7 May 2004
On May 1, 2004, the New York Times reported (story below) on secret -- and illegal -- videotaping by US Marshals of an informer against Al Qaeda in the USA v. Usama Bin Laden, et al trial held in 2001 in the Sourthern District of New York which concluded just prior to 9/11. (Trial transcripts: http://cryptome.org/usa-v-ubl-dt.htm)
As the Times reported:
It was an extraordinary coup: in the late 1990's, federal prosecutors sat down to interview their first major informer against Al Qaeda — Jamal Ahmed al-Fadl, a former payroll manager for Osama bin Laden who would become the government's chief witness in its first trial of Qaeda operatives.But it was followed by an extraordinary blunder: for two years, even as the authorities cloaked Mr. Fadl in the secrecy of the federal witness-protection program, keeping him in undisclosed locations and communicating with him in videoconferences through a special telephone hookup, many hours of those conversations were recorded on videotape.
The taping, which the government says was done by someone in the federal marshals service and discovered in 2002 by prosecutors and the F.B.I., violated the established practice and the very mission of witness protection. Such recordings are not made because they could reveal deadly clues about the identity and location of the informer — particularly one as high risk as Mr. Fadl, who is unharmed but still hidden and may be called again to testify in terrorism trials.
Now the videotapes, 28 hours of them, are complicating the government's case against the four men Mr. Fadl helped convict of conspiring in the 1998 bombings of two United States Embassies in East Africa and other terrorist acts.
After prosecutors learned of the tapes' existence, months after the trial, they gave the defense 647 pages of transcripts under a strict court order of confidentiality. Defense lawyers are now requesting new trials, contending in papers unsealed this week in Federal District Court in Manhattan that the tapes should have been disclosed earlier and would have helped them discredit Mr. Fadl, an assertion that prosecutors reject.
But whoever wins that legal tussle, the transcripts — excerpted in the defense papers — offer an unusually intimate look at the government's complex and often delicate dealings with its primary witness in the war on terrorism before 9/11.
On May 3, Cryptome searched the electronic court records of the case to see if the transcripts were available to the public, and if so to publish them. Redacted transcripts were listed in the court docket:
692 Filed: 04/28/2004 Entered: 04/29/2004 Memorandum in Opposition to Motion Full docket text for document 692: MEMORANDUM in Opposition by UNITED STATES OF AMERICA as to Wadih El Hage, Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali re [615] Motion for New Trial (jw, ) ----- 693 Filed: 04/28/2004 Entered: 04/29/2004 Remark Full docket text for document 693: Exhibits to Government's Memorandum of Law in Opposition to the Defendant's Motion for a New Trial Pursuant to Fed.R.Crim.P. 33. by UNITED STATES OF AMERICA as to Wadih El Hage, Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali. (jw, ) ----- 694 Filed: 04/30/2004 Entered: 05/03/2004 Motion for Discovery Full docket text for document 694: MOTION for New Trial. MOTION for Discovery. MOTION for evidentiary hearing. MOTION for such other and further relief as to the Court seems just and proper (pursuant to Rule 33, Fed. R. Crim. P.). Document filed on behalf of dft Wadih El Hage. (REDACTED) (ja, ) ----- 695 Filed: 04/30/2004 Entered: 05/03/2004 Declaration in Support of Motion Full docket text for document 695: DECLARATION of Joshua L. Dratel in Support as to Wadih El Hage, re: [694] MOTION for New Trial. MOTION for Discovery. MOTION for evidentiary hearing. MOTION for such other and further relief as to the Court seems just and proper. (REDACTED) (ja, ) ----- 696 Filed: 04/30/2004 Entered: 05/03/2004 Memorandum in Support of Motion Full docket text for document 696: REPLY MEMORANDUM in Support as to Wadih El Hage, re [694] MOTION for New Trial. MOTION for Discovery. MOTION for evidentiary hearing. MOTION for such other and further relief as to the Court seems just and proper. REDACTED. (ja, ). Modified on 5/3/2004 (ja, ). -----
On May 4, Cryptome went to the Public Records Office for the Southern District of New York to copy the transcripts and was told by the clerk the documents were not available, and that they might be held by Judge Kevin Duffy for use in an active case.
