Wolverine Watchmen and Enthusiastic Police
Police manufacture of "domestic terrorists" in the United States and Canada
It was one of the most dramatic press releases ever issued by the FBI:
Six Arrested on Federal Charge of Conspiracy to Kidnap the Governor of Michigan
The media reaction was breathless. The lead of a front-page New York Times story read, “Storming the State Capitol. Instigating a civil war. Abducting a sitting governor ahead of the presidential election.” Yikes. What was happening in the land of the free and the home of the brave? Good thing the FBI was on the job to uncover the deranged plot by a group of white-supremacist anti-vaxxers known as the Wolverine Watchmen.
But it turns out that the FBI did more than uncover the plot. By and large, it created it.
Two of the six people arrested pleaded guilty and testified against their co-accused. In doing so, they accepted a penalty of six years in prison. This pair must feel like chumps. A jury acquitted two others and could not reach a verdict for the other two. It’s embarrassing for the FBI and Department of Justice prosecutors.
Going into the trial, prosecutors were confident. It was perhaps the most well documented conspiracy in history. In addition to the two ratting on their colleagues, the Wolverine Watchmen was riddled with undercover FBI agents and paid informers. Prosecutors had over a thousand hours of recorded conversations as conspirators talked and talked and talked over their plans. They had video of a group of twelve conspirators scouting out Michigan Governor Gretchen Whitmer’s house. But in the end, prosecutors were left with a handful of s**t. As the New York Times explained after the trial, despite the mountain of evidence, “the prosecution’s case was hampered by a lack of clarity on what exactly the men were accused of plotting. No attack ever took place and no final date for an abduction was set, testimony showed. The details of the alleged plan sometimes differed drastically from prosecution witness to prosecution witness.”
Then there was the stuff really embarrassing to the prosecution. Three undercover FBI agents were not called as witnesses by the prosecution. One had been kicked out of the FBI after pleading “no-contest” to domestic violence charges. Apparently, he’d gotten into an altercation with his wife after they had participated in an orgy. The guy did not dispute the evidence against him, but said he could not enter a straight-up “guilty” plea because he remembered nothing from the evening. Another FBI started moonlighting by establishing a private security business. In his marketing material, he bragged about his role in the Whitmer kidnapping case – thereby creating a direct financial incentive to get a conviction. That’s frowned upon by the courts. And then there was the paid informant who was so discreditable that the prosecution attempted to expunge his voice and existence from the surveillance tapes lest questions get asked about him. We won’t even mention the tapes of “planning sessions” in which each and every participant was either an FBI undercover agent or a paid informer.
As one hard-bitten ex-federal prosecutor summed it up the jury looked at the FBI’s conduct and said “Yuck”. The verdicts expressed the view that no conspiracy would have existed had the FBI not created it. The people accused of being diabolical white-supremacist, anti-vaxxer terrorists were just a bunch of dumb schmuck loud-mouth losers who could not have successfully conspired to organize a piss-up at an Irish bar on St. Patrick’s Day without undercover FBI agents buying the drinks. As a result, the defence entrapment argument was largely successful.
Entrapment, Trickery and the Law
Some people believe that the police should always be noble and truthful at all stages of an investigation. That’s not how the law sees it. Police are expected to be truthful when testifying in court, but are allowed (encouraged) to lie like sidewalks during investigations. In both the United States and Canada, police can and do lie, trick and deceive suspects. Sting operations are sometimes mounted to trick burglars into delivering stolen goods to undercover officers posing as fences. In Canada, police use “Mr. Big” to convince homicide suspects they are talking to the boss of a powerful criminal gang which can thwart an investigation – so long as Mr. Big is told the details of the crime. Sometimes killers have shown Mr. Big where the body of their victim was buried. These kinds of police deceit operations are not entrapment; the crime has already occurred. The police are using deceit to gather evidence and obtain disclosures of guilt.
Police get into a grayer area when they use deceit to “solve” a crime that has not yet occurred. In day-to-day policing, this occurs most often in prostitution and drug trafficking offences. Undercover officers will pose as a prostitute in order to arrest potential clients or as a drug purchaser to arrest a dealer. Those who get tricked often protest they were the victim of “entrapment”; that they would not have committed the offence but for the temptations placed in front of them. In most cases, these protests are dismissed by judges and juries. A guilty mind and a guilty act produce a guilty verdict even police trickery was involved.
An entrapment defence will work if the duped defendant can show that, but for the trickery, they would not have committed the crime. As such, the entrapment defence fails if the accused was the first to suggest a criminal act. If you are a street-level drug dealer actively approaching people with an offer to sell them drugs, you are not a victim of entrapment if your putative customer happens to be an undercover narcotics officer. It gets a little murkier when the undercover officer initiates the discussion. In general, the courts rule that the drug dealer was not a victim of entrapment if they were normally in the business of selling drugs. If the undercover officer approaches someone on the street asking to buy drugs and the person immediately says “sure – how much do you want?”, the best defence lawyer in the world will not get an acquittal. On the other hand, if a police informer approaches someone who does not normally sell drugs, badgers them persistently and threatens to murder the person’s daughter if they don’t go through with it, well, that’s entrapment. So said the jury looking at the case of John Delorean.
