Bassem Youssef, right, stands with former FBI Director Louis Freeh.
Now we learn of troubles with another Egyptian-born FBI agent, Bassem Youssef. Youssef, a Copt, is suing the bureau, the Department of Justice, Attorney General John Ashcroft, and FBI Director Robert Mueller on grounds of racial discrimination. His complaint asserts that there is a "glass ceiling" in place preventing the promotion of U.S. citizens born in Arab countries.
Further, it goes on: "No other non-Arab FBI employee with similar background and experience in counterterrorism was willfully blocked from working 9-11 related matters. In fact, numerous non-Arab FBI employees with far less experience and expertise in counterterrorism were assigned to 9-11 related work." Youssef's attorney claimed his client was sidelined for no good reason. "What you want is the most qualified person and the most qualified person was not permitted to work on the most important criminal prosecution in American history."
In addition to compensatory damages, CNN reports, "Youssef wants the FBI to set affirmative action goals for the recruitment and promotion of people of Middle Eastern descent, and an annual report on how the bureau is meeting those goals." He also wants the FBI to reinstate him immediately at his former counterterrorism position or at a higher one.
Comment: I know no details about this case other than Youssef's grievances, but the information he provides makes one wonder what he might have done to be taken off the beat (and at one point dispatched to tag and process evidence at an off-site facility). At minimum, it appears that the FBI is acting more far cautiously with Youssef than with Abdel-Hafiz. (July 20, 2003)
Jan. 18, 2004 update: I have updated my account of Gamal Abdel-Hafiz at "The Saga of FBI Special Agent Gamal Abdel-Hafiz."
Aug. 19, 2004 update: Wilfred Samuel Rattigan, a black American of Jamaican descent who converted to Islam in December 2001, while serving as legal attache in Saudi Arabia, has intitated a law suit, seeking unspecified damages, in which he charges that the FBI harassed and demoted him because of his race and religion. If that sounds unlikely, consider next the specifics of Rattigan's case, as reported by Reuters:
Rattigan charged that discriminatory behavior he faced could have compromised the Sept. 11 investigations and reflects "the ongoing legacy of racial discrimination that has roiled the bureau in past 10 to 15 years." … Rattigan said that after he became the legal attache in July 2000, he told supervisors that his office was badly understaffed. He said the FBI failed to give him enough help even though U.S. concerns about terrorism were focused on Saudi Arabia.
The 2000 attack on the U.S. warship Cole in Yemen increased the workload on his office, but Rattigan said the FBI refused to ease the burden by shifting responsibilities to other offices. And when the Sept. 11, 2001, attacks increased the workload "many fold," Rattigan said his request for additional assistance "for the most part, fell on deaf ears or was turned down."
He charged that during this time, other attache offices headed by white employees got more help than Riyadh even though they were less connected to the Sept. 11 investigation. Rattigan said that since he filed an internal complaint in May 2002, he has been continually harassed and was eventually transferred out of Riyadh and demoted.
The Associated Press adds more details:
On Oct. 3, 2001, the lawsuit claims, one of Rattigan's supervisors during a discussion about anticipated support from Saudi Arabia's own FBI-style agency said in regard to the Sept. 11 probe, "Let's see how much his [Rattigan's] Arab brothers are going to help him on this one." Eventually, Rattigan's superiors stopped communicating with him or only did so in a hostile, demeaning or condescending manner, causing him to suffer mental pain, embarrassment, humiliation and degradation, according to the lawsuit.
The FBI denied resources to its Riyadh branch because of the skin color of its agent-in-charge? Frequent critic though I am of the FBI, all the above accusations strike me as plain silliness.
Oct. 28, 2004 update: Rattigan withdrew his request for punitive damages and his case was transferred from New York to Washington.
June 19, 2005 update: After a long silence, the various Arab/Muslim cases are back in the news, thanks in part to the leak of materials from the Bassem Youssef against the FBI (on which, see the July 20, 2003 entry above). The sworn testimony of FBI managers post-Sept. 11 indicates that expertise about the Middle East and terrorism is unimportant when choosing agents to run the bureau. That would seem to explain why Youssef was repeatedly passed over for top-level counterterrorism jobs at headquarters.
