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New submissions provided by the government prompted Judge Leonard Sand of the U.S. District Court for the Southern District of New York to reverse course and deny a motion to suppress statements made by one of four men charged with a conspiracy that includes the 1998 bombing of two United States embassies in Africa. Ruling from the bench, U.S. District Judge Sand found that Mohamed Rashed Daoud Al-’Owhali was properly advised of his rights when he was questioned in Kenya by American investigators shortly after the bombings of embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The judge had previously said he would suppress statements given during several interrogations of Al-’Owhali in August 1998. However, Sand withdrew that ruling and granted the government’s motion to reopen the suppression hearing. The judge said from the bench on Monday that he was satisfied by the government’s written and oral submissions, made last week, that Al-’Owhali was advised of his right to counsel. Sand did suppress statements made by Al-’Owhali before Aug. 22, 1998, “prior to the time he was affirmatively advised of his right to counsel.” Up to that date, American agents had simply provided Al-’Owhali with a form advising him of his rights. Sand said Monday that he found “the advice of rights form standing alone to be inadequate.” However, Sand said that the impact of that ruling was minimal because the statements at issue “are believed by the court to consist solely of exculpatory statements, which the government contends to be false.” One issue the judge touched on in his ruling was the availability of free counsel for Al-’Owhali. He said that Al-’Owhali was not told that counsel would be appointed for him because American representatives who had consulted with Kenyan authorities discovered free counsel could not be provided in Kenya. Al-’Owhali contended that government agents told him he would be “hung like a dog by the Kenyans” if he demanded a lawyer. RIGHT TO COUNSEL Judge Sand also said there was no violation of Al-’Ohwali’s rights in his decision to waive the right to counsel before he agreed to be transported to the United States. “We find that the initiative to have Al-’Owhali be brought to the United States originated with him, that the waiver of the right to counsel was a consequence of the strong desire he expressed to be tried in America so that he could confront directly his avowed enemy,” Sand said. “Talking without counsel to the Americans was not a Hobson’s choice with which he was confronted, but rather a course of action he voluntarily chose to pursue.” For somewhat similar reasons, Sand denied a motion to suppress statements given by co-defendant Mohamed Sadeek Odeh, saying Odeh had made a “voluntary and knowing waiver of his right to counsel, and that this was not a consequence of duress inflicted by the Americans but in response to Odeh’s wishes.” Last Friday, Sand released a previously sealed ruling in which he rejected a constitutional challenge to the Classified Information Procedures Act made by defendant Wadih El-Hage. Odeh and the fourth defendant in the case, Mamdouh Mahmud Salim, joined in the motion. CIPA was passed by Congress largely to deal with the problem of “graymail,” a scenario in which a defendant who is accused of releasing classified information gets access to even more such information through discovery, then discloses it publicly at trial. Sand, however, said the scenario presented here is different from that of the typical CIPA case, which involves espionage or illegal leaking of classified information. Because the threat of such disclosure can lead prosecutors to drop cases, Congress enacted procedures for the handling of classified materials by judges, including the use of protective orders after a so-called Section 6 hearing on the relevance and admissibility of the classified material. In July 1999, Sand adopted a protective order covering classified information in the terror case because he was convinced that unauthorized disclosure of some information would jeopardize the government’s ongoing investigation of defendants and their leader, alleged terrorist mastermind Usama Bin Laden. El-Hage contended that the protective order was far too sweeping and that CIPA, as applied, violated the Sixth Amendment because the withholding of classified information denied him effective assistance of counsel, the right to confront and effectively cross-examine witnesses against him, and the right to be present at a critical proceeding — a Section 6 hearing. And the Fifth Amendment was violated, El-Hage contended, because the lack of access to the information, in effect, violated his right to testify in his own behalf, to present a defense, and to remain silent. Part of both arguments also cited the intense security surrounding the case and the limited access that defense lawyers have had to their clients. In his 17-page ruling, Sand disagreed. FEW HARMS IDENTIFIED As to the alleged violation of El-Hage’s right to counsel, the judge said, “Although El-Hage’s attorneys claim that their task in discerning the relevance and materiality of the classified information is made more difficult by their inability to confer with the defendant, few harms are specifically identified by defense counsel.” Concerning El-Hage’s claim that he has the right to present for Section 6 hearings, Sand adopted the precedent set by the 5th and 9th U.S. Circuit Courts of Appeals that such hearings regard questions of law and not fact, and El-Hage therefore could be excluded. As of Monday, 11 more potential jurors had been chosen, bringing the total to 77. Sand said he would like to get to 90 before both sides begin exercising their challenges on the way to selecting a final panel.

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