Cryptome then visited Judge Duffy's chambers to inquire about when the documents might be made public. Cryptome told a secretary the purpose of the visit was to obtain the Bin Laden documents for publication on the Internet. She said the judge was at lunch and asked that Cryptome return in half an hour.
Upon returning to the judge's chambers, a clerk of the judge told Cryptome that the judge was still not in and that no documents could be released without the judge's approval -- that there were unredacted and redacted versions of them. He promised to telephone later in the day to say when the redacted version would be available in the Public Records Office.
After leaving the judge's chambers Cryptome went back to the Public Records Office to report what Judge Duffy's clerk said. The records clerk said since you were here earlier I now recall that the documents are being processed and will be available tomorrow morning after 11 AM.
That afternoon Judge Duffy's clerk telephoned Cryptome to say that the documents would be available at the Public Records Office, "tomorrow," May 5.
Cryptome went to the Public Records Office on the morning of May 5 and was told by the records clerk that the documents had not arrived. The records clerk said she could not explain why the documents had not arrived, and that she was mistaken in saying they would be available after 11 AM on May 5. She said they might arrive later in the day.
Cryptome asked to see the file folder and found within it Judge Duffy's order, Docket Number 697, on releasing the redacted versions to the public:
DOC #697U.S. DISTRICT COURT
FILED
APR 30 2004
S.D. OF N.Y.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK------------------------------------------------ UNITED STATES OF AMERICA
-v-
USAMA BIN LADEN, ET AL ...
Defendants
------------------------------------------------
X
:
:
:
:
:
:
:
XORDER
KEVIN THOMAS DUFFY, U.S.D.J.
A motion under Rule 33 was filed in this case under seal. Answering papers were similarly filed under seal. The parties have agreed to a redacted version of all these papers to be filed without sealing so that the redacted papers will be available to the public.
Relying upon the agreement of the counsel for the parties, this court directs that the redacted copies be placed in the open files of the Clerk's Office.
SO ORDERED
DATED: New York, New York
April 28, 2004
[Signed]
KEVIN THOMAS DUFFY
United States District Judge
Thus, the judge's order -- which was numbered to follow the redacted documents -- was in the public folder but not the documents themselves.
Cryptome returned to the Records Office in the afternoon and was told that the documents had not arrived.
Cryptome then went to Judge Duffy's chambers to report on the absence of the documents. The judge's clerk said let me check with Judge Duffy -- who was in. After checking with the judge, the clerk said the documents would be available tomorrow, May 6. Cryptome went back to the Records Office to tell the records clerk that the documents would arrive on May 6.
Today, May 7, Cryptome went to the Records Office and was told the documents still had not arrived. For an hour Cryptome reviewed all the case files in the public folder to see if the latest documents had been misfiled, but none were found.
The folder contained numerous documents that were once sealed and later unsealed, most involving ostensible protection of national security means and methods or other on-going investigations allgedly related to Bin Laden and terrorism. Several unsealed defendant documents allege illegal use of FISA electronic surveillance, prosecutorial materials obtained by illegal means and manipulation of witnesses. Strangely, most of the presiding judges' (Judge Leonard Sand who presided at trial, then Judge Duffy who was assigned the case) orders were missing. The clerk said many documents were missing due to their use in appeals.
In the case folder is a transcription of a hearing concerning the New York Times' attempt to have documents unsealed early in the case involving a "John Doe" the Times had publicly identified. In the transcript the point is made that the Times is able to get information that the public cannot, although the Times attorney states that that should not be possible, and that it made a court application to unseal a document so the public can see for itself what the the Times is able to see by privileged access.
It appears that only the New York Times has seen the missing redacted documents, having obtained copies before they were made available to the public. When the documents are made public it will be worth checking to see that they are the same made available to the Times.
Cryptome has spoken to Times reporter Benjamin Weiser in the past and Mr. Weiser has been forthcoming about his coverage of the Bin Laden trial.
New York Times, May 1, 2004
BY BENJAMIN WEISER
It was an extraordinary coup: in the late 1990's, federal prosecutors sat down to interview their first major informer against Al Qaeda — Jamal Ahmed al-Fadl, a former payroll manager for Osama bin Laden who would become the government's chief witness in its first trial of Qaeda operatives.
But it was followed by an extraordinary blunder: for two years, even as the authorities cloaked Mr. Fadl in the secrecy of the federal witness-protection program, keeping him in undisclosed locations and communicating with him in videoconferences through a special telephone hookup, many hours of those conversations were recorded on videotape.
