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Muhtorov, the IJU, and Foust: Part 2

January 31, 2012

This entry is my second contribution to a debate with Joshua Foust about the recent arrest of Jamshid Muhtorov, as well as Uzbek militant movements more generally. As with the first, it is co-written with Lauren Morgan — but this time with less bombast and self-indulgence. To review the debate so far:

Our article referred to Foust’s original contribution as “an epistemological wreck,” arguing that it made a number of claims that were either extremely hyperbolic or not supported by evidence. There were two parts to our argument. First, we argued that Muhtorov’s arrest did not constitute a “thought crime,” and that there was in fact probable cause for the arrest. Second, we argued that contrary to Foust’s original post, the Islamic Jihad Union (IJU), to which authorities allege Muhtorov was trying to provide material support, did in fact exist, and that there is reason to consider it a terrorist organization. On both of our points, Foust has either significantly backtracked or else conceded our points.

Probable Cause for Muhtorov’s Arrest

Foust’s original article argued that Muhtorov’s arrest amounted to “arresting people for sending emails… essentially criminalizing participation in a chat room.” In response, we quoted extensively from the arrest affidavit, establishing the panoply of facts from which authorities determined that Muhtorov was leaving the country to join up with the IJU — the act of going to join that organization constituting material support for a designated terrorist entity in contravention of U.S. law. We contrasted Muhtorov’s case with that of Youssef al Khattab, a big talker on the Internet who has spread militant Islamic propaganda from the U.S. — and has done so legally, his free speech rights protected.

In Foust’s rebuttal, he states that the area where we differ from him is “the presumption of Mukhtarov’s guilt.” This is plainly untrue. There is a significant difference between authorities having probable cause to make an arrest and proving a defendant’s guilt beyond a reasonable doubt (which is the standard for conviction following a criminal trial, and also the area where a presumption of innocence becomes relevant). In fact, we made this point abundantly clear in our entry, noting that Foust has elsewhere asked “if the current charges are trumped up,” and explicitly calling this “a fair question.” It is quite clear that we do not presume guilt in this case: rather, it seems to us that there was probable cause to make the arrest, which is an entirely separate question from guilt or innocence.

Foust goes on to say that his objection to Muhtorov’s arrest was not that authorities lacked probable cause, but rather that the material-support law is itself flawed: “Mukhtarov does seem to have fallen afoul of the ‘material support’ laws in the U.S. My argument, poorly stated in that initial post, was that those laws are themselves inherently flawed.” We will take him at his word that this was the point he was trying to make — as Foust concedes, the fact that he was doing so was not entirely clear. But two problems remain with his argument. One is that, in critiquing the basis for Muhtorov’s arrest, Foust either improperly portrays or else simply does not understand what Muhtorov is being charged with. The second problem is that there may in fact be a better legal regime than the current material-support laws, but Foust proffers no alternative.

Foust’s inaccurate portrayal of the crimes with which Muhtorov is charged is clear when one reads Foust’s entry carefully:

While scolding me for reducing the Mukhtarov indictment to “crimes on a chatroom,” Daveed pulls from the indictment itself a list of crimes that include sending emails favorable of Juma Namangani and saying he supports the goals of a website administrator. I fail to see the distinction, even if he is working on semantics rather than specifics, between “email correspondence with a website administrator” and “crimes on a chatroom.”

Muhtorov’s reference to Namangani actually occurred in a phone call rather than an e-mail, but that is beside the point. The larger issue is that referring favorably to Namangani is not a crime, and Muhtorov is not being charged for doing so. If authorities tried to criminalize speaking favorably of Namangani, we would both oppose it, as that would be a clear contravention of the speech rights enshrined in the First Amendment of the U.S. Constitution. This is a vital distinction: the bullet pointed list that we took from the affidavit did not constitute “a list of crimes,” but rather a list of acts that put together gave authorities probable cause to make an arrest on the basis that Muhtorov was taking concrete action to join a designated terrorist group overseas, and support its activities. In his portrayal of this point, Foust is either being dishonest or else did not understand the distinction between acts and crimes: we assume it is the latter, both because it’s always best to assume good intentions in one’s debating opponents, and also because we have not known Foust to be purposefully dishonest in his previous writings. But informed critique of the material support laws is impossible without getting the basic facts right about the basis for an arrest under this statue.

Foust argues that “just because Mukhtarov said some scary things on the Internet, that doesn’t mean he committed any traditionally-defined crimes in doing so. To criminalize this sort of correspondence veers dangerously close to creating thought-crimes.”Again, the correspondence wasn’t criminalized — see the above-referenced case of Youssef al Khattab, which we also mentioned in our initial post, as it is instructive about the latitude individuals are given to “say scary things on the Internet,” in Foust’s parlance. Muhtorov’s arrest, rather, is based on multiple factors: what he said on the Internet about his desire to join the IJU, along with the fact that he immediately began searching for tickets to Turkey upon doing so, along with telephone conversations that further clarified his intentions with respect to the IJU, along with telling his daughter that she would never see him again except in heaven, along with quitting his job before finally purchasing his plane ticket to Turkey. Put together, this is not the criminalization of correspondence, but a case study in how various pieces of evidence that are indicative of intentions can combine to give authorities probable cause to believe that an overt (non-speech) act is a crime. Foust can still argue that the law should not allow an arrest under these circumstances, but the first step in any critique should be understanding how the law actually operates.

