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Another Take on Terror

June 20, 2011

Another full-court press conference on terror. Another terrorism air ball.

That’s the tale of the tape in last week’s indictments of Ahmed Ferhani and Mohamed Mamdouh, two alleged “lone wolf” terrorists whom the police arrested last month.

At a high-profile City Hall news conference back on May 12, Police Commissioner Ray Kelly, Mayor Michael Bloomberg and Manhattan District Attorney Cyrus Vance accused the two of planning to blow up the largest synagogue in Manhattan and to kill as many Jews as possible.

It was a frightening scenario. Yet, the FBI refused to get involved in the case.

Kelly and Bloomberg made it out that this was standard operating procedure for the FBI, which, they implied, picked whichever terrorism cases caught their fancy.

But in fact that was not the case at all.

The Joint Terrorism Task Force — those FBI agents and NYPD detectives mandated specifically to investigate all acts of terror — rejected the case in part because they distrusted the police undercover who investigated the two men, law enforcement sources told this reporter.

Adding to the feds’ discomfort, the NYPD had refused to allow the JTTF to question the undercover, the sources said.

Moreover, the NYPD didn’t bring their case, even without the FBI, to any United States Attorney’s office, where all past terrorism cases have been prosecuted.

Instead, Vance indicted Ferhani and Mamdouh under a state terrorism law passed after 9/11 that had never been used before.

The line out of Vance’s office was that since the two were lone wolves not linked to an Al Qaeda-like group, the case was appropriate for state court.

But contrary to the old legal saw, made famous by former Chief State Judge Sol Wachtler, that a prosecutor can indict a ham sandwich, the fledgling Vance failed to convince grand jurors to indict the suspects on the top terror charge — that they had plotted to blow up synagogues with people inside.

Instead, the grand jury went for a lesser terrorism count, which implied that, although the pair had wanted to destroy a synagogue, they wanted to do it when it was empty.

And in contrast to the front-page accounts of Ferhani’s and Mamdouh’s arrests, the stories last Thursday about their indictments ran on page 19 of the Post and in three paragraphs on page 22 of the News. The Times ran the story in its New York section.

Ferhani’s lawyer, Elizabeth Fink, charged a frame up and said police knew that her client had a history of mental problems.

She and her co-counsel, Lamis Deek, said Ferhani had been institutionalized up to 30 times, most recently in 2009, and that the police were aware of this because of 9ll calls his mother had made to subdue him.

“You will see that this case is bogus.… It’s total entrapment,” said Fink — an old-time lefty whose defense roots go back to the Attica prison riot, the Black Liberation Army and the Black Panthers — Ferhani’s intentions were “absolutely” not terrorism, she said.

She compared the case to that of the Panther 21, who were arrested in 1969 and charged with conspiracy to blow up department stores and the New York Botanical Gardens. After a trial that lasted two years, a jury acquitted all the defendants in 45 minutes.

Their acquittal was an embarrassment for the Manhattan District Attorney Frank Hogan and for the NYPD, whose intelligence unit, known as BOSSI, had infiltrated various political groups.

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A result was the so-called Handschu agreement, which placed limits on police investigations of political groups, limits that a federal judge lifted after 9/11 but reinstated after police abused their authority.

Just because jurors rejected the top terrorism charge of plotting to blow up synagogues doesn’t mean that Ferhani and Mamdouh are out of the woods.

They still face 30 years in jail for a lesser terrorism count, as well as for a hate crime against Jews.

And even if they may appear to have been entrapped, it doesn’t mean that a judge will agree, or that they still won’t be convicted of terrorism charges.

Sadly, the system has used people suffering from mental illness to make terrorism cases.

This is the state of law enforcement tactics in our post-9/11, terror-frightened town. That’s the state of the NYPD’s fight against terrorism under Kelly.

This is also not the first time that the police went it alone without the FBI — and in that previous case, one of the principals was mentally ill.

Back in 2004 on the eve of the Republican National Convention at Madison Square Garden, police arrested, again to great fanfare, a Pakistani immigrant, Shahawar Matin Siraj, and charged him with plotting to bomb the Herald Square subway station, which just happens to be a block from the Garden.

The NYPD never informed the FBI of its investigation until the end of the case when police needed a federal warrant.

Siraj was subsequently tried in federal court in Brooklyn.

Evidence revealed that the police had paid $100,000 to a confidential informant who encouraged Siraj in his plot.

A co-defendant, James Elshafay, described himself as schizophrenic and said he spent time in a psychiatric ward. Shortly after his release, he said he plotted with Siraj.

Immediately after his arrest, he agreed to testify against Siraj.

People who know Siraj have described him as borderline retarded. To anyone who watched him at his trial, he appeared slow-witted.

Jurors rejected his entrapment defense. He was convicted and sentenced to 30 years in prison.

Then, there was the case of the four Newburgh ex-cons, arrested — also with great fanfare — by the FBI and the NYPD [which in apprehending them used an 18-wheel police vehicle that resembled an armored personnel carrier] for plotting to attack a Riverdale synagogue and an upstate military base with a Stinger missile.

In that case an FBI informant promised the four a BMW and offered to pay $250,000 for the weaponry.

At least one of the defendants was reportedly, like Siraj, at the lower end of the I.Q. scale.

They, too, pleaded entrapment.

Federal Judge Colleen McMahon, who presided over the case, wrote that the actions of the FBI were “decidedly troubling” but ruled that this did not constitute entrapment.

The four were also convicted. They face life in prison.

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Copyright © 2011 Leonard Levitt