Lawyers for Newburgh Four claim entrapment in incident cited as case in point for nonprofit security grants.
When the trial of the so-called Newburgh Four, accused of a plotting to blow up two Riverdale synagogues, commences next month, it will be the first case of alleged anti-Jewish terrorism in a New York courtroom in more than 15 years.
But unlike other recent terror cases that were more or less a slam dunk for prosecutors, including the 1994 trail of Rashid Baz for shooting four chasidic students on the Brooklyn Bridge, the Newburgh case will likely raise complicated issues about how far authorities can go in counterterrorism probes in post-9/11 America, as well as where investigation ends and instigation begins.
Lawyers for the four Muslim men recruited by an FBI informant and arrested on May 20, 2009, in the process of allegedly planting what they believed were explosives outside two Bronx shuls have tried in vain to have the case dismissed on grounds of entrapment, a tricky tactic that rarely succeeds in terrorism trials.
Civil liberties watchdogs have not decried the Newburgh arrests, but seem to be watching the prosecution carefully as facts emerge about the case, which will hinge on the testimony of the informant, identified in press reports as Shahed Hussain, a 52-year-old Pakistani with his own prior legal problems.
Hussain appears to have visited the Masjid al-Ikhlas mosque in Newburgh specifically to recruit potential terrorists, and defense lawyers say he offered the four cash and a new car to carry out the plot, which also involved firing missiles at military aircrafts at the Stewart Air National Guard base near the upstate town, about an hour from New York City.
Law enforcement sources have told Jewish leaders that while the players may have been cultivated, the focus of their animus was not planted.
“From what I have learned, these defendants came up with the idea of attacking a synagogue by themselves,” said David Pollock, associate executive director of the Jewish Community Relations Council of New York and the agency’s point man on security matters.
The alleged bombing attempt has been used as a case in point for continued funding from the Department of Homeland Security to protect soft targets in New York, the majority of which has been spent on synagogues and other Jewish institutions. Last July, Sen. Kirsten Gillibrand said in a statement, “This plot is a stark reminder that religious institutions need sufficient resources to keep them safe from the threat of a terrorist attack.”
Funding for the Urban Areas Security Initiative Nonprofit Security Grant Program was reduced by the White House in recent years, but the amount spent in New York rose in 2009 to $4.6 million from $4.1 million the previous year. This year’s funding has not yet been allocated.
Kurt Bradley, a Florida-based consultant who helps organizations obtain homeland security grants, said that even if the Newburgh Four are acquitted, funding for protecting New York nonprofits, which include mosques as well as synagogues, isn’t likely to be affected.
“The grants are given out based on an assessment of potential risk,” said Bradley. “You have an extremely large Jewish community in New York and that means a tremendous amount of potential risk. The other side of the coin is that they are worried about people going against mosques because they are Muslim,” referring to bias attacks.
Prosecutors have described the ringleader of the group, James Cromitie, as a “hate-filled virulent anti-Semite” who wanted to kill Jews, according to The New York Times.
But at trial the four are likely to emerge as something other than the calculating terrorists authorities have depicted. All had lengthy criminal records, two have a history of drug abuse and one, Haitian immigrant Laguerre Payen, reportedly has a history of schizophrenia.
Each man’s background is inconsistent with the image of the well educated and idealistic men implicated in other recent terror attacks. Maj. Nidal Malik Hassan, the cleric charged with the November 2009, Fort Hood, Texas, massacre, has a degree in biotechnology from Virginia Tech and a medical degree from Uniformed Services University Health Service. Umar Farouk Abdulmutallab, the Nigerian accused of trying to blow up an airliner with a bomb concealed in his underwear last Christmas has a mechanical engineering degree from University College London. And Faizal Shazad, accused of the failed Times Square bombing in May, has a bachelor’s degree and MBA from the University of Bridgeport.
“It’s easy to laugh at this gang of goons — and we’ve done our share of that,” wrote Zachary Roth on Talking Points Memo’s Muckraker blog shortly after the arrest. “But, frankly, it’s also hard not to feel some compassion for what looks like a group of struggling, credulous, under-educated men, existing on the fringes of society, who lacked the intelligence or willpower to avoid getting taken in by a government informant anxious to mitigate his own situation, and by their own vague understanding of radical Islam and the hole it might fill in their lives.”
