David D. Cole has considered that question. A Georgetown University law professor who specializes in constitutional law and national security, Cole has paid close attention to the terrorism sting cases that have gone before juries. In early 2011, I asked him why terrorism defendants are unable to succeed with entrapment defenses when the evidence is clear that the informant provided the means and opportunity for the crime. “I think prosecutors overwhelm juries with evidence in these cases,” Cole told me. “Jurors hear about a horrific plot to bomb the subway or a building, and they think, ‘I ride the subway,’ or, ‘My brother works in that building.’ Because the plot is so horrific, and people have memories of 9/11, the prosecution is able to overwhelm juries in such a way that prevents them from being sympathetic to an entrapment defense.”
The FBI’s success in terrorism trials has further emboldened the Bureau’s use of sting operations. As with any organization, the FBI duplicates programs that are effective, and terrorism sting operations have a near-flawless record in court. If the government’s terrorism stings were laid out on a time line, you’d see a slow start from 2002 to 2004 and then an explosion in 2005 and 2006. “Agents everywhere said, ‘Hey, this worked in New York. Let’s try it over here,’” Peter Ahearn, the former FBI agent, told me when I explained to him how the data showed that the terrorism stings spread nationwide from a modest start in Florida and New York. “That’s nothing new in the FBI. You always look at what other agents are doing. What are they doing there that we can do here?”
If the only effective measure is based on court verdicts, then terrorism sting operations have become a proven product for the Bureau. And this product carries another benefit: a terrorism sting gives the FBI, under pressure to show results, something to hold up—a dangerous terrorist caught on tape, convicted at trial, sentenced to decades in prison—as evidence to the public that it is doing its job to safeguard the United States from another attack.
8. MISSION ACCOMPLISHED
Since the U.S. Congress sets the annual budget of the Federal Bureau of Investigation, the law enforcement priorities of the Bureau are, by necessity, political in nature. In fiscal year 2011–2012, the FBI allocated more than $3 billion of its $7.8 billion budget to counterterrorism. By comparison, the FBI’s criminal division, responsible for investigating organized crime and financial fraud, among other areas, received $2.5 billion.1 More than a decade after terrorists flew commercial airplanes into the World Trade Center and the Pentagon, preventing the next attack is still the number one priority for the FBI.
To justify its counterterrorism budget, the Bureau must demonstrate to both the public and elected officials that it is preventing would-be terrorists from taking aim at the homeland, just as in the 1980s and 1990s, the FBI needed to show that it was on top of the Mafia and drug runners. The best way to demonstrate a job well done is by citing investigations that are made public through prosecutions. But what if there haven’t been many terrorists in the United States since 9/11? Or, alternatively, what if the FBI has created such a hostile environment for terrorists that none has dared strike since September 11, 2001? One of these could be true, since we haven’t had a significant terrorist attack on U.S. soil since 9/11. The former would undermine the FBI’s top priority, however, and the latter would give the FBI nothing to show to Congress to justify the money it receives for counterterrorism—no arrest and conviction numbers, no compelling narratives of deadly plots foiled.
