22 February 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 9 of the trial.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
1239
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 February 22, 2001
9:50 a.m.
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12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
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1240
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 Attorneys for defendant Mohamed Sadeek Odeh
9 FREDRICK H. COHN
DAVID P. BAUGH
10 LAURA GASIOROWSKI
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
11
DAVID STERN
12 DAVID RUHNKE
Attorneys for defendant Khalfan Khamis Mohamed
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14 SAM A. SCHMIDT
JOSHUA DRATEL
15 KRISTIAN K. LARSEN
Attorneys for defendant Wadih El Hage
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1241
1 (Trial resumed)
2 (Jury not present)
3 THE COURT: Is there anything that need be addressed
4 before the jury comes in?
5 MR. WILFORD: Yes, your Honor.
6 MR. RUHNKE: Yes, your Honor.
7 MR. WILFORD: Your Honor, yesterday we had a
8 discussion about a possible stipulation concerning an area
9 that we sought to cross-examine this particular witness on on
10 behalf of Mr. Odeh. Given the parameters that were discussed,
11 notwithstanding the fact that we were speaking with the
12 government until 11:00 last night, we were unable to arrive at
13 a satisfactory stipulation on both sides. Given the fact that
14 the court appears to have been in a position to grant the
15 application on, I believe, behalf of Mr. Al-'Owhali and
16 Mr. Khalfan Khamis Mohamed that was interposed on 403 grounds
17 with respect to that particular piece of evidence, we just
18 wanted to put on the record that in fact, because of the fact
19 that we are put on trial as a noncapital defendant with a
20 capital defendant, this is one of those instances where
21 despite the fact that Buchanan versus Kentucky said that it
22 was admissible to do so, we are in the position where we have
23 a very real conflict related to the guilt phase proof with
24 respect to the noncapital defendants. The capital defendants
25 have objected based on 403 grounds based on the death penalty
1242
1 phase of the case, which is a legitimate concern that the
2 court has to take into consideration. However, it is
3 compromising our ability to present guilt phase evidence with
4 respect to our client.
5 THE COURT: That is very interesting, but I don't buy
6 any of that. When we had the conference, I thought we had
7 reached a resolution which satisfied everybody. I proposed
8 that it be put on the record then and there. I received very
9 strong assurances that that was not necessary, that the
10 parties would be able to work out a stipulation. I am sure
11 people used their best efforts but were unable to do so, but I
12 don't think that is a basis for claiming that there is a
13 deprivation of rights by virtue of capital and noncapital
14 defendants being tried together.
15 If you want, we can go into the robing room and I
16 will work out the text of a stipulation. But I don't see this
17 as an inherent conflict between capital and noncapital
18 defendants. So you make your statement for the record, but
19 the record should also reflect that the court doesn't accept
20 it.
21 MR. COHN: Just so the record will be complete, your
22 Honor, we waffled yesterday on whether or not we were going to
23 oppose that testimony. So it is clear, we do oppose that
24 testimony, so that the record isn't full of speculation
25 because yesterday we were trying to work it out. So our
1243
1 position is if they intend to cross and introduce the issue of
2 the death of these two young men, we would move to exclude it.
3 THE COURT: My understanding when we left and when we
4 were talking about a stipulation, the matter of the death of
5 the children was not going to be included in the stipulation.
6 MR. COHN: But we didn't make a formal objection.
7 All I am doing is completing the record. Your statement of
8 what the record was with respect to the statement of
9 agreements and discussion last night is absolutely correct,
10 but I wanted to make sure that it was clear for later record
11 purposes that it was essentially a motion in limine by us to
12 exclude that testimony.
13 THE COURT: But I thought, Mr. Wilford, that it was
14 agreed that the point that you are trying to make -- I know,
15 you have already put it on the public record -- could be fully
16 made without any references to the death of the two young men.
17 Is it your point that your defense of your client requires
18 that the jury learn of the deaths of the two young men? If
19 so, that is a position different than yesterday's, and you are
20 entitled to change your mind, but the record should be clear
21 that that is what you are doing.
22 MR. WILFORD: Your Honor, that is not my position and
23 it is not the position of the Odeh defense position. However,
24 before we proceed further in a public forum, I have tried to
25 be circumspect with my statements about our trying to reach a
1244
1 stipulation in nature of the discussions yesterday. I would
2 prefer not to do so in open court with the press present, with
3 respect to my client's defense. There is another statement I
4 would like to make on the record. We can do it later in the
5 day.
6 THE COURT: Let's do it right now.
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8 (Continued on next page)
9 (Pages 1245-1248 sealed)
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1 (In open court)
2 THE COURT: The jury are going out for lunch. Should
3 we have them go out for an early lunch or should we close for
4 the day?
5 MR. FITZGERALD: My guess is it will be a close for
6 the day situation. We will fill in the morning. Even the
7 transcripts -- there are 30 of them -- some of them are two
8 pages each. I don't imagine us going beyond the morning with
9 this witness.
10 THE COURT: Then you will be reading stipulations?
11 MR. FITZGERALD: Reading stipulations which gets us
12 to transcripts.
13 THE COURT: If another half hour is going to permit
14 the afternoon to be used for things, let's use it.
15 MR. FITZGERALD: Very well.
16 THE COURT: They are on their way.
17 (Jury present)
18 L'HOUSSAINE KHERCHTOU, resumed.
19 THE COURT: Good morning, ladies and gentlemen.
20 JURORS: Good morning.
21 THE COURT: I know that some of you are unhappy about
22 some of the conditions of crowding and with respect to
23 conditions in the jury room and otherwise, and I will look
24 into it. I am very much aware of the fact that jury duty
25 involves some conditions that are less desirable than one
1250
1 would like. I want you to know that we are really making
2 efforts to make your jury service as pleasant and as
3 comfortable as possible. I won't tell you how much time and
4 effort it took to make additional restrooms available.
5 So I will look into the matters and do what I can,
6 and I do appreciate your patience and your cooperation, and we
7 will do the best we can. We have to have a little flexibility
8 and a little tolerance.
9 Mr. Fitzgerald.
10 MR. FITZGERALD: Thank you, Judge.
11 (Continued on next page)
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1251
1 DIRECT EXAMINATION continued
2 BY MR. FITZGERALD:
3 Q Mr. Kherchtou, if I could ask you to speak slowly and
4 clearly and sit as close to the microphone as possible.
5 I would like to ask you some questions to clarify the
6 time sequence in which things happened. Yesterday you
7 testified about a time when Abu Mohamed al Amriki, Hamza Al
8 Liby, and Anas al Liby came to Nairobi. Do you recall that?
9 A Yes.
10 Q You also testified about a time that Khalid al Fawwaz was
11 arrested. Do you recall that?
12 A Yes.
13 Q Which happened first?
14 A The arrival to Nairobi of Abu Mohamed al Amriki, Hamza,
15 and Anas, it was before the arrest of Khalid Fawwaz.
16 Q The apartment in which Abu Mohamed al Amriki, Hamza Al
17 Liby, and Anas al Liby came to visit you and used it to
18 develop pictures, was that the same apartment that was
19 searched at or about the time of the arrest of Khalid al
20 Fawwaz?
21 A Yes, at the same time.
22 Q You also mentioned that there came a time when Khalid al
23 Fawwaz left Nairobi and also a time when Wadih El Hage came to
24 Nairobi.
25 A Yes.
1252
1 Q When was that in relation to the arrest of Khalid al
2 Fawwaz?
3 A After Khalid al Fawwaz came out of the jail, just a little
4 bit when El Hage came to Nairobi.
5 Q Do you know what time of year it was that Khalid al Fawwaz
6 was arrested, either by the religious calendar or religious
7 events or by the season?
8 A I know that it was in Ramadan, but not the other -- I
9 can't remember the day.
10 Q You talked yesterday about a man named Abu Fadhl al
11 Makkee. Was he a member of al Qaeda?
12 A Yes, he is.
13 Q Did he do any particular kind of work for al Qaeda?
14 A He is very close to Usama Bin Laden and he was responsible
15 of economic committee.
16 Q Are you familiar with anyone who used the nickname Jeff?
17 A Yes. That was Mohamed al Amriki.
18 Q Are you familiar with anyone who used the nickname Abu
19 Jihad?
20 A Yes. That was Abu Khalid or Mustafa.
21 Q Abu Khalid or Mustafa. Is that the same person known as
22 Abu Khalid al Nubi?
23 A Yes.
24 Q If we could display Government's Exhibit 106 in evidence.
25 I ask you to look at your TV screen to your left and tell us
1253
1 whether or not you recognize the person in Government's
2 Exhibit 106?
3 A Yes, I do.
4 Q Who is that?
5 A That is Sheik Abu Hajer.
6 Q How much contact did you have with Sheik Abu Hajer when
7 you were in al Qaeda?
8 A There was not much contact, but I know him.
9 Q Do you know if he was a member of al Qaeda?
10 A Well, I can't say that he was a member.
11 Q Did you ever see him in Bin Laden's guesthouse?
12 A Yes, many times.
13 Q Was there any discussion within al Qaeda about whether or
14 not Sheik Abu Hajer was a member of al Qaeda?
15 A People, they are saying that he is from al Qaeda, but
16 nobody can assure that he gave bayat to Usama Bin Laden.
17 Q Let me show you what's been marked as Government's Exhibit
18 111 for identification purposes only, so if we could just
19 display that to the witness and to counsel for the moment.
20 Do you recognize the person depicted in Government's
21 Exhibit 111 for identification?
22 A Yes. That's Abu Islam al Khabir or Saif al Islam.
23 Q Let me show you what's been marked as Government's
24 Exhibit -- OK. Is that a fair and accurate picture of the
25 person you knew as Abu Islam al Khabir, also known as Saif al
1254
1 Islam?
2 A Yes.
3 MR. FITZGERALD: I would offer that, your Honor,
4 Government's Exhibit 111.
5 THE COURT: Yes, received.
6 (Government's Exhibit 111 received in evidence)
7 Q Let me show you what has been marked Government's Exhibit
8 120 for identification. Do you recognize the person depicted
9 in Government's Exhibit 120?
10 A Yes.
11 Q Who is that?
12 A Saad.
13 Q And what nationality is Saad?
14 A He is Egyptian.
15 Q Was he a member of al Qaeda?
16 A Yes.
17 Q Is that a fair and accurate depiction of the member of al
18 Qaeda you knew as Saad in Government's Exhibit 120?
19 A Yes.
20 MR. FITZGERALD: Your Honor, I would offer
21 Government's Exhibit 120 for identification in evidence.
22 THE COURT: Received.
23 (Government's Exhibit 120 for identification received
24 in evidence)
25 Q Were there any people in al Qaeda that Saad was
1255
1 particularly close with, that you would see him spend time
2 with?
3 A Abu Mohamed el Masry or Saleh, Saif el Adel, and others.
4 Q Why don't we make this clear. You mentioned you spent
5 time with Abu Mohamed el Masry or with Saleh. Is that one
6 person or two?
7 A No, it's the same person.
8 Q You also mentioned Saif el Adel?
9 A Yes.
10 Q If we can show the witness what has been marked
11 Government's Exhibit 115 for identification, please, and just
12 show it to the witness and counsel for the moment. Do you
13 recognize who is depicted in Government's Exhibit 115?
14 A Yes.
15 Q Who is that, sir?
16 A That's Abu Islam al Surir.
17 Q Is he known by any other name?
18 A Shuaib.
19 Q Is he a member of al Qaeda?
20 A Yes.
21 Q Is Government's Exhibit 115 for identification a fair and
22 accurate depiction of the person you knew as Abu Islam al
23 Surir Shuaib?
24 A Yes.
25 MR. FITZGERALD: Your Honor, I would offer
1256
1 Government's Exhibit 115 in evidence.
2 THE COURT: Received.
3 (Government's Exhibit 115 received in evidence)
4 MR. FITZGERALD: If we may display that to the jury.
5 If I could approach the witness with what is marked
6 Government's Exhibit 4 for identification, a series of
7 photographs handed out to counsel previously.
