1 1 2 3 4 5 6 7 8 9 10 TRANSCRIPT OF HEARING 11 BEFORE THE HONORABLE JOHN F. ANDERSON 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 For the Defendant: 24 25 Nina J. Ginsberg, Esq. Khurrum Wahid, Esq. Syed Ghulam Nabi Fai, in person APPEARANCES: For the United States: Gordon D. Kromberg, Esq. John Gibbs, Esq. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION ________________________________________________________________ ) UNITED STATES OF AMERICA, ) ) Docket No. 1:11-mj-558 v. ) Alexandria, Virginia ) SYED GHULAM NABI FAI, ) July 26, 2011 ) 5:00 p.m. Defendant. ) ) ________________________________________________________________ Tracy L. Westfall OCR-USDC/EDVA 2 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 vice. THE CLERK: Case No. 11-mj-558. P R O C E E D I N G S United States v. Syed Ghulam Nabi Fai. MR. KROMBERG: Good afternoon, Your Honor. Gordon Kromberg for the United States. With me at counsel table is John Gibbs from the Department of Justice, National Security Division, and FBI Special Agent Sarah Linden. THE COURT: Okay. Thank you. Nina MS. GINSBERG: Good afternoon, Your Honor. Ginsberg and Khurrum Wahid on behalf of Dr. Fai. I would preliminarily move Mr. Wahid's mission pro hac The application and fee have been filed with the court. He's previously been admitted to this court on a pro hac vice basis and is admitted to the bars of the states of Florida and New York. He's well qualified to practice in this court. THE COURT: Okay. I've granted that -- or signed that order allowing him to appear in the case. Okay. So we're here for a hearing as to whether there's probable cause for the charge that's been brought against the defendant and on the issue of detention; is that correct? MR. KROMBERG: That's correct, Judge. I believe that we have -- the parties have agreed that there's going to be a waiver of the probable cause hearing and we're going to go ahead with the detention hearing. Tracy L. Westfall OCR-USDC/EDVA 3 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 MS. GINSBERG: executed a waiver. THE COURT: That is correct, Your Honor. We've Thank you. Sir, based on the information that was contained in the affidavit in support of the criminal complaint and also on the waiver form that you and your counsel have signed, I am finding that there is probable cause for the charge that's been brought against you. proceeding as charged at this time. I'm now going to hear some evidence and arguments on the issue of detention. Okay. Thank you. So the case will be Mr. Kromberg. Your Honor, the government relies on the We'd also like to MR. KROMBERG: information in the criminal complaint. proceed by proffer with respect to some statements that were made by Mr. Fai after his arrest on July 19th. In essence, what happened was that Mr. Fai admitted to Special Agent Linden, who's here, that for the last 15 years he's been affiliated with the ISI, the Pakistani intelligence service. The handlers, the ISI handlers that were listed in the He admitted that he criminal complaint were his handlers. submitted budgets to his handlers every year, and each year the ISI either approved his budgets or partially approved his budgets. He agreed -- he agreed that an ISI employee gave money to Zaheer Ahmad who for arranged Zaheer Ahmad's contacts in the Tracy L. Westfall OCR-USDC/EDVA 4 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 United States to give the money to Fai. He agreed that the ISI directs him, Mr. Fai, to go to certain conferences and to report on certain people, including some that were mentioned in the criminal complaint. Finally, that he said that he has never told the board of directors of the Kashmiri American Council that he's supported and funded by the ISI. That's all the -- that's all the proffer I'd like to make, Judge. I will -- for purposes of -- do you want to hear argument at this point? THE COURT: Well, let me just hear if there are any proffers or evidence that the defendant wants to make at this time, and then I'll hear your argument and then their argument. MR. WAHID: Your Honor, would it be okay if we call the agent for me to ask her a few questions? THE COURT: Sure. SARAH LINDEN, after having been duly sworn or affirmed, took the stand and testified as follows: DIRECT EXAMINATION BY MR. WAHID: Q. A. Q. Can you state your name, Agent. My name is Sarah Linden, L-I-N-D-E-N. And you submitted a lengthy affidavit in support of the Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 5 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 charges in this case, correct? A. Q. Yes, that's correct. Okay. Were you also present during the questioning of Dr. Fai post-arrest? A. Q. Yes. All right. First of all, the term handlers, had he ever referred to anyone at the ISI as handlers? A. Until the time of our interview post-arrest, he had never admitted to me that he was affiliated with the ISI, but the question I asked him was about his handler specifically and he did not correct my terminology. Q. A. Q. All right. Yes. Okay. Now, a portion of your affidavit is based upon But that was your word? information collected from two confidential informants; is that correct? A. Q. Yes, that's correct. One of the confidential informants in fact received a benefit for his information, correct? A. Q. A. Q. Yes, that's correct. And that benefit was a reduced jail