Police, FBI Split on Terror Suspect

Nov 22, 2011 Issues: Counterterrorism

Wall Street Journal -- by Devlin Barrett and Sean Gardiner

As New York City police tracked what they called a "lone wolf" terrorism suspect for more than a year, federal authorities declined to join the case, believing the man didn't pose a serious threat, people familiar with the matter said.

Jose Pimentel at his arraignment Sunday in New York on terrorism charges.

The Federal Bureau of Investigation was aware of the case against Jose Pimentel, a 27-year-old unemployed Manhattan resident, but agents were concerned about the New York Police Department's use of a confidential informant, who recorded hours of conversations with the suspect but could be a shaky trial witness, said a law-enforcement official familiar with the case. The FBI also had doubts over whether Mr. Pimentel would be capable of carrying out a terror plot on his own, because they believed he had mental problems, another official said.

Federal officials—who sit on a joint terrorism task force with the NYPD—were noticeably absent Sunday night from a news conference announcing Mr. Pimentel's arrest on state charges, but no federal ones.

"There were too many holes in the case,'' said a third law enforcement official, who didn't supply details of what federal agents saw lacking, but added: "If the FBI declines a case, it's not a strong case.''

Police Commissioner Ray Kelly said Monday, "there was no question in my mind we had to take this case down. This was an imminent threat.''

Mr. Pimentel, a Dominican Republican-born U.S. citizen who converted to Islam several years ago, has been charged with terrorism, conspiracy and weapons offenses under New York state laws. He has pleaded not guilty and is being held without bail.

Mr. Pimentel's lawyer, Joseph Zablocki, said in an televised interview that his client wasn't a terrorist, but said Mr. Pimentel made no secret of his feelings about U.S. foreign policy, posting them on his website. Mr. Pimentel's lawyers didn't address specific questions about his personal history Monday.

New York officials said they decided to arrest Mr. Pimentel because he had nearly finished assembling a pipe bomb built from match heads, Christmas lights, and an alarm clock. Law enforcement officials said they had become concerned the bomb components might pose a danger to neighbors in the apartment buildings where Mr. Pimentel and the informant lived. Mr. Pimentel, they said, planned to use the bombs against police officers, returning military veterans, and post offices.

A 27-year-old al Qaeda sympathizer has been arrested and charged over an alleged terrorist plot targeting New York police vehicles, postal facilities and US troops returning home from Iraq and Afghanistan, New York City Mayor Michael Bloomberg announced late Sunday. Video courtesy Fox News.

Rep. Peter King (R., N.Y.), chairman of the House Homeland Security Committee, said Monday "there's been ongoing differences'' between the FBI and NYPD, but said it was up to the leaders of those two agencies to resolve them. "I believe the NYPD has done the right thing,'' Mr. King said.

U.S. Rep. Michael Grimm, a New York Republican and former FBI agent, defended the NYPD's handling of the case.

"Sometimes, the NYPD is just in a better position to handle a case. Historically, I think they are working together much better now than before 9/11,'' he said.

The FBI and NYPD have a long history of working together on major terrorism investigations, but the Pimentel case marks the second time in less than a year the FBI has declined to join a terrorism probe begun by the NYPD.

In the Pimentel case, assessing the suspect's state of mind before he began interacting with the NYPD informant is critical under the law. A suspect can beat federal criminal charges if he can show government agents persuaded or coerced the person to commit a crime they wouldn't otherwise have committed.

But the standard can be difficult to meet: If an undercover agent offers a suspect money to buy or sell drugs, and the suspect promptly accepts, that's not considered entrapment, and the law generally views that person as having been predisposed to the crime.

Mr. Pimentel was secretly recorded and videotaped by the informant discussing the plot and assembling the components for the pipe bombs, according to court papers.

"If you're going to assume even half of what was reported is true, it strikes me that the only viable defense is going to be an entrapment defense,'' said defense lawyer Kerry Lawrence, who represented one of the defendants convicted in a case against four men linked to a mosque in Newburgh, N.Y.

Since the Sept. 11, 2001, terror attacks, federal prosecutors haven't lost a single terrorism case to an entrapment argument by defense lawyers—but they came close earlier this year in the Newburgh case.

In that case, another with a government informant in a central role, federal prosecutors faced criticism from the trial judge, Colleen McMahon. At the the plotters' sentencing, she said "the government made them terrorists.'' Despite the judge's criticism of government tactics, she upheld the convictions, which are being appealed.

Even legal venues usually favorable to prosecutors have pushed back recently against some of the harshest accusations leveled by New York authorities against terror suspects.

In May, the Manhattan district attorney Cy Vance brought charges against two men accused of plotting to detonate bombs in synagogues—another case the FBI declined to join—but the grand jury that heard the evidence declined to hand up the more serious charges sought.