The Terrorist Informant

JurisdictionUnited States,Federal
CitationVol. 85 No. 4
Publication year2021

THE TERRORIST INFORMANT

Wadie E. Said(fn*)

Abstract: A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant's services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.

INTRODUCTION................................................................................688

I.ENTRAPMENT: OPERATIVE LEGAL STANDARDS.............692

A.History..................................................................................692

B.Jacobson v. United States....................................................694

C.Predisposition ....................................................................... 696

II.ATTENDANT ASSUMPTIONS IN EVALUATING THE TERRORIST THREAT.................................................................698

A.Academic Commentary: The Terrorism Context................. 699

B.Attendant Assumptions: Who Is a Terrorist?.......................704

C.Law Enforcement's Cultivation and Utilization of Informants............................................................................707

1.FBI Guidelines............................................................... 708

2.FBI Tactics .................................................................... 709

III.INFORMANT USE IN TERRORISM PROSECUTIONS............712

A. History of Use in the Pre-9/11 Terrorism Prosecution.........712

1. Before the First World Trade Center Bombing in 1993............................................................................... 712

2. The First World Trade Center Bombing and Beyond.... 713 B. Post-9/11 and the Preventive Focus.....................................715

1.United States v. Siraj.....................................................715

2.United States v. Hayat...................................................718

3.United States v. Lakhani................................................720

4.The Fort Dix Prosecution...............................................722

5.Seas of David Prosecution.............................................725

6.Yassin Aref and Mohammed Hossain...........................726

7.The New York Synagogue Plot.....................................728

8.United States v. Al-Moayad: A Cautionary Tale...........729

IV. CREATING THE TERRORIST ACCORDING TO A

CONSTRUCT ................................................................................ 732

CONCLUSION .................................................................................... 738

INTRODUCTION

Terrorism-related offenses often involve individuals operating in close secrecy, a predicament that requires law enforcement officials to think creatively about the means of extracting information about a particular terrorist plot or group. This dynamic has in turn led to the increased use of confidential informants(fn1) in criminal terrorism prosecutions throughout the United States in the years following September 11, 2001 (9/11).(fn2) Several high-profile federal trials in recent years highlight the risks inherent in using an informant to make a case. These risks are particularly evident in the terrorism arena, where a complex mix of vigilance, concern for national security, ignorance, and prejudice can lead law enforcement agents and prosecutors to believe a threat exists where it does not.

A close reading of post-9/11 terrorism prosecutions demonstrates two distinct, yet interrelated, trends. First, the conduct of informants in general raises the issue of entrapment in a direct and pointed manner.

Whether a defendant intended to commit a crime or an informant actually entrapped a defendant is a legitimate query that may be difficult to answer. Second, regardless of whether an informant's conduct legally constitutes entrapment, several of the post-9/11 cases highlight situations in which the existence of any real threat to national security was questionable. Where the very existence of a threat is doubtful, it is appropriate to question the efficacy and feasibility of how informants purport to investigate suspected terrorists when their ability to discern true criminality seems subordinated to other, less altruistic concerns.

While the academic literature surrounding the use of informants in terrorism prosecutions is relatively undeveloped, any study of the relevant cases must take into account the unique context in which those cases arise. The use of confidential informants in criminal cases is nothing new.(fn3) Currently, informants are used most frequently to prosecute drug trafficking and dealing in cases that share many characteristics with terrorism investigations. In the realm of drug trafficking and dealing, confidential informants often have incentives to lie because they are paid or compensated in the form of reduced sentences, and verifying the information they provide can prove difficult at best.(fn4) Legal scholars have focused on the prevalent use of informants in drug investigations, producing a sophisticated and detailed critique of the deleterious effects of informant use on disadvantaged youth of color and the communities in which they live.(fn5)

The use of informants by law enforcement in the War on Drugs has resulted in significant abuses; these abuses are magnified in the terrorism context.(fn6) Informant recruitment occurs generally in the shadows, targeting primarily poor young men of color in America's inner cities, a traditionally underrepresented and disenfranchised group within mainstream society.(fn7) The harsh penalties that await defendants in drug cases, especially those charged with non-violent offenses, are perhaps the most unfortunate consequence of the War on Drugs.(fn8) Using informants to investigate low-level drug crime may be unfair, particularly when a defendant is facing an unusually harsh sentence, but it occurs in a time when the racial profiling of African-American or Latino youth has been generally renounced.(fn9) In the terrorism context, by contrast, the American public is anything but apathetic toward the threat of terrorism. In fact, evidence suggests that there is widespread support for or tolerance of the racial profiling of Arab- and Muslim-Americans for national security purposes.(fn10) Accordingly, certain investigative tactics seem to be consistent with this public support. For example, the Federal Bureau of Investigation (FBI) has used infiltrators and informants to monitor the workings of mosques around the country, despite no articulable suspicion linking the mosque or its congregants to violent activity.(fn11)

A reflection on terrorism prosecutions post-9/11 reveals that simply because the government invests tremendous resources in counterterrorism, law enforcement does not mean terrorism is always- or even often-occurring or being planned. While there is much we do not know about the roles informants play in most national security operations, a review of several major terrorism prosecutions paints a troubling picture of the informants' performance.(fn12) Using informants to create cases is a poor substitute for traditional investigatory techniques and can implicate a defendant's religious and political beliefs in a manner that suggests that whole communities are suspect. In evaluating the efficacy of terrorism prosecutions, an analysis of informants' roles in several high-profile cases reflects current fears and prejudices as to what characteristics constitute a terrorist. When the archetypical terrorist assumes a certain race and religion in the popular imagination, deciding whether an informant has entrapped that individual becomes a fraught exercise demanding a close look at those preconceived notions and their effect on the legal analysis in a given case.

This Article argues that using informants to generate federal terrorism prosecutions in the absence of any articulable suspicion should end because it typically leads to cases in which there is, at best, a real question about whether the defendant would have broken the law but for the informant's prodding. At worst...

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