06/05/2009 05:12 am ET Updated May 25, 2011

The Underperformers: How Key U.S. Officials Have Shaped a Tribal Crisis

[Part 4 in a series: The Strange New Life of an Old Secret War]

A little over a year ago, I was walking down a hallway in the U.S. embassy in Bangkok, Thailand, with a retired C.I.A. operative, Bill Lair. Back in the Vietnam war era, Lair started and ran a covert war in Thailand's Southeast Asian neighbor, Laos, where he worked closely with a Laotian hilltribe, the Hmong. Now he and I were in Thailand to try to get to the bottom of a contemporary mystery - namely, why wasn't the U.S. government solving the peculiar problem of the Hmong today?

And what a complicated mess it is! In three countries, no less! A perfect trifecta of unnecessary misery! To sum up:

1. In Laos itself, a few Hmong resistance bands were still holding out against the neo-communist government, a third of a century after Lair's C.I.A. program had folded. The resistance had a few rusty rifles and a lot of women and children who spent their days foraging in the jungles for roots to eat. The time had come for the resistance to end - peacefully, with safety guarantees. But nobody was trying to end it.

2. Across the Mekong River in Thailand, a human rights crisis had erupted, out of sight of Western journalists. Both real and fake Laotian Hmong refugees were under intense Thai pressure to "voluntarily" agree to be repatriated to Laos, a country that has no system of justice.

3. In the United States, which does have a justice system - a weirdly imperfect one - prosecutors had launched a misguided terrorism court case against Hmong-American exiles. Though Hmong-Americans had given grassroots support to the beaten-down resistance in Laos, the Justice Department had hyped their capabilities. A U.S. undercover agent had helped concoct a enormous plot to overthrow Laos with heavy weapons and mercenaries that had little or no relation to reality.

It was, indeed, one helluva mess. As far as Lair and I could tell, all three parts of the tribal crisis were connected, by history, by failed policies, and by the Hmong themselves. We also thought solving any one of the three branches of the Hmong dilemma might make it a little easier to solve the others. So we had come to Thailand to work the issue of Hmong refugees - not because we were convinced we would succeed, but because it seemed worth a shot.

We walked down the embassy hallway, lined with portraits of all the past U.S. ambassadors to Thailand, many of whom Bill Lair had known. Capable men, for the most part (no women had served in that post) - and a few genuinely great diplomats. Men of substance, of character, of ingenuity, of principle, who had served their country well and who had solved problems for Thailand and for refugees from neighboring countries, too.

Boy, were we ever in for disappointment.

We were shown into a corner office whose ceiling must have been twenty-five feet high. And there we met the tall, clean-shaven official - for now, let's just call him that, an official - who was supposed to be able to answer our questions.

He said he was glad to speak with us about the Hmong dilemma - meaning, in his case, that dilemma of Hmong refugees in Thailand. He said it was important to him, both personally and professionally. In fact, when he'd had his Senate confirmation hearings, more than two thirds of the questions he'd received had been about refugees in Thailand. That's how important it was.

We briefed him. Lair and I had gone to the Thai city of Nong Khai, and met with some celebrated "jungle' Hmong leaders who were being held in detention, under threat of forced repatriation. They were still packed in the detention center, in such close confinement, under such oppressive conditions, that some of them were going crazy. Thousands more Hmong from Laos were also being held in oppressive conditions in another location.

Hoping to influence the Thai government's refugee policies, Lair had visited his brother-in-law, the former foreign minister of Thailand, to see about getting an audience with Thailand's king, the country's moral conscience. But the king's health was failing, and Lair couldn't get in to see him. And Lair didn't have much better luck with the retired Thai generals he knew. Long ago, they'd all been partners with the Hmong in the Laos war, but they couldn't be bothered to help the tribespeople now. The political chaos in Thailand - the demonstrations, the threats of coups - made our mission even harder.

Our last hope, as we explained to the embassy official, was a certain Thai military officer, a Gen. Niphat, who was in charge of the repatriation efforts, and who kept his job even when governments in Bangkok changed. We had never met Gen. Niphat, but he had done some of his training in the U.S. with the U.S. Army. Wasn't there a way to talk with him and enlist his cooperation? At the very least, maybe Niphat could open the door to international screening, to help determine which Hmong could go back to Laos in safety and which were genuine refugees who deserved protection and resettlement in the west.

