7526 4aqesat1 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 26, 2004 8 9:15 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7527 4aqesat1 1 (Trial continuing) 2 (In open court; jury not present) 3 THE COURT: I have a motion in limine, and is this an 4 issue? 5 MR. TIGAR: Not today, your Honor. 6 THE COURT: Actually, I was asking -- 7 MR. TIGAR: Oh, I'm sorry. 8 MR. DEMBER: Your Honor, I'd like to look at this. 9 It's something that was a potential area that we might want to 10 cross-examine. There was no -- I hadn't made a definitive 11 decision as to whether or not I would. Obviously they are 12 teeing up the issue, apparently not for today, so obviously 13 we'd like to look at their letter and get back to the Court. 14 THE COURT: All right. You should do that by early, 15 early this evening. 16 MR. DEMBER: Your Honor, I will try at the very least 17 to look through the letter at the lunch break. And perhaps 18 after the lunch break we could take it up at some point in the 19 afternoon, if your Honor wishes, without me -- if your Honor 20 wants -- depending on how I want to deal with the issue. 21 THE COURT: Right. If it's not an issue -- 22 MR. DEMBER: Obviously, there's nothing to deal with. 23 THE COURT: -- just tell me it's not an issue. 24 MR. DEMBER: If, your Honor, we only have a few things 25 to add or really just very little to add in terms of what our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7528 4aqesat1 1 argument is, maybe we can do that orally, if your Honor wishes. 2 THE COURT: My sense is that it's better addressed in 3 writing. 4 MR. DEMBER: That's fine, your Honor. 5 THE COURT: If it's necessary. 6 MR. TIGAR: Your Honor, we received the Court's ruling 7 on the redactions and the rule of completeness. And in light 8 of those I have a request. 9 THE COURT: Sure. 10 MR. TIGAR: And that is that I be permitted, then, to 11 read Mr. Khuzami's opening; that is, the portion that you 12 marked. 13 But before I do so, and because Mr. Khuzami refers to 14 other defendants in the course of what we're going to hear, 15 that I be permitted to read from page 1580, line 16, down to 16 1581, line 2, which is Judge Mukasey talking about the separate 17 consideration of each defendant. It's that final standard 18 paragraph of instructions that he gives that just before -- 19 THE COURT: Sure. 20 MR. TIGAR: -- Mr. Khuzami speaks. 21 THE COURT: Sure. 22 MR. TIGAR: And that I be permitted to read that as 23 well, making clear it's Judge Mukasey that said it. 24 THE COURT: Yes. 1580, line 16, through 1581 -- 25 MR. TIGAR: 1581, line 3, your Honor, down to the word SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7529 4aqesat1 1 consideration. 2 THE COURT: Sure. Sure. I deliberately phrased my 3 order in such a way that it's really up to the defendant how 4 they wish to put this in. If you wish to read the government's 5 opening, you know, you're welcome to do that. If you prefer 6 the government to read the government's opening, you can do 7 that. It's your case. 8 The only reason for the other parts of the document 9 that are in evidence in any way is solely that the jury hear 10 both parts together. But the manner in which they hear it is a 11 matter for discussion. I mean, you know, I place that -- 12 MR. TIGAR: Yes, I know. I will read it and I'll -- I 13 have been a prosecutor before once or twice, and I'll do my 14 best. 15 THE COURT: No, but -- 16 MR. TIGAR: I didn't mean to make light of a serious 17 matter, your Honor. Will do. 18 THE COURT: I mean, I've had at least one other case 19 where there was discussion back and forth as to, you know, who 20 wanted to read the other parts, so I'm deferential to that. 21 MR. TIGAR: That was an issue in this case, your 22 Honor, early on. And the Court did make some rulings about it. 23 But our desire to read it, I think, is consistent with the 24 ruling your Honor issued earlier in this case. 25 THE COURT: All right. OK. Anything else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7530 4aqesat1 1 Otherwise, I'm just waiting for the jury. 2 (Pause) 3 THE COURT: OK. The jury needs a few minutes to fill 4 out the menu so I'll see you shortly. 5 (Recess) 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7531 4aqesat1 1 (At side bar) 2 THE COURT: The district executive wrote to Mr. -- to 3 one of the people who is here that -- about his hat and informs 4 him that it's OK to wear his hat; that the Court understands 5 it's a sign of his religious conviction; that he's a member of 6 the Society of Friends and the hat is an article of his 7 religious conviction. And so the person presented the note to 8 the CSOs, and that's why the person is wearing his hat in the 9 audience. 10 And I wanted to bring it to your attention. And the 11 parties are welcome to look at the letter that was sent to -- 12 that the district executive sent, OK? 13 MS. SHELLOW-LAVINE: Are we going to mark this as a 14 court exhibit, your Honor? I don't think so -- 15 THE COURT: I wasn't going to. 16 MS. SHELLOW-LAVINE: That's fine. I just didn't 17 know -- 18 THE COURT: I just wanted to make sure the parties saw 19 the letter and understood what was going on. 20 I don't see any reason to file this under seal. I 21 didn't disclose the person's name out of deference to the 22 person. Unless the parties see any reason to seal this -- 23 MR. MORVILLO: Government sees no reason to. 24 MR. PAUL: No, your Honor. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7532 4aqesat1 1 (In open court; jury not present) 2 THE COURT: The parties agreed yesterday that 2009A is 3 admissible only against Ms. Stewart and Mr. Sattar. And I take 4 it I should remind the jury of that the first time that 2009A 5 is mentioned? 6 MR. DEMBER: We agree, your Honor. 7 MR. RUHNKE: We do agree, your Honor, yes. 8 Your Honor, I'm wondering about the use of the phrase 9 "admissible against" in that context; whether the instruction 10 should be that the exhibit is considered relevant only as to. 11 I don't think it's being offered against Ms. Stewart at this 12 point. 13 THE COURT: I'm happy to say is relevant only with 14 respect to the exhibit, right. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7533 4aqesat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. Good 3 to see you all. 4 All right. Ms. Stewart is on the stand. 5 Mr. Fletcher? 6 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 7 are still under oath. 8 LYNNE STEWART, resumed. 9 DIRECT EXAMINATION (Continued) 10 BY MR. TIGAR: 11 Q. Ms. Stewart, yesterday several times you referred to the 12 rules that lawyers follow. Now, what rules are you referring 13 to? 14 A. These are ethical rules which we -- which are part of the 15 rules of each appellate department in the State of New York. 16 And they are codified. I think it's disciplinary rules, is the 17 exact title. And they are broad statements of what the 18 lawyers' ethical obligations are in representing persons across 19 the board. There is a special section about representing 20 people accused of crime. 21 Q. And that's what you're referring to when -- 22 A. That's what I was referring to, yes. 23 Q. Well, returning now, as we started to yesterday, to the 24 trial of your client, Sheikh Abdel Rahman. Were there opening 25 statements made to the jury in that trial? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7534 4aqesat1 Stewart - direct 1 A. Yes, there were. 2 MR. TIGAR: If your Honor please, I'd like permission 3 now to read portions to the jury and have Ms. Stewart read 4 portions to the jury from Government Exhibit 2009A in evidence. 5 THE COURT: All right. Ladies and gentlemen, this 6 exhibit is relevant only for Ms. Stewart and Mr. Sattar. 7 Q. Now, Ms. Stewart, before I ask you about what you said to 8 the jury in that case, I want to read out first a short part of 9 what Judge Mukasey, the presiding judge, said to the jury and 10 then some of what the prosecutor said in their opening 11 statement. 12 Beginning at page 1580, line 16, Judge Mukasey said, 13 "One last subject before we hear the government's opening. I 14 referred several times today and earlier to all of those who 15 are charged in this case collectively as the defendants. And 16 it may be that I will use that word or that expression again 17 during this trial. But from your standpoint as jurors, 18 understand that there is no such thing as the defendants as a 19 group. There are 12 individual people on trial here. They are 20 being tried together because it is convenient to do it that 21 way. But each of them, understand, is entitled to separate 22 consideration before you. In essence, each of them is entitled 23 to his own trial before you, so please give each of them your 24 separate consideration." 25 Now, Ms. Stewart, in your experience as a trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7535 4aqesat1 Stewart - direct 1 lawyer, is that the standard sort of instruction that a judge 2 gives to the jury in a multidefendant trial? 3 A. It is. 4 Q. And will you share with us, do you as a lawyer try to 5 discuss with the jurors giving independent and separate 6 consideration? 7 A. It's of utmost importance. And in this case, because the 8 Sheikh's case was very distinct from his codefendants, it was 9 very important that the jury be able to focus on his case 10 separately and together with everyone else's, but understanding 11 that he had a like and separate consideration. 12 Q. I'm now going to begin reading from the opening statement 13 of the government, Mr. Khuzami. That's the prosecutor you 14 mentioned yesterday, is that right? 15 A. Yes, that is. 16 MR. TIGAR: And I'm reading the -- some excerpts here: 17 Ladies and gentlemen, this is a case about war. The 18 enemy in this war was the United States of America. The 19 battlefield in this war was the streets and the buildings and 20 the tunnels of New York City. The weapons in this war were car 21 bombs and terrorism and homemade explosives. The soldiers who 22 fought this war are seated before you in this courtroom. They 23 called their war jihad. 24 One of the plans involved driving car bombs into the 25 Lincoln and Holland Tunnels. The plan involved driving those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7536 4aqesat1 Stewart - direct 1 cars and then pretending they had engine trouble and abandoning 2 them and then fleeing in a backup car. And as that abandoned 3 car sat in the tunnel with the traffic backing up behind it, 4 the timer inside was going tick, tick, tick until the bomb is 5 detonated five minutes apart, and the people trapped in their 6 cars drowned as the tunnel crashed down around them. 7 Other targets in this war was the United Nations. The 8 plan there was to drive car bombs into underground parking 9 garages beneath the building using diplomatic license plates so 10 they could enter without suspicion. Another target was the FBI 11 headquarters, 26 Federal Plaza. The plan there was to use a 12 Uzi machine gun to kill guards posted outside, drive the cars 13 into the underground garage and then flee in a backup car. For 14 both of those buildings, the hope for those soldiers was that 15 they would collapse and fall down. 16 Who was this army? Why were they fighting this war? 17 What is jihad? 18 I'd like to answer the first question first by 19 introducing the soldiers to you right now. The first one is 20 this man, Sheikh Omar Abdel Rahman. He's the leader of this 21 Jihad Army, and even though he is blind, you will learn that he 22 sees with a clearer vision than most people with perfect 23 eyesight. 24 What he sees is the elimination of the State of Israel 25 and the overthrow of the government of Egypt, and his return to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7537 4aqesat1 Stewart - direct 1 Egypt as one of its primary leaders. 2 What he also sees in that vision is the United States 3 as an obstacle to that dream because of this country's support 4 for Egypt and its policies in the Middle East. So he used this 5 group, this band of radical followers to conduct a war of 6 terrorism against the United States so that they could 7 intimidate this country into changing its policy. As Sheikh 8 Omar Abdel Rahman will tell you himself in this very courtroom, 9 we are terrorists and we wear that title proudly. 10 Now, as the head of any criminal organization who 11 controls and influences others, Sheikh Omar Abdel Rahman did 12 not fire a gun himself, did not build a bomb himself, did not 13 drive a car into a tunnel himself. But what he did was far 14 more dangerous. What he did was convince the group of 15 followers, Christians, Jews and Americans, the State of Israel 16 were their enemies. You will learn that he used this band to 17 conduct the war of terrorism, that he was consulted about which 18 targets are permissible, and you will learn he protected this 19 organization from infiltration by the United States government, 20 particularly the FBI. 21 In this opening I hope to just outline for you the 22 government's case. The purpose of this is simply when each 23 witness gets on the stand and each piece of evidence comes in, 24 you'll have an idea of how it fits into the greater whole. I'd 25 like to start to talk to you today about how these men came to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7538 4aqesat1 Stewart - direct 1 be in this courtroom today. 2 I refer to them as the Jihad Army or the Jihad 3 Organization, although they didn't refer to themselves that way 4 and they didn't wear uniforms that said that. But those labels 5 are simply a shorthanded way of describing for you these 6 individuals who shared a common interpretation and common 7 belief under the Islamic concept of jihad that was advocated by 8 Sheikh Omar Abdel Rahman. 9 Jihad means struggle, but these defendants defined it 10 in the extreme; not just a struggle to live a virtuous or 11 disciplined life and to be a good Muslim, but a lifetime 12 struggle to take up arms and confront and fight Jews and 13 Christians, Americans, anybody they saw as the enemy of Islam. 14 It was a perpetual state of war and they saw the United States 15 as an enemy of Islam because of its policies in the Middle 16 East. 17 Sheikh Rahman arrived in the United States in 1990, 18 but even before that time the Jihad Army was organized and 19 trained in this country. Soldiers reported to him about their 20 progress of military training camps and in firearms progress 21 and practice. And he in turn gave them guidance on how to 22 resolve their disputes and how to organize their affairs. 23 You will also learn in this trial, ladies and 24 gentlemen, that within the Jihad Organization murderers are 25 heroes. They are people to be revered, and that's what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7539 4aqesat1 Stewart - direct 1 happened to Mr. Nosair for the murder of Rabbi Kahane. After 2 his arrest, members of the organization paid homage to him in 3 his jail cell, and Nosair basked in his new-found glory. But 4 there was more going on than just paying homage to the jihad 5 hero, because in this jail cell this group was planning more 6 and more acts of terrorism. 7 Nosair was no longer interested in fighting one on 8 one, with one gun to kill one man. Now he had a plan to fight 9 the war on many fronts, 12 bombs exploding across New York 10 City, a plot to assassinate the judge who presided over his 11 trial, a plot to assassinate Jewish leaders who had criticized 12 him for his murder of Rabbi Kahane. 13 It was to be a full-scale war of urban terrorism 14 against the United States. You will learn Mr. Nosair was well 15 prepared for such a war. There were items seized from his 16 house after his arrest. There were bomb manuals, and there was 17 terrorist paraphernalia, and there was one document in 18 particular that called upon the group to destroy the enemies of 19 Allah by blowing up the pillars and the tourist places, and the 20 statues and buildings where the people meet. And that's 21 exactly what Nosair was planning to do from his jail cell two 22 years later. 23 Nosair gave out orders for this bombing plot. He 24 ordered Mr. El-Gabrowny, his lieutenant, to get bomb detonators 25 and a safe house. He instructed Dr. Rashid, his supplier of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7540 4aqesat1 Stewart - direct 1 weapons, and asked for his advice on what type of explosives 2 they might use. Nosair told him to contact Sheikh Omar Abdel 3 Rahman and get his blessing for this plot, because the group 4 knew that the plans could not be carried out unless he approved 5 them and that they were in conformity with their twisted 6 interpretation of jihad. 7 Nosair also placed Mr. El-Gabrowny in charge of the 8 plot to break him out of jail. It could be no surprise to you, 9 ladies and gentlemen, nine months later on in February 1993 a 10 1200-pound bomb ripped through the World Trade Center. 11 That crime was not a specific count in this 12 indictment, but it is very much a part of the war against the 13 United States that these defendants were a part of, because the 14 men who mixed that bomb and drove that truck were part of the 15 same army as the defendants who are seated before you. 16 You will learn that one of the men who blew up the 17 World Trade Center, Mohammed Salameh, the man who rented the 18 yellow Ryder van, travelled to Attica to visit Nosair just days 19 before the bombing. He was arrested with a passport photo of 20 Nosair, and that photo matched the photo that was on the phoney 21 passports Mr. El-Gabrowny had when he was arrested days after 22 the bombing. When he was arrested, he assaulted law 23 enforcement agents in an effort to try to keep them from 24 getting their hands on those passports. 25 Another World Trade Center bomber Mahmud Abouhalima, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7541 4aqesat1 Stewart - direct 1 brought a sample of his test bomb to this man Siddig Ali. You 2 will learn Siddig Ali's own words, how he hugged Mahmoud 3 Abouhalima after he found out he had blown under the World 4 Trade Center in which six innocent Americans were killed, and 5 how Siddig Ali then wrote letters to his friends in the Sudan 6 to give Abouhalima a place where he can hide. 7 Sheikh Abdel Rahman also did the things you would 8 expect the head of a criminal organization to do in the wake of 9 the World Trade Center bombing. He lied to the world to 10 protect himself and to protect the soldiers in his army. After 11 they were arrested, he told the world on TV that he didn't know 12 Mahmud Abouhalima, even though he knew him very, very well. 13 And he told the world he didn't know the other members of the 14 Jihad Army. And the proof in this trial will show that he knew 15 them very, very well. 16 This case, ladies and gentlemen, is very much about 17 how other soldiers in the Jihad Army, the men sitting before 18 you, worked to make good on those threats and promises of more 19 terrorist activity. 20 In particular, there is one man who worked to make 21 good on those threats. He is Siddig Ali. Siddig Ali first set 22 his sights on President Mubarak of Egypt. Within weeks after 23 the World Trade Center bombing, three of those responsible had 24 been arrested and one, Mahmud Abouhalima, had been ordered 25 returned to the United States by President Mubarak where he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7542 4aqesat1 Stewart - direct 1 would stand trial. Siddig Ali saw this as nothing less than 2 treason. In his mind this man was a jihad hero to be revered, 3 not a criminal to be brought back to stand trial. 4 So he decided to avenge that action by planning to 5 assassinate President Mubarak in April 1993 during a visit to 6 New York City. He knew that he had Sheikh Rahman's blessing to 7 murder Mubarak; that is, it was a permissible act of jihad, and 8 warmed with that approval he came up with an assassination 9 plan. 10 In one plan he and his assassination team would dress 11 up as room service waiters, sneak into Mubarak's hotel room and 12 spray that suite with automatic machine gun fire. In another 13 plan they would steal a UPS truck and drill a hole in the side 14 while a sniper pointed his rifle out as he murdered him as he 15 walked into the hotel. 16 Ultimately, Siddig Ali was forced to abandon this plan 17 when word leaked to the FBI. That conspiracy is one of the 18 crimes that is charged in this case. The leak about the 19 Mubarak assassination plan combined with the capture of Mahmud 20 Abouhalima in Egypt led the group to be very concerned that an 21 informant had infiltrated their midst. Some of them even 22 accused Siddig Ali of being that informant, because he was 23 involved in both the Mubarak plot and he knew Mahmud Abouhalima 24 was in Egypt, and when the group became concerned that there 25 was an informant, Sheikh Omar Abdel Rahman went to work. As SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7543 4aqesat1 Stewart - direct 1 loud and as long as he denied in public he knew these jihad 2 soldiers, you will learn behind the scene he was doing 3 something very, very different. 4 Behind the scene he did the real work of a criminal 5 boss. He worked to protect the organization, his organization, 6 from infiltration. And he ordered Siddig Ali and others to sit 7 down in a minitrial with him presiding as judge to find out who 8 the informant was to try to protect the organization. 9 But even after Mubarak plot had been thwarted, Siddig 10 Ali was not finished. He came up with a battle plan for the 11 Jihad Army so horrible, so monstrous, so vicious that if it had 12 been successful, the lives of every person in this city and 13 this nation would be changed forever. That was the day of 14 terror, the bombing of the Lincoln Tunnel, the Holland Tunnel, 15 the George Washington Bridge, the UN headquarters and the FBI 16 headquarters in New York City. 17 Siddig Ali had one problem. He had the plan but he 18 didn't know how to build a bomb. So he approached the man 19 named Emad Salem and asked him if he would build a bomb. 20 Unknown to Siddig Ali, but fortunately for the rest of us, Emad 21 Salem was an informant for the FBI. Siddig Ali and Salem 22 agreed to rent a safe house in Queens which would be used to 23 make the bomb. Also unknown to Siddig Ali was that Emad Salem 24 rented that garage with the FBI's assistance so that it was 25 wired up for audio and video. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7544 4aqesat1 Stewart - direct 1 You will see those videotapes during this trial. We 2 will take you inside that terrorist bomb factory. Siddig Ali 3 had a second problem. He needed the boss' OK. Emad Salem went 4 to Sheikh Omar Abdel Rahman. Salem told Sheikh Rahman that 5 they were planning a strike more devastating than the World 6 Trade Center bombing, and when Salem told Sheikh Rahman about 7 the United Nations, Sheikh Rahman told him that the United 8 Nations bombing was not against the rules. And you will learn 9 that soldiers in this Jihad Army had to check with Sheikh 10 Rahman to make sure a terrorist target was not forbidden. 11 In this case you will learn that Sheikh Rahman did not 12 forbid the bombing of the United Nations but recommended 13 against it, not because he had any problems with terrorism; far 14 from it. He just had a better idea. He told Salem to look for 15 a plan to bomb the American military, to keep it in the army. 16 After getting the boss' OK, the planning for the day 17 of terror continued in May and June of 1993. Siddig Ali 18 introduced Salem one by one to the other members of the Jihad 19 Army. 20 Fortunately, ladies and gentlemen, the terrorist plans 21 were never completed because in the early morning hours of 22 June 24, 1993, agents with the joint terrorist task force 23 busted down the door of that Queens safe house. They arrested 24 eight people that night, five inside the safe house. It took 25 them another month to capture Wahid Saleh, who was hiding out SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7545 4aqesat1 Stewart - direct 1 to escape capture. 2 There are a number of charges in the indictment before 3 you that arise out of this day of terror plot in the spring of 4 1993. 5 You may be asking yourselves, how does the government 6 intend to prove these charges? You heard Judge Mukasey tell 7 you that the government has the burden of proof beyond a 8 reasonable doubt. The government had that burden of proof when 9 you first walked in that door into this courtroom, and we will 10 continue to have it until you walk out that door after having 11 returned your verdict. It never shifts to the defendants, and 12 it is a burden that we welcome. 13 The government is going to present a lot of witnesses 14 to you in this case and a lot of witness evidence. One witness 15 that you are going to hear a lot about is a man named Mohammed 16 Salem. Salem is the informant who infiltrated this conspiracy. 17 The government first approached him to work on an intelligence 18 investigation having nothing to do with this case. An 19 intelligence investigation is different from a criminal case in 20 that its primary function is to gather information. It is not 21 always the intention in such cases to prosecute people in a 22 court of law like this. 23 At the government's request, Salem began to infiltrate 24 this conspiracy. It attended Nosair's state trial for the 25 murder of Rabbi Kahane. He convinced El-Gabrowny and others SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7546 4aqesat1 Stewart - direct 1 that he shared their extremist views and that with his military 2 background and his weapons expertise, he could be useful to 3 them in their plans. He continued to gain their trust until 4 finally Nosair from his prison cell asked him to participate in 5 this plan to blow up 12 buildings or tourist locations in 6 New York City, to assassinate the judge who presided over his 7 trial and to kill Jewish leaders. 8 But there was a problem. If the government wanted to 9 prosecute these people, they had to gather evidence and 10 Mr. Salem would have to take the stand and testify against 11 them. So the government proposed to Salem that he wear a 12 tape-recorder and that he take the stand if they were arrested. 13 You will learn that Salem had no problem with tape-recording, 14 but he had a big problem with being a witness. He had always 15 drawn the line in the sand that he didn't want to be an 16 informant if that meant getting on the stand and testifying in 17 court and subjecting his family to danger. In Salem's mind, 18 the danger that would result from testifying was real and he 19 was concerned. This conflict was not resolved, so in 1992, 20 Salem backed off from Nosair and his associates and their plan 21 to blow up 12 buildings. 22 You will learn that the Jihad Army had plenty of 23 people to replace Salem, and the proof came nine months later 24 when the World Trade Center blew up. That changed the way 25 everybody thought. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7547 4aqesat1 Stewart - direct 1 Faced with those threats the government had to do 2 something. They needed someone on the inside of this terrorist 3 ring to stop what they had already promised was going to 4 happen. But you can't just click your heels and get from the 5 inside of a terrorist ring. You need someone who speaks their 6 language; not the language of Arabic, but the language of hate 7 that fuels them. It can be impossible to infiltrate such a 8 group. You can't just send a reporter or Tom Brokaw in there 9 and find out what is going on. 10 So the government responded in the best way it could, 11 and that is, it went back to Emad Salem, who was already known 12 and trusted by members of this organization. And Salem, after 13 much wrangling, decided to cooperate, and he decided to wear a 14 tape-recorder and he decided to be a witness. 15 Salem did not come cheap. You will learn that he 16 would be paid in excess of $1 million by the time his 17 cooperation with the government is complete. Some of you will 18 think that is a lot of money, and you will be right. Some of 19 you may think that he sold himself too cheap and that it would 20 take a lot more than that to do what he did. 21 And you will see his contract. You will see that some 22 of the money is to replace lost income because he was working 23 for the government. And some of it is just a flatout reward. 24 Forget the accounting. The bottom line is that it is a lot of 25 money. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7548 4aqesat1 Stewart - direct 1 But the tragic question after the World Trade Center 2 bombing was whether or not the government could afford not to 3 spend that money. That one incident alone cost half a billion 4 dollars and, more precious than that, six innocent lives. It 5 is still a lot of money that he was paid, though, and it is 6 important that you know that. 7 There are other things you need to know about Emad 8 Salem. You will hear about it from the government and you will 9 certainly hear about it from the defendants. Salem, for 10 example, never completely cut his ties with Egypt. You will 11 find out that, sometimes with the government's knowledge and 12 sometimes without, he stayed in touch with his old friends in 13 the Egyptian military. And he advised them about some of the 14 things that were going on in this investigation; things like 15 Sheikh Omar Abdel Rahman's statement to him that he should 16 assassinate President Mubarak of Egypt. 17 You will also learn in this case that Salem 18 tape-recorded a lot of people; not just the defendants planning 19 their acts of terrorism, but he recorded the defendants, family 20 members, friends, his exwife, even the government agents who 21 were handling him over a home telephone recording system that 22 he had. He even recorded his calls to Paragon Cable when he 23 ordered pay-per-view movies. 