Wednesday, April 27, 2016

'Plot to kill Joy' - The article that refused to publish

Toufique Khalidi, Editor in Chief
Yesterday, I was told that had refused to publish an op-ed on the the alleged 'plot to kill' the prime minister's son.

My article was written in response to the news website's own op-ed which had criticised my article written for The Wire, as being 'selective’, ‘misleading’ and ‘confusing’.

'Dear David,' the rejection e-mail stated. 'The editorial board has decided to not carry your piece. We hope you will continue writing for us in the future'. No reason was given.

When I submitted the article on Monday I had every expectation it would be published. Bdnews had previously carried another article critical of me - does it seem this is becoming a bit of a habit? - and it published my rejoinder, no questions asked. However, this time, I was told on Tuesday that 'The editorial board is in the process of deciding whether to publish your rebuttal.' I then responded by saying that I was happy to remove the last paragraph as I thought perhaps 'the editorial board' would find it untoward. This morning I heard that website would not carry the piece at all.

So here it is - in full (including the last para). In a separate post I will write why bdnews24 might have refused to publish it -but would be interested to hear any of your ideas why this might be the case.


Omission and conjecture: A response to Shah Ali Farhad

David Bergman

It takes quite some nerve to write an article about the sentencing of Rizve Ahmed and two other men for bribery offences in the United States and fail to mention the most relevant part of the judge’s ruling - and then to go on to claim that my article is ‘selective’ and its title ‘misleading’ and ‘confusing’.

But that is what Shah Ali Farhad - Assistant Secretary (Central Sub Committee) of Bangladesh Awami League who is employed at a pro-Awami League research organization – has managed to do in his recent article.

Lets start with Farhad’s problems with the title of my article in The Wire, ‘US Court Dismissed Claim of Plot to Injure Bangladesh PM Son.’

Farhad argues that the title ‘tends to denote that a “claim” was made in court about the plot to abduct and kill Sajeeb Wazed by the US government which was then dismissed by the US federal court,’ which he claims did not happen.

Well that in effect is exactly what happened.

As part of its written submission to the court seeking sentencing enhancements, the Department of Justice argued that one of Rizve Ahmed’s objectives in seeking the documents was to physically harm Wazed, and it set out its evidence in support of that claim. (It should be noted that the Department of Justice never claimed at any point in its submission that there was an intention ‘to kill’).

During the hearing the Judge Vincent L. Briccetti considered this evidence and then explained why he thought that it did not support the conclusion claimed by the Department of Justice. (To see the detail of the Department of Justice evidence and the court’s view on it, read ‘Evidential Chasm: The Case Against Journalists Accused of Plotting to Kill Bangladesh PM’s Son’ also published in the The Wire.)

The Judge said, ‘I don't believe that there's sufficient evidence that [Ahmed] really did seek to kidnap and physically harm [Wazed]’.

He also said that on the basis of all ‘the the text messages and the other things that I've seen,’ it was his view that Ahmed’s seeking the confidential FBI information was not about causing Wazed any physical harm but ‘about furthering Ahmed's political aims, getting confidential information to expose what Ahmed apparently thought was corrupt behavior by the ruling party and otherwise embarrass [Wazed].’

Indeed, according to Department of Justice’s submission, the key information obtained from the FBI was, and I quote, “an internal memorandum (the ‘FBI Memo’) that referred to Individual 1 and a sum of $300 million, and a confidential report, known as a Suspicious Activity Report (the ‘SAR’) that also referred to Individual 1.” Individual 1 refers to Wazed.

In his article, Farhad does not refer to or quote a word from the reasons given by the Judge for believing that the evidence was not sufficient to support the Department of Justice’s conclusions. Nor does he quote anything from court’s ruling on this matter.

Since, in relation to the Bangladesh authority’s claim about a ‘plot to kill’, this is the single most relevant part of the sentencing judgment, his failure to do so is bizarre, to say the very least.

Farhad is entitled to disagree with the Judge’s ruling. Indeed, he could well have written an article setting out why he thought the judge was wrong in coming to his conclusions (though interestingly he did not).

