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United States v. Fawwaz

United States District Court, S.D. New York

February 19, 2015

UNITED STATES OF AMERICA,
v.
KHALID AL FAWWAZ, Defendant

Page 195

For Khalid al Fawwaz, Defendant: Sean S. Buckley, Adam Fee, Nicholas J. Lewin, Stephen J. Ritchin, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY; Bobbi C. Sternheim, John Robinson, LAW OFFICES OF BOBBI C. STERNHEIM; David V. Kirby, Barbara E. O'Connor, O'CONNOR & KIRBY, PC.

Page 196

MEMORANDUM OPINION REGARDING DENIAL OF MOTION TO ADJOURN TRIAL

Lewis A. Kaplan, United States District Judge.

Table of Contents

Facts

The Extradition of Al Fawwaz

Initial U.K. Litigation -- Al Fawwaz Decided Not to Pursue

Alleged MI5 Evidence

U.K. Events After the House of Lords Decision -- 2001 through 2009

The European Court of Human Rights -- 2010 - 2012

The Second U.K. Judicial Review Action -- 2012

Relevant Prior Proceedings in this Court

The Indictment

The Schedule and the Present Motion

The Alleged MI5 Material and Witnesses

The Computer Discs Seized From Al Fawwaz's Apartment

Discussion

I. The Legal Standard Governing Adjournments and Continuances

A. Adjournments and Continuances Are Committed to Trial Court

Discretion

B. Trial Courts Evaluate Such Requests in Light of All the

Circumstances

1.Supreme Court Precedent

2.Second Circuit Precedent

II.The U.K. Lawsuit Is Not Sufficiently Likely to Result in Evidence

Helpful to

Al Fawwaz, Let Alone to Do So in Any Reasonable Period of Time

III.Any Difficulties Accessing Files on Computer Discs Seized From

Al Fawwaz's

Apartment Did Not Warrant a Further Postponement

IV.Al Fawwaz's Other Assertions Were Unpersuasive

A.Client Review of Documents

B.The Death of Al Liby

C.The Surveillance Reports

V.The Public Interest in Adhering to the Previously Adjourned Trial Date

Conclusion

Page 197

In August 1998, the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were bombed. Two hundred twenty-four people were killed and thousands injured.

Khalid al Fawwaz, then a resident of London, England, was charged here in 1998 with conspiring with Usama bin Laden and others to murder American citizens and to bomb the U.S. embassies in Nairobi and Dar es Salaam as well as other U.S. facilities. The United States promptly sought his extradition, and al Fawwaz was arrested in England.

Al Fawwaz, as was his right, fiercely resisted extradition to this country. After a fourteen-year battle, much of it consumed with extensive litigation and other efforts initiated by al Fawwaz, he finally was extradited and presented in this Court on October 6, 2012.[1] The case initially was set for trial on October 7, 2013. After several postponements, most at al Fawwaz's request, the trial was scheduled to commence on January 12, 2015. Nevertheless, al Fawwaz sought yet another adjournment.[2]

Page 198

The Court delayed the start until January 20, 2015[3] but denied any further postponement. This opinion gives its reasons.

In summary, al Fawwaz requested a delay in his trial on two principal grounds: (1) to await developments in his already-dismissed action against the British Home Secretary with respect to certain letters rogatory of which the United Kingdom had denied enforcement on the grounds of national security, and (2) to examine a small number of initially unreadable electronic files in the hope that they might be helpful to his defense.