June 27, 2005 update: A Time magazine story by Adam Zagorin concerns mutual recriminations between the Saudi and U.S. governments for the failure of the FBI's Riyadh office both in the run-up to and the aftermath of 9/11. Some snippets from his piece:
- In 2001 the FBI's Saudi office comprised a secretary and two agents—Wilfred Rattigan and his lieutenant, Egyptian-American Gamal Abdel-Hafiz. They also oversaw six nearby countries. … In a June 6 letter to FBI Director Robert Mueller, the Senate Judiciary Committee renewed a request for information about allegations that the FBI's Riyadh office was "delinquent in pursuing thousands of leads" related to 9/11. When the senior FBI supervisor was sent to the Riyadh office nearly a year after 9/11, she found secret documents literally falling out of file drawers, stacked in binders on tables and wedged behind cabinets, according to an FBI briefing to Congress. The process of sending classified material to the U.S. had fallen so far behind that a backlog of boxes, each filled with three feet of paper containing secret, time-sensitive leads, had built up. Since embassies must be prepared for the possibility of a hostile takeover, the rule is that officials should need no more than 15 minutes to destroy all their sensitive documents. Accordingly, the supervisor ordered the shredding of hundreds, perhaps thousands of pages, many of them related directly to the ongoing 9/11 investigation, an FBI briefer told Congress.
- In a deposition for a lawsuit filed by Bassem Youssef, the FBI's previous No. 1 in Riyadh, Mueller conceded that there were problems in the office after 9/11.
- The Judiciary Committee letter, signed by chairman Arlen Specter and members Charles Grassley and Patrick Leahy, mentioned an allegation that Rattigan and Abdel-Hafiz at one point could not be contacted by the FBI and "may have surrendered their FBI cell phones to Saudi nationals." That charge possibly arose from a working trip that the agents' colleagues say the two made to Mecca during the Muslim pilgrimage season. The pair were required to give up their FBI-provided cell phones just as an FBI official in the U.S. was trying to get in touch with them. When the U.S.-based G-man called, according to one account, a Saudi answered the phone and was asked, "Who the f___ are you?" To which the Saudi replied, "And who the f___ are you?" The committee's letter also raised the allegation that "agents on temporary duty in Riyadh were provided prostitutes." In its statement, the FBI said it had found that charge to be unfounded.
- Rattigan and Abdel-Hafiz have left Saudi Arabia, but both still work as FBI agents. Rattigan is suing the FBI, claiming that it discriminated against him on the basis of his race, religion and national origin. (He is an African American of Jamaican descent who converted to Islam in Saudi Arabia in the months after 9/11.) Rattigan at times wore Arab headgear and robes on work assignments in Saudi Arabia, as did Abdel-Hafiz, also a Muslim, which did not go down well with some FBI managers in Washington.
July 3, 2006 update: Back to Special Agent Bassem Youssef: An internal investigation by the Office of Professional Responsibility in the Justice Department "found reasonable grounds" to conclude that he was blocked from a counterterrorism assignment in 2002 and has concluded there is "reasonable cause" to believe he was the victim of retaliation by his superiors. It report concludes that the FBI blocked Youssef from a counterterrorism role at least in part because he angered and embarrassed FBI Director Robert Mueller at a meeting with Rep. Frank Wolf (Republican of Virginia), when he complained that his skills weren't being used.
Dec. 4, 2006 update: Bassem Youssef, for the first time, is speaking out against the agency. "I don't believe that the FBI's doing everything it can to combat terrorism," he told NBC News. Now running a squad that analyzes links between telephone calls, the Communications Analysis Unit, far from counterterrorism's frontlines, he complains that "To be totally set aside, blackballed since 9/11, makes absolutely no sense." Youssef told NBC why he complained to Rep. Wolf: "I had gone through every possible channel that I could think of within the [FBI] family, and nothing was done."
