U.S. v. Mohammed
| Decision Date | 01 August 1999 |
| Docket Number | AL-OWHALI,EL-HAGE,Docket No. 00-1025,BIN-LADEN |
| Citation | 213 F.3d 74 |
| Parties | (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. WADIH, also known as Abdus Sabbur, Defendant-Appellant, FAZUL ABDULLAH MOHAMMED, also known as Harun Fazhl, also known as Fazhl Abdullah, also known as Fazhl Khan, MOHAMED SADEEK ODEH, also known as Abu Moath, also known as Noureldine, also known as Marwan, also known as Hydar, MOHAMED RASHED DAOUD, also known as Khalid Salim Saleh Bin Rashed, also known as Abdul Jabbar Ali Abel-Latif, USAMA, 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 Director, MUHAMMAD ATEF, also known as Abu Hafs, also known as Abu Hafs El Masry, also known as Taysir, also known as Aheikh Taysir Abdullah, MUSTAFA MOHAMED FADHIL, also known as Mustafa Ali Elbishy, also known as Hussein, also known as Hassan Ali, KHALFAN KHAMIS MOHAMED, also known as Khalfan Khamis, AHMED KHALFAN GHAILANI, also known as Fupi, also known as Abubakary Khalfan Ghailiani, FAHID MOHAMMED MSALAM, also known as Fahad M. Ally, SHEIKH AHMED SALIM SWEDAN, also known as Sheikh Bahamadi, also known as Ahmed Ally, MAMDOUH MAHMUD SALIM, also known as Abu Hajer al Iraqi, also known as Abu Hajer, ALI MOHAMED, also known as Ali Abdelseoud Mohamed, also known as Abu Omar, also known as Haydara, also known as Taymour Ali Nasser, also known as Ahmed Bahaa Adam, AYMAN AL ZAWAHIRI, also known as Abdel Muaz, also known as Ayman Al Zawahiri, also known as Doctor and KHALED AL FAWWAZ, also known as Abu Omar, also known as Hamad, Defendants |
| Court | U.S. Court of Appeals — Second Circuit |
KENNETH M. KARAS, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Patrick J. Fitzgerald, Michael J. Garcia, Paul W. Butler, Ira M. Feinberg, Baruch Weiss, Assistant United States Attorneys, Southern District of New York, New York, New York, of counsel), for Appellee United States of America.
JOSHUA L. DRATEL, Joshua L. Dratel, P.C., New York, New York (Sam A. Schmidt, Deborah I. Meyer, Law Offices of Sam A. Schmidt, New York, New York, of counsel), for Defendant-Appellant Wadih El-Hage.
Before: CARDAMONE, and CABRANES, Circuit Judges, and TRAGER*., District Judge.
Defendant Wadih El-Hage appeals from an order entered orally on January 10, 2000 and by written endorsement January 13, 2000 in the United States District Court for the Southern District of New York (Sand, J.). The order denied defendant's motion to be released on bail, his application for rescission or for substantial modification of the Special Administrative Measures (S.A.M.) of his confinement, and his application for an evidentiary hearing regarding the substance of the motion. On March 13, 2000 this panel heard oral argument on this appeal, and on March 17, 2000 entered an order denying each of the three applications, in effect affirming the order of the district court. We noted in our order that this opinion was to follow in due course.
Pretrial detention is authorized by statute. Under 18 U.S.C. §3142(e) a person may be detained before trial if it is found that no condition or combination of conditions of an indicted defendant "will reasonably assure the appearance of the [defendant] . . . and the safety of any other person and the community." Due process limits how long an accused may be detained in prison without a trial. But exactly how long such detention may extend before violating due process limits - the issue we face on this appeal - has not been fixed in the law. The 30-33 months of pretrial detention served or contemplated to be served before the conclusion of a trial in this case is extraordinary, and justified only by the unprecedented scope of violence, that the conspiracy of which defendant was allegedly a part inflicted on innocent victims, by the extraordinarily complex and difficult preparation needed to present this case, and, more particularly because the lengthy delay in bringing defendant to trial may not be laid at the government's doorstep.
