NEW YORK – A judge agreed Monday to look into whether the government acted properly when it failed to give defense lawyers videotaped interviews of a key witness against a man convicted in the bombings of two U.S. embassies.
The hearing provides Wadih El-Hage, a former associate of Usama bin Laden (search), with hope for a new trial if the judge concludes that the government erred in the trial stemming from the 1998 bombings of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.
El-Hage and three others were sentenced to life in prison after they were convicted of conspiracy in the attacks, which killed 224 people, including 12 Americans.
Lawyers for El-Hage challenged the 2001 conviction on several grounds, including that the government failed to turn over videotapes of interviews with Jamal al-Fadl, one of Al Qaeda's first members and the prosecution's first witness.
Al-Fadl identified El-Hage in court and said El-Hage received a salary from Al Qaeda and was trained to handle its payroll.
More than a year after El-Hage was sentenced, prosecutors provided the defense with transcripts of 28 hours of videotaped interviews with al-Fadl involving FBI agents and federal prosecutors, the judge noted in a written ruling.
Prosecutors said they learned of the videotapes, made while al-Fadl was in a witness-protection program, in early 2002, U.S. District Judge Kevin Duffy (search) said.
He said the government "has totally failed to give an explanation of how the tapes were made or how they came to be discovered," merely stating that they resulted from an unauthorized independent decision by one or two employees of the U.S. Marshal's Service (search), which operates the witness-protection program.
Herbert Haddad, a spokesman for the U.S. attorney's office, declined to comment.
Joshua Dratel, El-Hage's lawyer, said Monday's ruling allows the defense team "to explore the hows and whys of this taping incident."
The judge said he cannot decide whether El-Hage deserves a new trial until he learns who ordered the interviews videotaped, who paid for them, who operated the equipment, who had custody of the tapes and how they were discovered.
He indicated he likely will hold prosecutors accountable because the marshals seemed to have been acting as agents of the prosecutors' office.