UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v. S(7) 98 Cr. 1023
USAMA BIN LADEN, et al.,
Defendants.

New York, N.Y.
October 18, 2001
9:50 a.m.
Before:
HON. LEONARD B. SAND,
District Judge


APPEARANCES
MARY JO WHITE
United States Attorney for the
Southern District of New York
BY: PATRICK FITZGERALD
KENNETH KARAS
PAUL BUTLER
JOHN M. McENANY
Assistant United States Attorneys

SAM A. SCHMIDT
JOSHUA DRATEL
KRISTIAN K. LARSEN
MARSHALL MINTZ
Attorneys for defendant Wadih El Hage
ANTHONY L. RICCO
EDWARD D. WILFORD
CARL J. HERMAN
SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
FREDRICK H. COHN
DAVID P. BAUGH
Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
DAVID STERN
DAVID RUHNKE
Attorneys for defendant Khalfan Khamis Mohamed


(Pages 81 to 83 filed under seal)
(In open court)
DEPUTY CLERK: United States of America v. Khalfan
Khamis Mohamed, Mohamed Rashed Daoud Al-'Owhali, Wadih El Hageand Mohamed Sadeek Odeh.
Is the government ready?
MR. KARAS: Yes, the government is ready. Good morning, your Honor.
DEPUTY CLERK: Ready for defendant Khalfan Khamis Mohamed?
MR. RUHNKE: Ready.
DEPUTY CLERK: For defendant Al-'Owhali, ready?
MR. COHN: Ready.
DEPUTY CLERK: For defendant El Hage?
MR. SCHMIDT: Ready.
DEPUTY CLERK: For defendant Mohamed Odeh?
MR. RICCO: Yes, your Honor.
THE COURT: I understand that there are some victim witnesses who wish to be heard at this sentencing proceeding and we will hear from them. I understand the first is Susan Hirsch.
Ms. Hirsch, you wish to make a statement?
MS. HIRSCH: Yes, thank you.
THE COURT: You may proceed and do that.
MS. HIRSCH: Thank you.

Thank you for the opportunity, Judge Sand, to appear before you to tell you about the impact of these terrible crimes on me and on those around me. Up to now, because this was a capital case, my ethical beliefs precluded me from telling my story to the court. So now I appreciate the chance to let you know about my loss, my grief, and the devastating impact on my life as a result of the actions of those convicted and of others not present today.
On a beautiful sunny morning, just ten days shy of coming with my husband to the U.S. to start a new life here together, I was in the embassy in Dar es Salaam when the bomb exploded. I was near a back exit. I went downstairs and out and ran away from the building. I was not physically injured. And then, as I realized where the bomb went off, my nightmare started. My husband, Abdurahman Abdulla, a Kenyan citizen, had been standing very close to the explosion, and eventually, after frantic searching through hospitals, I learned that he was killed. I want to tell you a few things about my husband so you will understand the impact of his loss on me and on others who loved him and depended on him. He was well-known in Mombasa, Kenya and in Malindi, where he lived. His nickname was Jamal, which means beautiful. Jamal had an amazing spirit and energy. He was known for his humor, his humility, and his patience. Jamal was a deeply religious Muslim, in the most admirable sense. His life was guided by the ideals of kindness, charity, faith, mercy and respect for life. Jamal's death has been a terrible tragedy for his family and community. Permit me to speak on their behalf briefly, because they are in Kenya and are unable to be here. The youngest of nine siblings, at 38, Jamal was the leader of the family. He was the motivator, the shoulder on which his elder siblings leaned. He was single-handedly holding the family above poverty, and with his death, the family is in very difficult circumstances. Jamal was a loving father to three sons, Ali, Mohamed and Ichbal. The loss of his guidance is especially difficult for them.
In his community, Jamal was known as someone who could solve problems and heal troubles. Everyone treated Jamal as wise beyond his years. Since his death, so many people that he used to treat come to his family and to me to say that there is no one to help with marital problems, mental illness and spiritual confusion. Having lost a trusted counselor, his community is tremendously diminished by these crimes, and my American family, who had grown to love Jamal, was crushed by his death. Let me mention something else that was lost with Jamal's death. Our relationship crossed continents, cultures, religions and languages. We shared a deep commitment to bridging differences and to making productive connections between our families and communities. We started charitable projects that drew on the generosities of Americans and inspired the hopes of Kenyans. By shadowing our efforts and efforts like ours to foster understanding, these acts of violence have promoted a terribly dangerous and distorted view of Islam.
I want to say a few things about the impact on me personally. Like other bomb victims, I have traumatic stress syndrome, which means that I cannot depend on myself in situations of shock or stress, even like this one today. That is not the person I used to be. I have financial difficulties, as I try to help my husband's family, particularly his sons, whom I am determined will receive good educations.
I choose not to share with you now and with the public what it means to me emotionally to have lost my husband. The pain and emptiness that I feel is both deeply private and truly indescribable. But also I need not tell you, because I have come to believe that there is nothing that you, as the judge, or the state could do to these individuals that would sooth the sorrow that haunts me, having lost Jamal.
As a grieving widow, I look elsewhere for my solace, but as a citizen, I look to you and the state for justice. The impact of this crime on me will be lessened if I know that these individuals will be prevented from injuring others and will lose their liberty as an appropriate punishment for an appalling and devastating crime. Thank you for this opportunity.
THE COURT: Thank you ma'am. I'm sorry. Howard Kavaler.
MR. KAVALER: Your Honor, three years, two months and eleven days ago, I lost my wife Prabhi, the love of my life and mother of my daughters, in the despicable attack on our embassy in Nairobi. For the past three years, two months and eleven days, I have had to live with recurring flashbacks of the bombing and my vain attempts to locate my wife's remains.
The clouds of dust, the dangling wires, the invisible cries for help that were muffled by mounds of concrete and twisted steel are still front and center in my mind with a degree of clarity that has not attenuated with the passage of time. In fact, the carnage of the 11th of September has only served to exacerbate these nightmarish memories. It is very difficult for me to articulate in a dispassionate manner what it has been like to be deprived of the companionship of my wife of 16 years and to raise two young girls as a single father in the context of such a horrific tragedy.
There was no one to assist me as I comforted Maya, my eight-year-old daughter, who cried all night last spring because her mother would not be present the next day to hear her sing at a school talent show. Tara, my 13-year-old, went to her first coed party without the loving encouragement and maternal advice that only Prabhi could have provided. In a letter to your Honor, you may recall that Tara wrote about her mother, and I quote: "I miss the time we spent together, I miss that she loved me like no one else could, and I miss her helping me with things that were hard. My heart hurts every day. I hope it will go away. A kid's heart shouldn't hurt every day. A kid shouldn't have to miss her mother every day."
As much as I try to be both a father and a mother, I will always, no matter how hard I try, come out more than a tad bit short in fulfilling the latter role. In fact, balancing the demands of working full-time as a Foreign Service Officer with the needs of my daughters became too overwhelming. In August, I retired from the Foreign Service, having decided to dedicate myself solely to ensuring my girls' welfare and happiness. While the jury has spoken, albeit in a manner with which I respectfully disagree, as to the applicability of the death penalty, I urge your Honor to sentence the four convicted defendants to the maximum penalty now permitted by law -- that is, life imprisonment without the possibility of their ever being paroled. In so sentencing the four defendants, you would, in these troubling days, convey an unambiguous message to all future terrorists intent on destroying the lives of innocent Americans.
Incarcerating Wadih El Hage for life would also send a clarion signal to other would-be American citizens intent on betraying their country. As a naturalized American citizen, we welcomed him into our body politic. He, however, reciprocated this embrace with a loathsome act of treachery. As a traitor, he showed no mercy and, as such, is owed none in return.
I would also implore your Honor, if possible, to instruct the Bureau of Prisons to incarcerate the four under the most rigorous conditions allowed by statute and regulation. Justice, and our nation's security, would truly be served were these perfidious apostates directed to spend the rest of their natural lives in isolation reflecting upon the diabolical nature of their conduct. Let them wake up every morning knowing that humanity is united in viewing them as cowardly infidels who are despised by all and respected by none. Let them sleep at night knowing that their atrocities only served to blaspheme a faith in whose name they acted but whose truthful followers espouse a world of tolerance. As the years pass and as their minds and bodies rot in prison, let them come to the realization that men and woman of good will and virtue will always triumph over the moral depravity and pure evil represented by Bin Laden and his fellow pariahs. Finally, let them die conscious of the fact that their souls will be condemned forever.
