Being Wrong About the Big Issues
Review of Satanic Purses: Money, Myth and Misinformation in the War on Terror by R.T. Naylor
Satanic Purses: Money, Myth and Misinformation in the War on Terror
by R.T. Naylor (McGill-Queen’s University Press, 2006)
These days, there is quite a bit of frustration about how much secrecy has engulfed post-9/11 American counterterrorism efforts. In law enforcement and intelligence, a certain amount of secrecy is inevitable, in order to preserve the sanctity on ongoing operations and sensitive source and methods. Cops and spies, after all, depend on the element of surprise. Meanwhile, we live in a democracy. The trick for any republic is to strike the proper balance between operational security and the public’s right to know what is being done by their government in their name.
One aspect of U.S. counterterrorism that has not been cloaked in as much secrecy is efforts to combat terrorist financing, in part because success depend so much on the private sector and international cooperation. American officials involved in anti-financing initiatives have been very open what they have been doing in Congressional testimony, public statements and articles since 9/11. To understand how the United States is tackling the problem of terrorist financing - our goals and methods - one need only have access to the Internet.
For American financial prosecutors, the story goes something like this:
After 9/11, the leaders of the Department of Justice and the Federal Bureau of Investigation (FBI) immediately realized the value of third-party records in picking up the pieces and reconstructing how four American planes could be used as terrorist weapons. They also saw the value of financial information in determining who else might be planning to kill innocent people anywhere in the world. Moreover, we already had U.S. laws that made it a crime to knowingly provide material support to any of the subnational organizations designated by the Secretary of States as "foreign terrorist organizations," or to anyone else if the provider knew or intended the support to be used for a terrorist act.
Meanwhile, the FBI had information on persons within the U.S. suspected of acting as agents for international terrorist groups, which could not be shared with prosecutors without jeopardizing legal authority for electronic surveillance on these persons. If these information-sharing limitations could be relaxed, as some had argued before 9/11, we could unleash the aggressive group of apolitical U.S. white-collar prosecutors on the problem, and see what they would come up with. Persons who were exposed as possible defendants in "material support" prosecutions - or any crime for that matter - could be threatened with prosecution to compel their cooperation, which would give the United States broader intelligence on the problem.
Why were prosecutors so vital to these efforts? Even if the U.S. opted for military or diplomatic tools to redress particular counterterrorism needs, they were generally unavailable against persons located within the United States, including American nationals. For them, we would have to rely on the rule of law to identify and incapacitate them, and to compel their cooperation
The USA PATRIOT Act finally eliminated the wall that prevented full sharing of FBI intelligence with prosecutors, and they got busy. I was asked to be in charge of these efforts, gathered a group of experience financial experts in Washington, and made contacts with my colleagues in the field. I helped create a new FBI unit devoted to terrorist financing. We fought for resources, and conducted extensive training on the law, how intelligence is collected, and how it might feed into the criminal justice system. Were we operating in secret? Some confidentiality was inevitable, since news that we were preparing cases on particular persons and organizations would lead to the destruction of evidence and suspects fleeing the country. Nevertheless, we spent quite a bit of time writing testimony, and meeting with Congressional staffers. I personally wrote books and articles for public consumption which described exactly what we were doing. This was part of a conscious effort to be as transparent as possible.
The result in the more than five years since then has been nothing if not successful. More than 160 persons were charged with terrorist financing-type crimes, and the overwhelming majority of those cases that have been adjudicated resulted in convictions. (In contrast, prior to 9/11, there were a handful of cases.) These cases included defendants in the U.S. who had attended terrorist training camps in Afghanistan, and homegrown radicals who set out to donate their bodies to the terrorist cause. There are now experienced terrorist financing prosecutors and agents all over the country, trained and ready to do battle. We maintain that we established the U.S. criminal justice as an effective alternative to military remedies, and that prosecutorial tools provide American counterterrorism decisionmakers viable options. Most agree this is a good thing.
Against this background, it is hard to understand a recent book Satanic Purses: Money, Myth and Misinformation (McGill-Queen’s University Press 2006), by Canadian academic R.T. Naylor, which claims that Al Qa’ida is a "synaptic leap in some U.S. prosecutor’s brain," and that there is no such thing as a terrorist organization.