24 More important in all these things is honesty. You 25 will learn that Salem has not always been truthful, especially SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7549 4aqesat1 Stewart - direct 1 when talking about himself or his background. Although there 2 are other examples, the most significant occurred when he 3 appeared as a witness in a New York State trial. He took an 4 oath to tell the truth and he lied when he was asked questions 5 about his background. He told that jury that he was part of an 6 elite service unit back in Egypt and that he had been wounded 7 when President Sadat was assassinated in 1981. Those things 8 were not true, and they were stupid things to lie about. 9 The case he was testifying about was a car accident on 10 the West Side Highway. It wasn't about political assassination 11 in Egypt. But anytime someone lies under oath it is important. 12 It is important that you know that, and it is important that 13 you consider that. 14 What all this means is that you're going to hear a lot 15 of things about Salem that you are not going to like, and it is 16 important that you consider these things when you decide 17 whether or not you believe him. It is also important that the 18 defendants get a fair trial and that you be demanding when you 19 listen to his testimony. 20 The government invites you to do exactly that. Listen 21 to his testimony and see how it stacks up again the other 22 evidence in the case. That is, look for corroboration. Look 23 for other evidence independent of what he testifies about that 24 tells you whether or not he should be believed, because by the 25 end of this case you will learn, ladies and gentlemen, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7550 4aqesat1 Stewart - direct 1 every important thing he has to say about this case is 2 corroborated, is backed up on an audio tape, a videotape and by 3 another piece of evidence. Let me give you some examples. 4 He will tell you that Omar Ahmad Ali Abdel Rahman 5 asked him to look for a plan to attack the American military, 6 and he will tell you that Sheikh Rahman presided over a little 7 minitrial in an effort to find out who the informant was. Can 8 that be true, can Sheikh Rahman be ordering an attack on the 9 American military? The answer is yes. You know that Salem can 10 be believed when he tells you that because it is on tape. 11 These tapes are mostly in Arabic, so rather than 12 hearing the tapes, you will be given a document in English so 13 you can see with your own eyes the work of Sheikh Abdel Rahman 14 telling Salem to look for a plan to attack the American 15 military. 16 Salem will testify that Nosair and El-Gabrowny were 17 planning in 1992 to blow up 12 buildings across New York City, 18 to break Nosair out of jail, and that Nosair instructed 19 El-Gabrowny to get stun guns as part of the plot. Is this 20 true? The answer is yes. When the agents first found 21 El-Gabrowny, they found five fake passports with pictures of 22 Nosair, his wife and the rest of his family, with fake names, 23 to be used to allow them to flee the country after the 24 breakout. They found the negative of the photograph of Nosair 25 in El-Gabrowny's house along with the stun guns. You will see SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7551 4aqesat1 Stewart - direct 1 those passports, you will see those stun guns, you will see the 2 photographs. That is corroboration that tells you that Emad 3 Salem can be believed. 4 Another example. Salem will tell you that he and 5 Siddig Ali drove the Holland and Lincoln Tunnels to map out the 6 best place to place the bombs. Did that really happen? It 7 did, because you'll see a videotape of that chilling ride, 8 where they talk about where in the tunnel to put the car bomb 9 and what will happen when it explodes. You'll see this 10 terrorist's home video, the video Siddig Ali thought the world 11 would never see. You will think a lot of things when you see 12 that video, and one thing it will make you think is that Emad 13 Salem can be believed. 14 Another example. Salem will tell you Dr. Rashid 15 offered to get detonators. You will hear his own words on tape 16 stating, I haven't been successful yet, but I'm going to keep 17 on trying because it's my duty. The tape was made from 18 Rashid's telephone, and when the agents searched a building he 19 had rented, they found cannon fuses and military paraphernalia 20 and other evidence. And it is with those telephone calls and 21 that type of evidence that you will know that Salem can be 22 believed. 23 More examples of corroboration. Salem will tell you 24 about Fares Khallafalla and Tarig El-Hassan and Fadil and Amir 25 Abdelgani. He will tell you Fares Khallafalla bought the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7552 4aqesat1 Stewart - direct 1 timers, that Tarig Elhassan consulted the engineers, and that 2 Amir and Fadil Abdelgani got fuel oil and brought it to the 3 safe house. Is that true? You will know it's true because 4 you'll see a tape of Fares Khallafalla purchasing the timers. 5 You will see a tape and read the conversation of Tarig ElHassan 6 talking about the engineering and the weak sides and strong 7 sides of the bridges and tunnels. 8 There are photos of Fadil Abdelgani and Amir Abdelgani 9 purchasing the fuel oil. There's a videotape of them 10 delivering it to the safe house. There are videotapes inside 11 the safe house where these defendants and others were mixing 12 the bomb and holding the Uzi and talking about battle plans and 13 talking about jihad. That tells you that Emad Salem can be 14 believed. 15 Another example, Salem will tell you that he met with 16 Mohammed Saleh, the man who owned the Yonkers gas station, and 17 that when they told him what they were planning on doing, he 18 sketched out on a piece of paper what the targets were. Salem 19 will tell you that he then ate the piece of paper to destroy 20 the evidence. Did that happen? The answer is yes. You know 21 that Salem can be believed when he tells you that because you 22 will see a translation of that conversation, and you will see 23 where Siddig Ali orders Salem to eat the piece of paper. 24 A final example, Victor Alvarez and Wahid Saleh. 25 Salem will tell you they agreed to get cars to carry the car SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7553 4aqesat1 Stewart - direct 1 bomb. And he will tell you Alvarez supplied the machine gun to 2 be used by the Jihad Army to use for protection. Is that true? 3 Yes. You will read the translations of the considerations 4 where they agree to get the cars, and you will see the machine 5 gun and you will see in this courtroom. 6 There are many examples of how Emad Salem can be 7 corroborated. The bottom line is, while there are some things 8 that won't make a pretty picture, there's concrete 9 corroboration of every important thing that he tells you. And 10 you will know that these defendants were planning a day of 11 terror, the likes of which the world had never seen. In the 12 end you will have witnesses and tape-recordings and other 13 evidence that will tell you that these defendants are guilty of 14 the crimes they are charged with. 15 May I have just a moment, your Honor. 16 THE COURT: Yes. 17 MR. TIGAR: Your Honor, I must have made a wrong mark 18 on my copy. I think I'm to start again at 1612, line 5. 19 THE COURT: I believe that that's right. 20 MR. DEMBER: Yes, your Honor. 21 MR. TIGAR: All right. Thank you, your Honor. 22 I want to thank you for your patience. And before I 23 sit down I would like to make just one final point. I've told 24 you what this case is about. I would like to tell you what the 25 case is not about. It is not about the rightness or wrongness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7554 4aqesat1 Stewart - direct 1 of anyone's religious beliefs. It doesn't matter whether you 2 believe in Islam, Christianity, Judaism, other religions, no 3 one's religion. It's nobody's business, so long as they don't 4 murder anybody who believes differently than they do. 5 Another thing this case is not about, it is not about 6 the great political and social issues of the day. People will 7 try and tell you otherwise. It doesn't matter what anybody 8 thinks about the great issues of the day. And no matter what 9 anyone tells you, that is not what you are here to decide. 10 In the end, it is a simple case. As charged in the 11 indictment, these defendants were planating a war of urban 12 terrorism against the United States. And they sought to 13 slaughter men and women of this city as they drove to and from 14 New York and New Jersey, or as they sat in office buildings 15 with, almost literally, time bombs ticking in their garages. 16 Thank you. 17 Q. Ms. Stewart, that's a selection from Mr. Khuzami's opening? 18 A. As I remember it, yes, is it is. 19 Q. And you sat there in that courtroom, yes? 20 A. I did. 21 Q. Did that make an impression on you? 22 A. I think it's very impressionable. Of course it made an 23 impression. It was calculated to do so. 24 Q. And after Mr. Khuzami finished that opening, did you have a 25 job to do? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7555 4aqesat1 Stewart - direct 1 A. Yes. It was then my turn to speak to the jury. I 2 represented Sheikh Abdel Rahman. I was the lead counsel. I 3 was first called upon after Mr. Khuzami finished. 4 Q. Now, there were 12 defendants in that case that Judge 5 Mukasey sat, right? 6 A. That's right. One of them left fairly soon after the 7 opening address, so there were 11 that actually sat for the ten 8 months of trial. 9 Q. I'm not going to ask you to read 12 opening statements, 10 Ms. Stewart, but I would like to be clear that some -- did each 11 one of those 12 lawyers then deal with different parts of the 12 case? 13 A. Yes, and of course they had to also deal with the case as a 14 whole, since the government had an overarching conspiracy in 15 the case, plus individual charges against each of the 11 16 defendants. 17 Q. I wonder if you would do this for us, then. Would you 18 please read out for us the opening statement that you gave in 19 that case right after Mr. Khuzami gave his opening statement as 20 the first lawyer that was going to speak in that process. 21 A. I will. 22 Q. Thank you. 23 MR. TIGAR: And by the way, the jurors can probably 24 see Exhibit 2009. May I put one of these pages up, your Honor. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7556 4aqesat1 Stewart - direct 1 MR. TIGAR: Thank you. 2 Q. You notice there are four pages of transcript on each one, 3 do you see that? 4 A. Yes, that's how this works. 5 Q. They give you this to save paper? 6 A. It's a Minuscript. I guess. I hope it's to save paper. 7 Q. So we don't have a copy to scroll, I'll just ask you to 8 read it out, please. 9 A. Good people of the jury, during the course of this trial, 10 usually at the opening of the day, you will hear Ms. Schwartz, 11 who isn't here right now, but whom you know, the Court deputy, 12 call this case into the record. You will hear her say, USA 13 versus Abdel Rahman. 14 Abdel Rahman translated to the English -- to English 15 means the servant of God. United States of America versus the 16 servant of God. And the evidence will show you that his case 17 is before you not because of anything he did. He is, after 18 all, elderly, blind, diabetic with a heart condition. The 19 evidence will show you that he is charged based solely on his 20 words, words uttered as part of his duties as a Muslim cleric; 21 words uttered as religious teachings; words protected under our 22 Constitution. And he faces an ultimate judgment, a judgment by 23 you on these terribly serious fearful charges. 24 But before then there will be evidence, evidence to 25 show that the -- that the government is attempting to place him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7557 4aqesat1 Stewart - direct 1 in a frame. Why? Why, would you ask, would they do such a 2 monstrous thing? Because he is an outspoken critic, and he has 3 devoted his religious life to advocating for the suffering of 4 people at home in Egypt. He has advocated by any means 5 necessary, and that is not acceptable to this government. 6 During this trial you will learn, who is this servant 7 of God, Dr. Abdel Rahman? Why does the US government want so 8 badly to convict him? And what is the nature of their 9 so-called case, or should I say their lack of a case, the lack 10 of a case that you will ultimately hear? 11 First, who is Omar Ahmad Ali Abdel Rahman? He was 12 born into poverty in the Nile Delta in Egypt. He was blinded 13 at the age of ten months, and as such, his boyhood as a blind 14 child was spent in the mosque, where he became a prodigy, 15 because by age 11 he had memorized the entire Koran, the holy 16 book of Muslims, a book they believe contains the actual words 17 of Allah, God. 18 This prodigy then went on to spend 25 years of his 19 life in the universities of Egypt, ultimately receiving a PhD, 20 a doctorate from Al Ahzar University in Cairo in Islamic 21 jurisprudence, systems of law under the Muslim faith. You will 22 learn that Al Ahzar is like Oxford University. It is older. 23 Indeed, it was in existence before the United States of America 24 was even discovered. It was in existence before there was such 25 things as European states. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7558 4aqesat1 Stewart - direct 1 The evidence will show you that Dr. Abdel Rahman, not 2 content with the security of a career as a university professor 3 guaranteed to him by earning this degree, began to preach in 4 Egypt. He was both an imam, that is, a leader of prayer; and a 5 Sheikh, an Islamic religious scholar. To serve the people in 6 his congregation, he preached about what he believed was the 7 complete failure of so-called Muslim leaders in the Middle East 8 to govern in accordance with God's law. He spoke out about 9 corruption, the failure to serve people's needs and the fact 10 that when so-called Muslim leaders are oppressors, did I do 11 that? That other Muslims who are true to their faith are 12 entitled, are indeed required to revolt up and destroy the 13 oppressor, the tyrant. 14 This message was delivered in Egypt against Nasser, 15 against Sadat, against Mubarak. He termed them Pharaohs, the 16 Pharaohs, the unjust kings of Egypt. Self-appointed for life, 17 willing to give up Muslim land, he told his people of the greed 18 that lined the Swiss bank accounts while the children of Egypt 19 fed off the garbage in the dumps. You may imagine that this 20 led him into some difficulties, and these difficulties meant 21 for him prison, torture, trials. And although he has spent 22 years of his life in Egyptian jails and under house arrest, he 23 has never been convicted. 24 Then in 1990 he entered the United States with a valid 25 visa, came via Afghanistan, Saudi Arabia, the Sudan. Came to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7559 4aqesat1 Stewart - direct 1 the United States not to study -- he already had a doctorate -- 2 and not to enrich himself, as you will see. He could have been 3 a professor at any university in the Middle East, a secure, 4 respected position. No. He left his family, he left his 5 children. He came here to escape persecution, to escape 6 tyranny, just like our European ancestors immigrated, and just 7 like the slaves escaped on the underground railroad. 8 He came to speak. He came to explain his cases. He 9 came to this country. He believed was in love with freedom, 10 whose people protect those who have escaped from tyrants. He 11 came here to be free of Egyptian intelligence, spying, 12 following, arresting. Yet he is before you now accused and 13 indicted. 14 The evidence will show that he entered peacefully, 15 that he never violated any laws, big or little. The evidence 16 will show that he believed that visa was a sacred contract 17 between him as a Muslim and the United States of America for 18 sanctuary. 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7560 4AOMSAT2 Stewart - direct 1 A. "And he spoke in the mosques and he led the prayers. He 2 taught the children. He resolved disputes, thousands of 3 disputes between Muslims, and he studied Islam and he taught 4 Muslims. He taught women's groups. He taught African 5 Americans. Most importantly, Dr. Abdel Rahman, the evidence 6 will show, continued saying and doing what has been said and 7 done by Muslim religious leaders for 1400 years. Does he wish 8 to return his people to the golden age to umma when Muslim 9 people lived as one under God's law? He does. 10 You will see through the long days and many months of 11 this trial a wholly man from another religion, perhaps very 12 different from what you know, from another world, indeed 13 perhaps from another century. But a person of absolute faith 14 and absolute rectitude. You are going to hear many videotapes. 15 You are going to hear many audiotapes such as the one that 16 beeps all the time of his preaching, of him answering questions 17 and of Emad Salem trying to lead him down a primrose path. 18 Some things he say will actually strike a responsive 19 cord in some of you, I am sure, when he lectures about Muslim 20 obligations to the poor, to the homeless. It is not that 21 different from cast your bread upon the waters. And when he 22 speaks of defending Muslims from losing life, land, homes, 23 family, it is not so different from, Blessed are those who 24 thirst after righteousness, or my rod and my staff, they 25 comfort me. But his faith does not believe and he does not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7561 4AOMSAT2 Stewart - direct 1 preach render onto Caesar what is Caesar's and unto God what is 2 God's. He believes there is a unit and he preaches that. And 3 he believes that one must be engaged in Jihad to be a Muslim, a 4 devout, a proper Muslim. Not a Jihad army. Jihad is an Arabic 5 word for struggle, the struggle internally to look at oneself. 6 It is not what the so-called scholars, the imams of the U.S. 7 Attorneys tell you. It is simply the Muslim duty to struggle 8 internally with self, and externally -- and if you are going to 9 write anything down in your notebooks, write this down -- 10 externally in defense of Islam. It has no element of the 11 aggressions Mr. Khuzami spoke of. Indeed, it is the noticeable 12 partner of another Islamic duty, to speak the truth. And this 13 is what the evidence will show placed the Sheikh here. He 14 spoke the truth and he is here to be judged by you. 15 The why of this case is also the how. How did he get 16 here? The evidence will show that Dr. Abdel Rahman, after 17 being here since 1990, preaching travel, talking, was the 18 subject of deportation in early 1993. Then in February 1993, 19 two weeks before the World Trade Center bomb, the government 20 put a wiretap on his phone and they listened to everything, 21 everything from February to June. You must understand that for 22 a blind man like Dr. Abdel Rahman the telephone is like his 23 window on the world. He talks on the phone 25 hours a day, 24 talking to people about their personal problems, advising them, 25 getting news from home, from Egypt, from family, friends, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7562 4AOMSAT2 Stewart - direct 1 political allies, from a son fighting in Afghanistan, making 2 arrangements, scheduling, calling the airlines. 3 And then the World Trade Center bombing takes place. 4 Is it on the wiretap? No. And he publicly denounces it, 5 publicly and often." 6 MR. TIGAR: There is an objection by Mr. McCarthy. 7 "THE COURT: Overruled. It is a statement of what the 8 evidence will show. Go ahead." 9 A. "And men were arrested for that and were tried, but he was 10 never charged. He continued to preach, and minister to his 11 people. 12 And then in June of '93, one night at midnight, the 13 FBI, while he slept, broke down his door, and even though they 14 found him alone, they handcuffed him and searched his apartment 15 in Jersey City for hours. And they seized and kept nothing but 16 audiotapes, videotapes, personal papers, his books, and you 17 will see from the photographs exactly how he was living. 18 And Dr. Abdel Rahman still continued his daily life, 19 his religious duties. He was not under arrest at that point. 20 He didn't go to Newark Airport and get on a plane and leave. 21 He kept on speaking the truth. 22 And then in July 1993, at a mosque in Brooklyn, after 23 Friday prayers, he was taken into custody. Not on this case, 24 no. Still on the deportation matter. And he was in jail and 25 powerful people, U.S. senators who wanted him in jail were told SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7563 4AOMSAT2 Stewart - direct 1 by January, Janet Reno, the Attorney General of the United 2 States, the boss of these young men, that there was not enough 3 evidence to charge him. Yet, two months later there is nothing 4 new developing, he is charged. He is indicted and not merely 5 charged. He is charged the leader, the head man, the person 6 responsible for everything. 7 Why? He has no disagreement with the American people. 8 His struggle is away from the U.S., with the leader of his 9 country, Mubarek, 18 years in power. Even FDR only had four 10 terms and then we rewrote the Constitution. But you see it is 11 easier for Mubarek because you see when he runs for office, he 12 is the only candidate and he gets two billion a year in U.S. 13 taxpayer money, more than any other country except Israel. And 14 instead of democracy and freedom, he keeps the money and gives 15 his people poverty. And to support this dictator in Egypt, the 16 U.S. did him a favor. They put Dr. Abdel Rahman in this case. 17 The strongest opposition: Jail. Did he disagree with U.S. 18 policy? He did. Did he conspire seditiously or otherwise? He 19 did not. 20 And they hadn't finished yet. They waited until May 21 of this past year, 1994, after he had been in jail for a year. 22 They went to the home of a paralegal working on the case where 23 he had stored his belongings after the search in Jersey City 24 and after he finally is incarcerated. And they went to the 25 home of this paralegal in Toms River, New Jersey and once again SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7564 4AOMSAT2 Stewart - direct 1 searched through those same belongings. And this time they 2 made no bones about it. They said what they were looking for. 3 If I can find it in here. They said they were looking for 4 audiotapes, videotapes, writings and documents, transcripts, 5 announcements, newspapers, magazines, press releases, books, 6 news bulletins, letters, cards, passports, diaries, ledgers, 7 journals, receipts, checks, sermons, commentary, teachings of, 8 interpretations by Omar Ahmad Ali Abdel Rahman and others. 9 Were they looking for detonators? Were they looking for plans? 10 They were not. They knew what they wanted. They wanted words 11 and words is what you will hear. 12 Is he a fundamentalist or is he a moderate, a middle 13 of the road? People who accuse him know only a smattering of 14 Islam. They do not know the heart or the brain. And the 15 evidence will show this, Jihad as a duty, he explained over and 16 over again, on those videotapes you will hear, as a duty, and 17 he told his listeners, go to Bosnia, go to Afghanistan, go to 18 Palestine, go to the Philippines, out of here, defend holy 19 land, Muslim land. He never said, go to the World Trade 20 Center, go to the Holland Tunnel. This is why he is before 21 you, labeled as a terrorist, because he urged people to act in 22 their own defense. He is a leader, a leader of thousands, 23 revered, respected, a man you will see does not change his mind 24 are every five minutes nor five miles away. 25 You must ask yourselves, is this the man, the evil SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7565 4AOMSAT2 Stewart - direct 1 criminal godfather the government has portrayed for you? Or is 2 he the shepherd of a flock, a large flock who he protects and 3 guides according to religious precepts. And most important, 4 and maybe it is the crux of this case, could he be held 5 responsible in a court of law for what others who may have 6 attended his mosque, his lectures are alleged to be doing? 7 He is charged with seditious conspiracy, with 8 conspiring to murder Mubarek, with the conspiracy to bomb the 9 bridges, tunnels, the U.N. and other places and solicitation. 10 How do they think they can prove this? They are going 11 to use the tapes. Mr. Khuzami told you that. Public and open 12 most of them are, seized from his home and the home of his 13 paralegal and other people. They are going to use the tapes 14 made secretly by the informant. Listen very carefully to 15 these. Mr. Khuzami has given you a preview, but you have to 16 hear the tone of voice in the very few times on thousands and 17 thousands of tapes. 18 And you have to consider Emad Salem. Never forget 19 that Emad Salem was working with Egyptian intelligence. And he 20 spied on the FBI while he was working for them. Who was using 21 who? Million dollars. Dirty money deals and throw something 22 into the Sheikh's house, he says to one of the handlers. 23 I could talk about Emad Salem for the whole time the 24 judge has given me, but I am sure my cocounsel will take care 25 of that as well. But remember, the evidence will show that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7566 4AOMSAT2 Stewart - direct 1 this prosecution is rotten at its core, because it is the 2 center furiously wheeling and dealing, or at least two 3 informant, Emad Salem and also a Mr. Haggag. These are not the 4 poor sad sacks desperate to get out of a terrible situation. 5 These are complex, vicious liars whose loyalties are divided, 6 confused, compromised, compromised by long-time grudges and by 7 Egypt, for with both of them the iron fist of that oppressive 8 regime, that Pharaoh criticized by Amnesty International will 9 show up again through these two. Most importantly, the moves 10 that they made to ensnare the Sheikh, the lies they told to 11 protect themselves. 12 If you want to see leadership, leadership as the 13 government mentioned, keep your eye on Emad Salem. And if you 14 want to see hatred, watch Haggag. 15 But these charges are terribly serious, as I said to 16 you earlier, seditious conspiracy. Dr. Abdel Rahman came here 17 to preach, to have a pulpit, to speak freely and practice his 18 religion without ending up in jail, and, guess what, he ended 19 up in jail. He needed this place of safety, calm. The judges 20 will tell you that in a conspiracy actions speak louder than 21 words sometimes, and the evidence here will show actions are 22 different from any words, and the Sheikh never took any actions 23 and the Sheikh never spoke any words that directed the actions 24 or approved the actions of others against the United States. 25 What motivation could he have possibly have had? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7567 4AOMSAT2 Stewart - direct 1 Next week President Clinton, who has been known to 2 change his mind, might say that Egypt has gone too far and 3 declared them to be public enemy number one. The policy 4 changes. The executive of the United States changes. What 5 then of sedition? He is also charged with conspiracy to murder 6 President Mubarek. The evidence will show that he has been 7 calling for the death of Mubarek and a popular revolution 8 uprising in Egypt for the last 18 years. Nothing new here. 9 And in history, you must know people have always called for the 10 death of the enemy, the unjust, the oppressive ruler, the 11 tyrant, kill Hitler, kill the Ayatollah, kill Saddam Hussein. 12 We even yell kill the umpire. Do we mean it? 13 He is also charged with soliciting criminal acts. It 14 isn't solicitation when evidence shows that it's speech, only 15 speech. The only solicitations you will hear in this case are 16 those of Emad Salem as he goes about his dirty business. 17 He is also charged, Dr. Abdel Rahman, with a criminal 18 agreement, conspiracy to bomb. Here the evidence will not 19 show, because there is no evidence. It just isn't so. There 20 is no common understanding. There is no knowing joining. 21 There is not even mere association unless preaching before 22 hundreds of people, some of whom may contain a defendant or two 23 is association. Not even knowledge without participation, 24 nothing, nada, no matter how hard they try. We, Mr. Clark, 25 Mr. Jabara, and myself, we defend an innocent man wrongfully SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7568 4AOMSAT2 Stewart - direct 1 accused, and the evidence will prove it. 2 All of this brings me, and I am happy to tell you and 3 I am sure you are happy, near the end of my opening statement. 4 But I earnestly beg of you, I plead of you, don't make up your 5 mind until you have heard it all. Suspend judgment. Start off 6 with a clean slate. You were handed these notebooks. They 7 were empty, clean, unwritten upon. You, too, should begin this 8 way, open to hear it all, weigh it all, decide it all, because 9 the reality is that this is not really an opening statement. 10 You have all been opened to for almost two years, every time 11 you read a news report or turned on the TV with Dr. Abdel 12 Rahman's picture in the red turban of his university, with 13 those dark glasses. 14 Some of you have had prior jury service and you know 15 that when you walk into the courtroom you know nothing. You 16 learn it all in the courtroom. They may not be so for you in 17 this case, but I ask you, to the extent you can possibly do it, 18 to wipe your mind free. Do that for all of these defendants. 19 You swore you would. 