EVAN KOHLMANN IS the U.S. government’s go-to expert witness in terrorism prosecutions.
By Trevor Aaronson
WASHINGTON (TheIntercept) – Since 2004, Kohlmann has been asked to testify as an expert about terrorist organizations, radicalization and homegrown threats in more than 30 trials.
It’s well-paying work — as much as $400 per hour. In all, the U.S. government has paid Kohlmann and his company at least $1.4 million for testifying in trials around the country, assisting with FBI investigations and consulting with agencies ranging from the Defense Department to the Internal Revenue Service. He has also received another benefit, Uncle Sam’s mark of credibility, which has allowed him to work for NBC News and its cable sibling, MSNBC, for more than a decade as an on-air “terrorism analyst.”
Kohlmann’s claimed expertise is his ability to explore the dark corners of the Internet — the so-called deep web, which isn’t indexed by commercial search engines — and monitor what the Islamic State, al Qaeda and their sympathizers are saying, as well as network the relationships among these various actors. Kohlmann doesn’t speak Arabic, however, and aside from a few days each in Saudi Arabia, Jordan, Dubai and Qatar, has hardly any experience in the Arab world. Kohlmann’s research is gleaned primarily from the Internet.
Indeed, Kohlmann is not a traditional expert. Much of his research is not peer-reviewed. Kohlmann’s key theory, to which he has testified several times on the witness stand, involves a series of indicators that he claims determine whether someone is likely a homegrown terrorist. Yet he has never tested the theory against a randomly selected control group to account for bias or coincidence.
For these and other reasons, Kohlmann’s critics describe him as a huckster.
Kohlmann’s works are “so biased, one-sided and contextually inaccurate that they do not provide a fair and balanced context for the specific evidence to be presented at a legal hearing,” said one terrorism researcher.
In a court filing, Marc Sageman, a forensic psychiatrist and former CIA officer who has been called to the witness stand several times to discredit Kohlmann’s claims, described his testimony and reports as “so biased, one-sided and contextually inaccurate that they do not provide a fair and balanced context for the specific evidence to be presented at a legal hearing.”
In recent months, however, the small cohort of defense lawyers nationwide who battle the government in terrorism prosecutions have been asking themselves another question: What’s in the government’s mysteriously classified materials about Kohlmann?
The question began circulating last year. While representing at trial Mustafa Kamel Mustafa, of the Finsbury Park Mosque in London, New York lawyer Joshua Dratel, who has security clearances, was given classified materials about Kohlmann, a witness in the Mustafa prosecution. “It was the integrity of a prosecutor who learned of [the materials] some way,” Dratel said, crediting a single Justice Department employee for providing a rare full disclosure about Kohlmann.
Dratel has reviewed the classified materials in full, but he is prohibited from discussing their contents publicly. “It’s hard to talk about it without talking about it,” he said.
However, the judge in the Mustafa case allowed very limited references to the contents of the classified materials during Dratel’s cross-examination of Kohlmann — providing a clue to what the government is hiding about its star terrorism expert.
“You have done more than consulting for the FBI, correct?” Dratel asked Kohlmann.
“Correct,” Kohlmann said from the witness stand.
“You have done more than act as an expert for the government, correct?” Dratel followed.
“That’s correct, yes,” Kohlmann admitted.
That’s as far as the judge would allow.
Kohlmann and the Justice Department did not respond to repeated requests to comment for this story.
Asked if he thinks the information about Kohlmann should be classified, Dratel commented: “I think it’s unjustifiably classified now. I think the rationale for its classification is more connected to litigation, to protecting Kohlmann as a witness.”
KOHLMANN GREW UP in South Florida and attended Pine Crest School, a tony prep school with campuses in Fort Lauderdale and Boca Raton.
“I applied to college not really knowing what I wanted to do, but I spent summers in France — my father grew up there — and I was always interested in foreign affairs,” Kohlmann said in a 2006 profile in Penn Law Journal, titled “Terrorists Beware; Kohlmann is on the Case.”
Kohlmann studied political science at Georgetown and later law at the University of Pennsylvania, though he never took the bar exam. His steeping in terrorism studies can be credited to Steven Emerson, who founded a nonprofit think tank, the Investigative Project on Terrorism, which a young Kohlmann joined in 1998. “I started obviously as an intern, but by the time I left the Investigative Project in 2003, I was a senior analyst,” Kohlmann said in court testimony.
