Enemies Within (21 page)

Such errors—and police confused Sunnis and Shiites more than once—mirrored those made by Demographics Unit detectives who mistook Montenegrins for Albanians, and Lebanese Christians for Syrian Muslims. And they raised a worrisome question about both programs: If there was ever a credible threat against New York, if al-Qaeda set a suicide bomb plot in motion inside the city, could the NYPD even rely on the information it had?

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It is difficult to overstate the revolutionary nature of what Cohen and Sanchez had created: In a few short years, the NYPD—a force twice the size of the FBI—had gotten into the business of secretly assessing the religious and political views of US citizens, believed that it was not constrained by jurisdictional boundaries, and viewed activities protected by the First Amendment as precursors to terrorism.

Officially, the NYPD was following the same rules as the FBI. That’s
what Cohen assured Judge Haight, and the judge took Cohen at his word. If the NYPD was doing things differently, that’s because Cohen was charting a new course, and the FBI was still stuck in its old, bureaucratic ways.

“If NYPD’s programs were more innovative than FBI’s, it was a direct result of Cohen’s creative initiative,” Michael Sheehan, the department’s former deputy commissioner for counterterrorism, wrote in his book
Crush the Cell
.
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In truth, top officials at Intel understood that zone defense—the idea of monitoring beliefs to identify future criminals—was not something the FBI could square with federal law and its own rules. The bureau couldn’t investigate activities covered by the Constitution as the NYPD did. The police considered that a flaw in the FBI’s rules, not an indication that Cohen was crossing lines. Sanchez said as much to Congress in 2007:

“Part of our mission is to protect New York City citizens from becoming terrorists. The federal government doesn’t have that mission, so automatically, by definition, their threshold is higher,” he said. “So they’re going to have a heck of a lot harder time having to deal with behaviors that run the gamut on First and Fourth Amendment rights and to be able to even look and scrutinize them without having even reached a standard of criminality that you need if your prime objective is, you’re going to lock them up.”

Agents wanted to know what Cohen was working on so they could prevent last-minute fiascos such as the one in 2008 when Abdel Hameed Shehadeh, the Palestinian from Staten Island whom the NYPD was monitoring, flew to Pakistan, and the FBI had no idea what was going on. And the FBI had capabilities that the NYPD did not, such as international wiretapping and nationwide subpoena power. It made more sense to cooperate from the beginning, the FBI argued.

When Mike Heimbach became the FBI’s head of counterterrorism in 2008, he went to New York for a meeting at the NYPD.
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He made his
case that they needed to work together more closely. The FBI needed to know what Cohen knew. They needed to coordinate better.

Cohen was polite but firm. He wasn’t going to simply turn over information to the FBI and trust the bureau to handle it. He knew that agents were frequently dismissive of Intel’s reporting, so how could he be sure his information would be investigated correctly? Cohen said he wasn’t trying to be confrontational, but, in all fairness, it was the FBI that had failed to connect the dots for years. And that failure had come crashing down on New York.

You didn’t lose three thousand Americans, Cohen said. I did.

And now the FBI was asking the NYPD to fall in line again.

Cohen assured Heimbach that the NYPD wouldn’t withhold information if it uncovered an imminent plot. But he wasn’t going to go back to the days when the FBI took the lead and the NYPD was left to do little more than trust and hope.

Getting information from the NYPD had its risks, too. By accepting it, the FBI was affixing its seal of approval to the department’s practices. When FBI inspectors came around to review case files, if they found information about protesters, religious sermons, and student groups, the agent who accepted the information would have to answer for it. It wouldn’t matter that it had come from Cohen’s investigators.

Once, the NYPD sent Don Borelli a report from a mosque saying that worshippers were bathing corpses and preparing them for burial in accordance with the Islamic ritual known as
ghusl
. Borelli didn’t know what to do with the report. There was nothing criminal in there, no hint of anything nefarious. If he placed it in the FBI’s files, he’d probably have to explain it someday. So he shredded it.

