How the FBI Is Creating Terrorists
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In the case of the "Newburgh Four," for example, a judge said the government "came up with the crime, provided the means, and removed all relevant obstacles," and had, in the process, made a terrorist out of a man "whose buffoonery is positively Shakespearean in scope."'
— from the Summary, " Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions"
Let's start with a premise I think we can all agree with: There have been no 9/11-type attacks on United States soil since, well, 9/11. Here's another statement we all probably agree with: The federal government has all sorts of arrows in its quiver when it comes to gathering intelligence to thwart such attacks. And that is where it begins to gets dicey: Unfortunately, in its counterterrorism project, the government appears to be relying more and more on perhaps the most twisted of those arrows; the use of informants, coerced and/or rewarded, entrapment, and the sting.
Since the September 2001 terrorist attacks on the Twin Towers and the Pentagon, the federal government has obtained more than 500 federal counterterrorism convictions. According to a new Human Rights Watch report (produced in association with Columbia Law School's Human Rights Institute), "nearly 50 percent of [those] ... convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot."
The report, " Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions," points out that, while "[m]any prosecutions have properly targeted individuals engaged in planning or financing terror attacks... many others have targeted individuals who do not appear to have been involved in terrorist plotting or financing at the time the government began to investigate them.
"Indeed, in some cases the Federal Bureau of Investigation may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target's willingness to act."
In addition, there is a good chance that, without the government's active participation, many of those ensnared by the government did not have the mental or intellectual capacity to plan, finance and/or carry out a terrorist event.
"Americans have been told that their government is keeping them safe by preventing and prosecuting terrorism inside the US," said Andrew Prasow, Human Rights Watch's deputy Washington director, in a statement. "But take a closer look and you realize that many of these people would never have committed a crime if not for law enforcement encouraging, pressuring, and sometimes paying them to commit terrorist acts."
According to the report, entrapment, or what smells like entrapment, is writ large over several of the cases. However, the report points out that proving entrapment is not an easy task for defendants: "In theory, the defendants in these cases should be able to avoid criminal liability by making a claim of 'entrapment.' However, US law requires that to prove entrapment a defendant show both that the government induced him to commit the act in question and that he was not 'predisposed' to commit it. This predisposition inquiry focuses attention on the defendant's background, opinions, beliefs, and reputation — in other words, not on the crime, but on the nature of the defendant. This character inquiry makes it exceptionally difficult for a defendant to succeed in raising the entrapment defense, particularly in the terrorism context, where inflammatory stereotypes and highly charged characterizations of Islam and foreigners often prevail. Indeed, no claim of entrapment has been successful in a US federal terrorism case to date. European human rights law—instructive for interpreting internationally recognized fair trial rights — suggests that the current formulation of the US defense of entrapment may not comport with fair trial standards."