26 February 2001 Source: Digital file from the Court Reporters Office, Southern District of New York; (212)

8050300. This is the transcript of Day 10 of the trial. See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
1346 12qkbin1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Before: HON. LEONARD B. SAND, District Judge New York, N.Y. February 26, 2001 9:50 a.m. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA v. USAMA BIN LADEN, et al., Defendants. ------------------------------x S(7) 98 Cr. 1023

22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1347 12qkbin1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SAM A. SCHMIDT JOSHUA DRATEL KRISTIAN K. LARSEN Attorneys for defendant Wadih El Hage DAVID STERN DAVID RUHNKE Attorneys for defendant Khalfan Khamis Mohamed ANTHONY L. RICCO EDWARD D. WILFORD CARL J. HERMAN Attorneys for defendant Mohamed Sadeek Odeh FREDRICK H. COHN DAVID P. BAUGH LAURA GASIOROWSKI Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali APPEARANCES MARY JO WHITE United States Attorney for the Southern District of New York BY: PATRICK FITZGERALD KENNETH KARAS PAUL BUTLER Assistant United States Attorneys

23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1348 12qkbin1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (Trial resumed) THE COURT: Are there any matters that require the

court's attention before bringing the witness and the jury? MR. FITZGERALD: there is agreement. One very brief matter, on which

Mr. Schmidt wanted a picture of the I have

witness al-Fadl to use to cross-examine this witness.

provided him one on the understanding that if it is offered as an exhibit it will be a sealed exhibit so his picture is not in the public domain. THE COURT: Very well. I would also wish to put in this

MR. FITZGERALD:

transcript, which will take two minutes, and then we will be ready for cross-examination. THE COURT: bring in the jury. L'HOUSSAINE KHERCHTOU, resumed. (Jury present) THE COURT: JURORS: Good morning. Very well. Bring in the witness and

Good morning. Mr. Fitzgerald. Thank you, your Honor.

THE COURT:

MR. FITZGERALD:

23 24 25

(Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1349 12qkbin1 Kherchtou - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DIRECT EXAMINATION (Continued) BY MR. FITZGERALD: Q. Mr. Kherchtou, I have placed before you two transcripts,

marked 201A-T and 217B-T. A. Q. Yes, sir. Have you reviewed those transcripts and translations and

compared them with tape recordings that you listened to at the same time? A. Q. Yes. Are those two transcripts fair and accurate

transcriptions, in other words, writings, of what was said in the phone conversations, including translations from Arabic to English? A. Q. Yes. Were the voices as identified on the transcripts, are

those voices accurately identified as to who is speaking? A. Yes. MR. FITZGERALD: nothing further. THE COURT: cross-examination. CROSS-EXAMINATION BY MR. SCHMIDT: Very well. Mr. Schmidt. We will proceed with Thank you, your Honor. I have

24 25

Q.

Good morning, Mr. Kherchtou.

Is that how you pronounce

your name? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1350 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

A. Q. A. Q.

Yes.

Good morning.

What year was it that you first went to Afghanistan? It was in 1991. And you remained in Afghanistan until some point in 1993,

is that correct? A. Q. Yes. Did you travel outside of Afghanistan or Pakistan during

the period from 1991 to 1993 when you left ultimately to go to Nairobi? A. Q. A. Q. A. Yes, I went to Saudi Arabia. Was that for a hajj? Yes. Did you go with other members of the group on the hajj? Well, I went by myself but there was a guy, he wasn't from His name was Dr. Montessur. He was an Egyptian.

al Qaeda. Q. A. Q. A. Q.

Was he a member of an Egyptian group? No, he was a doctor working with al Qaeda guesthouse. He was a doctor, a medical doctor from Egypt? Yes, he is a medical doctor, yes. He was treating members of al Qaeda and other groups in

Afghanistan? A. Q. Yes. Were there many people in Afghanistan who were not members

24 25

of al Qaeda? A. Yes, many. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1351 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

Many of these people working in roles, like as doctors,

nurse, and helpers? A. Q. Yes. You told us that when you arrived in Pakistan, I think it

was, at one of the guesthouses, your papers, your documents, your travel documents, passport, were taken from you; is that correct? A. Q. A. Q. Yes. It was your understanding that was for safekeeping? Yes. Because you were ultimately going to go into Afghanistan

and participate in a war, at the time against the Afghani Communists, right? A. Q. Yes. After you left Afghanistan and Pakistan, were your papers

returned to you? A. Q. A. At what time you are talking about? Excuse me? They were given to me when I moved from Bait al Ansar to And they were given to me again at the end

Bait al Salaam.

when I was traveling. Q. When you were at the front or in the camps, did you get

regular time off to visit your wife? A. Yes, in the camp, yes.

25

Q.

Was that important to you, to be able to spend time with SOUTHERN DISTRICT REPORTERS (212) 805-0300 1352

12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 your wife periodically? A. Q. A. Q. Yes, I think so. Is that a religious duty? It is. In some point in 19 -- withdrawn. When you were in Afghanistan, did you meet people who had come to Afghanistan to assist the Afghanis in the early or mid-1980's? A. I met many people but I don't know exactly when they came

there. Q. Did it become known to you that some of the people -- he's

been here or he's come back from 1983 or he's been here from the very beginning, something of that nature? A. Q. Yes. There were a number of people, I am sure a minority, who

fit that description, is that right? A. Q. Yes. People who did come early on in the Afghan freedom battle

against the Russians were treated with a little bit more respect because they came so early on. A. Q. Yes, you are right. For somebody to do that, that alone would give a degree of

trust to that person if that person came in the early 1980's and stayed the whole time, or came back and forth to help the

25

cause, is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1353 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. Before you went to Nairobi did you make a stop in the

Sudan? A. Q. No. Did your wife travel from Pakistan to the Sudan before you

went to Nairobi or after you went to Nairobi? A. What happened is, I went after my wife in pilgrimage in Then from Saudi Arabia I went back to Pakistan. Then when I went

Saudi Arabia.

She traveled from Saudi Arabia to Sudan.

back to Kenya, I had 20 days to wait for the immigration permit to be issued. already there. Q. A. Q. A. Q. A. Q. So first you actually physically went to Kenya? Yes. And filed papers in Kenya? Yes. How many days were you there before you went to the Sudan? I don't remember. Probably a week. Then I went to Sudan and found my wife

Do you recall the first time that you went to Nairobi, is

it fair to say that that was approximately October of 1993? A. Q. Yes. It was your understanding that you were going to Kenya to

learn to be a pilot, is that right? A. Q. Yes. You had no objections to that because that's a good skill

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1354 12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to learn, isn't it? A. Q. Yes. Your understanding was that Mr. Bin Laden wanted you to be

available to not only fly an airplane if he wanted to travel but also for crop dusting for the farming companies, is that right? A. Q. I didn't get your question, please. It was your understanding that once you became a pilot you

would be doing flying, perhaps Mr. Bin Laden around? A. Q. A. Q. Yes. And doing crop dusting for the farming companies. Excuse me. Your microphone --

You would be doing crop dusting for the farms owned by

Mr. Bin Laden and his companies, is that right? A. The crop dusting came very later after that, when we want

back to Sudan, they wanted to have somebody who has already the license and he can fly crop dusting. Q. So when you first came to Nairobi, it was just to fly

Mr. Bin Laden's personal plane, but then later on it was expanded to include crop dusting of the farms. A. Q. Yes. As you told us, there was a religious obligation for you

to regularly visit with your wife, is that correct? A. Q. Yes. And also, by the time that your wife was in the Sudan did

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1355 12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you have any children? A. Q. Yes, I had one, yes. It was also a religious obligation to spend time with your

children as well. A. Q. A. Q. Yes. And you took that quite seriously, didn't you? Yes. So after spending approximately two months in Nairobi

studying, you went back and spent a month in the Sudan with your family. A. Would that be accurate? It wasn't like that. Normally,

No, it is not accurate.

if you talk about religious, if you stay somewhere far from your wife, you should stay at least four months, then you go back to visit her. But in Nairobi when I was there, it wasn't Probably

exactly two months and then another month in Sudan.

if I stayed three months I can get two weeks or three weeks I go to Sudan, and so on. Q. A. Q. This was quite a while ago, right? Excuse me. This occurred quite a while ago, your travel back and

forth to Sudan? A. Q. Yes. So you are doing your best to remember back that far, is

that right? A. Yes.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1356 12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. (Pause) MR. SCHMIDT: I apologize.

Do you recall telling the agents when you were interviewed

the first time that it was your best memory that every two or three months you would spend in Nairobi you would then spend a month in the Sudan with your family? that? A. No, sir I don't remember, but as I said, it's not exactly Do you remember telling

two months and another month in Sudan. Q. I understand. It could be two or three months, a lot

depends on your schedule and classes. A. Q. Yes, you are right. But the amount of time that you tried to spend in the

Sudan when you went back there would hopefully be a month. A. Q. Yes, sometimes. Sometimes it might only be two or three weeks but

sometimes it might be four weeks. A. Q. Yes. Obviously you tried to spend as much time with your family

having been away from them for that long. A. Q. Yes. Do you remember the letter that you left for Ahmed Sheikh

when you visited in 1998? A. Q. Yes. Do you remember that the top of the letter, the greetings SOUTHERN DISTRICT REPORTERS (212) 805-0300

1357 12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 part of the letter read something like in the name of God the merciful and the compassionate, may peace and God's blessings be upon you, dear Ahmed Sheikh, Allah -- do you remember that greetings portion? A. Q. Yes. Is that something that is traditional to do from one

Muslim to another Muslim writing a letter? A. It depends on the culture of the Muslim, how it is. If

you are very good can write good things, if not, you can say in the name of God the merciful -Q. In other words, if you are a good letter writer, you would

put like a blessing or something in the letter? A. Q. Yes. That is not an al Qaeda thing, that is simply being a good

Muslim in writing to another Muslim? A. Yes. Many people they can write more than that thing if

they are not from al Qaeda. Q. When you were traveling back and forth from Nairobi to the

Sudan, when you were in the Sudan were you working then? A. Q. No. You had the opportunity to spend time with your family and

time with others that you knew without having to worry about working in a position. A. Q. Yes. So during that time you had a lot of free time to find out SOUTHERN DISTRICT REPORTERS (212) 805-0300 1358

12qkbin1 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what was going on with the people in the Sudan. A. Q. Yes. You spent that time not just being close to your family,

your wife and -- you had one child then or did you have a second? A. Q. A. Q. Excuse me. How many children did you have in, say, 1993 and 1994? In '94 I had only one. You spent time with your family but you also spent time

catching up with all the information of things that went on in the Sudan with people that you knew, is that right? A. Q. Yes. When you were in Nairobi, you knew Hamad, also known as

Khalid al Fawwaz, is that correct? A. Q. A. Q. A. Q. A. Q. A. Yes, I knew Hamad. Did he live with you in the apartment? No. Who lived with you in the apartment? Abdel Hameed. That's a different person than Hamad, right? Yes. What did Mr. Hameed do? He is supposed to be assistant of Hamad in the

registration of the company. Q. That was Asma Ltd.? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1359 12qkbin1

Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes. Do you know if Hameed was associated with al Qaeda? Yes. Do you know if he was associated and had taken bayat or

was just associated? A. I know he is from al Qaeda but I didn't know when did he

give bayat to al Qaeda. Q. A. Q. Did you discuss the bayat with Mr. Hameed? No, I have never discussed the bayat with anybody else. Did you see Hamad on a fairly regular basis when you were

in Nairobi? A. Q. Yes. Did he also keep you up with information on what was

occurring in the Sudan and with Usama Bin Laden? A. Q. Not necessarily. Did you discuss what was going on when you would come back

from the Sudan? A. Q. Probably, yes. Did Hamad travel from Nairobi to the Sudan at times as

well? A. Q. A. Q. I don't remember. I don't think so.

Did he travel outside of Kenya, if you remember? I don't remember. When you came back to Sudan in 1995 -- withdrawn. You went and stayed in Sudan at some period of time SOUTHERN DISTRICT REPORTERS (212) 805-0300 1360

12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

in 1995, is that correct? A. Q. Yes. At that time you started working in Sudan, in Khartoum, is

that right? A. Q. Yes. And I think that at one point that you said that you

started working at the tannery, that you stopped working there, is that right? A. Q. A. Q. Yes. I started working in Wadi Al Aqiq company.

Who was running that company at that time? Excuse me. Who was running Wadi Al Aqiq at the time you started

working there? A. Q. A. Who was running? Yes. There was sometimes Abu Fadhl al Makkee, sometimes Sheik

Jihad el Masri and later Abu Salaama. Q. You were sent over to the tannery from Wadi Al Aqiq to

work there, is that correct? A. Q. A. Q. Yes. And you were required to take a test, is that right? Yes, but it wasn't a test. I haven't sit for any test.

Wasn't there some type of test that you were required to

take? A. Yes. They told me after that that they were looking at SOUTHERN DISTRICT REPORTERS (212) 805-0300 1361 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that or something.

There was something going on, but there

was nothing written, nothing some questions, nothing. Q. What were you doing at the tannery when you were working

there? A. We went only for some days to the commercial section with And we

two guys, Abu Ahmed Sarudi and another guy from Oman. stayed there sometimes. there is no work. Q. A. Q. A. Q. A.

Then after a while they told us that

After that, did you obtain employment with Abu Ibrahim? No. Where did you go from the tannery? I stayed in my home. I stayed home. I didn't work.

Where was your next job? It was after a while, after Bin Laden left and al Qaeda

left, then I got another job with Kaswah company. Q. A. Q. A. Q. A. Q. A. Q. A. K-A-S-W-A-H? Kaswah. Who ran Kaswah? Abdouh Abdallah al Yemeni. He was a businessman? Yes. He was basically in an import/export company? Yes. So they dealt with lots of different commodities? Different what? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1362 12qkbin1 Kherchtou - cross

Q.

Commodities, goods?

Different kinds of goods?

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. Whatever would be profitable to either bring into the

Sudan to sell for a profit or to export from Sudan to another country for profit, is that right? A. Q. Yes, right. When you were with working for Abu Abdallah, you were just

doing business, is that right? A. Q. Yes. Based on what you could see, all that Mr. Abu Abdallah al

Yemeni was doing was business, is that right? A. Q. Yes. There were times that you saw correspondence either to or

from Wadih El Hage, from or to Abu Abdallah al Yemeni, is that right? A. Q. Yes. In fact, some of it was even addressed to you concerning

different goods and commodities, is that right? A. Q. A. Q. A. Q. A. Yes. Some of the goods and commodities were hides? Hides? Animal hides? Leather? Yes, leather? Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1363 12qkbin1 Kherchtou - cross

Q.

Sugar?

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q. A. Q.

Yes. Seeds? Yes. Do you remember any other ones as well? Tanzanite and (through interpreter) precious stones. And there were times where there were attempts for Mr. Abu

Abdallah to be a middleman for some large deals that unfortunately didn't happen, is that correct? A. Q. Yes. By the way, when you were in the Sudan both visiting and

immediately after your return, were there any Sudanese intelligence officers that regularly worked between Bin Laden and the government of the Sudan, like a liaison? A. Q. A. Yes. Do you know the names of those individuals? I know the names of the guy who was taking me myself to

the airport sometimes. Q. A. Q. A. Q. Who is that? Abdul Hallek. These were Sudanese intelligence, is that correct? Yes. When you were traveling, it was a Sudanese intelligence

officer that would see you from basically Khartoum to the airport to make sure that you are actually leaving the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1364 12qkbin1 Kherchtou - cross

1 2

country, is that correct? A. Yes.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Because the Sudanese intelligence kept very close watch

over Bin Laden and Bin Laden's employees and members, is that right? A. It's not every day. Sometimes you can travel by yourself

if you don't have anything, carrying money or something, you can travel by yourself to the airport and you do the whole check-out and you go. Q. But if there is anything that you are carrying other than

your own personal belongings, the Sudanese intelligence would be involved. A. Q. Yes. They were monitoring Mr. Bin Laden and the people in

Khartoum. MR. FITZGERALD: he knows they were doing. MR. SCHMIDT: THE COURT: I am sorry? The question is his competence to testify Objection to competence as to what

as to what the Sudanese were doing. MR. SCHMIDT: THE COURT: Q. I will rephrase the question. Yes.

It was your understanding that the Sudanese were keeping

close track of the activities and Mr. Bin Laden and the people who worked for Mr. Bin Laden, is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1365 12qkbin1 Kherchtou - cross

1 2

A.

Sudanese, their role is to take you from your guesthouse

in the morning to the airport and just to make sure you cross

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the immigration in the airport. carrying. Q.

They don't know what you are

There were a number of people of Egyptian background that

were in the Sudan, is that right? A. Q. A. Q. Yes. And you knew quite a few to have them. Yes. You knew that many of the Egyptians who were in the Sudan

were very much afraid of the Egyptian government. A. Q. Yes. Even people who were not members of al Qaeda were afraid

of the Egyptian government. A. Q. Yes. For example, Abu Tareq, the person who crashed the

airplane? A. Q. A. Q. Yes. He was Egyptian, is that right? Yes. And you believed that he was not a member of al Qaeda, is

that correct? A. Q. Yes. He actually flew from the Sudan to Nairobi before he went

back to Egypt because he was afraid of letting the Egyptians SOUTHERN DISTRICT REPORTERS (212) 805-0300 1366 12qkbin1 Kherchtou - cross

1 2 3

know that he was with Bin Laden. A. I don't know when did he flew -- I didn't know if he was

afraid or not.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Were you aware that religious Egyptians, both al Qaeda

members and non-al Qaeda members, were afraid of imprisonment and torture from the Egyptian government? MR. FITZGERALD: THE COURT: Q. Objection, 401 and competence.

Sustained.

Did you have conversations with members of Al Qaeda

concerning their fear of the Egyptian government? MR. FITZGERALD: MR. SCHMIDT: A. Q. Yes. Were there times when nonmembers of Al Qaeda were present Members of Al Qaeda?

