Re: United States v. Bin Laden et al., S(2) 98 Cr. 1023 (LBS)
Dear Mr. Fitzgerald :
As we discussed last Tuesday, defense counsel in the above captioned case have
a number of concerns regarding the conditions to which our clients and
ourselves are being subjected at the New York Correctional Center. In
particular, we object to the Special Administrative Measures (hereinafter
"SAM") which were issued regarding our clients on or about October 22, 1998.
During the more than ten weeks since our clients arrived at the MCC, they have
been continuously housed on 10 South, the most restrictive housing unit in the
facility. There, they are confined under conditions that are considerably more
depriving than any that have witnessed in my 27 years of federal criminal
practice.
Most of the persons detained at MCC, and especially the pre-trial detainees are
housed in units with common areas where they can socialize with other
detainees, play pool, watch TV, exercise etc. They are permitted to travel to
the roof several times a week to exercise outdoors or just get some fresh air.
On 10 South, on the other hand, except for occasional "exercise" in a
completely barren room which the staff has nicknamed the "rat cage" our clients
are locked up twenty-four hours a day in total isolation inside frequently
windowless cells.
Most pre-trial detainees, and even convicted defendants, have unlimited access
to pay phones to call loved ones, friends and their lawyers. Our clients, on
the other hand, are denied any phone calls because, they are told, there is
only one phone for such calls on 10 South and it is continuously broken. Even
if that were not the case, however, our clients are limited to only three
non-legal calls a month which can be made only to their spouses (in the case of
defendant Odeh and El-Hage) or their parents (in the case of defendant
Al-Owhali) and which are subject to such extreme pre-conditions that few if any
of those calls go through. To the best of my knowledge, as of the date of this
letter, only one defendant - El-Hage - has been permitted one such phone call
in the ten weeks that they have been at MCC.
Most persons detained at MCC, whether pre-trial or convicted, are assigned case
managers and counselors to help them address their concerns at the institution
- our clients are not. Most persons detained at MCC are permitted to meet with
their attorneys in soundproof rooms that respect their right to attorney-client
confidentiality - our clients are not. Most persons detained at MCC are
permitted to attend co-defendant meetings to discuss joint legal issues, or
when appropriate, to prepare common defenses - our clients are not. Most
persons detained at MCC are permitted to communicate with their attorney's
staff, as well as experts and others involved in preparing their defense - our
clients are not. Most persons detained at MCC are permitted visits without
prior written notification, they are permitted to have more than one visitor at
the time and they are permitted to have such visits under "contact" conditions
- our clients are denied all of these basic amenities.
In short, we feel strongly that our clients are being denied fundamental
constitutional rights - including their rights to effective assistance of their
counsel, to prepare a defense to free speech and association - to which they
are clearly entitled particularly since they are pre-trial detainees. They are
also being denied the guarantee of 18 U.S.C. § 3005 that defendants in
capital cases be afforded free access to their attorneys at all reasonable
hours and that they be allowed to prepare a full defense to the serious charges
against them.
Moreover, we are concerned that the onerous conditions under which our clients
are being held - both the prolonged "administrative detention" to which they
have been subjected since their arrival at MCC and now the SAM corrections -
have been imposed summarily, without any sort of hearing or due process to
insure that they are justified.
I will now address the SAM provisions which concern us seriatim:
¶ 2. " Inmate Communication Prohibitions" This section prohibits
our clients from having any communications with any other inmates or undefined
"others". From a legal standpoint, it precludes a defendant from engaging in
procedures fundamental to the preparation of a defense such as drawing a
diagram for his attorney, or making notations on a document for the attorney to
consider. Socially, it places our clients under conditions of isolation so
severe that their psychologically deterious effect can hardly be
underestimated.
As far as the legal matters are concerned we believe that our clients should be
permitted to draw diagrams, make notes and otherwise participate in the
preparation of their defense to the same extent as all other pre-trial
defendants. They should also be permitted to attend co-defendant meetings if
such are determined to be desirable.
Socially, we believe that our clients should be housed in a normal pre-trial
unit and allowed all of the socialization afforded to pre-trial defendants in
that setting. Failing that, they should at least be permitted to socialize with
their co-defendants and possibly others housed in their unit.
