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A wooden gavel and block.
A wooden gavel and block. (Carlos Bongioanni/Stars and Stripes)

Rafi Anwari had worked his way up from delivery driver to owner of two Northern Virginia deep-dish pizza shops when he was offered a job recruiting Dari and Pashto linguists to work with U.S. troops in Afghanistan during the 2009 surge. He jumped at the opportunity. He had come to the U.S. from Kabul as a refugee; he remembered how the Russian Army occupied his native country without any ability to talk to its people.

“He wanted to do something good for America,” his attorney Libbey Van Pelt said.

Over a decade later, Anwari and five others, including his wife, were accused of helping those linguists cheat on language-skills exams to win bonuses for themselves and told they could go to prison for contributing to a multimillion dollar fraud.

“Our loyalty to this country was questioned,” Anwari, 54, said in a statement. “It’s been hanging over our head,” he added, casting a shadow on celebrations of Ramadan and his daughters’ college graduations. “But I always had faith that the truth would come out.”

In late June, a judge in Alexandria federal court pronounced herself “shocked” by the case and dismissed charges against all six defendants with prejudice, meaning they cannot be brought again without an appeal.

“I’m sure there were problems in how these huge government contracts were done,” Judge Leonie Brinkema said in court, according to a transcript. But she added that if recruiters brought in unqualified candidates, it should have been discovered by the contractors before those people ended up in Afghanistan, and that there was no way for the recruiters to defend themselves after so much time: “There probably are many culprits in this case who should be prosecuted, but it’s not these people.”

Attorney Joshua Berman of Clifford Chance, who represented Anwari pro bono along with Sean Kelly and Van Pelt, said he believes the last similar dismissal in the Eastern District of Virginia was in 1983.

“It was an extraordinary moment,” Berman said. “Justice was actually done here.”

Left unclear in Brinkema’s ruling was why the Justice Department pursued a subcontractor’s lowest-level employees for alleged misconduct that came to light during President Barack Obama’s first term.

The allegations started with Obama’s 2009 to 2012 “surge” of troops in Afghanistan and the need for Dari and Pashto speakers who could be granted top-secret security clearances. Only a few thousand people across the country qualified. A small contractor called Mission Essential Personnel (MEP) suddenly had a $679 million contract. Linguists stood to make over $200,000 a year; successful recruiters got bonuses of $250 to $2,500.

Complaints from soldiers about linguists surfaced in the press, and Brinkema oversaw a 2009 suit in which a whistleblower from MEP accused multiple contractors of failing to properly screen translators. The DOJ chose not to get involved.

Scrutiny instead centered on the recruiters, mostly Afghan immigrants themselves, who found potential translators for the contracting firms and set up their initial phone interviews.

Problems were discovered at FedSys, a Crystal City subcontractor for MEP where the six defendants worked. A recruiter named Abdul Aman, after being fired by FedSys and accused of helping people cheat, sent a scorched-earth email to his superiors there and at MEP saying such fraud was rampant. The subcontractor fired the whole team of 20, including the six defendants, MEP fired FedSys, and in 2014 the Army temporarily blocked them from contracting work, according to government records.

The case was investigated by the Special Inspector General for Afghanistan Reconstruction (SIGAR), whose mission is to investigate possible fraud, waste and abuse of U.S. spending in Afghanistan. Internal documents indicate such problems were rampant and involved billions of dollars.

Aman admitted in D.C. federal court that he was having his nephew do the phone interviews for weak interpreters in 2019, and his boss acknowledged knowing about it in 2020. Both pleaded guilty to fraud, along with three colleagues, and agreed to cooperate against others.

The investigation took years in part, prosecutor Michael McCarthy told a D.C. judge in 2019, because Aman “was not truthful with us.” (Because of that dishonesty, McCarthy added, he was not going to testify at any trial). Court records also show that for several years the lead SIGAR agent was also involved in helping an Irish relative accused of murder, prompting an internal investigation.

