All right y'all welcome back.
It's anti-war radio.
I'm Scott Horton and our next guest on the show today is Karen Greenberg, Director of the Center on National Security at Fordham University Law School.
Formerly she was Director of the Center on Law and Security at NYU and is author of The Least Worst Place, Guantanamo's First Hundred Days.
She has this, I would say, extremely important article in The Guardian this week called How Terrorist Entrapment Ensnares Us All.
Welcome back to the show.
Karen, how are you?
I'm good, glad to be here.
Good, I appreciate you joining us today.
So how does terrorist entrapment ensnare us all?
Well, in many ways, but I think the bottom line of what happened is that it's a game changer for how law enforcement works and so that of course isn't necessarily limited to just terrorists.
And in the case that I was writing about, which is the Bronx Riverdale synagogue case here in New York, it's just the most egregious example of a preventive strategy on the part of the FBI that many associate, and in this case I think quite rightly, with entrapment, which is probably not how you want your law enforcement to be working if you're concerned about the rights of citizens.
Well now, so how's this work in history then?
Is there, you know, long-standing court precedent against entrapment, but now that's gone kind of a thing, or post-September 11th changes?
Yeah, I mean, I think what's happened is it's always had a very high bar, which is that you have to, the defense has to prove that it, you know, that this case was entrapment, and so it's their burden to prove that.
But, and we all know about, you know, FBI stings, etc.
The real question that's happened with terrorism is that the FBI hasn't powered itself to provide more and more details of the crime.
Well, you know, and for me there should be some kind of assessment of just what they are providing, because in this case, even the judge said, look, there would have been no crime without the government.
It's not a good idea to have crimes that are committed in that way, and particularly in something as high profile politically as terrorism.
So if law enforcement is producing the conspiracy, the target, the weaponry, and in this case the ideology, then how is that a crime that is being, we don't really know if these defendants would have done this crime by themselves.
We have no idea, and we have no way in which to judge them, and to ask juries to judge this, and to make decisions in an atmosphere where we're all so worried about terrorism has become increasingly problematic.
Okay, so if I understand what you're saying right, you're saying basically that proving entrapment in a criminal case in America, basically the real standard hasn't changed so much.
The burden is still the same as far as the defense really having an uphill battle to get an acquittal based on that argument, that kind of thing.
But since the FBI has ratcheted up the amount of entrapping, like the degree to which they're entrapping someone level by level, case by case, that it ends up where now they're getting away with what they never could have gotten away with before really, where people would have been acquitted on a situation like this, but now after what, 15 of these or 150 of these or something, the judges say, like you said, well there's not, there wouldn't have been a crime here, but there was, so off you go.
No, exactly.
I mean, I think what it really symbolizes is how different terrorism cases are, or have been to date.
I don't think that's going to be true forever, but how different they've been than other kinds of criminal cases, because they raise so many issues about national security, and the minute you call somebody a terrorist or begin to allege that they're a terrorist, the ability to try them fairly in court is decreased.
And then when you start bringing cases like this, it gets much more decreased, and it's a huge burden to put upon the jury to be able to sort of reason their way through, well, if somebody was willing, look, in this case, they were willing to take a bomb provided by the government.
They didn't know it was the government, but this agent disinformant had to place it at a synagogue, and so you say, well, look, they were willing to do that, and there's something to that argument.
You know, you say no if somebody asks you to plant a bomb someplace, but what's interesting about this case is that these guys did not have the idea of putting this bomb at the synagogue.
That was the idea of the informant, and so that's where it begins to get very dicey and very hard on a jury to reason their way through it.
Yeah, well, and you know, I don't know.
It seems like the agenda is to try to prove by just quantity of these cases that the problem is the lone wolf terrorist in America, not someone sent by Ayman al-Zawahiri, because none of these guys have been al-Qaeda guys.
I mean, Richard Reid and Abdulmutallab are the exceptions.
Zazi, I guess, was working with the, or I'm sorry, Shahzad, the Times Square bombers working with the Pakistani guys, but really, virtually every one of these terrorism cases, post-Moussaoui has been one of these setups.
The only one I can think of that's really an exception is, I think, Zazi was the one I was thinking of, the guy from Denver who was going to blow up something in New York, and they got him.
That was a legit one, but do you know of any other legit cases?
No, I mean, the one you left out was, of course, Hassan, the Fort Hood terrorist.
Oh, I'm sorry, yes, yes, of course.
And then the other case that's interesting is the case that was tried in Chicago, I think it was last month, which was David Hedley and his associate who were, David Hedley was connected with the Mumbai bombings, which again is another thing.