Terrorism sting operations neatly solve this dilemma, and since 9/11, the Bureau has used them to great effect in demonstrating to Congress and the American public that it is “winning” the war on terrorism. In testimony before the Senate Judiciary Committee on January 20, 2010, FBI Director Robert Mueller specifically cited four terrorism sting cases, including the Newburgh case involving the hapless James Cromitie and his band of petty criminals, as evidence of the growing and changing terrorist threat in the United States. “This is merely a sampling of the investigations we have handled over the past year,” Mueller said.2 In fact, an extensive ten-year record exists of the FBI citing terrorism cases that seem very dangerous at first blush and then turn out to be anything but on closer inspection. Shortly after 9/11, for example, the FBI hotly pursued the so-called Lackawanna Six, a group of young Yemeni American friends living near Buffalo, New York, who had attended an Al Qaeda training camp in Afghanistan in the spring of 2001. The FBI at first portrayed the group as a sleeper cell, and in his State of the Union address on January 28, 2003, President George W. Bush mentioned the case, saying that, “We’ve broken Al Qaeda cells in Hamburg, London, Paris, as well as Buffalo, New York.”3 While it was true that members of the Lackawana Six had attended a training camp near Kandahar and one of the men reportedly met Osama bin Laden there, the only sleeper cell they could have formed would have been one in deep hibernation. In reality, the six men from Lackawanna, New York, all naturalized U.S. citizens, realized during their time at the camp that they had romanticized Al Qaeda and the terrorist life, and wanted nothing more than to return to the comforts of home. As proof of this, when the FBI was flying one of the Lackawanna Six back to the United States, the man’s only question was uniquely American: “How are the Buffalo Bills doing?”4 While the six men were convicted of providing material support to Al Qaeda, they have all since been released from prison, with the U.S. government giving three of them new identities upon their release.5 Described as terrorists by President Bush in 2003, the Lackawanna Six are now living free in the United States. They could be your neighbors.
There are many more examples of the U.S. government’s hyping terrorism cases. When the FBI and Justice Department first announced the arrests of the Liberty City Seven on June 23, 2006—a case that ultimately took three trials to win convictions against five of the seven men who, evidence showed, had no capacity to commit a crime were it not for an aggressive informant with a history of lying to government agents—the FBI held up the case as an example of how it was preventing the next deadly attack. “Today’s indictment is an important step forward in the war on terrorism here in the United States,” John Pistole, the FBI’s deputy director at the time, declared proudly during a press conference in Washington, D.C., adding:
As you know, the Department of Justice and the FBI’s highest priority is preventing another terrorist attack. And thanks to the efforts of each agent and officer who worked on this investigation together, we identified and disrupted a terrorist plot before any harm could be done. The investigation reveals outstanding work by the law enforcement community. It also reminds us that we have much more work to do.6
However, it became obvious that the government was exaggerating the strength and credibility of the Liberty City Seven when, during the same press conference, then-U.S. Attorney General Alberto Gonzales told reporters: “These individuals wish to wage a, quote, ‘full ground war’ against the United States.” Later, a reporter asked Gonzales if the group allegedly planning a ground war had any actual contacts with Al Qaeda. “The answer to that is no,” he responded. The federal government was putting before cameras the equivalent of a perp walk—a made-for-TV show that wasn’t hard to spot. At least it wasn’t for comedian Jon Stewart, who pilloried the announcement on The Daily Show three days after the press conference. “Seven guys?” he said on June 26, 2006. “I am not a general. I am not in any way affiliated with a military academy, but I believe if you are going to wage a full ground war against the United States, you will need to field at least as many people as, say, a softball team.”7
The government’s playing up of terrorism cases, which even years ago had become the butt of late-night jokes from TV comedians, should be worn out today. But it isn’t. Four years after the Liberty City Seven announcement, with a new president in the White House, the government put on the same show in announcing the arrest of Mohamed Osman Mohamud in Portland, Oregon. At first glance, the plot appeared to be dangerous and deadly, the government swooping in to stop a crazed terrorist from
killing thousands during a Christmas tree lighting ceremony. As we have seen, Mohamud was an underachieving, penniless young man whose alleged act of terrorism was only made possible by the FBI.
