Inside the Osama Bin Laden Investigation

By Steven Emerson

At all relevance times from in or about 1989 until the date of the filing of this indictment, an international terrorist group existed which was dedicated to opposing non-Islamic governments with force and violence.  This organization grew out of the 'mehktah al khidemat' (the 'Services Office') organization which had maintained offices in various parts of the world, including Afghanistan, Pakistan (particularly Peshawar) and the United States, particularly at the Al Kifah Refugee Center in Brooklyn, New York.  The group was founded by Osama Bin Laden…From 1989 until the present, the group called itself "Al Qaeda" ("the Base)…

"Al Qaeda opposed the United States for several reasons. First the United States was regarded as an "infidel" because it was not governed in a manner consistent with the group's extremist interpretation of Islam. Second, the United States was viewed as providing essential support for other "infidel" governments and institutions, particularly the governments of Saudi Arabia and Egypt, the nation of Israel and the United Nations organization, which were regarded as enemies of the group."

From the indictment issued by the Office of U.S. Attorney Mary Jo White, U.S. Attorney, Southern District of New York, October 1998.

Following the bombings of the American embassies in Kenya and Tanzania in August, the speed in which U.S. prosecutors were able to marshal new evidence against the Bin Laden terrorist empire was nothing less than spectacular. In early October 1998, federal prosecutors in New York released a 50-page indictment of four top aides to Bin Laden. The indictment outlines a terrorist conspiracy dating back to 1989 – a secret organization headed by Bin Laden called Al Qaeda.  A month later, on November 5, prosecutors unveiled a superseding 238 count indictment, which also included Osama Bin Laden and his military commander Mohammed Atif, in addition to the four aides names in the earlier October indictment.  The indictment cited (1) efforts by Bin Laden's aides to acquire weapons of mass destruction to use against the United States, (2) operations of a terrorist network in about 20 countries and (3) the active collaboration of other terrorist groups and movements in attacking American targets, including the Al-Gama's Al-Islamic (under the titular control of Sheikh Omar Abdul Rahman), the Sudanese Islamist government, and Hizbollah, in launching terrorist attacks on American targets in Yemen, Saudi Arabia, Kenya, Tanzania, and Somalia since 1992.  The specifics of the terrorist conspiracy were laid out in a remarkably detailed document that cited specific meetings during a six-year period when Bin Laden and his lieutenants conspired to carry out acts of terror against the United States. U.S. Prosecutors began unfolding a criminal conspiracy case against the Bin Laden network that was stunning in the details so far amassed.

From August 7, 1998 – the date of the twin bombings-until two months later, the combined efforts of the FBI, the Justice Depart, INS, a special CIA task force, at least two dozen foreign intelligence and law enforcement agencies, and the prosecutorial leadership of Mary Jo White, U.S.  Attorney for the Southern District of New York, produced a picture of the hitherto unknown Bin Laden empire that was extraordinary in its scope.  The information publicly released in the indictment demonstrated that investigators and prosecutors had collected a far greater amount of intelligence on the Bin Laden terrorist network; most of his data had not been released. But according to sources familiar with the investigation, investigators have amassed a vast amount of data connected to Bin Laden, including names of dozens of suspected operatives at various levels of the Bin Laden Pyramid, locations of bank accounts, names of front companies and Islamic charities that served as conduits for terrorists, types of weapons acquisitions, and even the reconstructed movements of Bin Laden during the last two years.

The primary keys to the dizzying unraveling of the Bin Laden network: the arrest of three top Bin Laden aides immediately after the bombings and who are in U.S. custody; intelligence provided by two top Bin Laden informants who have testified before the New York grand jury on their contacts and connections with Bin Laden; information provided by other informants; intercepts collected by electronic intelligence; information provided by foreign intelligence and law enforcement agencies; and the retrieval of thousands of pages of Bin Laden documents, scores of computer disks, videotaped threats, and a host of other documentary evidence seized from raids on Bin Laden fronts in Africa, Albania, other areas of Europe and the United States. One of the biggest bombshells of the investigation was the revelation by New York Times that Ali Mohammed, a top aide to Bon Laden had been secretly arrested in the United States in September and held on sealed charges.  Mohammed's credentials were rather unique: A one-time Egyptian Army officer, Mohammed acquired U.S. citizenship in 1985 and enlisted in the U.S.  Army where he served as a sergeant at Fort Bragg between 1986 and 1989. During that time, Mohammed – himself a fundamentalist- began training Islamic militants in New Jersey in carrying out subversive warfare against the Soviets in Afghanistan; he also began leaking classified documents (see article page 28) to conspirators in the World Trade Center bombing jihad conspiracy.

