Able Danger Blog

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Friday, December 01, 2006

Lance vs McCarthy

Andy, answer the question! Did you meet with Mohamed in December 94?

Email exchange published at

Mr. Lance:

I did not respond to your email because I believe you are an irresponsible journalist. That, obviously, is why National Geographic and Towers Productions parted ways with you this summer.

Had you not been involved in the project, I would gladly have cooperated with it, as I did with their earlier, very well done production. And as I routinely do even with journalists who disagree vigorously with me ... as long as they are professional.

Save your bravado for someone who might be impressed by it. You bore me.

What I told the O'Reilly producer was mild compared to what your atrocious book merits. As you presumably know (although with you, one can't be sure), it matters not how many pages you write nor how long your "time-line" is. For example, in the narrow matter of what you say about me, it is very simple.

You falsely accuse me of obstructing justice by advising a witness, Ali Mohammed, to ignore a defense subpoena from Sayyid Nosair -- in a case in which I have a lengthy record of providing the defense with voluminous evidence unfavorable to the government, and in a career in which I have a lengthy record of advising all witnesses that it is mandatory to comply with court orders, regardless of whether their evidence would help or hurt prosecutions.

You base this scurrilous allegation on the uncorroborated word of Ibrahim Elgabrowny (Nosair's cousin), a convicted terrorist with a long track record of making false claims.

Of course, your book fails to note not only Elgabrowny's checkered record but also that the allegation at issue is one neither Elgabrowny and his many counsel nor Nosair and his many counsel ever dared make in court ... even though, had I done what you claim I did, it would doubtless have called for a reversal of Nosair's convictions.

You exacerbated that smear by speculating falsely -- and based on no evidence -- that I provided material support to al Qaeda by giving what's been called a "co-conspirator list" to Ali Mohammed, notwithstanding that he was one of those I named on the list.

Though you claim to be a thorough researcher, you've plainly managed to miss the several articles I have published which discuss this event, all of which note that Mohammed got the list through defense channels.

Of course, you are under no obligation to believe my version of events (after all, I have never claimed to be able to identify which defendant was responsible); but a responsible journalist would at least have acknowledged my statements.

Then again, a responsible journalist would not so cavalierly make such a weighty and preposterous an allegation in the first place.

In any event, I will comment on your libelous work as I see fit. I am not going to do anything jointly with you to help you sell books. As for who is "man enough,"

I welcome the prospect of the public looking at your record and mine, at your version of events and mine, and making up its own mind.

Very truly yours,
Andrew C. McCarthy


In your e-mail response you did a number of things that merit comment: 1) First you avoided answering my demand for a retraction. You made several false statements about my book on "The O'Reilly Factor" on the day of the book's publication, when it was virtually impossible for you to have digested the 670 page work. TRIPLE CROSS had only been offered for sale for the first time that morning. a) You failed to explain your false and sweeping allegation that I relied "on convicted terrorists and convicted murderers as sources" for the book. b) you didn't address your false allegation that "Everything he says we were hiding about Ali Mohamed was presented in open court."

2) Second, you engaged in the classic forensic device of extension. I never relied on El-Gabrowny's allegation. I reported it for what it was -- hearsay -- and cited two dozen pieces of evidence including the verbatim interview statements of defense attorney Roger Stavis and retired FBI SA Jack Cloonan, along with the sworn affidavit of SA Dan Coleman that put you in California with Mohamed on December 9th, 1994. I'm going to attach the precise section of the book dealing with your interaction with Ali Mohamed around the time of the "Day of Terror" trial. The section from Chapter 17 is documented with 24 end notes including multiple references to federal trial transcripts.

3) The thoroughness of my research -- the book includes 50 pages of such end notes -- puts to lie your libelous allegation that I am "an irresponsible journalist." 4) Fourth, you jumped to the false conclusion that "National Geographic and Towers Productions parted ways" with me because of this.

All you had to do was read the Huffingtonpost I did on August 29th documenting that Towers' breach of contract was entirely the result of the refusal by Jack Cloonan, Mary Jo White and Tommy Corrigan to allow me to see their interview transcripts -- In short NGC knuckled under to a trio of your Justice Department colleagues. My removal from the documentary, which was based entirely on my work, had nothing to do with my accuracy as a reporter.

