DOJ Lies about Its FOIA Lies

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Patrick Leahy just released a letter DOJ sent him and Chuck Grassley regarding DOJ’s effort to formalize their practice of lying in response to some FOIA requests. Now, Leahy claims the government has withdrawn its proposed rule–which I think overstates what DOJ has done.

I commend Attorney General Holder and the Obama administration for promptly withdrawing the Department’s proposed rule on the treatment of requests for sensitive law enforcement records under the Freedom of Information Act.  For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret.  The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government. [my emphasis]

While the letter does say,

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures [I think this refers to DOJ’s promise of transparency, but it’s not entirely clear], and we will not include that provision when the Department issues final regulations.

It also speaks conditionally of making changes to the practice itself.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

In other words, DOJ has only committed to taking the language about exclusions out of the rule, not to changing the practice on exclusions it has followed for 20 years. It’s only going to make a change in the practice if it can find some new practice that works as well.

And there’s reason to doubt DOJ’s overall good faith with this letter. That’s because they claim their approach to exclusions “never involved ‘lying’.”

While the approach has never involved “lying,” as some have suggested, the Department believes that past practice could be made more transparent.

That’s an out and out “lie” (I’m guessing that DOJ thinks those scare quotes make “lie” mean something other than what we think it means). As Judge Cormac Carney laid out in his ruling on this practice, the government “lied” to him about what FBI documents existed on CAIR.

The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

And the letter’s claim that this process “never” involved “lying” is all the more suspect given that DOJ tells a “lie” in this letter. It says,

These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.

But Meese’s memo envisioned judicial review.

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. [my emphasis]

DOJ, by “lying” to Carney (and probably a slew of other judges over the years) evaded any judicial review of its use of exclusions. DOJ was actually going beyond what even corrupt old Ed Meese laid out!

And then, if there were any doubt of DOJ’s bad faith here, there’s this:

As you know, the initial comment period on these regulations closed earlier this year, with no public comment on the provisions in question. As a result, however, of this Administration’s commitment to openness, the Department reopened the comment period on these regulations precisely so that it could receive additional input.

The reason they got no comments in the first period, of course, is that they snuck through the rule just before Carney would make his ruling public.

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

That is, they only opened the second comment period because they got caught pulling a fast one, trying to push through the rule before the risks behind the rule became apparent.

Which is probably what they’re doing here.

Of course they have to change the rule now. That’s because every denial must now be assumed to be a “lie” which can only be exposed by litigating the issue. The rule is going to lead to a lot more FOIA lawsuits.

So in addition to assuming that they’re “lying” in response to FOIA requests, it’s probably safe to assume they’re misleading with their suggestion that because they’re going to take this practice out of their rule, they’re ending the practice.

The Coordinated Leaky Drips In The White House

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As I’ve noted previously, there has been a hue and cry against the critical and untenable use, and abuse, of secrecy by the United States government. There has always been some abuse of the government’s classified evidence for political gain by various administrations operating the Executive Branch, but the antics of the Obama administration have taken the disingenuous ploy to a new art form.

Today, via Politico’s old fawning Washington DC gluehorse, Roger Simon, comes an unadulterated (sometimes x-rated) and stunningly tin eared and arrogant admission of what the Obama White House is all about, straight from the lips of Obama consigliere Bill Daley:

Rahm was famous for calling reporters, do you call reporters? I ask.

“I call; I’m not as aggressive leaking and stroking,” Daley says. “I’m not reflecting on Rahm, but I’m not angling for something else, you know? Rahm is a lot younger [Emmanuel is 51], and he knew he was going to be doing something else in two years or four years or eight years, and I’m in a different stage. I’m not going to become the leaker in chief.”

You’ve got others for that, I say.

“Yeah, and hopefully in some organized leaking fashion,” Daley says, laughing. “I’m all for leaking when it’s organized.”

Oh, ha ha ha, isn’t that just hilarious? Bill Daley, and the White House he runs, are all for leaking, history bears out even the most highly classified government secrets, and doing so in an organized pre-planned fashion, when it serves their little self-centric petty political interests. But god help an honest citizen like Thomas Drake who, after exhausting all other avenues of pursuit within the government, leaks only the bare minimum information necessary to expose giant government waste, fraud and illegality because he feels it his duty as a citizen.

For citizens like Tom Drake, the “most transparent administration in history” will come down on his head like a ton of nuclear bricks even when they embarrass themselves in so doing. But they are more than willing to exploit and leak to self serve their own interests. What is good for the king is not appropriate for the commoner.

