1. MR EICKE: My Lord, can I, before I sit down, before the cross-examination resumes, could I ask that the document which was handed to Mr Otty outside court, and which your Lordship had this morning, be handed to the witness as well.
2. MR JUSTICE WILKIE: Yes, certainly. Does it have a home?
3. MR EICKE: It does not yet have a designated home, my Lord, and it does not have page numbers. (pause) My Lord, Mr Otty rightly suggests why do we not put it behind the consolidated statement in tab 3, behind page 68.
4. MR JUSTICE WILKIE: Right. So we can call it 68A, can we?
5. MR EICKE: My Lord, yes.
6. MR JUSTICE WILKIE: OK.
7. MR EICKE: And then I have raised with my learned friend, and he agrees, that the witness can have his aide memoire back, if your Lordship is content with that.
8. MR JUSTICE WILKIE: OK. Thank you. Yes, Mr Otty.
(11.05am)
9. MR OTTY: My Lord, I raised earlier the question of the screens. I am not sure -- your Lordship can see.
10. MR JUSTICE WILKIE: Yes.
11. MR OTTY: I am grateful, my Lord. Good morning, Witness Z.
A. Good morning.
Q. You will recall from yesterday that I was about to ask you in a little more detail about the Afghanistan training camp allegation?
A. Indeed.
Q. The source for that allegation, insofar as one can discern it from the Italian materials, appears to be the statement of Mr Abdallah as it is reflected in those materials, is that correct?
A. I believe also the Italians stated themselves, in think in their case to the UN, that he received training in Afghanistan.
Q. Yes, but they do not identify any basis for that in the statement to the UN over and above what is in the Italian domestic courts materials, do they?
A. Not that I'm aware of. I would imagine that there's a separate basis for that accusation in the statement there.
Q. You would imagine that?
A. I wasn't privy to the full investigation, but we're working on the intelligence and assessments of those two rock hard evidence, so that is my view, yes.
Q. It is your view that the UN designation submission by the Italians relied upon additional material to that reflected in the materials generated by the Italian domestic courts proceedings?
A. No, sorry. I make myself clear: with the statement regarding Mr Abdallah --
Q. Yes.
A. -- because Mr Abdallah never actually states that he saw Mr Al Saadi at one of these camps, it is my view that, through the course of their investigation, they would have ascertained that through their own means.
Q. Have you asked the Italian authorities whether that is the case?
A. No.
Q. So it is pure speculation on your part?
A. Well, this is an assessment. This is my view of their material.
Q. And the logic of the assessment is that the statement made by Mr Abdallah is an inadequate foundation for that assertion. Is that correct?
A. For the assertion that he attended a training camp in Afghanistan, yes.
Q. And so that is also now the Security Service's position, is it that Mr Abdullah's statement is inadequate as a basis for that assertion?
A. Not really. I think it adds to an overall assessment of his time in Afghanistan. I think if you look further down in his statement, he said that the guide who assisted with the transfer of individuals from one place to the next -- I am looking at the bottom of 572-117 -- the guides belong to al-Qaeda and it is they who organised the trip to Karachi.
Q. Yes, do not worry, we will go through that in some detail. I just want to clarify the Security Service's position. You stated a moment ago that you imagined, or assessed, that the Italians must have had further material over and above that stated by Mr Abdallah. Correct?
A. Yes.
Q. And the logic of that speculation, or imagination, was that Mr Abdallah's statement was on its own not enough to support that assertion. Correct?
A. The assertion that he trained in Afghanistan?
Q. Yes.
A. I think it adds to his time in Afghanistan.
Q. Can you answer yes or no whether that is a correct summary of the logic of your speculation or imagination?
A. I'm not sure if I can answer yes or no. Can -- I'm just going to go back to the statement itself and the heading.
Q. You are looking for Mr Abdallah's statement?
A. No, sorry, I'm just looking at our own statement. Yes. I think our reason behind -- I believe our reason behind having this part, Mr Abdallah's statement, in this area is that this is to do with Mr Al Saadi's time, our alleged time that he spent in Afghanistan. We accept that Mr Abdallah does not state that Al-Saadi -- that he saw Al Saadi at such a camp, but this is at this time period and we felt it best fitted in this area.
