King-George-gate: The case of the "Portland Seven"
by eriposte
[This is part of my ongoing coverage on King-George-gate: Myths v. Realities. Note that all emphasis in quoted extracts from articles or testimony is mine.]
In previous posts I discussed how the two cases initially offered by the Bush administration as justifications for the illegal NSA spying program actually provided no such justification in reality, if you were to review the history of those cases. In both cases - Iyman Faris (Brooklyn bridge plot) and Mohammed Junaid Babar (U.K. fertilizer bomb plot) - I used published news reports to show that Bush's illegal spying program was not required to uncover the individuals or their plots. Rather, the existing evidence indicated that the FBI's legal actions were adequate to locate, monitor and convict them. Recently, a New York Times article added alleged *new* justifications for "the program" since some officials within the Bush administration themselves dismissed claims that the Faris and Babar cases were helped by the illegal spying program. For instance, this article said:
In addition, government officials said the N.S.A. eavesdropping program might have assisted in the investigations of people with suspected Qaeda ties in Portland and Minneapolis. In the Minneapolis case, charges of supporting terrorism were filed in 2004 against Mohammed Abdullah Warsame, a Canadian citizen. Six people in the Portland case were convicted of crimes that included money laundering and conspiracy to wage war against the United States.
In this (long!) post I discuss the "Portland Seven" case (they later became the "Portland Six" because one of them died overseas). You will notice how weak the statement (above) is - "the N.S.A. eavesdropping program might have assisted...". Clearly, this means that the officials are not really sure that the warrantless spying program did actually assist the case. But, let's take a closer look.
In this post I specifically addressing the following questions:
1. Was warrantless spying required to discover the "Portland Seven"?
2. Did warrantless spying on the "Portland Seven" lead to the prevention of any imminent terrorist plots?
3. Would it have been impractical or impossible to find the "Portland Seven" and prevent them from doing any harm to the U.S. without a warrantless wiretap?
Based on the news reports to date, the answers to each of the above questions is NO (see my caveat in Appendix 2). Let's see why (below the fold).
1. Was warrantless spying required to discover the "Portland Seven"?
The answer appears to be NO.
For the reasons summarized below, the reasonable inference is that the "Portland Seven" case did not involve the use of illegal, warrantless wiretaps to indict and convict the perpetrators:
- James Comey's testimony to the Senate Judiciary Committee in Fall 2004 claiming that it was legal wiretapping using the PATRIOT Act that helped this case (this testimony came well after he became aware of the illegal spying program that he objected to)
- The fact that even senior Bush administration officials did not trot out this case initially as a justification of their illegal spying program
- The fact that even the law enforcement and/or intelligence officials who mentioned this case as a justification recently did so only in a very qualified manner suggesting they were unsure whether it really was ("...the N.S.A. eavesdropping program might have assisted in the investigations of people with suspected Qaeda ties in Portland...")
- The documented history of this case in prior news reports indicates the use of a planted FBI informant to obtain a wiretapping warrant that was used to elicit the information used in the arrest and conviction of the group
In the rest of this section, I discuss the above points in greater detail.
(a) Let's start with the testimony (presumably under oath?) of then-Deputy Attorney General James Comey to the U.S. Senate Judiciary Committee on September 22, 2004, defending the PATRIOT Act:
The removal of the “wall” separating intelligence and law enforcement personnel also played a crucial role in the Department’s successful dismantling of a Portland, Oregon terror cell, known as the “Portland Seven.” Had it not been for the effective new tools of the PATRIOT Act, this case may have been known as the “Portland One.” Here’s what happened: Members of this terror cell had attempted to travel to Afghanistan in 2001 and 2002 to defend the Taliban and al Qaeda by taking up arms against coalition forces. Utilizing sections 218 and 504 of the PATRIOT Act, however, the FBI was able to conduct FISA surveillance of one of the suspects. FBI agents learned that he had received orders from an international terrorist group to attack Jewish targets. Agents were able to share this information with prosecutors and keep them apprised of their surveillance activities. This gave prosecutors the confidence not to prematurely arrest the suspect while they continued to gather evidence on the other members in the terrorist cell. Ultimately, prosecutors were able to collect sufficient evidence to charge seven defendants. Six of the defendants were convicted and sentenced to prison terms ranging from three to eighteen years. These terrorists sit in prison cells today, and the PATRIOT Act helped us to put them there.
