Estimating the prevalence of entrapment in post-9/11 terrorism cases.

• Author: Norris, Jesse J.
• Position: III. A Database of Terrorism Prosecutions through Conclusion, with footnotes, tables and appendices, p. 649-677

3. A DATABASE OF TERRORISM PROSECUTIONS

   In order to estimate the prevalence of the entrapment indicators developed in Part II, this Part describes two new databases created by the authors. Previous databases of terrorism cases are not adequate for the purposes of this Article, since they are outdated and either underinclusive or overinclusive. One of the most comprehensive databases, including both convictions and open cases, was compiled by journalist Trevor Aaronson and others, in conjunction with the University of California-Berkeley's Investigative Reporting Program. (211) This database, which was published on the Mother Jones website, built on the DOJ's list of terrorism-related convictions, adding more recent convictions that fit the DOJ's inclusion criteria. The database developed for this Article builds on Mother Jones's by including more recent cases, excluding cases that are unrelated or only loosely related to terrorism, and adding cases not originally included in the database.

   Mother Jones's database ends in 2011. We updated it by conducting news searches for terrorism arrests in Google News and LexisNexis. This ensured that any terrorism prosecution that began in or after 2011 would be included, as long as it was covered in at least one story in the news media. We also drew on more recent lists of terror attacks and convictions, such as those by the New America Foundation and Charles Kurzman, to avoid missing any cases. (212) The advantage of using the New America Foundation's database is that, unlike Mother Jones's, it included cases of right-wing terrorism. However, we excluded those cases in the New America Foundation's database in which the alleged perpetrator died before being prosecuted for the offense. Successful attacks were included, as long as the defendant survived the attack and was charged with an offense.

   We excluded a number of cases that were included in the Mother Jones database. Since that database built on the DOJ's list of terrorism-related cases, it includes numerous cases with no apparent connection to terrorism, or which are only loosely or speculatively related. The DOJ even classified a case in which the defendants stole a truck full of com flakes as terrorism-related, perhaps based on an initial belief in the investigation that the defendants (who have Arabic names) may have had some connection to terrorism. (213)

   Such cases were not included in our database, since the purpose of the database is to analyze terrorism convictions and prosecutions in progress, rather than any cases with speculative or tangential connections to terrorism. However, if an individual was charged with a terrorism offense but ultimately was only convicted of a nonterrorism crime, the individual was included in the database. Serious crimes apparently motivated by radical ideologies, such as attacks on police by antigovernment extremists, are included as well, even if authorities did not charge the individual with an offense containing the word "terrorism."

   The reason for this is that the database is meant to include all cases involving crimes that fall within current definitions of terrorism, regardless of whether the specific charges contained references to terrorism as such. (214) A prosecutor may decide whether to employ a terrorism statute, as opposed to other statutes covering the same crime (such as arson or murder statutes), based on a number of considerations, such as the perceived seriousness of the crime, the desired sentence, the predicted difficulty of proving the elements of the offense, or a personal belief that a particular type of crime deserves to be called terrorism. (215) Omitting cases in which prosecutors did not employ terrorism statutes would arbitrarily restrict the scope of the database.

   We also added a number of cases that were not in the DOJ's original list and thus were also missing from the Mother Jones database. Curiously, although the government has commonly labeled actions carried out by Animal Liberation Front and Earth Liberation Front as "ecoterrorism," (216) ALF- and ELF-related convictions do not appear in the DOJ's database. The same is true for other convictions often portrayed as terrorism but which pertain to left-wing or right-wing activists, rather than Muslims or other members of minority groups. These include, for example, cases in which activists protesting the Republican National Convention in Minnesota were threatened with terrorism charges for building and planning to use Molotov cocktails. Numerous cases of right-wing domestic terrorism associated with antigovernment militias and white supremacist groups, none of which appeared on the DOJ's list, were also included in our database.

