FBI stings, like one in Cleveland, become more common in terrorism investigationsKaren Greenberg in Cleveland.com, May 06, 2012
CLEVELAND, Ohio — The kind of aggressive, undercover investigation that lead to five men being charged with trying to blow up a Cleveland-area bridge has become common practice with the FBI.
Agents don't just wait for terrorist crimes to be committed, they infiltrate cells, appear to collaborate with conspirators and take other stealthy steps to sting perpetrators before they act.
In the case of the accused Ohio 82 bridge-bombing conspirators -- members of the Occupy Cleveland movement -- a paid FBI informant discussed possible targets and helped them buy what they thought were plastic explosives from an undercover agent.
The five men were arrested last Monday after the FBI said they placed the devices beneath the bridge that connects Brecksville and Sagamore Hills and tried to detonate them with cell phones.
So, did the agency's efforts prevent a heinous crime that could have sent scores of unsuspecting motorists plunging to their deaths, or did they help create a crime that never would have occurred without its help?
It's the kind of question frequently debated after the FBI takes down suspected terrorists who unknowingly conspire with undercover agents and informants.
The FBI has become "much more willing to push the envelope on bringing plots along" and has even provided "all the resources necessary for the plot to move forward," said Michael German, a former undercover FBI agent who is now an ACLU attorney.
In February, the FBI arrested a Moroccan man on his way to bomb the U.S. Capitol. Agents had provided the man with a phony suicide vest and an automatic weapon he thought was loaded.
And like the foiled Cleveland bridge bombers, he considered other sites for attack before settling on the Capitol.
"Presently, the prevailing kind of view in the public is that the war on terror is so important that we're going to condone aggressive government conduct," said Geoffrey Mearns, a former assistant U.S. Attorney who helped prosecute one of the Oklahoma City bombers.
Mearns said the FBI and prosecutors are under intense pressure when deciding how to carry out an investigation because they know lives are at stake.
"If they miscalculate, the consequences are devastating," he said.
That point was driven home to Mearns when he was part of the team prosecuting Terry Nichols, who conspired with Timothy McVeigh to blow up the federal courthouse in Oklahama City.
An accomplice testified that McVeigh and Nichols used a milk jug to test their bomb in the desert.
"It didn't work," Mearns said. But the next time they tried it -- April 19, 1995 -- it did, "and they blew up the Murrah Building."
German is concerned that in some cases the FBI goes too far in its zeal to bag suspected terrorists and may coerce them into committing more serious crimes, a kind of criminal bait and switch. Or they trump up the severity of a plot to try and impress a jury, he said.
Critics frequently point to the Newburgh Four when describing FBI overreach. In that case, four black men with criminal records were set up by an informant who had infiltrated their New York mosque. All four were found guilty of trying to bomb two synagogues and shoot down jets, but when federal judge Colleen McMahon passed sentence, she suggested they were dupes.
"The essence of what occurred here was that a government, understandably zealous to protect its citizens, created acts of terrorism out of the fantasies and the bravado and the bigotry of one man in particular and four men generally, and then made these fantasies come true," McMahon said.
To many people, such investigations smack of entrapment, but good luck proving that in court. People have a general impression that the government can't induce people to commit a crime, German said, but the law frequently allows it.
The only thing the government has to prove is that somebody was pre-disposed to carry out the crime, said Case Western Reserve University law professor Lewis Katz. The assistance the FBI provides from that point on is often immaterial.
"Entrapment is a very, very rare defense," he said.
FBI spokeswoman Kathy Wright defended the agency's investigative techniques.
"There are strict guidelines governing the use of undercover operations," she stated in an email. ". . . The general notion that the FBI or Justice Department pushes unwitting suspects into sensational plots could not be further from the truth."
Katz also defends the police's right to infiltrate a legal, non-threatening organization if they suspect that people within are planning a crime.
It's unclear if FBI agents are keeping tabs on the Occupy movements across the country, but German said he wouldn't be surprised if they are given "what we know about their focus on other groups in the past."
The FBI has a controversial history going back to the civil rights and anti-war protests of the '60s and '70s where they infiltrated movements for social change and sometimes egged on criminal activity, said Cleveland defense attorney Terry Gilbert.
Gilbert's not saying the FBI did something similar with the foiled bridge bombers, but he believes questions about how the case developed need to be asked.
"Where did the idea come from? Did it come from these five obviously fringe, perhaps even unstable people, or did it come from somebody working for the government," Gilbert said.
The FBI states in a supporting affidavit filed in U.S. District Court that it acted on a tip last October by sending a confidential informant to an Occupy Cleveland protest to keep tabs on a group of "anarchists."
The informant witnessed several men in the crowd trying to provoke peaceful demonstrators into violent action. One of them, Douglas Wright, exchanged phone numbers with the informant.
And so began a six-month relationship that ended with Wright and four others trying to blow up the Ohio 82 bridge over the Cuyahoga River. At times, the conspirators discussed a variety of targets, according to the affidavit, and one of them even suggested they throw tacks from the back of their getaway car to prevent capture.
Transcripts of secretly recorded conversations were included in the affidavit, including a discussion on March 22 with Wright stating how bleach could be used to make a bomb.
"Bleach?" the undercover informant asked.
"You can make plastic explosives with bleach," Wright responded. "That's actually what they used to use like during World War II, World War I for like land mines and hand grenades and stuff. They use bleach."
"Well, what makes it blow up?" the informant said
"I'm not even sure but that's, that's what you make it out of is bleach," Wright said.
The next day, the informant suggested buying plastic explosives, although Wright, in a conversation on Feb. 20, said they probably would cost too much.
Along with Wright, 26, of Indianapolis, the FBI charged Brandon Baxter, 20, of Lakewood; Anthony Hayne, 35, of Cleveland; Connor Stevens, 20, of Berea; and Joshua Stafford, 23, of Cleveland, with trying to use weapons of mass destruction to destroy the bridge.
Karen Greenberg, director of the Center on National Security at Fordham University School of Law, said terrorism cases have high conviction rates but that public debate often focuses on who initiates the plot. Who, for instance, is the first to mention al-Qaida or to enthusiastically embrace jihad? Who suggests the target or the weapon?
With the foiled bridge bombers, it appears from the FBI's narrative that "almost everything started with the defendants themselves," she said, although it's not so clear that they could have carried out the crime without the government's help.
"That's the gray area here," Greenberg said, who has read the affidavit. " . . . You can be bent on destruction but can you actually carry it out?"
In the end, it probably won't matter, she said, because the defendants took the explosives to the bridge and tried to detonate them. And that will be hard for the defense to overcome.
"It's pretty much a slam dunk when it comes to the jury," she said.