Full opinion text
MEMORANDUM OF DECISION MARK R. KRAVITZ, District Judge. Following a six-day trial in March 2008, a jury convicted Defendant Hassan Abu-Jihaad on two charges: (1) disclosing national defense information to those not entitled to receive it in violation of 18 U.S.C. § 793(d); and (2) providing material support to terrorists in violation of 18 U.S.C. § 2339A and § 2. The Government alleged that in 2001, while Mr. Abu-Jihaad was serving as a U.S. Navy Signalman aboard the destroyer, the U.S.S. Benfold, he disclosed classified information regarding the movement of the Fifth Fleet Battle Group, which included the aircraft carrier, the U.S.S. Constellation, to individuals in London associated with Azzam Publications, an organization that the Government alleged supported violent Islamic jihad. According to the Government, Mr. Abu-Jihaad knew or intended that the information he disclosed would be used to kill United States nationals. By its verdict, the jury agreed with the Government’s assertions. Mr. Abu-Jihaad now moves for judgment of acquittal and for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. See Motion for Judgment of Acquittal [doc. #268]; Motion for New Trial [doc. # 266]. Mr. Abu-Jihaad’s post-verdict motions are neither pro forma nor insubstantial. That is apparent from, among other things, the Government’s 112-page response to the motions. Since the Government’s case rested entirely on circumstantial evidence, and there was evidence in the record that favored Mr. Abu-Jihaad, his motions raise important questions regarding the quantum of evidence necessary to support a jury’s finding of guilt beyond a reasonable doubt, as well as the proper role of the court and the jury in our criminal justice system. And, of course, these motions arise in a case that from its inception has tested whether an individual accused of terrorism can receive a full and fair trial in the federal court system. At the risk of sounding self serving, the Court is firmly convinced that Mr. Abu-Jihaad received a full, fair, and impartial trial. Mr. Abu-Jihaad was represented by two experienced criminal defense lawyers, who were given access to experts, consultants, and investigators and to volumes of information provided by the Government in discovery. The Court decided numerous issues in advance of trial, ruling for the Government on some issues and for Mr. Abu-Jihaad on others. The jury was selected from a panel of more than 500 individuals who answered detailed questionnaires about their views and possible prejudices. Both sides agreed on each for-cause strike of potential jurors. Befitting the experience of the lawyers involved, the evidence at trial was submitted largely without objection and without dispute. The same was true of the Court’s jury instructions. The jury listened carefully to the evidence presented and to the Court’s instructions, and they deliberated conscientiously. For these reasons, among others discussed below, the Court does not believe a new trial is necessary or appropriate. Instead, the central issue raised by the pending motions is whether the evidence presented by the parties would permit a rational jury to find Mr. Abu-Jihaad guilty of both charges beyond a reasonable doubt. In particular, the motions focus on the proper inferences that could be drawn by a rational juror from the circumstantial evidence presented and whether the circumstantial support for a theory of guilt was equal to or nearly equal to a theory of innocence. For if so, a reasonable jury must necessarily entertain a reasonable doubt. After careful consideration, the Court believes that the evidence was sufficient to support a jury verdict beyond a reasonable doubt that Mr. Abu-Jihaad disclosed classified information. However, for reasons largely related to the language of the governing statute, the Court concludes that Mr. Abu-Jihaad’s conviction on the material support charge should be set aside. The Court is acutely aware that its decision will not be the last word on these important issues. Before turning to the pending motions, the Court would be remiss if it did not pause to note that throughout this case, it has been assisted by extremely able counsel on both sides. They have worked tirelessly and with great professionalism in support of their respective positions and to present the Court and the jury with all the tools needed to decide this case properly. The Court is grateful to them for their skill, sensitivity, civility, and candor. In the highest tradition, counsel for both the Government and Mr. Abu-Jihaad were scrupulously fair and candid with the Court and each other. The Court is particularly grateful to defense counsel, who volunteered for this difficult assignment and will not be properly reimbursed for all of the time they devoted to this case. I. The following description of the evidence at trial is related in the light most favorable to the verdict. See United States v. Triumph Capital Group, Inc., 544 F.3d 149, 158 (2d Cir.2008) (quoting United States v. Glenn, 312 F.3d 58, 63 (2d Cir.2002)) (on judgment of acquittal, stating that courts must view evidence in the light most favorable to the Government). While there is much dispute about the proper inferences to be drawn from the evidence, there is no dispute about the testimony and evidence presented at trial. The Court has taken some pains in this initial section to describe the evidence presented in considerable detail so as to aid in understanding the Court’s legal conclusions. Azzam Publications. In late September 2001, Supervisory Special Agent Craig Bowling of the Department of Homeland Security began investigating a group known as Azzam Publications (“Azzam”), which operated a number of related websites, including www.qoqaz.net (“qoqaz” meaning “Caucusus” in Arabic), www. azzam.co.uk, and its principal website, www.azzam.com. These websites were hosted in places like New York, Malaysia, Ireland, the United Kingdom, and other parts of the world. Azzam was brought to the Government’s attention by a Connecticut company that was then hosting www. azzam.com (“the website”). The investigation ultimately included a number of search warrants, subpoenas, and court orders allowing the retrieval of Azzam’s computer records. American and British authorities eventually began collaborating on the investigation, and some searches were undertaken in the United Kingdom in response to treaty requests by the United States. From 1997 through 2002, the family of Azzam websites contained information that promoted violent Islamic jihad, or “holy war.” Evan Kohlmann, an expert in international terrorism and the internet, explained that Azzam advertised itself as a provider of breaking news about conflict areas like Afghanistan, Bosnia, and Chechnya. Azzam marketed English translations of books written by its namesake, Sheikh Abdullah Azzam, who was instrumental in reviving the idea of violent jihad in the 20th century. Azzam glorified the cause of martyrdom in the name of jihad by telling the stories of martyrs. These biographies, according to Mr. Kohlmann, were “meant to show how individuals with no real connection to the jihad or to the mujahideen, including people living in western European countries and North America, people who had lived relatively normal lives, could all of a sudden jump up and join the mujahideen and become a hero figure among the mujahideen.” Azzam also published