5) Fifth, you describe TRIPLE CROSS as an "atrocious" book and make additional false allegations concerning what I reported about you.

a) I never accused you of obstructing justice. b) I never accused you of telling Mohamed to ignore a subpoena. I stated the allegation of El-Gabrowny, whom I made clear was a convicted terrorist. But more importantly through my research, I put you in the room with Mohamed -- an admitted terrorist who not only planned, but helped to execute the African Embassy bombing plot.

Once again you never answered the questions set forth in my July 13th e-mail to you. Why didn't you indict Mohamed? Further, why did you feel compelled to fly across the country to meet with him? If you were in the man's presence and you were so concerned about complying with Brady Rules, why didn't you help to facilitate his testimony?

6) Sixth, you alleged that I "smeared" you "falsely" based on "no evidence." Examine the 24 end notes below. El-Gabrowny's allegation was one of 24 separate pieces of the mosaic that I drafted to tell the story of your interaction with Ali Mohamed. As to why El-Gabrowny never raised the allegation in court, he makes it clear in his statement (which I sent to you in the June 13th e-mail) that he only learned of your alleged advice that Mohamed ignore the subpoena, when he was on the same tier of the MCC with Mohamed in 1999 -- four years after the trial.

7) Finally, I NEVER alleged (as you falsely state) that you provided the un-indicted co-conspirator's list to Mohamed. Another extention. You're making false allegations, asking me to defend ground that I never took.

Your e-mail is the equivalent of that old legal saw: "If you don't have it on the facts, pound on the law. If you don't have it on the law, pound on the facts. And if you don't have it on the facts or the law, pound on the table. Your e-mail, like your attack on me for "O'Reilly" is an exercise in table pounding. I understand where your anger is coming from Andy. You and the SDNY Feds have enjoyed an unchalleged reputation as terror busters and my three investigative books are the first to connect the dots on your mistakes.

Why should anybody care? Because there has not been sufficient reform in the FBI and Justice Department with respect to counter-terrorism to prevent the next al Qaeda attack. I make that clear in Chapter 41 of the book, relying, in part, on a series of DOJ Inspector General reports. Clearly you're hurt that your attempt to do another drive-by on me in Sunday's New York Post got derailed. But I still expect you to be man enough to admit when you are wrong and either apologize or retract the libelous statement you made on "O'Reilly."

As for me, I stand by every word of TRIPLE CROSS.


Peter Lance



One of the most bitter critics of Gorelick, and the “wall” she raised with her memo, was a former prosecutor in the SDNY who once technically worked under Gorelick. Andrew C. McCarthy was a street-smart AUSA who put himself through Columbia College by working as a U.S. marshal The day after Gorelick sought to defend herself in a Washington Post Op-Ed piece entitled “The Truth About the Wall,” McCarthy wrote a scathing critique for the conservative National Review Online asserting that Gorelick “belongs in the witness chair, not on the commissioner’s bench.”
Pointing out accurately that the “wall memo” was completely unnecessary, McCarthy branded Gorelick “a key participant” in the government’s “pre-9/11 intelligence failure.” As it turns out, however, in December 1994—the very same moment when Gorelick and Secretary of State Christopher were pushing to extradite Khalifa—McCarthy himself was engaging in his own disconnection of the dots.
At the center of his attention was Ali Mohamed.
After years of missing the connections between Ali Mohamed’s trained cell members, from Nosair to Abouhalima and Salameh, the Feds of the Southern District had assembled an extraordinary body of evidence linking Sheikh Rahman and his eleven co-defendants in what they called “a “jihad army” bent on waging a war of urban terrorism in the streets of New York.
In late December 1994, McCarthy and his co-prosecutors Patrick Fitzgerald and Robert Khuzami were gearing up for the “Day of Terror Trial,” in which they would seek to convict the blind Sheikh and his cell for the “bridge and tunnel plot,” which Emad Salem had helped to break. This was the Feds’ way of mopping up for their failure to see the conspiracy in the Kahane murder in 1990, and the FBI’s inability to stop Yousef in 1992 before he planted the World Trade Center bomb.
The months-long trial, grounded in a seldom-used Civil War era law prohibiting seditious conspiracy, would allow the SDNY to connect the al Qaeda links going back to the rabbi’s killing. Nosair himself would be charged along with the Sheikh; and this time the Feds would nail him for the Kahane murder—not just the low-level gun charge the Manhattan D.A. had been forced to accept in 1991.
For this second trial Nosair would be represented by Roger Stavis, a brilliant criminal defense attorney who avoided the theatrics of a William Kuntsler. As Stavis prepped for trial, he was shocked to find, among the documents seized from Nosair’s house, those Top Secret training manuals from Fort Bragg. This caused him to start asking questions about the mysterious “Ali Mohamed,” the U.S. Army sergeant who seemed to have played some role in training Nosair and his cohorts.
Stavis immediately began investigating Mohamed himself.
“I got down to Bragg months before the FBI ever thought to show up,” recalls Stavis. “You would have thought that those documents the FBI recovered on the Joint Chiefs and those Top Secret manuals would have prompted the Bureau to figure out who Ali Mohamed was, long before this trial.”
His defense for the Prozac-popping Egyptian was that Nosair was trained by Ali Mohamed, who had been an “asset” variously of the CIA and the U.S. Army, and thus the U.S. government itself should share culpability for Nosair’s shooting spree. The Kahane murder, in Stavis’s argument was “blowback” from America’s covert support for the Mujahadeen and Ali Mohamed .was a merely an expeditor.
In the course of his investigation, Stavis connected more dots about Mohamed than the government itself had ever managed.
“I have him in Fort Bragg,” recalls Stavis. “I have him here [in New York] training these people. And then I have him in Afghanistan, because one of the witnesses who trained with him in New Jersey went to Afghanistan, saw him there, and also saw him in New Jersey. And he stayed at Nosair’s house. I refer to that as completing the triangle.”
So Stavis wrote up a subpoena for Ali Mohamed and started looking for him.