20 And while I'm on it, please also remember that the 21 defense, because the government has the burden of proof, always 22 goes last. The government opens first, they put on their case 23 first, they will examine their witnesses, and then we get to 24 cross-examine. Suspend judgment -- and I realize that we are 25 asking you to do that not just for a day sometimes or a week or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7569 4AOMSAT2 Stewart - direct 1 a month, but it may be for a whole season before you get to 2 hear the defense case. But you must do it, you must, or it is 3 not fair, and you swore to be fair. 4 Ultimately, this is what is at stake here, on trial, 5 people different from you and yet the same. Expressions of 6 religion and personal belief different from you, maybe 7 distasteful to you, but you have been selected by all of us to 8 well and truly try this case. 9 We will directly speak again many, many months from 10 now. Keep an open mind, listen fairly, suspend judgment. Only 11 then can you do justice, and that is all we ask. Because then 12 you will find Dr. Abdel Rahman, the servant of God, not guilty. 13 Thank you." 14 Q. Ms. Stewart, when you were reading that opening statement, 15 your voice demeanor, manner were different than what it is as 16 we are talking to each other. Why? 17 MR. DEMBER: Objection, your Honor. 18 THE COURT: Overruled. 19 A. I was, once again, assuming the role of a lawyer. I was 20 remembering and acting again as the lawyer and that's my 21 demeanor when I'm a lawyer. 22 Q. In that opening statement that you read you said some 23 favorable things about Sheikh Abdel Rahman. When you talk to a 24 jury, do you express your personal belief in the innocence or 25 guilt of your client? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7570 4AOMSAT2 Stewart - direct 1 A. No. That is off limits, absolutely, to a lawyer. We are 2 only permitted to express and argue of the evidence, the 3 evidence that is before them. The personal opinion does not 4 count for anything. 5 Q. I'd like to look at some of the exhibits that the 6 government has offered here that were offered at the trial of 7 Sheikh Abdel Rahman. You mentioned that there was -- in your 8 opening that there was a search in Toms River, New Jersey? 9 A. Yes. That was a search that was conducted long after the 10 arrest of the Sheikh at the home of paralegal Nabil Elmasry. 11 He has been mentioned in this trial in connection with the 12 watch. 13 MR. TIGAR: Your Honor, may I place on the Elmo for 14 the jury Government Exhibit in evidence 202T? 15 THE COURT: Yes. 16 Q. Ms. Stewart, this government exhibit sticker that my finger 17 is at, is that an exhibit sticker from the trial of Sheikh 18 Abdel Rahman and the other defendants? 19 A. It is. 20 Q. And this number over here that I'm pointing to, that's an 21 exhibit number from this trial? 22 A. It is. 23 Q. On the top here it says Elmasry search, audio translation. 24 What does that mean to you as you look back at that? 25 A. This is one of the speeches or sermons seized at Elmasry's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7571 4AOMSAT2 Stewart - direct 1 home in Toms River and this is the translation. It was an 2 audiotape apparently. 3 Q. Now, in this speech Sheikh Rahman -- Sheikh Abdel Rahman 4 talks about violence. And I want to put that up here because 5 the jurors have seen it. And it says: What kind of name is 6 this? Why are we afraid of it? Why do we fear the word 7 terrorist and so on? And the language that the jurors heard in 8 this case and the language that the jurors heard read in the 9 case that you did back in 1995. 10 As the Sheikh's lawyer and faced with this evidence, 11 what did that make you think? 12 A. Well, it clearly was not the most helpful of evidence to 13 have the client branding himself and proud of being called a 14 terrorist. But this was a fiery preacher. This is someone who 15 spoke bombastically. The whole sermon, the length of the 16 sermon, he is spewing. This was his speaking style. This is 17 very reminiscent of our own fundamentalist preachers which we 18 can hear pretty much on Sunday television. It was a style. It 19 was not meant to be taken literally, I don't believe, and that 20 is what I argued to the jury. 21 Q. In your opening statement you discussed -- you mentioned 22 Bosnia and Egypt and struggles in the Middle East. How did you 23 see your client's relationship to those struggles. 24 A. One prong of our defendant was that the Sheikh had never 25 urged that any Jihad be performed in the United States or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7572 4AOMSAT2 Stewart - direct 1 against the United States. His urge to Jihad were in the 2 fields of Muslim countries. This was something I learned after 3 I got into the case but that Jihad was performed as a defensive 4 action by Muslims to defend their lands, homes, property. It 5 was not an aggressive action. 6 Q. When you talked to the jury about these sermons, were you 7 expressing your -- a personal belief about whether violence was 8 justified in Bosnia or Egypt or anyplace else? 9 A. No. This was purely argument when I spoke to the jury. 10 This is arguing what seemed to me to be pretty clear, that this 11 was bombastic, that this was a lot of rhetoric in these 12 sermons. 13 MR. TIGAR: Your Honor, this is a transition point. 14 We have had a lot of reading. May we take a break now? 15 THE COURT: Sure. 16 Ladies and gentlemen, we will take a mid-morning 17 break. Please, please remember my continuing instructions. 18 Please don't talk about the case. Always remember to keep an 19 open mind. 20 I'll see you soon. 21 All rise, please. Please follow Mr. Fletcher to the 22 jury room. 23 (Jury not present) 24 THE COURT: See you shortly. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7573 4AOMSAT2 Stewart - direct 1 THE COURT: It occurred to me that we were going more 2 than an hour. And if you want to break every hour, I'm happy 3 to do it more regularly, or just wait for any convenient time. 4 MR. TIGAR: Your Honor, I'll watch the clock and make 5 a suggestion when we would like to. The reason I did it was 6 that after that reading I sensed that a couple of the jurors 7 were thinking, my goodness, we have done a lot of this now. 8 THE COURT: That's fine. 9 MR. TIGAR: I appreciate the Court's indulgence. 10 THE COURT: No problem. 11 It is now about 11:00. We go until about 12:45. So I 12 take it you would like a break some time before 12:45. 13 MR. TIGAR: Yes, your Honor, I certainly would. And 14 Ms. Stewart and I both would. 15 THE COURT: That's fine. I'll find the time. 16 MR. TIGAR: Shall Ms. Stewart resume the stand and we 17 can get started again? 18 THE COURT: Yes. 19 MR. TIGAR: And may I stand behind the lecturn? 20 THE COURT: Yes. 21 Let's bring in the jury. 22 (Jury present) 23 THE COURT: Ms. Stewart is on the stand. 24 Mr. Fletcher. 25 THE DEPUTY CLERK: Ms. Stewart, you are reminded you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7574 4AOMSAT2 Stewart - direct 1 are still under oath. 2 THE WITNESS: Yes. 3 THE COURT: Mr. Tigar, you may proceed. 4 MR. TIGAR: Thank you, your Honor. 5 BY MR. TIGAR: 6 Q. Ms. Stewart, we have been talking about that trial way back 7 in 1995. Was there a lot of media coverage of that trial? 8 A. There was an extraordinary amount of media coverage of that 9 trial, yes. 10 Q. And as counsel for Sheikh Abdel Rahman, did you communicate 11 with the representatives of the media? 12 A. I did. 13 Q. Are there rules, lawyer ethical rules about what you can 14 and cannot, should and should not do when you're communicating 15 with the media? 16 A. Yes, there are, particularly when a trial is impending or 17 being carried on. Those same rules of ethics and as 18 interpreted by certain cases also decree that you can't say 19 things that will influence a potential jury or a jury that is 20 sitting, that you cannot cross that line. And you can mete the 21 prosecutor's statements and indeed prosecutors regularly hold 22 press conferences. 23 So it is a balancing act and it is, once again, one of 24 the difficult things you do as a lawyer, is to make sure you're 25 not going over the line. One thing in our trial was that Judge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7575 4AOMSAT2 Stewart - direct 1 Mukasey kept a pretty close watch on who was saying what to the 2 press. 3 Q. Now, as a representative of your client, were you concerned 4 about his image in the media? 5 A. Yes. Lately, of late, it actually has become even more in 6 this particular circuit that a media spokesman or a publicist, 7 as they are now called, is entitled to the privilege. And that 8 means that they are under the umbrella of the lawyer. And when 9 they do publicity or speak to the media or generally speak out 10 at all, it is considered part of the lawyer's work. That is 11 why it is covered by the privilege. 12 And so as such, I also in '95 and in other cases that 13 I have covered or covered that I've handled been the lawyer 14 for, I have also done media. And I think I may have said 15 yesterday -- I certainly learned at the foot of the master who 16 did more media than probably any other lawyer before us and 17 that is William Kuntsler. 18 Q. Let me ask you about that. You say at some point in your 19 career you began to be involved in cases that had media 20 attention, is that right? 21 A. That's correct. 22 Q. Now, did you -- and were there certain lawyers that you 23 would try to emulate in their approach to the media and certain 24 lawyers that you would not try to emulate? 25 MR. DEMBER: Objection, your Honor, relevance. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7576 4AOMSAT2 Stewart - direct 1 THE COURT: Overruled. 2 A. I can't really say emulate. I felt it was very important 3 to be your own voice. I've always felt that as a lawyer. And 4 so while I learned a great deal about dealing with the press -- 5 in other words, understanding their role in this whole process. 6 They have a definite role in keeping the public informed. And 7 because our clients are so often locked away and unable to 8 respond to press, I did do a lot of press, and I learned from 9 the people around me. I wouldn't say I emulated one or the 10 other. 11 Q. Now, as you got into this case in late 1994, how would you 12 summarize or express the media view of your client? 13 A. I believe that he had been demonized by the press, that 14 that ever present picture that they presented of him in the red 15 turban with the dark glasses and the World Trade Center 16 pictured behind him was really an indelible almost part of most 17 people's memory in this city. 18 MR. DEMBER: Objection, your Honor, as to what's in 19 people's memory. 20 THE COURT: Sustained. 21 A. Shall I go on? 22 Q. No. Please. The objection is sustained. 23 Did you try to address this press coverage in the voir 24 dire of the jury? 25 A. We certainly did. We had individual voir dire by the judge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7577 4AOMSAT2 Stewart - direct 1 of what people had read and what effect it had upon them, and 2 it became part of the general decision-making process for those 3 people who had read things but were permitted or felt that they 4 could still serve and be fair. 5 Q. Now, did you think -- did you read a lot -- in preparing to 6 do the case, did you read newspaper articles and other media 7 coverage that had occurred? 8 A. Yes, very much so. I read a lot of newspapers. I'm also 9 aware that newspapers don't always get it right. But there are 10 sometimes -- there are kernels of truth and there are things 11 that give us an insight as to what questions what people are 12 asking. They give us as lawyers some way of taking the pulse 13 of the community and what's out there. So, yes, I've always 14 been, I guess like a lot of New Yorkers, a big newspaper 15 reader. 16 Q. Did you also have access in preparing for the trial to 17 Arabic media? 18 A. Not so much. I did have access to it, but at this time 19 Sheikh Omar was confined at MCC here in New York. He was 20 permitted to do interviews with the Arabic media himself. 21 There was no restraint upon that. They just had to get 22 permission from the institution and arrange a time to come in 23 and interview him. So he conducted his own interviews by and 24 large with the Arabic media. I basically dealt with the 25 American media and particularly that media which was not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7578 4AOMSAT2 Stewart - direct 1 permitted to take their cameras into the jail, the television, 2 et cetera. 3 Q. Do you speak Arabic? 4 A. No. 5 Q. Do you read Arabic? 6 A. I do not read Arabic. I know three or four words. I 7 think, as anyone who is associated with a language, you pick up 8 a word here or a word there. But, no, I don't speak it and I 9 don't read it. 10 Q. How did you get in touch with the Arabic language materials 11 that were going to be a part of your case? 12 A. Well, we had apparently those we have mentioned, three of 13 them here. There were additional paralegals. We also were 14 part of the general defense effort to translate Arabic 15 materials and Arabic conversations. We utilized a translation 16 service, and they provided us with transcripts of various 17 material. 18 We had an additional problem because of the Sheikh's 19 blindness. And that would be, we would get the materials and 20 then they would have to be reread to him because, of course, he 21 couldn't read the materials. They would have to be read to him 22 first in Arabic and then after we got the translation, I would 23 have questions I would want to ask him. So we had to do this 24 double kind of attention to just about every document in the 25 case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7579 4AOMSAT2 Stewart - direct 1 Q. Let me take a few minutes and ask about the situation. You 2 described the jail situation at MCC. Now, who had the right at 3 that time, 1994, '95, to go into that jail and visit your 4 client? 5 A. At that time it was his attorneys of record, which was 6 myself, Ramsey Clark, Abdeen Jabara, Larry Schilling had the 7 right to go in and visit him. He also had a number of 8 paralegals, Mr. Sattar, Nasser Ahmed. 9 Q. Mr. Sattar? 10 A. Yes. 11 Q. And you will look at some of those time sheets. Nassar 12 Ahmed? 13 A. Yes. 14 Q. That was the same Nasser Ahmed that was later involved in 15 the immigration case? 16 A. Yes. 17 Q. Who else? 18 A. Mr. Elmasry, his home being searched down in Toms River. 19 He was also a paralegal. We had investigators that worked on 20 the case. They worked on the case in conjunction with the 21 other defendants. But they also had leave to go and speak to 22 the Sheikh. 23 Q. When you say had leave, how would a paralegal or 24 investigator get the opportunity to go into the jail? Did 25 somebody have to sign an order? Did they have to be on a list? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7580 4AOMSAT2 Stewart - direct 1 How did that work? 2 A. As I said, when I came into the case I inherited the 3 paralegals. I believe they were appointed by the Court. There 4 is not a large group of Arabic-speaking paralegals who are 5 available to work on cases such as this. So basically it was 6 people who had volunteered to do the work, keeping their day 7 jobs. They were approved by Judge Mukasey. They were given 8 the seal of approval. I don't know if they had to make out an 9 application to be approved by MCC as well, or whether the 10 application -- just the judge's approval and appointment was 11 enough. I know sometimes you do have to get the jail to also 12 approve people. 13 But they were all appointed by Judge Mukasey. They 14 were all paid by the Criminal Justice Act under which indigents 15 are permitted to have certain services, including a lawyer. So 16 that was how they got to the jail. And they basically could 17 show up at the MCC. Eventually, it became on a 24-hour-a-day 18 basis because we had such problems with the time constraints 19 when we were on trial that originally we had to be out of the 20 jail by 8 p.m. But we got permission and then the jail 21 eventually did it for all the inmates to be able to come in 22 after 8 p.m. and stay until midnight if need be. 23 Q. You mentioned yesterday that your client had health 24 problems. How were those health problems dealt with when he 25 was at the MCC? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7581 4AOMSAT2 Stewart - direct 1 MR. DEMBER: Objection, your Honor, relevance. 2 THE COURT: Overruled. 3 A. At MCC he was held separately. In other words, he had a 4 double room, so as to speak, which was mainly filled with 5 materials from the case. He was seen twice a day, I believe, 6 by a doctor's assistant, a physician's assistant, a PA, who 7 would inject his insulin. 8 He also was seen by people who would come to check up 9 on his feet basically, as I recall it. I'm not a doctor 10 myself, but he was cared for by the staff at MCC. He did have 11 a number of episodes while at MCC when he was removed and taken 12 to medical facilities such -- I know he went to Westchester 13 County medical facility at one time because they thought he was 14 having difficulties, and we were -- the trial was adjourned for 15 a couple of days, and we went forward after that. 16 He was basically seen by MCC and was referred to other 17 people. 18 He also -- we got permission from Judge Mukasey to 19 allow a private doctor to come and see him, to examine him, who 20 spoke Arabic, who could assure him in his own language of 21 exactly what his condition was by conferring with the medical 22 staff at MCC and then speaking to him. That was Dr. Aziz, who 23 was also mentioned in the tapes, once in a while. 24 Q. Now I'd like to talk a little bit more about some of these 25 people that worked on the case. Can we begin with Mr. Sattar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7582 4AOMSAT2 Stewart - direct 1 He was a paralegal, you said? 2 A. Yes. 3 MR. TIGAR: Your Honor, may I show Ms. Stewart and the 4 jury Government Exhibit 2072 in evidence? 5 THE COURT: Yes. 6 Q. This is a document and this is the form in which it was 7 received. That's Government 2072. You could barely make that 8 out. This is a time sheet? 9 A. It is. 10 Q. And it has -- this is the time -- I see here August '95 to 11 January '96. Is that what seems right there? 12 A. It is. 13 Q. Can you see the first page? 14 A. Yes. 15 Q. For instance, we have entries down -- date entries down 16 this column here where my finger is and then we have hours, 17 correct? 18 A. Yes. 19 Q. The place and what was done? 20 A. Yes. 21 Q. Now, look at, for example, 8/3/95, two and a half, MCC, 22 meeting with Sheikh? 23 A. Yes. 24 Q. Did you have to be present every time that someone was 25 meeting with the Sheikh? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7583 4AOMSAT2 Stewart - direct 1 A. No. They were empowered to enter by themselves and be 2 admitted to the ninth floor, where he was held. 3 Q. And would that be true of every lawyer, investigator, and 4 paralegal? 5 A. All of us who were registered with the Sheikh, yes. 6 Q. Could go without any other person being there from the 7 staff? 8 A. Without any other person being there. 9 Q. Over here, if I can change, turning to the second page, 10 here is 10/1/95, seven hours. And I'm reading this entry, 11 meeting with lawyers and Sheikh. 12 What was significant about October the 1st, '95? 13 A. Well, that was the day that the verdict was rendered in the 14 courtroom upstairs. And we were permitted a last visit with 15 the Sheikh at the MCC before he left to go to Springfield 16 Missouri, to a medical facility there. Mr. Sattar was present 17 at that meeting. It was held actually in the clinic at MCC. 18 Mr. Clark was present, I was present. I am not sure if 19 Mr. Yousry was there or not, but those are the people I 20 remember being present. 21 Q. Now, turning back to the first page here, just as an 22 example, on August 6, '95, Mr. Sattar is reported working at 23 home and it says, preparing summation. Tell the jury, how did 24 Mr. Sattar help you, if he did? Did he help you in working on 25 things you were going to do in court? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7584 4AOMSAT2 Stewart - direct 1 A. Yes. We were -- at that point we had finished the 2 presentation of the defense case. The codefendants were 3 presenting their cases. We were going to be summing up first 4 in the case and so all of the paralegals were put to work going 5 through transcripts, finding parts that I asked specifically to 6 be found. They also reviewed tapes and discussed them with the 7 Sheikh. 8 Q. When you say reviewed tapes, how many tapes did you have in 9 that case? 10 A. I am not sure how many went into evidence, but I can only 11 say between the defense and the prosecution there were hundreds 12 of tapes involved in the case, and a great deal of them went 13 into evidence. So each one of them had to be reviewed, a 14 decision had to be made whether or not it was something we 15 wanted to deal with on summation. 16 Q. Now, in what language were these tapes? 17 A. By and large, they were in Arabic. 18 Q. When Mr. Salem, this Egyptian person that we have heard 19 about so much, when he met with your client and recorded the 20 sessions, what language were they speaking? 21 A. That was Arabic. 22 Q. So to use -- so you would use a translator? 23 A. They had to be translated. 24 Q. In looking, therefore, at Mr. Sattar's work, he did 25 translation, conferring, helping with exhibits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7585 4AOMSAT2 Stewart - direct 1 MR. DEMBER: Objection as to the leading, your Honor. 2 THE COURT: Sustained. 3 Q. Did Mr. Sattar's role change later on after the case was 4 over? 5 A. Yes. He had always been more than just "a paralegal" in 6 the sense of the paperwork. He helped the Sheikh in the sense 7 of hearing if he had a medical difficulty of some kind. I 8 don't mean in the sense of being like a doctor. But I mean one 9 of the important things was that the Sheikh should be wearing 10 white socks, apparently. Diabetics have trouble with their 11 feet. 12 Because he was blind he couldn't always be aware that 13 the socks had problems. By problems, I mean, there was some 14 excretion that was on the socks or something. But the 15 paralegals did that kind of thing, too. They reminded him to 16 take care of himself and they reminded him and helped him take 17 care of him. It was always other than that. 18 After the case was over, as you mentioned, the Sheikh 19 was at Springfield. He had always been a person who was on the 20 telephone a great, great deal, and he remained on the telephone 21 a great, great deal while he was at Springfield. And because 22 of the language difficulties, he would often call the 23 paralegals, since none of the lawyers could maintain a 24 full-time Arabic translator at their place of business, and he 25 would communicate with them and they would in turn communicate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7586 4AOMSAT2 Stewart - direct 1 with myself or Mr. Clark or Mr. Jabara. 2 So he took on this role of being the conduit from the 3 Sheikh to the lawyers as well as other things. He also was a 4 spokesperson to some degree for the -- I would characterize it 5 as the concerns of the Sheikh. He would speak out. He would 6 be the point person that we would refer the press to for that 7 kind of information. 8 Q. Now, when your client was removed from the MCC and taken to 9 the medical prison there in Springfield, was he able to keep in 10 touch with his family? 11 A. Well, while he was at Springfield, yes, he had unlimited 12 use of the phone. I am not sure about how easy it was to place 13 a foreign call, but he was certainly permitted to. 14 Q. In this case there have been many recordings displayed to 15 the jury, translations of them where -- involving calls to 16 London, Iran, Afghanistan, and Sudan and so on. Were you aware 17 of any of those? 18 A. No, I cannot say that I was. 19 Q. Now, do you know -- we have also heard in this case that 20 there was a time when the government began to record 21 Mr. Sattar's telephone conversation. Were you aware that that 22 had begun? 23 A. No, I was not aware until after our arrest. 24 Q. During the discovery in this case, were you aware of when 25 that began? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7587 4AOMSAT2 Stewart - direct 1 A. I became aware that it had started in either early '95 or 2 mid 1995. 3 Q. And did it surprise you when you learned of that? 4 A. I'm still somewhat surprised because, of course, Mr. Sattar 5 was a paralegal in an ongoing case and that the government 6 should have been listening to conversations he was having. 7 MR. DEMBER: Objection, your Honor. 8 THE COURT: Sustained. 9 MR. DEMBER: Ask that the question and answer be 10 stricken from the record, your Honor. 11 THE COURT: All right. Stricken. 12 MR. PAUL: Your Honor, could the witness speak closer 13 to the microphone? 14 THE COURT: Yes. 15 THE WITNESS: I'm sorry. 16 Q. I'd like now to move on to another person who worked on the 17 case, Mohammed Yousry. When did you first meet Mohammed 18 Yousry? 19 A. The Sheikh was anxious to have better translations than he 20 thought he was getting from the paralegals. So he asked if we 21 could arrange to get another interpreter to enter the jail. 22 Q. When was this? 23 A. This was after the trial had commenced. I would say it was 24 in March or April of 1995. 25 Q. Did that turn out to be Mr. Yousry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7588 4AOMSAT2 Stewart - direct 1 A. It did. We called the translation service, and they said 2 they had a person that could help us out, and I believe he 3 came -- I met him in court, and we then went over to the MCC to 4 see the Sheikh. 5 Q. And was he hired? 6 A. He was hired, yes, indeed, he certainly was. The Sheikh -- 7 Mr. Yousry came from generally a more privileged background 8 than the other paralegals did. I'm going back in Egypt. He 9 was very well educated, was very well informed. And also 10 was -- had knowledge -- when I say that, I mean, he had an 11 understanding that helped me as well because he had a history, 12 historical perspective here. And the Sheikh enjoyed, liked 13 having these visits that he translated for. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7589 4aqesat3 Stewart - direct 1 BY MR. TIGAR: 2 Q. In addition to doing the translation work, did you become 3 aware that Mr. Yousry had another interest in Sheikh Abdel 4 Rahman? 5 A. That was later. I think that was actually after he was 6 probably shifted to Rochester, but I had known that Mr. Yousry 7 was working on his PhD on an aspect of Egyptian background and 8 movement -- I believe it was the student movements -- and that 9 he later was -- well, I don't mean to get ahead, but he was 10 working on a dissertation then for a PhD at NYU that involved 11 as its subject partially, at least, the Sheikh and his views on 12 things. 13 MR. TIGAR: Now, may I show the jury, your Honor, 14 2415-6 and 2415-6T? 15 THE COURT: Yes. In evidence? 16 MR. TIGAR: In evidence, yes, your Honor. 17 THE COURT: Yes. 18 BY MR. TIGAR: 19 Q. Ms. Stewart, I'd like to show you, moving ahead at the time 20 that your client was in Rochester, this is 2415-6 in evidence. 21 And the jurors have seen it. It says Lynne Stewart at the top, 22 and then it says Lynne here. 23 And everything else on here is in some other language, 24 right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7590 4aqesat3 Stewart - direct 1 Q. And you don't know what that -- it looks like Arabic? 2 A. Yes, it looks like Arabic. 3 Q. All right. Now I'm going to put up on here 2415-6T. And 4 this is in evidence. And this says -- here we've got Lynne 5 Stewart, and over here Lynne, Lynne, right? 6 A. Right. 7 Q. And then it says, a response to Al-Hayat. This could be 8 used in a doctorate dissertation, approved by Lynne Stewart. 9 Right? 10 A. Yes. 11 Q. Now, what is -- do you remember this conversation or this 12 meeting? 13 A. No, not really. I know I visited the Sheikh in March of 14 1999, but I do not have that kind of a memory anymore. 15 Q. As you look back at this summary or at this writing, this, 16 the evidence shows, is from Mr. Yousry -- what do you think 17 this is? 18 MR. DEMBER: Objection, your Honor. Calls for 19 speculation. Witness has said she doesn't know what it is. 20 THE COURT: All right. Sustained as to form. 21 Q. Looking at this exhibit, which is in evidence, does it 22 refresh your recollection about the subject of Mr. Yousry's 23 doctoral dissertation? 24 A. Yes. I recognize this as a page from Mr. Yousry's notebook 25 that he kept on all visits, that he was the recorder, so as to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7591 4aqesat3 Stewart - direct 1 speak. And this is a page from that visit, and it was a 2 subject that he got my approval and then he spoke to the Sheikh 3 about. 4 Q. And do you remember back at that time what was the purpose 5 of your -- what was the reason that you approved of his asking 6 the Sheikh? 7 A. We understood that -- I understood that he was working on 8 his doctoral dissertation; that it had to do with the Sheikh's 9 views on matters past and present and future in Egypt, to some 10 degree. And he asked if he could ask these questions, which 11 had to do with the formation of a political party in Egypt. 12 We've heard of this since then. 13 It was -- Ramsey Clark actually made a press release 14 with regard to this sometime later that year, with regard to 15 the formation of political parties and the Sheikh's view. But 16 this was on a visit by us, and I approved it because it was 17 part of what he was doing. And this was part of his reason for 18 being able to help us in this way, in visiting the Sheikh and 19 giving us his services as translator. 