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Tuesday, March 8, 2011

New article: "The Terrorist Informant"

There is increasing public and media interest in the government's use of terrorism informants, particularly with respect to issues of entrapment, and the impact on Muslim American communities. Professor Wadie Said at the University of South Carolina Law School has just published this article: The Terrorist Informant, 85 Washington Law Review 687 (2010), on this important subject. Here is the summary:
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant's services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.