Yes.

during discussions about their fears of the Egyptian government? A. I don't remember if somebody from non-Al Qaeda was staying I don't remember.

with us. Q.

Did members of Al Qaeda express the fact that any

apparently religious person traveling to Egypt risked imprisonment and torture? A. Yes. It was obvious that all people, most of the

Egyptians who were in Afghanistan, if they go back to Egypt they will be facing tortures. Q. It made no difference whether they were Al Qaeda or people SOUTHERN DISTRICT REPORTERS (212) 805-0300 1367 12qkbin1 Kherchtou - cross

1 2 3

who were just in Afghanistan for a short period of time, isn't that correct? MR. FITZGERALD: Objection, competence and 401.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

THE COURT:

Yes.

You knew also many Egyptians who were members, you met

many Egyptians who were members of jihad organizations from Egypt, is that right? A. Q. Yes. Was there more than one jihad organization of Egypt that

were in the Sudan when you were there? A. Q. A. Yes. What were those organizations' names? There is Gamaa Al Jihad. It means Al Jihad group. And

Gamaa Islamiya. Q. One is often called Egyptian -- EIJ. Egyptian Islamic

Jihad. A. I said Gamaa Jihad and al Gamaa al Islamiya, it means

Egyptian Jihad of Sheik Omar Abdel Rahman. Q. When we refer to the Egyptian Islamic Jihad, who is the Who was the

leader of the group, of that particular group? leader back then? A. Q. A. Q. The leader was Sheik Omar Abdel Rahman.

When we talk about, what was the other one, Gamaa? I am talking about Gamaa Islamiya. Is there another group simply called shortly like the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1368

12qkbin1 Kherchtou - cross 1 2 3 4 Islamic Group? A. Q. A. I don't know. Have you heard of a person named Zawahiri? Yes.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A. Q. A. Q. A. Q. A. Q.

Was he a leader of a particular group? Yes. What particular group was he a leader of? Al Jihad group. Is that the same group that Abdel Rahman was a leader of? No. Two different groups? Yes. Just so we can understand it and use English initials, if

I say IG, which group would that be referring to, with who as the leader? A. Q. A. Q. A. Q. A. Q. A. Q. Islamic jihad? Yes, Islamic Group. They are all Islamic groups. So if I say Gamaat, which group are we talking about? Gamaa? Yes. It is Sheik Omar Abdel Rahman group. That's Gamaa? Gamaa. I think that has been referred to at times as IG. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1369 12qkbin1 Kherchtou - cross So the

1 2 3 4

Sheik Rahman group we refer to as IG? A. Q. Yes. The Zawahiri group we will refer to as Egyptian Islamic Is that sometimes referred to as that?

Jihad.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q. A. Q.

The translation I don't know. It would be Islamic Jihad, is that correct, from Egypt? We call it Gamaa Jihad, it means Al Jihad Group of Egypt. Al Jihad Group of Egypt. OK. These two groups obviously were not, the leadership was

not able to stay in Egypt, is that right? A. Q. Excuse me. That leadership was wanted in Egypt. They would be

arrested and imprisoned and tortured and maybe executed, right? A. Yes. MR. FITZGERALD: 401. THE COURT: Q. Sustained. The answer is stricken. Objection, again to competence and

Did you know any members of either the Islamic Jihad of

Egypt or the, what we call the IG, Sheik Rahman's group, in Khartoum? A. Q. Yes. Could you tell us the names of some of the people that you

knew who belonged to that group, either one of those groups. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1370 12qkbin1 Kherchtou - cross

1 2 3 4 5

A.

For example, Sheik Faraj el Masry, he is one of the Al

Jihad Group of Himan Zawahiri. Q. A. Q. Was he one of the early people in Afghanistan 1234? Yes, he went to Afghanistan long time before me. Was there a lot of people from the Egyptian groups that

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

went to Afghanistan early on? A. Q. A. Q. Yes. Who else did you know from Islamic Jihad? I don't remember their names. There were some people that you dealt with that it was

your belief they were not Al Qaeda members, is that correct? A. Q. From which country? When you were in Sudan, there were a number of people that

you dealt with -- withdrawn. When you were in the Sudan and sometimes in Nairobi, there were people that you dealt with that it was your belief that they were not Al Qaeda members, is that correct? A. Q. Yes. Sometimes these people worked for companies owned by Bin

Laden, is that correct? A. Q. Yes. Sometimes these people might have assisted people who were

Al Qaeda members, is that correct? A. Q. Yes. Some of them might have been borrowed from groups like the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1371 12qkbin1 Kherchtou - cross

1 2 3 4 5

Egyptian jihad of Egypt. MR. FITZGERALD: borrow. THE COURT: Q. Yes. Objection to the form, the word

Sometimes people who were not Al Qaeda but were members of

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Egyptian Jihad of Egypt do some training of members of Al Qaeda. A. Q. A. Q. In Sudan? In Sudan and even in Afghanistan and Pakistan. In Sudan I have never seen some trainings. In Afghanistan or Pakistan where sometimes the trainer was

a person who was Egyptian jihad, not Al Qaeda, but was used as a trainer. A. Q. Sometimes, yes. There were also some people that you knew who you had no

idea whether they were or were not Al Qaeda, is that right? A. Q. Yes. For example, Abu Hajer, he was one of the what we call old

timers from Afghanistan, who went to Afghanistan early on, is that right? A. Q. Yes. You saw him being involved in Mr. Bin Laden's businesses

in the Sudan, is that correct? A. Q. Yes. You never saw him do any training or anything like that, SOUTHERN DISTRICT REPORTERS (212) 805-0300 1372 12qkbin1 Kherchtou - cross

1 2 3 4 5 6

did you? A. Q. No. He was a person who had great respect of Mr. Bin Laden and

others who were in Al Qaeda, is that correct? A. Q. Yes. But you could not say that he actually was a bayat member

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of Al Qaeda, could you? A. Q. A. Q. No. There were people like Ahmed Sheikh in Nairobi. Yes. He was somebody who was friends with a number of people

that were Al Qaeda, is that right? A. Q. Yes. He was somebody that helped in some ways, assisted some of

those people in Nairobi, is that right? A. Q. Yes. You described on direct examination because he lived in

Nairobi for a long time, he was able to assist with the legal problems of members of Al Qaeda, is that right? A. Q. Yes. You are fairly confident that he is not a member of Al

Qaeda, is that correct? A. Q. Yes. Abu Ibrahim is a person that you knew in the Sudan, is

that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1373 12qkbin1 Kherchtou - cross

1 2 3 4 5 6

A. Q. A. Q. A. Q.

Which Abu Ibrahim? Abu Ibrahim al Iraqi? Yes. Did you know him in Afghanistan? I had heard of him, yes. But you didn't meet him until you went to Sudan, is that

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

right? A. Q. Yes. He was running al Hijra company for a while, is that

correct? A. Q. A. Q. A. Q. Yes. That is the construction company? Yes. The road building company? Yes. In the road building company, most of the engineers that

worked in that company were Iraqis, weren't they? A. Q. A. Q. Yes. They were not Al Qaeda, they were just al Iraqis? Yes. There were a lot of Sudanese that worked in al Hijra as

well, doing a lot of the menial jobs, is that correct? A. Q. Yes. In fact, it is your understanding that the Sudanese

government and the Sudanese people were very happy about the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1374 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7

jobs that Mr. Bin Laden brought in to the Sudan with all of his companies, is that right? A. Q. Yes. Do you know if Abu Ibrahim al Iraqi worked in any other

company? A. Q. No. You have talked about a person named Ubaidah Al Banshiri.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. He also was an old timer, wasn't he? He was in

Afghanistan early on. A. Q. Yes. His relationship with Bin Laden was more of a friend than

it was as an emir and an underling, is that right? A. Q. A. Q. Excuse me. I didn't get --

His relationship was like a friend, is that right? They were more than friends, yes. It wasn't, from what you could see, Mr. Bin Laden wasn't

giving orders, directions to Mr. al Banshiri. A. Q. A. Q. I don't know how it goes between them. Do you know a person named Abu Khadija al Iraqi? Yes. All the contacts that you had with Abu Khadija al Iraqi

were business or commercially related, is that correct? A. Q. Yes. Abu Khadija did a lot of traveling in Europe. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1375 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7

A.

Yes.

I know he is from Germany.

That's why he is

traveling. Q. Were you aware that he had a European passport, from

Germany? A. Q. Yes. So he was able to travel freely through Europe, is that

right?

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. You are not aware that he is a member of Al Qaeda, is that

correct? A. I don't know, but he was all the time, sometimes in the

meetings, sometimes in the guesthouse in Khartoum. Q. A. Q. He was traveling a lot. Yes. The head of one of the agricultural companies, them Did he have a house in the Sudan?

March -- do you know the company I am talking about? A. Q. A. Q. Themar al Mubaraka. Was that Dr. Mubarak? Yes. Mr. Mubarak, did he run more than one company or did he

run just one company? A. Q. I didn't get your question. How many companies did he run? Did he run more than more

than one company or just one? A. I think he was running el Mubaraka company, which is a SOUTHERN DISTRICT REPORTERS (212) 805-0300 1376 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8

branch of Wadi Al Aqiq company. Q. Dr. Mubarak is, to your knowledge, not a member of Al

Qaeda, is that correct? A. Q. A. Q. A. Yes. Do you know a person Hamza al Liby? Yes. He is a Libyan, is that correct? Yes.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

To your knowledge, you do not believe that he is Al Qaeda,

is that correct? A. Q. He is from Al Qaeda. He is Al Qaeda? What was his role? What did he do in the

Sudan? A. Q. A. Q. A. He is working in al Hijra company. Do you know a person named Abu Baden el Masry? Mohamed, yes. Do you know if he was Al Qaeda? Yes. THE COURT: THE WITNESS: group. Q. A. Did you talk with him being in Al Qaeda? No, it was obvious. You can't say to a member who is Do you know, or he wasn't? No, I know that he was in Al Qaeda

working with you in the same company are you from this company or not. I mean, the question, you can talk about all issues SOUTHERN DISTRICT REPORTERS (212) 805-0300 1377 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8

about Al Qaeda among us, discussing whatever. Q. What about, there were a number of black Americans who

were in Khartoum in those years, is that correct? A. Q. A. Q. A. Americans? Some black Americans? Yes. One of them was Abu Malek? No, he wasn't in Khartoum.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A. Q. A.

He was not in Khartoum? I don't know him. Was he in Afghanistan or Pakistan? I knew a guy called Abdouh Malek, an American, but he was

in Pakistan and since then -- he didn't visit Sudan. Q. A. Q. A. Q. Was he Al Qaeda? I believe so. But you are not sure? No. In fact, you told the agents when they asked you about Abu

Malek that you did not know whether he was an Al Qaeda member. A. Q. A. Q. A. Q. Abu Malek or Abdou Malek? I guess there might be two people. Abu Malek, I don't know him. There is an Abdou Malek? Abdou Malek yes. Did you tell the government when you first were talking SOUTHERN DISTRICT REPORTERS (212) 805-0300 1378 12qkbin1 Kherchtou - cross There is an Abu Malek?

1 2 3 4 5 6 7 8 9

about different people who were members of the Al Qaeda, who you did not think were members of Al Qaeda, who you did not know were members of Al Qaeda, you said to the government that you did not whether Abdou Malek was a member of Al Qaeda, is that correct? A. Q. A. Q. I don't remember that. If I said, that is correct.

So you don't know if he was, is that correct? Yes. There are a lot of -- when you were in Afghanistan there

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

were a number of Algerians who were in Afghanistan and Pakistan, is that correct? A. Q. Yes. They basically stayed in their own guesthouse, is that

right? A. Q. A. Q. Yes. And they basically stayed together, is that correct? What do you mean by together? They hung around in their group mostly. Not that they

didn't mix with other people but they mostly hung around with their group of Algerians. A. Q. Yes. Based on your knowledge, that of those Algerians, those

Algerians did not train with Usama Bin Laden or Al Qaeda, is that correct? A. There is a group -- al Farouq camp, for example, everybody SOUTHERN DISTRICT REPORTERS (212) 805-0300 1379 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9

can come from different nationalities. trained in al Farouq camp.

They can come and be

But for Algerians, at certain They

times there came a group of Algerians, purely Algerians. came, they were trained in Khalid Ibn Walid camp. Q. A. Q. A. Q. They were trained separately? Excuse me. They were separate from other groups? Yes, they were separate, yes. Do you know a person named Abu Salaama?

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. You don't know if Abu Salaama is a member of Al Qaeda, is

that correct? A. Q. A. Q. A. Q. Yes. Abu Salaama worked at Wadi Al Aqiq, is that correct? Yes. He also worked at the Khartoum tannery, is that correct? Yes. Did you know a person named Abu Hazim? THE COURT: Mr. Schmidt, how much longer are you I am just wondering whether it

going to go along this path?

couldn't be expedited by simply giving the witness a list of names and asking him in one fell swoop to identify which he knows to be Al Qaeda members and which he does not know. MR. SCHMIDT: I am trying to get other information

about these individuals as well, your Honor. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1380 12qkbin1 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10

THE COURT:

If you would pick up the pace I am sure

it would be appreciated. Q. A. Q. Do you know a person named Abu Hazim? Hazim? No.

Do you know a person named Abu Hazim who was a member of

the Libyan Fighting Group? A. Q. A. Hazim? H-A-Z-I-M. No. MR. FITZGERALD: May I have a moment, your Honor?

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q.

THE COURT: MR. SCHMIDT: Abu Hazem. Hazem? Yes. No. Hazem?

Yes. Thank you.

Hazem is a Palestinian name, so Libyans do not use it. I am trying to say Abu H-A-Z, I guess E-M, a person that

you told the government that you knew was a Libyan member of the Libyan Fighting Group and was not an Al Qaeda member. Does that refresh your recollection? A. No. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1381 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 Q. Now, there is a company called the Kasalla facility, is

that correct? A. Q. Kasalla is a city in the Sudan, yes. There is agricultural facility there that is owned by

Mr. Bin Laden; is that correct? A. Q. Yes. And they did experiments concerning hybrids for

agricultural products like corn; is that right? A. Q. Yes. That's run by a Abu Muath; is that correct?

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q. A. Q.

Yes. He's a Palestinian, is that right? Yes. He's not a member of al Qaeda, isn't that correct? Yes. Now, do you know an Abu Daud, D-A-U-D, a person who fought

in Afghanistan? A. Q. Yes. Now, he was often seen in Khartoum doing business with

people, isn't that right? A. Q. A. Q. A. Well, he was visiting Sudan only. He's not a member of al Qaeda; is that correct? Yes. There is a, there are two people named Mak Daud? Mak Daud, yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1382 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11

Q.

The Egyptian one, is that correct, he's a member, he's not

a member of al Qaeda, is he? A. Q. A. Q. A. Q. Yes. He is or is not? No, he's not. He's a member of the Egyptian jihad, is that correct? I'm not quite sure. Do you recall telling the government back when they were

asking you all these names and that you indicated that Maqdad was likely a member of the Egyptian jihad? A. Yeah, because he all the time with Egyptians so.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Now, Abu Ismal he worked at the GASH project in Sudan for

Mr. Bin Laden, is that correct? A. Q. A. Q. A. Q. Yes. Was he an al Qaeda member? No. Abu Sara worked at Wadih ak Kish; is that correct? Yes. He was a member of the Libyan group and not al Qaeda; is

that correct? A. Q. A. Q. A. Yes. Abdel Kadim? Yes. He's someone that you did business with, is that right? Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1383 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11

Q. A. Q. A. Q. A. Q. A. Q. A.

He's also not al Qaeda; is that correct? Yes. But he knows just about everybody there, doesn't he? Not everybody, but. Lots of people? Yes. Do you know a person name Ahmed Hasan? Yes. He's not al Qaeda, is he? There are two Ahmed Hasans, both Egyptian, one from al

Qaeda, one not.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

And the one that's not from al Qaeda is from the Islamic

jihad Egyptian, right? A. Q. A. Q. From jihad. You knew a few Sudanese members of al Qaeda, didn't you? Yes. And one in particular you knew that Abu Bidala Sudani, is

that correct? A. Q. A. Q. I heard about him, yes. Do you recall ever meeting him? No, I don't think so. All the times that you went to the guest houses, the

meetings, the get together when you were in Khartoum is it your belief that you never saw him, is that correct? A. Yes, for the reason because they were talking about that SOUTHERN DISTRICT REPORTERS (212) 805-0300 1384 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12

he was working with the company he stole money and he left, he run away, that's why he not in the guest house. Q. But prior to him running away, the times that you would

come back for your two, three, four weeks in the Sudan? A. Q. Yes. You never ran into him in a guest house or at any of the Is that correct?

meetings. A. Q. A. Q. A.

I was going to guest house and the meetings. But you never met Abu Adan? No, I don't think so. Now, do you know him by any other name? No.

13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Now, I'm going to show you a photograph which is marked May I approach the witness, your Honor? Yes.

WEH exhibit C.

THE COURT: Q. A. Q. A. Q.

Do you recognize that photograph? No. Do you ever think you've seen that man before? No. Thank you. Now, was there a discussion about what should

be done to Al Ubaidah for stealing? A. Q. Excuse me? Was there discussions among al Qaeda about what to be done

to Mr. Al Ubaida Sudani for stealing money? (witness consults with interpreter) SOUTHERN DISTRICT REPORTERS (212) 805-0300 1385 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12

A. Q.

No, there was, there is nothing about this. Was there any discussion whatsoever about killing Mr. Abu

Al Ubaida Sudani? A. Q. A. No, you don't kill somebody that stole money. Why is that? It's against Islam, so Abu Al Ubaida would know he had no

fear from his life. MR. FITZGERALD: THE COURT: Q. Objection.

Sustained.

Or from Mr. Bin Laden? THE COURT: Sustained.

Q.

What was your, what was the relationship between the al

13 14 15 16 17 18 19 20 21 22 23 24 25

Qaeda and Iranians? A. Q. A. Iranians? They don't like Iranians.

