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U.S. v. BIN LADEN

August 24, 2001

UNITED STATES OF AMERICA,
V.
USAMA BIN LADEN, A/K/A "USAMAH BIN-MUHAMMAD BIN-LADIN," A/K/A "SHAYKH USAMAH BIN-LADIN," A/K/A "ABU ABDULLAH," A/K/A "MUJAHID SHAYKH," A/K/A "HAJJ," A/K/A "ABDUL HAY," A/K/A "AL QAQA," A/K/A "THE DIRECTOR," A/K/A "THE SUPERVISOR," A/K/A "THE CONTRACTOR," MUHAMMAD ATEF, A/K/A "ABU HAFS," A/K/A "ABU HAFS EL MASRY," A/K/A "ABU HAFS EL MASRY EL KHABIR," A/K/A "TAYSIR," A/K/A "SHEIKH TAYSIR ABDULLAH," A/K/A "ABU FATIMAH," A/K/A "ABU KHADIJA," AYMAN AL ZAWAHIRI, A/K/A "ABDEL MUAZ," A/K/A "DR. AYMAN AL ZAWAHIRI," A/K/A "THE DOCTOR," A/K/A "NUR," A/K/A "USTAZ," A/K/A "ABU MOHAMMED," A/K/A "ABU MOHAMMED NUR AL-DEEN," MAMDOUH MAHMUD SALIM, A/K/A "ABU HAJER AL IRAQI," A/K/A "ABU HAJER," KHALED AL FAWWAZ, A/K/A "KHALED ABDUL RAHMAN HAMAD AL FAWWAZ," A/K/A "ABU OMAR," A/K/A "HAMAD," ALI MOHAMED, A/K/A "ALI ABDELSEOUD MOHAMED," A/K/A "ABU OMAR," A/K/A "OMAR," A/K/A "HAYDARA," A/K/A "TAYMOUR ALI NASSER," A/K/A "AHMED BAHAA ELDIN MOHAMED ADAM," WADIH EL HAGE, A/K/A "ABDUS SABBUR," A/K/A "ABD AL SABBUR," A/K/A "WADIA," A/K/A "ABU ABDULLAH AL LUBNANI," A/K/A "NORMAN," A/K/A "WA'DA NORMAN," A/K/A "THE MANAGER," A/K/A "TANZANITE," IBRAHIM EIDAROUS, A/K/A "IBRAHIM HUSSEIN ABDELHADI EIDAROUS," A/K/A "DAOUD," A/K/A "ABU ABDULLAH," A/K/A "IBRAHIM," ADEL ABDEL BARY, A/K/A "ADEL MOHAMMED ABDUL ALMAGID ABDEL BARY," A/K/A "ABBAS," A/K/A "ABU DIA," A/K/A "ADEL," FAZUL ABDULLAH MOHAMMED, A/K/A "HARUN," A/K/A "HARUN FAZHL," A/K/A "FAZHL ABDULLAH," A/K/A "FAZHL KHAN," MOHAMED WEST PAGE 671 SADEEK ODEH, A/K/A "ABU MOATH," A/K/A "NOURELDINE," A/K/A "MARWAN," A/K/A "HYDAR," A/K/A "ABDULLBAST AWADAH," A/K/A "ABDULBASIT AWADH MBARAK ASSAYID," MOHAMED RASHED DAOUD AL-`OWHALI, A/K/A "KHALID SALIM SALEH BIN RASHED," A/K/A "MOATH," A/K/A "ABDUL JABBAR ALI ABDEL-LATIF," MUSTAFA MOHAMED FADHIL, A/K/A "MUSTAFA ALI ELBISHY," A/K/A "HUSSEIN," A/K/A "HUSSEIN ALI," A/K/A "KHALID," A/K/A "ABU JIHAD," KHALFAN KHAMIS MOHAMED, A/K/A "KHALFAN KHAMIS," AHMED KHALFAN GHAILANI, A/K/A "FUPI," A/K/A "ABUBAKARY KHALFAN AHMED GHAILANI," A/K/A "ABUBAKAR KHALFAN AHMED," FAHID MOHAMMED ALLY MSALAM, A/K/A "FAHAD M. ALLY," SHEIKH AHMED SALIM SWEDAN, A/K/A "SHEIKH BAHAMADI," A/K/A "AHMED ALLY," DEFENDANTS.



The opinion of the court was delivered by: Hon. Leonapd B. Sand, U.S.D.J.

OPINION

The Seventh Superseding Indictment in this case alleges that Mamdouh Mahmud Salim is a high-ranking participant in a global terrorist conspiracy that seeks, inter alia, to kill United States nationals and destroy United States property.*fn1 Presently before the Court is a motion by Salim to suppress all custodial statements he gave in Germany during interrogation by German and United States law enforcement officials. For the reasons set forth below, Salim's motion to suppress is denied in its entirety.

I. PROCEDURAL HISTORY

Salim filed the instant motion to suppress on June 14, 2000. The Government submitted its opposition on August 28, 2000, and Salim replied on September 6, 2000. An evidentiary hearing was held on October 18-20, 2000, during which five witnesses and the Defendant testified.*fn2 Post-hearing briefs from both parties were received by the Court on November 3, 2000.