In conclusion, your Honor, I speak for myself and my daughters in thanking you for affording me an opportunity to address the Court today. I will return home this evening with the peace of mind that comes from witnessing the majesty of justice reigning supreme. For this, my girls and I are eternally grateful. Thank you.
THE COURT: Mr. Owens.
MR. OWENS: I thank the Court for the opportunity to express my views as to the sentence to be imposed upon the defendants who stand convicted of terrorism in the attacks upon the American embassies in Nairobi and Dar es Salaam. I believe that the privilege to address the Court implies a duty to accurately set forth not only my views but, to the extent possible, the views of the many fellow victims of these acts of terrorism who cannot be here today.
One of the defendants in this case, Ali Mohamed, described the organizational background which permitted these attacks to go forward in his plea hearing before this Court on October 20th, 2000. Mr. Mohamed set up a meeting between Bin Laden and the chief of Hezbollah, at which it was agreed that Hezbollah would provide explosives training. Sworn testimony last summer in the United States District Court for the District of Columbia indicated that much of this type of training is actually carried out at a training camp there Iran run by the Iranian Ministry of Information and Security. At that plea hearing before this Court, Mr. Mohamed testified that Iran provided the explosives for the bombings which have brought us here today. Within the last week, the chief of Hezbollah was placed by the Federal Bureau of Investigation on the list of 22 persons designated as terrorists leaders wanted by the FBI. He has been widely reported to currently be a guest of the Iranian government.
The annual report Patterns of Global Terrorism published by the Department of State only six months ago once more noted that Iran is "the most active sponsor of terrorism" in the world. That report and prior annual reports detail terrorists actions undertaken by the order of Iran or with its support prior to September 11th, 2001 in which more than 1500 Americans have lost their lives.With this history of terrorism on the part of Iran, I and many other victims of their criminal actions were confused by the appearance of the United States Department of Justice on behalf of Iran two days ago in the United States District Court in Washington requesting that the Court vacate a judgment entered against Iran on behalf of the 52 Americans held captive by Iran. We only have to walk a few blocks from this courthouse to know that prosecution against individuals, without action against the supporting governments, has not deterred new terrorists acts. To the contrary, it has invited them. Notwithstanding, I urge that this Court impose the maximum sentence upon each of these defendants. I make this request of the Court for two reasons. The first is that I believe that sooner or later our country must confront religious radicalism as a genuine threat to the principles of religious tolerance and peaceful resolution of conflicts, which must be embraced by all nations if we are to have peace. When that time comes, the sentencings imposed by the Court in this case might very well be the tool which will bring forth testimony from these very same defendants which will spread in detail the truth about these terrorist actions on the public record. My second reason for urging that the Court take this action has to do with my own unique relationship with the people of Tanzania. I have over many years spoken about these wonderful people and their way of life. I note that no American died in the attack at Dar es Salaam, primarily because Tanzanian citizens employed in security at the embassy carried out their jobs effectively and with great courage in stopping the truck which carried the bomb and preventing entry of the truck into the area immediately adjacent to the embassy building.
It is in no way an exaggeration to say that I am here to speak today because of their courage. I am not a lawyer, but I have been told that this Court does not have the jurisdiction over the murders of these men, as they are not American citizens. However, it is my understanding that the Court may take into consideration in imposing sentence the surrounding circumstances of the offense. I would therefore ask the Court to consider that not only America and Americans were attacked at Dar es Salaam, but also Tanzania and citizens of Tanzania who suffered terrible casualties. I believe that the horror of what was done to them alone would afford a sufficient basis for this Court imposing the maximum sentence on each defendant. Such an action by this Court will demonstrate to people around the world our concern not just for ourselves but for every victim of international terrorism.
THE COURT: Thank you, Mr. Owns.
MR. OWENS: Thank you.
THE COURT: Mr. Pressley.
MR. PRESSLEY: Thank you, your Honor. I came here to let you know that I was injured in the bombing in Nairobi.Injuries I suffered there, I guess if you compare the people that were killed, are small, but these three years have been nothing but hell.
I have had seven operations on my shoulder. I have had metal placed, replaced. I have a serious infection that I take antibiotics for every day. I take pain killers. I have had 28 teeth basically crushed. I have had four operations in my jaw, tongue, my neck. I have had tremendous nightmares for several years. My wife also worked in the embassy. She was not hurt, thank God, and was pregnant. She came out of the embassy and saw me and in a most unbelievable condition. These three years for both of us have been nothing but a long nightmare. These people deserve to be put away forever. They never need to see a sunrise, a sunset. They should never be allowed to touch another living human being. They should never be able to hold their wives, their relatives, their friends. They should realize what they have done. Possibly they never will. But if they are ever set free again, in my opinion, it will only go back to these ways of trying to hurt innocent people.
Our culture is based on laws. I'm not sure sometime the laws are always correct. That's why we have courts, that's why we have a system to go through. This was wrong.
Many of my friends in Kenya, many of my American colleagues working, we have no political values, we have no religion that hates Islam. We do not hate anyone. We're living every day in society, trying to make a living, to be with our families and to be loved and give love in response.
These three years, we have no chance for that. One hospital after another, one doctor's office after another. Another four hours' medication, another doctor, another operation, another nightmare, another September 11. We have not been able to handle it very well. Yes, during the day we smile, we put on a good face, and then we go home and cry. This is not the way it's supposed to be. These people will kill for no reason. These people need to be put away forever. And I ask the Court to please consider this. The people that are dead, I'm so sad. It makes me -- I mean, it has affected me a lot. In the same room as me two other people were killed. Your Honor, they weren't killed, they were ripped apart. My body was ripped apart, but by the grace of God I could get up and get out. Seven pints of blood. For the first year, I was so worried about having other diseases from blood transfusions. You name it, everything in our mind has gone on. My office tells me I should get on with my life. Get on with my life? I'm sorry, it's not that simple. We don't get on with our life after something like this happens. We hold thesethings in and we try to seek help, but it's still there and it's going to be there forever. I have six children, and I try my best to put on a good face for them and tell them that I'm fine. But, in fact, I'm not fine. My wife is not fine.
This is not right. And what we're asking from you, Judge, and the court system is for justice. We realize you can't change what happened. We realize that if you could, you would. But these people have to be punished. Like my colleague said, the more accurate punishment would have been the death penalty, but the good citizens of New York, for whatever reason, decided that, no, we'll do otherwise. Okay. Otherwise, let them rot in jail for the rest of their lives, the most severe circumstances possible. They deserve this. I ask the Court to please understand all the pain, the suffering we have gone through and will continue to go through. Recent events have made these pains recur. It made the wounds deeper, and every time I go into an operating room or a doctor, I think about what these people have done to myself, my wife, my children, my family, my mother, my father, all of my relatives. I didn't bring paperwork. I have no speech. I'm hurt, and these people hurt us and it's not right. So I ask the Court to please, please put these people away forever. Thank you.
THE COURT: Thank you, Mr. Pressley. Temina Dalizu.
MS. DALIZU: Good morning, Judge Sand, and thank you for letting me express myself. I am one child of four of Jean Rose Dalizu, and I'm the baby, glad to say. There's always a special bond between a mother and her baby. Beautiful, vibrant, patient, caring, gentle, sweet, loyal, forgiving, loving, on and on the list goes. But how does one describe a major part of their life? What words can I use to convey what my mother meant to me in every way? How can I capture that essence? Do you know your mother? Do you remember your mother? Well, I do. She's the one who risked her life unselfishly, bedridden with a high-risk pregnancy, determined to give life to me. She fed me and clothed me, taught and molded me, and now she's gone. Do you remember your mother growing up? I clearly do. For 17 years before college, she was a bright and cheery voice that woke me from my sleep. "Good morning, little lady. Time to get up. Rise and shine." To which I always growled and grumbled and turned my head the other side. Then, with a flick of the switch, bright lights turned on, much to my horror. Could anything be brighter than my mother at this ungodly hour?
She always prepared hot chocolate after a cold swim team day, special cakes and fruity shakes and little gifts galore for reasons just because. Cuts of my favorite flowers, they are all an expression of her love. When begging for some useless toy, she would start out strong, but easily give in to my monotone mantra of, "Please, mommy, please, mommy, please." It all wasn't peachy keen. Do not be deceived. I also remember hot switches on my legs when in my head rebellion struck in. Getting into her clothes and makeup, I definitely misbehaved, and it was usually her perfume that always had me betrayed.
