Significant Holes in U.S. Legal Case Against Alleged Iran Plotter

By Marcy Wheeler

The criminal complaint against Manssor Arbabsiar, who is said to have targeted the Saudi Ambassador to the U.S. for assassination on behalf of the Iranian government, has several conspicuous gaps in its most pivotal and controversial arguments

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Courtroom sketch of Manssor Arbabsiar / Reuters

In the wake of the Obama Administration's announcement that an Iranian-American used car salesman had set up a plot to kill the Saudi Ambassador to the U.S., a number of Iran and intelligence experts have raised questions about the plausibility of the alleged Iranian plot.

But few have commented on problems in the legal case presented against the used car salesman, Manssor Arbabsiar, and his alleged co-conspirators from Iran's Quds Force, a branch of its special forces. There is a handful of what appear to be holes in the complaint. Though individually they are small, taken together they raise difficult questions about the government's case. The apparent holes also seem to match up with some of the same concerns raised by skeptical Iran analysts, such as Arbabsiar's rationale in confessing and the extent of his connection to the Quds Force.

The government claims that Arbabsiar sought out someone he thought was a Mexican drug cartel member in May; he was actually a Drug Enforcement Agency confidential informant. Over a series of meetings, the government alleges, Arbabsiar arranged to forward $100,000 to the informant as down payment for the attack, promised $1.5 million more, and agreed that the informant should kill Saudi Ambassador Adel al-Jubeir with a bomb blast at a DC restaurant, one that would possibly be full of civilians and U.S. members of Congress.

In the complaint against Arbabsiar, the government has described four pieces of evidence to support its allegations (it undoubtedly has more intelligence that it doesn't describe in the complaint):

  • Taped conversations and phone calls between the informant and Arbabsiar
  • Details about a $100,000 bank transfer described as a down payment for the assassination
  • Taped conversations Arbabsiar had with his alleged co-conspirator, Quds Force member Gholam Shakuri, while Arbabsiar was in FBI custody
  • A confession Arbabsiar made after he was arrested on September 29

Two of the conversations between Arbabsiar and the informant, on July 14 and July 17, include very damning comments. Arbabsiar tells the informant, "he wants you to kill this guy" and goes on to say that it is "no big deal" if the informant kills hundreds of civilians and some Senators in the course of the assassination.

But there is a problem with each of these four key pieces of evidence.

Take the recorded calls between Arbabsiar and the informant. Whenever the government uses confidential informants, it is a good idea to pay attention to which conversations get taped and which don't (in one terror case in Oregon, for example, the FBI had a recorder malfunction on precisely the day when, their informant claims, the accused person first agreed to participate in a terror plot). If no tape is made, then the only evidence to the substance of a conversation comes from someone paid by the government to produce evidence of criminal activity.

In this case, the complaint first describes the informant taping conversations with Arbabsiar on July 14, 2011, the first of the two really damning conversations. It admits that the informant taped neither the initial meeting between them on May 24 nor a later series of meetings in June and July. This means, among other things, that the tapes do not include an account of how the plot was first initiated and how it evolved from the kidnapping plot, which Arbabsiar said in his confession that he was he first instructed to set up, to an assassination. Who first raised the idea of using explosives in the assassination? Arbabsiar is charged with intent to use weapons of mass destruction -- in this case, the bombing. But with these key conversations never recorded, it's difficult or impossible to prove who first suggested the most damning details that legally turned a kidnapping plot into a terrorism plot.

The taped conversations start after the $100,000 down payment, which government sources have told reporters was the first convincing piece of evidence in this case, got transferred to a middleman. So the government doesn't provide quoted conversations describing what agreement the parties had about that down payment.

In short, there were a number of critical conversations the government chose not to record (or at least, not to have the informant record). Particularly given the complaint's revelation that a number of other crimes were discussed, and reports that the parties also discussed an opium deal, the government's choice not to record these earlier conversations raises significant questions about what Arbabsiar set out to do and what the down payment represented.

The details provided about the $100,000 in the complaint also do not implicate Quds Force as strongly as they might. The complaint describes an unnamed person calling Arbabsiar to tell him the money would be transferred to "Individual #1." And it describes Arbabsiar telling the informant that Individual #1 had received the money the morning before the first taped July 14 conversation. Then, it describes the money being sent from two different "foreign entities" through a Manhattan bank into an FBI account. The complaint doesn't even specify that these two foreign entities were Iranian, much less tied to Quds Force.