In this regard, I wish to amplify point that Glenn Greenwald has previously made about the pernicious affect of this duplicitous use of classified information. Glenn said:

But the problem is much worse than mere execssive secrecy. Anyone who purports concern over the harmful leaking of classified information should look first to the Obama administration, which uses secrecy powers as a manipulative tool to propagandize the citizenry: trumpeting information that makes the leader and his government look good while  suppressing anything with the force of criminal law that does the opposite. Using secrecy powers to propagandize the citizenry this way is infinitely more harmful than any of the leaks the Obama administration has so aggressively prosecuted.

That is exactly right. It is not just that the government keeps unnecessary secrets from the public on information that is critical to their duties and responsibilities as citizens, it is that the self-serving selective leaking creates an intentionally fraudulent paradigm for the citizenry. It is not only manipulative, is fundamentally dishonest and duplicitous.

When the leaking is so selective and self-serving it is not just the people who are deceived, is the press they rely on as a neutral information conduit from which to make their opinions and determinations. The press then becomes little more than a hollow funnel for opportunistic and dishonest spin. We saw the effects of this in the case of Anwar Awlaki’s extrajudicial assassination, and have seen it again in the Scary Iranian Terrorist Murder ruse.

The last bastions against this pernicious practice are the press and courts. Until both start admitting how they are relentlessly gamed and played by the White House, there is little hope for change. And make no mistake, the press ratifies this pernicious conduct by lazily accepting such leaks and reporting without properly noting just how malignant the process is. It is all a joke to Bill Daley and Barack Obama, and the joke is on us.

PS: For a little more on the joy that is White House Chief of Staff Bill Daley, see Digby today. And a fine dissertation of why Daley should be fired on the spot by Joan Walsh in Salon. I would only note that it is not just Rahm and Daley, it is the man who consistently brings this Chicago style heavy handed belligerence to the White House. Mr. Obama’s two Chiefs of Staff do not operate apart from him, they ARE him and his Presidency. The buck for this stops at the top.

DOJ’s “New” FOIA Rule Just Attempt to Formalize Practice They’ve Been Following for Years

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As you no doubt have read, the government wants to issue a rule that says they can lie when people request FOIA information. The language reads,

(1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the FOIA office of that component must confer with the Office of Information Policy (OIP) to obtain approval to apply the exclusion.
(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.

In effect, this rule would allow the government to shield information relating to an ongoing investigation, an informant, or classified information “pertaining to foreign intelligence or counterintelligence, or international terrorism” from FOIA by basically lying about whether such information exists or not. It would permit the government, upon finding years of surveillance of a person, to then tell the person that no such surveillance information exists.

The government says it is issuing this rule, “to reflect developments in the case law.”

Together, the reference to case law and the timing of this rule suggest the government is, in fact, simply trying to pass a rule that formalizes the practice they’ve used for years.

The case law in question almost certainly pertains to Islamic Shura Council v FBI, a FOIA request initially submitted in May 2006. Ultimately, in 2009, Judge Cormac Carney ruled in that case that the government had properly withheld information that would have revealed the substance of the FBI’s investigation of the Muslim organization, though his ruling was just released this spring. When Carney issued that ruling, the fact that the government had been lying to FOIA requesters all along became public.

Here’s a post I wrote when Carney’s ruling became public earlier this year, and here’s a short timeline:

May 15, 2006: CAIR and other SoCal Muslim organizations submit a broadly worded FOIA for information on investigations or infiltration of the organizations

April 27, 2007: The government informs nine of the organizations that no information had been found

May 2007: The government informs CAIR and Hussam Ayloush it has a few pages of documents on each

June 2007: The government releases redacted versions of those documents

September 18, 2007: Organizations sue

March 21, 2008: In support of a motion for summary judgment, FBI’s David Harvey submits a declaration stating the government had done an adequate search, resulting in those few pages

April 20, 2009: Carney issued an order calling for an in camera review

May 1, 2009: Harvey submits a new declaration, stating that it had withheld responsive information from CAIR and Ayloush

May 14, 2009: Carney held an in camera hearing on whether the government can mislead the court

June 23, 2009: Carney issued a sealed ruling finding that for the most part the government had properly withheld the documents, but chewing out the government for lying in the first Harvey declaration; he said he would unseal it unless otherwise directed by the 9th Circuit

July 6, 2009: The 9th Circuit stays the unsealing

November 1, 2010: The case is argued

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

September 29, 2011: DOJ reopens rule for comment

October 19, 2011: Second end of comment period for rule

So look what the timing makes clear: The government knew Carney wanted to reveal that the government lied to him–but also that it routinely lied to FOIA requesters–in June 2009. But they only issued a rule trying to formalize their practice of lying to FOIA requesters in the days before the 9th ruled, 21 months later. Rather conveniently, the timing of the rule meant the comment period would expire before it became public that the government has been going beyond Glomar and instead lying to FOIA requesters.