Some of you may recall that Comey was the guy who appointed Patrick Fitzgerald on the Valerie Plame case. His testimony came after he became aware of the illegal spying program that he objected to. So, here was Comey, Ashcroft's Deputy at that time, touting the use of Sections 218 and 504 of the PATRIOT Act to rope in the "Portland Seven" (actually it's the "Portland Six" as will become clear shortly). The supreme irony here is that both of these sections were actually amendments to the 1978 Foreign Intelligence Surveillance Act (FISA) (see Appendix 1 of this post for details) - the very same law that some Bush administration officials now claim were deliberately violated in this case to put these these people behind bars. So, unless James Comey was lying to the Senate Judiciary Committee (which I find somewhat hard to believe), either Comey was lied to, or this case did not require the use of an illegal, warrantless wiretap. The history of this case (see the series of reports on the case from The Oregonian which I use extensively here) indicates that the latter was likely true.
Comey was not the only one who touted the use of the PATRIOT Act in this case. John Ashcroft did the same. Not only that, the last plea deals announced in this case specifically involved dropping the challenges to the FISA amendments in the PATRIOT Act:
Jeffrey Leon Battle and Patrice Lumumba Ford agreed to plea bargains that will result in both serving 18 years in federal prison.
...
The pleas came the day U.S. District Judge Robert E. Jones was expected to hear a crucial challenge of the expansion of the government's domestic spying powers.
...
Also canceled were the long-anticipated legal arguments about the merits of the Foreign Intelligence Surveillance Act, or FISA, which was amended by the USA Patriot Act shortly after the Sept. 11 terrorist attacks.U.S. Attorney General John Ashcroft, who announced the first arrests in the case on Oct. 4, 2002, by calling it a "defining day" in the war on terrorism, touted the Patriot Act Thursday at a news conference in Washington, D.C., as "one of the most important tools that we have had in our arsenal that has made it possible to keep America safe."
(b) I have briefly mentioned at the top of this post that even senior Bush administration officials did not trot out this case initially as a justification of their illegal spying program. This provides strong evidence for the fact that the program was not required to arrest and convict the "Portland Six".
(c) I have also briefly noted at the top of this post that even the law enforcement and/or intelligence officials who now mention this case as a (possible) justification for "the program", did so only in a very qualified manner suggesting they were unsure whether it really was ("...the N.S.A. eavesdropping program might have assisted in the investigations of people with suspected Qaeda ties in Portland...")
(d) The documented history of this case in prior news reports indicates the use of a planted FBI informant to obtain a FISA wiretap warrant that was used to elicit the information used in the arrest and conviction of the group.
To answer this question, it is worth first reviewing some additional background on the case.
Let's start with this piece in the Oregonian by Noelle Crombie which provides the names of the "Portland Seven" and the fact that one of them actually died in Pakistan before he could be tried:
Federal prosecutors filed a motion Tuesday to dismiss the case against the Habis Abdulla Al Saoub, the remaining defendant in the Portland Seven case, saying authorities have confirmed his death.
Al Saoub, also known as Abu Tarek, was killed Oct. 3, 2003, in Pakistan during a firefight with Pakistani troops.
...
Maher "Mike" Hawash was sentenced to seven years in federal prison on a charge of aiding the Taliban. Ahmed Bilal was sentenced to 10 years, and his brother, Muhammad, received eight years for conspiracy and gun charges. Jeffrey Leon Battle and Patrice Lumumba Ford were sentenced last year to 18 years in prison. October Martinique Lewis, Battle's ex-wife, was sentenced to three years in a work camp.
