1 1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 18 18 19 19 20 20 21 21 22 22 23 23 24 25 25 4acWterC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x KATHLEEN ASHTON, et al.

, Plaintiffs, v. EGYPTIAN ISLAMIC JIHAD, et al., Defendants. ------------------------------x New York, N.Y. October 12, 2004 10:00 a.m. Before: HON. RICHARD CONWAY CASEY, District Judge APPEARANCES KREINDLER & KREINDLER Attorneys for Ashton Plaintiffs BY: JAMES P. KREINDLER JUSTIN T. GREEN VINCE PARRETT MOTLEY RICE, LLP Attorneys for Burnett Plaintiffs BY: RONALD L. MOTLEY DONALD A. MIGLIORI JODI WESTBROOK FLOWERS JUSTIN KAPLAN -andALLAN GERSON HANLY CONROY BIERSTEIN & SHERIDAN, LLP Attorneys for Burnett Plaintiffs BY: PAUL J. HANLY, JR. ANDREA BIERSTEIN DICKSTEIN SHAPIRO MORIN & OSHINSKY SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 1 1 2 2 3 4acWterC Attorneys for Cantor Fitzgerald and Port Authority Plaintiffs BY: JONATHAN M. GOODMAN STACEY SAIONTZ 03 MD 1570 (RCC)

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BRODER & REITER Attorneys for Schneider Plaintiffs BY: JONATHAN C. REITER J.D. O'BRIEN & ASSOCIATES Attorneys for Tremsky Plaintiffs BY: DAVID O'BRIEN COZEN O'CONNOR Attorneys for Federal Plaintiffs BY: ELLIOT R. FELDMAN SEAN P. CARTER RICH HAILEY Attorney for Havlish Plaintiffs JOSHUA M. AMBUSH Attorney for O'Neil Plaintiffs SPEISER, KRAUSE, NOLAN & GRANITO Attorneys for Plaintiffs' Steering Committee BY: KENNETH P. NOLAN JONES DAY Attorneys for Defendants Bin Laden BY: JAMES E. GAUCH E. MICHAEL BRADLEY STEPHEN J. BROGAN MELISSA D. STEAR WILLIAMS & CONNOLLY Attorneys for Defendant Abdul Rahman Bin Kahlid Bin Mahfouz BY: PETER J. KAHN THOMAS C. VILES JOHN L. CUDDIHY WHITE & CASE Attorneys for Defendant Al Rajhi Banking & Investment Corp. BY: CHRISTOPHER M. CURRAN NICOLE E. ERB McDERMOTT, WILL & EMERY Attorneys for Defendant Jameel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 4acWterC BY: THOMAS P. STEINDLER JOSHUA L. DRATEL, P.C. Attorneys for Defendant Al-Hussayen BY: MARSHALL A. MINTZ

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8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 1 1 2 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 4acWterC PATTON BOGGS Attorneys for Defendant National Commercial Bank BY: RONALD S. LIEBMAN MITCHELL BERGER KELLOGG, HUBER, HANSEN, TODD & EVANS Attorneys for Defendant Al-Faisal BY: MICHAEL J. GUZMAN KING & SPALDING Attorneys for Defendant Arab Bank, PLC BY: RICHARD T. MAROONEY, JR. WILMER CUTLER PICKERING HALE and DORR, LLP Attorneys for Defendant Mohamed Al-Faisal Al-Saud BY: LOUIS R. COHEN DAVID P. DONOVAN SHEARMAN & STERLING Attorneys for Defendant Saudi American Bank BY: BRIAN H. POLOVOY HENRY WEISBURG DAN SEGAL BAKER BOTTS Attorneys for Defendant Abdulaziz al Saud BY: CASEY COOPER WILLIAM H. JEFFRESS JAMIE S. KILBERG GRAY CARY WARE & FREIDENRICH Attorneys for Defendants African Muslim Agency, Heritage Education Trust, International Institute of Islamic Thought, Mar-Jac Investments, Inc., Reston Investments, Inc. Safa Trust, York Foundation, Taha Al-Alwani, Muhammad Ashraf, M. Omar Ashraf, M. Yaqub Mirza, Iqbal Unus, Jamal Barzinji, Sterling Management Group, Sterling Charitable Gift Fund, Inc., Mena Corporation, Grove Corporate, Inc.

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and Sana-Bell, Inc. BY: NANCY LUQUE JAY HANSON

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 4acWterC BERNABEI & KATZ Attorneys for Defendants Dr. Abdullah M. Al-Turki, Dr. Abdulla Naseef, Dr. Abdullah Al-Obaid, Dr. Abdul Rahman Al Swailem, Sheik Saleh Al-Hussayen, Sheik Shahir Batterjee, Mushayt for Trading Company, Mohammed Al Sayed Mushayt, Sheik Hamad Al-Husaini, Saudi Arabian Red Crescent Society, Sheik Salman Al-Oadah, Sheik Safer Al-Hawali, Al Haramain Islamic Foundation, Inc. Soliman H.S. Al-Buthi, Soliman J. Khuderia, Talal M. Badkook, Dr. Adnan Basha and Perouz Seda Ghaty BY: LYNNE BERANBEI ALAN R. KABAT GILLEN PARKER & WITHERS Attorneys for Defendant Zahir H. Kazmi BY: WILMER PARKER MARTIN F. McMAHON & ASSOCIATES Attorneys for Defendants Saleh Abdullah Kamei, Al Baraka Investment & Development Corp., International Islamic Relief Organization, Rabita Trust, Dallah Al Baraka Group, LLC, Makkah Mukarrahman Charity Trust and Wael Jalaidan STEPHANIE W. FELL BRYAN CAVE, LLP Attorneys for Defendant Prince Naif bin Abdulazia Al-Saud BY: JAMES M. COLE CHADBOURNE & PARKE, LLP Attorneys for Defendant Yousef Jameel BY: JEFFREY I. WASSERMAN CURTIS, MALLET-PREVOST, COLT & MOSLE, LLP Attorneys for Defendants HRH Prince Abdullah Al Faisal Bin Abdulaziz Al Saud, Alfaisaliah Group, Faisal Group Holding Co. and Mohammed Bin Abdulrahman Al Ariefy BY: DARIA M. CIAPUTA STEPTOE & JOHNSON, LLP Attorneys for Defendant Mohammad Bin Abdullah Aljomaih BY: CHRISTOPHER T. LUTZ

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SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

