Case No. 96-_____

(Case No. 96-CR-68-M below)





MARCH 25, 1997

Stephen Jones, OBA #4805

Robert Nigh, Jr., OBA #011686

Richard Burr, FBA #407402

Jeralyn E. Merritt, Esquire

Cheryl A. Ramsey, OBA #7403

Christopher L. Tritico, TBA #20232050

Of Counsel

Robert L. Wyatt, IV, OBA #13154

Michael D. Roberts, OBA #13764

James L. Hankins, OBA #15506

Randall T. Coyne, OBA #549013

Amber McLaughlin, TBA #1374098

Robert J. Warren, OBA #16123

Mandy Welch, TBA #21125380

Holly Hillerman, OBA #017055












A. Immediate Effects of the Explosion


B. The Response of the Federal Government


1. The Government's Immediate Response to the Bombing


a. Mobilization


b. Evidence From Public Sources of government Use of Intelligence Networks With

Foreign Nations in the Investigation of the Alfred P. Murrah Building Bombing


C. CIA and NSA Investigation Protocol


2. Evidence of the International Scope of the Investigation and the

Involvement of

Organs of State Intelligence in

Several U.S. Domestic Bombing Cases Including the Alfred P. Murrah Building


3. The Investigative Focus Upon Foreign Terrorists










A. Elliott's Body Shop


B. Oklahoma City Eyewitnesses


C. Jeff Davis


D. Frederick Schlender


E. Legal Significance of the Existence of "Others Unknown"





A. Elohim City


B. Dennis Mahon, Andreas Strassmeir and Carol Howe


1. Dennis Mahon


2. Andreas Strassmeir


3. Carol Howe and the Bureau of Alcohol, Tobacco and Firearms




A. Suspect I, Posse Comitatus, and Iraq


1. Posse Comitatus


B. Saudi Report Concerning Iraq


C. FBI Special Agent Kevin Foust


2. State Sponsorship Precedent


D. Israelis Present at the Bomb Site


E. A Subject of the Investigation in the Philippines





A. Introduction




A. The Government's Restrictive Definition of Brady


B. Counsel for the Government are Powerless to Effect Disclosure of


Information from National Intelligence Agencies




A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable

Upon Petition

for Writ of Mandamus


B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the

Requested Discovery



C. The District Court Abused its Discretion by Denying Mr. McVeigh's

Repeated Requests

for Brady Material


D. Standard for Guidance in Search


E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and


the District Court's Abuse of Discretion Jeopardizes Both Stages of Mr.

McVeigh's Capital









United States Supreme Court Cases


Arizona v. Youngblood, 488 U.S.51,58 (1988)


Bankers Life & Cas. Co. V. Holland, 346 U.S.379 (1953)


Brady v. Maryland, 373 U.S. 83(1963)


Eddings v. Oklahoma, 455 U.S. 104, 110-12(1982)


Giglio v. United States, 405 U.S. 150(1972)


Kyles v. Whitley, 514 U.S.419, 115 S. Ct. 1555, 1565-68, 131 L

Ed. 2d490 (1995).

115, 142, 143, 14S,


Roche v. Evaporated Milk Assn., 319 U.S.21(1943)


Snepp v. United States, 444 U.S.507, 512 (1980)


United States v. Agurs, 427 U.S.97, 110(1976)


United State v. Bagley, 473 U.S.667, 675(1985)


United States v. Richard M. Nixon, President of the United

States, 418 U.S. 683(1974)


Will v. United States, 389 U.S. 90, 95(1967)



Other Federal Cases

Chaney v. Brown, 730 F.2d1334, 1345 (10th Cir. 1984), cert. denied, 496 U.S.


146, 147, 148

Hopkinson v. Shillinger, 781 F. Supp. 737 (D. Wyo. 1991)

150, 151, 152

In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F. 2d755(7th

Cir. 1994)


Nichols v. Alley, 71 F.3d347(10th Cir. 1995)


Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d801,

824(10th Cir.1995)

144, 145, 146

Texaco, Inc. v. Chandler, 354 F. 2d655(10th Cir. 1965), cert. denied, 383 U.S.



United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984)


United States ex rel Smith v. Fairman, 769 F.2d386, 391-93 (7th Cir. 1985)


United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990 )


United States v. George, 786 F. Sup. 11, 13(D.D.C> 1991)


United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988)


United States v. Mandel, 914 F. 2d 1215, 1219 (9th Cir. 1990)


United States v. McAnderson, 914 F. 2d934(7th Cu. 1990)



United States v. McVeigh, 923 F.Supp.1310,1313(D.Colo.1996)


United States v. Perdomo, 929 F.2d967-978(3d Cir.1991)


United States v. Penix, 516 F.Supp.248, 255 (W.D. Okla. 1981)


United States v. Poindexter, 727 F.Supp.1470(D.D.C.1989), rev.d on other

"rounds, 951 F.2d366(D.C. Cir. 1991)


United States v. Rahman, 870 F.Supp.47,51(S.D.N.Y.1994)


United States v. Rewald, 889 F.2d836 (9th Cir.1989)


United States v. Rezaq, 156 F.R.D.514,519(D.D.C.1994)


United States v. Ritter, 272 F.2d30,32(10th Cir.1959), cert. denied, 362



United States v. Trevino, 556 F.2d1265, 1272 (5th Cir.1977)


United States v. Yunis, 867 F.2d617,623(D.C.1989)


United States v. Yunis, 924 F.2d1086,1095(D.C.Cir.1991)


United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995)


Other Authorities

28 U.S.C.'1651(a)



129, 138,139











Case No. 96 (Case No. 96-CR-68-M below)



COMES NOW the Petitioner, Timothy James McVeigh, by and through the

undersigned counsel, and moves this Court to:

1. Assume jurisdiction in this matter and issue a Writ of Mandamus to the

respondent trial judge directing the respondent to enter the appropriate

orders specifically requested herein; and

2. Issue a stay of the proceedings below pending resolution of this Petition

in this Court or, in the alternative, allow jury selection to proceed on

schedule, March 31, 1997, but stay the taking of evidence in the court below

pending this Court's resolution of the Petition.


The McVeigh defense, based upon the material provided to it, suggests the

following hypothesis: A foreign power, probably Iraq, but not excluding the

possibility of another foreign state, planned a terrorist attack(s) in the

United States and that one of those targets was the Alfred P. Murrah

Building in Oklahoma City. The Murrah Building was chosen either because of

lack of security (i.e. it was a "soft target"), or because of available

resources such as Iraqi POW's who had been admitted into the United States

were located in Oklahoma City, or possibly because the location of the

building was important to American neo-Nazis such as those individuals who

supported Richard Snell who was executed in Arkansas on April 19, 1995.

The plan was arranged for a Middle Eastern bombing engineer to engineer the

bomb in such a way that it could be carefully transported and successfully

detonated. There is no reported incident of neo-Nazis or extreme right-wing

militants in this country exploding any bomb of any significant size let

alone one to bring down a nine (9) story federal building and kill 168

persons. In fact, not even members of the left-wing militant groups such as

the Weatherman were ever able to accomplish anything of this magnitude.

This terrorist attack was "contracted out" to persons whose organization and

ideology was friendly to policies of the foreign power and included dislike

and hatred of the United States government itself, and possibly included was

a desire for revenge against the United States, with possible anti-black and

anti-semitic overtones. Because Iraq had tried a similar approach in 1990,

but had been thwarted by Syrian intelligence information given to the United

States, this time the information was passed through an Iraqi intelligence

base in the Philippines.

Operating out of the Philippines as a base, the state-sponspored [sic]

terrorists, with the Murrah Building already chosen as the target, enlisted

the support and assistance of members of the Radical American Right. The

defense believes the evidence suggests that American neo-Nazis were chosen

to carry out the bombing of the Murrah Building because of a shared

ideological bent of hatred against the American government. It is possible

that those who carried out the bombing were unaware of the true sponsor.

The evidence collected by the defense suggests that the desired ideology was

found by the state-sponsored terrorists in Elohim City, Oklahoma, a small

compound near Muldrow, Oklahoma, consisting of between 25 and 30 families

and described as a terrorist organization which preaches white supremacy,

polygamy and overthrow of the government. Elohim City was a haven for former

members of The Covenant, The Sword and the Arm of the Lord ("CSA"), another

extremist organization that had been raided by the federal government on

April 19, 1995, exactly ten years to the day prior to the Oklahoma City

bombing. One member of CSA turned on the organization and testified in court

at the trial of Richard Snell and others who were charged in Arkansas with

sedition in that they conspired to destroy the Alfred P. Murrah Building in

Oklahoma City with a rocket

launcher in the early 1980's. Snell was convicted on unrelated capital

charges and sentenced to death in Arkansas. He was executed the day of the

Oklahoma City bombing--April 19, 1995--and is buried at Elohim City. It is

from this group of people that the defense believes that the evidence

suggests foreign, state-sponsored terrorists groomed the most radical

persons associated with Elohim City and extracted monumental revenge against

the federal government by destroying the Murrah Building on the day of

Richard Snell's execution and the anniversary date of federal raid.

But the defense hypothesis also entails evidence, very strong evidence, that

the federal government, through the Bureau of Alcohol, Tobacco & Firearms,

had an informant in Elohim City, an informant who warned federal law

enforcement prior to April 19, 1995, that former residents, including the

former chief of security, of Elohim City were planning to "target for

destruction" federal buildings in Oklahoma, including the Alfred P. Murrah

Building. The defense believes this scenario is true, that is is [sic]

eerily similar to the World Trade Center bombing where the FBI had an

informant infiltrate the terrorist group but failed to stop that criminal

act, and that, absent judicial intervention, information concerning these

matters in the possession of the federal

government will be forever buried.

The defense for Mr. McVeigh is not engaged in a fishing expedition. As the

information set forth in this Petition demonstrates, the McVeigh defense,

using resources provided to it by the district court, has conducted a

wide-ranging and increasingly narrow focused investigation. But without

subpoena power, without the right to take depositions, and without access to

national intelligence information, the McVeigh defense can go no further.




The Government of the United States is hiding from the defense and the trial

court evidence and information that the government had a prior warning that

the Alfred P. Murrah Federal Building in Oklahoma City (and possibly federal

property in Tulsa) was very likely a target of a terrorist attack on or

about April 19, 1995. This information came to the government from a variety

of sources, including Carol Howe, a paid ATF informant for about 6 months,

who infiltrated Elohim City and the Christian Identity Movement and who

provided specific information prior to April 19, 1995, that an illegal

German national, the grandson of one of the founders of the German Nazi

Party, proposed to bomb federal buildings and installations and engage in

mass murder. Information also came to the government through foreign

intelligence services in the Middle East and from the government's own

assets that an attack was being planned on the "heartland" of America.

The government responded to part of these warnings by conducting a

superficial security examination of the federal building complex in Oklahoma

City on the early morning hours of April 19, 1995.[1]



[1] Several witnesses interviewed by ABC News 20/20, including an attorney

and a private process server, among others, claim to have seen law

enforcement using sniffer dogs, as well as a "bomb disposal" or "bomb squad"

unit truck near the Murrah Building in the early morning hours of April 19,

1995, shortly before the bombing. See attached Exhibit "D" (transcript of

ABC News 20/20 broadcast, January 17, 1997). Oklahoma County Sheriff J.D.

Sharp denied the presence of the Oklahoma County bomb squad truck, telling

local media on the record that the county bomb truck was ten miles away from

downtown and nowhere near the country courthouse. See attached Exhibit "E."

However, the County Sheriff's office later stated that the bomb squad unit

was in fact in downtown Oklahoma City the morning of the bombing for a

routine training exercise. See attached Exhibit "H." This information was

confirmed to the defense through discovery. See exhibits "J" and "K" The

presence of the bomb squad truck was commented on by several other persons

and mentioned in a business newsletter of one downtown Oklahoma City

business. See attached Exhibit "F';; see also Exhibit "G" (news account of

witness in Oklahoma City who recalled that, "The day was fine, everything

was normal when I arrived at 7:45 to begin my day at 8:00 a.m., but as I

walked through my building's parking lot, I remember seeing a bomb squad.")


But rather than admit that it acted, no matter how superficially or limited

on this information, the government has chosen to deny, and maybe even

withholding from the chief prosecutor, evidence of this prior warning from

an informant it deemed reliable because she regularly passed polygraph

tests. The defense has repeatedly sought by letter, motion, argument in

chambers and in open court, detailed information which it knows the

government has.

The district court has repeatedly advised the government, both in published

opinions and in judicial statements, of the government's duty. The

government has claimed it understood its duty. We submit the government has

affirmatively misled the district court repeatedly on this subject, through

prosecutors who may or may not know the truth. The government, in short, is

stonewalling. The Defendant has made a sufficient showing below for a

judicial order compelling the FBI, the Department of Justice, ATF,

Department of State, the National Security Agency, and the Central

Intelligence Agency to produce information to support the Defendant's claims

which are a material part of his defense.

Timothy McVeigh's defense is that (1) he did not rent the Ryder truck (2) he

did not assemble a bomb at Geary Lake State Park (3) he did not drive the

Ryder truck to Oklahoma City, and (4) he did not detonate the bomb. There is

a lack of credible government evidence to convince any fair-minded jury

beyond a reasonable doubt that he did in fact do these things, and there is

credible testimony and evidence known to the government and the defense

which impeaches each of the government's claims down to and including who

rented the truck the number of conspirators, where the bomb was assembled,

and who left the truck after parking it in front of the Murrah Building. The

information which will help to establish Mr. McVeigh's innocence in front of

the jury, particularly in light of the recent bizarre disclosures by two

thieves[2] masquerading as journalists, is uniquely in the hands of the




[2] In late January, one stole computer information by personally

downloading from a defense lap top computer material he was not authorized

to receive. The other secured the information by personal, unethical and

immoral means plus theft, and then proceeded to embellish the stolen

document with language found no place in the document which he

mischaracterized (because it bore a computer generated logo "Attorney Work

Product, Privileged and Confidential, Attorney/Client Communication") as

coming from the Defendant. A Motion to Dismiss the Indictment and Abate the

Proceedings Through a Change of Venue or Continuance was denied by the

Respondent Trial Court on Monday, March 17, 1997. See D.E. 3429.


However, with the resources allowed it by the district court pursuant to the

Crimes and Offenses Act of 1790 as modified by the Criminal Justice Act of

1963, the Defendant has made a substantial investigation and has produced

volumes of evidence and specifications of materiality to the district court

ex parse, in camera and on some occasions in open court or in camera with

the prosecutors. The government's reaction has consistently been first to

deny, then to produce a scant amount of information as the Defendant files

formal motions, then to produce a little bit more just before the hearing,

then to deny the existence of anything else, then when the "anything else"

surfaces, grudgingly to admit that it has been found. See D.E. 1918 at 6-35.

There is no better example of this

than the government's submission to the defense in January, 1996 of a

two-page FBI Insert of a conversation with Carol Howe in which she is not

identified by her last name and every proper noun, including Dennis Mahon,

Andreas Strassmeir, Elohim City, and the Reverend Robert Millar, is

grotesquely misspelled so that it could not reasonably be found. D.E. 3313,

Exhibit "D."

Then, when this information surfaced, the government informed the Court that

Ms. Howe had been an ATF informant until a date several weeks prior to April

19, 1995. See Transcript of Scheduling and Rule 17.1 Conference--Sealed,

January 29, 1997, at 67. Then, when the defense discovered that in fact she

had continued to be an informant after the bombing, the government

acknowledged to the Court that in fact she had been an ATF informant in late

April and early May 1995 and had been sent back to Elohim City.[3]



[3] The government on background (see below) has confirmed details given to

the Court in camera to ABC and NBC News. Hence the discussion here.


See D.E. 3360 at 2-4. The same pattern of disingenuous,

economical-with-the-truth statements and representations by the government

to the district court permeates its claims concerning FBI Laboratory

material (now presumably largely furnished), prior warnings, possible

foreign involvement, and other material.

The Petitioner asks this Court to enter a Writ of Mandamus directing the

District Court to enter an order commanding the government to produce the

material requested in the manner outlined by the defense in sealed district

court documents D.E. 2768 and D.E. 3123. The District Court has declined to

do so. See D.E. 3016; D.E. 2840 (January 8, 1997 Pretrial Conference: Volume

m--Sealed); D.E. 2866 (January 9, 1997 Pretrial Conference: Volume

IV--Sealed); D.E. 3410 (March 10, 1997 Pretrial Hearing--Sealed--Not

Provided to Defendant Nichols). The defense has made a sufficient showing

under Brady and Rule 16 that the requested information is required in order

to defend properly against the allegations in the Indictment and for a

fundamentally fair trial in this capital case.

In order to file this Writ of Mandamus and make the appropriate allegations,

most of the material relied upon originates from the public record, what has

appeared in the press, and open judicial proceedings. In a few cases, names

have been redacted or otherwise modified in order to protect the rights of

other persons not on trial and to protect the security and secrecy of




[4] Information given to the media by the government or others, even if the

substance of the same material was filed under seal, is included here

because it is already in the public record through interviews with the media.


All of the documents filed under seal, some of which are ex parte, in camera

pursuant to controlling caselaw, are identified by Docket Number ("D.E.")

and within that Docket Number the exhibit number or page number so that the

Court may quickly find the material.

This issue arrives before the Court at this late date simply because the

defense has repeatedly gone to the government with information and requests,

had to then seek intervention from the district court, and the last district

court order has been issued within the last two weeks. D.E. 3410. The

district court has denied defense motions for either a continuance or, in

the alternative, a dismissal. Trial is now set to commence on March 31,

1997, with the selection of the jury. The defense moves that the Court,

while considering this matter, either stay the commencement of the trial, or

proceed with jury selection but stay the commencement of evidence being

received until this matter has been resolved in this Court.

One hundred and sixty-eight people died in the Oklahoma City bombing. The

devastation was total and complete. The public is entitled to accept the

jury's verdict, whatever it is, with safety and confidence, bizarre press

sensationalism and government stonewalling notwithstanding. The Petitioner

is entitled to the relief set forth herein in order that he may meet the

government's evidence.






A. Immediate Effects of the Explosion.

On April 19, 1995, at approximately 9:02 a.m. a "massive explosive"

detonated outside the Alfred P. Murrah Federal Building in Oklahoma City,

Oklahoma. The shockwave of the explosion blew into and through the Murrah

Building and scores of other buildings in the downtown Oklahoma City area,

including the United States Courthouse located just one block away. D.E. 222

at 1. Alerted by the concussion of the blast, crowds of persons appeared

from the areas surrounding the blast site and immediately began to tend to

the injured, most cut by flying debris and still in uncomprehending shock at

what had happened. Persons present near the explosion began to comprehend

the scale of destruction that had occurred when they looked at the gaping

ruins that moments before had been a federal office building--but which in a

matter of seconds had been turned into a grave site for 168 federal workers

with scores still trapped and injured in the collapsed, still smoking building.

When the explosion occurred, the United States Courthouse trembled one block

away as if caught in an earthquake. Over one hundred 36" by 54" windows

shattered and flew into the Courthouse. Id. Inside, heavy courtroom doors

were jammed, courtrooms were flooded with broken glass, judges' chambers

were turned into piles of plaster, fallen ceiling tiles, and broken glass.

Shards of glass peppered and scarred desks, courtroom furniture, and walls.

Inside the Courthouse and the remaining structure of the Alfred P. Murrah

Building, there was pandemonium. People ran screaming from courtrooms,

judges' chambers, and offices. The halls quickly became jammed with

panic-stricken people and a stifling mixture of dust and acrid smoke. The

Courthouse exits were destroyed, making evacuation excruciatingly slow for

everyone. No one had any idea what had befallen them or those far less

fortunate in the Murrah Building. Terror and shock permeated the Federal

Courthouse, the trapped survivors of the Murrah Building, and the occupants

of surrounding buildings. See D.E. 222 at 6. The destruction of the Murrah

Building, and the subsequent investigation by federal and state law

enforcement, is simply unparalleled in American history. The resulting

criminal prosecution of Timothy James McVeigh and Terry Lynn Nichols has

resulted in an Indictment which accuses these two Defendants of

participating in a crime which encompasses the intentional homicides of 168

people, inflicting injuries upon 503 others, damaging 320 structures in the

area surrounding the Murrah Building, and being responsible for

approximately $651 million dollars in recovery costs. D.E. 215 at 16.

This is a federal criminal case in which the able 53-year-old Republican

Governor of Oklahoma, Frank Keating, stated that the bombing in Oklahoma

City was unlike anything he had ever seen as an FBI Agent, U.S. Attorney, or

law enforcement official in the Reagan and Bush Administrations. This is a

case in which Kevin McNally, Federal Death Penalty Resource counsel, stated

in a sworn affidavit that, to his knowledge, is the largest murder case in

American history. Id.

This is a case which immediately captured the personal attention of the

President of the United States, resulting in a trip to Oklahoma City by

President Clinton to address survivors of the bombing and the nation. This

is a case in which a Federal Grand Jury met and a preliminary hearing was

held on an Air Force Base amidst the chirping of a family of birds because

the bombing had significantly destroyed the Federal Courthouse in Oklahoma

City. See United States v. McVeigh, No. M-95-98-H, Transcript of Preliminary

Hearing had on April 27, 1995 at 3. The magistrate presiding over the

preliminary hearing noted with judicial understatement that this case

presented "unusual circumstances." Id. at 4. Susan Otto, the Federal Public

Defender for the Western District of Oklahoma, in support of a Motion to

Transfer, stated that she had not found a case in the history of this

country that was of such magnitude. Id. at 10. This is now a capital case

involving multiple investigation sites including Oklahoma, Kansas, Michigan,

Arizona, New York, Florida, as well as others worldwide.

This is a case in which Judge Russell, in granting the government more time

to issue an Indictment, observed that the facts upon which the Grand Jury

must ultimately base its determination are "highly unusual" and "complex";

that the April 19, 1995, bombing of the Murrah Building was an act of

unprecedented terrorism resulting in a massive criminal investigation; that

the criminal investigation has required the government to follow up more

than 100,000 phone calls, analyze thousands of business records, and

interview hundreds of witnesses and potential witnesses; and that there

exists a huge volume of evidentiary material subject to a myriad of chemical

and physical tests. See D.E. 107 (United States v. McVeigh, No. M-95-98-H,

Order filed June 12, 1995 at 5).

Three of the most rarely granted defense requests in criminal litigation

were granted in this case because of its unique nature. This Court, in

considering a Petiton [sic] for Writ of Mandamus, removed the then-presidng

[sic] Judge assigned to this case in the initial stages. See Nichols v.

Alley, 71 F. 3d 347 (10th Cir. 1995). As a result of this Court's decision,

the Chief Judge of this Circuit assigned Chief Judge Richard P. Matsch to

preside over this litigation. See D.E. 711. After giving careful

consideration to the facts of this case, Chief Judge Matsch changed the

venue of the prosecution to Denver, Colorado (918 F. Supp. 1467 (D. Colo.

1996)), and subsequently granted the defendants' motions for a severance

(169 F.R.D. 362 (D. Colo. 1996)). See D.E. 984; 2376. Timothy McVeigh will

be tried beginning March 31, 1997. D.E. 3429

B. The Response of the Federal Government.

The prosecution in this case has at its disposal the resources of every

federal, state, and local agency in the United States to interrogate,

arrest, prosecute and convict those the Grand Jury charges with the bombing

of the Alfred P. Murrah Building. The President of the United States pledged

to send "the world's finest investigators to solve these murders." See D.E.

1079 at 10. Within hours of the President's statement, the Attorney General

of the United States emphatically stated that "[t]he FBI and the law

enforcement community will pursue every lead and use every possible resource

to bring these people responsible to justice." Id. Innumerable federal

agencies have participated in the investigation of this case. The day after

the bombing the New York Times reported as follows:

From offices and bases around the country, government

aircraft carried to Oklahoma City an array of federal

law enforcement officials, emergency management personnel

and military forces, an operation that constituted one

of the vastest[sic] responses to a crime in American


A 24 hour FBI command center with 400 telephones was

established in Oklahoma to coordinate the work of

explosives teams, bomb technicians and portable scientific

gear used to analyze chemical residues.

D.E. 1079 at 10-11.

According to a May 31, 1995, "Nightline" broadcast interview of former FBI

Assistant Director Buck Revell, ". . . when you have an event of [the

Oklahoma City bombing's] magnitude, you have to cast a very broad net." D.E.

1079 at 11. The President of the United States "dispatched a small army of

federal investigators to Oklahoma and pledged a relentless hunt for the

killers." Id.

1. The Government's Immediate Response to the Bombing.

a. Mobilization.

The government began its search for suspects within minutes after the

gravity of the Oklahoma City bombing became apparent. The White House

Situation Room, the Federal Bureau of Investigation's (FBI) Command Center,

the Central Intelligence Agency's (CIA) Watch Office, and other agencies'

nerve centers undoubtedly monitored media reporting of the bombing and

established communications with personnel located at or near the scene in

Oklahoma City. D.E. 1079 at 2. Government agencies throughout the United

States were alerted to the potential for similar attacks.

At the White House, a "crisis team" was convened in order to coordinate the

intensive investigation. Id. at 13. This team, under the direction of the

Justice Department, consisted of personnel from the Bureau of Alcohol,

Tobacco and Firearms, the Federal Bureau of Investigation, the Secret

Service, the Central Intelligence Agency, the National Security Agency, and

members of the National Security Council. According to media reports, this

crisis team was formed in the wake of the blast and met on Wednesday, April

19, 1995, via teleconference in Washington and convened again on Thursday

morning at the White House. Id.

CIA spokesman David Christian has verified to the media that the agency was

involved in the Murrah bombing investigation. Id In addition, the

investigative machinery of U.S. military intelligence agencies has been

utilized in this criminal case. One media source reported that "the nation's

intelligence community, the CIA and defense intelligence officials, also

will contribute information, and send their own agents overseas to work

digging up leads, according to the law enforcement experts." Id.

Civilian and military intelligence agencies were placed on the highest alert

here in the United States and similar warnings of impending attacks were

forwarded to United States installations overseas. For example, The CIA's

Directorate of Operations (DO) transmitted to stations and bases worldwide a

high precedence cable instructing agency officers to query sources for

information about the attack. The FBI's Counterterrorism Center issued a

directive to all CIA stations to search their international sources for

possible leads among foreign terrorist groups. Id. at 14.

Officers in the CIA Directorate's six overseas divisions immediately began

arranging meetings and conducting debriefing sessions. The domestic arm of

the DO - the National Resources (NR) Division - also began combing contacts

for leads concerning the bombing. (NR Division's procedures for obtaining

information are described in United States v. Reward, 889 F. 2d 836 (9th

Cir. 1989), although NR is described therein as the Domestic Collection (DC)


The CIA's sources include individuals holding positions in governments,

military services, corporations, universities, political parties, and

terrorist groups. Id. The agency's officers utilized both unilateral assets

- those who are cooperating with the United States unbeknownst to their

superiors; and liaison relationships - formal contacts between the CIA and

foreign law enforcement, intelligence, and security agencies. Military

Intelligence and the CIA similarly obtain information through the use of

ostensibly private or commercial entities that are, in fact, intelligence

platforms. Through liaison relationships, the government is also able to

avail itself of the multitude of sources operated by foreign governments.

See infra for description of assistance from Israel.

b. Evidence From Public Sources of Government Use of Intelligence Networks

With Foreign Nations in the Investigation of the Alfred P. Murrah Building


In its annual report, the State Department's Office of the Coordinator for

Counterterrorism reports that the Clinton Administration is "deeply engaged

in cooperation with other governments in an international effort to combat

terrorism[.]" D.E. 1079 at 15. Such cooperation includes an "active network

of cooperative relations with counterparts in scores of friendly countries"

involving United States intelligence and law enforcement agencies. Id. The

State Department's Office of the Coordinator for Counterterrorism conducts

consultations on counterterrorism with many other governments including G-7

nations and the European Union. Additionally, there are now 11 treaties

and conventions that commit signatories to combat various terrorist crimes. Id.

United States government agencies, including the CIA and FBI, maintain

liaison relationships with many countries. The Supreme Court has recognized

the existence of these relationships, as well as the United States

government's receipt of information through such contacts. See Snepp v.

United States, 444 U. S. 507, 512 (1980) (''[T]he CIA obtains information

from the intelligence agencies of unfriendly nations and from agents

operating in foreign countries"). The United States derives substantial

information from these associations. These liaison relations would have

provided numerous reports concerning the Oklahoma City bombing, possible

motives for the bombing, and possible suspects other than Timothy McVeigh.



In an interview on CNN on April 20, 1995, White House Chief of Staff Leon

Panetta confirmed that the Justice Department was reviewing all of the

intelligence network data in order to determine whether there are any leads.

D.E. 1079 at 15. Mr. Panetta stated that the investigation into the bombing

clearly involves looking at communications, both within the United States

and outside the United States. Id. Also, CNN's State Department

correspondent Steve Hurst stated that there was bound to be a volume of

cable traffic coming into the State Department and into the CIA from

stations abroad concerning information about the bombing. Presumably, Mr.

Hurst is proficient and knowledgeable in the operations of the State

Department, and his observations are supported by other media accounts

establishing an FBI directive to CIA stations to search its international

sources for possible leads among foreign terrorist groups. Id. at 16.

c. CIA and NSA Investigation Protocol.