8 THE COURT: Yes.
9 Q Sir, I would ask you to look at Government's Exhibit 4,
10 which is a series of photographs and names, and I believe the
11 photographs are already received in evidence. If you could
12 look and verify whether or not the pictures depicted and the
13 names set forth below correspond, in other words, if the
14 picture is on the page, whether or not the names you knew the
15 persons by are listed accurately below.
16 A Excuse me. You mean these names here?
17 Q Yes. So the first page, do the names listed below the
18 picture correspond to the person depicted in the picture?
19 A Yes. So the first person is Usama Bin Laden?
20 Q Yes. I don't want you to read it, just look at the
21 exhibit and verify if the names accurately depict the person
22 depicted in the photograph.
23 (Pause)
24 A Yes.
25 Q Do those pages accurately reflect the names of the persons
1257
1 depicted in the government exhibits?
2 A Yes.
3 MR. FITZGERALD: Your Honor, I would offer in
4 evidence Government's Exhibit 4.
5 THE COURT: Yes, received.
6 (Government's Exhibit 4 received in evidence)
7 MR. FITZGERALD: We will distribute them after the
8 next break, if that is all right, Judge.
9 THE COURT: Yes.
10 Q Sir, are you familiar with a grope known as al Ittihad al
11 Islami?
12 A Yes.
13 Q Can you tell us what al Ittihad al Islami is.
14 A Al Ittihad al Islami is a Muslim group in Somalia. I
15 think they constructed themselves after the departure of Siad
16 Barre, the last president of Somalia.
17 Q Are you familiar with the person by the name of Sheik
18 Hassan?
19 A Yes, I heard about him a lot of times.
20 Q Who is he?
21 A He is a member of al Ittihad al Islami of Ogaden.
22 Q Is that a group focused on the Ogan area of Ethiopia?
23 A No.
24 Q Where are they focused?
25 A In the southeast of Somalia.
1258
1 Q Yesterday when we broke, we were talking about the time
2 Wadih El Hage moved to Nairobi.
3 A Yes.
4 Q And the fact that he rented a house where you stayed.
5 A Yes.
6 Q During the time when you were in Nairobi, did you ever see
7 Wadih El Hage with Abu Hafs el Masry, the military committee
8 person?
9 A Yes.
10 Q Can you tell us approximately how many times you saw Wadih
11 El Hage and Abu Hafs el Masry together?
12 A Probably twice or three times.
13 Q Do you recall any of the occasions on which you saw them
14 together, what they were doing?
15 A Sitting at his home.
16 Q When you say at his home, whose home?
17 A Wadia's home.
18 Q Did you ever learn of Wadih El Hage and Abu Hafs el Masry
19 taking a trip together?
20 A Yes.
21 Q Do you recall approximately when that was?
22 A Probably early '95.
23 Q Where did they go?
24 MR. SCHMIDT: Objection, foundation.
25 Q Let me ask you this question, yes or no. Do you know the
1259
1 place where they went? Yes or no.
2 A Yes.
3 Q Do you know that from a conversation with either Wadih El
4 Hage or Abu Hafs el Masry? Yes or no.
5 MR. SCHMIDT: Object to the form of the question. It
6 is a leading question.
7 Q How do you know?
8 THE COURT: How do you know.
9 A I was there with them.
10 Q You were there with them when they did what?
11 A When they left for that trip.
12 Q Did they discuss where they were going in your presence?
13 A I know the city where they were going.
14 Q How do you know the city where they were going?
15 A I was -- we were all of us there, and then they left me
16 behind.
17 Q Where did they go?
18 MR. SCHMIDT: Objection.
19 THE COURT: Overruled.
20 A To Mombasa.
21 Q Did they tell you why they were going to Mombasa?
22 A No.
23 Q Did you see them when they came back from Mombasa?
24 A Yes.
25 Q Did they tell you what they did in Mombasa?
1260
1 A No.
2 Q For the jury's benefit, Mombasa, where is that located?
3 A It is in the east of Kenya, in the coast of Kenya.
4 Q Do you know how they went from Nairobi to Mombasa?
5 A They took one of the cars.
6 Q When you say one of the cars, whose cars?
7 A Al Qaeda cars.
8 Q What kind of car was the al Qaeda car?
9 A The cars that Hamad al Fawwaz bought from Dubai.
10 Q Are those the cars that you talked about yesterday that
11 Khalid al Fawwaz imported into Nairobi?
12 A Yes.
13 Q What happened to those cars when Khalid al Fawwaz left
14 Nairobi for the Sudan?
15 A They stayed in Nairobi.
16 Q Where were they kept?
17 A I think two were in Wadia's house, and I don't remember
18 the others.
19 Q Did you ever see Abu Hafs el Masry, the military committee
20 person, in Nairobi at a time when Abu Mohamed al Amriki, the
21 person who came with the photography equipment, was there?
22 A Yes.
23 Q Did you ever discuss with Wadih El Hage whether or not Abu
24 Hafs el Masry, the military committee person, trusted Abu
25 Mohamed al Amriki, the surveillance person?
1261
1 A Yes.
2 Q Can you tell us what you recall about that conversation.
3 A It was about Abu Hafs el Masry, the commander, wanted to
4 travel to Sudan and wanted somebody, whether me or Wadia or
5 Haroun, to book a flight to go to Sudan, but he doesn't want
6 that Abu Mohamed al Amriki to see his passport or the name he
7 is using, and I was very angry. I told him why you don't
8 trust him, and Wadia told me that al Hafs doesn't want him,
9 doesn't want Abu Mohamed al Amriki to see his name, because he
10 was afraid that maybe he is working with United States or
11 other governments.
12 Q Do you know who actually went and booked the travel
13 arrangements for Abu Hafs el Masry on that occasion?
14 A I don't remember whether me or Wadia.
15 Q Did you ever see Wadih el Hage with Abu Ubaidah Al
16 Banshiri in Kenya?
17 A Yes.
18 Q Was that on one occasion or more than one occasion?
19 A More than one occasion.
20 Q Did Wadih El Hage ever discuss whether or not he was
21 involved in any business with Abu Ubaidah Al Banshiri?
22 A Abu Ubaidah al Banshiri was bringing in some diamonds, but
23 it was only once, I think, from Tanzania, so as Wadia, he can
24 sell them for him.
25 Q Do you recall where this occurred?
1262
1 A I have never seen Abu Ubaidah giving diamonds to Wadia
2 directly, but Wadia told me that he used to give him some
3 diamonds so as to sell them for him.
4 Q Do you know if Abu Ubaidah Al Banshiri owned any property
5 in Tanzania?
6 A Yes.
7 Q Do you know what kind of property he owned there?
8 A It was a land.
9 Q Did you ever learn what the purpose of the land was in
10 Tanzania?
11 A He said that they wanted to bring some excavators and some
12 other machinery so as to dig and look for diamonds.
13 Q Do you know if Abu Ubaidah Al Banshiri ever obtained the
14 excavators or other machinery to look for and dig up the
15 diamonds?
16 A No.
17 Q Did you ever hear of Abu Ubaidah Al Banshiri doing work
18 for a German relief organization in Kenya?
19 A No.
20 Q You mentioned yesterday that at first you did not know
21 that Abu Ubaidah Al Banshiri had two wives. Tell the jury how
22 it is that you came to learn that Abu Ubaidah Al Banshiri had
23 a wife in Kenya.
24 A Nobody from al Qaeda knew that Abu Ubaidah has a second
25 wife, but when I came the first time from Sudan to Kenya, it
1263
1 was in September '93. I was coming from Sudan to Kenya and
2 they gave me a bag, a handbag in which there are many women
3 dresses, so as to give it to Abu Ubaidah.
4 Q You said they gave you. Who gave you?
5 A From the guesthouse. I don't remember who. The second
6 time I was in Sudan and Abu Ubaidah was in Kenya, and when I
7 was coming they gave me another watch, lady's watch, in which
8 written the name of Wadia on the top of that watch. So I gave
9 it -- when I arrived Kenya, I gave it to Abu Ubaidah, and he
10 (through interpreter) he erased the name Wadih from the top of
11 that watch.
12 (In English) The third thing is --
13 Q Did you ever ask Wadia if he got the lady's watch?
14 A No. He didn't get the watch.
15 The third is, yesterday I mentioned we had an office
16 in downtown, but we didn't work in that office yet. But we
17 had a phone there. A lady called and I answer myself to the
18 phone, and I said who is speaking, she said Mrs. Jalal. I was
19 surprised, it mean the wife of Jalal. Mohamed Tawfiq was
20 there, and I told him this guy maybe he is married, but no --
21 and he doesn't know it himself. And we just let things
22 normally, until the end we knew that he is married.
23 Q At the time of that conversation with Tawfiq and Wadia,
24 there were three of you in the room?
25 A No. I was sure that I was with Tawfiq in the room but
1264
1 Wadia, he was there in Nairobi.
2 Q Did anybody besides you and Tawfiq know that Abu Ubaidah
3 had a wife?
4 A At that time, nobody else, the three of us only.
5 Q Did there come a time that you knew that Abu Ubaidah Al
6 Banshiri had died?
7 A Yes.
8 Q Can you tell us where you were when you learned that.
9 A I was in Sudan.
10 Q Can you tell us how you learned that Abu Ubaidah Al
11 Banshiri had died?
12 A Well, the story is given to everybody by Saif el Adel. He
13 said that Abu Ubaidah was drowned in Victoria Lake in Kenya,
14 Tanzania, and they send Haroun to Tanzania so as to see those
15 bodies, if he can recognize Abu Ubaidah's body. The story
16 itself, it comes from another, the brother-in-law of Abu
17 Ubaidah from the second wife, called Asef.
18 Q Did Saif el Adel tell you what they learned happened with
19 Asef?
20 MR. SCHMIDT: Objection.
21 THE COURT: Yes or no.
22 Q Do you know, did Saif el Adel describe anything about how
23 Abu Ubaidah Al Banshiri drowned? Yes or no.
24 A Yes.
25 Q What did he tell you?
1265
1 MR. SCHMIDT: Objection.
2 THE COURT: Overruled. That is not being offered for
3 the truth, is it?
4 MR. FITZGERALD: No, offered for the fact that Saif
5 el Adel said.
6 THE COURT: Let me explain that. When evidence is
7 received, we say it is received for all purposes. If somebody
8 says I was told something or somebody said something, it is
9 received as evidence of two things, one, that the words were
10 said and, two, of the truth of what was asserted. When we
11 don't impose any limitations, then the evidence can be
12 considered by you for all purposes.
13 Sometimes what is significant is not the truth of
14 what was said but that the words were spoken. To give you a
15 classic example that has nothing to do with this case, the
16 issue is why somebody is running back and forth from a well to
17 a barn, and somebody says John said the barn was on fire.
18 That becomes relevant to what the listener understood and why
19 he acted and why he was running back and forth. We say that
20 that evidence is received not for the truth of the statement
21 but for the fact that the words were spoken becomes relevant
22 to the state of mind, the understanding of the listener. In
23 this instance the testimony is being offered not for the truth
24 but for the state of mind or understanding of the listener.
25 Do you want to restate the question.
1266
1 MR. FITZGERALD: Yes, thank you.
2 Q Can you tell us what Saif al Adel told you they had
3 learned about how Abu Ubaidah Al Banshiri died?
4 A Yes. He was saying that Abu Ubaidah Al Banshiri and his
5 brother-in-law Asef wanted to take a ferry or a ship -- I
6 don't know exactly from where to where but it was on the Lake
7 Victoria. They came late, the ship was very full, and they
8 pay extra money, then they got the first class. First class
9 was in the bottom of the ship, the first floor. I think the
10 ride was during the night. I don't remember exactly. But
11 during the night everybody was sleeping, the ship turned over
12 and upside down, and Asef was very light. He jumped and Abu
13 Ubaidah helped him. He went out and he told him just leave,
14 because the water is coming and people are screaming. But Abu
15 Ubaidah, you know, the door of the cabin became -- excuse me.
16 (through interpreter) The door overturned and it was above his
17 head, and it was too high for him. (Resuming in English)
18 Sheik Abu Ubaidah is tall man, big man, and he tried to jump
19 but he couldn't. That is why he told Asef just to leave and
20 go, and that's why he drowned.
