PART ELEVEN OF EIGHTEEN:

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 group.

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 this.

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, but 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.

[CONTINUED IN PART TWELVE]