Truemors
Former federal judge Michael Mukasey -- President's Bush's new attorney general nominee
-- has quite an impressive resume. But his highest profile case is also
among his most problematic -- the 1995 prosecution of Blind Sheikh Omar
Abdel Rahman.
There's one big fish that got away in that case, and his name is Ali Mohamed,
an al Qaeda infiltrator who had trained some of the Rahman conspirators
while serving in the U.S. Army at Fort Bragg. Mohamed was also an FBI
informant who had provided information about al Qaeda to the FBI in
1993.
Mohamed was listed as an unindicted co-conspirator in US v. Rahman
(S5 93 Cr. 181), a trial covering a broad conspiracy that included the
World Trade Center bombing and a thwarted June 1993 plot to destroy New
York City landmarks.
Mohamed was never called to answer charges in the case -- but he was called to testify.
He didn't show up.
Roger
Stavis, defense attorney for El Sayyid Nosair, one of the defendants in
the conspiracy, tried to get Ali Mohamed to testify. He sent out
private investigators to locate Mohamed and serve a subpoena. Stavis
wanted to show that Mohamed had assisted the conspirators as an agent employed by the United States government, which he believed would render harmless the terror cell's jihad training activities on U.S. soil.
The defense investigators couldn't find Mohamed. But the prosecutors did.
The defense problem was laid out by Stavis in open court on September 1, 1995:
15 MR. STAVIS: Your Honor, we are requesting a
16 asked missing witness instruction with regard to Ali
17 Mohammed. Ali Mohammed, your Honor will recall, was the
18 person who came from Fort Bragg, North Carolina, who was
19 assigned to the United States Army Special Forces --
20 THE COURT (Mukasey): Yes, we saw him on that splendid
21 videotape.
22 MR. STAVIS: And trained Mr. Nosair and others
23 for Afghanistan. When we attempted, Mr. Barrett attempted
24 to find Ali Mohammed, he found a friend at Fort Bragg who
25 knew his wife was in California. His wife hadn't seen him
1 for over a year. We could not bring him in. Although he
2 was very much, I would submit, a part of the defense case,
3 we couldn't bring him in and we understand that he may have
4 some connection with the government at this time.
5 THE COURT: I don't think a missing witness
6 charge on that gentleman is warranted and I am not going to
7 give one.
Emphasis
added by me. Here's where the story gets interesting. Despite Stavis'
inability to locate Mohamed, the prosecutor -- Andrew McCarthy -- had
no such problem.
The following stipulation was entered during on March 21, 2001, during US v. Usama bin Laden,
the trial for the East African Embassy bombings, a plot which Mohamed
played a major role. (He pleaded guilty in exchange for sentencing
considerations, but he has subsequently disappeared from the prison
system. He had not been sentenced as of last month.)
Paragraph 1. If called as a witness Special Agent Harlan Bell would testify that:
1.
In or about 1994 Agent Bell was assigned to the New York office of the
FBI and could be reached at telephone number 212-335-2611.
2. In
the fall of 1994 Agent Bell sought to arrange an interview of Ali
Mohamed by having an FBI agent in California contact Ali Mohamed's wife
to advise her that the FBI wished to interview Ali Mohamed.
3. On
or about December 9, 1994 he interviewed Ali Mohamed in San Jose,
California in the company of Assistant United States Attorney Andrew C.
McCarthy who was an Assistant United States Attorney in the Southern
District of New York.
4. Ali Mohamed is a person depicted in the photograph in Government Exhibit 4 which photograph is identified as Abu Mohammed.
Paragraph 2. It is further stipulated and agreed that if called to testify as a witness, Assistant United States Attorney Andrew C. McCarthy would testify that:
1. On or about December 22, 1994 his office telephone number was 212-791-1940.
2. On or about December 9, 1994 he attended the interview of Ali Mohamed in California.
3. On
or about December 22, 1994 at approximately 5:13 p.m. New York time he
sent by facsimile from New York a letter to Ali Mohamed concerning a
subpoena that had been served upon Ali Mohamed the prior week.
4. On
or about December 22, 1994 at approximately 5:14 p.m. New York time he
received by facsimile a copy of the letter he sent to Ali Mohamed
reflecting the signature of Ali Mohamed acknowledging receipt of the
letter.
Emphasis added. Whose subpoena was
this? It's not clear (there are anecdotal reports, but I can't confirm
them at this time). What is crystal clear, at any rate, is that the
prosecutor was able to reach Ali Mohamed within the same time frame
that the defense could not -- just a couple weeks before the Rahman
trial began. And it's clear that the prosecution declined to provide
this information to the defense.
It's also clear that Mohamed
was in close contact with the FBI, possibly cooperating, at a crucial
pre-trial period, but that his name showed up on a list of unindicted
co-conspiratiors a couple of months later.
All this apparently chummy activity was going on during a period in which the FBI and INS had arrested Mohammed Jamal Khalifa
and Mohamed Loay Bayazid in California, just a short drive from
Mohamed's home (where the FBI interview took place). The interview took
place on December 9, 1994. Khalifa and Bayazid were arrested on Dec.
16, 1994. Then on Dec. 22, 1994, McCarthy sent Mohamed a letter about
that subpoena -- its contents were not disclosed in court.
What
was Judge Mukasey's part in all this? The only thing that is certain
from the transcripts is that it was happening under his nose. Which is,
perhaps, not the sort of attorney general one might seek to replace
Alberto Gonzales, for reasons that should be obvious.
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