Despite this, Mohamud’s case has become a rallying point for the FBI. High-ranking agents I have interviewed consistently used the case as their prime example in defending terrorism sting operations. “Look at what the kid in Portland wanted to do,” J. Stephen Tidwell, the retired executive assistant director of the FBI, told me a couple of months after Mohamud’s arrest. Even as U.S. Muslim civil and religious rights groups including the Council on American-Islamic Relations and Muslim Advocates asked the government to reconsider the use of sting operations in the wake of the Mohamud case, the government remained steadfast in defense of its aggressive tactics. “Mr. Mohamud’s arrest was the result of a successful undercover operation—a critical and frequently used law enforcement tool that has helped identify and defuse public safety threats such as those posed by potential terrorists, drug dealers, and child pornographers for decades,” Attorney General Eric Holder said during a December 10, 2010, speech, less than two weeks after Mohamud’s arrest.8
The Mohamud case was among the last in a run of terrorism stings that occurred in 2010. During a November 29, 2010, press conference, a reporter asked Attorney General Holder about these cases. “Some critics say that this is another case of entrapment by the FBI in these matters,” the reporter began. “And I’m just wondering if you can address that and also discuss why these sting operations are so important at this time. This is, I think, about the fifth or sixth case—sting in the last year.” Holder held firm to the government’s line that sting cases do not result in entrapment and instead provide an effective means for identifying terrorists before they strike. “This is an investigation I have been familiar with throughout the course—throughout its course. And I am confident there is no entrapment here and no entrapment claim will prove to be successful,” Holder said. The attorney general then continued:
There were, as I said, a number of opportunities that the subject in this matter, the defendant in this matter, was given to retreat, to take a different path. He chose at every step to continue. Some of the things that were contained in the court filings that we made indicate, I think, his state of mind, where he was told that children, children, were potentially going to be harmed by what he planned to do in blowing up the Christmas tree. And you saw his response. These investigations are extremely important. It is part of a forward-leaning way in which the Justice Department, the FBI, our law enforcement partners at the state and local level are trying to find people who are bound and determined to harm Americans and American interests around the world.9
Just as the FBI and the Justice Department used sting operations and conviction numbers to demonstrate to Congress and the American public that federal law enforcement was winning the war on drugs in the 1980s and 1990s, agents and prosecutors today use terrorism stings to demonstrate the same about the war on terrorism. But the major difference—something that Holder and top officials at the Justice Department and FBI won’t acknowledge—is that while decades of data suggests that someone interested in obtaining drugs will be able to buy drugs even if not caught in a government sting, no data supports the assumption that a would-be terrorist would find the means to commit a terrorist act if not preempted by an FBI sting. To date, there has not been a single would-be terrorist in the United States who has become operational through a chance meeting with someone able to provide the means for a terrorist attack. In addition, no evidence suggests that Al Qaeda-affiliated operatives are within the United States today, willing and able to provide weapons to terrorist wannabes. In truth, the only people providing these means are undercover FBI agents and their informants, who help create the terrorists the Bureau is given more than $3 billion every year to catch.
Michael German, who spent sixteen years with the FBI infiltrating white supremacist groups, told me that funding is among the clearest predictors of results in the FBI. Simply put, if you spend more money in a specific area, you’ll get more results in that area. But that doesn’t necessarily mean that the area you’re focusing on was a problem in the first place. Now a senior policy counsel for the American Civil Liberties Union, German said the culture of the FBI is results-driven, so no matter the assignment, FBI agents can’t come up empty. “You have an enormous amount of pressure to do something,” German told me. “If you are the terrorism agent in a benign Midwestern city, and there is no terrorism problem, you don’t get to say, ‘There’s no terrorism problem here.’ You still have to have informants and produce some evidence you’re doing something.” While FBI and Justice Department officials won’t concede this point, some rank-and-file agents do. Several have told me off the record that chasing terrorists is like chasing ghosts—you’ll only see them if you’re willing to let your eyes play tricks on you. This is something that active agents won’t talk about on the record for fear of retribution, while most retired agents, with German and James Wedick among the few exceptions, remain silent due to a concern about burning bridges with former colleagues.
In the fall of 2011, however, we were offered a rare glimpse into an active agent’s criticism of the FBI’s focus on terrorism. A twenty-year Midwestern veteran of the Bureau retired, and on September 30, 2011, she sent an email to ten colleagues with the subject line “It’ll never make the Investigator,” referring to the FBI’s internal magazine for employees.10 The email itself was blank, but there was a Word document attached to it titled “Instigator.” The agent who sent the email asked me not to reveal her name or the names of the email’s recipients, but in the Word document, she described how the FBI had become “reborn as the red-headed stepchild of the intelligence community”:
The truth is, they could waterboard me and I still would not say that … the whole intel-based model of how the Bureau is expected to operate is anything more than smoke and poorly aligned mirrors. Yet another irony is that after struggling for twenty years to develop quality sources, I finally succeeded, only to be told that I’m still a failure because although my sources provide timely, pertinent, actionable information about ongoing public corruption and money laundering, they know nothing of Somali pirates or Chinese hackers.
