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Thursday, July 9 2009 - Civil Liberties-Police State
The Alarming Record of the F.B.I.'s Informant in the Bronx Bomb Plot
By Graham Rayman
Last month, police and the FBI arrested four Newburgh men on charges that they had plotted to bomb synagogues in the Riverdale neighborhood of the Bronx and fire a missile at a military jet.
Mayor Michael Bloomberg and Police Commissioner Ray Kelly held press conferences at the synagogues to reassure New Yorkers about their safety. During Kelly's remarks, it was startling to hear the commissioner refer to al-Qaeda by name, if only to say that the four purported home-grown terrorists had no ties to Osama Bin Laden's organization.
As more details emerged, however, the less the four defendants sounded like men with the skills to plan a sophisticated terror plot. They were small-time crooks, felons with long criminal records whose previous activities revolved around smoking marijuana and playing video games. One defendant, Laguerre Payen, was arrested in a crack house surrounded by bottles of his own urine; his lawyer describes him as "mildly retarded."
It seemed fairly astounding that, for a full calendar year, such a group could remain interested in and plan anything more complex than a backyard barbecue, let alone a multipronged paramilitary assault, as the indictment against them alleged.
But what the indictment didn't say, and what the initial news reports didn't fill in, was the extent to which the fifth man in the plot, an unnamed FBI informant, had provided the glue to hold the Newburgh 4 together.
That informant was a Pakistani man named Shahed Hussain, code-named "Malik," who agreed to work for the FBI to obtain leniency after he was arrested in 2002 for fraud.
Over a period of about a year, Malik met with defendants James Cromitie, David Williams, Onta Williams, and Payen while under FBI surveillance. Cromitie allegedly said he was upset about U.S. forces killing people in Afghanistan and Pakistan. He talked about being willing to die as a martyr, and threatened to "do something to America."
The Newburgh bomb plot isn't the first of Malik's operations for the government. He played a similar role four years ago in an Albany case, in which he helped the FBI arrest a man named Mohammed Hossain, a cash-poor pizzeria owner, and his imam, Yassin Aref, after persuading them to launder $50,000 in a made-up plot to bring a missile to the U.S. and assassinate the Pakistani prime minister.
In both cases, Malik did not stumble upon active terror cells plotting to bring destruction on American soil. Instead, in both Newburgh and Albany, he needed long periods of time to recruit his Muslim contacts, spin elaborate tales about his terror contacts, and develop solid plans of action, all the while providing the defendants with large amounts of resources and cash incentives.
Malik was so successful that in Riverdale, the Newburgh 4 planted what they believed were actual bombs at two synagogues. In Albany, the defendants were only involved in a cash transaction that, theoretically, was tied to the sale of a weapon.
But in each case, the question remains: Would either set of defendants have done anything remotely like plant bombs or launder money for terrorists if not for the prodding and plotting and encouragement of Malik and the FBI?
And there's a more troubling question: When Malik tells his FBI handlers that the defendants are saying menacing things about America, is he actually telling the whole truth? Translations from the Albany case transcripts suggest that Malik routinely exaggerated and, in some cases, wholly fabricated the words of the defendants. When they talked about Islam being a religion of peace and of jihad being a way of inspiring fealty to Islam, Malik instead told his handlers that they had talked about Islam inspiring them to kill. Those exaggerated reports became the basis for the FBI's case against Hossain and Aref, who were both convicted and sentenced to 15 years in prison.
Aref is now housed in a maximum-security federal prison in Marion, Illinois, where he is held under strict rules that limit his ability to speak with the outside world, in a unit euphemistically called the Communication Management Program. Under the program's rules, he is allowed just one 15-minute phone call each week and is not allowed any contact visits. Hossain is housed in a federal prison in New Jersey.
The Newburgh 4 will face far longer sentences because they are accused of actually planting what they believed were explosive devices.
Like in the Albany case, however, they will be prosecuted almost entirely on the work done by Malik, who arrived in Newburgh about a year ago, driving a shiny black BMW and flashing a lot of cash.
As he had done in Albany, Malik showed up in Newburgh, went to a local mosque, and started looking for recruits.
