But do the Wolverine Watchmen militia members have a valid claim?
But do the Wolverine Watchmen militia members have a valid claim?
W hat would it take to entice you to commit a mass-murder attack?
I wouldn’t have bet on it, but I did actually get to pose that question once. It was about 25 years ago, speaking to the jury at the end of the Blind Sheikh trial. I’d first gotten involved in the investigation nearly three years earlier, a few weeks after the World Trade Center was bombed in February 1993 … but well before we would finally arrest jihadists in flagrante delicto, mixing explosives in a Queens safehouse — explosives they were planning to detonate in the Lincoln and Holland Tunnels, two of several targets on their hit list in what became known as the “New York City Landmarks” plot.
Given that experience, it is no surprise that my eye was quickly caught by the big BuzzFeed.News story this week, about the investigation of the Wolverine Watchmen militia and its — or, as some allege, the FBI’s — plot to kidnap Michigan governor Gretchen Whitmer.
What we are looking at with the Watchmen is a covert investigation of terrorism, mainly relying on informants, in the domestic context — in the sense that, whether the suspected terrorist group under investigation is deemed “domestic” (i.e., American citizens) or “foreign,” the activities being probed took place inside the United States, and thus under all the safeguards of the Constitution and statutory law. My investigation in 1993 could have been described the same way.
It did not strike me as controversial that we used “sting” investigative techniques back then. For one thing, the Twin Towers had just been bombed, and the jihadist cell was clearly still active — the handful of arrests right after the bombing hadn’t shut down the broader cabal. In such circumstances, the object of the game is to prevent more atrocities from happening, rather than being content to prosecute only after people have been killed.
Moreover, I had done covert investigations before, in dealing with organized crime (OC). This involves professional criminals — e.g., members or associates of the Mafia (the most infamous OC organization) — who make their living violating the law, a “profession” that is inherently violent for obvious reasons.
(By the way, I am using the term “covert,” even though these are more often called “undercover” investigations, because undercover can be a confusing term. In law-enforcement lingo, an “undercover” is a law-enforcement agent who pretends to be a criminal in order to gather evidence against actual criminals. Private citizens who are not police often perform the same function, under the supervision of law-enforcement agents, but they are called “informants” even though they work undercover.)
I describe terrorism and OC investigations, and the fact that, at the time, the covert tactics seemed unexceptional, because of the hue and cry over the heavy use of informants in the Watchmen probe, as reported by BuzzFeed.
It is virtually always the case that some suspects caught up in a sting operation will claim to have been entrapped, as a number of the Watchmen are poised to do. The defense is nearly always a loser, though it may be the only conceivable defense a suspect has, because a well-run covert investigation won’t leave room for much else.
Why are we surprised that entrapment claims tend to be weak even if it appears that the police were deeply involved in the criminal activity charged, to the point of appearing to orchestrate it? It is mainly because media coverage — especially at the pretrial stage, when it is mostly defense lawyers speaking to the press — focuses on the wrong issue.
When it comes to entrapment claims, what matters most is the nature of the criminal conduct at issue. The degree of police aggressiveness is a side issue. Indeed, the more serious and potentially violent the crime, the more aggressiveness we expect from the police and their informants.
If you’re not focused on the nature of the crime, then any discussion of entrapment escapes the realm of common sense and enters that of a dry, artificial law-school exam.
The legal test of entrapment is straightforward. Entrapment is police enticing of a person to commit a crime that the person was not otherwise disposed to commit. Consequently, as a matter of law, there can be no entrapment if the accused (a) proposed or otherwise initiated the crime, or (b) was predisposed to commit the crime, even if the government proposed it.
Once that sinks in, it is easy to see why entrapment defenses nearly always fail. If the crime is the accused’s idea, or if the accused is obviously a crook (such as a Mafia member) who is just looking for any opportunity, pitched by anyone, for a criminal payday, then the law doesn’t care how heavy-handed the police investigation was (provided there were no constitutional violations, such as illegal searches or forced confessions).
There is rarely much dispute about how a crime was initiated. In covert investigations, most everything an informant does is recorded, so it is a simple thing to show who or what was the catalyst. But if we assume this is arguable, the case is going to come down to predisposition. In a law-school fact pattern, where the professor is testing the student’s grasp of entrapment principles, that could be an interesting question.
In the real world, though, it’s usually a silly question, and the more heinous the crime, the more silly the question becomes. Why? Because innately law-abiding people do not get entrapped into committing violent crimes.
