 God and Mohammed is His prophet. There is no place for Jewish 10 people in the land of Muslim Egypt. 11 The forces of martyr Tala'at Yassien (Military Wing of 12 Al-Gama'a al-Islamiyya in Egypt) declare that they are 13 responsible for the Jihadi operation executed in Giza Province 14 yesterday. The result of the operation was 18 dead and 15 15 injured. We are taking responsibility now that our mujahadeen 16 are safely back in their bases. 17 The forces of Tala'at Yassien announce that the 18 purpose of this operation is to avenge the blood of the martyrs 19 killed in Lebanon by the sons of monkeys and pigs and the 20 slaves of the oppressive false idols (the Jewish people). 21 It is important to mention that the original target of 22 this Jihadi operation was a group of Jewish tourists who were 23 supposed to be taking the bus to Alexandria at the moment of 24 the attack. We obtained this information through careful 25 monitoring of the hotel and intelligence received by our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6886 4a53sat5 1 military wing. 2 We were surprised to learn that a group of Greek 3 tourists left on the bus instead of the Jewish group. This is 4 not our fault; it is a security measure randomly used by the 5 Egyptian security forces to protect the lives of the Jewish 6 people only, and if they were not so concerned with protecting 7 Jewish tour groups only, the Greek group never would have been 8 killed. 9 The forces of Tala'at Yassien declare that all the 10 Jewish interests in the land of Egypt will continue to be 11 targets until the Zionist enemy stops its barbaric air raids on 12 Lebanon. 13 We invite all Jihadi movements, namely Hezbollah, the 14 Hamas movement, the jihad movement in Palestine and the jihad 15 movement in Egypt to increase their Jihadi operations against 16 the Jewish people until the liberation of our Muslim land and 17 the Al-Aksa Mosque. 18 We would like to remind the Egyptian regime and its 19 head, the oppressor and traitor Mubarak, who is the biggest 20 double agent in the Middle East, that the war between us and 21 his system will continue. We would like to remind Mubarak's 22 Interior Minister that he is hallucinating if he thinks that he 23 has eradicated the mujahadeen and their Jihadi operation, which 24 they label terrorism. If the Interior Minister had spoken the 25 truth, what happened yesterday would never have occurred. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6887 4a53sat5 1 challenge the system to confront our future operation. We 2 advise them that, instead of spending all this money to fight 3 us, they should fight the real terrorists, namely the Jewish 4 people. 5 We have repeatedly warned all tourists not to come to 6 Egypt. We are renewing this warning because we are concerned 7 for their lives. We advise them not to be fooled by the 8 mendacious secular system in Egypt. We challenge it to prove 9 that we no longer exist. The best proof to the contrary is 10 what happened yesterday. 11 [A verse from the Quran] 12 [Signed] al-Gama'a al-Islamiyya in Egypt, April 19, 13 1996. 14 MR. BARKOW: Your Honor, at this point the government 15 requests permission to read and publish to the jury what is in 16 evidence as Government Exhibit 2203, 2203A, 2203AL, and we 17 offer into evidence Government Exhibit2203AT. This is all 18 evidence from the Sattar search and from the computer recovery. 19 THE COURT: All right. 2203, 2203A and 2203AL have 20 all been admitted in evidence already? 21 MR. BARKOW: Yes, your Honor. So the one I am 22 offering is 2203AT. 23 THE COURT: Any limiting instructions? 24 MR. BARKOW: 2203AT, your Honor, is not offered for 25 proof of the truth of the matters asserted, not admitted for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6888 4a53sat5 1 that purpose. 2 THE COURT: I don't have 2203. 3 MR. BARKOW: 2203 is a diskette, your Honor. 4 THE COURT: Actually -- oh, all right. It's 3:00 in 5 any event, and we're going to be sitting until 4:00, so let me 6 take our mid-afternoon break for ten minutes. 7 Ladies and gentlemen, please remember my continuing 8 instruction not to talk about the case. Keep an open mind. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6889 4a53sat5 1 (In open court; jury not present) 2 THE COURT: Have a seat just for a moment before we 3 break. 4 I was following with the list that Mr. Morvillo gave 5 me and didn't come across any of those exhibits on the list. 6 Am I missing any? 7 MR. MORVILLO: It should be on page two, your Honor. 8 It's the second -- 9 THE COURT: I'm sorry, you're absolutely right. And, 10 well, what is 2203AT? 11 MR. BARKOW: That's a diskette, your Honor -- oh, I'm 12 sorry. Maybe I misunderstood. 2203AT is the translation of 13 2203A. 14 THE COURT: OK. Which is the -- and all of these 15 exhibits are -- all of them except 2203AT have been received in 16 evidence? 17 MR. BARKOW: That's correct, your Honor. 18 THE COURT: And none was received for the truth of any 19 of the statements in the documents? 20 MR. BARKOW: That's correct, your Honor. 21 THE COURT: All right. 2203 -- 22 MR. BARKOW: Is just a floppy disk, and that's 23 probably why the Court doesn't have anything on that. It's the 24 floppy disk from which 2203AL, the screen shot, was printed. 25 This is the screen shot and this is the floppy disk. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6890 4a53sat5 1 2203A, then one of the documents printed from 2203AL, and 2 2203AT is the translation of 2203A. 3 THE COURT: Thank you. 15 minutes. 4 (Recess) 5 THE COURT: Please be seated. 6 MR. RUHNKE: Mr. Stern will be back when we proceed. 7 THE COURT: In terms of the exhibits that you'll get 8 to this afternoon? 9 MR. BARKOW: Your Honor, at least for the one I 10 brought up, we're not going to get there this afternoon. There 11 is an objection, but perhaps we can take it up later so we 12 don't use the jury's time for that. 13 THE COURT: OK. Let's bring in the jury then. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6891 4a53sat5 1 (In open court; jury present) 2 THE COURT: All right. When we left, ladies and 3 gentlemen, there was a reference to 2203A, 2203AL and 2203AT. 4 A couple of these had already been received in evidence. In 5 any event, all of those exhibits are received in evidence but 6 not for the truth of any of the matters asserted in the 7 documents, in the exhibits. 8 (Government's Exhibit 2203A, 2203AL and 2203AT 9 received in evidence) 10 THE COURT: All right. Proceed. 11 MR. BARKOW: Your Honor, if I may actually start with 12 Exhibit 2203, which is in evidence as well, and display that 13 momentarily for the jury. 14 THE COURT: All right. And 2203, ladies and 15 gentlemen, is in evidence but not for the truth of any of the 16 matters asserted in the exhibit. 