The Problem of the New York Police
Michael Greenberg OCTOBER 25, 2012
New York Review of Books
New York City Mayor Michael Bloomberg, District Attorney Cyrus Vance, and Police Commissioner Raymond Kelly at a press conference announcing the arrest of Ahmed Ferhani and Mohamed Mamdouh on terrorism charges, May 12, 2011. (Mary Altaffer/AP Images)
Over the past decade the New York City Police Department’s Intelligence Division (Intel) has built an active, fully staffed spying unit devoted to “mapping” the city’s large Muslim community in search of “home-grown” terrorists with no known ties to international jihadist groups. Their sense of alienation and resentment about the mistreatment of Muslims, it is feared, might lead them to commit “lone-wolf” attacks. Intel employs undercover informants, analysts, and spies, as well as “rakers” and “mosque crawlers,” in police parlance, who act as “human cameras,” and it opens investigations and files, without evidence of criminal activity, on unknown numbers of New Yorkers.1
Federal and local law enforcement agencies have revealed fourteen plots that have either failed or been foiled since September 11, 2001. It would be impossible to quantify the role the NYPD has played in this record. For example, the would-be Times Square bomber of May 2010, who reportedly had ties with the Taliban, was thwarted by a hot dog vendor who spotted smoke from a lit fuse in the parked SUV that held the terrorist’s bomb, and immediately reported it to nearby police.
The FBI has been responsible for aborting many of the plots, including a serious 2006 plan with international terrorist support, involving “martyrdom and explosives,” to destroy PATH train tunnels in order to flood the Financial District. And in 2006, a plot involving twenty-four suspects to use liquid explosives on commercial airliners bound for the US and Canada was thwarted by British law enforcement.
Certainly, the city’s regular police force of 36,000 officers, thousands of whom patrol the streets at any given hour, has been effective in protecting the public.2 But how much protection have the activities of the NYPD’s Intelligence Division itself provided? We do not know the intricacies of the relations between Intel and the rest of the NYPD; but Intel has initiated investigations and taken sole credit for arrests involving three separate potential attacks.
A common thread in all three cases has been the mental instability and subnormal intellectual capacities of the alleged terrorists. Each involved a sting operation and relied almost entirely on the testimony of a paid undercover informant. Mentally unstable people may be capable of great harm and paid informants may help detect serious crimes. But the facts in these cases warrant critical attention.
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Jose Pimentel, a Dominican-American who converted to Islam, was arrested in November 2010 and charged with planning to use homemade bombs to attack US soldiers returning from Afghanistan and Iraq. Intel twice approached the FBI to become involved in the case—partnership with the FBI and, by extension, the US Attorney’s office helps ensure that a case will go to federal court, a crucial measure of its importance. Both times the FBI refused, concluding that Pimental was “not a serious terror threat” and that, according to an FBI official who works with the NYPD and asked to remain unnamed, he lacked “the predisposition or the ability to do anything on his own.”3
The New York Times reported that federal investigators “were concerned that the case raised some entrapment questions.” Some agents “wondered whether Mr. Pimentel had even the small amount of money or technical know-how necessary to produce a pipe bomb on his own, had he not received help from the informer.”4 The case is currently in Manhattan Criminal Court—a highly unusual place for a terrorist case to end up. Alleged crimes involving attacks meant to harm the US economy or military are almost always handled in federal, not local, courts.
Ahmed Ferhani and Mohamed Mamdouh were arrested on May 11, 2011, for allegedly conspiring to “take out,” as Police Commissioner Ray Kelly put it, a Manhattan synagogue.5 The arrests were announced in spectacular fashion, with live-action photographs of Ferhani apparently about to buy weapons from a police informant during evening rush hour on West 58th Street in Manhattan. At the news conference Mayor Michael Bloomberg voiced his emphatic support for Intel’s counterterrorism budget, even if “we [have to] figure out how to pay for it later.”6 Kelly asserted that on surveillance recordings Ferhani expressed his desire to kill Jews and that he was fed up that Muslims around the world were being treated “like dogs.” And Manhattan District Attorney Cyrus Vance has noted the defendants’ “desire to commit violent Jihad against Jewish Americans.”7
Yet questions about the case were raised when, as with that of Jose Pimentel, the FBI declined to become involved. Agents reportedly distrusted Intel’s undercover informant, and their suspicions were not dispelled when theNYPD refused to allow them to interview the informant, known in court records only as UC 242. During a pretrial hearing on September 18, it emerged that the FBI had been “critical” of UC 242’s conduct during a separate investigation in 2009.8
Ferhani is twenty-seven, Algerian-born, and has been living in the United States since the age of five. He has been committed to psychiatric wards thirty times, the first time at the age of seventeen, though his parents say he has not been given a definitive psychiatric diagnosis. (Mamdouh, his alleged co-conspirator, a twenty-year-old naturalized US citizen from Morocco, was also indicted but seems to be regarded by prosecutors as a lesser figure in the plot.)
