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circumstances, whether the defendant’s “will has been overborne and his capacity for self-
determination critically impaired.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2047.

In examining the totality of the circumstances surrounding a confession, the Court
considers the conduct of the interrogator, the conditions of the interrogation and the
characteristics of the accused. First, and most importantly, coercive activity by an interrogator is

io

a “necessary predicate to the finding that a confession is not ‘voluntary.’” Colorado v. Connelly,
479 USS. 157, 167, 107 S.Ct, 515, 522, 93 L.Ed.2d 473 (1986). Absent some showing of
“overreaching” that is “causally related to the confession, there is simply no basis for concluding
that any state actor has deprived a criminal defendant of due process of law.” /d. An interrogator
can overreach through both “mental as well as physical” coercion. Fulminante, 499 U.S. at 287,
111 S.Ct. at 1253 (quotations omitted). An interrogation accompanied by physical violence is
presumptively involuntary. See Holland v. McGinnis, 963 F.2d 1044, 1050 (7° Cir. 1992). See
also Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682 (1936) (stating
that due process violated when violence used to coerce confession). In addition, psychological
coercion resulting from offers of leniency, threats of punishment, the deprivation of sleep and
food, or credible threats of violence by others may render a confession involuntary. See, e.g.,
Fulminante, 499 U.S. at 287-88, 111 S.Ct. at 1252-53 (holding confession involuntary based on
credible threat of violence exploited by confederate prisoner); Haynes v. Washington, 373 U.S.
503, 514-15, 83 S.Ct. 1336, 1343-44, 10 L-Ed.2d 513 (1963) (holding confession involuntary

based on threats of “incommunicado detention”); Andersen v. Thieret, 903 F.2d 526, 530 (7" Cir.

1990) (stating that “[f]ood, sleep, and water deprivation and a mentally coercive interrogation”

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took the liberty to speak to me in such a style.” (Tr. at 1133.) Further, Salah said “I am in charge
tonight.” (Tr. at 1133; Gov. Ex. Tape 2 English Translation SH at 27.) In response, Nadav
responded: “I am here until you tell me ‘you can go home.’” (Gov. Ex. Tape 2 English
Translation SH at 27.) Again, when Nadav inquired whether Salah wanted to save a certain topic
for Sunday, Salah said, “No, no, I want to finish; and believe me, I won’t be talking after this.”
(Tr. at 1202; Gov. Ex. Tape 5 English Translation at 36-37.) Further, Salah said “forget about
interrogation after this.” (Tr. at 1203; Gov. Ex. Tape 5 English Translation at 36-37.) Salah later
said “This is my last session I will talk to you.” (Gov. Ex. Tape 3 English Translation at 57.)
Nadav commented, “We’re friends. How come you tell me such a thing?” (Tr. at 1180.)
Salah’s insistence on continuing the session and bold statements to Nadav are not those of
someone whose will is overborne or who is being tortured into speaking.

Additionally, Salah’s interactions with Nadav also evidence his state of mind on March
18, 1993. In discussing whether information that Salah provided had led to the arrest of anyone,
Salah said to Nadav: “But please let our meeting ... let’s benefit from one another. So we know
each other for the future. So if I ask you questions, don’t give an intelligence answer. Give me
an answer on a personal level.” (Tr. at 1148-50; Gov. Ex. Tape 2 English Translation SH at 63.)
As Nadav testified, this exchange was another example of Salah attempting to obtain information
from Nadav. (Tr. at 1149-50.)

The tapes also reveal that Nadav repeatedly offered Salah drinks. (See, e.g., Tr. at 1178-
79; Gov. Exs. Tape 1 English Translation SH at 45-46; Tape 2 English Translation SH at 56;
Tape 3 English Translation SH at 13, 54; Gov. Ex. Tape 4 English Translation SH at 55; Tr. at

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told Nadav that he had been physically abused. (/d. at 1223.) Nadav testified that he never
personally photographed or threatened to photograph Salah without his clothes on, and he was
not aware of anyone else doing so or making such threats. (/d. at 1120.) Neither Nadav nor
anyone else to his knowledge ever put Defendant into a cell or room with freezing temperatures.
(Id. at 1220.) Nadav added that Defendant Salah could adjust the thermostat in the interrogation
room himself if he wanted to, (/d. at 1533.)

Further, Nadav strongly denied ever putting a hood over Salah’s head, (id. at 1483, 1448-
52), or placing him in a cold or hot room. (Jd. at 1483.) He testified that he never observed
Salah’s head covered with a hood, and never asked anyone to cover Salah’s head with a hood.
Similarly, Nadav testified that no other ISA interrogators told Nadav that they had covered
Salah’s head with a hood. (id. at 1448-52.) Nadav also denied that he or anyone else threatened
to blind or poison Defendant Salah if he did not confess or cooperate with the ISA. (/d. at 1223.)

Regarding Salah’s access to an attorney, Nadav testified that Israeli law does not provide
a detainee with immediate access to an attomey. (/d. at 1528-29.) In Defendant Salah’s case,
Haim had the authority to determine, within the time constraints provided by law, when Salah
could see an attorney. (/d. at 1529.) Although Nadav could not remember the exact time frame,
he testified that Salah was permitted access to an attorney before the ISA had to give him such

access under the law. (Jd.)

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large part. The Court further finds that the government has not met its burden of proving
Defendant’s purported statements to Officer Suleiman on January 27, 1993 and February 21,
1993 were voluntary, and therefore, the Court grants Defendant’s motion as to these statements.
The Court’s reasoning is set forth in detail below.
BACKGROUND

I. Defendant’s Arrest in Israel

On approximately January 25, 1993, Defendant Salah was arrested by Israeli authorities at
a checkpoint between the Gaza Strip and Israel'. From Salah’s arrest through March 1993, Salah
allegedly made various incriminating statements — both orally and in writing — to Israeli
authorities while he remained in their custody. Although he made statements through May 18,
1993, his questioning was essentially completed two months earlier on March 18, 1993. Salah
allegedly made such statements to agents of the Israel Security Agency (“ISA”) — also known as
the General Security Service (“GSS”) and “Shin Bet” ~ the Israeli National Police (“INP”), and
others working for these Israeli authorities. The government seeks to admit these statements

during trial.

' The testimony during the hearing reflected that the Israeli authorities arrested Salah at a
Gaza checkpoint. According to the American Consulate General documents, both Salah and his
brother had reported that the authorities arrested Salah at a YMCA, but “YMCA employees have
indicated that Salah was not present at the “Y’ when Israeli National Police and Israel General
Security Services Officers arrived there with a court order to conduct a search of his room.”
(Gov. Ex. Consulate Documents at 009; Def. Ex. Salah Con. Docs. at 13, 16, 44.) Even
Defendant Salah avers in his affidavit that the Israeli soldiers arrested him at a Gaza checkpoint.

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Translation at 19.) Salah promised Nadav that “if there was any information that was not
included in the handwritten statement, he will add it.” (d. at 1115.)

b. The Transcript Reveals A Friendly, Co-operative Relationship
Between Nadav and Salah

Salah characterized his relationship with Nadav on March 18, 1993. He told Nadav that
he agreed to speak with him about his handwritten statement because “what is encouraging me is
that I trust you personally.” (Gov. Ex. Tape | English Translation SH at 3, 7-8; Tr. at 1106-07.)
Salah later adds, “You are my enemy, but you are my friend.” (Tr. at 1114; Gov. Ex. Tape 1
English Translation at 25.) When asked to explain his understanding of Salah’s statement,
Nadav testified that Salah “understood that, after all, I work for the ISA; nevertheless, the
relationship between us is based on friendship.” (Tr. at 1114-15.) Salah even told Nadav, “let’s
benefit from one another so we know each other for the future.” (/d. at 1149.)

During the March 18, 1993 session, Salah refused to answer certain questions posed by
Nadav. (See, e.g., Tr. at 1204-06.) Salah told Nadav that he did not want to answer certain
questions because he did not want to “lie” to him. (id. at 1144-45; see also Gov. Ex. Tape 5
English Translation SH at 47-48.) In response, Nadav never threatened him or treated him
violently after such refusals. Salah also admitted that he had previously given the ISA false
information.

Furthermore, the nature of Nadav’s and Salah’s relationship is supported by the joking
and bantering captured on the tapes. At one point during the session, Salah told Nadav: “You

should be afraid of me.” (Tr. at 1141; Gov. Ex. Tape 2 English Translation SH at 42.) When

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in lieu of the disclosure of such specific classified information [ordered disclosed by the court],
the court order —- (A) the substitution for such classified information of a statement admitting
relevant facts that the specific classified information would tend to prove; or (B) the substitution
for such classified information of a summary of the specific classified information.” 18 U.S.C.
App. 3, § 6(c). If a court determines that “the statement or summary will provide the defendant
with substantially the same ability to make his defense as would disclosure of the specific
classified information,” the court shall grant the United States’ motion. Jd.
2. Ex Parte CYPA Portions of the Suppression Hearing

Consistent with the CIPA principles set forth above, the Court conducted limited portions
of the suppression hearing ex parte and in camera, Here, the “suitable action” for ensuring
Defendant’s right to a fair suppression hearing and protecting the classified information at issue
was to apply the Section 4 framework to both the testimony and documents at issue. See
LaRouche Campaign, 695 F.Supp. at 1287-88 (stating that a “manifest objective of CIPA is that
classified information should not be disclosed to anyone needlessly” and that “when classified
information is not yet in the hands of defendants and their attorneys and they are making
demands for disclosure, the court must consider whether defendants’ rights can be fully protected
by an alternative procedure that does not result in disclosure of classified information.”).

Pursuant to CIPA, the government presented limited testimony to the Court and gave the
Court access to certain documents outside the presence of Defendant Salah and his counsel.

Specifically, during the ex parte CIPA portion of the hearing,

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the government’s Stipulations to the benefit of the government.

Defendant Salah, however, asks the Court to draw far more adverse inferences than
appropriate. Salah asks the Court, for example, to draw adverse inferences and suppress his
statements because the government did not call all of the ISA interrogators who questioned him
from January 25, 1993 through March 18, 1993. The Court declines to do so. The government
bears the burden of proving the voluntariness of Defendant’s statements, and it can decide how it
intends to meet that burden.

Defendant also seeks an adverse inference against the government for failing to call any
witnesses from the United States Consulate in Israel, including Majeed Razek. Because hearsay
evidence is appropriate at suppression hearings, the government properly admitted the statements
of Mr. Razek and the consulate documents through FBI Special Agent Priestap. See Raddatz,
447 U.S. at 679, 100 S.Ct. at 2414, Even Defendant admitted the hearsay documents, See Def.
Ex. Salah Con. Docs.

Defendant asks the Court to draw an inference from the government’s Stipulation No. 1
that the ISA could - and did -- use all the methods set forth in the Landau Commission's Annex.
The Court declines to made this broad of an inference.

REDACTED PURSUANT TO CIPA

Defendant also makes numerous arguments regarding discovery disputes, and asserts that
the Court should draw adverse inferences from these disputes. The Court has spent hours

addressing discovery issues in this case, and will not repeat its detailed holdings in this opinion.

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The agreement, written by Salah, was signed by Nadav, Haim and Defendant Salah. (Tr. at 392.)
Under the terms of the written agreement, if Salah provided the ISA with information of the
burial site and the ISA recovered the body and confirmed that it was the body of Sa’doan, Israel
would release female prisoners who had not engaged in military operations or activity and return
the approximate $96,000 in cash they had seized from Salah at the time of his arrest. (/d, at 396-
99.) Haim further testified that he and Salah had a “gentleman’s agreement” that the ISA would
release Salah and send him home if they located the body of Sa’doan. (/d. at 397-98.) He added
that “Muhammad Salah did not want to write it in the agreement. He said that he understood, he
got the understanding that he didn’t want it written. That when the Hamas people found out
about it, they wouldn’t think that he did it in order to release himself.” (/d. at 398.)

Salah told Haim that he had initially obtained the map in London, memorized it, then sent
it to his home in the United States. (/d. at 402-03.) For security purposes, Salah did not want to
travel to Israel with the map. (/d. at 403.) Haim testified that the ISA permitted Salah to call his
wife in the United States to attempt to obtain the map. (/d. at 402-03.) He further testified that
according to Salah, his wife informed him that she had “destroyed a lot of things” after she
learned that the Israeli authorities had arrested Salah. (/d. at 403.) Accordingly, Salah never
obtained the map from his wife. (/d.) Instead, Haim testified that Salah drew a map from
memory. (/d. at 404; Gov. Ex. Salah Handwritten Map 1.) Salah also accompanied Haim,
Nadav, and others to the location drawn on the map to assist them in locating the body. (Tr. at
404-410, 413-415.) Although the Israeli authorities did not locate the body based on Salah’s
map, when they ultimately located the body in July 1996, Haim testified that he realized Salah

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PUBLIC VERSION

IV. Items Seized from Defendant Salah
Defendant also seeks to suppress the items the Israeli authorities seized from him,
including his address book. The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend IV. The Fourth Amendment prevents the government
from conducting unreasonable searches and seizures. The exclusionary rule “is a judicially
created remedy” precluding the use of evidence obtained in violation of the Fourth Amendment
against a defendant who was the victim of such a violation. United States v. Calandra, 414 U.S.
338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561 (1974) (citations omitted). As the
Supreme Court instructs:
[T]he rule’s prime purpose is to deter future unlawful police conduct and thereby
effectuate the guarantee of the Fourth Amendment against unreasonable searches and
seizures: The rule is calculated to prevent, not to repair. Its purpose is to deter-to
compel respect for the constitutional guaranty in the only effectively available way-
by removing the incentive to disregard it.

Id. (quotations omitted).

As the Seventh Circuit and other courts have held, the Fourth Amendment and the
exclusionary rule generally do not apply to acts of foreign officials on foreign soil. See United
States v. Marzano, 537 F.2d 257, 269-70 (7" Cir. 1976); United States v. DeRewal, 10 F.3d 100,
102 (3d Cir. 1993) (district court applied correct legal standard that “[n]either the Fourth
Amendment nor the exclusionary rule applies to searches conducted in foreign countries by
foreign officials”); United States v. Barona, 56 F.3d 1087, 1090 (9" Cir. 1995). Two recognized
exceptions apply to this general rule: 1) where a joint venture with foreign officials exists; and 2)

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CONCLUSION

As stated above, the Court has analyzed and weighed the testimony and other evidence
adduced during the suppression hearing, as well as the credibility and demeanor of testifying
witnesses. Based on its evaluation of the totality of the circumstances, the Court finds that the
Government has satisfied its burden of proving by a preponderance of the evidence that
Defendant Salah voluntarily made all of the statements at issue here, with the exception of
Defendant’s purported statements to Officer Suleiman on January 27, 1993 and February 21,
1993. The Court further finds that no joint venture existed between the United States and Israel,
and the law enforcement conduct on the record before the Court does not shock the conscience.
Accordingly, the Court grants Defendant Salah’s motion to suppress in part to the extent it relates
to the January 27, 1993 and February 21, 1993 statements, and denies it in part to the extent it

relates to other statements.

Dated: June 8, 2006 ENTERED

Xa.

United States District Judge

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testimonial privilege, including the privilege against compulsory self-incrimination

guaranteed by the Constitution itself. We have never given the Sixth Amendment such a

construction, and we decline to do so now.
Id.at 314, 87 S.Ct. at 1064.

The D.C. Circuit recently rejected a similar claim of the denial of a Sixth Amendment
violation in the context of a CIPA hearing. Mejia, F.3d__, 2006 WL 1506853. In Mejia, the
defendant argued that his Sixth Amendment right to confront witnesses had been violated
because he did not have access to materials governed by CIPA and did not have the opportunity
to participate “in the decision as to whether ... the material could be disclosed.” Jd. at *19
(quotations omitted). The court held that the Sixth Amendment right is a “trial right,” and “does
not create a right to pretrial discovery.” Jd. (quotations omitted).

Given the protections afforded to Defendant, the extremely limited nature of the ex parte
testimony and the totality of the circumstances in this case, neither Defendant’s due process
rights nor his confrontation rights were violated here. Significantly, Defendant’s counsel
extensively cross examined the ISA witnesses during the suppression hearing. In fact, counsel
rigorously cross examined each witness for more than eleven hours of pure testimony. The Court
allowed Defendant to pursue extensive cross examination in every area except the limited areas
that would elicit classified information and some irrelevant areas. Defendant had more than
ample opportunity to test these witnesses’ recollections, challenge their credibility, attempt to
poke holes in their versions of the events, and confront them face to face. As in McCray, “[e]Jach
[witness] was subjected to searching cross-examination.” 386 U.S. at 313, 87 S.Ct. at 1063.
Moreover, as recognized by the Seventh Circuit, “[t]he confrontation clause, however, generally

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1130-31; see also id. at 1140-42, 1193-94, 1204-05.) Nadav said that he offered Salah drinks
throughout the session, and never denied him the use of the bathroom. (/d. at 1124-25, 1163-65,
1198-99.)

Nadav also testified regarding several of Salah’s statements to Nadav. Regarding his
release, Salah told Nadav “it all depends on how you release me. It depends on how I get out. If
I leave here with the state of mind that you have screwed me, I will leave here seeking vengeance
and I will start all over again. Do you want better than this honesty.” (/d. at 1112.) Nadav
testified that Salah added that if the Israeli authorities gave him a severe penalty, he would
“dedicate [himself] to Palestinian action ... and train a hundred” soldiers. (/d. at 1113.)

During the session, ISA Interrogator Benny briefly came into the room. (Jd. at 1172-74.)
Salah did not complain to Nadav about Benny once he left the room. Nadav testified that Salah
joked with Benny. (/d, at 1173-74.)

7. ISA Guidelines

Nadav also testified that he followed the ISA’s internal guidelines when questioning
detainees. (fd. at 1341, 1658.) When he began working for the ISA, they provided him with
these written guidelines, (Jd. at 1343.)

(on Israel National Police Officer Hezi Eliyahu

Officer Eliyahu, a senior investigator with the Israeli police, testified at the hearing
regarding his interaction with Defendant on January 30, 1993. Officer Eliyahu explained that the
“Tsraeli police [department] only works under its own orders, under its own rules. We do not

work under the orders of the ISA. We are a totally independent unit.” (Id. at 1801.)
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PUBLIC VERSION

1. January 27, 1993 and February 21, 1993 Statements to Israeli
National Police Officer Meron Suleiman

The government seeks to admit both a January 27, 1993 written statement and a February
21, 1993 written statement, both allegedly given by Defendant. (Gov. Exs. 1-27-93 Salah
Statement & 2-21-93 Salah Statement.) The government contends that Defendant Salah gave
both of these written statements to INP Officer Suleiman. Both of these statements are written in
Hebrew. The government did not call Officer Suleiman as a witness at the hearing to testify
regarding the circumstances surrounding these statements. Further, the February 21, 1993
statement does not contain Salah’s signature.
a. January 27, 1993 Statement
INS Interrogator Haim testified regarding both of these statements. (Tr. at 359-362.) He
testified that he recognized the signatures of Suleiman and Salah on the January 27, 1993
statement, and that Suleiman gave Haim the document after he obtained Salah’s statement. (Jd.
at 360.) Haim did not, however, provide any testimony regarding the circumstances of how
Suleiman obtained this statement. Significantly, the government did not present any evidence as
to whether Suleiman translated the Hebrew version to Defendant Salah before Salah signed the
document.
b. February 21, 1993 Statement
Haim testified that on February 21, 1993, he contacted Israeli National Police to take a
written statement from Salah. (Jd. at 464-477.) Suleiman came to the interrogation facility to

take the statement. (/d. at 465.) After Suleiman met with Salah, he reported to Haim that Salah

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being interrogated. (/d. at 1851-52.) He further stated that older individuals are not given special
treatment either. (/d. at 1853.)

When questioned regarding his opinion regarding terrorists acts, Mr. Kuttab said that an
attack on a military target is typically not an act of terrorism. (/d. at 1905-06.) He confirmed his
belief that an attack against a military target such as the U.S.S. Cole is not an act of terrorism
because “under traditional laws of war and customary international law, such politically
motivated actions — however, foolish, unwise or injurious — must not be confused with attacks on
clearly civilian targets.” (/d, at 1906.)

F, Yuval Ginbar

Yuval Ginbar is a legal advisor for Amnesty International who currently resides in
London, England. Ginbar previously worked at B’Tselem, the Israeli Information Center for
Human Rights in the Occupied Territories. During the mid 1990s, Mr. Ginbar researched and
presented a dissertation “on the subject of Israel’s treatment of its detainees and specifically its
interrogation methods or the GSS, the General Security Service interrogation methods.” (/d. at
2054.) As part of his research, Mr. Ginbar took testimony from former Palestinian detainees who
had been interrogated by the ISA, and has written or co-authored various articles on the subject.
(See Def. Exs. 13, 14, 15, 16.)

Mr. Ginbar testified that he has personally taken testimony from “dozens” of former
Palestinian security detainees and reviewed testimonies taken of such detainees by his co-
workers and others. (Tr. at 2060-62, 2064, 2066.) He also has reviewed petitions made to the

Israeli Supreme Court by Palestinian security detainees.

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PUBLIC VERSION

States. v. Abu Ali, 395 F.Supp.2d 338, 381 (E.D. Va. 2005). “[T]Jhe existence of the exception
itself is based on the assumption that Miranda must apply to any portion of an overseas
interrogation that is, in fact or form, conducted by U.S. law enforcement.” Bin Laden, 132
F.Supp.2d at 187 (lack of Miranda warnings provided by foreign officials “will still lead to
suppression if U.S. law enforcement themselves actively participated in the questioning”).

Second, even where a defendant voluntarily makes a statement, due process is violated
where “the foreign officers’ conduct is so egregious that it ‘shocks the conscience’ of the
American court.” United States v. Angulo-Hurtado, 165 F.Supp.2d 1363, 1370 (N.D. Ga. 2001)
(citing United States v. Rosenthal, 793 F.2d 1214, 1230-31 (11" Cir. 1986)). See also Abu Ali,
395 F.Supp.2d at 380. Any statements made as a result of such conduct are inadmissible in an
American court. United States v. Maturo, 982 F.2d 57, 60-61 (2d Cir. 1992).
IL Voluntariness of Defendant’s Statements

As noted above, if the government has proven by a preponderance of the evidence that
Defendant Salah voluntarily made the statements at issue, the Court will admit them at trial
unless: (1) they were the product of a joint venture and no Miranda warnings were given to
Defendant; or (2) the interrogator’s conduct “shocks the conscience.” The Court sets forth below
its findings of fact relevant to this determination.

A. Classified Portions of the Hearing

Before turning to the findings of fact, however, the Court will first address the impact of
certain classified information that the government provided in camera, ex parte to the Court

during the course of the hearing.

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Agent Preistap interviewed Majed Razek in September 2002 regarding his prior discussions with
Defendant Salah. (/d.) Mr. Razek worked in the arrest department at the American Consulate
where he set up consular visits with American citizens whom the Israelis had arrested. (/d. at
1929.)

Mr. Razek told Agent Priestap that he had several meetings with Defendant Salah after
the Israeli authorities arrested him in 1993 and while he remained in their custody. Mr. Razek
documented each of his visits with Defendant Salah. (/d. at 1929-30.) Specifically, he met with
Salah on January 31, 1993, February 2, 1993, and February 12, 1993. Agent Priestap testified
that Mr. Razek told him that “he did not observe any signs of mistreatment during his interaction
with Mr. Salah.” (/d. at 1931.) Mr. Razek described Salah as “very intelligent.” (/d. at 1936.)

Mr. Razek first met with Salah at a holding facility where the Israelis had him in custody
on January 31, 1993, (/d. at 1931-32.) Mr. Razek told Agent Priestap that Salah told him during
that first meeting that he had not been mistreated and he had no complaints regarding his
“holding.” (/d. at 1932.) His only complaint was that the Israelis should not arrest American
citizens such as himself. (/d.) On February 2, 1993, Mr. Razek and another consulate official
met with Salah in an Israeli courtroom prior to Salah’s hearing. (/d. at 1932-33.) Although Mr.
Razek informed Agent Priestap that they did not have privacy in the courtroom, and thus
Defendant may not have felt comfortable reporting any mistreatment to him, Salah did not
complain of any mistreatment at this time. (/d. at 1934.) Furthermore, Mr. Razek told Agent
Priestap that Salah was acting in a friendly manner and smiling during this court appearance. (Id.

at 1933-34.)

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PUBLIC VERSION

classified information ex parte. See, e.g., United States v. Mejia, No. 02-3067, __ F.3d __, 2006
WL 1506853 (D.C. Cir. June 2, 2006); United States v. LaRouche Campaign, 695 F.Supp. 1282,
1284 (D. Mass. 1988) (holding that government properly invoked the ex parte procedures in
Section 4 of CIPA where defendants did not possess the classified information at issue).

Courts have held that the CIPA procedures apply to testimony, as well as documents.
See, e.g., United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9" Cir. 1998); United States
y. Lee, 90 F.Supp.2d 1324, 1326 n.1 (D.N.M. 2000); United States v. North, 708 F. Supp. 399,
399-400 (D.D.C. 1988). Even if Section 4 does not specifically apply to testimony, Section 8(c)
of CIPA permits the Court to hear testimony consistent with Section 4’s guidelines. Specifically,
Section 8(c) of CIPA addresses testimony in a criminal case that may disclose classified
information. Section 8(c) provides that “[d]uring the examination of a witness in any criminal
proceeding, the United States may object to any question or line of inquiry that may require the
witness to disclose classified information not previously found to be admissible.” 18 U.S.C.
App. 3, § 8(c). Once the government makes such an objection, “the court shall take such suitable
action to determine whether the response is admissible as will safeguard against the compromise
of any classified information. Such action may include requiring the United States to provide the
court with a proffer of the witness’ response to the question or line of inquiry and requiring the
defendant to provide the court with a proffer of the nature of the information he seeks to elicit.”
Id.

