Charges of entrapment in terrorist cases belie a woeful ignorance of how terrorism works.
If you work in security intelligence or law enforcement and are charged with countering terrorism there is one, and only one, thing on your mind: stopping any and all acts of of violent extremism in your jurisdiction. No one wants a serious terrorist incident to succeed after all.
The ways you do this are multiple in nature. You identify potential attackers as soon as possible. You follow them using surveillance teams. You try to recruit human sources or agents to infiltrate their cells to monitor and report back their progress towards an act in near real time. You get a court warrant to authorise the interception of their communications. You liaise with domestic and international partners to learn as much as you can about the terrorists.
In a perfect scenario you do all of the above.
You want to know more about the terrorists and their plans than they do themselves. And you want to leave no room for failure since that leads to death and injuries.
If you do your job well, you stop the aforementioned death and injuries and proceed to the next stage, i.e. charging the aspirational terrorists and bringing them to court. You present your case, the defence presents its own, and a judge and/or jury decides the outcome. Best result: terrorists behind bars.
So what happens when a jury sides with you and a judge decides that the verdict is not right, accusing you of ‘entrapping’ the terrorists, and throws the case out? Sound unlikely? Not in Canada. A famous (infamous) case from the west coast a few years back saw a jihadi couple freed after a judge overturned the jury’s findings and released the pair, ruling that they had been entrapped by the RCMP (Royal Canadian Mounted Police).
Interestingly, the entrapment defence does not always work. A Netherlands court convicted two men suspected of plotting a terrorist attack against a police station in Rotterdam and sentenced them to prison (eight years and seven years nine months). The two, originally from Morocco, were convicted on accusations that “they intended to use weapons and explosives to carry out attacks on arbitrary civilians and / or a police station, and had traveled to the Netherlands especially for that purpose.”
According to intelligence provided by the AIVD (the Dutch security service), at least one of the suspects also wanted to carry out an attack in France and that their communications on Facebook indicated they wanted to “conquer Dutch security” with God’s permission.
The prosecution argued that preparations for the alleged attacks took place between April and mid-June, 2018, in the Netherlands, but also possibly in France and Germany. They were arrested on June 17, 2018 in Rotterdam. In a video found on one of their cellphones, they said that nothing in their lives was more important than carrying out the attack and dying like a martyr, according to the court. A search of the web browser histories on their phones turned up sites with jihadist videos, propaganda, and instruction manuals to create explosives. One phone had been used to visit 1,722 such web pages, the evidence showed.
For its part, the defence argued that this information was the result of an entrapment scheme by authorities, adding that the terrorists’ “boasting” was meant to impress a person they were speaking with who was believed to be an ISIS supporter. The defence alleged this person was either an AIVD employee or a virtual persona operated by the AIVD and the FBI in the US.
Clearly, the court did not buy this defence. So why did a Canadian court?
I am no legal beagle but to me ‘entrapment’ means one of two things (or perhaps both):
a) the suspects had no intention of planning or carrying out an attack and would not have done so without the actions of the police/intelligence source/agent;
b) the suspects had no capability of planning and carrying out an attack and only received this capability from the the police/intelligence source/agent.
So, getting back to the Canadian case, involving John Nuttall and Amanda Korody, how did this apply, leading to the judge’s ruling to throw out the jury’s verdict.
Answer: it did not.
Before going on, I must disclose that I was aware of the couple’s plans before it became an RCMP case. I followed the case while at CSIS (Canadian Security Intelligence Service): such investigations often start as intelligence ones in Canada on account of the different investigative thresholds between security intelligence and law enforcement.
And I can tell you categorically that Nuttall and Korody had both the intent and the capability to carry out an attack, thus putting in question the judge’s decision. They clearly communicated their desire to ‘do something’, even if some of their plans were ‘pie in the sky’ early on in their scheme. The RCMP did not put this intent into their heads.
Furthermore, even if the two were hapless drug recovering drug addicts, that does not mean they lacked capacity.
Anyone, and I mean ANYONE, can carry out a terrorist attack.
You do not have to be able to fly a plane into a building or build a sophisticated IED (improvised explosive device). All you have to do is drive a car into a crowd (how many times have we seen that in recent years?) or start stabbing people with a knife (ditto).
In this case, the pair downloaded how to make pressure cooker bombs from the Internet: they were inspired by the Boston Marathon terrorists in April 2013 (the couple’s attack was planned for early afternoon on July 1 – Canada Day – on the lawn of the British Columbia Legislature in Victoria).
Thus, if they had both intent and capability, where did the ‘entrapment’ enter?
It did not.
The RCMP ran a textbook investigation in which they had full control of the suspects at all times.
There was no room for error and hence no real threat to the public. And yet, the Mounties were at fault?
What if they had not investigated the suspects and an attack had taken place? What would Canadians think then? And yet, a perfect counter terrorism effort was all for naught because a judge had a poor understanding of terrorism.
Dutch judges seem to get it: why don’t Canadian ones?
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- Eric Schmitt: Covering the terrorism beat for the New York Times - December 1, 2020