video and audio recordings extolling the exploits of the mujahideen in various places around the globe. One section of the website was designated a “jihad photo library,” which contained photos that claimed to have been taken “by the foreign mujahideen in Chechnya.” The photos were said to be “taken from actual events that took place,” and “are exclusive to Azzam Publications.” Some of the photos depicted ambushes on Russian forces by foreign mujahideen. Viewers could download video clips of influential foreign mujahideen leaders fighting in Chechnya or order longer videos by mail. Some of these videos were being newly marketed in September 2000, and their contents were described in the “Products” section of the website. In November 2000, the website warned its readers of an imminent “Joint U.S.Russian chemical attack on Afghanistan,” which would be targeting the Taliban. The website reported that the U.S. assault was meant to retaliate for the bombing of the U.S.S. Cole in Yemen only a month earlier in October 2000, an attack for which al-Qaida had publicly claimed credit. Azzam recommended that its readers immediately come to the Taliban’s aid by sending money or gas masks, or traveling to Afghanistan to provide battlefield medical services. The website provided a hyperlink to a news article from the Guardian, reporting that in 1998, the United States had fired cruise missiles at Usama bin Laden’s camps in retaliation for alQaida’s bombing of U.S. embassies in East Africa. The website sought cash donations for the Taliban and offered a copy of Usama bin Laden’s “Declaration of War Against the Americans Occupying the Land of the Two Holy Places.” That Declaration asked Muslims to rise up in arms against the United States and to kill U.S. military personnel in the Arabian Peninsula as a way to rid the Peninsula of infidels. The Battlegroup Document. Beginning in December 2003, British authorities had been involved in an investigation of a man named Babar Ahmad, who worked as an information technology expert at Imperial College, London. Detective Sergeant Ian Vickers of the London Metropolitan Police’s counter-terrorism command, who had been involved in the investigation from its inception, testified that the investigation came to encompass Mr. Ahmad’s involvement with Azzam. On December 2, 2003, British authorities searched Mr. Ahmad’s workplace, as well as his home and his parents’ nearby residence, where he had lived just prior to the investigation. In the front bedroom, Detective Sergeant Ian Elgeti testified that he found a floppy disk on the shelf of a wardrobe. On the disk was written “password: lp.” Other items relating to Mr. Ahmad were also seized from the same bedroom. Forensic analysis of the floppy disk revealed that it contained a number of files, including a Microsoft Word document named “letter, doc.” This file was password protected with the password “lp,” which had been written on the front of the diskette. The file contained a three-page unsigned document discussing the anticipated deployment of U.S. Naval Forces from the west coast of the United States to the Persian Gulf in the spring of 2001. The document contained the following notation in brackets: “[Necessary changes made in grammar and spelling, and for the sake of clarity.]” This notation, along with other bracketed notations throughout the document, suggested that the document had been edited by someone. The document—which was often referred to at trial as the “Battlegroup Document”—purported to predict ship movements beginning on March 15, 2001, and therefore, the information contained in the document appeared to have been provided before that date. The first page of the document began as follows: In the coming days the United States will be deploying a large naval/marine force to the Middle East. This will be a two group force: the Battle Group (BG) and the Amphibious Readiness Group (ARG)—these groups will be replacing the already deployed groups in the gulf. The BG mission is to hold up the sanctions against Iraq, e.g. patrolling the No-Fly Zone, carry out Maritime Interception Operations (MIO) or launch strikes. There is a possibility that the ships and submarines that are capable will carry out a strike against Afghanistan. Main targets: Usama and the Mujahideen, Taliban etc. A two star admiral COMCRUDESRON 1 (his title), a high ranking officer of the BG said that “there will be certain ships of this BG sitting off the coast of Pakistan with ‘launch pads.’ ” Most of the ships that are part of the BG will deploy on March 15 2001 leaving their home ports out of California and Washington State. They will meet up with the other ships that are part of the BG which are stationed in Hawaii. Their first port stop is Hawaii on March 20, 2001, where some ships will load Tomahawk D missiles. The same missiles used on Afghanistan and Sudan. It has a warhead and 166[mm?] fragment bomblets. Then the whole BG will head towards Australia. The main ship with high ranking officials will be at Sydney on April 6 2001, other ships-Melbourne, Perth, Bunbary etc. The BG will be going through the straits of Hormuz on the April 29 2001 at night, cutting off certain “infocoms” and “Emcoms” to divert their enemies on how many ships are actually coming through. This will be a night time set-up. Beneath this text was a diagram labeled “Formations Through Straits,” which purported to show in a two-column formation each of the components of the battlegroup. Thereafter, the document described the capabilities of each vessel in the battle-group, led by the aircraft carrier, the U.S.S. Constellation, plus smaller vessels including a destroyer named the U.S.S. Benfold. The document then listed the ships to be included in the Amphibious Readiness Group (“ARG”), which was prefaced by the notation that “[tjhese consist of three ships which are deploying out of homeport San Diego, March 14 2001.” The itinerary for the ARG was less detailed than that of the battlegroup: “The ARG port visit will be in South-East Asia before heading to the ME. Thailand (their favourite), Singapore, etc.” The document contained the English spelling of the word “favorite.” The document described the ARG operations as follows: Mission covert ops for special forces, evacuate embassies or beach/land assaults. Marine train off the coast of Qatar or Jordan or maybe even Saudi Arabia. American arms: Berreta 9mm and tactical shotguns; plus 4 man Rhib team no arms connected to boat or personnel. Canadians: same set-up, better weapons, MP5 and 9 mm pistols. For risky missions, usually done alone by Navy Seals, Vessel-board search and siege teams (VBSS). These teams carry out MIO in the Northern part of the Gulf. The document ended with an overall assessment of the battlegroup’s vulnerabilities: Weakness: They have nothing to stop a small craft with RPG etc, except their Seals’ stinger missiles. Deploy ops in Gulf 29 April-04 October. 