IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT TIMOTHY JAMES McVEIGH, Petitioner-Defendant, v. Case No. 96-_____ (Case No. 96-CR-68-M below) HONORABLE RICHARD P. MATSCH, Respondent. PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT MARCH 25, 1997 Stephen Jones, OBA #4805 Robert Nigh, Jr., OBA #011686 Richard Burr, FBA #407402 Jeralyn E. Merritt, Esquire Cheryl A. Ramsey, OBA #7403 Christopher L. Tritico, TBA #20232050 Of Counsel Robert L. Wyatt, IV, OBA #13154 Michael D. Roberts, OBA #13764 James L. Hankins, OBA #15506 Randall T. Coyne, OBA #549013 Amber McLaughlin, TBA #1374098 Robert J. Warren, OBA #16123 Mandy Welch, TBA #21125380 Holly Hillerman, OBA #017055 TABLE OF CONTENTS PAGE NO. OVERVIEW 1 I. INTRODUCTION 4 STATEMENT OF MATERIAL FACTS 9 II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF THE ALFRED P. MURRAH BUILDING 9 A. Immediate Effects of the Explosion 9 B. The Response of the Federal Government 13 1. The Government's Immediate Response to the Bombing 14 a. Mobilization 14 b. Evidence From Public Sources of government Use of Intelligence Networks With Foreign Nations in the Investigation of the Alfred P. Murrah Building Bombing 16 C. CIA and NSA Investigation Protocol 17 2. Evidence of the International Scope of the Investigation and the Involvement of Organs of State Intelligence in Several U.S. Domestic Bombing Cases Including the Alfred P. Murrah Building 21 3. The Investigative Focus Upon Foreign Terrorists 24 III. THE ARREST OF TIMOTHY McVEIGH 28 IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN" 29 i V. THE "OTHERS UNKNOWN" TO THE GRAND JURY 32 A. Elliott's Body Shop 32 B. Oklahoma City Eyewitnesses 34 C. Jeff Davis 35 D. Frederick Schlender 37 E. Legal Significance of the Existence of "Others Unknown" 38 VI. PRIOR WARNING, ATF INFORMANTS, AND POSSIBLE "OTHERS UNKNOWN" 38 A. Elohim City 38 B. Dennis Mahon, Andreas Strassmeir and Carol Howe 44 1. Dennis Mahon 44 2. Andreas Strassmeir 47 3. Carol Howe and the Bureau of Alcohol, Tobacco and Firearms 53 VII. BEYOND ELOHIM CITY 79 A. Suspect I, Posse Comitatus, and Iraq 79 1. Posse Comitatus 79 B. Saudi Report Concerning Iraq 81 C. FBI Special Agent Kevin Foust 82 2. State Sponsorship Precedent 85 D. Israelis Present at the Bomb Site 89 E. A Subject of the Investigation in the Philippines 91 ii VIII. PROCEDURAL HISTORY OF DISCOVERY REQUESTS 101 A. Introduction 10l IX. GOVERNMENT EVASION OF ITS DISCOVERY RESPONSIBILITIES 111 A. The Government's Restrictive Definition of Brady 114 B. Counsel for the Government are Powerless to Effect Disclosure of Discoverable Information from National Intelligence Agencies 128 X. AUTHORITY 137 A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable Upon Petition for Writ of Mandamus 137 B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the Requested Discovery Material 138 C. The District Court Abused its Discretion by Denying Mr. McVeigh's Repeated Requests for Brady Material 142 D. Standard for Guidance in Search 144 E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and Punishment, the District Court's Abuse of Discretion Jeopardizes Both Stages of Mr. McVeigh's Capital Trial 146 X. SPECIFIC RELIEF REQUESTED 152 CERTIFICATE OF HAND DELIVERY 154 ii TABLE OF AUTHORITIES United States Supreme Court Cases PAGE NO. Arizona v. Youngblood, 488 U.S.51,58 (1988) 151 Bankers Life & Cas. Co. V. Holland, 346 U.S.379 (1953) 139 Brady v. Maryland, 373 U.S. 83(1963) passim Eddings v. Oklahoma, 455 U.S. 104, 110-12(1982) 147 Giglio v. United States, 405 U.S. 150(1972) passim Kyles v. Whitley, 514 U.S.419, 115 S. Ct. 1555, 1565-68, 131 L Ed. 2d490 (1995). 115, 142, 143, 14S, 151 Roche v. Evaporated Milk Assn., 319 U.S.21(1943) 137 Snepp v. United States, 444 U.S.507, 512 (1980) 16 United States v. Agurs, 427 U.S.97, 110(1976) 145 United State v. Bagley, 473 U.S.667, 675(1985) 151 United States v. Richard M. Nixon, President of the United States, 418 U.S. 683(1974) 136 Will v. United States, 389 U.S. 90, 95(1967) 137 iv Other Federal Cases Chaney v. Brown, 730 F.2d1334, 1345 (10th Cir. 1984), cert. denied, 496 U.S. 1090(1984) 146, 147, 148 Hopkinson v. Shillinger, 781 F. Supp. 737 (D. Wyo. 1991) 150, 151, 152 In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F. 2d755(7th Cir. 1994) 137 Nichols v. Alley, 71 F.3d347(10th Cir. 1995) 12 Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d801, 824(10th Cir.1995) 144, 145, 146 Texaco, Inc. v. Chandler, 354 F. 2d655(10th Cir. 1965), cert. denied, 383 U.S. 936(1966) 137 United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984) 139 United States ex rel Smith v. Fairman, 769 F.2d386, 391-93 (7th Cir. 1985) 145 United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990 ) 138 United States v. George, 786 F. Sup. 11, 13(D.D.C> 1991) 140 United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988) 145 United States v. Mandel, 914 F. 2d 1215, 1219 (9th Cir. 1990) 139 United States v. McAnderson, 914 F. 2d934(7th Cu. 1990) 85 v United States v. McVeigh, 923 F.Supp.1310,1313(D.Colo.1996) 114,130 United States v. Perdomo, 929 F.2d967-978(3d Cir.1991) 144 United States v. Penix, 516 F.Supp.248, 255 (W.D. Okla. 1981) 30,104 United States v. Poindexter, 727 F.Supp.1470(D.D.C.1989), rev.d on other "rounds, 951 F.2d366(D.C. Cir. 1991) 141,142 United States v. Rahman, 870 F.Supp.47,51(S.D.N.Y.1994) 142,143,151 United States v. Rewald, 889 F.2d836 (9th Cir.1989) 15 United States v. Rezaq, 156 F.R.D.514,519(D.D.C.1994) 140 United States v. Ritter, 272 F.2d30,32(10th Cir.1959), cert. denied, 362 U.S.950(1960) 137 United States v. Trevino, 556 F.2d1265, 1272 (5th Cir.1977) 144 United States v. Yunis, 867 F.2d617,623(D.C.1989) 140 United States v. Yunis, 924 F.2d1086,1095(D.C.Cir.1991) 140 United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995) 144 Other Authorities 28 U.S.C.'1651(a) 137 Fed.R.Crin.P.16(a)(1)(C) 129, 138,139 vi [CONTINUED IN PART TWO] PART TWO OF EIGHTEEN: IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT TIMOTHY JAMES McVEIGH, Petitioner-Defendant, v. HONORABLE RICHARD P. MATSCH, Respondent. Case No. 96 (Case No. 96-CR-68-M below) PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT COMES NOW the Petitioner, Timothy James McVeigh, by and through the undersigned counsel, and moves this Court to: 1. Assume jurisdiction in this matter and issue a Writ of Mandamus to the respondent trial judge directing the respondent to enter the appropriate orders specifically requested herein; and 2. Issue a stay of the proceedings below pending resolution of this Petition in this Court or, in the alternative, allow jury selection to proceed on schedule, March 31, 1997, but stay the taking of evidence in the court below pending this Court's resolution of the Petition. OVERVIEW The McVeigh defense, based upon the material provided to it, suggests the following hypothesis: A foreign power, probably Iraq, but not excluding the possibility of another foreign state, planned a terrorist attack(s) in the United States and that one of those targets was the Alfred P. Murrah Building in Oklahoma City. The Murrah Building was chosen either because of lack of security (i.e. it was a "soft target"), or because of available resources such as Iraqi POW's who had been admitted into the United States were located in Oklahoma City, or possibly because the location of the building was important to American neo-Nazis such as those individuals who supported Richard Snell who was executed in Arkansas on April 19, 1995. The plan was arranged for a Middle Eastern bombing engineer to engineer the bomb in such a way that it could be carefully transported and successfully detonated. There is no reported incident of neo-Nazis or extreme right-wing militants in this country exploding any bomb of any significant size let alone one to bring down a nine (9) story federal building and kill 168 persons. In fact, not even members of the left-wing militant groups such as the Weatherman were ever able to accomplish anything of this magnitude. This terrorist attack was "contracted out" to persons whose organization and ideology was friendly to policies of the foreign power and included dislike and hatred of the United States government itself, and possibly included was a desire for revenge against the United States, with possible anti-black and anti-semitic overtones. Because Iraq had tried a similar approach in 1990, but had been thwarted by Syrian intelligence information given to the United States, this time the information was passed through an Iraqi intelligence base in the Philippines. Operating out of the Philippines as a base, the state-sponspored [sic] terrorists, with the Murrah Building already chosen as the target, enlisted the support and assistance of members of the Radical American Right. The defense believes the evidence suggests that American neo-Nazis were chosen to carry out the bombing of the Murrah Building because of a shared ideological bent of hatred against the American government. It is possible that those who carried out the bombing were unaware of the true sponsor. The evidence collected by the defense suggests that the desired ideology was found by the state-sponsored terrorists in Elohim City, Oklahoma, a small compound near Muldrow, Oklahoma, consisting of between 25 and 30 families and described as a terrorist organization which preaches white supremacy, polygamy and overthrow of the government. Elohim City was a haven for former members of The Covenant, The Sword and the Arm of the Lord ("CSA"), another extremist organization that had been raided by the federal government on April 19, 1995, exactly ten years to the day prior to the Oklahoma City bombing. One member of CSA turned on the organization and testified in court at the trial of Richard Snell and others who were charged in Arkansas with sedition in that they conspired to destroy the Alfred P. Murrah Building in Oklahoma City with a rocket launcher in the early 1980's. Snell was convicted on unrelated capital charges and sentenced to death in Arkansas. He was executed the day of the Oklahoma City bombing--April 19, 1995--and is buried at Elohim City. It is from this group of people that the defense believes that the evidence suggests foreign, state-sponsored terrorists groomed the most radical persons associated with Elohim City and extracted monumental revenge against the federal government by destroying the Murrah Building on the day of Richard Snell's execution and the anniversary date of federal raid. But the defense hypothesis also entails evidence, very strong evidence, that the federal government, through the Bureau of Alcohol, Tobacco & Firearms, had an informant in Elohim City, an informant who warned federal law enforcement prior to April 19, 1995, that former residents, including the former chief of security, of Elohim City were planning to "target for destruction" federal buildings in Oklahoma, including the Alfred P. Murrah Building. The defense believes this scenario is true, that is is [sic] eerily similar to the World Trade Center bombing where the FBI had an informant infiltrate the terrorist group but failed to stop that criminal act, and that, absent judicial intervention, information concerning these matters in the possession of the federal government will be forever buried. The defense for Mr. McVeigh is not engaged in a fishing expedition. As the information set forth in this Petition demonstrates, the McVeigh defense, using resources provided to it by the district court, has conducted a wide-ranging and increasingly narrow focused investigation. But without subpoena power, without the right to take depositions, and without access to national intelligence information, the McVeigh defense can go no further. [CONTINUED IN PART THREE] PART THREE OF EIGHTEEN I. INTRODUCTION. The Government of the United States is hiding from the defense and the trial court evidence and information that the government had a prior warning that the Alfred P. Murrah Federal Building in Oklahoma City (and possibly federal property in Tulsa) was very likely a target of a terrorist attack on or about April 19, 1995. This information came to the government from a variety of sources, including Carol Howe, a paid ATF informant for about 6 months, who infiltrated Elohim City and the Christian Identity Movement and who provided specific information prior to April 19, 1995, that an illegal German national, the grandson of one of the founders of the German Nazi Party, proposed to bomb federal buildings and installations and engage in mass murder. Information also came to the government through foreign intelligence services in the Middle East and from the government's own assets that an attack was being planned on the "heartland" of America. The government responded to part of these warnings by conducting a superficial security examination of the federal building complex in Oklahoma City on the early morning hours of April 19, 1995.