6 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Case called) (In open court) THE COURT: Good morning, please be seated. THE DEPUTY CLERK: Your Honor, now before the Court this morning, In re Terrorist Attacks on September 11, 2001. THE COURT: All right. Now this morning, the two counsel, I believe, have been designated by the defendants to carry the ball on the main argument. Is that correct? MR. COOPER: Casey Cooper, on behalf of Saudi Arabia's defense minister. That is correct, your Honor. I've been tasked with being lead-off this morning. Mr. Cohen, on behalf of Prince Mohamad al-Faisal al-Saud, will follow to discuss the plaintiffs' theory of conspiracy jurisdiction and the specific allegations of jurisdiction against his client. And thereafter, I believe, five separate defense counsel will address the specific jurisdictional allegations against their respective clients. THE COURT: All right. Now, I take it you've worked it out, there will be an hour and a half on each side, and I've directed my law clerk to inform you, either stage setters or introductory arguments, we'll stick to that time limit. We'll see how it goes. We'll allow some time. I think, if you stick to your time limits, we're going to try and ask Mr. Brantley to keep you to that, then we'll allow a half hour for rebuttal. Mr. Cooper. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COOPER: Very well, your Honor. I will try my best to adhere. THE COURT: Lead off. You're at the plate. MR. COOPER: Your Honor, I'd like to address three points this morning: First, plaintiff's failure to state or to allege any traditional minimum contacts between Prince Sultan and the United States that would give rise to general jurisdiction in this Court. Second, plaintiffs' alternative theory of personal jurisdiction, which is, under the Burger King and Calder v. Jones cases in the Supreme Court, that he and scores of other defendants somehow intentionally targeted the United States with terrorism. And, third, I would like to briefly discuss jurisdictional discovery. THE COURT: Mr. Cooper, get a little closer to the microphone. MR. COOPER: Your Honor, the plaintiffs have alleged that Prince Sultan aided and abetted the 9/11 attacks by making charitable contributions to four Islamic charities which are, none of which are designated as foreign terrorist organizations by the United States either then or now. Before Judge Robertson in the Burnett action, we submitted evidence in the form of declarations and business records, demonstrating that those charitable contributions were made to two charities, the International Islamic Relief Organization and the World SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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8 4acWterC Assembly for Muslim Youth, and that those donations were made by Prince Sultan in his official capacity. They were grants of government funds issued from government bank accounts. Plaintiffs raised a factual challenge to our submission alleging that those two contributions were in fact personal. Judge Robertson declined to resolve that factual dispute and instead ruled in the alternative, as the Court knows. He ruled that if those contributions were official, Prince Sultan's actions were clearly covered by sovereign immunity. If, on the other hand, they were personal, the Court lacked personal jurisdiction over his actions. The two grounds for Judge Robertson's rulings on personal jurisdiction were, one, no minimum contacts were alleged, or virtually no minimum contacts were alleged; and, two, the plaintiffs, in Judge Robertson's words, stopped well short of alleging that Prince Sultan expressly aimed his activities towards the forum. Your Honor, the law of the facts remains the same. We would urge your Honor to adopt Judge Robertson's reasoning and his findings. Let me speak briefly, your Honor, on minimum contacts, which, of course, is the starting point on any analysis of personal jurisdiction. I would be brief because the plaintiffs have alleged virtually none. The only allegation of traditional minimum contacts found in any of the complaints is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 4acWterC that Prince Sultan is the chairman of Saudi Air Lines, which does business in the United States. We do not dispute that allegation. In fact, he's the ex officio chairman. But be that as it may, that allegation is clearly not sufficient to establish jurisdiction over him or to entitle the plaintiffs to discovery as to any other traditional contacts that may or may not exist. The plaintiffs really make a different argument here. They rely on the Burger King case in the Supreme Court and Calder v. Jones to argue that Prince Sultan and scores of other defendants expressly aimed his conduct towards the United States. Now, that is the core issue of this discussion, your Honor. What does it mean to expressly aim or to intentionally target one's conduct towards the forum? Without belaboring the facts of Burger King and Calder and recent cases in the Second Circuit and the Southern District, interpreting them, namely, In re Magnetic Audiotape and the Time, Inc. v. Simpson cases which are cited in our briefs, those cases say four things regarding what it means to expressly aim one's conduct at the forum. The defendant must be a primary participant in the wrongdoing that gave rise to the plaintiffs' actions. Exact language for Calder. He or she must be personally intimately involved in that wrongdoing. Its own conduct as opposed to the conduct of third parties must be intentionally targeted towards SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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10 4acWterC the forum. And, finally, foreseeability of causing injury in the forum is insufficient to satisfy the test for jurisdiction under those cases. Your Honor, none of those requirements are met here. And let me be more specific. I suspect that Mr. Motley and Mr. Carter will stand up today and recount for the Court all of the so-called evidence that they have put into the record in an effort to establish personal jurisdiction over Prince Sultan and many other defendants. They will claim that various charities, regardless of whether Prince Sultan actually donated to them or not, diverted money to Al Qaeda. They will claim that Prince Sultan was in a position to know about these diversions of funds. And they will argue that everyone knew that Al Qaeda was targeting the United States. Your Honor, we have serious quarrels with the plaintiffs' evidence. Mr. Jeffress noted some of those disagreements last month. Others are noted in our briefs, but even if every stitch of the plaintiffs' evidence with respect to Prince Sultan is true, that doesn't get him to personal jurisdiction because none of that evidence shows when in 1987, 14 years prior to the September 11 attacks, Prince Sultan first authorized a government grant to the IIRO that he meant to attack the United States, that he meant to cause harm to American citizens. And that is what Calder, Burger King, Magnetic Audiotape and Time, Inc. v. Simpson stand for. In SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 4acWterC fact, the record is exactly the opposite. It shows no animosity on behalf of Prince Sultan towards the United States, let alone that he meant America any harm. Prince Sultan is in his 80s. He has served as minister of defense for the Kingdom of Saudi Arabia for over 40 years. He has spent his entire career devoted to strengthening U.S.-Saudi relations and building a strategic relationship that's among America's strongest in the entire Middle East. And, your Honor, for those efforts, what did that get him? It got him named in Osama Bin Laden's 1996 fatwa, singled out as a traitor who implemented the policy of America in order to bleed financial and human resources of the nation. This is a man whose government stripped Osama Bin Laden of his citizenship in 1994, some four years before Al Qaeda was designated as a terrorist organization in the United States. They froze his assets and tried to extradite him. And, of course, the 9/11 Commission found that neither the Kingdom of Saudi Arabia nor any of its officials funded Al Qaeda. In sum, none of the plaintiffs' so-called evidence establishes that Prince Sultan, through his actions, meant to attack the United States. And when the rubber hits the road, your Honor, that's exactly what they need to allege and come forward with evidence to show under Burger King and Calder. Let me take one moment to address a line of cases that the plaintiffs rely on as somewhat of an alternative to Burger SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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12 4acWterC King and Calder to establish jurisdiction; namely, a number of cases where courts have exercised personal jurisdiction over states, designated state sponsors of terrorism, cases against Iran, against Libya, against Iraq, alleging direct sponsorship of specific terrorist activities. Those cases are inapposite here. Personal jurisdiction was conferred in those cases by operation of that specific exception, which, of course, is not at issue here because Saudi Arabia has not been designated a terrorist sponsor. Judge Robertson rejected that argument in Burnett and recently in a 2001 case from the District of Rhode Island which the plaintiffs do not cite in their papers, if I'm not mistaken, Ungar v. Palestinian Authority case. The Court specifically distinguished this line of cases that the plaintiffs are relying on here, in a case brought under the same statute that's at issue here, 18 U.S.C. Section 2333. The Court there held that minimum contacts analysis applies and dismissed complaints filed by Yasser Arafat and other senior Palestinian officials based on lack of jurisdiction. Finally, your Honor, jurisdictional discovery, the key case in the Second Circuit is the Jazini case, which stands for the simple proposition that the plaintiffs need to make out a prima facie case of personal jurisdiction in order to be entitled to discovery. What does that mean? It means specific factual allegations which, if true, are legally sufficient to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 4acWterC establish jurisdiction, not conclusions, not restatements of the law. They have not met that standard. They haven't alleged minimum contacts. They've not alleged any personal participation, primary involvement, in the 9/11 attacks or any attacks against America. And that's exactly what they have to do. They've had two years to do it, they've failed to do it, and they're not entitled to discovery. Your Honor, unless there are any questions, I will leave it at that and turn the mic over to Mr. Cohen. THE COURT: All right. MR. COHEN: Your Honor, I'm Louis Cohen for Prince Mohamad al-Faisal al-Saud. Prince Mohamad is a member of the royal family of Saudi Arabia but not a government official. In his case as well, plaintiffs have failed to assert a prima facie case of jurisdiction, either as general jurisdiction or a specific jurisdiction based on actions outside the United States expressly aimed at the United States or on the theory of conspiracy. In light of Mr. Cooper's argument, I'm going to focus on the conspiracy issue, but I want to make a couple of remarks about requirements that tortious actions outside the United States be expressly aimed at the forum. In Prince Mohamad's case, the plaintiffs do not allege SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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14 4acWterC that he transferred any money or property to any person or organization. He is not accused even of making charitable contributions. On the contrary, the Federal Insurance plaintiffs complaint originally contained allegations that he had made contributions to four charities. I think it is four, but when we pointed out to them that there was no factual basis for that assertion, they did the right thing and agreed to delete those allegations from their complaint, and your Honor has a stipulation to that effect. The only concrete allegation against Prince Mohamad is that he was chairman of Faisal Islamic Bank in Sudan at which, according to an Al Qaeda operative named Jamal Al Fadl, who testified at the trial of the 1998 East Africa embassy bombers, "We got account," end of quotation, end of relevant testimony. Plaintiffs do not allege anything further about that single three-word line of testimony. In particular, they do not allege any facts suggesting that Prince Mohamad knew of the existence of the account, let alone that he knew anything about any use to which the account was put. I'm not going to repeat Mr. Cooper's argument, but it is clear that this doesn't meet the standard for tortious conduct expressly aimed at the United States. For a Saudi to serve as chairman of a bank in Sudan is neither tortious nor expressly aimed at the United States. There is no allegation that Prince Mohamad intended or directed that the mysterious SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 4acWterC account be used against the United States. More generally, as Judge Robertson ruled, banks, and a fortiori their chairman, are not subject to jurisdiction in foreign countries based on the actions of their depositors. Indeed, if the rules were otherwise, if serving as a bank chairman were enough to subject an individual to jurisdiction in any place where a deposit might possibly later have been misused, all kinds of mischief would follow. Just as an example, the American chairman of Suntrust Bank, where the 9/11 terrorist leader Mohammad Atta was photographed withdrawing money would be personally subject to suit in Indonesia, in Spain, in Egypt, in Israel, and, indeed, in Saudi Arabia because they are all places where Al Qaeda has threatened to kill people and where it has in fact killed people. Turning to conspiracy, plaintiffs argue that Prince Mohamad and other defendants are subject to jurisdiction in New York because all defendants were members of a conspiracy with Al Qaeda, making the 9/11 terrorists their agent. But the Second Circuit has said repeatedly, I'm quoting from the Lehigh Valley case, that "the bland assertion of conspiracy is insufficient to establish personal jurisdiction over a foreign defendant; that, on the contrary, plaintiff must not only make a prima facie showing of a conspiracy, but must allege specific facts showing that the particular defendant was a member of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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16 4acWterC conspiracy." Now, one way to satisfy that requirement, of course, is to allege, if there are reasonable grounds for doing so, that the particular defendant was a party to an agreement constituting a conspiracy to injure Americans. But in the case of Prince Mohamad and of many other defendants who are here and can speak for themselves, there is no allegation that he reached an agreement with anybody about anything. The plaintiffs use the word "conspiracy" dozens of times, but they never plead any facts showing that Prince Mohamad conspired with anyone in particular about any objective or activity. Plaintiff can also show indirectly that a foreign defendant was a member of a conspiracy, but to do so, he must show three things. And here, I'm citing, among many cases, the Second Circuit's decision in Grove Press: "Plaintiff must show that the in-state actor acted, one, for the benefit of the out-of-state defendant; two, with the knowledge and consent of the foreign defendant; and, three, under some control by a foreign defendant." And again, none of those requirements is met here. There is, and this is most important, no allegation that Prince Mohamad benefitted in any way, financially or otherwise, from the terrorist activities. As a member of the Saudi Royal Family and a banker, he benefits from a stable world. He has never said or done SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 4acWterC anything that expressed hostility toward the United States or toward Americans. The plaintiffs haven't pointed to anything he has ever said that suggests that 9/11 was for him anything other than the horror that he promptly said it was shortly after 9/11 and long before any of these complaints were filed. With respect to the Second Circuit's second requirement, that the nonresident defendant have knowledge of and that he consent to the tortious acts in the forum, again, there's no such allegation in Prince Mohamad's case. There's not the slightest suggestion that he knew anything about 9/11 or any other violent activity. The only fact alleged is the account, and there is no allegation of what effects the account had in New York or anywhere else, and no allegation that Prince Mohamad had any knowledge of or consented to any such effects. Finally, there's not the slightest suggestion that the 9/11 conspirators were acting in any way at Prince Mohamad's direction or control or at his request or on his behalf. Nothing in the complaint connects him in any way with the events, the horrendous, terrible events that injured the plaintiffs. In sum, Al Qaeda was and is undoubtedly a conspiracy, but it's not enough for the plaintiffs to allege that conspiracy and then simply assert over and over that dozens of other people were members of that conspiracy. The plaintiff must allege specific facts connecting the nonresident defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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18 4acWterC to activity in New York in furtherance of the conspiracy. I'm quoting from the "Nazi-Era Cases" at 320 F.Supp.2d 222. Plaintiffs have utterly failed to allege any connection with respect to Prince Mohamad. They say over and over, a little bit in the complaint and a lot in the briefs, that he aided Al Qaeda, that he supported Al Qaeda, that he conspired with Al Qaeda, but they do not allege any instance of any such aid or support. If I can turn for a minute to discovery, plaintiffs aren't entitled to jurisdictional discovery because, as Mr. Cooper said, the Jazini case quite clearly requires that they first state a prima facie case for jurisdiction, that they first are able responsibly to allege facts that, if proved, would be sufficient to establish jurisdiction. Vague and generalized allegations are insufficient to make out a prima facie showing of jurisdiction over an out-of-state defendant. Here, discovery against Prince Mohamad would be a license to fish. Prince Mohamad's chairmanship of a bank that allegedly had an account in 1996, which is when Osama Bin Laden questionably left Sudan, that was associated with an Al Qaeda member falls miles short of suggesting that Prince Mohamad personally expressed, expressly aimed any evil at the United States. A bank chairman cannot be personally subject to discovery anywhere in the world whenever a plaintiff alleges that a bad person had a deposit in his bank. Or lots of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 4acWterC American bank chairmen would be subject to suit all over the place. The issue is no different for Prince Mohamad. Plaintiffs' repeated but wholly conclusory allegation that Prince Mohamad assisted Al Qaeda or conspired with Al Qaeda does not entitle them to disrupt his life to see whether they can find out whether or not there was any good factual basis in the first place for their deeply offensive claims. Your Honor, Judge Robertson said -- I think these were wise words. He said in the Burnett case when it was before him, "It is difficult to imagine uglier or more serious charges than those the plaintiffs have leveled at these defendants. The use of the privileged medium of a lawsuit to publicly label someone an accomplice of terrorists can cause incalculable reputational damage. Fairness requires extra careful scrutiny of plaintiffs' allegations as to any particular defendant." Prince Mohamad and each of the other defendants who are before you today ask for that careful scrutiny before they are kept in this case. Thank you, your Honor. MR. LUTZ: Good morning, your Honor. My name is Christopher Lutz. I represent the estate of Mohammad Abdulla Aljomaih. My goal is to focus on the pleadings and facts relating to Mr. Aljomaih as related to the law explained to you by Mr. Cooper and Mr. Cohen. In Calder, the U.S. Supreme Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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20 4acWterC said that in a multidefendant case, jurisdictional facts had to be examined on a defendant-by-defendant basis, that a general, overall description of facts, jurisdictional facts not keyed to particular defendants was insufficient. And so, what is the specific situation then for my client, the late Mr. Aljomaih? So far, you've heard from counsel for banks and counsel for princes. Mr. Aljomaih was simply a private citizen, a successful Saudi businessman. He first became involved in this litigation when his name appeared on a list filed in the Burnett case in May of 2003. There are no allegations in the third amended complaint in Burnett as to him, and there were no allegations as to him when he was added to Burnett. He was added in a way that was slapdash in many ways, terrible service problems. He was served by publication, though there was no authority for that. The wrong name was put on the service list. But all we had at that time was the addition of his name to the case, the bare edition of his name to the case. At the time he was added, Mr. Aljomaih was 88 years old. He was in declining health and has since died, sadly, in late April of this year. We filed a suggestion of death a month ago. We provided plaintiffs' counsel with his death certificate, but they continue to pursue him and his name and his reputation. At the time he was added, as I say, he was simply a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 4acWterC highly respected Saudi businessman. He had never ever been associated in the public press or in any reports or anything else with terrorism or Al Qaeda or any of it. He lived all his life in Saudi Arabia. The last 60 years of his life he lived in Riyadh, and that residence is an important point I want to come back with. He founded businesses in the late 1930s that became the means of marketing American goods in Saudi Arabia. His businesses became the biggest distributors of General Motors cars and Coca-Cola, and in general, if you think about it, it is an odd line for someone accused of wanting to damage the United States. He never had any personal significant connection with the United States. He never lived here. He last made a business trip to the United States 40 years ago. From 1993 to 1999, he made a few brief visits for treatment of a heart condition and cancer. But since 1999, he had never been in this country. He owned no real estate here, he owned no home. He had no bank accounts. He did no business in this country personally. In short, there was nothing connecting Mr. Aljomaih to the United States of America. Given all of that, and given the defects in service that I've mentioned, we filed our motion to dismiss in October of 2003, before Judge Robertson. We pointed out all the things that I've mentioned, and it seemed clear that there was no general jurisdiction, no specific jurisdiction, no reason at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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22 4acWterC all to hold Mr. Aljomaih in this case. With those facts before them, with that motion before them, the plaintiffs had a burden. They had thus up to that point offered no allegations at all for Mr. Aljomaih. Their burden at that point was to offer, as other counsel have told you, specific and not conclusory facts or allegations, excuse me, establishing a prima facie case of jurisdiction. Now, I want to pause for a minute on the requirement of specific allegations. In all the jurisdiction motions that have been filed, when plaintiffs are challenged on the specificity of their allegations, there is a familiar pattern. They very briefly, very briefly deal with the individual defendant making the motion, and then they launch off into what has become a set piece, a long, detailed history of Al Qaeda. Mr. Motley has given what he sometimes calls his terror factory speech two or three times in these litigations. That's all detailed, and it's all specific. But in this case, in the case of this motion, it has nothing whatever to do with Mr. Aljomaih. These long descriptions in the papers, the long descriptions in presentations to the Court are beside the point for Mr. Aljomaih unless they deal with Mr. Aljomaih specifically, and have specific allegations as to him. What did they actually do as to Mr. Aljomaih in their opposition to our motion to dismiss? One thing they did is the same thing that Mr. Cohen said happened for Prince Mohamad. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 4acWterC There were endless conclusory statements that Mr. Aljomaih supported Al Qaeda, supported terrorism, but purely conclusory. No indication of what he had done, what steps he had taken, how he had done that. All conclusory, all insufficient, and all offensive and wrong. What is there specific to Mr. Aljomaih and what the plaintiffs have filed? Do they attach papers indicating that he's been identified as a supporter of terrorism? No, they don't. They do four things. They attach pictures from Aljomaih company Web sites. They make the claim that a company, not Mr. Aljomaih, but an Aljomaih company made a charitable donation to an unspecified charity. They say he is a wealthy, successful businessman, and they refer to something that I want to come back to, that they call the Golden Chain. Now, demonstrating that Mr. Aljomaih was a successful businessman or that his companies provided good customer service, which is what the attachments to the Web pages show, doesn't get close to providing the specific allegations necessary to indicate that there's personal jurisdiction over him. None of it changes his lack of connection to the United States. None of it demonstrates that he intentionally targeted people in this country. Nothing. There's simply nothing. But they do speak of this document that they call the Golden Chain, and I suspect that Mr. Motley or other plaintiffs' counsel may describe this at some length, and so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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24 4acWterC I'd like to devote the remainder of my remarks to that, and I think counsel that follow me will do that as well. In the opposition, the plaintiffs say that Mr. Aljomaih appears, his name appears on this document that they call the Golden Chain. They say it is a list of Al Qaeda donors. At one point, they say it is an honor roll of Al Qaeda donors. Now, the question is: Is that enough to establish the specific, not really an allegation, but is it enough to show that there is personal jurisdiction over Mr. Aljomaih? A quick examination of the document shows that that can't possibly be the case. There's nothing in the document itself to indicate that it is what the plaintiffs say it is. And even if it were, there's no good reason to think that anyone listed on that document is Mohammad Aljomaih. First, let me describe to you what the Golden Chain is. You may remember in the September arguments that, I think, Ms. Bierstein held up and talked about a document that she said had come from Bosnia, that had been seized by the Bosnian police. The Golden Chain so-called is another one of these Bosnian documents, the plaintiffs claim. It is a single sheet of paper. It is handwritten in Arabic. It is unsigned, and it is undated. There's no way to tell from the document who wrote it or when it was written, and the plaintiffs haven't suggested either. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 4acWterC

