I've noted how the Muhtorov case was heating up to become nationally prominent and would get a lot more attention now that anti-NSA agitators can use it as an emblem of their struggle.
Not surprisingly, none other than Jameel Jaffer, the ACLU litigator about whom I've written critically in the past, is taking up the cudgel on this case to bang on the US government for using the secret FISA court and "warrantless surveillance" in prosecuting's Muhtorov's case.
In the motion filed in federal court in Denver, Jamshid Muhtorov also requested that prosecutors disclose more about how the surveillance law was used in his case. Muhtorov denies the terror charges he faces.
"We've learned over the last few months that the NSA has implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions," Jameel Jaffer, the ACLU's deputy legal director, said in a statement Wednesday. The ACLU called the filing the first of its kind.
I began writing about Jamshid Muhtorov, an Uzbek refugee who was active in movements in his homeland, soon after he was arrested and summed up everything we knew here, and wrote about it again when the NSA angle began to be used. Along the way, I've had to refute persistent smears of me by the notorious Joshua Foust claiming falsely that I deliberately tried to get this man kept in jail.
First, I have to point out, regardless of the premises the ACLU will bring to this case about "unconstitutional" actions, the program of meta-data collection with secret FISA courts which the NSA ran is and was legal. Whatever Snowden's claims, whatever this or that panel or commission claims, they are lawful and remain so and were at the time of Muhtorov's arrest. Jameel did not yet prove this program unconstitutional; indeed, his lawsuit in Manhattan Court was found without merit by Judge William Pauley and the constitutionality of the NSA's program was upheld.
This will go all the way to the Supreme Court, as another suit on the same issue led to a different decision from Judge Leon.
Maybe through the enormous NGO and media pressure that only the ACLU and EFF and company can muster for cases like this serving their interests, they will manage to get this case thrown out of court and get Muhtorov's release.
But that doesn't change the legitimacy of the program as it functioned -- that when the NSA picked up a domestic source contacting a foreign source known to be associated with a terrorist group, the Islamic Jihad Union, they had grounds under the law to examine and probe Muhtorov's phone calls and lawfully arrested him when they suspected he was providing material aid to jihadists.
The case isn't proven yet, and the "unconstitutionality" issue may wind up getting it thrown out, or, closer examination of the conversations and his behaviour may turn out not to merit sentencing and he will be declared not guilty. The trial hasn't begun yet.
I'll be particularly interested to see the conversation -- both its original and translation -- where Muhtorov says "I'll see you in heaven" to his daughter -- prompting an interpretation that he was prepared to die in jihad. As I've said in the past, I wonder if the word was "na nebe" or "na nebesakh" or "s neba" in Russian or the Uzbek equivalent, which would mean "I will see you in the sky" or "I will see you from the sky" -- something every parent tells their child as they are flying away somewhere - that they will look down and see them from the sky in their airplane as they pass over.
Obviously there is a lot more that the case hinges on than that one statement, and there seem grounds to make the charges of material aid because he had been in telephone contact with this jihadist group, and was bringing cash and phones and a GPS on his trip. Muhtorov had followed a checkered course of first becoming active on his sister's case, where he believed her charge of complicity in murder of taxi cab drivers by local mafias was unjust; then moving on to become involved in various local human rights groups and distributing Human Rights Watch reports critical of the Uzbek government's human rights violations; then joining a more radical group seeking to overthrow the government; culminating in his flight to neighbouring Kyrgystan, and ultimately his re-settlement in the US -- where he became more religious and extremist in his views and is now charged with helping a terrorist group in Turkey related to another terrorist group on the list of US foreign terrorist organizations that has attacked our troops in Afghanistan and other targets in Europe and Uzbekistan.
I think the ability of the NSA to discover people who are maintaining ties with known terrorist groups abroad by collecting metadata at home is a good one, and one that should be maintained, and the bulk collection metadata program should not be discontinued. The world is very interconnected now by mobile phones and the Internet and this simply has to be watched and the suspects followed when there is probable cause.
It might be that political forces like the ACLU and EFF and various Congress people manage to get this overturned and declared "unconstitutional" and I accept that. We'll see. But that doesn't mean that I will think it is right or advisable.
I also reject Edward Snowden's claim -- completely tendentious and manipulative -- that there is "no" success with this program and no cases where terrorism has been stopped.