Section 6 of CIPA also addresses specific procedures for disclosure of classified

information. Similar to Section 4, Section 6(c) provides that the “United States may move that,

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PUBLIC VERSION

would not give any testimony. Haim said that he then spoke with Salah emphatically. (/d. at
469.) Haim testified that he told Salah that he had already made many statements to them that he
could not “negate” or “run away from.” (/d. at 466.) Haim also conceded that he was angry that
Salah refused to give any testimony to Officer Suleiman. (/d. at 468, 849.) Significantly, for the
first and only time during his custodial questioning at the ISA, Haim sent Salah to “cell wait”
because Salah refused to give Officer Suleiman any testimony. (/d. at 473-44, 850-51; Gov. Ex.
2/21/93 9:30 a.m.) “Cell wait” refers to placing a detainee inside a cell at the ISA interrogation
facility that has a bench where the detainee can sit down. (Tr. at 297-98, 732.) Haim admitted
that he sent him there, in part, to send a message that Salah should seriously consider giving
testimony to Officer Suleiman. (Jd. at 473, 866-67.) Haim left Defendant Salah in cell wait for 3
Ys hours that day. (Jd. at 474; Gov. Ex. 2/21/93 9:30 a.m.) Furthermore, Haim also told Salah
that if he did not give the testimony to Officer Suleiman that Salah’s interrogation could be
prolonged. (Tr. at 849.)

After Salah came out of cell wait, he met with Suleiman again. (/d. at 475.) Haim
testified that Suleiman subsequently gave the ISA a handwritten statement allegedly reflecting
information provided by Salah. (Jd. at 475-76; Gov. Ex. 2-21-93 Salah Statement.) Similar to
the January 27, 1993 statement, Suleiman wrote the February 21, 1993 statement in Hebrew.

Salah, however, refused to sign the February 21, 1993 statement.

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f. The Statements Are Admissible

Given the totality of the circumstances, the government has proven by a preponderance of
the evidence that Defendant Salah voluntarily made these statements on March 18, 1993. The
tone of the conversation and the comments made by Defendant Salah do not demonstrate an
individual whose will was overborne. To the contrary, they corroborate that his statements were
the product of a rational intellect and free will, not the product of coercion.
III. Exceptions to the Admissibility of Statements Made to Foreign Officials

A. Joint Venture

It is undisputed that the ISA agents did not give Defendant Salah any Miranda warnings
prior to his statements. In fact, Haim testified that he informed Defendant Salah at their first
meeting that Salah did not have the right to consult with an attorney under Israeli law. (Tr. at
805.) Even though the government has proven by a preponderance of the evidence that
Defendant Salah voluntarily made the above described statements, if the United States was acting
in a joint venture with the Israeli authorities at the time of Salah’s questioning, Miranda
warnings were mandated. See, e.g., Yousef, 327 F.3d at 145.

The record is devoid of any evidence suggesting that the United States was acting in a
joint venture with the Israeli authorities in the questioning of Salah from January 25, 1993
through March 18, 1993. There is no evidence of any investigative contacts, communications or
inquiries during this time period. No United States agents were present during the questioning of
Salah. Furthermore, Haim credibly testified that he never received any requests or instructions
from the FBI regarding his investigation and questioning of Salah. (Tr. at 462.) Nor did he base

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testified at the suppression hearing in both an expert and a fact® witness capacity.
1. Israeli Procedures

Mr. Feldman testified regarding the differences between a military court where Salah was
prosecuted and a civil court in Israel. (/d. at 2194-97.) Ina military court, all the judges are
soldiers. (Jd. at 2195.) Where three judges preside over a case in military court, only one of
them has to have legal training. (/d.) In the case of Defendant Salah, two of the judges had legal
training. (/d.) Mr. Feldman explained that the ISA has no legal power in a military court — they
do not appear in court or address the court directly. Instead, a prosecutor appears to make the
requests, (Jd. at 2199.)

Mr. Feldman also testified regarding the “mini-trial” procedure in Israel. He testified that
a defendant in a military court in Israel had the right to challenge the admissibility of the
prosecutor’s evidence, including the admissibility of any statements that the defendant
purportedly made to Israeli authorities. (Jd. at 2310.) In order to make a determination regarding
such evidence, a military judge holds a mini-trial, which is similar to a suppression hearing in the
United States, (/d. at 2310-11.) As Mr. Feldman testified, the military judge dictates to a soldier
to record the proceedings. (/d. at 2322-23.) At the time of Defendant Salah’s mini-trial in Israel,
the soldiers hand wrote the proceedings. (/d.}

Mr. Feldman also testified regarding the Landau Committee’s report from 1987. (Jd. at

2182-89.) He testified that there is an open report and a confidential report. (/d. at 2182.) He

® Salah executed a written and oral waiver of his attorney client privilege regarding Mr.
Feldman’s representation of him while in Israel. (R. 532-1, Salah Waiver Aff.)

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Ms. Miller did not report any signs of physical abuse or torture of Salah. This is
consistent with the testimony of the ISA witnesses.

6. The Medical Records Corroborate Nadav’s and Haim’s Testimony

The medical records further corroborate the ISA interrogators’ testimony, and counter
Defendant’s assertions of abuse. Salah has not alleged that the medical officers abused him or
treated him improperly, nor did he introduce any such evidence.

Salah received a medical examination when he arrived at the Ramallah facility on January
25, 1993. The medical officer who examined him reported that Salah did not have any
complaints, and they treated him for his ulcer. (Gov. Ex. Medical Records 2 Trans SH at 13896;
Tr. at 437.)

On January 28, 1993, the medical records — stamped by Dr. Ben-Ari Victor — reflect
“Normal general physical and mental condition.” (Gov. Ex. Medical Records 2 Trans SH at
13685). They further reflect “No need for treatment.” (/d.) These medical records demonstrate
that Defendant Salah was again checked for his medical condition on February 4, 1993, February
26, 1993, March 1, 1993, March 7, 1993, and March 25, 1993. (/d.) The only complaints
reflected in these medical records relate to Defendant’s ulcer. (/d.) The records also reflect that
he was being treated for this condition. (/d.) None of these records contain any indication that
Salah had been physically or psychologically abused.

The American Consulate General documents also reflect that Salah reported that his
health was “fine.” On February 12, 1993, Salah told them that he was “examined twice daily by
prison medical personnel.” (Gov. Ex. CDG at 21.) On February 19, 1993, he told the Consulate

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PUBLIC VERSION

After being processed and having a medical examination, Salah was transferred to the
Ramallah interrogation facility around 10:00 p.m. in the evening. (/d. at 301.) Haim then had
him detained “because of his terrorist activities, because of intelligence regarding his terrorist
activities.” (/d. at 850.)

3. Haim Met Salah on January 25, 1993

Haim first saw Salah around 10:30 p.m. the evening of January 25, 1993, the day the
Israelis arrested Salah. He described Salah as “a mature person dressed with a suit, and I think he
even had an overcoat.” (/d. at 310, 778.) Haim described Salah as “a wise, sophisticated man;
and I realized that he wanted to check out to see what we know about him, what we don’t know
about him, so that he could consider his steps ... in order to decide what to admit to and what to
conceal.” (id. at 322.) Haim testified that Salah’s clothing was not dirty, rumpled or torn in any
way. He was “very respectably dressed.” (/d. at 310.) Furthermore, Haim testified that he did
not observe any bruises or cuts on Salah, although he acknowledged that he did not see the parts
of his body that were covered by his clothes. (/d. at 311, 779.) Haim did not observe any signs
of mistreatment, nor did Salah complain to him of any such mistreatment. (/d. at 311-12.)
Moreover, Haim never heard from Israeli authorities that Salah had been mistreated during his
arrest. (/d. at 312.) Haim also testified that, contrary to statements in Salah’s affidavit, Salah
was not placed in a cold, dark isolated cell at the interrogation facility after his arrest. (/d. at 312-
13.) Haim also denied that Salah was cuffed to a smal! child’s chair, hooded, or that any
interrogator slapped him. (/d. at 316, 778.) During this first meeting, Haim introduced himself
to Salah as Major Haim, the head of the interrogation team in Ramallah. According to Haim, he

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IV. The Hearing?

Commencing with opening statements on March 3, 2006, the Court heard extensive
testimony over thirteen days’. During the hearing, two interrogators from the ISA testified,
including Nadav, the interrogator who primarily questioned Defendant Salah during the time
period in question. The Court heard over six days of testimony from these two witnesses,
including approximately four days of cross examination. Defendant Salah called multiple
witnesses at the hearing, but did not testify himself. Both sides admitted extensive
documentation for the Court to consider. To the extent it is relevant, the Court will address it

below’.

? The Court repeatedly held during the hearing, over Defendant’s strenuous objections,
that the Federal Rules of Evidence do not apply during suppression hearings. See United States
v, Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980) (“At a suppression
hearing, the court may rely on hearsay and other evidence, even though that evidence would not
be admissible at trial.”); United States v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct. 988, 994, 39
L.Ed.2d 242 (1974) (“[T}he rules of evidence normally applicable in criminal trials do not
operate with full force at hearings before the judge to determine the admissibility of evidence”);
United States v. Ienco, 92 F.3d 564, 568 (7" Cir. 1996) (“But when, as in a suppression hearing,
a jury is not involved, there is no reason for the judge to become preoccupied with the niceties of
the rules of evidence.”) See also Fed.R.Evid. 104(a) (a court is “not bound by the rules of
evidence except those with respect to privileges” in deciding “[p]reliminary questions concerning
... the admissibility of evidence”).

3 In order to accommodate witnesses’ schedules, including Defendant’s witness Mr.
Jonathan Kuttab, the Court extended the hours of some of the suppression hearing days.

* Over Defendant’s objection, the Court admitted the English translations of his alleged
statements. See United States v. Watson, 87 F.3d 927, 930 (7" Cir. 1996) (the totality of the
circumstances “[b]y definition . . . includes the confession itself.”). The Court did not, however,
consider the truthfulness of these statements in reaching its holding. See Lego, 404 U.S. at 485
n.12, 92 S.Ct. at 624 n,12; Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L.Ed.2d
760 (1961).



PUBLIC VERSION

treated patients, he has not done so for the past 6 or 7 years. (Tr. at 2409.) Dr. Sarraj has treated
victims of torture and spent time investigating the methods used against Palestinians by the ISA.
(id. at 2410; Def. Ex. 23.) He testified that the median age of these victims was 25.4 years of
age. (Tr. at 2452-53.) As part of this investigation, he interviewed victims of alleged torture at
the hands of the ISA. (/d. at 2411.) None of these victims were American citizens and Dr. Sarraj
admitted that he had never talked to an American citizen who claimed to have been tortured at
the hands of Israeli authorities. (/d. at 2464.) None of these alleged victims lived in America or
had a family structure in America. (/d. at 2452-53.)

Dr. Sarraj stated that he has focused his work on children and individuals living in the
Gaza Strip who have been traumatized by their living conditions. (/d. at 2442.) Dr. Sarraj was
imprisoned by Palestinians and testified that he was tortured by them. He was never, however,
arrested, questioned or imprisoned by the ISA or any other Israeli authority.

Dr. Sarraj opined that in 1993, the ISA used interrogation techniques designed to break
the will of interrogees to enable the ISA to obtain information. (/d. at 2411-12.) In his opinion,
the first 36 hours that a detainee is in custody are crucial to “breaking down” the individual’s
will. (Id. at 2434-35.)

Before testifying, Dr. Sarraj read Salah’s affidavit and listened to random portions of the
audio-tape from March 18, 1993. (/d. at 2456-57.) Dr. Sarraj opined that the allegations in
Defendant Salah’s affidavit were consistent with the methods used by the ISA against other
security detainees at that time. (/d at 2412.) He further opined that sleep deprivation was “one

of the routine methods used by the interrogators in Israel and later on by the Palestinians

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PUBLIC VERSION

suppression hearings as it does at trial.” United States v. Boyce, 797 F.2d 691, 693 (8" Cir.
1986). See also United States v. Young, No. 00-6378, 238 F.3d 418, 2000 WL 1726585, at *1
(4" Cir. Nov. 21, 2000) (“the right of confrontation does not apply to the same extent at pretrial
suppression hearings as it does at trial”). Rather, the Supreme Court has stated that “the right to
confrontation is a trial right.” Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94
L.Ed.2d 40 (1987) (emphasis in original). Further, even at trial, a district court “retains wide
latitude in limiting the extent and scope of cross-examination.” United States v. Robbins, 197
F.3d 829, 845 (7" Cir. 1999).

The Supreme Court has also expressly addressed a witness’s assertion of a privilege in
the context of the Sixth Amendment. McCray, 386 U.S. at 312-13, 87 S.Ct. at 1063. In McCray,
the Supreme Court held that an Illinois court did not deprive the defendant of his Sixth
Amendment right to confrontation at a pretrial hearing when it allowed the officers to testify as to
what a confidential informant told them without disclosing the informer’s identity. The McCray
Court found that the prosecutor did not need to call the informant at the pretrial hearing in order
to satisfy the petitioner’s confrontation rights. The officers’ testimony regarding the information
provided to them from the informant satisfied the defendant's rights. The Supreme Court further
held:

On the other hand, the [petitioner’s] claim may be that the petitioner was deprived of his

Sixth Amendment right to cross-examine the arresting officers themselves, because their

refusal to reveal the informer’s identity was upheld. But it would follow from this
argument that no witness on cross-examination could ever constitutionally assert a

him.” U.S. Const. amend. VI.

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affords Salah’s affidavit substantially less weight than the testimony of Nadav and Haim. See,
e.g., Untied States v. Baker, 78 F.3d 1241, 1243 (7 Cir. 1996) (“Baker’s Fourth Amendment
claims rest on his version of the facts. The district court, however, determined after a
suppression hearing that Baker’s version was not credible. Instead, the court chose to credit
[Officer] Brophy’s view of what happened. That determination — to credit Brophy’s version
rather than Baker’s — cannot be clearly erroneous.”); United States v. Carlisle, No. 04-CR-055-C,
2004 WL 1085194, at *7 (W.D. Wis. May 7, 2004) (“[Defendant] claims that things were even
worse than this, but I have accorded slight weight to his affidavit, First, although the affidavit is
admissible in a suppression hearing, [Defendant] declined to subject his assertions to cross-
examination or a demeanor check by taking the stand.”); United States v. Frank, 8 F. Supp. 2d
284, 291 n.2 (S.D.N.Y. 1998) (“[s]ince Frank did not testify at the hearing, and was not subject
to cross-examination, the Court was unable to form an opinion as to his credibility or the
truthfulness of his allegations”).

Furthermore, Agent Bray’s testimony regarding the fraudulent loan application attacked
Salah’s credibility. The Court admitted Agent Bray’s testimony pursuant to Federal Rule of
Evidence 806. That Rule provides, in relevant part:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has

been admitted in evidence, the credibility of the declarant may be attacked, and if

attacked may be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness.

Fed. R. Evid. 806. See generally, United States v. Noble, 754 F.2d 1324, 1331 (7" Cir. 1985).

If Defendant Salah had testified regarding the averments in his affidavit, the government

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
Vv. No. 03 CR 978
MOUSA MOHAMMED ABU MARZOOK,
MUHAMMAD HAMID KHALIL

SALAH, and ABDELHALEEM
HASAN ABDELRAZIQ ASHQAR,

Swe eee

Defendants.
MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On August 19, 2004, a Grand Jury returned a multiple-count, second superseding
indictment (the “Indictment”) against Defendant Muhammad Hamid Khalil Salah (“Defendant”
or “Salah”), also known as Abu Ahmad, and his co-defendants, Mousa Mohammed Abu
Marzook and Abdelhaleem Hasan Abdelraziq Ashqar. Defendant Salah has filed a motion to
suppress statements he allegedly made to Israeli authorities in 1993 on the basis that he did not
voluntarily make any of the statements which the government seeks to admit at trial. Defendant
Salah argues that Israeli authorities coerced and tortured him into making any such statements.
The Court conducted an extensive hearing on the issue. Because the Court finds that the
government has met its burden of proving by a preponderance of the evidence that Defendant

voluntarily made the majority of the statements at issue, the Court denies Defendant’s motion in



PUBLIC VERSION

States v. Orozco-Martinez, No. 05-CR-279, 2006 WL 51151, at *5-7 (E.D. Wis. Jan. 9, 2006)
(recommending denial of motion to suppress statement written in English and translated to
defendant in Spanish).

3. A handwritten signed agreement allegedly entered into between Salah
and his GSS interrogators

The government seeks to admit a handwritten agreement written by Salah in Arabic
pertaining to the location of the body of Sa’doan. (Gov. Ex. Sa’doan Agreement.) The Court
heard extensive testimony regarding this document and the circumstances surrounding its
creation, and holds that the government has proven by a preponderance of the evidence that
Defendant Salah voluntarily made this statement.

First, Haim’s and Nadav’s testimony substantiates that Defendant Salah voluntarily made
this statement. Defendant signed this agreement while in their presence, and they both credibly
testified regarding the circumstances surrounding this agreement. They both testified that Salah
negotiated the terms of the agreement, wrote out those terms in their presence, and signed the
agreement in front of them.

Second, their testimony regarding these circumstances is corroborated in the
contemporaneous ISA logs, including the logs reflecting Salah’s telephone calls to his wife
regarding this subject. (Gov. Exs. 1/31/93 — 3:00 p.m. Interview Log; Salah Handwritten Map 1;
Salah Handwritten Map 2; 2/23/93 — 10:18 a.m. Interview Log; 2/3/93 — 5:30 p.m. Interview
Log; 2/3/93 — 9:30 p.m. Interview Log; 2/4/93 — 12:30 a.m. Interview Log; 2/7/93 — 11:30 a.m.

Interview Log; 2/9/93 — 2:30 p.m. Interview Log.)

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F.Supp.2d at 1370 (same). The Court agrees that courts should not admit evidence obtained by
foreign officials outside of the United States if they obtained such evidence through conduct that
shocks the court’s conscience.

For the reasons discussed above, the Court finds the ISA interrogators’ testimony and
version of the events credible. The Court rejects Defendant Salah’s version set forth in his
uncrossed affidavit. The Israeli officials’ conduct does not shock the conscience.

Regarding Salah’s treatment at the time of his arrest, both Haim and Nadav testified that
they saw no evidence that the arresting officers had abused Defendant. They did not observe any
such signs of abuse and Salah never complained to either of them about abuse. As Nadav
testified, “if there would have been a problem, [he] would have known.” (Tr. at 1322.) Further,
his clothes were not torn or dirty. (Jd, at 967.) The photographs taken shortly after his arrest also
show no signs of physical abuse. Further, United States Consulate General Officer Razek visited
Salah shortly after his arrest. Salah did not complaint to him about any abuse and Officer Razek
did not observe any signs of abuse. Although none of these individuals observed the parts of
Salah’s body that were covered by his clothes, Salah has alleged, among other things, that the
arresting officers struck him in the head with their rifle butts. (R. 310-2 at J 3.) It is likely that
such strikings would have manifested themselves in signs of abuse on Defendant’s head, which
none of these individuals viewed either immediately after or within days of Salah’s arrest.

The medical records also corroborate that Salah was not injured. (Tr. at 1290-91; Gov.
Ex. Medical Records.) According to the records, his medical condition was “fine.” (/d.)
Similarly, the records from the American Consulate report that Defendant did not report any

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PUBLIC VERSION

obstructing justice, in violation of 18 U.S.C. § 1503 (Count III). (R. 59-1.) Each charge is
premised upon and related to Salah’s alleged support of the Hamas terrorist organization, both
prior to and after the United States designated Hamas as a Specially Designated Terrorist
Organization and a Foreign Terrorist Organization. The Indictment alleges that Hamas has called
for violent terrorist attacks, and engaged in numerous terrorist attacks aimed at Israeli military
personnel, police officers, and civilians. It alleges that Defendant Salah has provided material
support to Hamas, including recruiting and training new Hamas members in the United States
and disbursing money from the United States to support Hamas activities and members. It
further alleges that Salah was a member of a United States-based Hamas security committee that
identified Palestinian men in the United States to assess “their capacity to participate in terrorist
activities against Israel.”

In furtherance of the conspiracy, the Indictment alleges that Defendant Salah traveled to
Israel in January 1993 to further the objectives of Hamas. During this trip, Israeli authorities
arrested him as described above.

The government seeks to admit the statements set forth above as evidence at the trial of
this matter. The government bears the burden of proving the voluntariness of these statements by
a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30

L.Ed.2d 618 (1972). The trial is scheduled to commence in October, 2006.



PUBLIC VERSION

Third, Salah’s statements to Mr. Razek and the corresponding American Consulate
documents support that Salah voluntarily entered into this agreement and made this statement.
As Agent Priestap testified, Salah told Mr. Razek in February 1993 that he was attempting to
negotiate with the Israelis regarding the burial location of a slain Israeli soldier in exchange for
the release of female Palestinian prisoners. The documents from the American Consulate
corroborate this testimony and the voluntariness of this agreement. In a “confidential” document
from the Department of State reflecting Salah’s meeting with the American Consulate while he
was in ISA custody, Salah told the Consulate General about his “secret deal with the Israeli
authorities.” (Gov. Ex. Consulate Docs. at 024.) Salah told the Consulate General that he had a
copy of the map in the United States “showing the location of the body, and that he was working
from his memory of that map. He said his wife had burned all his documents but that she could
get a copy of the map from someone in the U.S.” (/d.) The State Department report reflects the
terms of the agreement with the Israeli officials. It further notes that “Salah told Conoff he had
been allowed to call his wife and had asked her to fax a copy of the map to the prison. His wife
believed he was being coerced and refused to send it. Salah asked Conoff to call his wife and
assure her that he is acting of his own free will.” (/d.)

In addition, the Report notes that Salah showed the official a handwritten document,
“which he claimed was an original of the deal he had made with the authorities.” (/d.) The
report sets forth the language of the handwritten agreement at issue, which is virtually verbatim
with the one the government seeks to admit. (/d. at 025.) It specifically provides that Defendant
Salah will identify the burial place of the Soldier Sa’doan, and that in return, the ISA agreed to

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PUBLIC VERSION

(id. at 1106.) Nadav described Salah as “very respectful when he spoke, and he made very good
contact with people he came in touch with.” (Jd, at 1165.) With respect to Haim, Salah told
Nadav, “if I wanted to be defiant with Haim, I would have done so.” (Jd. at 1106.)

During the March 18, 1993 session, Salah reviewed the contents of his handwritten
statement in detail. They had a copy of the report with them during the session and went through
it. (/d. at 1146-47.) According to Nadav, Salah discussed the topics and admitted areas where he
previously had not been truthful with Nadav or had given him false information. (/d. at 1163,
1181, 1200-02, 1204-05.) Nadav testified that Salah told him about his Hamas activities both
inside and outside the United States.

Nadav testified that Salah did not know how he had obtained a copy of his handwritten
statement to the birds. (Jd. at 1146-48, 1207-08.) Salah inquired about how he had obtained it,
and asked if they had “spies” in the prison. (/d. at 1147.) Nadav testified that Salah “didn’t
understand if I went to the prison and had — and I just took it from the detainees or did I have
spies that they brought me these reports.” (/d. at 1148.) Nadav added, “from my experience, it
indicates in the prison — that in the prison it was like regular detainees and his treatment was
good. That in such a situation, from my previous experience, if there was any problem at that
moment, he would have told me in which way he delivered the reports. From my standpoint, it’s
another indication that his treatment during the exercise was good.” (/d.)

According to Nadav, Salah refused to provide Nadav with certain information during this
session on March 18, 1993. (id. at 1144-46, 1204-06.) Nadav did not push the issue. (Jd. at
1093, 1108-09.) He also corrected statements in the handwritten document that were incorrectly

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PUBLIC VERSION

country.” (Id. at § 2.) The affidavit, in essence, denied the truth of any of the information Salah
had provided to the ISA regarding Marzook on the basis that “[a]ll of these statements are the
product of a systematic employment of physical and mental torture, terror and coercion.” (Jd. at
7.) In the 1995 Salah Affidavit, Defendant Salah averred that he “was forced to sit on a chair
only eight inches high (a children’s chair) and bound to it for long periods.” (/d. at { 8(b).)
Against this, the Court weighs the testimony of both Haim and Nadav who adamantly
denied that anyone at the ISA forced Salah to sit in a small child-like chair. They denied that
they forced him to do so, that they heard of anyone forcing him to do so, that they observed
anyone forcing him to do so, or that they ever saw him sitting in such a chair. In addition, Haim
credibly testified that the head of the ISA ordered not to place Defendant in a small chair or to
place a hood on his head. Given these factors and weighing the totality of the circumstances,
Haim’s and Nadav’s credible testimony outweighs Salah’s statements in his affidavit in this case.
Furthermore, during the course of the hearing, defense counsel made much of a small
child-like chair, marked as Defendant’s Exhibit 5. No witness, however, identified this exhibit
as the type of chair Defendant allegedly had to sit in. Defendant — who claims in his affidavit
that he spent significant time in the chair — did not identify it in his affidavit. Further, Mr.
Feldman — who testified that he saw the small chair during a court proceeding in Salah’s case —
did not identify Defendant’ s Exhibit. 5 as the type of chair they used. (Tr. at 2230-31.) Neither
Mr. Al-Batsch nor Mr. Qatamesh ~ both of whom claimed to have been placed in such a chair —

identified Defendant’s Exhibit 5 as the type of chair in which they sat.

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2. Salah

The uncontested evidence at the hearing supports that Salah is quite intelligent and
articulate. Nadav described Salah as highly intelligent and polite. (Tr. at 967-68.) The
American Consulate report described Salah as “a bright well-informed individual who articulates
his points clearly.” (Def. Ex. Salah Con. Docs. At 73.) Indeed, Mr. Razek, from the Consulate
General’s office, described Salah to FBI Agent Priestap as “very intelligent.” (Tr. at 1936.)

3. American Citizenship

The Court also finds Defendant’s American citizenship significant to its findings. Haim
and Nadav both testified that Salah’s citizenship status resulted in more favorable treatment than
other detainees. In fact, Haim received a direct order from the head of the ISA that they should
treat Salah differently because of his status, including not placing a hood on his head or having
him sit in a small chair. Nadav consistently testified that Salah received special treatment, in
part, because he was an American citizen. (/d. at 1370.) Even Salah told the American
Consulate in 1993 that “he was well and that he believed he was receiving better treatment than
other prisoners.” (Gov. Ex. CDG at 25.)