Why is that? Because we are Sunni and they are Shiites, and you know I

mean we had many points that's why we don't like them. Q. Are there fundamental religious differences between Sunnis

and the Shiites? A. Q. Are there fundamentalist what? Are there basic differences between the practice of Islam

by Sunni and the practice of Islam by Shiites? A. Q. Well, you have some differences. And as a result of those differences is there not a big

dispute a split between the Sunni branch Islam and the Shiite SOUTHERN DISTRICT REPORTERS (212) 805-0300 1386 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13

branch of Islam, is that correct? A. Q. Yes. They both view each other also as heretics? (Witness consults with interpreter) A. Q. Yes. Now, I think you told us earlier that you never saw or

heard of any military training in the Sudan while you were there; is that correct? A. Q. Yes. That was whether you were visiting every few months from

Nairobi or whether you were in the Sudan having left Nairobi, is that correct? A. Yes, when I was there I have never heard something like

14 15 16 17 18 19 20 21 22 23 24 25

that. Q. A. Q. A. Q. Were you aware of any military training at the soba farm? No. Now, have you been to the soba farm? Yes. Was that a farm that was open space owned or used by

Mr. Bin Laden? A. Q. Yes. And were there, did Mr. Bin Laden go there on the weekends

to ride horses? A. Q. Yes. Now, the weekends in the Sudan were what day were they? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1387 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13

A. Q. A. Q. A. Q.

What day? Yes? Friday. Thursday and Friday? Normally Friday. Thursday is a working day.

Now, there were also people getting together for a soccer

games at the soba? A. Q. A. Q. A. Q. Yes. Swimming? Yes. Picnicking? Sometimes, yes. Now, al Qaeda and the Egyptian groups have very different

14 15 16 17 18 19 20 21 22 23 24 25

philosophies; is that correct? A. Q. I don't know. When you first came to Afghanistan you were fighting the

war against at that time it was the Afghani communists being supported by the Russians, is that correct? A. Q. Yes. You went to the front and you fought for them, is that

right? A. Q. Yes. And when you joined al Qaeda it was your understanding

that these are the kind of battles that you would participate in if you were a member of al Qaeda? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1388 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14

A. Q.

Yes. And, in fact, you brought many friends and associates in

battle in Chechnia? A. Q. A. Q. Yes. And southern Bosnia? Yes. Do you know if any of your fellow al Qaeda members went to

Turjakistan to fight against the old Communist ruler in Turjakistan? A. Q. Turjakistan they went I think in '95. And that was what you envisioned the type of fights that

you would participate in as a member of al Qaeda; is that correct? A. I didn't get you.

15 16 17 18 19 20 21 22 23 24 25

Q.

The battles in Afghanistan, the battle against Russians in

Chechnia, the battles in Bosnia against the Serbs, the battles against the Armies of the old Soviet ruler in Turjakistan, those are the kinds of battles that you thought that you would participate in as a member of al Qaeda, isn't that correct? A. Q. Yes. Now, the Egyptian jihad group mostly kept to themselves in

Sudan; is that right? A. Q. A. Yes. They had their own guest house? I think so. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1389 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14

Q. A. Q.

They had their own farm? I don't know. Now, there was people that you understood who were

recently Egyptian Islam jihad like Mr. Banshiri and Abu Hafs who were with Bin Laden since the beginning, is that right? A. Q. You mean Jalal -Abu Hafs and Banshiri were with Mr. Bin Laden from way

back in Afghanistan in the late '70s, '79, '80, '81 something like that, is that right? A. Q. A. Q. A. They were there before I we came to Pakistan. Were they back then members of the Egyptian jihad? I don't think so. Were they al Qaeda people? Excuse me?

15 16 17 18 19 20 21 22 23 24 25

Q.

Whether they were actually bayat or not, they were with

the al Qaeda people? A. Q. A. Q. A. Q. A. Q. A. Well, they are leaders in the al Qaeda. Do you know a person named Kalal? Yes. That person you understood was arrested in Croatia? Which Kalal? The one who was arrested in Croatia? I know him. And what organization was he part of? He's from Sheik Rahman. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1390 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Q.

He was arrested in Kuwait and the Americans gave him -MR. FITZGERALD: THE COURT: Objection, to 401, Judge.

Sustained. Now, it was your

Q.

I'll rephrase that question.

understanding that -MR. FITZGERALD: Q. Objection to 401.

-- that the Egyptian -THE COURT: Sustained.

Q. A. Q.

Was he with the Sheik Rahman group? Yes. Now, it's your understanding that that group of people

were very angry at the Americans for giving Kalal to the Egyptian government, isn't that correct? MR. FITZGERALD: THE COURT: Objection, your Honor, 401.

We'll take our mid-morning recess at this

16 17 18 19 20 21 22 23 24 25

point. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1391 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Jury not present) MR. FITZGERALD: I have three objections, your Honor.

During my direct examination Mr. Schmidt has tried to hold us to a very narrow exception to the hearsay rule and coconspirator statements, but on cross-examination he thinks he can ask everyone, what do you think. Number two, to what the organization believes is as to what happens to a particular person who is directed by where he was who may have taken him to a country or not whether that's true or not it is unfairly prejudicial. Number three, we have sent out much evidence of what the Egyptian groups have done at the defense requests, they are killing people, bombing people and strafing tourist buses in Egypt, and yet all we get is questions about what will happen to people in al Qaeda if they go foe back to Egypt.

16 17 18 19 20 21 22 23 24 25

They want to keep out the violence but they want to present before the jury that the Egyptians, one of the people playing soccer blew up the Egyptian in Islamabad. The defense

wants us to keep out anything that's bad that these people did so the defendants aren't prejudiced, but get in everything that anyone perceives the foreign government might have done wrong in trying to link it to the American government. I think it's improper. witness' credibility. I don't see it goes to the

I don't see it goes to the issues in

this case whether or not Wadih el Hage joined the conspiracy SOUTHERN DISTRICT REPORTERS (212) 805-0300 1392 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

to kill Americans, what it is that a different group that he didn't belong to thinks may have happened to a persona in a foreign country. THE COURT: There is another objection, and that is I

don't find it in the rules of evidence the tediousness is also a factor. MR. SCHMIDT: THE COURT: MR. SCHMIDT: Your Honor, if I may be heard. Of course you may. The government has brought out hearsay

on their direct examination concerning plots supposedly by EIJ members as part of al Qaeda to kill or attack Americans as a result for revenge purposes. case. They brought that out on their

We are counteracting that to show that while there is

discussions there, it's -- may I have a moment? (Pause) MR. FITZGERALD: Your Honor, I believe that first

17 18 19 20 21 22 23 24 25

came up in the case when Mr. Schmidt cross-examined Mr. Al Fadl about whether or not he first raised the issue in 1997 that he had first raised in October, 1996. In any event, the

indictment does charge that Egyptian Islamic jihad was working with Usama Bin Laden fatwas. this conspiracy. It's not hearsay. It's part of

The jihad group and al Qaeda merged and That is not

worked together for all practical purposes. hearsay.

Getting into what happened in Croatia or Egypt and

other things -SOUTHERN DISTRICT REPORTERS (212) 805-0300 1393 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 to make?

MR. SCHMIDT:

What I'm trying to do, your Honor, the

first witness Mr. Jamal tried to make it seem that they were altogether back in '93, '94, '95. What I'm trying to do with

this witness is show in truth they were not all together. THE COURT: All together in all activities as to all

things, but now assuming that's your objective, have you now not exhausted that topic? MR. SCHMIDT: No, I've not exhausted that topic. I

have some other issues that Jamal went through that I need to go with this witness to go through to get the accurate picture. THE COURT: MR. SCHMIDT: THE COURT: To this witness' knowledge. This witness' knowledge. What is the ultimate point you're trying

MR. SCHMIDT:

We have no dispute --

17 18 19 20 21 22 23 24 25

THE COURT:

Fill me in on what the actual point that

you're trying to make is what. MR. SCHMIDT: That EIJ and Islamic group was a very

separate, has a very separate identity that al Qaeda in '92, '93, '94, '95, '96 until some point in '98 when they came out with a joint declaration. I am trying to show that indeed

that they did have a separate identity that and they were not mixed like Mr., like Jamal Al Fadl led the jury to believe. They didn't merge until 19998. The jury has been left with a

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1394 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 misimpression from the government's first witness and that's what I'm struggling with, your Honor. THE COURT: You know, Mr. Schmidt, you're a very

skilled and experienced attorney, and the point as you just expressed it now it seems to me does not require an hour and twenty minutes of examination of the witness which only leads more to obfuscation than it does to clarity. I'll permit you to question the witness as to his personal knowledge of these events, but I do suggest that if you're really trying to communicate something to the jury an hour of asking a list of names is not a very effective way of doing it. We'll take a five minute recess. (Recess) (In open court; not jury present) MR. SCHMIDT: The stipulation as to the exhibit

should be in the presence of the jury, not in presence of the witness.

18 19 20 21 22 23 24 25

MR. FITZGERALD:

I would ask your Honor to advise the

jury that it was stipulated that the person in the picture Wadih El Hage Exhibit WEH C is Jamal Al Fadl. Your Honor, I

would just ask for a instruction separate from the stipulation that if the witness testifies as to his understanding of what it is the American government did or didn't do, that's not offered for the truth of the matter asserted, just for -THE COURT: I'll do that when there is a particular

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1395 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 question. MR. SCHMIDT: Your Honor, if it's a discussion of a

quote coconspirator conversation then it can be offered for the truth. THE COURT: If it's a statement in furtherance of the

conspiracy by a coconspirator. MR. SCHMIDT: That's correct. Your Honor, with regard to that, if

MR. FITZGERALD:

people are talking about taking action because they perceive the Americans are wrong, the relevance is that they are taking action, not the coconspirator statement whether it's true or not, it's irrelevant. If they think American did a bad act This doesn't prove that America did

that's to state of mind. a bad act. MR. SCHMIDT: THE COURT:

I have no disagreement with that. You marked that photograph WH exhibit C.

Bring the jury in, but not the witness and then the witness.

18 19 20 21 22 23 24 25

I'll tell you when to bring in the witness. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1396 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q. (Jury present) (Witness not present) THE COURT: I understand that the parties have

reached a stipulation with respect to exhibit WEHC for identification which is a photograph shown to this witness. Will you state the stipulation, please? MR. SCHMIDT: Yes, your Honor. It was stipulated

between the government and the defendant Wadih El Hage that the photograph is of Jamal Ahmed Mohammed Al Fadl. MR. FITZGERALD: THE COURT: witness in, please. (Witness resumed) Mr. Kherchtou, you heard that the Americans gave Talal to That's right, Judge. All right. Bring the

So stipulated.

the Egyptian government; is that correct? MR. FITZGERALD: MR. SCHMIDT: It's state of mind. Objection, foundation.

It's not for the truth, your Honor.

19 20 21 22 23 24 25

MR. FITZGERALD:

I'll withdraw the objection.

Instruction as to the state of mind. THE COURT: I understand the question that is going

to be asked of what this witness heard or understood, and understand that that testimony is relevant to this witness' understanding and this witness' state of mind, and not evidence of the truth of what it is that he had heard. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1397 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

The law provides that statements made by coconspirators in furtherance of the conspiracy are admissible. In other words, the usual hearsay rules which

would preclude testimony of what other people, not witnesses, said recognizes an exception and the exception relates to statements made by coconspirators in furtherance of the conspiracy, not just casual observations about irrelevant things. But we've heard an awful lot of testimony by witnesses who have said that they were members of al Qaeda and this is what other members of al Qaeda said, and that testimony has been received without limitation. So there is

that distinction between statements made by coconspirators in furtherance of the conspiracy and other statements which are being offered simply to show the state of mind of the listener. Sometimes the distinction may be obvious, in which

case the attorneys may request or I may on my own impose a limitation.

19 20 21 22 23 24 25

Q.

You may answer the request. THE COURT: You'd better restate the question.

Q.

Did you understand that Talal was given over by the

American government to the Egyptian government? A. Q. Yes. Was that information part of a discussion that you ever

had with al Qaeda members? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1398 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

A. Q.

Yes. Would it be fair to say that al Qaeda did not ever discuss

any type of revenge against the Americans as a result of this Islamic group member being turned over to the Egyptians? Would that be a fair statement? (Witness consults with interpreter) A. Q. No. That is not a fair statement or it is a fair statement?

Let me rephrase the question. A. Q. Okay. Was there any discussion that you heard of any revenge by

al Qaeda against the Americans for what happened to Talal of the Islamic group? A. Q. No. Now, you also heard that Sheik Rahman the leader of the

Islamic group was arrested in the United States; is that correct? A. Q. Yes. And any discussion of revenge for his arrest came from the

20 21 22 23 24 25

Egyptian group, the Islamic group, is that correct? A. Q. I didn't hear anything. Did you hear anything in al Qaeda about any revenge from

al Qaeda? A. No, but the, there was talking that they didn't like the

fact that one of the Islamic scholars were arrested in the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1399 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

United States. Q. A. Q. A. Q. A. Q. A. They opposed the United States arresting Sheik Rahman? Yes. Do you recall the first time that you met Mr. El Hage? Wadih El Hage? Yes. Yes. Was that in the Sudan? I don't remember exactly if I met him in Sudan or I was

visiting in the beginning, but I remember very well when he came the first time to Kenya. Q. So you may have heard about Mr. El Hage prior to him

coming to Kenya but you're not sure if you saw him? A. Q. Yes, I heard about him, yes. Now, you looked at a photograph of Mr. El Hage that the Do you remember that?

government showed you with a beard. A. Q. Yes.

And do you remember that you had some difficulty saying

for certain whether that was Mr. El Hage or not?

20 21 22 23 24 25

A.

No, I didn't recognize, they gave me a bunch of pictures,

I didn't recognize him, and the second time I think the second day I recognized him. Q. Now, many people when they were in the Sudan dressed and

their facial hair was more in comportment with traditional Islam look, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1400 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

A. Q. A. Q.

Not all of them. But some of them did? Yes. And sometimes it was difficult recognizing somebody who

you saw with a full Islamic beard and maybe an Islamic outfit when you see them in western clothes and clean shaven? A. Q. It is changes. There is only one Abu Ahmed that you know of, is that

correct? A. Q. Which Abu Ahmed. That's and Abu Ahmed who was an Egyptian artillery

specialist that you knew from Afghanistan; is that correct? A. Q. A. Q. There is no artillery specialist. The person is also known as Abu Ahmed al Houn? There is no Abu al Houn. Now, what you learned about Mr. El Hage even before

meeting him was that he was a person who was one of the first ones to come to Afghanistan; is that right? A. Q. Yes. Now, were you aware that he actually came from the United

21 22 23 24 25

States to Afghanistan? A. Q. I heard that. That was especially among al Qaeda people that somebody

that early on in the Afghani freedom war would come from the United States? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1401 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

A. Q.

No, we had people that came from all over the world. Now, so is it fair that you do not know -- withdrawn. You have no actual knowledge that Mr. El Hage ever

took bayat in al Qaeda, is that correct? A. Q. Yes. And it's your understanding that Mr. El Hage was

considered a very trustworthy person., Is that right? MR. FITZGERALD: Q. A. Q. By Mr. Bin Laden. Yes. And one of the reasons that you're aware of that he was Objection to form. By who?

considered trustworthy person is because of his early assistance given to the Afghani cause; is that right? A. Because he was one of the first people who went to

Afghanistan. Q. That was really before, certainly before al Qaeda; is that

correct? A. Q. Probably, yes. That was before the Services Office opened up in Pakistan? MR. FITZGERALD: Objection to competence, your Honor.

21 22 23 24 25 Q. A. Q. A.

THE COURT:

Restate the question.

Have you ever heard of the services offices or Makda? Makda Bakalmak. That's also called the Services Office; is that right? Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1402

12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A. Q. A. Q. Q. A. Q. Loosely translated? Yes. That was set up by Mr. Azzam and Mr. Bin Laden back in

1985, '86, is that right? THE COURT: No, I don't know. You got to know Mr. El Hage fairly well? Yes. Physically would you consider him a big person or a slim If you know.

person? A. Q. A. Q. A. Q. Well, he's a slim person. Were you aware of the birth defect in one of his arms? Yes. Do you recall which arm, the hand he writes with? I think his left hand writing. And the arm that suffers the wither they are from his

birth defect in his right arm? A. Q. Right hand. Now, there is though a person who may be Lebanese, an Do you

American that actually does have blondish hair. remember that person?

22 23 24 25

A. Q.

No. Do you remember a person at the Institute of Technology

that you met who was a Lebanese or Syrian American that had blonde hair? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1403 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

A. Q.

I don't remember. Do you recall who was in charge of studies at the

institute? A. Q. At which institute, please. The Institute of Technology that you went to? In

Pakistan? A. Q. Yes. You believe that that person was a Syrian or a Lebanese

American? A. Q. Yes. Now, to the best of your knowledge you arrived in Nairobi

sometime around October of 1993; is that right? A. Q. Yes. And you stayed there for a short period of time went back

to the Sudan for about 20 days and then came back to Nairobi is that right? A. Q. Yes. And soon after that is when Abu Hafs and others came in

the airplane from the Sudan? A. I wasn't there when he came. I really told that he came

there, but I wasn't there.

22 23 24 25

Q.

You weren't present in Nairobi when the airplane was flown

from Khartoum to Nairobi? A. Q. It was before I arrived to Nairobi. Now, Mr. El Hage arrived -- did Abu Ahmed leave Nairobi SOUTHERN DISTRICT REPORTERS (212) 805-0300 1404 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

before Mr. El Hage arrived? A. Q. I think so. Would it be fair to say that Mr. El Hage arrived some time

in the fall of 1994? A. Q. A. Q. A. Q. Yes, he came in '94. Would it be fair that it was in autumn, the fall? I don't remember. Did Mr. El Hage boss you around? Excuse me? Did he boss you around? Did he give you orders, go do

this, go do that, go do this? A. Q. A. Q. No. You were still taking your flying lessons, is that right? Yes. And still traveling back to Sudan as often as you could to

stay with your family as often as you could? A. Q. Yes. And when you went around, you have to share a room with El

Hage for a while, is that correct? A. Q. A. Yes. And he treated you as an equal? Yes.

