TABLE OF CONTENTS INTRODUCTION 612 I. BACKGROUND 617 A. The FBI's Change in Strategy 617 B. The Entrapment and Outrageous Government Conduct Defenses 619 C. The Prevalence of Entrapment 621 II. POTENTIAL ENTRAPMENT INDICATORS 622 A. Responding to Potential Objections 623 B. The Nature of the Indicators 626 C. Indicators Derived from Case Law 627 D. The Core Six Entrapment Factors 628 E. Other Case-Law-Derived Factors 634 F. Indicators Derived from Terrorism Cases 638 1. Problematic Informant or Government Practices 638 2. The Initial Targeting of the Defendant 642 G. Characteristics of the Defendant 646 III. A DATABASE OF TERRORISM PROSECUTIONS 649 IV. RESULTS 652 A. An Overview of the Database: Descriptive Statistics 652 B. Indicators in the Cases with Informants or Agents 654 V. DISCUSSION OF RESULTS 658 A. Number of Indicators Per Case 658 B. The Prevalence of Entrapment, Borderline-Entrapment, and Outrageous Government Conduct 660 C. How Many Post-9/11 Terrorism Cases Are "Real"? 660 D. Entrapment Among the Highest-Profile Terrorism Cases 664 E. Counterterrorism Policy Recommendations 665 F. Suggested Doctrinal Reforms 666 1. Reasonable Suspicion Requirement 667 2. Entrapment Doctrine 668 3 Reflections 672 CONCLUSION 672 APPENDIX A: CODING CRITERIA FOR ENTRAPMENT INDICATORS 675 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 significant minority consisting of plots in which the informant played such a leading role that it is unlikely that the plot (or any other terrorist offense) would have arisen without government involvement.
To supplement these results, a brief analysis of a recently published list of the top sixty terror attacks and thwarted plots reveals that cases with numerous indicators of entrapment constitute a large proportion of these cases. (27) This suggests that many of the most widely known and serious cases, touted as successes in the War on Terror, have plausible entrapment claims.
In light of this Article's analysis, and recent research demonstrating that right-wing terrorists are responsible for more violence than jihadis, the government should rethink its focus on targeting law-abiding Muslims for inducement. Instead, the government should shift its resources toward passive surveillance and, at least to some degree, toward the threat of right-wing terrorism. The Article also argues for a requirement that authorities have reasonable suspicion of criminal activity before inducing defendants into crimes, and for a reformed entrapment defense focused on the defendant's likelihood of committing a similar offense...