Trump Advisor Sebastian Gorka Contributed to the Tsarnaev Case, and the U.S. Attorney’s Office Lied About It

Update 2/22/17: Due to some concerns about the validity of the U.S. Attorney’s statement as reported in the Fusion article, I have reached out to the article’s author to see if I can obtain any clarification about what was said. I will update this post if I receive a reply.

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It’s not exactly news that the last few weeks of American politics have been chaotic ever since the Republican administration took office. From the discriminatory Muslim travel ban that is being repeatedly struck down in court, to combative White House spokespeople and fast-developing scandals, it’s been the least organized time in government since perhaps the immediate aftermath of 9/11.

However, I’m not here to talk about the new president or his policies. Instead, I need to tackle something that has been flying more or less under the radar until a few days ago: the appointment of a man named Dr. Sebastian Gorka to the White House’s National Security Council.

While I had known about his appointment at the end of January (and I’ll explain how I discovered it in a moment) I had not heard or seen his name mentioned in the media until the end of last week. In the scramble of the much vilified free press to keep the new president in check, many news outlets are digging into the background of his Cabinet picks and scouring for anything that would reveal them to be prejudiced or discriminatory. This seems especially exuberant in the wake of allegations that Steve Bannon, chairman of Breitbart News, an “alt-right” news site that has been accused of publishing anti-Semitic, misogynistic and Islamophobic propaganda is the real one calling the shots in the White House. It has been reported that Bannon was the person, along with Stephen Miller, to specify the Muslim ban applied to people already holding valid visas and green cards, and also that his appointment to the National Security Council by President Trump may have been accidental. Time Magazine‘s latest issue featured a ghoulish photo of Bannon on the cover, calling him “The Great Manipulator.”

Sebastian Gorka appeared to me in this narrative at the end of last week. An article published by USA Today on February 9th titled “Bannon, Flynn and Sessions: How Trump’s top advisors view Muslims, in their own words” includes several excerpts of an interview with Gorka from Steve Bannon’s radio show. All of them demonstrate Gorka’s vastly flawed understanding of Islam as a religion:

“The dirty little secret, Steve, that nobody wants to tell you, (is) what the bad guys do — what al-Qaeda does or what ISIS is doing right now — is not fundamentally un-Islamic,” said Gorka, who at the time of the April 2016 show was a Breitbart writer but today is a deputy assistant to the president.
…
In the April interview, Gorka and Bannon describe the basis of their beliefs about Islam and other world religious. Gorka laughs when Bannon mockingly notes that former president George W. Bush said Islam “means peace.”

“Let me tell you how it means peace,” Gorka says. “The word Islam actually means submission. It means surrender. Surrender to what? The will of Allah. The only way it means peace is a derivational way.”
…
“How bloody, how nasty, how divisive … how awful is it going to be?” Bannon asked his guest.

“You have to go to war,” Gorka replied. “You cannot win if you do not go to war, and we have not gone to war. That’s the reality.”

As the article notes, Gorka was a writer for Breitbart News. In fact, he has been billed as their senior editor in matters of national security, and was also a correspondent for Fox News, which has long taken criticism as an inaccurate and inflammatory ultra-conservative outlet.

I’ve written about Islamophobia before and the significant role it played in Dzhokhar Tsarnaev’s conviction, so I hope I do not have to revisit just how wrong-headed Gorka’s opinion of Islam is. Even these few quotes demonstrate Gorka’s ignorance on the topic as well as his hateful attitude: there is nothing ambiguous about his conflation of the entire religion with violence, and the desire to “go to war” to stamp it out. Unsurprisingly, although he has affixed “Doctor” to his title, I discovered his PhD is in political science, not Islamic studies. This does not give him blanket qualification to discuss the religion’s nature or what its adherents fundamentally believe. Even so, it doesn’t surprise me that this is his opinion, which eerily echoes the assertions the prosecution team made at Dzhokhar’s trial almost two years ago.

Why? Because they consulted Dr. Sebastian Gorka when preparing Dzhokhar’s case in 2014.