29th APRIL is more likely the day through the Straits. For the whole of March is tax-free—a moral booster. Many sailors do not like the Gulf. Please destroy message. Forensic Analysis of the Battlegroup Floppy Disk. On the floppy disk containing the Battlegroup Document were several other flies, some of which were encrypted, that directly related to the administration of Azzam and its websites. For example, one encrypted file on the floppy disk was entitled: “FOR THE GUY IN CHARGE TO READ (01_08_01).zip.” Agent Bowling explained that Microsoft Word automatically Alls in the author field when a document is created, but that a user can later change the contents of the field by right clicking the file outside of Word, and editing the author field. There was a one-minute gap between the time the file was “last saved” and “last modified,” which indicated to Agent Bowling that the author field had been modified outside of Microsoft Word by right-clicking on the document icon after the document had been closed. Another encrypted file, “readme 31 July 2001.txt,” was apparently a response to the “guy in charge” document, and contained instructions for people to do certain things for Azzam and a related site, www.qoqaz.net, including to e-mail “MA” [Makhtaba al-Ansar, an Islamic bookstore in England that sold jihadi materials] regarding printing and money; and to “request from Mr. T that the products backlog must be finished by Monday evening 10 p.m.” The disk also included saved email messages that had been addressed to azzam@azzam.com, including one that had been saved in a directory called “stuff to give the boss.” The floppy disk contained files with content that appeared verbatim on the Azzam websites, such as materials justifying the Taliban’s destruction of the Bamiyan Buddhas in Afghanistan. Agent Bowling testified that based upon his forensic analysis of the floppy disk, the evidence strongly suggested that it had been created and saved by a British citizen named Syed Talha Ahsan—the “Mr. T” who handled the products backlog for Azzam—who then transmitted the floppy disk to Babar Ahmad. Forensic analysis of other documents obtained during the investigation linked a person named Syed Talha Ahsan to the Battlegroup Document. For example, a number of computer files recovered from Mr. Ahsan’s residence in London contained references to “S A Ahsan” in metadata. These documents included two versions of his curriculum vitae, as well as class notes for an Islamic course that Mr. Ahsan had sent to Mr. Ahmad, and about which they had corresponded by e-mail. These metadata references to “S A Ahsan” matched the metadata of the Battlegroup Document. Moreover, the Government introduced evidence indicating that Syed Talha Ahsan was referred to as “Mr. T.” Mr. Ahsan was ethnically Bangladeshi, and it was common for someone like him to go by his middle name. Mr. Ahsan’s computer, seized from his residence, contained a log-in prompt for either “Ahsan” or “mrt.” Inside the “mrt” account was another version of Mr. Ahsan’s personal curriculum vitae. “Mr. T” was the same name that was used in the file on the floppy disk to refer to the person in charge of clearing Azzam’s products backlog. The name also was in the address book for azzamproducts@yahoo.com. The Battlegroup Document had been saved in Microsoft Word 97 in “UK English.” The file had been opened and modified on only two occasions: when it was created on April 2, 2001, and again when it was last saved on April 12, 2001. On that latter date, the graphic depicting the battlegroup’s formation through the Strait of Hormuz was created and embedded, and the “author” field in the document’s properties was changed from “S A Ahsan” to “Jon Greene.” Wiping software called BCWipe had been used on the floppy disk. Agent Bowling was, therefore, unable to recover whatever items had been wiped. Agent Bowling searched all of the electronic data he had accumulated during his lengthy investigation, including all the computers seized by British authorities from Messrs. Ahsan and Ahmad, but found no traces of the information contained in the Battle-group Document anywhere other than on the floppy disk found on the wardrobe in Mr. Ahmad’s bedroom. Agent Bowling’s search of those computers also revealed no research relating to U.S. Naval Forces in the Pacific or elsewhere, the Constellation battlegroup, or the ARG. Nor did Agent Bowling find any evidence of communications between Azzam and anyone named “Jon Greene,” or find anyone named Jon Greene who could have had access to this battlegroup information from the Navy. Hassan Abu-Jihaad and His E-mail Communications With Azzam. British authorities sent their U.S. counterparts a copy, or “image,” of the floppy disk containing the Battlegroup Document. Earlier, Agent Bowling had obtained through a search warrant the contents of e-mails from Yahoo accounts associated with the Azzam websites, as well as registration information pertaining to those accounts. The reference to the Benfold in the Battle-group Document was significant to Agent Bowling because he had previously located Yahoo e-mails between Azzam and an American sailor stationed aboard the Ben-fold. That sailor was the Defendant, Hassan Abu-Jihaad. Agent Bowling located eleven e-mails between Azzam and Mr. Abu-Jihaad dating from August 21, 2000, through September 3, 2001. Some e-mails were to or from his military e-mail addresses (abujihah@ benfold.navy.mil and later AbujihaadH@ benfold.navy.mil), while others were from his private e-mail address (abujihaad01@ hotmail.com). Navy personnel records confirmed that Mr. Abu-jihaad was assigned to the Benfold during this period of time. Mr. Abu-Jihaad had enlisted in the Navy on January 26, 1998, and was assigned to the Benfold from July 1, 1998, until his honorable discharge on January 25, 2002. The Defendant had been born Paul Raphael Hall, but had legally changed his name in Arizona state court to “Hassan Abu-Jihaad” in 1997. Evan Kohlmann testified that mujahideen often choose as a “nom de guerre” an Arabic “kunya,” which begins with “Abu,” meaning “father of.” He explained that the term “jihad” (often transliterated from the Arabic as “jihaad”) literally means “holy struggle,” and in the context of mujahideen “exclusively refers to individuals on a battlefield, fighting in the cause of Allah.” From the contents of the e-mails between Mr. Abu-Jihaad and Azzam, it was apparent that he made known to Azzam both his identity and his status as an active member of the U.S. Navy stationed aboard a warship deployed to the Persian Gulf. The e-mails also showed that Mr. Abu-Jihaad was reading the Azzam websites and that he sent money orders to Azzam to purchase various videos that Azzam had created to support violent Islamic jihad. In addition, the e-mails suggested that Mr. Abu-Jihaad and Azzam had other communications that were not among the e-mails recovered by Agent Bowling. Finally, the e-mails showed that Mr. Abu-Jihaad himself supported the cause of violent Islamic jihad. The Court describes the e-mails in some detail since they were so important at the trial. The earliest e-mail correspondence between Mr. Abu-Jihaad and Azzam involved his ordering of various materials from the website. In these e-mails, Mr. Abu-Jihaad used his Hotmail address, and the IP addresses were traced back to Navy computers in San Diego. On August 21, 2000, Mr. Abu-Jihaad followed up on previous correspondence he had with Azzam (apparently via physical mail), which was not recovered: Salaamu’Alaikum I will appreciated if you guys can tell me if you guys received the 30.00dollars I sent for the indocumentation of the bosnianwar that going to be issued on SEP 4th. Brothers I will appreciate if you guys can e-mail me at abujihaad01@ hotmail.com to confirm my payment. Salaamu’Alaikum The reference to documentation was apparently to a page from the Azzam website, which had been last updated on