Although, yeah, I mean, he was working for the DEA and the FBI and all these things, so I don't put any credence in...
But I'm really glad you mentioned Zazi, because Zazi, the allegations against Zazi, which were not done via an FBI sting, were the kinds of things you want to look for that the FBI tries to replicate in these cases.
He did have training.
He did have training specifically in explosives.
He did have a target in mind.
He was motivated by al-Qaeda.
We haven't seen that, and it's happened in other cases.
And in seeing somebody who actually seems to pose a threat, it's so different than all of these cases, whether they be FBI informant cases or even some of the cases of the Somali Americans who are going abroad to fight in Somalia, where they're very much motivated by a nationalist cause that doesn't seem to have anything to do with jihad or terrorism or anything like that.
It's a very personal, very nationalist cause.
So, you know, this idea that we have to be still fearful of terrorism in quantity rather than in understanding the specific threats like Zazi and perhaps like Assad and Hassan is a whole other thing.
And I think you're right to point to that.
All right.
Now we're getting pretty near the break here, but I think we can fit in a question about, do you fear that this is going to start devolving really quickly into entrapment cases over local bank robberies and entrapment for somebody smoking a joint with a cop and entrapment across the board for regular American citizens?
I don't know about that, but I would say in other national security cases is where I would look for it.
I mean, it seems that when these things creep into other areas, they creep into areas that have a national security bent to them.
So, for example, a cyber crime, I would expect it in a cybersecurity area rather than in some kind of, you know, localized crime that is not associated with national security.
But again, that's just a guess.
All right.
And then, you know, I guess this is sort of left unsaid, really, when I was saying, you know, here's this guy Zazi was one legit case, Hassan, of course, so you correct me for leaving him out.
But there's been so few legit cases.
How many of these bogus entrapment cases have there been?
Well, some of them, I will say, just in the defense of the FBI, I mean, some of them are not bogus.
It's just that they became way too overaggressive in what they were doing in a legitimate thing.
But I would say you're looking at maybe 30 very serious cases that we would have to look at and a number of others that don't rise to the level of ever having, you know, serious charges associated with them.
I would say over a third of the serious cases that have come through and are associated with terrorism.
Hmm.
All right.
Well, I got a bunch more questions for you.
It's Karen Greenberg.
The great article at theguardian.co.uk is called How Terrorist Entrapment Ensnares Us All.
And we'll be back right after this.
All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with Karen Greenberg.
She is director of the Center on National Security at Fordham University Law School.
And she's got this important piece in The Guardian called How Terrorist Entrapment Ensnares Us All.
And, you know, it seems to me, Karen, that one of the way it endangers us all is that the FBI basically has a monopoly on protecting us from Al Qaeda attacks in this country, unfortunately.
And they seem to like to spend all their time chasing their tail, tricking some kid into claiming that Al Qaeda trains and pole vaulting in his grandfather's basement in Kandahar instead of actually protecting us.
So sooner or later, there's going to be another mass casualty attack around here.
The last semblance of the pretended existence of the Bill of Rights will be gone forever.
Probably we'll have another couple of wars based on it.
And it'll all be because the FBI was jerking around instead of doing their damn job.
Well, I try not to think that way because it's too scary.
But it's even more complicated than that because, you know, we just did the NDAA, the Defense Appropriations Act that just passed.
I mean, one of the things that it does is it disempowers and has the potential of disempowering even more of the federal court system by keeping detention issues and therefore the cases around them as part of the military.
Now, you know, in this current form that the bill passed that everybody seems to be confused by, one of the things you can read is that, you know, the country still does not trust law enforcement and the federal court system to do these cases the right way.
So we're between a rock and a hard place.
And that is that as we criticize the courts, as we criticize law enforcement for the way it's gone about some of these cases, and not all of them, but some of these cases, we take a little bit of the wind out of our own sails for defending the criminal justice system and its ability to try these criminals.
And what you're really alluding to that's really important is that there has to be a way that there's legitimacy for who is arrested, who is detained, and who is tried in the name of terrorism.
And on all fronts, we haven't been able to establish that legitimate ground.
I would say that with this entrapment case that I was that I wrote about aside, we've made, you know, some headway in terms of legitimacy in the cases that you mentioned, the Zazie, the Shahzad, the Abdulmutallab, etc, etc.
And these cases, the biggest problem with them is that they contribute to delegitimizing a system that is already under such attack from other venues, right?
Yeah, no, listen, I'm the last person in the world who wants to, you know, be the pressure from below that somehow, you know, justifies the military takeover of more and more of this policy, you know, but, you know, it's the same kind of problem.