I remember her gentle presence and her soft hands upon my head, medicine and tender kisses as I lay sick in my bed. Now she's gone forever, removed totally from my life. Did your mother inspire you? And did she ever guide you? Well, this is how mine did. Never by telling me what to do, but her living example showed me I always could. Every genuine interest that I expressed, she cultivated. She never pushed, but steadily encouraged my hobbies, which became my dreams of zoology and then reality with a degree in marine biology and a side of compassion and empathy evident at FEMA, where I am currently employed. After my father's retirement, she became our sole wage-earner. She planned to retire at 62, time enough tobuild a house for two and finance me for my Ph.D., to be done in England so instead of five years, I would only have three. But on that fateful day in '98, at 60 she was murdered and this had nothing to do with fate.
Now my Ph.D. plans are stalled and my father's life is empty and dull because we have both lost half of our soul.
And not only must he learn to live again, but now he is forced to come out of retirement. Now that my mother has left me, who can I give a call? For in times of trouble, I would pick up the phone and definitely give her a long-distance call. When just hearing her voice, she began to calm the turmoil within my soul. As I poured out my heart, she always patiently listened. Then, as only a mother could, she began to pour out her wisdom, whether I was wrong or whether it was my friend's wrong. As a finality, she would quote scripture to me and pray with me, and I would hang up the phone, full of peace. Now she's been ripped from my life. Since I was five, I sat at her feet in our sanctuary known as the kitchen, where mostly I would listen, but, most importantly, I learned all her wisdom. And somewhere in between the love and the laughter, I also picked up many a cooking lesson.
Who can understand the mother/daughter bond? And now she's snatched from me. I'm a daughter all alone. Who will dress me and dance for me on that wedding day? And who will guide me in pregnancy and hold my first born child? Is that not my mother's job?
She was a virtuous woman, and so will I be, for in living what she preached, she beautifully fashioned me. Mom, I miss you more than anyone will ever know, and no amount of words or speeches will ever convey so. When they took you, I was left with an empty space, but now the holy spirit has filled that space.
She taught me life and she taught me love. She taught me you can go on with faith in God above. So I lean on my Lord and each day take a stronger step, for there is no greater reminder of my mother than everything that makes me myself.
I am only one of the four children that my mother had. This does not convey the loss that my father has incurred financially, emotionally and physically. This does not convey the lives of all of her friends and the rest of her family who are suffering her loss. And she is only one of the 214 who were murdered on that day, and, Judge, I only ask that you can proceed and justice will come our way. Thank you.
THE COURT: Thank you.
The Court is advised that there are six other victims present who I understand do not wish to make any statements. The Court also notes that it has received numerous letters from victims, and they have been marked as Court Exhibit A of yesterday's date and have been filed. The Court will proceed with the sentencing, and we will proceed first with K.K. Mohamed. Mr. Mohamed, have you read the pre-sentence report and gone over it with your attorney?
DEFENDANT MOHAMED: Yes.
THE COURT: You nodded your head, but did you -- the court record requires something audible to occur.
MR. RUHNKE: He said "yes" very quietly, your Honor. He said "yes."
THE COURT: Okay. Are there any errors or corrections you wish to have made in the pre-sentence report?
MR. RUHNKE: There are no errors or corrections, your Honor.
THE COURT: Mr. Ruhnke, the Court will hear you with respect to the sentence.
MR. RUHNKE: Yes, your Honor. On Mr. Mohamed's behalf, we simply wish to express gratitude to a jury which spared his life. He has no statement he wishes to make. He is prepared to be sentenced.
THE COURT: Mr. Mohamed, is it the fact that you do not wish to make a statement at this time? You understand you have the right to make a statement?
THE DEFENDANT: Yes.
THE COURT: This is a time not for eloquence but for justice. Even were I tempted to engage in rhetoric, I certainly could not match the eloquence and the poignancy of the witnesses we have just heard.
Mr. Mohamed, the jury has found you guilty of crimes which mandate a life sentence, and I will of course impose such sentence.
A word about the jury which has unanimously and beyond a reasonable doubt found you guilty of these horrendous crimes.
The jury was painstakingly selected for a period of about a month, and you could not equal the jury in terms of diversification and representation of the community. No matter what criteria one evokes -- race, gender, ethnicity, socioeconomic status, education -- the jury was indeed a cross section of the community.
Another word about the jury and the five-month trial.
Everyone who has witnessed or been involved in these proceedings knows that this was a jury which did not reflexively react to the nature of this crime or the perpetrators. This is a jury which carefully, maticulously scrutinized the evidence. We know not only from the length of their deliberations but the questions that were asked that they performed their task conscientiously.
This jury deliberated on two occasions. On the first1 occasion, Mr. Mohamed, had found you guilty of all crimes charged. At the second trial with respect to penalty, this jury reported that: "We are unable to reach a unanimous verdict either in favor of a life sentence or in favor of death sentence for any of the capital counts. We understand the consequence of this is that Khalfan Khamis Mohamed will be sentenced to life without the possibility of release." And we know, to an unusual extent, the reasoning of the jury because they answered certain interrogatories. Three of the jurors believed that life imprisonment is a harsher punishment than being put to death. And if in fact that is true, it is appropriate.
It is the judgment of this Court that you be sentenced to a term of life imprisonment on Counts 4, 8 and 10. You are further sentenced to a term of life imprisonment on Counts 3, 5, 224 to 234, 277 to 279 and 283. As required by statute, I impose the mandatory ten-year sentence on Count 284 and the mandatory 30-year sentence on Count 286. The sentence on Counts 284 and 286 are to be served consecutively to each other and to the other counts.
The mandatory conditions of probation are moot in light of this sentence. The mandatory drug testing is suspended because there appears to be low risk of that.
The Court further orders, as mandated by statute, that you pay a total special assessment of $2,300.
(Pause)
THE COURT: My deputy mentioned that I did not mention Count 1. I had intended to say that you are to be sentenced to life imprisonment on Counts 1, 3, 5, 224 to 234, 277 to 279 and 283, in addition to the mandatory consecutive sentences of 10 years on Count 284 and 30 years on Count 286. The Court will enter an order of restitution which provides for payment of restitution of a total of some $33 million, and has provided a mechanism for the determination of the monetary amount of damages by individual victims as well as $26,300,000 to the United States. Restitution payments are made to the United States only after restitution has been made to individual victims.
The order attaches a list of persons who died as a result of the bombings and has a restitution award of some approximately $7 million. That too will be filed, but the addresses contained on that attachment will be redacted.
THE COURT: Mr. Mohamed, the court advises you that you have a right to appeal your conviction and your sentence, and if you wish the Clerk of the Court to file a notice of appeal of sentence on your behalf, if so instructed he will do so. Is there anything further with respect to Mr. Mohamed?
MR. RUHNKE: No, your Honor, there is not.
THE COURT: The court will take a brief recess.
(Recess)
THE COURT: With respect to the defendant K.K. Mohamed, all open counts and all of the various superseding indictments are dismissed.
Mr. Al-'Owhali, have you read the presentence report and gone over it with your attorney?
MR. COHN: Your Honor, as set forth yesterday in yesterday's hearings, it was provided to him in Arabic and we have been over it with him.
THE COURT: Yesterday, I should state that we had a three-hour session yesterday in which we reviewed some of these matters. Have all of the suggested changes and corrections to the presentence report been noted as of yesterday?
MR. COHN: We made no suggestions because there were none that were material. As I pointed out yesterday, there was one minor matter.
THE COURT: I would like to have Mr. Al-'Owhali acknowledge that he has read the presentence report. Have you read the presentence report?
DEFENDANT AL-'OWHALI: Yes, I did.
THE COURT: Very well. Mr. Cohn, I will hear you generally with respect to sentence.
MR. COHN: Your Honor, we have no statement to make. Sentencing is statutory and we rely on the statute.
THE COURT: Very well. Mr. Al-'Owhali, you are before this court convicted of the various crimes that are set forth in the indictment and in the presentence report. Is there anything you wish to say to the court before sentence is imposed? No.
As your attorney has stated, the sentence is mandatory here. The jury returned a verdict which states that they do not unanimously find that the death sentence is appropriate and we understand the consequence of this is that you will be sentenced to life imprisonment without the possibility of parole.
Four of the jurors stated that lethal injection is very humane and the defendants will not suffer, which is an indication of the views of some of the jurors.
The court will of course impose the sentence mandated by law with respect to those counts which call for a mandatory sentence. The court imposes a term of life imprisonment on Counts 1, 3, 4, 5, 7, 9, 11 through 223, 235 to 276, and 280 to 282, to be followed by the mandatory 10 years' imprisonment on Count 284, to be served consecutively to the above counts, followed by a mandatory minimum of 30 years, to be served consecutively to the previously stated counts.