[1] --------------------------------------- FOOTNOTES: [1] Several witnesses interviewed by ABC News 20/20, including an attorney and a private process server, among others, claim to have seen law enforcement using sniffer dogs, as well as a "bomb disposal" or "bomb squad" unit truck near the Murrah Building in the early morning hours of April 19, 1995, shortly before the bombing. See attached Exhibit "D" (transcript of ABC News 20/20 broadcast, January 17, 1997). Oklahoma County Sheriff J.D. Sharp denied the presence of the Oklahoma County bomb squad truck, telling local media on the record that the county bomb truck was ten miles away from downtown and nowhere near the country courthouse. See attached Exhibit "E." However, the County Sheriff's office later stated that the bomb squad unit was in fact in downtown Oklahoma City the morning of the bombing for a routine training exercise. See attached Exhibit "H." This information was confirmed to the defense through discovery. See exhibits "J" and "K" The presence of the bomb squad truck was commented on by several other persons and mentioned in a business newsletter of one downtown Oklahoma City business. See attached Exhibit "F';; see also Exhibit "G" (news account of witness in Oklahoma City who recalled that, "The day was fine, everything was normal when I arrived at 7:45 to begin my day at 8:00 a.m., but as I walked through my building's parking lot, I remember seeing a bomb squad.") --------------------------------------- But rather than admit that it acted, no matter how superficially or limited on this information, the government has chosen to deny, and maybe even withholding from the chief prosecutor, evidence of this prior warning from an informant it deemed reliable because she regularly passed polygraph tests. The defense has repeatedly sought by letter, motion, argument in chambers and in open court, detailed information which it knows the government has. The district court has repeatedly advised the government, both in published opinions and in judicial statements, of the government's duty. The government has claimed it understood its duty. We submit the government has affirmatively misled the district court repeatedly on this subject, through prosecutors who may or may not know the truth. The government, in short, is stonewalling. The Defendant has made a sufficient showing below for a judicial order compelling the FBI, the Department of Justice, ATF, Department of State, the National Security Agency, and the Central Intelligence Agency to produce information to support the Defendant's claims which are a material part of his defense. Timothy McVeigh's defense is that (1) he did not rent the Ryder truck (2) he did not assemble a bomb at Geary Lake State Park (3) he did not drive the Ryder truck to Oklahoma City, and (4) he did not detonate the bomb. There is a lack of credible government evidence to convince any fair-minded jury beyond a reasonable doubt that he did in fact do these things, and there is credible testimony and evidence known to the government and the defense which impeaches each of the government's claims down to and including who rented the truck the number of conspirators, where the bomb was assembled, and who left the truck after parking it in front of the Murrah Building. The information which will help to establish Mr. McVeigh's innocence in front of the jury, particularly in light of the recent bizarre disclosures by two thieves[2] masquerading as journalists, is uniquely in the hands of the government. --------------------------------------- FOOTNOTES: [2] In late January, one stole computer information by personally downloading from a defense lap top computer material he was not authorized to receive. The other secured the information by personal, unethical and immoral means plus theft, and then proceeded to embellish the stolen document with language found no place in the document which he mischaracterized (because it bore a computer generated logo "Attorney Work Product, Privileged and Confidential, Attorney/Client Communication") as coming from the Defendant. A Motion to Dismiss the Indictment and Abate the Proceedings Through a Change of Venue or Continuance was denied by the Respondent Trial Court on Monday, March 17, 1997. See D.E. 3429. --------------------------------------- However, with the resources allowed it by the district court pursuant to the Crimes and Offenses Act of 1790 as modified by the Criminal Justice Act of 1963, the Defendant has made a substantial investigation and has produced volumes of evidence and specifications of materiality to the district court ex parse, in camera and on some occasions in open court or in camera with the prosecutors. The government's reaction has consistently been first to deny, then to produce a scant amount of information as the Defendant files formal motions, then to produce a little bit more just before the hearing, then to deny the existence of anything else, then when the "anything else" surfaces, grudgingly to admit that it has been found. See D.E. 1918 at 6-35. There is no better example of this than the government's submission to the defense in January, 1996 of a two-page FBI Insert of a conversation with Carol Howe in which she is not identified by her last name and every proper noun, including Dennis Mahon, Andreas Strassmeir, Elohim City, and the Reverend Robert Millar, is grotesquely misspelled so that it could not reasonably be found. D.E. 3313, Exhibit "D." Then, when this information surfaced, the government informed the Court that Ms. Howe had been an ATF informant until a date several weeks prior to April 19, 1995. See Transcript of Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at 67. Then, when the defense discovered that in fact she had continued to be an informant after the bombing, the government acknowledged to the Court that in fact she had been an ATF informant in late April and early May 1995 and had been sent back to Elohim City.[3] --------------------------------------- FOOTNOTES: [3] The government on background (see below) has confirmed details given to the Court in camera to ABC and NBC News. Hence the discussion here. --------------------------------------- See D.E. 3360 at 2-4. The same pattern of disingenuous, economical-with-the-truth statements and representations by the government to the district court permeates its claims concerning FBI Laboratory material (now presumably largely furnished), prior warnings, possible foreign involvement, and other material. The Petitioner asks this Court to enter a Writ of Mandamus directing the District Court to enter an order commanding the government to produce the material requested in the manner outlined by the defense in sealed district court documents D.E. 2768 and D.E. 3123. The District Court has declined to do so. See D.E. 3016; D.E. 2840 (January 8, 1997 Pretrial Conference: Volume m--Sealed); D.E. 2866 (January 9, 1997 Pretrial Conference: Volume IV--Sealed); D.E. 3410 (March 10, 1997 Pretrial Hearing--Sealed--Not Provided to Defendant Nichols). The defense has made a sufficient showing under Brady and Rule 16 that the requested information is required in order to defend properly against the allegations in the Indictment and for a fundamentally fair trial in this capital case. In order to file this Writ of Mandamus and make the appropriate allegations, most of the material relied upon originates from the public record, what has appeared in the press, and open judicial proceedings. In a few cases, names have been redacted or otherwise modified in order to protect the rights of other persons not on trial and to protect the security and secrecy of information.[4] --------------------------------------- FOOTNOTES: [4] Information given to the media by the government or others, even if the substance of the same material was filed under seal, is included here because it is already in the public record through interviews with the media. --------------------------------------- All of the documents filed under seal, some of which are ex parte, in camera pursuant to controlling caselaw, are identified by Docket Number ("D.E.") and within that Docket Number the exhibit number or page number so that the Court may quickly find the material. This issue arrives before the Court at this late date simply because the defense has repeatedly gone to the government with information and requests, had to then seek intervention from the district court, and the last district court order has been issued within the last two weeks. D.E. 3410. The district court has denied defense motions for either a continuance or, in the alternative, a dismissal. Trial is now set to commence on March 31, 1997, with the selection of the jury. The defense moves that the Court, while considering this matter, either stay the commencement of the trial, or proceed with jury selection but stay the commencement of evidence being received until this matter has been resolved in this Court. One hundred and sixty-eight people died in the Oklahoma City bombing. The devastation was total and complete. The public is entitled to accept the jury's verdict, whatever it is, with safety and confidence, bizarre press sensationalism and government stonewalling notwithstanding. The Petitioner is entitled to the relief set forth herein in order that he may meet the government's evidence. [CONTINUED IN PART FOUR] PART FOUR OF EIGHTEEN STATEMENT OF MATERIAL FACTS II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF THE ALFRED P. MURRAH! FEDERAL BUILDING. A. Immediate Effects of the Explosion. On April 19, 1995, at approximately 9:02 a.m. a "massive explosive" detonated outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. The shockwave of the explosion blew into and through the Murrah Building and scores of other buildings in the downtown Oklahoma City area, including the United States Courthouse located just one block away. D.E. 222 at 1. Alerted by the concussion of the blast, crowds of persons appeared from the areas surrounding the blast site and immediately began to tend to the injured, most cut by flying debris and still in uncomprehending shock at what had happened. Persons present near the explosion began to comprehend the scale of destruction that had occurred when they looked at the gaping ruins that moments before had been a federal office building--but which in a matter of seconds had been turned into a grave site for 168 federal workers with scores still trapped and injured in the collapsed, still smoking building. When the explosion occurred, the United States Courthouse trembled one block away as if caught in an earthquake. Over one hundred 36" by 54" windows shattered and flew into the Courthouse. Id. Inside, heavy courtroom doors were jammed, courtrooms were flooded with broken glass, judges' chambers were turned into piles of plaster, fallen ceiling tiles, and broken glass. Shards of glass peppered and scarred desks, courtroom furniture, and walls. Inside the Courthouse and the remaining structure of the Alfred P. Murrah Building, there was pandemonium. People ran screaming from courtrooms, judges' chambers, and offices. The halls quickly became jammed with panic-stricken people and a stifling mixture of dust and acrid smoke. The Courthouse exits were destroyed, making evacuation excruciatingly slow for everyone. No one had any idea what had befallen them or those far less fortunate in the Murrah Building. Terror and shock permeated the Federal Courthouse, the trapped survivors of the Murrah Building, and the occupants of surrounding buildings. See D.E. 222 at 6. The destruction of the Murrah Building, and the subsequent investigation by federal and state law enforcement, is simply unparalleled in American history. The resulting criminal prosecution of Timothy James McVeigh and Terry Lynn Nichols has resulted in an Indictment which accuses these two Defendants of participating in a crime which encompasses the intentional homicides of 168 people, inflicting injuries upon 503 others, damaging 320 structures in the area surrounding the Murrah Building, and being responsible for approximately $651 million dollars in recovery costs. D.E. 215 at 16. This is a federal criminal case in which the able 53-year-old Republican Governor of Oklahoma, Frank Keating, stated that the bombing in Oklahoma City was unlike anything he had ever seen as an FBI Agent, U.S. Attorney, or law enforcement official in the Reagan and Bush Administrations. This is a case in which Kevin McNally, Federal Death Penalty Resource counsel, stated in a sworn affidavit that, to his knowledge, is the largest murder case in American history. Id. This is a case which immediately captured the personal attention of the President of the United States, resulting in a trip to Oklahoma City by President Clinton to address survivors of the bombing and the nation. This is a case in which a Federal Grand Jury met and a preliminary hearing was held on an Air Force Base amidst the chirping of a family of birds because the bombing had significantly destroyed the Federal Courthouse in Oklahoma City. See United States v. McVeigh, No. M-95-98-H, Transcript of Preliminary Hearing had on April 27, 1995 at 3. The magistrate presiding over the preliminary hearing noted with judicial understatement that this case presented "unusual circumstances." Id. at 4. Susan Otto, the Federal Public Defender for the Western District of Oklahoma, in support of a Motion to Transfer, stated that she had not found a case in the history of this country that was of such magnitude. Id. at 10. This is now a capital case involving multiple investigation sites including Oklahoma, Kansas, Michigan, Arizona, New York, Florida, as well as others worldwide. This is a case in which Judge Russell, in granting the government more time to issue an Indictment, observed that the facts upon which the Grand Jury must ultimately base its determination are "highly unusual" and "complex"; that the April 19, 1995, bombing of the Murrah Building was an act of unprecedented terrorism resulting in a massive criminal investigation; that the criminal investigation has required the government to follow up more than 100,000 phone calls, analyze thousands of business records, and interview hundreds of witnesses and potential witnesses; and that there exists a huge volume of evidentiary material subject to a myriad of chemical and physical tests. See D.E. 107 (United States v. McVeigh, No. M-95-98-H, Order filed June 12, 1995 at 5). Three of the most rarely granted defense requests in criminal litigation were granted in this case because of its unique nature. This Court, in considering a Petiton [sic] for Writ of Mandamus, removed the then-presidng [sic] Judge assigned to this case in the initial stages. See Nichols v. Alley, 71 F. 3d 347 (10th Cir. 1995). As a result of this Court's decision, the Chief Judge of this Circuit assigned Chief Judge Richard P. Matsch to preside over this litigation. See D.E. 711. After giving careful consideration to the facts of this case, Chief Judge Matsch changed the venue of the prosecution to Denver, Colorado (918 F. Supp. 1467 (D. Colo. 1996)), and subsequently granted the defendants' motions for a severance (169 F.R.D. 362 (D. Colo. 1996)). See D.E. 984; 2376. Timothy McVeigh will be tried beginning March 31, 1997. D.E. 3429 B. The Response of the Federal Government. The prosecution in this case has at its disposal the resources of every federal, state, and local agency in the United States to interrogate, arrest, prosecute and convict those the Grand Jury charges with the bombing of the Alfred P. Murrah Building. The President of the United States pledged to send "the world's finest investigators to solve these murders." See D.E. 1079 at 10. Within hours of the President's statement, the Attorney General of the United States emphatically stated that "[t]he FBI and the law enforcement community will pursue every lead and use every possible resource to bring these people responsible to justice." Id. Innumerable federal agencies have participated in the investigation of this case. The day after the bombing the New York Times reported as follows: From offices and bases around the country, government aircraft carried to Oklahoma City an array of federal law enforcement officials, emergency management personnel and military forces, an operation that constituted one of the vastest[sic] responses