17 MR. BARKOW: This is Government Exhibit 2203 in 18 evidence. Now, your Honor, may I publish Government 19 Exhibit 2203AL in evidence. 20 THE COURT: Yes. 21 MR. BARKOW: This is Government Exhibit 2203AL in 22 evidence. If I may just read this line, HEZB01.RTF, 8KB, 23 1/25/1999, 6:20 p.m., Rich text format. 24 And now, your Honor, may I publish to the jury what is 25 in evidence as Government Exhibit 2203A. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6892 4a53sat5 1 THE COURT: All right. 2 MR. BARKOW: This is Government Exhibit 2203A. 3 Now, your Honor, the government offers Government 4 Exhibit 2203AT and seeks to publish that to the jury by reading 5 it. 6 THE COURT: All right. I believe I said at the outset 7 that Government Exhibit 2203AT is received in evidence but not 8 for the truth of any of the statements in Government 9 Exhibit 2203AT. 10 MR. BARKOW: Government Exhibit 2203AT. In the name 11 of God, the compassionate and merciful. 12 His eminence, Sheikh Omar Abdel Rahman, may God keep 13 him. 14 Peace be upon you and God's mercy and blessings and 15 many happy returns. We ask God that this same time next year 16 we are blessed by having you free, praying to God guide to His 17 straight way. 18 Eminent Sheikh, it is not hidden from you what the 19 Muslims and Islamic call have faced in Egypt throughout the 20 past years, from troubles and enormous anxieties, huge losses 21 in human life and in the Islamic ranks; also in the Islamic 22 reform itself in the arenas of creed, morals or rituals. 23 When we saw that other brothers in the Islamic Group 24 have started to re-examine the experiment of armed 25 confrontation and to re-evaluate the good and the bad SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6893 4a53sat5 1 consequences that have resulted from it, it appears, without a 2 doubt, that the latter outweighed the former. Hence, some of 3 the Islamists from the followers of the call and the Islamic 4 Jihadist movement in Egypt called for the necessity of 5 establishing a new Islamic political party. It would be a 6 legal and practical umbrella, appropriate to revitalize the 7 Islamic call and to work for its protection through peaceful 8 jihad and political struggle. Being cautious that the policies 9 of the party preserve the fundamentals of Islamic call, the 10 authority of Islamic law and the ruling of the Quran and the 11 prophetic tradition. Also, cautious not to slip back in its 12 [the party's] practical policies and not to practice politics 13 in the trivial way it is currently practiced. 14 We found it necessary to send you this urgent letter, 15 hoping to receive your response to it as soon as possible, 16 including your opinion regarding this idea and these efforts, 17 so that our work is based on clear vision and enlightenment. 18 May God keep you (pl.) and may He benefit from you. 19 And peace be upon you and God's mercy and blessings. 20 Founders of the Islamic social party Kamal Al-Sa'id 21 Habib Jamal Sultan, Cairo 27 of Ramadan, 1419, 15 of January, 22 1999. 23 MR. MORVILLO: Your Honor, at this time the government 24 offers into evidence Government Exhibits 2415-6 and 2415-6T. 25 THE COURT: All right. Government Exhibits 2415-6 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6894 4a53sat5 1 2415-6T received in evidence. 2 (Government's Exhibits 2415-6 and 2415-6T received in 3 evidence) 4 MR. MORVILLO: May we publish Government 5 Exhibit 2415-6, your Honor. 6 THE COURT: Yes. 7 (2415-6 displayed to the jury) 8 MR. MORVILLO: It's a mostly Arabic document, but in 9 English across the top is written Lynne Stewart 3-2-99, and 10 then the second line appears to be Arabic. The third line says 11 approved by Lynne Stewart in English, and then the remainder of 12 the document is primarily in Arabic with the word Lynne written 13 in the margins twice, it looks like, and also in the text 14 occasionally. 15 May I now publish to the jury, your Honor, Government 16 Exhibit 2415-6T. 17 THE COURT: Yes. 18 MR. MORVILLO: Translator number 7, Lynne Stewart 19 3/2/99. A response to Al-Hayat (this could be used in a 20 doctorate dissertation) approved by Lynne Stewart. 21 Lynne: What do you think of the disagreement 22 concerning the initiative? 23 I think it is OK. I also admit that the opinion which 24 was published in Al-Hayat is a good one, but I think that the 25 final opinion should be left to the historical leadership SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6895 4a53sat5 1 (unintelligible). Give them the priority in order to establish 2 a new Constitution for the group. That is wrong, Lynne. 3 Another thing. 4 Lynne: What do you think of the forming of a 5 political party and the participation in the political life? 6 Dash: I don't agree for the following reasons: One, 7 to sacrifice one's life is not catastrophes because all those 8 who were killed are already in heaven. 9 Two, the cessation of violence which is decided by the 10 leadership for the group to apply is a matter of tactic and not 11 a matter of principle. 12 Three, the people's assembly was founded on 13 nonIslammic basis, so how could we participate in it? 14 Four, the prophet of God did not transform the Dirar 15 mosque to a serviceable one, but on the contrary, he gave 16 orders to burn it. 17 Five, we were instructed by the Koran to take Ibrahim 18 as an example: "I don't belong to you who don't worship God." 19 Six, it is not permissible to join the oppressors or 20 mingle with them. 21 Seven, entering the entity of this ruling is in itself 22 a recognition and reaffirmation of its legality. 23 Eight, for the Muslims to enter the people's assembly, 24 it is reaffirmation to its ruling in addition that it does not 25 rule by the shari'a (Islamic laws). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6896 4a53sat5 1 "Have we become, unintelligible, in both directions?" 2 Signature. 3 Your Honor, at this time the government offers in 4 evidence and requests permission to publish Government 5 Exhibit 2415-10. 6 THE COURT: All right. Government Exhibits 2415-10 7 are received in evidence. They're received solely against 8 Mr. Yousry. 9 (Government's Exhibit 2415-10 received in evidence) 10 MR. MORVILLO: Ms. Griffith, could you narrow the top. 11 The fax line is MAR-10-99, WED, 7:19 p.m. And then page 12 numbers P1. 13 United States Department of Justice, Federal Bureau of 14 Prisons. 15 FMC Rochester, Minnesota, 55903-4600, March 9, 1999. 16 Memorandum for Omar Abdel Rahman, register no. 17 34892-054 from Philip S. Wise, warden. Subject: Notification 18 of rejection. 