No wonder the ACLU and others objected.

But that doesn’t change what the facts in this case seem to suggest: that the government has been operating under Meese’s memo for years–certainly at least as far back as 2007 when the government first lied to CAIR and Ayloush to hide the big stash of documents pertaining to them.

Mind you, the ruling upholds the principle that the government can’t lie to judges to hide their lies to FOIA requesters–a principle that (as Carney pointed out) even Meese didn’t propose. Here’s that hippie Meese describing judicial review:

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. In either case, the government will of course urge the court to issue a public decision which does not indicate whether it is or is not an actual exclusion situation. Such a public decision, not unlike an administrative appeal determination of an exclusion-related request for review, should specify only that a full review of the claim was undertaken and that, if an exclusion in fact was employed, it was, and continues to remain, amply justified.

And here’s the hippies on the 9th Circuit (Schroeder, Tallman, and Smith) reaffirming the principle of judicial review in FOIA.

When the government does not provide the court with accurate or complete information, the court’s function in overseeing FOIA actions and monitoring litigation is compromised. The government may withhold relevant information from plaintiffs to protect “the secret nature of the information,” id. at 826, but it must disclose to the court all relevant and responsive information in order for the court to evaluate whether the withholding was appropriate.

[snip]Therefore, if the government believes that submitting a detailed affidavit would compromise the information it is seeking to protect, then it must seek an in camera review. It cannot, however, represent to the district court that it has produced all responsive documents when in fact it has not.
We thus agree with the district court that the FOIA does not permit the government to withhold information from the court. Indeed, engaging in such omissions is antithetical to FOIA’s structure which presumes district court oversight.

And just for good measure, here’s that hippie Carney scolding the government for trying to pull something that even Ed Meese didn’t sanction.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

I actually suspect that the 9th Circuit’s clear reaffirmation of judicial review for FOIA elicited the rule change. After all, even the Obama Administration argued the claim that they could just lie to judges to protect exclusion issues. But if they’re going to get judges to go along with their secret exclusions, folks outside of DOJ will need to know about the practice.

Of course to get there–assuming the rule is enacted–we will have to appeal every single FOIA decision, assuming always that the government is lying.

Which is a great way to run a democracy–to force citizens to always assume the government is lying.

Confirmed: the Government Hid–and Is Still Hiding–Manssor Arbabsiar’s First Docket

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I first raised questions of why the government had charged Manssor Arbabsiar–the Scary Iran Plotter–with an amended complaint almost two weeks ago. As I noted then, the obvious existence of an earlier sealed complaint might suggest the possibility that Arbabsiar was charged with something entirely different than the murder-for-hire charges he got charged with on October 11.

First (and this is what got me looking at the docket in the first place), the complaint is an amended complaint. That says there’s a previous complaint. But that complaint is not in the docket. Not only is it not in the docket, but the docket starts with the arrest on September 29 (notice the docket lists his arrest twice, on both September 29 and October 11), but the numbering starts with the amended complaint (normally, even if there were a sealed original complaint, it would be incorporated within the numbering, such that the docket might start with the amended complaint but start with number 8 or something).

Two things might explain this. First, that there was an earlier unrelated complaint–say on drug charges, but the charges are tied closely enough to this op such that this counts as an amended complaint. Alternately, that Arbabsiar was charged with a bunch of things when he was arrested on September 29, but then, after at least 12 days of cooperation (during which he waived Miranda rights each day), he was charged with something else and the new complaint incorporated Ali Gholam Shakuri’s involvement, based entirely on Arbabsiar’s confession and Shakuri’s coded conversations with Arbabsiar while the latter was in US custody. [emphasis original]

If Arbabsiar were originally charged with something different than he was charged with on October 11–for example, if he were charged with drug charges that might put him away for hard time–it might explain why he waived Miranda rights for 12 days in a row, when he had, on 5 different occasions in his past, hired lawyers to represent him when he got in legal trouble.

Well, this filing not only confirms that an earlier complaint exists–the earlier complaint is dated September 28–but it confirms my suspicion the complaint is in an different docket that is entirely sealed.

On September 28, 2011, Magistrate Judge James C. Francis IV authorized a complaint bearing docket number 11 Mag. 2534 (“Sealed Complaint”), charging the above-listed defendant. The Sealed Complaint is attached hereto as Exhibit A.