Gorka’s name has been familiar to me for some time. About a year ago, when reviewing unsealed court documents, I noticed that on top of Dr. Matthew Levitt, whose testimony for the government I analyzed here and here, the government also filed two additional reports on Dzhokhar’s “radicalization.” One was by FBI analyst Evan Kohlmann, who discussed the content of the jihadist materials and websites accessed from Dzhokhar’s computer, and the other was by Gorka, who discussed social factors. Back then, I only scanned them briefly, but stumbled back upon Gorka’s a couple weeks ago when organizing my court files. Since I’ve long been skeptical of Dzhokhar’s supposed radicalization as told by the government — my discussion of such dates back to the conclusion of the trial, and I still hold firm to that opinion — I wanted to focus on what Gorka had to say. I didn’t know anything else about him other than he’d been listed in government filings as an expert.

In reading the report, even though I’ve become largely desensitized over time to the outrageous claims by the government, I was shocked. For years I’ve been wondering where the prosecution got some of the more outlandish claims about Dzhokhar’s radicalization. To be fair to Dr. Levitt, the sole witness who testified about radicalization, he never spoke to anything specifically related to Dzhokhar aside from the content of the “jihadist” propaganda from his laptop and the note found in the boat after his arrest. Yet there were assertions made by the government that Dzhokhar’s radicalization spanned back years to when he was in high school. This theory was so preposterous it led Dzhokhar’s math teacher Eric Traub to scoff “No, I don’t” over the government’s objection when defense attorney Miriam Conrad asked him if he thought Dzhokhar’d had him “fooled.”

Yet here was that very conclusion, written by Sebastian Gorka with utmost confidence. The report is 37 pages long, and the longer I read, the more I realized I was beholding the architect of the government’s case against Dzhokhar. You can view the report in its entirety here.

Although Gorka never took the stand to testify, the report was in the government’s filings, and the ideas expressed there were unmistakably present in the transcripts I’ve poured over for years. For example, in discussing motive, he reported:

In the case of the Tsarnaevs, one can point to geopolitical events that may have contributed to the process of radicalization, or at least accelerated it, such as the success of Islamist forces in Syria or the renewed fighting between Israel and Hamas, but the only tangible similarity between this incident and other acts of jihadist violence is the ideology shared by the perpetrators, the narrative of an Islam infected by Western influence and a loss of faith; the oppression of Muslims; the need to re-establish a theocratic system of governance; and action to punish the infidels and destroy their un-Islamic systems. (26)

This is rhetoric I have long come to expect from the prosecution’s theory of the case, offering not only a vague understanding of Middle Eastern conflict, but conflating every Islamist struggle with one another, regardless of national origin. Also absent is what any expert on the Caucasus would surely include as a potential motivating factor: the long and bloody opposition to Russian rule in Chechnya spanning back centuries, culminating in two brutal wars occurring during both Tamerlan and Dzhokhar’s lifetimes. Finally, the underlying current of Islamophobia — harping on the “only tangible similarity” being the “ideology shared by the perpetrators” as if that could offer a plausible explanation — is all too similar to the narrative threads presented by the government at trial.

So incensed was I while reading this report that I stopped midway to google Gorka and figure out how he could possibly hold a PhD. This was January 27th. That’s when I learned about his Fox News and Breitbart ties, and saw the news story that he had just been appointed to the White House. Apparently, since his days consulting Dzhokhar’s prosecution team, he’d been busy. He even authored a book in 2016 with a flashy name and flashier title, whose thesis seems obvious.

And now he would be advising the highest authority in the land.

However, the real kicker came this weekend. My email news alert caught an article from February 10th, delivered to me on Saturday morning when, after seeing the USA Today article, I was considering writing this post to discuss Gorka and his connection to the case.

It was from a news site called Fusion: “Trump adviser who claimed to be an expert witness in Boston bombing trial never actually testified.”

It seemed someone had beaten me to it.

Raw Story also picked up and summarized the story: “Trump staffer has lied for years about his role as ‘expert witness’ in Boston Marathon bombing trial.” Both articles are more focused on Gorka and his apparent falsehoods than what his involvement might mean for the case, which is understandable. Outside of a legal context, the trial is over and done with, whereas the breaking stories are about how many people with close ties to Trump might be hiding something. Based on their findings, perhaps Gorka did exaggerate his active role in the trial. As Fusion writer Anna Merlan notes:

An archived version of The Gorka Briefing from 2015, however, shows that Gorka claimed to have served as an “expert witness” in the Tsarnaev case. That claim is repeated in his biography on the website for the Washington Speakers Bureau, where he’s available for paid speeches on security issues: “Gorka served as an expert witness in the Boston Marathon bombing trial.” The same claim is made in numerous other official bios. In another speaker bio available in numerous places—including the Gorka Briefing—Gorka is described, more accurately, as having served as “as a subject matter expert for the Office of the US Attorney in Boston for the Tsarnaev trial.”