“This was late ’94,” says Stavis. “I wanted him. And I tried everything to find him.” But Mohamed, it seemed, had disappeared. “Even his wife hadn’t seen him out in California,” Stavis says. “I invoked the Classified Information Procedures Act [CIPA],” a special set of legal procedures for getting witness testimony in potentially classified matters. “I think a lot of bells went off in Langley,” the CIA headquarters. “People went running around.”
Finally some bells went off in the New York office of the FBI and the SDNY.
At the time, Ali Mohamed was in Africa, staying in a Nairobi safe house and interacting daily with Wadih El-Hage, one of the leaders of the embassy bombing cell. Earlier that year Mohamed had been in Khartoum, staying in Osama bin Laden’s own house. After surviving an assassination attempt, bin Laden had personally asked Ali to train his bodyguards.
Now, with Stavis seeking Mohamed’s testimony, prosecutor Andrew McCarthy was worried. At that point, no one outside the Bureau or the SDNY knew that Ali had been an FBI informant. McCarthy could only guess what the former army sergeant might say if he got on the stand under oath in open court.
“If Ali would have been put on [the stand] at that point in time, [he] would have been viewed as an agent provocateur,” says retired special agent Jack Cloonan. “Maybe there would have been an issue of entrapment raised. It wouldn’t have helped the government’s case.” That subpoena became “a huge, huge issue for Ali” as well, remembers Cloonan.
As an al Qaeda spy who was playing two FBI offices off each other by that point, Mohamed had reason to be concerned. If he was compelled to testify in federal court with the national media covering the trial, the truth about his espionage career from Fort Bragg onward would have been exposed by defense attorneys like Roger Stavis. “That would have effectively blown his cover as an FBI informant,” says Stavis, and “shut him down as a spy then and there.”
By the first week in December 1994, al Qaeda’s military commander, Mohammed Atef, met with Ali at El-Hage’s house and ordered him to do surveillance of U.S., British, French, and Israeli targets in Senegal.