Q. In putting forward before the Secretary of State and now before the court a full and complete picture after the diligent inquiries you accepted that the security services were obliged to pursue, do you accept that it would have been useful to ask the Italian authorities whether what you imagine was the basis for their UN designation request was in fact correct?
A. Well, we felt at the time that we had a sufficient amount of information that allowed us -- which provided us with enough information to allow us to place Mr Al Saadi on a control order. We felt that with the information we had we did not need at that time to pursue that with the Italians.
Q. Was any actual consideration given to pursuit of it with the Italians by the security services?
A. I'm not aware of any, no.
Q. So when you said just now that we felt that we did not need to pursue it with the Italians, what were you referring to?
A. Well, the Italian judgments are only one part of our wider case. They are not the sole basis for our reason for placing Mr Al Saadi on a control order. So our view is that we take the available information to us at the time and we felt we were in a strong enough position and we were concerned enough about Mr Al Saadi's activities to place him on a control order.
Q. Let us see if we can agree what Mr Abdallah at least does and does not say. You agree he does not claim to know if Mr Al Saadi attended a terrorist training camp?
A.. Yes.
Q. You agree his evidence, taken on its own, does no more than place Mr Al Saadi in Afghanistan for an unspecified period of time in the middle of 2001?
A. Well, I believe it also, on -- specifically I think it also adds to the context of who he was associating with whilst he was in Afghanistan at that time. As I stated before, the guides belonged to al-Qaeda and it is they who organised the trip to Karachi. So I think it provides a valuable background reading into his time in Afghanistan and the circles he moved in while there.
Q.. I see. Well, we will look at that. You have it open, I infer, from your detailed answer a moment ago, have you?
A. Yes, 572-117.
Q. Yes. It begins at 112, in fact.
A.. Indeed.
Q. And, if we look at that, we see on page 572-112 in bundle 1 Mr Abdallah's evidence set out. Do you have that?
A. Yes.
Q. And we have the interpreter saying "last question, when did you go to Afghanistan", and that is when the question of Afghanistan with him was explored. Do you see that? Very first line of the questioning of Mr Abdallah.
A. Yes.
Q. Interpreter Zogayi(?). Do you see that? Do you know what else Mr Abdallah was asked about during the course of the Italian proceedings?
A. No, this transcript is all I've seen.
Q. So you have no idea how reliable generally his evidence turned out to be?
A. No. No, I don't.
Q. We see also there that Mr Abdallah appears to say he went to Afghanistan in December 1999. You see that?
A. Indeed, yes.
Q. He later denies that he says that, does he not, and he says that it was at the start of 2000 that he went?
A. Could you point me to that one, sorry?
Q. You don't recall it?
A. Well, I've read all these through. There's a thousand odd pages. I'm afraid I don't remember that specific reference, but if you say there, I'm sure you can take me to the page.
Q. I can. Page 274 of the internal judgment, 116, which was the page you were on in detail a moment ago?
A. Yes. I see.
Q. Halfway down the page, do you have that?
A. Yes, I can see.
Q. Now, just going back to 270 for a moment please, there is no reference anywhere in pages 270 through to 274 to Mr Al Saadi, is there?
A. No, I believe that's right. Yes.
Q. And the identification of Mr Al Saadi comes from halfway down page 275 on 572-117 in the bundle numbering. Do you see that?
A. Yes.
Q. And we see here that Mr Abdallah cannot remember precisely when he met the individual he has identified. Correct?
A. Indeed.
Q. And we also see that he cannot say why he was in Afghanistan, agreed?
A. Well, Al Saadi wasn't in Afghanistan, is that --
Q. I'm sorry.
A. Yes, that's right, yes.
Q. I am sorry, what did you say?
A. Sorry, you said while he wasn't in Afghanistan. I wasn't sure if you were meaning Abdallah or Mr Al Saadi.
Q. I am sorry, yes. My fault. I did not intend to inject the negative into my question either. What I intended to say was Mr Abdallah does not know why Mr Al Saadi was in Afghanistan?
