1. OAPABA “Building Bridges” June 4, 2011

2. Counterterrorism and Civil Liberties 2 issues at issue today: (1) undercover sting operations (2) joint terrorism task forces

3. Mohamed Osman Mohamud Has been charged with attempted use of a weapon of mass destruction. Caught as a result of an undercover FBI sting operation. Lawyers appear to be setting up an entrapment defense. No Joint Terrorism Task Force in place at time of operation.

4. Undercover Sting Operations – Types of Cases Bribery Cases (e.g., ABSCAM) Child Pornography Cases Drug Cases Domestic Terrorism Cases

5. Some Domestic Terrorism Arrests Resulting from Sting Operations Yassin Aref (Albany, NY 2004) Liberty City Seven (Miami 2006) Michael Finton, 29 (Springfield, IL 2009) Hosam Maher Husein Smadi, 19 (Dallas 2009) Mohamed Osman Mohamud, 19 (Portland 2010) Antonio Martinez (Baltimore 2010) Sami Samir Hassoun, 22 (Chicago 2011) Hector Antonio Martinez-Guillen, 32 (McLean, VA 2011)

6. Legality of Sting Operations “[T]here can be no dispute that the Government may use undercover agents to enforce the law. ‘It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.’ ” - Jacobson v. United States, 503 U.S. 540 (1992) (quoting Sorrells v. United States, 287 U.S. 435 (1932))

7. Some Legal Limitations on Sting Operations Due Process Clause (entrapment) First Amendment & Equal Protection (bars selective prosecution based on speech, religion, race) U.S. Dep’t of Justice Guidelines for FBI Operations

8. Entrapment (I) “In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” - Jacobson v. United States (1992).

9. Entrapment (II) “Where the Government has induced an individual to break the law and the defense of entrapment is at issue, *** the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” - Jacobson v. United States (1992).

10. Selective Prosecution “[T]he decision to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” - United States v. Armstrong, 517 U.S. 456 (1996) (quoting Oyler v. Boles, 368 U.S. 448 (1962))

11. U.S. Dep’t of Justice Guidelines Depending on scope, duration, cost, intrusion, and other factors, undercover operations must be authorized by: (1) the Special Agent in Charge (SAC) of the office; or (2) FBI Headquarters (FBI HQ); or (3) FBI HQ’s Criminal Undercover Operations Review Committee; or (4) FBI Director, Deputy Director, or designated Assistant Director

12. Does the Law Adequately Protect Civil Liberties? Entrapment is hard to prove, and has yet to succeed in a post-9/11 terrorism case. Subjective test for entrapment lets in potentially prejudicial evidence about defendant’s past actions, statements, etc. Selective prosecution is also difficult to prove.

13. Why Use Undercover Stings Operations? No general preventative detention to incapacitate “dangerous” persons. Controlled setting to amass evidence of mens rea. Deterrent effect (a la MSNBC’s “To Catch a Predator” series) Desire to stop suspected terrorist plots before they take place.

14. Criticisms of Counterterrorism Sting Operations May be unnecessary, compared to traditional law enforcement techniques. May be counterproductive, especially if they alienate local population that would otherwise assist law enforcement. May stigmatize groups, particularly racial, ethnic and/or religious minority, that perceive themselves as being targeted.

15. Criticisms of Sting Operations(II) May be botched (e.g., undercover informant Craig Montielh in Southern California). Might chill political activists, protesters, etc. from engaging in constitutionally protected activity. Abuses and overreaching might never be discovered to be redressed. May simply be government manipulating gullible or foolish young men into committing crimes.

16. Joint Terrorism Task Forces Federal-local law enforcement collaboration for counterterrorism purposes. Specific terms set by Memorandum of Agreement (MOA). Depending on MOA, local officers might not be in the chain of command of the local police chief.

17. Advantages of JTTFs Facilitates effective sharing of information between federal and local agents. Takes advantage of the respective strengths of federal and local agents.

18. Concerns About JTTFs Local officers might violate state laws that restrict law enforcement officers more than federal law does. Critics have pointed to a history of civil rights infringements by the FBI and fear that local officers will be pressured to engage in similar conduct. Individual liberty is generally protected by diffusing power (e.g., separation of powers)