United States District Court, S.D. New York
For Sulaiman Abu Ghayth, Defendant: John P. Cronan, Michael Ferrara, Nicholas Lewin, Assistant United States Attorneys, PREET BHARARA, UNITED STATES ATTORNEY; Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC; Geoffrey S. Stewart, Zoe Dolan, Ashraf Nubani.
Lewis A. Kaplan, United States District Judge.
Defendant Sulaiman Abu Ghayth, a spokesman for Usama bin Laden and al Qaeda in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon, was arrested abroad by U.S. authorities in 2013 and brought to this district. He ultimately was convicted by a jury of conspiring to kill United States nationals, conspiring to provide material support or resources, knowing or intending that they would be used in preparation for, or in carrying out, a conspiracy to kill United States nationals, and providing such material support or resources.
During trial, and after the government had rested, Abu Ghayth moved to take the testimony of Khalid Sheikh Mohammed (" KSM" ), who is detained as an enemy combatant at Guantanamo Bay, via live, closed circuit television (" CCTV" ) or, in the alternative, that his testimony be preserved through deposition pursuant to Rule 15 of the Federal Rules of Criminal Procedure. He argued principally that the so-called Richard Reid shoe-bomb plot played an important role in the government's case and that KSM could provide material, exculpatory evidence, viz. that Abu Ghayth did not have any foreknowledge of the plot. The Court denied the motion from the bench. Within hours of the denial, Abu Ghayth moved to renew and reargue. That motion too was denied from the bench. This opinion sets out the context of and bases for those rulings.
I. Al Qaeda and Abu Ghayth's Involvement
A. Early al Qaeda Attacks
As is well known, 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 injured. In 2000, they bombed the U.S.S. COLE in the port of Aden in Yemen. Most notably, bin Laden and other al Qaeda members orchestrated the tragic attacks of September 11, 2001 in which airplanes were hijacked and flown into the World Trade Center in New York and the Pentagon, killing thousands of Americans.
B. The Shoe-Bomb Plot
The World Trade Center and Pentagon attacks were only two of the contemplated al Qaeda terrorist attacks involving airplanes. " At the end of September or beginning of October 2001," it hatched the so-called shoe-bomb plot, which involved packing explosives into shoes to be worn by suicide bombers who would board civilian aircraft within or bound for the United
States, detonate the shoe bombs in flight, and kill themselves and all aboard. Abu Hafs al Masri, who then was responsible for al Qaeda's terrorist operations abroad and was the group's second in command, was in operational charge. He or others working with him recruited at least two such bombers -- Richard Reid and Saajid Badat. Abu Hafs, however, was killed in late 2001. KSM, who had been working in Pakistan, then took over. Badat and Reid traveled to Pakistan and discussed specific plans for executing the shoe-bomb plot with KSM. Ultimately, the plot failed. Badat backed out. And while Reid tried to go through with his part on December 22, 2001, his fellow passengers subdued him before Reid succeeded in detonating his bomb.
C. Abu Ghayth
Abu Ghayth appears to have become involved with al Qaeda in the summer of 2001 -- that is, after the 1998 Embassy bombings and the 2000 attack on the U.S.S. COLE, during the run up to the September 11, 2001 attacks, and the early stages of the shoe-bomb plot, but before September 11, 2001 and before the shoe-bomb plot was put in motion. In June 2001, he traveled to Afghanistan from his home in Kuwait, where he was a religious leader and teacher. Abu Ghayth admitted at trial that he 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. Although Abu Ghayth denied having pledged bayat (an oath of allegiance) to bin Laden, he admittedly agreed to help him as a religious scholar and orator. He gave speeches to groups of men at al Qaeda training camps and spoke to a small group at an al Qaeda guesthouse 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.
In the course of that summer, Abu Ghayth returned briefly to Kuwait to retrieve his pregnant wife and seven children. He resettled his family in Kandahar, but it did not long remain in Afghanistan. Abu Ghayth claimed that his wife was pregnant and needed medical treatment and that he therefore took her and his children to Pakistan. Allegedly unsatisfied with the care available there, he then sent them back to Kuwait on approximately September 5, 2001. Knowing that " something big was going to happen" with al Qaeda
and believing that he " had something to offer in the time to come," Abu Ghayth returned to Afghanistan on September 7, 2001, and did not accompany his family to Kuwait.
Four days later, al Qaeda suicide bombers flew hijacked airplanes into the World Trade Center and the Pentagon. Abu Ghayth claims to have learned about the attacks after they occurred from the media while staying at a Kuwaiti acquaintance's house in Kabul. Later that night, a messenger dispatched by bin Laden arrived at the house to retrieve Abu Ghayth. Bin Laden's driver drove Abu Ghayth for several hours from Kabul into the mountains of Afghanistan. When he arrived at bin Laden's hideout, bin Laden beckoned Abu Ghayth to speak with him and spared no time in claiming responsibility for the attacks. The two men talked late into the night. The next morning, Abu Ghayth woke to find bin Laden flanked by two of his senior deputies -- Ayman al Zawahiri and Abu Hafs al Masri. Bin Laden invited Abu Ghayth to join them and then asked him to help deliver al Qaeda's message to the world. Abu Ghayth admitted that he agreed, allegedly after some equivocation. He, bin Laden, Zawahiri, and Abu Hafs then proceeded to make a video later published around the globe in which Abu Ghayth offered justifications and praise for the September 11 attacks.
Following the September 12, 2001 video, Abu Ghayth appeared as an al Qaeda spokesperson in videos dated October 2001, October 9, 2001, and October 13, 2001, and made several audio recordings in 2001 and 2002. Two of the videos contain language threatening the United States with a " storm of airplanes." 
In the wake of the September 11 attacks, the U.S. military entered Afghanistan to combat al Qaeda and the Taliban. In the course of those operations, the military recovered several so-called brevity cards that were introduced into evidence. Some of those cards contain the name " Salman Abu Ghayth," which the government argued was a reference to Sulaiman Abu Ghayth. Of particular importance here, the brevity cards contain numbers for persons and places affiliated with al
Qaeda, such as " Sheik Usama" and " Al-Faruq Camp," and unaffiliated persons and places, such as " Amir Al-Mu'minyn" and " Al-Tayyib Agha."  Sergeant Major Karnes further testified to the fact that the brevity cards contain some words with no apparent relationship ...