However, Farhad is not entitled to set out the ‘evidence’ in one long section of his article, and then seek to pretend to his readers that the US district judge made no negative ruling about it.

Having totally ignored the judgment of the District Court judge, near the end of his article, Farhad then writes the following passage, ‘There should remain no credible doubt as to whether or not there was any cross-border conspiracy to obtaining confidential information on Sajeeb Wazed with the aim of abducting and harming/killing him in the US in light of the information already available in the public domain.’

How he comes to that conclusion - with ‘no credible doubt’, no less - I don’t know.

If we put to one side the US Judge’s comments about the evidence, there remains a huge chasm between the evidence that is currently in the public domain – concerning Ahmed’s criminal purchase of the FBI information, his sale of that information to a journalist (possibly Shafik Rehman), the meeting between the corrupt FBI officer and some Bangladesh associates, and some evidence that Ahmed sought to use the information to harm Wazed – and the claim that there is a ‘cross-border conspiracy’ with ‘the aim of abducting and harming/killing [Wazed] in the US’?

The US Department of Justice may well have further evidence that is not in the public domain which closes this evidential chasm – but at the moment on the basis of evidence in the public domain to make such a conclusion is, one has to say, politically motivated conjecture.

I would suggest that Farhad give up his day job at his Awami League think tank, and look into opportunities with the Bangladesh police, where – with his abilities in analyzing court records and assessing evidence – I am sure he will make a perfect fit.

Thursday, April 21, 2016

A response to bdpanorama - should one laugh, cry, sue or what?

What does one do when a news website in Bangladesh publishes total defamatory rubbish about you and your family - and then gets 13,000 Facebook shares?

Well, a website called bdpanorama has done exactly that. It has published an article, which roughly translates as this:
"Panorama report: After the arrest of BNP chairperson's adviser Shafik Rehman .... journalist David Bergman yesterday met and did a financial deal with Tareq Rahman at London. The meeting took place at April 19 at a restaurant in central London. The middleman of the meeting was a close friend of [his wife], whose name starts with M. Tareq's human right adviser barrister MA Sayem was also present in the meeting. Sources said the agenda of the meeting was to ensure that Safik's arrest was presented in a negative manner and against Awami League in the international media. Initially, they have a 50,000 pound agreement. an official of Sayem's law firm disclosed these information to the Panorama. We will keep you informed on this when we have more information.'
So, on April 19th - and indeed on every day since the middle of January 2016 - I have been living in Dhaka, and have not left the country. So unless I can distort the laws of physics I certainly was not at the meeting on April 19th. My wife was also in Dhaka on that day, and also has not been to London for some months.

I don't know and have certainly never met MA Sayem. And of course I have never received any money from the BNP or any other political party or any individuals connected to a political party

All my journalism is done completely independently. I only ever receive professional fees for my articles from the newspaper or website for whom I write, and from no other person or entity. That also goes for what I write in my blog - though of course no-one pays me for that!

So, it would be wonderful to know who are bdpanorama's 'sources'.

More likely of course no source ever existed, a figment of the website's imagination - and someone decided just to make it up. They saw a recent article I wrote on the background to Shafik Rehman's arrest, did not like it, could not refute it any way since it was entirely fact-based, and decided to try and discredit me with these nasty lies.

Of course, this unfortunately is nothing new, and is something I have written about in the past in the context of my work on the International Crimes Tribunal

And a note to all media. Anyone who repeats these false claims published by bdpanoram are repeating the defamation.

Very sad.

The so-called 'plot to kill Joy' - This is what we know

Yesterday, the Indian news website The Wire published an article on the so-called plot 'to kill' Sajeeb Wazed, the son of the prime minister of Bangladesh. A follow up article was also published. These are the two articles if you are interested in the detail about this 'alleged plot'.

