7706 4ARMSAT1 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 27, 2004 8 9:30 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 STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7707 4ARMSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 MR. TIGAR: Good morning, your Honor. 4 THE COURT: Good morning. 5 MR. TIGAR: We have been discussing, the government 6 and Ms. Stewart's defense team, a proposed instruction on the 7 disclosure to the jury of attorney-client communications 8 because Ms. Stewart is going to be talking about that in some 9 detail. We have reached agreement on all but one issue, and 10 Mr. Morvillo has the agreed language. 11 The basic issue is this. We believe that the Court 12 should instruct the jury that the Court has decided it is 13 legally permissible to hear certain communications between 14 Sheikh Abdel Rahman and his attorneys and that it is 15 permissible for the attorneys, including Ms. Stewart, to 16 disclose communications with their client, so that there is no 17 wondering about that. 18 The government has agreed that the attorney-client 19 privilege should be mentioned to the jury as a basis for that 20 law. They do not agree to our sentence that says: You have 21 also heard about the lawyers' obligations to maintain the 22 secrecy of communications with her client. That is, because 23 there are two rules here that the Court has addressed in the 24 course of ruling on these things that are the Court's business 25 and not the jury's. One is that the attorney-client privilege SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7708 4ARMSAT1 1 is not a bar to the jury to hear what they have heard and will 2 hear, and the second is that the lawyer is free from the 3 strictures of the disciplinary rule that requires maintaining 4 the secrecy of client communications. Those are two different 5 bodies of law and, therefore, a proposed instruction would 6 mention both of them. 7 THE COURT: Could you pass up the proposed 8 instruction? 9 MR. TIGAR: Yes, your Honor. 10 MR. MORVILLO: I'm handing it to Mr. Fletcher, your 11 Honor. 12 MR. TIGAR: The disagreement centers -- the markings 13 indicate agreement. The disagreement centers on the lawyers' 14 obligation. 15 MR. MORVILLO: That would be the sentence that begins: 16 You have also heard about the lawyers' obligations, your Honor. 17 THE COURT: A couple of points. The blue is agreed to 18 by the parties? 19 MR. MORVILLO: Yes, your Honor. Except with respect 20 to the sentence that begins: You have also heard about the 21 lawyers' obligations. That's the subject of the dispute. But 22 everything else in blue is agreed upon. 23 THE COURT: Well, the reason that I ask is, first of 24 all, what's the problem with saying you have also heard about 25 lawyers' obligations to maintain under certain circumstances SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7709 4ARMSAT1 1 the secrecy of communications? It is actually with their 2 client rather than from their client. 3 MR. MORVILLO: Your Honor, the attorney-client 4 privilege is a rule of evidence. The Court made a 5 determination in this case that the attorney-client privilege 6 did not apply. Therefore, it would be appropriate for the 7 Court as a matter of law to instruct the jury that you have 8 made an evidentiary determination that the jury can hear that 9 evidence. The attorney's ethical obligations are not a matter 10 of an evidentiary issue and, therefore, it would be -- it is up 11 to the witness, Ms. Stewart in this case, to testify, if she 12 likes, and reveal those client communications. She has not 13 come to the court and asked for a ruling allowing her to do so. 14 Therefore, the government believes that it is not 15 appropriate for the Court to endorse her ethical obligations or 16 her decision to reveal secret or attorney-client 17 communications. It all flows from the attorney-client 18 evidentiary decision. And we think that that is enough for the 19 Court to instruct the jury that the attorney-client privilege 20 doesn't apply. And she can in her testimony, as she did 21 yesterday, say, she is under an obligation not to reveal 22 attorney-client communications. That's an ethical issue. It 23 is not a matter of law that this Court has been asked to rule 24 on. Therefore, we don't think that it should be a part of any 25 instruction to the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7710 4ARMSAT1 1 THE COURT: Mr. Tigar. 2 MR. TIGAR: This was a matter that was discussed 3 earlier and I recall your Honor saying at some point, of 4 course, Ms. Stewart, now that she is under attack, would be 5 entitled under the DRs to reveal. The Court said that in 6 passing, but I'll tell you our view of the law. And that is 7 that without an authoritative statement by a judicial officer, 8 a lawyer can't just decide, now I am going to defend myself 9 and, therefore, I am going to reveal conversations with the 10 client. 11 A part of this proposed instruction is to reflect what 12 I understood to be the context here and that is the Court had 13 agreed that Ms. Stewart is entitled to reveal these 14 conversations with her client as a matter of her own defense. 15 If the Court -- if the government's position is that this Court 16 is powerless to say that she can do that, then we have to go to 17 the appellate department and get a ruling. I thought this was 18 uncontroversial, your Honor. 19 THE COURT: I think it is uncontroversial, too, 20 because there are so many reasons that the content of these 21 conversations are not protected by any privilege which I 22 have -- which I initially explained and which Sheikh Rahman's 23 counsel then came forward and said, well, gee, if those 24 conversations aren't protected, we are not going to assert the 25 privilege with respect to any of those conversations so that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7711 4ARMSAT1 1 not only was there a finding by the Court, but there was also a 2 waiver by the client. 3 So there is no question in my mind that the 4 conversations are not protected, and not being protected can be 5 testified to. 6 Now, if there really is a dispute between the parties 7 on this, I will make the instruction far more general and I can 8 say that there were various rules that apply with respect to 9 the disclosure of communications between an attorney and a 10 client. These are rules of law. I have decided in this case 11 that it is legally permissible for the government to play and 12 read to you certain communications between Sheikh Abdel Rahman 13 and his attorneys. I have also decided that it is permissible 14 for the attorneys, including Ms. Stewart, to disclose 15 communications with their client. These are legal matters and 16 with all the evidence in this case I have decided that it is 17 proper for you to hear it. The weight of the evidence, if any, 18 is for you to decide. 19 MR. MORVILLO: Your Honor, the government actually 20 thinks that's a better instruction than the one that the 21 parties have proposed to the Court and we agree to that. 22 MR. TIGAR: Ms. Stewart consents to that instruction. 23 THE COURT: Anything else? 24 If not, Ms. Stewart is on the stand and if we can 25 bring in the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7712 4ARMSAT1 1 When do the parties wish me to give this instruction, 2 at the beginning of the morning? 3 MR. TIGAR: We would request at the beginning. 4 THE COURT: That's fine. Sure. 5 (Jury present) 6 THE COURT: Good morning, ladies and gentlemen. It is 7 good to see you all. 8 Ladies and gentlemen, at the outset let me give you an 9 instruction. There are various rules that apply with respect 10 to the disclosure of communications between an attorney and a 11 client. These are rules of law. I have decided in this case 12 that it is legally permissible for the government to play and 13 read to you certain communications between Sheikh Abdel Rahman 14 and his attorneys. I have also decided that it is permissible 15 for the attorneys, including Ms. Stewart, to disclose 16 communications with their client. These are legal matters. 17 And as with all the evidence in this case, I have decided that 18 it is proper for you to hear it. The weight of the evidence, 19 if any, is for you to decide. 20 With that, Ms. Stewart is on the stand. 21 Mr. Fletcher. 22 THE DEPUTY CLERK: Ms. Stewart, you are reminded that 23 you are still under oath. 24 THE WITNESS: Yes. 25 THE COURT: Mr. Tigar you may proceed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7713 4ARMSAT1 1 LYNNE STEWART, resumed. 2 DIRECT EXAMINATION (cont'd) 3 BY MR. TIGAR: 4 Q. Ms. Stewart, at the end of the day yesterday we were 5 talking about these discussions that the jurors have heard 6 about commissary. In order for a prisoner to get commissary, 7 how does a prisoner get the money? 8 A. Well, it has to come from outside the jail, deposited in 9 his account. It can also be from work inside the jail, but in 10 the Sheikh's case, of course, he was not permitted or probably 11 unable to work, and so all the money had to come from outside 12 sources. 13 Q. Now, yesterday also we were talking about the initiatives 14 and the publicity about the initiative. Did you follow those 15 events around that time, the Middle East events, closely? 16 A. I wouldn't say I was following them closely. I was aware 17 of them in some general way and I did speak with Ramsey Clark, 18 who was the person who was mainly dealing with those events and 19 the Sheikh. 20 Q. And let's talk a minute about this Luxor event that's been 21 in evidence here. Where did you learn about the Luxor 22 massacre? 23 A. I read about it in the newspapers. 24 Q. And did the lawyers discuss this with your client? 25 A. We did. I'm not remembering a conversation I had, but I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7714 4ARMSAT1 Stewart - direct 1 aware that the other lawyers definitely talked to him about 2 this. 3 Q. And what was your understanding of your client's view of 4 Luxor? 5 A. Initially, he took no position, but a number of months 6 later he decried the Luxor massacre and at the same time he 7 favored the peace initiative. I think that things were very 8 close in time. 9 Q. Did you have a personal view about the events of Luxor? 10 A. Yes. 11 Q. What was that? 12 A. My personal view is that it was absolutely deplorable, that 13 people, civilians, tourists are not combatants, are not to be 14 targets, and that this massacre, as it took place, was 15 indefensible. 16 Q. And in that time, 1997, looking at that time, was it your 17 personal view that violence could ever be used to accomplish a 18 political goal? 19 A. It was my personal view then. It is my personal view now 20 that in a righteous struggle -- that is, where people are 21 trying to overcome oppression, such as South Africa during the 22 '80s and '90s and Ireland during many centuries -- it is an 23 appropriate response when there is no other response, is to 24 fight back, to use -- act in self defense and to accomplish 25 political goals by those actions. I don't believe in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7715 4ARMSAT1 Stewart - direct 1 anarchistic violence, however. 2 Q. You said that your client supported -- you called it the 3 peace initiative. Why do you call it a peace initiative 4 instead of a cease fire? 5 A. This is the terminology that was generally used by everyone 6 surrounding this. By that, I mean, Muntasir al-Zayyat, the 7 people who were in the prisons in Egypt. They all called this 8 a peace initiative, not a "cease fire." I think that's because 9 it had a broader context for them than just a cease fire. It 10 was indeed a cease fire, but it was also a cessation of 11 criticism of the government of Egypt. It was a step back, a 12 neutral territory time, a point at which they would give the 13 government an opportunity to come forward and do the right 14 thing. 