Prior to the 9/11 terrorist attacks, Emerson successfully portrayed himself as a credible terrorism expert, thanks in part to his 1994 documentary, Terrorists Among Us: Jihad in America, which aired on PBS Frontline. His work at the Investigative Project on Terrorism, which he founded shortly after the airing of Terrorists Among Us, helped fuel speculation linking University of South Florida professor Sami Al-Arian to the Palestinian Islamic Jihad, and the Holy Land Foundation to Hamas. In addition to Kohlmann’s, Emerson also helped launch the career of Rita Katz, who runs the SITE Intelligence Group.
“The Investigative Project was a nonprofit enterprise seeking to collect and harvest information — difficult-to-find information about the recruitment, communications, and financing of particular international terrorist organizations,” Kohlmann said in court testimony. “Then taking this information, and both in its raw form and by distilling it into unclassified memorandums, congressional testimonies, and other documents, including media … we then provided this information to a variety of different people, including, again, everyone from policymakers in Washington, DC, law enforcement, other academics, media, you name it.”
(In recent years, while Kohlmann and Katz have maintained close relationships with the U.S. government and news media, Emerson has seen his star fade due to two embarrassing Fox News appearances — one in 2013, when he claimed a U.S. government official told him that a Saudi national initially suspected in the Boston Marathon bombings was being deported on national security grounds, and another this year, when he said Birmingham, England, was “totally Muslim” and off limits to non-Muslims.)
While at the Investigative Project on Terrorism, Kohlmann wrote what would become his book, Al-Qaida’s Jihad in Europe: The Afghan-Bosnian Network. He initially submitted the manuscript to the University of Pennsylvania Press, where Sageman, who would become a chief critic of Kohlmann’s work as a government expert, was asked to serve on a peer review panel. He recommended against publishing the book. Kohlmann found a publisher in the United Kingdom, Oxford International Publishers, which had no affiliation with the University of Oxford. (Kohlmann has been asked whether he has intentionally tilted his testimony to leave the impression that his book’s publisher was linked to the prestigious university. “I did not deliberately attempt to exaggerate my credentials,” Kohlmann said in court testimony last year, countering this question.)
With his book and stint with the Investigative Project on Terrorism as credentials, Kohlmann became an expert witness for the Justice Department and a consultant for the FBI. An FBI agent described the baby-faced expert as “the Doogie Howser of Terrorism,” and a George Washington University law professor described Kohlmann to New York magazine as having been “grown hydroponically in the basement of the Bush Justice Department.”
Among Kohlmann’s earliest cases was the 2006 prosecution of Yassin Aref and Mohammed Hossain in Albany, New York. It was the first FBI counterterrorism sting to use Shahed Hussain, an aggressive criminal-turned-informant who was involved in the investigations of the so-called Newburgh Four — a sting involving four defendants and a plot to bomb synagogues in the Bronx and attack a nearby airport — and of Khalifah al-Akili, a botched sting operation in Pittsburgh in which the FBI informants’ covers were blown. The Albany case was a convoluted one involving a loan between Hussain, the informant, and Hossain, a local businessman who owned a pizzeria and a few rental properties. Aref, a local imam originally from Iraq, was brought in to observe the loan transaction and terms in accordance with Islamic law. The government alleged that Hossain and Aref knew the money was connected to the importation of missiles — the informant used a code word for the missiles, chaudry, the government alleged — but defense lawyers for the two men maintained that they believed the arrangement was a loan, not money-laundering for terrorists.
To support charges that the pair was involved in terrorism, the government used the transcript of a recording between Hossain, the pizzeria owner who was originally from Bangladesh, and the FBI informant. “We are members of Jamaat-e-Islami,” Hossain said in the recording.
The government initially claimed that Jamaat-e-Islami, a political party in Bangladesh, was linked to terrorism through a proxy organization, Jamaat-ul-Mujahideen. Rohan Gunaratna, a terrorism scholar at the S. Rajaratnam School of International Studies in Singapore, was originally going to testify to this connection as an expert. But the government instead brought in Kohlmann.
Kevin A. Luibrand, a lawyer for Hossain, challenged Kohlmann’s knowledge as an expert.
“Can you name any of the major political parties in Bangladesh from the year 2000 to 2004?” Luibrand asked Kohlmann in a deposition.
“Other than Jamaat-e-Islami?” Kohlmann asked.
“That’s — I’m not familiar off the top of my head,” Kohlmann said.
“Have you ever heard of an organization known as the Bangladesh National Party?” Luibrand followed.
“Do you know what it is?”