The American embassy official said he knew Gen. Niphat.

Oh, really? Great! How? We asked.

From riding around in a helicopter with him for a few days after the big tsunami that hit Thailand and Burma, the official said. We spent a few days together.

Did you ask him about the Hmong repatriation issue?

No, said the official calmly.

Why not, we asked.

"He isn't at my level," replied the official serenely, as though that explained everything.

We left the embassy's air conditioning for the muggy polluted air of Bangkok's Wireless Road, and ducked into a nearby coffee shop to try to make sense of what we'd heard.

Not at my level? We were stunned. A diplomat working for a democracy - you know, where all men are created equal - who wouldn't talk to the key Thai general because of differences in rank?

Lair said sadly that the most effective ambassadors he worked with in Thailand and Laos had the common touch. "They could talk with prime ministers and kings. But they would also sit down on a curb and talk with taxi drivers, if there was a reason. They talked with whoever they needed to get the job done."

We went back to the U.S. - mission unaccomplished.

In the year that has passed since then, I have often tried to figure out what to make of this pompous and underperforming U.S. embassy official. On one hand, the problem was bigger than the man. The Laotian and Thai governments, the Hmong and Hmong-Americans were all involved, and had been for decades. Changing a dynamic like that was not easy.

On the other hand, U.S. Ambassador to Thailand Eric John - oops! Did I just mention his real name? - seems to have exaggerated his commitment to refugees, in his Senate hearings before he took up his Bangkok posting. Whether or not he lied, he still owed the senators, and the refugees, an explanation. Because he hadn't really tried making a breakthrough with the Thais on their policies toward refugees. He'd just been going through the motions.

As it turns out, underperformance and doublespeak are par for the course among U.S. officials involved in the three-nation Hmong crisis. To my mind, the U.S. ambassador to Laos, Ravic Huso, is the same kind of obstacle to progress as his colleague in Thailand. If Ambassador Huso has done anything to bring the tattered Hmong resistance to a close, peacefully, for everyone's benefit, I've certainly never heard of it. He has, however, made a breakthrough by newly exchanging military attachés with the Lao People's Democratic Republic. This means the U.S. military will be giving assistance and training to the Laotian military ... which is hunting down the last of the C.I.A.-trained resistance fighters. Go figure.

In the U.S., the single most signficant underperformer is probably McGregor Scott, until recently the U.S. Attorney for the Eastern District of California. As U.S. Attorney, he had the responsibility for vetting - for checking and signing off on - the flawed Hmong terrorism case in Sacramento before the indictments were made. If you read his press clippings, you'll find out that he knew better, because he'd prosecuted a very similar case, the so-called Lodi case, and regretted it, or parts of it, even before he went after the Hmong. But he went ahead and did it anyway.

The Lodi and Hmong cases were part of a controversial strategy, called pre-emptive terror arrests, devised by the Bush administration under John Ashcroft, and continued under Alberto Gonzalez. The theory was that the best way to prevent terrorist attacks was to arrest likely terrorists before they ever acted. In practice, sometimes this meant arresting members of immigrant groups who hadn't even thought of committing illegal acts until U.S. undercover agents persuaded them to do so. Take a look at this New York Times story from October, 2006 about pre-emptive terrorism arrests and prosecutions in the post-9/11 era. It was published eight months before the Hmong were arrested, and it profiles the Lodi case, and quotes McGregor Scott.

The pattern was the same: In Lodi, California, an undercover agent - a convenience store clerk who was paid $200,000 - ordered a young Pakistani-American named Hamid Hayat to go to a terrorism training camp in Pakistan. Hayat, a confused and not very bright kid who was trying to please everyone, obediently went off, and when he came back he was busted. There was a big press conference, and law enforcement officials, of whom McGregor Scott was one, triumphantly announced they had uncovered a California cell of al Qaeda. But no connection to al Qaeda was ever proved, and over time it turned out that some of the charges against the defendants were grossly exaggerated and others were false. An FBI veteran was so upset by the low investigative standards he saw that he worked for the defense lawyers for free.