23 24 25

Q. A. Q.

And with respect? Yes. And together you looked for a house for him and his SOUTHERN DISTRICT REPORTERS (212) 805-0300 1405

12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 family, is that right? A. Q. Yes. And you knew that he had his family in Khartoum that he

was very anxious to bring them over to Nairobi to be together. Is that right? A. Q. Yes. And you knew Nairobi much better than he did because you

had been there for a while by the time Mr. El Hage arrived; is that right? A. Q. A. Q. Yes. You were leading the search for the house? Yes. And the house has -- withdrawn. The house has a wall

around the whole piece of property; is that right? A. Q. Yes. And that's not uncommon in middle class section of Nairobi

is it? A. Q. Yes. It's common, isn't it? It's common to have that wall

around the home for protection in Nairobi? A. Q. Well, Nairobi is a dangerous city. Well, if you live in an area where you can afford there

23 24 25

was an area that was sort of in between Nairobi and the airport you ultimately found out, is that right? A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1406 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Q.

And the development that really stood alone with many

houses in one area where you turned off the road for the airport and it was surrounded by empty field? A. Q. A. Q. Yes. And each house there had a wall around the compound? Yes. That's because Nairobi is a somewhat dangerous city and

for security purposes if you could have a house with that wall you would want one? A. Q. A. Q. Yes. And within that wall there are actually two buildings? Yes. One was the building where Mr. El Hage lived with his wife

and many children, is that right? A. Q. Yes. And there was a back room that had a separate living area

and a bathroom where you were staying initially? A. Q. Yes. And to get into that back room you did not have to come You can get there from the driveway, is

into the main house. that right? A. Yes.

23 24 25

Q. A. Q.

How long did you stay there? Well, I don't remember exactly how long. Did you stay in your own apartment for a little while? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1407

12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. A. Q. A. Q. A. A. Q. A. Q. A. Q. A. No, I don't understand. When did you return to the Sudan in 1995? Probably the end of '95, yes, or early '96. Now, where did you live that whole time? Where in the Sudan or in Kenya? In Kenya. Well, what happened is exactly when we left and we gave me

him and Hasan together, but when he got that house I moved to the place with him, and it was time for the exam for flying course I was taking then I was going to Sudan and came twice. Once I think when I was doing the exams and another time when I was renewing the license. Q. Was that the only time that you were in Nairobi during

'94, '95 and Mr. El Hage was there? A. Yeah. MR. FITZGERALD: THE COURT: Objection to form.

Restate the question.

Mr. El Hage moved in some time in 1994, is that right? Yes. And his family joined him, correct? Yes. And you were in the separate building at his home, right? Yes.

24 25

Q. A.

Then you took your exam shortly thereafter? Yeah, I think I don't know exactly when in '95. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1408

12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. A. Early '95? I don't remember, because when after the exams I went back Then I came back after a year start to renew the

to Sudan.

license for the pilot. Q. A. Q. So after the exam you basically left Nairobi? Yes. So the only time that you spent with Mr. El Hage was the

period when he came until the exam? A. Yeah, he came, I stayed a while but I don't remember how

long it was. Q. A. Q. Two or three months? Probably, yes, more. Now, you came to renew your license is that in 1995 or

1996? A. Q. A. Q. A. Q. I don't remember the date. Well, did you get your license after the exam? Yes. How long was that license good for? One year. Then I have to renew.

So it's likely if you received your license sometime in

1995 you came back in 1996? A. Q. Yes. Now, you told us previously that the person handling the

24 25

money in al Qaeda would not give you -- withdrawn.

You told

me that Mr. Bin Laden would not give you money to renew your SOUTHERN DISTRICT REPORTERS (212) 805-0300 1409 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

license? A. Q. Yes, they refused to give me the money. Because al Qaeda didn't have -- withdrawn. You stated

that money was too tight to spend it on renewing your license, is that right? A. Q. A. Q. Yes. You still came to Nairobi, is that right? Yes. And you asked Mr. El Hage to help you renew your license,

is that right? A. Q. Yes. And even though Mr. Bin Laden said no, Mr. El Hage helped

you with the money? A. Q. Yes. He helped you with that even though at that time things

were very poor for Mr. El Hage's economic condition; is that right? A. Q. Repeat the question, please. There came a time where the economic conditions for Mr. El

Hage in taking care of his family and himself became difficult? A. Q. Yes. And, in fact, he was trying to make all types of business

deals that he could to try to raise money and help support him

25

and his family; is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1410 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

Yes. There were a number of times that you actually were

involved in some of the business deals that Mr. El Hage was trying to accomplish; is that right? A. Q. Yes. Now, for example, when you were working for Abu Abdallah Is

there was a sugar deal that Mr. El Hage was trying to do. that correct? A. Q. A. Q. Yes. And that was with Mr. Abu Abdallah, is that right? Yes. That was just a plain straight business deal, is that

right? A. Q. Yes. And you were supposed to fax him information concerning

some prices? A. Q. Yes. He actually called you in one of his faxes Captain Jamal,

do you remember that? A. Q. A. Yes. Is that a code name or more like a joke? No, it's my nickname was Jamal at a time and captain

because I had renew my license at that time. Q. That had nothing to do with al Qaeda or anything like

25

that? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1411 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

No. And Abdul Rakim also tried to be involved in that sugar

transaction, is that right? A. Q. Yes. And while you were in Kenya when Mr. El Hage was there did

you say that you never saw him prepare any type of report? A. I saw him he had his own computer, and what he's doing is

something he was doing something there. Q. He was typing letters and faxes and -- business

situations? MR. FITZGERALD: THE COURT: Q. Objection, competence.

Sustained.

Did you ever tell the government that you never saw Mr. El

Hage writing reports? A. Q. I don't remember. I understand you it's a little while ago and you answered Let's see if we can refresh your

lots of questions. recollection.

I'm going to ask you to take a look at what's

been marked 3535-9, page 19, where I made a little block. MR. SCHMIDT: THE COURT: May I approach the witness? The question isn't what it says there.

the question is whether reading that refreshes your recollection of a specific event. Do you understand? said? Do you understand what I've just

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1412 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. THE WITNESS: MR. SCHMIDT: No, sir. May I, your Honor? Having

I ask you to look at what's marked over there.

read that does that help you remember whether you told the government that you never saw Mr. El Hage writing reports? A. Q. A. Q. Yes. It helped you remember that? Yeah, he didn't write anything in front of me. Did the government show you a document that was called the

security report? A. Q. A. Q. Yes. Did you read it? Yes. Having reviewed it was it your belief that the person who

wrote it was Harun? A. Q. A. Q. Yes. And was not Mr. El Hage; is that correct? I don't remember exactly. To your knowledge you were aware that Harun -- withdrawn.

You knew a person name Harun, didn't you? A. Q. A. Q. A. Yes. And you knew him from Nairobi; is that correct? Excuse me? You knew him from Nairobi, is that correct? Knew him what?

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1413 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Did you know Harun from Nairobi? No, from Pakistan Afghanistan. Did you ever see him, when was the last time you saw him

in Afghanistan? A. Q. A. Q. A. Q. Probably '92. Did there come a time that you saw him again? Yes. Where did you see him again? I saw him in Nairobi. I saw him in Sudan. How long had you been in

When did you see him in Nairobi?

Nairobi before you saw Harun? A. Q. For a while. Did you become aware that Harun was involved in false

passports or other fraudulent documents? A. Q. Yes. Did you ever see Wadih El Hage involved with false

passports? A. Q. No. There came a time where Mr. El Hage left Nairobi -You learned at some point that Mr. El Hage left

withdrawn.

Nairobi for the United States; is that correct? A. Q. Yes. Do you know of any knowledge that anybody was sent over to

take Mr. El Hage's place? A. Take over? Excuse me.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1414 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. Right, do you know if anybody was sent over to replace

Mr. El Hage? (Witness consults with interpreter) No, I don't know. When you were in Nairobi at Mr. El Hage's, the building

outside Mr. El Hage's home you learned that Mr. El Hage was trying to register a nongovernmental organization called Help African People? A. Q. Yes. And were you aware of the difficulties that he was having

trying to register this nongovernmental organization? A. Q. Yes. Did he express his frustration frequently about how

difficult it was? A. Q. A. Q. Yes. Were you aware that eventually it was registered? Yes. And did you become aware that there were certain projects

that Help Africa People was involved in? A. Q. A. No. Did you learn about the malaria project with Harun? Yes. Excuse me. There were studies of this project. You

was talking about studies of his project. Q. And was Harun sent to Somalia to do a study of the malaria

project in Somalia? SOUTHERN DISTRICT REPORTERS (212) 805-0300

1415 12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Now, you also are aware of a nongovernmental organization Q. A. I don't remember but they were talking about the project

of malaria. Q. And was there also a project concerning irrigation that

they were trying to do? A. Q. I don't remember. Before funding the malaria project they wanted to have

some type of information about the usefulness of that project, is that right? A. Q. Yes. Now, the project was for the area of Somalia just over the

border? MR. FITZGERALD: THE COURT: If you know? THE COURT: Ask him whether he knows. Objection, competence, your Honor.

If he knows.

called Mercy International, is that right? A. Q. Yes. Who was in charge of Mercy International when you first Withdrawn.

arrived in Nairobi?

Who was the first person that you became aware of as the head of Mercy International relief organization when you first arrived in Nairobi? A. Abu Jamal Amrik. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1416

12Q1BIN2 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. The Mercy International relief agency had some type of

association with some Bin Laden people, is that right? A. Q. They were dealing with some people Bin Laden. You're aware that Mr. Bin Laden gave a lot of money to

relief in the Sudan, weren't you? A. Q. In Sudan, yes. That wasn't a surprise that Mr. Bin Laden would have

contact with relief agencies which he gave money to these agencies, is that right? MR. FITZGERALD: THE COURT: Objection, your Honor. Form of the question.

Sustained.

You're aware that Bin Laden gave money to relief agencies? Yes, in Afghanistan. Do you recall discussions of relief at the camps in Bosnia

that was supported by Mr. Bin Laden? A. Q. No. Now, another person who was involved with Mercy

International relief agency was Ahmed Tik; is that right? A. Q. Yes. He ended up taking over and running the agency; is that

right? A. Q. A. Q. Yes. And were you friendly with Ahmed Tik? Yes. Did you see him socially as well as doing business -SOUTHERN DISTRICT REPORTERS (212) 805-0300 1417 12Q1BIN2

Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Withdrawn. A. Q. Yeah. It's your understanding that Mercy International supported Did you see him socially?

orphanages in Somalia; is that correct? A. Q. A. Q. A. Q. A. Refugees? Yes. Yes. They supported hospitals in Somalia? Yes. They built mosques in Somalia? No. There are different agencies that, you know, some of Some of them they are specialize,

them they have mosques. some of them orphans. Q. A. Q. And the school? Schooling.

Was it sometimes difficult for you to travel in and out of

Kenya? A. Q. A. Q. No. You had a Moroccan passport? Yes. Now, while you were -- you knew that Mr. El Hage while

applying to register the NGO was also trying to work in the gem stone industry? A. Q. Yes. And in fact there were, he had many books about gems in SOUTHERN DISTRICT REPORTERS (212) 805-0300 1418 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

his home, is that right? A. Q. Yes. And you had read a number of those books to try to learn

about the gem stone industry as well, right? A. Q. Yes. And Mr. El Hage was contacting people that he knew

everywhere trying to see if they were able to sell gem stones and that they could make a profit together; is that right? A. Q. Yes. And do you know that he gave, are you aware that he gave

samples of his gem stones to Abu Haf? A. Q. A. Q. A. Q. A. Q. Who? The gentleman I think who lived in Queens is it? Yes. And also to Adelka? Yes. Who lived in Italy? Yes. And, in fact, they lost the stones and had to pay a

hundred dollars to Mr. El Hage for the lost stones? A. Q. A. Q. They didn't lost the stones. They sold? I don't know what happened there. Now, do you know that Mr. El Hage traveled within Africa Is that right?

concerning the stones.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1419 12Q1BIN2 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q. A. Q.

In Kenya, yes. Did he go to Tanzania? I think so, yes. Did he also send people to stones in Uganda? I don't remember. Do you remember talking about the blue stone a thing call

lapis lazuli stone? A. Q. Just about stones, but I don't remember particular name. When he was, when you were already back in Sudan part of

communications that you had with Mr. El Hage again was also about stones? A. Q. A. Q. Yes. Trying to sell a stone? Yes. You also had conversations or faxes concerning ostrich

eyes, you remember ostrich eyes? A. Q. Yes. Mr. El Hage found somebody who had an ostrich farm who

wanted to sell the eyes? A. Q. A. Q. Yes. The meat, yes.

He was communicating to you and Abu Abdallah in the Sudan? Yes. Now, there was in Kenya Mr. El Hage did not have a beard;

is that correct? A. No. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1420 12Q1BIN2 Kherchtou - cross

Q.

Did he ever a beard?

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

No. On direct examination you discussed the arrest of a few

people including Ahmad by Sudanian authorities, do you remember that? A. Q. Yes. And apparently that was because it was your understanding

that there was a conversation that Mr. Ahmad had with a Sheik Bilala? A. Q. It was Abu had a mad with Sheik Bilala. And Sheik Bilala was an opposition leader in Kenya; is

that right? A. Q. Yes. And the opposition that he was a member of were Muslims

opposition? A. Q. A. Q. Yes. And he was considered a religious traditional Muslim? Yes. And his supporters were religious traditional Muslims, is

that correct? A. Q. He support what? His supporters, the group that he led was Muslim, many

religious Muslims? A. Q. Yes. And you're aware living in Kenya during that time that the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1421 12Q1BIN2 Kherchtou - cross

Kenyan government opposed the religious Muslims having power;

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is that right? A. Q. A. Q. I can't say that. Well, they were opposed to Kalala, didn't they? Yes. And a mere telephone call to Bilala brought the Kenyan

police to your apartment? MR. FITZGERALD: MR. SCHMIDT: THE COURT: Q. Objection, your Honor.

Withdrawn. Sustained.

A telephone call from Chief Bilala brought the police to

your apartment, didn't they? MR. FITZGERALD: THE COURT: Q. Objection.

Sustained.

Is it your understanding that as a result of only a

telephone call -MR. FITZGERALD: THE COURT: Q. Objection.

Sustained.

Now, the authorities, the people in power in Kenya at the

time that you were there, were not Muslims, is that correct? A. Q. A. Q. Some of them they are Muslims. The president at that time was Mr. Morton? Yes. And the Muslim population was basically most the largest

portion of the Muslim population was up along the Somalia SOUTHERN DISTRICT REPORTERS (212) 805-0300 1422 12Q1BIN2 Kherchtou - cross

1 2

border and down the coast; is that correct? MR. FITZGERALD: Objection to competence.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 members? Q. Q. Q.

THE COURT:

Sustained.

Did you have conversations with members of al Qaeda who

went to Somalia came back from Somalia concerning the difficulty that they had with -A. Q. Yes, in the border. Did those discussions concern the Kenyans trying to

prevent Muslims coming into becoming a factor in Kenya? A. Q. I don't think so. Were you aware from reading and watching television in

Kenya that the Kenyan government regularly harassed and caused difficulty to religious Muslims? MR. FITZGERALD: THE COURT: Objection, your Honor.

Sustained.

It was a concern of the people going to and from Was the Kenyan government a concern --

Somalia -- withdrawn. withdrawn.

Being caught by the Kenyan government is that a concern by the people going to and from Somalia court? MR. FITZGERALD: THE COURT: Time frame. I assume that al Qaeda

Which people?

Yes, al Qaeda members. THE COURT: Did you have conversations with members

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1423 12Q1BIN2 Kherchtou - cross 1 2 of al Qaeda about their concern at the border? THE WITNESS: I didn't understand the question.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.

THE COURT:

Restate the question.

Did you have conversations with members of al Qaeda who

went and came back from Somalia of their concern with being stopped by Kenyan authorities? A. Q. Yes, probably, yes. It's your understanding that the people -- withdrawn.

That you went to Nairobi not only to learn to fly, but to assist people going in and out of Somalia; is that correct? (Witness consults with interpreter) THE INTERPRETER: Can you kindly repeat the question?

One of your, one of the things that you were requested to

do when you were in Nairobi was to assist the people who were traveling to and from Somalia? A. It wasn't my request. It was, it was normally I can do

this if I have time. Q.

It wasn't mandatory that I do that.

It was your understanding that the group of al Qaeda

people who were originally sent to Kenya, was to help the travel between to and from Somalia? A. Q. Yes, if you can do something you will do that. Now, you were aware while you were still in Afghanistan of

people traveling from al Qaeda to Somalia; is that right? A. Q. I heard. And you heard from al Qaeda members; is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1424 12Q1BIN2 Kherchtou - cross

1 2 3

A. Q.

Yes. And you had heard from al Qaeda members the terrible

problems that the Somalis were having after the fall of the

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

leaders of the country? A. Q. Yes. You were aware of the famine and the wars within Somalia

at that time; is that right? A. Q. Yes. And you knew from your conversations with Mr. Bin Laden or

al Qaeda that there was a concern about the suffering of brother Muslims in Somalia? MR. FITZGERALD: conversation with. THE COURT: Q. Yes. Objection. Clarify who he had the

Mr. Al Qaeda and Somalians? MR. FITZGERALD: THE COURT: MR. SCHMIDT: THE COURT: That is the objection.

Separate. Are they -Separate.

Q.

