Sixty Shades of Terror Plots: Locating the Actus Reus and the Hypothetical Line for Entrapment

• Publication year: 2022

48 Creighton L. Rev. 393. SIXTY SHADES OF TERROR PLOTS: LOCATING THE ACTUS REUS AND THE HYPOTHETICAL LINE FOR ENTRAPMENT

SIXTY SHADES OF TERROR PLOTS: LOCATING THE ACTUS REUS AND THE HYPOTHETICAL LINE FOR ENTRAPMENT

ROBERT BEJESKY(fn*)

I. THE TERROR THREAT MILIEU ................... 394

II. CASES ............................................. 400

A. Actual Perpetration ............................. 400

B. Generalizing Actual Attacks and Failed "Plots". . . 404

C. Failures in the Act .............................. 406

D. Groups and Individuals Conspiring Prior to Law Enforcement Intervention .................. 408

E. Attending a Suspect Terrorist Camp ............. 423

F. Loner Suspect Terrorists on a Quest to Locate Friends ......................................... 426

G. Weaker Cases of Loner Suspected Terrorists Searching for Friends ........................... 433

III. ANALYSIS ......................................... 443

A. Presumptions of Guilt and Danger ............... 443

B. Plots or Large-Scale Violence Without Radical Islam ........................................... 452

IV. CONCLUSION ..................................... 458

ABSTRACT

Due to the impact on privacy rights, the whistleblower accounts of Edward Snowden, demands for legislation to curb intrusive surveillance, and the impact of potential privacy violations on the evidentiary record in criminal convictions, Congress recently initiated investigations into the use of intelligence agency surveillance in FBI terror suspect investigations. Officials from the national security apparatus testified and advocates maintain that dozens of "terror plots" have been foiled since 9/11, but other experts report that the record does not substantiate these numbers. For example, in July 2014, Human Rights Watch brought merited attention to this issue when it produced a report and accused the FBI of entrapping informants in nearly all high-profile terrorism cases, "creat[ing] terrorists out of law-abiding individuals," and targeting American Muslims in the agency's counterterrorism investigations.(fn1) This Article's scope is concerned with navigating the opposing positions and evaluating the evidentiary precedent substantiating criminally-punishable acts that have been classified as "terror plots" in order to assess whether actual danger from terrorism reasonably comports with emotive societal perceptions regarding terrorism.

I. THE TERROR THREAT MILIEU

The perception of peril from terrorism has enculturated American society and has created standard protocol responses that can beget tragedy. On October 3, 2013, a driver did not halt after officer demand at the Capitol Police security booth on Constitution Avenue in Washington D.C., but instead made a U-turn and Capitol Police and Secret Service officers shot at the driver with semiautomatic pistols.(fn2) The driver fled. Officers pursued the reckless driver down Pennsylvania Avenue, fired shots at multiple locations, and eventually killed the driver in her car.(fn3)

Police departments generally cannot open fire on vehicles, but as the New York Times reported, "[w]ith responsibility for safeguarding two of the country's most significant landmarks, however, the Capitol Police and the Secret Service are particularly attuned to potential terrorist threats."(fn4) John Miller, former FBI assistant director and regular CBS commentator for terrorism news, remarked that after the car rammed the barricade at the Capitol Police security booth, the officers might have believed that there was an automobile bomb and thought, "is this a terrorist attack, is there a button under the dashboard . . . [?]"(fn5)

The driver was Miriam Carey, a 34-year-old dental hygienist from Connecticut, who suffered from postpartum depression.(fn6) Carey's infant daughter was present in the automobile when she sped away and led the officers on a car chase.(fn7) This heartbreaking event might have been due to an impulse reaction and protocol response that may ultimately be attributable to the common perception about terror threats.(fn8) How scrupulously does the actual threat level from terrorism correspond to societal beliefs about the danger from terrorism?