Terrorism cases present an interesting challenge. Police want to PREVENT a terrorist attack. Letting a terrorist group go ahead with kidnapping and executing a governor in order to create an airtight criminal case against the perpetrators would be controversial. Unlike with a drug deal, police cannot allow the final transaction to occur. As a result, the police infiltrate and monitor a potential terrorist group in order to document planning and preparations. The resulting charge is conspiracy to commit a criminal act rather than the commission of the act. This creates potentially problematic issues:
In order to become accepted as a member of the terrorist group, the undercover officer or informant sometimes must commit illegal or unsavory acts. Will this undermine their future credibility as a witness?
Sometimes people who become informants are intrinsically unsavory or unreliable. They often want immunity from past bad acts in exchange for their information. They have a built-in incentive to exaggerate the severity of the threat they are helping to thwart.
The planning process consists of talking things over. Most talk remains just that. There are innumerable loud-mouth big-talkers out there. For most, it is just fantasy. Only a few loud-mouth jerks are really “conspiring” (i.e. actually planning to do something bad).
Even if the loud-mouth is willing to walk their talk, do they have the capacity to do so? If the undercover officers make themselves useful to the would-be terrorists, at what point are they creating a potential terrorist act that would never, on its own, have come to fruition.
When terrorist conspiracy charges dissolve into acquittals and recriminations, the police have put themselves on the wrong side of these issues. In the end, the “conspiracy” ends up much like Boggarts inhabiting the dark, enclosed spaces in the magical world described by J.K. Rowling. They take the form of our worst fears, but are thwarted with the incantation of “RIDDIKULUS”. (For more great Harry Potter insights, click here)
A Botched-Up Terrorism Investigation in Canada
In Canada, we like to tut-tut goings on in the United States. After all, everyone knows enduring cold weather creates moral superiority. But terrorist investigations have turned into expensive fiascos in this country as well.
On July 3, 2013 RCMP Assistant Commissioner Tom Rideout held a dramatic press conference to announce the arrest of two Al Queda “inspired” terrorists for planting explosives at the British Columbia legislature on Canada Day. He showed off two shrapnel bombs made from a combination a pressure cooker, explosives, a timing device and rusty nails. The bombs were similar to those used two and a half months earlier to kill three and injure hundreds at the Boston Marathon. It was big news. BC Premier Christie Clark said terrorists “will not succeed in tearing down the values that make this country strong…Our parliament stands strong. We are back at work today, undeterred and unafraid.” Federal Public Safety Minister Vic Toews said, “I would like to applaud the RCMP-led Integrated National Security Enforcement Teams — known as INSET — and all of the partners for their outstanding work on this investigation."
The two accused, John Nuttall and Amanda Korody had recently converted to Islam. Nuttall had a long history of violence. They had been wandering about the community proclaiming their desire to participate in a jihad.
Scary stuff. Al Queda terrorists in British Columbia. Yeah for the police, standing guard for thee. But question soon emerged. Reporters quickly noted the strategic ambiguity in the terminology. Inspired by Al Queda. Not part of Al Queda. Experts on Islamic terrorism noted that that it was exceptionally unlikely that Al Queda would want to have anything to do with this pair. A former CSIS officer noted, “Al-Qaeda has never used women. Al-Qaeda converted people who will embrace the cause, who will usually convert and change their names, and these people have Canadian names."
The landlady, neighbours and acquaintances of the two accused of being dangerous terrorists expressed shock and disbelief at the charges. Nuttall was a former rock guitar player whose musical career cratered because of substance and alcohol abuse. The two were on welfare and enrolled in a methadone program for heroin addicts. Conversion to Islam had apparently assisted with their attempts to cut down on alcohol consumption. Their landlady let reporters into their apartment. Reporters were shocked by the squalor. The Globe and Mail headline read, “Accused couple’s home a smelly mess: Basement apartment tells a story of drug addiction and a penchant for religious thought and loud music.” One acquaintance told the National Post, “I don't think Mr. Nuttall had the capability to type the word 'manifesto,' never mind create or follow one.” A former bandmate of Nuttall’s told the Globe and Mail that “He didn’t seem like he could put together a guitar riff, let alone a bomb.” Losers can be dangerous, but it didn’t smell right.
Turns out the skeptics were right. At trial, the judge directed the jury to acquit on the most serious charge. After the jury voted to convict on a secondary charge, the judge said overturned the decison. The judge’s key conclusion was that:
It cannot be said that the police acted in bad faith; however, they did not act in good faith. They were clearly overzealous and acted on the assumption that there were no limits to what was acceptable when investigating terrorism. Within their ranks there were warnings given and ignored. Anyone who disagreed with Sgt. K’s views saw their roles and influence over the course of the operation minimized or eliminated. There is clearly a need to curtail the actions of the police in a prospective sense to ensure that future undercover investigations do not follow the same path. Moreover, to permit the defendants’ conviction to stand in the face of this kind of police misconduct would be offensive and would cause irreparable damage to the integrity of the justice system.