Like Pimentel’s, the case is being prosecuted in Manhattan Criminal Court. But in this instance, the district attorney sought to charge the defendants with second-degree conspiracy to commit an act of terrorism or a hate crime, under a New York state law passed after September 11, 2001. Conviction on the second-degree conspiracy charge carries a mandatory life sentence. This will be the first time the law has been used.
In June 2011, after hearing evidence, the state grand jury did not vote to indict the two on the most serious charges, rejecting, according to The New York Times,
the prosecution’s assertion that they had plotted to blow up a synagogue while there were worshippers inside. Instead, the panel favored lesser charges that suggested that the defendants, at best, had wanted to destroy a synagogue when it was empty.9
The lesser charges, under the state’s terrorism laws, are still serious, carrying a maximum sentence of twenty-five years. And an “empty” synagogue may have people inside, such as religious caretakers, janitors, and guards. But the grand jury’s decision probably reflects its skepticism about the prosecution’s presentation of Ferhani’s intentions. The case is awaiting trial.
Intel’s single conviction thus far—in a case that did make it to federal court—was that of Shahawar Matin Siraj, a twenty-two-year-old Pakistani immigrant who was arrested in August 2004 for conspiring to bomb the Herald Square subway station. At trial Siraj mounted a defense of entrapment, claiming that he was under the influence of an Intel agent, Osama Eldawoody, who fostered a relationship with Siraj over a period of eleven months, during which he induced him to hatch a plot that, without Eldawoody’s encouragement, would never have come into being.
There is no doubt that Siraj, and his associate James Elshafay, entered into a conspiracy with Eldawoody—that is, a verbal agreement to violate the law. Siraj admitted coming up with the idea of placing a bomb in the 34th Street subway station. But transcripts of the trial reveal a murky, and highly vague, narrative of events and intentions.
Entrapment is difficult to prove because the defendant’s predisposition to act is the determining factor; the prosecution need only put forth its version of the accused’s state of mind. Predisposition is the legal term for “ready and willing” and it is in many ways a metaphysical question, concerned with the evolution of the defendant’s thought process, something for which objective evidence can be hard to come by. Judge Nina Gershon, who presided over the trial, acknowledged this when she told members of the jury, before they began deliberations, that predisposition “can rarely be proved directly.” Ultimately the decisive factor is how the jurors “size…up,” in Judge Gershon’s words, the government agent and the accused. Siraj has an IQ of 78, just above the threshold of mental retardation, and the impression I got from reading transcripts of the trial was that of an inarticulate young man, shifting and transparent in his attempts to protect himself and easily led around during cross-examination.
In a conspiracy charge the agreement to commit a crime is the crime. But under federal law an agreement made solely between a government agent and a suspect is not a crime—there must be at least one other non–law enforcement person involved.10 James Elshafay was that person, nineteen at the time of the conspiracy, and, by his own description, a schizophrenic who had been a patient on a psychiatric ward. The US attorney, Marshall Miller, one of the prosecutors in the case, referred to him as an “unbalanced young man.” And Martin Stolar, Siraj’s defense attorney, characterized Elshafay, without objection, as “a rather sad case, coming from a broken home, drug and alcohol abuse, and [with] some serious mental problems.”
Elshafay cooperated with the government in return for a lenient sentence (he got five years) and his testimony against Siraj was critical to the government’s case. It was Elshafay who first introduced to Siraj the idea of committing a violent attack—the blowing up of the Verrazano Bridge—and Siraj’s initial response to the idea was important in determining whether he had been predisposed to engage in terrorist crimes. The defense maintained that Siraj rejected the plan as “crazy.” Elshafay, whose deal with the district attorney included a government promise “to bring any substantial assistance provided by the witness to the attention of the court for consideration at sentencing,” claimed that Siraj “liked the idea of bombing bridges.”
