The government should keep its promises to Haji Noorzai.

The law, lawyers, and the court.
Dec. 12 2007 1:05 PM

The Stinger Missile Sting

Why the government should keep its promises to bad guys like Haji Noorzai.

Haji Bashaar Noorzai. Click image to expand.
Haji Bashaar Noorzai

By all appearances, Haji Bashaar Noorzai is a scoundrel. A shadowy figure with ties to the Taliban, Noorzai is heavily involved in international heroin trafficking, according to a federal indictment that is pending against him in New York. But he is a tribal rogue whom U.S. terrorism fighters have relied on, while looking away from his darker side as a dope dealer. For years, the relationship was mutually beneficial—Noorzai helped U.S. authorities uncover huge numbers of terrorist weapons, including Stinger missiles, and in return he got to ply his drug trade with impunity.

In 2004, it appears, Noorzai was invited to the United States for further briefing on his undercover work by two freelance "contractors" associated with the FBI, who told Noorzai they were FBI and Defense Department agents. He was assured that he would not be arrested, and could return home whenever he liked. The contractors introduced Noorzai to actual federal drug agents, who warmly welcomed him. He was lodged in a fancy New York hotel and debriefed for 10 days. And then he was arrested for drug trafficking. For more than two years since then, he has sat in jail.

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If you consider only Noorzai's alleged conduct, which includes a conspiracy to distribute hundreds of kilograms of heroin, that's where he probably belongs. But what about the conduct of the United States—luring someone to our shores who was cooperating in the fight against terrorism with our representatives, on a patently false promise that "you won't be arrested"? When Noorzai's lawyer, Ivan S. Fisher, filed papers protesting this breaking of promises, one might have expected prosecutors to respond, "Noorzai is demented. He came here for his own reasons. Make no mistake, no such promise was ever made!"

The government couldn't say that, however. Some of the promises are recorded on tape, and some actually occurred after the indictment (which was filed before Noorzai was arrested and learned of it). So instead, the government has asked the federal district court to "assume" that Noorzai had productive meetings in Afghanistan with the contractors, former law enforcement personnel who were working for the United States in Afghanistan and who said they were FBI and Department of Defense agents, and that they promised him he would not be arrested. No matter, the government says, because these freelancers had no "legal authority" to make such promises. The government thus has communicated in court that contractors employed on behalf of the federal government to develop an informant can make any promises in order to gain assistance—without obligating the government to keep those promises.

And so Noorzai is out of luck. Before you decide that as a drug dealer, he probably had it coming, stop to consider the message this sends: When U.S. representatives give you their word, the Justice Department can break it. If you were a potential informant abroad who had your own shady past and you found out what happened to Noorzai, how likely would you be to cooperate?

Legally speaking, the government may have a winning argument. Prosecutors probably need only establish that the promises of safe passage to Noorzai were made without the express or implicit authorization of the Justice Department. It will be hard for Noorzai's lawyer to establish that responsible members of the Justice Department knew about the contractors' assurances. Nevertheless, internationally and surely within this circle of intrigue, it will likely become known that the U.S. government is willing to hide behind a legal facade that renders the promises of its purported representatives worthless.

If national security demands that we recruit men like Noorzai to aid us, then our government needs to be trusted by them. Without that trust, the government's war on terror will be headed down a far more dangerous road.

Joel Cohen is a partner at Stroock & Stroock & Lavan LLP in New York and an adjunct professor of professional responsibility at Fordham Law School.

Bennett L. Gershman is a professor at Pace University School of Law and the author of Prosecutorial Misconduct.

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