Judge Michael Mukasey And A Curious Omission In The Omar Abdel-Rahman Trial

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-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.

UPDATE, April 1, 2008: Andrew McCarthy's new memoir, a, expands on the December 1994 meeting with Ali Mohamed. According to McCarthy's account of the meeting, which is somewhat sparse relative to its emphasis in the book:

The subpoena in question was indeed issued by Nosair's defense.

Mohamed did not disclose anything at the meeting which would have helped the Nosair defense, which is why it wasn't disclosed in the trial under Brady rules.

Few details were disclosed about what Mohamed had to say, except that he discussed Nosair and talked about Osama bin Laden.

McCarthy argues Stavis didn't really want to put Mohamed on the stand, since Mohamed's testimony would actually have undercut the "collusion" defense which was the entire reason Stavis was talking about Mohamed in the first place.

How this squares against Stavis' outright statement that he couldn't locate Mohamed is somewhat unclear, but there's every indication that Mohamed did in fact spend a significant amount of time at his known California residence after the December 1994 meeting. In other words, he shouldn't have been all that hard to find.

This may not be the end of the story on this meeting, but it's an official and fairly straightforward statement which (for now) I simply wanted to add to the record.

THE INFILTRATOR: ALI MOHAMED

Ali Mohamed was an Egyptian Islamic Jihad member and al Qaeda associate who infiltrated the U.S. Army and acted as an informant for the CIA and FBI, even as he took orders from Osama bin Laden and Ayman Al-Zawahiri. INTELWIRE's J.M. Berger exhaustively researched Mohamed's life for the National Geographic Channel in 2006.

Ali Mohamed Sourcebook

Nat Geo DVD, J.M. Berger Lead Researcher

Who Is Ali Mohamed?

Al Qaeda Spy Crafted 9/11 Network

New Link Between Ali Mohamed And 9/11

Who Masterminded 1993 WTC Bombing?

'Coleman Affidavit' on Ali Mohamed

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