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For 2008 Kidnapping of Journo Najibullah Cited 3rd Geneva Convention But Denied So Hearing

By Matthew Russell Lee, Patreon

SDNY COURTHOUSE, June 27 – Haji Najibullah was arraigned in November 2020 on charges of having kidnapped and held hostage American journalist David Rohde from November 10, 2008 to July 2009 in Afghanistan, demanding the release of Taliban prisoners and money from Rohde's family. 

  U.S. District Court for the Southern District of New York Judge Katherine Polk Failla held the arraignment. Inner City Press covered it. 

   Najibullah had been captured in Ukraine, and presented before SDNY Magistrate Judge Ona T. Wang on October 28, 2020. He was assigned a Federal Defender, Mark Gombiner; he was been informed of his rights of the Due Process Protections Act.

Jump cut nearly a year later on October 15, 2021, when Najibullah and Gombiner appeared again before Judge Failla. Inner City Press again covered it. Judge Failla admonished Gombiner not to give speeches for the media. But he argued about the absurdity of a country bombing another, then calling the fight-back a crime. He also questioned how the US gave only 200 documents under discovery.

 Judge Failla said she envisioned a defense motion to compel and a CIPA motion from the US, and urged that the parties confer.

Jump cut all the way to April 10, 2024, when Judge Failla held a conference in advance of an April 18 hearing that, it seems, will be partially sealed. In the interim, Judge Jesse M. Furman has granted in large part Inner City Press' motions to unseal CIPA hearing transcripts. Why not here? Thread:

Federal Defender: We'll have an interpreter in court Judge:

AUSA Robles, if Mr. Najibullah testifies, can he use his own interpreter? AUSA: I don't object to that Judge: An interpreter may also testify. AUSA: We have clearer our day for this Judge: You and me both

 Judge: Are you still pursuing the specialty arguments? Federal Defender: Yes. We had moved for evidentiary hearings on that, and also the law of armed conflict. Judge: Who might I be hearing testimony from on the combatant issue? Federal Defender: Expert witnesses

 Judge: I don't know if I want a hearing on that. I take note that's what you are offering. Anything else? Federal Defender 2: We also have Miranda waiver issues

Judge: Yes, Agent Wyka [apparently Joint Terrorism TF Officer James Wyka] will address that

 Federal Defender 1: Once the litigation around our CIPA 5 motion is resolved, we'll put in a schedule for Rule 15 motion practice. Also, there will be the May 6 CIPA hearing. 

Judge: You are of course mindful of other classified cases you have before me

 AUSA: Courtroom 24B, that's a classified courtroom, is that right? Judge: No. But there are rooms adjacent to the courtroom we could use.  AUSA: I don't expect Wyka implicating classified courtroom.  But you've seen the rest. Judge: We could use the jury room

 Judge: I'm told that 24B is the Marshals' preferred way to move Mr. Najibullah in and out of the holding cell. We are adjourned.

On April 17, on the eve of the partially sealed hearing, the US Attorney's Office submitted four exhibits - three it asked to seal, and the other (a France 24 video in which Najibullah identified as "Abu Tayeb" speaks of suicide bombing and holy war.

On June 27, a proceeding that Inner City Press live tweeted, here

now SDNY proceeding in US v. Haji Najibullah, Judge Failla will be issuing an oral decision (Najibullah not present due to MDC Brooklyn snafu) 

Federal Defenders: We waive Mr. Najibullah's appearance due to BOP's inability to produce him. Judge Failla: We have an interpreter on stand-by. You are willing to go forward? FD: Yes.

 Judge: I find that I have jurisdiction, despite the prisoner of war issues

Judge Failla: I reject the defense's arguments under the Third Geneva Convention (GPW), and under the political questions doctrine, and AR 190-8. My jurisdiction is not curtailed.

 Judge Failla: I call for a hearing, then. I am reluctant to cede authority on this to the Executive Branch. It would be great if the parties could agree on written materials, without need for a witness. Get back to me.  I have a three week civil trial in July

Judge Failla: The trial date in US v. Najibullah may have to move. I'd like a joint letter by July 8. Federal Defender: We could do this in August. And a letter by July 8. [Inner City Press will stay on this case, and press freedom

 The case is US v. Najibullah, 14-cr-401 (Failla)


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