Scary Iran Plot: Making an International Case before Passing the Ham Sandwich Test

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

I want to return to something Manssor Arbabsiar’s attorney, Sabrina Shroff, said the other day. “If he is indicted, he will plead not guilty.”

I’ve suggested Shroff may have reason to believe Arbabsiar will get a plea deal before this ever goes to the grand jury. Which would mean no one would ever challenge the government on the many holes in this case [oh hey! that’s me at]: the claimed lack of taped conversations, the explanation why Arbabsiar cooperated, some holes in the government’s money trail (at least as it appears in the complaint), the remarkable coinkydink Arbabsiar just happened to ask a DEA informant to help him kidnap the Saudi Ambassador, and some perhaps incorrect interpretations of existing tape transcripts.

It would be very convenient for the government if this never went to trial.

But think, for a moment, about the government’s actions in this affair. It rolled out a splashy press conference. Joe Biden has declared no options off the table; Susan Rice is “unit[ing] world opinion” against Iran. And if that doesn’t work, Hillary Clinton will make personal calls followed by onsite teams to persuade allies that this whole plot isn’t a bunch of bupkis.

We have rolled out a giant campaign to use this plot to do … something … with Iran.

But it has yet to pass the ham sandwich test.

Our government has had eleven business days now to subject its amended case to the scrutiny of a grand jury, it had two and a half months to subject its original case to the scrutiny of a grand jury, and it hasn’t yet bothered to do so. We’re sharing our case with the rest of the world before we’re subjecting it to the most basic level of oversight enshrined in our Constitution. Instead of using the legal process laid out in our founding document, we’ve gotten the signature of a Magistrate Judge and run off with it to the rest of the world. And while I have no doubt of the competence of Magistrate Judge Michael Dolinger, the judge who signed the complaint in this case, that’s simply not the way our judicial system is supposed to work. Average citizens are supposed to review the work of the government when it makes legal cases, not just Magistrates.

All of which ought to raise real questions why our government has decided to share these details with the rest of the world, but bypassed the step where they’re supposed to share them with its own citizens.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

49 replies
  1. allan says:

    Well, EW, what would you do if your poll numbers were in the low 40’s?
    Besides, the troops will be home by Christmas.

    Now, `if the intelligence and facts were being fixed around the policy’
    to takedown BoA and Citi, that’s something many of us could get behind.

  2. GKJames says:

    But isn’t that a tactic we’ve seen for the last ten years? Go public with allegations and, when pressed, duck behind the skirts of, We can’t tell you that; it’s classified. Which is why the government spends ALL of its energy preventing the legitimate working of the judicial machinery, not prosecuting cases. DOJ is now just another marketing channel of the US foreign policy/national security apparatus. It simply is there to give a veneer of legitimacy to things — we’re a nation of laws, not men, after all — in the same fashion that legal memos among Executive Branch lawyers rationalized torture. All meaningless, of course, but by the time that the Judiciary has a chance to weigh in, the bombs will have been dropped. That’s what the White House, enabled by DOJ, is counting on. That and the fact that, by the time serious questions get asked, the public will no longer be able to recall what fuss was about.

  3. nomolos says:

    @GKJames: I am awaiting the news from Israel that they have captured/killed Iranian terrorists, determined to kill civilians, entering Israel through Palestine.

    We can thus rid ourselves of the threat of Palestinian statehood and can support the Israeli bomb attacks on Iran.

  4. What Constitution says:

    What? Our government is conducting activities in a manner perhaps inconsistent with the U.S. Constitution?

    Oh. But then again, and sincerely: thanks for noticing — it’s important to mention again and again and not glibly to accept it.

  5. Mary says:

    I haven’t read the Complaint, but since it is being filed in NYC, I’m guessing it only has federal charges – is that right? If so, how have they gotten away with filing the Complaint with no Grand Jury Indictment?

    I don’t do litigation, much less fed crim, but back in olden times the way I learned it is that for a fed felony, a prosecutor needed an indictment to file the Complaint (unlike lots of State practice). Are there defendants in the Complaint other than Arbabsiar that ARE indicted? Did anyone ask Arbabsiar’s attorney if he waived right to GJ indictment?

    Seems awfully odd to me, but my experience is nil and my “booklearning” was long ago and maybe I’m not remembering correctly anyway.

  6. Mary says:

    ot but related on the “holes” front:

    orionATL in a prior thread links to info on Arbabsiar’s home being foreclosed upon in 2010, while Arbusto in another thread says Juan Cole mentions that Arbabsiar has 2,000,000 in Iran and that DOJ says this whole thing was well funded.


