RESPONSE BY: UNITED STATES ATTORNEY'S OFFICE, SOUTHERN DISTRICT OF NEW YORK TO SECTION C: THE WORLD TRADE CENTER BOMBING, (February 27 and March 10, 1997)
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
February 27, 1997
BY OVERNIGHT MAIL
Michael R. Bromwich
Inspector General
Office of The Inspector General
U.S. Department of Justice
Washington D.C. 20530
Re: Preliminary Draft Report -- Whitehurst Allegations
Dear Mr. Bromwich:
I am enclosing this Office's comments on the preliminary draft report of OIG's investigation of the Whitehurst allegations.
We very much appreciate your and your staff's consideration and close personal attention to our comments and are available to discuss them with you at your convenience.
Very truly yours,
MARY JO WHITE
United States Attorney
Enc. (1)
MEMORANDUM
TO: Mary Jo White,
United States Attorney
FROM: J. Gilmore Childers
Senior Trial Counsel
DATE: February 26, 1997
RE: Comments On The Draft OIG Report Concerning The Whitehurst Allegations
I have reviewed the Draft Report (the "Draft") and have spoken to the trial team concerning the World Trade Center ("WTC") section of the Draft. Set forth below are our comments, which fall into three categories. First, we correct specific factual inaccuracies in the Draft. Second, we set forth contextual information concerning Williams' testimony and its role in the trial, which is necessary to a complete and balanced account of the points raised in the Draft. Last, we note a problem in the summary of the OIG interview of Williams and also suggest two cautionary prefaces for inclusion in the final report.
As set forth below, we have a number of significant comments concerning the treatment the Draft gives to the context of Williams' testimony and the conclusions which may be drawn from the testimony. The authors of the Draft obviously (and understandably) did not review the transcript of the entire WTC trial, and our comments are directed at assisting the authors in their preparation of an accurate final report.
Needless to say, none of our observations should be
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construed to minimize the importance of completely accurate testimony in the courtroom or to suggest that precise locution is not a critical component of such testimony.
A. Factual Corrections
Draft, Part II, p. 16: The date of the World Trade Center bombing is incorrectly listed as April, 1993 instead of the correct date of February 26, 1993.
Draft, Part II, p. 16: The World Trade Center trial began in September 1993, not in early 1994.
Draft, Part II, p. 18: No defendant in the Rahman trial was charged with executing the World Trade Center bombing. The bombing was charged as an overt act of the conspiracy count in the Rahman case, and none of the Rahman defendants are named in that overt act.
Draft, 111(c), p. 1: The correct dates for the World Trade Center trial are from September 1993 to March 1994.
Draft, 111(c), p.1: Whitehurst's pretrial complaints were resolved before trial. He also voiced complaints during the trial, and these additional complaints were resolved during trial before any relevant testimony was elicited.
Draft, 111(c), p.2: Contrary to the Draft's understanding, the "blue manuals" were not indirectly or circumstantially linked to the defendants. (Draft, at p. 2). Rather, defendant Ajaj was in physical possession of the blue manuals when he attempted to enter the United States on September 1, 1992. He was carrying them in his luggage, and he admitted to possessing the manuals at
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that time. Moreover, his latent fingerprints were found throughout the manuals, as were those of Ramzi Yousef. Most significantly, the fingerprints of both Ajaj and Yousef were found on specific pages in the books that included formulas for urea nitrate, ammonium nitrate dynamite, nitroglycerine and other explosives. All of this evidence was admitted at trial. The manuals were admitted against all defendants as, inter alia, proof of the charged conspiracy.
B. Contextual Information
1. The Nature Of Williams' Testimony At Trial
Although Williams' status as a summary witness is critical to a fair assessment of his testimony (see below), the Draft does not mention that Williams testified as a summary witness. The Government obtained permission from the Court for Williams to read the entire trial transcript before his testimony and to base his testimony in part on this record. No defense counsel objected to this procedure.
Nor does the Draft mention that the defense in the WTC trial had access to expert opinion of at least equal authority to that of Williams.
As set forth below, these two omissions should be corrected because similar contextual circumstances are provided in other portions of the Draft on other cases, and, in the interests of consistency and balance, we do not see why the drafters omitted the same factors in the WTC portion of the Draft.