The prosecution’s main challenge was to convince the jury that prior to meeting Eldawoody, in September 2003, Siraj had been ready and willing to become a terrorist. In fact, for almost two years before meeting Eldawoody, Siraj had been under the surveillance of an undercover officer—a Bangladeshi-American who had been recruited from the Police Academy when he was twenty-three and who testified under the pseudonym “Kamil Pasha.”11 Never during those two years, according to the reports Kamil filed, did Siraj express any interest in becoming a terrorist. To establish Siraj’s predisposition, prosecutors leaned heavily on a statement he made to Kamil that he could sympathize with the impulse driving Palestinian suicide bombers whose family members had been killed. This, argued the government, showed incontrovertibly that Siraj “approves of violent jihad,” asserting that “this statement all by itself demonstrates predisposition.”
Kamil also reported hearing Siraj bluster about personal fights he had been in, grossly exaggerating his tough-guy exploits, complaining of his treatment by US immigration services, and expressing his belief that the next terrorist target would be Wall Street.
In September 2003, Siraj met Eldawoody, an unemployed engineer who worked for Intel on a kind of freelance basis as an informant. According to his confidential informant registration form, the reason for Eldawoody’s cooperation with Intel was “monetary,” and his pay appears to have been based on the perceived value of the information he supplied to his Intel handler. In all, he received about $100,000 for the investigation. This doesn’t disqualify his testimony, but it did provide him with an incentive to nurse the relationship with Siraj over time and to raise the stakes as high as possible.
On May 17, Siraj came up with the idea of placing a bomb in the subway. What took place between the two men during the eight months, and thirty-five to forty meetings, leading up to this plot remains largely unknown, even after the trial. Eldawoody is twenty years older than Siraj and presented himself to him as an Islamic scholar with family ties to learned clerics. On audio recordings that Eldawoody made, Siraj calls him “big brother,” worries about his health, and tells him only death “can make us separate.” Eldawoody, for his part, calls Siraj his “son.”12 On the recordings Siraj expresses, in grandiose terms, his desire to avenge America’s mistreatment of Muslims. He also made a scouting trip to the subway station with Eldawoody and Elshafay and created a crude drawing of the target.
- 1See my previous article, “ New York: The Police and the Protesters,” The New York Review, October 11, 2012. ↩
- 2See the article by David Cole, “ Our Romance With Guns,” criticizing “stop-and-frisk” and other tactics used by the NYPD,The New York Review, September 27, 2012. ↩
- 3Karen McVeigh, “ New York Bomb Suspect Jose Pimentel Not a Serious Terror Threat: FBI sources,” The Guardian, November 21, 2011. ↩
- 4William K. Rashbaum and Joseph Goldstein, “ Informer’s Role in Terror Case Is Said to Have Deterred FBI,” The New York Times, November 21, 2011. ↩
- 5William K. Rashbaum and Al Baker, “ Suspects in Terror Case Wanted to Kill Jews, Officials Say,” The New York Times, May 12, 2011. ↩
- 6“ Mayor Bloomberg Updates New Yorkers on the Arrest of Two Suspects in Synagogue Terror Case With Police Commissioner Kelly and Manhattan District Attorney Vance,” New York City Press Release 152-11, May 12, 2011. ↩
- 7William K. Rashbaum and Colin Moynihan, “ Most Serious Charges Are Rejected in Terror Case,” The New York Times, June 15, 2011. ↩
- 8According to The New York Times, a court document submitted at the hearing revealed that the investigation, involving a group of Turkish men who discussed sending money to Gaza to buy guns for Palestinians, fizzled after one of the men absconded with the money and used it for “personal expenditures.” See Joseph Goldstein and C.J. Hughes, “ FBI Criticizes Officer’s Role in a Terror Case,” The New York Times, September 18, 2012. ↩
- 9Rashbaum and Moynihan, “ Most Serious Charges Are Rejected in Terror Case.” ↩
- 10In New York state courts a suspect can be charged with conspiracy, even if the agreement is made just with an informant. ↩
- 11William K. Rashbaum, “ Trial Opens Window on Shadowing of Muslims,” The New York Times, May 28, 2006. ↩
- 12William K. Rashbaum, “ Lawyer Confronts Informer in Subway-Bomb Plot Case,” The New York Times, May 5, 2006. ↩
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