Former bin Laden aide seeks new trial
Man linked to embassy bombings says evidence suppressed
From Phil Hirschkorn
CNN
NEW YORK (CNN) -- A judge has suggested that federal authorities have stonewalled efforts to learn whether evidence had been improperly suppressed for a man convicted in connection with al Qaeda's 1998 bombings of U.S. embassies in Kenya and Tanzania.
U.S. District Judge Kevin Duffy is considering the appeal of Wadih el Hage, 44, a former personal secretary to Osama bin Laden. El Hage and three other men were convicted in a 2001 jury trial stemming from the dual truck bombings that killed 224 people, including 12 Americans, and injured thousands.
El Hage appeared in court for a hearing Thursday for the first time in more than three years since being convicted of conspiring to commit acts of terrorism. He is serving a life sentence in the super-maximum security prison in Florence, Colorado.
Trial evidence demonstrated that el Hage, a naturalized American from Lebanon, was a facilitator of al Qaeda's East Africa cell when he lived with his wife and children in Nairobi in the mid-1990s. He did not have a direct role in the bombings.
At Thursday's hearing, Duffy grilled the head of the U.S. Marshals Service and its chief legal counsel over the post-trial discovery of videotapes of the government's star witness, Jamal Al-Fadl, talking to prosecutors and FBI agents.
Al-Fadl, 41, a Sudanese who defected from the terrorist group al Qaeda in 1996, is in the U.S. witness protection program run by the marshals, a branch of the Justice Department.
Al-Fadl's testimony undermined el Hage's contention that his work for bin Laden in Sudan in the 1990s was for lawful companies founded by the Saudi exile. Al-Fadl told the jury el Hage was a paid member of al Qaeda who handled its payroll and described seeing him with militants.
Defense attorneys are seeking a retrial because of the government's failure to disclose 28 hours of tape of 17 teleconferences between prosecutors and FBI agents and Al-Fadl. Twelve occurred before or during the trial.
The U.S. attorney for the Southern District of New York turned over transcripts to defense counsel in February 2003, 15 months after el Hage was sentenced.
El Hage's attorneys argue that Al-Fadl was "puffing," or exaggerating his role and knowledge of al Qaeda, on the tapes, and offering recollections that differed from his trial testimony. They say with access to the tapes, they could have used the information to impeach Al-Fadl during cross-examination.
Assistant U.S. Attorney Leslie Brown told Duffy during Thursday's hearing that her office did not learn of the tapes' existence until early 2002 and did not receive a detailed report from the marshals explaining them until this week.
Gerald Auerbach, attorney for the marshals, testified that report was sent in 2002 to Steven T'kach, associate director of enforcement operations in the Justice Department's Criminal Division in Washington, which handles contacts between the marshals and the 94 U.S. attorney's offices.
Auerbach said T'kach approved the videoconferencing. Participants in the sessions told CNN they did not know about the taping.
"No one knew these were taped except the deputy marshal who did the recording," Auerbach testified. "If his boss knew about it, he shouldn't have allowed it to occur."
Auerbach said the tapes sat in a field office throughout the trial, and he did not become aware of them until May, when "corrective action had been taken."
Duffy asked Benigno Renya, chief of the marshals service, to find out who authorized the taping and how the tapes were discovered.
"Somebody had to know about it," Duffy said. He suggested the marshals had "stonewalled ... needlessly" until now.
Duffy last week rejected el Hage's grounds for a new trial, except one -- the tapes -- until he resolves the probe. The judge plans additional hearings.
For el Hage's appeal to succeed, Duffy must find the government deliberately suppressed or ignored the tapes. If the failure to disclose was inadvertent, el Hage could win only if the judge deems the tapes could have created conviction-avoiding reasonable doubt.
"The judge has taken responsibility for finding the facts," said Sam Schmidt, an attorney for el Hage. "He doesn't have confidence that the Justice Department will do so because it appears they have stonewalled for at least three years."