It is appropriate that I indicate, although it is academic, that there will be a five-year term of supervised release on Counts 1, 3, 4, 5, 7, 9, 11 to 223, 235 to 275, 276, 280, 281, 282 and 285, and a three-year term of supervised release on Count 284, all terms of supervised release to run concurrently.
The court imposes the mandatory special assessment of $26,600.
The court signs the restitution order which I previously described and which names you as a defendant obligated to make restitution payments as indicated in that report.
The court imposes no fine on you, as it imposed no fine on K.K. Mohamed, because of the restitution obligations which take precedence.
The court advises you that you have a right to appeal your conviction and sentence, and if you wish the Clerk of the Court to enter a notice of appeal on your behalf, he will do so.
The court dismisses all open counts and any superseding indictments insofar as you are named as a defendant.Is there anything further with respect to defendant Al-'Owhali?
MR. COHN: No, sir, except to advise you that we will file a notice of appeal in his behalf.
THE COURT: The court will take a very brief adjournment.
(Defendant Al-'Owhali excused)
(Recess)
THE COURT: The court will proceed with the sentencing of the defendant Odeh. Mr. Odeh, have you had the opportunity to review the presentence report and go over it with your attorney?
DEFENDANT ODEH: Yes, I did.
THE COURT: I believe yesterday we went over all of the suggested changes to the presentence report. Is that correct? I will hear from counsel.
MR. RICCO: Your Honor, we have two very brief remarks to make.
THE COURT: Yes.
MR. RICCO: The first are the legal arguments that relate to a downward departure and the other just general remarks that relate to sentencing.
THE COURT: Very well.
MR. RICCO: Your Honor, first and foremost, I will have to say with respect to the issue of downward departures that as counsel for defendant in Mr. Odeh's circumstance, the guidelines themselves put us through a mechanical endeavor to see to it that his due process rights are raised at the time of sentence. The issue of departure is in no way raised as an offense to the powerful statements that the victims have made here this morning.
There are three grounds that have been raised with respect to Mohamed Odeh's request for downward departure. We primarily rely on the papers that have been submitted. Most notably, we would indicate to the court that what we have asked the court to do is to look at a confluence of circumstances. Those circumstances individually may not be sufficient to support a downward departure, but perhaps in confluence with each other they would. We have submitted what we think is authority for the court to consider a downward departure, but of course we are aware that ultimately it is this court's determination as to whether or not that departure is appropriate in this case.
We would ask the court to view the departures from the perspective of Mohamed Odeh. We have requested that in our papers. The second prong of our downward departure, that is, the assistance that he gave to other law enforcement authorities in connection with his prosecution was one ground that was highlighted. The third ground that was highlighted was a very unusual ground, and it was a ground that reflected the defendant's state of mind, because we believe that the grounds do permit a downward departure based upon the defendant's intent when that intent is different from that of a defendant who is in a typical circumstance, typical circumstance on the crime for which he was convicted. For that we would rely on the Second Circuit case of Broderson, and I think Judge Scheindlin had a case in this district, I think Nachamie, that supports such a departure.
Mr. Wilford will address the court with the substance of the third prong, which deals with the victim provocation, which is an issue that the defendant wanted raised here in the court.
MR. WILFORD: Your Honor, it is important that we view this departure request, as Mr. Ricco stated, with respect to the mind set and the state of mind of Mr. Odeh. Your Honor, Mr. Odeh was a soldier in the military wing of Al Qaeda, and it is clear from the evidence that was adduced at trial that the United States government was and remains the target of the actions of Mr. Bin Laden and Al Qaeda. As a result, under the analysis for a departure on the grounds set forth in 5K2.10 of the United States Sentencing Guidelines, we must identify the victim that we speak of in terms of that particular guideline as the United States rather than the individual victims for purposes of this particular departure request, your Honor. The perception of the victim's conduct must be viewed objectively from the defendant's perspective, and for that we rely on United States v. Morin. However, that conduct must be real, it must not be imagined, and it must also be more than provocative, it must be wrongful. Speaking with respect to Mohamed Sadeek Odeh --
THE COURT: With respect to his state of mind, what is it that you rely on as furnishing the court any insight with respect to the defendant's state of mind?
MR. WILFORD: Government's Exhibit 6, your Honor, which is the report of the statements that were taken from Mr. Mohamed Odeh in Kenya over the 11-day period of interrogation, and the testimony that accompanied them by Agent Anticev.
THE COURT: And that is the totality of the evidence with respect to his state of mind insofar as he is concerned?
MR. WILFORD: That is correct, your Honor, and, your Honor, if I may, with respect to Mr. Odeh's state of mind, your Honor -- I am speaking now on behalf of Mr. Odeh solely, your Honor, and it says, so the court is clear, it is Mr. Odeh's view that the United States' support of Israel, both financially, politically and militarily, presence of United States military in the holy lands of Saudi Arabia, the Persian Gulf and the Horn of Africa, constitutes provocation on the part of, as I said, the victim being the United States.
Indeed, based on that, as we stated in our papers, the defendant satisfies the five prongs of 5K2.10, and based upon that, your Honor, we would submit to the court that the victim's conduct, as we detailed in our papers, becomes the basis for a downward departure if it is viewed in conjunction with the other grounds which Mr. Ricco mentioned and which we mentioned in our papers, and these grounds combined provide the opportunity, should the court deem it appropriate, to grant a downward departure.
Additionally, your Honor, Mr. Ricco will be addressing the court on some general remarks with respect to sentence.
THE COURT: Does the government wish to respond to the downward departure request?
MR. KARAS: Yes, your Honor. In addition to what we mention in our papers, which is that there is no basis for downward departure because the defendant faces mandatory life, that there is no basis for downward departure by virtue of alleged cooperation because no one was arrested or prosecuted with respect to the information Mr. Odeh, with respect to the alleged misconduct, the argument is offensive. The attack may have been intended to attack American foreign policy, but the victims were innocent people: Innocent Americans, innocent Kenyans and innocent Tanzanians. There is no basis under any reading of the law that the people who were killed did anything to deserve the attacks that Mr. Odeh was involved in.
THE COURT: The court denies the application fore a downward departure. Assuming arguendo that the court would have the power to downwardly depart, there is no grounds which have been urged which would in any way suggest to the court that a downward departure is appropriate. To try to make the victims appear to be an abstraction may ease the conscience of the defendant, but does not mitigate the fact that 214 people were killed as a result of the two bombings and the suffering which was inflicted not on abstractions but on human beings.
The application for a downward departure on the grounds that the defendant's state of mind is predicated on the fact that he told somebody who was interrogating him in Kenya that he was sorry so many civilians were killed is grossly inadequate basis for any downward departure.
The court has read the papers and all of the grounds urged for a downward departure and finds them to be without merit and, as stated, assuming arguendo that the court would have the power to downwardly depart, it declines to do so. Mr. Ricco.
MR. RICCO: Your Honor, generally with respect to the sentencing of Mohamed Odeh, your Honor, Mohamed Odeh stands before the court today for sentencing. He is a foreign national convicted of participating in extreme acts of violence against people of the United States and of other nations. Today Mohamed Odeh reasserts his innocence to committing crimes against the people of the United States and other nations. He is and remains a member of Al Qaeda who in his view, in his faith of God, brought him from the Middle East to the Philippines to Afghanistan, to participate in an organization to change oppressive circumstances. Mohamed Odeh's hope is that some day the conditions of oppression will be removed from the parts of the world in which he lives. He was a member of the military wing of Al Qaeda and was prepared to fight and did fight for change. He participated, as the court is aware from the testimony at trial, in combat in Afghanistan and in Somalia. However, Mohamed reasserts now, as he did then, that he did not join Al Qaeda to follow Mr. Bin Laden or take orders from anyone blindly.
He is now prepared to face the sentence that the court must impose here. He is very much aware of the substantial human loss that occurred here. He is not oblivious to the fact that many people were injured and many people died here who were innocent. He acknowledged that very early on in the case when he was interrogated. He has remorse about the loss of life. He has always expressed that. He does not have remorse, your Honor, about his participation in Al Qaeda. That's a difference in his mind.
He is a very deeply religious man who has complete and utter faith in God. Like other people who have come before the court, he believes that God will ultimately judge him some day. Some day many years from now Mohamed will be laid to rest by the Bureau of Prisons long after many of us are gone. Mohamed will live a very long and lonely life here in a United States prison. As the court is aware, he has no family, no friends, no relatives, nothing in this country. However, Mohamed wants the court to know that he has complete and total faith in God. It is his hope that God will not abandon him and will continue to be a part of his life while he serves his sentence here in the United States.
