From Midnight to Guntown

by Hailman, John

  I called Rich and Steve and a couple of other FBI agents, but everyone was on the Gulf Coast at firearm training. Rich risked his neck and told me to go ahead alone. Worried about what sort of bureaucratic nightmare this might get Rich into, I nevertheless headed for Nancy’s office. She introduced us and left us alone. Following Arab custom, which resembles ours in Mississippi, we exchanged pleasantries and talked about our childhoods for a good fifteen minutes. When I told him I grew up eating kibbe and baba ghanoush at the Syrian deli of my grandmother’s best friend and that my daughter was living with a respected Saudi family in Oxford, he relaxed a little and said we could talk business.

  I told Abdel I had an indictment drafted charging him with raising funds to support terrorism. He remained silent. I told him there was another alternative. I stressed that he had accepted for several years American hospitality and as our guest he was obligated to respect us and not to cause harm to Americans. He readily agreed, saying, “If you know Hamas, you know their charter vows never to use violence outside of Palestine. If you will recall, Hamas has never taken any violent action in America.” I’d never thought of it that way but had to agree—so far.

  He asked point-blank what we wanted. I told him he had valuable sources of information not available to us. We wanted him to warn us if anything was about to happen in America. He seemed not displeased. “What about Hamas? I am not saying I am associated with them myself, but as a Palestinian patriot, I totally share their views.” I decided to compromise for the moment. “We won’t ask you to violate your conscience. We ask you to follow your conscience by protecting us, your American hosts, among whom you have many friends.” He looked thoughtful. “This could put me and my family in great danger. Your subtle distinctions between groups will not impress them. To them, a traitor is a traitor.”

  I asked him who he could help us with. He responded quickly: “The Islamic Jihad. They kill indiscriminately. Many of them are former Hamas supporters who were expelled for being bad people.” I agreed that was a place to start. Then I addressed the immediate problem, his proposed move to New York. I played a card I knew I might regret later but thought would work. “You know the Jews control New York. There are many Zionists there. You will not feel at home there. In Mississippi, the Jews will understand you better.” He laughed. “You really are a lawyer. You think like a Jew.” We laughed together. Little did I know that later, after he left Oxford for good, Ashqar would choose as his lawyer a feisty, eccentric Jewish lawyer named Stanley Cohen. We shook hands. “There is no rush to move. I will talk to Asmaa. We will remain here until we can see if this arrangement will work.”

  The FBI, usually jealous of its jurisdiction, was this time flexible, allowing me to do the questioning of Ashqar as long as local FBI supervisor Rich Calcagno participated. Since Ashqar spoke almost entirely of esoteric Middle Eastern and Islamic issues, there was no way Rich could do the questioning. I, therefore, did most of the questioning, dictated a draft of a report of interview, which Rich would then reword in the approved FBI format. However unorthodox, it worked perfectly.

  One surprise for me was the required participation by a veteran member of Quantico’s behavioral unit. Before and after each meeting, an agent would brief us by phone on what the bureau wanted to know, how to broach subjects, what subjects to avoid, and similar issues. The pre-meeting telephone briefings usually lasted an hour, the post-meetings sometimes two hours. At first I was skeptical, but he knew his stuff and was not overly controlling. His positive feedback encouraged us when we felt like we were spinning our wheels.

  For our first meeting we had no idea what to expect. Rich rented the best suite at a motel. We had two agents on surveillance just in case Abdel had backup or was followed unbeknownst to him. There were no problems. He came alone as promised. The behaviorist thought Ashqar liked order, so we arranged to meet on a strict schedule, every Thursday afternoon at 2:00, always at the same motel, but always in a different room. We promised Ashqar the rooms would not be bugged and we would not secretly tape-record him, and we kept our word. We met every Thursday from September 17 through November 4, 1996, at which time FBI brass in Washington decided to send in a specialist in handling antiterrorism informants, which ended our role.

  In our first interview, we learned Ashqar was not leaving Oxford because he was unhappy there, but because his well-educated wife had been offered a teaching job at the wealthy Al-Massein mosque in Patterson, New Jersey. Ashqar himself had both legal and health problems. The previous winter, he had fallen on the ice and shattered his tailbone. Botched surgery had made it worse, and he was in substantial pain, often standing and pacing during our interviews, apologizing for doing so. Two hours would pass quickly, and at the end he joked that this was nothing like being interrogated in his homeland, by either side.