Osama Bin Laden has been the focus of a federal grand jury investigation in New York since 1996, but there had been little momentum in the beginning. At least one top Bin Laden operative, Wali Khan Amin Shah (who had been arrested in 1995 in the Philippines, along with co-conspirator Ramzi Yousef, for their attempts to destroy 11 American aircraft), began cooperating with the grand jury following his and Yousef's conviction. (Yousef was later convicted of building the World Trade Center bomb.) There had been other Bin Laden defections and arrests, in Saudi Arabia and in Egypt, but the intelligence gleaned from those interrogations was still limited. Although substantial pieces of information had been collected, federal prosecutors and FBI officials were struggling to piece together a comprehensive portrait of the Bin Laden terrorist empire.

In 1996, the State Department released a three-page, CIA-prepared "white paper" on Bin Laden, but intelligence agents clearly were unsure about how to configure the pieces of the jigsaw puzzle.  For example, the 1996 State Department "white paper" cited Bin Laden's role in forming the "Islamic Salvation Foundation, or Al Qaeda" for purposes of organizing Arab recruits for the jihad in Afghanistan.  Federal officials determined only later on that Al Qaeda was in fact a secret organization and not a public charitable cover; moreover, it was not one and the same as the Islamic Salvation Foundation – one of Bin Laden's numerous Islamic charities – but rather the secret name (meaning the "base") used only by a limited number of Bin Laden operatives.

By 1997, the grand jury in New York had begun calling several key witnesses in an effort to indict Bin Laden and some of his top aides, including those who had lived on and off in the United States.  One person called before the grand jury was Wad El Age, who had helped set up Bin Laden's terrorist infrastructure in the Sudan and Kenya and elsewhere. From 1987 through 1990, EL Age lived in Tucson, Arizona, and from about 1991 through 1992, in Arlington, Texas, where he returned in 1997 after having set up Bin Laden's terrorist front overseas.  Before the grand jury, prosecutors asked El Age about his connections to Bin Laden and whether, for example, he was familiar with or had met Bin Laden's top military commanders, Abu Ubaidah al Banshiri – who had drowned suspiciously in Lake Victoria in 1996 – and al Banshiri's successor, known as Abu Hafs al Masry.  El Hage denied to prosecutors that he was familiar with them or that he was aware of the code names used by Bin Laden's henchmen.  In a bail hearing held in September 1998, Prosecutor Patrick Fitzgerald revealed that not only had El Age lied about his role in the Bin Laden organization, but that he was "being investigated for his involvement in attempting to obtain chemical weapons and for his involvement in providing logistical support to the people who were attacking people in Somalia."

At the time that El Hage was initially interviewed by the FBI and brought before the grand jury in the fall of 1997, officials say that El Hage had not been the main target of the grand jury but rather someone who was in a position to build a case against others and who had, according to federal officials, voluntarily provided nuggets of information to FBI agents. The purpose, at the time, was not to build an indictment against El Hage, but to pressure him to agree to cooperate more fully with the FBI. El Hage ultimately turned into a recalcitrant witness and provided false testimony to prosecutors. After the bombings in Kenya and Tanzania, a search was conducted of Bin Laden's front groups in Nairobi where incriminating were found that showed additional incriminating references to El Hage. The information abetted by that provided by a confidential informant, showed that El Hage was much more a top Bin Laden operative than had been previously thought.

But before the new information was acquired about the Bin Laden network, a key source of critical information was provided by Wali Shah. He had testified about weapons acquisitions and finances.
His testimony to the grand jury was considered pivotal in building a case against Bin Laden. But there were doubts about whether it was strong enough to be considered a smoking gun. Within the elite group of prosecutors and law enforcement agents working on the Bin Laden investigation, there was no consensus as to whether the evidence collected thus far had met the traditional threshold deemed necessary for a conviction.  "Everyone wanted to indict the sob" recalled someone privy to the deliberations, "but there was a major gap between what we knew from the intelligence and what we could use as admissible evidence."

There were other considerations, as well.  "There was no sense getting an indictment of Bin Laden if it wasn't going to stand up in court," recalled a person close to the prosecution.  "We felt it would be a disaster if Bin Laden was indicted on weak evidence or if he could tie us under a lengthy discovery argument that would undermine the government's case against him." ("Discovery" is the right of the defendant to ask for and usually receive nay document that is considered exculpatory or pertinent to the defendant's case.) In Bin Laden's case, he would almost certainly request that the U.S.  Government provide all records of U.S. assistance to the mujahideen, or holy warriors, during the anti-Soviet jihad in Afghanistan.  Therefore, the case against Bin Laden would have to be airtight.

