Domestic Counterterrorism, Joint Terrorism Task Forces, and Civil Liberties

OAPABA “Building Bridges”June 4, 2011

Counterterrorism and Civil Liberties2 issues at issue today:(1) undercover sting operations(2) joint terrorism task forces

Mohamed Osman MohamudHas been charged with attempted use of a weapon of mass destruction.

Caught as a result of an undercover FBI sting operation.

Lawyers appear to be setting up an entrapment defense.

No Joint Terrorism Task Force in place at time of operation.

Undercover Sting Operations – Types of CasesBribery Cases (e.g., ABSCAM)Child Pornography CasesDrug CasesDomestic Terrorism Cases

Some Domestic Terrorism Arrests Resulting from Sting OperationsYassin Aref (Albany, NY 2004)Liberty City Seven (Miami 2006)Michael Finton, 29 (Springfield, IL 2009)Hosam Maher Husein Smadi, 19 (Dallas

2009)Mohamed Osman Mohamud, 19 (Portland

2010)Antonio Martinez (Baltimore 2010)Sami Samir Hassoun, 22 (Chicago 2011)Hector Antonio Martinez-Guillen, 32

(McLean, VA 2011)

Legality of Sting Operations“[T]here can be no dispute that the

Government may use undercover agents to enforce the law. ‘It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.’ ”

- Jacobson v. United States, 503 U.S. 540 (1992) (quoting Sorrells v. United States, 287 U.S. 435 (1932))

Some Legal Limitations on Sting OperationsDue Process Clause (entrapment)First Amendment & Equal Protection (bars

selective prosecution based on speech, religion, race)

U.S. Dep’t of Justice Guidelines for FBI Operations

Entrapment (I)“In their zeal to enforce the law, however,

Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”

- Jacobson v. United States (1992).

Entrapment (II)“Where the Government has induced an

individual to break the law and the defense of entrapment is at issue, *** the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”

- Jacobson v. United States (1992).

Selective Prosecution“[T]he decision to prosecute may not be

based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ”

- United States v. Armstrong, 517 U.S. 456 (1996) (quoting Oyler v. Boles, 368 U.S. 448 (1962))

U.S. Dep’t of Justice GuidelinesDepending on scope, duration, cost,

intrusion, and other factors, undercover operations must be authorized by:

(1) the Special Agent in Charge (SAC) of the office; or

(2) FBI Headquarters (FBI HQ); or(3) FBI HQ’s Criminal Undercover Operations

Review Committee; or(4) FBI Director, Deputy Director, or

designated Assistant Director

Does the Law Adequately Protect Civil Liberties?Entrapment is hard to prove, and has yet to

succeed in a post-9/11 terrorism case.Subjective test for entrapment lets in

potentially prejudicial evidence about defendant’s past actions, statements, etc.

Selective prosecution is also difficult to prove.

Why Use Undercover Stings Operations?No general preventative detention to

incapacitate “dangerous” persons.Controlled setting to amass evidence of mens

rea.Deterrent effect (a la MSNBC’s “To Catch a

Predator” series)Desire to stop suspected terrorist plots

before they take place.

Criticisms of Counterterrorism Sting OperationsMay be unnecessary, compared to traditional

law enforcement techniques.May be counterproductive, especially if they

alienate local population that would otherwise assist law enforcement.

May stigmatize groups, particularly racial, ethnic and/or religious minority, that perceive themselves as being targeted.

Criticisms of Sting Operations(II)May be botched (e.g., undercover informant

Craig Montielh in Southern California).Might chill political activists, protesters, etc.

from engaging in constitutionally protected activity.

Abuses and overreaching might never be discovered to be redressed.

May simply be government manipulating gullible or foolish young men into committing crimes.

Joint Terrorism Task ForcesFederal-local law enforcement collaboration

for counterterrorism purposes.Specific terms set by Memorandum of

Agreement (MOA).Depending on MOA, local officers might not

be in the chain of command of the local police chief.

Advantages of JTTFsFacilitates effective sharing of information

between federal and local agents.Takes advantage of the respective strengths

of federal and local agents.

Concerns About JTTFsLocal officers might violate state laws that

restrict law enforcement officers more than federal law does.

Critics have pointed to a history of civil rights infringements by the FBI and fear that local officers will be pressured to engage in similar conduct.

Individual liberty is generally protected by diffusing power (e.g., separation of powers)