  Rich Calcagno sent off his report the next morning, which apparently caused quite a stir. On September 30, Rich and I found ourselves in Washington with not only Steve Taylor and his supervisor, Avery Rollins, and Jackson agent in charge Jim Frier but lead New York terrorism prosecutor Pat Fitzgerald (now the U.S. Attorney in Chicago) and two of his assistants plus the FBI and INS case agents from New York and Washington. We were joined by two prosecutors from the Main Justice terrorism section and its chief, Jim Reynolds, plus representatives of the secretive OIPR (Office of Intelligence Policy Review), the inner sanctum DOJ agency that approves the legality of covert counterintelligence operations. Presiding was veteran deputy assistant attorney general Mark Richard, a tough cancer survivor and one of the most respected professionals in DOJ history. Fortunately it was a big conference room. It was also a SCIF (Secure Compartmentalized Intelligence Facility), impervious to parabolic intercepts (known on the old Get Smart TV show as a “cone of silence” room).

  Apparently having an informant from inside Hamas was a unique development. Mark asked me to brief the group, which I did nonstop for an hour or more, after which there was a wide-ranging two-hour discussion of possibilities and pitfalls. We were unanimous in deciding to pursue Ashqar as far as we could as an informant. If that failed, we would sort out later who would prosecute him and where. DOJ’s keenest interest lay in Ashqar’s intimate ties to Abu Marzook, whom they considered the No. 1 active leader of Hamas.

  When the meeting concluded, we agreed for the same group to meet monthly at the same place to share information and coordinate our moves. As the meeting broke up, Washington FBI case agent Jim Casey called me aside and said, “There’s somebody you need to meet.” Jim had arranged for me to meet the legendary Robert “Bear” Bryant, perhaps the most respected figure of the entire bureau—with the possible exception of Deputy Director Weldon Kennedy, who had been our SAC in Jackson during Operation Pretense and was asked to stay on well past retirement age by FBI Director Louis Freeh. Bryant was perhaps the most legendary FBI agent since J. Edgar Hoover himself. A native of Arkansas, he allegedly got his nickname before the Alabama coach because of his personal ferocity in football scrimmages. He was known for biting his opponents on the leg during scrambles for loose balls. Bryant gave us his private number and offered us complete help, whenever and wherever we needed it.

  FBI undercover operations always have code names and Avery Rollins chose to call this one “Pale Horse” from the biblical Book of Revelations, later used by Clint Eastwood for his movie Pale Horse, Pale Rider. But Ashqar was in no condition to ride. He could barely walk. We had the bureau contact friends at the Mayo Clinic for further evaluation and reconstructive surgery if needed. Ashqar was grateful but fearful. For the first time, I saw that he realized he might be getting in too deep. He was especially concerned about his wife and her two sisters, who were also living in the United States and could be in danger if his cooperation became known.

  We arranged a different meeting with Ashqar, this time with his wife and her friend Nancy Rogers present. SAC Jim Frier presided, explaining everything from financial incentives, witness protection, and relocation with medical c
are. Asmaa Ashqar, an usually independent Muslim wife despite her nun-like demeanor, explained to us about fatwas of death, Islamic religious commands like the one Ayatollah Khomeini put on writer Salman Rushdie. She said both she and Abdel were under fatwas by the Grand Mufti of Jerusalem never to cooperate with Israelis or harm innocent Muslims. We asked whether “innocent” included terrorists inside the United States. She said they were not protected, and she and Abdel would help us with what we had asked for.

  After Mrs. Ashqar left, to cement the deal I outlined for Abdel some of our proof, even showing him the first page of a draft RICO indictment with his name at the top and quotes from the transcripts of his call to “Constantine” ordering two rogue Hamas members murdered, which Mississippi jurors would be able to hear in English in his own unmistakable accent. He smiled at this with a twinkling expression in his deep eyes I hadn’t seen before. There was clearly another Ashqar I’d not known. I mentioned another taped conversation he’d had in Arabic with an operative named “Abu Hammam,” whom Ashqar had called in Syria to confirm the successful hit. In this conversation (which I did not mention had been translated for us by the Israelis), he confirmed that one of the men, named Ibrahim, had been caused to “disappear” in Gaza.