   In short, the full database includes all terrorism cases in the thirteen years since 9/11, regardless of the type of ideological motivation, while excluding cases with no direct connection to terrorism. (217) A total of 580 cases were identified meeting these criteria. The purpose of compiling a comprehensive database, rather than focusing solely on cases involving informants or undercover agents, is to produce a useful portrait of the entire field of terrorism cases. Among other things, this enables us to determine what proportion of the prosecutions involved an informant or undercover agent.

   To apply the twenty entrapment indicators, we created a smaller database comprised only of those cases in which an informant or undercover agent played a role (n = 317). In creating this database, we excluded cases in which an informant interacted with the defendant, or reported a tip to law enforcement, only after the offense had already been committed. Such cases might still be problematic for some reason--for example, a defendant might falsely claim to an informant that he committed some offense, leading to his prosecution--but not on account of entrapment or outrageous government conduct.

   In order to code the cases, we reviewed court filings, court decisions, legal briefs, news articles, and any other available information regarding each case. Based on this information, we determined whether each indicator applied to the case, using the criteria for each indicator presented in Appendix A. It was not feasible to confine our analysis to facts that were proven at trial or through other official documentation, since few of these cases went to trial or have complete records available to the public.

   Because some of these allegations may have been untrue or exaggerated, this coding methodology may overstate somewhat the presence of these indicators. However, this method is most consistent with the purpose of this project, which is to provide an estimation of the overall scale of potential entrapment abuses. It is also possible that the results understate the prevalence of the entrapment indicators, since in many of the cases, there is little or no information available regarding the role of the informant in the offense.

4. RESULTS

   This Part briefly describes the content of the database of post-9/11 terrorism prosecutions, and presents findings about the prevalence of the twenty indicators in those cases in which an informant or undercover agent played a role.

   1. AN OVERVIEW OF THE DATABASE: DESCRIPTIVE STATISTICS

      Types of terrorism offenses. The full database of post-9/11 terrorism prosecutions contains a total of 580 cases. Table 1 shows the relative frequency of each type of terrorist offense. The cases under "plotting a specific terrorist attack" exclude successful and attempted attacks. Attempted attacks do not include sting operations.

      Ideological motivations. Table 2 summarizes the religious or political ideologies motivating the 580 terrorism cases in the database. The largest proportion of cases (338 or 58%) involved jihadi terrorism. The second largest group (149 or 26%) involved right-wing terrorists, including neo-Nazis and other white supremacists, members of antigovernment militias, adherents of "patriot" or "sovereign citizen" ideology, and anti-abortion extremists. (218) Forty-four (8%) of cases were motivated by animal rights, environmental, or left-wing ideology. Twenty-eight (5%) concerned Colombian terrorist groups, with three-quarters of these offenses involving Fuerzas Armadas Revolucionarias de Colombia (FARC), and the remaining quarter related to right-wing paramilitaries designated as terrorist organizations under American law. Eighteen (3%) of the cases involved alleged South or East Asian terrorists, predominantly the Tamil Tigers of Sri Lanka.

      The Use of Informants or Undercover Agents. Three hundred and seventeen (55%) of the cases involved an informant or undercover agent before or during the commission of the crime. All of these cases are included in the smaller database.

   2. INDICATORS IN THE CASES WITH INFORMANTS OR AGENTS

      Zero-scoring cases. Fifty-three of the 317 cases involving informants or government agents are not coded for any of the indicators of entrapment ("zero-scoring cases"). In many cases, this was because of a dearth of information on the role of the informant in the case. In other cases, this was due to the rather minor role of the informant. For example, the informant's role was sometimes limited to communicating a tip to the authorities. In most of the analyses below, the zero-scoring cases are excluded, in order to focus on cases with sufficient information and nontrivial informant involvement. (219) However, statistics including zero-scoring cases are regularly provided in the text, in order to display the findings for the entire informant-related database.

      Average number of indicators. Table 3 shows the average number of indicators of entrapment by ideological type of terrorism (with zero-scoring cases removed). The average number of indicators per case, overall, is 5.3. To break this down by ideological type, those accused of jihadi terrorism had an average of 6.3 indicators, alleged right-wing terrorists averaged 2.8...