First, we don't know that because not everything about the successful "hits" with this collection programs has either been leaked by Snowden or declassified or shown up in a court case. Some cases are still in the investigation and pre-trial stage -- Muhtorov's case, those of other Uzbek exiles both related to him and not related, and I suspect other cases we haven't heard about (because they are from secret FISA courts). And it might be tomorrow or next month that the very hit that the NSA makes with this program will be one that saves a city from something like 9/11 -- then everyone will be glad that the NSA dredged millions of phone header data to get such a "hit."
Even if Muhtorov's case is thrown out, that doesn't mean this program isn't doing the right thing and isn't making arrests on valid grounds.
Secondly, Snowden, like all hackers, follows a literalist, culture-jamming approach to these issues to try to put over his version of reality -- it's all part of the social hack in which he and his comrades are always engaging in to win. We can't know, for example, that this program helps deter terrorism -- it might well do that, and for that reason alone is worth retaining. After all, the purpose of law-enforcement -- one that tendentious geeks eager to exonerate themselves from computer crimes never accept -- isn't merely to literally prosecute on solid evidence, but also to deter crime by making a credible threat of prosecution. That is a legitimate purpose of law enforcement, too.
Now Foust is at it again, reiterating the smear of me, even as he lifts my blogs where I'm the one who found the sources, found the WikiLeaks cable (two years ago!) and wrote about it, analyzed the case -- none of which he did at the time all of us were discussing this.
Foust's purloining of blogs is notorious, as we saw constantly in the Snowden case -- he constantly swipes people's insights and findings and claims them as his own, being careful not to look like he is "plagiarizing" with actual copying of text.
In re-telling the story whose elements I discovered, Foust distorts them -- and introduces new distortions:
o He implies Muhtorov fled the Andijan massacre. He didn't. He was no where near it. He was not a victim in these tragic events. His own public record does not claim that as his story; he was elsewhere then. His "well-founded fear of persecution" stemmed from his activism -- itself somewhat dubious -- not from having been at the site of the massacre or related to it.
o He implies that Muhtorov was on his way back to Uzbekistan (via Turkey), where his sister was in jail on what he believed were false charges. I can't believe Muhtorov, whatever his shortcomings might be, would be stupid or reckless enough to attempt to return to Uzbekistan. Everyone knows that any politically active person who returns winds up getting followed, arrested and then -- if they are lucky -- expelled. Having gained political asylum and refugee status in the US, he would stand out with authorities and of course they would track him. It just doesn't make sense that he would have returned to Uzbekistan.
o Foust cites David Walther, who lived in Uzbekistan when Muhtorov was there and who posted at Registan, as evidence that the authorities in Jizzakh, the town where Muhtorov lived, were more likely to charge activists with Islamism than financial improprieties. But Uzbek authorities everywhere use any and all methods to trump up cases against their critics -- sometimes common crimes like assault or robbery; sometimes embezzlement or financial mismanagement; sometimes extremism associated with Islamism. There isn't enough evidence to suggest that authorities in this or that town "always" did it one way and even if there is a pattern, isn't by itself proof of anything. The reality is, Vassila Inoyatova did at first help Muhtorov and involve him in her human rights group, but then came to accuse him of financial mismanagement -- a fact that she mentioned in a conversation with the US Embassy staff -- which led to it winding up in a WikiLeaks cable -- one I first wrote about here.
Yet another example of a source of an activist not redacted by the lovely Assange and team, eh? And Foust joins in further bashing of Inoyatova here by implying -- through selective quotation of Muhtorov -- that the real problem with her wasn't her legitimate scrutiny of finances in the branch led by Muhtorov, but Muhtorov's criticism of her as not being willing to be activist enough against the government. Sigh. This is Uzbekistan. Inoyatova has had a very tough time keeping her group open, fending off constant inspections, raids, fake libel lawsuits, etc. and naturally she tried to keep the books straight to remove this as an avenue of harassment by authorities.
o Foust softens the description of the farmer's group that Muhtorov joined. He said it advocated for "regime change" -- a vague term which can mean many things. What they advocated for was overthrowing Karimov and that was on the record.
o Foust invokes Muhtorov's distributing of the Human Rights Watch reports as somehow exonerating. If anything, this is one of the elements of his story I find opportunistic. I believe he was doing this to try both to gain cover from HRW's reputation and also to set up his asylum story. Why? Because this is an extremely common phenomenon in this region as anyone who has worked on asylum cases knows. HRW is not an activist organization that has mass membership or encourages leaftleting and pamphlet distribution. That's not how it operates. To be sure, it has reports translated into local languages. But that is to notify the authorities of its concerns, and also to work with other like-minded human rights groups in advocacy -- a more specialized activity than activist pamphleteering. HRW did not mandate or encourage Muhtorov to distribute their reports.