On Fox News, Tucker Carlson has also presented Gorka as an expert witness in the case: “Our next guest was actually involved in the case,” Carlson said, in a Fox segment that aired in May 2015. He describes Gorka, again, as an “expert witness for the prosecution” in the trial.
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While it’s certainly the case that Gorka was being considered as an expert witness, he clearly didn’t make the cut for the Big Show, which—given the frequency with which he has claimed to have taken the stand—must have come as something of a disappointment.

The most shocking part of the article is not Gorka’s self-aggrandizement. Rather, it is Fusion’s reported response from the U.S. Attorney’s office: when contacted, they flat out denied any involvement with Gorka in the prosecution’s case against Dzhokhar. As the article states:

But according to an official in the office of the U.S. Attorney in Massachusetts, Gorka never testified at the trial and prosecutors didn’t rely on his expertise in preparing or presenting their case.
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The U.S. Attorney’s office in Massachusetts confirmed to us that while Gorka’s name appeared on a list of “potential witnesses,” he was in fact never called to the stand, and the briefing materials he submitted were never used in any way during the trial.

“He was certainly on the list of potential witnesses,” an official with the U.S. Attorney’s office said. “But he was never called, nothing he gave us was ever used.”

This is unequivocally false.

When I consulted my father, lawyer Tom Frizzell, about the U.S. Attorney’s statements, he said that merely the fact that Gorka’s report had been filed by the government — and not only filed, but filed deliberately under seal — was evidence that the government did indeed use his report to prepare the case. In fact, the report itself is dated September 2, 2014, but was not filed by the prosecution until December 23, 2014 — barely two weeks before the trial’s start on January 5, 2015. It certainly seems as though the team had plenty of time to use it as a reference point and then took deliberate care to file close to trial so that it would be on record. As Dad explained:

The preparation of the case in chief is always reliant upon the testimony of the witnesses that you intend to call to testify. You prepare the case so that you can get your experts’ opinions and work product into evidence. Gorka did give written testimony to the prosecution. They wouldn’t file non relevant material like the menu from a Chinese restaurant, would they?

Additionally, in looking back through the court documents, I found a memo written by the prosecution team to the defense dated August 1, 2014, directly stating that Gorka was on their list of intended expert witnesses:

If it’s a little difficult to read the screen capture, it is the first page of a discovery disclosure from the prosecution to the defense. It names “Mr. Evan Kohlmann, Dr. Matthew Levitt and Dr. Sebastian Gorka” as “experts who specialize in the study of terrorism” who “will provide expert testimony” in the area of “terrorism and geopolitics”(2). On the following page, the memo adds:

C.V.s for each of the experts are enclosed, along with lists of their relevant publications and some additional documents. … Each of the experts has employed social scientific skills and methodology to develop a basis of knowledge that is reliable and will be helpful to the jury. … Each of the witnesses has been recognized as an expert by colleagues around the world and two by various federal courts. To the extent that the witnesses provide opinion testimony, they will do so based upon their qualifications and experience, the evidence provided to them in this case, and the facts as alleged in the indictment and presented at trial. (3)

This indicates that in no uncertain terms the prosecution team was familiar with Gorka’s record and liked what they saw. They admit to providing him with evidence materials and planned to use him to give context to their case. You can view the entire memo here.

As if that wasn’t enough to disprove the U.S. Attorney’s own statements to Fusion, there is also the fact that even without much reflection, I saw clear parallels between Gorka’s report and assertions made by the prosecution team at trial. For example, on page 27 of Gorka’s report, he states:

According to the documents provided and written by the Defendant, his progress toward the religiously justified use of terrorist violence was not rapid or sudden but the result of several years of radicalization.