to a crime in American history. A 24 hour FBI command center with 400 telephones was established in Oklahoma to coordinate the work of explosives teams, bomb technicians and portable scientific gear used to analyze chemical residues. D.E. 1079 at 10-11. According to a May 31, 1995, "Nightline" broadcast interview of former FBI Assistant Director Buck Revell, ". . . when you have an event of [the Oklahoma City bombing's] magnitude, you have to cast a very broad net." D.E. 1079 at 11. The President of the United States "dispatched a small army of federal investigators to Oklahoma and pledged a relentless hunt for the killers." Id. 1. The Government's Immediate Response to the Bombing. a. Mobilization. The government began its search for suspects within minutes after the gravity of the Oklahoma City bombing became apparent. The White House Situation Room, the Federal Bureau of Investigation's (FBI) Command Center, the Central Intelligence Agency's (CIA) Watch Office, and other agencies' nerve centers undoubtedly monitored media reporting of the bombing and established communications with personnel located at or near the scene in Oklahoma City. D.E. 1079 at 2. Government agencies throughout the United States were alerted to the potential for similar attacks. At the White House, a "crisis team" was convened in order to coordinate the intensive investigation. Id. at 13. This team, under the direction of the Justice Department, consisted of personnel from the Bureau of Alcohol, Tobacco and Firearms, the Federal Bureau of Investigation, the Secret Service, the Central Intelligence Agency, the National Security Agency, and members of the National Security Council. According to media reports, this crisis team was formed in the wake of the blast and met on Wednesday, April 19, 1995, via teleconference in Washington and convened again on Thursday morning at the White House. Id. CIA spokesman David Christian has verified to the media that the agency was involved in the Murrah bombing investigation. Id In addition, the investigative machinery of U.S. military intelligence agencies has been utilized in this criminal case. One media source reported that "the nation's intelligence community, the CIA and defense intelligence officials, also will contribute information, and send their own agents overseas to work digging up leads, according to the law enforcement experts." Id. Civilian and military intelligence agencies were placed on the highest alert here in the United States and similar warnings of impending attacks were forwarded to United States installations overseas. For example, The CIA's Directorate of Operations (DO) transmitted to stations and bases worldwide a high precedence cable instructing agency officers to query sources for information about the attack. The FBI's Counterterrorism Center issued a directive to all CIA stations to search their international sources for possible leads among foreign terrorist groups. Id. at 14. Officers in the CIA Directorate's six overseas divisions immediately began arranging meetings and conducting debriefing sessions. The domestic arm of the DO - the National Resources (NR) Division - also began combing contacts for leads concerning the bombing. (NR Division's procedures for obtaining information are described in United States v. Reward, 889 F. 2d 836 (9th Cir. 1989), although NR is described therein as the Domestic Collection (DC) Division). The CIA's sources include individuals holding positions in governments, military services, corporations, universities, political parties, and terrorist groups. Id. The agency's officers utilized both unilateral assets - those who are cooperating with the United States unbeknownst to their superiors; and liaison relationships - formal contacts between the CIA and foreign law enforcement, intelligence, and security agencies. Military Intelligence and the CIA similarly obtain information through the use of ostensibly private or commercial entities that are, in fact, intelligence platforms. Through liaison relationships, the government is also able to avail itself of the multitude of sources operated by foreign governments. See infra for description of assistance from Israel. b. Evidence From Public Sources of Government Use of Intelligence Networks With Foreign Nations in the Investigation of the Alfred P. Murrah Building Bombing. In its annual report, the State Department's Office of the Coordinator for Counterterrorism reports that the Clinton Administration is "deeply engaged in cooperation with other governments in an international effort to combat terrorism[.]" D.E. 1079 at 15. Such cooperation includes an "active network of cooperative relations with counterparts in scores of friendly countries" involving United States intelligence and law enforcement agencies. Id. The State Department's Office of the Coordinator for Counterterrorism conducts consultations on counterterrorism with many other governments including G-7 nations and the European Union. Additionally, there are now 11 treaties and conventions that commit signatories to combat various terrorist crimes. Id. United States government agencies, including the CIA and FBI, maintain liaison relationships with many countries. The Supreme Court has recognized the existence of these relationships, as well as the United States government's receipt of information through such contacts. See Snepp v. United States, 444 U. S. 507, 512 (1980) (''[T]he CIA obtains information from the intelligence agencies of unfriendly nations and from agents operating in foreign countries"). The United States derives substantial information from these associations. These liaison relations would have provided numerous reports concerning the Oklahoma City bombing, possible motives for the bombing, and possible suspects other than Timothy McVeigh. [CONTINUED IN PART FIVE] PART FIVE OF EIGHTEEN: In an interview on CNN on April 20, 1995, White House Chief of Staff Leon Panetta confirmed that the Justice Department was reviewing all of the intelligence network data in order to determine whether there are any leads. D.E. 1079 at 15. Mr. Panetta stated that the investigation into the bombing clearly involves looking at communications, both within the United States and outside the United States. Id. Also, CNN's State Department correspondent Steve Hurst stated that there was bound to be a volume of cable traffic coming into the State Department and into the CIA from stations abroad concerning information about the bombing. Presumably, Mr. Hurst is proficient and knowledgeable in the operations of the State Department, and his observations are supported by other media accounts establishing an FBI directive to CIA stations to search its international sources for possible leads among foreign terrorist groups. Id. at 16. c. CIA and NSA Investigation Protocol. In the immediate aftermath of the bombing, the CIA searched its databases for candidates who might have the means and motive to perpetrate the bombing. The databases were also used to verity the bona fides of sources providing leads. The CIA's stations and bases submitted numerous "name traces" on individuals as a result of the bombing investigation. These traces were requests for information on individuals, including those suspected of having knowledge of the bombing. Technical assets, such as global, regional, and local communication intercepts and reconnaissance satellites, were also used to obtain or verify information about the Oklahoma City bombing.[5] ------------------------------------ FOOTNOTES: [5] On May 10, 1995, the government, as part of its investigation of the bombing of the Alfred P. Murrah Building, enlisted the aid of the 1st Infantry Division at Fort Riley, Kansas, in obtaining Global Positioning System (GPS) readings for twenty (20) geographical sites. These readings were taken by the "Magellan GPS Nav 1000." The readings were taken "for possible satellite photograph requests[.]" D.E. 1079 at 16 n.7 (Exhibit "D"). ------------------------------------ The CIA's Counterterrorism Center was the focal point for all reports. The information gathered was then sent to government analysts and other official consumers, including the Justice Department. Id. at 16-17. Also in response to the attack the National Security Agency (NSA) promptly supplemented their existing "watch list" for domestic terrorist threats with specific terms related to the Oklahoma City bombing, potential suspects and suspect organizations. Id. at 17. A watch list enables NSA listening posts to key on specific words spoken in their global net of intercepted oral communications. The National Reconnaissance Office (NRO) was also requested to assist in the investigation of the bombing by providing satellite photography. Id. The NSA's sole reason for being is to intercept electronic messages worldwide and analyze these interceptions for useful intelligence and national security information. As reported by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities: [Tlhe National Security Agency was created by Executive Order in 1952 to conduct 'signals intelligence' including the interception and analysis of messages transmitted by electronic means, such as telephone calls and telegrams. D.E. 1079 at 17. Lewis Allen, a General in the United States Air Force and then-Director of the National Security Agency, testified before the Committee that the "mission of the NSA was directed to foreign intelligence obtained from foreign electrical communications[.]" Id. But in delineating the scope of the NSA's mission, the Committee pointed out that the NSA has interpreted "foreign communications" to include communication where one terminal is outside the United States. Under this interpretation, the NSA has for many years intercepted communications between the United States and a foreign country, even though the sender or receiver was American. Thus, the full range of the NSA's sphere of interceptions is virtually unlimited and unchecked. Id. at 17-18. Yet, the NSA is allowed specifically by Executive Order to assist domestic law enforcement authorities and to participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorists or narcotics activities. Id. at 18 (Executive Order 12333). With respect to methods of interception utilized by the NSA, a Senate Select Committee has reported the following: The use of lists of words, including individual names, subjects, locations, etc., has long been one of the methods used to sort out information of foreign intelligence value from that which is not of interest. In the past, such lists have been referred to occasionally as watch lists, because the lists were used as an aid to watch for foreign activity of reportable intelligence interest. However, these lists generally did not contain names of U.S. citizens or organizations. The activity in question is one in which U.S. names were used systematically as a basis for selecting messages, including some between U.S. citizens, when one of the communicants was at a foreign location. D.E. 1079 at 18. The system and the procedure for selection and interception has been described in the Select Committee report on the handling of the "watch lists": The information produced by the watch list activity was, with one exception, entirely a byproduct of our foreign intelligence mission. All collection was conducted against international communications with at least one terminal in a foreign country, and for purposes unrelated to the watch list activity. That is, the communications were obtained, for example, by monitoring communications to and from Hanoi. The watch list activity specifically consisted of scanning international communications already intercepted for other purposes to derive information which met watch list requirements. This scanning was accomplished by using the entries provided to NSA as selection criteria. Once selected, the messages were analyzed to determine if the information met those requesting agencies' requirements associated with the watch lists. If the message met the requirements, the information therein was reported to the requested agency in writing. D.E. 1079 at 18-19. Significantly, the NSA's interception of international communications sometimes includes, either incidently [sic] or accidently [sic], communications between two American citizens if one of them happens to be abroad. Id. at 19. Thus, within hours of the bombing of the Murrah Building, the NSA's supplemented watch lists would have enabled the agency to pluck a huge amount of data from its incredible volume of global electronic interceptions. The result, within this agency alone, would have been a massive amount of relevant information concerning the bombing, none of which has been given to the defense in this case. Procedures similar to the CIA's, NSA's, and NRO's for gathering information on the bombing were employed by foreign and domestic personnel of the Department of Justice and its enforcement agencies (the FBI, the Drug Enforcement Administration (DEA), the Immigration and Naturalization Service (INS), and the U.S. Marshals); the Department of State's Bureau of Diplomatic Security (DS); the CIA's Office of Security (OS); the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF, Customs Service (USCS)), Internal Revenue Service (IRS), and Secret Service (USSS); the Postal Service's Postal Inspectors; The Department of Defense's Armed Services, Defense Intelligence Agency (DIA), Naval Criminal Investigative Service, and the Defense Investigative Service, the General Services Administration's Federal Protective Service; the Department of Transportation's Coast Guard; and the Federal Aviation Administration (FAA). Other agencies, bureaus, and departments participated in the gathering of information as well. Personnel at all levels, suspecting the bombing to be a large scale terrorist attack resulting in numerous deaths, immediately mobilized all resources at the government's disposal. The result was a mammoth investigation without political or geographic limits. Id. at 19-20. 