o Yes, Uzbek authorities use all kinds of trumped-up charges on activists -- Islamism, embezzlement, and in Muhtorov's last arrest, sexual harassment. To be sure, he tells this same story differently and that opens up legitimate questioning about it. And even more, we have to wonder how he was able to get smuggled out of Uzbekistan so easily. This is not an easy thing for any activist to do once the authorities have them in their clutches. So questions have to be asked about this.
o Foust cites the picture he claims was "scrounged up" by uznews.net and other emigre news sites but it is his picture. And those news sources didn't merely say that his beard was a sign of Islamism; they said that that the bruises on his forehead from repeated banging of his forehead on the ground in prostrate prayer was a sign of very devout Islamic practice. Foust has repeatedly left out that detail each time he writes about it.
o Foust cites the tell-tale use of the word "wedding" in conversations Muhtorov had with a website supporting terrorists -- this is believed to be a code word used by Al Qaeda. But he never points out some real family wedding that Muhtorov could have been doing to -- and he used the word repeatedly over many months suggesting that it might have been code.
o Despite being told by the current manager of Registan, Noah Tucker, that the Islamic Jihad Union is "pretty hard-core" and that they "want to be the Al Qaeda of Uzbekistan," Foust nonetheless engages in his typical minimizing of this alarming information:
All things being equal, the public evidence in government affidavits against Mukhtarov is pretty thin: it amounts to exchanging emails with the website admin of a terror group, having some coded phone calls, and buying a plane ticket. He is not accused of trying to bomb anything or kill anyone, just “materially supporting” the IJU though providing either himself or by carrying to them a some cash he was reportedly arrested with.
o Again, material support is a serious issue -- other cases that civil libertarians hated got prosecuted despite their invocation of the First Amendment because judges and jurors recognized the line of imminence was crossed. Foust also misrepresents the story once again -- he didn't just buy a ticket, he was arrested at the airport preparing to leave. He didn't just have some cash, he had phones and a GPS; he didn't just exchange emails, he made plans to meet up with them and quit his job and left his family.
o Foust raises a new issue that has appeared in the case, charges that Muhtorov was going to fight in Syria with Al Qaeda:
Yet in the nearly two years Mukhtarov’s arrest, his plight had gone largely unnoticed by the public until last month, when the government gave official notice it was going to use NSA-collected information to prosecute Mukhtarov. In doing so, they levied a new accusation to journalists, claiming he was going to travel to fight for al Qaeda in Syria — something the IJU, as best as anybody can determine, has never done (they fight exclusively in eastern Afghanistan and northwest Pakistan).
I agree that this seems like a "fashionable" addition, as the Uzbek-related terrorist groups, while turning up in Afghanistan, have not seemed to have turned up in Syria. That doesn't mean the situation stays static and they don't cross over into fighting in Syria. We'll see what comes out at trial. So far, Foust quotes Muhtorov's lawyer as saying that the indictment in fact hasn't been expanded to include the Syria charge. (She also said he was never charged with going to Afghanistan. But that's not the issue with Afghanistan; the issue there is that the IJU is related to the IMU, the same terrorist group that has attacked soldiers in Afghanistan.)
o Foust implies falsely that I have "spent years" attacking all sorts of journalists and academics. Nonsense. I engage in legitimate criticism of public figures whose public writings merit criticism. He implies there are scores of such people, what he means is just himself, Sarah Kendzior, at that time an academic, Katy Pearce, her colleague who remains in academic, and Nathan Hamm, the Regist web masters.
o Foust, Kendzior and Hamm have all left Registan and turned it over to other people. All of them have left their jobs. As it is frequently claimed falsely by LibertyLynx that I "ruined their careers," let me reiterate that this is utterly false. They themselves do not make this claim, which would be absurd in any event, given that it would mean that a minor blogger who polemicized with their much more highly trafficked website was somehow capable of influencing their careers. Each of them made career moves on their own, in part because the entire field of Central Asian studies is shrinking and becoming de-funded as our troops being withdrawn from Afghanistan.