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It consists and this, a translation is provided of pertinent parts of it in our reply brief. It consists of very little. There is some language that I understand to be a verse from the Koran about charity, and then there is a list of names. That's the entirety of the document. It doesn't call itself a Golden Chain. It doesn't say the people listed are donors. It doesn't mention donations. That's it. So, by itself, just by itself, given Mr. Aljomaih's complete lack of contact with the United States, the failure of the plaintiffs to say anything about what he specifically did to support this conspiracy that they attack, even on its face, the Golden Chain is not enough to hold him in this case. But there's even another reason to say that it's not enough. In fact, even if the document were what the plaintiffs claim, it points in the other direction. In other words, it points not at Mr. Aljomaih, this Mr. Aljomaih, but elsewhere. It does not contain the words Mohammad Abdullah Aljomaih. There is one word, Aljomaih. It doesn't say which Aljomaih. It doesn't have a first name or middle name, and that name Aljomaih is paired with the word Jiddah. Now, Jiddah is a city in Saudi Arabia on the Red Coast. You may remember that I said earlier, Mr. Aljomaih had lived for 60 years in Riyadh. Riyadh is hundreds of miles away from Jiddah. He never lived in Jiddah. So even if this document is what the plaintiffs say it is, and even if it has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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26 4acWterC some significance, it is identifying an Aljomaih that is not the man that I represent. That's all the plaintiffs have. No connection to the United States, a single handwritten document that seems to point to another person. There is no reason to keep Mohammad Aljomaih in this case. There is no allegation, no showing of deliberate targeting or purposeful direction of his actions towards the United States, your Honor. His motion to dismiss for lack of personal jurisdiction should be dismissed. Thank you very much. THE COURT: Thank you, sir. MS. BERNABEI: Good morning, your Honor. Lynne Bernabei, representing Mr. Al-Husaini, a defendant who has also filed a motion to dismiss on the grounds of personal jurisdiction. Like Mr. Aljomaih, his name was added to the complaint with no allegations alleged against him. The same service problems adhere in his case as in the case of Mr. Aljomaih. But what I'd like to talk about today is what is undisputed, that there is no grounds for a specific jurisdiction against Mr. Al-Husaini. It is undisputed that Mr. Al-Husaini has absolutely no contacts with this country. He's an elderly businessman in Saudi Arabia. He's never visited this country, never travelled here, owns no property here, no bank accounts, conducts no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 4acWterC business here, and his companies in Saudi Arabia conduct no business with American companies. It is also undisputed that the only basis on which plaintiffs have asserted personal jurisdiction over him is on a theory that Mr. Al-Husaini purposefully directed his activities towards the United States by providing financial support to Al Qaeda. Now, if the Court looks at the supposed evidence the plaintiffs have brought forward, there is in fact only two pieces of what they call evidence. The first is a Wall Street Journal article, in which Mr. Al-Husaini is mentioned as being a director of a foundation which sponsors seminars and schools in the Netherlands and that some of the 9/11 hijackers attended some of those seminars. Plaintiffs claim, we believe misleadingly, in a distorted fashion in their brief, that what this article says is that Mr. Al-Husaini's companies are principal supporters of the Al Waqf Foundation, a Dutch entity that played a major role in the recruitment of terrorists including six of the September 11 hijackers. As we point out in our brief and we cite to that article, it does not say that. What the article says is that Mr. Al-Husaini is on the board of a foundation which funds schools and seminars and which Dutch investigators believed that some of the 9/11 hijackers attended some of those seminars. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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28 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It also says that these seminars may create a milieu sympathetic to Islam. This is a far cry from saying Mr. Al-Husaini is recruiting terrorists, is contributing to terrorists or himself has recruited the 9/11 hijackers, which is what the plaintiffs in this case suggest. The plaintiffs also claim that this article, which is attached to their pleadings, they also claim that Spanish investigators believed that the Al-Husaini family transferred money to Mr. Zouaydi, an alleged terrorist who Spanish authorities now have in custody. In fact, the article doesn't state that either. What the article says is that Mr. Al-Husaini, Al-Husaini's companies had financial transactions with Zouaydi, but there is nothing alleged or claimed in the article that this was at a time or in any way in connection with Mr. Zouaydi's alleged terrorist actions. The second piece of supposed evidence that the plaintiffs present of Mr. Al-Husaini's connection to this vast conspiracy is that his name appears on the handwritten document recovered in 2003 by the Bosnian police in Sarajevo, with what we believe they call misleadingly the Golden Chain. Without repeating what Mr. Lutz has said, this Court should recognize that the Golden Chain document, according to the plaintiffs' counsel's chief investigator, Jean Claude Brisard, he has stated that this document was created in 1988. This date is critical because, at most, this document in 1988 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 4acWterC would indicate persons on the list are donors or potential donors to the mujaheddin in Afghanistan or Osama bin Laden in Afghanistan. In 1988, the United States Government was supporting Al Qaeda and the mujaheddin to get the Soviets out of that area. In fact, as we show in Exhibit 6 to our reply, President Reagan made five speeches between 1987 and 1988 showing U.S. open support for the mujaheddin. In fact, it was not until the mid-1990s when Bin Laden and the Al Qaeda began targeting the United States. The Wall Street Journal, upon which the plaintiffs heavily rely, itself has stated after a series of libel suits were brought against it that this list, the supposed Golden Chain, is not evidence that any of the persons on that list provided any support to Bin Laden or Al Qaeda after 1988 or at any time when Al Qaeda was targeting the United States. It is also very important for this Court to know that two British Courts and one district court in the United States have already rejected this document as evidence of participation of individual Saudis in terrorist actions and in particular in the 9/11 atrocities. These two British courts in libel actions brought against the Wall Street Journal in one case and Mr. Brisard in another case have said clearly that a handwritten document does not indicate anything about these persons being potential donors to Al Qaeda or the atrocities SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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30 4acWterC that took place in New York City. Now, plaintiffs also make much of the fact that this document was included in a government proffer to the Court in the Northern District of Illinois in the Arnaout prosecution. Mr. Arnaout was connected with the Benevolence International Foundation. What they failed to tell the Court is that Judge Conlon of the Northern District of Illinois rejected that proffer and said the document was not, could not be admitted or used in that prosecution because it constituted impermissible hearsay evidence of any terrorist conspiracy. Its author was unknown, the government did not provide its date, and therefore, the judge in that case said that it could not be used, did not fit within the coconspirator exception. Therefore, we believe that this Court, just as those two courts rejected any evidentiary value to this as showing any involvement of any, certainly of any individual Saudi citizen to any of the terrorist acts of Al Qaeda, that it should also reject this unwritten, undated, handwritten document as indicating anything of the sort. Therefore, we believe that if your Honor looks at the specific evidence the plaintiffs have brought forward to link our client, Mr. Al-Husaini, to the events of 9/11, you will find there's absolutely no fact showing that Mr. Al-Husaini had any involvement with the activities of terrorists or Al Qaeda, and that even if you credit Golden Chain with some evidentiary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 4acWterC value, it was, by the plaintiffs' own admission, it was created at a time before Al Qaeda was formed and years before Al Qaeda targeted the United States. Therefore, there's no basis for saying Mr. Al-Husaini directed any actions toward the United States as is required under the Burger King and Calder analysis. Thank you. THE COURT: Thank you, ma'am. MR. LIEBMAN: May it please the Court, Ron Liebman for National Commercial Bank. Your Honor, I'm going to limit my remarks to points that relate individually to National Commercial Bank. With the Court's permission, I'd like to adopt the arguments made by Mr. Cohen and Mr. Cooper on behalf of their clients as those points apply as well to National Commercial Bank. I'd like to address two things. First, specific jurisdiction as it relates to NCB and then, briefly, general jurisdiction. With respect to specific jurisdiction, your Honor, the plaintiffs concede that they're not trying to allege or prove that National Commercial Bank participated in planning or carrying out of the September 11 attacks or even that the assistance the plaintiffs allege NCB provided was used specifically to assist in those attacks. Instead, the plaintiffs speculate that NCB may have participated in some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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32 4acWterC unspecified way, in fund-raising activities that the Muslim World League and another defendant in this case supposedly conducted in the U.S. This speculation is based essentially upon some advertisements that were run by charities in a magazine. The advertisements seeking charitable donations appeared, according to the plaintiffs, in a magazine called the Muslim World League Journal. The charities who were seeking funds were called the Islamic Solidarity Fund, and Kahir Fund. The magazine, the plaintiffs contend, was available in the United States, and I think it was. And that the advertisements listed the numbers of bank accounts that the Muslim World League claimed to have at two Saudi banks, Al Rajhi Bank and National Commercial Bank. And that's it. There is no allegation, no facts in support of National Commercial Bank having done anything with respect to these advertisements. There's no allegation that the advertisements were placed by the bank. Indeed, they were placed by the charities. The only assertion is that the charities, in seeking funds from contributors in the advertisements, advised the funds, rather, the contributors, that they claimed to have bank accounts at two banks in Saudi Arabia, as I said, Al Rajhi Bank, and National Commercial Bank. Those facts, your Honor, don't show that NCB did anything from which a legal claim could arise. The facts don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 4acWterC show that NCB as opposed to the Muslim World League did anything in or aimed anything at the United States. Your Honor, let me next turn to general jurisdiction, as it relates to NCB. That's the concept of doing business in the United States. The Burnett plaintiffs don't argue that NCB is doing business in the U.S. In fact, neither do the Ashton plaintiffs, but the Ashton plaintiffs ask for jurisdictional discovery to explore what, in essence, are two outdated connections between National Commercial Bank or its affiliates with the U.S. Those outdated connections are not enough to show that NCB is doing business in the U.S. That test, the doing business test, requires proof that NCB had substantial continuous and systematic contacts with the U.S. And the test looks to contacts, if any, between NCB and the U.S. as of the date of the complaints in this case require The Burnett complaint was filed on August 15, 2002, and the Ashton complaint was filed on September 4, 2002. National Commercial Bank has submitted affidavits in support of its motion, which are uncontradicted, demonstrating that NCB did not have substantial continuous or systematic contact with the U.S. as of those relevant dates. Now, when parties submit affidavits addressing jurisdictional contacts, the Court is to look beyond the allegations of the complaint and assess the facts. Here are the facts about NCB as established and contained in those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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34 4acWterC affidavits: NCB is a Saudi bank. Its headquarters, branches, and principal place of business are all in Saudi Arabia. It's regulated by the Saudi Arabian Monetary Agency, which is the Central Bank of Saudi Arabia. NCB is not registered or licensed to do business in the U.S. It's not regulated by any agency of the U.S. Government. NCB does not have a branch in the United States and has not had one since its New York City branch was closed in 1992. Now, with those basic facts, and there are other facts in these affidavits, your Honor, that negate jurisdiction -- I won't go through them one by one; I'll simply rely on the papers. But with that basic background, here are the two outdated U.S. contacts that the Ashton plaintiffs rely on to argue for jurisdictional discovery over whether or not NCB is doing business in the U.S. First, NCB used to have second tier subsidiary that had an office in New York. It was a subsidiary of an English company whose parent was NCB. That subsidiary was dissolved in February of 2001, and the New York office space was surrendered to the landlord in January of 2001, and the surrender document is a part of this record, submitted by us. Two, NCB was a party in two U.S. lawsuits back in the 1990s. Now, those lawsuits ended by 1998. Even if those lawsuits were still pending today, and they're not, that, under the law, in and of itself is insufficient to establish either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 4acWterC personal jurisdiction or a right to discovery. But, in any event, your Honor, as I say, those lawsuits ended by 1998. In other words, both of these U.S. contacts were long gone before the relevant benchmark dates of August and September of 2002, when the Burnett and Ashton complaints were filed. And for that reason, your Honor, there is neither specific jurisdiction nor an entitlement to discovery over general jurisdiction, nor general jurisdiction over NCB. Thank you, your Honor. THE COURT: Thank you, Mr. Liebman. MR. KAHN: Peter Kahn of Williams & Connolly, on behalf of defendant Abdulrahman Bin Mahfouz. I will not repeat the arguments of my colleagues and would simply adopt them to the extent that they affect my client directly. I would like to focus solely on the issue which has not been addressed as to whether a corporate position alone is sufficient to establish personal jurisdiction over an individual. Our client, Abdulrahman Bin Mahfouz, is mentioned only three times in the entire 406-page third amended complaint. The sum and substance of the allegations against him, total sum and substance, is that he held corporate positions with three entities. One, a Channel Islands charitable organization known as Muwafaq, or Blessed Relief, and second, a Saudi petroleum corporation, Nimir, that already SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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36 4acWterC has been voluntarily dismissed from this case by the plaintiffs. And third, a Saudi commercial bank that you just heard about, National Commercial Bank, or NCB. Now, nowhere in the complaint do plaintiffs allege any specific conduct as opposed to status by Mr. Bin Mahfouz. Nowhere do they allege that he participated in, ratified, or even knew of these entities' alleged wrongful conduct. In order to establish personal jurisdiction over him, plaintiffs must allege sufficient facts in the complaint that make a prima facie case of linking him personally, not the entity, but him personally to the forum. And this, they have not done. As if to underscore the point, your Honor, the plaintiffs' opposition brief, once we raised this, contains a laundry list of more than 140 paragraphs they cite in the complaint that supposedly show that Mr. Bin Mahfouz's involvement was with a scheme to fund Al Qaeda. Yet, if you look at each one of the paragraphs that they cite in their opposition at page 6, not one mentions him by name. So, as I've said, plaintiffs rely entirely on his alleged status as an officer, director or trustee of these three entities that I mentioned. This is insufficient for two reasons, your Honor. First, these alleged positions themselves do not, as a matter of law, create jurisdiction over him personally. And, secondly, these three entities have no relevant presence in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 4acWterC United States. First, your Honor, on the first point, the case law is clear, and we cite it at page 8 of our opening brief, personal jurisdiction over the employees or officers of a corporation in their individual capacities must be based on their personal contacts with the forum and not their acts on contacts carried out solely in a corporate capacity. Plaintiffs have made no showing of any personal contacts, none, by Mr. Bin Mahfouz with the United States. Now, in an attempt to correct this deficiency, plaintiffs, for the first time, in their opposition brief, allege at page 7 that he was a stockholder in two publicly traded American companies. I would suggest that that no more established personal jurisdiction than their previous allegations that merely holding a corporate position in a foreign company that arguably does business in the United States somehow establishes personal jurisdiction. It does not. And here, the foreign entities were not even doing any business in the United States at any relevant time. Let's take each one of those three entities that I mentioned. First, Blessed Relief or Muwafaq was a charitable organization that plaintiffs allege had a post office box in the United States. But they specifically acknowledge in their complaint at paragraph 334 that Mr. Bin Mahfouz was not an incorporator of the United States branch. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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38 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, the records of the Delaware secretary of state's office which we have attached to our moving papers show that since 1992, when the charity first appeared, no fees were paid, and the Delaware secretary of state declared the entity to be void two years later in 1994. Even if it ever had come into existence, no fees were paid from day 1. The records that are before the Court show no involvement by Mr. Bin Mahfouz. And furthermore, and contrary to plaintiffs' unsubstantiated allegations, Blessed Relief, and I underscore this, your Honor, is not on any United States list of specially designated global terrorist entities. We've provided the Court with the link to the U.S. Treasury Department Web site which lays that out clearly as part of the public record. The second entity, your Honor, Nimir Petroleum, Mr. Bin Mahfouz is variously alleged to have been the chair, CEO, or shareholder and board member. Now, in a vain effort to create the appearance that the Court has jurisdiction over Nimir, plaintiffs allege that the company owns a subsidiary, Nimir Petroleum U.S.A., located in Dallas, Texas, but like the same assertion with regard to Blessed Relief that it had a branch in the U.S., this allegation is also a red herring. We have attached to our moving papers, your Honor, a certification from the Texas secretary of state that demonstrates that Nimir Petroleum's U.S. existence was forfeited and made null and void as of February 1996. It was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 4acWterC similarly declared void by the Delaware secretary of state on March 1, 2000. Most importantly, however, as I said at the outset of my argument, plaintiffs have already voluntarily dismissed this entity, their claimed allegations against it in this case. Nimir is no longer in this case. Finally, plaintiff alleges that Abdulrahman Bin Mahfouz is a shareholder and a member of the board and vice chairman of the executive management committee, or was, I should say, of National Commercial Bank, which you just heard about from Mr. Liebman. As with all entities here, plaintiffs allege the bank operated as financial conduit or funnel for Al Qaeda. But here again, nowhere is it alleged that Mr. Bin Mahfouz played any part in, ratified, or even knew of the bank's alleged role as a conduit. In an attempt to tie NCB to the United States, plaintiffs allege that the bank was implicated in the allegedly fraudulent schemes and practices of BCCI, between 1986 and 1990. Well, your Honor, our client was a teenager at that time. In sum, personal jurisdiction depends on the defendant's personal contacts with the forum state at the time the lawsuit was filed, not sometime in the remote past. Bare allegations of nebulous involvement in intentional torts within this jurisdiction such as those made against Mr. Bin Mahfouz SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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40 4acWterC are simply not enough. Plaintiffs make no claim that Mr. Bin Mahfouz personally has ever had any relevant contact with the United States. He is not alleged to have participated in, ratified, or even known of the alleged wrongful conduct. Merely holding a corporate position in a foreign company does not create personal jurisdiction even if the company does business in the United States, according to what we believe is the plaintiffs' wrongful allegations. There is simply no personal jurisdiction over Mr. Bin Mahfouz. Whether the Court has jurisdiction over the corporate entities is not the issue. Thank you, your Honor. THE COURT: Thank you. MR. GAUCH: May it please the Court, James Gauch on behalf of the Saudi Bin Laden group and Bakr, Omar and Tariq Bin Laden. I'm mindful that we're into the second hour of argument, and, under the Court's ground rules, I will not address the two primary arguments, whether the SBG defendants purposefully directed their conduct into the United States under Calder and Burger King -- you heard from Mr. Cooper on that -- and whether there is conspiracy jurisdiction, which Mr. Cohen addressed. I would like to address simply the point of general jurisdiction and, specifically, plaintiffs' claim that they're entitled to jurisdictional discovery in an effort to establish SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 4acWterC general jurisdiction over SBG or the individual Bin Laden SBG defendants. Plaintiffs state this argument as a fall-back but stop well short in their briefs of actually arguing that they have identified sufficient contacts to make a case that general jurisdiction exists. Both in Ashton and Burnett, they express a subjective belief that the jurisdictional discovery would reveal substantial contacts, and their jumping-off point for that argument is an article that appeared in the New Yorker two months after the 9/11 attacks. As we've explained in the briefs, the particular contacts they point to are plainly inadequate to establish a prima facie case of jurisdiction, which, as you've heard earlier this morning, under the Jazini case, the Second Circuit clearly requires in order to obtain jurisdictional discovery. And there's no dispute in this case as to what a prima facie case of personal jurisdiction would constitute, which plaintiffs themselves quote language out of Bellepointe v. Freeport-McMoran that a prima facie case consists of facts, which, if true, are sufficient in themselves to establish jurisdiction. We've gone through in our briefs the particular contacts that the plaintiffs have pointed to in their briefs, as well as the one contact that they actually allege in their complaint. I won't belabor the point by going through those individually, but I will make several broader points. One is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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42 4acWterC that there is absolutely no assertion anywhere in the complaint or in any of the briefs that the individuals that I represent, Bakr, Omar and Tariq Bin Laden, had any relevant contacts with the United States. As to SBG, we've explained that the numerous contacts that they cite are either remote in time -- they cite donations to Harvard University more than ten years ago. Many of the contacts that they cite have nothing to do with SBG but in fact concern personal holdings of other Bin Laden family members that are not in the case. They also raise the issue of passive investments which are clearly irrelevant as a matter of law, and they point to an address that SBG used to have in Rockville, Maryland, has asserted to have had. They tried to create a factual dispute as to the status of that office, whether it was a subsidiary of SBG or in fact an office of SBG itself, but they acknowledge that the office was closed. But as Mr. Liebman said, the relevant time period is when the complaint was filed, and that contact is irrelevant. In conclusion, I would like to make the point, respond to plaintiffs' likely argument that, without discovery, they cannot establish a prima facie case of jurisdiction, it would be unfair to put them to that burden. That argument has already been clearly rejected in the Jazini case. The Second Circuit acknowledged that it is difficult and may be extremely SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 4acWterC difficult to establish jurisdiction over foreign corporations, but that is simply the nature of the process. They explained that the rules governing the establishment of jurisdiction over foreign corporations is clear and settled, and it is just as clear that the plaintiffs are not entitled to jurisdictional discovery. Thank you. THE COURT: Thank you, sir. MR. COOPER: Your Honor, Mr. Cooper, on behalf of Prince Sultan. I believe that that concludes the defendants' presentations this morning. THE COURT: All righty. We'll take a five-minute recess. (Recess) THE COURT: Please be seated. All right. Mr. Motley, will you be leading off? MR. MOTLEY: May it please the Court. Ron Motley from Charleston, South Carolina. Your Honor, in this MDL consolidated proceeding, we believe it's appropriate in this jurisdictional motion that your Honor resort to pleadings and all of them, the 12(e)s that have been filed, the affidavits we filed, the letters rogatory that were issued by Judge Robertson in the Burnett case, which yielded documents which are placed in the record by that vehicle, and also, I believe the RICO statements should bear on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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44 4acWterC these matters. Now, your Honor, with the Court's permission, I will be addressing the factual basis for two issues before your Honor, and that is the targeting of the United States by these defendants as it bears on the issue of jurisdiction, and the conspiracy and conspiratorial conduct of these defendants and their coconspirators, as it bears upon jurisdiction. Mr. John Carter will be addressing your Honor on the Supreme Court and Second Circuit and other decisions which bear on directed at the United States, targeting the United States and conspiracy jurisdiction. We will not be addressing general doing business jurisdiction, as we thought that we had agreed that the primary focus would be on the other two, the direction at the United States. I would like to start, your Honor, that the burden here is not that of summary judgment, it's a prima facie showing. I've heard these defendants, and according to them, nobody in this courtroom has done anything, nobody ought to be here, not even people whose names are Bin Laden. That then takes me, your Honor, to September 11. On the morning of September 11, your Honor, New Yorkers going to business were interrupted by the sound of jets roaring overhead at very high rates of speed and the horrific sounds of these jets ramming into the World Trade Center, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 4acWterC very far from here. Your Honor, everything I'm about to say is in the record before your Honor, and if the defendants think it is not, and if they bring it to my attention, I would like to have the opportunity, your Honor, to respond in writing as to where it could be found. Initially, your Honor, Al Qaeda was not formed when Ms. Bernabei claims it was formed. It was formed and publicized in April of 1988, in a magazine, an Arabic magazine called Jihad. It was a proclamation by Dr. Azzam. He was a mentor to Osama Bin Laden. Your Honor, the defendants in their papers speak at length regarding due process. As I hope we will demonstrate to you, the jurisprudence in the Second Circuit that has arisen out of the activities of Al Qaeda is informative in regard to how much process is due defendants who target the United States or participate in the targeting of the United States or participate as coconspirators. Your Honor, it goes without saying that September 11 was not planned in August of 2001. The first hijacking of a jetliner with the intended consequence of crashing it in a suicide fashion into a public landmark occurred in December 1994 by affiliates of Al Qaeda when Air France was hijacked, refuelled in Marseilles with the intention being stated that they intended to crash it into the Eiffel Tower. The demands of the hijackers were that a man be released from prison in New York City. This man is known as Sheik Rahman. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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46 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sheik Rahman, your Honor, if you might recall, was tried and convicted in this very courthouse or in a Southern District courthouse, I'm not sure how old this courthouse is, in the mid-1990s. There were a string of Al Qaeda operatives who were tried and convicted in this courthouse in the 1990s, including a man who participated in the destruction or attempted destruction of the World Trade Center in 1993, and who actually participated in the planning of what later became the September 11 hijackings. This was in 1995, it was called Plan Bojinka. Your Honor, this man, Ramzi Yousef, was convicted in this courthouse in the 1990s of not hijacking a United States aircraft, of not murdering a United States citizen, but of plotting to hijack a Philippines airlines, placing a bomb on that plane, which exploded, killing a Japanese citizen. Because of the nature of terrorism and the laws that had been enacted by our country to prosecute and bring to civil justice perpetrators of terrorism, the court held that the United States District Court had extraterritorial right to try Mr. Yousef in a criminal court of law for this conduct which occurred in the Philippines and did not involve United States aircraft or United States citizens. Your Honor, President Bush memorably told the nation in his first address to us after September 11, he said, among other things, "If you fund a terrorist, you are a terrorist." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Why did Al Qaeda target the United States? And when did they target the United States, and how was this known? It's very important to the inquiry here today, your Honor, Sheik Rahman, whose name I just mentioned, while sitting in a jail in New York, issued a fatwa, or religious edict, from his jail cell, in the United States, in 1998. How do we know this? In this very courthouse, in June of 2001, an Al Qaeda operative named Ahmed Ressam, under oath, in this courthouse, in June of 2001, told the jury that he, as an Al Qaeda operative trained in Afghanistan, at a Bin Laden run camp, saw and received copies of Sheik Rahman's edict, fatwa, issued from his jail in New York. And here's what Sheik Rahman said about targeting the United States: "All Muslims everywhere" -- this is in the record, your Honor, of the trial to which I referred in June 2001 -"cut the transportation of their countries, tear it down, destroy their economy, burn their companies, eliminate their interests, sink their ships, shoot down their planes, kill them on the sea, in the air, on the land, kill them when you find them. Take them and encircle them." Now, your Honor, pretty much everything he just said happened on September 11, right here in New York City and at the Pentagon and in an open field in Shanksville, Pennsylvania. Your Honor, in May of 2001, a defendant in this case whose motion is not ripe for today, who we claim is a coconspirator, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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48 4acWterC a person named Sami Al-Hussein, placed on his Web site in May 2001 the following edict or fatwa from yet another Saudi cleric, to this effect, these words: "The holy warrior must kill himself if he knows that this will lead to killing a great number of the enemies. This can be accomplished with the modern means of bringing down an airplane on an important location that will cause the enemy great losses." That is four months before 9/11. Is that targeting the United States? Is that direct? Is that specific? I say it is, your Honor. Your Honor, in October of 2001, the Congress convened an inquiry of how September 11 occurred, and among the witnesses, and this is in the record, your Honor, is the testimony of the former head of FBI counterterrorism task force, Mr. Buck Revell, and he traced, your Honor, he traced, your Honor, the history of Al Qaeda's targeting of the United States. He listed, under oath in that testimony, 13 pre-9/11 attacks or attempted attacks on United States interests. He testified that the United States was a principal target of the terrorist campaign of Al Qaeda. He referred to a speech he made in 1999 that was published to the same effect. Mr. Revell said, If 13 attacks on the United States interests is not a campaign against the United States, then he said I've never seen one. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 4acWterC

