Terrorist and extremist movements have long exploited mass communications technology in pursuit of their political ends. The advent of the internet offers new opportunities. In response, state counter-measures seek to stem the impact of extreme ideologies by a number of tactics. “Positive” measures refer to those online initiatives that seek to make an impact through digital engagement and education and the provision of counter-narratives. “Negative” measures describe those approaches that advocate for, or result in, the deletion or restriction of violent extremist online content and/or the legal sanctioning of its online purveyors or users. More sanctions-based outcomes arise through discretionary state activity such as warnings and counselling of vulnerable individuals, or through disruptive counter-measures such as bans on the giving of lectures or prohibitions on the entry into the country of speakers or the taking down of extremist internet sites. Other measures step over into criminal justice, as wh...

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Online terrorism and online laws

Sting operations can potentially thwart terrorist plots, but could also threaten civil liberties and alienate communities, making them a critical subject for counterterrorism research. Yet ...

Another Form of American Exceptionalism? A Comparative Analysis of Terrorism Sting Operations in the US and Abroad

A growing number of studies have examined post-9/11 terrorism sting operations, typically concluding that entrapment is frequent in these cases. Yet no research has documented the full array of mechanisms driving these preemptive prosecutions. Based on in-depth interviews and documentary research, this article identifies the key factors shaping the widespread emergence of entrapment in terrorism sting operations. It concludes that an interconnected set of discursive and policy shifts, institutional processes, and cognitive biases explains the post-9/11 proliferation of terrorism prosecutions with compelling entrapment claims. Neo-orientalism is proposed as the ultimate driver that has set into motion and enabled many of these mechanisms, giving rise to a cultural and political economy of convictions in which a type of racialized police misconduct—itself a state crime—is normalized and rewarded.

Explaining the Emergence of Entrapment in Post-9/11 Terrorism Investigations

The sting operation is a mainstay of FBI counterterrorism strategy. Critics charge that this practice, in which an informant lures vulnerable individuals into a plot by promising money and more, amounts to entrapment. Detailing contemporary terrorism discourse and the mediation of the war on terror, legal and media scholars contend that the racial formations marking Muslims as predisposed to “radicalization” therein effectively preclude a successful entrapment defense. Building on these critiques, this paper addresses the function of mediation in counterterrorism beyond and in relation to representation. Utilizing the trial transcripts and available government surveillance evidence in the Newburgh Four case, this paper reconstructs the sting operation, remapping the medial work of the informant: how he established, cultivated and elicited the links that constituted the “cell” and its tie to global jihad. I argue that the induced linkages are the stuff of premediation; they constitute not actual ti...

Premediating predisposition: informants, entrapment, and connectivity in counterterrorism

How has the US government’s use of counterterrorism sting operations changed over the past quarter-century? Have major terrorist attacks led to more frequent sting operations and/or more frequent entrapment – and if so, have such changes been temporary or long-lasting? Have different types of terrorism provoked different reactions? This study answers these questions using a database of US terrorism prosecutions occurring between 1989 and 2014, each coded for 20 indicators of entrapment. We analyse temporal trends, and in particular, compare the government’s responses to the 1995 Oklahoma City bombing and the 9/11 terror attacks. Results indicate that after the Oklahoma City bombing, the number of sting operations against right-wing extremists doubled, while the average number of entrapment indicators dropped. This suggests that authorities in the 1990s responded to the growing threat of right-wing terrorism appropriately: conducting more investigations while avoiding entrapment. After 9/11, sting ...

Temporal trends in US counterterrorism sting operations, 1989–2014

The question of entrapment has received renewed attention as law enforcement stings have become more and more common in terrorism investigations. While even the judges on certain cases have become convinced that defendants were entrapped, the defense remains a universal failure. This Article suggests that the concept of entrapment remains valuable in the context of terrorism prosecutions, but that juries may not be relied upon to acquit entrapped defendants. A better solution would be extreme sentencing departures on the part of judges, which would protect the purposes of the entrapment doctrine while increasing the likelihood of its success. This Article first looks to the law and purposes of entrapment generally, then addresses the specific contours of entrapment in the context of terrorism investigations. Operational capacity of defendants is identified as a particularly telling aspect of the balancing of purposes in the entrapment doctrine. While this Article shows that operational capacity is already influencing sentencing, true protection of the interests at stake in the entrapment doctrine would be better protected by more severe downward departures, even below statutory minimum sentences.

https://law.lclark.edu/live/files/13718-lcb171art4laguardiapdf

Terrorists, Informants, and Buffoons: The Case for Downward Departure as a Response to Entrapment

This article examines use of torture by the U.S. government in the context of the late 20th century preventive turn in criminal justice. Challenging the assumption that the use of “enhanced interrogation tactics” in the war on terror was an exceptional deviation from accepted norms, this article suggests that this deviation began decades before the terror attacks, in the context of conventional criminal procedure. I point to the use of the “ticking time bomb hypothetical,” and its connection to criminal procedure’s “kidnapping hypothetical.” Using case law and criminal procedure textbooks I trace the employment of that narrative over several decades, prior to 2001, including growing support for the use of physical brutality in obtaining information from criminal suspects. Far from “unimaginable,” I argue that the use of torture had been imagined, and gained increasing acceptance, in the increasingly preventive focus of these standard criminal procedural debates.

Imagining the Unimaginable: Torture and the Criminal Law

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th century criminal justice trends to the 21st century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

https://digitalcommons.montclair.edu/cgi/viewcontent.cgi?article=1020&context=justice-studies-facpubs

Special Administrative Measures: An Example of Counterterror Excesses and Their Roots in U.S. Criminal Justice

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Abstract The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Francesca Laguardia

Papers

Terrorists, Informants, and Buffoons: The Case for Downward Departure as a Response to Entrapment

Imagining the Unimaginable: Torture and the Criminal Law

Special Administrative Measures: An Example of Counterterror Excesses and Their Roots in U.S. Criminal Justice

Imagining the Unimaginable: Torture and the Criminal Law

Pain that only she must bear: on the invisibility of women in judicial abortion rhetoric