A. Yes, that's correct.
Q. All he does is assert that the individual he has claimed to be Mr Al Saadi was living there, correct?
A. Yes.
Q. But he has given no idea as to how long he had been living there?
A. No.
Q. And then, on the next page, page 276, we see an indication that Mr Abdallah cannot remember whether this person had been to training camps or even mixed with anyone at training camps. You see that? Top of the next page?
A. Yes, I see.
Q. Can you agree that is a fair analysis of his evidence, that if cannot -- you have already agreed.
A. Yes, I can't remember, I think he says.
Q. He is then asked "had this person any contact with people belonging to al-Qaeda" and he says, yes, he had links. Do you see that?
A. Yes.
Q. But he does not expand on the nature of those links, does he?
A. No, it doesn't appear so.
Q. And then he also says that he could not remember anyone from the training camps coming from Italy. You see that? The very next sentence.
A. Yes.
Q. Or the very next exchange. Now, I would like to put a number of questions to you in relation to Mr Abdallah's statement and ask you whether you agree they might be of use, or the answers to them might be of use, in assessing how far Mr Abdallah's statement actually goes in incriminating Mr Al Saadi. Would you agree that it would have been useful to know how long Mr Abdallah and the individual he claims to have identified spent in each other's company?
A. For the purposes of this hearing, yes, I think it may have been useful, yes.
Q. Was that question ever asked by the security services of the Italian authorities?
A. No, we were not present at this exchange.
Q. No, I appreciate you were not present at the exchange, but subsequent to receipt of this document has that question ever been asked by the security services.
A. No. No, not to my knowledge.
Q. Would you agree that it would have been useful to know what name Mr Abdallah knew the individual he had identified as Mr Al Saadi by?
A. I think it would have been useful. I would just add the fact that, again, we take Mr Abdallah's statement along with a lot of other information contained in these bundles and therefore we felt it was sufficient -- we had sufficient information, intelligence, to move forward with a control order and therefore we did not pursue any further questions. It's just one part. I think, obviously if there was an evidential or criminal case, that would certainly be the point, but as this is intelligence and assessments and taking into account surrounding information, then we felt it was not necessary.
Q. Can you point me, with the benefit of your aide memoire, to any other source in the open materials capable of supporting an allegation that Mr Al Saadi had himself trained in Afghanistan, other than what we see about Mr Abdallah's evidence?
A. Well, document 3, I think, is on page 405, at the top centre. Let me just go to it myself.. I will just check.
Q. So this is back to the UN designation?
A. Sorry, absolutely. Sorry, outside of Mr Abdallah?
Q. Yes?
A. We fully accept that Mr Abdallah does not state that he saw Mr Al Saadi at one of these camps.
Q. All right, but, leaving Mr Abdallah aside, is there any source, evidential source, in the open materials supporting a claim that Mr Al Saadi had attended a training camp in Afghanistan?
A. Well, fortunately, we're doing this, I believe, on intelligence and assessments and not solely on evidence and, if it was evidence we were seeking, then I would agree there is no evidential source. We move to, if I refer to that page, the Italians took their case to the UN, states -- I'm reading here, "Faraj Faraj Hassan Al Saadi attended a military course in Afghanistan", and so --
Q. But you do not -- I am sorry, I did not mean to interrupt you.
A. No. I mean, that is our basis.
Q. But you do not know the basis for that assertion.
A. Indeed. It just forms one part of our overriding assessment.
Q. Right, I see. So, aside from that, can you point me to any other source in the open materials supporting this assertion?
A. No.
Q. Going back -- I am sorry, my Lord, someone seems to have a mobile phone on. I wonder if everyone could check theirs. I am always checking mine.
Going back to the list of questions that it might have been useful to know the answer to, Witness Z, would you agree that it would have been useful to ask Mr Abdallah what detail he could provide as to the suggested links between the individual he had identified and al-Qaeda?
