THE BLOG
04/29/2014 04:01 pm ET Updated Jun 29, 2014

The Newburgh Sting

For many terrorism case watchers, the conviction of four men from Newburgh, New York -- for plotting to car bomb a pair of Jewish temples and shoot shoulder-fired missiles at parked military cargo jets -- has been the most troubling of all post-9/11 terrorism prosecutions. The concerns do not center on the potential lethality of the plot, but rather on the belief by Newburgh Four defenders that the men are victims of entrapment. Each man is serving a 25-year prison sentence for convictions now under appeal to the U.S. Supreme Court.

Three-and-a-half years after their trial concluded, the Newburgh Four are the subject of a new feature-length documentary, The Newburgh Sting, which premiered during the past week at the Tribeca Film Festival and will be shown on HBO in July.

The 80-minute film is notably one-sided, and the filmmakers make no secret they consider the case a miscarriage of justice, as does everyone interviewed in the film, except a former Assistant FBI Director. No law enforcement officials directly involved in the case agreed to talk.

After the first public screening, which I attended, co-director David Heilbroner told the audience, "The FBI is warping the war on terror into something shameful."

The film revives serious questions about the long string of domestic terrorism cases brought against men who the FBI itself has charitably described as more aspirational than operational. The Newburgh Four were not the real deal - not al Qaeda operatives or subscribers to al Qaeda ideology. They never went to a training camp in Afghanistan, Pakistan, or anywhere. These were impoverished men with petty criminal records, mostly for drug dealing, who lived in a downtrodden city 70 miles north of New York City.

The Newburgh Four first came to the public's attention when they were arrested on May 20, 2009, moments after placing three "bombs" each equipped with 30 pounds of C-4 plastic explosives inside cars parked outside two synagogues in the Riverdale section of the Bronx. The federal charges alleged they planned, after hitting the synagogues, to shoot shoulder-fired Stinger missiles at Afghanistan-bound military cargo planes on the runway at Stewart Air National Guard base, three miles west of Newburgh. The bombs and missiles were duds created by the FBI and made available to the men through an informant who had nurtured the plot from day one.

The Newburgh Four were set up by Shaheed Hussain, a Pakistani informant for the FBI who was on a fishing expedition for "jihadists." His "Operation Redeye" would secretly record dozens of hours of incriminating conversations with the defendants in his house and in his car. However, crucial conversations were not recorded, such as one in June 2008 outside the Newburgh mosque, where Hussain first met and befriended James Cromitie, a 42-year-old Muslim convert who became the primary operative of the Newburgh Four. Cromitie told Hussain he was Afgani (not true; he was African-American); that he wanted "to die like a shahid," or martyr, and "go to paradise," Hussain would report, adding that Cromitie also said, "I want to do something to America."

For 11 months thereafter, informant Hussain engaged Cromitie in crazy talk and enticed him to follow through on those "jihadist" wishes. As instructed by his FBI handlers, Hussain told Cromitie he was an agent of Jaish-e-Mohammed (JEM), a U.S.-designated Islamic terrorist organization that seeks to annex the Kashmir region of India for Pakistan.

Hussain told Cromitie JEM would pay the men $250,000 (far above the normal amount informants are authorized to offer sting targets) to carry out a terrorist attack on U.S. soil. He also promised Cromitie a BMW and a barber shop. But for months Cromitie did nothing. He did not recruit other men (which would prove a "conspiracy") and discontinued contact with the informant. In April 2009, after losing his $14,000 a year job at Walmart, Cromitie called his Pakistani friend with the cash.

Suddenly, the plot came together. Cromitie recruited three younger black men -- David Williams, Onta Williams (no relation), and Laguerre Payen. None of the defendants owned a car or had a driver's license, so Hussain did all the driving on "surveillance" trips. Hussain suggested the targets and the means of attacking them, and then provided the fake weapons to do so. Even when the temple "bombings" went down, it was Hussain, not the Newburgh Four, who turned on the fake detonators.

The Newburgh Four self-identified as Muslim converts, but Cromitie was the only one who attended the local mosque, and he did so only a few times. Still, the government labeled them religious extremists, and charging documents made sure to list their Arabic aliases. The Newburgh Sting asserts neither this "plot" nor any other post-9/11 terrorism plot has been hatched inside a U.S. mosque.

Through their attorneys, the Newburgh Four contend they went through the motions with Hussain only to con him for his promised cash. Cromitie is heard on the undercover tapes stressing a desire to avoid loss of life in their attacks on Jewish and military property. The temple bombs were placed at night when no one was around.

The Newburgh Four trial lasted six weeks, and none of the men testified in their own defense. Hussain was the main government witness and did not always testify truthfully about himself, according to judges who have reviewed the case. Like a lot of informants, he had a shady past, including a fraud conviction in New York for helping illegal immigrants obtain driver's licenses. The government paid him around $100,000 in cash and perks for his work on this case.

The Newburgh Four were widely seen as having an opportunity to become the first post-9/11 terrorism sting defendants to succeed with an entrapment defense, because, their attorneys argued, the men were in no position to commit the crimes without government assistance. One of the men, Payen, had a long history of psychiatric problems, including a past diagnosis for a form of schizophrenia.