20 Q. Now, the next person I'd like to talk about is the 21 paralegal, Nasser Ahmed. Did something happen to Mr. Ahmed 22 during the trial? 23 A. In the middle of the trial, apparently -- I mean, 24 approximately in May or June of 1995, Mr. Ahmed was arrested by 25 the immigration service for overstaying his visa. He was taken SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7592 4aqesat3 Stewart - direct 1 into custody. He was taken to the immigration jail. And we 2 were called, of course, to be apprised of this situation. 3 Q. Now, did his arrest have any affect on your approach to 4 your -- the case that you were trying to defend? 5 A. We understood from Mr. Ahmed, after he had been released on 6 bail, that he had been approached by FBI agents, who asked him 7 if he would like to cooperate with them. And these were the 8 case agents on the case on trial. He appropriately answered 9 them by saying, how can I cooperate? I'm a paralegal, 10 everything I know is privileged. 11 It alerted me to the fact that this was a case that 12 had overtones and undertones that we needed to be aware of; 13 that things were not necessarily going to be by the -- played 14 by the book. That would have been that -- you know, an 15 approach to a paralegal in a case on trial is unseemly, at 16 best, and that we needed to be very protective of the material 17 we were preparing and material that we were discussing and 18 material that we used at trial. 19 Q. Now, this was in mid'95. Did you become Mr. Ahmed's lawyer 20 then? 21 A. I don't think I appeared for him in that matter because I 22 was on trial every day in this courthouse. But I'm not sure 23 who represented him at that point. 24 Q. Did there come a time when you became his lawyer? 25 A. Yes. The following year in 1996 he was arrested as he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7593 4aqesat3 Stewart - direct 1 entered the immigration at federal plaza for a regularly 2 scheduled appearance. He was unaccompanied by a lawyer at that 3 point and he was taken into custody. And when he asked why he 4 was being taken into custody, he was told, we cannot tell you, 5 it's a secret. 6 MR. TIGAR: Now, may I show the jury just briefly, 7 your Honor, Government Exhibit 2666 in evidence? 8 THE COURT: Yes. 9 Q. Now, this, the jury has seen and has had read. That's the 10 final decision in July 30, '99? 11 A. It is. 12 Q. And these -- is this list of the lawyers here, Mr. Bograd 13 from the ACLU, Professor Cole from Georgetown, Mr. Schilling 14 and Ms. Stewart, is that an accurate list of the lawyers? 15 A. Yes. You left out Mr. Jabara. He was also -- 16 Q. I'm sorry. 17 A. -- very active in this case. 18 Q. There he is, Mr. Jabara. 19 And was Ramsey Clark a lawyer on this? 20 A. He was not a lawyer because he appeared as a witness in 21 this case, so he was not a lawyer on the case. 22 Q. As a part of Nasser Ahmed's case, did you get an 23 opportunity to look more deeply into some of the issues about 24 Egypt that had come up in Sheikh Omar Abdel Rahman's case? 25 A. Mr. Nasser Ahmed had made an application not only for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7594 4aqesat3 Stewart - direct 1 visa issue, but also for asylum in this country, meaning that 2 he would be granted refuge here. Part of the proof necessary 3 for the granting of asylum was to show that if he were returned 4 to Egypt, he would be either killed or tortured or both. 5 MR. DEMBER: Objection, your Honor. 6 THE COURT: Sustained at that point. 7 MR. DEMBER: I ask that the question and answer be 8 stricken, your Honor, and the jury be so instructed. 9 MR. TIGAR: I'm sorry. I didn't hear the objection, 10 your Honor. 11 THE COURT: No, well, there was an objection, which I 12 sustained at that point. So go ahead. 13 MR. TIGAR: Thank you, your Honor. 14 I'll --Ms. Stewart, let me approach this -- may I 15 show -- very briefly, may I show, your Honor, Government 16 Exhibit 2622? 17 THE COURT: Yes. 18 BY MR. TIGAR: 19 Q. I'm placing on the Elmo now what the government introduced 20 in evidence Exhibit 2622. That is -- it says material 21 declassified. Does that contain some of the evidence that was 22 presented by the government in that immigration case? 23 A. It does. We -- as you can see -- 24 Q. We need to go one at a time here because we've had an 25 objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7595 4aqesat3 Stewart - direct 1 If we could just -- this is in evidence and the jurors 2 can see this? 3 A. Yes. 4 Q. So that's 2622. Now, I'm going to show you now some 5 newspaper articles that have been introduced in evidence that 6 were found in your office. 7 MR. TIGAR: May I show the jury 2611, your Honor. 8 THE COURT: Yes. 9 Q. Now, this is a newspaper article from the New York Times? 10 THE COURT: In evidence, right? 11 MR. TIGAR: Yes, in evidence. 12 Q. This is a newspaper article from the New York Times that 13 was taken from your office along with some others that I'm 14 going to show you. 15 Why did you have these newspaper articles? 16 A. They were in a box, as was described by Agent Stumf, and 17 there was a commingling of materials in that box. It was 18 Nasser Homosany, Nasser Ahmed Al-Homosany, plus the Sheikh, and 19 these articles were either supplied to me by the government in 20 connection with Nasser Ahmed's case or they were articles that 21 I myself may have taken out of the newspaper because I thought 22 they had a relationship to that case or, indeed, to what was 23 pending for the Sheikh. His appeal was underway at that point. 24 They had a relationship to both cases. 25 Q. Now, in terms of your own knowledge, intent and state of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7596 4aqesat3 Stewart - direct 1 mind, do you believe everything you read in the New York Times? 2 A. No. They make mistakes. The information isn't always 3 complete. I think we all read newspapers with a practiced eye. 4 MR. TIGAR: May I show Exhibit 2624 in evidence, your 5 Honor, government exhibit. 6 THE COURT: Yes. 7 Q. Placing up on the Elmo, this is another material that the 8 jurors have seen. Was that in that same group of files that 9 you've told us about? 10 A. It was. 11 Q. Now, is this underlining and X-ing, is that yours? 12 A. No, that is not mine. 13 MR. TIGAR: May I show 2626 in evidence, your Honor. 14 THE COURT: Yes. 15 Q. Now, this is a clipping that's in evidence -- we'll see if 16 I can zoom out -- 2626 in evidence, and is this part of that 17 same file? 18 A. This is part of that same file, yes. 19 Q. Now, this is from the Bergen Record, is that what you read 20 there? 21 A. Yes, that's what I read there. 22 Q. Do you know how you came to have this? 23 A. There are two things which give me -- one is there's a 24 number 18 in my handwriting at the very top. 25 Q. Am I pointing to that now? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7597 4aqesat3 Stewart - direct 1 A. Yes. 2 Q. Mr. Ruhnke told me I can do this. There. 3 A. Yes, that is the 18 I'm referring to. 4 Q. All right. And then what else do you see? 5 A. It means we may have used this in some way, or the 6 government may have supplied it to us in Nasser's case -- 7 Q. I'm going to draw a circle right here around something that 8 says -- then I'll put it back in the circle, there. FD350. 9 Does that give you a clue as to where this came from? 10 A. Yeah. I'm virtually certain this was supplied to us as an 11 exhibit in connection with Nasser's case. The -- there was the 12 secret evidence, which we were not allowed to see, but then 13 there were also a great deal of materials, such as this, which 14 was supplied to the judge also. 15 Q. And what does the FD350 mean to you as you look at that? 16 A. It's a -- certainly a federal printing office designation. 17 And I think it's the clipping mount. And that may be the 18 number of the item that they use. But it's definitely a 19 federal designation, which makes me know that this was supplied 20 as an exhibit. 21 Q. Now, I wanted to -- did you also, in addition to these 22 newspaper clippings, collect other evidence about issues in 23 Egypt? 24 A. Yes. 25 Q. And just generally, what kinds of things did you collect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7598 4aqesat3 Stewart - direct 1 that were in the same files as these were in? 2 MR. DEMBER: Objection, your Honor. 3 THE COURT: Basis? 4 MR. DEMBER: Your Honor has made some rulings 5 previously about some of those items, your Honor. 6 THE COURT: All right. I'll allow a general question. 7 BY MR. TIGAR: 8 Q. All right, Ms. Stewart, you've heard the objection and the 9 judge's ruling. Within that parameter, just please tell the 10 jury generally what other kinds of things were collected. 11 A. There was a volume from Amnesty International in which they 12 outlined -- 13 MR. DEMBER: Objection, your Honor. 14 THE COURT: Sustained. Sustained. Move on. 15 MR. TIGAR: I'm sorry, your Honor. I wanted to 16 sustain -- just generally -- may I ask one leading question, 17 your Honor, and move on? So that I don't -- because you 18 sustained the objection? 19 THE COURT: Yes. 20 MR. TIGAR: Thank you, your Honor. 21 BY MR. TIGAR: 22 Q. Did you collect documentary evidence about human rights 23 conditions in Egypt? 24 MR. DEMBER: Objection, your Honor. 25 THE COURT: Sustained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7599 4aqesat3 Stewart - direct 1 MR. TIGAR: May I show the jury Government 2 Exhibit 2675 in evidence, your Honor. 3 THE COURT: Yes. 4 BY MR. TIGAR: 5 Q. Placing on the Elmo Government Exhibit 2675. Now, is this 6 an exhibit that was produced in the matter of Nasser Ahmed? 7 A. It was. 8 Q. And is it an advisory opinion from the Department of State 9 concerning the application for political asylum? 10 A. It is. 11 Q. And did you read this at or about the time that it was 12 received? 13 A. I did read it, yes. 14 Q. Now, looking here at page 2, this comes from someone named 15 William Bartlett, director of the office of asylum affairs, 16 correct? 17 A. That is correct. 18 Q. And turning now to the next page, this provided the 19 immigration court with a profile of asylum claims and country 20 conditions, correct? 21 A. That is correct, and particularly some of the claims of 22 Mr. Nasser Ahmed. 23 MR. TIGAR: May I publish a portion of this document, 24 your Honor. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7600 4aqesat3 Stewart - direct 1 Q. The government generally respects many human rights but 2 others are restricted by the continued imposition of the 3 emergency law, as the security forces and terrorist groups 4 remained locked in a cycle of violence. The ruling NDP 5 dominates the political scene to such an extent that the people 6 do not have a meaningful ability to change their government. 7 Now, was this opinion, was this letter, 2675, one of 8 the things that Judge Livingston had before him at the time 9 that he issued the ruling that is in evidence as Government 10 Exhibit 2666? 11 A. Yes. It was requested by the government as is usual in all 12 asylum proceedings. 13 Q. Looking again at 2666, the immigration judge referred to 14 the -- 15 A. I'm sorry, Mr. Tigar. What is the document? 16 Q. 2666. It's the immigration judge opinion. You may have 17 trouble finding it but ... 18 A. I'll do my best. 19 Thank you. I have it. 20 Q. There is a reference in the document to the testimony of 21 someone named William Hicks. Was that a witness that you 22 presented? 23 A. I think it's Neil Hicks, isn't it? 24 Q. Neil Hicks, yes. Thank you. 25 A. That was a witness we presented, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7601 4aqesat3 Stewart - direct 1 Q. And did you also present other witnesses about human rights 2 conditions in Egypt? 3 A. We did indeed. 4 Q. And who were they? 5 A. We presented a person who had actually been in Egypt and 6 had been tortured and -- 7 MR. DEMBER: Objection, your Honor. 8 THE COURT: Sustained. 9 Q. You presented witnesses? 10 A. We presented witnesses. 11 MR. DEMBER: Your Honor, I move to strike the last 12 question and answer. 13 THE COURT: Yes, no -- 14 MR. DEMBER: With an instruction to the jury, your 15 Honor. 16 THE COURT: The question and answer about the specific 17 witness is stricken, and the jury is instructed to disregard 18 it. 19 MR. TIGAR: I'd like to be heard on that at the break, 20 your Honor. 21 THE COURT: All right. 22 BY MR. TIGAR: 23 Q. At any rate, you got this opinion? 24 A. We did. 25 Q. Did the government appeal? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7602 4aqesat3 Stewart - direct 1 A. They did not appeal. I take it they appealed on the 2 administrative level, but they never took it -- the decision 3 was made not to go beyond that. 4 Q. Mr. Ahmed was let loose? 5 A. Mr. Ahmed was let loose. 6 Q. Let's go back now to the Sheikh's trial. 7 The trial continued on up to -- you say the break was 8 October of 1995. By the time the trial was over, by the time 9 the evidence was closed in September of '95, what did you see 10 as the basic issue that confronted the jury? 11 A. The government's summations were very powerful. They were 12 emotionally, and I would also add, by fact and intellectually. 13 I did not know whether the jury could get over them. But 14 because this is an adversary system, and because we basically 15 believe in the rightness of our cause, I hoped that my own 16 summation had been powerful and emotional enough that they 17 would indeed acquit the Sheikh. That did not happen. 18 Q. Now, as the trial went forward, did you keep track of the 19 media coverage? 20 A. No, I don't think I kept track of it. 21 Q. Did you read what was going on in the media? 22 A. Oh, I -- in that sense, yes. I certainly read anything 23 that was printed about the case in virtually anything that came 24 up. 25 Q. Why do you do that during the trial, read what the media SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7603 4aqesat3 Stewart - direct 1 says? 2 A. I think I alluded to it earlier. It sort of is taking the 3 pulse or the temperature of what public sentiment is saying; 4 how the trial is being received by the press, which is not the 5 same as a jury but -- not reported the same as a jury, but who 6 was listening to this evidence and having a distinct reaction. 7 Sort of as lawyers we are then given clues as to where perhaps 8 we should be focussing our -- or I should be focussing my 9 attention for the purpose of summing up or raising objections 10 or whatever there is to be done. 11 Q. Would you turn to LS406 in your book, please. 12 A. Yes. 13 Q. And is that a computer download of an article that at the 14 time it appeared, at or about the time it appeared, you saw? 15 A. It is. 16 Q. And did that affect your view of the issues that the jury 17 was going to deal with in your case? 18 A. Well, it was a thoughtful piece, I thought, and that it was 19 also incisive about what some of the issues were. But if 20 you're asking did it renew my hope that the jury would be able 21 to hear and decide the case without the emotional impact of it, 22 it did. I thought that we had a fighting chance. 23 MR. TIGAR: Your Honor, we offer LS406. 24 THE COURT: All right. LS406 is received in evidence. 25 Ladies and gentlemen, this is a newspaper article. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7604 4aqesat3 Stewart - direct 1 It's not being received for the truth of any of the statements 2 in the article. I've given you instructions about newspaper 3 articles before. The article is received for any relevance to 4 the knowledge, intent and state of mind of Ms. Stewart. 5 (Defendant's Exhibit LS406 received in evidence) 6 MR. TIGAR: May I publish it, your Honor. 7 THE COURT: Yes. 8 BY MR. TIGAR: 9 Q. This is a computer printout from Wall Street Journal. 10 Friday, September 22, 1995. 11 The other trial: As Sheikh Omar case nears end, 12 neither side looks like a winner. 13 Prosecution's main witness is a perjurer; defense sees 14 a plot on plotters. 15 Telling tales of urban terror, by Peter Waldman and 16 Frances A. McMorris, staff reporters of the Wall Street 17 Journal. 18 New York, as his own trial began winding down in a 19 Manhattan federal courtroom last week, Sheikh Omar Abdel Rahman 20 marveled at that other epic trial taking place across the 21 continent. 22 The blind Egyptian cleric, accused by the US 23 government of leading an Islamic "war of urban terrorism 24 against the United States," told his lawyers he couldn't 25 understand how a single murder case could rivet Americans' SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7605 4aqesat3 Stewart - direct 1 attention for so long. But bless O.J. Simpson, the Sheikh 2 added, accord to Abdeen Jabara one of his defense lawyers. "He 3 took the spotlight off us," Sheikh Omar said. 4 In a trial full of surprises, perhaps the most 5 surprising thing about one of the biggest terrorism conspiracy 6 cases in US history is how few people seem to care. Eclipsed 7 by the Oklahoma City bombing and the Simpson trial, the 8 sedition case against Sheikh Omar and nine codefendants is 9 quietly set to begin jury deliberations this weekend after 10 eight months of testimony by some 210 witnesses. 11 What the trial has lacked in sex appeal, it has more 12 than made up in grit. US prosecutors have laid out a scenario 13 of a circle of alleged Muslim terrorists whose wickedness 14 spanned four years, four continents and dozens of crimes. The 15 Brooklyn murder of extremist Rabbi Meir Kahane in 1990 and the 16 February 1993 bombing of Manhattan's World Trade Center, which 17 killed six people, injured more than 1,000 and caused billions 18 of dollars of damages were just part of the plan, the US 19 contended. (In March 1994, four men, who are not on trial in 20 this case, were convicted of the bombing and sentenced to 21 multiple life sentences.) 22 Coming next, prosecutors argued, was "a battle plan" 23 of assassinations and bombings in New York "that was so 24 horrible, so monstrous, so vicious that had it succeeded, the 25 lives of every person in this city and in this nation would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7606 4aqesat3 Stewart - direct 1 changed forever." 2 One thing is clear: As closing arguments ended this 3 week, neither side -- the US government nor its supposed mortal 4 enemies on trial -- looks good in this case. 5 For their part, prosecutors, relying on evidence from 6 secretly recorded audio and videotapes, appear to have caught 7 at least several of the defendants red-handed in some sort of 8 bombing plot. But the evidence that their alleged "godfather," 9 Sheikh Omar, even knew about that plan is scant. Nevertheless, 10 because of the way federal conspiracy laws work, the jury could 11 still convict the 57-year-old Sheikh of leading the supposed 12 jihad, or Islamic holy war, regardless of what he knew about 13 the alleged conspiracy's details. 14 To do that, the panel of seven women and five men will 15 have to believe the prosecution's claim that several seemingly 16 disparate incidents between 1989 and 1993 formed the planned 17 "war of urban terrorism" against America. They will also have 18 to conclude that the government's main witness -- a confessed 19 perjurer and double agent -- is telling the truth. And then 20 there is the alleged mishandling of the case by agents of the 21 Federal Bureau of Investigation. 22 The jury has a lot to chew on. Defense lawyers 23 conceded their clients believe in holy war -- but not against 24 America. To show that one of their main targets was 25 Afghanistan, defense lawyers produced documents labeled "top SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7607 4aqesat3 Stewart - direct 1 secret" that confirmed for the first time that the US Army 2 trained Muslims in the US to fight the Soviets in Afghanistan. 3 In particular, in 1989, Sergeant Ali A. Mohammed of the Army 4 Special Forces based in Fort Bragg, North Carolina, taught 5 several courses to local Muslims in Jersey City, New Jersey, 6 court papers show. 7 Roger Stavis, attorney for El Sayyid Nosair, a 8 defendant who took the US training and is accused in federal 9 court here of killing Rabbi Kahane to further the jihad 10 conspiracy told the jury the only Jihad Group his client 11 belonged to was "Team America." (Mr. Nosair was acquitted in 12 state court of Rabbi Kahane's murder but sentenced to seven 13 years in prison on related weapons charges.) 14 "I submit to you that the US Army did not send 15 Sergeant Ali Mohammed up here to train Mr. Nosair to wage a war 16 of urban terrorism against the US," Mr. Stavis told the jury. 17 The trial showed that, six months before the Manhattan 18 blast, the FBI terminated its key informant in the Muslim 19 group, after he failed several lie detector tests. Then, 20 following the World Trade Center explosion, the FBI rehired the 21 same Cairo-born informant, Emad Salem, for a fee of more than 22 $1 million. He became the linchpin of the government's case -- 23 gathering most of the evidence against the conspiracy 24 defendants, or, in the view of their defense lawyers, illegally 25 entrapping them in a scheme of the 45-year-old Mr. Salem's own SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7608 4aqesat3 Stewart - direct 1 design. 2 On the witness stand Mr. Salem was a disaster for the 3 prosecution. In eight weeks of testimony, he confessed to 4 having lied under oath in a previous trial and to having served 5 as a double agent for the US and Egyptian governments. He 6 admitted violating FBI rules against unauthorized taping and to 7 secretly recording nearly all of his conversations. In one of 8 the so-called bootleg tapes he recorded and which was entered 9 into evidence, Mr. Salem is heard asking his intelligence 10 handler in Egypt -- well, excuse me your Honor, I pushed the 11 wrong button. It will be up in a minute. 12 OK. There we go. 13 Asking his handler in Egypt if the Egyptians wanted 14 Sheikh Omar "in the cage here or the cage there." 15 The bootleg tapes give a rare behind-the-scenes look 16 at how the FBI handled one of its most important informants 17 ever. They also showed that Mr. Salem had a close relationship 18 with his first FBI handler, Agent Nancy Floyd. 19 They visited each other's homes, went shopping for 20 furniture and discussed Mr. Salem's marital problems, according 21 to court testimony. Jurors learned Ms. Floyd escorted 22 Mr. Salem to the Internal Revenue Service to help sort out his 23 taxes. She gave him a watch. He gave her a brass business 24 card holder with her name engraved on it. 25 When Ms. Floyd and other FBI agents searched SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7609 4aqesat3 Stewart - direct 1 Mr. Salem's apartment for the bootleg tapes, an argument 2 erupted. After concealing the tapes' existence, Mr. Salem had 3 given the FBI permission to retrieve about 20 of them from his 4 bedroom. But when another agent found an additional 35 or so 5 cassettes in Mr. Salem's desk, Ms. Floyd protested, telling the 6 other agents to leave those behind. 7 The agents called their boss. Ms. Floyd talked about 8 getting a lawyer, she later testified. The tapes were scooped 9 up by the agents and taken to Mr. Salem's hideout. He was 10 furious at the FBI for searching his desk, Ms. Floyd testified. 11 Many of the tapes were given back to Mr. Salem, who didn't 12 produce them for the defense until months later. Several of 13 the defense lawyers have raised the question of evidence 14 tampering. 15 In testimony, Ms. Floyd said that she and Mr. Salem 16 were just "friends" and denied that they were lovers. But she 17 admitted their relationship is being investigated by the FBI's 18 office of professional responsibility. She said she objected 19 to taking the tapes from Mr. Salem's desk because he had only 20 given permission to retrieve tapes from his bedroom. Bureau 21 spokesman Joseph Valiquette refused to comment on any aspect of 22 the trial. 23 In January 1992 Mr. Salem taped a call to FBI agent 24 Louis Napoli. After conveying Sheikh Omar's whereabouts, 25 Mr. Salem said the Sheikh was distancing himself from some of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7610 4aqesat3 Stewart - direct 1 his more violent followers. "He's trying to put himself away 2 from this thing" Mr. Salem said. Mr. Napoli replied, "and I'm 3 trying to put him in it." 4 After the Trade Center bombing, Mr. Salem gave the FBI 5 an ultimatum: "You want me back? You better pay me," he said, 6 according to trial testimony. "And don't drop me after you've 7 got the information." He was angry about finding his mug shot 8 on an FBI wall as a Trade Center suspect. FBI Agent John 9 Anticev testified, and still hurt from his termination as an 10 informant the previous summer. 11 Disgraced by the Trade Center bombing, the FBI was 12 happy to oblige, defense lawyers contended. From March through 13 June 1993 Mr. Salem helped organize the battle plan that the 14 government alleged included plots to bomb the United Nations 15 and FBI buildings in New York and the Holland and Lincoln 16 tunnels beneath the Hudson River. Working with a charismatic 17 Sudanese man named Siddig Ali, a follower of Sheikh Omar, 18 Mr. Salem recruited seven Muslims to scout targets, plan 19 tactics and obtain chemicals and electronic parts for bombs, 20 the government alleged. The FBI supplied a safe house in 21 Queens. 22 By the time the federal agents moved in to make 23 arrests on June 23 the FBI had hours of audio and videotapes 24 chronicling nearly every step of the bombing plot, including 25 videos showing several of the alleged conspirators mixing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7611 4aqesat3 Stewart - direct 1 fertilizer and diesel fuel to make a bomb. 2 In the trial Mr. Ali, the most avid would-be bomber on 3 the tapes, pleaded guilty to seditious conspiracy and other 4 crimes. Defense lawyers for the seven other men linked to the 5 safe house argued that Mr. Salem lured their clients with an 6 offer of military training for the war in Bosnia. The bomb 7 plots were all in Mr. Salem's head, they said -- his payback to 8 the FBI for his big fee. 9 Your Honor, I have a couple more pages here. May we 10 take a break now? 11 THE COURT: Sure. Ladies and gentlemen, we'll take a 12 break. Please remember my continuing instructions. Please, 13 don't talk about the case at all. Please remember to keep an 14 open mind. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7612 4aqesat3 Stewart - direct 1 (In open court; jury not present) 2 THE COURT: Ms. Stewart may step down. 3 MR. TIGAR: Your Honor, very briefly, with respect to 4 what other files Ms. Stewart had, I was well aware that your 5 Honor had said, don't put the books in. And I wasn't trying to 6 get around that order. The reference to Amnesty International 7 or country reports is already in. We have two state department 8 country reports. We have some references in the Livingston 9 opinion and in Ms. Stewart's opening statement. 10 All I wanted to elicit, however inartfully, was that 11 in the same set of file folders, there were a dozen or so other 12 reference materials on conditions in Egypt. And if that is a 13 precluded line of inquiry, well, of course I won't make it. 14 But that was what I was attempting to do, and that, I submit, I 15 should have been able to do with at least a single question. 16 THE COURT: The -- a couple of things. First, the 17 question and answer that I sustained -- well, I sustained a 18 couple of objections. And the question and answer that I 19 sustained the objection and ordered stricken was with respect 20 to the examination of one witness with respect to torture. 21 MR. TIGAR: Yes, your Honor. And I understand that 22 objection. And Judge Livingston's opinion refers to the risk 23 of torture, and we're satisfied with that. I'm not quarreling 24 with that ruling, your Honor. 25 THE COURT: With respect to the other materials, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7613 4aqesat3 Stewart - direct 1 government -- 2 MR. DEMBER: Your Honor, clearly those materials that 3 are in evidence are not in evidence for their truth, to begin 4 with. That's the first thing. 5 Secondly, your Honor, as I believe your Honor ruled, 6 the human rights conditions in Egypt are irrelevant to this 7 case. 8 THE COURT: OK. 9 MR. DEMBER: That's the part of our objection. 10 THE COURT: I agree with that. So I continue to 11 sustain the objection. 12 The history of this is the government sought to 13 introduce certain evidence which was submitted at the 14 deportation proceeding because of its relevance to 15 Ms. Stewart's state of mind with respect to specific 16 information about the Islamic Group. I then said, in fairness, 17 the judge's opinion can certainly be in evidence for its effect 18 on Ms. Stewart's state of mind, because Ms. Stewart didn't have 19 to believe what the government's evidence was at the 20 proceeding. 21 And so both documents are in for their effect on 22 Ms. Stewart's state of mind. And so those documents can be 23 read from -- for their effect on Ms. Stewart's state of mind. 24 That does not open -- to the extent that materials are not 25 already in evidence because they're discussed in those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7614 4aqesat3 Stewart - direct 1 documents, it doesn't open up further inquiries about other 2 materials, other than to the extent they're referred to already 3 in those materials. And I did sustain the objections to 4 including ten other documents or so. 5 So, you're welcome to read from materials which are in 6 evidence. 