You had conversations with members of al Qaeda about the

desire to help the Muslims in Somalia to try to help them from their starvation and from the bandits that were there? A. Q. Yes, it is a wish to help Muslims everywhere in the world. But did you ever hear Mr. Bin Laden talking about early on

about trying to help the Muslim people of Somalia? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1425 12Q1BIN2 Kherchtou - cross

1 2 3

A. Q.

I didn't hear from Bin Laden himself. Now, from your conversations with members of al Qaeda is

it your understanding that the first al Qaeda members that

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

went to Somalia went to an area that's called Kadisla? A. Q. A. Kadisla? Yes. The first members of al Qaeda they went to Kadisla. The

first members they went to the north of Somalia. Q. A. Q. A. The part of Somalia that's near Dijbouti; is that right? Yes. Are you familiar with the map of Somalia? Yes, I can. MR. SCHMIDT: Going to show this witness what has May I, your Honor?

been marked as defendant WEHD. THE COURT: Q. Yes.

Now, could you make a mark if you can where the first Can you do it?

group of al Qaeda went to in Somalia? A. Q. A. Q.

Well, I think this area but I don't know exactly where. The northern portion near Dijbouti, is that correct? Yes. Somewhere in that area.

That was in the end of 1991 or early 1992; is that

correct? A. Q. Yes. And that ended some months later because of the

difficulty, internal difficulty dealing with the Somalians, is SOUTHERN DISTRICT REPORTERS (212) 805-0300 1426 12Q1BIN2 Kherchtou - cross

1 2 3 4

that correct? A. Q. Yes. Somalians wanted to do things their own way and they said

we'll take your money, but we don't want you?

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

I don't know exactly what happened. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1427 12qkbin3 Kherchtou - cross 1 2 3 4 Q. Also, shortly after that time, also the end of 1991, the

beginning of 1992, people were sent to two other areas in Somalia, is that correct? A. Yes.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A. Q.

One was the area that is called Ogaden. Yes. Ogaden is really in Ethiopia at this period of time, is

that correct? A. Q. Until now, yes. Even though it's in Ethiopia, the people who live there

are Somalians, is that right? A. Q. Yes. And the reason why it is part of Ethiopia is simply

because when the Europeans divided it up they gave that portion to the country of Ethiopia. A. Q. I don't know what happened. They also sent a group of people to the south part of

Somalia near the Kenyan border, is that correct? A. Q. Yes. Would that be the area that was called the Gedo region of

Somalia? A. Q. Yes. In the northern portion of Somalia there were people who

tried to form an Islamic government to rule in the northern portion of Somalia -- withdrawn. I will rephrase that

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1428 12qkbin3 Kherchtou - cross 1 2 3 4 5 question. Were you aware in your conversations with Al Qaeda members that the reason that the group of Al Qaeda people were sent to the area around Hargeysa was that there was a religious Islamic group there that was trying to help form an

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Islamic government? A. Q. Yes. And the people in the south, the Gedo region, there was a

group of Islamics that was also trying to form a society based on Islam, is that correct, based on your conversations with Al Qaeda members? MR. FITZGERALD: Q. Just asking for a time frame.

At the time frame that the people were sent. THE COURT: When was that? When to your knowledge

were Al Qaeda members sent to southern Somalia? A. Q. I think before I came to Nairobi, '92, I think. Did you think that it might have been the end of 1991 or

the beginning of 1992? A. I think during '92, because they were still in

Afghanistan. Q. Do you remember when you first were discussing Somalia

with government agents that you told them that Al Qaeda sent two or three groups to Somalia and Ogaden at the end of 1991 or the beginning of 1992? A. Probably, yes. If I said that, it is correct, but I think

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1429 12qkbin3 Kherchtou - cross 1 2 3 4 5 I am wrong. Q. A. Q. I think maybe 1992 they came to that place.

Then if it was 1992, it would be the early part of 1992. Probably. There was actually a group for name for the group in the Al

southern portion, the Gedo region, is that correct?

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Ittihad Al Islami, isn't that right? A. Al Ittihad al Islami is the main Islami group in Somalia,

so the same one in the beginning. Q. At some point after the Barre regime was overthrown and

there was chaos in Somalia, the al Ittihad group sort of split to different areas, is that right? A. Q. Yes. Based on your conversations with members of Al Qaeda, is

that right? A. Q. Yes. One group formed in the Gedo region of Somalia. Did you learn from members of Al Qaeda that Somalia is also broken up by clans? A. Q. Yes. Did you learn from discussions with members of Al Qaeda

that the clan of Mohamed Faraj Aidid was attacking the clan of Siad Barre? A. I don't know exactly was he attacking Siad Barre, but they

were fighting each others. Q. Did you ever hear the word the Marehan clan? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1430 12qkbin3 Kherchtou - cross

1 2 3 4 5 6

A. Q. A. Q.

Marehan? Yes. Probably heard the name but I don't remember. But you were aware that there were fierce battles between

Aideed's group and other groups? A. Yes.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A. Q.

That was causing great destruction in Somalia? Yes. And it was your understanding that the Islamic groups in

Somalia were trying to end the clan fighting and have a civilized society that cared for the people of Somalia, is that right? A. Q. Yes. It is your understanding that Al Qaeda members were sent

to help train these religious Somalis to defend their land and their people. A. Q. Yes. That included the Somalis that lived in the Ogaden, is

that correct? A. Q. Yes. The Somalis that lived in the Gedo region, is that

correct? A. Q. Yes. And the unsuccessful attempt of the Somalis that lived in

the north of Hargeysa, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1431 12qkbin3 Kherchtou - cross

1 2 3 4 5 6

A. Q.

Yes. All of this, all of this assistance from Al Qaeda occurred

before anybody had any idea that the United Nations or the United States was going to come and help the Somalis, isn't that correct? A. Yes.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Were you aware in your discussions with Al Qaeda that

during the 1992 period, that Aideed was anti-al Ittihad? A. Q. I don't know that. Did you ever hear the name of a person called Ali Mahdi

Mohamed? A. Q. Yes. He had support, based on your conversations with Al Qaeda

members, he had support of the religious Muslims in Somalia, didn't he? A. Q. I don't think so. You know that he and Mr. Aideed were fighting constantly

as well. A. Q. Yes. And they were causing destruction in Mogadishu, weren't

they? A. Q. Yes. The group, the original group of Al Qaeda people sent to

Nairobi was to establish for logistical purposes, helping the transit of the Al Qaeda people from Afghanistan into Somalia, SOUTHERN DISTRICT REPORTERS (212) 805-0300 1432 12qkbin3 Kherchtou - cross

1 2 3 4 5 6 7

isn't that right? A. Q. I don't know who -Do you remember saying to the government that the Nairobi

station was established, was only established for the logistical purposes to help the guys traveling to and from Somalia? A. Yes.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

That was back either in the end of 1991 or earlier in

1992, is that right? A. I said that when I was there, when I knew what they are

doing. Q. But there were people from Al Qaeda in Nairobi when you

arrived, right? A. Q. A. job. Q. Some period of time after the Al Qaeda people were in Yes. They were sent earlier, weren't they? Yes. There is one Kenyan from Al Qaeda, he was doing that

southern, south, the area of the Gedo region in Somalia, the area of the Ogaden region in Somalia, there came a time when the UN came into Somalia. A. Q. Yes. And at some point American troops also came into Somalia, Do you remember that?

is that right? A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1433 12qkbin3 Kherchtou - cross

1 2 3 4 5 6 7

Q.

Already the members of Al Qaeda were in Somalia, or in and

out of Somalia and back in Somalia for almost a year by the time the UN and the Americans went into Somalia. A. Q. Yes. Did you learn about the attacks by the UN and the

Americans on groups in Somalia? MR. FITZGERALD: Objection to form.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

THE COURT: MR. SCHMIDT: THE COURT: MR. SCHMIDT:

Yes. This goes to his state -Yes, but from whom. Withdraw that.

Did you have discussions in Al Qaeda about the American

and UN attacks on certain groups of Somalis? A. I don't know if they were attacking certain groups but

there was problems there in Mogadishu. Q. Do you recall if you heard from other Al Qaeda members

that the problems, one of the major sources of the problems was Mr. Aideed? A. Yes. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1434 12qkbin3 Kherchtou - cross 1 2 3 4 5 6 7 8 are here. Q. Did you ever see film or photographs or a report of an

attack by American troops on what is called Abdi House? MR. FITZGERALD: MR. COHN: Objection, your Honor. I would

I would like to be objection.

like to be heard on this at sidebar at some point. THE COURT: I tell you, I am told the jurors' lunches

So why don't we break for lunch until 2:00. (Jury excused)

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(Record read) MR. FITZGERALD: My objection, he is asking in This is classic

essence has he seen TV reports, photos, film? hearsay.

He has to limit it to Al Qaeda discussions or he On direct, every objection is to foundation and

wasn't there.

competence, and now he is asking if he has ever seen TV. MR. COHN: Your Honor, my objection is somewhat more It was my understanding at

general, and it is precautionary.

the beginning of this trial that we were not going to get into the shoot-out, the 18 dead Americans and dragging an American body through the street, and it is my fear that this line of questioning opens the door to that if the government wishes to enter. So I object. I don't think it is particularly I don't speak for Mr.

relevant from our point of view.

Schmidt's view of its relevance to his case, but I believe I speak for the capital defendants at least, that we object. THE COURT: Mr. Schmidt.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1435 12qkbin3 Kherchtou - cross 1 2 3 4 5 6 7 8 MR. SCHMIDT: Your Honor, I am obviously not bringing

out the information about the Abdi House attack for the truth of the matter at this time through this witness. THE COURT: MR. SCHMIDT: What are you bringing it out for? I am bringing it out for his state of

mind and then the Al Qaeda's state of mind about the American conduct in Somalia. THE COURT: What is the significance of his state of

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

mind with respect to the American conduct in Somalia? MR. SCHMIDT: It is his state of mind and the Not just his in

discussions with Al Qaeda's state of mind. particular, it is also Al Qaeda's. THE COURT:

Let's take them one at a time.

What is

the relevance of his state of mind with respect to American actions in Somalia? MR. SCHMIDT: Also he apparently -THE COURT: All right. If we are limiting it then to It is not just his, it's Al Qaeda's.

what this witness can tell us about Al Qaeda's state of mind with respect to American actions in Somalia, then the questioning would be limited to what Al Qaeda members told him on that subject. Don't you agree? Or what he told other Al Qaeda members. What is what he told -- if his state is

MR. SCHMIDT: THE COURT:

irrelevant, what is the relevance of what he told them? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1436 12qkbin3 Kherchtou - cross

1 2 3 4 5 6 7 8 9

MR. SCHMIDT:

What he told that person becomes aware Moreover -If you

of this, it becomes that person's state of mind. THE COURT: No, no, no.

That's too remote.

want to say did he have a conversation with Al Qaeda members concerning Americans' actions in Somalia, that's a permissible question. If you want to follow up, and what did Al Qaeda

members tell you of Americans' actions in Somalia, that's a permissible question. MR. SCHMIDT: It is also my understanding of the plea

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of this witness that the crime that he is charged involves his conduct in relation to Americans in Somalia. THE COURT: MR. SCHMIDT: Yes. So that is part of his plea and his

state of mind is part of -THE COURT: what? MR. SCHMIDT: is part of Al Qaeda. The government claims that Mr. El Hage But now I am going into his credibility And the relevance of that to El Hage is

and his involvement in the criminal acts that he has pled guilty to. THE COURT: You can ask him what he did, what acts he

took, assuming you haven't covered that already, and I thought you had. You asked him whether part of his assignment besides

learning how to fly was to help, and he said to the extent I could. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1437 12qkbin3 Kherchtou - cross

1 2 3 4 5 6 7 8 9 mind --

MR. SCHMIDT:

If I may, your Honor, his state of

THE COURT:

So are we in agreement now that films, TV I will sustain

or what he read is not a permissible question? the objection to that question. MR. SCHMIDT:

I believe that I should be allowed to

go into his state of mind since it is part of the conduct he pled guilty to, so I can cross-examine him as to his state of mind. And then where and how he developed his state of mind

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is relevant. THE COURT: If you want to ask him what he did in

connection with Al Qaeda and Somalia, assuming you haven't done that already, you may ask him that. If you want to ask

him why he did it, what his motivation for doing it was, you may ask him that. MR. SCHMIDT: THE COURT: Your Honor, he -Let me finish, please.

But the assumption that you can use this to ask anything with respect to Americans' actions in Somalia is inappropriate. Now there is another question. Assuming you do all

that, Mr. Cohn's objection is that it would open the door to matters which the government has agreed it will not pursue in this case, and obviously you can't have it both ways. MR. SCHMIDT: Your Honor, my simple response to that

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1438 12qkbin3 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 is, the government, before we started the trial said that they were willing to take out the overt act, and we assumed that Somalia was not going to be an issue, immediately goes into Somalia, that Al Qaeda is responsible for all the killings of all the Americans in Somalia. So they have brought it out and The idea of not

we have to deal with that issue already.

being specific or a specific attack is, I think, ludicrous if they are saying they are involved in all the killings of the United States but we are not going to talk about a specific one. We have to deal with that.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. FITZGERALD:

Just so we are clear, your Honor, we What we did

have not agreed to take that issue off the table.

agree was to discuss whether certain discovery and other issues would be mooted if one overt act was not proven. have still to hear back on that. We

We have agreed not to offer

the proof at this time and we have held that decision in suspense until we hear a response. think that we have waived anything. THE COURT: To summarize where we are, I will permit I don't want anyone to

you to ask this witness, to the extent that you have not already done so, as to what actions he took with respect to Al Qaeda and Somalia. I will permit you to ask him his

motivation for doing this, why he did that, and I will permit you to ask what he was told by Al Qaeda members with respect to the Al Qaeda operation in Somalia. And now we are

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1439 12qkbin3 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 adjourned for lunch until 2:00. MR. SCHMIDT: If I may, your Honor, what I would like

to do is also question him concerning not only what he did but his state of mind. THE COURT: MR. SCHMIDT: You may ask him why he did what he did. I just don't want to ask that

particular open-ended question like that, because this is cross-examination. THE COURT: to ask him. Yes. Give me an example of what you want

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Schmidt?

MR. SCHMIDT:

I will think about that and I will give

you the example after lunch, your Honor. MR. FITZGERALD: Your Honor, could counsel indicate

whether he intends to get into the number of civilian casualties in Somalia as part of his questions of the witness's state of mind? THE COURT: Do you want to respond to that, Mr.

MR. SCHMIDT:

I don't know at this time. We would have a standing objection

MR. FITZGERALD:

and ask to be heard before we do that and I would alert other counsel that that issue would certainly impact on our decision whether to omit the overt act. THE COURT: Adjourned until 2:00.

(Luncheon recess) SOUTHERN DISTRICT REPORTERS (212) 805-0300 1440 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11

A F T E R N O O N 2:00 p.m.

S E S S I O N

(In open court; jury present; witness resumed) MR. COHN: THE COURT: attention? MR. COHN: THE COURT: robing room. I'm afraid so. I'll see counsel and the reporter in the Your Honor, we have a problem. Is it something which requires immediate

Sorry, ladies and gentlemen.

(Continued on next page)

12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1443 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 A. (Pages 1441 through 1442 sealed) (In open court) THE COURT: We will make arrangement at 4:30 for Mr. Schmidt, you may

counsel to consult with clients. continue. BY MR. SCHMIDT: Q.

Mr. Kherchtou, I'd like you to take a look at defendant If we can have that

Wadih El Hage Exhibit D, Somalia map.

shown to the witness and counsel please. Is that then on your screen over there? No, sir.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.

THE COURT: THE WITNESS:

Yes, there it is. Yes.

Now, does that map of Somalia, is that a fair and accurate

representation of the country of Somalia? A. Yes. MR. SCHMIDT: THE COURT: I offer that into evidence. Any objection? No. Received.

MR. FITZGERALD:

(Defendant's Exhibit D received in evidence) Now show that to the jury. Thank you.

Now, on the map you can see where the city of Hargeysa is. the map? A. Excuse me? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1444 12Q1BIN4 Kherchtou - cross Is that the city in the center, upper center of

1 2 3 4 5 6 7 8 9 10 11 12

Q. A. Q.

The word Hargeysa? Yeah, it's in the north. Is that the one of the places that al Qaeda sent

representatives in late 1991, early 1992? A. I don't know exactly the city, but probably in the north

in this area. Q. Now, I ask you to take a look where it says Ogaden. Do

you see that? A. Q. Yes. Now, Ogaden as marked there is part of Ethiopia, is that

correct? A. Yes.

13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A. Q.

But the Ogadeni people are Somalis, is that right? Yes. Now, is it one of the areas that al Qaeda sent people in

late 1991 early 1992 was the border area of the Ogaden with Ethiopia and Somalia? A. Q. A. Q. Yes. Now, I ask you to look down at the area around Kenya? Yes. And that's the southern portion of Somalia is the area Now, is the ghetto region in the area

around Kenya.

approximately where the name Kenya is over the border into Somalia? A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1445 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12

Q. A. Q. A.

Thank you. It's in the north of this map, in the northeast. That's the -Not where the word Kenya is written, but it's in the

northeast. Q. A. Q. A. Q. So that's above where the word Kenya is? Yes. Closer towards Ethiopia? Close to the border with Ethiopia. In fact some of the people -- withdrawn. Actually, some

of the Ali Tahad in the ghetto region were attacked by Ethiopian groups, are you aware of that?

13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. Thank you, sir. Now, did you have discussions with or did you hear

members of al Qaeda discussing the attacks on Somalis by the UN and the United States troops in Somalia? A. Q. No. Did Abu Mohamed Masry go to Somalia at some period in

time? A. Q. Yes. Now, did he go, was it -- withdrawn. When he went to Somalia was in 1994, isn't that correct? A. Abu Masry? He went to Somalia, yes.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1446 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 Q. It was in 1994 that he went so Somalia, isn't that

correct? A. Q. He went before that I think, yeah. Now, you had a lot of conversations with the, with agents

of the United States, is that correct? A. Q. Yes. And do you recall the first conversation that you had with

them was in August 25 of last year? A. Q. A. Q. August 25th? I don't remember the exact date.