Below are the key point that emerge from these two articles - along with a consideration of the Bangadesh request for legal assistance and the US Government response

This sets out the following*:
  • the two journalists Shafik Rehman and Mahmudur Rahman have been arrested on the basis of information related to a case in the United States. This is clear from the GD and the First Information Report as well as statements by Sajeeb Wazed, the son of the prime minister
  • this 'US case' involved a trial of three men, one a Bangladeshi-American Rizve Ahmed, involving the payment of money to an FBI agent in exchange for confidential information contained in FBI databases about Sajeeb Wazed. The three men pleaded guilty in 2015 to committing bribery and they are all in jail.
  • the three men were never charged with any offence relating to threatening or attempting or planning harm against any person.
  • this case is not one concerning a 'plot to kill Sajeeb' or to harm. It was a case concerned with the illegal procurement of FBI information.
  • the prosecutors never claimed in court that there was any plot 'to kill' Sajeeb
  • prior to sentencing, however, the US prosecutors did claim that one of the Rizve Ahmed's purposes in obtaining the FBI information was to 'kidnap' and 'harm' Sajeeb. According to the case documents, the prosecutors based this on:
    • a voluntary interview with investigating agents in which Ahmed "admitted that he provided the private investigator $4,000, and that he requested the private investigator’s help regarding a plan to “scare,” “kidnap,” and “hurt” Individual 1.” It should be noted that this private investigator, referred to as Steve, was not one of the three men involved in the bribery scheme, but a separate person who Ahmed contacted around January 2012 to obtain information about Wazed.
    • confirmation by the private investigator that Ahmed had told him that he ‘wanted his help regarding a plan to scare and hurt Individual 1’
    • a text message from the corrupt FBI agent, Robert Lustyik to his friend Johannes Thaler, both of whom were convicted along with Ahmed, which was sent when the two men thought Ahmed was reneging on their financial deal. The text stated: ‘Tell [Ahmed], I’ve got [Individual 1’s] number and I’m pissed. . . I will put a wire on n get them to admit they want [a Bangladeshi political figure] offed n we sell it to [Individual 1].’ The assumption, here, is that ‘offed’ means 'killed'.
  • in the course of the sentencing hearing, the court rejected this claim. 'I just don’t feel there’s enough evidence that’s been presented to me for me to make that finding,' the judge said. '“This case is all about furthering Ahmed’s political aims, getting confidential information to expose what Ahmed apparently thought was corrupt behavior by the ruling party and otherwise embarrass [Sajeeb Wazed].
  • the court documents show that Rizve Ahmed gave some of the confidential FBI documents, which he had obtained, to three men - one of whom was referred to a 'Bangladeshi journalist'
  • the court documents show that the prosecutors don't make any other further claim about the Bangladeshi journalist - other than he received these documents
  • the court documents also show that Rizve Ahmed organised a meeting at his house with his two co-conspirators (the FBI agent, and Thaler), a Bangladesh journalist, Rizve's father and another man. The prosecutors say that the purpose of the meeting was to discuss the collection of more confidential documents from the FBI about Sajeeb.
  • the court documents show that the prosecutors don't make any other claim about this meeting other than that its purpose was to discuss the illegal procurement of FBI documents.
It is important to keep in mind that the information we have is limited to what is contained in publicly accessible documents relating to the US case - in particular, the indictment, the government sentencing memorandum, and a transcript of the sentencing decisions.

There could be other information that the Department of Justice and the FBI have about what Ahmed and other people's conduct that is not in the public domain.

In this context, what can we say about the most recent claim made by the Press Trust of India contained in an article which states: 
The United States provided assistance to Bangladesh in its investigation that unearthed the plot to abduct and kill Prime Minister Sheikh Hasina’s son in the US, a senior American official has said, a day after the police claimed to have uncovered the conspiracy. 
“The United States Department of Justice responded to the Government of Bangladesh’s request for legal assistance related to this case,” the official told PTI.
Two things seem to be be conflated here (a) the Bangladesh government's investigation into a so-called plot to 'kill' Wazed; and (b) legal assistance that the department of justice looks to have given the Bangladesh government concerning the Department of Justice's investigation into the US bribery case. For example, the Department of Justice could have provided the names of the three men who received FBI information from Rizvi Ahmed, and three associates of Rizvi Ahmed who met with the FBI agent.

It is the Bangladesh government which is suggesting that these men are all involved in a plot to kill Wazed, not - as far as one can judge from the US court records - the US department of justice.