19 On or about January 6, 1999, your attorney of record 20 mailed six audio tapes for processing to you. Those tapes were 21 received at the Federal Medical Center in Rochester, Minnesota 22 on or about January 12, 1999. In accordance with the Special 23 Administrative Measures imposed upon you pursuant to 24 28 CFR Section 501.3(c) the mail was forwarded to the Federal 25 Bureau of Investigation (FBI) for review prior to distribution. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6897 4a53sat5 1 The Special Administrative Measures provide that if 2 incoming mail is determined by the FBI or the Bureau of Prisons 3 to contain overt or covert discussions of or requests for 4 illegal activities or actual or attempted circumvention of the 5 special administrative measures, the mail shall not be 6 delivered. Review of the audio tapes revealed that they 7 contain discussions of illegal activity. Accordingly, the 8 audio tapes are being returned to the sender. 9 You may appeal the decision to the Bureau of Prisons 10 administrative remedy procedures. 11 Cc'ed Abdeen M. Jabara, attorney at law. 12 Page two also has a March 10th, '99 fax line, and it 13 is also from the United States Department of Justice, Federal 14 Bureau of Prisons, Federal Medical Center, FMC Rochester. 15 March 9, 1999. Abdeen M. Jabara, attorney at law, 36 East 12th 16 Street, New York, New York 10003, Re Omar Abdel Rahman, 17 Register no. 34892-054. 18 Dear Mr. Jabara, please find attached a copy of the 19 notification provided to Omar Abdel Rahman informing him that 20 the six audio tapes were reviewed in accordance with the 21 Special Administrative Measures and that the tapes will not be 22 issued to him. Although I am sending this letter to you via 23 facsimile, I will also send this via regular mail. The other 24 single audio tape which we received in midFebruary was cleared 25 and offered to your client. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6898 4a53sat5 1 You recently inquired whether the warden will 2 authorize Omar Abdel Rahman to receive an English Braille 3 dictionary to facilitate his study of the English language. 4 That request will be permitted. Prior to issuing the 5 authorization we will need the exact title of the book. 6 Additionally, the book may be sent directly from you, if the 7 item is softcover; if the book is hardcover, the item must be 8 sent directly to the institution from a bookstore or the 9 publisher. Please advise. 10 Finally you recently inquired whether the warden will 11 authorize Omar Abdel Rahman to receive an audio tape player. 12 The institution provided Omar Abdel Rahman with a new tape 13 player and that tape player has been observed to be in good 14 working condition. Additionally, Omar Abdel Rahman has not 15 complained about any problems with the tape player and the 16 institution has a new backup tape player available. 17 Accordingly, the request for a third tape player was declined. 18 Sincerely, Jeffrey E.E. Toenges, attorney advisor, cc 19 Philip S. Wise, warden. 20 Your Honor, at this time the government offers in 21 evidence Government Exhibit 2415-5. 22 THE COURT: All right. Government Exhibit 2415-5 is 23 received in evidence. 24 Ladies and gentlemen, this exhibit is received solely 25 against Mr. Yousry and Mr. Sattar and the exhibit is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6899 4a53sat5 1 received for the truth of any of the matters asserted in the 2 exhibit. 3 MR. MORVILLO: Your Honor, may I have a moment to 4 consult with counsel. 5 THE COURT: Yes. 6 MR. MORVILLO: Your Honor, this exhibit also has some 7 handwriting in the margin which says, approved by Mr. Jabara. 8 The government and the parties agree that that should come in 9 for the truth. 10 THE COURT: All right. That can be considered for the 11 truth. 12 MR. MORVILLO: May I publish this to the jury, your 13 Honor. 14 THE COURT: Yes. 15 MR. MORVILLO: Note from Abdeen Jabara. Mohammed, we 16 need a certified translation of the attached. Ahmed S. did a 17 translation but it is a bit rough. We appreciate all of your 18 efforts. Abdeen. 19 May I display the second page. 20 THE COURT: Yes. 21 MR. MORVILLO: At the top, JUL 15, 99, Thursday 22 12:29 p.m. Page one of two. Then on the left-hand margin in 23 handwriting it says, approved by Mr. Jabara. 24 Ms. Griffith, can you scroll through this. Can you 25 highlight the bottom portion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6900 4a53sat5 1 Http://almurabin.org/Bayan.htm, 6/29/99. 2 Your Honor, may I have another moment to speak with 3 counsel. 4 THE COURT: Yes. 5 MR. MORVILLO: Your Honor, I'd also just like to 6 introduce an oral stipulation from the parties. 7 THE COURT: Yes. 8 MR. MORVILLO: Which is the second, third and fourth 9 pages of Government Exhibit 2415-5 are a rough translation of 10 the first two pages of Government Exhibit 2415-5. 11 THE COURT: All right. And translation of an article? 12 MR. MORVILLO: It's a translation of a statement, your 13 Honor. 14 THE COURT: OK. All right. 15 MR. MORVILLO: May I read the translation. 16 THE COURT: Yes. 17 MR. MORVILLO: There is no God but Allah and Mohammed 18 is the messenger of Allah. The Islamic Group, Egypt. On the 19 feast of sacrifice and redemption, promise and devotion. 20 With those voices shouting throughout the earth, I 21 respond to your call, O Allah. I respond to your call and I am 22 obedient to your orders. You have no partner. I respond to 23 your call. All the praise and blessing are for you. All the 24 sovereignty is for you and you have no partner with you. 25 And on the memory of sacrifice and redemption, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6901 4a53sat5 1 memory of Prophet Abraham and his son, the sacrificed one, 2 Ismael, may peace and blessing be upon them, Abraham, the one 3 who declare it very loud (verily, we are free from you and 4 whatever you worship besides Allah, we have rejected you and 5 has started between us and you, hostility and hatred forever, 6 until you believe in Allah alone). 7 In those blessing days were the mercy of Allah comes 8 down on his faithful servants, the Islamic Group is going 9 forward with the help of Allah as one body in tact going toward 10 its goal and target, which is to aid and achieve victory for 11 Islam. And it doesn't matter how much of sacrifice we will 12 pay. We are going forward holding our creed with a clear 13 vision, knowing very well the difficulties that we are facing 14 because of its pure and fundamental belief in the full 15 understanding of this religion, the way that was understood by 16 the righteous believers before us, may Allah bless them all. 17 The Islamic Group on the blessing feast of sacrifice 18 sends its greetings to all Muslims and asks Allah to accept 19 from us and them all good deeds and asks him to have the flags 20 of the ones of Allah to flay high in the east and the west in 21 the coming days, hoping to see the signs of victory for our 22 fighters all over the Muslims world. 