MANHATTAN (CN) - Though he likened the request to scouring a London landfill for evidence, a federal judge opened a three-month window in the hunt for evidence lawyers insist will exonerate their suspected-terrorist client.
Khalid al Fawwaz was slated to stand trial in November on charges that he helped Osama bin Laden transmit his notorious 1996 Declaration of Jihad against the United States from an office in London.
Roughly two years after that fatwa, two bombs exploded outside U.S. Embassies in Kenya and Tanzania, killing 224 people, injuring thousands more, and foreshadowing the destruction that al-Qaida would wreak again on Sept. 11, 2001.
With several of the perpetrators of the attacks now dead or convicted, Fawwaz and an alleged co-conspirator, Abu Anas al-Libi, face a New York federal court reckoning. Their lawyers appeared in court on Wednesday with a last-minute bid to postpone their trials until early next year.
David Kirby, a grizzled lawyer from the Burlington, Vt.-based firm O'Connor & Kirby, appeared anxious and desperate for more time to seek evidence from a recalcitrant British government and obsolete computer diskettes found in his client's home.
U.S. District Judge Lewis Kaplan began the hearing extremely skeptical about giving Kirby the trial extension that he requested.
He compared the defense's quest with the diskettes to seeking exculpatory evidence in "solid waste picked up from Mr. al-Fawwaz's home from the London trash collector."
"Who knows?" Kaplan asked. "Maybe we will strike gold! On that theory, I would be digging in my backyard all night."
Quoting Alexander Pope, the judge quipped: "Hope springs eternal."
The hunt for British evidence proved to be an even trickier matter.
Earlier this year, Kaplan mailed a letter asking the British government to help al Fawwaz discover information about the group that owned the office where bin Laden's fatwa was transmitted.
Known as the Advice and Reformation Committee, al Fawwaz insists that the al-Qaida-linked group used to be peaceful until bin Laden's 1996 declaration. The terrorism suspect asserts that he distanced himself from the organization when it took a violent turn, and that British intelligence knows it.
The British High Court is expected to rule on whether to release the evidence by the end of this year, Kirby said.
Kaplan appeared far less sanguine about the prospects for resolution.
Even if the defense secures the secret files, the lawyers cannot prove that "there's any there there," Kaplan said, quoting Gertrude Stein.
Al Fawwaz's defense team also does not know whether an appeal of the British court's eventual decision will spell further delays, the judge added.
"I don't expect [proceedings to finish] by the end of the year," Kaplan said. "Neither do you, and neither do I expect does anyone in England."
Kirby countered that a London barrister expected a quick and favorable outcome for his client.
"If the British court says that [the U.K. government's] position is unreasonable and unlawful, I think that adds a different complexion to the matter," Kirby said.
The attorney suggested taking the issue "a step at a time."
Kaplan remarked pointedly that this very approach held up al-Fawwaz's extradition for 12 years.
Al-Fawwaz fought his extradition from the United Kingdom to the United States in drawn-out proceedings at the European Court of Human Rights.
Kirby assured the judge that he would waive a human rights court appeal should the British judiciary rule against them.
"We're not trying to make a mockery of this court's schedule," he emphasized.
Kaplan postponed the trial from early next month until Jan. 12, 2015.
"I have given this an enormous amount of consideration," he said.
Although he said that he would entertain another adjournment later, Kaplan added: "Nobody should be under any illusion that it's going to be easy."
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