In the immediate aftermath of the bombing, the CIA searched its databases

for candidates who might have the means and motive to perpetrate the

bombing. The databases were also used to verity the bona fides of sources

providing leads. The CIA's stations and bases submitted numerous "name

traces" on individuals as a result of the bombing investigation. These

traces were requests for information on individuals, including those

suspected of having knowledge of the bombing. Technical assets, such as

global, regional, and local communication intercepts and reconnaissance

satellites, were also used to obtain or verify information about the

Oklahoma City bombing.[5]



[5] On May 10, 1995, the government, as part of its investigation of the

bombing of the Alfred P. Murrah Building, enlisted the aid of the 1st

Infantry Division at Fort Riley, Kansas, in obtaining Global Positioning

System (GPS) readings for twenty (20) geographical sites. These readings

were taken by the "Magellan GPS Nav 1000." The readings were taken "for

possible satellite photograph requests[.]" D.E. 1079 at 16 n.7 (Exhibit "D").


The CIA's Counterterrorism Center was the focal point for all reports. The

information gathered was then sent to government analysts and other official

consumers, including the Justice Department. Id. at 16-17.

Also in response to the attack the National Security Agency (NSA) promptly

supplemented their existing "watch list" for domestic terrorist threats with

specific terms related to the Oklahoma City bombing, potential suspects and

suspect organizations. Id. at 17. A watch list enables NSA listening posts

to key on specific words spoken in their global net of intercepted oral

communications. The National Reconnaissance Office (NRO) was also requested

to assist in the investigation of the bombing by providing satellite

photography. Id.

The NSA's sole reason for being is to intercept electronic messages

worldwide and analyze these interceptions for useful intelligence and

national security information. As reported by the Senate Select Committee to

Study Government Operations with Respect to Intelligence Activities:

[Tlhe National Security Agency was created by Executive Order in 1952 to

conduct 'signals intelligence' including the interception and analysis of

messages transmitted by electronic means, such as telephone calls and

telegrams. D.E. 1079 at 17.

Lewis Allen, a General in the United States Air Force and then-Director of

the National Security Agency, testified before the Committee that the

"mission of the NSA was directed to foreign intelligence obtained from

foreign electrical communications[.]" Id.

But in delineating the scope of the NSA's mission, the Committee pointed out

that the NSA has interpreted "foreign communications" to include

communication where one terminal is outside the United States. Under this

interpretation, the NSA has for many years intercepted communications

between the United States and a foreign country, even though the sender or

receiver was American. Thus, the full range of the NSA's sphere of

interceptions is virtually unlimited and unchecked. Id. at 17-18.

Yet, the NSA is allowed specifically by Executive Order to assist domestic

law enforcement authorities and to participate in law enforcement activities

to investigate or prevent clandestine intelligence activities by foreign

powers, or international terrorists or narcotics activities. Id. at 18

(Executive Order 12333). With respect to methods of interception utilized by

the NSA, a Senate Select Committee has reported the following:

The use of lists of words, including individual names,

subjects, locations, etc., has long been one of the

methods used to sort out information of foreign

intelligence value from that which is not of interest.

In the past, such lists have been referred to

occasionally as watch lists, because the lists

were used as an aid to watch for foreign activity

of reportable intelligence interest. However, these

lists generally did not contain names of U.S. citizens

or organizations. The activity in question is one in

which U.S. names were used systematically as a basis

for selecting messages, including some between U.S.

citizens, when one of the communicants was at a

foreign location.

D.E. 1079 at 18.

The system and the procedure for selection and interception has been

described in the Select Committee report on the handling of the "watch lists":

The information produced by the watch list activity

was, with one exception, entirely a byproduct of our

foreign intelligence mission. All collection was

conducted against international communications with

at least one terminal in a foreign country, and for

purposes unrelated to the watch list activity. That

is, the communications were obtained, for example,

by monitoring communications to and from Hanoi.

The watch list activity specifically consisted of

scanning international communications already

intercepted for other purposes to derive information

which met watch list requirements. This scanning

was accomplished by using the entries provided to NSA

as selection criteria. Once selected, the messages

were analyzed to determine if the information met

those requesting agencies' requirements associated

with the watch lists. If the message met the

requirements, the information therein was reported

to the requested agency in writing.

D.E. 1079 at 18-19.

Significantly, the NSA's interception of international communications

sometimes includes, either incidently [sic] or accidently [sic],

communications between two American citizens if one of them happens to be

abroad. Id. at 19.

Thus, within hours of the bombing of the Murrah Building, the NSA's

supplemented watch lists would have enabled the agency to pluck a huge

amount of data from its incredible volume of global electronic

interceptions. The result, within this agency alone, would have been a

massive amount of relevant information concerning the bombing, none of which

has been given to the defense in this case.

Procedures similar to the CIA's, NSA's, and NRO's for gathering information

on the bombing were employed by foreign and domestic personnel of the

Department of Justice and its enforcement agencies (the FBI, the Drug

Enforcement Administration (DEA), the Immigration and Naturalization Service

(INS), and the U.S. Marshals); the Department of State's Bureau of

Diplomatic Security (DS); the CIA's Office of Security (OS); the Department

of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF, Customs

Service (USCS)), Internal Revenue Service (IRS), and Secret Service (USSS);

the Postal Service's Postal Inspectors; The Department of Defense's Armed

Services, Defense Intelligence Agency (DIA), Naval Criminal Investigative

Service, and the Defense Investigative Service, the General Services

Administration's Federal Protective Service; the Department of

Transportation's Coast Guard; and the Federal Aviation Administration (FAA).

Other agencies, bureaus, and departments participated in the gathering of

information as well. Personnel at all levels, suspecting the bombing to be a

large scale terrorist attack resulting in numerous deaths, immediately

mobilized all resources at the government's disposal. The result was a

mammoth investigation without political or geographic limits. Id. at 19-20.

2. Evidence of the International Scope of the Investigation and the

Involvement of Organs of State Intelligence in Several U.S. Domestic Bombing

Cases Including the Alfred P. Murrah Building.

The criminal investigation of this case included the use of the civilian and

military branches of government; law enforcement, intelligence, and security

agencies; foreign and domestic personnel and technical resources; and

similar assets of other nations. The international scope of the

investigation of this case is underscored by comments made by the Attorney

General at an April 20, 1995, press conference:

[Reporter]: The government of Israel has offered its

help, because it has a vast experience with this sort

of thing. Do you know if we are accepting that help?

[Attorney General Reno]: We will, of course, rely

on any additional resource that can possibly be

involved and be utilized appropriately in bringing

these people to justice.

D.E. 1079 at 20.

In a 1981 Executive Order, President Reagan authorized agencies within the

intelligence community to "participate in law enforcement activities to

investigate or prevent clandestine intelligence activities by foreign powers

or international terrorist or narcotics activities[.]" Id. at 21 (Executive

Order 12333, December 4, 1981). The intelligence community is also

authorized to provide specialized equipment, technical knowledge or

assistance of expert personnel for use by any department or agency or, when

lives are in danger, to support local enforcement agencies. Thus, the Chief

Executive of this country has authorized specifically the use of instruments

of state intelligence to aid law enforcement agencies in investigating

terrorist attacks.

The United States Department of State has acknowledged the federal

government's use of intelligence organizations in response to terrorism: "A

central element in the effective international effort to prevent and/or to

bring about to justice those responsible for such attacks is the effective

exchange of intelligence. The United States intelligence community is

cooperating closely and effectively with other services as part of the

international effort to identify those responsible[.]" Id. D.E. 1079 at 21.

In fact, a report issued from the State Department's Office of the

Coordinator for Counterterrorism states:

Because terrorism is a global problem, the Clinton

administration is deeply engaged in cooperation with other

governments in an international effort to combat

terrorism: U.S. intelligence and law enforcement

agencies have an active network of cooperative relations

with counterparts in scores of friendly countries.

D.E. 1079 at 21-22.

Such cooperative efforts have been further chronicled in the mainstream

press: "In the bombing of the World Trade Center, in February 1993, the FBI,

CIA and other agencies scoured the globe for leads and found many," Brian

Duffy, et al., Extremism In America, U.S. New and World Report, May 8, 1995

at 30, and in the May 7, 1995, San Diego Union tribune article regarding the

investigation into the car-bombing of a United States Navy captain - "[T]he

CIA, the National Security Administration [sic], the Bureau of Alcohol,

Tobacco and Firearms, the Naval Criminal Investigative Service and local

law-enforcement agencies were involved." See D.E. 1079 at 22.

As previously noted, after the bombing the initial "crisis team" assembled

in the White House Situation Room consisted of personnel from the BATF, the

FBI, the Secret Service, the National Security Agency, the Central

Intelligence Agency, and members of the National Security Council. Id. at

22. Military officials from the defense intelligence agencies have

participated in this investigation as well. Finally, the White House Chief

of Staff, Leon Panetta, confirmed that the Justice Department conducted a

review of data gathered from intelligence networks, including communications

from both within the United States and outside the United States. Id.

Thus, from its very inception, the investigation launched by the federal

government in this case has utilized the resources of the FBI and other

domestic law enforcement agencies in tandem with the intelligence gathering

entities of the federal government with the imprimatur of an executive order

allowing such a symbiotic relationship. In the first 48 hours after the

bombing, the domestic law enforcement and intelligence agencies of the

federal government were mobilized and directed toward foreign terrorists

(concentrating on those from the Middle East) with no limit on available

manpower, assets, technology, and without regard to geographical borders.

3. The Investigative Focus Upon Foreign Terrorists.

News reports conclusively establish that the FBI's early analysis and the

judgment of other counterterrorism experts pointed towards foreign

responsibility for the Oklahoma City bombing. See D.E. 1079 at 23. CBS News

reported shortly after the bombing that the FBI had received claims of

responsibility for the attack from at least eight organizations. Seven of

the claimants were thought to have Middle Eastern connections. D.E. 1079 at

23. Steven Emerson, an expert on Islamic Jihad said: "There is no smoking

gun. But the modus operandi and circumstantial evidence leads in the

direction of Islamic Terrorism." The government received calls from six

people saying that they were from different Muslim sects and asserting that

they were responsible for the bombing. Id. at 23-24.

On April 20, 1995, the New York Times reported that federal authorities

opened an intensive hunt for the perpetrators of the bombing and "proceeded

on the theory that the bombing was a terrorist attack against the

government, law enforcement officials said." Id. at 24. The immediate

speculation according to some experts, focused on the possibility that the

attack had been the work of Islamic militants, similar to those responsible

for the World Trade Center bombing in February of 1993. D.E. 1079 at 24.

John Magaw, director of the Bureau of Alcohol, Tobacco and Firearms, when

asked whether his agency suspected terrorists, told CNN: "I think any time

you have this kind of damage, this kind of explosion, you have to look there

first." The FBI even went so far as to approach the Department of Defense

about including Pentagon Arabic speakers in the investigative team. Former

FBI Assistant Director in Charge of Investigation and Counterterrorism

Expert Oliver "Buck" Revell, was quoted as saying, "I think what we've got

is a bona fide terrorist attack." Mr. Revell went on to state, "I think it's

most likely a Middle East terrorist. I think the modus operandi is similar.

They have used this approach." D.E. 1079 at 24.

FBI officials in Washington, speaking anonymously, suggested strongly the

investigations were focusing on Middle East terrorists . . . among the leads

being investigated was a television report of three males of Middle East

origin who rented a brown Chevrolet pickup at the Dallas-Fort Worth

International Airport. Witnesses have reported seeing three men driving away

from the blast area in a similar pickup. D.E. 1079 at 25.

An FBI communique that was circulated Wednesday suggested that the attack

was carried out by the Islamic Jihad, an Iranian-backed Islamic militant

group. The communique suggested the attack was made in retaliation for the

prosecution of Muslim fundamentalists in the bombing of the World Trade

Center in February, 1993, said the source, a non-government security

professional. "We are currently inclined to suspect the Islamic Jihad as the

likely group," the FBI notice said. See D.E. 1079 at 25.

The FBI's suspicion of an Islamic Jihad connection would have been further

reinforced by a sobering fact: Oklahoma City is probably considered one of

the largest centers of Islamic radical activity outside the Middle East. Id.

at 26. The extensive loss of life and the targeting of a federal facility

motivated law enforcement, the military, and U.S. intelligence agencies to

engage in the full range of overt and covert resources located throughout

the world. Their mission was two-fold: stop other possible attacks, and

identify the individuals and groups responsible for the Murrah Building bombing.

The government's far-reaching efforts in pursuit of Middle Eastern suspects

in this case have become part of the public record. An affidavit of FBI

Special Agent Henry C. Gibbons, filed in United States v. Abraham Abdallah

Ahmed, No. M-95-94-H, W.D. Okla., April 20, 1995, strongly suggests

intelligence assets are being used in the bombing investigation. See D.E.

1079 (Exhibit "E"). Gibbons' affidavit explains how a Jordanian American

suspect's luggage was searched in Italy, and how the suspect was detained by

British authorities and then forcibly returned to the United States. Id.

That a suspect of Middle Eastern origin was promptly apprehended confirmed

the widely-held suspicion that a foreign terrorist group would be implicated

in the bombing. According to the New York Times, Abraham Ahmed as "caught in

the dragnet that spread around the world after the bombing." The newspaper

went on to state:

In his case, he was first singled out for attention

in accordance with a general profile of possible

suspects, including young men traveling alone to

destinations like the Middle East. The profile was

issued by the FBI to police agencies and airport

authorities throughout the world.

Mr. Ahmed lives in Oklahoma. He checked into O'Hare

International Airport in Chicago on Wednesday night for

a flight to Rome, with connections for a flight to

Amman, Jordan. In addition to fitting the suspect

profile, he was dressed in a jogging suit similar to

one that a witness in Oklahoma City had reported

seeing worn by a man at the scene of the explosion.

D.E.1079 at 27. The initial focus on foreign terrorist connections

undeniably placed the intelligence community at the forefront of the

investigatory efforts, since United States intelligence assets exist solely

to protect against such foreign threats.

Nor is the government's focus limited to the Middle East. The Sunday Times

in London reported on February 4, 1996, that senior FBI sources have

confirmed that the Bureau was "also pursuing inquiries into a possible

neo-Nazi link between the Oklahoma City bombers and British and German

extremists." D.E. 1079 at 27. Because of Defendant Terry Nichols' ties to

the Philippines, within days of the bombing U.S. and Philippine officials

began reconstructing his movements there.

An American Embassy legal attache interviewed Marife Nichols' father,

Eduardo Torres, and showed him sketches of the two original bombing

suspects. Id. at 27-28. Philippine intelligence agents briefly placed Mr.

Torres under surveillance to make sure he was not involved with terrorism.

Id. Clearly then, the tentacles of the federal government have reached out

worldwide in the investigation of the bombing of the Murrah building.

Compelled by the urgency of a grievous attack on the United States

government itself, resources ordinarily dedicated to military and

intelligence applications were brought to bear on a domestic criminal

investigation. By the government's commitment of such resources to a

criminal investigation, the Defendant becomes entitled to the product of

these resources, so that they may be as fairly and justly applied to his

defense as they are to his prosecution.




On April 21, 1995, federal law enforcement officials became unshakably

focused upon Timothy McVeigh who was being held in the Noble County Jail in

Perry, Oklahoma, on various state misdemeanor charges. See D.E. 1457 at 4.

Mr. McVeigh had been pulled over by an Oklahoma Highway Patrolman, Charles

Hanger, on Interstate Highway 35 on the morning of April 19, 1995. McVeigh

was driving a 1977 pale yellow Mercury Marquis, and was stopped by Trooper

Hanger because the car McVeigh was driving displayed no license plate.

McVeigh told Trooper Hanger that he was returning from Arkansas.[6]



[6] Evidence held by the government and Defendant clearly shows Mr. McVeigh

traveled to and from Arkansas on a frequent basis.


Hanger arrested McVeigh on the basis of the traffic violation and the state

misdemeanor charge of carrying a weapon. McVeigh's yellow Mercury was left

on the side of the highway and was not impounded.

Between April 19, 1995, and April 21, 1995, federal law enforcement

officials traced a Vehicle Identification Number appearing upon the axle of

the truck believed to have carried the bomb to a Ryder rental truck

dealership in Junction City, Kansas. The FBI prepared a composite drawing of

"unidentified subject #1" based upon descriptions provided by witnesses at

the Ryder rental dealership. By showing the composite drawing to employees

at various motels in Junction City, Kansas, the FBI "determined" that the

drawing resembled a man named Timothy McVeigh that had been a guest at the

Dreamland Motel in Junction City from April 14-18, 1995. A records check

then revealed that a man named Timothy McVeigh was in custody in the Noble

County Jail in Perry, Oklahoma, facing state misdemeanor charges.

The FBI, knowing their suspect was in custody at a small county courthouse

in Oklahoma, proceeded to orchestrate what is now commonly referred to as

the "perp walk" in which a criminal suspect is led away from confinement in

shackles by law enforcement personnel for the media and all to see. The FBI

was not disappointed. See D.E. 2825 at 7. Mr. McVeigh was detained in the

courthouse while the world media gathered and his walkout was timed for the

evening network news broadcast. With the nation, and indeed much of the

civilized world watching, Timothy McVeigh, wearing a bright orange prison

jumpsuit and no protective vest, shackled at the wrists and ankles, and

wearing a militarystyle haircut and a "thousand yard" stare, was paraded

before a mob of angry citizens, many of whom shouted repeatedly, "baby

killer, baby killer" at him. This was how the Petitioner was transferred to

federal custody.[7]



[7] The government claims the delay was caused by the wait for a Federal

Warrant and a State Judge who granted Mr. McVeigh the opportunity to confer

with a local attorney who had repeatedly been blocked from seeing the

Defendant by the local Assistant District Attorney. The attorney filed a

Motion for Habeas Corpus to produce Mr. McVeigh for an interview which was

granted. Thus, the delay was not caused by the Judge or the attorney, but

the State prosecutor. A Federal John Doe 1 Warrant was already in place.





On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial

District of Oklahoma returned an eleven count Indictment accusing Timothy

James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass

destruction, actual use of a weapon of mass destruction, destruction by

explosive, and eight counts of first degree murder.

(Indictment in CR95-110, filed August 10, 1995, no docket number assigned).

The Indictment alleges that McVeigh and Nichols constructed a truck bomb and

on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred

P. Murrah Federal Building during regular business and day-care hours. The

Indictment then lists the names, spread out over six typewritten pages, of

the persons present at the Alfred P. Murrah Federal Building on the morning

of April 19, 1995, and who were killed as the result of the explosion.

The Grand Jury found evidence that Timothy McVeigh and Terry Nichols

conspired and agreed together with "others unknown to the Grand Jury" to use

a truck bomb against the federal government, and specifically against the

Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma

City, Oklahoma, which resulted in the destruction of the building, grevious

[sic] bodily injury to scores of persons, and the death of 168 persons. See

Indictment at 1-2. This Indictment has never been withdrawn or modified.

Thus, the Grant Jury's allegation on the eve of trial is that this crime was

committed and aided by "others unknown." By refusing to provide the

requested discovery material, the government is attempting to prevent the

Petitioner from learning the identity of what it calls "others unknown" but

which the petitioner characterizes as "the unknown others."[8]



[8] The government has claimed below, and will undoubtedly assert here, that

it has provided "unprecedented discovery" and gone far beyond what the rules

and case law require. That claim is hollow and empty. Chief Judge David

Russell of the Western Judicial District, before the return of the

Indictment, attempted to schedule a discovery conference in order to

facilitate the orderly flow of discovery, but the government refused to

attend. The defense was willing to attend. Upon the return of the

Indictment, the standing orders of the Federal Judges in the Western

Judicial District, where the case was pending, were blithely ignored. The

dear mandate of former Chief Judge Daugherty's orders, which are precedent

in the Western District and found at United States v. Penix, 516 30 F. Supp.

248, 255 (W.D. Okla. 1981) were ignored.


During the period of time that motions were pending for recusal of Judge

Alley, Judge Alley refused to entertain or rule on any discovery requests by

the Defendant. Thus, the government had an almost 4-1/2 month period after

the return of the Indictment on August 10, 1995, in which it ignored

existing judicial rules and took advantage of Judge Alley's statesmanlike

decision not to rule on matters before him while motions for his recusal

were pending. The government provided a microscopic amount of discovery

consisting primarily of "statements of the Defendant" as required by the

Federal Rules and access to some physical evidence.

In early January 1996, the government furnished Defendant's counsel all of

the 302's then in existence concerning the following witnesses: Michael and

Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom

Kessenger, and one Oklahoma City witness, Daina Bradley. However, before

furnishing this information, the prosecution, in a letter to the defense

claimed that the prosecutors had personally reviewed the 302's and that

nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was

fantastic and incredible on its face and totally incorrect. Each of the

statements contained highly exculpatory Brady material and not just Giglio

material. The government then proposed an oral reciprocal discovery

agreement with the Defendant in which

witness statements would be exchanged except for those witness statements

taken by lawyers, even though FBI agents or defense investigators might be


The government also failed to provide Grand Jury testimony until prodded by

the district court which directed the government to produce, first, the

Grand Jury testimony of Michael and Lori Fortier. Finally, the government

turned over Grand Jury testimony approximately four months before trial.

Massive litigation and hearings were required before the government turned

over all FBI documents (or at least it represents that it has turned all of

them over) relating to the Federal Bureau of Investigation Laboratory when

the government prosecutors knew that serious allegations were being made and

that an investigation was being conducted by the Inspector General which

later validated a significant number of the allegations with respect to the

handling, collection, analysis of evidence from the bomb site. The

government also delayed producing 302's, in some cases, more than a year

after the 302 had been typed. The government's claims thus that it has

produced unprecedented discovery are specious. It can be summarized as

follows: The government gave the Defendant 100% of that which is irrelevant

and withheld 95% of that which is relevant until, either by Court order or

the threat of judicial action, it grudgingly began to flow the information

to the Defendant, more than a year after the return of the Indictment. These

assertions by the Defendant are well documented in the trial record below.

See, e.g., D.E. 1310;1918.


The theory of the prosecution in this case, not the Grand Jury's theory, is

that the two named Defendants constructed a simple device capable of

toppling a nine-story building at a public fishing lake and that one of them

transported this device over two hundred miles without blowing himself up.

That is the heart of the prosecution's case. Any evidence concerning the

participation of others, the complexity of the device, or foreign

involvement takes away the heart of the government's case and there is

therefore an institutional interest on the part of the government in keeping

such evidence shielded from the defense and the public. But unfortunately

for the government such evidence exists. One of the core allegations in the

Indictment is that Timothy McVeigh rented a Ryder truck at Elliott's Body

Shop in Junction City, Kansas. The evidence, however, negates McVeigh's

presence and suggests instead the presence of two other suspects.

A. Elliot's Body Shop.

The government's theory is that Timothy McVeigh rented a Ryder truck from

Elliott's Body Shop using the name "Robert Kling." However, three employees

of Elliott's Body Shop each informed the FBI that "Kling" was accompanied by

another man. Eldon Elliott met Robert Kling on Saturday, April 15, 1995, at

approximately 8:45 a.m. See D.E. 1081 Exhibit "D." On this day, Kling was by

himself, gave Elliott $281 to rent the truck, and told Elliott that he would

pick the truck up on Monday at about 4:00 p.m. When Kling came into Elliot's

on Monday there was, according to Elliott, a second individual with him. Id.

at 2. Elliott described the person with Kling as a white male, 5'7" to 5'8",

and wearing a white cap with blue stripes that headed front to back. He

described Kling as a white male, 5'10" to 5'11", 180 to 185 lbs., with a

medium build. Id.

Vicki Beemer, then the bookkeeper and counter clerk at Elliott's, told the

FBI on the day of the bombing that a contract to rent a truck was executed

on Monday, April 17, 1995 with Robert Kling. Id. (Exhibit "A"). She verified

that Kling had reserved the truck and prepaid the contract with cash. Beemer

told the FBI that she recalled a second person accompanying Kling but that

she had no specific recollection of that individual. She stated that while

she processed the contract another employee named Tom Kessenger was sitting

in the office watching. Id.

Kessenger initially told the FBI that two males came into Elliott's and

initiated a conversation with Vicki Beemer concerning a rental truck. See

D.E. 3240 at 7, 10 (Hearing on Motions to Suppress Eyewitness

Identification--Volume I, February 18, 1997). Kessenger stated that Robert

Kling was accompanied by the individual that later became known worldwide as

John Doe 2. Id. at 10. He described this person as wearing a black t-shirt,

jeans, and a ball cap colored Royal blue in the front and white in the back.

Id. at 11. He also stated that John Doe 2 had a tattoo on his upper left

arm. However, Kessinger has testified that a year and half after he first

saw John Doe 2 at Elliott's Body Shop, the government convinced him that he

had made a mistake and identified another person who rented a truck on April

18, 1995. Id. at 15-16. He described Kling as 5'10", weighing 175 to 185

lbs., green or brown eyes, and with a rough complexion or acne. Id. at 9;

D.E. 1458 (Exhibit "F)."

Although Elliott and Kessenger may have been describing the same person they

saw and knew as Robert Kling--it is clear that neither was describing

Timothy McVeigh. At the time that McVeigh was booked into the Noble County

Jail on April 21, 1995, he weighed 160 lbs., stood 6'2", his eyes were blue,

and his complexion was clear. See D.E. 1457 at 6.

In addition, the government and defense both have, and it has been

referenced in open court proceedings, a video tape of the accused at

McDonald's on I-70 in Junction City, a mile and a third away from Elliott's

Body Shop. The accused is seen at McDonald's between 3:55 and 4:00 p.m.

wearing clothes completely different from those ascribed to Robert Kling.

The accused is supposed to have traveled the 1.3 miles on foot, in less than

20 minutes, and somehow or the other along the road, changed clothes.

B. Oklahoma City Eyewitness.

The government has announced that it will not call a single identification

witness from Oklahoma City. The government has declined to do so for a very

good reason--all of them undercut the government's theory of the case;

perhaps none more so than the dramatic story of a young woman who was

trapped in the rubble of the Murrah Building, had to have a leg amputated,

and lost her mother and two children in the bombing. Her sister was also

injured but survived. See D.E. 2191 (Exhibit "Y"). She was first interviewed

by the FBI on May 3, 1995, at the hospital and then again on May 21, 1995.

She was also interviewed by the Defendant and several reporters. Her story

is consistent in all accounts. She stated that she left her home in Oklahoma

City at approximately 7:15

a.m. on the morning of April 19, 1995, to go to the Social Security Office.

She went with her mother, two children, and her sister. Id.

She recalled standing in the lobby of the Social Security Office in the

Murrah Building near a large window facing Fifth Street when she looked out

the lobby window and saw a Ryder truck pull into a parking place in front of

the building between two cars. After the truck parked, she then observed an

individual exit the passenger side of the Ryder truck and start walking

away. She stated that she observed a side view of the person and described

him as an olive-skinned (he looked also like he was tanned), white male,

wearing a baseball cap with black, clean cut hair, with a slim build and

also wearing jeans and a jacket. She observed the man walking very fast,

heading west, toward Harvey

Street. Id.

The next thing she remembered was feeling what she described as electricity

running through her body and then falling into rocks. While she was in the

hospital convalescing from her injuries, the FBI showed her a sketch

consisting of frontal view of a man wearing a hat--John Doe 2. She told the

FBI that the unknown male that she saw looked similar to the man in the

sketch. D.E. 2191 (Exhibit "Y" at 2).

C. Jeff Davis.

The government contends that "Robert Kling," the same person who rented the

Ryder truck from Elliott's Body Shop and who is alleged to have been Timothy

McVeigh, placed an order for Chinese food at the Hunam Palace Restaurant in

Junction City, Kansas, on April 15, 1995. D.E. 2166 at 13. The telephone

call to the restaurant allegedly originated from room # 25 at the Dreamland

Motel which was the room allegedly occupied by a guest who claimed to be

Timothy James McVeigh.

The restaurtant [sic] dispatched a delivery driver, Jeff Davis, to deliver

the order to room # 25 at the Dreamland Motel. Davis has been interviewed

several times by the FBI and has consistently maintained that the person he

delivered the food to was not Timothy McVeigh. See D.E. 2482 at 10, Exhibit

"P." Davis has described the person to whom he delivered the food order as

having hair that was "unkept." Timothy McVeigh, a decorated Gulf War

veteran, keeps his hair short and neat. Davis recalled that the person at

the Dreamland had a very slight overbite. Timothy McVeigh does not have an

overbite. Davis recalled that the person at the Dreamland had a regional

accent, possibly from Oklahoma, Kansas or Missouri. Timothy McVeigh was born

and raised in New York. Davis has stated to the FBI point blank that the

person he saw and heard at the Dreamland Motel four days before the bombing

of the Murrah Building was not Timothy McVeigh. In addition, although the

government contends that Timothy McVeigh occupied room # 25 at the Dreamland

Motel, his fingerprints were not found in the room. D.E. 2482 (Exhibit "GG").