He found them in four convicted felons with dozens of arrests between them. He initiated the conversations, introduced the idea of a terror plot, and delivered the money, equipment, and resources to back it up. He quickly became known as the guy with ready cash who was interested in the lives of others and was quick to provide aid and comfort.
Malik even offered to pay medical bills when he found out that one of his targets, David Williams, had a brother fighting liver cancer.
Williams's mother, Elizabeth McWilliams, tells the Voice that Malik approached her son with an offer of monetary assistance for her ailing younger son, Lord McWilliams, 20.
"He told my son [David] that he was going to help with the bills," she says. "He only met him [Malik] in March. My son came to me and said, 'Mom, don't worry about Lord. I met this Muslim brother who says he's going to help us.' "
Her younger son had signed up for the U.S. Navy and was preparing to ship off to boot camp when he was diagnosed with the disease. He was hospitalized for three months and had his spleen removed. Malik not only offered to help with her son's bills, McWilliams says, but also talked about sending him to Universal Studios, the Florida amusement park, when he was well enough to travel.
McWilliams says that Malik was supposed to hand over the cash on the very day that the police made the arrests.
Her son has been taken away, but the medical bills remain. "Right now, we're waiting to see a specialist in Manhattan," she says. "The liver is enlarged right now. We'll have to do another biopsy. He goes to Westchester every Thursday to have his blood checked."
Kathleen Baynes, girlfriend of defendant James Cromitie, says Malik was always around, driving in one luxury car or another—a Mercedes, a BMW, a Hummer, an Expedition, a tan Jeep.
"At one point, he promised to give James $10,000 with no problem," she says. "He came around so much that it was like he was stalking us. James would hide from him."
Baynes says that Malik also gave his targets large amounts of marijuana. He offered to pay an outstanding fine that Baynes owed. He gave the couple $217 for rent. He bought chicken and soda for the family. He paid for a birthday party for Baynes's child. He took them out to dinner on several occasions. He gave away a cell phone. He promised to buy the child a kid-size motor scooter. He offered to give Cromitie his BMW, and bought him a camera.
Baynes says she never heard her boyfriend make comments about Afghanistan: "He just liked to work and play video games and smoke a little weed."
Once, Baynes says, Cromitie was in North Carolina. Malik called him and demanded that he return to New York. "Brother," he said to Cromitie, according to Baynes, "You bring your ass the fuck back, and I will pay you even more. I'll send you a plane ticket."
"I was always skeptical," Baynes says. "I would say to James, 'What the hell is going on with this man? Something is not right. He's fraudulent, a fake.' He just came up here and ruined a lot of lives."
Malik came to the attention of law enforcement in 2002, when he was seen hanging around the Albany office of the State Department of Motor Vehicles.
Although he owned a dollar store, Malik approached people at the DMV offices offering his services as an interpreter. He would tell immigrants that the written test for a driver's license was very difficult and that, for a price, he would take the tests for them. He fraudulently took tests for other people about 90 times before he was arrested.
Things soon got worse for him. He declared bankruptcy in the summer of 2003. Then, in October, a building he owned was destroyed in a fire—it was uninsured, and he lost everything.
With so many setbacks at one time in his life, Malik may not have been difficult to persuade to accept work as an FBI informant in return for wiping away his criminal case and the assurances that he wouldn't be deported.
His first case: helping the agency set up a sting to catch two DMV employees who had aided him in his own illegal schemes.
Next, he was given the names of men who wanted to distribute heroin. Malik wore a wire, bought some of the heroin, and even received a shipment of the stuff from Afghanistan. In that case, 11 people were arrested and pleaded guilty. One man escaped and became a fugitive.
Then began an even more elaborate case. In what may have been their first meeting, the pizzeria owner and father of six, Mohammed Hossain, approached Malik in July 2003, asking for help in obtaining a DMV learner's permit for his brother.
After gaining Hossain's trust, Malik spun a remarkable tale over the next few months: He was actually a wealthy arms importer who backed radical Islamic groups. He told Hossain that he was a smuggler bringing Stinger missiles into the U.S. and laundering the money to pay for them. He eventually claimed that he had been hired by a group of terrorists to bring a shoulder-mounted rocket into New York to assassinate Pakistani prime minister Pervez Musharraf. And he said he would eventually be paid $50,000 to do it.