The FBI office in New York also had a standing policy against accepting files from the Demographics Unit. Larry Sanchez had shown one of the reports to a senior agent, who’d consulted with the FBI’s lawyers. They decided that accepting it would violate their own rules designed to protect civil liberties. The Demographics Unit wasn’t simply
trying to know the neighborhoods, the FBI agents and lawyers concluded. It was running a widespread intelligence-gathering operation. The Demographics detectives, the FBI decided, were effectively operating as undercover officers, targeting businesses without cause and collecting information related to politics and religion.
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Cohen saw that kind of attitude as bureaucratic resistance, the kind of foot-dragging that had hurt the CIA so badly in the 1990s and contributed to the intelligence failures of 9/11. It reinforced the notion that the FBI wasn’t interested in sharing information or working together. FBI agents wanted the NYPD to step aside and let them take charge.

To a large degree, Cohen was right.

When FBI agents griped about NYPD Intel, the complaints usually fell into one of three categories. Some took offense at tactics that they said violated civil rights. A second group focused on the fact that the NYPD could do things that the FBI couldn’t. It wasn’t clear whether these agents would be satisfied with the tactics if they were the ones using them. The third group took a more practical objection. The NYPD, they said, didn’t have the basic ability to conduct international or nationwide counterterrorism investigations. By working alone, this third group of agents argued, Cohen made the nation more vulnerable.

The first complaint, about the civil liberties, was a moot point. The NYPD had briefed the FBI and the Justice Department about its programs. And though the briefings didn’t get into the details of cases and tactics, they offered plenty of opportunities to explore the law. Attorney General Alberto Gonzales once left a meeting with the NYPD, turned to an aide, and said something to the effect of: “We could never do that.” Justice Department officials at the meeting took that to mean that such controversial programs carried a political risk that New York was willing to take but Washington could not. Nobody took it as a suggestion to inquire about whether it was legal.
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Besides, while agents might wring their hands and complain about the constitutionality of the NYPD’s tactics, the FBI remains the agency
responsible for investigating civil rights abuses by police departments. Somebody could have opened an investigation.

There was little appetite for such a confrontation. FBI Director Robert Mueller had made it clear that he was not interested picking a fight with a politically connected police chief over how to fight terrorism in the city that had seen the worst of it. He fielded complaints from senior agents when the first NYPD officers arrived in their overseas postings and again when the NYPD’s detective went to the CIA’s training camp. Mueller let it slide. In cities like Portland, Oregon, the police refused to participate in the FBI’s Joint Terrorism Task Force, so Mueller was willing to countenance a police department that was perhaps overengaged in the fight against terrorism.

Once, while Mueller visited the FBI office in Newark, agents asked him why the NYPD was allowed to operate unilaterally outside its borders, without coordinating with the Joint Terrorism Task Force. Mueller told the agents to stop complaining.
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So, when it was convenient, the FBI and the Justice Department were willing to overlook their concerns. When Cohen brought the FBI a nascent case in 2003 against a radical Islamic bookstore clerk in Brooklyn named Shahawar Matin Siraj, FBI agents in New York turned up their noses. Amy Jo Lyons, who preceded Borelli as assistant special agent in charge of the task force, told colleagues that the FBI shouldn’t have anything to do with the case. Siraj was borderline mentally retarded and there was no evidence he was interested in terrorism until he met Cohen’s informant, an unemployed Egyptian engineer named Osama Eldawoody. Eldawoody made about $100,000 keeping tabs on people and mosques for Cohen.

FBI and Justice Department officials who reviewed the case worried that Eldawoody seemed to be goading the bookstore clerk into a terrorist plot. Plus, it seemed to Lyons and others that the police were recording conversations selectively, taping and keeping the worst ones but leaving out those that might undermine the case.

Federal prosecutors in Manhattan reviewed the case and refused to bring charges.
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Terrorism cases were hot items at the Justice Department, though, and prosecutors in Brooklyn were eager to land one. They reviewed the Siraj investigation and said they were interested. Cohen took his case to Brooklyn and never brought another one to Manhattan.