It's a new game on the Internet to claim that if someone criticizes you on their blog, why, they are "stalking" you or "harassing" you. Ridiculous. I'm engaging in First Amendment protected speech about critical matters of public policy.
o Foust implies that I adopted a contrary position on Muhtorov merely as part of some longer "stalking" or "harassment" campaign against him and his web site. Again, stuff and nonsense. I began my blog to write freely about Eurasia, to criticize the regimes of Central Asia, US policy regarding these countries. Yes, that includes criticism of Registan's writers, the gaggle of Peace Corps workers suffering from clientism with their host countries, shadowy defense contractors, academics soft on the regimes -- and the hordes of trolls, regime tools, and out right intelligence agents from the Central Asian regimes and our own country that they attracted with their "open source active measure," as I came to see Registan (i.e. their site was free and available for multiple agendas).
o Foust implies that I have deliberately somehow contributed to putting this man in jail (!) as part of some diabolical operation:
Worse still, it seems the prosecution had relied on random blogposts to try to cast doubt on whether Mukhtarov was really a human rights activist. In describing Mukhtarov as too violent to release, it appears the prosecution tried to say he had faked his experience as a human rights worker in Uzbekistan:
A prosecutor also asserts that Muhtorov may have misrepresented himself a human-rights activist and that he may have received refugee status on fake grounds…
Holloway writes that some online articles say Muhtorov was an “opportunist who was dismissed from the Ezgulik Human Rights Society because he supported violent extremism.”
Another, Holloway wrote, “claims the defendant acted as an informant for Uzbek intelligence and received refugee status on fake grounds.”
Those articles come from Catherine Fitzpatrick, who is active in online circles and has a history of personally attacking those she disagrees with. She has spent, without exaggeration, years trying to personally defame a number of scholars, journalists, and activists who do not share her political beliefs, including this writer, and took to her blog to then try to defame Mukhtarov because people she disliked had expressed skepticism of his case (that full story is here).
The prosecutor obviously had plenty of other regions to authorize the extension of Muhtorov's detention than my blog. To suggest otherwise is to fly in the face of the realities of the indictment and the case as it has progressed.
And again, as I've patiently explained repeatedly, I published *translations of other people's articles with those claims*. That is legitimate activity. Those claims vary, as I indicated, from a respected human rights activist to a refugee official in Kyrgyzstan who might be less credible. I discussed these knowledgeably as a person who has written about the Eurasian region for years and evaluated them. That is legitimate activity. The prosecutor cited my blog in his statements -- and he's welcome to do that, just as the lawyer is welcome to cite whatever they want to site in making their case.
This is America. The case will come to court. Each side will have ample opportunity to make their case, and the judge and jury will decide. Meanwhile, the public, the media, and bloggers have the right to discuss their hypotheses about this case. It's completely preposterous -- and sinister -- to claim that a blogger translating and discussing news articles about the case is somehow engaged in some illicit or unethical or even actionable activity.
Far from being some contorted contrivance -- Foust is projecting too much on his own methods -- my taking up critical discussion of this case is done on its own merits. I have long been a critic of the school of thought prevalent in Washington, DC think-tanks and the State Department that minimizes the terrorist threat, and implies this is a hyped-up construct created by conservatives and "the Jewish Lobby". I reject that idea. I think the terrorist threat is real, that Islamism is a threat to civil society anywhere, and that documenting it and opposing it is not equivalent to hatred of Muslims or hype. This is the same "anti-anti" issue we saw with communism historically and now see with the Snowden case.
I've also long been a critic of the extremists among the emigre and domestic human rights movements as well, and not limited to Muhtorov's case.
So ultimately, I have to say that in reviewing this material again something jumped out at me and the tumblers clicked.
I've never been able to understand why Foust was so zealous about insisting on this person's innocence and claiming he was a victim of an over-aggressive US justice system that was prosecuting "thought crime". The grounds for arrest seemed legitimate and very far from any "thought crime." To be sure, he could be doing this merely as an ardent proponent of the International Relations Realist school, to score points with the influential members of this school in Washington in particular.
But I do wonder if more is driving this. And when I contemplate and discuss possible hidden agendas, that doesn't mean I'm a believer in conspiracies, it just means I think it's appropriate to contemplate and discuss possible hidden agendas.
I noticed in the press releases and in Foust post that the point was made that the US processed claims and brought the victims of Andijan to the US.
Everyone in the community of Central Asia watchers knows that the US was forced out of Uzbekistan when it publicly condemned the massacre -- exactly the right thing to do. We even know from Rumsfeld's memoirs that this was argued about and some advocated trying to keep the presence there for the sake of supplying the troops in Afghanistan.
