U.S. v. Bin Laden, S(7)98CR.1023(LBS).

• Decision Date: 16 February 2001
• Docket Number: No. S(7)98CR.1023(LBS).,S(7)98CR.1023(LBS).
• Citation: 132 F.Supp.2d 198
• 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 198

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.

February 16, 2001.

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

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.

OPINION¹

SAND, District Judge.

Presently before the Court are motions submitted on behalf of Defendants Mohamed Sadeek Odeh and Mohamed Rashed Daoud Al-`Owhali. Odeh seeks suppression of statements that he made to Pakistani officials while he was detained in Pakistan (and the fruits of those statements), and suppression of statements that he made to American officials while he was detained in Kenya. He claims that suppression is warranted on several alternative grounds, including: that he was detained for an unreasonable length of time before being brought before a magistrate; that the statements made in Pakistan were involuntary; that the Kenyan statements were obtained in violation of Miranda; and that he was never apprised of his right to consular notification under the Vienna Convention. The Court also addresses, in this Opinion, Defendant Mohamed Rashed Daoud Al-`Owhali's motion to suppress his confession on the ground that he was detained for fourteen days before being brought before a magistrate.² For the reasons set forth below, these motions are denied.

I. PROCEDURAL HISTORY

On June 20, 2000, Defendant Odeh filed a motion seeking the suppression of: (1) statements he made in Pakistan during interrogation by Pakistani law enforcement; (2) statements he made in Kenya during interrogation by U.S. law enforcement; and (3) evidence seized during a search of his residence in Witu, Kenya. This three-part motion was based, inter alia, on Odeh's sworn affidavit. Subsequently, at a sealed and ex parte hearing held on August 1, 2000, it became clear that Odeh wished to withdraw his affidavit on grounds relating to his religious beliefs;³ the Court found such action to be fully within Odeh's discretion. (Tr. Aug. 1, 2000 Sealed, Ex Parte Hr'g at 4, 20.) The withdrawal of Odeh's affidavit then prompted the Court to deem as similarly withdrawn the motion to suppress itself, but leave was granted for Odeh's counsel to renew the suppression motion in a way that did not rely on Odeh's own affidavit.⁴ (Id. at 14.) We stated that our determination as to the legal sufficiency of any such motion would occur only after the renewed motion was actually filed and the Government had an opportunity to respond. (Id. at 14-15.) In any event, lead counsel for Odeh took the position — not imposed by the Court — that he and co-counsel would make no filings, in any format, without the prior approval of their client. (Id. at 13.) We reiterated the above understandings to counsel for Odeh in an ex parte court proceeding held on September 28, 2000. (United States v. Bin Laden, 98 Cr. 1023(LBS), "Excerpt from Proceeding Held Sept. 28, 2000 Ex Parte on Application of Sandra A. Babcock, Esq. to Withdraw as Counsel.")

During the five months between August 1, 2000 and the start of jury selection on January 3, 2001, no renewed motion to suppress was ever filed on behalf of Odeh. On January 9, however, the Court granted Defendant Al-`Owhali's motion to suppress statements made by him in Kenya during interrogation by U.S. law enforcement.<sup>5</sup> Odeh thereafter filed two suppression motions directly on the heels of the favorable Al-`Owhali ruling: (1) a January 10 motion to suppress statements Odeh made in Kenya, and (2) a January 18 motion to suppress statements Odeh made in Pakistan and the fruits thereof. Both motions simply renewed arguments raised in Odeh's previously withdrawn motion to suppress. Both also relied upon sworn affidavits executed by Odeh; in his own words, a review of Al-`Owhali's successful suppression motion left him "convinced that these limited issues can be raised without running afoul of my deeply held religious beliefs." (Odeh Aff. in Support of Mot. to Suppress Kenyan Statements ¶ 11; Odeh Aff. in Support of Mot. to Suppress Pakistani Statements ¶ 10.)

On January 19, 2001, we concluded that an evidentiary hearing should be held as to the admissibility of statements made by Odeh while interrogated in Kenya — i.e., his January 10 motion. (Tr. Jan. 19, 2001 Sealed Hr'g at 27-28.) That hearing was to be consolidated with an upcoming hearing, already scheduled to begin on January 23, concerning Al-`Owhali's reopened suppression motion.⁶ In our mind, the motions of these two defendants raised facts and issues that were intertwined. The combined hearing was held on January 23, and the motion concerning Odeh's Kenyan statements became fully submitted at the close of business on January 26. We address the merits of Odeh's January 10 motion herein.

Our treatment of Odeh's January 18 motion has been altogether different. Based on the Government's representation "that it does not intend to offer for its case in chief at trial any statements made by Odeh to Pakistani officials" (Gov't Sept. 18, 2000 Ltr. to the Court), Odeh sought to preclude the Government from using his Pakistan statements for the narrow purposes of impeachment or rebuttal. We tentatively opined that resolution of this aspect of the motion should at least be deferred until such time as the Government actually seeks to impeach or rebut a defense witness through the use of statements made by Odeh to Pakistani officials. (Tr. Jan. 19, 2001 Sealed Hr'g at 28-29.) As for suppression of the fruits of Odeh's Pakistan statements, the Court made no preliminary ruling except that the Government would be allowed to argue the untimeliness of Odeh's January 18 motion to suppress. (Id. at 27.) In a written submission dated January 23, 2001, the Government did in fact raise the timeliness issue. (Gov't Jan. 23, 2001 Ltr. to the Court at 3-6.)

II. FINDINGS OF FACT⁷

At the reopened suppression hearing which was held on January 23, the only witness testimony which related to Defendant Odeh's motion was that of Assistant United States Attorney (AUSA) [redacted], who participated in Odeh's interrogation in Kenya. The Court's findings of fact are based on the testimony of AUSA [redacted] and on the numerous documents and affidavits submitted by the parties, including but not limited to reports from the Kenyan Criminal Investigation Division (CID) and the FBI.⁸

Arrest in Pakistan

1. On the morning of August 7, 1998, Defendant Odeh was detained by Pakistani immigration authorities in the airport in Karachi, Pakistan after arriving on a flight from Kenya. The basis for Odeh's detention by Pakistani authorities was his alleged use of a false passport.

2. Odeh was in the exclusive custody of Pakistan from August 7 — August 14, 1998 and was interrogated by Pakistani officials during this time.

3. On August 14, 1998, Odeh was transported from Karachi, Pakistan to Nairobi, Kenya and delivered into the custody of Kenyan officials. Much of the information regarding the circumstances of Odeh's return to Kenya is classified. Therefore, the Court includes additional findings of fact in classified Appendix A to this Opinion.

Odeh's Detention and Interrogation in Kenya

4. Upon arrival in Kenya at Jomo Kenyatta Airport on August 14, 1998 at 7:30 p.m., Odeh was delivered into the custody of a Kenyan CID officer. That...