Oct. 19 (Bloomberg) -- When Mario Buda blew up the first car bomb, in 1920 in front of the U.S. Sub-Treasury on Wall Street, he had something in common with Quazi Mohammad Rezwanul Ahsan Nafis, who is accused of trying to do more or less the same thing this week in front of the New York Federal Reserve building a few blocks away: Both wanted to harm the U.S. through a symbol of its financial center.
There was also a big difference. Buda, who escaped to Italy and was never brought to justice, belonged to an extended ring of anarchists who planned and executed terrorist attacks including the spectacular seven-city midnight attacks in June 1919. Nafis, on the other hand, hoped to connect himself to al-Qaeda, yet was acting almost in isolation -- except for the Federal Bureau of Investigation and New York Police Department agents who had set him up, strung him along and given him his 1,000 pound fake bomb. In plain English, Nafis was a patsy.
Should we care? Since 2004, the most impressive visible domestic victories against terrorism have involved elaborate sting operations. (Faisal Shahzad, who set a car bomb in New York’s Times Square, would have succeeded if two street vendors hadn’t noticed smoke coming from the car.) Since Congress closed domestic courts to prosecutions of terrorists held in Guantanamo Bay, Cuba, all the high-profile terror convictions in U.S. courts have come from setup operations except for Shahzad.
Of course, it is conceivable that other, genuine domestic terror operations have been thwarted without arrests being made -- but outside the realm of “Homeland” or “24,” such a scenario is highly unlikely. The value of a public conviction is too high for law enforcement to pass up. More to the point, the risk of letting a would-be terrorist walk around freely is too great for law enforcement to take.
The upshot is that our domestic anti-terror system has been reduced to a series of sting operations. Those who have gotten through the cracks, such as Army Major Nidal Hasan, who is accused of killing 13 at Fort Hood in 2009, acted alone and remained undetected. Unless you believe that the people caught in stings were going to commit acts of terror on their own, it’s hard to escape the conclusion that there isn’t much connection between domestic counterterror operations and the actual terror threats that surely still exist.
Would those convicted for attempting terror in concert with undercover agents have acted alone? Entrapment law says a jury must believe that the accused had a prior inclination to commit the crime. But even if we accept that a jury would actually throw out a terror charge on entrapment grounds, proving prior inclination is a far cry from proving that the accused would have acted without the assistance and encouragement of law enforcement.
In several well-publicized cases, it seems almost certain that no terrorist attack would have occurred without the government’s active support. The Fort Dix Six were a group of New Jersey men who shot semi-automatic weapons in the woods, played paintball and sat around Dunkin’ Donuts talking about jihad. They were convicted after an FBI undercover agent offered to sell them guns and RPGs for what was said to be an attack on Fort Dix, where one of them had delivered pizzas.
In a few more extreme cases, run not by the FBI but the New York Police Department, the would-be terrorists were either unbalanced or of low intelligence, and sometimes both. Indeed, given the ubiquity of such stings, you have to wonder about the intelligence and stability of anyone who allows himself to be guided into terror by a stranger whose identity he hasn’t reliably verified.
The FBI would probably say that none of this matters. Catching people who might become terrorists is good preventive medicine. However hapless, those arrested aren’t morally blameless. Their arrests may discourage others and strike fear in the hearts of those who might authentically be trolling for co-conspirators to commit crimes. Surely a zero-tolerance policy is the right one for avoiding terrorist attacks.
The trouble is that the sting approach has undesirable consequences, too. Mainly, it focuses counterterrorism resources where they are probably least likely to thwart major events such as the Sept. 11 attacks. That operation, remember, was self-contained and did its recruiting abroad.
After 2001, the FBI was supposed to change its focus from capture and punishment to detection and prevention. Such detection, though, doesn’t on its own generate arrests and their attendant publicity. The FBI thus faces a constant incentive to backslide to the old paradigm. Sting operations are the closest thing to the old model of arrest -- which would be fine if they didn’t become an end in themselves.
Then there is the cost to the free speech and free association rights of the many innocent people -- mostly Muslims -- who must be encountering trolling agents without ever knowing it. Candidates for arrest don’t simply present themselves. They must be actively identified, cultivated and seduced by agents who meet them in mosques or Internet chat rooms or beyond.
We may never know just how many false leads the agents must follow before they catch a live one, and how many potentially seduced terrorists drop out before they take the steps that would lead to their conviction. But if earlier historical experiences of complex undercover operations like Cointelpro are any guide, the numbers must be high indeed. The risk of domestic terror is real. But when a future Church Commission opens the files, we may well see what the efforts of the 1960s and 1970s revealed: Scores or hundreds of agents trying to generate trouble to justify their mission.
This troubling possibility leads to the last problem with terrorist stings: They get everybody thinking about terrorism. The salience of events looms large in our cognitive capacities. Each time we hear of a thwarted “attack,” we are tempted to imagine that this means a real attack could be imminent. That in turn encourages us to devote more resources to prevention -- which might not be rational.
Worse, we are not the only ones whose thoughts are affected by the notion that terrorism is everywhere. Potential terrorists are, too. If they believe that there are many potential terrorists, it will make them feel less marginal and alone. In the end, this could actually increase the likelihood of them committing terror. After all, the usual disincentive of getting caught doesn’t apply to many would-be terrorists. If, in fact, their movement is near dead in the U.S., it would be better for them to know it.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
To contact the writer of this article: Noah Feldman at firstname.lastname@example.org.
To contact the editor responsible for this article: Tobin Harshaw at email@example.com.