FBI to Veteran Diplomat Robin Raphel: “Do you know any foreigners?” #criminalizingdiplomacy

Posted: 1:29  pm ET

 

We’ve posted previously about Ambassador Robin Raphel in this blog. See Case Against Veteran Diplomat Robin Raphel Ends Without Charges, Who’s Gonna Say Sorry?. Also below:

Today, the Wall Street Journal runs an extensive account of what happened and why this case is a concerning one for American diplomats:

The NSA regularly swept up Pakistani communications “to, from or about” senior U.S. officials working in the country. Some American officials would appear in Pakistani intercepts as often as once a week. What Raphel didn’t realize was that her desire to engage with foreign officials, the very skill set her supervisors encouraged, had put a target on her back.

The FBI didn’t have a clear picture of where Raphel fit on the State Department organizational chart. She was a political adviser with the rank of ambassador but she wasn’t a key policy maker anymore. She seemed to have informal contacts with everyone who mattered in Islamabad—more, even, than the sitting ambassador and the CIA station chief.

[…]
State Department officials said that when they spoke to the FBI agents, they had the feeling they were explaining the basics of how diplomats worked.

At times, Raphel’s colleagues pushed back—warning the FBI that their investigation risked “criminalizing diplomacy,” according to a former official who was briefed on the interviews.

In one interview, the agents asked James Dobbins, who served as SRAP from 2013 to 2014, whether it was OK for Raphel to talk to a Pakistani source about information that wasn’t restricted at the time, but would later be deemed classified.

“If somebody tells you something in one conversation, you might write that up and it becomes classified,” he said. “But that doesn’t mean the next time you see them that you can’t talk about what you’d already talked about.”

[…]

Over the past two years, diplomats in Pakistan and the U.S. have scaled back contacts, according to officials in both countries. U.S. diplomats say they are afraid of what the NSA and the FBI might hear about them.

“What happened to Raphel could happen to any of us,” said Ryan Crocker, one of the State Department’s most highly decorated career ambassadors. Given the empowerment of law enforcement after 9/11 and the U.S.’s growing reliance on signals intelligence in place of diplomatic reporting, he said, “we will know less and we will be less secure.”

“Look what happened to the one person who was out talking to people,” said Dan Feldman, Raphel’s former boss at State. “Does that not become a cautionary tale?”

[…]

Diplomatic Security had yet to restore her security clearance. Some of her friends at the State Department said they believed the FBI opposed the idea.

Kerry and Raphel stood close together for only a couple of minutes. On the sidelines of the noisy gathering, Kerry leaned over and whispered into Raphel’s ear: “I am sorry about what has happened to you.”

Read in full below:

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Trump-Sharif TelCon Jolts World, India Issues Deadpan Response

Posted: 3:30 am ET

 

President-elect Trump had a chat with Pakistan PM Nawaz Sharif, see the read out below.  After Sharif’s invitation to visit Pakistan, Mr. Trump reportedly said he would love to come to Pakistan, “a fantastic country, fantastic place of fantastic people.” According to The Times of India,  the Indian Ministry of External Affairs spokesperson Vikas Swarup issued a deadpan response: “We look forward to the President-elect helping Pakistan address the most outstanding of its outstanding issues – terrorism.” 

The Trump Transition has released its own sober readout of the telephone conversation on November 30, but Pakistan’s version got all the eyeballs.

For comparison, click here for the WH readout of the phone call between President Obama and PM Sharif on November 21, 2014.  Click here for the readout of that same phone call from Pakistan’s Foreign Ministry.

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Pakistani PM Nawaz Sharif Up For Grabs on eBay For a Limited Time

Posted: 2:48 am ET

 

Over 200 people from Pakistan have been named as having offshore companies in the Panama Papers.  Media reports say that Prime Minister Nawaz Sharif is linked to 9 companies connected to his family name. He has faced strong criticism for it at home while he is reportedly in London for a medical checkup. On April 13, somebody with no apparent separation anxiety put up the prime minister for sale on eBay UK with a startling beginning price of £99.99.  There are currently 100 bids from 12 bidders.    The latest bid as of this writing is £66,200.00.