For example, the Draft's discussion of the Vanpac case notes
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three factors that may have ameliorated the effect on any inaccuracies in the testimony by the explosives examiner in that case. Specifically, the Draft discusses: (1) that the explosives examiner was testifying as a summary witness (Draft, at pp. 13, 20); (2) that the defendant had his own explosives expert (Draft, at p. 7); and (3) that defense counsel, if so inclined, could have pursued any of the questionable topic areas in cross-examination (Draft, at pp. 12, 18). All of these factors were also present in the WTC trial.
The Expertise Available To The Defense: The defense team included highly qualified expert witnesses. The Legal Aid Society, representing Mohammed Salameh, retained as their explosives expert John B.F. Lloyd of Great Britain, an internationally respected expert in the field of explosives. (Mr. Lloyd is well known to both Dr. Whitehurst and Steven Burmeister.) Mr. Lloyd is presently the defense expert on the Oklahoma City bombing case. Thus, the defense was well represented with respect to expertise in explosives. As a result, the defense could and did powerfully cross-examine Williams. (See B-4 below). Moreover, the defense could have called its witness to refute Williams' testimony. That the defense did not call Lloyd is obviously noteworthy in assessing Williams' testimony.
The Effect Of Williams' Status As A Summary Witness: The Draft (see Draft, Section C, II, A, at pp. 2-12) concludes that Williams gave misleading testimony by claiming that he made the
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urea nitrate, when in fact other FBI personnel were responsible for the physical manufacture of the compound. Williams' status as a summary witness and principal laboratory examiner cast some relevant light on his use of the pronoun "I" when testifying concerning the manufacture of urea nitrate by FBI lab personnel.
Although the Draft accurately quotes the testimony where Williams testified that "he" made the urea nitrate, it does not quote or mention the numerous times Williams indicated that he was only one of several people involved.1 The first time Williams testified concerning the manufacture of urea nitrate (Tr. 7898-907), he used the first person singular pronoun "I," "me", or "my" five times with respect to the manufacturing. In the same pages of the transcript, however, he used the plural "we" a total of nine times. In the second part of his testimony where he discussed the manufacture of urea nitrate (Tr. 8091-93), he used first person singulars four times and the plural five times. In the final section in which Williams discussed the manufacturing of urea nitrate (Tr. 8106-14), he used first person singular pronouns a total of three times and plural pronouns a total of thirty times. Thus, in each section of his testimony where he discussed the manufacturing of urea nitrate, Williams used plural pronouns more often than he used singular ones. Taken together, he used singular pronouns eleven times and used plural pronouns forty-four times.
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1 There are three portions of Williams' testimony in which he discusses the making of urea nitrate. (See Tr. 7898-7907, 8091-93, 8106-14).
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To ensure accuracy in the final report, the authors of the report should consider the Draft's present lack of balance with respect to this aspect of Williams' testimony. Of course, Williams should not have used "I" where "we" was more accurate on any occasion, but his predominant use of "we" and other plural pronouns should be considered and at least noted.
Furthermore, Williams' testimony also made clear the group nature of the operation by including the names of numerous FBI personnel present at Eglin Air Force Base when the lab personnel made the 1,200 pounds of urea nitrate. He mentioned by name several of the key participants in the project. (Tr. 8109-10). Williams also plainly testified that the "collective experience" of all involved was used to make the compound. (Tr. 8109, 8115). 2
Additionally, as Burmeister's statement to the OIG acknowledges (Draft, at pp. 11-12), Williams was generally in charge of the operation at Eglin, including its logistical aspects, whether or not he directly supervised the actual physical mixing of the chemicals in the manufacture of the urea nitrate. Moreover, as principal laboratory examiner, Williams
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2 We also do not understand the Draft to be suggesting that urea nitrate was not, in fact, the main explosive in the WTC bomb. Based on all of the evidence, the FBI experts interviewed by the WTC trial team all were of the belief as investigators that the main charge was urea nitrate and all were aware that at least one of the defendants had confirmed that belief prior to trial in a proffer. That belief led to the testing at Eglin of urea nitrate rather than other explosives. Following the trial, Ramzi Yousef was apprehended and told FBI agents that the WTC bomb was made of urea nitrate.
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bore responsibility for all of the FBI laboratory work on the WTC case.
Again, we do not mean in any way to condone any inaccurate portions of Williams' testimony or his choice of words. The point is that the Draft should be comprehensive, not one-sided, in its presentation of the issue.
2. The Blue Manuals
The Draft states that Williams' testimony that formulas in the blue manuals were the source for the manufacture of urea nitrate by the FBI was untrue. The Draft further states that this was "misleading regarding whether the Arabic formulas were tested by the FBI and were shown to be workable formulas that could produce urea nitrate." (Draft, at p. 10).