15 Q. Did you believe that when Mr. Clark, Ramsey Clark, 16 publicized your client's views about the peace initiative that 17 he was violating the SAMs or the affirmations that he had 18 signed? 19 A. Well, as we discussed, each of the lawyers had a 20 different -- slightly different view of the SAMs. We all felt 21 that the SAMs could not interfere with the attorney-client 22 representation with adequate and zealous representation. But 23 we each had a decision to make about what we would do in terms 24 of what the plain language of those prison regulations was. 25 Certainly, Ramsey Clark making the press release in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7716 4ARMSAT1 Stewart - direct 1 which the Sheikh endorsed the peace initiative was outside the 2 letter of the SAMs, but was operating as a lawyer within what 3 we thought was the legal constraint. 4 Q. Now, this question of interpretation, I am going to find 5 here and place up on the Elmo. 6 MR. TIGAR: May I show the witness, your Honor, 7 Government Exhibit 7 in evidence? 8 THE COURT: Yes. 9 Q. Now, this is this attorney's affirmation and I'll show the 10 top of it that we have often seen, Government 7. 11 Now I am going to scroll down using the Elmo to 12 paragraph 4. 13 What was your understanding as to who drafted this 14 language? 15 A. This was clearly drafted by Pat Fitzgerald in the Southern 16 District, our adversary, so as to speak, our continuing 17 adversary in this case. 18 Q. Now, if you had a disagreement with Mr. Fitzgerald as to 19 whether your interpretation of the SAMs language was accurate 20 or not -- you had a disagreement with interpretation, what did 21 you think would happen? 22 A. Well, it was clearly spelled out in the earliest versions 23 of the SAMs, and we felt that there was no change, and that was 24 that we could be cut off, I could be cut off from the client. 25 That was what it enunciated, that if there is a breach, you can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7717 4ARMSAT1 Stewart - direct 1 be denied the right to visit or communicate or, in fact, 2 represent the client. 3 Q. Now, this SAM affirmation was signed on May 16, 2000. 4 Looking at the top, did you see that as a promise? 5 A. I saw it as an oath, yes, a promise to abide by the plain 6 language of the SAMs, but with the understanding that it had by 7 that time, 2000, a bubble sort of built in under which we 8 operated, that Pat Fitzgerald was just too good a lawyer to not 9 understand that it could not superimpose itself upon the work a 10 lawyer needed to do, that this was to represent someone and to 11 do so zealously and to be concerned about the case as it then 12 was constituted, life plus 65 years, that the SAMs could not 13 interfere with that, that it was an operation and it seemed to 14 be borne out by the practice as well as the comments to the 15 SAMs when they first were promulgated, that it could not 16 interfere with that practice, with that carrying out of our 17 obligation -- I should say now my obligation to my client. 18 Q. Did you keep your promise? 19 A. I kept the promise. 20 Q. Now, I'd like now to display for the jury a telephone 21 conversation. 22 You visited your client on May 19 and -- let me not 23 lead here. 24 Did you have a prison visit with your client in May of 25 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7718 4ARMSAT1 Stewart - direct 1 A. Yes. We visited in Rochester on May 19 and 20 of 2000. 2 Q. Is that the visit, the tape recording of which the jurors 3 have seen? 4 A. That's right. 5 Q. How did you learn what subjects were going to be dealt with 6 in that May 2000 visit? 7 A. To the best of my recollection, it was -- I was on trial at 8 the early part of May and right up until the day before we 9 left, on trial -- 10 Q. When you say you were on trial, what do you mean? 11 A. It is the lawyer's nomenclature for conducting a trial, for 12 being the lawyer in a trial. I had been the lawyer in a -- it 13 was an A1, a state case, a drug felony that carried penalties 14 of 25 to life. And so I was in my usual mode, totally 15 committed to that case, working 16 or 18 hours a day to be 16 ready for the next day in court during from -- I think I 17 started some time around May 3, perhaps, and continued right up 18 until the time we visited, and then continued after we got 19 back. 20 Q. In order to prepare, first, when you went to the prison to 21 visit your client, could you spend unlimited time with the 22 client on any given day? 23 A. No. We were limited and we were also limited to the days 24 in which we could visit. It all had to be arranged in advance. 25 We were allowed into the prison, I believe, at 8:30 in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7719 4ARMSAT1 Stewart - direct 1 morning. We could stay until three. At three they were very 2 prompt about ushering us out. We had to usually get a special 3 permission for a weekend day to visit at all. So all of that 4 had to be arranged in advance with the prison authorities. 5 Q. And on that visit you were the lawyer. Who was the 6 translator that worked with you then? 7 A. That was Mohammed Yousry. 8 Q. Before the visit how did you find out then what the issues 9 were? How did you determine what the issues would be that 10 would be discussed? 11 A. I had not visited the Sheikh in almost a year at that 12 point, but, of course, Abdeen Jabara had been there in 13 February. The method was that Mr. Sattar would get the 14 tickets, he would either come to my office or come to my house 15 to deliver the tickets and deliver letters from family, from 16 supporters, from people in the congregations the Sheikh had 17 preached to, and he would turn those over. He would give them 18 to me the night before, two nights before, whatever it was. 19 I would usually then meet with Mr. Yousry at some 20 usually ungodly hour, like four or five in the morning to, 21 catch the plane to Minnesota. 22 Q. Let me stop you there. The materials. You say there were 23 letters and other materials. Did Mr. Sattar sometimes deliver 24 newspaper articles as well or media material? 25 A. There were sometimes newspaper articles from Mr. Sattar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7720 4ARMSAT1 Stewart - direct 1 Q. In what language were most of these things? 2 A. Arabic. 3 Q. Go ahead. You would then meet Mr. Yousry? 4 A. Yes. With my files at some ungodly hour and get on the 5 plane or wait for the plane, or whenever it called for in the 6 particular case. We would also -- we would work during this 7 entire trip going over all the materials. I would make 8 decisions about what should be read. We would try to figure 9 out how much time we had, how to best spend the time. He would 10 mark things approved LS or Lynne Stewart or whatever. And we 11 would prepare for the meeting in that way. 12 Q. Now, did Mr. Yousry also bring materials for you to review 13 and approve? 14 A. Yes. I don't remember anything other than a newspaper, but 15 it is possible there was something else. 16 Q. Now, when you say approve, what did that process involve as 17 you saw it? What were you doing? 18 A. It was my belief in representing Sheikh Omar that in order 19 to make proper decisions about his case and the direction it 20 should take, he needed to have knowledge. He had no way of 21 really getting any knowledge. It wasn't like we could 22 subscribe to the New York Times for him. He had no way of 23 getting knowledge except through us. So it was very important 24 that he was kept up to date; hence, all the newspapers. 25 It also was important for his frame of mind that he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7721 4ARMSAT1 Stewart - direct 1 have sort of peace of mind about his family, about people he 2 had known when he was in the world, or the letters that were 3 usually sent to him. All of these things played a role, as 4 well as my own expertise, the suggestion. I think it is on the 5 tapes fairly often about there was a projected visit from Louis 6 Farrakhan, head of the nation of the Islam. We would bring 7 that correspondence with us for him to hear about and know 8 about. All of this definitely, in my mind, anyway, was geared 9 to keep him abreast of matters and to inform him and his 10 decisions about the case. 11 Q. We are going to go over some of the specific parts of that 12 visit that the jury has seen, letters. Let me ask about that. 13 What criteria did you use in deciding whether a letter was 14 something that your client should be able to see under the 15 SAMs, as you were interpreting them in this bubble? 16 A. I had, I believe -- I did have the most expansive view of 17 the three lawyers as to what the Sheikh could see or couldn't 18 see or what could be approved or couldn't be approved. Because 19 I recognized that his interest was wide and that he would want 20 to know virtually everything he could. 21 With regard to the letters, they basically were 22 described to me in advance by both Mr. Sattar or by Mr. Yousry 23 in translation, as being from supporters, as being from people 24 who are active in Egypt by the family, by persons asking for 25 his interpretation of certain Islamic law. These were all -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7722 4ARMSAT1 Stewart - direct 1 this was the tenor of the letters. And that is what we brought 2 in and that is what was presented to him. 3 Q. Did you believe that the opinions or the activities of 4 people on the outside of the prison that were mentioned in 5 these recordings, people organizing things, committees and so 6 on, was relevant to trying to do something for your client? 7 A. Yes. It was my belief, my underlying belief in all of this 8 that at that point, with appeals exhausted, with no issue 9 legally on the horizon, that I needed to keep him in the public 10 eye, that the worst thing that could happen to him was to be 11 actually buried. I think at one point I say locked in a box in 12 Minnesota with no support whatsoever. Because when people are 13 not focused upon by the outside world, they are subjected to 14 whatever may happen to them within the prison by an unfriendly 15 government who has certain designs. So for him to be buried 16 was, in my view, the worst thing that could happen to him at 17 that point. 18 Q. Now, in your experience as a lawyer, as it stood in the 19 year 2000, had you participated in political activities or 20 legal political activities around the confinement of 21 high-profile prisoners? 22 MR. DEMBER: Objection, your Honor, relevance. 23 THE COURT: I'll allow the answer. 24 A. Yes, I had. 25 Q. Without going into detail, did your experience in those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7723 4ARMSAT1 Stewart - direct 1 matters help to form your judgment about what was appropriate 2 with respect to Sheikh Rahman? 3 A. Yes, it did. 4 Q. Now, we have talked about the decisions you would make, LS 5 approved, Lynne Stewart approved. Did you also deal with the 6 issue of what could be communicated from your client to people 7 on the outside? 8 A. Yes. 9 Q. And in that context did you also look to the SAMs and your 10 interpretation of them? 11 A. Yes. The decisions about letters that could be sent or 12 material that could be disseminated was usually made after the 13 visit if there was a controversy about it. We would hold off 14 on doing something until we had an opportunity to speak once 15 again with the client, usually over the phone. But that 16 decision was made also based on what we thought was within the 17 legal representation of the client, what we had to do to 18 continue to vigorously defend this man. 19 Q. Now, the tapes that we have seen, the conversations -- we 20 will go over these transcripts -- were almost entirely in 21 Arabic between the client and Mr. Yousry. Let's say a 22 majority. Whatever it is, it is. Why would most of the time 23 or so much of the time be spent in conversations in Arabic back 24 and forth? 