In relevant part, the letters rogatory sought documents from the United Kingdom Security Service, formerly known as MI5, and testimony from two alleged MI5 agents, one identified by defense counsel as Paul Banner and the other unnamed. They were issued -- without opposition by the government -- in response to al Fawwaz's contention that he was approached by Banner shortly after al Fawwaz arrived in the United Kingdom, that he met frequently with Banner, and that he made clear to Banner that his objective was merely to secure peace with the Saudi government without recourse to violence or other unlawful activity.[4] But two justices of the High Court of England and Wales on December 19, 2014 unanimously dismissed al Fawwaz's case on the merits. Written judgments (in our parlance, opinions) -- one public and the other sealed on British national security grounds and hence unavailable to this Court or the parties here -- will follow at some point. Al Fawwaz asked that the trial be delayed pending his receipt of the public judgment and his evaluation of whether to seek permission to appeal to the U.K. Court of Appeal.[5]

The question before the Court was whether and to what extent the trial of this sixteen-year-old criminal case should be postponed still further based on al Fawwaz's hope that judicial review of the British government's denial of enforcement of the letters rogatory, on national security grounds -- a lawsuit that he already had lost at the court of first and, absent permission to appeal, last instance -- ultimately might result in his obtaining useful evidence. The Court concluded that the possibility of anything helpful to al Fawwaz being secured through the United Kingdom litigation was exceptionally speculative.

The second of al Fawwaz's principal arguments was that he had difficulty in opening, at least in readable form, some computer files containing images of the contents of a number of computer discs that were seized from his home by British police in 1998 -- images that had been in his possession since July 2013 and to which the defense team gave almost no attention until July 2014. The details with respect to the alleged technical problems concerning

Page 199

these floppy discs and other electronically stored information were many. In the last analysis, however, the facts were clear and the outcome did not depend upon complex technology. Al Fawwaz offered no persuasive reason to believe that there was anything in any unreadable portions of these files, if indeed any were unreadable in the end, that would be helpful to his defense or, for that matter, even relevant to the case.

In sum, then, the Court was asked to grant a further delay, essentially on the ground that it might have resulted in al Fawwaz finding exculpatory or helpful evidence. But there was no reason to believe that any such evidence existed or, if it existed, that it would be obtained, no matter how long a postponement were granted. The Court had no reason to conclude that al Fawwaz was likely to prevail in the British lawsuit or, even if he were to prevail, that any helpful evidence would be found. Nor did it have any reason to conclude that further time would result in the discovery of anything useful to his defense in the allegedly unreadable computer files in which al Fawwaz claimed such a keen, but indisputably belated, interest. And there were competing claims that supported trying this case at long last:

o Al Fawwaz is charged with crimes that culminated in 1998. The victims, their families, and the cause of justice were entitled to closure. The sixteen-year delay had been too long already.
o Every day that passed threatened harm to the case, as memories fade and the inevitable toll of our mortality threatened witnesses.
o Finally, " [a] defendant is entitled to a fair trial but not a perfect one," [6] " for there are no perfect trials." [7] Al Fawwaz had been afforded several postponements and ultimately was provided the opportunity for a fair trial. A fair trial -- not perfection -- was the measure of his entitlement.

The Court nonetheless granted, upon the government's consent, a postponement of the trial from January 12 until January 20, 2015. Following oral argument on January 14, 2015, the Court denied the motion in all other respects.[8] As noted, this opinion sets forth the reasons for that decision.

Facts

We take up first al Fawwaz's request to delay the trial still further to await developments in his already-dismissed action against the British Home Secretary with respect to the portions of the letters rogatory seeking evidence from MI5 concerning his alleged dealings with that agency more than seventeen years ago. This in turn implicates his efforts to prevent his extradition to the United States. The Extradition of Al Fawwaz

Initial U.K. Litigation -- Al Fawwaz Decided Not to Pursue Alleged MI5 Evidence

Al Fawwaz first was charged in 1998. The United States promptly requested his extradition on charges of conspiring to murder Americans and conspiring to bomb U.S. embassies and installations.[9] Al Fawwaz resisted before the British courts, but the House of Lords in 2001 affirmed the lower court decision denying relief.[10]

Page 200

Most of the details of the initial U.K. litigation need not detain us, but one is quite relevant in the present context. Al Fawwaz initially relied in the extradition proceeding upon the same contentions he made in this motion concerning his alleged interactions with Banner and MI5. But he ultimately elected not to obtain such evidence, despite the availability of a witness who purportedly brought the MI5 file.