Mr. Odeh also wanted to express, notwithstanding his bitterness at being prosecuted here, his gratitude to this court for providing him, a person who is a stranger to this country, with an opportunity to work with the lawyers and an opportunity to present a defense before this court.
I just would end by saying, in the place where I started when we did opening statements here, there was a tremendous loss of life here. I don't think there is anything anyone could ever say that would ever change the tragedy of that loss. Mohamed Odeh has always stated that he was not a part of the execution of the bombing. He continues in that position today, but that does not mean, your Honor, that he is a person who is oblivious to the great loss of human life and the great injury that was inflicted upon people here. These are the remarks that Mr. Odeh wanted to be said on his behalf by me here at sentencing today. He does have a very brief statement that he wants to make, your Honor.
THE COURT: Mr. Odeh, you stand here before the court convicted of the crimes set forth in the indictment. Is there anything you wish to say to the court before sentence is imposed?
DEFENDANT ODEH: Yes.
THE COURT: The court will hear you.
MR. HERMAN: It is in Arabic, Judge.
THE COURT: The interpreter -- I wonder whether it would be -- yes.
MR. RICCO: The interpreter is coming forward, your Honor.
THE COURT: You want a hand mike? Mr. Codouni, you will interpret for the defendant, please.
MR. CODOUNI: Yes, your Honor.
DEFENDANT ODEH: In the name of God, the compassionate and merciful. In truth, during the last three years there are many things that I have experienced and that I could be talking about for many hours. But I know that the opportunity I have is a short one here. Suffice it to say two things. It is a question that I pose, and I present to the US government. I ask myself too, how can the government claim justice and that it allows itself to try a person twice with the same charges? My personal opinion is that the trial happened and the verdict is of the past and the execution of the sentence has been done a month ago, since -- I mean to say -- correction -- since the last -- the end of the month of August in 1998, when the US government sent missiles against those the government claimed had a relationship who does not have such relationship in the embassy incident, including dozens of civilians that have nothing to do and are not guilty of anything here and who do not have anybody to represent them here in this place and at this time.
My question here is, if this is what the trial is about, if this is a trial, what is it that happened since the beginning of the year until the middle of it, and if what happened since the beginning of the year until the middle of it is the trial, what can what happened in 1998 be called?
The second issue is question whether what happened in that period of time between the month of February until the month of May, if it is a true image of what American justice is. In that case I would not have anything but to say that to Allah we belong and to him we return. God help me in my calamity and replace it with goodness. On God I rely. In him I put my trust. Thank you.
THE COURT: Mr. Odeh, I confess that I am not sure that I understand what you are saying insofar as American justice is concerned. Your attorney on your behalf expressed your gratitude at having been furnished with very able counsel, who very zealously looked after your interests. I have already commented on the jury and how it was selected and the time, effort and money that has been expended in an effort to give you, I believe a successful effort to give you a fair trial in accordance with principles of American justice. I think it has been extraordinary.
It is not unusual for perpetrators of horrendous crimes to point to other events or other circumstances to try to deflect the enormity of their own acts. When you talk about America firing missiles at persons it believed were involved in the bombing and that there was death to innocents, that would suggest that your system of values would not allow or condone the killing of innocents. But you know that the crimes for which you have been found guilty involved the killing of innocents.
I recognize, as the jury, I think, indicates in its findings with respect to the defendants who were subject to possible death penalty, that your motivation was not the motivation of a criminal who acts out of greed or lust, but that is true of most terrorists. And the law recognizes, and appropriately recognizes, that terrorism, which causes the death of innocent persons regardless of whether it is based on sincerely held but terribly misguided views or any other reason, is one of the most serious crimes, threats to our society, threats to the society of any civilized nation. It is the judgment of this court that you be sentenced to a term of life imprisonment on Counts 1, 3, 4, 5, 7, 9, 11 through 223, 235 to 275, 276, 280 to 282, to be followed by a mandatory 10 years' imprisonment on Count 284, and a mandatory 30 years imprisonment on Count 285, to be served consecutively to each other and to the life terms.
The court imposes the mandatory special assessment of $26,600.
The court includes you in the restitution order, a restitution order which takes into consideration your present economic situation so far as we know it, and the fact that you will be incarcerated. The court imposes no fine because of the amount of the restitution ordered.
The court dismisses any open counts in which you are named as a defendant and any superseded indictment.
The court advises you you have a right to appeal your conviction of sentence, and if you wish the Clerk of the Court to enter a notice of appeal on your behalf, he will do so if so advised.
Is there anything else with respect to Mr. Odeh? MR. RICCO: No, sir. I will file a notice of appeal on his behalf. Thank you very much.
THE COURT: Very well. The court will take a brief recess.
(Defendant Odeh and his counsel excused) (Recess)
THE COURT: Which brings us to the matter of sentence for the defendant El Hage. At a three-hour hearing yesterday, we resolved all questions relating to the content of the restitution order, of the presentence report and all legal issues, deferring until today not only the sentence but requests made on behalf of El Hage for downward departure. Before we do that, although we did cover it yesterday, Mr. El Hage, have you read the presentence report?
DEFENDANT EL HAGE: Yes, I did.
THE COURT: Has your attorney yesterday, a hearing at which you were present, stated all of the objections or corrections you have to the presentence report?
DEFENDANT EL HAGE: Yes, he did.
THE COURT: Very well. Mr. Schmidt, I will hear you then.
MR. SCHMIDT: Your Honor, the way we intend to proceed is, Mr. Dratel is going to deal with the issues relating to the downward departure application. Then I will speak briefly on behalf of Mr. El Hage and Mr. El Hage will read a statement that he has prepared for your Honor.
THE COURT: Very well, Mr. Dratel.
MR. DRATEL: Mr. El Hage specifically does not join in the departure request with respect to victim conduct. It is Mr. El Hage's conviction that victim has nothing to do with either downward departure or the embassy bombings.
THE COURT: The court understands that the defendant Odeh was speaking for himself and speaking his views and not the views of anyone else.
MR. DRATEL: Your Honor, we have submitted several grounds for downward departure. I want to focus on one in particular, which is the conditions of confinement, both presentence and continuing from here on. The Second Circuit has recently recognized the validity of downward departure based upon conditions of confinement in the United States v. Cardi case.
THE COURT: That is a case in which the defendant fled to the Dominican Republic and was held in the Dominican Republic under conditions described in that opinion which were not the result of any conduct on his part other than being in the Dominican Republic. It was not a question of restrictions or sanctions imposed upon him because of his conduct in confinement.
MR. DRATEL: Your Honor, there are two responses is to that. While the incident of June 1999 occurred, Mr. El Hage was held in solitary confinement for nine months before that. There were no acts alleged against him personally. In Cardi, I think the defendant argued -- and also in Francis -- not outside the country, in the United States, where Judge Patterson departed downward based on conditions of confinement.
I think the court also recognized in this case prior to June 22, 1999, and I think the court said it would take judicial notice of the fact that solitary confinement has an impact on mental health that is obviously not beneficial. We have that now for basically a three-year period going forward for as long as the court sentences Mr. El Hage. Those issues, we believe, warrant a downward departure.
In addition, particularly in light of not knowing where the designation of Mr. El Hage would be, the issue of family contact, Mr. El Hage's wife and seven children, their ability to have contact with him on any kind of meaningful basis is also part of that. While we obviously can't quantify the equivalent in terms of the normal conditions of incarceration, we believe that the difference is substantial enough to warrant a departure from the guideline sentence.
In addition, with respect to the other grounds for departure -- I just want to say about the conditions of confinement, I think everyone is in agreement that they are stringent as are possible under our system.
With respect to the other grounds for departure -- this also goes to the conditions of confinement -- to the extent that alone they do not constitute a grounds for departure, I think altogether they do. I am not revisiting the substance of the arguments yesterday, but the Second Circuit has found in a string of cases -- Gigante, Cordova, and even Salameh, a case more similar, involving the World Trade Center -- that the court did authorize a downward departure to the extent that even if the court found as a matter of law the applicability of certain adjustment, that the way to remedy the possible inequitable application of that adjustment was through a downward departure, and we believe that in many of the instances with respect to the enhancements, whether they be offense-related enhancements but also the criminal-history-related enhancements in particular, the arbitrary enhancement to level 6, that all of those should be remedied by downward departure.