The BC Court of Appeal confirmed the tossing of the charges. That was that. The RCMP had spent $911,090 on overtime pay and $$92,397 on “goods and services” running the investigation. That’s over a million dollars – not counting expenses such as court time, prosecutor’s salaries, legal aid lawyers and so on - all to obtain a judicial smack-down of the police.
What happened?
According to the evidence presented at the trial, CSIS received an anonymous letter saying Nuttall was talking violent jihad-type talk. The RCMP checked it out. The leadership at the local Mosque confirmed the story. Nuttall and Korody had presented themselves as recent converts to Islam, but had been told to go away because of their obsession with violent jihad. The leaders at the Mosque suggested that the provision mental health services would be appropriate. Instead of following this excellent suggestion, the RCMP launched an undercover sting operation.
An undercover officer pretending to have links with Al Queda made contact with Nuttall and asked him to come up with a plan for a violent attack on the evil enemies of the Islamic faith. Nuttall eventually came up with a plan to hi-jack the passenger train on Vancouver Island and use the passengers as human shields to attack a nuclear submarine at the Esquimalt naval base. All with three people – or maybe four if a sniper to provide cover was added. Aside from the fantastical nature of the plan, there was a problem. VIA Rail had stopped operating the train two years earlier. Nuttall then proposed a rocket attack on BC’s legislative building. He said the mujahideen used this kind of rocket; he had learned this watching Rambo III. Al Queda would need to supply him with equipment and material to build the rocket; things like plasma cutters, which he had never operated. The undercover officer said a “quick, cheap and easy” plan would be more appropriate. The “planning” went on, interrupted by unfortunate events such as the time Nuttall poisoned himself trying to exterminate insects in his apartment.
After the Boston Marathon bombing, the idea of pressure cooker bombs was raised. The undercover officer kept steering Nuttall towards this; Nuttall kept trying to veer off into grandiose rocket construction idea. By mid-June of 2013, they agreed that Nuttall and Korody would launch a pressure cooker bomb attack on Canada Day. Nuttall thought this meant postponing the operation for a year – he thought Canada Day was on June 1. The undercover officer stressed urgency. They made a shopping list for bomb-making supplies. The officer would drive Nuttall to a store. Nuttall would go in to make the purchase, but forget what he was there for. Eventually the supplies were gathered. Nuttal and Korody set about making the bombs. The undercover officer took the pressure cookers away to have the bombs assembled in a way that would work. Most of the “explosive” material was plasticine; the bombs could detonate but would only make a small, harmless “pop” rather than a large destructive “boom”.
Bomb assembled, the undercover officer assured Nuttall and Korody that Al Queda had false passports and an escape plan waiting. The pair was not entirely stupid. They worried they were being set up to be suicide bombers. They also fretted they had crossed a line and would be killed if they refused to set the bombs. Nuttall prepared for the big day by writing out his will. His only asset was his paintball equipment, which he left to the undercover officer it could be given to the mujahideen for weapons training.
On Canada Day, the undercover officer picked up the two putative terrorists and took them to Victoria. They drove around the city while Nuttall and Korody proposed and rejected possible locations. Eventually, the undercover officer took them to the Legislative Building grounds and pointed at some bushes. “There – put them there.” – right where the RCMP had set up the video cameras. Nuttall and Korody placed the bombs in the bushes. After they left, RCMP officers picked up the bombs. Nuttall and Korody were taken back to the mainland, stashed in a hotel, and arrested a few days later.
The undercover operation that caught the pair was described as a “Mr. Big” operation. This generated an indignant rebuttal from one of the inventors of Mr. Big, retired RCMP Inspector Al Haslett who pointed out that Mr. Big was invented to solve crimes already committed. Haslett told reporters, “Once it was determined that these two individuals weren’t capable of doing this particular crime without totally being led around by the nose by the undercover operators, who were, in fact, RCMP — that right there should have set off signals that we are overstepping our boundaries here.”
What should have been done
It was appropriate for the RCMP to take Nuttall and Korody seriously. Nuttall was wandering around talking violent talk. As I’ve mentioned earlier, just because someone is a pathetic loser does not mean they cannot be dangerous. Nuttall had convictions for violent crimes in his past. At the same time, the two were clearly incapable of organizing any sort of terrorist attack. This conclusion was quickly reached by many RCMP officers called on to help with the sting operation. Those officers directing the sting had to work really hard to maneuver the two of them to the grounds of the Legislature with harmless bombs. Herding cats was a lot easier than trying to keep these two moving towards an objective. The trial judge and his colleagues on the Appeal Court said the “crime” would not have happened if it had not been manufactured by the RCMP. They were right.
The leaders of the Mosque had the right answer. They told the RCMP that some sort of mental health intervention was needed for the two. That would have been a lot cheaper and more productive than trying to turn the pathetic pair into dangerous jihadist terrorists who could be captured and put on display.
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