Zazi's Father Indicted in Colorado

A preliminary hearing was scheduled tomorrow for Mohammed Zazi, father of Najibullah Zazi. The Grand Jury returned an Indictment against him today, which means there won't be a prelim. Fed. R. Crim. P. 5.1(a)(2) provides that a defendant=s right to a preliminary hearing does not apply in a case where the defendant is charged by indictment.

The Indictment charges Zazi with one count of making a false statement to the FBI on September 16, 2009:

...defendant ZAZI denied that he spoke with anyone by telephone regarding whether Najibullah Zazi was in any trouble, when, in fact, on or about September 11, 2009, defendant ZAZI did speak by telephone with a person regarding whether Najibullah Zazi was in any trouble.


Earlier this week the Government responded to the defense motion to produce FISA information by stating it would not seek to introduce FISA material at the preliminary hearing. (Pleading available on PACER.) Rather, it would rely on "the unclassified material will include intercepted telephone calls derived from lawfully-authorized electronic surveillance."

The Government also stated that even if were to seek to introduce FISA information, it wouldn't turn it over to the defense, but to the Court, ex parte:

More specifically,Title 18, United States Code, Section 1806(f), provides that the government may proceed in camera and ex parte upon the filing of a declaration under oath by the Attorney General asserting that
disclosure of FISA information would harm the national security of the United States. The government fully intends to address any motion to suppress or any other order to disclose FISA information under the provisions of FISA.

As to just how serious the Government is about keeping FISA evidence secret:

As such, if in fact the Court is requiring the government to disclose the full extent of the use of FISA in this case, information which is classified, the government respectfully requests the Court stay proceedings pending an appeal of this order to the District Court.

The Indictment charges Zazi with only one false statement. In the Complaint (pdf), he was charged with two false statements. The second, which is no longer charged, was a statement on Sept. 18 that Zazi denied knowing "Individual B", identified in other papers as the cooperating Queens Iman, Ahmad Wais Afzali.

Zazi faces a maximum penalty of 8 years on the false statement charge. Normally, making a false statement carried 5 years, but if it involves a matter related to international or domestic terrorism, 8 years is authorized.

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