Posted by Gary Fouse at 12:15 PM
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The Council on American Islamic Relations (CAIR) has predictably attacked the FBI for its latest undercover operation that resulted in the arrest of a Kosovar Muslim who was planning to set off bombs in Florida. They are calling it a case of entrapment. Below is the latest report on CAIR's accusations from Steven Emerson at the Investigative Project on Terrorism. Below the link, I will explain (according to what has been reported) why this does not appear to me to be a case of entrapment.
(A check of CAIR's national and Florida websites reveal no mention of the case as of this morning.)
Now to the entrapment issue. I think I am entitled to comment of this since I did engage in undercover roles on several occasions in my DEA career.
When an undercover government agent is involved in direct negotiations with a suspect, and an arrest occurs, entrapment is generally the only legal defense available to the defendant and his or her attorney. The principle argument then becomes one of predisposition. In other words, did the defendant already have the predisposition to commit the crime prior to being in contact with the undercover agent (UC) or government informant. What the defense attempts to show a jury is that the defendant would have had no intention of committing the crime absent the role of the informant or UC.
Therefore, when preparing to launch an undercover contact, it is important for the government to be able to demonstrate that the defendant already was predisposed to commit the crime. In the case of drug cases, it is useful to show that the suspect was already involved in drug trafficking prior to meeting the UC or informant. That can be done in a variety of ways. A previous conviction for drug offenses is a start, but taped conversations as to prior activity, surveillance, testimony of other witnesses all go to show that the suspect was involved in drug dealing and that he or she was not being pressured into anything.
The fact that the government may or may not have provided requested materials to the suspect (such as bomb-making materials) does not in itself constitute entrapmant. Government or police may "afford the opportunity" for the suspect to carry out a crime as long as predisposition exists. For example, if an undercover cop poses as a passed out drunk in a New York subway, it is not entrapment if a mugger attempts to rob him and then is arrested. A person such as you or I, who is not predisposed to steal, would not try to rob an unconscious drunk. Accordingly, if someone plotting a terrorist attack is attempting to procure explosives, it is not entrapment for an informant or UC to fill that role.
Again, predisposition is the key, and it must be documented in such a way as to convince a jury.