The Most Bizarre Jihadist Trial You’ve Never Heard Of

Orig­i­nal­ly pub­lished on Beaconreader.com, Novem­ber 4, 2013.

In Jan­u­ary, 2014 the ACLU filed a law­suit on behalf of Jamshid Mukhtarov. They are bring­ing their suit because Mukhtarov may have been direct­ly sur­veilled by the NSA — and they think it was uncon­sti­tu­tion­al to have done so. I wrote, when this was first revealed pub­licly last Novem­ber, that it was trou­bling to see why his case, which was so odd from the start, was get­ting atten­tion only now. That still trou­bles me.

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Jamshid Mukhtarov with his family in Denver.
Jamshid Mukhtarov with his fam­i­ly in Den­ver.

Jamshid Mukhtarov start­ed out as a cam­paign­er for human rights in Uzbek­istan, but was arrest­ed in the U.S. last year for mate­ri­al­ly sup­port­ing a banned ter­ror group. His case is a petri dish of what’s wrong with America’s war on ter­ror­ism.

Jamshid Mukhtarov start­ed out his pub­lic life cam­paign­ing for human rights in Uzbek­istan. After the hor­ri­fy­ing mas­sacre in Andi­jon, where hun­dreds of pro­test­ers were gunned down by gov­ern­ment troops, Mukhtarov fled to Kyr­gyzs­tan, and even­tu­al­ly as a refugee to Den­ver, Col­orado where he worked as a truck dri­ver. Yet now he’s on tri­al for pro­vid­ing mate­r­i­al sup­port to a banned ter­ror­ist orga­ni­za­tion. His case, and its many bizarre twists and turns, is a per­fect storm of how the legal side of the war on ter­ror­ism is devel­op­ing cracks peo­ple can slip through.

Mukhtarov used to be apromi­nent fig­ure in the Ezgu­lik Human Rights Soci­ety, based in Jiz­za­kh. Accord­ing to Fer­ghana News, he faced harass­ment from the Uzbek gov­ern­ment because of his activism.

Human rights activists and oppo­si­tion­ists giv­ing the pop­u­la­tion of Dzhizak the alter­na­tive infor­ma­tion on the trag­ic events in Andizhan this May are being sup­pressed and harassed,” Dzhamshid Mukhtarov of Human Rights Soci­ety Ezgu­lik told for­eign jour­nal­ists on Decem­ber 22 [2005]. Accord­ing to the activist, 15 rep­re­sen­ta­tives of the human rights com­mu­ni­ty were assailed and beat­en and threat­ened with dis­place­ment in Dzhizak itself and its envi­rons.

Mukhtarov him­self bare­ly avoid­ed arrest on fab­ri­cat­ed charges of being an Islam­ic fun­da­men­tal­ist in August 2005. He avoid­ed deten­tion only because Bir­lik leader Vasi­la Inoy­a­to­va phoned the then Inte­ri­or Min­is­ter Zakir Alma­tov on his behalf. Mukhtarov’s active­ness in the human rights move­ment rekin­dled his con­flict with law enforce­ment agen­cies.

Keep the name Vasi­la Inoy­a­to­va in mind for lat­er. She was instru­men­tal in help­ing Mukhtarov fend off fab­ri­cat­ed accu­sa­tions, pro­vid­ed by the Uzbek gov­ern­ment, that he was an Islamist. At least at the time, he was not. David Walther, who was liv­ing in Uzbek­istan, described how unusu­al the charge of Islamism was:

Anoth­er very inter­est­ing nugget that comes out of these sto­ries, though, is that in Dzhizak in par­tic­u­lar (I don’t nec­es­sar­liy recall see­ing this in oth­er regions) these human rights activists, when they are arrest­ed, are rung up on charges of “islam­ic extrem­ism” rather than the more sophis­ti­cat­ed (but equal­ly vague) finan­cial charges that Tashkent author­i­ties like to use. The Dzhizak author­i­ties seem con­sis­tent­ly more exhuber­ant about enforc­ing and main­tain­ing the par­ty line (along with an enthu­si­as­tic strain of Amer­i­ca-bash­ing) and less con­cerned about being open­ly cor­rupt than their Tashkent peers.

It’s entire­ly pos­si­ble that Mukhtarov had con­tacts with Islamist groups oper­at­ing in Uzbek­istan — there is, at times, some over­lap between legit­i­mate polit­i­cal oppo­si­tion to the abu­sive regime of Islom Kari­mov and the Islamists try­ing to unseat him. At the same time, the Kari­mov regime trumps up the Islamist ter­ror hype to jus­ti­fy crack­downs on polit­i­cal dis­si­dents, even when they have no con­nec­tion to those groups.