The seller’s description says “No box or instructions. Buyer must collect. Seller not prepared to touch item. Pick up from central London today, address will be supplied on completion of sale. Buyer must arrange own transport.” And that’s the nicer part of the description.

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It looks like the idea started off with UK’s prime minister.  A couple of days previously, somebody also tried to sell Prime Minister David Cameron on eBay, although it looks like the listing had been taken down with 5 days to go. There were 153 bids before it was removed.

 

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Suicide Attack in Lahore’s Gulshan-e-Iqbal Park Kills 70, Injures 250 in Pakistan

Posted: 1:08 am ET

 

USCG Lahore released a emergency message on March 27 informing U.S. citizens that a suicide bomber killed at least 60 people outside of Gulshan-e-Iqbal Park in Lahore’s Iqbal Town neighborhood in the evening hours of Sunday. It urged U.S. citizens to avoid this area and if aware of any U.S. citizens injured in this attack, to please call the American Embassy in Islamabad at 051 201 4000. Media reports say at least 70 people have now been confirmed dead and about 250 people have been wounded.

 

 

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Case Against Veteran Diplomat Robin Raphel Ends Without Charges, Who’s Gonna Say Sorry?

Posted: 7:59  pm EDT

 

Just saw the news that the Justice Department has closed its espionage investigation into former Ambassador Robin L. Raphel and will not file charges.

Via NYT:

Agents from the Federal Bureau of Investigation raided Ms. Raphel’s home and office in 2014 looking for evidence that she was spying for Pakistan, which Ms. Raphel adamantly denied.

“It was clear from the outset that this investigation was based on a fundamental misunderstanding,” Amy Jeffress, a lawyer for Ms. Raphel, said in a statement that sharply criticized government officials for revealing details of the investigation to reporters.

She added: “It is of the utmost importance to our national security that our diplomats be able to do their work without fearing that their routine diplomatic communications will subject them to criminal investigation.”

A message left with the Justice Department was not immediately returned, though officials there have consistently declined to comment publicly on the case.

The investigation began when American investigators intercepted a conversation in which a Pakistani official suggested that his government was receiving American secrets from Ms. Raphel, a conversation that led to months of secret surveillance.

The espionage case soon began to fizzle, however, leaving prosecutors to focus on the far less serious charge of keeping classified information in her home. Ms. Raphel, in negotiations with the government, rejected plea deals and has been adamant that she face no charges.

 

Related posts:

 

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USCG Peshawar: Local Employees Faisal Khan and Abid Shah Killed in Pakistan’s Federally Administered Tribal Areas

Posted: 4:12 am EDT

 

On March 1, we woke up to a report that two locally employed staff of the U.S. Consulate General in Peshawar, Pakistan were killed in Pakistan’s FATA area.  There were very few details. It looks like the source of the report was Secretary Kerry who talked about the casualties during his Remarks at the Strong Cities Network International Visitors Leadership Program for Municipal Leaders and Countering Violence Extremism Experts Event in Washington, DC.

The news nugget was in the 27th paragraph of his prepared speech at the CVE event:

I’ll tell you something, I’m always stunned by it. I mean, just this morning I woke up to the news that we’ve lost two local employees in Peshawar who work with our consulate there, who were going out on a effort to eradicate narcotics fields. And an IED exploded and several were lost and a few of the soldiers who were there to guard them also. Think about that.

We went looking for an official statement at state.gov and at U.S. Embassy Islamabad and its three constituent posts but there was none available.

We sent an email to the U.S. Embassy in Islamabad to see if the mission has any other details to share, but as of this writing we have not heard anything back.

Later on March 1, state.gov put out an official statement of the incident:

Earlier today, I learned that two locally employed staff with the U.S. Mission in Pakistan were brutally murdered in an attack against a Government of Pakistan Anti-Narcotics Force (ANF) convoy in Ambar tehsil, Mohmand Agency in the Federally Administered Tribal Areas (FATA) of Pakistan.

On behalf of the Department of State, I extend my heartfelt condolences to the families and loved ones of these brave individuals. I know nothing we say can adequately assuage their grief, but they should know we are thinking of them and share their profound sense of loss.