On October 11, 2011, Magistrate Judge Michael H. Dolinger authorized an Amended Complaint (11 Mag. 2617) charging the defendant and Gholam Shakuri (“Amended Complaint”). By order of the Honorable Loretta A. Preska, dated October 11, 2011, the Sealed Complaint was ordered to remain sealed. On October 11, 2011, the defendant was presented on only the Amended Complaint.

The Government respectfully requests that the Court enter a limited unsealing order permitting the Government to produce the Sealed Complaint in redacted form to defense counsel as part of the discovery process. The Sealed Complaint would otherwise remain sealed.

First, compare the docket numbers:

First Complaint: 11-mg-2534

Amended Complaint: 11-mg-2617

Criminal Indictment: 11-cr-897

These are three entirely different dockets.

A search for criminal magistrate docket 11-2534 returns nothing. Which means the docket–the entire docket–is and remains sealed.

This increases the likelihood that the first complaint charges entirely different charges–such as opium charges–than the amended complaint does.

Indeed, the language of this letter appears to suggest that only Arbabsiar was charged in the first complaint. Even if this earlier complaint pertained to murder-for-hire charges, this might make sense–as I have pointed out, most of the current charges are conspiracy charges that would involve at least two defendants. But the letter suggests–by stating only that “the defendant was presented on only the Amended Complaint”–that there may be charges unique to Arbabsiar, completely unrelated charges that hang over him still–that weren’t charged because of his 12-day cooperation to implicate Shakuri.

And here’s the kicker. The government isn’t even telling Arbabsiar’s defense counsel all of what was in that first complaint. They are asking that she receive the complaint in redacted form.

So not only are they hiding the original basis of his arrest from us–US citizens and the world community, to whom the government claimed this is an international incident. But they’re hiding parts of this earlier complaint even from the public defender tasked to actually represent this guy.

The Informant Racket and the Scary Iran Plot

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Jeralyn Merritt has been focusing closely on the DEA’s use of informants of late. And as part of a discussion of how much the DEA informant in the Viktor Bout case, Carlos Sagastume, has made off his lucrative informant career ($8 million and counting, with much of that coming in the Monzer al Kassar case), she wondered whether Sagastume might be Narc, the informant in the Scary Iran Plot. [Update: Jeralyn now thinks Narc can’t be Sagastume.]

A prior “catch” of informant Sagastume was Monzer al Kassar, (Indictment here.)who was convicted and sentenced to 30 years following a sting very much like the one used on Bout. Al-Kassar’s conviction was upheld last month, and the Second Circuit ruled lies by the DEA to to those it is trying to trap in order to get jurisdiction in the U.S. are okay. The opinion is here. An interesting sidenote: one of the three judges affirming al-Kassar’s conviction was District Court Judge Shira A. Scheindlin, sitting by designation. She is the trial judge in Viktor Bout’s case.

As for why Sagastume has received $8 plus million for his informant work, I suspect it’s likely that he’s getting a percentage of property ordered forfeited. In cases of criminal forfeiture, like al-Kassar and Viktor Bout, the Government must get a conviction on the criminal charge in order to succeed on the forfeiture. So if Bout were to be acquitted, there would be no forfeiture. That gives the informant a personal stake in seeing Bout convicted.

[snip]

One last note on Sagastume and Al Kassar. Al-Kassar sold weapons in a lot of countries over his 30 year career, including Iran. Was Sagastume involved in the recent sting involving the alleged plot to kill the Saudi Ambassador? While Sagastume is not the only informant the DEA used in al-Kassar, Bout and similar arms cases, he speaks Spanish, is experienced in the world of Mexican drug smuggling and could play the role of a Zeta as easily as a FARC operative, and could probably convincingly claim to have Iranian connections. It seems likely to me there must be a limited number of DEA informants with the savvy to bridge such disparate groups as the Zetas and Iranian secret forces. It’s not like the DEA just calls Central Casting.

Mind you, Jeralyn is just speculating, but I find it interesting speculation for several reasons.

First, because Jeralyn points to the Circuit decision in the al Kasser case. It held that the US government could charge non-Americans in stings conducted entirely outside of the United States so long as the government had demonstrated a clear intent to hurt the US.

In an opinion on Wednesday, the 2nd U.S. Circuit Court of Appeals in New York affirmed the increasingly prevalent government tactic of using sting operations to trap arms and drug traffickers worldwide.