23 The Islamic Group will take the opportunity on this 24 good occasion to state and clear some important facts: 25 That the group didn't forget and will not forget its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6902 4a53sat5 1 scholar and leader, Dr. Omar Abdel Rahman, who has been 2 imprisoned unjustly in the United States. And it will do 3 everything it can to free him no matter how long it will take 4 or how much sacrifice it will cost. And we also extending the 5 invitation to all Muslims, and specially the Muslim scholars to 6 help free this great scholar. 7 The Islamic Group, including all its units inside and 8 outside Egypt in respond to the call of Dr. Omar Abdel Rahman 9 asserts and stress its commitment to stop all military 10 operations and to the seized fire initiative that was lunched 11 by the group imprisoned leaders in Tora prison, and the group 12 is sure that those leaders didn't initiate it except for the 13 best interest of Islam and Muslims. 14 The group commitment to this initiative doesn't mean 15 in any way that the group will abandon its established ways to 16 aid and achieve victory to the Islamic religion, such as the 17 preaching and the call to Allah, enjoying good and forbidden 18 evil and fighting for the cause of Allah in light of or Islamic 19 law and in the way that was understood by the trusted Muslim 20 scholars. 21 The Islamic Group takes this opportunity in this 22 declaration to send a agreeing to the souls of its martyrs who 23 were killed during the confrontation with the tyrant Egyptian 24 regime in the past, those who wrote with their blood great 25 stories and sat the example for sacrifice, giving and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6903 4a53sat5 1 redemption. And we ask Allah to accept them as martyrs and 2 make us and them amongst those who described in the Quran by 3 saying, among the believers are men who have been true to their 4 covenant with Allah; of them, some died and some still wait, 5 but they have never change their determination in the least.) 6 The Islamic Group on this occasion sends its worm 7 salutations and greetings to its leaders and to its sons and 8 daughters behind the burp weirs in prisons and upon all the 9 mujahadeen, Dr. Omar Abdel Rahman and also to their families, 10 the families of our martyrs and to our prosecuted young men and 11 women in front of military and civilian courts, and we will 12 pair good news and great victory for you. 13 The Islamic Group is calling upon the people of Egypt 14 from every aspect of life to support and aid their detained 15 brothers in prison until they are treated justly and set free 16 so their women and children can calibrate the holidays like all 17 Muslims. 18 The Islamic Group assure its sons and its supporters 19 and even its enemies that we starting this new era as one body 20 in tact, and we are sure that the Allah will aid us to achieve 21 victory against our enemies. And our thanks due to Allah for 22 grace and gift, specially the gift of unity and integration. 23 And we ask Allah to make us strong -- to make us among those 24 who created a new way to all of those who work to aid this 25 religion. The differences in opinions not necessary road to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6904 4a53sat5 1 disunity. And all praises due to Allah. 2 (An another favor which you do love help from Allah 3 and a speed victory) 4 (And Allah hath full power and control but must among 5 mankind know it not) 6 The Islamic Group Egypt, 7/12, 1419, 42-3-1999. 7 MR. RUHNKE: Your Honor, can I just have a little word 8 with Mr. Morvillo. 9 MR. MORVILLO: Your Honor, Mr. Ruhnke has requested I 10 display the original as it was found in the search. I'm happy 11 to do that on the Elmo with the Court's permission. 12 THE COURT: Yes. 13 (Original exhibit displayed) 14 MR. BARKOW: Your Honor, at this point the government 15 requests permission to publish to the jury what is in evidence 16 as Government Exhibits 2201, 2201A, 2201AL, and we offer and 17 ask to publish 2201AT. 18 THE COURT: All right. 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6905 4A5MSAT6 1 THE COURT: And all of these are offered solely 2 against Mr. Sattar, right? 3 MR. BARKOW: Yes, your Honor. 4 THE COURT: To the extent that the record is not 5 clear, Government Exhibits 2201, 2201A, 2201AL, and now 2201AT 6 are received in evidence. They are received solely against 7 Mr. Sattar. They are not received for the truth of any of the 8 matters asserted in the exhibits. And they are received solely 9 with respect to the knowledge, intent, and state of mind of 10 Mr. Sattar. 11 MR. BARKOW: Your Honor, these are materials from the 12 Sattar search and the computer found them. May I publish 13 these? 14 THE COURT: Yes. 15 MR. BARKOW: This is Government Exhibit 2201, 16 Government Exhibit 2201AL. It reads Arab.1.text.4.gif, 99KB, 17 CompuPicPro 7/16/1999, 4:15 p.m. 18 This is Government Exhibit 2201A. Across the top 19 reads Arab.1.text.4.gif, page 1. 20 The second page, third page, fourth page, fifth page, 21 and the sixth page. 22 Your Honor, may I read and publish Government Exhibit 23 2201AT? 24 THE COURT: Yes. 25 MR. BARKOW: Government Exhibit 2201AT. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6906 4A5MSAT6 1 We refuse the democratic experiment and will not 2 abandon Jihad. There is a measure of response after Habib 3 al-Adli took over as minister of the interior. 4 Mustafa al-Muqri', the most prominent leader of the 5 Egyptian "Islamic Group" who is nominated to succeed Omar Abdel 6 Rahman to Asharq al-Aswat. 7 Sheikh Muhammad Mustafa al-Muqri' is considered the 8 only nominee, from among the fundamentalists to succeed Omar 9 Abdel Rahman, the leader of the "The Armed Islamic Group" who 10 is detained in the United States in the case of the bombings in 11 New York. And in spite of his [al-Muqri's] presence in Britain 12 for five years and his request for political asylum there, he 13 is not like the rest of the fundamentalist. He deliberately 14 avoids the media and the spotlight by all means. This 15 interview, exclusively with "Asharq Al-Awsat, came about after 16 the mediation of his attorney, Muntaser al-Zayyat. Al Muqri' 17 has a monthly meeting and several lectures a week given in the 18 name of "The Moslem League for Followers of the book and the 19 Sunna in Britain," which he heads; in addition to the mosque in 20 the Cliborn (PH) area, west of London, in which he gives the 21 Friday sermon. "Asharq al-Aswat" meet with Mustafa al-Muqri' 22 at his house, which is not far from the mosque, the day before 23 yesterday and interviewed him regarding his book, "Rules for 24 the Killing of Civilians in Islamic law," in which he 25 contradicts the opinion of fundamentalist leaders from "The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6907 4A5MSAT6 1 Islamic Group" and "The Armed Jihad," led by Ayman al-Zawahari. 