Nadav’s and Haim’s testimony that Salah was treated differently from other detainees is
corroborated on the audio-taped conversation between Nadav and Salah on March 18, 1993.
Specifically, Nadav tells Salah that he has treated him “throughout my whole interrogation with
you ... not like I treat anyone else.” Salah responded, “That is it. Then our relationship remains,
eh, brotherly and I will not have any surprises.” (Gov. Ex. Tape 5 English Translation SH at 50-

51)

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PUBLIC VERSION

869.) Haim testified that Salah “wanted to remain in the investigating room or in interrogation
room.” (/d. at 239.)

During his testimony, Haim admitted that at times, the ISA interrogated Defendant Salah
into the night “according to the need of the investigation or the interrogation.” (/d. at 238.) He
added, however, that they proceeded in this manner with Salah’s agreement. (/d. at 239.) Haim
also stated that during Salah’s interview sessions, they took breaks to enable Defendant Salah to
rest, eat and drink. (/d. at 239.)

6. Right to An Attorney and Visits from the American Consulate

Haim testified that Israeli laws differ from those in the United States regarding a
detainee’s right to an attorney. Under Israeli law, Defendant Salah did not have the right to see a
lawyer immediately, even if he requested one. (/d. at 243, 319.) Haim testified that the head of
the ISA interrogation team could prevent a detainee from seeing a lawyer for 15 days, and could
further extend that period for an additional 15 days. (/d. at 243, 431.) A military judge could
then extend that period for an additional 30 days. (/d. at 431-32.) The president of the military
court, according to Haim, could extend the time period by yet another 30 days, but Haim testified
that such an extension rarely occurs. (/d. at 432.)

Haim denied laughing at Defendant Salah when he asked for an attorney, but he
explained to him that he was not permitted one immediately under Israeli law. (/d, at 243.) On
January 27, 1993, Haim issued an order — as permitted under Israeli law — that Salah could not
meet with an attorney for 13 days. (/d. at 819-26.) He testified that he exercised this authority

for the benefit of the ISA’s investigation. (Jd. at 820-24; Def. Ex. 6.) Haim testified that he

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PUBLIC VERSION

VI. Salah’s Affidavit

Defendant Salah did not testify at the suppression hearing, but submitted an affidavit in
connection with his motion to suppress. In his affidavit, Salah averred that he was arrested on
January 25, 1993 “by a large group of heavily-armed Israeli soldiers at a Gaza checkpoint in the
Palestinian occupied territories.” (R. 310-2, § 2.) Salah contends that the soldiers handcuffed
him, blindfolded him and threw him into ajeep. (/d.) While driving him to a military
interrogation facility in Ramallah, Salah claims the following:

[The soldiers] repeatedly stomped on me with their boots and struck me with their rifle

butts in my head, my groin, and all over my body while I lay on the floor of their vehicle.

They insulted me in English and Arabic, and they were laughing as they stomped on my

body, my head, and my groin area. They insulted my mother. They called me a terrorist

and constantly threatened me. They used racial slurs toward me and my family. I feared
for my life from the moment I was taken into custody.
Ud. at 13.)

Salah further claims that once at the military interrogation facility in Ramallah, he was
hooded and handcuffed, and his legs were shackled. From his day of arrest through at least
March 18, 1993, Salah contends that he was interrogated through physical and psychological
abuse and threats, and sensory and sleep deprivation. On his first day of interrogation at the
Ramallah interrogation facility, Salah claims he was stripped naked and confronted by
interrogator “Haim.” (Jd. at 17.) According to Salah’s affidavit, Haim told him that he planned
to photograph him naked. He also allegedly told Salah that he and his family would be killed

unless Salah cooperated with the ISA, and informed Salah that he did not have a right to an

attorney in Israel. (/d. at ] 7.)

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Haim, I would have done so.” (Gov. Ex. Tape 1 English Translation SH at 7.) Such a bold
statement counters his assertions of his will being overborne by Haim’s actions.
11. Access to a Lawyer

Defendant argues that his Sixth Amendment right to counsel was violated when he
requested counsel after his arrest, and the Israeli authorities refused to provide him one. In the
United States, it is clear that a defendant in a custodial interrogation has the right to an attorney
when he unambiguously requests one. United States v. Peters, 435 F.3d 746, 751 (7" Cir. 2006)
(citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981);
Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994);
Miranda, 384 U.S. 436, 86 S.Ct. 1602). The Second Circuit, however, has held that “a request
for counsel in the context of an investigation conducted solely by foreign officials does not, in
itself, amount to an invocation of the right to counsel with respect to United States proceedings.”
Yousef, 327 F.3d at 142 (citing United States v. Coleman, 25 M.J. 679, 686-87 (A.C.M.R. 1987);
United States v. Covington, 783 F.2d 1052, 1055-56 (9" Cir. 1985)). In Yousef, the defendant
had been indicted in the United States on charges relating to the 1993 bombing of the World
Trade Center, and the United States initiated extradition hearings in Pakistan to have him
extradited to the United States to face the charges. Yousef claimed that he had invoked his right
to an attorney to Pakistani officials during his extradition hearing. The court noted that
Defendant Yousef “thas failed to establish that his request [for an attorney] had any cognizable
legal effect under American law or the Sixth Amendment thereunder.” Yousef, 327 F.3d at 142.

The Court agrees with the Yousef holding. Similar to the joint venture analysis described

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only ‘guarantees an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense may wish.”” U.S. v. Zapata, 871
F.2d 616, 623 (7" Cir. 1989) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292,
294, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original)). Defendant had more than
sufficient opportunity to cross examine Haim and Nadav.

As noted at the outset, the ex parte testimony at issue was not related in any way to the
question of Salah’s guilt or innocence of the underlying crimes with which he is charged. To the
extent that the ex parte testimony was relevant, it went, at best, to the credibility of the testifying
ISA officials. The ISA witnesses answered all of the Court’s questions and did not refuse to
answer any of the Court’s questions on the basis of classified information. Prior to hearing the
ISA witnesses’ testimony ex parte, the Court gave Defendant the opportunity to proffer the
purported significance of the questions to which these witnesses limited their answers in order to
protect classified information. The Court — the trier of fact on the issues at the suppression
hearing — had the opportunity to evaluate the demeanor and credibility of these witnesses, heard
all of the testimony, and had access to all of the documents. See United States v. Bell, 464 F.2d
667, 671 (2d Cir. 1972).

Moreover, the government provided stipulations to the defense as substitutes for the
classified information. These substitutions enabled Defendant to make appropriate arguments
based on the information reviewed by the Court. Because the Court received and evaluated the
classified evidence, the Court put Defendant’s arguments in context.

In reaching this conclusion, it is significant that the ex parte hearings were quite limited

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On February 12, 1993, Mr. Razek again met with Defendant Salah. During this session,
Salah complained to him for the first time that he had been handcuffed to a chair with the front
legs shorter than the back legs. (/d. at 1935.) According to Agent Priestap, Mr. Razek did not,
however, notice any marks from this alleged mistreatment, even though it was his policy to have
detainees show him any marks or scars on their person and describe the origin of the marks or
scars. (Id. at 1935-36.) Mr. Rajek also told Agent Priestap that if he personally noticed the
marks or scars, he would inquire of them and include them in his reports.

Agent Priestap also testified that Salah told Mr. Razek that he was attempting to negotiate
with the Israelis regarding the burial location of a slain Israeli soldier in exchange for the release
of female Palestinian prisoners. (/d. at 1936-37.) During this conversation, Salah asked Razek
to convey a message to his wife. (/d. at 1937.) Because Mr. Razek thought the message sounded
suspicious, he did not convey it to Salah’s wife. (/d.)

E. Jonathan Kuttab

Defendant called Jonathan Kuttab as an expert on ISA interrogation techniques. Mr.
Kuttab is an attorney who practices in Israel and Palestine and sometimes in the United States.
(id. at 1820-21.) As part of his practice, Mr. Kuttab has represented “hundreds” of people before
the miliary courts in the Occupied Territories. (/d. at 1822.) Some of these individuals were
security detainees. (/d.) Mr. Kuttab has written about and spoken regarding the rule of law in
the Occupied Territories. (/d. at 1822-23.) He has also appeared in the media as an expert
regarding these subjects, and has taught courses on the issue of human rights in the Occupied

Territories. (/d. at 1824.) Mr. Kuttab is active in multiple human rights organizations. (/d. at

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PUBLIC VERSION

marks two or three months afterwards.” (/d.) Mr. Feldman never observed Salah in any stage of
discomfort that required the attention of a physician. (/d.) Mr. Feldman testified that Salah had
some health problems, but he received treatment for them. (/d.)

According to Mr. Feldman, Salah never complained to him about his treatment by the
birds when he was in custody with them in March 1993. Mr. Feldman also testified that Salah
never told him about the birds because Salah did not know that he was part of a bird exercise.
(Id. at 2255-56, 2340.) Mr. Feldman testified that both he and Salah first learned of the bird
exercise during the cross examination of either Nadav or Haim in the min-trial. (/d. at 2256,
2340.) Mr. Feldman testified that Salah never told him that he was transported to a prison in
Hebron and placed in a cell with 15 to 20 Palestinian prisoners who also claimed to be part of
resistance movements. (/d, at 2342.) Salah never told him that any prisoners held a razor to his
face. (/d. at 2341.) Further, Mr. Feldman testified that Salah never told him that these prisoners
had asked him to write a statement of why he had come to Israel. (/d. at 2342.) Mr. Feldman’s
belief was that Salah did not convey any such information to him because Salah did not know
that he had been subjected to a bird exercise. (/d. at 2341-43.)

Salah never informed Mr. Feldman that Judith Miller observed any interrogation session.
In fact, Mr. Feldman testified that he first learned of Ms. Miller’s involvement by Salah’s counsel
in this case. (/d. at 2350-55.)

I, Ahmed Husni Khalil Al-Batsh

Ahmed Husni Khalil Al-Batsh testified via video conference from the City of Ramallah.
Al-Batsh is a Palestinian male who was arrested at his home by Israeli soldiers in September

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prove that he was not a collaborator with the Israelis by putting the information he knew in
writing and they “produced paper and pen for me to use all the while screaming their threats.”
In his 1995 affidavit, Salah did not contend that the birds provided him with the substance of the
information he included in his 53 page handwritten statement. Salah now adds that he based the
handwritten statement on questions that the birds gave to him and “eventually included in a
written statement all the information that they provided to [him] in writing.” (Salah Aff. { 27.)
These contradictions regarding his treatment, the methods used by the birds to obtain the
information, and the origin of the information challenge Defendant’s credibility, including any
averments that the birds coerced him into writing the 53 page statement.

Contrary to Defendant’s assertion, the failure to call any of the “birds” as witnesses at
trial does not require the suppression of Salah’s handwritten statement. The government
presented evidence — including Salah’s audio-taped statements — that he wrote the statement.
Further, the evidence described in detail above corroborates the government’s position that Salah
voluntarily wrote this statement.

Viewing the totality of the circumstances, the government has proven by a preponderance
of the evidence that Defendant voluntarily made the 53 page handwritten statement to the birds.

5. March 18, 1993 Statements

The government also seeks to admit Salah’s statements from a March 18, 1993 session
with Nadav. That session lasted over five hours, and the ISA audio-taped it in its entirety. As
Nadav testified, Salah had agreed to meet with him one last time and review the 53 page
handwritten statement that Salah had made with the birds — Salah “is going to tell me about

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both the 1988 and 1989 returns were dated in April of the same year they covered — in other
words, one year too early. (/d. at 2614, 2616.)

Agent Bray also testified that the 1990 tax return submitted by Defendant with the loan
application reflected that he had earned $51,741 in the tax year 1990, (/d. at 2616.) The IRS did
not show any taxes being paid by Defendant for 1990, Although the IRS could not locate a tax
return filed by Defendant for the tax year 1990, it did locate a tax refund check from the IRS to
Defendant Salah for that year in the amount of $961, dated April 26, 1991. (/d. at 2618;
Government Exhibit 4-26-91 Salah Refund Check.) Agent Bray testified that his investigation
revealed that the refund is “almost like a government subsidy program for lower-income
taxpayers. According to the 1990 tables for earned income credit, taxpayer who received a $953
credit would have had earned income of at least $6,800 for that year, not to exceed $10,750.”
(Tr, at 2621.)

According to Agent Bray, the bank did not lose any money on this loan because it was
paid off in full. (/d. at 2633.) In April 1993 - when Defendant remained in custody in Israel —
Defendant’s wife paid off the loan. (/d. at 2639.) Prior to that time, Agent Bray testified that she
withdrew approximately $536,000 from an account at LaSalle Bank and deposited the amount
into an account at Standard Bank and Trust. (/d. at 2640.) The $536,000 included funds from
co-defendant Marzook. (/d.) Defendant’s wife used $97,000 of this money to pay off the loan.

id.)

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1992. (/d. at 2523.) Al-Batsh said that they placed him in a military jeep, blindfolded him, and
transported him to the Ramallah facility. (/d. at 2525.) Upon his arrival at Ramallah, Al-Batsch
testified that “they put a bag over my head ~ a very rotten-smelling bag. And they tied my arms
behind my back and sat me down in a very tiny chair, one that is used in a preschool. And I
stayed there until the next morning, when the interrogator came and introduced himself.” (/d.)
Approximately six days after arriving at the Ramallah facility, Al-Batsh testified that he met
Major Haim. (/d, at 2526-27.) Al-Batsh described how Haim shook him and threatened to kill
him. (/d. at 2527-28.) According to Al-Batsh, Major Haim also threatened him “not to open my
mouth at all in the presence of the judge.” (/d. at 2536.) While detained for 76 days, he testified
that the Israeli authorities deprived him of sleep, subjected him to loud music, and kicked him
awake if he fell asleep. (/d. at 2529-32.) He was “occasionally placed in a tiny and very cold
cell” where he could not sleep. (/d. at 2532-33.) He said that he ate his meals in the bathroom,
not in the interrogation room, and never received food when he was in an interrogation room.
(dd. at 2544,)

Al-Batsh further testified that despite Haim’s threat, he complained to the Israeli judges
that they had not given him access to a shower and he consequently smelled “rotten.” (/d. at
2534.) He also showed the judges the physical scars on his body from the alleged abuse. (/d. at
2545.) Based on his complaints, the judges ordered that he have access to a shower, and ordered
his interrogators to take him to a doctor. (/d. at 2534, 2545-47.) After his release, Al-Batsh gave
a statement regarding his treatment to a Palestinian human rights group. (/d. at 2539.)

Al-Batsh does not know Defendant Salah, did not see Defendant Salah while he was

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Given all of these factors, the Due Process and Sixth Amendment confrontation rights
afforded to Defendant at a suppression hearing were not violated. Defendant received more than
ample protections.

5. Adverse Inferences

Nevertheless, because Defendant did not have access to certain information, the Court
will draw appropriate adverse inferences against the government. In weighing the evidence and
determining if the government has met its burden, the Court has drawn adverse inferences against
the government in appropriate areas where Defendant Salah did not have access to certain
information. As one court explained such inferences, these inferences are similar to “a thumb on
the scales” in Defendant’s favor. Securities & Exchange Comm’n v. Prater, 289 F Supp.2d 39,
50 (D. Conn. 2003).

Furthermore, the Court will not draw any inferences in favor of the government based on

this undisclosed information.

REDACTED PURSUANT TO CIPA
Because neither
Defendant nor his counsel had access to these classified materials, however, the Court will not
draw any inferences in favor of the government and will not permit the government to use this
classified information to meet its burden, The Court will not use the classified, ex parte evidence

to the government’s benefit. In sum, the Court will not rely on any of the ex parte evidence or

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General’s office the same thing. (/d. at 28.)
7. Small Chair and Hood

Defendant’s affidavit claims that the ISA forced him to sit in a “slanted child-sized
chair.” The first time Defendant apparently claimed that he was forced to sit in a small chair was
during his third visit with the consular’s office on February 12, 1993 - 18 days into his custodial
interrogation. At that time, he told the Consulate General’s office that “during his first two days
of imprisonment, he was hooded, tied with his hands behind him and forced to sit on a low stool.
Since that time he has been alone in a room, but otherwise relatively comfortable.” (Gov. Ex.
CDG at 21) (emphasis added.) Salah did not complain that the ISA continued to force him to sit
in the small chair beyond the first two days. The report from the Consulate General’s fourth visit
to Salah on February 19, 1993 did not contain any such complaints. Similarly, the Consulate
General’s records from visits on March 8, 1993, March 19, 1993, March 29, 1993, April 7, 1993,
April 16, 1993, April 23, 1993, April 30, 1993, May 7, 1993, May 13, 1993, and May 24, 1993
do not reflect any complaints from Defendant Salah regarding the ISA forcing him to sit ina
small chair. (Gov. Ex. CDG at 32-33, 36-37, 39-52.)

Defendant Salah did complain to Mr. Feldman at some point after April 1993 that the ISA
had forced him to sit in a small chair. (Gov. Ex. Feldman 3.) Similarly, on approximately
November 8, 1995 — while in Israeli custody — in connection with the extradition of Mousa
Mohammed Abu Marzook, his co-defendant in this case, Defendant Salah executed an affidavit
(the “1995 Salah Affidavit”) (Gov. Ex. 11/8/95 Salah Affidavit.) He executed that affidavit “on

behalf of Dr. Mousa Abu Marzook in response to Israel’s request that he be extradited to that

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themselves. Sleep deprivation, I think that the basic idea behind it is that people lose their
concentration. Their thoughts become disturbed. Their emotions becomes disturbed. So, they
become at the end at the — at the — mercy of the torturer because they are exhausted physically
and mentally by the deprivation of sleep.” (/d. at 2418.)
Dr. Sarraj further opined that the “hooding” alleged by Salah in his affidavit “is a form of
degradation ... because of the smell; but, mainly it is a form of isolating you from the rest of the
world, trying to cut down your sensory input.” (Jd. at 2414.) He also gave his opinion regarding
Salah’s allegation that he had to strip naked:
I think that this is one of the most undignified things for an Arab and a Muslim, to be
naked and other people look at him and laugh at him. This is kind of very
humiliating for us. I think it is humiliating for anybody; but, perhaps for the Muslim
Arabs, it’s much more painful.

(id. at 2420.)

In addition, Dr. Sarraj opined that Salah was not acting of his own free will when he
wrote the 53 page statement while imprisoned with the birds. (/d. at 2424.) Based on his partial
review of the taped conversation between Nadav and Defendant on March 18, 1993 and his
experience, Dr. Sarraj opined that Defendant Salah did not make any of the statements in this
session of his own free will. Instead, he testified that he believed Salah’s will had been
overborne. (/d. at 2425-26.) He also opined that Salah’s free will could not have been restored
while in custody. (/d. at 2431.)

During cross examination, Dr. Sarraj admitted that he had never examined Defendant

Salah, interviewed Defendant Salah, or conducted any psychological examination of him. (/d. at

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where the foreign officials’ conduct shocks the conscience of the court.
A. Joint Venture
The Seventh Circuit addressed the “joint venture” doctrine in the context of a motion to
suppress evidence seized by officials of the Grand Cayman Island Police when they took the
defendants into custody in the Grand Cayman Islands for various infractions of Grand Cayman
Island law. Marzano, 537 F.2d at 269-70. In Marzano, FBI agents accompanied the Grand
Cayman Island police officer “at various times during his investigation and search, but there
[was] no evidence that they took an active part in interrogating or searching the suspects or in
selecting evidence to seize.” Jd. at 270. The defendants sought to suppress the evidence seized
by the Grand Cayman authorities on the ground that the FBI did not have probable cause to arrest
the defendants in the Grand Cayman Islands, and thus the court must suppress any evidence
seized when the Grand Cayman Island authorities took them into custody. In addressing the
defendants’ argument regarding the FBI’s participation, the Seventh Circuit explained:
In United States v. Issod, 508 F.2d 990, 994 (7" Cir. 1974), cert. denied, 421 U.S. 916, 95
S.Ct. 1578, 43 L.Ed.2d 783 (1975), this court held that if information is obtained in a
search by a private individual absent probable cause, the information is usable if
Government agents did not participate in the search. The same standard applies when
foreign law enforcement personnel obtain evidence through such a search, Whether the
Government participated so as to render the search Government action must be
determined by examining the facts surrounding the search. United States v. Newton, 510
F.2d 1149, 1153 (7" Cir. 1975).
Marzano, 537 F.2d at 269-70.

The Marzano court upheld the district court’s denial of the motion to suppress the

evidence seized by the Grand Cayman authorities. It noted that “the law is clear that providing

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correct.” (Gov. Ex. Tape 4 English Translation SH, at 20.) During the majority of the March 18,
1993 interview, Nadav reviewed the handwritten statement with Defendant Salah in detail. Salah
added details to his handwritten statement, expanded on his statements, and corrected
misinformation in the handwritten statement. These actions — which were captured on audio-tape
as described below — support that Salah wrote the 53 page statement and that his statements in
that document were voluntarily made. If Defendant Salah had simply written down what the
birds allegedly told him to write, it does not make sense that he would not only agree that the
written statement was his statement, but add more details to what he had written. Salah’s tone
was one of surprise that the handwritten statement ended up in Nadav’s hands, suggesting that he
never thought the ISA would obtain a copy of it. Such statements support that Defendant wrote
it on his own free will.

During the course of the March 18, 1993 session with Nadav where Salah discussed his
handwritten statement, Salah wanted to know how Nadav obtained a copy of this statement. (Tr.
at 1147-48.) He asked Nadav, “Did you break into the prison to take it or do you have spies to
such an extent.” (/d. at 1147; Gov. Ex. Tape 2 English Translation SH, p. 60.) Salah even refers
to his handwritten statement as the “confiscated report.” (Gov. Ex. Tape 1 English Translation
SH at 43.) Salah again asks later in the session, “First of all, how did you seize these papers? |
mean did you break in or are there spies?” (Tr. at 1207; Gov. Ex. Tape 5 English Translation SH
at 50.) He added “I just want to know: spies or a break-in?” (Tr. at 1207.) In asking these
questions, Salah gave no indication that the birds had abused him or that he wrote the statement

involuntarily. Further, Salah never expressed doubt or concern over writing the statement.

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corroborates Nadav’s testimony that he typically ended his sessions with Salah with this
question.

These exchanges corroborate that Salah was acting on his own free will. They support
that Salah was not intimidated or broken down as of March 18, 1993 — 53 days into his custody.
They also counter his allegations of mistreatment.

c No Evidence of Coercion

In reviewing the transcripts, Nadav never threatened Salah, forced him to continue
talking, forced him to sit in a small chair, placed a hood on his head, or denied him the use of the
restroom.

Salah’s voluntariness is also corroborated by the evidence that Sa/ah insisted on
continuing the March 18, 1993 session despite several inquiries from Nadav about continuing it
at a later session. Salah told Nadav that he would sit with him and tell him everything on the
condition that they would do it once and Salah would not longer sit and talk about it. (Tr. at
1099.) Nadav clearly did not force him to continue. Nadav asked Salah at various times if he
wanted to stop the interview and continue at a later date. Salah said “No, no we should proceed
and be done with it.” (Gov. Ex. Tape 4 English Translation SH at 57.) Nadav simply
responded, “Alright. As you wish.” (/d.) At another point, Salah boldly told Nadav, “You are
not going to leave tonight until you finish.” (Tr. at 1133; Gov, Ex. Tape 2 English Translation
SH at 26.) As Nadav explained, he understood Salah’s comments “to say that he wouldn’t let me
finish the interrogation unless we go through all the reports or before we go through all the

reports. This is another example for the relationship and the atmosphere that we had. That it he

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any of his questions for Salah on anything regarding what someone suggested the FBI might be
interested in knowing from him or how they might have preferred the interrogation to be
conducted. (/d.) In fact, there is testimony that the United States did not believe that United
States citizens were involved in Hamas efforts against Israel. (Jd. at 441-42.)

Furthermore, there is no suggestion that the United States had any plans to prosecute
Defendant Salah in 1993. The lapse in time from his questioning in Israel to the prosecution in
this case suggests the opposite. In sum, there is no evidence of a joint venture between the
United States and Israel.

B. Shocks the Conscience

The Court does not condone torture in any form and there is no place for statements made
as a result of it in any American court. The Court strongly agrees with the recent statement by
Judge Lee from the Eastern District of Virginia:

[T]orture of any kind is legally and morally unacceptable, and ... the judicial system of the

United States will not permit the taint of torture in its judiciary proceedings. This Court

takes very seriously its solemn duty and unwavering responsibility to ensure that the

human rights guarantees of the United States Constitution and of those international

documents on human rights to which the United States is a signatory, including the U.N.

Convention Against Torture, are upheld in word, deed, and spirit.

Abu Ali, 395 F.Supp.2d at 379.

If the Court credited the events as told by Defendant Salah in his untested affidavit, there

is no doubt the Israeli officials’ conduct would shock the conscience of the Court. But the

credible, corroborated testimony of Nadav and Haim counter Salah’s statements on paper. Based

on the evidence before the Court, the ISA’s actions do not shock the conscience.

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I. The Statements at Issue

The statements at issue are as follows:

1.

Oral statements that Salah allegedly made to agents of the ISA after his arrest and
while in custody which are memorialized in the ISA’s activity logs;

Salah’s alleged statements on January 27, 1993, and February 21, 1993 to INP
Officer Meron Suleiman;

Salah’s alleged January 30, 1993 statement to INP Officer Hezi Eliyahu;

A handwritten signed agreement allegedly entered into between Salah and his
GSS interrogators;

A handwritten map allegedly made by Salah;

A handwritten statement allegedly authored by Salah between approximately
March 1, 1993 and March 4, 1993; and

Salah’s oral statements allegedly made and tape recorded at a March 18, 1993
session with an ISA interrogator.

Defendant allegedly made the majority of these statements to two ISA interrogators —

Nadav and Haim. Both Nadav and Haim testified in court at the suppression hearing. In

addition, Officer Eliyahu testified, but Officer Suleiman did not. Salah’s interrogation primarily

took place at the Ramallah interrogation facility in the West Bank.

Ill. The Indictment

The Indictment charges Defendant Salah with conspiring to violate the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. § 1962(d) (Count

1); knowingly providing and attempting to provide material support and resources to a Foreign

Terrorist Organization, namely, Hamas, in violation of 18 U.S.C. § 2339B (Count II); and



PUBLIC VERSION

document. (/d. at 380.) Similarly, the American Consulate General’s office noted in its reports
that Salah had complained that he did not understand a statement that had been written in
Hebrew. (Gov. Ex. Consulate Documents at 14; Def. Ex. Salah Con. Docs. at 37.) A March 3,
1993 account from the Consulate’s office reflects that Salah complained that he had been
pressured to sign “an additional statement which would amount to a confession.” (Gov. Ex.
Consulate Documents at 32.)

