The Terror Factory (23 page)

For the FBI, missing recordings—whether intentional or the result of a recorder malfunction—come without consequences. The Bureau can justify to the public that intentionally not recording a meeting was due to circumstances that made audio equipment too dangerous—something that can be debated but not wholly proved or disproved. Without a whistleblower, it's impossible to prove that the FBI uses recorder malfunction as an excuse when it's convenient for agents not to record a particular meeting, such as when the target might be backing out of the plot or when an informant's words, if recorded, could be construed at trial as inducement.

The only possible consequence for the FBI comes in court, when defense lawyers put informants on the witness stand, bare to the jury in excruciating detail the informants' past misdeeds, and then ask the jury to question whether certain meetings weren't recorded so they wouldn't hear the lies the informants told to keep their targets engaged in a terrorist plot made possible by federal law enforcement in the first place. Defense lawyers have repeatedly used unrecorded conversations in trying to sell juries on entrapment defenses, arguing that these meetings, if taped, would have contained statements that proved the FBI's informant came up with
the idea for the plot and induced the targets into moving forward with it. But juries so far haven't bought that argument. Since 9/11, approximately fifty terrorism defendants have been involved in plots in which the informant could fairly be described as an agent provocateur, someone who provided not only the plan but also the means and opportunity for the terrorist plot. Ten of these defendants have formally argued entrapment during their trials.
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Yet none of these defendants—and only a minority risk trial in the first place with the government's nearly perfect conviction rate and mandatory minimum sentences of twenty-five years in prison—were successful in convincing a jury that they'd been entrapped, that is, that they wouldn't have committed their crimes were it not for the FBI informant instigating them in the first place.

In talking about FBI terrorism stings among journalists, academics and the public, I am frequently asked why entrapment has never been an effective defense in the terrorism cases. I've struggled with the answer to this question. It's true that entrapment is a very risky legal strategy; after all, it requires the defendants to admit that they committed the crimes they are charged with and then hope that the jury will be sympathetic to their claim that the government induced them. It also requires the defense to disprove predisposition—the contention that the actions of the defendants prior to the introduction of the government informant suggested they would commit such a crime—and here the government has had little trouble in terrorism cases because so much today can be used to suggest predisposition. Watching jihadi videos, for example, as the Fort Dix Five did in New Jersey, or ranting about a hatred of Jews, as James Cromitie did in Newburgh, have both been viewed as evidence of predisposition. Of course, this is something of a simplification of a complicated
legal subject. But with the entrapment defense, there's something unique to terrorism sting cases. Why, after all, has there never been an effective entrapment defense in a terrorism sting case?

David D. Cole has considered that question. A Georgetown University law professor who specializes in constitutional law and national security, Cole has paid close attention to the terrorism sting cases that have gone before juries. In early 2011, I asked him why terrorism defendants are unable to succeed with entrapment defenses when the evidence is clear that the informant provided the means and opportunity for the crime. “I think prosecutors overwhelm juries with evidence in these cases,” Cole told me. “Jurors hear about a horrific plot to bomb the subway or a building, and they think, ‘I ride the subway,' or, ‘My brother works in that building.' Because the plot is so horrific, and people have memories of 9/11, the prosecution is able to overwhelm juries in such a way that prevents them from being sympathetic to an entrapment defense.”

The FBI's success in terrorism trials has further emboldened the Bureau's use of sting operations. As with any organization, the FBI duplicates programs that are effective, and terrorism sting operations have a near-flawless record in court. If the government's terrorism stings were laid out on a time line, you'd see a slow start from 2002 to 2004 and then an explosion in 2005 and 2006. “Agents everywhere said, ‘Hey, this worked in New York. Let's try it over here,'” Peter Ahearn, the former FBI agent, told me when I explained to him how the data showed that the terrorism stings spread nationwide from a modest start in Florida and New York. “That's nothing new in the FBI. You always look at what other agents are doing. What are they doing there that we can do here?”

If the only effective measure is based on court verdicts, then terrorism sting operations have become a proven product for the Bureau. And this product carries another benefit: a terrorism sting gives the FBI, under pressure to show results, something to hold up—a dangerous terrorist caught on tape, convicted at trial, sentenced to decades in prison—as evidence to the public that it is doing its job to safeguard the United States from another attack.

Since the U.S. Congress sets the annual budget of the Federal Bureau of Investigation, the law enforcement priorities of the Bureau are, by necessity, political in nature. In fiscal year 2011–2012, the FBI allocated more than $3 billion of its $7.8 billion budget to counterterrorism. By comparison, the FBI's criminal division, responsible for investigating organized crime and financial fraud, among other areas, received $2.5 billion.
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More than a decade after terrorists flew commercial airplanes into the World Trade Center and the Pentagon, preventing the next attack is still the number one priority for the FBI.

To justify its counterterrorism budget, the Bureau must demonstrate to both the public and elected officials that it is preventing would-be terrorists from taking aim at the homeland, just as in the 1980s and 1990s, the FBI needed to show that it was on top of the Mafia and drug runners. The best way to demonstrate a job well done is by citing investigations that are made public through prosecutions. But what if there haven't been many terrorists in the United States since 9/11? Or, alternatively, what if the FBI has created such a hostile environment for terrorists that none has dared strike since September 11, 2001? One of these could be true, since we haven't
had a significant terrorist attack on U.S. soil since 9/11. The former would undermine the FBI's top priority, however, and the latter would give the FBI nothing to show to Congress to justify the money it receives for counterterrorism—no arrest and conviction numbers, no compelling narratives of deadly plots foiled.