Naylor, it seems, is a tough case, for he is obviously a very seasoned writer (12 books to his credit), and Satanic Purses has all the trappings of a legitimate, well-reasoned account, which makes it all the more disturbing. Looks can indeed be very deceiving, and it is hard to view this volume by a reputable academic publisher as a serious book. Naylor seems to know this. In his acknowledgment section, he describes himself as perfectly willing to be wrong "about issues of matter." That is the first sign that something might be amiss. In this case, the issues do indeed matter, and the author is wrong.
Naylor’s thesis depends on crediting the worst motives by American counterterrorism personnel, and something absurd for anyone who had studied how the government operates - that official actions are motivated by a single brain. In Naylor’s world, the United States government is monolithic, and is capable of acting in accordance with the most vile thoughts of its individual leaders, which he has no trouble positing. This is an ironic position for Naylor to take, because he bemoans the application of the "one brain" theory to Al Qa’ida and all of the individuals who act in its name. He has no problem applying the characterization he finds unfair in the context of international terrorists to American counterterrorism, and to U.S. prosecutors in particular.
For example, Satanic Purses claims and that 9/11 was a lucky hit, and Naylor is not convinced that Al Qa’ida was behind it despite the fact that bin laden took credit for it and promised more. He believes that radical Al Qa’ida is a myth created by American law enforcement, much like they created the Italian Mafia, for the purpose of selling the public on draconian police measures and advancing their own careers, and that bin Laden’s claiming credit for something he might not have done brought some welcome perspective to the disparity between the attention paid to anti-American violence and what the United States perpetrates on innocent populations.
Because terrorist attacks are generally conducted on a shoe-strong budget by individuals nursing local grudges, Naylor argues we should not even try to fight the financing battles. If we do, the result is the American experience, and the "trampling on everything from due process to the right to financial privacy at home." Naylor’s alternative? Do nothing, for radical Islam would have died out naturally by now were it not for American efforts against it. The problem with this argument is that La Cosa Nostra would still be very much alive were it not for U.S. law enforcement, and Usama bin Laden is not Santa Claus. It is as hard to credit Naylor’s claim that terrorist organizations do not exist as the idea that terrorist attacks spontaneously occur.
Naylor goes to great length describing how our terrorist financing laws came about, and is some ways he is dead on. It is absolutely true that, after 9/11 U.S. prosecutors harnessed all the tools in their arsenal to go after the greatest threat of their generation. No new story here. We logically considered whether reporting systems used to combat drug-money laundering could be expanded or used for other ends, and we looked to RICO, just as we did to a more limited degree before 9/11. It is also true that we were not limited to Al Qa’ida, and they we moved against anyone in the U.S. we could show was providing financial assistance to lethal organizations like Hamas and Hizballah. We also relied on time-tested law enforcement techniques - informants, undercover stings, financial scrutiny - to develop evidence.
Were American prosecutors on a "search and destroy" mission, as Naylor claims? Absolutely. That is what the public demanded, and we operated in strictly in accordance with the Constitution, even if we suffered a few setbacks along the way. The record is an overwhelmingly positive one. Not to Naylor. About the American financial war on terrorism, he says "It was a chilling story with only one flaw - virtually everything it in was false."
The remarkable thing about Naylor’s arguments is how he turns government achievements (measured by convictions) into losses. I had a hand in every one of the prosecutions he mentions, and it is amazing the conclusions he reaches about them. Satanic Purses is a great example of the risk on non-lawyers, no matter how smart, venturing so aggressively outside their area of expertise. In Naylor’s analytical process, clear government victories are transformed into stunning defeats.
His first line of attack on American justice (Chapter 6) involves the New York trial of the several Al Qaeda operatives involved in the 1998 U.S. Embassy attacks in Kenya and Tanzania, in which Usama bin Laden was a defendant and remains a fugitive. The problem for Naylor is that the jury found all of the defendants present at the trial guilty. In order to turn this clear government victory into a defeat, he has to find a way to argue that the jury was incompetent. He does this by arguing that the pre-9/11 hysteria - at a time when most commentators believe Americans were not adequately familiar with the goals of Al Qa’ida - made a fair trial impossible.
