Law enforcement: Cooking up conspiracies

Says you

How should the American Muslim community interact with law enforcement at airports, on the streets, and in their mosques who perceive anyone presumed to be Muslim as a potential threat to national security?

The question is fraught with difficulty. The pervasive singling out of one religious group for heightened searches and surveillance is deeply troubling, necessarily calling for activism and opposition from the community. Yet some also cogently contend that the al Qaeda’s explicitly religious justifications mean there is an unsought, but now necessary, burden on Muslims, especially American Muslims, to rebut its toxic hatefulness.

Wrestling with dual problems of discrimination and doctrinal perversion is challenging enough. But the position of American Muslim communities is complicated exponentially by two policing tactics more familiar from totalitarian states—the forced recruitment of informants to spy on Muslim communities and the deployment of paid agents provocateurs to encourage and incite crimes. However one comes down on the larger relationship between American Muslims and law enforcement, the corrosive fear and distrust seeded by these tactics impedes useful political conversation. It unfairly handicaps community efforts to mobilize in local and national political voice. And it does not make anyone safer.

Recent news brings fresh evidence that both spies and agents provocateurs remain depressingly prevalent. Arrests of four men plotting to blow up a synagogue in Newburgh, NY, were accompanied by fanfare and loud warnings of the abiding domestic terrorism threat. Without question, the plot was heinous and the suspects, if the charges against them are proven, merit long sentences. But one aspect of the story has gotten inadequate attention—the role of an informant in instigating the crime. News coverage barely mentioned an informant had been thick with the culprits from early in the conspiracy—and that the same informant had been trawling area mosques, where he “spoke of violence and jihad” and offered congregants “substantial” sums of money to join him.

In many earlier criminal prosecutors, trials have revealed that informants play a catalytic role of instigation. This pattern emerges: State agents trawling Muslim communities for psychologically vulnerable young men who can be tempted into violence. The state is persistently cooking up conspiracies for which it then seeks our applause.

I do not exaggerate when I say there is a pattern. Consider just a few cases: In the 2006-07 prosecution of Matin Siraj, the so-called Herald Square bomber, an informant played a crucial role in coaxing Siraj toward criminality. Charges against the “Liberty City Seven” in 2006 hinged on the testimony of an informant who had even administered a “bayat” of al Qaeda loyalty to the defendants. The case against young Hamid Hayat in Lodi, CA, in 2005 also rested on incitement by, and then evidence from, a well-paid informant. And the pending federal trial of Syed Hashmi will turn on testimony from an informant who has already made a tidy living from testimony in both the U.S. and the U.K.

Paid informants deliberately cultivate “conspiracies” that yield high-octane headlines and that reinforce ambient suspicions about American Muslim communities, implicitly reinforcing the message that this is not a minority that has cause to complain. Police justify their own ballooning counter-terrorism budgets and can preen before a fawning press. Politicians bask in reflected glory, comfortable that the burdened minority represents a politically impotent sliver of their constituency. Everyone wins, almost.

In addition to semi-professional catalysts of “terrorism,” a wider swathe of unwilling informants, forced into their roles by government threats, saps trust within Muslim communities. Recruitment of spies by threats subtle or overt is nothing new. Back in 2006, Amy Goodman’s show Democracy Now reported on DHS efforts to recruit a Moroccan green card holder as an informant on the Muslim community in San Francisco. In New York, I have heard much (anecdotal) evidence from criminal and immigration lawyers of similar blackmailing in the context of admissions proceedings at the border and arraignment courts.

A proportion of the Muslim community, of course, is immigrant. Many people have loved ones they dearly do not want to see deported. Immigration law is vast and technical. It is possible to find technical violations to deport almost anyone, especially if terrorist epithets are bandied about. The limited pool of known instances does not mean this is an isolated tactic.

It is also not limited to the United States. In spite of a national counter-terrorism strategy that ostensibly and ostentatiously touts itself as a partnership with local communities, Britain’s security services also rely on informants. Last month, Muslim community workers in north London accused the British domestic spying agency MI5 of trying to recruit them as informants. Potential recruits were threatened that they would be barred from traveling; in one case, MI5 agents allegedly made threatening comments about the target’s seven-month pregnant wife.

In the United States, neither extant federal law nor the Constitution provides much shelter from informants or the pressure to become informants. The Fourth Amendment has an exception for “voluntary” statements to supposed confederates. In October 2008, Attorney General Michael Mukasey revised FBI guidelines regulating the use of informants, relaxing already-weak constraints, over protests from groups like the ACLU and Muslim Advocates. And it is almost impossible to win on a defense of entrapment in a criminal trial.

Ironically, there is little evidence these tactics work, little proof that the conspiracies that have been rounded up would have emerged without state aid. By contrast, there is plentiful anecdotal evidence that the fear and suspicious generated by these measures disrupts effective police-community relations. While the presence of informants means any conceivable conspirators will avoid mosques, it also corrodes the trust that underpins and motivates public cooperation. From what I have seen as a civil rights lawyer over four-plus years, these measures do have a tangible effect—sapping the long-term trust between the community and law enforcement that might be a basis for successful counter-terrorism policing.

Spies and agent provocateurs are nice photo-ops, not necessary precautions. It would be a visionary and far-sighted measure to renounce such tactics, improving at a stroke the position of the American Muslim community and the nation’s safety. Unfortunately, until short-sighted politicians can quit their cheap talk, we will not have an approach to domestic counterterrorism that works. And no one, in either the American Muslim community or otherwise, should sleep easy with that in mind.

Aziz Huq is counsel in several cases concerning detention and national security policy, including Omar v. Geren and Munaf v. Geren, challenges to US citizen’s detention in Iraq. He has advised and spoken before legislators on issues related to the Separation of Powers, excessive secrecy, and illegal detention. His book with Fritz Schwarz, Unchecked and Unbalanced: Presidential Power In A Time of Terror (New Press), was published in 2007, and will be reissued in paperback in spring 2008. He is a frequent contributor to The Nation, the American Prospect, the New York Law Journal and Huffington Post. His articles have also appeared in the Washington Post, the New Republic, Democracy Journal, TomPaine, and Colorlines. In 2006 he was selected to be a Carnegie Fellows Scholar. He also teaches a seminar in Just War Theory and Terrorism at NYU School of Law.