So who was the first to be roped in? It was Jeffrey Leon Battle, as this article in The Oregonian (by Mark Larabee and Les Zaitz) points out:
In the Portland case, the FBI applied for FISA court orders for telephone wiretaps and a hidden microphone planted in Battle's apartment. Last month, Ashcroft signed a declaration arguing that national security should prevent the defendants from seeing the classified information the FBI used to get approval for the electronic surveillance. That approval was given by the Foreign Intelligence Surveillance Court, a secret court of federal judges who oversee such domestic spying requests.
Defense lawyers had moved to suppress the FISA evidence, saying that using the material without giving them the ability to review and challenge the justification for the wiretaps violated the due-process clause of the U.S. Constitution, among other things.
So, the question we have to answer is whether the information used for the warrant for the Battle wiretap was itself obtained using warrantless spying. The answer appears to be NO:
Less than a month before he was arrested, "Portland Seven" defendant Jeffrey Leon Battle asked an undercover FBI informant if he knew how to make a bomb and said he wanted to arm himself for a possible confrontation with authorities.
The September 2002 comments followed a series of secret "body wire" recordings in which Battle spoke of his consideration and ultimate rejection of committing a terrorist act in the United States, specifically to kill hundreds of Jews at a Portland-area synagogue or Jewish school.
...
After returning to Oregon, Battle spoke with the FBI's informant of a "burning desire" to fight in a jihad and die as a martyr, according to the government's filing.The document also reveals contents of some wiretaps approved by the Foreign Intelligence Surveillance Court, a secret federal court designed to issue wiretaps and search warrants in terrorism and spy cases where national security is at risk.
So, clearly the testimony of an informant was used to get a wiretap warrant against Battle. Who was this informant? This guy:
Khalid Ibrahim Mostafa came to a Portland mosque last spring sharing his prayers, political views and boundless generosity.
The Egyptian-born mechanic offered to sell fellow Muslims guns at discount rates, spoke openly of his sympathies with the Taliban and invited friends over to his Tigard apartment to watch satellite feeds of Al-Jazeera on a big-screen TV.
Now, those he prayed with say they know why.
Mostafa was working undercover for the FBI to gather evidence against six Portlanders who were accused this month of conspiring to join the fight against U.S. troops in Afghanistan, according to law enforcement officials and some of the local Muslims he befriended.
...
It appears that law enforcement officials won Mostafa's cooperation through the traditional means used in many local and federal investigations. Agents suspected the smooth-talking, part-time leather goods salesman was involved in unrelated crimes -- drug possession and illegal weapons purchases. He began cooperating with the government in its terrorism case and was never charged. Mostafa, officials say, understood the benefits of helping the government: He worked previously as a confidential informant for the U.S. Drug Enforcement Administration.
This is important because there is at least one news report by Mark Larabee which suggests that Ashcroft did not want to reveal the information that formed the basis of the original Battle wiretap because it was based on the testimony and cooperation of the enormously shaky FBI informant Mostafa:
Maher "Mike" Hawash is a prosecutor's dream witness.
He admitted Wednesday that he and his buddies traveled to China in the weeks after the 2001 terror attacks with the intention of getting to the Afghan battlefield to kill U.S. soldiers and defend the Taliban.
He also promised to testify against those same friends, putting prosecutors into the inner sanctum of the alleged conspiracy like never before. That's significant for several reasons.
...
Most importantly for federal prosecutors in Portland, Hawash provides definitive criminal intent in a case where before existed only the tape-recorded rumblings of angry radicals. His admission dims speculation by some defense attorneys in the case that those recorded conversations were merely the post-vacation egotistical spoutings of a couple of wannabes looking for a pat on the back.With Hawash's testimony, it will be more difficult for the others to convince a jury that they were traveling in Asia to study the Quran or lend assistance to a war-torn region's orphans and widows.
The 38-year-old Hawash was born in the occupied West Bank, studied in the United States, became a U.S. citizen, married an Oregon woman and, as an Intel prodigy, lived the middle-class ideal of the American dream. That he tried to join forces with the enemy is almost unbelievable.
