At least 150 people have been convicted through FBI terror stings since 2001. Boston reignites terror stings debate

Tamerlan and Dzhokhar Tsaernaev allegedly hatched a real plot that killed three and injured nearly 200 at last month’s Marathon bombings.

Many experts say Boston could have been spared all that blood and destruction if only the FBI had lured the brothers into a fake one, as part of the FBI’s controversial terror sting campaign.


In many of the sting cases, an FBI informant or agent approaches a target to inquire about his interest in committing a terrorist act. The approach sometimes comes after a tip or intercepted communications suggesting an individual discussed violence, though critics say Muslims are sometimes approached out of the blue. If the suspect agrees to participate, a plot is generated, and the FBI furnishes the suspect with inert explosives or disabled weapons.

( PHOTOS: Boston bombings manhunt)

“Before the bombing, these were a couple of guys who had gotten radicalized to the point of being potential terrorists, but they hadn’t yet taken the step of going operational. Those are the people who these sting operations are designed to catch and neutralize,” said Ken Wainstein, the first head of the Justice Department’s National Security Division and a former chief of staff to FBI Director Robert Mueller. “They are a great tool for separating the violent from the non-violent extremists, and they deter others who might think about resorting to violence.”

But other experts believe a plan to enmesh the Tsarnaev brothers in a fake terror operation would have encountered any number of disqualifying real world hurdles — and that efforts like it may harm the government’s effectiveness in pursuing legitimate plots.

At least 150 people have been convicted through the FBI’s use of terrorism-related stings since 2001, according to journalist Trevor Aaronson’s new book, “The Terror Factory: Inside the FBI’s Manufactured War on Terrorism.” The actual number of stings could be far higher, since those that don’t result in prosecution rarely get reported.

In the Washington area, sting operations have been used successfully in recent years to plan and prosecute plots to carry out a suicide bombing of the U.S. Capitol and to set off bombs in Metrorail stations. In Oregon, Mohamed Mohamud was convicted of attempting to blow up the Portland Christmas tree lighting ceremony back in 2010. And a Massachusetts man, Rezwan Ferdaus, was recently sentenced to 17 years in prison for plotting to fly model airplanes carrying plastics explosives into the Capitol and the Pentagon.

In fact, lawyers say the government has yet to lose a terror sting case it prosecuted — although that record may belie a more complicated set of results.

The actual number of sting operations run may be far higher than 150, since those that don’t result in prosecution rarely get reported.

Civil liberties groups, Muslim organizations and others argue that the FBI has been essentially generating crimes by individuals who may have been theoretically open to the idea of committing a terrorist act, but lacked the focus, sophistication and opportunity to carry out such a plan without the active involvement of the agency. The courts, while ruling in favor of the government, have issued similar warnings.

( PHOTOS: Boston Marathon explosions)

And some critics say the FBI lacks the massive amount of resources needed to run fake operations to recruit every potential terrorist without diverting its attention from investigations that may uncover existing plots.

“The problem is those very resource-intensive investigations spend all this time on a person whose capability of carrying out an attack is not very significant,” said Mike German, a former FBI agent who now works for the American Civil Liberties Union.

Former senior FBI official Buck Revell counters that the Boston bombings demonstrate that it doesn’t actually take much to pull off a major attack.

“With the homegrown terrorist situation we’re seeing and so much of the Islamist propaganda on the internet on various websites, the only way most often to handle individuals like this is through a sting operation once they have come on our radar screen,” said Revell, who added that he’d like to see more string operations in the wake of the Boston incident.

Among those who’ve criticized the FBI’s stings in recent years is one of alleged Boston bomber Dzhokhar Tsarnaev’s own lawyers: Federal Defender Miriam Conrad.

Conrad recently represented Rezwan Ferdaus, an engineering graduate snared by FBI employees who posed as Al Qaeda members and provided him with fake explosives, as well as grenades and AK-47 assault rifles

“Are you actually preventing crime [with these stings] or are you prosecuting people who are essentially harmless?” she asked in an interview with the Lawfare blog earlier this year. “The cynic in me would say it’s low-hanging fruit.”

FBI officials, naturally, took a different view of Ferdaus’s case.

“A committed individual, even one with no direct connections to, or formal training from, an international terrorist organization, can pose a serious danger to the community,” FBI Special Agent in Charge in Boston Richard DesLauriers, who is now running the probe into the marathon bombings, said at the time of Ferdaus’s arrest.

While sting advocates say the Boston Marathon bombings underscore the wisdom of using stings against suspects with no terrorist training or evident connection to a broader network, skeptics note that the Ferdaus investigation moved into high gear in January 2011, the same month that FBI agents interviewed now-dead bombing suspect Tamerlan Tsarnaev and decided to take no further action. Both matters were handled by counter-terrorism agents assigned to the FBI Boston’s office.

“While they apparently decided to stop tracking Tsarnaev…the FBI conducted a sting operation against an unrelated young Muslim man who had a fantastical plan for attacking the US Capitol with a remote-controlled airplane,” Aaronson wrote in Mother Jones last month.

The FBI has defended the effort its agents made to scope out Tamerlan Tsarnaev, with DesLauriers earlier this month as “thorough, comprehensive, and fully compliant with law and policy.”

