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Statements given to American and German investigators by a man accused of being part of a worldwide terrorist conspiracy led by fugitive Osama Bin Laden can be used against him at trial. Senior Judge Leonard B. Sand of the U.S. District Court for the Southern District of New York ruled Friday in United States v. Bin Laden, 98 Cr. 1023, that the 1998 statements made by Mamdouh Mahmud Salim were made with knowledge that he had the right to refrain from talking and the right to counsel. Salim is also charged with a vicious attack on a corrections officer at the Metropolitan Corrections Center following his extradition to the United States. The decision will be published Wednesday. While Salim is charged with being part of the conspiracy that culminated in the bombing of two U.S. embassies in Africa, he will first go on trial on Sept. 17 for the November 2000 assault on Officer Louis Pepe. The assault occurred as Salim was preparing his defense for a trial that ended this April with the convictions of four of his co-defendants for their role in the conspiracy and the bombings of the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania on Aug. 7, 1998. But Salim never made it to that trial because, on Nov. 1, 2000 in what prosecutors believe was a bid to take hostages and escape from the Metropolitan Corrections Center, Salim allegedly jammed a makeshift weapon into the eye of Pepe, nearly killing the officer and rendering him disabled for life. The alleged attack — which took place two weeks after a closed-door suppression hearing concerning the statements that Salim made in Germany — led to a change in Salim’s appointed counsel and the decision by Judge Sand to sever Salim’s case from that of his co-defendants. Because defense attorneys Paul J. McAllister and Charles D. Adler were in the middle of a visit with Salim at the Metropolitan Corrections Center when the attack occurred, the government expected to call the two attorneys as witnesses in Salim’s trial for the attempted murder of Pepe. “A clear conflict thus arose wherein Messrs. McAllister and Adler were to represent Salim in the terrorism conspiracy case before this court, while at the same time they might be required to testify against Salim in a concurrent prosecution,” Judge Sand wrote in Friday’s opinion. Therefore, at a sealed hearing one week after the assault on Pepe, Sand relieved the two attorneys from the case. Attorney Alan P. Haber was assigned in their place, and because Haber had little time to prepare for the terrorism conspiracy case, Sand ruled that Salim would be tried separately. INTERVIEWS IN GERMANY Judge Sand said that the evidence he heard at the sealed suppression hearing last October consisted largely of the testimony of American and German law enforcement investigators, a German-Arabic interpreter, the prison chaplain who counseled Salim while in Germany, and Salim himself. Salim was arrested at Munich International Airport on Sept. 16, 1998, and questioned periodically over the following two weeks. Before questioning, he was read a German Advice of Rights form (AOR), which informed him of his right to remain silent and his right to an attorney during questioning. Sand said that Salim repeatedly expressed a willingness to answer questions without a lawyer present, and gave the same response when he was read an American AOR. But on Sept. 17, Salim was taken before a magistrate of the Munich District Court for the first step toward his ultimate extradition to the United States. When the magistrate asked Salim if he wished to make any statements to the court with respect to his extradition, Salim stated that he would only speak with an attorney by his side. Judge Sand said that no Americans were present at the Munich District Court, and that the American contingent was not informed of his desire for counsel at the hearing until the following day. When the hearing ended and Salim’s interrogation by the Germans resumed, he again spoke freely without an attorney present. He also did not request an attorney when questioning by the Americans resumed the next day — a session that ended when the Americans, including Assistant U.S. Attorney Kenneth Karas, were told of Salim’s statement to the magistrate. RIGHTS READ DAILY Before reviewing the testimony of the October suppression hearing, Sand noted that he had already found the American Advice of Rights form to be “facially inadequate as a matter of law.” Sand made that decision in February in a ruling in which he refused to suppress statements made by one of Salim’s co-defendants. But in that ruling, Sand nonetheless found that “a facially flawed overseas AOR by the Americans can still be cured if foreign custodial authorities contemporaneously provide the suspect with an accurate apprisal of his rights to counsel under foreign law.” In Salim’s case, Sand said, German inspectors began “each and every interview day” by informing Salim of his right to counsel. “And because the German AOR was administered to Salim even at interviews in which only the American agents interposed questions, the clear message was that Salim’s right to counsel existed in Germany and that it would be honored at any time he sought to exercise it, irrespective of who actively conducted the particular session,” he said. Salim had also argued that U.S. Supreme Court precedent nonetheless required suppression of the statements because most of them were given after he requested counsel at the extradition hearing. SAND’S INTERPRETATION Sand said that the core inquiry is whether Salim’s action before the German court expressed a desire to deal with the police through counsel only, “or whether it was instead a more limited decision by Salim to participate in formal court proceedings concerning extradition only with the assistance from a local German attorney.” Sand said the record supported the “more limited interpretation” of Salim’s request for counsel. One important factor, Sand said, was that Salim “consistently and adamantly declared to the interviewing agents that he wished to answer all their questions in order to demonstrate his innocence.” In addition, Sand said, “despite being directly advised on Sept. 28, 1998, by another of his German extradition attorneys that he should invoke his right to silence if questioned by law enforcement without counsel present, Salim nonetheless insisted that he would continue making statements in order to ‘clear up some points.’ “ Karas and Assistant U.S. Attorneys Patrick Fitzgerald and Paul W. Butler represented the government.

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