2. Evidence of the International Scope of the Investigation and the Involvement of Organs of State Intelligence in Several U.S. Domestic Bombing Cases Including the Alfred P. Murrah Building. The criminal investigation of this case included the use of the civilian and military branches of government; law enforcement, intelligence, and security agencies; foreign and domestic personnel and technical resources; and similar assets of other nations. The international scope of the investigation of this case is underscored by comments made by the Attorney General at an April 20, 1995, press conference: [Reporter]: The government of Israel has offered its help, because it has a vast experience with this sort of thing. Do you know if we are accepting that help? [Attorney General Reno]: We will, of course, rely on any additional resource that can possibly be involved and be utilized appropriately in bringing these people to justice. D.E. 1079 at 20. In a 1981 Executive Order, President Reagan authorized agencies within the intelligence community to "participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers or international terrorist or narcotics activities[.]" Id. at 21 (Executive Order 12333, December 4, 1981). The intelligence community is also authorized to provide specialized equipment, technical knowledge or assistance of expert personnel for use by any department or agency or, when lives are in danger, to support local enforcement agencies. Thus, the Chief Executive of this country has authorized specifically the use of instruments of state intelligence to aid law enforcement agencies in investigating terrorist attacks. The United States Department of State has acknowledged the federal government's use of intelligence organizations in response to terrorism: "A central element in the effective international effort to prevent and/or to bring about to justice those responsible for such attacks is the effective exchange of intelligence. The United States intelligence community is cooperating closely and effectively with other services as part of the international effort to identify those responsible[.]" Id. D.E. 1079 at 21. In fact, a report issued from the State Department's Office of the Coordinator for Counterterrorism states: Because terrorism is a global problem, the Clinton administration is deeply engaged in cooperation with other governments in an international effort to combat terrorism: U.S. intelligence and law enforcement agencies have an active network of cooperative relations with counterparts in scores of friendly countries. D.E. 1079 at 21-22. Such cooperative efforts have been further chronicled in the mainstream press: "In the bombing of the World Trade Center, in February 1993, the FBI, CIA and other agencies scoured the globe for leads and found many," Brian Duffy, et al., Extremism In America, U.S. New and World Report, May 8, 1995 at 30, and in the May 7, 1995, San Diego Union tribune article regarding the investigation into the car-bombing of a United States Navy captain - "[T]he CIA, the National Security Administration [sic], the Bureau of Alcohol, Tobacco and Firearms, the Naval Criminal Investigative Service and local law-enforcement agencies were involved." See D.E. 1079 at 22. As previously noted, after the bombing the initial "crisis team" assembled in the White House Situation Room consisted of personnel from the BATF, the FBI, the Secret Service, the National Security Agency, the Central Intelligence Agency, and members of the National Security Council. Id. at 22. Military officials from the defense intelligence agencies have participated in this investigation as well. Finally, the White House Chief of Staff, Leon Panetta, confirmed that the Justice Department conducted a review of data gathered from intelligence networks, including communications from both within the United States and outside the United States. Id. Thus, from its very inception, the investigation launched by the federal government in this case has utilized the resources of the FBI and other domestic law enforcement agencies in tandem with the intelligence gathering entities of the federal government with the imprimatur of an executive order allowing such a symbiotic relationship. In the first 48 hours after the bombing, the domestic law enforcement and intelligence agencies of the federal government were mobilized and directed toward foreign terrorists (concentrating on those from the Middle East) with no limit on available manpower, assets, technology, and without regard to geographical borders. 3. The Investigative Focus Upon Foreign Terrorists. News reports conclusively establish that the FBI's early analysis and the judgment of other counterterrorism experts pointed towards foreign responsibility for the Oklahoma City bombing. See D.E. 1079 at 23. CBS News reported shortly after the bombing that the FBI had received claims of responsibility for the attack from at least eight organizations. Seven of the claimants were thought to have Middle Eastern connections. D.E. 1079 at 23. Steven Emerson, an expert on Islamic Jihad said: "There is no smoking gun. But the modus operandi and circumstantial evidence leads in the direction of Islamic Terrorism." The government received calls from six people saying that they were from different Muslim sects and asserting that they were responsible for the bombing. Id. at 23-24. On April 20, 1995, the New York Times reported that federal authorities opened an intensive hunt for the perpetrators of the bombing and "proceeded on the theory that the bombing was a terrorist attack against the government, law enforcement officials said." Id. at 24. The immediate speculation according to some experts, focused on the possibility that the attack had been the work of Islamic militants, similar to those responsible for the World Trade Center bombing in February of 1993. D.E. 1079 at 24. John Magaw, director of the Bureau of Alcohol, Tobacco and Firearms, when asked whether his agency suspected terrorists, told CNN: "I think any time you have this kind of damage, this kind of explosion, you have to look there first." The FBI even went so far as to approach the Department of Defense about including Pentagon Arabic speakers in the investigative team. Former FBI Assistant Director in Charge of Investigation and Counterterrorism Expert Oliver "Buck" Revell, was quoted as saying, "I think what we've got is a bona fide terrorist attack." Mr. Revell went on to state, "I think it's most likely a Middle East terrorist. I think the modus operandi is similar. They have used this approach." D.E. 1079 at 24. FBI officials in Washington, speaking anonymously, suggested strongly the investigations were focusing on Middle East terrorists . . . among the leads being investigated was a television report of three males of Middle East origin who rented a brown Chevrolet pickup at the Dallas-Fort Worth International Airport. Witnesses have reported seeing three men driving away from the blast area in a similar pickup. D.E. 1079 at 25. An FBI communique that was circulated Wednesday suggested that the attack was carried out by the Islamic Jihad, an Iranian-backed Islamic militant group. The communique suggested the attack was made in retaliation for the prosecution of Muslim fundamentalists in the bombing of the World Trade Center in February, 1993, said the source, a non-government security professional. "We are currently inclined to suspect the Islamic Jihad as the likely group," the FBI notice said. See D.E. 1079 at 25. The FBI's suspicion of an Islamic Jihad connection would have been further reinforced by a sobering fact: Oklahoma City is probably considered one of the largest centers of Islamic radical activity outside the Middle East. Id. at 26. The extensive loss of life and the targeting of a federal facility motivated law enforcement, the military, and U.S. intelligence agencies to engage in the full range of overt and covert resources located throughout the world. Their mission was two-fold: stop other possible attacks, and identify the individuals and groups responsible for the Murrah Building bombing. The government's far-reaching efforts in pursuit of Middle Eastern suspects in this case have become part of the public record. An affidavit of FBI Special Agent Henry C. Gibbons, filed in United States v. Abraham Abdallah Ahmed, No. M-95-94-H, W.D. Okla., April 20, 1995, strongly suggests intelligence assets are being used in the bombing investigation. See D.E. 1079 (Exhibit "E"). Gibbons' affidavit explains how a Jordanian American suspect's luggage was searched in Italy, and how the suspect was detained by British authorities and then forcibly returned to the United States. Id. That a suspect of Middle Eastern origin was promptly apprehended confirmed the widely-held suspicion that a foreign terrorist group would be implicated in the bombing. According to the New York Times, Abraham Ahmed as "caught in the dragnet that spread around the world after the bombing." The newspaper went on to state: In his case, he was first singled out for attention in accordance with a general profile of possible suspects, including young men traveling alone to destinations like the Middle East. The profile was issued by the FBI to police agencies and airport authorities throughout the world. Mr. Ahmed lives in Oklahoma. He checked into O'Hare International Airport in Chicago on Wednesday night for a flight to Rome, with connections for a flight to Amman, Jordan. In addition to fitting the suspect profile, he was dressed in a jogging suit similar to one that a witness in Oklahoma City had reported seeing worn by a man at the scene of the explosion. D.E.1079 at 27. The initial focus on foreign terrorist connections undeniably placed the intelligence community at the forefront of the investigatory efforts, since United States intelligence assets exist solely to protect against such foreign threats. Nor is the government's focus limited to the Middle East. The Sunday Times in London reported on February 4, 1996, that senior FBI sources have confirmed that the Bureau was "also pursuing inquiries into a possible neo-Nazi link between the Oklahoma City bombers and British and German extremists." D.E. 1079 at 27. Because of Defendant Terry Nichols' ties to the Philippines, within days of the bombing U.S. and Philippine officials began reconstructing his movements there. An American Embassy legal attache interviewed Marife Nichols' father, Eduardo Torres, and showed him sketches of the two original bombing suspects. Id. at 27-28. Philippine intelligence agents briefly placed Mr. Torres under surveillance to make sure he was not involved with terrorism. Id. Clearly then, the tentacles of the federal government have reached out worldwide in the investigation of the bombing of the Murrah building. Compelled by the urgency of a grievous attack on the United States government itself, resources ordinarily dedicated to military and intelligence applications were brought to bear on a domestic criminal investigation. By the government's commitment of such resources to a criminal investigation, the Defendant becomes entitled to the product of these resources, so that they may be as fairly and justly applied to his defense as they are to his prosecution. [CONTINUED IN PART SIX] PART SIX OF EIGHTEEN: III. THE ARREST OF TIMOTHY MCVIEGH. On April 21, 1995, federal law enforcement officials became unshakably focused upon Timothy McVeigh who was being held in the Noble County Jail in Perry, Oklahoma, on various state misdemeanor charges. See D.E. 1457 at 4. Mr. McVeigh had been pulled over by an Oklahoma Highway Patrolman, Charles Hanger, on Interstate Highway 35 on the morning of April 19, 1995. McVeigh was driving a 1977 pale yellow Mercury Marquis, and was stopped by Trooper Hanger because the car McVeigh was driving displayed no license plate. McVeigh told Trooper Hanger that he was returning from Arkansas.[6] --------------------------------------- FOOTNOTES: [6] Evidence held by the government and Defendant clearly shows Mr. McVeigh traveled to and from Arkansas on a frequent basis. --------------------------------------- Hanger arrested McVeigh on the basis of the traffic violation and the state misdemeanor charge of carrying a weapon. McVeigh's yellow Mercury was left on the side of the highway and was not impounded. Between April 19, 1995, and April 21, 1995, federal law enforcement officials traced a Vehicle Identification Number appearing upon the axle of the truck believed to have carried the bomb to a Ryder rental truck dealership in Junction City, Kansas. The FBI prepared a composite drawing of "unidentified subject #1" based upon descriptions provided by witnesses at the Ryder rental dealership. By showing the composite drawing to employees at various motels in Junction City, Kansas, the FBI "determined" that the drawing resembled a man named Timothy McVeigh that had been a guest at the Dreamland Motel in Junction City from April 14-18, 1995. A records check then revealed that a man named Timothy McVeigh was in custody in the Noble County Jail in Perry, Oklahoma, facing state misdemeanor charges. The FBI, knowing their suspect was in custody at a small county courthouse in Oklahoma, proceeded to orchestrate what is now commonly referred to as the "perp walk" in which a criminal suspect is led away from confinement in shackles by law enforcement personnel for the media and all to see. The FBI was not disappointed. See D.E. 2825 at 7. Mr. McVeigh was detained in the courthouse while the world media gathered and his walkout was timed for the evening network news broadcast. With the nation, and indeed much of the civilized world watching, Timothy McVeigh, wearing a bright orange prison jumpsuit and no protective vest, shackled at the wrists and ankles, and wearing a militarystyle haircut and a "thousand yard" stare, was paraded before a mob of angry citizens, many of whom shouted repeatedly, "baby killer, baby killer" at him. This was how the Petitioner was transferred to federal custody.[7] ------------------------------------------ FOOTNOTES: [7] The government claims the delay was caused by the wait for a Federal Warrant and a State Judge who granted Mr. McVeigh the opportunity to confer with a local attorney who had repeatedly been blocked from seeing the Defendant by the local Assistant District Attorney. The attorney filed a Motion for Habeas Corpus to produce Mr. McVeigh for an interview which was granted. Thus, the delay was not caused by the Judge or the attorney, but the State prosecutor. A Federal John Doe 1 Warrant was already in place. ----------------------------------------- [CONTINUED IN PART SEVEN] PART SEVEN OF EIGHTEEN: IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN." On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial District of Oklahoma returned an eleven count Indictment accusing Timothy James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass destruction, actual use of a weapon of mass destruction, destruction by explosive, and eight counts of first degree murder. (Indictment in CR95-110, filed August 10, 1995, no docket number assigned). The Indictment alleges that McVeigh and Nichols constructed a truck bomb and on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred P. Murrah Federal Building during regular business and day-care hours. The Indictment then lists the names, spread out over six typewritten pages, of the persons present at the Alfred P. Murrah Federal Building on the morning of April 19, 1995, and who were killed as the result of the explosion. The Grand Jury found evidence that Timothy McVeigh and Terry Nichols conspired and agreed together with "others unknown to the Grand Jury" to use a truck bomb against the federal government, and specifically against the Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma City, Oklahoma, which resulted in the destruction of the building, grevious [sic] bodily injury to scores of persons, and the death of 168 persons. See Indictment at 1-2. This Indictment has never been withdrawn or modified. Thus, the Grant Jury's allegation on the eve of trial is that this crime was committed and aided by "others unknown." By refusing to provide the requested discovery material, the government is attempting to prevent the Petitioner from learning the identity of what it calls "others unknown" but which the petitioner characterizes as "the unknown others."