1 June 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 57 of the trial, May 31, 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
6814
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 May 31, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
6815
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6 FREDRICK H. COHN
DAVID P. BAUGH
7 LAURA GASIOROWSKI
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
8
DAVID STERN
9 DAVID RUHNKE
Attorneys for defendant Khalfan Khamis Mohamed
10
11 (In open court; jury not present)
12 THE COURT: Wednesday we will adjourn at 3 o'clock.
13 The question is whether we should sit a week from tomorrow.
14 Is there any possibility the jury will be deliberating?
15 MR. COHN: I think it's fair, but I think it's
16 remote.
17 MR. FITZGERALD: I think it's less remote but we can
18 discuss that later. I think perhaps one thing we may need to
19 do is to have a conference tomorrow to discuss some of the
20 discovery we did receive.
21 THE COURT: I'm not available for conference
22 tomorrow. We can have a conference today.
23 MR. COHN: We had some thought we were going to take
24 the 11th off no matter what. I seem to have a recollection
25 that had come up.
6816
1 THE COURT: I don't recall that.
2 MR. COHN: Well, if you don't, then it didn't happen.
3 THE COURT: I'm available if anyone would like today.
4 I'm not available tomorrow.
5 MR. FITZGERALD: Just so your Honor knows for
6 scheduling purposes in getting ready for today we have not had
7 a chance to completely review all the discovery material but
8 much of which we have seen appears to be objectionable. So my
9 concern is I don't want too tie up Monday at sidebars with the
10 jury, but, that having been said, we fully expect to rest
11 today.
12 THE COURT: You expect to rest today. All right.
13 We'll leave it the way it is in terms of the scheduling. Do
14 you want to schedule a conference for 9 a.m. on Monday?
15 MR. FITZGERALD: Yes, Judge.
16 THE COURT: 9 a.m. on Monday. Mr. Reporter, will you
17 make sure that is noted. I should explain to our visitors
18 that the jury is at a different part of the building and that
19 is what occasions a delay in their arriving in the courtroom.
20 (Pause)
21 (Continued on next page)
22
23
24
25
6817
1 (Jury present)
2 THE COURT: Good morning. The government may call
3 its next witness.
4 MR. FITZGERALD: Yes, your Honor I believe Mr. Brady
5 will be escorting Mordecai Thomas Onuno back to the stand.
6 THE COURT: The witness who was on the stand when we
7 adjourned yesterday.
8 MORDECAI THOMAS ONUNO,
9 called as a witness by the government,
10 having been duly sworn, resumed:
11 THE COURT: Mr. Onuno, the Court reminds you you're
12 still under oath.
13 DIRECT EXAMINATION
14 BY MR. FITZGERALD:
15 Q Good morning, sir.
16 A Good morning.
17 Q And if I can just ask you to keep your voice up just a
18 little bit more. Yesterday when we broke for the day you were
19 telling us about your wife Lucy Grace Onuno. And we can place
20 the picture on the screen. I'd like you to tell the jury what
21 role your wife Lucy played in her village?
22 A Lucy was a very committed member of our village to our
23 clan and the community as a whole. She was involved in
24 various development projects. She was a member of various
25 committees. One of the committees in our family she was
6818
1 organizing resources for education for our children, for our
2 relatives, and through her efforts she managed to facilitate a
3 lot of programs for our children and for our relatives.
4 In the larger community she was in the committee that
5 organized funds through what we call a ram base, to bring in
6 electric power to the village where we come from. She was a
7 member of the mother's union of our church. She was a member
8 of the board of governors of local schools.
9 Q Can you tell us how you and your wife and family would
10 spend weekends together?
11 A We were a very closely knit family and every weekend after
12 wake up of course we had our prayers, had our breakfast, and
13 in the morning generally Lucy was in the house, I would go out
14 into town. In the afternoon would come back, take her to the
15 market. After the market, I would go visiting friends or
16 alternatively would go out to a club with the children.
17 On Sundays after breakfast at about 10 o'clock we'd
18 go to church together with the family, and in the church we
19 had a specific place where we were sitting of Sunday. Our
20 friends knew where to look for us every Sunday in the church
21 and when we came out they knew where to get us. In the
22 afternoon in most cases we stayed in the house.
23 Q Let me take you to the day of August 7, 1998. Can you
24 tell the jury what happened that day?
25 A On the 7th as usual we woke up, had our breakfast, had our
6819
1 prayers, went into the car. We had two children to drop at
2 the roadside to take the bus to school. I drove Lucy ten
3 kilometers into the city to the American Embassy compound.
4 She -- I said -- she opened the door of the car. I said bye
5 to her for the day and she said bye. She never look at me,
6 and walk into the American Embassy. I saw her walk into the
7 embassy, and I left satisfied that she was going to a very
8 secure place. So I drove 16 kilometers to go to my office
9 quite satisfied that she was safe.
10 Q How was she dressed that day?
11 A She had what we call Katangi. It's a print that is quite
12 distinctive. It's an African print. It's of African make.
13 Q Was that a print dress she was wearing that day?
14 A Yes.
15 Q The print was on her dress?
16 A Yes.
17 Q Now, did there come a time when you learned that there had
18 been a bombing that day?
19 A Yes. About 11 o'clock someone called me to tell me that
20 there was an explosion at the cooperative building,
21 cooperative house building, and at that time there was a
22 teacher's strike. So we thought maybe some of the teachers
23 were causing some commotion. So we, I didn't take it
24 seriously.
25 At about 12 o'clock someone else called me and told
6820
1 me he was in the vicinity of the place and he has seen the
2 American embassy building and according to his assessment the
3 damage was very severe and there was a possibility that those
4 who were in there could have been injured. Then I started
5 getting concerned, calling the house, calling my relatives.
6 And so we agreed that I should stay in the office so
7 that I could monitor what was going on. At about 3 o'clock my
8 children started calling me, but I had no answer. I didn't
9 know where their mother was. Then at about 4 o'clock we had
10 been talking to various relatives, friends, we agreed that we
11 could start hunting for her. So we divided ourselves into
12 three groups to go to various hospitals in the city, so we did
13 this after up to about midnight.
14 So we congregated in our office in the city center.
15 We agreed that we go and rest and then the next day at 6
16 o'clock we meet again in town. 6 o'clock we met. We again
17 divided ourselves into three groups. We went to various
18 hospitals in the city, nothing. We didn't find her.
19 At midday we again decided that now we had to go into
20 the surrounding hospitals that's in the surrounding of the
21 city. By 6 o'clock there was nothing. At about 7 o'clock we
22 decided to walk to the American Embassy and we managed to look
23 close enough to see the building and I saw, and I saw the
24 window where her office used to be. From then I saw there was
25 no chance of her living unless she was not in that office that
6821
1 morning. So we called off the hunt for that day and we agreed
2 the next day we now go and check for her body in the morgues
3 wherever.
4 So the first thing was Sunday morning, 9th of August,
5 which was very important date for me, because that was our
6 wedding anniversary. With the group of about ten people we
7 decided to go to the American embassy warehouse. They had
8 converted some food containers into cold storage for some of
9 the bodies.
10 When we arrived there we at the gate there was a
11 notice, and there was a message saying Lucy Onuno reported
12 dead but missing. Well, I still had hope because I thought
13 that is not the way the message should have been written. So
14 I went to see the person in charge, so that I tell him you
15 ought to say she's dead or say she's missing. But you cannot
16 say she's dead and you don't have the body.
17 So I went into the compound. Then someone said,
18 there was a body which was brought here last night, and could
19 not be identified. I said let me look at the body. So I was
20 led into that cold storage and the keeper led me to where the
21 body was. He rolled off the blanket and I could see
22 distinctly see that that was the dress that Lucy wore that
23 day. I look at it, looked at her fingers, saw our wedding
24 ring. I took it, put it on my fingers. Then I wanted to look
25 at her face. I tried to hold her head to look at her face.
6822
1 There was no face. The skull had been crushed. There was no
2 face. Only some hanging skin. I felt angry because this sort
3 of very peaceful past should not have died violently.
4 I felt angry because Lucy and I had five children.
5 She was committed to these children. She wanted to see them
6 grow into adulthood. There is nobody now to coach her into
7 adulthood. I had to be the father and the mother. So I felt
8 real angry.
9 So I then was led out and I came out, I had about 20
10 people with me. I just shouted, they have crushed her head.
11 So there was a bit of commotion, because the people who I was
12 with these are the people she sent to school. This is the
13 people she brought electricity to their village. And they
14 loved her so they were angry.
15 So the next thing was how to face my children, my
16 three children, and to tell them that their mother was so
17 dead. So we went back to the house and of course as usual the
18 children thought I was a great person who could protect their
19 mother. They expected me to come back with the mother, but
20 she wasn't there. I didn't have to tell them because the
21 twenty people who were with me were crying and also crying.
22 So I asked someone to call my children. One was there so they
23 were called so that was the end of the hunt, and the beginning
24 of preparation for the funeral and preparation for a new life.
25 Q Can you tell us what life has been like for you and your
6823
1 family since that time?
2 A As I said we were well-linked family, very close,
3 committed to each other, committed to the welfare of the
4 family. First, me, personally, since then I feel inadequate
5 even where I work. I used to be a very good worker. We have
6 a system of appraisal every year where you are called out of
7 twenty. I always got 17 of 20 in the past. After Lucy's
8 death I got a 10.5.
9 Since then I've not improved because I do not enjoy
10 my work any more. I like to sit and think blankly. So I'm
11 not performing well where I work. I feel inadequate because I
12 find it difficult to visit my friends. I feel inadequate when
13 I go to church, and where we used to sit, I'm alone. So my
14 life has changed. I simply most of the time come back from
15 work, go into my bedroom and lie on my back. Weekends I
16 hardly go places.
17 My children, my first daughter had just graduated in
18 1998. She was supposed to go to law school. She has refused.
19 She says she's angry. She has not got much. My daughter at
20 that time, another the third daughter at that time, second
21 daughter at that time she was going to she in grade eight.
22 She was a bright girl. She was supposed -- she was doing her
23 examination at the end of the year. She just passed. She
24 didn't pass as well as we thought she would. Since then she's
25 moody. She is, she does not participate on what's going on in
6824
1 the house. She has trouble with teachers, too. Just before I
2 came she has trouble with her teachers. She called the
3 teacher a lawyer. That's not her. It's because of what
4 happened.
5 My little girl is scared. She was seven years.
6 She's ten. Where I work I can travel any time because in the
7 audit and our company has offices all over the world. Since
8 1978 I cannot travel because she's scared. She's scared. She
9 say she cannot sleep. I have to be there. Even this time
10 when I was coming she cried and asked me why I should come.
11 But I told her it was important that I come. She said she
12 couldn't sleep in my absence. So I had to take her to some
13 other relatives. So she's scared. So I have three people in
14 my family who are still traumatized.
15 Q Do you still carry Lucy's wedding ring with you
16 everywhere?
17 A Yes. I still have it since that night.
18 Q Is there something else you carry with you everywhere you
19 go?
20 A As I said, 9th of August is our wedding day. We wedded in
21 9th August, 1975. So by the time Lucy died is just about 23
22 years. So on the 6th of August I rushed into town and bought
23 a card for her. Well, it's as if God was telling me she was
24 going to die because I had the decided to buy this card. It's
25 only later that I find that the card was quite an important
6825
1 communication to Lucy, because on the card the printed message
2 I wrote my own message. I have that card here.
3 So on the top is written, anniversary wishes for my
4 wife. Inside the card I added the following message: To Mama
5 Laura. Laura is her first born and Mama means mother. My
6 wife to Mama Laura, my wife, my love, my best friend always.
7 That's the message I added.
8 The preprinted message was: I give you my love today
9 and everyday. Then I added: Thank you for everything Baba
10 Laura, means father of Laura. So by hindsight when Lucy died
11 then I felt satisfied that I had told her that I loved her and
12 I believe that she went to her grave satisfied that I loved
13 her.
14 MR. FITZGERALD: Thank you for coming. There are no
15 further questions.
16 THE COURT: Thank you, sir. You may step down.
17 (Witness excused)
18 MR. GARCIA: Government calls Teresia Karanja.
19 TERESIA RUNGU,
20 called as a witness by the government,
21 having been duly sworn, testified through the interpreter,
22 as follows:
23 DIRECT EXAMINATION
24 BY MR. GARCIA:
25 Q Ms. Rungu, was your husband killed in the bombing on
6826
1 August 7, 1998?
2 A Yes, he died that day.
3 Q And what was his name?
4 A Peter Rungu.
5 Q And how old was he when he died?
6 A 44.
7 Q Did you also have a daughter who was killed in the bombing
8 that day?
9 A Yes.
10 Q How old was she when she died?
11 A 20 years old.
12 Q Was her name Ruth Rungu?
13 A Yes, Ruth Rungu.
14 Q Was Ruth a student at the secretarial school at Ufundi
15 House?
16 A Yes, she was going to school at the Unfundi.
17 Q Was August 7th her first day of school?
18 A Yes.
19 Q Did her father go with her that morning, August 7th, to
20 school at Ufundi?
21 A Yes.
22 Q Tell us why they were going?
23 A That day my husband took her to go to the school that he
24 can pay the tuition for her.
25 Q Were you also planning on going with them?
6827
1 A Yes, I supposed to go with them.
2 Q What happened?
3 A I was late a little bit so he told me I could find him
4 over there.
5 Q After you heard about the bombing did you go to the
6 location of the Ufundi House?
7 A Yes, I went there.
8 Q And what did you see when you got there?
9 A I saw the house was flat and I start crying.
10 Q Could you explain for the jury what the impact has been on
11 your family from the loss of your daughter and your husband?
12 THE INTERPRETER: You like him to explain the whole
13 how his life?
14 Q Why don't we first talk about what your life has been like
15 and the life of your family since the loss of your husband and
16 your daughter?
17 A My life and of my children, my life is so bad. My life
18 has been changed. The time I had with my husband and my
19 daughter and with my family was totally different at this
20 time. He was my father and also he was my mother. He is the
21 one who bring me up. Since then I've been having a lot of
22 problems. I've been having a lot of high blood pressure.
23 Even today I have high blood pressure.
24 There is a lot of memory which we have together has
25 been lost. Since then we've been poor with my children.
6828
1 There was going to school. The education was expecting them
2 to get. They are not getting it. He is the one who was
3 helping the kids to go for the homework. I don't know how to
4 read. I don't know what do with them. I don't know what to
5 help my kids.
6 Right now we don't know what is in front of us what
7 is behind of us. Our life is so difficult. Even sometime
8 when he is like me, I'm the one who caused my husband died.
9 Right now I don't have any friend who is close to me. Last
10 night I don't sleep. I just ask myself why this happened to
11 me.
12 My kids they asking me what their life is going to
13 be. I have a problem. All the document which we have
14 together I don't know, even I can't, I don't know where it is
15 and I can't even read. My kids want to go to school but I
16 have no energy, I have no strength of financial to help them.
17 My father-in-law also is crying all the time. We
18 don't have any help. There are so many thing have to be paid,
19 the rent, I don't know what to do. And sometime the landlord
20 want us to get out, but sometime come nice to us. I lost my
21 husband. I really don't know what I'm going to do. So often
22 I'm thinking to kill myself, because my life is so difficult.
23 MR. GARCIA: Thank you, Ms. Rungu. Your Honor, the
24 only other thing I'd like to do is offer and display
25 Government Exhibits 2197 and 2198.
6829
1 THE COURT: Yes. You may do so.
2 (Government's Exhibit 2197 and 2198 received in
3 evidence)
4 Q Ms. Rungu, are those photographs of your husband and your
5 daughter?
6 A Yes, they're them.
7 MR. GARCIA: Thank you. I have nothing further,
8 Judge.
9 THE COURT: Thank you, ma'am. You may step down.
10 (Witness excused)
11 MR. FITZGERALD: The government next calls Geoffrey
12 Manguriu.
13 GEOFFREY MANGURIU,
14 called as a witness by the government,
15 having been duly sworn, testified as follows:
16 DIRECT EXAMINATION
17 BY MR. FITZGERALD:
18 Q Good morning, sir.
19 A Good morning.
20 Q If you could just keep your voice up just a little bit
21 more?
22 A Okay.
23 Q If you sit a little closer to the microphone it's easier.
24 A Okay.
25 Q Can you tell the jury what you do for a living?
6830
1 A Sorry.
2 Q Can you tell the jury what you do for work?
3 A I'm a civil structure engineer. I lecture at university.
4 Q Can you tell the -- did you lose your daughter in the
5 bombing of the embassy in August 7, 1998?
6 A Yes, I did. I lost my second born daughter.
7 Q And can you tell the jury her name?
8 A Joyce Manguriu.
9 Q And can you tell the jury how old Joyce was as of August
10 1998?
11 A She was about 20 years old.
12 MR. FITZGERALD: Your Honor, at this time I would
13 offer Government Exhibit 2140, a photograph and ask to display
14 it.
15 THE COURT: You may.
16 (Government's Exhibit 2140 received in evidence)
17 Q Sir, on the screen on your left is that a picture of
18 Joyce?
19 A Yes.
20 Q Can you tell the jury when that photograph was taken?
21 A About a month before she died.
22 Q Can you tell the jury why that picture was taken?
23 A She was supposed to travel to take a course.
24 Q Was she supposed to come to America to go to school?
25 A Yes. She was supposed to join with.
6831
1 Q Can you describe Joyce as a person?
2 A She was a very nice person, a very devoted Christian.
3 Q How would you describe your relationship with her?
4 A She was not only my daughter but a very, very close friend
5 of mine, so that any time that I came late she'd always be
6 sitting there waiting for me.
7 Q And can you tell the jury about the relationship Joyce had
8 with your son?
9 A Very close. So close that he used to spend most of his
10 time in our bedroom.
11 Q What was the difference in age between Joyce and her
12 brother?
13 A About two years.
14 Q Can you tell the jury why Joyce was at the Ufundi House on
15 August 7, 1998?
16 A She decided that she wanted to do two weeks of shorthand
17 training before she came here, and she went to Ufundi on that
18 day and she died on Friday morning.
19 Q Sir, I won't ask you about August 7th. I just want you to
20 tell the jury what life has been like for you and your family
21 since the time that you lost Joyce?
22 A It has never been the same again. My wife, that is her
23 mother, cannot sleep. She always sits down. My first born
24 who is in London doing a law degree, continuously writes
25 letters. Sometimes she post them at home to Joyce, and we
6832
1 keep on receiving the letters she writes to her sister.
2 Q And your daughter that writes letters to Joyce, how old is
3 she?
4 A Sorry.
5 Q How old is your daughter in London who is writing the
6 letters to her sister?
7 A She's now about 25.
8 Q And how has your son coped with the loss of Joyce?
9 A He became very withdrawn. He's now a second year at
10 university where I lecture, and doesn't talk much, just spends
11 most of the days in the house, just from college and in the
12 house. He doesn't go anywhere.
13 Q And can you just tell us how you are coping with the loss?
14 A Sorry?
15 Q How are you coping with the loss of Joyce?
16 A Just keep on praying that she will be okay wherever she
17 is.
18 MR. FITZGERALD: Thank you for coming, sir. Nothing
19 further.
20 THE COURT: Thank you, sir. You may step down.
21 (Witness excused)
22 MR. GARCIA: The government calls Leah Kahuthu.
23 LEAH KAHUTHU,
24 called as a witness by the government,
25 having been duly sworn, testified as follows:
6833
1 DIRECT EXAMINATION
2 BY MR. GARCIA:
3 Q Good morning.
4 A Good morning.
5 Q If you could just speak a little bit, keep your voice up a
6 bit and stay a little bit closer to the microphone.
7 Ma'am, did you lose your husband in the August 7th
8 bombing of the Nairobi embassy?
9 A Yes, I did.
10 Q And what was his name?
11 A John Kahuthu.
12 Q How old was John when he died?
13 A He was 59.
14 Q How long had you been married?
15 A 29 good years.
16 Q And did you have children?
17 A Yes, we have.
18 Q How many?
19 A Three children.
20 Q Where did John work?
21 A Pardon?
22 Q Where did your husband work?
23 A He was working in Ufundi House.
24 Q In the Ufundi House?
25 A Yes.
6834
1 MR. GARCIA: If we could offer and display Government
2 Exhibit 2042, your Honor?
3 THE COURT: Yes.
4 (Government's Exhibit 2042 received in evidence)
5 Q Ma'am, is that a photo of your husband?
6 A Pardon?
7 Q Is that a photograph of your husband?
8 A Yes, that's John.
9 Q Could you tell us something about John, describe him for
10 us?
