Saturday, September 10, 2022

The FBI Entrapment Craze: the wrong people for the wrong reasons

There is another very good in-depth piece I came across today, talking about the FBI's facilitation of would-be radicals in order to 'catch' them. This one comes from C.J. Ciaramella at Reason, "It's (Almost) Always the Feds: How the FBI Fabricates Schemes To Entrap Would-Be Radicals". It deals with the Whitmer kidnapping plot particularly. There are (at least) two core problems with this approach: the first is that in spends enormous resources on investigating, charging, and prosecuting people, who, in the words of the author, "have little to no ability to actually carry out a terror attack." Second, however, is equally grave, that the FBI's misallocation of resources frequently ignores and misses the people who are capable and actually do carry out attacks, even when tipped off to it. The author spends most of the effort on that first problem, but we must not forget about the second. There is no difficulty in coming up with a list of assailants in recent years who fit in that latter category. Both problems undermine our self-government.

<<The FBI has typically portrayed these investigations as efforts to thwart domestic terror, but all too often, the result has been to encourage or invent plots that were unlikely to succeed. In the Whitmer case and others, the feds weren't stopping terror: They were helping bumbling defendants plan and enact it.>> ibid.

As the author develops, this is a long-standing problem:

<<The sort of informant-led investigation that resulted in the arrests of the Wolverine Watchmen is largely due to the rollback of Watergate-era restrictions on the FBI following 9/11. The Whitmer case wasn't just a poorly conceived investigation; it was the direct result of a strategic internal policy change that allowed the FBI to begin targeting people who had done nothing illegal in order to prosecute the war on terror.>> ibid.

It is also clearly non-partisan. When we are talking about post-9/11 changes, we are talking about the War on Terror under Republican George W. Bush. As Dempsey and Cole point out in "Terrorism and the Constitution" the Clinton Administration was actually responsible for cutting out many of the 1st Amendment protections in DOJ/FBI policy, but no subsequent administration of either party has restored them. Those authors also demonstrate that when these protections are not in place, the FBI frequently targets surveillance and investigation on the basis of religion or protected speech with no identified criminal nexus, frequently while letting investigations into identified criminal conduct slide to lower priorities.  [James X. Dempsey and David Cole. Terrorism and the Constitution: Sacrificing Civil Liberties In The Name Of National Security. The New Press. Scribd ed. 2005. ]

Clear, firm, and sensible rules limiting FBI conduct therefore not only protect the rights of US citizens, they promote efficient criminal investigation:

<<The FBI is at its best when it does criminal investigations. It is at its worst when it acts in a counterintelligence, monitoring mode, secretly pursuing an ethnically, religiously, or ideologically defined target without the constraints and focus of the criminal code and without the expectation that its actions will be subjected to scrutiny in the adversarial context of a public criminal trial...>> [ibid. pp 292]

To be clear, the use of informants per se and the interruption of criminal conspiracies which have not yet resulted in an attack are not the problem. There is no reason that bona fide investigation of violent conspiracies would not be compatible with the constitutional protection of fundamental rights, not for Dempsey and Cole, not as far as I understand Ciaramella, not for myself:

"Inside the United States, we favor another vision of intelligence, one rooted in the concepts of the criminal law. 'Intelligence; in this context means the collection and analysis of information about a criminal enterprise that goes beyond what is necessary to solve a particular crime...

"The FBI routinely conducts 'intelligence' operations of this second type against organized crime families and drug cartels. It does so subject to the ordinary rules of criminal procedure. The goal of such investigations is to arrest the leaders and to put them on trial for specific crimes. And one of the most important constraints on such criminal intelligence is the public trial—everything done in the name of criminal intelligence must ultimately bear scrutiny in a court of law.

"...criminal intelligence can be fully compatible with the Constitution. The First Amendment does not require the FBI to be deaf when someone advocates violence. The Constitution does not require the government to wait until a bomb goes off or even to wait until a bomb factory is brought to its attention—it does, however, require the FBI to focus its investigations on the interdiction of violence and other criminal conduct. " [Dempsey and Cole, supra, 289-291]

Without a clear focus and bright line rules, the temptation to run amok is great. Our history concretely demonstrates-- to our shame-- that the temptation is too great, that no Department of Justice, no President, whether under Republicans or Democrats, may be trusted with a blank check.

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