25 A. The reason was because of the time constraints under which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7724 4ARMSAT1 Stewart - direct 1 we operated. This was not a case that was padded with a lot of 2 money. When we flew to Minnesota we flew in airplanes that 3 didn't seem to be made for adults, as a matter of fact, and we 4 had to take the earliest flights on the least convenient days 5 and sometimes stay over in Minnesota for an extra day in order 6 to get the cheaper fare. And our time constraints were such 7 that we usually had a great deal to accomplish while we were 8 there in the two days that we usually had to work in. 9 We had developed at the MCC a method whereby on the 10 outside we would go over all the material, myself with 11 Mr. Yousry. I would say to him, this is approved, do this, 12 read that, do the letters, get the answers to the letters and 13 you do that without having to translate back to me every word 14 that's said. Because it was many times just duplicative of 15 what I had read earlier and had translated to me by Yousry. 16 Yousry had to translate twice, unfortunately, but that we felt 17 was preferable to wasting time whereby he would read, I would 18 get the answer, I would question, he would read again, I would 19 get the answer. It just speeded up the process a great deal. 20 We also realized that it might look peculiar sometimes 21 that he was seeming to carry on long conversations with the 22 Sheikh without my intervening. 23 Q. Now, after the day's work was over at 3:00, or whenever the 24 recording showed that it is, what would you as the lawyer do 25 meeting with Mr. Yousry who had been working all day doing this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7725 4ARMSAT1 Stewart - direct 1 translating? How did that work? 2 A. Well, we would usually get together -- we would usually go 3 back to the motel and each take a nap because we got up at an 4 early hour. We would then meet shortly before going to dinner 5 and we would go over -- he would bring his notebook. He would 6 go over what had been done, how much he had accomplished, what 7 the Sheikh's responses had been. We would decide which stuff 8 we needed to revisit the following day, which stuff we needed 9 to make note of at that point, and plan for the meeting the 10 next day. It was discussed at that point sometimes there was 11 more information than we could discuss at a single meeting like 12 that. We might meet again later in the evening or breakfast or 13 whatever, but it was all rehashed before we went back in the 14 jail the next day. 15 MR. TIGAR: May I have just a moment, your Honor? 16 THE COURT: Yes. 17 MR. TIGAR: Your Honor, may Mr. Dan Habib, who is the 18 young lawyer, sit at counsel table? 19 THE COURT: Yes. 20 MR. TIGAR: May we take a moment to put the batteries 21 in the earphones? 22 THE COURT: Sure. 23 MR. TIGAR: While they are doing that, your Honor, at 24 this time we are going to offer LS705 and the transcript 25 thereof, 705T, and my recollection is that there is a limiting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7726 4ARMSAT1 Stewart - direct 1 instruction about this, your Honor, and a stipulation. If I 2 can have just a moment. 3 MR. DEMBER: Your Honor, may I consult with Mr. Tigar 4 for a moment? 5 THE COURT: Sure. 6 MR. TIGAR: Your Honor, I'm reminded -- I apologize -- 7 that the earphones are in the jury box. So as not to have some 8 member of any of the teams here be in the jury box, may we take 9 a brief recess to get ourselves in order? 10 THE COURT: Yes, absolutely. 11 MR. TIGAR: I apologize. 12 THE COURT: No problem. 13 Ladies and gentlemen, we will take a brief break at 14 this point. We have been going almost 45 minutes, so maybe we 15 will take whatever is a convenient break for you, seven minutes 16 or so. 17 Please remember my continuing instructions. Please 18 don't talk about this case at all. Please always remember to 19 keep an open mind. 20 All rise, please. Please follow Mr. Fletcher to the 21 jury room. 22 (Jury not present) 23 THE COURT: Ms. Stewart can step down. My 24 understanding was that there was some stipulation. 25 MR. TIGAR: Yes, your Honor, there is a stipulation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7727 4ARMSAT1 Stewart - direct 1 I got to this point in my notes, your Honor, and I had a 2 complete mental blackout. 3 THE COURT: It is all right. 4 In addition to the stipulation, there was also an 5 instruction which you suggested. And my understanding from 6 yesterday was the instruction was that the transcript is not 7 being offered for the truth of any of the matters asserted. 8 MR. TIGAR: That's correct, your Honor, we agree with 9 that. And the evidence is the tape, not the transcript, the 10 English conversation. 11 THE COURT: Which is another instruction? 12 MR. TIGAR: Yes. Thank you, your Honor. 13 (Recess) 14 MR. TIGAR: Your Honor, we have confronted and solved 15 the technical problem. If Mr. Habib can sit with the 16 government paralegals, we are going to use their system 17 because -- for a number of reasons having to do with our desire 18 to use the lecturn to play it and so on. 19 THE COURT: That is fine. You had mentioned that this 20 is a transcript and the tape is in English? 21 MR. TIGAR: Yes, your Honor. 22 THE COURT: Completely in English, no Arabic? 23 MR. TIGAR: That's right, your Honor. It is a 24 conversation between Mr. Yousry and Ms. Stewart on May the 25 17th, 2000. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7728 4ARMSAT1 Stewart - direct 1 THE COURT: So the transcript is an aid to the jury. 2 MR. TIGAR: And I will be asking permission to display 3 the transcript on the Elmo while the audio is playing, and I 4 will first, before we do that, I will ask -- offer and ask to 5 read two stipulations that carry this and some other things we 6 are going to be playing through the copying and other process 7 into evidence. 8 THE COURT: Okay. Let's bring in the jury. 9 MR. TIGAR: Ms. Stewart. 10 THE COURT: Yes, Ms. Stewart should take the stand, 11 please. 12 MR. TIGAR: We will be asking your Honor to ask the 13 jurors to put the earphones on, red button out and so on. 14 Thank you. 15 THE COURT: Is the stipulation marked? 16 MR. TIGAR: Yes, your Honor. The stipulation -- there 17 are two. One is 803-S, LS-803S and LS-804S. Those may not be 18 on the list because, your Honor, there was a process involved 19 in achieving it. They were delivered to your Honor this 20 morning. 21 THE COURT: Right. 22 (Jury present) 23 THE COURT: Ms. Stewart is on the stand. 24 Mr. Fletcher. 25 THE DEPUTY CLERK: Ms. Stewart, you are reminded SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7729 4ARMSAT1 Stewart - direct 1 you're still under oath. 2 THE WITNESS: Yes. 3 THE COURT: Mr. Tigar. 4 MR. TIGAR: Your Honor, at this time I would like to 5 offer and read, once they are in evidence, two stipulations, 6 LS-803S and LS-804S. 7 THE COURT: All right. LS-803S and LS-804S received 8 in evidence. 9 (Defendant's Exhibits LS-803S and LS-804S received in 10 evidence) 11 MR. TIGAR: May I publish LS-803S and place it on the 12 Elmo, your Honor? 13 THE COURT: Yes. 14 MR. TIGAR: Stipulation, title of the case. 15 Regarding the three DVDs that are shown in Defendant's 16 Exhibits LS-801C1, LS-801C2 and LS-801C3 and that have their 17 contents listed in Defendant's Exhibits LS-801LD1, LS-801LD2 18 and LS-801LD3 and regarding the CD that has its contents listed 19 in Defendant's Exhibit LS-802LD, the parties hereby stipulate 20 and agree that these disks were provided to defendant Lynne 21 Stewart by the government and that they contain .VOC audio 22 files that were recorded by the FBI using the Ratheyon system 23 and audio files that were recorded by the FBI using the 24 Lockheed Martin system and then converted to .VOC files. 25 It is signed by the attorneys and the parties, dated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7730 4ARMSAT1 Stewart - direct 1 October 26, 2004. 2 May I publish on the Elmo and read to the jury 3 Defendant's Exhibit LS-804S in evidence? 4 THE COURT: Yes. 5 MR. TIGAR: It is a stipulation. The parties hereby 6 stipulate and agree that, if called as a witness at trial, 7 Kathleen E. Cassidy, a law student clerk for the Lynne Stewart 8 defense team, would testify as follows: 9 1. She created LS-801, LS-801L, LS-802, and LS-802L. 10 2. She started with three DVDs that are identified as 11 LS-801C1, LS-801C2, and LS-801C3. 12 3. From the DVD shown in LS-801C1, she copied what 13 has been labeled LS-705 (20000517_211622_17184298539.VOC) to a 14 file folder labeled LS-801 on the desktop of a properly working 15 computer. 16 4. From the DVD shown in LS-801C2 she copied what has 17 been labeled LS-701 (20000616_085701_7184298539.VOC) and LS-702 18 (20000616_144033_7184298539.VOC) to a file folder labeled 19 LS-801 on the desktop of a properly working computer. 20 5. From the DVD shown in LS-801C3, she copied what 21 has been labeled LS-703 (20010907_152913_7184298539.VOC) and 22 LS-704 (20011011_180200_7184298539.VOC) to a file folder 23 labeled LS-801 on the desktop of a properly working computer. 24 Page 2. 25 6. She copied the contents of LS-801 from the desktop SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7731 4ARMSAT1 Stewart - direct 1 of the computer, which were LS-701, LS-702, LS-703, LS-704, and 2 LS-705, to a CD that she marked and initialed as LS-801. 3 7. She created a screenshot of the CD marked LS-801 4 and marked it at LS-801L. 5 8. From the CD that has its contents listed in 6 LS-802LD, she copied what has been labeled LS-706 7 (20000627_065820_15072821211.VOC) to a file folder labeled 8 LS-802 on the desktop of a properly working computer. 9 9. She copied the contents of LS-802 from the desktop 10 of the computer, which was the file LS-706, to a CD that she 11 marked and initialed as LS-802. 12 10. She created a screenshot of the CD marked LS-802 13 and marked it LS-802L. 14 Agreed to and stipulated, and those are all the 15 parties and lawyers. 16 At this time, your Honor, we offer that portion of the 17 CD that is LS-801 that corresponds to the transcript of this 18 English language phone call labeled LS-705T, and we offer 19 LS-705T, but only as an aid to the jurors, because this is an 20 English language call. 21 THE COURT: All right. With those limitations, LS-801 22 is received in evidence and LS-705T is received as an aid for 23 the jury. 24 (Defendant's Exhibits LS-801 and LS-705T received in 25 evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7732 4ARMSAT1 Stewart - direct 1 THE COURT: Couple of instructions, ladies and 2 gentlemen. 3 First of all, LS-705T, as you heard, is a transcript 4 and I've previously instructed you at length about transcripts 5 and the differences between transcripts where the underlying 6 recording is in Arabic and the transcript is received in 7 evidence because it reflects the testimony of the translators 8 as to what is contained in the underlying Arabic recording. 9 The English, when recordings are in English, the 10 transcripts are received as an aid to your listening to the 11 recordings, and you should listen very carefully to the 12 recording and use the transcript as an aid to your listening to 13 the recording. If you think you hear something different on 14 the recording than what is in the transcript, of course, it is 15 your understanding of what appears in the recording that 16 governs. And I have given you a lengthy instruction on all of 17 this and you are to apply this instruction here and I will 18 repeat that again in my final instructions. So 705T is an aid 19 in your listening to the recording. 20 Furthermore, the underlying recording and, obviously, 21 the exhibit, which is an aid to your listening to the 22 recording, is received not for the truth of any of the matters 23 asserted in the exhibit. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7733 4aresat2 Stewart - direct 1 MR. TIGAR: And, your Honor, may the jurors be asked 2 to put on the -- 3 Q. Before we do that, Ms. Stewart, do you -- did you have a 4 conversation with Mr. Yousry on the 17th of May, 2000, about 5 your impending visit to your client? 6 A. I did. 7 MR. TIGAR: Your Honor, may the jurors be asked to put 8 the earphones on, and may I display the transcript on the Elmo 9 as we go through this. 10 THE COURT: Yes. Ladies and gentlemen, if you put 11 your earphones on, remember the dot facing out and turn them 12 on. 13 (Exhibit LS801 was played for the jury) 14 MR. TIGAR: Your Honor, we have a problem with a 15 headset. 16 THE COURT: OK. There are two earphones that have to 17 be replaced, Ms. Stewart and Juror No. 4. 18 MR. TIGAR: May Mr. Habib hand them, your Honor. 19 THE COURT: Yes. Did I see any other hands in the 20 jury? No. OK. 21 MR. TIGAR: OK. 22 THE COURT: And you can -- if you want, you can start 23 from the top. 24 MR. TIGAR: All right. Whatever the technology 25 permits, your Honor, I think that's what they do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7734 4aresat2 Stewart - direct 1 (Exhibit LS801 was played for the jury) 2 BY MR. TIGAR: 3 Q. Now, Ms. Stewart, there's a reference in that call to SAMs. 4 MR. TIGAR: And may I place back on the Elmo 5 Government Exhibit 7 in evidence, your Honor. 6 THE COURT: Yes. 7 Q. Is that the document that I'm showing again now to which 8 you were referring? 9 A. That is the document. 10 Q. And your signature, May the 16th, did you sign that and 11 take it to the prison? 12 A. I signed it. I either took that or I took a copy to the 13 prison. I think I left the original to be mailed to Pat 14 Fitzgerald. 15 Q. Now, in that visit that the jury has seen, there is 16 discussion of the peace initiative. Had Mr. Yousry and you in 17 previous visits with the Sheikh, with your client, discussed 18 the peace initiative? 19 A. I believe we had. As I said, I had not visited him in over 20 a year at this point, but I recall talking about the peace 21 initiative with him. And I knew that the other lawyers, Ramsey 22 Clark and Abdeen Jabara -- 23 MR. DEMBER: Objection, your Honor. Hearsay. 24 THE COURT: Sustained. 25 Q. As you were preparing for your visit, did you consider the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7735 4aresat2 Stewart - direct 1 views that others had expressed to you about the Sheikh's views 2 as bearing on your state of mind and the advice you were going 3 to give? 4 A. Yes. 5 Q. And did that include what Mr. Clark had told you about his 6 conversations with the client? 7 A. It did include that, yes. 8 Q. Can you tell us, just for its effect on you, what Mr. Clark 9 had told you? 10 A. I -- 11 MR. DEMBER: Objection. I just ask for an 12 instruction, your Honor. It's hearsay. 13 THE COURT: All right. Ladies and gentlemen, I 14 previously instructed you about hearsay. And the statements -- 15 any statements by Mr. Clark to the witness are out-of-court 16 statements by Mr. Clark. They're not being offered for the 17 truth of anything that Mr. Clark -- that the witness testifies 18 Mr. Clark said, but rather for the effect on the witness' state 19 of mind. 20 All right. 21 Q. With that understanding, go ahead. 22 A. I understood that the peace initiatives had been in effect 23 for over -- almost three years at that point. The Sheikh was 24 questioning whether there was a dividend that had been gotten. 25 He knew that 1,000 people had been released from the prisons of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7736 4aresat2 Stewart - direct 1 Egypt and that there were other negotiations in the work. But 2 I think he was wondering why nothing was happening with his 3 particular case, which he assumed would be part of that 4 initiative as well. And so he was questioning whether or not 5 things were really moving forward. That was what was in my 6 mind when I went to the prison in May of 2000. 7 Q. Let me ask you about working on a case like this. When you 8 work on a case such as that of your client Sheikh Abdel Rahman, 9 do you rely on what other people tell you about events so that 10 you can make your decisions about what you should do? 11 A. Tremendous amount of reliance and trustworthiness, all of 12 those things, in having a team effort in representing a client. 13 Q. And did you -- in evaluating what you were going to do, did 14 you rely on what Mr. Clark told you? 15 A. I did. 16 Q. Did you regard him as a truthful person with respect to his 17 relating to you of events and activities that related to your 18 client? 19 A. I did, absolutely. 20 Q. And did you -- and how about Mr. Jabara? 21 A. The same. 22 Q. Now, one of the issues that was on that -- the tape, a 23 portion of which we'll be looking at the transcript of, was a 24 place called al-Azhar university. And do you recall seeing the 25 transcript of a discussion about al-Azhar? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7737 4aresat2 Stewart - direct 1 A. Yes. 2 Q. And were you aware before you went to -- before you 3 actually got in to see your client, of -- that there were 4 articles or there was information about al-Azhar? 5 A. Yes, I was aware. As I said, Mr. Yousry and I go over all 6 the material that's being submitted for the Sheikh's 7 consideration before we get to the prison. 8 Q. And did you approve the conveying to your client of 9 information about what was happening around the al-Azhar 10 university? 11 A. I did. 12 Q. Now, in terms of your client, did al-Azhar University mean 13 something to him? 14 A. Well, he had -- 15 MR. DEMBER: Objection, your Honor. Hearsay. 16 THE COURT: Rephrase. I don't see the question as 17 asking for hearsay. Rephrase the question. 18 Q. Had you in the process of representing your client 19 discussed with him his experiences with al-Azhar university? 20 A. I had. 21 Q. Did you in the opening statement that you read out to the 22 jury yesterday mention al-Azhar university? 23 A. I certainly did. 24 Q. And what was your understanding based on what you had 25 learned from your client and in preparing to give that opening SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7738 4aresat2 Stewart - direct 1 about the significance of al-Azhar university? 2 A. It was the Sheikh's, as we would say here, his Alma mater. 3 That's where he had graduated from and done his graduate work 4 and received his PhD. He later taught there for a number of 5 years before going off to Saudi Arabia to teach. The student 6 body there was always very active politically, and so he was 7 always interested and concerned about events at al-Azhar. 8 Q. In addition to the al-Azhar, there is some mention on these 9 transcripts that we'll be looking at of someone named Abu 10 Yasir. Did you know who Abu Yasir was? 11 A. I did not at that time. I certainly do now. 12 Q. And I'm going to -- 13 MR. TIGAR: May I show the witness, please, show 14 Ms. Stewart, please, Government Exhibit 2671. 15 THE COURT: Yes. 16 MR. TIGAR: In evidence. 17 THE COURT: Yes. 18 BY MR. TIGAR: 19 Q. Now, this is an article that was in a file in your office 20 that -- in -- let me put down the zoom here. 21 Can you tell us what that is and how that came to be 22 in your files. 23 A. As best I can recall, and also having my memory refreshed 24 by the date on it, which is 10/26/98, I believe this was a 25 translation of a newspaper article done by Nasser Ahmed in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7739 4aresat2 Stewart - direct 1 connection with his case and given to me by him. 2 I think he, on a visit with him, told me that he 3 thought the government might be interested in using some of 4 this latest news. And he was giving it to me for that purpose. 5 We were consistently trying to guess what the government was 6 doing in that case, since it was a secret evidence case. My 7 recollection is I put it in the file. I never looked back. I 8 never used it. It stayed in the file until the government 9 agents seized it. 10 Q. Did this exhibit have anything to do with your visit in 11 2000? 12 A. Nothing whatsoever. 13 MR. TIGAR: Your Honor, may I display on the Elmo 14 Government Exhibit 1706X. 15 THE COURT: Yes. 16 Q. Ms. Stewart, I'm going to show you now, rather than replay 17 the video, I'm going to place on the Elmo screen here portions 18 of what we've all seen before, and that is the transcript of 19 the May 19th visit to Minnesota. And as was explained before, 20 the English language portions, which were received as an aid, 21 are underlined, and the nonunderlined ones are in Arabic. 22 So let me start and ask you about page 6. This shows 23 that your client is coming in to the room and you say, Sheikh 24 Omar, my very most favorite person. Why did you say that? 25 A. It's a salutation. It's a client that I hadn't seen in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7740 4aresat2 Stewart - direct 1 very long time, over a year. I had had very few telephone 2 conversations with him because my schedule did not allow me to 3 be in my office at those early hours -- early morning hours to 4 receive the calls. So I wanted to greet him as warmly and I 5 guess effusively, I'd have to say, as I possibly could. 6 Q. I want to place up -- 7 MR. TIGAR: Your Honor, I'm going to be using pages 8 from this document. Should I ask permission to display each 9 one or -- 10 THE COURT: No. You can display pages from the 11 document. 12 MR. TIGAR: Thank you, your Honor. 13 Q. Now, this is from page 10. Do you see, Lynne Stewart says, 14 do they usually sit like this and watch us? 15 Do you remember what prompted you to say that? 16 A. The window in this particular room -- which was not the 17 usual visiting room, it was a separate -- in a separate 18 building in a basement -- was -- the table was positioned very 19 close to what were large picture windows. I would say it was 20 no more than a foot away from the windows. And the guards were 21 directly outside. 22 And usually the guards are with their backs to you, 23 but apparently -- I mean, as I recall it today, they had turned 24 around and they were actually watching us from a distance of 25 not more than a foot through this huge plate glass window. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7741 4aresat2 Stewart - direct 1 Q. And then your comment, they have to read lips, I guess, are 2 looking? 3 A. Well, we had the door closed. We were doing our utmost to 4 make sure this was a confidential conversation that was taking 5 place. 6 Q. Now, when you visit clients in prison, do you, based on 7 your experience, have -- are there things that you do to try to 8 maintain confidentiality? 9 A. Yes. And I may be a little more sensitive to it than other 10 defense lawyers, perhaps because my experiences certainly in 11 some of the political cases I've handled, and -- 12 MR. DEMBER: Objection, your Honor. Relevance. 13 THE COURT: Overruled. Overruled at that point, but 14 go ahead. Do you want to rephrase the question? 15 MR. TIGAR: Yes. 16 Q. Without reference to the kinds of cases or 17 characterization, what has been your practice, your experience 18 about that? That's what I think the issue is. 19 A. I have in certain cases inspected the bottom of tables to 20 make sure there was nothing concealed there that would overhear 21 us. I have regularly checked even counsel table sometimes to 22 make sure that every microphone at the counsel table is 23 appropriately attached and is not attached to some government 24 ear somewhere else in the courthouse. I have known to look for 25 electronic devices attached to cars that I am driving in away SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7742 4aresat2 Stewart - direct 1 from a case. 2 This I don't think is paranoia, but it might be a 3 heightened sense that the government is always interested in 4 what the lawyers and the defendants are about and what they are 5 talking about in particular. And the privilege, although it 6 protects us -- 7 MR. DEMBER: Objection, your Honor, to the last 8 portion, please. What the government is interested in, your 9 Honor. 