11 A John was a loving husband, very hard working who lived for
12 me and his family, who was very kind, generous and he really
13 lived for us. We loved him so much. He loved us, too. He
14 was working everyday for us. He was bread winner for the
15 family and who used to live with us. We lost John and his
16 business together.
17 Q I won't ask you about the events of August 7th, but could
18 you tell us what the impact of the loss of your husband has
19 been on you and on your family?
20 A Life has been difficult. I was working then, but I have
21 since retired, and I'm not on any pension, and since we
22 depended on him wholly, we have now to live from hand to
23 mouth, and whatever we are living in any way we can not do
24 what he used to do for us. The resources are negligible I
25 would say. But life has to continue. Unfortunately we look
6835
1 for a way to keep us going, but had has been hard.
2 MR. GARCIA: Thank you, ma'am. I have nothing
3 further, Judge.
4 THE COURT: Thank you, ma'am. You may step down.
5 (Witness excused)
6 MR. FITZGERALD: The government next calls Paul
7 Ngugi.
8 PAUL NGUGI,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:Sworn) yes)
11 DIRECT EXAMINATION
12 BY MR. FITZGERALD:
13 Q Good morning, sir. Will you state your name for the
14 record?
15 A My full name is Paul Macharia Ngugi.
16 Q Could you spell your last name for the record and if you
17 could just keep your voice up a little more or sit a little
18 closer to the microphone?
19 A My last name is N-G-U-G-I.
20 Q Now, sir, did you lose your brother in the bombing of
21 August 7, 1998?
22 A Yes, I did lose my older brother.
23 Q Can you tell the jury your brother's name?
24 A My brother's name's Peter Macharia Ngugi.
25 Q And how much older than you was your brother, Peter?
6836
1 A By one year.
2 Q How many children, how many brothers and sisters are in
3 your family?
4 A We are supposed to be nine, but my brother's dead, so we
5 are eight.
6 MR. FITZGERALD: Your Honor, I would offer Government
7 Exhibit 2143 and ask to display it briefly.
8 THE COURT: Yes.
9 (Government's Exhibit 2143 received in evidence.
10 Q If I can ask you Mr. Ngugi, just to look at the picture
11 and tell us if that is your brother Peter?
12 A It is my elder brother, Peter.
13 Q And can you describe your relationship with your older
14 brother Peter and what he was like as a person?
15 A My elder brother Peter was a loving brother. He is the
16 one who was taking care of the whole family. My brother Peter
17 really wanted the family to be self sufficient in everything.
18 I can remember my brother Peter doing the very best schools in
19 Kenya, and after he refused to join the university for the
20 sake of the family. He said it was better look for a job, so
21 that he could educate us. He is the one who educated me and
22 my other brothers who are behind me.
23 Q Can you tell us who Grace and Diana are?
24 A Grace is my other brother Peter's wife and Diana is the
25 daughter.
6837
1 Q I'm not going to ask you about the events of August 7,
2 1998. But can you tell the jury what the impact of losing
3 Peter has been on you and the rest of your family?
4 A Pardon?
5 Q What has life been like for you and your family after
6 Peter's death?
7 A I can't say really my life, all the life of the full
8 family, there was nobody else in our family who was in
9 employment, and my brother is the one who was taking care of
10 everybody, including my unemployed parents. My parents are
11 persons, and now he's supporting everybody in the family. My
12 younger brothers who wanted to join the work force, and
13 including myself, didn't join it, and they are out there
14 looking for jobs which they can't get, because of the loss of
15 our brother Peter.
16 Q What emotional impact has the loss of your brother Peter
17 had on your mother?
18 A Well, I really don't have words to explain that because
19 it's too much. My parents, especially my mom, keeps
20 remembering about Peter and he tells us pray for him because
21 we did not know why it ever happened that he died, you know.
22 He didn't die because of the natural death. And he wants to
23 say on what and why I was killed. So he keeps on praying for
24 Peter and the whole family because Peter was the one to be and
25 was the leader of the whole family.
6838
1 Q If you could just tell us what the emotional impact has
2 been on you to lose your brother?
3 A Well, at times when I'm there, when I'm, when I'm out
4 there in the street walking when I see a friend or anybody in
5 the street really who look like my brother, I say, okay, could
6 that be my brother Peter walking in front of me? Then all of
7 a sudden I say, oh, it cannot be the one. I know he died.
8 But it's hard for me to believe this. I've never believed
9 he's actually dead even up until now.
10 MR. FITZGERALD: Thank you for coming here today,
11 sir. Nothing further.
12 THE COURT: Thank you, sir. You may step down.
13 (Witness excused)
14 MR. GARCIA: The government calls Rebecca Chumi.
15 REBECCA CHUMI,
16 called as a witness by the government,
17 having been duly sworn, testified
18 through the interpreter, as follows:
19 DIRECT EXAMINATION
20 BY MR. GARCIA:
21 Q Good morning. How old are you, ma'am?
22 A 23.
23 Q Do you have a family? Are you married?
24 A Yes, I'm married.
25 Q And do you have any children?
6839
1 A Yes, I have one child.
2 Q How old is that child?
3 A Three years old.
4 Q On August, the morning of August 7, 1998 where were you
5 when the bomb exploded at the US Embassy?
6 A I was inside the bus. I was going to the town.
7 Q And where was the bus when the bomb went off?
8 A It was between cooperative building and the American
9 Embassy.
10 Q And can you tell us what you remember about the bomb blast
11 going off?
12 A I saw a car which was someone was driving on the sidewalk.
13 I look outside and I saw was like a truck, small truck and I
14 saw one inside who conduct the small truck with a pistol
15 outside and shooting the air.
16 Then I was told by the conductor to lay down inside
17 the bus. Then I was down and I realize myself I should have
18 been getting out of the bus because I saw other people running
19 out of the bus.
20 By the time I was trying to get out of the bus I saw
21 the big, I heard a big explosion on the side where this truck
22 was and so many pieces was coming on my face. Then I fall
23 down and I couldn't see it again. I touch my face and I saw
24 was so many bloods and I keep crying and calling people to
25 help me. I raise my hand for people to help me and I ask
6840
1 these people, I'll be able to see it again. And they told me,
2 don't worry, you want to see it again.
3 And I was taken to the car which I don't know what
4 kind of car, because I was unable to see it, and I don't know
5 which hospital they took me to at the time.
6 They took me to the hospital. They asked me what is
7 your name. And they asked me, you know where you are? I say
8 I didn't know because I can't see. The time I get to the
9 hospital they wash my face. I was so much on pain they just
10 say keep, be strong and they will keep washing my face and
11 they give me injection.
12 I was taken to the operation room which I was not
13 have any about it and later on night I get some conscious. I
14 was taken to the ward and the next day I was out. And the
15 following day I was in so much pain I asked for the doctor to
16 come to clean my face, and that's the time the doctor told me
17 that, don't touch your face because you have a lot of stitches
18 in your face.
19 And I asked the doctor I'll be able to see it again.
20 And the doctor told me because you have a bandage on your
21 face, you wait, another doctor will come to see it.
22 My family member didn't know it. Then I first send
23 the message around 2 o'clock. They came to see me. That time
24 they came I couldn't see anything. And the doctor came and
25 they took the bandage off my face and they ask, can you see
6841
1 me? I say no. And he's trying to show me by the finger. I
2 saw one finger. I said that on one eye I can see the finger.
3 He said what, about the other one? I said, I can't see you at
4 all.
5 At that time I was in the hospital I was having a lot
6 of pain and I was taken to x-ray. And the x-ray came out they
7 found out there's a lot of pieces of glasses on my lungs. And
8 I asked how these pieces came to me. He says, you have a big
9 cut here in the front so that pieces went through your, went
10 to the lungs. I was in the hospital for two months and one
11 month and two weeks, and I was given time to go home.
12 And then I stayed at home for two days and I was went
13 back again to the hospital, I was so much in pain, and they
14 did x-ray again and they say that I have acids. And they
15 told, my acids they told me caused by a lot of anger and the
16 way I was thinking so much. But my case so I have the acid.
17 At that time I went to the hospital. The doctor of my eyes he
18 came on to check on me and they told me one of the eyes is
19 completely damaged and they took out the eye.
20 And I was told that another eye they can't do
21 anything about it because inside is a piece of glass so if
22 they do operation will be completely damaged. So keep it as
23 it is.
24 Then I was sent to the clinic for my eyes and for
25 acids and for the chest. Then I was taken home. Then I went
6842
1 home. I was so much on pain, and I went back to the hospital
2 and I asked to have a lot of pain of the chest. The doctor
3 said we can't do anything about it because there are so many
4 pieces in your inside your lung if we do operation we may
5 damage more than what we should.
6 I have a chest problem a lot because I go home, I go
7 to the hospital back and forth and all the time. There's
8 nothing they can do. Only I can get is to go home and go back
9 to the hospital. I can't see proper. If it's dark a little
10 bit dark I can't even walk outside. If it's too sun I can't
11 walk outside. I'm having the problem my eyes even to read. I
12 can't even read with one eye.
13 I was a farm. I was farming and taking to the market
14 to sell the food that I can feed myself and my kids and my
15 parents. Now I can't even farm. I was doing farming for my
16 father and we was helping each other a lot with my father, but
17 right now I can't even help. He's trying to do by himself but
18 help him there, but it's so difficult.
19 (Continued on next page)
20
21
22
23
24
25
6843
1 Q Have your injuries also had an impact on your ability to
2 care for your daughter?
3 A Yes. I can't take care of my son because even to pick her
4 up I can't do that. I can't even take her to school. I can't
5 take her to the hospital. I can't afford anything. I don't
6 have the ability to take her to the school. Even to cook, I
7 am having difficulty to cook sometimes for her. Sometimes I
8 have to call my neighbor to help me to cook for her. Even to
9 wash her I can't do that because I can't touch the cold water
10 because of my chest pain. Because if I touch any cold water,
11 I get so much pain, I have to go back to the hospital. And
12 another problem, if I go back to the hospital, I leave her
13 with my neighbor, which is another problem.
14 MR. GARCIA: Thank you very much. Thank you for
15 coming. I have nothing further.
16 THE COURT: Thank you. You may step down.
17 (Witness excused)
18 MR. FITZGERALD: The government calls Howard Kavaler,
19 K-A-V-A-L-E-R.
20 HOWARD KAVALER,
21 called as a witness by the government,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. FITZGERALD:
25 Q Good morning, Mr. Kavaler.
6844
1 A Good morning.
2 Q Can you tell the jury how many years you have worked for
3 the State Department?
4 A I have been to with the State Department since June 16,
5 1975.
6 Q Can you tell the jury your wife's name and what she was
7 like as a person.
8 A My wife's name was Prabhi. Two years nine months and 24
9 days ago I lost the love of my life. She was my wife for 16
10 years and she was my friend for four years before we married.
11 She was my life's companion.
12 MR. FITZGERALD: Your Honor, I would offer
13 Government's Exhibit 2054A and 2054B and ask to display
14 Government's Exhibit 2054A at this time.
15 THE COURT: Yes.
16 (Government Exhibits 2054A and 2054B received in
17 evidence)
18 Q Sir, if you could approach the microphone before you and
19 tell the jury, who is depicted in that paragraph?
20 A My daughter Tara is here in the middle, wearing the Snoopy
21 shirt. My wife Prabhi is holding her.
22 Q Can you tell us when and where this picture was taken.
23 A This was taken in approximately 1990, in Wolf Trap,
24 Virginia.
25 Q You mentioned one daughter. How many daughters do you
6845
1 have?
2 A I have a second daughter, Maia, who is in the courtroom
3 today.
4 Q Why did your daughters come to the courtroom?
5 A My older daughter Tara thought it was very important for
6 her to make a stand and represent her mother in this
7 proceeding. She thought it was very important for her to see
8 that justice was done, not only for her but for her mother.
9 Q It was her choice?
10 A It certainly was.
11 Q Government's Exhibit 2054B, if we could display that.
12 Obviously that is your wife, and if you could tell us which
13 daughter is Tara and which is Maia.
14 A Tara is in the middle and Maia is the bottom girl.
15 Q Can you tell the jury about the relationship between your
16 wife Prabhi and her daughters?
17 A Prabhi was a naturalized American, and for her becoming an
18 American was probably one of the proudest days of her life.
19 She was a dedicated government worker. She worked for the
20 State Department for 20 years and 22 days. However, she was a
21 mother first and she absolutely adored her daughters. She
22 would never miss an event that the girls participated in. She
23 was very proud. I remember, on July 25, 1997, my older
24 daughter Tara sang the Star Spangled Banner at a minor league
25 baseball name in Springfield, Virginia, and that brought a
6846
1 great deal of pride and joy to her. Maia was her energetic
2 daughter, and she would go to her soccer games. I remember we
3 took off from work and went to her last birthday party that
4 she celebrated with her daughter. This was on April 20, 1998,
5 months before we went to Nairobi.
6 Q Let me direct your attention to the date of August 7,
7 1998.
8 A Yes.
9 Q Can you tell the jury what happened that day.
10 A We had arrived in Nairobi some two and a half weeks prior
11 to that date, and at about 10:15 that morning I went to my
12 wife's office, the General Services Office, to discuss what we
13 were going to do for lunch. At that point she admonished me
14 for not ascertaining when our girls would be picked up from
15 school. The International School where they were matriculated
16 was beginning classes on the 10th of August, which was three
17 days hence. We were in temporary quarters. We did not know
18 where or when the girls would be picked up. There was an
19 office in the embassy, the community liaison office, which
20 would possibly have that information. She told me she was too
21 busy to get that information. In fact, she was sick the day
22 prior to the bombing. She had taken sick leave. In fact, I
23 had asked her not to come to work that morning because she was
24 sick. But because her position had been uncovered for six
25 months prior to our embassy, there was a lot of work to be
6847
1 done and she said she had to clear up her in box. So at 10:15
2 she said to me find out prior to lunch when the girls are
3 going to get picked up on the 10th of August.
4 I thereupon left her -- last time I saw her -- I went
5 to my office. I saved an e-mail I was sending to the State
6 Department. I went around the corner to the front of the
7 embassy and went to the community liaison office and
8 introduced myself to the woman in the office, at which point I
9 heard a very loud noise on the ceiling. Some 10 seconds later
10 I heard a very loud explosion and the building essentially
11 fell on top of me. I made my way outside the embassy to the
12 front of the chancery, and I looked for Prabhi. I didn't find
13 her. Then I went to the side of the embassy towards Selassie
14 Avenue. I didn't find her there either. I saw a vehicle
15 which was on fire. I went back to the front of the embassy,
16 trying to get back in, and there were security people
17 preventing people from returning. I went to the
18 administrative consular who is a very close friend of ours,
19 Steven Nolan, and I said Steve, I have to get back in to find
20 Prabhi. I rushed back into the embassy. I went to where her
21 office was. I never found her. Her office was -- there was a
22 great deal of rubble, a lot of debris. I never found her. I
23 heard a woman, I didn't know where she was but I heard a woman
24 crying out for help, and I couldn't help her either because I
25 didn't know where she was. When I realized that Prabhi wasn't
6848
1 where she should have been, I went back outside, hoping that
2 somehow she had made her way out to the front of the embassy.
3 She wasn't there.
4 MR. FITZGERALD: Your Honor, at this time I would
5 offer Government's Exhibit 2271, another photograph, and ask
6 to display it.
7 THE COURT: Yes.
8 (Government Exhibit 2271 received in evidence)
9 Q Mr. Kavaler, can you tell us what is depicted in that
10 photograph.
11 A That is a picture of me after I had returned from my
12 search of Prabhi's offices. I am being held by June
13 O'Connell, who was the vice consul in the embassy.
14 Q Did there come a time when you realized that Prabhi had
15 been killed?
16 A I learned officially the next day that her body had been
17 recovered.
18 Q How did you tell your children?
19 A After about an hour or so, I was given a lift back to my
20 residence. However, prior to going home I stopped off and
21 picked up a very close friend of mine whose husband is Steve
22 Nolan, and I said to Julie Nolan, there is no way I am going
23 to be able to do this by myself. So I said you're going to
24 have to help me. She had just heard about the bombing on the
25 embassy radio network. So she came back with me and I went
6849
1 home, and I told the girls that their mother was killed at the
2 embassy in a bombing attack. At that point the girls broke
3 down in tears and asked me if they could see their mother
4 again, and I said no.
5 MR. FITZGERALD: Your Honor, at this time I would
6 offer Government's Exhibit 2054C, a photograph, and ask to
7 display that.
8 (Government Exhibit 2054C received in evidence)
9 A That is a picture of Tara which was taken in 1990, 1991
10 during our first tour in Kenya. We had been posted to Kenya
11 before. Prabhi had an array of photographs of the girls in
12 her office. They were specially mounted. The only thing that
13 was recovered from her office which was salvageable was this
14 photograph of Tara.
15 Q Sir, can you tell the jury what the impact has been on you
16 and Tara and Maia since the loss of Prabhi.
17 A Our lives have been turned upside down. My career in the
18 State Department is over. It's been ruined. I was hoping to
19 be promoted to the next level of foreign service. That was
20 one of the reasons why I served in Nairobi. I was the US
21 permanent representative to the UN environment program. After
22 the bombing I have taken a position in the department which is
23 not promotable. I work flex hours. I get up in the morning
24 around 4:30, I get to the office about 5:30 and work till 2,
25 after which I take the girls to their activities, to their
6850
1 counselor, to their religious school. I have had to assume a
2 lot of responsibilities which I never had envisioned I would
3 be doing.
4 It's been very stressful for all of us. My daughters
5 miss their mother dearly. Some two months ago I was with my
6 younger daughter Maia. She auditioned for a talent show and
7 she made it, at her school. The teacher told her that the
8 night of the show, tell your mother prior to the show to dress
9 you in a certain way. She had to tell her that her mother was
10 killed.
11 Q Can you just tell us the types of things that your
12 daughters need that you can no longer give them now that you
13 have lost Prabhi.
14 A I try to be a mother and a father, but it's a herculean
15 task. My older daughter is going through puberty right now.
16 It is very difficult for me, it is an impossibility for me to
17 empasize with her. I have to rely on a psychologist to get
18 her through this. When there are school field trips for my
19 little one I am the only father who goes there. All the other
20 children have their mothers. It's rather sad.
21 MR. FITZGERALD: Thank you for coming today, sir. I
22 have nothing further.
23 MR. BAUGH: No questions, your Honor.
24 THE COURT: Thank you, sir. You may step down.
25 (Witness excused)
6851
1 MR. GARCIA: Your Honor, the government calls Jane
2 Kathuka.
3 JUNE KATHUKA,
4 called as a witness by the government,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. GARCIA:
8 Q If I could just ask you to keep your voice up if you can
9 and to speak a little bit closer to the microphone.
10 Miss Kathuka, was your husband killed in the August 7
11 bombing of the U.S. Embassy?
12 A Yes.
13 Q What was his name?
14 A Geoffrey Mulu Kalio.
15 Q How old was Geoffrey when he died?
16 A Forty.
17 Q Where did Geoffrey work?
18 A In the shipping department.
19 Q In the shipping department, you said?
20 A Yes.
21 MR. GARCIA: Your Honor, may I approach for a moment?
22 THE COURT: Yes.
23 Q How long had Geoffrey been working at the U.S. Embassy?
24 A Thirteen years.
25 MR. GARCIA: Your Honor, at this time the government
6852
1 would offer and display Exhibit 2043, please.
2 THE COURT: Yes.
3 (Government Exhibit 2043 received in evidence)
4 Q Is that a photograph of your husband?
5 A Yes.
6 Q Who is in the photograph with him?
7 A Our daughter.
8 Q How old is your daughter today?
9 A Three years, eight months.
10 Q On August 7, 1998, you were working that day?
11 A Sorry.
12 Q You were working August 7?
13 A Yes.
14 Q Did you speak to your husband that morning?
15 A Yes. When he got to the office he rang me. Before I left
16 the house he asked me to go and call the office because he was
17 working late the previous night. So when he go to the office,
18 he asked me to ring his boss to inform him that he would be
19 coming late. So when he got to the office around 10:15 he
20 rang me. He asked me if I informed his boss. So I said yes.
21 He told me he will call later. After that, after a few
22 minutes then the bomb went off.
23 Q And you later learned that your husband had been killed in
24 the bombing?
25 A Yes, after I looked for him, after going around to the
6853
1 hospitals, and then we learned that he died there.
2 Q Could you just tell us a little bit about what your
3 husband was like. Could you describe him for us.
4 A How he was?
5 Q Yes.
6 A He was a responsible man. He was caring. He was a
7 husband who cared about his family, all of his family. Being
8 the first born in a family where the father wasn't there, it
9 was him all around. He would take care of everyone, his
10 father, his mother, the brothers, even us.
