In an awful story out of New Mexico last week, five adults were arrested on charges of abusing children, conduct that allegedly resulted in the death of one child. Apparently, the defendants are fundamentalist Muslims who were running the squalid compound as a parallel society and preparing for violent action against law enforcement, the education system, and other institutions. It is alleged that this included training at least some of the children.
The child who died, Abdul-Ghani Wahhaj, was the disabled four-year-old son of the ringleader, a man named Siraj Wahhaj. The child, whose father allegedly abducted him from his estranged wife several months ago, appears to have died during an attempted exorcism — the defendants having allegedly deprived him of his medications and attributed his health problems to possession by demons. (A New Mexico state judge has rejected prosecutors’ request to detain them without bail. Sigh . . .)
When reporters googled the main defendant, they found that he is the son and namesake of Siraj Wahhaj, a well-known (some would say notorious) sharia-supremacist imam who runs a mosque in Brooklyn (Masjid al-Taqwa). That got my phone buzzing because the mosque featured in the terrorism case I prosecuted in the 1990s against Omar Abdel Rahman (the “Blind Sheikh”) and several other jihadists; Siraj Wahhaj the elder appeared as a character witness for some of the defendants.
The elder Wahhaj has for decades been an unapologetic extremist (America is “a garbage can . . . filthy and sick,” etc. etc.). Naturally, he was once invited to give the opening invocation at a session of Congress. (More sighing.) Although incendiary statements he has in fact made are occasionally reported, what is most often reported about him is something that is not true: viz., that the United States government, in a letter written by your humble correspondent some 23 years ago, accused him of being a co-conspirator in a terrorism plot that included the 1993 World Trade Center bombing.
This urban legend never dies because the purpose of so-called co-conspirator lists is poorly understood. The misconception is that such lists, which are standard fare in big conspiracy cases, amount to public accusations of guilt. That misconception is reinforced by unidentified “former terrorism prosecutors,” who recently told the New York Times that my list was “later criticized for being overly broad.” To the contrary, these lists are a form of discovery for preparation of the defense at trial; they are meant to be inclusive because they preserve the prosecution’s discretion to offer important evidence and are not intended for public consumption.
To be clear, as I have periodically explained over the years: We did not allege that Siraj Wahhaj was a co-conspirator in the World Trade Center bombing or the overarching terrorism conspiracy.
His name does appear in the list of approximately 200 persons and entities set forth in my letter, dated February 2, 1995. I addressed the letter to defense counsel and had it hand-delivered to them in the courtroom at the start of our lengthy trial. The letter identifies those it lists as “unindicted persons who may be alleged as coconspirators” (emphasis added). That is, we were not alleging that they were co-conspirators; we were reserving the right to make that allegation during the trial — strictly for evidentiary purposes.
Consistent with federal jurisprudence and routine practice in the Southern District of New York, the trial judge (Michael B. Mukasey, later the U.S. attorney general) had issued a pretrial order directing prosecutors to provide the defense with a list of unindicted co-conspirators. This is done to alert defense counsel to uncharged people whose statements might be proved by the prosecution under the co-conspirator exception to the hearsay rule (Rule 801(d)(2)(E), Federal Rules of Evidence). Under this rule, an out-of-court statement by a member of the conspiracy, made in the course and in furtherance of the conspiracy, may be admitted against the defendants. Because conspiracies frequently include members who are not charged or otherwise named in the indictment, discovery standards require prosecutors to give defense lawyers notice of who these people are, since their statements may be critical evidence.
I do not pretend to be a Siraj Wahhaj fan, but I note that some reporting indicates that he helped police find the New Mexico compound. Let him grieve in peace over the senseless death of his grandson.
There are three reasons why these lists tend to be overly inclusive. First, they are usually not filed publicly; the point is to help the defense prepare for trial, not to make uncharged people the objects of suspicion. Second, if the prosecution fails to put a person’s name on the list and then tries to offer a hearsay statement by that person under the co-conspirator exception, the court may suppress the statement owing to the prosecutor’s failure to provide notice. Third, some conspiracy trials are very long, yet the list is provided pretrial; so composing the list involves a certain amount of guesswork about what directions the trial may go in and what information may ripen as ongoing investigations continue.
Consequently, we prosecutors provided a very expansive list of virtually everyone who had come up in the FBI’s investigation. But we took pains to avoid stating flatly that these people were co-conspirators, because of the extraordinary seriousness of the charges, the intense public interest in the case, and the fact that leaks were a constant problem.
Alas, while criminal-law practitioners instantly spot the difference between (a) reserving the right to allege that someone is part of a conspiracy and (b) actually making that allegation, many people do not. I suppose it was inevitable that my letter would be leaked and that any subtle distinction would be lost.
In any event, the list was leaked very soon after my letter was delivered. Ever since, it has been reported periodically that the government accused the listed people of being members of the terrorism conspiracy (of which all formally charged defendants were ultimately convicted). But that is not so. We simply alerted the defense that these were people/entities whose statements we might offer under the co-conspirator exception to the hearsay rules.
I do not believe we ever offered any statement by Siraj Wahhaj under that rule of evidence or otherwise accused him of participating in the conspiracy. I do not pretend to be a Siraj Wahhaj fan, but I note that some reporting indicates that he helped police find the New Mexico compound. Let him grieve in peace over the senseless death of his grandson.