When "Terrorism" Becomes Farce: How the DOJ Blew a Case, Ripped Off Taxpayers, and Violated National Security Policy

Three years ago, the U.S. Justice Department made a breakthrough of sorts when it launched a terrorism court case in Sacramento, California. Until then, terrorism had been a scary business. Now we're looking at farce.

The case, known as USA vs. Harrison U. Jack et. al., accuses a military veteran named Harrison Jack and U.S. citizens of Hmong tribal descent of planning to overthrow the government of the Hmong's original home country, Laos, in Southeast Asia.

When the indictments were first announced in 2007, they sounded credible: An alleged conspiracy to acquire lethal military hardware. A plan to hire mercenaries for a bloody, violent coup. If convicted on all charges and sentenced to the max, the Justice Dept. claimed, the main defendants would serve two consecutive lifetimes plus another 38 years in prison. Yeah, you say -- so what's the joke?

The joke is that the more information that has emerged, the more it looks as though the prosecution should be on trial instead of the defendants. The naïve defendants, who are staunchly pro-American, never shot off anything more dangerous than their mouths. According to wiretap transcripts, they talked and talked -- initially, about bringing democracy and free elections to one of the last communist regimes in the world.

They got in trouble when a government undercover agent entered the picture, lied to them about nonexistent CIA connections, and tried to sucker them into buying Stinger anti-aircraft missiles, mines, anti-tank weapons and more. He also offered them mercenaries who had been trained in the U.S. special operations forces. Forget free elections! With his help, he said, the defendants could take over Laos, a country the size of California. To "prove" his sincerity, the undercover man rented an RV, stocked it with real and phony weapons and took the defendants through it one by one -- filmed by hidden video cameras.

It was like a crime comedy, or an Elmore Leonard novel, where everyone was trying to con everyone else. The U.S. government wasn't about to support overthrowing the government of Laos. Some of the Hmong-Americans were conning the gullible Harrison Jack, a retired California National Guard lieutenant colonel, about the real size of the Hmong resistance. The real Hmong resistance in Laos has a few rusty weapons and would have a hard time capturing a phone booth. And the real CIA operatives who once worked with the Hmong during the Vietnam War era, and know Laos inside out, have studied the so-called coup plan and pronounced it a joke. A knee-slapper. Hilarious.

Then there was the Justice Department's court strategy, so inept that it seemed designed to fail. On Oct. 15, U.S. District Judge Frank C. Damrell, Jr. skeptically asked a new prosecutor sent out from Justice Dept. headquarters -- the third prosecutor to argue the case to date -- to identify precisely which laws the defendants had broken. The man from D.C. struggled with his answers. Meanwhile, 3,000 Hmong-Americans demonstrated outside the courthouse, calling for all charges to be dropped.

So far, the prosecution has released more than 85,000 documents, according to reports by Denny Walsh and Steve Maganini in The Sacramento Bee. Most that I've viewed, such as photocopying receipts from Staples, are irrelevant to establishing guilt or innocence. Collectively, however, they matter in an unexpected way. Of the 12 original defendants in the case, 10 have government-appointed legal teams run by private law firms. Each legal team has the right to go through each and every scrap of what the government is calling evidence, with a warehouse full of seized papers that nobody has inspected yet and a trial that is nowhere in sight. And the law firms have a right to get paid for their work.

And guess who is paying for these swarms of defense lawyers and paralegals and investigators working year after year after year?

You are, as a taxpayer.

That's right. The joke's on you. Under the rules of the case, public funds are paying for the defense as well as the prosecution. Nobody I've talked to would 'fess up to their spending -- not the U.S. Attorney's office in Sacramento, or the undercover agent's superiors in the ATF -- the Bureau of Alcohol, Tobacco, Firearms, and Explosives -- or the office of the Federal Defenders, which sends reimbursement checks to the private defense attorneys. My guess is that the initial investigation, the arrests, and paying for both sides of the court case have cost taxpayers somewhere in the low tens of millions of dollars -- for a coup plan that could have never worked, and whose main catalyst was a government undercover agent who stood to benefit from the arrests.

The case of Harrison Jack is a pure government boondoogle. It is also an example of a post-9/11 terrorism genre based on what are called preemptive arrests. In preemptive cases, defendants can get indicted for talking about, or conspiring to commit, terrorist acts, even if they never lifted a finger to hurt anyone. The targets of these cases can be hostile to America, like al-Qaeda, or ethnic groups who are loyal to America, as the Hmong proved during the Vietnam War era.