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Your Honor, in this case, as the D.C. Circuit Court held in July of this year, it is not the specific bad act that we're looking at; it's the funding of the bad actor. In this case, Al Qaeda. Al Qaeda targeted the United States. It was well known to these defendants. It's well pled in our allegations, and it implicates the direct targeting of the United States jurisdiction over these defendants. How else do we know that Al Qaeda targeted the United States, your Honor? Well, he gave an interview on CNN which was telecast worldwide in 1997. He says, I declared Jihad or war against the United States because I, this government, is unjust, criminal and tyrannical. The American people are not exonerated from responsibility because they voted for their corrupt government. In other words, we're targeting U.S. voters. In 1996, Mr. Bin laden issued his first fatwa, calling upon Muslims to attack and kill Americans wherever they found them. In 1998, he declared war, his words, on the United States and its citizens, the taxpayers of the United States. Both of these fatwas, your Honor, were translated. They were made in Arabic. They appeared in Arabic publications, the largest publication in the Muslim world. In 1998, your Honor, Mr. Bin laden was indicted by the Southern District of New York U.S. Attorney. He held a press conference, your Honor, outside of his office, in 1998 when he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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50 4acWterC announced the indictment of Mr. Bin laden. In the indictment on Mr. Bin laden, the grand jury, in the indictment, traces the history of the creation of Al Qaeda. Traces why Al Qaeda targeted the United States. Describes their loyalty and the inspiration given to them by Sheik Rahman. Paired together Al Qaeda with Egyptian terrorist groups refers specifically to the fatwas that I mentioned. The indictment, your Honor, concludes that Al Qaeda targeted the United States national defense efforts in 1991. And paragraph F, your Honor, of that indictment of Mr. Bin Laden refers specifically to Bin Laden's practice of using religious, Islamic religious charities to raise and distribute money for his terror campaign. Your Honor, there's one thing that's not in the record, and the reason it's not in the record is because it didn't occur until September the 29th of, less than a month ago. And I would respectfully, it's testimony of the undersecretary of the United States Treasury to a congressional committee, and I would ask for leave of Court for your Honor to take judicial notice of this. I have copies for the defendants, but I think it's highly relevant to the issues before your Honor today. Because it's not a contemporaneous statement alone, it's a review of things that occurred historically, because the Department of the Treasury, as your Honor knows, was empowered with the designation of terrorist SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 4acWterC organizations and foreign terrorist organizations. And with your Honor's permission, I would ask for permission to be allowed to refer to this and to place it in the record, since it just occurred three weeks ago. THE COURT: Who wants to take the lead for the defendants on this? It's highly unusual, but if it happened three weeks ago, why didn't you send it to your counsel on the other side and either get their consent or their opposition? It is highly unusual, Mr. Motley. MR. MOTLEY: Then I'll move on, your Honor. THE COURT: I wouldn't do it, if I were you. But I anticipate if you did, there's going to be some opposition. Am I correct? Mr. Cohen? MR. COHEN: Yes. THE COURT: You led off for the defendants today. I take it there would be some opposition, is that correct? MR. COHEN: Yes, I think so, your Honor. We'd certainly like a chance to consider it. THE COURT: Mr. Motley, I think if you wish to add it subsequently, at least, you know, show it to your opponents and then we'll consider it. MR. MOTLEY: I'll move on, your Honor. Thank you. THE COURT: I think that's wise of you. MR. MOTLEY: Yes, sir. Your Honor, I would now like to turn to the 9/11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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52 4acWterC Commission report which was cited by the defendants. As I argued to your Honor the last time, the 9/11 Commission report is not binding on your Honor, but I think it can inform your Honor with respect to its investigative findings. And in this regard, I think it's important to understand, your Honor, that the 9/11 Commission has pointed out that while the specific acts in question, the atrocities of September 11, were relatively inexpensive, costing somewhere between four and $500,000, the infrastructure of Al Qaeda, which existed from 1988 until and after September 11, cost upwards of $30 million per year. And, your Honor, it's the infrastructure of Al Qaeda today, their cost of doing business, which is relevant to our inquiry here, not just the cost of the specific attack on 9/11. As I stated, it came into existence in '88. They attacked the United States 13 times prior to 9/11, or attempted to attack the United States, and so this 9/11 plot did not occur overnight. Judge, as you may have noticed, I usually defer to my more learned colleagues on matters of law, but, with your Honor's permission, I'm going to cite to your Honor a case from 1807 of the United States Supreme Court involving the treason of Aaron Burr and certain of his accomplices. Mr. Chief Justice John Marshall wrote, "If war be actually levied, all those who perform any part, however minute, or however remote SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 4acWterC from the incident and who are actually engaged in the general conspiracy, are traitors." In this courthouse, your Honor, a jury convicted members of Al Qaeda of acts of sedition, a conspiracy, a seditious conspiracy against the United States, a conspiracy to attack the infrastructure of the New York area in the mid-1990s. This is the case of the United States v. Rahman, the Sheik Rahman, your Honor, which was decided by the Second Circuit in August of 1999. I will not bore your Honor with citations from the Second Circuit's unanimous opinion, except that I would point out specific to the issue of targeting the United States, that in 1993, in Brooklyn, New York, Sheik Rahman conducted a seminar on jihad against the United States, within shouting distance of this courthouse, in Brooklyn, in 1993. And he called upon the attendees at this meeting to target the United States and its allies. The Second Circuit did find, your Honor, that Al Qaeda, in 1999, in its published opinion, was guilty of a conspiracy to levy war upon the United States. The government introduced evidence of notebooks, terror cookbooks, if you will, that were found in possession of the defendants in the New York City area when searches were conducted in 1993. Your Honor, in April of last year, another Al Qaeda operative, Ramzi Yousef, was convicted and his conviction was upheld by the Second Circuit unanimously. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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54 4acWterC Yousef was convicted, as I said earlier, of acts he committed in the Philippines but he was also convicted, your Honor, of planning Plan Bojinka, which was a plan to hijack 12 jetliners, simultaneously crash them filled with people into the Pacific ocean, U.S. jetliners. His coconspirator, who confessed, his name was Murad, your Honor, also confessed that one of the plans being considered was to hijack a United States jetliner and crash it, Mr. Murad was a trained pilot, into the CIA in Langley. These defendants were convicted in 1996, and judgment was entered in 1998. Your Honor, your predecessor in this case, before his unfortunate early demise, Judge Schwartz, handled the terrorist case and issued an order the week of his untimely death. It's the case called Talisman Energy. In Talisman Energy, Judge Schwartz discussed acts of terrorism and barbarity and torture. He called these acts the depths of depravity and spoke eloquently of the toll on human life taken by terrorism acts. In the case, your Honor, of Kilburn v. Libya, decided three months ago by the D.C. Circuit, unanimously, the Court held that simple proximate cause is the operative standard under the FSIA. We discussed this last month before your Honor. The court held unanimously, your Honor, that you cannot impose a requirement that financial assistance to a terror organization be directly traceable to a particular terror act; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 4acWterC that that would render the statute under which we're operating, the Antiterrorism Act, a similar provision, that would render ineffectual the material support provisions under which we are bringing our case. The court held, your Honor, "money, after all, is fungible, and terror organizations can hardly be counted on to keep careful bookkeeping records." Your Honor, there's a case in D.C. that Mr. Carter's going to talk about named Pugh. It's highly important because it held, among other things, that it had been common knowledge amongst foreign nationals, amongst foreigners, these defendants, they didn't say these defendants, I mean foreigners, who are not residents of the United States, that the United States Government was serious about preventing and punishing terrorism worldwide, and it was common knowledge, since 1984, that the United States was targeting the funding and conduct of terrorism. Your Honor, the Seventh Circuit and the Ninth Circuit, in cases dealing with terrorism of a different sort, found that there's no constitutional right to provide weapons and explosives and money to terrorists. Your Honor, I would like to focus very briefly, if I might, on the statute that provides the basis, majority basis for our claims. It's called the Antiterrorism Act. It was enacted in 1992. And as the Boim Seventh Circuit case found, the legislation provides the imposition of liability at any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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56 4acWterC point, at any point, on the causal chain to terrorism. To interrupt or at least imperil the flow of money. Aiding and abetting liability reaches persons who did not engage in the proscribed activities at all but who give a degree of aid to those who do. Your Honor, in October of 2002, the prestigious Council on Foreign Relations made this finding about the funding of Al Qaeda. It was report-specific to that, and this is in the record: For years, individuals and charities based in Saudi Arabia have been the most important source of funds for Al Qaeda. For years, Saudi officials have turned a blind eye to this problem. The general counsel, your Honor, of the treasury department, different testimony from what I withdraw, Mr. David Aufhauser, called Saudi Arabia the epicenter of terrorism financing. Now, if I might, your Honor, I'd like to spend a minute on what counsel has called the Golden Chain document. That's a misnomer. There is a cachet of documents, your Honor, of which they've only fastened upon one, which is a list of donors. The Soviet Union announced its intention to withdraw from Afghanistan in late 1998. Dr. Azzam created Al Qaeda along with Osama Bin Laden in the summer and early spring of 1998, to continue Jihad in places other than Afghanistan. The people whose names are listed on there were donors of, to the jihad efforts in Afghanistan -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 4acWterC

