Since the 9/11 terrorist attacks, the government has mounted a number of investigations in which undercover FBI agents or informers have posed as co-conspirators with suspects who get charged with trying to carry out plots.
It has spawned a national debate about whether the suspects are really terrorists or just easily manipulated people who become victims of entrapment. With the arrest of Terry Lee Loewen at Wichita Mid-Continent Airport on Friday, that national debate has come to the Air Capital of the World.
Loewen, a 58-year-old avionics technician, has been charged in an alleged plot to use his airport access to try to drive a car bomb onto the tarmac to inflict maximum deaths. Two FBI employees posed as people engaging him or helping him to carry out the attack, a criminal complaint said. Loewen didn’t find out he had been fooled until he tried to carry out the attack with what was inert material, not high explosives, the court document said.
A letter to the editor in Tuesday’s Eagle typifies the entrapment argument: “The FBI has a pattern of seeking out naive, harmless, disaffected individuals and using them to orchestrate a crime. … Terry Lee Loewen has been entrapped along with others in these phony plots,” wrote Don Anderson of Winfield.
A counter argument comes from the website of the Investigative Project on Terrorism, a nonprofit institute based in the Washington, D.C., area, commenting on the Loewen case: “Many national Islamist groups have criticized similar sting operations, arguing the FBI is manufacturing a terrorist threat where it might not exist. If Loewen’s correspondence in the complaint proves accurate, however, he was a man with the motivation and access to pull off a horrific attack. Left alone, he might have found ways to make his own bomb.”
John Henderson, one of the federal public defenders representing Loewen, declined to comment Tuesday. Jim Cross, Wichita-based spokesman for the U.S. Attorney’s Office, said it “will reserve its comments for the courtroom” because the case is pending.
What is entrapment?
Wichita defense lawyer Dan Monnat says it involves two elements: law enforcement inducing someone to commit a crime, and the person having no predisposition to commit the crime.
“The defense of entrapment reflects the sound public policy that it is unconscionable for government officers to ensnare the innocent and law-abiding into the commission of crime,” Monnat said. Entrapment exists when the criminal idea originates with government agents instead of the accused and when the accused is persuaded by the officers to commit the crime, he said.
A January 2012 article by David J. Gottfried on the FBI’s website, titled “Avoiding the Entrapment Defense in a Post-911 World,” notes that since 9/11, there has been an emphasis on preventing attacks. “In other words, law enforcement must, in a controlled manner, divert someone determined to harm the United States and its people into a plot bound to fail from the outset, instead of one that might succeed,” wrote Gottfried, a legal instructor at the FBI Academy.
To avoid the defense getting an acquittal based on a successful entrapment argument, Gottried said, careful planning of the investigation and careful execution by law enforcement is key. Part of the test, he said, is that “defendants must show by a preponderance of evidence … that officers induced them to commit the crime. Assuming defendants make their showing of inducement, the burden of proof moves to the prosecution, which must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.” So an entrapment defense can fail either by the defendant not being able to show inducement or by prosecutors proving the defendant was predisposed.
Only authorities know the whole case against Loewen. But they have laid out, in detail, some of their case against Loewen, in a 21-page, footnoted criminal complaint:
Loewen told an undercover FBI employee about his “desire to engage in violent jihad,” or holy war. About four months before his arrest, he said: “Brothers like Osama bin Laden … are a great inspiration to me.” He said he had a number of ways he could “perform jihad” and that “none of them are legal.” He read a magazine with terrorist ties. He said, “I really don’t see me living through any thing I have in mind.” As the months went on, he kept reiterating his commitment to jihad. He said, “Don’t you think with my access to the airport that I should put that to good use?” Around Sept. 21, he spoke of how “It would have been possible today for me to have walked over there, shot both pilots … slapped some C4 on both fuel trucks and set them off before anyone even called TSA.”
After the undercover FBI employee told Loewen he “could back out at any time,” he continued ahead, sending photos of gates to the tarmac and suggesting that a company logo could be painted on a vehicle, “allowing more time to modify said vehicle for an operation.” And this: “count me in for the duration.” The plot progressed to the point that Loewen was suggesting that another person could detonate a suicide vest in the terminal, the complaint said.
Finally, the court document said, about a month before the attack, Loewen “further expressed his desire to kill as many people as possible, and he explained where to park a vehicle full of explosives.”
In a letter to his family, he wrote: “I expect to be called a terrorist (which I am), a psychopath, and a homicidal maniac.”
Steve Emerson, executive director of the Investigative Project on Terrorism, said that based on the criminal complaint, “he had a predisposition.” Along the way, the undercover employees “provided him several outs,” Emerson said.
In most successful interventions to prevent terrorist attacks, authorities are using undercover people posing as co-conspirators, Emerson said.
He said he knows of no successful entrapment defense in a terrorism case after 9/11.
It seems that Loewen was mentally aware of what he was doing, Emerson said, adding that terrorists “might seem crazy to others … but they’re not crazy” even though others can’t rationalize terrorism.
The investigation of Loewen would have been authorized only after a “tremendous legal review,” Emerson said, adding that approval for “an operation like this comes out of headquarters.”
Mike German, senior policy counsel for the American Civil Liberties Union and based in Washington, D.C., said he wouldn’t comment on the Loewen case because not all the facts are known. But in general, German said, “The FBI has clearly been pushing the envelope in previous sting cases.” The situation has caused the current skepticism among the public, said German, a former FBI agent who said he worked undercover in domestic terrorism cases.
Questionable sting cases “exploit the fear” caused by terrorism, German said. Too many times, he said, the person targeted by the investigation doesn’t have the capability to carry out an attack even if he had intent.
There is a way to investigate a risk without intervening so much and “manufacturing the plot,” German said.
For the government, he said, building cases becomes a way to argue for more funding, resources and authority “rather than taking an honest assessment of the threats that exist.”
German said it comes down to politics – making it appear that government is tough on terrorism.