8769 4BF5SAT1 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 November 15, 2004 8 9:18 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8770 4BF5SAT1 1 (Trial resumed; jury not present) 2 THE COURT: Good morning, all. 3 There were two preliminary matters, one was the York 4 College records and the other was MY-1729 and 1730X. First, I 5 take it those are matters that I have to or should rule on now? 6 MR. RUHNKE: We agree, your Honor. 7 THE COURT: With respect to the York College records, 8 I have reviewed the records again. The records are properly 9 excluded. 10 The records consist of student and faculty evaluations 11 of Mr. Yousry as a teacher. They generally rate him as an 12 excellent teacher and give him high marks for encouraging 13 participation and students feel free to disagree. 14 As I previously indicated, the records are 15 impermissible character evidence. A defendant can introduce 16 evidence of pertinent trait or character. See, Federal Rule of 17 Evidence 404(a)(1), United States v. Han, 230 F.3d 560, 18 563-564, (2d Cir. 2000). Defendant's reputation for 19 uprightness and unwillingness to exploit others admissible in a 20 prosecution for willfully traveling in interstate commerce for 21 the purpose of engaging in a sexual act with a personal under 22 18 years of age. Indeed, the defendant has already introduced 23 character evidence by means of a witness' testimony as to the 24 defendant's honesty. Opinion and reputation evidence is also 25 admissible as to a defendant's character or truthfulness or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8771 4BF5SAT1 1 untruthfulness. See, Federal Rule of Evidence 608(A), but 2 there is no contention that the York College records are 3 evidence of opinions or reputation evidence of character for 4 truthfulness or untruthfulness. 5 In this case, the traits that are reflected in the 6 evaluations of Mr. Yousry as a teacher are not pertinent traits 7 of character with respect to the charges in this case and any 8 possible relevance is outweighed by the danger of confusion and 9 unfair prejudice caused by sympathy for the defendant as a good 10 teacher. See, United States v. Paccione, 949 F.2d 1183, 1201 11 (2d Cir. 1991). Evidence of character for honesty properly 12 admitted by evidence of devotion to disabled son to show 13 defendant would not risk imprisonment is properly excluded. 14 United States v. Davis, 546 F.2d,583, 592-93, (5th Cir. 1977). 15 Evidence, if favorable of work record to negate intent to 16 escape from prison properly excluded. Shakur v. United States, 17 32 F.Supp.2d 651, 668-671, (S.D.N.Y. 1999), summarizing in 18 collecting cases. 19 The objection to the records is sustained. 20 The next issue is MY-1729X and 1730X. The government 21 objects to the admissibility of MY-1729X and 1730X. The 22 recordings contain statements that an article was "shrink to 23 fit" and Mr. Yousry's subsequent statement that he was not able 24 to read the article even after trying to enlarge it. The 25 defendant does not attempt to justify an admission of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8772 4BF5SAT1 1 transcripts under any exceptions to the hearsay rule. See, for 2 example, Federal Rule of Evidence 803. 3 The defendant rather, the defendant asserted that the 4 two transcripts should be admitted as prior consistent 5 statements pursuant to Federal Rule of Evidence 801(d)(1)(B) 6 which defines as non-hearsay a statement by a defendant who 7 testifies in Court subject to cross-examination and the 8 statement is "consistent with the declarant's testimony and is 9 offered to rebut an express or implied charge against the 10 declarant of recent fabrication or improper influence or 11 motive." 12 The defendant expects that the government may not 13 challenge his testimony with respect to not being able to read 14 the article but expects a broader challenge to his credibility. 15 It is plain that the statements by Mr. Yousry that he 16 could not read the article are hearsay, they are out-of-court 17 statements offered for their truth. Thus, his alleged 18 statement to Mr. Sattar is also hearsay and would be excluded. 19 Mr. Yousry can, of course, testify to the 20 circumstances of the article, that it was not readable, and 21 what he did with it and that he was unable to read it but his 22 statements to Mr. Sattar that he could not read it are plainly 23 hearsay. 24 If there is no challenge to the circumstances of 25 receiving the article and being unable to read it, the prior SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8773 4BF5SAT1 1 consistent statement to Mr. Sattar would not be admissible 2 under Federal rule of Evidence 801(d)(1)(B) to prove that 3 Mr. Yousry did not read the article because it was too small. 4 As the Supreme Court has explained, "Admissibility, 5 under the rules, is confined to those statements offered to 6 rebut a charge of recent fabrication or improper influence or 7 motive. Prior consistent statements may not be admitted to 8 counter all forms of impeachment or to bolster the witness 9 merely because she has been discredited. Tome v. United 10 States, 513 U.S. 150, 157, (1995). 11 The Court of Appeals for the Second Circuit has 12 indicated that generalized attacks on credibility do not 13 trigger the admissibility of prior consistent statements under 14 Federal Rule of Evidence 801(d)(1)(B). See United States v. 15 Brennan, 798 F.2d 581, 588, (2d Cir. 1986). 16 Indeed Trial Courts have discretion to exclude 17 portions of prior consistent statements when those portions, 18 "do not relate specifically to matters on which the defendant 19 has been impeached." United States v. Myers, 972 F.2d 1566, 20 1577, (11th Cir. 1992). Internal quotation omitted. United 21 States v. Brantley, 733 F.2d 1429, 1438, (11th Cir. 1984). 22 None of the cases cited by the defendant requires a 23 different result. In each of the cases there was a sufficient 24 link between the impeachment or expected impeachment to make 25 the prior consistent statement admissible for more than a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8774 4BF5SAT1 1 general bolstering of the defendant's story on an issue that 2 had not been called into question. 3 The defendant's reliance on the discussion of 4 rehabilitation in Brennan is also misplaced. That discussion 5 relates to the use of a prior consistent statement following 6 impeachment by a prior inconsistent statement. There is no 7 suggestion that the government would attempt to impeach 8 Mr. Yousry with prior inconsistent statements about the article 9 in question. 10 As Judge Newman explained, when used for 11 rehabilitation, the prior consistent statement must have some 12 force rebutting the effect of a prior inconsistent statement 13 "beyond the mere fact that the witness has repeated on a prior 14 occasion a statement consistent with the trial testimony." 15 United States v. Pierre, 781 F.2d 329, 331, (2d Cir. 1986). 16 One statement by the defendant in his letter does 17 deserve comment. The defendant notes that the jury may 18 question why the transcript of a conversation between himself 19 and Mr. Sattar is not introduced if he testifies to the 20 existence of such a telephone conversation. But there is no 21 basis, for example, for Mr. Yousry to testify that he told 22 Mr. Sattar over the phone that the article was too small to 23 read. That statement is itself hearsay and should be excluded. 24 Therefore, unlike the cases on which the defendant 25 relies, the jury will not thus question why that statement was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8775 4BF5SAT1 1 not recorded because the statement itself is inadmissible. 2 In his most recent letter, the defendant suggests that 3 the transcripts are admissible under Federal Rule of Evidence 4 106 but there is no explanation why they are not necessary for 5 any reasonable completeness. The defendant also suggests that 6 the transcripts are admissible for a nonhearsay purpose, the 7 effect on Mr. Yousry's state of mind as to the existence of the 8 article. But, there is no explanation why his state of mind 9 without any explanation of the content of the articles is 10 relevant and it is plain that the hearsay purpose of the 11 transcripts -- namely to suggest that the articles were too 12 small to be read -- would substantially outweigh any relevance 13 to notification of the existence of the article for a 14 non-hearsay purpose and be excluded under Federal Rule of 15 Evidence 403. 16 This ruling is, of course, subject to revisiting after 17 cross-examination. 18 So ordered. 19 MR. STERN: Judge, I wanted to ask you something about 20 one of your rulings so I don't run afoul, which is that I still 21 intend to call Professor Coleman as a witness. I actually 22 won't try to put in the records nor will I ask him to refer to 23 them. 24 THE COURT: You actually didn't -- you are going to 25 call a professor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8776 4BF5SAT1 1 MR. STERN: Professor Coleman, the professor whom we 2 intended to introduce the York records, calling primarily as a 3 character witness, and I intend to ask him: Now, you are 4 rendering opinion on Mr. Yousry's character what, is it based 5 on? 6 He is not going to say -- I anticipate -- Evaluations. 7 But he will say conversations with students and conversations 8 with faculty. I take it that does not run afoul of your 9 ruling? 10 MS. BAKER: Your Honor, the government objects to that 11 for the reasons or part of the reasons stated in the decision 12 that you just rendered, which is that Mr. Yousry's character as 13 a good teacher is not relevant to any issue in this case. 14 If they wish to call witnesses to testify to 15 Mr. Yousry's character for truthfulness, that would be relevant 16 but his character as a good teacher is not relevant. 17 MR. STERN: I must have misspoken myself. If I did 18 say good teacher I meant good character, and that's what I 19 intend to call him for. 20 THE COURT: He can testify as to a certain trait of 21 character and the cases indicate that character for honesty, 22 uprightness, particularly in a case where fraud is at issue, is 23 a pertinent trait of character as to which the witness can 24 testify. 25 Ms. Baker? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8777 4BF5SAT1 1 MS. BAKER: Your Honor, I agree with what you just 2 said. I guess I was confused by Mr. Stern's statement that he 3 expects the witness to say that the witness' opinion about 4 Mr. Yousry's character is based at least in part on the 5 evaluations because I don't recall anything in the evaluations 6 that seemed to bear on truthfulness. 7 But, if there is not going to be exploration of the 8 details of the evaluations and whether or not he was a good 9 teacher, that's fine. We agree, as I said, that character for 10 truthfulness is fine, character as a good teacher we object to. 11 But as long as everybody is in agreement on that, then 12 we're fine. 13 MR. STERN: I did not intend to refer to the 14 evaluations. 15 THE COURT: All right. 16 MS. BAKER: Your Honor, I did want to raise issues 17 relating to some other Yousry exhibits. I don't know that that 18 has to be done now. I don't have a very good sense of when 19 Mr. Yousry himself will start testifying and I believe that 20 these are exhibits that relate to his testimony. 21 MR. RUHNKE: Your Honor, I don't know if it is 22 something you want to take up with counsel right now. I notice 23 you had a note that you were looking at. 24 THE COURT: Is there another issue, Ms. Baker? 25 MS. BAKER: The government objects to certain Yousry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8778 4BF5SAT1 1 exhibits -- 2 THE COURT: No, no. I meant other than the Yousry 3 exhibits. 