It was around the end of August? Yeah. And would it be fair to describe that you had

approximately 26 meetings with the American officials between

14 15 16 17 18 19 20 21 22 23 24 25

that first one in the end of August and the very beginning of January of this year? A. Q. Yeah, probably. Now, in one of those conversations on August -- excuse

me -- August 21st, it was the end of August, did you tell the government that when Mohamed el Masry went to Somalia it was approximately 1994? A. Q. 4. If I say that, yes. Well I'm going to show you what's marked as 3505-7, page I'm going to ask you to take a look at what's written Read it to yourself and then I'll

there, that's in brackets. ask you a question.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1447 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 Q. A. Okay. MR. SCHMIDT: THE COURT: (Pause) Now, having read that, does that help you remember that May I approach the witness, Judge? Yes.

when Mohammed al Masry went to Somalia about 1994? A. Well, in this statement I said they are talking about he

went in Somalia then went to Mogadishu, but Mohammed went to Somalia before that. Q. He went to Mogadishu then in 1994, would that be more

accurate? A. Q. I think so, yes. So earlier he went to other parts of Somalia, and then in

14 15 16 17 18 19 20 21 22 23 24 25

1994 he went to Mogadishu? A. Q. Yes. Thank you. Was he with one of the first groups that went to either the northern section, the Ogaden section or the ghetto section of Somalia? A. Q. I think he went first in ghetto section. That was back in either late 1991 or early 1992, is that

right? A. Q. Yeah, I wasn't there when he went there. Now, in 1994 Mr. Bin Laden made some statements about the

US in Saudi Arabia, is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1448 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14

A. Q. A. Q.

Yes. He also made some statements about the US in -No, at that time he didn't talk about Somalia. Did you in either 1994 or earlier ever hear of any fatwas

issued by or for Usama Bin Laden concerning Saudi Arabia, the Gulf War or Somalia? A. Q. A. Q. Fatwa? Fatwa. No. Did you ever hear of fatwa issued in 1995 by or for

Mr. Bin Laden? A. Q. I don't remember. Is this something that you would likely remember if you

heard it?

15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. In fact, the first fatwa that you heard was about Saudi

Arabia, and it was directed to the Saudi citizens, isn't that right? A. Well, this is a difference between fatwa and statement.

Fatwa is something that issued by one of the Islamic scholars, and it's something religious that everybody must follow, but if a statement it must be opinion, I can follow that or not. It's not mandatory. Q. A. So Mr. Bin Laden 1996 issued a statement, not a fatwa? When he, from Afghanistan he issued a fatwa, but it's not SOUTHERN DISTRICT REPORTERS (212) 805-0300 1449 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14

him who issue the fatwa.

He's talking about the other Islamic

scholars who agreed about that fatwa, but not him. Q. A. Q. A. Q. That was directed to the Saudis; is that correct? '96? Yes? I don't remember. It was in general about United States.

Now, you told us that you received some type of training

by Mohammed al Amriki when you were in Pakistan, is that correct? A. Q. A. Q. A. Yes. Now, do you remember what year that was? Probably the early '93. You left Pakistan near the end of 1993. Yes. Is that right?

15 16 17 18 19 20 21 22 23 24 25

Q.

Now, did you do any surveillance on behalf of Mohammed al

Amriki or Usama Bin Laden or anybody in 1993 other than your training? A. Q. A. Q. During the training? Other than the training? No. And in the training did you do surveillance of a police

station? A. Q. Yes. Now, in late 1993 or early 1994 you saw Mohammed al Amriki

again; is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1450 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

A. Q. A. Q. A. Q. A. Q.

Where? Late 1993 or early 1994? I think it's '94. Would that be early part of 1994? Probably, yes. And you were in, living in Nairobi with Mr. Hamid, right? Abdul Hamid. Now, you described to us previously the setup of what

Mohammed al Amriki did to the apartment, you remember describing it to us? A. Q. A. Q. When they took small part of my apartment? That's correct. Yes. And they took the part that they blocked off for the dark

room was the part furthest from the room that you were staying

16 17 18 19 20 21 22 23 24 25

in with Mr. Hamid. A. Q. Yes.

Is that right?

Now, at that time you were, excuse me -- Mr. Al Fa was or

Hamad was still in Kenya; is that correct? A. Q. Yes. Yes.

And Wadih El Hage was either in the Sudan or traveling

around Europe on behalf of Usama Bin Laden's companies, is that right? MR. FITZGERALD: MR. SCHMIDT: Objection to form.

I'll rephrase the question.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1451 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q. Mr. El Hage was not in Kenya at that time, is that

correct? A. Q. Yes. Now, whenever there was -- withdrawn. At the end of the

day all of the negatives or photographs were taken from your apartment with Mohammed al Amriki and the others, is that correct? A. Q. Yes. Nothing was ever left in the apartment that had anything

to do with why they were there; is that correct? A. Q. That had anything what? Nothing, no photographs, reports, films, negatives were

left in the house with you, is that right? A. Q. No. It's right, yes.

Thank you.

16 17 18 19 20 21 22 23 24 25

And, in fact, whenever there was film, negatives, photographs or reports present in your apartment there was always someone there from the group, that group, who came with Mohammed al Amriki to make sure nobody else gets to see it? A. Q. A. Q. Yes. This was a very secretive operation, is that right? Yes. And while you saw things going on in the apartment, no one Is that correct?

talked to you about that. A. No.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1452 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Q. A. Q. They talked to you about that? No. Did anyone talk to you about what was going on in the

apartment? A. Q. No, I know that they are doing something in the apartment. But no one talked about it at all other than what you saw;

is that correct? A. How can I if I knew what they are doing, how can they tell

me, we are developing pictures? Q. Well, they didn't talk to you about what the pictures

were? A. Q. A. Q. A. No. Did they talk to you about what the pictures were? No. Did you talk to Mr. Hamad about the pictures? No.

17 18 19 20 21 22 23 24 25

Q. A. Q.

Did you talk to Mr. Hamid about the pictures? Well, they all see the same what I saw. But you didn't have discussions beyond what you just saw,

is that right? A. Q. I don't think so. Because this was something that was very secret and you

knew that you really shouldn't be about having conversations about that with other people, even people who were in al Qaeda; is that right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1453 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

A. Q.

Sometimes, yes. Well, this was one of the things that you wouldn't discuss

with anybody, isn't that right? A. Q. A. Q. A. Q. A. Q. A. Q. Yes. Now, Mr. Amriki was also and Egyptian; is that right? Who? He was an American, an Egyptian? Who, Amriki? Yes? You said Mr. Amriki. Mohammed Amriki was an Egyptian, is that right? Yes. And he was also present there with another Egyptian that

you don't remember his name, is that correct? A. Q. No, I remember his name. What was name?

17 18 19 20 21 22 23 24 25

A. Q.

Abu Harad el Masry. Now, sometime later you were living in the room off of Mr.

El Hage's family's home when Mohammed al Amriki came back; is that right? A. Q. Yes. Now, how long after that event did you leave to go back to

the Sudan? A. Q. I don't remember. When Mohammed al Amriki spoke with you about Senegal he SOUTHERN DISTRICT REPORTERS (212) 805-0300 1454 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

spoke to you in your room that was separate from Mr. El Hage's family's home; is that correct? A. Q. Yes. And Mohammed al Amriki when he came to the house he did

not have all of the material that they had had at the earlier surveillance; is that correct? A. Q. Yes. So there was no cameras, there was no film, there was no

developers, no machines, is that correct? A. Q. I think he had a camera but it's seems normal. When you say you think he had a camera, do you think

that's sort of a guess at this point? A. Q. A. Q. Excuse me? Is that a guess, are you guessing that he had a camera? He had a camera, yes. You remember having a conversation in August 19th, 2000

with a representative of the government where you told him

18 19 20 21 22 23 24 25

that they did not have any cameras because they were not ready to go to Senegal at the time? Do you remember saying that? A. Q. If it says it, yes. Well, let me show you what's marked as 3505-6, page 22. May I approach the witness, your Honor? THE COURT: Yes.

Now, you read that, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1455 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

A. Q.

Yes. Now, back in August -- withdrawn. Have you ever testified

in any proceeding before? A. Q. No. Are you nervous about sitting here and being asked

questions and giving the answers before everybody here? A. Q. A. Q. Yes, normal I think. Excuse me? I think it's normal here. Were you more comfortable back in August when you were

sitting down and talking with the government? A. I think it was the same thing. I never sit with the

government before. Q. Now, having reviewed the document do you have a present

recollection, do you remember now that there was wasn't a camera, that Mr. Mohamed al Amriki, al Amriki did not have a camera back then? Is that your accurate recollection?

18 19 20 21 22 23 24 25

A. Q.

No, I think he had a camera. You remember now saying to the government back then that

he did not have a camera? A. Well, I think because you interested in this small things You refreshed my mind. But the camera

I remembered that.

wasn't for anything here. Q. A. It wasn't? I mean Mohammed is carrying a lot of stuff everyday, every SOUTHERN DISTRICT REPORTERS (212) 805-0300 1456 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

time. Q. A. Q. A. Q. A. Q. A. Q. He's always traveling with a lot of different items? Yes. He was staying in the room with you when he was there? Yes. And his belongings remained in that room? Excuse me? His belongings, his luggage remained in that room? Yes. Now, again how many days was Mohammed al Amriki with you

in the room outside of Mr. El Hage's house? A. Q. A. Q. I don't remember. I mean, was it a few days or a week? No, it was a few days. And, again, this was something when you spoke to Mr.

Mohamed al Amriki, the surveillance was something that you wouldn't talk to with anybody else, is that right? A. I shouldn't, yes.

19 20 21 22 23 24 25

Q. A. Q.

And in fact, you didn't, isn't that correct? I don't remember. Now, in Nairobi Moy Avenue is a major street in downtown

Nairobi, is that correct? A. Q. Yes. There are many government buildings on Moy Avenue; is that

right? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1457 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.

I don't know. Within a block or so of Moy Avenue? Government buildings they are not in Moy Avenue I think. There are many airline companies? Yes. Around Moy Avenue? Yes. Do you recall the address of Egypt Air? Egypt Air, I don't remember the address. Do you recall the address of El Al? What? The Israeli airline, do you recall the address of the

Israeli airline at the time? A. Q. No, no. Do you recall the address of the French, Air France, the

French airlines? A. Q. I don't remember it. Do you know the address of the Egyptian embassy?

19 20 21 22 23 24 25

A. Q.

I really don't remember it. Many countries have offices downtown Nairobi; is that

correct? A. Q. Yes. Now, you said on direct examination that it was clear that

at some point the United States was the enemy of all the Muslims groups in the Sudan. You remember saying that?

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1458 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A. Q. A. Q. A. Q. Yes. Now, do you recall Mr. Bin Laden -- withdrawn. Would it be fair to say that while Mr. Bin Laden was in the Sudan he didn't express great animosity towards the United States? MR. FITZGERALD: THE COURT: Objection to form. Express to whom?

And his knowledge.

I sustain the

objection to the form of the question. Q. Would it be fair to say that you never heard Mr. Bin Laden

express great animosity towards the United States when he was in the Sudan? A. Excuse me. (Witness consults with interpreter) Probably I heard him. You can't remember? Yeah. So if he said something it would be something that was I can't --

something that didn't stick in your mind? A. Because the matter was obvious. He can talk about that.

20 21 22 23 24 25

Q.

Well, would it be fair to say that Mr. Bin Laden and many

Muslims were not, many members of al Qaeda, were not happy that the United States remained in Saudi Arabia after the Iraqis were thrown out? A. Q. Yes. Is it fair to say that not only al Qaeda and Mr. Bin SOUTHERN DISTRICT REPORTERS (212) 805-0300 1459 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Laden, that most Muslims were not happy with the United States remaining in the land of the holy places after the Iraqis were thrown out? MR. FITZGERALD: Objection, competence again, your

Honor, speaking on behalf of most Muslims. THE COURT: Ask him what he understood and what the

basis of that understanding. Q. Is it your understanding that most Muslims were not happy

with the Americans remaining in the land of the holy places after the Iraqis were thrown out? A. Yes, not most Muslims because many Muslims they don't know Maybe I can say just groups, Islamic groups. What was the basis of your understanding?

what's going on.

THE COURT:

(Witness consults with interpreter) THE INTERPRETER: on or carried out. MR. SCHMIDT: Excuse me? The conversations that were carried The conversations that were going

THE INTERPRETER: out, what was being said.

20 21 22 23 24 25

Q.

Now, the conversations showed many people in al Qaeda and

the other Islamic groups their displeasure of the Americans remaining in Saudi Arabia, is that right? A. Q. Yes. Now, however, there is a difference, a big difference

between viewing the United States as an enemy because they are SOUTHERN DISTRICT REPORTERS (212) 805-0300 1460 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

present in Saudi Arabia versus actually attacking Americans. Isn't that right? A. Q. Yes. And your view and the view of other al Qaeda members was

that while Americans were an enemy because they were preventing true Islamic government from taking over that there was no intention of attacking Americans, isn't that correct? MR. FITZGERALD: other members' views. THE COURT: A. Q. Overruled. Follow up. Objection to form. His view and

Can you repeat the answer and your question. Isn't it a fact that -- withdrawn. Could you repeat that question, please. (Record read)

A. Q.

Well, the intention of attacking wasn't in the beginning. In the beginning meaning the first time that you were in

Afghanistan, is that correct? A. Q. A. Even further. And the time that you were in the Sudan; is that correct? I realized that when I saw people coming to make

21 22 23 24 25

surveillance in Kenya that they might to do something in the future. Q. So didn't you say that the first time that the real

animosity against the US started after Mr. Bin Laden went to Sudan? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1461 12Q1BIN4 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

A.

Well, after he left the Sudan he started issuing that

various statement about the United States. Q. That's the first time where you had any inkling that Bin

Laden would ever do anything like what happened in 1998, isn't that right? A. Q. Yes. When Mr. Bin Laden went back to Afghanistan you remained

in the Sudan; is that right? A. Q. Yes. But you heard from people who still remained in the Sudan

many things that were going on with Mr. Bin Laden and al Qaeda; is that right? A. Q. Yes. And it seemed to you what you were learning was that some

members of the Egyptian jihad were gaining influence over Mr. Bin Laden, is that right? MR. FITZGERALD: one made on direct. THE COURT: Q. Restate your question. Objection to competence, the same

You heard from people who still were al Qaeda members that

21 22 23 24 25

people like Sawa Hiri was gaining influence over Bin Laden Afghanistan, didn't you? MR. FITZGERALD: THE COURT: Q. You may answer. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1462 12Q1BIN4 Kherchtou - cross Same objection.

I would permit a yes or no to that.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

A. Q.

Yes. Now, Mr. Bin Laden -- withdrawn. Now, was it after Mr. Bin Laden issued the fatwa

concerning Saudi Arabia from Afghanistan in 1996, was it -MR. FITZGERALD: MR. SCHMIDT: Q. Objection to form.

I'll start over again, your Honor.

Was it al Qaeda -- did you hear from people who were in al

Qaeda that Bin Laden's fatwa was a fatwa issued from Afghanistan concerning Saudi Arabia was an attempt to become a popular figure in Saudi Arabia? MR. FITZGERALD: THE COURT: Q. Objection to form again.

Sustained.

When did you first hear about the Saudi Arabian -When did you first hear of the fatwa issued

withdrawn.

concerning Saudi Arabia from Afghanistan? MR. FITZGERALD: Honor, please. MR. SCHMIDT: Q. Withdrawn. Objection to form again, if your

Did you ever hear about the fatwa from Afghanistan

concerning Saudi Arabia? MR. FITZGERALD: Objection, again.

22 23 24 25

THE COURT: objecting to?

It's the last phrase that you're

MR. FITZGERALD: THE COURT:

Yes.

Sustained.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1463 12Q1BIN4 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. When was the first time that you heard a fatwa issued out

of Afghanistan? A. Q. A. Q. A. General fatwa? General fatwa. The end of '96 I think. Was that about Saudi Arabia? If I remember it was about United States. (Continued on next page)

22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1464 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. A. It was about the United States troops in Saudi Arabia? They are using the presence of United States in Saudi It was not the reason.

Arabia so as to issue this fatwah. Q.

It was basically to try to effect a change in the

government of Saudi Arabia, is that right? MR. FITZGERALD: THE COURT: Objection, your Honor. Competence.

You can ask him whether he was familiar

with the fatwah, what its contents were, and whether that was one of the objects stated in the fatwah as its objective. Q. Did you talk with anybody who was a member of Al Qaeda

after you heard about the fatwah issued from Afghanistan? A. Q. Probably, yes. Do you remember the conversation that you had with that

person or persons? A. There was no many people there of Al Qaeda in Sudan at

that time. Q. Do you remember what their reaction to that fatwah was? THE COURT: You know, a statement by some

unidentified member of Al Qaeda doesn't necessarily constitute the policy of Al Qaeda. You can ask him whether he read it,

whether he was familiar with the contents, whether he discussed the contents with anyone else.

23 24 25

MR. SCHMIDT:

Your Honor, I am not asking whether it

represents the, quote, Al Qaeda position, but only -THE COURT: I sustain the objection. Move on,

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1465 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. Q. A. Q. Yes. After prayer? Yes. The guesthouse they were usually held in was the one please. Q. When you were in the Sudan during your two, three or four

weeks visits from Kenya and after you returned to the Sudan, you went, sometimes you went to weekly discussions at Al Qaeda guesthouse, is that correct? A. Q. Yes. The guesthouse that it was usually held in -- withdrawn. They were Thursday evening meetings?

called the Saudi guesthouse. A. Q. I have never heard this name. It's a guesthouse where many Saudis used to stay, and it

had a big room and it was in the Riyadh section. A. Q. A. Q. A. Q. Yes, but its name was guesthouse. There is no Saudi. OK.

These Thursday meetings were not mandatory, were they? Yes. They weren't mandatory, yes.