[8] -------------------------------------- FOOTNOTES: [8] The government has claimed below, and will undoubtedly assert here, that it has provided "unprecedented discovery" and gone far beyond what the rules and case law require. That claim is hollow and empty. Chief Judge David Russell of the Western Judicial District, before the return of the Indictment, attempted to schedule a discovery conference in order to facilitate the orderly flow of discovery, but the government refused to attend. The defense was willing to attend. Upon the return of the Indictment, the standing orders of the Federal Judges in the Western Judicial District, where the case was pending, were blithely ignored. The dear mandate of former Chief Judge Daugherty's orders, which are precedent in the Western District and found at United States v. Penix, 516 30 F. Supp. 248, 255 (W.D. Okla. 1981) were ignored. -------------------------------------- During the period of time that motions were pending for recusal of Judge Alley, Judge Alley refused to entertain or rule on any discovery requests by the Defendant. Thus, the government had an almost 4-1/2 month period after the return of the Indictment on August 10, 1995, in which it ignored existing judicial rules and took advantage of Judge Alley's statesmanlike decision not to rule on matters before him while motions for his recusal were pending. The government provided a microscopic amount of discovery consisting primarily of "statements of the Defendant" as required by the Federal Rules and access to some physical evidence. In early January 1996, the government furnished Defendant's counsel all of the 302's then in existence concerning the following witnesses: Michael and Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom Kessenger, and one Oklahoma City witness, Daina Bradley. However, before furnishing this information, the prosecution, in a letter to the defense claimed that the prosecutors had personally reviewed the 302's and that nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was fantastic and incredible on its face and totally incorrect. Each of the statements contained highly exculpatory Brady material and not just Giglio material. The government then proposed an oral reciprocal discovery agreement with the Defendant in which witness statements would be exchanged except for those witness statements taken by lawyers, even though FBI agents or defense investigators might be present. The government also failed to provide Grand Jury testimony until prodded by the district court which directed the government to produce, first, the Grand Jury testimony of Michael and Lori Fortier. Finally, the government turned over Grand Jury testimony approximately four months before trial. Massive litigation and hearings were required before the government turned over all FBI documents (or at least it represents that it has turned all of them over) relating to the Federal Bureau of Investigation Laboratory when the government prosecutors knew that serious allegations were being made and that an investigation was being conducted by the Inspector General which later validated a significant number of the allegations with respect to the handling, collection, analysis of evidence from the bomb site. The government also delayed producing 302's, in some cases, more than a year after the 302 had been typed. The government's claims thus that it has produced unprecedented discovery are specious. It can be summarized as follows: The government gave the Defendant 100% of that which is irrelevant and withheld 95% of that which is relevant until, either by Court order or the threat of judicial action, it grudgingly began to flow the information to the Defendant, more than a year after the return of the Indictment. These assertions by the Defendant are well documented in the trial record below. See, e.g., D.E. 1310;1918. V. THE "OTHERS UNKNOWN" TO THE GRAND JURY. The theory of the prosecution in this case, not the Grand Jury's theory, is that the two named Defendants constructed a simple device capable of toppling a nine-story building at a public fishing lake and that one of them transported this device over two hundred miles without blowing himself up. That is the heart of the prosecution's case. Any evidence concerning the participation of others, the complexity of the device, or foreign involvement takes away the heart of the government's case and there is therefore an institutional interest on the part of the government in keeping such evidence shielded from the defense and the public. But unfortunately for the government such evidence exists. One of the core allegations in the Indictment is that Timothy McVeigh rented a Ryder truck at Elliott's Body Shop in Junction City, Kansas. The evidence, however, negates McVeigh's presence and suggests instead the presence of two other suspects. A. Elliot's Body Shop. The government's theory is that Timothy McVeigh rented a Ryder truck from Elliott's Body Shop using the name "Robert Kling." However, three employees of Elliott's Body Shop each informed the FBI that "Kling" was accompanied by another man. Eldon Elliott met Robert Kling on Saturday, April 15, 1995, at approximately 8:45 a.m. See D.E. 1081 Exhibit "D." On this day, Kling was by himself, gave Elliott $281 to rent the truck, and told Elliott that he would pick the truck up on Monday at about 4:00 p.m. When Kling came into Elliot's on Monday there was, according to Elliott, a second individual with him. Id. at 2. Elliott described the person with Kling as a white male, 5'7" to 5'8", and wearing a white cap with blue stripes that headed front to back. He described Kling as a white male, 5'10" to 5'11", 180 to 185 lbs., with a medium build. Id. Vicki Beemer, then the bookkeeper and counter clerk at Elliott's, told the FBI on the day of the bombing that a contract to rent a truck was executed on Monday, April 17, 1995 with Robert Kling. Id. (Exhibit "A"). She verified that Kling had reserved the truck and prepaid the contract with cash. Beemer told the FBI that she recalled a second person accompanying Kling but that she had no specific recollection of that individual. She stated that while she processed the contract another employee named Tom Kessenger was sitting in the office watching. Id. Kessenger initially told the FBI that two males came into Elliott's and initiated a conversation with Vicki Beemer concerning a rental truck. See D.E. 3240 at 7, 10 (Hearing on Motions to Suppress Eyewitness Identification--Volume I, February 18, 1997). Kessenger stated that Robert Kling was accompanied by the individual that later became known worldwide as John Doe 2. Id. at 10. He described this person as wearing a black t-shirt, jeans, and a ball cap colored Royal blue in the front and white in the back. Id. at 11. He also stated that John Doe 2 had a tattoo on his upper left arm. However, Kessinger has testified that a year and half after he first saw John Doe 2 at Elliott's Body Shop, the government convinced him that he had made a mistake and identified another person who rented a truck on April 18, 1995. Id. at 15-16. He described Kling as 5'10", weighing 175 to 185 lbs., green or brown eyes, and with a rough complexion or acne. Id. at 9; D.E. 1458 (Exhibit "F)." Although Elliott and Kessenger may have been describing the same person they saw and knew as Robert Kling--it is clear that neither was describing Timothy McVeigh. At the time that McVeigh was booked into the Noble County Jail on April 21, 1995, he weighed 160 lbs., stood 6'2", his eyes were blue, and his complexion was clear. See D.E. 1457 at 6. In addition, the government and defense both have, and it has been referenced in open court proceedings, a video tape of the accused at McDonald's on I-70 in Junction City, a mile and a third away from Elliott's Body Shop. The accused is seen at McDonald's between 3:55 and 4:00 p.m. wearing clothes completely different from those ascribed to Robert Kling. The accused is supposed to have traveled the 1.3 miles on foot, in less than 20 minutes, and somehow or the other along the road, changed clothes. B. Oklahoma City Eyewitness. The government has announced that it will not call a single identification witness from Oklahoma City. The government has declined to do so for a very good reason--all of them undercut the government's theory of the case; perhaps none more so than the dramatic story of a young woman who was trapped in the rubble of the Murrah Building, had to have a leg amputated, and lost her mother and two children in the bombing. Her sister was also injured but survived. See D.E. 2191 (Exhibit "Y"). She was first interviewed by the FBI on May 3, 1995, at the hospital and then again on May 21, 1995. She was also interviewed by the Defendant and several reporters. Her story is consistent in all accounts. She stated that she left her home in Oklahoma City at approximately 7:15 a.m. on the morning of April 19, 1995, to go to the Social Security Office. She went with her mother, two children, and her sister. Id. She recalled standing in the lobby of the Social Security Office in the Murrah Building near a large window facing Fifth Street when she looked out the lobby window and saw a Ryder truck pull into a parking place in front of the building between two cars. After the truck parked, she then observed an individual exit the passenger side of the Ryder truck and start walking away. She stated that she observed a side view of the person and described him as an olive-skinned (he looked also like he was tanned), white male, wearing a baseball cap with black, clean cut hair, with a slim build and also wearing jeans and a jacket. She observed the man walking very fast, heading west, toward Harvey Street. Id. The next thing she remembered was feeling what she described as electricity running through her body and then falling into rocks. While she was in the hospital convalescing from her injuries, the FBI showed her a sketch consisting of frontal view of a man wearing a hat--John Doe 2. She told the FBI that the unknown male that she saw looked similar to the man in the sketch. D.E. 2191 (Exhibit "Y" at 2). C. Jeff Davis. The government contends that "Robert Kling," the same person who rented the Ryder truck from Elliott's Body Shop and who is alleged to have been Timothy McVeigh, placed an order for Chinese food at the Hunam Palace Restaurant in Junction City, Kansas, on April 15, 1995. D.E. 2166 at 13. The telephone call to the restaurant allegedly originated from room # 25 at the Dreamland Motel which was the room allegedly occupied by a guest who claimed to be Timothy James McVeigh. The restaurtant [sic] dispatched a delivery driver, Jeff Davis, to deliver the order to room # 25 at the Dreamland Motel. Davis has been interviewed several times by the FBI and has consistently maintained that the person he delivered the food to was not Timothy McVeigh. See D.E. 2482 at 10, Exhibit "P." Davis has described the person to whom he delivered the food order as having hair that was "unkept." Timothy McVeigh, a decorated Gulf War veteran, keeps his hair short and neat. Davis recalled that the person at the Dreamland had a very slight overbite. Timothy McVeigh does not have an overbite. Davis recalled that the person at the Dreamland had a regional accent, possibly from Oklahoma, Kansas or Missouri. Timothy McVeigh was born and raised in New York. Davis has stated to the FBI point blank that the person he saw and heard at the Dreamland Motel four days before the bombing of the Murrah Building was not Timothy McVeigh. In addition, although the government contends that Timothy McVeigh occupied room # 25 at the Dreamland Motel, his fingerprints were not found in the room. D.E. 2482 (Exhibit "GG"). In addition, there is evidence that a Ryder truck was seen at the Dreamland Motel-only it was seen on Easter Sunday, April 16, 1995, by at least four witnesses, Eric and Lea McGown, David King, and King's mother--one day prior to Monday, April 17, 1995, the date the government alleges that Timothy McVeigh and John Doe 2, using the name "Robert Kling," rented a Ryder truck from Elliott's Body Shop. D.E. 2191 at 36-37. The date is indelible in the memory of Lea McGown, the manager of the Dreamland Motel, because she leaves her hotel only twice a year--at Christmas and Easter. April 16, 1995 was Easter Sunday. Id. None of the individuals have been interviewed by the Defendant, but several have been interviewed by the media and their statements are a matter of public record. D. Frederick Schlender. The government alleges that Terry Nichols and Timothy McVeigh purchased two tons of ammonium nitrate fertilizer from a farm cooperative in McPherson, Kansas. See Indictment at 3, 4. The government's theory is that the 4,000 lbs. of ammonium nitrate purchased at the McPherson Co-Op was used as a component of the bomb that destroyed the Murrah Building. See D.E. 2166 at 9 (Hersely Grand Jury at 45). Two separate purchases are alleged--one on September 30, 1994 and another on October 18, 1994. See Indictment at 34. Frederick Schlender was employed at the McPherson Co-Op during the time of the purchases of the ammonium nitrate. See F. Schlender Grand Jury Transcripts at 6-9. No employee at the Co-Op is able to describe the individuals who made the September 30, 1994, purchase. In his interviews with the FBI and in his testimony in open court, Schlender was able to recall the two men who made the purchase on October 18, 1994, as well as