10 THE COURT: Sustained. 11 MR. DEMBER: Ask it be stricken with an instruction, 12 please. 13 THE COURT: All right. Stricken. 14 Go ahead. 15 MR. TIGAR: Thank you, your Honor. I just -- I had 16 not heard the objection. I was looking at the transcript. 17 BY MR. TIGAR: 18 Q. Do you think it's legitimate for a lawyer interviewing a 19 client in a prison setting to try and prevent -- to do things 20 to prevent the guards from hearing or knowing what's going on? 21 A. I do absolutely. 22 Q. Why? 23 A. The client has got to be able to tell the lawyer completely 24 what is on the client's mind. The government has no right to 25 hear these confidential conversations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7743 4aresat2 Stewart - direct 1 MR. DEMBER: Objection, your Honor. 2 THE COURT: Rephrase. 3 Q. Did you think it was important in May of 2000 that the 4 guards not interrupt your communication with your client? 5 A. I did, yes. 6 Q. And what did you -- as you were making decisions about what 7 to do, what were you concerned might occur? 8 A. The -- there could, at the point in the conversation where 9 we were doing mainly the Arabic-to-Arabic speaking where 10 Mr. Yousry would be speaking directly with the Sheikh, it could 11 potentially be seen as not an attorney communicating with the 12 client. It could be seen as an interpreter communicating with 13 the client. The guards, of course, would not know that we had 14 gone over all this material, and we merely adopted this 15 methodology of working because it shortened the time and gave 16 us, quite literally, hours more time to speak with the client. 17 And so if they mistook what we were doing and entered 18 the room and said, hold up there -- and it actually had 19 happened with Mr. Yousry and I once at the MCC, when we were 20 meeting with the Sheikh, that a guard came in and said, no, 21 he's only talking to him. We called the lieutenant to the room 22 at that point and the lieutenant permitted us to continue once 23 I explained to him what was happening. But you do not want an 24 interruption of the attorney-client conference, because it's so 25 time consuming and because it's a problem. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7744 4aresat2 Stewart - direct 1 Q. Now, turning now -- this is from page 14. You're saying, 2 yes, and I'm hoping, you know, I have a number of trials in 3 August when I'm on vacation, be able to set this up. 4 What are you talking about there? 5 A. Well, we had long promised and continued to long promise 6 that a condition suit, that is, a lawsuit in which we entered a 7 complaint as to the Sheikh's conditions of confinement, would 8 be instituted, would be brought. And I'm talking about that, 9 I'll try to get to it in August when I'm no longer doing trial 10 work. 11 Q. That would be August of 2000? 12 A. That was August of 2000, yes. 13 Q. Now, this is from the previous page, page 13. You say 14 you're talking to some of the other lawyers and that -- you can 15 see these two paragraphs, the jurors can as well. 16 You say that, I do think we have the best case to go 17 forward. And then you say, I don't necessarily think it's 18 political to do the case with them. Let's do it as a class 19 action. I don't think is a smart thing, actually. 20 And you mention this name, Ramzi Yousef. What was 21 your thinking about the tactics that would be used in a 22 lawsuit? You mentioned class action, you mentioned somebody 23 else. What was going on there? 24 A. There were a number of prisoners in the federal system that 25 were held pursuant to SAMs, that is, Special Administrative SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7745 4aresat2 Stewart - direct 1 Measures. It was conceivable that we could put all those cases 2 together and all the lawyers could go to court and argue the 3 case as a -- one case, to get some relief for their clients. 4 I was telling the Sheikh that I didn't think that was 5 a good idea for him because his case was so unique. It was 6 coupled with the fact -- well, it was coupled by the fact that 7 he was handicapped in a very serious way. His isolation was 8 very different from a sighted person who could speak English, 9 and that I felt his case was a stronger case than most of the 10 others. 11 And so I thought it shouldn't be diluted by -- 12 diluted, that is, not deluded, but diluted by coupling it with 13 any of the other cases in which SAMs had been imposed. Ramzi 14 Yousef was a person who was convicted in this court of 15 terrorist acts and also had had SAMs placed upon him, and his 16 lawyers, who I knew from practice, were -- had made some 17 attempts to have those SAMs lifted. 18 Q. Well, as you were meeting with your client on the 19th of 19 May, I'd like to start just asking, what about -- what was it 20 about his conditions of confinement that concerned you as his 21 lawyer, and that you were hearing from him concerned him? 22 A. I believe the first thing would, of course, be the medical 23 treatment. And while it was not inadequate, I had no assurance 24 that it was adequate. I knew, and he told us, that -- or he 25 had told us in the past that, you know, the doctors basically SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7746 4aresat2 Stewart - direct 1 did not speak Arabic. And so in describing what was wrong with 2 him, it was very difficult for him to get them to understand 3 exactly what the complaint was. 4 I also, I think later on, I think I'd say at some 5 point that he had an issue with, of course, the lack of -- 6 level of understanding of his culture, his religion and what 7 that meant in terms of the regular prison routines. The fact 8 of strip-searches, which are ordinary for prisoners in federal 9 prisons, were of great concern to him religiously because of 10 the need to expose himself to strangers. The terrible 11 isolation in which he was held, as I just mentioned. 12 He was a blind person, did not speak any or very 13 little English; held in Rochester, Minnesota, without a radio 14 with a station he could listen to. He did have audio tapes 15 when the prison allowed them to come in, and most of the time 16 they didn't allow them to come in. 17 And he is regularly described as chanting to himself. 18 The chanting is actually the recitation of the Koran. But he 19 had -- there was no book he could pick up to read. There was 20 no television set to turn on. There was no telephone to pick 21 up to make a phone call to someone. He was alone. And as 22 described by the prison personnel that testified here, he was 23 alone to the extent that even the nearby guards were on the 24 other side of what they called a Sallyport. They were not 25 close to him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7747 4aresat2 Stewart - direct 1 The windows had been sealed shut in his prison. He 2 could not hear the birds. He could not hear anything from the 3 outside. This is a person who is very dependent upon sound 4 because of not having sight. So the conditions of his 5 isolation, which we thought were leading to almost 6 hallucinations; to the smell, the pervasive complaints about 7 the smell. And the smell, was it pumped in by the prison, 8 started in Springfield at the point at which he's isolated and 9 then continue when he's shipped to Minneapolis -- Minnesota. 10 So all of these were concerns. The fact that he 11 was -- he had attempted to attend religious services, that we 12 had finally gotten a concession that he could attend religious 13 services. And then we found out, and he confirmed for me, that 14 they had actually built a little cage for him to sit in. 15 MR. DEMBER: Objection, your Honor. Hearsay. 16 MR. TIGAR: We acknowledge it's hearsay, your Honor. 17 MR. DEMBER: We request an instruction. 18 MR. TIGAR: We join the government. We understand an 19 instruction is necessary, perhaps as to all of this. 20 THE COURT: All right. Ladies and gentlemen, any 21 statements by Sheikh Rahman are not being offered or received 22 for the truth of any of the matters which are attributed to 23 Sheikh Rahman. They're being offered not for the truth of any 24 of those matters asserted, but for the effect on the witness' 25 state of mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7748 4aresat2 Stewart - direct 1 BY MR. TIGAR: 2 Q. Ms. Stewart, when you're representing somebody, do you have 3 to get their side of the story? 4 A. You do. It's the whole -- that's the job, in essence, is 5 to listen to their side of the story and to evaluate it and to 6 decide what must be done. 7 Q. Is there anything in your being a lawyer that requires you 8 to believe everything your clients tell you? 9 A. No. 10 Q. Is there something that, some rule about being a lawyer 11 that says that you shouldn't do that? 12 A. Actually, there's a great stricture about getting too close 13 to the client, not having proper distance to be objective about 14 what is being told to you. And, of course, being able to give 15 the best representation is to be able to tell the client, have 16 the client trust you enough to take it in about the facts of 17 the case or of his current disclosure to you. 18 Q. A moment ago you mentioned hallucinations. Did you 19 conclude that your client was having some mental problems where 20 he would imagine things that weren't so? 21 A. After hearing once again the tape from July of 2001 in 22 which he details in at great length what he experienced, I 23 thought about that at the time -- 24 MR. DEMBER: Objection, your Honor. I'd ask that that 25 be stricken, her -- witness' state of mind -- I object. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7749 4aresat2 Stewart - direct 1 Current state of mind is irrelevant. 2 THE COURT: I'm sorry? 3 MR. DEMBER: Her current state of mind is irrelevant, 4 just the basis of the last answer. 5 THE COURT: Rephrase the question. She was beginning 6 to say what her state of mind was at the time. 7 MR. DEMBER: Excuse me, your Honor. Then I ask that 8 the previous question be stricken, with the answer stricken as 9 well. 10 THE COURT: All right. Last question and answer is 11 stricken. 12 Rephrase. 13 MR. TIGAR: Thank you, your Honor. I couldn't hear 14 the objection. 15 THE COURT: The objection was the witness was 16 testifying now about current state of mind rather than state of 17 mind at the time. 18 MR. TIGAR: Oh. Thank you. Thank you, your Honor. 19 I've got it here now. 20 BY MR. TIGAR: 21 Q. Ms. Stewart, you were mentioning that July 2001 visit, and 22 what you heard then, which was then played for this jury now. 23 At that time did you conclude that your client was having some 24 mental problems that interfered with his perception of reality? 25 A. I remember thinking that he had had some kind of a mental SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7750 4aresat2 Stewart - direct 1 breakdown; that he was able to get back on top of it through 2 his own efforts, mainly; and that I had hoped for the future, 3 but I think that as a result of this isolation he had suffered 4 a definite mental breakdown. 5 Q. Now I'd like to return to this May visit. And this is page 6 20 of that transcript. Folks will remember it. Mr. Yousry 7 says, apparently in Arabic, the visit, sir. And then may I 8 tell him about the Louis Farrakhan thing. And you are recorded 9 as saying, oh, please. 10 Now, why did you think that it was relevant or 11 important or proper to disclose to your client this issue? And 12 I'm going to put the rest of the page here for some context, 13 because there's going to be talking about this Kaukab fellow. 14 In the first place, what did you think in terms of 15 representing your client would be served by telling him that 16 Louis Farrakhan wanted to visit? 