At the Justice Department in Washington, senior officials scrutinized the files. They agreed there were concerns about the reliability of the informant and the consistency of the recordings. But they determined that it was winnable.

And, in the end, they were right. Siraj and another man, James Elshafay, were arrested on charges of plotting to blow up the Herald Square subway station. The arrests were announced August 27, 2004, shortly before the opening of the Republican National Convention in New York, where President George W. Bush would be nominated for reelection.

Siraj argued entrapment but neither jurors nor a federal judge believed it. Though he never had a bomb, Siraj scouted the subway stop and sketched a rough map of the target.

“The crimes committed here were extremely serious,” Judge Nina Gershon said while sentencing Siraj to thirty years in prison.

Kelly called the sentence a milestone in his efforts to safeguard New York City. Years later, however, the origins of the investigation remain in dispute. A reporter who interviewed Cohen soon after the arrest said a Brooklyn resident called a police tip line about Siraj.
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Mitchell Silber, the former analyst, says the Demographics Unit identified the bookstore as a hot spot and that’s what led police to Siraj.
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Under oath, however, Assistant Chief Thomas Galati testified the Demographics Unit had generated no cases.

The Herald Square case gave the Justice Department deep insight into Cohen’s new tactics. And though many FBI agents and even some NYPD Intel veterans still shake their heads dismissively at the case, it
was a victory for the NYPD. Cohen’s efforts had passed their first major test with the Justice Department, the FBI, a federal judge, and a jury.

So, typically, disputes between the NYPD and FBI never went beyond grousing on both sides of the footbridge in New York.

Cohen did share his best informant with the JTTF around 2008, with disastrous consequences.

His name was Ali Abdelaziz,
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an Egyptian mixed martial arts expert. The NYPD recruited him in 2002 when he was a twenty-five-year-old sitting in a Colorado jail cell on charges of document forgery. Abdelaziz became an asset in the NYPD’s long-running investigation into the Muslims of America, an extremist group based in rural Virginia. He was among Cohen’s most important and best-paid informants, earning by his own account hundreds of thousands of dollars for his efforts.

Cohen wanted to share Abdelaziz, who was known in files as Confidential Informant 184, with the FBI so that he could work overseas. The bureau agreed to sponsor Abdelaziz and provide him with a special green card so he could enter and leave the United States. He worked in Trinidad and Tobago, Venezuela, and elsewhere. But the more that FBI agents worked with him, the more suspicious they grew. On April 8, 2008, at the FBI’s demand, NYPD officials took Abdelaziz to the bureau’s office downtown, where agent Michael Templeton strapped him to a polygraph machine.
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The questions started simply.

“Are you now in New York City?”

“Are you currently employed?”

“Is today Friday?

When Templeton asked Abdelaziz if he intended to be honest with the FBI about whether he’d told anybody that he was a government agent, Abdelaziz said yes. The machine said otherwise.

Templeton seized on it. Polygraphers commonly use that question to spot double agents, people working as a spy for one agency but whose true loyalties lie with another. As he pressed Abdelaziz, the FBI
agent began to believe that he had told people in Egypt about his secret life. Again and again, Abdelaziz denied it. The polygraph said he was lying. Templeton continued until, finally, Abdelaziz asked to use the bathroom.

Realizing that things were not going well, the NYPD officials in the room tried to smooth things over with Templeton. They offered him explanations for why Abdelaziz might have seemed deceitful. But when Abdelaziz returned from the bathroom, tension remained. As Templeton delved into Abdelaziz’s past, the NYPD abruptly ended the test. It was an embarrassing moment. The department’s prized informant was apparently lying. The FBI closed the file as “Deceptive with no admissions, interrupted and terminated by the NYPD.” The FBI severed its relationship with Abdelaziz, and the government tried unsuccessfully to deport him.

That blowup occurred in private. While it led to eye rolling at the FBI over the reliability of Cohen’s informants, it did not undermine the support that the NYPD’s counterterrorism efforts enjoyed in New York.