the vehicle used to transport the ammonuim [sic] nitrate. D.E. 3263 at 606 07. He recalled that the purchase was made by two men driving a pickup truck with a red trailer hitched on the back. Although he gave a description of the pickup truck that was inconsistent with the truck owned at the time by Terry Nichols, and neither Defendant owned or used a red trailer, he was able to recall that the driver of the truck may have been Terry Nichols, but stated unequivocally that neither the driver nor the passenger was Timothy McVeigh. D.E. 3263 at 613, 659. The witness testified to the same facts at an open court hearing. The government claims to have a receipt with Tim McVeigh's fingerprints on it. This receipt allegedly is for the purchase of ammonium nitrate. Leaving aside the question that it is highly debated whether the bomb in fact was made of ammonium nitrate, since clearly Mr. McVeigh was not present when the ammonium nitrate was purchased, it is possible it was purchased by Terry Nichols for innocent reasons (the government has evidence that Terry Nichols packaged ammonium nitrate in small bags and sold them at gun shows) and that Mr. McVeigh, an acknowledged friend of Mr. Nichols, may have in fact innocently touched or handled the receipt. E. Legal Significance of the Existence of "Others Unknown." Even if, for purposes of this Petition, one assumes that Terry Nichols was involved in the planning and/or commission of this crime, there are possibly as many as four others still unknown. The identities of these persons may be the difference between a conviction and an acquittal in this case, are literally a matter of life and death, are not explained by the government, and the defense believes that, in light of the massive federal resources devoted to this case by the government, the government possesses information which would shed light on the identities of these persons. But absent a direct court order compelling the government and its agencies to produce the information to the defense, the truth will never be known. The bureaucratic instinct for self-preservation and the institutional pressures for a neat and tidy conviction in this case ensure that, in the absence of coercion from this Court, information vital to the defense will simply never see the light of day. [CONTINUED IN PART EIGHT] PART EIGHT OF EIGHTEEN: VI. PRIOR WARNING, ATF INFORMANTS, AND POSSIBLE "OTHERS UNKNOWN." A. Elohim City. Elohim City is a 240 acre compound near Muldrow, Oklahoma, consisting of between 25 and 30 families. D.E. 2482 at 19. Elohim City is listed in the publication Terrorist & Extremist Organizations In The United States at 109. According to this publication, Elohim City preaches white supremacy, polygamy and the overthrow of the government. Elohim City is also closely aligned with the extremist The Covenant, the Sword and the Arm of the Lord (CSA) and has been known to store weapons for that group. D.E. 2482 at 19. The spiritual leader at Elohim City is the Reverend Robert Millar. Elohim City had a close association with the Christian Identity Movement and The Covenant, the Sword and the Arm of the Lord which had its own grievance against the United States government. See D.E. 2191 at 33. The federal government conducted a raid on the CSA on April 19, 1985--exactly ten years to the day prior to the Oklahoma City bombing. See Id. at 33-34; D.E. 2840 (Pretrial Conference: Volume m--Sealed, January 1997 at 181). Members of the CSA now reside at Elohim City. One of the members of CSA turned on the organization and testified at the trial of Richard Snell in Arkansas. Snell was on trial with others on charges of sedition--that they conspired to destroy the Murrah Building in Oklahoma City with a rocket launcher in the early 1980s. Id. Snell was convicted on unrelated capital charges, sentenced to death in Arkansas, and was executed on the very day of the bombing in Oklahoma City--April 19, 1995. Id. One of his last statments [sic] before he was executed was, "Governor, look over your shoulder, justice is coming." D.E. 3410 at 16 (Pretrial Hearing--SEALED--Not Provided to Defendant Nichols, March 10, 1997). (Information in public press reports). His body is buried at Elohim City. The government has alleged in the Indictment that the Defendants used a calling card, referred to as the Bridges' Spotlight card, as a means to prevent calls from being traced. See Indictment at 2. Phone records of the Bridges' Spotlight debit card reveal that a call was made from a motel in Kingman, Arizona, to Elohim City minutes before a call was made to a Ryder Truck rental store in Arizona. According to residents at Elohim City, the caller asked to speak to an individual named Andy Strassmeir. Around the same time from the same motel and again with the Bridges' card, nine calls were placed to a National Alliance Office in Arizona. The National Alliance is an organization headed by William Pierce, author of The Turner Diaries--the book characterized by the government as the "blue print" for the Oklahoma City bombing. See D.E. 2166 at 16. In addition to the alleged phone call to Andy Strassmeir at Elohim City from someone allegedly using the Bridges' calling card, Strassmeir acknowledged meeting Timothy McVeigh at a gun show in Tulsa, Oklahoma in 1993. D.E. 2331 (Exhibit "2" FBI 302 D-12993). Although Strassmeir stated that he was unsure of the exact date of the meeting, he did recall that it took place sometime between the start of the federal raid on the Branch Davidian compound in Waco, Texas, February 28, 1993, and the conclusion of the standoff on April 19, 1993. Id. Strassmeir acknowledged that he attended gun shows with other residents at Elohim City where he was living at the time. He stated that he resided at Elohim City for approximately four years, leaving in August 1995. Dennis Mahon, who now lives in Tulsa, Oklahoma, where Strassmeir says he met Timothy McVeigh, ran "dial a racist" hotline and would often visit Elohim City to engage in paramilitary training. D.E. 3123 (Exhibit "A"). As will be detailed below, a confidential ATF informant has reported that Mahon and Strassmeir discussed "targeting federal installations for destruction," such as the Tulsa IRS Office, the Tulsa Federal Building, and the Oklahoma City Federal Building. According to the ATF informant, Mahon and Strassmeir made at least three trips to Oklahoma in November 1994, December 1994, and February 1995. Id. Elohim City also housed four of the six individuals arrested and charged with a series of mid-western bank robberies which allegedly were made in the name of "Aryan Revolutionary Army."[9] -------------------------------------- FOOTNOTES: [9] Among the residents of Elohim City, two have a striking physical resemblance to Timothy James McVeigh and another has a strong physical resemblance to the person the government describes as John Doe No. 2. -------------------------------------- The four individuals arrested and charged in a series of mid-western bank robberies described themselves as members of the Aryan Revolutionary Army. The Grand Jury charged the gang of robbers were Richard Lee Guthrie, Jr., Kevin McCarthy, Scott A. Stedeford, Peter Langan, Mark Thomas and Michael Brescia. D.E. 2191 at 17. Richard Lee Guthrie, Jr., committed suicide (allegedly) in his jail cell in Ohio after entering a plea of guilty and offering to cooperate with the federal government in the prosecution of the remaining three. Two of the remaining six, Kevin McCarthy, Scott Stedeford, have ties to Elohim City in that they lived there for several months as did Brescia. Mark Thomas, the leader of the Posse Comitatus in Pennsylvania and an Aryan Nations member, and who was close to two of the mid-west bank robbers, was in Elohim City on the Thursday before the bomb attack on Oklahoma City. D.E. 2191 at 34. Mark Thomas allegedly introduced the four of them to each other in either Eastern Oklahoma or Western Arkansas in 1994. Id. In the Winter of 1994, or the Spring of 1995, but in any event, before the April 19, 1995, Oklahoma City bombing, federal officials were actively planning a raid on Elohim City. If Elohim City was aware of the raid, then Carol Howe's information that they would strike first and attack the federal government was a real potential. Elohim City knew, or at least strongly suspected, there would be a raid because Rev. Millar admitted his fears and apprehensions to two local sheriffs. Elohim City also had located a series of "spotters" who would advise them of approaching suspect vehicular traffic. Millar also complained of an increase in aerial over-flights of Elohim City and the community also monitored police scanners. Thus, in the weeks before April 19, 1995, Elohim City (1) was populated by several individuals who later were indicted for armed bank robbery involving the use of bomb threats; (2) was populated by individuals who previously had engaged in armed confrontation with the federal government, exactly ten years before; (3) had avowed it would not be another Waco and would stake first in a "Holy War"; (4) knew that the federal government was actively planning a raid; (5) was populated by people committed to its belief of Christian Identity, including neo-Nazis with training manuals on how to make ammonium nitrate bombs. Finally, there was one other element present at Elohim City, the significane [sic] of which has not been fully appreciated. It may be a far reach to make a connection between Elohim City and the Oklahoma City bombing to Iraq or Iran, but the reach is not far at all. Present at Elohim City was a German national with a commitment to neo-Nazism and an individual who already had demonstrated a willingness to break the law by overstaying his visa, and by assuming the identity of another and driving through Eastern Oklahoma with books in his car on how to make a bomb. Also present at Elohim City was Dennis Mahon who once described himself as "the master of all disguises." Mahon is a world traveler with extensive trips to Germany and efforts to enter Canada and the United Kingdom. Mahon was the facilitator. Where does all this leave Tim McVeigh? Is he a part of this? The evidence suggests not and certainly the defense will contend that he is not. Tim McVeigh is the classic example of the right man at the wrong place at the wrong time. Eyewitnesses may place him at places, but the eyewitnesses' accounts are variable and changing. What is missing is the physical evidence and other evidence that ties him to the crime. Ideology is not proof of complicity or involvement in terrorist attacks. In addition, April 19 was the date of the execution of Richard Snell, soon to be buried in Elohim City. The same Snell who had previously planned and considered a rocket launched attack on the Murrah Building which would destroy it. Thus, the persons responsible for the Murrah Building bombing were alerted, ready, armed, committed, and poised to strike. And strike they did. The government had knowledge from an informant plus knowledge it would obtain from simple, ordinary analysis of the criminal intelligence available to it. It conducted a somewhat superficial security search of the federal property in downtown Oklahoma City and found nothing. When the bomb went off, federal authorities were first stunned and then realized that they did in fact apprehend the danger and had conducted a limited physical inspection, but to admit such prior knowledge and such limited physical search would be to face congressional inquiry and public outrage of such ferocity that confidence in American government would be badly shaken. April 19, 1995, was December 7, 1941, the Pearl Harbor strike, and December 21. 1988. the bombing of Pan Am 103, all over again. [CONTINUED IN PART NINE] PART NINE OF EIGHTEEN: B. Dennis Mahon. Andreas Strassmeir and Carol Howe. 1. Dennis Mahon. Dennis Mahon is a virulent racist and avowed enemy of the U.S. government. He is the No. 3 person in authority in the White Aryan Resistance movement led by Tom Metzger. D.E. 2191 at 10. There are videotapes featuring Mahon, in full Ku Klux Klan uniform, lighting a cross at a Klan recruiting trip in Germany, and yet another videotape of Mahon firing a semi-automatic rifle during paramilitary training for Klan members. Mahon conducted a "tour" in Germany in order to recruit other right-wing extremists. The costs of the trip were split between Mahon and his "German supporters." Mahon joked that if he was fined the usual 1,000 Deutsche Marks (approximately $600) for every time he gave the Nazi salute, he would owe 10,000,000 Marks, explaining "I gave hundreds while I was there." Mahon is headquartered in Tulsa, Oklahoma, and has referred to the Oklahoma City bombing as a "fine thing" and stated further, "I hate the federal government with a perfect hatred . . . I'm surprised that this [the bombing] hasn't happened all over the country." He has further been quoted as saying that "all methods are legitimate to save your nation." D.E. 2191 (Exhibit "M"). The Iraqi government has given Dennis Mahon thousands of dollars over the past six years. Mahon has admitted to receiving money from Iraq approximately once a month and stated that "it's coming from the same zip code where the Iraqi Embassy is, but they don't say it's from the Iraqi Embassy." The money started arriving in 1991 after Mahon started holding rallies protesting the Persian Gulf War. Mahon is a close friend of Andreas Strassmeir, the ex-head of security at Elohim City and Mahon has lived at Elohim City. During Operation Desert Storm, Mahon produced several videotapes which were distributed to public access television stations suggesting that the United States' policy in Iraq was wrong. A defense attorney has interviewed Mahon, and the defense received, through an intermediary, a tape recording that Mahon had made to be given to our client. The intermediary felt that the delivery of such tape recording was improper and was concerned about its implications and forwarded it to the defense. The defense did not know whether the purpose of this tape recording was to encourage the Defendant to "sacrifice" himself for the eventual "justice" of the cause or was a subtle threat intended to remind the Defendant that members of his family were vulnerable.