Shortly after Sept. 11, 2001, FBI Director Robert Mueller issued a memo to his field offices detailing "one set of priorities" for the agency: Stop the next terrorist attack. This directive marked a new "preemptive" style of law enforcement that has since become the hallmark of our domestic front in the war against terrorism.
Under this system, catching an actual terrorist would constitute a failure because the perpetrators would have committed the act. Instead, we are in effect seeking "pre-terrorists" — individuals whose intentions, more than their actions, constitute the primary threat.
Taking stock of the major "terrorist" prosecutions that this approach has yielded, however, it's not at all clear we're safer from another attack.
The government's marquee post-9/11 terrorism investigations, including cases such as the Miami Seven, the Ft. Dix Six and last year's Portland Christmas Tree Bomber, have not involved real attacks but, rather, have been sting operations involving plots invented by law enforcement. New York University's Center on Law and Security, which tracks federal terrorism prosecutions, reports that since 2009, the FBI has escalated its use of stings in which a confidential informant or undercover officer approaches a suspect and "assists him in the planning of an attempted terror crime."
The defendants in these plots, most of them male Muslim immigrants with no history of terrorism or violence, have become unwitting actors in a disturbing theatrical performance: The FBI scripts the plot and provides the weapons, along with money, cars and any other logistical support needed to carry out the "attack."
These cases are pursued through lengthy sting operations on the premise that by presenting a potential suspect with the opportunity to commit a crime, true bad guys will take the bait.
But terrorism stings go much further than presenting a likely bad guy with a passing criminal opportunity. The operations last for months and sometimes years, with suspects offered all manner of enticements to participate in a plot they probably would never have come up with on their own. In a case in Chicago last year, for example, the FBI instructed informants to pay a suspect to quit his day job so he could focus on jihad.
To aid them in their efforts, the FBI has deployed paid undercover informants throughout the nation's Muslim community, particularly in mosques. These informants often act as agents provocateur. At a mosque in California in 2007, for example, one such FBI informant, Craig Monteilh, who says he was paid $177,000 for his services, talked so vigorously about jihad that the mosque sought and received a restraining order against him.
In another high-profile case known as the Newburgh Four — four African American Muslim converts convicted last year of attempting to bomb a synagogue and a Jewish community center and to shoot down military planes — an FBI informant promised the defendants, among other enticements, a BMW and $250,000 to carry out the attack. The details of the plot were choreographed in such detail that the presiding judge in the case chastised the government for its "decidedly troubling" tactics and concluded that the defendants would never have committed the attacks on their own.
"The government made them terrorists," she said in delivering the minimum sentence for one of the defendants Sept. 7.
Such aggressive tactics are permissible in part thanks to a post-9/11 loosening of rules governing FBI investigations. The burden of proof required to launch an investigation has been lowered so that agents no longer have to demonstrate a "predicate" or reason for the investigation, in effect giving the agency the power to spy on whomever it wishes, for however long it wishes, even if that individual is not suspected of any particular crime. The Obama administration has defended its terrorism stings, which Atty. Gen. Eric H. Holder Jr. last year called an "essential law enforcement tool."
Although terror plots staged by the FBI may have succeeded in rooting out individuals willing to commit crimes given the proper enticements, this is not the same thing as preventing an actual terrorist attack. Nevertheless, the government's sting operations, however dubious, serve to justify the vast and expanding homeland security apparatus. A recent investigation by The Times found that federal and state law enforcement agencies now spend $75 billion a year on domestic security.
But is the expense and effort making us safer? On the contrary, actual terrorist attacks have been averted not because of enhanced law enforcement but the perpetrators' incompetence and, sometimes, the efforts of regular citizens. The 2002 shoe bomber, Richard Reid; the 2009 underwear bomber, Umar Farouk Abdulmutallab; and the 2010 Times Square bomber, Faisal Shahzad, were thwarted primarily because their devices failed to detonate.