This email was forwarded around the Bureau. One agent wrote: “Gentleman, she said it better than I could/can/ will.” Inherent in the criticism is the belief that, as a result of focusing billions of dollars on terrorism, the FBI is missing other criminals who represent greater threats to the United States than lone wolves with big mouths and inert bombs provided by informants. Just as the FBI’s executives are under pressure from Congress and the White House to show that the Bureau is combating terrorism, field supervisors are under pressure from those executives, and in turn these supervisors pressure agents to develop sources and cases related to national security—not public corruption, money laundering, organized crime, and other traditional areas of investigation for the FBI.
This is a bureaucratic phenomenon more than anything. Since terrorism represents the FBI’s best-funded area, agents bring in terrorism cases, as if on automatic pilot. Along these lines, if tomorrow the Bureau dedicated half of its resources to, say, Wyoming, the least populous state in the union would suddenly become a hotbed for crime and public corruption. Yet all the FBI agents stuck in Cheyenne and Casper would send out emails complaining about having to search for imaginary crooks in Wyoming when they’re sitting on great tips about organized crime and public corruption in New York and Los Angeles.
But just as you’d expect FBI officials to have a sense of the level of crime and corruption in Wyoming—and realize that spending billions in the Cowboy State would be a colossal waste of federal law enforcement resources—you would think that the Bureau had at least preliminary information before 9/11 that suggested how supportive U.S. Muslim communities would be of foreign terrorist organizations and whether these communities were likely to harbor terrorists.
/>
Retired FBI veteran Myron Fuller believes that none of the pre-9/11 intelligence suggested that Muslims in the United States were connected to international terrorist organizations or were supporting terrorists overseas, but that the Bureau chose to assume that that information was incorrect in the wake of the devastating terrorist attacks. In the late 1990s, Fuller was in charge of 200 FBI employees in 46 countries in Asia, including in Pakistan and Afghanistan, where he and his team uncovered information about Islamic militants who, intelligence suggested, were planning attacks in Europe. But his reports to the FBI’s Washington headquarters, like those from pre-9/11 counterterrorism section chief John O’Neill, fell on deaf ears, and nothing came of his investigations, which Fuller thinks might have led to the 9/11 attackers had the FBI and CIA been willing to support his efforts.
Fuller retired from the Bureau just before 9/11 and now lives in Honolulu, where he’s watched with a critical eye the evolution of the FBI’s counterterrorism program. He said that the billions of dollars allocated to terrorism have forced the FBI to assume that a danger exists in communities where intelligence indicates no threat is present, and sting cases are simply the Bureau’s way of justifying how it’s spending all the money it receives for counterterrorism. Fuller is certainly in a position to know about this, since one of his responsibilities for the FBI in Asia was researching links between U.S. Muslim communities and international terrorist organizations. “We’ve been observing Muslim communities in the United States for thirty, forty years,” Fuller told me when I talked to him a few months before the tenth anniversary of 9/11. “Until the ’90s nothing developed from those operations that caused people to say we’ve got a threat here.” Then came the first World Trade Center bombing in 1993. “Thereafter, we were taking a little bit stronger look at Muslim communities. Yet no one came out of that harder look. No match or link whatsoever from observing the people who lived in places like Dearborn, Michigan. Nothing ever came out of Dearborn or anywhere else that was remotely connected to the people who did what they did in 1993, or any of the attacks up to and including 9/11.” Fuller added: “It’s always been my argument that Muslim communities in the United States haven’t been supporting terrorism or sheltering terrorists in any significant way. The response to 9/11 was to use a nuclear weapon to kill a gnat. People suddenly thought that if you’re a Muslim, you’re either a terrorist or a terrorist sympathizer.”
The Terror Factory Page 18