Boston College Law Review Volume 49 Article 3 Issue 1 Number 1 1-1-2008 Entrapment and Terrorism Dru Stevenson Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the National Security Law Commons Recommended Citation Dru Stevenson, Entrapment and Terrorism, 49 B.C.L. Rev. 125 (2008), http://lawdigitalcommons.bc.edu/bclr/vol49/iss1/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. ENTRAPMENT AND TERRORISM DRU STEVENSON * Abstract: Antiterrorism is a national priority and undercover sting opera- dons are a main antiterrorism tool. As our legal system's primary device for regulating undercover stings, the scope and vigor of the entrapment defense will impact the effectiveness of antiterrorism stings. The federal courts follOw the subjective test of entrapment, focusing on whether the • defendant was predisposed to commit the crime, or if rather the govern- ment induced the defendant to breach a legal norm. This Article argues that given the difficulty of preventing terrorist acts and the civil liberties implications of intrusive surveillance—the alternative to stings—there should be a rebuttable presumption that anyone who provides material support to terrorism was predisposed to do so. This Article argues that terrorism is such a heinous crime that it is unlikely the government could induce someone to support such criminals unless the person was one of the few predisposed to do so. INTRODUCTION An increase in antiterrorism activities by the government will pre- sumably lead to a subsequent increase in cases involving the entrap- ment defense.' Terror cells or conspiracies are necessarily clandestine. * Associate Professor of Law, South Texas College of Law. The author would like to thank research assistant Jay Clendenin for his helpful contributions to this article, and fellow professors Geoff Corn, Adam Gershowitz, and Tim Zinnecker for their useful com- ments, suggestions, and encouragement. Special thanks go to Army LTC Kelly Ward and the members of the Game Theory class at the National War College, who provided an opportunity to present the ideas in this article in March 2007; their insights about the per- spectives of those involved in counterterrorism strategy were especially helpful. I See, e.g., United States v. Lakhani, 480 F.3d 171, 178-80 (3d Cir. 2007); United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007); United States v. Hale, 448 F.3d 971, 989 (7th Cir. 2006); United States v. Rahman, 189 F.3d 88, 142 (2d Cir. 1999); United States v. Polk, 118 F.3d 286, 289-91 (5th Cir. 1997); United States v. Aref, No. 04-CR-402, 2007 603508, at *4 (N.D.N.Y. Feb. 22, 2007); United States v. Siraj, 468 F. Supp. 2d 408, 413-14 (E.D.N.Y. 2007); Elgabrowny v. United States, No. S5 93 CR. 181(MBM), 2003 WL 22416167, at *10 (S.D.N.Y. Oct.. 22, 2003); United States v. Awadallah, 202 F. Supp. 2d 82, 107-08 (S.D.N.Y. 2002); United States v. Bin Laden, No. S(7) 98 CR. 1023, 2001 WL 30061, at *1-2 (S.D.N.Y. Jan. 2, 2001) (describing surveillance and capture of Al Qaeda associate); United States v. Bin Laden, 91 F. Supp. 2d 600, 613 (S.D.N.Y. 2000); see also John Caher, Terrorism Trial of Muslims Raises Issues of Entrapment, 236 N.Y.L.J., Sept. 14, 2006, at 1, 1-2; Scott Hiaasen, Did Feds Foil—or Foster—Terror Plot?, MIAMI HERALD, June 25, 2006, at A4; Brendan J. Lyons, Intent of Missile Plot Not Lost in Tanslation: FBI Case Juror Says Panel Dis- 125 126 Boston College Law Review [Vol. 49:125 Detection by law enforcement, therefore, must depend heavily on ei- ther invasive, widespread surveillance,2 or the use of undercover agents to infiltrate the cells. 3 Of course, both of these methods could be in use at the same time. Surveillance and stings are not mutually exclusive in any inherent sense and may even complement each other; neverthe- less, they are distinct alternatives for law enforcement. 4 Where agency missed Concerns that Defendants Were Duped, ALBANY TIMES UNION, Oct. 13, 2006, at Al; Wil- liam K. Rashbaum, Lawyer Confronts Informer in Subway Bomb Plot Case, N.Y. TIMES, May 5, 2006, at B2; Michelle Shepherd, Muslim Went Undercover to Save Lives, HAMILTON SPECTA- TOR (Ont., Can.), July 14, 2006, at Al2. There has also been much academic discussion of this point. See Paul Marcus, Presenting Back from the (Almost) Dead, the Entrapment Defense, 47 FLA. L. RENT. 205, 244 n.227 (1995) (discussing sting operation against Egyptian Sheik Omar Abdel Rahmen and subsequent criminal proceedings and defenses); Binny Miller, Give Them Bads Their Lives: Recognizing Client Narrative in Case Theory, 93 MICR. L. Riv. 485, 560-61 (1994); Ian Walden & Anne Flanagan, Honeypots: A Sticky Legal Landscape?, 29 RUT- GERS COMPUTER & TECH. L.J. 317, 318 (2003); see also Defending Entrapment as an Anti-Terror Technique (N.P.R. radio broadcast Mar. 11, 2007), available at 2007 WLNR 4617379 (discuss- ing the prosecutorial belief that stings are probably the best way to thwart terrorist attacks before they occur, and that entrapment defenses are a major concern). For a definitive explanation of the entrapment defense, see generally PAUL MARCUS, THE ENTRAPMENT DEFENSE (LexisNexis 3d ed. 2002) (1989). 