7 MR. TIGAR: Your Honor, respectfully, our view of the 8 history is slightly at variance, or interpretation of the 9 history is slightly at variance with your Honor's. 10 In Government Exhibit 2675, I believe, and 2676, the 11 State Department reports, yes, those go very, very much more 12 broadly than the discussion of the Islamic Group or Sheikh 13 Rahman's confederates and so on. They are global views by the 14 State Department of conditions in Egypt. And because the State 15 Department is required by treatise to which the United States 16 is a party to have some minimal level of candor with respect to 17 those issues in its reports to international agencies in 18 Geneva, and for other reasons, those reports are -- they're 19 very complete. 20 So we thought, and it was our contention, that the 21 government, by offering those very expansive documents which 22 were authored at a time when Professor Cohen was in the State 23 Department, had opened the door to the limited inquiry that I 24 sought to make of Ms. Stewart. If your Honor has ruled against 25 me, your Honor has. And -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7615 4aqesat3 Stewart - direct 1 THE COURT: Yes. 2 MR. TIGAR: And the matter is closed, and I've made my 3 point. 4 THE COURT: Actually, what you're touching on is 5 another part of the history, because I rejected the argument of 6 the rule of completeness with respect to those various 7 materials when originally offered and said that, first, they 8 were not necessary for the rule of completeness, and either 9 then or later referred to Judge Mukasey's opinion in the 10 original Rahman case that had dealt with an issue that it was 11 not relevant. 12 MR. TIGAR: Your Honor, and I regard -- may I just 13 take another minute here, your Honor. I did not regard your 14 Honor's rule of completeness ruling, which I thoroughly 15 understood, as precluding me from asking the question I asked, 16 because rule of completeness refers to documents and not to 17 testimony. 18 One -- 19 THE COURT: I'm not suggesting the question was asked 20 in -- 21 MR. TIGAR: May I ask a favor, please. 22 THE COURT: -- other than good faith. 23 MR. TIGAR: Would Mr. Dember, if he makes an 24 objection, annunciate it clearly. I'm having trouble hearing 25 his words. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7616 4aqesat3 Stewart - direct 1 And would your Honor speak into the microphone, 2 because there were a couple of times when I really did not 3 understand what I was supposed to do next. 4 THE COURT: That's fine. 5 MR. TIGAR: Beyond my eventual inability to know. 6 THE COURT: Absolutely. We'll take five minutes. 7 (Recess) 8 THE COURT: Ms. Stewart, you can take the stand, 9 please. 10 And let's bring the jury. 11 MR. TIGAR: Your Honor, may I place this back on the 12 screen. It's LS406 in evidence. 13 THE COURT: Yes. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7617 4aqesat3 Stewart - direct 1 (In open court; jury present) 2 THE COURT: Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE WITNESS: Yes. 7 THE COURT: Mr. Tigar, you may proceed. 8 MR. TIGAR: Continuing, your Honor, with LS406, from 9 where I left off. 10 Prosecutors acknowledged Mr. Salem's role in 11 organizing the safehouse activities but told the jury "he was 12 merely providing an opportunity" to people "ready and willing" 13 to commit crimes. 14 Where was the Sheikh? 15 The government contended that before the Sheikh even 16 arrived in the US in July 1990, he commanded the alleged 17 conspiracy from Egypt. After Mr. Nosair's arrest in 18 November 1990 on suspicion of murdering Rabbi Kahane, three 19 tapes of phone conversations with the Sheikh in Egypt were 20 found. On them Mr. Nosair reports to the Sheikh that members 21 of Jersey City's El Salaam mosque had begun military training 22 (for Afghanistan, defense lawyers claimed at the trial). 23 Mr. Nosair asks if the Sheikh has any orders for the "brothers" 24 of the mosque. The Sheikh told them to stay in touch. 25 In another taped conversation, Mahmud Abouhalima, one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7618 4aqesat3 Stewart - direct 1 of the four men later convicted in the World Trade Center 2 blast, consulted with the Sheikh in Egypt about a dispute with 3 the New York area Muslim. Sheikh Omar gave his opinion, then 4 added "tell him that this an order from the Sheikh." 5 In 1991 Mr. Salem, the FBI informant, drove Sheikh 6 Omar to Detroit for a speech. On the long ride, Mr. Salem 7 talked about his 18 years in the Egyptian army. The Sheikh 8 told him that he had wasted his life for the "infidel" regime, 9 Mr. Salem testified, and that he should repent by turning "his 10 rifle to the chest of [Egyptian President Hosni] Mubarak." 11 This alleged statement became the basis of the charge that 12 Sheikh Omar solicited the murder of Mr. Mubarak. 13 As part of the alleged plan to wage war on the US, 14 Sheikh Omar's "Jihad Army" also bombed the Trade Center, 15 prosecutors charged, though none of the "soldiers" in this case 16 actually perpetrated that crime, they said. Prosecutors showed 17 the jury phone records of calls made before the bombing between 18 some of the conspiracy defendants and those men convicted of 19 the Manhattan blast. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7619 4AQMSAT4 Stewart - direct 1 MR. TIGAR: In the summer and fall of 1992, several 2 calls were made from the Sheikh's Jersey City apartment to a 3 number in Pakistan, prosecutors showed. The same Pakistan 4 phone number was found written inside bomb manuals seized from 5 a man named Ahmed Ajaj upon his arrival in the U.S. from 6 Pakistan on September 1, 1992. Mr. Ajaj, who has been 7 convicted of the Trade Center bombing, flew in with Ramzi 8 Yousef, a Palestinian. In February of this year, after a 9 two-year man hunt, the U.S. arrested Mr. Yousef in Pakistan, 10 charging him with masterminding the Trade Center bombing. 11 Phone records also showed several conversations before 12 the bombing between Sheikh Omar's apartment and the nearby 13 apartment of Mohammed Salameh, who was later convicted in the 14 Trade Center case. And records of several calls from the 15 Sheikh's phone to that of Mr. Abouhalima, another of the four 16 men convicted, also were presented. 17 The FBI quickly cracked the Trade Center case with a 18 stroke of bizarre luck, when Mr. Salameh went back to collect 19 his deposit on the rental truck used to transport the bomb. 20 Though investigators knew the bombing suspects were followers 21 of Sheikh Omar and that the Sheikh had been preaching Jihad in 22 the U.S. since his arrival in 1990, they had nothing on him. 23 That's when Mr. Salem went to work. 24 The heart of the government's case against Sheikh Omar 25 is a conversation Mr. Salem recorded secretly in the Sheikh's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7620 4AQMSAT4 Stewart - direct 1 kitchen on May 22, 1993. In the previous 10 weeks or so, 2 Mr. Salem had failed several times to induce the Sheikh to 3 incriminate himself on tape, defense attorneys pointed out. 4 Moreover, though the FBI has been tapping the Sheikh's phone 5 since several days before the Trade Center bombing, he had said 6 nothing linking him to that plot or any other, the defense 7 showed. 8 The kitchen conversation began, ironically, with the 9 Sheikh asking Mr. Salem to check into a warning that one of 10 their associates may be a government agent. Then Mr. Salem 11 told Sheikh Omar about his visit the day before to Mr. Nosair 12 at Attica, where they discussed possible targets of violence. 13 Though whispering on the tape in case the kitchen was bugged, 14 Mr. Salem sounded overwrought. He testified at the trial that 15 he was crying at the time. 16 Said Mr. Salem: "In regards to the United Nations, do 17 we consider it the house of the devil? Because my strike is a 18 devastating one and not an amateur one like the one at the 19 Trade Center. We are preparing for something big, God willing, 20 that will bring it upside down. So is that forbidden or 21 allowed?" 22 Sheikh Omar responded: "It is not forbidden, but it 23 will be bad for Muslims" since people "consider it to be the 24 center of peace." Instead, the Sheikh said, "find a plan to 25 inflict damage to the American army." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7621 4AQMSAT4 Stewart - direct 1 A moment later Mr. Salem said: "Siddig suggested that 2 the second target will be the FBI's center. What do you 3 think?" 4 "By God," the Sheikh answered. "I mean, postpone it a 5 little, slow down a little. May God make things right for you. 6 Sheikh Omar's lawyer, Lynne Stewart, told the jury 7 that the conversation exonerated the Sheikh. Desperate to reel 8 in the big fish, she said, Mr. Salem feigned a breakdown to 9 elicit any encouraging word he could get on tape. But the 10 Sheikh said, don't bomb the UN, "slow down" with the FBI, and 11 comforted the sobbing schemer with the implausible idea of 12 attacking the U.S. Army, Ms. Stewart argued. (The U.S. offered 13 no evidence that such an attack was ever planned.) 14 Proof that the Sheikh wasn't the leader of anything, 15 Ms. Stewart said, came moments later on the tape. What does 16 Mr. Salem do after the Sheikh says, don't bomb the U.N., 17 Ms. Stewart asked? Goes right on planning the scheme. 18 Prosecutors viewed the contents of the tape 19 differently. "When we talk about corroboration," Assistant 20 U.S. Attorney Patrick Fitzgerald said in the government's 21 summation, "that's what corroboration is." 22 Q. The jury decided? 23 A. Yes, they did. 24 Q. What did the jury decide, Ms. Stewart? 25 A. They found Sheikh Omar guilty of all charges against him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7622 4AQMSAT4 Stewart - direct 1 Q. How did you react to that verdict? 2 A. I believe they showed the picture of me wiping away the 3 tears. I felt then, as I do now, that he was convicted 4 unjustly. 5 Q. Did you accept the verdict? 6 A. Yes, of course. I'm a lawyer. 7 Q. Earlier today we talked about the -- his removal from the 8 MCC to Springfield, and your conversation with Judge Mukasey. 9 A. Yes. 10 Q. I want to go back to that. Once the jury has returned its 11 verdict guilty, guilty, guilty, guilty, what's your job as a 12 lawyer? How did you see the job that you had to do as you 13 faced it in the immediate time after that? 14 A. Well, the immediate job is usually to shift gears to start 15 preparing for a sentencing, a federal sentencing, which 16 involves preparation of a presentence report, presentation of 17 whatever mitigating evidence one can come up with to present to 18 the judge. It is very different after a trial than it is after 19 a plea of guilty, for example. But there is a great deal of 20 preparation involved in this. 21 The other thing that one starts thinking about is the 22 necessity for an appeal and getting people on board deciding 23 who will do the appeal, how the appeal will be done, and 24 starting to think about that. So all of these things were 25 things that were still on the table with regard to Sheikh Omar, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7623 4AQMSAT4 Stewart - direct 1 even after the conviction. 2 Q. Now, you said he was removed to Springfield, Missouri. 3 What's in Springfield, Missouri, as you understood it? 4 A. It is a federal medical facility, a jail, that has like 5 Rochester, a hospital section. It is an older facility, not -- 6 not modern, I guess, is the only description of it. It is 7 pretty imposing and it is, of course, in the middle of 8 Missouri, middle of America, and fairly isolated in terms of 9 metropolitan areas. 10 Q. Now, after Judge Mukasey appointed you as counsel -- does a 11 federal judge have the power to do that, to appoint a lawyer to 12 serve? 13 A. He does. And he did get the approval of the circuit to do 14 it, but he appointed me with their approval. 15 Q. Now you say of the circuit. What's the circuit? 16 A. The circuit is the court that sits in this building and 17 hears appeals from New York and Vermont and all of New York 18 State and Vermont and Connecticut and is the supervisory 19 portion of that CJA panel. 20 Q. And the CJA is the Criminal Justice Act? 21 A. Yes. 22 Q. Now, when your client was confined there at Springfield, 23 who had the right to go and visit him? 24 A. The same people that were visiting him at MCC. That would 25 be myself, Mr. Clark, Mr. Jabara, Mr. Schilling, as well as the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7624 4AQMSAT4 Stewart - direct 1 paralegals, Mr. Ahmed, and Mr. Sattar. As I said, Mr. Yousry 2 had been approved as an interpreter. He would go in with any 3 of us who were going in. And Mr. Elmasry also had permission, 4 I believe, to visit. 5 Q. Something I forgot to ask you about Mr. Yousry. In 6 addition to being an interpreter, did he prepare some evidence 7 that was offered in the Sheikh's trial but not received? 8 A. We attempted -- one of the things we wanted to do in the 9 defense was to -- 10 MR. DEMBER: Objection, your Honor. 11 THE COURT: Sustained. Go ahead. 12 MR. TIGAR: May I get a yes or no answer to that, your 13 Honor, whether he prepared materials? 14 THE COURT: Whether he prepared something? 15 MR. TIGAR: Yes. 16 THE COURT: Yes. 17 Q. Had he prepared some materials that you were offering to 18 the jury but that Judge Mukasey ruled out? 19 A. No. He was not called as a fact witness. 20 Q. I understand that. But was he involved in preparing some 21 evidence that you offered to the jury during the defense case? 22 A. Yes. 23 MR. TIGAR: I'm trying to comply with the objection 24 that's been sustained. Now I'll move on. 25 Q. After this case was over, your client is in Springfield, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7625 4AQMSAT4 Stewart - direct 1 people can visit him. Did you perceive any obligation to 2 discuss the issues in the case publicly? 3 A. Yes, we discussed issues of the case. I was asked to -- I 4 am not sure when he was at Springfield. I think it was. I 5 participated in public forums at bar associations. I did speak 6 out on what I thought were some of the issues of the case, the 7 issue being terrorism on trial as such and the obligations that 8 I thought the government had under such cases and the 9 obligations defense lawyers had as well. 10 Q. Did prosecutors that were involved in the case participate 11 in public statements about their view of it? 12 A. They did. I recall one instance at the association of the 13 bar of the City of New York where both Mr. McCarthy and myself 14 and Roger Stavis, who was mentioned in the Wall Street Journal 15 article, all participated. 16 Q. Did you think that sharing your views and the prosecutors 17 sharing their views about the public issues involved was a 18 proper thing to do? 19 A. Yes. I think that lawyers in particular become the center 20 of attention sometimes in cases and it is very important to 21 share with our brothers and sisters in the law as well as lay 22 persons how this takes place, in what atmosphere and how it is 23 done exactly and what are the concerns ethically and from the 24 point of view of vigorously defending how you deal with all of 25 that. And that's why we generally are encouraged to speak and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7626 4AQMSAT4 Stewart - direct 1 to be part of the public discourse. 2 Q. I would like to turn to this time of preparing for the 3 sentence and the visit to Springfield. Now, this is before any 4 Special Administrative Measures were imposed, the time we are 5 speaking of, correct? 6 A. That's correct. 7 Q. How many times did you visit your client, Sheikh Omar Abdel 8 Rahman, in Springfield? 9 A. There were two visits. There were two visits. 10 Q. And do you remember what those were about? 11 A. The first one we went -- Mr. Yousry and myself and the 12 probation officer who was charged with writing the report for 13 the judge in order to use with sentencing, that's a report that 14 details the person's entire life history, criminal history, et 15 cetera. I'm forgetting her name. I think it was Margaret. We 16 traveled out there together. And she did interview him in our 17 presence and we then would have an attorney-client visit. 18 Q. That was one visit? 19 A. That was one visit. 20 Q. What was the other? 21 A. The second visit was a request by Japanese educational 22 television to interview the Sheikh, and they were willing to 23 hire local TV cameramen, et cetera, but that their person from 24 the Japanese educational station in Tokyo -- I forget his last 25 name also -- Ed was his first name -- he and I and Mr. Yousry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7627 4AQMSAT4 Stewart - direct 1 again went out to visit the Sheikh for the purpose of this 2 interview. 3 Q. Was Mr. Yousry the interpreter for both of these visits? 4 A. He was. 5 Q. Now, on appeal is it your view that a person who is going 6 to appeal their conviction still has a right to counsel? 7 A. I don't think it is my opinion. I think it is 8 constitutionally guaranteed. I think you have the right to 9 counsel for an appeal. I don't think there is any way that 10 that proscription is anything but constitutional. 11 Q. Ms. Stewart, I'd like to ask you about some items of 12 evidence that have been received here and that this jury has 13 seen. 14 MR. TIGAR: May I show the jury 2637 in evidence, your 15 Honor, Government Exhibit 2637? 16 THE COURT: Yes. 17 Q. You saw that when it was offered, Ms. Stewart? 18 A. Could you describe the article for me? 19 Q. Can you look on the screen? You can see it there. 20 A. I think I have the one notebook here. 21 MR. TIGAR: May we supply a different notebook, your 22 Honor? 23 THE COURT: Yes, you may approach. 24 Q. Do you have it? 25 A. I do have it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7628 4AQMSAT4 Stewart - direct 1 MR. TIGAR: May I show the jury 2638 in evidence, your 2 Honor? 3 THE COURT: Yes. 4 Q. Now, you were here when the jury was first shown that, is 5 that correct? 6 A. That's correct. 7 Q. You heard Agent Stumf testify that these were in a file in 8 your office? 9 A. Yes. 10 MR. TIGAR: May I show the jury 2614, your Honor? 11 THE COURT: Yes? 12 MR. TIGAR: This is in evidence, Government Exhibit 13 2614. 14 Q. This is a letter to you from -- I am going to move down so 15 we can see it -- from Henry Schuster. I am going to move to 16 the top, CNN. And do you see the language here -- I'll do it 17 with my finger. And you can imagine that we are interested in 18 hearing more from the Sheikh about his will. Do you see that? 19 A. I do. 20 MR. TIGAR: May I show the jury Government Exhibit 21 2610 in evidence? 22 THE COURT: Yes. 23 Q. Now, there is a copy of a letter, Ms. Stewart, that you 24 sent to Mr. Schuster? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7629 4AQMSAT4 Stewart - direct 1 Q. And this is dated November 20, 1998, correct? 2 A. Correct. 3 Q. Is this after the SAMs were imposed? 4 A. Yes, it was after the SAMs were imposed. 5 Q. You say, I received the tape, but due to my usual hectic 6 schedule, I probably will not get to watch it until weekend. 7 We had discussed the issue of your directly communicating with 8 the Sheikh and both Ramsey Clark and myself would appreciate if 9 you can detail the questions that you want him to address. 10 I enclose the copy of the restrictions under which we 11 are forced to operate. We are, however, considering the 12 options. I will be in touch with you on Monday. There will be 13 another call with the Sheikh on Friday, November 27. 14 What are the restrictions you're referring to there? 15 A. Those are the Special Administrative Measures, the SAMs, 16 that were put in effect in, I believe it was April or May of 17 '97. 18 Q. I want to talk about those more in detail later, but -- 19 MR. TIGAR: May I first show the jury government 2639 20 in evidence? 21 THE COURT: Yes. 22 Q. This is a letter to you found in your office dated November 23 24, '98 from CNN? 24 A. It is. 25 Q. And here is another discussion of his sons and his will, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7630 4AQMSAT4 Stewart - direct 1 that correct? 2 A. That's right. 3 Q. Now, did Mr. Schuster send you a videotape that you recall? 4 A. I don't actually recall it, receiving it. 5 Q. So do you recall having watched it then? 6 A. Well, I am refreshed by his letter where he said that he 7 sent it and I said that I would watch it. I believe the 8 subject matter was I think it is the tape we saw here, but I 9 can't swear it was exactly the same as what we saw here, with 10 Osama Bin Laden making a statement, I believe. 11 Q. I want to go through these issues. 12 MR. TIGAR: May I put back 2639, your Honor? 13 THE COURT: Yes. 14 Q. These are the questions. I am going to leave this up here. 15 Did you intend to get involved in having the Sheikh 16 make a statement about all of these things? 17 A. No. We were intending to get Mr. Schuster and the big 18 organization media wise that he represented to make a lawsuit 19 against the SAMs. That was what I was hoping and what the 20 defense team had discussed. The questions were merely looking 21 future wise, if they were to win such a lawsuit, then we would 22 want the right to go over the questions in advance. 23 Q. Did you ever pose these questions to your client? Did you 24 ever read out these questions to him? 25 A. No, they were never read to him. And the diaries that are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7631 4AQMSAT4 Stewart - direct 1 kept of the calls reflect that. 2 Q. At that time, what issues were you trying to work on as 3 they concerned your client? I say at that time, 1998. 4 A. Well, we were still involved in the preparation of the 5 appeal, although this was mainly Ramsey Clark's responsibility. 6 I, of course, was consulted very regularly about it. And our 7 main concern was the conditions under which the Sheikh was 8 being held. We all knew that there was a deterioration since 9 the SAMs had been opposed, and we were very concerned about 10 that. 11 Q. Why were you concerned about the issue about the Sheikh's 12 health and prison conditions? What was going on in your mind 13 about why you wanted to focus on that? 14 A. Well, as the lawyer we are charged with more than just 15 merely striding into the courtroom and asking questions. There 16 is sort of a parallel universe of, if you will, concern for the 17 client. 18 First, of course, his legal case is our prime concern. 19 The second concern is, he is being held without freedom. And 20 in this situation sometimes things happen that are bad. And 21 so, therefore, the lawyer is also on the alert for any kind of 22 infringement on the very limited rights a client may have when 23 he is arrested and held and then later imprisoned. This was a 24 grave concern to us, especially since there had been such an 25 abrupt delimiting of his ability to communicate with anybody in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7632 4AQMSAT4 Stewart - direct 1 the outside world. 2 Q. Were you at that time or was the defense team at that time 3 working on anything to do with an exchange or transfer? 4 A. We had at all times considered it advantageous both to the 5 client and to the United States of America to think about 6 getting the Sheikh back to Egypt, that in many ways he was a 7 lightning rod as long as he remained here for discontent, for a 8 focus point, if you will, for those elements who felt that a 9 violent answer was the right answer. 10 We thought that by returning him to Egypt -- which is 11 what he wanted also, to go back to Egypt. I think that's 12 reflected somewhere in the tapes that he is telling us that, 13 that this would accomplish a dual goal. The United States 14 would no longer have the responsibility nor perhaps the 15 oppoprobrium of holding the Sheikh. On the other hand, it 16 could accomplish for the Sheikh to at least be in a place where 17 he would have his own language, where he could communicate, 18 where he was considered a person of stature. 19 Q. This is one of these letters that has this name, Osama Bin 20 Laden, Osama Bin Laden, Osama Bin Laden. I think I've got them 21 all. In 1998, who did you think Osama Bin Laden was? I'm 22 talking about 1998 now. 23 A. I guess I mentioned earlier I do continue and I continue to 24 this day to keep up with the news as reported. And at that 25 point we all knew that Osama Bin Laden had been a part of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7633 4AQMSAT4 Stewart - direct 1 wealthy Saudi family, aligned with certain American oil 2 interests and that he had been the renegade part of that 3 wealthy family striking off. He was in Afghanistan and he had 4 been fighting for the United States Government in Afghanistan 5 when we first heard the word Mujahideen. At this point he was 6 named in the indictment for the bombing of the U.S. embassies, 7 and he was definitely the persona that the United States was 8 using in its war on terrorism at that point. 9 Q. Did you want your client's name associated with Osama Bin 10 Laden? 11 A. As a lawyer and as a person, I did not think it was helpful 12 to his case or his conditions to be associated with Osama Bin 13 Laden. 14 Q. Now, Mr. Schuster does say in his letter something about 15 the Sheikh's sons and Bin Laden. Did you have any reliable 16 information about any connection between the Sheikh's sons and 17 Osama Bin Laden? 18 A. No, not at all. But in dealing with the press, sometimes, 19 as I said, the lawyer is able to glean certain information from 20 what they may know that you don't know. And the Sheikh was 21 always asking us to find out where his family -- how his 22 family, where they were, what they were doing. So we I think 23 had hoped -- I had hoped that Mr. Schuster could perhaps give 24 us some information, but actually he was looking for 25 information, which I didn't have at that time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7634 4AQMSAT4 Stewart - direct 1 Q. Did you discuss with your client any information or stories 2 about his sons and Osama Bin Laden? 3 A. No. 4 Q. Why not? 5 A. It was considered to be something outside the pale of what 6 we were talking about. I didn't want him to worry about his 7 children that were perhaps caught up in more -- a more 8 egregious situation that he had concern for and cause for. I 9 thought if anybody had the position to tell him it would be his 10 wife on a phone call to her. I didn't think it was 11 particularly that issue was something I should raise. 12 MR. TIGAR: Your Honor, I'm about to go on to the next 13 subject, which would be the detailed discussion of this 14 so-called will. Perhaps we can take a break. 15 THE COURT: This is a convenient time to break. 16 Ladies and gentlemen, it is not quite 1:00. We will 17 break for lunch until 2:15. 18 Ladies and gentlemen, please remember to follow my 19 instructions. Please, please, don't talk about this case at 20 all. And always remember to keep an open mind until you have 21 heard all of the evidence and I have instructed you on the law 22 and you've gone to the jury room to begin your deliberations. 23 Have a very good lunch and I look forward to seeing 24 you later this afternoon. 25 All rise, please, and please follow Mr. Fletcher to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7635 4AQMSAT4 Stewart - direct 1 the jury room. 2 (Jury not present) 3 THE COURT: See you later this afternoon. 4 (Luncheon recess) 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 7636 4AQMSAT4 Stewart - direct 1 AFTERNOON SESSION 2 2:15 p.m. 3 THE COURT: If Ms. Stewart would take the stand. 4 (Jury present). 5 THE COURT: Good afternoon, ladies and gentlemen. It 6 is good to see you. 7 Ms. Stewart is on the stand. 8 Mr. Fletcher. 9 THE DEPUTY CLERK: Ms. Stewart, you are reminded 10 you're still under oath. 11 THE WITNESS: Yes. 12 THE COURT: Mr. Tigar, you may examine. 13 BY MR. TIGAR: 14 Q. Ms. Stewart, before the luncheon break, we were talking 15 about these typewritten statements that were introduced in 16 evidence by the government. 17 MR. TIGAR: May I show 2638 again, your Honor? 18 THE COURT: Yes. 19 Q. Government Exhibit 2638 in evidence. And this is the one 20 that typed at the bottom says Omar Abdel Rahman and has these 21 words: Destroy their country and make it into pieces and so 22 on. 23 Now, when is the first time you can remember hearing 24 any allegation that your client had uttered or put out or 25 disseminated, whatever, these words? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7637 4AQMSAT4 Stewart - direct 1 A. I believe it was in April of 1996 from the prison in 2 Springfield, and I believe the first time I knew about it was 3 in the New York Times I read about it. 4 Q. Now, in that 1996 period were there SAMs in place? 5 A. No. 6 Q. In that 1996 period who was authorized as a member of 7 anything to do with the defense to visit? 8 A. As I said, all the lawyers were and the paralegals were 9 authorized to visit and some did visit. Actually, I think 10 Mr. Sattar, Mr. Ahmed and Mr. Elmasry, all three visited the 11 Sheikh at the Springfield prison. And I think there was 12 basically no restriction on people that were otherwise on a 13 visitor's list that didn't visit in a legal capacity visiting 14 him. 15 Q. By legal capacity, you mean as part of the defense? 16 A. As part of the defense. 17 Q. Now, did the question of how these things got out or how 18 they were disseminated become an issue in Nasser Ahmed's 19 immigration case? 20 A. Yes. As part of that case the government had alleged that 21 it was Nasser Ahmed that brought them out during a visit that 22 he made to Springfield. That matter was disproved and indeed I 23 think mentioned in the opinion of Judge Livingston. 24 MR. TIGAR: Your Honor, may I exhibit that portion of 25 Government Exhibit 2666 in evidence that refers to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7638 4AQMSAT4 Stewart - direct 1 communication? 