And Daveed Wins Everything, Forever

by Joshua Foust on 1/31/2012 · 7 comments

Daveed Gartenstein-Ross ups the ante in his “friendly” sparring with me on the Mukhtarov arrest:

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.

And blah blah blah. Since Daveed can’t be bothered to quote me accurately (or even reference the times posting things to the Internet WAS declared a crime) in his no-longer theoretical evisceration, like the multiple times I did not limit my complaint about the Mukhtarov case to things said on the internet or the phone (“he allegedly got ideas from a website and bought a plane ticket”), I really don’t feel the need to play into his gambit of insulting my intelligence, reading skills, or honesty. Think I’m exaggerating?

[W]e 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…this post hopefully clarifies for Foust the distinction between crimes and acts that his previous posts misapprehend.

If that’s how he plays a friendly debate, he wins all debates on all topics, Forever. I’d suggest he declare victory and go home, but he already did that. Well done.

The end.

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This post was written by...

– author of 1848 posts on 17_PersonNotFound.

Joshua Foust is a Fellow at the American Security Project and the author of Afghanistan Journal: Selections from His research focuses primarily on Central and South Asia. Joshua is a correspondent for The Atlantic and a columnist for PBS Need to Know. Joshua appears regularly on the BBC World News, Aljazeera, and international public radio. Joshua's writing has appeared in the Columbia Journalism Review, Foreign Policy’s AfPak Channel, the New York Times, Reuters, and the Christian Science Monitor. Follow him on twitter: @joshuafoust

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Total February 1, 2012 at 8:55 am

Would you like some cheese with that?

Xenophon February 1, 2012 at 9:38 am

The FBI criminal complaint document (linked in Foust’s original post on this subject) that provides the publicly available evidentiary basis and probable cause for the arrest of Jamshid Muhtorov is like most such documents–elliptical and poorly written. As a matter of fact, it reminds me of the ludicrous complaint document for Mansoor Arbabsiar, the Iranian-American used car salesman in Texas who was supposedly planning the imminent assassination of the Saudi Ambassador in Washington. There are many passages in the Muhtorov document that should have included longer quotations to provide a detailed account of the allegedly suspicious behavior. There are far too many short, selective, one- and two-word quotations that could be used to distort the authentic sense of what was actually said. In short, the document, in my view, fails to establish probable cause for the material support to terrorism charge laid against Muhtorov.

In Section 13, the document says Muhtorov emailed Muhammad on 5 Feb 11. Well, what did he say? Why is none of the substantive content included? This was presumably their first communication, which might be expected to be significant in the establishment of a new relationship. Wouldn’t that be important to include?

In Section 14, how do we know that the message of 8 Mar 11 was “from the IJU?” The investigator says that by “our guys over there,” Muhtorov means IJU. Why does the FBI believe that that means IJU? Why are only isolated words quoted instead of complete passages that actually convey what specifically was said in context?

Section 15 is the key part of the document, as it is here that Muhtorov supposedly commits himself fatefully to Bay’ah. But what exactly did Bay’ah consist of? The only quoted words are “ready for any task, even with the risk of dying.” That’s it. Even the subject and verb are not included inside the quotation marks. Frankly, I don’t trust this document. Since this is really the part of the set of tenuous allegations that would provide the probable cause, we should see a full quotation. Who knows exactly in what context the aforementioned fragmentary quotation was actually used? If “pledging allegiance” to IJU is the centerpiece of the allegation, then WHY did the FBI not provide a full quotation?

Let me be clear: This set of carefully pared-down quotations DOES NOT, in my view, constitute probable cause.

In Section 17, Muhtorov is informed on 4 May 11 that he was not “invited to the wedding.” Again, a fuller quotation would have provided context. Obviously, he is being told by someone that his services are not needed for some task. The investigator provides no supporting analysis, but with a fuller quotation, it might well have been made clear. With every fragmentary quotation, I grow more mistrustful.

In Section 21 On 8 Jul 11, Muhtorov’s wife Nargiza reminds him laughingly on the phone: “Didn’t you want to go to Turkey?” Now, if the Muhtorov’s trip to Turkey was part of some terror group operation, it seems strange that his wife–who would probably understand that SOMETHING was up–could laugh about it on the phone.

