Sting Operations and Counterterrorism: What’s Really at Stake?

Attorney General Eric Holder was in Europe last week, touting the virtues of American-style counter-terrorism, including the prominent use of stings operations against would-be terrorists. According to the New York Times, Holder’s remarks were offered against a backdrop of deepening fears in European capitals about the potential for veterans of the ongoing hostilities in Syria returning home and deploying their battle-tested techniques against civilian populations. Rather than wait for hardened terrorists to acquire training overseas, Holder offered, better to thwart them preemptively by engaging in sting operations that target individuals aiming to fight in Syria in the first place.

That stings would achieve prominence in American counter-terrorism is unsurprising. For one thing, as experts in comparative criminal law like Jackie Ross have shown, American prosecutors are generally more bullish on stings than European counterparts, who, for reasons of law and institutional culture, regard them with skepticism. For another, the domestic terror threat in parts of Europe is significantly more developed than in the United States. There are now approximately 3,000 European passport holders fighting in Syria and Iraq. In the time that it took Najibullah Zazi to drive from Denver to New York, a fighter could drive from Aleppo to Budapest. What that means is that European officials are relatively more consumed than American counterparts in keeping up with, and tabs on, trained militants.   Orchestrating American-style sting operations is, in a sense, a luxury they cannot afford.

But for all that American counter-terrorism officials employ and champion stings, their use has generated significant pushback from certain civil libertarians. In books and reports, commentators and advocates have questioned the utility and morality of these operations, and advocated for more robust application of entrapment defenses.   As of this week, Human Rights Watch and the Columbia Law School Human Rights Institute have entered the conversation with their jointly published Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions.   (The report actually discusses a host of issues at the intersection of criminal justice and American counter-terrorism but my focus in this post is on the issue of stings).

Like the previous critical treatments of the issues, the report levels a powerful charge against the government: Officials, when they engage in counter-terrorism stings, are solving a problem of their own creation, turning teenage losers into would-be terrorists and then congratulating themselves when the bogus bombs agents have supplied don’t blow up. Indeed, the report contends that stings undermine security, by alienating potentially cooperative Muslim community members who increasingly regard the police and prosecutors with suspicion and are therefore less minded to collaborate in the overall maintenance of security.

But for all the important questions about official practices that critics raise, they have tended to ignore some hard questions about the use of stings and the tradeoffs they entail. Instead, their interventions have an exaggerated, one-dimensional quality to them. This is a shame, because what we need is a rich and textured conversation about the efficacy of counter-terrorism stings. Among the questions we ought to be considering are these:

First, are there national security benefits to the stings separate and apart from their value (vel non) in incapacitating the arrestees themselves? Consider the possibility that a sting might send a deterrent message to would-be terrorists. So-called “deterrence-by-denial” – the communication of a threat not of punishment but of potential failure – is an increasingly recognized dimension of mature counter-terrorism.   Might the arrest and prosecution of a would-be terrorist cause more promising terrorists to wonder whether their co-conspirators are government agents? That the arrestees in sting operations have tended to be young men who do not exude operational brilliance is not necessarily dispositive. On 9/11, there was really only one highly capable operator involved: Mohamed Atta. The individuals targeted in stings might be every bit as vulnerable to an influential terrorist operator as they are to an FBI undercover agent.

Second, is there an inevitable tradeoff between stings and surveillance?   At risk of oversimplification, everyone agrees that an after-the-fact approach to counter-terrorism is strategically misguided. What divides the U.S. and Europe is chiefly their disparate assessments of how the government ought to proceed preemptively. And here, notwithstanding the irony of how the issue has played out in the aftermath of Snowden, the answer is fairly clear: Europeans rely extensively on intelligence gathering carried out by their well-developed domestic intelligence agencies. Meanwhile, the U.S. relies on preemptive interventions of one sort or another. In the context of domestic counter-terrorism prosecutions, this has meant greater reliance on sting operations. This state of affairs is connected in to an institutional reality.   Domestic counter-terrorism in the U.S. is practiced by a federal police force, and as much as the FBI has attempted to assume the responsibilities of a domestic intelligence agency, its powerful law-enforcement culture inevitably shapes its mission. Stings are a natural outgrowth. In Europe, meanwhile, domestic intelligence agencies are prominent actors in counter-terrorism, so a surveillance approach is favored. So, in important respects, the choice may boil down to whether we want more domestic surveillance in the United States or more sting operations.

This leads to a third question. Are the critics of counter-terrorism stings really railing against the American way of criminal justice? Sting operations and harsh jail terms, are a mainstay of drug prosecutions – and there are a lot more of those than counter-terrorism stings. This is in no way to diminish or blunt the criticism. But it is to suggest that it might be more fruitfully pitched at the appropriate level of generality and directed at prosecutions as such, rather than counter-terrorism prosecutions.

Sting operations are not strategically costless. Beginning with the opportunity costs for the investigators and prosecutors, moving on down to the costs of potentially disclosing the identity of undercover agents, and of course contemplating the toll these operations might take in greater friction between Muslim communities and law enforcement (with its attendant losses of the fruits of their cooperation) — the price is potentially significant. Illusion of Justice serves as useful reminder that these costs (and others) need to be carefully tallied.   But a more comprehensive assessment of the overall strategic benefits of counter-terrorism stings, measured against those costs, awaits another day. 

About the Author(s)

Samuel J. Rascoff

Associate Professor of Law and Faculty Director of the Center on Law and Security at NYU School of Law