Furthermore, the complaint doesn't describe who Individual #1 is, though the way that the complaint is written suggests that he or she was not a member of Quds Force: three Quds Force members are described as "Iranian Officials" in the complaint and Quds Force Commander Qasem Soleimani is named explicitly. More curiously, Individual #1, who allegedly served as middleman for the down payment on the planned assassination, was neither charged for his role nor was he among the five people sanctioned for this operation by the Treasury Department. What the complaint describes about this key piece of evidence, in other words, is money being transferred from someone not even charged in this case to the FBI. But if the plot began with the Quds Force hatching it in Iran and extended to Arbabsiar acting on their behalf in the U.S., and if the U.S. government appears to be either charging or sanctioning everyone involved, why would this middleman, Individual #1, go unnamed and untouched?

Two other pieces of evidence described in the complaint do tie the transfer to Arbabsiar's alleged Quds Force collaborators. First, a footnote states that Arbabsiar confessed that Individual #1 told him the money came from Gholam Shakuri. The criminal complaint named Shakuri, who is at large and believed to be in Iran, as the Iranian official working as Arbabsiar's case officer of sorts. Second, the taped conversations between Arbabsiar and Shakuri show that Shakuri was aware money had been transferred.

But there are two significant problems with those conversations between Arbabsiar and Shakuri. First, they're all in code, so Shakuri never describes the assassination directly. They appear to use two codes -- "Chevrolet" and cars generally, and "the building." While Arbabsiar confessed "Chevrolet" signified the assassination, the complaint mentions no such confession explaining the meaning of the "building" code. Furthermore, Shakuri claims someone -- the name is inaudible -- has "brought [him] another car." If car is code for assassination, then who got killed or targeted for assassination?

Shakuri also makes an odd reference to paying $50,000 or $100,000 to someone if the informant (whom Arbabsiar was attempting to hire) doesn't carry out the agreed job. "You guaranteed this yourself ... of course, if we give it, we'll give it to you. Okay? If he gives it, fine; if not we must provide the 100 [or] 50. Tell him [unintelligible]." Perhaps Shakuri was telling Arbabsiar that, if the informant refused to carry out the job without more money, they'll have to pay it. But there are other possibilities as well -- perhaps Shakuri believed they'd have to pay back the down payment if the crime never got committed. Ultimately, though the government tried, they didn't get Shakuri to send any more money.

All of these problems might be less troublesome if the terms of Arbabsiar's cooperation were explained. Arbabsiar did confess he tried to set up the assassination at the direction of the Quds Force, but under what circumstances?

But we don't yet understand why a man arrested -- purportedly for an assassination attempt -- waived his right to a lawyer and within hours started to give the government all the evidence it needed to fill in any gaps in their case. His cooperation is all the more curious given that four of the five charges against him (the fifth is using interstate commerce to arrange a murder for hire) are conspiracy charges that probably couldn't have been charged before Arbabsiar implicated Shakuri. The government surely could have charged him with other things, such as wire fraud, without the conspiracy charges. So why would Arbabsiar provide the evidence for four new charges against him that could put himself in prison for life?

One document that might explain Arbabsiar's motives for cooperating is the original complaint in this case. The document that's been publicly released is actually an amended complaint written 12 days after his arrest, presumably written to incorporate Shakuri in the charges based on Arbabsiar's cooperation. But in a rather unusual move, the first complaint against Arbabsiar remains sealed -- meaning we don't know when the government first charged him or for what -- with the approval of the Chief Judge in Manhattan, possibly in an entirely different docket (the amended complaint is entry number 1 in this docket). Thus, it is possible that Arbabsiar was originally charged for a completely unrelated crime -- perhaps the opium deal. And it is possible Arbabsiar was charged much earlier than his arrest on September 29. As a result, we don't know what kind of incentives the government might have offered Arbabsiar for his testimony.

Most of the problems with the legal case against Arbabsiar could be fixed. The government could -- and should -- unseal the original complaint against Arbabsiar. The government could describe the complete chain of transfer from Quds Force custody through Individual #1 to the FBI account. And while the government implies it doesn't have recordings of these conversations, it could at least provide explanations of the earlier discussions between Arbabsiar and the informant that led to the $100,000 down payment and that led a kidnapping plot to evolve into an assassination plot. In addition, it could provide more background that distinguishes this assassination plot from the several other plans discussed, including the opium deal.

But until the government does those things, it has offered not just a plot that appears implausible to a number of Iran experts, but one with significant weaknesses in the legal case.

This article available online at:

http://www.theatlantic.com/international/archive/2011/10/significant-holes-in-us-legal-case-against-alleged-iran-plotter/246780/