That was Attorney General Eric Holder’s message earlier this month to Norwegian officials, promoting the use of pre-emptive prosecution to nab would-be terrorists. But there is a growing mountain of evidence that the FBI’s use of “sting” operations is actually creating terrorists out of hapless people who couldn’t even rob a candy store without expert assistance. He also suggested that Norway pass a “material support of terrorism” statute which the U.S. has used to go after people for First Amendment- protected conduct. Let’s hope the good people of Norway reject this suggestion.
We’ve written extensively about the use of informants and the material support statute and called for reining in both. While the rules guiding what informants can or cannot do when infiltrating communities have not been made public, we do know that they engage in unethical, even criminal behavior and target the most vulnerable people at the edges of society: the mentally ill, the homeless and unemployed, and the drug dependent. The deck is stacked against anyone an informant sets his or her sights on. As for material support, “the allure is easy to see,” write Jim Dempsey and David Cole in the book Terrorism and the Constitution, “convictions under the law require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. But what makes the law attractive to prosecutors – its sweeping ambit – is precisely what makes it so dangerous to civil liberties”. Combined, these two supposed counter-terrorism tools have put people who really do not pose a true terror threat into jail for extremely long sentences, and more importantly for the DOJ, they have allowed for inflated statistics on terrorism that both overstate the threat and enhance the DOJ and FBI’s record for busting terror plots. As we’ve noted, it’s pretty easy to bust a terror plot of your own creation.
A new report by Human Rights Watch (HRW) looks at the range of tactics the U.S. is using to prosecute the war on terror, including the use of informants and entrapment and the material support statute, and finds significant human rights violations. Among its many recommendations, HRW suggests “restricting the use of FBI informants in investigations and ensure they are subject to robust oversight; do not send informants into communities absent suspicion of wrongdoing,” and calls on DOJ to stop charging” people with providing material support to terrorism based on activity protected under freedom of expression principles.”
This new report joins a nice array of materials that highlight the unethical and unconstitutional use of informants to entrap vulnerable people who are targeted based on their religious or political beliefs: Tonight, HBO premiers “The Newburgh Sting,” a riveting documentary about what is perhaps the most notorious and deplorable of the FBI’s entrapment schemes. If you don’t have access to HBO, you can take a look at our comic book about the manufactured crime here. If you can’t watch The Newburg Sting on HBO (or even if you can) you can catch a new documentary on Al Jazeera that features interviews with men who have made a living as FBI informants infiltrating mosques and the Muslim community. Earlier this month, Project Salaam and the National Coalition to Protect Civil Freedoms (of which DDF is a member) issued a report, “Inventing Terrorists: the Lawfare of Preventive Prosecution” which finds that a significant number of U.S. terrorism investigations between 2001 to 2010 was in some way cooked up or assisted (and eventually “busted”) by the FBI. These reports and films focus on the use of these counter-terrorism tactics in the Arab, Middle Eastern, Muslim and South Asian communities and document the toll they have taken on individuals and those communities at large. We know that the same tactics have been used to target political activists, from environmentalists and anarchists to the Occupy movement. Our comic book on one entrapment scheme against Occupy Cleveland is available here. All of these resources document what we’ve been saying for a long time: the way the FBI uses informants is unfair, unethical and unconstitutional. It ruins lives, hurts communities and doesn’t do a thing to protect us from real terrorism.