In addition, there is evidence that a Ryder truck was seen at the Dreamland

Motel-only it was seen on Easter Sunday, April 16, 1995, by at least four

witnesses, Eric and Lea McGown, David King, and King's mother--one day prior

to Monday, April 17, 1995, the date the government alleges that Timothy

McVeigh and John Doe 2, using the name "Robert Kling," rented a Ryder truck

from Elliott's Body Shop. D.E. 2191 at 36-37. The date is indelible in the

memory of Lea McGown, the manager of the Dreamland Motel, because she leaves

her hotel only twice a year--at Christmas and Easter. April 16, 1995 was

Easter Sunday. Id. None of the individuals have been interviewed by the

Defendant, but several have been interviewed by the media and their

statements are a matter of public record.

D. Frederick Schlender.

The government alleges that Terry Nichols and Timothy McVeigh purchased two

tons of ammonium nitrate fertilizer from a farm cooperative in McPherson,

Kansas. See Indictment at 3, 4. The government's theory is that the 4,000

lbs. of ammonium nitrate purchased at the McPherson Co-Op was used as a

component of the bomb that destroyed the Murrah Building. See D.E. 2166 at 9

(Hersely Grand Jury at 45). Two separate purchases are alleged--one on

September 30, 1994 and another on October 18, 1994. See Indictment at 34.

Frederick Schlender was employed at the McPherson Co-Op during the time of

the purchases of the ammonium nitrate. See F. Schlender Grand Jury

Transcripts at 6-9. No employee at the Co-Op is able to describe the

individuals who made the September 30, 1994, purchase. In his interviews

with the FBI and in his testimony in open court, Schlender was able to

recall the two men who made the purchase on October 18, 1994, as well as the

vehicle used to transport the ammonuim [sic] nitrate. D.E. 3263 at 606 07.

He recalled that the purchase was made by two men driving a pickup truck

with a red trailer hitched on the back. Although he gave a description of

the pickup truck that was inconsistent with the truck owned at the time by

Terry Nichols, and neither Defendant owned or used a red trailer, he was

able to recall that the driver of the truck may have been Terry Nichols,

but stated unequivocally that neither the driver nor the passenger was

Timothy McVeigh. D.E. 3263 at 613, 659. The witness testified to the same

facts at an open court hearing.

The government claims to have a receipt with Tim McVeigh's fingerprints on

it. This receipt allegedly is for the purchase of ammonium nitrate. Leaving

aside the question that it is highly debated whether the bomb in fact was

made of ammonium nitrate, since clearly Mr. McVeigh was not present when the

ammonium nitrate was purchased, it is possible it was purchased by Terry

Nichols for innocent reasons (the government has evidence that Terry Nichols

packaged ammonium nitrate in small bags and sold them at gun shows) and that

Mr. McVeigh, an acknowledged friend of Mr. Nichols, may have in fact

innocently touched or handled the receipt.

E. Legal Significance of the Existence of "Others Unknown."

Even if, for purposes of this Petition, one assumes that Terry Nichols was

involved in the planning and/or commission of this crime, there are possibly

as many as four others still unknown. The identities of these persons may be

the difference between a conviction and an acquittal in this case, are

literally a matter of life and death, are not explained by the government,

and the defense believes that, in light of the massive federal resources

devoted to this case by the government, the government possesses information

which would shed light on the identities of these persons. But absent a

direct court order compelling the government and its agencies to produce the

information to the defense, the truth will never be known. The bureaucratic

instinct for self-preservation and the institutional pressures for a neat

and tidy conviction in this case ensure that, in the absence of coercion

from this Court, information vital to the defense will simply never see the

light of day.




A. Elohim City.

Elohim City is a 240 acre compound near Muldrow, Oklahoma, consisting of

between 25 and 30 families. D.E. 2482 at 19. Elohim City is listed in the

publication Terrorist & Extremist Organizations In The United States at 109.

According to this publication, Elohim City preaches white supremacy,

polygamy and the overthrow of the government. Elohim City is also closely

aligned with the extremist The Covenant, the Sword and the Arm of the Lord

(CSA) and has been known to store weapons for that group. D.E. 2482 at 19.

The spiritual leader at Elohim City is the Reverend Robert Millar. Elohim

City had a close association with the Christian Identity Movement and The

Covenant, the Sword and the Arm of the Lord which had its own grievance

against the United States government. See D.E. 2191 at 33. The federal

government conducted a raid on the CSA on April 19, 1985--exactly ten years

to the day prior to the Oklahoma City bombing. See Id. at 33-34; D.E. 2840

(Pretrial Conference: Volume m--Sealed, January 1997 at 181). Members of the

CSA now reside at Elohim City.

One of the members of CSA turned on the organization and testified at the

trial of Richard Snell in Arkansas. Snell was on trial with others on

charges of sedition--that they conspired to destroy the Murrah Building in

Oklahoma City with a rocket launcher in the early 1980s. Id. Snell was

convicted on unrelated capital charges, sentenced to death in Arkansas, and

was executed on the very day of the bombing in Oklahoma City--April 19,

1995. Id. One of his last statments [sic] before he was executed was,

"Governor, look over your shoulder, justice is coming." D.E. 3410 at 16

(Pretrial Hearing--SEALED--Not Provided to Defendant Nichols, March 10,

1997). (Information in public press reports). His body is buried at Elohim City.

The government has alleged in the Indictment that the Defendants used a

calling card, referred to as the Bridges' Spotlight card, as a means to

prevent calls from being traced. See Indictment at 2. Phone records of the

Bridges' Spotlight debit card reveal that a call was made from a motel in

Kingman, Arizona, to Elohim City minutes before a call was made to a Ryder

Truck rental store in Arizona. According to residents at Elohim City, the

caller asked to speak to an individual named Andy Strassmeir. Around the

same time from the same motel and again with the Bridges' card, nine calls

were placed to a National Alliance Office in Arizona. The National Alliance

is an organization headed by William Pierce, author of The Turner

Diaries--the book characterized by the government as the "blue print" for

the Oklahoma City bombing. See D.E. 2166 at 16.

In addition to the alleged phone call to Andy Strassmeir at Elohim City from

someone allegedly using the Bridges' calling card, Strassmeir acknowledged

meeting Timothy McVeigh at a gun show in Tulsa, Oklahoma in 1993. D.E. 2331

(Exhibit "2" FBI 302 D-12993). Although Strassmeir stated that he was unsure

of the exact date of the meeting, he did recall that it took place sometime

between the start of the federal raid on the Branch Davidian compound in

Waco, Texas, February 28, 1993, and the conclusion of the standoff on April

19, 1993. Id. Strassmeir acknowledged that he attended gun shows with other

residents at Elohim City where he was living at the time. He stated that he

resided at Elohim City for approximately four years, leaving in August 1995.

Dennis Mahon, who now lives in Tulsa, Oklahoma, where Strassmeir says he met

Timothy McVeigh, ran "dial a racist" hotline and would often visit Elohim

City to engage in paramilitary training. D.E. 3123 (Exhibit "A"). As will be

detailed below, a confidential ATF informant has reported that Mahon and

Strassmeir discussed "targeting federal installations for destruction," such

as the Tulsa IRS Office, the Tulsa Federal Building, and the Oklahoma City

Federal Building. According to the ATF informant, Mahon and Strassmeir made

at least three trips to Oklahoma in November 1994, December 1994, and

February 1995. Id.

Elohim City also housed four of the six individuals arrested and charged

with a series of mid-western bank robberies which allegedly were made in the

name of "Aryan Revolutionary Army."[9]



[9] Among the residents of Elohim City, two have a striking physical

resemblance to Timothy James McVeigh and another has a strong physical

resemblance to the person the government describes as John Doe No. 2.


The four individuals arrested and charged in a series of mid-western bank

robberies described themselves as members of the Aryan Revolutionary Army.

The Grand Jury charged the gang of robbers were Richard Lee Guthrie, Jr.,

Kevin McCarthy, Scott A. Stedeford, Peter Langan, Mark Thomas and Michael

Brescia. D.E. 2191 at 17. Richard Lee Guthrie, Jr., committed suicide

(allegedly) in his jail cell in Ohio after entering a plea of guilty and

offering to cooperate with the federal government in the prosecution of the

remaining three. Two of the remaining six, Kevin McCarthy, Scott Stedeford,

have ties to Elohim City in that they lived there for several months as did

Brescia. Mark Thomas, the leader of the Posse Comitatus in Pennsylvania and

an Aryan Nations member, and who was close to two of the mid-west bank

robbers, was in Elohim City on the Thursday before the bomb attack on

Oklahoma City. D.E. 2191 at 34. Mark Thomas allegedly introduced the four of

them to each other in either Eastern Oklahoma or Western Arkansas in 1994. Id.

In the Winter of 1994, or the Spring of 1995, but in any event, before the

April 19, 1995, Oklahoma City bombing, federal officials were actively

planning a raid on Elohim City. If Elohim City was aware of the raid, then

Carol Howe's information that they would strike first and attack the federal

government was a real potential. Elohim City knew, or at least strongly

suspected, there would be a raid because Rev. Millar admitted his fears and

apprehensions to two local sheriffs. Elohim City also had located a series

of "spotters" who would advise them of approaching suspect vehicular

traffic. Millar also complained of an increase in aerial over-flights of

Elohim City and the community also monitored police scanners.

Thus, in the weeks before April 19, 1995, Elohim City (1) was populated by

several individuals who later were indicted for armed bank robbery involving

the use of bomb threats; (2) was populated by individuals who previously had

engaged in armed confrontation with the federal government, exactly ten

years before; (3) had avowed it would not be another Waco and would stake

first in a "Holy War"; (4) knew that the federal government was actively

planning a raid; (5) was populated by people committed to its belief of

Christian Identity, including neo-Nazis with training manuals on how to make

ammonium nitrate bombs.

Finally, there was one other element present at Elohim City, the significane

[sic] of which has not been fully appreciated. It may be a far reach to make

a connection between Elohim City and the Oklahoma City bombing to Iraq or

Iran, but the reach is not far at all. Present at Elohim City was a German

national with a commitment to neo-Nazism and an individual who already had

demonstrated a willingness to break the law by overstaying his visa, and by

assuming the identity of another and driving through Eastern Oklahoma with

books in his car on how to make a bomb. Also present at Elohim City was

Dennis Mahon who once described himself as "the master of all disguises."

Mahon is a world traveler with extensive trips to Germany and efforts to

enter Canada and the United Kingdom. Mahon was the facilitator. Where does

all this leave Tim McVeigh? Is he a part of this? The evidence suggests not

and certainly the defense will contend that he is not. Tim McVeigh is the

classic example of the right man at the wrong place at the wrong time.

Eyewitnesses may place him at places, but the eyewitnesses' accounts are

variable and changing. What is missing is the physical evidence and other

evidence that ties him to the crime. Ideology is not proof of complicity or

involvement in terrorist attacks.

In addition, April 19 was the date of the execution of Richard Snell, soon

to be buried in Elohim City. The same Snell who had previously planned and

considered a rocket launched attack on the Murrah Building which would

destroy it. Thus, the persons responsible for the Murrah Building bombing

were alerted, ready, armed, committed, and poised to strike. And strike they

did. The government had knowledge from an informant plus knowledge it would

obtain from simple, ordinary analysis of the criminal intelligence available

to it. It conducted a somewhat superficial security search of the federal

property in downtown Oklahoma City and found nothing. When the bomb went

off, federal authorities were first stunned and then realized that they did

in fact apprehend the danger and had conducted a limited physical

inspection, but to admit such prior knowledge and such limited physical

search would be to face congressional inquiry and public outrage of such

ferocity that confidence in American government would be badly shaken. April

19, 1995, was December 7, 1941, the Pearl Harbor strike, and December 21.

1988. the bombing of Pan Am 103, all over again.



B. Dennis Mahon. Andreas Strassmeir and Carol Howe.

1. Dennis Mahon.

Dennis Mahon is a virulent racist and avowed enemy of the U.S. government.

He is the No. 3 person in authority in the White Aryan Resistance movement

led by Tom Metzger. D.E. 2191 at 10. There are videotapes featuring Mahon,

in full Ku Klux Klan uniform, lighting a cross at a Klan recruiting trip in

Germany, and yet another videotape of Mahon firing a semi-automatic rifle

during paramilitary training for Klan members. Mahon conducted a "tour" in

Germany in order to recruit other right-wing extremists. The costs of the

trip were split between Mahon and his "German supporters." Mahon joked that

if he was fined the usual 1,000 Deutsche Marks (approximately $600) for

every time he gave the Nazi salute, he would owe 10,000,000 Marks,

explaining "I gave hundreds while I was there."

Mahon is headquartered in Tulsa, Oklahoma, and has referred to the Oklahoma

City bombing as a "fine thing" and stated further, "I hate the federal

government with a perfect hatred . . . I'm surprised that this [the bombing]

hasn't happened all over the country." He has further been quoted as saying

that "all methods are legitimate to save your nation." D.E. 2191 (Exhibit "M").

The Iraqi government has given Dennis Mahon thousands of dollars over the

past six years. Mahon has admitted to receiving money from Iraq

approximately once a month and stated that "it's coming from the same zip

code where the Iraqi Embassy is, but they don't say it's from the Iraqi

Embassy." The money started arriving in 1991 after Mahon started holding

rallies protesting the Persian Gulf War. Mahon is a close friend of Andreas

Strassmeir, the ex-head of security at Elohim City and Mahon has lived at

Elohim City.

During Operation Desert Storm, Mahon produced several videotapes which were

distributed to public access television stations suggesting that the United

States' policy in Iraq was wrong. A defense attorney has interviewed Mahon,

and the defense received, through an intermediary, a tape recording that

Mahon had made to be given to our client. The intermediary felt that the

delivery of such tape recording was improper and was concerned about its

implications and forwarded it to the defense. The defense did not know

whether the purpose of this tape recording was to encourage the Defendant to

"sacrifice" himself for the eventual "justice" of the cause or was a subtle

threat intended to remind the Defendant that members of his family were




[10] The defense has no information that Mr. McVeigh was ever present at

Elohim City or ever met Dennis Mahon.


When the defense learned that Mahon and his brother had telephoned Germany

with orders to kill Strassmeir, the FBI was immediately informed. Mahon's

taped message goes on to say that Mr. McVeigh is "innocent by reasons of

entrapment," but that notwithstanding being innocent, he should accept the

sacrifice in order that justice may prevail. Mahon is a frequent participant

in gun shows. Mahon has been banned from the United Kingdom and from Canada

and was characterized as an international terrorist. A majority of German

terrorists have been trained in Palestinian camps in Jordan, South Yemen,

Syria, Iraq, and Lebanon. D.E. 2191 at 11.

Nebraskan Gary Lauck who was arrested by German authorities for smuggling

terrorist manuals and Nazi propaganda to neo-Nazis in Germany, wrote a

20-page manifesto entitled, "Strategy, Propaganda and Organization." The

paper describes the integration of worldwide extremist groups into a tight

network and "military education with terrorist aims." Sources have informed

counsel that Lauck had frequent contacts with Islamic terrorist groups. He

was also an associate of Dennis Mahon.

In a book written by former German neo-Nazi Ingo Hasselback, which was

excerpted in the January 8, 1996, edition of New Yorker, he recalls how

Lauck offered connections to American neo-Nazi groups. He wrote, "Through

him I later became a pen pal of Tom Metzger, the leader of WAR, the White

Aryan Resistance, in southern California, as well as Dennis Mahon of the Ku

Klux Klan."

After Lauck's arrest by German authorities, German and American neo-Nazi

groups found new ways to smuggle material into Germany using Sweden. Dennis

Mahon helped to establish a chapter of his "White Aryan Resistance" group in

Stockholm, Sweden. The German BKA has confirmed to German ARD television

that this pipeline exists. Before Lauck's arrest, in March 1995, Denmark had

been used as the smuggling point.

Mahon confirmed to ARF television that he brought German neo-Nazis to this

country for training. The interview was videotaped.

In the days immediately preceding April 19, 1995, when Elohim City was

preparing for the execution and funeral of Richard Snell, members of that

community placed numerous telephone calls to Mr. Snell's family, the

Arkansas Bureau of Prisons, the local undertakers, and a series of phone

calls were interspersed to Dennis Mahon's residence.

The defense has also acquired information from unimpeachable sources that

Dennis Mahon made statements to the effect of, "If a person wanted to know

about the bombing, then they should talk with Andy Strassmeir because he

knows everything." These same sources inform the defense that Mahon admitted

to him that he met James Nichols, the brother of Defendant Terry Nichols, in

Michigan. Bob Miles' (a Michigan leader in the White Supremacist movement,

now deceased) farm was only 62 miles from James Nichols' farm.

2. Andreas Strassmeir.

Andreas Strassmeir is a German national whose father is a well regarded and

successful politician in the Christian Democrat Coalition who recently

retired as Secretary of State for West Germany, but whose grandfather was a

founding member of the German Nazi party. D.E. 3123 at 14. Strassmeir was in

this country illegally on an expired visa on April 19, 1995. Id. (Exhibits

"F" and "H"). Subsequently, when Strassmeir became the subject of intense

media and defense scrutiny, his attorney, Kirk Lyons, a well-known North

Carolina lawyer whose principal clients are members of the most violent and

extreme wing of American politics, openly boasted that he had "spirited"

Strassmeir out of the country through Texas, Mexico and France, telling his

supporters that it would

be "easier to defend Strassmeir from Germany than from inside a federal

detention facility." Id. at 14 (Exhibit "H").

Strassmeir, who was originally presented to the press as a starry-eyed

German interested in American military history has now been identified as

the Chief of Security at Elohim City, an active participant in a Klan rally

in Texas, and having overstayed his visa in this country, having traveled on

false identity papers (he was arrested in Oklahoma by State Highway

Patrolman Vernon Phillips using the identity of Peter Ward) and a suspect in

multiple investigations concerning weapons violations, including making

weapons fully automatic. Id.

When Strassmeir, who is trained in terrorist tactics, was arrested on

February 28, 1992, near Elohim City, he was not only carrying false identity

papers, but also statements from foreign bank accounts, and a copy of The

Terrorist Handbook. D.E. 2191 at 12. The Terrorist Handbook states that its

purpose is "to show the many techniques and methods used by those people in

this and other countries who employ terror as a means to political and

social goals.... [A]ny lunatic or social deviant could obtain this

information, and use it against anyone.... [The publisher] feels that it is

important that everyone has some idea of just how easy it is for a terrorist

to perform acts of terror; that is the reason for the existence of this

publication." The table of contents includes chapters on low-order

explosives; high-order explosives, including how to build bombs from

fertilizer and fuel oil; ignition devices; advanced uses for explosives;

delay devices and explosive containers, including plastic containers.

According to a May 19, 1995, newspaper article "witnesses allegedly

identified him [Strassmeir] at the end of April [1995] as one of the number

of men seen in Junction City, Kansas, when McVeigh was also there during the

days leading up to the bombing." D.E. 2191 at 12. One of the witnesses said

she contacted the FBI as soon as she was shown a photograph of Strassmeir by

a U.S. news organization investigating the Oklahoma affair.

Ambrose Evans-Pritchard, the author of this article, and Andrew Gimson, a

reporter in the Telegraph's Berlin bureau interviewed Strassmeir a total of

five times. Over the course of these interviews, Strassmeir revealed the


A. Strassmeir was a former Lieutenant in Germany's elite Panzer Grenadiers,

similar to our Special Forces, and was trained in military intelligence.

B. He first moved to the United States in 1989 "because he was planning to

work on a special assignment for the U.S. Justice Department." According to

Strassmeir, "It never worked out."

C. A retired USAF Colonel, Vince Petruskie was helping Strassmeir at the DEA

and Treasury Department, but ultimately nothing came through. Interviews

with Petruskie by defense investigators confirm this.

D. Having failed to find a job in Washington, Strassmeir went to Texas where

he found work at a computer company, and where ". . . he seemingly drifted

into the subculture of the Klu [sic] Klux Klan, the Aryan Nations, and the

extreme fringes of the Christian right.... He established himself as Chief

of Security (at Elohim City) in weapon training, he said."

E. Strassmeir "also claimed that he copper bottomed information about the

bombing but seemed torn over how much he felt able to impart" to the Telegraph.

F. Strassmeir said, "The ATF had an informant inside this operation. They

had advanced warning and they bungled it." "What they should have done is

made an arrest while the bomb was still being made instead of waiting until

the moment for a publicity stunt."

Counsel for Defendant McVeigh personally interviewed Ambrose Evans-Pritchard

in Washington, D.C., and confirmed each of these points. Mr. Evans-Pritchard

represented to counsel that Strassmeir strongly suggested to him that there

was an informant at Elohim City and that he was the informant. However,

Strassmeir would not expressly admit to it. The government has denied

Andreas Strassmeir was an informant employed by the United States.

Mr. Evans-Pritchard informed the undersigned counsel that as part of his

investigation into Strassmeir's background, Evans-Pritchard interviewed a

member of the Texas Light Infantry during the time Strassmeir was in Texas.

Certain members of the Texas Light Infantry began to believe that Strassmeir

was an ATF informant. Members of the infantry placed a "tail" on Strassmeir

and followed him one night. Strassmeir went into a federal building in which

was housed a local ATF office. On the doors of this particular federal

building, there were combination locks and in order to gain entrance, the

person had to punch in the correct combination. Evans-Pritchard reported to

counsel that the members of the Texas Light Infantry reported that they

watched while Strassmeir punched in the proper code, unlocked the door and

went into the building. D.E. 2191 at 14.

Counsel has been informed by a reliable source that FBI Director Louis Freeh

had invited a subject to accompany him on a trip to Italy and Germany in

late 1993, shortly after Mr. Freeh became director of the FBI. The subject

did in fact accompany Mr. Freeh first to Italy and then to Germany. Counsel

was told that Mr. Freeh specifically invited the subject to be present when

Freeh met with German internal security officials and that he agreed on the

condition that he would not write anything about what he heard.

The subject was present in the meeting in Germany in November 1993 (he

thought it could have been October, but was more positive about November),

and that the German security officials specifically mentioned Andreas

Strassmeir and said that he was "nation hopping" back and forth between the

United States and Germany and that he had been associated with neo-Nazis in

the United States and that they were very concerned about their activities.

Director Freeh replied that the FBI was aware of Strassmeir, and was

"monitoring" his activities, but that "because of the First Amendment, there

isn't anything we can do."

When Strassmeir's potential link to this case was discovered, a reporter

interviewed Dennis Mahon about Mahon's friendship with Strassmeir. When

questioned whether or not Strassmeir could be an informant, Mahon became

visibly upset. As information was traded, Mahon became more convinced that

Strassmeir had been providing intelligence on them. Mahon immediately got in

touch with a Avery important" man in Germany and requested that he determine

if Strassmeir could be an agent for the German government. The reporter

heard them state to this individual that if Strassmeir had double-crossed

them, "[Matron] wanted Andreas shot in both kneecaps and a confession

elicited from him, then hold a 30-minute trial and then execute him." D.E.

2191 at 16. The FBI was immediately informed of the information when defense

counsel learned it.

Despite government denials to the Court that Strassmeir has never been the

subject of the investigation of this case, defense counsel has obtained

documents--generated by the government--which indicate that he most

assuredly was. One official document, dated January 11, 1996, from an

investigative assistant discussed Strassmeir and stated, "Subject is wanted

for questioning by FBI, Oklahoma City. Detain and notify [the FBI]," and

then giving the phone number, and "refer to FBI case number," and then

giving the Oklahoma City bombing case, and then concluding that "subject is

possibly armed and may be dangerous." D.E. 3410 (Pretrial

Hearing--Sealed--Not Provided to Defendant Nichols, March 10, 1997 at 18).

This document was generated months after the defense began requesting

information concerning Strassmeir and during the very time that the defense

was meeting with the District Court concerning Strassmeir. Id.

In addition, the defense has now learned, belatedly through discovery and

through Howe herself, that ATF informant Carol Howe was sent back to Elohim

City after the bombing in an attempt to learn additional information about

Strassmeir, Mahon and others. Also, through discovery, the defense has

learned of significant official communication between the United States

government and its representatives in Germany concerning additional

information on Strassmeir and that Strassmeir has been the subject of

interest to the Counterterrorism Division of the Diplomatic Protective

Service of the Department of State in a document which we can only describe

as specifically bearing the Oklahoma City bombing investigation case number

and photographs of Strassmeir. See attached Exhibit "A" and "B" (Under Seal).

To say, in light of these documents and others filed under seal and not

otherwise identified in this public filing, that Mr. Strassmeir was "never

the subject of the investigation" is simply untrue. Strassmeir remained a

suspect and subject of the Oklahoma City investigation as demonstrated by

the fact that (1) Carol Howe was sent back to Elohim City where Strassmeir

lives, (2) cable traffic between an agency of the federal government and its

representatives in Germany clearly identify official interest in Strassmeir,

(3) his picture and other information was circulated by the Department of

State with respect to the Oklahoma City bombing, and (4) in January 1996, he

was considered to be "armed and dangerous" and was to be detained for

investigation and interview by the FBI. For the government to represent to

the Court, as it did that Strassmeir had never been the subject of the

investigation is not consistent with the known facts and mislead both the

Court and the Defendant. See (Scheduling and Rule 17.1 Conference--Sealed,

January 29, 1997, at 60, 68). Strassmeir not only was a subject of the

investigation and a suspect of official interest on two continents, but that

interest lasted at least from the middle of April 1995 to January 1996.



3. Carol Howe and the Bureau of Alchohol [sic], Tobacco and Firearms.

The defense investigation has accumulated a significant amount of

information aside from discovery which indicates that ATF informant Carol

Howe informed her agency handlers, the Bureau of Alcohol, Tobacco, and

Firearms, prior to April 19, 1995, that various residents of Elohim City

were planning an attack on Federal Buildings which included the Alfred P.

Murrah Federal Building in Oklahoma City. The defense believes that the

government received this information, and in fact followed up on it, in the

early morning hours of April 19, 1995. D.E. 3313 at 1.

Previous representations to the Court by government counsel that Mr.

Strassmeir "was never a subject of the investigation"[11] are inaccurate and

misleading at worse and economical with the truth at best as outlined above.



[11] See Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at

60, 68.


The government in fact conducted an investigation of Mr. Strassmeir and Mr.

Mahon in the days immediately following the Oklahoma City bombing, and then

failed to follow through on the investigation, not because it was

unproductive, but because to pursue the investigation would in effect lead

back to the government's knowledge of prior warning. Defense counsel is of

the opinion that the government has engaged in a willful and knowing coverup

of information supplied to it by its informant.

As a threshold matter, counsel for Mr. McVeigh have requested, in writing,

that the government provide information concerning Dennis Mahon and Andreas

Strassmeir since February 15, 1996. See D.E. 1923 Exhibit "N" (letter to

Beth Wilkinson requesting specific information concerning various

individuals, but specifically naming Dennis Mahon and Andreas Strassmeir).

On March 8, 1996, Mr. McVeigh filed a discovery motion, seeking specifically

intelligence information from the federal government and specifically

mentioning Dennis Mahon and Andreas Strassmeir. See D.E. 1079 at 7 18, 19.

Dissatisfied with the government's responses, counsel filed a Motion to

Compel Production of Discovery Material on August 27, 1996, again,

specifically referencing Dennis Mahon and Andreas Strassmeir. See D.E. 1921

Exhibit "C."

On October 10, 1996, counsel for Mr. McVeigh amended the Motion to Compel

Production of Discovery Material, reiterating specific requests for

information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2265 at

34. Most recently, counsel addressed outstanding discovery requests in a

Supplemental Motion to Compel the Production of Discovery Information,

reiterating the previous specific requests for information concerning Dennis

Mahon and Andreas Strassmeir. See D.E. 2768 at 6-7.

In a nearly one-foot-thick pleading filed October 18, 1996, the government

responded to McVeigh's Motion to Compel the Production of Classified

Information, specifically including information the government possessed

concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2331. Absent from

that pleading, and also from the information responsive to defense requests

for information concerning Dennis Mahon and Andreas Strassmeir, was Insert

No. E-427, a report of interview by the AFT, which concerned a confidential

ATF source named "Carol." See D.E. 3313 (Exhibit "D"). Counsel for Mr.

McVeigh has now learned that "Carol" is actually Carol Howe, an ATF

informant at Elohim City, who had an intimate relationship with Dennis

Mahon, who knew Andreas Strassmeir, and whom ATF Agent Angela Finley

interviewed on April 21, 1995--two days after the bombing.

This particular Insert was brought to our attention by government counsel

during the in-chambers conference of January 29, 1997. See Reporter's

Transcription (Scheduling and Rule 17.1 Conference-Sealed) at 65, no docket

number assigned [hereinafter "Tr. _"]). Government counsel indicated to the

district court that this Insert had been disclosed to the defense on January

23, 1996, but candidly admitted that the government did not list this Insert

in its prior submissions to the district court because the government could

not find it through a computer search. Id. at 66. The Defendant does not

credit this explanation, coming as it does after so many false, misleading

representations from a former intelligence officer now on the prosecution

team. The defense was unable to locate this "non-pertinent" Insert using a

computer because all major search terms contained in the Insert were

misspelled. Elohim City was misspelled or misidentified, as was Mahon,

Strassmeir, the Rev. Robert Millar, and, in addition, Carol Howe was not

identified in the Insert at all. Agent Finley's source was identified as a

"confidential source" named "Carol"--no last name given. Thus, it is not

even clear from the Insert that "Carol" was the confidential source's real

name.[l2] Elohim City was spelled "Elohm [sic] City," Dennis Mahon was

spelled "Dennis Mehaun," Reverend Robert Millar was spelled "Bob Lamar'" and

Andy Strassmeir was spelled "Andy Strasmeyer."