...
¶ 4. "Use of Interpreters/ Translators"
...
¶ 4 (b) "Visits - English Requirement" - This provision prohibits a
non-English speaking defendant from having a social visit unless an FBI/BOP
approved translator is available to monitor the visit. This requirement is not
imposed on any other pre-trial detainees. It is extremely intrusive and creates
the likelihood that social visits will be precluded altogether because such
interpreters are not available.
...
¶ 5. "Inmate Telephone Contacts"
We object several of this section's restrictions. As we explained previously,
we believe that our clients should be afforded the same phone privileges
afforded to other pre-trial defendants at MCC.
Legal Phone Calls - ... It is essential for us to be able to "patch in"
approved interpreters to tell us what our clients are saying. It is likewise
essential to the preparation of a defense that we be free when we deem it to be
desirable to permit any such phone calls to be overheard by others who are
involved in the preparation of the defense - ie; paralegals, experts, potential
witnesses etc. It is likewise essential to the preparation of a defense that we
be permitted to divulge the contents of our phone conversation with our clients
to others involved in the preparation of a defense. Finally, we should be free
to preserve the contents of any such phone conversation in any manner which we
deem necessary to the preparation of a defense.
Non-legal phone calls - According to this section defendants Odeh and
El-Hage may make calls only to their spouses and defendant Al-Owhali, who is
not married, may call only his parents. This sort of severe restriction on
social contact is completely unreasonable, especially in light of the extreme
isolation under which these defendants are being held. Since defendant
Al-Owhali is permitted to call his parents, there is no logical reason for
denying defendants Odeh and El-Hage from likewise calling their parents.
Likewise there is no logical reason for preventing defendants Odeh and El Hage
from speaking over the phone to their young children. Given the fact that the
records and monitors all such phone calls ... there is absolutely no
justification for these prohibitions.
...
7. Visits
Non-legal visits - We believe that like other pre-trial defendants at
MCC, our clients should be free to visit with any persons, family or otherwise,
who are approved by the BOP. Such approval cannot be unreasonably withheld or
limited to certain categories of persons (i.e.. immediate family). Once a
potential visitor is approved, he should be placed on the detainee's visitors
list and permitted to visit without advance notice. Although we do not object
to visiting under the supervision of a guard who is out of hearing range in the
visiting room, we believe that our clients, like other MCC detainees, should be
permitted to carry on private conversations with their approved visitors in a
contact setting and that they should be allowed if the occasion presents
itself, to be visited by more than one person at a time.
Legal visits - We believe that it is essential to our clients
fundamental constitutional rights that we, like other attorneys visiting their
pre-trial defendants at MCC, be permitted contact visits in a soundproof room
with a table.
8. Communication with news media - We believe that we and our clients
have a fundamental constitutional right to communicate with the news media.
To the best of my knowledge, the severe restrictions at issue here have in the
past only been applied to a few convicted defendants who have taken advantage
of less severe conditions of confinement to commit crimes while they were
incarcerated. The application of such onerous conditions of confinement on
pre-trial detainees such as our clients who have not been shown to have
committed or attempted to commit any crimes while incarcerated under less
severe conditions is clearly both unjustified and unconstitutional.
...
Re: United States v. Bin Laden et al., S(2) 98 Cr. 1023 (LBS)
Dear Mr. Young:
I write in response to your letters of November 5, 1998, and November 11, 1998,
concerning the conditions of confinement of the three defendants in the
above-captioned case and, in particular, the restrictions imposed by the
Special Administrative Measures ("SAM"). I have reviewed your letters and have
a number of suggestions as to how we may be able to modify the SAM restrictions
so as to accommodate counsels' need to prepare your clients' defenses. As set
forth below, however, a number of your requests cannot be agreed to because
there is strong reason to believe that such changes could allow the defendants
to instigate acts of violence.
The Defendants' Backgrounds
The SAM was imposed pursuant to law (28 C.F.R. 501.3) (copy attached) for valid
security reasons. It needs to be candidly recognized up front that these
defendants are not like "most persons detained at MCC" to which your letter
makes frequent comparison. Unlike "most persons detained at MCC," two of the
defendants have been charged with the capital crime of murdering 224 people.