11 Q Can you tell us what the impact has been on your family
12 since you lost your husband.
13 A It's been too much for me. I have to do everything. I
14 have to bring up my daughter, who was left when she was only
15 11 months old. I have to make decisions. His mother is old.
16 She is over 60 years old. She can't see. I have to do that,
17 take care of her. I have to look after everything else. I
18 have to make all the decisions. It's just been too much.
19 (Continued on next page)
20
21
22
23
24
25
6854
1 MR. GARCIA: Thank you very much, ma'am. I have
2 nothing further.
3 MR. BAUGH: No questions, your Honor.
4 THE COURT: Thank you, ma'am. You may step down.
5 (Witness excused)
6 THE COURT: We will take our mid-morning break at
7 this point.
8 (Jury excused)
9 THE COURT: I am just wondering, I know the
10 government said it plans to rest today. Do you have any idea
11 what hour?
12 MR. FITZGERALD: Yes, Judge. We will certainly rest
13 today and I think we will rest before the afternoon break. I
14 believe we have seven witnesses left.
15 THE COURT: Before the lunch break?
16 MR. FITZGERALD: Yes.
17 THE COURT: Can we not deal this afternoon with the
18 discovery matters?
19 MR. FITZGERALD: Some of the pictures that we have --
20 THE COURT: Let's deal with the matters that we can
21 deal with so that we don't have any delays Monday morning. We
22 will proceed in that fashion. Also, I anticipate that
23 sometime late this afternoon you should have a draft of the
24 charge and special verdict form. We will take a 10-minute
25 recess.
6855
1 MR. FITZGERALD: Your Honor, in case I misspoke, I
2 meant that we would be completed by the afternoon break, not
3 the lunch break.
4 THE COURT: The afternoon, OK.
5 (Recess)
6 MR. FITZGERALD: Judge, in the unlikely event that we
7 were to finish before lunchtime, which I do not think will
8 happen, we will just reserve two things. There are some
9 photographs that we are not putting in through witnesses that
10 your Honor has already ruled upon and we are working on a
11 stipulation with defense counsel as to Mr. Al-'Owhali's age at
12 the time of the offense, which is both a requirement that we
13 have to prove and also a mitigating factor as to his youth. I
14 would just preserve those rights out of the presence of the
15 jury.
16 THE COURT: I am not pushing you. I just wanted to
17 know in terms of scheduling.
18 (Jury present)
19 THE COURT: The government may call its next witness.
20 MR. FITZGERALD: Thank you, Judge. The government
21 calls Lawrence Irungu Ndugire.
22 LAWRENCE IRUNGU NDUGIRE,
23 called as a witness by the government,
24 having been duly sworn, testified as follows:
25 (Continued on next page)
6856
1 DIRECT EXAMINATION
2 BY MR. FITZGERALD:
3 Q Sir, if you could state your name for the record and speak
4 toward the microphone.
5 A My name is Lawrence Ndugire.
6 Q If you could spell your last name for the record.
7 A N-D-U-G-I-R-E.
8 Q Sir, did you lose your wife in the August 7, 1998 bombing
9 of the embassy in Nairobi?
10 A Yes.
11 Q Could you tell the jury your wife's name.
12 A Rose Wanjiku Mwangi.
13 Q Could you tell us how old she was when you died?
14 A Thirty-six years.
15 Q Can you tell us how long you were married?
16 A About 16 years.
17 Q Did you have any children?
18 A Yes.
19 Q Can you tell the jury how many children you had?
20 A We had three children.
21 Q Can you tell the jury their names and how old they were at
22 the time of the bombing?
23 A The first one was about 16 years, Phillip Githuku. The
24 second one, James Mwangi, was about 14 years. The last one,
25 Diana Wangari, was about 11.
6857
1 MR. FITZGERALD: Your Honor, at this time I would
2 offer Government's Exhibit 2123A, which is a photograph that I
3 would ask to display.
4 THE COURT: Yes.
5 (Government Exhibit 2123A received in evidence)
6 Q If you could look to the left at the photograph on the TV
7 screen and I would ask if that is a photograph of your wife.
8 THE COURT: Over there, sir.
9 Q Is that a photograph of your wife?
10 A Yes.
11 Q Can you tell the jury where and when it was taken?
12 A Please.
13 Q Can you tell the jury where the picture was taken.
14 A The picture was taken at home, where I used to stay.
15 Q Can you tell us approximately what year the picture was
16 taken?
17 A Please.
18 Q Can you tell us what year the picture was taken.
19 A The picture was taken in 1991.
20 Q Can you tell the jury what your wife Roselyn Wanjiku
21 Mwangi was like as a person.
22 A As a person she used to be a person who loved her family
23 and used to work for the sake of the family. When she was
24 home the whole family was together with the children and she
25 used to, especially with the young girl, they used to always
6858
1 be together. The last one, they used to be together even when
2 they was normally together, even after to explain to the
3 children where their momma was.
4 Q Your wife, did she work in the Ufundi House?
5 A Yes, she used to work at the Ufundi House Cooperative.
6 Q Did she also work at a hair salon when she was not working
7 at the Ufundi House?
8 A Cooperative Bank.
9 Q Did she also work at a hair salon?
10 A No.
11 Q Do you call it a hair saloon?
12 A She worked their on the weekends and after work.
13 Q Can you tell us about the relationship between your wife
14 and your daughter Diana.
15 A My wife and daughter Diana used to be so close, they used
16 to leave home together and go to school. Most of time when
17 she was not at work they used to be very close after a while,
18 even in the salon. Most of the time they used to be like
19 that.
20 Q Let me direct your attention to August 7, 1998. Did there
21 come a time that day when you learned there had been a bombing
22 in the area of the Cooperative Bank Building? Did you learn
23 that there was a bomb on August 7, 1998?
24 A Yes.
25 Q Did there come a time when you went to the place where
6859
1 your wife worked?
2 A Yes.
3 Q Can you tell the jury what you saw when you drove by
4 there.
5 A When I went there the place my wife was there, there was
6 nobody. There was only debris, which were -- even people
7 were -- after the blast, all the walls of the building are
8 blown out. So what means, there are only those slabs which
9 come lying to each other. I think there was like -- it was
10 just one floor after the blast.
11 Q Did there come a time when you learned that your wife was
12 trapped beneath the rubble of what had been the Ufundi House?
13 A Yes.
14 Q Can you tell the jury what you did after you learned that.
15 A After I learned that she was trapped that day, we started
16 trying to figure out if we could rescue her. We start there
17 from the hours from 8 up until 11 trying to rescue her until
18 finally four days when she was found she was dead. I collapse
19 when I hear that she had died.
20 Q So the three days, four days when she was beneath the
21 rubble, were you there day and night at the scene?
22 A Yes.
23 Q And then when you heard the news you collapsed?
24 A Yes.
25 Q What happened when you got up the next day, after learning
6860
1 that she had died?
2 A After I collapsed I was taken by ambulance and I was taken
3 to my brother's house. The next day in the morning, as we are
4 going, the first thing I saw were the newspapers. I was taken
5 to hospital by Red Cross.
6 MR. FITZGERALD: Your Honor, at this time I would
7 offer Government's Exhibit 2123B and ask to display it.
8 THE COURT: Yes.
9 (Government Exhibit 2123B received in evidence)
10 Q Can you describe to the jury who it is that is in the
11 picture on the TV screen to your left.
12 A This is, the boy James Mwangi, and the daughter is Diana.
13 Q Are they holding a picture of their mother?
14 A Yes.
15 Q This was taken after she had died?
16 A Yes.
17 Q How has life been for the daughter Diana since the time
18 that your wife was killed?
19 A How?
20 Q What has been the impact on your daughter Diana from the
21 loss of her mother?
22 A Diana was most affected, I think, because of the relation
23 she used to have with her mother, because even today she
24 cannot understand how or who caused her mother death, because
25 they used to be so close.
6861
1 MR. FITZGERALD: Thank you for coming toyed, sir.
2 THE COURT: Thank you. You may step down.
3 (Witness excused)
4 MR. GARCIA: The government calls Winfred Wamai.
5 WINFRED WAMAI,
6 called as a witness by the government,
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. GARCIA:
10 Q Miss Wamai, was your husband killed in the August 7
11 bombing at the U.S. Embassy in Nairobi?
12 A Yes, he was.
13 Q What was his name?
14 A Adams Titus Wamai.
15 Q Where did your husband work?
16 A He worked at the American Embassy.
17 Q Do you know where in the American Embassy he worked? What
18 office?
19 A In Nairobi.
20 Q Yes. What was his job at the embassy?
21 A He was working as a commercial specialist.
22 MR. GARCIA: Your Honor, at this time the government
23 would offer and display Exhibit 2209.
24 THE COURT: Yes.
25 Q Is that a photo of your husband there?
6862
1 A Yes, it is.
2 Q Could you describe your husband for us.
3 A He was a good man, a loving father and a very caring
4 husband. He was also a loving son to his mother. He was a
5 terrific person. He was a good man.
6 Q Again, if I could just ask you to speak a little bit
7 louder and possibly a little bit closer to the microphone. I
8 think it would be helpful for everyone.
9 Ms. Wamai, could you tell us a little bit about the
10 morning of August 7, 1998.
11 A Yes. That morning we all got up early because the
12 American Embassy usually used to open quite early. When I
13 gave him breakfast in the morning, he asked me to tell his son
14 to call him at the embassy to bring some bills. That morning
15 he came down with wearing a jacket that I didn't like, and I
16 asked him how can you wear this jacket, and he just walked
17 upstairs and came down wearing the one that was my favorite.
18 We joked in the morning and he told me that I don't have to be
19 jealous of the jacket. Then he reminded us to bring some
20 bills. When he went, about 10:30 someone came to my house and
21 told me that they had bombed the Cooperative Building. I
22 asked them, the Cooperative Building is next to the embassy.
23 So I left the house to go start looking for a phone -- my
24 phone at home was not working -- to go and try to go to the
25 embassy and find out if they had been cashed. But there was
6863
1 no phones working. We started walking to the embassy. We
2 didn't think about taking the car. We just started walking.
3 Even there was no public transport that morning. So we
4 started walking to the embassy, to town, which is about 20
5 minutes from where we live. Before we got there, we got so
6 many stories, that they bombed the embassy, somebody said that
7 they saw the ambassador being removed from the building dead.
8 Someone said so many stories before we got just near the
9 embassy. There was a hospital there where they had people
10 coming in with injuries. We decided to go there. I was with
11 a friend of mine. This time I am asking myself, I have my son
12 there and my husband as well. Anyway, by the time we get to
13 the hospital, people are being brought with injuries and
14 people are trying to get in there but they wouldn't let us
15 there. We decided to go to town. When we got near town there
16 was a bridge and they wouldn't let us through. So we decided
17 to come back home.
18 When I got home I found my son, and he is the one who
19 told me he was able to go out the embassy because it happened
20 10 minutes before he talked to his father. He said I was able
21 to go call out there and he said mommy, please go and look for
22 dad I because it's bad, what I saw was bad. Someone even
23 offered him a cell phone to try and call someone, because he
24 was confused and there was no one at the embassy, no one had
25 realized what was going on. He told me he took the phone and
6864
1 he looked at it and he didn't know what to do with it. He
2 couldn't think who to call and he got confused. And he said
3 go look for dad because it's really bad. When I went back, I
4 went to all the hospitals in Nairobi, and there are more than
5 20. But I didn't find him that day. I looked for him all
6 throughout the next day and I still didn't find him. When
7 they came and told me, it was the next day about 4, they told
8 me that they found him. So I went to see him. I went to see
9 him at the house where they had taken the embassy employees,
10 and he didn't have a face when I saw him. I just got him from
11 his clothes. He didn't have a face. He didn't even have a
12 heart. Part of his chest was gone.
13 We buried him one week after that. I wasn't even
14 able to dress him in his favorite jacket, because I couldn't
15 dress him. We had to tie him up with a sheet to bury him.
16 Q Ma'am, could you tell us also the impact of your husband's
17 death, the continuing impact that it has had on you and on
18 your family.
19 A It has been very difficult. It's been long and my
20 children don't believe that their dad died. He wasn't
21 supposed to die. It is especially hard to alleviate the
22 children's hurt because they can't see their father until he
23 died. They saw that body, what they saw. Also, it's been
24 very lonely for me. Sometimes I wake up at night and I can
25 see him there, I can feel him there. Then I wake up and
6865
1 realize that he is not there. So it's been very hard. Most
2 evenings I still can hear him knock on the door in the evening
3 and sometimes I can even hear his car hooting when he is
4 coming home.
5 It's been very hard for everyone financially. I had
6 to take a little money that he had kept as a small fund for
7 the education of his children to try and make ends meet. His
8 aging mother, she is 98 now, I have to look after her as well.
9 So it's been very hard for us. We don't have him to
10 listen to us like he used to be, because he used to be a very
11 good listener and a caring person. He is not there. It's
12 been difficult.
13 MR. GARCIA: Thank you very much. I have nothing
14 further.
15 THE COURT: Thank you, ma'am. You may step down.
16 (Witness excused)
17 MR. FITZGERALD: The government calls Dr. Egambi
18 Dalizu, D-A-L-I-Z-U.
19 EGAMBI FRED DALIZU,
20 called as a witness by the government,
21 having duly affirmed, testified as follows:
22 DIRECT EXAMINATION
23 BY MR. FITZGERALD:
24 Q Good afternoon, sir.
25 A Good afternoon.
6866
1 Q Sir, did you lose your wife in the August 7, 1998 bombing
2 of the American Embassy?
3 A I did.
4 Q Can you tell the jury her name?
5 A Jean Rose Dalizu.
6 Q Can you tell us how old your wife Jean was at the time of
7 the bombing.
8 A She was born in 1937, so she was -- my arithmetic.
9 Q Approximately 60 years old at the time of the bombing?
10 A Sixty-one.
11 Q Can you tell the jury where and when you first met your
12 wife?
13 A I was a student at Howard University in Washington, D.C.,
14 and she was working for the US government at that time. We
15 met in 1962.
16 Q When did you and Jean get married?
17 A The following year, 1963, January.
18 Q Can you describe your relationship and how your family
19 grew and moved over the course of the years from the early
20 1960's.
21 A Shortly after we got married, we moved to southern
22 California, where I was pursuing my postgraduate studies, or
23 graduate studies, at UCLA, Claremont Graduate School. I was
24 both in school and at work, because we were raising a family
25 of three in the sixties. In 1971 we had our other child. So
6867
1 both of us were working. Even though I was the one going to
2 the classroom, Jean was my assistant throughout. When I got
3 my doctorate, my Ph.D, we recognized her by awarding her the
4 PHT, pushed husband through.
5 Q In what specialty did you both earn your degrees?
6 A Mine was political science and international relations.
7 She was a secretary at various institutions, including the
8 University of California.
9 Q Could you just keep your voice slightly higher. What
10 country were you born in?
11 A I am Kenyan by birth. Southern California is my second
12 home. I have been given the key to the city of Claremont in
13 the late sixties.
14 Q Did there come a time when you and your family decided to
15 move home to Kenya?
16 A We moved to Kenya when I got an appointment where the
17 University of Nairobi as a lecturer in 1974. The whole family
18 moved. It is something that we had anticipated all along
19 anyway. It was not bankrupt.
20 MR. FITZGERALD: Your Honor, at this time we would
21 offer and seek to display Government's Exhibit 2021A, a
22 photograph.
23 THE COURT: Yes.
24 (Government Exhibit 2021A received in evidence)
25 Q Sir, that is your wife depicted in the photograph 2021A?
6868
1 A This is my wife.
2 Q Can you tell us a little bit about your wife's
3 personality?
4 A One can even get a glimpse of it from the pictures she had
5 at the U.S. Embassy. This is her office. That is where she
6 lost her office in August of 1998. She was pleasant in
7 demeanor throughout the whole period that I knew her since I
8 met her in 1962 until her death.
9 Q Did there come a time when you had grandchildren?
10 A We have three grandchildren.
11 Q How did your wife Jean relate to the grandchildren?
12 A Not very much, because the parents of the grandchildren
13 are in Washington, D.C., and we lived in Kenya. So the only
14 relationship was when she was visiting the US and she would
15 get to be with them.
16 Q Did you and your wife have a plan as to what the two of
17 you would do together in terms of a future retirement, when
18 she would retire?
19 A I myself had retired in 1994 from the University of
20 Nairobi. Our plans were for me to attempt create family
21 gardening while she continued to work for a few more years.
22 We had bought property, about four acres, a few miles from
23 Nairobi. Jean had sketched plans for building a house on that
24 property. It is still lying there since that faithful day for
25 us. I haven't done much. Part of my life ended on that 7th
6869
1 of August.
2 MR. FITZGERALD: Thank you, sir. Thank you for
3 coming. I have nothing further.
4 MR. BAUGH: No questions.
5 THE COURT: Thank you, Doctor. You may step down.
6 (Witness excused)
7 MR. GARCIA: The government calls Priscilla Okatch.
8 PRISCILLA OKATCH,
9 called as a witness by the government,
10 having been duly sworn, testified through an interpreter
11 as follows:
12 DIRECT EXAMINATION
13 BY MR. GARCIA:
14 Q Ma'am, did you lose your husband in the August 7 bombing
15 in Nairobi?
16 A Yes.
17 Q What was his name?
18 A Maurice Okatch Ogola.
19 Q Where did Maurice work?
20 A He was working in the American Embassy.
21 Q What was his job there?
22 A He was a driver.
23 Q How old was your husband when he died?
24 A Fifty years old.
25 Q How long had you two been married?
6870
1 A Twenty-two years.
2 Q Did you have any children?
3 A Yes.
4 Q How many?
5 A Four.
6 MR. GARCIA: Your Honor, at this time the government
7 would offer Government's Exhibit 2170 and display it, with the
8 court's permission.
9 THE COURT: Yes.
10 (Government Exhibit 2170 received in evidence)
11 Q Is that a photograph of your husband, ma'am?
12 A Yes.
13 Q Could you tell us something about your husband, describe
14 him for us.
15 A We was living together very nice. He was the one who was
16 working. He was the leader of the house and of the children.
17 He was the leader of me. We lived together very nice.
18 Q Were you traveling away from home on the day of the
19 bombing, August 7?
20 A I was coming from home and I heard on the radio that there
21 is an explosion at the American Embassy. Then I decided to
22 come back. The next day I came there and I didn't find him at
23 home. Then I start looking for him in the hospitals, and I
24 didn't find him. I start looking at the mortuaries. We
25 looked for him for long time in the mortuaries. We found one
6871
1 body that was so much damaged. There was no head. There was
2 no private parts. There was DNA tested, and then I was told
3 that's the one.
4 Q Could you tell us what the impact of your husband's death
5 had on you and on your family.
6 A After my husband died, my life is so different, because he
7 was the one who was providing for us. I miss him as my lover
8 and the protection for the kids.
9 MR. GARCIA: Thank you. I have nothing further.
10 THE COURT: Thank you very much. You may step down.
11 (Witness excused)
12 MR. FITZGERALD: The government calls Geoffrey
13 Gichia, G-I-C-H-I-A.
14 GEOFFREY GICHIA,
15 called as a witness by the government,
16 having been duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. FITZGERALD:
19 Q If you could sit closer to the microphone. You have a
20 nice but soft voice. If you could just keep it a little
21 louder, then everyone can hear you. Thank you.
22 A My name is Geoffrey Gichia, G-I-C-H-I-A.
23 Q On August 7, 1998, was your wife killed?
24 A Yes, she was killed.
25 Q Can you tell the jury her name.
6872
1 A Her name was Jacinta Njoki Njau.
2 Q How old was Jacinta at the time of August 7, 1998?
3 A She was 26 years.
4 MR. FITZGERALD: Your Honor, at this time I would
5 like to display Government's Exhibit 2144 and offer a
6 photograph.
7 THE COURT: Yes.
8 (Government Exhibit 2144 received in evidence)
9 Q Sir, if you could look at the photograph on the screen to
10 your left, is that a picture of your wife Jacinta?
11 Would you prefer us to take the photograph down?
12 Can you tell the jury when you first met Jacinta?
13 What year?
14 A When I first met her? I met her in 1990.
15 Q Can you tell the jury when you got married?
16 A I got married in 1995.
17 Q Did you have a child with Jacinta?
18 A Yes, we had a kid, one kid.
19 Q Can you tell us your child's name? What was his name?
20 A His name was Louis Njau.
21 Q How old was Louis as of August 1998?
22 A He was about three years.
23 Q Can you tell the jury what Jacinta was like as a person
24 and a wife.