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THE COURT: Is there anything in the record that identifies who the author of that document is? MR. MOTLEY: Not to my knowledge, your Honor. THE COURT: Is there anything in the record that identifies any donations from any of the names listed on that document? MR. MOTLEY: Yes, sir, your Honor. We have placed evidence, some of the people whose names are on that document are defendants whose motion is ripe before you. THE COURT: I didn't ask you that, Mr. Motley. I'd appreciate it if you'd respond to my questions. MR. MOTLEY: I'm sorry, your Honor. I thought I was doing so. THE COURT: Is there anything in that document that indicates that anybody on that document, anyone listed in the document made a specific donation? MR. MOTLEY: On that document, no. THE COURT: That document, Mr. Motley. Is your hearing impaired today? MR. MOTLEY: It's getting better, Judge. Thank you. THE COURT: Okay. I'll raise my voice if you have a problem. MR. MOTLEY: No, sir. I understand. THE COURT: Is there anything on that document? MR. MOTLEY: Not on that one document. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

58 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Thank you. Okay. Continue. MR. MOTLEY: As I was saying, your Honor, there are more than just that one document. THE COURT: Do we even know when the document was written? Is there a date on it? MR. MOTLEY: I personally do not know when it was written. THE COURT: Is there a date on it? MR. MOTLEY: No, sir. THE COURT: Okay. Go ahead. MR. MOTLEY: The documents, your Honor, were recovered by the FBI and the Bosnian police in a raid on a charity. THE COURT: That's exciting, but it doesn't prove anything, does it, Mr. Motley? MR. MOTLEY: Your Honor, we believe it does. The documents that were tendered -THE COURT: We don't know who the author is, when it was written. It's very nice that the Bosnian police and the FBI, and I have the highest respect for them, found it. What is it? What does it prove, if none of these things are known? MR. MOTLEY: Your Honor, I respectfully suggest that at this stage of the case, that we should be permitted the opportunity to bring back to your Honor the answers to those questions. THE COURT: That's another question. My question is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 4acWterC at this moment in time: What does it prove? MR. MOTLEY: Your Honor -THE COURT: It's merely a piece of paper with names on it. Isn't it? MR. MOTLEY: That one piece of paper with names on it is exactly what you say it is, but that's not the only document that was seized. It's not the only document that was submitted to Judge Robertson, pursuant to an order of the Bosnian Supreme Court. There are hundreds of documents that were seized, your Honor, and they're all set forth in the Department of Justice's proffer of evidence in the, in Chicago, in the case of Amen Arnaout. THE COURT: That's all very interesting. But I didn't see anything in your papers or any of the other plaintiffs that says that this document was written by a particular individual, that it is a list of donations to Al Qaeda and how much, and when it was written. And whether you say, well, it's not on that document, is there a document that was seized at the same time that says, answers those questions? I don't think so. MR. MOTLEY: I don't think -THE COURT: Or you would have put it in, I'm quite sure. MR. MOTLEY: I would have put it in, Judge. THE COURT: I've read your papers very carefully, Mr. Motley. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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60 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOTLEY: I think, your Honor, that those documents are not dated. The U.S. Government did the best they could to estimate when it was, and the estimate is in 1988. But it's not on the document. I confess, it's not on the document. And that's one of the reasons why we want to do discovery. These are things that we can sort out if we're allowed to do discovery, and I respectfully suggest, your Honor, as Judge Robertson pointed out in Burnett I, I think we plant enough here that we should be entitled to do discovery of these defendants and come back to your Honor in a reasonable period of time with sounder and better and clearer answers to these important questions that you raise. THE COURT: That's another matter. But I just want to be very clear on that document. You put great weight on it, and, when you come right down to it, you don't know when it is. Do we? MR. MOTLEY: I'd like to find out, Judge. THE COURT: I understand that. MR. MOTLEY: And I can't answer your questions. THE COURT: Okay. MR. MOTLEY: Because the answers don't appear to those questions -THE COURT: I just want to be sure of that. MR. MOTLEY: You're absolutely, positively correct. Your Honor, among those documents, not the list, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 4acWterC there's another document that sets forth what we call and what the government called in the Arnaout proffer the charity strategy of Al Qaeda, that they would use charities as the basis for raising money to finance Al Qaeda. That's one of the documents that we submitted to your Honor, through the Arnaout proffer. It's among the long list of documents that were seized in Bosnia. Your Honor, I'd also point out the affidavit of Charles Pasqua, which we discussed with your Honor last time, Mr. Pasqua was the foreign minister, excuse me, interior minister of France. He submitted a declaration which we filed with your Honor about his specific visit to Saudi Arabia in 1994 at which he advised, he says, among others, Prince Sultan that money was being raised in Saudi Arabia and diverted to these charities and being used to fund Al Qaeda. And he specifically listed in his affidavit one of the defendants in this case, although not a defendant whose motion is before you today. That would be the Muslim World League. Your Honor, we also submitted an affidavit in this record of Mr. William Wechsler. Mr. Wechsler was a senior official in the Clinton Administration, who was chairman of the interagency working group tasked with disrupting Al Qaeda's financial network, and he and Mr. Rick Newcombe, for the Department of Treasury, visited Saudi Arabia in 1999 and specifically sat down with senior members of the government and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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62 4acWterC their banking authorities and again told them that wealthy Saudi businessmen were financing charities which were then diverting the funds to Al Qaeda. In 1999, your Honor, Madeleine Albright, the secretary of state of the United States, announced her intentions to bring the matter up yet again with Prince Sultan when he visited the United States. In 1999, your Honor, the United Nations International Convention for the Suppression and Financing of Terrorism pointed out the important problem of the financing of terrorism and how charities were being used in such a fashion as to support, to support the efforts of Al Qaeda, Hamas, and others. Your Honor, the bottom line here is we believe we've pled and placed in this record sufficient and ample evidence in a general fashion, in a general fashion, of the targeting of the United States by Al Qaeda. We believe that we have established, your Honor, a record that it was well known in Saudi Arabia and other Arabian Peninsula countries that Al Qaeda was using charities to funnel money to their operations. We believe that through the fatwas, the convictions and other information that we placed in the record, that there was an abundance of evidence that the United States was concerned about Al Qaeda targeting the United States. This was highly publicized in the United States and in the Arab world. I'd like now, your Honor, to turn to some specific -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 4acWterC first of all, I want to point out Judge Robertson's holding in the first Burnett decision at headnote 5 says, "If a party demonstrates that it can support its jurisdictional allegations through discovery, then jurisdictional discovery is justified." Your Honor, I believe that the record here cries out for amplification and that the plaintiffs deserve an opportunity to place before your Honor additional information so that these important questions of jurisdiction and substantive liability can be addressed. Your Honor, we have placed in the record evidence before you of various of the charities who are defendants in this case, of being recognized both in Saudi Arabia and in other foreign countries as harboring and funding Al Qaeda. 1996, 1998, 1995, all of those examples we have placed before your Honor in the record. We have placed before your Honor a large number of media reports in the Arab media discussing the funding of Al Qaeda through donations to charities. There are articles that we pointed out in our submissions to your Honor of interviews that Mr. Bin Laden himself gave to television, to television reporters and to United States reporters, including The New York Times. Now, your Honor, if I -- I think the Bin Laden indictment and the fact that he was placed on the FBI's most wanted list in the late 1990s certainly gives an amplitude of notice to the world that that gentleman was targeting the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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64 4acWterC United States, that these various charities were being used in the indictment. It specifically refers -- Mr. Bin Laden's indictment here in New York specifically refers to the use of these NGOs. Now, your Honor, if you would like, I would like to spend a few minutes responding to some of the factual assertions that the defendants made not with respect to whether they're doing business, because we were under the impression that we were addressing conspiracy jurisdiction and directed activity at the United States jurisdiction, the law about which Mr. Carter will discuss with you in a moment. But if I might defend the complaint itself, and I'm going to refer here simply to Burnett's third amended complaint. Your Honor, there are 139 paragraphs within the third amended complaint that refer to how Al Qaeda purposefully availed itself of and targeted the United States. Your Honor, Mr., one of the defendants whose case is before you today is Mr. Adel Batterjee. Mr. Batterjee filed a pleading in this case, a sworn affidavit, which I think we have addressed, but it bears repeating. For example, he denied ever having participated in the writing of a book by Osama Bin Laden. We filed an affidavit of one of our investigators and the correspondent for Mr. Batterjee about his participation in that book. That book was distributed in the United States, and indeed, a copy of it was gotten by our investigator at the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 4acWterC request from Mr. Batterjee. Your Honor, with respect to Mohamad Al-Faisal, Mr. Kreindler had requested, and of course, I have to ask your Honor's permission, to address Prince Mohamad Al Faisal when I'm done, if your Honor would permit him to do that for a few minutes. THE COURT: We're going to stick to the game plan. MR. MOTLEY: I notice he's chomping at the bit, your Honor. MR. KREINDLER: Your Honor, if I could have three minutes, that's all it will take. THE COURT: There will be no stage setting. MR. KREINDLER: Not stage setting, three minutes on very specific points, your Honor. THE COURT: Fine. As it is, we're going to break for lunch at 12:30, and, at the rate we're going now, Mr. Motley is going to use that up. But I am going to hold you to a half hour. Keep going. MR. MOTLEY: Yes, sir. And I certainly am going to leave ample time for Mr. Carter to discuss the law. Your Honor, with respect to some of the matters that were suggested by counsel, counsel cited some British court decisions. Those are libel cases, your Honor, where the best I can tell, there's no defense, if you, if the person proves that something was published in the U.K., the truth is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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66 4acWterC necessarily a defense. Your Honor, with respect to the National Commercial Bank, we think that the National Commercial Bank is in the same position that Al Rajhi was in Burnett I. We were permitted limited jurisdictional discovery against Al Rajhi, and we think, with great respect, your Honor, we should be entitled to take discovery with respect to National Commercial Bank. We, I think, have addressed the other defendants in our papers, your Honor, with sufficient specificity, and I would just like to say generally, your Honor, that the defendants like to fasten on what we've only said three or four things about this particular defendant. Your Honor, this ignores the general allegations that we've made, which we pled pursuant to the procedures that were worked out by Judge Robertson when he was still officiating over the case, and these are general allegations that are applicable to all of the defendants, and they conveniently want to ignore those. With that, your Honor, I will be glad to answer any other questions and express my gratitude for your Honor's patience in allowing us to make this lengthy presentation today. And if Mr. Carter is ready, I can turn it over to him. THE COURT: Very well. Go ahead, Mr. Carter. The floor is yours. MR. CARTER: Thank you. THE COURT: For your purposes, sir, we'll break at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 4acWterC 12:30. Whatever you'd like to address between now and then. MR. CARTER: Thank you, your Honor. As Mr. Motley mentioned, I'm going to be discussing the legal standards and principles which should guide the Court's analysis of the plaintiffs' claims against these defendants for jurisdictional purposes. To begin with, your Honor, I think it's important to note that the touchstone of due process is fair warning and that no analysis of due process should lose sight of that fundamental objective. The Fifth and Fourteenth Amendments of the Constitution serve to protect an individual's liberty interest by requiring that individuals have fair warning that an activity they engage in may subject them to the jurisdiction of a foreign sovereign. And as a corollary to this fair warning principle, the Supreme Court has specifically noted that the analysis of minimum contacts should be informed by relevant policy considerations, which includes the forum's interest in adjudicating the dispute and the plaintiffs' interest in having an efficient and convenient forum for obtaining redress for their injuries. In fact, the Supreme Court has held that such policy considerations may serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than otherwise would be required. And in keeping with that principle, your Honor, the Supreme Court has explained that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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68 4acWterC there is no mechanical formula for evaluating minimum contacts or analyzing due process and has instead emphasized the need for the courts to employ a highly realistic approach. In employing that highly realistic approach, the courts have consistently held that the most important consideration is whether the defendants' conduct is such that he should reasonably anticipate being held in the court in the forum. And under these standards, your Honor, the exercise of jurisdiction over these defendants is entirely reasonable and consistent with due process considerations. First and foremost, your Honor, this is a case about the sponsorship of terrorism. It is not a case involving a commercial dispute over debts owed under a franchise agreement, as was before the Supreme Court in Burger King. And because this is a terrorism case, there are unique policy considerations implicated. And as a result, the plaintiffs would submit that the decisions which are most critical and most instructive in evaluating the minimum contacts and personal jurisdiction in this case are Pugh v. Libya, which Mr. Motley mentioned and Rein v. Libya, a decision of the Southern District of New York. Now, during his presentation, your Honor, Mr. Cooper suggested that those cases were inapposite because they dealt with claims against foreign sovereigns; therefore, it didn't speak to the issues presented to the Court today, and that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 4acWterC fundamentally inaccurate. First of all, Pugh involved, among other things, claims against individuals who were sued in their personal capacity, and the court engaged in an extensive and thorough analysis of due process question in relation to those specific claims. And likewise, although the claims in Rein were against a foreign state, that did not alleviate the need for the court to go through a thorough and complete analysis of due process considerations because, as the Court is aware, in the Second Circuit, foreign states are entitled to due process as persons within the meaning of the Constitution. So I think to begin with, Pugh and Rein do speak directly to the issues before the Court today. And in Pugh, the court began its analysis by recognizing that the United States has a compelling interest in sanctioning those who commit terrorist acts and protecting the citizens of the United States from terrorist attacks. That interest has been consistently and repeatedly announced to the world through acts of Congress, the decisions of these courts and the executive branch for nearly 20 years. The Antiterrorism Act, which, as Mr. Motley explained, forms the predicate for many of the claims in this case, is itself an expression of that paramount interest in the United States of providing redress against terrorists. And not insignificantly, your Honor, it provides a private cause of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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70 4acWterC action, a civil cause of action against individuals who provide material support and sponsorship to a terrorist organization, which is precisely the predicate for the claims against the defendants here today. In view of the United States' compelling interest in sanctioning terrorists and protecting U.S. citizens from terrorism, the court in Pugh held that individuals who sponsor terrorists should reasonably expect to be haled into court in the U.S. where it was altogether foreseeable that some Americans would be among the foreign nationals targeted by their actions and, consequently, that the exercise of jurisdiction comported with fair play and substantial justice. The Southern District of New York employed similar reasoning in Rein, holding that any foreign state would know that the United States has a substantial interest in protecting its flag carriers and nationals from terrorist activities and should reasonably expect that if those interests were harmed, they would be subject to a variety of potential responses including civil actions in U.S. courts. And in keeping with the reasoned decisions of Pugh and Rein, the defendants in this case are properly viewed to have established minimum contacts with this forum sufficient to satisfy due process, both because their conduct was directed at the United States within the meaning of Calder v. Jones, and because the actions of their coconspirators in the United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 4acWterC States are attributable to them for purposes of evaluating jurisdiction under the conspiracy theory. As Mr. Motley explained in some detail, Al Qaeda had consistently and repeatedly declared its intention to attack U.S. citizens wherever they may be found in the world. And in sponsoring a terrorist organization that was and remains so singularly devoted to attacking the innocent citizens of the United States, the defendants necessarily directed their conduct at the U.S. Now, Mr. Cooper raised some arguments based on a statement in Calder v. Jones that the defendants in that case were principal participants in the intentional wrong. And I would respectfully suggest that that statement within Calder v. Jones doesn't support the proposition for which the defendants proffer it to this Court here. It merely indicated that the defendants in that case actively participated in the intentional tort which is the subject of that claim. The defendants here would suggest to the Court that it essentially imports into the due process analysis a but for standard of causation. And that's not what it does. As Mr. Motley explained, the but for standard of causation has been explicitly rejected in terrorism cases in recognition of the fact that terrorist acts are only made possible by the contributions of many individuals to the terrorist organizations. And so I don't think that the comment SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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72 4acWterC that the defendants in Calder were principal participants supports the proposition for which it's been cited. Regardless, your Honor, these defendants are principal participants in the wrong which is the basis of plaintiffs' claims here. Individuals who provide material support and sponsorship to a terrorist organization are primary and integral participants in the conduct of terrorist attacks. Congress has recognized this fact within the Antiterrorism Act by criminalizing the act of providing material support and resources to a terrorist organization and by providing a civil cause of action against those who do so. The courts have endorsed this view as well and again, both William and Kilburn, to which Mr. Motley made reference, are instructive on this point. In both of those cases, the courts properly held that there's no reasoned basis for distinguishing between individuals who provide general support for the terrorist organization and individuals who provide specific support for an attack which causes the plaintiffs' injuries. The reality is that money donated to a terrorist organization is fungible and can be used for any purposes. Terrorism officials have similarly testified that money is the lifeblood of terrorism, and, most recently, the 9/11 Commission concluded that Al Qaeda needed $30 million on an annual basis before 9/11 to sustain its global organization and that the planning, coordination and conduct of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 4acWterC September 11 attack would not have been possible absent the infrastructure sustained by those funds. There's another important point, I think, your Honor, that defendants lose sight of. Al Qaeda is a very sophisticated organization. It recognizes that when it carries out an attack, there will be an investigation and that that investigation will invariably lead to the source of funding which was used to carry out the attack. And being a smart organization, it consequently avoids using its principal sources of funding to carry out attacks. It instead uses funds from its principal sources to sustain its organization and uses less important sources of funding to actually fund the operations. The bombing attack in Spain is an example of that where simple criminal enterprises were used to fund an attack rather than the charity system or contributions from significant donors. Another point in regards to the defendants' reliance on the primary participant comment in Calder, your Honor, which bears mention is that Calder, while involving an intentional tort, didn't involve claims based on the sponsorship of terrorism. And while defamation is a significant wrong, it's nothing close to the sponsorship of a terrorist act. And so there were fundamentally different considerations and policy considerations at issue in that case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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74 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'd like to move on briefly, your Honor, to the conspiracy theory of jurisdiction THE COURT: Is this a convenient time? How long is it going to take? MR. CARTER: I think it is a convenient time. THE COURT: Go ahead, if you have five minutes. MR. CARTER: I meant it was a convenient time for a break because it's probably not five minutes. THE COURT: All right. We'll take our luncheon recess until 2:00, and we will have, save you three minutes, Mr. Kreindler, and then we'll finish up plaintiffs' argument and 30-minute rebuttal after that. The Court will stand in recess. (Luncheon recess)