A. Was your question just what information -- or what questions might have been useful?
Q. Yes.
A. If so, it might have been -- it's not our view we felt -- we feel we have sufficient information to have imput into our assessments. So the question of might, yes, they might well have been useful, but we chose not to seek them.
Q. You chose not to seek them? You considered --
A. Sorry -- I apologise. We did not seek them and we have not sought them.
Q. You are not suggesting you ever considered asking these questions, are you?
A. To my knowledge, since being in receipt of these judgments, we have not sought knowledge. I've certainly not been at any meetings myself where it's been considered to go back to the Italians for further information.
Q. Another question: would it have been useful to know how many -- and this is all for the purposes of assessing how reliable Mr Abdallah's evidence is. Would you agree that it would have been useful to know how many statements Mr Abdallah had made, both prior to and during the trial, and how accurate those have been proved to be?
A. It might have been useful. I don't believe it would have affected -- I do not assess it would affect our overall assessment and specifically this accusation. I think, for your purposes, if you're looking for whether or not it might have been useful, because we have -- neither of us have seen this information, if it is or might be available, then it is very difficult to judge.
Q. Do the security services rely upon Mr Abdallah's evidence for any purpose at all in support of their assessment?
A. I think it places useful context for the time Mr Al Saadi states that he was in Afghanistan and the circles he moved in whilst he was there.
Q. So the answer, the short answer, is yes, for the reasons you have just given?
A. Yes.
Q. Another question: would you agree that it would have been useful to ask whether Mr Abdallah had been asked to identify any other individuals in the German photograph album he was apparently referred to and if so what the result of that attempted identification was?
A. Again, I believe it might have been useful. However, I do not believe it would assess -- or sorry, have had an impact, on our overall assessment or our accusation.
Q. Even if -- would you accept as a premise that if, for example, Mr Abdallah had given a whole series of other statements which on investigation had been shown to be thoroughly unreliable, would you not accept that that could affect the Security Service's assessment as to the weight it could place upon his evidence on this point?
A. Possibly, but it's wild speculation from -- to know how many other statements and the reliability of such statements. I think my own view is that, if the Italian proceedings relied on it themselves, they must have felt confident in some of that material. Again, I accept that I've no basis to place that on, but my own view is that, if there were such statements to be available, then surely the Italians would have referred to them themselves. So I would accept that I don't have a basis for that.
Q. Now, we have seen from the pages which do not refer to Mr Al Saadi at all a detailed account from Mr Abdallah at pages 270 through to 274 as to his time in training camps and his knowledge of training camps. Have you any idea what happened to Mr Abdallah, whether he was ever prosecuted for any offence himself?
A. No, I do not..
Q. Would you accept that that might have been a useful question to know the answer to in assessing the weight that could be placed on his evidence.
A. Again, speculation. I think it might have proved useful but again I would state that our overall view is that it would not impact on our assessment of Mr Al Saadi.
Q. You are aware that Mr Al Saadi has said he did not have any lawyer appointed by him acting for him in these proceedings and so no lawyer ever had a chance to ask Mr Abdallah any questions at this hearing.
A. I'm aware, yes.
Q. And you do not dispute that, do you?
A. No.
Q. Are you aware that two other witnesses are referred to in the Italian materials as speaking to attendance at training camps in Afghanistan?
A. Yes.
Q. Mr Sofian and Mr Jelassi Riadh?
A. Yes.
Q. And it is right, is it not, that neither of them claim that Mr Al Saadi was present at any training camp at Afghanistan?
A. Yes.
Q. Do you have any idea where Mr Abdallah is now?
A. I neither confirm nor deny we've got information like that.
Q. Do you know whether he would have been able to give evidence himself in these proceedings?
A. I do not know the answer to that question.
Q. I would like to ask you about two further passages which touch upon this issue, which actually come from the Court of Appeal judgment. Have you reviewed the Court of Appeal judgment for the purposes of your preparation in this case?
A. I believe so. There's a lot of documents. If you take me to the correct passage, I'm sure I'll be able to stimulate my memory.