“I’m assuming it’s a political party, but again — the name vaguely sounds familiar but …” Kohlmann answered.
“Do you know what, if anything, it stands for politically within Bangladesh?” Luibrand asked, cutting off Kohlmann’s answer.
“Sorry, can’t tell ya,” Kohlmann said.
The Bangladesh Nationalist Party, to which Luibrand was referring, is one of the two largest political parties in Bangladesh and allied with Jamaat-e-Islami.
“You can’t tell me because you don’t know?” Luibrand asked Kohlmann in a follow-up question.
“I don’t know off the top of my head,” Kohlmann said.
Kohlmann also admitted in the deposition that he had never written about Jamaat-e-Islami of Bangladesh. Luibrand asked to have Kohlmann disqualified as an expert, arguing that Kohlmann was unable to demonstrate knowledge of the groups he was testifying about. A judge denied the request and allowed Kohlmann to testify. Aref and Hossain were convicted and sentenced to 15 years in prison.
From there, Kohlmann’s career as a government witness skyrocketed. In all, he has testified in more than 30 trials, including the trial of the Fort Dix Five, a group of men who allegedly planned to attack a U.S. military base in New Jersey; of medical doctor Rafiq Abdus Sabir, who was caught in a sting swearing allegiance to al Qaeda; and of Mohamed Osman Mohamud, who plotted with undercover FBI agents to bomb a Christmas tree-lighting ceremony in Portland, Oregon. Among more recent court appearances, Kohlmann testified in the Tampa, Florida, trial of Sami Osmakac, a counterterrorism sting target FBI agents described privately as a “retarded fool” whose targets for an attack were “wishy-washy.”
At the same time, Kohlmann has amassed what he has described as seven terabytes of information related to terrorism and illicit activity. He has described the database as proprietary, and he’s never been asked to turn it over as part of his expert testimony. He also leverages it, according to court testimony, to provide information and services to private sector clients; as of 2014, working for the government represented only about 40 percent of Kohlmann’s income.
Sageman, one of Kohlmann’s harshest critics, alleges that the use of this database in trial testimony and expert reports lacks transparency and makes it difficult, if not impossible, to challenge his conclusions. “He uses the appearance of scholarship, such as footnote references, but is extremely selective in his references basing them not on actual scholarly work, but on anecdotes from obscure references that he often has privileged access to, preventing other scholars from checking the context of the reference,” Sageman wrote in a court report.
Sageman also alleged in the same report that Kohlmann views his expert testimony not as well-researched and settled science to be discussed honestly at trial, but as a kind of information clay to be molded for the prosecution’s benefit. Referring to a conversation he had with Kohlmann over lunch, Sageman wrote: “He selects what is most supportive for the side that retains him. Indeed, he told me so at one time when I challenged him about his testimony in the [Hammad] Khurshid case in Copenhagen, because he had neglected to mention important facts under oath. He justified his one-sidedness by saying that it was an adversarial process and it was up to the defense attorneys to cross examine him.”
Among the topics Kohlmann often testifies to is his theory of homegrown terrorists — a series of indicators showing that a disillusioned individual living in the United States likely has stepped over the line to become a terrorist. He has testified that the indicators include choosing a scheme to travel abroad to fight or launch an attack in the United States; acquiring training material and propaganda from the Internet or elsewhere; adherence to an extreme ideology, particularly radical Islam; using “logistical subterfuge” by, for example, encrypting electronic communications or taking indirect routes when traveling; and attempts to contact like-minded individuals. “Not every case necessarily has one of these or all of these, but you do tend to see these factors pop up again and again,” Kohlmann testified in a 2011 hearing in the case of the so-called Triangle Terror Group in North Carolina. “And these tend to be the most definitive factors leading to judge whether something is, indeed, a valid home-grown terrorist or home-grown extremist network or violent extremist network.”
However, the number of indicators in Kohlmann’s theory appears to be malleable, depending on the case. In the North Carolina trial, he testified to five factors. Two years later, in court testimony in the 2013 case of Mohamed Osman Mohamud in Portland, Oregon, Kohlmann listed six factors. In a hearing in the Triangle Terror Group case, Kohlmann conceded that his terrorism indicators, and his methodology in general, are not supported by any statistical analysis that would prove their veracity.
“You go through marriage, camouflage, dressing or what someone wears, the use of guns or paint-balling and training, propaganda and travel and draw certain conclusions from that, correct?” asked defense lawyer James M. Ayers III.
“That’s correct, yes,” Kohlmann answered.
