American Airlines, Inc. et al v. Federal Bureau of Investigations, et al
Filing
34
Attachment 28
FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of Desmond T. Barry in Support re:
30 MOTION for Summary Judgment
Setting Aside the Federal Bureau of Investigations Refusal to Allow the Depositions of Certain Witnesses and Accompanying Documents.. Document filed by American Airlines, Inc., AMR Corporation. (Attachments: #
1 Exhibit 1, #
2 Exhibit 2, #
3 Exhibit 3, #
4 Exhibit 4, #
5 Exhibit 5, #
6 Exhibit 6, #
7 Exhibit 7, #
8 Exhibit 8, #
9 Exhibit 9, #
10 Exhibit 10, #
11 Exhibit 11, #
12 Exhibit 12, #
13 Exhibit 13, #
14 Exhibit 14, #
15 Exhibit 15, #
16 Exhibit 16, #
17 Exhibit 17, #
18 Exhibit 18, #
19 Exhibit 19, #
20 Exhibit 20, #
21 Exhibit 21, #
22 Exhibit 22, #
23 Exhibit 23, #
24 Exhibit 24, #
25 Exhibit 25, #
26 Exhibit 26, #
27 Exhibit 27, #
28 Exhibit 28, #
29 Exhibit 29, #
30 Exhibit 30, #
31 Exhibit 31, #
32 Exhibit 32, #
33 Exhibit 33, #
34 Exhibit 34, #
35 Exhibit 35, #
36 Exhibit 36, #
37 Exhibit 37)(Barry, Desmond) Modified on 4/29/2008 (KA).
American Airlines, Inc. et al v. Federal Bureau of Investigations, et al
Doc. 34 Att. 28
Exhibit 28
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA, . Criminal No. 1:01cr455 . vs. . Alexandria, Virginia . March 22, 2006 ZACARIAS MOUSSAOUI, . 9:30 a.m. a/k/a Shaqil, a/k/a . Abu Khalid al Sahrawi, . . Defendant. . . ........... TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME VIII APPEARANCES: FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA DAVID J. NOVAK, AUSA DAVID RASKIN, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 FOR THE DEFENDANT: GERALD THOMAS ZERKIN KENNETH P. TROCCOLI ANNE M. CHAPMAN Assistant Federal Public Defenders Office of the Federal Public Defender 1650 King Street Alexandria, VA 22314
(Appearances Continued on Following Page) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
Karen Brynteson (703) 768-8122
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Anneliese Thomson (703) 299-8595
E l e c t r o n i c a l l y signed by Anneliese Thomson (501-170-180-8434)
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A.
No. MR. TROCCOLI: THE COURT: MR. RASKIN: THE COURT: Thank you, Your Honor. Any redirect?
Anything further? No, Your Honor.
Ms. Irish, thank you for your testimony.
You are excused as a witness, I assume. MR. RASKIN: THE COURT: Yes. That means you can leave now, but you are
not to discuss your testimony with any witness who has not yet testified. Thank you. Thank you. (Witness excused.) MR. NOVAK: THE COURT: Robert Cammaroto, please. While the witness is coming in, counsel,
THE WITNESS:
would you approach the bench for a second. (Bench conference on the record.) [--- Redacted
Anneliese Thomson (703) 299-8595
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Karen Brynteson (703) 768-8122
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said the following: That a person had indicated they were a member of al Qaeda, that they were arrested while they were getting inappropriate flight training in Minnesota -MR. ZERKIN: I am going to note the same objection to the hypothetical, Your Honor, for the reasons stated. THE COURT: This avoids, I think, that problem, so I will overrule the objection at this point. MR. NOVAK: Thank you, Judge. BY MR. NOVAK: Q. If I can continue then and ask you what type of
countermeasures you could have employed if you received intelligence information that indicated that a person had been arrested at a flight school, taking inappropriate flight training, indicating that they were a member of al Qaeda, that they were part of a larger plot to fly commercial airliners into buildings in the United States of America, and that that person, as well as others, were going to overcome and take control of the airplane through the use of short-blade knives. Could you explain to us what type of countermeasures you could, that were available to you that you could have employed as you did in the past with, using perhaps Bojinka as an example to counteract that threat? A. Yes. If we had that kind of information and especially if it
was provided in such a way that we felt the threat was exigent, immediate, we certainly could have, we certainly could have placed
Anneliese Thomson (703) 299-8595
E l e c t r o n i c a l l y signed by Anneliese Thomson (501-170-180-8434)
Karen Brynteson (703) 768-8122
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law enforcement officers at the checkpoint. At that point in time they were not stationed at the checkpoints. They were allowed to roam freely about their area of jurisdiction but had to provide a presence at the checkpoint when called. Q. Why don't we take this in steps. Why don't we start with
what if any countermeasures you could have employed on the plane itself. Was there any countermeasures that you could have implemented? A. On the aircraft, as what we saw with Bojinka and some of the
later SDs, we certainly would have insisted upon the very thorough search of the aircraft at some point before the passengers boarded, to make sure there were no weapons secreted under the seat or in a wall panel or in the paper towels in the bathroom, common places that you might have access to. Q. What if anything could you have done in relation to federal
air marshals, FAMs? A. The federal air marshals could have, of course, been
redeployed. And certainly it is conceivable that if, under the circumstances you have described, the force at that time was inadequate, we certainly could have called upon other agencies for additional manpower but that's how the original FAM program was done. They were not FAA air marshals. They were enlisted persons from the military. They were U.S. marshals. They were Customs agents. We saw that again after September 11th where we
Anneliese Thomson (703) 299-8595
E l e c t r o n i c a l l y signed by Anneliese Thomson (501-170-180-8434)
Karen Brynteson (703) 768-8122
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had to call upon other agencies to provide additional staff. Q. Could you tell us what if any impact upon the deployment of
FAMs would the information have, the fact that it is domestic, the fact that the attack is going to occur here in the United States of America as opposed to internationally? A. Well, just in terms of the operation of the FAM team itself,
there would be no impact, it is just that they would be doing domestic deployments, as opposed to foreign. The advantage there, of course, is that you don't have quite the logistical problems in moving around our own country as we would moving around in foreign countries. Q. But are you saying you would have deployed, instead of
internationally, you would have deployed them domestically; is that what you are saying? MR. ZERKIN: Objection. The question was asked in terms of what they would have done. MR. NOVAK: Strike that. I misspoke. THE COURT: Could have. BY MR. NOVAK: Q. What if any impact in terms of deployment, though, is what I
am asking, could have occurred in relation to the FAMs? A. We certainly could have redeployed the FAMs from a largely
overseas role to a largely, if not exclusively, domestic role. Q. Okay. What if any impact could that information have had in
terms of the common strategy?