Each of the defendants has been closely tied to the activities of the al Qaeda
terrorist organization, whose openly avowed goal is the slaughter of American
civilians anywhere in the world they can be found. As set forth in the
Indictment, the al Qaeda organization is responsible for the killing of United
States military personnel in Somalia and hundreds of civilians in the August 7,
1998, bombings in Kenya and Tanzania. Al Qaeda has also sought to obtain
nuclear and chemical weapons and trains its operatives in intelligence
techniques.
As defendant Mohamed Rashed Daoud al-'Owhali himself admitted, he was trained
in a number of camps in Afghanistan, including a number of camps affiliated
with al Qaeda. While in the Afghanistan camps, he was trained in weapons,
explosives, hijacking, kidnapping, special operations and intelligence.
Al-'Owhali specifically admitted receiving training in how to seize and take
buildings. Al-'Owhali admitted reconnoitering the American Embassy in Nairobi
on August 4 and then travelling in the vehicle donating the bomb to the Embassy
on the morning of August 7 and tossing a grenade-like device at a guard
stationed at the Embassy. He also admitted that the operation was supposed to
be a "martyrdom" operation, in which he planned to kill himself.
...[REDACTED]
Moreover, your client, Mohamed Sadeek Odeh, admitted that he was trained in a
number of camps affiliated with al Qaeda, ...[REDACTED]... Odeh admitted that
at the camps he received advanced training in explosives. Odeh has admitted to
extensive travel and the use of false passport ... [REDACTED]...
Odeh admitted that he believed that the Embassy bombings were carried out by al
Qaeda, and that, as a member of al Qaeda, he accepted responsibility for the
duties with al Qaeda, he trained Islamic fighters in Somalia who were opposed
to the United Nations forces in Somalia. As set forth in the Indictment, it
was persons who received training from al Qaeda (or from trainers, in turn,
trained by al Qaeda) who killed the 18 military men in October 1993.
Further, defendant Wadi el Hage has admitted serving at the personal secretary
of Usama Bin Laden while Bin Laden and el Hage lived in the Sudan and has also
admitted being familiar with Bin Laden's ranking military commanders, Abu
Ubaidah al Banshiri and Abu Hafs el Mastry. The evidence set forth in the
complaint and the indictment makes clear that el Hage has led a life of
deception ... including acting as a front for a terrorist organization, and
corrupting the judicial process of this country by lying repeatedly to the FBI
and the grand jury. Moreover, as set forth at an earlier bail proceeding (for
which a copy of the transcript is attached), el Hage has admitted meeting with
a person who surveilled an Islamic preacher in Arizona, and that preacher was
assassinated shortly thereafter in 1990. Moreover, el Hage has admitted
acquiring firearms for the use of Mahmud Abouhalima, later convicted of bombing
the World Trade Center. In addition, el Hage admitted coming to the Alkifah
Refugee Center in Brooklyn in 1991 to take over temporary control from one
Mustafa Shalabi, on or about the day that Shalabi was murdered. In the 1990's
in the Sudan, el Hage served as the personal secretary to fugitive co-defendant
Usama Bin Laden, who is as dangerous to American interests as any man in the
world. While in Kenya in 1994 and thereafter, el Hage maintained contact with
Bin Laden's military commander, Ubu Ubaidah al Banshiri, and was intimately
associated with Fazul Abdullah Mohamed ("Harun") who worked for el Hage, used
el Hage's computer and often lived in el Hage's house. "Harun" was the
principal executioner of the Nairobi bombing and is now a fugitive. A search
conducted subsequent to the bombings indicated that el Hage had engaged in
coded correspondence with other persons affiliated with al Qaeda.
In light of the foregoing, it is entirely reasonable for the Government to
conclude that the defendants--each intimately involved with the conduct of a
terrorist organization which trains its members in intelligence techniques--are
not like "most persons detained at M.C.C." and that prudent prophylactic
measures need be taken.