4 MS. BAKER: No. 5 THE COURT: No. 6 Let me -- and I don't think I have to take up any 7 other Yousry exhibits before we bring the jury in because there 8 is there is another witness before, to finish on. 9 MR. RUHNKE: There are several witnesses who will be 10 testifying before Mr. Yousry. It is possible he would get on 11 the witness stand this afternoon but I don't think before then. 12 THE COURT: So we will have an opportunity to talk 13 about the other exhibits. 14 MR. RUHNKE: Yes. I think so, yes. 15 THE COURT: Plainly, it would have been something I 16 would have preferred to have been alerted to in a letter 17 before, if the exhibits have been out there for some time or 18 not. 19 Both counsel rise at the same time indicating perhaps 20 not. 21 MR. RUHNKE: Your Honor, we thought we had an 22 agreement -- I thought we had an agreement on one of the 23 issues, it is an issue of summary of documents. 24 The government requested that we make changes to our 25 summaries but now the government is objecting to the summaries SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8779 4BF5SAT1 1 even after the changes were made and there is an outstanding 2 objections to photographs -- I think there is three or four 3 photographs and the government objects to three out of the four 4 or four out of the five. Whatever it is. 5 None of these are earth shattering issues in terms of 6 the amount of time your Honor would need to devote to them. 7 THE COURT: I had, when there were original objections 8 raised to photographs, if they're the same photographs, the 9 baby pictures and the like -- 10 MR. RUHNKE: Your Honor, we narrowed way down the 11 number of photographs. No dogs, no baby pictures. We have a 12 serious offer to make on the photographs. 13 But again, I think that could be done at lunchtime in 14 10 or 15 minutes. 15 THE COURT: Okay. 16 MR. RUHNKE: Whatever your Honor's pleasure is. 17 We have come a long way. We have resolved the 18 completeness objection. We have resolved the translation 19 issues. We have resolved the English language issues. We have 20 obviated the interpreters translation. 21 We have come a long way, your Honor. 22 THE COURT: All right, let me talk to you at the side 23 bar. 24 (Pages 8779-8787 SEALED by order of the Court) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8788 4BF5SAT1 1 (In open court) 2 THE COURT: All right. I believe Mr. Clark is on the 3 stand. 4 (Witness takes the stand) 5 THE COURT: Mr. Clark is on the stand. Let's bring in 6 the jury. 7 Is it Mr. Barkow? 8 MR. BARKOW: Yes, your Honor. 9 THE COURT: You can take the podium, if you wish. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8789 4BF5SAT1 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Good morning, ladies and gentlemen. 4 THE JURORS: Good morning. 5 THE COURT: It is good to see you all. 6 Mr. Clark is on the stand. 7 Mr. Fletcher? 8 THE DEPUTY CLERK: Mr. Clark, you are reminded you are 9 still under oath. 10 THE WITNESS: Yes. 11 RAMSEY CLARK, continued. 12 THE COURT: Mr. Barkow you may begin. 13 CROSS EXAMINATION 14 BY MR. BARKOW: 15 Q. Mr. Clark, I'm not going to use the microphone similar to 16 what Mr. Tigar did to try to make it so the sound is easier to 17 hear. So, if you can't hear anything I say or it was unclear, 18 let me know, okay? 19 A. I had my hearing aid replaced after the embarrassment the 20 other day. They're working much, much, better now. I tuned 21 them up. 22 Q. The acoustics in here are not good. 23 Mr. Clark, last week when you testified you told the 24 jurors, in response to some questions, about some statements 25 that you made about Sheikh Abdel Rahman. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8790 4BF5SAT1 Clark - cross 1 Do you remember that? 2 A. Well, I remember -- I'm not sure which statement you are 3 talking about. 4 Q. Just generally you remember talking about that, right? 5 A. Sure. 6 Q. And you remember talking, generally -- and not getting into 7 the details right now, you very generally talking about a few 8 statements by Sheikh Abdel Rahman that you relayed to the 9 press? 10 Do you remember that? 11 A. Well, the substance of what he said, yes. 12 Q. Now, you never actually publicly stated that Sheikh Abdel 13 Rahman withdrew his support for the cease-fire, is that right? 14 A. I have no recollection of ever getting into that at all. 15 Q. And you never publicly stated that Sheikh Abdel Rahman was 16 reconsidering his support for the cease-fire, right? 17 A. I don't have any recollection of any such information. 18 Q. You never told a reporter that Sheikh Abdel Rahman was 19 reconsidering the support for the cease-fire, did you? 20 A. I don't think it ever came up. 21 Q. Now, you testified in response to questioning by Mr. Stern, 22 if you recall, about how you had these legal telephone calls. 23 Do you remember that? 24 A. Yeah. 25 Q. With Sheikh Abdel Rahman? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8791 4BF5SAT1 Clark - cross 1 A. Yes. 2 Q. And how there had to be some coordination of those calls 3 with other lawyers in advance of the calls, right? 4 A. We had to know what each other was saying to him, yes; and 5 what he was saying to each of the lawyers. 6 Q. And you had to plan who was going to take the call, 7 correct? 8 A. We had to have -- we had to know somebody that was able to 9 take the call and that required some communication. 10 Q. Now, after Sheikh Abdel Rahman's trial, your contact with 11 Ms. Stewart was limited, isn't that right? 12 A. Well, it wasn't as frequent. During the trial we were on 13 trial. Days whenever I was here we would meet every day. 14 Q. I'm saying after the trial was over, your contact with her 15 was limited, correct? 16 A. It was not nearly as frequent, yes. No need for it. 17 Q. Because primarily what you talked to her about is who is 18 going to take these calls, correct? 19 A. No. At first we talked about the appeal quite a bit. That 20 went on for a long time. 21 Q. After the appeal ended, at that point you primarily spoke 22 to her about who would take the calls, is that right? 23 A. I would say most of the conversation was about substantive 24 matters rather than just who is going to take the calls. 25 Usually we would have to talk to each other about who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8792 4BF5SAT1 Clark - cross 1 would have to take the calls. One would say I can take the 2 calls and the others would be notified. 3 We talked about the prison conditions case. We talked 4 about whatever was going on with the Sheikh substantively. 5 Q. Well, you would agree with me that you would be surprised 6 if, on average, you spoke to her maybe more than once or twice 7 every few months, isn't that right? 8 A. It would depend on the period of time. 9 Q. After the appeal? 10 A. The appeal was over in early '98 and after that, the 11 conditions case was essentially over at the same time. I 12 thought so. Sometime he was transferred to Minnesota so there 13 wasn't a lot of need to talk directly about matters but we kept 14 in touch at least once a month or so. 15 Q. Once a month or so? 16 A. Uh-huh. 17 Q. Now, you testified in response to questions about Mr. Tigar 18 about how you and Mr. Jabara and Ms. Stewart kept in touch 19 about Sheikh Abdel Rahman's situation, right? 20 A. Yes; directly and indirectly we had to. 21 Q. Now, you're aware that at some point Ms. Stewart made a 22 statement to a reporter that Sheikh Abdel Rahman withdrew his 23 support for the cease-fire, right? 24 A. I became aware of that, yes. It's hard for me to remember 25 exactly when. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8793 4BF5SAT1 Clark - cross 1 Q. Well, you didn't talk to Ms. Stewart about whether she 2 should relay that statement before she did so, right? 3 A. I have no recollection of it. It is possible. 4 Q. Well, you didn't tell Ms. Stewart before she did so that 5 she could go tell the reporter that Sheikh Abdel Rahman 6 withdrew his support for the cease-fire, right? You don't 7 remember doing that? 8 A. I have no recollection of it. It is possible. 9 Q. But you don't remember it happening, right? 10 A. No. I have tried to remember -- it was a long time ago 11 when we were talking about these things and I just don't have a 12 recollection of it. 13 Q. To the best of your recollection, you didn't know that she 14 had actually done it until you heard about it several months 15 later, isn't that right? 16 A. I think that may be right. I may have known about it 17 before but I was involved in a lengthy trial in Waco, Texas. I 18 had gone down -- I had been going back and forth. 19 In fact, I think -- I have looked at the dates, looked 20 at my calendar, and I was in Leavenworth for Leonard Peltier. 21 Then I went to Waco and I was in Waco from probably June -- the 22 actual trial started on the 19th of June and we were there 23 until after Bastille Day, the 14th of July. 24 Q. And the best of your recollection is that you didn't hear 25 about Ms. Stewart's statement until a few months after it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8794 4BF5SAT1 Clark - cross 1 happened, correct? 2 A. That's -- that's all that I can remember now. It doesn't 3 mean I had known. 4 Q. But that's the best of your recollection, right? 5 A. Yes. It is a pretty vague recollection. 6 Q. Now, when you heard that Sheikh Abdel Rahman had withdrawn 7 his support for the cease-fire, that clashed with your concept 8 of who he was, right? 9 You didn't expect him to say that, isn't that right? 10 A. Well I -- you know, you have to know the circumstances. I 11 can't say it clashed. I can imagine any circumstances under 12 which he would say that under the cease-fire but I don't know 13 the circumstances. 14 Q. Let me ask you this. To the best of your knowledge and 15 your dealings with him, you understood him to be in support of 16 the cease-fire, right? 17 A. Certainly in -- it is hard to remember these dates but 18 it -- 19 Q. I'm not asking the dates. 20 A. But in '97 he supported the cease-fire and the conditions 21 that existed at the time. 22 Q. And you told that to a reporter, right? 23 A. I told that to a lot of people, yes. 24 Q. Mr. Clark, I want to turn to a different subject. 25 Mr. Yousry, his role in the trial of Sheikh Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8795 4BF5SAT1 Clark - cross 1 Rahman, in the trial, was as an interpreter, right? 2 A. He did interpretation, translation during the trial some, 3 yes. 4 Q. And then he had the same role, primarily, as an interpreter 5 and translator during the appeal, correct? 6 A. Yes. He was one of several at that time. 7 Q. Now, you spoke on one of your examinations last week about 8 Muntasir Al-Zayat? 9 A. Yes? 10 Q. You know Muntasir Al-Zayat, correct? 11 A. I met him a number of times. 12 Q. And you have his phone number, correct? 13 A. I've got it somewhere. 14 Q. You have actually been to his office? 15 A. I have been in his office a couple of times at least, yes. 16 Q. And he has a regular office with a secretary or someone 17 there to answer the telephone, right? 18 A. He's got a pretty busy looking office, yes. 19 Q. And it is a place where you can leave a message for him and 20 he will call you back, right? 21 A. I would assume so, yes. 22 Q. I would like to place before the witness, your Honor, what 23 is in evidence as Mohammed Yousry Exhibit 507, if I may? 24 THE COURT: All right. 25 Q. Mr. Clark, this is MY-507 in evidence; do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8796 4BF5SAT1 Clark - cross 1 A. Yes. 2 Q. This picture here, this is Muntasir Al-Zayat on the far 3 left, is that correct? 4 A. That's correct. 5 Q. And that's you in the middle, right? 6 A. That's right. 7 Q. And on the far right is Abdullah Abdel Rahman? 8 A. That's correct. 