Terrorism sting operations neatly solve this dilemma, and since 9/11, the Bureau has used them to great effect in demonstrating to Congress and the American public that it is “winning” the war on terrorism. In testimony before the Senate Judiciary Committee on January 20, 2010, FBI Director Robert Mueller specifically cited four terrorism sting cases, including the Newburgh case involving the hapless James Cromitie and his band of petty criminals, as evidence of the growing and changing terrorist threat in the United States. “This is merely a sampling of the investigations we have handled over the past year,” Mueller said.
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In fact, an extensive ten-year record exists of the FBI citing terrorism cases that seem very dangerous at first blush and then turn out to be anything but on closer inspection. Shortly after 9/11, for example, the FBI hotly pursued the so-called Lackawanna Six, a group of young Yemeni American friends living near Buffalo, New York, who had attended an Al Qaeda training camp in Afghanistan in the spring of 2001. The FBI at first portrayed the group as a sleeper cell, and in his State of the Union address on January 28, 2003, President George W. Bush mentioned the case, saying that, “We've broken Al Qaeda cells in Hamburg, London, Paris, as well as Buffalo, New York.”
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While it was true that members of the Lackawana Six had attended a training camp near Kandahar and one of the men reportedly met Osama bin Laden there, the only sleeper cell they could have formed would have been one
in deep hibernation. In reality, the six men from Lackawanna, New York, all naturalized U.S. citizens, realized during their time at the camp that they had romanticized Al Qaeda and the terrorist life, and wanted nothing more than to return to the comforts of home. As proof of this, when the FBI was flying one of the Lackawanna Six back to the United States, the man's only question was uniquely American: “How are the Buffalo Bills doing?”
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While the six men were convicted of providing material support to Al Qaeda, they have all since been released from prison, with the U.S. government giving three of them new identities upon their release.
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Described as terrorists by President Bush in 2003, the Lackawanna Six are now living free in the United States. They could be your neighbors.

There are many more examples of the U.S. government's hyping terrorism cases. When the FBI and Justice Department first announced the arrests of the Liberty City Seven on June 23, 2006—a case that ultimately took three trials to win convictions against five of the seven men who, evidence showed, had no capacity to commit a crime were it not for an aggressive informant with a history of lying to government agents—the FBI held up the case as an example of how it was preventing the next deadly attack. “Today's indictment is an important step forward in the war on terrorism here in the United States,” John Pistole, the FBI's deputy director at the time, declared proudly during a press conference in Washington, D.C., adding:

However, it became obvious that the government was exaggerating the strength and credibility of the Liberty City Seven when, during the same press conference, then-U.S. Attorney General Alberto Gonzales told reporters: “These individuals wish to wage a, quote, ‘full ground war' against the United States.” Later, a reporter asked Gonzales if the group allegedly planning a ground war had any actual contacts with Al Qaeda. “The answer to that is no,” he responded. The federal government was putting before cameras the equivalent of a perp walk—a made-for-TV show that wasn't hard to spot. At least it wasn't for comedian Jon Stewart, who pilloried the announcement on
The Daily Show
three days after the press conference. “Seven guys?” he said on June 26, 2006. “I am not a general. I am not in any way affiliated with a military academy, but I believe if you are going to wage a full ground war against the United States, you will need to field at least as many people as, say, a softball team.”
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The government's playing up of terrorism cases, which even years ago had become the butt of late-night jokes from TV comedians, should be worn out today. But it isn't. Four years after the Liberty City Seven announcement, with a new president in the White House, the government put on the same show in announcing the arrest of Mohamed Osman Mohamud in Portland, Oregon. At first glance, the plot appeared to be dangerous and deadly, the government swooping in to stop a crazed terrorist from killing thousands during a Christmas tree lighting ceremony. As we have seen, Mohamud
was an underachieving, penniless young man whose alleged act of terrorism was only made possible by the FBI.

Despite this, Mohamud's case has become a rallying point for the FBI. High-ranking agents I have interviewed consistently used the case as their prime example in defending terrorism sting operations. “Look at what the kid in Portland wanted to do,” J. Stephen Tidwell, the retired executive assistant director of the FBI, told me a couple of months after Mohamud's arrest. Even as U.S. Muslim civil and religious rights groups including the Council on American-Islamic Relations and Muslim Advocates asked the government to reconsider the use of sting operations in the wake of the Mohamud case, the government remained steadfast in defense of its aggressive tactics. “Mr. Mohamud's arrest was the result of a successful undercover operation—a critical and frequently used law enforcement tool that has helped identify and defuse public safety threats such as those posed by potential terrorists, drug dealers, and child pornographers for decades,” Attorney General Eric Holder said during a December 10, 2010, speech, less than two weeks after Mohamud's arrest.
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The Mohamud case was among the last in a run of terrorism stings that occurred in 2010. During a November 29, 2010, press conference, a reporter asked Attorney General Holder about these cases. “Some critics say that this is another case of entrapment by the FBI in these matters,” the reporter began. “And I'm just wondering if you can address that and also discuss why these sting operations are so important at this time. This is, I think, about the fifth or sixth case—sting in the last year.” Holder held firm to the government's line that sting cases do not result in entrapment and instead provide an effective means for identifying terrorists before they strike. “This is an investigation I have been familiar with throughout
the course—throughout its course. And I am confident there is no entrapment here and no entrapment claim will prove to be successful,” Holder said. The attorney general then continued: