U.S. v. Bin Laden, S7R 98 CR. 1023(KTD).

Decision Date02 November 2005
Docket NumberNo. S7R 98 CR. 1023(KTD).,S7R 98 CR. 1023(KTD).
Citation397 F.Supp.2d 465
PartiesUNITED STATES OF AMERICA Plaintiff, v. Usama BIN LADEN, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Patrick J. Fitzgerald, Lead Attorney, U.S. Attorney's Office, Northern District of Illinois, for United States of America, Plaintiff.

Lloyd Epstein, Epstein & Well, New York City, for Usama Bin Laden, also known as Usamah Bin-Muhammad Bin-Ladin also known as Shaykh Usamah Bin Ladin also known as Mujahid Shaykh also known as Hajj also known as al Qaqa also known as the Director, Defendant.

Allan Paul Haber, Law Office of Allan P. Haber, Irving Cohen, Richard B. Lind, New York City, for Mamdouh Mahmud Salim, also known as Abu Hajer al Iraqi, also known as Abu Hajer, Defendant.

OPINION & ORDER

KEVIN THOMAS DUFFY, District Judge.

Through a mixture of inaction, incompetence and stonewalling to cover up their mistakes, the United States Marshals Service and the Department of Justice's Office of Enforcement Operations have seriously jeopardized the convictions of al Qaeda terrorist Wadih El-Hage. On May 29, 2001, El-Hage (who at times has purportedly acted as Usama bin Laden's personal secretary) was convicted of: (1) conspiracy to kill United States nationals; (2) conspiracy to commit murder; (3) conspiracy to destroy buildings and property of the United States; and (4) eighteen counts of perjury. Because the Marshals Service suppressed evidence during El-Hage's trial, however, there are grave concerns that El-Hage must be retried.

El-Hage was tried jointly with three other al Qaeda terrorists, each of whom were convicted for their roles in the 1998 synchronized bombings of two United States Embassies in Africa. Those attacks killed 224 people and wounded thousands. El-Hage was convicted, not for hands-on participation in these bombings, but rather for participating in al Qaeda's broader conspiracy to kill Americans, and for lying to two grand juries regarding al Qaeda. On October 18, 2001, El-Hage and his codefendants were each sentenced to life imprisonment.

On October 24, 2003, El-Hage filed a motion seeking various relief, including a new trial pursuant to Fed.R.Crim.P. 33. In an Opinion and Order dated February 7, 2005, United States v. Bin Laden, No. S7R 98 CR 1023(KTD), 2005 WL 287404, (S.D.N.Y. Feb. 7, 2005), I denied all but one of El-Hage's requests. That request seeks a new trial based on the Government's failure to make timely disclosure of the videotapes and transcripts of twenty-eight hours of interviews between prosecutors, FBI agents and government witness Jamal al-Fadl.

To determine whether the Government's failure to turn over the transcripts of these interviews until more than fifteen months after El-Hage's sentencing warrants a new trial, I held a series of hearings on February 17, April 26 and June 6-7, 2005. Based on the evidence adduced at those hearings, my review of the video-teleconference videotapes, the trial record and exhibits, the pre-trial discovery and "3500 material" originally produced, and the parties' submissions, I make the following findings.

I. Creation and Disclosure of the Tapes
A. Jamal al-Fadl

The Government's first witness at El-Hage's trial was Jamal al-Fadl, a former al Qaeda member, who testified extensively about the history, structure and operation of al Qaeda. Al-Fadl also testified about some of El-Hage's al Qaeda activities. By the time of his trial testimony, al-Fadl was a longtime cooperator who had provided the Government with significant inside information about al Qaeda and other Islamist terrorist organizations.

Al-Fadl's cooperation with the United States began in 1996 when he approached a United States Embassy and offered to provide information about the terrorist groups and threats of which he was knowledgeable. During December 1996, al-Fadl was brought to the United States in FBI custody and was assigned a protective detail of FBI agents who guarded him around the clock.1 From the time he approached the Embassy, and throughout his FBI custody in the United States, FBI agents and Assistant United States Attorneys investigating al Qaeda regularly interviewed al-Fadl.

On July 16, 1997, pursuant to a cooperation agreement, al-Fadl pleaded guilty to charges of: (1) conspiracy to injure and destroy national defense material, premises and facilities of the United States; and (2) conspiracy to carry an explosive during the commission of a felony. Each charge involved al-Fadl's activities on behalf of al Qaeda. Following his guilty plea, al-Fadl remained in the protective custody of the FBI, pursuant to a bail agreement, and continued cooperating with FBI agents and AUSAs through late 1998.