2 THE COURT: Yes. 3 Q. I'm placing up on the Elmo this judgment of Judge 4 Livingston. 5 MR. TIGAR: May I read from it, your Honor? 6 THE COURT: Yes. 7 MR. TIGAR: April 15, 1996 message from Sheikh Rahman. 8 The declassified material provided to the respondent shows that 9 the INS had presented evidence in camera implying that the 10 respondent -- 11 Q. Was that Mr. Nasser Ahmed, the respondent? 12 A. Yes. 13 MR. TIGAR: -- carried a message from Sheikh Omar 14 Rahman which was published in the international press on April 15 15, 1996. The material shows that three days after the 16 publication of that letter, 18 tourists were killed and 17 were 17 wounded in Cairo (Exhibit 2-1, page 3). The central importance 18 of these events can be understood when it is observed that the 19 respondent's bail was revoked by the INS and respondent was 20 taken into custody on April 23, 1996. This chronology strongly 21 suggests that concern over the respondent's ability to convey 22 messages from Sheikh Rahman was the primary motivating factor 23 in deciding to revoke the respondent's bail. 24 Although concerns about the letter from Sheikh Rahman 25 were disclosed to the respondent during the 1997 hearing, he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7639 4AQMSAT4 Stewart - direct 1 did not convincingly rebut those concerns until the remanded 2 hearing. At the remanded hearing, the respondent provided 3 prison records to show that other people had contact with 4 Sheikh Rahman in the days and weeks preceding the publication 5 of the Sheikh's letter. Therefore, it is clear that many 6 people had the opportunity to convey Sheikh Rahman's letter. 7 Even more importantly, the respondent showed that the letter of 8 Sheikh Rahman was not related to the killing and wounding of 9 tourists in Cairo. Then it continues. 10 Q. Ms. Stewart, did you have anything to do with disseminating 11 this statement? 12 A. No, nothing whatsoever. 13 Q. And when the government presented evidence in the 14 immigration case about it, was all of that evidence 15 declassified, or was some of it classified? 16 A. I believe it was classified until we came back for what is 17 called in the decision the remanded hearing when there was more 18 declassified. I believe it was not until the second hearing 19 that that particular item was declassified. 20 Q. At that second hearing were you furnished with the name of 21 the government witness who was relating this event? 22 A. No, I don't think we ever learned that. I'm not positive 23 of that, but I don't think we ever learned who that was. 24 Q. With respect to the classification, declassification, did 25 the lawyers representing the government in that proceeding have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7640 4AQMSAT4 Stewart - direct 1 the full text of whatever statements have been obtained? 2 A. I believe they did. 3 Q. Did any agent of the United States Government ever contact 4 you in the 1996 period and ask you to question your client 5 about this message? 6 A. No, no one ever contacted me. 7 Q. Now, did there come a time later, after the 1996 period, 8 when your client did issue a statement concerning his views on 9 violence? 10 A. Yes. 11 Q. And when was that? 12 A. Well, as far as I can recall -- I'm trying to think. It 13 was after -- I'm trying to get the time frames right here. It 14 was in 1997. It was in the fall, the late fall of 1997, after 15 the Luxor massacre and after the Gama'a, the group, had issued 16 a statement calling for a peace initiative. 17 It was after that that the Sheikh, through Ramsey 18 Clark, made a press release in which he stated that he backed 19 the peace initiative. It was a rather strong statement, as I 20 remember, saying that the time had come for peace and peace was 21 what the group should be looking for. 22 Q. Now, looking back, again, at this statement -- 23 MR. TIGAR: May I exhibit 2638 again, your Honor? 24 THE COURT: Yes. 25 Q. Could Sheikh Rahman have typed that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7641 4AQMSAT4 Stewart - direct 1 A. No. 2 Q. Why not? 3 A. He had no typewriter. He didn't speak English. He was not 4 in a position to be typing anything as he was blind. 5 Q. To put matters in the time frame, the Sheikh was sentenced 6 in January of 1996? 7 A. That's correct. 8 Q. And the sentence was -- where did that take place? 9 A. It took place in the same courtroom where the trial had 10 taken place, the third floor of this building. 11 Q. And once he was sentenced an appeal began, correct? 12 A. That's correct. 13 Q. I'd like to go back for a minute and look at some of the 14 materials from your filing system. You recall that Agent Stumf 15 testified? 16 A. Yes. 17 MR. TIGAR: May I have just a moment, your Honor? 18 THE COURT: Sure. 19 MR. TIGAR: Thank you. 20 Q. Earlier -- I'm having trouble pulling these out of this 21 box. There we go. 22 Earlier we looked at some pictures of your office. 23 And now I want to show you some of those again. 24 MR. TIGAR: May I show the witness 2689, your Honor, 25 Government Exhibit 2689 in evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7642 4AQMSAT4 Stewart - direct 1 THE COURT: Yes. 2 Q. Now, just to go through these, this is -- we looked at that 3 yesterday -- your desk? 4 A. Yes. 5 MR. TIGAR: May I show 2690, your Honor, in evidence? 6 THE COURT: Yes. 7 Q. Now, what are in these Redwelds and boxes that we can see 8 in that picture? 9 A. I believe, casting back my memory to four years now -- not 10 four years, not quite. At any rate, I think the Redweld was 11 personal papers having to do with bills, et cetera, and the 12 other box had to do with papers from a case that I was either 13 preparing for trial or that I had completed the trial. I knew 14 what they were when I looked at them, but I couldn't tell you 15 from the picture here. 16 MR. TIGAR: May I show the witness 2695 in evidence, 17 your Honor? 18 THE COURT: Yes. 19 Q. This has been identified by the FBI agent. That's your 20 file room, correct? 21 A. That's the file room. 22 Q. Now I'd like to show you some exhibits in evidence from the 23 FBI search. 24 MR. TIGAR: May I exhibit 2680, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7643 4AQMSAT4 Stewart - direct 1 Q. 2680 was identified here. Where I'm pointing, C is your 2 office, is that correct? 3 A. That's correct. 4 Q. And the file room is the back room where my finger is now, 5 that's H? 6 A. That's correct. 7 Q. And the library is here at D, correct? 8 A. That's right. 9 Q. Is this sketch pretty much accurate? 10 A. Yes, I would say so, it is accurate. 11 MR. TIGAR: May I show the witness, please, Exhibit 12 2601 in evidence, your Honor? 13 THE COURT: Yes. 14 Q. Now, this is something that is in evidence. That's a 15 Redweld file. Why don't you tell us what that is or how that 16 relates to your filing system? 17 A. The filing system works by -- or I should say is supposed 18 to work by virtue of the name of the client and then there is a 19 number assigned to it. Within that file might be any number of 20 subfiles about that client. The Sheikh's material from the 21 trial had all been turned over to Ramsey in 1995, '96 -- Ramsey 22 Clark, that is -- as he had separate offices on West 11th 23 Street, and was subsequently removed to a supporter of the 24 Sheikh who had a basement in Queens that we could utilize. He 25 is referred to, if you will, as Osama in there, some references SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7644 4AQMSAT4 Stewart - direct 1 going to get the files from Osama. 2 Q. Who is Osama? 3 A. He is the leading salesman of Hallal Chicken in the city 4 and he is a person who was an attendee at the Abou Bakr Mosque 5 in Brooklyn. This was a subfile that was supposed to be kept 6 within the Sheikh's larger file. But because we dealt with 7 conditions so often it was probably removed and held 8 separately. It has no number, I note. I just would say 9 parenthetically that we utilized -- how can I put this -- a lot 10 of help that was not particularly skilled help. And so 11 sometimes papers had a way of moving around in mysterious ways 12 and being misfiled. 13 Q. When you say that a case has a number, I just want to be 14 clear about your filing system. Here is a file -- 15 MR. TIGAR: May I show the witness 2603 in evidence, 16 your Honor? 17 THE COURT: Yes. 18 Q. Here is a copy of a file folder received by the FBI. We 19 see Rahman Abdel Omar and a number. What's the number? 20 A. The number is an ongoing series of numbers that started 21 when I first went into practice and then followed by the year. 22 This was a special file -- I probably would have to look in it 23 to know what the subject matter was. But this was a separate 24 file that was started for him either dealing with some separate 25 aspect of the case or some material that we wanted to segregate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7645 4AQMSAT4 Stewart - direct 1 out. But it was a later file started for Omar Abdel Rahman. 2 MR. TIGAR: May I show the witness 2604 in evidence, 3 your Honor, Government Exhibit 2604? 4 THE COURT: Yes. 5 Q. And here is, just to -- this is Nasser Ahmed. What is the 6 number here? 7 A. It is an ongoing series of numbers. Files are kept 8 alphabetically during the life of the case. And then 9 supposedly when they go into storage, at the end of the case, 10 they are filed numerically and we access them -- to use a 11 computer term that is not utilized, but we access them by the 12 number and an old-fashioned three-by-five card system which has 13 the name of every client and the number of their case. 14 Q. Ms. Stewart, you heard Agent Stumf testify, correct? 15 A. Yes. 16 Q. If the jurors want to take something, a piece of paper from 17 your office that's in evidence and look at it, would they be 18 able, by using the exhibits I have just shown you, which are 19 the file folders and Agent Stumf's testimony, to tell where 20 that came from? 21 A. They would be able to tell where she found it. But I think 22 because these were mainly materials in my office, except for 23 the things she said she found in the file room, there was a 24 vast commingling of materials in that wooden box on the floor 25 of my office. I knew what was in there, but I am not sure SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7646 4AQMSAT4 Stewart - direct 1 anyone else really knew. 2 Q. Ms. Stewart, I'd like to turn to the issues that your 3 client faced in the prison. First, the jury has heard evidence 4 about a 1998 conference. 5 MR. TIGAR: May I show the witness, please, Exhibit 6 508T -- 7 THE COURT: Yes. 8 MR. TIGAR: -- in evidence? 9 Q. Now, this is an exhibit that I believe came in with a 10 limiting instruction. However, I wanted to ask you, were you 11 aware at any time that there were groups that were using Sheikh 12 Abdel Rahman's name in the Middle East? 13 A. Yes. I think we knew there were groups using his name. We 14 were not given advanced notice. We were not asked for his 15 permission. There was no contact between any groups or any way 16 of approving or not approving this use. He was a public figure 17 and his name was used pretty much at will by folks. 18 Q. And with respect to this time period I want to ask you the 19 same question I asked you about the earlier time period. Did 20 you want your client in 1998 to be associated with Osama Bin 21 Laden? 22 A. No. I think when he came out and said that he was not 23 favoring -- he was favoring the initiative, that was a 24 breakthrough for us which we thought might soften the Egyptian 25 government into considering taking him back, even if it were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7647 4AQMSAT4 Stewart - direct 1 for him to go to prison in Egypt. 2 Q. Let me ask you about that. This 1997 statement, did you 3 know about Mr. Clark's intentions with respect to disseminating 4 that statement before he did so? 5 A. I don't think I knew about it. He traveled to the Middle 6 East fairly regularly during that time period. I knew he was 7 going to be in Egypt. I knew while he was there he did press 8 releases. It was not a situation where we conferred on every 9 single thing every single time. The lawyers all had autonomy. 10 We consulted when we felt we needed to advise each other, but 11 there was certainly -- there was no knowledge on my part that 12 he was going to release that at that time. 13 Q. Did you discuss it with him afterwards? 14 A. Yes, we talked about it afterwards. 15 Q. And in terms of your view of how you were going to 16 represent your client, how did that statement affect you? 17 A. I think we thought it would open doors to us that hadn't 18 been opened, that it was -- it signalled that far from the 19 American construct, which was of this unreasonable, wild-eyed 20 Islamist fundamentalist, this showed a more reasonable approach 21 and one that perhaps could be opened up to the Egyptian 22 government as a solution to some of their problems as well as 23 what we saw as a solution to the American problem of keeping 24 him on American soil. 25 Q. And what was your understanding at that time -- now I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7648 4AQMSAT4 Stewart - direct 1 talking 1997, '98 -- about the peace initiative? What did you 2 understand that to be? 3 A. Well, it was the cessation of resistance, armed resistance 4 in many cases by the Islamic Group, and it was also a cessation 5 of government criticism as well. It was a period -- it was 6 what we might call a honeymoon period wherein the Islamic Group 7 would no longer be vocal in their criticism of actions taken by 8 the government of Mubarek, that they would not make public 9 statements criticizing the government. 10 Q. Did you personally have any telephone contact or 11 correspondence with Arabic Islamists political figures in the 12 Middle East? 13 A. No. 14 Q. And who did you rely on to get information about the 15 political situation as it affected your client? 16 A. Well, I think I relied upon Nasser Ahmed, interestingly, 17 who still remained close to the case. I relied upon 18 Mr. Sattar, who was, of course, a contact person for the entire 19 defense team for the Middle East, particularly we thought 20 through Muntasir al-Zayyat. I relied on Mr. Yousry, who was a 21 regular reader of the Arabic papers for the purpose of 22 conveying information to the Sheikh through us. In other 23 words, he would buy the Arabic papers before we had a phone 24 call and he would review them with us, and we would -- I'm 25 saying we. I should say I. In the case of where I took the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7649 4AQMSAT4 Stewart - direct 1 calls, I would approve them or not approve them based on what I 2 thought was appropriate for the Sheikh to hear from. 3 Q. Were you aware of any direct contact between any of the 4 people acting as a paralegal and figures in Sudan, Afghanistan 5 and Syria, other places where the Bin Laden group was hanging 6 out? 7 A. No. My mind, I thought all the contacts were Egyptian. By 8 that, I mean in Egypt. 9 Q. You have talked about the prospect -- we did this before 10 the lunch break -- of your client going to Egypt. Did you know 11 of any legal precedent for someone who had been convicted and 12 was in an American prison being transferred, let go to another 13 country? 14 A. Yes, I knew of cases where it had happened. These were 15 mainly within my knowledge, they were transfers to mainly South 16 American countries from federal prisons in America. It was 17 done by treaty. It was done through the State Department 18 basically. And I also knew of a long-term campaign that had 19 been waged to have Sylvia Baraldini, who was a defendant in the 20 Brinks case, where I also represented a client, to have her 21 return to Italy of which she was a citizen and which finally 22 was culminated some time later than this particular time but 23 was culminated and Sylvia did get returned to Italy, although 24 she was in an Italian jail. 25 Q. While we are on this subject I want to say some names that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7650 4AQMSAT4 Stewart - direct 1 have come up in this case and ask you your reaction to these 2 names as you saw them during the period 1996 through 2000. 3 MR. DEMBER: Objection, your Honor, as to reaction, as 4 to vagueness, and relevance. 5 THE COURT: Rephrase. 6 MR. TIGAR: Yes, your Honor. 7 Q. In the period 1996 through 2000, were you familiar with the 8 name a Ayman al-Zawahari? 9 A. I have heard the name, but it had no meaning particularly 10 to me. 11 Q. The name Rifa'i Taha? 12 A. No, I did not know that name, although I believe it was 13 somewhere in my travels I believe in connection with Nasser 14 Ahmed's case I had had an article translated, but it had no 15 meaning at the time and only had meaning after I had sat 16 through this trial, and it was one of the things that was 17 seized at my office. But at the time it was something that was 18 just placed in the file and forgotten about. 19 Q. Were you familiar with the name Muntasir al-Zayyat? 20 A. Yes. Muntasir was a name that was very familiar to me. He 21 was one of the leading civil rights lawyers, human rights 22 lawyers in Egypt. He represented a great many of the Islamists 23 that were held in jail. He had traveled to this country during 24 the Sheikh's trial. And I am not sure whether I met him or I 25 didn't meet him, but I know he was here. And he remained for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7651 4AQMSAT4 Stewart - direct 1 us, for myself and Ramsey Clark, a point person in terms of 2 maintaining contact with supporters in Egypt with people who 3 could, we thought, give us a correct perception of what was 4 happening in Egypt with the government, with the authorities, 5 and with the supporters. 6 Q. Now, as has been pointed out, the Sheikh Omar Abdel 7 Rahman's appeal lasted from January '96 to the Supreme Court's 8 decline of review in November of '99. 9 Beyond being an advisor, did you have a role in that 10 appeal? 11 A. I worked with Mr. Clark and Mr. Schilling, who took the 12 main responsibility for the appeal. I was sort of a fact 13 person since it was my trial. I remembered things happening at 14 the trial, which were useful to them in arguing some of the 15 points on appeal. As far as doing actual writing, I did not do 16 any of the writing. I did review the brief in draft, but I did 17 not do any of the actual writing. 18 Q. Now, during this time when the appeal is going on, did you 19 return to your practice of law? 20 A. I did. 21 Q. And beyond the issues of the appeal, did you view that your 22 client had a right to counsel for issues that were beyond the 23 ones that were being raised in the Court of Appeals upstairs? 24 A. Yes. It is my view and I think it is the view of many 25 lawyers -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7652 4AQMSAT4 Stewart - direct 1 MR. DEMBER: Objection, your Honor, as to view of 2 other lawyers. 3 THE COURT: Yes. 4 Q. It is your view? 5 A. It is my view that an incarcerated client remains in need 6 of counsel. Basically, it is a lifeline to the outside. It is 7 a person to be called if there is any kind of conditions, 8 problem in a jail. It is a person that is to be reached out to 9 should the client learn of something new in the case, something 10 that might change the way in which the verdict or the judgment 11 was ultimately rendered. The right to counsel never ends for 12 an incarcerated client. I know people have a view -- we all 13 have a right to counsel at all points in our life. But 14 particularly someone who is jailed and held by the state has a 15 particular need to keep counsel and to have that counsel 16 available and responsive to them. 17 Q. As far as your own state of mind or knowledge is concerned, 18 is there for a prisoner who is incarcerated and whose appeals 19 are over, is there a right to counsel at public expense? 20 A. No, that does not exist. It is a right to counsel that has 21 to exist between the client and the lawyer and on that 22 understanding. And that is how it has worked. I have a very 23 expansive view. I know it is not as expansive as some lawyers 24 is and it is more than others, but basically my clients always 25 know they can pick up a phone if they are incarcerated, or if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7653 4AQMSAT4 Stewart - direct 1 they are not incarcerated, and reach me. And we will try to do 2 whatever we can to alleviate whatever problem they may be 3 having, whether it is a phone call or actually taking out a 4 writ for them, or whatever it has to be. We don't leave them 5 in the lurch just because they are incarcerated and without 6 funds. 7 Q. Was Sheikh Abdel Rahman the only one of your incarcerated 8 clients that you were responding to during this period 1996 to 9 2002? 10 A. No. I'm a good lawyer, but not a perfect one. And, of 11 course, I had a number of incarcerated clients, both those who 12 were serving time and those who were in jail pending trial; 13 that is, in a pretrial posture. 14 Q. Do you have a way that you keep in touch with clients who 15 are in prison? 16 A. When my office was searched, the computers were taken and 17 on the computers they found long lists of names and addresses 18 of incarcerated persons. Those names and addresses are the 19 Christmas card list. I make it a point to send a Christmas 20 card to everybody I ever represented who is in jail. And I 21 can't be so self effacing to say that it doesn't have a dual 22 purpose. It has a purpose of reminding people that we are 23 still there should they need our services. But it also is a 24 way of remembering people. 25 Q. Now, in this case there have been phone calls and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7654 4AQMSAT4 Stewart - direct 1 discussions, a few in which you're talking and people are 2 talking about your office. I would like to ask you, in your 3 regular law practice, a day in the life of Lynne Stewart 4 dealing with issues, on a day when you don't have a trial, what 5 is your schedule? 6 A. I have a very busy practice, as I described it. I 7 sometimes worry that I'm spread too thin. I'm scattered, that 8 I don't have the opportunity to really hold everybody's hand as 9 much as they would like their hands to be held during trying 10 times. But I try to assure my clients -- and I talk about this 11 when I first meet them -- that I am certainly there for 12 anything of necessity and when their case shifts so that the 13 spotlight is on it, I'm certainly there then. 14 I don't spend a lot of time and, as you can see from 15 the condition of the desk you showed earlier, I have a lot of 16 cases. And the case goes from the top of the pile to the 17 corner of the desk, to the wooden box on the floor sometimes. 18 But it is still my case and I'm still working on it. 19 The day in the life of Lynne Stewart, I actually 20 looked up one of the days in the early days of this trial when 21 there was a message recorded that I left for Mr. Sattar about 22 coming over to the office. And on that day I had about six 23 cases in the Bronx, in Manhattan, and in Queens, and I ended 24 the day by working until about 8 or 9:00, and then meeting my 25 daughter for dinner and going to hear Joyce Carol Oates over at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7655 4AQMSAT4 Stewart - direct 1 Barnes & Noble. 2 It is a very, very busy life. It is going to court, 3 having a case called -- this is usually in state court -- and 4 meeting the calendar, giving the judge an update on the 5 progress on the case. In federal court it is usually an 6 appointment for a specific purpose, to have a conference to 7 discuss where we all are, whether we have the paperwork from 8 the government, whether the motions are going to be filed, 9 shall we set a schedule for this, can we set a trial date. And 10 then dates set in federal court are always for having something 11 purposeful get done. And so there were also the federal court 12 appointments both in this district and in the Eastern District, 13 which is located in Brooklyn, and the Northern District on 14 occasion as well. 15 Q. Let me now turn to your visits to your client, Sheikh Abdel 16 Rahman, in the various facilities. You have talked about the 17 two visits in Springfield, right? Now, can you, just to start 18 with, go through -- can you recall the actual visits that you 19 had with him? You had two in Springfield. There came a time 20 when he was moved to Rochester, right? 21 A. Right. 22 Q. What was your impression of why he was moved to Rochester? 23 A. We had begun a conditions lawsuit in Springfield. We had 24 managed to file, which was greatest impediment to getting this 25 done, we had filed by writing them out at his dictation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7656 4AQMSAT4 Stewart - direct 1 complaints; in other words, that were filed with the Bureau of 2 Prisons about the conditions under which the Sheikh was being 3 held. 4 Q. Let me go back and go through these steps. The lawyers 5 file a lawsuit about conditions in Springfield? 6 A. That's correct. 7 Q. Where did they file that? 8 A. It was filed in Missouri. I am not sure what the vicinage 9 was there, because this was filed by Mr. Clark, but it was in 10 the district court of Missouri. 11 Q. You mean the district -- the federal court or the state 12 court? 13 A. Federal district court. 14 Q. In order for a prisoner to file a lawsuit in a federal 15 court challenging the conditions of his or her confinement, 16 what must the prisoner do first? 17 A. There is a requirement that he must exhaust administrative 18 remedies. That means making the complaints directly to that 19 bureau or group; in this case it would be the Bureau of Prisons 20 and the prison itself, who are inflicting upon him what his 21 lawyers and he consider to be unlawful conditions. 22 Q. Now, have you represented prisoners before that had some 23 issues with their conditions of confinement? 24 A. Yes, many times. 25 Q. Generally, how do these prisoners go about exhausting these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7657 4AQMSAT4 Stewart - direct 1 administrative remedies? 2 A. There are forms that are colloquially known as BP9s, that 3 is, Bureau of Prisons form 9, in which the prisoner lists his 4 complaint, whatever it may be, and there is then a rejoinder 5 from the proper prison official and then that is adjudicated on 6 the first level. 7 (Continued on next page) 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 7658 4AQESAT5 Stewart - direct 1 BY MR. TIGAR: 2 Q. Now, you say adjudicated? 3 A. Not -- one word. 4 Q. You're passing me here. 5 Who does this adjudicating? 6 A. It is done within the prison. It is done with -- it is 7 usually done by the warden or whoever he designates or she 8 designates to do it. 9 Q. And now, what language do you have to fill out your BP9 in? 10 A. English. 11 Q. Do you have to be able to write to do it? 12 A. You have to be able to write. It's carbonized paper but it 13 requires a ballpoint pen and writing. 14 Q. Now, for the prison condition challenge that was eventually 15 filed in federal court in Missouri, how did the lawyers for 16 your client go about exhausting the remedies by filling out 17 these forms? 18 A. Mr. Clark made an arrangement with the officials at 19 Springfield, given the problems that the Sheikh encountered in 20 doing this, being blind and not speaking English, that he 21 could, in fact, fill out the forms and submit them under the 22 Sheikh's name but delineating the basic outline of the problems 23 of the conditions under which he was held. 24 Q. Now, in that lawsuit that was filed in Missouri, what 25 issues were raised? Could you summarize those? What concerns SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7659 4AQESAT5 Stewart - direct 1 did you have? 2 A. I think what was raised basically was that the lack of 3 medical care, based on the fact that there were -- there was no 4 one that spoke the Sheikh's language or could readily ascertain 5 what was the matter with him at any given moment, that he was 6 in a total isolation under the -- under the SAMs, which he was 7 held. 8 That there was no outside -- not allowed visits. 9 That he was basically cut-off in a way that limited 10 his First Amendment rights, I think was also raised, that he 11 couldn't meet with media or the press. 12 This is my recollection, and as I said earlier, my 13 recollection is not the best. And this was another lawyer's 14 product. So I'm pretty sure that's what was raised in this 15 suit, though. 16 Q. Now, after that lawsuit was filed, what did the Bureau of 17 Prisons do? 18 A. They called Mr. Clark and negotiations were opened up as to 19 how we could work this out in some way. 20 Q. And what did you understand was the result of those 21 negotiations? 22 A. The result of those negotiations as I understood it was an 23 agreement that -- not a formal agreement, but an agreement that 24 the Bureau of Prisons would remove him from Springfield, which, 25 as I said, was an old prison and not very up to date or -- and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7660 4AQESAT5 Stewart - direct 1 that they would move him to what was considered the best 2 federal hospital prison in the system, and that was in 3 Rochester, Minnesota. 4 Q. And after the Bureau of Prisons moved Sheikh Rahman to 5 Rochester, what happened to the lawsuit? 6 A. I believe it was dismissed without prejudice. I may not be 7 getting the term of art, but I know the lawsuit was concluded. 8 And I also knew that if we wanted to reinitiate it, it would 9 have to start all over again from the very beginning with 10 exhausting the administrative remedies. 