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[10] WADIH EL HAGE Wadih el Hage presented the biggest challenge for prosecutors because, no one contested, he’d left Kenya a year before the bombings and, therefore, did not stand accused of any murders. He was charged only for his participation in the conspiracy to kill Americans, as well as with twenty-two counts of perjury for giving false statements to a federal grand jury. “He was never alleged to have participated in any violent activity or planned any violent activity. The government, itself, described him as a facilitator. He got caught up after the fact,” said Sam Schmidt, his attorney. “Probably in any other legal system, the role he played would not have held him up for criminal charges. But the conspiracy laws in the United States, under certain circumstances, are very expansive. If someone you know is planning an attack and you help them in the sense that you work with them so that they make money, and they use that money to buy arms, you’re held responsible for their conduct. Even if you don’t buy the arms for them.”1 Judge Leonard Sand’s explanation of the law of conspiracy sounded eminently more balanced: “The standard law of conspiracy calls for the jury to find a meeting of the minds to commit an illegal act and that the defendant joined in the conspiracy.”2 If the jury found that el Hage was active in al Qaeda, it could find that he was a party to its conspiracy. “Wadih really didn’t believe he was doing anything against the United States. He didn’t flee to Sudan or Afghanistan. He returned to the United States,” said Josh Dratel, another of his lawyers. “It takes a pretty sophisticated legal understanding to appreciate how his activities could be construed as a crime against America.”3 El Hage was called before the grand jury twice—on September 24, 1997, and September 16, 1998. Both appearances followed grueling travel. In the first instance, he’d been en route from Nairobi, with a lengthy delay in Jeddah, for nearly two days with his wife and their six children, all of whom Wadih el Hage 101 were under the age of ten. He was met by federal authorities at JFK Airport in New York and immediately served with a subpoena. While his wife and children were brought to a hotel, el Hage was taken to the U.S. Attorney’s office in Manhattan and questioned for several hours. He was brought to the hotel later that evening. As Dratel recounts, “he did not get a lawyer. He’s subpoenaed for the grand jury the next day. He found it all very disorienting and it affected his ability to answer questions.”4 On the second occasion, he had driven from his sister’s home in California, stopping at his mother-in-law’s in Tucson, when he was served with a subpoena upon arriving at his home in Arlington. He was flown to New York that afternoon. He appeared before the grand jury the very next morning. FBI Agent Jack Cloonan expressed disbelief at el Hage’s intractability: “He just could not fathom cooperating with the United States government. It’s hard to comprehend, with as much time as he’d spent in the U.S., educated here, and raising all those kids.”5 On August 20, less than three weeks after the embassies were bombed, Special Agent Robert Miranda of the Bureau’s Dallas Field Office and Dan Coleman, the agent who had interviewed el Hage in Nairobi, went to his residence to interview his wife, April Ray. They arrived at 2:15 pm. Around forty-five minutes later, Wadih came home. April Ray left to pick up their kids at school; el Hage remained with the agents. After about an hour, he said he had to return to work, but agreed to continue the conversation later that evening. He voluntarily went to the FBI’s office at 8:00 pm and spoke to the agents for approximately two hours. He acknowledged having worked for bin Laden in Khartoum from 1992 to 1994, but said they hadn’t spoken since Osama left Sudan. Asked whether he was able to contact his former boss, he said the only way he could think to do so would be through the unlikely and convoluted process of flying to Pakistan and seeking the intercession of the Taliban Embassy to let bin Laden know that he...

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