This brings us to the second problem with Foust’s critique of material-support laws: it critiques them without offering an alternative. Americans who have traveled overseas to join designated terrorist groups have in fact succeeded in killing people: two recent examples are Americans who executed suicide attacks in Somalia, Abdisalan Hussein Ali and Shirwa Ahmed. So, if the material-support laws are bad, what would be better? On one end of the spectrum we could have no material-support laws at all: Americans could have the right and ability to join and assist any violent non-state actor they choose, anywhere in the world. We do not think that such a legal regime would be an improvement on the present system. On the other hand, perhaps there is a revision to current material-support laws that would be be superior to what we have now. If that is Foust’s position, he would make the best contribution not just by calling the present law “dumb,” but by finding and proposing that superior alternative.

The Islamic Jihad Union

One particular reason that we decided to weigh in on this debate was Foust’s initial claim that the IJU didn’t actually exist. To quote Foust: “There’s this IJU group, which still doesn’t exist outside of some Internet chat rooms.” We replied by showing, at some length, that the IJU does exist, that it’s a real thing that has undertaken operations. Foust replies that the real issue is whether the IJU is capable of global reach: “Just because a group says it has global aspirations, that doesn’t mean they are capable of global action or warrant a global response…. So when Daveed says that I argued the IJU doesn’t exist, he’s misrepresenting my argument.” This is obviously a hard position to sustain: his initial post said that the IJU “doesn’t exist outside of some Internet chat rooms” — and proving in response that it does exist constitutes an on-point refutation. Thus, Foust’s co-blogger at Registan, Nathan Hamm, noted in the comments to Foust’s latter post: “I think it’s hard to say that Daveed is grossly misrepresenting your position when you, well, said these things.”

Indeed, the only way Foust’s observations about the IJU can fit with his original critique of the Muhtorov arrest is if the IJU isn’t a real group, or really shouldn’t be considered a terrorist organization, thus underscoring the injustice of the arrest. So Foust now concedes our point, that the IJU exists; but he goes on to claim that our position is that “the IJU is a really real thing that does stuff and is scary.” The “scariness” flourish is, of course, just that — a flourish. As we made clear in our first entry, neither of us consider the Provisional IRA to be “scary,” or “a threat to all peoples.” But it is real, and it supports and undertakes violence, and we are better off if our government does not give Americans carte blanche to assist the organization.

That is all we really need to establish with respect to the IJU: that it is real, and that it supports and undertakes militant activities, and so designating it is a rational decision. Whether the IJU is “capable of global action” or not is beside the point with respect to a discussion of Muhtorov’s arrest. But it is worth noting that, as with Muhtorov, the case that the IJU is a real organization that undertakes violence is not a matter of trusting what they say on the Internet. There have been arrests by multiple governments — not just Uzbekistan but also Germany and Turkey. (While Foust argues that there may be a distinction between the IJU and the “Islamic Jihad Group” behind the 2007 plot to set off explosives in Germany, he certainly does not prove this point, and the intelligence sources with whom we have spoken deny this distinction. Foust himself mentions that a multiplicity of languages are being spoken within IJU, which includes non-Uzbek speakers, and this fact can lend itself to multiple translations of the group’s name. Indeed, various other jihadi groups, including al Qaeda in Iraq, have operated under different names and operated different websites.) Moreover, with respect to IJU’s Internet claims, one can — as with Muhtorov — look to the intersection between what it is claiming and the facts on the ground. The IJU has been able to provide credible accounts of attacks in Afghanistan and drone strikes in Pakistan that suggests an inside knowledge of these incidents — so when American analysts put stock in these IJU claims, they are not just taking these groups at their word. Rather, they are judging the IJU’s claims in light of external evidence that can either verify or undermine those claims.

So our overarching point is that it seems the IJU was properly designated as a terrorist entity. Whether or not it is a “global threat” is a beside the point. We do not claim to be able to pinpoint exactly how powerful it is at present, in part because the IJU is an institution in flux, as are many violent non-state actors. But as we can see from AQAP’s remarkable advances over the past year in Yemen’s Abyan province, jihadi groups are capable of gaining momentum beyond what analysts expect. This is not to say that the IJU or IMU will do so — but rather that, when exploring such questions as the threat a group poses, some degree of humility should always be in order.

Conclusion

And that’s all, folks. Foust has backed down from the rather soaring claims of his first post, and has adopted a more moderate position that opposes current material-support laws. His representation of what those laws actually prohibit is imperfect, but this post hopefully clarifies for Foust the distinction between crimes and acts that his previous posts misapprehend. The area where Foust could take this discussion in the future is toward a more sustained critique of the material-support laws. But if he does that, it is our hope that he will try to contribute to the question of what he would prefer in their place.

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