We believe that in order to convey a more accurate picture, there are a few preliminary matters which should be included in the Draft with respect to the blue manuals.
First, the urea nitrate formula in GX 2783 (the blue manuals) was workable. When contacted by this Office, pursuant to authorization given by the Inspector General, FBI chemist Steven Burmeister stated that the formula contained in that exhibit was not only "workable" but that the formula was "close to the methodology that was used at Eglin." Burmeister continued that the Eglin methodology differed mainly in that additional calculations were done to insure that proper safety precautions were taken. Burmeister should be re-interviewed on this point.
Second, with respect to what actually happened at Eglin,
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Williams claims that while at Eglin he received a fax containing one of the blue book formulas, and further claims that he showed this fax to Whitehurst and the Eglin chemist and was told that it was the same formula being used. The chemists who were on the scene do not recall this. (Draft III-C, at p. 8). This Office has been informed by the Office of General Counsel of the FBI that two special agent bomb technicians who were present for the Eglin production of urea nitrate confirm Williams' recollection that he compared with the chemists the faxed formula to the one used at Eglin. It is clear, as the Draft notes (Draft, at p. 8), that the fax was transmitted to, and received at, Eglin. It is not clear, however, why Williams would have gone to the trouble of obtaining the formula by fax and then done nothing with it. The new information from the two bomb technicians may support the logical inference that Williams showed the blue manual formula to the Eglin chemist and Whitehurst, as he has stated.
Third, and perhaps most important, the blue manuals were not offered at trial to establish that they contained the formula used to make the bomb that exploded at the WTC. To the contrary, the manuals were not available to the defendants and their coconspirators when the bomb was made, and this was made clear at trial. They were offered for their relevance in establishing the existence of the conspiracy and Ajaj's membership in it. As already mentioned, the blue manuals were seized at the airport when Ajaj entered the United States and since then had been in the Government's possession. The manuals were thus important
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evidence, no matter what explosive was used (and the manuals contained dozens of explosive formulas), because they were probative of the existence of a bombing plan shared by Ajaj and Yousef (whose fingerprints were on the manuals). But, they were not crucial to establishing that urea nitrate was actually used in the WTC bomb. The evidence providing that inference came from the purchase of massive quantities of urea and nitric acid by the defendants and the seizure of urea nitrate at the shed and the "bomb factory" apartment used by the defendants. (See B-3 below). Accordingly, the Draft should mention that to the extent that Williams' testimony could be read to suggest that the blue manuals provided the formula used by the defendants to make the bomb, such a suggestion would have been substantially if not entirely undermined by the evidence in the case -- to wit, the unavailability of the manuals to the defendants.3 For the same reason, Williams had no "reason" to testify inaccurately that the blue manual formula was used at Eglin.
It should also be noted that Williams testified that the formulas in the blue manuals were for the assembly of a pipe-bomb, which he affirmed were "relatively small devices." (Tr. 8137). He followed this testimony by stating that the blast in the WTC could not have resulted from a pipe-bomb. (Tr. 8138).
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3 In fact, Williams did not testify categorically that the blue manuals were used to make the urea nitrate explosive at Eglin. He testified that the "first batch" of urea nitrate was made following certain instructions, and that the "first bit of instructions" came out of the blue manuals. . . ." (Tr. 8114-15).
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Lastly, Williams made clear that the blue manuals were not necessary to the making of the bomb. (Tr. 8138-39).
3. The Role Of The Witness' Testimony On Urea Nitrate
The Draft states that Willjams' testimony filled a void in the government's proof by establishing that a urea nitrate bomb -- the chemical constituents of which were found in the shed and the formula for which was in the blue manuals -- was the source of the blast at the World Trade Center. (Draft, Ill-C at pp. 13-14). In light of the trial evidence, however, this assertion is unfounded. There simply was no such "void" to fill.