In Section 22-24, on 20 July, Nargiza tells Muhtorov that she and the kids will fly to Bishkek via Istanbul five days later on the 25th. Muhtorov then causes her to jump through hoops by asking whether she can’t get another ticket so he can accompany them to Istanbul. So how does the FBI interpret the fact that off the top of his head, he decides he might want to fly to Istanbul in five days, and then, when a seat is unavailable, decides not to go? This gives no indication of planning to do anything very specific or previously coordinated in Istanbul.

Even more interesting is the 22 July phone call in which Muhtorov and Nargiza fight and he tells her, “Choose–me or your mother.” Well, if he is preparing to perform some sort of jihad service, what can the “choose me or your mother” quote mean? If he were headed on a jihad mission, there would be no choice–at least for the mission’s duration–would there? And once again, the selective quotes make one suspicious about what really transpired between the two of them. Three days later on 25 July, Muhtorov’s family departs and he is on the phone to his daughter saying he will never see her again except perhaps in heaven. So, let me get this right, he could have said all that to her in person–if he were embarking on a jihadi op–but instead, he waits until she has left for the airport and says it over a phone he knows is being monitored (per his 8 March conversation). Does this make any sense? And not to sound like a broken record, but NONE of this passage is in quotation marks. I don’t trust it AT ALL.

On 1 Aug 11 in Section 25, Muhtorov makes a reference to the planned return of his family in September–presumably from Kyrgyzstan to the US. At this point, the document becomes totally unclear about where Muhtorov’s family is. The next reference to them is during the period 3-7 Jan 12. Is Nargiza back in the US? Section 28 recounts him asking Nargiza to find his passport, indicating she IS, in fact, back in the US. So what happened to the bit about “never seeing his daughter in this life” that took place back in July?

The only other information is about Muhtorov’s purchase of tickets for Turkey on 16 Jan 12, just prior to his arrest, and that concludes the description of Muhtorov’s doings between Feb 11 and Jan 12.

So, where is the probable cause here? I don’t see it.

The website is thought–based on “public reporting”–to be “affiliated with IJU.” Affiliated, eh? That’s nice–whatever it means. Muhammad is asserted to be an IJU “facilitator.” How do we know this, considering that we are relying on unspecified “public reporting” for indication of the website’s “affiliation” with IJU in the first place. I suppose that al Jazeera’s willingness in 2001-5 to broadcast AQ messages made it an “affiliate” of AQ as well.

It is also interesting that when Muhtorov finally DID decide to leave the US for Turkey, he hadn’t had any communications–based on the criminal complaint document–with Muhammad or anyone else in over four months. In fact, there is simply a huge gap in the complaint document’s timeline between 4 Sep 11 and 3 Jan 12, and the only communications in January, prior to his attempted departure for Turkey, are with Nargiza. If he were going to join an organization, would there not have been some type of communication to coordinate his link up as the time to depart approached? But there is nothing. He obviously suspects nothing since he is talking on the telephone to his wife about getting his passport. Why, if he were trying to slip out of the US and had already indicated that he suspected he was being monitored would he provide a key indicator that he was trying to leave? It’s inexplicable.

Finally, there is this question: If the information in the criminal complaint document constitutes probable cause, then why did the FBI wait until January to arrest him? The supposed “Bay’ah” took place in July 2011, and no communication with anyone save his wife after early September is included in the document. Why wait six months if the evidence was adequate? The answer may well have been that the FBI knew their probable cause was weak and wanted to get more information that was not forthcoming. When Muhtorov finally purchased his tickets for Istanbul, their hand was forced. This would also explain the cagey presentation of inadequate information in the document.

Having looked at Daveed Gartenstein-Ross’s “evisceration,” I think the case he lays out–its preening self-indulgence aside–is based entirely on a shallow reading of this inadequate criminal complaint document and therefore useless. I broadly agree that the allegation is “thin stuff” but the issue is, for me, not so much “criminalizing participation in a chatroom” as it is the withholding of critical information and, consequently, the failure to establish adequate probable cause. This leads one to suspect the charge against Muhtorov may be trumped up for some purpose–presumably to scratch Karimov’s back in one way or another. We need to see a much more complete transcript–and in the original language in some cases for an independent translation–to judge probability of cause and plausibility of the allegation. That, I’m sure, will not be forthcoming.

