This morning the court was informed that one of the jurors had a family emergency and would be unavailable until further notice. It was decided that, rather than suspend the trial until the juror was back, the juror would be excused and one of the 4 alternates would step up to take fill the role.
JC Cross EK (continued)
Once this matter was handled, Jay Carney (JC) continued his cross-examination of Evan Kohlmann (EK) by beginning with the topic of Yemen. EK agreed that he would consider himself as having expertise in certain aspects of Yemen (despite the fact that, again, he does not speak Arabic, nor has he ever travelled to Yemen). He relies heavily on news articles. He affirmed that in November 2001 the president of Yemen, Ali Abdullah Saleh, met with George Bush Jr. to discuss eliminating the presence of Al Qaeda (AQ) from the country. According to EK, he promised to target, jail and kill leaders said to be of AQ and work in coordination with the US to conduct drone attacks. EK agreed that AQ was “on the run”, no longer welcome in Yemen, and that many were held prisoner until an infamous prison break in ’06.
JC didn’t stay on the topic for long, and moved onto the topic of peer review. EK has mentioned several times that his work is subject to peer review, that experts in his field go over his work to make sure its worthy of publication. JC referenced Marc Sageman, as he had previously during his cross of EK, as such an expert. EK agreed that he has described an informal process of peer review he uses for his work, involving sending a mass email with a new piece to several colleagues requesting their thoughts. Another form of “informal peer review” that he uses is the question and answer periods when he speaks at conferenes. JC asked him about the formal peer review process that is done by publishers before deciding whether or not to publish a piece submitted to them. The process involves the publisher sending the writing out to experts in the field who, many times annonymously, go through the piece and speak candidly on their thoughts. EK has stated before that virtually everything he writes is carefully reviewed by collegues, desrcibing the process he goes through as peer review.
JC very briefly then returned to yesterday’s issue of EK’s “Degree in Islam.” EK protested by stating that he called it a certificate and that JC was the one who called it a degree. JC calmly reminded him that he referenced EK’s own words in a radio interview where he called it a “degree in Islam.” JC asked EK if he recalled that, according the the certificate program’s description, certificate programs carry no special weight outside the immediate university community. EK claimed to not remember that.
JC then asked a series of questions to inquire about the amount of money that EK has been paid for being a “terrorism expert” since 2005. EK agreed that it has been a very lucrative part of his career. He stated the he typically billed by the hour, an exception being a flat rate when testifying for the US Military at Guantanamo Bay. He affirmed that when he first began testifying in these cases he charged about $200/hr. In 2006 he testified in a case for $225/hr. In 2008 he was testifying for a rate of $250-300/hr. In 2010 he testified for about $300/hr, saying that the amount varied slightly depending on the case. Then finally in 2011 he agreed that he has testified for $400/hr, but that, again, it ranges. He stated that now he testifies at a rate of $300-400/hr, mostly about $350/hr. JC mentioned that in this case, the 62 page report that EK provided to the prosecution had significant portions that were copied verbatim from different reports he prepared for other cases.
JC moved on to ask EK about how much he made total for being a witness or potential witness from 2006-2010. EK said he didn’t remember, so JC had him review his financial documents that the defense had subpoenaed him to bring for his testimony. He admitted that while he assumed he’d be asked such questions, since he’d been subpoenaed, he only very briefly reviewed the documents. After a few minutes and some basic math, he concluded that he had been paid $516,00-520,000 within that time period. JC then asked him how much he had been paid by the FBI over that period. He quickly responded $50,000. JC asked him about how much he’d made from foreign governments for testifying. He calculated $389,000. He also testified that he makes about $1,500 per speaking engagement which he said he typically does 2-3 times a week (excluding, of course, a period of sickness he repeatedly mentioned that had earlier this year). He also confirmed that he was paid $20,000 by the US military for preparing a video for a case from a collection of video clips, photos, etc. that he had.
When asked, he estimated that his overall intake from working with the FBI, federal prosecutors, and foreign governments accounted for about 40% of his annual income. He stated that the other 60% includes payments he receives for his contract with MSNBC, working with private clients, and speaking engagements and that he last received payment from NEFA, Nine-Eleven Finding Answers, last May.
JC then changed the topic, first having EK agree that the purpose of social sciences is neutral and in depth study of data to reach a conclusion. With that agreement, he asked if in this case the only material that EK looked at was the specific material the government selected for him to review. He said this was true. He didn’t look at any witness statements. He didn’t look at any FBI reports or grand jury testimony. No transcripts from the daily trial proceedings. JC then repeated that EK had testified in federal trials on 20 occasions, specifying that all 20 times were for the prosecution. JC asked if he’d ever declined to testify for the prosecution in a case. He responded that he had once because he didn’t feel like he knew enough about the organization that the government was interested in. JC then asked if he’d ever been asked to testify for the defense in a case. He said that he had once. JC pointed out that in 2010 he said he hadn’t, EK agreed, saying that had been true at the time. JC also pointed out that in other testimonies he said he’d been asked twice. EK explained that there had only been one serious request. JC concluded that conversation by reiterating that every instance that he’s testified has been on behalf of the government.