This senseless attack is a compelling reminder of the risk taken every day by our diplomats and the local staff around the world who make diplomacy possible. It also is a testimony to the courage and commitment shown by both Americans and Pakistanis who struggle to combat the scourge of terrorism and build a more stable, secure, and prosperous future for Pakistan. We have offered our assistance to the government of the region in investigating the incident and bringing the perpetrators to justice.

The Department of State holds in the highest regard all our host country colleagues who serve in our missions around the world. These men and women choose a life of service to improve the lives of their families and citizens and are essential to helping implement our goal of promoting shared prosperity and values. They are our friends, our teachers, and our guardians, and we are profoundly grateful for the sacrifices they make every day.

 

The New York Times identified the two employees as Faisal Khan, an “anti-narcotics official,” and Abid Shah, a driver employed by the Bureau of International Narcotics and Law Enforcement Affairs.  They were reportedly killed when the bomb detonated as their convoy was traveling in the Mohmand tribal region. Four other people, including two Pakistani security officials, were wounded. The anti-narcotics team had been reviewing poppy eradication efforts in the area.  According to the NYT, Jamaat-e-Ahrar, a faction of the Pakistani Taliban, claimed responsibility for the attack.

The Express Tribune identified Faisal Khan as a project development specialist for the consulate; other local media has identified the casualties as employees of USAID.

State/INL has the following country program in Pakistan (INL/AP):

INL and the Government of Pakistan have collaborated on counternarcotics (CN) activities since the 1980s. INL’s counternarcotics portfolio includes training and operational support to law enforcement agencies as well as crop control and demand reduction projects implemented through local channels. Pakistan’s CN efforts are led by the Anti-Narcotics Force (ANF) under the Ministry of Narcotics Control, but also include several other law enforcement agencies such as the Frontier Corps- Khyber Pakhtunkhwa (KP) and Frontier Corps – Baluchistan as well as the Home Departments of Khyber Pakhtunkhwa and Balochistan provinces.

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House Judiciary Committee Unable to Make a Distinction Between a Fiance(e) Petition and a Fiance(e) Visa

Posted: 4:15 am EDT

 

House Judiciary Committee Chairman Bob Goodlatte said in December that immigration officials did a poor job reviewing the financée visa application of Tashfeen Malik, one of the shooters in the San Bernardino, Calif., rampage that left 14 dead.  Goodlatte said he reviewed the application and found there was insufficient evidence to prove Malik and U.S. citizen Syed Rizwan Farook, had met in person — a requirement for a foreign national seeking a K-1 financée visa before being allowed entry into the U.S.

Let’s say that the couple did not meet, 8 U.S. Code § 1184 – admission of nonimmigrants provides for that exception. Below is the relevant section of the immigration law that our U.S. Congress passed:

(d) Issuance of visa to fiancée or fiancé of citizen

A visa shall not be issued under the provisions of section 1101(a)(15)(K)(i) of this title until the consular officer has received a petition filed in the United States by the fiancée and fiancé of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convictions of the petitioner for any specified crime described in paragraph (3)(B) and information on any permanent protection or restraining order issued against the petitioner related to any specified crime described in paragraph (3)(B)(i). It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with sections 1229a and 1231 of this title.

 

The American citizen petitioner is asked to submit evidence that he/she or his/her fiancé(e) have met in person during the 2 years preceding the filing of the I-129F petition. Such evidence may include a written statement from the petitioner and/or the beneficiary stating the exact date(s) on which the parties have met in person, copy of airline tickets, passport pages, or other evidence showing the U.S. citizen petitioner and the beneficiary have met in person during the requisite time period.

There are two exceptions to the “meet in person within 2 years before filing a fiance(e) petition” that DHS allows. The applicants must establish (PDF) that:

(1) The requirement to meet the fiancé(e) in person would violate strict and long-established customs of the the petitioner or fiancé(e)’s foreign culture or social practice; or

(2) The requirement to meet the fiancé(e) in person would result in extreme hardship to the American citizen petitioner.

In any case, it doesn’t look like the petitioner requested an exemption to the personal meeting requirement.  On December 19, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) released a copy of of what he says is “Malik’s K-1 Visa application” (see pdf).  What Mr. Goodlatte actually released is not/not a copy of  Malik’s K-1 visa application but U.S. citizen Farook’s Fiancee Visa Petition (I-129F) on behalf of Pakistani national, Tashfeen Malik.

