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Posted 5/31/08
DAMNED IF THEY DO, EVEN IF THEY COULD
Pressures to make arrests distract FBI agents from pursuing worthwhile targets
For Police Issues by Julius (Jay) Wachtel. How many terrorist attacks have we had in the U.S. since September 11, 2001? None, of course. How many attempts? Hint: You can count them on the fingers of one hand, even if you bite four digits off.
That’s right, one. It was Richard Reid, aka Abdul Raheem, a British-born Jihadist who tried to blow himself up aboard an American Airlines flight from Paris to Miami in December 2001. Reid, who’s now safely tucked away in a Super-Max room-and-board, was part of a three-man European cell that intended to down airliners with shoe bombs. Fortunately, an alert flight attendant smelled smoke from Reid’s matches (fuses aren’t supposed to be lit that way, but that’s another story). So be nice to flight attendants, and be sure to flip Reid a hearty salute every time you stick your shoes in an airport tray.
Click here for the complete collection of terrorism essays
According to the good folks at FOX News there have been fourteen terrorist plots aimed at America or Americans since 9/11. Of these, only Reid’s went operational, the others being mostly comprised of wannabees who had to be talked into everything by informers. For example, in the Sears Tower plot, six Muslim men were enticed by a paid snitch to help him blow up a skyscraper and bomb FBI offices. At their second trial (the first ended in a hung jury) one defendant was acquitted outright, while jurors deadlocked on the rest. (A third trial is pending.) Then there’s the case of the Fort Dix Six, where the FBI paid another informer to convince six Muslims to agree to assault a military base. Set for trial later this year, the case drove Time magazine to strongly criticize the FBI’s habit of proceeding “almost entirely on the work of a paid informant with a criminal record.”
Essentially the problem boils down to this. At heart the FBI is a law enforcement organization. Under heavy pressure to nab terrorists, but lacking actionable intelligence and the know-how to collect and analyze it, the Bureau turned to what it knew: making criminal cases. Unable to infiltrate real terror cells with undercover agents, the FBI used informers to cajole and manipulate targets of opportunity until they did or said enough to be arrested on conspiracy charges. If it sounds like the FBI’s been making a bunch of bad “B” movies on the taxpayers’ dime you wouldn’t be far off.
Clearly not all FBI agents are happy about this. In recent testimony before the House Judiciary Committee one of the Bureau’s few native Arabic speakers criticized his agency for focusing on minor cases, thus “diverting resources from investigating more substantial threats.” Meanwhile the Senate Intelligence Committee took its own swing, accusing the Bureau’s antiterrorism program of being helplessly stuck in law-enforcement mode. Finding little progress since 2005, when the 9/11 Commission gave the FBI a “C” report card, Senators criticized it for everything from inept intelligence analysis to using specialized anti-terror groups for unrelated law enforcement tasks.
Reading between the lines it seems that Congress wants FBI terrorism investigators to stop playing policeman so they can root out terrorist threats before more buildings come tumbling down and more aircraft fall from the sky. That’s a tall order for agents who signed up to make cases, not sit in vans and listening posts for hours on end, and a nearly impossible one for an agency whose success has always been measured by numbers of arrests.
When it comes down to it, everyone wants tangible results. Hands at the Los Angeles Times are wringing over the fact that while the number of electronic surveillance warrants steeply increased, the number of terrorism cases referred for prosecution steeply decreased. According to statistics collected by TRAC, a nonprofit group at Syracuse University, the Justice Department initiated fifty percent fewer national security prosecutions in 2007 than 2002 (actual drop, from fifty cases to twenty-five). Meanwhile, refusals to prosecute have climbed from about thirty percent to more than eighty percent of referrals.
Now, some might say that this is good news, reflecting a greater depth of casework and perhaps higher prosecutorial standards. But the Times isn’t sure. “Although legal experts say they would not necessarily expect the number of prosecutions to rise along with the stepped-up surveillance, there are few other good ways to measure how well the government is progressing in keeping the country safe.”
That in a nutshell is the FBI’s dilemma. Experts inside and outside the Bureau agree that to protect the country it needs to place more emphasis on collecting intelligence and less on roping in dopes and staging show trials. But taking the high road might lead to even fewer arrests, leading politicians and the public to conclude that the Feds aren’t doing their job.