Some in this community also know that the CIA had assets among the opposition and also helped them escape. That's a good thing -- both as to having assets, as well they should in a terrible place like Uzbekistan -- and as to the humanitarian gesture of getting them out after Andijan. I suspect the CIA or perhaps some more sanitized US government agency is still supporting some of them for humanitarian reasons and also to help them have conferences or web sites -- and that's a good thing, too. Remember, we are dealing with a terrible, murderous regime that tortures large numbers of people, that the US was forced to deal with merely to get food and supplies to troops in Afghanistan next door. But ultimately the US would only be happy to see peaceful democratic change come to this country.
What I can see happening here, however, is this: when one of the emigres they've helped -- either an actual intelligence asset, or perhaps merely one of many in a community of people they helped for humanitarian reasons -- turns out to be charged with terrorism, it taints their operations.
What inevitably happens is that on scores of conservative and Tea Party type of websites -- we've already seen this with the Muhtorov case in Denver -- people start griping and saying "Why are we letting all these Muslims in the country as refugees, they just turn out to be terrorists."
And that's wrong, because the vast majority of refugees from Uzbekistan are deserving of their status and are innocent. The few who have been prosecuted as terrorists, including one who threatened President Obama himself, are a tiny number of exceptions to the rule -- like the Tsarnaevs are the exception to the majority of Chechens given refugee status. There are real reasons of persecution for which these people are rightfully given asylum or refugee status and they have done no wrong.
But the US government knows that they have a public relations problem on their hands, especially if the CIA was involved in helping certain communities of people. Then some among them might be hell-bent in trying to silence the messenger about extremism and even the suspicion of terrorism in the midst. Foust comes from the defense contractors' community and may have been moved to do this sort of discrediting all on his own, or he may be part of an informal operation of some kind. The incredible zeal, aggressiveness, and hate brought to bear here; the financial resources for conferences, travel, web site maintenance, etc. and the sheer determination to keep smearing me force me to ask this question. It actually hadn't occurred to me before.
I've also wondered whether Muhtorov was an asset of the SNB, the Uzbek secret police, and whether they didn't bother to save him once he got in trouble (they're like that). I think we can see from certain strange scandals and incidents over the years in the emigre community that they seed radicalization agents into the community to set up and discredit some people and get them arrested or tar the entire enterprise of opposition to the regime with the brush of Islamist terrorism. The Uzbek regime would love nothing more than to discredit all emigres and all opposition and human rights advocates as extremists. Strangely, the Uzbek press has been silent on Muhtorov.
It's even possible that this SNB asset became known to US intelligence and then they had to get involved in rescuing him out of the justice system and will stop at nothing now to do so (because they once had to make deals with the SNB on things like this). That's a conspiracy bridge too far, but not impossible. Uzbekistan has a cunning and murderous secret police, and our government -- and its intelligence and security branches -- have had to get into bed with this regime for the "higher cause" of supplying troops. Now that we're withdrawing our troops, maybe other operations have to be cleaned up.
Whatever it is that is driving this campaign to discredit me -- that is taking increasingly bizarre forms -- it needs to stop. Surely the US government can thread the needle of blessing the vast majority of Uzbek refugees yet prosecuting any strays that turn out to be rare examples of actual assistance to terrorism. If Jameel succeeds -- and the Denver media taking his side -- and the prosecutor is defeated, then the justice system, such as it is, will have triumphed. That doesn't mean the problem of possible connections to terrorism will have disappeared, and the US will have to go on threading the needle.
Foust claims that Muhtorov's arrest was wrongful:
There is a legitimate and genuine threat from Uzbek terror groups, including both the IJU and IMU. But it is difficult to see how those groups are successfully countered by criminalizing speech and persecuting human rights workers for their associations online.
I don't believe his arrest was wrongful and that it does not involve "criminalizing speech" or "persecuting human rights workers." Muhtorov is not a human rights worker. He was expelled from a reputable human rights group and took up with an extremist group. He did more than just talk -- he bought supplies, collected funds, and set about traveling to meet up with these known terrorists in Turkey. That's not vague or First Amendment protected, and will remain troubling even if the case is dropped because of successful invocation of the NSA issue. It is my right to continue to assert these beliefs sincerely and not be smeared by a person who has worked as a defense contractor and now works for a US government funded assistance organization.