PART FOUR OF EIGHTEEN

STATEMENT OF MATERIAL FACTS

II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF THE ALFRED P. MURRAH FEDERAL BUILDING.

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 history.

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) Division).

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 Bombing.

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.

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