25 A She was lovely. She was joyful. She was very good to me.
6873
1 Q Can you tell the jury what Jacinta was like as a mother?
2 A What?
3 Q What was Jacinta like as a mother to Louis?
4 A She was lovely. She was very good to her son and first
5 born.
6 Q Did you and Jacinta start a computer business together?
7 A Yes, we started a business together.
8 Q Was she working in that computer business on August 7,
9 1998?
10 A Yes, she was there on that day.
11 Q In what building was she in?
12 A She was at the Ufundi Cooperative House.
13 Q Did there come a time when you learned that your wife
14 Jacinta had been killed in the explosion?
15 A Yes, I learned that she was killed.
16 Q Just tell the jury the impact that had on you to learn
17 that Jacinta had been killed.
18 A It was a very painful experience being the first to have
19 happened in my family. It was very painful.
20 Q That was the first person in your family that you had
21 lost?
22 A Right.
23 Q Can you tell the jury what it has been like for you and
24 your son Louis since the time that Jacinta passed away?
25 A It has been very difficult, especially for my boy, who
6874
1 keeps on asking about what happened about the mother.
2
3 (Continued on next page)
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14
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18
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21
22
23
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6875
1 Q Do you miss her very much?
2 A Very much.
3 MR. FITZGERALD: Thank you for coming. No further
4 questions.
5 THE COURT: Thank you, sir. You may step down.
6 (Witness excused)
7 MR. GARCIA: The government calls Richard Wamairte.
8 RICHARD WAMAIRTE,
9 called as a witness by the government,
10 having been duly sworn, testified,
11 through the interpreter, as follows:
12 DIRECT EXAMINATION
13 MR. GARCIA:
14 Q Sir, how old are you?
15 A I was born 1953.
16 Q Prior to August 7, 1998 where were you working?
17 A I was working for Amazon Motors Company.
18 Q What type of work did you do at Amazon?
19 A I was a mechanic technician.
20 Q And how long had you been a mechanic technician?
21 A 20 years.
22 Q Are you married?
23 A Yes, I'm married.
24 Q How many children do you have?
25 A I have six children.
6876
1 Q Were you working on August 7, 1998?
2 A I was on vacation.
3 Q Did you decide to take a bus into Nairobi that day?
4 A Yes, I decide to go to Nairobi.
5 Q Did there come a time when you were on the bus that you
6 heard an explosion?
7 A Before the bomb was other explosions. There was the
8 second explosion. And then the big bomb was exploded.
9 Q Where was the bus when that happened?
10 A It was at the Haile Selassie Avenue.
11 Q Before coming to court today, did you look at some
12 photographs that showed the bus that you were on?
13 A Yes, I've been shown a picture.
14 MR. GARCIA: At this time, your Honor, the government
15 would offer Government Exhibits 2250, 2251, and 2254 and
16 display 2250 with the Court's permission.
17 THE COURT: Yes, you may.
18 (Government's Exhibits 2250, 2251 and 2254 received
19 in evidence)
20 Q If we could display 2251.
21 And if we could now display 2254. If it's possible
22 to enlarge the section in that.
23 Q Mr. Wamairte, could you tell us what happened when the
24 bomb went off and you were inside that bus?
25 A As I said before, I had first heard the first one
6877
1 explosion, the second one and the big explosion and I turned
2 my head to look towards where the explosion was happening.
3 And then I look at it and I saw something was flying on it and
4 the bus was lift up about 50 feet, 20 feet up and then we went
5 down again, and after that I lost conscious. I didn't know
6 where I am.
7 On that day of Friday I was taken I didn't know where
8 I was taken to, until Sunday. That's the day I know where I
9 was, and that's the time I was told that I was in a hospital.
10 Then I relaxed a little bit and then I started
11 getting treatment after that. I was admitted there for ten
12 days. And then I was taken to Kenyata Hospital. And then I
13 stay at the hospital one month and a half.
14 And after that I was sent home. And all this time
15 I've been going back and forth to the hospital for treatment.
16 After staying few days I go back to the hospital. And from
17 that point I lost one of my eyes, and one of my eyes don't
18 have no, I can't see proper.
19 And the place I was working they laying me off. Now
20 I have my wife and the children who look upon me. My wife is
21 not working. At this time I have a lot of problem. Right now
22 I have no help and still the people who was depending on me
23 depend on me.
24 I don't have any help which I can help to try to get
25 my children because they are so young. I have a small plot of
6878
1 land which I can't do anything about it. Right now I'm just
2 getting help whenever I can get help. I don't have anything
3 to say more than that.
4 MR. GARCIA: Thank you very much for coming, sir.
5 THE COURT: Thank you, sir. You may step down.
6 (Witness excused)
7 MR. FITZGERALD: The government calls its last
8 witness, Clara Aliganga.
9 CLARA ALIGANGA,
10 called as a witness by the government,
11 having been duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. FITZGERALD:
14 Q Good afternoon.
15 A Good afternoon.
16 Q If you could just keep your voice up and if you stay close
17 to the microphone everyone can hear you.
18 A Okay.
19 Q Ma'am, was your son killed in the bombing of the American
20 Embassy on August 7, 1998?
21 A Yes, he was.
22 Q Can you tell us your son's name?
23 A Sergeant Jessie Daniel Aliganga.
24 Q What did he like to be called?
25 A He liked to be called Nathan.
6879
1 Q And in preparation for your testimony did you bring a
2 number of photographs with you?
3 A Yes, I did.
4 MR. FITZGERALD: Your Honor, at this point I'd like
5 to display, Government Exhibit 2012A and offer it.
6 THE COURT: Yes.
7 (Government's Exhibit 2012A received in evidence)
8 Q Can you tell the jury which of the four Marines in that
9 photograph is Nathan?
10 A The one that's the shortest. That's Sgt. Nathan Aliganga.
11 Q On the far left?
12 A Yes.
13 Q Did people give him a lot of ribbing for being shorter?
14 A Yes, he took a lot of ribbing for being short.
15 Q How big was his heart?
16 A Very big. As a matter fact, one of his instructors at
17 Quantico, Gunney Cozine, said what Nathan lacked in size he
18 made up for in heart.
19 Q Can you tell us what Nathan was like growing up as a
20 child?
21 A He was a very, very happy child. He always smiled. He
22 had a big heart. He worked for the AS -- the animal -- I'm
23 sorry I can't think of what the name of it is, but he used to
24 do volunteer work for the sheltered animals. And he also used
25 to help with the Special Olympics when he got older when he
6880
1 was in high school.
2 And he had a great love of music and he played the
3 saxophone, and he played well. He was always either first or
4 second chair, and there's a lot of, how do you say, people
5 vying for that spot.
6 He always told me that some day he wanted to go to
7 Africa, because he had such a great love of animals. And one
8 time as a child he was playing and I had this long computer
9 table, and I was wondering where he was at, and he was up
10 underneath there with his little animals that he always wanted
11 to buy his little plastic animals, and he would always tell me
12 I'm going to go to Africa, Momma, and I'm going to go on a
13 safari. And he never got to do that.
14 Q Did Nathan have a sister?
15 A Yes, he did.
16 Q Tell us your daughter's name?
17 A Her name is Lea.
18 MR. FITZGERALD: I'd like, your Honor, at this time
19 to offer and show Government Exhibit 2012B.
20 (Government's Exhibit 2012B received in evidence)
21 Q Is that a picture of Nathan and Lea together?
22 A Yes, it is.
23 Q Can you tell the jury about the relationship between
24 Nathan and Lea?
25 A I'll try my best to. It just seems as though trying to
6881
1 find words to describe the relationship the words just seem so
2 inadequate. They were very, very close. Even if Nathan
3 aggravated his sister and he would, she would get angry with
4 him, or, I'm sorry. They, they were just really very, very,
5 very, very close. I can't find words to describe just the
6 closeness that they shared. They would stay up all hours of
7 the night, listen to music. When he was home, they'd go out
8 and have their party time as brothers and sisters do.
9 Q Did Lea have a nickname for Nathan?
10 A Yes. She called him Little Bro. And Sgt. Shortstop.
11 Q And did Lea have children?
12 A Yes, she does.
13 Q Can you tell us the children's names?
14 A My oldest grandson's name is Shannon and my youngest
15 grandson's name is Chris, and my granddaughter's name is
16 Jasmine.
17 Q And can you tell the jury about the relationship between
18 Nathan and his two nephews and his niece?
19 A Absolutely fabulous. Actually, it was kind of hard to
20 tell which one was the youngest child because when Nathan got
21 around them he just lost it with them. He would rumble on the
22 floor with them. Wrestle with them. Hug them and kiss them.
23 Tease them. And as an uncle he also disciplined them. That's
24 when the Marine side of him would come out, and they would
25 mind their uncle. They loved their uncle very, very much.
6882
1 At one time I was watching my granddaughter after the
2 bombing had happened -- of course children young like that
3 it's hard for them to understand death. And I guess my
4 youngest, my granddaughter, all she had heard was that her
5 uncle had gone to heaven. One day I picked her up from school
6 and she asked me, she says: Grammy, she says, when is Uncle
7 Nathan going to come home? And I said, well, I'm not real
8 sure about that. And she says well, God has had him up there
9 for awful long time. Why is it taking God so long to fix my
10 uncle so that he could come home? And I tried to just remain
11 brave, and I really just told her: Well, we'll have to talk
12 to God and maybe one day God will give us and answer.
13 MR. FITZGERALD: Your Honor, at this time I'd like to
14 offer and display Government Exhibit 2012C.
15 THE COURT: Yes.
16 (Government's Exhibit 2012C received in evidence)
17 Q Is that Nathan with his nephews and niece?
18 A Yes, it is.
19 Q Can you tell us -- take a moment.
20 (Pause)
21 Q If you could tell us what the relationship was like
22 between you and Nathan?
23 A I couldn't have had a better son and I know that my son
24 loved me very, very much. We were close, as a family were
25 very, very close. I can't tell you of the countless times
6883
1 that we would just be in a situation and we'd start looking at
2 each other and we automatically knew what each one was going
3 to do.
4 When he would come home on leave and after he would
5 get settled in, a lot of times he would want to rest, and he
6 would walk over to the couch and he would just have this most
7 beautiful child-like grin on his face. And then I would tell
8 Nathan: Okay, come on. And what he would do was lay his head
9 in my lap, because he used to love for me to tickle his
10 forehead, and make him relax, and then he would hand me his
11 hand, and I would do the same in the palm of his hand. And
12 then he would get up and switch so that his feet would be in
13 my lap and he would say: Okay, mom, now it's time for you to
14 tickle my feet.
15 Q Did Nathan tell you who the ladies in his life were?
16 A Yes.
17 Q Who were they?
18 A First and foremost was his niece, and then myself, and my
19 daughter. We were the special women in his life. And he more
20 than anything wanted to know, I think that's why he strove so
21 hard to do the best that he could do for the Marine Corp and
22 for his country, because he made a comment one time that he
23 always wanted to be in a position so that no matter what
24 happened that he could always be there to help his mother and
25 his sister, and her children.
6884
1 Q Can you tell the jury how much Nathan weighed when he went
2 into the Marines?
3 A Believe it or not when my son graduated from high school
4 he was 203 pounds. And upon our return to Pensicola, he
5 decided that he was going to go into the service, but he was
6 unsure of which he would go into, so he went and he
7 interviewed each branch. And, finally, after about three
8 weeks, he came home and he says: Mom, I'm going to be a
9 Marine.
10 And at that point in time I was very, very proud of
11 his decision, because going in the Corp and going to the
12 Marine Corp boot camp is not an easy thing. And even before
13 that, he could go into boot camp he had to lose weight. He
14 had gotten down to 154 or '56 pounds and then they went ahead
15 and let him sign, well, let me sign because he was only 17 at
16 that time. And he went off to boot camp.
17 He graduated January of '95 and when I went to his
18 graduation he had lost so much more weight, and he had got so
19 fit, I was standing up on a park bench trying to get a picture
20 of him and trying to find him through the lens of the camera
21 and then I hopped down and I looked at my fiancee and said:
22 Where is my son? I can't find my son. And he said: Honey,
23 calm down. He goes: It's the little guy right over there.
24 He says: Look at his lips. Those are his lips. And I looked
25 and I was just in awe.
6885
1 And then they paraded them to the front of the main
2 building where they have them meet their families. And as he
3 was standing there I kept looking and I looked down and I saw
4 his hands. My son had the most beautiful hands, and I
5 thought, oh, my God, that's my son. My son.
6 MR. FITZGERALD: Your Honor, at this time I would
7 like to offer and display Government Exhibit 2012D.
8 (Government's Exhibit 2012D received in evidence)
9 Q Ma'am, can you tell us what that picture is?
10 (Pause)
11 A That picture was taken at Tallahassee airport when my son
12 came off the airplane after being stationed in Japan for a
13 year. I can remember the plane hadn't even landed, I could
14 see it coming and I was already in tears, because I just
15 wanted to hold my son in my arms, and we hugged for the
16 longest time. We hug a lot in my family. We were very
17 emotional with one another. We showed affection all the time.
18 Nathan was not ashamed to kiss me in front of anyone. And
19 hug. We always hugged, always.
20 MR. FITZGERALD: I'd next like to show, your Honor,
21 Government Exhibit 2012E, another photograph.
22 (Government's Exhibit 2012E received in evidence)
23 Q Did Nathan smile a lot?
24 A I'm sorry, I didn't hear you.
25 Q Did Nathan smile a lot?
6886
1 A Practically all the time. The same day he came home from
2 Japan and when he walked in the house he threw his arms up and
3 he goes: I'm finally home.
4 Q Did there come a time when Nathan told you he joined the
5 Marines security guard detachment?
6 A Yes.
7 Q Can you tell the jury about that?
8 A It was in Pendelton at the time. He decided that he was
9 going to join the MSG program. I was a little apprehensive.
10 I didn't quite understand what it was, and then I questioned
11 him. I said: Is that like being the equivalent of a
12 policeman? And he laughed at his mother and he said: No, no,
13 no. He says: You know the little guys that stand in front of
14 the embassy.
15 And he heard my silence, and he knew, because his
16 response was, Mom, just be happy for me. But my heart had
17 sunk because I knew that embassy duty could be dangerous. And
18 I told him: I said: Nathan, I said, I'm happy for you. I
19 know you know you want to do this. And of course I've always
20 backed my children 100 percent. As long as anything they ever
21 did was above board. I was always there for them. It was his
22 life, and that's what he wanted to do. I could not work for
23 him to make him happy. He had to be happy in his career.
24 And so I told him, I said: I'm behind you 100
25 percent. I said: If that's what you want, go for it.
6887
1 MR. FITZGERALD: Your Honor, at this time I would
2 offer and display Government Exhibit 2012F.
3 (Government's Exhibit 2012F received in evidence)
4 Q Can you tell the jury when this photograph was taken and
5 why you picked this out?
6 A This photograph was taken December 24, 1997. When I got
7 married Nathan was sitting in a chair and he just looked and
8 he had that most wonderful gorgeous smile. So I took a
9 picture of it. When you look at that picture you can really
10 see what type of a young man that Nathan was. He had the
11 biggest heart. He had such tenderness, the love.
12 Q Ms. Aliganga, can you tell the jury the Christmas present
13 that sticks out in your mind?
14 A The most precious gift that I ever received from my son
15 was a poem that he wrote for me in 1993. He didn't have a lot
16 of money. And I always brought my children up that money
17 cannot ever buy you happiness. And he, so he wrote me this
18 poem because he really couldn't find anything. And so he gave
19 me a part of his heart in this poem that he had wrote for me.
20 Q Would you like to read the poem or would you prefer not
21 to?
22 A I would like to read it.
23 MR. FITZGERALD: Your Honor, let me approach with
24 what has been premarked as 2012G.
25 (Government's Exhibit 2012G received in evidence)
6888
1 A After Nathan had passed away I had these cards made up
2 because I received so many wonderful things from such
3 compassionate people when I lost my son, and I wanted to
4 return something to them. So I decided to enclose the poem
5 which Nathan had wrote for me as a gift.
6 And the title is, Christmas is. The memories of
7 Christmases long past still linger in my mind. The years we
8 had to sacrifice and leave the good things behind. Back then
9 I never understood why things turned out that way and many
10 times I blamed my mom, not knowing the price she paid.
11 As I got older and time passed on I began to
12 understand it's not the gift or material things that tend to
13 make the man. Christmas is the time when we should love and
14 care for another, giving and caring as well as sharing, not
15 worrying about the dollar.
16 So when this Christmas comes about remember and take
17 part, show people what it's all about, that Christmas is in
18 your heart.
19 Q Thank you.
20 Can you tell the jury when you last saw Nathan?
21 A The last time I saw Nathan, did you mean before --
22 Q Before the bombing?
23 A Okay. Was for Christmas 1997 and he left shortly
24 thereafter. I think it was like December 2nd or 3rd of '98.
25 Q Can you take your memory back to August 7, 1998? Can you
6889
1 tell the jury what happened that day?
2 A It started out as a normal day. My daughter brought my
3 grandkids over to me to watch. At that time I was trying to
4 establish my own family day care for children, and I was lucky
5 enough to have my three grandchildren as my initial clients.
6 And I got them settled in, and had them, their
7 breakfast and everything, and then I decided, 'cause I was
8 going to call my son that morning, and as I was going into the
9 kitchen to get a cup of coffee, I had turned, before I had
10 turned the TV on, and why I put it on a news station I don't
11 really remember, because normally I don't watch too much of
12 the news.
13 Anyways, on the way into the kitchen I heard, I just
14 caught the phrase, embassy bombing Nairobi. And I stopped,
15 and my husband was just walking down the hall to go to bed,
16 and I asked him to please come back in and listen to the TV.
17 And so he did. And I went into the kitchen and then
18 he shortly came into the kitchen, and he didn't have to tell
19 me anything, because I could tell by the look on his face that
20 something was very wrong, and he told me, he says: Honey, I
21 think you need to try and call someone to find out what has
22 happened. That's how I found out about the bombing.
23 Q What happened after that?
24 A After that I got hold of a task force unit phone number
25 that was set up in Washington. And the person I had got in
6890
1 contact with told me that Nathan was put on and injured
2 person's list, but at that time they didn't have all the
3 information as to the extent of his injuries, and so I just
4 wrote the number down and figured I would call back in a
5 couple of hours to see if anything had, information had come
6 through about my son.
7 The day progressed on, and they still had the same
8 story that he was still on the injured list. Later on that
9 evening, the Marine reserve unit in Tallahassee sent out the
10 casualty officers to my home to let me know that they couldn't
11 find my son, and that they placed him at that point in time as
12 missing.
13 And then the day, well, the night went on and I
14 didn't sleep all night. And 10:30, about 10:30 on Sunday
15 morning my daughter says: Mom, she said I heard a car. And I
16 said: Well, let me peek out the window. And I saw three
17 Marines in their dress blues walking down my sidewalk. And I
18 could recall in seeing movies that when you have these people,
19 when you have someone that's in the military and they send out
20 the detail to bring you the bad news, but I said: Well, I'll
21 let them in and maybe they just have something to tell me
22 about his injuries.
23 Anyway, they came in, and they said that they had
24 found my son and that he was dead. And it took them 27 hours
25 to find Nathan because he was buried under so much. And from
6891
1 that moment on everything about life changed for me and my
2 family.
3 Q Ms. Aliganga, did Nathan have a best friend in the Marines
4 in Nairobi, name AJ?
5 A Yes.
6 Q What did AJ do?
7 A AJ escorted my son all the way home from Nairobi to
8 Tallahassee.
9 Q Now, did there come a time when you saw some photographs
10 of what your son looked like after the bombing?
11 A Yes.
12 Q And was it fair to say it's very painful to look at them?
13 A Yes.
14 Q And we won't show those photographs.
15 But, your Honor, I would offer Government Exhibit
16 2012H, a different photograph and ask to display it to the
17 jury.
18 (Government's Exhibit 2012H received in evidence)
19 THE COURT: Yes, you may.
20 Q Can you tell the jury how you got this photograph and who
21 the person carrying Nathan out from the embassy is?
22 A Could you please repeat that? I didn't hear you.
23 Q I'm sorry. Is that a picture of AJ and his fellow Marines
24 carrying Nathan out from the embassy?
25 A Yes.
6892
1 Q Was Nathan proud to be a United States Marine?
2 A Yes, he was.
3 Q Was he proud to be your son?
4 A Yes.
5 Q Can you just tell the jury what the world is missing
6 without Nathan?
7 (Pause)
8 You don't have to answer. Can you just tell us one
9 thing you want more than anything else that you told us?
