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Terrorism & Security
posted July 13, 2006 at 12:45 p.m.

Is using informants in terror cases entrapment?

Recent cases raise legal debate over 'preemptive' law enforcement vs. 'thought police.'


A well-know member of Toronto's Muslim community, whose name cannot be revealed under Canadian law, infiltrated an alleged terrorist cell that investigators say was planning to attack sites in Canada.

The Toronto Star reports that sources say the man first worked for Canadian Security and Intelligence Service (CSIS), and "then became a paid RCMP [Royal Canadian Mounted Police] agent once a criminal investigation was launched." The Star says involvement by paid informers in such cases will likely raise legal questions.

What is the credibility of the agents? Why did they agree to work for police? How involved were they in the alleged planning of the attacks?

"It's going to depend on the disclosure and what role the operative played," says Paul Copeland, an experienced Toronto criminal lawyer and police watchdog, who is representing one of the 17 accused. "The issue that could arise is the potential of entrapment. It's not appropriate for police to encourage a crime and then arrest those suspected of committing that crime."

The Star points out that Australia's first terrorist trial ended in acquittal for the accused last year when evidence showed that an undercover police informant had offered the accused $3000 to make a 'terrorist' video. The jury found that Zeky Mallah was not a terrorist, but a "troubled orphan full of bravado."

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The South Florida Sun-Sentinel reports that more recently in the US, questions have arisen over the role played by an FBI informant. Defense attorneys have said they will show that the informant had concocted part of the plot that the seven Miami-area men are accused of planning.

"It was the FBI that provided the boots, the cameras, the van and the warehouse for these individuals," said Roderick Vereen, who represents [Stanley Grant Phanor]. [Naudimar Herrera]'s attorney Richard Houlihan said [defendant Narseal Batiste] might have invented the alleged conspiracy to scam Al Qaeda out of money. "It is a very, extremely weak case," Houlihan said.

But New York Magazine reported in December 2004 that an undercover officer and a paid Muslim informant played key roles in the arrests of two men who wanted to blow up the Herald Square subway station in New York. One of the men in the case, Shahawar Matin Siraj, was convicted in May and now awaits sentencing.

The Associated Press reported over the weekend that police authorities are acting quickly on cases, where those arrested were often only in the talking stages of planning a plot, and often hadn't done anything to bring it to fruition.

"We don't wait until someone has lit the fuse (to) step in and prevent something from happening. That would be playing games with peoples' lives," Homeland Security Secretary Michael Chertoff said Friday as Assem Hammoud's arrest in Lebanon [for allegedly plotting to blow up tunnels in New York] was being announced.

On the other hand, AP reports, some terrorism experts say the arrests of minor figures are carried out for other reasons.

Joseph Cirincione, a national security analyst for the Center for American Progress, a liberal think tank, said he worried that the arrests of rather minor conspirators were being played up for political purposes. "This is starting to look like the president's version of rounding up the usual suspects," he said. "There is a pattern of dramatic announcements, followed by revelations that these plots weren't as serious as we all initially thought."

Stratfor, the intelligence and security organization, writes that this approach of "rolling up" suspects before they actually do anything dangerous can be best described as the "broken windows" [subscription needed] approach to fighting terrorism.

That is, there is a belief that if authorities come down hard on all "potential threats" before they become "imminent threats," terrorist attacks can be pre-empted and prevented, rather than merely prosecuted.

Startfor writes that while some argue using this approach the government "looks foolish when it hypes the arrests of such suspects," it is a "prudent use of scarce law enforcement resources."

For example, the government could have chosen to monitor the suspects in the "Miami Seven" case for years – waiting for an imminent threat to develop – before stepping in to make arrests. For example, it might be recalled that Narseal Batiste and his associates in the Miami case were believed to be trying to make contact with Al Qaeda for logistical support and training, but were subverted by an informant who contacted federal authorities. It would have been difficult for law enforcement to avoid following up on the tip; had it done so, the efforts to contact Al Qaeda likely would have continued and perhaps eventually would have succeeded. But long-term surveillance and monitoring also chews up quantities of man-hours and resources. Moreover, there is always a chance that the cell in question could somehow burn or fool the informant and manage to carry out an attack, despite being under surveillance by authorities. (This is obviously an outcome that no government law enforcement official would want to have to explain to the next "9/11 Commission.")

But in a commentary in the Turkish online paper Zaman, Ronnie D. Lipschutz, a professor of politics at the University of California, Santa Cruz, argues that the above "broken windows" approach basically amounts to the same thing as the "thought police," as depicted in the movie "Minority Report" or as in the George Orwell novel "1984," where even thinking about committing a crime amounts to actually committing one. The end result of this kind of approach, Mr. Lipschutz argues, is that you may end up creating more terrorism, rather than less.

Who amongst us has not thought, at one time or another, about violence or revenge, for real or imagined insults? How many among us have, perhaps merely out of idle curiosity, looked on the internet for information on bomb-making? And who has not discussed with friends and acquaintances what we might do under certain circumstances? Today, around the world, there are hundreds of millions of people who have the capacity for destructive acts, and a very much smaller number who will follow through. Short of arresting everyone in the first group, how can we tell them apart from the second? If the distinction is based on what people say to each other, whether on the phone, in person, or in e-mails, a great deal of surveillance is required. If the distinction rests on what people might be thinking, detection is even more difficult. Finally, arresting people for what they think or talk about might, in fact, drive more to the cause of jihadism. After all, if you risk arrest, interrogation and indefinite imprisonment for what you think and believe, why not go all the way?

Finally, the BBC reported last week that many Arab and Muslims citizens in the US believe "they are being indiscriminately targeted" by an "over-zealous use of the law," especially powers enacted under the Patriot Act. The BBC highlights the case of Ben Kahla, who was acquitted on a charge of training to fight with the Taliban and firing weapons in Afghanistan, but is now being brought before a grand jury on two charges of perjury. After the not-guilty verdict, the prosecutor who had tried the original case also brought him in front of two other grand juries to ask him the same questions that he had in the trial.

Mr. Kahla is asking that all charges be dropped. "This is not the America I know. Maybe this is what Jewish people felt with the Nazis and people in Russia experienced under Stalin," he said.


Feedback appreciated. E-mail Tom Regan.

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