Prison Security Concerns
It also must be understood that there is an ability for MCC detainees--even
those who receive the expected extra scrutiny afforded someone charged with a
terrorist crime--to engage in dangerous conduct while in custody. The public
record of the trial of the World Trade Center bombing revealed that Ahmad
Ajaj--while incarcerated in the M.C.C. and elsewhere following a trip from Camp
Khaldan, a camp where al-'Owhali later attended--made telephone calls seeking
to aid the persons involved in the then ongoing World Trade Center bombing
plot. Ajaj, using a third-party "social contact" was patched through to the
mastermind of the World Trade Center bombing, Ramzi Yousef. During these
patch-through calls, the participants spoke in Arabic and used coded
references. Ajaj attempted to arrange for Yousef to pick up Ajaj's bomb-making
materials. Although the calls were subject to monitoring and recording, it was
not possible to decipher the true import of these conversations. Two months
after one of these conversations, the World Trade Center was bombed, six people
were killed and more than a thousand were injured. Indeed, a jury later found
Ajaj culpable for the bombing notwithstanding his imprisonment for most of the
six (6) months preceding the bombing. On another occasion, one pre-trial
detainee, Wali Khan Amin Shah, was convicted of attempted escape after he
managed to climb to the unsecured portion of the roof of the M.C.C., despite a
mangled hand. Some additional facts concerning M.C.C. security are set forth
in a sealed letter furnished to the Court and counsel contemporaneously
herewith. While the Government does not seek to blame the defendants for the
conduct of other associated persons, we do have to recognize that experience
has taught us that the ordinary prison rules are simply not adequate when
attempting to prevent persons with the same training and motivation as these
three defendants from doing harm. Instead, we must take all reasonably prudent
measures to prevent further acts of violence.
With these facts in mind, the restrictions imposed on the defendants--who are
readily distinguishable from "most other detainees"--were an attempt to balance
the defendants legitimate needs with the obligation of the Government to
protect against further violence by the defendants and their associates.
Nonetheless, having the benefit of the concerns expressed by you and your
co-counsel in the November 5, 1998, and November 11, 1998, letters, the
prosecution team is amenable to proposing changes to the SAM. I set forth
below our responses to specific categories of your November 5, 1998, requests
for changes.
I. Attorney Visits:
Attorney Access
The Warden advises that defense counsel has always had, and will continue to
have, access to their clients 24 hours per day, 7 days per week. However, the
attorneys should advise the M.C.C. in advance of any visit which will begin
before 8 a.m. or will conclude after 10 p.m. Attorneys will, of course, still
be subject to necessary delays during counts, controlled moves, or incidents
within the M.C.C.
Joint Defense Meetings:
The Government would propose amending the SAM to allow for joint defense
meetings, provided that the attorneys are present with pre-cleared translators
who shall translate all conversation between defendants. The presence of at
least one attorney will assure that the defendants meet for the purpose of
preparing their defense; the presence of the translators will assure that
conversations between defendants are translated so that counsel are aware of
what is being discussed...
II. Telephone Calls:
Staff Participation in Telephone Calls:...
You also state in your letter that:
[i]f my client calls me, ... I must be free to "patch-in" an approved
interpreter to tell me what he is saying. Otherwise, you are effectively
precluding a defendant from ever speaking to his attorney by phone.
First, it must be noted that your claim is overstated. Your client speaks
English, notwithstanding his desire now to avail himself of an interpreter in
Court. In any event, BOP rules do not allow anyone to patch calls through.
One security measure that BOP maintains is a record of telephone calls made--a
record which is defeated if the security system is bypassed. This is a
particularly acute problem if the call patched through is an attorney call
which is not monitored. As noted above, patch through calls were specifically
used by the persons involved in the World Trade Center bombing to help further
the plot.
As to defense experts and "potential witnesses," there is a serious concern
that allowing for calls to an attorney to be overheard by others could open a
giant hole in the security measures, particularly if the conversation is in a
foreign language involving a possible co-conspirator from a foreign country. I
would suggest that we amend the SAM to allow experts or potential witnesses to
overhear such calls only if: (I) there names are cleared by the Government;
(ii) an attorney is present for, and participating, in the call in the same
room as the witness/expert; and (iii) any conversation not taking place in
English is being translated contemporaneously for counsel by a cleared
translator. We anticipate that there will be potential witnesses (or even
experts) whose names you do not wish to share with the Government and would
propose setting up a "firewall": an FBI agent who will not participate in the
investigation or prosecution of the case who could yet those proposed names for
security reasons and would not provide the names to the prosecution
team...