Given all of these factors and looking at the totality of the circumstances surrounding
these statements allegedly made by Defendant Salah to Policeman Suleiman, the government has
failed to meet its burden and the Court hereby suppresses both of the handwritten statements
allegedly made to Officer Suleiman.'* As evidenced below, the Court does not hold that a
statement written in a language the defendant does not understand can never be voluntary when
signed by the defendant. Under the totality of the circumstances in this case, however, the
government has failed to meet its burden regarding these two statements.

2. Salah’s alleged January 30, 1993 statement to INP Officer Hezi
Eliyahu

The government also seeks to admit a statement allegedly made to INP Officer Hezi
Eliyahu on January 30, 1993. (Gov. Ex. 1/30/93 Salah Statement.) That statement is also written

in Hebrew, a language that Defendant Salah does not understand.

'® Even though the Court has found that the government has not met its burden regarding
the January 27, 1993 and February 21, 1993 statements, it can still find subsequent statements
voluntary. See, e.g., Watson v. Detella, 122 F.3d 450, 454-55 (7" Cir. 1997); Holland v.
McGinnis, 963 F.2d 1044, 1050-51 (7" Cir. 1992); Holleman v. Duckworth, 700 F.2d 391, 396-
97 (7 Cir. 1983).

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as a result of a joint arrangement with a foreign government ... requiring that the information, the
arrangement, or both, are to be held in confidence” constitutes “foreign government
information.” Exec. Order No. 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995), § 1.1(d). See Salah,
412 F.Supp.2d at 919. “[T]he unauthorized disclosure of foreign government information is
presumed to cause damage to the national security.” Jd, § 1.1(c). Because Israel provided the
substance of the testimony of the ISA agents to the United States with the expectation that it
would be held in confidence, (R. 367-1, Ex. A.), the United States certified it as classified. (/d.,
Exs. A, B 94.) Salah, 412 F. Supp. 2d at 919.

The government agreed to waive the classification designation regarding the majority of
the information at the suppression hearing as to Defendant Salah and his counsel. Jd. at 917.
This evidence was admitted during the hearing in the presence of Defendant and his counsel.
The State of Israel and the United States did not waive the classified designation regarding a
discrete sub-set of information as to Defendant Salah or his counsel. The Court relied on CIPA’s
directive in developing the appropriate procedures to handle those portions of the suppression
hearing involving classified information.

Section 4 of CIPA provides, in relevant part:

The court, upon a sufficient showing, may authorize the United States to delete specified

items of classified information from documents to be made available to the defendant

through discovery under the Federal Rules of Criminal Procedure, to substitute a

summary of the information for such classified documents, or to substitute a statement

admitting relevant facts that the classified information would tend to prove, The court

may permit the United States to make a request for such authorization in the form of a

written statement to be inspected by the court alone.

18 U.S.C. App. 3, § 4. The plain text of Section 4 specifically permits a court to review

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verifying that “Mr. Mohammad Salah has been employed with the QURAN PROJECT since
January 1, 1991 as a Computer Analyst at a salary of $36,000 per year.” (Gov. Ex. 9/4/91 Salah
Employment Letter.)

Agent Bray testified, however, that Mr. Haleem testified before the Grand Jury that
Defendant Salah was never employed with QLI. (Tr. at 2625.) He did, however, work ona
volunteer basis at QLI, commencing in approximately 1990. (Jd. at 2635.) According to Mr.
Haleem, Defendant Salah approached him regarding the need for an employment letter for a
prospective landlord because he was moving from one apartment to another and needed the letter
to secure his lease. (/d. at 2625.) According to Agent Bray, Mr. Haleem testified that Salah
never told him that he needed the letter to obtain a loan from a bank. (/d. at 2626.)

The loan application also included signed, purportedly filed, federal tax returns for the tax
years 1988, 1989 and 1990. (/d. at 2611-12.) Agent Bray confirmed with the loan officer at
Standard Bank and Trust that Salah had provided him with copies of these tax returns. (/d. at
2612; Gov. Exs. 1988 Salah Mortgage Loan Tax Return, 1989 Salah Mortgage Loan Tax Return
and 1990 Salah Mortgage Loan Tax; Tr. 2612.) Agent Bray also testified that his investigation
revealed that Salah never filed a federal or state tax return for the tax years 1988 or 1989. (Tr. at
2613.) Indeed, both the Internal Revenue Service (“IRS”) and the Illinois Department of
Revenue indicated they had no record of Mr. Salah filing any personal income tax returns for
1988 or 1989. (/d.) The returns that Defendant provided in connection with the loan application,
however, reflect that he had income of $55,424 in 1988 and $51,830 in 1989. (/d. at 2614-15.)

The IRS never received any checks covering taxes for the amounts from Defendant. Further,

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14. Other ISA Interrogators

Defendant asserts that the government's failure to call the other ISA interrogators at the
hearing dooms any statements made by Defendant Salah to such ISA interrogators. The Court
disagrees.

The evidence clearly establishes that Nadav was the primary interrogator of Salah. He
was present at the majority of the interview sessions with Salah. There were, however,
significantly fewer sessions where Nadav was not present and the Court admitted into evidence
the Interview Logs reflecting such sessions. Regarding these sessions, Nadav unequivocally and
credibly testified that although he was not present during some of these sessions, the other ISA
interrogators informed him of what happened. (Tr. at 1455-59.) Both Nadav and Haim testified
that they never directed other ISA interrogators to physically or psychological abuse Defendant
Salah in any of the ways he has averred, they never observed anyone doing any of these things,
and they never heard of anyone doing them. (Jd. at 236-244, 1222, 1483.) Furthermore, Nadav
said that if any such things had happened, he would have known about them.

Nadav also explained that he was confident that Salah would have complained to him if
he had been mistreated, As described in detail below, both Nadav and Salah describe their
relationship as one of friendship. See infra at 122-25.

Furthermore, in an audio-taped conversation on March 18, 1993, Salah joked with Benny.
(Tr. 1171-74; Gov. Ex. Tape 3 English Translation SH at 30-33.) They joked about a possible
suicide operation and Salah teased Benny that “he’s the smart one” who can determine where it
is. (Tr. at 1172-73; Gov. Ex. Tape 3 English Translation SH at 32.) Salah further teased him

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3. Sa’doan

Nadav also testified extensively on his discussions with Salah regarding the burial site of
Sa’doan’s body. (See, e.g., id, at 1016-1031, 1036-37, 1046, 1076.) On approximately January
31, 1993, Salah informed Nadav that he had “at his disposal the map that describes the location
of the body of Sa’doan.” (/d. at 1018.) Nadav testified that it was very important to find the
body “because we have a custom that it is our obligation to bring soldiers — and, in general,
people, to be buried according to the custom of our religion of Israel.” (/d. at 1019.)

Nadav testified regarding Salah’s negotiations with the ISA over the burial location.
Nadav stated, “What he said is he told us he has the map in Chicago at his house and he was
willing to negotiate with us about the finding of the body, and only afterwards he would ask his
wife to send the map.” (/d. at 1019.) Nadav explained that Salah and the ISA then negotiated
and reached an agreement on this issue. (/d. at 1019; Government Exhibit Sa’doan Agreement.)
According to Nadav, Salah handwrote their agreement, setting forth the terms of their agreement
regarding the map and finding Sa’doan’s body. (Government Exhibit Sa’doan Agreement.)
Nadav testified that Prime Minister Rabin ultimately had to agree to the terms in the agreement
before the ISA could commit to them. (Tr. at 1021-22.)

In an effort to obtain the map which Salah said he had at home, he called his wife in the
United States. (Jd. at 1017-18.) Salah reported that his wife said that she either destroyed or
burned the map. (/d. at 1023.) Nadav testified that Salah attempted to re-create the map to
reflect where the body was buried. (/d. at 1024; Gov. Ex. Salah Handwritten Map 1.) After

drawing the map, the ISA took Defendant Salah out into the field with them to assist the ISA in

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PUBLIC VERSION

that the ISA, including himself, granted Salah’s request and permitted him to remain in the
interrogation rooms at the Ramallah facility at night during the week. (/d. at 962.) They also
provided him with blankets and a mattress in the room so he could sleep. (/d.) When the
interrogation facility at Ramallah closed on Friday and Saturday, the ISA transferred Salah to the
prison facility for the weekend. (Jd. at 1033.)

Nadav testified that Salah received special treatment such as spending the nights in the
interrogation rooms at his request for three reasons: 1) Salah was an American citizen; 2) he had
started cooperating from the beginning; and 3) “the click that we had since the outset of the
interrogation.” (/d. at 1370, 1502.) Nadav could not, however, recall if Haim gave him a
specific instruction to treat Salah differently because he was an American citizen. (/d. at 1370.)

Nadav testified that they took breaks throughout their interrogation sessions, (/d. at 972-
73, 1053.) He said that his conversation with Salah was “flowing,” and he was able to
communicate with him effectively. (/d. at 973, 994, 996.) According to Nadav, their
relationship was a good one. (Id. at 1027.)

Nadav testified that Salah was alert every time Nadav spoke to him. (Jd. at 992, 994, 996,
1009, 1027, 1033, 1045, 1067, 1069, 1396-97, 1658-60.) He further testified that Salah was
rested every time he questioned him as well. (/d. at 1009, 1033, 1045, 1046, 1053-54, 1065,
1069, 1396.) According to Nadav, he never intended to deprive Salah of sleep, and in fact, never
deprived Salah of sleep. (/d. at 1411, 1483, 1489, 1524, 1612.) Nadav explained that he
sometimes questioned Salah in the middle of the night “because of severe terrorist activity,

because of the nature of that activity, it was very important to receive information as soon as

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c Analysis

The government has not met its burden of proving by a preponderance of the evidence
that Defendant Salah voluntarily made either of these statements to Officer Suleiman. The
government did not call Suleiman as a witness at the hearing, and Haim’s general testimony
alone was insufficient to establish that Salah voluntarily made the statements because Haim did
not testify regarding how Suleiman obtained these statements. In essence, the government
effectively withdrew these statements by not putting in sufficient testimony.

In addition, these statements are both in Hebrew, a language that Salah did not speak or
read. Although the January 27, 1993 statement contains a purported signature of Defendant, no
witness with first hand knowledge testified regarding this signature or the circumstances
surrounding it, including whether the statement was read to Mr. Salah in a language he
understood before he signed it. The February 21, 1993 statement does not even contain his
purported signature, and Haim testified that Salah refused to sign the document. (Gov. Ex.
2/21/93 Salah Statement.) Further, Nadav testified that the next day — February 22, 1993 — Salah
told him that he was concerned because he signed a document without having read it. (Tr. at
1077-78.)

Moreover, Salah has consistently complained about having to sign documents that he did
not understand because they were prepared by Suleiman in Hebrew. During the mini-trial, Salah
told the military tribunal that “Policeman Maron” wrote many things in Hebrew “around 20", 21*
of February,” that Salah did not understand. (Gov. Ex. Salah Zuta Testimony Translation SH at

379-80.) Because he did not understand them, Salah testified that he refused to sign the

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1757.) Eliyahu testified that after he completed writing each page of the statement in Hebrew, he
translated what he wrote to Salah for his confirmation that each sentence in the statement was
accurate. (/d. at 1730, 1731-1732, 1733, 1734.) If Salah wanted him to change anything, he
changed it. (/d. at 1732.) Once he completed this process, Eliyahu had Salah sign the bottom of
each page. (/d. at 1731-39.) Salah signed all of the pages in English, except he signed page 4 in
Arabic after Eliyahu asked him to do so. (/d. at 1736-37.) During the questioning, Salah
expressed concern to Eliyahu about the people whose names he was providing to him. (/d, at
1739-40.)

Eliyahu further testified that he never saw anyone verbally or physically abuse Salah, and
that Salah never complained about any such treatment to him. (/d. at 1747-49.) Eliyahu never
heard about anyone doing such things to Defendant Salah. (/d. at 1749.) Eliyahu also testified
that he never deprived Defendant of the use of a bathroom and never had him sit in a child’s
chair or saw him sitting in such a chair. (/d. at 1748.) Similarly, he did not subject him to
deafening music, subject him to extreme temperatures, threaten to blind or maim him, threaten to
have him sexually assaulted, kick him, slap him, force him to stay awake, strip him naked,
threaten to photograph him naked, or threaten to harm his family. (/d. at 1746-49.)

D. FBI Special Agent E.W. Priestap

FBI Special Agent Priestap, who currently works at the FBI’s Headquarters in
Washington, D.C., testified regarding an interview he conducted of Majed Razek, a foreign
service national at the American Consulate in Israel. (/d. at 1925-28.) Agent Priestap previously
was assigned to the FBI counter-terrorism squad in Chicago. (/d. at 1926.) While on that squad,

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signs of abuse corroborate the testimony of Nadav and Haim.

Further, Salah appeared before a military court in Hebron during the bird operation on
approximately March 4, 1993. (Tr. at 498-99; Gov. Ex. Court Records Translation SH at 15011-
12.) Although Salah complained about Haim’s alleged misconduct at this hearing, he did not
complain about the birds or his treatment by the birds. (/d.) The lack of any such complaints
regarding the birds corroborates the other evidence in this case that the birds did not abuse
Defendant Salah.

On March 8, 1993 — immediately after the birds — Salah again met with the American
Consulate’s office. He did not complain about the birds or any treatment by the birds. (Def. Ex.
Salah Con. Docs, at 73.) Notably, he did not hesitate to complain to the officer that Haim had
pressured him to sign a statement written in Hebrew. (/d.) This suggests that, if the birds had
threatened him as Salah now alleges, he would have complained about them too. According to
the report, however, he did not lodge any complaints regarding the birds.

The Court also finds significant that Defendant Salah never complained to Mr. Feldman
about his treatment with the birds prior to the mini-trial or suppression hearing in Israel. In fact,
Salah never even told Mr. Feldman about this handwritten statement prior to that time. Mr.
Feldman testified that Defendant Salah did not tell him in advance of his suppression hearing or
mini-trial in Israel that he had given a handwritten statement to the birds. Mr. Feldman credibly
testified that he first learned of Salah’s handwritten statement and his bird experience during the
cross examination of one of the ISA witnesses during the mini-trial in Israel. Although Mr.
Feldman surmised that Salah did not know that he had been with the birds, the evidence refutes

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examine these witnesses’®, He further contends that the Court’s review of such testimony ex
parte and in camera violated both his Fifth and Sixth Amendment rights.
IL Legal Standards

A. Voluntariness

A confession is inadmissible under the Fifth Amendment’s Due Process Clause unless the
government can show by the preponderance of the evidence that the confession was voluntary.
Lego, 404 U.S. at 489, 92 S.Ct. at 627 (holding that prosecutor must prove voluntary confession
by preponderance of the evidence). See also United States v. Dillon, 150 F.3d 754, 757 (7" Cir.
1998). Under the Fifth Amendment, there is “no talismanic definition of ‘voluntariness,’
mechanically applicable to the host of situations where the question has arisen.” Schneckloth v.
Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). Rather, a
confession satisfies the requirements of the Fifth Amendment if, after examining the totality of
the circumstances, the Court is satisfied that the confession was the “product of rational intellect
and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics
calculated to overcome the defendant’s free will.” Watson v. DeTella, 122 F.3d 450, 453 (7" Cir.
1997). See also Arizona v, Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1251-52, 113

L.Ed.2d 302 (1991); Dillon, 150 F.3d at 757. The Court must determine, under the totality of the

© Defendant also reargues that the partial closing of the courtroom to receive classified
information violated his right to a public suppression hearing. The Court has already ruled
regarding this issue in a detailed opinion and will not revisit the issue here. Salah, 412
F.Supp.2d at 924-26. Furthermore, the majority of the testimony from the closed hearing has
since become available through the publicly filed transcripts.

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The bird drill involved a group of Palestinian collaborators who “simulate terrorist command
centers in prisons.” (Tr. at 478.) The birds created a mock command center in the prison, and
Salah entered that “command center” when he was transferred to the facility. (/d.) Salah spent
approximately four to five days with the birds. During this time, he wrote the 53 page
handwritten statement. Salah does not challenge that he wrote the statement in Arabic; he claims
that he did not voluntarily write it because of the threats and abuse from the birds.

Haim credibly testified regarding the structure and monitoring of the birds and their
treatment of Salah while he was in custody with them. They used Palestinian prisoners who had

been convicted of non-violent crimes.

REDACTED PURSUANT TO CIPA

Significantly, Salah confirmed to Nadav that he wrote this statement, and even corrected
inaccurate information in the statement. At one point, he told Nadav, “Everything I wrote here is

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in nature. The government provided a well-substantiated showing that the information at issue
was classified and highly confidential. See Salah, 412 F.Supp.2d at 919, 925-26. The classified
information goes directly to national security interests and foreign relations with the State of
Israel. Jd. at 926. These compelling reasons justify the limited withholding of classified
information in the context of this suppression hearing given all of the other protections afforded
to Defendant Salah.
4. Striking Testimony

Defendant also asks the Court to strike the testimony of the ISA officers in their entirety.
A court has broad discretion in striking a witness’s testimony. Zapata, 871 F.2d at 624.
Although courts have not addressed the precise issue here where a witness does not answer a
question while testifying on the basis that an answer calls for classified information, the Court
finds instructive the Seventh Circuit’s teachings in the context of a witness’s refusal to answer on
Fifth Amendment grounds. “[W]hen a witness refuses to answer questions based on fifth
amendment privilege, striking the witness’s entire testimony is an extreme sanction.” Jd.
(citations and quotations omitted) (emphasis in original). “When a witness’ refusal to answer
prevents defendant from directly assailing the truth of the witness’ testimony, the court should
strike at least the relevant portion of the testimony.” /d. at 623-24 (citations and quotations
omitted.) However, “should the witness’ refusal to answer ‘relate only to collateral matters, such
as credibility, the danger to the defendant is considerably less and the witness’ testimony need
not be stricken.” Jd. (quoting Untied States v. Humphrey, 696 F.2d 72, 75 (8" Cir. 1982)). “It is
within the district court’s discretion to strike a balance between the defendant’s confrontation

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at 1051.)
5. Birds

Nadav also testified about Salah’s experience with the birds.

REDACTED PURSUANT TO CIPA (Id. at 1084.)

During the time that Defendant was with the birds, Nadav was on personal leave for 10 days
because his father had passed away. (Id. at 1084-85.) When Nadav returned from his leave, he
learned that Salah had authored a lengthy hand written statement in Arabic while with the birds.
(Ud. at 1085, 1576.) Nadav testified that March 11, 1993 was the first date that he saw Defendant
Salah since his return from personal leave. (/d. at 1088-89.) According to Nadav, Salah stood up
when Nadav entered the room and shook his hand. (/d. at 1089.) Nadav described Salah as alert
and well rested. (/d.) Nadav also said that Salah did not complain to him about his time with the
birds or anything else. (/d, at 1089-90.) Nadav testified that Defendant Salah never told him that
the birds had threatened him. (/d. at 1223.) Instead, Nadav said that Salah was “really taking
interest in what I’ve been through.” (/d, at 1090.) Nadav testified:

In general, I would like to say that the type of relationship that I developed with him
throughout the interrogation was very deep. We used to talk about personal matters. He
used to tell me things, I would tell him things. I can say if it wasn’t in the framework of
an interrogation, we could have been good friends.
(Id, at 1089.)
6. March 18, 1993

Nadav testified that Salah did not know as of March 16, 1993 that Nadav had a copy of

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PUBLIC VERSION

however, would not let him deliver a letter for his family to the Conoff. He said the food is
alright; sometimes he receives prison staff food. On weekends he is placed in a cell with another
prisoner.” (Gov. Ex. CDG at 021-22.) Notably, at that time, Salah did not assert any current
mistreatment.

The American Consulate’s office again met with Salah on February 19, 1993, March 8,
1993, March 19, 1993, March 29, 1993, April 7, 1993, April 16, 1993, April 23, 1993, April 30,
1993, May 7, 1993, May 13, 1993, and May 24, 1993. (Gov. Ex. CDG at 32-33, 36-37, 39-52.)
The reports from these meetings do not reflect any complaints from Defendant Salah regarding
physical abuse, and corroborate the testimony of Haim and Nadav. The report from March 8,
1993, notes that Salah complained that Haim threatened to beat him if he did not sign a
confession, but it does not contain any complaints of physical abuse.

10. Alleged Abuse by Haim

Most of Salah’s specific allegations regarding threats were directed at Haim. The
documents and the testimony, however, reveal that Haim did not spend a significant amount of
time with Defendant Salah. Haim also credibly denied the allegations against him during his
testimony.

Defendant also claims now that Haim physically abused and beat him. Yet, Mr. Feldman
testified that Defendant Salah did not tell him in 1993 about such abuse. He testified that Salah
had told him, at most, that Haim had slapped him.

Furthermore, on March 4, 1993, Salah complained to a military judge about Haim. The
allegations were investigated, Haim was interviewed, and, as Haim testified, the allegations were

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explained to Defendant Salah that he was “under interrogation by the ISA.” (/d. at 318, 769-70.)

Haim assigned Nadav as the case officer for Defendant Salah because he “was the best
interrogator on the team,” and “from the standpoint of his character, he was suitable for
Muhammed Salah.” (Jd. at 342.) Specifically, “Nadav in his character is a very quiet person. He
is very logical.” (/d.) Based on the information provided by Salah at the first meetings, Haim
understood Salah to have a significant rank within the Hamas organization and to be a “senior
activist in the Hamas.” (/d. at 347-48.)

4. Order from Head of ISA

Haim testified that he received a direct order regarding Salah from the head of the ISA —
Ya’akov Perry — directing Haim to “treat Muhammad Salah differently than other detainees...
We were not allowed to use covering the head, a small chair, nor waiting. And the only thing we
could do was frontal interrogation.” (/d, at 265.) Frontal interrogation, according to Haim, is “a
conversation between the interrogator and the interrogee that takes place in the interrogation
room.” (/d. at 307, 341.) Haim stated on cross examination that he did not speak directly to
Perry, but received the Perry directive from Abu Hasan and possibly Abu Daoud, both of whom
were Haim’s supervisors. (/d. at 666-68.) Because of these instructions, Haim was present when
Salah first arrived at the Ramallah interrogation facility on January 25, 1993 to ensure that the
interrogation team followed these instructions. (/d. at 313.)

Furthermore, Haim testified that it was unusual to detain an American citizen and “even
then, in ‘93, the U.S. was a power.” (/d.) Because Salah was a United States citizen the ISA
treated Salah differently. (/d. at 343-44.) Also, Haim said that the ISA treated Salah differently

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PUBLIC VERSION

right and the witness’ privilege against self-incrimination, and shall be reversed only upon a
finding that the district court abused its discretion.” United States v. Kaufmann, 985 F.2d 884,
898 (7" Cir. 1993) (citations omitted).

Here, the questions to which Haim and Nadav asserted the classification privilege did not
pertain to Defendant’s guilt or innocence or directly to the treatment of Defendant Salah while
the ISA interrogated him in 1993. Further, they did not pertain directly to the scope of the direct
examination — the treatment of Salah while he was in the custody of the ISA. Instead, they
related to

REDACTED PURSUANT TO CIPA

This testimony goes to the credibility of Haim and Nadav,

REDACTED PURSUANT TO CIPA

Furthermore, the trier of fact — the Court —
heard this testimony outside of their presence. As discussed infra, to the extent that it benefits
Defendant, the Court will consider it for that purpose. Additionally, defense counsel extensively
cross examined both Nadav and Haim. This extensive cross examination provided Defendant

with ample opportunity to probe and question each witness’s credibility.

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could have attempted to attack his credibility on cross examination by inquiring into the events
surrounding his mortgage application and tax returns. Fed. R. Evid. 608(b). Accordingly, the
admission of Agent Bray’s testimony was consistent with Rule 806.

Even without Agent Bray’s testimony, Salah’s affidavit is questionable given its
inconsistencies with Salah’s prior statements and the other evidence presented at the suppression
hearing. As described above, Defendant’s affidavit avers a pattern of sleep deprivation, sensory
deprivation, physical abuse, psychological abuse, and threats of physical violence by his ISA
interrogators that broke his will and forced him to make involuntary statements to the ISA
interrogators. As noted in this Opinion, Salah’s version of the events has progressed since 1993.

Both Haim and Nadav consistently denied that Defendant was subjected to any of the
extreme actions set forth in his affidavit. The Court credits their testimony regarding these areas.
Mr. Feldman’s testimony tends to corroborate certain averments in Defendant’s affidavit
regarding actions taken by the ISA interrogators because Salah complained regarding some of
these alleged abuses in 1993 or 1994 to Mr. Feldman. Mr. Feldman admitted that he could not
say what actually happened because he was not present when the ISA questioned Salah and he
did not represent Mr. Salah at that time. Mr. Feldman even questioned the validity of
Defendant’s allegation regarding the threat of Haim photographing him naked. Mr. Feldman also
admitted that he had never represented an American citizen detained by the ISA, thus he did not
have any experience with how the Israeli authorities treated Americans. Weighing this against
Haim’s and Nadav’s credible testimony and the totality of the circumstances based on the

evidence before the Court, the government has met its burden.

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facility. (7d. at 215.) In January 1993, Haim served as the head of the investigating
“interrogation team” at that facility. (/d.) Interrogation teams had “the responsibility for
investigating terrorist activities, to prevent terrorist activities in the geographical area where it is
in charge.” (/d. at 219-220.) Haim described his job as “protecting the State of Israel and its
democratic regime from terror threats, sabotage, espionage and political sabotage ... and treason.”
(id. at 833.) Haim’s responsibilities in 1993 included “starting reviewing the files for
interrogation, deciding whether to accept an interrogated — that is, an arrest; later, planning the
interrogation; division of labor among the members of the team regarding the investigation,
deciding some central decisions during the interrogations; and deciding to end an interrogation,
of course.” (/d. at 224.)

Ramallah is located in the area referred to as the West Bank. (/d. at 224.) Haim

explained that the Ramallah facility was part of a military base. (/d. at 264.)

