It sometimes seems that we have a love-hate relationship with our law enforcement agencies. We want to feel safe and we expect our men and women in uniform to protect us from serious crime, save women and children from domestic abuse and be human enough to engage with the homeless and destitute on on streets (those same people we avoid eye contact with are the ones the police go out of their way on a daily basis to ask how they are doing). But we are constantly critical of the methods the police use to ensure the very security we demand. I can think of nothing more relevant in this regard than the carding controversy in Toronto. It is as if we are saying “Do all you can to prevent crime, but do it in ways that don’t weigh on my conscience”.
This duality extends to counter terrorism. There is no one who wants terrorists to succeed – well except the terrorist themselves I suppose – and we would all agree that our law enforcement (and security intelligence organisations) should have the tools necessary to foil plots. So what is driving the current controversy over the use of humans in terrorism investigations, whether as sources (the intelligence term) or agents (what they are called by the police)? Two recent articles in the New York Times and the New Yorker cast significant doubt on this tactic and imply that the FBI is overzealously targeting Muslims with human sources who, in effect, “manufacture” threats. And we are not immune from this debate in Canada. The Victoria legislature bomb plot of 2013 is still before the courts (John Nuttall and Amanda Korody were found guilty last year) as the defence claims that the RCMP acted improperly and actually “aided and abetted terrorist activity by helping the couple design, construct and transport the homemade explosives“, in effect enabling a terrorist act. Years after the Toronto 18 plot there are those that still fervently believe that the whole thing was a CSIS/RCMP plan to entrap young Muslims by planting a CSIS source/RCMP agent into the mix.
The argument against the penetration of criminal/terrorist networks by controlled agents (so called “sting” operations) goes something like this. The police identify someone who is exhibiting behaviour or thoughts that in theory could lead to criminal activity. Without the police intervention, however, these behaviours and thoughts would never result in such activity. Ergo, the police actually create a criminal where none existed before. On many occasions the person caught up in the investigation is alleged to have mental issues or comes from the marginalised/disenfranchised/alienated sector of our societies that is all too prevalent with those who see this driver as the primary cause of crime.
So where is the truth in all of this? Would person X have gone on to plant a bomb in a crowded food court if the police had not introduced an agent into his/her milieu? Are the police forcing that person to do something he/she would not normally do? Should this tactic be dropped?
The answer to the first few questions is impossible to determine. We would have to enter a counterfactual/alternative history dimension to ascertain whether the Toronto 18, for instance, would still have acquired 3 tonnes of fertiliser and built a detonator had Mubin Shaikh (the source/agent) not entered their world. We don’t get a “do over” in these cases. It is interesting to note that the courts to date have NOT agreed with defence entrapment claims. In other words, law enforcement agencies are operating correctly in this difficult space.
With respect to the last question, there are two important aspects to this issue that need more attention. The first is the relationship between thought and action. We all agree that no one should be arrested for what they think but rather for what they do, as long as the latter is criminal in nature. But we have to acknowledge that in most cases, and always in terrorist acts, thought precedes action and security intelligence/law enforcement agencies have to initiate investigations as soon as possible in order to have the maximum amount of time both to collect intelligence/evidence and to prevent death and destruction. Demanding that they wait until something happens is both wrong and ineffective. Yes there is a fine line and one that needs constant judgment, but we have to accept that early work is better than later inadequate work.
Secondly is it not a good thing that violent extremists are being monitored by individuals over whom the state has a measure of control? Do we not want our agencies to have eyes on people who intend to cause mayhem? These organisations have a variety of tools – intercept warrants, databases, cooperation with allies – but by far the most important one is the use of human sources/agents who can be directed and who can adapt to changing circumstances. In the absence of such a person, terrorists share their plans and acquire their material from people over whom we have no influence. As a result, plots succeed and innocents die.
There will always be a need to use human sources/agents carefully and judiciously. It is a very intrusive way of obtaining intelligence/evidence and the courts will hold our feet to the fire to ensure we are doing it properly. In the end we are achieving that balance and the agencies responsible for our safety have to be allowed to apply this measure. If they are not, and attacks go forward, we will blame them for not employing the very tool we told them not to.
