Last Saturday, The New York Times published an extensive article by Richard Perez-Pena headlined “Koch and N.Y.U. Clash Over Terrorism Report.” The article stated, “The report, focusing on three high-profile cases, accuses law enforcement agencies of luring young Muslim men into violent plots and makes broad assertions that the government stigmatizes Muslims. The charge is nothing new; defendants in many terrorism trials in the past have alleged entrapment, but juries have rejected that defense.”
First, some background. On August 24, I was told by Norman Liss, a lawyer, friend and fellow alumnus of New York University Law School, that a report had been issued by the school which he believed to be misleading. Norman had contacted Richard L. Revesz, Dean of the law school, who responded, “Robust discussion of varying views is a hallmark of academia – and of a democratic society.”
Norman did not believe that reply to be appropriate and inquired whether I would pursue the matter. I agreed to do so.
My own interest in this subject is the result of attacks made upon Congressman Peter King, who as Chairman of the Homeland Security Committee, held hearings on homegrown terrorism in the U.S. Muslim community. Congressman King was strongly criticized by a number of civil rights organizations and others for holding the hearings, and in particular for singling out the American-Muslim community. I supported the Congressman, believing that the various acts of terrorism in the U.S. following 9/11 indicated there was cause to believe that homegrown terrorism in the American-Muslim community was an issue about which we should all be concerned.
I read the 81-page report prepared by the faculty and students of the Center for Human Rights and Global Justice and the International Human Rights Clinic, issued under the imprimatur of the law school. I decided to ascertain from Congressman King whether he believed the report to be factual. I wrote to him on August 24, stating, in relevant part:
“The report is entitled, “Targeted and Entrapped, Manufacturing the ‘Homegrown Threat’ in the United States.” I was surprised to read the following statement in its Executive Summary: ‘Since September 11, 2001, the U.S. government has targeted Muslims in the United States by sending paid, untrained informants into mosques and Muslim communities. This practice has led to the prosecution of more than 200 individuals in terrorism-related cases. The government has touted these cases as successes in the so-called war against terrorism. However, in recent years, former Federal Bureau of Investigation (FBI) agents, local lawmakers, the media, the public and community-based groups have begun questioning the legitimacy and efficacy of this practice, alleging that-in many instances-this type of policing, and the resulting prosecutions, constitute entrapment.’
“It appears to me that if most of those 200 cases led to convictions, CHRGT’s assault on the investigations becomes ludicrous. I assume the defense of entrapment was used in all or most of the cases they refer to. Would you know in how many of those cases that defense was used and whether it was dismissed or upheld?”
Peter King provided me with a copy of his letter to Dean Revesz dated August 29. I am setting forth his letter in full and the response of Dean Revesz. The correspondence is extensive, but I assure my readers, well worth reading and has not appeared elsewhere except for a few quoted sentences.
“Dear Dean Revesz: My good friend (and adviser) Mayor Ed Koch, who is a distinguished alumnus of New York University Law School (LL.B. ‘48), has forwarded to me the May 11, 2011 report of the NYU Law School’s Center for Human Rights and Global Justice, Targeted and Entrapped: Manufacturing the ‘Homegrown Threat’ in the United States. Leaving aside its policy recommendations, about which reasonable minds may differ, I write to bring to your attention omissions of important facts from this report, omissions which bring into question its scholarly value and strident conclusions.
“The 81-page report charges that ‘the United States government has been targeting Muslims’ by sending ‘paid informants into Muslim communities without any basis for suspicion of current or eventual criminal activity.’ The purported ‘abusive use of informants’ has allegedly ‘been instrumental to perpetuating the government’s claim that the United States faces a ‘homegrown threat’ of terrorism.’ The report concludes that our government fails to guarantee, without discrimination, the right to a fair trial and the freedoms of religion, expression and opinion. In the context of our ongoing War on Terror, and the upcoming tenth anniversary of the deadly attacks upon Lower Manhattan, these words can fairly be described as incendiary.
“As the key examples of the government activity to which the Center for Human Rights and Global Justice objects, the report cites the cases of Eljvir, Dritan and Shain Duka; Shahawar Matin Siraj; and David Williams. The Duka brothers, Siraj and Williams were convicted of plotting to attack Fort Dix, the Herald Square subway station, and Bronx synagogues and Stewart Air National Guard Base, respectively. Far from abusively using informants to target innocent Muslim-Americans without any suspicion of criminal activity, each of these defendants came to the attention of authorities independently of the actions of police informants.
