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In May 2016 Sajmir Alimehmeti was arrested in the Bronx and charged with providing material support to the Islamic State, along with one count of passport fraud. The authorities began their investigation of him shortly after he was denied entry to Britain on two occasions in 2014. On the second trip, British authorities searched his phone and computer to discover multiple images of the Islamic State and various attacks it had carried out. Once back in the United States, three undercover agents approached Alimehmeti, soliciting his help in leaving the United States to join the Islamic State in Syria. In the roughly nine-month period between his being approached by the agents and his arrest, Alimehmeti made numerous statements indicating his support for the terrorist group. But where does the U.S. government draw the line drawn between espousing hateful, yet legal, views and actually acting on them? And, subsequently, how do they establish legal culpability before an act of terror has been committed?
Almost all terrorism prosecutions since 9/11 have involved individuals who do not represent a genuine threat of violence.
Shortly after 9/11, then–Attorney General John Ashcroft announced a new plan for investigating and prosecuting suspected terrorists. The Department of Justice would focus on stopping terror plots before they came to fruition, instead of merely prosecuting individuals for acts of violence already committed. This shift seemed both logical and necessary. And the fear and confusion associated with acts of terror offered a compelling incentive for the government to seek to prevent them, not just punish their perpetrators after the fact.
However, the preventive approach to terrorism is deeply flawed, as very often there is nothing to prevent. According to the most recent and thorough study on the subject, around 91 percent of terrorism prosecutions since 9/11 have involved individuals who do not represent a genuine threat of violence. The government’s chief tactic is to send informants or undercover agents into Muslim communities across the country. In most cases there is no preexisting suspicion of community involvement with terrorism.
The government has specifically targeted vulnerable individuals with its use of informants. In one case an informant gave the target, a forty-year-old mentally ill panhandler named Emanuel Lutchman, forty dollars to buy a machete, ski masks, and other paraphernalia for a planned attack on a bar in Rochester, New York. When he pled guilty to conspiring to materially support the Islamic State, he was taking Zoloft and another prescription drug. His aunt commented, “I think he has serious issues. And I think he just pleaded to it because he’s sick of them harassing his family.” Soon after a federal judge sentenced him to twenty years in federal prison.
When questioned about these tactics, federal officials defend them strenuously. Everyone from Loretta Lynch to James Comey has insisted on the critical value of informants as tools of counterterrorism. The number of official informants retained by the FBI today is upwards of fifteen thousand, more than double the pre-9/11 number of six thousand. The key reason for using informants is that they lead to successful convictions. For defendants in terror cases, arguing entrapment has never served to exonerate them. This is because an entrapment defense does not question the tactic itself; instead it requires an inquiry into whether the defendant was “predisposed” to committing the crime before law enforcement got involved. Typically predisposition involves an inquiry into a defendant’s record. But in terrorism prosecutions, most defendants do not have previous terror-related convictions, and the government is permitted to use their words alone to establish predisposition. What would otherwise be constitutionally protected speech—making anti-American or pro–Islamic State remarks and viewing Islamic State videos—becomes key evidence of a predilection for terrorism.
A mentally ill panhandler, who received forty dollars from an informant, was sentenced to twenty years in federal prison.
This approach has serious drawbacks. Muslims in the United States live under a regime of constant and generalized suspicion that they are in fact terrorists, or susceptible to becoming terrorists. Going beyond mere bias, this sentiment is built into the infrastructure of federal law enforcement. Consider the list of groups designated as foreign terrorist organizations (FTOs), to which the provision of material support is criminalized. Of sixty-one groups, forty-eight are Muslim in identity or composition. Thirty-five of the thirty-eight groups added to this list since 9/11 are Islamist in ideology. This alone indicates that the United States tends to conflate Islam with terrorism. So when a Muslim defendant with no criminal record makes an argument of entrapment, the sheer force of this conflation severely dents his chances of succeeding. There is no corresponding list of domestic terrorist organizations, it should be noted.
