U.S. v. Bin Laden

• Citation: 126 F.Supp.2d 290
• Decision Date: 02 January 2001
• Docket Number: No. S(7) 98 CR. 1023 (LBS).,S(7) 98 CR. 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

126 F.Supp.2d 290

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) 98 CR. 1023 (LBS).

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

January 2, 2001.

COPYRIGHT MATERIAL OMITTED

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

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

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

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

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

OPINION

SAND, District Judge.

Defendants Khalfan Khamis Mohamed ("K.K.Mohamed") and Mohamed Rashed Daoud Al-`Owhali ("Al-`Owhali") make numerous challenges to the imposition of capital punishment in this case, the Federal Death Penalty Act ("FDPA"),¹ and various aspects of the Government's two death penalty notices. Defendants further move for a limited bill of particulars concerning the factual basis supporting two of the non-statutory aggravating factors that the Government seeks to prove at sentencing. Concurrently before the Court is a separate motion by the Government for leave to file an amended death penalty notice as to K.K. Mohamed.

For reasons set forth below, we: (1) order that, as to both Defendants, the non-statutory aggravating factor of "causing serious injury to surviving victims" be stricken from the Government's death penalty notices, and the non-statutory aggravating factor of "victim impact evidence" be amended to include any "injury, harm, and loss" suffered by victims and their families, whether the victims are deceased or surviving; (2) order that, as to both Defendants, the non-statutory aggravating factor of "disruption to important governmental functions" be stricken from the Government's death penalty notices; (3) order that, as to Defendant Al-`Owhali, the non-statutory aggravating factor of "knowledge of simultaneous acts of terrorism" not be stricken from the Government's death penalty notice at the present time; (4) order that the Government provide Defendants with a limited bill of particulars, as defined in Part V of this Opinion; and (5) grant the Government's motion for leave to file an amended death penalty notice as to K.K. Mohamed.

All of Defendants' other applications are denied, except that Defendants' remaining challenges to specific aggravating factors are denied without prejudice to renewal after conclusion of the liability phase and before commencement of the sentencing phase, at which time the Court — aided by a full evidentiary record and the jury's verdict — will be in a better position to reexamine some of the motions provisionally rejected herein. (Cf. U.S. v. McVeigh, 944 F.Supp. 1478, 1491 (D.Colo.1996) (opting to "await the evidence, [due at trial] before determining whether and to what extent a penalty phase jury will be allowed to consider [a disputed] factor").)

I. THE DEATH PENALTY NOTICES

On June 27 and 28, 2000 — pursuant to 18 U.S.C. § 3593(a) — the Government filed notices of intent to seek the death penalty against K.K. Mohamed and Al-`Owhali. It is the Government's belief that, given the circumstances of this case, a sentence of death will be justified if either of the Defendants is convicted for any of the following crimes charged in the seventh superseding indictment:

• destruction of U.S. property by means of an explosive resulting in death (18 U.S.C. § 844(f)(1) & (3))— one count for each Defendant;

• use of a weapon of mass destruction against U.S. nationals resulting in death (id. § 2332a(a)) — one count for each Defendant;

• murder in the course of an attack on a federal facility involving the use of a deadly weapon (id. § 930(c)) — 11 counts for K.K. Mohamed, 213 counts for Al-`Owhali; and

• murder of U.S. employees engaged in official duties or of persons assisting U.S. employees so engaged (id. § 1114) — 2 counts for K.K. Mohamed, 41 counts for Al-`Owhali.

Al-`Owhali alone is charged with two counts of an additional capital offense: murder of internationally protected persons (id. § 1116).

Furthermore, as is required by 18 U.S.C. § 3593(a), the Government has set forth in its death penalty notices what aggravating factors it intends to prove at sentencing. With respect to each count of each of the capital offenses for which Defendants have been indicted, both Defendants are alleged to be subject to the following statutory aggravating factors:

• that the death occurred during the commission of another crime (id. § 3592(c)(1));

• that the defendant knowingly created a grave risk of death to additional persons (id. § 3592(c)(5));

• that the defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism (id. § 3592(c)(9)); and

• that the defendant intentionally killed or attempted to kill multiple persons (id. § 3592(c)(16)).

Both may also face the following non-statutory aggravating factors, again with respect to each count of each of the capital offenses for which Defendants have been indicted:

• that the defendant would be a continuing and serious threat to the lives and safety of others;

• that the defendant caused injury, harm, and loss to the victims and the victims' families;

• that the defendant caused serious injury to surviving victims;

• that the victim and intended victims included high-ranking public officials of the United States serving abroad; and

• that the defendant caused disruption to important governmental functions.

Finally, there is one non-statutory aggravating factor that the Government seeks to use against only Al-`Owhali: that the defendant had knowledge of simultaneous acts of terrorism. This aggravator is alleged with respect to each count of each of the five capital offenses for which Al-`Owhali has been indicted.

II. CHALLENGES TO THE IMPOSITION OF CAPITAL PUNISHMENT

Defendants make four wide-ranging challenges to the imposition of capital punishment in this case, three of which we summarily reject.² The first — that the death penalty, under all circumstances, constitutes cruel and unusual punishment in violation of the Eighth Amendment — is an argument already foreclosed by the U.S. Supreme Court. (Gregg v. Georgia, 428 U.S. 153, 168-187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).) The second — that international law completely bars this nation's use of the death penalty — is unsupportable since the United States is not party to any treaty that prohibits capital punishment per se, and since total abolishment of capital punishment has not yet risen to the level of customary international law. (See Jamison v. Collins, 100 F.Supp.2d 647, 766-767 (S.D.Ohio 2000); Amnesty International, Abolitionist and Retentionist Countries (last updated Nov. 23, 2000) (reporting that, as of November 23, 2000, 87 nations around the world still retain capital punishment, while only 75 are fully abolitionist).) The third—that application of the death penalty to Defendants is "wholly arbitrary, in violation of article 6(1) of the [International Covenant on Civil and Political Rights]" (Br. in Supp. of K.K. Mohamed's Death Penalty Mots. at 110) — cannot meaningfully be evaluated given Defendants' failure even to allege, much less prove, that some inappropriate and arbitrary factor infected capital decision-making with respect to this particular prosecution.³

Lastly, K.K. Mohamed moves to dismiss the Government's death penalty notice against him because, at the time of his arrest in South Africa, he was allegedly denied the right to...