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S. Africa court says defendant's rights violated

By From Phil Hirschkorn
CNN New York Bureau

NEW YORK (CNN) -- Jurors are in their 12th day of deliberating the fate of four men accused of participating in an alleged worldwide conspiracy to kill Americans that included the 1998 bombings of U.S. embassies in Kenya and Tanzania.

Meanwhile, South Africa's highest court ruled Monday that the extradition of one trial defendant was "unlawful." The decision is being sent to the U.S. District Court in Manhattan where the trial has been under way since January.

Jurors, who received the case on May 10, are poring over 302 counts that spread out over a 61-page verdict form. The charges include multiple conspiracy counts, the truck bombings, the murders of the 224 people killed in the bombings, and perjury.

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The courtroom was full of more visitors -- relatives of American and African bomb victims -- Tuesday than at any time since the jury got the case nearly three weeks ago.

Mohamed al-'Owhali, 24, a Saudi, and Mohamed Sadeek Odeh, 36, a Jordanian, are accused of involvement in the Nairobi, Kenya, attack in which 213 people died and more than 4,500 were injured on August 7, 1998.

Khalfan Khamis Mohamed, 27, a Tanzanian, is accused of involvement in the Dar es Salaam, Tanzania, attack in which 11 people died and more than 85 were injured in a coordinated attack minutes later.

Wadih el Hage, 40, a naturalized American not involved in the bombings, is accused of facilitating the East Africa cell and lying before a U.S. grand jury to protect it.

All four men have ties to the absent lead defendant, Saudi exile Osama bin Laden, the alleged mastermind of the conspiracy, who is living in Afghanistan.

If the jury returns convictions on the murder counts, al-'Owhali and Mohamed would be subject to second trial phase deciding whether their punishment will be the death penalty.

The Constitutional Court of South Africa ruled Monday that Mohamed's rights were violated when he was extradited to the United States in October 1999 without an assurance that prosecutors would not pursue capital punishment.

"It infringed on Mohamed's right ... to human dignity, to life, and not to be treated or punished in a cruel or inhumane or degrading way," said Judge Arthur Chaskalson, president of the Constitutional Court.

The court also said the government failed to follow procedures, such as giving Mohamed a lawyer.

South Africa abolished the death penalty in 1995 and its laws prohibit exposing anyone to the risk of execution through extradition or deportation, said Paul Setsetse, a Justice Ministry spokesman.

Setsetse added that Mohamed did not fight deportation.

Mohamed was arrested on October 5, 1999, by South African police in Cape Town, where he had been living as a fugitive since a few days after the embassy bombings. Mohamed, after applying for political asylum under an alias, obtained a temporary residency permit and supported himself as a hamburger cook.

By October 1999, FBI agents were closing in on Mohamed, having traced a year-old fake Tanzanian passport application to his South Africa residence.

FBI agents were on the scene when Mohamed attempted to renew his immigration papers. South African police arrested him for entering the country under false pretenses, initiated deportation, and turned him over to U.S. custody.

FBI agent Abigail Perkins, who interrogated Mohamed, testified that when Mohamed was asked if he had a choice between going to America and Tanzania, he responded, "Take me to America."

The South African court acknowledges it could not undo the constitutional wrong against Mohamed, but ordered its decision be immediately sent to the U.S. District Court.

"We respect the sovereignty of the United States," Setsetse said. "As to whether the judgment will hold any water in the proceedings over there, that we do not know."

Another defendant in the embassy bombings conspiracy case, Mamduh Mahmoud Salim, was extradited from Germany only after U.S. prosecutors guaranteed Salim would not face the death penalty. Salim, 43, an Iraqi in U.S. custody since December 1998, is accused of being a founder of bin Laden's Islamic militant group, al Qaeda, and one of its leading financial officers.


Greta@LAW







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