U.S. v. Bin Laden

• Decision Date: 16 February 2001
• Docket Number: No. S(7)98CR.1023(LBS).,S(7)98CR.1023(LBS).
• Parties: UNITED STATES of America, v. Usama Bin LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
• Court: U.S. District Court — Southern District of New York

132 F.Supp.2d 168

UNITED STATES of America, v. Usama Bin LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el

Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.

No. S(7)98CR.1023(LBS).

United States District Court, S.D. New York.

Filed Under Seal February 16, 2001.

Amended February 16, 2001.

Unsealed and Redacted February 16, 2001.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, United States Attorney for the Southern District of New York, New York, Patrick J. Fitzgerald, Kenneth M. Karas, Paul W. Butler, Andrew C. McCarthy, Assistant United States Attorneys.

Frederick H. Cohn, Laura Gasiorowski, David Preston Baugh, New York, for Defendant Al-`Owhali.

David A. Ruhnke, Jeremy Schneider, David Stern, New York, for Defendant Khalfan Khamis Mohamed.

Sam A. Schmidt, Joshua L. Dratel, Kristian K. Larsen, New York, for Defendant El Hage.

Anthony L. Ricco, Edward D. Wilford, Carl J. Herman, Sandra A. Babcock, New York, for Defendant Odeh.

OPINION¹

SAND, District Judge.

Presently before the Court are several motions to suppress evidence on behalf of Defendants Mohamed Rashed Daoud Al-`Owhali ("Al-`Owhali"), Khalfan Khamis Mohamed ("K.K.Mohamed"), and Mohamed Sadeek Odeh ("Odeh"). For the reasons described below, Al-`Owhali's motion is granted in part and denied in part, whereas K.K. Mohamed's motion is denied in its entirety.² We address Odeh's motions in a separate sealed opinion also filed today.³

I. PROCEDURAL HISTORY

On October 13, 2000, Al-`Owhali moved to suppress the following: (1) all statements made during interrogation by U.S. law enforcement representatives while Al-`Owhali was held in Kenya under Kenyan custody; and (2) an out-of-court witness identification conducted by Kenyan authorities according to Kenyan procedure.⁴ A hearing was held on December 12 and 14, 2000, although the motion itself was not fully submitted until December 29.⁵

Jury selection commenced on January 3, 2001. In a sealed opinion dated January 9, we granted the motion to suppress, addressing only the admissibility of statements made by Al-`Owhali to U.S. officials. One week later, on January 16, the Government moved for a reconsideration of our ruling and for a reopening of the suppression hearing. Because the Government's proffer sufficiently indicated the need to further develop the factual record, we granted the motion for reconsideration and withdrew our January 9 sealed opinion. The renewed hearing was held on January 23 and the motion became fully submitted at the close of business on January 26. To accommodate expeditious resolution of the suppression issue, jury selection was suspended between January 23 and 26.

Two days after our initial granting of Al-`Owhali's motion, K.K. Mohamed moved on January 11 to suppress statements he made to U.S. agents while he was held in South Africa under South African custody. A hearing was specifically not requested. That motion became fully submitted at noon on January 24.

II. FINDINGS OF FACT

A. DEFENDANT AL-`OWHALI

We base the following findings of fact on the testimony of the FBI Special Agent ("S.A.") and Assistant U.S. Attorney (AUSA) who interrogated Al-`Owhali in Kenya, the testimony of the FBI Language Specialist who provided Arabic translation services during most of Al-`Owhali's interrogation, and the numerous stipulations, documents, and affidavits⁶ admitted into evidence for purposes of the suppression hearings.

The Arrest

1. S.A. Gaudin is currently a member of the Joint Terrorist Task Force based in New York City ("JTTF"). On August 7, 1998, S.A. Gaudin was instructed to travel to Kenya and assist in the joint U.S.-Kenyan investigation of the U.S. embassy bombing in Nairobi that had occurred earlier that same day. He arrived in Nairobi on August 9. It was S.A. Gaudin's understanding that while there, he was not authorized to make arrests.

2. On August 12, supervisors in Nairobi assigned S.A. Gaudin to pursue a tip concerning a suspicious individual staying at the Iftin Lodge, a hotel located in the Eastleigh neighborhood of Nairobi. Accompanying him were FBI Special Agent Steve Bongardt, New York City Police Detective Wayne T. Parola (also a member of JTTF), two officers of the Criminal Investigation Division of the Kenyan National Police ("CID"), and a Kenyan driver working for the Kenyan police. Together they drove to Iftin Lodge in a covered pickup truck.

3. At approximately 10 a.m. on August 12, the two CID officers entered Iftin Lodge, confronted the individual who was the subject of the lead, and arrested him without a warrant due to his lack of paper identification. Such an arrest was valid under Kenyan law.

4. The suspect was Defendant Al-`Owhali, though at that time he represented that his name was "Kalhad Salim" and that he was from Yemen.<sup>7</sup> On his person were $800 in U.S. currency, some amount of Kenyan cash, and a hospital stub indicating Al-`Owhali's receipt of medical treatment on August 7, the day of the bombing.

5. Al-`Owhali was removed from Iftin Lodge by the CID officers and placed into the rear of the truck. Seated inside were S.A. Gaudin, S.A. Bongardt, and Detective Parola; the three had never entered Iftin Lodge themselves.

6. Al-`Owhali was immediately transported without incident to CID headquarters in Nairobi, about a 25-30 minute drive. No questions were asked of the suspect, but S.A. Gaudin did speak in English to inform Al-`Owhali of the intended destination and to reassure him of his safety.

The Advice of Rights and Subsequent Interrogation

7. Interrogation of Al-`Owhali commenced at around 11 a.m. on August 12. Present were S.A. Gaudin, Detective Parola, and the two CID officers.

8. Detective Parola began the session by presenting the suspect with a modified advice of rights form written in English ("the AOR"). S.A. Gaudin admitted to having never seen an AOR like it before, although it is one apparently used often by U.S. law enforcement when acting overseas.

9. In its entirety, the AOR read as follows:

We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights.

You do not have to speak to us or answer any questions. Even if you have already spoken to the Kenyan authorities, you do not have to speak to us now.

If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere.

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States.

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

10. S.A. Gaudin had no instructions on how to proceed in the event that Al-`Owhali requested the presence of an attorney.

11. Detective Parola asked Al-`Owhali (in English) whether he could read the AOR. Al-`Owhali indicated that he could not read English, but that he could understand spoken English to a limited degree.

12. Detective Parola read the AOR aloud in English, going slowly and checking for visual signs of comprehension. Al-`Owhali appeared to...