But according to Cloonan, prosecutor Andrew McCarthy was so desperate to get to Mohamed. that he contacted the FBI’s San Francisco office, and Ali’s control agent, John Zent, called his wife Linda Sanchez to find out where he was. Nairobi bombing cell member L’Houssaine “Joe” Kerchtou later testified that Mohamed “received a call from the United States from a friend of his saying that he had some problem and he should come back.”
The “friend” was Khalid Dahab, the Egyptian who was running Mohamed’s Santa Clara cell in his absence. Dahab placed the call to El-Hage’s house after Linda told him that the Feds wanted an audience with her husband.
Mohamed later confirmed that after receiving a phone call in late 1994 from “an FBI agent who wanted to speak to me about the upcoming trial of United States v. Abdel Rahman,” he abruptly canceled the Senegal surveillance and headed back to the States. As Jack Cloonan recalls, he even expressed anger when the Feds failed to reimburse him for his airfare.
By that point, however, McCarthy was so worried about Stavis’s subpoena that he actually flew to California with New York FBI agent Harlan Bell to interview Mohamed. True to form, Ali shined them on. A master at spinning lies that seemed odd enough to be credible, Ali told them that he was working in Kenya in the scuba diving business. He admitted that he’d made two prior trips to Pakistan, but claimed that the first in 1988 was as an “observer,” and the second in 1991 was in response to a request by the late Mustafa Shalabi to move Osama bin Laden out of Afghanistan.
It was the second time in two years that Mohamed had revealed his association with . the al Qaeda leader.
Keep in mind that during his treasonous support for the terror network, Mohamed was a U.S. citizen. As recently as August 1994 he had been in the U.S. Army reserve. His enlistment oath bound Ali to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and “bear true faith and allegiance to the same . . . so help me God.” When he was sworn in as an assistant U.S. attorney, McCarthy had taken a similar oath. Given the extraordinary case he’d built against the Sheikh and his cohorts, McCarthy knew full well who Mustafa Shalabi was. In fact, McCarthy had even named the dead Egyptian as an unindicted co-conspirator in the upcoming case, along with 171 others, from Osama bin Laden to the Murteza brothers, the Connecticut gun dealers who dealt with Nosair. Even the murdered Abdullah Azzam was on the list, along with Mohamed Jamal Khalifa, whom Jamie Gorelick was about to help eextradite from U.S. custody.
McCarthy and co-prosecutors Fitzgerald and Khuzami were about to argue in front of a jury that the Sheikh’s cell (which Ali had trained) was part of a “jihad army” fighting a war against America in a series of battles. The Kahane murder was one battle. The Trade Center bombing another and the Day of Terror plot represented just the last outbreak in that war.
Having read the Nosair files, McCarthy knew that Mohamed had commuted up from Fort Bragg to train what his colleague Robert Khuzami would call the “soldiers in this army.” As lead prosecutor on the case, McCarthy must have realized that Ali played a key role in that “military” hierarchy. In fact, he’d even named Ali himself as an unindicted co-conspirator. And yet now, on December 9th in Santa Clara, McCarthy sat listening with Special Agent Bell, as Ali handed them a story about going off to Africa to run a diving business.
“I didn’t disclose everything I knew,” Mohamed said later, in a masterpiece of understatement.
From what we know on the public record, after McCarthy and Bell left that meeting and returned to New York there were no immediate repercussions for Mohamed, short of his name turning up on that unindicted co-conspirators list. But at this point in the story, the question is, Why? Why did McCarthy and Bell fly more than 3,000 miles to speak to the al Qaeda spy? Were they after the truth? Did they really want to know just how deep his roots ran with al Qaeda and the EIJ? Were they hoping to get enough on Ali to convert him from an unindicted co-conspirator to a full blown defendant in the Day of Terror Trial? Or was the meeting really about damage control?


