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Southern District of New York Judge Leonard B. Sand had run out of patience. While it was a foregone conclusion that the four convicted embassy bombing terrorists before him would be sentenced to life in prison, the federal judge on Thursday was surprised and agitated by lawyers who argued that two of the men should receive downward departures under the federal sentencing guidelines. One point, raised by attorneys for Mohamed Sadeek Odeh, was that a downward departure should be given their client because of “victim provocation”: that the policies of the United States government in the Muslim countries provoked Odeh into becoming a warrior for fugitive terrorist Osama bin Laden and his group, al Qaeda. “To try and make the victims appear to be an abstraction may ease the conscience of the defendant, but it does not mitigate the fact that 214 people were killed as a result of the bombings,” Judge Sand told defense lawyers Anthony Ricco and Edward Wilford. “The suffering that was inflicted was not on abstractions, but on human beings — and that is a grossly inadequate basis for a downward departure.” The judge’s comments came after emotional testimony from six family members of those killed in the nearly simultaneous bombings of the embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, on Aug. 7, 1998. Odeh and co-defendants Mohamed Rashed Daoud Al-’Owhali, Khalfan Khamis Mohamed and Wadih El Hage sat impassively during the victim-witness statements. Judge Sand then addressed final arguments by the lawyers before sentencing each man individually. As part of the intense security surrounding the hearings, which included U.S. Marshals armed with shotguns ringing the courthouse at 40 Foley Square in New York City and the entire court complex, each defendant was removed from the courtroom after he was sentenced. The proceedings would be halted for a few moments, and Sand would leave, and then return to the courtroom to deal with the next defendant. Mohamed and Al-’Owhali, who were both given mandatory life sentences after the jury in two separate proceedings could not agree on the death penalty, made no comment when asked if they wanted to address the court. But Odeh gave a brief statement, and El Hage addressed the court for more than half an hour. He proclaimed his innocence, conducting a historical review of Islam and the decline of Middle Eastern governments into corruption, and blamed U.S. policy toward Iraq, Saudi Arabia and Israel for “breeding unjustified extremism” in the region. But it was the arguments for a downward departure by El Hage’s lawyers that most distressed the judge. El Hage was proven to be part of the conspiracy through his role as business manager for bin Laden and logistical support that El Hage provided to the terrorist cells in Africa. So when attorney Joshua Dratel said that El Hage has suffered already under poor conditions of confinement for three years and that his wife and seven children would suffer if he continued to be isolated in prison, Judge Sand asked sarcastically, “How long a sentence do you think would obviate that?” NO DOWNWARD DEPARTURE Sand had already rejected co-counsel Sam Schmidt’s argument that a downward departure should be given because El-Hage, while proven to be part of the conspiracy before 1993, withdrew from the plot before bin Laden expanded his list of targets from military personnel and installations to include killing Americans anywhere in the world. Thursday, when Dratel argued that El Hage’s sentence was out of proportion to those of his co-defendants given his level of involvement, Judge Sand had had enough. “You want me to find El Hage is the least culpable of the four defendants?” he asked in disbelief. “I will not do that. I could find that he is the most culpable. To suggest that the facilitator is less culpable than those who ground up the powder is not part of a set of values I would subscribe to.” And when Schmidt renewed his argument that El Hage was unaware that bin Laden and his group al Qaeda had begun targeting civilians, Judge Sand ended the discussion. “This is really not the time to quarrel with the jury verdict, which found Mr. El Hage guilty of conspiracy to kill Americans,” he said. El Hage’s statement also brought a sharp rebuke from lead prosecutor Patrick Fitzgerald, who was named U.S. Attorney in Chicago after the trial, but on Sept. 11 was immediately flown to Washington, D.C., to help with the investigation into the attack on the World Trade Center and the Pentagon. “He should leave this courtroom without pretense — he betrayed his country, he betrayed his religion and he betrayed humanity,” Fitzgerald said. “He should go to a jail cell that is really of his own creation.”

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