Two years ago, Najibullah Zazi left his Aurora apartment for New York with plans to blow up part of the city’s subway system. Thanks to old-fashioned detective work, 21st-century counterterrorism techniques—and a bit of luck—federal, Colorado, and Denver officials were able to disrupt one of Al Qaeda’s most terrifying plots since 9/11.
The investigation was leading every news cycle. John Scata received a phone call from his wife telling him the Denver FBI was on Fox News. Folsom got a confused phone call from a friend in New York City: “Why are you on the Jumbotron in Times Square?” Although Folsom was getting publicly flogged for letting his client speak with the FBI, in at least one way, the lawyer was savvier than he appeared. The media didn’t know yet that an immunity deal had been negotiated, and Folsom purposely avoided discussing it. “The bureau made it clear they’d prefer that word of the immunity deal not be released,” Folsom says. “I didn’t lie to anyone, but I said things that I knew could be construed incorrectly.”
Folsom wasn’t a natural fit for this case. Then 37, he had almost no experience with the FBI and zero national security background. Raised in Pennsylvania, he’d gotten into law intending to do environmental work. He moved to Colorado to attend the University of Denver Law School, where he’d been one of the editors of the Water Law Review. As the Zazi story emerged, Folsom faced withering criticism. Denver Post columnist Mike Littwin wrote, “There are many things we have yet to learn in the case of Najibullah Zazi. But one thing is clear: [Arthur] Folsom—attorney to the shuttle-bus-driving alleged terrorist—can’t possibly be qualified to defend him.” His colleagues also questioned Folsom’s qualifications. “He had no business going in there,” says another lawyer who worked on the Zazi case. “Anyone who watched Law & Order knows you don’t do that. I watched that train wreck and hoped Art wouldn’t hurt himself too much.”
The bureau, of course, welcomed such a weak adversary. “He’s the MVP of this case,” says one federal official with a laugh, “no question.”
Friday, September 18, 2009
The first thing Folsom noticed on the third day of negotiations was that a new piece of art had appeared on the wall of the FBI conference room. Unless the bureau had a pressing need to redecorate overnight, Folsom now knew they were “secretly” videotaping the conversation through the new wooden nautical-themed clock. They were actually doing much more than that: The room behind the clock was crowded with attorneys, analysts, and officials from a variety of federal agencies looking in.
The number of observers involved in the case meant that the steady stream of news leaks had become a torrent. Folsom and Zazi began the session angrily. “Why should I talk to you when I know it’ll be on the 5-o’clock news?” Zazi said. During a midmorning break, Folsom got an email from a reporter asking about information Zazi had just provided to the FBI that day. He pulled aside two prosecutors and showed them the message. “We've got a real problem—this is what we’re talking about this morning.” The prosecutors apologized for the leaks. Folsom nearly shouted: “The Titanic had a leak—this is everywhere. My guy’s going to get killed tonight.” Threats and ugly voicemails had already begun to arrive at Folsom’s law office. After one warning, local police arrived to guard Folsom’s building.
The FBI also had uncovered another negotiating tool: Zazi’s family had immigration problems. One of Zazi’s “brothers” was actually a cousin. Zazi’s parents had claimed him as a son on their immigration forms. Even though the interrogators told Zazi that they could deport his mother and cousin, Zazi refused to provide information about his co-conspirators, the two high school friends he’d traveled with to Pakistan, saying his religion didn’t allow for him to indict others. He also continued dissembling, at one point claiming that he intended to detonate a suicide bomb at a local Wal-Mart “to make a statement to the media.” In the room next door, the hidden audience raptly pressed together as Zazi remained evasive.
His stonewalling caused the talks to falter, and once again the FBI drove Zazi and Folsom home, fully expecting the two men to return the next day. The FBI’s offer, the interrogators reminded Folsom and Zazi as they left, hinged upon full disclosure: “This is an all-or-nothing deal.”
Saturday, September 19, 2009
When Folsom and Zazi talked that morning by phone, Zazi told his lawyer he wouldn’t violate his religious beliefs and inform on his friends. “I’d rather spend life in prison than eternity in hell,” he said. Resigned to his client’s impending arrest, Folsom advised Zazi to gather his family and spend his last remaining hours of freedom with them. Make sure to touch them and hug them, Folsom said, because you may never be allowed physical contact with family members again. He left Zazi with one last thought: “When the knock on the door comes—don’t resist.”
Folsom called the government: There would be no more talks. Davis’ team obtained a warrant, and the arresting officers gathered that afternoon at a nearby high school parking lot. Davis had finally decided to embrace the media circus; they were going into Zazi’s apartment complex, fast and loud. “When you get him in the Suburban,” Davis told his agents, “make sure the windows are down. I want everyone to see that we have him.”
As Davis drove toward Zazi’s apartment a Denver reporter called. “I hear you’re on your way to arrest Zazi.” Even more disturbing, the New York Post called Zazi’s home phone and warned him that the bureau was coming—the media was giving a suspected suicide bomber a heads-up.
The convoy of black SUVs, lights spinning, pulled into Zazi’s parking lot, greeted by TV lights and flashbulbs. In their blue raid jackets, agents piled out. Minutes later Jergenson led a handcuffed Zazi down the steps. Simultaneously, the FBI arrested Mohammed Wali Zazi and Ahmad Wais Afzali, the Queens imam who had tipped off the Zazis that the FBI was asking about them. “The arrests carried out tonight are part of an ongoing and fast-paced investigation,” the assistant attorney general for national security, David Kris, told the media. “It is important to note that we have no specific information regarding the timing, location, or target of any planned attack.”