17 A. We were -- as we said, one prong of my representation, our 18 representation was that the Sheikh should not disappear; that 19 he should still be a public figure as he always had been. We 20 had hoped that perhaps the visit being requested by another 21 very public figure, and if it were denied, we could utilize 22 this in perhaps showing that, the unreasonableness of these 23 regulations, which did not allow such a visit; and that the 24 publicity that it would engender would remind people, or at 25 least bring to light the conditions under which he was being -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7751 4aresat2 Stewart - direct 1 that is, Sheikh Omar -- was being held. So -- and I knew that 2 it was at least some small progress that we made in -- were 3 making in trying to challenge these conditions of confinement. 4 Q. Now, further on down, Mr. Yousry is talking about someone 5 named Kaukab. Who's that? 6 A. Kaukab Siddique is a Pakistani who has been active all 7 during the Sheikh's trial in support of him and who ran a small 8 newspaper, actually printed in English, dealing with Muslim 9 events, and has a column in that newspaper. I think it's now 10 on the Internet. I don't think it's any longer a newspaper. 11 Q. Now I'd like to turn to a discussion that occurred on that 12 call or in that -- excuse me, in that visit. That is the -- 13 MR. TIGAR: May I have just a moment, your Honor. 14 THE COURT: Yes. 15 MR. TIGAR: Your Honor, may I display on the Elmo a 16 page from the transcript that shows the government and defense 17 versions. It does have some orange highlighting on our copy, 18 but it's not -- may I show it to Mr. Dember. 19 THE COURT: Yes. 20 MR. TIGAR: Thank you, your Honor. Mr. Dember 21 consents, so I'd like to do it. 22 THE COURT: All right. 23 BY MR. TIGAR: 24 Q. Now, this is about the Abu Sayyaf hostage taking. That's 25 page 27 on your transcript, Ms. Stewart. 27, 28. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7752 4aresat2 Stewart - direct 1 First, did you know before the visit that Mr. Yousry 2 was going to read an article about the Abu Sayyaf hostage 3 taking? 4 A. I did. 5 Q. Did you approve of taking hostages? 6 A. No, absolutely not. Civilian, tourist once again? 7 Absolutely not. 8 Q. Now, what was your -- and you see the defense version 9 there. Have you listened to the tape? 10 A. I have. 11 Q. And is it your testimony that you say, that's so sad? 12 A. It is my testimony that that's what I heard on this tape, 13 listening to my own voice. 14 Q. And was that what you thought? 15 A. That's what I thought. 16 Q. Thinking back to that time, how did you think this Abu 17 Sayyaf taking hostages and putting your client's name out there 18 was going to affect the problems you were dealing with? 19 A. I -- my reaction was a mixed reaction. I definitely 20 disagreed with the taking of hostages, and that was so sad in 21 my mind, especially since the demand was for money from this 22 group, which seemed even more reprehensible. 23 But I also -- the fact that his name was put out there 24 is part of our effort to keep his name alive in the Muslim 25 world. And so for that reason -- we don't control this stuff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7753 4aresat2 Stewart - direct 1 We don't get a phone call saying, can we use his name. And so 2 for that reason it was not -- it was a mixed reception on my 3 part for that reason. 4 Q. The next thing that happens is this discussion about 5 Al-Hayat newspaper. And I'd like now to show page -- this is 6 from page 28 of the transcript, all right. It's talking about 7 members of Gama'a al-Islamiyya, the Egyptian government 8 sentencing them to prison. 9 And do you see Mr. Yousry says, so Ahmed thought it 10 was important and Abdeen gave me approval to read it. Who did 11 you understand Abdeen to be when Mr. Yousry told you that? 12 A. Apparently this article had some age to it. It wasn't a 13 current article because it was an article that apparently 14 Abdeen approved ahead of time. 15 Q. And he having approved it, was it all right with you that 16 it be read? 17 A. Yes. Mr. Yousry also cleared it with me. 18 Q. I beg your pardon? 19 A. Mr. Yousry also had cleared it with me. 20 Q. Later on in this call there's a discussion of the -- what 21 the future holds. And if you could turn, I think it's page 30 22 and 31, I'd like to ask you about some things that you said in 23 that conversation. And if at any time you disagree with what 24 this transcript is, the English part, please tell us. 25 But Yousry says in English to you, what do you think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7754 4aresat2 Stewart - direct 1 the future holds for us? And -- do you see that? And then I'm 2 going to take time so that we can catch up there. 3 The future holds a long and protracted struggle, 4 distances between people. And then I want to move down. 5 And you say, I look for a solution in his case like 6 what happened in Ireland within the last two years and, eh, and 7 then there's a translation. 8 And there continues more English, and all the IRA 9 soldiers were freed in both England, in Northern Ireland, and 10 they are people that I knew from the MCC, actually. 11 Now, as you looked at the prospects for your client, 12 what parallels were you thinking about between what experiences 13 in Ireland and experiences for somebody who -- sitting their 14 life in prison for terrorist offense in our country? 15 A. Well, the parallels that I saw were that his group had, 16 indeed, like the IRA, engaged in acts of armed resistance that 17 many, many thousands had been arrested for that in Egypt and 18 incarcerated, and executed even, as was very much the case in 19 Ireland; that there came a time when there was a ceasefire, a 20 truce, a peace initiative declared, both in Ireland and in 21 Egypt. And time was evolving and people were being released 22 from the Egyptian jails, just as in Ireland the jails and -- 23 were emptying out, the persons that had been tried in the cases 24 involving armed resistance there. And that I thought that 25 there was a parallel there and that he should appreciate this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7755 4aresat2 Stewart - direct 1 parallel because perhaps this is what the future may hold; that 2 as time progresses, he could look forward to a point at which 3 he would be either repatriated or freed completely. 4 Q. Later on in the call or in the -- excuse me, in the visit, 5 there is a discussion of something that had arrived from the 6 lawyer, and this is at page 36 of the transcript, when you and 7 Mr. Yousry are talking about some communication from the 8 lawyer. Now, what lawyer did you understand that was? 9 A. My understanding was that it was from Montasser Al-Zayyat, 10 who indeed had represented the Sheikh and represented other 11 persons accused of being part of the -- I guess we'll call it 12 the IG, Gama'a Islamiyya, in Egypt, and who was still 13 representing them, who had been instrumental in the peace 14 initiative, who regularly met with Ramsey Clark and -- when he 15 was in Egypt, and indeed was the spokesperson basically for the 16 press and to the public for the IG. 17 Q. Now, by the way, we're going through these transcripts and 18 so on. To get ready to come and testify here, did you spend 19 some time with your lawyers going over what questions might be 20 asked and what exhibits we might be showing you? 21 A. Probably from the first day we met in connection with this 22 case. But, yes, more recently we have spent quite a bit of 23 time together. 24 Q. And have you been actively involved in going over the 25 discovery that's been produced by the government and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7756 4aresat2 Stewart - direct 1 materials that have been produced in connection with the case? 2 A. Yes. It's hard to switch hats sometimes from lawyer to 3 defendant. I still consider myself the lawyer, and so I did 4 look at all the materials in the case, at least as much as I 5 could look at the materials in the case. 6 Q. Continuing on with this visit, Mr. Yousry at page 39 of our 7 version of the transcript here, is saying in Arabic, something 8 about a watch and a battery and so on. Now, what is all this 9 discussion of watches and batteries? 10 A. It is not suspicious; it is a watch for a blind person, and 11 it is a watch for a Muslim blind person that chimes on the 12 hours of prayer. It was a never-ending problem because the 13 prison did not have or would not service in any way the 14 batteries for this watch, which meant that the watch would have 15 to stop working. And then the Sheikh would say, send me the 16 batteries. Then the batteries wouldn't get into the prison 17 because you couldn't send batteries into a prison, and so then 18 a new watch would be purchased. 19 It was an endless kind of an exchange about this watch 20 and whether it was working, whether it was getting into the 21 prison. And it was very important to the Sheikh because he 22 would not know the appropriate times for prayer. And in the 23 Muslim religion, which it is incumbent upon all Muslims to pray 24 at certain times of the day and night, you needed to know the 25 hours so that you would appropriately offer up the prayer. So SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7757 4aresat2 Stewart - direct 1 that is why the watch was always a subject of discussion and a 2 never-ending problem, as I recall. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7758 4ARMSAT3 1 MR. TIGAR: Your Honor, I am about to go on to another 2 subject. Can we take a brief recess? 3 THE COURT: Yes. Ladies and gentlemen, we will take a 4 brief recess. Please, please remember my continuing 5 instructions. Please don't talk about this case at all. 6 Please always remember to keep an open mind until you have 7 heard all of the evidence and I have instructed you on the law. 8 All rise, please, and please follow Mr. Fletcher to 9 the jury room. 10 (Jury not present) 11 (Recess) 12 (Pages 7759-7762 SEALED by order of the Court) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7763 4ARMSAT3 1 (In open court) 2 THE COURT: Whenever the parties are ready. 3 If Ms. Stewart would take the stand, please. And 4 would Mr. Tigar take the podium. 5 (Jury present) 6 THE COURT: Ms. Stewart is on the stand. 7 Mr. Fletcher. 8 THE DEPUTY CLERK: Ms. Stewart, you are reminded 9 you're still under oath. 10 THE WITNESS: Yes. 11 THE COURT: Mr. Tigar, you may proceed. 12 BY MR. TIGAR: 13 Q. Ms. Stewart, in the video that we all saw of that May 19 14 and 20 visit, there were times when you were -- you had papers 15 that you were writing on and things that you were writing and 16 papers you were pulling out of Redwelds while Mr. Yousry was 17 translating for your client and the client was speaking to 18 Mr. Yousry. Do you remember what that was that you were doing 19 then? 20 A. Well, part of it was, I was working for my case on trial 21 that I was conducting in New York Supreme Court, and part of it 22 was I was doing a presentence memo for a client that was due to 23 be sentenced in the Eastern District, and I was working on that 24 at the same time. 25 Q. Now I am going to turn to some material that is in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7764 4ARMSAT3 Stewart - direct 1 transcript here at page 49. 2 MR. TIGAR: Your Honor, this is the same exhibit. May 3 I continue to show it to the witness? 4 THE COURT: Yes. 5 Q. 1706X in evidence. Mr. Yousry says in English: Lynne, 6 look at me and talk a little bit. Then I am going to leave it 7 up. We can all see what is said there. There is more 8 conversation. Mr. Yousry says: They are standing very close 9 by the glass. Then there is -- this continues on the next page 10 and Mr. Yousry begins to read about al-Azhar. Then you say 11 something. Then the next page. And down to: I can get an 12 academy award for it. Then Mr. Yousry says: They stepped 13 back. Then down to Judith Miller where it says in the 14 transcript. 