In addition, the extraordinary family circumstances --
THE COURT: Tell me about them. The family circumstance is that Mr. El Hage has seven children.
MR. DRATEL: Yes, your Honor.
THE COURT: One of them is three years old? The court should note that it has received a letter from Mr. El Hage's wife.
MR. DRATEL: Yes.
THE COURT: How old is the youngest child?
MR. DRATEL: Three, your Honor.
THE COURT: And you urge that Mr. El Hage have an opportunity to participate in the raising of that child?
MR. DRATEL: Your Honor, in addition, the downward departure grounds are more related to the potential, or the actual difficulties that the children have with respect to --
THE COURT: Being separated from their father.
MR. DRATEL: Yes, exactly.
THE COURT: And how long a sentence do you think would obviate that?
MR. DRATEL: Your Honor, I think that --
THE COURT: I won't require you to quantify that, but isn't it the fact that any reasonable downward departure from the guidelines which were established yesterday would have the consequence of Mr. El Hage being separated from his children until their maturity?
MR. DRATEL: Your Honor, I think there are two questions that raises. One is whether the difference in the sentence might also precipitate a difference in the conditions of confinement and the security --
THE COURT: Conditions of confinement are determined by the Bureau of Prisons, not by this court, and they are determined considering the factors such as nature of the crime, past conduct of the defendant while incarcerated -- I don't understand the number of children or ages of children as a factor with respect to conditions of confinement.
MR. DRATEL: The length and character of the sentence is one that the Bureau of Prisons takes into account with respect to a security designation for a defendant. There are certain eligibilities for certain types of facilities that are related to the length of the sentence.
THE COURT: What I am really suggesting to you is -- the court has the power to downwardly depart. That should be clear. I recognize that I have that power. But that no reasonable downward departure would significantly impact on either family circumstances or conditions of confinement.
MR. DRATEL: Your Honor, when we talk about conditions of confinement, we are also talking about the type of -- in other words, what an appropriate sentence and appropriate punishment is in the longer context, not that a downward departure would alleviate the conditions of confinement when he is serving but in terms of what the equivalent is, in the sense that the type of sentence that he is serving --
THE COURT: I don't think that is the case. I hope that is not the case. I assume that the Bureau of Prisons will read the presentence report, will read the other material that will be furnished to him with respect to Mr. El Hage's conduct and that it will determine conditions of confinement, place of confinement, based on all of that, not whether the court downwardly departs or not. Unless, you know, unless you were to make an extraordinary finding of how Mr. El Hage's conduct was aberrational, that there is no likelihood of repetition, that there was complete remorse, all things which are really totally irrelevant to this case.
MR. DRATEL: Your Honor, I don't think that was what the court was doing in Cardi. They weren't saying because the conditions of confinement would be alleviated there was that was a reason for downward departure. It was because the incarceration that the defendant endured under conditions that were so much more onerous than ordinary, that that should take time off the end of the sentence, and that was the nature why it should reduce the sentence and not how it was served.
THE COURT: I am fully familiar with the case and indeed I have it on the bench.
MR. DRATEL: The other issues we raised in terms of downward departure in addition to the criminal history enhancement was also the proportionality aspect in terms of the sentences among the defendants.
THE COURT: What is that now? Defendants subject to the death penalty argued proportionality before the death penalty jury. You are not prohibited from arguing proportionality to me. I just don't understand what the deprivation is that you allege with respect to proportionality. Do you want me to find that El Hage is the least culpable of the four defendants? I would not make such a finding. Do not press me as to whether I think he is the most culpable of the four.
MR. DRATEL: Your Honor, we have made our argument that in terms of the conduct at issue, that based on that, based on a reasonable proportional imposition of sentence, that he would get less time, your Honor.
THE COURT: Anything else?
MR. DRATEL: No, your Honor. Thank you.
THE COURT: Does the government wish to be heard?
MR. KARAS: Not beyond what is in our papers.
THE COURT: The court recognizes that it has the power to grant a downward departure but declines to do so because it believes that a downward departure here, based on conditions of confinement, would be entirely inappropriate.
Conditions of confinement as predicated here will be determined by the Bureau of Prisons in light of the nature of the crimes, in light of the defendant's history while incarcerated, and other facts and circumstances. There is simply no basis for a downward departure on the basis of conditions of confinement.
With respect to family circumstances, Mr. El Hage has seven children who I believe he loves and I believe love him.
Incarceration is always a hardship for one's family, but in this case of all cases, hardly provides a basis for a downward departure. It must be obvious to everyone in this courtroom, having heard today from victims, how incongruous it is for Mr. El Hage to seek leniency because he has a family.
With respect to proportionality, the notion that the facilitator, to use a term which I believe was first used in the government's summation and has been repeated in the papers, to suggest that the facilitator is less culpable than the low-level individual who ground up the explosive powder is not a set of values that I would subscribe to. Facilitator of what? Facilitator of the conspiracy to kill Americans.
The motions for downward departure are denied. The applications for downward departure are denied. Recognizing that the court has power, the court believes that it would be inappropriate to exercise that power. Mr. Schmidt.
MR. SCHMIDT: Your Honor, may I have one moment to speak with government counsel?
THE COURT: Yes.
MR. SCHMIDT: Your Honor, in my October 16th, 2001 submission, I included the documents. The government has made it clear that it proposed that the documents be immediately publicly filed and available. Those documents include the letter that was prepared by April Ray, Mr. El Hage's wife, a draft of a letter that he wrote back in 1997 before his arrest to his father, and a letter or statement to the Department of Probation in preparation of the pre-sentence report.
Mr. El Hage will be speaking to your Honor at greater length than counsel, and I think that he will be able to better express his feelings, his desires better than I possibly can. So I will try to limit my discussions in areas that Mr. El Hage will not discuss.
One of those areas that he is going to be limiting his discussion is of his family and his friends and his community, for a number of reasons. As was expressed in the pre-sentence report, it is very difficult for Mr. El Hage to talk about his family without breaking down because he has been separated from his family, his children, and his wife longer -- for a very long period of time, under the circumstances where his contact is limited and not private and infrequent. And in fact, he has not had the opportunity to speak to his wife for many months prior to today. This does not --
THE COURT: He has not had the opportunity recently, because as a the result of the events of September 11th, telephone service in the MCC was impaired. And in that respect, you wrote me a letter and you spoke to me about Mr. El Hage has not been able to speak to his wife or family.
And I made inquiry of the warden and was advised by the warden that that was true, that it was true for every inmate in the MCC.
MR. SCHMIDT: And I am aware of that, your Honor. Prior to the tragic events of September 11th, Mr. El Hage had not spoken to his family for over a month also. I am also aware that it includes all of MCC. However, all of MCC are not facing sentences that clearly are going to be life imprisonment without parole after a five-month trial. I have spoken to Mr. El Hage. We obviously have facilities to have attorney telephone calls. I know that it is difficult, but I'm sure that there is going to be problems in the future and difficulty with Mr. El Hage speaking to his family, and that affects him greatly. What I was saying was that --
THE COURT: We went out of way our way yesterday in the restitution order to make sure that there is not a deprivation of funds necessary for telephonic communication.
MR. SCHMIDT: I understand. I understand. Raising the closeness of Mr. El Hage's relationship with his family, and the difficulty that it has been for him, we do not mean to diminish the pain, the suffering caused by victims and the family of victims of the embassy bombings. We understand that and we are here and my job is to reflect the needs of Mr. El Hage.
One thing that Mr. El Hage will address to some extent, and I wish to address briefly, is that Mr. El Hage, while understanding the suffering of the victims of the Nairobi and Dar es Salaam bombing, has always maintained that he did not participate in any manner or approve in any manner or join in any manner of that conduct. Mr. El Hage has been honest and straightforward as to his strong religious and political beliefs, and he will continue to do so, as he will explain shortly.
He will be treated, it is clear, based on letters that we received or information that we received from the Bureau of Prisons, as an "embassy bomber," though in his background he has no history of any violent activity. He wants to express, the government has called Mr. El Hage a facilitator, and in the manner that both the government and your Honor and the Department of Probation has portrayed Mr. El Hage is that he was a facilitator of the embassy bombing, and as we have made clear, we disagree very strongly with that portrayal.
THE COURT: One may accept the proposition that the al Qaeda, like most clandestine gangs, operates on a need-to-know basis, and there is no evidence that Mr. El Hage knew of the embassy bombing, knew when or the details of the embassy bombing. But you know, I asked in colloquy, what was he facilitating when he was obtaining these false passports and arranging all these other things? What did he think that was for? Why did he think it was of value to have an American citizen who could travel freely about? Was he totally oblivious of the nature of the organization that he was working for? I don't think he is willing to say that.
