[Tarek Z. Ismail is co-author of Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions, a report co-published by Human Rights Watch and the Columbia Law School Human Rights Institute. Stay tuned to Just Security for other reactions to and analysis of the report.]

Imagine if, following the 2012 attack on the Sikh Gurudwara in Oak Creek, Wisconsin by a right-wing extremist, the government began wide-scale targeting of right-wing Christian communities in the United States. Say the FBI deployed thousands of informants into conservative churches across the country, listening to the community buzz and drumming up conversations about the perils of abortion and immigration. Those informants would then follow parishioners to right-wing political gatherings and, after sufficiently riling them up, encourage Tea Partiers to take up arms against an intransigent, overbearing government. Imagine they helped their targets develop a plot, provided them with cash, training and weaponry, and then arrested them as terrorist masterminds.

This is what the report Illusion of Justice: Human Rights Abuses in U.S. Terrorism Prosecutions documents; the FBI’s tactics in American Muslim communities have fallen along the very trajectory of this outrageous hypothetical. These tactics have proven fruitless and even counterproductive, alienating American Muslim communities and instilling fear of law enforcement instead of mutual trust.

The radicalization theory

For the better part of 15 years, the US government’s top priority has been the prevention of another terrorist attack. The government has an affirmative responsibility to do everything within its legal means to protect all of its citizens. However, these efforts have at times stretched its legal bounds. At home, law enforcement efforts have been constructing and implementing disconcerting policy based on the radicalization theory.

According to radicalization theory, violent extremists progress through particular, identifiable stages and adopt extremist beliefs that may lead them to take violent action. In recent times, the FBI and other law enforcement agencies have paid special attention to American Muslim communities through the lens of the radicalization theory. In counterterrorism surveillance, for example, law enforcement officials identified particular indicators (e.g. the espousal of certain beliefs, growing a beard, praying in a mosque at a certain time) as a basis for their concern about certain Muslims.  Law enforcement then used those indicators as triggers for investigations and, as the report shows, invasive sting operations.

While sting operations aren’t new, these particular stings raise legal concerns. In a traditional sting operation, law enforcement officials give their target an opportunity to commit a crime he or she might not have committed otherwise. Traditional stings tend to take place where there is evidence of similar past criminal activity by the target or a propensity towards committing a certain kind of crime; the sting begins at the point where the target had expressed an interest in engaging in illegal conduct. In many of the sting operations examined, informants carefully laid out an ideological basis for a proposed attack, facilitating the target’s willingness to carry out an attack before presenting the tangible opportunity to do so. In this way, the FBI may be creating terrorists out of law-abiding citizens.

Radicalization theories are based in social sciences that have been debunked or called into serious question; even federal agencies have conflicting views on their validity. Maybe more importantly, it does not draw suspicion based on a nexus to criminal conduct; it uses nebulous identifiers that correlate closely with ethnic and religious identity. Building law enforcement policy on such a theory has thereby empowered law enforcement to draw criminal inferences from innocuous or protected activity like speech, dress or religious behavior.

The result has been an investigative operation that is both over- and under-inclusive. On the one hand, applying the radicalization theory in American Muslim communities casts a net that is far too wide. In too many cases, young, vulnerable Muslims who had no means, and sometimes no intent, to carry out a plot were drawn into a sting operation resulting in arrest and indictment on criminal charges. On the other hand, focusing the radicalization theory on American Muslim communities amounts to expending limited resources in an effort to search for keys under the lamppost.

Illusion of Justice

Illusion of Justice describes a number of prosecutions that implemented “radicalization” during a sting operation. In each of the selected cases below, a government agent or informant identified a young man who expressed a controversial political or religious opinion, and implemented a sting operation based on those opinions. In no case was there an identified nexus to suspected criminal conduct.

In one case in 2009, the subject of an HBO documentary premiering this week, an FBI informant met James Cromitie, a 45 year-old African-American man, outside a mosque in Newburgh, New York. The informant, under the instruction of his FBI handler, probed Cromitie with questions about jihad and his opinions on world politics. Having heard his target’s controversial opinions, the informant continued to push, eventually offering Cromitie $250,000 to participate in a fake attack. After losing his job at Walmart, Cromitie accepted the offer.

In a 2012 case from Chicago, an FBI undercover agent began targeting Adel Daoud in an online chat room shortly after his 18th birthday. He was not a member of a terror cell, or seeking one out. Still, Daoud had questions that he posed online about Islam and jihad. The undercover online agent answered his questions, offering responses that strung Daoud along into a violent plot which he and the agent planned together. Daoud was arrested in front of a bar in downtown Chicago, having attempted to detonate a jeep full of false explosives that he drove downtown. The FBI provided Daoud with the jeep, fake explosives, and driving directions.

And in a 2004 case in New York City, a government informant targeted Matin Siraj, a Muslim teen with documented mental health problems. The informant, who met Siraj through his regular surveillance of a Bay Ridge mosque and bookstore, began by speaking with the young man about politics, and eventually showed Siraj pictures of abuse at Abu Ghraib. “There were articles and photos of children mangled or decapitated or burnt alive,” Siraj wrote to me. Over the course of a year, the informant developed a fatherly relationship with Siraj, as they developed a plot together to attack the 34th Street Herald Square subway station. Siraj never agreed to finally execute the plot, defaulting to a lookout position. He told the informant, “I have to, you know, ask my mom’s permission.”

An alternative approach

In pursuing its top priority of preventing terrorism, the US government would be best served by initiating investigations where there is an existing, articulable nexus to criminal activity. Instead, through implementation of the radicalization theory as policy, law enforcement seems to be creating terrorists just to bust them, amounting to ineffective policing and alienation of the American Muslim community.