ROBERT SIEGEL, HOST:
In 2011, four men from Newburgh, New York, charged with plotting terrorist acts were convicted in federal court and sentenced to prison.
(SOUNDBITE OF DOCUMENTARY, "THE NEWBURGH STING")
UNIDENTIFIED REPORTER: Investigators say the four Muslim men met in prison and hatched the terrorist plot at a local mosque.
UNIDENTIFIED MAN #1: These guys were homegrown Americans living among us, and this is just one cell of many. The FBI's worried about all sort of things.
UNIDENTIFIED MAN #2: This is truly a textbook example of how a major investigation should be conducted.
SIEGEL: That's from a new HBO documentary that airs Monday called "The Newburgh Sting." It argues that all this was a case of entrapment, that the ringleader, an African-American convert to Islam named James Cromitie was lured into it all by an FBI informant named Shahed Hussein, a Pakistani who dangled promises of money and took him for rides in his luxury car.
(SOUNDBITE OF DOCUMENTARY, "THE NEWBURGH STING")
SHAHED HUSSEIN: Put your seatbelt on.
JAME CROMITIE: You're talking about this? (Laughter).
HUSSEIN: So we have the money here.
SIEGEL: The entrapment argument failed at trial and later on appeal. But using the FBI surveillance film that was collected by the informant, the HBO film insists that this was no case of counterterrorism. It was a manufactured plot. And we should add that despite what the news report said earlier, no one really maintains to this day that the four men were a true terror cell.
Joining us are the filmmakers who made this documentary, Kate Davis and David Heilbroner. Welcome to the program.
KATE DAVIS: Thank you.
DAVID HEILBRONER: Thanks for having us.
SIEGEL: James Cromitie encouraged, inspired, enabled by an FBI informant, recruits three other men, and they proceed in this story with a plot, thinking it's real, to plant what they think are bombs at two synagogues and to attempt to fire what they think is a Stinger missile at a U.S. Air Force plane. Now, I understand the argument that this wouldn't have happened but for the informant, but isn't it equally true that this wouldn't have happened if any of them, especially Cromitie, had said, this is crazy; it's illegal; we're going to be treated as terrorists; I'm out of here.
HEILBRONER: There's no doubt that these four guys are not good citizens. It's also true that they're impoverished men in a destitute, desperate community who were lured and cajoled into committing a crime that they never contemplated doing on their own. But, you know, what makes this entire investigation so unsettling is that the FBI then turns around and says to the media and to Congress that they have indeed busted a Muslim terrorist cell and prevented a terrible attack, whereas in fact, all they really did was find four guys who didn't know each other and talked them into committing a crime.
SIEGEL: The judge who sentenced the men, at sentencing bought the argument that these were not political or religious marketers. But she did call them thugs for hire who were willing to kill and maim and destroy for money. These are quotes. How do you answer the argument that, however they were caught for whatever, we're better off with guys like that behind bars?
DAVIS: Well, I don't think that's entirely accurate that they were ready to kill. Actually, in the film, we have footage of them insisting that they go at night where nobody would be in the synagogues. You know, they were concerned that the planes might not be empty. And so it's also important to understand that these men had no criminal records of doing anything violent. They were dangled in front of them $250,000, which, as one of our FBI experts says, is change-your-life money.
SIEGEL: It's change-your-life money, but the argument that the extreme poverty of Newburgh, New York, and of these guys is an excuse for going for the money, I mean, that would be a defense for a tremendous amount of crime.
HEILBRONER: Absolutely. And, you know, what you need to understand about this case is that the FBI didn't come into the town of Newburgh and find four drug dealers and say, let's do a drug deal. That would make sense. But what the FBI had did is instead send in an agent provocateur who talked these guys into doing a crime of the FBI's own choosing.
SIEGEL: As I've been told, the case law on entrapment at this point says that the government - for you to win a defense of entrapment, you have to show that the government really has induced a crime almost to the point of coercing, not just enticing, a defendant who would otherwise be completely indisposed to commit the crime. I mean, which would you say is the case, that the standard for entrapment that the courts are using is too narrow these days, or that even this case fails to meet the current legal standard for entrapment?
HEILBRONER: Well, I think this was a case of entrapment. And it isn't so much the legal standard as it is the nature of what happens in a courtroom. This case was tried in New York City just a short walk from the site of 9/11. They carry into the courthouse Stinger missiles, which are terrifying to look at. And so, as a jury, you sit there and go, it really looks like entrapment to me, it feels like entrapment, but I can't imagine letting these guys out when you're looking at these dangerous bombs and the nature of the crime seems so awful.
SIEGEL: What would you say to the argument that a case like this has some deterrent effect, and the deterrent effect is if anybody ever shows up at your mosque talking about some crazy scheme, odds are he's a federal informant, and you're going to end up in prison for 25 years; get out of the room?
HEILBRONER: I think that the stronger argument, the message this kind of case really sends, is that there is a stronger link between Islam and acts of domestic terrorism than in fact exists. So I think if you look at what message this case is really sending, it's one of Islamophobia and of fear.
SIEGEL: Although, I did see a study cited in the Huffington Post piece about your film that of a few hundred terror prosecutions that were studied by, I think, Fordham Law School, about 25 percent seem to be stings. And the others actually seem to be actual plots that were hatched. That does suggest that the number's being inflated by informants and sting operations, but not that it's being created from scratch.
HEILBRONER: Well, in the Newburgh case, it was created from scratch.
HEILBRONER: When we started to make this film, I scoured the tapes, the transcripts for what I'd hoped would be the aha moment of, oh, the FBI really was onto something. There really was a basis for a terrorist sting here. I never found it. The argument essentially is, if the FBI comes to your town, and you're willing to go along with whatever they say, you know, you should pay the price. I think that's fine. What's not fine is to have the FBI say to the media the day of the bust where a hundred cops are called in unnecessarily 'cause there's no bomb, there's no weapons...
SIEGEL: 'Cause they're fake bombs, you're saying.
HEILBRONER: Well, it's a fake bomb, so why do you have, you know, a bomb squad? Why do you have an 18 wheeler blocking off the road? This is theater. If the FBI is going to do it, then they should tell the public what happened.
DAVIS: I mean, I think you point is good about there being real cases out there and true dangers lurking. But I think that's all the more reason to question why the government would systematically create cases such as the Newburgh case when there are much more serious people to attend to. And the Tsarnaev brothers were doing their plotting while this theatrical event was taking place.
SIEGEL: Kate Davis and David Heilbroner, thank you very much for talking with us.
DAVIS: Thank you.
HEILBRONER: Thank you very much, Robert.
SIEGEL: The filmmakers reached out to prosecutors and police involved in this case, but none would go on the record. And we asked the FBI for comment on the film. So far, the Bureau has not responded. The documentary "The Newburgh Sting" airs Monday on HBO. Transcript provided by NPR, Copyright NPR.