The proof at trial, without Williams' testimony, overwhelmingly established that the defendants built a huge urea nitrate bomb and exploded it underneath the World Trade Center. Salameh and Yousef rented a storage shed to store chemicals and explosive mixtures. (Tr. 2928; GX 2828). Yousef and Ayyad ordered various chemicals, including urea and nitric acid, in quantities sufficient to construct a massive urea nitrate bomb. (Tr. 2975, 2981-85, 2991-95, 3002, 3004-05, 3170-73, 3181-82; GX 77, GX 634 A-B, GX 2938-2, GX 2938-3). Salameh accepted delivery of these chemicals at the storage shed. (Tr. 3035-37, 3043-45). Yousef and Salameh rented and resided at an apartment at 40 Pamrapo that became a "bomb factory." (Tr. 3325-29, 3340-41, 3346, 3352, 3389; GX 2475). Abouhalima helped mix chemicals to make the bomb at 40 Pamrapo, and was seen with other conspirators frequenting the apartment and moving various items, including large buckets, in and out of the apartment. (Tr. 3391, 3395-96,
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3399). Ayyad ordered tanks of hydrogen gas to enhance the bomb's destructive impact, and had them delivered to the storage shed where Salameh accepted their delivery. (Tr. 3676-80, 3683, 3709-13, 3811-20, 3892-93, 3901-02; GX 2463 A-C, GX 2464 A-C).
Salameh rented a Ryder van to hold the bomb. (Tr. 3581, 3586, 3590; GX 1). Numerous parts of the Ryder van rented by Salameh and the hydrogen tanks delivered to the storage shed were recovered in the crater at the World Trade Center. (See, e.g., Tr. 807-955, 1027-43; GX 3028, GX 448).
A search of the "bomb factory" apartment yielded urea nitrate crystals (GX 101, GX 2583, GX 2466; Tr. 6186, 6220-22, 6925, 6969-70, 6973, 6987-88), nitroglycerine (GX 2540, GX 2584, GX 81, GX 2533, GX 2487, GX 2520, GX 2521, GX 2522, GX 2523, GX 2537, GX 2582, GX 2585; Tr. 6194, 6980-88, 6185, 6858, 6969, 6197-201, 6982), various amounts of several other explosive-related chemicals and clear evidence of the manufacturing of explosive compounds, such as urea nitrate and nitroglycerine. (GX
2482, GX 2496, GX 2570, GX 2571; Tr. 6184, 6989, 6991-92, 6195, 7905). A search of the storage shed yielded urea nitrate (GX 55, GX 65, GX 75; Tr. 6297-300, 6922-27, 6305-06, 6956-57), nitroglycerine (GX 2884-1-7, GX 839-A; Tr. 6343-45, 6937), ammonium nitrate dynamite (GX 2681; Tr. 6966-67), and additional explosives-related chemicals and laboratory equipment. (See, e.g., GX 49, GX 62-64, GX 70; Tr. 6297-300, 6922-27, 6305-06, 6956-57).
Ayyad drafted a letter claiming responsibility for the
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bombing of the World Trade Center, which stated that the conspirators had committed the bombing in response to United States foreign policy in the Middle East. (GX 196, GX 78 A-F; Tr. 5178-79, 5311-12, 5331-46).
In addition, an exhaustive analysis of telephone records for the relevant period linked the defendants to each other, to the rental of the apartment, to the purchase of the chemicals and the hydrogen tanks, to the rental of the van, and to the claim of responsibility. (GX 735, GX 802-T, GX 804-T, GX 805-T, GX 806-T, GX 807-T, GX 808-T, GX 809-T, GX 811-T, GX 812-T, GX 813-T, GX 818-T, GX 819-T, GX 820-T; Tr. 2040, 5162, 5168, 6631-761).
In view of this overwhelming evidence, the absence of chemical analysis confirming urea nitrate as the main charge in the bomb cannot convincingly be characterized as significant, let alone critical. Showing that one of the defendants had a formula for urea nitrate at one time did not "fill the void" of proving that the bomb actually used was made of urea nitrate. Likewise, given the overwhelming circumstantial evidence that the defendants built a urea nitrate bomb, Williams' testimony that urea nitrate likely served as the main charge was not crucial to the case. The drafters may wish to note this in order to provide proper context to the subject testimony.
4. The Cross Examination Of Williams
As we mention above, the cross-examination of Williams was searching and effective. Accordingly, it is not correct that the court or jury was "misled" by Williams' testimony that urea
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nitrate was the main charge in the bomb, as the Draft states. (See, e.g, Draft, at 45).4
Williams was cross-examined extensively and quite effectively by four lawyers.5 Defense counsel established that Williams was not a chemist and did not have a chemistry background. (Tr. 8070). They further established that there was "no reasonable scientific method of proving" that urea nitrate or
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4 There is, of course, a difference between "misleading" testimony and testimony that actually "misleads" a court or jury. As to the latter, in light of the pertinent cross-examination by defense counsel and the court, it would simply not be accurate to conclude that the court or jury was actually misled.
