Newburgh Terrorism Case May Establish a Line for Entrapment

Nathaniel Brooks for The New York Times

Shamshad Ahmad, a physics lecturer and mosque leader in Albany , said government infiltration and deception carried a cost.

Published: June 15, 2010

· WHITE PLAINS — When four Muslim converts from Newburgh , N.Y. , were charged last year with planning to bomb Bronx synagogues and shoot down military planes at Stewart International Airport , officials described the plan as a chilling effort to commit local terrorism.

On Monday, the trial of the men was indefinitely postponed by a federal judge. But while this highly unusual turn of events threw much of the case into chaos, it helped clarify a central question: Did a shadowy informant encourage the men to plot mass murder, or did he go too far and manufacture a plan for mayhem?

The judge, Colleen McMahon, excused potential jurors on Monday and criticized the prosecutors for being late in giving the defense an investigator’s report suggesting that the men — a group of ex-convicts and drug offenders — were incapable of carrying out a complex attack without the informer, a fast-talker who was on the government payroll.

The dispute, as well as previous comments from Judge McMahon, suggests that the case will focus on the defense claim that the four were entrapped with promises of a $250,000 payment and a BMW, and that the men were so ill-equipped to plan an attack that none had a driver’s license or a car.

Infiltrators — civilian informers and government agents — have played a part in more than 30 terrorism investigations since the Sept. 11, 2001, attacks, including the plan to bomb the Herald Square subway station, the plot to blow up the Sears Tower in Chicago and the arrests last week of two New Jersey men on charges of seeking to join a militant group in Somalia.

But some terrorism experts say that the informant’s role in the Newburgh plot was more active than most, and that the case could define when a permissible sting operation becomes illegal entrapment.

“The degree to which the government seems to have led on the defendants is much more aggressive than we have seen in other cases,” said Karen J. Greenberg, executive director of the Center on Law and Security at the New York University School of Law, which tracks terrorism prosecutions.

Defense lawyers in the Newburgh case refer to the informant — Shaheed Hussain, a Pakistani who was an informant in an earlier terrorism sting in Albany that was controversial — as an agent provocateur who earned his keep by scouring mosques for easy targets. Mr. Hussain “proposed, directed, supplied, funded and facilitated every aspect of the ‘terrorist’ plot,” defense lawyers said in a court filing. He attended to every detail, they said, including assembling weapons when the defendants could not follow his instructions.

The prosecutors declined to comment. But in legal filings they have said the investigation was “exemplary law enforcement work” and argued that secret recordings would show that the leader of the group, James Cromitie, was a “hate-filled, virulent anti-Semite who wanted to commit terrorist acts against Jews and the United States .”

They say Mr. Cromitie, a career criminal, was the real instigator of the plan. Mr. Cromitie, 43 at the time, referred to Osama bin Laden as “my brother,” according to prosecutors.

In the elaborate sting, Mr. Hussain arranged for the plotters to pick up fake bombs. The prosecutors noted that Mr. Cromitie and his three co-defendants “actually showed up and placed what they believed to be improvised explosive devices” in front of two synagogues, the Riverdale Temple and the Riverdale Jewish Center. They were arrested at the scene.

In May, Judge McMahon declined a defense request to dismiss the charges because of Mr. Hussain’s role in the plot.

But she noted that the case was centering on the sting. “Did the government become aware of potential criminal activity and take action to neutralize a real terrorist threat,” she wrote, “or did it locate some disaffected individuals, manufacture a phony terrorist plot that the individuals would (and could) never have dreamed up or carried out on their own, and then wrongfully induce them to participate in it?”

The men — Mr. Cromitie, David Williams IV, Onta Williams and Laguerre Payen — could face life in prison if convicted of charges that include conspiracy and attempting to use weapons of mass destruction and antiaircraft missiles.

The entrapment defense seeks acquittal with the claim that a government agent fostered a crime that a defendant was not predisposed to commit. It has been notably unsuccessful in terrorism cases.

Ms. Greenberg of the Center on Law and Security said that of the more than 30 terrorism prosecutions involving informers since 2001, the center knew of no case in which the entrapment defense had been successful.

Still, civil liberties lawyers say they have been troubled as information has emerged in court cases about informants who have flattered and deceived Muslim men in one community after another. Christopher Dunn, the associate legal director of the New York Civil Liberties Union, said the case before Judge McMahon could define the limits of the terrorism sting.

“The Newburgh case,” Mr. Dunn said, “may be a pivotal test of just how far the government can go.”

Some lawyers argue that even an over-the-top performance by an informant who flashes money and pushes audacious terrorism schemes may serve the government well. Dru Stevenson, a professor at the South Texas College of Law who has written about entrapment in terrorism cases, said the government might want to foster the suspicion that comes from a clumsy infiltrator.

“If you have a person who is capable of committing terrorism,” Mr. Stevenson said, “you want them to worry that the person recruiting them at the mosque is an F.B.I. informer.”

But infiltration and lies have a cost, said Shamshad Ahmad, a physics lecturer at the State University of New York at Albany who is president of the local mosque. He knew the two Muslim men in the Albany plot, the mosque’s imam and a pizzeria owner, who were convicted after an intricate sting.

In Albany , Mr. Hussain, the same informant who later worked in Newburgh , spun out a fake money laundering plan that included a demonstration of a shoulder-fired missile, along with gifts and false friendship.

“I never imagined the United States would do this,” said Dr. Ahmad, who came to this country from India more than 30 years ago. “ Soviet Union I could have expected it. Third world country, yes. Mafia, yes. But not the Justice Department.”