Imagine, for a moment, that you’re a young, impressionable, religiously devout youth, who promotes terrorist activity online—with no actual plans to carry out an attack. An older person with religious authority approaches you with an opportunity to become engaged in an act of terror. You accept. Your new acquaintance turns out to be a government operative. Have you been caught as a terrorist? Or were you induced to agree to a crime you otherwise would have been unlikely to commit?
A recent Government Accountability Office Report confirmed that federal agencies used 16,000 informants in 2013. Among the terror cases recorded in New America’s databases, approximately 47 percent of suspects have been monitored by an informant or an undercover operative, highlighting the significance of this strategy to U.S. counterterrorism capabilities. However, there have been a number of cases that have relied on questionable use of informants bordering on criminal entrapment. The question, then, is where does monitoring end and entrapment begin?
Mubin Shaikh, former extremist-turned-Canadian counterterrorism operative, acknowledged the complications of the conundrum at a recent event at New America. “If all I know is that [terror suspects] are down with the cause—they’re pro-ISIS or pro-al Qaeda—and I say to them ‘Hey, I can get you some guns,’ is that entrapment? Is that making them do something that they would not normally do?”
This is the crux of the issue. Many investigations have come under criticism for entrapping vulnerable individuals who would not have engaged in terrorist activity if they had never crossed paths with law enforcement. However, it can often be difficult to determine where the line is.
Shaikh offered a scenario to elucidate this. As an undercover operative, Shaikh met a potential terror suspect with military experience. He offered him the opportunity to train young extremists in military tactics, speaking of “A camp that’s happening in December—might you want to come by and train some of these guys?” Understanding what Shaikh was suggesting, the potential suspect responded, “No, brother. I’m here to study the religion; I’m not here to train.”
For Shaikh, who is also the co-author of Undercover Jihadi: Inside the Toronto 18—Al Qaeda Inspired, Homegrown Terrorism in the West, that anecdote was revealing. He implied that the target did not take the bait because he was not inclined toward terrorism. “But if I said the exact same thing to somebody else,” Shaikh says, “and [the suspect] said, ‘Yeah I would like to train,’ that’s not entrapment, that’s you getting caught.”
But is the divide as simple as Shaikh suggested? Young individuals are impressionable, and, often, promoting terror propaganda alone is not enough to determine whether they are planning to actually conduct terrorist activities. In many cases, these are young individuals who are vulnerable to being recruited, perhaps through opportunities presented to them by informants and undercover operatives.
These were the shades of grey painted by Murtaza Hussain, journalist and political commentator for The Intercept. “In cases where you have young people, the line between encouraging someone to do something they otherwise wouldn’t have done and just dangling bait—it becomes tricky to delineate that line. When someone is impressionable and an older person comes along and starts telling them ‘x, y, z’ about religion… then it becomes, are you forming their worldview or helping them act upon their worldview?”
Hussain said two different issues are at play. Infiltrating an existing criminal conspiracy is uncontroversial; that’s appropriate use of informants. “Where it becomes sort of tricky,” he said, “is when there is no criminal conspiracy, there’s no terrorist group, there’s no terrorist plot… and those cases, still, an informant sometimes is still introduced. Are you going to keep infiltrating this group or this person’s life until you generate a conspiracy whether there was one there or not?”
The complexities of monitoring potential terrorists are only exacerbated by the digital age. While the Internet does not render an informant completely useless, determining someone’s intentions is even more difficult online, as people often take on personas that are misrepresentations of themselves. For example, there was recently a case in which a prolific Australian ISIS supporter who called for a series of attacks against western nations through his social media account turned out to be a 20-year-old Jewish man who lived with his parents in Florida.
“It becomes a bit more challenging… with anonymous people online and fishing for who the legitimate potential terrorists are or [are] not, because when you’re on the Internet, you’re not the full totality of yourself, and you don’t know who this person is on the other end of it either,” Hussain admitted. “This medium of understanding this issue is quite limited.”
Moreover, the tactic of using informants, even when perfectly distinct from entrapment, is not always employed correctly. “The external costs of using informants very often or in situations where they were not warranted is that it eroded people’s ability to talk to each other—they can’t have discussions about foreign policy or theological concepts without fear of an informant being present,” said Hussain, adding that when the FBI does come to communities to discuss an issue, the individuals in them don’t have a premise of trust to facilitate those discussions.
Developing sources within vulnerable communities is, perhaps, the most equitable solution to the problem. Building a foundation for individuals to feel comfortable disclosing information to law enforcement, especially in at-risk neighborhoods, may be the key to ensuring the government is catching terrorists—not manufacturing them.