[10] ------------------------------------- FOOTNOTES: [10] The defense has no information that Mr. McVeigh was ever present at Elohim City or ever met Dennis Mahon. ------------------------------------- When the defense learned that Mahon and his brother had telephoned Germany with orders to kill Strassmeir, the FBI was immediately informed. Mahon's taped message goes on to say that Mr. McVeigh is "innocent by reasons of entrapment," but that notwithstanding being innocent, he should accept the sacrifice in order that justice may prevail. Mahon is a frequent participant in gun shows. Mahon has been banned from the United Kingdom and from Canada and was characterized as an international terrorist. A majority of German terrorists have been trained in Palestinian camps in Jordan, South Yemen, Syria, Iraq, and Lebanon. D.E. 2191 at 11. Nebraskan Gary Lauck who was arrested by German authorities for smuggling terrorist manuals and Nazi propaganda to neo-Nazis in Germany, wrote a 20-page manifesto entitled, "Strategy, Propaganda and Organization." The paper describes the integration of worldwide extremist groups into a tight network and "military education with terrorist aims." Sources have informed counsel that Lauck had frequent contacts with Islamic terrorist groups. He was also an associate of Dennis Mahon. In a book written by former German neo-Nazi Ingo Hasselback, which was excerpted in the January 8, 1996, edition of New Yorker, he recalls how Lauck offered connections to American neo-Nazi groups. He wrote, "Through him I later became a pen pal of Tom Metzger, the leader of WAR, the White Aryan Resistance, in southern California, as well as Dennis Mahon of the Ku Klux Klan." After Lauck's arrest by German authorities, German and American neo-Nazi groups found new ways to smuggle material into Germany using Sweden. Dennis Mahon helped to establish a chapter of his "White Aryan Resistance" group in Stockholm, Sweden. The German BKA has confirmed to German ARD television that this pipeline exists. Before Lauck's arrest, in March 1995, Denmark had been used as the smuggling point. Mahon confirmed to ARF television that he brought German neo-Nazis to this country for training. The interview was videotaped. In the days immediately preceding April 19, 1995, when Elohim City was preparing for the execution and funeral of Richard Snell, members of that community placed numerous telephone calls to Mr. Snell's family, the Arkansas Bureau of Prisons, the local undertakers, and a series of phone calls were interspersed to Dennis Mahon's residence. The defense has also acquired information from unimpeachable sources that Dennis Mahon made statements to the effect of, "If a person wanted to know about the bombing, then they should talk with Andy Strassmeir because he knows everything." These same sources inform the defense that Mahon admitted to him that he met James Nichols, the brother of Defendant Terry Nichols, in Michigan. Bob Miles' (a Michigan leader in the White Supremacist movement, now deceased) farm was only 62 miles from James Nichols' farm. 2. Andreas Strassmeir. Andreas Strassmeir is a German national whose father is a well regarded and successful politician in the Christian Democrat Coalition who recently retired as Secretary of State for West Germany, but whose grandfather was a founding member of the German Nazi party. D.E. 3123 at 14. Strassmeir was in this country illegally on an expired visa on April 19, 1995. Id. (Exhibits "F" and "H"). Subsequently, when Strassmeir became the subject of intense media and defense scrutiny, his attorney, Kirk Lyons, a well-known North Carolina lawyer whose principal clients are members of the most violent and extreme wing of American politics, openly boasted that he had "spirited" Strassmeir out of the country through Texas, Mexico and France, telling his supporters that it would be "easier to defend Strassmeir from Germany than from inside a federal detention facility." Id. at 14 (Exhibit "H"). Strassmeir, who was originally presented to the press as a starry-eyed German interested in American military history has now been identified as the Chief of Security at Elohim City, an active participant in a Klan rally in Texas, and having overstayed his visa in this country, having traveled on false identity papers (he was arrested in Oklahoma by State Highway Patrolman Vernon Phillips using the identity of Peter Ward) and a suspect in multiple investigations concerning weapons violations, including making weapons fully automatic. Id. When Strassmeir, who is trained in terrorist tactics, was arrested on February 28, 1992, near Elohim City, he was not only carrying false identity papers, but also statements from foreign bank accounts, and a copy of The Terrorist Handbook. D.E. 2191 at 12. The Terrorist Handbook states that its purpose is "to show the many techniques and methods used by those people in this and other countries who employ terror as a means to political and social goals.... [A]ny lunatic or social deviant could obtain this information, and use it against anyone.... [The publisher] feels that it is important that everyone has some idea of just how easy it is for a terrorist to perform acts of terror; that is the reason for the existence of this publication." The table of contents includes chapters on low-order explosives; high-order explosives, including how to build bombs from fertilizer and fuel oil; ignition devices; advanced uses for explosives; delay devices and explosive containers, including plastic containers. According to a May 19, 1995, newspaper article "witnesses allegedly identified him [Strassmeir] at the end of April [1995] as one of the number of men seen in Junction City, Kansas, when McVeigh was also there during the days leading up to the bombing." D.E. 2191 at 12. One of the witnesses said she contacted the FBI as soon as she was shown a photograph of Strassmeir by a U.S. news organization investigating the Oklahoma affair. Ambrose Evans-Pritchard, the author of this article, and Andrew Gimson, a reporter in the Telegraph's Berlin bureau interviewed Strassmeir a total of five times. Over the course of these interviews, Strassmeir revealed the following: A. Strassmeir was a former Lieutenant in Germany's elite Panzer Grenadiers, similar to our Special Forces, and was trained in military intelligence. B. He first moved to the United States in 1989 "because he was planning to work on a special assignment for the U.S. Justice Department." According to Strassmeir, "It never worked out." C. A retired USAF Colonel, Vince Petruskie was helping Strassmeir at the DEA and Treasury Department, but ultimately nothing came through. Interviews with Petruskie by defense investigators confirm this. D. Having failed to find a job in Washington, Strassmeir went to Texas where he found work at a computer company, and where ". . . he seemingly drifted into the subculture of the Klu [sic] Klux Klan, the Aryan Nations, and the extreme fringes of the Christian right.... He established himself as Chief of Security (at Elohim City) in weapon training, he said." E. Strassmeir "also claimed that he copper bottomed information about the bombing but seemed torn over how much he felt able to impart" to the Telegraph. F. Strassmeir said, "The ATF had an informant inside this operation. They had advanced warning and they bungled it." "What they should have done is made an arrest while the bomb was still being made instead of waiting until the moment for a publicity stunt." Counsel for Defendant McVeigh personally interviewed Ambrose Evans-Pritchard in Washington, D.C., and confirmed each of these points. Mr. Evans-Pritchard represented to counsel that Strassmeir strongly suggested to him that there was an informant at Elohim City and that he was the informant. However, Strassmeir would not expressly admit to it. The government has denied Andreas Strassmeir was an informant employed by the United States. Mr. Evans-Pritchard informed the undersigned counsel that as part of his investigation into Strassmeir's background, Evans-Pritchard interviewed a member of the Texas Light Infantry during the time Strassmeir was in Texas. Certain members of the Texas Light Infantry began to believe that Strassmeir was an ATF informant. Members of the infantry placed a "tail" on Strassmeir and followed him one night. Strassmeir went into a federal building in which was housed a local ATF office. On the doors of this particular federal building, there were combination locks and in order to gain entrance, the person had to punch in the correct combination. Evans-Pritchard reported to counsel that the members of the Texas Light Infantry reported that they watched while Strassmeir punched in the proper code, unlocked the door and went into the building. D.E. 2191 at 14. Counsel has been informed by a reliable source that FBI Director Louis Freeh had invited a subject to accompany him on a trip to Italy and Germany in late 1993, shortly after Mr. Freeh became director of the FBI. The subject did in fact accompany Mr. Freeh first to Italy and then to Germany. Counsel was told that Mr. Freeh specifically invited the subject to be present when Freeh met with German internal security officials and that he agreed on the condition that he would not write anything about what he heard. The subject was present in the meeting in Germany in November 1993 (he thought it could have been October, but was more positive about November), and that the German security officials specifically mentioned Andreas Strassmeir and said that he was "nation hopping" back and forth between the United States and Germany and that he had been associated with neo-Nazis in the United States and that they were very concerned about their activities. Director Freeh replied that the FBI was aware of Strassmeir, and was "monitoring" his activities, but that "because of the First Amendment, there isn't anything we can do." When Strassmeir's potential link to this case was discovered, a reporter interviewed Dennis Mahon about Mahon's friendship with Strassmeir. When questioned whether or not Strassmeir could be an informant, Mahon became visibly upset. As information was traded, Mahon became more convinced that Strassmeir had been providing intelligence on them. Mahon immediately got in touch with a Avery important" man in Germany and requested that he determine if Strassmeir could be an agent for the German government. The reporter heard them state to this individual that if Strassmeir had double-crossed them, "[Matron] wanted Andreas shot in both kneecaps and a confession elicited from him, then hold a 30-minute trial and then execute him." D.E. 2191 at 16. The FBI was immediately informed of the information when defense counsel learned it. Despite government denials to the Court that Strassmeir has never been the subject of the investigation of this case, defense counsel has obtained documents--generated by the government--which indicate that he most assuredly was. One official document, dated January 11, 1996, from an investigative assistant discussed Strassmeir and stated, "Subject is wanted for questioning by FBI, Oklahoma City. Detain and notify [the FBI]," and then giving the phone number, and "refer to FBI case number," and then giving the Oklahoma City bombing case, and then concluding that "subject is possibly armed and may be dangerous." D.E. 3410 (Pretrial Hearing--Sealed--Not Provided to Defendant Nichols, March 10, 1997 at 18). This document was generated months after the defense began requesting information concerning Strassmeir and during the very time that the defense was meeting with the District Court concerning Strassmeir. Id. In addition, the defense has now learned, belatedly through discovery and through Howe herself, that ATF informant Carol Howe was sent back to Elohim City after the bombing in an attempt to learn additional information about Strassmeir, Mahon and others. Also, through discovery, the defense has learned of significant official communication between the United States government and its representatives in Germany concerning additional information on Strassmeir and that Strassmeir has been the subject of interest to the Counterterrorism Division of the Diplomatic Protective Service of the Department of State in a document which we can only describe as specifically bearing the Oklahoma City bombing investigation case number and photographs of Strassmeir. See attached Exhibit "A" and "B" (Under Seal). To say, in light of these documents and others filed under seal and not otherwise identified in this public filing, that Mr. Strassmeir was "never the subject of the investigation" is simply untrue. Strassmeir remained a suspect and subject of the Oklahoma City investigation as demonstrated by the fact that (1) Carol Howe was sent back to Elohim City where Strassmeir lives, (2) cable traffic between an agency of the federal government and its representatives in Germany clearly identify official interest in Strassmeir, (3) his picture and other information was circulated by the Department of State with respect to the Oklahoma City bombing, and (4) in January 1996, he was considered to be "armed and dangerous" and was to be detained for investigation and interview by the FBI. For the government to represent to the Court, as it did that Strassmeir had never been the subject of the investigation is not consistent with the known facts and mislead both the Court and the Defendant. See (Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at 60, 68). Strassmeir not only was a subject of the investigation and a suspect of official interest on two continents, but that interest lasted at least from the middle of April 1995 to January 1996. [CONTINUED IN PART TEN] PART TEN OF EIGHTEEN: 3. Carol Howe and the Bureau of Alchohol [sic], Tobacco and Firearms. The defense investigation has accumulated a significant amount of information aside from discovery which indicates that ATF informant Carol Howe informed her agency handlers, the Bureau of Alcohol, Tobacco, and Firearms, prior to April 19, 1995, that various residents of Elohim City were planning an attack on Federal Buildings which included the Alfred P. Murrah Federal Building in Oklahoma City. The defense believes that the government received this information, and in fact followed up on it, in the early morning hours of April 19, 1995. D.E. 3313 at 1. Previous representations to the Court by government counsel that Mr. Strassmeir "was never a subject of the investigation"[11] are inaccurate and misleading at worse and economical with the truth at best as outlined above. --------------------------------------- FOOTNOTES: [11] See Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at 60, 68. --------------------------------------- The government in fact conducted an investigation of Mr. Strassmeir and Mr. Mahon in the days immediately following the Oklahoma City bombing, and then failed to follow through on the investigation, not because it was unproductive, but because to pursue the investigation would