2 He summarizes his beliefs in the first chapter, titled 3 "Legitimate Jihad and Killing civilians." In his judgment, 4 there is a legal immunity to ten categories of people whose 5 killing is forbidden, even if they are from among those at war, 6 like women, children, the elderly, farmers, laborers, and 7 slaves. The strangest fact revealed by this interview was that 8 arriving to a place of power is a matter that is not absent 9 from the minds of fundamentalist leaders abroad. Sheikh 10 Mustafa al-Muqri' chooses his expression carefully when he says 11 "we dream of carrying Islam to power," and that the stopping of 12 violence initiative on last March 24th is an announced truce to 13 halt operations. At the same time, he insists "that Islamists 14 are in a period where they are deemed weak as a result of 15 circumstances that were imposed on them" as a result of the 16 security-related blows they were dealt, this is a new policy 17 adopted by the "consultative body fo the group," inside and 18 abroad, for the overall good and social peace. However, they 19 will not abandon "jihad," "because it is an essential 20 requirement of the Islamic faith. 21 Below is a verbatim of the interview. 22 London: Muhammad Al-Shafi'i. 23 What will be the fate of the Islamic Group after 24 having launched its initiative to halt the violence that was 25 agreed to by its "consultative council abroad" on the 24th of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6908 4A5MSAT6 1 last March? 2 I was one of those who helped create stability during 3 the period of operations inside Egyptian society in order to 4 maintain stability and social peace in return for the 5 government ending its police practices. I did so after leaving 6 prison in Al-Minya governorate during 1990, in the period of 7 violence between Muslims and Copts, which became known as the 8 immoral networks for recruiting Muslim women. This case is 9 well known in the prosecutor's and police files. I was in 10 detention when these incidents occurred. The state's security 11 officials in Al-Minya held several meetings with me in an 12 attempt to calm the situation. Freedom to propagate the call, 13 the lifting of the siege imposed on some mosques, and the 14 release of the detainees were my primary conditions. Some of 15 these demands were met. Stability prevailed in Al-Minya from 16 that time until the government started again. It began by 17 pursuing me, personally, because of a Friday sermon I delivered 18 at al-Tawhid (PH) mosque in Al-Minya governorate. It even 19 pursued me on the basis of the 1992 law on combating terrorism. 20 I was one of those who called for the implementation of the 21 initiative to "halt operations." I started to talk about 22 giving "The Islamic Group" the freedom to propagate the call as 23 one of the citizens' rights. We wanted freedom for Egypt and 24 its people through what we believe to be the truth. How can 25 the truth be up held when the Islamic Groups are forced to obey SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6909 4A5MSAT6 1 the religion of secularism? All we are demanding today is they 2 are given the right to think and express their views and 3 freedom to propagate the call. Then, there will be no need for 4 the (sword) or arms, and I still have the opportunity to convey 5 my message to the people. "The Islamic Group" does not want 6 the dishonest and the hypocrites to believe in it, but wants 7 the people as a whole to follow the truth voluntarily and for 8 the nation to be on the path to implement God's law out of its 9 free will. Halting operations is not some kind of truce. A 10 legal truce is an agreement between Muslims and others not to 11 fight. What we have now is not a truce, but a stand and an 12 initiative taken by the Islamic Group for internal reasons. It 13 is not dependent on whether the government is in agreement with 14 it or not. "The Islamic Group" chose to stop the operations, 15 regardless of whether or not the security agencies were in 16 agreement, because that was in the interest of religion, the 17 nation, and the group, which wants to apply God's law. Despite 18 its initiative to halt operations, The Islamic Group did not 19 abandon "jihad," because it is a binding duty on every Muslim. 20 But there are rules to this duty. Every ruling in God's law is 21 governed by whether or not its benefits outweigh its evils. It 22 is not right to have a Jihad when its evil outweighs its 23 benefit. 24 What is the plan that "The Islamic League for 25 Followers of the book and the Sunna," which you lead, intends SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6910 4A5MSAT6 1 to present? 2 The Islamic League for Followers of the Book and the 3 Sunna was established in the west in 1994. Like the Prophet's 4 companions, who went to Abyssinia, I did not leave Egypt 5 voluntarily, but was forced to leave the dearest country to my 6 heart because of the security pursuits that I was subjected to 7 before fleeing Egypt. These reached the extent of arresting 8 anyone who helped me or lent me a hand, even to drive me to the 9 mosque to perform my duties. It was for this reason that I 10 decided to leave Egypt, because I could not carry out my 11 duties. My case, in this way, is similar to that of Ja'far 12 Bin-Abi-Talib, who sought safety by migrating to Abyssinia. We 13 are propagating the Islamic call within the confines of British 14 law by setting an example. We hope to eliminate the ethnic 15 differences among the Islamic communities in Britain and at the 16 same time we hope that people in Egypt will attain their right 17 to propagate the Islamic call freely. 18 How is "The Islamic Group" exercising its propagating 19 or political activity under the current circumstances? 20 "The Islamic Group" has practically only the 21 international forums. In other words, it no longer has 22 positions inside Egypt to carry out its propagating activity. 