It looks from the petition that Farook made an Intention to Marry Statement indicating that they were both in Saudi Arabia in October 2013.  If there is a question here, it might possibly be that the Farook submitted copies of passport pages that show the ID pages and admission stamps without the English translation. The I-129F notes that “The petitioner must submit the English translation of the admission/exit stamps.” We don’t know if he ever did, but the petition was presumably approved, or she would not have been issued a visa.

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But man, oh, man, the congressional folks looking into this could not even make the distinction between a petition and a visa?

The U.S. citizen petitioner, in this case, Syed Farook submitted the I-129F Fiance(e) Visa petition to DHS. That’s the document that Mr. Goodlatte released online. The alien beneficiary of the petition, in this case, Tashfeen Malik, then applied for a fiancee visa at a consular post overseas. According to the State Department’s deputy spox, she did that at the U.S. Embassy in Islamabad. She would have been required, among other things, to fill out a DS-160 form, an Online Nonimmigrant Visa Application form,  for temporary travel to the United States, and for K (fiancé(e)) visas. Form DS-160 is submitted electronically to the Department of State website via the Internet. Consular Officers use the information entered on the DS-160 to process the visa application and, combined with a personal interview, determine an applicant’s eligibility for a nonimmigrant visa.

The DS-160 form is not available to fill out as a PDF but information asked in that form is available in an unofficial sample form here (PDF).

There’s a notion that if only the K visa was not issued to Malik or if only she were “fully” vetted, perhaps San Bernardino would not have happened. But the other half of the shooters was one of our fellow citizens! Yes, maybe Farook wouldn’t have done it without her. Or maybe Farook would have found someone else and still kill all those people.  We don’t effing know. All we know right now is it happened.  Sure, we can focus on whether there was enough evidence of a personal meeting or not, but is that going to help us understand the whys and hows behind this attack.

Beyond the question of whether these two have personally meet or not prior to coming to the United States, the larger issue seems to be: how do you determine the intent of a person coming to the United States if he/she has a clean record? The fact is anyone can change one’s intent between the time a visa is issued/entry is allowed into our borders and when action occurs at some later date. It need not have to be a K-1 visa; it can be any kind of visa. It need not have to be a one entry, 90-day visa, it can be a multiple entry, 60 months visa. And it can be a U.S.  citizen born, raised, radicalized within our borders, coming back to this country, or already living here.  Absent a glass ball, or a pre-cognition system, there is no “full vetting” able to predict a hundred percent an individual’s intent or behavior into future.

And then there’s this: researchers at the Center on National Security at Fordham Law (CNS) analyzed 59 individuals in their ISIS Cases in the United States study (PDF) in 2015.  Of the 59 individuals, 17 are domestic plotters, and 100% U.S. citizens. The study notes that “overall, the accused are diverse and difficult to profile, racially or ethnically. They belong to a wide swath of ethnic backgrounds including African, African American, Caucasian, Asian, Eastern European, and South Asian.  Few are of Middle Eastern Arab descent.” 

Among the characteristics of the foreign fighter and domestic plotter groups in that study?  The vast majority, 81% are U.S. citizens, their median age is 24 years.  At least one third are converts to Islam and 14% have previous felony convictions. Some food for thought for folks who bother to think this through.

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Why Are Court Cases Related to US Passports and Immigrant Visas in Yemen and Pakistan Sealed?

Posted: 2:51 am EDT

 

This past October, we blogged that the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013” (see Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport).

While researching another court case, we discovered the Hasan v. State Department case. This is a case where the petitioner asked for judicial review of a US Embassy Yemen consular official’s decision of ineligibility for an immigrant visa on behalf of a minor child. Following the filing of this case and the closure of the US Embassy in Sanaa, the US Embassy in Cairo apparently became the post designated to handle visa applications from Yemen. US Embassy Cairo reviewed the prior ineligibility, reversed US Embassy Sana’a’s decision and issued the immigrant visa. The parties subsequently agreed to dismissed this case with prejudice at no cost to Mr. Hasan or the State Department.  Except for the court ruling stipulating the dismissal of the case, all other files related to this case are sealed in court.