Why was this trial (where, it should be noted, the jury was independent-minded enough not grant the prosecutors’ request for the death penalty) so unfair? It was because bin Laden did not have the religious authority to do certain things alleged in the indictment, like issue fatwas and demand that Al Qa’ida members swear loyalty to the organization. There, Naylor thinks he is on to something. Of course, whether bin Laden has the actual authority to act the way he did is not exactly relevant to what he allegedly claimed, or to what his adherents believed he was authorized to do. This is the relevance of what was included in the indictment.
This is the same mistake Naylor makes later in the book, when discussing the prosecution of a group of Hizballah operatives in North Carolina. Naylor attacks the prosecutors for including a reference to the defendants’ discussions of insurance that might be taken out on the lives of suicide bombers. It does not matter whether insurance policies were legally available for this circumstance. The insurance discussions came directly out of the defendants' mouths in intercepted phone calls, which was why it was included in the indictment (the relevant portion of which I wrote). The discussions showed that the defendants had bloody goals in mind, with some profit motive thrown into the mix.
Naylor’s scrutiny of these allegations in the New York and North Carolina indictments seems to overlook the purpose of the averments in the legal documents - to describe things known or believed by the defendants, even if those beliefs were erroneous. Of course, he is not a lawyer, which is part of the problem.
In the New York case, Naylor makes much of the fact that the U.S. did not have sufficient evidence before the attacks to file criminal charges against Usama bin Laden, necessary to seek his extradition from the Sudan and later Afghanistan. From this, he argues that bin Laden must be innocent. This ignores not only the fluid nature of evidence (the level of which necessarily varies with the time period) but also the difference between intelligence and evidence. The fact that the U.S. did not have admissible evidence against bin Laden prior to a certain time says nothing about whether he was in fact a dangerous person with eyes on killing as many Americans as he could.
Naylor then takes on the government’s star witness in the New York case, an al Qaeda turncoat named Jamal al Fadl, "a Valachi-style informant, and that a cynical US seized on the 1998 bombings to make Bin Laden the central culprit." He argues that there is no way he could have been an Al Qa’ida operative because he managed to steal funds from an organization that prosecutors painted as violent, and lived to talk about it. He takes snippets of al Fadl’s testimony and runs them through deconstruction analysis, concluding that there is no way the defendants could have been convicted on the basis of this evidence. In reality, the New York trial involved far more evidence than what Naylor excerpts in those three pages, and it is not clear how one can reach an overall conclusion about bin Laden or any of the other defendants’ guilt on the basis of an excerpt of one witness’ interview/testimony.
Many of Naylor’s legal argument lack basic logic. For example, he claims that the mere discussions of using RICO against bin Laden served to equate him in the public’s mind with the Mafia, which would apparently be a travesty. That unfairness would presumably apply to anyone charged or sued under RICO, a group that includes plenty of individual and entities (like Medicare providers) who no one has accused of being part of the Italian Mafia, yet none of these defendants - many of whom had resources to hire high-powered defense lawyers- have used Naylor’s argument about the fundamental unfairness of RICO, even when their experience with the statute went well beyond mere discussion of its actual application to them. He suggests, curiously, that charging someone outside the U.S. with RICO is equivalent to applying RICO in absentia. In reality, persons located overseas are routinely charged with US crimes, after which - if they refuse to surrender - they are treated as fugitives. This is what bin Laden is today.
Having tried to dispose of the inconvenient government victory in New York, Naylor turns to the other prosecutions, many of which were based on a designation/economic sanctions regime Naylor finds so distasteful. He claims that the evidence and criteria upon which terrorist designations are made is never disclosed, which would be a surprise to those entities who challenged their designations and received the factual basis with which to argue that the criteria (which is statutory or part of an Executive Order and public) was not met.
In the case of the designation Holy Land Foundation for Relief and Development (which Naylor erroneously refers to as the "United Holy Land Foundation") - a designation Naylor criticizes because it extended terrorist financing countermeasures beyond Al Qa’ida to a group accused of violently opposing the Oslo Accords - the basis for the December 2001 listing was a remarkable, declassified affidavit by the FBI Assistant Director for Counterterrorism, which was public for all the world to see. Naylor has not done his homework. Instead, he maintains that this particular designation decision "was made in secret, based on secret conclusory affidavits."
