on findingsStudent entries

The fine line between informants and instigators: a look into entrapment in terrorism cases


This continues our series of student reflections and analysis authored by our research team.


Getting involved in the Prosecution Project has been an incredible learning experience in research, data analysis, critical problem solving and decision making skills. During my research, I’ve become more and more fascinated in the cases where accused terrorists believed themselves to be part of a movement, or even worse, were forcibly taken from their daily lives and imprisoned, at the urging and manipulation of law enforcement officers. The federal government has been involved in elaborate schemes designed to “catch” would-be terrorists or spotlighting activities that would appear harmless if done by what America would consider to be an “average American citizen”. I’m intrigued by the how the Federal Bureau of Investigation chooses to use informants, how often entrapment really occurs in terrorism cases, and what the implications are going forward.

According to Wadie E. Said’s article, The Terrorist Informant, the Federal Bureau of Investigation is bound by certain conditions and practices regarding informants before the authorization of undercover investigations is possible. One of the main factors that must be considered is whether the target has any predisposition to commit a crime. Federal agents have the task of deciding the likelihood of criminal behavior to occur, a task that should be approached as objectively as possible. Unfortunately, human nature favors prejudice by instilling us with personal biases. The stigma surrounding Arabs and Muslims since September 2001 has resulted in increased FBI prevention efforts and controversial tactics intended to catch terrorists before attacks occur. Specifically, Said mentions the placing of undercover agents and surveillance of mosques. This tactic seems wildly outlandish given the seriousness with which we take our first amendment rights of free expression and religion. Yet the practice still occurs, creating room for the implication that the federal government believes there to be a strong connection between the islamic faith and international terrorism. The entrapment doctrine is in place to lead federal agents away from seeing terroristic activity or intent where there is none. The point of the doctrine is to focus on the conduct of law enforcement rather than only the acts of the suspect. According to Said, an entrapment defense has never been successful in exonerating a terrorism suspect in the U.S. Supreme Court.

Since September 2001, informants have played a fairly significant role in terrorism prosecutions. Many of the cases in tPP’s dataset involve the use of informants in gathering intelligence and providing incriminating evidence of suspects. My main concern is how many of these accused terrorists were either coerced into participation or had motives and intentions forced upon them. This, of course, may be an impossible task since there is no reasonable way of knowing the absolute truth. However, scholars Jesse J. Norris and Hanna Grol-Prokopczyk published a journal article in 2016 titled Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases that provides extensive research and data analysis on the subject. In their studies on specific cases, they admit that the involvement of informants obviously muddies up the scope of involvement and the seriousness of potential terror plots. From their conclusions, it appears that a majority amount of defendants they analyzed were unlikely to have been involved in true terrorism in the legal definition. Given the volume of terrorism prosecutions since 9/11, the implications of this result could be serious for numerous imprisoned individuals. Norris and Grol-Prokopczyk acknowledge the limitations of their study in that it’s impossible to say who would or would not have eventually committed crimes without the push of an informant. That may be the most concerning part, if we are unable to discern the truth from the all the mud, how can we prevent entrapment?

– Katie Reilly


Sources:

NORRIS, J. J., & GROL-PROKOPCZYK, H. (2016). Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases. Journal of Criminal Law & Criminology, 105(3), 609–677.

Said, W. E. (2010). The Terrorist Informant. Washington Law Review, 85(4), 687–738.

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