[snip]

Kassar’s attorneys argued on appeal that U.S. prosecutors were not allowed to charge non-U.S. citizens caught in a sting operation abroad. The appeals court conceded that Kassar “never came close to harming any U.S. person or property,” but concluded that was “irrelevant for conspiracy offenses, which often result in no palpable harm.” Instead, the court said the government had clearly established Kassar’s intent to harm the U.S.

The circuit also found the government had not “manufactured” jurisdiction by creating the chance for Kassar to break the law.

“While it is true the DEA agents lied to the defendants, this does not make the nexus (to the U.S.) artificial or invalid.”

Now, this decision is unnecessary to ensure the government could convict Manssor Arbabsiar. He’s an American citizen (though the only overt act he committed in the US was a money transfer). But they’re on shakier ground with Gholam Shakuri. At least given what the government has presented in the complaint, there’s zero evidence that the Quds Force set out to assassinate Adel al-Jubeir in the US. I’ve noted that Narc invented all the most spectacular elements of the plot–including the civilian casualties, the dead Senators, and apparently the WMD. And while you might assume soliciting a North American cartel to carry out the kidnapping (or assassination) of a US-based Ambassador would imply an attack in the US, there is no evidence in the complaint that Arbabsiar’s handlers specifically asked for that. None. But by charging this in NY, you can rely on the al Kasser decision, point to the fictional dead Senators, and worry less about including Shakuri in the sting.

None of that has to do with the possibility that Sagastume was the Narc in this case. But Jeralyn’s comments about Sagastume’s effectively working on spec does. As I noted, there was almost nothing new in the indictment presented on Thursday.

Almost.

Except a forfeiture provision, calling for Arbabsiar and Shakuri to forfeit any property tied to a terrorist attack on the US.

That’s still not a tie to Sagastume, necessarily. And given the money already transferred–just $100,000, as far as we know–that’s chump change for someone like Sagastume, who has already made millions for his narc work. But who knows? Maybe there are big proceeds from the opium deal the government doesn’t want to tell us about.

That still doesn’t say anything interesting about Sagastume.

But the timing might.

I’ve been trying to figure out why the government decided to spring this sting on October 11. After all, it has had the most critical pieces of evidence since August 9. Narc first raised the possibility that Arbabsiar would have to fly to Mexico to guarantee payment on August 28. And yet the sting waddled along, as Shakuri’s urgency increased, but with no resolution. And what dictated the timing after Arbabsiar was arrested on September 29? Why wait until October 11, four days after the last (mentioned) unsuccessful attempt to get Shakuri to send more money, before you announce the charges? And given that the government had had all this evidence for months, why had, according to Preet Bharara, “None of the people that have been mentioned by me and others [who investigated the case] [] gotten much sleep lately”?

If Sagastume were Narc, it might explain the government’s (though not Shakuri’s) urgency. The government announced the charges on October 11. On October 12, Viktor Bout’s trial started. I can see how the Bout trial date would serve as an artificial endpoint to the Scary Iran Plot investigation. And if I’m reading the reports from the trial correctly, Sagastume testified on Tuesday and Wednesday of last week. Then the trial broke for the week, as opposed to on Thursday, which might be more normal. On Thursday, the fairly simple Indictment (one that might take just a few hours to present) came out. And yesterday and today, Sagastume’s back on the witness stand in Bout’s case. In other words, the Scary Iran Plot and the Bout trial coincide in ways that would make it very easy to manage the star Narc’s testimony across both cases, in one tidy trip to the US before he goes off to whatever swank retirement the government has arranged for him.

Again, both Jeralyn and I are speculating, nothing more (though her comments about informants are worthwhile reading and applicable more generally). But it all would fit rather nicely. And if Sagastume stands to make millions–as he has from prior stings–it might add another layer of intrigue to the Scary Iran Plot.

The OTHER Saudi Assassination Plotter Got a Reduced Sentence in July

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This post from Cannonfire reminded me how convenient for our country it is that Moammar Qaddafi was executed rather than captured alive and tried: he will not be able to tell anyone, now that he’s dead, how Ibn Sheikh al-Libi, who under torture provided one of the casus belli for the Iraq war, came to be suicided in a Libyan prison just as Americans started focusing on torture in 2009.

That, plus the death of the Saudi Crown Prince Sultan bin Abdul-Aziz al Saud, made me think of another plot Qaddafi brings to his grave: that he had purportedly arranged to assassinate then Crown Prince now King Abdullah. The evidence to support that plot mostly came from Abdulrahman Alamoudi, a prominent American Muslim who was arrested in 2003 on charges he violated trade sanctions against Libya.

Tell me if this sounds familiar. A naturalized American citizen is arrested upon re-entry to the country and charged with a bunch of crimes. After a period of no bail, he confesses to participation in the assassination plot of a top Saudi.

