In the spring of 2015, two Queens women were arrested for an alleged ISIS terror plot to build a homemade bomb. According to the government, the attack was thwarted by an undercover detective who called herself Mel. In preliminary hearings, the defense has argued that Mel actually induced the women to engage in behavior they never would have otherwise. According to a recent court ruling, if the case goes to trial, not only will the jury and the public get to hear Mel’s side of the story, they may also hear from Muslim women she has spied on in the past. It’s also a case that may allow the public the unusual opportunity to scrutinize how undercover operatives conduct terrorism investigations, and if their tactics adhere to the letter and the spirit of the law.
In late March, Judge Sterling Johnson Jr. of the U.S. District Court in the Eastern District of New York ruled against the government’s request to have the NYPD detective, who went by the name Melike Ser, testify in closed court. He granted the defense permission to use publicly available photographs of Mel to investigate her past conduct as an undercover detective while precluding any further investigation into Mel’s real life, unless the defense can demonstrate those details are relevant to their defense argument: that Mel entrapped the defendants.
“This Court cannot unscramble a scrambled egg,” wrote Sterling in his March ruling. “The Court cannot pretend that this information is not already in the public domain.” Attorneys for the defendants — Asia Siddiqui and Noelle Velentzas, both American citizens — hope they may be able to gather proof that their clients were entrapped.
The case has drawn a fair amount of public attention, in part because it’s one of the first in which Muslim women are alleged to have brainstormed a terrorist plot. But the case is also unusual because of the role that journalists have played in opening the door for Mel to be investigated and called into open court. In October 2015, I published an investigation in Gothamist showing that Mel had previously infiltrated a group of young Muslim women studying at Brooklyn College. Some of the women who knew Mel cast her behavior as predatory — she gained their trust by “converting” to Islam on campus and was welcomed into their social circle, visited their homes, and even served as a bridesmaid in one woman’s wedding.
— NY News Now (@nynewsn) April 3, 2015
In a significant percentage of the terrorism convictions secured over the past fifteen years, informants and undercover officers have played a central role in developing the alleged plot — coming up with the plan, convincing the defendant to participate, even sometimes providing the fake bombs eventually planted at the site of “attack.” Yet in part because of how these trials are conducted — and how judges rule on some of the same procedural issues being deliberated in this case — no such defendant has ever been able to successfully argue that he was entrapped. It appears that lawyers for Velentzas and Siddiqui, armed with background information on Mel gleaned from news sources and the public domain, may try to be the first.
Velentzas and Siddiqui — who were 28 and 31, respectively, at the time — were arrested in April 2015 and charged with conspiracy to use a weapon of mass destruction. “Since at least August 2014, the defendants have allegedly plotted to construct an explosive device for use in a terrorist attack on American soil,” stated the Justice Department press release. Four propane gas tanks, alongside instructions with how to turn them into explosive devices, were found in Siddiqui’s home. The criminal complaint also alleges that the two women had extensive conversations with Mel about their violent ambitions.
Although little is known about the exact nature of Mel’s involvement, court documents suggest she may have played a key role. According to the criminal complaint, at one point Mel printed out a copy of The Anarchist Cookbook for the two women and bookmarked the section that outlined how to build fertilizer bombs. Neither Velentzas nor Siddiqui is alleged to have devised plans for a specific attack.
In this case, as in most terrorism prosecutions, the government has fought to keep as many details as possible about the undercover detective or informant far from public view. A few months after the women’s arrest, government lawyers in the Velentzas and Siddiqui case requested and secured a protective order, which prohibited the defense from disclosing any information about Mel procured through discovery. In January, Charles Swift, Siddiqui’s attorney, told the court that his team had figured out Mel’s real identity — including her name and alma mater — by utilizing information in the public domain, including news sources and photographs posted online. That information should not be subject to the protective order, argued Swift.
As I reported in Gothamist, while at Brooklyn College Mel asked some of the Islamic Society members about jihad and suicide bombings. Some young women started to suspect that Mel was an informant, and that she was digging to learn more about their political beliefs or even pressing them to make incriminating statements. According to Wadie Said, professor of law at the University of South Carolina and the author of the 2015 book Crimes of Terror, that’s the kind of information defense attorneys might use to cross-examine Mel during trial. By investigating her past conduct as an undercover detective, the defense might attempt to establish that she uses “tactics that are provocative and invasive, in a way that a jury would think, ‘This is someone we shouldn’t trust,’ ” Said said.