23 The group's members' propagating activity is almost restricted 24 to the pen and the Islamic cassette or through forums on the 25 internet which express the group's views on God's religion and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6911 4A5MSAT6 1 compliance with his orders and prescriptions. The real arena 2 for spreading the philosophy of "The Islamic Group" will always 3 remain inside Egypt. Any action that is severed from its 4 domestic roots will remain valueless. We hope that the group 5 will have an influential role in society in the future, one 6 that aims to achieve our aspirations for what is beneficiary 7 for this world and the hereafter. 8 The establishment of Islamic parties that express 9 Muslims' views is completely ruled out. It will be like the 10 owner of horses who keeps them in a confined track, except for 11 one which he allowed to roam freely in an open one and then 12 sets up a race between them. Is it not absurd to call for 13 establishing Islamic parties when the stronger party that is in 14 control does not believe in alternating authority in the first 15 place? That was proven by the practical experiences of 16 countries that went through the so-called democratic 17 experiment. This does not, however, mean that we approve of 18 the legitimacy of parliamentary action. 19 The Islamic Group rejects the democratic experience. 20 We reject the parliamentary experience from the legal angle, as 21 well as from the practical one. As I have already explained, 22 it is futile. For example, how can a communist party be 23 allowed to express its view when it is against the people's 24 creed and the whole nation's religion? 25 These groups that are present in the political arena SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6912 4A5MSAT6 1 must believe in the nation's creed. They can then differ over 2 issues that are debatable. There is no objection to allowing 3 them compete, not over authority, but over the presentation of 4 the ideal programs that are of benefit to the nation. A man 5 who competes in order to control the nation's fate and people's 6 interest cannot be trusted. 7 The dream of being in power. 8 As Islamists, do you dream of attaining power one day? 9 We dream of bringing Islam to power, even if we are ruled by an 10 iron hand, as long as the ruler complies with God's law. Had 11 power been our dream, then the shortest route would have been 12 for us to rise in the ranks of the party monopolizing power, 13 that is, leave the banner of Islam and join the banner of Horus 14 [Pharaonic sky god]. 15 What will be the fate of the literature and the 16 research done by The Islamic Group's leaders that urged 17 fighting? 18 I answer your question with a question. What would be 19 the fate of the so-called peace initiative if Israel launched 20 war on our government, reoccupied Sinai, Jordan, or any part of 21 the Arab world? Let us see what happens and then comment. We 22 should not muddle the existing call to halt operations. It is 23 not right to talk about what will happen tomorrow as long as 24 the intentions are sincere and the policy adopted inside Egypt 25 is one of propagating God's religion. The fact is that there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6913 4A5MSAT6 1 is a measure of response after Habib al-Adli took over as 2 Egypt's interior minister. But this is not what is required. 3 It is stability that we are currently seeking. 4 We are now deemed weak, and these are not demands we 5 require of the regime. It is to its [the regime's] advantage 6 to agree with the initiative and to return the sons of the 7 nation to support the domestic front against the secular attack 8 of the new world order. And it is to its advantage for The 9 Islamic Group to practice its calling and its program amidst 10 the Egyptian people. For our people did not stand up to the 11 Zionists except through their creed, their monotheistic 12 witness, and their shouts of "God is great," and this is what 13 history has proven over time. What we are demanding today is 14 our legitimate right. We are demanding freedom to propagate 15 the call, the release of the detainees, the group's right to be 16 allowed to carry out its propagation from its pulpits, and to 17 leave the Islamist leaders inside and outside the country, 18 alone without being hounded by the security agencies. That 19 mean that they should be given the opportunity to think and 20 make decisions under normal conditions and without any mental 21 or psychological pressures. 22 The call to free Omar Abdel Rahman. 23 It was observed that the statement issued by the group 24 leaders abroad supporting the halt to violence called for the 25 launch of a campaign to release Omar Abdel Rahman, the leader SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6914 4A5MSAT6 1 of "The Islamic Group" who is detained in the United States 2 through all legal means. What are the mechanisms used by "The 3 Islamic Group" to release its Sheikh? 4 Our hope is in God almighty, for us, God sufficeth, 5 and he is the best disposer of affairs. It is no secret that 6 such matters have become difficult. There are means for 7 bringing about the release of Sheikh Omar Abdel Rahman, such as 8 urging Islamic and human right organizations to pursue 9 legitimate moves. Also, issuing statements and holding 10 conferences like the one we held in 1997 in support of Sheikh 11 Omar Abdel Rahman. A number of Islamic leaders from all over 12 the Arab and Islamic world, Europe, and the United States took 13 part in that conference. We called for Sheikh Omar's release. 14 It is now reported that the U.S. Government is seriously 15 thinking of releasing the Sheikh of "The Islamic Group." 16 Which third country do you recommend to host Abed 17 Rahman if the Egyptian government refuses to accept him after 18 his release? 19 I recommend a European country where the Sheikh can 20 feel safe. I am not naming it at present, but it will be a 21 safe country where Sheikh Omar can spend the rest of his days. 22 Killing civilians. 23 Can Islamic law be subjected to interpretations, so 24 that some groups sanction the killing of civilians, policemen, 25 and Christians and after some time, the same group would go on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6915 4A5MSAT6 1 to disallow such killings? 2 Jurisprudence defines a civilian as one who is not 3 prepared to fight. I listed the ten types in my book with the 4 rules on killing civilians. The third chapter states that the 5 following have legal immunity against being killed, even if in 6 a state of war: "Women, children, the elderly, helpless 7 labors, monks living in cells and monasteries, farmers 8 preoccupied with their farming, workers not involved in acts of 9 killing, slaves, servants and attendants, and those are in way 10 of domestics and entourages and those suffering from chronic 11 illnesses." 