August 5, 2016

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TSG IntelBrief: Counterterrorism and Informants

On August 4, the FBI announced the arrest of Nicholas Young, a Metro Transit police officer in Washington, D.C., marking the first time a U.S. law enforcement officer has been charged with terror-related offenses. Young was charged with providing material support to a terrorist group, and had been the subject of investigation for six years. Young first came across the FBI’s radar due to his connection to Zachary Chesser, who was convicted in 2010 of providing material support to al-Shabaab, an al-Qaeda affiliate. After Young traveled to Libya in 2011 to fight with anti-Gaddafi rebels, the FBI increased its scrutiny—though Young somehow kept his job as a police officer until his August 4 arrest.

According to officials, the FBI used an informant to build its case against Young. This has become a standard tactic in cases where the intent to commit a crime is more abundant than evidence. According to George Washington University’s Program on Extremism, officials have used informants in 58% of the 100 Islamic State-related cases in the U.S. since March 2014. In Young’s case, the informant eventually stepped out of the picture and FBI agents assumed his role as the case moved online. Once Young knowingly and willingly purchased $245 in gift cards for app purchases for the so-called Islamic State to use in communications, he was arrested.

While the length of time spent investigating Young is an anomaly—most recent cases have been far shorter in duration from initiation to arrest—the charge of material support for terrorism is not an anomaly. As with other cases, the Young case seems almost childlike or foolish in its scope, which is by design. The FBI has made it clear that in cases involving a known individual slowly trending towards terrorism, its strategy is to intervene and arrest at the lowest level of offense. This is the opposite of the systemically flawed approach seen repeatedly in places like France, where suspects well-known to authorities remain on watch lists, but are not actually watched. 

In cases involving informants, there is always a concern about entrapment. The U.S. legal definition is worth further examination: 

‘Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.’

The two elements of the defense of entrapment are:

(1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

Officials are very aware of the need to avoid entrapment, and no recent FBI terror cases have been successfully overturned with an entrapment defense. This is because the suspects have already demonstrated a predisposition to commit a criminal act, which is likely how the person came to the FBI’s attention in the first place. Statements of support for acts of terrorism are not crimes, but they do open the possibility of further investigation. Informants will probe to determine the extent of a suspect’s intention, but cannot implant the idea for a crime. Whenever possible, officials prefer the use of undercover agents or officers to ensure the strictest avoidance of entrapment.

Faced with the decision between appearing to only disrupt low-level plots in the early stages or waiting until the plots become far more serious, the FBI has determined to act sooner rather than later and avoid at all costs the scenarios seen in France and Belgium. With an overloaded terror threat matrix, the FBI has sought to move quickly but ethically to determine legal liability at the lowest level, arrest the suspect, and move on to the next case.

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