11 Q. And if you wanted to start it again, where would you have 12 to start it? 13 A. In Minnesota. It had to be -- prison conditions lawsuits, 14 this kind of litigation must be done in the district, as far as 15 we know, where the prison is. There may be some exceptions we 16 thought we could try to work on as lawyers, but basic 17 requirement is it's where the prison is that the conditions 18 lawsuit must be brought. 19 Q. Now, after Sheikh Rahman was moved to Rochester, do you 20 remember when is the next time that you saw him? 21 A. I really couldn't tell you, Mr. Tigar. 22 Q. Would it refresh your recollection if I suggest it was the 23 May/June 1998 period? 24 A. It may well be. 25 Q. Now, after your client moved to Rochester -- we're talking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7661 4AQESAT5 Stewart - direct 1 '97/98? 2 A. Yes. 3 Q. -- there came a time somewhere in his confinement that he 4 was made subject to Special Administrative Measures? 5 A. That's correct. 6 Q. Now, from your knowledge when did the SAMs originate? 7 A. I believe it was in April 1997, was the first time that the 8 SAMs were promulgated for him and that they went into effect. 9 Q. Now, before they were promulgated for him, were there rules 10 or regulations issued? 11 Could you turn to Exhibit LS205 in your book there if 12 you have it. I know I've skipped over some things. 13 A. I have 203 and 204 but I don't seem to see 205. 14 MR. TIGAR: May I approach, your Honor. 15 THE COURT: Yes. 16 MR. TIGAR: May I stand here to authenticate the 17 exhibit, your Honor. 18 THE COURT: Yes. 19 BY MR. TIGAR: 20 Q. I'm showing you now what's been marked as LS205. Do you 21 recognize that? 22 A. Yes. It's the rule as promulgated, the rule as promulgated 23 by the Bureau of Prisons or by the Department of Justice also 24 with regard to SAMs. 25 MR. TIGAR: We offer LS205, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7662 4AQESAT5 Stewart - direct 1 THE COURT: All right. No objection? 2 MR. DEMBER: No objection, your Honor. 3 THE COURT: LS205 received in evidence. 4 (Defendant's Exhibit LS205 received in evidence) 5 MR. TIGAR: May I display it to the jury, your Honor. 6 THE COURT: Yes. 7 MR. TIGAR: May I read just a brief segment of it, 8 your Honor. 9 THE COURT: Sure. 10 BY MR. TIGAR: 11 Q. Action, interim rule with request for comments. Date, 12 Friday, May 17, 1996. 13 Summary: This document amends Bureau of Prisons 14 regulations on institutional management with respect to Special 15 Administrative Measures that may be necessary to prevent acts 16 of violence and terrorism that may be caused by contacts with 17 certain inmates. The affected inmate must be notified in 18 writing as promptly as possible of the restrictions to be 19 imposed. Restrictions may be imposed initially for up to 120 20 days and may be extended in further increments of 120 days only 21 upon additional written notification that the circumstances 22 identified in the original certification continue to exist. 23 Now, do you have LS204 there? 24 A. I do. 25 Q. And do you recognize that as the final SAM rule? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7663 4AQESAT5 Stewart - direct 1 A. Yes. 2 MR. TIGAR: We offer LS204, your Honor. 3 THE COURT: All right. LS204 received in evidence. 4 MR. DEMBER: Excuse me, your Honor. My copy of this 5 doesn't have the rule in it, so may I see what Mr. Tigar has 6 presented? 7 THE COURT: Sure. 8 MR. TIGAR: I'm sorry, your Honor. Mr. Dember does 9 not have page five of the exhibit, due to our error. 10 MR. DEMBER: May I see it. 11 MR. TIGAR: Sure. 12 MR. DEMBER: May I have a moment, your Honor. 13 THE COURT: Sure. Why don't -- as long as there's a 14 slight break, why don't we take ten minutes. 15 Ladies and gentlemen, please remember my continuing 16 instructions. Please, don't talk about this case at all. 17 Always remember to keep an open mind until you've heard all of 18 the evidence and I've instructed you on the law, all right? 19 (Recess) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7664 4AQESAT5 Stewart - direct 1 (In open court; jury not present) 2 MR. BARKOW: Your Honor, if we could raise an issue 3 before we go forward. This exhibit, Government Exhibit -- I'm 4 sorry, LS204 and 205, we don't have an objection to the 5 admissibility of 204, but we do want to raise an issue 6 regarding potential instructions, depending on the course that 7 Ms. Stewart's testimony takes right now, about this exhibit. 8 And that is, if the testimony is to move in the 9 direction of her view or her discussion of the content of this 10 exhibit, which includes Bureau of Prisons discussion of 11 comments about the constitutionality of the SAMs and their 12 ultimate determination that in the Bureau of Prisons' view the 13 SAMs are constitutional, we ask that the Court, if Ms. Stewart 14 touches on that in a way that makes this appropriate -- and 15 we're raising it now so that we can stand and object and the 16 Court knows why we're doing so -- that the Court instruct the 17 jury that, first, this evidence and her testimony about it is 18 being offered and admitted only -- and allowed only to show her 19 state of mind and not for the truth as it relates to the 20 constitutionality of the SAMs. 21 And secondly, that the constitutionality of the SAMs 22 is not a defense, or unconstitutionality of the SAMs is not a 23 defense in this case. 24 And we're putting something together now that we can 25 hand up to the Court, a proposed instruction along those lines, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7665 4AQESAT5 Stewart - direct 1 but this touches on some of the issues that have been raised 2 before. 3 THE COURT: I may not be -- it may not be an issue in 4 view of our prior discussions on the subject, so -- 5 MR. BARKOW: It may not, your Honor, but rather 6 than -- if the testimony goes this way with this exhibit, we do 7 intend to stand up and object. And we wanted to raise this 8 before -- perhaps the testimony isn't going in that direction, 9 but since we're taking the break now, rather than going 10 forward, having the testimony begin, objecting and then perhaps 11 needing another break, we thought we could raise it now. 12 This is the proposed instruction that we propose to 13 the Court. I could read it, if this comes up, or we can wait 14 until this becomes more ripe. 15 THE COURT: Mr. Tigar? 16 MR. TIGAR: Your Honor, we had a discussion in which 17 your Honor had the Cheek case, I think, and I'm very well aware 18 of the limitations that your Honor has placed on us in two 19 separate published opinions. We don't intend to trespass upon 20 those. 21 Number two, I think I understand the Cheek case and 22 its provenance in the sort of development of the Court's 23 doctrine, and we briefed that issue fully. We don't intend to 24 be in a place that would call for that instruction. 25 Exhibit 204 -- and I do cop to -- plead to not giving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7666 4AQESAT5 Stewart - direct 1 Mr. Dember the last page of it. It's just a Lexis printout. 2 The reason we did the Lexis printout is that it is identical to 3 Government Exhibit 2635 in evidence, which the government 4 offered and was received. And in order to make it easier to 5 read, we did a printout. 6 MR. BARKOW: I'm sorry. Mr. Tigar may have misheard. 7 We do not object to Exhibit LS204. 8 MR. TIGAR: Right. OK, they don't object. I didn't 9 think they did, and they told us that. 10 So my prediction is to where this direct is going is 11 I'm going to offer now this exhibit, apologize for having not 12 furnished my adversary all the pages, and then note that it is 13 basically the same as a government exhibit in evidence. I'm 14 going to seek leave to place that on the Elmo, and then I'm 15 going to publish portions of it. 16 That will take us a long way towards the end of the 17 day, but at no time do I plan to stray into the area that the 18 government apparently fears that I had in mind doing. 19 THE COURT: And, you know, one reason that I talked 20 these issues out with the parties is that it's not useful, when 21 you talk about straying into areas, to stray into an area that 22 is not a defense and that invites an ultimate instruction from 23 the Court after testimony is given that, you know, that's not a 24 defense. 25 And the defendant has made it clear through, through SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7667 4AQESAT5 Stewart - direct 1 her counsel has made it clear that he's aware of the prior 2 ruling. And I also thought that the discussion on this subject 3 at one of the last conferences was relatively clear. And 4 counsel advises that there's not going to be an issue here. 5 So if all of that somehow proves wrong, then you can 6 ask for another break. 7 MR. BARKOW: If we may, your Honor. If we can inquire 8 through the Court, Mr. Tigar said they intend to publish 9 portions, I believe, of these exhibits, or of LS204. Perhaps 10 if we could be told before that, if we have any objections 11 under the rule of completeness, we can raise those before 12 publication. 13 THE COURT: All right. 14 MR. TIGAR: Yes, your Honor, I'm happy to do that. 15 The government has already published several times 16 this -- and I'm going to now refer to Exhibit 2635. Several 17 times they've published the actual regulations that appear 18 here, and also that appear at the end of this fax. There's 19 some summary material and supplemental information. I propose 20 to publish the discussion, which is out of order in these 21 pages, because 37 -- 33730 comes and then 33731. But those two 22 pages of commentary. 23 Now, the commentary does mention the Constitution, but 24 it does so in the context of saying that these are -- these 25 rules are constitutional. And that was -- and I'm not going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7668 4AQESAT5 Stewart - direct 1 ask Ms. Stewart to comment on that issue at all. I'm just 2 going to publish them. 3 THE COURT: Could you just take a moment to show the 4 government what -- the portions that you're going to read to 5 the jury so that -- 6 MR. TIGAR: Of course. 7 THE COURT: -- there is no contention that some other 8 portion should be read at the same time. 9 MR. TIGAR: Your Honor, the government has no 10 objection because I will be reading the whole thing, OK, except 11 for the actual regulations, which have been published. 12 THE COURT: All right. Let's bring in the jury -- oh, 13 if Ms. Stewart could take the stand, please. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7669 4AQESAT5 Stewart - direct 1 (In open court; jury present) 2 THE COURT: All right. Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded 5 you're still under oath. 6 THE WITNESS: Yes. 7 THE COURT: Mr. Tigar, you may proceed. 8 MR. TIGAR: Your Honor, with apologies to my adversary 9 for leaving off page five of the xerox on his copy, we offer 10 LS204. 11 MR. DEMBER: No objection, your Honor. 12 THE COURT: All right. LS204 received in evidence. 13 (Defendant's Exhibit LS204 received in evidence) 14 MR. TIGAR: Now, your Honor, may I show the jury on 15 the Elmo Government Exhibit, in evidence, 2635. 16 THE COURT: Yes. 17 BY MR. TIGAR: 18 Q. Now, Ms. Stewart, do you remember when this came in 19 evidence? 20 A. I couldn't give you a date and time, no. 21 Q. But you do remember seeing it? 22 A. Oh, yes. 23 Q. Now, I'm going to turn the page and show that this is a 24 page from something called -- let's see if we can do it this 25 way -- the Federal Register. And have you confirmed that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7670 4AQESAT5 Stewart - direct 1 LS204, which has just been received, is a computer printout of 2 the same information that was in Government Exhibit 2635? 3 A. Yes. 4 MR. TIGAR: And, your Honor -- 5 Q. And what is your understanding of what this 2635 and LS204 6 were? 7 A. When the SAMs were first -- that's the Special 8 Administrative Measures -- were first promulgated or put out by 9 the Justice Department and the Bureau of Prisons, under law 10 they must first be given public view in the publication known 11 as the Federal Register, which has rules. 12 They're not laws. Laws are enacted by Congress. 13 These are rules that are affecting various agencies in the 14 executive branch of the government. And this was -- it's 15 either the first publication of these rules or, judging by the 16 date, it may be the second publication of the rules. But these 17 were the rules that ultimately become the SAMs, which have been 18 mentioned here. 19 MR. TIGAR: Your Honor, may I publish for the jury and 20 display on the Elmo, the computer, a legible copy of LS204, the 21 part called supplementary information. 22 THE COURT: Yes. 23 MR. TIGAR: Supplementary information: The Bureau of 24 Prisons ("Bureau") is finalizing its interim regulations on the 25 correctional management of inmates whose contacts with other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7671 4AQESAT5 Stewart - direct 1 persons present the potential for disclosure of classified 2 information that could endanger national security or for acts 3 of violence and terrorism. An interim rule on preventing the 4 disclosure of classified information was published in the 5 Federal Register on October 13, 1995 (60 FR 53490). No public 6 comment was received, and the interim rule is adopted, with 7 only minor changes. In the second sentence of section 8 501.2(a), the word "ordinarily" is added, and the word 9 "housing" is substituted for "placing." This sentence also 10 adds the phrase "interview with representatives of the news 11 media" as another example where privileges may be limited. The 12 existing rule contained a listing that said "...limiting 13 certain privileges, including but not limited to..." In 14 section 501.2(b) the phrase "as soon as practicable" is 15 substituted for "as promptly as possible." None of these 16 revisions change the intent of the rule. 17 An interim rule on preventing acts of violence and 18 terrorism was published in the Federal Register on May 17, 1996 19 (61 FR 25120). Public comment was received on this rule and is 20 responded to below. 21 Now, that interim rule, that was the one we looked at 22 before, is that right? 23 A. That's right. 24 Q. Comments generally expressed concern that the regulation is 25 violative of a person's First Amendment rights, with one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7672 4AQESAT5 Stewart - direct 1 commentator stating that the First Amendment "prohibits 2 governmental interference with freedom of speech and freedom of 3 press." The commenter states that any such restriction must be 4 based on substantial and controlling state interest and that 5 the restriction be the least drastic method of accomplishing 6 the state goal. The commenter believes this restriction may 7 not pass the above test. 8 In response, the Bureau of Prisons notes that the US 9 Supreme Court in Pell vs. Procunier, 417 US 817, 822, 823, 10 (1974) held that "... a prison inmate retains those First 11 Amendment rights that are not inconsistent with his status as a 12 prisoner or with the legitimate penological objectives of the 13 corrections system ... an important function of the corrections 14 system is the deterrence of crime ... finally, central to all 15 other corrections goals is the institutional consideration of 16 internal security within the corrections facilities 17 themselves." We believe this regulation, with its concern of 18 security and protection of the public, meets this test. Nor do 19 we agree with the commenter's suggestion that the rule is 20 unnecessary, since it has not been needed in the past, and, the 21 commenter believes, "no death or injury has resulted from a 22 federal prisoner[']s communication with unincarcerated 23 individuals." It is not necessary to experience such an 24 incident before regulations can be implemented to address the 25 need. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7673 4AQESAT5 Stewart - direct 1 Other commenters acknowledge that the regulation was 2 promoted in order to protect the safety of government officials 3 and the general public, and as stated by one of the commenters, 4 do "not dispute the legitimacy of the goals underlying the 5 interim regulations." Notwithstanding this acknowledgement, 6 these commenters also addressed the First Amendment issue. 7 They viewed the regulation as overbroad, as more expansive than 8 necessary, and as possibly indiscriminately barring expression 9 of speech that does not pose any threat to federal officials or 10 those outside of prison. Other commenters said that the 11 regulation may prevent the press from fully reporting on the 12 very people who "may threaten society the most," and that the 13 regulation forecloses other avenues of obtaining information; 14 that the "complete ban suggested by the regulation ... is 15 legally impermissible," and that the regulation is imposed 16 "without sufficient checks and balances to challenge 17 governmental action." 18 As noted by one commenter, the US Supreme Court has 19 held that the press has no constitutional right of access to 20 prisons or their inmates beyond that afforded the general 21 public. See Pell vs. Procunier, 417 US 817 (1974) and Saxbe 22 vs. Washington Post Co. 417 US 843 (1974). In this context the 23 Bureau of Prisons disagrees with the broad scope of comment 24 that the public is the ultimate decider of what it wants to 25 hear from the inmates. Where the issue is prevention of acts SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7674 4AQESAT5 Stewart - direct 1 of violence and terrorism, it is appropriate for government 2 officials at the highest level and acting on the basis of their 3 intelligence information to impose restrictions on an inmate's 4 public dissemination of information that may cause such acts. 5 The rule, however, in no way is intended to prevent inmates, as 6 suggested by commenters, from communicating about the prison 7 system. In one sense, the government officials, as are the 8 press, are operating on behalf of the public. As noted below, 9 there are means by which disagreements can be addressed. 10 Further, as noted at the time of the interim rule's 11 publication, the application of these measures is likely to 12 affect only a minute portion of the inmate population; those 13 inmates for whom there is an identified concern by a government 14 official of the highest level that the inmate's communications 15 with other persons could serve as an instrumentality for -- 16 turning the page -- acts of violence and terrorism. These 17 measures will be subject to strict controls, as their 18 implementation may occur only upon written notification by the 19 Attorney General, or at his or her direction, by the head of a 20 federal law enforcement agency or the head of a member agency 21 of the United States intelligence community, that there is a 22 substantial risk that a prisoner's communication or contacts 23 with persons could result in death or serious bodily injury to 24 persons or substantial damage to property that would entail the 25 risk of either death or serious bodily injury to persons. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7675 4AQESAT5 Stewart - direct 1 Bureau of Prisons finds this standard consistent with the 2 commenter who suggests "at a minimum, the standards for 3 restrictive inmate privileges, such as those described in the 4 regulation, should be that there is clear and convincing 5 evidence of a substantial risk to death or serious bodily 6 injury." 7 The regulation also addresses commenters' concern that 8 the regulation is overbroad, and that it may indiscriminately 9 bar expression of speech. It is not the intention of the 10 Bureau of Prisons that the restrictions imposed in these 11 special cases routinely include complete curtailment of 12 privileges, including all means of access, but rather the 13 regulation is directed to allowing the imposition of 14 appropriate limitation as needed to prevent acts of violence 15 and terrorism. For example, it is possible in response to one 16 comment that an inmate, subject to the provisions of this 17 regulation, would be allowed to be interviewed by the media, 18 but with the necessary conditions imposed to meet what one 19 commenter refers to as "the legitimacy of the goals underlying 20 the interim regulations." 21 In addition, an inmate upon whom these special 22 restrictions are imposed is entitled to notification in writing 23 of the imposed restrictions and the basis for the restrictions. 24 This ensures the inmate is aware of the rule's implementation. 25 The affected inmate may appeal imposition of restrictions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7676 4AQESAT5 Stewart - direct 1 ordered under this section through the bureau's administrative 2 remedy program, 28 CFR part 542. 3 A commenter correctly points out that the rule does 4 not provide a formal administrative measure by which a 5 noninmate may challenge the restrictions on the inmate's 6 privileges. Such an administrative mechanism is not considered 7 necessary as the inmate is notified of the reasons and of the 8 means to appeal the decision. Certainly, a noninmate may 9 contact the Bureau of Prisons, with the extent of information 10 provided governed by the security concerns involved and the 11 privacy rights of the inmate. Further, this regulation poses 12 no restriction on an individual's right to initiate judicial 13 action. 14 Contrary to one comment, the regulation as promulgated 15 fully conforms to First Amendment requirements and provides an 16 inmate with due process. The inmate is notified of any 17 restrictions imposed and is given the opportunity to appeal 18 those restrictions. It appears the commenter may believe the 19 regulation allows an inmate to be placed in disciplinary 20 segregation status (commenter refers to "placing a prisoner in 21 segregation without a due process hearing"). That is not the 22 case, as a disciplinary segregation placement would not occur 23 on the basis of this regulation, but only as a result of an 24 inmate being found, after a limited due process hearing, to 25 have committed an infraction of an institution's prohibited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7677 4AQESAT5 Stewart - direct 1 act. 2 As previously noted, commenters' concerns appear to 3 relate more to a misapplication of the rule rather than to the 4 purpose of the rule. For example, one commenter stated there 5 was no dispute of the legitimacy of the goals underlying the 6 interim regulations, but saw the regulation as overbroad. 7 Other comments expressed concern over the potential for a lack 8 of accountability and/or abuse, including abuse by government 9 officials who wish to deny the media access for illegitimate 10 reasons, such as "content based suppression of speech." The 11 Bureau of Prisons regulation is promulgated to alleviate such 12 concerns. The rule provides for implementation only at the 13 direction of the Attorney General, or at her designation, the 14 head of a federal law enforcement agency or head of a member 15 agency of the United States intelligence community, coupled 16 with the provision limiting its provisions to 120 days (unless 17 specifically renewed) help ensure against such abuse. The 18 department's standards of professional conduct also serve as a 19 constraint. These provisions, in conjunction with other 20 aspects discussed above, such as the inmate's opportunity to 21 file an administrative appeal and the rule's intent to 22 ordinarily not curtail all access, serve as "checks and 23 balances" on the addressing of this very serious issue of 24 preventing violence and acts of terror. 25 It is unclear as to what is being requested by a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7678 4AQESAT5 Stewart - direct 1 comment that the rule be revised to "prohibit the unilateral 2 involvement of federal law enforcement and intelligence 3 agencies in access decisions." The scope of this rule is to 4 prevent acts of violence and terrorism. The federal law 5 enforcement and intelligence agencies are charged with this 6 responsibility. The rule, as drafted, recognizes this aspect 7 but also carries constraints, such as approval by the Attorney 8 General, reapproval every 120 days and the inmate's right to 9 appeal, to help ensure that the rule is applied appropriately. 10 The Bureau of Prisons is not aware of any further revision that 11 may be made to more effectively achieve the intent of the rule 12 without increasing the potential for acts of violence and 13 terrorism. 14 A commenter suggested that the interim rule be amended 15 to create guidelines specifying the referral of suspicious 16 mails and communications to the appropriate investigative 17 agency. This comment is outside the scope of the current rule. 18 However, it is an issue that the Bureau of Prisons is examining 19 with respect to its internal procedures. 20 A commenter believes that the bureau's rule sets a 21 "dangerous example for the state prison systems which may be 22 less appreciative of the constitutional restrictions on banning 23 speech and, therefore, may be less exacting." In response, the 24 bureau notes that its rule is limited to federal prisons and 25 does not directly affect the state prison systems. The bureau SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7679 4AQESAT5 Stewart - direct 1 fully expects any state that would feel it appropriate to 2 initiate such a procedure would do so with a full awareness of 3 the applicable restrictions. 4 The one change made to this interim rule is in the 5 first sentence of section 501.3(a), where the word "measures" 6 is substituted for the word "procedures." The intent of the 7 section is unchanged. 8 Members of the public may submit comments concerning 9 this rule by writing to the previously cited address. These 10 comments will be considered but will receive no further 11 response in the Federal Register. 12 The Bureau of Prisons has determined that this rule is 13 not a significant regulatory action for the purpose of 14 EO 12866, and accordingly, this rule was not reviewed by the 15 office of management and budget. After review of the law and 16 regulations, the director, Bureau of Prisons, has certified 17 that this rule, for the purpose of the Regulatory Flexibility 18 Act (5 U.S.C. 601 et seq) does not have a significant economic 19 impact on a substantial number of small entities within the 20 meaning of the Act. Because this rule pertains to the 21 management of offenders committed to the custody of the 22 Attorney General or the director of the Bureau of Prisons, its 23 economic impact is limited to the bureau's appropriated funds. 24 This rule will not have substantial direct effects on the 25 states, on the relationship between the national government and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7680 4AQESAT5 Stewart - direct 1 the states or the distribution of power and responsibilities 2 among the various levels of government. Therefore, in 3 accordance with section 6 of EO 12612, it is determined that 4 this rule does not have sufficient federalism implications to 5 warrant the preparation of a federalism assessment. 6 List of subjects in 28 CFR Part 501. 7 Prisoners. 8 Kathleen Hawk, director of Bureau of Prisons. 9 Accordingly, pursuant to the rule making authority 10 vested in the Attorney General in 5 U.S.C. 522(a), 522(a) and 11 delegated to the director, Bureau of Prisons, in 28 12 CFR 0.96(p), part 501 in [*33732] subchapter A of 28CFR, 13 chapter V is amended as set forth below. 14 Now, did you read all that at about the time you 15 received it? 16 A. Yes, I believe so. 17 Q. And thereafter did you become aware that a special 18 administrative measure had been imposed on -- excuse me. 19 Did you become aware at some time that a special 20 administrative measure had been imposed on your client, Sheikh 21 Abdel Rahman? 22 A. Yes, I did. 23 Q. And would you turn, please, to LS203. 24 A. Yes. 25 Q. Now, is this a notification to your client of Special SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7681 4AQESAT5 Stewart - direct 1 Administrative Measures issued in April 1997, that is, between 2 the issuance of the interim rule and the issuance of the final 3 rule? 4 A. Yes, it is. 5 MR. TIGAR: Your Honor, we offer LS203. 6 MR. DEMBER: No objection, your Honor. 7 THE COURT: All right. LS203 received in evidence. 8 (Defendant's Exhibit LS203 received in evidence) 9 MR. TIGAR: May I display this to the jury, your 10 Honor. 11 THE COURT: Yes. 12 BY MR. TIGAR: 13 Q. Ms. Stewart, this is -- we've seen -- during the course of 14 this trial have you seen a number of these Special 15 Administrative Measures? 16 A. Yes. 17 Q. Is this the earliest one of which you're aware that you can 18 remember? 19 A. It is. 20 MR. TIGAR: May I publish it, your Honor, by placing 21 it on the Elmo and reading it. 22 THE COURT: Yes. 23 Q. Now, this is April 3, 1997. Notification to inmate Omar 24 Abdel Rahman, number 34892-054, of special restrictions 25 authorized by 28 CFR Section 501.3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7682 4AQESAT5 Stewart - direct 1 Pursuant to 28 CFR Section 501.3, special 2 administrative procedures. Do you see the word procedures? 3 A. Yes. 4 Q. Now, does that, in your view, relate to the -- and do you 5 recall -- 6 MR. TIGAR: May I display LS204, your Honor. 7 THE COURT: Yes. 8 Q. Do you recall that the -- showing you now page four of what 9 we just read. The word "measures" was substituted for the word 10 "procedures." Do you see that? 11 A. I see that, yes. 12 Q. All right. So at this time they were called procedures? 13 A. That's correct. 