“In the case of the Dukas brothers, ‘The government’s investigation started after it learned that an individual brought to a local store a video to be duplicated onto a digital video disk,’ which showed ‘men shooting assault weapons at a firing range in a militia-like style while calling for jihad and shouting in Arabic ‘Allah Akbar.’ The report facetiously describes this evidence as ‘vacation video footage’ of ‘recreational activities—riding horses, skiing, playing paintball, shooting at a firing range, and pulling pranks.’
“In the case of Siraj, he first came to the attention of the New York Police Department when a citizen ‘phoned in a report to a terrorist hotline the NYPD had set up after 9/11 that there was a young man who regularly engaged in virulent anti-American tirades.’ The court later found that the evidence against Siraj ‘not only established all the elements of the crimes charged, but it also amply established that defendant was predisposed to commit the crimes charged beyond a reasonable doubt,’ and that testimony ‘established that it was the defendant who originated the plan to blow up the 34th Street subway station, that is, it was the defendant who originated ‘the criminal design’ and not the government.’ Siraj’s conviction was upheld by the United States Court of Appeals for the Second Circuit, and further review of that decision was denied by the United States Supreme Court.
“The Williams case is more complex, and the court expressed some reservations about law enforcement tactics in neutralizing this plot. It is not clear from the public record why law enforcement authorities were first interested in the Masjid al-Ikhlas mosque. However, the lead defendant in the conspiracy to attack the synagogues and the air base, James Cromitie, came to the attention of authorities when he approached an informant and struck up a conversation. Cromitie stated that ‘he would love to travel to Afghanistan and die like a shahid, a martyr,’ and that he wanted ‘to do something to America.’ Cromitie subsequently related to the informant that he hated Jews, Americans and U.S. servicemembers, and expressed a desire to assassinate the President — at which point the FBI prudently opened a criminal investigation.
“Williams was recruited into Cromitie’s conspiracy not by the informant, but by Cromitie himself; indeed, Williams himself later recruited another co-conspirator for the plot. In the words of the court, Williams ‘immediately and enthusiastically entered into planning the criminal venture.’ Williams conducted surveillance of potential targets, offered suggestions for how to carry out the attacks (including where to launch an anti-aircraft missile at a military helicopter), and expressed a desire to be armed with a handgun during the attacks.
“Finally, Cromitie and Williams were filmed planting ‘what they thought were lethal improvised explosive devices at the Riverdale Temple and the Riverdale Jewish Center … There is absolutely no doubt that the defendants committed the charged crimes.’ The court concluded that ‘Not a scintilla of evidence suggests’ that Williams was ‘coerced, pressured or manipulated’ by anyone, ‘let alone that the Government employed tactics that were in and of themselves conscience-shocking in order to persuade them to participate in the scheme.’
“The report argues that each of these three men, as leading representatives of a class the Center identifies as consisting of over 200 (unidentified) Muslim men accused of terrorism, were entrapped by the government. Yet as the report sheepishly admits in a footnote, ‘since September 11, 2001, in six trials, ten defendants charged with terrorism-related crimes have formally argued the entrapment defense, but none have prevailed’ (emphasis supplied). Legal scholars are entitled to disagree with the results of any jury verdict or judicial decision. Yet the fact that not a single juror or judge has found entrapment in these cases, in a decade’s worth of litigation by able defense and petitioners’ counsel, speaks to the weakness of this argument. The Center might, upon reflection, give greater weight to the results of our legal system.
“Targeted and Entrapped was published under the imprimatur of NYU Law School. Especially during wartime, attorneys and academics have responsibilities as both citizens and scholars. Asserting that our law enforcement agents target, entrap and imprison fellow Americans on the basis of religious discrimination, in violation of these officers’ oaths to the Constitution, is as gravely serious a charge. My ancestors experienced bias in Ireland on the basis of our Catholic faith, and Mayor Koch’s fellow Jews suffered persecution and, ultimately, genocide in Europe because of theirs. As such, we would be among the first to investigate and criticize any religiously-motivated abuse of government power in this country. While no one should ever shrink from honest patriotic dissent, neither should anyone make inflammatory charges of misconduct against the government, on the basis of what can generously be described, in the case of Targeted and Entrapped, as unfamiliarity with basic facts.
“Targeted and Entrapped does a disservice to NYU Law’s rich and parallel traditions of public service and rigorous scholarship. I trust that the Law School will hold the Center for Human Rights and Global Justice to NYU’s usual high standards in the future. Sincerely, Peter T. King”
Dean Revesz’s response is as follows:
“Dear Congressman King: I am writing in response to your letter regarding “Targeted and Entrapped,” the report prepared by students and faculty of the International Human Rights Clinic (IHRC) and issued jointly with the Center for Human Rights and Global Justice (CHRGJ), both at the New York University School of Law.