sentence? Yes. Are you aware of how much time that informant actually got in jail? A. I'm not aware of the exact amount, but I think it was in the Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 6 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 order of five or six years. Q. Okay. Are you aware how much time that person could have gotten in jail without that cooperation? A. I think his sentence was shortened by roughly 18 months, but I don't know the exact number. Q. That informant, I believe it's CW-1 in your affidavit, provided information to you based upon a relationship with Dr. Fai that ended in 1998. A. Q. Is that accurate? I think that is accurate, yes. Where there was a breakdown between the relationship with one of the straw donors and at that time the relationship with Dr. Fai also ended? A. Q. Yes, that's correct. So no relevant information could have been provided to you They wouldn't have had any by that informant, CW-1, after 1998? contact after that? A. I don't believe they had any contact after 1998. That's correct. Q. The second informant, known as CW-2, you state in paragraph 15 that that informant estimated 80 percent of Dr. Fai's statements are from the ISI for Dr. Fai to repeat verbatim. Does that sound correct? A. Q. Yes, that's correct. And have you ever tried in your -THE COURT: We're here on the issue of detention. Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 7 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. WAHID: THE COURT: Yes, Your Honor. I just want to make sure we're focusing on the issues of detention and not probable cause now that we've made a determination on that. MR. WAHID: Okay. This just goes to the Yes, Your Honor. accuracy of the witnesses that are the basis of the affidavit. BY MR. WAHID: Q. Had you ever tried to ever corroborate that allegation by CW-2 that -- have you ever tried to review Dr. Fai's public statements to see if in fact 80 percent of what he is saying is in line with the government of Pakistan's policies? A. My review of the information that ISI provided Dr. Fai showed that rather than giving him verbatim paragraphs of text, they tended to give him bullet points or precise titles for panels they wanted him to participate in or sponsor at various conferences. I don't think I can give you a percentage, but I will say that a large number of the things he did write and the panels he did sponsor adhere very closely to what ISI asked him to. Q. Based on your review, would you agree that Dr. Fai's position on Kashmir was always that Kashmir should essentially vote for its own self-determination? A. Over the last several years, that was certainly his position, yes. Q. Would you agree that Pakistan's policy was that -- Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 8 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 A. MR. KROMBERG: Objection, Judge. Again, as the Court mentioned, we're here on detention, and the Pakistani policy does not seem to have anything to do with the detention hearing. THE COURT: MR. WAHID: THE COURT: I -Going to strength of case, Judge. Well, there certainly is probable cause. So I don't know -- I'll let We've made a determination of that. you go a little bit further down this line, but this is a hearing on the issue of detention, not a trial of the case. Okay? MR. WAHID: BY MR. WAHID: Q. Would you agree that the Pakistani government's policy on Understood. Kashmir has not been in line with the idea of self-determination but in line with the idea that Pakistan has a claim on Kashmir? A. I think at various times various Pakistani politicians have said differing things, but I can tell you that when ISI was speaking with Dr. Fai, they talked about self-determination. Q. Now, let me ask you some questions about your contact with Mr. Fai. Back on July 13th of this year, you had sent an e-mail to Dr. Fai in which you reminded him of an incident where you had come and visited him back in March of this year. Do you recall that? Yes. Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 9 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 Q. Okay. So going back to March, that was a reference to an incident where Dr. Fai had come into the country, had been searched at the airport, and a news article was found in his luggage, correct? A. It wasn't a news article. It was an excerpt of what looked like a court filing from the Lahore High Court about the Raymond Davis legal situation. Q. And then you -- you got ahold of that. It somehow made its way to you from customs -A. Q. A. Q. Uh-huh. -- because it was photocopied, correct? Customs gave me a photocopy of it, yes. Right. So then it made its way to you and you came to visit Dr. Fai to ask him about that document? A. Q. Yes. And it was because it raised your attention in that it was about Raymond Davis who was the -- that was the incident where he's allegedly a CIA operative who shot two folks in Pakistan so it raised your concerns, correct? MR. KROMBERG: Objection, Judge. I don't see how this has anything to do with detention. MR. WAHID: Judge. THE COURT: MR. WAHID: Better be faster than a minute. All right. It's going to risk of flight in a minute, Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 10 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 BY MR. WAHID: Q. A. Q. Do you recall that incident? Yes, I do recall. All