Wannabe terrorists must be targeted

Claiming to be a supporter of al-Qaida isn’t a crime in this country. Neither is it a crime for undercover agents posing as members of a terrorist “sleeper cell” to agree that Osama bin Laden is the 21st-century equivalent of the bee’s knees.

But telling faux fanatics that you want to destroy the enemies of Islam before trying to detonate what you believe is a weapon of mass destruction in the parking garage of a 60-story office tower in downtown Dallas, well, that’s a crime — even if the inert bomb was provided by federal agents posing as fanatics.

The lawyer for Hosam Maher Husein Smadi, the 19-year-old Jordanian who was arrested Sept. 24 and accused of participation in the above scenario, responded as all good defense attorneys do when confronted with the fruits of a sting operation: “Entrapment!”

Tell it to the judge.

“Sting operations have been around forever, particularly in public corruption cases,” said Richard Roper, a former U.S. attorney for the Northern District of Texas.

Ku Klux Klan

Now a partner at Thompson & Knight L.L.P., Roper recalled a case of domestic terrorism in the mid-1990s when he was assistant U.S. attorney. Three Ku Klux Klan members were conspiring to blow up a gas plant. An informant gave them the manner and means to make it happen.

“But there was no doubt they were predisposed to commit the offense,” Roper said. “We had videotape where these Klan members were plotting out how to do it.”

As with the Smadi case, in which the defendant’s lawyer calls his client a misguided and pitiful young man, the defense in the Klan case said these guys were pitiful characters who would never have been able to commit the offense without outside assistance, Roper said.

“Never mind that one guy worked at the plant and they definitely had the means,” he said. “If they’d have had the opportunity, they’d have done it.”

Critics of undercover stings often refer to a “fine line” between what’s legal and what’s entrapment.

“Maybe it’s a fine line in their minds, but it’s bright one with lots of red flags in the courts,” said James Carafano, a senior fellow specializing in national security at the Heritage Foundation. “There are well-established protections in the law against entrapment. If somebody’s legitimately entrapped, they have a perfect legal defense.”

In conversations with agents posing as members of an al-Qaida sleeper cell, Smadi said he came to the United States to wage jihad. He told agents he wanted to target military recruitment centers but settled on financial institutions, according to FBI reports.

All of this, the FBI says, is on tape.

“It’s a common phenomenon that when you arrest someone in a sting, one of the defenses will be ‘I didn’t have criminal intent. I wasn’t the one that thought up this idea to blow up the building. You brought it up; I was entrapped,”’ said Jeffrey F. Addicott, the director of the Center for Terrorism Law at St. Mary’s University in San Antonio. “When defendants raise allegations that ‘it wasn’t my idea; it was yours,’ the government can play conversation after conversation to show the intent didn’t come from undercover agents.”

Establishing criminal intent is the key to a successful sting case.

Jury instructions

The jury instructions for federal cases in which a defendant asserts he was a victim of entrapment say that if a person “has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, that person is a victim of entrapment.”

If, however, a person is ready and willing to break the law — possesses criminal intent — “the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment,” according to jury instructions provided by Roper.

It’s not entrapment for a government agent to pretend to be someone else. It’s not entrapment for undercover officers or their informants to engage in an unlawful transaction.

X Jill “J.R.” Labbe is the editorial director of the Fort Worth Star-Telegram. Distributed by McClatchy-Tribune Information Services.