REDACTED PURSUANT TO CIPA

Haim testified regarding the importance of obtaining accurate information from an
interrogee in order to prevent future terrorist activities. (Jd. at 220-23.) If the ISA interrogators
did not obtain accurate information and focused on the wrong people, Haim said that it “makes
[them] lose twice, so to speak. First, the true terrorists continue with their activities and kill

innocent people. And the second thing, concentrating on the wrong people is, of course,

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PUBLIC VERSION

agreed to my conditions, and treated me very well. ... I said that I don’t want my people to think
that I produced the body in order to release myself.” (/d. at 375.) He admitted to the military
tribunal that he had entered this agreement with the hope of having his conditions met.

Finally, the testimony surrounding the finalization of this agreement, as well as the terms
of the agreement itself (whether or not they are true), reflect that Salah was negotiating with the
ISA over the information he had — namely, the purported location of the burial of Sa’doan’s
body. This negotiation and the ultimate agreement that the Israelis would release certain female
prisoners and return the money they seized to Salah demonstrate that Salah’s will was not
overborne. He was negotiating with the ISA officials, evidencing his strong mental state. Mr.
Salah was attempting to satisfy the conditions of the agreement, and he was gaining something to
his benefit in exchange for information. Moreover, that a negotiation took place at all and that
ISA officials entered into an agreement with Defendant Salah reflects that Salah’s statement was
not the produce of abuse, but of his own free will. Given all of these circumstances, the
government has met its burden of establishing by a preponderance of the evidence that Salah

voluntarily made this statement.

4. A handwritten statement generated by Salah between March 1, 1993
and March 4, 1993
The government seeks to admit a 53 page, handwritten statement written by Salah 1

between approximately March 1, 1993 and March 4, 1993, while he was incarcerated with “the
birds.” (Gov. Ex. Salah Handwritten Statement.)

Both Haim and Nadav testified regarding Defendant Salah’s interaction with the birds.

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and inconsistencies in the testimony. The Court closely assessed the demeanor of each witness,
including his body language, tone of voice, facial expressions, mannerisms and other indicative
factors.

ISA Interrogators Haim and Nadav were both significant witnesses for the government
given their respective roles in questioning Defendant Salah, especially Nadav. During the
extensive testimony from these witnesses — including the rigorous and lengthy cross examination
— the Court had the opportunity to evaluate their demeanor and credibility. Based on these
observations, the corroborating documentation, and the quality of the evidence, the Court finds
the testimony of Haim and Nadav extremely credible and credits their testimony. The Court
found them both forthright and truthful. Their demeanor remained unchanged during direct and
cross examination. Haim was direct and responsive. Nadav remained soft spoken and mild
mannered throughout his testimony. Indeed, the Court noticed Nadav’s genuineness and
sincerity throughout his testimony. He was both candid and thoughtful in his responses. Haim
and Nadav both held up well under extensive cross examination. Moreover, their testimony was
consistent in material respects and corroborated by the contemporaneous documentation and
other evidence.

1 Salah’s Affidavit

Defendant Salah submitted his version of the events through a sworn affidavit. He did
not testify, and thus his assertions were not subjected to cross examination. Nor did he provide
the Court with the opportunity to assess the demeanor of his assertions while testifying. Given

the credibility of Nadav and Haim, and the evidence corroborating their testimony, the Court

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In contrast to the other statements written in Hebrew, Officer Eliyahu testified at the
suppression hearing. Officer Eliyahu testified that he took the statement at issue from Defendant
Salah on January 30, 1993. Specifically, Officer Eliyahu testified that he came to the Ramallah
facility in response to a call the evening before. Officer Eliyahu questioned Salah in Arabic —a
language they both speak, and wrote the January 30, 1993 statement based on the information
Salah provided to him. Officer Eliyahu credibly testified that he wrote down “word for word”
what Salah said to him in the six page statement at issue. Although he wrote the statement in
Hebrew, Eliyahu credibly testified that after he completed writing each page of the statement, he
translated what he had written for Salah’s confirmation. He explained that he changed anything
in the text that Salah told him to change. After completing this process, Eliyahu testified that
Salah willingly signed the bottom of each page of the statement, and Salah’s signature in fact
appears on the bottom of each page.

Furthermore, Nadav met with Salah on January 30, 1993. During that session, Salah did
not complain to Nadav regarding his session with Eliyahu or about signing the statement. None
of the evidence in the case reflects Salah complaining specifically about Officer Eliyahu. His
specific complaints regarding the statements signed in Hebrew are directed at Officer Suleiman
only.

In looking at the totality of the circumstances, the government has met its burden of
proving by a preponderance of the evidence that Defendant Salah voluntarily made this
statement. See United States v. Benitez, 920 F.2d 1080, 1084 (2d Cir. 1990) (defendant gave oral
statement to agents that was “translated and transcribed” by a Spanish-speaking agent); United

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Moreover, the ISA Interview Logs reflect that immediately before and/or after his
questioning during these early morning hours, Salah was sent to “rest” for substantial periods of
time — over 7 hours between his January 27 and 28 questioning (Gov. Ex. 1/27/93 6:00 p.m.),
over 20 hours between January 28 and 29 (Gov. Ex. 1/28/93 2:00 p.m.), over 31 hours between
January 31 and February 2 (Gov. Ex. 1/31/93 3:00 p.m.), over 10 hours on February 7 (Gov. Ex.
2/7/93 11:30 a.m.), and for over 16 hours on February 8 (Gov. Ex. 2/8/93 7:30 a.m.). As both
Haim and Nadav testified, they permitted Salah — as he requested — to rest in one of the
interrogation rooms with a mattress and blankets. He also had periods of time in “wait” where he
was unrestrained.

As Nadav asserted, the ISA had legitimate reasons to question Salah at times during the
middle of the night — “because of severe terrorist activity, because of the nature of that activity,
it was very important to receive information as soon as possible in order to prevent another act of
killing.” (/d. at 1489.) Nadav further added, “since the character of this investigation has to do
with prevention of terrorist attacks, we were obliged to interrogate him at this hour. This is why
these are not odd hours. We interrogate only when there is a need to interrogate.” (/d. at 1524.)
Nadav added, the “need was to receive all of the information regarding his terrorist activities as
fast as possible in order to be able to arrest people and prevent terrorist attacks from happening.”
(/d.) Given that Salah had substantial rest periods either immediately before or after (or both)
these sessions, the Court does not find that the questioning time periods amount to sleep
deprivation. This is especially so given Nadav’s credible testimony that Defendant Salah was
rested and alert when he spoke with him. Therefore, based on the totality of the circumstances,

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would produce involuntary confession).

Law enforcement officials, however, are permitted to “play on a suspect’s ignorance,
fears and anxieties so long as they do not magnify these emotionally charged matters to the point
where a rational decision becomes impossible.” United States v. Sablotny, 21 F.3d 747, 752 (7"
Cir. 1994) (citations omitted). Indeed, the “law permits the police to pressure and cajole, conceal
material facts, and actively mislead.” United States v. Rutledge, 900 F.2d 1127, 1131 (7" Cir.
1990). The Seventh Circuit has recognized that “[c]ustodial interrogation is permitted even
though inherently coercive and doubtless responsible for many a confession, and in addition the
courts allow interrogators in these already coercive custodial settings considerable latitude in
playing on the guilt and fears of the person interrogated in order to extract a confession that he
will shortly regret having given.” Johnson v. Trigg, 28 F.3d 639, 641 (7" Cir. 1994). See also
United States v. Ceballos, 302 F.3d 679, 695 (7" Cir. 2002).

It is appropriate for law enforcement to promise to bring a defendant’s cooperation and
statements to the attention of the prosecutor. Dillon, 150 F.3d at 758; United States v.
Westbrook, 125 F.3d 996, 1005 (7" Cir. 1997). The Seventh Circuit has also held that an
officer’s statements during an interrogation regarding the threat of jail time were not coercive
because the police “are allowed to play on a suspect’s ignorance, fears and anxieties so long as
they do not magnify these emotionally charged matters to the point where a rational decision
becomes impossible.” Sablotny, 21 F.3d at 752 -753 (citations omitted).

Second, the Court examines the conditions of the interrogation to determine whether the

confession was voluntary. The Court considers such factors as the duration, location and

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PUBLIC VERSION

did not read or understand. (/d. at §§ 13, 14, 18.) Salah avers that on two occasions, an Israeli
agent came into his interrogation room and demanded that he sign a statement written in Hebrew.
Salah did not know what the statement said. On both occasions, he signed the statement with the
hope that it would “end the nightmare.” (/d. at § 18.) The third time an Israeli agent attempted to
have him sign such a statement, however, Salah refused to sign it and was subsequently
threatened by Haim. (Jd. at § 21.)

According to Salah’s affidavit, his interrogators transferred him to a prison cell in
Ramallah with other “prisoners” who “claimed to be high ranking members of various resistance
groups,” but were in fact “birds” — agents who work with the Israeli authorities. Salah claims he
wrote a two to three page truthful statement while in the birds’ cell explaining that he came to the
Occupied Territories to deliver money for humanitarian purposes. (/d, at 123.) Subsequently,
the Israeli authorities transferred Salah to a prison in Hebron. (/d, at ]24.) While there, Salah
was placed in a cell with 15 to 20 Palestinian prisoners or “birds” who allegedly threatened him,
held a razor to his face, tied his hands and feet to the corner of two bed posts in a position known
as “zawiya,” covered his head, hit and kicked him, threatened to rape him, and forced him to sit
on “a blue bow! with a rounded and pointed bottom.” (Jd. at §§ 24-27.) While at Hebron, Salah
claims that he was forced to write a statement. In his words:

These men would take what I wrote and bring back to me written questions and
information that they wanted me to include in additional written statements. I
eventually included in a written statement all the information that they provided to
me in writing. The written questions and information that they presented to me made

it clear what it was they wanted me to say. I knew that the only way to save my life
and protect myself from further harm was to do what they wanted me to do.

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REDACTED PURSUANT TO CIPA

During his time with the birds, Haim testified that Salah wrote a long statement regarding
his activities and knowledge of Hamas activities, including new information that he had not
previously provided to the ISA interrogators. (Jd. at 494-95; Gov. Ex. Salah Handwritten

Statement.)

REDACTED PURSUANT TO CIPA

On March 4, 1993 — in the middle of the bird operation — Salah had a court appearance

before the military court. Haim testified that after that appearance, Haim received a protocol

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PUBLIC VERSION

Muslim Society), Mohammed Salah, 00 C 2905 (Keys). (Gov. Ex. Feldman 3.)

Salah told Mr. Feldman that Haim had slapped him, but not beaten him. (Tr. at 2335-36.)
Mr. Feldman opined that sleep deprivation was the primary method used against Salah while he
was in custody. (/d. at 2241.) Mr. Feldman added that he had never heard other prisoners
complain that the ISA officials stripped them naked and threatened to photograph them, thus he
questioned this assertion by Salah. (Jd. at 2329-30.)

Mr. Feldman opined that based on these conditions, Salah’s self-determination was
impaired while he was in custody. (Jd. at 2267-69.) Mr. Feldman admitted, however, that he
was not present when the ISA officials allegedly took any of these actions, nor did he represent
Salah at that time, and he admitted that he could not testify with any certainty as to what actually
happened to Salah during his questioning. (Jd. at 2334, 2358-59.)

Mr. Feldman testified that Salah did not convey to him that a group of soldiers drove him
around for many hours after his arrest and repeatedly stomped on Defendant Salah with their
boots, including stomping on his body, head and groin area. (/d. at 2345.) Nor did Salah tell Mr.
Feldman that these soldiers hit him with their rifle butts in his head, groin and all over his body
while he lay on the floor of their vehicle. (/d.) Mr. Feldman recalled Salah telling him only that
the soldiers treated him “very roughly during the arrest and the trip to Ramallah.” (Jd. at 2345-
46.)

Mr. Feldman testified that he never saw any bruises or cuts or marks on Salah, indicating
that the ISA officials had beaten him. (/d. at 2335.) Mr. Feldman noted, however, that he never
looked for such marks because Salah did not “complain to me that he got such beatings that left

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PUBLIC VERSION

charging him. (/d. at 2562-63.)

Mr. Qatamesh is not an American citizen. (Jd. at 2569.) He also is not a member of
Hamas. (Jd. at 2569.) Mr. Qatamesh knows Defendant Salah’s brother, who was present at the
beginning of the hearing before Mr. Qatamesh’s testimony. (/d. at 2572.) Mr. Qatamesh denied
that he had spoken with Defendant’s brother about his case. (/d.)

Qatamesh testified that he thought he met Salah in 1994 in “the courtyard of the jail”
where the detainees referred to him as “the American, Abu Ahmad.” Qatamesh did not,
however, talk to Defendant Salah. (/d. at 2571.)

K. Special Agent David Bray’

In rebuttal, the government called FBI Supervisory Special Agent David Bray. Agent
Bray has been an FBI agent for nine years, and has been involved with the investigation of
Salah’s case since April 2002. (/d. at 2607.)

Agent Bray testified regarding a 1991 mortgage loan that Salah had obtained for his home
from Standard Bank and Trust based on a fraudulent loan application. (Gov. Ex. 8/21/91 Salah
Mortgage Loan Application.) The loan application, which contained Defendant’s signature,
represented that Defendant Salah’s base employment monthly income from the Quranic Literacy
Institute (“QLI”) in Oak Lawn, Illinois was $4,000, plus $1,000 in commissions. (Tr. at 2610-

11.) Salah provided the loan officer with a September 4, 1991 letter from Amer Haleem

° Defendant objected to the admission of this testimony at the suppression hearing. As
described in more detail below, the Court admitted it consistent with Federal Rule of Evidence
806.

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PUBLIC VERSION

Many of the documents sought by Defendant are not in the custody or control of the United
States government. See Fed. R. Crim. Pro. 16(a)(1)(E) (requiring discovery items “within the
government’s possession, custody, or control”). See also Mejia,__ F.3d at __, 2006 WL
1506853 at *7. Nonetheless, Defendant’s argument that the government has failed to produce
the file jacket from Defendant’s ISA file and any Israeli documents regarding Judith Miller’s
observation of Defendant while in ISA custody fails.'> The government, after conferring with
Israeli authorities during the suppression hearing, confirmed that no such documents exist.
Defendant also argues that the government failed to produce documents concerning the treatment
of other Israeli detainees who were American citizens. Again, the prosecutor represented to the
Court that he reviewed the State Department files regarding any such detainees, and none of the
documents were discoverable within the confines set by the Court. Accordingly, the Court will
not draw any adverse inferences against the government based on these discovery arguments.

B. Findings of Fact

The Court will make specific findings pertaining to the totality of the circumstances
surrounding Defendant Salah’s oral statements to the ISA interrogators during the period of time
he was questioned in 1993, then address the six specific statements upon which the parties
focused in their briefing and at the hearing. The Court has carefully and deliberately weighed all
of the evidence in the case in assessing the totality of the circumstances and the voluntariness of

Defendant’s statements. In doing so, the Court has evaluated and considered the consistencies

'5 Defendant repeatedly raised the issues of files pertaining to Judith Miller, yet conceded
that he has not subpoenaed Judith Miller for her files.

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subsequently shortened that period and permitted an attorney to see Defendant Salah, although
Haim could not specifically recall by how much he shortened it. (Tr. at 827-28.)

In addition, Haim testified regarding the access of American citizens to American
Consulate General Officials. Haim explained that the head of the ISA determines whether a
foreign citizen is permitted to have visits with a consulate official. (/d. at 363-64.) Haim further
testified that he recommended to his supervisors that they permit Salah to meet with the
American Consulate. (/d. at 365.) On January 29, 1993, according to Haim, the ISA agreed to a
consular visit for Defendant Salah on January 31, 1993. (/d. at 362-65, 843, 845.) On January
31, 1993, Salah met with an official from the American Consulate at the Ramallah prison facility.
(Id. at 365.) Haim testified that ISA officials were not present in the room during consular visits,
including the January 31, 1993 visit. (/d. at 368.) He further testified that the consulate officials
did not provide the ISA with any details of what the detainee informed them. (/d.)

7. Access to the Military Court

Under Israeli military law, the ISA could wait 18 days before taking a detainee before a
military court. (/d. at 419.) Haim testified that Defendant Salah had his first court appearance on
February 2, 1993 — the seventh full day of his interrogation. (/d.) Haim testified that he had
Defendant Salah brought before a judge before the law required him to do so because he was an
American citizen and “we wanted a judge to see him as early as possible and to show that he’s
not being detained for a prolonged period of time.” (/d. at 420-21.) Haim testified that police
officer Meron Suleiman walked Defendant Salah from the Ramallah facility to the courthouse for
his February 2, 1993 appearance. (/d. at 423-27; Gov. Ex. Newspaper Photographs Group; Gov.

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PUBLIC VERSION

Salah’s affidavit further avers that the ISA interrogators — including Haim, Nadav and
Benny ~ forced him to stay awake for over a 48 hours. (/d. at §9.) During this time period,
Salah claims they placed a “filthy, foul-smelling hood” over his head, handcuffed him behind his
back, and forced him to sit in a “slanted child-sized chair in a position that caused excruciating
pain between [his] shoulder blades and in [his] back” ~ a technique known in Israel as “waiting
periods.” (/d. at J] 9-10.) While in this position, he claims that he was subjected to “deafening
music and the sounds of people screaming in pain,” and that someone slapped him on his head
and face. (Jd. at J 10.) In addition, Salah claims they handcuffed him to a metal bar behind his
back in a “dark, freezing, closet-sized cell in which [he] could not stand upright, sit or lie down.”
(id)

In his affidavit, Salah asserts that the ISA interrogators deprived him of sleep. (/d. at §]]
5,9, 13, 15, 17.) They also allegedly placed him in conditions that were not conducive to
sleeping and did not provide him with a blanket or mattress while he was in a freezing cell. (/d.
at [9 9, 15.)

Salah further avers that the ISA interrogators — especially Haim — threatened him
repeatedly. (Jd. at (12, 15, 16, 17, 19, 21, 28.) He claims that they threatened him with
violence, including rape, blinding, maiming, and the murder of his family. (/d. at ff 12, 16.)

According to the affidavit, Haim laughed at Defendant when he asked for an attorney, and
Haim allegedly told Defendant Salah that “the only law is what we say” in the military
occupation zone. (/d. at 98.) He avers that he had to beg to use the toilet. (/d. at § 11.)

Salah further claims that he was forced to sign statements in Hebrew, a language that he

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PUBLIC VERSION

Defendant Salah submitted an affidavit in connection with his motion to suppress in
which he averred that he only made the statements at issue after months of “an on-going
nightmare of unmitigated and unbearable terror, threats, physical and psychological abuse, and
sensory and sleep deprivation carried out by numerous Israeli interrogators, soldiers, police
officers, jail guards and others working with the Israeli authorities.” (R. 310-2 at ]5.) Salah’s
affidavit provided details of the conditions he claims he endured during his interrogations by
Israeli authorities. (/d. at J 7-29.) Because his affidavit made a preliminary showing that a
significant, disputed factual issue exists, the Court held an evidentiary hearing. See United States
v. Wilson, 169 F.3d 418, 426 (7" Cir. 1999),

Prior to the hearing, the Court granted the government’s motion to conduct certain
portions of the suppression hearing in a closed courtroom because the anticipated testimony was
classified under the Classified Information Procedures Act (“CIPA”), 18. U.S.C. app. 3. United
States v. Salah, 412 F.Supp.2d 913, 919 (N.D. Ill. 2006). Specifically, the Court ordered the
testimony closed to the public for two ISA witnesses - Nadav and Haim. Jd. The government
agreed to waive the majority of the classification designation as to Defendant Salah and his
attorneys thus they were present for the majority of the hearing. /d. at 917, Pursuant to the
Court’s order, significant portions of the transcripts from the suppression hearing containing
either non-classified information or information to which the government agreed to waive its
classification designation were subsequently filed in the public docket. Jd. at 924. (R. 465-1,
485-1, 502-1, 509-1, 510-1, 512-1.)

Because the government refused to waive the classification designation regarding certain

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PUBLIC VERSION

wherein these witnesses answered such questions before the Court pertaining to the discrete areas
set forth above. Neither constitutional challenge has merit.

The law is clear that “the process due at a suppression hearing may be less demanding
and elaborate than the protections accorded the defendant at the trial itself.” Raddatz, 477 U.S. at
679, 100 S.Ct. at 2414. For example, the Federal Rules of Evidence expressly recognize that at
suppression hearings — which deal only with the admissibility of evidence — a court is not bound
by the Federal Rules of Evidence. Fed. R. Evid. 104(a).'° Indeed, the Supreme Court has held
that hearsay evidence is appropriate and admissible at suppression hearings while it is only
admissible at trial if it falls within one of the designated exceptions under the Rules. Raddatz,
477 U.S. at 679, 100 S.Ct. at 2414 (“At a suppression hearing, the court may rely on hearsay and
other evidence, even though that evidence would not be admissible at trial”). “Furthermore,
although the Due Process Clause has been held to require the Government to disclose the identity
of an informant at trial, provided the identity is shown to be relevant and helpful to the defense,
Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 627- 628, 1 L.Ed.2d 639 (1957), it
has never been held to require the disclosure of an informant’s identity at a suppression hearing.”
Id. (citing McCray v, Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)).

Likewise, “the right of confrontation'* does not apply to the same extent at pretrial

'3 Even disclosures under Brady v Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), may not be required prior to a suppression hearing, See United States v. Stott, 245 F.3d
890, 902 (7" Cir. 2001).

“ The Sixth Amendment’s confrontation clause provides that “[iJn all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against

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PUBLIC VERSION

locating the body. (Tr. at 1024-25.) When Salah was out in the field, the ISA had him
handcuffed. (/d. at 1031.)

Nadav testified that Salah again called his wife in an attempt to obtain the map from her.
(id, at 1037; Gov. Ex. 2-8-93 Log.) He explained that Salah indicated a hesitancy on his wife’s
part regarding the map, but Salah attempted to explain to her that he was trying to get the map on
his own initiative. (/d. at 1038.) During the conversation, Nadav said that Salah informed his
wife that his condition in the prison was fine and that he was getting his necessary medication.
dd.)

Nadav testified that Salah again called his wife on both March 17, 1993 and March 18,
1993, and that Nadav remained present in the room. (Jd, at 1097-98; Gov. Ex. 3/17/93 Log
Translation SH; Gov. Ex. 3/17/93 Log Translation SH.) During both conversations, Salah
discussed locating the map reflecting the burial site of Sa’doan’s body. (Tr. at 1097-98.) He also
spoke with his children on March 17, 1993, and inquired about their studies. (/d. at 1097.)

4. Judith Miller

Nadav testified regarding his interactions in February 1993 with New York Times reporter
Judith Miller. Haim asked Nadav to inquire of Salah if he would meet a journalist from the New
York Times. (Id. at 1048.) Initially, Salah told Nadav that he was not interested in such an
interview. (/d.) Subsequently, he agreed to the interview, and Ms. Miller thereafter observed
Nadav interview Salah. (/d. at 1048-50.) She observed the interview through a monitor. (/d. at
1049.) After she saw the interview session, Ms. Miller asked Nadav to ask several questions for
clarification, and Nadav went back into the interrogation area and asked Salah the questions, (Jd.

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PUBLIC VERSION

Prior to hearing this evidence, the Court gave defense counsel the opportunity to proffer
to the Court, ex parte, the relevance and materiality of this classified information to their case. In
other words, the Court gave Defendant the opportunity to explain the pertinence and relevance of
the line of questioning pursued on cross examination that evoked classified responses from the
witnesses, as well as the significance of the requested documents. In addition, the Court had
access to and reviewed the majority of the documents that the government would not produce to

Defendant on the basis of a classification designation.

REDACTED PURSUANT TO CIPA

After such review, where required under the CIPA framework, the Court ordered the
government to substitute a statement admitting relevant facts that the classified information
would tend to prove. In response, the government, for purposes of the suppression hearing,

admitted the following through stipulation”:

REDACTED PURSUANT TO CIPA

"2 Although the government referred to these as “stipulations” during the hearings, they
are more appropriately termed admissions or concessions for purposes of the hearing.

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PUBLIC VERSION

Although the Seventh Circuit has not addressed the issue in the context of testimony,"
other courts have held that a defendant’s statements made to foreign police or officials in the
absence of Miranda warnings are admissible in a United States court, if the defendant made them
voluntarily. See, e.g., United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); United States v.
Heller, 625 F.2d 594, 599 (5" Cir. 1980). See also United States v. Bin Laden, 132 F.Supp.2d
168, 187 (S.D.N.Y. 2001).

Two exceptions apply to the admissibility of voluntary statements made to foreign
officials on foreign soil in the absence of Miranda warnings. Yousef, 327 F.3d at 145-46. First,
if the United States engaged in a “joint venture” with the foreign officials, “statements elicited
during overseas interrogation by foreign police in the absence of Miranda warnings must be
suppressed.” Jd. at 145; Heller, 625 F.2d at 599 (“if American officials participated in the
foreign ... interrogation, or if the foreign authorities were acting as agents for their American
counterparts, the exclusionary rule should be invoked”); United States v. Hensel, 509 F.Supp.
1364, 1375 (D. Me. 1981). A joint venture occurs where the United States actively participated —
either directly or indirectly — in the questioning of the defendant. Even if United States law
enforcement did not directly question a defendant, courts suggest that a joint venture nonetheless
exists if the American law enforcement agents used the foreign officials to carry out such

questioning in order to circumvent Miranda's mandates. See Yousef, 327 F.3d at 145-46; United

"' As discussed infra, the Seventh Circuit has discussed the analysis in the context of the
4" Amendment and the application of the exclusionary rule to acts of foreign officials on foreign
soil, See United States v. Marzano, 537 F.2d 257, 269-70 (7 Cir. 1976).