In late 1998, al-Fadl was accepted into the Witness Security Program administered by the United States Marshals Service ("WitSec") and his bail conditions were modified to allow WitSec to relocate al-Fadl (along with his family) to an undisclosed location.2 At the time of his relocation the Marshals Service designated al-Fadl's case as "Secret" or "Top Secret" because of the national security implications of his information regarding terrorists. In his relocation area, al-Fadl was assigned a WitSec Inspector, John Doe, who was responsible, inter alia, for day-to-day contact with al-Fadl.3 Following his relocation, and throughout 1999, al-Fadl continued to meet with FBI agents and prosecutors via telephone and in person via "neutral site" visits.

B. Recording of Video-Teleconferences

In late December 1999, the Southern District of New York Assistant United States Attorneys who had been interviewing al-Fadl since 1996 requested that WitSec install videoconferencing equipment in al-Fadl's relocation area to facilitate their contact with al-Fadl. The request was motivated primarily by the AUSAs' desire to be able to contact al-Fadl quickly in the event that they needed to show him photographs of suspected terrorists. WitSec complied with the request and, by the end of 1999, purchased and installed video conferencing equipment including: a camera, television, speakerphone, secure T1 line, and videocassette recorder in WitSec offices in al-Fadl's relocation area and New York. This equipment allowed al-Fadl, accompanied by Inspector Doe, to travel to the WitSec office and engage in two-way video-teleconferences with the Southern District of New York prosecutors.

Around the time Marshals Service employees were installing the videoconference equipment, Inspector Doe spoke with one of his supervisors, Branch Chief Inspector George Walsh (who was stationed at USMS Headquarters in Washington, D.C.), regarding how he should prepare reports regarding the al-Fadl teleconferences.4 Doe was told that the Marshals Service computer system in the relocation area was unable to handle classified information and that he should therefore videotape the teleconferences rather than preparing detailed written reports. Finding this order odd, Inspector Doe sought confirmation from his direct supervisor, Supervisory Inspector Mike.5 Supervisory Inspector Mike conferred with the Chief Inspector for the relocation area, William Wagner, who confirmed that USMS Headquarters had ordered the videotaping of the video-teleconferences. Inspector Doe then requested, and received, approval from his supervisor to purchase videotapes on which he recorded the conferences.

Eighteen video-teleconferences were conducted between January 21, 2000 and January 14, 2002. Thirteen of the conferences occurred before the conclusion of El-Hage's trial; twelve of these were videotaped.6 During the conferences, Inspector Doe would sit in the same room as al-Fadl, though Doe would generally be "off camera." Inspector Doe recorded each session by placing a tape in the VCR (which was located in a cabinet directly underneath the television used for the teleconference) and pressing "Record." If the tape ran out during a session, Inspector Doe would eject it and replace it with a new one. Inspector Doe did not announce these tape changes to the conference participants. In all, Inspector Doe recorded approximately twenty-eight hours of video-teleconference on six videotapes. The only person who explicitly indicates knowledge of the taping during the video-teleconferences is al-Fadl, who tells his wife (in Arabic) during one meeting that the session is being recorded.7

After each conference Inspector Doe prepared a USMS Field Report ("USM 210") with the date of the video-teleconference and the statement, "WC [al-Fadl] came to this office for interview on CCTV with AUSA, see tape # ____," indicating the number of the videotape on which he had recorded the session. After preparing the report and printing it, Inspector Doe deleted it from the computer system. Inspector Doe then presented the printed report to Supervisory Inspector Mike who reviewed it, signed it and forwarded it to USMS headquarters in Washington. At headquarters, the report was to be reviewed by the case manager on al-Fadl's case and placed in al-Fadl's file. Throughout the period of the videotaping, al-Fadl's case manager changed frequently, with as many as five Inspectors filling the position over the two-year period. The case managers' supervisor, however, did not change; Chief Inspector Walsh supervised all of the case managers at USMS headquarters throughout substantially all of the period when the videotaping occurred.

After creating the videotapes and reporting them to his superiors, Inspector Doe secured the tapes in his office safe. At no point prior to or during El-Hage's 2001 trial did Inspector Doe, Supervisory Inspector Mike, Chief Inspector Wagner, Chief Inspector Walsh, or any of the five case managers from al-Fadl's case contact the United States Attorney's Office to...

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