MANHATTAN (CN) - After testifying via video against an al-Qaida propagandist this month, a would-be shoe bomber must explain why he should not appear in person the next time around, a federal judge ruled Monday.
In early March, convicted terrorist Saajid Badat appeared via closed circuit TV in Manhattan to tell a federal jury about his complicity with "Shoe Bomber" Richard Read during the trial of Sulaiman Abu Ghaith.
"We were supposed to bring down flights," the U.K.-based Badat testified , helping to seal Abu Ghaith's fate on charges carrying a potential life sentence.
Now, a different set of U.S. prosecutors want to call Badat to help convict Mustafa Kamel Mustafa aka Abu Hamza al-Masri.
The radical Islamic cleric is charged with conspiring to kidnap 16 tourists in Yemen, create al-Qaida training camps in Bly, Ore., and aide the terrorist group in Afghanistan.
Having reportedly lost much of his forearms and one of his eyes fighting the Soviet occupation of Afghanistan, Mustafa is commonly pictured wearing an eye patch and hooked hands.
Before his 2012 extradition, Mustafa spent seven years incarcerated in the United Kingdom for soliciting murder and racial incitement for his incendiary sermons at London's Finsbury Park Mosque.
At a hearing Monday, Assistant U.S. Attorney Patrick McGinley called Badat an "extremely important witness" to convict Mustafa on several counts. Badat is expected to link Mustafa to certain plots through Feroz Abassi, a fellow Brit and former Guantanamo detainee.
Mustafa's lawyer, Jeremy Schneider, noted that Abassi was released from Guantanamo in 2005.
Interrupting the hearing at one point, Mustafa told his lawyer that the British government had "compensated" Abassi for permitting his detention at the U.S. Naval Base in Cuba.
Because he ostensibly faces arrest by federal prosecutors in Massachusetts, where he remains under indictment, Badat has testified in the past through a video link to London.
Mustafa's attorneys claim that prosecutors are using that as an excuse to prevent them from probing Badat's cooperation with U.S. and British authorities under cross-examination.
Rejecting that argument, McGinley emphasized: "Nothing can be farther from the truth. The government would like nothing more than to put him on the witness stand."
U.S. District Judge Katherine Forrest remarked at the hearing that the government showed little indication that it tried to get him to appear in person before resorting to the alternative.
She noted that British court records state that Badat agreed to give testimony "in the United States."
McGinley said Badat interpreted that clause as allowing him to transmit his testimony into U.S. courtrooms from his U.K. home.
Mustafa's attorney Schneider countered to the judge, "It's not up to the witness, or the fugitive, to decide" how to interpret the language.
With trial slated to start on April 14, Forrest said she was "concerned" that prosecutors "did not push with the type of vigor" to get Badat to appear live. The parties face a 15-minute hearing later this week to discuss further proceedings. Forrest emphasized that only "exceptional circumstances" will permit her to allow video testimony again come trial time.
McGinley said this case fit the bill.
"This is not an everyday case," he said. "This is a very significant terrorism trial."
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