...
That fact may explain his recent turnaround from suspected rogue warrior to friend of John Ashcroft. Instead of a potential life sentence he faced at trial, under the plea bargain Hawash will do seven to 10 years and have another chance at a life once he's released. Perhaps that's why the deal happened the way it did.But there's a better explanation for its swiftness: Hawash is the witness the government wanted all along. He's the one prosecutors needed to bring this case home. Before him, it was a great circumstantial case any good defense lawyer could have punched a hole through. Even with plane tickets, hotel receipts, sightings in China -- and those tapes. But Hawash was there and can tell the story in detail, step by conspiratorial step.
"If a prosecutor is able to couple a strong circumstantial case with a single insider who is credible, it can be devastating," said Geoffrey Mearns, the former assistant U.S. attorney who prosecuted Oklahoma City bomber Terry Nichols and is now a criminal defense lawyer in Cleveland. "The two combined can make the case unstoppable. It's suffocating."
Of course, defense attorneys will attack him and may say he's lying to save his skin. But as a government witness -- well-educated, no criminal background, front-to-back insider -- Hawash on the stand will be as well-read and credible as his book on multimedia computer graphics.
He carries little of the sagging baggage the government's other chief witness, Khalid Ibrahim Mostafa, will have to tote into court. Mostafa, under post-9/11 investigation by federal agents for illegal gun deals, was caught with guns and drugs and quickly became a sneaky undercover informant to get out from under his criminal trouble. His background might have kept a few FBI agents and prosecutors up the night before cross-examination day if he was to be their star witness. The defense will rip his credibility to shreds, but now his background is less relevant.
Mostafa's body wire recorded two suspects, Jeffrey Leon Battle and Patrice Lumumba Ford, plotting away, the government suggests. Hawash will be asked to corroborate the intentions on those recordings. If he's telling the truth, he was involved in the planning. He says he traveled through Hong Kong and China with Battle, Ford and the others, stayed in the same hotels, ate the same food and felt the same frustration at being denied travel visas into Pakistan.
Some of you may recall that the Maher "Mike" Hawash case was controversial for some time - until he pled guilty (see here for some archived links). This article in the Oregonian (by Mark Larabee et al.) goes into some depth on how Mostafa came to be recruited as an informant by the FBI and why he was picked to focus on this group. Here is another article by Mark Larabee which provides the same background in brief:
...law enforcement sources have confirmed that a former Tigard resident is the sixth man questioned by a sheriff's deputy at a Skamania County, Wash., gravel pit on Sept. 29, 2001. Investigators say four of the men, who were training with firearms at the gravel pit, later traveled to China and have been charged in the alleged conspiracy. The fifth man has been convicted of federal weapons charges.
The sixth man, Ilir Koni, 32, has not been charged...
...
Koni's name completes the list of six men who were questioned by police at the Skamania gravel pit. Also there were al Saoub, Battle, Ford, Ahmed Bilal and Ali Khaled Steitiye, who is in federal prison on weapons charges. Although Steitiye was not charged in the terrorism conspiracy, he is named as an unindicted co-conspirator.Before Sept. 11, Koni lived in a Tigard apartment building that is next door to The Gun Broker, a gun store where Steitiye illegally tried to buy an assault rifle. Steitiye's attempt to buy the gun a few weeks before Sept. 11, 2001, prompted a report by the gun dealer after the terrorist attacks.
The subsequent investigation of Steitiye and the publicity of his arrest jogged the memory of the Skamania County deputy, who called the FBI about his encounter with Steitiye and the others at the gravel pit. Investigators eventually inserted an undercover operative into the group to collect information and record conversations with the suspects.
So, to cut a long story short, the picture provided by the news reports until now (which partly rely on accounts by law enforcement officials in the Bush administration) was that there was a series of steps taken, utilizing the PATRIOT Act, to entrap and convict six people. There is no evidence that a warrantless wiretap was the basis of any of the arrests or convictions (although at least one defense attorney challenged the legality of the search warrant issued for Steitiye on other grounds).