Sep. 28, 2010 update: The wheels of justice turn slowly in the United States and Youssef's 2003 case has only now reached the courts, where a federal jury heard his claims, as Spencer S. Hsu explains in the Washington Post:
On Monday, a jury before U.S. District Judge Colleen Kollar-Kotelly in Washington ended one strand of litigation entangling the parties, denying Youssef's claim that the FBI denied him opportunities to qualify for promotion in 2004 and 2005 because of his whistleblowing. Nevertheless, Youssef returned to work Tuesday as head of an FBI technical unit that analyzes telephone and electronic communications for terrorism clues. He also will continue to pursue his related legal claims that bureaucratic pride led the FBI to discriminate against or ignore Arabic or Muslim experts and deny his promotion or transfer. …
In court, government lawyers played down Youssef's record, describing a chronically depressed and impolitic - if not angry - functionary who became bogged down in litigation, missed work and lost sight of the FBI's elite counterterrorism division's mission to protect the public. The seven jurors agreed, finding that the FBI did not deny Youssef assignments generally required for promotion to top posts because he met in June 2002 with Rep. Frank R. Wolf (R-Va.) - who oversaw the FBI's budget - to air his concerns.
Then things get interesting:
At the time of the Sept. 11 attacks, however, Youssef was not recalled to FBI headquarters. Supporters say he was mistaken internally for a Muslim agent who refused to wear a wire in an FBI investigation. An internal FBI review indicated that superiors revoked Youssef's transfer to a terrorism investigations section after his meeting with Wolf.
Feb. 3, 2011 update:Youssef's case appears finally to be finished, eight years after it began: "Judge Denies FBI Agent New Trial in Retaliation Suit."
A federal judge in Washington yesterday denied the FBI's highest-ranking Arab American agent's motion for a new trial on claims the bureau retaliated against him for reporting alleged discrimination. … At trial in September in Washington's federal district court, Youssef's lawyers, including Stephen Kohn of the whistleblower shop Kohn, Kohn & Colaptino, argued the FBI blocked Youssef's career advancement, including delaying for two years his completion of training opportunities necessary for so-called "inspection certification." That certification helps agents in future promotion efforts.
Justice Department lawyers representing the bureau said at trial, according to court papers, that FBI officials denied Youssef permission to participate in training activities because he had already missed too much work since his transfer into a new unit. In her ruling Wednesday, Judge Colleen Kollar-Kotelly said "there was substantial evidence in the record at trial suggesting Youssef was not actually harmed" by the denial of his requests to go on inspections in January and February 2005.
June 7, 2011 update: Catching up on the Rattigan case: He won a $300,000 verdict, the Department of Justice appealed, and the U.S. Court of Appeals vacated the judgment in a ruling June 3 on the grounds that the jury instructions were flawed.
July 10, 2012 update: The three-judge U.S. Court of Appeals for the D.C. Circuit ruled in the Rattigan case to limit the scope of government liability in an FBI agent's retaliation suit against the bureau.
Jan. 29, 2014 update: Bassem Youssef first sued the attorney general et al. in July 2003, a case which he lost in February 2011. No sooner was that over than he sued the attorney general, now Eric Holder, later in 2011, now claiming, Ryan Abbott reports for Court Room News, that "he was denied an assistant section chief position in the FBI's Counterterrorism Division Communications Exploitation Section because of his race and because of another Equal Employment Opportunity complaint he had filed in 2003." In other words, this is a second case by Youssef, similar in outline to the first, with the same judge presiding, but differing in specifics - position and personnel.
U.S. District Judge Colleen Kollar-Kotelly today issued a 53-page ruling saying that the bureau's choice of another candidate for the job was not discriminatory. "Although Youssef may believe the [hiring] board should have been more impressed with his credentials, the board was entitled to form its own opinions concerning the relative value of his experiences."
Comment: Can't wait for the next lawsuit to allege discrimination because this just-concluded one was underway when Youssef was again denied the promotion he feels he deserves.
Aug. 6, 2014 update: U.S. District Judge Colleen Kollar-Kotelly just ruled that, in the Courthouse News explanation, "she won't reconsider allowing a retaliation claim against the Department of Justice head Eric Holder, even though the agent's national origin discrimination claim got the axe." Meaning that she "granted the FBI's motion to dismiss the national origin discrimination claim, but allowed the retaliation claim to stand." Or in her own words:
Although based on the same factual events, plaintiff's national origin discrimination and retaliation claims are two separate claims for which plaintiff presented distinct sets of evidence. While the Court found that plaintiff failed to meet his burden and present sufficient evidence to create a genuine dispute as to whether the selection committee was actually motivated by discriminatory animus, the Court found that plaintiff did meet that burden as to his independent retaliation claim. In contrast to plaintiff's national origin discrimination claim, plaintiff was able to present more evidence of a potentially retaliatory motive such that a reasonable trier of fact could find that defendant's legitimate, non-discriminatory reason was pretext for retaliation.