21 Q When you learned of Abu Ubaidah Al Banshiri's death, was
22 there any discussion within and among al Qaeda members as to
23 whether or not Abu Ubaidah Al Banshiri may have died a
24 different way?
25 A No. There is some people there suspecting Asef maybe he
1267
1 is behind the death of Abu Ubaidah, but personally, I don't
2 think so, because they were all the time together, and I
3 believe Asef, what he said.
4 Q At or about the time that you learned Abu Ubaidah Al
5 Banshiri died, you were living in Khartoum?
6 A I didn't.
7 Q Do you know where Wadih El Hage was at that time?
8 A At that time he came to Khartoum too.
9 Q Do you recall, did you observe anything about Wadih El
10 Hage's behavior or appearance at or about the time that Abu
11 Ubaidah Al Banshiri, you learned he had died?
12 A Abu Ubaidah Al Banshiri was loved by everybody. He was a
13 very good person, and everybody was upset. Wadia, I saw him
14 cry.
15 Q Did you ever learn of a boat, a small boat turning over
16 off the coast of Kenya?
17 A Yes.
18 Q Do you know who was on the boat?
19 A Al Qaeda.
20 Q Do you know how many al Qaeda people were on the boat when
21 it turned over?
22 A There were some trainers in Somalia.
23 Q Do you know approximately how many were on the boat when
24 the boat turned over off the coast?
25 A I am not quite sure, but maybe four.
1268
1 Q Did you ever actually see these people after the boat
2 turned over?
3 A When the boat turned over, they came from Mombasa to
4 Nairobi, and they called at Wadia's house, and they took the
5 car, and I brought them from the bus station to the house.
6 Q Did they stay at Wadia's house?
7 A Didn't stay a long time.
8 Q At the time that they visited Wadia's house, were you
9 there?
10 A Yes, I was there.
11 Q And was Wadia there?
12 A Yes.
13 (Continued on next page)
14
15
16
17
18
19
20
21
22
23
24
25
1269
1 Q Now, let me show you what's been marked for identification
2 as Government Exhibit 118 and would you just display that to
3 the witness and counsel for the moment.
4 Do you recognize the person depicted in Government
5 Exhibit 118 for identification?
6 A Yes.
7 Q Who is that?
8 A Tawfiq.
9 Q Do you know Tawfiq by any other name?
10 A He's name is Mohammed Karama.
11 Q First of all, is he a member of al Qaeda?
12 A Yes, he is.
13 Q And is that a fair and accurate depiction of Tawfiq
14 Mohammed Karama in Government Exhibit 118?
15 A Yes.
16 MR. FITZGERALD: I would offer Government Exhibit
17 118, your Honor.
18 THE COURT: Received.
19 (Government's Exhibit 118 received in evidence)
20 Q It can be displayed for the jury.
21 Now did there come a time when you purchased dogs
22 when you were in Nairobi?
23 A Yes.
24 Q Can you tell the jury who you purchased the dog with?
25 A I was with Wadih. We both done it.
1270
1 Q What type of dog did you buy?
2 A They German Shepherd dogs.
3 Q How many German Shepherds did you buy?
4 A Well, I think, I think we bought first two. Then another
5 one in the next time.
6 Q And what was the reason that you and Wadih bought these
7 three German Shepherds?
8 A Because Abu al Makkee called from Sudan and they needed
9 these dogs.
10 Q And did Abu Fadal al Makkee tell you why they needed these
11 German Shepherds in the Sudan?
12 A No, he didn't tell me, but I learned after that.
13 Q And without telling us what you learned, how did you learn
14 why they needed the dogs in the Sudan?
15 A Well, he called Wadih El Hage and he told him that they
16 need dogs for the security sometime.
17 Q And what did you do when you bought the German Shepherds?
18 What happened to the three dogs?
19 A One of the dogs stayed in Wadih's house, and the other two
20 we send them to Sudan.
21 Q And did you have to do anything special to get the dogs
22 from Nairobi to Sudan?
23 A Yes. We first registered them in kennel club and we got
24 all the certifications and vaccination certificates that they
25 require in the airline.
1271
1 Q And do you know who picked up the dogs at the other end
2 when they got off the airplane?
3 A I don't remember it.
4 Q And the dog that stayed at Wadih's house, do you remember
5 the name of the dog?
6 A Yes.
7 Q What was that?
8 A Fa.
9 Q F-A, Fa?
10 A Yes.
11 Q Now, during the time that you were in al Qaeda you were
12 trained to be a pilot, correct?
13 A Yes.
14 Q And you mentioned a person named Nawawi training to be a
15 pilot?
16 A Yes.
17 Q Did you ever learn of any other person whether in al Qaeda
18 or outside al Qaeda who is dealing with Usama Bin Laden having
19 to do with a plane?
20 A Yeah, there is a guy called Abu Tarak el Masry.
21 Q And was he a member of al Qaeda?
22 A I don't think so.
23 Q And can you tell us did you ever meet Abu Tarak el Masry?
24 A Once.
25 Q Can you tell us the circumstance under which you met Abu
1272
1 Tarak el Masry?
2 A He was coming from Sudan, and they met him in Wadih house.
3 Q And were you present for any conversation he had with
4 Wadih?
5 A Yes, we were all there.
6 Q Can you tell us what Abu Tarak and Wadia and himself
7 discussed?
8 MR. SCHMIDT: Objection.
9 THE COURT: Overruled.
10 MR. SCHMIDT: Your Honor, foundation.
11 THE COURT: He was present at the conversation.
12 A Well, Abu Tarak was explaining how he crashed in Usama Bin
13 Laden's aircraft.
14 Q What did he tell you about that?
15 A Well, he was explaining that he was in contact with people
16 of the al Qaeda incident, and he wanted to take that aircraft
17 from Sudan so as to make some business with it and businessman
18 in Egypt or somewhere else, and when they agreed he came to
19 Sudan first to take it, but before that he called Nawawi, he
20 told him to pick up the batteries and to clean the aircraft,
21 when he came there and to make fuel and everything.
22 When he came there he took the aircraft and then he
23 wants to make sure the aircraft engine are okay and he make
24 some three or four circuits. Circuits it means take off and
25 just go around the airport and land three times I think or
1273
1 four, I don't remember.
2 And at the fourth one, the last one he used the brake
3 to stop, but there is no brake and emergency brakes, and there
4 is nothing, and so he was switch everything off and at the end
5 of the runway he hit a small hill there of sand, and the whole
6 nose of the aircraft was destroyed, and he run away from the
7 aircraft and he don't want to see those Sudanese investigators
8 about the crash of the aircraft, and he flew from Sudan to
9 Kenya, just to go back to his country.
10 Q And did he indicate whether or not he made any contact
11 with anyone after he crashed the plane in the Sudan?
12 A He said that he was very sorry and he called Usama Bin
13 Laden saying that he said he told him that, I am sorry about
14 what happened to your airplane, but I was, I am sorry that you
15 lost your airplane, but I was about to losing my life in that
16 crash.
17 Q And where did this conversation take place between you
18 Wadih El Hage and Abu Tarak, the Egyptian?
19 A In the office in Wadih's house.
20 Q And were you ever present for any conversation as to how
21 the plane had been used before that?
22 A Well, I heard that the airplane, it was when --
23 THE COURT: First, from whom and when?
24 THE WITNESS: Yes. It was the first time when I came
25 to Kenya in '93, October '93 in the guest house they told me
1274
1 that I learned that Usama Bin Laden aircraft and he brought
2 some people from Sudan to Kenya with the same aircraft. Then
3 he went back.
4 Q And did they tell you in the guest house where the people
5 who were brought to Kenya went next?
6 A Some people did, it was only four or five people that came
7 in the same aircraft. It was Abu Hafs among them, but the
8 others I don't know who was they, and they went to Somalia.
9 Q Now, you mentioned yesterday that after Abu Mohamed al
10 Amriki went back to the United States, you never saw him
11 again?
12 A No.
13 Q Did you ever discuss with anyone in al Qaeda after that
14 point in time whether they were still in contact with Abu
15 Mohamed al Amriki?
16 A Excuse me?
17 Q Did you ever talk to anyone who was a member of al Qaeda
18 as to whether or not they were still maintaining contact or
19 communications with Abu Mohamed al Amriki?
20 A During, when I was in Sudan, Anas al Liby he called me
21 from London, and he told me that still in contact with Abu
22 Mohammed and he is doing well, and he's okay.
23 Q And just to we're clear when Anas al Liby in London told
24 you in the Sudan that somebody was doing well, who was he
25 referring to?
1275
1 A It means Mohamed Amriki.
2 Q Did he tell you what Abu Mohammed Alriki was doing at the
3 time?
4 A He said that he studying computers I think and he's
5 working in a company at the same time.
6 Q And did he indicate to you, did Anas al Liby indicate to
7 you?
8 MR. SCHMIDT: Objection.
9 THE COURT: Yes, sustained.
10 Q Did you learn how it was that he was maintaining
11 communication with Anas al Liby, yes or no?
12 A Yes.
13 Q How did you learn that?
14 A Anas al Liby he said that he was in contact with him
15 whether by phone and sometimes by E Mail.
16 Q Now, yesterday you talked about a person by the name
17 Mustafa or Abu Khalid al Nubi, N-U-B-I?
18 A Yes.
19 Q Did there ever come a time when you saw Abu Khalid al Nubi
20 in the possession of a passport with any part of it being
21 fake?
22 A Yes.
23 Q Can you tell the jury as best you can recall when and
24 where that happened.
25 A Well, I don't remember exactly when, where it happened,
1276
1 but, and he had a Yemeni passport, and it has fake Kenyan
2 visa, and he's supposed to travel to Sudan, but we were
3 approaching me and I was talking with Harun. I don't, I'm not
4 sure whether he was with us or not was talking that if we give
5 the passport to Mustafa we let him know that the visa is fake
6 he won't travel, because he was very scared, he can't go to
7 Afghanistan.
8 So but at the end somebody told him that that visa is
9 not correct, and at the end I went to Sudan. I learned after
10 from Harun that the guy went to the immigration to renew that
11 visa to get new one and they caught his passport in the
12 immigration. After that, Ahmad Tawhil he went there and then
13 he brought his passport.
14 Q And do you know how Ahmad Tawhil got his passport back?
15 A Well, they told me that he paid some money to somebody
16 there and they brought his passport.
17 Q Now, during the time do you know whether Wadih el Hage
18 ever made bayat to Usama Bin Laden?
19 A No.
20 Q During the time that you were in Nairobi did you ever,
21 were you ever told that there was anything that you could not
22 discuss with Wadih El Hage?
23 A No.
24 Q Now, during the time that you were in Kenya, did you ever
25 travel to Mombasa?
1277
1 A Yes.
2 Q And who did you travel with?
3 A With a friend called Zakaria.
4 Q Can you tell us where Zakaria was from?
5 A Tunisia.
6 Q Was he a member of al Qaeda?
7 A Yes.
8 Q And do you recall approximately medical when it was that
9 you and Zakaria went to Mombasa?
10 A Early '95, I'm not sure.
11 Q Who did you see when you went to Mombasa?
12 A I met Mustafa Abu Islam.
13 Q When you say Mustafa, is that Mustafa al Khalid? You
14 mentioned Abu Islam. Which Abu Islam?
15 A The youngest.
16 Q Is that the person also known as Shuaib, S-H-U-A-I-B?
17 A Yes.
18 Q And did you discuss with them what it was they were doing
19 in Mombasa?
20 A No, we didn't discuss.
21 Q Was Shuaib a member of al Qaeda?
22 A Yes.
23 Q And was the other person a member of al Qaeda?
24 A Yes.
25 Q And do you know what they were doing for work at the time?
1278
1 A They were living in Mombasa. They were married and they
2 were living in Mombasa, and they were working in the fish.
3 Q When you came back from that trip to Mombasa did you
4 discuss this with anyone in Nairobi?
