Three young Muslim men who reside in Brooklyn (two native of Uzbekistan, one Kazakhstan) were arrested yesterday in connection with a plot to join the Islamic State (a.k.a. ISIL or ISIS) and carry out violent jihadist attacks either in ISIS-controlled territory overseas or in the United States.
In the course of the investigation, as detailed in the complaint filed in federal court in Brooklyn, the FBI used a confidential informant, who pretended to be an ISIS sympathizer, in order to gather evidence. So, as night follows day, the cable news commentary is filled with talk of “entrapment.” The gist is that the three men were ne’er-do-wells who may have aspired to jihadi combat and martyrdom but who lacked the skills and the means; the FBI, the story goes, managed to infiltrate a slick informant into their circle, and he skillfully steered them into a bunch of crazy talk about killing infidels – which he recorded, enabling the government to file charges and appear to be doing something meaningful about terrorism when, in fact, there was no serious threat.
The entrapment commentary is frivolous. Those spouting it either do not know the federal law of entrapment or have not read the allegations in the complaint (which is here).
As I’ve outlined on other occasions (see, e.g. here), to defeat a claim of entrapment, federal law requires the prosecution to show either that (a) the defendant, not the government, initiated the criminal activity, or (b) even if the government was the initiator, the defendant was predisposed to engage in the criminal activity.
According to the complaint, a month before they ever met the informant, the defendants espoused radical Islamic ideology, were posting support for ISIS on a jihadi website, were reaching out to ISIS figures overseas, were making efforts to join ISIS, and were making inquiries about whether attacks here – such as assassinating President Obama – would be worthy contributions to ISIS’s pursuit of a global caliphate.
Weeks after that evidence was already in hand, the FBI used an informant to approach one of the defendants in a mosque. Thereafter, the informant recorded conversations with the defendants – in some of which it was they who tried to entice the informant to join them in trying to join ISIS. Ultimately, in fact, one of the defendants was arrested at the airport trying to do just that.
Patently, there is no entrapment in this case. The government did not initiate the terrorist activity – it discovered the activity in midstream and gathered evidence about it. It should thus go without saying that the defendants were predisposed to engage in terrorist planning since they were thus engaged when investigators first encountered them.
I have also heard suggestions that the government should have let the plot play out longer for intelligence purposes – allowing the would-be terrorists remain on the loose, watching whom they met with, etc. These suggestions also appear to uninformed because that’s exactly what the government did.
The FBI first came upon one of the radicals in early August 2014, after he posted a message to a pro-ISIS Uzbek language site (Hilofatnews), saying,
We too wanted to pledge our allegiance and commit ourselves [to ISIS] while not present there [i.e., in Iraq and Syria]. I am in USA now but we don’t have any arms. But is it possible to commit ourselves as dedicated martyrs anyway while here? What I’m saying is, to shoot Obama and then get shot ourselves, will it do? That will strike fear in the hearts of infidels.
Although they had a man pondering killing the president of the United States (something he soon confirmed to interviewing agents), the FBI nevertheless let the plot play out for seven months – while keeping appropriately close tabs on the suspects – until arrests were finally made yesterday as one of the men was trying to leave the country on a flight to Turkey, whence he hoped to cross the border into Syria and join ISIS. The agents were thus able to collect valuable intelligence on how would-be jihadists network and attempt to deal with the difficulties of getting to the territory controlled by ISIS at a time when Western law enforcement and intelligence agencies have heightened surveillance and travel barriers. The Justice Department did not make arrests until a suspect – whom they might otherwise have lost, and who might have gone on to commit atrocious acts overseas – was about to hop on a plane.
In every terrorism investigation involving plotting in the United States, the government has to balance the need to gather intelligence against the imperative to neutralize would-be terrorists by long periods of incarceration – which, with terrorists caught in the U.S., presumptively means prosecution in the civilian criminal justice system. At least from initial indications, it looks like the government struck the right balance in this case.