Day 21: End of Dan Spaulding and “Reader” FBI Agent Daniel Genck
Nov. 23, 2011
The morning began with a series of objections by defense attorney Janice Bassil (JB). She objected to the videos being shown by the prosecution – 16 to date, and 5 more to be shown – featuring images of Mujahideen with guns fighting in various countries, the planes crashing into the WTC towers, speeches by various Al-Qaeda leaders (including Zarqawi, Zawahiri, and others), violence against American soldiers overseas, etc. She argued that the inflammatory nature of these videos makes this “evidence” prejudicial, aiming only to manipulate the jury’s opinion of Tarek by associating him with a barrage of irrelevant violent imagery. She cited the case of United States v. Al-Moayad – a case in which the defendant was being charged with conspiring to provide material support to terrorists without actually committing any violent acts – where a video was shown of a speaker at a wedding attended by Mo’ayad, discussing a Hamas bombing of a bus in Tel Aviv. The video, while not attributable to the defendant himself, gravely undermined the defense and had detrimental consequences on the outcome of the trial (the defendant was eventually convicted and sentenced to 75 years). JB asserted that the prosecution has shown more than enough inflammatory evidence to achieve their stated aim of illustrating Tarek’s “state of mind”, and that the remaining 5 videos should be excluded. Judge O’Toole denied the motion and admitted the remaining videos to be shown in court, stating that the “redaction of evidence” thus far (descriptions of rather than displaying some videos) “minimized unfair prejudice”.
CROSS – Daniel Spaulding
Defense attorney Jay Carney (JC) questioned DS about his testimony from the previous day. DS admitted to downloading a program called TOR that encrypted material he posted in order to hide his IP address, but eventually took it off his computer because, according to JC, “you felt that you did nothing wrong and you had First Amendment protection”. Prosecutor Jeffrey Auerhahn (JA) objected to this line of questioning by JC, which the judge sustained, asking JC to change his wording. JC attempted to reword the question twice, but was shut down by objections both times, which the judge sustained. JC then moved on to a question regarding a Martial Arts program at MIT that was referred to the day before. Tarek had discussed attending the class, which was open to the public, with DS.
JC: “This was for the purpose of physical exercise, correct? Not jihad training?
DS: “Yes, sir.”
JC: “And is it safe to say that my client could afford to lose a few lbs back in the day?”
DS: Laughter. “I suppose so.”
JC: “And you never had any conversation connecting this to jihad?”
DS: “No, sir.”
After establishing that the martial arts class an open, public physical fitness class like any other, JC moved on to ask DS about his trip to New York with Tarek and two other young men, Ali Aboubakr (witness – day 8/9) and Ibrahim Ismail. DS agreed that the purpose of the trip was to buy books, visiting various Islamic bookstores, and did not recollect any discussion of 9/11 or Al-Qaeda during the trip. They visited several locations, among which was Ground Zero, now a common tourist site. JC then turned to the photographs taken during the NYC trip. DS had answered that he was not smiling in the photos because he’s “not photogenic”. JC showed several banal, run-of-the-mill roadtrip pictures of the young men in a car and driving on a bridge in New York, a few of many pictures taken during the trip. DS said that their use of “code words” was often in jest, and that Tarek often made jokes poking fun at extreme views. JC also asked about the “theory of progression” the prosecution had alluded to the day before, saying Tarek talked about it in a “half-joking manner”. DS said he didn’t recall and JC showed him a paragraph of a forum posting – “does that refresh your memory?” “Somewhat.”
JC asked about the movie nights the group of friends regularly held, with DS confirming that they particularly enjoyed Jet Li movies and other action movies (“your circle liked watching action movies…typical of young men of your age group”), thereby disproving the prosecution’s claim that these movie nights were for watching “jihadi” films. JC then drew attention to the online chats and conversations that took place between Tarek and his friends – conversations that have been used extensively by the prosecution as “evidence”.
JC: “Tarek was sometimes crude, he made bad jokes, he could be gross, he sometimes insulted people, or said things that would be appalling to say publicly…but he said them in private conversations.”
DS: “Yes, sir.”
JC: “And you also made equally stupid guy comments?”
DS: “Yes, sir.”
DS admitted that he made comments that he sincerely regrets making, and would never make today. Among these distasteful comments was a posting on the Tibyan Forum praising the murder of Theo Van Gogh, a dutch filmmaker who was killed for making a film that aimed to defame Islam. Calling himself “Brother Mujahid” on the internet forum, DS also glorified the maiming and mutilation of US soldiers, specifically in reference to a particular incident involving the gang-rape of a 14-year-old Iraqi girl by American soldiers, the murder of her entire family and the burning of their home. In the aftermath of the incident, the unit that carried this act out was identified, two of its members were kidnapped and killed. “Brother Mujahid” (DS): “It’s heartwarming to see the American crusaders maimed and mutilated…” In addition, he used anti-Semitic language in reference to Israeli soldier Gilad Shalit. DS agreed that he deeply regretted these statements, and that his views have changed.
JC: “As you and Tarek got older, your views became more moderate. And you tried to persuade people of the principle of “Aman”, isn’t that right?”
