Terror Suspect’s Statement Can Be Shown to Jury

A federal judge on Monday reversed himself and ruled that jurors can be shown an alleged confession by a defendant charged with participating in the bombing of two U.S. embassies in Africa in 1998 that killed 224 people.

The decision by Judge Leonard B. Sand in U.S. District Court in Manhattan also applied to statements by two other defendants--and represented a significant victory for prosecutors preparing for opening arguments next week in the trial of four alleged followers of Islamic extremist Osama bin Laden.

Sand, speaking from the bench, said he originally had decided to suppress statements made by Mohamed Rashed Daoud al-’Owhali, who government lawyers contend rode in the truck containing the bomb used in the attack on the U.S. embassy in Nairobi.

The judge said he withdrew his sealed opinion after prosecutors presented more evidence at a hearing.

After he was captured in a seedy hotel in a village near Nairobi five days after the bombing, al-’Owhali was questioned for two weeks in Kenya by the FBI, the lead U.S. prosecutor in the case and local authorities.

“Al-’Owhali was in fact advised of his right to counsel but was not told that counsel would be appointed for him because--after consulting with Kenyan authorities--American representatives understood that this could not be done in Kenya,” Sand said. The judge also said that al-’Owhali had waived the right to counsel while expressing a desire be tried in America “so that he could confront directly his avowed enemy.”

“Talking without counsel to the Americans was . . . a course of action he voluntarily chose to pursue,” Sand added.

Twelve Americans were killed in the embassy attacks in Nairobi and in the Tanzanian capital of Dar es Salaam. More than 4,500 people were injured, many seriously.

According to the indictment, al-’Owhali got out of the truck near the embassy in Nairobi and threw a stun grenade at a security guard while the driver detonated the bomb.

Lawyers for al-’Owhali, a 23-year-old Saudi Arabian citizen, argued during court proceedings that his confession was coerced and that he wasn’t properly advised of his rights.

They also charged that an FBI agent threatened to leave al-’Owhali in the hands of local authorities, who had menaced him. “I am your only hope,” the agent allegedly said.

In a preview of the formal opinion Sand plans to issue, he said deficiencies in the form that al-’Owhali received advising him of his rights were corrected by oral advice from Assistant U.S. Atty. Patrick J. Fitzgerald, who had traveled to Kenya to participate in the questioning.

The judge said that nothing concerning the prisoner’s confinement, mode of transportation or any other circumstances warranted suppression of his alleged confession.

Sand said that many of the issues presented with respect to al-’Owhali also applied to another defendant--Mohamed Sadeek Odeh, a 35-year-old citizen of Jordan who prosecutors charge established a fishing business in Kenya that was used to help finance the bombings.

Odeh was arrested by immigration authorities in Karachi, Pakistan, on Aug. 7, 1998, and later was taken to Kenya, where questioning continued. In court filings, Odeh’s lawyers charged that, away from the presence of American interrogators, Kenyan authorities repeatedly threatened to torture and kill him--and at one point said they would take him to a garden in Nairobi and “tell the people he was responsible for the bombing and allow them to cut him to pieces.”

Sand said--in reasons he will detail in his written opinion--that Odeh voluntarily and knowingly waived his right to counsel and “this was not the consequence of duress inflicted by the Americans but in response to Odeh’s wishes.”

Regarding a third defendant--Khalfan Khamis Mohamed, a 27-year-old Tanzanian who authorities charge helped buy a car used in the Dar es Salaam bombing plot and who rented a safe house--Sand denied his motion to suppress statements on the grounds it was untimely and lacked merit.

Mohamed and al-’Owhali could get the death penalty. Odeh and Wadih El-Hage, 40, could get life in prison without parole.