The taping, which the government says was done by someone in the federal marshals service and discovered in 2002 by prosecutors and the F.B.I., violated the established practice and the very mission of witness protection. Such recordings are not made because they could reveal deadly clues about the identity and location of the informer — particularly one as high risk as Mr. Fadl, who is unharmed but still hidden and may be called again to testify in terrorism trials.
Now the videotapes, 28 hours of them, are complicating the government's case against the four men Mr. Fadl helped convict of conspiring in the 1998 bombings of two United States Embassies in East Africa and other terrorist acts.
After prosecutors learned of the tapes' existence, months after the trial, they gave the defense 647 pages of transcripts under a strict court order of confidentiality. Defense lawyers are now requesting new trials, contending in papers unsealed this week in Federal District Court in Manhattan that the tapes should have been disclosed earlier and would have helped them discredit Mr. Fadl, an assertion that prosecutors reject.
But whoever wins that legal tussle, the transcripts — excerpted in the defense papers — offer an unusually intimate look at the government's complex and often delicate dealings with its primary witness in the war on terrorism before 9/11.
Although the government usually provides the defense with summaries of its conversations with witnesses, it is loath to share verbatim accounts because the fine details of those dealings can allow defense lawyers, as these transcripts have, to suggest that a witness has tailored testimony to win favorable treatment.
The excerpts confirm how valuable the government has found Mr. Fadl, a native of Sudan in his early 40's who turned himself in to American authorities. They reveal that the government used him to lure a relative who was also active in Al Qaeda, an act that Mr. Fadl dryly notes at one point will cause a "big problem" in the family.
As officials press him for help, he presses back, asking them to fix his car, buy him a house and give him money, for himself and for his parents back in Sudan. The authorities, it becomes clear, have taken responsibility not just for a witness, but for an entire family. Indeed, testimony in the bombings trial showed that the government had spent almost $1 million on Mr. Fadl and his relatives.
And the authorities have the ticklish task of handling the informer in whom they have invested so much time and effort. Throughout the excerpts, they can be glimpsed trying to reassure Mr. Fadl, massage his ego to make him a confident witness, and quell his fears that he will be used and then tossed aside — like a witness to a routine car accident, he says.
As time goes on, though, Mr. Fadl needs less persuading, apparently thrilled by the chance to play a historic role and atone for his own history.
"I love to do this," he says. "I'm, like, addicted now."
A bin Laden Insider
As someone who worked in Mr. bin Laden's office and traveled for him, Mr. Fadl made an especially well-connected witness against Al Qaeda.
One of its first members when he swore allegiance around 1990, he held a position of confidence with Mr. bin Laden that included helping to manage his payroll, testimony has shown. Mr. Fadl had access to the files of each of the group's members, knew their aliases and was privy to details of Mr. bin Laden's global financial network. He developed an intimate knowledge of Mr. bin Laden's businesses, which prosecutors said were fronts for terrorism, and was able to describe how Al Qaeda used false passports, smuggled arms and tried to buy components for nuclear weapons.
In 1996, Mr. Fadl fled the organization after he embezzled about $110,000 from one of Mr. bin Laden's companies, eventually walking into an American embassy in Africa and offering his services in the fight against Al Qaeda. He pleaded guilty to conspiracy charges in a closed 1997 proceeding, and until he testified, prosecutors referred to him in court papers only as CS-1, for confidential source.
In February 2001, wearing a white skullcap, an open-neck shirt and blue jeans, Mr. Fadl identified himself in a Manhattan courtroom and began several days of riveting testimony against four men charged with conspiring in the embassy attacks, in which more than 200 people died, and in the killings of 18 American soldiers in Somalia in 1993.
But despite the secrecy and heavy security surrounding him — the court even forbade courtroom artists to sketch Mr. Fadl's face — for two years starting in January 2000, videotapes were capturing his teleconferences with prosecutors and F.B.I. agents, the government says.
The government has not said who made the videotapes, or why. But the director of the witness protection program, Stephen J. T'Kach, says in an affidavit that an investigation determined that they resulted from "an unauthorized, independent decision by one or two employees of the marshals service." He said the service, which runs the witness protection program, had found that no other meeting with a witness had ever been videotaped.