MR. SCHMIDT: He is not going to say that. I think I can address it as Mr. Kherchtou addressed it, is that the nature of the organization is clear to be assisting indigent rebellions in Muslim countries against the powers that were in existence then, whether it was in Chechnya, whether it was in Tajikistan.
And as your Honor indicated, the fact of the need to know, there was not a need to know and we don't even know when it was decided that civilians became a proper target of al Qaeda. And I think that really becomes the issue, and Mr. El Hage will address, to a limited extent, his belief and religious feelings.
THE COURT: This is really not the time to quarrel with the jury's verdict, but the jury found Mr. El Hage guilty of a conspiracy to kill the United States nationals and made that finding based on sufficient evidence to do that.
MR. SCHMIDT: I don't mean to quarrel. Your Honor made certain comments where I believe that the jury verdict doesn't reach as far as the comments that your Honor made.
The documents that were included in my letter show Mr. El Hage's strong religious beliefs, and I believe that it shows that he uses his beliefs as strength for himself, not a sword against others who do not believe in the same thing that he does, and he will express himself in that way.
Mr. El Hage, from the point that I began representing him in March of 1999 -- I was not his first lawyer -- and when Mr. Dratel began representation of Mr. El Hage, I believe it was September, August of 1999, has steadfastly insisted in the way he has dealt with us and what he has said about the case.
He will obviously, your Honor, receive a life sentence at this time. He will continue to remain a religious and devout person, and he would like this opportunity right now to attempt to give your Honor a better understanding of the person that you are about to sentence, Wadih El Hage.
THE COURT: Very well. Mr. El Hage, you are before the Court convicted of various counts in the indictment. Is there anything you wish to say to the Court before sentence is imposed?
DEFENDANT EL HAGE: Good afternoon, Judge Sand. Good afternoon, ladies and gentlemen. I have prepared a word that I will read in front of you.
THE COURT: May I suggest you use the microphone?
DEFENDANT EL HAGE: Thank you for giving me the opportunity to do so.
First, I will speak about my beliefs because the persons beliefs form his identity and character.
This courtroom, with its walls, arrangements, decorations, audio and video systems, et cetera, if we ask who built it and who has been maintaining it all these years, and someone answers, it just happened to be there, no one made it, no one to take care of it. Then we probably think this person is either kidding or he is insane. We know for sure that someone must have made it and someone is taking care of it every day.
So, when we look at this vast universe, with its zillions of stars, plants and other systems, the earth, with its oceans, mountains, substances inside of it and on top of it, creatures of all kind, each has its own features, performance, place and life span. And finally, when we look at ourselves, organs, blood, sensations, our life and our death, all that, could it have existed on its own and continuing to exist and do its duties without a director, controller or maintainer?
No doubt that there is a creator for everything in this universe, and he is the sustainer and controller of that, who knows what are the needs of every single creature to continue its life and existence. Everything performs and acts according to God's will and his system, and have no choice but to follow this system reluctantly, except for humans, whom God has given them free will to choose their actions.
This was a great honor given to mankind. God, the most merciful, most wise, sent His prophets and messengers to teach mankind who is their creator and also how to deal with each other and with everything around them according to the best methods and manners, which, if man chooses to follow, will enable him to live a good life, harmonious and consistent with everything around him, which all are governed by God's rules.
Through the history, humans were two parts. One chose to follow God's rules and guidance, therefore lived a good life in correlation with everything around them. The other party chose to invent their own rules and systems of life, thus living in conflict with everything around them, experiencing high rates of crime, family crisis, unwanted children, high rate of rape of women and children, suicide, mental illnesses, and much more.
All that, whenever existed among the first party, it was in negligible rates because they are following the maker's guidelines. Yes, humans have been making their own laws, but they also change, delete or alter them every now and then.
But in this process people are being subject to unfair rules, rights are being violated, and individuals are being oppressed. Not only that, but corruption and damage will also affect the other creatures around us, the environment, air, and oceans. All that because man wants to apply his own self-created rules, in spite of all his weaknesses, shortcomings, limited ability to see, hear, speak, judge and make decisions. Man also has desires, tendencies and whims. All those limitations hinder man's ability to establish a complete and fair system.
On the other hand, following the rules and guidelines of God, the creator and maker, who knows what He made, who knows what is good for His creations and what is bad, the one who possesses unlimited abilities, wisdom, mercy, might and knowledge, following his rules will never cause any harm or injustice for any of his creatures.
Where do we find our creator's rules and guidance?
If we put aside our self-deceit, arrogance, traditions, habits, ego and prejudice, I believe we will come to find that the message of Islam is the last and final message God sent to mankind, which has this complete set of rules and guidelines for a successful, prosperous and happy life on this earth and a better life in the hereafter.
Now, even though the Islamic system and way of life is for the best of all humanity, devout Muslims, as I believe, are not asking to apply it here in the U.S., where Muslims are less than 7 million. They are a minority. The fact is that they want to apply it in the Islamic countries where the majority are Muslims. But in those countries, today's selfish, arrogant and self-deceited kings, presidents and rulers want to apply their own self-invented rules only to serve their own interests and desires, denying their people the right to choose the system they all want. Devout Muslims, as I believe, are not asking to try or test the Koranic rules to see if it works for this society or not. Those rules, as I read in history, were implemented and applied from the time of the prophet Muhammed, peace be upon him, and for over 13 centuries, a government very successfully, almost half the known world then, during which the Islamic state was the strongest and most prosperous. For 13 centuries, the constitution was the one from our creator, the Koran.
To make the long story short, by the 20th century, the rulers started to neglect the Koranic laws, substituting them with manmade laws. The result is what we see today.
Muslim nations are the weakest, poorest and most miserable.
That is why, in my opinion, we find devout, committed Muslims, individuals and groups, working actively to reimplement God's rules and guidance.
For many years they tried to advise their rulers, urging them to apply God's rules in peaceful ways, but those rulers responded by using force and cruelty because they want to protect their positions as rulers while the whole nation is in misery.
Ultimately, some of those individuals and groups chose to have a conflict with those rulers. Others chose to migrate to other countries, such as the U.S., where they can spread the message of Islam freely and in the same time support their brothers and sisters who are continuing their efforts to apply God's rules in the Islamic countries.
All that was done while recognizing, as devout Muslims, that even in time of conflict, they should not exceed certain limits, harming innocent people or noncombatant ones.
This is very stressed upon in the Koran and the teachings of the prophet Muhammed, peace be upon him, who even prohibited destroying crops, animals or property at time of war.
Here, I would like to emphasize, as I did in the past, that committed Muslims follow God's rules and course, not individuals or groups. Those who chose to come to the U.S. were able to live and follow the teachings of their religion freely, spreading those teachings also freely, until Islam became the fastest growing religion in the U.S., as it is in the whole world, all praise be to God first, and to the tolerant, open society here.
I was one of those, came here first to go to college, and I admired the educational system here very much, graduated, got married, and got my citizenship. During all that time, I joined Islamic activities to spread the teachings of our creator, and also to support our brothers and sisters in Islamic countries in their efforts to apply the rules of God there.
I also did all that freely, without any objections from the government here. Moreover, on several occasions I had the chance to criticize our government's foreign policy towards Islamic countries. During all that, I maintained clean records everywhere I went.
Devout Muslims in Afghanistan, as in many other Islamic countries, were in conflict with the secular government there until they almost toppled it. At that point, the Russians invaded Afghanistan to prevent the establishment of an Islamic government. I went to Afghanistan, as did thousands of committed Muslims from all over the world, to support our brothers and sisters in their efforts to repel the Russian invaders, and which was also the policy of my adopted country here. My role was mainly in the relief and humanitarian field, considering my physical disability.
Ultimately, the Russians pulled out. But for several reasons, the Afghan leaders did not rule by Islamic laws. The result was four more years of civil war and misery in Afghanistan.
Finally, the Afghan scholars moved to contain the deteriorating situation and were supported by the majority of Afghan people in their efforts to establish an Islamic government. The result was peace, security and prosperity in most of Afghanistan.
I mentioned the Afghanistan experience as an example for what I believe to be the demand of the majority of Muslims in the world, that is, to be ruled by the constitution of our creator.
After having lived over 20 years in this country, I believe that God's rules, if adopted, can solve many problems that are devastating the American society.
