September 10, 1998: Ali Mohamed Secretly Arrested Despite Failure to Share Information Between US Agencies

Ali Mohamed is finally arrested after testifying at a grand jury hearing. The arrest is officially kept secret, but the media will report it one month later. [New York Times, 10/30/1998] Patrick Fitzgerald is on the prosecutor team that subpoenaed Mohamed to appear, but apparently he and the other prosecutors know very little about Mohamed. Fitzgerald blames this on a legal “wall” between intelligence gathering and criminal prosecution. He later will relate what happened on the day Mohamed testified: “Ali Mohamed lied in that grand jury proceeding and left the courthouse to go to his hotel, followed by FBI agents, but not under arrest. He had imminent plans to fly to Egypt. It was believed [by the prosecutors] at the time that Mohamed lied and that he was involved with the al-Qaeda network but Mohamed had not by then been tied to the [embassy] bombings. The decision had to be made at that moment whether to charge Mohamed with false statements. If not, Mohamed would leave the country. That difficult decision had to be made without knowing or reviewing the intelligence information on the other side of the ‘wall.’ It was ultimately decided to arrest Mohamed that night in his hotel room [and he was arrested]. [The prosecution] team got lucky but we never should have had to rely on luck. The prosecution team later obtained access to the intelligence information, including documents obtained from an earlier search of Mohamed’s home by the intelligence team on the other side of ‘the wall.’ Those documents included direct written communications with al-Qaeda members and a library of al-Qaeda training materials that would have made the decision far less difficult. (We could only obtain that access after the arrest with the specific permission of the Attorney General of the United States, based upon the fact that we had obligations to provide the defendant with discovery materials and because the intelligence investigation of Mohamed had effectively ended.)… Mohamed [later] stated that had he not been arrested on that day in September 1998, he had intended to travel to Afghanistan to rejoin Osama bin Laden. Thus, while the right decision to arrest was made partly in the dark, the ‘wall’ could easily have caused a different decision that September evening that would have allowed a key player in the al-Qaeda network to escape justice for the embassy bombing in Kenya and rejoin Osama bin Laden in a cave in Afghanistan, instead of going to federal prison.” [US Congress, 10/21/2003] Mohamed’s associate Khaled Abu el-Dahab, now living in Egypt, wil hear of Mohamed’s arrest and attempt to leave the country, but will be arrested in October 1998. He will be put on trial there and sentenced to 15 years in prison (see 1999). [San Francisco Chronicle, 11/21/2001]