United States v. Ghayth

17 F.Supp.3d 289 (2014)

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Nature of the Case

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Facts

Usama bin Laden, the leader of al Qaeda until his death in 2011, orchestrated numerous terrorist attacks against the United States. In 1998, bin Laden and al Qaeda planned and executed bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, in which 224 were killed and over a thousand were injured. In 2000, they bombed the U.S.S. COLE in the port of Aden in Yemen. Bin Laden and other al Qaeda members orchestrated the attacks of September 11, 2001. D become involved with al Qaeda in the summer of 2001. In June 2001, he traveled to Afghanistan from his home in Kuwait, where he was a religious leader and teacher. D met with bin Laden six or seven times during the summer of 2001, knowing all the while that bin Laden was believed to be responsible for the Embassy bombings and the attack on the U.S.S. COLE. D denied having pledged bayat to bin Laden but did agree to help him as a religious scholar and orator. D gave speeches to men at al Qaeda training camps and spoke to a small group about the concept of giving bayat, explaining that pledging bayat to bin Laden would be the equivalent of pledging bayat also to Mullah Omar, the leader of the Afghani Taliban. Knowing that 'something big was going to happen' with al Qaeda and believing that he 'had something to offer in the time to come,' D returned to Afghanistan on September 7, 2001. Four days later, the World Trade Center and the Pentagon were attacked. D claims to have learned about the attacks after they occurred from the media. Later that night, a messenger dispatched by bin Laden arrived at the house to retrieve D. When he arrived at bin Laden's hideout, bin Laden claimed responsibility for the attacks. The two men talked late into the night. The next morning, D woke to find bin Laden flanked by Ayman al Zawahiri and Abu Hafs al Masri. Bin Laden invited D to join them and then asked him to help deliver al Qaeda's message to the world. C. D agreed and He, bin Laden, Zawahiri, and Abu Hafs then proceeded to make a video later published around the globe in which D offered justifications and praise for the September 11 attacks. D began to appear as an al Qaeda spokesperson in videos dated October 2001, and October 13, 2001. He also made several audio recordings in 2001 and 2002. Two of the videos contain language threatening the United States with a 'storm of airplanes.' D was captured and charged with conspiring to kill United States nationals. It alleged as an overt act that D gave a speech in which he threatened that ''the storms shall not stop, especially the Airplanes storm,' and advised Muslims, children, and opponents of the United States 'not to board any aircraft and not to live in high rises.'' D was on notice for many months prior to trial that KSM might possess information relevant to his defense. D sought access to detainees through the Department of Defense without success. D did not seek any assistance from the Court in securing access to those possible witnesses until February 2014, on the eve of the trial. The coexistence of D's 'storm of airplanes' threats with the shoe-bomb plot, it contended, would support the inference that D 'knowingly participated in al Qaeda's overall conspiracy to kill Americans.' On February 4, 2014, D moved to compel the Department of Defense to grant access to KSM for an interview. D insisted that they would send written questions to KSM. D drafted 452 questions. KSM never did answer D's 452 questions. D received thirteen pages of a fourteen-page narrative statement on March 13, 2014. KSM included one short paragraph in which he asserted that he never spoke with Abu Ghayth about the shoe-bomb plot and added that 'those tasked with giving statements to the media do not necessarily know all the details of an operation and are sometimes even unaware of the very existence of the operation.' D filed the first motion at issue here to take KSM's testimony by CCTV The court denied the motion. D testified he had no foreknowledge of the attacks. D renewed the motion to depose KSM.