right. And he came -- you came to see him and he cooperated with you and he showed you, because he had the original of that document, he showed you that on the back of that document it was actually an article about him or something about him? A. Q. A. It was a photograph of him -Photograph of him. -- or a photograph -- it was a photocopy of a photograph of him, yes. Q. A. Q. And that's why he actually had it in his possession? Yes. Then he actually communicated with you again later, and it was in that July 13th e-mail when you asked him to meet with you, correct? A. Yes. I e-mailed him and asked him if we could sit down and talk about the situation in Kashmir, and he responded that we could. Q. All right. And that was on July 13th. You asked to meet Sorry. with him on July 19th -- or before July 19th. A. On July 13th I asked him if he could meet with me the following Friday or Monday, which was the -Q. The 15th or the 18th. Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 11 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 A. -- 15th or the 18th, I believe. He told me he was out of town until the 17th. Q. He told you he was actually going to the UK and he would be gone for those days and he would be back on the 18th? A. I believe he said he was going to the UK and would be back on the 17th and so we could meet on the 18th. Q. A. Q. A. Q. A. Q. All right. Yes. So he left and he came back -Yes. -- after communicating with you? Yes. Okay. And based on what happened in March, he knew that the You in fact did meet with him on the 18th? FBI was surveilling him, at least to some extent, because you showed up at his door, correct? A. I don't -- I don't claim to know what he knew. We were asked to go talk to him specifically about the Ray Davis thing because customs found it in a secondary examination of his luggage. Q. In March when you saw him, did you ask him about his contacts in Pakistan at that time? A. Q. Yes. Okay. So he knew he was at least being -- at least as of March he knew he was being looked at by the FBI, correct, at least as to his contacts in Pakistan because you asked him about Tracy L. Westfall OCR-USDC/EDVA S. Linden - Direct 12 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? A. I imagine he probably suspected he was on our radar, or if not our radar, the U.S. government's radar. Q. So then after you say you want to speak to him on July 13th, He actually goes to the UK he says he's going to go to the UK. and comes back and actually meets with you at 10:30 on the morning of July 18th? A. Q. Yes. And then that evening he -- are you aware that he made no attempt to flee or anything like that after leaving you the rest of that day? A. Q. Yes, I'm aware of that. In fact, he was at his home that evening and he was being surveilled at his home, correct? A. He went out to dinner with some friends and his family and then he returned home, yes. Q. In fact, he noticed a suspicious car outside and he called Do you know about that? I the police. A. I don't know if it was Dr. Fai or if it was his children. think it was a family member. Q. All right. So then the police came actually to his house and he pointed out the car that he thought was the suspicious car? A. I don't know the sequence of the encounter with Fairfax County. Tracy L. Westfall OCR-USDC/EDVA S. Linden - Cross 13 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 Q. A. Q. All right. Yes. That car was actually law enforcement, correct? It was one of us. It wasn't actually until the next morning when he was on his way to work that he was in fact arrested on this matter? A. I don't know if he was on his way to work. I think he was driving his wife to Metro possibly, but, yes, we arrested him the next morning. Q. But at no point, even after the point he's arrested, was he making any efforts to flee or evade law enforcement? A. Correct. MR. WAHID: THE COURT: All right. Okay. Judge, if I may. CROSS-EXAMINATION BY MR. KROMBERG: Q. You were asked about the interview on July 18th, but you Thank you. MR. KROMBERG: weren't asked about -- much about it, just that it happened. Was there anything different about what happened in the interview on July 18th from the -- what happened at the interview on July 19th when he was arrested? A. Q. A. Q. A. He lied to me on the 18th. Did he tell you that he was affiliated with the ISI? He did not. Did he tell you about his handlers? He specifically denied knowing two of them and identified a Tracy L. Westfall OCR-USDC/EDVA 14 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 third but told me they hadn't spoken in more than ten years. Q. So on the 18th he didn't know that you knew that those were his handlers? A. I don't know what he knew, but he did not tell me the truth about knowing them by either name or photograph. MR. KROMBERG: THE COURT: Thank you. Nothing further, Judge. Thank you. Okay. You may step down. (Witness stands down.) Any other proffers or evidence that the defendant wants -- well, we're going to have one counsel handle the proffers or evidence. argument, but ... MR. WAHID: Yes, Judge. Based on the statement that If you want to -- I'll let you do the the government referred to of Dr. Fai, when he spoke at events, he wrote his own speeches, according to him. words. He chose his own He again told them that the ISI did not tell him what to say or did they have