But you usually went anyway. Yes. You never saw the person who was depicted in the

23 24 25

photograph that I showed you, Defendant's Exhibit, WEH Exhibit C, you never saw that person at any of those meetings, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1466 12qkbin5 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

A. Q. A. Q.

Which person, the first one you showed me? The photograph that you looked at. No. At these guesthouse meetings, it was an opportunity to see

people that you may have not seen for a while, is that right? A. Q. Yes. And you discussed news, both what's happening in the

Sudan, international news? A. Q. Yes. There were sometimes lectures about the ways of the

prophet? A. Q. Yes. There was actually a Koran memorization program that was

given at the guesthouses? A. Some people who are visiting there, not like me who are

traveling, they have that program. Q. But most of the lectures, the religious lectures and the

sermons, were not given at the guesthouse, they were given in local mosques; is that right? A. Q. Some in local mosques, some in guesthouse. There was a religious committee in Al Qaeda, is that

right? A. Yes.

24 25

Q.

Was it the opinion of many members of Al Qaeda that the

religious committee did not have a very high status? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1467 12qkbin5 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

A.

Excuse me. (Interpreted) THE INTERPRETER: He is asking for more clarification

of the question. Q. Would it be fair to say that when Bin Laden, or Al Qaeda

was looking for religious clarifications of -- withdrawn. Would it be fair to say that when Al Qaeda or Mr. Bin Laden were looking for clarification of religious issues, that he often spoke with scholars in Saudi Arabia? A. Yes, if they are big issues, he has to bring something

from the scholars, yes. Q. And while there were some learned, some people who had

memorized the Koran who were living in the Sudan, they were not considered high enough scholars at times, is that right? A. Yes. As I said, there is a big difference between Scholar is very

somebody who memorized the Koran and scholar.

top in not only Koran but in sharia, in the prophet life and in other things. Q. So for somebody to be able to issue a fatwah, they have to

really be a great scholar. A. Q. He has to be, yes. And there was really nobody in the Sudan that would fit

that category of a great scholar, is that correct? A. To my knowledge, Abu Ibrahim al Iraqi, for example, he has

24 25

some skill, but the others, they are not, they don't have the level. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1468 12qkbin5 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

Abu Ibrahim often lectured at the mosques on Friday night,

didn't he? A. It's not Friday night. It's during the Friday prayer.

It's 1:00. Q. I apologize. It was on Friday, though, after the 1:00

prayer -- withdrawn. On Fridays after the communal prayer, is that when there were lectures? A. Q. Yes, he was doing the lecturing this prayer. In Islam, the one time where it is very important to try

to have communal prayers is on Friday, is that correct? A. Q. Yes. And often because there are communal prayers, someone will

speak or give a sermon after the prayers. A. Q. It's before the prayer. I am sorry, before the prayer. Thank you. And people

like Ibrahim al Iraqi spoke often at the communal, before the communal prayers on Friday. A. Q. Yes. Abu Hajer al Iraqi, he also spoke sometimes on Fridays

before the communal prayers. A. Q. Yes. But they didn't always speak at the same mosque, they

often spoke at different mosques around town, is that right?

25

A.

Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1469

12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. And the mosques in Khartoum were mosques that were open to

the public and to different people and different groups. A. Q. Yes. So at these mosques there weren't just Al Qaeda people,

there were Al Qaeda people and other people as well. A. Q. A. Q. Yes. It was a public forum. It's public, yes. When Abu Hajer spoke, he usually spoke about ethics and

morals and not politics, is that correct? A. Q. Generally, yes. Members of Al Qaeda were free to go to any particular

mosque for their Friday communal prayers, isn't that right? A. Q. Yes. So there was no requirement, say, today Abu Hajer is There

speaking at this mosque, we all must go to this mosque. was nothing like that. A. Q. No.

When you took a bayat with Al Qaeda, did you have a piece

of paper to read or a document to read? A. Q. Yes, it was a paper, yes. Did you also discuss that with people, members of Al

Qaeda? A. At that time maybe.

25

Q.

Do you recall that one of the conditions of being a member SOUTHERN DISTRICT REPORTERS (212) 805-0300 1470

12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Al Qaeda was that you could not join any other Islamic organizations? A. Q. A. Q. You can do it only if you leave that group. That's correct. Yes. So if you were from another group and you joined Al Qaeda,

you had to leave the group that you belonged to? A. Q. Because you can't work under two bosses. And because the different bosses of the different groups

often had very different philosophies, isn't that right? A. Q. Sometimes, yes. And if you wanted to join another group you would have to

seek permission to leave Al Qaeda. A. Q. Yes. Do you remember when you were asked by the government that

if you violated your bayat when you decided not to go to Afghanistan? A. Q. Yes. And do you remember saying that you did because what was

asked of you was not unIslamic? A. Q. Excuse me. Can you repeat again.

Do you remember that you answered that yes, you did break

your bayat because what they asked you to do, to go to Afghanistan, was normal and not unIslamic? A. No. I think you -- I didn't say that. I said I have been

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1471 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asked to go to Afghanistan and they didn't agree, and it's normally a breaking of the bayat and it's a sin, but it's not Islamic. Q. But part of your bayat was that the leadership of Al Qaeda

would not ask you to do something that was not Islamic, isn't that correct? A. Q. Yes. And the determination of what is not Islamic or unIslamic

falls on the individual Sunni Muslim, doesn't it? A. Q. A. You want to know what is Islamic or not Islamic. Yes. If he ask me, for example, to do something that is against

Islam, in this way I should disobey him. Q. And it is your responsibility as a Sunni Muslim to make

that determination as to whether what you were asked is Islamic or not Islamic. A. If you know what you are doing it's OK. If you don't

know, you have to ask. Q. A. Q. You were supposed to ultimately make the decision. Yes. And you are allowed to speak to other scholars to help you

make a decision? A. Q. Yes. You should speak to them, yes.

In fact, it is so strong for you to make that decision

that you have a religious obligation to always make a

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1472 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determination of what you are asked to do is, whether it is Islamic or nonIslamic. A. Q. You should know, yes. And if you determined that you were being asked to do

something nonIslamic, you can say no without violating your bayat; isn't that right? A. I can say no, yes. MR. SCHMIDT: May I have one moment, your Honor? Thank you.

I have no further questions. THE COURT: MR. WILFORD: THE COURT: MR. WILFORD: THE COURT: MR. WILFORD: CROSS-EXAMINATION BY MR. WILFORD: Q. A. Q. A. Q. Good afternoon, Mr. Kherchtou. Good afternoon. Who else?

I have questions, your Honor. Mr. Wilford for the defendant Odeh. May I inquire, your Honor? Yes, please. Thank you.

Is that the correct pronunciation of your name? Yes. You met, isn't it correct, with American officials several

times? A. Q. Yes. Isn't it a fact that at these meetings, although you speak

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1473 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. English, you used an Arabic interpreter; isn't that correct? A. Q. Yes. And isn't it a fact that you used an Arabic interpreter to

ensure that everything you were being asked and everything you were saying was clearly and correctly understood? A. Yes. MR. WILFORD: Your Honor, I am going to ask that the

remainder of my questions and the witness's answers be interpreted through the interpreter so that we have a clear understanding what is being asked and answered. THE COURT: Any objection? No objection.

MR. FITZGERALD: THE COURT:

Very well.

(Through the interpreter) Sir, do you know who Dr. Fadl is? Yes, I do. Are you familiar with his religious philosophy? I heard about it. While you were in Afghanistan, did you have any

interaction with Dr. Fadl or his lectures? THE COURT: MR. WILFORD: Spell the name. I am sorry, your Honor. F-A-D-L.

I heard of him, but I never attended any of his lectures. Moving along, you lived in the Sudan when Al Qaeda moved

from Afghanistan, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300

1474 12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. The answer is yes. You also lived in Kenya for several years, isn't that a

fact? A. Q. A. Q. Yes. You never lived or visited Somalia, isn't that correct? Yes. When you lived in Nairobi, you lived in Kenya, you lived

in the city of Nairobi, isn't that correct? A. Q. A. Q. Yes. Nairobi is a big city, right? Yes. You are familiar with the major thoroughfares and Nairobi? THE INTERPRETER: I beg your pardon.

You are familiar with the streets, the major thoroughfares

in Nairobi? A. Q. A. Q. Yes. You are familiar with Moi Avenue, isn't that correct? Yes. Isn't it a fact that there are parts of Moi Avenue that

are shopping districts? THE INTERPRETER: Shopping districts. Yes. Where people purchase clothes? Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1475 That are?

12qkbin5 Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Isn't it a fact that the American Embassy is also on Moi

Avenue? A. Q. At the end of it. A long way away from the shopping area, isn't that

correct? THE INTERPRETER: A long --

Way away from the shopping area. There are some commercial stores which are close to the

embassy. Q. But the major shopping area is a distance away from the

embassy, isn't that correct? A. Q. A. Q. A. Q. Yes. You never lived in the Kenyan countryside, did you? No. Have you ever been to Witu, Kenya? No. All of the places that you lived in in Kenya had in fact W-I-T-U.

running water, isn't that correct? A. Q. Yes. And all the places that you lived in in Kenya had

electricity, isn't that correct? A. Q. Yes. And all the places that you lived in in Kenya had indoor

toilet facilities, isn't that correct? A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1476 12qkbin5

Kherchtou - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. Q. And, sir, the places that you lived in while you were

living in Kenya also had telephones, isn't that correct? A. Q. Not all of it. Not every place, but they had the capacity to have a

telephone, isn't that correct? THE INTERPRETER: Beg your pardon?

They had the capacity to have a telephone, isn't that

correct? A. Q. Yes. While you were living in Kenya for several years -- it was

in fact several years that you lived there, right? A. Q. That's true. While you were living there, you had an opportunity to

learn about the Kenyan police, isn't that correct? THE INTERPRETER: Police. Yes. In fact, you learned about the Kenyan police firsthand, The Kenyan?

isn't that correct? A. Q. Yes. Sir, would it be fair to say that based upon your time

spent living in Kenya and your own personal experience with the Kenyan police, that the Kenyan police enjoy a well-deserved reputation as brutal thugs or -MR. FITZGERALD: Objection.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1477 12qkbin5 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

THE COURT:

Yes, sustained.

You did, sir, have an opportunity to bribe the Kenyan

police yourself? A. Q. Through an attorney. Right. You didn't pay the bribe personally to a

particular police officer, you went to the lawyer, the lawyer gave the money to the police and in turn you got something that you wanted; isn't that correct? A. Q. A. Q. Yes. You got one of your brothers out of jail, right? Yes. Isn't it a fact that when the Kenyan police came to the I am sorry.

place where you were living and searched it, they stole money from you, right? A. Q. Yes. When you were arrested in Kenya -- you did get arrested in

Kenya, isn't that correct? A. Q. A. Q. Yes. How long did you remain in jail? Almost 11 days. The instance when you bribed the Kenyan officials or

participated in bribing Kenyan officials, three of your brothers were actually arrested at that point, right? A. Q. Yes. Could you please tell us who they were, those three people SOUTHERN DISTRICT REPORTERS (212) 805-0300 1478 12qkbin5 Kherchtou - cross

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that were arrested. A. Q. Abdel Hameed, Khalid Fawwaz, and Abu Ammar. Hamad was released rather quickly, once you paid the

bribe, isn't that correct? THE INTERPRETER: Q. A. Q. A. Q. Hamad. Hamad and Abdel Hameed. How long was he detained before he was released? Almost 14 days. The second person that was released, how long was he held Who?

before he was released? A. Q. A. Between two and four months. And the third person was held how long? The first two were released together, and it's the third

one that remained between two to four months. Q. And that's despite the fact that you paid the bribe,

right? A. Q. The bribe was for Abdel Hameed and Khalid Fawwaz only. Sir, when you were involved in this process of paying a

bribe, isn't it a fact that you went to the precinct, the police station, with a lawyer? A. We went with him later on, not the day that we paid the

bribe. Q. I understand that, but you did in fact go to the precinct

with an attorney, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1479 12qkbin5 Kherchtou - cross

A.

Yes.

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

And the reason that you went, even contacted an attorney

and went to the precinct with an attorney is because you received a phone call from one of your brothers informing you that they had been arrested; isn't that correct? A. I went with Khalid Fawwaz to the jail to ask about Abdul

Hameed, and there they arrested Khalid Fawwaz. Q. You went to the jail because you received a phone call

from the first person who was arrested, telling you that they had been arrested; isn't that correct? A. Q. A. Q. A. No. Tell me what happened, sir. Through her? Yes, please. Initially when I first learned that Abdul Hameed was

arrested -Q. Can I just stop you right there for a moment. How did you

learn that Hameed had been arrested? A. Q. A. Q. A. Q. A. From the neighbors. From the neighbors. Yes. You never received a phone call? Never. Did you make a phone call concerning the arrest? I contacted by telephone Khalid Fawwaz to tell him about SOUTHERN DISTRICT REPORTERS (212) 805-0300 1480 12qkbin5 Kherchtou - cross

the arrest and I couldn't find him initially.

Then later on

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

when I found him, I told him about the arrest. Q. A. When did you contact the lawyer? The following day when I went with Khalid Fawwaz to the

jail, or to the prison, and he was arrested, he told me to contact a lawyer. Q. By the way, what was the amount of this bribe that was

paid? A. Q. $3,000. Sir, I believe that you told the jury that you were raised

in the Muslim faith, is that correct? A. Q. Yes. And it would be fair to say that you are familiar with the

traditional greeting that one Muslim brother would give to another upon seeing him, is that correct? A. Q. Yes. Would it be fair to say, sir, that the greeting is in fact

one where you embrace each other, is that correct? A. Q. It depends. It depends on what country you are from.

Has it been your experience while you were a member of Al

Qaeda for other members of Al Qaeda, for other brothers of Al Qaeda to greet each other in an embrace? A. Q. Sometimes yes, especially if he has come back from a trip. Especially if it is somebody that you knew well, isn't

that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1481 12qkbin5 Kherchtou - cross

1 2

A. Q.

Yes. That embrace would involve a hug, am I correct?

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. And it also would involve from the left side of the head,

right, putting your head on the left side and on the right side, is that correct, with the cheeks touching; isn't that correct? A. Q. Sometimes not always. Not always, but in these instances that I am talking

about, it would be an embrace and a hug, and three times on the left side, three times on the right side; is that not correct? MR. FITZGERALD: THE COURT: A. Sometimes. Objection to form.

Overruled.

It depends on what country you are from.

Other times you just shake hands. Q. I am talking about those times when you do the embrace.

Is it as I have described? A. Q. It could be. Possible.

Sir, have you ever greeted one of your brothers in that

fashion? A. Q. Yes. In 1991, you traveled to Afghanistan, is that correct? THE INTERPRETER: Q. Pardon me.

In 1991 you traveled to Afghanistan, is that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1482

12qkbin5 Kherchtou - cross 1 2 A. Q. Correct. It was your understanding as a Muslim that it was your

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

obligation and duty to go to Afghanistan and participate in the fight against the Soviets. A. Q. Yes. Sir, when you arrived in Afghanistan, isn't it a fact that

all of your travel documents were taken from you? A. Nobody took it from me by force. I handed it over to an

office. Q. It was a requirement that you surrender your travel

documents, isn't that correct? A. Q. A. Q. Just so that it would not get lost in the camp. Sir, did you get your travel documents back? Yes. And you didn't get them back until you left Afghanistan,

isn't that correct? A. Q. A. Almost. Almost correct? I don't quite recall exactly when I got back my travel

documents. Q. So it's not almost, you just don't know when you got them

back. A. Q. Yes. Sir, you said that you knew this gentleman, Mohamed Odeh,

from Afghanistan, isn't that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1483 12qkbin5 Kherchtou - cross

1 2 3

A. Q.

Yes. And you know Mr. Odeh initially from the time that you

spent in the Khost area camps, isn't that correct?

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

In which camp? Didn't you tell the jury that it was from the al Farouq Isn't that what you told the jury?

calm? A. Q.

Yes. Isn't it a fact that you had traveled to Afghanistan with

a veterinarian who Mr. Fitzgerald referred to as the animal doctor; isn't that correct? A. Q. Yes. Sir, isn't it a fact that when your friend the

veterinarian left al Farouq camp, that Mohamed Odeh became medical officer for that camp? A. Q. Would you kindly repeat the question again. Certainly. Isn't it a fact, sir, that when your friend

the veterinarian left al Farouq camp, that Mohamed Odeh became the medical officer for that camp? A. Q. I do not recall that he became the doctor. Not the doctor, but he was the person who was responsible

for assisting people medically, isn't that correct? A. Q. A. Q. I do not recall, but it could very well be so. That's something that you may not know, right? That's true, I do not know. Sir, when you went to Afghanistan, how many years did you SOUTHERN DISTRICT REPORTERS (212) 805-0300 1484 12qkbin5 Kherchtou - cross

1 2 3

remain in Afghanistan? A. Q. It could very well be '91 and '92. And, sir, when did you first learn of Al Qaeda?

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

I learned about it in the camp, but after I graduate from

the Farouq. Q. A. That was sometime in mid-to late 1992, isn't that correct? It was right after I finished my training and it could

have very well been in April 1992. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1485 12qkbin5 Kherchtou - cross 1 2 3 4 recess. MR. WILFORD: to break, your Honor. THE COURT: Very well, we will take our midafternoon Thank you. This is a convenient point

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(Jury excused) THE COURT: I have been receiving notes from the jury

thanking for my courtesy and consideration and their somewhat improved living conditions. to have been resolved. So the crisis of last week seems

We will take a five-minute recess.