12 I relied in my research for these ten types on Islamic 13 scholars' writing. These people have immunity. But to include 14 civilians who are not from these types would be too much for 15 people to stand, as if being attacked by a thief and defending 16 yourself, or if a policeman attacks you with the intention of 17 killing you or violating your honor, you must defend yourself, 18 even by fleeing. 19 We have to differentiate between the civilian who does 20 not participate in the fights and the fighting military man 21 and, likewise, the one who carries out acts of war even if he 22 does not carry a weapon. But generally speaking, legal matters 23 are not open to interpretations. These issues are agreed upon 24 based on Islamic constants. All Islamic law scholars agree 25 from the legal point of view on the ban on killing civilian SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6916 4A5MSAT6 1 women and children. But if something, whether mildly or 2 drastically, different from that was issued by some "Islamic 3 Groups," then they must apologize and refrain from doing wrong, 4 as this is better than persisting with it. Returning to the 5 truth is a virtue. 6 THE COURT: Let's stop there. It is just a little 7 after four and I said we would break at four today. 8 Ladies and gentlemen, very important to continue to 9 follow my instructions. Please, please, don't talk about this 10 case at all among yourselves or with anyone when you go home 11 this evening. Remember, don't look at or listen to anything to 12 do with the case. If you should see or hear something, simply 13 turn away. Don't look at or listen to anything to do with the 14 case. 15 Always remember to keep an open mind until you have 16 heard all of the evidence, I have instructed you on the law, 17 and you've gone to the jury room to begin your deliberations. 18 Fairness and justice to the parties requires that you do that. 19 With that, have a very good evening and I look forward 20 to seeing you tomorrow morning at 9:30. 21 All rise, please, and follow Mr. Fletcher to the jury 22 room. 23 (Jury not present) 24 THE COURT: Could I ask where we are in terms of time? 25 MR. MORVILLO: Your Honor, I think we will probably SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6917 4A5MSAT6 1 rest tomorrow. 2 THE COURT: If there are issues with respect to any of 3 these documents, you want to talk together about them and I'll 4 see you first thing tomorrow at 9:00? I would prefer that you 5 talk among yourselves first rather than having a dialogue 6 across the table. 7 MR. BARKOW: Your Honor, we can do that, although I 8 did confer with Mr. Tigar about the exhibit that I had raised 9 earlier which I need to get the number. And he did tell me 10 that he was going to object. And so I don't know -- 11 MR. TIGAR: Your Honor, actually, I had objected to it 12 in its 549 guise. I forgot that I had done so, which is 13 typical of today. But I did that at 6104 and 05. And your 14 Honor ruled in a long discussion of this very exhibit at 6119 15 and 6120. And I doubt that we will have a great deal to add to 16 your Honor's analysis, which was specifically addressed to 17 Mr. Sattar, as well as Mr. Al-Sirri. I wanted to bring those 18 to the Court's attention. I think that will materially shorten 19 any discussion that we would have about it tomorrow. 20 MR. BARKOW: Your Honor, I'm prepared to state 21 something briefly about it now. I actually cited that page to 22 the Court previously. And all we are doing at this point is, 23 as I said, raising the sixth paragraph and offering it for the 24 purposes of showing that it was actually published for the fact 25 of publication and, therefore, for the fact of dissemination. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6918 4A5MSAT6 1 And that sixth paragraph, as a first argument, we think that 2 that particular paragraph does not fail 403 analysis for that 3 particular purpose. 4 But I would also like to point out as a second 5 argument that when that paragraph is compared to the content of 6 the statement crafted by Mr. Sattar and Mr. Al-Sirri in 1221X, 7 which is in evidence, I don't have the exact page number, but 8 it is between pages 1 and 15 where they are crafting the false 9 medical statement dissemination. It compares almost 10 identically in the published article. I read that earlier and 11 the Court has it in front of the Court. I can read it again, 12 if the Court would like. 13 But in the transcript, 1221X, Mr. Sattar and 14 Mr. Al-Sirri craft a statement that states that pertinent part: 15 He was denied the right to take his insulin [pause] which a 16 diabetic needs. The diabetic might go into a coma because 17 of -- he became unable to stand up and pray. Because he became 18 unable to stand on his feet while praying. 19 And if that is compared to the sixth paragraph in 20 Government Exhibit 2312-34T, they are almost identical. And so 21 we think that that authenticates that paragraph as the accurate 22 dissemination of what Mr. Sattar and Mr. Al-Sirri crafted. 23 Furthermore, in that same call, 1221X at pages 16, 19, 24 24 to 25, and 35 to 36. 25 THE COURT: I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6919 4A5MSAT6 1 MR. BARKOW: I'll do that more slowly. 16, 19, 24 to 2 25, and 35 to 36, that's all in 1221X. There is discussion 3 over the anticipated and planned dissemination of this very 4 statement just after they finished crafting it. It is the 5 dissemination discussed by e-mail, by website, by fax to all 6 the people, to the news agencies, to Reuters and France. And 7 then at the end of the call Mr. Al-Sirri and Mr. Sattar have an 8 exchange where, in essence, Mr. Al-Sirri says: Shall I 9 disseminate it? And Mr. Sattar says: Yes, disseminate it. 10 That's a call on January 8. And then this Al-Hayat article -- 11 THE COURT: January 8 is 1221X? 12 MR. BARKOW: Yes. That call is on January 8, 2001. 13 This Al-Hayat article tracking the content is published on 14 January 10, 2001. 15 And then in Government Exhibit 1223-X, which is in 16 evidence, there is discussion between Mr. Sattar and Taha over 17 whether the newspapers have picked up the Islamic observation 18 center's story on Abdel Rahman yet. And in these calls there 19 is the crafting of the statement and then explicit discussion 20 over the dissemination of it. And then what we have here is in 21 fact the dissemination of it and the publication of it in the 22 article. Of course, the Court is aware of 1221X because the 23 Court relied on it in allowing the first three paragraphs, but 24 we were -- we belatedly brought to the Court's attention the 25 fact that we were going to raise it here and that's why we are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6920 4A5MSAT6 1 raising this sixth paragraph now and trying to air these issues 2 at this point, before we get to it in the presentation of this 3 search evidence. 