However, officials have acknowledged that after closing the inquiry into Tsarnaev in 2011, the FBI was unaware that he had taken a trip to Russia, that he’d established a YouTube channel containing radical Islamic videos, and that he’d been asked to stop visiting a Boston area mosque due to hard-line views he’d expressed there.

Another question raised by the Boston bombing case is whether Justice Department rules known as the “Attorney General Guidelines,” as well as an FBI investigative manual, need to be changed to allow the agency to use more aggressive tactics against those suspected of a willingness to engage in terrorism.

The FBI closed an initial assessment of Tamerlan Tsarnaev after interviewing him and his parents. But critics say there was enough reason to suspect Tsarnaev for the agency to conduct broader rounds of interviews, put him under surveillance or perhaps even approach him in a sting operation. It’s unclear whether the FBI’s current policies would have permitted that.

At a recent House hearing on the Boston bombings, House Homeland Security Committee Chairman Michael McCaul (R-Texas) and former Sen. Joe Lieberman (I-Conn.) said the guidelines need to be examined, and perhaps loosened, to allow more aggressive investigation by the FBI.

The ACLU’s German says the current rules already allow use of informants in assessments like the one done on Tamerlan Tsarnaev in 2011. But former Justice Department officials say the bar for full-scale sting operations has usually been set higher than the sketchy information the FBI had or could have easily developed on Tsarnaev.

One possibility would be to undertake stings even in cases where the evidence of a predisposition to violence was shaky, maybe even too shaky to confidently overcome an entrapment defense in court. That approach might have prevented an attack like the one in Boston — but it might also require the FBI to mount a huge number of sting operations.

Whether or not that was ever considered in Tsarnaev’s case, “it’s definitely something that could have been done,” said former federal terror prosecutor David Raskin, now with law firm Clifford Chance — although “…the thought of the FBI running a source into every person they receive a lead on is inconceivable.”

Any changes to the guidelines and FBI policies are sure to face resistance from civil liberties advocates. German worries that an FBI that picked its targets based on thin evidence would be an agency returning to its controversial tactics from the 1950s and 1960s in domestic surveillance programs that strayed far from traditional law enforcement, zeroing in on groups perceived as subversive for “disruption” — an approach led to the so-called Church Committee hearings headed by Sen. Frank Church (D-Idaho.)

The Justice Department declined to comment on any potential changes to the guidelines, but Attorney General Eric Holder has defended the use of sting tactics in terrorism cases.

In a 2010 speech, he called them “an essential law enforcement tool in uncovering and preventing potential terror attacks.” He also specifically commended the FBI for “outstanding work” in the sting that resulted in the arrest of Somali-American Mohamed Mohamud for attempting to blow up a Christmas Tree lighting ceremony in Portland, Ore. in 2009.

“Mr. Mohamud chose the target location months in advance; provided FBI operatives with bomb components and detailed operational instructions; and repeatedly refused to change course when he was reminded that a large crowd – including children – would be in harm’s way,” Holder said.

Another key restraint on the FBI’s use of stings has been the fear that a prosecution based on the stings would go sour when a defendant claimed entrapment at trial.

Some sting critics thought the FBI and federal prosecutors were headed for their first defeat this year, when a federal jury deliberated Mohamud’s fate.

Defense lawyers argued that the main idea for the bombing came from FBI undercover employees, noting that Mohamud was just 17 when first approached by an informant and was 19 when he tried to detonate a van he thought was loaded with explosives. Still, jurors ultimately convicted Mohamud, apparently agreeing with prosecutors that he was predisposed to commit such an act before the FBI got involved.

As Conrad told the Lawfare blog earlier this year: “Entrapment as a legal matter is very difficult to prevail upon.”

But despite the government’s unblemished win-loss record on terrorism sting cases, the FBI’s tactics have come under criticism at times from the judiciary.

The federal judge who oversaw a 2010 trial in New York of four men for conspiring to blow up synagogues in the Bronx and to fire a stinger missile at an Air Force Base sentenced each of the men to a minimum mandatory sentence of 25 years in prison. The convictions and sentences have been appealed.

But Judge Colleen McMahon also said the government went too far in inducing the men — who she said were driven primarily by money, not political motives, and drawn into a plot they couldn’t possible have concocted or executed on their own.

”I am not proud of my government for what it did in this case,” McMahon said at a sentencing hearing.

Some also question whether the stings are fair to the Muslim community. While such tactics have been used in drug cases for years, their use in terrorism cases seems focused almost entirely on Muslim targets. Often informants lurk at mosques to ensnare suspects. Critics say that unstable members of devout Christian groups or others might be susceptible to such tactics, but the FBI rarely if ever tries to entice non-Muslims into violence.

That focus on Muslims and on mosques seems to have alienated some in the community even as federal officials continue to declare that their greatest asset in the war on terrorism is cooperation from Muslim Americans.

“Many Americans have, for example, deeply held religious beliefs about abortion. That doesn’t mean we would say law enforcement should be focused on all Americans with deeply held religious beliefs against abortion because any one of them could be on the conveyor belt to become clinic bombers,” said Farhana Khera of Muslim Advocates. “To say that that because Boston happened we need more agent provocateurs strikes me as an extraordinarily narrow view of how the FBI does its job.”