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Peter Lance

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Mr. Fitzgerald, In Your Threat to Sue for Libel, Please, Either Put Up or Shut Up

Posted: 07/15/09 02:50 PM ET

Seven weeks ago Patrick Fitzgerald, the most intimidating Federal prosecutor in America, sent my publisher (HarperCollins) and me a letter threatening to sue us for libel if Triple Cross, a book I wrote, critical of his anti-terrorism track record, was published.

Yesterday marked the four-week anniversary of the book's pub date and although it's been out for a month, we're still waiting for his summons and complaint.

It was the fourth threat letter that Fitzgerald had sent since October 2007 and the man who'd succeeded in getting New York Times reporter Judith Miller jailed for 85 days in the CIA leak probe was growing impatient.

"To put it plain and simple," Fitzgerald wrote, "if in fact you publish the book this month and it defames me or casts me in a false light, HarperCollins will be sued."

You could almost hear Fitzgerald holding his breath and stamping his feet, astonished that we had not rolled over after he issued the following demand in his first letter 20 months earlier:

I write to demand that Harper Collins cease publication, distribution and sale of the current version of the book... issue and publish a clear and unequivocal statement acknowledging that the book contains false statements about me; refrain from publication of any updated version (and) take no steps to transfer the rights to any other person or entity to publish the book in any form.

In this initial letter, Fitzgerald included an attachment requesting that HarperCollins "preserve" twelve separate categories of records including all "book drafts," correspondence between me and the publisher, even "records of any and all projected sales" of the book "including any and all records of profits attributable to Triple Cross."

There was even the hint of a personal vendetta. Apparently, Judith Regan, my former publisher, who'd left HarperCollins in 2006 after the scandal over the O.J. Simpson book If I Did It had discussed a $1 million book deal with Fitzgerald for his memoirs.

So in that first threat letter, the U.S. Attorney demanded:

...any documents reflecting Harper Collins estimate of the market value of my personal reputation, including, but not limited to, any documents relating to an unsolicited letter from Judith Regan, on behalf of Harper Collins, to me offering me a "seven figure" sum for the rights.
Two weeks later, on November 2nd, 2007, Mark Jackson, then attorney for HarperCollins, rejected Fitzgerald's libel claim and called Triple Cross "an important work of investigative journalism."

But the man The Washington Post once called a "relentless" prosecutor was undaunted. On November 16th, Fitzgerald send a second letter; this one amounting to 16 pages. And, as if to remind us who we were dealing with, each page bore a time stamp showing that it was faxed from the office of the "U.S. Attorney Chicago."

In the June 8th edition of Newsweek, when Michael Isikoff, broke the story of Fitzgerald's campaign to kill the book, he quoted the Chicago U.S. attorney as saying that he was "not aware" that the time stamp would be visible. But that's a difficult story to swallow from the man Vanity Fair described as having a "mainframe-computer brain," in their fawning 2006 tribute, "Mr. Fitz Goes to Washington."

32 Pages of Threat Letters

If you go to my website http://peterlance.com and download the 32 pages of threat letters, they chronicle an almost obsessive effort by Fitzgerald to pulp the book.

In his third letter, sent on September 22nd, 2008 Fitzgerald actually used the word "demand" twice in the same sentence: "I write to demand immediate compliance with my demands of October, 2007."

In his fourth letter, sent June 2nd, 2009, Fitzgerald described the entire book as "a deliberate lie masquerading as the truth."

Consider the recklessness of that statement in the context of the libel standard that all journalists live by: the rule set forth in the landmark Supreme Court case, New York Times vs. Sullivan.

In order to mount a successful defamation claim "Times vs. Sullivan" requires a public official like Fitzgerald to demonstrate "a reckless disregard for the truth," or "actual malice."

Fitzgerald would be hard pressed to clear that hurdle, since the hardcover edition of Triple Cross ran 604 pages, with 1,420 end notes and 32 pages of documentary appendices including a series of FBI 302 memos and a 1999 affirmation sworn to by Fitzgerald himself.

If you have any doubts about the depth of my research, termed "meticulous" in a recent piece for Forbes.com, you can download a pdf of the illustrated Timeline from the middle of the book, along with those appendices, which include some heretofore classified documents.

Yet in his 20-month campaign to kill the book, Fitzgerald crossed the threshold of libel himself. In a June 8th interview with the Associated Press, he falsely claimed that I blamed him in Triple Cross for the mass casualties on 9/11 and the African Embassy bombings:

"The book lied about the facts and alleged that I deliberately misled the courts and the public in ways that in part caused the deaths in the 1998 embassy bombing attacks and in the attacks of Sept. 11, 2001." Fitzgerald said the lives lost in those attacks were personal for him and he decided to stand up for himself because "it is outrageous to falsely accuse me of causing those deaths corruptly."

A simple reading of Triple Cross in its hardcover edition will offer proof positive that I never even came close to making such a claim. But that comment, along with Fitzgerald's "lie masquerading as the truth" line, suggested the same reckless disregard for the truth that I was accused of by the Chicago U.S. Attorney.

