Mustafa Kamel Mustafa in October 2012. (Rex Features)
Jury selection begins this morning in the second of back-to-back terrorism trials in lower Manhattan where a religious leader is accused of urging young Muslim men to join the fight with al Qaeda and attack the United States and the West.
Mustafa Kamel Mustafa is charged with exhorting men to train for jihad, or holy war, and taking part in kidnapping plots in Yemen. His trial comes just two weeks after a jury took six hours to convict Sulaiman Abu Ghayth of inciting people to commit acts of terrorism in his role as Osama bin Laden spokesman (NYLJ, March 27).
Like jurors in the trial of Abu Ghayth, the jury in the Mustafa before Southern District Judge Katherine Forrest (See Profile) will hear speeches by the defendant and statements given in interviews in an effort to determine if he is guilty of material support of terrorism.
As in the Abu Ghayth case, jurors will see images of the Sept. 11, 2001 attacks, the October 2000 bombing of the U.S.S. Cole and pictures of the late bin Laden, the architect of al Qaida’s terror campaign to rid the Middle East of the United States and Israel.
But there are several differences between the two trials that begin with the proximity of the defendants to bin Laden.
The Ghayth jury saw pictures of the defendant sitting with bin Laden and other top al Qaida figures outside a cave in Afghanistan just after the airplane hijacking assaults on the World Trade Center and the Pentagon, and just before he gave his first incendiary speech warning the West that 9/11 was only the beginning.
The jury considered a handful of videos and speeches from a relatively short time frame, 2001-2002, in which Ghayth vowed that the “storm of airplanes” would continue—speeches he made in tandem with the failed shoe bombing plot involving Richard Reid and Saajid Badat, a government cooperator who testified by live feed from London.
And the jury heard the Kuwaiti-born Abu Ghayth describe from the witness stand meeting and being recruited by bin Laden to spread the word. Jurors rejected Abu Ghayth’s defense that he had been speaking only in general terms about religious matters and Muslim self-defense.
For the Mustafa trial, evidence laid out by prosecutors in pretrial proceedings includes an abundance of statements made by Mustafa over a longer time frame and while there is evidence of Mustafa praising bin Laden, the two are never pictured together.
The Mustafa prosecution team of Southern District Assistant U.S. Attorneys Edward Kim, Ian McGinley and John Cronan insist they can establish a direct link between al Qaida terror attacks and Mustafa, the lead imam at the radical Finsbury Park mosque in London.
Cronan was the one of three prosecutors in the Abu Ghayth trial and delivered the government’s closing argument. Kim was co-counsel in the prosecution of Manssor Arbabsiar, an Iranian-born, U.S. citizen who plotted with Iranian intelligence to murder the Saudi ambassador to the United States and was sentenced to serve 25 years in prison in 2013.
The Egyptian-born Mustafa, who also goes by the name Abu Hamza al-Masri, lost both his hands and the sight in one eye in Afghanistan decades ago and he brings a prosthetic arm equipped with a hook to court. He was arrested during raids on the mosque and his home in London in 2004, prosecuted by the British government and extradited to the United States in 2012.
Now 55, he faces life in prison if convicted of conspiring to raise money to send militants to Afghanistan to train as terrorist fighters, conspiring with militants in Yemen in a kidnapping plot that left four tourists dead in 1998 and conspiring to establish a terrorist training camp in Bly, Oregon in 1999.
Mustafa is represented by Josh Dratel and Jeremy Schneider, both experienced attorneys who have defended accused terrorists in pretrial proceedings and trials.
Dratel, who has a two-person law practice, was the first civilian attorney to represent an individual before the Guantanamo Bay military commissions. He argued the appeal of convicted Wadih el Hage in the 1998 embassy bombing case, and represented former defense lawyer Lynne Stewart at sentencing on appeal from a material support for terrorism conviction.
He is also the co-editor of a book on the so-called “torture memos” and official reports on coercive interrogation and is co-author of a book analyzing the five major enemy combatant cases after Sept. 11: “The Enemy Combatant Papers: American Justice, the Courts, and the War on Terror.”