One clue about Mukhtarov’s affil­i­a­tions dur­ing that time is a leaked State Depart­ment Cable from the U.S. embassy in Tashkent in 2006. Jamshid has just tak­en over lead­er­ship of the Jiz­za­kh branch of Ezgu­lik, the human rights orga­ni­za­tion. It is in dis­ar­ray. Vasi­la Inoy­a­to­va, who had pre­vi­ous­ly advo­cat­ed on behalf of Jamshid Mukhtarov, was com­plain­ing Mukhtarov was not doing his job prop­er­ly. After months of argu­ing about finances and lead­er­ship (he believed Inoy­a­to­va was “too reluc­tant to mount open demon­stra­tions and protest pub­licly against the gov­ern­ment,” accord­ing to the cable), Mukhtarov broke with Inoy­a­to­va to join with a rival polit­i­cal par­ty.

That rival polit­i­cal par­ty got Mukhtarov into trou­ble. Though it is called the Free Farmer’s Par­ty and Mukhtarov had been cam­paign­ing on behalf of farm­ers who need help defend­ing them­selves from cor­rupt gov­ern­ment offi­cials, it was also open­ly call­ing for regime change in Uzbek­istan. Kari­mov, the dic­ta­tor, does not look kind­ly on such advo­ca­cy.  In 2006 Mukhtarov was caught pam­phlets from Human Rights Watch lit­er­a­ture about the Andi­jon mas­sacre, and was soon under house arrest over “sex­u­al harass­ment” charges. As before, with the accu­sa­tion that was an Islamist, those charges were with­out mer­it.

Mukhtarov was quick­ly smug­gled over the bor­der to Osh, Kyr­gyzs­tan. There, too, Mukhtarov faced harass­ment from the Uzbek secu­ri­ty ser­vices. Accord­ing to a July, 2006 report on the Kyr­gyz news site 24.kg, Mukhtarov said he faced the threat of death if he did not leave “with­in three days.”

By that time, the U.S. had begun pro­cess­ing asy­lum requests for Uzbeks who had fled the Andi­jon mas­sacre. At some point — it still unclear exact­ly when — Mukhtarov and his fam­i­ly came to the Unit­ed States as asylees.

It was here, in the U.S., that fed­er­al pros­e­cu­tors allege Mukhtarov became rad­i­cal­ized and began to com­mu­ni­cate with ter­ror­ist orga­ni­za­tions. In the pho­to above, scrounged up by Radio Ozod­lik, Mukhtarov is sport­ing a beard many think is a sign of adopt­ing Islamism. It is cer­tain­ly a dra­mat­ic change from the man at the top of this post, who did not have such facial hair. It also might be mean­ing­less. Some­times a beard is just a beard.

In the affi­davit for his arrest in Jan­u­ary of last year, the gov­ern­ment accused Mukhtarov of work­ing with the Islam­ic Jihad Union, a sort of splin­ter-group of Uzbek mil­i­tants hid­ing out in north­west Pak­istan.  The IJU is well-known to U.S. intel­li­gence for its brazen attacks in Afghanistan. “They are pret­ty hard­core,” says Noah Tuck­er, the man­ag­ing edi­tor of the Cen­tral Asia blog Registan.net and an expert on Uzbek­istan. “They want to be the Uzbek al Qae­da.”

The FBI gleaned this infor­ma­tion by mon­i­tor­ing his emails with the admin­is­tra­tor of Sodiqlar.com (now Sodiqlar.info), the web­site used by the IJU to adver­tise its activ­i­ties. In that email, Mukhtarov report­ed­ly said he was plan­ning to attend a “wed­ding,” which the FBI inter­pret­ed as being code for a sui­cide bomb­ing. Mukhtarov also report­ed­ly indi­rect­ly referred to IJU mil­i­tants as “our guys over there,” and had a fight with his wife about a trip to Turkey. When he even­tu­al­ly bought a tick­et to Istan­bul, the FBI decid­ed to grab him at the air­port.

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.

It is the point of Mukhtarov’s arrest that his plight becomes tru­ly bizarre. He fled his home because a repres­sive gov­ern­ment would not per­mit him to advo­cate on behalf of farm­ers, then threat­ened him with death for orga­niz­ing human rights activists in a neigh­bor­ing coun­try. His oppo­si­tion to the Kari­mov regime is with­out ques­tion — he’s been open about it. But what seems odd is how all of the talk from pros­e­cu­tors of his “join­ing” the IJU is just that: talk.

