The recent arrests on terrorism-related charges of six young Somali-Americans from Minneapolis and others throughout the United States have prompted renewed questions over the issue of entrapment, and over the degree of real security achieved by disrupting plots that law-enforcement had helped shape.
The six, ages 19 to 21, were charged with conspiracy to aid and support a terrorist organization, and are accused of trying to travel to Syria to join the Islamic State in Iraq and the Levant (ISIL, also called ISIS).
“These were focused men who were intent on joining a terrorist organization,” Minnesota U.S. Attorney Andy Luger said at a news conference.
But the case relies partly on a confidential human source (CHS), who had been a part of the group seeking to join ISIL before he began cooperating with the FBI.
The relationships that law enforcement had with some of the alleged has led to controversy in many cases tackled by the FBI and police departments across the U.S. Defenders argue that it plays a vital role in catching those seeking to carry out acts of violence or join radical groups. Critics, including many civil rights groups, say law-enforcement operatives or civilians working with them often egg on suspects to commit crimes they would not necessarily have otherwise. In its most egregious instances, it can result in the entrapment of otherwise harmless — or mentally ill — individuals.
With the rise of ISIL, there has been a renewed effort to counter potential threats on U.S. soil, including cases in which informants have played key — and some say controversial — roles.
“We have investigations of people in various stages of radicalizing in all 50 states,” FBI Director James Comey said in February. The message of ISIL in particular “resonates with troubled souls, people seeking meaning in some horribly misguided way,” he added. “Those people exist in every state.”
On March 15, 2014, Booker is said to have posted Facebook messages about “going to wage jihad” and “getting ready to be killed in jihad.” On the same day, the FBI was notified about his comments via a citizen’s complaint, and and agents interviewed Booker a few days later.
But according to the Justice Department’s complaint, it appears Booker did not know what materials he needed to make the bomb. A CHS had “provided Booker with a list of supplies that they needed to purchase in order to build the bomb.” Nor did Booker have a map of the Fort Riley area. Instead he was provided with one after asking informants.
The informants also supplied him with what he believed was a bomb. “On or about April 10, 2015 … CHS 2 met Booker and CHS 1 in the van in which CHS 2 had purportedly constructed the VBIED [vehicle-borne improvised explosive device],” the report reads. Booker, who in 2014 voluntarily checked himself into a mental health institution, had to been shown how to arm the device. If convicted, he could face life in prison.
While law enforcement agencies have hailed operations such as those that resulted in Booker’s arrest, others say they create a false sense of security by prosecuting crimes that they have shaped, in ways that also prejudice sentencing, said Steve Downs, an attorney and the executive director of National Coalition to Protect Civil Freedoms. “It’s very cost effective because there is no way out of it, because they have all the elements locked up,” he added.
Claiming entrapment — inducing a person to commit a crime he or she would have been unlikely to commit without such intervention — has not offered a viable legal defense strategy in terrorism-related cases because it requires proving that the accused was not predisposed to commit the crime.
Entrapment has been used in cases involving drug manufacture, corruption and financial crimes.
In those instances, said attorney Kathy Manley, “you had the crimes going on, and you had to get someone into the organization.” But some of the terrorism cases involving informants working against alleged Muslim offenders are different, she said, “because here you don’t have the crimes going on.”
Ali Soufan, a former FBI agent and now the CEO of the Soufan Group intelligence consultancy, disputed that view. Speaking in general terms rather than about any single case, he said, “Judges and juries [do] not buy into the defense of entrapment” because in such operations the accused “are given so many chances to drop out and not to go ahead.”
He stressed the security value of a tactic “to fool these individuals that they have already reached ISIS or Al-Qaeda before they actually reach ISIS or Al-Qaeda.”
Others are less convinced by the security argument and warn that intervention in shaping plots allows law enforcement to drive up the sentences handed down in such cases through, for example, the weapons chosen for the proposed crime.
Sam Braverman, president of the Bronx County Bar Association, represented Laguerre Payen, one of four men convicted in 2010 of plotting to shoot a Stinger missile at military planes in Newburgh, New York, and to blow up synagogues in the Bronx.
Payen, whom Braverman described as one of the “most profoundly incapable” clients he has ever represented, is now serving a 25-year sentence — the mandated minimum for the use of a surface-to-air missile. But the plan to use the Stinger was proposed by an FBI informant. “It’s a perversion of justice” by law enforcement, he argued, because “they’ve come up with the crime.”