"In fact, the recordings in this case were so unusual," the government says in its court papers, "that the director of the witness security program himself was not even aware that the meetings had been videotaped" until prosecutors told him.
Witness protection is a tricky enough business when the witness is a mobster or jailhouse informer. But when he is a foreigner with family, friends and enemies scattered around the world, the process can become enormously complicated, as the transcripts show.
It is "a small miracle," an official remarks at one point, that the government was able to get Mr. Fadl's wife and children out of Sudan, which has had tense relations with the United States and has been listed by the State Department as a sponsor of terrorism. (Government officials are generally not identified in the transcripts, but in most cases they appear to be F.B.I. agents or prosecutors.)
But after the government has apparently gone to great lengths to move the family, there are concerns that Mrs. Fadl may seek to return home. An official reassures Mr. Fadl that if his wife ever chose to leave him and return home, "the F.B.I. would probably talk her out of it."
Mr. Fadl complains at another point that his wife is upset because, she says, an F.B.I. agent named Kevin has threatened dire consequences if she decides to go home. Mr. Fadl, in halting English, says the agent told her that if she returned to Sudan: "I take your husband to jail. And I going to take you to immigration jail, and I going to give the kids to American family."
A government official tries to mollify Mr. Fadl, telling him it was "a complete misunderstanding."
"No one would get picked up and thrown in immigration jail. The kids aren't going to be taken away and given to American families. That is not, not going to happen."
Family worries arise again as officials use Mr. Fadl to lure another Qaeda operative in Sudan, Mohamed Suleiman al Nalfi, into American custody. Mr. Fadl and Mr. Nalfi are relatives by marriage, and Mr. Fadl fears that Mr. Nalfi might call family members from prison and blame him, saying: " `Jamal, he send me the tickets. Jamal, he do all that to me.' And that's going to be big problem between his family and my family," Mr. Fadl says.
Mr. Fadl eventually telephoned Mr. Nalfi and, in several conversations, persuaded him to go to Kenya, where he ended up in the hands of American agents, the defense papers say. In the end, though, Mr. Fadl had little reason to worry about his relative's reaction. Mr. Nalfi pleaded guilty, and was sentenced to 10 years in prison. In a letter to the judge, he renounced his actions against the United States and said he had been treated fairly.
"May God keep and bless the American justice system and the courts," Mr. Nalfi wrote.
Patriotism and Money
Although Mr. Fadl, too, praises the Americans and their cause, defense lawyers have painted him as a greedy opportunist. And in the excerpts the defense presents, money is a frequent topic.
At one point, Mr. Fadl asks for money, and he wants it directly from the officials he is working with. "I'm talking about you giving me a gift from you," he says. In another conversation, an interpreter relays to the government Mr. Fadl's view that he should be compensated with more money "than what you could imagine, because of what he's done."
Mr. Fadl also asks, "Is there any possibility for you to help me and my family getting house, even a small house?" He asks that money be sent to Sudan for his mother, and for medical treatment for his father. Ultimately, the American government provided the father $3,000, according to the defense papers submitted by the lawyers Joshua L. Dratel and Sam A. Schmidt.
In its response to that filing, the United States attorney's office in Manhattan says the excerpts cited by the defense are piecemeal, sometimes taken out of context and not legally significant. Yet it also appears that the government does not begrudge Mr. Fadl's appeals for money, because he has taken such risks and his cooperation has been of tremendous value.
"You don't need to thank us," an official says, "because we're all in this together."
Mr. Fadl is also told: "We need the witnesses to know that when they're done testifying that we take care of what their needs are."
At times, Mr. Fadl seems sheepish about his requests. "Any time I ask about money, I feel bad," he says. "I feel like this is something great my life, something correct my history."
"I love to help you, to help the case," he adds.
Still, the government treads carefully when discussing whether he will go to prison — trying to encourage him, but acknowledging that the decision rests with the judge.
"You may go to jail, O.K.? Because of, you know, because of what we do in court, and stuff like that," one official says. "Which we know is not going to happen. But there's always that chance. But it's not going to happen."
Mr. Fadl is still awaiting sentencing, and it remains unclear where he lives or what his future holds. But the government has made its commitment clear.
"We won't forget you when the case is over, O.K.?" an official says. "So, Jamal, if there's any witness in the world we will not forget, it will be you."