A large percentage of preemptive prosecution cases  involve wannabees – generally, disaffected young men who believe themselves to be Muslim, and wish to attack Americans, or at least say they do. Many of them are mentally ill; some are petty criminals; and none of them has the wherewithal to carry out anything more complicated than a trip to Walmart. One of the first wannabee cases was that of the Liberty Six, where a group of young men in Miami decided, after being infiltrated by an agent provocateur, that it would be a good idea to attack the Sears Tower. They probably couldn’t have found it on a map, and didn’t even have bus fare to Chicago. But with the help of the provocateur, the FBI built its case and, after two mistrials, most of them were convicted and sentenced to between six and thirteen years in prison.

A very recent example is the case of Mohamed Alessa and Carlos Almonte, two young men from New Jersey who, after being infiltrated by an undercover NYPD officer, decided they would try to go to Somalia and somehow join a terrorist group there. They had no contact with anyone there or, really, anywhere. If they had made it there, the most likely scenario is that they would have been killed, probably before joining any group. Alessa was clearly mentally ill. Here is an excerpt from an article in which his mother was interviewed:

From another article about the case:

                “In November 2009, Alessa was heard talking to Almonte and the undercover officer.

So the FBI – actually the Joint Terrorism Task Force (composed of the feds and state and local police) which is building an empire for itself with cases like this – had them under surveillance, including FISA warrants and eventually the undercover operative, for four years, culminating in the big “take down” at JFK. The men were already unable to get passports and on the no fly list – but these restrictions were suspended so the “case” could proceed. On the appointed date, agents swarmed JFK, keeping the targets surrounded at all times. Finally, they moved in and grabbed them. Meanwhile, another team of dozens of agents waited for the signal to speed to the men’s houses and seize all their…. um, videos and e-mails. (Which they already had – remember, FISA warrant?)

Really? Sounds like the definition of overkill. The JTTF operation sort of reminds me of one political graffiti artist back in the ‘80’s who, wanting to tag a particular statue, created a map with two separate escape routes, enlisted four lookouts, and improvised code words which differed depending on which way the police came.  (The police never came and she celebrated in a bar with the lookouts.)

Another case, and one which I know more about, because it involved the same agent provocateur who was used in the Albany, NY case of my client Yassin Aref and his co-defendant Mohammed Hossain* is that of four young men from Newburgh, New York, who were targeted by the FBI even though the FBI knew that they had no ability to do anything, and that all but one of them didn’t even want to.

It seems that toward the end of the Bush Administration, the FBI decided to send this provocateur (a particularly slimy man named Shahed Hussain) into a mosque in Newburgh.  But no one who actually attended the mosque wanted to talk to him, so he hung around outside, and eventually befriended James Cromitie, who was described by his lawyer (and the judge) as a loud mouth – a quintessential wannabee.  Hussain promised Cromitie riches such as $250,000 and a BMW, if he could help carry out an operation in support of Jaish-e-Mohamed (JEM – the same group Hussain claimed to be affiliated with in the Albany case.) Hussain even produced a disabled stinger missile (probably the same one shown to Hossain in the Albany case – how many times is that thing going to be trotted out to snare unsuspecting targets  – it’s like Hussain’s pet.) Cromitie, after refusing to speak to Hussain for several weeks, eventually recruited three other people, none of whom had ever shown the slightest proclivity to support terrorism. But they were petty criminals who had supposedly converted to Islam in prison (which didn’t keep them from doing and selling drugs.) At least one was addicted to drugs and one was schizophrenic . They were also promised riches, including money for cancer treatments for one of their brothers. Under these circumstances, these guys could have been recruited to do absolutely anything. 

The lead FBI agent in the Newburgh case, SA Robert Fuller, has a checkered past – it was he who had completely innocent Canadian citizen Maher Arar snatched off a plane at JFK and rendered to Syria to be tortured. (Canada has apologized and paid Arar a settlement for its small role in the case, but the US has refused to apologize and a lawsuit has been dismissed, though a cert petition is pending at the Supreme Court.) For what it’s worth, Fuller also had one of his informants set himself on fire on the White House lawn.  After these things happened, Fuller was promoted and moved on to his latest coup – the Newburgh case.

Jury selection in the Newburgh case starts June 14. The judge, experienced southern district Judge Colleen McMahon, has made her outlook on the case known, dubbing it the “unterrorism case” at a recent pretrial hearing I attended. At that same hearing, she warned the prosecution that they failed to disclose Brady material (material favorable to the defense) at their peril, risking a dismissal for “outrageous governmental misconduct” (which may happen anyway).  A few days ago a “new” piece of Brady material was disclosed – a memo showing that the FBI had told security at Stewart Air National Guard Base not to worry if they saw Cromitie casing the place because he wouldn’t try anything without the provocateur with him. When lead prosecutor  David Raskin questioned whether this was Brady, Judge McMahon said, “Mr. Raskin, only a moron would think this is not Brady material.”

Isn’t there a better way to deal with idiots like those in the NJ and Newburgh cases ? I concede that even people as clueless as they might be able to carry out something like a suicide bombing, assuming they could somehow get hold of explosives. So what to do? Kendra’s law comes to mind, at least in the case of Alessa  and others who are known to be have a diagnosed mental illness – this is a NY statute allowing for an order directing that someone take their medication, if two psychiatrists agree. Worth a try anyway, for states that have like that. But even when something like that can’t be done, it seems like overkill to treat such people as a major national security threat.

Mark Bennett, Texas criminal defense attorney extraordinaire, who has a great blog called Defending People, recently did a post about wannabees like this, here. He pointed out, correctly, that if the FBI used this same strategy (infiltration with agents provocateur) against right wing groups, they would have thousands of cases in short order. But he also said, “I don’t have any objection to the FBI running agents provocateurs against people who express an apparently sincere interest in breaking the law, as long as they don’t go around entrapping people.”

To me, if it takes a provocateur, rather than just a straight undercover agent or informant, it is entrapment. A provocateur provokes, and clearly this is what has been happening in these cases, including the Lakhani case described in Mark’s blog post;  Liberty City case, the Albany case, the Fort Dix case; the Newburgh case; and the New Jersey case of Alessa and Almonte.

None of the people targeted would have done anything were it not for the provocateur egging them on. In fact, they didn’t do anything anyway; for the most part, they only said things, and said they wanted to do things. There may be a fine line beyond which prosecution is advisable, but when a provocateur gets involved everything gets skewed. I can accept the idea of infiltrating groups when there is reason to believe they may be planning something. But the government shouldn’t get involved in creating the “plot” – the agent/informant should just report on what is discussed and keep the surveillance going. That is not what happened with any of these cases. The provocateur always played the most active role, egging on the targets and sometimes making them extravagant promises. I’m hoping that these cases are dealt a decisive defeat in the Newburgh trial.