any right of approval over the materials that he prepared. He went on to acknowledge that he was dependent on the ISI for support but maintained that the ISI did not keep him from thinking independently in any way and doing what he felt was best for the Kashmiri people. Dr. Fai sometimes ignored the talking points provided to him by the ISI, and at other times he would use them often without -- with minor rephrasing. Dr. Fai has spoken publicly on umpteen occasions and Tracy L. Westfall OCR-USDC/EDVA 15 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 has very often advocated publicly for positions that are not in conformity with the Pakistani government's policy on Kashmir. He has been known to call to the events that he puts forth some of the most staunch pro-India speakers on the issue of Kashmir and has presented all sides of the argument at every opportunity he can on the issue of Kashmir for the sole purposes of furthering the goals and the aspirations of the people of Kashmir. Thank you. THE COURT: Mr. Kromberg, I'll hear any argument you want to make on the issue of detention, and then I'll hear argument from the defense. MR. KROMBERG: Thank you, Judge. Based on the information in the complaint and to a large degree conceded by Mr. Fai after his arrest, he's been an agent of the Pakistani intelligence service for more than 20 years. As such, it is likely that the Pakistani intelligence service has an obligation to try to protect Mr. Fai from getting prosecuted for being their agent. As a result, he likely has a network of support internationally from the secret service of a foreign government. He agrees, there's no doubt at this point, that he has been affiliated with the Pakistani Inter-Services Intelligence Directorate agency for, he says, 15 years; we say more than 20. Either way, he's been in contact with his handlers hundreds or thousands of times. The ISI has facilities throughout Europe. Tracy L. Westfall OCR-USDC/EDVA 16 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'm sorry. The ISI has what? MR. KROMBERG: Has facilities throughout Europe. As we state in the complaint and as Special Agent Linden explained in the complaint, there are the equivalent Kashmir -- Kashmiri centers in London and Belgium. He could He's obtain assistance from the ISI without going to Pakistan. gotten millions of dollars over the last 20 years from the ISI in the United States of America through a network of supporters, through a network of people used by Zaheer Ahmad to transfer ISI money to Fai. That network -- Zaheer Ahmad is still free. There's no reason to believe that Zaheer Ahmad cannot get money to Mr. Fai even to this day in America or elsewhere around the world. The complaint affidavit explains Zaheer Ahmad obtained money -- arranged for thousands of dollars to be passed to Mr. Fai when Mr. Fai was in Turkey. There's no doubt that, through the ISI, Mr. Fai can get assistance financially and otherwise all around the world. Mr. Fai has traveled internationally, by my count, approximately 30 -- over 35 times in the past five years. comfortable traveling. He left Kashmir when he was in trouble with the government in Kashmir and he never returned. In light of his He's a seasoned traveller. He's past history of leaving Kashmir to avoid prosecution in Kashmir, in light of his ability to get -- Tracy L. Westfall OCR-USDC/EDVA 17 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: What evidence is there of that? In March 2007 -- do we have -- I don't MR. KROMBERG: recall whether it's in the affidavit or not, but he told that to Special Agent Linden, that he fled Kashmir to Saudi Arabia when he learned he would be arrested in Kashmir. And by his own account, he has not returned to Kashmir since that time. He's a traveler. intelligence service. intelligence service. He has access to help from a foreign He's been an agent of a foreign And even if, as the defense suggests, everything he does is not for the foreign intelligence service, it's undisputed that some of the things he does is for the foreign intelligence service. As a result, the foreign intelligence service likely has obligations to the defendant and is likely to try to help him; therefore, he is a risk of flight and we cannot assure that he would be around for trial. THE COURT: Thank you, Judge. Ms. Ginsberg. Your Honor, a number of things. MS. GINSBERG: I think Mr. Kromberg's wild speculation that the ISI has some obligation to protect Dr. Fai is totally unfounded. It's mere speculation. The government has been listening to Dr. Fai's conversations with the Pakistanis, numerous FISA warrants have been issued. If there had ever been a single conversation which would suggest that Dr. Fai was acting as their agent and that were he to get in trouble that they would Tracy L. Westfall OCR-USDC/EDVA 18 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 protect him, I am absolutely certain that Mr. Kromberg would have told you about it. There is no evidence whatsoever to support the speculations of what might happen in some foreign country. fact, the only public statements, the only public statements that the Pakistani government has made since Dr. Fai's arrest is to deny the allegation strenuously and to -- to accuse the United States of bringing these charges in retaliation for conduct of the Pakistani government with