[12] Defense counsel is very suspicious of the multiple misspellings in this

FBI Insert. The Insert was generated as a result of an interview of Carol

Howe in Oklahoma City on April 21, 1995 conducted by Special Agent of the

FBI, James R. Blanchard, II, and Agent of the ATF, Angela Finley. It is

difficult to conceive how Agent Finley could participate in an interview

which would lead to the drafting of a memorandum in which every material

name (Matron, Strassmeir, Millar, and Elohim City) would be misspelled

because, according to Ms. Howe, Agent Finley was her "case handler" and

specifically knew that Howe's assignment was to infiltrate Elohim City and

become acquainted with Strassmeir, Mahon, Millar and others. If the Insert

was prepared without it being reviewed by the person who also participated

in the interview, another law enforcement officer, the process was

incredibly sloppy and unprofessional. If she did review the Insert, the more

likely scenario, she would instantly have known that all of the names were

misspelled. Defense counsel believes they purposefully were misspelled. It

is difficult to imagine how a Special Agent of the FBI can misspell "Matron"

and "Miller."

The fact that prosecutors themselves could not find the insert is not

surprising. There may have been a deliberate effort to deceive them and keep

from them information, which, in their professional responsibilities, they

would know had been turned over to the defense. This was the danger of the

so-called "open file" discovery. Everything was given to the defense, the

government argued, so thus if anything turned up which embarrassed the

government's case, it could always claim it had been "furnished" to the

defense (as indeed government counsel often did), but if it is furnished

amidst thousands and tens of thousands of sheets of paper so that it cannot

even be pulled up on a computer search, then the production is meaningless.

The names of Strassmeir and Mahon are hardly strangers to the discovery

disputes or to the government. Moreover, it emphasizes the need for court

intervention because not even the prosecution can protect itself against

efforts of either the FBI or the ATF to obscure and hide information by



According to government counsel and interviews with other parties, Carol

Howe contacted Agent Finley, her ATF "handler" (see Tr. at 67) and informed

the ATF that she had been at the Elohim City compound and may have seen

"Unsub 1" and "Unsub 2". D.E. 3123 (Exhibit "A" at 1). Carol Howe informed

Agent Finley on April 21, 1995, that she learned about Elohim City when she

called a racist hotline in May, 1994 and met the hotline operator/owner

Dennis Mahon who would visit Elohim City to engage in paramilitary training.

She also told Agent Finley that the security officer at Elohim City was Andy

Strassmeir, whom she described as an illegal alien from Germany and a former

West German infantry officer. Id.

Although Strassmeir has a German accent, he speaks English fluently, and

according to Ms. Howe, Strassmeir talked frequently about direct action

against the U.S. government, he trained in weaponry, and he discussed

assassinations, bombings and mass shootings. She also described the

residents at Elohim City as ultra-militant white separatists where required

reading includes Mien Kampf and The Turner Diaries.

Mahon discussed with Carol Howe "targeting federal installations for

destruction through bombings, such as the IRS Building, the Tulsa Federal

Building, and the Oklahoma City Federal Building." Id. (Exhibit "A" at 2).

In fact, Mahon not only discussed the destruction of the federal building in

Oklahoma City by bombing, according to Ms. Howe, Mahon and Strassmeir took

at least three trips to Oklahoma City in November and December 1994 and

again in February, 1995--and Carol Howe accompanied them during the December

1994 trip. She has repeated these facts to several reporters.

Ms. Howe reported all of this information to the FBI[13] the day after the

bombing, and yet government counsel still insists that Andy Strassmeir was

"never a subject of the investigation" (see Tr. at 68), but curiously does

not make the same statement concerning Dennis Mahon.



[13] The Bureau of Alcohol, Tobacco, and Firearms was aware of this

information prior to April 19, 1995. Carol Howe has flatly stated the

information was provided to the ATF by her and she is satisfied she gave

them enough information to alert them to a possible threat. After her FBI

interview on April 21, 1995, Howe was reemployed as an ATF informant and

sent back to Elohim City.


But the one thing that is clear is that Carol Howe was an ATF informant

feeding the ATF information concerning Elohim City, Dennis Mahon and Andreas

Strassmeir both before and after the bombing of the Murrah Building.

Ms. Howe was the one-time girlfriend of a person named James Viefhaus.

Viefhaus has been indicted by a Federal Grand Jury in Tulsa, Oklahoma for

threatening to destroy buildings by means of an explosive in 15 cities

across the United States, as well as knowingly possessing an unregistered

destructive device. D.E. 3123 (Exhibit "B"). The Viefhaus case has received

considerable media coverage in the Tulsa area. Id. (Exhibit "C").

Viefhaus was arrested December 13, 1996, after federal authorities connected

him to a recorded message, traced to his residence in Tulsa, which

reportedly stated that the bombing of 15 U.S. cities would begin December

15, 1996, unless action was taken against the federal government by "white

warriors" before that date. U.S. Magistrate Frank H. McCarthy "expressed

concern" about investigative reports that Viefhaus has compiled lists of

buildings to be bombed and that Viefhaus possessed pictures of at least two

buildings in Tulsa that house federal employees. Id.

FBI agents claimed that they found ammonium nitrate and other chemicals that

could be used in bombing-making in Viefhaus' home and that the search of

Viefhaus' home including written instructions for bomb-making and references

to the lengths of pipes, caps, screws and fuses, as well as black powder,

accellerants, and various loaded firearms. Id. (Exhibit "C" at 3). In

addition to this information, the search of his house also uncovered a

how-to book about constructing homemade weapons as well as a photograph of

Viefhaus and his "housemate" holding weapons and wearing swastikas on their

clothing. The message that the federal agents have connected to Viefhaus is

believed to be affiliated with the National Socialist Alliance of Oklahoma,

and the speaker on the tape had reportedly endorsed the bombing of the

Murrah building in Oklahoma City.

Carol Howe is the person described as Viefhaus' "housemate" and is the

person in the picture with Viefhaus where the both of them are wearing

swastikas on their clothing. For his part, Mahon has stated to the press

that he does not believe that Howe and Viefhaus are guilty of anything, that

he knows these two persons, and "they gave me their word that they were

above ground and totally legal. They stand up for White Aryan beliefs." Id.

(Exhibit "C" at 9).

Mahon does indeed know both of these persons. Carol Howe had actually filed

a petition in open court in Tulsa, Oklahoma, for a protective order against

Dennis Mahon on August 23, 1994.[14] Id. (Exhibit "D").



[14] The petition makes reference to the "White Aryan Resistance of which

Dennis is the head in Oklahoma." See D.E. 3313 (Exhibit "B").


The basis for the protective order was threatening phone calls in which

Mahon told Howe that he would "take steps to neutralize" her because he

perceived that she had turned on the movement, meaning the agenda of the

White Aryan Resistance of which Mahon is in charge in Oklahoma.

Counsel for Mr. McVeigh has contacted counsel for Mr. Viefhaus, Craig

Bryant, Assistant Federal Public Defender for the Northern and Eastern

Districts of Oklahoma, and Mr. Bryant has in turn spoken with Ms. Howe at

the federal courthouse in Tulsa. According to Mr. Bryant, Ms. Howe is the

girlfriend of James Viefhaus, and asked to speak with Mr. Bryant because of

his concern over the fact that she had not been indicted by the grand jury,

but James Viefhaus, her boyfriend, had been indicted. Mr. Bryant stated that

the prosecutor in the case, Ken Snoke, stated in open court that shortly

after James Viefhaus' arrest, the government felt Ms. Howe was equally

culpable--yet she was not indicted. Id. (Exhibit "E").

Ms. Howe told Mr. Bryant that the reason she was not indicted because she

served as a confidential informant for the ATF for several months in 1995,

and that the information she provided to the ATF concerned an investigation

of Dennis Mahon. Ms. Howe believes that the reason she was not indicted

along with her boyfriend was that the government does not want her prior

work as a confidential informant for the ATF to become public knowledge.

Carol Howe was subsequently indicted on March 11, 1997, in a superseding

Indictment in the United States District Court for the Northern District of

Oklahoma, No. 97-CR-05-C. The defense believes that an Indictment was

obtained against Carol Howe for the purposes of "leverage" against her in

order to keep her mouth shut about what she knows about the activities of

Mahon and Strassmeir. The information she possesses suggests strongly that

the ATF, the most hapless and beleaguered of the federal law enforcement

agencies, may have had notice that militant right wing radicals had targeted

the Alfred P. Murrah building for destruction and botched the interception

of the plan in their finest Waco tradition. The institutional repercussions

for ATF if Carol Howe is telling the truth could be the death knell of that

organization. Information corroborative of Carol Howe will be provided, if

at all, only through the most coercive judicial means.

When counsel filed a Motion to Compel Production of a variety of tangible

objects relating to statements made by Carol Howe, an ATF informant,

concerning the possibility of a prior warning being given to the government

of a possible terrorist attack on federal buildings in Oklahoma, including

the Alfred P. Murrah Federal Building (D.E. 3123), government counsel asked

defense counsel to hold the matter in abeyance pending review of documents

that would be submitted to defense counsel concerning Carol Howe, and the

district court then asked that counsel advise the court whether production

was sufficient or the motion was moot. Counsel thereafter advised the

district court that the issue was not moot and that the order to produce

should issue. D.E. 3313 at 2.

Information furnished to counsel by the government on Thursday, February 6,

1997, concerning the Carol Howe matter raises grave questions concerning the

credibility of representations made to the District Court, repeatedly, and

made to the public and survivors and next of kin of the victims of the

Alfred P. Murrah Federal Building explosion as to whether the government had

prior knowledge that the Murrah Building might be attacked.[15]



[15] The government's denials are carefully circumscribed. In a November 7,

1996, filing (D.E. 2475), the government stated, "Stated simply, neither the

BATF nor any other federal agency had any advance knowledge of the deadly

bomb that McVeigh delivered to the Murrah Building .... Claims on this

point, which he (McVeigh) highlights among 'the most important of all his

claims (citation omitted) are unfounded because the prosecution is not

withholding anything that even remotely would support such an outrageous

charge'." (Emphasis supplied). Notice how carefully this statement is

worded. The government's denial is limited to advance knowledge of "the bomb

that McVeigh delivered." The government does not disclaim knowledge of a

prior warning from Carol Howe that the Murrah Building was one of three

targets that a group of Aryan Nation White Supremacists, members of a

terrorist organization at Elohim City, were planning to use in a first

strike against the government because Elohim City feared that it would be

the next "Waco" and should, in the words of Carol Howe, "strike first."

Moreover, the Court's attention is respectfully called to the fact that

after stating the "government's" denial, the proper noun is then shifted so

that it is "the prosecution" which is not withholding anything .... Whether

the prosecution is withholding it or not is immaterial. What is clear is

that the government is withholding it.


Although it might appear at first glance that this issue would not directly

be related to the issue of Mr. McVeigh's guilt, in fact, it is very much an

issue for the Court to consider.

To begin with, it has consistently been the government's belief and argument

that two, and only two, individuals were the "masterminds" (to use the

prosecution's statement of April 9, 1996, (D.E. 3313 at 6) at page 56) for

the Oklahoma City bombing. Carol Howe's statement indicates that there are

other "masterminds" including at a minimum Andreas Strassmeir, or Dennis

Mahon, and quite possibly Reverend Robert Millar. In addition, aside from

impacting upon Mr. McVeigh's guilt as a "lesser participant" in Count One,

it might be a direct defense for Counts Two through Eleven, especially when

the government does not have a single eyewitness to place Mr. McVeigh in

Oklahoma City that it is willing to sponsor at trial. Finally, the issue of

government prior knowledge is directly related to the appropriateness of

punishment and is a strong mitigating factor should Mr. McVeigh be convicted

of one or more of the substantive counts.

Repeatedly, the government has denied that it had any prior knowledge of a

suspected bombing attack on the Murrah Building on April 19, 1995. The

government has not qualified these denials by saying it had no credible

information. In this connection, the government's representations to the

district court are not dissimilar from the ones government counsel made

which have subsequently been amended. Government counsel advised the

district court at the April 9, 1996, session that the government had "no

information" of any possible foreign involvement when in fact the government

did have precisely such "information." Subsequently, this statement was

amended to mean "no credible information." D.E. 2330 at 6. The government

has simply denied, through the prosecution, the existence of any such

information of a prior warning.

In a public pleading filed on November 7, 1996 (D.E. 2475), the prosecution,

acting on behalf of the government, referred to the Defendant's request for

such information of a prior warning as "outrageous." (D.E. 2475 at 6).

Indeed, in the same pleading, the government went so far as to claim that

ATF agents had been injured in the explosion and that one of them had

actually suffered a free fall in an elevator in the Murrah Building. These

statements were made on the public record and highlighted considerably in

the press. In fact, the representation was false and untrue. Information

furnished to the defense by the prosecution from the government long before

November 7, 1996, indicates that the government's own investigation and

interviews with the elevator engineer show that the elevator simply did not


>From information furnished to the defense from its own investigation, from

national reporters for ABC and NBC television news, from Time magazine, and

from certain material furnished by the government, it is clear that the ATF

had an informant, Carol Howe, the daughter of a very prominent and

successful Tulsa, Oklahoma, couple who for a period of time possessed

beliefs in racial superiority of Caucasians. This belief was apparently

initially formed as a result of a confrontation Ms. Howe had as a young

woman with several young black males which required her, for her safety, to

jump off the roof of a building and resulted in fractures or bone breaks in

her ankles or legs. D.E. 3313 at 5.

After this incident Ms. Howe gravitated toward the Aryan Nation movement and

became a close personal associate of Dennis Mahon, the former Imperial

Wizard of the Ku Klux Klan, an individual who has received money since 1990

from Iraq, who has traveled to Germany to recruit for the Ku Klux Klan, who

has been barred from the United Kingdom and Canada as an "international

terrorist" (according to Mr. Mahon's own statement), and who has made a

number of statements of the most extreme political nature about the

necessity and desirability of overthrowing the government of the United

States "by any means." D.E. 3313 at 5. In addition, Mr. Mahon is a former

leader in the White Aryan Resistance, sometimes identified as No. 3 in its

leadership, and apparently was a member of the Order.

Although it was not quite clear to counsel when Ms. Howe became an informant

for the ATF, she has indicated that her relationship with Mr. Mahon became

troublesome, she sought a protective order against him (D.E. 3313 (Exhibit

"B"), and may have at the same time been recruited as an informant by the

ATF and paid approximately $120 a week.

The government has since verified that Ms. Howe became a registered

informant for the Bureau of Alcohol, Tobacco and Firearms (ATF) in August,

1994, and continued her work on a regular basis until she was, according to

the government, terminated on March 27, 1995. D.E. 3360 at 34. At that time,

the ATF agent requested she be terminated as an informant because it was

concerned about her state of emotional distress and her "loyalty" to the

ATF. But even this representation by government counsel was simply not true.

Government counsel admitted on March 10, 1997--after stating on January 9,

1997, that Carol Howe had ceased being an informant in March 1995--that Ms.

Howe, although removed as an ATF informant on March 27, contacted the ATF on

April 20, 1995, concerning her knowledge of the Oklahoma City bombing, ATF

requested permission to reactivate her as an informant, and she was sent

back to Elohim City to follow up the information she provided. D.E. 3410

(Pretrial Hearing--Sealed--Not Provided to Defendant Nichols at 32).

(Information here only summarized--please see full sealed transcript).

On the morning of February 13, 1997, defense counsel was informed that the

FBI would deliver to his office, shortly after 1:30 that day, reports on Ms.

Howe's activities prepared by Agent Angela Finley. At approximately 1:30

p.m., two agents arrived and appeared with what were represented to be

summary reports of Ms. Howe's activities for the ATF prepared by Agent

Finley, her case handler. Accompanying the file was a letter from government

counsel with one attachment which counsel was permitted to keep. A copy of

the letter from government counsel and the attachment are found at D.E. 3313

(Exhibit "C").

This delivery to counsel's office followed a 7:30 a.m. telephone call to

counsel that morning by one of the prosecutors who advised counsel that the

government had learned that Carol Howe was going to conduct a press

conference in Denver that afternoon. Counsel for Mr. McVeigh had no such

information and expressed to the prosecutor that he did not believe that

such a press conference was in the works because Ms. Howe was in Austin,

Texas, and her attorney, Mr. Smallwood, was in a first degree murder trial

in Tulsa, Oklahoma.

The undersigned counsel read the reports which were prepared and signed by

Angela Finley, and on some occasions by others in the ATF Office in Tulsa.

Incidently [sic], counsel noted that Ms. Finley had absolutely no difficulty

spelling correctly the proper nouns which constitute the names Dennis Mahon,

Andreas Strassmeir, Elohim City or Reverend Robert Millar, all of which,

were misspelled in the report provided to counsel. D.E. 3313 (Exhibit "D").

This report reflects the interview that Ms. Finley and FBI Special Agent

James R. Blanchard, II, had with Carol Howe on April 21, 1995.

While it may be claimed that Mr. Blanchard was "inexperienced" and Ms.

Finley did not actually see the finished memorandum, such statement or

claim, if made, credulity lacks. Ms. Finley was one of the two interviewing

agents, and undoubtedly was furnished a draft of the memorandum of interview

and could easily have corrected it. We believe that this information was

deliberately misspelled in order to disguise or hide it from a computer

search by the defense counsel. In fact, according to the representations of

government counsel to the district court on January 29, 1997 (Tr. at 66),

the prosecutors themselves could not find the information because of the


We do not credit these explanations. We note that when the district court

directed the government to respond to our request for information on Mr.

Strassmeir and Mr. Mahon, the government filed numerous 302's and other

material, but the Insert prepared by Blanchard-Finley (which arguably

constitutes the most significant information concerning Strassmeir and

Mahon) was not included in the material filed under seal with the district

court on October 18, 1996. See D.E. 2332. Considering the fact that the

identity of Strassmeir and Mahon and the Defendant's suspicions of them have

been the subject of numerous filings in this case, the failure of every

government prosecutor and every case agent who worked on this file to

remember the April 21 interview simply is not credible, but if it is

credible, it once again suggests that the Defendant is being penalized

either because of the government's willful or negligent withholding of

information. If government prosecutors knew of the April 21 memo and failed

to disclose it, after being directed to by the district court, the

withholding of it was willful. If, after the district court specifically

ordered a full response, and the government could not find it, then it was

negligent in not knowing its own material which concerns a subject not of a

casual interest, but of direct relationship to the case and the defense

Brady request.

The reports which counsel read are not the reports of Carol Howe, but

purport to represent monthly summaries prepared by Agent Finley of some of

the work of Carol Howe and some of the things that she reported. The last

report is February 1995, but there is no December 1994 report.

Although these limited number of documents do not specifically reflect the

precise information that Carol Howe furnished on April 21, they come very

dose to suggesting it. In her April 21, 1995, memorandum, Ms. Howe discussed

Andreas Strassmeir, Dennis Mahon and Elohim City at some length and

specifically mentioned that Dennis Mahon had talked to her about bombing

either an IRS building, the Federal Building in Tulsa, or the "Federal

Building" in Oklahoma City, presumably a reference to the Alfred P. Murrah

Building, although it could arguably have included the old Post Office

building and the United States Courthouse, both of which are in the "Federal

Complex" in downtown Oklahoma City. All of the allegations she has repeated

in subsequent interviews.

On the other hand, the Insert does not state that Ms. Howe did not furnish

this information prior to April 19. The Insert purports to reflect what Ms.

Howe was telling the FBI was her knowledge on April 21. Whether she told the

FBI about her previous contacts with the ATF is not immediately clear from

official documents, but presumably she did because she is identified as a

"confidential informant" for the ATF. Of course, at that moment in the

investigation, and with Ms. Finley present in the room, the FBI agent could

have failed to ask the question about prior notice by Ms. Howe, or if he

asked the question, simply not put down her answer on the self-justified

ground that he was not investigating whether the ATF was negligent, but

whether Strassmeir and Mahon had a role in the bombing.

However, in the reports which counsel read, Ms. Howe did tell the ATF,

according to Finley's summary, that she had been in and out of Elohim City

on a number of occasions, that Elohim City residents, including Mahon and

Strassmeir, were apparently engaged in serious violations of federal weapons

law, that there was a plan to place a bomb on the front door of a Tulsa

business by Mahon, and that Mahon himself, together with Strassmeir, had

talked about making bombs and the necessity to take action against the

federal government. According to these summary reports, Strassmeir

specifically told Howe that he was interested in bombing or blowing up

federal buildings, installations or property. Again we stress this

information was given to the government prior to April 19, 1995, because it

is in reports dated prior to that day. The accuracy of the information has

been confirmed in whole or part from three media sources.

In addition, Howe has described the Reverend Millar as preaching continually

the necessity of a "Holy War" against the federal government and Howe

described that the residents at Elohim City were very familiar with what had

happened at Waco, they admired David Koresh, and that copies of the Turner

Diaries[16] were readily available. Summarized at D.E. 3313 at 10, but

repeated in other interviews.



[16] The government has repeatedly alleged that the Turner Diaries contained

the blue print for the bombing of the Murrah Building.




In addition, Ms. Finley has described an underground bunker at Elohim City,

a weapons storage unit and other places. She advised the ATF that Strassmeir

was in the country illegally, that he thought it was time to take action,

and that she and her ATF agent had purchased various inert grenades in an

attempt to see if Dennis Mahon, Strassmeir, and although counsel does not

remember specifically, it appears also that she referenced Peter Ward, Mike

Brescia and others as people who would make the grenades "live." She

described Strassmeir as chief of security and military training, and said

that night-time military training exercises were held. She also described

that there was an influx of people in and out of Elohim City from what might

be described as other Fundamentalist Protestant denominations who mix a

Fundamentalist belief of religion with hatred of the government. D.E. 3313

at 10-11.

All of the above Carol Howe stated before April 19, 1995. What she told the

ATF concerning Andreas Strassmeir is consistent with Oklahoma State Highway

Trooper Vern Phillips' arrest of Strassmeir carrying the false identity of

Peter Ward with information on how to build terrorist explosives found in

his automobile. This information was subsequently furnished to the defense

in discovery, see D.E. 3313 at 11, but is also in Phillips' arrest report

and confirmed in substantial part by the wrecker driver.

Counsel has had a number of telephone conversations with Ms. Howe's

attorney, Allen Smallwood, a well regarded member of the Tulsa bar. Counsel

had previously furnished Mr. Smallwood a copy of the Insert concerning his

client while advising him of the existence of the protective order and

asking him to comment on it. D.E. 3313 at 11.

Subsequently, counsel learned that before 20/20 ran its first program on

January 17, 1997, concerning possible prior knowledge by the government,

that members of the prosecution had telephoned ABC the Monday before the

program was to air on Friday and had two conversations with him, one of

which lasted an hour and the other which lasted approximately 47 minutes,

and that a prosecution member thereafter called ABC on several occasions

during the week in an attempt to persuade ABC not to air the program.

Later, another government counsel also contacted ABC. A representative of

ABC considered these efforts by the government to be news management and an

attempt to censor a legitimate news story. ABC claimed that on the day the

second program was to run on ABC Evening News to discuss Carol Howe, that

the prosecutors again telephoned ABC in an attempt to persuade ABC not to

run the program and that a senior public information officer from the ATF

also telephoned ABC. D.E. 3313 at 12.

ABC representatives had a conversation with a government press spokesman

("press spokesman") of the Department of Justice, and the press spokesman

confirmed for ABC that its information "is accurate." She stated to ABC that

she did not believe the November/December confidential informant reports

talked specifically about people blowing up buildings and she did indicate

to ABC that there was a limit to what she could say because of discovery and

ABC said that the press spokesman then said, "We have to admit now

Strassmeir has been investigated." ABC stated that the representative said

words to her to this effect: But you have denied over and over and over that

he was ever the subject of an investigation. ABC said the press spokesman

then said, words to this effect: "Well, we're undenying that now. He has

been investigated, but we could not involve him specifically in the bombing

of the building."

ABC then said the press spokesman said that in regard to Carol Howe, that

she had heard other people, while an informant, talking about threats and

those people "were investigated, but it was after the bombing" and she said,

the government "could not find anyone who bought fertilizer, could not find

anyone who rented a truck, so therefore we could not charge them with

anything." Then, according to ABC, the press spokesman said, "We're not sure

that information was credible." ABC then said, but did you or did you not

send her back out? The press spokesman said that information was correct,

she was an informant sent back. ABC then said: "Well, what in the hell does

that mean?" And the press spokesman said: She did go back out, but she was

unable to develop any evidence that these people had participated. ABC said

that the press spokesman then said, "Essentially your information is

correct." But the press spokesman said there wasn't anything that

specifically connected them to the bombing of the Murrah Building. D.E. 3313

at 13.

ABC also said that the press spokesman attempted to belittle the credibility

of Carol Howe by stating that the government hears these types of statements

all the time from "White Supremacist compounds." ABC then said to her: Yeah,

but there's one difference here. The press spokesman asked what that was and

the producer said, "The God damn building blew up, that's what." The press

spokesman then said, "All right, but even if that's accurate, what's it all

add up to?" The producer said, "168 dead people, that's what." The press

spokesman then sought to terminate the conversation by saying she would give

an "official response" the next day.

After the 20/20 piece on prior warning aired on January 17, 1997, a

confidential source for the defense asked Ms. Howe, "Do you think you told

them [federal law enforcement, ATF and FBI] enough before the bombing to

have alerted them to have the bomb squads out and to have taken

precautions?" She replied, "Yes." She also told ABC News that she had

provided to the ATF a written report concerning her visit to Elohim City in

May, 1995. The defense has not received a copy of this report.

The defense has also received information from unimpeachable sources that

Ms. Howe made statements on December 24, 1996, which were tape recorded,

concerning Strassmeir. When Ms. Howe was asked about Strassmeir she

responded, he said he didn't want to settle down [and get married] with

anyone because he wanted to go blow up federal buildings. That's exactly

what he said." Ms. Howe also told the defense source that she had retrieved

the notes she had used to brief her ATF handler, Angela Finley, about the

detonator that Andy Strassmeir received from Sinn Fein, the Irish terrorist


The defense has also received information that ATF Agent Angela Finley may

have instructed Ms. Howe to violate ATF regulations concerning agent

dealings with confidential informants (CIs). According to defense sources

who have interviewed Ms. Howe, Agent Finley told Ms. Howe not to report

payments. This is a most serious violation of the absolute requirement that

CIs be emphatically told that they must report all payments as income.

Second, Agent Finley led Ms. Howe to believe that her debriefings were never

recorded. ATF regulations require that all CI debriefings must be recorded

and are very precise concerning the handling of the audio tapes of the

debriefings. The defense believes that the more likely scenario is that

Agent Finley was recording the debriefings and did not want Ms. Howe to know


In addition, counsel has also spoken with NBC News, which also interviewed

Ms. Howe and who confirms that she told NBC and one other person the same

information, that is, that she had informed the ATF prior to April 19, 1995,

of the activities of Mr. Mahon and Mr. Strassmeir and Elohim City residents

in (1) believing a Holy War was imminent, (2) that Elohim City should

strike first, (3) that Elohim City was the next Waco, (4) that Strassmeir

and Mahon wanted to bomb and blow up buildings, including Federal Buildings

and installations, and (5) among these buildings was the Federal Building in

Oklahoma City.

A report from Time magazine (D.E. 3313, Exhibit "A") indicates that Ms. Howe

gave a tape-recorded statement to an individual in which she indicated that

she had made a prior warning to the government concerning Mahon and

Strassmeir and that Mahon had indicated he was considering three (3)

targets, an IRS building, the Federal Building in Oklahoma City and the

Federal Building in Tulsa.

Time magazine then states:

Sources in the federal government admit that Howe was

a paid ATF informant in Elohim City from August 1994

until March 1995, but they say her 38 surreptitious

tapes contain no evidence of a bombing conspiracy in

the works. Only when she was debriefed two days after

the bombing, government sources say, did she claim that

Mahon and Strassmeir had discussed bombing government

buildings. Agents familiar with the interview considered

her answers speculative; in any case, she offered no

additional details.

D.E. 3313 at 14. Among the persons assisting with the report in this article

was Elaine Shannon, who is Time magazine's Department of Justice reporter.

Counsel has long ago complained to the district court that the government's

statements on material exculpatory information of other suspects and other

leads is highly qualified. The government has told the district court that

it had "no information" of a possible foreign involvement when it did. The

government has told the district court that "Andreas Strassmeir was never

the subject of the investigation," when he was. There is no other way to

describe the material found at D.E. 3313 (Exhibit "E") which consists of

State Department papers and other material from the State Department, other

than Andreas Strassmeir was a subject-suspect in the Oklahoma City bombing.

What government prosecutors have done is used the narrow definition of

"subject" contained in the Department of Justice Manual to mean that the

Grand Jury took no action or no interest in Mr. Strassmeir. That is not the

test of Brady. The district court undoubtedly understood her comments to

mean that Strassmeir was never the subject of official interest by the

government when he most assuredly was. Likewise, the government press

spokesman's statements that they couldn't find that anybody at Elohim City

had purchased fertilizer or that there wasn't any "specific" mention of the

Alfred P. Murrah Building is unavailing. The government is hiding behind

semantics such as "subject," "investigation," and "specifically." The truth

is that Mahon and Strassmeir and others are part of what is described as a

terrorist organization at Elohim City which believed that it would be the

next Waco, and should engage in a Holy War and strike the government of the

United States first.