Malik asked Hossain to loan him $50,000, and Hossain consented, with Malik agreeing to pay the money back at a rate of $2,000 per month. According to Islamic custom, such an informal loan needed a witness. Hossain brought in Yassin Aref, his imam at the local mosque, Masjid Al-Salam.
It turned out that Aref was already being watched by the FBI, for reasons that are somewhat bizarre.
Earlier that year, on a battlefield in Iraq, American soldiers searching dead Iraqi fighters came across a scrap of paper bearing Aref's name, a phone number, and an Arabic word that the Americans mistranslated as "commander."
Actually, the word was Arabic for "brother," a common term used by Muslims the way Americans use "dude" or "buddy."
Aref is a well-educated Iraqi Kurd who had fled the regime of Saddam Hussein and spent several years in Syria before gaining status as a United Nations–sponsored refugee, which allowed him to come to the United States in 1999. Federal investigators say that while in Syria, Aref befriended a man who later formed a terrorist organization. But Aref was not a part of that group himself. The fact that his phone number was found on a soldier, however, understandably made the FBI curious about his connections.
By 2003, Aref was a trusted friend to Hossain, and he agreed to witness the loan to Malik.
Aref's attorney, Terence Kindlon, points out that the imam's participation was minimal: He simply witnessed a transfer of cash—he wrote out receipts for it and gave each of the men a copy.
Hossain and Aref were arrested on August 4, 2004, with the same sort of pronouncements of national salvation that would follow the Newburgh arrests.
Then-Governor George Pataki hailed it as a victory in the War on Terror. Albany mayor Jerry Jennings reassured the public that the government was watching: "We want people to feel good about what happened today because we are on top of it. We are being proactive . . . to make sure our communities are safe."
In the subsequent trial, neither Aref nor Hossain was ever linked to any known terror group.
Shamshad Ahmad believes he may have been the target of Malik's first attempt at a terror case.
Like Aref, he's an imam at Masjid Al-Salam, the Albany mosque. He says Malik contacted him in September 2002 about providing shelter to a battered Pakistani woman and her children. But Ahmad was immediately skeptical, and cut all association with him.
Other members of Ahmad's mosque told him that Malik had approached them with various illegal schemes, apparently trolling for possible targets. In July 2003, he found a potential target in Hossain. (Since the arrest and trial of Hossain and Aref, Ahmad has written a book about the case.)
Ahmad says that Hossain was extremely vulnerable to Malik for three reasons: He was desperate for money to keep his pizzeria afloat; he was a religious zealot; and he was prone to rambling on about religion and politics. As in Newburgh, Malik gave gifts to his target—in this case, toy helicopters for Hossain's children.
The two men met more than 50 times over the next year, resulting in 50 hours of government surveillance tapes.
FBI protocol called for Malik to speak with his FBI handler, Tim Coll, both before and after each of his meetings with Hossain. Memos were then prepared for FBI files to detail each meeting. These memos are known as "302s" in FBI parlance, and provide the agency with a developing summary of evidence that will be used later at trial.
Time and again, however, the material in the 302s in the Albany case were very different from the actual transcripts of recordings that the FBI secretly made of conversations between Malik and his targets.
While Hossain and Aref did make statements that could be construed as anti-American, they were also resistant when Malik tried, repeatedly, to get them to make statements supporting violence against Americans.
"Malik would depict Hossain as anti-American [in the 302s], while the actual translations done several months later showed that Hossain was actually espousing his respect for the United States and criticizing the terrorists," Ahmad writes.
The Voice compared the FBI's 302 memos to actual transcripts of conversations between Malik and Hossain, and found many discrepancies:
• An August 7, 2003, meeting. The 302 memo: Malik arranges to give Hossein's brother the answers to a driver's license test for a $75 fee. The transcript: This meeting actually contains a long discussion on politics and religion. Hossain describes himself as a law-abiding citizen. "I never harming anybody," he says. "People like me, society get benefit." When talk turns to Bin Laden, Hossain notes that suicide is against the Koran. "It is totally wrong—there is no right to suicide yourself," he says. "If someone [commits] suicide, it is haraam [a wrong]. They cannot enter Paradise." The transcript also shows that Hossain criticized the World Trade Center attack as "bad, very bad." He also says, "We should have a good relationship with unbelievers, then because of our goodness, Islam will spread."