  After that meeting, things went well, Ashqar became so relaxed he began telling us jokes from inside his culture. Many focused on the alleged lack of intelligence of Egyptian president Hosni Mubarak. They were reminiscent of ethnic jokes prevalent in the U.S. when I was a teenager growing up in the 1950s. Ashqar’s favorites were rural humor like those you still hear about sex with farm animals in the remote parts of our district. His versions usually involved the mad leader of Libya, Muammar Gaddafi, and his love of camels. Then in the first week in November, just as we were really beginning to get good information, Ashqar turned cool and aloof. I asked him in a roundabout way if someone had contacted him or threatened him. As always, when answering a question that would have caused him to lie, which he had sworn not to do, he would lower his eyes and remain silent till Rich or I changed the subject. This happened just as he had been outlining valuable details on the roles and conflicts among the varied Palestinian factions.

  Coincidentally, this was the week some FBI bureaucrat decided it was not kosher, if that’s the word, to have an AUSA in the middle of such sensitive terrorist debriefings, especially where the only FBI agent present was a novice in Middle Eastern affairs. Rich, with his dark Italian good looks, could have passed for an Arab, and had done some great and scary international work in Colombia, but the bureau wanted somebody with official training who knew Arab lingo. They chose John Atkins, an Ole Miss graduate and grandson of former Mississippi governor Ross Barnett. A smart, smooth guy, John had handled at least one other Palestinian informant and was eager to come back to Oxford. But the bureau never gave him a fair chance. They flew him to Oxford on such short notice that Rich and I had no chance to brief him or Ashqar properly on this dramatic change. He’d read Rich’s reports, but that was about it. We were ordered to meet Ashqar on an hour’s notice at the motel, introduce John to him cold turkey, then excuse ourselves without any explanation, violating every conceivable tenet of Arab etiquette and honor, not to mention common sense.

  Ashqar looked shocked and betrayed as we expected. Since I was out of the loop and not permitted to work with John or help him, the next thing I heard was that Ashqar had abruptly moved to New York to work at a mosque. As soon as he got there, the New York team served him with a grand jury subpoena and an immunity order requiring him to testify against Hamas. Perhaps that was the secret purpose of the switch all along. New York now had him, one way or the other. He had to have felt totally betrayed, which he was. He refused to talk and was jailed for months for civil contempt. As recounted in great detail in the New York and Washington press, Ashqar went on a hunger strike. When doctors testified his heart was affected and he was near death, a sympathetic judge ordered him released on house arrest. He and Asmaa moved to the suburbs of Washington, and he got a job teaching at Howard University, where I had once put on seminars myself as a stand-in for my former mentor and law partner Gilbert Hahn.

  In his last year at Ole Miss, a benevolent administration awarded him a Ph.D. in business administration, despite protests from agent Steve Taylor, who contended wiretaps revealed he’d purchased his dissertation off the Internet from a source in Michigan for $600. That allegation may not have been true, but from then on Abdel was “Dr. Ashqar,” to his supporters, a professional martyr for the Palestinian cause.

  After several years of trips to and from federal jails for contempt, Dr. Ashqar finally faced trial, not in New York, but in Chicago. Pat Fitzgerald, the New York AUSA, had become Patrick Fitzgerald, U.S. Attorney for Chicago, later famous for his prosecution of Governor Rod Blagojevich and others. In 2003, his targets were Ashqar, his paymaster Mousa Abu Marzook, and an old Chicago associate named Salah. Ashqar and Salah had exchanged numerous wire transfers of cash, thus giving Chicago jurisdiction to prosecute the original RICO charges I’d drafted nearly a decade earlier.