Indeed, the record itself refutes any suggestion that the court or jury was misled. After Williams correctly testified on cross examination, as he had on direct examination, that a number of explosives could have caused the blast, and after he responded on cross-examination that it was his opinion (based on everything he knew) that the main explosive charge was urea nitrate, the following colloquy immediately took place:
THE COURT: Could it be ANFO?
MR. CAMPRIELLO: I didn't hear you, Judge.
THE COURT: Could it be ANFO?
THE WITNESS: Yes, it could be.
THE COURT: In other words, there could have been an ANFO bomb sitting there, and if that exploded, it would have caused the same kind of damage?
THE WITNESS: That's correct.
(Tr. 8137). Thus, Williams, as he had throughout his testimony, made clear in response to the court's own questions that explosives other than urea nitrate could have caused the blast damage to the World Trade Center.
5 Williams was cross-examined by attorneys for each of the four defendants in this order: Abdellah (Abouhalima), Precht (Salameh), Campriello (Ajaj), and Ahmed (Ayyad).
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ammonium nitrate were components in the World Trade Center bomb. (Tr. 8070-71).
Furthermore, counsel for Abouhalima asked Williams as his second question in cross examination: "And your primary purpose here today is to come in as the case agent and explain perhaps to the jury and give an opinion on particular areas where you, the government in this case may need some assistance. Am I correct? Williams answered, "[y]es." (Tr. 8070). Later, the same lawyer asked Williams whether "part of [Williams'] role "was" to tie this case up in a nice package." Williams answered, "[y]es it is." (Tr. 8086).
Counsel further elicited from Williams that in several respects, Williams' testimony amounted to no more than speculation. (Tr. 8073 (location of van parts after blast as basis for determining blast center), 8074 (location of a particular vehicle before blast), 8080 (placement of component parts of bomb within van), 8105 (weight of explosive)). Indeed, in assessing Williams' alleged bias, it is worth noting that Williams, if anything, understated the significance of his testimony in response to these questions.
Next, although the Draft does credit Williams with correcting one defense counsel (Abdellah) by clarifying counsel's misunderstanding that Williams had testified that urea nitrate was the bomb explosive when in fact, as Williams testified, other compounds "could have been" used at the World Trade Center (Tr. 8071; see Draft, at p. 48), the Draft does not mention that
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Williams did the same thing some fifty pages later while being cross-examined by Campriello, when Williams stated: "I concluded that [various components] could have been in the bomb in the Trade Center." (Tr. 8119).
It must also be noted that it was the defense cross-examination of Williams which introduced substantial confusion into the testimony. Although he knew that Williams was a summary witness who had many sources for his opinion that urea nitrate was used in the bomb1 including the trial testimony and physical evidence, Campriello did not limit his questioning of Williams to Williams' conclusions based on physical data and scientific analysis. He asked what Williams believed based on everything he knew.
Specifically, Campriello engaged in the following line of questioning. First, he asked, "[c]an you point to any single page or pages in any one book that has the formula for what you think may have been the bomb . . . ." (Tr. 8119). Two pages later Campriello asked a question that began, "[a] person is putting together what you think may have been the bomb . . . ." (Tr. 8121). Approximately fourteen pages later the following exchange took place:
"Q. Correct me if I'm wrong. If I understood you correctly, you indicated that while you believe you have been able to figure out, No. 1, that it was a bomb that caused the damage in the World Trade Center, and No. 2, what you think were the components of that bomb, that if there was a bomb, there could have been other components as well? Did I understand you correctly or am I
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misstating what you said?
A. Other components of explosives?
Q. Yes.
In other words, you said that this was basically a bomb, if I understand, made of urea nitrate and this substance and that substance.
MR. ABDELLAH: Objection. That's not what he said.
THE COURT: I think he's -- I don't think you're limiting yourself. Is that what you're saying? You think?
MR. CAMPRIELLO: That's all I'm saying.
THE COURT: Go ahead.
A. Yes, I do. I believe urea nitrate was the bulk of the constituent in that bomb with other explosive materials; yes.
Q. And have you concluded that that is the only possible bomb that could have caused this kind of damage based on everything you know or are there other possibilities as well?