  7. eCAHNomics says:

    @Mary: Oh well, if CIA ‘consultant’ Juan Cole sez it, it must be true. After all, that Libyan thingie is working out so well for him.

  8. BoxTurtle says:

    This makes me think of my stepson. He could come up with the most amazing stories and interpretions to support his position. Then he couldn’t figure out why his mother and I weren’t buying.

    His mother tried to cut off one of his whoppers once. The look he gave me when when I said “No, let him go on. Ths one is interesting and obviously took some thought to create” was classic.

    Boxturtle (I wonder if he’s contracting with ObamaLLP…)

  9. Mary says:

    I hadn’t seen this Juan Cole post – but it’s kind of interesting

    He lists several things that might point to Arbabsiar being a little off the mental rails or had delusions of grandeur and if not, that he at least had a well recognized short term memory issue, a well known string of failed businesses and a well known alcohol problem. JC highlights that that if nothing else, some of these issues may have at least contributed to Arbabsiar’s suggestibility by the informant (and left unsaid, by others who have since interrogated or handled him).

    Psst – when do we get this as a headline:

    Iraq/Iran Recently Sought to Purchase Yellow Cake/Diplomatic Assassinations From Niger/a Mexican Drug Cartel

  10. emptywheel says:

    @Mary: By well funded, it appears to be maybe $30,000 to Arbabsiar and $100,000 for the plot. That’s not well funded.

    If Arbabsiar has $2 mill in Iran, then I’d say the US definitely got him for drug sales and flipped him to go after his cousin. And if he was already selling drugs, it is not unreasonable for his cousin to ask him to broker an opium deal.

  11. orionATL says:



    did the israelis have a hand in this plot against iran? it’s entirely reasonable to think they might have.

    did the saudis have a hand in this plot against iran? it is entirely reasonable to think they might have.

    both isreael, a nation where religious fanaticism controls government,

    and saudi arabia, a nation where religious fanaticism controls gov’t,

    have a strong dislike and fear of iran,

    a nation of 60 million people where religious fanaticism controls govt.

    iran by right and might, should be, along with egypt, the dominant power in the region.

    oh, and did i mention that the u.s. is a nation where religious fanaticism exercises an inordinate and inappropriate control over national (and state) govt policy.

  12. William Ockham says:

    I don’t think this about starting a war with Iran. It seems to be more about diplomatic leverage. One of the first things we did was to send the Sec. of State to the U.N. to make a lot of noise about the Convention on the Protection and Punishment of Crimes against Internationally Protected Persons. I’m not sure if we just want to make it hard for Shakuri to travel internationally or we want to use this as leverage in the U.N. Security Council for more sanctions.

  13. Jeff Kaye says:

    @Mary: Arbabsiar’s mental status and character profile is a material question in these national security/terrorism cases. The FBI’s Behavioral Analysis Unit examines their pigeons before they deem them ready to fly. Consider the now classic Squillacote case.

    From the transcript of the Dec. 2000 60 Minutes episode that covered this case:

    WALLACE: (Voiceover) So the FBI listened as [Theresa] Squillacote unburdened herself to her psychiatrist, and they came up with a plan to catch her in an act of espionage.

    Mr. ROBBINS: And they sat in a room with all of these tapes, and this group of men and women sat and devised the perfect undercover operation, tailored to this woman’s psychiatric difficulties.

    WALLACE: What you’ve been saying is what I read, effectively, in the FBI’s behavioral assessment of her.

    Dr. GENOVSKI: It–it was remarkably accurate. I mean, here, they had data that no clinical or forensic psychiatrist ever has.

    This is not a government that you would ever want to trust.

    Btw, congrats, Marcy, on The Atlantic article. Superb work.

  14. orionATL says:

    i believe it was mad dog the other day who was focused on the money.

    good point.

    where did it come from, other than iran. our-bob, we are told by the govt, “caused” the money to be sent to the u.s. (to an fbi/dea bank account).

  15. eCAHNomics says:

    @William Ockham: Has nothing to do with “diplomacy.” Here’ Flynt Leverett, one of my idols, who has not yet developed feet of clay. Wikileak state dept docs show that all the U.S. is doing is checking off boxes on the “diplomacy” front on the leadup to military action, so that USG can claim (drum roll for one of the many familiar themes) that it “has done everything possible to avoid war but the Iranian govt just hasn’t cooperated.”

  16. William Ockham says:

    @eCAHNomics: I don’t buy it. War with Iran would be stupid. Lots of things I don’t like about Obama’s administration but they haven’t really shown the propensity to do truly stupid things.