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AFTERNOON SESSION 2:00 p.m. (In open court) THE COURT: Good afternoon. Please be seated. Mr. Carter, you may continue. MR. CARTER: Thank you, your Honor. When we broke for lunch, I was about to begin speaking about the conspiracy theory of personal jurisdiction. As your Honor is aware from the briefs, the conspiracy theory of jurisdiction is based on the premise that the acts of coconspirators within the forum state are like those of an agent attributable to an out-of-state defendant for jurisdictional purposes. In this case, the defendants themselves acknowledge the existence of the conspiracy which led to the September 11 attack. However, they failed to understand and appreciate the significance of that fact in regards to the claims asserted against it. The Second Circuit has, in fact, held that where the existence of a conspiracy has been proven to exist, the quantum of evidence required to link a defendant to it need not be overwhelming and may be established purely through circumstantial evidence. And, your Honor, those are cases in which the Second Circuit was upholding criminal conspiracy convictions based purely on circumstantial evidence. In addition, the Second Circuit has expressly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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76 4acWterC recognized that conspiracies are rarely proved through direct evidence, and an individual defendant's participation is rarely proved through direct evidence. And as a result, plaintiffs may rely on circumstantial evidence based on or viewed in the totality of the circumstances. Contrary to the defendant's assertion, the various complaints do, your Honor, contain very specific allegations as to how these particular defendants directed their conduct at the United States and conspired with and aided and abetted Al Qaeda. And in this circuit, before discovery, a plaintiff may defeat a jurisdictional testing motion based purely on the allegations of the complaint, well pled allegations of the complaint. And in view of that fact, your Honor, I'd like to turn briefly to the allegations of the complaint vis-a-vis these particular defendants because they present a far different picture from that that was suggested by the defendants during their presentation. I take for an example, your Honor, Abdulrahman Bin Mahfouz. As his counsel acknowledged and as alleged in the complaints, Mr. Bin Mahfouz served as cofounder of the Muwafaq Foundation, with Yassin Al Kadi, and Mr. Bin Mahfouz's father, Kahlid Mahfouz. Now, during his presentation, counsel for Mr. Bin Mahfouz, suggested essentially that the Muwafaq was an innocent organization that had not been designated, and this was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 4acWterC fundamentally misleading statement, your Honor. Mr. Al Kadi, the founder of Muwafaq, was himself designated on October 12, 2002, and the press statement issued by the treasury department stated that Al Kadi founded Muwafaq. And then it went on to explain that Muwafaq is an Al Qaeda front that receives funding from wealthy Saudi businessmen. Saudi businessmen have been transferring millions of dollars to Bin Laden through Muwafaq. Now, there is an entire section of the Federal, Ashton, and Burnett complaints dedicated to setting forth allegations regarding the conduct of the Muwafaq Foundation, and as much as counsel for Mr. Bin Mahfouz would like to divorce those allegations from those specific allegations against his client, they can't be. All of that must be read as a whole, and that's a point that's true as to all of these defendants. One of the things that they all seek to do is to isolate from the remainder of the complaint the sections of the complaint in which they're referenced. But they have to be tied back to the other allegations of the complaint. And when read collectively as to Mr. Bin Mahfouz, these allegations clearly describe his intentional targeting of the United States and aiding and abetting and participation in Al Qaeda's conspiracy. Now I mentioned a minute ago, your Honor, that Muwafaq was cofounded by Kahlid Bin Mahfouz. Kahlid was, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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78 4acWterC coincidentally, also the president and CEO of National Commercial Bank, also a defendant challenging jurisdiction here today. I say "not coincidentally" because National Commercial Bank, channelled $3 million to Muwafaq. THE COURT: When was he chairman? MR. CARTER: He was chairman of the bank between 1996 and 1999, your Honor, and he served as an officer of the bank prior to that point, and those are facts set forth in the various complaints as well. National Commercial Bank also contributed $74 million to IIRO, a point which is also set forth in the various complaints. And a former CIA counterterrorism expert has described NCB as a channel to Bin Laden. Those are all allegations set forth in the complaint which from the basis of the plaintiffs' claims against NCB. In his presentation to the Court, Mr. Liebman avoided any reference to those allegations, instead adopting the arguments presented by other counsel, as to the purposeful direction and conspiracy aspects of plaintiffs' jurisdictional theory, but those allegations -THE COURT: Where did this CIA agent make this claim? MR. CARTER: Your Honor, I believe it was in an interview. It's not in court testimony. THE COURT: Do you have any facts to back it up? MR. CARTER: Your Honor, we do not have evidence which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 4acWterC would necessarily be admissible of record in a trial at this point. What I think, though, is that there are facts which are sufficient to sustain the allegations. There is, according to various reports, an extensive investigation that led to a disclosure that NCB was funneling money to terrorists which prompted the Saudi government to take control of the bank in 1999. And so what we would suggest is that based on the very specific allegations -THE COURT: Did the Saudi government state that's why they were doing it? MR. CARTER: No, they didn't say that's why they were doing it, your Honor. THE COURT: You're saying it. MR. CARTER: It is the allegation which is part of the basis of our complaint and relative to which we would seek an opportunity to conduct discovery, your Honor. Prince Sultan also avoids -THE COURT: Do you maintain that anybody can just make up any sort of claims and conclusions and, therefore, you're entitled to discovery? That isn't quite what the law is, is it? MR. CARTER: No, your Honor. I think what the law is is that the allegations of conspiracy have to be viewed in light of the totality of the circumstances. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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80 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I know. You're giving me all this smoke in broad strokes, in the totality and all that. Do you have any facts? MR. CARTER: We do have the fact, your Honor, that Mr. Bin Mahfouz was the founder of the Muwafaq Foundation which has been described by the treasury department -THE COURT: When? MR. CARTER: He founded the Muwafaq Foundation -- I don't know the specific year, your Honor, that it was founded. It was in existence until relatively recently. THE COURT: I didn't ask you that. When did he found it? You're saying that's the big deal. He founded it when? MR. CARTER: 1992, your Honor. THE COURT: A long time ago. MR. CARTER: Your Honor, it's a long time ago, but it's also the period during which Al Qaeda was building its financial infrastructure so that it could support its capacity to conduct global terrorism attacks. So I don't think what happened in that time frame is necessarily irrelevant here. Mr. Bin Mahfouz is then also chairman of the National Commercial Bank. There is a relationship among all of these parties which is relatively significant. He's founding Muwafaq with Yassin Abdullah Al Kadi who is an official designated by the U.S. Government as an Al Qaeda sponsor. THE COURT: When did they designate him? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARTER: They designated him in October of 2002, your Honor. Prince Sultan, during his discussion, also avoided, your Honor, any real discussion of the allegations that were made against him, but I think it's important to look at those as well. Prince Sultan, as has been described in some detail, received specific notification in 1994 from Mr. Pasqua of the French government and again in 1999 and 2000 from officials of the U.S. Government, and all of that has been substantiated through affidavits submitted by the plaintiffs. And he was notified specifically that Saudi-based charities were involved in funneling money to terrorist organizations. And Mr. Pasqua singled out the Muslim World League. At the same time, Prince Sultan was serving as the head of the Supreme Council for Islamic Affairs, an organization which had the responsibility for reviewing funding requests of the charities and making disbursements to the charities. On that same board was, since 1995, a member of the Saudi intelligence service, your Honor. Prince Turki served in that capacity until he moved away from the intelligence service. So I think that it's fair to say that Prince Sultan, in his capacity as a government official, having received notification from foreign officials and serving on a board with oversight responsibility of the charities along with Saudi intelligence officials, had fair notice of what was going on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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82 4acWterC with regard to the charities and their involvement in passing money on to terrorists. And subsequent developments have only affirmed this, your Honor, that the Saudi government itself in June of this year announced that it was shutting down many of its international charities because they were involved in sponsoring terrorism. They described it themselves as a counterterrorism measure. Now, despite all of these vehicles through which he would have received notice of the problem, Prince Sultan continued to give funding both in his official and personal capacity to the very organizations which had been identified to him as being problematic. And when viewed in the totality of the circumstances, that is, I would submit, your Honor -THE COURT: What proof do you have of his giving money? MR. CARTER: Your Honor, there were submitted in the proceedings before Judge Robertson an actual videotape from a member of the Saudi government acknowledging that Prince Sultan had made contributions in his personal capacity. There are publications to this effect on Saudi information guide, in which it describes Prince Sultan's annual contributions to, for instance, the IIRO, in the amount of 1 million Saudi rials, annually, which is approximately $300,000. So we do have specific evidence that he made these contributions. We don't have, your Honor, the plaintiffs will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 4acWterC admit, an admission from Prince Sultan that he intended those contributions to be channelled to Al Qaeda, but viewed in the totality of the circumstances, the allegations and evidence are sufficient to state a prima facie case of conspiracy at this stage of the proceeding. Another of the defendants up today is Adel Batterjee, your Honor. I would say about Mr. Batterjee that he opened offices for Benevolent International Organization, another charity, in Bosnia and Chicago. Benevolent International Organization was designated by the U.S. Government as an Al Qaeda sponsor. There are additional -THE COURT: When? MR. CARTER: Within the last two years, your Honor. 2002, I believe, would be the date. He is also alleged to have either wrote or commissioned a biography on Osama Bin Laden and the jihad struggle. So there are, your Honor, specific allegations as to all of these defendants, regarding the nature of the conduct through which they are alleged to have sponsored this terrorist organization, and those specific allegations are sufficient to sustain the jurisdiction testing motion at this stage of the proceedings. I'd like to briefly, your Honor, address a couple other points, the first of which is the argument that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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84 4acWterC defendants can't be haled into court based on the activities of the corporations of which they're officers or directors. And, your Honor, that misses the point fundamentally of the nature of the allegations made against the defendants. We're not attempting to bring them into court based on the actions of the corporations. We're seeking to assert claims against them based on their own actions, which, in some cases, were carried out through the corporation as an agent. And the Second Circuit has been clear that the so-called fiduciary shield doctrine doesn't insulate a corporate officer from liability or the jurisdiction of the courts where he exercises a degree of control and effectively uses the corporation as an agent to carry out those actions. And a fair reading of the complaints is not that these people happen to be corporate officers, but rather that they used their positions and authority within these corporations to channel funding and sponsorship to Al Qaeda. Mr. Cohen, during his presentation, also made an argument, your Honor, that the actions of the coconspirators would only be attributable to the individual defendants in the event that we could demonstrate that they acted for effectively the benefit of those defendants. And what I would say is that individuals who sponsor terrorism necessarily seek to see the terrorist organization succeed in its illicit plan to carry out terrorist attacks. So successful terrorist attacks are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 4acWterC essentially the profit that sponsors of terrorism derive from their sponsorship of the organization. So I think that that requirement is satisfied here, based on the knowing and intentional sponsorship of the organization itself. It's not a financial profit as would be typical in many cases, but it is certainly something that the defendants who sponsor a terrorist organization derive benefit and, as tragic as it is, pleasure from. I think lastly, your Honor, I would just like to speak briefly about Judge Robertson's decision in Burnett below as to the issue of personal jurisdiction because it was raised by a few of the defendants. There are several concerns and problems with the defendants' reliance on the decision here. First of all, I would submit that Judge Robertson's decision is inconsistent with Pugh and Rein and that those are the more well reasoned decisions. I would also say that Judge Robertson's decision was clearly predicated on his reading and interpretations of the allegations of the complaint and the record before him at that time. And the record -THE COURT: Doesn't every judge do that? MR. CARTER: Every judge does do that, your Honor, you're correct. THE COURT: I hope he would do those things. Without reading -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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86 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARTER: No. I would just say a lot of defendants here would like to extrapolate it to them, and it doesn't really work to extrapolate it to them since it's based on the allegations against him. And even as to Prince Sultan, the allegations before this Court and the record before this Court at this time are considerably different. So I think that all of those factors weigh against applying Judge Robertson's logic to these defendants in the present context. I'd like to cede the last few minutes, your Honor, to Mr. Kreindler so that he can speak briefly about Prince Mohamad. MR. KREINDLER: Judge, I have four things to say about Prince Mohamad, and listening to your questions to counsel this morning and this afternoon, I think it goes to your inquiry. And your inquiry is: Why did we sue these defendants among the full panoply of contenders? No. 1, your Honor, we sued Prince Mohamad because he intentionally helped Osama Bin Laden by providing banks, accounts, and financial services. When Osama Bin Laden moved his organization to the Sudan, he needed banks' financial services. Prince Mohamad owned and controlled three banks in the Sudan, Faisal Islamic Bank, Al-Shamal Bank and Tadamon Bank. One of those banks, in 1991, Osama Bin Laden deposited or invested $50 million. That's according to the 1996 State SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 4acWterC Department fact sheet. That bank was used to move money to banks all around the world, including a bank in Texas that was used for Osama Bin Laden to purchase an airplane for $250,000. Osama Bin Laden needed international banking, and Prince Mohamad provided it to him. No. 2, Mr. Cohen referred to the president, CEO of Suntrust and said, you know, by this reasoning he could be sued anywhere around the world. What makes that analogy false is the element of intent. We have alleged that Prince Mohamad provided banking services intentionally to help Osama Bin Laden, not that his bank was used willy-nilly. Point No. 3, Mr. Cohen makes the point that we never allege that Prince Mohamad made money or intended to make money by providing his banks to Osama Bin Laden for Osama Bin Laden's use, and, your Honor, that is exactly our point. He didn't do it as a banker to make money. He did it because he wanted to help Osama Bin Laden, out of sympathy with Osama Bin Laden's goals. Point 4, your Honor, Mr. -THE COURT: What do you base that on? MR. KREINDLER: What I base that on -THE COURT: It's out of whole cloth. He wanted to help him. What do you base that on? MR. KREINDLER: One of the things that's seen in Prince Mohamad's papers and other papers is a lot of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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88 4acWterC information on Islamic banking. They can't charge interest, you're a joint partner. From the information we have, we do not see a profit to Prince Mohamad. THE COURT: You're making a conclusion, he wanted to do something. You just reach out and make these claims with no basis whatsoever, as far as I can see in your papers. MR. KREINDLER: Your Honor, that is the inference we think it is proper to draw at this stage. THE COURT: You don't argue it that way, do you? MR. KREINDLER: Your Honor, I'm not arguing with you at all. We cannot -THE COURT: Go right ahead. It's okay. You're permitted, you know. MR. KREINDLER: Well, I'll try and only do it when it may do us some good. THE COURT: You get a point for candor. MR. KREINDLER: Let me make one more point. In his testimony from the embassy bombing case, I don't know I don't think Mr. Cohen's characterization is fair. Day 2 of the embassy bombing trials here, Assistant U.S. Attorney Fitzgerald asks the question to Al Qaeda's money man, whose name is Al Fadl: "Q. While you were in the Sudan, did you handle money for Osama Bin Laden? Did you work on the finances for Al Qaeda while you were in the Sudan? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 4acWterC "A. Through the interpreter, "Yes. "Q. Did you know where the bank accounts," that's accounts plural, not singular, "of Osama Bin Laden and Al Qaeda were? "A. Yes. "Q. Do you know whose name they," not it, were in? "A. Through the interpreter, "The bank account under Osama Bin Laden in Bank Shamal Khartoum," the capital of the Sudan." And then a page later: "Q. Where were accounts held? "A. In Sudan and is in Bank Tadamon Islami. "Q. Where else? "A. Also we got account in Bank Faisal Islami." Your Honor, what we know at this point is by owning and controlling these banks in the Sudan, at the time that Osama Bin Laden moved there and needed banking services, Prince Mohamad -THE COURT: Are you suggesting having a bank account with your bank makes you responsible? MR. KREINDLER: No. No, your Honor. I am suggesting that in a banking world and a world very different than ours with an obligation to know your customers well, as existed there, that we believe, based upon using his company to -THE COURT: Is there a Saudi Arabian regulation that creates a cause of action to the banker to know your customer? Reading the regulations, it doesn't seem to say that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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90 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KREINDLER: I'm going back to something that I don't think is in dispute, your Honor, and if it is in dispute, I'm sure one of the many defense lawyers here will correct me, or try to correct me. But it is my understanding, and again, I do not think it's in dispute, that one of the tenets of Islamic banking, since the banks are not permitted to charge interest, is to form a working relationship with its big customers. And $50 million in the Sudan in 1991, I mean, we're looking at the context, $50 million in the Sudan in 1991 is probably about half the money that's in the whole country. It's a terribly significant event in a small world where a relatively few number of people wield enormous political and economical control. And what we're saying, your Honor, here in this context and in others is doing the best job we could, before any discovery, before any of the criminal trials arising from 9/11, we've uncovered information that we believe is significant. And when this information is considered, particularly when you start connecting the dots, we think that given the chance to prove to your Honor's satisfaction, we will prove to your Honor a clear picture of complicity and culpability on the part of the defendants we've sued. At this point, your Honor is right. We have just begun. We have done the best we could to uncover information -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Don't say I'm right. I didn't say any of the things you're now saying. MR. KREINDLER: No. I'm saying you're right, we're at the early stage. We have not proven our case. We all agree that we -- this case is not ready for a jury yet. But we have what we think is significant information, and we're entitled on a motion to dismiss on the pleadings to have the facts accepted as true and inferences drawn in our favor. That's what we're saying, your Honor. Was that three minutes? THE COURT: A lot more than I gave you for the questions. You're lucky you have a blind man watching the clock. All right. Who is going to do rebuttal? MR. COHEN: Your Honor, this is Louis Cohen for Prince Mohamad. Let me begin by saying about him -THE COURT: Are you going to do the entire rebuttal? MR. COHEN: No, I'm not. I think others will have things to say about -THE COURT: All right. Do it within your time structure. MR. COHEN: By my count, we have about 25 minutes left from our original hour and a half. THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