4 MR. TIGAR: Your Honor, actually, going back to the 5 transcript, beginning at page 6114, your Honor gave an opinion 6 that was visibly based on notes you had made because you cited 7 to us a number of cases on the issues that the parties had 8 raised. And that careful analysis was addressed to the general 9 issue of newspaper articles. 10 Then your Honor -- may I be seated and talk so I can 11 read my computer screen? 12 THE COURT: Sure. 13 MR. TIGAR: You went through the various articles and 14 you said: Thus, with the exception of those paragraphs, the 15 article is relevant to show the dissemination of Mr. Sattar's 16 statement as well as the knowledge, intent, and state of mind 17 of Mr. Sattar and Mr. Al-Sirri. That is to say, your Honor 18 confronts the very dissemination issue that the government now 19 raises and made a ruling with respect to the redaction. So 20 that is, at any rate, what I understood. 21 The article itself offered not for the truth has been 22 problematic from the beginning because it attributes 23 statements -- and this last paragraph particularly does to 24 Mr. Sattar, who is quoted. And yet in the part that the Court 25 has allowed in evidence, there is a statement attributed to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6921 4A5MSAT6 1 Ms. Stewart who clearly was not interviewed for the article 2 and, therefore, that statement had to come from somewhere else. 3 And there is a real issue as to whether Ms. Stewart will ever 4 be able to cross-examine that declarant. The Court has ruled 5 sufficient, a limiting instruction. But the more of this that 6 we let in, the more the nonhearsay purpose can be blurred. 7 And that's why we suggest that the Court was correct 8 in the first instance, that the government did raise the 9 dissemination theory, that it obtained a ruling, and that 10 circumstances have not materially changed. 11 MR. BARKOW: Your Honor, I will make one very brief 12 point. I think that the Court's analysis on paragraphs 1 13 through 3 of the article was based in part on the fact that 14 they tracked the transcript 1221X. And it was -- the 15 government kind of confesses fault here. We did not direct the 16 Court's attention to the particular part of 1221X at that time 17 that I just read to the Court. And it is our belief that when 18 that is compared to paragraph 6 it also tracks the content. We 19 didn't mention it then. We became aware of it subsequently and 20 we are bringing it to the Court's attention now. And so we did 21 not fully air the issue from our perspective at that time. 22 THE COURT: You also didn't raise the issue that the 23 article was found in the search of Mr. Yousry's home. And you 24 had asked me to rule on the article as a free-standing article 25 simply by a newspaper article which is self-authenticating, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6922 4A5MSAT6 1 then look at the question of whether there is an evidentiary 2 basis to admit the article. And I will look again at the sixth 3 paragraph and what's being offered to me. 4 Having been found in the search of Mr. Yousry's home, 5 the sixth paragraph would be admissible, in any event, against 6 Mr. Yousry. 7 MR. BARKOW: We agree, your Honor. I don't think that 8 Mr. Ruhnke has an objection on that score, but I don't recall 9 for sure my conversation with him. 10 MR. RUHNKE: Your Honor, it was found during the 11 search of Mr. Yousry's home. And if the government offers it 12 solely on the purpose of potentially he knew about this 13 statement, I don't see where I would have an objection. 14 THE COURT: 549 hasn't otherwise been admitted, hasn't 15 been offered? 16 MR. BARKOW: That's correct, your Honor. 17 THE COURT: It would be offered as an exhibit now 18 found in the Yousry search. And the question is, subject to 19 what instructions? 20 MR. BARKOW: That's correct, your Honor. Just to aid 21 the Court in the Court's review, I found the page that I read 22 from in the transcript, 1221X; I believe, the wraparound 23 between pages 10 and 11 of 1221X, the part that I read that 24 tracks the sixth paragraph. 25 MR. TIGAR: If we are de novo on the issue of 549, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6923 4A5MSAT6 1 your Honor, then I do press my Bruton objection. I don't see 2 that an instruction not for the truth can cure the attribution 3 to Ms. Stewart of a statement by some other declarant. There 4 are two degrees of hearsay here. One is the reporter, but the 5 other is somebody that knows Ms. Stewart is saying -- I assume 6 it is Mr. Sattar, but the article doesn't say that explicitly. 7 And I am not going to take that position. But there is a 8 declarant here out running around saying that Ms. Stewart says 9 certain things. And there are things about signing 10 declarations and so on. So that would be an additional ground. 11 And I know that I played my tape about the efficacy of limiting 12 instructions before, but I haven't played it with respect to 13 what I see here as a Bruton issue. 14 THE COURT: Mr. Barkow. 15 MR. BARKOW: Your Honor, the purposes for which this 16 exhibit would be offered, to show dissemination, not for the 17 truth of the matters asserted, and to show Mr. Yousry's state 18 of mind make it so that -- I don't believe it is subject to a 19 Bruton analysis. This is not being offered for the truth of 20 its contents. And so, therefore, Bruton is inapt. 21 THE COURT: I'll look at it again. 22 Anything else? I'll see you all tomorrow morning at 23 9:00. 24 (Adjourned to Wednesday, October 6, 2004, at 9:00 25 a.m.) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6924 4A5MSAT6 1 GOVERNMENT EXHIBITS 2 Exhibit No. Received 3 2400S . . . . . . . . . . . . . . . . . . 6826 4 2405-8 . . . . . . . . . . . . . . . . . 6827 5 2415-3 . . . . . . . . . . . . . . . . . 6839 6 2421-1 . . . . . . . . . . . . . . . . . 6871 7 2421-2 . . . . . . . . . . . . . . . . . 6876 8 2421S . . . . . . . . . . . . . . . . . . 6876 9 2405-4 . . . . . . . . . . . . . . . . . 6878 10 2415-1 . . . . . . . . . . . . . . . . . 6879 11 2415-1T . . . . . . . . . . . . . . . . . 6879 12 2415-2 . . . . . . . . . . . . . . . . . 6884 13 2203A, 2203AL and 2203AT . . . . . . . . 6891 14 2415-6 and 2415-6T . . . . . . . . . . . 6894 15 2415-10 . . . . . . . . . . . . . . . . . 6896 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300