2. Did warrantless spying on the "Portland Seven" lead to the prevention of any imminent terrorist plots?
The answer is clearly NO.
Deputy Attorney General James Comey's Sep 2004 testimony and the news reports discussed in Section 1 showed that there is no evidence that warrantless wiretaps were either required or played a role in identifying and convicting the "Portland Six" (since the seventh person died). Moreover, all of the arrests and convictions/plea bargains were obtained after the perpetrators had already attempted to go into Afghanistan via Pakistan (through China) to fight the U.S. on behalf of the Taliban and returned to the U.S. after having been unsuccessful in their attempt to enter Pakistan. So, while the convictions may have put away potential criminals or terrorists, they did not specifically disrupt any imminent terrorist plot:
Prosecutors say the group plotted to enter Afghanistan through western China with the intention of killing U.S. soldiers. Court records indicate the six men made it to China in October 2001 but couldn't get into Pakistan because of visa problems. They allegedly abandoned the effort and spilt up. Most returned to the United States.
Lewis did not travel with the group. She is charged with supporting the effort by sending money to Battle, her ex-husband, in Hong Kong, China and Bangladesh.
Battle is described as also having wanted to commit a terrorist act but he abandoned the idea even before he was first spied on (emphasis mine):
Less than a month before he was arrested, "Portland Seven" defendant Jeffrey Leon Battle asked an undercover FBI informant if he knew how to make a bomb and said he wanted to arm himself for a possible confrontation with authorities.
The September 2002 comments followed a series of secret "body wire" recordings in which Battle spoke of his consideration and ultimate rejection of committing a terrorist act in the United States, specifically to kill hundreds of Jews at a Portland-area synagogue or Jewish school.
The only other charge involved in the final conviction against two men was that they (along with many of their co-conspirators) undertook firearms training:
The five men -- Battle, Habis Abdulla al Saoub, Ahmed Ibrahim Bilal, Muhammad Ibrahim Bilal and Patrice Lumumba Ford -- also are charged with possessing firearms in furtherance of crimes of violence, for training with guns in Washougal, Wash., before leaving the country.
To be clear, this training also occurred well before their attempt to get into Pakistan and their convictions did not actually prevent any imminent attack. In fact, at the time the training occurred, the conspirators were not arrested by the local sheriff who stopped by the gravel pit where the training was ongoing because he did not know the purpose of this training. However, he reported the group to the FBI.
3. Would it have been impractical or impossible to find the "Portland Seven" and prevent them from doing any harm to the U.S. without a warrantless wiretap?
It is obvious from Sections 1 and 2 above that the answer to this question is NO.
If anything, every news report to date (prior to the latest NYT piece) indicates that the whole group of co-conspirators was caught based on warrant-based wiretapping using the help of an FBI informant.
APPENDIX 1
Here is Section 218 of the PATRIOT Act (emphasis mine):
SEC. 218. FOREIGN INTELLIGENCE INFORMATION.
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.
And Section 504 (emphasis mine):
SEC. 504. COORDINATION WITH LAW ENFORCEMENT.
(a) INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE- Section 106 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806), is amended by adding at the end the following:
`(k)(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against--
`(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
`(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
`(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
`(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 104(a)(7)(B) or the entry of an order under section 105.'.
(b) INFORMATION ACQUIRED FROM A PHYSICAL SEARCH- Section 305 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1825) is amended by adding at the end the following:
`(k)(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this title may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against--
`(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
`(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
`(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
`(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 303(a)(7) or the entry of an order under section 304.'.
APPENDIX 2
The conclusion in this post that warrantless wiretaps were not required and did not play a role in the arrest and conviction of the "Portland Six" is based on the caveat that former Deputy Attorney General James Comey was telling the truth about the case in September 2004 and that the various news reports detailing the history of how the FBI informant came to be used to obtain a warrant against Jeffrey Leon Battle are accurate. If any of this was false, then, by definition, the conclusions here will need to be reconsidered.