“I don’t find any appropriate excuse for it having lingered so long,” Brinkema said in court.

McCarthy, who works out of DOJ headquarters in D.C., began trying to convince six more recruiters to plead guilty last year.

In conversations reproduced in court documents, he told one defense attorney in April 2020 that the case was “pretty black and white” and it would be “more efficient” to resolve it with a plea. As a “carrot,” he said that they could also plead guilty in D.C., where sentences tend to be lighter. If they didn’t, he said, “we would probably just go to” Virginia, a “better state for the government.”

McCarthy indicated in another conversation that he was interested in going after senior managers and the company itself, court papers say. After the phone interview, candidates were supposed to undergo in-person testing and training, and bonuses only kicked in at that point. At Aman’s sentencing, he said the case was important in part because “a $10 billion . . . contract was just reissued to a number of these same companies.”

But no company or senior manager was charged. Neither MEP nor FedSys returned a request for comment. Aman, who McCarthy called in court the “most prolific” cheater, made $40,000 in bonuses — some of it by taking credit for other people’s legitimate recruits, not by cheating the tests.

Defense attorney Greg Hunter said that if government wanted to go after bigger players, it made no sense to pressure more recruiters to plead guilty to crimes.

“You’re trying to go further up the line — why are you burning our people, turning them into felons, to use them as witnesses?” he asked. “Why not just ask them questions?”

Prosecutors did point to evidence the government said showed fraud. Interviews were set up on phone numbers that didn’t match the candidates’ numbers or where they lived. Some defendants shared translations of past test questions in emails, according to prosecutors, and some talked about taking tests for candidates.

The recruiters said that they sometimes let candidates without cellphones use theirs, and noted that people move and keep phones with their old areas codes. Phrases were shared to help candidates prepare, they said, and emails sent in a mix of languages were misunderstood. The defense argued some allegations did not make sense, with recruiters accused of cheating in languages they did not speak.

After a decade of investigation, Van Pelt said, “the government charged ... Muslim refugees of modest means, who per our work appear innocent.”

A prosecutor acknowledged in mid-June that she did not have certified translations of the emails; three weeks before trial she was not prepared to say “with 100% certainty” how the government would prove its case. At the same hearing, prosecutors moved to drop charges against one defendant without explanation.

Anwari was directly implicated by only one email, his lawyers said, which hinged on the word “take.” When a candidate said he needed help, Anwari said, “I will find same to take your test.” His attorneys said that prosecutors were themselves misinterpreting Anwari’s broken English; “take” has a broader meaning in Dari, including “administer.” Records show that candidate successfully served as a linguist for three years.

Anwari’s defense said the government pointed to a translator he had recruited who made it to Afghanistan and was later fired for poor language skills. Their research found she told investigators she was terminated after she was harassed by Afghan soldiers and then transferred to a region dominated by a difficult dialect of a language she never claimed to speak fluently.

By the time the case was set for trial, Brinkema said the government could not argue troops were endangered.

But much of the potential defense evidence was no longer available. The email server used by the contractor had been destroyed, as had full records of test scores. While the defendants intended to call as witnesses translators they had recruited, to prove they were legitimate, some were missing or presumed dead.

The five-year statute of limitations for most federal fraud cases did not apply because of a World War II-era law, the Wartime Suspension of Limitations Act, which Berman has long argued is an anachronism.

“It doesn’t make sense anymore,” he said. “We have incredible resources at the hands of the U.S. government.”

Brinkema sided with the government on the application of the law, but found that the amount of time that had passed violated the recruiters’ due process rights

The DOJ could appeal; a spokesman said they are “reviewing the court’s decision.”

Anwari “felt this country saved his life, and this prosecution really made him feel betrayed,” Van Pelt said. Kelly added, “I really believe that this ruling, and Judge Brinkema specifically, restored that idealism.”

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