Because Youssef's two cases overlap, I asked a friend with legal training to explain the situation and this is the result:
Youssef brought two cases in federal court in D.C. after he had brought EEOC claims. They sound identical, but differ on the facts presented. In fact, in the second of the federal court cases, the FBI argued dismissal of the case on the ground that Youssef hadn't yet exhausted his administrative remedies, as EEOC claims are administrative, because decisions hadn't been rendered in those cases; the judge denied the FBI's motion on that issue because the law is unsettled in that district.
Youssef brought the first case in federal court in 2003 under Title VII. In the judge's March 30, 2008 opinion (which provides good background on this case) she dismissed Youssef's claims about discrimination, but allowed those concerning retaliation. The trial on the latter was held in September 2010. He lost that case definitively in February 2011.
Youssef quickly brought the second case in federal court, on July 25, 2011, also under Title VII. The claims sound identical to the claims he alleged in the 2003 case. However, these claims relate to a different set of facts - a different position that he did not get, different agents who are alleged to have discriminated against him, etc. This case was assigned to the same judge who presided over the 2003 case, Colleen Kollar-Kotelly.
In the second federal court case, the judge's January 28, 2014, opinion dismissed Youssef's discrimination claims, but allowed him to proceed on the retaliation claims. (Incidentally, this is the same outcome as in the 2003 case: dismissal of discrimination claims but allowing retaliation claims to go to trial.) Her August 1, 2014, decision deals with the FBI's motion for reconsideration of that decision; in it, she affirms that earlier opinion. In other words, the judge says Youssef put forth enough evidence for the retaliation claim to proceed to a trial. So there will likely be a trial in the 2011 case.
Aug. 28, 2014 update: Rattigan is outraged at not being short-listed for the position of commissioner of police in his native Jamaica. Watch out, as he might sue again, though this time presumably not on charges of racial discrimination.
Mar. 17, 2015 update: The Rattigan case, now 14 years old, still rattles on.
The D.C. Circuit Court has ruled that he cannot pursue a retaliation claim against supervisors concerned that he'd "gone native" while on assignment in Riyadh, Saudi Arabia. Lorraine Bailey recapitulates for Courthouse News, starting with Rattigan's October 2001 accusation of racial discrimination against his supervisors in the FBI's Office of International Operations:
One month later, the FBI sent Special Agent Donovan Leighton on a short assignment to Riyadh where he grew suspicious about Rattigan. When he returned, Leighton filed a memo with Rattigan's supervisor, who passed it to the FBI's Security Division, saying that Rattigan occasionally wore Saudi national clothing given to him as a gift by Saudi security officers, raising the concern he had "gone native."
It also reported that Rattigan's Saudi colleagues were attempting to find him a "suitable wife," that he hosted wild parties that may have included prostitutes, that he paid little attention to the FBI's investigation of the 9/11 attacks, and that he took an extended leave to make a pilgrimage to Mecca with his Saudi colleagues, during which time he could only be contacted through the Saudi security services.
Rattigan conceded that he sometimes wore Saudi clothing, that his Saudi colleagues claimed to be looking for a wife for him, and that he traveled to Mecca, but said Leighton presented the facts in a deliberately misleading manner.
The FBI's Security Division began an investigation based on Leighton's memo, but found Rattigan's alleged security risk "unfounded."
Rattigan then filed a civil rights suit in D.C. federal court accusing his supervisors of retaliating against him for forwarding the memo to the agency's security division.
Back to the present:
a federal judge dismissed his case, and the D.C. Circuit affirmed last week, because Rattigan cannot show that Leighton had a retaliatory motive in reporting false information.
"Motive and knowing falsity must united in the same period," Judge Stephen Williams said, writing for the three-judge panel. "But there is no evidence that Leighton, who was not the object of Rattigan's original discrimination claim, had any unlawful retaliatory motive when he documented his concerns."
Furthermore, Rattigan offers no evidence that his supervisors encouraged Leighton to write the memo, or to include the inflammatory allegations.