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PUBLIC VERSION

1571.) Indeed, Nadav spoke with Salah in over 30 separate sessions. Nadav interviewed Salah
during these sessions regarding Salah’s Hamas activities and his role in and knowledge of such
activities. He also identified Salah in court. (/d. at 1010.) Nadav testified that on January 26,
1993, Haim selected him to question Salah. (/d. at 1259.) Prior to interviewing him, Nadav
testified that he was told that Salah “is a senior Hamas activist that was meeting with senior
Hamas activists; and, that already that night he started to admit to it in a connection with — ina
connection to the Hamas, any kind of connection to the Hamas.” (Jd. at 1252-53.) Haim directed
Nadav to question Salah about his Hamas activities and “about his encounters or meetings with
Hamas activists.” (/d. at 1370.) According to Nadav, his objective in questioning Salah was to
have Salah tell him “as much as he could about his activities.” (/d. at 974.) Nadav said that he
wanted the truth from Salah in order to prevent future attacks by Hamas on Israelis. (/d. at
1646.)

Nadav admitted that even though he questioned Salah in 1993 — over 13 years ago — he
had some independent recollection of the events due to their unique nature, but he also needed to
refresh his recollection with his Interview Logs that he completed contemporaneously with each
interview of Salah in 1993. (/d. at 979-80, 1398.) He contemporaneously completed interview
log sheets to “reflect what the interrogee said during his interview” and to “remind the
interrogator of what took place.” (Jd. at 1392-93.) Nadav described the ISA interview logs as
follows: “the memo reflects the exact hour of when the interview started and when it ended.
And, in those memos, I write bullets about what the interrogee said.” (/d. at 1398.)

Nadav testified that he first met with Defendant Salah on January 26, 1993 at 11:30 a.m.,

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PUBLIC VERSION

1824-28.) Mr. Kuttab admitted, however, that he had never been in an ISA interrogation facility,
he had never observed an actual ISA interrogation, he had never observed a videotape of an ISA
interrogation, and he had never heard an audio-tape of any such interrogation. (Jd, at 1881-82.)
Further, Mr. Kuttab has not spoken with any of the ISA interrogators who questioned Salah. (Id.
at 1886.) He also has never spoken with Defendant Salah or questioned him regarding his ISA
interrogation. (/d.) Finally, Mr. Kuttab did not review any of the ISA documentation regarding
Defendant’s Salah’s questioning, including the five hour audio-taped conversation. (/d. at 1888-
89.) Mr. Kuttab did review Defendant Salah’s affidavit submitted in connection with this case.
(id. at 1884.)

During this testimony, Mr. Kuttab testified that the ISA treats security detainees and
criminal prisoners differently. (/d. at 1832.) He testified that the ISA does not allow an attorney
access to a security detainee until “the interrogation is over.” (/d. at 1832-33.) Further, ifa
security detainee requests a lawyer, the ISA does not have to cease its interrogation of the
detainee. (/d. at 1837-38.)

Mr. Kuttab also testified regarding the military courts in the Occupied Territories. He
testified that the judges in these courts are military officers, appointed to the court by the Israeli
Army. (/d. at 1836.) He stated that “if it’s a single judge, they are legally trained. If it’s a three-
judge panel, then the presiding judge has to be a legally-trained judge. The other two can be just
regular officers with no legal training.” (/d. at 1837.)

He opined on techniques employed by the ISA interrogators in connection with security

detainees. He testified that isolation from outside parties was one of the most significant aspects

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PUBLIC VERSION

(Ud. at {27.) Asa result of these alleged actions, Salah wrote a 53 page handwritten statement.
(Gov. Ex. Salah Handwritten Statement.)

After his experience with the birds, the Israeli agents returned Salah to the Ramallah
facility for further interrogation. Salah claims that Interrogator Nadav inquired into his written
statement, and he told Nadav that he had not supplied the information. (/d. at 929.) Salah avers
that Nadav ordered him to “go along with it, and made it clear” that if he did not, “the abuse and
deprivations would continue.” (/d.) Accordingly, Salah asserts that he had no choice but to
submit to the use of the statement for interrogation. (/d.)

At the hearing, the Court admitted Salah’s affidavit into evidence. (Def. Ex. 25.)

ANALYSIS

Defendant Salah has moved to suppress all statements — written and oral — he allegedly
made to agents of the Israeli government, including the Israeli police, ISA interrogators, and
others working with the ISA. Defendant argues that any statements he made to the Israeli
authorities were not given voluntarily, but instead, were the result of torture, and cruel, inhuman
and degrading treatment. Moreover, Defendant argues that the Israeli authorities failed to give
him Miranda warnings, and failed to immediately provide him with an attorney when he
requested one. He contends that because these statements were given in violation of the Fifth
and Eighth Amendments to the United States Constitution, and international law, the Court
should suppress them.

Defendant Salah further argues that Haim’s and Nadav’s assertion of a classification

privilege in response to certain questions violated his Sixth Amendment right to effectively cross

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PUBLIC VERSION

possible in order to prevent another act of killing.” (/d. at 1489.) Salah was alert when such
questioning took place. (/d.)

Nadav testified that the ISA provided Salah with meals three times a day unless Salah
was fasting for religious purposes. (/d. at 963-64.) When Salah wanted food, Nadav said that
they gave it to him. (/d. at 1484.) In fact, Nadav often ate meals with him. Salah also received
food from the kitchen of the interrogators, rather than from the prison kitchen, including fresh
salads. (id. at 964, 995.) In addition, Nadav testified that he gave Salah coffee and tea when he
asked for such drinks, and even offered drinks to him when he did not ask for them. (/d. at
1484.) Nadav testified that he brought coffee for both himself and Defendant so frequently that
he knew how Salah liked his coffee — with two spoons of sugar. (Id. at 1050, 1106 1178-79.)
Further, Nadav said that he permitted Defendant Salah to go to the bathroom whenever he
wanted to do so; Salah never had to beg to go to the bathroom. (Jd. at 1198-99, 1483.) Nadav
also gave Defendant Salah a copy of the Koran. (Jd, at 964.) Nadav said that he treated Salah
“quite nicely” while he was in custody. (Jd. at 1485.)

According to Nadav, Salah did not complain to him about his treatment while he was in
custody. Nadav further testified that he never observed any signs of physical or mental abuse
during his questioning of Defendant Salah. (/d. at 992, 1009, 1027, 1033, 1067, 1069, 1222,
1484, 1486-87, 1534.) Salah never complained to Nadav that Haim had mistreated him. (/d. at
1486.) Nadav added that “I can say that judging on the relationship that we had, if something of
this had happened to him or could have happened to him or something even close or similar to
that, he would tell me about it.” (/d. at 1225.) Also, Nadav testified that other ISA agents would

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8. Sleep Deprivation

The issue of sleep deprivation is relevant to the Court’s determination of the
voluntariness of Defendant’s statements. See United States v. Gillaum, 372 F.3d 848, 856-57 (7"
Cir. 2004); United States v. Danser, 110 F.Supp.2d 792, 802 (S.D. Ind. 1999). Defendant asserts
in his affidavit that the ISA interrogators deprived him of sleep, including forcing him to stay
awake for a period of 48 hours. (R. 520-1, Salah Aff. at $f] 5, 9, 13, 15, 17.) As part of the sleep
deprivation, Salah avers that the ISA placed him in conditions that were not conducive to
sleeping and did not provide him with a blanket or mattress while he was in a freezing cell. (Jd.
at 9, 15.) In his 1995 affidavit in connection with the extradition of co-defendant Marzook,
Salah also averred that the ISA deprived him of sleep. (Gov. Ex. 11/8/95 Salah Aff. at {| 8(h).)
Additionally, Mr. Feldman represented “Mr. Salah was denied sleep for long periods of 24 hours
or more.” (Gov. Ex. Feldman 3 at { 16(e).)

In contrast to Salah’s averments, the three individuals who observed Defendant at the
time in question and who testified at the suppression hearing — Nadav, Haim, and Eliyahu — all
credibly testified that the ISA did not deprive Defendant of sleep. Nadav testified that from his
first meeting with Defendant on January 26, 1993 at 11:30 a.m. (the morning after his arrest),
Salah was alert and not overly tired. (Tr. at 968.) Nadav, who was Defendant’s primary ISA
interrogator, credibly testified that Salah was alert and rested every time he met with him. (/d. at
992, 994, 996, 1009, 1027, 1033, 1045-46, 1053-54, 1065, 1067, 1069, 1396-97, 1658-60.)
Nadav further said that he never intended to deprive Salah of sleep, and in fact, never deprived

Salah of sleep. (/d. at 1411, 1483, 1489, 1524, 1612.) Similarly, Haim testified that they did not

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2456, 2465.) In fact, he had never met Defendant. (/d. at 2427.) Dr. Sarraj admitted that if he
had interviewed Defendant Salah, his opinion would have been better informed. (/d. at 2465.)
He stated “I am not an expert on Mr. Salah’s story.” (/d. at 2464.)

He also conceded that he had never been in an ISA facility, or been present for an ISA
interrogation. (/d. at 2455.) He also was not present for Mr. Salah’s interrogation by the ISA.
(id)

During cross examination, Dr. Sarraj further admitted that it is difficult to know with any
certainty whether someone is over-reporting or under-reporting their torture, even as to those
individuals whom he has personally interviewed. (Jd. at 2495-96; Gov. Ex. Sarraj 2.)

H. Avigdor Feldman

Avigdor Feldman is an attorney licensed to practice law in Israel. His practice is “mainly
criminal law with a special stress on security cases.” (Tr. at 2174.) Mr. Feldman is active in
human rights organizations, and a founder of B’tselem. (/d. at 2171-72.) He also is a board
member of the Committee Against Torture, an independent human rights organization which
monitors the use of torture in interrogation in Israel and the Palestinian Authority. (/d. at 2172;
Gov. Ex. Feldman 3.) In 1991, Mr. Feldman won the Robert F. Kennedy Human Rights Award
from the Robert F. Kennedy Center for Human Rights. Mr. Feldman represented Defendant
Salah commencing in April or May of 1993 in connection with his charges in Israel. (Tr. at

2222.) Mr. Feldman did not represent Salah during the core of his interrogation. Mr. Feldman

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Additionally, as Mr. Feldman testified at the suppression hearing, he “heard in the trial
that the Secret Service interrogators — again, either Haim or Nadav — said that he was treated
differently because he was a foreign citizen.” (Tr. at 2210.) This testimony from 1993 remains
consistent with the Nadav’s and Haim’s testimony. Although Mr. Feldman had not heard of this
exception for American citizens, he admitted that he had not represented any American citizens
detained in Israel. (/d. at 2208-09, 2210-11.)

Defendant contends that Haim’s testimony was impeached on this issue because he
“changed his testimony from having personally received a ‘direct order by ISA head Ya’kov
Perry’ to admitting that he never actually spoke to Perry.” (R. 550-1, Defendant’s Post-Hearing
Brief at 46.) The Court disagrees. Haim never testified that he spoke directly to Mr. Perry.
Further, the order that was conveyed to him was the same — Haim should treat Salah differently
because he is an American citizen and “not to use what was allowed to us by the Landau
Commission.” (Tr. at 667.) Similarly, although Nadav did not remember receiving “special
instructions,” he clearly testified that he treated Salah differently, in part, because he was an
American citizen. This corroborates Haim’s testimony.

4, Photographic Evidence

With respect to physical abuse, Haim and Nadav emphatically denied that any ISA
interrogator or official beat or physically tortured Defendant Salah. The other evidence in the
record supports this credible testimony. None of the contemporaneous ISA logs reflect any such
abuse. Further independent sources corroborate this testimony. The Court has carefully
reviewed the photographs of Defendant Salah from the time period in question. Specifically, the

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right to remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.” Dickerson, 530 U.S. at 435, 120
S.Ct. at 2331 (citations omitted). In the United States, if a law enforcement officer fails during a
custodial interrogation to give a defendant the appropriate Miranda warnings, any statements
made by that defendant are subject to suppression. See generally, United States v. Stewart, 388
F.3d 1079, 1086-88 (7" Cir. 2004).

Courts have found that foreign officials do not have to give Miranda warnings prior to
obtaining confessions on foreign soil in order for such confessions to be admissible in a court in
the United States. Courts have reasoned that the exclusionary rules have little if any deterrent
effect on foreign police:

Miranda was intended as a deterrent to unlawful police interrogations. When the
interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has
little or no effect upon the conduct of foreign police. Therefore, so long as the
trustworthiness of the confession satisfies legal standards, the fact that the defendant
was not given Miranda warnings before questioning by foreign police will not, by
itself, render his confession in admissible.
United States v. Chavarria, 443 F.2d 904, 905 (9" Cir. 1971). See also United States v.
Martindale, 790 F.2d 1129, 1132 (4" Cir. 1986); United States v. Welch, 455 F.2d 211, 213 (2d
Cir. 1972), Miranda warnings by foreign officials in foreign territories prior to obtaining
confessions particularly do not seem warranted where the United States is not involved and the

foreign officials have no indication that the United States has any ongoing criminal investigation

regarding the subject.

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Court carefully observed photographs of Defendant from January 31, 1993, February 3, 1993,
and March 15, 1993 — all within the time period of his custodial questioning. (See Gov. Exs.1-
31-93 Photograph; 2/28/93 Salah Photograph; Newspaper Photographs Group — from 2/3/93
from the Chicago Tribune, Chicago Sun Times; and 3/15/93 from Chicago Tribune, Sun Times
and certain foreign newspapers, including the Hahdashok and the Al-Quds Daily; Salah Photo
Video 1; Salah Photo Video 2; Salah Photo Video 3). (See also Tr. at 369-70, 423-29.) These
photographs are from the Chicago Tribune, the Chicago Sun Times and certain foreign
publications. None of these photographs evidence any signs of physical abuse on Defendant’s
face, head, neck and other exposed areas. Furthermore, Haim testified that the suit coat worn by
Defendant in the February 3, 1993 photographs is the same one worn by Salah at the time of the
arrest. That suit coat in the February 3, 1993 photographs is not torn or damaged. If the
allegations in Salah’s affidavit were true, it is likely that his coat would show some signs of
abuse. Furthermore, Defendant Salah was smiling in the photographs from February 3, 1993 and
March 15, 1993.
5. Judith Miller

On February 11, 1993, New York Times journalist Judith Miller observed Nadav question
Salah at the Ramallah facility. She observed the session through a monitor that permitted her to
see and hear the session. (Tr. at 443, 555-56, 1049-50.) She characterized her impression of
Salah when Nadav entered the room — “[h]e did not seem afraid as his interrogator entered the
room, carrying a metal tray with two glasses of Nescafe, milk, and sugar.” (Gov. Ex. Israel

Chapter at 381.)

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namely for Salah’s arrest by the Israelis. (Tr. at 1174; Gov. Ex. Tape 3 English Translation SH at
33.)

Salah also gave Nadav information that he previously had not given them, and told Nadav
that he “didn’t discover it either.” (Tr. at 1198; Gov. Ex. Tape 5 English Translation SH at 13.)
At one point when Salah provided certain information to Nadav, Nadav said, “you tricked me.”
Salah agreed, “I tricked you.” Nadav then responded, “Tsk, tsk, tsk, tsk, tsk.” Salah replied to
Nadav, “It was your fault that you believed me.” (Gov. Ex. Tape 3 English Translation SH at
23.) This ease of exchange and boldness contradicts Salah’s assertions of a broken will.

The voluntariness of Salah’s statements on March 18, 1993 is also corroborated by his
bold statements to Nadav. At one point early in the session, for example, Salah told Nadav “[i]t
is not like I’m deceiving you.” (Gov. Ex. Tape 1 English Translation SH at 23.) Salah added, “If
I leave here with the state of mind that you have screwed me, I will leave here seeking vengeance
and I will start all over again ... Do you want better than this honesty?” (Tr. at 1112-13; Gov. Ex.
Tape 1 English Translation SH at 23.) Near the end of the March 18 session, Salah told Nadav
“don’t let me out in a way that I would have a grudge.” (Gov. Ex. Tape 5 English Translation
SH at 52.) When Nadav told Salah that he did not “want any grudges,” Salah added “if a human
being works with revenge and a grudge, by God he will do miracles.” (/d.) Salah’s bold words
captured on tape refute that his will was overborne and counter Salah’s averments that Nadav
ordered him to claim that the statement was his or “the abuse and deprivations would continue.”

At the end of the session, Nadav asked Salah if he needed anything. (Tr. at 1198-99;
Gov. Ex. Tape 5 English Translation SH at 12.) Salah said no. This recorded statement

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1125.) Further, he never denied Salah’s request to use the restroom. This corroborates Nadav’s
credible testimony that Salah never had to beg to go to the bathroom.

On March 19, 1993 — the next day — Defendant Salah met with an official from the
Consulate General. (Tr. at 1119; Gov. Ex. CDG at 36-37.) During that session, Salah informed
the official that he had been interrogated the day before, but he did not complain about the
conditions. (/d.) He also claimed to the Consulate General officer that his interrogation
primarily concerned “the still unfound burial site of the Israeli soldier lan Sa’adoun killed a few
years ago.” (Def. Ex. Salah Con. Docs. at 76.) Based on the audio-tape, Salah lied to the
Consulate General’s officer about the content of the March 18, 1993 session.

Moreover, Salah never told Mr. Feldman, his attorney, about this session. He did not
complain to him about it or claim that Nadav forced him to make statements during it, even
though Salah knew that Mr. Feldman was attempting to suppress any statements Salah had made
to the ISA.

d. The Tone of the Audio-Tapes

The Court has listened to the audio recordings of this interview in their entirety. (Gov.
Exs. 3/18/93 Tapes 1-5.) Although the conversation took place almost exclusively in Arabic and
consequently the Court could not understand the words (the Court has read the transcripts in
English), the Court closely listened to the tone of the interview. This review yielded no yelling,
no threats, no loud music, and no sounds of violence. To the contrary, the tone of the interview
was calm and quite humane. It revealed an ease of exchange between Defendant Salah and
Nadav that did not suggest that Defendant’s will had been overborne, and was consistent with

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written. (/d. at 1177-78.) Salah told Nadav that he was talking, in part, to help himself — he
hoped to get a reduced sentence. (/d. at 1210.)

Nadav testified that he and Defendant Salah again discussed the map of the location of
the body of Sa’doan during this session. He said that Salah “suggested that he would go out of
the facility for five hours, reach a public phone and make a collect call to his wife in the United
States. That way she would feel that he was free.” (/d. at 1175.) Nadav further testified that
Salah discussed a conversation that he had had with his attorney, Ahlam Haddad, after he
provided her with a copy of the handwritten agreement he entered with the ISA regarding
Sa’doan’s burial location. (/d. at 1184-85.) The attorney told Salah that the ISA would not abide
by the written agreement they had entered regarding the Sa’doan map, and that the ISA would
“tear it apart.” (/d. at 1185.) Salah told Nadav that he was afraid they would tear it up after he
spoke with her, but he came to understand that he could trust Nadav and “therefore, I don’t listen
to the female attorney.” (/d. at 1184-85.) Nadav added, “he was trying to tell me that he does
not trust the lawyer regarding this subject. But I told him that this is none of my business.” (/d.
at 1185.)

Nadav testified that Defendant Salah told him that because no one knew most of the
information that he was providing to Nadav but himself, that “his commanders in the Hamas will
understand that he was the one who gave it up, who gave it away, and that will create problems
for him in dealing with them.” (/d. at 1114-15.)

During the March 18, 1993 session, Nadav testified that Salah joked with him, even
suggesting that Nadav should pay him for the significant information he was providing. (Jd. at

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1. The Landau Commission

Haim testified regarding the Landau Commission. Haim testified that the Landau
Commission was “convened or appointed by the president of the supreme court ... in order to
look into the investigation methods of the ISA regarding terrorism and in order to establish the
tules for the ISA’s methods of interrogations regarding terrorism.” (/d. at 590.) After the
Commission investigated the ISA methods, it issued a written report in 1987. (/d. at 633.) A
portion of that report is public and a portion of it — the Annex 2 — is classified. (Jd. at 545, 589.)
The report set forth certain types of methods that the ISA could use during the questioning of
detainees. (Jd. at 633.) The Commission found that some ISA officials lied at mini-trials (the
procedural mechanism equivalent to a suppression hearing), and had done so for many years.
(id. at 590.) It further found that supervisors at the ISA knew that such lying took place and
allowed it to continue. (/d. at 591.)

2. Salah’s Arrest

On January 25, 1993, Salah was arrested pursuant to a warrant at the Erez Crossing — the
main entry point between the Gaza Strip and Israel. (/d. at 257.) Pursuant to Haim’s
instructions, Salah came to the Ramallah facility within hours of his arrest. (/d. at 245, 258.)
Haim did not participate in Salah’s arrest. He did, however, consistent with Israeli law, request
an arrest warrant from a police officer in Ramallah for Defendant Salah’s arrest based on his
suspected terrorist activities. (Jd. at 245-46.) Such a warrant was not necessitated under Israeli
law, according to Haim, because the military had the authority to arrest individuals whom they

suspected of terrorist activities. (/d. at 246.)

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PUBLIC VERSION

testified that the public report concluded that the ISA used “physical means, torture as a routine
in their investigations,” and that ISA Interrogators lied to courts about the “means of
investigation (/d. at 2182-92.) In response, the Landau Committee gave the ISA specific
directives on what techniques it could employ during the questioning of detainees. (/d. at 2185.)
Mr. Feldman further testified that certain amendments were made to the report in the mid 1990s.
(Id, at 2202-03.) Mr. Feldman added that he currently has a petition pending before the Supreme
Court of Israel to publish the secret part of the report. (Jd. at 2193.)
2. Representation of Salah

Mr. Feldman testified that Salah told him, during the course of his representation in 1993,
about various interrogation methods used by the ISA. Specifically, he testified that Salah told
him that the ISA interrogators threatened to photograph him naked, made him sit in a small
child-like chair that was slanted, slapped him, placed a “stinking” hood over his head, threatened
him with long imprisonment if he did not cooperate, placed him in a freezing cold cell, deprived
him of sleep, played loud music, threatened Salah with violence, including harming his family,
promised to release him immediately if he gave a confession, and refused his request to be given
his “statement” in English. (/d. at 2233-35, 2239-42, 2245-47, 2335-36.) Mr. Feldman testified
that Salah told him of this conduct sometime after he started representing him in April or May of
1993 and before the November 1993 mini-trial, although he could not remember specifically
when. (/d. at 2206-08, 2226-27.) Mr. Feldman’s testimony was consistent with his affidavit,
dated July 25, 2004, submitted in the civil case Boim v. Quranic Literacy Institute, Holy Land

Foundation for Relief and Development, Islamic Association for Palestine (a/k/a American

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PUBLIC VERSION

concentrating on the wrong people, but it also brings about more hatred towards us; and we don’t
wish to do that.” (Jd. at 223.) Significantly, “1993 was a turning point in the actions carried out
by Hamas, and 1993 was the first time that it started carrying out suicide bombers.” (/d. at 219.)
Haim further testified regarding the four “wait” designations employed during
interrogations — “cell,” “wait,” “cell wait,” and “rest.” (Jd. at 288-300.) Haim testified that
“cell” referred to the ISA sending the detainee to a prison cell under jurisdiction of the Israeli
Prison Authority, not the ISA interrogators. (Jd. at 288.) “Wait,” according to Haim, has two
states. (Jd, at 288-89.) The first wait state is in the interrogation room. The second state is in the
hallways of the interrogation area. (Jd. at 288-89, 733, 807.) The designation “cell wait” refers
to the ISA placing a detainee inside a cell at the ISA interrogation facility, which has a bench
where the detainee can sit down. (/d. at 297-98, 732.) It also contains a light and air
conditioning. Salah was held in “cell wait” once, on February 21, 2006. He was there for 3 %
hours, uncuffed and with no head cover. (/d. at 299.) The fourth category is “rest.” (/d.) Haim
explained rest:
When we decide to let the interrogee rest during the interrogation, and for some
reason or another, we cannot transfer him back to the cell that is under the
supervision of the prison’s authority, we are obligated to provide the detainee with
a mattress and two blankets in the interrogation room when he can sleep. Of
course, under those circumstances, he’s uncuffed and without any REDACTED
PURSUANT TO CIPA
I want to conclude by saying that this gives the detainee the ability to sleep and

rest not inside the cell, but within the interrogation facility.

(id. at 299-300.)

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PUBLIC VERSION

Based on his work, Mr. Ginbar opined that in 1993, the ISA engaged in systematic and
deliberate harsh interrogation methods against security detainees. (/d. at 2065-66.) He testified
that the ISA used isolation techniques, and “waiting” techniques which deprived the detainees of
sleep. (/d. at 2069.) Mr. Ginbar testified that “in order to make — to prevent a person from sleep,
you have to make them extremely uncomfortable, especially if it’s over a day and over two days.”

(Ud. at 2071.) Mr. Ginbar further testified that “Waiting for the interrogation routinely involved
being shackled to a small — very small — forward-slanting chair while being hooded and music
playing in your ears.” (/d.)

Mr. Ginbar further testified that he had never heard of a special dispensation from the
Landau methods for people who were 40 years old or older. (/d. at 2076-77.) He had, however,
heard of special dispensations for detainees with physical conditions. (Jd. at 2077.)

Mr. Ginbar said that before April of 1993, an ISA interrogator could use the interrogation
methods approved by the Landau Commission without obtaining prior permission. He opined
that after April 1993, an interrogator only needed to obtain the permission of his supervisor to
use them which was not “such a big deal.” (/d. at 2080.)

Both prior to and after April of 1993, Mr. Ginbar testified that he had received complaints
from former detainees and testimonies from detainees being denied the use of a bathroom. (Id. at
2082.) Mr. Ginbar opined regarding certain procedures that the ISA specifically precluded in at
least 1993. He based his opinion on an affidavit that he reviewed that the ISA had submitted to
the Supreme Court of Israel in April 1993. (/d. at 2081-88.) He testified that, pursuant to the
affidavit, the ISA specifically prohibited the following techniques: the denial of bathroom

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PUBLIC VERSION

Nadav asked why he should be afraid, Salah responded “[b]ecause I’m a Hamas commander.”
(Tr. at 1141; Gov. Ex. Tape 2 English Translation SH at 42-43.) Nadav responded: “But I’m
your friend, On the contrary, ] would say, ‘do you know who’s my friend.’” (Tr. at 114; Gov.
Ex. Tape 2 English Translation SH at 43.) Nadav testified regarding this joking exchange:
“Again, we made some jokes. It’s a part of the atmosphere that we had.” (Tr. at 1141.)

