30 Years in Prison For Saying the Wrong Thing? How The FBI Entraps US Citizens To Feign Success Against Terror
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When McKay took his case to trial, arguing that he'd walked into an FBI trap, he was facing up to 30 years in federal prison. As his father remarked in a phone conversation prior to his trial, the case was that of "David against Goliath." An entrapment defense had no precedent of success in the United States. Crowder, in contrast, found himself in a more secure position; he had never conversed with Darby on employing firebombs. The prosecution offered him a two-year plea deal for accepting one charge of possession of unregistered firearms. In the belief that this would exempt him from testifying against McKay, Crowder agreed to these terms.
The two friends nonetheless found themselves pitted against each other as their cases played out. As Better this World critically reveals, when McKay's trial resulted in a hung jury, the prosecution crawled back to Crowder, effectively blackmailing him for information on McKay. Although the latter still had a chance to prove entrapment, when he was offered a plea-deal of four years in prison, he accepted, thus allowing Darby and the FBI to wash their hands of the case. Faced with the decision to accept four years in prison, or risk 30 in proceeding with a second trial, McKay backed down.
As Crowder explained in an interview on June 23, he and McKay were simply "pawns in somebody else's game." A paid FBI informant -- once respected for his involvement with Common Ground Relief, the post-Katrina recovery effort -- directly influenced their progression to more radical activism. More importantly, the machinery of the U.S. judicial system constrained and shaped their decisions following arrest. Broader Implications
Crowder and McKay's experience serves as a crucial reminder of broader and more disquieting government trends, such as the tendency to amplify minor offences as cases of "homegrown" domestic terrorism and employ pre-emptive counterterrorism strategies on U.S. soil. "Going on the offense," as former Attorney General John Ashcroft once dubbed it, has worked to push the boundaries of civil privacy to their limit. Since 9/11, Ashcroft and his successor Michael Mukasey have steadily weakened rights protections and relaxed appropriate checks put in place for FBI investigations. In recent years, the Attorney General Guidelines, first promulgated in 1976 to eradicate the forms of investigative abuse that marked the COINTELPRO program, have markedly eroded. As documented in a study by the Brennan Center for Justice at NYU School of Law, Mukasey's 2008 guidelines continue to permit the FBI to authorize intrusive surveillance techniques, such as the dissemination of untrained informants, without any factual predicates to suspected criminal conduct.
The relaxation of criteria required to engage in investigative activity has been a recurrent feature of the post-9/11 world. Mukasey's Guidelines, for instance, allow the FBI to conduct preliminary "assessments" on the activities of individuals or organizations without any prior allegations indicating criminal activity or threats to national security. In these assessment stages that occur prior to preliminary investigations - which themselves can last up to six months! - FBI agents are also permitted to "assess individuals who may have value as human sources," effectively enabling the premeditated recruitment of informants. Crucially, the Guidelines refrain from imposing "supervisory approval requirements in assessments."
Taking advantage of this dearth of checks and balances, the U.S. Department of Justice has heretofore brought charges against just over 400 individuals in "terrorism- related investigations," since 9/11. As noted by David Cole, a professor of law at Georgetown University, this figure is widely regarded as inflated in that it incorporates a vast number of cases that relate to minor offences, such as immigration fraud, rather than actual terrorism. Entrapment and Surveillance