August 13, 2000, advertising the upcoming release, on September 4, of a video titled the Martyrs of Bosnia, and inviting preorders. On August 26, 2000, Azzam responded that it had indeed received Mr. Abu-Jihaad’s video order, and would soon send him the video. Azzam noted that the video cost only $25, and inquired what to do with the remaining $5. At the end of the Azzam email was their electronic signature file, which contained contact information for Azzam, as well as an inspirational quotation extolling martyrdom: Azzam Publications >BCM Uhud, London WC1N 3XX, UNITED KINGDOM. http://www.qoqaz.net azzam2000@email.com “And with the likes of all these (martyrs), nations are established, convictions are brought to life and ideologies are made victorious.” [Shaheed Dr. Sheikh Abdullah Azzam, assassinated 1989]. The original version of the preceding email (with complete header information) was not recovered in the Yahoo account, having likely been deleted. But the text and abbreviated header information was embedded in Mr. Abu-Jihaad’s reply the following day, August 27, 2000: Assalaamu alaikum Dear Brothers you guys can keep the remanding $5.00 and added to the funds that you Brothers are spending in the way of Allaah via videos, tapes and the great web sites Qoqaz & Azzam Pub......etc. Assalaamu’Alaikum Over Mr. Abu-Jihaad’s objection, the jury was shown selected, and relatively brief, excerpts from the video, Martyrs of Bosnia, after receiving a limiting instruction from the Court. The Court had previously ruled on a motion in limine permitting certain limited excerpts from the videos that Mr. Abu-Jihaad had ordered from Azzam to be shown to the jury subject to a limiting instruction. See Ruling and Order [doc. # 221] at 9-11. The video was in Arabic with English subtitles and offered inspirational descriptions of martyrs who had died in violent jihad on behalf of Islam in Bosnia-Herzegovina. For example, the video discussed a “martyr” of Turkish origin who had been living in the United States and whose death had freed him from living with the “disbelievers” in America. The video included a number of combat scenes, in which the videographer was very close, just behind the Islamic fighters. At one point, Sheikh Abdullah Azzam—the website’s namesake—was filmed giving a speech, in which he criticizes western Muslims for failing to shed any of their own blood in behalf of the cause. Toward the end of the film was an interview of Ibn Khattab, leader of the foreign mujahideen in Bosnia-Herzegovina, who instructed viewers who wanted to contact the mujahideen to do so through Azzam. On March 12, 2001, Mr. Abu-Jihaad again wrote to Azzam from his Hotmail account, inquiring about another video order: Salaamu’Alaikum Br/Sis of Islam I am wondering did you guise recieve my two separate orders the first was Russian hell 2000. Then I ordered Chechnya from the Ashes at a later date. If you have any info please e-mail me back Insha’Allah. Salaam’s Hassan Abu-Jihaad The IP address for this message was traced back to Navy computers in San Diego. Less than six hours later, Azzam replied to the Hotmail account, asking that he e-mail them at “products@azzam.com” with his name, mailing address, and the dates he ordered the CDs. This exchange occurred three days before the date that the Battlegroup Document predicted that the Benfold and the rest of the battlegroup would leave San Diego. Mr. Abu-Jihaad sent Azzam another email on May 15, 2001, this time from his Navy e-mail account (abujihah@benfold. navy.mil) and from a Benfold IP address. He noted that he was in the “middle of this giant ucean” and inquired about his order for the video titled Chechnya from the Ashes. He also reported that his mother had received his order of the video Russian Hell 2000. He listed his home mailing address as “1681 s. 9th street San Bernardino Ca, 92411,” and relayed both his Hotmail address (with a typographical error) and his Navy e-mail address. Three days later, on May 18, Azzam sent an apologetic reply and promised to send Mr. Abu-Jihaad the video within a week. Again over Mr. Abu-Jihaad’s objection, the Court allowed the Government to play for the jury brief excerpts from both Russian Hell 2000 and Chechnya from the Ashes (which included a number of features, including Russian Hell 2000 Part I). The Court gave the same limiting instruction to the jury. Russian Hell 2000 included footage of mujahideen executing a captured Russian soldier in Chechnya, acting on the orders of Ibn Khattab. Russian Hell 2000 Part II included scenes with Chechen mujahideen commander Shamil Basayev and a suicide bomber saying prayers, followed by footage of a suicide truck bombing. On July 19, 2001, Azzam sent an e-mail to Mr. Abu-Jihaad’s Hotmail address, praising him for an e-mail that he had previously sent them. The text of Abu-Jihaad’s earlier e-mail, which was not recovered, appears in Azzam’s reply. Mr. Abu-Jihaad’s e-mail, which was referred to at trial as the “Cole e-mail,” reads as follows: Assalaamu’Alaikum Brothers/Sisters of Al-Islam i am a muslim station onboard a u.s. warship currently operating depolyed to the arabian gulf, it shall be noted before usama’s latest video was viewed by massive people all over the world, that psychological anxiety had already set in on america’s forces everywhere, all this is due to the martyrdom operation against the uss cole, since then every warship station either on the western or eastern shores of america who come to operate in the 5th fleet op area has to be given a force protect brief, well during the brief, i attended there was one thing that stuck out like thorns on a rose bush, i do not know who was the originator of this either top brass or an american poitician. well here is his/her statement: “america has Never faced an enemy with no borders, no government, no diplomats, nor a standing army that pledges allegiance to no state.” Allahu Akbar! Allahu Akbar! i give takbirs [praise to Allah] because i know deep down in my heart that the american enemies that this person has discribe is the Mujahideen Feesabilillah [holy warriors fighting in the cause of Allah], these brave men are the true champions and soldiers of Allah in this dunya [world], i understand fully that they are the men who have brong honor to this weak ummah [Islamic community] in the lands of jihad afghanistan, bosnia, Chechnya, etc. Alhamdulillah! [Praise to Allah!] With their only mission in life to make Allah’s name and laws supreme all over this world, i want to let it be known that i have been in the middle east for almost a total of 3 months, for these 3 months you can truly see the effects of this psychological warfare taking a toll on junior and high ranking officers, but after the latest video supporting Palestine, the top brass and american officials wererunning around like headless chickens very afraid, wondering if there is a possible threat, but this time the american population got wind of this and they came to know just how afraid the u.s. government is. tilomas 1. friedman wrote an article in the new york times.ealled: “what it takes to make the americans to turn tail, run.” this article was distributed on my ship and most of the sailors said it was so true about the american government, and they feel like they are working for a bunch of scary pussies ..........a Brother serving a Kuffar [infidel] nation. Astaghfir’Allah [Forgiveness from Allah] .... Hassan (Emphasis