The trial of four Muslim men from Newburgh New York accused of attempting to blow up two New York synagogues and conspiring to shoot down military planes began in federal court in Manhattan on Tuesday. The men were arrested in May 2009 in a car containing what prosecutors allege to be live explosives. Defense lawyers claim the accused were lured into criminal acts by a government agents with promises of cash and other goods and that they would not otherwise have plotted terrorist acts.
There is a mountain of evidence the jury will be asked to consider in the trial of the Newburgh Four, as prosecutors and the defense try to frame that evidence in ways that lead to conviction or acquittal for the men, all of whom have criminal pasts.
In their opening statements, a prosecutor alleged that the leader of the plot spewed hatred and said he wanted to do something to America. A defense attorney indicated that the men were merely the hapless and ineffectual victims of their own poverty and ignorance.
However, there is no dispute about the broad outlines of the case. All four attended the same mosque, and were recruited by a smooth-talking government informant to commit terrorist acts in exchange for travel, money and other goods.
Alicia McWilliams, the aunt of one defendant, admitted that the men were wrong to participate, but also said that they were treated unfairly and should go free.
"Were they right? No," she admitted. "Was the government right? No. The government is not above the law. You cannot use a person getting away from crime to create crimes. And then to go into the community and sow unconstructive seeds. I don't understand that. And as a government we should be ashamed. Is the world going mad?"
In fact, says Columbia University law professor and former prosecutor Daniel Richman, it is common practice for American law enforcement agencies to use undercover operatives to pose as terrorists or criminals in order to gain information from them or infiltrate their networks. And in contrast to many judicial systems abroad, they can do so with few restrictions.
At the same time, says Richman, certain safeguards against prosecutorial excess are built into American law.
"We don't want to have a system in which the government pushes innocent people into criminal activity and then turns around and prosecutes them for it," he said. "Courts will strain hard to preserve the so-called 'entrapment defense' which allows a jury to stand in the way and prevent the conviction of a person who was recruited and pushed into a criminal activity where he wouldn't have been."
According to Richman, the question of whether a suspect was entrapped hinges on two questions: first, whether the government induced or led the person into criminal activity, and second, whether the defendant was predisposed at that moment to commit the crime even without government action. In other words, was he or she ready to commit the crime, but simply lacked the opportunity or the means to do so?
"Where an entrapment defense is raised, the kind of person a defendant was - his ideology, his associations, his statements, his intelligence, his competence, his needs, all sorts of issues will be inquired into and will certainly be pushed by the defense, who will generally be saying 'My guy was just sitting there and the government pushed him into action and he wouldn't have been involved in, and this was a government operation from the get-go and my guy was just caught up in it," Richmond said.
In response, says Richman, the government usually concedes its role as an enabler of the crime itself, but asserts that the suspect is responsible for committing the crime.
"We certainly did with provide you guy with the opportunity to commit a crime, - a grievous conspiracy - 'but what we were doing is providing a controlled environment for him to do what he would otherwise would have done on his own," he said. "And yes, in our case, it was a government operative who sparked this and kept it going. But it could have very easily have been a foreign jihadist who got this going and turned a bunch of hapless mopes into key members of a far flung conspiracy."
Richman adds that in cases such as these jurors are often asked to put themselves in the position of the defendant and to consider what they would do in similar circumstances.
"We expect that when asked to commit a crime, even in loud and ringing terms, particularly when the crime is an especially heinous one, the average citizen will turn away," said Richman. "And the government will consistently remind the jurors to think about themselves, saying ['if] you were presented with these circumstances, what would you do? Would you get swept in the spirit of the moment or the spirit of the group and plan to bomb a synagogue?"
Whether or not, at the end of what promised to be a lengthy trial the jury thinks so is of course of paramount interest to the many prosecutors and defense attorneys in the case.
Government lawyers did not speak to reporters on the first day of the trial, but defense lawyer Sam Braverman did.
"All we ask for is an honest jury," he stated. "We want a jury that cares, that takes it seriously and follows the facts of the law wherever it leads."
The trial of the Newburgh Four is expected to last at least six weeks.