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Evan Kohlmann: Garbage In, Garbage Out

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Trevor Aaronson has an important piece on one of DOJ’s several “terrorism experts,” Evan Kohlmann. He has long been mocked, to no avail, by defense attorneys working terrorism cases for his lack of credentials and his hack theories about “radicalization;” Aaronson replays some of Kohlmann’s most embarrassing moments on the stand. Even in spite of that, judges keep accepting him as an expert witness. But Aaronson describes how Josh Dratel obtained discovery about another role Kohlmann plays with the FBI.

While representing at trial Mustafa Kamel Mustafa, of the Finsbury Park Mosque in London, New York lawyer Joshua Dratel, who has security clearances, was given classified materials about Kohlmann, a witness in the Mustafa prosecution. “It was the integrity of a prosecutor who learned of [the materials] some way,” Dratel said, crediting a single Justice Department employee for providing a rare full disclosure about Kohlmann.

Dratel has reviewed the classified materials in full, but he is prohibited from discussing their contents publicly. “It’s hard to talk about it without talkingabout it,” he said.

However, the judge in the Mustafa case allowed very limited references to the contents of the classified materials during Dratel’s cross-examination of Kohlmann — providing a clue to what the government is hiding about its star terrorism expert.

“You have done more than consulting for the FBI, correct?” Dratel asked Kohlmann.

“Correct,” Kohlmann said from the witness stand.

“You have done more than act as an expert for the government, correct?” Dratel followed.

“That’s correct, yes,” Kohlmann admitted.

That’s as far as the judge would allow.

Dratel asked Kohlmann whether he had told Tarek Mehanna prosecutors (Carmen Ortiz’ office) of his “precise” relationship with the FBI, but the judge prevented Dratel from obtaining a specific answer.

“In that case, in preparing for that case, or at any time during that case, did you inform the prosecutors in that case of your precise relationship with the FBI?” Dratel continued.

“I don’t know what you mean by ‘precise,’ but the prosecutors in that case I had worked with on a previous case, and they were fully aware of the nature of my work with the FBI,” Kohlmann answered.

“No, the precise nature of your relationship with the FBI,” Dratel said, speaking cryptically due to the classified material and the limits the judge had placed on his questions.

“Objection, your Honor,” the prosecutor interrupted.

“Did you inform them?” Dratel asked Kohlmann

Aaronson doesn’t guess, but I would guess that Kohlmann gets paid by the FBI to troll jihadist forums and identify potential sting targets.

A lot of counterterrorism cases include some evidence about online discussions (sometimes in forums, sometimes on more public sites), which gets turned over as an “unsolicited tip” to FBI officers, who then engage, and — on seemingly thin evidence — obtain a FISA warrant, which then leads to further evidence to support the sting. The judge in the case may never learn the details of this unsolicited tip, particularly if she is never asked to review a FISA warrant.

Defense attorneys never learn the details of those unsolicited tips — that’s part of what the whole FISA process hides — but they would be used in the materials to the FISC.

In other words, I’m guessing that Dratel got evidence that Kohlmann is providing the raw material for FBI’s stings, based on his whackjob theory of radicalization (the reference to Mehanna’s case may mean — and this is purely speculation — Kohlmann took part in some of the same kinds of online discussions that were used to incriminate Mehanna.

If I’m right, though, it would confirm what observers — starting with former FBI Agent Mike German — have long talked about: that the government is funding an echo chamber of “experts” who create the approach to terrorism we use, then reinforce it with their purported expertise.

This insight is crucial to understanding the government’s continuing embrace of radicalization theories. Simply put, the government continues to be the primary sponsor of radicalization studies because they justify counterterrorism policies that maximize its policing powers. As Kundnani has written, “[s]cholarship that associates a particular kind of ‘disposition’, be it ‘cultural,’ ‘psychological’…, with terrorist violence enables intelligence gatherers to use that disposition as a proxy for terrorist risk and to structure their surveillance accordingly.”

Treating terrorism as the spread of an ideological infection within a vulnerable community also allows the government to put aside difficult questions about the role U.S. foreign and national security policies play in generating anti-American grievances, which the Defense Department raised in this 2004 report. Studies supporting government radicalization theories rarely mention U.S. military actions in Muslim countries, lethal drone strikes, torture, or theGuantanamo Bay prison as radicalizing influences, though many terrorist reference them in attempting to justify their actions.

The reliance on radicalization theory also provides benefits to those who support the current political, social, and financial status quo, particularly in regard to U.S. foreign policy. The support for these theories comes from a broad array of organizations.

