hunting bin laden
Correspondance Between Attorneys

The two letters excerpted below concern the special conditions under which the bombing suspects, including Wadih El Hage, are being held. Defense attorney Michael Young objects to certain of the "Special Administrative Measures" applied to the defendants, especially those limiting communication with the media and the defendants' families.

U.S. prosecutors respond that the measures are necessary to prevent the suspects from engaging in terrorist activities while incarcerated.

home
introduction
who is bin laden
trail of evidence
two terrorists
interviews
Letter from Attorney Michael Young to Assistant U.S.  Attorney Patrick Fitzgerald (November 5, 1998):

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.

...

*******************************
Letter from Assistant U.S.  Attorney Patrick Fitzgerald to Attorney Michael Young (November 13, 1998)

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

home + introduction + who is bin laden? + trail of evidence + two terrorists + join the discussion
interviews + reporting from the times + links + press reaction + tapes & transcripts
frontline + pbs online + wgbh

web site copyright 1995-2014 WGBH educational foundation

SUPPORT PROVIDED BY

NEXT ON FRONTLINE

The Rise of ISISOctober 28th

FRONTLINE on

ShopPBS