added). Although there was no header information for the original email, the Thomas Friedman column referred to in Mr. Abu-Jihaad’s e-mail had run in the New York Times on June 26, 2001. Therefore, Mr. Abu-Jihaad must have authored his e-mail some time between June 26 and July 19; that is, while the Benfold was in the Persian Gulf. The jury heard testimony from Evan Kohlmann that the incident praised by Mr. Abu-Jihaad as a “martyrdom operation” involved the suicide boat bombing of the Cole—a U.S. Navy destroyer like the Ben-fold—as it lay off the coast of Yemen in October 2000. Al-Qaida had taken public credit for the bombing, which killed seventeen U.S. sailors and caused millions of dollars of damage. Azzam replied to Mr. Abu-Jihaad as follows: AsSalaamAlaikum brother hassan, What can we? You said it all, and all I can add is that the Kufar know that they cannot defeat the Mujahideen (the warriors of Allah). I trust that you are doing your best to make sure that the other brothers & sisters in uniform are reminded that their sole purpose of existence in this duniya [world] is purely to worship our Lord and Master, Allah (SWT) [praise being given to Allah]. May Allah be with you & your brothers and sisters and keep you from all harm. Keep up with the Dawah [preaching Islam] and the psychlogical warefare. WasSalaam, [peace be upon you] From just another slave of Allah at Azzam Publications...... The jury was also shown pages from www. qoqaz.net, one of the Azzam websites, that solicited readers to “keep sending your emails of support to qoqaz@azzam.com.” This was the same e-mail address that had been included in the “to” and “reply-to” field of Azzam’s July 19 response. The “emails of support” page on Azzam’s website posted testimonials from readers around the world. After receiving Azzam’s reply to his Cole e-mail, Mr. Abu-Jihaad inquired again about his video orders. Writing from his Navy e-mail address (AbujihaadH@ benfold.navy.mil), he explained that he had received Russian Hell 2000 Part II, and had accidentally ordered a second copy (which, he noted, “will be a good gift for someone” in any event), but apparently had not received the first part of Russian Hell 2000. He then noted that he had previously given his military address (though it does not appear in any other emails recovered by the Government), and inquired about whether that address was workable: the address i gave you Bothers is: Uss Benfold DDG-65 Fpo Ap 96661-1283 do you guys mail to military addresses plus do you guys ship through UPS i ask this because the address above do not except packages shipped through (UPS).... besides that i want to give you Bro/Sis a heads up that i will be sending an order form for “RUSSIAN HELL 2000 PART 1”, how many days will it take? and should I send a different address than the one above. Your Brother of Al-Islam Hassan Abu-Jihaad Keep up the great work it is very well appreciated Alhamdulillah!!! The IP address for this e-mail was traced back to the Benfold. On July 26, Azzam wrote back to Mr. Abu-Jihaad, apologizing for the mishap, and stating that “[t]he address is OK as long as you think it is safe and you are confident that you will get our product.” It was signed “Products department (Azzam Publications).” One day later, Mr. Abu-Jihaad wrote back—again from his Navy e-mail address, from a Benfold IP address—confirming that Azzam should send his order to his Navy FPO address. Records produced by Yahoo disclosed that Mr. Abu-Jihaad’s military e-mail address was saved in one of Azzam’s electronic address books. Specifically, his email account “Abujihah@benfold.navy.mil” was saved. Yahoo turned over more than 23,000 e-mail messages to and from Azzam’s e-mail accounts, but only a small portion of the e-mail addresses—including Mr. Abu-Jihaad’s—had been saved to the online address books associated with these accounts. Only an account user of the Azzam Yahoo e-mail account could have saved Mr. Abu-Jihaad’s e-mail address, since it would not have been saved automatically. Furthermore, Agent Bowling testified that he had searched for e-mail extensions such as .mil or .gov that would indicate use of a U.S. military or government e-mail account, for IP addresses associated with the Navy, or the military or government more generally; and for particular words that appeared to be unique to the Battlegroup Document itself, such as the names of the ships or other key terms. With one exception, Mr. Abu-Jihaad was the only correspondent with a .mil address that showed up in the pool of Yahoo e-mails to and from Azzam. The only exception was a disparaging e-mail sent by a Navy Commander to Azzam in late September 2001, which was met with a terse and unfriendly response from Azzam. On September 2, 2001, Mr. Abu-Jihaad wrote the final e-mail of the eleven e-mails that Agent Bowling was able to recover. This e-mail was sent to Azzam from Mr. Abu-Jihaad’s Navy e-mail account with a Benfold IP address. He complimented Azzam on their coverage of the Taliban in Afghanistan, but stated that in his opinion, the Taliban were too soft when enforcing Islamic law against foreign aid workers found guilty of converting Muslims to their faith. He wrote as follows: Assalaamu’Alaikum I feel that Azzam Publication have done a great job on analyzing the notable quotes of the western media’s and the Taliban officials themselves. I have been keeping myself updated with this particular incident that is occurring there. What disturbs me more is the two decrees. 1st stating that who ever commits apostasy and the one who incites it, and are found guilty of such actions shall be punished by death, i personally agree with this decrement. 2nd decrement states that a foreign aid worker found guilty of converting Muslims to their faith shall be placed in jail for a month then expelled from Afghanistan. My opinion about this decrement is that it is to weak of a punishment (watered down). I personally feel that the foreign aid workers shall get the same punishment that the Afghan Nationals shall receive. I feel that this will be real justice according to Sharee’ah [Islamic law] in the sight of Allah and to the true people who adhere to this Deen [religion], i would like to know your intake on this matter? That is if you like to share your opinion. Your Brother of Al-Islam. Hassan Agent Bowling did not find the Battle-group Document or information from the Battlegroup Document in any of the emails between Mr. Abu-Jihaad and Azzam. Therefore, the Government’s case against Mr. Abu-Jihaad was built solely on circumstantial evidence regarding his motive and his access to information contained in the Battlegroup Document. The Battlegroup Mission and Transit Plan. Retired Rear Admiral David C. Hart, Jr., testified about the mission of the Constellation battlegroup in 2001. Admiral Hart served two years out of San Diego as a carrier battlegroup commander, with the Constellation as his flagship. He held that position from October 1999 to June 2001, and participated in two deployments to the Persian Gulf. A battlegroup typically includes an aircraft carrier, five or six combat ships, two submarines, and one. or- two replenishment vessels. The composition of a battlegroup is determined by the commander-in-chief of a particular fleet, here the Pacific Fleet. In 2001, the Constellation battlegroup was deployed to the Middle East to enforce Operations Southern and Northern Watch over Iraq, to enforce U.N.