Court documents said the assassination plot arose from a March 2003 conference at which Libyan leader Moammar Gaddafi and Prince Abdullah had a heated exchange. Angered at how Gaddafi was treated, Libyan officials recruited Alamoudi.

Even after he learned that the target was Abdullah, Alamoudi shuttled money and messages between Libyan officials and the two Saudi dissidents in London, the documents said. Although Gaddafi is not named as a planner, sources familiar with the case have said he appears in the documents as “Libyan government official #5,” who met personally with Alamoudi.

Mind you, though the judge considered the assassination plot in Alamoudi’s sentence, he plead guilty not to murder-for-hire, but to prohibited financial transactions with Libya (the kind of thing JPMC just got its wrist slapped for), unlawful procurement of naturalization, and tax evasion.

Anyway, thinking about the similarities between that case and the Scary Iran Plot led me to consult Alamoudi’s docket (most of which is not available online). What happens to a guy convicted in connection with plotting with a nasty African dictator as we launch the war to finally kill that dictator?

Well, it turns out that at about the time it was clear we’d stick around to ensure Qaddafi died in this kinetic action, a sealed document got filed in Alamoudi’s case. And, on July 20, 2011, Alamoudi got about 30% knocked off his sentence, from 276 months to 197.

Mind you, no one was hiding the fact that Alamoudi would continue to cooperate with authorities while in prison–so it’s no surprise his sentence got lowered. Nor does Alamoudi’s sentence reduction necessarily have anything to do with Alamoudi’s testimony in the assassination plot.

But I do expect, a decade from now, that’s what’s going to happen to Manssor Arbabsiar’s docket.

DOJ Offers No More Detail on Scary Iran Plot in Indictment

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I had this naive hope that DOJ would use the opportunity of an indictment to fill in some of the holes in their case.

Like I said, naive hope.

The indictment appears to be the amended complaint, without the affidavit, with an arrest warrant for Gholam Shakuri.

Scary Iran Plot: FBI Had No Need to Investigate Arbabsiar’s Corpus Christi Past

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So imagine this scenario.

A DEA informant calls up his handler out of the blue and says,

Omigod! Some crazy Iranian just approached me to arrange some kind of hit on behalf of this Iranian terror organization. He asked about explosives (I bragged about my C4 expertise.) He found me through my aunt in Corpus Christi. She says she knows him from when he used to be a used car salesman.

The DEA calls the FBI. What’s one of the first things the FBI would do?

Maybe look him up in the FBI’s own files (they find he doesn’t have a federal record). And just after that, you’d think they’d start investigating him in Corpus Christi, where Narc knew him to have connections. Maybe call the cops there and see if they knew this crazy Iranian. Which, since Arbabsiar has a pretty consistent record of petty arrests and lawsuits, they do.

Which is why it’s sort of odd that the FBI never contacted the Corpus Christi cops–they first talked to them the day after Arbabsiar was charged.

Arbabsiar had previous arrests in Nueces County during nearly 20 years living in the area.

That meant arrest records and personal details were on file in the county’s warehouse. But no one from any federal agency ever asked for the folder, Kaelin said.

“From an intelligence-gathering standpoint, even the tiniest bits of information could have a connection to something bigger,” he said. “They never asked to see it.”

In fact, FBI agents never contacted the sheriff’s office or the police department about their investigation into Arbabsiar.

That’s all the more weird given that some of the criminal files on Arbabsiar were on dead tree files in a warehouse from back in the day when the FBI itself didn’t really use computers (you know, like last year).

Now, my scenario sounds weird, almost impossible, particularly in the age of information sharing between local cops and national counterterrorism investigators.  Even if they were worried about keeping Narc’s identity secret–which I’m sure is particularly critical so close to the border in South Texas–you’d think they’d at least go and make discreet investigations about Arbabsiar (particularly given the claims that, by the end of the investigation, FBI officers seemed to be going out of their way to make their presence known.

Neighbors, however, said it had been years since Arbabsiar lived in the stucco house he once shared with his wife on a suburban cul-de-sac. They said it appeared that as many as 10 people were living in the house, and lately there had been some signs of suspicious activity: When residents looked for available Wi-Fi networks, networks with names like “FBI Van 1” would pop up.l

Unless …

Unless they didn’t need to do that background research on Arbabsiar when Narc purportedly came to them out of the blue to tell them about this crazy Iranian seeking an assassin purportedly out of the blue.

The FBI’s seeming disinterest in learning about Arbabsiar from the law enforcement officials who ostensibly knew him best suggests they already knew about him when he approached Narc.