A. Within the World Trade Center?
Q. Yes.
A. There was only one bomb in the World Trade Center.
Q. No, no. That, I understand to be the your testimony.
What I'm saying is was whatever caused it just this one possibility or were there other possible bombs as well, not two bombs or three bombs, but you described a bomb?
A. Yes, okay.
Q. Could it have been another kind of bomb or no?
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A. Not likely. As I said, the bulk of the explosive material could have been urea nitrate with other things such as ammonium nitrate dynamite and certainly there was some type of initiator, but the bulk of the explosive was, in my opinion, urea nitrate.
Q. I guess it's the 'could have been' part that gives me pause.
THE COURT: Could it be ANFO?
MR. CAMPRIELLO: I didn't hear you, Judge.
THE COURT: Could it be ANFO?
THE WITNESS: Yes, it could be.
THE COURT: In other words, there could have been an ANFO bomb sitting there, and if that exploded, it would have caused the same kind of damage?
THE WITNESS: That's correct.
MR. ABDELLAH: Excuse me, your Honor. What's ANFO?
THE COURT: ANFO is a mixture, I think, of ammonium nitrate and diesel oil.
THE WITNESS: That's correct, sir.
THE COURT: Okay.
(Tr. 8135-37 (emphasis added)). Thus, defense counsel did not limit his questioning of Williams to Williams' conclusions based on physical data and scientific analysis. He did not ask, for example: "Based on the laboratory analysis of the evidence seized at the site of the blast, did you conclude that one of a number of bomb materials might have been used?" Rather, he asked a much more open-ended question (i.e., "based on everything you knew), and in direct response to this question, Williams provided
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his opinion "based on everything he knew," as he had been asked.6 To the extent that Williams should be criticized for failing to qualify or explain his answer fully, as he had earlier on direct and cross-examination, he clearly corrected himself and any misleading impression in answering the Judge's clarifying questions that immediately followed.
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6 Through this point in Campriello's cross-examination, "damage" as a source of Williams' opinion had not been mentioned. The Draft states, however that "the context of the questioning was limited to an opinion based only on Williams' assessment of the damage at the crime scene." (Draft, at 46). This statement is inaccurate. In the passage transcribed above there is no mention of damage in the question that elicited Williams' first response that he "believed" urea nitrate constituted the bulk of the explosive. It was not until the follow-up question that Campriello introduced the notion of damage as a basis for Williams' opinion but then he linked "damage" and "everything you know," asking " . . . have you concluded that that is the only possible bomb that could have caused this kind of damage based on everything you know or are there other possibilities as well?" In the response to this question, several lines later, Williams stated that the "bulk of the explosive material could have been urea nitrate with other things . . . but the bulk of the explosive was, in my opinion, urea nitrate." As Campriello knew, Williams knew much more about the bomb than solely the damage it had caused. He knew about the searches and all of the other physical evidence. Moreover, unlike the authors of the Draft, Campriello did not interpret Williams' testimony to have been so definitive a declaration about urea nitrate, as is evidenced by defense counsel's next statement: "I guess it's the 'could have been' part that gives me pause."
The Draft's final paragraph on the subject of Williams' testimony concerning the main charge in the bomb reads: "In sum, when Mr. Campriello asked Williams, "Could it have been another kind of bomb or no?" (Tr. 8136) counsel clearly meant: Could it have been another kind of bomb or no, based on your analysis of the damage at the crime scene?" (Draft, at 49). As set forth above, the question was far from clear and if taken as actually asked did not limit Williams to damage evidence.
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C. Additional Comments
1. The OIG Interview
At page 44, when analyzing Williams' direct examination concerning his identification of the main charge, the Draft states that, "in his OIG interview Williams stated that, based on his assessment of the damage at the scene, he really could not make any type of identification of the explosive used at the Trade Center." The draft report then quotes the following portion of Williams' OIG interview found at pages 38193-94 of the OIG record:
"AGENT WILLIAMS: ....If I just had to work with that crime scene, there's no way I could have called any kind of explosive.
OIG: Because it could have been ANFO?
AGENT WILLIAMS: It could have been emulsions.
OIG: Could have been emulsions.
AGENT WILLIAMS: It could have been anything
We had two million gallons of sewage water pumped in on top of this.
All of the fire extinguisher systems and the 30 inch sewer lines for the entire complex ruptured directly over the scene of the blast."