Social Calls to Family:
The Government does not object to social calls to immediate family members
(to wit, parents, children and spouses) once the phone number provided is
verified. These calls are, of course, subject to either monitoring and/or
recording. If the participants are not to speak English, they should speak
Arabic and provide advance notice to BOP of the call so that an interpreter can
be arranged to be present to explain the SAM restrictions and to monitor the
call. The calls will be terminated if the callers speak in a language other
than English (or Arabic if the interpreter has been scheduled to assist). As
with other detainees, the calls will be made at the detainee's expense.
Frequency:
The Warden advised that it is Bureau of Prisons policy that detainees housed
in administrative detention, such as the three defendants in this case, are
entitled to one telephone call every 30 days. The SAM now specifies that the
frequency of calls should be in accordance with BOP policy. Accordingly, the
defendants--together with the other roughly 57 inmates in administrative
detention--will receive one telephone call every 30 days.
III. Social Interaction:
In light of the evidence of your clients' involvement in violence against
American interests, the Government cannot agree to your request that the
defendants be given the same free contact with other inmates or visitors that
they would have if they were in the M.C.C. because of a credit card offense.
Similarly, to allow the defendants to freely socialize among themselves without
an officer of the Court present, or to allow unrestricted contact visits with
persons designated on a visitor list without advance notice of the visit, would
be completely irresponsible...
V. Media
The Government opposes unrestricted access to the media for defendants who
have been charged with participating in an organization whose avowed goal is to
massacre American civilians. As set forth in the Indictment, one of the
methods al Qaeda and Usama Bin Laden have used to disseminate calls for
violence has been the media. In particular, defendant al-'Owhali has admitted
participating in the production of a "martyrdom" video in which would have been
broadcast go glorify his "martyrdom" to the world, in the hope that other
suicide bombers would follow suit. Thus, al-'Qwhali and his co-defendants are
very much unlike "most persons detained at the MCC." However, the Government
would propose as a practical matter that counsel's objection to the media
restrictions be noted and the parties litigate the issue if, as, and when the
conflict becomes real. Thus, if a media organization requests access, and the
defendant wishes media access to which the Government does not consent, the
matter can then be litigated.
VI. Miscellaneous
General Housing Conditions:
A first-hand inspection of the area where the defendants are housed revealed
the area to be secure but not "inhumane." The defendants have individual cells
with private showers. "Most other detainees" in the Special Housing Unit share
showers with up to 16 other inmates. Moreover, "most other detainees" in
general population share communal shower facilities with up to 20 other
inmates. Moreover, I am completely at a loss as to how the defendants' cells
were described in your November 5, 1998, letter as "frequently windowless."
(Letter at p. 1) The cells each have windows. If that fact remains in
dispute, the Government will suggest that Judge Sand be invited to visit the
facility...
Case Manager:
The Warden advises that inmates on 10 South have been assigned to both a
counselor and a case manager. I understand that the counselor, who is required
to place calls, works a late shift at least one day each week. Thus, it is
possible for al Hage to schedule his social calls on the counselor's late night
if he wishes to make calls in the evening (up until approximately 8 p.m.)
rather than the morning or afternoon...
Roof Exercise:
The warden has advised that due to the security concerns regarding the
defendant's presence in the M.C.C. and the defendants' ties to the al Qaeda
organization, heightened security inside the M.C.C. and in the surrounding area
has been implemented. Roof recreation will not be made available to the
defendants for reasons of security...
Conclusion:
The Government is willing to change the SAM as discussed to facilitate the
preparation of the defense. However, we cannot make all the changes you
requested. We cannot run the risk of treating detainees whom a considerable
amount of evidence indicates are terrorists with intelligence training
affiliated with an international terrorist group openly dedicated to the
slaughter of American civilians worldwide as "most other pre-trial detainees."
The stakes are simply too high.
Very truly yours,
Mary Jo White
United States Attorney
By: Patrick J. Fitzgerald
Assistant United States Attorney
CC: Ron, Leonard B. Sand
Bruce McIntyre, Esq.
Leonard Joy, Esq.
Warden Dennis W. Hasty
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