FBI Authorized Negotiations With ISIS in Bid to Free Peter Kassig

In what may be one of the most fascinating articles I've read this year, the Guardian (writers Shiv Malik, Ali Younes, Spencer Ackerman and Mustafa Khalili )reports play by play details of an attempt by the FBI, working with prominent activist New York lawyer Stanley Cohen, to free Peter Kassig. The FBI authorized and paid for Cohen and a translator to travel to Kuwait and Jordan to negotiate with ISIS for Kassig's release. There would be no ransom or prisoner release, but Cohen had come up with other terms ISIS might approve of.

At the time of the rescue effort, Cohen was awaiting sentencing on criminal tax charges, having plead guilty in April, 2014 to two indictments, one in the Northern District of NY and one in the Southern District. The Southern District case was transferred to the Northern District for sentencing. His plea agreement called for an agreed upon sentence of 18 months. A few weeks after his return from the rescue effort, he was sentenced to 18 months as agreed, and is scheduled to report to prison on January 6. A few days ago, his request for a delay was denied. [More...]

According to Cohen, the irony of using an indicted defendant who represented accused terrorists to conduct negotiations with ISIS was not overlooked by the FBI, DOJ and State Department.

‘We’re sending a Jewish anarchist lawyer who represents Hamas to the Middle East to negotiate with Isis and al-Qaida over Kassig?’,” Cohen says. “And apparently some serious true believer [in the State Department or DOJ] responded, ‘Who the f*ck else would we send?’”

Cohen says he had no connections with ISIS. To get to ISIS, he convinced one of his al Qaida connections to set up a meeting in Kuwait with a prominent religious scholar named Abu Muhammad al-Maqdisi, who hated ISIS. al-Maqdisi was the former teacher of ISIS' chief scholar, Turki al-Binali. The two had recently had a major public falling out over ISIS's claim to the Caliphate. The idea was for them to patch things up and for ISIS to release Kassig as a gesture of good will, which could open the door to a future reconciliation between al Qaida and ISIS. al-Maqdisi made some refinements to the plan:

When Maqdisi laid out his strategy to free Kassig on 21 October, it was much more expansive than Cohen had expected: the deal had to be presented as part of a much bigger picture, Maqdisi believed, in order to win over Binali. First, supporters on each side of the divide between al-Qaida and Isis would agree to stop denouncing each other as apostates and infidels. Then, if Isis agreed to stop taking hostages altogether, Maqdisi and the cohort of older al-Qaida religious scholars – much the same group Isis had tried to win over with offers of cash – would tone down their hostile rhetoric, potentially opening the door to a complete reconciliation between the two terrorist groups. As part of these larger agreements, Maqdisi would insist on Kassig’s freedom. It would effectively be bundled into the negotiations as a gesture of good faith.

I won't recap the whole article, you really should read it for yourselves. As I said, it's a fascinating account.

Cohen blames the FBI and US for the rescue mission's failure. Why? He says despite assurances to the contrary from the FBI, al-Maqdisi was arrested and detained in Jordan during the negotiations, which torpedoed the deal. After the arrest, Cohen says the F.B.I. told him the U.S. had been unable to get Jordan to release him.

Cohen is still angry about the way the negotiations ran aground. He wants to know why the protocol he’d established was violated by the Jordanians, and why the US government failed to intervene at a crucial moment to get Maqdisi released from custody – why the US wasn’t able to get Jordan and Kuwait to cooperate to save an American citizen.

After reading the article, I had some questions about how the Government was able to use a defendant who had pleaded guilty and was awaiting sentencing in federal court to travel to the Middle East on its behalf. Was permission from the Judge needed or obtained? I then went and read through the dockets and pleadings in Cohen's cases in the Southern and Northern District of New York.

First, permission wasn't needed. Cohen was on an unsecured bond which did not require him to surrender his passport and did not restrict foreign travel, even after his plea. The Judge said, and the Government agreed, there was no indication he was a flight risk.

Next question: Cohen left for Kuwait on October 13. Since Cohen's sentencing had been extended in September at his request until October 21, an additional extension would be needed. One request was made on October 20 and another was made on October 29. Was the judge told why?

On October 20, the Court extended Cohen's sentencing by "mutual request" until October 31. The reason given was that the Government needed more time to study recently filed letters submitted on Cohen's behalf for sentencing.

On October 29, 2014, while Cohen was still in Kuwait, the Government wrote a letter to the judge asking for another extension. The reason given was again that it needed additional time to study the sentencing letters. The AUSA tells the judge in the letter (D.E. #95, Case No. 12-cr-316 (NDNY):

On October 20, 2014, the Court granted a joint application by the government and defense counsel to adjourn sentencing until October 31, 2014 to review recent filings of letters submitted in support of the defendant. Due to the volume of these materials and the need for redaction of certain information within those letters, the government respectfully requests, with consent of defense counsel to adjourn the sentencing until November 23 or 24. The government believes this will allow sufficient time to review the sentencing materials.