Q. The judgment itself begins at page 572-262.
A. Yes.
Q. Do you see that?
A. Yes. Familiar with the document.
Q. Good. Can you go to page 572-395?
A. Yes.
Q. Do you see toward the foot of the page a paragraph beginning "it also appears that"?
A. Yes.
Q. It also appears that Faray Faray, which may or may not be a misprint for Faraj Faraj, Mr Al Saadi, Cherif, Rihani and Saadi Fadhal had been to the training camps in Afghanistan as reported by Abbas Sofian, Jelassi Riadh, Zuyi Chokri(?) and Sawri Nessi Das(?). You see that?
A. I do.
Q. Now, it is right, is it not, that the Court of Appeal is simply in error on that point, because none of those other witnesses actually implicated Mr Al Saadi in relation to training camps in Afghanistan at all. The sole source in the Italian materials, so far as the domestic proceedings concerned, is Mr Abdallah, limited as he is. Do you agree with that?
A. I am reading the sentence and I can see the -- just to confirm, the witnesses -- sorry, the statements provided in this July, we have Jelassi Riadh, Zuyi Chokri and Zaharoui Nessim, I believe. Yes.
Q. Yes, and none of them implicate Mr Al Saadi in relation to training camps in Afghanistan, do they?
A. I can see it seems to be a discrepancy --
Q. Well, do you accept that or not?
A. Yes, I do.
Q. So you would accept there is a simpler error there in the Court of Appeal's judgment?
A. I suppose my only reference would be if there was further information the Italians had and they just incorporated in this sentence and it is misleading.
Q. Would it have been useful to enquire of the Italian authorities for an explanation as to the apparent error in this paragraph?
A. It might have proved useful: I pointed out that in their case to the UN they state that -- well, they obviously had a reference to him receiving training in Afghanistan. That is not, as we stated earlier, from Mr Abdallah's statement. I believe and trust the statement when they say an accusation like that. I can see that this sentence is misleading.
Q. You can see this sentence is misleading and is in error, from a judicial body, the Court of Appeal in Italy. Why do you assume that the bare assertion in the UN document is well-founded, or found on anything other than Mr Abdallah's claims?
A. It is our role to take all available information and to make what we believe to our best assessment about Mr Al Saadi's activities during this time. It is our assessment that he attended a training camp during this period. In terms of referring -- going back to the Italians and requesting for further information, as stated before, it might have proved useful but we judge that our overall assessment is accurate.
Q. You said a moment ago that you were content to rely upon the findings of the Italian court. Surely you would accept, would you not, that if consideration of those judgments show an internal inconsistency and an obvious error, you should at least explore the reason for that error to see if there is a proper explanation?
A. I believe there is an inconsistency. I think I would have to probably -- well, I believe there's -- I completely accept there's an inconsistency there. Perhaps it was our own translation of the document. I'm not sure. I can't explain it at the moment, I'm afraid. It does not affect, though, our wider taking of the material held in the Italian judgments.
Q. Were you aware of this error before I just highlighted it for you?
A. No, I wasn't.
Q. So I can fairly assume that, as far as your knowledge is concerned, it has never been drawn to the attention of the Secretary of State.
A. As far as I'm aware, no.
Q. Is it any part of the Security Service's case that Mr Al Saadi has received training in Iran?
A. I neither confirm nor deny that we have such information.
Q. Do you accept that, on the basis of the open materials disclosed in the Italian proceedings, there is no evidential source to support any such allegation?
A. Of training in Iraq?
Q. Yes.
A. In the open material?
Q. Yes.
A. Yes. There's --
Q. There is only open material emanating from the Italian proceedings.
A. Sorry, I'm -- meaning about specifically training in Iraq?
Q. Yes, that is what I am asking you about.
A. Not that I'm aware of, no.
Q. It is Mr Abdallah or nothing, is it not, as far as the material in the Italian proceedings are concerned?
A. Are we -- does that include --
Q. The question of training.
A. Sorry, does that include the Italian case to the UN?
Q. Yes, we will make submissions about that, but taking those into account, that is it, is it not?
A. Well, I believe there's a number of references in the Italian extradition request, where they state that they believed Mr Al Saadi received training. However, again, they do not provide the underlining reasons for that assertion.