• September 30. The 302 memo: The two men meet at Hossain's pizzeria. Malik reports that "Hossain stated it was OK to kill nonbelievers in the name of Allah." The transcript: "Jihad is seeking knowledge," Hossain tells Malik, according to the translation. "Get up early in the morning while the sleep is overwhelming you, do brush, wash up, and go to the morning prayer." At another point, Malik says, "Infidels are killing Muslims left and right. I want to fight with them and teach them a lesson." But Hossain doesn't take the bait: "Muslims are suffering because they are not following the religion, the teaching of the Prophet."
• October 20. The 302 memo: Hossain is reported to say, "Anything you do in the name of Allah is not a sin, including killing people." The transcript: Malik is heard to ask, "What about committing jihad in the name of Allah?" Hossain answers, "Our jihad is to live a righteous life and help guide so many Muslims to the right path, stop the wrong actions, to come to the prayer. This is jihad."
• November 20. The 302 memo: The investigation reaches a critical stage. Malik reveals that he is a weapons dealer. He shows Hossain what he claims is the tube of a surface-to-air missile, which he plans to sell to people in New York for $50,000. Malik reports that Hossain responds by saying, "It was OK to kill the nonbelievers; however, it was not OK to commit suicide bombings because the Koran forbids suicide." The memo also reports that Hossain says that al-Qaeda was "good for Muslims" and that "if Muslims united, they could be the police of the entire world, not America." The transcript: When Malik invites Hossain to participate in his scheme, Hossain refuses, saying that it is illegal. He then goes on at length to say that "creating violence here or there is neither the solution nor the practice of the Prophet." He tells Malik to stay away from the people who are plotting to use the missile. Malik insists that attacking non-Muslims and killing them are his way of pleasing Allah and going to Paradise. "You have your own ways, but Allah will not allow you in a billion years to kill yourself or someone else," Hossain says. "Establish the five daily prayers. That's the way to begin."
• December 5. The 302 memo: Another meeting at Hossain's pizzeria. Malik tells the FBI that Hossain says, "If [I] did not have a family to think about, [I] would pick up arms and start killing Mushriqs [Muslims who betray other Muslims]." Malik reports that Hossain supports the (fictional) attempt to bring in weapons. The transcript: Hossain again speaks against violence. "I don't believe in your method—that's why I don't take that path," the pizzeria owner says.
• January 14, 2004. The 302 memo: Malik meets Hossain's friend, Aref, and tells him that he gets money from selling missiles and ammunition to an Islamic radical group. Malik reports that he tells Aref that the people he is selling weapons to plan to attack the Pakistani prime minister, Musharraf. The report goes on to say that Aref blames Musharraf for betraying Muslims to side with America, that he has heard of the radical group Malik claims to be selling to, but doesn't know much about it, and he warns Malik that anyone with links to the group could go to jail. The memo specifies that Aref doesn't tell Malik not to help the group, but only to be careful. The transcript: Besides telling Malik to be careful, Aref also says he knows little about the group, but if they are fighting for their independence, he may help them. He tells Malik to help refugees and the needy. "I am neither asking you to help them or not help them because I don't know them very well," Aref says. Malik then asks Aref about his views on Bin Laden, but Aref fails to take the bait. Instead, he points out that out of 14 million Saudis, perhaps only 400 follow Bid Laden. "A Muslim leader is whom every Muslim follows," he says.
• July 1. The 302 memo: Malik reports that he has criticized Hossain for pro-American comments he has made in a newspaper article. According to the memo, Hossain responds by saying that he "only loves America's money," and actually hates America. In his heart, Hossain says he feels like Bin Laden. The transcript: When Malik ridicules Hossain for saying positive things about the United States at the same time that he is helping plot a terrorist attack, Hossain objects. He shouts that he is not Bin Laden, and that he came to the U.S. because he saw the good in this country.
In the transcript, Hossain repeatedly says that Muslims should treat Americans well for the good of their religion.