About a year before I took over the terrorism investigation, the Supreme Court had occasion to revisit its entrapment jurisprudence in Jacobson v. United States (1992). It is an infuriating case. Not because the justices, in a narrow 5-4 ruling, found that the defendant had been entrapped, but because of both the nature of the crime — receiving through the U.S. mail pornography depicting minors (preteen and teenage boys) — and the overbearing conduct of the postal inspectors.
Keith Jacobson was basically minding his own business. He bought a legal magazine that depicted nude models not engaged in sexual activity. That was enough to get on the inspectors’ radar. They then spent two and a half years trying to get Jacobson to order child pornography. He repeatedly ignored or refused the entreaties, which mixed vague offers (images of “neophytes,” for example) with political messaging about free expression. U.S. Customs agents jumped in, too, the government apparently figuring some foreign flavor could make the offers more alluring. Finally, Jacobson’s curiosity was piqued by a catalogue the agents sent, offering photos of boys engaged in sexual activities. He ordered . . . and the feds arrested him when he showed up at the post office to claim the package.
Jacobson might not have become curious at all had the government not hounded him, time after time, month after month. Was he predisposed? Like a jury, I’m no mind-reader, but I can certainly see that he wasn’t out to hurt anyone. When law-enforcement agents are so bizarrely obsessive about nailing someone who isn’t looking to hurt anyone, it is not hard to see that they have abused their power in trapping the unwary.
But that is not a terrorism case. And that is not a kidnap-the-governor case. Could anyone entice you into kidnapping anyone, let alone the governor of a state — and maybe blowing up a bridge while you’re at it? Of course not.
To be clear, there is a great deal about the Watchmen case that bears examination. It is reasonable to ask, for example, whether the government is taking legal conduct that progressives find distasteful — e.g., shooting practice, paramilitary exercises, Second Amendment advocacy, and engaging in angry rhetoric about the government — and (at least as to some minor players in the case) whipping it up into a crime without very convincing evidence that those involved agreed to join a kidnapping conspiracy.
On that score, the BuzzFeed reporting makes much of the very explicit statements by the informants, which prosecutors will exploit to impute knowledge to the defendants. It is worth noting why informants are trained to speak very explicitly about criminal schemes — something that can be very dangerous, because real criminals become suspicious of accomplices who speak too much and too openly. The FBI knows that, when a case gets to court, defendants are apt to claim lack of knowledge and intent. If the defendants have participated in explicit conversations, however, claims that they were unaware of what was happening, or did not intend any harm, are not credible.
That said, a defendant will not be convicted unless the government can prove beyond a reasonable doubt that he understood what was going on and took affirmative steps to further the scheme. A person may not be found guilty because he knows bad actors or was in the vicinity during criminal conversations. There must be proof of knowing, intentional participation.
In any event, entrapment claims usually sound a lot stronger in the pretrial stage, when defense lawyers are trying to frame the case for the court of public opinion (including the jury pool), than they do during trial, when the evidence starts mounting in the court of law. Even if entrapment cannot be established, there may still be disturbing aspects of the investigation — are people being targeted for their political views, or is their constitutionally protected conduct being criminalized under the guise of an elastic view of conspiracy? It is too early to tell.
Also, even if entrapment cannot be established as a matter of law, it is always possible that jurors will acquit on nullification grounds if the police conduct is over the top — too aggressive, too intrusive, too involved in pushing along a scheme that might not otherwise have been formed.
But that is exceedingly rare. Covert tactics are usually reserved for heinous crimes, and the more potentially deadly the crime, the more leeway people are willing to give the police to be aggressive.
On that note, one last point. In the eight years from the time the World Trade Center was bombed in 1993 until it was destroyed in 2001, the United States was subjected to a string of jihadist plots and attacks — WTC, the Landmarks, the Bojinka airliners plot, Khobar Towers, the embassies in eastern Africa, the USS Cole, and finally 9/11. The death count is very high.
Out of all those terrorist schemes, we managed to stop just one — the Landmarks conspiracy. I’d love to be able to tell you it was because we had better prosecutors and investigators running the case. But we didn’t. The only difference between the Landmarks and the other plots is we had an informant — a brave man who pretended to be a terrorist, infiltrated the cell, and gave us real-time information about what the jihadists were planning.
Practically speaking, if the FBI does not use informants, undercover agents, and covert tactics, it cannot prevent horrific crimes. It must be content to prosecute only after they’ve happened and people have been hurt or killed. No one likes the notion of risking the entrapment of the innocent. If a criminal conspiracy is grave, though, there is little chance that an innocent person could be entrapped into it, and a high likelihood that only an informant can thwart it.