To protect freedom, US jurists must pardon terror suspects caught by entrapment

Here’s an indecent question: Under what conditions might a husband cheat on his wife?

Imagine if a major television network created a reality show designed to answer this question. Bringing together weeks of planning, heavy surveillance, psychological profiles of the target, and a cast of young, alluring undercover agents, the show would put unwitting husbands to the ultimate test of spousal loyalty.

After being conned for weeks, some of the men would likely capitulate and take that fateful step toward betrayal. With the hook set, the lights would flash on, a banner would drop from the ceiling revealing the deception, and the show’s host, Johnnie Cochran, would climb through a window to offer his legal services in the forthcoming divorce. Perhaps the show would air as a spinoff of MTV’s gotcha program “Punk’d.”

While this idea may seem farfetched, an analogous scheme is being cooked up and served on a regular basis by the FBI in its campaign against terrorism.

According to a recent study, since 9/11, the majority of criminal convictions in high-profile terror cases in the United States relied on sting operations and informants. In some of these cases, legal experts have raised concerns over whether the agents crossed the line into entrapment, using enticements to lure penniless men and sometimes teenagers into highly sophisticated plots they never could have handled (or even dreamed of) on their own.

Entrapment is a legal defense against criminal liability when it can be shown that the person would not have committed the crime but for the inducements of the government agents. The FBI argues that these sting operations do not amount to entrapment because the people they target are predisposed to commit the offenses given the opportunity.

Legal scholars have argued that the FBI gets away with tempting people into committing crimes because the courts focus more on the defendant’s subjective “disposition” than they do on the means of persuasion or inducements provided by agents.

One defendant in a recent case, Hemant Lakhani, agreed to sell missiles to an undercover FBI agent who was posing as a terrorist. When it became clear that Mr. Lakhani had no access to such weapons, another undercover agent sold him a fake version of the arms so that he could, in turn, make the illegal sale. During the transaction, incidentally, Lakhani appeared to test the weapon by placing it on his shoulder pointed in the wrong direction. His entrapment defense failed and he received a 47-year prison sentence.

In another sting operation, the defendant, James Cromitie, was a poor African-American who had allegedly converted to Islam in prison. He agreed to carry out an attack after being offered $250,000, other valuable enticements, and weapons by the FBI's undercover informant. The judge on the case, Manhattan Federal Judge Colleen McMahon called the defendants "thugs for hire, pure and simple." She described Mr. Cromitie as "incapable of committing an act of terrorism on his own," saying a "zealous" government had "created acts of terrorism out of his fantasies...and then made those fantasies come true."

But before a jury, Cromitie’s entrapment defense, like all the others in the decade following 9/11, also failed. The ruling prompted legal experts to suggest that juries may be weighting these cases differently than other entrapment cases, given the dramatic events of 9/11 and the constant media spotlight on terrorism.

As in many of the previous cases, one of the FBI’s latest stings involved an isolated, impoverished young man. On Feb. 17, prompted by undercover officers posing as Al Qaeda members and offering the latest in high-yield explosives, Amine El Khalifi made his way to an attack site in Washington, D.C. before being swarmed by the authorities. If the previous pattern holds, he will now spend the rest of his life in prison.

Our point here is not to forgive Mr. Khalifi but rather to suggest that his behavior is not only a product of his personal disposition but also his social circumstances and the FBI’s sting operation in particular.

We recognize that the task of detecting and interrupting terrorist activities is difficult, dangerous, and at times requires sophisticated undercover operations to prevent atrocities from occurring. But the roots of terrorism – distrust, anger, and hatred – end up growing stronger in the environment the FBI is creating. Duping disgruntled citizens to act out criminally using means-justify-the-ends enticements in fact fosters the distrust and sense of injustice that breeds terrorism.

We want the US government to recognize what social scientists call “the power of the situation” to influence terrorist behavior and to stop contributing to creating it. To be frank, our hopes for this suggestion are not high. Most Americans are carrying too much emotional and historical baggage to summon even one word of situational understanding for a terrorist act.

But what about the would-be philanderers on the reality show? Without forgiving their behavior, wouldn’t most Americans at least acknowledge the extraordinary nature of the situation, and recognize that many of these cheaters would still be faithful husbands had it not been for the crafty, well-organized, sexually spectacular forces behind the deception?

If the answer is yes, a similar moral calculus must be used to evaluate the Khalifi case, the FBI’s role in creating this outcome, and the virtue of continuing these counterterrorism operations.

The success of an entrapment defense should not depend on the nature of the would-be crime, but on the nature of the FBI’s actions. Ruling in favor of a defendant like Khalifi may seem counterintuitive to any jurists wishing to protect Americans. But that’s exactly what these jurists should do if they wish to define and protect the civil liberties and freedoms that keep them safe.

Joshua Woods is author of the recently released book “Freaking Out: A Decade of Living with Terrorism.” Jim Nolan, a former police officer and FBI official, is coauthor of “The Violence of Hate: Confronting Racism, Anti Semitism, and Other Forms of Bigotry.” Both writers teach in the division of sociology and anthropology at West Virginia University.