Anneliese Thomson (703) 299-8595
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Karen Brynteson (703) 768-8122
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A.
Well, the common strategy, of course, was meant to deal with
the situation where the hijacker was truly not looking to injure anybody. It basically grew out of the original hijacking in the late '60s, early '70s, where what we call the homesick Cuban syndrome, they just wanted to go home and didn't want to hurt anybody, but then as hostage situations grew and were studied by the bureau and other folks, it still became clear that the longer the situation went on without anybody getting hurt, the more likely it was to resolve well. In the situation that you described, we could have revamped the common strategy or canceled it altogether in a sense, if you will, to ensure that the crews were not merely going along and cooperating with the expectation that this would have been a long, drawn-out situation, given the idea that aircraft might have been flown into buildings, the idea would have been to protect the cockpit, the flight deck of the aircrafts so no one could breach it and ensure the airplane was taken down as quickly as possible on to the ground, have the flight crew be able to provide a limitation on the access to the flight deck. Q. How would that occur? How is it that you could have changed
the common strategy, mechanically? How would that be implemented? A. That would be implemented very much through a situation like
you see within SD. The security directive would say as of this moment, the common strategy that's reflected in whatever the citation of documents were at that time, is modified and the air
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carrier under the following circumstances will follow these procedures. That would be disseminated to the air carriers. And they would either take it verbatim or reword it sometimes to fit their own corporate culture and share it, train the crews along those lines as we saw with some of the material we have looked at previously. Q. All right. Let's talk about what if any countermeasures you
could have used before somebody got on the plane. Specifically, let's talk about the use of the short-blade knives. What is it that you could have done in relation to prohibiting the four-inch blades? A. We could have modified the requirement that the air carriers
had at that time in the SSP. There was an Appendix 1 that said what items were prohibited from going onboard the aircraft, some general categories, some very specific, but it did have the exception that blades less than four inches were permitted, basically. And we could have said in a security directive -- and that would have been the appropriate vehicle -- don't allow any blades whatsoever. And that would have, of course, had to be applied at the checkpoints. Q. And would you implement the barring of all knives in the same
way that you -- could you have barred all knives in the same way you barred all liquid explosives or liquids, I'm sorry, at all in
Anneliese Thomson (703) 299-8595
E l e c t r o n i c a l l y signed by Anneliese Thomson (501-170-180-8434)
Karen Brynteson (703) 768-8122
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the Bojinka plot? A. Q. That would have been the template we would have used. Okay. Now, could you similarly, as you did with the Bojinka
plot in relation to liquids, could you have made a public announcement: Hey, don't anybody bring any blades whatsoever, because you are not allowed to take them on the airplanes any more? A. Q. A. Yes, we could have done that. What would be the reason to do that? The reason to do that would be to limit the amount of effort
the screeners would have to go through with each and every bag, as people in the general public take it seriously and say, okay, I'm not going to bring my Swiss Army knife, that would limit the amount of interaction the screeners would have giving them more time to focus on the bags in front of them. And I would draw an analogy to what we do at the holidays. And it is very common knowledge that we put out announcements every Christmas, don't carry gift-wrapped boxes, because if they have to get unwrapped, they are going to get unwrapped, and you are not going to get them back gift-wrapped. Q. And why do you that, though? Why do you tell folks don't
bring the gift-wrapped boxes at Christmastime on the airplanes? A. Because we don't want the screeners to have to deal with
irate passengers and have to go through that extra time-consuming thing of trying to take apart the gift-wrapping, and to further
Anneliese Thomson (703) 299-8595
E l e c t r o n i c a l l y signed by Anneliese Thomson (501-170-180-8434)
Karen Brynteson (703) 768-8122
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get through gift wrapping, which sometimes includes wires and staples and stuff that would make their job as screeners harder. Q. Now, when you talk about the screeners, what if any
educational steps could you have taken in terms of teaching the screeners not to allow knives to go through? A. Well, what we could have, and what was done, for instance, in
the Bojinka plot relative to liquids was in translating to the carriers the meaning of the SD, and we would normally do this in telecons with the corporate level and our local folks would interact with their local counterparts at a given airport, we would explain to them this is exactly what we're expecting you to do, this is exactly how we expect you to do it. Then, of course, we would be present at the checkpoints during operations to ensure that they were in compliance. Q. Could it be possible to stop 100 percent of all knives from
going through a screening area? A. Q. I don't believe that would be possible, no, sir. And when you create these type of security directives like
barring liquids or barring knives or whatever it is, do you factor in the fact that it is not 100 percent foolproof to stop these type of items? A. Yes, sir, we have to accept that as an acceptable level of
risk. Q. And because of that, do you view the system in terms of
multi-layers of security that you implement?
Anneliese Thomson (703) 299-8595
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