  17. Jeff Kaye says:

    @emptywheel: It’s not as if the U.S. isn’t interested in the selling of drugs. Increasingly, it’s become clear that they only want their networks and clients to have that franchise. The others are pursued. We see this now in Mexico. We saw this with Noriega in Panama, with the Contras in Nicaragua, U.S. taking sides with KMT-backed groups in the “Golden Triangle”, etc.

    Robert Parry, in a current article revisiting the Letelier assassination in D.C., in the wake of this supposed D.C. assassination plot, note that Pinochet’s son was protected in his cocaine smuggling to the U.S.

    Other potential avenues for understanding Pinochet’s covert role in supporting anticommunist strategies in the Reagan-Bush era also opened in 2006, as former DINA chief Contreras turned on his old boss.

    In a court document filed in early July 2006, Contreras implicated Pinochet and one of his sons in a scheme to manufacture and smuggle cocaine to Europe and the United States, explaining one source of Pinochet’s $28 million fortune.

    Contreras alleged that the cocaine was processed with Pinochet’s approval at an Army chemical plant south of Santiago during the 1980s and that Pinochet’s son Marco Antonio arranged the shipments of the processed cocaine. [NYT, July 11, 2006]

    Drug smuggling is intimately tied to teh spook world, especially as a source of funds, money laundering, and guns, not to mention intelligence/informants.

    I’d say if this were about the drugs, then it was about protecting U.S.-controlled drug smuggling into and out of Iran, which is associated with their intel ops.

  18. William Ockham says:

    @Jeff Kaye: [Caveat: I’m not a doctor, don’t even play one on TV] Arbabsiar’s symptoms sound more like a really bad case of ADHD or possibly a bipolar disorder.

  19. eCAHNomics says:

    @William Ockham: Oh, and one thing I would point out from the McGovern interview (link at 8), is that now that Petreaus is head of CIA, McGovern finds out from his contacts there, that Petreaus is fixing the intel around the war. No one has ever accused Petreaus of being smart. And last major push toward “military action” was stopped by forget-the-general’s name, and he was summarily dismissed, and there’s no one in the military who will take that kind of stand again.

  20. eCAHNomics says:

    @Jeff Kaye: Good one. I hadn’t thought of that connection.

    I remember a year or two ago on FDL book salon, there was an author who scoffed at the notion that U.S. used “illegal drugs” to fund its undercover ops. Can’t remember author’s rationale, nor even who it might have been. But I exited the book salon thread at that point.

  21. emptywheel says:

    @Jeff Kaye: Well, and don’t forget the govt presumably had all the SIGINT they wanted on this guy from well before he met Narc. They said clearly in 2002 they were going to do FISA wiretaps to gather evidence of crime from people they wanted to recruit, He’d be a perfect candidate.

  22. brendanx says:

    That’s the second time today I’ve seen “bupkis”. It’s Yiddish for “beans”, and should be spelled with the Yiddish “-es”, “bobkes” or “bubkes”.

  23. emptywheel says:

    @Jeff Kaye: And, as bmaz and I have been discussing backstage, two top Zetas members just got rounded up. Any $$ that Narc was one of them, now to have his docket sealed and be sent off to some resort where no one will ever get to him to ask what really went on with this op?

  24. emptywheel says:

    @William Ockham: I think both you and eCAHN could be right. If this is a US op, it means it is a US-Israeli or US-Saudi op. We don’t want to go to war. Both the Israelis and, to a different degree, the Saudis want to send us into war.

    I’ve been told that my skepticism and that of the actual experts in this field makes it more likely there’ll be war (yeah, I don’t get it either, but just go with me on this).

    But you’ve got the Obama Administration WAY ahead of itself on this front, believing it is using the op as a way to up the ante. But are they really accomplishing it?

    It’s sort of how the Iranian-tied Chalabi tricked us into the war w/Iraq (yeah, Bush’s folks wanted to be tricked). I think the same might be going on now.

  25. Jeff Kaye says:

    @William Ockham: Unlike the FBI BHU, I don’t attempt to make diagnoses from a distance, I’m only suggesting that one possibly was done.

    @eCAHNnomics: As regards the drug trafficking-intelligence ops link, there are by now many books and articles on this. An old standby classic, and one that initially made his reputation, is Alfred McCoy’s The Politics of Heroin: CIA Complicity in the Global Drug Trade. The other classic is, of course, Gary Webb’s Dark Alliance: The CIA, the Contras, and the Crack Cocaine Explosion.