The biggest problem with preemptive cases, it turns out, is that everyone involved in the law enforcement community has powerful incentives to bring them. Investigators get promotions for the indictments they bring, not for the convictions. Federal prosecutors get credit from their superiors in Washington for having "A" level or national security cases, even if the cases are weak. The incentives have created a herd mentality for creating these cases -- and a reluctance to give them up even if they are flawed.

For a while after Barack Obama was elected there was hope that his new attorney general, Eric Holder, would re-think the preemptive arrest policy and drop the Harrison Jack case. And, Holder's Justice Department has reviewed the case at least twice. The first time, the best-known defendant, the commander of Hmong forces during the CIA's war in Laos, Gen. Vang Pao, was dropped from the list of defendants for lack of evidence. The second time, however, the lawyers at Justice sharpened and refined their prosecutorial arguments with superseding indictments. They decided to proceed toward trial, even though actually getting to trial seems increasingly unlikely. Why press on? Apparently because the philosophy is, never let an "A" case go to waste.

That's when the prosecutors goofed again. The U.S. Attorney in Sacramento, Benjamin Wagner, announced the new indictments in a press release on his website. A link led to a letter he'd written about anti-terrorism on another web page, and this in turn had a link to the White House's recently-announced National Security Strategy. Click, click, click. If you were following the case on your computer, in a few seconds you could find yourself staring at Obama's National Security Strategy, at page 34, and scratching your head in amazement. The section header read:

"Spend Taxpayers' Dollars Wisely"

And that of course is exactly the problem with the Harrison Jack case. It's a complete waste of taxpayers' money. The text of the National Security Strategy continues, in part:

"The United States Government has an obligation to make the best use of taxpayer money and our ability to achieve long-term goals depends upon our fiscal responsibility. A responsible budget involves making tough choices to live within our means; holding departments and agencies accountable for their spending and their performance .... and being open and honest with the American people. ... Our national security goals can only be reached if we make hard choices ..."

I don't like saying this -- because I admire the real experts in the FBI and CIA and other agencies who are trying to keep this country safe from real terrorists -- but nobody in the prosecution in the Harrison Jack case has been making hard choices at all.

If they looked at the big picture of national security, they'd drop the faux-terrorism case in Sacramento and instead try to solve the small, real problem of the Hmong insurgency in Laos. Forty years after the Vietnam War was supposed to have ended, there are still a couple hundred Hmong insurgents left in the jungles of Laos, if you include women and children. They don't have a prayer of taking over their country. But they do have satellite phones on which they talk with their Hmong-American relatives nearly every day.

It is against U.S. interests to have American citizens support insurgents overseas. If we ask Saudi Arabia not to allow its citizens to support al-Qaeda, we can't let Hmong-Americans support their armed relatives in Laos. But for that matter, it's against everyone's interests, including these few impoverished, ragged Hmong in the jungles. They stay on the run. They eat bugs and roots to stay alive.

Most Hmong in Laos and the U.S. want to turn the page of history. They want peace. So why not work amicably with Hmong-Americans, without arresting anyone, get those satellite phone numbers -- and try to work out an amnesty deal with the government of Laos? I'm not saying it would be easy. The Lao People's Democratic Republic is a weird little regime, an ally of North Korea. Until quite recently, Laos had a policy of killing and torturing Hmong in the resistance. But in the last couple years, Laos has changed its approach toward the Hmong and is now somewhat more peaceable and forgiving. So why not give it a try? That is to say, why not try to solve the small real problem cheaply -- the vestigial Hmong resistance -- instead of spending tens of millions of dollars on a big, hyped court case?

As for the Sacramento court case itself, my own suggestion is to drop all the criminal charges but make everyone put on orange jumpsuits and pick up roadside trash for, say, ninety days. But I mean everyone, including the undercover agent and the prosecutorial team. There have got to be consequences for acting so stupid, and disregarding national security strategy. And that's no joke.

Author Roger Warner won an Overseas Press Club award for his history of the CIA war in Laos. He is currently working on a new book and a documentary film about the Laos war and its aftermath, including the Harrison Jack case.

Copyright 2010 by Roger Warner. A version of this piece was first published in the Sacramento Bee as the lead article in its Sunday Forum section.
Previous pieces by Roger Warner in the Huffington Post on the Hmong terrorism case, on the dilemma of the Hmong reistance, and on Bill Lair, the founder of the CIA's Hmong operation, include: The Weirdest Terrorism Case in America, The C.I.A. Man Returns, The C.I.A.'s Tribe in Dange, The Underperformers, and Peace At Last?