More bad news for attorney Lynne Stewart today. The Second Circuit polled its members and there weren't enough votes for en banc review of the appeals court decision vacating her 28 month sentence because it was too light. (Views on her conviction here.)

The opinions were issued as the circuit announced it was declining to rehear en banc a November ruling by a three-judge circuit panel that was itself sharply divided over the leniency shown Stewart by Koeltl.

On Nov. 17, a majority of Judges Robert Sack and Guido Calabresi faulted Koeltl for failing to make a finding on whether Stewart committed perjury at her trial. In vacating the "strikingly low" sentence, the majority remanded the case and directed Stewart be sent to prison immediately.

Two judges issued a dissenting opinion saying they would have granted en banc review. But not because they thought she shouldn't be sentenced more severely. The opinions are here.

Attorney General Eric Holder at a press conference after Nabijullah Zazi's guilty plea today praised the civilian courts as venues for terror trials.

In this case, as it has been in so many other ones, the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with our intelligence community and in concert with our military. We will continue to use it to protect the American people from terrorism.

Now, as I've stated on other occasions, the criminal justice system also contains powerful incentives to induce pleas that yield long sentences, and that gain intelligence that can be used in the fight, in the war against al Qaeda. We will use all available tools whenever possible against suspected terrorists.

Holder also decried the political motives of those in opposition: [More...]

Najibullah Zazi pleaded guilty today to three counts: conspiring to use weapons of mass destruction against persons and property in the U.S., conspiracy to commit murder in a foreign country and providing material support to a terrorist organization (Al Qaeda.) CBS has the transcript of today's hearing. Zazi said he went to Afghanistan in 2008 to join the Taliban to fight the U.S. military. While in Pakistan, he was recruited by al Qaeda to launch an attack in the U.S.

In entering his plea, the immigrant, Najibullah Zazi, admitted that he came to New York last year near the anniversary of the Sept. 11 attacks to kill himself and others on the subway using a homemade bomb — what he said was a “martyrdom operation” that he was just days away from executing until he realized he was under government surveillance.

The plea agreement is sealed. The DOJ press release describing the plot is here. Two of the counts to which he plead carry a maximum life sentence.

Zazi admitted that he brought TATP [Triacetone Triperoxide] explosives to New York on Sept. 10, 2009, as part of plan to attack the New York subway system.

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Mohammed Zazi, father of Najibullah Zazi, was put back on bail and electronic home monitoring today. He'll be returning home to Denver.

As part of a deal reached in federal court in Brooklyn, Mohammed Wali Zazi must post $50,000 bond signed by his wife and daughter and secured by $20,000 cash. He also will be subject to electronic monitoring when he returns to his home in suburban Denver, possibly as early as Friday.

Zazi was on bail in Denver where he was charged with making false statements to the FBI, when he was arrested due to a charge being filed in the Eastern District of New York charging him with conspiracy to obstruct justice.

He was transferred to New York while in custody of the Marshals and at his first appearance, ordered detained. But as I noted here, the Judge agreed to re-evaluate once his lawyer had time to prepare a proper bond package.

Was it really necessary for the EDNY to request him detained in the first place and make him spend 16 days in custody? I don't think so. Bond is not supposed to be withheld as a form of punishment. But at least it came out right in the end.

Mohammed Zazi, the father of Najibullah Zazi, pleaded not guilty to a charge he conspired to obstruct the grand jury investigation into his son's alleged terror-related activities. According to the Indictment, the object of the conspiracy was to destroy or conceal items such as glasses and chemicals to impair their availability to the grand jury.

Mr. Zazi was ordered held without bond today, but the Judge said his lawyers could reopen the matter and submit a bond application and package either to the Magistrate Judge or the District Court Judge. His lawyer said she had not prepared a bond package, probably because she had just been appointed. The Judge did not detain Mr. Zazi as a danger to the community, only as a flight risk, since he hadn't presented sufficient sureties to assure his future appearance. (Order here, Minutes of hearing here.) [More...]

Denmark has information on David Coleman Headley, aka Daood Gilani, the American born man with dual Pakistani-U.S. citizenship. accused in Chicago of plotting both the Mumbai attacks in 2008 and the planned attack on a Danish newspaper.

Denmark won't provide information to a country that is seeking to execute the defendant. The charges against Headley include death-penalty eligible offenses, although the U.S. has not filed a notice of its intent to seek the death penalty. [More...]