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One person got it right. Thomas Newcomb, a former national security staff member, told Congress that military action and diplomacy are more suited for defeating terrorism than going to court. “The fact that the prosecutions are down doesn't mean that the utility of these investigations is down. It suggests that these investigations may be leading to other forms of prevention and protection.” Unfortunately, prevention isn’t readily measurable while making arrests is, so that’s what the FBI feels it must keep doing even if everyone agrees it’s the wrong approach.
Incidentally, that’s precisely the reason why intelligence work should be done by a specialized agency, not by a law enforcement organization. For more on this see the postings below.
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Posted 12/15/07
MAKING TERRORISTS (PART II) -- CHANGE THE LAW!
Relaxing the standards for electronic interceptions can be a good idea
For Police Issues by Julius (Jay) Wachtel. The word on the Sears Tower “terrorist conspiracy” is in, and it’s not good for the Government. One defendant was acquitted outright and the jury hung on the others (reportedly an even split). As many predicted, the FBI’s active promotion of the crime left a few fact-finders cold. If an informer has to intercede that forcefully to get someone to step over the line, where was the threat in the first place?
Click here for the complete collection of terrorism essays
That’s what we questioned when the trial began. That the FBI persists in making questionable cases like the Sears Tower plot isn’t surprising. As a law enforcement agency they are driven by arrests and convictions. If making quality cases is tough, what gets done is numbers. That’s one reason why ferreting out terrorists should be left to intelligence agencies, who are held to completely different standards.
But we digress. Regardless of who does what, evidence must come from somewhere. Police are normally mobilized by victims, witnesses and physical evidence. In consensual crimes such as vice and narcotics victims and witnesses are unavailable, so we turn to informers, surveillance and undercover work. Police can participate in illegal transactions and collect evidence until they have a strong enough case to satisfy even the pickiest prosecutor.
Terrorism presents special challenges. Obviously, we must intercede before the crime is completed. But “real” terrorists are far less vulnerable to undercover infiltration than ordinary criminals. How else can we mobilize? One approach is to intercept wire and wireless communications. However, unlike informers, who require no judicial blessing, tapping requires that police convince a judge there is probable cause a serious crime is being planned or committed. “Probable cause” means more likely than not, a standard that’s tough to meet when bad guys are so secretive that conventional methods don’t work.
What’s the fix? Lower the standard. Yes, there is precedent. Consider the Supreme Court’s Terry doctrine, which allows police to temporarily detain persons for investigation when there is “reasonable suspicion” that a crime is being planned or has occurred. Police use this authority frequently; for example, to detain someone in the vicinity of a crime who resembles the suspect’s description. It could be possible to adopt a like standard, allowing police to intercept and “detain” communications given reasonable suspicion that at least one of the parties is promoting terrorism, under court supervision and within set time limits. If probable cause is reached then cases could proceed along a conventional track. (Incidentally, the “investigating magistrate” model is how some European countries inject the judicial system at the early stage of the evidence-gathering process.)
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If we’re happy to live under the illusion that our criminal justice system is doing just fine, and we’re comfortable with staging show trials and using informers as agents provocateurs, then no change is necessary. Any approach, no matter how flawed, is certain of success until we’re hit again.
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IF YOU CAN’T FIND A TERRORIST, MAKE ONE!
Encouraging Jihadist wannabees is the wrong approach
For Police Issues by Julius (Jay) Wachtel. One would think that the least likely person to downplay a terrorist threat would be an FBI executive. But that is exactly what Assistant FBI Director John Pistole did last year when he said that a plot to blow up Chicago’s Sears Tower offices was “more aspirational than operational.”
Click here for the complete collection of terrorism essays
Be that as it may, seven members of a bizarre Miami religious sect are finally getting their day in court, charged with conspiring to wage holy war against the U.S. The terrifying scheme did not come to light from an independent investigation but through a tip from a man whom the FBI later enlisted as an informer. For getting the motley crew to talk up a storm, drive around in a car (rented by the FBI) and take pictures (with a camera supplied by the FBI), thus fulfilling the “overt act” requirements for a conspiracy, he and another paid source reportedly walked away with more than $100,000.