*Errors in the spelling of names have been corrected. It has also been re-edited in light of further information published in the second TheWire article.

Tuesday, April 12, 2016

The need for nuanced history about 1971

Syed Badrul Hasan has written an article for criticising an oped I wrote  concerning the proposed new law crimanalising people who 'distort' 1971's history.

I have written a response which bdnews has also published, but without internal links. So here is the article with links to support assertions in the article.

The need for nuanced history 
David Bergman

On this website, a few days ago, Syed Badrul Ahsan roundly criticised my op-ed published in the New York Times where I had argued that proposed legislation criminalising people who ‘distort the history of the 1971 war’ was so broadly drafted that it would significantly hinder free speech and stifle legitimate historical research.

‘We will not accept any questioning of the facts related to the War of Liberation,’ Badrul stated in his article where he went onto refer to his ‘absolute unwillingness to allow our history to be questioned.’ He concluded by saying that ‘The Liberation War Denial Crimes Act ought to have been in place a very long time ago.’

In seeking to substantiate his conclusions, Badrul however makes a number of factual inaccuracies, as well as misrepresenting arguments of those like me who are critical of the introduction of the Act.

His first inaccuracy – which also happens to be defamatory – is his attempt to compare me to David Irving.

Badrul states that Irving’s ‘questioning the figures for the holocaust’ – something for which he claims Irving was imprisoned for in Austria - is similar to my ‘rais[ing] issues around the figures of the genocide in Bangladesh.’

It is not correct, however, that Irving was imprisoned for ‘questioning the figures for the holocaust’.

He was punished for denying the use of gas chambers in concentration camps, (a ‘fairy tale’, Irving said’) and also for his claims that Adolf Hitler had helped Europe's Jews and that the Holocaust was a "myth".

This would be like Irving saying about Bangladesh’s 1971 war of Independence that during the war ‘no Bengalis collaborated with the Pakistan military’, that ‘Lieutenant General Niazi had protected the Hindu community from any risk of being killed’ and that ‘no civilians were killed during the 9 month war’.

These would be, if stated by anyone, entirely bogus and false statements which would clearly fall into the category of genocide denial.

But I have never written anything at all similar about the 1971 war.

Lets just look at the New York Times piece. ‘Depending on the source, some 300,000 to three million people were killed, and millions were displaced’ during the war, the article states. It then goes on: “There is no question that there were many atrocities, including rape, deportation and massacres of civilians, carried out by the Pakistani Army, aided at times by pro-Pakistani militias. Some of these included members of the student wing of Jamaat-e-Islami, an Islamist party that remains a powerful force in Bangladesh today. There is an academic consensus that this campaign of violence, particularly against the Hindu population, was a genocide.”

And this paragraph – which one should note states categorically that the killings amounted to genocide - is reflected in all my writings about the 1971 war

Badrul should acknowledge that there could not be a bigger difference between what David Irving has written about the holocaust and what I have written about the 1971 war.

Secondly, Badrul is wrong to suggest that holocaust denial laws ‘have never been an impediment to freedom of speech.’

In fact, they are hotly contested in Europe and criticized both by historians, and freedom of speech advocates.

But, more significantly, Badrul’s is widely of the mark in his attempt to justify the new proposed Bangladesh law by pointing to the ‘holocaust denial laws’.

The Bangladesh law is titled ‘Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’ and its offences are far wider than just criminalizing people who deny the Pakistan army atrocities of the 1971 war or who voice support for the crimes that took place (which would put them on a par with the European laws.)

Instead, the proposed legislation allows for the prosecution of anybody who ‘denies …any events for the preparation of the liberation war’ between 14 August 1947 to 16 December 1971, anyone who ‘misrepresents’ any government publication on the history of the war, or any person who represents the liberation war history ‘inaccurately or with half truth’.

These offences – which would seem to allow for the prosecution of any person who disagrees with any aspect of the ‘government-at-the-time’s’ official version of the 1971 war and the preparatory events towards it – are far wider than any offences contained in the European holocaust denial laws.