respect to American officials. So there is absolutely -- there's no basis for that In kind of inflammatory accusation and speculation. Dr. Fai has been on the government's radar for a very long time. He has traveled always in the open. In fact, Agent Linden conceded, I think, that he knew that he was on the radar. She asked to meet with him. going to London. He was leaving the country. He was He She asked him to meet with him {sic}. didn't have any hesitation about meeting with her. be happy to meet with you, but I'm going to London. back in four or five days. return. He said I'll I'll be I will meet you the day after I That's exactly what he did. And he met with the agent. He was asked about the specific people who the government claims are his handlers who he's been interacting with for a number of years. He certainly knew, even though he denied having contact and having knowledge of these people, he certainly knew that the government suspected Tracy L. Westfall OCR-USDC/EDVA 19 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 that he had and there was an agent who was positioned outside his home that evening all through the night watching his house. Dr. Fai made no efforts whatsoever to flee and there's absolutely no reason to think that he would. In fact, were he to run from these charges, he would essentially be abandoning his life work on behalf of free Kashmir. With -- just briefly with regard to the strength of the government's case. the affidavit. I imagine Your Honor had a chance to read There are a lot of documents that were either They -- Your Honor, seized or phone calls that were overheard. they are part of a bigger picture. And while they certainly appear to establish that Dr. Fai was receiving funds from someone in Pakistan who was affiliated with the ISI, they do not by any means establish that the positions he advocated publicly and the positions he advocated with members of Congress, heads of state, the President of the United States, presidents of other countries, there is nothing in that affidavit from which this Court can conclude that he ever advocated a position that was solely for the benefit of Pakistan. And to the extent that his public writings and his public speaking is inconsistent, is totally inconsistent with that, there is a legitimate question as to the degree of the government's -- the likelihood of success of the government's case. I will concede that it is very -- the government has a Tracy L. Westfall OCR-USDC/EDVA 20 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 very, what I consider, strong case with respect to his making a false statement to a federal agent, but, Your Honor, he is facing -- this is a man who has no criminal record, is essentially a public figure who is facing two charges with maximum penalties of five years each. So the incentive to flee in this case where his whole professional, his whole life's work is at issue is extremely, extremely low. I think the evidence of the fact that he could certainly have suspected he was under investigation, was out of the country and could very easily, if it was his desire, could very easily have stayed outside of the country, is very strong evidence that he has no intent to flee. With respect to the pretrial services report, we would -- we would adopt the recommendations of that report, but I would like to bring to the Court's attention, there's information in here which we believe to be incorrect under his history of residence and family ties. Apparently, the pretrial services officer's search of public records indicated that he came to the country in March of 1989 and became a citizen on October 13th of 1994. He was -- Dr. Fai has been living in the He United States since 1990 -- I'm sorry -- since 1980. attended Temple University there. '80s there. THE COURT: He met his wife in the early It does say that in the first sentence -In the first sentence. MS. GINSBERG: Tracy L. Westfall OCR-USDC/EDVA 21 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 1980. THE COURT: -- that he came to the United States in MS. GINSBERG: United States. second child. But he -- he -- he was a resident of the He married and had has first child in 1988, a Both of his children are U.S. citizens and his -They've he and his wife were both naturalized in about 1986. lived in Virginia since 19 -- approximately 1990. very stable residences. They've had They owned one home which they sold and purchased the home that they currently live in and have been members of this community since that time. They have two children who are college students. of whom is at Stanford and one of whom just graduated from Ohio -- I think Ohio State and is going on to be -- to veterinary school. Your Honor, there is tremendous support for Dr. Fai in this community, locally and in the United States in general, and any of number of people who would come forward and offer their support for him and would assume responsibilities to the Court should the Court find that necessary with respect to his release, but his wife is a qualified third-party custodian. She's a federal government employee, a GS-13. the government for five or six years. The home that they own has equity of approximately at least $500,000, and I have verified that by looking at their mortgage statement and the tax records. So -- and they are Has worked for One Tracy