14 Q. Pursuant to 28 CFR Section 501.3, special administrative 15 procedures will be implemented regarding your confinement. The 16 Attorney General authorized the implementation of the 17 procedures on March 31, 1997, and delegated the implementation 18 of the procedures to the director for the Bureau of Prisons. 19 Accordingly, the Bureau of Prisons will implement the 20 procedures at this time because of: (1), the nature of the 21 crimes for which you have been convicted; (2) your practice 22 (and the practice of your associates) of making "patch through" 23 calls to others or otherwise communicating with third parties; 24 and (3) concern that you may solicit additional violent attacks 25 upon others. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7683 4AQESAT5 Stewart - direct 1 These procedures are reasonably necessary to prevent 2 you from engaging in additional terrorist activities. 3 Moreover, these procedures are the least restrictive available 4 means to prevent you from engaging in or assisting others from 5 engaging in, or soliciting future terrorist actions or 6 activities. Accordingly, the following Special Administrative 7 Measures -- excuse me, I shouldn't be doing that -- will be 8 implemented by the Bureau of Prisons. 9 Telephone conversations. 10 You shall be limited to telephone calls to your 11 attorney(s) of record and to your wife. Telephone calls to 12 your attorneys and to your wife will be placed by a Bureau of 13 Prisons staff member and the telephone will be provided to you 14 only after the staff member confirms that the person to whom 15 you will speak is your attorney or your wife; 16 Two, you shall be permitted to place telephone calls 17 to your attorney(s) of record only in accordance with the usual 18 existing Bureau of Prisons regulations. Your privilege to 19 place telephone calls to your attorneys is also subject to the 20 following additional restrictions: 21 (a) Your attorney(s) may not patch or transfer 22 telephone calls to third parties; 23 Your attorney(s) may not put you on the telephone or 24 allow conversations with a third party or third parties in the 25 attorney(s) office or offices. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7684 4AQESAT5 Stewart - direct 1 (c) Your attorney(s) must instruct his/her/their 2 staff members that only your attorney or attorneys may speak 3 with you and that your telephone conversations may not be 4 patched or transferred to third parties; 5 (d) Your attorney(s) must sign an affirmation 6 acknowledging that he/she/they will abide by the 7 above-referenced restrictions. 8 Three, you shall be permitted to place one telephone 9 call per month to your wife. All telephone calls to your wife 10 shall be monitored by an Arabic interpreter and shall be 11 recorded. Your telephone calls to your wife shall not be 12 patched or transferred to third parties and your wife shall not 13 allow a third party to participate in any telephone 14 conversations. 15 Four, if translation or analysis indicates that any 16 portion of your conversation with your wife concerns passing of 17 messages requesting, suggesting, soliciting or encouraging acts 18 of violence or other crimes, your privilege to place telephone 19 calls to your wife shall be terminated. 20 Visitation. One, you shall be permitted to visit only 21 with family members and your attorney(s) and only in accordance 22 with existing Bureau of Prisons regulations. You shall only 23 visit with one person at a time, except that to the extent that 24 you have more than one attorney and a translator is necessary, 25 two attorneys and a translator may visit at one time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7685 4AQESAT5 Stewart - direct 1 Two, translators shall only visit you in the presence 2 of an attorney or attorneys or for the purpose of facilitating 3 communication with the Bureau of Prisons. Translators shall 4 not be alone in the room with you. Translators will only be 5 allowed to perform translation duties in accordance with the 6 usual existing Bureau of Prisons regulations. In addition, 7 translators may not perform translation duties without prior 8 written clearance from the Bureau of Prisons after consultation 9 with the Federal Bureau of Investigation and the United States 10 Attorney's Office for the Southern District of New York. 11 Mail. 12 One, your attorneys shall not forward your mail to 13 third parties. 14 Two, except for legal mail addressed to your 15 attorney(s) of record, all outgoing mail shall be opened and 16 its distribution may be delayed for a reasonable period to 17 allow for translation and analysis. If your outgoing mail is 18 determined to contain requests, suggestions or solicitations 19 for illegal activities, it shall not be delivered. Outgoing 20 mail directed to a member of the news media shall be delayed 21 for a reasonable period of time to ensure that it does not 22 contain any request, suggestion, solicitation or encouragement 23 of illegal activities. 24 And then attestation. The following individuals 25 advised and witnessed the delivery and notification of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7686 4AQESAT5 Stewart - direct 1 above-referenced Special Administrative Measures to inmate Omar 2 Abdel Rahman on April 3, 1997. Then there's a space for 3 signatures. 4 Now, going back to 1997. 5 A. Yes. 6 Q. And looking at this notification, the regulations and the 7 comment, how did you interpret these regulations and the SAMs 8 that were starting to come out? What did you think was going 9 on here? 10 A. Well, I believed that this was an attempt to silence my 11 client, Sheikh Omar, on the part of the government. I 12 recognized that they had promulgated these regulations and that 13 they were indeed accepted using the usual measures. We had 14 discussed them. And as attorneys, Mr. Clark, myself and 15 Mr. Jabara, and we had come to certain conclusions about them. 16 And those conclusions were basically that they could not be 17 meant, given the least restrictive alternative language, to 18 mean that they could interfere with what we were enjoined to do 19 by the ethics under which we operated. 20 In other words, although these were regulations, these 21 were not to be interpreted as interfering with the right of the 22 attorney/client privilege; the right of the client to consult 23 with an attorney; the right to raise conditions issues; indeed, 24 many of the other rights. As time -- 25 Q. Go ahead, I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7687 4AQESAT5 Stewart - direct 1 A. No. No. As time progressed, of course, there was more 2 interpretation by us of how these regulations operated with 3 regard to the attorney, client and the privilege and the way 4 that this operated with regard to Omar Abdel Rahman. 5 Q. I want to be clear: Are you saying that you are claiming 6 in this case now before this jury that these regulations are 7 unconstitutional? 8 A. No. 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 7688 4AQMSAT6 Stewart - direct 1 Q. What I'd like to do is look at some of the SAMs and 2 affirmations. You saw any number of affirmations, is that 3 right? 4 A. Yes. 5 Q. And as you sit here today, Ms. Stewart, do you believe that 6 you ever conspired with anyone to defraud the United States of 7 America, the Department of Justice and the Bureau of Prisons 8 out of its right to have these SAMs applied and enforced? 9 A. I did not. 10 MR. TIGAR: Your Honor, may I display Government 11 Exhibit 319 on the Elmo? 12 THE COURT: Yes. 13 Q. Ms. Stewart, I am going to show you what's admitted in 14 evidence as Government Exhibit 319. Is that another one of 15 these notifications? 16 A. It is. 17 Q. And that's dated January 15, 1998? 18 A. That is correct. 19 Q. To remind us, this is page 4 and this was published to the 20 jury where it says inmate Rahman refused to sign, correct? 21 A. That is correct. 22 Q. Now, were you and the other lawyers at the prison when 23 these were read to your client? 24 A. To my knowledge, never, no one was ever at the prison when 25 these were read to the client. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7689 4AQMSAT6 Stewart - direct 1 MR. TIGAR: Your Honor, may I place on the Elmo and 2 display Government Exhibit 3 in evidence? 3 THE COURT: Yes. 4 Q. Ms. Stewart, do you have that? 5 A. I do. 6 Q. Let me go down to the bottom of the page. That says May 7, 7 1998. Is that your signature? 8 A. That is my signature and that is the date. 9 Q. And you wrote the 7 in there? 10 A. I wrote the 7. 11 Q. Did you sign that? 12 A. I did. 13 Q. And attached to it did you see this when you got it, this 14 notification of Special Administrative Measures? 15 A. Yes, I did. 16 Q. What was the practice with respect to these affirmations? 17 I'll be showing you quite a few of them, but let's get started. 18 How did you get this thing so that you could sign it and send 19 it back? 20 A. They usually arrived by regular mail at my law office. It 21 was usually a copy of the after -- an affirmation accompanied 22 by the SAMs then in effect, the Special Administrative 23 Measures. But then again sometimes it wasn't the ones that 24 were in effect. It was the ones that had been in effect a 25 couple of months earlier. It was -- there were usually a few SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7690 4AQMSAT6 Stewart - direct 1 typos, a few problems connected with the affirmation itself. 2 It was not done regularly, that is, in the sense that sure 3 enough as soon as day one arrived the SAM would arrive. It was 4 done intermittently. So it was not done regularly is all I can 5 say. And that is how they arrived, by regular mail. 6 Q. Did they come to you from Janet Reno or Kathleen Hawke? 7 A. No. They were sent by Patrick Fitzgerald, as far as I 8 knew. That was the return address, as far as I remember, on 9 the envelopes, usually. 10 Q. Now, was that the same Patrick Fitzgerald that appeared 11 here? 12 A. Yes. It was my adversary during the ten-month trial and 13 who, to our knowledge, was the supervisor of these Special 14 Administrative Measures and the way in which our client was 15 held at the prison, whether it was Rochester or Springfield. 16 Q. You told us that at that trial there were three government 17 lawyers, Mr. McCarthy, Mr. Khuzami, and Mr. Fitzgerald? 18 A. That is correct. 19 Q. Who was the first chair in that, as you've used that term 20 for the government? 21 A. That was Andrew McCarthy. 22 Q. What chair did Mr. Fitzgerald have? 23 A. I believe he was the second chair. I could be wrong. He 24 could have been the third chair, but he was either second or 25 third. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7691 4AQMSAT6 Stewart - direct 1 Q. You mentioned -- what kind of -- in terms of your work with 2 the case, what kind of relationship did you feel you had with 3 Mr. Fitzgerald? 4 A. We had a professional relationship. I think we each 5 respected each other's ability. He is a man of great ability. 6 I don't think we ever had a personal discussion, but I think in 7 terms of a ten-month trial you get to know people fairly well. 8 I respected his abilities. I don't think that I understood or 9 was in sympathy with a lot of his motivations. 10 MR. TIGAR: May I show Ms. Stewart Government Exhibit 11 7, your Honor? 12 THE COURT: Yes. 13 Q. Let me scroll down here. Is that your signature? 14 A. Yes, it is. 15 Q. And this is an affirmation that you signed on or about what 16 date? 17 A. Well, I seem to have crossed out the April and inserted May 18 16, 2000. 19 Q. Do you have any recollection of when you actually signed 20 this? 21 A. I believe I signed it on May 16, 2000. 22 Q. And on May 16, 2000, what were you engaged in doing? 23 A. We were planning a trip to Minnesota to visit Sheikh Omar 24 at the Rochester federal prison facility. When I say we, I 25 mean myself and Mr. Yousry, the interpreter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7692 4AQMSAT6 Stewart - direct 1 Q. Now, you mentioned a minute ago that sometimes there were 2 typos in these documents. Is there one in this one? 3 A. I didn't correct it if there was. Maybe the date -- 4 Q. I'm putting my finger over December 10, 2000. 5 A. Oh, yeah, that would be a mistake, wouldn't it, because it 6 was only May of 2000 when I signed it. Obviously, the SAMs 7 could not have been issued dated December 10, 2000. 8 MR. TIGAR: May I display Government Exhibit 6, your 9 Honor? 10 THE COURT: Yes. 11 Q. Was there a Special Administrative Measure enclosed with 12 this affirmation? 13 A. There was. 14 Q. I am going to show you first the attorney affirmation as 15 part of a Government Exhibit 6. Is this an unsigned version of 16 what's in evidence as Government 7? 17 A. Yes, it is. 18 Q. Showing you also from Government 7, do you see the date 19 December 10, '99? 20 THE COURT: Government 7 or Government 6? 21 MR. TIGAR: I'm sorry, Government 6, your Honor. 22 Thank you. 23 Q. Showing you this page of Government Exhibit 6 in evidence, 24 you see the date December 10, '99? 25 A. I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7693 4AQMSAT6 Stewart - direct 1 Q. Now, in your view of the matter can a lawyer violate the 2 SAM? 3 A. No. Because they are regulations directed at the inmate. 4 That is, the Bureau of Prisons promulgates these with regard to 5 a particular person that they are holding in their custody. In 6 this case, Sheikh Omar Abdel Rahman. 7 Q. However -- 8 MR. TIGAR: May I show Government Exhibit 7, your 9 Honor? 10 THE COURT: Yes. 11 Q. You agreed to abide by the SAMs, correct? 12 A. Yes. 13 Q. And that was your affirmation, correct? 14 A. Yes. 15 Q. Did you ever sign a false affirmation? 16 A. I did not. 17 Q. Now, when you dealt with your client, at this time what 18 lawyers were involved in telephone calls and prison visits? I 19 want to start with that, beginning from when the SAMs were 20 imposed. 21 A. It was myself, Ramsey Clark, and Abdeen Jabara. 22 Q. Was Mr. Schilling ever involved? 23 A. He was involved in the calls, but I don't know whether he 24 signed the SAMs or not. 25 Q. Now, let's start with the calls. When you say the calls, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7694 4AQMSAT6 Stewart - direct 1 what are we talking about here? 2 A. Under the SAMs the Sheikh was permitted to place -- he 3 didn't place it. It was placed by the prison authorities -- to 4 call the attorneys twice a week. It was done on a Tuesday, as 5 I recall, and on a Friday. It was done in the morning hours; 6 that is, the call would come in around 10:00 New York time 7 having been placed -- it would come in, yes, 10:00 New York 8 time, having been placed at 9:00 Minnesota time. 9 Once the prison officials ascertained that it was the 10 lawyer on the phone by asking, is this Ms. Stewart or Mr. Clark 11 or Mr. Jabara, they would then go through a series of questions 12 with us about patching the calls or letting anybody else listen 13 in. We would usually say Mr. Yousry is here with us as the 14 interpreter, and then the call would be -- I guess the phone 15 would be handed to the Sheikh. 16 Q. Now, you mentioned Mr. Yousry as the interpreter. Did he 17 serve as the interpreter for all of the calls in which you 18 participated beginning from the time when the SAMs were 19 imposed? 20 A. Yes. I believe he served as the interpreter for all the 21 calls. We attempted to get another interpreter approved by Pat 22 Fitzgerald or Pat Fitzgerald acting in his capacity for the 23 SAMs and the Bureau of Prisons. We were never able to get any 24 other interpreter approved by them. 25 Q. Did you expect, as the lawyer, that you would have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7695 4AQMSAT6 Stewart - direct 1 confidential attorney-client communications with your client? 2 A. Yes. 3 MR. TIGAR: May I show the page from Government 4 Exhibit 6, your Honor, on the Elmo? 5 THE COURT: Yes. 6 Q. Now, I'm showing you a portion of the SAM and do you see 7 4b, after initiation of SAM and prior to the inmate's attorney 8 being permitted to have attorney-client privileged contact with 9 the inmate, the inmate's attorney shall execute the attorney 10 affirmation? 11 A. Yes. 12 Q. Did you rely on that? 13 A. I did rely on that. 14 Q. Now, the jury has had translated a number of these 15 telephone calls and may hear more of them. What procedures did 16 you use with respect to the calls in preparation for them? 17 A. Usually, Mr. Yousry would arrive in advance of the calls, 18 although sometimes he would arrive after the call was already 19 received, depending on the exigencies of city life, traffic and 20 parking and what have you. And he would bring with him the 21 newspapers. He would have already read them and he would 22 translate them aloud to me as far as what would be offered to 23 the Sheikh and whether it was approved by me for reading. 24 I would have any material that I needed to read to the 25 Sheikh that might be some communication from Pat Fitzgerald or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7696 4AQMSAT6 Stewart - direct 1 it could be indeed a letter involving his family or numerous 2 things. But we basically did law business. We discussed what 3 was happening with the cases and then Mr. Yousry would usually 4 read the newspapers to the Sheikh, approved by the lawyer, me 5 in this case, and done as a means of giving him at least some 6 window on the world since he was cut off, no radio, no means of 7 communication. 8 This would usually take the better part of an hour and 9 at that point the call would be ended and we would wait until 10 the next call. 11 Q. You say it would take the better part of an hour. Did you 12 have for your calls unlimited time? Did you talk to your 13 client as much as you wanted? 14 A. No. 15 Q. And who sent the amount of time that you would be permitted 16 to have on the telephone with your client? How was that 17 determined? 18 A. My understanding was the Bureau of Prisons guard or legal 19 advisor or whoever it might be on the specific occasion would 20 indicate, okay, Omar, time is up and at that point the Sheikh 21 would turn over the phone. Or they sometimes did give him the 22 courtesy of five minutes so we could conclude whatever we were 23 talking about. 24 Q. Now, you don't speak Arabic? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7697 4AQMSAT6 Stewart - direct 1 Q. First, a moment ago you talked about newspapers? 2 A. Yes. 3 Q. Now, what standards or judgment did you use to determine 4 whether or not a particular newspaper article was something 5 that was suitable to be read to your client? 6 A. Mainly -- and I would say almost exclusively -- these were 7 articles touching upon whatever was the political scene in 8 Egypt and those things which would affect the political scene 9 in Egypt. They were thus definitely connected to his case. It 10 had to be related in some way to where we were going with this 11 case, to what we thought about this case. 12 Sometimes it related to, I remember myself having 13 clippings from the Times regarding the law, changes in law that 14 we thought might be efficacious to raise for him and to inform 15 him about. One of the most important things I think that a 16 lawyer does with a client is to keep hope alive. A person who 17 is serving a life plus 65 sentence can easily become extremely 18 depressed, and so we would give him whatever we thought was 19 working in his behalf, and we would also give him what we 20 thought wasn't working in his behalf as well because he, of 21 course, had an absolute right to know what the truth was. 22 Between those two is what -- those were the judgment 23 calls on the newspaper clippings. 24 Q. As a lawyer making decisions about your client's case, can 25 you give us a concrete example of how an article about some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7698 4AQMSAT6 Stewart - direct 1 political event in Egypt would be something that could help you 2 and your client communicate about what you wanted to achieve 3 for him? 4 A. Yes. For example, when there was a release of some of the 5 prisoners that had been convicted in the Sadat case, it was 6 important that he know about this since he, of course, had been 7 indicted but acquitted of that case. But when they were 8 released from prison, as some of them were, it would be 9 important for him to know that because it would indicate and we 10 would discuss whether this revealed a certain softening on the 11 part of the Mubarek government which may well be exploited by 12 the lawyers in Egypt to see if they could not make some 13 approach and see if we could not get the Sheikh back to Egypt, 14 which was after the end of the appeals. That was basically one 15 of our only -- besides dealing with his conditions here, but it 16 was our only road to really accomplishing something positive 17 for him. 18 Q. If Egypt was such -- you did the Nasser Ahmed case, right? 19 A. I did. 20 Q. And he wanted to stay in the United States? 21 A. Yes. 22 Q. He didn't want to go back to Egypt? 23 A. No. 24 Q. Why did your client want to go back there? 25 A. He was in a different position than Nasser Ahmed. Nasser SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7699 4AQMSAT6 Stewart - direct 1 Ahmed had family and children in the United States. The Sheikh 2 had family and children in Egypt. He was a person of great 3 respect. He was a person who was noticeable. He was a person 4 that could not be ignored were he to be returned. He would not 5 be subject to the same kind of disappearing or being placed in 6 prison and subjected to some type of government, let's call it 7 misaction toward him. That's not a word, I don't think -- 8 MR. DEMBER: Objection, your Honor. 9 THE COURT: Overruled. 10 A. It was our belief that the Sheikh, based on his stature, on 11 the respect that it was always accorded to him would indeed be 12 able to survive in the prison. It was not such a case with 13 Nasser Ahmed. 14 Q. Whose decision was it whether he would -- was it your 15 decision to make for him whether he would want to go back 16 there, or was it his? 17 A. That was his decision. I believe he even may have repeated 18 in one of the tapes we heard that at least in Egypt you can't 19 give the guard a couple of Egyptian dollars or something and 20 get some food that's decent. You can be visited by your family 21 and friends. You have an opportunity to relieve the conditions 22 in many ways. 23 Q. On a number of the calls and visits that we have seen and 24 that we will talk more about there is this issue of the 25 commissary. Based on your experience of representing people in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7700 4AQMSAT6 Stewart - direct 1 federal -- wind up in federal prison, what's commissary? How 2 does a lawyer help people deal with commissary? 3 A. In my experience, people who are in prison, the world 4 becomes very constricted. It does become the day-to-day life 5 that is marked by the opening and closing of that jail cell 6 door. And within this there are very few things to relieve 7 that terrible isolation that the Sheikh certainly experienced. 8 One of the things that relieved it was commissary. Commissary 9 is the ability of inmates to order from a store, if you will, 10 at the prison various items that are comfort, I guess. They 11 are comfort foods, they are junk foods. They are something to 12 look forward to. And as a result, when deprived of them it is, 13 I think, the ultimate deprivation; that is, there is really 14 nothing to look forward, but just endless days. 15 MR. TIGAR: Your Honor, we have reached a transition 16 point and it is just about 4:30. May I suggest we break? 17 THE COURT: Okay. 18 MR. TIGAR: Thank you. 19 THE COURT: Ladies and gentlemen, we are going to 20 break for the day. 21 It is very, very important that you follow my 22 instructions scrupulously. Please, do not talk about this case 23 at all among yourselves or with anyone when you go home this 24 evening. Please, please remember, don't look at or listen to 25 anything to do with the case. If you should see or hear SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7701 4AQMSAT6 1 something inadvertently, please simply turn away. Again, as 2 I've told you before, you are in the best position to see and 3 hear everything that is relevant to your decisions in this 4 case, so please don't look at or listen to anything else. 5 Please don't look at or listen to anything about the case when 6 you go home. If you should see or hear something 7 inadvertently, just turn away. 8 Finally, as I've always told you, please always keep 9 an open mind until you have heard all of the evidence, I've 10 instructed you on the law, you've gone to the jury room to 11 begin your deliberations. Fairness and justice to the parties 12 requires that you do that. 13 With that, have a very good evening, and I look 14 forward to seeing you tomorrow morning at 9:30. Have a good 15 evening. 16 All rise, please. Please follow Mr. Fletcher to the 17 jury room. 18 (Jury not present) 19 THE COURT: Ms. Stewart may step down. 20 Please be seated. 21 THE COURT: Mr. Dember. 22 MR. DEMBER: Yes, your Honor. Your Honor, you asked 23 me about the motion in limine that was filed this morning by 24 Ms. Stewart. And unless circumstances change, your Honor, we 25 have no intention of filing an opposition. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7702 4AQMSAT6 1 THE COURT: The second issue then is there were 2 various transcripts that Mr. Ruhnke was working on. 3 MR. RUHNKE: Your Honor, in our case we are continuing 4 to discuss it. I'm fairly confident -- we are actually just 5 down right now to talking about testimonial stipulation in lieu 6 of an actual translator being called. The government has our 7 versions. I don't think they have any factual quarrel with the 8 contents of the transcripts. But we are continuing to discuss 9 that. It does not appear that we are going to be getting to 10 our part of the case until at least next week. 11 THE COURT: No. But there are -- 12 MR. RUHNKE: The transcripts in Mr. Tigar's case. 13 THE COURT: Right. 14 MR. RUHNKE: Those, I don't know the status of. It 15 has sort of shifted back to the discussion -- 16 THE COURT: I thought you were working on that, too. 17 MR. RUHNKE: There has been a little miscommunication 18 on that issue who has been working on what. We signed some 19 stipulations today that I think take care of it, but I am not 20 sure. 21 MR. TIGAR: Your Honor, there are two issues. One is 22 the authenticity of the actual electronic recordings. I 23 believe that issue is now resolved by stipulations that we have 24 reached with the government. 25 Then the next question is the content of the calls. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7703 4AQMSAT6 1 Well, we don't intend to perform or have -- present to the jury 2 the Arabic material. I mean, Ms. Stewart doesn't speak that 3 language. And with her on the stand it doesn't make any sense 4 for us. 5 Mr. Yousry, when his turn comes, will be presenting 6 that. And so as a matter of economy, the only materials that 7 we will want the jury to hear or hear about from Ms. Stewart 8 are the English language conversations in which she 9 participated. And as to that, since she was there and heard 10 them, she can say, yes, this is me. 11 Then, of course, there is a -- there may be relevancy 12 issues as to some of those and there are hearsay issues. We 13 are not offering any of them for the truth of the matters 14 asserted. 15 There is, I think, a relevancy determination as to 16 certain pages of a transcript that Mr. Dember has raised. May 17 I just have a moment? 18 We accept Mr. Dember's proposal as to the redaction or 19 taking out of what he regards the irrelevant matter as to that 20 conversation. He didn't want us to put in something about some 21 delicatessen. 22 MR. DEMBER: I am not sure what Mr. Tigar is talking 23 about. If he is referring to Exhibit 706, he just indicated a 24 moment ago that he wasn't planning on using that in his case. 25 I'm lost. Which exhibit are you referring to? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7704 4AQMSAT6 1 THE COURT: Should we take five minutes? 2 MR. TIGAR: Your Honor, if we take five minutes, I 3 think we are going to work this out. In part, because I'm 4 having trouble hearing Mr. Dember's words right now. 5 Your Honor, I have reviewed the correspondence. What 6 I said a moment ago was, I think I agree with Mr. Dember. I 7 think that we can safely adjourn for the day with that 8 understanding, without the need for the Court's intervention. 9 THE COURT: The gist of having reviewed the prior 10 correspondence and listening to the parties is I think what the 11 parties are telling me is that the transcripts that Ms. Stewart 12 had been intending to offer in the 700 series, the defendant 13 intends to offer not for the truth of anything that is said and 14 accepting the government's proposals with respect to the 15 redactions that the government asked for on the grounds of 16 relevance and that's, I think, what the defendant was telling 17 me just now. 18 MR. DEMBER: Your Honor, if they are agreeing with us, 19 that's fine. 20 MR. TIGAR: Yes, your Honor. 21 THE COURT: There you go. 22 Please be here at 9:00 tomorrow morning. Have a good 23 evening. I look forward to seeing you tomorrow. 24 (Adjourned to Wednesday, October 27, 2004 at 25 9:00 a.m.) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7705 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 7533 4 Direct By Mr. Tigar . . . . . . . . . . . . 7533 5 DEFENDANT EXHIBITS 6 Exhibit No. Received 7 LS406 . . . . . . . . . . . . . . . . . . 7604 8 LS205 . . . . . . . . . . . . . . . . . . 7662 9 LS204 . . . . . . . . . . . . . . . . . . 7669 10 LS203 . . . . . . . . . . . . . . . . . . 7681 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300