The question of security clearance came up again, briefly. JC re-established that because he didn’t have security clearance, thus access to classified information, EK relied and focused on open source. To the relief of those in the audience, and most-likely the jury, EK gave a simple response agreeing. Aloke Chakravarty, however, literally jumped out of his seat objecting and stating that this had been discussed at length the yesterday, before realizing that JC was only using it as transition. JC listed video and audio recordings released by “terrorist organizations” as examples of open source information that EK relies on, stating that they are usually available for sale on the web. When EK was hesitant to label the videos as propaganda, JC launched into a series of questions regarding the propaganda in general. He also pointed out that on NEFA’s website such videos are labeled as “Propaganda Videos.” JC also mentioned magazines and postings on web forums (you know, the “jihadi” ones, of course) as open source material. EK has claimed several times that he has a registered account on virtually every single forum out there. At this point, JC asked him to state which forums he isn’t registered on. He gave the names of two forums, Ansar Al Mujahideen and At-Tibyan Publications. It is interesting to note that he hasn’t had an account on Tibyan, the focus site in this case, a forum which he has described as “very significant”.
JC asked EK about his claim that he has done field work. He asked which countries EK has travelled to. He’s travelled to Saudi Arabia for a maximum of a week, to Qatar for 2-3 days , and to Jordan for a week. Each trip was for conferences and the only people he dealt with while in those countries were the participants of the conferences and the governments. None of these experiences were instances of field work. He admitted that, while field work is an essential part of social sciences, he has never done field work in a country where the native language is Arabic.
JC said that EK has testified that he has done “undercover work.” He responded that some would describe it as that. JC asked, “has Evan Kohlmann described it as that?” He has. JC referenced an example that has been used by EK; once EK attended a public protest in the UK, interviewing protesters and filming. According to EK, the undercover aspect was that he didn’t tell them that he was a terrorism consultant. At one point he said in regards to such “undercover work” that he was “taking a risk”, that “nobody else is doing it”, that “there has to be someone to go out and get this [information]”, and “if nobody else does it and this info gets lost, that’s a travesty.” JC then asked EK about Rita Katz, an Iraqi who has a history of infiltrating fundraisers and conferences by “radical Islamic” groups. EK acknowledged that she was known for wearing a burka and speaking in the Iraqi dialect of Arabic to “fit-in” and in doing so had figured out which groups in the US were channeling funds to resistance fighters in Iraq. JC then went back to asking if EK considered standing on the side of a protest, recording them with their consent, to be undercover work. EK defended himself be demanding that he wasn’t on the side, he was in the protest, standing with the protesters. (Don’t laugh. We should all be thankful that this individual took risks and braved a public protest, concealing his purposes for being there and thus being undercover, for the greater good. Give the kid some props, huh?)
Through JC’s questioning, as he had in direct, EK asserted that it’s very important that videos by AQ get out, that it’s essential. He avowed that translating these videos is also tremendously important to AQ and that it’s critical to the success of AQ that people see these videos. JC then questioned if he was familiar with the NEFA site and if he was still listed as being affiliated with them. He was. He said he had worked with NEFA since 2005. He agreed that the organization has made video clips, like statements by Osama bin Laden and footage of training camps, publicly available on its site in a format that one could watch if visiting the site. One could watch excerpts from AQ videos on the site. The organization has also posted documents provided directly from EK, including statements by AQ leaders, primarily translated into English. EK said that many of the pieces were edited to remove some parts that were not germane to law enforcement, scholars, policy makers, analysts, etc. EK confirmed that he was confident that the material from his archive on the site was authentic AQ material.
Some time was spent on discussing the “39 Ways” document. EK testified that it is an AQ document and that the Arabic version was released on an official AQ site. However, he admitted that nowhere in the English translation by Tarek was there ever any reference to AQ, nor any actual manual-type material such as info on making a bomb. JC pointed out that while EK had identified a couple AQ logos for the court, in Tarek’s translation there were no AQ logos whatsoever. JC also mentioned that on the NEFA site there is an English version of the story of the expedition of Umar Hadid. He reiterated EK’s claims that translation is very valuable to AQ, that it helps to keep AQ in the news and keeps the public from forgetting the agenda of AQ. He then asks if EK ever found reference on Tarek’s hard drive to Al Fajr or anything other than screen shots sent to Tarek of Al-Ekhlaas.