(As a number of media outlets have reported, the Grand Jury has indicted the plotters, a mere nine days after the Administration started making an international incident about this. I’ll update or do a post once the indictment is in the docket.)

Why Did the Scary Iran Plotter Speak Directly from a Contested Treasury Department Script?

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As I noted on Friday, Manssor Arbabsiar’s cousin, Abdul Reza Shahlai, who purportedly directed him to arrange a plot with Los Zetas, was sanctioned by the Treasury Department in 2008, in part for involvement in an attack in Karbala.

Iran-based Abdul Reza Shahlai–a deputy commander in the IRGC–Qods Force–threatens the peace and stability of Iraq by planning Jaysh al-Mahdi (JAM) Special Groups attacks against Coalition Forces in Iraq.  Shahlai has also provided material and logistical support to Shia extremist groups–to include JAM Special Groups–that conduct attacks against U.S. and Coalition Forces.  In one instance, Shahlai planned the January 20, 2007 attack by JAM Special Groups against U.S. soldiers stationed at the Provincial Joint Coordination Center in Karbala, Iraq.  Five U.S. soldiers were killed and three were wounded during the attack.

But as Gareth Porter pointed out yesterday, there are reasons to doubt the US has proof of Shahlai’s role in that attack. Porter’s original report on this from 2007 describes Michael Gordon trying, unsuccessfully, to get Brigidier General Kevin Bergner to provide real evidence of Iranian involvement in the plot. And he describes David Petraeus specifically denying the claim.

Another indication that the command had no evidence of Iranian involvement in the attack was the statements of the top commander in Iraq, Gen. David Petraeus, on the issue in an April 26 press briefing. Petraeus had referred to a 22-page memorandum captured with the Shiite prisoners that he said “detailed the planning, preparation, approval process and conduct of the operation that resulted in five of our soldiers being killed in Karbala.” But he did not claim that either the document or the interrogation of Khazali had suggested any Iranian or Hezbollah participation in, much less direction of the planning of the Karbala assault.

Later in that briefing, a reporter asked whether Petraeus was “saying that there was evidence of Iranian involvement in that [Karbala] operation?” Petraeus responded, “No. No. No. That—first of all, that was the operation that you mentioned, and we do not have a direct link to Iranian involvement in that particular case.”

At the time Petraeus made this statement, Khazali, the chief of the militia group that had carried out the attack, had been in U.S. custody for more than a month. Despite nearly five weeks of intensive interrogation of Khazali, Petraeus’s comments would indicate that U.S. officials had not learned anything that implicated Iran or Hezbollah in the planning or execution of the Karbala attack

Porter’s post yesterday describes officers subsequently reiterating that the Iraqis, not the Iranians, launched this plot.

In a news briefing in Baghdad Jul. 2, 2007, Gen. Kevin Bergner confirmed that the attack in Karbala had been authorised by the Iraqi chief of the militia in question, Kais Khazali, not by any Iranian official.

Col. Michael X. Garrett, who had been commander of the U.S. Fourth Brigade combat team in Karbala, confirmed to this writer in December 2008 that the Karbala attack “was definitely an inside job”.

Now, perhaps Treasury had additional evidence by the time it sanctioned Shahlai, perhaps not. But suffice it to say the claim that Shahlai had a role in that plot is at least contested, and there is reason to believe it is outright false.

Which is why I find it so interesting that, among the other things Manssor Arbabsiar repeats to Narc about Shahlai, is that he had ties to a bombing in Iraq.

ARBABSIAR further explained that his cousin was “wanted in America,” had been “on the CNN,” and was a “big general in [the] army.” ARBABSIAR further explained that there were a number of parts to the army of Iran and that his cousin “work[s] in outside, in other countries for the Iranian government[.]” ARBABSIAR further explained that his cousin did not wear a uniform or carry a gun, and had taken certain unspecified actions related to a bombing in Iraq. Compare supra ¶ 17. [my emphasis]

That reference back to paragraph 17? It’s a reference to the complaint’s background on the Quds Force. Note the content carefully:

[T]he IGRC is composed of a number of branches, one of which is the Qods Force. The Qods Force conducts sensitive covert operations abroad, including terrorist attacks, assassinations, and kidnappings, and provides weapons and training to Iran’s terrorist and militant allies. Among many other things, the Qods Force is believed to sponsor attacks against Coalition Forces in Iraq, and in October 2007, the United States Treasury Department designated the Qods Force, pursuant to Executive Order 13224, for providing material support to the Taliban and other terrorist organizations.