-mandated no-fly zones in the south of that country, and to enforce the U.N. oil embargo against Iraq through maritime shipping operations in the Persian Gulf. The battlegroup proceeded from San Diego to the Persian Gulf according to a Transit Plan. Drafting the Transit Plan was a labor-intensive project, taking months to plot out, and was subject to numerous changes or iterations. Admiral Hart’s staff was responsible for promulgating the Transit Plan for the Constellation battlegroup for the 2001 deployment. The person who actually drafted the Transit Plan was Quartermaster Chief Petty Officer Adam Conaway, who had spent nearly his entire career working in navigation and had spent almost five years drawing up ship schedules. Chief Conaway explained that drawing up a battlegroup’s schedule required “over a thousand hours of work.” He and his supervisor would sit down and determine whether to use the northern or southern route to the Middle East, choose the port calls, and determine the amount of time needed to sail from San Diego to their area of operations. The Transit Plan would often undergo several revisions for any number of reasons before being finalized. The first iteration of the Constellation Transit Plan was circulated on September 29, 2000, with successive revisions on the following dates: October 3, 2000; December 20, 2000; February 10, 2001 (which could not be located in Navy archives); and finally February 24, 2001. In each version of the Transit Plan, there was a general “milestones” section, or executive summary, at the front of the plan that listed the anticipated entry into the geographic region controlled by the U.S. Fifth Fleet. That date was April 30, 2001. This entry was known as the “CHOP” point, referring to “change of operational control.” The more detailed section of each Transit Plan, however, described the precise dates, times, and locations for each milestone, and more precisely identified entry into the CHOP point as occurring just before midnight on April 29, 2001. Notably, the Transit Plan did not list a date for when the battlegroup would transit the Strait of Hormuz, which the battle-group had to transit in order to enter the Persian Gulf, where it would be deployed. That is, the last date in the Transit Plan was the date of entry into the CHOP point. Furthermore, at the time of deployment from San Diego, there was no transit plan for the battlegroup’s return trip from the Persian Gulf back to San Diego. The final version of the Transit Plan dated February 24, 2001, contained a port call that had not appeared in the September, October, or December 2000 revisions: a brief stop for the Benfold to load ammunition at the naval magazine in Lualualei, Pearl Harbor, Hawaii on March 20, 2001. This stop had first been added in either the February 10 or February 24 iteration of the Transit Plan. Commander Jay D. Wylie, who served on the Benfold during the events in question, recalled that the navigation division had to do significant last-minute work before deploying from San Diego on March 15, including adding charts for the Hawaii port call. He explained that the stop in Hawaii was added because the Benfold had been forced to stay at sea for a missile shoot that had cut into the crew’s leave during the stand-down period. As compensation, the Navy agreed to reward the Benfold crew with a liberty port call in Hawaii. The Benfold was the only ship in the battlegroup to pull into Pearl Harbor to load ammunition. The navigation division of each ship in the battlegroup, including the Benfold, received a copy of the Transit Plan revisions, and was responsible for plotting its ship’s track over the course of the transit. Each revision of the Transit Plan would be electronically transmitted to each of the member ships of the battlegroup and certain Navy commands via classified message traffic. Testimony at trial indicated that access to the Transit Plan would have been limited to about 40 people out of the Ben-fold’s crew of 300 sailors. However, Commander Wylie testified that before the Benfold’s deployment from San Diego on March 15, 2001, access to the Transit Plan would have been limited to the ship’s officers, the operations specialists in the CIC, the quartermasters and signalmen, and the radio operators who processed the message. In the month-long “stand-down” period immediately before the March 15 deployment, the navigation division of the Benfold spent hours plotting out the ship’s intended movements on paper charts, with a duplicate track being plotted by the operation division. Commander Wylie testified that during this period, the signalmen worked alongside the quartermasters to finish last-minute preparations for the ship’s charts. Mr. Abu-Jihaad was a signalman on the Benfold in 2001, and had access to the Transit Plan. The Benfold’s navigation division was composed of four quartermasters, supplemented by four signalmen—an enlisted rating responsible for visual communications, which was then being abolished and folded into the quartermaster rating. Signalmen on the Benfold at that time were cross-training to learn quartermaster skills. Commander Wylie, who supervised all ship operations including the navigation division, recalled that Mr. Abu-Jihaad participated in that cross-training and had qualified as quartermaster of the watch. Moreover, Mr. Abu-Jihaad regularly worked on the bridge where the chart room was located (where the ship’s paper charts and classified transit plans were stored) and in the adjacent signal shack. The jury was shown photographs of these locations. Confidential Information. The Transit Plan was classified at the “confidential” level, and that classification marking appeared on the face of each revision of the plan. The jury heard evidence about the importance of maintaining the integrity of classified materials. By Executive Orders 12958 and 13292, information can be classified at different levels, ranging in increasing seriousness from “confidential,” to “secret,” to “top secret.” “Confidential” information is defined as “information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.” The jury also saw an operational instruction that guides the Navy’s classification decisions, indicating that “precise current or future operational deployment, locations of surface combatant ships,” and “planned foreign port calls” should be classified as “confidential” until after deployment or the visit has been approved by the host government. Chief Conaway testified that diplomatic clearances sometimes do not get approved until the day before a ship pulls into port. Another Navy document instructed that the “secret” level of classification should apply to transits of “choke points” and deployments in areas “when there are potentially hostile forces present and foreknowledge would permit adversaries to position forces secretly and mount attacks, particularly surprise attacks, on naval forces.” Commander Wylie was responsible for approving security clearances aboard the Benfold, and granted secret clearances for quartermasters and signalmen due to their work on the bridge. He explained that someone in the navigation division would have no authority to release classified information to someone who lacked a security clearance. The jury also heard evidence about steps that the Navy took to maintain the secrecy of classified information, including the advance location of its ships. Admiral