Consider two opposing perceptions. In a 2007 Los Angeles Times article, Professors David Cole and Jules Lobel assessed the data provided by the Bush Justice Department and underscored that the Justice Department claimed that there were 261 "terrorism or terrorism-related" convictions between 9/11 and June 2006, but the truth is that there were only two cases of attempted terrorist activity.(fn9) Two years later, Professor Cole still criticized the approach of prosecuting individuals without the commission of crimes.(fn10)

Alternatively, the Heritage Foundation announced that in 2007 it became the only organization that began tracking thwarted terrorist attacks against the United States.(fn11) Writing articles with titles such as "60 Terrorist Plots Since 9/11,"(fn12) Heritage Foundation researchers counted 39 post-9/11 plots foiled on May 20, 2011,(fn13) 40 plots foiled on September 7, 2011,(fn14) 50 plots foiled on April 25, 2012,(fn15) and 60 plots foiled on July 22, 2013.(fn16) The titles should not be interpreted to impart that there has been a steeply appreciating number of events in more recent years because some events were later reclassified and inserted into previous years(fn17) and many of the "plots" were intricate FBI sting operations that began in later years.(fn18)

Debate over the threat perceptions led to political confrontation in Congress because potential law enforcement practices can infringe privacy rights.(fn19) Federal and state legislation was proposed to more adequately control surveillance operations(fn20) and criminal cases and sentencing proceedings were delayed due to questions over the legality of law enforcement techniques.(fn21) As a response to the high-profile whistleblower accounts of former National Security Agency (hereinafter "NSA") contractor Edward Snowden, in June 2013, U.S. Senators challenged the allegations of national security officials who maintained that dozens of terror plots had been foiled since 9/11.(fn22) Senators contended: "We have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence . . . ."(fn23) Federal courts are currently divided over the constitutionality of the NSA's mass data collection program.(fn24) In April 2014, the Supreme Court denied certiorari to resolve the division, but liberal Justice Ruth Bader Ginsberg remarked about a future case, "[w]e can't run away" from the issue by claiming lack of knowledge on the subject; while conservative Justice Antonin Scalia expressed that the Court may not be the most appropriate institution to address national security issues, but stated that the essence of the issue does involve "balancing the emergency against the intrusion . . . ."(fn25)

With the debates over privacy violations and accuracy of public discourse, three months later, the 9/11 Commission issued a ten-year update to its report on the 9/11 attacks and stated that al-Qaeda has expanded operations into more countries since 9/11, that the U.S. government must stay vigilant to thwart possible future terrorist attacks, and that political "leaders must do a better job of communicating with the public-including specifically explaining what is being done to prevent attacks."(fn26) The 9/11 Commission raises a noteworthy goal because government representations and media presentations of government statements contour public perceptions and formulate criminal justice system policy(fn27) and if there are no suspects arrested in conjunction with a government threat dissemination or substantial evidence of a terrorist attack that would have occurred "but for" surveillance methods, there may be no reason to believe that surveillance information was verified or actually foiled a terrorist attack or that intrusions outweigh generally-applicable privacy violations.

Punishable criminal acts have traditionally required a mens rea, or the malicious mental state to commit a crime, and the actus reus, which consists of the physical steps taken toward the commission of a punishable offense. Today, it seems that the word "plot," which in its general sense refers to "plan to or contrive especially secretly"(fn28) to engage in nefarious activity, serves as a heuristic device that cognitively conveys that both the mens rea and actus reus were met for a terrorist act or even relays a perception that lives were saved because a terrorist attack would have unquestionably occurred had there been no law enforcement intervention or indispensable surveillance provided by intelligence agencies. However, the connotation of "terror plot" conveys a much deeper perception of culpability and jeopardy than lower threshold events that are also punishable crimes.

For example, in July 2014, Human Rights Watch brought merited attention to this issue when it produced a report and accused the FBI of entrapping informants in nearly all high-profile terrorism cases, "creating terrorists out of law-abiding individuals and targeting American Muslims in the agency's counterterrorism investigations."(fn29) Discovering, frequently with surveillance and intelligence data, and scrutinizing the acts of individuals and intervening may have assisted law enforcement agencies in...