Nearly all of the highest-profile domestic terrorism plots in the US since Sept. 11, 2001, featured the “direct involvement” of government agents or informants, a new report says.
Some of the controversial “sting” operations “were proposed or led by informants,” bordering on entrapment by law enforcement. Yet the courtroom obstacles to proving entrapment are significant, one of the reasons that the stings persist.
The lengthy report, released on Monday by Human Rights Watch, raises questions about the US criminal justice system’s ability to respect civil rights and due process in post-9/11 terrorism cases.
It portrays a system that features not just the sting operations, but secret evidence, anonymous juries, extensive pretrial detentions and convictions significantly removed from actual plots.
“In some cases the FBI may have created terrorists out of law-abiding individuals by suggesting the idea of taking terrorist action or encouraging the target to act,” the report says.
Out of the 494 cases related to terrorism the US has tried since 9/11, the plurality of convictions — 18 percent overall — are not for thwarted plots, but for “material support” charges, a broad category expanded further by the 2001 PATRIOT Act that permits prosecutors to pursue charges with tenuous connections to a terrorist act or group.
In one such incident, the initial basis for a material-support case alleging a man provided “military gear” to al-Qaeda turned out to be waterproof socks in his luggage.
Several cases featured years-long solitary confinement for accused terrorists before their trials. Some defendants displayed signs of mental incapacity. Jurors for the 2007 plot to attack the Fort Dix army base, itself influenced by government informants, were anonymous, limiting defense counsel’s ability to screen out bias.
Human Rights Watch’s findings call into question the post-9/11 shift taken by the FBI and other law enforcement agencies toward stopping terrorist plots before they occur.
While the vast majority of counterterrorism tactics involved are legally authorized, particularly after the US Congress and successive administrations relaxed restrictions on law enforcement and intelligence agencies for counterterrorism, they suggest that the government’s zeal to protect US citizens has in some cases morphed into manufacturing threats.
The report focuses primarily on 27 cases and accordingly stops short of drawing systemic conclusions.
It also finds several trials and convictions for “deliberate attempts at terrorism or terrorism financing” that it does not challenge.
The four high-profile domestic plots it found free of government involvement were last year’s Boston Marathon bombing; Najibullah Zazi’s 2009 plot to bomb the New York subway; the attempted Times Square carbombing of 2010; and the 2002 shooting at Los Angeles International Airport’s El Al counter.
However, the report is a rare attempt at a critical overview of a system often touted by US President Barack Obama’s administration and civil libertarian groups as a rigorous, capable and just alternative to the military tribunals and indefinite detention advocated by conservative critics.
It comes as new pressure mounts on a variety of counterterrorism practices, from the courtroom use of warrantless surveillance to the no-fly list and law enforcement’s “suspicious activity reports” database.