Schneider has been in practice for 35 years in a career that began at the Legal Aid Society and has included over 150 trials, representing defendants in a board range of cases including organized crime, narcotics, corruption, and weapons charges.
A partner at Rothman, Schneider, Soloway & Stern, he sits on the Capital Panels of the Eastern and Southern Districts and has advocated for defendants in the first World Trade Center case as well as the embassy bombing case.
U.S. Evidence Attacked
Dratel and Schneider argued aggressively over a two-day pre-trial conference last week attacking dozens of government exhibits, ­particularly a number of speeches and statements given by Mustafa, as well as evidence of guns found at the Finsbury mosque and other evidence.
They also went after the Bly, Oregon charge, which was the subject of a 2009 trial in the Southern District that ended in the conviction of Oussama Kassir, a Lebanese-born Swedish citizen who was allegedly recruited by Mustafa to establish the camp.
Lawyers for Kassir tried to deride the Bly training camp as an effort that never got off the ground and was quickly abandoned, a defense echoed by Schneider last week, who said of Bly “nothing ever came of it. It’s a farm in Oregon where people went for a little while and shot some guns.”
In the Abu Ghayth case, attorney Stanley Cohen’s defense was to assert that Abu Ghayth was being prosecuted for “words and associations,” and that he was never a fighter.
Cohen attacked two government cooperators, including Badat, for never having seen or met his client, minimized his client’s role in the organization and claimed the government was playing on fear. But Cohen’s attempts to argue against the relevance of the prosecution’s evidence and the obvious proximity of Abu Ghayth to bin Laden were doomed before Judge Lewis Kaplan (See Profile).
Kaplan is a veteran judge who had already presided over the trial of Ahmed Abdul Ghailani for the al Qaida conspiracy that centered on the bombing of two U.S. embassies in Africa in 1998.
Only a handful of the 48 Southern District judges have had the chance to preside over terrorism trials.
Forrest, a 2011 Obama appointee in 2012 held that journalists and other groups had standing to challenge a federal law allowing for the indefinite detention of people who “substantially supported” al Qaida, the Taliban or associated forces.
The U.S. Court of Appeals for the Second Circuit in 2013 reversed Forrest, who had put government lawyers through their paces and found there was sufficient fear of innocent plaintiffs being swept up by a vague statute to justify a preliminary injunction. Kaplan was on the panel that vacated the injunction (NYLJ, July 18, 2013).
Over the two-day conference last week, Forrest worked the lawyers through dozens of government exhibits the prosecution said provided strong evidence of Mustafa’s motive and intent to aid al Qaida in its murderous conspiracy.
Culled from thousands of hours of recordings, the government has about one hour of recordings that Kim says advocate jihad training and “acts of violence,” including statements like “War is war and their evil cannot be stopped except by killing them,” and “Never be sorry for evil America.”
Dratel and Schneider attacked the evidence as unconnected to the charges in the case, saying much of it was not relevant and was highly prejudicial to the defendant. They accused the prosecutors of seeking to introduce evidence of speeches and statements made within a limitless time frame, including statements made before al Qaida was designated a terrorist organization by the State Department in 1999.
Dratel said at different points that there can’t be a connection to the charged conspiracies “every time someone says something against America” and, sarcastically, that the prosecutors “want to make part of the conspiracy every violent act that’s occurred since the 18th Century.”
Schneider at one point said that showing images of the U.S.S. Cole and the World Trade Center “is going to shut the door on any fair or impartial evaluation of the evidence.”
By Friday, both sides had reviewed questionnaires submitted by some 200 prospective jurors and stricken dozens from the list. Forrest struck some of her own.
Potential jurors who make the cut are expected to be questioned at 500 Pearl Street today. There will be no court on Tuesday and Wednesday and jury selection, if needed, will resume Thursday before opneing arguments are heard.
Schneider was noncommittal outside of court Wednesday when asked if his client would testify at trial.
Inside, Forrest had just asked both Schneider and Mustafa if the defendant had been offered a plea deal and was aware of the potential consequences of going to trial.
Mustafa stood and, in English, told the judge that he knew what he was doing.
“I think I’m innocent,” he said, adding that the trial was “a chance to defend myself.”
@|Mark Hamblett can be contacted at email@example.com.