Naylor’s errors extend to the law and the legal tools available to prosecutors. The Antiterrorism and Effective Death Penalty Act of 1996 did not, as Naylor suggests, allow the CIA and military intelligence to conduct domestic espionage. The PATRIOT Act did not broaden by much the definition of "material support" - the only change was the addition of the words "expert advice and assistance." National Security Letters, which are not enforceable, are not the same thing as administrative subpoenas, and the addition of the various federal crimes of terrorism to the already broad list of RICO predicates was hardly a major change in the law. Treating the crimes as terrorism the way mail fraud and wire fraud are for RICO purposes is not something that give many much pause.
This confusion extends to the facts of particular cases. Naylor apparently thinks the government’s prosecution of the Holy Land Foundation died with a whimper, though he confuses it with the trial of the principals of INFOCOM, who were convicted of illegal exports. The Holy Land Foundation material support case is very much alive. Trial is pending, and will begin in July 2007.
In the Jose Padilla case in Florida, also scheduled to start later this year, co-defendants Adham Hassoun and Mohammed Youssef were not charged with supporting Hamas, or any particular terrorist organization. In the Chicago trial of Benevolence International Foundation, Naylor erroneously claims that Enaam Arnaout was charged for protesting his own innocence. In reality, Arnaout was charged initially with filing a false affidavit under oath denying that he had ever been involved in any violent movements, and he was eventually convicted of RICO. Some of his other errors:
- o His description of the Soliman Bihieri prosecution leaves the impression that the judge sentenced him to more time based on the terrorism enhancement. In reality, the judge expressly refused to apply the enhancement sought by the prosecutors.
- o It is not true that the Brits have refused extradition of Khalid al-Fawwaz, only that his U.K. extradition has not yet reached the point of accomplishment.
- o His reference to how a Senate Committee found nothing alarming about various Muslim charities overlooks the fact that the Committee has expressly stated it is continuing its investigation.
- o His description of the El Gindy case, the excellent case arising out of the Capital Markets Unit created after 9/11, and the prosecutor’s unsuccessful efforts to keep him in custody pending trial based on flight risk does not mention the fact that El Gindy was ultimately taken into custody after he tried to flee.
- o Ahmed Ressam the would-be bomber of Los Angeles International Airport, was never being charged with taking directions from bin Laden, contrary to Naylor’s suggestion that the case was lumped together as a grand, unified plot.
- o Before 9/11, it was not legal for Americans to visit Afghanistan. Most such travel was prohibited by economic sanctions prohibiting financial dealings with anyone located in locations controlled by the Taliban.
- o He refers to Washington Post reporter Douglas Farah having been appointed a Senior Fellow at the National Strategy Information Center of the University of Pittsburgh. Mr. Farah is not aware of this appointment, and there is no entity by this name affiliated with the University of Pittsburgh.
Other parts of Satanic Purses seem designed to generate outrage for things already well known. Naylor establishes the U.S. error in funding the mujaheddin in Aghanistan in the 1980s (no story here), but then claims - amazingly - that American cynicism bears at least as much responsibility as Soviet thuggery for the tragedy that beset Afghanistan, or for the consequences elsewhere. What about the American actions of invading Afghanistan after 9/11 and sweeping up the jihadists who would have otherwise have been free to plan and execute more 9/11-style attacks? Naylor exonerates the Guantanamo detainees as innocent victims who were merely at the wrong place at the wrong time.
In the end, what was so wrong about what how we used financial prosecutors? Naylor describes our post-9/11 efforts as "Throwing lethal punches in the air and hoping there are not too many innocent bystanders or at least no independent witnesses in the general vicinity." The problem with this argument is that our legal setbacks - a case in Detroit and one in Idaho - were the exception to the general success we achieved over the last five years. There is simply not the sense that the war on terrorist financing has been fruitless.
Near the end of the book, Naylor really takes his gloves off. Chapter 17 is the author at his most inexplicable, where he audaciously tries to lump the clear victories arising from undercover stings in New York into the category of law enforcement "misfirings." The only explanation is that Naylor somehow thinks everyone is as outraged as he is by the government’s resort to this time-tested, well-established law enforcement techniques, where the claims of entrapment were rejected by the juries.