5 A Excuse me again, discuss what?
6 Q Did you ever discuss the fishing business in Mombasa with
7 anyone in Nairobi?
8 A Well, we all the time talking about fishing with El Hage
9 and with Harun, with everybody.
10 Q And from your discussions with Wadih El Hage did you have
11 discuss who it was that was involved in the fishing business
12 in Mombasa?
13 A Well, mainly the guy who was working on boat was Marwan,
14 and the others they were in Mustafa was in Mombasa so as to
15 have a small shop there in which he can sell those fish.
16 Q And did Wadih know Marwan?
17 A Yes.
18 Q Now, during the time that you were in Nairobi did you know
19 of an organization called Help Africa People?
20 A Yes.
21 Q And what was that organization?
22 A It's an NGO government organization.
23 Q NGO?
24 A Nongovernment agency.
25 Q What did you know about who was involved with Help Africa
1279
1 People?
2 A Wadih was registered in this agency.
3 Q And during the time that you were in Nairobi did Wadih El
4 Hage ever get the organization registered?
5 A No, he didn't get it. He get it after I left.
6 Q And during the time that you were in Nairobi did you ever
7 see any identification cards for the Help Africa People
8 organization?
9 A Well, I saw only Wadih's and Harun's IDs.
10 Q Where did you see the identification card for Wadih and
11 Harun?
12 A They were putting them in the computer.
13 Q Are you familiar with the person by name of Ahmed Hassan?
14 A Yes.
15 Q And who is Ahmed Hassan?
16 A Ahmed Hassan el Masry from Jama.
17 Q When you say J-A-M-A jihad, what is that?
18 A It's a Egyptian Islamic group.
19 Q And do you know where he was from, Ahmed Hassan?
20 A He was from Egypt.
21 Q And did you ever see him in Nairobi?
22 A No.
23 Q Did you ever see him in the Sudan?
24 A Yes.
25 Q Did there come a time when you left Kenya and moved back
1280
1 to the Sudan?
2 A Yes.
3 Q Can you tell the jury approximately when that was?
4 A Well, I left when I got my license I think in 1995.
5 Q Do you know when in 1995 that was, if you recall?
6 A Probably the end of '95.
7 Q And when you got back to the Sudan what did you do for
8 work?
9 A Well, I worked a little bit with Wadi Aquiq's company.
10 Q And when you say you worked for a little bit can you tell
11 the jury approximately how long you worked for Wadi Aquiq's
12 company?
13 A It was a month or two months.
14 Q And did you ever work for any of the other Bin Laden
15 companies in the Sudan?
16 A After Aquiq, they told me to go to the tannery.
17 Q And which tannery is that?
18 A It was Happ tannery.
19 Q Did you actually go to the tannery to work?
20 A Well, I went there for short period, and they refused me.
21 Q And did you work for any of the other Bin Laden companies
22 after that?
23 A No.
24 Q Now, did there come a time -- when you were in the Sudan
25 how many approximately how many people who were members of al
1281
1 Qaeda in the Sudan were Libyan?
2 A Less than 20.
3 Q And did there come a time when you learned of a discussion
4 as to whether or not the Libyan members should leave the
5 Sudan?
6 A Yes, it was, there was a pressure from the Libyan
7 government on the Sudanese government that all the Libyans
8 must leave the country, and they informed Usama Bin Laden that
9 if you have some Libyans you have to let them get out from the
10 country. And Usama Bin Laden informed these guys and he told
11 them that you have to leave, because if you don't leave, you
12 will be responsible for yourselves, and if somebody caught
13 you, I am not responsible.
14 What I can do for you is I can give you twenty-four
15 hundred bucks, plus a ticket with you and your wife if you
16 want to live somewhere, but the Libyans, most of them, they
17 refused the offer of Usama Bin Laden. They were very upset
18 and angry because they couldn't protect them, and they had a
19 meeting, they had. At the tend of the meeting they gave a
20 letter to Usama Bin Laden that they are leaving al Qaeda, and
21 they took that money and tickets and some of them they left.
22 Some of them they joined the Libyan Islamic group.
23 Q And do you recall any of the names of the members, the
24 Libyan members of al Qaeda who left the group at this time?
25 A Libyans, Anas al Liby, all of them.
1282
1 Q Do you recall approximately what year this was?
2 A During '95. It was before the Usama Bin Laden left.
3 Q And what happened to Ans al Liby? Where did he go?
4 A Well, he stayed a little bit in Sudan. Then he went to
5 Qatar for sometime. Then after that he went to London.
6 Q And do you know what kind of a passport Anas al Liby had?
7 A No.
8 Q And did he have any expertise, Anas al Liby, besides
9 surveillance?
10 A He is good in computers, very good.
11 Q Was there any Libyan member of al Qaeda who did not leave
12 the group?
13 A It was only I think, Abu Derdaa.
14 Q Now, did there come a time when there was, when you
15 learned that there was a financial crisis in al Qaeda?
16 A Yes, I think in since the end of '94, '95 we have a crisis
17 in al Qaeda.
18 Q How did you learn about it?
19 A Well, Usama Bin Laden himself he was talking to us and
20 saying that there is no money and he lost all his money, and
21 he shouldn't extend a lot of things and he reduced the salary
22 of people, and myself when I wanted to go to renew my license
23 flying license in Kenya, and ask him for the ticket and some
24 money --
25 THE COURT: Asked who?
1283
1 THE WITNESS: Asked Usama Bin Laden himself, and he
2 told me that he just forget about it. And I told him, I was
3 three years studying. He said, you know, just forget about
4 the license. But I went to Kenya, and even Wadih himself he
5 helped me, I think I, don't know, five hundred bucks to renew
6 the license.
7 Q And did there come a time when you asked someone in al
8 Qaeda for another sum of money where you were turned down?
9 A Well, it was it was, it wasn't exactly in December '95.
10 Q What happened?
11 A Well, my wife was pregnant and she has C section, so I
12 booked in the hospital in Khartoum, and I needed money so to
13 pay for the hospital it was five hundred bucks I think, and I
14 asked Sheik Sayyid el Masry.
15 I asked him if he can give me some money. At that
16 time Usama Bin Laden was in one of his projects in Kassala
17 another city in the Sudan, and I asked him about money.
18 He told me, oh, there is no money. We can't give you
19 anything, and, why you don't take your wife to the Muslim
20 hospital.
21 Q Just so we're clear, is the person that told you they
22 don't have any money or won't give it to you was Usama Bin
23 Laden or was that Sheik Sayyid?
24 A No, Sheik Sayyid.
25 Q Continue?
1284
1 A He told me, why don't you take your wife to Hassam
2 Hospital. I knew that if I take my wife there she will die
3 the first day. And I told him, if it was your wife or your
4 daughter, you would take her there? And he said, well -- I
5 tell him, listen, why don't you borrow money for me and I will
6 give money back to you. He said, I can't do anything until
7 Bin Laden come back.
8 He is coming when after four days and my wife has the
9 appointment with the doctor. At the end in the meantime I
10 told him that when, because they were sending they were saying
11 before that they were sending the Egyptian to renew their
12 passports or to get a new passport Egyptian of me, but they
13 were paying there the transport; they were paying their
14 sitting there in Yemen to stay for a whole month so as to get
15 that passport, and everything was paid by al Qaeda.
16 But when I was needed that five hundred bucks he gave
17 me another story. And that's why I learned that we are
18 treated second class, even though we are not the same scale.
19 At the end one of the friends called Riddia was the one who
20 collected some money from the other people. Then he paid for
21 my wife.
22 Q And what was your attitude towards Sheik Sayyid an al
23 Qaeda after they turned down your request for the money?
24 A Well, I was about -- if I had a gun I would shoot him at
25 that time.
1285
1 Q Did there come a time when Usama Bin Laden left the Sudan
2 to go someplace else?
3 A Yeah, he left.
4 Q And do you recall approximately when that was?
5 A At the end of '95 or early '96.
6 Q And what happened after Usama Bin Laden went to
7 Afghanistan, what happened to the rest of the people in al
8 Qaeda who were in the Sudan?
9 A Well, they were told, not all of them, they were told to
10 go to after Usama Bin Laden with their families, but some of
11 them were among al Qaeda, but they told them, we are not, you
12 are not coming with us, because we don't have anything to do
13 there. We don't have anything to do there, and they are not
14 able to pay for them in Afghanistan.
15 Q And did anyone discuss with you whether or not you would
16 be among the people who would leave the Sudan to go to
17 Afghanistan to rejoin Usama Bin Laden?
18 A Yeah, they told me to go myself to go there.
19 Q And who was it in al Qaeda to told you that prepare
20 yourself to move to Afghanistan?
21 A That time was Sheik Tunisi he was in charge.
22 Q And what did you say when they told you to prepare
23 yourself to move to Afghanistan?
24 A Well, it wasn't mandate that you have to go there, but
25 they told me to keep by myself. I said, I'm not going there,
1286
1 because I don't have anything to do there and they have the
2 kids, there is no schools, nothing there.
3 Q What happened when you told them you would not go to
4 Afghanistan to rejoin Usama Bin Laden?
5 A Well, like everybody they gave you twenty-four hundred
6 bucks plus a ticket. They didn't give me ticket but they told
7 me whenever you decide to travel, we'll give you ticket.
8 Q And after that point in time when you said you would not
9 go to Afghanistan to rejoin Usama Bin Laden, did you ever
10 receive any salary from al Qaeda?
11 A No.
12 Q Did you consider yourself still to be following your bayat
13 to al Qaeda?
14 A No.
15 Q When you -- how did you justify telling them you were not
16 going Afghanistan after you made a bayat many years before to
17 follow whatever orders you were given?
18 A I didn't understand.
19 Q You made a bayat when you joined al Qaeda, correct?
20 A Yes.
21 Q And you agreed to follow the orders of the emir if they
22 were Islamically correct?
23 A Yes.
24 Q And now you were asked to go to Pakistan or Afghanistan?
25 A Yes.
1287
1 Q Did you consider it a violation of your bayat to tell them
2 that no, I'll stay here in the Sudan?
3 A It was a violation because they didn't ask me to do
4 something against Islam, it was normal. People can move, they
5 have to move, but I refused to.
6 Q Did you consider yourself part of al Qaeda after you
7 refused to go back to Afghanistan?
8 A No.
9 Q Now, you mentioned a person named Abu Fadl Makkee. Let me
10 ask the next question and, Judge, I will make clear that I'm
11 only asking this testimony for the purpose of this witness'
12 understanding, not offering it for the truth.
13 Did you ever learn whether or not Abu Fadl Makkee was
14 cooperating or providing information to a government about
15 Usama Bin Laden?
16 A Yes.
17 Q And did people in al Qaeda -- do you recall when this was?
18 MR. SCHMIDT: Objection, your Honor. I think we're
19 talking about a time when the witness says he was not part of
20 al Qaeda.
21 THE COURT: Establish when it is and from whom he
22 learned and how it came about.
23 Q First of all, do you recall when it was, when it was, just
24 telling us the time that you learned that Abu Fadl Makkee
25 might be providing information to a government about Usama Bin
1288
1 Laden?
2 A I don't remember exactly the date but I was in Sudan at
3 that time.
4 Q And do you know if at that time you had been asked to
5 travel to Afghanistan at that time?
6 A I don't remember. Maybe it was after that.
7 Q It was after you refused to go to Afghanistan?
8 A Yes.
9 Q And do you know -- just tell us yes or no -- do you know
10 who told you or how you learned that people believed that Abu
11 Fadl Makkee was providing information?
12 A Well, everyone was talking about Abu Fadl because he was
13 very known that he was very close to Usama Bin Laden, and
14 everybody was talking about him.
15 MR. FITZGERALD: Judge, I don't wish to take up at a
16 sidebar. My view is that --
17 Q Was it your understanding that Abu Fadl Makkee had
18 provided information about what had happen in the past? Yes
19 or no?
