What if…and “Fake Terror Plots” and Possible FBI Entrapment

DISCLAIMER: Yes, I am a lawyer. No, this should not be taken as legal advice or as a legal opinion. I am merely highlighting an article that involves legal topics for the purposes of exploring potential ideas for fiction. Thank you.

As detailed in an article by Paul Harris in The Guardian, some are concerned about the possibility that the FBI’s arrests of terrorist plotters might be the result of entrapment. When the FBI arrests someone, accusing them of potential terrorist acts, there is a fair amount of publicity, usually highlighting the severity and scope of the planned attacks that were prevented. Less attention is often given to the extent that sometimes the plot’s organization, funding, and weapons were provided to the suspects by the FBI or its informants.

Since the attacks of September 11, 2001, the FBI’s network of informants has grown dramatically. Some informants have criminal records. Some are paid large amounts or receive reduced sentences, which some consider an incentive to find targets where none exist. Some informants have searched widely and indiscriminately, posing as terrorist planners. This has even resulted in members of mosques reporting the informant to the FBI. Moreover, such informants have been unable to detect “lone wolf” attackers like Nidal Malik Hasan who shot 13 people at Fort Hood or Faisal Shahzad, the failed Times Square bomber.

Nevertheless, the article does point out that entrapment, as a legal defense, is very difficult to prove. If the prosecution can show that the defendant was “predisposed” towards committing the crime, the defendant cannot claim entrapment (DISCLAIMER: your jurisdiction may vary). How the prosecution demonstrates predisposition can vary, and it usually hinges on very subtle distinctions. Such subtlety may not be present in some terrorism trials, which very rarely go against the prosecution.

What if an FBI informant focused on one set of targets, completely missing a set of “real” terrorists? Would such terrorists (say, having trained in terror camps and sneaked into the US with a concrete plan), even come into contact with FBI informants, or would they stay isolated (mimicking the strategy of the lone wolf)? What if the informant was the real terrorist, ratting on others/setting up others to keep his own plans hidden?

What if a prosecutor did lose a case on an entrapment defense. The FBI agent who ran that investigation would definitely get some heat. How would that affect his next investigation? Would he be so desperate to find a “real” terrorist that he screws up in another way? Might he overlook the behavior of his informant-terrorist? What if he helped resolve his informant’s past crimes, and those crimes turned out to include elements of his terrorist plot?

What do you think of the recent terror arrests in the U.S.? Do you often ask yourself about the suspects’ predisposition? Or their ability, willingness, and funding? Let me know what you think.