By Jennifer Jenkins
Months into the planning process, Shahawar Matin Siraj decided that he should check with his mother before blowing up the 34th Street subway station in Manhattan’s Herald Square.
“I have to, you know, ask my mother’s permission,” the 22-year-old Pakistani immigrant said to his friends – James Elshafay and Osama Eldawoody – on Aug. 23, 2004, when they questioned his commitment to the group’s plot. As revealed in recordings of the conversations, the scheme was one that the trio had planned meticulously, even conducting a practice run in which they traveled to Midtown and separately entered the 34th Street station, scouting prospective locations to hide the bomb they intended to acquire.
“Every single thing matters,” added Siraj.
While the men had not yet set a firm date to implement their plan, the Republican National Convention was scheduled to start just three days later at nearby Madison Square Garden. But Siraj appeared to be growing apprehensive about his role in the plan that the group of friends had spent hours discussing.
“I don’t want to be the one who drops it and have people die,” said Siraj, a Queens resident who had illegally entered the country five years earlier after leaving his native city of Karachi.
While he had been close friends with Elshafay for a few years, Siraj had only known Eldawoody for a little more than a year, when the two met at the Islamic bookstore in the Bay Ridge section of Brooklyn, where Siraj worked.
“No killing,” Siraj added. “Only economy problems.”
Eldawoody wasted no time asking Siraj if he was still willing to “do jihad.”
Siraj, who had previously appeared enthusiastic about his role in conceiving and carrying out the attack, responded to his friend carefully: “I will work with those brothers as a planner or whatever. But dropping the bomb? I’m not sure. I have to think about it. Give me some time to feel comfortable with it.”
That conversation might have stayed among the group of friends — except that Eldawoody a 50-year-old Egyptian immigrant and naturalized U.S. citizen, was not Siraj’s friend but a paid police informant who was taping the group’s discussions. And though Siraj had asked his friends for additional time to consider the plan, four days after that conversation, he would find himself in handcuffs, sitting at a table across from two New York City police officers, a federal agent and two federal prosecutors, and facing accusations of conspiracy and plotting to plant explosives at a public transportation system.
As he sat in the FBI office, Siraj did not yet know that law enforcement had possession of dozens of recorded conversations between himself and the man he had believed to be his friend and confidant. When the case went to trial, Siraj’s lawyers mounted an entrapment defense, arguing that their client had been unduly manipulated and influenced. But nearly two years later, after a five-week trial and 10 hours of deliberation, 12 jurors would find him guilty of four counts of bomb conspiracy. In a statement released shortly after the verdict, Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, praised the “diligent” and “courageous” investigative work of the NYPD, FBI and government informants and agents.
The case was the first to test the expanded surveillance powers granted to the New York City Police Department in 2003, when a federal judge overturned a court order that had placed restrictions on spying on political organizations. For 18 years, the Handschu agreement had required that law-enforcement authorities have evidence of criminal activity before sending in individuals to perform surveillance. The case was also the first post-9/11 instance in which the NYPD’s Intelligence Division – which at that time had been recently overhauled – spearheaded a terror investigation that was to be tried in federal court.
In the wake of the Sept. 11, terrorist attacks, both local and federal law enforcement have frequently employed the use of informants and undercover officers in terror investigations. Since 2001, more than 30 terror cases have involved an informant or undercover government agent. While many suspects in those cases go on to take plea deals to avoid longer sentences, those who do go to court often decry law enforcement’s actions as blatant acts of entrapment, arguing that the informants push defendants toward actions they would not normally have planned or committed.
To mount a successful entrapment defense, a defendant must prove that he was induced to commit the illegal conduct by the government or a government agent. But often, the government’s response is to argue that the suspect was predisposed to commit the act.
“Most of these cases, the inducement part is pretty straightforward, there is inducement,” said Daniel C. Richman, a professor at Columbia Law School who specializes in criminal procedure and federal criminal law. “You have a group of people who would not have really engaged in the charged conduct except for the government provocation. The focus of the trial ends up being on their ideological leanings, their personal motivations and whether they are really the kind of people we should worry about.”
The loosening of surveillance rules following 9/11 seems to have increased the use of informants, particularly in Muslim communities. After the Sept. 11 attacks, Dennis Lormel, who worked for the FBI for 28 years, was chief of the bureau’s terrorist financing unit and spent many years supervising informants before retiring in 2003. Lormel said that law-enforcement officials have found informants particularly necessary for investigations of Middle Eastern and Islamic groups because of the difficulty in penetrating those communities.
“It is good police work to use an informant proactively like that to develop information,” said Lormel, “But you have to be careful that you’re not going on a fishing expedition.”
Police officers first became interested in Siraj in 2004, when a Bay Ridge resident called the NYPD’s terrorism hotline and reported him making anti-American rants. At the time, Siraj was working at Islamic Books and Tapes, a store located near 68th Street and 5th Avenue. Siraj’s place of employment was right next to the Islamic Society of Bay Ridge, which houses an active mosque and community center, and serves as the axis of the city’s largest Arab Muslim community.
After stints at several mosques in the city, Eldawoody was sent into the Bay Ridge neighborhood to gather intelligence. Eldawoody had signed up to be a confidential informant in 2003, not long after he himself was visited by FBI and police officials when someone called in about him. Months after infiltrating the neighborhood, he and Siraj met at the bookstore, and over the course of the next two and a half years, Eldawoody would receive roughly $100,000 in compensation and relocation assistance for his work on the investigation.
