By Lauren Britsch, J.D. Candidate

Foiling terrorism plots obviously is extremely important to protecting the security of the United States. The work of informants has prevented many attacks and led to prosecutions. The most recent attempted terrorist attack highlights an extremely important aspect of law enforcement’s efforts to intercept attacks before they cause damage—the undercover operation and its close relationship with entrapment.

The FBI arrested Amine El Khalifi on February 17, 2012, for allegedly plotting a suicide bombing at the Capitol. Amine El Khalifi is a 29-year old Moroccan man who was living in Alexandria. He was charged with attempting to use a weapon of mass destruction against federal property in violation of 18 U.S.C. § 2332(a)(3), a crime that could earn him life in prison. The FBI prevented an alleged terrorist attack, but how did they do it?

 El Khalifi was the target of an FBI undercover investigation. An affidavit by an FBI Special Agent that accompanied the criminal complaint indicates that a confidential source first brought El Khalifi to federal law enforcement’s attention. That source told the FBI that while El Khalifi was at a meeting, he agreed with an individual carrying an AK-47, two revolvers, and ammunition who said that the war on terrorism was a war on Muslims and that the group needed to be ready for war. About 12 months later, El Khalifi traveled to Baltimore with an individual identified as Hussien to meet Yusuf, whom El Khalifi believed to be affiliated with an armed extremist group.  El Khalifi told Yusuf that he planned to blow up an Alexandria office building that contained military offices. El Khalifi later told Hussien that he wanted to attack a synagogue and suggested targeting an Army general. On another occasion, El Khalifi told Hussien that he wanted to blow up a restaurant located next to a government building—a restaurant he and Hussein visited together.

Hussien represented to El Khalifi that he was an al-Qaeda operative in January 2012, and El Khalifi understood that the planned attack on the restaurant would be part of an al-Qaeda operation, which would also include a subsequent attack on a military installation. After purchasing supplies for the attack, El Khalifi told Hussien that he wanted to blow himself up in the Capitol instead of attacking the restaurant. El Khalifi and Hussien met Yusuf at a quarry in West Virginia on January 15, 2012,, and El Khalifi gave Yusuf supplies El Khalifi believed would be used in the al-Qaeda attack against a military installation. El Khalifi also tried on a jacket containing an explosive device provided by Yusuf. They detonated a test bomb, and El Khalifi expressed that he wanted a larger explosion for his attack. While driving home from the quarry, El Khalifi asked Hussien to tell Yusuf that he wanted his martyrdom to occur on February 17, 2012. El Khalifi and Hussien conducted surveillance on the Capitol building on two occasions, and on February 14, they met with Yusuf who gave El Khalifi an automatic weapon and showed El Khalifi a vest that could be assembled into a bomb. On February 17, Hussien and Yusuf picked up El Khalifi in a vehicle containing the vest and automatic weapon. Upon arriving at a parking garage close to the Capitol, El Khalifi took possession of the weapon and put on the vest.  El Khalifi told Hussien and Yusuf he intended to shoot people before detonating the vest and then walked alone from the vehicle towards the Capitol. He was arrested before exiting the parking garage. Unbeknownst to El Khalifi, Yusuf was actually an undercover law enforcement officer, and the weapons El Khalifi possessed were inoperable and provided by the FBI.

I recount this course of events at some length because the state of mind of the defendant and timing of interactions between the defendant and the government agent are essential to the issue of entrapment. As expected, some individuals are already claiming this is a case of entrapment, allegations which often arise in terrorism prosecutions.

Entrapment is a defense to a criminal charge. It often is asserted in drug and child pornography cases, and more recently, terrorism cases. To assert the defense of entrapment, according to United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000),a defendant must point to evidence from which a rational juror could determine that 1) the defendant was induced to commit the crime by a government agent, and 2) the defendant was not predisposed to commit the crime.[1] Upon such a showing, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was not entrapped. Courts look to the defendant’s state of mind to determine such predisposition, though statements made after government inducement can be evidence of the state of mind.

Entrapment defenses have been raised before in terrorist cases, though not one such defense has been successful since September 11, 2001. One example is a recent case in which four men from Newburgh, New York, were charged with planning to bomb a synagogue and shoot down military planes was primarily built upon a government informant who had posed as a Pakistani terrorist. The informant in that case spent “several months secretly recording conversations with the men that included plans for mass violence and anti-Semitic comments, along with their moments of hesitation and concerns about hurting women or children.” The informant also offered the defendants money and cars and arranged for the defendants to pick up fake bombs. The defendants ultimately showed up at two synagogues and placed what they thought were bombs in front of the synagogues. The defense argued that the prosecution had not proven beyond a reasonable doubt that the defendants were predisposed to commit the bombing. However, the men were convicted. As one defense attorney put it in arguing for the verdicts to be set aside, “If [his client] was predisposed, they would not have had to offer him rewards.” In the case of United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011), the court held that a reasonable jury could find the defendants were predisposed to commit the crimes of conspiring to kill U.S. officers, exporting anti-aircraft missiles, and providing material support to a terrorist organization based on: 1) defendants’ knowledge of how to procure and smuggle arms and 2) defendants’ positive reaction to the idea that the arms would be used to kill Americans and harm U.S. interests.

It is not particularly difficult for the government to show a defendant was “predisposed” to commit the charged crime, which is likely one reason the defense often fails. In El Khalifi’s case, there is evidence the government can highlight to demonstrate El Khalifi’s predisposition (though the only evidence so far is that submitted by the government in the criminal complaint, an account of the story that the defense likely will attempt to rebut at trial). An individual not acting as a government agent made the statements about a “war on Muslims” with which El Khalifi allegedly agreed. This interaction transpired before El Khalifi met the government agent in this case. According to the complaint, El Khalifi was the first to mention the plans to bomb the Alexandria office building, to attack a synagogue, to target an Army general, to bomb the restaurant, and to attack the Capitol. Though Yusuf provided El Khalifi with the weapons, El Khalifi had expressed his plans to attack the Capitol before seeing such weapons. If the sequence of events in the complaint is true, there is likely enough evidence to show that El Khalifi was predisposed to commit the attack on the Capitol.

The need to prevent terrorist attacks from happening is greater than with other crimes because of the breadth and depth of destruction that a successful attack can inflict. Jurors who understand this aspect of terrorism may be more sympathetic to law enforcement tactics that border on entrapment, contributing to the lack of success of entrapment defenses in the terrorism context. Additionally, entrapment is unique among defenses because law enforcement can plan their activities in anticipation of the defense, ensuring that the operation either does not include inducement by the government or demonstrates that the defendant was predisposed. But who knows? El Khalifi could be the first terrorism defendant to win on an entrapment defense, though the facts as presented so far indicate it is unlikely that El Khalifi will have more success than previous defendants in terrorism cases.