  By this time, Avery Rollins and Jim Frier had retired, and Rich Calcagno had moved to Knoxville to be near the family of his wife, also an FBI agent. Steve Taylor, suffering from severe burnout from his years chasing Ashqar and fighting the bureaucracy, resigned from the bureau. One day subpoenas for the Chicago Ashqar trial arrived for Avery and Jim Frier and me, issued not by the prosecution but by the defense. They also asked us where they could find Steve Taylor to serve him as an adverse witness. We had no idea. He had disappeared. DOJ insisted that I be represented by counsel at trial because so much of the evidence was then either national security information or classified top secret. They let me choose my attorney, so I chose AUSA Tom Dawson. I owed him a trip ever since 1979, when I went to Geneva in his place in a bank fraud case, not to mention his taking over the Parchman warden beating case so I could go to Paris for training.

  His payback was not bad. The defense put us up at the elegant Palmer House Hotel, where I had stayed with my parents as a child. We were in walking distance of the courthouse. Like most federal witnesses, we sat for days in stuffy windowless rooms, swapping war stories while the prosecution finished its case. It worried me that no one from Chicago had interviewed any of us, not even Rich Calcagno, about our Mississippi investigation, since nearly all their evidence came from that case. Pat Fitzgerald greeted us warmly, however, and said one of his best and most experienced assistants had the case well in hand. When I met him the next day, I thought the AUSA looked pale and exhausted from the long trial. Nancy Rogers had been kept in a separate hotel and a separate witness room. Under the rules we were not allowed to compare our testimony, and it was probably just as well; the temptation to talk with her would have been too great. She testified as a witness to Ashqar’s good character. None of the FBI agents was ever called. The two Chicago FBI agents assigned to us were great, good-humored, generous, and confident. They seemed to feel better about the case than the prosecutors, which was encouraging. But then they were not in the courtroom watching the jurors like the prosecutors were.

  One morning a U.S. Marshal came to take me to the courtroom. When he ushered me in, I saw that the judge was Amy St. Eve. Tom Dawson had worked with her for independent counsel Ken Starr on the Bill Clinton investigation and said she was said to be a strong and independent judge who brooked no nonsense. She told me she had dismissed the jury, so the defense could question me in open court out of their presence to decide if they wanted to put me before the jury as their witness.

  The first thing that struck me was how calm and confident Ashqar’s attorneys were. Seeing Abdel, I asked the judge’s permission to greet him, which she granted. He smiled and shook my hand like a long-lost friend. “It is so cold here. I wish I were back in Mississippi, even at that hotel.” I badly wanted to talk more with him and he with me, but it was definitely not a social occasion. The lead defense attorney, a black Virginian named Bill Moffitt, had a smo
oth confident demeanor. He took me through my history with Ashqar, concluding on my opinion of his character. I was torn. I wanted to help my fellow prosecutors convict Ashqar because of how he had taken advantage of our country and because he was involved in financing violence. At the same time, I respected him as a man of principle who fought for what he believed to be right. Unlike so many leaders in the Middle East, he seemed to have no real desire for power (belied later by a crazy episode when he announced from prison he would run against Yasser Arafat for President of Palestine). Given the choice, he just wanted to go home.

  Then defense counsel asked the question I had hoped I could hold back and spring on them for the first time before the jury: “Did you ever hear Dr. Ashqar speak in English to a man named Constantine?” I was caught. I told him of the conversation, even of accent studies that concluded that Constantine, a Muslim militant who did not know Arabic, was likely a Bosnian. My answer of course settled it. The defense announced, “We will not be calling Mr. Hailman.”

  Tom Dawson and I flew out of Chicago the next morning. From the Chicago papers and the internet we learned that the jury had acquitted Ashqar of the RICO and all other serious charges except criminal contempt of court for refusing to testify against his comrades in Hamas. Judge St. Eve, clearly not agreeing with the jury verdict, applied the federal sentencing guidelines strictly, in light of all the evidence presented, and sentenced Ashqar to eleven years in federal prison just for contempt, which she had the power to do.

  While he served his time, Asmaa’s younger sister, the one who lived in New Orleans and whom Asmaa had stayed in the U.S. to protect was murdered. Ashqar and Asmaa, childless, adopted her little boy. It was a bittersweet conclusion to a curious and unsettling case. Hamas now rules Gaza, while Ashqar sits in prison.