On February 23, 1998, the urgency among law enforcement to do something soon suddenly increased. Bin Laden issued a fatwa (an Islamic religious ruling) calling for Muslims to kill Americans and Jews anywhere in the world. It was the first time, the CIA noted in a memorandum released to Senator Jon Kyl (R-Arizona) on the morning he was chairing a Senate hearing examining the scope of foreign terrorism in the United States on February 24, 1998, Bin Laden had authorized terrorist attacks on American civilians throughout the world.

The farwa concluded with a plea to the faithful, "We – with God's help – call on every Muslim who believes in God and wishes to be rewarded to comply with God's order to kill Americans and plunder their money wherever and whenever they find it." Bin Laden was not the only one to sign the farwa. He was joined by Ayman al-Zawahiri, a leader of Egyptian Jihad; Abu-Yasir Rifa'I Ahmad Taha, a leader of Egyptian Al-Gama'a Al-Islamiya; Sheikh Mir Hamzah, secretary of the Jamai-ul-Ulema-e-Pakistan; and Fazlul Rahman, Amir of the Jihad movement in Bangladesh. In eliciting the official collaborative sponsorship of this fatwa with these other terrorists, Bin Laden showed that he could easily extend his reach.

Although Bin Laden had collaborated with these terrorist leaders (and others as well) since 1991, Bin Laden clearly was intent on taunting the United States, who he had accused of being a "paper tiger." In the Fall of 1996, Bin Laden had issued a 60-page fatwa – which he dubbed the Ladanese Epistle – that formally constituted a formal declaration of war against the United States.  The Epistle was – and still is – a remarkable tome because of his hitherto unexpressed articulateness and knowledge of militant Islamic theology.  The Epistle dripped with rage against "crusaders" (the Christian West) and Jews, invoking violent incendiary citations from Islamic militant theology that mandated a war to avenge the "attack on Islam." (In fact, the Epistle was considered so "brilliant" that Bin Laden was forced to defend himself from charges raised publicly by others in the Islamic community that he had not personally written the opus but rather had used a ghostwriter.) The Epistle, albeit paranoid showed that Bin Laden's rage against the United States included nearly every adverse event suffered by the Muslim Ummah (nation) since its inception.

The American media had virtually ignored the 1996 Ladenese Epistle, a fact that had apparently not gone on unnoticed by Bin Laden himself.  As a result, he began giving interviews to Arab and Western journalists from his hideout in Afghanistan in which he carefully repeated his avowed threats to attack the United States. The February 1998 fatwa, not unlike earlier declarations, did not receive a lot of attention in the American media. Some media outlets, like CNN, conspicuously avoided any reporting at the time of the fatwa to kill Americans and Jews, a decision stemming, according to dissident CNN insiders, from CNN's notorious tradition of self-censoring reports and news that might adversely affect the image of Muslims worldwide.  But inside the government, there was keen interest and a deep abiding concern that Bin Laden was a very dangerous person who was determined to unleash considerable death and destruction on American targets.  The only question was when!

Through foreign intelligence channels, timely analysis of electronic intelligence overseas, and the information gleaned from several informants, federal officials' worst fears were confirmed: Bin Laden intended to strike against the United States in a series of bomb attacks, although the identity of the targets could not be determined. The New York grand jury moved into higher gear, meeting more frequently.  Protected by a phalanx of U.S.  Marshals, Wali Shah would be shepherded into the grand jury meeting room; his testimony became more critical in outlining the components of a possible indictment against Bin Laden.  The Bin Laden supported plan of attacks on American aircraft in the Philippines could provide one set of charges, but the evidence directly tying Bin Laden to the terrorist master plan was circumstantial.  As for other terrorist attacks, such as the lethal bombings of American servicemen in Saudi Arabia in 1995 and 1996, the evidence gathered thus far was weaker. In 1997, the arrest of Hani al-Sayegh, suspected of participating in the 1996 attack on U.S.  troops in Saudi Arabia, and subsequent extradition to the United States, had provided prosecutors with additional hope that another link in the chain in the Bin Laden network had been established. But the case against al-Sayegh-and presumably against Bin Laden – soon fell apart after he recanted his confession and withdrew his guilty plea.

Yet, as the aggregated weight of useable evidence increased against Bin Laden by the spring of 1998, federal officials finally felt confident in pursuing an indictment against him – although the indictment would have to be sealed to have any hope of actually arresting him.  A spirited debate erupted among officials at FBI Headquarters at 26 Federal Plaza, the U.S.  attorney's Office at 1 St.  Andrews Place in lower Manhattan, the Justice Department in Washington and other national security offices. How could Bin Laden be arrested? Was he not, by virtue of his refuge of Afghanistan, totally beyond the reach of American law enforcement?  What about interdicting him as he traveled? Was their intelligence available on his travels?  What about sending a team of commandos into Afghanistan to arrest him?  And if an arrest were not feasible, why issue an indictment prematurely?