Note, the Treasury designation the FBI Agent refers to is not the 2008 designation naming Shahlai directly in connection to the Karbala plot, but instead an earlier one first designating Quds Force for material support to the Taliban. Read more →

Telling Stories about What Iran Is Capable Of

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As I’ve mused on twitter and in comment threads, I’ve started wondering who paid more for Scary Iran Plot, the US Government or (allegedly) Quds Force?

After all, it’s clear that Narc offered up the idea to attack Adel al-Jubeir at a restaurant with explosives rather than, say, shooting him or poisoning him. Narc invented the fictional 150 civilians who would be at the restaurant. Narc invented the fictional Senators who might be killed in the blast. Narc said he could, “blow him up or shoot him,” and Arbabsiar said, “how is possible for you.” When Narc warned about those fictional casualties, Arbabsiar said, “if you can do it outside, do it” (though he clearly okayed collateral damage if necessary). Thus, even assuming there is nothing else funny about the plot, it’s clear that Narc authored the most spectacular details of it, the ones that resulted in a terrorism and WMD charges rather than just murder-for-hire, and quite possibly the ones that made this an alleged act of war against the US, rather than just an attack on Saudi Arabia.

Even assuming the Iranians dreamt up this plot, the US wrote the screenplay for it.

So how much did each side pay to create this plot?

I’d put the Quds force tab at $175,000. They allegedly advanced $100,000 for some kind of plot–but refused to send any more money. And on July 17, Arbabsiar describes asking Shahlai for “another $15.” Given that that happened in month 6 of a 9 month plot, I think it fair to estimate he was paid three installments of $15,000, or $45,000. Add in $30,000 for Shukari’s time, and you’ve got $175,000. (It’s not clear whether Arbabsiar paid for his international flights out of his advance, but I’ll also leave out the much greater travel costs on the American side. Further, all this assumes we haven’t paid in the past or agreed to pay Arbabsiar in the future for his part in the plot.)

The government, for its part, paid Narc to work Arbabsiar for at least four months. They paid Craig Monteilh $11,800 a month to run around safe mosques to try to entrap aspirational terrorists in LA; I presume they’d pay more for an actual cartel member to risk his life as an informant in Mexico. But let’s assume they paid the same rate they paid Monteilh, which would work out to $47,200, remarkably, about what Quds Force allegedly seems to have paid Arbabsiar. In addition, we’ve got at least the time of Robert Woloszyn, the FBI Agent who wrote the complaint. He doesn’t seem to have been Narc’s handler, so you’ve got Narc’s handler working long hours. In the press conference rolling out this case, Preet Bharara said two prosecutors, their two supervisors, the Deputy US Attorney, and the Acting Criminal head in NY “have [not] gotten much sleep lately.” In addition to SDNY, there was involvement from the Houston US Attorney and FBI offices, Houston DEA (which may be where Narc’s handler worked), NY’s JTTF. And all those intelligence personnel who played a critical role that we can’t discuss (except in anonymous leaks to journalists). Now clearly, many of these people were probably not personally involved in the crafting of a story that took alleged Quds Force intent to attack Saudi Arabia and turned it into the spectacular attack on a fictional restaurant in DC. But it’s probably safe to say that the US Government paid as much to craft this plot as the Quds Force allegedly did, even before you account for the money spent surveilling Arbabsiar, Shahlai, and Shakuri before the plot as well as the money spent stopping it.

With that in mind, check out the language State Department Spokesperson Victoria Nuland uses to describe how other countries are receiving the State Department’s efforts to persuade them to treat this plot as real.

Other countries are buying the basic idea of the plot, Nuland said, despite fairly widespread skepticism among Iran watchers about the likelihood the Quds Force would put such a clumsy plan into place.

“Countries may find it quite a story, but they’re not surprised that Iran would be capable of something like this,” she said.

It seems that our allies may be just as skeptical as many American observers that the Quds Force planned the precise plot that–it is clear–Narc’s handlers wrote the screenplay for. But, Nuland says, they buy the basic idea of it–“they’re not surprised that Iran would be capable of something like this.”

We had to invent this entire screenplay–perhaps investing as much money or more as Quds Force allegedly did–to get our allies to agree that the Quds Force might engage in terrorism? Didn’t they already know that?

(I sort of wonder whether our representatives are also asking our allies whether they think we’re capable of assassinating nuclear scientists?)

Therein lies the problem with the American practice of using stings to craft the scariest terror story possible. If the sheer improbability of it makes the story less credible, if all it does is reinforce a widely held belief, then doesn’t the theatricality of it work against the government?

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