92 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COHEN: Let me start by saying that Prince Mohamad said, in February of 2002, long before this litigation began, that, in a public statement, in both English and Arabic, that he expressed his personal condolences to the victims of 9/11 and joined with the rest of the world in utterly condemning such acts unreservedly. I know that is not evidence of anything, but I want on the record the position that Prince Mohamad took before this litigation even began. Mr. Kreindler has now done something that he also did in his brief, and we called him on it; namely, to misstate very substantially the allegations that he has made in his complaint. And I would ask that the Court carefully read our short reply brief in the Ashton case, particularly the first three pages, in which we respond to Mr. Kreindler's assertions in his brief as to what it is that he has said. We make a couple of points in particular. His brief asserts, as he just did, and I'm quoting from page 1 of his brief, that Prince Mohamad knowingly and intentionally provided currency and financial services needed by Al Qaeda. He cites, looks to me like about 22 paragraphs of the complaint. If the Court will review those paragraphs, you will see that not one of them supports that allegation at all and that nothing else helps. For example, a couple of the paragraphs are paragraphs where it just says all the defendants conspired with Al Qaeda. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 4acWterC A couple of the paragraphs deal with Kahlid Sheik Mohammed, the deputy to Osama Bin Laden, the planner of the 9/11 attacks, who, needless to say, has no relation to Prince Mohamad Al Faisal. A couple of the paragraphs deal with a general history that Mr. Motley gave us this morning, the attack on the COLE, the attack on the World Trade Center. None of those paragraphs asserts that Prince Mohamad transferred any money or anything of value to Al Qaeda. Now, with respect to banks, first of all, Mr. Kreindler talks about three banks, Faisal Islamic Bank that I mentioned this morning, Al Shamal, and Tadamon Bank. The facts with respect to their own complaint are that there is nothing in their complaint that alleges that Prince Mohamad was ever a director, an officer, an employee, or a stockholder of Al-Shamal Bank, and he wasn't. There is nothing in their complaint that says he ever engaged in any transaction of any kind with that bank, and he didn't. And there is nothing in the complaint that says he ever approved anything that that bank, and that's the bank in which they've alleged that Osama Bin Laden invested $50 million, there is nothing in the complaint that says that he ever approved any transaction involving that bank. And I recall Mr. Carter's assertion that we're looking to what the individual defendants here did, not to what their corporations did. There's nothing that ties Prince Mohamad to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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94 4acWterC the banking activities of that bank. The only connection is that there is an allegation that in 1984, 17 years before the events at issue, Faisal Islamic Bank in Sudan acquired, along with several other organizations, unrelated organizations, the list is at least five, some shares in Shamal Bank, but no allegation that it ever controlled Shamal Bank, and as I say, no allegation that Prince Mohamad personally ever had anything to do with that bank. I won't repeat the whole speech, but the same thing is true with respect to Tadamon Bank. There is no relationship there. Coming back to Faisal Islamic Bank and the testimony of this man Al Fadl, if the Court will read the pages leading up to and including this testimony, it is true that Mr. Al Fadl, who, by the way, himself left Sudan and turned himself in to the United States in 1996, so everything we're talking -this is according to the 9/11 Commission report, so everything we're talking about is before 1996, which is also when Osama Bin Laden left Sudan without any money, that testimony does describe bank accounts that the, that Mr. Al Fadl said Al Qaeda had had in Sudanese banks. And the examiner leads himself through testimony about several banks that have nothing to do with Prince Mohamad at all, and then ultimately asks a question, "Anywhere else?" and it is that that produces the one line on which, that they have quoted, saying we got account in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 4acWterC Faisal bank Islamic, account singular, as the transcriber, as the transcriber had it. What I said this morning is right. The only thing that they allege in their complaint or have with respect to Prince Mohamad is that he is the chairman, the foreign-based chairman, in the sense that he's Saudi and it's in Sudan, of the board of directors of a bank that has this one line of testimony saying, mysteriously, "We got account." We don't know anything else about that account except the inference that it was an account before 1996. Let me say just, finally, one more word about conspiracy as a basis for jurisdiction. Conspiracy can be a basis for jurisdiction over a foreign defendant where the conspiracy carried out evil actions, terribly evil actions in this case, in the United States, if the plaintiff can establish that the defendant was a member of the conspiracy. It isn't enough to allege that there was a conspiracy. The defendant has to be tied to it. And the argument is that the allegations against Prince Mohamad and various other defendants don't make out a case, wouldn't make out a case, even if all the alleged facts were true, that they were members of a conspiracy. And without that, they are not entitled to discovery because, as the Second Circuit said in the Jazini case, you have to have a prima facie case first. The Second Circuit was considering the question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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96 4acWterC whether the Jazinis had asserted a basis for jurisdiction over a Japanese corporation, Nissan Japan, the maker of Nissan automobiles, and said, no, and said no, the plaintiffs aren't entitled to any further discovery because they're, and I'm now quoting from page 185 of the opinion in 148 F.3d, because the allegations lack the factual specificity necessary to confer jurisdiction, the conclusory statements without any supporting facts that Nissan USA is wholly controlled by Nissan Japan, and dependent on Nissan Japan for its business plan and financing are but a restatement of factors to be considered under the standards set forth in other cases for showing that a U.S. corporation is an agent of a foreign corporation. Those statements of legal conclusions are not enough even to entitle the plaintiffs to discovery. The allegations that have been made against Prince Mohamad and other defendants in this case, I carefully reviewed the complaint and I agree that you should view the complaint as a whole, do not have the specificity necessary to confer jurisdiction or entitle the plaintiffs to discovery. Thank you, your Honor. THE COURT: Okay, Mr. Cohen. I think you reached into your teammates' time. I got your point. MR. COHEN: Thank you. THE COURT: Thank you. MR. COOPER: Casey Cooper, your Honor, on behalf of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 4acWterC Prince Sultan. Mr. Motley did a masterful job this morning of establishing a prima facie case of jurisdiction against Al Qaeda. He's absolutely right, Al Qaeda did target the United States. The fact of the matter is that Al Qaeda targeted and continues to target to this day the Kingdom of Saudi Arabia and specifically my client. Osama Bin Laden named him in his 1996 fatwa that Mr. Motley mentioned calling him a traitor to the nation. In contrast, I heard nothing new today to establish personal jurisdiction over Prince Sultan. Two pieces of evidence were specifically mentioned. Mr. Motley claims that an affidavit by the former French minister of interior, Mr. Pasqua, describing a 1994 meeting with Prince Sultan, shows that Prince Sultan was on notice that certain charities were supporting Al Qaeda. Your Honor, I have read that affidavit now six or seven times. Nowhere does it mention Al Qaeda, and in fact the only charity that it mentions is the Muslim World League. The problem is the only charities that Prince Sultan is on the record as supporting or as authorizing government grants to on this record are the IIRO and the World Assembly of Muslim Youth, not the Muslim World League. Second, Mr. Motley mentioned an affidavit by William Wechsler, regarding a 1999 meeting between U.S. officials and unnamed Saudi officials. Importantly, the affidavit never once SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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98 4acWterC mentions Prince Sultan. I would echo what Mr. Cohen said about really carefully parsing this evidence that the plaintiffs have put forth. It's been mischaracterized repeatedly, and it's really a trap. Another allegation mentioned by Mr. Carter, he said that Prince Sultan heads an organization called Supreme Council of Islamic Affairs. That is correct. Mr. Carter says that that organization makes funding disbursements. That is simply not true. There's nothing in the record to support it. As a matter of fact, the only donations in the record having any connection with the Supreme Council of Islamic Affairs are to the World Muslim Youth. It's clear on the face of those, the checks that we submitted, they're government checks. It's official conduct. But more fundamentally, your Honor, even if all of the plaintiffs' evidence says what Mr. Motley and Mr. Carter says that it says, it's not enough under Burger King and Calder to establish a prima facie case on jurisdiction. No primary participation. No personal involvement in the wrongdoing that gave rise to the plaintiffs' injuries. As a result, under Jazini, which the plaintiffs agree it appears applies because they've not made out a prima facie case, there is no entitlement to jurisdiction. Mr. Carter seemed to assert that primary participation as used by the Supreme Court in Calder doesn't really mean what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 4acWterC it says or applies only to certain classes of intentional torts like libel but not others like, you know, terrorism. The fact of the matter is there's no support for that position of the case law, and it's based fundamentally on this notion that policy considerations can be the basis for an assertion of personal jurisdiction on some lesser showing of minimum contacts in certain cases. The Supreme Court in Burger King addressed that exact issue, quoting that while the courts properly may take into account policy considerations, it is no substitute for constitutionally required minimum contacts analysis. I quote 471 U.S. 462 at 476. Once it has been decided that a defendant purposefully established minimum contacts within the forum, these contacts may then be considered in light of other factors to determine whether an assertion of personal jurisdiction would comport with fair play and substantial justice. Minimum contacts is the threshold analysis. It must come first. Mr. Carter mentioned the Pugh case. I stand corrected, your Honor, it did involve certain individual defendants over whom the court asserted personal jurisdiction. It doesn't say so in the opinion, but I assume that these were the actual terrorists who planted the bomb. And that case is a district court case, it is on appeal. It is clear to us, and we discuss it in our briefs, that to the extent Judge Jackson in that case relied on a foreseeability analysis, it's directly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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100 4acWterC contrary to the Supreme Court's holding in Burger King. The case that is much more on point here is the one that I mentioned in my opening presentation, the Ungar case out of the District of Rhode Island, which the plaintiffs failed to mention in their briefs, and, notably, they failed to mention it in their presentation today. Finally, your Honor, Mr. Motley referred to the recent Kilburn decision in the D.C. Circuit, and he seems to suggest that the proximate cause standard that was discussed there under the noncommercial tort exception to the FSIA should somehow be implied in the context of personal jurisdiction. In fact, your Honor, the very opposite is true. Congress intended for the foreign sovereign immunity exceptions to encompass a minimum contacts analysis under the due process clause. So what that means in this case is that if Prince Sultan's alleged private conduct does not give rise to personal jurisdiction for all the reasons we've been talking about today, that same exact conduct, the giving of a charitable contributions to a nondesignated perfectly legal charity, cannot give rise to personal jurisdiction over Prince Sultan if it's undertaken in his official as opposed to personal capacity. He's still entitled to due process protections. Thank you, your Honor. THE COURT: Thank you, sir. Anyone else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 4acWterC