9 Q. That's one of Sheikh Abdel Rahman's sons, right? 10 A. Yes. 11 Q. He's a different person than Mohammed Abdel Rahman, is 12 another one of the Sheikh's sons, right? 13 A. Sure. This is Abdullah. 14 He has a whole bunch of sons. 15 Q. My question is that this person right here is not Mohammed 16 Abdel Rahman, right? 17 A. No. 18 Q. They're two different people? 19 A. I don't know Mohammed but I know Abdullah and that's 20 Abdullah. 21 Q. Now, Mr. Clark, one of the ways you could keep in touch 22 with Sheikh Abdel Rahman, and the other lawyers could, was 23 through visits with him in the jail, right? 24 A. Yes. 25 Q. Another way was phone calls with his attorneys, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8797 4BF5SAT1 Clark - cross 1 A. Yes. 2 Q. And another way he could keep in touch with his family was 3 through telephone calls, right? 4 A. Yes. 5 Q. And his supporters and his family, they could send him 6 things in the mail, correct? 7 A. Well, he couldn't read, you know, but they could send him 8 things, yes. 9 But I think they had to send them to us. 10 Q. For example, they could send him tapes, correct? Audio 11 tapes? 12 A. Yes. They would send us the tapes and we would send them. 13 That's the way it worked ordinarily, I think. Maybe always. 14 Q. And would you send them to, or they could send them to the 15 Bureau of Prisons, correct? 16 A. To my recollection it is they tried that a time or two and 17 they came back, so they sent them to us and we sent them. It 18 may have varied from time to time. 19 Q. You sent them to the Bureau of Prisons? 20 A. We would send them to, as I recall, the legal advisor at 21 the prison wherever he was at the time. 22 Q. And then your understanding was that at that point the 23 legal advisor would either screen those and then relay them on 24 to Sheikh Abdel Rahman or send them back, correct? 25 A. Well, there was always a long delay. I know it was very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8798 4BF5SAT1 Clark - cross 1 frustrating to the Sheikh. And they said they were screening 2 them. 3 Most of them were, you know, readings from the Quran 4 and readings from various important Islamic texts, and some 5 were music. 6 But they were listening to them. 7 Q. I'm sorry? 8 A. Apparently they were listening to them. 9 Q. Mr. Clark, you testified regarding some of your attempts to 10 get Sheikh Abdel Rahman transferred to a prison outside of the 11 United States, do you remember that? 12 A. I remember talking about getting him, trying to get him 13 back to Egypt, yes. 14 Q. And was it just Egypt that you wanted him to get back to or 15 was it any other middle eastern country? 16 A. It was just Egypt originally. Lately we have been trying 17 others but we're still trying Egypt. 18 Q. There is a legal mechanism through which one can secure a 19 prisoner transfer with another country, correct? 20 A. There are a number of legal mechanisms, yes. A prisoner 21 transfer, which is a very important thing. 22 Prisoners from the United States, we can get prisoners 23 back from Turkey and places like that where they have a 24 miserable life and we try to do that. 25 Q. There is actually, there is a provision of law in the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8799 4BF5SAT1 Clark - cross 1 Code, the law of the United States, that governs prisoner 2 transfers, right? There is a provision of law that does that, 3 correct, certain prisoner transfers? 4 A. Yes. It authorizes agreements with countries for that 5 purpose. 6 Q. And that's -- there is actually a code provision, isn't 7 there? It is between lawyers, 18 U.S. Code 4100. Does that 8 sound right to you? 9 A. That sounds right, yes. 10 Q. And that's the exclusive means in the U.S. Code, isn't it, 11 that provides for such transfer, correct? 12 A. Well, indirectly there are probably other means, we -- 13 Q. I'm talking about just in the U.S. Code. 14 THE COURT: I'm not sure the witness finished 15 answering. 16 THE WITNESS: I'm saying there are probably other 17 indirect means other than the U.S. Code, but that's the main 18 means. 19 Q. I'm sorry, you said it is the main means overall or the 20 main means in the U.S. Code? 21 A. In the U.S. Code. 22 U.S. Code talking about Section 4100, right? 23 Q. Right, Section 4100. 24 Section 4100 only applies when there is a treaty in 25 force with the country to which the inmate wants to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8800 4BF5SAT1 Clark - cross 1 transferred to, correct? 2 A. Yes. I would put it the other way around, that the 3 treaties are made pursuant to 4100. 4 Q. And there is no treaty on prisoner transfer with Egypt, 5 isn't that right? 6 A. There is not one, no. There should be but there is not. 7 Q. So that particular provision -- and I'm just talking about 8 that particular provision, that doesn't apply in Sheikh Abdel 9 Rahman's case, correct? 10 A. There is no treaty at this time so that can't be used. 11 Q. So, you would need to accomplish the transfer with some 12 kind of special or other authority, correct? 13 A. Well you can -- yes, treaty under that would be one too and 14 they can be done pretty quickly. 15 Q. But there is no treaty so you have to go beyond the treaty 16 and beyond Section 4100 to accomplish the transfer as of right 17 now, correct? 18 A. But as I mentioned in the Doherty case, you can do it in a 19 week, waiver. 20 Q. My question though, is that if you accomplish the transfer, 21 it wouldn't have anything to do with a treaty or Section 4100, 22 correct? 23 A. Not unless there had been a treaty agreed to, right. 24 Q. And there is not with Egypt? 25 A. Not at this time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8801 4BF5SAT1 Clark - cross 1 Q. So, there are a spectrum of ways that somebody could 2 accomplish a transfer to Egypt, for example diplomacy, an 3 agreement between the two countries, correct? 4 A. Yes. 5 Q. Some kind of international negotiation, correct? 6 A. Yes. 7 Q. The state department, perhaps, could get involved, correct? 8 A. True. 9 THE COURT: Hold on. 10 Mr. Clark, please keep your voice up. 11 THE WITNESS: Okay. I'm sorry. 12 THE COURT: Thank you. 13 BY MR. BARKOW: 14 Q. The state department would get involved, correct? 15 A. Sure. 16 Q. But not typically or really not at all, a United States 17 Judge wouldn't be involved, this would be kind of an 18 international diplomacy issue, correct, when there is no 19 treaty? 20 A. Well, if there is an extradition request the judge would 21 get involved. There are other ways a judge could get involved 22 without -- you know, with a treaty a judge wouldn't be 23 involved. 24 Q. Without a treaty a judge would not be involved, is that 25 what you said? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8802 4BF5SAT1 Clark - cross 1 A. A judge could be involved, as I say, in extradition or some 2 other means. 3 Q. What I am actually asking about Mr. Clark is with respect 4 to Sheikh Abdel Rahman, in the absence of a treaty with Egypt, 5 there would be other means not involving, for example, going to 6 a judge by which you could accomplish that transfer, correct? 7 A. Sure. The most direct and easiest means are simply an 8 agreement between the countries, which is what we are working 9 for. 10 Q. Now, you have been working on that for some time, correct? 11 A. Yes. 12 Q. And after Sheikh Abdel Rahman was convicted you started 13 working on that, correct? 14 A. Yes, we didn't work on it before. I'm not sure we worked 15 on it extensively during the appeal. I'm not sure that -- you 16 know, we certainly had the idea but there is always the excuse 17 when an appeal is going on. I've got several in this situation 18 right now but you wait until the case is over. 19 Q. Well, it has never worked yet, correct, obviously? It 20 hasn't worked yet, your efforts? 21 A. No, it hasn't. It hasn't. 22 It's been close, I think. 23 Q. I'm sorry? 24 A. I say it's been close. I'm an optimist. 25 I think the United States realizes if Sheikh Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8803 4BF5SAT1 Clark - cross 1 Rahman dies in prison here it is going to be a very unfortunate 2 thing for everybody. Terrible. 3 Q. Mr. Clark, so far the United States government has not, 4 obviously, agreed to transfer Sheikh Abdel Rahman to Egypt, 5 correct? 6 A. That's correct. 7 Q. And so far Egypt, the Egyptian government has not agreed to 8 take Abdel Rahman back, correct? 9 A. There hasn't been a formal agreement. There have been 10 indications that they might be willing to do it. That's what 11 we're working on. I have always believed that we had to get 12 the agreement of Egypt first. 13 Q. Mr. Clark, they haven't done it, right, Egypt? 14 MR. STERN: Judge, may the witness be allowed to 15 finish his answers? 16 MR. BARKOW: I'm sorry. 17 THE COURT: Mr. Clark, I'm not sure you were finished 18 with your answer. 19 THE WITNESS: I can't remember it. 20 THE COURT: Hold on. 21 THE WITNESS: I think I must have been. I don't 22 remember anything else. 23 THE COURT: The reporter can read back the last 24 question and answer. 25 (Record read) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8804 4BF5SAT1 Clark - cross 1 THE WITNESS: That's pretty much what I wanted to say. 2 MR. BARKOW: Mr. Clark -- I'm sorry. May I proceed, 3 your Honor? 4 THE COURT: Yes. 5 BY MR. BARKOW: 6 Q. Mr. Clark, my question is just that obviously as of today, 7 Egypt has not taken Sheikh Abdel Rahman back, correct? 8 A. He's still here. 9 Q. And Egypt, in fact, has never requested an extradition of 10 Sheikh Abdel Rahman to Egypt; they haven't requested it, 11 correct? 12 A. No, they haven't. 13 Q. And you direct your efforts in this regard toward Egypt not 14 the United States, correct? 15 A. That's been the overwhelming effort, yes. We've talked 16 here but not extensively because they say what about -- what 17 about Egypt, what do they say? 18 Egypt says they have no basis for extradition, he is 19 not wanted for any crime there. 20 Q. And you have basically pursued a strategy of trying to get 21 Egypt to agree first, correct, rather than the U.S.? 22 A. Yes. A little bit more than that even to get Egypt to ask 23 for him. I think when the conditions are right they will. I 24 think even the death of Arafat may be an occasion on which they 25 might. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8805 4BF5SAT1 Clark - cross 1 Q. In your efforts you have actually met with Egyptian 2 officials about this, correct? 3 A. Yes. 4 Q. And, on occasion, you have met with high-ranking Egyptian 5 officials about this, correct? 6 A. Yes. 7 Q. Have you ever met with President Mubarak about it? 8 A. No. No, I met with his office but I haven't met with him. 9 Q. You met with who? I'm sorry? 10 A. His office. Some assistant of his. 11 Q. You met with people from President Mubarak's office about 12 it? 13 A. Yes. 14 Q. Now, in these efforts that you made -- and I'm going to ask 15 you specifically between 1997 and 2002, you went to Egypt to 16 work on this in particular at various points, correct? 17 A. I went to Egypt a number of times. 18 Whenever I got in that area I tried to go by to see 19 the family and to work on this. 20 We were also building up support. We would meet the 21 president of Al-Azhar University which we would get his support 22 and he would say he would talk to the president and the 23 president seemed to have no opposition and so we just keep 24 working. 25 Q. And when you say "we," just to be clear, Ms. Stewart, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8806 4BF5SAT1 Clark - cross 1 Mr. Yousry and Mr. Sattar, none of them ever went with you to 2 Egypt to work on this prisoner transfer request, right? 