September 1, 2011

Manufacturing Terrorism: The Danger of Using Informants as Agents Provocateurs

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Since Sept. 11, counterterrorism has surpassed organized crime as the FBI’s top priority, consuming $3.3 billion of its approximately $8 billion budget. A great deal of that money is spent on maintaining informants — many of whom are placed within the American Muslim community.  The FBI currently has more than 15,000 informants, approximately three times as many as it had in the 1980’s. Many of the informants are used conventionally — i.e. to observe wrongdoing and draw the FBI’s attention to it. However, the FBI has been increasingly using informants as “agents provocateurs,” that is, the informants provide the means and opportunity for individuals to commit acts of terrorism, often going to great lengths to convince suspects to engage in terrorist acts.Why would someone want to become an informant? FBI informants in terrorism cases are usually either criminals trying to avoid jail time or immigrants facing deportation. They are motivated by money and a sense of self-preservation to achieve results. For successfully convincing a suspect to support or engage in a terrorist plot, informants receive as much as $230,000 and may avoid deportation or see their own criminal records cleared. This creates some incredibly perverse incentives — the conviction of defendants strongly weighs in the informants’ favor. A recent study conducted by the University of California-Berkeley found that approximately 10 percent of cases involving terrorism charges were stings conducted by agents provocateurs. Of course there’s the argument that these defendants would have radicalized anyway if the FBI hadn’t come along, but there’s nothing to support such a claim. Additionally, the evidence against defendants in sting operations is often very scant, and one former FBI agent has publicly stated that the FBI avoids obtaining video or audio surveillance of the stings because doing so would be inconvenient once the matter came to trial. Convictions are more likely when the FBI can rely solely on the informant’s testimony as evidence. Here’s one example of how thin evidence can be in obtaining a conviction.In 2005, Tarik Shah, a professional jazz bass guitar player (he played Bill Clinton’s inauguration) who also owned a martial arts studio was arrested by the FBI. The evidence presented against him was a willingness to train Muslims in martial arts — which was in fact his livelihood — and a fake oath to Al Qaeda that was administered and prompted by an FBI informant. Based on that scant evidence, Shah was sentenced to 15 years in prison for conspiring to provide material support to terrorists. Most notable here is the lack of any allegation of a willingness to commit any violence against anyone. At the very most, Shah was sympathetic to Al Qaeda as an organization, but that is no crime.  Proponents of current FBI policy have propped up the entrapment defense as a safeguard against alleged abuses in cases like Shah’s, but a successful entrapment defense turns on the defendant’s ability to prove that he was not predisposed to commit the crime. Most entrapment defenses fail because lack of predisposition is extremely difficult to prove. Something as simple as a prayer or oath has been found sufficient to demonstrate willingness. Clearly, defendants require additional protection.In cases like Tarik Shah’s, the FBI seems to be penalizing people for their mere capacity for radicalization. Penalizing individuals for giving into the FBI’s persuasive attempts to convince them to commit terrorist attacks is akin to sending an informant in to spend months convincing at-risk youth to try heroin and arresting the youths who eventually purchase the drug. The U.S. should be focusing its efforts on those who would try to recruit, not those who would be recruited.By seeking to convince individuals to support or commit terrorism, FBI policy effectively pays informants to manufacture terrorists. In doing so, the FBI has been able to mislead Americans into thinking that it has developed a systematic way to prevent future terrorist attacks. Yes, the FBI can hang its hat on the fact that no major attack has occurred on U.S. soil under its watch since Sept. 11, but most of the recent domestic terrorism scares were really just FBI sting operations. See, for example, the attempted bombing of the Herald Square subway station in 2004. That is a false victory. And are these small-time, marginalized individuals really the people on whom the FBI should be focusing? What about those who need no provocation? What about those who are not active in their local Muslim communities? What about those who aren’t Muslim? If the recent attacks in the Norway have taught the world anything, it’s that people of all faiths and ethnicities are capable of terrorism. The price tag of using agents provocateurs is high and the potential for abuse higher. The practice must be stopped. Chuck Guzak is a third-year law student at Cornell. He may be reached at cmg258@cornell.edu. Barely Legal appears alternate Fridays this semester.

Original Author: Chuck Guzak