AC Re-Direct EK
After a few more questions by JC, AC stepped up for a re-direct. He asked why EK doesn’t look at classified information. He responded that it’s difficult to see where the information is coming from, that government analysts say the materials are not always that helpful, and that human sources can be unreliable. (Unless of course they say something, truthful or not, that the government wants to use and claim as reliable…like Kareem? Or any of the other informants in this case, perhaps?) AC then restated what EK was given to review from this case: preserved hard drives. In other cases he has been presented with computer evidence, FBI reports and other evidentiary material.
AC addressed the point of pieces of EK’s report for the case being copied verbatim from other reports. EK stated that when there is a where evidence is identical, if certain documents surface over and over, if it’s the same significance it makes sense for him to copy the information . They also further discussed the importance of peer review. EK said that there are about 10-15 other similar experts who are fairly young, as computer and internet savvy is important. He said that they see each other at conferences.
AC asked him about his “undercover work”. He said that he approached radical violent extremists and “engaged in various activities” under the guise of a sympathetic student of Islam. He claimed to have hung out with a group of “extremists” for a couple weeks who even asked him to join them. (What AC forgot to ask was if this simultaneous with the time he attempted to grow a beard) AC then asked him the need for learning Arabic. EK stated that knowing Arabic wouldn’t have really allowed him to read these documents and that it’s more efficient to have a native speaker translating. They even sometimes initially use google translator when going through documents, he said. On that note, AC listed some of EK’s expenses, as if to justify the extremely disturbing amount of tax-payer dollars that he receives; translators, rent for his office, internet, software, his Manhattan apartment which AC described as “not cheap, huh?”. (Aww, the poor guy. Tough life.)
AC then asked what access EK had to Tibyan. He said that he had access to second-hand materials such as documents recovered from Tibyan and provided to him by law enforcement. AC asked what the purpose of putting jihad videos on the NEFA site was. He testified that it was to provide information to scholars, law enforcement, policy makers, analysts, etc., but that they only publish a “handful” because they “didn’t want to serve as a mouthpiece for AQ.” He then advised those in the courtroom not to go onto the site because they do track who visits through their IP addresses. (Is that a threat?)
AC finished his examination by pointing out that, in some chats found on Tarek’s hard drives, an individual sent Tarek a link to Al-Ekhlaas with the individual’s password. He also had EK describe some attacks that took place in Yemen during the period in which the president of Yemen was working on expelling any AQ presence. EK claimed that AQ’s presence was reduced between the years of 2002-2006 but that members could still operate.
JC Re-Cross EK
JC then approached with just a couple more questions and a few instructions for EK. JC displayed the NEFA website for EK, pointing out a few sections on the site. He then asked EK if he had just testified that they [NEFA] did not want to become a mouthpiece for AQ, h they didn’t want to post items to assist AQ. EK affirmed this and indicated, “I believe we are accomplishing this goal.” JC then pulled up a page on the site entitled, “Translations/ Transcriptions of Statements by AQ Leadership.” He had EK identify and count the number of documents listed on this page that were by 1) Osama bin Laden 2) Ayman Al-Zawahiri 3) other AQ representatives. For several long minutes the defense scrolled down as EK tallied the documents. “Keep going…keep going…keep going…keep going…” EK went on and on as JC scrolled down at his pace, allowing him time to count. Before even finishing the list, JC stated that it had been enough and asked for EK’s results.
There were 34 translated statements by Osama bin Laden.
There were 36 translated statements by Ayman Al-Zawahiri.
There were 33 translated statements by other AQ representatives.
JC then asked EK how many total edited AQ documents that was. 103, he answered.
JC then reminded him that he said that they didn’t want to be a mouthpiece for AQ. He told EK to count the “propaganda videos” on the site. As JC slowly scrolled down the page, EK focused as he counted each video. AC stood up, exasperated, and declared, “your honor, we would accept however many videos the defense says there are!” JC adhered to the request, immediately stating that there were 37 videos. EK claimed that not all of them were official AQ videos, and hesitated to agree that most of them were AQ videos before stating that 2/3rds of the videos were AQ videos. JC had no further questions.
The prosecution said they will be resting tomorrow and the defense arguments will begin!
** Now I must share with you all what may have been the most satisfying part of today. Some of you may recall that on Friday, when Charkravarty was questioning, Kohlmann said that he wouldn’t be here Tuesday (today) because he had a congressional testimony to give. He jokingly added, “as they say in Arabic, insha’Allah.”
Then yesterday, as the day ended, Chakravarty inquired as to how much longer the defense would spend on cross, reminding everyone that Kohlmann had a congressional testimony at 2pm. Carney responded, “I have a list of questions I intend to ask. If he answers them with yes or no responses, he’ll catch his flight. If he continues to give 50-word solliloque responses, he won’t make a flight NEXT TUESDAY!” (that’s a rough quote from memory)
The thought of him being on the stand today (Tuesday) and possibly missing his other testimony reminded a few of us of his “insha’Allah” comment! And sure enough, he missed his congressional testimony. Maybe next time he’ll understand and mean it when he says insha’Allah. **