I remember Peter Lance, who wrote all about the FBI in the really 10 year lead up to the September 11th attack, and how, you know, they kept covering up the fact that they could have stopped the last attack if only they'd done their job.
And each time they covered it up, they didn't follow all the trails that would have led to the next attack.
So then the next one happened, and the next one happened.
And Peter Lance was just so fed up.
He said, you know what, I know this is crazy.
But I just got to say I support the Homeland Security Department creation, because the FBI just can't be trusted to do this.
I mean, these people are absolutely the worst in the world that we should be relying on.
And I'm sorry to support the creation of a new National Police Force.
I don't want to, but it has to be someone else other than the FBI.
And, you know, that's the kind of position the FBI is putting us in.
It's their fault.
The Department of Justice's fault, not ours, for pointing out what a crappy job they do.
On the other hand, this is the weird part, is there have been some cases where they've done a much better job.
And there have been cases that they turned down, such as these two New York City cases that the NYPD brought these arrests on six months ago, and then again, I think two weeks ago.
So, I mean, part of me wants to say that in a way, there have been a couple of good cases.
And I don't know, you know, who's running the show or who's doing what.
I think it's instructive that Mueller was the person who, even after President Obama said, I'm not going to veto this, because I think the compromises are enough.
The FBI said, no.
You know, Robert Mueller, who's the director of the FBI, said, no, actually, they're not enough.
And this is still a vote that should be vetoed.
So again, you're in that kind of catch-22 situation.
So I think this case, the Riverdale case that I referred to where they entrapped four African Americans into agreeing to launch a Stinger missile against an airfield and into bombing a synagogue, is the most extreme of the cases, but one that really demands a rethinking of the counterterrorism strategy writ large.
I mean, you need some kind of law enforcement agency, and you need to be looking into threats, but you need to do it in an extremely tethered and smart way.
And in a way, we've just thrown out the baby with the bathwater by giving up in some ways on the court system and putting this in military hands.
So, you know, we want to try to find a way to work within the borders of our country and to keep this in the civilian system, I think.
Sure.
Yeah.
Bill of Rights comes first is, you know, the point of all of this, really.
Yeah.
I don't know if this is your expertise at all or not, but do you have any insight into what is the incentive system inside the DOJ and the FBI that prefers the busy work of entrapping the kid and his dad in Lodi, the gangsters in Miami, these guys in New York that you've written about here, rather than, you know, if they have nothing to do all day, just stand in there and wait until they have something really important to do, like look out for real Al Qaeda terrorists trying to get into the country.
And the last time around, there were 20 of them.
And that's about it.
Right.
Well, let's not forget.
I mean, let's not forget that, you know, and I know you don't because you referred to it already, that 9-11 really shocked everybody.
And the one thing that was just unacceptable was that somehow, whether it was the CIA or the FBI or whoever you wanted to, somehow this had happened, that we were caught so unaware to such a devastating and tragic consequence.
And so in response to that, the idea of a preventive way of stopping terrorism is understandable.
But and as I said, there have been a number of cases where what the FBI has done and what you want them to do is to uncover plots or uncover intention to commit violence that is already underway.
And I think I kind of referred to this in the article, you want them to uncover that kind of thing.
If in fact, this recent case of the man who was indicted for representing a renegade branch of the Iranian government in attempting to assassinate the Saudi ambassador in the United States, if in fact, as the criminal complaint says, he his conversation, he was the one who initiated this, and they sort of apprehended it partway, you want a law enforcement agency that can do that.
And certainly in terrorism, what you want to make sure of is that they are, they uncover something rather than create the circumstances of it.
And I think what you're reacting, what you're saying in your reaction is basically, they just can't be trusted with anything.
Well, we want to trust them with something, we have to, we don't have any other way of going about this.
But it can't be there that the issue is, or at least I don't think it can be the issue is, if I gave you a circumstance and gave you enough incentive, money, whatever it else, would you be willing to do this?
That seems to me an unfair way to egregiously unfair way to go about things.
And the sign not of a strong country, but of a country that's so weak that it has to rely on on a tactic that is, you know, law enforcement's way of bullying reality.
Yeah, I mean, and you know, like in the case of the Miami seven, it was just so apparent in all three trials, they finally got their silly conviction, that these guys thought that they were the players and that they were playing the informant.
Yeah, yeah, yeah.
I'll tell your video camera.
I love Al Qaeda as long as I get my $20,000 you promised me or whatever it was.
And of course, it was an informant who was playing them.
And so they were dumber than he was.
That's all.
None of it had anything to do with blowing up the Sears Tower by a million miles.