Again, this statement confirms from Gorka’s end that he was in contact with the prosecution team and they provided him evidence to review. His resulting analysis was likewise used in the prosecution’s opening statements in the guilt phase, delivered by lead attorney Bill Weinreb:

The defendant’s transformation into a terrorist took place over a year or two. In 2011, he started reading terrorist writings and posting online messages about the persecution of Muslims. (10-11)

While the prosecution continues their infuriating use of vague timelines, they are regardless reaching back to Dzhokhar’s high school years as a start date for the radicalization process. This is a claim that was so dubious that I remember it striking me as unlikely during the guilt phase, long before my involvement in the case began.

Additionally, Gorka’s assertions about Dzhokhar’s written assignments were especially confident:

This [estimate of radicalization] is supported by the open sentiments expressed in several of the high school papers he wrote. (27)

This is echoed by the prosecution’s opening statement:

And you’ll hear about other things that the defendant said and wrote that shed light on the sources of his terrorist beliefs. Some of those are papers he wrote for school, and some are things he wrote to friends and emails and text messages and posted on social media. (32)

I’ve written at length about the many ways in which the government misrepresented a few otherwise harmless Tweets from Dzhokhar into “terrorist beliefs,” so I’m not going to rehash that argument here. However, I do want to dive in a little deeper to the statements in Gorka’s report, particularly what high school assignments he presented as proof of Dzhokhar’s radicalization.

There are several statements made by Gorka about Dzhokhar’s homework assignments that strain credulity. For example, he claims:

For the Defendant, Chechens are “Spartans” who are “undefeatable,” typified by Tsarnaev’s grandfather who fought the Russians and whom he calls a hero in his Student Questionnaire. In the same questionnaire he is adamant: “I am not an American”. (26)

Other than unnecessarily vilifying Dzhokhar’s Chechen heritage, Gorka does not bother to consider practical alternatives to the supposed missives of an inflamed radical — such as the fact that while in high school, Dzhokhar had not yet obtained U.S. citizenship. However, these wackier inferences, to my knowledge, did not worm themselves into the government’s case at trial. Perhaps even they realized how easy it would be for the defense to poke holes in them. Regardless, they do mention “papers” in the plural during their opening statement, suggesting maybe an earlier version of their case wanted to discuss more of them.

However, there is one high school paper of Dzhokhar’s was was subjected to much scrutiny — or, at least, the mention of it was. During the guilt phase, the government offered as evidence a high school paper Dzhokhar wrote titled “The Predator War” about the danger caused by U.S. drone strikes. From the government’s perspective, because Dzhokhar expressed displeasure at the use of drones to kill targets in Pakistan, this was a sign of his radicalization. So absurd was this notion that I discussed it in my August 2015 post about the rampant Islamophobia in the courtroom. Unsurprisingly, Gorka seems as though he is the source of this opinion:

Then in his two papers on the book Ask Me No Questions by Marina Budhos, the Defendant agrees with and amplifies the argument that the events of September 11th 2001 led to a “dehumanization” of Muslim immigrants in the US and the broader Muslim world, and in his essay The Predator War, he calls the US use of drones “basically murder” which could spark a “rebellious movement.” (27)

There’s nothing about Dzhokhar’s opinions here that strike me as anything other than intelligent and insightful about the backlash certain counter-terrorism policies are bound to have in America and around the world. In an attempt to combat the claim that this was a sign of radical ideals, the defense called the teacher of that class, Rachel Otty, to testify during the penalty phase. She revealed that Dzhokhar did not seek out the topic of drone strikes himself, nor even thought of the provocative title. Judy Clarke inquired:

Q. Do you recognize that paper?
A. I do.
Q. Is that something that — well, tell us about it.
A. Okay. It’s — students had to read an article from the New Yorker magazine. This was an article from 2009 called “The Predator War.” It was written by Jane Mayer, who’s a journalist for the New Yorker. And the piece is about predator drones, and it was an article about the predator drone program. And so students read the article and then I provided a list of questions for them to answer. And so this is what a student would turn in in response.
Q. And what does this appear to be? Jahar —
A. Yeah, this looks like this is — this was a homework assignment. This would be something that he would have turned in. (115-116)

In essence, the only alarming thing to Gorka about this assignment is that a Muslim had written it. Also, although the novel Ask Me No Questions never came up at trial, I have read it, and have been finding the mention of it here ironic. It’s about a fictional Muslim family’s struggles as undocumented immigrants in New York City after 9/11. They and many other Muslim immigrants were forced to sign up for NSEERS, a Bush-era Muslim registry meant to monitor for terrorist activity. This was the program that Obama shut down in 2011 after it was revealed that it was both expensive and had caught exactly zero terrorists. It is also the program Trump has stated he would like to turn back on, causing such protest in the weeks after the election that Obama dismantled the framework to prevent it. So in essence, Dzhokhar’s agreement with the message of the book — that a registry is bad and dehumanizes Muslims, an opinion shared with millions of Americans concerned with human rights, enough to make the president act — was a sign of radicalization to Gorka.