“I am glad you wrote; yours is a powerful voice on this topic. I appreciate the thoughtfulness and thoroughness of your letter and have shared it with the report’s authors and with the CHRGJ’s faculty directors.
“I hope you will appreciate in turn that among the most important roles that institutions of higher education play in our society is to be a forum for the free exchange of ideas, including controversial or unpopular ideas. Indeed, this tradition of academic freedom has its greatest value and impact when debate involves the most challenging ideas, and it is in these circumstances that it is most deserving of our commitment; open dialogue would be easy to defend if the only ideas to be debated were ones on which everyone agreed.
“The relationship between the law enforcement community and Muslim groups and individuals is an important matter that can only benefit from greater public attention and scholarly inquiry. Just as the ability of professors and students to engage this topic in a free and independent environment is critical, so, too, is a willingness to have that work held up to scrutiny. Accordingly, in the spirit of airing a range of views, I would like to invite you to come to NYU Law School to participate in a panel discussion on this topic. Please let me know if that would be of interest to you. All the best, Richard Revesz”
I wrote to Dean Revesz on September 21:
“Congressman King’s detailed analysis appears to thoroughly debunk the ‘Targeted and Entrapped’ report issued with the imprimatur of New York University School of Law. If the Congressman’s analysis is correct, the New York University report would be overwhelmingly in error and those reading it would be left with a serious misunderstanding.
“I therefore believe that the framers of ‘Targeted and Entrapped’ should be provided with a copy of the Congressman’s letter and should be asked by you to reply to the Congressman’s allegations.
“Your proposal that there be a debate between the Congressman and the framers of the report does not, in my opinion, adequately deal with the potential damage that will be done if the report is left unrebutted. The audience that received “Targeted and Entrapped” is surely wider than any audience that would attend a debate. Therefore, publicizing the Congressman’s response and any reply from the International Human Rights Clinic and/or the Center for Human Rights and Global Justice appear to be a better and fairer solution.”
Dean Revesz responded by letter dated September 26, “Thank you for writing me. I want to assure you that both your letter and Congressman King’s about the ‘Targeted and Entrapped’ report have been shared with the report’s authors.
“I appreciate that you and Congressman King have a particular perspective on the civil liberties and law enforcement issues raised by the 9/11 attacks and on the cases cited in the report. Congressman King has made his views on the terrorism threat in the U.S. widely and frequently known in public hearings and the press. The prosecutors who tried these cases are likely to have held press conferences at which they outlined the charges and their reasons for proceeding with their cases; these, too, no doubt received considerable attention.
“The authors have a different perspective; their response was to issue the report, with which you and Congressman King disagree. As one looks at the full extent of the public dialogue on this matter, it would be difficult to claim that the authors have had the more prominent platform from which to air their views. I am also not aware of provisions for opposing views to be offered in those previously mentioned settings. Clearly the report was not the first word on this topic, and certainly it will not be the last. These issues should and will continue to be aired at NYU Law School. It is in that spirit that I extended the invitation to Congressman King to come to the Law School to discuss these matters. In so doing, we are honoring the finest traditions of higher learning: fostering the free exchange of ideas, advancing the civic discourse in a thoughtful manner, and providing an opportunity for serious people to engage one another on a matter of controversy and disagreement. I believe my response to Congressman King was appropriate, and – while it is always a matter of regret to me to know one of my distinguished alumni is disappointed – on this matter you and I may simply have to disagree. Thank you again for writing. Richard Revesz”
It appears to me that the authors of the report have implicitly alleged that 200 Muslim-Americans have been entrapped. They provide no cases where there has been such a finding. Indeed, the three cases that they cite to support such a charge have been addressed in detail in Congressman King’s letter refuting those charges. In all three cases, there were convictions.
If Congressman King’s analysis is correct and the authors of the report have not offered a shred of evidence to the contrary then we have a situation where the School of Law has irresponsibly permitted a seriously flawed document masquerading as legal scholarship to be publicly circulated. The distribution of the report threatens to further antagonize the relationship between the Muslim-American community and their government.
It appears to me if Dean Revesz was appropriately concerned with that relationship, he would feel the necessity of providing every recipient of the report with a copy of Congressman King’s letter. At what point does it become inappropriate for the New York University School of Law to continue libeling the U.S. prosecutors, courts, juries and government itself?