3 A. I don't remember anybody actually going to Egypt with me. 4 I went alone but they were certainly apprised and they had 5 their thoughts about it and I tried to keep in touch. They 6 had -- there was other things to do but they had ideas. 7 Q. But, Mr. Clark, none of them had ever gone with you to 8 Egypt, correct? 9 A. No. None of them had gone with me to Egypt, no. 10 Q. And, in fact, none of them had ever participated in a 11 meeting with officials about the subject of a prisoner transfer 12 with you, correct? 13 A. Certainly not in Egypt. As far as I know not here, 14 although there might have been some casual conversation here in 15 the court house even with somebody. 16 Q. Mr. Clark, I want to turn to a different subject. 17 Your Honor, may I put before the witness and the jury 18 Government Exhibit 906, which is in evidence? 19 THE COURT: Yes. 20 Q. Mr. Clark, I'm showing you Government Exhibit 906 in 21 evidence; do you remember Mr. Stern asked but this? 22 A. Yes, I can see it. I can't quite -- it looks like the 23 date -- I can't quite see the date. 24 Q. There is the top and -- 25 A. Yes, sure. That's my handwriting down there. All of it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8807 4BF5SAT1 Clark - cross 1 except Lawrence W. Schilling. The 24th. 2 Q. Mr. Clark, just to be clear, you are pointing at the bottom 3 where I just wrote the line? 4 A. Yes. 5 Q. That's your handwriting there except for the name "Lawrence 6 W. Schilling," correct? 7 A. Right. 8 Q. If I may, let me read it to you and tell me if I am reading 9 it correctly. 10 It says: I agree to comply with the special 11 restrictions without prejudice to asserting objection to them 12 and seeking administrative and/or judicial review of them, or 13 otherwise seeking to have them vacated or modified. By 14 agreeing to the use of translators, Dr. Omar Abdel Rahman does 15 not waive his attorney-client privilege and the translation -- 16 and the translator is prohibited from disclosing any part of 17 the communications he hears to anyone other than Dr. Abdel 18 Rahman and his attorneys of record. Ramsey Clark. 19 Did I read that correctly? 20 A. Yes. 21 Q. So you wrote that on there at the time that you signed this 22 affirmation, correct? 23 A. Yes, I did. 24 Q. And Mr. Schilling also signed underneath your signature as 25 well, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8808 4BF5SAT1 Clark - cross 1 A. Yes. 2 Q. And you recognize his signature? 3 A. Yes. 4 Q. And obviously this language that you wrote in your 5 handwriting wasn't in the affirmation as it had been originally 6 drafted, correct? 7 A. No. That's something that I added on to make clear that we 8 were reserving the right to challenge the statement that was 9 required because we -- I personally feel it violates the 10 constitution and also to make clear we weren't waiving the 11 attorney-client privilege of the Sheikh by having a translator. 12 Q. Mr. Clark, at the top here it makes reference to the 13 special restrictions dated April 3rd, 1997. 14 Do you see where I just circled that? 15 A. Yes. 16 MR. BARKOW: Your Honor, may I place before the -- 17 actually, may I approach I for a moment, your Honor? 18 THE COURT: Yes. 19 Q. Mr. Clark, I have put before you what is in evidence as 20 Defense exhibit LS-203; do you see that? 21 A. Yes. 22 Q. That's the special restrictions dated April 3rd, 1997, that 23 are referred to in that affirmation, correct? 24 A. Yes. 25 Q. That's what the after -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8809 4BF5SAT1 Clark - cross 1 A. Yes. 2 MR. BARKOW: Your Honor, may I place this on the 3 screen for a moment? This is in evidence. 4 THE COURT: Yes. 5 Q. This is LS-203; that's what I just showed you Mr. Clark, 6 correct? 7 A. Yep. 8 Q. Now, Mr. Clark, you were also asked by Mr. Stern about 9 another -- I think you mentioned another affirmation that you 10 signed. 11 May I place before the witness, your Honor, MY-602? 12 THE COURT: In evidence? 13 MR. BARKOW: I believe this is in evidence, your 14 Honor. Yes, it is in evidence. 15 THE COURT: All right. 16 BY MR. BARKOW: 17 Q. Mr. Clark, this is Defense Exhibit MY-602. 18 Do you recognize that? 19 A. Let me see the bottom. 20 Q. Okay. And here is the second page. And then the bottom of 21 the second page. 22 Do you recognize that? 23 A. Yes. 24 MR. BARKOW: May I approach, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8810 4BF5SAT1 Clark - cross 1 Q. Mr. Clark, to make it easier I have put before you a copy 2 of that, that's a two-page document, correct? 3 A. Yes. 4 MR. BARKOW: May I approach, your Honor? 5 THE COURT: Yes. 6 BY MR. BARKOW: 7 Q. Mr. Clark, I have placed before you what I have provided to 8 counsel and marked for identification as Government Exhibit 9 608; can you take a look at that for a minute and flip through 10 the pages? 11 A. I have done that. 12 Q. Government Exhibit 608 actually contains the two pages of 13 Defense Exhibit MY-602, correct; that is that the two pages 14 that are MY-602 can be found in Government Exhibit 608, right? 15 A. Yes, there are two copies of it in here. 16 Q. And the two pages that make up MY-602 are found exactly in 17 Government Exhibit 608, correct? It's the same facts, isn't 18 it? 19 A. I don't quite follow your question. Maybe it is because I 20 didn't get the numbers. 21 Q. Well, let me ask you this way. 22 If you turn to the second page of Government Exhibit 23 608, that's the same as the first page of MY-602, correct? 24 A. Right. 25 Q. If you turn to the second page -- I'm sorry, the third page SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8811 4BF5SAT1 Clark - cross 1 of Government Exhibit 608, that's identical to the second page 2 of MY-602, correct? 3 A. If you count the transmittal letter the third page is the 4 same as the second page of 602; right. 5 Q. So, Mr. Clark, by looking through Government Exhibit 608, 6 you would agree with me, wouldn't you, that Government Exhibit 7 608 is the whole facsimile that you sent to Patrick Fitzgerald, 8 the cover letter, your affirmation, and another affirmation, 9 correct? 10 A. It looks like the whole thing to me. I don't know of 11 anything else that may have been in there. 12 MR. BARKOW: Your Honor, at this point the government 13 offers Government Exhibit 608. 14 THE COURT: All right. No objections. Government 15 Exhibit 608 received in evidence. 16 (Government's Exhibit 608 received in evidence) 17 MR. BARKOW: May I place it on the screen, your Honor? 18 THE COURT: Yes. 19 MR. BARKOW: May I place it on the screen along with 20 MY-602 for a moment? 21 THE COURT: Yes. 22 BY MR. BARKOW: 23 Q. Mr. Clark, I want to show you here on the top is MY-602 and 24 then below it is Government Exhibit 608. 25 Do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8812 4BF5SAT1 Clark - cross 1 A. Uh-huh. 2 Q. And you can see that the fax line on the top of 602 is the 3 same as the fax line on the top of -- of MY-602 is the same 4 line in the top of Government Exhibit 608, right? 5 A. Yes. It seems to be. 6 There is a little writing under the top one but it is 7 not under the bottom one. But I suppose you're not referring 8 to that. I can't quite read it. 9 Q. You would agree it is the same fax, correct? 10 A. Same time, yes. 11 Q. Mr. Clark, Exhibit 608, this is the cover letter that you 12 sent over your signature -- that's your signature, correct? 13 A. Yes. 14 Q. And this is the cover letter you sent to Patrick 15 Fitzgerald, correct? 16 A. Yes. 17 Q. And then we have got the second page that's identical to -- 18 that's your affirmation, the first page of your affirmation, 19 correct? 20 A. That's the statement I made in connection with it. 21 Q. Here is the third page of Government Exhibit 608; that is 22 also your statement, correct? 23 A. That's the end of it, yes. 24 Q. And here on the bottom you had typed in this paragraph, 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8813 4BF5SAT1 Clark - cross 1 A. Yes. Looks like it was typed in on, probably on our 2 machine in our office. 3 Q. And I am going to read it and tell me if you agree that I 4 have read it correctly. 5 It says: In signing this letter I do not intend any 6 waiver and I am not waiving any -- 7 THE COURT: And am not. 8 Q. Let me start again. 9 In signing this letter I do not intend any waiver and 10 am not waiving any rights of my client, Dr. Abdel Rahman. I 11 reserve the right to challenge on behalf of Dr. Abdel Rahman 12 the constitutionality, legality, and propriety of the terms and 13 conditions of this letter and the requirement that I sign this 14 letter as a prerequisite to being allowed by the U.S. to have 15 any communication with my client by telephone, personal visit, 16 mail or otherwise. I will, however, observe these terms and 17 conditions until I notify you they are no longer agreed to, or 18 they are modified by the U.S. or a court order. 19 Did I read that correctly? 20 A. Yes. 21 Q. That's your signature there on the bottom of that 22 typewritten material, correct? 23 A. Yes. 24 Q. And that typewritten material wasn't in the statement as 25 originally drafted, correct? You had to add it in? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8814 4BF5SAT1 Clark - cross 1 A. The paragraph you just read? 2 Q. Yes. 3 A. Yes, I think we added that. I think I probably wrote it 4 but it is typed. 5 Q. And the next page is the first page of Mr. Jabara's 6 statement, correct? 7 A. Yes, it is. It is the same, it is the same we sent down. 8 Same as the first page of mine. 9 Q. The next page is the second page of Mr. Jabara's statement, 10 correct? 11 A. Right. 12 Q. And at the bottom he has the identical paragraph over his 13 signature, correct? 14 A. Right. 15 Q. The one I just read, correct? 16 A. Uh-huh. 17 Q. Is that right? 18 A. Yes. 19 Q. And then this last page of this exhibit, that's the fax 20 cover sheet that you put on this facsimile, correct? 21 A. Yes; that's what you transmit it with. 22 Q. Now, Mr. Clark, after these affirmations were, or these 23 statements were executed by you and by Mr. Jabara, you and 24 Mr. Jabara were able to have contact with Sheikh Abdel Rahman 25 again, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8815 4BF5SAT1 Clark - cross 1 A. Yes. 2 You say again. We were able to have contact. There 3 had been some brief interruption. I don't recall why but there 4 had been a week or so we hadn't had any contact and we were 5 worried about it. 6 Q. For about a week or so are you were worried? 7 A. About a week or so. Maybe longer. 8 Q. After you signed this statement you were able to have 9 contact with him, correct? 10 A. Yes. 11 Q. And did you? 12 A. Yes. 13 Q. Now, last week you testified a little bit about the lawsuit 14 that you filed regarding Sheikh Abdel Rahman's prison 15 conditions. 16 Do you remember talking about that? 17 A. Yes, I do. 18 Q. That was filed in Missouri, correct? 19 A. That was filed in the Western District of Missouri, Kansas 20 City, I believe. Although the place over in court, 21 Springfield, it may have been filed there. 22 Q. That's a federal district, correct? 23 A. Federal District Court, yes. 24 Q. And you filed that back in 1997, correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8816 4BF5SAT1 Clark - cross 1 Q. And you actually attached as an exhibit to -- let me 2 actually back up. 3 When you file a lawsuit in a civil case you file 4 something called a complaint, right? 5 A. Yes. 6 Q. And you can attach exhibits to a complaint, right? 7 A. Yes. 8 Q. And the complaint that you filed in that lawsuit had, as 9 attachments, your statement, the one I showed you previously 10 today from 1997; and the Special Administrative Measures from 11 1997; correct? They were attached as exhibits? 12 A. They may have been. I don't have a specific recollection 13 of that. 14 MR. BARKOW: May I approach, your Honor? 