20 A Yes.
21 MR. FITZGERALD: Your Honor, I would renew the
22 question: What was it that you were told? What discussions
23 were there among these people as to why it was that Abu Fadl
24 Makkee was providing information, just his understanding.
25 MR. SCHMIDT: Objection.
1289
1 THE COURT: Let me see counsel and the reporter.
2 (Continued on next page)
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1293
1 (Pages 1290 through 1292 sealed)
2 (In open court)
3 THE COURT: We'll take our morning recess.
4 (Recess)
5 (In open court; jury present; witness resumed)
6 MR. FITZGERALD: May I proceed, your Honor?
7 THE COURT: Yes, please.
8 Q Mr. Kherchtou if you can answer this yes or no, please do
9 so.
10 Was there discussion among al Qaeda members as to
11 whether or not Abu Fadl Makkee was providing information to a
12 foreign government?
13 A Yes.
14 Q Now, before the break you had indicated to us that you
15 considered yourself outside of al Qaeda after you did not go
16 back, after did you not relocate to Afghanistan.
17 Did anyone in al Qaeda tell you whether or not al
18 Qaeda considered you a member any more?
19 A No.
20 Q And did people in al Qaeda still talk to you about
21 matters?
22 A No.
23 Q And did you talk to -- just yes or no -- did you talk to
24 Harun about matters after you decided not to go back to
25 Afghanistan?
1294
1 A Yes, I call him about something.
2 Q And did Harun still talk to you openly after you didn't go
3 back or did he stop talking to you openly?
4 A Well Harun was in Kenya while I was in Sudan. I call him
5 about another matter but it's not al Qaeda matter.
6 Q Did he indicate any reluctance to discuss matters with you
7 when you did not go back to Afghanistan?
8 A No. You know, the phone was expensive to, we were talking
9 briefly about what I need from him and that's it.
10 Q And can you tell us what it was that you needed from Harun
11 when you were in Khartoum and he was in Nairobi?
12 MR. COHN: Objection. He's already said it wasn't an
13 al Qaeda matter.
14 THE COURT: Overruled.
15 Q What did you need from Harun?
16 A Well, while I was in Kenya I was trying to get the Kenya
17 citizenship. So Harun told me that there is a way, an easy
18 way for us to get a real Kenyan citizenship. And the way he
19 was explaining that I should go, if I need, I have to go to
20 Kenya to a city called Isiolo.
21 Then I should stay there for awhile for two months or
22 three months or more, after you learn the language, the
23 Swahili language, then you apply for the ID card from the
24 police station and if you get that ID card you can get the
25 passport and you become citizen normally.
1295
1 MR. COHN: Your Honor, I renew my objection and move
2 to strike.
3 MR. FITZGERALD: Your Honor, I offer in part pursuant
4 to Giglio, in part pursuant to something else, which we can
5 set forth at the sidebar.
6 THE COURT: Very well. I'll receive it subject to
7 connection, and you can amplify that when we have the next
8 break.
9 Q Mr. Kherchtou, just answer this question yes or no first.
10 Did Harun indicate to you whether or not any members of al
11 Qaeda had done the same process of obtaining a Kenyan identity
12 card that way?
13 A Yes.
14 Q And wait and see if there is an objection.
15 Did he indicate to you who was it that had said this
16 done that same process?
17 MR. COHN: Objection.
18 THE COURT: Subject to the same ruling, overruled.
19 Q Who was it that had done that?
20 A Mustafa, Mustafa Masry or Nubi, and Shuaib.
21 Q So just so we're clear on how many persons that is,
22 Mustafa is the same person as al Nubi and Shuaib is a
23 different person, correct?
24 A Yes.
25 (Continued on next page)
1296
1 Q Did there come a time when Haroun left Kenya and moved
2 someplace else?
3 A Yes. In 1997, he came to Sudan.
4 Q When Haroun moved to the Sudan in 1997, where did he first
5 stay?
6 A He stayed with me in my apartment with his wife and kids.
7 MR. FITZGERALD: Your Honor, I would offer the
8 following just for the fact that it was said.
9 Q Did Haroun tell you why he left Kenya at that time to go
10 to the Sudan?
11 A He told me that something happened in Kenya, that's why he
12 left, and he came to Sudan to sit down for sometime.
13 Q Did he tell you what it was that happened in Kenya that
14 led him to move to the Sudan?
15 MR. SCHMIDT: Objection, your Honor.
16 THE COURT: I think you should defer this until we
17 have our sidebar conference. If need be, we will come back to
18 it.
19 Q During the time that you were involved with al Qaeda, did
20 the expression being in the hospital have any special meeting?
21 A Jail.
22 Q So if the expression was used that someone was in the
23 hospital, that meant they were in jail?
24 A Yes.
25 Q What about the word books? What did that refer to?
1297
1 A Passport.
2 Q What did the word interior refer to?
3 A It means inside, whether inside Afghanistan or Somalia.
4 Q If a person was in Pakistan and used the word interior,
5 what would that refer to?
6 A Afghanistan.
7 Q If a person was in Kenya, referring to the interior, what
8 would that refer to?
9 A Somalia.
10 Q Let me direct your attention ahead to 1998. Did there
11 come a time in 1998 when you were invited to go to Nairobi?
12 A Yes.
13 Q For what reason did you go to Nairobi?
14 A I got a job offer. That's why I went to Kenya.
15 Q Did this job offer have anything to do with al Qaeda?
16 A No.
17 Q Briefly describe the type of job you were offered.
18 A It's a foreign company that offered me a job. This job,
19 they needed who pilot who speaks Arabic and English, because
20 their main clients are from the Gulf, very rich people that
21 need tourism, so they need somebody to take care of them.
22 That's why I went to Kenya.
23 Q Do you recall approximately when the first time you went
24 to Kenya in relation to this job proposal?
25 A Exactly June 1998.
1298
1 Q Did you go and have a meeting concerning this job proposal
2 in Nairobi in June of 1998?
3 A Yes.
4 Q Can you just describe generally what the person you met
5 with discussed as to what they wanted you to do as part of
6 your job.
7 A On the first day I reached Nairobi, I stayed in Panafrique
8 Hotel. Then I went to his place, I met him.
9 Q Stop there. You said Panafrique. P-A-N-A-F-R-I-Q-U-E.
10 A I met the guy who offered me the job. He explained me
11 that their company are interested in a pilot who speaks
12 English and Arabic, and he gave me a lot of questions, and he
13 told me, before that he told me that the main job is tourism
14 in Kenya or probably in the future in Sudan, and for the
15 meantime he told me that I can give you some questions to
16 answer, it's a lot of questions about the tourism in Sudan.
17 Because I am going back to Sudan, so he needs these questions
18 to be answered. So at the next meeting after three months, I
19 will give him back these answers. The questions was about the
20 tourism in Sudan, different touristic sites, hotels, prices of
21 hotels, taxis, main airports, and the safety in Sudan, and
22 they even mentioned if there any existence of terrorist groups
23 in Sudan. And different travel agencies, main cities, things
24 to see. If there is some brochures from those agencies it
25 would be good.
1299
1 Q If you would just answer this question yes or no. At the
2 time you had this meeting with this person, did you think at
3 the time that this was a legitimate business offer?
4 A Yes.
5 Q After the meeting was over, did there come a time when you
6 met anyone else in Nairobi unrelated to that business
7 transaction?
8 A Yes. I met -- in the next day I met Haroun Ahmed Sheikh
9 Adan.
10 Q Is that the same person you described as Adan?
11 A Yes.
12 Q Tell us how you met them.
13 A I think Saturday I was leaving, the same day that I had my
14 flight to Sudan, and it was noon. I prayed in the mosque,
15 Jamia mosque. There was a small pharmacy there. I was buying
16 some medicine from it, and I heard the voice of Haroun and
17 Ahmed Tawhil talking behind me, just on the main road, and I
18 ran. I left my medicine there and went behind them. I
19 stopped them, and I took my medicine from the pharmacy.
20 Haroun told me that he is right now busy with some people and
21 he told me that those are Abu Ubaidah's wife's family, and he
22 is just going to let them go and he would come back. In the
23 meantime he told me to stay with Abu Tawhil and he would come
24 back.
25 Q The mosque you mentioned was Jamia, J-A-M-I-A?
1300
1 A Yes.
2 Q And you ran into Haroun and Ahmed Tawhil in the area of
3 the mosque, correct?
4 A Yes, it's right in front of Jamia supermarket.
5 Q What did you then do that day with Haroun and Ahmed
6 Tawhil?
7 A For short period Haroun told me to stay with Ahmed Tawhil
8 until he let these guys go, then he would come back to me, I
9 think after an hour or two hours he came to me, and we went
10 together, we made some shopping.
11 Q What happened then?
12 A Then I don't remember whether Ahmed or Haroun took me to
13 the airport.
14 Q Did you go back to Khartoum?
15 A Yes.
16 Q Did there come a time in 1998 when you returned to Nairobi
17 an additional time?
18 A Yes.
19 Q For what reason did you go back to Nairobi the second time
20 in 1998?
21 A That guy that offered me a job, he gave me some questions
22 to answer, so I said I went to Sudan for three months, I did
23 that job, collected all the information they need, and I came
24 back to Kenya to meet him the second time.
25 Q Do you recall the date that you had the meeting with this
1301
1 businessman the second time?
2 A It was on August 6, 1998.
3 Q Who picked the date on which you would meet?
4 A That businessman.
5 Q Did you go back to Nairobi?
6 A Yes.
7 Q What hotel did you stay at this time?
8 A Meridian Hotel.
9 Q Did you have the meeting with this businessman again?
10 A Yes.
11 Q What did you do after the meeting with the businessman?
12 A I went to Mercy International so as to meet Ahmed Tawhil.
13 Q When you went to Mercy International, did you see Ahmed
14 Tawhil there?
15 A No, he wasn't there. Then I left a message for him,
16 saying that now I am living in Meridian Hotel, I will move
17 tomorrow to Ramada Hotel, if he want to see me I will be
18 there, before I leave.
19 MR. FITZGERALD: If I could display the exhibit on
20 the screen to the witness and to counsel only at this moment.
21 Q I ask you to look at Government's Exhibit 616 for
22 identification and ask you if you recognize what it is?
23 A That's the letter I left in Mercy International to Ahmed.
24 MR. FITZGERALD: Your Honor, I would offer
25 Government's Exhibit 616 in evidence.
1302
1 THE COURT: It is in Arabic?
2 THE WITNESS: Yes, sir.
3 MR. FITZGERALD: I will offer a translation later,
4 Judge.
5 THE COURT: Very well, received.
6 (Government's Exhibit 616 received in evidence)
7 MR. FITZGERALD: If we could just display it for a
8 moment.
9 If we could now display to the witness Government's
10 Exhibit 616T for identification only.
11 Q I ask you to look at that and tell us whether or not that
12 is an accurate translation into English of the letter you left
13 for Ahmed Sheikh Adan on August 6, 1988.
14 A Yes, Ramada, there is no Inn, it is only Ramada Hotel.
15 Q Other than that, is that an accurate translation of the
16 letter?
17 A Yes.
18 MR. FITZGERALD: Your Honor, I would offer
19 Government's Exhibit 616T.
20 THE COURT: Yes, received.
21 (Government's Exhibit 616T received in evidence)
22 MR. FITZGERALD: I will read the exhibit to the jury.
23 "In the name of God the merciful and the
24 compassionate, may peace and God's blessings be upon you.
25 Dear brother, Ahmed Sheikh Adan, greetings. Thanks Allah, I
1303
1 arrived in the country and attempted to call you. I learned
2 that you are in Mombasa. I ask you to please call me upon
3 your arrival at Meridian Court Hotel, room 315. I will stay
4 at this hotel Until 10:00 tomorrow morning, Friday. If you
5 don't come, then I'll move to Ramada Hotel, or the one I
6 stayed in last time in Eastleigh. I hope I can see you soon.
7 We are waiting for you. Your brother Yousef Mzunko, Thursday,
8 8/6/1998."
9 Q Can you tell the jury how you signed that letter, what
10 name you were writing.
