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Opinion

To protect freedom, US jurists must pardon terror suspects caught by entrapment

Since 9/11, the majority of criminal convictions in high-profile terror cases in the US relied on sting operations. In many, the FBI crossed the line into entrapment, luring penniless men and teenagers into sophisticated plots they never could have dreamed of on their own.

By Joshua Woods and Jim Nolan / April 5, 2012

Terror suspect Amine El Khalifi appears before US District Judge T. Rawles Jones Jr. in federal court in Alexandria, Va in this Feb. 17 artist rendering. Op-ed contributors Joshua Woods and Jim Nolan argue the FBI sting operation that captured Mr. Khalifi is akin to entrapment. They say: 'We want the US government to recognize what social scientists call “the power of the situation” to influence terrorist behavior and to stop contributing to creating it.'

Dana Verkouteren/AP/file

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Morgantown, W.V.

Here’s an indecent question: Under what conditions might a husband cheat on his wife?

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Imagine if a major television network created a reality show designed to answer this question. Bringing together weeks of planning, heavy surveillance, psychological profiles of the target, and a cast of young, alluring undercover agents, the show would put unwitting husbands to the ultimate test of spousal loyalty.

After being conned for weeks, some of the men would likely capitulate and take that fateful step toward betrayal. With the hook set, the lights would flash on, a banner would drop from the ceiling revealing the deception, and the show’s host, Johnnie Cochran, would climb through a window to offer his legal services in the forthcoming divorce. Perhaps the show would air as a spinoff of MTV’s gotcha program “Punk’d.”

While this idea may seem farfetched, an analogous scheme is being cooked up and served on a regular basis by the FBI in its campaign against terrorism.

According to a recent study, since 9/11, the majority of criminal convictions in high-profile terror cases in the United States relied on sting operations and informants. In some of these cases, legal experts have raised concerns over whether the agents crossed the line into entrapment, using enticements to lure penniless men and sometimes teenagers into highly sophisticated plots they never could have handled (or even dreamed of) on their own.

Entrapment is a legal defense against criminal liability when it can be shown that the person would not have committed the crime but for the inducements of the government agents. The FBI argues that these sting operations do not amount to entrapment because the people they target are predisposed to commit the offenses given the opportunity.

Legal scholars have argued that the FBI gets away with tempting people into committing crimes because the courts focus more on the defendant’s subjective “disposition” than they do on the means of persuasion or inducements provided by agents.

One defendant in a recent case, Hemant Lakhani, agreed to sell missiles to an undercover FBI agent who was posing as a terrorist. When it became clear that Mr. Lakhani had no access to such weapons, another undercover agent sold him a fake version of the arms so that he could, in turn, make the illegal sale. During the transaction, incidentally, Lakhani appeared to test the weapon by placing it on his shoulder pointed in the wrong direction. His entrapment defense failed and he received a 47-year prison sentence.

In another sting operation, the defendant, James Cromitie, was a poor African-American who had allegedly converted to Islam in prison. He agreed to carry out an attack after being offered $250,000, other valuable enticements, and weapons by the FBI's undercover informant. The judge on the case, Manhattan Federal Judge Colleen McMahon called the defendants "thugs for hire, pure and simple." She described Mr. Cromitie as "incapable of committing an act of terrorism on his own," saying a "zealous" government had "created acts of terrorism out of his fantasies...and then made those fantasies come true."

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