At trial, Siraj’s lawyers attempted to present him as a hapless and naïve young man who had been goaded into planning an attack by Eldawoody, arguing that the younger man saw the informant – who would often drive him home after a day’s work at the bookstore – as an older brother and mentor. Eldawoody had told the other two men that he was working for an organization called “The Brotherhood” that would supply the explosives. The defense conceded that Siraj had conceived the 34th Street plan, but Martin R. Stolar, one of Siraj’s lawyers, argued that without Eldawoody’s influence and willingness to provide the bombs, the plot never would have advanced past idle talk.
Siraj, who had been in trouble with the law at least twice before on assault charges, testified that he was confused at the time of his arrest and thought he was being detained in relation to a misdemeanor assault charge he was then facing. On the day of his arrest, police from Bay Ridge’s 68th Precinct telephoned him and asked him to come in to resolve the misdemeanor case but ended up arresting him shortly after they saw him leave his job, headed in the opposite direction of the police station. Though he signed a waiver acknowledging that he had been read his Miranda rights, Siraj and his defense team later unsuccessfully tried to suppress statements he made to the police that day that implicated him in the plot.
But once at trial, the prosecution produced a surprise witness, an undercover detective identified only by a pseudonym – Kamil Pasha – who had been working in deep cover in the Bay Ridge area for more than two years. Through visits to the bookstore, the detective testified, he’d had more than 70 encounters with Siraj and been privy to his anti-American statements and remarks defending Palestinian suicide bombers. During his testimony, Pasha, a Bangladesh native, shed light on the NYPD’s undercover investigation practices when he described the way the intelligence department had recruited him from the Police Academy when officials learned he could speak Arabic and deployed him to South Brooklyn.
“”I was told to act like a civilian – hang out in the neighborhood, gather information,” Pasha testified.
The detective’s statements lent credence to law enforcement’s claims that Siraj had long harbored terrorist ambitions. Indeed, officials said that before ever meeting Eldawoody Siraj and Elshafay had considered numerous other targets, including the Verrazano-Narrows Bridge, a Staten Island jail and two other subway stations in Manhattan.
Elshafay, a 19-year-old who lived in Staten Island, suffered schizophrenia and bouts of depression, and said that he had been a victim of sexual abuse in his childhood. Excerpts from hours of audio and video recordings revealed that he had volunteered to drop the bomb off in the subway station when Siraj began to balk at playing that role in the plot.
“I have an idea. If I go in to do it, I’ll dress like a Jew,” Elshafay said on Aug. 23, 2004. “Walk down there, inshallah, and everything will go the way Allah planned it.”
In October 2004, Elshafay pled guilty to conspiracy to damage or destroy a subway station by means of an explosive. He would go on to testify against Siraj, who was sentenced to 30 years in a federal prison in January 2007. Two months later, Elshafay would receive a five-year sentence.
The entrapment defense has been largely unsuccessful in terror investigations and trials, but it is not often put to the test because many defendants strike a plea deal with prosecutors, who get involved very early in the investigation process.
“Most federal prosecutions do not go to trial and entrapment defenses are ones that can only be articulated at trial,” said Richman of Columbia Law School, which leaves a small group of cases in which the entrapment argument is even raised.
Once an entrapment defense is broached, the door is opened to focus on the defendant’s motivations, anti-American animosity, troubling associations and other things that can often be kept out of the courtroom.
Richman said that because the government is relatively careful about whom it chooses to investigate, and because the jury is present with a fully-painted picture of someone’s possible motivations, most entrapment defenses fail.
The key to using covert surveillance in terror cases, Lormel said, is to try to develop independent corroboration before sending in a wired informant and to ensure that the supervising officer is maintaining close contact with and control of the informant.
“When you have the informant wearing the tape, you need to be clear that the bad guy is fully involved and engaged in this idea,” said Lormel. “Because the defense is going to say: ‘My guy wouldn’t have thought of this on his own.’”
That sentiment is the defense claimed by lawyers and supporters of four men arrested in Newburgh, N.Y., last year and charged with a plot to bomb Bronx synagogues and attack military planes at Stewart International Airport. In June, a federal judge postponed the trial indefinitely after the defense found a memo that proved the prosecution had doubts that the four suspects could – or would – carry out the attack without the informer being present. The judge eventually ruled that the prosecution’s wiretaps were permissible and the trial – which some terrorism experts think could set a precedent for entrapment – began jury selection on Aug. 23.
Shamshad Ahmad, a physics professor at the State University of New York at Albany and president of the local mosque that the Newburgh suspects attended, said he thinks the investigation is a clear case of entrapment.
“They don’t have weapons, they don’t know how to get weapons, they don’t have money,” said Ahmad, who knows the suspects personally, and describes them as spiritual and family-oriented. “So the FBI cooks a plan and then trains and coaches an informant and sends him in, and after a year or so they might be able to put together a case.”
Linda Sarsour, 30, the director of Bay Ridge’s Arab American Association, said she has seen growing resentment in her neighborhood regarding the police’s infiltration tactics. While the Muslim community has an excellent relationship with the local 68th Precinct, said Sarsour, there is tension between neighborhood leaders and residents and the NYPD’s intelligence department.
“They are afraid. Our community feels targeted,” said Sarsour, who added that Eldawoody had attempted to speak to many other Arabs in the neighborhood, including the imam at the local mosque, before linking up with Siraj and Elshafay. What can appear to be indiscriminate targeting or fishing expeditions by police, leaders like Ahmad and Sarsour said, only heightens fear in their communities, leaving people afraid that they too could find themselves at the center of a terror investigation.
“The FBI sends an instigator that incites people to make statements or loose talk which they might then cherry pick,” said Ahmad. “And after hundreds of minutes of talk, you will find someone that says something, but all hypothetical.”
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