If you want to make this a prayer break, we will make this a prayer break. (Recess) (Witness resumed) (Jury present) THE COURT: MR. WILFORD: BY MR. WILFORD: Q. Mr. Kherchtou, I believe when we took the break we were Mr. Wilford, you may continue. Thank you, your Honor.

discussing when it was that you first went to Afghanistan, isn't that correct? A. Q. Yes. Sir, you informed the jury that you first learned about Al

Qaeda when you had completed your time in the camp around April of 1992, is that correct? A. April 1991. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1486 12qkbin5 Kherchtou - cross

1 2 3 4

Q. A. Q. A.

1991. Correct. You are positive about that date? Exactly.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Isn't it a fact, sir, that at the time that you learned

about Al Qaeda you were informed of the full name of Al Qaeda; isn't that correct? A. When I took my bayat, they explained to me what is the Al

Qaeda and all the details pertaining to it. Q. A. Q. A. Q. Did they tell you the full name of Al Qaeda? Up till now I only know that it is the Qaeda. And that means the base. Yes. Sir, when you found out about Al Qaeda in 1991, isn't it a

fact that members of Al Qaeda had already gone to Somalia? A. Q. A. Q. At that time I did not know that. You found out later though, isn't that correct? Yes. And you knew that they had gone there sometime in 1991,

isn't that correct? A. Q. Yes. Isn't it also a fact, sir, that it is your understanding

that the members of Al Qaeda who went to Somalia went there with religious justification? A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 1487 12qkbin5 Kherchtou - cross

1 2 3 4 5

Q.

Sir, I just want to digress for one moment.

You were

asked some questions by Mr. Schmidt concerning the Shiite and Sunni Muslims, isn't that correct? A. Q. Yes. Sir, would it be fair to say that the difference between Do you remember those?

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Sunni Muslim and the Shiite Muslims is fundamental? A. Q. A. There is a difference in certain things. And it is a very deep difference, isn't that correct? It's very difficult to understand -- it will be very

difficult for you to understand the difference. Q. I wouldn't understand it because I'm not Muslim, is that

correct? A. Q. Correct. But it would be fair to say that even though I'm not

Muslim, that you can tell this jury that there are some very basic differences between Sunni and Shiite Muslims. A. Q. A. Q. A. Possibly I can explain. You said possibly you can explain? Yes, I can. Would you like to have the opportunity to explain? The difference between the Sunni and the Shiite is the It's the prophesy that came down, descended from

prophesy. heaven. Q. A.

Thank you. Excuse me. It wasn't finished yet.

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1488 12qkbin5 Kherchtou - cross 1 2 3 4 5 Q. A. Q. I am sorry. It's a long story. Do you want me to go on? There are differences in

No, I don't want the long story.

the beliefs of the Sunni and the Shiite and they are very difficult for them to get along because of those differences;

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is that a fair statement? A. Q. That is true. When you left Afghanistan, you went to the Sudan with

other members of Al Qaeda including Bin Laden, is that correct? A. When I left Afghanistan I went to Kenya, and from Kenya to

Sudan. Q. A. Q. So you went to Kenya first? Yes. You lived in Kenya for two years and then you went to the

Sudan? A. No. I have mentioned before that I went to Kenya, I

stayed there for a short period of time, and from there I went on to the Sudan. Q. And when you finally arrived in the Sudan, you were there

with Al Qaeda, Bin Laden, and the other members of Al Qaeda, isn't that correct? A. Q. Yes. Sir, would it be fair to say that Bin Laden as a person

almost became a symbol, an entity in the Arab world, in the SOUTHERN DISTRICT REPORTERS (212) 805-0300 1489 12qkbin5 Kherchtou - cross

1 2 3 4 5 6

Muslim world?

Would that be fair to say? Can we have a time frame?

MR. FITZGERALD: MR. WILFORD: Q.

Certainly.

By the time you had arrived in the Sudan, by the time Bin

Laden arrived in the Sudan, would it be fair to say that he was a symbol to the Muslim world?

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

After he had left Sudan, he became a symbol to the Muslim

world. Q. A. Q. Not when he was in the Sudan? When he was in Sudan, not that many people heard of him. Sir, isn't it a fact that Bin Laden, as far as you knew,

entered into agreements with a number of organizations and persons that were personal to him and had nothing to do with the membership of Al Qaeda? THE INTERPRETER: Excuse me, can you kindly repeat,

because it's a long sentence to remember without having a notebook. MR. WILFORD: Would you like some paper? No, it's OK.

THE INTERPRETER: Q.

Isn't it a fact that Bin Laden entered into agreements

with a number of organizations and persons that were personal to him and had nothing to do with the membership of Al Qaeda? A. Q. This happened after he had gone to Afghanistan. Isn't it a fact, sir, that the goals of Bin Laden and the

goals of the membership of Al Qaeda were not synonymous at all SOUTHERN DISTRICT REPORTERS (212) 805-0300 1490 12qkbin5 Kherchtou - cross

1 2 3 4 5 6

times? A. Q. That is true. Would it be fair to say that the goals of Bin Laden

evolved in a different direction over time? A. Q. That is true. And would it be fair, sir, to say that the membership of

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Al Qaeda did not share those views as they evolved in a more and more radical direction? A. Q. At the beginning, yes. Isn't it a fact that members of Al Qaeda openly disagreed

with Bin Laden as well as each other? A. Sometimes, yes. (Continued on next page)

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1491 12Q1BIN6 Kherchtou - cross/Wilford 1 2 3 4 5 6 7 again? Q. Yes. When these disagreements occurred, isn't it a fact Q. Now, when these disagreements occurred they were based

upon whether or not Bin Laden's actions or decisions were Islamically correct. Isn't that a fact? Can you kindly repeat the question,

THE INTERPRETER:

that they were based upon whether or not the actions and

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

decisions of Bin Laden were determined to be Islamically correct? A. yes. Q. For instance, the killing of children, women and innocent These decisions were, it is not in accordance with Islam,

civilians is not Islamically correct, isn't that a fact? A. Q. That is correct. And if Bin Laden or anyone else issued a fatwa that

involved the killing of women, children and innocent civilians you wouldn't be a part of that. A. Q. Is that correct?

That's true, I would not agree with. And there were many other members of al Qaeda who would

not have agreed to participate or accepted any such fatwas? A. Everybody would look into his faith. If one believes that

this is not in accordance with Islam, so everyone depends on his faith. Q. Well, sir, I understand that, but I want to ask you again.

Isn't it a fact that there were a lot of members of al Qaeda SOUTHERN DISTRICT REPORTERS (212) 805-0300 1492 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7

who did not accept any fatwa that directed the killing of innocent women, children and civilians? MR. FITZGERALD: THE COURT: Q. A. Objection to foundation, your Honor.

Ask him if he knows.

Do you know that to be true, sir? This fatwa appeared or came about after they went to The number of the people who were present in

Afghanistan.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Sudan was, very, very limited, very, very small.

So that was

not an indication that they were against Bin Laden or his fatwas. Q. A. I'm sorry. I didn't hear the last part.

This was not an indication that they were against Bin

Laden or his fatwas. Q. Sir, isn't it a fact that when you were being questioned

by American agents you told them that there were many members of al Qaeda who would not volunteer to follow fatwa that involved the killing of innocent civilians. fact? A. I said they would not be in agreement with this fatwa Isn't that a

because this is against Islam. Q. A. Q. A. Q. They would not? Yes. There came a time did it not that you left al Qaeda? Yes. When you were a part of al Qaeda you knew, however, that SOUTHERN DISTRICT REPORTERS (212) 805-0300 1493 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8

secrecy was an integral part of al Qaeda? A. Q. Correct. And isn't it a fact that people in al Qaeda wouldn't know

what other people who were members of al Qaeda were doing, although they were all members of al Qaeda? A. Q. Sometimes. Isn't it a fact that there is or was no hierarchical

structure to al Qaeda?

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q. A. Q.

There was, there was. I'm sorry? There was hierarchy in al Qaeda. There was? Yes. Did you ever tell the authorities that you were speaking

to that there was none? A. Q. A. What do you mean by hierarchy? Somebody at the top, somebody at the bottom. Initially when one saw the hierarchy, one just kept quiet

because one was serving God. Q. Now, sir, isn't it a fact that Mr. Odeh engaged in the

fishing business in Kenya to support himself? MR. FITZGERALD: THE COURT: Q. Yes. Objection, foundation. Does he know.

Well, sir, is it a fact that that's what you told the

American authorities when you were interviewed that Mr. Odeh SOUTHERN DISTRICT REPORTERS (212) 805-0300 1494 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8

engage in the fishing business in Kenya to support himself? A. Q. To support himself and others in Mombasa. And it's the obligation of one Muslim to help another

Muslim, isn't that correct? A. Q. Correct. Now, sir, did you tell the jury that you left al Qaeda

because of refusal to pay for medical bills that had been incurred by your wife?

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Yes. Sir, isn't it a fact that you signed a document declaring

that you had left al Qaeda? A. It was a document stating that I got all my rights from al

Qaeda and that they owe me nothing. Q. Isn't it a fact that after you signed that document you

still maintained contact with people who were members of al Qaeda? A. Correct, because a friendship between myself and members

of al Qaeda continued. Q. And isn't it a fact that when you traveled to Kenya from

the Sudan that you met with members of al Qaeda in June of 1998? A. Q. A. Q. I met only with Harun. Harun was a member of al Qaeda, isn't that correct? Yes, Harun, yes, is a member of al Qaeda. And you met with him to talk with him, isn't that correct? SOUTHERN DISTRICT REPORTERS (212) 805-0300 1495 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9

A. Q. A. Q.

Yes. Did you meet with Kawhil at that time? Yes. And isn't it a fact that when you returned to Kenya in

August of 1998 you sought to meet with members of al Qaeda? THE INTERPRETER: Q. A. Q. '8. August of 1998. 199O?

Saw or visited with? You were trying to find a room, isn't that correct?

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

Correct. And you did in fact meet with a member of al Qaeda on the

very day that the United States embassy was bombed, isn't that correct? A. Q. A. Q. No, I did not meet anybody. You didn't meet with anybody? Met somebody from al Quaeda? Well, who did you meet with on the day that the United

States embassy was bombed? A. Q. A. Q. Ahmed Sawil came to me at the hotel. And Sawil is an associate of al Qaeda, isn't that correct? No, he's not a member of al Qaeda. I didn't ask if he was a member. I asked if he was an

associate. A. Q.

Did he do things with members of al Qaeda?

Yes, he does have friends in al Qaeda. Didn't you call Harun on the day that the embassy was SOUTHERN DISTRICT REPORTERS (212) 805-0300 1496

12Q1BIN6 Kherchtou - cross/Wilford 1 2 3 4 5 6 7 8 9 bombed? A. The evening of the, the evening. It happened on Thursday

and the embassy was bombed on Friday. Q. A. Q. So you called the night before? Yes. When you met with Sawil on the day of the bombing you were

very afraid, weren't you? A. Q. Yes, that something normal. And you weren't afraid because you had done anything

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

wrong, were you? A. That's correct, but my presence in this country was drive

me to be afraid. Q. Well, you didn't know about the bombing before it

occurred, did you? A. Q. A. Q. A. Q. A. Q. If I had known I would not have gone there. So the answer is no then. Yes. And you didn't participate in the bombing, did you? Yes. Yet you were still afraid, isn't that correct? Correct. And isn't it a fact that the reason that you were afraid

is that you believed your very association with al Qaeda members, even though you yourself were no longer a member, was enough to cast suspicion on you such that you would be subject SOUTHERN DISTRICT REPORTERS (212) 805-0300 1497 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9 10

to arrest or worse at the hands of the Kenya authorities? A. Q. That is true. Now, sir, when you were arrested and detained in Kenya

yourself, and you spoke with a member of a foreign service isn't that correct that was neither Kenyan or American, isn't that correct? THE INTERPRETER: American? MR. WILFORD: A. Correct. Yes. That was neither Kenyan nor

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

And, sir, when you spoke with that individual isn't it a

fact that that interview was recorded? A. Q. Yes, it was recorded, that is true. You saw the tape recorder sitting right in front of you as

you were talking to this individual, isn't that correct? A. Q. Yes. Now, sir, when you were being questioned at a later time

by American officials this questioning took place over a period of days, if not weeks, isn't that correct? A. Q. Almost two weeks. And during that two-week time period while you were being

questioned, hypothetical questions were being posed to you, isn't that correct? A. Q. A lot of questions. Well, they were asking you a lot of questions that were SOUTHERN DISTRICT REPORTERS (212) 805-0300 1498 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9 10

asking you to suppose a particular fact, and then give an answer. A. Isn't that correct?

The questions were many, many questions and they were not They were concentrating on the incident and the

hypothetical.

events and facts themselves. Q. Well, were you asked a question, could Bin Laden have been Wasn't that a hypothetical

involved in a bombing in Yemen? question, sir? THE COURT: MR. WILFORD:

Oh, no, let's not. Okay, I'll move on, Judge, no problem.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. A.

Sir, you were asked that question, though, weren't you? The question that was posed that could not or hypothetical

is, did you hear anything special about the incident in Yemen. Q. Didn't they go further and ask you, not only did you hear

anything, but could Bin Laden have been involved? MR. FITZGERALD: THE COURT: question. A. I don't precisely remember the questions. I believe that Objection, your Honor. Was he asked that

No, I'll allow it.

they have the questions written down. exact question. Q.

I don't recall the

By the way, when you were speaking with the Americans did

you see any tape recorder? A. Q. No. I want to turn, if I might, back to when you were a member SOUTHERN DISTRICT REPORTERS (212) 805-0300 1499 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9 10 11

of al Qaeda and living in Kenya. There was a time that Abu Hafs, Abu al Amakkee, Abu al Amriki, Anas al Liby -THE INTERPRETER: Excuse me. There is nobody by the

name of Abu Amriki according to him. Q. A. Ali Mohammed. Abu Amriki is the father of the American. There is nobody

by that name. Q. Okay. Then let's do it this way. There was a time when

five people came to visit you while you had an apartment in Nairobi, right?

12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

Five people came to Nairobi, not five of them came to

visit me at one time. Q. Okay, good. Could you tell the jury the other four people

besides Abu Hafs who came to Nairobi? A. Abu half el Masry, Abu Amriki, Anas al Liby, Hamza al

Liby. Q. Now, of those five people three of them came to your

apartment and developed pictures during the day, isn't that correct? A. Q. A. Q. Yes. Could you tell the jury who these three people were? Abu Al Amriki, Anas al Liby, Hamza al Liby. Did Abu Hafs and Fadal Makkee ever come to your apartment? THE INTERPRETER: Came to?

SOUTHERN DISTRICT REPORTERS (212) 805-0300 1500 12Q1BIN6 Kherchtou - cross/Wilford 1 2 3 4 5 6 7 8 9 10 11 A. Q. MR. WILFORD: His apartment.

They came at different times. But the fact is that they came to your apartment during Isn't that

the day and they stayed at a hotel at night. correct? A. Q.

They came and it was lunchtime, we had lunch together. And they didn't just have a lunch, right? They developed

pictures in your apartment. MR. FITZGERALD: THE COURT: MR. WILFORD: Yes.

Isn't that correct? Specify who?

Objection to form.

I'm sorry.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: about now. Q.

It's not clear who you're questioning

The three people who did the surveillance came to your

apartment in the daytime, they didn't just have lunch, they developed the pictures in your apartment, isn't that correct? A. You asked me before Abu Hafs Amriki and Abu al Amriki

initially and I told you, yes they came and they had, we, they had lunch with me. And then you asked me about, and you asked

me prior to that about the three others. Q. So now, sir, I'm asking you about the three people who

took pictures and had developed them in your apartment. That's what they did, isn't that correct? A. Q. That's correct. And when they finished developing the pictures they went SOUTHERN DISTRICT REPORTERS (212) 805-0300 1501 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9 10 11 12

to a hotel and that's where they stayed, isn't that correct? A. Q. That is correct. And that was where they slept of night? No one slept in

your apartment. A. Q. A.

They stayed in a hotel, isn't that correct?

For one reason, there was no space. For whatever reason, they stayed in a hotel? Yes. MR. WILFORD: THE COURT: Thank you. All right. Nothing further. We'll call it a day then.

We're adjourned until tomorrow morning. (Continued on next page)

13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1502 12Q1BIN6 Kherchtou - cross/Wilford 1 2 3 4 5 6 7 8 9 10 11 12 al-Arabi. (Jury not present) THE COURT: Mr. Fitzgerald, you sent the Court a copy

of a letter dated February 22, and counsel, with respect to articles you plan to offer and requesting that if there were any objections you'd be advised by Friday. any objections? MR. FITZGERALD: I've sent a lot of letters, Judge. Did you receive

Was it signed by my name or my colleague's name? MR. KARAS: Relating to articles appearing in Al-Quds We

No, your Honor, there have been no objections.

have the stipulation ready to go on the February 98. THE COURT: All right.

13 14 15 16 17 18 19 20 21 22 23 24 25

MR. COHN:

I have a couple of motions in limine which

are not rocket science, but we should take up that morning whenever that is. THE COURT: I understand you want to confer with your

client and the Marshal permitted you to confer with your client. MR. COHN: THE COURT: I just wanted to advise the Court. Anything that I should take up now? One second.

MR. FITZGERALD: MR. KARAS:

Your Honor, the only thing that we don't

need to take up now but we wanted to advise the Court we have not been able to work out a stipulation with respect to a witness that will authenticate the documents taken from El SOUTHERN DISTRICT REPORTERS (212) 805-0300 1503 12Q1BIN6 Kherchtou - cross/Wilford

1 2 3 4 5 6 7 8 9 10 11 12 13

Hage's computer.

Depending on who that witness is going to be

we may be making an in limine motion as soon as we determine that, which we hope to do at the end of today. of course counsel and the Court. THE COURT: MR. SCHMIDT: Very well. I'm waiting for information from the We will advise

government to make a determination if I am going to make in limine motion as to one of the documents the government is going to produce. THE COURT: All right. Great expectations, but We're

nothing that is presently ripe for ajudication. adjourned until tomorrow.

(Adjourned to 10 a.m., Tuesday, February 27, 2001)

14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 1504 12Q1BIN6 Kherchtou - cross/Wilford 1 2 3 4 5 6 7 8 9 10 11 12 13 Exhibit No. Witness INDEX OF EXAMINATION D X RD RX

L'HOUSSAINE KHERCHTOU...1348 ..................................1349 DEFENDANT EXHIBITS Received

D ..........................................1443

14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300

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