As Scott admitted to the Times reporters, "One of the biggest mistakes that we can make is to overhype these cases on the front end. And if it is a widely held perception out there that we did that in this case, then I regret that, because that was never our intent." But hyping was his intent. As one of the Times' sources explained, "Cases are good for getting resources, good for publicity and good for morale." In other words, law enforcement teams that make anti-terror busts get high fives from their peers, and they got appropriations the next year. That's what these cases are really about - the in-house congratulations, and the departmental budgets getting approved - more than preventing terror attacks, or winning court convictions.

I've written about the oddities of the Hmong case in an earlier posting. Suffice it to say, it followed the same blueprint as the Lodi case. A government undercover agent co-created a plot to overthrow the government of Laos that the Hmong-American defendants were interested in, to varying extents, but never would have come up with on their own. After the arrests, there was a triumphant news conference. "This investigation reads like a movie script, but turned out to be reality," declared one of McGregor Scott's colleagues. In fact, the written coup plan reads like a really bad adventure movie script - according to Bill Lair and other CIA veterans of the real Laos war, who have read it and declared it unworkable, a delusional fantasy. As the case has steadily progressed through preliminary filings and hearings, more and more of the undercover agent's assertions have turned out to be riddled with mistakes and exaggerations. The defendants never bought any weapons, nor had they raised more than a fraction of the money needed for the coup. And yet for this crime that never happened the defendants could be sentenced to more than a lifetime in prison - if the case went the way the prosecution hoped. Not that this seems particularly likely.

On Monday, May 11, 2009, a hearing will be held in the Hmong "terrorism" court case in the federal court house in Sacramento, California. The defense lawyers have filed a motion to dismiss the case on grounds known as Outrageous Government Conduct. The prosecution lawyers, in their opposing motion, admit their undercover agent made mistakes and helped plan the plot for which the defendants were arrested ... but argue that encouraging suspects to commit criminal acts "is constitutionally permissible, so long as the Government has not manufactured a crime from start to finish."

I've never been able to find the part of the Constitution that permits this, though I agree that the prosecution has raised a sticky point: In a criminal case, how much of the planning for a crime do defendants have to think up themselves and still get convicted, if the government plans the rest? Do citizens have to think up the majority of the conspiracy, say, 51% ? What if citizens plan just plan 1% of the crime and an undercover agent plans 99%? Can the citizens still be found guilty? Does the Constitution say anything about that? And so on. The defense lawyers are playing offense, and the prosecution lawyers have gotten themselves in an awkward position, because the case wasn't solid to begin with.

Outside the Sacramento courthouse, in the plaza, a rally will take place, before and after the hearing. Thousands of Hmong-Americans will be there. There will be speeches. Among others, Bill Lair, the founder of the CIA's war that brought the Hmong to America, is expected to poke holes, gently and sardonically, in the prosecution's case. The celebrity defendant, Gen. Vang Pao - the commander of Hmong forces in the Laos war, and Bill Lair's protege long ago - will cause a stir as he arrives and departs, protected by Hmong security guards.

I shot some video at the previous Hmong rally in this case, and expect the May 11th rally to be the same kind of spectacle. All the Hmong-Americans will be wearing white shirts, to symbolize their collective innocence. They will wave American flags, and the old Laotian royalist flag, and they will sing the Star-Spangled Banner. Over and over. Joyfully. Without irony. They will be cheerful and polite.

And when the rally is over, if the past is any guide, the Hmong-Americans will sweep up their own trash and haul it away, and the courthouse plaza will be cleaner than it was when they got there.

And these are the people our Justice Department is calling "terrorists," and our State Department is refusing to help.

In a future episode: How a coordinated, tri-national approach by the State and Justice Departments could partly, or even totally, resolve the Hmong crisis.

Previously-published episodes in this series:
Part 1: The Weirdest Terrorism Case in America
Part 2: The C.I.A. Man Returns
Part 3: The C.I.A.'s Tribe in Danger

Videos accompanying this series to date:
The Strange New Life of an Old Secret War An overview of a federal terrorism case and its link to an old C.I.A. operation (duration 7:15)
A Tribal Resistance on the Brink A C.I.A. returns to the vestiges of a tribal force he raised, and finds it in crisis (duration 2:30)

All contents copyright 2009 by Roger Warner