Another Successful Terrorism Trial Inside the US

Khaled Abdul Rahman Hamad al-Fawwaz was stoic as his fate was announced, staring straight ahead, unflinching, his face blank, wearing the same white Islamic kufi on his head and white khaftan, or tunic, he had worn in court since jury selection began five weeks earlier. A jury of eight men and four women from Manhattan, Westchester County, and the Bronx reached a verdict in the latest smooth al-Qaeda trial in federal court. Al-Fawwaz, a gray-bearded 52-year-old Saudi national born in Kuwait, stood accused of four terrorism conspiracies that killed Americans in the 1990s, most notably the 1998 twin truck bombings of US embassies in Kenya and Tanzania.

“Guilty,” the jury forewoman said, four times.

His conviction on Thursday afternoon ended the third and likely the last trial stemming from the original embassy bombings indictment, and the third major terrorism trial completed in Lower Manhattan in the past 11 months. Starting with the trial for the 1993 World Trade Center bombing, federal prosecutors aided by FBI agents based in New York have written the playbook on how to charge, capture, and convict foreign terrorists.

They have done it while conducting crafty, humane interrogations that lead to confessions and granting defendants full constitutional rights vigorously protected by seasoned attorneys whose expenses are taxpayer-paid. Unlike the parallel legal universe at Guantanamo, these court convictions come speedily and hold up on appeal — not one of dozens has been overturned — and typically result in harsh sentences.

“I’m heartened by the verdict. It puts to rest the canard put forth by some on Capitol Hill that the Justice Department is unable to prosecute terrorists … that we are endangering the safety of US citizens by trying them here,” said Howard Kavaler, widowed by the Kenya bombing and left to raise two young daughters now finishing college.

At a speech at the September 11th Museum on Wednesday night, Preet Bharara, the US Attorney for the Southern District of New York, described the prosecutors and FBI agents who have won case after case against al Qaeda and its affiliates as “the tip of the spear” in a two decade war. To underscore his point, the al-Fawwaz verdict came on the 22nd anniversary of the first World Trade Center attack.

At times, Kenyan and Tanzanian visitors filled several rows in the courtroom. Three of these them testified about the carnage of the embassy bombings, which killed 224 people. Forty-five victims worked at the embassies, including 12 Americans who worked in Kenya for the State Department, the US military, and the CIA. Relatives of some — Prabhi Kavaler, Arlene Kirk, and Julian Bartley — attended the trial, as did survivors of the Kenya blast, such as Worley and Joyce Reed, who led the search, rescue, and medical evacuation of embassy employees, and Ellen Bomer, who was blinded by shards of glass when the embassy windows exploded. For these observers, this trial was personal history.

“My wife will never come back again, but we do get some measure of satisfaction to see these conspirators brought to justice, and they will spend a life sentence in a maximum security prison reflecting on their nefarious acts,” said Kavaler.

Last year, Congress finally awarded compensation to embassy bombings families and families of all US government employees killed in terrorist attacks going back to the 1983 bombing of a US Marine barracks in Beirut.

But Congress continues to block the transfer of terrorist suspects from Guantanamo to the US mainland. There is still no date for the military commission against Khalid Sheikh Mohammed and four other men charged for 9/11, even though Mohammed will have been in US custody 12 years this Sunday and was charged seven years ago. This week, the long-delayed Guantanamo proceedings again ground to a halt.

Kavaler said, “The victims of 9/11, while they have been well compensated, have not received justice.”

Prosecutors proved al-Fawwaz served al-Qaeda founder Osama bin Laden on three continents for almost a decade: training recruits at al-Qaeda camps in Afghanistan, in 1990–91; establishing the group’s East Africa cell that would carry out the embassy bombings, in 1993–94; and functioning as bin Laden’s communications conduit in London, in 1996–98. From London, he procured a satellite phone and thousands of minutes for bin Laden and his deputies to communicate with al Qaeda cells around the world, edited and distributed his fatwahs, or religious decrees, urging Muslims to kill Americans, and arranged bin Laden interviews with Western media.

“Before the age of the Internet, this man was the bridge that assured that Osama bin Laden’s murderous message could cross the globe and enter American homes,” Assistant United States Attorney Sean Buckley told the jury in closing arguments.

The jurors, whose identities were kept anonymous, left without speaking to reporters or revealing their thinking during their three days of deliberations. They sat through 14 days of testimony and evidence and two days of closing arguments. They heard from two former al-Qaeda operatives turned cooperating witnesses, L’Houssaine Kherchtou and Ihab Ali, who placed al-Fawwaz in the camps and in the company of al-Qaeda operatives in Kenya when embassy surveillance began.  They also authenticated the contents of a purported al-Qaeda’s member list unveiled for this trial.