During the conversation, Salah informed Nadav that if he had not been detained, he
would have accepted the position of the military commander of Hamas. Salah then jokingly
added: “When I would come to visit you, I would bring guards ... I mean an official meeting. We
would need to search you and everything.” (Tr. at 1142; Gov. Ex. Tape 2 English Translation
SH at 44.) When Nadav asked “Search me,” Nadav responded, “Yes. You meet the Hamas
commander just like that.” (Tr. at 1142.) As Nadav testified regarding Salah’s remarks, they
show that “he has enough confidence to kid with me about it.” (/d. at 1143.)

Similarly, Salah jokingly added, “I am now a HAMAS commander. ... You cannot say
anything.” Nadav responded: “Why? I will ask the secretary to ... To schedule me an
appointment with you. ... Do you want me to get you a secretary?” Salah then responded “I have
to charge you for it.” (Tr. at 1193; Gov. Ex. Tape 5 English Translation SH at 57.) These joking
exchanges further corroborate Nadav’s testimony regarding the relationship he had with Salah.

As noted above, Salah also joked with ISA Interrogator Benny regarding a possible
suicide operation, teasing Benny that “he’s the smart one” who can determine where it is. (Tr. at
1172-73; Gov. Ex. Tape 3 English Translation SH at 32.) Salah further teased that the operation
would take place in “as a retaliatory act for the sake of the big Mujahid, the Hamas commander,”

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from the judge lodging a complaint against him. Salah complained to the judge that Haim had
stripped him naked and threatened him with a long detention. (Tr. at 499-500.) The allegations
were subsequently investigated and, according to Haim, they were never substantiated. (/d. at
500.) In fact, Haim testified that Salah retracted the allegations during the investigation and told
the birds that he had lied to the judge about Haim. (/d. at 501-02.)
11. Salah’s March 18, 1993 Statements to Nadav

The ISA resumed questioning Salah after the bird operation. Haim testified that they
eventually informed Salah that they had the handwritten statement that he had provided to the
birds. (/d, at 509.) According to Haim, Salah agreed to let Nadav question him about that
statement on March 18, 1993. (/d. at 510.) The ISA recorded that conversation. (/d.) Haim
testified that he authorized the tape recording of that session because Salah indicated that he
would talk to Nadav regarding the contents of his handwritten statement, but he would not give
any testimony to the Israeli police officers on the subject. (/d.) March 18, 1993 was the last
lengthy interview session of Salah by the ISA.

B. ISA Agent Nadav

ISA Interrogator Nadav also testified during the hearing for a full 3 days. Specifically, he
testified for approximately 8 % hours on direct and over 11 hours on cross examination.

1. Nadav Was the Primary Questioner of Defendant Salah

Nadav is a former interrogator for the ISA who served as the deputy head of the team of
interrogators. (/d. at 958.) Nadav explained — and contemporaneous ISA interview logs confirm
— that he had the primary responsibility at the ISA for questioning Defendant Salah. (/d. at

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PUBLIC VERSION

Exs. Salah Video Photo 1 & Salah Video Photo 2.) Haim further testified that on February 2,
1993, Defendant Salah did not complain to the judge regarding his treatment. (Tr. at 430.)
8. Sa’doan

Haim testified at length regarding his discussions with Defendant Salah about the burial
site of Ilan Sa’doan. (Jd. at 385-419.) Sa’doan was an Israeli soldier from the Israeli Defense
Forces whom Haim testified was kidnaped and murdered. (/d. at 385.) Israeli officials did not
know where his body was buried. Haim testified that Salah told Nadav that he had information
that could lead the ISA to the burial place of Sa’doan. This information was very significant to
the ISA, according to Haim, because “according to Judaism, you have to recover people that are
taken as prisoners. It’s a matter of life and death .... And for us, discovering the burial place of
the soldier and bringing him — and giving him a Jewish ceremony burial, for us it’s — it’s a very
fundamental principle. Supreme - supreme principle.” (/d. at 386.)

According to Haim, Salah told them that he had a map at home in the United States
reflecting Sa’doan’s burial location. Salah told Haim that he would attempt to obtain the map
from the United States to assist them in locating Sa’doan’s body. In return, Salah “demanded
that we release a number of prisoners and that we give him his money back, the money that we
took from him.” (/d. at 387.) Haim described his negotiations with Salah and testified that they
ultimately agreed to release female prisoners in exchange for the map of Sa’doan’s burial site.
(id. at 388-392.) Haim testified that they only reached this agreement after Prime Minister Rabin
approved it. (/d. at 390-91, 397.) Once they reached an agreement, Defendant Salah wrote out
the terms of the agreement on January 31, 1993. (/d. at 391-92; Gov. Ex. Sa’doan Agreement.)

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PUBLIC VERSION

limited areas of the ISA testimony, the Court conducted a limited portion of the hearing ex parte,
in camera. The Court also reviewed various documents ex parte, in camera pursuant to Section
4 of CIPA, to determine whether disclosure is appropriate and, if so, in what form. The
remainder of the proceeding was open to the public.
Vv. Testimony Elicited During the Hearing

The government called the following witnesses during the suppression hearing: ISA
Interrogator Haim, ISA Interrogator Nadav, Israel National Police Officer Hezi Eliyahu, and
Federal Bureau of Investigation (“FBI”) Special Agent Priestap. The government also called FBI
Special Agent David Bray in its rebuttal case. Defendant Salah called the following witnesses at
the hearing: Jonathan Kuttab, Yuval Ginbar, Avigdor Feldman, Eyad El Sarraj, Ahmed Al-
Batsh, and Ribhi Qatamesh.> Defendant Salah submitted an affidavit, but did not testify at the
hearing. A summary of the pertinent portions of each witness’s testimony is set forth below.
Because a portion of the testimony was classified and thus covered by CIPA, limited portions of
this opinion are filed under seal.

In addition, both sides introduced exhibits during the hearing. To the extent such exhibits
are relevant and material to the Court’s ruling, they are discussed below.

A. ISA Agent Haim

ISA Interrogator Haim testified for 3 full days of testimony — over 20 hours of testimony

5 Both Al-Batsh and Qatamesh testified via video conference.

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PUBLIC VERSION

mistreatment to them when they met with him on January 31, 1993. (Gov. Ex. CDG at 003-04.)
Although he reported his 2:00 a.m arrest on January 25 and complained that the Israeli authorities
had taken $97,400 from him, he did not complain that they had mistreated him at the time. (/d.)
V. International Law

Finally, Defendant argues that the Court should suppress his statements because the ISA
obtained them in violation of international law. Specifically, he claims that the United Nations
Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment
mandates suppression of his statements. Article 2, upon which Defendant relies, of that
Convention provides:

1. Each State Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a
justification of torture.
United Nations: Draft Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 23 1.L.M. 1027, 1028 (1984).

Even if Defendant has standing to raise enforcement of this Convention, his argument
fails, The Seventh Circuit has expressly stated that “there is no general exclusionary rule for
international law violations.” United States v. Lawal, 231 F.3d 1045, 1048 (7" Cir. 2000).
Accordingly, suppression of evidence based on a violation of the Convention is not appropriate

unless the Convention “provides for that remedy” or there is an independent basis for

suppression of the evidence under the laws of the United States. /d. (quoting United States v.

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the following: 1) the release of “all the women who neither performed a military operation,
possessed weapons, nor were leaders in organizations,” and 2) “the confiscated money will be
transferred to Mohammad Salah’s bank account in Chicago.” (/d.) The Consulate Report further
notes that Nadav (in Hebrew), Haim (in Hebrew), and Salah (in Arabic) signed the agreement.
(id.)

Fourth, Salah’s discussion with Nadav during the March 18, 1993 recorded interview
supports that Salah voluntarily provided the ISA with information regarding Sa’doan because he
believed it was “humanitarian.” (Gov. Ex. 3/18/93 Tape 3 Transcript, p. 56-57.) During this
interview, Salah described how Haim thanked him for his humanitarian action and agreed that
the ISA was “ready to sign on anything you want other than for the blood and the dangerous
ones.” (/d. at 59-60.) During this same conversation, Salah discussed the handwritten agreement
and told Nadav that he previously had given the “agreement document” to his “female attorney”
because he “was afraid” at that time. (Tr. at 1184-85; Gov. Ex. Tape 4 English Translation SH at
17-18.) Salah agreed with Nadav, however, that “what they say about [the ISA] is incorrect” and
that he could trust them to abide by the agreement. (Tr. at 1184-85; Gov. Ex. Tape 4 English
Translation SH at 17-18.)

Fifth, during his mini-trial in Israel in November 1994, Salah testified that he “initiated
giving the information about Sa’doan,” and “handwrote [his] conditions.” (Gov. Ex. Salah Zuta
Testimony Translation SH at 375.) He added: “The conditions were the release of the female
Palestinian prisoners, returning the money they took from me, to release about 500 men from

prison, as well as releasing all the people they arrested because of my address book. ... They

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REDACTED PURSUANT TO CIPA
by defense counsel. Both Haim and
Nadav answered every question posed by the Court regarding these areas. These areas included
the following:

REDACTED PURSUANT TO CIPA

None of the classified testimony or documents received by the Court relate to the
question of Salah’s guilt or innocence of the underlying crimes with which he is charged in this
case. None of the information was exculpatory. Further, none of this ex parte information
included any description of his condition or treatment while in the custody of the ISA. With the
exception of the bird logs, none of the documents or testimony contained statements made by
Defendant Salah. To the extent that the bird logs contained Defendant’s statements, the Court
ordered the government to turn over appropriate summaries of such statements even though they
were not exculpatory or helpful to Defendant. Furthermore, under the standard in Strickler v.
Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999), there is not a
“reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Jd. (quoting United States v. Bagley, 473 U.S. 667, 682,
105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). In sum, the classified testimony and documents

reviewed by the Court ex parte and in camera pertained, at best, to the credibility of Haim and

Nadav regarding interrogation procedures and monitoring methods employed by the ISA.



PUBLIC VERSION

have told him if any such things happened because “we don’t hide information one from the
other.” (/d. at 1225.) Salah did tell Nadav that other prisoners in custody cursed the ISA. (/d. at
1486.)

Nadav testified that he never left Salah handcuffed in the interrogation room, and he
never left Salah outside of the interrogation room handcuffed or sitting in a small chair. (Jd. at
1006, 1221.) Furthermore, Nadav never saw Salah sitting in a small chair. (/d. at 1006, 1221,
1428, 1483, 1693.) In addition, Nadav testified that the ISA did not use a small chair like
Defendant’s Exhibit 5. (/d, at 1427-28.)

Nadav further testified that he never exposed Salah to deafening music. (/d. at 1221,
1462.) He testified that he never threatened Salah. (Jd. at 1223, 1483.) Nadav said that he never
threatened Salah that he would spend the rest of his life in jail if he did not confess. (/d. at 1223.)
In fact, Nadav said that he did not tell Salah that they would release him if he confessed. (Jd. at
1224.) Instead, he told Salah that his sentence was up to the judge in the case. (/d.) Salah
wanted to know what his sentence would be, but Nadav did not give him an answer regarding the
extent of the sentence that he would get. (/d. at 1666.)

Nadav testified that he never threatened to have the FBI kill Salah’s family. (/d. at 1221.)
He said further that he never heard any such threats made to Salah. (Jd. at 1222.) Moreover,
Nadav never threatened Salah’s family. (/d. at 1484.) He testified that he never threatened or
heard anyone threaten to have Salah sexually assualted. (/d. at 1222.)

Similarly, Nadav said that he never physically abused Salah, nor did he personally

observe others do so or hear of others physically abusing him. (/d. at 1222, 1483.) Salah never
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because he was older (40 years old) than most of the alleged terrorists whom the ISA questioned.
(Ud. at 344.)
5. Salah’s Treatment While At ISA Interrogation Facility

Haim testified about Salah’s treatment during the time the ISA questioned him from
January 25, 1993 through March 18, 1993. He testified that because of Salah’s age and his
American citizenship, the ISA treated him more favorably than other detainees. (/d. at 343-44.)
He also testified that the ISA realized that Salah was high up in the Hamas organization and they
wanted information from him to prevent future terrorist attacks. According to Haim’s testimony,
Salah ate food prepared for the prison staff rather than the food prepared for prisoners, (id. at
434), and was permitted to use the restroom whenever he wanted to do so. (/d. at 864.)

Haim denied that Defendant Salah was subjected to any of the allegations of abuse put
forth in Salah’s affidavit. Specifically, Haim denied that Salah was ever beaten, subjected to
physical pressure, stripped naked, handcuffed in an interrogation room for long periods of time,
threatened with taking pictures of him naked, forced to sit in a low child’s chair, slapped, left for
long periods of time in a tiny freezing cell, denied sleep for long periods of time, subjected to
having a foul smelling sack placed on his head for long periods of time, subjected to deafening
loud music, forced to sleep on a cold floor for long periods without a mattress or blanket, placed
in dark cells, threatened with violence, threatened with murder, threatened with harm to his
family through the FBI, threatened with long detention without being brought before a judge,
threatened with long prison sentences, denied food, clothing, or worship, or subjected to extreme

heat and cold. Haim denied that he ever personally did any of these things, directed anyone to do

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PUBLIC VERSION

the handwritten statement he gave to the birds. (/d. at 1094.) As of March 18, 1993, however,
Salah knew that he had this statement. (/d. at 1098.) Nadav testified that Salah agreed to meet
with him and discuss the contents of the written statement that he gave to the birds. (/d. at 1098-
99.) Salah told Nadav that he would “sit with [him] and tell [him] everything, but [Salah’s]
condition is that [he] tell today everything and we will no longer sit and talk about this report.”
(Ud, at 1099.)

Accordingly, on March 18, 1993, Salah began talking to Nadav about his written
statement to the birds. (Jd.) Nadav received Haim’s permission to record the statement, and he
recorded it in its entirety. (/d. at 1099, 1102-03; Gov. Exs. 3/18/93 Tapes 1-5; Gov. Exs. Tape
English Translations SH 1-5.) Nadav did not disclose to Salah that he was recording the session.
(Tr. at 1100.) Nadav also admitted that this is the only session between Salah and an ISA
interrogator that the ISA recorded. (Jd, at 1250-01.) The session lasted approximately 5 hours.
(id. at 1100.) Nadav testified that Defendant Salah “insisted on completing the report on that
day.” (/d.) At various times during the session, Salah told Nadav that he wanted to complete
their discussion that day and thereafter not talk further about the matters. (/d. at 1179-80, 1193-
94, 1202-03.) Nadav testified that Salah told him to “[fJorget about interrogation after this.” (Jd.
at 1203.)

Nadav testified that Salah admitted that he had written the statement and further admitted
to Nadav that “all that I have written here is true.” (/d, at 1101, 1145-47.) Nadav said that Salah
never complained that he had been forced to write the report or threatened with violence or acts
of violence if he did not write it. (/d. at 1101.) Salah told Nadav that “I trust you personally.”

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12. Salah’s Experts!”

Defendant places heavy reliance on his expert witnesses. Specifically, Defendant called
Mr, Kuttab, Mr. Ginbar, and Dr. Sarraj as expert witnesses. Mr. Kuttab, Mr. Ginbar, and Dr.
Sarraj were all involved in studies of Palestinian security detainees by the ISA, and authored
various publications regarding their findings. Each one of these witnesses opined on the
techniques utilized by the ISA when questioning detainees, and some opined that the ISA used
such techniques with Defendant Salah.

Significantly, Mr. Kuttab, Mr. Ginbar and Dr. Sarraj did not examine or interview
Defendant Salah at the time of his interrogation or before testifying in court. None of them have
any personal knowledge of the interrogation.

Further, in this case, the experts did not employ the methodologies they typically
undertook when interviewing Palestinian detainees and assessing the validity of such detainees’
statements. Mr. Kuttab, for example, testified that his organization trains its investigators “not to
prompt witnesses who were giving their affidavits; not to allow others to intervene; to take a
generally skeptical attitude; to ask questions very carefully and not to ask leading questions.”
(Tr. at 1826.) Mr. Kuttab, however, did not even speak to Defendant regarding his allegations.
Mr. Ginbar testified that he normally would attempt to verify a detainee’s version of the events

by reviewing medical records and speaking to the detainee’s attorney, if possible. (Jd. at 2119-

'’ Defendant also called Mr. Feldman as a witness. The Court found Mr. Feldman
credible, but as discussed above, his testimony does not overcome the credible testimony of
Nadav and Haim and corroborating evidence.

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deprive Salah of sleep. (/d. at 236-244.) Israeli Police Officer Eliyahu — who saw Defendant on
January 30, 1993 — also testified that Salah was calm, alert, relaxed, and did not appear sleepy or
tired. (/d. at 1722-23.)

The photographs from the time in question corroborate this testimony. (See Gov. Exs.1,
1-31-93 Photograph; 2/28/93 Salah Photograph; Newspaper Photographs Group; Salah Photo
Video 1; Salah Photo Video 2; Salah Photo Video 3.) The photographs do not depict any signs
of sleep deprivation.

Contrary to Defendant’s suggestion, the ISA Interview Logs do not prove that he was
sleep deprived. Although they show that Defendant was questioned in the middle of the night
and for lengthy periods of time, they do not overcome the credible testimony of the witnesses
regarding Salah’s alert and rested state. Furthermore, the law does not require law enforcement
to question a detainee between the hours of 9:00 a.m. and 5:00 p.m. The Logs reflect that after
his initial questioning session when he arrived at the Ramallah facility on January 25, 1993, the
ISA questioned Defendant Salah during the middle of the night on January 27 (between 1:50 a.m.
and 4:00 a.m.), January 28 (between 2:05 a.m. and 5:50 a.m.), February 2 (between 2:50 a.m. and
8:15 a.m.), February 4 (between 12:30 a.m. and 1:30 a.m.), February 7/8 (between 11:05 p.m.
and 1:00 a.m.), and February 9 (between 1:30 a.m. and 6:40 a.m.). (Gov. Exs, 1/27/93 1:50 a.m.,
1/28/93 2:05 a.m., 2/2/93 2:50 a.m., 2/4/93 12:30 a.m., 2/7/93 11:05 p.m., 2/9/93 1:30 a.m.)
Thus, the ISA questioned him in the middle of the night on 6 evenings out of 52 evenings in

custody between the time of his arrest and his March 18, 1993 statements.

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them, observed anyone doing them, or heard of anyone doing them. (/d. at 236-244.) Although
Haim testified that he never kept Salah in wait with a hood on his head, he noted that it was
possible for security reasons during transfer that his head was covered. Haim testified that he
never saw that happen, but he acknowledged that it could have happened. (ld. at 295-96, 306-
08.)

Haim further testified that Salah was never forced to sit in a child-like chair. (Jd. at 295-
96.) The Interrogators were forbidden, pursuant to Haim’s order, from placing Salah in small

child-like chair. (/d. at 343.) Haim admitted, however, that, in general, ISA

REDACTED PURSUANT TO CIPA

Haim testified that Salah requested to remain at the ISA interrogation facility during the
evenings to sleep, rather than return to the prison facility at Ramallah. (/d. at 434, 854, 869.)
According to Haim, the ISA accommodated Salah’s request and provided him with a mattress
and two blankets in the ISA interrogation room so he could sleep at night. (/d. at 239, 434, 854,

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PUBLIC VERSION

in detail supra, unless the United States was acting in a joint venture with the Israeli authorities
at the time Defendant Salah made his statements to them, Defendant’s request for an attorney to
the ISA “cannot be extended to require the United States officials to proceed as if that request
was made of them.” /d. (citations omitted). Such a requirement would impose the United States’
laws on all foreign officials where the United States does not have any involvement in the foreign
investigation or interrogation.

Here, there is no evidence that the United States was acting in a joint venture with Israel
or was attempting to circumvent Defendant’s rights in the United States through Israeli officials.
Furthermore, here, unlike in Yousef, there were no charges pending against Salah in the United
States in 1993 and there is no evidence that the United States had any pending investigation
against him.

The record is unclear as to precisely when Defendant Salah saw an attorney while he was
in Israeli custody. There is some evidence that he did not have access to an attorney for 14 days.
The American Consulate documents report that Defendant Salah met with an attorney on January
31, 1993, (Def. Ex. Salah Con, Docs at 42.) Either way, Defendant received an attorney within
the time limits provided under Israeli law, and in fact, before the law required such access. (Tr.

at 431-32.)

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that the operation would take place “as a retaliatory act for the sake of the big Mujahid, the
Hamas commander,” namely for Salah’s arrest by the Israelis. (Tr. at 1174; Gov. Ex. Tape 3
English Translation SH at 33.) This taunting exchange corroborates Haim’s and Nadav’s
testimony.

In essence, given these circumstances and the credible and corroborated testimony of
Nadav and Haim, the Court concludes that the government has proven by a preponderance of the
evidence that Defendant voluntarily made the statements at issue. Of course, in order to admit
such statements at trial, the government will have to lay the appropriate foundation since hearsay
evidence is not admissible at trial. The Court will now specifically address the specific six
statements upon which the parties have focused.

C. Specific Statements

The above findings of fact pertain to the totality of circumstances surrounding the
statements Defendant made to the Israeli authorities during the period of January 25, 1993
through May 18, 1993, although the questioning was essentially over after March 18, 1993.
Given the different circumstances surrounding some of the specific statements at issue and the
parties’ focus upon these statements, the Court will address separately the following statements
allegedly made by Defendant Salah: 1) the January 30, 1993, statement to INP Officer Eliyahu;
2) the January 27, 1993 and February 21, 1993 statements to INP Officer Suleiman; 3) the signed
agreement and maps regarding the burial site of the body of Sa’doan; 4) the handwritten

statement made to the birds; and 5) the March 18, 1993 statements.

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everything that he gave in the reports of the birds, including activities that he did not mention in
the reports with the birds.” (Tr. at 1146.)

Salah claims in his affidavit that Nadav inquired into his written statement, and he told
Nadav that he had not supplied the information. (Salah Aff. at 29.) Salah avers that Nadav
ordered him to “go along with it, and made it clear” that if he did not, “the abuse and
deprivations would continue.” (/d.) Salah claims that he had no choice but to submit to this use
of the statement for interrogation on March 18, 1993. This assertion by Salah is completely
discredited by the evidence presented at the suppression hearing — in particular, the audio-taped
session where Nadav and Salah reviewed the handwritten statement in detail. Indeed, the taped
conversation’? and Nadav’s testimony support that Salah was responding on his own free will to
Nadav, and, in fact, engaging in friendly banter with him.

a. Salah Acknowledged The Handwritten Statement As His Own

During the session with Nadav, Salah openly and willingly confirmed a mistake in his
handwritten statement. (Tr. at 1176-78.) Not only does this correction support that Salah was
the source of the information in the handwritten statement, it also corroborates that he voluntarily
provided the information. At various times, Salah also corrected Nadav’s understanding of the
statements. (See e.g. Gov. Ex. Tape 1 English Translation SH at 35.)

As he was talking to Nadav and providing him with information, Defendant Salah even

told Nadav, “I mean, not everything is written here.” (Tr. at 1131; Gov. Ex. Tape 2 English

'° The Court is not considering the statements made on the tape for the truth of the matter.
The fact that Defendant even made such statements reflects his state of mind.

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1, CIPA Overview

The suppression hearing involved the disclosure of a substantial amount of classified
information. CIPA sets forth specific procedures for the treatment of classified information.
CIPA’s “fundamental purpose is to ‘protect { ] and restrict[ ] the discovery of classified
information in a way that does not impair the defendant’s right to a fair trial.’” United States v.
Dumeisi, 424 F.3d 566, 578 (7" Cir. 2005) (quoting United States v. O’Hara, 301 F.3d 563, 568
(7" Cir. 2002)). CIPA “is essentially a procedural tool” for a court to address “the relevance of
classified information before it may be introduced.” Jd. (citing United States v. Wilson, 901 F.2d
378, 379 (4" Cir. 1990)). CIPA is designed “to protect classified information from unnecessary
disclosure at any stage of a criminal trial.” O’Hara, 301 F.3d at 568. See also United States v.
Apperson, 441 F.3d 1162, 1193 n.8 (10" Cir. 2006). One court has also noted that “CIPA is a
procedural statute, and the legislative history of it shows that Congress expected trial judges to
fashion creative solutions in the interests of justice for classified information problems.” United
States v. North, 713 F.Supp. 1452, 1453 (D.D.C. 1989) (citations omitted). See also United
States v. Libby, No. 05-394, __ F.Supp.2d __, 2006 WL 862345, at *3 (D.D.C. Apr. 5, 2006).

CIPA defines classified information as “any information or material that has been
determined by the United States Government pursuant to an Executive order, statute, or
regulation, to require protection against unauthorized disclosure for reasons of national security
ww” 18 U.S.C. App. 3, § 1(a). “{I]nformation provided to the United States Government by a
foreign government ... with the expectation that the information, the source of the information, or

both, are to be held in confidence” or “information produced by the United States pursuant to or

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PUBLIC VERSION

REDACTED PURSUANT TO CIPA

Defendant did not stipulate to any of this information.
3. Constitutional Challenges
Defendant argues that his Due Process rights and Sixth Amendment right to confrontation
were violated because 1) the ISA witnesses refused to answer certain questions that called for
classified information, and 2) Defendant did not have the opportunity to hear the classified

evidence or cross examine the witnesses during the Court’s limited ex parte testimonial hearings

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PUBLIC VERSION

had made a mistake on the map regarding the location of one of the roads. (/d. at 415-18.) As
Haim stated, “I am convinced that Muhammad Salah was seriously willing to help us find the
body. He just made a mistake with regards to the junction, that’s all.” (/d, at 416-17.)
9. Judith Miller

Haim also testified about a visit from New York Times Reporter Judith Miller to the ISA
interrogation facility at Ramallah during Salah’s custodial interrogation in February 1993. (/d. at
440-48, 461-62.) She came with an interpreter, although Haim testified that he thought Ms.
Miller understood Arabic. (Jd. at 446-47, 539.) Haim further testified that he received an order
from his superiors that Ms. Miller was coming to observe an interview of Defendant Salah. (/d.
at 441-42.) Haim admitted that this procedure was unusual, and in fact, had not occurred before
or after Ms. Miller’s visit. (/d. at 530-34.) One of the reasons his supervisors permitted this visit
was because the government of Isarel wanted to convince the FBI that terrorist activities were
taking place in America of which they were unaware. (id. at 441-42, 462.)