L. Westfall OCR-USDC/EDVA 22 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 prepared to post their home as collateral for any bond. Two or three additional people who are friends of Dr. Fai's have indicated that they also would be willing to post their homes as collateral if the Court were to feel that was necessary. don't think that anything like that is necessary. The government has Dr. Fai's passport. willing to surrender her passport. His wife is I And in the -- in the -- to the extent that the Court believes that all of those conditions are not sufficient, Dr. Fai can be placed on house arrest with electronic monitoring so that the government would know that he is not leaving the country. even leaving his home. This is a case where, frankly, I'm very surprised to hear the government ask for detention. I think Dr. Fai, as part He's not leaving the area, he's not of his work, was a very frequent traveler, but that has by no reason any indication if he was told to remain in this country, there's no indication of the fact that he has traveled in the past and has contacts around the world that would indicate that he would not observe the Court's order. When he was questioned by the FBI, he invited the agent into his home. He didn't have any obligation to speak with the When she asked him to meet with This is a agent in March of this year. him {sic}, he was more than happy to meet with her. man who's shown nothing but respect for law enforcement and has earned the respect, at least until now, of literally heads of Tracy L. Westfall OCR-USDC/EDVA 23 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 state. And for this -THE COURT: Well, it's a little bit of an overstatement to say nothing but respect when the allegations are that he wasn't truthful to law enforcement officers. MS. GINSBERG: I said up to this point. I understand. He has made -- he has made false statements to a law enforcement agency, but there are persons around the world who have credited the veracity of statements that he has made about the plight of Kashmir and his intentions with respect to assisting the Kashmiri people that have been credited by people who have great responsibilities in this country and in others. I think that there is absolutely no reason to believe that with any number of these conditions that he would not observe all of the -- observe all of the requirements that the Court would impose. THE COURT: Mr. Kromberg, I'll give you the last say since it's your burden. MR. KROMBERG: Thank you, Your Honor. I think Your Honor's point about the nothing but respect is -- remark is a key one. In April -- in March of 2010, the Justice Department sent a letter to Mr. Fai saying -asking if he was an agent of a foreign -- entity of a foreign government, giving him another shot to come clean, and he wrote back and said he has no contact. He's not an agent, he has no contact, he doesn't get funding from any foreign government. Tracy L. Westfall OCR-USDC/EDVA 24 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 All of these people who support him didn't know that he was getting his money from the ISI and taking direction from the ISI on many things. He was living a lie. When he spoke to politicians, when he spoke to members of Congress, when he spoke to heads of state, he didn't say I get my money from the ISI. He said I get my money from an indigenous American organization. Well, it is an indigenous American organization that is funded by the ISI. The bulk of its funding comes from the ISI. The bulk of its funding has always come from the ISI. by the ISI. It was set up That's not showing respect to law enforcement, to heads of state, to members of Congress, to his own board of directors, to any of his supporters. The fact that his house has equity in it is interesting but not particularly helpful because the Foreign Agents Registration Act is a violation. It is a specified unlawful activity under the money laundering laws, and as a result, as noted in the complaint, the government is seeking forfeiture of the proceeds of the violation. The proceeds of the violation consists of millions of dollars that Mr. Fai got from the ISI over the past 20 years. There has been lis pendens filed on the Fai house so that money is not available to be posted. I don't think any money that If there is any -- if Mr. Fai has is useful for being posted. the Court goes down that road, the government is going to request a Nebbia hearing to find out the source of the money, Tracy L. Westfall OCR-USDC/EDVA 25 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 because after 20 years of financial support from the ISI, we're interested in where the money is coming from now. Thank you, Judge. THE COURT: Mr. Fai, would you please rise. Sir, having heard the evidence that's been presented here today and having reviewed the information that's contained in the pretrial services report and the affidavit in support of the criminal complaint, I do find that there are certain conditions that I can set that would satisfy me that you would appear at further proceedings and that the safety of the community could be assured. You need to understand that these are conditions that the Court will take very seriously, that if there are any violations of any of these conditions that we set out, they will be acted on swiftly and firmly. That is, you'll