15 THE COURT: Yes. 16 Q. Mr. Clark, I'm showing you what's previously been provided, 17 it is marked for identification as Government Exhibit 2640; do 18 you see that? 19 A. Yes. 20 Q. I just want to show you the inside and ask you to look at 21 the cover, and then the pages I'm going to flip before you, and 22 then I'm going to ask you if that refreshes your recollection 23 as to whether you attached the statement and the Special 24 Administrative Measures from 1997 to the complaint that you 25 filed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8817 4BF5SAT1 Clark - cross 1 A. Yes, they were attached. Yes. I think there were a bunch 2 of other attachments there too. 3 Q. Now, Mr. Clark, when you filed that lawsuit the Bureau of 4 Prisons was one of the opposing parties, correct? 5 A. Yes. 6 Q. And they opposed the lawsuit, right? 7 A. Yes; the United States represented them and the Department 8 of Justice and they -- 9 Q. Ultimately the parties filed papers -- well, let me 10 withdraw that. 11 Ultimately a United States Magistrate Judge considered 12 the lawsuit, right? 13 A. Well, we filed it in the spring of '97 based on conditions 14 that existed in Springfield, Missouri. The Sheikh was 15 transferred to Rochester, Minnesota in January of the next year 16 and his conditions changed so that after January we essentially 17 coasted on the case, there was no condition of infringe -- 18 conditions didn't apply anymore. The case was what we call 19 "mooted" by it. 20 Q. Mr. Clark, the case, even after Sheikh Abdel Rahman was 21 transferred, was still pending in the courts, right? 22 A. It was dismissed without prejudice as I recall so we could 23 file it again. 24 Q. And when it was dismissed without prejudice, a U.S. 25 Magistrate Judge issued what's called a report and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8818 4BF5SAT1 Clark - cross 1 recommendation after having evaluated the claims that were made 2 in the lawsuit, right? 3 A. I think that's right. 4 Q. And that happened in 1999, right? 5 A. Yes. It was a long time after. I don't know if we even 6 knew he was still working because we thought it was over. 7 Q. And in that report and recommendation the magistrate 8 said -- 9 MR. TIGAR: Objection, your Honor. 10 THE COURT: Yes. 11 Ladies and gentlemen, this is a convenient time for us 12 to take a brief mid-morning break. We will break for 10 13 minutes. Please remember my continuing instructions. Please, 14 don't talk about this case at all. Always remember to keep an 15 open mind until after you have heard all of the evidence and I 16 have instructed you on the law and you have gone to the jury 17 room to begin your deliberations. 18 All rise, please. 19 (Jury not present) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8819 4BFESAT2 1 (In open court; jury not present) 2 THE COURT: All right. Please be seated all. 3 Now, there was an objection to what the magistrate 4 said in the report and recommendation? 5 MR. TIGAR: Yes, your Honor. It's a hearsay 6 objection. 7 THE COURT: All right. 8 MR. TIGAR: And there may be some relevance objections 9 down the road. 10 THE COURT: Yes. 11 MR. BARKOW: Your Honor, the -- I can rephrase the 12 question as it relates to Mr. Clark's understanding about this, 13 but this was discussed last week. And what the magistrate said 14 is not offered for its truth; it's offered first to show its 15 effect potentially on Mr. Clark. 16 He already -- he volunteered in response to my 17 question, which really was just that ultimately a magistrate 18 considered the lawsuit, and I think that I asked -- it was 19 still pending in the courts after he was transferred and he 20 volunteered it was dismissed without prejudice. And so with 21 that fact being volunteered before the jury, it seems fair both 22 to at least complete the record about Mr. Clark's understanding 23 and what it means, what happened to the case, but also as we 24 discussed last week, it's relevant to -- well, and furthermore, 25 Mr. Clark testified and volunteered, I would submit, that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8820 4BFESAT2 1 lawsuit was mooted. 2 And that's not true, as the Court knows. It wasn't 3 only mooted, it was decided on the merits in part. And so I 4 think that that is also fair to at least complete the picture. 5 I don't intend to go through this in great detail, so 6 I think it's relevant to -- in fairness, to complete the record 7 on that score. And also, that as we discussed last week, it 8 demonstrates Ms. Stewart's lack of knowledge about what 9 happened in this case and shows that she was, in fact, not as 10 involved in this case as -- or perhaps as interested in the 11 case as she claims to have been, because there were things 12 found or stated by the magistrate that she didn't know about. 13 And finally, Mr. Clark volunteered, I would submit, 14 as well, that -- his personal belief that the SAMs were 15 unconstitutional, and that was also rejected by the Court. And 16 so in order to present a fair picture to the jury on this 17 issue, I think it's important for some testimony to come out 18 that demonstrates what, in fact, had truly happened in this 19 lawsuit. 20 And also I think it's relevant for nonhearsay purposes 21 both that relate to that and also that relate to Ms. Stewart 22 not being in the loop, to use the language that was used last 23 week, on this lawsuit. 24 MR. TIGAR: Your Honor, there's no challenge to the 25 fact that it's hearsay. Ms. Stewart was asked if she was aware SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8821 4BFESAT2 1 of something. We submit that it's now not -- that doesn't make 2 it relevant for the government to introduce a whole world of 3 facts of which she was unaware; that is to say, that doesn't 4 compute for us, so that relevancy argument we oppose. 5 With respect to Mr. Clark, his relevant state of mind 6 is what he knew about the lawsuit. He's described it. Again, 7 I don't see a matter in issue that is made more or less 8 probable by putting in evidence, the result of the magistrate 9 judge's deliberations and the judge and so on. It begins us 10 down a road which is laden with a great deal of difficulty; 11 that is to say, whether or not this has any binding effect, 12 what the effect of the dismissal without prejudice is, whether 13 the magistrate judge simply said no, as a matter of official 14 immunity, I find a good faith basis. He didn't say -- or 15 whether, in fact, he opined as to the validity of the SAMs and 16 whether there's simply immunity determination and so forth and 17 so on. That would lead us very far afield indeed, given the 18 uncontested evidence that Ms. Stewart says, gee, you know, my 19 impression was it was dismissed without prejudice. 20 All Mr. Clark said was it was dismissed without 21 prejudice, which means we could bring it again. That is a 22 literally truthful statement, because, of course, the damages 23 part related to the custodians in Springfield and not to some 24 custodians at some other time acting under different SAMs 25 issued under different and thereafter revised regulations and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8822 4BFESAT2 1 applying different standards to Sheikh Abdel Rahman. 2 So there's -- that, seems to us, goes to the relevance 3 issue, but also it illustrates that if we start down this road, 4 we're going to be a long time. 5 MR. BARKOW: Your Honor, if I could just say briefly, 6 I think we're down the road a little bit already, because 7 Mr. Clark volunteered things that are not completely accurate 8 in terms of description of this lawsuit. And so if it's -- 9 it's in the record that -- Mr. Clark's understanding about the 10 lawsuit, that he has stated that he understood it was moot. I 11 haven't even been able to ask him yet whether he understood 12 that it also dealt with some of the claims on the merits. So 13 the record is only half full. 14 It's true, and, in fact, the question that was 15 objected to, I was asking about mootness. That was my first 16 question. But there's nothing in the record yet that 17 demonstrates what is, in fact, true; that the lawsuit was also 18 addressed on the merits and so, therefore, there's a misleading 19 picture in front of the jury. 20 I don't intend to go through a long litany of 21 questions on this. I can't guarantee how long it will take 22 because I don't know whether Mr. Clark remembers this or not. 23 I'm happy to give him a copy of the opinion now and have him 24 read it outside of the jury's presence, and then perhaps my 25 questions can be more limited. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8823 4BFESAT2 1 I don't know if he remembers this. I haven't 2 interviewed him on this point. And I'm not planning on asking 3 him about the validity of the SAMs. I just want to establish 4 through him that in addition to what he said, which is that 5 there were some aspects of the lawsuit dismissed for mootness, 6 that some aspects of the lawsuit were addressed on the merits 7 and the case was dismissed, as he said, without prejudice. 8 And he has volunteered that he believes the SAMs are 9 unconstitutional. He has volunteered that the lawsuit was 10 mooted. And I think that it's only fair to complete the record 11 with a little more questioning about it to demonstrate a more 12 complete picture of his understanding, either now or as he had 13 it at the time, which could be accomplished through refreshing 14 his recollection by reading the opinion. 15 MR. TIGAR: Your Honor, Mr. Clark's testimony was 16 entirely accurate. He didn't use mooted in the sense of 17 Supreme Court discussion of mootness. He said, well, it was 18 moot when he was moved. It was dismissed without prejudice, 19 which means you can bring it again. 20 If the examiner believed that Mr. Clark had 21 volunteered the matter that was irrelevant or beyond the scope 22 of the question, the examiner has a nonresponsive motion to 23 strike. But given that your Honor has ruled that I can't put 24 Ms. Stewart on to say, I thought the SAMs were 25 unconstitutional -- she can't say that, it's not a defense to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8824 4BFESAT2 1 these charges -- given the extensive, you know, way in which 2 we, the defense, have been precluded, I respectfully suggest 3 that given the fact that counsel didn't seek to strike the 4 allegedly nonresponsive testimony, it's a collateral matter. 5 He's bound by the answer. 6 THE COURT: Well, I could strike the comments. 7 First of all, with respect to the -- there is an 8 objection with respect to hearsay for the document and the 9 document is, of course, hearsay. 10 Second, there is an objection with respect to 11 relevance to Ms. Stewart's state of mind. And as to that, the 12 witness could be asked some foundation questions about whether 13 he discussed with Ms. Stewart the result of the action; whether 14 he recalls there being any actual decision by any judicial 15 officers in the case that he repeated to Ms. Stewart. Based 16 upon what the witness has said so far, it is -- the answer, one 17 would assume, but I don't know, is that he really doesn't 18 recall very much about that. 19 Now, with respect to what the opinion said -- and it 20 did go somewhat far in considering the validity of the SAMs in 21 the context of the qualified immunity defense. The issue of 22 the legality and constitutionality of the SAMs are matters of 23 law for the Court and not for the jury, and certainly not for 24 the jury to consider the effect of what the magistrate judge 25 said in the context of qualified immunity in order to draw some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8825 4BFESAT2 1 conclusion with respect to the legality or the 2 constitutionality of the SAMs. And that's not a matter for 3 the jury if it's necessary to give a limiting instruction that 4 any testimony by the witness with respect to the legality or 5 the constitutionality of the SAMs is stricken, because that is 6 an issue of law for the Court to instruct the jury, period. 