When he was first arrest­ed, in Jan­u­ary of 2012, offi­cials said he was “work­ing with the IJU,” and even hint­ed that he was plan­ning to fight over­seas (though at first they would not say where). They were explic­it, in talk­ing to reporters, that he had no plans to do any­thing inside the U.S.

Yet in a hear­ing about his case, the pros­e­cu­tor employed secret wit­ness­es — whose iden­ti­ties were kept secret for nation­al secu­ri­ty rea­sons — to impli­cate Mukhtarov in the glob­al jihad, some­thing the pub­lic record about him, and the pub­lic evi­dence released in the affi­davit, did not sup­port. The pros­e­cu­tor tried to con­nect Mukhtarov to both Osama bin Laden and Anwar al-Awla­ki, but did not pro­vide any direct evi­dence for the claim.

It is pos­si­ble Mukhtarov fell afoul of America’s loose­ly-word­ed mate­r­i­al sup­port laws, which can crim­i­nal­ize even com­mu­ni­ca­tion with banned groups. But that doesn’t make him a ter­ror­ist, as opposed to mere­ly unlucky.

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 reached out to Mukhtarov’s lawyer about the new claims. “Mr. Muhtorov’s indict­ment has not been expand­ed to include going to Syr­ia,” she respond­ed by email. She also said that he “nev­er was fac­ing” the charge of attempt­ing to trav­el to Afghanistan, despite the repeat­ed invo­ca­tions of Afghanistan in the ini­tial offi­cial dis­cus­sion about his case.

It’s not clear why the fed­er­al gov­ern­ment is accus­ing Mukhtarov of trav­el­ing to dif­fer­ent, chang­ing con­flicts in pub­lic but not adding these charges to his indict­ment. J.M. Berg­er, a researcher who stud­ies extrem­ism, looked at two superced­ing indict­ments and was puz­zled. “The vol­ume of doc­u­ments restrict­ed or redact­ed in this case is extreme­ly unusu­al,” he said, as is “the rel­a­tive absence of unredact­ed doc­u­ments.”

More­over, none of the pub­lic doc­u­ments about Mukhtarov and his indict­ments men­tion Syr­ia. Nor do any of his hear­ing tran­scripts or pub­lic state­ments by offi­cials until last month. It’s unclear where, how, or when Syr­ia sud­den­ly entered the pic­ture.

It’s pos­si­ble all of the redac­tion and incon­sis­ten­cies is because of those NSA inter­cepts that will now be a part of Mukhtarov’s case. That would make his case his­tor­i­cal­ly sig­nif­i­cant, as the first ter­ror­ism case involv­ing NSA col­lec­tion. But many ques­tions about Mukhtarov’s case remain.

The first is what, exact­ly, Mukhtarov has done? There remain in the pub­lic record no indi­ca­tion that he actu­al­ly planned to join the IJU to fight over­seas. He seems to have com­mu­ni­cat­ed with an IJU web­site admin­is­tra­tor and bought a plane tick­et to Turkey, but that on its own is not evi­dence of plan­ning to wage jihad (even if Turkey is a major hub for fight­ers trav­el­ing into Syr­ia). While it’s true that the mate­r­i­al sup­port laws might war­rant a pros­e­cu­tion here, so far there’s been noth­ing released that moved beyond what amounts to a thought crime: essen­tial­ly, talk­ing big on the inter­net and boast­ing over the phone.

The sec­ond is what else might be dri­ving this case? There is a chance that Mukhtarov is being pres­sured to give up more infor­ma­tion about Bakhtiy­or Jumaev, anoth­er Uzbek nation­al liv­ing in the U.S. who is accused of pro­vid­ing mate­r­i­al sup­port to the IJU. Mukhtarov is named in the crim­i­nal com­plaint against Jumaev, though in Jumaev’s case the pub­lic evi­dence is just as frus­trat­ing­ly vague and cir­cum­stan­tial as it is for Mukhtarov.

There is an addi­tion­al chance that Mukhtarov is being pres­sured to pro­vide infor­ma­tion about Fazlid­din Kur­banov, who was arrest­ed in May on charges of both mate­r­i­al sup­port for an Uzbek ter­ror group (this time the Islam­ic Move­ment of Uzbek­istan, or IMU) and “unreg­is­tered destruc­tive devices.” An addi­tion­al indict­ment filed by a grand jury in Salt Lake City charged Kur­banov with “dis­tri­b­u­tion of infor­ma­tion relat­ing to explo­sives, destruc­tive devices and weapons of mass destruc­tion” (which is the legal def­i­n­i­tion of a bomb).