Bottom line, God created, so he knows what is the best for all his creations. It is all in the Koran. Study it, know your creator, and follow his guidance. This is the way for a good life on this earth and the hereafter.
In Islam, as I have learned and believe, ends do not justify means. They both have to be legal and in accordance with God's rules and teachings.
When the bombings happened in Africa in '98, my opinion was that that action was extreme and not in accordance with the beliefs that I learned. I made my opinion clear well before I was arrested or charged. Today, my opinion is still the same towards what happened in Africa and what happened here last month. The killing of innocent people and noncombatant is radical, extreme and cannot be tolerated by any religion, principles, beliefs or values.
Today I can stand here and say that I did not participate or support any extreme conduct or any act that violates my beliefs as a devout Muslim, but please understand that my beliefs form my opinion that many American policies towards Muslim countries and people are wrong, such as the embargo on the Iraqi Muslim people which led so far to the death of over one million child and thousands of innocent people. Also, the unconditional support of the American government to the Israeli government that is killing innocent Palestinians, taking their land, expelling them and destroying their homes.
Perhaps the secular world do not understand the impact of having non-Muslim troops on the land of Muslims' holiest sites, its negative impact on Muslim masses around the world and specifically on those in the Arabian Peninsula.
Such policies, in my opinion, are wrong and end up breeding unjustified extremism. Those views of mine, I have expressed them publicly, not in secret, even in my interviews with government agents and the Grand Jury.
Many Muslims and non-Muslims have expressed the same views. That includes the American Muslim community, which I am a member of, which is free to voice its criticism to the American policy but without committing or supporting any extreme acts.
Now I will go to the last part of my word.
On September 16, '98, I was taken into custody after a Grand Jury testimony. As a citizen with clean records, family ties, and sound social relations, I was expecting to be released on bail so that I can prepare my defense against the tremendous charges in the comfort of my home with my family, friends and members of my community, as the law provides.
Even though I was considered by the law to be innocent, I was treated from day one like any other convicted killer, rapist, drug dealer or child molester, and even worse.
I was put under conditions that convicted prisoners who break the rules inside the prison are subject for.
This kind of treatment continued for 28 months before the trial date. During that whole time and under such cruel, inhumane conditions, I was expected to prepare for my defense, away from my home, family and community.
When an innocent person is treated worse than convicted criminals for such a long period, how do we expect his physical, mental and emotional condition to be? How do we expect his preparation for the trial to be? How do we expect him to be when he reaches the trial date?
Yes, the law says you are presumed innocent, but we will treat you worse than convicted criminals. That is exactly how I was treated since I was arrested.
In their representation, my counsel spent a great deal of their time and effort to get me out on bail so that I can be under normal conditions as the law provides. They knew from their extensive experience that this kind of legal case, that covers more than ten years of my life and extends to several continents, that they needed every proportion of assistance their client can provide.
During those 28 months, at times I was able to provide them with some assistance, other times it was too difficult to do so.
It is not fair, and I hope it will not happen to any other people, it is not fair to ask anyone to prepare his defense against such tremendous charges while being away from his family and loved ones and under onerous, unprecedented conditions for 28 months and another 5 months of trial time.
The government opposed my right for bail, saying that I was a danger to the community and that they will prove their allegations at the trial. Well, my records in the U.S. since 1978 shows the opposite of what they alleged then, and at the trial they did not bring one evidence or action showing me to be a danger to the community.
The jury found me guilty on every charge depending on what they saw and heard in court, but this does not change the fact that I am innocent and that I was not given a fair or just chance to prepare my defense.
Today, while I am here in front of you, I am not the same person who was arrested three years ago. No one can be the same after three years of unfair treatment. Yet, I am still and remain the devout Muslim who is following the rules of our creator, who can see and hear us all the time. I am still the person who avoids radical solutions and acts, as I did in the past. I am still the loving and caring son of my parents, husband of my wife, and father of my children who is trying to keep family relations through letters and phone calls.
Finally, I would like to thank my family, who supported me during the past three years and continuing to do so, to thank my counsel, who were very sincere and active in their representation in spite of the unusual limitations they were facing from the system, to thank all my friends, brothers and sisters in the Islamic society in all the United States who supported me and my family and continuing to do so, to thank the one witness who, in spite of the government agent's harassment to him, as to many other potential witnesses, he still took the witness stand in my behalf.
Again, I would like to thank the Court for giving me the opportunity to speak on my behalf. And for those who brought me to the Grand Jury under stressful, unusual conditions and those who lied on the witness stand at the trial, for all those I say that God will show them that they were wrong.
One last word. There is nothing wrong or shameful that I did to apologize for, and I hope that one day the truth will come out clear. If not in this life, then the day of judgment is the true court of justice, where the judge is God who knows what everyone hides in his or her heart.
We all are going back to God after death, so let us seek his teachings and guidance for a successful end.
Thank you.
THE COURT: Thank you.
THE COURT: Does the government wish to say anything?
MR. FITZGERALD: Yes, your Honor. Your Honor, it has long been a practice in this court that most times prosecutors do not speak at sentencing, and I did not intend to. I think most of the time we let people, no matter what they have done, pretend to love their country, pretend to love their god, pretend to be devoted to their family, and bite a lip and let it go quietly through the night. But in this case it is different, because in this case the crime, the horror of what Mr. El Hage and his associates did is beyond imagination, and the method by which Mr. El Hage did it was his pretense, his fraud, his pretension to being an American citizen and to following the rules.
He has talked today about choice, and I think one thing we should remember about choice is, Mr. El Hage made a lot of choices. He chose to work with Al Qaeda, he chose to work with a terrorist group, and he chose to lie to his government. In September of 1997, before Mr. El Hage ever went to the grand jury, he was brought to the government's office with an agent and myself. I recall quite clearly, the choice was put to him. He was told then that he was involved with Usama Bin Laden and the government knew it, that he knew the secrets of Usama Bin Laden, that Usama Bin Laden would kill Americans, would kill men, women and children, and it was up to him as an American, as a father and as a Muslim to help stop that. He was told that if he didn't cooperate, some day he might face jail. He would be separated from the family he now claims he wishes he could be with and he does, but he chose terror and hatred over his family. He chose to lie. He lied repeatedly. He lied that day. He lied in the grand jury. And he even lied under oath after the bombings in August of 1998.
We have heard here today from his counsel that he is honest and straightforward. We have heard that he is religious and devout. We have heard him just say now that he is a devout Muslim. I submit to you that though he does love his family, he chose hatred and terror over his family repeatedly. He had a choice, and he chose to go with those who would kill rather than to help himself, his family, his country. He claims to be a citizen but he is not an American.
He claims to be a religious man, but he is not a true Muslim.
The true Americans, the true Muslims, the true family men, he has seen. He saw them on the witness stand at the trial, he saw them testify here today, and, frankly, those are the people he helped to kill.
He has come into court today the way he came into the grand jury and into the trial, with no remorse, no shame, and no conscience. But he should leave without pretense. The world has now seen, from the evidence in this courtroom, what the jury saw, and what he did is, he betrayed his country, he betrayed his religion, he betrayed humanity by his behavior for so many years, and he should walk out of this courtroom, he should go to a jail cell that is really of his creation, and he should recognize that the world knows exactly what he did.
THE COURT: Thank you, Mr. Fitzgerald.
Mr. El Hage, I won't say anything with respect to your continued protestations of innocence because there was a five-month trial and the jury, after very careful deliberations, the nature of which I have already described, unanimously found you guilty beyond a reasonable doubt, and they did so based on evidence.
The court imposes a sentence of life imprisonment on Counts 1 and 3; 20 years' imprisonment on Count 5, concurrent to Counts 1 and 3; five years' imprisonment on each of Counts 20, 287 through 289 and 291 to 305, to run concurrently to Counts 1, 3 and 5.
Although the sentence is of life, I nevertheless impose five years' supervised release on Counts 1 and 3 and three years' supervised release on Counts 5, 287 to 289, and 291 to 305. The terms of supervised release are to run concurrently.
I order payment of a special assessment fee of $2,100, which is a mandatory assessment. I include you in the restitution order the contents of which we have already discussed today and yesterday. I impose no fine because of the restitution order.
I advise you that you have a right to appeal your sentence, your conviction and sentence, and if he is so instructed, the Clerk of the Court will enter a notice of appeal on your behalf.
I order dismissed any open counts in which you were named in any superseded indictments.
Is there anything further with respect to El Hage?
MR. KARAS: No, your Honor.
MR. SCHMIDT: No, your Honor.
THE COURT: We are adjourned.