7 There is -- so, I think -- the last point is that the 8 relevance of this whole area is in the Court's view exceedingly 9 slight, exceedingly slight. And after my initial discussion 10 about some discipline this morning, the line of questioning is 11 not well advised. 12 And the reason for that is the suit was dismissed in 13 Missouri in a way that did not prevent the suit with respect to 14 conditions from being brought in Rochester. At the same time 15 the -- as I indicated last week, the decisions with respect to 16 the dismissal of the suit contained certain findings of fact 17 and conclusions of law with respect to some of the arguments 18 that were being made with respect to the SAMs that certainly go 19 beyond concepts that the suit can simply be brought again 20 because there were some findings with respect to some of the 21 arguments that were being made, which -- in which courts did 22 not support certain arguments that were being made with respect 23 to the SAMs. 24 But with respect to those arguments, the legality and 25 constitutionality of the SAMs are not for the jury. So the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8826 4BFESAT2 1 fact that judicial officers made findings and conclusions in 2 the context of qualified immunity with respect to the SAMs is 3 something that's really not for the jury. And so neither side 4 should portray the decision for something that it's not. And 5 the only importance is that the jury not be left with a 6 misleading impression about what was going on or a suggestion 7 that there was something there that was not there. 8 And I started this explanation with the comment that 9 there could have been a far more limited examination on this 10 subject that did not go into the hearsay problems of what the 11 Court said or the problem about -- or the issue with respect to 12 the legality or constitutionality of the SAMs. If the 13 relevance of this particular decision is simply, gee, was there 14 a decision? Did the witness speak about it with Ms. Stewart? 15 And what, if anything, did he convey to Ms. Stewart with 16 respect to Ms. Stewart's state of mind? That's a series -- 17 that's a very small series of questions. It does not attempt 18 to explore with the jury what the judicial officers said with 19 respect to the constitutionality and legality of the SAMs. 20 And if it's necessary for the Court to give a limiting 21 instruction, I see little left to explore in this area. And 22 the parties, if they want, can talk about that and we'll take 23 five minutes. And we've spent longer on this subject than we 24 should have. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8827 4BFESAT2 1 MR. BARKOW: Your Honor, given the colloquy that just 2 occurred, the government would move to strike the testimony by 3 Mr. Clark that the case was mooted, and also that he personally 4 feels that it violates the Constitution; that is, the 5 affirmation. 6 I have page numbers on LiveNote but I don't know if 7 the Court -- I assume the Court has the same page numbers. The 8 latter comment about the personal feeling that it violates the 9 Constitution is page 38, lines 11 through 13. And the case 10 being mooted is page 47, lines 17 and 18. And so we would move 11 to strike those comments and ask for basically the instruction 12 that the Court proposed in its comments. 13 And just so the Court knows, even before the 14 objection, I had a very small handful of questions left on this 15 subject. After the objection, I have a very small handful of 16 questions left on this subject. And I have one subject to 17 cover after this, and I expected to be done within five to 18 seven to ten minutes with this witness. So I'm very close to 19 being done. 20 MR. TIGAR: Your Honor, we object to the mootness 21 request to strike on the grounds that we don't see any basis 22 for striking it. That's his opinion and it's a permissible one 23 within the range of opinions that lawyers might have. 24 With respect to the other, you know, I thought that a 25 nonresponsive objection should have been made when the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8828 4BFESAT2 1 nonresponsive answer is given, rather than to have it be after 2 a recess where it looks like we're punishing the witness for 3 something. I respectfully suggest it's been waived. It's 4 making a mountain out of a mole hill. 5 THE COURT: Oh, is -- it's no different now, and 6 certainly there's no adverse inference against the witness from 7 the fact that it's made now than earlier. And it is a -- 8 it's plainly correct that his personal view as to the 9 constitutionality of the SAMs is not relevant and is a matter 10 that would otherwise invite exploration which itself would have 11 substantial 403 issues in addition to relevance issues. 12 So I will strike -- I'll strike the answer with 13 respect to his personal view as to the constitutionality of the 14 SAMs. And I will tell the jury that of course matters of law 15 are for the Court to instruct the jury on. 16 As to the second question, that the case was mooted, I 17 will not strike that because I don't -- I don't view the 18 mootness answer as necessarily limited to a technical legal 19 description of mootness which the jury would not be informed -- 20 of which the jury would not have knowledge in any event. And 21 it is, if you -- the government could explore if it wanted 22 that -- what that meant, but it plainly is -- is also the case 23 that despite what the Court said with respect to qualified 24 immunity, etc., that the -- it was dismissed without prejudice. 25 And that is based on the fact that he was no longer there and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8829 4BFESAT2 1 no longer subject to those conditions. So it's a loose -- it's 2 a loose description, but one that there is not a basis for me 3 to strike. 4 Anything else? Any other questions you want to run by 5 me first so that we don't have to break? 6 MR. BARKOW: Your Honor, the next subject that I'm 7 going to inquire into very briefly is some of the work that 8 Mr. Clark has been doing since being the Attorney General. And 9 that's the last subject that I'm going to ask questions about. 10 MR. STERN: I'm going to object to that. I think the 11 reason to do that is to bring out that he's represented 12 unpopular clients, people who might inflame the jurors. I 13 think under 403 it's inappropriate. He's represented, among 14 others, Yasser Arafat. I think he was involved in the case of 15 Milosevic. There's all sorts of cases he's been involved in. 16 If he intends to ask him about the general type of 17 work, I have no objection to that. But to bring out the names 18 of particular defendants or particular cases, I think, should 19 be precluded under 403. 20 MR. BARKOW: Your Honor, Mr. Clark, when he came on to 21 the witness stand, was asked from the beginning of his 22 testimony about his background. He talked about how in the 23 '60s for a period of about eight years he worked in the justice 24 department; in the first, second and third highest ranking 25 positions in the justice department. He described generally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8830 4BFESAT2 1 what kinds of work he did there, not specifically. 2 The defense with respect -- as it relates to 3 Mr. Clark, the defense theory, I think, fairly can be said 4 hinges in significant part on Mr. Clark's, for lack of a better 5 word, gravitas. He has been repeatedly mentioned, repeatedly. 6 In fact, every time he has been mentioned, I think it is almost 7 fair to say, as the former Attorney General. In the opening 8 statement he was mentioned at least three times by -- at least 9 three times; once by Mr. Tigar, once by Mr. Ruhnke and once by 10 Mr. Paul as the former Attorney General Ramsey Clark. I have 11 the quotes. 12 THE COURT: Look, hold on. He can be examined with 13 respect to the general nature of his work. There's no 14 objection with respect to that. 15 With respect to the names of particular clients, I 16 sustained an objection with respect to an exploration -- 17 government's objection with respect to the exploration of some 18 prior clients of Ms. Stewart. The fact that someone represents 19 an unpopular client doesn't undercut a person's gravitas or the 20 fact that the person was a former Attorney General. 21 And the notion that a person is -- that it's a fair 22 subject for impeachment that a person has represented unpopular 23 clients is a valid 403 objection. General nature of his work? 24 MR. BARKOW: Your Honor, I'm not sure I understand 25 what the general nature of his work is, other than what was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8831 4BFESAT2 1 brought out on direct, which is he's a human -- international 2 human rights lawyer. And that -- the discussion, if I may, 3 your Honor, because this is it. This is all I have left. 4 At the beginning -- 5 THE COURT: Hold on. If the point is to say in the 6 course of your work you've represented Mr. Milosevic, an 7 alleged mass murder, I'll sustain that objection. 8 MR. BARKOW: Both parts of the question, your Honor, 9 or just the -- you've represented Mr. Milosevic? 10 THE COURT: Both parts, yes, both parts. Both parts. 11 MR. BARKOW: Your Honor, in opening statement 12 Mr. Clark was mentioned by each defendant as a person who is 13 essentially a significant spokesperson on law enforcement, OK, 14 Ramsey Clark, the former Attorney General, each time he was 15 mentioned. 16 In Ms. Stewart's testimony, she said gratuitously on 17 cross-examination, I learned why he was so persuasive as the 18 Attorney General. Mr. Tigar, when he asked Mr. Clark to speak 19 into the microphone on Thursday, asked, excuse me, General 20 Clark, may you speak into the microphone. 21 The questioning -- 22 THE COURT: I -- the fact that a person represents 23 an -- 24 MR. BARKOW: It's not just about representation, your 25 Honor. If I may, because this is all I have left, so if I may SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8832 4BFESAT2 1 just air this before we go there. 2 Mr. Tigar addressed him as General Clark in front of 3 the jury. So the impression for the jury is that what 4 Mr. Clark has done -- because the questioning by Mr. Stern took 5 him through his career up until 1970, when he left his post as 6 Attorney General. And then he testified very generally that 7 he's done civil rights work, human rights work, and what he 8 likes to call international human rights work, antinuclearism 9 and peace. That's it. 10 So his background, which is relevant and admissible 11 for a witness, is in up until 1970. Nothing that he's done 12 since 1970 in any specificity is before the jury. And it's not 13 just relevant, your Honor, for what we think is relevant to 14 show a more complete picture of his background, so at least the 15 jury doesn't have half the impression about what he did up 16 until 1970 and no impression about what he's done since then; 17 but also, your Honor, it's not just representation, it's 18 relevant to show bias, which is a proper and expansive source 19 of cross-examination. 20 Mr. Clark did not just represent Slobodan Milosevic. 