Siraj Wahhaj and the 1993 World Trade Center Bombing . . . Again

It is a great privilege to have led a terrorism prosecution of historical significance in the early-to-mid ’90s. I think our prosecution of the Blind Sheikh (Omar Abdel Rahman) and other members of his jihadist cell laid bare in a way nothing else in the pre-9/11 era did the sharia-supremacist ideology that fuels our enemies. It showed the jihadists’ determination to hit us catastrophically in our homeland. And it powerfully illustrated the folly of making prosecution in the criminal justice system our government’s main strategy for quelling what is essentially a military challenge, most of whose operatives plot from overseas — where our courts and law enforcement agencies lack jurisdiction and influence.

I’m very proud of what the U.S. Attorney’s Office for the Southern District of New York achieved in the case. Because of my position, I’m also very fortunate to get the credit for the very hard work on behalf of the nation by hundreds of investigators and support personnel.

The downside is that details about the case continue coming back into fleeting relevance but, as more years pass into decades, memories about the details increasingly fade. People make assertions based on memory (something I find I have to check myself on more often these days), which can be importantly different, even if only slightly different, from what actually happened. Or people with varying agendas will misstate the relevant history heedless of likely inaccuracy — as if no one were going to check.

A recurring figure in this history is Siraj Wahhaj, longtime firebrand leader of the Islamic community centered around the al-Taqwa mosque in Brooklyn — where he hosted the Blind Sheikh for lectures in the early nineties. At the time, having just been permitted to immigrate to the U.S. in a colossal government snafu, Abdel Rahman was a hero among sharia supremacists for having issued the fatwa — the sharia law edict — that approved the 1981 murder of Egyptian President Anwar al-Sadat for the crime of making peace with Israel. He similarly claimed credit for approving Sayyid Nosair’s 1990 murder of Rabbi Meir Kahane at a midtown hotel. (Nosair was convicted along with the Blind Sheikh in our prosecution.)

Wahhaj is in the news again because, on Friday, he huddled at the Taqwa mosque with Zohran Mamdani, who is heavily favored to win next month’s New York City mayoral election. The New York Post’s report on the meeting, along with Yusef Abdus Salaam, a member of the radical New York City Council, includes a photo that is priceless.

Nevertheless, the Post piece revives a claim I’ve refuted a number of times over the years, describing Wahhaj as an “unindicted ’93 WTC bombing coconspirator.” The Post, the city’s right-leaning tabloid (to which I occasionally contribute) is, editorially speaking, vigorously opposed to Mamdani. So am I — he’s an avowed socialist whose policy ideas are insane; he’d be a ruinous mayor. The Post is fair in describing Wahhaj as a “terrorist apologist” — in fact, he testified as a defense witness at our trial. But we did not allege that Wahhaj was an unindicted coconspirator — in the 1993 World Trade Center bombing, or in the seditious conspiracy and bombing conspiracy charges in the indictment.

The misunderstanding involves my 30-year-old letter to defense counsel in, complying with a standard court order for the government to provide the defense with what is loosely called a “coconspirator list.”

I believe I last addressed this issue seven years ago. At that time, Wahhaj was in the news because his grandson had died in suspicious circumstances at a squalid New Mexico compound run by fundamentalist Muslims. I will repeat what I said then:

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.

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 should add that the point in time when the government actually alleges that someone is an unindicted coconspirator is at trial, when evidence of that person’s statements or actions in furtherance of the conspiracy is offered. The so-called coconspirator list itself is proof of nothing.

As I said in column seven years ago, I don’t believe we ended up offering any statements by Wahhaj — although evidence about incidents at the Taqwa mosque was offered and I’m sure his name came up. As noted above, Wahhaj was called in the defense as a sort of character witness by one of our defendants. His testimony, inadvertently, ended up being helpful to our case.

In conclusion, I think it would be entirely appropriate for voters to consider that Siraj Wahhaj is the company Zohran Mamdani keeps. But it is inaccurate to claim that I, in my capacity as the Justice Department’s lead prosecutor, alleged that Wahhaj was a coconspirator in any terrorist act or plot. On behalf of the government, I merely reserved the right to make that allegation if the occasion arose. To my recollection, it never did.

Author’s note: This post has been slightly edited (with no substantive changes) since it was originally posted, to clarify that the New York Post report included a photo, but was not about the photo (it was about the meeting), and to correct the formatting of the excerpt from my prior column.