A pristine example of government double-speak occurred very recently in a

newspaper article published in the Daily Oklahoman in Oklahoma City. See

attached Exhibit "C." The Oklahoman quoted Weldon Kennedy, the FBI's chief

investigator on this case, as saying that he "doesn't believe" that there

was a prior warning. He "doesn't believe" it happened. This is from the

government's chief investigator. See attached Exhibit "C." The pattern is

clear. The more the evidence slips through the cracks that the government

may have had an indication that a tragedy like Oklahoma City might occur,

the more the government relies upon specificity in defining the word "warning."

Soon the government's position will revert to the ridiculous and it will

only deny any knowledge that the Murrah building was specifically targeted

at 9:02 a.m. on April, 1995, to be destroyed by a bomb delviered [sic] in a

Ryder rental truck by Timothy McVeigh. That is not the standard for

discovery in federal courts; that is the federal government playing word

games in order to avoid what is potentially the single most embarrassing and

humiliating situation since the public found out that the FBI had an

informant inside the terrorist group that bombed the World Trade Center in

New York--an informant that actually helped make the bomb--but they bungled

the entire situation and did not prevent that tragedy.

Carol Howe told the ATF that they certainly understood the significance of

the date April 19 at Elohim City (if not for Waco, then the execution of

Richard Snell). The government has been hiding behind verbal gymnastics and

linguistic word games and failed to produce the information. The Time

magazine article is an outstanding example. Again, it states, Abut they

(sources in the federal government) say her 38 surreptitious tapes contain

no evidence of a bombing conspiracy in the works." Of course, her 38 tapes

may not, but counsel wants to read the raw reports, review the tapes

himself, and the videos, and asks this court to order material that the ATF

or FBI have concerning Elohim City, Andreas Strassmeir and Dennis Mahon to

be produced forthwith.

The defense has made a sufficient showing that there is a high probability,

certainly at least a high possibility, that Mahon and Strassmeir are part of

a conspiracy that planned to bomb Federal Buildings, and may have in fact

been part of the conspiracy to bomb the Murrah Building. We are not talking

about proof beyond a reasonable doubt, or sufficient proof to indict. We are

talking about the duty of the government to furnish information to the

defense to support what is clearly its stated defense, i.e. that Mr. McVeigh

is not guilty and that he is not a part of the conspiracy.

Andreas Strassmeir's roommate, Mike Brescia, and two other residents of

Elohim City have now been indicted by a Federal Grand Jury for 22 midwestern

bank robberies in which false FBI identification and threats of bombs were

involved. These robberies, according to the Indictment, were to finance the

Aryan Republican Army (which included as one of its members Dennis Mahon).

This Grand Jury Indictment certainly indicates, for purposes of Brady

discovery, that individuals residing at Elohim City at the same time as

Mahon and Strassmeir were fully capable of carrying out terrorist acts.

They are members of a terrorist organization; they associate with known

terrorists; at least one of them has been prohibited from entering a foreign

country because he is a terrorist; they have told an ATF informant that they

wish to blow up Federal Buildings; they had made no secret for the dislike

of the government of the United States; they are members of a violent,

right-wing, neo-Nazi, White Supremacist, Aryan Nation organization; and one

of them is in the pay of Iraq. Evidence now exists that Mahon and Strassmeir

may have engaged in federal weapons violations; may have planned a bombing

attempt on the IRS building, the Federal Building in Tulsa, or the Federal

Building in Oklahoma City prior to April 19, 1995; that Strassmeir and Mahon

traveled together to Oklahoma City on several occasions prior to April 19;

that they and other residents at Elohim City felt that Elohim City must

strike first and wage a Holy War.

Our patience is exhausted. The time for wrangling is past. We are no longer

convinced the documents drafted and furnished to us, after the fact, by

bureaucracies whose very existence and credibility is challenged, can be

relied upon. We ask for an order compelling production of all the raw notes

and all the reports and materials requested, not some sanitized version that

is presented to us in an attempt to persuade us to join with the government

in disputing a story which increasingly appears to be absolutely truthful.

Not only this court, but especially the defense, are interested in candor

from the prosecution. The defense cannot be required to accept a definition

of words as interpreted by the prosecution when apparently it has the only

copy of the dictionary.

This is a solemn criminal case, not Alice in Wonderland where definitions

mean only what "the Queen thinks" and what she thinks is not known to anyone

else. When the district court is told that an individual was not the

"subject of the investigation," the normal and widely understood meaning of

that word is that he was not of investigative interest, there is nothing

which connects him. It does not mean "nothing credible" or that no Grand

Jury subpoena was served.

A report by an informant, even after the bombing, that Strassmeir and Mahon

were considering bombing Federal Buildings, had discussed the subject, and

that one of them had clearly mentioned the Alfred P. Murrah Building, that

the two of them had made trips to Oklahoma City, that one of them was an

alien who had overstayed his visa, that this informant regularly passed

polygraph examinations, and was used by law enforcement to record telephone

conversations after the bombing, that she was sent back to Elohim City after

the bombing, coupled with a flurry of cables to our Embassy in Bonn

concerning Andreas Strassmeir, certainly makes him a "subject of the

investigation" and any reasonable person, congressional committee or

appellate court would so understand.

Common sense dictates no other conclusion. The repeated practice of the

government and prosecution in this case when the shoe gets binding is to

make a partial disclosure, assure the district court it understands its

Brady obligations, and hold its breath, hoping the court does not order

further disclosure, or will rely on the prosecution's "good faith." We think

on the eve of trial, that the district court has expressed its view of the

prosecutors' duty clearly enough and that they have told the court that they

understand it, but partial compliance, delayed disclosures, and discovery

information which cannot reasonably be found because of egregious

misspellings are inconsistent

with that duty. The order to produce should issue and this foolishness

should end.

Statements to the court by the prosecution that it cannot connect Strassmeir

and Mahon to the bombing are hardly surprising. They did not try very hard

to connect them because had they been connected, and Carol Howe's previous

warning disclosed, the resulting furor would have been unimaginable.




A. Suspect I. Posse Comitatus. and Iraq.

The defense believes that there is credible evidence that a conspiracy to

bomb federal property, very possibly the Murrah Building, is centered in

Elohim City and the persons described which are associated with Elohim City,

but that the technical expertise and possibly financial support came from a

foreign country, most likely Iraq, but possibly Iran or another state in the

Middle East. Dennis Mahon has admitted publicly to received money from Iraq,

approximately once a month. D.E. 2191 at 11. According to Mahon, the money

started arriving in 1991 after he began holding rallies protesting the

Persian Gulf War. Id.

Although the defense has no direct evidence linking Suspect I with Iraq,

there is evidence indicating an indirect connection between Suspect I and

Iraq through the militant Posse Comitatus group in Kansas. Suspect I made

two telephone calls to members of Posse Comitatus in Kansas: David Oliphant

and Buddy Snead (who also is married to a Filipina). Sources within the

Central Intelligence Agency have informed a defense source that two members

of the Posse Comitatus from Kansas traveled to New York City and made

contact with an Iraqi diplomat either immediately before the Persian Gulf

conflict with Iraq or immediately after. In addition, the defense has recent

information that someone made a telephone call from Suspect II residence to

a Member of the Order. D.E. 2482 at 22.

1. Posse Comitatus.

Posse Comitatus was originally formed by William Gale, who died in 1989 at

the age of 71 after having been convicted and sentenced to serve one year

for impersonating a federal law enforcement officer. D.E. 2482 at 22-23. Mr.

Gale died before his incarceration, apparently of natural causes. Id. Gale,

a retired Army colonel who led World War II guerrilla units in the

Philippines for General MacArthur, founded Posse Comitatus in 1969 with

Henry Beech. One of the principal leaders of Posse Comitatus is Jim

Wickstrom. Gordon Kahl was an activist in the Posse Comitatus who killed two

federal marshals in a shoot-out at his North Dakota farm and became a

fugitive. Kahl and Wickstrom were close friends. Id.

Kenneth S. Stern, in his book, A Force Upon the Plains (Simon & Schuster,

1995), wrote this of the Posse Comitatus in Kansas:

But the Posse did more than pass out literature.

Like many of today's militia groups, it practiced

for war. One of the leaders of the Christian Identity

(Elohim City is a branch of Christian Identity), the

Reverend William Potter Gale, joined with James

Wickstrom, leader of the Posse, to co-sponsor a

string of "counter insurgency seminars" in the early

1980s. In Kansas, the Attorney General's Office

reported that people were trained as "killer teams

and hand-to-hand combat techniques, the administration

of poisons, night combat patrol and murder by ambush."

At least one bomb making seminar was also held.

(Page 52) (Emphasis added.)

William Gale also authored a handbook on Guerilla warfare tactics for the

Posse Comitatus and stated that, "Yes, we are going to cleanse our land.

We're going to do it with a sword. And we're going to do it with violence."

James Corcoran, Bitter Harvest at 31 (Viking 1990). See D.E. 2482 at 23.

Three members of the Posse Comitatus met with the Iraqi Ambassador and one

is a resident of Kansas, living at Pratt, within an hour to two hours' drive

of Herington. James Wickstrom was in Kansas immediately before the bombing.

Of the three Posse members that met with Ambassador Mohammed Mashat of Iraq,

Ed Petruskie lives in Pratt, Kansas. Eugene Schroeder lives in Colorado and

the address of Alvin Jenkins is not known to the defense.

B. Saudi Report Concerning Iraq.

An official in the Saudi Arabian Intelligence Service reported[17] on April

19, 1995, and possibly earlier, that Iraq had hired seven Pakistani

mercenaries, all veterans of the Afghanistan War, to bomb targets in the

United States, one of which was the Alfred P. Murrah Building. D.E. 2191 at

3 (Exhibit "A").



[17] Significant portions of this material are in the public record either

through media account or court proceedings.


A former Chief of Counterterrorism Operations for the Central Intelligence

Agency provided this information to the United States government and

described his source as "responsible for developing intelligence to help

prevent the Royal Family from becoming victims of a terrorist attack." Id.

Thus, this information is not only facially credible, it is highly credible.

The Director of Saudi Arabian Intelligence is the King's own son. There is

no reason for such a high ranking official in the Saudi Arabian intelligence

community to pass on such information if it is not true (or if there no

reasonable basis to believe it is not true). On the contrary, the

information has a strong indicia of reliability because of the extreme

embarrassment to Saudi Arabia if the information is in fact false or

unverifiable. It should be noted as well that the information provided to

the defense by the government indicates that there are possibly two sources

of this information. The FBI reports describe the source of the information

as a person who has provided accurate and reliable information in the past.

The information is credible and needs more investigation.

The information in these reports is not only facially credible, it is

specific. The Saudi Arabian official reported that the bombing of the Murrah

Building was sponsored by the Iraqi Special Services, who "contracted" the

mission to seven (7) former Afghani freedom fighters currently living in

Pakistan. The official also advised that the identity of the true sponsor of

the bombing was concealed from the Pakistanis and the Afghan mercenaries may

not have knowledge of Iraqi involvement or sponsorship. This is not unusual.

This is simply how things are done in the world of international terrorism,

intelligence, and covert operations. Despite repeated requests, the defense

has been

provided the sum total of three pages of information concerning this aspect

of the case. See D.E. 2191 Exhibit "A."

The defense requested assistance from the United States State Department,

via letter to the Secretary of State, to assist in defense investigation and

travel to Saudi Arabia. Saudi Arabia has very stringent entry requirements

and the defense was unable to facilitate investigation there. The State

Department declined politely to assist the defense's travel to Saudi Arabia

and attempt to interview the Saudi Arabian official. However, the State

Department sent a list of law firms practicing in Saudi Arabia to the

defense; but of course the State Department had no difficulty in

facilitating entry into Saudi Arabia of American FBI agents traveling there

to investigate the death of Americans in Saudi Arabia.

C. FBI Special Agent Kevin Foust.

The report originally generated concerning the information provided by the

Saudi Arabian official came from a telephone call from a retired CIA

official to FBI Agent Kevin L. Foust on April 19, 1995--the very day of the

bombing. D.E. 2482 at 13. Agent Foust is no stranger to tracking down and

prosecuting international terrorists. In fact, according to information and

press reports in the public domain, Agent Foust appears to be one of the

FBI's leading investigators in charge of apprehending and prosecuting

terrorists. See D.E.

2482 Exhibit "D" (New York Times, Monday, October 7, 1996. The defense

believes the ex-CIA official called Foust and the CIA because he did credit

his informant and the informant's information, and that the government's

claim that ex-CIA official believed his informant was "untrustworthy" is

nothing more than ex-CIA official's efforts to protect his source. The

ex-CIA official it must be remembered is a long time intelligence operative.

Certainly, nothing in the documents furnished by the government report the

ex-CIA official as describing a Saudi official in that country's

intelligence services, charged with protecting the Saudi royal family, as


Agent Foust, along with Agent Robert F. Clifford, were instrumental in

apprehending Omar Mohammed Ali Rezaq, a member of the notorious Abu Nidal

terrorist group, who, along with two other terrorists, hijacked an Egyptian

airliner in 1985. Separating the passengers by nationality, Rezaq pulled

aside the Americans and the Israelis, summoned five to the aircraft's open

front doorway and then fired point blank into the back of their heads.

Although three persons survived this brutality, two women were killed, one

an Israeli and one an American. D.E. 2482 at 14.

This incident involved Egypt Air Flight 648 on November 23, 1985, which was

a Boeing 737 carrying 98 passengers and crew members. Rezaq and two other

men seized the plane shortly after takeoff on a flight from Athens to Cairo.

In an ensuing gun battle, an Egyptian Sky Marshal on the plane shot and

killed the hijacking leader, and the pilot landed the plane in Malta.

Eventually, Egyptian commandos set out an explosive charge under the

airplane and rushed the plane. In the ensuing confrontation, the blast

rocked the rear of the plane and a fireball blew forward through the cabin.

Fifty-seven more passengers and one hijacker died in the raid from smoke

inhalation, explosive wounds or gun shots. Rezaq was in fact shot in the

chest as he fled the plane. D.E. 2482 at 14.

Rezaq was prosecuted in Malta which, in 1992, was considering whether to

free him, possibly as early as 1996. It was then that Agent Foust was

enlisted to build a case for prosecuting Rezaq in the United States. When

the Maltese government released Rezaq, Agent Foust and others tracked him

down through the Sudan, by way of Ghana Nigeria and Ethiopia finally

catching up with him and apprehending him in Nigeria.[18]



18 Agent Foust may also have been involved in the investigation of the

Achille Lauro case. Agent Foust is apparently knowledgeable concerning the

travel of terrorist Youssef Magied Molgi and has had contact with Italian

authorities concerning the case. See D.E. 2482 (Exhibit "E").


Clearly, the information concerning the possibility that Iraq enlisted

mercenaries to commit the bombing of the Murrah Building was relayed and

generated by people who should know. The phone call originally came to the

ex-CIA official, former Chief of Counterterrorism Operations for the Central

Intelligence Agency, who then notified Agent Foust. These men are dearly

familiar with such matters and their familiarity and background concerning

international terrorism should give weight to the information contained in

their reports and the fact that an official telephoned Foust and the CIA

immediately after the receiving the phone call from Saudi Arabia is strong

evidence he did not consider the Saudi General "untrustworthy".

2. State Sponsorship Precedent:

There is ample precedent supporting the assertion as alleged here that

terrorists sponsored by foreign states recruit American citizens for the

purpose of engaging in terrorists acts here in the United States. Such

countries include Iran and Libya.

Libyan efforts to recruit American citizens, particularly black Muslims, are

documented in the Federal Reporter in United States v McAnderson, 914 F.2d

934 (7th Cir. 1990). The McAnderson case involved the prosecution and

convictions of members of a Chicago street gang called the El Rukus,

convicted for conspiracy to commit terrorist acts throughout the United

States in exchange for payment from the Libyan government. Id. at 938. Upon

hearing that Louis Farrakhan had received $5 million from the Libyan

government, the leader of the El Rukns actively sought sponsorship from

Libya in exchange for an in kind amount of money. Members of the El Rukns

actually traveled to Libya to meet with military officials of the Libyan

government. Id. at 939.

The El Rukns sought to impress the Libyans and to demonstrate the depth of

their commitment by discussing specific terrorist acts, among them

destroying a government building, planting a bomb, blowing up an airplane,

and simply committing a wanton "killing here and a killing there" to get the

Libyans' attention. Eventually, the leader of the El Rukns decided that the

Libyans would only be impressed by the use of powerful explosives. Id. at

940. The El Rukns attempted to obtain hand-held rockets and rocket

launchers, LAW rockets, meaning "Light Anti-Tank Weapon" but were ultimately

intercepted by the FBI and


Similarly, Iran, a well-known sponsor of international terrorists, is

believed to have recruited Americans to commit acts of terrorism here in the

United States. ABC News' 20/20 program has investigated this aspect of

Iranian support for terrorism here in the United States and in the first

quarter of last year aired a report concerning David Belfield, a/k/a Daoud

Salahuddin. See D.E. 2482 at 16. According to the ABC News story, Salahuddin

was born in North Carolina, but grew up in Bayshore, Long Island. Although

both of his parents were university graduates, Salahuddin believed that

because of his father's race, African/American, his father could not find

employment other than menial jobs, e.g., a security guard, bartender,

bouncer, etc. Id. at 17.

Salahuddin began studies at Howard University in 1969 where he was attracted

to the Islamic movement on campus. He adopted Islam as his faith and soon

was leading student protests and looking for an alternative to the rules of

white America.

Tom Jarriel, the 20/20 correspondent reporting this story, stated that U.S.

authorities now believed that other young American males have been recruited

by the Iranians. The Iranians utilized colleges and prisons to recruit young

black men, indoctrinated them into the Islamic faith, and convinced them

that, if necessary, they must use any means necessary, including deadly

force, for the sake of their religious or spiritual leader. Jarriel located

Salahuddin through the National Security News Service in Washington, D.C.,

and also through a retired detective located in Washington, D.C. They

eventually met Salahuddin in Istanbul, Turkey and Jarriel claimed that he

was in possession of police intelligence reports indicating that Iran has

recruited in the United States Americans for "home grown terrorism".

In 1980 while Americans were being held hostage in Iran, a former Iranian

Embassy official was the leading political opponent of the Ayatollah Khomani

in Washington, D.C. The official was popular politically and socially in the

United States and was often seen on American television supporting the

Washington agenda and advocating Khomani's overthrow. He was assassinated by

Salahuddin in 1980 after Salahuddin paid off a postman with $500 to allow

him to allow him to use a postal service jeep and gain access to the

official's home. Under the guise of having a package that the official must

sign for, Salahuddin shot the official three times in the chest After the

killing Salahuddin then fled to Iran, the country that had provided the

money and the orders for the assassination, and thereafter traveled around

the Middle East visiting various international hot spots and associating

with other terrorists. Salahuddin assumed that the order to commit the

assassination was issued by the Revolutionary Council in Iran.

These two examples are simply what counsel has been able to find in the

public record. Counsel, of course, does not have access to intelligence

information of this nature but believes that such recruitment by foreign

states which sponsor terrorism is not unusual. That is the working defense

hypothesis in this case. The Iranians seem to target young idealistic black

males and indoctrinate them to the teaching of Islam in order to "turn" them

against the U.S. government. These people are targeted because their

ideological compass is preset against the federal government. The same can

be said for neo-Nazis and/or white supremacists. Although the white

supremacist community are diametrically opposed to that of black Muslims, it

is a well known fact that both share a common hatred for the federal government.

In addition, the United States government has been aware for many years that

intelligence agents of foreign nation-states operate in the United States in

furtherance of foreign interests against United States citizens. These

concerns were brought before Congress in a still classified top secret staff

report prepared for the Senate Foreign Relations Subcommittee on

International Operations. See D.E. 2482 (Exhibit "I"). Portions of this top

secret report were made public by the press and published by the Washington

Post in 1979. The report analyzes the thorny foreign relations problem

concerning illegal actions on the part of foreign intelligence agents

against citizens in the United States. The government seeks a balance

between enforcing domestic laws, even against foreign intelligence agents,

and foreign policy concerns and recriminations against U.S. intelligence

agents in other countries.

Although the major story at this time this report was made public in 1979

involved the Iranian security organization SAVAK, whose agents had been

trained in surveillance and other espionage techniques by the CIA, and

SAVAK's plan in early 1977 to assassinate Nasser Afshar, an Iranian-born

U.S. citizen who angered SAVAK by taking out ads in U.S. newspapers

denouncing the Shah of Iran, other foreign powers operate in the United

States as well. D.E. 2482 at 19.

The subcommittee report, according to the Washington Post, examined cases of

harassment and surveillance as well as suspected assassination plots against

United States citizens by the intelligence agencies of Chile, Iran, the

Philippines, the Republic of China (Taiwan), the former Soviet Union, and

Yugoslavia. To choose just one example, the Iranian SAVAK, at the peak its

influence under the Shah, had at least 13 full-time case officers running a

network of informers and infiltration covering 30,000 Iranian students on

United States college campuses. The head of the SAVAK agents in the United

States operated under the cover of an attache at the Iranian Mission to the

United Nations, with the FBI, CIA, and State Department fully aware of these


Thus, the presence of foreign intelligence operatives in the United States

is a fact of international foreign policy and for such operatives to carry

out the policies of their foreign sponsors is not unusual.

D. Israelis Present at the Bomb Site.

The defense has obtained a memorandum of an interview with a high ranking

Israeli security figure. See D.E. 2482 (Exhibit "J"). This memorandum

confirms the following:

1. The source, who aids the Prime Minister on matters of counterterrorism,

confirmed that Israel gave a general warning to the United States shortly

before the bombing.

2. The United States approached Israeli "for consultations" and advice

concerning the bombing.

3. Although Israel suggested that the bombing was not "Islamically

motivated", Israel conceded that the bombing could have been implemented

"borrowed methods" or could have been inspired by Islamic actions.

Israel in fact sent two experts, accompanied by the security officer of the

Israeli Embassy in Washington, D.C., to the bomb site.

5. Israeli authorities were clearly not pleased that information had leaked

of Israeli experts involvement in evaluating the bomb site.

6. The source, since the bombing, met with his American counter-part, Phil

Wilcox[l9], on a regular basis to "compare notes."



19 Wilcox is the U.S. State Department's coordinator for terrorism.


It is clear in the defense's view that the Israeli government sent its

experts to evaluate the bomb site with full knowledge of the United States

government. It is also clear in the defense's view that the one page report

submitted by the government is not the complete report of the two Israeli


Counsel sought and obtained permission from the District Court to travel to

Israel to investigate the presence of Israeli officials at the bomb site. In

order to avoid drawing attention to counsel's visit, counsel entered Israel

by a tourist bus over the Allenby Bridge (the King Hussain Bridge) on the

West Bank via Damascus and Amman and, once in Israel, contacted very senior

Israeli political figures in the late Prime Minister Rabin's government and

others who confirmed the presence of Israeli bomb experts at the Oklahoma

City bomb site. The defense has learned that two weeks after the bombing,

two Israeli officials toured the bomb site in collaboration with the ATF.

D.E. 2191 at 9. Their conclusion, as outlined in their report to the United

States government, was that the Oklahoma City bomb bore the indisputable

earmark of Middle Eastern terrorists.[20] The two Israelis are Dorom

Bergerbest-Eliom and Yakov (or Yaskov) Yerushalmi.



[20] The government failed to produce a copy of this report, or even

acknowledge the presence of Israelis in Oklahoma City--despite defense

requests for this information. See D.E. 2768 at 54; D.E. 1921 (Exhibit "C"

at 16). Instead, a Fort Worth television station interviewed Moshe Tal and

he stated that he was personally acquainted with the two Israelis who toured

the bomb site, that they had been in Oklahoma City and he had forwarded a

draft of a report to Cristi O'Connor of Channel 11. Not until this happened

did the government furnish a copy of the report to the defense, even though

the ATF had escorted the two men. The copy forwarded to the defense does not

mention a Middle East connection to the bombing. The defense believes that

the government has not forwarded a true copy of the entire report.


Bergerbest-Eliom was, at the time, Chief of Security for the Israeli Embassy

in Washington, D.C. Yerushalmi was a civil engineer whom has been described

as a "consultant" to the Israeli government. The undersigned counsel has

confirmed that these two individuals were in fact sent by Israel and did in

fact tour the bomb site. The two Israelis prepared a report on their

observations. Counsel for Defendant McVeigh has not obtained a copy of this

report but is informed that the report suggests details of the explosive

device and that the bombing is a "signature" of Middle Eastern terrorists.



E. A Subject of the Investigation in the Philippines.

A subject of the FBI and Grand Jury investigation ("Suspect I") has been

linked personally by a Filipino terrorist to convicted international

terrorists Ramzi Yousef[21] and Abdul Hakim Murad[22] as well as Philippine

terrorist groups.



[21] Ramzi Yousef was convicted in September in New York City of a

conspiracy to blow up 12 American jumbo jets in one day and he is currently

awaiting trial on an indictment charging him as the "mastermind" of the

World Trade Center bombing.

[22] Murad is a co-defendant of Yousef and told the FBI on April 19, 1995, a

Muslim group, the Liberation Army in the Philippines was responsible for the

bombing of the Alfred P. Murrah Federal Building.


The defense has learned of evidence suggesting a direct, personal link

between a suspect of the investigation and Ramzi Yousef, the "mastermind" of

the World Trade Center bombing according to a New York federal grand jury

indictment. D.E. 2482 at 1-2. The defense has recently learned, within the

last week, that three FBI agents are in the Philippines and have contacted

the Philippine National Police Intelligence. The FBI is investigating

Yousef's activities in the Philippines, including reports of terrorist

training in Batansas.

Defense counsel have interviewed in the Philippines a known terrorist in the

custody of the Philippine government. The purpose of the inquiry was to

determine his knowledge of foreign "mail-to-order bride" businesses[23] and

any links between that group and criminal activity in the Philippines and/or




[23] These businesses introduce American males to Filipinas who are

ostensibly "tour guides" for the visiting foreigners.


During the course of this interview, (D.E. 2482, Exhibit "L"), the

individual relayed the following:

a. There were definite criminal connections to the mail-to-order bride

business in the Philippines;

b. He was able specifically to identify a photograph of an individual

engaged in smuggling activities;

c. He identified terrorist training as coming from the International Islamic

Academy at Peshawar Pakistan which has been funded in the past by Saudi

Arabia and other countries;

d. Targets of the Academy are "rich nations in Europe and Asia and the U.S.";

e. The contact between foreign terrorists and local Muslims was generally

initiated when local Muslim students came to know students from other

schools at various international academies;

f. He stated that Ramzi Yousef is also known as Abdul Basit and he

identified two other members of Ramzi Yousef's organization including Abdul

Hakim Murad, a codefendant of Ramzi Yousef, who told a security officer at

the detention center in New York that the Liberation Army was responsible

for the bombing in Oklahoma City (see D.E. 2482 Exhibit "M");

g. He specifically identified J.S., an individual that the defense has

learned knew or knows a subject of the investigation and has visited in the

subject's home in the Philippines. J.S. has been identified as an arms

dealer for the Moro Liberation Front, a terrorist organization in the


h. He was specifically interrogated as to what other bombing incidents after

New York were attributed to Muslim terrorists and he specifically cited the

bombing in Oklahoma City and the Saudi Arabia bombings;

I. He also told counsel he knows personally a subject of the investigation.

He met the subject and J.L sometime in 1992 or 1993 at the vicinity of Del

Monte labeling factory in Davao, Philippines. This was before the New York

City bombing. He (identified in the report as "No. 3") said that the subject

introduced himself as a "farmer." At that time, he said that his companions

were Abdul Basit (Ramzi Yousef), Wali Khan and Abdul Hakim Murad. They all

conferred with J.L and the subject." Yousef, Khan, and Murad were convicted

on September 5, 1996, in New York of conspiracy to blow up 12 U.S. jetliners

in a plot planned in the Philippines;

j. Because the person interviewed (No. 3) identified himself as knowing that

the subject of the investigation "introduced himself as a farmer," he was

asked to reduce his statement to writing and he did so. A copy of the

written statement is found at D.E. 2482 (Exhibit "N"). His written statement

identified three subjects discussed at the meeting where Ramzi Yousef and

the subject of the investigation among others were present. These subjects

were 1) bombing activities; 2) providing firearms and ammunition; and 3)

training in bomb making and handling;

k. He was also asked about the statement of Abdul Hakim Murad that the

Oklahoma bombing was the handy work of the Liberation Army. Mr. Murad was a

codefendant to Ramzi Yousef in the Philippine airline bombing case in

federal court in New York. (Ramzi Yousef was also charged by separate

indictment as the leader of the attack on the World Trade Center bombing

which involved a Ryder truck carrying a fertilizer bomb). Specifically, He

was asked "What was the identification of Liberation Army referred to by

Murad?" See D.E. 2482 (Exhibit "M"). He stated, according to the interview,

"It was the Palestine Liberation Army and/or the Islamic Jihad which Murad

was referring to. . . . This army is associated with Hamas and based in

Lebanon, he added." Id.

l. He also placed the meeting of the subject and J.L with Murad and Ramzi

Yousef in Davao and noted, "It was also the place where Muslims were taught

in bomb making." This statement tends to be corroborative of the

truthfulness of the Filipino terrorist because the defense has interviewed

two individuals who claimed that the subject asked them if they knew anyone

who made bombs, and one individual confirmed to a friend of his that the

subject had with him a book on making explosives. See D.E. 2482 (Exhibit "K"

at 10, 12);

m. There are a number of factors that indicate that the Filipino's statement

is truthful. First, he has no reason to lie as he is a cooperating witness

with the Philippine investigation, and there is sufficient documentation to

indicate that he was the co-founder and second-ranking member in Ramzi

Yousef's organization, Abu Sayyaf. See D.E. 2482 (Exhibits "S" and "M"). His

statement that Muslims were being trained in Pakistan at a charitable

organization through the international Islamic academy is consistent with

the intelligence information of the Saudi Arabian General that Iraq had

hired Pakistanis who might not know they were actually operating on behalf

of Iraq. The use of an intermediary, i.e. the International Islamic Academy,

and Islamic charity organizations would certainly disguise the role of Iraq.

