The Problems with Counterterrorism Stings: A Response to Samuel Rascoff

[Editor’s note: Don’t miss, Samuel Rascoff’s rejoinder to David Cole’s post, which was subsequently published here on Just Security.] 

In his guest post yesterday, NYU Law Professor (and former director of intelligence analysis for the NYPD) Samuel Rascoff defends the US’s use of sting operations as a counterterrorism tool on three grounds: (1) even if we may have entrapped some individuals who would never have committed a terrorist offense, such initiatives have a deterrent effect on others; (2) if we had fewer sting operations, we might well have more intrusive surveillance, because the state needs some way to identify and disrupt potential threats; and (3) sting operations are not unique to counterterrorism operations, but a central feature of criminal law enforcement more generally, and especially in the war on drugs. Each of Rascoff’s points is well-taken, but I don’t think they add up to a defense of the kind of sting operations the United States has let loose on its Muslim communities.

Even if we granted Rascoff’s three points, would that justify these cases, which I write about in an article on the New Yorker website, which was in turn based on an extensive, and damning Human Rights Watch report on the many abuses of “preventive” terrorism prosecutions targeted against the American Muslim community:

The judge hearing the trial of four men accused of conspiring to set off explosives at two synagogues in the Bronx found that a government informant “came up with the crime, provided the means, and removed all relevant obstacles” for the accused. The informant went so far as to offer the group’s “leader,” a cash-strapped former Walmart employee, two hundred and fifty thousand dollars to complete the crime. Yet, because of mandatory minimum sentences, all four defendants are serving twenty-five-year prison terms.

Over a nine-month period, an informant convinced Rezwan Ferdaus, a mentally disturbed young man with no prior convictions, to participate in a plan to bomb the Pentagon with remote-controlled airplanes. At the time of his arrest, Ferdaus was being treated for mental illness and wearing diapers because he could not control his bowels. There was no evidence that he had even contemplated, much less engaged in, any violence before the informant contacted him. He is serving a seventeen-year sentence.

It may well be the case that by targeting these hapless young men and coaxing or bribing them into agreeing to do stupid things, some other individuals who pose a real threat will be deterred. But is such an instrumental justification really an acceptable rationale for locking up mentally ill and desperate people for approximately two decades? That it might “send a message” to someone who may or may not be out there, may or may not be considering a terrorist attack, and may or may not be deterred by the fact that others have been harshly punished for crimes they never would have committed had they not been approached, befriended, and cajoled by overzealous informants?

Moreover, while it is conceivable that a reduction in stings will lead to an increase in surveillance, it’s by no means necessarily the case. The more general point is that the government has limited tools for identifying potential threats, so if we reduce its reliance on one tool, it may take up another. But of course, surveillance and stings are not the only ways to identify potential threats. Another is to develop good relations with the community, so that if a threat were to arise, witnesses will be likely to report it to the authorities. But of course, if the community sees law enforcement targeting some of its most vulnerable members and ginning up false charges against them by getting them to agree to fake plots that they would never have taken on if left alone, the community is going to be much less forthcoming in approaching law enforcement about questionable conduct in its midst. Moreover, all surveillance is not equal. Some forms of surveillance, including, for example, observations of public events, reading websites, and the like, are far less intrusive than, say, tapping someone’s phone or reading his email. So it’s hardly a defense of entrapment to say that if we can’t entrap, we’ll surveil.

Finally, Rascoff is surely correct that sting operations pervade other aspects of US policing. But again, that doesn’t justify them. There are also plenty of problematic accounts of stings in the drug interdiction field. But there is a difference. In a drug case, it’s at least conceivable that the entrapment defense will impose some constraint on police. In the terrorism field, it provides no meaningful constraint. Here’s why:

Under federal law, an entrapment defense requires the defendant to convince a jury that he was not “predisposed” to commit the crime that he was cajoled into committing by federal agents. This requires a juror to put himself in the defendant’s shoes and think, “if the government did all of that to me, I, too, might have committed this crime, even though I’m not predisposed to do so.” The entrapment defense is notoriously difficult to prevail upon under any circumstances, but the more serious the crime charged, the less likely a juror will ever accept that anyone not predisposed to commit the crime would in fact take the bait. It might be conceivable that one could be convinced to buy or sell drugs even if not predisposed. (Recall the DC jury’s refusal to find Mayor Marion Barry guilty of smoking crack cocaine when an informant used the promise of sex to get him to do so on video camera). But would someone not predisposed ever conspire to engage in terrorism? No way. Especially when you add in the fear sparked by terrorism, and the stereotypes that associate Muslims with terrorism in the public mind. As a result, the entrapment defense imposes no meaningful constraint on sting operations in counterterrorism prosections. And we send Rezwan Ferdaus to prison for 17 and ½ years.

To be sure, Rascoff is correct that one cannot write off sting operations altogether. They are a valuable tool of law enforcement. But the accounts in the HRW report suggest that this tool has been used overly aggressively in the Muslim communities, resulting in unjust convictions and widespread distrust of law enforcement. We can and should do better. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).