10 A More than anything else I wish that I could hold my son in
11 my arms and to have him lay his head on my shoulder as he did
12 so many times when he was home, and he would tenderly give me
13 a kiss on my neck or how he would just come up from behind me
14 and wrap his arms around me and hold me so tight, and tell me:
15 Momma, I love you.
16 MR. FITZGERALD: Thank you, Ms. Aliganga. Thank you
17 very much for coming. Nothing further.
18 Your Honor, the government rests.
19 THE COURT: Government rests.
20 (Witness excused)
21 THE COURT: As you've heard the government rests and
22 we will adjourn until Monday. Please remember what I've said
23 about not reading, listening, talking to anyone about this
24 case or anything related to this case. Have a good weekend
25 and we're adjourned until Monday morning.
6893
1 (Jury not present)
2 THE COURT: We'll adjourn until 2:30 at which time --
3 MR. BAUGH: Do you want to do it in the robing room
4 or in the courtroom?
5 THE COURT: I think the robing room. All right.
6 (Luncheon recess)
7 (Continued on next page)
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13
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15
16
17
18
19
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22
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24
25
6894
1 AFTERNOON SESSION
2 2:35 p.m.
3 (In open court; jury not present)
4 THE COURT: Mr. Fitzgerald?
5 MR. FITZGERALD: Yes, your Honor. Assuming that the
6 discovery materials were provided to us because they were
7 intended to be exhibits, we have objections, I think, to most
8 of the exhibits. I can hand them up but I can tell you, for
9 example, the most -- there are a number of disturbing
10 photographs. One is a study, which is not photographs,
11 entitled "Results of a 1999 Iraq child and maternal mortality
12 surveys." There are a number of pictures and writings about
13 birth defects, extreme birth deformities, and pictures that I
14 didn't turn past about the third page, if I could hand up to
15 your Honor.
16 THE COURT: These are written by whom?
17 MR. BAUGH: Which ones? What are you holding, your
18 Honor?
19 THE COURT: I don't know. It says extreme birth
20 deformities.
21 MR. BAUGH: The extreme birth deformities come off a
22 Web site called jihad in Chechnya, by Hazzam Publications, and
23 it is a group of jihad Web sites encouraging people to begin
24 jihad and be recruited. This is the sort of information they
25 put out to recruit people.
6895
1 THE COURT: Just to be sure about the context, I
2 think we have been through this before, but these are
3 documents that Mr. Al-'Owhali has never seen prior to this
4 trial?
5 MR. BAUGH: It is my understanding he has never seen
6 them, yes.
7 THE COURT: And they are offered with respect to what
8 aspect of the penalty phase?
9 MR. BAUGH: They are offered to show the totality of
10 the circumstances of the offense and the continuation of that
11 alleged in the indictment, the fact that there is an ongoing
12 animosity that has led to this offense and this conspiracy.
13 This is the sort of stuff that they are using to recruit
14 people, and it continues today.
15 THE COURT: No claim is being made as to the
16 authenticity of these?
17 MR. BAUGH: The authenticity?
18 THE COURT: Yes.
19 MR. BAUGH: We have spoken with witnesses who have
20 told us -- and there is a lot on the Internet -- about birth
21 defects arising as a consequence of the use of depleted
22 uranium in the Gulf War. It is all over the Internet as an
23 allegation. There has been no connection legally made.
24 However, people in the Middle East are asserting that these
25 birth defects are a consequence of the depleted uranium. On
6896
1 some of the tape recordings there are statements from doctors
2 in Iraq stating that there is a higher incidence of certain
3 cancers and certain birth defects that they attribute to
4 depleted uranium, and they have shown, and they talk about it
5 in the videos, that their numbers since the Gulf War have gone
6 up, and also the locations where these occur are consistent
7 with the eastern part of the country where depleted uranium
8 ammunition would have been used.
9 THE COURT: If there is no claim being made as to the
10 authenticity of these matters but if you are asserting, right
11 or wrong, this is the type of propaganda --
12 MR. BAUGH: That's an appropriate term.
13 THE COURT: -- to which Mr. Al-'Owhali was subjected
14 prior to his volunteering for the mission, if that's the
15 claim, then there has to be some time reference.
16 I am sure it is my difficulty, but whenever I try to
17 pin down exactly what it's for, it seems to me the focus
18 shifts. At one time I thought the claim was being made it is
19 an explanation for a lack of remorse.
20 MR. BAUGH: That was the next point I was getting to.
21 THE COURT: That's the next point. Insofar as the
22 first point is concerned, that this is the type of horrendous
23 material to which the defendant was subjected prior to his
24 volunteering for a mission, it seems to me there is a time
25 factor here.
6897
1 MR. BAUGH: Yes, your Honor. For motivational
2 purposes, this would have to predate the date of the offense.
3 THE COURT: And this does not.
4 MR. BAUGH: It does not.
5 THE COURT: Is this the only document called "Extreme
6 birth deformities"? We ought to have a record.
7 MR. FITZGERALD: That is a unique title, though not a
8 unique topic.
9 THE COURT: It is not being offered then as an
10 explanation for his state of mind at the time he volunteered
11 for a mission, but now you are saying it is also being offered
12 for lack of remorse?
13 MR. BAUGH: Yes, your Honor, two reasons. Just two
14 minutes. One, it is being offered for lack of remorse because
15 this is the sort of information that my client has heard about
16 that is going on in Iraq. Additionally, he may not have seen
17 these pictures, but when you read through Mr. Bin Laden's
18 words, they talk about the bombing and the destruction of
19 Iraq, and all that is being disseminated through Al Qaeda.
20 But as to these actual pictures, there is no indication my
21 client has ever seen these pictures, no.
22 THE COURT: And these are ghastly pictures of
23 deformed babies.
24 MR. BAUGH: Yes, sir, and they are --
25 THE COURT: -- being offered for the point of showing
6898
1 that deformed babies are ghastly looking.
2 MR. BAUGH: No, your Honor, it is more than that.
3 THE COURT: You know, I have thought, based on some
4 of the other subpoenas that I have signed at your request,
5 that you were going to have some political scientist or some
6 expert who was going to testify with respect to attitudes in
7 the Middle East, and perhaps you are going to do that also.
8 But gore for the sake of gore is not --
9 MR. BAUGH: Your Honor, it is not gore for the sake
10 of gore.
11 THE COURT: Tell me again. Tell me affirmatively why
12 it is that you want to subject those good people on the jury
13 to these pictures of grossly deformed infants?
14 MR. BAUGH: Based upon our investigation, your
15 Honor -- I am sorry. You can't hear?
16 DEFENDANT AL-'OWHALI: I hear you.
17 MR. BAUGH: Excuse me.
18 My client advises me, and has advised me but I don't
19 know how I can get it into evidence, that every day predating
20 the bombing, that through El Hayat and other publications and
21 information he was being given, he has seen pictures of
22 children dying from diseases and he has seen stuff like it.
23 But I can't say that he has seen these exact photos.
24 THE COURT: Yes, but he has just told you, and it is
25 not the first time, exactly how this can be shown. If in fact
6899
1 this type of material was in publications which were
2 distributed so that the defendant had access to them and saw
3 them, then those obviously are the exhibits.
4 MR. BAUGH: The only problem is, your Honor, I don't
5 plan to have him testify to that, and I don't have any other
6 Mujahideen here. Yes, that is the reality here, but it is
7 different from reality to evidence. I have to offer it based
8 on what evidence I have available.
9 THE COURT: You have an awful lot of support staff
10 which has been provided to you, and it has not been possible
11 to have somebody guided by your client to the publications in
12 which he says this material has appeared?
13 MR. BAUGH: I have been directed to certain Web sites
14 and I have looked at them. As far as getting hold of
15 publications that were disseminated over there, we have not
16 been able to get any cooperation out of over there, no. In
17 fact, organizations in the United States --
18 THE COURT: They are not in the New York Public
19 Library? 42nd Street does not have a file on publications
20 such as -- what is the name of the newspaper?
21 MR. BAUGH: El Hayat.
22 MR. FITZGERALD: It is published in London, your
23 Honor.
24 MR. BAUGH: I have gotten a subscription and -- no.
25 THE COURT: And there is no one accessible to you who
6900
1 is a reader of these publications who can testify as to what
2 appeared in these publications during that period of time?
3 MR. BAUGH: I will tell the court that during my
4 investigation I have spoken to people who are personally
5 knowledgeable of the sort of publications going around. They
6 have advised me because of their personal position on
7 terrorism, they will not appear here on trial and speak for
8 the defense, period. I have had lunch with them --
9 THE COURT: And there is no librarian who has had
10 access to these publications?
11 MR. BAUGH: No, your Honor, there isn't.
12 THE COURT: You know, you tell me that -- and in
13 London where this is published there is not a record, one
14 could not go into the offices of this newspaper and check
15 their -- I don't want to use the term morgue, but check their
16 files?
17 MR. BAUGH: Your Honor, I have contacted El Hayat.
18 They have not been cooperative.
19 THE COURT: I am not talking about cooperation. I am
20 talking about records.
21 MR. BAUGH: No, your Honor, we have not found any,
22 no. We have gone on the Internet, we have found stuff.
23 Anything we can date, we can.
24 THE COURT: And there is no person who is willing to
25 testify as to these matters?
6901
1 MR. BAUGH: We were talking to someone -- we have
2 talked to a American from the American friends who as of this
3 morning had changed his mind and has agreed to testify, and we
4 are supposed to speak with him this evening. For the last
5 week he has been getting authorization.
6 THE COURT: You know, if you turn on any news program
7 which deals with subjects such as sanctions against Iraq,
8 there will be somebody who will be advocating the Iraqi
9 position.
10 MR. BAUGH: Yes, sir, and we spoke to some of them.
11 THE COURT: Yes.
12 MR. BAUGH: And some of them actually live in this
13 country, and I can tell you that the three people to whom we
14 spoke, all of them because they were concerned with their
15 immigration status, refused to cooperate. We have people on
16 videotapes talking who have told us they will not cooperate.
17 THE COURT: Yes, but, you know, what you also could
18 do is, you could also search the files and records of these
19 broadcast programs.
20 MR. BAUGH: Your Honor, we tried to get access to
21 that earlier, and it was refused to us by those very -- we
22 issued subpoenas to CNN. We called clipping services. They
23 won't give it up. They don't want to participate in this
24 case. We can't -- I even had Mrs. Brown --
25 THE COURT: With respect to clipping services --
6902
1 MR. BAUGH: Not clipping services, the thing you
2 recommended, the people who -- the stock houses, the one you
3 read about this in the New York Times. Yes, we did that too,
4 and we have been hitting our heads.
5 More importantly, not only they don't want to come, I
6 don't want to bring in a cooperative witness. This trial
7 is -- people are afraid of it. I will tell you right now,
8 people who are trying to get the sanctions lifted in Iraq
9 don't like the fact that they get called terrorists, and they
10 don't want to have anything to do with the terrorists. They
11 call, quote, terrorists detrimental to the cause. Which I can
12 understand.
13 THE COURT: One can hardly say that is an irrational
14 position.
15 MR. BAUGH: One who is into peace and lifting the
16 sanctions, one cannot say that is not a rational position.
17 THE COURT: Are you telling me that there is no
18 professor at any one of the major universities who cannot
19 testify not as to his personal beliefs but cannot testify as
20 to the climate, the positions taken by those who are violently
21 opposed to America's actions in the Middle East?
22 MR. BAUGH: Ms. Morales and I spent the afternoon
23 with probably -- with an American who speaks Arabic, who has
24 memorized the Koran, who is a learned professor, who consults
25 with the president of the United States on these issues, and
6903
1 he told me that he would not voluntarily testify during this
2 type of trial and that I should not even think of subpoenaing
3 him. It was a very nice lunch. We spent, what, three hours
4 with him and members of his staff, and we went over our
5 theories and he agreed with our theories. And he said he
6 could not do it. I would rather not say his name but --
7 THE COURT: I suspect I know who it is. That is, I
8 know of people who regularly appear on news programs devoted
9 to this subject.
10 MR. BAUGH: This person is even better than news
11 programs. Your Honor, I can tell you that the -- by the way,
12 we are not the only defense team that's run into this problem.
13 Even Mr. Odeh's lawyers and Mr. El Hage's lawyers have run
14 into this problem, of people who volunteered and agreed to
15 testify and called back to say on reflection we can't do it.
16 The people in my office and Ms. Morales have spent a lot of
17 time --
18 THE COURT: Have you spoken to Mr. Ruhnke?
19 MR. BAUGH: Yes, we have talked.
20 THE COURT: Mr. Ruhnke has furnished an expert
21 witness list to the government and to the court.
22 MR. BAUGH: Yes, that's right. Thank you for
23 reminding me. Last week I spoke with Benis Halliday, the
24 former undersecretary for the United Nations to Iraq, and he
25 was charged with designing the oil for food program and all
6904
1 that. He, because of his schedule, is not available till June
2 21. He was in town a week ago. He called us and said if you
3 can get over here with a videographer, he called us at noon
4 and said he was leaving for Ireland and we managed to get a
5 videographer and he invited us, and we got a statement from
6 him. Mr. Evon Sponick is the person who replaced Benis
7 Halliday as the undersecretary. He is from Germany and has
8 told us that he cannot cooperate. We have spoken to
9 Mr. Ramsey Clark, who thinks he has to be in Peru next week on
10 that case. We have spoken with Dr. Jennings who is out of the
11 country doing similar type work. We have spoken with a Dr.
12 Falk from Princeton who is presently involved in an
13 investigation at the behest of the United Nations. When I
14 first spoke to him back in January, he was going to be
15 available at the time we thought we would be getting into the
16 mitigation phase --
17 THE COURT: I understand that you have that
18 difficulty. I don't think that that difficulty is a basis for
19 subjecting those good people, who have been subjected to a
20 great deal as it is, to pictures of deformed babies which the
21 defendant has never seen and which in any event relate to a
22 time period irrelevant to this case.
23 MR. BAUGH: Not all of the pictures relate to a time
24 period. I can tell you that the Web sites do. The Web sites
25 relate to a time period subsequent to August 1998. The
6905
1 photographs, some of which you can't date them, are rather
2 older. We do have some pictures, a videotape, from prior to
3 August 7, 1998, the 60 minutes tape, for instance. They talk
4 about stunted growth, they talk about malnutrition. They
5 don't talk about birth defects.
6 THE COURT: You can't get a health expert to testify
7 as to health conditions in Iraq attributable, arguably, to
8 sanctions?
9 MR. BAUGH: The answer is no, and if I may add just a
10 bit to it, I actually called the health experts that are on
11 the tapes that we have and have spoken with them personally
12 and Miss Morales went and talked to them face to face, and
13 they said no. They said we are dependent upon funding. No.
14 I don't think you really appreciate how hated Usama
15 Bin Laden is -- well, maybe you do. He is the bogeyman.
16 THE COURT: He probably would be pleased with that.
17 MR. BAUGH: He didn't return my calls. That was
18 sarcasm, I am sorry.
19 THE COURT: If that's facetious, there are an awful
20 lot of people who started writing.
21 MR. BAUGH: To give you an idea so you don't think we
22 have been wasting our time, I managed to obtain the personal
23 fax number for the Dalai Lama to determine if he knew anything
24 about this. We got his personal fax number to see if he would
25 come testify about his knowledge of the conditions. That's
6906
1 the kind of work we have been doing. He didn't turn us down
2 but we were told by his secretary that he is booked for the
3 next three years.
4 THE COURT: Are you telling me that if I sat down
5 with a publication listing the faculties of political science
6 for Mideastern affairs in major American universities I could
7 not come up with someone who would disclaim any personal
8 partisanship with respect to these issues but would talk
9 objectively about what is said by proponents allied with Bin
10 Laden? That cannot be done?
11 MR. BAUGH: No. I found one. He was dry as toast
12 and I wouldn't want to subject you to his testimony.
13 THE COURT: You know, dry as toast, the fact that a
14 witness may be dry as toast is really not a justification for
15 what we will mark as -- do you have another copy?
16 MR. BAUGH: Yes.
17 THE COURT: -- what we will mark as Court Exhibit A
18 of today's date, which is the proffered exhibit.
19 MR. BAUGH: It's not just enough that the testimony
20 get on. It must be convincing. This jury has been very
21 patient. They have taken very skillful notes. As I told them
22 in my opening, it would literally take weeks if not months of
23 lecture to understand what we are talking about, the whole
24 dimension here. I won't tell you the name of the guy who said
25 he would do it -- and I met with him for a long afternoon and
6907
1 I couldn't use him. But I will tell the court without any
2 hesitation that Ms. Morales and I have spoken to a lot of --
3 in fact as recently as lunchtime she was on the phone trying
4 to get a person of prominence to be here.
5 Lastly, if I might, the tragic evidence which we had
6 to listen to today -- and it had to be tragic, because it is a
7 tragic situation. What has happened there and everything
8 about this case, and I mean globally, is of a dreadful,
9 dreadful dimension, not just on the personal level, which is
10 dreadful, but it is vast and it has been going on for years.
11 If this jury can handle the information that they got today
12 with the confidence of this court that it will not prompt
13 emotionalism to predominate in their deliberations, if you can
14 sit there and listen to this and say I have every confidence
15 that the emotional aspects of this issue will not get in the
16 way of this defendant's rights, then I don't think those
17 pictures are a problem. I have that much confidence in the
18 jury.
19 THE COURT: There are lots of problems with those
20 pictures. Apart from their being what I refer to as gore for
21 the sake of gore, they are just so remote that -- I am
22 hesitating because I want to say something totally
23 counterproductive. That's your role, not my role.
24 MR. BAUGH: Thank you.
25 THE COURT: Were I made to look at these pictures and
6908
1 then learn that they had never been seen by the defendant,
2 were never published prior to the defendant, that there is no
3 representation as to their accuracy or their real relevance, I
4 would be very resentful.
5 MR. BAUGH: I have a similar problem with it, and
6 believe me, if I had someone who would fix it so I wouldn't
7 have to this, I would.
8 THE COURT: I know, I know that there are professors
9 of political science in major universities who are generally
10 regarded as being opposed to the American position with
11 respect to Iraq and to be spokespersons for the Iraqi
12 government, and you are telling me that there is no one in
13 that category who is willing to testify?
14 MR. BAUGH: I am telling you that with one exception,
15 every professor or scholar who we spoke with about this either
16 told us or asked us not to bring them and put them in that
17 box. Not only professors, people trained in the Harvard
18 School of Medicine, people who have conducted medical surveys
19 at the request of the World Health Organization, people from
20 the Council of Churches have told us they do not want to be
21 associated with the defense in this case. I mean, some of
22 them told us nicely and they were very sympathetic and they
23 understood the position.
24 THE COURT: I am going to throw out an idea, and I am
25 making a terrible mistake in doing it because one shouldn't
6909
1 throw out an idea which --
2 MR. BAUGH: May we approach the bench for this idea?
3 THE COURT: No. The question is whether in the
4 circumstances of this case, for the limited purposes which
5 would be set forth in writing, they would appear as a court
6 witness.
7 MR. BAUGH: We tried that -- not as a court witness.
8 I did offer several --
9 THE COURT: As a witness for Al-'Owhali but with a
10 preamble that would disclaim their being volunteers or their
11 expressing any view, and limiting their testimony to their
12 knowledge with respect to the type of information, I think you
13 agreed to the term propaganda --
14 MR. BAUGH: Yes, I did.
15 THE COURT: -- to which Mr. Al-'Owhali would have
16 been subjected or would have had access if he sought access
17 during the period of time when he was volunteering to serve on
18 a mission.
19 MR. BAUGH: Your Honor, I will call that person
20 today. I will. I will do that. If that is an offer of the
21 court --
22 THE COURT: Does the government have any objection?
23 MR. FITZGERALD: Your Honor, is this a preamble out
24 of the presence of the jury or in the presence of the jury?
25 THE COURT: No, that would be -- I think one could
6910
1 work out a series of questions which would make clear that the
2 witness was not testifying as a volunteer, that he had been
3 subpoenaed, that he was not expressing his personal views with
4 respect to the merits -- let me just, to use shorthand so we
5 know what we are talking about -- a pro Iraqi/Bin Laden point
6 of view as distinguished from the American point of view, and
7 that his testimony was going to be limited to the objective
8 fact of what information or claims or propaganda was being
9 promulgated in the Middle East during the period when
10 Mr. Al-'Owhali volunteered for a mission.
11 MR. FITZGERALD: My concern on that, your Honor, is,
12 at the time that Mr. Al-'Owhali volunteered, from '96 to '98,
13 he was principally in Afghanistan. I could hand up some
14 exhibits. We already have in evidence, and Mr. Baugh proposes
15 to put in more, of Mr. Bin Laden's statements, which is
16 directly what he was exposed to, and evidently from downloads
17 from Hazzam Publications for Jihad and Mujahideen, and I am
18 wondering, if that is what he was exposed to, that is what he
19 was exposed to.