See D.E. 2482 (Exhibit "U").

His statement that the United States is a target country is hardly

surprising. The dates that he claims to have seen the subject of the

investigation are consistent with the subject being in the Philippines (see

D.E. 2482 (Exhibit "V')), and his statement that the subject identified

himself as a "farmer" is likewise corroborative. Perhaps most important the

fact that he saw them near a place where Muslims make bombs is consistent

with statements by other witnesses who claim that the subject had a book on

bomb making with him and wanted to know how or where he could find someone

that knew how to make bombs. See D.E. 2482 at 25. In addition, the Filipino

identified correctly Yousef's real name as Abdul Basit. See D.E. 2482

(Exhibit "W").

Finally, the arrest of McVeigh and Nichols is not necessarily inconsistent

with this report. The district court has correctly summarized in the past

that the defense theory is that once McVeigh was arrested, the government

ceased pursuing an international connection because the arrest of McVeigh,

and later Nichols, would seem to preclude a foreign involvement. However,

material the defensne [sic] has submitted to the district court, indicates

that there is a relationship between neo-Nazis in this country and foreign

terrorist groups in Iraq and the Philippines. Moreover, the subject's

actions as articulated at D.E. 2482 (Exhibit "AA") are entirely consistent

with his seeking to find assistance in the Philippines on how to make a bomb.

The fact that Murad, while in custody, is a co-defendant and a close

associate of the alleged ringleader of the bombing on the World Trade Center

(and not incidently [sic] also the federal building in Manhattan) were a

Ryder truck was used to carry a fertilizer bomb is also highly relevant. The

materials also indicate that terrorist groups in the Philippines have been

trained in Pakistan, and that some of these same Pakistanis fought in

Afghanistan. See D.E. 2482 (Exhibit "X").

The revelations by the New York Times that the FBI was pulling out of the

investigation in Saudi Arabia because of lack of cooperation by the Saudi

government further tends to support this intelligence information. See D.E.

2482 (Exhibit "Y"); see also Exhibit "Z" (discussing the anti-American

climate in Saudi Arabia). The Saudis would be greatly embarrassed if it

should develop that either directly or indirectly they have been financing a

training area of terrorists in Pakistan, which may have led to deaths of

Americans, or they may simply fear that they will be upsetting Iran or Iraq

if the finger of suspicion of the investigation should point specifically to

those two governments. The important point is these reports from the

Philippines inferentially support the Saudi intelligence report.

The arrest warrant of Abraham Ahmad as a material witness makes reference to

three Middle Eastern men running from the Murrah building shortly after the

explosion. See D.E. 2482 (Exhibit "EE" at 1). Several eye witnesses,

including the next to last survivor pulled from the wreckage, have

identified an "olive complected" dark haired man (variously described as

Middle Eastern, Indian, Hawaiian) as being the driver and/or occupant of a

Ryder truck shortly before the explosion and seen outside the Murrah

Building. The FBI authorized an All Points Bulletin ("APB"), which was

broadcast on police radio, seeking information about a full-size brown

pickup truck occupied by Middle Eastern males. See D.E. 2406 (Exhibit "C").

The subject of the investigation was present in the Philippines in November,

1994 until January, 1995. During this same period of time, Ramzi Yousef was

also in the Philippines. See D.E. 2763 at 22. Yousef and two co-defendants,

Abdul Hakim Murad and Wali Khan Amin Shah, were convicted on September 5,

1996 in New York City with conspiring to blow up eleven (11) United States

jetliners. Yousef is generally regarded as the mastermind behind the World

Trade Center bombing and the government plans to try him for that crime. Id.

at 15.

Vince Cannistraro, the former Chief of Counterterrorism for the CIA (D.E.

2406 (Exhibit "B")), authored an article which appeared in The Boston Globe

in April of 1995, suggesting the probability of foreign terrorist

involvement, particularly Iraq, in the Oklahoma City bombing, while

observing its similarity to the World Trade Center bombing. Cannistraro

wrote, "Yousef had carefully prepared his escape, leaving under another name

from New York the evening of the bombing. He abandoned his comrades to the

police. If the Oklahoma bombing follows the same pattern, the foreign

sponsors will have covered their trail carefully, leaving only the support

cells of local adherents to face the prosecutor." D.E. 2406 at 3.

Ramzi Yousef was a Pakistani terrorist based in the Philippines. D.E. 2763

at 15-16. The Philippines is also the base camp for the Abu Sayyaf Group

(ASG). Id. Abu Sayyaf consists of between 500 and 600 fighters and is funded

by radical Middle Eastern Muslims. D.E. 2191 at 21; see general) D.E. 2763.

ASG was formed in 1991 and is based on the Philippine island of Mindanao,

which is a largely Muslim region which has been for all intents and purposes

at war with the Philippines for regional autonomy. Abu Sayyaf has been

linked to an international terrorist cell which is alleged to have plotted

the assassination attempt on Pope John Paul II when he visited the

Philippines in January, 1995. Ramzi Yousef made contact with the Abu Sayyaf

Group in the Philippines through his "Afghan connections." Id.

It has been reported reliably by Jane's Intelligence Review, a highly

respected source for intelligence information, that "by all accounts,

[Yousef] had ambitious plans to intensify his own Jihad against the U.S.A."

In addition to the plot to assassinate the Pope, Yousef and his team,

together with Abu Sayyaf support, were planning to attack the U.S. Embassy

and other facilities throughout Asia. The bombing of Philippine Airlines

Flight 434 on December 11, 1994 was simply a "test run" to smuggle a bomb

through the Manila Airport. Id.

Abu Sayyaf's funding includes support from Muslim billionaires in the

Persian Gulf including Osama bin Laden. Id.; see also D.E. 2763 at 17. Arab

intelligence sources report that Osama bin Laden's funding of Islamic

terrorist groups is "considerable" and is conducted through several

companies he owns in Africa, Europe and the Arab world. During the Afghan

War, bin Laden was a "driving force" behind recruiting young Muslim zealots

to join the Mujhedeen and he operated out of the northwest frontier province

of Pakistan along the Afghanistan border. Bin Laden became a close associate

of Sheikh Omar Abdullah Rahman, the blind Egyptian cleric who has been tried

in New York and whom U.S. authorities believe is a kingpin in an

international Islamic terrorist network. Id.

In February, 1995, United States authority named bin Laden and his Saudi

brother-in-law, Mohammed Jamal Khalifa, among 172 unindicted co-conspirators

with the eleven (11) Muslims charged for the World Trade Center bombing and

the associated plot to blow up other New York landmarks. At the time Khalifa

was linked to the World Trade Center bombing, he was already in prison in

San Francisco because his visa was revoked on the grounds that he had failed

to disclose when he obtained it in Jiddah, Saudi Arabia and that he was

wanted in Jordan for a series of bombings carried out in Amman in 1993.

Incredibly, Khalifa's presence in California went unnoticed until Abu Sayyaf

attacked the Christian town of Ipil in April, 1995. Id. Philippine

intelligence documents indicate that Khalifa, who had at one time ran a

Muslim religious center in the Philippines, was linked to Islamic

organizations in a number of countries, including Iraq and Jordan. Khalifa

was deported to Jordan and was cleared of all charges. Id. at 22.

While the brother-in-law of one of the financier's of Abu Sayyaf was being

deported by the Americans after spending time in solitary confinement in a

prison in San Francisco, one of Ramzi Yousef's co-defendants, Abdullah Hakim

Murad, then on trial in New York City for conspiracy to blow up American

airliners, readily admitted to a prison guard that he was a member of the

Liberation Army, and that the Liberation Army was responsible for the

bombing of the Murrah Building in Oklahoma City. Id. at 22-23.

The prison guard had asked Hakim Murad what he thought about the bombing

when it was reported on the radio, and, according to a FBI 302, Murad

responded to the guard's question by stating that the Liberation Army was

responsible for the bombing and, a short time later, confirmed in writing

that the Liberation Army was responsible for the bombing of the Murrah

Building in Oklahoma City. Id.

The manager of the Great Western Inn at Grandview Plaza, Kansas, told the

FBI that he observed the composite sketches of John Doe #1 and #2 when they

were released, and stated that one of the sketches looked like a man who had

checked into the motel on Monday, April 17, 1995 or Tuesday, April 18, 1995,

the same time Tim McVeigh was staying at the Dreamland Motel. According to

Mistry, the man was driving a Ryder rental truck which he parked in front of

the motel and the man reminded Mistry of a "Moslem" and had a Middle Eastern

accent. Mistry advised the FBI that the composite sketch of John Doe #2

"looked just like the man he described as having checked into the Great

Western Inn on April 17, 1995 or April 18, 1995." D.E. 2191 at 23.




A. Introduction.

Defendant McVeigh has compiled an indelible paper trail in attempting to

obtain information in the possession of the federal government, particularly

the intelligence agencies, which is relevant and material to his defense.

Counsel for Defendant McVeigh does not lightly come before this Court

seeking intervention in these matters; but there can be only so many

requests, so many demands, and so many pleadings filed requesting this

information before it becomes apparent to counsel that there is no effective

way, absent court intervention, to obtain the necessary materials to

construct a defense in this capital case.

So that the record is complete, and that the Court has confidence that the

present Motion is filed out of legitimate exasperation as the result of

being stonewalled for over a year since the return of the indictment,

counsel for Defendant McVeigh invites the Court to review the following

chart and accompanying materials, most of which may be found and perused in

the separately bound appendices at D.E. 1921, 1922 and 1923. Defense efforts

to obtain this material includes the following:





August 10, 1995

Defendants Timothy McVeigh and Terry Nichols were

indicted on one count of conspiracy to use a weapon of

mass destruction, one count of use of a weapon of mass

destruction, one count of destruction by explosives, and

eight counts of first degree murder.


August, 1995

Counsel for Defendant McVeigh engages in discovery

conversations and negotiations with counsel for the

government concerning the production of exculpatory

information. However, nothing is reduced to writing.

These negotiations occurred within a few weeks after the

return of the Indictment.


August 21, 1995

In a lengthy letter addressed to Joseph Hartzler, Special

Assistant United States Attorney, from defense counsel

for Mr. McVeigh, the defense pleaded the case with the

government for a change of venue and for "full, complete

discovery furnished to the defendant of all grand jury

transcripts, 302's, witness statements, plea agreements

and immunity deals, tangible evidence, tangible

documents, scientific reports to the defendant as quickly

as possible[.]" See D.E. 1921 (Vol. I Exhibit "D" at



November 2, 1995

Letter to Joseph H. Hartzler, Patrick Ryan and Larry

Mackey, addressing defense concerns over the

production of forensic evidence, documentary evidence

and witness statements. This letter pointed out that there

had been "zero production of exculpatory evidence" and

requested specifically exculpatory evidence and Rule 16

material. See D.E. 1921 (Vol. I Exhibit "E").


November 6, 1995

Defendant McVeigh's first written request for specific

Brady information in a letter addressed to Joseph Hartzler.

This request consisted of 60 paragraphs of specific

requests for categories of exculpatory information over 10

pages in a letter directed to the lead counsel for the

government prosecution team. The letter noted that the

request was made because the government had failed to

produce any exculpatory evidence to the defendant, even

though Mr. McVeigh was arrested more than 6 months

prior to the date of the letter, and indicted almost three

months prior to the date of the letter. The defense team

was finding out the possible existence of exculpatory

information from the media rather from the government. In

paragraph 3 on page 3. Defendant McVeigh requested

specifically any statements. Reports or memoranda tending

to indicate that the Murrah Building was a target of

terrorists which were generated prior to or

contemporaneous with the bombing on April 19. 1995.

Paragraph 18 on page 4 specifically requested material and

reports of investigations regarding the bombing of the

Murrah Building compiled by agencies other than the FBI

including the BATF, the Central Intelligence Agency, the

Army C.I.D., the National Security Agency, the Defense

Intelligence Agency, and the Drug Enforcement

Administration, the Department of Defense, etc. In

paragraph 47 on page 8. defense counsel for Mr. McVeigh

requested specifically any and all intelligence reports in the

possession of or generated by, any foreign government

which were material to the identity of the perpetrators of

the Murrah Building bombing. See D.E. 1921 (Vol. I

Exhibit "F').


November 8, 1995

Letter from defense counsel to Joseph H. Hartzler setting

out specifically the provisions of Federal Rule of Criminal

Procedure 16(a)(1)(C) which provides that, upon request

of the Defendant, the government shall permit the

Defendant to inspect tangible objects which are material to

the preparation of the defense. Defense counsel requested

specifically "all remaining photographs, books, papers,

documents, tangible objects not previously furnished to us".

See D.E. 1921 (Vol. I Exhibit "G").


November 13,1995

Letter from defense counsel to Joseph H. Hartzler and

Patrick Ryan outlining the practice of discovery in criminal

cases for the United States District Court for the Western

District of Oklahoma (where this case was then being

heard) and followed by District Judges Russell, Leonard,

Thompson, Cauthron, and Miles LeGrange. The local

practice was to routinely grant permission to defendants

to inspect, copy or photograph evidence favorable to the

defendant within the meaning of Brady and Giglio and

their progeny. Exculpatory evidence is typically delivered

to the defense within 10 days after an entry of a not guilty

plea. Defense counsel set out in detail a portion of the

opinion by former Chief Judge Fred Daugherty as

reported in United States v. Penix, 516 F. Supp. 248,

255 (W.D. Okl. 1981) in which Judge Daugherty

outlined the local practice concerning discovery pursuant

to Rule 16 and Brady. Defense counsel requested

specifically copies of the notification the government

presumably had sent to law enforcement agencies with

respect to Brady, Giglio, and Rule 16, specifically the

Criminal Investigation Division of the Armed Forces, the

Criminal Investigation Division of the Department of

Defense, the Defense Investigative Agency, the Central

Intelligence Agency. and other foreign and domestic

agencies. Defense counsel further noted that although the

first specific written request for Brady occurred

November 6, 1995, the defense had nevertheless

consistently requested orally that the government produce

exculpatory evidence. Finally, counsel stated specifically

that the defense recognized the possible tendency in this

case, given sensitive national security issues and the

existence of other possible conspiracies to damage

federal property, to withhold information from the

defense, but that the defense would address those

concerns and protect appropriately the government's

intelligence gathering activities. See D.E. 1921 (Vol. I

Exhibit "H").


November 20, 1995

Letter to Joseph H. Hartzler and Patrick Ryan consisting of

Defendant McVeigh's third written request for exculpatory

information on behalf of Defendant Timothy McVeigh. The

defense requested specifically "copies of reports, witness

statements, telex messages, cables, fax messages,

photographs, intelligence summaries which relate or contain

information which would indicate or suggest the possibility.

likelihood and/or possibility that individuals or organizations

or a single individual either in this country or abroad was

planning or did execute action against the United States, its

property or employees or American civilians in retaliation

for" and then a lengthy list of specific events. See D.E. 1921

(Vol. I Exhibit "I").


November 21, 1995

Letter to Joseph Hartzler taking issue with Mr. Hartzler's

statement that the FBI 302's containing statements from

Eldon Elliott, Vicki Beemer, and the Fortiers did not contain

exculpatory information. Defense counsel addressed directly

concerns that the government's definition of "exculpatory

information" under Brady was unduly restrictive. See D.E.

1921 (Vol. I Exhibit "J").


December 7, 1995

Defendant McVeigh's Report to the Court concerning the

government's failure to produce discoverable evidence in

accordance with the Court's Order of August 23, 1995,

Rule 16 and the Brady decision. Defense counsel set out

specifically concerns relating to the government's failure to

seek discovery material from law enforcement agencies

other than the FBI, specifically the intelligence agencies

including the Central Intelligence Agency, the Criminal

Investigation Divisions of the Armed Forces and the

Department of Defense, the National Security Agency, the

Defense Intelligence Agency and other federal, state and

foreign investigative/intelligence agencies. See D.E. 1921

(Vol. I Exhibit "K" at 14-15). In this pleading, defense

counsel observed the absurdity of the prosecutors in this

case seeking a court order to obtain information from the

Bureau of Prisons--a component of the Department of



December 21, 1995

Defendant McVeigh's Motion to Require the

Government to Produce Exculpatory Evidence to Assist

the Defendant, Timothy James McVeigh, in Establishing

His Claim That He Is Not Guilty of the Offense Charged

Against Him in the Grand Jury Indictment. This document

set out in detail over 177 paragraphs encompassing 89

pages of specific and general requests for exculpatory

information. Included in these requests were information

of other suspects, see page 56, as well as information in

the possession of a multitude of intelligence and law

enforcement agencies. See D.E. 1922 (Vol. II Exhibit "L"

at p. 84).


February 15, 1996

Letter to Beth A. Wilkinson regarding outstanding issues

relating to discovery. This letter underscored the

defense's frustration with the government's production of

discovery, particularly Brady and Giglio items and

requested yet again specific reports generated by the

Central Intelligence Agency, the Criminal Investigation

Divisions of the various components of the Department of

Defense, the National Security Agency, the Defense

Intelligence Agency, the Bureau of Intelligence and

Research of the State Department, the Office for

Combatting [sic] Terrorism of the United States

Department of State, the National Security Council, the

Department of Defense Special Operations Agency, and

other domestic and foreign law enforcement agencies.

See D.E. 1923 (Vol.III Exhibit "M").


February 15,1996

Letter to Beth A. Wilkinson requesting additional Brady

material containing information concerning, among other

things, information about the German Andreas Strassmeir

and any connections with neo-Nazi or other white

supremacist organizations. See D.E. 1923 (Vol. III

Exhibit "N").


March 8, 1996

Defendant McVeigh's Motion for Disclosure of

Discoverable and Exculpatory Intelligence Collected by

the Central Intelligence Agency, the National Security

Agency, the Departments of Justice and State, and Any

Other Intelligence Gathering Agencies, Rule 16

Material and Brief in Support. This pleading set forth

31 paragraphs of specific discovery requests from

specifically named intelligence agencies, and provided

the factual and legal basis for the request. See D.E.

1923 (Vol. III Exhibit "O").


April 8, 1996

Specification of Materiality and Relevance ofNational

Security Information as it Relates to the Defense of

Timothy McVeigh (Ex Parte and Under Seal). This

document, which the Court has reviewed, exparte and

under seal, provided the factual basis, including the

defense hypothesis for the prior request for national

intelligence information filed March 8, 1996. See D.E.



April 9, 1996

Supplemental Motion to Motion for Disclosure of

Discoverable and Exculpatory Intelligence Collected by

the Central Intelligence Agency, the National Security

Agency, the Departments of Justice and State, and Any

Other Intelligence Gathering Agencies, Rule 16

Material and Brief in Support. See D.E. 1236.


April 24, 1996

Defendant McVeigh's Supplemental Specification of

Materiality of Requested Classified Information (Filed

Ex Parte Under Seal). See D.E. 1309.


April 29, 1996

Memorandum Opinion and Order on Motions for

Production of Classified Information by Chief Judge

Richard P. Matsch. See D.E. 1310.


May 6, 1996

Letter to Joseph H. Hartzler concerning an article in

Strategic Investment magazine which referenced a

classified Pentagon study concerning the bombing of the

Murrah Building. This letter requested information

concerning this classified study. See D.E. 1923 (Vol. III

Exhibit "P").


May 8, 1996

Letter to Joseph Hartzler in response to this Court's Order

of April 29, 1996, recommending that defensecounsel

submit a direct request to government counsel to search for

information which would most likely be classified and in the

possession of the National Intelligence Agencies. This letter

consists of 16 pages of single-spaced specific requests

encompassing 53 separate paragraphs. Specifically

mentioned is any and all "follow up" information generated by

the governmentt to verify or corroborate th information

provided by Vincent Cannistraro indicating that Iraq may

have sponsored the bombing of the Murrah Building which

was found by defense counsel buried in the mounds of

"non-pertinent" documents. See D.E.1923 (Vol. III Exhibit



May 23, 1996

Letter to Joseph Hartzler reiterating a multitude of specific

Brady requests, and requesting information possibly

provided by the governments of Israel and Kuwait

concerning possible terrorist acts against this country around

April 19, 1995, and Oklahoma City specifically as a

potential target. See D.E. 1923 (Vol.III Exhibit "R").


June 14, 1996

Mailing en masse to 30 federal intelligence/law enforcement

agencies and a host of other various state investigative/law

enforcement agencies requesting material pursuant to Rule

16 and Brady and to which was attached a copy of this

Court's April 29, 1996 Memorandum Opinion and Order on

Motions for Production of Classified Information and the

May 8, 1996, letter to Joseph Hartzler enumerating 53

paragraphs of specific discovery requests. See D.E. 1923

(Vol. III Exhibit "S"). This mailing went out when, after 45

days, the government had produced to the defense nothing

had been received pursuant to the Court Order of April 29

as it related to the national intelligence data.


July 3, 1996

Letter to Joseph H. Hartzler requesting information

concerning applications and orders filed in the Foreign

Intelligence Surveillance Court and material obtained

therefrom constituting Brady or Rule 16 material and as it

relates to the bombing of the Murrah Building. See D. E.

1923 (Vol. III Exhibit "T").


August 22, 1996

Motion to Compel Production of Additional Intelligence

Information and Memorandum to the Court Concerning

Violation of the Government's Duty to the Defendant

Under Brady and This Court's Order of April 29, 1996,

Respecting National Intelligence Information. See D.E.



August 27, 1996

McVeigh's Motion to Compel the Production ofMaterial

and Exculpatory Classified InformationPursuant to Rule

16 and Brady. See D.E. 1918; D.E. 1921 (Appendix

Vol. I); D.E. 1922 (Appendix Vol. II); and D.E. 1923

(Appendix Vol. III).


August 27, 1996

McVeigh's Second Supplemental Specification of

Materiality of Requested Classified Information ExParte

and Under Seal. See D.E. 1929.


August 29, 1996

Supplemental Memorandum to the Court Regarding

Motion to Compel Production of National Intelligence

Information. See D.E. 1936.


September 3, 1996

Sealed Affidavit of Stephen Jones in Further Support of

Motion to Compel Release of National Intelligence Data,

Third Supplementation of Specification of Materiality and

Developments Filed Ex Parte and Under Seal. See D.E.



September 30, 1996

Defendant McVeigh's Supplemental Discovery Requests

for National Intelligence Information. See D.E. 2175.


October 1, 1996

Defendant McVeigh's Fourth Supplemental Specification

of Materiality of Requested Classified Information

(ExParte and Under Seal). See D.E. 2191.


October 10, 1996

McVeigh's Amended Motion to Compel the Production

of Material and Exculpatory Classified Information

Pursuant to Rule 16 and Brady (Supplemental Requests).

See D.E. 2265.


October 31, 1996

Defendant Tim McVeigh's Statement of Materiality and

Specificity With Respect to His Amended Motion to

Compel the Production of Material and Exculpatory

Classified Information Pursuant to Rule 16 and Brady

(Supplemental Requests). See D.E. 2403.


October 31, 1996

Defendant McVeigh's Fourth Supplement of Specification

of Materiality of Requested Classified Information (Vol.

II). See D.E. 2406.


November 8, 1996

Fifth Supplemental Specification of Materiality of

Requested Classified Information. See D.E. 2482.


November 12, 1996

Defendant McVeigh's Supplemental Discovery Requests

for Classified Information. See D.E. 2490.


November 21, 1996

Supplemental Discovery Requests for Classified

Information by Timothy James McVeigh. See D.E. 2533.


December 11, 1996

Memorandum to the Court Concerning Discovery of

Classified Information as to Timothy James McVeigh. See

D.E. 2649.


December 27, 1996

Defendant McVeigh's Supplemental Memorandum to the

Court Outlining the Relevance and Materiality of Newly

Discovered Information From the Philippines, Israel and

the Middle East and Its Relevance to the McVeigh

Defense (ExParte and Under Seal). See D.E. 2763.


December 30, 1996

Supplemental Motion to Compel the Production of

Information in Possession of the Intelligence Agencies of

the United States and Enumerated Discovery Requests.

See D.E. 2768.


January 17, 1997

Motion for Reconsideration of Denial of Discovery

Material (Under Seal). See D.E. 2966.


January 21, 1997

Motion for Production of Evidence of Prior Warning of

the Oklahoma City Bombing Possessed by the Office of

Executive Secretariat at the Department of Justice by

Timothy James McVeigh. See D.E. 2984.


February 4, 1997

Motion to Compel Discovery Based Upon Newly

Discovered Information or in the Alternative Request for

Issuance of Subpoenas Duces Tecum Pursuant to Rule

17(c). See D.E. 3123.


February 26, 1997

Memorandum to the Court Regarding Motion to Compel

Disclosure of Certain Information and Reports as to

Timothy James McVeigh (Sealed). See D.E. 3313.


March 7, 1997

Defendant Timothy James McVeigh's Reply to the March

6, 1997, Response of the United States to McVeigh's

Motion for Additional Discovery (Sealed). See D.E. 3372.

Thus, the defense has requested information acquired by, and in the

possession of, the nation's intelligence and law enforcement agencies both

orally and in writing, and informally in written letters and formally in

written motions filed with the Court, since mid-August of 1995.




The trial judge below has devoted an extensive amount of judicial time to

discovery issues in this case, the issues have been thoroughly briefed and

argued in the district court and are the subject of two Court orders. See

D.E. 1310 and D.E. 3016. No criticism is intended here toward his diligence

or effort, but, in the spirit of effective advocacy, it appears to counsel

from a careful study of how the respondent trial judge has handled this

matter that he does not believe he has authority to enter orders compelling

compliance pursuant to Rule 16 or Brady. Rather, the district court seems to

have taken the position that these matters are to be resolved by the

prosecutors in this case and the district court will rely upon the

representations of the prosecutors on discovery matters. See, e.g., D.E.

3016 at 3; D.E. 3410 (Pre-Trial Hearing--Sealed--not provided to Defendant

Nichols, March 10, 1997, at 34).

However, it has become very clear to counsel that the prosecutors in this

case are simply not going to conduct a thorough search responsive to the

requests of defense counsel. For just one example, government counsel

candidly acknowledged that they had not requested information from the

intelligence agencies concerning Dennis Mahon. See D.E. 2519 (Hearing on

Motions--Volume V--Sealed, provided only to government and Defendant

McVeigh, November 14, 1996, at 310-11). Government counsel may believe, in

good faith, that none of the requested information is relevant, but the

perceptions of government counsel do not change the fact that the defense

has made an extensive showing of materiality and relevancy. This information

is vital to the defense. Without it, the defense is being denied the

opportunity to prove or establish that its client is not guilty. An order

from this Court is necessary so that there is no dispute, no "breathing

room," as to the scope of the government's obligations to provide discovery

material to the defense, and counsel requests respectfully a ruling as to

whether the defense has made a sufficient showing of materiality as to the

specific items requested.

The government does not deny that the bombing of the Murrah Building

initiated what was arguably the most massive and intensive investigation

into a criminal act in this nation's history. The government does not deny,

and based upon the information in the public record as manifested in

Defendant McVeigh's Motion for the Disclosure of Classified Information

(D.E. 1079), it cannot deny that the national intelligence agencies of the

United States government were involved and participated in the investigation

of the bombing of the Murrah Building, at least in the "preliminary

meetings." See D.E. 1238 (Vol. I Transcript of Hearing on Motions, April 9,

1996, at 92). The government has not denied that the intelligence and

investigative agencies of the United States government have compiled volumes

of information, some of which is classified, concerning the bombing of the

Murrah Building.

As to intelligence agencies, the government has assured the district court

and the parties to this case that these agencies simply do not possess any

discoverable information, other than "claims of responsibility". D.E. 1620

(Transcript of Hearing June 18, 1996 at 11314). The prosecutors in this case

are confident that the intelligence agencies possess no information which is

discoverable to Defendant McVeigh because they have "sent letters" to the

Central Intelligence Agency, the Defense Intelligence Agency, and the

National Security Agency, requesting "all material they had under Brady,

Rule 16 and Jencks Act and any information they had which would tend to show

that these defendants did not participate in the crime or that others

carried out the crime." D.E. 1238 (Vol. I Transcript of Hearing on Motions

April 9, 1996, at 51).

