OPINION | "Manufacturing crimes" revisited

In the May 29, 2009, AJW editorial, I wrote about the case of four ex-convicts, all converts to Islam, who were charged with plotting to bomb synagogues in the Bronx, New York - and shoot down a military jet with a surface-to-air missile. The editorial, "Manufacturing crimes," questioned whether law enforcement authorities actually were protecting the public in cases like this one, or just inducing vulnerable and off-kilter individuals to commit crimes.

The federal court trial of the so-called Newburgh 4 ended in October, when a jury convicted the four men in the terrorism plot. An FBI informant, who spent months secretly recording conversations with the men, provided the crucial evidence for the prosecution at trial. However, defense lawyers contended that the defendants were entrapped by a wily government informant.

In reality, the bombs and missile provided by the FBI informant were duds. The defense lawyers asserted that the informant, who posed as a Pakistani terrorist, "dangled offers of money and lured impoverished men with no ties to international terrorism into a plot they could never have dreamed up on their own," according to the New York Times.

The jury endured eight days of arduous deliberations, before finally returning guilty verdicts. The Times report quoted Karen J. Greenberg, executive director of the Center on Law and Security at New York University. She observed much of the trial, and told the newspaper: "If this wasn't an entrapment case, then we're not going to see an entrapment case in a terrorism trial. We really need to think about ideology as part of entrapment. In this case, they took people who might or might not commit hate crimes, and led them along the path to jihad."

The entrapment defense is being raised again in the case of Mohamed Osman Mohamud, a 19-year-old Somali-American, who has been charged in a plot to detonate a weapon of mass destruction at a Christmas tree-lighting ceremony in Portland, Ore. As in the case of the Newburgh 4, there was no bomb; Mohamud allegedly thought that a van had been loaded with explosives and he was going to commit an act of violent jihad, detonate the "bomb" when he dialed a number on a cell phone.

In reality, Mohamud's jihadists actually were undercover FBI agents. The government agents are expected to testify that Mohamud had a "predisposition" to commit a violent act, and that they suggested alternatives to detonating a bomb.

The key word in this kind of case is "predisposition," according to Coleen Rowley, who spent nearly 24 years as an FBI agent and is now a critic of law enforcement tactics in the post-9/11 era. Rowley, who said that she was not familiar with the details of the Mohamud case, suggested that the FBI agents appeared to have done a "more solid" job of eliciting evidence that the defendant was predisposed to commit a heinous crime. "It did seem like the FBI was trying to be very careful [in the case of Mohamud]," because they were aware of the entrapment argument that could be brought in court.

Fox News commentator and syndicated columnist Susan Estrich offered a similar point of view in a recent column (which some newspapers ran under the headline "Entrapment"). She pointed out that there was no conspiracy charge in the Mohamud case, "because the only people the defendant ever conspired with were federal agents."

Estrich wrote that she did not have a problem "going after domestic terrorism one predisposed teenager at a time. But as a matter of policy, it seems frightfully inefficient." She suggested that a more fruitful use of law enforcement resources would be to find the "real bad guys, the ones who train and arm and incite these kids to violence."

In any case, according to Richard Bernstein, writing in the New York Times last week, the question of entrapment "may be largely academic, given the U.S. mood. Although the entrapment defense has been used in several terrorism cases since the attacks of Sept. 11, 2001, no juries have acquitted any defendants on the grounds that they were induced by law enforcement to undertake their criminal activities."

Bernstein added that "organizations like the American Civil Liberties Union and the National Lawyers Guild have raised questions about what some people call the government's use of 'pre-emptive prosecution' as a weapon against terrorism."

At this point, I should remind Jewish World readers that my views on the state of civil liberties in the United States are colored by my experiences during the two-year prosecution of the "RNC 8" - my son, Max, and his seven codefendants who were the alleged ringleaders of mischief and mayhem during the 2008 Republican National Convention in St. Paul. For seven months, the RNC 8 defendants bore the ignominious charge of "terrorists." Under state law, they had to defend themselves from a count of "conspiracy to commit riot in furtherance of terrorism."

Ramsey County Attorney Susan Gaertner later dropped the "terrorism" charge; and eventually completely dropped charges against three of the defendants. One defendant pleaded guilty to a gross misdemeanor charge and is serving two months in jail. Max and three of his co-defendants pleaded guilty to reduced charges in October; they received the proverbial slap-on-the-wrist: a small fine, community service and probation. So much for "terrorism."

But fear-mongering about the threat from Islamic extremists has created a mentality that seems to accept the trade of freedom for an illusory promise of security. A vast edifice of surveillance and data collection has sprung up in this country. The Washington Post's "Top Secret America" series published in July documented how some 854,000 individuals now hold top-secret security clearances. The authors, Dana Priest and William M. Arkin, concluded that this vast edifice of surveillance is "hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine."

And some aspects of the U.S. counterterrorism regime may be backfiring, actually making us less safe from violent attacks. On Sunday the Washington Post reported on the case of a suspected terrorist amid worshippers at the Islamic Center of Irvine (Calif.). It turned out that "a convicted forger named Craig Monteilh" was an FBI informant stirring things up. The paper reported that "Monteilh's mission as an informant backfired. Muslims were so alarmed by his talk of violent jihad that they obtained a restraining order against him."

Monteilh was used to build a terrorism-related case against an Irvine mosque member. That case fell apart. "Compounding the damage, Monteilh has gone public, revealing secret FBI methods and charging that his 'handlers' trained him to entrap Muslims as he infiltrated their mosques, homes and businesses," according to the Washington Post. "He is now suing the FBI."

Whether it is Somalis in Minneapolis or Muslims in other cities, such clumsy tactics are alienating members of the community who could report real threats to the authorities.

Rowley, a proponent of "community policing," contends that many Muslims now think that they are being viewed as the "enemy" by law enforcement. As a consequence, "when they truly do have something to report, they're not going to pick up the phone and call the FBI.... You're giving up and sacrificing your best sources of reliable information. You want good people to be motivated to come and tell you the truth, in the FBI."

Rowley - one of Time magazine's 2002 Persons of the Year, along with two other whistleblowers - likened the current FBI tactics to COINTELPRO, the agency's counter-intelligence program in the 1960s, which employed illegal means to destabilize and disrupt anti-Vietnam War activities, and the activities of groups like the Black Panthers and the American Indian Movement. Where Communism was once the rubric that justified anything and everything, Rowley says that the war on terror now provides similar cover for law enforcement. "We're just repeating history," she comments.

Indeed, in dismantling the liberties guaranteed under the Bill of Rights, American society is descending into treacherous territory. We have to stand up and defend our civil liberties, even as our would-be protectors profess to be acting in the interest of our common security. As Jews we must remember that barbarism can prevail when government is allowed to trample upon the rule of law.