    Another more recent history is Douglas Valentine’s The Strength of the Wolf: The Secret History of America’s War on Drugs.

    Berkeley historian Peter Dale Scott has also written a tremendous amount on this.

    Really, when we hear about drugs these days, in this kind of context, we should have as a leading hypothesis that some kind of dirty business between drugs and intelligence networks or operations is going on. The opium deal in Arbabsiar’s case is a red flag that this is more than it might seem (among the other anomalies Marcy is pointing out).

  26. Jeff Kaye says:

    @emptywheel: Yeah. This case didn’t fall from the skies. From that 60 Min. interview, vis-a-vis FISA:

    [MIKE] WALLACE: There have been thousands of cases in the 22 years since the FISA court was established, yet no judge has ever allowed a defense attorney to see the basis for granting a wire tap or a search warrant.

    That’s very interesting re the Zetas arrests. Of course, we know from the F&F debacle that the Zetas were most likely the cartel that was on the outs. Celebrations in the Sinaloa HQ. Maybe they’ll shoot off into the air a bunch of ATF guns…

  27. eCAHNomics says:

    @emptywheel: Yes. I thought it was frigging insane for U.S. to invade Iraq, and in fact, that’s exactly how it turned out. Everything was worse than the wildest anti-war imaginations thought in advance.

    I remember hyperventilating about it in a dinner with an acquaintance shortly before the invasion. He looked at me calmly and said: Well, get used to it, it’s going to happen.

    He was right.

    I’m still ambiguous in my own mind about whether a military action (like bombing, instead of outright invasion, which is unlikely) will or won’t happen. Just trying to take in evidence, which more & more, esp given the proven track record of the people who have the say, is looking likely.

  28. rugger9 says:

    @William Ockham:
    Two reasons, actually. One is to deflect questions away from Fast and Furious, a well deserved DOJ/ATF black eye that Obama’s WH owns. The other is to create a war with Iran which is very ill-advised in my view, since we are already stretched beyond sustainable capacity in personnel and material in the wars we already have. I doubt we have the minesweeping capability in the Gulf to prevent closure of the Straits of Hormuz by mines which are much more sophisticated now.

    The reason they don’t go to the grand jury is because it might fail the laugh test.

  29. GKJames says:

    @nomolos: True, though more likely is an allegation that the offender — Palestinian, Lebanese, Jordanian, what have you — was financed or trained or inspired by Iran. Of course, this assumes that Israel even still bothers with a rationale for an attack on Iran. Only Washington remains wedded to appearances, to the perpetuation of the myth that the US is still a law-based state, a republic as the term’s traditionally been understood.

  30. Mary says:

    @emptywheel: There was something kind of odd in one of the articles I looked at that was going over some prior issues with the law and mentioned, without a date, something about a charge (maybe controlled substance?) in TX where the county had some odd response, along the lines of it being a “mistake” and not really a prior charge.

    I think, like going into Iraq, you aren’t going to find “The One” reason all this is being sold. Different people have different interests. The FBI and Holder need a distraction from Fast & Furious. Obama needs (his advisors and he think) to look more like a Bush tough guy for his polling, not only has there been a distraction from fast & furious, but also the US assassinations of US citizens dropped off the pages (and Brennan is trying to sell this op as Obama earning his Weebelo Law and Order badge) and no one is talking all that much about the US cave on Iraq – deciding it can’t win the “let us stay with immunity for crimes and war crimes” pitch. So for the Iran hawks, whether you are going to rattle sabers at Iran or actually try to pull something off, it’s more effectively done when you aren’t in process of leaving Iraq with your tail between you legs. As a matter of fact – nothing to unify segments of Iraq and Iran than seeing the SOFA die and troops leave. And while that is happening, the Saudis are propping up Yemen and the US is brokering an immunity deal there for the guy who gave them the thumbs up to carry out assassinations in Yemen and no one is looking too closely at that deal either, or asking the US if the immunity is a feature in part to sterilize US operations in Yemen.

    What is really funny is watching DiFi, who couldn’t live without Kappes at CIA, and who never got a clue on there being no WMDs in Iraq or torture or disappearances and who hasn’t asked many public questions on US citizen assassinations or “collateral damage” deaths and who (imo) never saw a soldier she wasn’t willing to sacrifice for a “war-like use of military force” that might generate a profit for her spouse’s industry – is out there as the oh so serious face, as the scintillating intellect of unquestioned principles, to tell us all to shape up and quit questioning Our Fearless Leader.