Naylor’s occasionally sarcastic tone is evident from the cover of the book. The title Satanic Purses is obviously a play-on-words with Satanic Verses, the 1989 Salmon Rushdie novel that led to a death sentence for the author from Ayatollah Khomeini. Reading Naylor’s book, however, you would not be surprised if the author concluded that Rushdie’s plight was not real, or was somehow part of a conspiracy by the United States government rather than Shi’ite fundamentalists who believe they are justified in killing people who insult their religion. Fortunately, he does not go so far. He does refer to Manuel Noriega as having been "kidnapped" by the United States rather than arrested by the U.S. military pursuant to a valid warrant. He refers to Attorney General John Ashcroft as "Bible John" without using quotation marks, and ridicules an American general’s poor understanding of Arabic grammar, where the grammatical error is not at all evident to me from the quote Naylor offers.
Naylor’s tone is that of a person who thinks he is thoroughly on top of these issues, and he is not afraid to drip with sarcasm. His attempts to be humorous through parentheticals (which come off the page almost like annoying verbal ticks) fall flat. For example, he identifies the person who received the wire transfers for the 9/11 hijackers before they boarded the planes, Mustafa Ahmed al-Hawsawi, as "a Saudi ‘financier’ (aren’t they all?)." He facetiously refers to the "mass tourism ambitions" of Lackawanna, New York in speculating why the cell broken there was referred to as the "Buffalo cell." He describes an alleged stolen merchandise scheme involving breakfast cereal, saying "(but of course, terrorists had to first raise money by selling cereal before they could make other things go snap, crackle, pop)." He even trots out a quote from Britney Spears in suggesting that American jurors are simple-minded in accepting facts offered by the U.S. government.
I did not find myself laughing at Naylor’s jokes, nor nodding at his insights. It is almost as if the colleagues Naylor depended on to tone down his rhetoric got tired and put the book aside, without carrying their editing to the last 50 pages. Consider these two excerpts in the final pages of Satanic Purses:
"What to do about African 'conflict diamonds’ became one of the hottest topics discussed by the New York cognoscenti as they puffed contraband Cuban cigars and sampled poached Russian caviar whole seated at tables made from illegally cut Brazilian big-leaf mahogany in dining rooms embellished with looted Egyptian, Greek, and more, recently, Iraqi antiquities."
"When George Bush also listed as a terrorist organization the East Turkistan Islamic Movement, no doubt every blue-blooded American was relieved to find that such a threat to their right to life, liberty and the pursuit of a second SUV had been skewered, although they might also have paused to ask why, if the movement was so dangerous, the CIA had supported it with arms and money before bin Laden was born."
Do you get a sense that Naylor is a little annoyed at his American neighbors?
What Naylor fails to note is also inexplicable. His description of Ugandan history makes no reference to Idi Amin, and his description of Hamas - an organization he claims was created by the United States - does not mention the campaign of violence that has killed hundreds of innocent people (including several dozen American citizens) since 1994. He describes Hizballah, without mentioning its role in kidnapping Americans and bombing American military and diplomatic installations in the 1980s.
In the end, what are we to make of Naylor’s book? For me, it was easy to get through it, because I found myself actively engaged as I marked up so many pages with notes about his factual and legal errors, which is about the only thing positive I can say about it. I suppose it is an interesting document in illustrating why 9/11 naysaying has become such a cottage industry. Naylor’s motives may be understandable if the world of Canadian academia involves the same "publish or peril" ethos of the American universities, but this does not explain why a reputable press would publish a book that claims that there is no such things as a terrorist organization and that bin Laden was not involved in the events of 9/11. In addition to going beyond basic logic, these claims that American prosecutors affirmatively set out to debase the basic standards of the U.S. criminal justice system prove too much. I tried to contact Naylor about this review. He did not respond to my e-mail.
If Naylor is to be believed, I and my colleagues should most certainly be disbarred. I, for one, would welcome that inquiry. For anyone who is interested, my license number with the State Bar of California is 137407.