The answer may lie in a hand-scrawled letter from El Sayyid Nosair’s cousin Ibrahim El-Gabrowny, which he wrote as part of his appeal after being convicted in the Day of Terror plot. In it he contends that in October 1999, four years after his conviction, he found himself in the Metropolitan Correctional Center (MCC), the federal jail in lower Manhattan. In the cell next to his on the Nine South tier, where all terror suspects are housed, was Ali Mohamed (whom the Feds finally arrested in September 1998).
Referring to himself in the third person, El Gabrowny described his interactions with Mohamed:
El Gabrowny and Ali Mohamed engaged in several conversations . . . At one time El Gabrowny asked Ali Mohamed whether or not he ever received the subpoena that Nosair’s lawyer sent to him [and] further if he did received the subpoena, why he did not come to testify.
El Gabrowny then makes a shocking allegation:
Ali Mohamed . . . added that regarding the subpoena that was sent to him by Nosair’s lawyer, he actually received it and was prepared to abide with the order and come to testify on Nosair’s behalf. But . . . Mr. Andy McCarthy ‘the AUSA on El Gabrowny and Nosair’s case’ came accompanied with an FBI agent and paid him a visit. Ali Mohamed further added, during this visit Mr. McCarthy told him that he ‘i.e. Mr. McCarthy’ knew about the subpoena . . . Then Mr. McCarthy advised Ali Mohamed to ignore the subpoena’s order and not to go to testify on Nosair’s behalf and that Mr. McCarthy will cover up for him regarding that.
In his appeal, El Gabrowny—who by then had become something of a jailhouse lawyer—argued that “Ali Mohamed’s testimony was crucial to refute a major part of the Government’s allegation, and that would substantially effect the case for Nosair, El Gabrowny and the rest of the co-defendants. Accordingly, if Elgabrowny’s claim is true, this will represent a sever[e] Brady violation, since the Government through it’s representative Mr. Andy McCarthy acted maliciously to destroy evidence and withhold exculpatory information from the defense, that if they were revealed—they would substantially effect the jury’s mind and change the whole outcome of the trial.”
Here El Gabrowny refers to a federal rule promulgated after the historic 1963 U.S. Supreme Court case Brady vs. Maryland, which held that “the suppression by prosecutors of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”


Later at trial, when defense attorney Roger Stavis sought to question Norvell De Atkine, the Fort Bragg officer who used Ali Mohamed in the training videos, Andrew McCarthy objected on grounds of “competence,” arguing to the judge that “This witness is being proffered so that they don’t have to put Ali Mohamed on the stand to ask him about it himself.” In short, McCarthy was attempting to use Mohamed’s absence from the trial to his advantage.
Later that day, after Stavis tried to enter Mohamed’s army service record into evidence, McCarthy objected: “He [Stavis] wants to put in pages of stuff, detailed minutia about the guy’s career in the army which is not relevant to the case.”
But the army career of Ali Mohamed couldn’t have been more relevant to that case. He had infiltrated the army as a phantom spy for bin Laden, as surely as he had infiltrated the FBI—and trained the key cell members of the very “jihad army” that was currently on trial for waging war against the United States.
In legal terms, El Gabrowny’s note amounted to double hearsay. But was it nonetheless an accurate account of a conversation he had with Ali Mohamed? Clearly the allegation was serious enough to warrant further investigation. If a federal prosecutor like McCarthy had actually intervened with Mohamed to keep him from honoring a federal subpoena, that might constitute a violation of the Brady rules.
On June 9, 2006, I contacted McCarthy by e-mail, sending him a copy of El Gabrowny’s note and asking him for a comment. He never responded.
When I interviewed Roger Stavis on March 17, 2006, he said he’d never heard the charge that McCarthy had encouraged Mohamed not to testify. But he emphasized that “we couldn’t find Mohamed,” and suggested a reason: “You have to understand, the Feds didn’t want Afghanistan in the case at all. It undermined the entire theory of their prosecution.”
In any case, as the Day of Terror trial commenced on January 30, 1995, Ali Mohamed ignored Stavis’s subpoena and never showed up at court. Even if we dismiss El Gabrowny’s hearsay allegation that McCarthy told him to stay away McCarthy was certainly aware that Stavis wanted him on the stand. He’d been in contact with Mohamed as late as December 9th, and could have acted to facilitate his appearance at trial. But he didn’t..
“They didn’t want him to testify for the same reasons that I did,” says Stavis. “I’m telling you that I would have done anything to get him on the witness stand.”
Ali might have been protected by the Feds that December 1994, but he certainly wasn’t loyal to them. Immediately after his meeting with McCarthy and Special Agent Bell, Mohamed informedf on them to Mohammed Atef, al Qaeda’s military commander. Perhaps fearing that the FBI was getting too close, Atef told Mohamed not to return to Nairobi.