A Justice Dept. Complaint Vs. Fitzgerald

So, on June 15th, I filed a complaint against Fitzgerald with the Justice Department's Office of Professional Responsibility, asking acting counsel Mary Patrice Brown to open what amounts to an internal affairs investigation of the U.S. Attorney and his drive to pulp my book.

An examination of Fitzgerald's 32 pages of threat letters suggests that if he actually wrote them himself he must have spent days, perhaps even weeks, trying to bury Triple Cross. If he used one of the 161 lawyers in the Chicago federal prosecutor's office, that raises even more serious questions.

Since word of the Fitzgerald censorship scandal broke I've had the support of a number of First Amendment and anti-censorship advocates. including The Reporter's Committee for Freedom of the Press, Nat Hentoff, the éminence gris of The Village Voice, who wrote his last column in January, and Jan Schlichtmann, the gusty tort lawyer celebrated in Jonathan Harr's 1995 best seller A Civil Action.

"What Patrick Fitzgerald, tried to do, in attempting to shut down this book, was repugnant," says Schlitchtmann. "It represented a virtually unprecedented attempt by a sitting U.S. official to kill a book critical of his performance in office. Fitzgerald had to know he didn't have a libel claim, yet for months and months he tried to force HarperCollins and Peter Lance to knuckle under to his demands -- something they refused to do."

So far, online columnists on the right and the left, who might otherwise have cut each other's throats, have been universal in their support for Triple Cross's publication.

See columns from Newsmax, WorldNetDaily, Accuracy in Media and The New American on the right to The Daily Kos, rawstory.com and thepublicrecord.com on the left.

Rory O'Connor's piece for The Huffington Post was entitled: Patrick Fitzgerald's Private Jihad.

The Chilling Effect

In an article I wrote for playboy.com, published June 16th, I detailed the kind of '''Chilling Effect," Fitzgerald sought to achieve with HarperCollins. In the piece I presented evidence that in discrediting a treasure trove of al Qaeda-related intelligence in 1996 (underscored by his June 25th, 1999 sworn affirmation) Fitzgerald himself might have been guilty of the very same perjury and obstruction charges he used to convict Scooter Libby in "Plamegate."

That Playboy piece also detailed another central finding in Triple Cross that Fitzgerald may have found embarrassing: the story of Sphinx Trading. Sphinx was a mailbox-check cashing store located in the same building that housed the al-Salam Mosque of blind Shiekh Omar Abdel Rahman. That mosque location was dubbed "the Jersey Jihad office" during the "Day of Terror" trial co-prosecuted by Fitzgerald and Assistant U.S. Attorney Andy McCarthy in 1995.

Prior to that trial, Fitzgerald and McCarthy compiled a list of 172 un-indicted co-conspirators, which included bin Laden and his brother-in-law Mohammed Jamal Khalifa.

In a November 17th, 2006 piece for The Huffington Post, I made the case that if the Feds, under Fitzgerald (then head of the Organized Crime and Terrorism Unit in the SDNY), had applied just a portion of the energy monitoring Sphinx that they had used on their around-the-clock surveillance of John Gotti's social club in Little Italy, the Towers might still be standing in Lower Manhattan.

Why? Because al-Midhar and al-Hazmi, two of the muscle hijackers who flew AA #77 into the Pentagon on 9/11, not only had mailboxes at Sphinx but they got the fake IDs they used to board that flight from Mohammed El-Attriss, Sphinx's co-founder and partner in Sphinx with Waleed al Noor.

In that list of unindicted co-conspirators drawn up by McCarthy and Fitzgerald during the Day of Terror trial, Waleed A. Noor was No. 130. That means Fitzgerald considered him important enough to associate with Ali Mohamed and Osama bin Laden himself.

The Feds had been onto Sphinx Trading since 1990 when the killer of Rabbi Meier Kahane (El Sayyid Nosair) was found to have kept a mailbox there.

By 2001, Fitzgerald was the effective "general" directing the Justice Department's "war on terror." By simply connecting those three dots: from Nosiar to al Noor to El Attriss, the Feds could have been into the "planes operation" executed on 9/11 in July -- two months earlier.

Al Qaeda's Master Spy

But perhaps the revelation in Triple Cross most embarrassing to Patrick Fitzgerald related to another name on that list of 172, No. 109: Ali A. Mohamed, the al Qaeda master spy who became the central focus of my book.

Not only did the ex-Egyptian army major succeed in scamming the CIA in Hamburg in 1984, but he slipped past a Watch List, seduced a U.S. woman on a TWA flight from Athens to JFK in 1985, married her at a drive-through wedding chapel in Reno, Nevada, then set up a sleeper cell at her home in Silicon Valley.

Months later he enlisted in the U.S. Army where -- astonishingly -- he succeeded in getting himself posted to the JFK Special Warfare School at Fort Bragg, the highly secure facility where elite Green Beret and Delta Force Officers trained.

20 years ago this week, Ali, known to his radical Islamic bothers as "Ali Amiriki," ("Ali the American") was driving up to New York City, where he trained the al Qaeda cell members later convicted in the 1993 WTC bombing, the Kahane murder, and the "Day of Terror" plot (prosecuted by Fitzgerald and McCarthy) whose cell members intended to blow up the bridges and tunnels into Manhattan.