In another parallel to my previous post about Islamophobia, at that time I took a hard look at the roots of post-9/11 US counter-terrorism policy. As you may recall, I found that much of the current policy pulls from a flawed foundation put forth by two intelligence reports from the FBI and the New York City Police department. In my post, I wrote that it was possible that the NYPD’s 2007 report, Radicalization in the West: The Homegrown Threat authored by Mitchell D. Silber and Arvin Bhatt, may have been used as a basis for the prosecution’s case in Dzhokhar’s trial. Therefore, I was not surprised to find that in his report, Sebastian Gorka cited Silber and Bhatt as a reliable source:

Despite the existence of important works such as Marc Sageman’s Understanding Terror Networks and the contribution made to the discussion by the NYPD report Radicalization in the West: the Homegrown Threat there is no one pattern to how a non-violent individual becomes a member of the Jihadist Movement willing to execute terrorist acts. (25)

Additionally, his statement is completely untrue: there is plenty of scholarship on the radicalization process, including sources I’ve cited in my own writing; it’s simply clear that Gorka hasn’t bothered to find them. Amusingly, he also provides a chart that rivals the nonsensical nature of the ones from the FBI and NYPD intel reports:

On top of the chart being impossible to parse and an eyesore to boot, I can spot glaring errors in terminology: it’s called a “terrorist cell,” and “terrorism attack,” and I’ve never seen a target referred to as an “infidel state.” In terrorism studies circles, the common terms to identify governments and terrorist groups are “state actors” and “non-state actors,” respectively. Not only does “infidel state” make no sense, it’s also obviously banking on the idea that only Muslims can be terrorists, which is ignoring a large swath of the discipline. (And how about that misspelling of “intermediary?”)

Yet Gorka clearly loves using the word infidel, as shown in his bafflingly unfounded opinion of Dzhokhar’s motives:

His family background in Russia contained the elements of a Muslim community ruled and persecuted by an un- Islamic leadership — the infidel regime in Moscow — and at the personal level, with the move of the Tsarnaev family to the US, the Defendant was in the position to have to chose between emigration to a Muslim land or jihad against the infidel state in which he lived. (13)

For the record, the only desire to emigrate I’ve been able to find in Dzhokhar’s communications was away from UMass Dartmouth. This notion that he was somehow torn between leaving America or attacking it is a fabrication entirely of Gorka’s own.

Finally, Gorka names what he believes to be the aim of the bombing, capitulated entirely from the sparse and nearly senseless lines attributed to Dzhokhar after his capture from the boat:

The narrative written in the boat where the Defendant was apprehended after the bombing cannot be read in any way but as the testimony of an individual who has knowingly participated in terrorist acts because he subscribes to the ideology of global Jihad and wishes to kill for this cause and so receive eternal rewards. (26)

This very motive is brought several times throughout the prosecution’s opening statements, each one harping on the connection between the acts and the Islamic concept of paradise. It appears at the beginning:

Those writings and lectures convinced him that he should kill innocent Americans in order to punish the United States for mistreating Muslims in other countries. And by doing so, he thought he would earn a place in paradise, which explains what happened next. (5)

This is then repeated later thereafter:

The defendant acted that way because he believed that what he had done was good, was something right. He believed that he was a soldier in a holy war against Americans and that he had won an important victory in that war by killing Martin Richard, Lingzi Lu, and Krystle Campbell. And he also believed that by winning that victory, he had taken a step toward reaching paradise. That was his motive for committing these crimes. (9)

It also wraps up the argument at the end:

He used weapons of mass destruction at the Boston Marathon to terrorize the country and to influence American foreign policy. He used guns and bombs in Watertown to continue his campaign of terror, and he did it all because he believed that America needed to be punished for killing Muslims overseas. He did it to advance a cause that he believed in. And he did it because he thought it would help secure him a place in paradise. (34-35)