Does that sound familiar? Perhaps you’re thinking of this May’s arrest of six Muslims from New Jersey and Philadelphia for allegedly conspiring to assault -- yes, Fort Dix! Again, the driving force was an FBI informer who spent months prodding the group to do something, anything besides talk about Jihad. When the dupes finally agreed to his offer to supply free machineguns (rocket-propelled grenades scared them) the FBI must have breathed a sigh of relief. Conspiracy to acquire illegal weapons -- finally, a violation! Lock ‘em up!
And let’s not forget that sting in Lodi where the FBI paid an informer more than a quarter million dollars to do everything short of driving a hapless young Muslim man to a terrorist training camp.
One must wonder...are these guys all there is?
Before international terrorism was the number one concern there was the domestic kind. During the days of the Montana Freemen and Timothy McVeigh, an undercover agent with enough weapons could have traveled the Coast-to-Coast right-wing circuit, stopping for coffee-and-ammo breaks at gun shows along the way, and made enough “conspiracy to acquire machinegun” cases to justify the salaries of every ATF agent for the next fifty years. Twenty-plus years of Federal law enforcement taught me that this great land of ours has enough disaffected bozos, and groups of bozos, to fill every prison many times over. All one needs do is get them worked up over the gripe du jour (taxes, immigration, gun control, white angst, or what-have-you), give them an opportunity and, snap! Another notch for the monthly statistical report.
We could do just that. If we’re careful to cross the t’s and dot the i’s, we might even get convictions. But as I like to ask my criminal justice students: Is this what we ought to be doing?
Considering how many angry, armed men there are (and a few women, I suppose) it seems a miracle that our country isn’t a smoldering wreck. Fortunately, that very same aspect of human nature that occasionally kills us even more frequently saves the day. It’s easy to blow one’s stack, but committing mass murder is something else again. Incidents like the Oklahoma City bombing and the Virginia Tech massacre don’t take place very often, and not because of law enforcement. These horrifying events are rare because those so inclined get distracted. Some get sane. Others lose courage, fall in love, fall out of hate, wind up in a mental hospital, get run over by a truck, take up jogging. Even the simplest barriers -- a gun purchase records check -- can be enough to discourage or frighten into sanity all but the extraordinarily committed. And for those there is always SWAT.
But wait a minute -- normal people don’t talk about waging terrorism, not even when prodded. Can we afford to ignore anyone who might even remotely pose a threat? A better question is: given the menace, can we afford to expend valuable resources on risks so tenuous that one must push targets over the line? There are likely hundreds of serious home-grown plots brewing every day. We don’t know about them because most terrorists are presumably smart enough to avoid being talked into accepting boots from strangers (like the Sears Tower Six) or having Circuit City transfer terrorist training videos to DVD (like the Fort Dix Six.)
What should be done? First, use common sense. Even if we can ultimately secure convictions, encouraging crime gobbles up scarce resources, distracting us from the real task at hand and creating a dangerous illusion of effectiveness.
Second, apply existing sanctions. Three of the Fort Dix Six are reportedly illegal aliens. Unless there are truly compelling reasons to do otherwise, I suggest that when the FBI runs across deportable persons with favorable attitudes about terrorism they kick them out of the country.
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Finally, look for system-wide solutions. Unlike other advanced nations, the U.S. insists on commingling criminal investigation and counter-terrorism, forcing the FBI to wear two hats. Rewards usually flow from producing measurable outcomes such as arrests and convictions. But serious intelligence work cannot be evaluated with numbers; indeed, such pressures can easily distort what actually takes place. We desperately need a separate intelligence agency that offers a distinct career track for counter-terrorism professionals. Unfortunately, the FBI, backed by its many friends in Congress, steadfastly refuses to yield any jurisdiction, offering feeble justifications for what is fundamentally a reluctance to lose a chunk of its empire. That too needs to change.
UPDATES
9/2/21 “We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque...and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I...” Those are the words of former FBI counter-terrorism agent Terry Albury, who was released in November 2020 after serving two years of a four-year term for sharing the Bureau’s secrets with an online journal.
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