But in the trial's closing arguments, prosecutor David Raskin persuasively stated the men "had a choice" to walk away from the plot but did not, nevermind calling the police. Raskin told the jury, "This would have been a colossal terrorist attack, and the fact that it was all fantasy really doesn't matter, because in their minds they thought it was real."

The jury took eight days to render its verdicts. The panel found Cromitie and the three other men guilty on almost every count. The most serious offense was conspiracy to use weapons of mass destruction in the attempted temple bombings, which made the men eligible for life imprisonment. Worse, it would turn out, conspiring to acquire and use anti-aircraft missiles carried a mandatory minimum sentence of 25 years.

Afterward, Payen's defense attorney, Sam Braverman, who appears prominently in the documentary, had an associate interview three jurors willing to discuss their deliberations. "They told us they were never going to vote 'not guilty,'" Braverman told me. "They accepted the government argument that they weren't entrapped. 'How do you know?' 'They did it.'"

While the defendants fell short in selling their entrapment defense, the presiding trial judge, U.S. District Judge Colleen McMahon, cast doubt on whether the Newburgh Four were a real threat and rebuked the government at sentencing.

"The government did not act to infiltrate and foil some nefarious plot; there was no plot to foil," Judge McMahon said in open court. "I doubt James Cromitie had any idea what a Stinger missile was."

"I am not a violent person," Cromitie told the court. "I have never been a terrorist, and I will never be a terrorist." As for his anti-Semitic and violent comments captured on tape, Cromitie said, "All that stuff I said was made up.... I am sorry for letting myself get caught up in this sting."

McMahon berated the men for crossing the line into criminality, but she rejected the government's request for life sentences. Instead, sounding weary, she imposed only the mandatory minimum of 25 years required for the proposed missile attack. In a post-sentencing ruling upholding the convictions, she continued to criticize the case.

"I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition," McMahon wrote. "I am left with the firm conviction that if the government had simply kept an eye on Cromitie, and moved on to other investigations, nothing like the events of May 20, 2009, would ever have occurred."

The big legal question remains: before they acted at the instigation of the informant, were the Newburgh Four predisposed to engage in a terrorist act?

In upholding their convictions last year, the U.S. Court of Appeals for the Second Circuit cited Cromitie's first violent statements about martyrdom and doing something to America as proof of predisposition. The appeals court found, "The Air Force personnel at Stewart Airport and the congregants at two synagogues in the Bronx are fortunate that the person who first approached Cromitie and suggested an operational plan was only a government agent."

The government not only holds all the cards in terrorism stings, it usually has a winning hand -- suspects on tape discussing plots, expressing radical, anti-American views; conducting surveillance of targets; planting fake bombs; taking a fake oath to al Qaeda (though not in the Newburgh case). There is usually an informant driving the conversations with a "ringleader" or "lone wolf" with no means of his own to do harm and no links to a terrorist group. Convictions with this kind of evidence have happened over and over again since 9/11 - an elderly Indian-British man trying to sell (fake) shoulder-fired missiles to "terrorists" in New Jersey; a 22-year-old Illinois man who tried to trade his stereo speakers for grenades to place inside a mall; a Somali-born teen intending to bomb a Christmas tree lighting ceremony in Portland, Oregon; four men spying to blow up fuel tanks at JFK Airport in Queens, New York; six men planning an armed assault on the Fort Dix, New Jersey, army base; seven men in Miami plotting to bomb a federal building in South Florida and the Sears Tower in Chicago.

When the Center For National Security at Fordham Law School studied 387 "jihadist" terrorism defendants since 9/11 -- the real deals and the wanna-be's -- it found 105, or 27 percent, landed in court as a result of sting operations. Of that group whose cases are resolved, all but a few have been convicted by guilty pleas or trial verdicts, with defendants receiving an average sentence of 18 years, according to the center.

"What I find problematic is when the defendant has no connection to real terrorists or access to weapons," Mike German, a former FBI counter-terrorism agent who appears in The Newburgh Sting, told me. German, now a fellow at the Brennan Center for Justice at NYU Law School, says, "There are real terrorists out there, and all of the resources used on these manufactured cases should be devoted to those real cases."

Those real cases include radicalized Americans who have gone overseas to terror camps, such as the six Yemeni-American men from Lackawanna, New York, and native New Yorker Jose Padilla. Ohio truck driver Iyman Faris conspired to attack the Brooklyn Bridge. Colorado resident Najibullah Zazi came home to backpack bomb the New York City subway. Chicago's David Headley assisted the Mumbai attack that killed 164 people. Connecticut resident Faisal Shahzad tried to detonate a car bomb outside a Broadway theater. Tamerlan Tsarnaev returned from a trip to Dagestan to terrorize the Boston Marathon with his younger brother. Stings may encompass fictitious plots, but the homegrown threat is not fiction.

Judging by the audience reaction, the aunt of defendant David Williams, Alicia McWilliams, emerges as the most powerful voice in The Newburgh Sting. After the premiere screening, she indignantly told the crowd: "You cannot manufacture a crime and give people 25 years!" Yet the men's defenders and the new documentary tell you that is exactly what happened in Newburgh.