[T]he essence of what occurred here is that a government ... came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own, created acts of terrorism out of his fantasies of bravado and bigotry, and made those fantasies come true.... [R]eal terrorists would not have bothered themselves with a person who was so utterly inept [O]nly the government could have made a terrorist out of Mr. Cromitie, a man whose buffoonery is positively Shakespearian in its scope.
U.S. District Court Judge Colleen McMahon, United States v. Cromitie (1)
Prior to September 11, 2001, if an agent had suggested opening a terrorism case against someone who was not a member of a terrorist group, who had not attempted to acquire weapons, and who didn't have the means to obtain them, he would have been gently encouraged to look for a more serious threat. An agent who suggested giving such a person a stinger missile or a car full of military-grade plastic explosives would have been sent to counseling. Yet ... such techniques are now becoming commonplace.
Michael German, former FBI agent (2)
Hamid [Hayat] is a hapless character, but, my God, he isn't a terrorist. The government counted on hysteria, the 1,000-pound gorilla, to be in the room. And it worked.
James J. Wedick, thirty-five-year veteran of the FBI (3)
TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The FBI's Change in Strategy B. The Entrapment and Outrageous Government Conduct Defenses C. The Prevalence of Entrapment II. POTENTIAL ENTRAPMENT INDICATORS A. Responding to Potential Objections B. The Nature of the Indicators C. Indicators Derived from Case Law D. The Core Six Entrapment Factors E. Other Case-Law-Derived Factors F. Indicators Derived from Terrorism Cases 1. Problematic Informant or Government Practices 2. The Initial Targeting of the Defendant G. Characteristics of the Defendant III. A DATABASE OF TERRORISM PROSECUTIONS IV. RESULTS A. An Overview of the Database: Descriptive Statistics B. Indicators in the Cases with Informants or Agents V. DISCUSSION OF RESULTS A. Number of Indicators Per Case B. The Prevalence of Entrapment, Borderline-Entrapment, and Outrageous Government Conduct C. How Many Post-9/11 Terrorism Cases Are "Real"? D. Entrapment Among the Highest-Profile Terrorism Cases E. Counterterrorism Policy Recommendations F. Suggested Doctrinal Reforms 1. Reasonable Suspicion Requirement 2. Entrapment Doctrine 3. Reflections CONCLUSION APPENDIX A: CODING CRITERIA FOR ENTRAPMENT INDICATORS INTRODUCTION
Entrapment allegations abound in contemporary terrorism cases. (4) Even in cases in which the defendants themselves do not raise the entrapment defense, legal scholars, journalists, and defense attorneys often argue that government informants are tempting defendants into crimes that would never otherwise have been committed. (5) Frequently, the claim is not only that the defendant, without an informant's involvement, would never have committed this particular crime, but also that the defendant would never have committed any terrorist offense. (6)
This critique appears to have merit, at least with respect to the most egregious cases. The case of James Cromitie, who was prosecuted for plotting to bomb synagogues and shoot down military planes, is a prime example. U.S. District Court Judge Colleen McMahon, in the quote introducing this Article, made clear that she believed Cromitie to have had no ability to carry out any terrorist act whatsoever. (7) As Judge McMahon wrote in another order, Cromitie "would not have had the slightest idea how to make [a terrorist attack] happen." (8) At sentencing, she emphatically stated, "I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition." (9)
Despite these statements, however, Judge McMahon refused to rule that Cromitie was entrapped as a matter of law, and she sentenced him to twenty-five years in prison. (10) The Second Circuit upheld her decision, though only over the vigorous dissent of Chief Judge Dennis Jacobs. (11) More broadly, despite attempts to raise the entrapment defense (and the related outrageous government conduct defense) by several defendants in post-9/11 terrorism cases, not a single one has been successful. (12) The failure of these doctrines may result not from weaknesses in the defendants' cases, but rather from various other factors, including shortcomings in the doctrines themselves. (13)
Due to uncertainty about the entrapment defense's applicability to particular cases, this Article sometimes refers to "entrapment or borderline entrapment." We use the term "borderline entrapment" to signify a case in which entrapment is arguable, because the defendant would probably not have engaged in terrorism without government encouragement, but which may fall short of the legal standards operative in the particular jurisdiction.