The request was granted and Cohen's sentencing was set for November 21. There's no indication the Judge was made aware of the mission or that at the time these last extensions were requested, that Cohen was in the Middle East and would not be done by the sentencing date.

While notice was not required for the travel since Cohen's travel on bond was not restricted, there is a duty of candor with the court when filing motions. The judge was told the reason for the continuance request was that the Government needed more time to study letters, not that Cohen was out of the country in the midst of an important rescue mission. Does this raise any issues about the Government's obligation for "candor with the Court?"

On October 26, Cohen and his translator had dinner with al Maqdisi at the Four Seasons in Jordan. On 27 October, they returned to Kuwait. al Maqdisi gets arrested in Jordan, for having communications with ISIS over the internet. On October 31, Cohen flew home.

On November 16, 5 days before his sentencing, Cohen tells the Guardian, "he had his bags packed and ready by the door when he awoke to the email that he had been dreading." Kassig had been killed. The article doesn't say where Cohen was planning to go had Kassig not been killed. Or whether he would be back by his sentencing date of November 21.

Cohen's sentencing proceeded as scheduled on November 21. He was sentenced to the agreed upon 18 months. He wasn't even assured that his bond would continue after sentencing and he would be permitted to voluntarily surrender to the designated prison. The judge declined his request for an advance ruling on that, saying he would find out at sentencing.

What if Kassig's rescue mission had been successful? Would the Government have rewarded him by requesting a non-prison sentence instead of 18 months? Did that factor into Cohen's motivation for undertaking the mission? Unknown. And possibly unlikely, as according to NBC News, Cohen was angrily tweeting about his sentence from Kuwait.

Cohen clearly is getting no benefit from having attempted the rescue mission. Just the other day, the following entry appeared on the docket of his criminal case:

12/17/2014 103 TEXT ORDER - The Defendants motion to extend the self-reporting date is denied. The defendant and counsel will be notified by certified letter of the designated facility by the U.S. Marshal's Service before the January 6, 2015, reporting date. If Defendant does not receive notification, then he shall self-surrender to the U.S. Marshal's Office, 100 South Clinton Street, 10th Floor, Syracuse, New York, by 2:00 p.m. on January 6, 2015. Endorsed by Senior Judge Norman A. Mordue on 12/17/14. (jlm) (Entered: 12/17/2014)

A few nights ago, Cohen made an appearance at an East Village event:

As for the charges that are sending him away, he said, “To those who believe it’s for taxes, I’ll sell you a bridge and Israel is about Judaism. I think I’ve about had it with this sty, and I’m moving overseas,” he said of the U.S., in general.

He also hasn't held back on his view of federal judges:

We have lost judge after judge that was willing to hear counterarguments. These judges have been replaced with former Wall Street lawyers, political hacks, those who are owed political favors or those who benefit from political patronage. These [newer] judges played the game. They sold their souls years ago. And justice is not really their concern. You go up against them and you hear the echo chamber of the state.”

What does this whole affair show? Not only is the U.S. willing to negotiate with ISIS and al Qaida to save the life of one American citizen, but it is willing to get in bed with one of its strongest critics and a convicted law-breaker it spent years chasing to do so. These are interesting times.

As for Cohen, his law license has been revoked, but he may be eligible to apply to have it reinstated when he has finished his sentence. The only beneficiaries of his sentence are likely to be the fellow inmates he will assist in their pro se pleadings while serving it.

Also, Cohen's troubles won't end with his sentence. As part of his sentence, he has to file returns for the five or six years he failed to file, and pay the federal and state taxes he owes, with interest, on the total amount.

Is Cohen a hero? Is the Government extracting too many pounds of flesh from him? Or is this a case of his making his own bed and now having to lay in it? I'll be interested to read your opinions.

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  • Display: Sort:
    You know it's bad in the region (5.00 / 1) (#8)
    by Jack203 on Fri Dec 19, 2014 at 09:33:53 PM EST
    when Al Qaeda is coming off as the level headed moderates.

    Sure. Get ISIS and AQ to unify. (none / 0) (#1)
    by scribe on Fri Dec 19, 2014 at 05:07:28 PM EST
    Sounds like a great idea.  What could possibly go wrong with that?

    This scheme sounds more like a way for the USG to use Cohen to cause the people he was talking with to expose themselves, so their communications could be intercepted and their network defined and, as shown by Jordan's conduct, arrested when convenient.  In other words, to get the targets to expose themselves.

    Kassig was a convenient pawn and its likely the USG never expected to get him back alive.

    Sick. (none / 0) (#3)
    by lentinel on Fri Dec 19, 2014 at 05:55:07 PM EST
    Kassig was a convenient pawn and its likely the USG never expected to get him back alive.

    It is likely that the USG never really cared two figs about Kassig.

    Very reassuring for American citizens everywhere.


    Unbelievable! (none / 0) (#2)
    by lentinel on Fri Dec 19, 2014 at 05:15:31 PM EST
    `We're sending a Jewish anarchist lawyer who represents Hamas to the Middle East to negotiate with Isis and al-Qaida over Kassig?'," Cohen says. "And apparently some serious true believer [in the State Department or DOJ] responded, `Who the f*ck else would we send?'"

