Race, Entrapment, and Manufacturing "Homegrown Terrorism"
At what point does offensive speech cross the line from being constitutionally protected to criminal? Rarely—would be the response of a free speech purist. Indeed, the First Amendment is intended to protect unpopular, offensive, and even subversive speech. Although this lesson may be taught to American schoolchildren, it is not the lived experience of Muslim dissidents, especially at the more extreme end of the political spectrum. And yet, the white extremists whose racist and anti-government hate speech has skyrocketed since the election of President Obama have not received attention commensurate to their growing influence. Footnote #1 content: See Confronting White Supremacy (Part I): The Consequences of Inaction: Hearing Before the Subcomm. on C.R. & C.L. of the H. Comm. on Oversight & Reform, 116th Cong. 9–19 (2019) (statements of Susan Bro, President/Board Chair, Heather Heyer Foundation; George Selim, Senior Vice President of Programs, Anti-Defamation League; Michael German, Fellow, Brennan Center for Justice; Omar Ricci, Chairperson, Islamic Center of Southern California; Roy L. Austin, Partner, Harris, Wiltshire & Grannis, LLP; and Robby Soave, Associate Editor, Reason Magazine); Confronting Violent White Supremacy (Part II): Adequacy of the Federal Response: Hearing Before the Subcomm. on C.R. & C.L. of the H. Comm. on Oversight & Reform, 116th Cong. 20–30 (2019); EXTREMISM & RADICALIZATION BRANCH, DHS, RIGHTWING EXTREMISM: CURRENT ECONOMIC AND POLITICAL CLIMATE FUELING RESURGENCE IN RADICALIZATION AND RECRUITMENT (2009). This Department of Homeland Security report led to the marginalization of its author Daryl Johnson, who was removed from his post shortly after its publication due to backlash from his colleagues. See Lois Beckett, ‘Blood on Their Hands’: The Intelligence Officer Whose Warning Over White Supremacy Was Ignored, GUARDIAN (Aug. 8, 2019, 1:00 PM), https://www.theguardian.com/us-news/2019/aug/07/white-supremacist-terrorismintelligence-analyst [https://perma.cc/Y8LW-FWXF]. Only after they seized the United States Capitol in January 2021 did the government shift its domestic security priorities to meaningfully address the threat posed by far-right-wing groups. Such disparate treatment of political extremists of different racial and religious identities prompts the question: Is the problem one of law or of law enforcement? This Article argues that selective counterterrorism enforcement allocates disproportionate resources targeting Muslim communities; all the while, entrapment law fails to protect these communities from predatory sting operations. The extent to which otherwise First Amendment-protected activities are criminalized is most glaring in post9/11 terrorism prosecutions in which Muslim defendants ensnared in sting operations have raised an entrapment defense. Specifically, a defendant’s social media posts—prior to the sting operations—are used as evidence of his predisposition to commit a terrorist act, notwithstanding that the plot was developed and led by an informant or undercover agent. Offensive speech is bootstrapped into showing a defendant’s willingness to commit a crime. Although numerous journalists and lawyers have come to this conclusion, the empirical basis is underdeveloped. This Article empirically tests, based on the author’s database of 646 federal terrorism-related cases brought against Muslims between 2001 and 2021, Footnote #2 content: The database of federal terrorism-related cases brought against Muslims between 2001 and 2021 is on file with the author. the normative claim that the Federal Bureau of Investigation (FBI) is manufacturing a “homegrown terrorism” threat through aggressive sting operations that prey on young Muslim men who are vulnerable for myriad psychological, economic, and political reasons. Footnote #3 content: This normative claim is made by others, including investigative journalist Trevor Aaronson and the Coalition on Civil Freedoms. See generally TREVOR AARONSON, THE TERROR FACTORY: INSIDE THE FBI’S MANUFACTURED WAR ON TERRORISM (2013); COAL. FOR CIV. FREEDOMS, THE TERROR TRAP: THE IMPACT OF THE WAR ON TERROR ON MUSLIM COMMUNITIES SINCE 9/11 (2021), https://uploads-ssl. webflow.com/614ac1d8e9f8db7ee5ba75b3/615fe1c9d2db9c6a0a2627f5_THE%20TERROR%20TRAP %20-%20FINAL.pdf [https://perma.cc/LL38-M4N4]. However, this Article is the first test of the normative claim in an empirical study of 646 federal terrorism-related prosecutions against Muslim defendants from 2001 to 2021. This normative claim is made by others, including investigative journalist Trevor Aaronson and the Coalition on Civil Freedoms. However, this Article is the first test of the normative claim in an empirical study of 646 federal terrorism-related prosecutions against Muslim defendants from 2001 to 2021. The analysis reveals a criminalization of religious and dissident Muslims who have engaged in extremist speech but who have not engaged in violence without government ensnarement, while far-right supremacist groups are simultaneously granted license to plan politically motivated violence, culminating in a siege on the U.S. Capitol. Footnote #4 content: See Mark Mazzetti, Helene Cooper, Jennifer Steinhauer, Zolan Kanno-Youngs & Luke Broadwater, Inside a Deadly Siege: How a String of Failures Led to a Dark Day at the Capitol, N.Y. TIMES (June 8, 2021), https://www.nytimes.com/2021/01/10/us/politics/capitol-siege-security.html; see also Andrew Selsky, Capitol Attack Reflects US Extremist Evolution Over Decades, AP NEWS (Jan. 23, 2021), https://apnews.com/article/capitol-siege-riots-coronavirus-pandemic-b7123f0a223c6ed8098a0 3b459120c83 [https://perma.cc/PA3B-LXN6]; Ryan Devereaux, Capitol Attack Was Culmination of Generations of Far-Right Extremism, INTERCEPT (Jan. 23, 2021, 8:00 AM), https://theintercept.com/ 2021/01/23/capitol-riot-far-right-extremism/ [https://perma.cc/M6BK-LNTT].
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