21 He went to the Balkans while the United States and NATO were 22 intervening there to stop the genocide and he condemned the 23 US/NATO efforts. I'm not going to get into this much detail, 24 but I want the Court to be -- I don't propose to get into this 25 much detail, but I want the Court to be aware of the font of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8833 4BFESAT2 1 the theory there. So at that point that's what he did. 2 In 1980, when the United States hostages were being 3 held in Iran, he went to Iran and he presided over a war crimes 4 tribunal that convicted the United States of war crimes in 5 Iran, while the hostages were being held in Iran. 6 He represented -- well, he represented -- some of 7 these are representations because they show a more complete 8 picture; that he didn't just have the position as the number 9 one law enforcement person in the United States. He did 10 represent -- I was going to ask about Haitian refugees. I 11 don't think there's anything controversial about that. He 12 represented Nazis who were facing deportation against the 13 deportation proceedings, concentration camp guards, an SS 14 officer who was -- participated in the Warsaw ghetto 15 liquidation, for lack of a better word here, which I would not 16 use in front of the jury. 17 He represented the PLO in the Achille Lauro incident 18 and Yasser Arafat. And he volunteered -- I wasn't planning on 19 asking about this either, but he volunteered to represent 20 Saddam Hussein. 21 This is just a more -- he participated in a war crimes 22 tribunal in 2001 in North Korea that convicted the United 23 States of war crimes in Korea. And each time any US 24 administration since Mr. Clark has left the government has done 25 any international work of this nature, like intervention in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8834 4BFESAT2 1 Rwanda, another world leader that Mr. Clark represented against 2 deportation -- I don't know how to pronounce his name, but Kutu 3 pastor elisafan, something or the other -- he condemned the 4 United States for intervening on behalf of humanitarian aid in 5 Rwanda. 6 So Democratic, Republican, it doesn't matter, whatever 7 administration, he has demonstrated a bias against the United 8 States and its policies and against the United States' view of 9 what law enforcement and proper law enforcement is. 10 And so both on the theory that it shows his bias and 11 also on the theory that it gives a more complete picture of the 12 last 35 years of what Mr. Clark has been doing, all he's 13 testified about is essentially the first ten years of his 14 career. And we think that it is unfair to the government to 15 allow the defendants to make him such a significant part of 16 their defense to make his effect on them and their state of 17 mind such a significant part of their defense because of who he 18 is, largely. 19 It's largely -- it doesn't matter what Mr. Clark said 20 or did in large part. It's who he is. And for the jury not to 21 know anything about who he is, other than the fact that he was 22 the Attorney General in 1970 and then went on to work in 23 antinuclearism and peace, we don't think that is a fair 24 depiction to the jury -- and I wouldn't argue with him about 25 it, I wouldn't go through excruciating detail about what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8835 4BFESAT2 1 happened in Kosovo, but it is at the same level of generality 2 about his work representing the United States as the chief law 3 enforcement officer. I think it's relevant to show that he 4 also represented people who did things like that, so they don't 5 have the wrong impression or incomplete impression about who he 6 is. 7 MR. STERN: What's really interesting, Mr. Barkow 8 says, represent people who do things like that. We're defense 9 lawyers. We represent people. The government knows very well 10 how to indict people they think have broken the law. Mr. Clark 11 is a wonderful American who's entitled to his opinion about 12 international politics, who's entitled to go places and 13 represent people. If he did something wrong, they would have 14 charged him. 15 It's very clear from what we just went through the 16 last few minutes that the government hopes that this prejudices 17 the jury against him. They should not be allowed to do it 18 under 403. 19 THE COURT: I agree that the -- again, the specific 20 clients falls on the side of 403, based on listening to what 21 the government has said, where the relevance is outweighed by 22 the unfair prejudice. 23 If there are -- although the general nature of his 24 work is something that can be asked about, if there are 25 situations that go towards bias that are not the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8836 4BFESAT2 1 representations, such as participation in war crimes tribunals 2 against the United States, that's relevant for bias, goes 3 beyond representation and necessary for completeness to the 4 picture that was presented. 5 I am sensitive to the objection that was made that a 6 witness should be somehow subject to impeachment based on the 7 identity of the individual clients that the witness represents, 8 and that somehow the jury is asked to draw a negative inference 9 from representation of unpopular clients. That's a fair 10 objection and I am glad that you raised it. 11 And if you'd like another two minutes to go over your 12 notes, we can have another two minutes. 13 MR. BARKOW: I don't think I need two minutes, your 14 Honor, but I just want to ask to make sure I don't run afoul, 15 then, of the Court's ruling. 16 I think I set forth some of the facts about Iran and 17 that war crimes tribunal, so I'd propose that I ask some 18 limited questions about that, and North Korea. And I would ask 19 some other limited, very limited questions which I think are 20 completely not controversial, basically about the last time 21 that Mr. Clark worked in the government. 22 So with those limits I won't get into what I think is 23 his representation of people in either criminal cases or 24 extradition proceedings or deportation proceedings, but instead 25 only the wars crimes tribunals. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8837 4BFESAT2 1 The Milosevic situation, I don't know if the Court 2 was -- what side of line the Court was saying that. My 3 understanding was he did not represent Slobodan Milosevic but 4 instead travelled to the Balkans and essentially sided with 5 Milosevic and condemned the US intervention, humanitarian 6 intervention there. And I don't think -- he didn't help him in 7 the war crimes court, I don't think, but he did make statements 8 condemning the United States and NATO activities toward 9 Milosevic, I think would be a fair way to summarize it. 10 So I don't know which side of the line the Court is 11 saying that that goes. But I don't need any more time to 12 prepare, I'd just like to make sure that that questioning I 13 just described is not going to run afoul of the Court's ruling. 14 THE COURT: Mr. Tigar? 15 MR. TIGAR: Yes, your Honor. If indeed the subject of 16 Mr. Clark's views on United States and war crimes are opened, I 17 announce our intentions, then, to ask the witness the basis for 18 his views on this subject. Because I think that when the -- 19 his views are fully set forth, if they're not given an 20 opportunity to be on cross, that they will show that, in fact, 21 he harbors no bias against the United States. 22 Also, if they're going to ask about his last service 23 with the government, we would intend to ask about how Janet 24 Reno called him down there to get her started in her job. 25 THE COURT: All right. At this point the comments SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8838 4BFESAT2 1 with respect to Milosevic do fall on the wrong side of 403, his 2 expressed views on that subject. His activities, as you've 3 described, would be admissible on the subject of bias. And you 4 hear what the response would be on whether there's bias, and I 5 would allow redirect on whether he expressed any bias. 6 I don't know what his last job with the government is, 7 so I don't know whether he was called in under Janet Reno or 8 not. If the question gets asked, his response will follow. 9 MR. BARKOW: Your Honor, all I was planning on asking 10 him was that he was last the Attorney General in 1969, and he's 11 been in private practice since then, which is a repetition of 12 what he said on direct, and that he's been in cases since then 13 where the United States has been the other party. 14 MR. STERN: I'm going to object to that. That's 15 precisely what lawyers do, is represent people; sometimes in 16 the United States, sometimes other parties. It's irrelevant 17 who the party is when a lawyer takes a case. 18 MR. BARKOW: I was just explaining what private 19 practice means, because I don't know what -- 20 THE COURT: What does private practice mean? I mean, 21 plainly you can follow up, government can follow up what 22 private practice means. 23 All right. Let's bring the jury back, please. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8839 4BFESAT2 1 (In open court; jury present) 2 THE COURT: All right. Ladies and gentlemen, in the 3 course of one answer the witness had expressed his personal 4 view as to the constitutionality of the SAMs. I'll strike that 5 response and you're directed to disregard it. Matters of law 6 are for the Court to instruct the jury on. 7 All right. Mr. Fletcher, the witness is on the stand. 8 THE DEPUTY CLERK: Mr. Clark, you are reminded you are 9 still under oath, do you understand? 10 THE WITNESS: Yes. 11 THE COURT: All right. Mr. Barkow, you may proceed. 12 MR. BARKOW: Thank you, your Honor. 13 BY MR. BARKOW: 14 Q. Mr. Clark, after that lawsuit was over, you never filed 15 another conditions lawsuit on behalf of Sheikh Abdel Rahman, 16 right? 17 A. No. We were working on them from time to time. The 18 occasion that we thought was right never occurred. 19 Q. So since he moved to Rochester, you did not file another 20 lawsuit like that, right? 21 A. No, we -- conditions improved some and we negotiated but we 22 never filed another suit. We were preparing to. 23 Q. When you say "the conditions improved," do you mean the -- 24 A. His prison conditions, yeah. 25 Q. Now, Mr. Clark, you were the Attorney General of the United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8840 4BFESAT2 Clark - cross 1 States, correct? 2 A. That's right. 3 Q. And you last held that position in 1969, right? 4 A. Yes, January of '69. 5 Q. January of '69. And you've been in what lawyers call 6 private practice since then, correct? 7 A. Yes. 8 Q. And that means that you represent private clients as 9 opposed to government or public clients, right? That's what -- 10 A. Pretty much so, yeah. I represent some public entities, 11 but basically you're a private citizen doing private things. 12 Q. Now, Mr. Clark, I just want to ask you about a few things 13 that you've been working on or that you had worked on since you 14 left your post as Attorney General. 15 Back in 1980 you participated in a conference in Iran 16 called crimes of America, or something like that, correct? 17 A. I went to Iran in midsummer of 1980, which was about seven 18 months after the hostages were taken at the embassy, a matter I 19 spent quite a bit of time on. And there was a conference, 20 international conference going on. I can't tell you the title 21 of the conference, but I can tell you that most of the people 22 there were not speaking friendly about the United States. 23 Q. The subject matter of the conference, forgetting the title 24 but the subject matter of the conference was basically US war 25 crimes in Iran, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8841 4BFESAT2 Clark - cross 1 A. Yes -- war crimes in Iraq? I don't think so. 2 Q. Iran. 3 A. In Iran? I wouldn't say that. I don't really know. I 4 know that I was able to tell the conference and tell national 5 television that I thought for the well being of everybody, our 6 hostages ought to be released. 7 Q. Well, when you were there in this conference, you 8 participated in a tribunal that actually convicted the United 9 States of colluding with the Shah of Iran, correct? 