[snip]

Neo-conservativethink-tanks, private terrorism investigators, and cyber vigilantes that typically support the maintenance of interventionist Middle East policies and aggressive counterterrorism measures also stand to benefit from the government’s reliance on radicalization theory. These self-styled experts have the appearance of independent researchers, but often serve as echo-chambers for government theories of extremist organizations and behavior. As a defense attorney explained to The Nation, “[t]hey all work for the government or they work for government-funded agencies or government-contracted projects… [a]nd so when the government calls them, they are ready sources of government-approved information.”

If Kohlmann is one of the “private terrorism investigators” German mentions — and he certainly fits the bill — then he very likely is dumping garbage of whackjob theory picked targets into the system, and then validating the same whackjob theories on the stand.

I don’t know the precise specifics of what Dratel has been alerted to, but it sure does seem like we’re closer to proving that Kohlmann and his ilk are providing Garbage In Garbage Out that drives the war on terror.

Hailing Carmen Ortiz While Ignoring Several Amendments

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Main Justice has a bizarre post suggesting that those who excoriated Carmen Ortiz for her treatment of Aaron Swartz (and Tarek Mehanna and Russ Caswell, though MJ doesn’t name them by name) are now hailing her aggressiveness.

“The criticism lately has been that they’ve overcharged some people and been overly harsh,” Peter Elkann, a Boston defense attorney, said in a recent interview with Reuters. Elkann went on to observe that “no one is going to accuse any prosecutor of making too big a deal out of this case.”

That would be a safe statement, considering that the April 15 bombing killed 3 people and wounded more than 280 others, many of whom lost legs, as it left blood on the street and horrified and infuriated millions of Americans.

Ahem.

Maybe Main Justice doesn’t read this blog, which has twice noted the needless prosecutorial irregularity of Dzhokhar Tsarnaev’s interrogation.

But I would hope that a site covering legal inside baseball has heard of a guy named Erwin Chemerinsky, who seems just as troubled by DOJ’s refusal to comply with Dzhokhar’s reported request for a lawyer as bmaz and I?

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev. He apparently was questioned for hours without being given hisMiranda warnings, and the interrogation continued even after he explicitly requested an attorney. It is disturbing that the Justice Department would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

Don’t get me wrong. I don’t think Carmen Ortiz made the decision to refuse Dzhokhar a lawyer through 16 hours of interrogation alone. I’m quite certain she did that because that’s the policy — generally and specifically — Obama’s DOJ wants to pursue.

But that’s true of her over-aggressive pursuit of the war on drugs, the war on hackers, and the war on Muslims, too, the wars she was fighting when she took down Aaron Swartz and Tarek Mehanna (and tried to take down Russ Caswell). The other abusive decisions she made all reflect the policy choices of the Obama Administration.

But denying someone his Fifth and Sixth Amendment rights is completely consistent with what we’ve seen Carmen Ortiz do in the past. And while Main Justice appears unphased by it, some of the same people who have noted her prosecutorial aggression in the past are noting it continues here.

The Jeremy Scahill Yemen Executive Order

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For the record, I don’t think the Obama Administration would be so brazen as to freeze Jeremy Scahill’s assets because he reported critically on Obama’s Yemen policy. But the Executive Order they’re rolling out today is reportedly written so broadly so as to make something like that possible.

The unusual order, which administration officials said also targets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.

Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again.

[snip]

The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”

It covers those who “have materially assisted, sponsored or provided financial, material or technological support” for the acts described or any person whose property has already been blocked, as well as those who have acted on behalf of such people.

The explanation this anonymous official seems to have given Karen DeYoung is that the order is a way to make sure Ali Abdullah Saleh’s family butts out of affairs in Yemen (which would work, given that he presumably does have significant assets in the US). Using Saleh’s wealth as a way to try to keep him out of Yemeni politics is a nice idea (though the agreement itself could have done more to enforce this).

But Saleh’s not a US citizen. So why explicitly include US citizens in the order?

Moreover, since the language borrows material support language from terrorist sanctions, and since terrorist material support extends to First Amendment protected activities (as Tarek Mehanna knows well), and since Obama has already made sure a journalist remains jailed in Yemen, then what protection is there for people who say that using signature strikes in Yemen is boneheaded, or suggesting that investing all our energies in Saleh’s Vice President doesn’t really constitute a meaningful solution in Yemen?

And to make things worse, the anonymous official tries to tell DeYoung that this sanction is not the first of its kind. It was used twice before: in 2006 in Cote d’Ivoire and in 2009 in Somalia. That is, precisely this kind of sanction has been used twice–and has twice failed to do anything to bring about meaningful stability.