The whole thing was just such a joke, you know, right?
You need to have the degree to which personnel, and in this case, FBI informants need to be able to exercise judgment is important.
And it's a problem because what you're doing for informants, as opposed to undercovers, which would, if you had undercovers, this might play out very differently.
But you have informants who are people who have something to gain from providing the criminals and providing a criminal scenario.
So it could be deportation that they don't want.
It could be a reduced jail sentence.
It could be a number of things, but they have a lot to gain.
Another thing about these cases is that the incentives in some of these cases, like the Bronx case, are quite high.
A quarter of a million dollars is a lot of money to anybody.
And so to be offered that kind of money is a kind of incentive that I'm not saying anybody, that you shouldn't say no, but it's still such a high incentive.
And you're dealing with people who are often, don't have any means of assistance, often turn to crime for their income, that the ability to judge these situations disappears under that kind of stress.
Well, I'm glad you brought up the so-called Iranian plot against the Saudi ambassador, because it just so happens I was taking notes and collected the names of six retired CIA officers who in the first week said, yeah, right.
We don't believe this for a minute.
And Philip Giraldi, who's one of those same retired CIA guys, reported last week that Barack Obama has signed a new finding, stepping up covert action against Iran and Syria as well, based on that case.
And Gareth Porter and quite a few others have taken a pretty hard look at that indictment.
And it sure looks like the terrorism part of the thing never came up until the government informant was on the case.
And then obviously someone in the FBI was saying, oh, goody, we can do this thing that makes it look like Iran is doing this or that.
And they might not even know global politics, right?
They might not even know that they're messing around and could start a war.
They're just doing their game of, you know, trumping up a case and getting a big victory.
But meanwhile, they could change the history of the world with this kind of nonsense.
Yeah.
And I think the Syria case is actually another case where the arrest of the person who is thought to be surveilling on behalf of Syria.
And so whenever there are these kinds of cases that seem to line up with foreign policy issues, they do need some kind of scrutiny.
But the other thing is you don't want to get in a battle between the CIA or retired CIA and FBI, because they already have so much bad blood between them, especially over terrorism, starting with 9-11.
Then I think I never like to get into those debates because they're all, there's too many agendas.
That's the best thing that we have going for us is a little bit of Madison Federalist 10.
Ambition must be made to check ambition.
And you're right.
You know, I asked Michael Shoyer what he knew about John O'Neill, who was the head of counterterrorism in the New York office before 9-11.
And Michael Shoyer, the former chief of the CIA Bin Laden started spitting fire about how 9-11 was all his fault.
Because of course, all the cops want to do is indict these guys and seal all the intelligence behind a grand jury wall.
And all the CIA guys want to do is collect all the intelligence and kill them.
And so they all hate each other.
And then they don't share information with each other and all these things.
It helps get us attacked, but it also prevents us from being a complete, you know, one party police state too.
So, you know.
Well, there's that.
I'll take it.
I mean, and I think it is important that, you know, when six of them say, oh, come on, you know, yeah, they have a bias against the FBI.
I think in that in this case, it just allows them to be honest, where most others, you know, quotable would go along with it, you know?
I don't know.
I think that the finger pointing on 9-11, particularly by law enforcement, misses the point.
I think that, yes, you could finger point.
I think Mike Shoyer's attacks on John O'Neill are really unnecessary.
But I do think that the Bush administration holds, as an administration, that who was in power on 9-11 matters.
And that the inability of the National Security Council and the National Security Advisor to bring the threats of Al-Qaeda, particularly with planes, particularly against New York, to the president in a timely fashion, even though they had the information, is the most important fact you need to know.
And that, you know, rather than point fingers at this agency or that agency, that the executive of this country failed and failed the American public.
And I think that's a much more important thing than personal vendettas against, you know, that are used from one agency to another.
And whenever I hear that, I'm like, yeah, how comforting it is that we can say, you know, look at how these agencies are fighting when there's...
Again, I bring it back to personnel and judgment.
People have to bear the responsibility of assessing information and knowing what's important.
And if they don't know how to do that, then they shouldn't be the people we're empowering with these kinds of decisions.
Right.
And, you know, there's such a great counterexample in the plot against LAX in the year 2000, at least as Richard Clarke tells the story.
The president, Bill Clinton, took him seriously.
And they went and had this meeting where they demanded all the different cops of all the federal agencies and the intelligence people shake the trees, man, find out everything, pass the word down to the lowest man.
We're on the lookout for Al-Qaeda coming for the millennium.
And the word got to a border cop at the border between Washington State and Canada.