(Draft, at p. 44 (emphasis added in Draft)). The Draft then states:
Williams' acknowledgement at the OIG interview that, based on the crime scene, the main explosive 'could have been anything' differs significantly from the opinions he rendered at the Salameh trial. At the trial Williams testified that his observations at the scene enabled him to help the court
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determine the explosive that may have been used in the blast. Now he has admitted that the 'sewage water' and 'fire extinguisher systems' so contaminated the scene that 'anything' may have been used as the main explosive in the bomb. In light of Williams' OIG testimony, we are deeply troubled that his trial testimony mav have misled the court.
In sum, we conclude that Williams' direct testimony was inaccurate and misleading, and suggested too strongly that a fertilizer-based explosive like ammonium nitrate or urea nitrate was used in the Trade Center bomb.
Five pages later when analyzing Williams' cross-examination on the identification of the main charge, the Draft states:
"In sum, when Mr. Campriello asked Williams, 'Could it have been another kind of bomb or no?' (T8136), counsel clearly meant: 'Could it have been another kind of bomb or no, based on your analysis of the damage at the crime scene?' Williams should have answered him as he answered us: 'It could have been anything.' R038194. We conclude that by answering instead, '[T]he bulk of the explosive was, in my opinion, urea nitrate' (T8136), Williams failed in his responsibility to provide the court with an objective, unbiased expert opinion."
(Draft, at p. 49 (emphasis added)).
The literal reading of Williams' testimony relied upon in the Draft is unfair when examined in context. The testimony which immediately follows Williams's remark that the explosive at the World Trade Center "could have been anything" strongly suggests that he was referring to the inability to make a finding of bomb composition based on chemical analysis, not damage assessment. Nevertheless, the Draft uses his remark to support a conclusion that he testified misleadingly in the WTC trial as to
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his ability to make a finding based on damage assessment.
Specifically, shortly after Williams stated in his interview that the explosive used at the World Trade Center "could have been anything" (R038193-94), the discussion continued and the following exchange took place:
"AGENT WILLIAMS: Not necessarily true. The damage that I saw suggests to me, just the damage alone, a velocity of detonation and a weight charge. Yes, that came from the scene.
OIG: But that could have been done by various explosives.
AGENT WILLIAMS: It could have. And if I just had the scene, I could not have made the opinion of urea nitrate.
I could have included it among the other explosives. of course.
(R038196-97 (emphasis added)).
Thus, Williams testified that his observations of damage would be able to assist him in narrowing the possible explosives used at the World Trade Center. His testimony at trial was in accord with this approach. (See above discussion of cross by Campriello). The omission of this testimony is troubling in light of the Draft's acknowledgment of the validity of this type of expert determination:
We have no doubt that an experienced explosive examiner may properly draw certain inferences from observations at a crime scene. For example, an experienced expert will be able to discern the difference between the damage left by a high versus a low explosive, and can differentiate the damage caused by a heaving high explosive (like most commercial products) versus a brisant (like most miliary explosives) high
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explosive. Similarly, an observation of 'pitting and cratering' will tell an experienced expert that the explosive used was a high explosive with a VOD typically in excess of about 10,000 feet per second. All of this involves the use of experience to recognize certain distinctive characteristics of explosive damage.
(Draft, at pp. 38-39). When Williams remarked "it could have been anything," he was referring to the inability to perform chemical analysis at the bomb site due to flood conditions. Williams' mention of the fire extinguishers and sewage at the scene have nothing to do with blast damage analysis. And, given the discussion which followed the "could have been anything" remark, Williams could not have meant by this remark that the main explosive could have been "anything" based on the blast damage. As he knew, there was clear high explosive damage present at the scene including pitting and cratering. The damage to the heavy materials, steel, concrete, etc., was of the heaving type and demonstrated no brisance. Based on observations of these conditions, Williams was professionally able to narrow the range of possible explosives used in the bomb (to those with VOD's roughly between 10,000 and 20,000 feet per second). Yet, the Draft concludes that Williams should have answered Campriello's question concerning his assessment of the bomb based on damage in the same manner in which he told the OIG he could make no assessment based on chemistry due to water conditions. While Williams is to be faulted perhaps for flagging attention to verbal precision at the OIG interview, his testimony therein
22
should not be misinterpreted.7
2. Cautionary Language
The Draft should indicate that it concerns the investigation of Whitehurst's allegations and is not meant to be a legal analysis or fact-finding concerning the effect of any of the allegations on the verdicts in the trials discussed therein. It is one question to ask whether an expert's testimony, reviewed in hindsight, measures up to acceptable standards of precision. It is a distinct question, however, whether the testimony offered in a particular case -- considered in context -- misled a factfinder. To the extent that the final report attempts to address the second question, it is imperative that the report be balanced and fully accurate, after the entire record has been thoroughly reviewed and understood.