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1:15-cv-04312-GHW | Hasan v. U.S. Department of State et al.

A closer look at other cases filed in the New York District Court indicates several other court cases against the State Department, US Embassy Yemen, US Embassy Pakistan, Ambassador Matthew Tueller, Ambassador Richard Olson and related federal agencies have also been sealed.

We suspect that these are cases related either to U.S. passport revocations, non-issuance of U.S. passports or immigrant visas in Yemen and Pakistan.

Following the federal court decision ordering the State Department to return the passport improperly revoked by the State Department, we asked State/OIG about this trend and we’re told that the OIG does not have “anything on this issue on which it can comment.” It was suggested that we check with Consular Affairs. And of course, we have previously asked CA about this, but we do not really expect them to address this in terms of oversight.

The court documents in the Omar case suggest that Consular Affairs is revoking U.S. passports contrary to the rules in the Foreign Affairs Manual. But this is not the only case. If all similar cases have the same threshold as the Omar case, it is deeply troubling not only because the revocation appears not to follow State Department’s written guidance, State also never seek to denaturalized the plaintiff.  Which basically leaves the plaintiff still a citizen of this country  but unable to travel anywhere.

Which brings us to the question as to why these court files are sealed in court. It is possible that these cases all relate to minor children, could that be the reason for sealing the court records? Or is it something else?

Below are some of the cases we’ve located; all sealed unless noted otherwise:

1:15-cv-06425-NGG  | Abdu v. U.S. Department of State et al — filed on 11/10/2015. Defendants include Secretary Kerry  and US Ambassador to Yemen Matthew Tueller.

1:15-cv-05684-FB | Alzonkary et al v. Holder et al — filed on 10/02/2015. Defendants include Secretary Kerry, US Embassy Yemen’s Ambassador Tueller and CA’s Michelle Bond.

1:15-cv-05587-JG | Mansour Fadhil et al (on behalf of minor children). Defendants include Secretary Kerry.

1:15-cv-06436-FM | Al Zokary v. United States Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller

1:15-cv-04312-GHW  | Hasan v. U.S. Department of State et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller. The case was dismissed in August 2015 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files except the Stipulation are sealed.

1:15-cv-01767-ILG  | Hasan et al v. U.S. Department of State et al. Defendants include Secretary Kerry and US Ambassador to Pakistan Richard Olson.

1:14-cv-07093-PAC | Issa et al v. Holder et al. Defendants include Secretary Kerry and US Embassy Yemen’s Ambassador Tueller.

1:14-cv-02584-ER | Alsaidi v. U.S. Department of State et al. Defendants include Secretary Kerry and Karen H. Sasahara in her official capacity as charge d’affaires ad interime of the U.S. embassy in Sana’a, Yemen.  The case was dismissed in 2014 with a stipulation that it be dismissed with prejudice and without costs or attorney’s fees to either party. All files remained sealed.

1:13-cv-06872-PKC  | Mohammad et al v. Beers et al. Defendants include Secretary Kerry. The case was voluntarily dismissed in July 2014, all files remained sealed.

2:13-cv-04178-ADS  | Arif et al v. Kerry et al. Defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was dismissed with prejudice in September 2013, with each party bearing its own costs, fees, including attorney’s fees, and disbursements. The files remained sealed.

One passport case from November 2013, 1:13-cv-08299-AJP Kassim v. Kerry is not sealed.  The case was dismissed in March 2014 with a court order for issuance of U.S. passport to plaintiff. “Within 30 days of the entry of this order, Plaintiff will submit to the Department of State a new un-executed but signed passport application (Form DS-11) with passport photos and a copy of the front and back of a valid government identification card. The Department of State will issue Plaintiff a U.S. passport book and a U.S. passport card within 30 days of receipt of Plaintiffs passport application and supporting documentation (described above in subsection 2(a)). This action is hereby withdrawn and dismissed with prejudice and without costs or attorney’s fees.”

One immigrant visa case from 2014, 1:14-cv-03748-KAM | Chaudhry et al v. Holder et al. is also not sealed. The defendants include Secretary Kerry and Embassy Islamabad’s Ambassador Olson. The case was voluntarily dismissed with prejudice in light of the State Department granting of an immigrant visa to Plaintiff.

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