MANHATTAN (CN) - The amputee preacher accused of supporting al-Qaida had a penchant for publicly railing against Americans and Jews before his capture, but federal jurors who will weigh his fate may not get to hear such incendiary evidence.
The remarks represent just one loose end U.S. District Judge Katherine Forrest aimed to tie up in a two-day conference before the trial against Egypt-born Mustafa Kamel Mustafa kicks off next week.
Also known as Abu Hamza al-Masri, the former imam is accused of conspiring to kidnap 16 tourists in Yemen, create an al-Qaida training camps in Bly, Ore., and aide the terrorist group in Afghanistan.
Having reportedly lost much of his forearms and one of his eyes fighting the Soviet occupation of Afghanistan, Mustafa is commonly pictured wearing an eye patch and hooked hands. He appears in court, however, without his prosthesis and with his eyes unadorned.
U.K. authorities were actually the first to arrest him in 2004 after he had gained a reputation for supporting Osama bin Laden and advocating jihad as an imam at London's Finsbury Park Mosque.
Mustafa flaunted his radical beliefs in press interviews and statements that he disseminated on his website, in print and audio formats, and the raids of his mosque uncovered troves of such material.
Mustafa's seven-year stint in a London prison for soliciting murder and racial incitement interrupted his long road to trial in New York, as did extradition proceedings and an E.U. human rights court's ruling.
U.S. prosecutors want jurors to hear recordings of Mustafa's sermons since they say such material proves that he is capable of the violent conspiracies listed in their indictment.
"We combed it down from thousands of hours to less than an hour's worth," Assistant U.S. Attorney Patrick McGinley told the court on Tuesday. "I don't think there needs to be much context to what he said. I think it's very clear."
Prosecutors quoted Mustafa showering praise upon "Sheikh bin Laden," his honorific for the deceased al-Qaida founder; expressing support for the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon; and urging his followers to take up violent jihad.
Mustafa's lawyers protested that the bulk of these statements were undated and recovered in 2004, three years after the conspiracies alleged in the indictment ended.
Judge Forrest spent more than three hours on Thursday reviewing the evidence that prosecutors wish to submit.
"I hate surprises at trial," Forrest warned. "Let's talk about it first if you're going to go into an area that will cause some consternation."
In one remark, Mustafa called it fair game to take a kaffir
(or "unbeliever") hostage in a Muslim country.
"Then, he is booty, and you can sell him on the market," Mustafa said, according to prosecutors. "What are they doing here anyway? Most of them are spies."
Mustafa also railed against those he called "dirty Jews," as well as Christians and homosexuals.
He allegedly expressed support for violence by stating, "War is war, and their evil cannot be stopped except by killing them."
Praising the attacks on the World Trade Center and U.S.S. Cole, Mustafa said, "Enemies of Muslims are legitimate targets."
Although these remarks were enough to convict Mustafa of hate speech in the U.K., the U.S. prosecutors acknowledged in their proposed jury instructions that expansive free-speech laws here requires more evidence of a crime.
"Such association or speech, standing alone, is protected by the First Amendment," those instructions
state. "However, forming an agreement to engage in criminal activity - in contrast with talking about religious or political beliefs or events - is not protected speech."
Mustafa's lead attorney, Jeremy Schneider, a partner at Rothman, Schneider, Soloway & Stern LLP, called the statements irrelevant and "unduly prejudicial."
"I really, really, really think that if you talk about the World Trade Center and the U.S.S. Cole, it's going to shut the door to a fair evaluation of the evidence," Schneider said. "I can't imagine something more prejudicial. ... The emotional impact that a juror is going to have is just too much."
Meanwhile, a key government witness against Mustafa, would-be shoe bomber Saajid Badat, confirmed in a letter filed on Thursday that he will not travel from the U.K. to Manhattan to deliver crucial testimony in the federal trial.
There is an active indictment against Badat in the District of Massachusetts for his allegedly assistance to shoe bomber Richard Reid.
"I am aware that I will be arrested if I do enter the United States and that my chances of being granted bail are very slim," Badat wrote in a witness statement
filed today. "I am also aware that I will not be offered safe passage by the United States or its authorities.
This development could scuttle several counts against Mustafa, if Judge Forrest does not allow Badat to testify via closed-circuit TV.
With jury selection slated for Monday, Forrest remarked in court today that she intends to rule on both evidentiary issues soon.