Race, Entrapment, and Manufacturing 'Homegrown Terrorism

• Author: Sahar F. Aziz
• Position: Visiting Professor at Princeton University School of Public and International Affairs, Kleh Visiting Distinguished Professor of International Law at Boston University School of Law (Fall 2021), and Professor of Law, Chancellor's Social Justice Scholar, and Middle East Legal Scholar at Rutgers University Law School, and Director of the Center...
• Pages: 381-463

ARTICLES

Race, Entrapment, and Manufacturing

“Homegrown Terrorism”

SAHAR F. AZIZ*

At what point does offensive speech cross the line from being constitu-

tionally protected to criminal? Rarely—would be the response of a free

speech purist. Indeed, the First Amendment is intended to protect unpop-

ular, offensive, and even subversive speech. Although this lesson may be

taught to American schoolchildren, it is not the lived experience of

Muslim dissidents, especially at the more extreme end of the political

spectrum. And yet, the white extremists whose racist and anti-government

hate speech has skyrocketed since the election of President Obama have

not received attention commensurate to their growing influence.

1

See Confronting White Supremacy (Part I): The Consequences of Inaction: Hearing Before the

Subcomm. on C.R. & C.L. of the H. Comm. on Oversight & Reform, 116th Cong. 9–19 (2019)

(statements of Susan Bro, President/Board Chair, Heather Heyer Foundation; George Selim, Senior Vice

President of Programs, Anti-Defamation League; Michael German, Fellow, Brennan Center for Justice;

Omar Ricci, Chairperson, Islamic Center of Southern California; Roy L. Austin, Partner, Harris,

Wiltshire & Grannis, LLP; and Robby Soave, Associate Editor, Reason Magazine); Confronting Violent

White Supremacy (Part II): Adequacy of the Federal Response: Hearing Before the Subcomm. on C.R.

& C.L. of the H. Comm. on Oversight & Reform, 116th Cong. 20–30 (2019); EXTREMISM &

RADICALIZATION BRANCH, DHS, RIGHTWING EXTREMISM: CURRENT ECONOMIC AND POLITICAL

CLIMATE FUELING RESURGENCE IN RADICALIZATION AND RECRUITMENT (2009). This Department of

Homeland Security report led to the marginalization of its author Daryl Johnson, who was removed from

his post shortly after its publication due to backlash from his colleagues. See Lois Beckett, ‘Blood on

Their Hands’: The Intelligence Officer Whose Warning Over White Supremacy Was Ignored, GUARDIAN

(Aug. 8, 2019, 1:00 PM), https://www.theguardian.com/us-news/2019/aug/07/white-supremacist-terrorism-

intelligence-analyst [https://perma.cc/Y8LW-FWXF].

Only

after they seized the United States Capitol in January 2021 did the gov-

ernment shift its domestic security priorities to meaningfully address the

threat posed by far-right-wing groups.

Such disparate treatment of political extremists of different racial and

religious identities prompts the question: Is the problem one of law or of

law enforcement? This Article argues that selective counterterrorism

* Visiting Professor at Princeton University School of Public and International Affairs, Kleh Visiting

Distinguished Professor of International Law at Boston University School of Law (Fall 2021), and

Professor of Law, Chancellor’s Social Justice Scholar, and Middle East Legal Scholar at Rutgers

University Law School, and Director of the Center for Security, Race and Rights. © 2023, Sahar Aziz.

The author thanks the faculty at the University of Connecticut School of Law and the Chicago-Kent

College of Law for their feedback during faculty colloquia. Thank you to Professors Alexander Reinert,

Shirin Sinnar, Stephen Dycus, William Banks, and Jonathan Hafetz for their insightful feedback on

earlier drafts. The author thanks Sarah Calderone, Sabah Abbasi, Joseph Carr, Dina Mansour, August

Fessant-Eaton, and Pati Candelario for their diligent research assistance. She also thanks Professor

Rebecca Kunkel for her able librarian research support.

1.

381

enforcement allocates disproportionate resources targeting Muslim com-

munities; all the while, entrapment law fails to protect these communities

from predatory sting operations. The extent to which otherwise First

Amendment-protected activities are criminalized is most glaring in post-

9/11 terrorism prosecutions in which Muslim defendants ensnared in

sting operations have raised an entrapment defense. Specifically, a

defendant’s social media posts—prior to the sting operations—are used

as evidence of his predisposition to commit a terrorist act, notwithstand-

ing that the plot was developed and led by an informant or undercover

agent. Offensive speech is bootstrapped into showing a defendant’s will-

ingness to commit a crime. Although numerous journalists and lawyers

have come to this conclusion, the empirical basis is underdeveloped.

This Article empirically tests, based on the author’s database of 646

federal terrorism-related cases brought against Muslims between 2001

and 2021,

2

the normative claim that the Federal Bureau of Investigation

(FBI) is manufacturing a “homegrown terrorism” threat through aggres-

sive sting operations that prey on young Muslim men who are vulnerable

for myriad psychological, economic, and political reasons.

