The Problem of the New York Police

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.

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 the NYPD 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.

It is notable that the recordings begin only after Siraj came up with his plot. Without earlier recordings the question of inducement becomes a matter of whom one chooses to believe. Elshafay testified that Eldawoody led him to believe that “blowing up bridges was Islamically obligatory.” And Eldawoody apparently laid out to Siraj a theological rationale for violent jihad, telling him that it was a fatwa, that his iman had given him the orders, and arguing that to damage the US at home would force the army to abandon its wars in Afghanistan and Iraq and concentrate on keeping order at home, thus saving innocent Muslim lives. Siraj testified that before he came up with the plot, Eldawoody supplied him with gruesomely graphic pictures and texts from Arab-language magazines of American soldiers mistreating Muslims, including scenes from Abu Ghraib. Eldawoody denies this.

At a critical point Siraj was recorded telling Eldawoody that he wanted to check with his mother before he did anything further, that he really didn’t want to blow up the subway or cause anyone to be killed.¹³ A few days later he was arrested. Siraj never sought or obtained explosives; Eldawoody was to supply the bomb through a fictitious international jihadist group called “The Brotherhood.” No date was ever set for receiving or planting the nonexistent bomb.

Commissioner Kelly has frequently referred to the case as an example of Intel’s ability “to halt” lone-wolf terrorists, adding, after the verdict, that it “validates so much of what we’ve done to protect the city.”¹⁴ Thus far, according to the NYPD, Siraj’s has been the only conviction of a terrorist initiated and solely pursued by Intel. Handing down a sentence of thirty years mandated by the law, Judge Gershon noted the “extremely serious” nature of the crimes.¹⁵ Yet even in light of the verdict, and the fact that we will never know whether under different, hypothetical circumstances Siraj could have been recruited to jihad by a real terrorist and not a police informer, one may reasonably ask how this case became the major focus of New York’s antiterrorist campaign.

The culture of surveillance that has arisen at New York’s police department during the past decade has likely been enhanced by the unspoken rule of self-perpetuation that seems to govern most entrenched bureaucracies. Once you have a working unit of two thousand trained employees, with a budget in the hundreds of millions, broad public support, and no political checks or oversight, the temptation to extend your reach, to keep the machine in motion and identify more targets for investigation and create more and more files, is enormous.

Occupy Wall Street protesters have been especially vulnerable targets. Gideon Oliver, president of the New York chapter of the National Lawyers Guild, which, in partnership with the Legal Aid Society, has been providing free counsel to OWS arrestees, told me that in criminal court he and others have increasingly seen signs that peaceful political activists are landing on terrorist watch lists. Martin Stolar recently was defending an Occupy client in court for trespassing. In pre-trial proceedings evidence came from an Intel detective, implying, Stolar told me, that his client, a well-known activist within the Occupy movement, had been under surveillance and singled out for arrest. “At trial,” Stolar said, “they put a lowly uniform cop on the stand, to shield Intel.”

Katie Davison, a filmmaker and outspokenly nonviolent activist with Occupy, had police staked out in front of her East Village apartment building for weeks, photographing visitors as they came and went. On November 16 I saw Amin Hussein, a former corporate lawyer and frequent visitor to Davison’s apartment, attacked by at least five police officers while standing idly during a protest in Duarte Square, a small public park at Canal Street and Sixth Avenue. Clearly recognizing and targeting Hussein, who had never been arrested previously, officers surrounded him, beat him, and detained him without provocation or cause. He was charged with disorderly conduct.

November 17, the day of a major Occupy demonstration, was all the more dramatic—and potentially explosive—in light of the violent eviction from Zuccotti Park that had taken place two days before. On that day, a young woman and OWS organizer, Kira Moyer-Sims, and three of her friends were surrounded by thirty police officers near the Manhattan Bridge. Moyer-Sims was buying coffee at a bodega and her friends were waiting for her in a car. Although they were more than half a mile from the demonstration, the four were arrested, brought to a police station in the East Village, and strip-searched while their request for lawyers was ignored. They were eventually charged with obstructing governmental administration, a wide-ranging, highly general misdemeanor that criminalizes any act that “prevents a civil servant from performing an official function.”

But the substance of the charges was beside the point. The Manhattan district attorney eventually dropped them. They were evidently a pretext to keep the four organizers from attending the protest. Moyer-Sims told The New York Times that while she was detained, members of the Police Department’s Intelligence Division asked about her personal history, her relationship with other protesters, the nature of Occupy Wall Street, and plans for upcoming protests. “I felt like I had been arrested for a thought crime,” she said.¹⁶

By this time it had become common for activists to be arrested the instant they arrived at a protest. “They know where we hang out,” an organizer anxiously put it to me, “the private places where we now have to meet, our travel history. It feels like they know everything about us.”