Badrul is also wrong to suggest that the holocaust denial laws put the ‘Holocaust beyond debate’. Everything about it, apart from the fact that it happened, is contested and researched.

There continues to be much new history written about the holocaust. As mentioned in a recent New York Times review of a book on the holocaust, ‘More than 70 years after the Holocaust, there is no sign of research on it abating. Instead, over the past few decades, historians have been extending their inquiries … So voluminous is this scholarly outpouring that few are able to keep up with it.’ And the research is about every element of the holocaust.

Much of the rest of Badrul’s article concerns his claim that there is an attempt to in Bangladesh to shape a ‘new narrative’ on the 1971 war.

Perhaps there are people seeking to do that, but journalists and researchers like myself are certainly not part of any such initiative. All that we are interested in doing is being able to articulate a more nuanced view of the 1971 war – and indeed of current political life in Bangladesh - which does not simply ignore research just because it happens to be inconvenient for one reason or the other. As the Guardian newspaper aptly put it: “Mature countries should be ready to interrogate their own history, and accept there are diverse interpretations of how they came to be.”

It is a terrible shame that Syed Badrul Ahsan seems to be set very much against that.

Monday, April 11, 2016

"Bangladesh's deeply politicised, dysfunctional criminal justice system"

The International Crisis Group has published a new report on Bangladesh (which I have written briefly about here) and whilst I don't agree with every word, it has crafted a rather masterly executive summary which accurately reflects the way the law enforcement authorities and the criminal justice system has been used/abused by the current government against its political opponents. The Executive Summary is set out below. The full report is also really worth a read.

"As the Awami League (AL) government’s political rivalry with the Bangladesh National Party (BNP) reaches new heights, so has its repression. At the same time, a deeply politicised, dysfunctional criminal justice system is undermining rather than buttressing the rule of law. Heavy-handed measures are denting the government’s legitimacy and, by provoking violent counter-responses, benefitting violent party wings and extremist groups alike. The government needs to recognise that it is in its interest to change course, lest it fail to either contain violent extremism or counter political threats. A key part of a more prudent course would be to depoliticise and strengthen all aspects of the criminal justice system, including the judiciary, so it can address the country’s myriad law and order challenges and help stall a democratic collapse.

Sunday, April 10, 2016

Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’

Last week, a New York Times oped criticised the breadth of the Bangladesh Law Commission's proposed new law, now titled, ‘Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’ - often referred in short as the 'Liberation War Denial Crimes Act'.

This post provides a translation of the key sections of the proposed legislation. This text is almost identical to the text that was put out for expert consultation, and which was the basis of the NYT oped

As one can see, the offences are very broad and go way beyond 'denying' genocide or showing support for crimes committed during the war - which are the kind of offences found in the European 'holocaust denial' offences.

Section 4(2) sets out the offences - and is the crucial section.
"Any denial of the following subject in any media of any nature or in any manner will be considered as offence of distortion of the history of liberation war and will be considered as a crime 
(a) denying events that were for the preperation of the liberation war betwen 14 August 1947 to 28 Feb 1971 
(b) denying events that were for the preperation of the liberation war between 1 March 1971 to 25 March 1971 
(c) denying events that were for the preperation of the liberation war bweteen 26 March 1971 to 16 December 1971 
(d) Giving a malicious statement in any local or foreign media that undermines any events related to the liberation war 
(e) Misrepresentation or devaluation of any government publication, so far published, on the history of the liberation war; 
(f) Representing the liberation war history inaccurately or with half truth in the text books or in any other medium 
(g) Trivialising any information related to the martyrs, female war heroines, the killing of civilians, arson, rape and looting 
(h) Mocking any events, information or data about the liberation war 
(i) Committing contempt of the liberation war by calling the liberation war anything other than a historic fight for the nation’s independence

(j) showing justification for or publicising support for various criminal activities conducted by the Pakistan army in 1971 and Al Badr, Razaker, Al Shams and members of the Peace Committees As the Auxillary forces of the Pakistan army. 
(k) Showing support to the crimes against humanity, crimes against peace, genocide and other war crimes or calling into question or carrying out false propaganda about the trials that deals with these crimes."
Section 4(2) states that
"Any supporting activities of any kinds of activities mentioned in subsection (1) will also be considered a crimes under this law."
Section 5(1) states that the sentence for committing an offence under section 4 is from 3 months to five years imprisonment as well as a fine of upto Tk 1 crore.

