Before the jury came in, Jay Carney objected to a list of exhibits the government planned to show in court today. Mr. Carney’s argument was, again, that the pictures were more minimally probative and prejudicially significant. Mr. Chakravarty argued that these photos show state of mind, which Mr. Carney has repeatedly stated has already been made clear. Using the same argument he made regarding the pictures, Mr. Carney objected to the government using chats that contained some offensive language and were completely irrelevant to the case. When it seemed the Judge was once again going to rule on the side of the government, Mr. Carney commented, “We had hope when we heard Your Honor say this case would be tried within the four corners of the indictment. To be honest, I’ve never seen a trial where this much derogatory evidence is allowed” to provide character assassination. Mr. Carney again used the analogy of trying to convict a racist for the murder of an African American person on the basis that the suspect is racist. “Argument by analogy,” Judge O’Toole explained, “has its limits.” The judge decided to exclude some of the offensive content, but for the most part he overruled all of the defense’s objections.
Once the jury entered, Mr. Chakravarty continued his questioning of Christian Fierabend, an FBI agent with the Joint Terrorism Task Force. Mr. Fierabend was simply there to read chats; he was not an expert witness. He and Mr. Chakravarty read chat after chat of Tarek and various other people, mainly on the subject of securing Tarek and other people’s computer files and activity. At the time of these chats, Tarek was aware that the government was monitoring him closely, and he began to be careful about securing his online privacy. At one point, in a chat with Ahmed Rashad, Tarek mentions that he had been talking to a lawyer. The lawyer asked him if he had been involved in anything. Ahmed Rashad asked Tarek what he said and Tarek replied, “The truth, man: no.” The two chatted about the likelihood of the FBI visiting and intimidating people (“Well they’ve done it in the past”). Tarek expressed concern about having “stuff” on his computer, and it seems he had good reason to be paranoid. While the prosecution is trying to imply that Tarek is guilty and was trying to cover his tracks, it is clear that the prosecution’s strategy relies on using these videos that were legal to possess and view to try to prejudice the jury against him.
Mr. Chakravarty showed an email from Tarek to Salafi Publications, about fatwas they listed regarding martyrdom operations and whether or not they’re legitimate in Islam. Tarek argued for having a more well-rounded perspective, including other point of views regarding martyrdom in the name of God.
Mr. Chakravarty pulled up an email that Tarek had forwarded to some people that included images but no text: a soldier crying, a soldier shoving an Iraqi, two mujahideen, a coffin with an American flag. Mr. Chakravarty also had Mr. Fierabend read an email forwarded by Tarek that contains a khutba (sermon). Mr. Chakravarty asked Mr. Fierabend to read the first and third paragraph about how 9/11 was an attack on Zionist America and what Muslims response should be; Mr. Carney objected and asked them, in the name of evidence completeness, to read the second paragraph as well. The second paragraph pleaded listeners to consider what’s been happening to brothers and sisters in Palestine and other Muslim countries.
Court recessed for the 11 o’clock break and the defense, prosecution and judge discussed some business before the jury came back. Janice Bassil objected to a long list of the government’s exhibits. One such video, called “Note to Pakistan,” was never translated, edited or even disseminated by Tarek. We are starting to sense a pattern here. Ms. Bassil argued that it’s not even clear that Tarek ever watched the video. Ms. Bassil objected to the scope of the evidence being presented, such as the inclusion of the hard drives of two people from the UK who were being investigated on terrorism-related charges. “We are now trying a case we were not indicted on,” Ms. Bassil posited to Judge O’Toole, complaining about the fact that the government is trying to include evidence from people Tarek has never even met to prove that Tarek was part of a worldwide conspiracy. “Frankly, this is getting a little crazy.”
Mr. Fierabend was dismissed for the day, to be called back another time. Mr. Chakravarty called Graham Burridge, a computer forensics expert from London. Mr. Chakravarty listed numerous files, one at a time, and had Mr. Burridge agree that files he was naming were on one of the two computers of the UK suspects, establishing grounds for using this evidence later. Mr. Burridge answered most of the questions, “Yes, Your Honor” or “No, Your Honor,” looking at the judge when he answered. When Ms. Bassil greeted him for her cross examination, he greeted her back, “Good afternoon, ma’am.” Ms. Bassil, feigning offense and shock, replied, “I don’t get ‘Your Honor?’ I was waiting for that.” Everyone, including the judge and jury, laughed, and the joke broke up the monotony of a dull and confusing day. Ms. Bassil established that Mr. Burridge was contacted by the FBI 18 months ago, and that his assignment was the review of digital evidence between Tarek, Ahmed Abousamra, the three UK suspects, paying special attention to anything concerning the 39 Ways document, chat logs and emails. She asked if the video “Harbalmostadafin” had any link with Ibn_khattab, Abu Sabaaya (Tarek’s email and username) or Ahmed Abousamra? Mr. Burridge said that was out of the scope of his assignment. There was some confusion about the meta data (the data about the data) for the 39 Ways document and when it was created, which had been on the internet as early as July of 2003. Ms. Bassil asked him if he could tell if a zip file had been opened; he said in some cases he could, and that in this case he could tell that the video file “Hadied” had been. Questioning of Mr. Burridge ended without much ceremony.
With ten minutes left in today’s session, Jeffrey Auerhahn called Richard Dearsley, a detective sergeant from the London police. He was the one who investigated Mr. Tsouli and Mr. Aldaour, two people who Tarek doesn’t know and whose computers were entered into evidence in this case. Questioning ended there, and Mr. Auerhahn is expected to continue tomorrow.
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