Still, to maintain his cover as an FBI informant, Mohamed continued talking to the Feds. On December 22, an hour and twenty minutes after talking to Wadih El-Hage in Kenya, he called Andrew McCarthy. If the Bureau had been vigilant enough to monitor that single phone call, it might have led them to Osama bin Laden.
Why? Because as they eventually learned, the cell phone Mohamed used to call McCarthy was later used by El-Hage just before he went to see bin Laden.
But Mohamed continued to snooker McCarthy. On February 2, 1995, just after the start of trial, McCarthy sent the list of unindicted co-conspirators to various defense attorneys in the Day of Terror case. Somehow Ali Mohamed got a copy of it. Did McCarthy give it to him? We don’t know, but a copy was found in Mohamed’s house when the Feds searched it more than three years later. Ali later admitted that “I obtained a copy of the co-conspirator list for the Abdel Rahman trial. I sent the list to El Hage in Kenya expecting that it would be forwarded to bin Laden in Khartoum.” Using the code words of the tradecraft he knew so well, Ali addressed the list to “the Supervisor” (bin Laden), and signed it “Haydara,” one of his many aliases. Thus, while pretending to cooperate with the Feds, he was betraying their most confidential communiqués.
Throughout his dealings with Andrew McCarthy, Mohamed remained loyal to al Qaeda. And yet McCarthy, who fully understood the deadly power of the “jihad army,” seemed almost protective of him. Why? Why would an ex-U.S. marshal and savvy federal prosecutor like McCarthy, so willing to criticize Jamie Gorelick for raising the “wall,” fail to connect the dots on Mohamed himself after meeting with him face to face at the end of 1994?
Whatever the reason, Mohamed would thrive for another four years before his espionage career came to an end.
1. Andrew C. McCarthy, “The Wall Truth,” National Review Online April 19th, 2004.

2. U.S. vs. Omar Abdel Rahman et. al. S593CR.181 (MBM) January 30th, 1995.

3. Author’s interview with Roger L. Stavis March 17th, 2006.

4. US v Ali Mohamed, S(7) 98CR.1023 (LBS Sealed Complaint, September 1998 (Affidavit of Daniel Coleman, FBI Special Agent; bin Laden unit New York Office).

5. Author’s interview with FBI Special Agent Jack Cloonan (ret.) May 4th, 2006.

6. U.S. vs. Ali Mohamed, S(7) 98CR.1023 (LBS) transcript of plea session U.S. District Court, Southern District of New York, October 20th, 2000.

7. U.S. vs. Osama bin Laden, et al. S(7) 98 CR.1023 (LBS) Testimony of L’Houssaine Kerchtou, February 22nd, 2001.

8. Ibid. Plea session transcript.

9. US v. Osama bin Laden et al, S(7) 98 Cr. 1023, March 26, 2001. Testimony of Patrick Fitzgerald. February 22nd, 2001.

10, US v. Osama bin Laden et al, S(7) 98 Cr. 1023, March 26, 2001

11. Ibid Coleman affidavit.

12. U.S. Military Enlistment Oath.

13. U.S. vs. Omar Abdel Rahman et. al. S593CR.181 (MBM) January 30th, 1995.

14. Ibid. Pleas session transcript.

15. Handwritten note of Ibrahim El-Gabrowny attached as exhibit to the appeal of his conviction in U.S. vs. Omar Abdel Rahman et. al. S593CR.181 (MBM).

16. Laural L. Hooper, Jennifer E. Marsh and Brian Yeh, Treatment of Brady v. Maryland Material in United States District and State Courts’ Rules, Orders, and Policies Report to the Advisory Committee on Criminal Rules of the Judicial Conference
of the United States October 2004

17. U.S. vs. Omar Abdel Rahman et. al. S593CR.181 (MBM) transcript p. 14165. July 13th 1995.

18. Ibid Stavis.

19. Ibid. Pleas session transcript..

20. U.S. vs. Osama bin Laden, et al. S(7) 98 CR.1023 (LBS)
May 1st, 2001.

21. Ibid March 26th 2001 pp. 3337-3338,

22. Ibid.

23. U.S. vs. Ali Mohamed, S(7) 98CR.1023 (LBS) transcript of plea session U.S. District Court, Southern District of New York, October 20th, 2000. Ibid. Plea session transcript.

24. Letter to Judge Leonard B. Sand from Mary Jo White, U.S. Attorney for the SDNY and Alan R. Kaufman, Chief of the Criminal Division requesting that Ali Mohamed’s letter and attachments remain under seal. August 27th, 1999.