Rabbi Meir Kahane
More than 15 years after El-Sayyid A. Nosair was convicted of seditious conspiracy and of murdering Rabbi Meir Kahane, a dispute has erupted over a claim by Mr. Nosair that prosecutors improperly blocked his trial lawyers from gaining access to a witness who he says would have supported his claim of innocence, court papers show.
A federal magistrate judge recently ordered a hearing on Mr. Nosair’s claim of prosecutorial misconduct, leading to a sharp response from prosecutors, who say Mr. Nosair’s contention is “absurd” and deny suppressing the witness.
The government also argues that, given what is now known about the witness, a former United States Army sergeant who became a Qaeda operative and a close aide to Osama bin Laden, the only way he could have provided exculpatory testimony for Mr. Nosair would have been to lie on the stand.
“A defendant has no right to present perjured testimony,” a federal prosecutor, Michael D. Lockard, wrote last month to Judge Richard J. Holwell of the United States District Court in Manhattan, “and Nosair can hardly invoke the court’s aid to vacate his conviction based on such a claim.”
Mr. Lockard asked Judge Holwell to overturn the order for a hearing, which prosecutors described as “clearly erroneous and contrary to law.” Prosecutors have also asked that the judge dismiss Mr. Nosair’s petition, which seeks a new trial.
Mr. Nosair, now in his 50s, was convicted of conspiracy to wage a war of urban terrorism and other charges in a nine-month trial with nine other defendants, including a blind sheik, Omar Abdel Rahman. In the years since, many of the key participants in the trial have gone on to national prominence: the judge, Michael B. Mukasey, served as attorney general under President George W. Bush, and the prosecutors included Patrick J. Fitzgerald, now the United States attorney in Chicago; Robert S. Khuzami, now director of enforcement for the Securities and Exchange Commission in Washington; and Andrew C. McCarthy, an author and commentator for National Review.
Mr. Nosair sent in his 2009 handwritten motions from the so-called Supermax prison in Florence, Colo., where he was then being held. He has since been moved to a prison in Terre Haute, Ind. The documents, which are signed by Mr. Nosair and written in the third person, include sections with about 50 lines of writing squeezed onto a page. “Petitioner’s conviction should be overturned and he be set free,” he writes at one point.
The hearing has been postponed pending Judge Holwell’s review, but the dispute is a reminder of how intertwined the threads of Islamic terrorism have been in New York since the killing of Rabbi Kahane, the founder of the Jewish Defense League, and even before that.
The witness Mr. Nosair’s lawyers wanted access to was Ali A. Mohamed, a naturalized American citizen from Egypt and one of the more intriguing figures to surface in the government’s investigations. Mr. Mohamed served in the Army in the late 1980s at Fort Bragg, N.C., and was honorably discharged in 1989. But he was a double agent, working also as a member of Egyptian Islamic Jihad, a terrorist group that later merged with Al Qaeda.
In 1989, while on active duty, Mr. Mohamed traveled to the New York area and provided military training to local Islamic militants. The United States government has said the militants included people who were later convicted of plotting terrorist attacks, including the 1993 World Trade Center bombing. But a witness for Mr. Nosair testified that the men who received training, including Mr. Nosair, were preparing to fight the Soviet forces in Afghanistan.
Indeed, Mr. Nosair’s lawyers argued that their client was not involved in a conspiracy against the United States, but rather was part of a United States-supported covert operation to train and arm the mujahideen to fight in Afghanistan. He “was on the same side” as the United States, one lawyer, Roger L. Stavis, told the jury.
Mr. Stavis and his co-counsel, Andrew G. Patel, who no longer represent Mr. Nosair, have said in recent court filings that they sought Mr. Mohamed’s testimony to bolster their argument.
“We believed that if we could have located Mohamed,” Mr. Patel wrote, “we likely could have presented him as a witness that Mr. Nosair was also acting in accordance with the United States government’s position in helping to train fighters for the war in Afghanistan, not to wage an urban war against the United States.”
A new lawyer who has been appointed to represent Mr. Nosair, Marjorie M. Smith, declined to comment, as did the two former lawyers and a spokeswoman for the federal prosecutor’s office.
Mr. Mohamed was arrested in 1998 and described his terrorist past when he pleaded guilty in 2000. Prosecutors say that by the time of Mr. Nosair’s 1995 trial, Mr. Mohamed was already an active Qaeda member who had trained Bin Laden’s bodyguards and was reporting to senior Qaeda officials.
Far from keeping his whereabouts secret from the defense, the government has said in court papers that officials extracted an agreement from Mr. Mohamed, who met with the authorities in 1994, to be available for the trial, but that Mr. Nosair’s lawyers did not ask for help in securing his presence. “Mohamed simply was not suppressed,” prosecutors wrote.