be brought back into court either through a summons or through an arrest warrant and your right to remain free pending trial very well may be taken away. So you need to understand that these are conditions that need to be complied with fully and completely. You won't be able to be released immediately because some of these conditions will take some time in order to establish, but the process will start soon such that you will be able to be released once these conditions have been satisfied, but, again, all of these conditions will have to be satisfied before you're released. And once they are, you will be able to Tracy L. Westfall OCR-USDC/EDVA 26 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 be released. I am going to allow you to be released on an unsecured bond in the amount of $100,000. It will have to be secured by I will talk you and by the third-party custodian, your wife. about that in a minute. supervision. You'll be released subject to pretrial You'll be released to and must reside with your wife, the third-party custodian, and she must also surrender her passport. I'm going to make that as a requirement as well. You're not to move from your current residence without prior approval of the Court or pretrial services. I'm going to require you to be on home detention with electronic monitoring. There'll be time-outs that will be allowed for you to meet with your counsel or for court appearances, things like that, but other than that, you're going to be on home detention. You'll have to be set up with electronic monitoring that will show that you're remaining where you're supposed to be remaining, and we'll be alerted if there's any movement outside of the home detention area. Obviously, your travel will be restricted to the Washington, D.C. metropolitan area without prior approval of the Court or pretrial services. I understand you have surrendered the passport. that -- that was taken into custody; is that correct? MS. GINSBERG: passport. MR. KROMBERG: I believe that's correct, Your Honor. I believe the government seized his Is Tracy L. Westfall OCR-USDC/EDVA 27 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 that. THE COURT: Okay. Well, to the extent that you have any other passports or any other travel-related documents, they must be turned over before you're released. You're not to obtain any new passport or any other travel-related documents while you're on supervision. You're to have no contact with the codefendants or potential witnesses in this case unless you're in the presence of defense counsel. Do you understand that? That's no contact whatsoever. It doesn't mean It means using No e-mails, It's no telephone conversations, face-to-face meetings. intermediaries to get information back and forth. text messages, Facebook, any of that kind of stuff. contact whatsoever. Do you understand that? Once those conditions have been satisfied, you'll be able to be released from custody. Anything else in this matter? MR. KROMBERG: Judge, two things on those conditions. One, I hoped you could add no contacts with any representatives of any foreign government; and, second, when -MS. GINSBERG: attorneys. MR. KROMBERG: Right. I don't have any objection to Your Honor, except through his THE COURT: Okay. I'll add no contacts with Tracy L. Westfall OCR-USDC/EDVA 28 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 representatives of a foreign government except through his attorneys. MR. KROMBERG: And the other issue, Judge, was on the This issue has come up home detention electronic monitoring. before. And with -- and pretrial services works very hard, but they may not react as fast as the FBI would react in a case where someone is not where they're supposed to be. We ask that pretrial services be directed to immediately notify FBI, a contact that we'll provide from the FBI if -- if the defendant has strayed from where he is supposed to be. THE COURT: I'm let you deal with -- I mean, I probation and pretrial services does a very good job on what they do. I'm sure if you explain to them the circumstances, that they will alert who needs to be alerted on any violations. But I'm fairly confident that Mr. Fai is not going to be violating any of the conditions of this -- that I've set out here today because I think he is capable of understanding that if he does so, he'll be brought back into court and his right to remain free will be taken away. seriously. MS. GINSBERG: Judge, we have no objection to the So we do take those very pretrial services making immediate notification. THE COURT: I suspect they would without anybody -Telling them to. MS. GINSBERG: THE COURT: -- asking them to do it, but that should be Tracy L. Westfall OCR-USDC/EDVA 29 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 part of what we deal with. Okay. Thank you. I appreciate everybody's patience. Court will be in recess. * * * (Proceedings concluded at 5:40 p.m.) Tracy L. Westfall OCR-USDC/EDVA 30 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 /s/ ____________________________________ Tracy Westfall, RPR, CMRS, CCR I hereby, this 12th day of September 2011, that the foregoing is a correct transcript from the recording provided by the court. Any errors or omissions are due to the inability of CERTIFICATION the undersigned to hear or understand said recording. Tracy L. Westfall OCR-USDC/EDVA