In addition, the prosecutors in this case have directed correspondence to

the Pentagon inquiring whether the Department of Defense has conducted a

classified study of the bombing of the Murrah Building. See D.E. 1923 (Vol.

III Exhibit "V"). The government has refused to provide defense counsel with

a copy of any of these letters sent to the intelligence agencies and to the

Pentagon. See D.E. 1923 (Vol. III Exhibit "W"). The defense therefore has no

way of knowing whether the letter stated correctly what the Defendant

requests and the government's duty pursuant to Brady; or whether these

letters are in reality a "wink and a nod," to these agencies and are

therefore simply empty, meaningless pieces of paper.

There are (at least) two (2) fallacies in the government's approach in

attempting to obtain discoverable information from the intelligence agencies

which undermine its assertions that the intelligence agencies possess no

discoverable information and which make the denials by government counsel

not creditable. The first fallacy is that counsel for the government

understands properly the contours of the Brady decision and its progeny,

that is, has a basic understanding of what the Supreme Court means when it

held that the government must disclose exculpatory information to the

defense in order for a criminal trial to be fundamentally fair. Because

counsel for the government has exhibited such an extremely restrictive

definition of Brady, and because it is the government counsel that frames

the requests in the letters to the intelligence agencies, the agencies could

in good faith respond negatively to the requests yet still possess

discoverable material necessary for a proper defense in this case.

The second fallacy, and also the most fundamental, is that the alphabet soup

of government, agencies which possess information responsive to defense

discovery requests are in effect, separate fiefdoms of the federal

government as opposed to a cohesive centralized federal government, and

simply do not consider themselves part of this litigation, subject to the

jurisdiction of the district court, or obligated in any way to respond to

the requests of the Department of Justice lawyers representing the

government in this criminal case. Each of these concerns will be addressed

in turn.

A. The Government's Restrictive Definition of Brady.

There is no dispute in this case that the government must furnish to the

defense information which is exculpatory and impeaching of government

witnesses and evidence as those terms are defined in Brady v. Maryland, 373

U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972). See

United States v. McVeigh, 923 F. Supp. 1310, 1313 (D. Colo. 1996). The

district court has articulated the obligations of the prosecutors to

disclose such evidence and has observed that "the individual prosecutor has

a duty to learn of any favorable evidence known to the others acting on the

government's behalf in the case, including the police." Id. at 1313 (quoting

Kyles v. Whitley, U.S. , 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995)).

The district court declined to enter an order compelling discovery on these

matters, in part, by relying upon the representations of government counsel

that the government had requested Rule 16 and Brady material from other

government agencies and that the government was "being careful" and would

"err on the side of caution producing more documents than we think would be

necessary to turn over." Id. at 1313. Leaving aside the compelling case to

be made that government counsel's statements were at best disingenuous which

is discussed in great detail in a pleading filed August 22, 1996 (see D.E.

1898), this Court should have no confidence in the government's

representations concerning its efforts to locate and identify information in

the possession of the intelligence agencies because 1) government counsel

view their obligations pursuant to Brady in an impermissibly restrictive

way, and 2) even assuming that the prosecutors are in tune with Brady, they

have no authority to compel other government agencies to produce

discoverable classified information and they are utterly powerless to act on

behalf of the entire United States government in complying with

constitutional and federal rules concerning discovery in this area.

The individual prosecutors in this case simply have no way to compel or

require such agencies to conduct any search or inquiry of their files or

investigative reports. There is no court order; just simply some Supreme

Court decisions that the agency bureaucrat has not ever read. It is one

thing to presume the good faith of Mr. Hartzler, but it is quite another

thing to presume the good faith of the CIA station chief in Israel or

Kuwait, or a research analyst at the NSA in Ft. Meade, Maryland.

In the April 29, 1996 Order (D.E. 1310), the district court stayed its hand

in issuing a direct order compelling disclosure of classified information

based upon the representations of government counsel. However, the district

court's reliance upon the government's representations presupposed that the

government counsel understands their duty pursuant to Brady and Rule 16 and

that they have the means and authority to perform that duty. Neither of

these presuppositions have proven


The district court, on the record, has expressed "concern" over statements

made by the government counsel with respect to the government's discovery

obligations pursuant to Brady and Giglio. See Transcript of Proceedings,

December 13, 1995, at 44 (in the Western District of Oklahoma, Case No.

CR-95-0110-MH), no docket number aligned. Government counsel had, on

November 21, 1995, submitted correspondence to defense counsel stating that

defense counsel's definition of

"exculpatory information" was "far broader than ours [the government's]".

See D.E. 1923 (Vol. III Exhibit "X").

In this letter, counsel for the government includes the astonishing sentence

that, "In my opinion, nothing the Fortiers, or Eldon Elliott or Vicki Beemer

said can fairly be characterized as exculpatory of your client." Id. Counsel

for Defendant McVeigh has provided the district court with this example on

several prior occasions, but its importance cannot be over-emphasized.

Government counsel may, in good faith, view his obligations pursuant to

Brady and Giglio in such a restrictive manner; but his view is clearly


Because the distract court was "concerned" that government counsel took a

restrictive view of their Brady obligations, the Court corrected government

counsel on the record as follows:

This word "exculpatory" has been misused a lot,

I think. Not here, but generally. It's like, "to

be exculpatory, it has to be something that proves

you're not guilty." That isn't the case. It's

something that may diminish the government's

evidence and the credibility of its witnesses.

(Transcript of Hearing, December 13, 1995 at 45 (Western District of

Oklahoma, Case No. CR-95-0110-MH), no docket number assigned).

The most telling and insightful statement made by government counsel in this

case concerning discovery then occurred after the district court made the

above statement. After the Court had explained the definition of Brady and

Giglio to government counsel, government counsel indicated in the very next

sentence that he simply disagreed with the Court. He stated, "You accept Mr.

Jones' definition, and I will abide by that, of course." Id. at 46. What

government counsel dearly meant was that he disagreed with the district

court's views concerning discovery and the government's Brady obligations,

but simply recognized the Court's authority to define and make legal

decisions in this case.

But the district court has declined to intervene in this protracted

discovery dispute and has declined to order directly the government to

produce exculpatory evidence. Thus, counsel for Defendant McVeigh

respectfully suggests to the Court that the prosecutors (and maybe even the

government) may be acting in good faith in complying with its discovery

obligations, but they are simply acting in

accordance with their own narrow view of their duty to disclose exculpatory

information and are applying their definition of Brady rather than the

Court's. Because, despite what the government says, the government's actions

have shown

this to be the case. There are other indications.

In June, 1996, the government produced to the defense a multitude of FBI

302's, including a sheet of paper regarding Serial #14838. See D.E. 1921

(Vol. I Exhibit "A"). This sheet of paper advised the defense that Serial

#14838 contained "classified material not associated with this case[.]" Id.

Yet on July 31, 1996, defense counsel again received this same sheet of

paper indicating that this "classified" material was not associated with

this case, but attached to this description was the two aforementioned FBI

302's that have been the sum and substance of the government's production

regarding classified intelligence information. Id. These FBI 302's could not

be more "associated with this case," more exculpatory of Defendant McVeigh,

or more relevant and material to a defense to the charges in the indictment;

and that is not to mention that the investigation of the information in

these 302's occurred on the day of the bombing--April 19, 1995--but were

"transcribed" on June 18, 1996, and provided to the defense July 31, 1996.

If this Court were to peruse D.E. 1923 (Exhibit "Y"), the Court would find

extensive details concerning neurotic fringe persons making fanciful

"confessions", and who are clearly unreliable and mentally unbalanced, while

finding not a word about information relayed by a very senior officer in the

intelligence community of a major American ally informing the United States

government that a foreign power perpetrated the bombing of the Murrah

Building. This is the type of petty gamesmanship that defense counsel has

come to expect from the government, it is fundamentally unfair to Defendant

McVeigh, it is contrary to this Court's explicit definition of Brady and

Giglio, and if it continues unabated, it will ultimately result in a

reversal of a conviction in this case should that occur.

Although the district court has recognized that the individual prosecutors

in this case bear the burden of disclosure. Defendant McVeigh ultimately

bears the risk of nondisclosure: his life. It is Defendant McVeigh whose

interests are really at stake in this discovery dispute. The only reason

that the individual prosecutors in this case have a duty of disclosure is to

vindicate Defendant McVeigh's constitutional right to a fair trial. Thus,

although the individual prosecutors are charged with the duty of disclosure,

the relative risks of non-disclosure are stacked against the Defendant

because the risk to the prosecution is reversal of a conviction and a

retrial, but the risk to Defendant McVeigh is his very life. The prosecutors

in this case are, and there is no other diplomatic way to articulate it,

trifling with the administration of justice in this capital case and this

Court must simply put a stop to it. Judicial oversight of the discovery

process in this case is the only method of assuring compliance. It is, we

respectfully submit, long overdue.

The fundamental misunderstanding and distortion of Brady by government

counsel is critical in this case because the only method by which they have

attempted to acquire classified intelligence information is through letters

sent to the various agencies, specifically the Central Intelligence Agency,

the National Security Agency, and the Defense Intelligence Agency, "asking

them for all

materials they had under Brady, Rule 16 and Jencks Act and any information

they had which tend to show that these defendants did not participate in the

crime or that others carried out the crime." See D.E. 1238 (Vol. I

Transcript of Hearing, April 9, 1996 at 51).

However, counsel can have no faith in these "letters" sent by government

counsel to the various intelligence agencies because government counsel have

a view of Brady that is at odds with the controlling legal authority. There

thus exists a situation whereby an intelligence agency could in good faith

respond negatively to an inquiry from government counsel, yet still possess

information that it

would be required to disclose under the appropriate definition of Brady and

that of the Supreme Court cases. Counsel for the government have refused to

provide the defense with a copy of their requests to the intelligence

agencies. See D.E. 1923 (Vol. III Exhibit "W"). The district court

explicitly declined to approve or disapprove the government's letters to the

intelligence agencies. See D.E. 2519 at 305. The district court articulated

its concerns, stating that the court was not going to provide a "shield" to

anyone by saying that the court has put its seal of approval on the letters.

Id. The court then recognized that it was the ultimate responsibility of

government counsel to produce discoverable information. Id. at 6.

Defendant McVeigh is thus forced to rely upon the "good faith" of the

government[24] to perform its disclosure obligations.



[24] The same government that seeks his conviction and execution.


But Defendant McVeigh will never be content under any circumstances to rely

upon the "good faith" of any agency of the United States government. The

United States government is a party opponent in this case, an adversary with

virtually unlimited resources, and is aggressively seeking to execute Mr.

McVeigh. Counsel for the government, and for that matter the personnel

staffing the agencies of the federal government, are litigants in this case,

they have a vested interest in this prosecution and in obtaining a

conviction and death sentence, it is in their interests to not disclose

information or to disclose as little as possible, and the defense will never

be content to "take their word for it" or rely upon their "good faith".

In the "ordinary" capital case, there may be no reason to question the good

faith representations of the prosecution or even the state government

(although the case law would certainly suggest numerous instances of

unjustified reliance or reliance misplaced or abused). But this is not an

ordinary case. This is a case where the government itself was the target.

Employees of the plaintiff were injured or killed. More than 15 government

agencies lost employees to death. Whole departments and regional offices

were destroyed, their work set back for months, in some cases years, and in

still other cases, can never be resumed.

Among these agencies were numerous law enforcement agencies, in fact, every

major federal law enforcement agency except the FBI. The ATF, Secret

Service, Drug Enforcement Agency and the Department of Defense, CID, and

even the Postal Inspectors (their building was catty-corner from the Alfred

P. Murrah Building) were involved as victims. Under these circumstances,

with 168 dead, 500 injured, and damage estimated at three quarters of a

billion dollars, it is not appropriate to rely upon their good faith, any

more than it was appropriate to rely upon Oklahomans as jurors, and for the

same reasons.

These government agencies do not honor the presumption of innocence, and

they are not going to help the defense provide our client with a fair trial.

They just are not. The drum beat of prejudicial leaks, courthouse

video-taped walkouts, presidential press conferences, and indeed the size

and magnitude of the crime itself, and its novelty on these shores, all

worked to prejudice the defense

preparation in multiple ways. Some of the effects have included massive

media interest with the result that many important fact witnesses refused to

talk with the Defendant's counsel and investigators. When civil suits were

filed by victims

which might have afforded the defense the opportunity, legitimately, to take

depositions of lay witnesses, the suits were dismissed on the eve of the

depositions, or when the plaintiffs would not or did not dismiss, the

government sought a stay. The result being that many sources of information

were--and still are--cut off though these same witnesses continue to talk to

FBI agents and to the press.

The inability of the defense to depose witnesses allowed the FBI to go back

to key defense witnesses and intimidate them by asking for polygraph tests

and telling them "you did not see what you claimed to have seen." The

defense was also prejudiced because there was a massive overwhelming sense

of collective judgment that the Defendant was guilty, and that was it. The

trial would be simply to rubber stamp of the validity of the arrest and

public relations campaign in the press that our client is guilty. Government

agencies, and others, simply refused to consider the possibility of

innocence, or that others might be involved, even a foreign connection. One

wonders how many American have to die in the World Trade Center, over

Lockerbie, in a military barracks in Saudi Arabia, or off Long Island to

realize that there is nothing remote, fanciful or inconsistent about the

same foreign hands (or others) being involved in the bombing of the Murrah


The government does not produce truly exculpatory evidence because it does

not believe it exists. Or, if it exists, it is not credible (or so they

claim). Either the Defendant has established that the material he seeks from

the national intelligence agencies is exculpatory or he has not. If he has,

then he needs a court order to pry it out, or at least, if that does not

work, there will not be any dispute later as to what should have been done.

The district court relied on good faith professed on the part of the

prosecution, but the defense does not

see any compelling need to rely upon the good faith of the Deputy General

Counsel of the DOD, William Sheehan and his counterparts throughout the

federal bureaucracy, because he does not have any. See D.E. 1923 (Exhibit "CC").

In fact, Mr. Sheehan's knowledge of his legal obligations under the

Constitution is so wrong it is breathtaking in its audacity: The Department

of Defense is not a party to this suit and is not bound by the Court's

order. The last time the defense looked at the Indictment it was captioned

"United States of America" versus Tim McVeigh, not 'The Department of

Justice" versus Tim McVeigh. This district court's order of April 29, 1996

(D.E. 1310) directed a response from the government as a whole. To

paraphrase a currently politically correct statement used in another

context: the government agencies just don't get it.

The government may respond once again citing gross numbers of discovery

items produced, but that is hardly the issue. Have we received everything

pursuant to a specific request, not just some of it, or fifty percent of it

or even ninety-nine percent of it? If there is a specific request, and the

government claims it has supplied it all, then it should inform the defense

which discovery items are responsive and sign a paper with the district

court that the defense has it all instead of just waiving a hand at a

warehouse full of papers and tangible objects and say: it's in there. The

government hopes that in the abundance of irrelevant material it has

furnished the truly relevant will not be missed. The defense comes before

the Court at this time and seeks invocation of the Court's authority to take

control of the discovery process in this case.

There are a myriad of examples where the government has, in the defense's

view, stonewalled, delayed, and obstructed the discovery process in this

case. Examples include the following:

1. Carol Howe: As discussed supra, the government provided to the defense

information that we now know came from Carol Howe, but that was presented to

the defense on January 26, 1996, in such a way that every proper noun was

grossly misspelled and Carol Howe was referred to as a confidential

informant named "Carol"--indicating that Carol may not have been her real

name (or the informant may not have even been a female) and certainly did

not give a last name. Such was the excess of the sloppy (or the defense

believes more likely intentional) spelling in this report, the government

itself could not even find it when the Court ordered it to respond to

defense requests concerning this information and this particular report was

omitted. In isolation, the defense might have been willing to credit the

government's claim that it could not find this particular insert, but since

it follows a clear pattern of government careless handling of exculpatory

information, the defense now believes that it was deliberate. But that is

not to say that the individual prosecutors in this case did it. The defense

believes that over zealous investigators within the ATF and the FBI are

likely responsible.

In addition, government counsel stated to the Court, as discussed supra,

that Carol Howe had been dismissed as an ATF informant in March 1995, when

in fact, as the ATF knew, she had become an ATF informant again in early May

1995. Government counsel advised the district court of these facts only when

defense counsel brought it to their attention.

2. Government characterization of Brady: Government counsel, by written

letter (D.E. 1923, Exhibit "X") represented to defense counsel that in its

opinion, no statements made by Michael Fortier, Lori Fortier, Eldon Elliott

or Vickie Beemer could be characterized as exculpatory. Defense counsel

believes this statement is a compelling insight into the government's view

of its Brady obligations which underscores the need for judicial

intervention. The statements made by those individuals are so exculpatory

that lengthy hearings have been held before the district court concerning

their contradictory statements concerning clothing worn by "Robert Kling,"

who Kling was with, and what the other person looked like. The statements of

these individuals are so obviously exculpatory under the existing case law

that, when defense counsel received government counsel's letter containing

these statements, there was an immediate red flag raised and defense counsel

was placed on notice to monitor discovery matters very carefully. Defense

counsel is now convinced that the government in this case will not honor its

discovery and Brady obligations absent judicial intervention.

3. Information from Saudi Arabia: This information is discussed more fully

in D.E. 1898, but the concern to the defense is that the government received

facially credible information from a foreign intelligence officer that Iraq

had targeted specifically the Murrah Building by contracting seven (7)

Afghani freedom fighters residing in Pakistan to carry out the bombing. The

government became aware of this information the day of the bombing-April 19,

1995--yet, the two simple reports generated by the government were provided

to the defense under the guise of being "possibly non-pertinent" nearly one

year after the bombing and

spread out over five months, although the two reports were transcribed on

the same day. See D.E. 1898 (Exhibits "3" and "4").

4. "Master Minds": As discussed supra, the government indicated to the

district court that it had no information that any persons other than the

charged Defendants were the "master minds" of the bombing of the Murrah

Building. But this statement was made at a time when the government was in

possession of the information relayed from Saudi Arabia concerning Iraq

targeting the Murrah Building and using Afghan rebels to carry out the

bombing. The government clearly had information that persons and/or

organizations other than the charged Defendants were the master minds of the

bombing. It is only when the defense points these things out that the

government then retreats and amends its disingenuous statements as "there

was no underlying credible information" that others (as the Grand Jury noted

"unknown others") were responsible for the bombing.

5. Andreas Strassmeir: Information received from the government concerning

Andreas Strassmeir indicates certain symbols concerning Mr. Strassmeir's

immigration information. See attached Exhibit "A." Government counsel made

representations to the district court as to what these symbols "A" and "O"

mean. See D.E. 3410 (March 10, 1997, transcript at 11). The defense was

informed that "A" means "admitted" and "O" means "overstay." However, it

appears to the defense that according to the State Department's own chart of

the meanings of certain symbols, "A" means "diplomatic visa" and "O" means

"extraordinary ability." See attached Exhibit "I."



>From a review of the documents in attached Exhibit "A," it is clear that the

"O" designation appears on Strassmeir's immigration records at a time when

he clearly would not have been an overstay. The first four trips to the U.S.

made by Strassmeir have the "A/O" designation when he did not overstay, and

the last trip, when he did overstay, do not indicate "A/O." In addition, the

comments by Mr. Brown on the last page of Exhibit "A," and incidently [sic]

Mr. Brown is in a position to access all of Strassmeir's immigration

records, indicate that Strassmeir overstayed on his last trip only--exactly

the opposite of government counsel's representations on March 10, 1997.[25]



[25] A defense source informs us that special status is specific to the

computer system, is confidential and is available only to intelligence

investigation apprehension and detention. There is no code system where "A"

is "admitted" or "O" is "overstayed." "A" always means "diplomatic" and the

information that "A" meant "admitted" and "O" meant "overstayed," according

to our sources intimately familiar with INS records and State Department

visa records, is simply inaccurate.


In addition, the district court directed the government to inform defense

counsel whether Andreas Strassmeir was an informant for the ATF or other law

enforcement. Government counsel has since given this information to the

defense, but two months after the court ordered it, and then only during a

hearing before the district court discussing these matters. The defense

realizes that there are occasions where delays between the prosecution and

the defense occur when furnishing information, and certainly the defense has

been tardy, but in this particular instance, this information was crucial to

the defense and it was simply withheld without explanation for two months.

The defense will not rely upon government representations because experience

has taught us that the representations are subject to change at any time.

There is a pattern here of the government representing information, the

defense pointing out that the information is incorrect, and then government

back pedaling and retreating to a position of safety. The defense has

entreated the district court for judicial authority to put an end to this

government conduct, but the district court has not entered any orders. The

government has no interest in providing the information requested by the

defense. There is no penalty for their failure to do so, other than the

potential threat of appellate litigation years down the road. The government

is under incredible pressure to obtain convictions and death sentences in

this case at trial. But the penalty for Mr. McVeigh is forfeiture of his

life--if the government fails to produce information requested by the

defense and Mr. McVeigh is convicted and given the death sentence, he will

be strapped on to a gurney and a lethal dose of drugs will be injected into

his veins. These are the reasons why the defense believes that intervention

by this Court is absolutely necessary in order to ensure the fundamental

fairness of Mr. McVeigh's trial, and to leave no doubts concerning the scope

and type of information that the government must furnish.

B. Counsel for the Government Are Powerless to Effect Disclosure of

Discoverable Information from National Intelligence Agencies.

In the defense's view, the articulated position of government counsel

concerning its discovery obligations and its subsequent non-production of

Brady material in the possession of the national intelligence agencies, is

more than enough to warrant court intervention. However, even assuming

prosecutorial good faith and fidelity to Brady and Rule 16, there is a much

deeper, more fundamental piece of the puzzle in this case which necessitates

oversight by the Court. At its core, the defense's concern is that the other

agencies of the federal government simply do not consider themselves a part

of this litigation, subject to the jurisdiction of the Court, or obligated

in any way to cooperate with the individual counsel representing the

government in this case.

The counsel for the government have been given the mandate to disclose

discovery material to the Defendants on behalf of the entire United States

government, but these men and women simply do not have the authority to

accomplish this task. The United States government is so large and so

compartmentalized into various agencies that consider themselves

self-contained, that cooperation between the Department of Justice and the

national intelligence agencies is the exception rather than the rule. Only

this Court has the authority to compel the national intelligence agencies of

the United States government to comply with the criminal discovery process

in this case. Absent court intervention, it simply will not occur.

Federal Rule of Criminal Procedure 16(a)(1)(C) provides:

Upon request of the defendant the government shall

permit the defendant to inspect and copy and photograph,

books, papers, documents, photographs, tangible objects,

buildings or places, or copies or portions thereof,

which are within the possession, custody or control

of the government, and which are material to the

preparation to the defendant's defense or are intended

for use by the government as evidence in chief

at the trial or were obtained or belonged to the defendant.

(bold emphasis added.) It is Defendant McVeigh's position that this rule of

criminal procedure means what it says, and that the reference to the

"government" means all branches and agencies of the United States Federal

Government. The Plaintiff in this litigation is the United States--not the

Department of Justice--and the breadth of the government's discovery

obligations should span the entire federal government.

The district court's Order of April 29, 1996 (D.E. 1310), supports Defendant

McVeigh's position. The district court recognized that even though

government counsel indicated that the intelligence agencies were not

"aligned" with the criminal investigation of this case, that fact did not

limit the prosecution's duty to provide discovery from these agencies if

they possessed information which may be exculpatory or impeach the

government's case. See United States v. McVeigh, 923 F. Supp. 1310, 1315 (D.

Colo. 1996). The district court then framed government counsel's charter and

stated that "the prosecutors must respond to the defendants requests for

information from a broad perspective of the government as a whole." Id.

Counsel for the government in this case are incapable of doing so.

As an initial matter, the defense understands the government's

representations to the district court on June 18, 1996, to be simply that

the national intelligence agencies have not provided any information to

government counsel (other than "claims of responsibility"), rather than

taking the position that the national intelligence agencies do not possess

such information. In other words, counsel for the government have not

physically inspected all information in the possession of the intelligence

agencies of the federal government and concluded that nothing is

discoverable, rather government counsel has simply made requests to the

agencies and the "intelligence agencies have produced no information for us

[government counsel] that falls under Brady and that would provide any

exculpatory information to the defense." D.E. 1620 (Transcript of

Proceedings, June 18, 1996, at 114).

This distinction is critical because counsel for the government do not

physically possess the documents and information which are in the possession

of the national intelligence agencies. They seek to discharge their duty to

provide discovery in this case pursuant to Brady and Rule 16 by formulating

"letters" to the intelligence agencies and then proceed to make statements

to the Court and to defense counsel based upon the responses. But this

method of investigation is wholly inadequate because government counsel have

no authority to compel production from the intelligence agencies, and the

intelligence agencies themselves do not recognize any duty or obligation on

their part to provide discovery in this criminal case.

These statements are supported by the events of the latter part of 1995 in

which the defense observed the spectacle of government counsel in this case

filing a motion to obtain records from the Bureau of Prisons--a component of

the very same Department of Justice and under the direct authority of the

Attorney General of the United States. Yet, the same government counsel

expect to satisfy this Court and the defense that a "letter" from government

counsel will be adequate to persuade the intelligence agencies of the

federal government, which are not a part of the Department of Justice, to

produce national secrets for consumption by the defense. It is absurd.

Counsel for Mr. McVeigh received a letter from government counsel, dated

September 12, 1995, addressing a prior request of defense counsel for tape

recorded conversations of Mr. McVeigh generated by the Bureau of Prisons.

The Bureau of Prisons is a component of the Department of Justice, as are

United States Attorneys, and as is the FBI. The government's response was

that, although they had obtained some recordings, "any additional recordings

will only be provided with a trial subpoena or express court order." See

D.E. 1923 (Vol. III Exhibit "Z"). Thereafter, on October 27, 1995, the

government filed an extraordinary pleading in which the United States of

America sought a court order directing the Bureau of Prisons to produce the

taped conversations of the Defendants. See D.E. 1923 (Vol. III Exhibit "AA").

Defendant McVeigh responded to this pleading, noted its absurdity, and

raised a concern that the government was posturing and may have ulterior

motives in filing such document. The defense pleading, while not opposing

the government's motion, took exception to it and articulated the hope that

the government, by filing the motion, was not "attempting to create a

precedent by a narrow restrictive reading of the government's obligation to

produce discovery." See D.E. 1923 (Vol. III Exhibit "BB"). It seems that the

defense's concerns had merit unfortunately and our prediction has proven true.

The defense is unaware of any motion filed by the government seeking an

order for any intelligence agency to produce discovery. The defense is aware

of no explanation as to why a court order was necessary to obtain Mr.

McVeigh's own statements from the Bureau of Prisons within the Department of

Justice but is apparently, in the government's view, unnecessary in order to

obtain national secrets from agencies outside the Department of Justice. For

that matter, defense counsel is unaware of any "letters" sent from

government counsel to any of the intelligence agencies, other than

representations made by government counsel. They simply refuse to provide us

copies of these "letters". See D.E. 1923 (Vol. III Exhibit "W").

So, there is absolutely no reason to believe that even government counsel

have any faith that "letters" from the prosecution will prompt the

intelligence agencies of the federal government to provide government

counsel with discovery. If it takes an order from a federal district judge

to compel the Bureau of Prisons, a unit of the Department of Justice, to

provide discovery concerning the Defendant's own recorded conversations to

the prosecutors in this case, then it surely requires an order of this Court

to compel the intelligence agencies to produce information properly

discoverable pursuant to Brady and Rule 16.

The critical lesson to be learned from the whole episode of the government's

Motion and Order for Production of Information from the Bureau of Prisons is

this: government counsel have recognized the limitations of their office.

Government counsel probably cannot be faulted for this, because after all

they cannot enlarge their own authority or the authority of their office,

but it is disingenuous for government counsel to acknowledge the limitations

of their office in dealing with the Bureau of Prisons, yet on the other hand

try to convince the Court and defense counsel that the intelligence agencies

possess no discoverable information simply by virtue of the fact that the

U.S. Attorney has requested it and it has not been produced.

The simple fact is that there is a wall of separation between the various

agencies and departments of the Executive Branch of the federal government,

they are for the most part co-equal, and function independently of each

other. The letter from Mr. Sheehan, Deputy General Counsel for the

Department of Defense, received June 20, 1996 by the defense is an excellent

example of this dynamic at work. The relevant passage is set out below:

Neither the Department nor its components is a

party to this litigation, and the opinion

of Judge Matsch attached to your letters imposes

no discovery obligations on them.

See D.E. 1923 (Vol. III Exhibit "CC"). The Department of Defense said

essentially to the district court, 'The Department of Justice may have to

produce information to the defense but we don't." It is a vivid illustration

of the limitations of the investigative powers of the U.S. Attorneys and a

stark reason for this Court to intervene and order the Department of Defense

and other intelligence agencies directly to comply with the rules of

discovery in this criminal case.

The applicability of Brady and Rule 16 is an all or nothing proposition. The

intelligence agencies and the other various and sundry agencies of the

Executive Branch are either under the jurisdiction of this Court and are

bound to comply with discovery orders or they are not. Just as a person

cannot be "a little bit pregnant," the intelligence agencies of the federal

government cannot be "somewhat accountable" to divulge discovery to the

defense. The Department of Defense clearly perceives itself as being exempt

from discovery obligations in this case. The Defendant invites the Court to

instruct the Department of Defense otherwise, and to use the Court's power

and authority to enforce the discovery rules in this case.