“Now, you have done no statistical studies as to what percent of the population that engages in these various activities are terrorists or not, correct?” Ayers followed.
“No, that’s correct,” Kohlmann said, adding later that he did not believe numerical statistics were applicable to studying homegrown terrorism because of the infrequency of cases.
And it’s not just that Kohlmann chooses not to subject his theory to rigorous testing; he doesn’t seem know much about social science research at all. In a July 2014 hearing in the case of Ralph Deleon, a citizen of the Philippines, and Sohiel Omar Kabir, an Afghanistan-born U.S. citizen — who along with two others were swept up in an informant-led counterterrorism sting — defense lawyer Angela Viramontes quizzed Kohlmann on commonly used terms in the social sciences.
“What is your understanding of an attribute in social science research?” Viramontes asked Kohlmann.
“I don’t understand the question, Your Honor,” Kohlmann said, turning to the judge.
“I think the question speaks for itself. If you don’t know the answer, you don’t know,” Viramontes followed.
“I don’t know the answer,” Kohlmann said.
THE PRIMARY CRITICISM of Kohlmann’s work is that his knowledge about terrorist groups and purported expertise are based primarily on Internet research. The other concern is a question of impartiality, and how much information from the deep web Kohlmann may be giving the FBI for investigations.
Yet the U.S. Department of Justice continues to employ Kohlmann as an expert witness. Most recently, he was proposed as an expert in the prosecution of Agron Hasbajrami, an Albanian citizen who pleaded guilty on June 26 in New York to attempting and conspiring to provide material support to terrorists, before Kohlmann could testify in his trial.
In other cases, Kohlmann has testified to the fact that he has assisted the FBI with investigations — but it’s unclear how far Kohlmann’s work crosses the line from independent expert and consultant to paid criminal investigator for the FBI. That’s why, among defense lawyers in terrorism cases, there’s a lot of interest in what the government is hiding in classified materials about Kohlmann.
These lawyers started swapping information in earnest last year, when Joshua Dratel provided a signed declaration to the lawyers representing Deleon and Kabir in Southern California. “It is my opinion that review of the classified materials is essential to any cross-examination of Evan Kohlmann, whom the government has apparently proposed as its expert witness in the Kabir prosecution,” Dratel wrote. “It is also my opinion that the classified materials are extraordinarily material to such cross-examination; indeed, I do not believe there could be more material information.”
Jeffrey Aaron, who represented Kabir, asked the judge to force the government to provide the classified materials on Kohlmann. “We felt that he didn’t seem like a legitimate academic expert to us,” Aaron said. “He seemed like an advocate, and it seemed to us that he was a witness who would always find a way to support the government’s case. We suspect that the material under top-secret protection probably dealt with him cooperating with the FBI or being a quasi-government agent. And honestly, we thought that was very disturbing.”
The judge in the Kabir case, Virginia A. Phillips, refused to give defense lawyers access to the classified materials — but she did hint at their contents in her written ruling: “The materials requested by the defendants to be produced in discovery relate to work on other investigations performed by Evan Kohlmann for the Federal Bureau of Investigation (‘FBI’) and do not address the facts of this case or the conduct of the defendants.”
When Dratel was given access to the classified materials on Kohlmann, and offered a limited opportunity to question him about them on the witness stand during the Mustafa case, he appeared to push Kohlmann to disclose the information — offering even more hints about what might be in the classified materials.
“You testified in a case called United States v. Mehanna?” Dratel asked Kohlmann in the hearing last year.
“Yes,” Kohlmann answered.
Tarek Mehanna was a Massachusetts man who, in a case widely criticized by civil libertarians, was convicted of charges that included providing material support to terrorists because he translated radical Arabic texts into English for a website — the type of activity Kohlmann monitors as a part of his business.
“In that case, in preparing for that case, or at any time during that case, did you inform the prosecutors in that case of your precise relationship with the FBI?” Dratel continued.
“I don’t know what you mean by ‘precise,’ but the prosecutors in that case I had worked with on a previous case, and they were fully aware of the nature of my work with the FBI,” Kohlmann answered.
“No, the precise nature of your relationship with the FBI,” Dratel said, speaking cryptically due to the classified material and the limits the judge had placed on his questions.
“Objection, your Honor,” the prosecutor interrupted.
“Did you inform them?” Dratel asked Kohlmann.
“Sustained,” said U.S. District Court Judge Katherine B. Forrest. “Asked and answered.”
Dratel couldn’t go any further.
And Kohlmann didn’t actually answer the question.