And he said, boy, you sure do have a sweaty forehead.
You mind popping your trunk for me, pal?
And he busted a guy plotting to blow up something at LAX there.
So it was doable, regardless of what the CIA, FBI, NSA, et cetera, thought of each other for their bosses, the real people who are supposed to be accountable to tell them, hey, get it together.
And, you know, we have an emergency here and have it gotten straight and really prevent something terrible.
And I think that's right.
And I think, look, there are people who wish us harm.
And one of the things that kind of gets looked over when we criticize how certain cases play out is that, you know, it's not that people who are criticizing things like myself think there are people don't wish us harm.
I take it very seriously that they do wish us harm.
But there's something else.
You know, they are not superhuman.
And they are detectable.
And they are findable.
And they are findable without, you know, sacrificing quality of information for quantity of information.
And we are still reeling from the effects of 9-11 on our ability to judge in a clear-minded way.
And that's why I get upset about, I don't like to say, well, you know, the FBI is, you know, we need to get rid of them.
It's not any of that.
It's about an entire country, which we all belong to, being able to say, you know what?
This is an enemy.
This is an enemy we can deal with.
This is an enemy that's discreet and is numbered.
And it's not some kind of ether in the air and that is individuals.
And we need to calm down and exercise much more wisdom and judgment in how to deal with this.
And all of these things you and I are talking about are just evidences of a lack of judgment.
Well, you know what?
It sure seems to me, too, that if we embraced our Bill of Rights and our Constitution and the best of our traditions, that that would be one of the best ways to fight the war on terrorism.
Like, for example, if George Bush had told the American people, don't be afraid.
It's very sad, but you're not in danger.
It's all right.
And then told the world, hey, look, we're going to go find bin Laden and Zawahir and kill them.
But, you know, we never meant to be an empire.
We were just trying to protect you from the Russians, after all.
Now the Soviet Union's gone.
You're right.
We should get our bases out.
We're the Statue of Liberty over here.
We don't mean no harm.
We're not an evil empire.
And then that entire worldwide sentiment from September 12th would have stayed.
We'd be living in it right now to this day.
I think it's not just President Bush.
It's any political leader.
I don't know of one since 9-11 that's been willing to face the American people and say, to the best of our knowledge, we think that we're keeping you safe.
It's almost like, you don't want to say we're safe because then something bad will happen.
We're living in a kind of superstitious bubble.
The truth is, we've done all these things, good and bad.
The world has changed immeasurably since 9-11.
We were not completely unsafe prior to September 11th.
We dropped the ball in a major and devastating way.
And we still think of ourselves as a nation that is much more vulnerable than I think we are.
And no politician is willing to get out and counter that.
And until that happens, you're going to have the kinds of excesses on the part of law enforcement because they're encouraged by that atmosphere.
So it's whatever they call it, the chicken and egg.
It's a circle.
Right.
Well, it's the same overreaction overseas does make us more likely to continue to be attacked into the future.
We're going to need somebody to keep those guys out of here.
There's a lot of revenge left to be waged, it seems like to me.
There's a lot of revenge and there's still a lot of jealousy, even though the economic downturn has hurt everybody.
And a lot of the anger towards us may be justified, but a lot of it also may not be.
I think that's beside the point.
It's not a matter of justified.
It's a matter of just fact, you know, like when Faisal Shahzad tried to blow up the Times Square, he told the judge, well, you don't care when you kill civilians where I'm from.
I mean, all he did was join up the war on the other side.
Really, we've been doing September 11th attacks inside Pakistan all this time.
And he saw one.
And in fact, you know, as far as hating freedom and all that, he was living a pretty great free life with a well-paying job and a wife and a kid and a house and all these things here.
He went to Pakistan.
He saw the effect of drone strikes.
He joined up on the other side doesn't mean that he was right to do so or that he was right to attempt to attack the Times Square.
It just means that, hey, you know, Newton's laws and all that actions and reactions.
Exactly.
And so I mean, and I think you're saying this, too.
It's it's it's very complicated.
And and all of these things, foreign policy, domestic policy, play into it.
But but of all the things, what you really need is very firm, confident, fair minded and not scared leadership.
And to some extent, we still don't have that.
And I think that's a huge problem, a bigger problem than any of the other things we've mentioned.
Yeah.
All right.
Well, thank you so much for your time again and your great writing.
I really appreciate it, Karen.
Thanks for having me.
Everybody.
That's Karen Greenberg.
She is director of the Center on National Security at Fordham University Law School.
And she's got this very important piece in The Guardian called How Terrorist Entrapment Ensnares Us All.