Section 5(2) states that if anyone convicted for the crimes mentioned in section 4 repeats these crimes again, 'he will face double the punishment for what he received in the first offence' and that if someone is convicted for more than one crime at a time 'then punishment will be carried out in a consecutive manner.'

Section 6(1) states that anyone who provides any assistance or conspires to commit an offence he will face the same punishment as the principal offender

Section 7 sets out the procedure. It states that anyone can file a case in a police station or in a local court. If the case is filed in court, before taking the case, the court will analyse the allegation and question the alleged person and conduct the investigation as they consider appropriate. The trial will be conducted under the code of criminal procedure. The government can appoint one or more special prosecutor to conduct the prosecution.

Section 12 states that that the law applies to any Bangladeshi citizen who commits this offence outside Bangladesh.

Friday, April 8, 2016

ICIJ 2013 leak database

There are some misleading reports in the Bangladesh media (like this one) that suggest that Bangladeshis have been named in 'The Panama papers'

As of now, that is not the case. 

The only names of Bangladeshi politicians and businessman linked to offshore companies that have been released by the ICIJ consortium relate to an earlier 2013 leak of information involving the British Virgin Islands. 

However, ICIJ have created a public database of some of that 2013 leaked information which also can be accessed here.

Just search for Bangladesh, and you will get quite a lot of information, though no corroborative documents.

It should be emphasised that none of the information in this database relates to the Panama Papers - only to the 2013 leak. It is not new.

Tuesday, April 5, 2016

Top AL family set up offshore company network

One of the big international news stories right now is the leak of information concerning the establishment of off-shore companies by politicians and businessmen around the world involving the Panamanian law firm, Mossack Fonseca.

Just over two years ago, the International Consortium of Investigative Journalists were also involved in another leak of information about offshore companies in the British virgin islands.

Whilst the connections of Bangladeshi politicians and businessmen to the offshore companies identified from the most recent leak of the Panama law firm papers are not yet known, here are the stories published just over two years ago in The New Age about the offshore companies set up by Bangladesh politicians and businessmen in the British virgin islands

Below is the main  article, first published in New Age on 12 July 2013 concerning a network of off-shore accounts set up Kazi Zafrullah - a member of the Awami League's 12 member presidium and also relative of the prime minister by marriage.

Bangladeshi businessmen's link to offshore companies revealed

This article was originally published on 14 July 2013 in The New Age, and is part of a series on offshore companies set up by Bangladeshi businessmen and politicians. (The original link is not working)

Local businessmen’s link to offshore companies revealed 
David Bergman 
The directors of some of Bangladesh’s biggest business conglomerates, including Summit, Square, and the United group, own or have owned offshore companies in the secretive tax haven of the British Virgin Islands, New Age can reveal.
Information about their offshore company ownership is contained amongst the 2.5 million electronic files which were leaked to the International Consortium of Investigative Journalists – and which have been shared with New Age.
The files contain information from the databases of two offshore company service firms including Singapore-based Portcullis TrustNet which was the firm that these businessman paid to set up their companies.
From the ICIJ files, New Age has identified a total of over 20 Bangladeshi business people who have owned an offshore company, though there may be many more who have registered using a non-Bangladesh address or who set up offshore companies using different service agencies.

Legality of offshore companies, bank accounts

This article was originally published on 12 July 2013 in The New Age, and is part of a series on offshore companies set up by Bangladeshi businessmen and politicians in the British Virgin Islands (The link to the article on the New Age website is not working)


Legality of offshore companies, bank accounts

David Bergman

The legal foundation for the rules relating to how Bangladesh residents can remove money from the country for personal or business use is set out in the Foreign Exchange Regulation Act 1947.
Section 5 of the Act sets out a blanket restriction on residents from making payments to people resident outside Bangladesh – though the same section allows Bangladesh Bank to make both ‘general or special’ exemptions to this rule.