SACRAMENTO, Calif. — Whether the alleged plot by Hmong leaders in the United States to violently overthrow communist Laos would have succeeded is irrelevant to the charges against them, federal prosecutors contend.
"The issue isn't whether the coup attempt would be a success," wrote prosecutors Robert Twiss and Ellen Endrizzi in a brief opposing the defendants' motion for release on bail. "The issue is whether the defendants agreed to a course of conduct which would have killed and injured untold numbers of people.
"The answer is yes, and because it is yes, the defendants present a danger."
In a separate motion, Twiss and Endrizzi seek to quash a defense subpoena of an Alcohol, Tobacco, Firearms and Explosives agent who went undercover as an arms dealer to negotiate the sale of sophisticated weapons to the defendants.
Defense lawyers want to question the agent under oath at Thursday's hearing on their motion for pretrial release of their clients.
But the prosecutors claim there is a "fear for the life and safety of the undercover agent, his spouse and children, should his identity be made known any earlier than absolutely necessary."
"The defendants have no legal right to question the undercover agent at a bail hearing, and the prospective testimony of the undercover agent is not relevant to any issue before the court," the prosecution motion says.
Some defense lawyers have argued in bail hearings that the defendants pose a danger only to Laotians, and conditions of release can be fashioned that would negate that danger, such as electronically monitored house arrest and no access to computers, phones and persons other than family members.
"Defendants are a danger if they kill people in foreign countries," Twiss and Endrizzi maintain in their 14-page brief opposing release, which was filed late Monday night. "The fact that the violence targeted Laos doesn't make the defendants any less dangerous."
All 11 defendants are charged in Sacramento federal court with conspiring to violate the Neutrality Act by planning to overthrow a country at peace with the United States, conspiring to kill and injure people in a foreign nation, conspiring to obtain firearms and destructive devices, and conspiring to export items without a U.S. State Department license.
Nine of the 11 are charged with conspiring to obtain Stinger missile systems designed to bring down aircraft.
They all face maximum sentences of life in prison.
The prosecutors' brief is in response to the consolidated motion on behalf of all the defendants asking U.S. District Judge Frank C. Damrell Jr. to make a finding that terms of release on bail could be imposed that would wipe out the element of danger.
So far seven of the defendants - including their leader, 77-year-old Gen. Vang Pao - have been denied bail after hearings before two U.S. magistrate judges.
The other four are being held without bail pending hearings. All of them are in the Sacramento County jail.
In a defense motion submitted last week, defense lawyers argue that their clients' scheme was so improbable and inept they pose no danger to others.
The lawyers also allege that the undercover agent "created" the plot and orchestrated the acts enumerated in the grand jury indictment.
"The alleged coup plot was never dangerous," the defendants' motion says. "It was, at most, a government-propelled fantasy, lacking any realistic planning, money or support."
The written plan for the attack was authored by defendant Dang Vang and "reads more like a B-grade movie script than a serious military plan - a fact which is hardly surprising, considering that it was written not by a military strategist, but by an out-of-work drafter of business proposals who was promised $5,000 for the job, money he needed to pay his mortgage," the motion says.
But the prosecutors rejoin that "the principal military advisor to the conspirators was defendant Harrison Jack, a West Point graduate; a veteran of one or more combat tours in Southeast Asia; a graduate of the Army's Infantry Officer School; a graduate of the Army's Ranger School, one of our military's most challenging training operations; a graduate of the Army's Airborne School, and a 20-year veteran of the United States Army who rose to the rank of lieutenant colonel."
Jack, a 60-year-old Woodland, Calif., resident, "is not some `out of work drafter of business plans,'" the prosecutors wrote. "What he is is a military strategist. He reviewed the operations plan and told the undercover agent that in his opinion it was fairly good."
The defendants allegedly negotiated with the undercover agent for 24 special operations troops at a rate of $500 a day each, to be paid in advance.
The defense motion says this is an illustration of the plan's incompetence because mercenaries demand much more for their services.
But the prosecutors say that $500 to $600 a day "is the current going rate for private special operations soldiers conducting operations in war zones under contract with the government."
They refer to the Web site of Blackwater USA, the North Carolina-based firm that is the principal contractor for mercenaries in Iraq.
As to the agent's role, the prosecutors insist, "No one went out and said, `Let's ensnare former Hmong freedom fighters in a sting.' Harrison Jack targeted himself by attempting to engage in an illegal arms deal with a defense contractor.
"The undercover agent dealt with Harrison Jack. It was Harrison Jack who brought the other defendants into the case, not the undercover agent. It was Vang Pao and Harrison Jack who wanted the undercover agent to demonstrate the types of weapons which he had available for sale, not the undercover agent."
The prosecutors note that the defense motion says Jack approached the defense contractor to acquire 500 AK-47 assault rifles "to defend against the Lao government's genocide of the Hmong people.
Assuming that is what the defendants did, that would be a confession to all of the charges in the indictment except the Stinger missile charges."
The Lao government has repeatedly denied persecution of Hmong. But Amnesty International has reported that several thousand Hmong - the remnants and descendants of a CIA-funded army led by Vang Pao that fought the communists from 1961 to 1975 - are hiding in the jungle from the Lao military.
"Vang Pao's danger arises from his position as leader of the Hmong nation in exile and his organizational and command skills," the prosecutors allege. "If Vang Pao orders `Jump,' the only question is how high."
Had Vang Pao ordered a halt to the coup plot, that would have been the end of it, according to the prosecutors.
"He didn't say `No.' He said `Yes.' That is why we are here now."