The Fort Dix Conspiracy

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A cultural revolution
Since 9/11, the FBI and prosecutors say, they are more interested in gathering intelligence than in compiling the perfect prosecution. That attitude goes against their culture, which has always rewarded agents and lawyers for locking people up. "We have to run everything down. Everything is pursued, either preliminarily or we actually will open an investigation and throw a source in the middle of it," says Cummings, the FBI official. If the investigation comes up empty, it is closed, he says. "I don't have time to spend on garbage."

Sometimes, though, it seems as if the government is trying to do everything: gather intelligence, pre-empt a terrorist attack and send people to prison, even if the evidence is thin. Investigations seem to grow into case files, which lead to press conferences. "From the perspective of the investigators," says Jenkins, the Rand expert, "the more you invest in an investigation, you create your own momentum. You become convinced you've got a case."

Pre-emptive prosecutions come with secondary risks. When they work, they may be more likely to put innocent people in jail — because they are built not around what men do but around what's in their hearts. When they don't work, when the jury won't buy the legitimate claims of a dodgy informant, dangerous people can go free. In San Francisco, the DEA lost a felony drug-trafficking case in October after the informant admitted to smoking crack during the investigation and then, on the witness stand, fell asleep — seven times.

The gravest consequence may be the long-term one: if the rumors of entrapment become so corrosive that no one in the Muslim-American community feels safe talking to the FBI, then the government has lost its best potential ally. While reporting this story, I met with a couple who had helped found the Sunni mosque attended by the Duka brothers. The couple had immigrated from India decades ago. We sat in their upscale suburban home and talked about the Dukas, whom they didn't know very well, and their fears. They were convinced that their phones were being tapped. They had stopped watching mainstream TV news and were even thinking of leaving the country. "This is a country which was great," the woman said. "That's why we all came — freedom of speech, justice, things that were not even to be found in Muslim countries. But it is vanishing every day."

In September, Mohamed Shnewer's 12-year-old sister was punched in the face and choked by a boy at her Cherry Hill middle school who called her a terrorist, her family says. Local police are investigating, and the girl has gone to Jordan with her mother. The family's store, along with the Tatars' pizzeria, has closed down because of lack of business, and the Shnewers have put their house up for sale. The Duka brothers' father was detained on immigration charges the day his sons were arrested; now he faces deportation.

In fact, the government could have just deported the Duka brothers at the beginning, dramatically reducing the expense and complications of the case. Since none of the men were known to have ties to any international terrorist organizations, they might have been a relatively low threat once deposited thousands of miles away. The NYPD is trying to pursue that alternative solution more often. (The NYPD intelligence unit also promotes officers for work that doesn't necessarily lead to arrests.)

But the pursuit of a traditional prosecution remains a powerful force at the Justice Department. It is hard to reward agents for walking away from cases. For now, terrorism expert Jenkins is comforted by one fact. "You do have an ultimate auditor against abuse or error, which is a judge and jury. It is up to them to look into the eyes of the informant and the defendants and decide who is telling the truth." Early next year, the Fort Dix defendants will have their chance. It will be as much a trial of their intent as it is of the government's new model — and of the informant Omar, who is expected to testify in depth.