DS: “Yes, sir.”
“Aman” is the covenant existing between Muslims and the non-Muslim that they reside in, ensuring that if a country allows one to practice their religion freely, that country must be protected, respected, and safe from attack by the individual. Tarek taught DS about this principle, and espoused it over internet forums and with conversations with friends, always citing the Quran and Hadith to back it up. Both Tarek and Spaulding were eventually kicked off Tibyan for having views that were too moderate. When DS found out about Tarek’s arrest in 2008, he said it was a “wake-up call”. The prosecution objected to this line of questioning, and both councils convened with the judge in a sidebar. Silly elevator music ensued.
Back from the sidebar, JC once again reiterated that DS called the arrest a “wake-up call”, and that it made him realize that their “harmless talk” was not without consequence. DS agreed to having made these statements, and to having posted an article on a forum in 2008 about what happens when Muslims become the target of the Feds.
Another objection by Auerhahn. Another sidebar. More silly music.
DS posted an article about agents infiltrating mosques and infringing upon civil liberties. Another poster on the forum named “Kamal” responded that it’s best to “keep your nose clean and stay out of trouble”. Another poster commented that he should “tell that to the hundreds of thousands of Muslims kidnapped by the CIA and taken to secret prisons where they are detained and tortured…their only crime was speaking out against US injustice…this is no fairytale, this has been widely documented…”. DS then asked “Kamal” if he even lives in the United States and whether he has had any run-ins with the FBI, stating that they are “evil, malicious people”.
JC: “However, you did not face the same fate as Mehanna. Do you feel assured that now you won’t be charged?”
DS: “I still worry about that sometimes.”
JC: “So you don’t feel that your testimony here will help ensure that you won’t be charged?”
DS: “That is not my intention for being here sir.”
JC: “But do you hope you don’t get charged?”
DS: “Of course I hope I don’t get charged.”
*No further questions*
PROSECUTION RE-DIRECT – Auerhahn
JA brought the witness’s attention back to the principle of “Aman”, asking if it also applied to attacking forces overseas, not just domestic attacks. DS hesitated before answering, “I don’t recall the religious ruling on that”. Frustrated, JA pressed on, asking “What if it’s a country that’s at war with Islam, like the US is in Iraq and Afghanistan? Is it then acceptable to fight their forces overseas?” DS struggled to answer, finally responding, “Theoretically, I guess you could…but you would have to have to give up your citizenship or residency in that country”.
JA: “So it would be permissible to fight American soldiers overseas.”
DS: “With that qualification…”
JA: (Exasperated) “Yes or no!”
DS: “With that qualification of giving up your citizenship, I guess, yes.”
The prosecution once again brought up the “Umar Hadid” video, asking DS what the message of the video was. He responded “to encourage support for Mujahideen in Iraq”. Auerhahn then showed a clip of the video, of a man stating that whoever sees the video or watches the CD should join in jihad. DS said that he hadn’t seen the video in several years and did not remember enough to determine its central message. Auerhahn then proceeded to try to equate “jihad” with “terrorism”.
JA: “Jihad refers to terrorists, right?”
DS: “Could you explain what you mean by terrorists?”
JA then showed one line from the 60-page document “39 Ways” to equate the two terms. The defense objected to the one line statement being taken out of context. Objection overruled. Auerhahn was notably irritable during this exchange, his hands shaking as he rummaged through pages of documents and records. He then asked about the Spaulding’s previous testimony about training “to be ready” and what that meant; DS gave a lukewarm answer, further frustrating the prosecution. DS agreed that, at the time, both he and Tarek believed that attacks on US servicemen were an appropriate response to them being in Iraq.
JA also asked about the expulsion of Tarek and DS from the Tibyan forum that the defense had brought up during cross-examination.
JA: “You said you were kicked off Tibyan for views that were too moderate. But moderation is a relative term…Is there another reason you were kicked off Tibyan?”
Carney objects. Sidebar.
JA: “Do you recall being accused of being sarcastic and rude on Tibyan?”
DS: “I don’t recall that, sir.”
JA: “How about Abu Sabaaya (Tarek’s internet handle)? Was he accused of harshness?”
DS: “I don’t recall.”
JA shows the witness a forum posting that is not shared aloud. “Does that refresh your recollection?”
DS: “It does not, sir.”
With growing frustration at Spaulding’s lack of memory, JA asked about a seemingly irrelevant incident – the “Khobar bombing” in Saudi Arabia in the 90s. He asked the witness when the bombing was, and when the invasions of Iraq and Afghanistan were. He then asked if the US ever invaded Saudi Arabia, to which DS answered no. At this point, Carney objected – “this is getting so far off field, your honor.” Judge O’Toole – “yeah, I agree. Sustained.” They then convened in a sidebar so Auerhahn could clarify his line of questioning.
Coming back, JA asked if the witness believed the attacks on servicemen in Khobar an appropriate attack. DS answered that he believed so at the time. JA then asked if the witness was familiar with Paul Johnson, to which DS responded that he had heard the name but did not remember specifics. The prosecutor explained that Johnson was an American helicopter engineer, not a soldier, who worked in Saudi Arabia and was kidnapped and beheaded. He asked if the witness thought this was justified. DS answered that he believed it was at the time.