In the Booker case, the complaint alleges that he “wanted to build and detonate a truck bomb,” but he also said that had he been able to enlist in the military, he wanted to use “a small gun or a sword” to target “someone with power.” It’s unclear from the complaint what role, if any, the CHS had in Booker’s alleged decision to build a bomb rather than attempt an attack with smaller weapons — which likely would have carried a lesser minimum sentence if Booker is convicted.
Since 2010, Downs and Manley have met with more than 40 families affected by terrorism-related charges and convictions. According to a report they wrote, “Inventing Terrorists,” 94.2 percent of cases on a Department of Justice list of terrorism-related convictions from 2001 and 2010 involved elements of pre-emptive prosecution — which they define as “preventive, predatory, proactive, pretextual or manufactured prosecution” — to target those “whose beliefs, ideology or religious affiliations raise security concerns for the government.”
They say the data support their argument that terrorism charges tend to result in the criminalization of acts that would in other cases not be deemed crimes. And nearly all those convicted were Muslims and members of minority groups, which Downs and Manley said reflected profiling by law enforcement.
Soufan acknowledged the danger of profiling but argued that the issue must be viewed in context: ISIL and Al-Qaeda are “not going to be recruiting atheists,” he said; they recruit Muslims.
Shannon Conley, a 19-year-old from Denver convicted of conspiracy to provide material support to a terrorist organization, was sentenced to four years in prison. Conley, who converted to Islam, wanted to marry a fighter she met online and join ISIL’s ranks.
In her case, however, FBI agents tried for several months to dissuade her from helping ISIL. “They have no difficulty doing that with nice white girls,” Downs said.
Law enforcement used a different approach recently in the case of two women in New York accused of plotting to use an explosive device.
According to court documents, an undercover law-enforcement agent was in contact with the accused — Asia Siddiqui and Noelle Velentzas. Siddiqui is said to have possessed propane tanks and instructions for how to turn them into explosive devices, although there is no evidence offered in the criminal complaint that they planned any attack.
The agent assisted the discussion about how to create a bomb by printing the “Anarchist Cookbook,” a decades-old book that provides instructions for manufacturing a homemade explosive. The agent even bookmarked the relevant page and argued that the book’s recipe for a “fertilizer bomb was the easiest and that detergent and acetone is an easy combination.”
The complaint says that the agent supplied the women with Al-Qaeda propaganda and that the accused discussed potential targets for an attack, although they did not selected one.
And the women’s intent remains unclear. According to the complaint, Velentzas asked the agent why someone would plan an attack on the Herald Square subway station in New York City, prompting the agent to answer, “Because there’s a lot of people.” To which Velentzas replied, “Yeah, but just regular people.”
When the agent told the women that more than 25,000 officers gathered in one place during the funeral of Rafael Ramos, the New York Police Department officer murdered in Brooklyn in December, Velentzas asked if there were any “regular people” at the event. She also is alleged to have said that “she would never want to hurt anyone but, as a Muslim, she must acquire this knowledge and be ready.”
Both women face a maximum sentence of life imprisonment.
Critics also allege that the practice of using sting operations in potential terrorism cases often results in targeting mentally deficient and emotionally vulnerable individuals.
Sami Osmaka, sentenced to 40 years in prison in November on terrorism-related convictions was described by the FBI — according to transcripts obtained by The Intercept — as a “retarded fool” who didn’t have “a pot to piss in” with “wishy-washy” targets and “pipe dream” plots.
That feeds into the warning from Ken Roth, the executive director of Human Rights Watch, in an interview with Al Jazeera last year, that the FBI was alienating the Muslim community “by really unfairly entrapping people who just happen to be dumb schmucks who happen to be entrapped by the FBI to do one of these stupid plots.”
There’s certainly a question of competence in the case of 19-year-old Brooklyn resident and Kazakhstan citizen Akhror Saidakhmetov, charged with terrorism offenses earlier this year. He was, according to then–U.S. Attorney Loretta Lynch in a press release, “prepared to wage violent jihad here in the United States” but was apparently unable to obtain his passport from his mother, who had taken it, fearing he would travel to Syria.
Saidakhmetov asked a paid confidential informant to help him come up with an excuse to get his passport. The informant later, according to an affidavit, helped him fill out a new passport application, and the informant told Saidakhmetov that he forged his signature. According to the court documents, Saidakhmetov twice expressed an interest in shooting police and American military members. However, according to the complaint, Saidakhmetov did not appear to have any weapons.
Regardless, he could now face up to 15 years in prison.