Hart testified that the Navy did not ever publicize classified information, nor did it publicize in advance the dates of anticipated port calls or the dates of a transit of the Strait of Hormuz. Chief Conaway testified that he had a security clearance to handle classified information up to the “secret” level. Based on his training and experience in the navigation division, Chief Conaway testified that classified information cannot be transmitted to anyone without a clearance and a “need to know” the information. Signalmen were likewise required to hold a secret clearance due to the nature of their work. Navy records showed that Mr. Abu-Jihaad had been granted a secret-level clearance. Senior Chief Dennis R. Amador testified that the Benfold’s transit plans were stored in the chart room on the bridge, and were accessible only to personnel with appropriate security clearances. Because advance knowledge of ship movements is classified, Chief Amador would not tell his wife the precise time and date of where and when he was going to be deployed. Instead, he worked out a system to tell his wife in code the general region of the world where he was located, using coordinates on a map grid that he had drawn up. Petty Officer Josh Kelly testified that as a deck seaman and later a personnel specialist aboard the Benfold, he had no advance knowledge about where the ship was going. Before leaving San Diego in March, Petty Officer Kelly did not know which port calls the ship would make before reaching the Persian Gulf. He also did not know whether the ship would be taking the northern or the southern route to the Middle East. The jury heard testimony that an officer in the battlegroup would have broader access to classified information via the Navy’s SIPRnet (the secure intranet for classified information) than a signalman. The national security information in the Navy’s SIPRnet was potentially more damaging to national security than the information contained in the Transit Plan or the Battlegroup Document. Chief Conaway testified that Navy personnel with SIPRnet access could have accessed significantly more information—including classified information—about the battlegroup than what was contained in the Transit Plan. For example, SIPRnet afforded access to the Pacific Fleet’s overall deployment plan. Not all personnel with secret clearances were given SIPRnet access. Mr. Abu-Jihaad did not have access to the Navy’s SIPRnet. The jury also heard evidence about the relevance of the information contained in the Battlegroup Document. By way of background, Navy witnesses testified that force protection became an especially important concept after the suicide bombing of the Cole in October 2000 off the coast of Yemen. Admiral Hart explained that Navy ships can be particularly vulnerable while in port—as the Cole was—and they were “[ajbsolutely” more vulnerable during particular portions of their transits. An example of such a vulnerable area was the transit of the Strait of Hormuz, a choke point where geography narrows the Strait and limits vessels’ opportunities to maneuver. The Strait is a high-traffic area containing many large ships that are very slow to maneuver, together with all sorts of other vessels engaged in cross-Strait traffic. During a transit of the Strait of Hormuz, the battlegroup would enter a heightened state of readiness, manning additional weapon systems, posting additional watches, sending up patrol aircraft, and closing off more compartments below deck to protect the ship’s watertight integrity if hit. Admiral Hart testified that at that heightened state, and with all the traffic, it sometimes can be difficult to determine who may or may not pose a threat to the vessels of the battle-group. Admiral Hart and the other Navy personnel who testified acknowledged that the Battlegroup Document contained a number of inaccuracies, which will be discussed in greater detail below. Indeed, Admiral Hart agreed that it was “riddled with errors.” Nevertheless, he said that he regarded the information in the Battlegroup Document as a threat to the battlegroup’s safety. On direct, he testified as follows: Q. If you had known, in 2001, prior to deployment or while you were underway that this document was in the hands of individuals in London who were running a website extolling the virtues of jihad and martyrdom, what if anything would you have done? A. I would have immediately alerted my superior, in this case the commander of the Fifth Fleet, and would have sought an opportunity to change the time and nature of our transit through the strait of Hormuz. Q. Why is that? A. Once again, as you earlier indicated by your question in sequence, it’s a very vulnerable period of time for us so one of the things you try to achieve, as best you can, is some element of surprise, as you transit through the strait. Q. What specifically about the Battle-group Document would have compromised that? A. The actual date and time expected to transit the strait. The Battlegroup Document predicted that April 29 was the most likely date for transiting the Strait of Hormuz, though the battlegroup had never planned to transit the Strait on April 29; that was the date for crossing the CHOP point, which was between 600 and 1000 nautical miles from the Strait. Despite this inaccuracy, Admiral Hart said he would still have been concerned because “we have just given away one of the key tactical elements that you like to have on your side, which is surprise.” To Admiral Hart, the single most troubling aspect of the Battlegroup Document was “the time frame at which we would be operating in the Fifth Fleet area of responsibility and intent to try to transmit vulnerabilities, whether necessarily accurate or not, of the ships under my command.” Admiral Hart testified that in asymmetrical warfare, it would be critical for attackers to have advance information about where a ship could be located. Commander Scott Graham testified that had he been aware that the Battlegroup Document was in the possession of someone in London who was affiliated with a website promoting violent jihad, he would have been greatly concerned. He regarded the Battlegroup Document as containing classified information, and its release as a breach of security. As an officer with force-protection responsibilities for the Benfold, Commander Graham would have considered the ship’s vulnerabilities when approaching the Strait, and whether to go to a heightened condition level as a result of the disclosure of the Battlegroup Document. The defense called one witness—Molly Raskin, a researcher—through whom it introduced numerous pages from publicly available websites in or about 2001. She testified that simple internet queries regarding the Constellation battlegroup yielded thousands of responses. Through Ms. Raskin, the defense sought to show that the battlegroup’s schedule would have been available for anyone performing research on the internet. For example, one of the ships in the battlegroup—the U.S.S. Thach—posted a schedule on its website. The schedule itself was limited to describing each day as either “Deployed,” “Port Visit,” or “Inport San Diego”; and the names of the ports were never added to the website, even after the port calls were completed in March and April 2001. The website had been retrieved in April 2001, after the Thach had departed from San Diego on March 15, 2001. The defense also presented webpages posted