The 170-name list labeled “top secret” by its unknown author was discovered by US troops inside a binder in a house in Kandahar, Afghanistan, in December 2001. Both Kherchtou and Ali verified the membership of many men listed, including themselves and al-Fawwaz, listed as number 9 under the alias “Hamad al-Kuwaiti,” which referred to one of his middle names (Hamad) and the nation of his birth (Kuwait).

“Every man on this list is a participant in al-Qaeda’s conspiracy to kill Americans,” prosecutor Buckley had said. “Khaled al-Fawwaz did everything al-Qaeda asked of him.”

Besides the list, the big revelation of this trial was Ihab Ali himself, an Egyptian-American who became al-Qaeda’s first pilot trained in the US and laid tracks for 9/11 hijackers. He was quietly imprisoned for 10 years on US soil until he became a government cooperator in 2009.

The embassy bombings conspiracy case has ensnared more than two dozen men, including bin Laden and his successor as al-Qaeda leader, Ayman al-Zawahiri; Ahmed Ghailani, the only Guantanamo detainee transferred to US soil for trial; four men convicted for the embassy bombings in 2001; and a handful of other conspirators who pleaded guilty. Bin Laden is not the only name on the indictment killed by the US military.

Al-Fawwaz defense attorney Bobbi Sternheim conceded her client allied with bin Laden in holy war against Soviet invaders of Afghanistan in the 1980s and in pushing to reform the Saudi monarchy in the 1990s.

“Osama bin Laden took a very bad turn, and the turn that he took shocked, disturbed, and angered Khaled Fawwaz,” Sternheim told the jury in her closing argument. She offered the jury depositions from two London friends of al-Fawwaz attesting to his schism with bin Laden after his most radical pronouncements. She said the government’s case was based on “suspicion, association, theory, and inference” and “six degrees of separation of men who met in Afghanistan.”

Sternheim tried to poke holes in the government’s central exhibit — the membership list — that prosecutor Stephen Ritchin called “the icing on the cake.” No one knows who wrote it, no one actually called the defendant “Hamad al-Kuwaiti,” and no one proved everyone named fought for al-Qaeda, Sternheim said. She conceded al-Fawwaz did “favors” for old friends, but she argued he did not sign up for any murderous conspiracy.

The four conspiracies were to kill US citizens anywhere in the world, to kill US government employees, to destroy US government buildings with bombs, and to destroy US national defense utilities. Beyond the embassy attacks, the case encompassed the prior Black Hawk Down incident, when Islamist rebels shot down US helicopters over Mogadishu, Somalia, in October 1993, leaving 18 Army Rangers dead. While the trial reviewed how some Kenya-based al Qaeda operatives went to Somalia to train fighters, exactly who shot down the helicopters and how remains a matter of debate.

Al-Fawwaz did not testify, but jurors heard his voice in a series of friendly phone calls with al-Qaeda military commander Mohammed Atef that were recorded from wiretaps on al-Fawwaz’s lines in 1998. They spoke on August 7, 1998, during the hour before the embassy bombings, and two weeks later, the day the US would launch cruise missiles at al Qaeda locations into Afghanistan to retaliate.

“Everyone is asking. You disappeared for a while,” Fawazz said to Atef on August 20, 1998, according to the translation.

“You know, we are a little busy,” Atef replied.

Of the 1,122 outgoing calls from al-Qaeda’s satellite phone between November 1996 and October 1998, 142 went to London phone numbers belonging to al-Fawwaz, who called back the satellite phone and other al-Qaeda numbers 165 times, evidence showed. Al-Fawwaz also received calls and faxes in London from the Kenya cell.

Al-Fawwaz has already been incarcerated for 16 years, since his arrest in England two months after the embassy bombings, and it would be surprising if US District Judge Lewis Kaplan levied anything less than a life sentence, given his track record with Ghailani and former al-Qaeda spokesman Suleiman Abu Ghaith.

Al-Fawwaz fought extradition from 1998 until 2012. During that time, one of his UK codefendants, Ibrahim Eidarous, died in custody.  Another, Adel Abdel Bary, pleaded guilty before the trial and could be free in less than nine years. A fourth defendant, Anas al-Libi, snatched by US Special Forces off the streets of Tripoli in 2013, died immediately before trial from liver disease. Al-Libi appeared on the membership list too, just four names below al-Fawwaz. 

About the Author(s)

Phil Hirschkorn

Fellow at the Center on National Security at Fordham Law School and New York-Based Journalist covering Al Qaeda and terrorism trials for 15 years