The wall of separation between the FBI and the intelligence agencies springs

naturally from the distinct responsibilities of these two components of the

federal government. The FBI investigates domestic criminal acts; while the

intelligence agencies' main responsibility is to acquire information

regarding the security of the United States from foreign sources. Counsel

for the government observed correctly that the National Security Act of 1947

prohibits the intelligence agencies from investigating U.S. persons for

domestic criminal violations. See D.E. 1238 (Transcript of Proceedings,

April 9, 1996 at 50).

But counsel for the government went on to state, and this is the logical

flaw in the statement, that, "Therefore, the NSA, the CIA, and the DIA, the

Defense Intelligence Agency, were not involved with this investigation." Id.

Counsel for the government presupposes that the bombing of the Murrah

Building was the result of an entirely domestic criminal act. We do not.

This is precisely why it is a logical fallacy for the government to say that

the National Intelligence Agencies do not investigate crimes, therefore they

have not investigated this case.

On the contrary, the National Intelligence Agencies, while they may not have

specifically investigated "this case," would have most certainly, and indeed

would have been completely inept if they had not, investigated the bombing

of the Murrah Building. In other words, the intelligence agencies

investigated the event from the perspective of acquiring information

necessary for the National Security, rather than investigating the event as

the Department of Justice did in seeking to bring the perpetrators to

justice. The investigations conducted by each are wholly distinct and the

information generated by each investigation would not necessarily be the

same, and would probably not be the same.

These differences were cogently illustrated by the highly regarded Foreign

Policy Research Institute of the University of Pennsylvania, when it observed:

While these are reasonable questions, they reveal

a lack of understanding about how the U.S. government

works when legal and national security issues of this

special sort overlap. A high wall, in fact, stands

between the Justice Department, including the

Federal Bureau of Investigation, on the one hand, and

the national security agencies on the other. Once

arrests are made, the trials of individual perpetrators

take bureaucratic precedence over everything else.

The Justice Department inherits primary investigatory

jurisdiction, and the business of the Justice Department

is above all the prosecution and conviction of individual

criminals. Once that process is underway, the Justice

Department typically denies information to the national

security bureaucracies, taking the position that passing

on information might "taint the evidence" and affect

prospects for obtaining convictions.

"The World Trade Center Bomb: Who Is Ramzi Yousef? Why It Matters," The

National Interest, No. 42, Winter 1995/96 at 4. This "fire wall" separating

the intelligence and law enforcement communities was noted as recently as

August 20, 1996 in the New York Times, in an article written by Larry

Johnson, former Deputy Director of the State Department's Counterterrorism

Office from 1988 to 1993. See D.E. 1918 at 34. Mr. Johnson noted the

"problem" of the lack of coordination between the FBI and the CIA.

Thus, the relationship between the FBI and the intelligence agencies is

understandable, but hardly surprising, since the intelligence agencies'

primary duty is, of course, to keep secrets. But there are a few select

situations in which information in the possession of the national

intelligence agencies, or even the President of the United States may be

divulged, one of which is a criminal prosecution. See United States v.

Richard M. Nixon, President of the United States, 418 U. S. 683 (1974). But

if an intelligence agency is unwilling to divulge discoverable material,

counsel for the government cannot force them to do so, and neither can

counsel for Defendant McVeigh. That is the reason that this Court must now

get involved.

So, in sum, counsel for the government have neither the authority nor the

inclination to conduct a vigorous effort to obtain discoverable information

in the possession of the National Intelligence Agencies and to divulge such

information to the defense. The defense has a good faith belief that such

information exists, that it is discoverable, and has provided a factual

basis for the materiality of such evidence. The defense now asks the Court

to take action and order such information produced.


A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable

Upon Petition for Writ of Mandamus.

Mr. McVeigh's right to the requested discovery material is dear and

indisputable. Moreover, mandamus is the appropriate means of reviewing a

district judge's denial of discovery motions. In re Joint Eastern & Southern

Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). As the

Supreme Court noted in Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943),

mandamus is traditionally used "to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it to exercise its

authority when it has a duty to do so."[26]



[26] According to the All Writs Act, "[t]he Supreme Court and all courts

established by act of Congress may issue all writs necessary or appropriate

in aid of their respective jurisdictions and agreeable to the usages and

principles of law." 28 U.S.C. ' 1651(a).


As this Court held in Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.

1965), cert. denied, 383 U.S. 936 (1966):

The jurisdiction of this court to take action to

guarantee a fair and impartial trial is no longer

open to question. Upon an adequate showing, this

court has held that it has the "power and inescapable

duty," whether under the all writs statute, 28 U.S.C.

1651, or under its inherent powers of appellate

jurisdiction, to "effectuate what seems to us to be

the manifest ends of justice." 354 F.2d at 657

(quoting United States v. Ritter, 272 F.2d 30, 32

(10th Cir. 1959), cert. denied, 362 U.S. 950 (1960)).

The remedy of mandamus is a drastic one that should be invoked only in

extraordinary circumstances. Will v. United States, 389 U.S. 90, 95 (1967).

However, extraordinary circumstances abound here. Mr. McVeigh goes on trial

for his life in one week. A system that would take life must first give

justice. This is a case where there is no smoking gun. There has been no

confession. There has been no admission of guilt. The eyewitness testimony

proffered by the government so far is in disarray and is contradictory. The

FBI forensic laboratory is itself under serious challenge by senior agents

in scientific analysis and its critical flaws have been amply documented by

the Inspector General of the United States Department of Justice. Michael

Fortier, the government's star witness, has made contradictory public


By not tendering the information requested in this motion, the federal

government is simultaneously prosecuting Timothy McVeigh while at the same

time attempting to restrict his ability to use information that is necessary

to defend himself. See United States v. Fernandez, 913 F.2d 148, 154 (4th

Cir. 1990). As the Fourth Circuit has stated, courts must not be remiss in

protecting a defendant's right to a full and meaningful presentation of his

claim to innocence. Id. Timothy McVeigh is constitutionally presumed

innocent and now seeks an order from this Court commanding the government to

produce that which is relevant to his defense and to which he has no other

means of access. The district court's refusal to compel discovery in this

capital case severely hamstrings Mr. McVeigh's ability to defend against the

charges and prejudices Mr. McVeigh's right to a fair trial.

B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the

Requested Discovery Material.

Federal Rule of Criminal Procedure 16 provides in relevant part:

Upon request of the defendant the government shall

permit the defendant to inspect and copy or photograph

books, papers, documents, photographs, tangible objects,

buildings or places, or copies or portions thereof,

which are within the possession, custody or control

of the government, and which are material to

the preparation of the defendant's defense or are

intended for use by the government as evidence in

chief at the trial, or were obtained from or belong

to the defendant.

Fed. R. Crim. P. 16(a)(1)(C).

The material Mr. McVeigh requested under Rule 16(a)(1)(C) is both material

and relevant to his defense. Mr. McVeigh's discovery requests are relevant

and material in that all information obtained by the United States from

intelligence sources that identify foreign or domestic groups or individuals

other than Timothy McVeigh as being either responsible for, or suspected of

involvement in the bombing is discovery absolutely necessary to the

development and presentation of his defense.

In Bankers Life & Coal Co. v. Holland, 346 U.S.379 (1953), the Court held

that when a petitioner can show either an usurpation of power or a clear

abuse of discretion, the right to mandamus is clear and indisputable. The

court below abused its discretion when it ignored its obligations under Rule

16. Rule 16 entitles the defense to any information that is relevant and

material. The trial court's refusal to compel the government to produce the

requested information violates the rules of discovery. Although the trial

court is vested with wide discretion concerning matters of discovery, this

discretion is not unbridled and it was abused here.

Rule 16 permits discovery that is "relevant to the development of a possible

defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)

(quoting United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984)). The mere

fact that some of this information may be classified is of no moment. The

standard for discovery of classified information is low, and is very easily

met in this case.

In order to prevail on a discovery request for classified information, a

defendant must make a threshold showing that the requested material is

relevant to his case. United States v. Yunis, 924 F.2d 1086, 1095 (D.C. Cir.

1991). This standard is little more than the "low" legal hurdle of

relevance. United States v. Yunis, 867 F. 2d 617, 623 (D.C. 1989) (the

district court properly noted that the defendant must show that the

statements sought crossed the low hurdle of relevance); United States v.

Yunis, 924 F. 2d 1086, 1095 (D.C. Cir. 1991) (threshold showing that the

material is relevant is a "low" hurdle); see also United States v. Rezaq,

156 F.R.D. 514, 519 (D.D.C. 1994) (the threshold showing for a defendant to

prevail on a discovery motion for classified information is not a high one).

Significantly, the requested discovery need not directly relate to Timothy

McVeigh's guilt or innocence. Id. Rather, the requested information must

simply "play an important role in uncovering admissible evidence, aiding

witness preparation, corroborating testimony, or assisting impeachment or

rebuttal." Rezaq, 156 F.R.D. at 519 (citing United States v. George, 786 F.

Supp. 11, 13 (D.D.C. 1991)). Thus, the requested information in this motion

is discoverable under the applicable legal standards.

But there is another concern here. Factually, this case is in a class by

itself Counsel cannot think of any other criminal prosecution in which the

full focus of the federal government's massive resources,[22] including

military and intelligence resources, have been directed worldwide with the

sole purpose of identifying and apprehending the persons responsible for the

crime of which Mr. McVeigh stands accused.



[22] A military C130 was used for photo reconnaissance of downtown Oklahoma

City after the bombing. See FOX Broadcast "Ground Zero" February 27, 1996

(video footage of C130 flying over Murrah Building and interview with Capt.

Steve Pulley(?) assigned to the 137th Airlift Wing of the Oklahoma Air

National Guard stating that the C130 was used for "evidentiary and

historical photos."). Capt. Pulley(?) stated that an FBI agent was on board

the C130 as it flew its reconnaissance mission over the Murrah building. The

purpose of the FBI agent was "to keep evidentiary control." Id. In addition,

a variety of locations relevant to the bombing were identified for

reconnaissance satellite photo image recovery. See attached Exhibit "D."


Even the bombing of the World Trade Center in Manhattan lacked the

identifiable targeting of the federal government specifically, not to

mention the catastrophic casualties present in the bombing of the Murrah

Building. This case simply stands

alone. To the extent that the federal government has spared no resource in

its investigation, it would be fundamentally unfair to deny to Mr. McVeigh a

fraction of the product of that investigation when the fruits are relevant

and material to the defense in this capital case.

Moreover, the relevancy and materiality of the discoverable intelligence

information sought should be viewed with an eye towards the difficulty in

proving such qualities at this early stage of what will certainly be a

complex criminal matter. See United States v. Poindexter, 727 F. Supp. 1470

(D.D.C. 1989) rev 'd on other grounds, 951 F.2d 366 (D.C. Cir. 1991). The

language and spirit of the discovery rule is designed to afford an accused,

in the interest of fairness, the widest possible opportunity to inspect and

receive such materials in the possession of the government as may aid him in

presenting his side of the case. Id. at 1473. The Court in Poindexter felt

it best to resolve close or difficult discovery issues in favor of the


The language and the spirit of the Rule are designed

to provide to a criminal defendant, in the interest

of fairness, the widest possible opportunity to

inspect and receive such materials in the possession

of the government as may aid him in presenting his side

of the case. Moreover, because of the CIPA process, the

Court will have an opportunity to address once again the

issue of the materiality of classified documents that

have been produced and their use as evidence. For these

reasons, . . ., the court has been inclined to err on the

side of granting discovery to the defendant of matters

that may fairly be encompassed within the indictment,

and it has generally resolved close or difficult issues

in his favor.

Id. (footnotes omitted) (bold emphasis added); see also United States v.

Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994) (Brady and its progeny deal with

the issue of materiality after a conviction and provide only limited

guidance before trial when the significance of some evidence may not be

fully apparent).



C. The District Court Abused its Discretion by Denying Mr. McVeigh's

Repeated Requests for Brady Material.

The information Mr. McVeigh seeks to aid in his defense falls clearly within

the principles set out in Brady v. Maryland, 373 U.S. 83 (1963). Under

Brady, prosecutors have a constitutional obligation to disclose exculpatory

evidence. "The suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosection." Id. at 87. The Supreme Court has recently retooled

the "materiality" component of the Brady doctrine. See Kyles v. Whitley, 514

U.S. 419, 115 S. Ct. 1555 (1995). The Court emphasized that a showing of

materiality does not mean that disclosure of suppressed evidence would have

resulted in a defendant's acquittal. Kyles, 115 S. Ct. at 1565-66. Rather,

the touchstone of Brady is whether "the favorable evidence could reasonably

be taken to put the whole case in such a different light as to undermine

confidence in the verdict." Id.: at 1566. In assessing Brady claims,

suppressed evidence must be considered collectively, and not on an

item-by-item basis. Id. at 1567.

Although a court's evaluation of a Brady claim in many cases takes place

postconviction, the Supreme Court's articulation of the materiality

standards in Kyles have a direct bearing on the government's obligations in

this case. The information the government is constitutionally compelled to

divulge to Mr. McVeigh includes the information in this motion, if this

court deems it material, regardless of whether an acquittal could be had if

the information is divulged, and if the cumulative effect of the evidence is

such as to undermine the outcome of a jury verdict. At bottom, the prudent

prosecutor should resolve all doubtful questions in favor of disclosure, and

this court should grant liberal discovery, in order "to preserve the

criminal trial, as distinct from the prosecutors' private deliberations, as

the chosen forum for ascertaining the truth about criminal accusations."

Kyles, 115 S. Ct. at 1568.

Courts have recognized that application of the Brady doctrine prior to trial

is problematic. Because many cases involving Brady issues are decided

post-conviction, such cases "provide only limited guidance before trial,

when the potential significance of some evidence may not be fully apparent."

United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994). Thus, the

difficulty in calibrating the quantum of effect requested information would

have on the outcome of a trial is exceedingly difficult in a case such as

this one where no conviction has occurred. Because of the pre-trial posture

of this case and the fact that the government has sought the death penalty,

a liberal application of this court's authority to extract discovery from

the government is appropriate.

The Tenth Circuit has acknowledged that for the purposes of Brady discovery

requests, the term "prosecution" includes not only the staff of the

prosecutor's office, but extends to law enforcement personnel and other

agencies involved in the criminal investigation. Smith v. Secretary of New

Mexico Department of Corrections, 50 F.3d 801, 824 (10th Cir. 1995); see

also United States v. Perdomo, 929 F. 2d 967, 978 (3rd Cir. 1991) (term

"prosecution" also includes investigatory activities). The prosecutor is

"deemed to have knowledge of the access to anything in the custody or

control of any federal agency participating in the same investigation."

United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995). The

information and evidence obtained by all segments of the United States

government, including intelligence information obtained from foreign

governments or sources, are therefore subject to the requirements of Brady

and Rule 16.

Thus, the prosecution cannot avoid disclosure by the simple expedient of

leaving relevant evidence in the hands of another agency while utilizing it

in preparing its case for trial. United States v. Trevino, 556 F.2d 1265,

1272 (5th Cir. 1977). When the government's investigation has extended to

the office of another government agency, the search for exculpatory

information must be at least as thorough as was the search for inculpatory


D. Standard for Guidance in Search.

Absent some showing in precedent or principle for

applying a different standard in relation to some

aspect of the search the government is obligated to

make, I conclude that the following two guidelines

should be applied:

First, the government must search at least as widely

and diligently for exculpatory evidence as it has

searched at any time, in relation to charges in the

case on trial or any possibly related offenses, for

evidence that might be used by the government. If, for

example, the government attorneys and persons in any

agency aiding in the investigation at any stage have

extended their search for possibly inculpatory evidence

to any office of another government agency, the search

for exculpatory evidence must extend to that office

and must be at least at thorough as was the search for

inculpatory evidence.

Second, the government must also extend its search to

other offices as to which, on the basis of information

accessible to the government attorneys by a search in

the offices to which the first guideline applies, it

appears there is a reasonable likelihood that a search

of reasonable scope by feasible methods would identify

evidence within the legal definition of the subject

matter scope of the duty of disclosure.

United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988).

Nor can the prosecution circumvent Brady by keeping itself in ignorance or

by compartmentalizing information about different aspects of the case.

United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-93 (7th Cir. 1985)

(we believe that the purposes of Brady would not be served by allowing

material exculpatory evidence to be withheld simply because the police,

rather than the prosecutors, are responsible for non-disclosure). The

prosecution's good faith or bad faith in efforts to produce discoverable

material is, in fact, irrelevant. United States v. Agurs, 427 U.S. 97, 110

(1976); Smith, 769 F. 2d at 391-93. A perfunctory denial by a low-level

official without full access or clearance to the information requested will

not suffice to relieve the government's obligations to produce all

discoverable material, regardless of the information's source,

classification or sensitivity.

Simply stated, the due process clause places an affirmative duty on the

prosecution to disclose evidence favorable to Mr. McVeigh. Kyles, 115 S. Ct.

at 1565. This constitutional requirement means that the individual

prosecutors in this case have a duty to learn of any favorable evidence

known to anyone acting on the government's behalf in this case, including

law enforcement. Id. at 1567. There is no principled reason why the

individual prosecutors in this case should be absolved of their duty under

the Constitution to learn of any favorable evidence on Mr. McVeigh's behalf

which happens to be in the possession of other agencies in the Executive

Branch, including intelligence agencies. Mr. McVeigh clearly has no

independent access to such information and it would be fundamentally unfair

to saddle him with the burden of producing such evidence. See Smith v.

Secretary of Department of Corrections, 50 F.3d at 823 (the Brady rule is

grounded in notions of fundamental fairness that embody practical

recognition of the imbalances inherent in our adversarial system of criminal


E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and

Punishment, the District Court's Abuse of Discretion Jeopardizes Both Stages

of Mr. McVeigh's Capital Trial

By its own terms, Brady applies to evidence which is material either to

guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also

Chaney v. Brown, 730 F.2d 1334, 1345 (10th Cir. 1984) (citing cases).

The government has essentially conceded that the Brady doctrine requires

evidence which "may support a lesser culpability claim in the sentencing

phase of this case if a jury finds [Mr. McVeigh] guilty." D.E. 881 at 29

(Brief of the United States in Response to Mr. McVeigh's Discovery Report

and Motions). The government does not dispute that such information is

relevant under Brady to a capital sentencing proceeding; rather, the

government merely characterizes Defendant McVeigh's request for such

information as "procedurally premature." Id. The government is in fact

precluded from making the argument that the discovery requests are not

material to a sentencing determination in a capital case not only by Brady

itself, but by this Circuit's decision in Chaney v. Brown, 730 F. 2d 1334

(10th Cir.) cert. denied, 469 U. S. 1090 (1984).

In Chaney, the Tenth Circuit granted a petition for a writ of habeas corpus,

holding that the prosecution had violated Brady by withholding evidence

which might have affected the sentence in a capital case. The evidence

suppressed by the prosecution consisted basically of FBI 302's which

detailed witness statements, some of which raised questions concerning the

location of the defendant at the time of the crime and whether he acted

alone, and others were simply inconsistent with the prosecution's theory of

the case and the timing of events.

In granting the writ, the Tenth Circuit observed that the Eighth and

Fourteenth amendments require that the sentence in a capital case not be

precluded from considering as a mitigating factor, any of the circumstances

of the offense that the defendant proffers as a basis for a sentence less

than death. Id. at 1351 (citing Eddings v. Oklahoma, 455 U. S.104, 110-12

(1982)). The Tenth Circuit held that the evidence in Chaney was mitigating

because it related to the circumstances of the offense as a whole, and also

tended to support inferences that others were involved in committing the

crime, and that defendant Chaney may have been less culpable than others. Id.

Perhaps more important, the Court noted that the withheld evidence in Chaney

was significant with respect to the aggravating circumstances that had to be

proven in order to sentence him to death. In Chaney, the aggravating

circumstances as found by the jury to support the death sentence rested on

the conclusion that Chaney was the sole perpetrator of the crimes. Id. The

Court stated:

Because the withheld evidence tends to support

inferences that Chaney may not have been the

sole participant in the criminal episode, and

may not have personally killed the victims, or

had been present at the time of the murders,

the evidence might have caused the jury not

to find these aggravating circumstances beyond

a reasonable doubt.

Id. at 1352.

Thus, Brady and Chaney make clear that the government is constitutionally

obligated to provide to Mr. McVeigh any information concerning "other

participants" and all reports concerning John Doe No. 2, as well as

information concerning "the circumstances of the offense" which Mr. McVeigh

could possibly proffer as a basis for a sentence less than death. To the

extent that any of the preceding 17 specific requests in this motion address

any of this information, the government is simply compelled to produce it.

However, the government's response to Mr. McVeigh's prior motion for

discovery evidences a very disturbing picture of the government's

understanding of its obligations under Brady. In fact, the government's

position is inconsistent and contradictory even within its own brief in

response to Mr. McVeigh's discovery motion.

On one hand, the government proudly proclaims that it is "voluntarily

exceeding its discovery obligations" as well as "exceeding Brady's

requirements" by voluntarily agreeing to make all witness statements to law

enforcement officers available to the defense.[28] See D.E. 881 at 5, 19-20

(Brief of the United States in Response to Defendant McVeigh's Discovery

Report and Motions).



[28] The government did not turn over to defense counsel all Grand Jury

transcripts until ordered to do so by the court below in January, 1997. The

government has never provided to defense counsel memos of interviews by

attorneys for the government.


In addition, the government has undertaken a "Brady review" and has

ostensibly aided the defense by categorizing Brady material into six (6)

categories, including categories of other possible perpetrators as well as

information relating to possible mitigation of culpability. Id. at 19-20.

Yet, barely five pages away in their brief, the government assails many of

Mr. McVeigh's discovery requests as "meritless," including information of

others with motives to bomb federal buildings, as well as information on

John Doe No. 2. Id. at 25-30. In spite of the Tenth Circuit's decision in

Chaney, the government nevertheless insists that evidence relating to John

Doe No. 2 is not exculpatory. Id. at 28. The government cannot have it both

ways. It cannot on the one hand be commended for exceeding its obligations

under the Constitution and the Brady decision by divulging information to

which the defense is (according to the government) not constitutionally

entitled; but on the other hand, argue that evidence concerning John Doe No.

2 as well as other information on other possible perpetrators of the bombing

are not exculpatory as a matter of law.

If the government views its production of Brady material regarding "other

subjects" such as John Doe #2 as gratuitous, then the government may

withhold crucial evidence at the same time it maintains that legally it is

not required to give it at all. The government appears to have a deep and

fundamental misunderstanding of its constitutional duties under Brady. The

government's tactic throughout this case has been a willingness to divulge

volumes of irrelevant information that it would not otherwise be

constitutionally required to divulge, while at the same time refusing to

divulge relevant and material information specifically requested by Mr.

McVeigh, and then arguing incredibly that the requested information does not

fall within the ambit of the Brady decision.

The government's position on these matters is inexplicable. The government

does not contend that this information does not exist, it has taken the

position that even if this evidence does exist, Mr. McVeigh is not entitled

to it as a matter of law. The government's interpretation of Brady and its

progeny is fundamentally flawed and especially troubling in a case such as

this one where the government is seeking the death penalty while at the same

time maintaining that it has no duty to divulge information it may have

concerning other possible perpetrators of the crime. It invites the real

risk of a reversal of a conviction, should there be one.

Typical of the government's stunted interpretation of Brady is its citation

to this Court's opinion in Hopkinson v. Shillinger, 781 F. Supp. 737 (D.

Wyo. 1991) (Matsch, J., by designation). The government cites Hopkinson for

the proposition that evidence of the involvement of other perpetrators in a

murder is not Brady material because such evidence does not show that the

defendant was not involved in the murder. D.E. 881 at 29 (Brief of the

United States in Response to Defendant McVeigh's Discovery Report and

Motions). The government uses Hopkinson in order to argue that evidence of

the involvement of John Doe No. 2 is not exculpatory, and therefore not

properly discoverable under Brady. Hopkinson stands for no such thing and

could not be more inapposite.

The procedural posture of Hopkinson was that of a successive petition for a

writ of habeas corpus on a 12-year old conviction and death sentence of a

state prisoner. Thus, the inquiry before the Court was whether the

suppressed evidence would have created a reasonable probability sufficient

to undermine confidence in the outcome of the trial and death sentence that

had already occurred. In contrast, Defendant McVeigh is constitutionally

presumed innocent of the crimes for which he is charged in the Indictment

and seeks an Order from this Court to compel the government to produce

information to which he is constitutionally entitled prior to any conviction

and sentence. Because the potential significance of some evidence may not be

fully apparent at the pre-trial stage, cases such as Hopkinson provide this

court with "limited guidance." See United States v. Rahman, 870 F. Supp. 47,

51 (S.D.N.Y. 1994).

As the government has emphasized, it must be remembered that Brady stems

from the "fundamental fairness" requirement of the due process clause and

its purpose is to ensure that a miscarriage of justice does not occur. D.E.

881 at 29-30 (Brief of the United States in Response to Defendant McVeigh's

Discovery Report and Motions) (citing Arizona v. Youngblood, 488 U.S. 51, 58

(1988); United States v. Bagley, 473 U. S. 667, 675 (1985)). Thus, Mr.

McVeigh does not come before this Court as a convicted felon seeking

absolution, but rather as a criminal defendant presumed innocent seeking

information relevant and material to his defense in a capital case which is

in the sole custody and control of his adversary. Mr. McVeigh asks this

Court for nothing more than to Order the district court to perform its duty

under the Constitution.

Moreover, when this Court decided Hopkinson, it did not have the benefit of

the Supreme Court's decision in Kyles v. Whitley, 115 S. Ct. 1555 (1995). In

Kyles, the Supreme Court emphasized that the "materiality" requirement under

Bagley was not a sufficiency of the evidence test. Kyles, 115 S. Ct. at

1566. The Court made clear that it makes no difference under Brady whether

there would still have been adequate evidence for a conviction even if the

favorable evidence had been disclosed. Id.

The difference between the inquiry in Hopkinson and the inquiry in this case

is the difference between deciding whether, if an oar would have been thrown

to a person in a boat going over a waterfall would have saved him, or

whether an oar should be thrown to a person in a boat about to go over a

waterfall. It was too late to throw the oar to Hopkinson, but it is not too

late to throw one to Mr. McVeigh. The Constitution requires it. Fundamental

fairness demands it.




Petitioner requests that a Writ of Mandamus issue to the Respondent Judge of

the District Court directing him to command the government to produce the

material requested in the manner outlined by the defense in sealed district

court documents D.E. 1079, 2265, 2533, 2768, and 3123.

Additionally, Petitioner requests that the writ include a direction to the

district court compelling the government to produce information responsive

to 2 of Exhibit "A" attached to this Petition which is a document with the

heading "Department of Statement Diplomatic Security." This paragraph

indicates that certain military record checks were pending and that results

would be forwarded to the government by separate telegram. The defense

requests the documents provided to the government in the separate telegram.

Petitioner also requests that this Court, while considering these matters,

either stay the commencement of the trial or in the alternative, allow the

district court to proceed with jury selection but stay the commencement of

evidence being received until these issues have been resolved in this Court.

Respectfully submitted,

L Stephen Jones, OBA #4805

Robert Nigh, Jr., OBA #011686



Denver Place South Tower

999 18th Street, Suite 2460

Post Office Box 8257

Denver, Colorado 80201

Phone: 303/299-9050

FAX: 303/299-0045

Richard Burr, FBA #407402

Denver Place South Tower

999 18th Street, Suite 2460

Post Office Box 8257

Denver, Colorado 80201

Phone: 303/299-9050

FAX: 303/299-0045

Jeralyn E. Merritt, Esquire

303 East 17th Avenue, Suite 400

Denver, Colorado 80203

Phone: 303/837-1837

FAX: 303/832-7822

Cheryl A. Ramsey, OBA #7403

Szlichta & Ramsey

Post Office Box 1206

Stillwater, Oklahoma 74076

Phone: 405/377-3393

Christopher L. Tritico, TBA #20232050

Essmyer, Tritico & Clary, LLP

4300 Scotland

Houston, Texas 77007

Phone: 713/869-1155

Of Counsel

Robert L Wyatt, IV, OBA #13154

Michael D. Roberts, OBA #13764

James L. Hankins, OBA #15506

Randall T. Coyne, MBA #549013

Amber McLaughlin, TBA #13740980

Robert J. Warren, OBA #16123

Mandy Welch, TBA #21125380

Holly Hillerman, OBA #017055




This is to certify that on the 25 day of March, 1997, a true and correct

copy of the above and foregoing PETITION FOR WRIT OF MANDAMUS OF



Joseph H. Hartzler, Esquire

Sean Connelly, Esquire

Special Attorneys to the U.S. Attorney General

U.S. Department of Justice

1961 Stout Street, Suite 1200

Denver, Colorado 80294

Michael Tigar, Esquire

Ronald G. Woods, Esquire

N. Reid Neureiter, Esquire

Adam Thurschwell, Esquire

1120 Lincoln, Suite 1308

Denver, Colorado 80203

The Honorable Richard P. Matsch

c/o Jim Manspeaker, Federal District Court Clerk

140 U.S. Courthouse

1929 Stout Street

Denver, Colorado 80294