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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.

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But before a jury, Cromitie’s entrapment defense, like all the others in the decade following 9/11, also failed. The ruling prompted legal experts to suggest that juries may be weighting these cases differently than other entrapment cases, given the dramatic events of 9/11 and the constant media spotlight on terrorism.

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As in many of the previous cases, one of the FBI’s latest stings involved an isolated, impoverished young man. On Feb. 17, prompted by undercover officers posing as Al Qaeda members and offering the latest in high-yield explosives, Amine El Khalifi made his way to an attack site in Washington, D.C. before being swarmed by the authorities. If the previous pattern holds, he will now spend the rest of his life in prison.

Our point here is not to forgive Mr. Khalifi but rather to suggest that his behavior is not only a product of his personal disposition but also his social circumstances and the FBI’s sting operation in particular.

We recognize that the task of detecting and interrupting terrorist activities is difficult, dangerous, and at times requires sophisticated undercover operations to prevent atrocities from occurring. But the roots of terrorism – distrust, anger, and hatred – end up growing stronger in the environment the FBI is creating. Duping disgruntled citizens to act out criminally using means-justify-the-ends enticements in fact fosters the distrust and sense of injustice that breeds terrorism.

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. To be frank, our hopes for this suggestion are not high. Most Americans are carrying too much emotional and historical baggage to summon even one word of situational understanding for a terrorist act.

But what about the would-be philanderers on the reality show? Without forgiving their behavior, wouldn’t most Americans at least acknowledge the extraordinary nature of the situation, and recognize that many of these cheaters would still be faithful husbands had it not been for the crafty, well-organized, sexually spectacular forces behind the deception?

If the answer is yes, a similar moral calculus must be used to evaluate the Khalifi case, the FBI’s role in creating this outcome, and the virtue of continuing these counterterrorism operations.

The success of an entrapment defense should not depend on the nature of the would-be crime, but on the nature of the FBI’s actions. Ruling in favor of a defendant like Khalifi may seem counterintuitive to any jurists wishing to protect Americans. But that’s exactly what these jurists should do if they wish to define and protect the civil liberties and freedoms that keep them safe.

Joshua Woods is author of the recently released book “Freaking Out: A Decade of Living with Terrorism.” Jim Nolan, a former police officer and FBI official, is coauthor of “The Violence of Hate: Confronting Racism, Anti Semitism, and Other Forms of Bigotry.” Both writers teach in the division of sociology and anthropology at West Virginia University.


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