in effect lead back to the government's knowledge of prior warning. Defense counsel is of the opinion that the government has engaged in a willful and knowing coverup of information supplied to it by its informant. As a threshold matter, counsel for Mr. McVeigh have requested, in writing, that the government provide information concerning Dennis Mahon and Andreas Strassmeir since February 15, 1996. See D.E. 1923 Exhibit "N" (letter to Beth Wilkinson requesting specific information concerning various individuals, but specifically naming Dennis Mahon and Andreas Strassmeir). On March 8, 1996, Mr. McVeigh filed a discovery motion, seeking specifically intelligence information from the federal government and specifically mentioning Dennis Mahon and Andreas Strassmeir. See D.E. 1079 at 7 18, 19. Dissatisfied with the government's responses, counsel filed a Motion to Compel Production of Discovery Material on August 27, 1996, again, specifically referencing Dennis Mahon and Andreas Strassmeir. See D.E. 1921 Exhibit "C." On October 10, 1996, counsel for Mr. McVeigh amended the Motion to Compel Production of Discovery Material, reiterating specific requests for information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2265 at 34. Most recently, counsel addressed outstanding discovery requests in a Supplemental Motion to Compel the Production of Discovery Information, reiterating the previous specific requests for information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2768 at 6-7. In a nearly one-foot-thick pleading filed October 18, 1996, the government responded to McVeigh's Motion to Compel the Production of Classified Information, specifically including information the government possessed concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2331. Absent from that pleading, and also from the information responsive to defense requests for information concerning Dennis Mahon and Andreas Strassmeir, was Insert No. E-427, a report of interview by the AFT, which concerned a confidential ATF source named "Carol." See D.E. 3313 (Exhibit "D"). Counsel for Mr. McVeigh has now learned that "Carol" is actually Carol Howe, an ATF informant at Elohim City, who had an intimate relationship with Dennis Mahon, who knew Andreas Strassmeir, and whom ATF Agent Angela Finley interviewed on April 21, 1995--two days after the bombing. This particular Insert was brought to our attention by government counsel during the in-chambers conference of January 29, 1997. See Reporter's Transcription (Scheduling and Rule 17.1 Conference-Sealed) at 65, no docket number assigned [hereinafter "Tr. _"]). Government counsel indicated to the district court that this Insert had been disclosed to the defense on January 23, 1996, but candidly admitted that the government did not list this Insert in its prior submissions to the district court because the government could not find it through a computer search. Id. at 66. The Defendant does not credit this explanation, coming as it does after so many false, misleading representations from a former intelligence officer now on the prosecution team. The defense was unable to locate this "non-pertinent" Insert using a computer because all major search terms contained in the Insert were misspelled. Elohim City was misspelled or misidentified, as was Mahon, Strassmeir, the Rev. Robert Millar, and, in addition, Carol Howe was not identified in the Insert at all. Agent Finley's source was identified as a "confidential source" named "Carol"--no last name given. Thus, it is not even clear from the Insert that "Carol" was the confidential source's real name.[l2] Elohim City was spelled "Elohm [sic] City," Dennis Mahon was spelled "Dennis Mehaun," Reverend Robert Millar was spelled "Bob Lamar'" and Andy Strassmeir was spelled "Andy Strasmeyer." -------------------------------------- FOOTNOTES: [12] Defense counsel is very suspicious of the multiple misspellings in this FBI Insert. The Insert was generated as a result of an interview of Carol Howe in Oklahoma City on April 21, 1995 conducted by Special Agent of the FBI, James R. Blanchard, II, and Agent of the ATF, Angela Finley. It is difficult to conceive how Agent Finley could participate in an interview which would lead to the drafting of a memorandum in which every material name (Matron, Strassmeir, Millar, and Elohim City) would be misspelled because, according to Ms. Howe, Agent Finley was her "case handler" and specifically knew that Howe's assignment was to infiltrate Elohim City and become acquainted with Strassmeir, Mahon, Millar and others. If the Insert was prepared without it being reviewed by the person who also participated in the interview, another law enforcement officer, the process was incredibly sloppy and unprofessional. If she did review the Insert, the more likely scenario, she would instantly have known that all of the names were misspelled. Defense counsel believes they purposefully were misspelled. It is difficult to imagine how a Special Agent of the FBI can misspell "Matron" and "Miller." The fact that prosecutors themselves could not find the insert is not surprising. There may have been a deliberate effort to deceive them and keep from them information, which, in their professional responsibilities, they would know had been turned over to the defense. This was the danger of the so-called "open file" discovery. Everything was given to the defense, the government argued, so thus if anything turned up which embarrassed the government's case, it could always claim it had been "furnished" to the defense (as indeed government counsel often did), but if it is furnished amidst thousands and tens of thousands of sheets of paper so that it cannot even be pulled up on a computer search, then the production is meaningless. The names of Strassmeir and Mahon are hardly strangers to the discovery disputes or to the government. Moreover, it emphasizes the need for court intervention because not even the prosecution can protect itself against efforts of either the FBI or the ATF to obscure and hide information by misidentification. -------------------------------------- According to government counsel and interviews with other parties, Carol Howe contacted Agent Finley, her ATF "handler" (see Tr. at 67) and informed the ATF that she had been at the Elohim City compound and may have seen "Unsub 1" and "Unsub 2". D.E. 3123 (Exhibit "A" at 1). Carol Howe informed Agent Finley on April 21, 1995, that she learned about Elohim City when she called a racist hotline in May, 1994 and met the hotline operator/owner Dennis Mahon who would visit Elohim City to engage in paramilitary training. She also told Agent Finley that the security officer at Elohim City was Andy Strassmeir, whom she described as an illegal alien from Germany and a former West German infantry officer. Id. Although Strassmeir has a German accent, he speaks English fluently, and according to Ms. Howe, Strassmeir talked frequently about direct action against the U.S. government, he trained in weaponry, and he discussed assassinations, bombings and mass shootings. She also described the residents at Elohim City as ultra-militant white separatists where required reading includes Mien Kampf and The Turner Diaries. Mahon discussed with Carol Howe "targeting federal installations for destruction through bombings, such as the IRS Building, the Tulsa Federal Building, and the Oklahoma City Federal Building." Id. (Exhibit "A" at 2). In fact, Mahon not only discussed the destruction of the federal building in Oklahoma City by bombing, according to Ms. Howe, Mahon and Strassmeir took at least three trips to Oklahoma City in November and December 1994 and again in February, 1995--and Carol Howe accompanied them during the December 1994 trip. She has repeated these facts to several reporters. Ms. Howe reported all of this information to the FBI[13] the day after the bombing, and yet government counsel still insists that Andy Strassmeir was "never a subject of the investigation" (see Tr. at 68), but curiously does not make the same statement concerning Dennis Mahon. -------------------------------------- FOOTNOTES: [13] The Bureau of Alcohol, Tobacco, and Firearms was aware of this information prior to April 19, 1995. Carol Howe has flatly stated the information was provided to the ATF by her and she is satisfied she gave them enough information to alert them to a possible threat. After her FBI interview on April 21, 1995, Howe was reemployed as an ATF informant and sent back to Elohim City. -------------------------------------- But the one thing that is clear is that Carol Howe was an ATF informant feeding the ATF information concerning Elohim City, Dennis Mahon and Andreas Strassmeir both before and after the bombing of the Murrah Building. Ms. Howe was the one-time girlfriend of a person named James Viefhaus. Viefhaus has been indicted by a Federal Grand Jury in Tulsa, Oklahoma for threatening to destroy buildings by means of an explosive in 15 cities across the United States, as well as knowingly possessing an unregistered destructive device. D.E. 3123 (Exhibit "B"). The Viefhaus case has received considerable media coverage in the Tulsa area. Id. (Exhibit "C"). Viefhaus was arrested December 13, 1996, after federal authorities connected him to a recorded message, traced to his residence in Tulsa, which reportedly stated that the bombing of 15 U.S. cities would begin December 15, 1996, unless action was taken against the federal government by "white warriors" before that date. U.S. Magistrate Frank H. McCarthy "expressed concern" about investigative reports that Viefhaus has compiled lists of buildings to be bombed and that Viefhaus possessed pictures of at least two buildings in Tulsa that house federal employees. Id. FBI agents claimed that they found ammonium nitrate and other chemicals that could be used in bombing-making in Viefhaus' home and that the search of Viefhaus' home including written instructions for bomb-making and references to the lengths of pipes, caps, screws and fuses, as well as black powder, accellerants, and various loaded firearms. Id. (Exhibit "C" at 3). In addition to this information, the search of his house also uncovered a how-to book about constructing homemade weapons as well as a photograph of Viefhaus and his "housemate" holding weapons and wearing swastikas on their clothing. The message that the federal agents have connected to Viefhaus is believed to be affiliated with the National Socialist Alliance of Oklahoma, and the speaker on the tape had reportedly endorsed the bombing of the Murrah building in Oklahoma City. Carol Howe is the person described as Viefhaus' "housemate" and is the person in the picture with Viefhaus where the both of them are wearing swastikas on their clothing. For his part, Mahon has stated to the press that he does not believe that Howe and Viefhaus are guilty of anything, that he knows these two persons, and "they gave me their word that they were above ground and totally legal. They stand up for White Aryan beliefs." Id. (Exhibit "C" at 9). Mahon does indeed know both of these persons. Carol Howe had actually filed a petition in open court in Tulsa, Oklahoma, for a protective order against Dennis Mahon on August 23, 1994.[14] Id. (Exhibit "D"). ----------------------------------- FOOTNOTES: [14] The petition makes reference to the "White Aryan Resistance of which Dennis is the head in Oklahoma." See D.E. 3313 (Exhibit "B"). ----------------------------------- The basis for the protective order was threatening phone calls in which Mahon told Howe that he would "take steps to neutralize" her because he perceived that she had turned on the movement, meaning the agenda of the White Aryan Resistance of which Mahon is in charge in Oklahoma. Counsel for Mr. McVeigh has contacted counsel for Mr. Viefhaus, Craig Bryant, Assistant Federal Public Defender for the Northern and Eastern Districts of Oklahoma, and Mr. Bryant has in turn spoken with Ms. Howe at the federal courthouse in Tulsa. According to Mr. Bryant, Ms. Howe is the girlfriend of James Viefhaus, and asked to speak with Mr. Bryant because of his concern over the fact that she had not been indicted by the grand jury, but James Viefhaus, her boyfriend, had been indicted. Mr. Bryant stated that the prosecutor in the case, Ken Snoke, stated in open court that shortly after James Viefhaus' arrest, the government felt Ms. Howe was equally culpable--yet she was not indicted. Id. (Exhibit "E"). Ms. Howe told Mr. Bryant that the reason she was not indicted because she served as a confidential informant for the ATF for several months in 1995, and that the information she provided to the ATF concerned an investigation of Dennis Mahon. Ms. Howe believes that the reason she was not indicted along with her boyfriend was that the government does not want her prior work as a confidential informant for the ATF to become public knowledge. Carol Howe was subsequently indicted on March 11, 1997, in a superseding Indictment in the United States District Court for the Northern District of Oklahoma, No. 97-CR-05-C. The defense believes that an Indictment was obtained against Carol Howe for the purposes of "leverage" against her in order to keep her mouth shut about what she knows about the activities of Mahon and Strassmeir. The information she possesses suggests strongly that the ATF, the most hapless and beleaguered of the federal law enforcement agencies, may have had notice that militant right wing radicals had targeted the Alfred P. Murrah building for destruction and botched the interception of the plan in their finest Waco tradition. The institutional repercussions for ATF if Carol Howe is telling the truth could be the death knell of that organization. Information corroborative of Carol Howe will be provided, if at all, only through the most coercive judicial means. When counsel filed a Motion to Compel Production of a variety of tangible objects relating to statements made by Carol Howe, an ATF informant, concerning the possibility of a prior warning being given to the government of a possible terrorist attack on federal buildings in Oklahoma, including the Alfred P. Murrah Federal Building (D.E. 3123), government counsel asked defense counsel to hold the matter in abeyance pending review of documents that would be submitted to defense counsel concerning Carol Howe, and the district court then asked that counsel advise the court whether production was sufficient or the motion was moot. Counsel thereafter advised the district court that the issue was not moot and that the order to produce should issue. D.E. 3313 at 2. Information furnished to couns