Amputee Cleric Must Face All Terror Charges
MANHATTAN (CN) - An Islamic preacher accused of conspiring to set up a terrorist training camp in Oregon and helping to abduct tourists in Yemen must face all charges against him, a federal judge ruled.
U.S. District Judge Katherine Forrest left intact the 11-count indictment against Mostafa Kamel Mostafa, also referred to as Abu Hamza and Abu Hamza al-Masri. European courts have used the alternate spelling, Mustafa.
Commonly pictured wearing an eye patch and hooked hands, the radical cleric is said to have lost much of his forearms and one of his eyes fighting the Soviet occupation of Afghanistan.
Judge Forrest said she'll decide during a trial next year whether the government's references to al-Qaida are inflammatory.
The indictment alleges that, between December 23 and 29, 1998, Mostafa conspired to detain U.S. nationals by providing the leader of the Abyan faction of the Islamic Army of Adem with a satellite phone.
Mostafa allegedly received three phone calls at his home from that satellite phone on Dec. 27, 2004, one day before 16 tourists, two of them American, were taken hostage in Yemen.
Prosecutors say Mostafa spoke on the phone with a co-conspirator on Dec. 28, giving advice about the kidnapping and agreeing to act as an intermediary.
The next day, Mostafa allegedly ordered 500 British pounds worth of additional airtime for the satellite phone used by the hostage takers. Meanwhile, the Yemeni military tried to rescue the hostages. With the hostages serving as human shields for their captors, four were killed while several others were wounded in the rescue.
Mostafa also allegedly conspired to create a jihad training camp in Bly, Ore., by stock-piling weapons and ammunition in the United States.
"Defendant is alleged to have concealed the nature, location, source and ownership of materials support and resources, knowing and intending that they were to be used by a foreign terrorist organization (al Qaeda, led by Osama Bin Laden) in preparation for, and in carrying out, killing, maiming and injuring persons and property in a foreign country," Forrest wrote.
Mostafa is also accused of traveling to Long Island to raise money for an individual to travel to Afghanistan to wage violent jihad.
In November 2000, he is accused of traveling from London to a jihad training camp in Afghanistan, where he introduced a co-conspirator to arrange safe houses and lodging in Packistan, and safe passage and travel into Afghanistan.
Two co-conspirators allegedly wound up traveling to Afghanistan, and in late 2000, the co-conspirators delivered compact discs containing Mostafa's statements to individuals located in the territory of Afghanistan controlled by the Taliban.
While in Afghanistan, Mostafa sought out a front-line commander of al-Qaida and discussed plans with his co-conspirators to set up a computer lab in Kandahar, Afghanistan, to service Taliban officials, according to the indictment.
On Sept. 6, 2001, Mustafa posted messages on a website "Supporters of Shariah" or "SOS," urging his followers to donate money, goods and services to Taliban-sponsored programs in the area of Afghanistan controlled by the Taliban.
In refusing to dismiss the complaint Friday, Judge Forrest deemed the allegations of the complaint "plainly sufficient."
"There is no requirement that the indictment contain allegations of defendant's presence in the United States, actual communications into or out of the United States, or transaction of business within the United States. Rather, the determinative issue is whether defendant's actions were calculated to harm American citizens and interests," she wrote.
The judge also refused to distinguish between hostage-taking and intent to cause harm.
"In short, each of the counts alleged to have an insufficient nexus between defendant and the United States all concern or relate to terrorists (members of al Qaeda) or the al Qaeda organization," Forrest wrote. "At the time that the conduct is alleged to have occurred, there was no doubt that the United States considered al Qaeda a security threat, and that al Qaeda had made public its desire to bring harm to U.S. interests and people."
"Defendant also worked with co-conspirator 2 - both with respect to raising money in the United States and in terms of providing other goods and services to the Taliban," she wrote. "That defendant is not himself alleged to have set foot in the United States is irrelevant to extraterritorial application."
Trial is set to begin March 31, 2014, on charges filed in Manhattan after Mostafa's 2004 arrest in England. Mostafa was extradited to the U.S. in 2012.
Defense lawyers argued that prosecutors cannot tie Mostafa to the kidnapping with the mere allegation that he was on the telephone and advising hostage takers during the hijacking.
Forrest said the argument is "simply wrong."
"Even so, defendant is alleged to have done more: to have equipped the hostage takers with a means of communications - which, for hostage taking to achieve its purposes can be a critical tool - and have purchased additional minutes so that the hostage takers could succeed in their criminal activities," the opinion states.
She also said that "discovery in this case has been voluminous," and "at the end of the day, there are only a few events really at issue."
The ruling additionally refuses to consider whether references to al-Qaida in the indictment should be stricken as irrelevant and prejudicial.
"These surplusage issues need not be fully addressed at this time, however," Forrest wrote. "Courts in this district routinely await presentation of the government's evidence at trial before ruling on a motion to strike."