Wadih El-Hage is a 39-year old United States citizen who, until his arrest, resided in Arlington, Texas with his wife and seven children. El-Hage, a native of Lebanon, has lived in the United States for much of the past 22 years, and also has lived in Pakistan, the Sudan, and Kenya with his family during that period. He was arrested on September 16, 1998 and charged with six conspiracies to kill United States citizens and destroy United States property abroad, 20 counts of perjury based on his grand jury testimony, and three counts of false statements. The charges against El-Hage arise from his alleged participation in conspiracies led by co-defendant Usama Bin Laden, who is still at large, to attack United States citizens and interests world-wide.
The indictment charges defendant with being a key participant in the terrorist organization founded by Bin Laden, called "al Qaeda" (the Base). The indictment states that Bin Laden and al Qaeda issued a public declaration of war against the American military in August 1996 and, on February 23, 1998, endorsed a statement that Muslims should kill Americans, anywhere they could be found. Count One of the indictment asserts that to achieve these aims, al Qaeda provided its members with military and intelligence training, training in guerilla warfare, urban fighting, explosives, assassination and kidnaping, and that it purchased, stored and transported weapons and explosives, and made efforts to obtain the components of nuclear and chemical weapons. Count One also declares that al Qaeda trained the persons responsible for the killing of 18 members of the United States armed forces in Mogadishu, Somalia, on October 3-4, 1993. The indictment further charges that on August 7, 1998 members of al Qaeda carried out the bombing of the United States embassy in Nairobi, Kenya causing more than 212 deaths and injuring 4,500 people, and the bombing of the United States embassy in Dar es Salaam, Tanzania that caused 11 deaths and injuries to 85 people.
On September 24, 1997, prior to the embassy bombings, El-Hage was called to testify before a grand jury in the Southern District of New York investigating the activities of Bin Laden and al Qaeda. Based on his testimony that day El-Hage was indicted and charged with seven counts of perjury (Counts 245 through 251) concerning his contacts with Bin Laden and al Qaeda and his knowledge of their activities. After the embassy bombings, El-Hage was again subpoenaed to appear before the grand jury on September 16, 1998. Thirteen counts of perjury (Counts 252 through 264) were added to his indictment based on his testimony that day regarding his knowledge concerning documents found in his files in Kenya.
El-Hage first sought bail on September 23, 1998 when he was charged with eight counts of perjury and three counts of false statements. United States Magistrate Judge Leonard Bernikow denied bail on the ground of risk of flight, without reaching the issue of dangerousness, relying on El-Hage's foreign ties and extensive foreign travel, that he had previously failed to appear on a minor bad check charge in Texas, the dishonesty element of the perjury charges, and the gravity of the then-unindicted accusations against him. On November 17, 1998 the district court judge toured the wing of the Manhattan Metropolitan Correctional Facility where El-Hage is held.
After he was indicted on the subsequent conspiracy charges, defendant again sought bail on February 8, 1999 before United States District Court Judge Leonard B. Sand. Judge Sand denied bail, citing the government's "overwhelming case for detention based on danger to the community and risk of flight." El-Hage filed the instant bail application, from the denial of which this appeal has been taken, on December 6, 1999.
In opposition to the most recent bail motion, the government submitted a detailed affirmation by an Assistant United States Attorney which alleged El-Hage played a significant role in al Qaeda's operations from at least 1992 until his arrest in 1998. Defendant was one of Bin-Laden's trusted associates, privy to al Qaeda's secrets and plans, served as Bin Laden's personal secretary, traveled on his American passport on Bin Laden's behalf, moved Bin Laden's money, and worked in Bin Laden's factories in the Sudan - factories which served as a cover for the procurement of chemicals and weapons.
Documents found on El-Hage's computer seized at his home in Nairobi, Kenya in 1997, the affirmation continues, details El-Hage's role and his overall dangerousness. Other evidence, apart from this computer record, confirms El-Hage's role in conveying military orders from Bin Laden including the direction that the East African cell (which later carried out the embassy bombings) "militarize," and that defendant had a role in providing false passports and in seeking weapons including Stinger missiles for al Qaeda members. Passport photographs of al Qaeda members who participated in al Qaeda's efforts against American troops in Somalia were also recovered in the Kenya files.
The accused clearly has the ability to flee. El-Hage has been a frequent traveler who lived in Afghanistan, Pakistan and the United States in the 1980's, eventually moving to the Sudan in 1992 and Kenya in 1994, before returning to the United States in 1997. By his own admission, while living in the Sudan and...
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