    This article by Jeralyn is the stuff of Academy Award film scripts.

    And to think this is actually going on.

    And the FBI being active in trying to save a person's life, and sabotaging that effort... both inspiring and devastating.

    I have no opinion about whether Cohen is a hero.
    But I believe that his statements show an insightful mind.

    I especially identified with this:

    As for the charges that are sending him away, he said, "To those who believe it's for taxes, I'll sell you a bridge and Israel is about Judaism. I think I've about had it with this sty, and I'm moving overseas," he said of the U.S., in general.

    he'll pay back taxes, interest and civil fraud (none / 0) (#4)
    by cpinva on Fri Dec 19, 2014 at 06:45:25 PM EST
    penalties, plus interest. by the time he's done, it will have cost him (besides his prison time) roughly two or three times what he would have owed, had he filed the returns and paid the taxes on a timely basis. they must have really, really, really wanted to get this guy, for him to actually be sentenced to jail time for tax fraud. he may claim that it isn't for criminal tax fraud, but with only an 18 month sentence, there are few other things (and none of them particularly serious) that it could be for.

    I wouldn't identify with him too much, and i'll take him up on his offer, since the evidence says he's full of it.

    on penalties (none / 0) (#5)
    by Jeralyn on Fri Dec 19, 2014 at 07:56:34 PM EST
    at his change of plea hearing in the Southern District, according to the transcript, he only had to pay taxes and interest, not penalties. That was part of the agreement and put on the record. From the transcript:

    [His lawyer says] ...The restitution, it's my understanding, will be limited to the amount owed and the interest but would not include penalties.
    AUSA: Correct, your Honor.
    THE COURT: For the tax years 2005 through 2010
    AUSA: Correct, your Honor.
    THE COURT: All right. Very good.

    But his Sentencing Judgment orders him to pay "taxes, interests and penalties." I wonder whether that was an oversight. On the conditions of supervision (after release from prison) the judgment reads:

    The defendant shall pay all taxes, penalties, and interest due the Internal Revenue Service and the New York State Department of Taxation and Finance, and you shall provide financial information to the Internal Revenue Service and the New York State Department of Taxation and Finance, as requested.

    He pleaded to one felony in the Northern District that carries a 3 year maximum sentence --obstructing or impeding the IRS in his criminal investigation (mostly by not keeping adequate records but also by limiting his cash transactions to under $10k to avoid having to file the required reports and having his clients pay his creditors directly). He pleaded to two misdemeanor counts of failing to file a return (2006 and 2007) in the Southern District. He got 18 months on the felony and 1 year on each misdemeanor, with the misdemeanors running concurrent to the felony, so the total is 18 months.

    He was also ordered to pay the costs of his prosecution. He has said he spent more than $600,00 on his lawyers and $100,000 on accounting fees. (Had he gone to trial, the fees would have been much higher.)

    So yes, it would have been much cheaper to pay the taxes. He did pay some taxes. He filed extension requests and made some payments, he just never filed the final returns.


    A lawyer who chooses to specialize (5.00 / 1) (#6)
    by Peter G on Fri Dec 19, 2014 at 08:20:12 PM EST
    in representing hated clients, such as al-Qaeda and Hamas associates, cannot afford to expose him/herself in this way, such as by not filing tax returns.  Lawyers (and accountants) will be prosecuted for tax violations that would be treated as civil if committed by others.

    Even if the "restitution" agreement (5.00 / 2) (#7)
    by Peter G on Fri Dec 19, 2014 at 08:34:22 PM EST
    in the criminal case did not contemplate a judicial order to pay an amount that included a calculation of the civil penalties, that does not prevent the IRS from assessing penalties, unless Cohen was able to make a "global agreement" that resolved his civil tax liabilities, which is possible but not that common in criminal tax cases. In fact, restitution is not an authorized component of a criminal sentence for a violation of a title 26 (tax) offense. See 18 USC 3663A(c). However, it is permissible to require, as a condition of supervised release (and entirely apart from any "restitution"), payment of whatever civil tax liabilities (including penalties) are ultimately assessed.

    Everything Peter says is correct (none / 0) (#9)
    by Reconstructionist on Sat Dec 20, 2014 at 07:50:49 AM EST
      I will note, that when feasible, it is helpful for your  client, before criminal sentencing,  to have already come to an agreement with the IRS on the monetary liability and either made payment in full or at least some payment and an agreement on the schedule of remaining payments. In my experience that's an option in relatively simple cases,and it does put you in a better posture at sentencing for a variance or other favorable consideration.

       I also had one case which for reasons far too convoluted and complicated to explain here, I determined that it would be more to my client's benefit to have a restitution judgment within the criminal case and we ended up reaching an agreement that he would plead to an information charging a Title 18 offense (§ 371, conspiracy) and the indictment charging Title 26 offenses dismissed.