The erroneous public perception of entrapment

By Douglas J. Hagmann, Director

14 May 2007: The case against the six Muslim terror suspects arrested last week for plotting to kill soldiers and civilians at Fort Dix is the latest of such cases where the issue of “entrapment” has arisen in a variety of public venues. From the Associated Press to the Palm Beach Post, media outlets themselves are raising the question whether the FBI has become “too aggressive” in their investigations of suspected Muslim terrorists, suggesting, perhaps that undercover agents are at least partly responsible for the terrorist plans of the currently accused and previously convicted.

Unsurprisingly, the Council on American Islamic Relations (CAIR) has historically broached this argument in nearly every high-profile arrest of a group of Islamic men entangled in similar circumstances. CAIR, who is supposed to be on the side of American law enforcement to weed out “Muslim extremists” and is the “go-to” group for law enforcement training relating to Islam has frequently countered the judicial process by publicly questioning the legitimacy of such arrests by raising the specter of entrapment.

Examples of such claims are plentiful, from the 2004 arrests of Albany, NY mosque founder Mohammed Hossain and Imam Yassin Aref, the arrests of 7 Muslim “domestic terror suspects” in Miami in 2006, and now to last weeks arrests. Again, CAIR is ringing the familiar bell of victimization to an accommodating media and to a public growing in distrust of government operations.

The truth, however, is buried in the voluminous details of the indictments, criminal complaints, and testimony of government witnesses - documents that most Americans don’t have the interest, inclination or time to read. Additionally, the legal complexities of the issue can be tedious and daunting. I know this from experience.

During my investigative career, I have been used by the FBI as an operational asset to interact with now-convicted criminals in undercover settings. Without exception, the issue of entrapment was used as the lynchpin for the defense of the cases I worked, albeit unsuccessfully. I fully credit the professionalism of the FBI field agents for this, for they never once failed to thoroughly and indelibly instill the legal parameters of what constitutes entrapment and insured that my actions fell well within the legal limits of such activity. Even more basic than that, however, is the significantly mitigating factor of predisposition.

Loosely by definition, entrapment is the act of a government agent to induce someone to commit a crime that was not first contemplated by him for the purpose of instituting a criminal prosecution against him. In other words, the law enforcement officer not only originates the ideas of a crime, but further induces the other person to engage in conduct constituting the crime when he would not otherwise be predisposed to do so.

Entrapment, then, would require an officer of the law or person acting on behalf of a law enforcement agency to convince someone to do something he would not ordinarily do. Think of it this way: I’m legitimately acting on behalf of the FBI and befriend you, although you have no idea that I am an agent for the government. Maybe you work at a convenience store, and we see each other every day. We begin talking about mutual interests, and as familiarity with each other grows, conversation gravitates to political and religious ideology. You tell me that you and your associates are planning to wage violent jihad against America. I say nothing, or maybe I convey a sense of agreement and tacit approval of your intentions. You then tell me that you are seeking to purchase weapons for this purpose, and eventually ask me if I know of anyone who can sell you the weapons you want. Based on this unsolicited request, I am now engaged in this investigation, although did nothing to convince you to seek out a seller of the weapons, buy the weapons, or commit an illegal act - you asked me. After a series of additional conversations, meetings and other activities, you are arrested by the FBI.

Your next move is likely to be to complain that you were a victim of a “sting” operation, and that you were “set up.”

Although this is a significant oversimplification, it paints the general picture that with the predisposition that you conveyed, it would be difficult to claim that you were entrapped by an overzealous investigation. As much as organizations such as CAIR would like, you can’t have it both ways.

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