20 THE COURT: Why isn't that a valid point, that
21 obviously the predominant influence in Mr. Al-'Owhali's life
22 has been Bin Laden and Al Qaeda, and why isn't what they have
23 said the best evidence, which I am using not in the technical
24 sense, the most persuasive evidence with respect to the
25 influences upon him?
6911
1 MR. BAUGH: First, in answer to your question
2 directly, one is that pictures are worth a thousand words.
3 Number two, we do plan to talk about Mr. Bin Laden. And also
4 thirdly, as an example of restraint on my part, you have a
5 copy of the ABC News interview with Usama Bin Laden -- I don't
6 know the exhibit number.
7 THE COURT: Yes.
8 MR. BAUGH: If you look at the second full answer by
9 Mr. Bin Laden, the sentence starts with the word Clinton. It
10 says Clinton stands for Qana --
11 THE COURT: Which is the date of this interview?
12 MR. BAUGH: May 28, 1998, and it is the second Bin
13 Laden paragraph, praise be to Allah, about six lines down, a
14 sentence that begins Clinton stands after Qana and defends the
15 horrible massacre that severed the heads of children and
16 killed about a hundred persons.
17 I have found the pictures that are made mention of
18 here, that obviously Mr. Bin Laden saw. I have pictures of
19 Israeli soldiers picking up dead children with severed heads
20 in Qana and my client was present during this interview. I
21 can't say he saw the picture but the photograph that is
22 discussed in that sentence, we've got it and I told Ms. Brown
23 not to copy it because it is that horrible. But we have that
24 picture, and obviously it has been made mention of. And I do
25 happen to know, without violating attorney-client -- my client
6912
1 has seen -- yes, and they are that horrible. I have a picture
2 of an Israeli soldier in uniform holding up a child in pajamas
3 and what was the head hanging off two pieces of flesh. That
4 picture is on the Internet and it is described accurately here
5 with Mr. Bin Laden and it was obviously described with my
6 client in his presence.
7 THE COURT: Then what you have said is that you have
8 access to a significant body of evidence and significant body
9 of emotionally charged photographs --
10 MR. BAUGH: That was an understatement.
11 THE COURT: -- where there is no time problem and
12 there is no problem of your client's exposure. I don't see
13 any earthly reason to subject this jury to deformed babies.
14 MR. BAUGH: I don't mean to sound -- I guess I do
15 mean to. I have trouble agreeing that the concern is
16 subjecting the jury to it. This jury, when Mrs. Aliganga
17 testified today, I cried. When Mr. Fitzgerald asked her that
18 last question --
19 THE COURT: He cried.
20 MR. BAUGH: -- he cried. And further, when he asked
21 the question about what --
22 THE COURT: So you're in a contest as to who can cry
23 more and people who cry over pictures of deformed babies?
24 MR. BAUGH: No, your Honor, I am not in a contest.
25 Actually I am challenging you by saying, having heard that
6913
1 testimony, how can you say that those pictures cause you to be
2 concerned about these jurors being subjected -- they were
3 subjected to gut-wrenching pain and suffering today and you
4 said it wasn't prejudicial.
5 THE COURT: I don't know how you are using
6 prejudicial. Are you really equating the impact on victims of
7 acts for which your client has already been convicted, are you
8 really equating that with pictures of deformed babies born in
9 Iraq years after these events?
10 MR. BAUGH: Your Honor, DNA problems normally don't
11 pop up in one generation. The depleted uranium was first used
12 in that theater in 1991, and the health incidence issues
13 there, some of the health issues arose that year, according to
14 the World Health Organization. They continue to this day.
15 They did not occur prior to that.
16 THE COURT: I will sustain an objection to what we
17 have marked as Court Exhibit A on the grounds that they have
18 never been seen by the defendant. There is no claim made that
19 they relate to matters that he knew of or was aware of at the
20 time that he decided to go on this mission. I don't
21 understand there to be an objection. The government is
22 calling my attention to the fact that there are statements
23 made by Bin Laden in the defendant's presence which deal with
24 facts and circumstances of which he was aware, or was aware of
25 simply by listening to the leader of the organization with
6914
1 which he was affiliated.
2 MR. BAUGH: And on the lack of remorse issue, your
3 Honor? On the issue of why my client still might think that
4 his behavior was necessary because he knows that stuff
5 continues, the stuff contained in those pictures continues?
6 He sits here in this courtroom in the United States of America
7 charged with a horrendous crime, facing death, and he sits
8 here, and while I can tell the court he is probably -- I mean,
9 today he told me to sit down and not make an objection, so
10 obviously he is concerned about this. But as far as
11 exhibiting what you would call or what I might call a classic
12 absence of remorse -- a classic presence of remorse such as an
13 apology, the fact that he doesn't do that, the existence of
14 photographs and information like that, the fact that --
15 according to people in those organizations this does
16 continue --
17 THE COURT: But he is telling you, you are telling me
18 that he has seen material which supports this, that he has
19 heard his leader making these statements. So that in terms of
20 evidence of lack of remorse, I don't -- what evidence is the
21 government going to rely on for lack of remorse?
22 MR. FITZGERALD: The photograph taken and shown to
23 the jury that was taken in Nairobi, Kenya, in August of 1998.
24 MR. BAUGH: Your Honor, it is my recollection that
25 that photograph was at best staged, that he was told to do
6915
1 that. I mean, I have a hard time believing that a gentleman
2 who has been held in these conditions for that long and
3 somebody says we have a camera and he puts up his hands in the
4 classic Jim Thorpe dispute -- yes, before confession. I find
5 it hard to imagine that that was a spontaneous action. I know
6 that my cocounsel very vigorously cross-examined the
7 government agent on that issue and similar issues. And the
8 government says that's a sign of lack of remorse.
9 My client does know that according to the World
10 Health Organization, that since this trial started with jury
11 selection, since January 3, children have been dying in Iraq
12 at the rate of about 6,000 monthly. It works out to about 250
13 a day, and that is according to the UN. He does know that.
14 THE COURT: If you want to argue to this jury that
15 the death rate of children in Iraq is a factor that they
16 should take into consideration in determining the sentence to
17 be imposed in this case, that's an argument that you can make.
18 MR. BAUGH: Excuse me, your Honor. You dropped off.
19 THE COURT: That's an argument that you can make.
20 It's not my role to evaluate the persuasiveness or
21 counterproductivity of such an argument.
22 MR. BAUGH: However, in addition to the deaths of
23 children, he also knows that the conditions that have caused
24 that country to fall apart continue, and birth defects have
25 increased since the United States used -- I don't know if the
6916
1 court is familiar with what depleted uranium is.
2 THE COURT: You know, I am not an expert on
3 American-Iraqi relations and it is probably just as well,
4 because any expertise on my part on the subject would be
5 irrelevant. I do have some general knowledge of the sanctions
6 and of Hussein's refusal to permit inspections and the
7 American belief that the inspections are necessary because of
8 the threat of chemical and biological warfare, and my
9 knowledge of that matter is probably no greater nor less than
10 that of many of the jurors. If you are going to fight the
11 Iraqi war before this jury, I am not going to stop you. But I
12 am going to, as I have said, not permit really irrelevant gore
13 for the sake of gore.
14 MR. BAUGH: Thank you, your Honor. If I might, your
15 Honor, for one minute. Your Honor, your statement that seems
16 to state that the actions being perpetrated against the Iraqis
17 is because Saddam Hussein will not allow the United Nations
18 and the United States to conduct certain tests. To kill
19 people in another nation in order to influence their political
20 decisions under Title 18 of the United States Code is called
21 genocide. You can't do it. Even under our laws you can't do
22 it. And what you just described as happening is happening.
23 You just by your statement said the United States is killing
24 civilians in Iraq to make their dictatorial evil boss do
25 things, and that's against the law.
6917
1 THE COURT: No, but I did not say the United States
2 is killing children in Iraq.
3 MR. BAUGH: I thought you said --
4 THE COURT: No. I was paraphrasing your claim.
5 MR. BAUGH: Forgive me. Good authority cites it.
6 MR. FITZGERALD: Which leads me to my point, your
7 Honor. One of the things that the government objected to in
8 yesterday's opening is that Mr. Baugh in presenting facts to
9 the jury was presenting the fact of certain numbers of people
10 being killed by the United States government on a monthly
11 basis. My understanding is that the relevant issue here is
12 Al-'Owhali's subjective state of mind. We put on the record
13 before, we are not going to challenge the genuineness of
14 certain of his beliefs, that he believes certain things to be
15 true. It appears from Mr. Baugh's opening and from some of
16 the presentation that he is setting about to prove what
17 happened in Iraq, even depleted uranium, which he concedes
18 hasn't been shown to lead to birth defects. I think we ought
19 to understand that the relevance is what Mr. Al-'Owhali
20 believed and the jury can weigh that, but to argue the facts
21 and say that certain numbers of people are killed by the
22 United States is irrelevant.
23 THE COURT: Do you agree that the relevant
24 consideration for this jury with respect to Mr. Al-'Owhali's
25 state of mind at the time of these events and with respect to
6918
1 lack of remorse is limited to that of which he has knowledge?
2 MR. BAUGH: No. In our mitigators we allege that he
3 was motivated by his belief that his actions would stop
4 terrorism, genocide, violations of international law and what
5 not. I would say that his position on proving that mitigator
6 is much stronger if there is evidence to support his belief
7 that genocide and terrorism and violations of international
8 law are going on.
9 THE COURT: If he believes it, isn't it your stronger
10 position, your vastly, vastly stronger position that whether
11 it is true or not is irrelevant, what is relevant is what he
12 believed?
13 MR. BAUGH: No, your Honor, I don't believe that.
14 And further, I don't believe that you would think I put it on
15 because I think it is a reasonable position to take. No. I
16 believe that if the United States, if my country is
17 perpetrating these acts and we have people around the world
18 who are challenging us because of it, then I think that gives
19 him a validity that he normally would not have, and I believe
20 that under American law his position is valid, and I believe
21 it does positively impact on whether if the country that is
22 trying to kill him does the same thing I think it impacts on
23 whether or not his death is the appropriate sanction, to kill
24 this young man when according to the World Health
25 Organization, not exactly a Commie group, according to them
6919
1 our sanctions have killed a million and a half people since
2 1991.
3 THE COURT: And do you think that it's appropriate to
4 have an imposition or not of the death sentence turn on your
5 ability to convince this jury, in the limited time and the
6 limited format that you have indicated that you intend to use,
7 that their country was maliciously engaging in genocide? Do
8 you think that that is the stronger argument than an argument
9 which says whether it was right or wrong isn't the issue, the
10 issue is whether this, quote, young man, close quote,
11 sincerely believed it?
12 MR. BAUGH: Do I believe it is appropriate --
13 THE COURT: Do you really want to stake the outcome
14 of this on your ability to prove that in fact America is
15 engaging without justification in genocide, as you put it? Do
16 you think just as a matter of --
17 MR. BAUGH: Tactics?
18 THE COURT: -- tactics that is appropriate?
19 MR. BAUGH: As a member of this bar and as the son of
20 a Tuskegee airman and an American I will tell you that I would
21 trust 12 good citizens for any issue that is necessary to the
22 determination of justice. I have been doing this a long time
23 and I can tell you that I have never seen a jury cheat, ever.
24 I have seen some judges cheat but I have not had a jury cheat,
25 and I believe --
6920
1 THE COURT: That is not my question. That is not
2 cheating. There are two possible questions and you put it in
3 your mitigators, that right or wrong this is what he believed.
4 But now you are saying that you take on the additional burden
5 that he is right.
6 MR. BAUGH: Yes. Not only do I think I can do it,
7 but the young man sitting over here, who speaks some
8 English --
9 THE COURT: His ability without the interpreter when
10 he feels so inspired is something that is obviously evident to
11 the court.
12 MR. BAUGH: Your Honor, having been through this
13 before, I think if you got locked up in a Mexican jail for two
14 years, you could communicate pretty well too, if you got
15 immersed in it.
16 THE COURT: All right.
17 MR. BAUGH: I can tell the court that this young man
18 over here who had almost no connection to this nation until he
19 was brought here has entrusted his life to his Jewish lawyer
20 and his Virginia lawyer and that he trusts us and that he
21 approves of this defense and that he knows that his life is on
22 the line.
23 THE COURT: Yes, yes, but there is another factor
24 there, and that is, the reason why he told Agent Gaudin that
25 he wanted to come to America in the first place was he wanted
6921
1 to use this as a forum for his views.
2 We have engaged in a lot of philosophical discussion.
3 MR. BAUGH: Just a moment.
4 It has been suggested that I remind the court, that
5 was a hearsay suggestion, for what it is worth, that Special
6 Agent Gaudin's characterization of what was said by the client
7 was his interpretation.
8 THE COURT: I think maybe we should get more
9 abstract. I will not permit what I have marked as Court
10 Exhibit A in. Give me another specific example of something
11 that the defendant proposes to introduce to which the
12 government objects.
13 MR. FITZGERALD: Court Exhibit B will be the children
14 of Iraq in pictures, and Exhibit C is a collection of
15 photographs some of which have some gruesome bodies depicted,
16 and I will hand them up collectively, if you like, as Court
17 Exhibit C. It appears to be the same objection.
18 THE COURT: What is the source of these pictures? It
19 says Hazzam Publications for Jihad and Mujahideen.
20 MR. BAUGH: That is a Web site found by Ms.
21 Gasiorowski that is, if you type in the word jihad a bunch of
22 Web sites jump up, and these Web sites appear to be, based on
23 the language in them -- for instance, one is how can I train
24 myself for jihad? Military training is Islamic obligation,
25 not an option.
6922
1 THE COURT: And there is an organization that
2 disseminates this, and did you tell me that you attempted to
3 contact them to see if you could come up with a witness?
4 MR. BAUGH: Your Honor, it is my understanding based
5 on my reading that the people who write this, I don't think
6 they trust the United States to let them come in the country
7 and leave, so no, I didn't even try. Whoever wrote this
8 definitely hates the United States and a bunch of other people
9 as well, and the United Kingdom and some other countries.
10 Whoever wrote this is not going to walk into the United
11 States. If you read it and get the impression that they
12 would, I would disagree with you. It ain't going to happen.
13 These people hate America.
14 THE COURT: And these people have pictures of injured
15 children, and the only basis for believing where, when and how
16 these children were injured is that they were on the Internet?
17 There is an awful lot of stuff that comes on the Internet
18 which is totally unreliable. I am not applying the rules of
19 evidence, I am just trying to apply some common sense of
20 appropriateness here.
21 MR. BAUGH: Your Honor, the Hazzam Publications for
22 Jihad and Mujahideen, the children of Iraq pictures, these are
23 found on a number of Web sites. Additionally, the children
24 appear to be Iraqi, or at least Arabic. The illnesses from
25 which they suffer -- for instance, I am looking at one, a
6923
1 picture dated September 1998, taken by Chuck Quilty. This is
2 page 4 of 16 in the --
3 THE COURT: 4 of 16, yes.
4 MR. BAUGH: If you see the child up there, Dunia,
5 nine months old, has diarrhea and nutritional marasmus, which
6 is an illness, I have found out, attributable to malnutrition,
7 this 9-month-old child weighs 4 kilos, suggested weight would
8 be 8 kilos, which is about 40 pounds. I can tell the court
9 that when you review the videotapes from 60 Minutes, you will
10 see children suffering from these ailments.
11 THE COURT: So if you've got that and there is
12 somebody there on that tape who says we filmed this in Iraq
13 and this is when we filmed it --
14 MR. BAUGH: Yes, your Honor, and further, the same
15 man that took that picture of this child, which has the same
16 ailment as on that tape, also took one of the birth defect
17 pictures that is contained in that same article.
18 THE COURT: You have, from another -- what program
19 was it?
20 MR. BAUGH: 60 Minutes.
21 THE COURT: Most watched program in America. And you
22 have somebody who indicates where and when this took place --
23 is there objection to the 60 Minutes tape?
24 MR. FITZGERALD: We haven't been provided a copy
25 yet -- we have been provided 15 tapes and we are supposed to
6924
1 be told which 6 will be offered.
2 MR. BAUGH: I was going to tell you today because we
3 have been working. All 15 tapes don't come to more than 6
4 hours of information.
5 THE COURT: How many hours of tapes are you planning
6 to put on?
7 MR. BAUGH: As few as humanly possible and still get
8 the point across. Believe me, that's why we are meeting this
9 weekend.
10 THE COURT: Let me assist you then in making that
11 decision.
12 MR. BAUGH: Is that an offer or demand?
13 THE COURT: It's a statement of fact, that I will not
14 permit pictures of children in a war dying of malnutrition
15 where there is no indication of authenticity other than the
16 fact that you got them off a Web site when you tell me that
17 you have videotapes the authenticity of which is demonstrated
18 by their 60 Minutes producer spokesman.
19 MR. FITZGERALD: Your Honor, not having reviewed the
20 specific tapes I also want to preserve -- we may have,
21 obviously, an objection under 3593. First of all, I don't
22 know if there is a contention that Mr. Al-'Owhali watched 60
23 Minutes in Afghanistan.
24 THE COURT: What is the date of the broadcast?
25 MR. BAUGH: May 12, 1998 or June -- it immediately
6925
1 preceded the bombing.
2 MR. FITZGERALD: Mr. Al-'Owhali's statement was that
3 he was there for Mr. Bin Laden's conference. There is no
4 statement that he sat around in a room and watched Morley
5 Safer and the gang in 60 Minutes. The standard is whether or
6 not the unfair prejudice outweighs, not even substantially
7 outweighs. Until we view the tape I don't want to waive any
8 objection.
9 THE COURT: You are not waiving the objection. But
10 if in fact the 60 Minutes tape is not admissible, I will
11 review that. But assuming that it is, and assuming, as you
12 say it does, it is the same photographer --
13 MR. BAUGH: It is not the same photographer.
14 THE COURT: I thought that's what you said.
15 MR. BAUGH: I am saying that this picture of this
16 child, which looks like the people you see on the 60 Minutes,
17 Chuck Quilty took these other pictures. Chuck Quilty is a
18 member of an organization called Voices in the Wilderness
19 which is based in Chicago and takes care packages to Iraq. He
20 has been there repeatedly and taken pictures. Voices in the
21 Wilderness is under almost a million dollar fine now for doing
22 that.
23 THE COURT: Imposed by whom?
24 MR. BAUGH: The United States government. The people
25 at Voices of the Wilderness do not even want to take phone
6926
1 calls discussing this because they believe their phones are
2 being monitored. They will not even give us their pictures,
3 they are that fearful.
4 THE COURT: What else? I think we have made a
5 ruling -- we haven't marked these -- children of Iraqi
6 pictures, and then we have miscellaneous pictures -- I don't
7 know where they came from. Where do these photographs come
8 from? How do I identify these photographs?
9 MR. BAUGH: Might I suggest this. Might I suggest
10 that I go through and tag them and tomorrow after the
11 government has viewed the videotapes, that we come in and hash
12 these all out, because we will have to come back and talk
13 about the videotapes anyway.
14 THE COURT: Not tomorrow, Monday at 9:00 a.m.
15 MR. BAUGH: It's a collection of videotape photos
16 from Qana Web sites and jihad Web sites, and there are
17 Panamanian pictures here taken off a Panamanian documentary,
18 and however you want to number it or name it -- we can call it
19 one exhibit, clip them together and go from there.
20 MR. FITZGERALD: Your Honor, I will add to that set
21 of miscellaneous photographs, I think three photographs folded
22 in triplicate. I think they are only different in that they
23 are different sizes.
24 The other issues are, your Honor, I understand that
25 Mr. Baugh may wish to put in some sections from Title 18,
6927
1 which are the definition of terrorism and genocide and from
2 what I gather from his argument, that he will argue that the
3 United States is engaged in genocide, which we obviously
4 vigorously dispute and don't think that Title 18 has formed
5 any part of Al-'Owhali's subjective state of mind.
6 MR. BAUGH: Your Honor, that is not the standard. We
7 have gone way beyond that. That is not the issue here. We
8 have already been through that, period.
9 THE COURT: What is the relevance of that statute?
10 MR. BAUGH: The relevance of the statute, your Honor,
11 is to determine whether or not this person, whether or not the
12 United States is engaged in genocide.
13 THE COURT: And the language of the statute, is that
14 something which Al-'Owhali has considered in determining
15 whether or not to blow up the embassy?