For example, even though Cromitie would have never committed an act of terror on his own and had to be offered extraordinary inducements before he finally agreed to participate, the courts did not recognize this as entrapment. (14) Normatively, such cases should be just as problematic as cases in which the entrapment doctrines unquestionably apply, because they indicate that the government has prosecuted, to use Judge Richard Posner's language, an "objectively harmless" person. (15) This violates the policy concerns underlying the entrapment defense, which courts developed to prevent the "manufacturing of crime." (16)
Although some legal scholars have noted the apparent presence of entrapment in contemporary terrorism prosecutions, their work has not yet clarified the full extent of entrapment, or borderline entrapment, in these cases. (17) Instead, their articles tend to limit themselves to narrative descriptions of the most problematic cases. The same is true for nonacademic publications, such as those by the Center for Human Rights and Global Justice at New York University Law School. (18) Even the first full-length book on terrorism and entrapment, The Terror Factory: Inside the FBI's Manufactured War on Terror by Trevor Aaronson, discusses a fairly small number of cases, though more than most sources. (19)
Despite this, many observers seem to believe that entrapment is widespread in terrorism cases, and one critic goes so far as to claim that only 1% of terrorism prosecutions represent "real" threats. (20) At the other end of the spectrum, some see the government's approach as a rational, defensible strategy, and suggest that entrapment is virtually impossible in terrorism cases. (21) This Article takes a solid first step toward evaluating these competing claims, and estimating entrapment's true prevalence.
This Article analyzes all post-9/11 terrorism prosecutions, in order to identify any cases presenting plausible entrapment claims. (22) This enables a more nuanced and thorough assessment of entrapment in terrorism cases, useful for analyzing both individual cases and the government's prosecutorial practices as a whole.
To estimate the scale of potential entrapment or outrageous government conduct, this Article presents two databases developed by the authors. The first database, encompassing all post-9/11 terrorism prosecutions in U.S. courts, improves on previous databases by excluding cases with only speculative links to terrorism, while including those motivated by right-wing or left-wing ideology. (23) It should be noted that, although "terrorism" is a contested term subject to manipulation for political purposes, the Article employs it for the sake of convenience based on the reality of the government's use of the word to describe a wide variety of ideologically motivated crimes. (24) Accordingly, this Article uses a broad definition of terrorism, applying the term to any serious violent or property crime committed to advance a particular ideology (such as, for example, jihadi, left-wing, or right-wing ideology). (25)
The second, smaller database is composed only of those cases involving an informant or undercover agent before the crime was committed. To estimate the strength of a potential entrapment or outrageous government conduct defense in each case, the Article develops twenty indicators of entrapment or outrageous government conduct, based on the relevant case law and recurrent features from examples of alleged entrapment in terrorism cases. Drawing on court documents and various other sources, we evaluated the cases in the second database to determine whether each of the twenty indicators was present.
The results suggest that entrapment (or borderline entrapment) is quite prevalent within terrorism prosecutions and that the case for entrapment is especially strong among the most serious cases, in which defendants were accused of plotting a specific terrorist attack. Cases with numerous indicators comprise a significant percentage of all informant cases, particularly in jihadi and left-wing cases. (26) While the most well-known cases of possible entrapment average more indicators than other cases, they do not represent the majority of the high-scoring cases. These results demonstrate that facts or allegations supporting an entrapment or outrageous government conduct defense are not present only in a small handful of cases, but instead are widely distributed.
Critics of the government appear to be correct that only a small percentage of terrorism prosecutions involve a serious threat to public safety. However, our estimate of the percentage of cases representing a genuine threat of a terrorist attack (about 9% of the cases) is somewhat larger than that of the most extreme critics. The majority of the terrorism prosecutions since 9/11 appear to involve crimes with a relatively attenuated link to domestic public safety (such as donations to foreign terrorist groups or attempts to join them overseas), with a...