11 A Yousef Mzunko means Yousef the white, because Ahmed Adan
12 used to call me the white, because in Kenya most of them are
13 black, and he was joking.
14 Q Yousef, in Arabic what does that mean?
15 A Joseph.
16 Q Was that a name you were known by, Yousef or Joseph?
17 A Yes. It was my nickname in Kenya.
18 Q After you went and tried to see Ahmed Tawhil at the Mercy
19 International Relief Agency, did you go visit anyone else in
20 Nairobi that you knew?
21 A Yes. In the first visit to Nairobi in 1998, Haroun showed
22 me where Abu Ubaidah wife's sister working. He told me next
23 time if you come here you can visit them. In the second time,
24 in this visit, I went there, I found her brother Asef, and the
25 wife of Abu Ubaidah herself.
1304
1 Q What general area was it that Abu Ubaidah's wife and
2 brother worked in?
3 A It was Park Road area, or Gunga Road. It's in the same
4 road.
5 Q Do you know, were they in a house or business when you
6 visited them?
7 A No, it was a store selling the alarm things for the cars.
8 Q The last visit in June of 1998, you saw Haroun. Did you
9 make any attempt to see Haroun on this visit?
10 A No -- yes, I had -- he gave me his phone number in the
11 first visit. Then in the second one, I called that phone
12 number from the hotel, Meridian Hotel, but nobody was
13 answering the call.
14 Q Did you ever get through and speak to anyone or learn
15 whether anyone spoke to anyone at that phone number you
16 called?
17 A Yes. I called from the hotel. Nobody was answering.
18 Then I went down to Jamia mosque from the local phone. I
19 called his wife, Haroun's wife answered me.
20 Q Did you have a conversation with her about where Haroun
21 was?
22 A Yes. She told me that he is not here, he is in the
23 airport, he is taking the luggage to the airport, because we
24 are all moving tomorrow -- I mean traveling tomorrow.
25 Q During the time that you stayed in visited Nairobi in June
1305
1 of 1998 and August 1998, what name did you travel under?
2 A My real name.
3 Q Why did you switch from the Meridian Hotel on Thursday,
4 August 6, 1998, to the Ramada Hotel on August 7, 1998?
5 A Because that businessman, I agreed with him in a wage, and
6 he has agreed to pay all my expenses and he will supply and I
7 will supply all the receipts to him. But he paid me three
8 days for that trip. For example, he paid me Wednesday,
9 Thursday, Friday and Saturday I supposed to leave. Then
10 instead of staying in Meridian Hotel paying 30 bucks per
11 night, I went to another hotel in which it is only 10 or less.
12 That's only.
13 Q Let me direct your attention to August 7, 1998. Can you
14 tell the jury what you did that day.
15 A In the early morning I moved from the hotel because it was
16 already paid. I went to Ramada Hotel in Eastleigh.
17 Q What did you do after you checked into the Ramada Hotel in
18 Eastleigh?
19 A It was Friday morning and we have normal prayer of Friday.
20 I was preparing myself to the prayer, but I noticed that many
21 buses are stopped there in Eastleigh, they don't move, nobody
22 was -- nobody understood what is going on in the city. Then I
23 went back to the hotel, I took my shower and I prepare myself
24 for the prayer of Friday. So I went around 11:30, 12 to the
25 mosque, and then in the mosque I learned, because everybody
1306
1 was talking there, that the American Embassy was bombed, I
2 mean blast.
3 Q Where did you go after you learned in the mosque that the
4 American Embassy had been bombed?
5 A I prayed, then I returned back to the hotel.
6 Q Did you see anyone you knew that day?
7 A Yes. Ahmed Tawhil came to my place.
8 Q When you say your place, what do you refer to?
9 A I mean came to Ramada Hotel.
10 Q Tell us about the conversation you had with Ahmed Tawhil
11 on August 7, 1998.
12 MR. SCHMIDT: Objection.
13 THE COURT: I will see counsel at the bench -- were
14 you about to rephrase your question?
15 Q Did you discuss -- yes or no. Did you discuss the fact
16 that the American Embassy had been bombed with Ahmed Tawhil?
17 A Yes.
18 Q Did Ahmed Tawhil and you agree to do anything as a result
19 of that discussion? Yes or no.
20 A No. There is a misunderstanding. I didn't discuss the
21 bombing of the embassy but the fact what happened in Kenya
22 that day.
23 Q Right. You discussed the fact that the embassy had been
24 bombed?
25 A Yes, we talked about what happened.
1307
1 Q Did you agree, the two of you, to do something or did you
2 agree not to do something as a result of the fact that the
3 embassy had been bombed?
4 A Yes. Can I say what did I tell him?
5 Q Yes or no.
6 A Yes.
7 MR. RICCO: Your Honor, I am going to object and I
8 would like to be heard.
9 MR. FITZGERALD: Your Honor, since we are going to
10 have another issue to discuss, I will move on to a different
11 topic.
12 THE COURT: Why don't you move on and we will come
13 back to that.
14 Q Did there come a time when you made plans to actually
15 physically leave Kenya and go to the airport?
16 A Yes.
17 Q Can you tell us, do you recall what day it was that you
18 went to the airport to leave Kenya?
19 A It was in, I think it was Tuesday, 11th.
20 Q Did you actually go to the airport that day?
21 A Yes.
22 Q Tell us what happened when you got to the airport.
23 A Yes. Before that, I went to -- I booked, I went to the
24 Kenya Airways, I started to book for the flight. It was fully
25 booked but I was on waiting list. So I went to the airport
1308
1 and the guy, he told me that you are on waiting list and it's
2 fully booked. I gave him 500 shillings, then he gave me a
3 place in the airplane. And I make my checking normally
4 through the immigration. Nothing happened. Then I went to
5 the lobby waiting for the aircraft.
6 Q Did there come a time when people came to see you and took
7 you away from the airplane?
8 A Yes. It was in the lobby. The same lady who stamped my
9 passport and another man, they came to me and told me, excuse
10 me, are you Houssaine, I said yes, told me to go with them.
11 They took me to security office there in the airport.
12 Q Did there come a time when someone took you away from the
13 security office in the airport to someplace else?
14 A Yes.
15 Q Where were you taken?
16 A They told me we are not arresting you but if you don't
17 mind to come with us. So I went in a van to the police
18 station.
19 Q When you got to the police station, did you stay there or
20 go someplace?
21 A The first station, I understand because they are talking
22 about that is full. Then we go to another police station.
23 Q When you got to that police station, did you stay for a
24 while?
25 A They make me check into the jail. It took one hour.
1309
1 Q How long did you stay at that jail once they took your
2 personal items and put you in the jail?
3 A Three days.
4 Q Did there come a time when you were interviewed by someone
5 in the jail who was not with a Kenyan official?
6 A Yes.
7 Q Without identifying who the person said that he was or
8 what country that he said that he was, did this person
9 identify to you what it was that he did for a living?
10 A Yes, he gave me his name and his service in which he is
11 working with.
12 Q By service, what do you mean?
13 A Intelligence service.
14 Q Did you understand this person to be an intelligence
15 officer from a country other than Kenya or the United States?
16 A Yes.
17 Q What happened after you met this person?
18 A Well, he started interrogating me, and he told me that he
19 is here so as to help me, but before that he brought a
20 recorder and a microphone, and he was recording everything we
21 are going to talk about. And he started talking about
22 everything that he knew. He know me very well, my wife, my
23 kids and my life. So I started talking to him.
24 Q For how many days, approximately, did you talk to this
25 person from a foreign intelligence service?
1310
1 A Probably four or five days.
2 Q Did you tell him everything that you knew during that
3 interview?
4 A I told him a lot of things but not everything.
5 Q Did you tell him during that interview about the fact that
6 Abu Mohamed al Amriki, Anas al Liby, and Hamza Al Liby had
7 come to your apartment to develop photographs?
8 MR. SCHMIDT: Objection, your Honor.
9 THE COURT: Overruled.
10 Q Yes or no.
11 A No.
12 Q Did there come a time when you got out of the jail in
13 Kenya?
14 A Yes.
15 Q To get out of the jail in Kenya, did you agree to do
16 anything for the foreign intelligence officer who had been
17 interviewing you?
18 A Yes.
19 Q What did you agree to do?
20 A He told me I will help you so as to get out from this
21 jail, and against that, I will work with him.
22 Q What did you understand he wanted you to do as work for
23 him?
24 A I mean I will work against al Qaeda for him.
25 Q What did he exactly want you to do? How would you go
1311
1 about working against al Qaeda?
2 A I mean to supply information for him, to give him all
3 information I know.
4 Q Did you get out of the jail?
5 A Yes.
6 Q Did you leave Kenya?
7 A Yes.
8 Q Where did you go?
9 A To Sudan.
10 Q Did you have any agreed story that you would give to
11 people who asked you what happened in Sudan?
12 A Yes, we had a cover story, that I went there in Kenya and
13 I met the businessman there. After that I was leaving from
14 the airport, they caught me because of the bombing of the
15 United States Embassy, and that businessman came to the police
16 station asking about me, and when they found out that I met
17 him and everything was OK, they released me.
18 Q What was your understanding of whether or not you were
19 supposed to contact this intelligence officer again once you
20 got back to the Sudan?
21 A I agreed that I will contact him after three months.
22 Q Did you go back to the Sudan?
23 A Yes.
24 Q After three months, what did you do?
25 A I didn't contact him.
1312
1 Q When you went back to the Sudan, how long had you spent in
2 a jail in Nairobi following the bombing, approximately?
3 A Eleven days.
4 Q When you got back to Sudan, how were you feeling -- strike
5 that.
6 When you got back to the Sudan, did you see any
7 members of al Qaeda who were still in the Sudan?
8 A Yes.
9 Q Do you recall who it was that you saw?
10 A Talha al Sudani.
11 Q Was he a member of al Qaeda?
12 A Yes.
13 Q Tell us the conversation you had with Talha when you saw
14 him.
15 A When I saw him I was very angry first. I told him why --
16 because I told him why have you done this, why you didn't tell
17 me anything. He told me he was afraid to tell me something,
18 then I won't listen to him, if he tell me, for example, don't
19 go to Kenya I won't go, I won't even listen to him. And he
20 said thanks God that you are coming back. He didn't say
21 anything else.
22 Q Let me back up. Did Talha the Sudani know that you were
23 going to Nairobi before you went there?
24 A Yes, he know, because in the first meeting he know. I
25 told him that I met Haroun in Kenya and he sending his
1313
1 greetings to you and he is OK, and he knew that after three
2 months I will go back to Kenya.
3 Q So what is it, as best you can recall, you said to Talha
4 in the conversation after you got back to the Sudan, and what
5 he said to you?
6 A I told him why he didn't tell me anything if he knew
7 something that's going on in Kenya, and he was hesitating, he
8 told me I was afraid if I tell you something you won't listen
9 to me.
10 Q Did he ever indicate in any way that he did not know that
11 something was about to happen in Kenya when you traveled
12 there?
13 A I understood that he knew something.
14 Q Did there come a time following this that your family
15 moved, your wife and children moved to Morocco?
16 A Yes.
17 Q Did there come a time after that when you moved and
18 rejoined your family in Morocco?
19 A Yes.
20 Q Did there come a time after that, without telling us where
21 you went, that you agreed to leave your family to travel
22 someplace else to meet with another intelligence service,
23 different than the one you had seen in the Kenyan jail?
24 A Yes.
25 Q When you agreed to go meet this other intelligence
1314
1 service, did you understand at that time that you would be
2 meeting with any American officials?
3 A Yes.
4 Q When you left to go meet the other intelligence service,
5 we will call it the fourth country, did they tell you in
6 advance that the American officials would be there?
7 A No.
8 Q When you traveled, without telling us where you went, and
9 met with this fourth country intelligence service, who did you
10 meet -- strike that. Did you meet any Americans?
11 A Yes.
12 Q Did you agree to speak to the Americans during that
13 meeting?
14 A Yes.
15 Q For how long were you speaking to the American
16 authorities?