Three of the suspects, Cromitie, David Williams and Onta Williams have been held in federal custody without bail after pleading non-guilty. Payen is facing deportation proceedings as well as the criminal charges.
Judge Colleen McMahon of Federal District Court in Manhattan threw out the motion to dismiss the case based on entrapment but said she might re-examine the issue when the trail commenced. A month later she postponed the trial and, according to the New York Times, criticized the prosecution for delays in handing over a report to the defense that suggests the attack could not have happened without the informant’s participation — a key factor in the entrapment defense.
“Entrapment is very hard to establish in law,” said Marc Stern, the legal expert for the American Jewish Congress. “You have to show that this is a crime that wouldn’t have happened but for the government, that there was no predisposition to do it and the government created not just the occasion but the impetus for the crime. That is why most entrapment defenses fail.
“Having said that, the judge in this case obviously thinks this defense is not trivial and is treating this decision carefully.”
McMahon has set the trial date for Aug. 23 and said last week that the government’s case appears weaker than when the suspects were arrested, according to the Poughkeepsie Journal.
Stern said the case raises “hard questions” about the limits of informants’ participation in a plot and whether anti-terrorism investigations should allow some stretching of boundaries.
“In terrorism, the [potential] harm is so great that you certainly can’t fault the police or the FBI or government officials for trying to infiltrate areas where people might be thinking of committing these sorts of crimes,” said Stern. “The nature of terrorism is that it doesn’t publicly announce itself until it is much too late.”
A similar federal investigation in Los Angeles in 2001 led to the arrests of Irv Rubin and Earl Krugel, leaders of the West Coast’s Jewish Defense League. The two were accused of plotting to bomb a mosque and the offices of Arab-American Rep. Darrell Issa, based on information from an informant who pretended to participate. Rubin died in prison in 2002 before he could stand trial, in what authorities ruled a suicide, and Krugel was sentenced to 20 years on conspiracy charges, but was murdered in prison in 2005.
In May, 2002, the U.S. Attorney General’s office established guidelines for the FBI’s undercover operations, including the use of confidential informants, that was meant to augment the bureau’s ability to detect and thwart terrorist activity.
A September 2005, internal review of the bureau’s guidelines, issued by its inspector general, found that of 206 files examined there was an 87 percent incidence of noncompliance with those guidelines. Further, the report found that the bureau “did not plan for, or provide, adequate training of agents, supervisors, and confidential informant coordinators on informant policies and practices.”
Colleen Rowley, an FBI investigator for 24 years ending in 2004 who was involved in the compliance auditing, told The Jewish Week that terrorism investigations have replaced organized crime as “the flavor of the day,” attracting great interest from agents and supervisors and pressure to make arrests. She said part of the impetus for the reforms had to do with organized crime figures who were working as informants in murky circumstances.
“The same temptations exist,” said Rowley, who ran unsuccessfully for Congress in Minnesota in 2006. “An informant should be someone who is just keeping eyes and ears open, having access but not directing the plot. That’s what should be occurring.”
But Rowley said “abuses that used to exist in the organized crime have manifested themselves in the same way in terrorism cases. It perverts the real goal of law enforcement. If you can get people to create crimes, you’re part of the problem.”
But Pollock of the JCRC said Shahed, the informant in this case, was “very experienced and has already survived [challenges to] his testimony in a trial in Albany. So the federal authorities dealing with this are very confident the evidence is very good.”
He was referring to a 2002 incident when Shahed, as a Department of Motor Vehicles translator, according to press reports, was caught helping immigrants cheat on their driver’s license written exam and later helped the FBI nab two Muslim men on charges of laundering money to be used for arms purchases.
Pollock disputed the notion that the case involves questions of civil liberties. “One has the right not to be entrapped,” he said. “But the question here is a fact pattern. The jury is going to have to weigh these issues.”
Pollock said it would be “conjecture” to say whether the attacks on the Riverdale synagogues would have happened without Shahed’s participation.
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