| For 2008
Kidnapping of Journo
Najibullah Cited 3rd
Geneva Convention now
Asks 2d Argument
By Matthew
Russell Lee, Patreon
SDNY COURTHOUSE,
Aug 12 – 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.
On July 10, Judge
Failla endorsed that the
hearing will take place on
August 7 at 10 am.
On July 11,
Federal Defenders asked to
delay the trial from October
28 to January 6, 2025.
On July 12, Judge
Failla granted it: " Given the
outstanding matters left to
resolve, the Court GRANTS
defense's request. The trial
date in this matter shall be
ADJOURNED to January 6, 2025."
On August 12,
after the oral argument on
combatant immunity, the US
Attorney's Office wrote in
that "the defense as requested
[a second] order argument,"
August 22 or 23.
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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