All in all, it’s easy to see how the Islamophobic roots of the prosecution’s case came from the seeds planted by Gorka — or at the very least, fertilized by him. While it’s possible not all of this came directly from Gorka, the other option is that the prosecution themselves started out with these ideas and then went in search of someone who would rubber-stamp them. Given Gorka’s background, he would have been all too willing. The only preposterous concept here is that somehow, years later, the U.S. Attorney’s office could claim they had no involvement with Gorka’s “expertise.” Somehow, we’re supposed to believe they used absolutely nothing that he provided them — even though his report is filed on record and the correlation between Gorka’s opinion and the prosecution’s case are evident.

So why deny it? Why, when the evidence to the contrary is so glaring, and simply admitting that he was one consultant of many would undoubtedly be easier for everyone to swallow?

The answer is the way the wind is currently blowing politically. Two years ago, the general public was less aware of Islamophobia, and less likely to believe that a respected office of the law such as the federal district court, at the center of the liberal bastion that is Boston, Massachusetts, would stoop to tactics so low to secure a conviction, never mind a death sentence. I know that’s how I felt at the time, almost unable to believe my own eyes and ears. That has all been changed with the rise of Donald Trump and the return to a Republican administration. Two weeks ago, Copley Square, a mere block away from the Marathon finish line, became the site of a pro-Muslim and pro-immigrant rally, attended by an estimated 20,000 people (me included) after being organized in less than 24 hours. Just a week before that, over 120,000 people marched from the Boston Common, again only blocks from the finish line, to celebrate women and other marginalized groups, Muslims featured prominently among them.

For the U.S. Attorney’s office to admit ties to a figure so toxic is suddenly political suicide — whereas two years ago, they thought no one would be watching as they buried a young Muslim man under prejudice after prejudice for their own gain. Now, there’s a lot more people watching who are ready to act.

In the mean time, what is to be done with a man like Sebastian Gorka in the White House? Others are asking the same question. In researching this post, I found other investigative articles scrutinizing Gorka’s credentials. Among them is a site called Talking Points Memo. In one article titled “Did Gorka Really Wear A Medal Linked To Nazi Ally To Trump Inaugural Ball?“, they called attention to Gorka’s inaugural attire:

Although the outfit might not raise any flags with Americans, according to author Allegria Kirkland, those of Hungarian heritage like Gorka had cause for alarm:

András Biro-Nagy, a professor at Budapest’s Corvinus University, where Gorka did his Ph.D. studies, said that the “bocskai” he wore was popular during Horthy’s rule and today is often worn by members of the “right-wing” on special occasions. But he noted the medal has a distinct connotation.

“The medal is a clear sign that he sympathizes with the Horthy era—this medal was awarded as a state honor only between 1920 and 1944,” Biro-Nagy told TPM.

Miklós Horthy, Kirkland notes, was an “anti-Semitic World War II-era leader whose regime witnessed the murder of some 600,000 Hungarian Jews.”

In another article called “How Did Sebastian Gorka Go From The Anti-Muslim Fringe To White House Aide?“, Kirkland contacted scholars in the fields of counterterrorism and Islamic studies, inquiring about Gorka’s fitness for his position on the National Security Council. She received some interesting responses:

“I’d heard the name once or twice but he’s not a major figure in the field. He’s not someone whose work one needs to know to be conversant in these issues,” Stephen Biddle, an adjunct senior fellow for defense policy at the Council on Foreign Relations and professor of political science at George Washington University, told TPM.

Biddle added that Gorka is not “in the reasonable mainstream.” Omid Safi, director of Islamic Studies at Duke University, was much more biting in his assessment, labeling Gorka’s book “propaganda.”

His critique becomes harsher later on, speaking of Gorka’s book Defeating Jihad, the Winnable War:

Safi, of the Duke Islamic Studies Center, argued that the scholarship Gorka presented in his book was shoddy and took ISIL’s claims that they represent the true version of Islam at face value, thus fueling the group’s narrative of a war between East and West.

His book “is like reading a bad high school student’s paper that has been cribbed together from Wikipedia, and that’s with all due respect to Wikipedia,” Safi said.

Funny, that’s exactly how I felt reading his report.