Lastly, to prevent any misperception on the part of the uninitiated reader, the final report should state, wherever relevant (as in the case of the WTC case), that Whitehurst's allegations do not concern any tampering with or destruction of evidence.
__________________________
7 As the FBI noted in its comments on the Draft, Williams
formed a preliminary opinion that the main charge in the Oklahoma City case was caused by approximately 4,000 pounds of ANFO before any arrests or searches were executed and before the prosecution theory was formulated. In the WTC investigation as well, Williams, within 24 hours of the World Trade Center bombing, and a full five days before any arrests, searches, or seizures, preliminarily opined that based on the damage at the scene the bomb probably consisted of 1,000 to 1,500 pounds of an explosive in the category of a fertilizer bomb.
23
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
March 10, 1997
BY TELECOPIER: (202) 616-4581
Barry Rand Elden
Special Investigative Counsel
Office of the Inspector General
Department of Justice
Washington, D.C. 20530
Re: OIG Preliminary Report On Whitehurst Al1egations
Dear Mr. Elden:
I am attaching Gil Childers' memorandum to me in response to your letter of March 4, 1997.
Sincerely,
MARY JO WHITE
United States Attorney
Att. (1)
M E M O R A N D U M
TO: MARY JO WHITE
FROM: GIL CHILDERS
DATE: MARCH 10, 1997
RE: RESPONSE TO OIG INQUIRY ON MARCH 4, 1997
The OIG Whitehurst investigators have requested transcript support for our representation that David Williams testified at the World Trade Center trial as a summary witness with the consent of the defense.
On December 7, 1994, as reflected on page 3986 of the trial transcript (copy attached), the Government received the District Court's permission for an explosives expert to review the trial transcript. At the same time, the Government informed the Court and counsel that the expert would "base his testimony on a lot of other testimony." (Tr. 3986). Defense counsel, all of whom were present, did not object.
In Williams' direct testimony1 he referred to his review of the trial transcript. (See, e.g., Tr. 7915-18 (testimony regarding a summary chart of the chemicals ordered by the conspirators from City Chemical); Tr. 8009-63 (testimony regarding pieces of the Ryder van and AGL hydrogen tanks found in the crater of the World Trade Center after the explosion)).1
Similarly, in Williams' cross examination, defense counsel referred to Williams' review of the trial transcript. (See Tr. 8151, 8154, 8155). One defense counsel, to advance his trial strategy of attaching the FBI lab's handling of evidence, examined Williams specifically concerning the testimony of an FBI agent who had made certain seizures during one of the searches. (See Tr. 8151-54). Defense counsel also questioned Williams concerning fingerprint reports. (See Tr. 8154-56).
Thus, all of the trial participants understood that Williams was testifying as a summary witness and that he was basing his testimony in part on the trial record that preceded his testimony.
GC
Att. (1)
__________________________
1 The OIG investigators have the transcript of Williams' trial testimony, so I have not included it as an attachment.
3986
1 (In open court; jury not present)
2 THE COURT: You said you had housekeeping
3 matters?
4 Mr. DE PIPPO: Yes, your Honor, two.
5 The first one, the witness identified in Exhibit
6 592, we apparently have a 592 in evidence. With the Court's
7 permission, I would like to renumber that 692.
8 THE COURT: Sure.
9 MR. DE PIPPO: And then, secondly, recognizing
10 that your honor has excluded witnesses under 615. At some
11 point, we are going to get to an expert witness, an
12 explosive expert witness who will base his testimony on a
13 lot of other testimony, we will request permission to show
14 him the transcripts.
15 THE COURT: Sure.
16 MR. PRECHT: One other matter very briefly.
17 MR. CAMPRIELLO: I can't hear, Mr. Precht.
18 THE COURT: One other matter, very briefly.
19 Mr. PRECHT: Defense counsel was provided certain
20 3500 material this morning with respect to what we viewed to
21 be a very important witness. The material is somewhat
22 lengthy and none of this material had been given to us
23 before in any form. So, accordingly, I am speaking for all
24 of defense counsel, I respectfully request that after the
25 direct examination of this individual, that counsel be given
SOUTHERN DISTRICT REPORTERS
212-791-1020
AMY A. RIVERA
#####