Viewpoints: Judge should end injustice against a pair of patriots - The Buffalo News

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Viewpoints: Judge should end injustice against a pair of patriots

By Donn Esmonde

Special to The News

It’s not too late for justice.

A federal judge can right a wrong, end a prosecution that looks to me more like a persecution and clear the names of two well-intentioned local patriots. U.S. District Judge Lawrence Vilardo should grant the defense motion to dismiss the remaining fraud convictions against Steve Jabar and Debbie Bowers, end their needless eight-year ordeal and free them to resume lives marked by good deeds.

It was precisely such a good deed that, ironically, led to the nightmare of federal charges. In the tumultuous wake of the 2003 Iraq War, Jabar and Bowers – in coordination with freedom-fighters in Baghdad – obtained a $350,000 United Nations grant to build a pro-democracy, women’s-rights radio station in Iraq.

The temporary diversion of $65,000 – even though the grant money was later not just replaced, but enhanced by the defendants’ fundraising – was the crux of the government’s perplexing charges. Prosecutors took an instance of sloppy bookkeeping and made a federal case out of it.

It begs the question: Why?

From the start, the prosecution seemed motivated by something other than the defendants’ poor accounting. Trace the pre-indictment history of government involvement with Jabar, and the case has all the trappings of a witch hunt. Had the jurors been allowed to hear the back story, they might have seen the fraud accusation for what it was: Another link in a chain of misguided efforts by some U.S. intelligence agents to “get” Jabar.

Their suspicions persisted despite voluminous evidence that the Iraqi-American, whose father was tortured and killed by Saddam Hussein’s thugs, is a lifelong freedom fighter. He is credited by top U.S. military leaders with saving lives during and after the 2003 Iraq War, at the price of his marriage and business.

Those vouching for Jabar’s character include retired U.S. Army Generals William Brandenburg and John Gardner, who both testified on his behalf, and Tom Ridge. The former Homeland Security director wrote that Jabar, 56, helped to uncover terrorist atrocities against Iraqi citizens and “forewarned us of the emerging presence of ISIL.”

I’m not alone in thinking that, in a just world, it’s Jabar’s antagonists who would be on trial.

Granted, the Iraqi-American from Tonawanda – whom I’ve known for 15 years – is an intense, polarizing figure who doesn’t suffer fools or tolerate bureaucracy. His public criticism of U.S. intervention and postwar policy in Iraq, and his wartime misconduct complaint about a high-ranking official in Baghdad, made him enemies in high places ­– including Buffalo-based counterterrorism agents.

“The prosecution was motivated by a desire of some U.S. officials to ‘get’ Jabar,” said defense attorney Mark Mahoney, “on the ludicrous belief that he was a bad guy.”

Talk about a miscarriage of justice.

Jabar and Bowers were ideally suited to start a pro-democracy radio station in Iraq.

Jabar’s father, a geologist and political activist, was killed by Saddam’s henchmen when Jabar was a boy. At the outset of the 2003 invasion of Iraq, Jabar – who arrived here in 1990 – answered the call of his native and adopted countries. His ability to speak four languages and knowledge of Iraqi culture made him a key adviser, on government-agency payrolls, to high-ranking U.S. military.

Bowers, 62, is the wife of a Clarence minister who worked at Journey’s End resettlement agency and joined several humanitarian aid missions to the Middle East. She knew Jabar from the refugee community.

To put it mildly, they make for an unlikely pair of “con artists.” Indeed, Bowers was naïve enough – in the post-9/11 era – to try to send $300,000 of the U.N. grant money from her personal bank account directly to the Middle East. The predictable red flag alerted Buffalo-based federal agents who had previously targeted Jabar.

Beyond that, it’s not as if Jabar and Bowers blew the U.N. grant money in Vegas. Even prosecutors admit that the station was built, funded and continues to broadcast.

Not only was the U.N. grant total of $350,000 spent on the station, but Jabar and Bowers helped to raise an additional quarter-million dollars for its construction and operation.

Vilardo last month, hearing defense motions to dismiss the case, presented an analogy that undercut the government’s fraud argument. Comparing the radio station grant to a $10,000 furniture loan, the judge pressed prosecutors to explain what legal difference it made if the borrower used some of the loan money to buy a car, then used other funds to buy the furniture. Ultimately, the furniture was bought – and that’s what matters. “Isn’t that essentially what happened here?” Vilardo questioned. Well, yes.

Prosecutors argued that $65,000 of the grant money was “pocketed” because Jabar initially used it to pay property taxes and other debts – debts incurred partly because he fronted his own money for the radio station while awaiting the grant funds.

“It was stealing,” argued prosecutor MaryEllen Kresse. “They didn’t use the [grant] funds for what they were intended.”

Yet the defense argued – persuasively, given the judge’s furniture analogy – that the agreement didn’t specify the grant money couldn’t be used for other expenses, as long as $350,000 was ultimately spent on the radio station.

“Nothing said they couldn’t commingle funds,” said Mahoney. “The grant money was fungible.”

The notion that jurors didn’t grasp the complexities of the five-week, 14-count, detail-heavy trial is supported by the contradictory verdict. Jabar and Bowers were acquitted of money laundering charges, yet convicted on two fraud counts – even though the two commonly go hand in hand.

Beyond that, jurors never heard defense claims that the case was an extension of a lengthy vendetta against Jabar by some U.S. intelligence officials. The judge excluded that evidence, granting prosecutors’ argument that it would create a “circus” atmosphere.

Maybe. But the ruling prevented Jabar and Bowers from mounting a full defense and denied jurors a bigger-picture understanding of the case.

“It would have made a difference, absolutely,” said Mahoney, “in affecting jurors’ perspective on whether the government case had any weight.”

A glimpse at the withheld evidence supports Mahoney’s point. A recent story by News reporter Phil Fairbanks marked a trail of U.S. intelligence officials’ targeting of Jabar, including by some based in Buffalo, dating years before the 2009 fraud indictment.

A 2006 FBI memo linked the nonprofit radio station’s board, led by Jabar and Bowers, with al-Qaida – at the same time Jabar was aiding U.S. commanders in the field. There was an email thread the same year from agents poised to “pick up Jabar, blindfold him and take him” to an FBI site for questioning. In an earlier email, a local law enforcement official complained that Jabar was being “jerked around” by a Buffalo-based counterterrorism agent, “possibly at the price of innocent lives.”

Weeks before the 2009 fraud indictment came down, investigators noted the charges would allow them “to neutralize Jabar.”

“Somebody in the intelligence community got it wrong about Jabar, and ran with it,” said Mahoney. “Once they started, there was no turning back.”

The misguided targeting is traceable. Jabar made enemies with public criticism of postwar U.S. policy. He warned that we were empowering ex-Saddamites and frauds like Ahmad Chalabi. He complained that rampant corruption was undermining chances for long-term Middle East stability. All of which was subsequently confirmed.

After complaining in 2004 that a high-ranking U.S. official ran a “party house” in Baghdad, Jabar had his security clearance pulled. He was twice forced to return to the states to clear his status, even as military brass in Iraq pushed for his return. After the misbehaving official’s superior – who was later discredited – labeled Jabar an enemy agent, he was put on a terrorist watch list and had his computers seized.

Members of his family were frequently detained at the Canadian border and subjected to strip searches. Buffalo-based agents on the Joint Terrorism Task Force bought into the smear campaign.

Retired U.S. Army Col. Wes Martin, from 2003-04 the senior antiterrorism officer in Iraq, worked closely with Jabar. He lamented the “continual harassment” of him while in Iraq by “a few Buffalo-based federal law enforcement officers.”

“Thanks to their efforts,” Martin recently recalled, “a very valuable resource for American forces in Iraq was neutralized. … We will never know how many flag-draped American coffins came back to America [as a result].”

Common sense backs defense claims that the prosecution is part of a vendetta against Jabar. Billions of tax dollars went down the sinkhole of corruption, graft and theft in the mess of postwar Iraq.

Why is the government making a federal case of an explicably diverted $65,000 that was replaced multiple times over?

As Jabar said, if he wanted to steal money, he could easily have taken far more than $65,000 in the chaos of postwar Iraq – instead of risking his life in the fight for democracy.

Jabar today is in Buffalo, awaiting a judge’s ruling, instead of helping our cause in Iraq. Bowers remains under a cloud of conviction born not of larceny but naivete.

Eight years into the case, and with the radio station still broadcasting in Baghdad, justice remains undone. A federal judge needs to pull the plug on this travesty and end the senseless ordeal of a pair of patriots.

Donn Esmonde is a retired Buffalo News columnist.

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