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."
"Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions" also "documented the following patterns that raise serious human rights concerns":
• "Discriminatory investigations, often targeting particularly vulnerable individuals (including people with intellectual and mental disabilities and the indigent), in which the government — often acting through informants — is actively involved in developing the plot, persuading and sometimes pressuring the target to participate, and providing the resources to carry it out.
• "Use of overly broad material support charges, punishing behavior that did not demonstrate intent to support terrorism.
• "Prosecutorial tactics that may violate fair trial rights, such as introducing prejudicial evidence — including evidence obtained by coercion, classified evidence that cannot be fairly contested, and inflammatory evidence about terrorism in which defendants played no part; and limited ability to challenge surveillance warrants due to excessive government secrecy.
• "Harsh and at times abusive conditions of confinement, which often appear excessive in relation to the security risk posed. These include:
• "Prolonged solitary confinement and severe restrictions on communicating in pretrial detention, possibly impeding defendants' ability to assist in their own defense and contributing to their pleading guilty.
• "Excessive lengthening of sentences and draconian conditions post- conviction, including prolonged solitary confinement and severe restrictions on contact with families or others, sometimes without explanation or recourse."
Last year, I reviewed Trevor Aaronson's excellent book The Terror Factory: Inside the FBI's Manufactured War on Terrorism (Ig Publishing, 2013) and wrote: "Aaronson found that FBI informants and undercover agents were at the center of many of the cases touted by the FBI as successes in thwarting terrorist plots. In fact, were it not for the FBI, most of those plots would likely have fallen apart under the weight of their own senselessness and ineptitude."
".... After his extensive and exhausting investigation, Aaronson found that 'the FBI has built the largest network of spies ever to exist in the United States – with ten times as many informants on the streets today [as] ... during the infamous Cointelpro operations under FBI director J. Edgar Hoover – with the majority of these spies focused on ferreting out terrorism in Muslim communities.'"
The Terror Factory, which will be released in paperback on September 9, served as a springboard for the Human Rights Watch report, and at least two other independent projects: Al Jazeera's July 20 documentary that "tells the story of three FBI informants who posed as Muslims and infiltrated U.S. Muslim communities"; and HBO's recently released documentary Newburgh Sting, "which looks at the case of the so-called Newburgh 4 and prolific FBI informant Shahed Hussain, who is the subject of 'The Superinformant' chapter in The Terror Factory."
Finally, there's a good chance we all might say "Amen" to a critical clause in the Fifth Amendment to the Constitution: "No person shall be... deprived of life, liberty, or property, without due process of law." Far too often, under the guise of combatting terrorism and preventing another 9/11, the government has gone way beyond the boundaries of responsible law enforcement practices. Using surveillance, coercion, entrapment, and intimidation has not only resulted in the government receiving less cooperation from very communities it seeks to enlist help, but it is more likely to create terrorists where terrorists do not exist.