Accord­ing to Kurbanov’s broth­er, Fazlid­din had trav­eled to the U.S. as a refugee from Tashkent, Uzbekistan’s cap­i­tal. A mutu­al friend advised Fazlud­din to trav­el to Den­ver, where he report­ed­ly became friends with Jamshid Mukhtarov and joined his truck dri­ving busi­ness.

There’s one hole in these the­o­ries: they’re not based on any­thing real. Fazliddin’s indict­ment starts its time­line in August, 2012, eight months after Mukhtarov was arrest­ed. If there is a Mukhtarov con­nec­tion, it’s com­ing after the fact. There’s equal­ly unclear evi­dence peg­ging Jumaev to ter­ror­ism — he is accused of send­ing Mukhtarov $300 for that wed­ding pros­e­cu­tors insist is ter­ror­ism and for post­ing some pro-IJU com­ments to a YouTube video. The indict­ment didn’t say what the $300 was to be used for, nor does it say how that mon­ey would aid the IJU.  It is dif­fi­cult to see how that is real­ly a crime.

It is pos­si­ble that the NSA-derived col­lec­tion fills in the pic­ture a bit more. In fact, it is pos­si­ble that NSA evi­dence was that secret “wit­ness” the pros­e­cu­tor at Mukhtarov’s first hear­ing men­tioned. But even there, it’s unclear what it could be: Pros­e­cu­tors have already said they had court orders to lis­ten to Mukhtarov’s phone calls and read his emails, and in their pub­lic indict­ment used that evi­dence to jus­ti­fy accus­ing him of vio­lat­ing mate­r­i­al sup­port laws. What else would the NSA add — is that where they got evi­dence he planned to go to Syr­ia?

But if that’s the case, why would offi­cials have told media last year — erro­neous­ly, it should be not­ed — that Mukhtarov had planned to fight U.S. forces in Afghanistan? That was a recur­ring theme of the media cov­er­age of his arrest and ini­tial indict­ment, but now that’s gone, replaced by talk of Syr­ia — where the IJU has nev­er been known to oper­ate.

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).

That is who the pros­e­cu­tion relied on to try to deny Mukhtarov’s well-doc­u­ment­ed his­to­ry with per­son­al­ly risky human rights activism in Uzbek­istan. It was aston­ish­ing to long-term watch­ers of the coun­try.

It is hard not to see Jamshid Mukhtarov as the vic­tim of bad luck. Last May he held a brief hunger strike to protest his aus­tere con­di­tions. He also may have bro­ken U.S. mate­r­i­al sup­port laws about banned ter­ror­ist groups.

The prob­lem, how­ev­er, is with those laws, which seem to have crim­i­nal­ized speech, even thought. Until last month, Mukhtarov was not pub­licly accused of want­i­ng to do any­thing beyond sup­port a ter­ror­ist group — and he is still not offi­cial­ly accused of want­i­ng to fight (that’s a line offi­cials have giv­en reporters even though it nev­er appears in his indict­ment).

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.

These men have fall­en through the cracks of the war on ter­ror and are being pro­found­ly pun­ished for their thoughts, asso­ci­a­tions, and trav­el pat­terns. This is, essen­tial­ly, pre-crime — accus­ing peo­ple of ter­ror­ism when they’ve done noth­ing but say some bom­bas­tic things in a gmail con­ver­sa­tion or phone call.

Before the U.S. gov­ern­ment admit­ted it had used NSA intel­li­gence in Mukhtarov’s pros­e­cu­tion, his case had fad­ed into the back­ground, just anoth­er for­eign name being accused of ter­ror­ism that no one paid atten­tion to out­side of a tiny com­mu­ni­ty of Cen­tral Asia ana­lysts. Now, his case if grab­bing high­er-lev­el atten­tion, and there is a chance it will rise to the Supreme Court over a chal­lenge about the legal valid­i­ty of using for­eign intel­li­gence col­lect­ed with­out a war­rant to pros­e­cute an asylee liv­ing in the U.S. All of the loose­ly defined and col­lect­ed evi­dence, poor­ly-word­ed laws, and guilt-by-asso­ci­a­tion by the FBI hasn’t been enough to ral­ly civ­il lib­er­ties advo­cates on Mukhtarov’s behalf; but the involve­ment of the NSA is.

There is prob­a­bly anoth­er mes­sage in there, but it’s too depress­ing to think about.