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MR. LUTZ: Yes, your Honor. Good afternoon, your Honor. Christopher Lutz for the estate of Mohammad Aljomaih. When I addressed the Court this morning, I observed that when the plaintiffs have been called to account for the specificity of their jurisdictional allegations, they have tended to ignore specifics as to specific defendants and to launch off into a set piece speech, and we heard that from Mr. Motley this morning. Now, as to Mr. Aljomaih, my interest was piqued when Mr. Carter said that the complaints for each defendant specifically allege how they aided and abetted or were involved in the conspiracy. You remember, Mr. Aljomaih is the 88-year-old now dead businessman as to whom there are no allegations in the complaints. When I listened to what Mr. Carter had to say and he stopped, there was nothing about Mr. Aljomaih. The plaintiffs have been, through months of briefing and minutes and hours of argument, asked to explain how the few specific allegations they make get close to sufficiency for personal jurisdiction, and they simply haven't done it. In fact, they had so little to say about some of the defendants that they spent time referring to a man named Batterjee whom none of the defense counsel that have spoken this morning represent. They have had nothing to say about Mr. Aljomaih. What matters for personal jurisdiction purposes is their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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102 4acWterC specific allegations on that point and whether they establish a prima facie case of personal jurisdiction, not these generalized allegations that Mr. Motley went through this morning, and for Mr. Aljomaih, they said nothing. Now, a final point, your Honor, on the Golden Chain, the issue as to which you and Mr. Motley had a lively exchange this morning. Mr. Motley said at the end of the back and forth with you that they didn't really know what it was, but they wished they did. Preliminarily, that's a remarkable basis in the case of Mr. Aljomaih, a document that they don't quite know what it is to accuse him of being an accessory to mass murder, but that's where we stand right now. I do want -- you ask about, you didn't ask so much, your Honor, as a question of discovery to the Golden Chain came up, and I want to address that as to Mr. Aljomaih. To begin with, for Mr. Aljomaih, the Jazini standards for jurisdictional discovery are not met, but there's two other problems. One is a practical one, the man is dead. Mr. Motley says that this Golden Chain document was perhaps authored in 1988. So that discovery would somehow have to be trying to probe into the supposed intent 16 years ago of a man who is no longer alive. It seems to me not practical, besides being not legally justified. And the final point, of course, is that, as I said this morning, Mr. Aljomaih's full name is not on the Golden SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 4acWterC Chain, only his last name and only a city where he never lived. A city 600 miles from where he lived for 60 years. The plaintiffs had the opportunity this morning, your Honor, and through this afternoon, and they said nothing about Mr. Aljomaih. What they have said in their briefs is insufficient and there is no personal jurisdiction over him. Thank you. THE COURT: Thank you, sir. Anyone else? MS. BERNABEI: Yes, your Honor. THE COURT: Oh, by all means. MS. BERNABEI: I'd just like to echo some of the things that Mr. Lutz said. Again, Mr. Motley claims that the defendants did not address the general allegations made against awful them. In fact, that's not what this Court is looking at. In specific jurisdiction analysis, both Calder and PDK Labs in this circuit made clear that you have to look at the specific contacts, the specific actions, the specific defendants. I'd like to just for a moment, even though we don't believe this is the standard, look at the standard the plaintiffs have put forth for holding a defendant in a personal jurisdiction. It's a foreseeability standard that they claim is supported under Burger King and is somewhat mentioned in the Helicopteros Nacionales case, two Supreme Court cases. There SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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104 4acWterC is absolutely no way that the plaintiffs can show that our defendant, Mr. Al-Husaini, that it was foreseeable that if he did make a contribution of a nature that the defendants say he made or may have made, the plaintiffs say he made or had made in 1988, that it was foreseeable that that would cause harm in the United States in 2001. There is simply no way they can make that claim. I'd also like to, again, echo the point about Jazini. There is, Mr. Motley suggested that discovery would be appropriate to help establish personal jurisdiction over these defendants. When there is no factual basis to assert personal jurisdiction, there's not a prima facie case, you have a document that is, you know, basically inscrutable, there is no basis for a prima facie case on jurisdiction, there is no basis to allow jurisdiction, excuse me, allow discovery on personal jurisdiction. Certainly in the case in chief against other defendants, maybe they can probe this document and find out more about it, but it certainly does not present a basis for discovery in personal jurisdiction against Mr. Al-Husaini. THE COURT: Thank you, ma'am. MR. LIEBMAN: Your Honor, Ron Liebman for National Commercial Bank. Mr. Motley asks for discovery against NCB, but he cites nothing in support of his request except a portion of Judge Robertson's opinion dealing with Al Rajhi Bank. That SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 4acWterC citation is off the point. As Mr. Cohen says, first of all, the plaintiffs are not entitled to discovery to make the prima facie case, but at page 97, at 274 F.Supp. 2d, the portion of the Judge Robertson decision that Mr. Motley cites to dealt not with specific jurisdiction but with general jurisdiction or the concept of doing business. What Judge Robertson dealt with were allegations that Al Rajhi had certain contacts with the United States. I have dealt with the issue or the question of NCB and contacts with the United States. There were none. And so, the plaintiffs have not made a case for jurisdictional discovery. With respect to Mr. Carter's comments, your Honor, concerning charitable contributions, there is no allegation in the complaints that NCB made contributions to charities that have been named as terrorist organizations. As the Seventh Circuit cited or held in Boim, funding charities simpliciter is not enough for a personal jurisdiction. There are no allegations in the complaint of facts to support knowledge and intent on the part of NCB. Now, with respect to Mr. Carter's comments about Kahlid Bin Mahfouz and his role at NCB, Judge Robertson also dealt with this point, again with respect to Al Rajhi Bank. Judge Robertson held that without an allegation of scope of employment, it is not permissible to hold against the bank actions, if any, of the bank's CEO. With respect to scope of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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106 4acWterC employment, the plaintiff -- and Kahlid Bin Mahfouz, the plaintiffs themselves allege that Mr. Bin Mahfouz had many different roles. They allege he was the founder of the Blessed Relief Foundation, or Muwafaq. They've alleged that he was an investor in businesses, including the Saudi Economic and Development Company, the Nimir Petroleum, and that he was executive not just at National Commercial Bank but at another bank as well, BCCI. So he had lots of different roles, and there's no allegation that anything they claim Mr. Bin Mahfouz did he did within the scope of his employment at the time as the CEO of National Commercial Bank. And, finally, your Honor, with respect to the claims against Mr. Kahlid Bin Mahfouz, an English court, this year in July of 2004, entered a judgment that declared as false the allegation that as chairman of NCB, Mr. Bin Mahfouz diverted funds or otherwise supported Osama Bin Laden or Al Qaeda. Now, the Court, of course, is not bound by that finding, those findings of fact and that judgment, but under principles of international comity, it is entitled to considerable deference. Thank you, your Honor. THE COURT: Thank you, sir. MR. KAHN: Your Honor, Peter Kahn, on behalf of Abdulrahman Bin Mahfouz, the son of Kahlid Bin Mahfouz you've been hearing about from Mr. Liebman. Three very brief points. Mr. Carter alleged that I wasn't playing it straight SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 4acWterC with the Court this morning when I stated that Muwafaq has not been listed by the United States Government as a specially designated terrorist organization. He cites apparently an alleged Department of Treasury press statement to the contrary. We've never seen such a document, but what we have seen is the official record of the United States Government, which we cite to this Court on the Web site, and that is given at pages 3 and 4 of our reply brief. That is the official record of the United States Government, Muwafaq is not a specially designated terrorist organization. Second, I believe Mr. Carter claimed that we misunderstood the basis for plaintiffs' claim of personal jurisdiction against Abdulrahman Bin Mahfouz. If I understood his argument, he said they were not relying on the acts of the corporations with which he's been involved but rather on his individual acts, and yet he turned around and said we are relying on the fact that he was an agent of these corporations. Your Honor, which one is it? If it's in his individual capacity, they have made no allegations of any personal contacts with the United States. And if it's based on the acts of the corporation, they made no allegations that he participated in, ratified, or even knew of the alleged wrongdoing. They have simply not established personal jurisdiction against him. Finally, your Honor, you may recall that at the end of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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108 4acWterC Mr. Motley's remarks this morning, he said that certain defendants who had argued earlier in the day should not be heard to complain that there were few, if any, specific allegations in the complaint made against them. And I believe I was one who made such a charge. He said that the general allegations in the complaint against all the defendants should suffice. Well, your Honor, that argument is not well founded. It's contrary to well established law, including at least three cases here in the Southern District of New York. We cite them at pages 1 to 3 of our reply brief at footnote 1 therein, and we respectfully ask the Court to take a look at those cases. Even the simplified pleading requirements of Rule 8 require that plaintiffs plead that Mr. Bin Mahfouz himself and not merely, quote/unquote, all defendants engaged in specific conduct giving rise to plaintiffs' claims. Thank you, your Honor. THE COURT: Thank you, sir. MR. GAUCH: Your Honor, James Gauch on behalf of the SBG defendants. I fear I'm on borrowed time. I'll be very brief. Simply two points. First to amplify what Mr. Cooper said in response to the plaintiffs' reliance on the Pugh case for the proposition that FSIA standards of due process should be imported in the ATA. There's also another decision out of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 4acWterC the District of Columbia, more recent, decided earlier this year, Biton, v. Palestine Interim Self-government, 310 F.Supp.2d 172, which, at page 178, adopts exactly this position: "The court notes that the differences between the ATA and FSIA are too great for the common focus on antiterrorism to allow cross-pollination on this issue." And therefore the Court declined to extend Flatow and Rein, the principles of those cases to ATA claims, filed against nonstate defendants. Second point, in several hours of argument, there are occasional flashes of insight. One of these, I think, came at the beginning of Mr. Motley's presentation when he complained that the defendants were claiming that no one should be in this court, "not even people whose name is Bin Laden." That to me is not an extraordinary proposition. I think the other defendants here today would agree with me today that this case isn't about names and about vague associations; it's about specific factual conduct. It takes much more than a name or an association unspecified in time and place to force foreign organizations or foreign individuals to defend themselves in a U.S. court. The plaintiffs have failed to supply that, and therefore, we urge that you grant a motion to dismiss. Thank you. THE COURT: Thank you, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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110 4acWterC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOTLEY: Your Honor, Ron Motley. May I have one minute? We didn't take our 90, Judge. THE COURT: You can have a minute. MR. MOTLEY: Thank you, your Honor. Your Honor, Rule 8 does not require a 10,000-page complaint. Thank you. THE COURT: All right. What time are we on Thursday? Thank you, all, very much. I'll reserve decision and I'll see you all, I believe it's 10:00 on Thursday morning. o0o

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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