JA: “And the defendant?”
DS: “I don’t recall, sir.”
JA shows a forum post by Abu Sabaaya about Paul Johnson. DS still does not recall.
JC objected due to this specific post already being referenced multiple times.
Judge sustained Defense’s objection. JA asked if DS was “bearing false witness” when he testified about Abusamra going to Pakistan for military training, and if he now wanted to alter his testimony because it was “incorrect”. JC objected once again. Sidebar.
JA: “I won’t have any further questions.”
After the break, before the jury was called back in, there were a few more court matters that needed to be dealt with. JB addressed her objection to a chat in which an individual that was not Tarek made a comment in regards to an “armed wing” to which Tarek did not acknoweldge or respond to. Another chat contained a discussion on the 39 Ways in which an individual, which again was not Tarek, stated in regards to the cover designed for the English PDF of 39 ways, “someone told me the cover reminds him of the anarchist cookbook and mein kampf”. Within minutes after protesting JB accusation that JA was taking things out of context with these chats, JA fumbled through an explanation of the relevance of the chat and in the process not only misquoted but also took the words in the chat out of context. Frustrated, JB pointed that out and reiterated the fact that the use of this chat would be extremely prejudicial with no probative value. The judge agreed with this particular objection and sustained it. JB then mentioned the government was planning on showing chats in which 39 ways was mentioned 15 more times, 3 more chats about encryption and 5 exhibits that were already shown to the jury. “Maybe I should just let them bore the jury. They hate it” she concluded. The judge agreed that he was concerned about the jury’s attention and the progress of the trial if such material continued to be shown.
FBI JTTF DANIEL GENCK (“The Reader”)
The jury reentered the courtroom and Daniel Genck, of the FBI’s Joint Terrorism Task Force, was called to the stand next to read a series of excerpts from emails, documents, and chats for the next hour and a half. Auerhahn pulled up an email from Tariq to someone named Almuwahhid concerning translations of various documents – “The Ruling Regarding Killing Oneself to Protect Information”, lectures by Abdullah Azzam “Alghorba” and “Tawhid of Action”, “The Importance of the Word”. Agent Genck was made to read numerous excerpts of these documents with no apparent pattern or line of questioning. All of these documents were posted on Tibyan Publications. JA and Genck alternated reading passages about jihad, fighting Americans in Iraq, etc. The rest was a drawn-out, aimless, and confusing jumble of countless, disjointed fragments:
- A chat between Tarek and Abusamra about Umar Hadid
- Photos of Abu Musab Al-Zarqawi
- Chat between Tarek and Abusamra about members of Tibyan and their emails
- Chat between Tarek and Abu Mundhir, including a CNN link about the arrest of “Abu Khubayb” (Ehsan Siddiqui) in Bangladesh
- Talk of clearguidance.com – precursor to Tibyan
- Chats about the translation of “39 Ways” with Abu Mundhir, including a “winky face” read aloud by Mr. Genck in one of the few, rare humorous moments in the seemingly endless string of monotonous excerpt-reading
- They then read excerpts from the elusive document, “39 Ways to Serve and Participate in Jihad”:
- “The world has announced its war on terrorism – or rather, jihad…; Muslims are left with no choice but that of jihad and the language of weaponry”
- Janice objects, asking for the context, and for the following paragraph to be read as well – a paragraph about invading armies who have “made orphans out of children, widows out of women”
- Auerhahn and Genck read the various “ways”, starting with #1 all the way through 39
- #34: Electronic Jihad – 2 major parts: discussion boards and hacking methods; “let us make jihad even if it is by the internet”
- In another fleeting glimmer of comic relief, Agent Genck mispronounces the phrase “War Wagers” as “War Waggers”. Snickers can be heard throughout the courtroom.
- Show that the references at the end of “39 Ways” include the documents translated by Tarek
Judge O’Toole decides this is an appropriate stopping point and court is adjourned for the day. The jury leaves. The lawyer of Kareem Abuzahra, the next witness to take the stand next week, motions to quash the defense’s subpoena to obtain tax returns, credit card statements, paychecks, and a whole host of other personal documents pertaining to Mr. Abuzahra’s finances, calling it a “fishing expedition”, “harassment of a witness” that is “invasive and burdensome”. Janice states that the defense requested this information because of the “extraordinary amount of cash” in Kareem’s possession – he paid for all 3 tickets to Yemen (in cash), gave Maldonado and Abusamra money to cover their travel expenses to Iraq and Pakistan (cash), reported a robbery in which $35,000 CASH was stolen from his home. JB said that the defense intended to ask the witness about the source of this cash and why he was so freely giving it away, seeing as his income and financial status was incongruent with the vast amount of wealth he had acquired. She maintained that these documents were necessary to ascertain the “truthfulness or un-truthfulness” of the witness. The government joined in Abuzahra’s motion, and said that it had disclosed the money it had paid him for “coffee and donuts”. Judge O’Toole agrees to grant the motion and quash the subpoena.