17 A Two weeks.
18 Q At the very beginning, did you tell the American
19 authorities everything you knew about al Qaeda and about
20 Nairobi?
21 A No.
22 Q Did you tell the American authorities, for example, about
23 Abu Mohamed al Amriki, Anas al Liby and Hamza Al Liby coming
24 to Nairobi to develop photographs?
25 A No.
1315
1 Q At the end of the two weeks of meetings, did you agree to
2 come to America?
3 A Yes.
4 Q Did you eventually come to America?
5 A Yes.
6 Q Approximately what month did you come to America?
7 A It was in September 21.
8 Q Of what year?
9 A 2000.
10 Q After you came to America, did you enter into an agreement
11 with the United States government?
12 A Yes.
13 Q What do you understand you are obligated to do as part of
14 that agreement?
15 A That I should come here to testify today and I will pled
16 guilty, then after that I will go to the program.
17 Q Let's go through that a little more slowly. Did you in
18 fact plead guilty?
19 A Yes, I did.
20 Q Do you know what the maximum penalty and the minimum
21 penalty you may face as a result of your plea of guilty?
22 A Yes. It was between zero and life.
23 Q That means you could get as little as no time in jail or
24 as much as life in prison?
25 A Yes.
1316
1 Q At the time that your sentence is imposed, do you have an
2 understanding of anything that the government, the prosecution
3 will do for you at the time that the judge decides what
4 sentence to impose?
5 A Well, you will just write a letter saying what I have done
6 for the government, but they can't do anything about the
7 sentence.
8 Q Is it your understanding that the letter may benefit you
9 at the time the judge imposes sentence?
10 A It can benefit me, yes.
11 Q Is it your understanding that that is a guarantee that it
12 will benefit you?
13 A No.
14 Q And you mentioned that they will put you in the program.
15 What are you referring to?
16 A It was Witness Protection Program.
17 Q Do you expect to be admitted in the Witness Protection
18 Program?
19 A Yes.
20 Q Has the government relocated your family to the United
21 States?
22 A Yes.
23 Q Do they expect to join you in the Witness Protection
24 Program?
25 A Yes.
1317
1 Q Since the time in September of 2000 when you came to the
2 United States, have you been in the custody of the FBI around
3 the clock?
4 A Yes.
5 Q During that time, have the expenses of you and your family
6 to live here in the United States been paid by the United
7 States government?
8 A Yes.
9 Q Let me approach you with a number of exhibits which have
10 been marked for identification as 202A-T, 203A-T, 204A-T,
11 204B-T, 205A-T, 207A-T, 207B-T, 207C-T, 208A-T, 209A-T,
12 209C-T, 210A-T, 211A-T, 211B-T, 211C-T, 211D-T, 212A-T,
13 213A-T, 214A-T, 215A-T, 216A-T, 217A-T, 218A-T, 219A-T,
14 220A-T, 220B-T, 221A-T, 222A-T, and 223A-T.
15 Those items are not now in evidence, so please do not
16 describe what is in there other than in response to my
17 questions. Have you reviewed those items prior to testifying
18 in court?
19 A Yes.
20 Q Did you listen to a tape or CD Rom of conversations on a
21 tape and compare the conversations on the tape with the items,
22 the transcripts that are before you? Yes or no.
23 A Yes.
24 Q If you look at the various conversations before you, at
25 the top of the page on the first page, it identifies the names
1318
1 of the persons speaking. Did you review each transcript to
2 identify the names of the persons speaking?
3 A Yes.
4 Q Let me make a few exceptions. Is there a reference at one
5 point to a person from DHL, a company?
6 A Yes, it is.
7 Q Is that a person that you know personally from DHL?
8 A No.
9 Q And there is a reference to a person at one point from Abu
10 Khadija, and is that a person who said his name on the phone
11 was Abu Khadija?
12 A No, that is not Abu Khadija that I know.
13 Q Did the person speaking on the phone give his name as Abu
14 Khadija?
15 A He said Abu Khadija, but that's not the one I know.
16 Q So the person who identified himself on the phone as Abu
17 Khadija is not the Abu Khadija that you know?
18 A Yes.
19 Q What is the full name of the person that you know?
20 A Abu Khadija is the commander Abu Hafs el Masry. He can go
21 by Abu Khadija, or there is another Abu Khadija al Iraqi.
22 There are two.
23 Q To make that clear, there are two Abu Khadijas. One is
24 Abu Khadija the Iraqi and the other one a Abu Hafs el Masry,
25 the commander, right?
1319
1 A Yes.
2 Q On the transcript concerning Abu Khadija, is the voice
3 that you hear as Abu Khadija the same voice that you know as
4 Abu Khadija al Iraqi?
5 A No.
6 Q The voice that you hear as Abu Khadija, is that the same
7 voice as the voice you know as Abu Hafs el Masry, the
8 commander?
9 A No.
10 Q With those qualifications, are the names of the speakers
11 identified correctly on each of the transcripts?
12 A Yes.
13 Q Did you then go through the transcript and verify that the
14 words reflected on the transcript are accurately translated
15 from Arabic into English?
16 A Yes.
17 (Continued on next page)
18
19
20
21
22
23
24
25
1320
1 MR. FITZGERALD: Your Honor, at this time I will not
2 offer those exhibits, subject to further discussion. If I may
3 have one moment.
4 Your Honor, with the exception of the two matters
5 reserved for a sidebar, I have no further questions.
6 THE COURT: Very well. We will take a recess now. I
7 understand you have ordered lunch, right? We will take a
8 recess. Whether we will come back before lunch or not, I
9 can't tell you. I can't tell you because I don't know.
10 (Jury excused)
11 (Witness excused)
12 THE COURT: Can we take up these matters in open
13 court?
14 MR. FITZGERALD: I believe so, your Honor.
15 THE COURT: Bear in mind we are in open court.
16 There was one matter that you wanted to return to,
17 which was with respect to the bombing, and he had discussions,
18 and then you said as a result of the discussion they agreed to
19 something -- yes.
20 MR. FITZGERALD: Yes, Judge. As a result of the
21 discussion they agreed not to meet any further in Nairobi, in
22 light of the fact that there was a bombing, and they had a
23 private relationship with al Qaeda, they thought they should
24 not be seen together. I don't care whether we elicit it or
25 not. I just don't want the defense to cross-examine the
1321
1 witness and engage in conduct to try to avoid scrutiny. If
2 that is not going to be the subject of cross-examination, then
3 I don't care.
4 MR. RICCO: Your Honor, the basis of my objection was
5 that --
6 THE COURT: But that's irrelevant. The government
7 says it is not interested in pursuing it unless the defendants
8 intend to pursue it.
9 MR. RICCO: We intend to pursue it and the reason I
10 objected was because the way in which the testimony was coming
11 in based on Mr. Schmidt's objection would mislead the jury
12 with respect to the facts of that conversation. So I object
13 to the witness having to testify in such a circumscribed
14 manner. I would not have objected to the witness testifying
15 about the conversation that he had with Tawhil at the time he
16 had the conversation.
17 MR. SCHMIDT: I agree, your Honor.
18 THE COURT: So how do we leave it?
19 MR. RICCO: I think that the witness should be asked
20 to explain that conversation and then testify about it.
21 MR. SCHMIDT: I am perfectly willing to do it on
22 cross-examination.
23 MR. FITZGERALD: And I am not perfectly willing to
24 let Mr. Schmidt object and then get into an area that we can't
25 talk about.
1322
1 MR. SCHMIDT: I object that the full conversation
2 should not have gone in.
3 THE COURT: If that is your objection, then it should
4 not be the subject of cross-examination. Mr. Fitzgerald is
5 absolutely right, you can't keep something out and then make
6 hay before the jury on the fact that it was not previously
7 elicited.
8 MR. SCHMIDT: Your Honor, if it was kept out I would
9 not have had to cross-examine on it. It is brought out in a
10 manner that is misleading and therefore I have to make sure
11 that the jury is not left with a misleading idea of what
12 happened.
13 THE COURT: What we have now in the record is that he
14 had a discussion with Tawhil, and as a result of the
15 discussion they reached an agreement, and then he made plans
16 to leave Kenya. Right? So what we are missing is that the
17 agreement was that they should not meet and that they should
18 leave Kenya? Is that the agreement?
19 MR. SCHMIDT: There is so much more than that, your
20 Honor.
21 MR. FITZGERALD: Your Honor, let me tell you the
22 whole conversation. The government wasn't trying to mislead.
23 Because of the objection I was going much more narrowly. I
24 would like the full conversation before the jury which
25 included the remark by Ahmed Tawhil that he had seen some Arab
1323
1 people, he used some Swahili word saying red-skinned, with
2 Haroun, and he wondered what that was about, and they agreed
3 we should not be seen together. When there was an objection,
4 I went only for the part where they agreed not to be seen with
5 each other. I am perfectly happy to have the entire
6 conversation come out because I think it goes to Ahmed
7 Tawhil's state of mind res gestae where he saw all these
8 people not from Kenya.
9 THE COURT: All this becomes relevant with respect to
10 later testimony that you intend to produce with respect to
11 Haroun and actions --
12 MR. FITZGERALD: The principal organizer of the
13 bombing.
14 MR. SCHMIDT: I would object to that portion about
15 what Ahmed Sheikh told this witness about not being part of
16 this conspiracy. I object to the government eliciting from
17 this witness that they discussed the bombing. In the 3500
18 material, the discussion was the subject asked Ahmed Tawhil
19 what had happened, and he said he didn't know.
20 THE COURT: He has made that clear. When first asked
21 was there some discussion about the bombing, he had some
22 objection to the way the question was worded because he said
23 something about we didn't discuss the bombing other than that
24 it had happened.
25 MR. SCHMIDT: That it was bombed, and in his 3500
1324
1 material, neither he nor Ahmed Tawhil at that time believed
2 that the embassy was bombed. He said that he later learned
3 that the embassy had blown up because everybody was talking
4 about it, but until then he thought that an airplane had
5 crashed or dropped something in the area.
6 THE COURT: I think we can cut this short. Are you
7 now telling the court that it is your intention on
8 cross-examination to elicit the entire substance of that
9 discussion, the discussion between Tawhil and the witness
10 which was the day of the bombing?
11 MR. SCHMIDT: No, I am not. I am wishing to elicit
12 the portion that will make the testimony of the witness
13 clearer and more accurate, but not the whole thing. That is
14 inappropriate.
15 THE COURT: What is it that you believe will do that?
16 MR. SCHMIDT: That when he talked to Haroun, neither
17 one knew what happened to the American Embassy -- excuse me.
18 When he talked to Ahmed Sheikh, that neither of them knew that
19 the embassy was bombed. He didn't learn about the embassy
20 being bombed until later, after he talked to Ahmed Sheikh.
21 That's what I want to bring out.
22 THE COURT: What is it that precipitates the decision
23 not to be seen and to leave?
24 MR. SCHMIDT: Because he is afraid -- as he says,
25 your Honor, he was afraid of having problems like being
1325
1 arrested because he expected to be arrested in a country like
2 Kenya. That's why they didn't -- that's why he said he didn't
3 want to be seen together.
4 MR. FITZGERALD: Your Honor, the witness understood
5 the first time that day that the embassy -- an event happened,
6 he thought either a plane crashed or the plane dropped
7 something. If a plane drops something on an embassy, they are
8 thinking a bombing of terrorist attack. To interrupt me and
9 say you can't ask about the conversation and then get up and
10 say that he is going to bring out the accurate version before
11 the jury I think is improper.
12 THE COURT: I agree and I think it is called
13 sandbagging.
14 MR. SCHMIDT: No, it is not. What the government was
15 trying to bring out was a pure hearsay statement about what
16 Ahmed Sheikh told this witness about seeing Haroun. That is
17 improper.
18 THE COURT: Excuse me. Why is it objectionable on
19 direct as hearsay but permissible on cross?
20 MR. SCHMIDT: When I objected you overruled my
21 objection and you allowed Mr. Fitzgerald to go into it in a
22 limited way, and it is misleading.
