The shutdown has meant that the deeply flawed and problematic surveillance programs that target Muslims have not been able to operate - and this is a good chance for the government to reevaluate their effectiveness.
The longest government shutdown in history ended on Friday after US President Donald Trump signed a reopening the government for three weeks. The ramifications were far-reaching as 800,000 federal employees have been either furloughed or working without pay, not to mention the extensive impact on both government agencies and public access to governmental services.
The FBI aggressively recruits informants, often trading clemency for criminal acts or promising legal status for immigration infractions in exchange for informing on their communities. They’ve also been known to punish those who refuse to snitch.
Exchanging clemency for cooperation presents severe conflicts of interest. In fact, according to the FBI’s report, FBI agents permitted their informants to break the law 5,600 times in one year alone.
In her book, Snitching, Criminal Informants and the Erosion of American Justice, Professor Alexandra Natapoff notes, “According to Northwestern University Law School’s Center on Wrongful Convictions, 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony. This makes ‘snitching the leading cause of wrongful convictions in U.S. capital cases.’” The threat of false informant testimony is real – and potentially deadly.
It's 1984 if you're a Muslim
The Muslim community is no stranger to the impact of informants and their nefarious presence in sacred spaces, businesses, and community activities. So when word of the FBI’s inability to pay informants made its way to social media, the Twitterverse and Facebook responded with dark humour, reflective of the undeniably damaging impact informants have caused to morale.
Dawud Walid's taunted the FBI humorously, “To FBI Informants: You might as well keep on coming to our Friday sermons during the shutdown, since it’s been some of your weekly routines for years.”
Others joined in, encouraging congregants to take note of those who’d mysteriously disappeared from mosque or community events.
The fact is that of the 873 individuals the US government has prosecuted for terrorism offences since 9/11, the vast majority were not even close to committing acts of violence, based on the Intercept’s real-time record of terrorism-based prosecutions.
The Intercept notes, “Very few terrorism defendants had the means or opportunity to commit an act of violence. The majority had no direct connection to terrorist organizations. Many were caught up in FBI stings, in which an informant or undercover agent posed as a member of a terrorist organization.”
Similarly, a 2014 Human Rights Watch Report found that nearly half of federal counterterrorism convictions “resulted from informant-based cases; almost 30 percent of those cases were string operations in which the informant played an active role in the underlying plot.”
As Michael German, former FBI agent and fellow at the Brennan Center for Justice, noted, “What I get concerned about is where the plot is being hatched by the FBI,” adding, “There has been a clear effort to manufacture plots.”
The Fort Dix Five case is no exception. In that case, two informants were used to rope five Muslim men into a terrorism conspiracy – four out of five of the men are currently serving out life sentences.
The fifth, Serdar Tatar, of Turkish origin, is serving thirty-three years. Tatar voluntarily contacted the FBI six months before his arrest, claiming that he believed a Muslim man he’d met at the mosque was planning on committing a terrorist attack. The man Tatar was referring to was the informant.
The two informants in the case were hardly good Samaritans. One informant, a serial con artist was paid nearly a quarter of a million dollars during his snitching stint, while the other fled to Albania after an attempted murder. In Albania, blood feuds are still commonplace.
The sting lasted sixteen months, during which the government procured over 300 hours of informant-generated wire recordings, over 10,000 FISA intercepted wiretaps, created more than 300 surveillance logs cataloguing the movements of the men, and generated over 300 FBI 302s.
And despite the deluge of surveillance, the prosecution failed to produce one piece of direct evidence showing a conspiracy to harm US military existed – not one conversation, not one phone call between the men indicating they had a plan.
Instead, the jury was presented with inflammatory videos one of the targets of the sting downloaded to a computer – 95 percent of the videos were downloaded at the time that the informant was requesting him for videos.
Dire need of reform
Indeed, the FBI should investigate legitimate threats domestically. However, investigating actual threats and creating them through the use of crooked informants are not the same.
When nearly 50 percent of wrongful convictions in capital cases are attributable to informant testimony, despite the availability of forensic evidence to serve as a check and balance, the perils for wrongful convictions for inchoate crimes is likely significantly higher.
Law Professor Peter Margulies criticises the pitfalls in prosecuting criminal conspiracy in his book Law’s Detour, saying, “Sometimes the alleged agreement that formed the basis for prosecution came perilously close to thought crime.”
These wrongful convictions severely impact immediate family members as well as the community at large. In the Fort Dix Five case, three of the men convicted are brothers. Last September, their father died of cancer. None of them was able to be with him during his last moments or attend his funeral. Two of the men became first-time fathers after their arrests.
The community impact is likewise noteworthy - there’s a significant damper on speech, stemming from a legitimate fear of being targeted by informants for speaking openly about specific topics, a palpable feeling of being watched.
The shutdown is over for at least the next three weeks, but moving forward Congress should scrutinise the FBI’s budget, particularly when it comes to informants who directly threaten the civil liberties of a minority religious population and people of colour.
Comprehensive criminal justice reform is long overdue.
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