10 A. I don't -- there's certainly no legal tribunal. Whether 11 there was an informal tribunal, I don't really remember. I 12 know that wasn't the purpose of my trip. 13 Q. But you did participate in such a tribunal when you were 14 there, right? 15 A. I can't tell you I remember participating in any mock court 16 or mock tribunal. I spoke to the group, big group, from all 17 over the world, pretty much, and said what I thought about a 18 good many things, including some US conduct certainly. But I 19 don't remember that I was acting as a judge or a prosecutor or 20 a juror or anything like that. 21 Q. And including that you criticized the United States hostage 22 rescue attempt, didn't you? 23 A. Criticized the United States what? 24 Q. Hostage rescue attempt. 25 A. I thought it was a terrible mistake. Cy Vance resigned as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8842 4BFESAT2 Clark - cross 1 Secretary of State because of it. I thought it risked the 2 lives of every hostage. I knew the basement of that embassy 3 well. I can tell you that they had those hostages in separate 4 rooms and to kill them, there would be no way to get them out. 5 It was just a very foolish thing to do. 6 Q. Well, you criticized the rescue mission as lawless and 7 contrary to constitutional government, isn't that right? 8 A. Well, it certainly was contrary to international law. 9 Constitutional government, I'd have to think about it. I 10 didn't think about it in those terms. It was certainly, as a 11 practical matter, a terrible mistake that we were fortunate 12 wasn't a greater disaster than it was. And it was lawless and 13 it's not the way to get your hostages out alive. 14 Q. And finally on that subject, Mr. Clark, when you were 15 there, the hostages were still being held, correct? 16 A. Yes, they were. 17 Q. Now, in 2001 or so you participated in a war crimes 18 tribunal in North Korea, too, correct? 19 A. I don't remember -- I've been to North Korea several times, 20 twice maybe, maybe several. I've travelled a long time. I 21 don't remember a trial as such, no. 22 Q. Trial -- 23 A. There may have been one in the south. May have been one in 24 South Korea. I don't remember one in North Korea. 25 Q. Well, in Korea, North or South Korea, you participated in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8843 4BFESAT2 Clark - cross 1 a -- what was called something like the Korean truth commission 2 or international war crimes tribunal; does that ring a bell? 3 A. Those are titles that are often used in those, truth 4 commissions or international criminal tribunal that are just 5 people. I mean, there's no government in these particular 6 types. But it's a means of expressing opinions, yeah. 7 Q. And actually, in one of these trips to Korea around that 8 time you participated in a tribunal that convicted the United 9 States, not in a formal legal sense but convicted the United 10 States of war crimes in North Korea, isn't that right? 11 A. Again, I don't remember the tribunal aspect or 12 participating as a judge or anything like that. I certainly 13 remember talking about killing of civilians at No Gun-ri and 14 places like that that occurred. Just those tragedies that 15 occurred in war, all war, in the Korean War and its aftermath. 16 Q. And, Mr. Clark, obviously in this work that we just talked 17 about and since 1969 you weren't functioning as the Attorney 18 General; you'd agree with that, right? 19 A. Certainly not. 20 MR. BARKOW: Nothing further at this point, your 21 Honor. 22 THE COURT: All right. 23 MR. STERN: May I redirect, your Honor. 24 THE COURT: Yes. 25 - - - - - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8844 4BFESAT2 Clark - cross 1 REDIRECT EXAMINATION 2 BY MR. STERN: 3 Q. Mr. Clark, as you sit here today, are you still the 4 attorney for Sheikh Abdel Rahman? 5 A. Yes, I still represent him as best I can. 6 Q. Now, you were asked a number of questions about Section 7 4100 of the US Code. Do you recall those questions? 8 A. Yes. 9 Q. If the US and Egypt were to reach an agreement that it was 10 in the best interest of both countries that the Sheikh be 11 returned from the US to Egypt, how long do you think it would 12 take to get a treaty up under Section 4100? 13 MR. BARKOW: Objection. 14 THE COURT: Overruled. 15 A. It would depend on how big a hurry. You could do it in a 16 few hours, if you really had to, but I'd say there's no reason. 17 It would take a week, I think that's what, you know, Joe 18 Docherty says, supposed to be in the Irish Republican Army. If 19 the courts here were not extraditing them, they entered into a 20 treaty both in the UK and US, took about a week, as I remember. 21 Q. You were asked a number of questions about Mr. Yousry 22 acting as interpreter during the trial, right, and Mr. Yousry 23 as an interpreter during the appeal and acting as an 24 interpreter after the appeal was complete; do you remember 25 those questions? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8845 4BFESAT2 Clark - redirect 1 A. Yes. 2 Q. Now, during the time he was acting as an interpreter, did 3 he always want to continue acting as an interpreter for the 4 Sheikh? 5 A. Well, I think it was a tremendous burden for him. I mean, 6 there were three lawyers who could talk -- four, actually, and 7 only one interpreter. And it was taking an enormous amount of 8 his time and -- but I think I'd have to say he was very 9 faithful about it. I think he hoped we could find other 10 interpreters. And we tried very, very hard, but we couldn't 11 get any approved by the government. 12 Q. And did he tell you of his hopes that you could find other 13 interpreters? 14 MR. BARKOW: Objection. Hearsay. 15 MR. STERN: State of mind, your Honor. 16 THE COURT: All right. Go ahead. 17 Q. Did he tell you of his hopes that you could find other 18 interpreters to help on the case? 19 A. Well, I knew he hoped very much that we could, because that 20 would give him some relief. 21 Q. And why didn't that happen? 22 A. That didn't happen because the government wouldn't approve 23 anybody, still hadn't. 24 MR. STERN: I have nothing else. Thank you, 25 Mr. Clark. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8846 4BFESAT2 Clark - redirect 1 THE COURT: All right. 2 MR. TIGAR: May I inquire, your Honor. 3 THE COURT: Yes. 4 RECROSS EXAMINATION 5 BY MR. TIGAR: 6 Q. Mr. Clark, since you left the justice department in 1969, 7 have you been called on by your successors to consult with them 8 about issues that they face? 9 A. From time to time. I lend a hand to the government from 10 time to time. 11 Q. Were you called upon by Attorney General Reno to consult 12 with her as she began her term as Attorney General? 13 A. Yeah, you could put it that way. She -- I think she called 14 and said she'd like to talk about what I thought would be 15 important for her to try to do. So I went down and spent some 16 time with her. 17 Q. And has your private practice since you left the justice 18 department in 1969 dealt with issues of international law? 19 A. It's dealt with issues of international peace, 20 international human rights, and it's been probably largely a 21 majority international in its subject matter, law and facts and 22 people. 23 Q. Do you believe, sir, that all the nations of the world are 24 obligated to obey and apply international law in their 25 dealings? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8847 4BFESAT2 Clark - recross 1 MR. BARKOW: Objection. 2 THE COURT: Sustained. 3 Q. In your interpretation of international law are you biassed 4 against the United States of America? 5 A. Well, I don't think I'm biassed against the United States 6 of America. I think we can do a better job of complying with 7 international law, though. 8 MR. TIGAR: No further questions. 9 MR. FALLICK: I have no questions, your Honor. 10 THE COURT: All right. 11 MR. BARKOW: Very briefly, your Honor. 12 THE COURT: All right. Limited to redirect. 13 MR. BARKOW: Yes, your Honor. 14 RECROSS EXAMINATION 15 BY MR. BARKOW: 16 Q. Mr. Clark, you were asked just a moment ago by Mr. Tigar 17 about Attorney General -- Attorney General Janet Reno. You've 18 met her, correct, or spoken to her on the phone? 19 A. Yeah, I went down there and talked with her. I met her 20 more than once, of course. 21 Q. In person? 22 A. Additionally she came in, she -- I don't know that she made 23 the call, but somehow or other I got the information that she'd 24 like to have a chat with me when I was in Washington so I went 25 down to see her. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8848 4BFESAT2 Clark - recross 1 Q. You met her face to face, right? 2 A. Oh, yeah. 3 Q. I'm sorry? 4 A. We talked for several hours on that occasion, yeah. 5 Q. And you've met her more than once? 6 A. Mm-mm. 7 Q. You've never spoken to her or communicated with her asking 8 her to modify or remove the SAMs placed on Sheikh Abdel Rahman, 9 have you? 10 A. I never took it up with her, no. 11 MR. BARKOW: Nothing further, your Honor. 12 THE COURT: All right. All right, Mr. Clark, you're 13 excused. You may step down. 14 (Witness excused) 15 MR. STERN: I call professor Zachary Lockman. 16 ZACHARY LOCKMAN, 16 17 called as a witness by the Defendants, 18 having been duly sworn, testified as follows: 19 DIRECT EXAMINATION 20 BY MR. STERN: 21 Q. Professor Lockman, what do you do for a living? 22 A. I'm a professor of modern Middle East history at New York 23 University. And I'm chair of the department of Middle Eastern 24 and Islamic studies. 25 MR. TIGAR: Excuse me, your Honor, may I ask that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8849 4BFESAT2 Lockman - direct 1 witness put the microphone in front of him. 2 THE COURT: Yes, if you would -- 3 THE WITNESS: Is that better? 4 THE COURT: But if you could pull your chair towards 5 the microphone and speak directly into the microphone. 6 THE WITNESS: Sure. 7 THE COURT: And, Mr. Stern, if you could also keep 8 your voice up. Thank you. 9 BY MR. STERN: 10 Q. Could you tell us something about your educational 11 background. 12 A. Sure. I have my BA in Near Eastern studies from Princeton 13 University and MA and PhD in Middle East history from Harvard 14 University. 15 MR. TIGAR: Excuse me, your Honor. I didn't hear the 16 first answer. I'm awfully sorry. 17 THE COURT: All right. 18 A. I'll try again. 19 Q. We should shout at each other. 20 A. All right. 21 THE COURT: Hold on just a moment, please. Do you 22 have the first answer on the -- 23 MR. TIGAR: Yes, your Honor. 24 THE COURT: All right. 25 MR. RUHNKE: Your Honor, we're not entirely sure the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8850 4BFESAT2 Lockman - direct 1 jury heard it. We saw hands go up. 2 THE COURT: Yes. All right. If the jury didn't hear 3 it -- the first question was Professor Lockman, what do you do 4 for a living? 5 THE WITNESS: I -- I teach modern Middle East history 6 at New York University, and I'm chair of the department of 7 Middle Eastern and Islamic studies at New York University. 8 BY MR. STERN: 9 Q. And the second question was, could you tell us about your 10 educational background. 11 A. Sure. I have a BA in Near Eastern studies from Princeton 12 University and an MA and PhD from Harvard University, also in 13 Middle Eastern studies. 14 Q. What year did you get your PhD from Harvard? 15 A. 1983. 16 Q. And after you got your PhD, what did you do for a living? 17 A. I taught at New York University for a year, then I returned 18 to Harvard and taught there for eight or nine years. I taught 19 at Northeastern University in Boston for a year, and since 1995 20 I've been teaching at NYU. 21 Q. Have you received any fellowships and/or awards during your 22 academic career? 23 A. I have re