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Judge considers whether to toss out embassy bombing defendant's confession
NEW YORK (CNN) -- U.S. District Court Judge Leonard Sand is deciding whether to admit into evidence a confession by one of four men standing trial in connection to the August 1998 bombings of U.S. embassies in Kenya and Tanzania.
In a hearing that began Tuesday and ended Wednesday morning, attorneys for defendant Mohamed Rashed Daoud al-'Owhali argued that FBI agents failed to properly apprise him of his right to remain silent and his right to counsel before interrogating him in Kenya.
What's at stake in the hearing is whether the yet-to-be-seated jury will hear statements by al-'Owhali in which, FBI agents allege, he admitted a role in the Nairobi bombing that killed 213 people and injured more than 4,000 others.
Sand had closed the suppression hearing to the public and offered only a heavily redacted transcript to reporters. Only the testimony of two witnessess -- an FBI agent and an FBI translator -- is available for review. Al-'Owhali did not testify.
The government's main witness was FBI agent Steven Gaudin, who questioned al-'Owhali in Kenya over a two-week period in August 1998. Kenyan police had arrested al-'Owhali on August 12, 1998, five days after the bombing.
Gaudin told the court he and another agent held nine different meetings with al-'Owahli that usually lasted between two and four hours, though a couple of meetings lasted seven to 10 hours.
Judge Sand himself asked agent Gaudin if he ever discussed with al-'Owhali whether he wanted an attorney.
"I don't remember him asking for an attorney," Gaudin replied.
Sand also asked Gaudin whether U.S. or Kenyan investigators discussed among themselves the availability of an attorney for al-'Owhali. Gaudin told the court they did not.
The only time the idea of an attorney was brought up, Gaudin testified, was after six days of questioning, on August 22, when al-'Owhali was reviewing the form recommending his extradition to the U.S.
"I don't particularly remember the word 'attorney,' but I remember him saying, 'Is there someone that could look at it to see if it was enforceable?' That's the only time," Gaudin said.
FBI translator Mike Feghali told the court he never heard al-'Owhali say the word "attorney" until they were on the plane together en route to the United States on August 26, 1998.
"Then he said he would like to have a lawyer," Feghali testified.
Part of the suppression dispute focuses on what happened during the FBI's first interrogation, on August 12, when a translator was not present. Gaudin read al-'Owhali his rights only in English, but al-'Owhali, a Saudi national, speaks Arabic.
Feghali testified that al-'Owhali understands some English but doesn't verbalize it that well.
"He definitely understood more than he could speak," Feghali said.
Defense attorney Fred Cohn asked Feghali if al-'Owhali had the ability to understand legal rights read to him in English "in any detail or with any precision."
"I would say not in its entirety," Feghali said.
But Feghali also testified that al-Owhali had his rights adequately explained to him.
"He said he understood it all. As a matter of fact, he told me he understood that before and there wasn't any need for...me to translate it to him," Feghali said.
Feghali told defense attorney Cohn he did not provide written translations of forms al-'Owhali signed, but added, nobody has ever asked him to do that.
Al-'Owhali signed a form on August 22 stating he was "fully advised of my rights" and "my right not to answer questions without a lawyer present."
In that document, al-'Owhali sought a promise that he would be taken to the United States, according to both Gaudin and Feghali.
"My recollection was that he wanted a guarantee as opposed to just a recommendation," Gaudin said. Gaudin testified that he had earlier informed al-'Owhali, "You have been arrested by Kenyans and ultimately it's up to them what's going to happen to you."
Gaudin is among the FBI agents who say al-'Owhali told them that he traveled in the passenger seat of the Nairobi bomb truck and that the embassy bombing was supposed to be a martyr mission he did not expect to survive.
Agents say al-'Owhali told them he had been trained in explosives in Afghan military camps run by Saudi exile Osama bin Laden, whom the U.S. has indicted on charges that he masterminded the bombings and led a worldwide conspiracy to kill Americans and destroy American government property.
Gaudin told the court he believed that al-'Owhali trusted him and that by the time Gaudin flew with him to the U.S., "he was very fond of me."
But al-'Owhali is not so kind in a suppression-related affidavit filed with the court.
"I did not understand I had the right to remain silent or that I had the right to an attorney. I was trapped into a position that either I speak to the Americans, whose country protected human rights, or speak to the agents of a Third World country where human rights received no consideration whatsoever," al-'Owhali said in the document.
"I was told I had to give a statement if I wanted to go before the court or be released," al-'Owhali said. "I was further told that if I confessed I would be helping myself."
U.S. Attorney Mary Jo White has denied that al-'Owhali was deprived of his rights while in Kenyan custody. She said in a document filed with the court that al-'Owhali spoke to American officials only after he "voluntarily, knowingly, and intelligently waived his rights."
On January 9, Judge Sand issued a sealed opinion on al-'Owhali's suppression motion, but withdrew it after the government moved for a rehearing on the matter.
Embassy bombing defendant wants confession suppressed
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