Tarek Ismail is an attorney with the Creating Law Enforcement Accountability & Responsibility (CLEAR) project at the CUNY School of Law, which provides legal advice to community members affected by national security policy. He said that in order to successfully win an entrapment defense, attorneys need to prove two elements. “The shorter hurdle is to show there was inducement,” explained Ismail — for example, that the government agent promised the defendant money or spiritual rewards if he or she participated in the plot. In one of the most controversial of terrorism prosecutions, that of the Newburgh Four, the informant promised defendants hundreds of thousands of dollars, and even told one of the men that he would be given just enough cash to pay for his brother’s liver transplant.
“The predisposition hurdle is the one people have trouble with in the entrapment defense,” Ismail added. In other kinds of criminal cases where an entrapment defense might be utilized — for example, if an undercover detective was used in a drug bust — prosecutors usually cite past convictions to prove that the defendant was inclined to commit the crime. What the government uses in terrorism prosecutions to establish predisposition is speech, political comments presumed to signify the defendant’s attitudes toward potential terrorist activity.
Hypothetically, in the Velentzas and Siddiqui case, one way to demonstrate that the defendants weren’t predisposed to commit the crime would be to show that Mel had attempted to solicit incriminating speech in the past. Testimony that Mel had made a concerted effort to shift people’s minds or take political conversations in a direction they might not have gone otherwise, for example, might be valuable for the defense.
Defense attorneys are often given almost zero information about the informants or undercover detectives who cinched their client’s arrest. Lori Cohen is a defense attorney who represented Jose Pimintel, a man with a history of mental illness who pled guilty to state-level terrorism charges in 2011. “You don’t get any information about who the informant is until you’re at trial,” she told the Voice.
Queens house where Noelle Velentzas and Asia Siddiqui plotted to bomb NY. pic.twitter.com/4Sx2nDIOJ8
— Michael Shain (@nykname) April 3, 2015
Even if the defense is able to present evidence that damages Mel’s credibility, it could make little difference in the outcome of the case. According to Cohen, overcoming the hurdle of predisposition is all but impossible, since the reason people are usually being investigated in the first place is because they engaged in some behavior or speech conduct that was deemed suspicious. Still, that doesn’t necessarily mean the prosecution is in the interest of the public good, she said. In the case of her own client, Pimintel, “I firmly believe that our client never would have engaged in any behavior absent the informant.”
There’s also the problem that juries are generally not inclined to give Arab and Muslim defendants charged with terrorism the benefit of the doubt, said Wadie Said. “Once you charge someone with a certain name, with a certain background, with terrorism — it doesn’t really matter what the informant has been up to,” he said. “Juries haven’t been inclined to take what they see as a barrier to conviction.”
In the case of the Newburgh Four, even the judge stated plainly that the crime was a product of government intrusion. “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,” said Judge Colleen McMahon. Nonetheless, she said, “that does not mean there was no crime.”
In denying the government’s request to have Mel testify in closed court, Judge Sterling proposed a novel alternative: that Mel testify in a niqab, or face veil, since it would obscure her face from the public view without requiring the court to be emptied out. Asked if that proposal would be suitable, Charles Swift told the judge, “[She] has already been pretending anyway.”
The women who were spied on by Mel at Brooklyn College were less enthusiastic about the idea.
“It really feels like salt on an open wound — after terrorizing our community for four years masquerading as a Muslim, she is then allowed to wear a religious/cultural article of clothing to hide from public view, while the very women she spied on were targeted for their choice to cover,” said one Brooklyn College graduate who knew Mel. The undercover detective was never known to wear a hijab or a niqab during her time at Brooklyn College.
In post–9/11 terrorism cases, prosecutors have successfully argued for court closures, anonymous witnesses, even the use of anonymous juries — all court practices that are potentially prejudicial against the defense and inhibit the defendant’s right to confront their accuser. In the 2008 Holy Land Case, five American Palestinian charity fundraisers were convicted of allegedly funneling money for Hamas. During trial, a lawyer for the Israeli security services was permitted to provide anonymous expert testimony — an event without precedent in American legal history, according to defense attorneys and an article published in the Loyola Journal of Public Interest Law.
“Maybe the hopeful outcome of a prosecution like this is that outside the most wildly compelling circumstances, where the government has very strong and tangible evidence that someone is an actual violent threat, tactics like this are not going to be approved,” Wadie Said told the Voice.
“If the embarrassing nature of what Mel has been up to comes out via her testimony in open court, perhaps that would engender a backlash to the point where the public at large would find such tactics unacceptable in a free and democratic society. That would be the hope.”
Valentzas and Siddiqui’s case will return to court in February 2018.