JURIST Contibuting Editor Ali Khan of Washburn University School of Law says that a recent USDOJ plan to encourage two Muslims to provide funds to assassinate Pakistan's UN Ambassador shows disrespect for international law and may also violate laws against entrapment.
The central idea of the plot was something like this: "Let's use the Pakistani criminal who has been convicted of selling fraudulent driver's licenses to immigrants. Plant him in the mosque. Tell him to act pious and be militant. But stick a wire under his shirt - to record everything he says and hears. Yes, cut his prison term if does the job."
"And the job he needs to do is this: he must come across as a Jihadi, someone devoted to Islam, someone who wants to teach a lesson to President Musharraf for supporting the US against Muslim brothers. This is what the informant should say to the founder and the Imam of the Albany mosque, something like this: 'Brothers, Assalam ulalikum. I want your help. I am buying a missile, yes a shoulder-fire missile. I can do it, I have contacts, but I need money, about 40 thousand dollars. I have the people who can kill Munir Akram, you know that ambassador at the UN. Him, he needs to go. And brothers, if you raise this money for the sake of Allah, you get 5 thousand dollars. Maybe you can send this money to Bangladesh children for memorizing the Quran. All praise to Allah. Brothers, can you help raise the money for the missile?'"
Touched by the informant's sincerity, the founder and the Imam fell for the plot. In law, such state-sponsored plots are known as entrapments.
On the surface, entrapment seems a clever way to catch potential criminals. In this case, the informant was an actor, but the founder and the Imam were acting with true hearts. They knew what they were doing was reality, not theater. The inducement was state-sponsored, but the response was authentically criminal. Response rather than inducement has been the staying logic of entrapment.
Yet, the American legal system views entrapments as morally odious. Law enforcement officials cross the acceptable line, the courts have held, when they prey upon human vulnerabilities and "implant in the mind of innocent persons the disposition to commit the alleged offense and induce its commission in order that they may prosecute." American courts have often dismissed criminal cases involving entrapments and let the defendants go.
The Albany entrapment case is bizarre even under international law. The United States government -- including its law enforcement agencies -- is under a treaty obligation to safeguard the dignity of foreign ambassadors. A hypothetical attack on the life of an accredited diplomat, conceived behind closed doors in the Justice Department, promotes little respect for international law. If anything, the plot harbors disrespect for envoys accredited to the United Nationsâan institution for which Al-Qaeda has no respect either.
Despite this repulsive international dimension to the fake terror plot, it is too early to tell how the courts would handle the entrapment case against the Bangladeshi founder and the Iraqi Imam of the Albany mosque. Right now they are in jail and bail seems unlikely. The prosecution seems determined to send these men to prison for the rest of their lives. These terror charges "represent our commitment to infiltrate and expose those who seek to do us harm," Deputy Attorney General James Comey said at a Justice Department press conference.
The Justice Department's goal of finding terrorists is legitimate, since America must be protected from internal enemies. But the end does not justify all means - not in law. The Muslim community of many millions living all over the United States need not be placed under psychological detention, fearing each other; nor need American mosques be infested with state-sponsored criminal spies.
Ali Khan is a professor at Washburn University School of Law in Kansas. His publications are available here.