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Saturday, September 10, 2011

Does the federal government prevent terrorist plots or invent them?

N.B. The following post is from Petra Bartosiewicz.

Hello everyone! Dan introduced me as one of your guest September bloggers. I’m happy to be with you. I’m a freelance journalist and have been covering the domestic front of the war on terrorism for the past couple of years, with a particular focus on federal terrorism prosecutions. I’m working on a book on the subject, “The Best Terrorists We Could Find,” to be published by Nation Books. 

In addition to highlighting some of the 9/11 anniversary coverage in the media this month, I’ll be blogging about the investigation and prosecution of terrorism cases in the Article III courts over the past decade. Please feel free to weigh in on any of my posts!

Since 9/11 the U.S. has prosecuted over 1,000 individuals on terrorism-related charges. Mostly these have been fairly low-level cases involving immigration violations, such as lying on a visa application, or denying knowing someone who is on a terrorist watch list. But the government’s highest profile cases – involving groups like the Miami Seven, or the Fort Dix Six, or the Newburgh Four – follow the FBI’s strategy of trying tocatch the terrorists before they next strike. The result of this has been a series of preemptive sting operations, most of them against individuals with no history of terrorism or violence, wherein agents ensnare would-be terrorists by inducing them to participate in make-believe Islamic terrorist conspiracies invented by undercover agents who invent criminal plots, furnish weapons, and deploy paid informants to the federally suggested plot.

These prosecutions against people who seem to act only at the suggestion of the government itself suggests an obvious question:  Is the government preventing terrorism or inventing it?

Defense attorneys in many of these cases have argued their clients have been entrapped. This defense has not yet been successful in a post-9/11 terrorism case. One of the first cases I covered in 2005 involved a claim of entrapment. The defendant, a British businessman named Hemant Lakhani, had been approached by an FBI informant and asked to procure a stinger missile that he was told was intended for a terrorist group. To his discredit, Lakhani, who had once assisted on a legal arms deal involving armored personnel carries, said yes. But despite his best efforts he turned out not to be capable of illegally procuring the weapon. So after a year of trying, the FBI grew impatient, and partnered up with Russian law enforcement agents, who posed as the fictitious sellers of the missiles.


At trial Lakhani’s attorneys argued that with law enforcement on both sides of the deal, as both the fictitious buyers and sellers, Lakhani had been entrapped. The jury disagreed and found Lakhani guilty. He was sentenced to 47 years in prison. (For more on Lakhani’s case, here’s a link to a radio piece I did on the case for the program This American Life). I mention Lakhani here because his case follows a template for high-profile terrorism prosecutions over the past decade. Although Lakhani proved himself to be willing to engage in a criminal scheme, he possessed neither the extremist ideology nor the logistical capabilities of an actual terrorist. So should the government have expended multiple years of resources to bring him down?


My take on these preemptive style cases is summarized in a recent article I wrote for the August 2011 issue of Harper’s Magazine, “To Catch a Terrorist: The FBI’s Hunt for the Enemy Within.” (Full text here) The article tells the story of a terrorism case in Albany, New York involving two Muslim immigrants, men with no prior criminal records and no history of violence. In 2005 the pair became the focus of an FBI informant who engaged them in what later was alleged to be a money laundering scheme designed to hide the proceeds of the illegal sale of a missile destined for a terrorism group. But the missile turned out to be fake and the terror plot a story concocted by the FBI, and it’s not entirely clear the two defendants knew they were engaged in money laundering, let alone terrorism.


Posted by Administrators on September 10, 2011 at 10:05 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink


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The defendant, a British businessman named Hemant Lakhani, had been approached by an FBI informant and asked to procure a stinger missile that he was told was intended for a terrorist group. To his discredit, Lakhani, who had once assisted on a legal arms deal involving armored personnel carries, said yes.

I would think that agreeing to procure a stinger missile intended for a terrorist group does more than merely "discredit" a person.

Posted by: Orin Kerr | Sep 11, 2011 11:06:02 AM

The question at the heart of the post, I think, is, "At what point does the offender's intent to commit a crime become sufficiently internalized to dispel the objection that the government is somehow imposing a mens rea on an unwilling object?"

This seems like a difficult and interesting question, but Mr. Lakhani's inability to procure the weapon "despite his best efforts," or despite lacking the "logistical capablities" of other terrorists, or even despite lacking an "extremist ideology" does not seem relevant to answering it. There are all sorts of reasons that a person might be incapable of procuring an instrumentality of a crime: incompetence, lack of opportunity, luck, laziness, weakness of will, and so on, which have nothing to do with his culpability for this particular act.

But one way to read this post is as a claim that the defendant's incapacity to procure the weapon speaks to his culpability -- indeed, that his culpability is mitigated "despite his best efforts" to obtain the weapon and in light of his comparatively diminished logistical capabilities or his comparatively moderate political views (compared to whom?). That seems wrong to me.

An analogy is the case of punishing crimes of attempt. Some people think that crimes of attempt should be punished less severely than completed crimes. I disagree with that view. But even if I were persuaded by it, the most plausible reason to punish them less severely is not that crimes of attempt manifest less culpability than completed crimes; it's that crimes of attempt result in no harm. A failed attempt is no less culpable because the defendant was incompetent or otherwise unable to follow through "despite his best efforts."

Posted by: Marc DeGirolami | Sep 11, 2011 1:59:09 PM

For sure they are the inventors of terrorists.....

Posted by: AB International | Sep 16, 2011 6:54:39 AM

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