Asked at trial whether the things he told the FBI were the things that Hossain and Aref had actually said, Malik testified that he told his FBI handlers what the defendants had meant.
Defense lawyers for Hossain and Aref tried to make an issue of that at the trial, arguing that Malik misled his FBI handlers about the views of the defendants. In a case that had no real terror plot, in which the defendants did not buy any weapons or make any plans to blow anything up, Malik's portrayal of the two men as anti-American was a key element of the prosecution.
During the trial, Malik was so resistant to the cross-examination that he repeatedly argued with the defense lawyers, gave roundabout or incoherent answers, and said, "I don't recall" a total of 50 times. He was admonished multiple times by Judge Thomas McAvoy to answer the questions that had been asked.
At one point, McAvoy's frustration was reflected in a statement fairly startling for a judge: "Is someone going to read this someday and understand it?"
"I am not sure, at this point," a defense lawyer replied. "I'm working on it."
During Malik's time on the witness stand, federal prosecutors questioned him using only 17 pages of the transcripts, an indication that they wanted only limited testimony from the informant.
Defense lawyers, on the other hand, cross-examined him by referring to more than 100 transcript pages.
"What they're presenting to you was manipulative and deceptive," Hossain's lawyer, Kevin Luibrand, told the jury in his closing statement. "Malik essentially persuaded my client to take part in the scheme.
"Hossain was just a hardworking businessman before Malik arrived," Luibrand argued. "If Malik had not come into his life, Hossain would be making pizzas, tending to his family, and practicing his religion," he said.
Despite whether either Hossain or Aref would have had anything to do with terror organizations without the constant prodding of Malik, the receipts that Aref made out for the $50,000 loan proved to be powerful evidence for the Albany jury.
The two men were found guilty of money laundering, conspiracy to engage in money laundering, conspiracy to provide material support in connection with an attack with a weapon of mass destruction, and conspiracy to provide material support to a terrorist organization. Aref was also convicted for lying to an FBI agent about whether he knew the founder of a radical Islamic group.
Aref, now in special lockup at the Marion, Illinois, federal penitentiary, is among other prisoners caught up in similar stings, says Kathy Manley, one of Aref's lawyers—men who weren't planning on attacking the United States until informants recruited them, who were convicted for laundering money, violating federal rules for reporting financial transactions, or sending money overseas to questionable groups.
A report by the Center on Law and Security at New York University found that of 619 terror cases brought by federal prosecutors, only 10 percent actually resulted in convictions for terrorist charges.
In the Newburgh case, because the four accused men actually did plant what they thought were bombs, the government will have to rely less on statements made on tape. But once again, Malik's role, and what he told his FBI handlers, will be at the center of the case.
There is no publicly disclosed FBI rule about confidential informants giving gifts to the targets of the investigation, but the issue will certainly come up if the defendants don't plead guilty and a trial is scheduled. Defense attorneys will argue that Cromitie and the others did what Malik asked because he was handing out gifts and promising much more.
"One is essentially buying one's way into the confidences of the targets," says Scott Greenfield, a criminal defense attorney not involved in either the Albany or Newburgh cases. "The problem is that as a prosecutor, you want to show that the targets wanted to commit a crime, and the informant simply facilitated that. Now, you have an entirely different motivation."
"Someone up high in the Justice Department has to take a look at this policy of doing cases where it looks like and feels like entrapment," says Terence Kindlon, the lawyer who represented Aref. "You're taking advantage of gullible people in Newburgh. In Albany, you're taking advantage of Hossain's financial needs and Aref's naïveté.
"They manufactured a crime and found four dolts to be defendants," he adds. "If Malik had gone to Newburgh and wanted to have a conspiracy that distributed guns, drugs, did prostitution, he could have found the same four people. I'd be willing to bet my car that not one of these guys could even find Afghanistan on a map."
If convicted, the Newburgh plotters face long sentences. The men convicted of plotting a similarly far-fetched plot to make a military assault on Fort Dix, New Jersey, for example, were sentenced to life in federal prison.
As for Malik, he has now been used in four different stings: the driver's license scam, the Afghanistan drug case, the Albany case, and now the Newburgh case. Will the FBI use him again? A spokesman declined to discuss details of the firstname.lastname@example.org
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