All of those Mohamed trainees were photographed, on four successive weekends in July -- almost 20 years ago -- by the FBI's elite Special Operations Group (SOG), the same black bag unit that "Got Gotti"

From January 1996, as I document in Triple Cross, Fitzgerald was effectively directing Squad 1-49 (the bin Laden Squad) in the FBI's NYO -- seeking to get an indictment of Osama bin Laden. One of the lead agents was Jack Cloonan, whose job it was to go back and discover who Ali Mohamed really was.

As Cloonan started peeling back the layers of Mohamed's triple sting of the CIA, DIA (at Bragg), and the FBI (where he'd become an informant from 1992 on), his jaw began to drop at Ali's cold-blooded boldness and success.

And, as I documented in the book, two of the principal Feds that "Ali Amiriki" snookered were Andy McCarthy and Patrick Fitzgerald himself.

In 1994, prepping for the "Day of Terror" trial, McCarthy actually flew to California and met Ali face to face, withdrawing back to New York after Mohamed lied and told him that he was running a scuba diving business in Kenya.

The truth was that, by then, Mohamed was a principal player in the emerging plot to blow up the U.S. Embassies in Nairobi and Dar Es Salaam. In fact Mohamed had commenced the plot in 1993 by taking the very surveillance picture bin Laden would use to locate the bombs that would detonate years later in 1998.

In an interview for the book, Cloonan admitted that Ali was actually angry at the Feds for not paying his airfare from Africa to California for the meet with McCarthy.

But the al Qaeda spy's most audacious act would play out three years later in the fall of 1997 in front of Patrick Fitzgerald himself. After another Squad I-49 agent discovered evidence linking Ali to one of the plot's top co-conspirator's in Nairobi, Fitzgerald actually flew across country to confront Ali in a face to face meeting. It took place in a Sacramento restaurant across from the California state house.

After the Feds made their pitch to get Mohamed to turn, the hardened terrorist declared that he "loved" bin Laden and didn't need a fatwa to attack America.

Further, he admitted that he had a number of effective "sleepers" hiding in the U.S. homeland whom he could activate at any time.

Leaving Mohamed "On the Street"

Then, thumbing his nose as the man Vanity Fair called "the bin Laden Brain," Mohamed left -- at which point Fitzgerald turned to Cloonan and called Ali "the most dangerous man I have every met." More importantly, he declared, "we cannot let this man out on the street."

But that's exactly what happened. Mysteriously, Fitzgerald allowed this al Qaeda master spy to stay loose for another ten months until a month after the simultaneous truck bombings in Kenya and Tanzania that killed more than 200 and injured thousands.

Only then did Fitzgerald pull Ali "over," arresting him and stashing him in the M.C.C. (federal jail in Lower Manhattan) under a John Doe warrant -- ultimately cutting a deal with Mohamed to avoid the death penalty.

By any definition a deal is a contract -- a promise for a promise -- and previous "rats" like Sammy "the Bull" Gravano, earned their way to an early release by becoming star witnesses at a host of Federal trials.

But when Patrick Fitzgerald commenced U.S. vs. bin Laden, the embassy bombing trial in early 2001 (the case that made his career), Ali "The American" was curiously missing from the stand.

The Greatest Enigma

In effect, the Feds had bought his silence with that deal. Today, Mohamed is hidden away in some kind of custodial witness protection -- perhaps the greatest enigma in the "war on terror."

This ex-al Qaeda spy is a one man 9/11 Commission who could stand witness to the failures and screw ups of the FBI and Southern District Feds on the road to September 11th, but there are seals upon seals on his case. He'd been virtually forgotten by the public, until I happened to tell his story with such detail in Triple Cross.

That's the book that Patrick Fitzgerald didn't want you to read.

The new trade paperback edition is now in stores -- updated and 26 pages longer so that I could air Fitzgerald's charges and give him his due. As to my key findings on his anti-terrorism track record, the paperback is virtually identical to the hardcover edition he tried to kill.

Time for Fitzgerald to "Put Up or Shut Up"

So now, on the day after Bastille Day, I'm writing this piece to say "Bring it, Pat." Put your summons and complaint for libel where your mouth was all those months. If you think you have a viable defamation case against me and HarperCollins mount it now -- or admit that you
never should have abused the power of your office by using the civil libel laws to try and chill a journalist and publisher.

While no one invites litigation I, for one, would welcome a chance to sit across a legal conference table where you would be compelled to testify at a deposition under oath. Maybe then you'd tell the full truth about how it was that the best and the brightest in the FBI and SDNY were so outgunned for so long by al Qaeda and its master spy.

If you don't have what it takes to file that threatened lawsuit, Mr. Fitz, then at least have the honesty to withdraw your specious claim and support my call for Ali Mohamed to testify before a committee of Congress.

As Justice Brandeis said, "sunlight is the best disinfectant," and it's time for the Justice Department and the FBI to shine a light into the dark recesses of Ali Mohamed's secret life.