A separate series of events involving Salim unfolded beginning on November 1, 2000, an effect of which was to delay until recently the Court's ability to rule on Salim's pending suppression motion. On that date, a federal corrections officer at the Metropolitan Corrections Center (the "MCC") was gravely injured in a violent attack allegedly perpetrated by Salim and Khalfan Khamis Mohamed, another defendant in this case. Two of Salim's three appointed attorneys at the time of the suppression proceedings — Paul J. McAllister and Charles D. Adler — had been in the middle of a client visit with Salim at the very moment of the attack.*fn3

Four days later, the Government informed the Court that it intended immediately to pursue independent criminal charges against Salim with respect to the MCC attack, and that Messrs. McAllister and Adler would almost certainly be called as Government witnesses at that separate trial. A clear conflict of interest thus arose wherein Messrs. McAllister and Adler were to represent Salim in the terrorism conspiracy case before this Court, while at the same time they might be required to testify against Salim in a concurrent prosecution. Accordingly, at a sealed hearing on November 8, 2000, the Court relieved Messrs. McAllister and Adler of their duties,*fn4 and ultimately Allan P. Haber — who remains Salim's counsel to date — was assigned in their place. And because new counsel would not be ready for trial on the terrorism conspiracy charges by January 2001, the Court additionally acted to sever the trial of Salim from that of the four other defendants in this case. *fn5

To afford Attorney Haber an opportunity to become familiar with his client and the voluminous discovery materials, and in light of the Court's February 16, 2001 rulings concerning the suppression motions of the other defendants in this case,*fn6 the Court sought new briefing on Salim's still-pending motion to suppress. Salim thus submitted a Supplemental Memorandum of Law on May 7, 2001, to which the Government responded on June 29, 2001. The motion became fully submitted upon the Court's receipt of Salim's reply papers on July 20, 2001.

II. FINDINGS OF FACT

The Arrest

1. On September 14, 1998, in the Southern District of New York, a criminal complaint was filed against and an arrest warrant issued for Defendant Salim.*fn8 At that time, because there was reason to believe that Salim was physically present in Munich, Germany, a request was made by the United States to German authorities for the immediate arrest and extradition of Salim.
2. S.A. Karniewicz of the New York-based FBI Joint Terrorism Task Force and Kenneth M. Karas, an Assistant United States Attorney ("AUSA") in the Southern District of New York, arrived in Munich on September 16, 1998 in order to aid in Salim's capture. Hours after their arrival, they learned that Salim had in fact already been arrested by German law enforcement that very same day.
3. The German authorities' arrest and subsequent investigation into Salim was led by Inspectors Folger and Franzke of the BLKA. Matters commonly within the investigatory jurisdiction of the BLKA include terrorism, illegal explosives, narcotics, and organized crime. At the outset, the BLKA regarded and treated Salim as a suspected terrorist who, alone or with others, might have already committed domestic violations of German criminal law.
4. At approximately 4 p.m. on September 16, 1998, Salim was arrested by the BLKA as he arrived at a car dealership situated near the Munich International Airport. Salim was taken into custody and transported forthwith to a police station located inside the airport. No questioning of Salim occurred during this period.
5. En route from the car dealership to the airport, Inspector Folger acted on his own initiative to search the apartment where Salim had been staying while in the Munich area.
6. S.A. Karniewicz and AUSA Karas were joined in Germany by FBI Special Agent Richard F. Tamplin, Assistant Legal Attache assigned to the United States Embassy in Bonn. These three individuals comprised the entirety of the American contingent involved in Salim's arrest and interrogation in Germany, and all three were present at the airport police station by the time that Salim and the BLKA inspectors arrived from the car dealership.
7. At the airport police station, Salim's luggage and personal belongings were searched by both the BLKA and the three American officials.
8. After some initial processing but still without any questioning, Salim was transported to BLKA headquarters in Munich. All interviews of Salim by law enforcement were to be conducted at that site.

The September 16 Session and the German Advice of Rights

9. The first interview of Salim commenced immediately upon his arrival at BLKA headquarters; the session lasted from 9:30 p.m. on September 16 until 12:30 a.m. on September 17.
10. For the first two hours, Inspectors Folger and Franzke conducted the interview with no Americans present.
11. The BLKA inspectors always posed their questions to Salim in German. Dr. Atallah — a freelance interpreter with special professional experience in German criminal matters — provided German-Arabic translation services at all times. There were no complaints of communication difficulties with Dr. Atallah, and the Court has no reason to believe that Dr. Atallah executed his interpretive duties with anything less than the utmost competence and accuracy.
12. The BLKA inspectors began the interview by informing Salim that he had been arrested pursuant to an American warrant, that the Americans sought his extradition to the United States, and that he had been charged in an American criminal complaint with conspiracy to murder U.S. citizens*fn9 and conspiracy to use weapons of mass destruction.*fn10
13. Salim was then presented with a German-language document containing Germany's standard Advice of Rights ("AOR"), which Dr. Atallah orally translated into Arabic for Salim (a task Dr. Atallah had done hundreds of times before). The ...

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