    BTW – looking at some of the info on Arbabsiar’s Iranian assets, it seems that the term “net worth” is sometimes used for the 2 mill instead – having a 2 mill net worth, with illiquid assets, is vastly differnt than having 2 mill, so I need to amend on that.

  31. emptywheel says:

    @Mary: Do you have some links on his assets? I’m still busy weeding the complaint. I must have 3 more posts before I can move onto what’s out there.

  32. Mary says:

    @emptywheel: About to leave, but here’s what I can get quickly
    “Arbabsiar had $100,000 wired from a third country to what he thought was the Mexican drug gangster’s account. The money did not come directly from Iran. Even if it originated there, there is no reason to think it was government funds. Arbabsiar was himself worth $2 million in Iran; for all we know, as he got lost in his fantasy land, he began being willing to spend his Kermanshah inheritance on the crazy scheme.”

    If true, the $/worth are linked to an inheritance, but several of the stories I saw link back to this Juan Cole statement, which isn’t well supported with a link. Otherwise the source that I have seen that doesn’t go back to Cole (and is likely where Cole’s info is coming from) is the WaPo story:
    “Arbabsiar is originally from the city of Kermanshah, near the Iranian border with Iraq. He continued to have substantial property holdings in Kermanshah, which Hosseini said were worth about $2 million and which provided Arbabsiar with a steady income. ”

    Which is also coming from a source who might not have good first and info- just may be reporting something he was told.

  33. rosalind says:

    (mom’s publishing in the Atlantic?! OK folks, we’re gonna have to be extra vigilant: at the first sign of chardonnay sipping or cocktail weenie consumption, we stage an intervention)

    (seriously, congrats ew. and the Atlantic articles can be like Cliff Notes for our security state minders now, handy for clipping & forwarding to their bosses – “Here, THIS is what’s she’s been writing about”)

  34. orionATL says:

    i do not believe president obama would take this country to war againsr iran.

    it makes no political sense, no strategic sense, definitely no military sense. it might help the economy, though that seems questionable.

    these comments come from one who has been a persistent and extremely harsh critic of the prez.

    i just don’t read his personality as one who would take such an irresponsible action.

    i’ve frequently called him “amoral” with respect to his internal (american) politic actions and policies, but i do believe he had for himself the goal of being a competent, “good” president – as he sees matters.

    the worst that could come out of this would be support for an israeli strike on iranian nuclear, but israel has big priblems of its own making, e.g., turkish defection, egyptian “revolution” and only has a few free passes for attacking arabs left, before the u.s., europe, and the world in general get completely feed up with israeli militarism.

  35. rugger9 says:

    I think it depends on how much he’s trapped in Beltway groupthink. You see it in his continuing attempts to revive the Catfood Commission to fix the nonexistent problem. AIPAC is very influential, and the Jewish vote is courted by all sides, for influence as well as ballots, and AIPAC really wants this war since THEY aren’t going to be fighting it.

  36. rkilowatt says:

    @emptywheel: V.P.Nixon setup the BayOfPigs op, “knowing” he would be elected in 1960 and the op would happen with him as pres. He lost the election and his plans mightily frustrated. I got from a darn good source that JFK truly was trapped because the op was too far progressed to stop [he was even “let-in” on it in the run-up to the election…rather suckered].

    S/g similar here. This seems at least a prep to establish the option to go to war quickly, perhaps after the election regardless who becomes next pres. Any newbie Pres’ decisionability would be overwhelmed by an immediate “crisis” [where his only sources of Natl Sec info stampede his wits, a la Johnson/GulfOfTonkin, JFK/Cuba, Bush2/9-11, etc.].

  37. earlofhuntingdon says:

    Once upon a time making a case to the grand jury was the start of a prosecution. Now, the government seems to want to avoid it completely. Is it not time for Harvard to rethink its award of a law degree to a man who so clearly and cleverly thinks so little of the law?

  38. earlofhuntingdon says:

    @Jeff Kaye: Yes, thanks, a dramatically underreported feature of our national and national “security” policy. We run drugs and assist major drug smugglers in laundering the funds flow as well as the profits. A lot of top banks are almost certainly implicated in that, in New York and the City of London, not to mention quite a few lawyers and accountants. It’s not a perspective that gets much press when it comes to an analysis of our “war on drugs”. Much more vital to tell fundamentalists about the untold millions spent forcing Californians and citizens of 18 other states from smoking their legally medically prescribed marijuana.

  39. P J Evans says:

    That’s going over so very well, too. I think I’d rather vote for Mitt: at least I’d know what kind of president I’d be getting before the election. Mr Alleged Constitutional Lawyer is looking more and more like an expert mostly on bait-and-switch.

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