by the U.S.S. Boxer about its port visits; those, too, were posted only after those visits had been completed. The defense also found news articles discussing the battlegroup’s Australian port calls. Those articles were all written in April 2001—after the battle-group had left San Diego, and well after the Battlegroup Document appears to have been written. Ms. Raskin also testified about documents that she was able to locate on the internet predating March 15. One that discussed the Constellation’s deployment was an entry in the MIT alumni website dating to February 11, 2001. In a class note, a recent graduate told his classmates that he would be deploying for six months as a carrier pilot aboard the Constellation from San Diego on March 15, 2001, and that he expected port calls in Sydney, Perth, Bahrain, and Dubai. The note made no mention of Hawaii, nor did it give dates for any of the anticipated port calls. Also, the Canadian Navy posted press releases in early 2001 about the participation of the HMS Winnipeg in the battlegroup. One press release recited the March 15 departure date and stated that the battle-group would arrive in the Arabian Gulf in early May. Also, a February 2001 article about the Tarawa Amphibious Readiness Group described Phuket, Thailand as one of the favorite stops of sailors and Marines, a comment that was reminiscent of a similar comment in the Battlegroup Document. The defense also showed that it was publicly known that the U.S. Navy regularly deployed carrier groups to the Persian Gulf to enforce sanctions against Iraq, and that these groups would deploy for six months at a time. The Navy issued a press release listing the component ships and making a general statement about their mission only when the Constellation battlegroup deployed. Also, although there were two typical routes between the west coast of the United States and the Persian Gulf—either via Southeast Asia or Australia—ships could take either route westbound. Ships typically, but not always, took one route outbound, and the other route on their return. Likewise, although it was not uncommon for ships to sometimes stop in Hawaii, Chief Conaway testified that “it’s definitely not necessarily the norm by any means.” At standard cruising speed, it took six days to sail from San Diego to Hawaii, yet the Battlegroup Document accurately predicted (as set forth in the last revisions of the Transit Plan) that the Benfold was scheduled to arrive there on March 20 for an ammunition load. Admiral Hart acknowledged that it was not a secret that the Constellation would be following the Australian route to the Persian Gulf, though the route and dates contained in the Transit Plan were all classified as “confidential.” Because there are two possible general routes west, a member of the general public would not “be able to predict prior to deployment the dates and times of ... port calls and the Strait of Hormuz transit....” Commander Wylie testified that he had been deployed to the Persian Gulf many times, but his route there had been different every time. The jury was able to view a number of publicly available command histories for various ships, showing that prior deployments had varied between the northern and southern routes, with different port calls. Mr. Abu-Jihaad’s Post-Discharge Conversations. The jury also heard evidence presented by the Government that in late September 2006, nearly five years after the Battlegroup Document had been prepared, the Federal Bureau of Investigation (“FBI”) in Rockford, Illinois, asked an informant—William Chrisman—to befriend an individual named Derrick Shareef. Mr. Shareef soon came to live with Mr. Chrisman and his family for about three months beginning in October 2006. During that time, Mr. Shareef introduced Mr. Chrisman to Hassan Abu-Jihaad, who was then living in Phoenix and with whom Mr. Shareef had once lived. Messrs. Chrisman and Abu-Jihaad spoke over the phone and via webcam and instant messaging on a computer. The Government wiretapped Mr. Abu-Jihaad’s telephone, and recorded all phone conversations between Messrs. Chrisman and Abu-Jihaad, as well as conversations that Mr. Abu-Jihaad had with others. At trial, the jury heard excerpts from a number of recorded calls from late 2006. Some of the calls showed that Mr. Abu-Jihaad was familiar with the Azzam family of websites. The calls also showed that Mr. Abu-Jihaad was security-conscious and sometimes spoke in code. For example, he referred to jihad as “J” or “7” (a reference to the seventh heaven, where battlefield martyrs go). In one call, Mr. Abu-Jihaad cautioned Mr. Shareef that he did not “like talking on the phone or, or internet ... just for security purposes ....” He continued, “I don’t ask any questions—’cuz ... asking questions means compromising.... You know I ain’t trying to compromise anybody ... Okay?” He emphasized the importance of staying “tight” and not “introducing] many people to ... what you are.” In another call, he cautioned Mr. Shareef not to “trust the phones. The phones are tapped.... About as tapped as the internet----” He continued, “I’m also about ... securing myself. I’m not gonna ... hand myself to a Kafir [infidel].” Mr. Abu-Jihaad also spoke with a number of individuals about “cold meals” as opposed to “fresh” or “hot meals.” Mr. Chrisman, a participant in some, but not all, of these calls, testified that he understood the term “meal” to refer to “intelligence about military bases.” When Mr. Abu-Jihaad spoke about “cold meals,” he meant outdated intelligence, whereas a “fresh meal” or a “hot meal” referred to current intelligence. For example, in one call Mr. Abu-Jihaad told Mr. Shareef that he had talked about “L” (meaning “logistics”), but that at that time, “L” for Mr. Abu-Jihaad was “like a cold meal. ‘Cuz it ain’t fresh .... you should figure out, what a fresh meal is. And if it ain’t fresh, it’s outdated ---- it got a bad date on it....” In one three-way conversation in which Mr. Chrisman participated, Mr. Abu-Jihaad apologized for his lack of fresh military intelligence, but pointed Mr. Shareef to an associate who had just recently left the military: And I said, and I’ll say it again, with whatever I can give, that’s beneficial, I’ll give it to you. But whatever’s cold turkey, if it’s cold turkey, I can’t give it to you.... ’Cuz that means that, if it’s cold turkey—I’m talking about “L” you figure it out—’cuz then that means that, that’s just saying that, I haven’t been on that job, so I don’t—you know what I’m saying, I haven’t been there ... to see ... what the fresh meal is. If I can’t, if I can’t give you the fresh meal—I ain’t been there in “X” amount of years.... See what I’m saying? Now if ... the Hispanic, if the Mexican, he just, was there a minute ago—he can give you a fresh meal.... So you put that together.... If it’s—if it’s in those terms, he can give you a fresh meal ’cuz, you know what I’m saying, he just finished his job, there, less than a month ago, or ... two.... But I, I mean—in those terms and “L’s,”—I would be giving you a cold meal. (Emphasis added). When Mr. Abu-Jihaad said the he hadn’t “been on that job,” Mr. Chrisman testified that he understood him to mean that he had been out of the Navy for a while. Later in that same conversation, Mr. Abu-Jihaad again referred Mr. Shareef to an associate who could provide a “hot meal ... where he can eat a whole lot.” Mr. Chrisman testified that he under