16 MR. BAUGH: Your Honor, I don't know why the United
17 States and the court insist on -- the circumstance of what is
18 admissible under 3593 includes --
19 THE COURT: No, no, please answer my question. My
20 question is, does the language of that statute, is that a
21 factor which entered into his thinking with respect to any of
22 these issues?
23 MR. BAUGH: No, but it is a circumstance of the
24 offense. It is a circumstance of the offense. It is a word
25 that is defined in American law, and number two -- thank you,
6928
1 counsel -- it has to do with comparative conduct, which is
2 always a subjective issue available to a jury in determining
3 whether or not a person should die. It doesn't have to amount
4 to a defense of necessity or self-defense or defense of third
5 persons. Even if it falls short of that legal definition,
6 even if it is no more than comparative conduct it is
7 admissible. That is case law.
8 The purpose of this offense, according to the
9 government's evidence, it wasn't directed against any
10 individual, it was directed against the United States of
11 America. If the United States of America is engaged in
12 comparable conduct or comparative conduct, that is a
13 circumstance of the offense that should be presented. To
14 sabotage one end of the equation to the benefit of the United
15 States -- yes.
16 MR. FITZGERALD: Your Honor, I believe earlier in
17 voir dire a letter was sent indicating that there might be a
18 defense of duress or justification and it was placed in the
19 record that that was not the defense. We asked whether it was
20 nullification, it was indicated that was not the defense. We
21 said we wouldn't dispute the objective reasonableness of his
22 beliefs if it is stated to be subjective. If he is going down
23 the road to prove up why Iraq is angry against the United
24 States and we then have a rebuttal of what Iraq did to the
25 Kurds, we will be here going down history one after the other.
6929
1 THE COURT: Would it be, assuming there were no
2 restraints of time --
3 MR. BAUGH: There aren't any restraints of time.
4 THE COURT: Would it be an appropriate rebuttal case
5 for the government to call an expert who would say the reasons
6 for the sanctions in Iraq are X, that the conduct in which
7 Hussein is engaged include chemical warfare against the
8 Kurds -- is that the other side of the coin that you think --
9 MR. BAUGH: If they want to bring Madeleine Albright
10 in here, who I tried to subpoena and they oppose to, I, at the
11 risk of sounding juvenile, dare them to try.
12 THE COURT: I think the point that the government is
13 making is that if in fact your side of the coin is appropriate
14 here then the flip side of the coin may be equally
15 appropriate.
16 MR. BAUGH: If you allow me to have Madeleine
17 Albright, they can take it.
18 THE COURT: I am not going to do any of that, sir.
19 What I am going to do is, I am going to permit you to show
20 that at the time Al-'Owhali engaged in these acts he was
21 exposed to a climate and to an environment which is epitomized
22 by the contemporary statements made by his leader Bin Laden.
23 I will permit you to show things which support his belief and
24 understanding as to the conduct in which the United States was
25 engaged, as demonstrated by matters the authenticity of which
6930
1 is reasonably, reasonably available. That means not an
2 anonymous source on an Internet.
3 MR. BAUGH: Of course.
4 THE COURT: But a recognized publication, a
5 recognized broadcast.
6 MR. BAUGH: I will tell the court, one of the tapes
7 we did pick up is a documentary of the history of the Middle
8 East going back to the turn of the century. Unfortunately,
9 the movie was just released two weeks ago. It premiered in
10 New York and we were able to get a copy of it. It is a
11 one-hour documentary.
12 THE COURT: This is not the PBS Islam?
13 MR. BAUGH: No, not that one. That is back ordered
14 and -- it was too voluminous. We have given a copy to the
15 United States. We bought several copies of it.
16 MR. FITZGERALD: The problem we have, your Honor, is,
17 the trial should not be about world history, it is about what
18 was in Al-'Owhali's mind, which is why we are asking for any
19 further specification of the 15 videotapes, which we will
20 spend a day in court watching things on TV which are not
21 pertinent to the crimes of the defendant.
22 THE COURT: My statement, is that sufficiently
23 illuminating for you to --
24 MR. BAUGH: It's fine with me. It bothers me that it
25 is not definitive, and it can't be. Maybe we ought to sit
6931
1 here and play some tapes. I don't mind. But the thing is, I
2 understand the court is saying, Mr. Baugh, don't you have this
3 in another forum that you can present that might be better,
4 and I have proposed this before, we can put -- we can do that
5 but I only get one shot. So I have to put on as much, and the
6 quality I can get.
7 THE COURT: And you have to make a judgment as a
8 seasoned litigator, having a very, very heavy responsibility,
9 of what the proper quantum and quality is of the material that
10 you present.
11 MR. BAUGH: Your Honor, believe me, I have done it
12 before, and I am proud to say, your Honor, I have done it
13 before.
14 MR. FITZGERALD: Judge, his opening yesterday on Iraq
15 and Panama, first of all, I can see Al-'Owhali's subjective
16 belief about Iraq could be relevant, but beyond that, talk
17 about a 403 standard, much less the lesser standard, of a
18 mini-trial of history, that we are going to get into Panama.
19 The relevance --
20 THE COURT: What was the reference to Panama?
21 MR. BAUGH: One of the aggravators alleged by the
22 United States is that my client showed a certain disregard for
23 the safety of others who were not his target. We pulled that
24 tape. There is a documentary called Panama Deception, with
25 photographs taken in Panama, alleging and showing pictures,
6932
1 some of which we have in this pile, showing when the United
2 States went to arrest Manuel Moriega, we killed 2 to 3,000
3 Panamanians. If the United States sees nothing wrong with
4 killing Panamanians to pull off a political objective --
5 THE COURT: If you succeed, sir, in convincing the
6 jury that actions taken by the United States military in an
7 authorized military action --
8 MR. BAUGH: Authorized by who? There is no
9 declaration of war on Panama. It isn't.
10 THE COURT: -- are comparable to the conduct in which
11 the jury has found that the defendant has engaged, you will
12 have engaged in a herculean task.
13 I don't want to intrude on your responsibility to
14 defend your client according to your judgment and his
15 reasonable input into what you are doing, and I am very
16 cognizant of the fact that the rules of evidence don't apply
17 and I am also cognizant of the fact -- don't apply but the
18 court nevertheless has to exercise some control over what is
19 presented. And I am also very cognizant of the fact that
20 obtaining witnesses on your client's behalf is not an easy
21 matter.
22 If you want to play tapes now, I am prepared to watch
23 tapes. I am not available tomorrow. I have among other
24 things a long postponed medical appointment which I do not
25 think I should postpone any longer.
6933
1 MR. BAUGH: I am available any time between now and
2 Monday to show these things so that you can make a
3 determination --
4 THE COURT: I would think the government should see
5 them in the first instance, and shall we meet earlier than
6 9:00 on Monday?
7 MR. BAUGH: Do you want to meet Saturday or Sunday?
8 MR. FITZGERALD: Whatever you want, Judge. If they
9 can give us guidance as to which of the 15 videotapes, we will
10 look at them first priority. My frank concern is, if we show
11 up Monday whatever time we start, the first exhibit that goes
12 up, I have a feeling we will have a very stark disagreement.
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
6934
1 THE COURT: That may be helpful. What is the first
2 order of business on Monday?
3 MR. BAUGH: The first tape we would show, your Honor,
4 is one called Hidden Wars which was just released from
5 California.
6 THE COURT: How long will that run?
7 MR. BAUGH: That tape is 64 minutes.
8 THE COURT: You are going to play it in it's
9 entirety, 64 minutes?
10 MR. BAUGH: The next one is the 60 Minute portion
11 Madeline Albright and that's about 15 minutes long.
12 THE COURT: Yes.
13 MR. BAUGH: There is one called The Koran and the
14 Kalashnikov and we obtained that from Georgetown, and it's a
15 documentary.
16 THE COURT: Tell me again your estimate as to how
17 long the defendant's presentation will be?
18 MR. BAUGH: One day.
19 THE COURT: You do all this in one day?
20 MR. BAUGH: Yes, sir. Maybe a little bit more, but
21 yes, one day, maybe a day and a half, depending on how much
22 objection there is, but yes. We have a few witnesses, we're
23 trying to track down a few witnesses still and some tapes.
24 There are two other. I think it's call the Secret War. I
25 don't see it.
6935
1 THE COURT: 8:30 Monday.
2 MR. BAUGH: Yes, sir. Within one hour I will give
3 the United States the names of the other tapes.
4 MR. FITZGERALD: Judge, a couple of reservations. I
5 don't know if there are any expert witnesses among the three
6 witnesses. We'd want 3500 material for the other.
7 THE COURT: Wait a minute. I'm handed an order. Let
8 me read it. This is the order extending the time for
9 posttrial motion to August 27, and it says on consent of the
10 United States of America.
11 MR. GARCIA: That's correct, Judge.
12 MR. COHN: Your Honor, if you give me the original
13 order back I'll back it up and we'll file it.
14 Thank you, your Honor.
15 THE COURT: What I think we should do is that you and
16 the government should, in the sequence in which you want to do
17 them, review them so that I can, starting at 8:30 Monday
18 morning deal with any objection. You are going to give him a
19 book, right?
20 MR. BAUGH: He already has a copy of the book.
21 THE COURT: But you are going to have on the front
22 cover of that book something which indicates the specific
23 pages that you wish to have read?
24 MR. FITZGERALD: I think we would object to that.
25 First of all, there is in one of the website articles there is
6936
1 a discussion of Islam and jihad from the perspective of
2 mujahideen. This is just a teach yourself Islam book. I
3 don't know to send the jury in a book and tell them read what
4 you like. But I didn't know what this is pertinent to. This
5 is not a mujahideen version of Islam. It is not the version
6 of the Islam that Usama Bin Laden espousing in May of 1998
7 when Al-'Owahli was there and it certainly isn't a version of
8 Islam.
9 THE COURT: What is it?
10 MR. BAUGH: First, it's offered as a resource. It is
11 offered as a resource.
12 THE COURT: What does that mean?
13 MR. BAUGH: For people who do not have an
14 understanding of Islam and don't want to sit through several
15 hours of lectures trying to understand it there is a good
16 glossary in there. There is a good index. It is a recognized
17 book. I got it in Barnes & Nobel. And it's not intended to
18 be a treatise, but if there is a question as to the
19 fundamentals, that's considered appropriate.
20 THE COURT: Is there a representation that the view
21 of Islam depicted in that book is that of your client?
22 MR. BAUGH: No, your Honor.
23 THE COURT: Then what is it?
24 MR. BAUGH: It is considered to be a -- your Honor,
25 if I can answer your question with a question. I don't mean
6937
1 to be rude. But if there was a book called Teach Yourself the
2 Bible, do you really expect that that book would conform with
3 everybody's interpretation of the Bible? Of course not.
4 Islam is just as complex if not more complex than
5 Christianity. There are more than one viewpoint.
6 This is just a resource showing quotes from the
7 Koran, some historical things, and they are relatively
8 objective. It's not voluminous reading. That's why we
9 suggested it. Their witness said on cross-examination, you
10 can't understand this without understanding Islam, and believe
11 me, contrary to what counsel may have said in closing, a lot
12 of this case is about Islam. It is. And it has to do with
13 the perceptions that Americans have.
14 THE COURT: I can understand it being offered for a
15 glossary, although I don't know that a glossary is
16 particularly helpful here. And I'm aware of the fact we know
17 from testimony that we heard in the guilt phase that there are
18 many schools of thought and factions within Islam.
19 MR. BAUGH: Just take a look at it. I think you'll
20 find it's very noncommittal, but it is enlightening and it
21 will give you, it will give you the ability to, to take some
22 of the mystery and some of the bogeyman aspects out of this
23 religion.
24 THE COURT: You know sitting here I'm merely trying
25 to understand your theory, because you lay out in the broadest
6938
1 possible terms what is that you expect to convince this jury
2 to believe and you disclaim the notion that what is relevant
3 is not merely your client's state of mind with respect to the
4 role of America, his beliefs right or wrong, but that you can
5 show that his beliefs are right, and having projected that
6 tremendous task you say, and this is going to be two days, and
7 you're going to play the first tape of which takes an hour --
8 MR. BAUGH: 64 minutes.
9 THE COURT: But I do understand correctly that is
10 what you are saying you are going to do?
11 MR. BAUGH: Yes, your Honor, I do. You understand
12 correctly.
13 THE COURT: All right.
14 MR. BAUGH: By the way, you also made a very nice
15 offer by a subpoena, a court disclaimer and a subpoena.
16 THE COURT: To work if you get somebody who says, I
17 am prepared to testify as to my knowledge of the propaganda
18 wars that were being waged in the Middle East and I can
19 testify as to what the pro Iraqui, pro Bin Laden people --
20 MR. BAUGH: Anti-American.
21 THE COURT: -- anti-American people were
22 disseminating so long as it is clear that I am not a volunteer
23 and that I am not doing anything but serving as an objective
24 reporter as to what the media was saying at that time.
25 I would be inclined to permit such a witness to be
6939
1 called and to permit such a disclaimer to be made either in a
2 stipulation or by an agreed preliminary Q and A. Would you
3 have objection to that?
4 MR. FITZGERALD: I would like to see the Q and A. It
5 doesn't unfairly endorse the witness, but I understand the
6 objection.
7 THE COURT: What the Q and A will say: I am not a
8 volunteer. I am not a partisan. I am somebody who has
9 professionally made a study of the Middle East. I am familiar
10 with what the media and observed the spokesmen for the various
11 factions were spewing out at the time, and I can say that
12 there was, for example, if it's the case, that there was a
13 broad dissemination to the Arab world that America was engaged
14 in atrocities against children in Iraq during this period of
15 time.
16 MR. FITZGERALD: When this came up before your Honor
17 I pointed out when the defendant chose the mission was in
18 Afghanistan and we only had the proof of what the person he
19 was listening to had said. If there is an expert who is
20 needed who won't testify, but to something like that we're
21 open to consider it as long as the government doesn't feel
22 that someone is not assuming the mantle of objectivity when
23 they really are not, but we're open to consider that.
24 If I could also note there are a few other exhibits.
25 One I'll hand up is a copy of a Seattle Post Intelligencer
6940
1 special report on Iraq for May of 1999. I'm not sure for
2 which purpose this is offered.
3 THE COURT: Al-'Owahli is offering?
4 MR. FITZGERALD: Yes.
5 MR. BAUGH: I do not even know the admissibility of
6 this. The photograph in here are taken by Mr. Chuck Rodean,
7 the same photographer with post dates it, it is called Life
8 and Death of Iraq. It reveals photos by Dan DeLong and
9 published in the Seattle Post Intelligencer in May of 1999,
10 and some of the pictures that are in here appear in various
11 websites so we received it from an organization. I don't know
12 how I'd even get it in, but I'm offering it. I mean I'm
13 offering it to the United States as some material. I do not
14 know how I can get this in, but --
15 THE COURT: Maybe you'll tell me Monday morning.
16 MR. BAUGH: Maybe it will come to me by Monday
17 morning.
18 MR. FITZGERALD: Next is a report from Amnesty
19 International on Saudi Arabia and I don't know for what
20 purpose that is offered as I don't know I've heard in evidence
21 here a claim made that Amnesty International's views informed
22 in any way al-'Owahli's participation in the offense.
23 MR. BAUGH: As the Court is well aware, you may have
24 noticed that Mr. Al-'Owahli's family members are not here in
25 court; also aware of the correspondence that was sent back in
6941
1 July of last year by my co-counsel to the Court because of
2 certain communication problems, and this document merely is
3 the result of the Amnesty International investigation into the
4 political situation in Saudi Arabia, and how they are not a
5 particularly free society. And it would explain I believe the
6 correspondence that my client had, my co-counsel had with the
7 ambassador to Saudi Arabia about my client not getting mail,
8 his mail not being delivered to his parents, our inability to
9 communicate with family members. We believe that will clear
10 it up.
11 MR. FITZGERALD: Judge, that's one of the things I
12 found objectionable about Mr. Baugh's opening testifying to
13 the jury as to why it was that certain witnesses would not
14 testify. And if this is more down that line, I object.
15 MR. COHN: You may remember I explained to the Court
16 that there seems to be some sort of mail covering. My
17 client's letters weren't getting to his father. You said I
18 should write to somebody, take it up with the government. The
19 government suggested I write to the Saudi counsul, Saudi
20 embassy and I did. The Saudi embassy referred it back to the
21 Southern District of New York.
22 Mr. Fitzgerald tried to be helpful in some way but it
23 dropped between the cracks. There is no allegation of
24 government misconduct. I believe that a jury could infer from
25 that and other things and along with the political climate
6942
1 that family members were unwilling to cooperate because of
2 fear in a political climate, and I think we have to explain
3 the fact that there are no family members here to set it in a
4 more traditional --
5 THE COURT: How does this explain what the motivation
6 and concerns of Mr. al-'Owahli's family is?
7 MR. COHN: It sets the letters in context, your
8 Honor, because I am not prepared to breach the attorney
9 relationship and testify that the family said that they, it
10 was not to their advantage to come. And I believe a juror
11 could infer from that knowing something about the political
12 climate appellate, that it's not made out of whole cloth that
13 the family was afraid. And that's all it's for. It's not to
14 prove that it's a repressive government. It's for a very
15 limited purpose.
16 THE COURT: You know we know that we have some
17 extraordinarily conscientious jurors. Several of them have
18 postgraduate degree. Several of them are, if not by education
19 or occupation, persons who are extremely literate. It's a
20 marvelous crosssection. I mean every time I look at them I
21 think I compliment the lawyers who exercised their challenges.
22 You got by ethnicity, by socioeconomic standards, by gender
23 you have really a wonderful jury. How long do you think it
24 would take the slowest reader on that jury to read all of the
25 material that you're presenting?
6943
1 MR. COHN: Your Honor, I mean right now we're just
2 talking about the report.
3 THE COURT: That's a question that really calls for a
4 very specific answer.
5 MR. BAUGH: Your Honor, I can tell the Court directly
6 that if I introduce this into evidence as information I
7 introduce it as information in my closing, I can refer to any
8 excerpt in here to offer as explanation for why --
9 THE COURT: Why don't you do that in advance? Why
10 don't you highlight and introduce that?
11 MR. FITZGERALD: I have an objection to substance.
12 He already testified once to the jury about what he --
13 THE COURT: I know I went off on a tangent, but
14 that's particularly thinking of the 250 page book.
15 MR. COHN: The Amnesty International has a very
16 limited function and one of them is just --
17 THE COURT: You are not offering the letters?
18 MR. COHN: We are but --
19 THE COURT: I haven't seen the letters.
20 MR. COHN: We are offering the letters.
21 MR. BAUGH: With the permission of the Court I tender
22 to the United States that we can find permission to introduce
23 this as we have a statement from the Saudi ambassador telling
24 us that if you want to know why your client is not getting his
25 mail, talk to the US Attorney's Office.
6944
1 MR. FITZGERALD: Your Honor, my next objection would
2 be the letter. I did not know that the embassy report was
3 tied into that.
4 MR. COHN: I thought I made that clear. Yet I was
5 once again not quite articulate.
6 THE COURT: Have you communicated in writing to
7 members of Mr. Al-'Owhali's family and have they responded to
8 you that they have?
9 MR. COHN: We communicated by fax and in fact they do
10 not respond. I have spoken to Mr. Al-'Owhali's father on a
11 couple of occasions, and he has been evasive sometimes, and
12 sometimes he's said he will call me back and he didn't. In
13 one case he said it was not to his family's advantage and I'm
14 quoting, to cooperate. It wasn't that I could not get an
15 international telephone call. I believe that they are afraid
16 but that's my belief.
17 THE COURT: But that's your belief. But that's only
18 one of any number of possible hypotheses?
19 MR. COHN: That may be, Judge, but we don't have to
20 eliminate all possibility. All we're trying to do is give a
21 plausible reason to the jury why there is no material from Mr.
22 Al-'Owhali's family which we tried --
23 THE COURT: Now there are statements by Bin Laden
24 with respect to views of the government of Saudi Arabia.
25 MR. COHN: But if you'll forgive me I join with the
6945
1 court and I wouldn't permit Mr. Bin Laden and his credibility
2 in issue before the jury. Amnesty International is a well
3 known --
4 THE COURT: I have no problem with Amnesty
5 International, and I have no objection to Saudi Arabia who is
6 characterized by Amnesty International as being a totalitarian
7 oppressive state, but absent any evidence that anybody applied
8 for a visa and was denied a visa, or absent any evidence or
9 representation, not evidence, information, representation that
10 they didn't want to come because they were violently opposed
11 to the views of Mr. Al-'Owahli and did not want to support him
12 not because of fear, but because of their conviction, I don't
13 know how the fact that Amnesty International says that Saudi
14 Arabia is a totalitarian state --
15 MR. COHN: In the context of my letters, your Honor,
16 I believe there is a permissible inference. If the government
17 wants to argue that there are other inferences and it's a weak
18 inference at best, that's the government's right. All we are
19 trying to do is prove one very small thing, that there is a
20 reason why Mr. Al-'Owhali's family is here which may not be
21 lack of support for him as a child, as their child, and why we
22 can not present reasonable evidence on his behalf.