When Muslims and their advocates protest this state of affairs, they are asked to cooperate with law enforcement to root out the terrorists among them, who almost invariably do not exist or are not known to them. The incentives for and benefits of cooperation are mixed at best. The FBI has also used strong-arm tactics to create informants within the Muslim community, such as threatening a non-citizen’s immigration status in the United States if he or she fails to work as a secret informant. As a law enforcement agency, the FBI is geared to arrest individuals with an eye toward prosecution, so the Muslim community engages the agency at its peril. When Sal Shafi, an Egyptian American executive in Silicon Valley, alerted the FBI to the activities of his son Adam, who had visited Syrian refugees in Turkey and expressed pro-Islamist sentiments, the FBI had him arrested and charged with provision of material support to an FTO. Adam’s crime was attempting to travel to Turkey, where he claimed he wanted to help refugees. Shafi had wanted the government to put Adam in a diversionary program to dissuade him from associating with extremists. The FBI’s response was to charge him, despite his father’s longstanding and voluntary cooperation. Adam now faces material support charges and a potential prison sentence of twenty years.
There are also other problems endemic to any prosecution fueled by informants. In his book The Terror Factory (2013), Trevor Aaronson cites numerous examples of informants failing to properly record conversations with defendants that might exculpate them. The reliability of an informant may only come to light well after a defendant has been convicted and sentenced. Ten years after Hamid Hayat was convicted of materially supporting an FTO, The Intercept published an investigation revealing that the informant who fueled the case, Naseem Khan, was considered so untrustworthy that his own mother referred to him as “a bagful of lies.”
In terrorism cases, constitutionally protected speech becomes key evidence against a defendant.
The FBI also adheres to a theory of “radicalization” that purports to guide law enforcement in tracking when a Muslim might turn to terrorism. In its official guide on the topic, FBI agents are instructed to consider increased religiosity, the choice to wear traditional attire, and growing a beard as markers on the road to violence. Recently the FBI developed a list of forty-eight questions as part of a scoring system to determine whether an individual should be considered a threat. The notion that a checklist can guide the pursuit of violent terrorist threats is problematic at best. But the flaws of this approach have not stopped the theory from gaining currency with the government, on a more-or-less bipartisan basis.
The government’s Countering Violent Extremism (CVE) program, developed over the last several years, also frames the terrorist threat as quintessentially Muslim. The program requires the assistance of society at large, enlisting ordinary Americans in the surveillance of Muslims at home, work, school, and places of leisure. To compound the message, authorities ask that Muslim Americans join in policing and surveilling their own communities. Recent reports indicate that Trump’s administration intends to change the focus of CVE to cover exclusively Islamist violence, even going so far as to change the program name to “Countering Islamic Extremism.”
The pivot to prevention in terrorism cases has allowed for the reintroduction and strengthening of aggressive law enforcement tactics in contexts far removed from national security. The Drug Enforcement Administration (DEA) now has eighteen thousand informants on its books. Between 2010 and 2015, they earned $237 million from the agency for their work. This army of undercover operatives has enabled the DEA to carry out sting operations at home and abroad. Undercover policing has also enjoyed a renaissance across a wide range of federal agencies, including, curiously, the Supreme Court Police and the Small Business Administration. These developments have all been inspired by the gateway drug of preventing terrorism.
What we are witnessing is the construction of a police state apparatus within the American Muslim community.
What we are witnessing is the construction of a police state apparatus within the American Muslim community, which is now riddled with informers. The courts are not likely to intervene, as numerous Supreme Court rulings over the past decades have made it clear that the police’s power to arrest is virtually limitless; that pretextual investigations are legal; and that an individual’s ability to complain about being targeted on the basis of race, religion, or political opinion is almost nonexistent. Radicalization theory, informant use, and preventive prosecution go a long way toward linking Islam with terrorism. By contrast, there is no movement to flood white communities with informants despite all-too-frequent mass shootings carried out by white men.
As we consider the anti-Muslim rhetoric, appointments, and policies of the Trump administration, we must remember that Islamophobia has been part and parcel of the War on Terror for some time. And there is no sign that this atmosphere will now change, or that the use of these tactics and programs will abate. If anything they will only increase under the new administration. The price we pay is the further marginalization of entire communities, whose place in society seems to remain contingent on the abridgment of their constitutionally protected rights, the very rights that are supposedly available to all.
Wadie Said is Professor of Law at the University of South Carolina School of Law, where he teaches courses in Criminal Law & Procedure, Immigration Law, and Counterterrorism. He is the author of Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions (OUP 2015), and a former assistant federal public defender.
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