John P. Cronan, Michael Ferrara, Nicholas J. Lewin, Assistant United States Attorneys Preet Bharara UNITED STATES ATTORNEY
Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC
Geoffrey S. Stewart, Zoe Dolan, Ashraf Nubani, Attorneys for Defendant Sulaiman Abu Ghayth
LEWIS A. KAPLAN, District Judge.
Before this Court are two motions - one by the government and one by defendant - to introduce testimony at trial from witnesses located abroad who allegedly refuse to travel to the United States to testify in person. The government proposes to introduce live testimony of a confidential witness ("CW") at trial through closed-circuit television ("CCTV"). Defendant seeks to take a Rule 15 deposition of Salim Ahmed Hamdan, who is believed to have been Usama Bin Laden's driver from approximately 1998 until November 2001.
I. The Government's Motion
The CW was arrested in the United Kingdom in 2003 and was convicted there of offenses relating to his participation in an al Qaeda plot to detonate a shoe bomb on a transatlantic airplane flight. He now has a cooperation agreement with the British government that, among other things, contemplates his assistance in investigations and trials in the United States. The CW has been indicted also in the District of Massachusetts on charges relating to the shoe-bomb plot, and the CW and United States Attorney's Office have been informed that the CW will be arrested if he travels to this country.
The CW allegedly will provide testimony demonstrating that Abu Ghayth " knowingly participated in al Qaeda's overall conspiracy to kill Americans." Specifically, the government asserts that the CW will testify that he was involved in a post-9/11 terrorist plot to bomb airplanes in the United States at approximately the same time as Abu Ghayth appeared in videos threatening that "the storm of the airplanes will not stop" and stating "as a word of advice and for emphasis, we strongly advise Muslims in America and the Britain, the children, and those who reject the unjust American policies-we advise them not to board aircraft."
The CW allegedly will testify further that he visited an al Qaeda training camp called Matar that Abu Ghayth also is alleged to have visited. The CW there claims to have "received urban warfare training" that included "training in assassination, weapons and explosives."
II. The Defendant's Motion
Hamdan now is a Yemeni resident who was imprisoned at Guantanamo Bay, Cuba for several years due to his relationship with al Qaeda and bin Laden. The defense asserts that Hamdan refuses to travel to the United States to provide in-person testimony at trial and most likely would not be permitted to travel to this country in any event.
Hamdan's proposed testimony, defendant claims, would show that Hamdan spent considerable time with Bin Laden and met Abu Ghayth on various occasions, but that he did not observe Abu Ghayth engage in any of the acts specified in the indictment and that he does not believe that Abu Ghayth swore an oath to or was a high ranking member of al Qaeda. In addition, Hamdan allegedly would testify that he never saw Abu Ghayth in possession of a brevity card, which apparently was used by al Qaeda and contains coded names and locations of certain individuals. The defense claims Hamdan that would testify that "the brevity cards included the names of some inner circle members and leaders of al Qaeda; some old ...