On December 16, the day before another Occupy demonstration, officers approached the well-known organizer Sandy Nurse outside her apartment building in Bushwick, Brooklyn. The officers said they had come to do a “security check,” though they wouldn’t say of what or why. After Nurse told them they couldn’t come in, a policeman stuck his foot in the door to keep it from closing behind her. He pursued her into the vestibule of the building, threatening arrest for “obstruction of government administration” before departing.¹⁷

Instances of these surprise police visits to activists’ homes have become almost a matter of course. The day before Occupy’s 2012 May Day Demonstration, a new, more foolproof pretext for entering private homes was employed: “warrant squads”¹⁸ would arrive for unanswered summonses involving the most minor violations—summonses roughly equivalent in severity to traffic infringements, such as, in one case, an open-container violation—having an open can of beer or spirits on the street—that was five years old.

The website Gawker reported five such warrant squad visits to protesters’ apartments on April 30. Police would show up early in the morning, at dawn in one instance, when they would be most likely to catch protesters while they were still sleeping. “I woke up in bed to a rather large detective standing over me with a flashlight,” Sean Broesler told The New York Times, describing an intrusion at his apartment in Bedford-Stuyvesant on April 30. He and his roommates were ordered into the living room for questioning.¹⁹

On the same morning, police broke down the door of Zachary Dempster’s apartment in Bushwick with a warrant for his roommate, and then questioned Dempster in his bedroom.²⁰ And Leonard Levitt, a former reporter for Newsday who writes informatively of police matters on his blog NYPD Confidential, reported that Shawn Carrie, coordinator of internal communications for the May Day demonstration, was arrested for a years-old summons for public urination and then held in a jail cell for thirteen hours.²¹ Martin Stolar has an Occupy client who was arrested on a warrant that turned out not to exist at all.

Gideon Oliver spoke to me of the devastating effect this kind of surveillance has had on activists. “People fear that detectives are following them around. They panic. It’s a movement-dismantling tactic.” Most Occupy pro- testers are new to activism and are emotionally unprepared to deal with this kind of intimidation. Nor, so far as I have seen, are they inclined to seek the advice of older activists who were under surveillance in the 1960s and 1970s, before the protections of the original Handschu Decree, which prohibited political spying, were put in place. Those activists nevertheless found ways to continue their political work.

“A lot of us feel grief for what we built and lost,” Katie Davison told me. “Every step we take back into our old lives is an abandonment of something better.” She said that there is “a sense of desperation” among activists in New York. “Everyone is broke, and then there are the legal aftereffects of our arrests. A lot of us left the city or had to take crappy jobs.”

Davison was arrested in Zuccotti Park with dozens of other OWS demonstrators on March 17, at a peaceful protest marking the six-month anniversary of OWS. Davison told me:

Riot police ran at me and used the strap of my camera to choke me. They were smashing kids’ heads into the bars as they piled us onto a corrections department bus. They held us at general booking. They released the others after a couple of hours, but they kept me in jail. The corrections officers kick you awake every hour. It drives you crazy. You ask yourself, are you really being singled out? Are you really being watched?

She was held for fifty hours before being formally charged for resisting arrest, disorderly conduct, criminal trespass, and obstruction of government administration—what both activists and police call “The Occupy Package.” Davison pleaded guilty to disorderly conduct—the other charges were dropped—and paid the typical court fine of $120.

New Yorkers would do well to ask: At what point does justification of the “we are doing what we must to protect you” line lose its plausibility and become a rote explanation for rampant civil rights violations with virtually no compensating public benefits that have been adequately explained to the public?

In any event, should professional spies working for a clandestine agency have the sole power to decide who should be investigated as a potential terrorist? To open an investigation, no one outside Intel or the NYPD need agree, approve, or know the investigation is in progress.

Overwhelming public support, more than anything else, has enabled the spying program to continue, and to grow. But to what extent is it compromising the civil rights of the very people who support it?

David Cohen, the head of the Intelligence Division, appears to have assembled a kind of municipal CIA—an NYCIA, if you will. The full extent of its activities, and the cost to civil liberties, will probably not be revealed for many years, if they are ever fully known at all. By then, the damage may be irreversible. And yet it is far from clear whether any innocent lives will have been saved. I was not able to speak to anyone at the police department about the spying program and the Intelligence Division’s activities, but have relied on their public statements and court records about the substance of the cases I have described. There may be a defense of Intel’s activities, but it has not been made.

—This is the second of two articles.