15 First, what's going on? 16 A. Mr. Yousry is reading the material we mentioned earlier 17 about al-Azhar and a student demonstration therein which a 18 number of young people were killed. And he is reading this. 19 Of course, I don't know what he is reading because I don't 20 speak Arabic, but he first notices that the guards are very 21 close to the glass, and then he brings to my attention and I'm 22 saying, well, let's do something to demonstrate that we are 23 engaged in a three-way meeting here so that they do not 24 interrupt. That's the working of my mind at this point. 25 I say the thing about the chocolate heart attack SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7765 4ARMSAT3 Stewart - direct 1 because Sheikh was eating a lot of chocolate. It is not good 2 for him and he has the heart condition. That's just a 3 gratuitous comment. And we go on to say the academy award is 4 just so stupid. Just another remark, big mouth, not thinking. 5 But it was hardly an academy award performance. Then Judith 6 Miller is mistranslated I'm pretty sure. It is really Julie 7 Miller who was a guard at Rochester that the Sheikh 8 particularly did not like, and she had shown up at the window 9 looking in along with the other guards, uniformed guards that 10 were there. 11 Q. In your experience do trial lawyers act sometimes? 12 MR. DEMBER: Objection, your Honor, to what other 13 trial lawyers do. 14 THE COURT: Stop. 15 MR. TIGAR: I didn't hear the ruling, your Honor. 16 THE COURT: I said overruled. 17 MR. TIGAR: Just yes or no. 18 A. Yes. 19 Q. On this occasion, did you believe it was appropriate for 20 you, as a lawyer, to behave as you were behaving? 21 A. Yes, absolutely. I do think, as I said a little earlier, 22 these are confidential discussions supposedly to be away from 23 the eyes and ears of the government, and the guards have been 24 known to listen in and report back, and in my experience and 25 experience of other lawyers, this has happened. And so we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7766 4ARMSAT3 Stewart - direct 1 definitely keep a watchful eye on that kind of behavior. 2 Q. Looking now at the transcript that we have, last item in 3 this particular exhibit, 1706X, on the screen that shows that 4 Mr. Yousry is unfolding a sheet of paper and saying, shall I 5 read Ahmed's letter to you, sir, and your client says, wait a 6 little, and then you say: Shall I approve it? Do you recall 7 that event? 8 A. Yes, I do recall that event. 9 Q. And what's going on there? 10 A. The letter that had been sent by Ahmed Sattar, which we 11 carried with us and which we read, was translated on the plane 12 to me. It was written in Arabic. And when he took it out, 13 apparently, it had not had my sign of approval on it. So I 14 said, shall I approve it, meaning put my sign -- my name on it 15 so that it was clear that Mr. Yousry was authorized by me to 16 read it, having read it in advance. 17 Q. Now, do you recall -- 18 MR. TIGAR: May I have just a moment, please, your 19 Honor? 20 THE COURT: Yes. 21 (Pause) 22 MR. TIGAR: Your Honor, may I display on the Elmo and 23 discuss and show pages of Government Exhibit 1707X, which is in 24 evidence as evidence of the Arabic and as an aid to the tape 25 for the English portions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7767 4ARMSAT3 Stewart - direct 1 THE COURT: All right. 2 Q. Now, Ms. Stewart, I am now going to look through and ask 3 about the second of the two tapes from the May 19 visit, 1707X 4 in evidence. And I am first going to put up -- 5 THE COURT: Could I just stop you just for a second. 6 Ladies and gentlemen, you heard essentially a 7 reference to my prior instruction and I just remind you that a 8 transcript which is of a conversation part in Arabic, part in 9 English, the transcript is evidence of what was said in Arabic 10 because it is the testimony by the translator and it is an aid 11 with respect to the English portion. And as I explained to you 12 earlier today, I have given you a more detailed instruction on 13 the use of transcripts and I'll repeat that again in my final 14 instructions, but that's what that was a reference to. 15 Go ahead. 16 MR. TIGAR: Thank you, your Honor. 17 Q. To orient us, we have the triple asterisk, which is a 18 redaction. 19 You were present for the whole meeting, were you not? 20 A. Yes. 21 Q. And based on an agreement between the parties, there are 22 certain parts that were edited out. 23 There is a reference in here to the -- to your client 24 attempting to learn English. Did he ever become proficient in 25 English? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7768 4ARMSAT3 Stewart - direct 1 A. No. He was -- they did at one point provide someone to 2 come in and work with him to learn English, and he liked that 3 person. And so they terminated that and brought in another 4 person who he either didn't understand or did not -- was not a 5 good teacher, whatever it was. So he said, don't bother 6 anymore. Skip it. 7 Q. Now, we see here at the beginning of Mr. Yousry translating 8 for you, first we have Arabic, the odors keep me up. I can't 9 sleep. This worries me. Mr. Yousry translates. 10 MR. DEMBER: Excuse me, your Honor. Can we just get 11 the page number, please? 12 THE COURT: Yes. 13 MR. TIGAR: The page number here is 6 on our 14 WordPerfect edition. 15 Q. How did you interpret this -- your client's discussion of 16 the smell, the odor, which appears a lot through these things? 17 MR. DEMBER: Objection, your Honor, to the testimony. 18 THE COURT: All right. Rephrase. 19 Q. How did you interpret your client's comments that whatever 20 had been received in evidence here about odors? 21 A. As I said, this had been a consistent complaint of his 22 since Springfield. We frankly didn't know what to make of it 23 in the sense that there was no way to prove or disprove it. We 24 had mentioned it to the prison authorities. They assured us 25 there was no smell. He assured us there was. We thought, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7769 4ARMSAT3 Stewart - direct 1 perhaps, it was something that came from this prolonged -- I 2 thought it came from the prolonged isolation. I also thought, 3 perhaps, his heightened sense of smell because as a blind 4 person my understanding is that certain senses compensate when 5 other senses are deprived. But there was no way of knowing and 6 it was so persistent that it was of great concern to him. We 7 didn't know whether it was real or not. 8 Q. Turning now a little further onto what is at page 16 of 9 this transcript, you come back to the first can't. Mr. Yousry 10 translates: What kind of suggestion that you might have that 11 will help to rejuvenate the media interest in our case then you 12 talk about the Farrakhan thing. 13 Now, what were you trying to accomplish or what did 14 you think could be accomplished if there would be a publicized 15 effort that somebody wanted to see your client? 16 A. Well, as I remarked yesterday when we were talking about 17 the CNN request to see him and I encouraged them to make an 18 application and it was the same here. I thought the chances of 19 bringing a conditions lawsuit in Minnesota for Sheikh Omar, a 20 place that did not have a lot of media would be diminished if 21 it was just the lawyers bringing the lawsuit. But when it 22 establishes a person involved in this, a personage like 23 Farrakhan that would be involved at that point, it does, I 24 think, become more interesting to the media, something that 25 they might indeed cover. And, of course, a case that is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7770 4ARMSAT3 Stewart - direct 1 reported by the media does get a slightly different look to it, 2 attention wise, and that was important to us as well. 3 Q. Let me show you from page 18. You are describing, I would 4 say, once a month someone calls, and then you see what you say, 5 describing to your client what you respond to people. Why was 6 it something that you are saying here about getting the media 7 to go to court? What was in that for you or for your client, 8 rather? 9 A. Well, for my client I guess I would have to say it is a 10 freebie. Media have large groups of lawyers working for them 11 that regularly question and challenge their lack of access to 12 court proceedings or anything. They march into court. I 13 thought if the media was interested enough to want to speak to 14 him, perhaps they would also be interested enough in their 15 bringing a lawsuit. Of course, we would join if not as 16 parties, at least as persons that had an interest in the case. 17 And it could be a springboard from which to get some of the 18 conditions relaxed or at least to open a dialogue with the 19 government to get the conditions changed, relaxed. And 20 ultimately, if we get him moved as a response to this, that 21 would be even better. 22 Q. Turning to page 22, did you see a relationship between the 23 result in Nasser Ahmed's case in 1999 and the Sheikh's 24 condition in the year 2000? 25 MR. DEMBER: Objection, your Honor, relevance. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7771 4ARMSAT3 Stewart - direct 1 MR. TIGAR: I'll withdraw it, your Honor. 2 THE COURT: All right. 3 Q. Showing you page 22 of the transcript from 1707X in 4 evidence, you say: I think we ought to try to build also off 5 Nasser's case. And then that remark continues on to page 23. 6 I'll show that here. Conditions, it's much easier. And then 7 there is some discussion of that with your client, Mr. Yousry, 8 the translator. 9 What are you talking about there? 10 A. That the case of Nasser Ahmed, as we talked about 11 previously, was a case that the client won and that he won it 12 in some part because he had support, media support, he had 13 support from everyday people who wrote and who attended court 14 on his behalf. And if the Sheikh's condition suit could 15 engender some of those same persons -- the same feeling on 16 behalf of those same persons in support of the conditions 17 suit -- I think I said to him at one point, we are not saying 18 free the Sheikh. We are saying, please alleviate these 19 conditions under which he is being housed. And if we could get 20 the American Civil Liberties Union which have taken a part in 21 Nasser's case or if we get David Cole from Georgetown, any of 22 these people to come in with us, it gives us a different 23 imprimatur than the lawyers who have represented him from day 24 one bringing a lawsuit now as the latest thing with regard to 25 his conditions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7772 4ARMSAT3 Stewart - direct 1 Q. Did you understand from this discussion that your client 2 approved the idea of seeking to maintain his visibility in the 3 media? 4 MR. DEMBER: Objection, as to leading, your Honor. 5 A. Yes. 6 THE COURT: Sustained. 7 Q. Based on this conversation, the conversations they have 8 been reviewing, what did you say was appropriate to do with 9 respect to the media? 10 A. Well, the client certainly wanted as much media attention 11 as we could possibly get for him. He also understood, having 12 been a very public figure for a very long time, the importance 13 of that focus, that without that focus and with forgetfulness 14 it is possible to have absolutely no -- what's the word -- 15 bargaining power, presence that is significant on the scene. 16 And he felt that was very important to his future, given the 17 sentence he had received. 18 Q. Now, have you ever held a press conference in the Middle 19 East? 20 A. No. 21 Q. Have you ever been interviewed by Al-Jazeera? 22 A. No. 23 Q. To your knowledge, based on what you were working on, which 24 members of the defense team, if any, had held press conferences 25 in the Middle East? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7773 4ARMSAT3 Stewart - direct 1 A. Ramsey Clark was at that time and I think during this whole 2 period from the point of his conviction -- before the point of 3 his conviction, but certainly after his conviction, and 4 actually up until the present time travelling regularly to the 5 Middle East. And he was basically the person who met with the 6 lawyers in Egypt and in particular and handled matters with 7 regard to the Sheikh there. 8 Q. I want to turn now to some of the discussions about the 9 peace initiative and so on. I want to begin, did you ever 10 release to the media any call on behalf of your client that 11 people should commit violence? 12 A. Absolutely not. 13 Q. And did you believe back in 1999, 2000, and 2001 that it 14 would be proper for you to communicate to the media a call by 15 your client to commit acts of violence? 16 A. No, it would not have been proper. It indeed could have 17 been viewed as a crime in some circles, and for that reason we 18 are allowed to vigorously defend. We are not allowed to break 19 the law as lawyers, and we are not allowed to become part of 20 the client's attempt to break the law should that have 21 happened. 22 MR. TIGAR: Your Honor, I'd like now to show the 23 witness, show Ms. Stewart and to display from portions of 24 Government Exhibit 1710X in evidence, which is another of these 25 transcripts of a videotape. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7774 4ARMSAT3 Stewart - direct 1 THE COURT: All right. 2 Q. Ms. Stewart, to orient us, this is now from May the 20th. 3 Did there come a time on May 19 when your visit with your 4 client ended? 5 A. Yes. As I said, it usually was around 3:00, and they would 6 come in and alert us, and we would wind up whatever we were 7 doing and then leave. 8 Q. As you discussed before, did you then prepare for the next 9 day or discuss the events of what happened with Mr. Yousry? 10 A. We reviewed -- Mr. Yousry and I had reviewed what had taken 11 place and did prepare if anything needed to be further talked 12 about. We would put that on some list or a starred material or 13 whatever it was to talk to the Sheikh the next day about that. 14 Q. This meeting begins or after the redaction with, tell him I 15 had a meeting with the, right here. And I am going to put page 16 2 on. And you met with the warden? 17 A. Yes. 18 Q. Who was that? 19 A. That was Constance Reese. She had been at that time, I 20 think, fairly newly appointed to Rochester. 21 Q. And you had said that you talked about how we are going to 22 Court and how to make sure that these conditions are changed, 23 is that right? 24 A. Yes. 25 Q. I want to ask about that. In fact, did you ever file a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7775 4ARMSAT3 Stewart - direct 1 lawsuit about the conditions? 2 A. No, I never did. 3 Q. And to look ahead there, after this visit that you had in 4 May of 2000, were you able -- was there a time when you were 5 not able to visit with or talk to your client? 6 A. I was notified by Patrick Fitzgerald some time in August of 7 that year that I was no longer permitted to visit or receive 8 telephone calls from my client. 9 Q. And then the jury has seen a videotape of a visit in July 10 of 2001. Was that the next time after this May visit that you 11 personally were able to talk to your client face to face? 12 A. Yes. Mr. Fitzgerald had communicated that if I would 13 re-sign; in other words, reswear to the SAMs that I would be 14 allowed in to visit. Then we had a long period of discussion 15 about the language in that particular SAM that I was to sign. 16 And I did go back to see him finally in July. We had a lot of 17 false starts on visits during the spring of 2001, as I recall. 18 By false starts, we would call and make an appointment and then 19 it would be cancelled or some such thing. 20 Q. Now, was it your practice to try and meet with the warden 21 every time you went to the prison? 22 A. Actually, this was the only time I ever met with the warden 23 unless I met the next time I went. But prior to that I had 24 never met with the warden. I may have had another meeting with 25 her, but this is the one that does stand out in my mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7776 4ARMSAT3 Stewart - direct 1 Q. Did the warden tell you or did any prison official tell you 2 about any logbooks that were kept with respect to your client's 3 activities in the prison? 4 A. No, I was not aware of that at all. 5 Q. Did any prison officials ever discuss with you the video 6 surveillance of your client's cell? 7 A. No, that was never discussed, either. 8 Q. Did you ever meet with or did they ever bring to you to 9 meet with Dr. Edward? 10 A. No, I never met Dr. Edward either. I had discussions about 11 health care, but they were basically not particularly fruitful 12 that I remember. 13 Q. On page 4 of this transcript, we see that Mr. Yousry is 14 saying to you, Lynne, the Sheikh wants to dictate some letters. 15 And you say: Okay, good. And you ask that he be told that the 16 African bombers did not get the death penalty. 17 What was the procedure that you used as the lawyer for 18 your client to dictate letters to Mr. Yousry and then for you 19 to review them? How did that work? 20 A. We would -- we would decide in advance that Mr. Yousry 21 would set aside -- we would set aside some time for the 22 dictation of letters. Either he would be responding to letters 23 that we had brought in, or he would be dictating letters that 24 he wanted to send out concerning affairs of his own. So we 25 would set aside a time. At that time Mr. Yousry would take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7777 4ARMSAT3 Stewart - direct 1 dictation in his notebook and then later, when we got out, I 2 would go back over them with him to decide which of them should 3 be sent or which of them should not be sent. If it was day one 4 of the visit when the letters were dictated -- this was not on 5 day one -- then we would go back in. And any that I did not 6 approve of, we would go back to the Sheikh and talk about why 7 they were not approved. On days like this, when we were going 8 to be leaving and probably not get a chance to talk about them 9 before we left, he would -- the letters would be dictated. 10 Then when we got out, he would read them over to me on the trip 11 back or before we left to go back. 12 Q. Now, did your client have some braille notes that he used 13 to dictate these letters, point 1, point 2, down to point 13, 14 or whatever it was? 15 A. No. They were all from his memory, and I actually should 16 have mentioned that one of the health concerns that became 17 apparent after this visit was his telling us that as a factor 18 of his advancing diabetes, he had lost the sense of touch that 19 enabled him to read Arabic braille. I think he said something 20 like, I have lost the second most important thing in my life, 21 next to my religion, and that is the ability to be 22 communicative in any way, shape or form except by the dictation 23 of these letters. 24 Q. At page 41 -- let me start back. There is a reference -- 25 there had been a reference here before to this Samih Derar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7778 4ARMSAT3 Stewart - direct 1 You are saying, translate, translate immediately. What's going 2 on there? 3 A. With page 41? I see. I didn't know what they were talking 4 about, Mr. Yousry and the Sheikh, but they were laughing so 5 much that I wanted to be in on the joke, if there were one, and 6 that's why I said translate, translate immediately. This had 7 nothing to do with the guards. It just -- just normal when two 8 people are laughing, you want to know what they are laughing 9 about, so I asked them to translate that immediately. 10 Q. Now, here is page 46 of that transcript. And it says that 11 Mr. Yousry is saying: Lynne, the Sheikh has just um dictated a 12 reply to -- pointing to the paper -- this Egyptian thing. And 13 then everybody can read what is said. When Muntasir al-Zayyat, 14 his lawyer in Egypt, and I just suggested that when you have 15 your press conference with Muhamad Salah, the Al-Hayat 16 correspondent on the phone, you can tell him about it, or tell 17 him to call Muntasir and publish the Sheikh's response in 18 Al-Hayat. You say: Oh, very good. Let me put that on the 19 list. What's going on there? 20 A. Well, in the prior telephone conversation we had talked a 21 little bit about having a press conference. This letter that I 22 had said translate immediately was about basically about 23 someone accusing the Sheikh of living under very fine 24 conditions in the American jail. It would have been published 25 in Egypt. Muntasir al-Zayyat had sent it in his letter, an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7779 4ARMSAT3 Stewart - direct 1 ambassador had sent it that the Sheikh was being rewarded for 2 his work in Afghanistan and he was living very comfortably in 3 an American jail. He was giving a rejoinder to that. My 4 assumption here was that that would be the subject matter. At 5 that point I thought the conditions were the subject matter of 6 our press release, and that's basically what I'm saying here. 7 Q. Now, have you ever met Muntasir al-Zayyat, that you can 8 remember? 9 A. No, I don't believe I did. 10 Q. What did you think was the value or purpose of 11 communicating with the Egyptian lawyer about accusations 12 against your client that were being made in Egypt? 13 A. The Sheikh is saying -- this is Yousry translating for the 14 Sheikh. This is not Yousry speaking. This is the Sheikh's 15 voice here. He is saying I have dictated a reply to this 16 scurrilous accusation. You can either release it or you can 17 have the lawyer in Egypt release it. So I said, good, 18 excellent, we will do that. I will put it on the list. We 19 will make a decision, obviously, about which way to do it. 20 Obviously, sometimes it was more efficacious for the lawyer in 21 Egypt to do a press release, which would reach his closest 22 followers, his large base of support in Egypt. Sometimes it 23 was better for the American lawyers to do it. 24 Q. Later on in this meeting the transcript in evidence shows 25 an Arabic conversation beginning at page 50. And your client SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7780 4ARMSAT3 Stewart - direct 1 is shown dictating some newspapers wrote. Did you? The 2 newspaper that wrote about three or four meetings between the 3 Americans and the Egyptians regarding my release? Then 4 Mr. Yousry says: But we already read that one to you, sir. 5 Your client says: Yeah. But where is this newspaper? 6 Mr. Yousry says: I think it is a newspaper in Abu Dhabi Your 7 client: Do you have know its name? Yes its name is known. 8 Your client: All right write down its name. Mr. Yousry: Yes, 9 sir. Your client, write. Some newspapers in the gulf wrote. 10 Your client, yeah. Move this up. Yes, sir for Mr. Yousry. 11 That some meetings between the two governments of America and 12 Egypt took place regarding my release. And then the translator 13 inserts, correcting himself, no, not my release, but to 14 transfer me. Mr. Yousry, yes, sir. To a prison in Egypt. 15 This information was not utilized by the media as it should 16 have been, pause, ha. Writing. Mr. Yousry: Yes, sir. 17 Brother Muntasir, get the name of the newspaper, contact them 18 and ask them about the source of this news, who did they get it 19 from, ha. 20 Continuing on page 51 Mr. Yousry, writing, yes, sir 21 and then you turn the page over. And your client: And expand 22 on this matter. I mean, contact, expand on this matter. 23 Writing, yes, sir. By getting in touch with personnel from the 24 Egyptian foreign ministry and verify it with them. Then he 25 says: Yeah, and verify it with them. Get in touch with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7781 4ARMSAT3 Stewart - direct 1 American lawyer, my American lawyer, and mention this to him 2 and contact with each other to expand on this issue and let it 3 be known to the media. 4 That was in Ara