Joshua Foust February 1, 2012 at 10:57 am


I appreciate the lengthy exegesis of the affidavit, and you picked up on more than a few things I’d missed in my reading of it. However, I don’t think there’s much evidence to suggest Mukhtarov was arrested to “scratch Karimov’s back.” There’s no evidence to suggest that happened, or has ever happened. I like to draw a sharp distinction between making decisions about groups and responsibility based on faulty or thin information (which is how I’d characterize, say, the 2004 embassy bombings in Tashkent) and the FBI doing a foreign security service’s dirty work for it.

That being said, I do think Daveed is right in that the FBI felt it had probable cause to arrest Mukhtarov. You and I agree that the evidence for that probable cause seems really flimsy but I don’t think there’s evidence yet to allege perfidy or conspiracy.

Xenophon February 1, 2012 at 1:41 pm


Yes, the bit at the end about dealing with Karimov is certainly speculative on my part–that I will admit–though that sort of thing is hardly uncharacteristic of us (or anyone else for that matter).

As to the main issue, probable cause, my view–as I have said–is that there is no way for us–the public–to know given the information with which we have been presented. I can’t say what the FBI THINKS, but as far as I am concerned, probable cause should be self-evident and not require us to take on faith what LE may or may not think. How does Daveed, who knows no more than we do, know what the FBI thinks or knows?

Let me ask this: From your reading of the criminal complaint document, would you agree that if we had the transcripts of the conversations/emails (appropriately declassified), we would be much better able to judge whether, in fact, there was probable cause for the arrest?

Joshua Foust February 1, 2012 at 2:29 pm

I agree fully with your point that knowing the full context of what the FBI is referring to would let us judge whether or not there really was probable cause.

Unfortunately, I doubt they’ll release said transcripts pre-hearing (or pre-trial). Rather, we have to hope that the judicial system is capable of appropriately contextualizing these statements and making a judgment on that.

Sarah Kendzior February 1, 2012 at 2:27 pm

A few points:

1) Xenophon’s argument is convincing and I agree that without the transcript we cannot judge whether there was probable cause for arrest. The ambiguity of the language in the affidavit has led to unfounded claims elsewhere in the media – for example, the Christian Science Monitor wrote an article claiming that the FBI listened to Muhtorov worry on the phone that the FBI was listening to him. This story has been widely republished as an example of a “dumb terrorist” who deserved to be caught. In fact, the affidavit never makes clear whom Muhtorov thinks is listening. It could have been fear of Uzbek security agents or other parties which prompted his concern.

2) People need to make a better distinction between Muhtorov’s prior activity as a human rights activist and his current interest in fundamentalist Islam and terrorist groups. This is not really directed at anyone on Registan, but I have seen comments/articles on other websites along the lines of “US government and UN helped radical jiadhi!” and “Is the US government selling out Uzbek dissidents?” Muhtorov appears to have abandoned his human rights activity after he came to the US. It looks as if in the last year or two he became deeply religious and interested in Islamic political movements. We need to allow for the fact that Muxtorov changed and not conflate Uzbek political dissidents (the vast majority of whom shun groups like IJU) with Uzbek groups or individuals who use the language of Islam to justify the desire for violent revolution.

3) On that note – and again, this is to the misinformed people posting on other sites who may drop by here after googling his name – the US was absolutely right to let Muhtorov into the country, as they were right to let in the other Uzbek refugees who fled Uzbekistan for Osh and then received UN asylum status. Over the past six years, I have spoken to many people who were in this situation and the dangers they faced were very real. I am proud as a US citizen that we gave asylum to Uzbeks who needed it. Muhtorov’s actions or predilections should not serve as an indicator that the Uzbeks let in during this time are some sort of threat.

AJK February 1, 2012 at 9:05 pm

Just a legal note that I’ll get into when my head’s a bit more above water with school:

The criminal complaint that we have is just one side of the story. Muhtorov still hasn’t gotten filed a response (he could quash the complaint for not having enough probable cause) or even gotten an attorney, or even gotten back to Denver from arrest in Chicago (I put on my journalist hat and called the district court. The hat doesn’t fit very well, though).

So basically, we can guess about what’s going on, but until the case moves on, there ain’t much else we can do.

Oh, and before any “It’s unfair that he doesn’t have a lawyer yet” goes on, it’s good to remember that the US criminal system is a bureaucracy, and bureaucracies take time. I have no idea what Muhtorov’s English level is, but if it’s low, that definitely doesn’t help matters.

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