2 See, e.g., Peter P. Swire, The System of Foreign Intelligence Surveillance Law, 72 GEO. WASH. L. REV. 1306, 1308 (2004) ("In 2003, for the first time, the number of surveillance orders issued under FISA exceeded the number of law enforcement wiretaps issued nation- wide."). See Tom Lininger, Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups, 89 lows L. REV. 1201, 1203 (2004); Solveig Singleton, Privacy and Twenty-First Cen- tury Law Enforcement: Accountability for New Techniques, 30 Onto N.U. L. REV. 417, 446-47 (2004). There are many examples of sting operations in connection with antiterrorism efforts. See Albany Muslims Convicted After Terror Sting, 236 N.Y.LJ., Oct. 11, 2006, at 1; Des- mond Butler, Sting Halts Sale of Uranium for Nuke CINCINNATI POST, Jan. 25, 2007, at A14; Julia Preston, fudge Issues Secret Ruling in Case of Two at Mosque, N.Y. TIM ES, Mar. 11, 2006, at MO ("A federal judge issued a highly unusual classified ruling yesterday, denying a motion for dismissal of a case against two leaders of an Albany mosque who are accused of laun- dering money in a federal terrorism sting operation. Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way."); Anti-War Protests in the Nation's Capital; New War Plan Derided—Part 2 (CNN television broadcast Jan. 27, 2007), available at 2007 WLNR 1722925 ("A uranium sting, officials in the former So- viet Republic of Georgia announced just this week that they have arrested a Russian man who is trying to sell weapons grade uranium to an undercover agent."); see also RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 230-31 (7th ed. 2007); Nancy S. Marder, Introduction to Secrecy in Litigation, 81 CHI.-KENT L. REV. 305, 315 n.52 (2006) (noting that many re- cords in terrorism trials have been kept secret). 4 That is, most sting operations probably occur with surreptitious surveillance going on in the background, both as a means of documenting the crime and monitoring the safety of undercover agents. Conversely, undercover agents may gather incriminating statements and information for purposes of testifying at trial, which is a form of surveil- lance; it becomes a sting when the agents actually provide an opportunity for a crime and schedule its commission. Judge Richard Posner, however, sees a significant conflict be- tween intelligence gathering and law enforcement, of which stings are an integral part, 2008] Entrapment ea' Terrorism 127 resources are limited, a shift toward one methodology typically means a shift away from the other, because each requires the investment or con- sumption of resources.5 There are also social costs of each method, apart from the direct budgetary costs of labor and overhead, which agencies may not inter- nalize; in other words, any method of law enforcement can create ex- ternalities.6 When the government uses more wide-ranging or intrusive surveillance, as it might in the War on Terror, infringements on the civil liberties of all law-abiding citizens can arise, to a greater or lesser degree.? In contrast, the use of more sting operations has less effect on civil liberties overall, even if it presents some of its own ethical or con- stitutional issues. 8 In any case, relying on more undercover operations in the War on Terror seems cheaper, politically, for government agen- cies, and such operations will presumably increase whenever terrorism becomes a priority target for law enforcement, and argues that an agency attempting to do both simultaneously will be ineffective at both. See RICHARD A. POSNER, UNCERTAIN SHIELD: THE U.S. INTELLIGENCE SYSTEM IN THE THROES OF REFORM 110-17, 135 (2006). 5 Several authors have addressed the idea of sting operations being an efficient alloca- tion of resources, and that efficiency concerns are part of the appropriate test for entrap- ment. See, e.g., Ronald J. Allen, Clarifying Entrapment, 891 GRIM. L. & CRIMINOLOGY 407, 415 (1999) ('The most fruitful criterion of government inducements is whether the inducements exceeded real world market rates ...."); J.