REDACTED PURSUANT TO CIPA

According to Haim, Salah initially refused to allow Ms. Miller to observe an interview,
but subsequently, Salah agreed to it. (/d. at 443.) Haim “received Ms. Judy Miller to the
facility” ad he “explained to her the rules of the game.” (Jd) The ISA allowed Ms. Miller to
observe and hear Nadav questioning Salah through a monitor — which provided for direct, live
feed — without recording the conversation. (/d. at 444, 446, 554.) When Nadav finished his
questioning, Ms. Miller met with Nadav to “ask him the question that she wanted to be asked.”

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PUBLIC VERSION

20.) Mr. Ginbar, however, did not review any medical records in this case or speak to Mr.
Feldman about it. In fact, both Mr. Kuttab and Mr. Ginbar only reviewed Defendant's affidavit
before giving their opinions.

Similarly, Dr. Sarraj testified that it was his practice to take very deliberate steps to
ensure that the information he received from former detainees was credible. (/d. at 2482.) He
admitted that he did not take any of those steps regarding Defendant Salah and he did not know if
any such steps were taken regarding Defendant's affidavit. (/d. at 2482.)

Instead of evaluating Defendant’s assertions using precautions typically taken by them in
assessing credibility, these experts based their opinions regarding the voluntariness of Salah’s
statements on his untested affidavit. Accordingly, the Court gives their testimony little weight.

Further, while the Court gives weight to their testimony regarding techniques used against
Palestinian detainees, that testimony does not overcome the credible testimony of Nadav and
Haim, as well as the corroborating evidence, under the totality of the circumstances. None of
their testimony pertains to the events that actually took place regarding Defendant Salah while in
the custody of the ISA.

13. Rule 404(b)

Mr. Al-Batsch and Mr. Qatamesh testified as fact witnesses for Defendant pursuant to
Federal Rule of Evidence 404(b). Although the Federal Rules of Evidence do not apply to
suppression hearings, the Court permitted Defendant to offer the testimony of Ahmed A]-Batsh
and Ribhi Qatamesh under a Rule 404(b) theory. Specifically, Defendant Salah claims that their

testimony is “relevant to establish a common plan or scheme of torturing and coercing

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and their interview session lasted approximately an hour and a half. (/d. at 959, 966, 969, 1238.)
Nadav described Salah as alert and not overly tired during this session. (/d. at 968.) He further
testified that Salah did not have a hood on his head and his clothes were not dirty or torn during
this meeting. (/d. at 967.) Nadav did not observe any bruises on Salah at this initial meeting,
although Nadav admitted that he could not observe those portions of his body that were covered
with Salah’s clothing. (/d. at 1286-87.) Salah was handcuffed at the beginning of this meeting,
and Nadav uncuffed him immediately upon entering the room. (Jd. at 966-67.)

Nadav testified that from this initial encounter with Salah, they had “good chemistry”
between them which “impacted the relationship we had and it was a very good relationship.” (Jd.
at 960.) He further testified that “the relationship between us is based on friendship.” (Jd. at
1114-15.) Nadav described Salah as highly intelligent and polite. (/d. at 967-68.) Salah’s
interrogation sessions took place at the ISA facility in Ramallah and Nadav never had a gun or
weapon with him when he questioned Salah. (/d. at 968.)

2. Treatment of Salah

Both sides extensively questioned Nadav about Defendant Salah’s treatment while he was
in custody and while Nadav and others questioned him. In the course of this testimony, Nadav
directly denied the averments in Salah’s affidavit.

Nadav described the interrogation rooms where he typically questioned Defendant Salah.
According to Nadav, Salah asked to remain in these interrogation rooms at the end of each
session, including the evenings, rather than being transferred to the prison facility at Ramallah,

“because of the good atmosphere during the interrogation.” (/d. at 963, 1570.) Nadav explained

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PUBLIC VERSION

detained and has no knowledge of how the ISA agents treated Defendant Salah in 1993. (Jd. at
2540-41.) Further, he is not an American citizen and he is not a high ranking member of Hamas.
Cd. at 2450.)

J. Ribhi Qatamesh

Ribhi Qatamesh also testified via video conference from the City of Ramallah. Qatamesh
is a 51 year old Palestinian attorney. (/d. at 2551-52.) The Israeli military arrested Qatamesh in
March of 1994 at his home. (/d. at 2552.) Qatamesh testified that he was suspected of being an
activist with the Popular Front for the Liberation of Palestine, yet the Israelis never charged him
with a crime. (/d. at 2581-82.) At the time of his arrest, the officers placed him face down in a
vehicle and transported him to the Al Moscobya facility in Jerusalem. (Jd. at 2552.)
Subsequently, they transferred him to the Ramallah interrogation facility. (id. at 2552-53.)
While at Ramallah, Haim was in charge of Mr. Qatamesh’s interrogation. (/d. at 2554.)
Qatamesh was questioned at these facilities for two to three months. (/d. at 2573.) Since his
release, Qatamesh has spoken publicly on numerous occasions about his treatment. (/d, at 2575.)

Qatamesh testified that while he was detained, he was forced to sit in a small, slanted
chair and was tied to the chair. (/d. at 2554-55.) In addition, they tied his legs to the chair and
his hand behind his back. (/d. at 2555.) He testified that they covered his head with a hood that
“smelled rotten.” (/d.) According to Mr. Qatamesh, they also played loud music in the facility
and kept his cell cold. (/d. at 2555-56.) At times, Mr. Qatamesh was held in a small room with
one door and no windows. (id. at 2556.) Mr. Qatamesh testified that the Israelis threatened him
with administrative detention and kept him in administrative detention for four years without

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PUBLIC VERSION

“totally negated.” (Tr. at 501.) In addition, Salah told “REDACTED PURSUANT TO CTPA —
that he lied in court and complained” about Haim “as if [he] were — [he] committed

violence against him because [Salah’s] attorney told him to do so; because, otherwise, his

testimony ... will damage him a lot or will hurt him a lot. And, in such a way, he tried to

disqualify the testimony that he had given.” (/d.. at 501-02.)

REDACTED PURSUANT TO CIPA

(Gov. Ex. 3/5/93 Log Translation SH at 15120.)

Even during his mini-trial'* to suppress his statements in Israel in November 1994, Salah
testified “As for violence, they didn’t use physical violence. Haim only waived his hand towards
my face, but he didn’t hurt me.” (Gov. Ex. Salah Zuta Testimony Translation SH, at 383.) This
testimony from Salah himself contradicts his affidavit in this case where he claims that Haim
abused him to the point of being able to recognize “the feel of [Haim’s] hand when he hit me.”
(Def. Ex. 25 at { 10.)

Finally, the Court finds telling Salah’s audio-taped statement to Nadav from their March

18, 1993 session. During that session, Salah told Nadav that “if I wanted to be defiant with

'6 Given that the Court does not have an official transcript from this proceeding and the
Court recognizes Mr. Feldman’s testimony that Defendant Salah was not able to complete his
testimony during the hearing, the Court places substantially less weight on this piece of evidence
than on the live testimony and other evidence before the Court.

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Prior to January 30, 1993, Eliyahu did not have any involvement with Defendant Salah.
He testified that he received a call the evening before and was told to come early in the morning
to take testimony. (/d. at 1752.) When he arrived to take Salah’s testimony, he spoke with either
Nadav or Haim, and reviewed the ISA logs, although he could not remember which specific logs.
Eliyahu was informed that the Prime Minister of Israel was waiting for the results of Salah’s
statement, thus he knew his assignment was important. (/d. at 1760.)

Eliyahu testified that he interrogated Defendant Salah in Arabic — a language they both
spoke — for approximately two hours, although some evidence suggested it was longer. (/d. at
1761-62.) He testified that Salah was calm, relaxed and “spoke in a regular manner.” (Jd. at
1722.) He was polite, alert and did not appear sleepy or tired. (/d, at 1722-23.) After general
conversation, including Salah’s statement that he had translated the Koran into English, Eliyahu
obtained background information from him and then took his statement. (/d. at 1723-1726.)
During that time, Eliyahu wrote down “word for word” what Salah said to him in a six page
statement. (Jd. at 1731; Gov. Ex. 1/30/93 Salah Statement.) Officer Eliyahu conceded that
portions of Salah’s January 30 statement were identical to portions of the ISA activity
memorandum from January 28, 1993. (Tr. at 1784-92.) He denied, however, copying the
information and insisted that Salah independently gave him the information in the statement. (id.
at 1788, 1791-92.) Although their conversation took place in Arabic, Eliyahu wrote the
statement in Hebrew, a language Salah does not read or write. (/d. at 1726-1727; Gov. Ex.
1/30/93 Salah Statement.) Eliyahu knew that Salah did not speak Hebrew, (Tr. at 1755-56.)

Officer Eliyahu further admitted that he knew how to write in Arabic, but did not do so. (/d. at

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Chaparro-Alcantara, 226 F.3d 616, 621-22 (7" Cir. 2000)). See also United States v. Williams,
617 F.2d 1063, 1090 (5" Cir. 1980) (“a violation of international law that is not also a violation
of the Constitution would not call for the exclusionary rule to be applied to suppress any
evidence obtained as a result of the violation.”) Because the Convention does not provide for
suppression of evidence and neither do the laws of the United States for the reasons discussed
above, Defendant’s international law argument fails.

Even if the Convention provided for suppression, the Court would not suppress
Defendant’s statements in this case because the government has proven by a preponderance of
the evidence that Defendant voluntarily made these statements, that they were the product of

rational intellect and his own free will, and that they were not the result of torture.

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(d. at 444, 543.) Haim stated that Ms. Miller did, in fact, dictate some questions for Nadav to
pose to Salah, and that Nadav thereafter asked Salah these questions. Haim testified that “[s]he
again asked to ask a few more questions. She heard everything. She understands Arabic. And
that is how we ended it.” (/d. at 446.)
10.‘ The “Birds”

Because the ISA did not believe that Defendant Salah was providing them with complete
and truthful information, they decided to temporarily cease their questioning of him and instead
planned a “bird drill.” (/d. at 477-78.) Haim described a “bird drill:”

It is a group of collaborators with the ISA who are located in prisons, not in the
interrogation facilities; and they simulate terrorist command centers in prisons...

REDACTED PURSUANT TO CIPA

From approximately February 28, 1993 through approximately March 5, 1993, Salah’s

bird operation took place. (/d. at 488-94.)

REDACTED PURSUANT TO CIPA

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continuity of the interrogation, as well as other factors such as whether weapons were present and
the number of interrogators. Ashcraft v, Tennessee, 322 U.S. 143, 153-54, 64 S.Ct, 921, 926, 88
L.Ed. 1192 (1944) (listing continuous interrogation by multiple interrogators as factor making
confession involuntary); Withrow v. Williams, 507 U.S. 680, 693, 113 S.Ct. 1745, 1754, 123
L.Ed.2d 407 (1993) (listing length, continuity, and location of interrogation as factors under
totality of circumstances); Ceballos, 302 F.3d at 694 (stating that totality of circumstances
includes “the duration and nature of questioning”); United States v. Brooks, 125 F.3d 484, 492
(7" Cir. 1997) (listing nature of interrogations as relevant factor in examining confession).

Third, the Court takes into consideration the characteristics of the accused. In examining
the totality of the circumstances surrounding the confession, the Court “analyze[s] coercion from
the perspective of a reasonable person in the position of the suspect.” United States v. Huerta,
239 F.3d 865, 871 (7" Cir. 2001). The characteristics of the accused that the Court considers
include “the defendant’s age, education, intelligence level, and mental state.” United States v.
Gillaum, 372 F.3d 848, 856-57 (7" Cir. 2004) (quotations omitted). “Absent a showing of some
type of official coercion, however, a defendant’s personal characteristics alone are insufficient to
render a confession involuntary.” Watson, 122 F.3d at 453 (citing Connelly, 479 U.S. at 167, 107
S.Ct. at 521).

B. Confessions to Foreign Authorities

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), affords certain
warnings to individuals in custodial interrogations in the United States before they speak to law
enforcement. As the Supreme Court has described, these warnings include: a suspect “has the

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information to a foreign functionary is not sufficient involvement for the Government to be
considered a participant in acts the foreign functionary takes based on that information.” Jd. at
270 (citing Stonehill v, United States, 405 F.2d 738, 746 (9" Cir. 1968), cert. denied, 395 U.S.
960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969); Gold v. United States, 378 F.2d 588 (9" Cir. 1967);
Birdsell v. United States, 346 F.2d 775, 782 (5" Cir. 1965), cert. denied, 382 U.S. 963, 86 S.Ct.
449, 15 L.Ed.2d 366 (1965); Shurman v. United States, 219 F.2d 282 (5" Cir. 1955), cert. denied,
349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253 (1955); Sloane v. United States, 47 F.2d 889 (10" Cir.
1931)). Because there was no evidence that the FBI agents took “an active part in interrogating
or searching the suspects or in selecting evidence to seize,” the Seventh Circuit rejected the joint
venture argument. /d. Indeed, “[m]ere presence of federal officers is not sufficient to make the
officers participants.” Jd.

As noted above, there is no evidence that the United States was involved in any way with
the Israeli authorities in connection with their arrest and search of Defendant Salah on January
25, 1993. Accordingly, the joint venture exception does not apply.

B. Shocks the Conscience

Although the issue was not before the Seventh Circuit in Marzano, many courts have
recognized a second exception to the rule that the Fourth Amendment does not apply to searches
and seizures conducted by foreign governments on foreign soil ~ where the foreign law
enforcement officials’ conduct shocks the conscience. See, e.g., Rosenthal, 793 F.2d at 1230-31
(exception where “the conduct of the foreign officers shocks the conscience of the American
court); United States v. Hensel, 699 F.2d 18, 25 (1" Cir. 1983) (same); Angulo-Hurtado, 165

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Nadav responded to Salah’s inquiries: “I will tell you how. I knew that you were going
to produce the papers... I used a tactic on you.” Nadav explained, “There are always spies. There
are ... As you know, in each eh ... eh, I can put in any place, if want ... eh. Why did I send you
to Hebron? As an example.” (Gov. Ex. Tape 5 English Translation SH at 50.) The
voluntariness of Salah’s statement is further supported by Nadav’s credible testimony that Salah
never complained to him about his treatment by the birds. As Nadav testified, Salah “did not
understand that it’s an exercise with collaborators. And from my experience, it indicates in the
prison — that in the prison it was like regular detainees and his treatment was good. That in such
a situation, from my previous experience, if there was any problem at that moment, he would
have told me in which way he delivered the reports. From my standpoint, it’s another indication
that his treatment during the exercise was good.” (Tr. at 1148.) During the entire over five hour
audio-taped session on March 18, 1993 where Defendant reviewed the handwritten statement in
detail, Salah never once indicated that he did not write the statement, that the birds had coerced it
out of him, or that the birds had tortured him or treated him unfairly. Given their relationship, it
is quite likely that Salah would have informed Nadav if the birds had abused Salah.

In addition, the medical records also reflect that Salah saw medical personnel on both
March 1, 1993 and March 7, 1993. (Gov. Ex. Medical Records 2 Trans SH at 13806.) Both
entries reflect that he was continuing treatment for his ulcer. (/d.) Significantly, on March 1,
1993, the entry reads “No complaints.” (/d.) The March 7, 1993 entry similarly states: “Feels
good, doesn’t complain.” (/d.) These medical visits during or shortly after the bird operation
where Defendant did not complain about anything and the medical personnel did not note any

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that. Given that Salah knew of his handwritten statement, knew that the ISA had it, reviewed it
in detail with Nadav on March 18, 1993, questioned Nadav multiple times regarding how the ISA
obtained the statement, and learned from Nadav that the ISA used a “tactic” in obtaining the
statement, it is suspect that he did not inform Mr. Feldman of either the statement or the alleged
abuse he now claims took place by the birds to obtain the statement.

Furthermore, Defendant executed an affidavit on approximately November 8, 1995 —
while in Israeli custody — in connection with the extradition of Mousa Mohammed Abu
Marzook, his co-defendant in this case. (Gov. Ex. 11/8/95 Salah Aff.) He executed it “on behalf
of Dr. Mousa Abu Marzook in response to Israel’s request that he be extradited to that country.”
(id. at 2.) The affidavit, in essence, denied the truth of any of the information Salah had
provided to the ISA regarding Marzook — including the significant details regarding Marzook
contained in the 53 page statement — on the basis that “[a]ll of these statements are the product of
a systematic employment of physical and mental torture, terror and coercion.” (/d, at | 7.)
Regarding the birds, Salah averred that they “threatened [him] with violence and death” and said
that he “could exonerate [himself] in their eyes by detailing everything [he] knew about Hamas
and its activities, and that [he] must put these details in writing.” (/d. at 9.) At that time, Salah
did not claim that the birds physically abused him as he currently contends. (See Salah Aff. at {]
24-26.) In fact, based on the evidence before the Court, his affidavit in this case is the first time
that he claims the birds physically abused him.

Salah also claimed in his November 8, 1995 affidavit that the birds said that he could

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in total, including 11 hours® of extensive cross-examination by Defendant’s counsel. Haim
testified regarding the ISA and its organizational objectives. Haim testified that the ISA — whose
motto is “defend but not be seen” (Transcript of Suppression Hearing (“Tr.”) at 836) — has an
overall agency mission aimed at preventing the acts of terrorists and terrorist organizations, as
well as acts aimed at harming Israel’s state security generally. (/d. at 218.) To this end, the ISA
collects and receives intelligence information for safeguarding and promoting state security
interests (id.), preserves Israel’s state secrets (id. at 219), and insists that the true identities of ISA
agents remain secret’ (id. at 836). Incidental to preventing terrorist activities, the ISA also
develops evidence for the prosecution of criminal cases. (/d. at 227.)

Haim also described the role of the Israeli police. (/d. at 227-29.) The Israeli police, not
the ISA, determine what criminal charges are brought against an individual. (/d. at 227.) The
Israeli police also have the principal authority for investigating criminal cases. (/d.) In addition,
Haim explained that Israeli police officers — not ISA interrogators — take testimony or written.
statements from detainees. (/d. at 228.) Haim stated that he had no authority over the police,
other than requesting that they come to the ISA facility to take testimony from an individual in
custody. (fd, at 228.)

During the relevant time period, Haim worked as an interrogator at the Ramallah ISA

5 The time periods refer to actual testimony time — breaks and attorney argument are
excluded.

7 Indeed, Haim and Nadav are pseudonyms. The Court did not require them to disclose
their true identities at the suppression hearing because their names are classified under Executive
Order 12958. See Salah, 412 F. Supp. 2d at 923.

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the Court does not find that Salah was sleep deprived to the point of rendering his statements
involuntary.
9. American Consulate Contemporaneous Documentation

The American Consulate contemporaneous documentation reflects that on January 25,
1993, the ISA notified the American Embassy in Tel Aviv of Salah’s pending arrest. (Gov. Ex.
CDG at 005.) The report notes that “this is the first time in Consular Section memory that the
[ISA] has passed on such notification about an arrested [American Citizen.}” (/d.) The Consulate
General did not, however, meet with Defendant until January 31, 1993, even though they
attempted to do so on January 29, 1993.

The documentation specifies that Salah “reports no mistreatment.” (Gov. Ex. CDG at
003.) The report further notes that Salah “appeared relaxed and in good physical condition.”
(d.) He indicated that prison medical personnel had provided medication for an ulcer condition
and that he requires no further treatment or medication from the family.” (/d.) The Court finds
this report that was made less than six days after Defendant’s arrest important. It corroborates
Agent Priestap’s testimony regarding Mr. Razek’s assessment of no abuse. It further
corroborates Nadav’s and Haim’s testimony.

Similarly, the second visit to Salah does not reflect any complaints of abuse. During the
American Consulate’s third visit to Salah on February 12, 1993, Salah noted for the first time to
Mr. Razek that “during his first two days of imprisonment, he was hooded, tied with his hands
behind him and forced to sit on a low stool. Since that time he has been alone in a room, but

otherwise relatively comfortable. He is given a Koran, paper and pencil. Prison authorities,

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of interrogation. (/d. at 1841.) Mr. Kuttab further opined that another technique used by the ISA
was wearing down a detainee’s will “wearing down his — physically his — ability to withstand the
questioning. This is done either physically — you know, beating up, making him sit in totally
uncomfortable positions for hours and hours and hours on end, sleep deprivation, denial of going
to the bathroom.” (/d.) He further testified that the ISA used strategies, including threatening
detainees and “good cop, bad cop.” (/d. at 1842.)

Mr. Kuttab also opined that the ISA forces detainees to sit in small chairs with “crooked
legs” and places hoods on their heads. (/d. at 1845.) He further opined that while in that
position, the ISA guards would “slap you or hit you on the head or knock on your cell to make
sure you don’t fall asleep and use that period to rest.” (/d.) He also opined that the ISA placed
detainees in tiny cells where they cannot sit down or lie down. (/d. at 1846.)

Mr. Kuttab also opined regarding the confession rate by security detainees. He testified
that his studies showed that eighty-five percent of detainees were interrogated, and ninety-four
percent of those who were interrogated signed a confession. (/d, at 1844.)

During his testimony, Mr. Kuttab also asserted his opinions regarding the birds. Mr.
Kuttab testified that the birds pretend to be Palestinian prisoners who welcome you and inquire
why you are in prison, (id. at 1849), but then they subsequently turn against you and force you to
prove that you are not a traitor. (/d. at 1849-50.) Mr. Kuttab opined that the birds intimidate
detainees, and “hit[] on their contacts with the community.” (Jd. at 1850.) He testified that the
birds sometimes force detainees to write down information in Arabic. id.)

According to Mr. Kattab, United States citizens are not given special treatment while

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Salah’s statement to Nadav that Nadav was his friend. The conversation between Nadav and
Salah was open and friendly. As demonstrated by the recordings and the transcripts, Nadav did
not have a coercive attitude. To the contrary, Nadav’s tone on the tapes is consistent with his
demeanor observed by the Court during the hearing - calm and sincere. The tapes also
corroborate Nadav’s testimony that Salah was alert, attentive, interactive, responsive, and
confident. The audio-tapes were particularly instructive on Salah’s will, his relationship with
Nadav and Nadav’s demeanor.

e. Dr. Sarraj’s “Opinion”

Although Dr. Sarraj opined that Salah was not acting of his own free will when he made
these statements or wrote the 53 page handwritten statement, the Court gives little weight to this
testimony. First, Dr. Sarraj never examined Defendant Salah at the time in question or in
advance of the hearing. Second, his opinion that “[tJhere is no Palestinian today in Gaza or the
West Bank that is exercising his free will” calls Dr. Sarraj’s objectivity into question. Third, Dr.
Sarraj testified that he had only reviewed certain portions of the tapes from the March 18, 1993
session. His opinion was based on those portions and Defendant’s affidavit. This testimony is
not enough to overcome the substantial evidence corroborating that Defendant voluntarily made
these statements and the Court’s own complete review of the tapes and the transcript.

Furthermore, Nadav credibly testified that Salah was not a changed man from January 26
to March 18. “I can say that the man I met on the 26" was polite, a smiling person and

intelligent, such as he was on March the 18".” (Tr. at 1633.)

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statements, the opportunity to torture and coerce statements, and the intent to torture and coerce
statements.” (R. 550-1, Post Hearing Brief at 54.)

Rule 404(b) provides that evidence of prior crimes, wrongs or acts may be admissible to
prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident,” but not as propensity evidence to establish that a defendant acted in conformity with
the prior acts, Fed.R.Evid. 404(b). See United States v. Macedo, 406 F.3d 778, 792 (7 Cir.
2005). In trials, the Seventh Circuit applies a four part test to determine the admissibility of such
evidence. /d. at 793. In assessing the value of the evidence at the hearing, this test provides
helpful guidance. Namely, prior acts must be sufficiently similar in type and time to be relevant.
Jd. Here, neither Mr. Al-Batsh nor Mr. Qatamesh was an American citizen at the time the ISA
questioned him. As noted above, this factor was instrumental to the ISA’s decision to treat
Defendant Salah differently than others. In addition, neither of these individuals claimed to be a
high ranking member of the Hamas organization.

Moreover, even if the testimony of these witnesses established the Rule 404(b) objectives
sought by Defendant, the Court finds that the credible testimony of Nadav and Haim, as well as
the corroborating evidence discussed in detail above, outweigh this testimony. The Israeli
authorities arrested Defendant based on evidence of his involvement in terrorist activities. The
ISA was trying to investigate and prevent terrorist activities on Israeli soil, and Defendant made
statements to them during the course of his interrogation regarding his activities. Based on the
evidence before the Court, the government has proven by a preponderance of the evidence that

Defendant’s statements were not made as a result of physical or psychological abuse.

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privileges; the use of extreme heat or cold in locations where the ISA housed detainees; and the
deprivation of food or drink. (/d. at 2080-89.)

In Mr. Ginbar’s opinion, the ISA interrogators gave excuses regarding their use of certain
techniques: “They hood so that they don’t look at each other and exchange whatever messages;
the music so that they don’t talk to each other; and, the tying up so that they don’t attack the
interrogator.” (dd. at 2093.)

Mr. Ginbar admitted that he had never been inside one of the ISA facilities or watched an
ISA interrogation. (/d. at 2100.) He was not present when the ISA interviewed Salah, nor has he
spoken with any of the ISA interrogators who questioned Salah. (/d, at 2128.) Mr. Ginbar
reviewed the testimony from the mini-trial in Salah’s case and reviewed Defendant’s affidavit in
this case. (Jd. at 2129.) He did not, however, review any of the other evidence, including the
American Consulate files or the photographs. (/d. at 2129-30.) Similarly, Mr. Ginbar was not
aware that the ISA had audio-taped the May 18, 1993 interview session with Defendant Salah,
and he has not listened to any of the tape. (/d. at 2101.)

G. Eyad El Sarraj

Defendant called Dr. Sarraj, a psychiatrist from Palestine, as an expert witness at the
hearing to testify regarding the effect the ISA’s interrogation techniques have on Palestinian men.
He also opined on the voluntariness of Defendant’s statements.

Dr. Sarraj describes himself as a “human rights and peace activist.” (Def. Ex. 22.) He is
the Director General of the Gaza Community Mental Health Program, and Secretary General of

the Palestinian Independent Commission for Citizen’s Rights. Although Sarraj previously

45