Once al Fawwaz was arrested pursuant to the extradition request, there was a hearing before a British magistrate at which evidence was taken to determine whether there was a prima facie case against al Fawwaz and, in consequence, whether the extradition request should begranted.[11] Witnesses were examined. And it was at that hearing that al Fawwaz had the opportunity referred to but elected not to pursue the matter.

The solicitor who represented al Fawwaz in the extradition proceedings -- and who represents him in the current British litigation -- submitted here a declaration in which he stated:[12]

2. I confirm that I have acted as one of Mr Al Fawaz'[s] lawyers in the United Kingdom throughout the duration of the extradition proceedings initiated by the Unite[d] States government.
3. I make this declaration with specific reference to the application for a witness summons made to the Magistrate in the course of the committal proceedings in September 1999 requiring the attendance at Court by Paul Banner, an MI5 officer.
4. Mr. Banner's attendance was sought to address the following issues (which were also set out in the application for the witness summons);
(i) That he was a member of M15;
(ii) That he had numerous meetings with Mr. Al Fawaz, some at the Old War Office Building, others in numerous hotels since Mr. Al Fawaz arrived in the UK in 1994;
(iii) That at one point at these meetings, Mr. Banner warned Mr. Al Fawaz that there was an assassination plot against Mr. Al Fawaz and two other Saudi dissidents that posed a serious threat to his safety; that this threat was known to Mr. Banner to come from the Saudi government and other governments; and that Ml5 had warned the Saudi Embassy against any attack on Mr. Al Fawaz on British soil;
(iv) That Mr. Banner advised Mr. Al Fawaz as to the precautions he should take to protect his own safety. Mr. Banner further offered the services of Ml5 officers to visit Mr. Al Fawaz's premises and assist in this regard;
(v) That Mr. Al Fawaz complained about the fact that his home telephone number was monitored, but that he had made it clear that he did not object to the ARC number being monitored;
(vi) That his phone was in fact monitored and nothing to connect him with any terrorist activity was detected;
(vii) That in his conversations Mr[.] Al Fawaz gave an in depth account of ARC's activities, and made

Page 201

it clear that the organisation was " committed to peaceful change."

5. Mr. David Perry QC was instructed on behalf of the Home Office/MI5.
6. Mr. Perry appeared before the Magistrate and stated that Mr. Banner was not in the jurisdiction at the time. Instead, he confirmed, another officer had attended Court and had brought the Ml5 file.
7. I confirm that another individual did indeed attend court carrying a file.
8. Mr. Al Fawaz' barrister, Mr. Edward Fitzgerald QC, decided not to cross-examine the person with the file because, inter alia, the person with first-hand knowledge of the relationship with Mr. Al Fawaz, Mr. Banner, was not in court.
9. The officer (who attended in place of Mr. Banner) was not called to give evidence.

Thus, on the account of al Fawwaz's solicitor, an MI5 officer attended the hearing pursuant to a witness summons and brought what the solicitor understood to be the MI5 file. But al Fawwaz's barrister elected not to call the witness because Banner was not immediately available, and the barrister did not seek access to the file.[13]

U.K. Events After the House of Lords Decision -- 2001 through 2009

Once al Fawwaz failed to overturn the extradition order by direct appeal in the United Kingdom courts, he attempted to persuade the British Home Secretary not to extradite him.[14] When that effort was unsuccessful as an executive matter, al Fawwaz returned to the British courts. He filed an action seeking judicial review of the Home Secretary's decision.[15] On August 7, 2009, however, the High Court rejected his claim and refused permission to appeal to the Supreme Court of the United Kingdom.[16] The Supreme Court denied leave to appeal in December 2009.[17]

The European Court of Human Rights -- 2010 - 2012

Al Fawwaz next sought relief from the European Court of ...


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