Q. No. Can you go to page 572-359, please. It is page 71 in the 2008 judgment.
A. Sorry, 572-359?
Q. Yes. If you to 572-358 first, you will see from the heading that this is a section relating to Mr Al Saadi and then on the page 572-359, after the first bullet point, you say he was also directly involved in Nassim's trip to Iran, who he immediately called as soon as he returned to Italy. He also received training in Iran. Now, do you understand that to be an assertion that Mr Al Saadi received training in Iran?
A. I see it's again -- again, it is unclear in my view about whether or not they are referring to Nassim or Mr Al Saadi.
Q. Does the security -- did the Security Service assess that to be a finding that Mr Al Saadi had received training in Iran?
A. We neither confirm nor deny that we have put forward that Mr Al Saadi has received training in Iran.
Q. Forgive me, I am not asking you that. I am asking for the Security Service's assessment of this passage in the Court of Appeal's judgment as to what it had found against Mr Al Saadi.
A. With particularly that sentence, he also received training in Iran?
Q. Yes. (pause) Are you aware of anyone at the security services every actually focusing on that sentence in this judgment?
A. I'm looking at it now and I think, from the following on sentence regarding Nassim, in my view that may relate to -- I don't think there's a way of telling either way. It could equally relate to both Nassim and/or Mr Al Saadi. So I think it can be read both ways.
Q.. Are you aware of the security services ever having focused on that sentence to consider whether it amounted to a finding against Mr Al Saadi?
A. Focusing on this sentence in particular?
Q. Yes.
A. Not that I'm aware of.
Q. I think we are agreed that there is no evidence in the open materials -- I am using your phraseology now, but in the underlying Italian materials -- to support a case that he had training in Iraq?
A. Indeed, yes.
Q. Have you seen what Mr Al Saadi has said about his presence in Afghanistan in the middle of 2001?
A. Witness statement 7, yes?
Q. Yes.
A. Yes.
Q. And it is at paragraph -- this is page 1430-24 and he deals with it at 6K to M and 7 through to 9. Do you see those passages?
A. Yes.
Q. And you have considered those?
A. Yes.
Q. Does the Security Service have any basis for disputing the accuracy of that account?
A. I neither confirm nor deny that we have further information on that.
Q. Can you tell me whether the Security Service disputes the accuracy of that account, leaving aside whether you have any basis for so doing?
A. I neither confirm or deny that we've got information that would dispute this account.
Q. I understand that. Is the Security Service's assessment that this account is true or false.
A. I neither confirm nor deny that we've got information to dispute this account.
Q. No, I understand that. I am not asking you about the underlying information. I am asking you whether the Security Service considers or assesses, or whatever verb you choose to use, this account to be true or false?
A. Our assessment of Mr Al Saadi's time in Afghanistan is stated in our own statement. That, I think, appears at odds with Mr Al Saadi's own account. We continue to believe our assessment to be accurate. We follow our assessment.
Q. But you are unable in open to say why that is so?
A. I neither confirm or deny we've got further information.
Q. Yes, so you are unable in open to say why that is so?
A. I neither confirm nor deny.
Q. Would you accept that, if the Security Service assessment about Mr Al Saadi's attendance at a training camp in Afghanistan is open to doubt, this would weaken the remainder of the case against Mr Al Saadi, both as the prominence of his alleged position within the group in Italy and as to the threat he is said to pose now?
A. There's a lot of speculation on that word "if" there, and I would rather not speculate on that.. We are -- we stand by our assessment about Mr Al Saadi's time at a training camp in Afghanistan.
Q. Well, I understand that, Witness Z, but you will appreciate that one of the questions the judge has to assess is whether your assessment is well-founded or not. You understand that?
A. Yes.
Q. That is one of the key issues in this case?
A. Indeed.
Q. And the judge also has to apply intense scrutiny to your assertion that a control order is necessary going forward, whatever may have happened in the past. You understand that, as well, do you not?