Since Headley is cooperating with the U.S., it's unlikely the U.S. will seek the death penalty against him.

They ought to announce that now, so that they can get whatever evidence Denmark has to offer.

The 9th Circuit Court of Appeals has vacated the 22 year sentence of Ahmed Ressam, an Algerian who convicted and sentenced in 2005 of planning to bomb LAX airport on the millenium, as being too lenient because he didn't follow through with, and recanted, some of his cooperation.

Shorter version (because this is a very long post): The appeals court substituted its own view of what's a fair sentence for a terrorist for that of the trial judge, and then spends pages trying to say the trial court erred, even though the Government didn't even make that allegation.

Basically, the appeals court, being unhappy that Ressam, who is at Supermax, will only be 53 when released and still dangerous, orders him resentenced and removes the trial judge from the case. The 72 page opinion is here. [More...]

This should be no surprise. Umar Farouk Abdulmutallab is continuing to cooperate and provide information on the failed Christmas Day airline bomb plot. His lawyer is facilitating the negotiations. This is what often happens in criminal cases when a probable life sentence is on the table. Or, in the case of accused Mumbai co-conspirator David Coleman Headley, a death sentence.

All those Miranda fears are for naught. Criminal defendants get lawyers. Lawyers review the evidence. If the case is strong and the evidence likely to be ruled admissible, they consider plea bargains that involve cooperation. It happens daily in courtrooms across America. Terror cases are no different. What throws a wrench into the works is when law enforecment officers fail to abide by the rules and violate a suspect's rights. Then evidence can be thrown out and there's less incentive to make a deal. If they just followed the rules, it would be so much better for everyone.

Acting Deputy Attorney General Gary Grindler today said the Justice Department has not made a decision about holding the trials of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators in New York. He denied New York is out of consideration. He said DOJ remains committed to a trial in a federal criminal court.

"We haven't made a final decision and it's not off the table," Grindler said during a briefing Monday. Grindler said U.S. Attorney General Eric Holder was committed to the trial being conducted in federal court rather than before a military commission, as several lawmakers have argued.

"Our federal courts have a long history of safely and securely handling international terrorism cases and we are committed to bringing Khalid Sheik Mohammed and the other alleged Sept. 11 conspirators to justice," Grindler said.

That's good news. Obama and Holder need to stick to their promises on this one and bring these cases in federal criminal courts, which are more than capable of safely conducting them.

Mohammed Wali Zazi, father of Najibullah Zazi, has been charged in an Indictment in the Eastern District of New York with conspiracy to obstruct justice. The basis of the charge is an alleged conspiracy in September, 2009 to hide or destroy objects such as liquid chemicals and containers to prevent them from being available to the grand jury or other official proceeding.

Here's the Indictment. The elder Zazi, who has been on bond in Denver while awaiting trial on charges he made false statements to federal agents investigating his son last summer, was expected to appear in federal court in Denver today. The Denver Post reports prosecutors moved to dismiss the Denver case against him today. According to the court docket, the judge has granted the Government's motion. So no more Denver case, and he's no longer on bond. The New York Times says Zazi has been taken into custody and will have a removal hearing in Denver later today.

It's also being reported that Zazi's uncle, Naqib Jaji, was recently charged in the case. [More...]

Why bother with a trial? Just call out the firing squad. Here's Obama Press secretary Robert Gibbs today:

"Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker," White House spokesman Robert Gibbs told John King on CNN's "State of the Union" Sunday morning. "He's likely to be executed for the heinous crimes he committed," he added.

Former SDNY AUSA Cynthia Kouril at Firedoglake weighs in on this one. (Extra props for mentioning defense counsel.) [More...]

Here's the transcript of White House Adviser David Axelrod this morning on Meet the Press:

DAVID GREGORY: First the trial of Khalid Shaikh Mohammed, the alleged mastermind behind 9/11. Has the administration reversed its stance and decided not to transfer him to New York for trial?

DAVID AXLEROD: We've made no decisions on that David, I've seen the reports. We've no made decisions on that yet. Look here's the situation, the attorney general and the defense department worked out protocols about how these cases should be handled. Under those protocols, the attorney general decided to bring Khalid Shaikh Mohammed back to New York to stand trial for his crime, for the murder of 3000 innocent people. And he wanted to do it near the site of the crime itself. He wanted to do what the Bush administration did over and over and over again, and try these people - try these murderers in article three court, or these uh .. and that's what he decided to do.

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