Paul Pillar

Trapping, Not Entrapping, Terrorists

In a speech earlier this month to a group of Muslim American lawyers, Attorney General Eric Holder addressed the arrest and prosecution of suspected terrorists based on FBI sting operations. Several such cases over the past couple of years have stirred some controversy; Holder alluded specifically to one involving Mohamed Osman Mohamud, accused of plotting to bomb a Christmas tree lighting event in Portland, Oregon. Critics have contended that the FBI is committing entrapment—enticing into a crime people who would not otherwise have been predisposed to commit it. Holder stated in his speech, “Those who characterize the FBI's activities in this [the Mohamud] case as ‘entrapment’ simply do not have their facts straight—or do not have a full understanding of the law.”

I believe Holder is right on both the facts and the law. Entrapment defenses have not succeeded in any terrorism cases in the United States. The FBI has been doing good, imaginative law enforcement work. But a bit more reflection is still in order. The issues involved go beyond the facts and the law and extend to the concept of what defines a terrorist.

For most governmental purposes a terrorist is anyone who has committed a terrorist act—and there are reasonably precise definitions, used by the government for other purposes, for what constitutes an act of terrorism. In many non-terrorism sting operations, the target has already very likely committed crimes before the operation was ever conceived; it’s largely a matter of catching him sufficiently red-handed to have enough evidence to mount a successful prosecution. The same cannot be said about most of the terrorism cases. Although in every such case there was something that sufficiently aroused the FBI’s suspicion for the bureau to devise the sting, that something is often threatening and hateful speech that by itself falls short of being a terrorist act. In some of these cases the suspect probably would not have committed a terrorist crime in the short term if it had not been for the sting operation.

That fact may bother some people who hold a common conception of terrorism as the operations of certain groups that we call terrorist groups, with a fairly clear division between bad guys—who get involved with such groups—and good guys. But that conception does not correspond with contemporary trends and patterns in terrorism, and especially terrorism involving persons in the United States, which is where the FBI would most directly get involved. A dominant pattern in terrorism cases over the past couple of years—and I don’t mean cases involving sting operations—is of initiative coming from the individuals rather than from groups. These are individuals clearly predisposed to kill people, maybe a lot of people, in terrorist acts. The ones who failed to kill people failed because the right combination of collaborators, material, and circumstances didn’t happen to come together.

In other words, what determines who among our midst becomes a terrorist is a function not only of predisposition but also of opportunity. Some people who have sufficient predisposition to commit terrorist acts will not do so because they do not encounter the opportunity. And some of the targets of the sting operations might not, except for the sting operation itself, commit terrorist acts either in the short term or the long term.

If that still seems bothersome, consider that the opportunity factor is a major part of some other forms of criminal behavior, including ones that have been the object of sting operations. This is probably true, for example, of corruption among elected politicians, including some cases involving members of the U.S. Congress. I expect a significant number of private U.S. citizens would be just as inclined to accept cash or other goodies in return for legislative favors as some members of Congress who have been caught doing so; they just haven’t been in position to receive any such offers. That doesn’t make it any less right to catch—including through sting operations—those members who have had the opportunities, the offers, and the inclination to indulge in graft.

Being willing to kill innocent people in a terrorist attack—even a phony contrived one—makes someone a bad guy in my book. And taking actual steps to implement an operation that one believes will kill people, even if the operation is actually phony, is enough of a terrorist act to prosecute anyone who does so. The FBI deserves our compliments for using ingenious ways to get such individuals out of circulation.