3

This normative claim is made by others, including investigative journalist Trevor Aaronson and

the Coalition on Civil Freedoms. See generally TREVOR AARONSON, THE TERROR FACTORY: INSIDE THE

FBI’S MANUFACTURED WAR ON TERRORISM (2013); COAL. FOR CIV. FREEDOMS, THE TERROR TRAP:

THE IMPACT OF THE WAR ON TERROR ON MUSLIM COMMUNITIES SINCE 9/11 (2021), https://uploads-ssl.

webflow.com/614ac1d8e9f8db7ee5ba75b3/615fe1c9d2db9c6a0a2627f5_THE%20TERROR%20TRAP

%20-%20FINAL.pdf [https://perma.cc/LL38-M4N4]. However, this Article is the first test of the

normative claim in an empirical study of 646 federal terrorism-related prosecutions against Muslim

defendants from 2001 to 2021.

The analysis

reveals a criminalization of religious and dissident Muslims who have

engaged in extremist speech but who have not engaged in violence with-

out government ensnarement, while far-right supremacist groups are

simultaneously granted license to plan politically motivated violence,

culminating in a siege on the U.S. Capitol.

4

See Mark Mazzetti, Helene Cooper, Jennifer Steinhauer, Zolan Kanno-Youngs & Luke

Broadwater, Inside a Deadly Siege: How a String of Failures Led to a Dark Day at the Capitol, N.Y.

TIMES (June 8, 2021), https://www.nytimes.com/2021/01/10/us/politics/capitol-siege-security.html; see

also Andrew Selsky, Capitol Attack Reflects US Extremist Evolution Over Decades, AP NEWS (Jan. 23,

2021), https://apnews.com/article/capitol-siege-riots-coronavirus-pandemic-b7123f0a223c6ed8098a0

3b459120c83 [https://perma.cc/PA3B-LXN6]; Ryan Devereaux, Capitol Attack Was Culmination of

Generations of Far-Right Extremism, INTERCEPT (Jan. 23, 2021, 8:00 AM), https://theintercept.com/

2021/01/23/capitol-riot-far-right-extremism/ [https://perma.cc/M6BK-LNTT].

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384

I. THE ROADMAP OF MANUFACTURING (MUSLIM) HOMEGROWN TERRORISM 388

2. The database of federal terrorism-related cases brought against Muslims between 2001 and 2021 is

on file with the author.

3.

4.

382 THE GEORGETOWN LAW JOURNAL [Vol. 111:381

II. RADICALIZATION AS DE JURE PREDISPOSITION TO COMMIT (FAKE)

TERRORISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393

A. THE ANATOMY OF A STING OPERATION . . . . . . . . . . . . . . . . . . . . . . . 393

B. RATIONALE FOR STING OPERATIONS: GETTING MUSLIM RADICALS

OFF THE STREETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397

III. THE PAPER TIGER OF ENTRAPMENT LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 401

A. EVOLUTION OF ENTRAPMENT LAW IN THE U.S. SUPREME COURT. . . . 404

B. THE SEVENTH CIRCUIT AND JUDGE POSNER’S ROBUST

POSITIONALITY TEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410

C. THE SECOND AND THIRD CIRCUITS’ THREE-FACTOR PREDISPOSITION

TEST.................................................. 413

D. THE FIRST, SIXTH, SEVENTH, NINTH, AND TENTH CIRCUITS’ FIVE-

FACTOR PREDISPOSITION TEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416

E. CASE-BY-CASE PREDISPOSITION TESTS IN THE FOURTH, FIFTH,

EIGHTH, AND ELEVENTH CIRCUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

IV. CASE STUDIES: ENTRAPPING THE INCOMPETENT, BOMBASTIC, MENTALLY

ILL, AND INDIGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422

A. THE INCOMPETENT BOMBASTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424

1. Harlem Suarez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424

2. Joseph Jones and Edward Schimenti . . . . . . . . . . . . . . . . 428

3. Terry Lee Loewen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

4. Damon Michael Joseph . . . . . . . . . . . . . . . . . . . . . . . . . 438

B. THE PSYCHOLOGICALLY UNSTABLE . . . . . . . . . . . . . . . . . . . . . . . . . . 441

1. Mohamed Salat Haji. . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

2. Sami Osmakac . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443

C. WHEN THERE IS NO TERRORISM, SET THEM UP FOR FALSE

STATEMENTS............................................ 446

D. THE POTENTIALLY LEGITIMATE CASES (RALPH KENNETH DELEON) . . 451

V. RESUSCITATING THE ENTRAPMENT DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . 452

A. UNIFYING FEDERAL ENTRAPMENT COMMON LAW DOCTRINE. . . . . . . 453

2023] ENTRAPMENT AND MANUFACTURING “HOMEGROWN TERRORISM” 383