Bin Laden's Spy And Judge Mukasey

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Bin Laden's Spy And Judge Mukasey

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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:

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.)

Emphasis added. Whose subpoena was this? It's not clear (there are credible 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-conspirators 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.

J.M. Berger is editor of INTELWIRE.com.