23 THE COURT: I didn't. I sustained your objection.
24 And Mr. Fitzgerald said we will return to it later, and then
25 he didn't elicit the discussion but he used the classic way of
1326
1 avoiding a hearsay problem by saying as a result of the
2 discussion what did you do?
3 MR. SCHMIDT: And it came out that he said something
4 that he previously now says that is a prior innocent
5 statement. He can't allow a statement that is misleading when
6 he has a statement that clears it up.
7 THE COURT: On your representation that you plan to
8 elicit this on cross and to obviate any suggestion which might
9 be presented to the jury that the government was not bringing
10 out something which it should have which you are now eliciting
11 on cross, I will permit the government to ask this witness, I
12 hope briefly and in general form, what that discussion was.
13 MR. SCHMIDT: Your Honor, I have no objection to that
14 except for the portion about what Ahmed Sheikh said about
15 seeing Haroun. That's the only thing that I have an objection
16 to. That is double hearsay, it should not come in. The other
17 portion, so it doesn't appear that this witness is withholding
18 something, I have no objection.
19 MR. FITZGERALD: But that goes exactly to the state
20 of mind because Mr. Schmidt is going to stand up and argue
21 that there was nothing they thought they had done wrong or
22 anyone they knew had done wrong, leaving out the fact that
23 Ahmed Sheikh had seen the people, and then leave out the
24 Kenyans.
25 THE COURT: You want to say what is it that caused
1327
1 you to say apprehensive?
2 MR. FITZGERALD: Then I will get a leading objection.
3 THE COURT: No, you won't, because I think we are
4 obviating -- you can't circumscribe the testimony of the
5 witness without permitting some degree of leading.
6 MR. FITZGERALD: My only question is, is it fair game
7 to ask the witness his understanding of what Ahmed Tawhil
8 said. Tawhil indicated on the one hand his surprise at the
9 bombing but on the other hand the fact that Haroun was with
10 people from out of the country at the same time.
11 THE COURT: And this is not being offered for the
12 truth but being offered for the reason why he reached this
13 decision? Or is it is this being offered for the truth?
14 MR. FITZGERALD: That part is not being offered for
15 the truth unless Mr. Schmidt is now going to get up and argue
16 that there was no reason for them to be concerned about their
17 links to al Qaeda and all this was was a fear of the Kenyan
18 authorities.
19 THE COURT: That's an argument that he may make at
20 some later date which I don't think we can preclude. All
21 right.
22 MR. SCHMIDT: Your Honor, will you instruct the jury
23 then that if that statement comes out about what Ahmed Sheikh
24 said, it goes to state of mind and to the truth?
25 THE COURT: It goes to his state of mind and
1328
1 explanation for what he did thereafter.
2 Now there were some other matters.
3 MR. FITZGERALD: The second topic had to do with
4 Haroun moving to the Sudan in 1997. Haroun at first lived
5 with this witness in the witness's house with his family.
6 Haroun said that he had left Kenya because there was a
7 problem. The problem was that Wadih El Hage had come back
8 from Afghanistan, his home had been searched, items had been
9 taken, including a computer, and Haroun decided to leave
10 Kenya. So it explains the state of mind of Haroun in 1997 to
11 leave Nairobi to go to the Sudan because he is seeking this
12 witness's assistance to stay with him because he wants to get
13 away from whatever evidence was recovered in the search.
14 THE COURT: Now you are trying to prove Haroun's
15 state of mind? How do you do that?
16 MR. FITZGERALD: Coconspirator statement by Haroun
17 informing another coconspirator what is going on with regard
18 to the discovery of items related to their past involvement in
19 Kenya.
20 THE COURT: The other coconspirator being?
21 MR. FITZGERALD: This witness and Haroun.
22 THE COURT: Is he still a coconspirator at the time
23 of the statement?
24 MR. FITZGERALD: I believe so. He may not be a
25 member of al Qaeda but, as we can see from the way the
1329
1 defendants are charged, it doesn't matter whether you consider
2 yourself in the uniform of al Qaeda as opposed to being part
3 of the conspiracy.
4 THE COURT: We are clearly in the context of persons
5 who are seeking to avoid detection of the conspiracy, so that
6 even if they are no longer coconspirators, if they are
7 agreeing as to steps designed to avoid detection, then the
8 statement would be admissible. Is there any quarrel?
9 MR. COHN: Maybe I am missing the facts. I gather
10 that all he is going to say is I am leaving because I had a
11 problem. How does that tell us anything about his state of
12 mind? He could have a problem because he had warts. Or am I
13 missing some fact here?
14 MR. FITZGERALD: Yes. There will be nothing about
15 warts. He will say that Wadih El Hage's house was searched --
16 MR. COHN: He is going to say that in terms.
17 MR. FITZGERALD: If it is ruled admissible.
18 THE COURT: And I will allow it. I think it is
19 admissible for the reasons I have just stated.
20 What else happens today? So he comes back and you
21 elicit this, which takes five minutes, and then what happens?
22 Then we take a recess?
23 MR. FITZGERALD: Yes, Judge. I think the next two
24 items of business had to do with the computer and I know
25 Mr. Karas and Mr. Schmidt and Dratel have been talking about
1330
1 whether or not there is a stipulation as to the authenticity
2 of the documents on the computer and the translations, and I
3 don't know where that stands.
4 MR. KARAS: I think we need some more time to try to
5 work it out, is where it stands.
6 THE COURT: You know, I am at a very pragmatic low
7 level. I am just trying not to have a jury which is having
8 problems in their personal relationships just sit together in
9 the jury room with nothing to do.
10 MR. FITZGERALD: On a practical level, given the odds
11 that that will not be worked out over lunchtime, the most we
12 could possibly get, and I don't know if we will get there, is
13 on the wiretap conversations, which we have to go through
14 conversation by conversation. I don't know that we will get
15 through very much for a half hour. I don't know whether it is
16 worth the bang for the buck.
17 THE COURT: I thought it would take the afternoon.
18 MR. FITZGERALD: Most of them are three pages. There
19 are 30 conversations. We will spend more time trying to
20 determine what gets in and what gets out than the reading. We
21 thought we were going to do the computer stuff before that.
22 Once we learned that we are going to be finished today and not
23 cross, we tried to move the computer stuff in and get this
24 stuff behind it. With the computer stuff being on hold --
25 THE COURT: Yes. You are saying that after the
1331
1 agreement is reached you have about a half hour?
2 MR. FITZGERALD: Yes, if there is no agreement on the
3 computer items, which it sounds like there won't be today.
4 THE COURT: If there is agreement on the computer
5 items?
6 MR. SCHMIDT: Your Honor, on the basis of the
7 discussions with Mr. Karas and I, we are not going to reach a
8 permanent agreement today. We would like to reach an interim
9 agreement that will allow the documents to come in and either
10 a stipulation or a witness who will testify next week to
11 complete the authenticity process. It could be done if your
12 Honor wants to use that time.
13 THE COURT: I think I should send the jury home. I
14 get votes. Rarely have I said anything which has received
15 such agreement. Is it acceptable that I just go in the jury
16 room and tell them to go home --
17 MR. COHN: We have to go over those two things.
18 MR. FITZGERALD: Judge, I believe there is one more
19 transcript that wasn't finalized this morning that I may just
20 offer Monday. That should take very little time.
21 (Pause)
22 THE COURT: I don't want Mr. Schmidt or Mr.
23 Fitzgerald or anybody else, I don't want Monday morning at
24 10:00 to be confronted with the inability of counsel to reach
25 an agreement, because if counsel can't reach an agreement and
1332
1 it is something which requires the court's intervention, I am
2 available all this afternoon and tomorrow at least in the
3 early part of the day.
4 MR. SCHMIDT: Thank you, your Honor. It is just
5 whether a witness is necessary or not. Thank you for making
6 yourself available.
7 (Jury present)
8 (Witness resumed)
9 MR. FITZGERALD: Judge, before we proceed, did you
10 wish to give the instruction regarding the first topic area
11 prior to the questions, that it was being offered not for the
12 truth of the matter asserted?
13 THE COURT: The question that you are about to ask
14 now?
15 MR. FITZGERALD: Yes.
16 THE COURT: Yes. The testimony which is about to be
17 elicited, again, is testimony which is being offered not for
18 the truth of what the speaker said but for the state of mind
19 of this witness, for your consideration in terms of the
20 actions that he took thereafter. The shorthand of that from
21 here on in is not for the truth.
22 (Continued on next page)
23
24
25
1333
1 BY MR. FITZGERALD:
2 Q Mr. Kherchtou, can you tell us, going back to August 7,
3 1998, the conversation you had with Ahmed Tawhil, can you just
4 tell us what was said during the conversation, what he said,
5 what you said.
6 A Well, I met him. I think we had lunch together and we
7 were talking -- I told him first what happened. He told me I
8 don't know -- I told him what happened. He told me that he
9 doesn't know, he is like me, he doesn't know what happened,
10 and I told him please don't come back to see me because in
11 this situation I was afraid and I don't need any problem here.
12 He said it's OK. And I told him -- and he told me that he saw
13 some Arabs -- sorry -- he saw some redskins here in -- prior
14 that time in Kenya.
15 Q What does redskins mean to you?
16 A Well, he called me a whiteskin, or mzungu, and redskins, I
17 understand they are not black but they are white -- I mean
18 Arabs.
19 Q Tell us what Tawhil said, Ahmed Tawhil said he saw, who he
20 saw them with.
21 A He saw them with Haroun.
22 Q At the time of this conversation, what did you think had
23 happened at the embassy? Did you know whether or not it had
24 been bombed or what else had happened to it, if you recall?
25 A At that time I learned that it was bombed, that the
1334
1 embassy was bombed, in the mosque.
2 Q What did they tell you at the mosque about the bombing?
3 A When I went to the mosque, people that are talking about,
4 I asked Kenyan guy, he looks like Indian, and he told me what
5 happened, he told me that he heard American Embassy was,
6 somebody dropped a bomb from the aircraft on the embassy.
7 Q So at that time you thought an airplane was involved in
8 the incident?
9 A Yes.
10 Q Let me direct your attention ahead to a conversation that
11 you said that you had with Haroun in the Sudan in 1997. Can
12 you tell the jury what Haroun told you about what his reasons
13 were for leaving Kenya to go to the Sudan?
14 A He came because Wadih El Hage left to United States.
15 Q Did he tell you, did Haroun tell you why it was that he
16 decided to leave Kenya, what had happened?
17 A He told me that Wadih El Hage was in Pakistan, and on his
18 way back he called his home, saying that he is coming, but in
19 the airport he met some Kenyan officials, Kenyan intelligence,
20 and some other Americans, and the Americans told him that
21 these guys, they don't want you to stay in their country, and
22 since you are American it's better if you go back to your
23 country. And after that, they took everything in his house,
24 including the computer, all the documents, and he traveled
25 with his family to United States.
1335
1 MR. FITZGERALD: Thank you, Judge. I have nothing
2 further.
3 THE COURT: Ladies and gentlemen, we are going to
4 call it a day, and we are going to defer the cross-examination
5 of this witness until Monday. There are some other matters
6 which require our attention. I understand your lunch has been
7 ordered and should be here within the next 10 or 15 minutes.
8 It is your option whether you want to stay and have lunch or
9 want to call it a day, in which case your lunches will be
10 consumed by other people.
11 (Laughter)
12 THE COURT: Some of the marshals are a little heavier
13 than others.
14 Have a good weekend. Please remember what I said
15 about not reading or listening to anything about the case, and
16 we will resume on Monday at 10 a.m.
17 JURORS: Thank you.
18 (Jury excused)
19 THE COURT: I will see counsel and the reporter in
20 the robing room.
21 (Pages 1336-1344 sealed)
22 (Proceedings adjourned until 10:00 a.m., Monday,
23 February 26, 2001)
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1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 L'HOUSSAINE KHERCHTOU...1249
5 GOVERNMENT EXHIBITS
6 Exhibit No. Received
7 111 ........................................1254
8 120 for identification .....................1254
9 115 ........................................1256
10 4 ..........................................1257
11 118 ........................................1269
12 616 ........................................1302
13 616T .......................................1302
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