But the single most troubling aspect of this EO is that is guaranteed to be selectively enforced. After all, the Saudis aren’t exactly great friends of “political processes” anywhere, particularly in their backyard, and surely they’re waiting to bomb more Houthis. Yet what are the chances that any Administration would freeze the very significant assets of Saudi citizens in the US–even those operating outside official channels?

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Why Is Tarek Mehanna Held to a Different Standard than the Hutaree Militia?

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Over the last week, there were two must-read pieces arguing that the sentencing of Tarek Mehanna to 17.5 years in prison for conspiring to materially support terrorism threatens free speech.

David Cole–who argued the Humanitarian Law Project v. Holder case in which SCOTUS first permitted speech to be criminalized as material support for terrorism–noted that Mehanna’s actions didn’t even rise to that troubling standard.

But in Mehanna’s case, the government never tried to satisfy that standard. It didn’t show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna’s translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted “material support” to a “terrorist organization.”

The prosecutor relied on a 2010 Supreme Court decision in a case I argued, Holder v. Humanitarian Law Project. In Humanitarian Law Project, a divided Court upheld the “material support” statute as applied to advocacy of peace and human rights, when done in coordination with and to aid a designated “terrorist organization.” (The plaintiffs in the case sought to encourage the Kurdistan Workers Party in Turkey to resolve their disputes with the Turkish government through lawful means, by training them in bringing human rights complaints before the United Nations and helping them in peace overtures to the Turkish government.) The Court ruled that the government could criminalize such advocacy of peaceful nonviolent activity without transgressing the First Amendment, because, it reasoned, any aid to a foreign terrorist organization might ultimately support illegal ends.

The Humanitarian Law Project decision is troubling enough, as I have previously explained. But Mehanna’s case goes still further. The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher, Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda.) It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?

(See also Ben Wittes’ curation of Cole’s ongoing spat about the evidence in this case with Peter Margulies.)

And Andrew March, who testified at the trial, distinguished Mehanna’s advocacy from the ideology al Qaeda pushes.

The prosecution’s strategy, a far cry from Justice Roberts’s statement that “independent advocacy” of a terror group’s ideology, aims or methods is not a crime, produced many ominous ideas. For example, in his opening statement to the jury one prosecutor suggested that “it’s not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.” In other words, viewing perfectly legal material can become a crime with nothing other than a change of heart. When it comes to prosecuting speech as support for terrorism, it’s the thought that counts.

That is all troubling enough, but it gets worse. Not only has the government prosecuted a citizen for “independent advocacy” of a terror group, but it has prosecuted a citizen who actively argued against much of what most Americans mean when they talk about terrorism.

On a Web site that the government made central to the conspiracy charge, Mr. Mehanna angrily contested the common jihadi argument that American civilians are legitimate targets because they democratically endorse their government’s wars and pay taxes that support these wars.

As I read these pieces (and a lot of the other commentary on Mehanna’s sentence, I kept coming back to the recent ruling that threw out all the conspiracy charges against the Hutaree militia on free speech grounds.

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The FBI Wanted a Propagandist to Become an “Informant”

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In a post focusing on the First Amendment problems with Tarek Mehanna’s conviction for serving as an al Qaeda propagandist, Glenn Greenwald posted the speech Mehanna made at sentencing. Most of the attention paid to the speech has focused on the American icons Mehanna used to situate his own extremism, including Superman, Paul Revere, and Malcom X.

I’m far more interested in this bit:

In the name of God the most gracious the most merciful Exactly four years ago this month I was finishing my work shift at a local hospital. As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy ” way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard-and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.

In April 2008, Mehanna alleged, the FBI approached him to become an informant.

That they asked a young Muslim against whom they had collected evidence of False Statements to become an informant is no big surprise. We know the government has actually used FISA to find evidence of criminality they can use to persuade someone to turn informant.

What’s interesting is that they spent over a year (they had abundant evidence of Mehanna’s false statements by February 25, 2007) working on setting up Mehanna to be an informant rather than preparing to arrest him.

What’s interesting is that they made that kind of effort with a propagandist.

There is precedent, of course. We know the FBI used Hal Turner as an “informant” for five years, in an effort to entice right wingers to violence. We know there have been questions raised about Inspire, the AQAP magazine that Samir Khan edited (after having been watched by the NC FBI but then allowed to leave the country, unlike Mehanna).

But if Mehanna is to be believed, the FBI recruited him in 2008. When Mehanna said no, the FBI prosecuted him for First Amendment activities.