23 THE COURT: I think that's too remote but would not
24 preclude your showing, and I believe there is documentation
25 for this and statements made, that Saudi Arabia regarded Bin
6946
1 Laden as an adversary, and took steps against him, and the
2 argument has already been made to the jury in openings that's
3 why no one was going to appear on behalf of his family.
4 MR. COHN: That's not evidence, Judge.
5 THE COURT: And this isn't evidence of that either.
6 MR. COHN: No, that's not the evidence. The
7 evidence, that merely explains, and the evidence limits as is,
8 would be subject to more than one interpretation it is true is
9 that the family, that the Saudi government was asked not to
10 cover his mail. The Saudi government didn't respond to that
11 and say, talk to the United States, the Southern District of
12 New York, and that's all we know.
13 And I think the letter at the suggestion of
14 Mr. Fitzgerald had nothing to do with evidentiary matters at
15 the time. We were trying to get Mr. Al-'Owahli in written
16 touch with his family and I sent the letter, I went to the
17 government at your suggestion and said, give me a hand. They
18 said, and we wrote to the Saudi ambassador. I was very
19 surprised to get a letter back saying, talk to the Southern
20 District of New York. And I gave it to the government and the
21 government could do nothing about it.
22 That's what that was for at the time. And all I'm
23 saying is that one could infer from that that there was, if
24 put in the context of the Amnesty International report that
25 there was reason to be afraid and the family was afraid.
6947
1 MR. FITZGERALD: Your Honor, I think that's a giant
2 stretch. My understanding is that Al-'Owahli made phone calls
3 on a regular basis from the MCC on Saturdays to his family in
4 Saudi Arabia.
5 MR. COHN: They talk about the weather.
6 MR. FITZGERALD: Your Honor, the fact that when he
7 talked about a mail cover, and we have a mail cover that
8 everyone knows about in the U.S. Attorneys Office, both
9 special administrative measures, the fact that a Saudi
10 representative said, see the US Attorney's Office to jump to
11 the conclusion, first of all, what's the relevance of persons
12 not being here? The government is not going to argue, where
13 is the mother or father? I don't know why.
14 THE COURT: The government is not going to argue. I
15 would expect that.
16 MR. COHN: I understand that but the jury will wonder
17 and it is traditional evidence in these cases that you come
18 and bring evidence of a film or something, interviews with the
19 family members, and say here he is. He's a human being. He's
20 not just a caricature of a terrorist. We were unable to do
21 that.
22 Prior counsel met with the father in Bahrain, because
23 we couldn't get into Saudi Arabia. His father wouldn't meet
24 with him there. And nothing came of it and we've been unable
25 to get -- we've sent faxes, we've called, we've had joint
6948
1 phone calls. The government and the Court were helpful in
2 setting up.
3 THE COURT: You want to give me what, a letter? Let
4 me see the letter.
5 MR. BAUGH: While I bring it up all parties know the
6 conversations are tape recorded. All the telephone
7 conversations between my client and his parents are tape
8 recorded.
9 MR. COHN: And the mail cover by the way the
10 government was concerned about it was that they were not
11 getting their letters, which is different from the government
12 reading the letters that are going out.
13 (Pause)
14 THE COURT: I thought you were talking about letters
15 to the parents that had gone unanswered?
16 MR. COHN: No, I'm talking about this is the reason
17 why the government, why they're afraid because there is some
18 sort of government action, and I say not our government, some
19 Saudi action which they're afraid of, and the only way I can
20 put that in any kind of context, I mean I could get on the
21 stand and relate the conversations, but I don't think that
22 would be a productive --
23 THE COURT: Mr. al-'Owahli does in fact talk to
24 members of his family?
25 MR. COHN: On the telephone, yes, every odd Saturday
6949
1 or so, yes.
2 THE COURT: And you say, did you write me? Is there
3 any basis to say in fact that they wrote and the letters why
4 never received?
5 MR. COHN: First of all, your Honor, I'm sure he
6 could, but I don't know how we would then prove that. But
7 that's beside the point, anymore than we can prove the fact
8 that I had conversations because I didn't take the stand
9 because I'm the attorney in the action.
10 THE COURT: No, but you can make a representation to
11 the Court that your client has reason to believe that letters
12 were in fact sent but not received.
13 MR. COHN: I do tell you that he represents that he
14 sent letters that were not received by his family. That's
15 what I'm telling you.
16 THE COURT: And the converse, that they sent letters
17 to him that he did not receive?
18 MR. COHN: That I cannot represent. He doesn't know.
19 I don't know.
20 THE COURT: I think that the record that already
21 exists would permit you to show that relations between Al
22 Quaeda and the Saudi government are very strained. You know
23 indeed one of the arguments for driving America out of the
24 Arab peninsula is that they could overthrow the Saudi
25 government which is now highly dependent on American military
6950
1 support. These letters may not be presented to the jury.
2 MR. FITZGERALD: In summary --
3 THE COURT: Nor may the Saudi Amnesty International
4 view with respect to Saudi Arabia be introduced to the jury.
5 MR. COHN: Your Honor, at some point, not now, they
6 ought to be marked as proffered exhibits.
7 THE COURT: The Saudi Arabian.
8 MR. COHN: No, that correspondence.
9 THE COURT: We'll mark as I think we marked Deformed
10 Children as XYZ. Mr. Cohn's letter to the ambassador is Court
11 Exhibit D of today's date, 31st. Amnesty International we'll
12 mark it Court Exhibit E of today's date. The Iraqui excerpts
13 from the Seattle Post Intelligencer we'll mark as Court
14 Exhibit F.
15 MR. FITZGERALD: I have a bit more left. I guess we
16 don't to start this as Court Exhibit G. It's the Iraqui water
17 treatment vulnerability report purportedly declassified. I'm
18 not sure the purpose for which it is offered. I do not know
19 of any contention that this is something to which Al-'Owahli
20 had access.
21 THE COURT: You also handed up to me I thought as
22 evidence of what was available to the defendant three groups
23 of papers one with the ABC News interview of Bin Laden?
24 MR. BAUGH: That's already in evidence.
25 THE COURT: That's already in evidence and the Allied
6951
1 genocide of children of Iraq.
2 MR. FITZGERALD: I'd like to look at the details, see
3 if any redaction is needed, but we tried to get an example of
4 some facts that comes from a mujahideen source that would
5 address some of these issues, but I can point out one other
6 thing, your Honor, there are a number of Bin Laden statements
7 produced in discovery by the government that were not offered
8 at the guilt phase of the trial from which if the defense
9 wishes to establish either further death or frequency of
10 Mr. Bin Laden's statements, they are available.
11 THE COURT: Let me give these back to the government.
12 MR. FITZGERALD: With regard to Iraqui water
13 treatment I don't know the purpose for which it is offered and
14 I do not understand there to be a contention that is something
15 to which Mr. Al-'Owahli had access at the time he chose to
16 participate in the crime.
17 MR. BAUGH: In 1991 immediately prior to the Gulf War
18 there was a memo sent from the Defense Intelligence Agency to
19 various commands of the United States military and the United
20 Kingdom and I believe also to Turkey indicating -- I can't
21 find my copy -- indicating that in the event of hostilities
22 between the United States and Iraq, that Iraq was uniquely
23 vulnerable due to the fact they only had two sources of fresh
24 water, the Tiber and Euphrates rivers, and it was dependent on
25 water purification, plant materials and gases, namely chlorine
6952
1 gases in 1991 -- here it is. It was dependent upon foreign --
2 it is dated 18 January 91.
3 First paragraph. Iraqi depends on importing
4 specialized equipment and some chemicals to purify its water
5 supply, most of which is heavily mineralized and frequently
6 brackish to saline. If you read through they talk about the
7 advantages of destroying the water purification system and
8 what would happen to it, and then it goes on to point out at
9 paragraph -- give me one moment please, your Honor --
10 paragraph 11, they talk about the waters are laden with
11 certain diseases at paragraph 11.
12 THE COURT: DIA is who?
13 MR. BAUGH: Defense Intelligence Agency. In fact,
14 when I sent a subpoena to the Department of Defense they told
15 me, go ahead an pull it off the Internet, it's been
16 declassified, it's out there.
17 THE COURT: Yes.
18 MR. BAUGH: And there is a statement in here, if you
19 give me one moment to find it that says, by the destruction of
20 this the United States can create epidemic of certain
21 illnesses and --
22 THE COURT: Paragraph 27.
23 MR. BAUGH: Thank you, your Honor. Yes, it's at the
24 bottom of the page. It says, the whole paragraph indicates
25 that unless the population were careful to boil water before
6953
1 consumption, particularly since the sewage treatment system
2 will suffer, locally produced food and medicine could be
3 contaminated.
4 THE COURT: This is an analysis of the vulnerability
5 of Iraq in the event of military action because of its water
6 supply.
7 MR. BAUGH: It would appear, your Honor, based upon
8 60 Minutes tapes and people who have been there that their
9 water purification has been destroyed, and according to the
10 World Health Organization it is primarily responsible for the
11 deaths of the children.
12 And I would also call the Court's attention to
13 another document which we tendered to the Court today, namely,
14 gave the Court a copy of the Geneva Convention which indicates
15 that even in times of war targeting -- protocol one to the
16 Geneva Convention 1977 specifically paragraph 54 states: It
17 is prohibited -- I'm paraphrasing. It is prohibited to attack
18 objects of sustenance to survival of the civilian population
19 such as food stuff, drinking water, installations and supplies
20 and irrigation works for the specific purpose of denying them
21 for their sustenance, sustenance to the civilian population.
22 That is illegal under the Geneva Convention even in
23 times of war. Every witness in every videotape we have viewed
24 indicated that it was destroyed in 1991. It turns out to be
25 destroyed, and it continues to be primarily responsible for
6954
1 the death of these people, namely, 5 percent of their
2 population in ten years.
3 MR. FITZGERALD: Again, it's entirely irrelevant to
4 al-'Owahli's subjective state of mind. There is no showing
5 nor could there be one that the Geneva Convention informed his
6 participation to blow up a building.
7 THE COURT: Two things. One is this document itself
8 and the other is the Geneva Convention. Do you have objection
9 to this document?
10 MR. FITZGERALD: Yes.
11 THE COURT: The objection to this document is?
12 MR. FITZGERALD: Relevance and unfair prejudice.
13 What does it have to do with al-'Owahli's subjective state of
14 mind?
15 THE COURT: What about lack of remorse?
16 MR. FITZGERALD: We're not arguing lack of remorse.
17 The lack of remorse is from 1998. There is no showing that
18 he's been shown this before in prison, and to argue that lack
19 of remorse I can say whatever I want bad about America because
20 it shows why I had no remorse. Lack of remorse from August of
21 1998 immediately after the deaths in the bombing, that's it.
22 THE COURT: Well, you say that's it, but I'm just
23 wondering as a practical matter in the jury's minds whether
24 that will be it.
25 MR. FITZGERALD: Your Honor, in all candor to argue
6955
1 that causes a lack of remorse, Mohamed Al-'Owhali has not been
2 remorseful. That report is not what keeps him from being
3 remorseful. He has said America has to leave Saudi Arabia.
4 America has to end support for Israel. There are a thousand
5 things. If we let the rubric of anything that he does not
6 like that goes on in the world since being incarcerated as
7 coming in the door to say that informs his lack of remorse I
8 think that's clearly something under 3593 that should be
9 precluded. Its' prejudice outweighing whatever limited value
10 it might have.
11 THE COURT: Didn't you show me that in the
12 defendant's presence Bin Laden made reference to these
13 conditions in Iraq?
14 MR. FITZGERALD: Whatever he said about Iraq is in
15 evidence and that's the point. We're back to the subjective
16 relief. We should not have a trial of world foreign policy
17 about Iraq and the Kurds and chemical weapons, and turn this
18 into a trial of anything but the circumstances of the crime
19 and the offense.
20 THE COURT: I am inclined to allow G. With respect
21 to the Geneva Convention, I have the same feeling with respect
22 to that as I do with respect to the provisions of the statute
23 with respect to terrorism that the legality of it under
24 particular legal documents or conventions are really not the
25 point.
6956
1 All right. So we'll adjourn -- I should tell you
2 that a draft of the charge to the jury and the special verdict
3 form will be available in my chambers 2 o'clock tomorrow and
4 if you want to pick it up, fine, and if you want some other
5 means of getting it, but it should inform our charging
6 conference at 4:30 on Monday.
7 We will meet on Monday at 8:30, and what I would like
8 to do at 8:30 is to review in the sequence in which the
9 defendant proposes to offer them, whatever it is that the
10 government objects to, so that we can begin at 10 o'clock
11 Monday and that not keep the jury waiting.
12 MR. FITZGERALD: I have one brief thing that we have
13 to address. We don't know who the witnesses are for Monday
14 since we haven't received any expert disclosure or 3500
15 material.
16 THE COURT: Who are your live witnesses on Monday?
17 MR. BAUGH: We don't have any 3500. But I can tell
18 you so far as the live witnesses as of right now it's really I
19 would rather not announce them in open court because of the
20 pressure --
21 THE COURT: You don't have to tell me. They don't
22 mean anything, but you do have to tell Mr. Fitzgerald.
23 MR. BAUGH: Your Honor, just so I have a
24 clarification -- the Geneva Convention in which the United
25 States is a signatory -- my client I would ask the Court to
6957
1 take judicial notice that the United States government is a
2 signatory of the Geneva Convention.
3 THE COURT: I'm aware of that. We're bound by the
4 provisions of the penal code, also, but that doesn't mean that
5 the language of the statute with respect to terrorism is what
6 informs Mr. Al-'Owhali's state of mind.
7 MR. BAUGH: Your Honor, if I might. The fact that
8 the United States and Madeline Albright says on that tape that
9 she is knowledgeable that these people are dying with the
10 intent to influence their political decision --
11 THE COURT: Yes?
12 MR. BAUGH: -- that is against American law. Now, I
13 assume that American law is relevant and I assume that in
14 comparing the guilt of my client to that wrong which he wishes
15 to correct, that the then United States ambassador to the
16 United Nations saying that we are doing it to influence their
17 political decision is relevant to determining comparative
18 guilt.
19 I would ask the Court how, without the definition of
20 the law how is the jury -- the law is not determined by who
21 the government indicts. The law is the law. If the law says
22 this is illegal and Ms. Albright says we're doing it, that
23 means we've committed a wrong act.
24 THE COURT: That means what?
25 MR. BAUGH: That means that we, United States.
6958
1 THE COURT: What does that mean that Mr. Al-'Owahli
2 may do?
3 MR. BAUGH: No. It is comparative guilt. The jury,
4 one of the allegations made by the United States in their
5 aggravators is that this man, for instance, showed a --
6 THE COURT: Equally culpably person outside --
7 MR. BAUGH: No, your Honor. The United States have
8 alleged and you are well aware that my client showed a
9 reckless disregard for the lives of innocents. This document
10 the Geneva Convention says you can't destroy water systems.
11 This document, the DIA says, we are going to do it and in
12 paragraph 11 --
13 THE COURT: No. DIA does it say that or does it say
14 it's vulnerable to that?
15 MR. BAUGH: Your Honor --
16 THE COURT: I haven't read it. I'm asking the
17 question.
18 MR. BAUGH: No, this says it's vulnerable. 60
19 Minutes will tell you it was destroyed. The water
20 purification system for the nation of Iraq was destroyed and
21 continues to be destroyed. The United States have bombed them
22 on this issue.
23 THE COURT: Has bombed the water supply, targeted the
24 water supplies?
25 MR. BAUGH: We have information that --
6959
1 THE COURT: Could you answer that question?
2 MR. BAUGH: That they are still being bombed. The
3 military is not telling us that they're destroying. However,
4 as recently as the tape that we got two weeks ago the water
5 purification system for the nation of Iraq continued to be the
6 major source of infection and the major reason for the death
7 of --
8 THE COURT: No, no. My question is, is it a present
9 target of America? I don't know when and where the water
10 supply was damaged.
11 MR. BAUGH: The United States Pentagon has told us
12 they can't keep track. Now we have gone to Voices of the
13 Wilderness and we have pooled from them a list of targeted
14 sites. Unfortunately, we have a, we have gotten two reports.
15 The first one is a compilation of it appears they've gone to
16 various press statements and gotten dates of who got killed
17 and what got bombed. There was also one recently in the New
18 York Times. And then there is another report that predates
19 that from December 98 to the year 2000, but they don't know
20 every place that got targeted.
21 THE COURT: Let me see the portion of the Geneva
22 Convention you want to have introduced.
23 MR. BAUGH: Yes, your Honor. The second numbered
24 paragraph. I would also while you're reading it, they also
25 mention medical supplies and other things in there that when
6960
1 you see the tapes and you see the children, we violated that,
2 too.
3 (Pause)
4 THE COURT: You want to introduce paragraph 54 of the
5 Geneva Convention and -- I think one of the things that I want
6 to view Monday morning is the 60 Minutes. That's the Madeline
7 Albright?
8 MR. BAUGH: Yes, your Honor, you have the transcript.
9 THE COURT: I think I have an excerpt of the
10 transcript.
11 MR. BAUGH: No, you have the entire Madeline
12 Albright. We included the entire Madeline Albright transcript
13 with our prior submission. I can fax it over again if you'd
14 like. In fact, I can send the tape over if you want me to. I
15 mean, I don't mind you taking it home if you want to look at
16 it.
17 THE COURT: No. That won't be necessary. Send it to
18 chambers and I may look at it before 8:30.
19 MR. FITZGERALD: I'll finish for the day on one note.
20 We do have an objection as well to the Voices in the
21 Wilderness exhibit which consists of a list of reported
22 bombing raids all of which postdate the bombing that
23 Al-'Owahli participated in.
24 I don't understand the relevance to showing US
25 foreign actions after the bombing and that will be addressed,
6961
1 we can take it up Monday.
2 THE COURT: We'll take it up Monday.
3 MR. FITZGERALD: The other two things I just wanted
4 to put on the record contemporaneously and not argue with
5 regard to this Clara Aligana who testified today just in terms
6 of putting on the record the balancing of victims impact I
7 would note two things.
8 When she testified she had wanted to put in pictures
9 of her son and the way he looked when he returned to America
10 with his face blown off. And we agreed with her to limit that
11 so that we did not show that. I just want to put that on the
12 record in terms of showing, not trying to put in her gory
13 photographs.
14 Secondly, I just like to note in the record while
15 it's fresh in our mind, that the victim impact testimony began
16 shortly before noon yesterday and concluded at about shortly
17 before 1 o'clock today so it consumed a total of a day and an
18 hour.
19 THE COURT: I'm well aware of that, but it's well
20 that you put it on the record. We're adjourned then until
21 8:30 on Monday morning.
22 (Adjourned to Monday, June 4, 2001, at 8:30 a.m.)
23
24
25
6962
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 MORDECAI THOMAS ONUNO...6817
5 TERESIA RUNGU...........6825
6 GEOFFREY MANGURIU.......6829
7 LEAH KAHUTHU............6832
8 PAUL NGUGI..............6835
9 REBECCA CHUMI...........6838
10 HOWARD KAVALER..........6843
11 JUNE KATHUKA............6851
12 LAWRENCE IRUNGU NDUGIRE.6855
13 WINFRED WAMAI...........6861
14 EGAMBI FRED DALIZU......6865
15 PRISCILLA OKATCH........6869
16 GEOFFREY GICHIA.........6871
17 RICHARD WAMAIRTE........6875
18 CLARA ALIGANGA..........6878
19 GOVERNMENT EXHIBITS
20 Exhibit No. Received
21 2197 and 2198 ..............................6829
22 2140 .......................................6830
23 2042 .......................................6834
24 2143 .......................................6836
25 s 2054A and 2054B ...........................6844
6963
1 2271 .......................................6848
2 2054C ......................................6849
3 2043 .......................................6852
4 2123A ......................................6857
5 2123B ......................................6860
6 2021A ......................................6867
7 2170 .......................................6870
8 2144 .......................................6872
9 2250, 2251 and 2254 ........................6876
10 2012A ......................................6879
11 2012B ......................................6880
12 2012C ......................................6882
13 2012D ......................................6885
14 2012E ......................................6885
15 2012F ......................................6887
16 2012G ......................................6887
17 2012H ......................................6891
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