The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government's tactics. And not without one judge appending a long rebuke to her reluctant concurrence.

Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house "containing" at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas' sting operations always include fictitious armed stash house guards, otherwise the ATF's involvement would be unnecessary.

The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.

Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior -- both during the sting and during the trial.

Judge Jane Stranch's concurrence clearly communicates her displeasure with ATF sting operations in general, even if it's tempered by her inability to move the dial in the appellants' favor.

Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.

This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It's not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.

Stranch goes on to note multiple courts have found the ATF's actions troubling. But, so far, they've been unable to do much to stem the flow of stash house sting cases into the nation's courts. They've also been unable -- with rare, rare exceptions -- to provide any sort of relief for defendants caught up in the government's fictitious drug robbery plans.

Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.

[...]

[I]t seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They're also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF's insistence on pretending there's mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.

This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.

The ATF's sting operations have already drawn plenty of criticism. Not from law enforcement agencies who partner up with the ATF for easy busts or the DOJ which oversees them, but from almost everyone else, including federal judges. These stings result in government-made criminals who are led by undercover agents towards robbing fake stash houses of nonexistent drugs, cash, and weapons. The fun thing about the nonexistent drugs is it can be whatever amount ATF agents say it is. And that amount of drugs -- that exists nowhere but in the imagination of federal agents -- is used to determine lengths of sentences.

Judge Gerald McHugh trimmed back a sentence given a defendant caught in an ATF stash house sting, pointing out the crooked system allows prosecutors to play judge, jury and executioner -- all before the case even lands in court. As the judge notes, he has never run into a sting prosecution where the imaginary drug stash was below the statutory guideline triggering the longest sentences.

From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence.

Judge Otis Wright was even less kind, pointing out the government's standard operating procedure of goading desperate people into committing fake crimes that result in lengthy sentences. The feds then dangle plea bargains above their heads, hoping defendants will take the less onerous offer and skip the courtroom proceedings where the details of the stash house sting might be examined by skeptical judges and juries.

The end result of these stings? Nothing but people being locked up.

Zero. That’s the amount of drugs that the Government has taken off the streets as the result of this case and the hundreds of other fake stash-house cases around the country. That’s the problem with creating crime: the Government is not making the country any safer or reducing the actual flow of drugs. But for the Government’s action, the fake stash house would still be fake, the nonexistent drugs would still be nonexistent, and the fictional armed guards would still be fictional.... Instead, the Government comes close to imprisoning people solely because of their thoughts and economic circumstances rather than their criminal actions.

The other ugly truth about these sting operations is their consistent targeting of minorities.

A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

The ATF should be in the business of removing dangerous individuals from circulation. Instead, it preys on the less fortunate. Much like the FBI's continued material support of handcrafted terrorists, the ATF frequently has to provide the means, motive, plan, and pretty much everything else that might be required to rob a stash house.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings.

Drugs aren't being taken off the streets. The only weapons being seized are the ATF's. And plenty of truly dangerous people are still walking around while the ATF pushes minorities with money problems into plans composed of pure bullshit.

This poses more problems for the DOJ. It will at least have to defend itself against some new lawsuits in the future. Trump's DOJ may be less concerned about civil liberties violations than his predecessor, but his DOJ still has to answer for past violations.

This new report echoes Brad Heath's 2014 research into stash house stings.

At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.

The ATF operations raise particular concerns because they seek to enlist suspected criminals in new crimes rather than merely solving old ones, giving agents and their underworld informants unusually wide latitude to select who will be targeted. In some cases, informants said they identified targets for the stings after simply meeting them on the street.

The sad fact is it takes the private sector to put this damning information together. The ATF likes its easy busts and it likely knows its practices reek of racial bias. That's the only reasonable explanation for its deliberate avoidance of any sort of record keeping.

The ATF said it could not confirm those figures because the agency does not track the demographics of the people it arrests in stash-house cases.

Despite its lack of tracking, the ATF insists it's not participating in discriminatory behavior. It has nothing to offer in its defense, but it continues to insist it's doing the Lord's work with its stash house stings.

Current and former ATF officials insist that race plays no part in the operations. Instead, they said, agents seek to identify people already committing violent robberies in crime-ridden areas, usually focusing on those who have amassed long and violent rap sheets.

"There is no profiling going on here," said Melvin King, ATF's deputy assistant director for field operations, who has supervised some of the investigations. "We're targeting the worst of the worst, and we're looking for violent criminals that are using firearms in furtherance of other illegal activities."

The research available directly contradicts these statements. It's not just independent researchers who have noticed the profiling and the general uselessness of the sting operations. As was noted above, federal judges have arrived at the same conclusions. And federal judges have access to documents the DOJ refuses to release to FOIA requesters as well as the contents of cases still under seal.

More information continues to be pried from the DOJ's grip, thanks to discovery requests in stash house prosecutions. Everything that's been uncovered points to the conclusions drawn two years ago by USA Today and Brad Heath. The federal government is engaged in seriously troubling behavior, targeting poor minorities and fitting them for decades of imprisonment. And it can't even argue the end justifies the means. The drugs and weapons being "robbed" are imaginary. A stash house sting removes no drugs, no guns, and very few dangerous criminals from the streets. The ends are an illusion, meaning nothing about the means is truly justified.

We've already made our views clear on the horrible nature of the Trump administration's ban on travelers who were born in seven predominantly Muslim countries. The administration has been trying to defend the program, but its talking points are (once again) falling apart. For example, the idea that this only "inconvenienced" a tiny percentage of people and was only temporary — government lawyers have now revealed that over 100,000 visas were permanently revoked. Permanently.

But the story that's gotten a lot more attention is how Trump aide Kellyanne Conway went on TV last night and tried to back up another talking point: that this is no different than what President Obama did with Iraqi visas. That's not true, but we'll get to that. Even if it were true, Conway seemed to literally make up a terrorist attack that didn't happen, calling it the "Bowling Green Massacre."

Of course, there was no such massacre. This has resulted in lots and lots of social media mocking about the "massacre" that didn't exist. Some of the mocking is actually quite funny. And, of course, you might want to go donate to the Bowling Green Massacre Fund to support the victims.

Conway, of course, has said that she merely misspoke and had meant to say "Bowling Green terrorists" and then further pointed to a 2013 article about the two arrested Iraqis, claiming that it was a sign that "dozens" of terrorists could live in the US as refugees.

Even ignoring the ridiculous massacre claim, and accepting the idea that she just meant to say "terrorists", absolutely everything about this story fails to make her point unless you actively distort it. Let's dig in:

• The two Iraqis were "terrorists" set to carry out a bombing plot. Nope. It turns out that the two guys arrested were involved yet another of the FBI's "own plots." If you're new to this, for years we've covered how the FBI (rather than actually taking on criminal activity) has been inventing its own fake terrorist plots, and then using undercover agents and informants to bully dupes into "joining" the non-existent, FBI-created, FBI-financed, FBI-supplied "plots." We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again (so don't go in the comments and ask why this story is on Techdirt...)

  And the "Bowling Green Terrorists" story is the same exact thing all over again:

  From that fall through the following spring, the FBI informant invited Alwan to participate in 10 operations to send weapons or money to Iraq.

• There was no bombing plot against Americans. The FBI's "own plot" here didn't even involve attacks on America. It was just about sending (non-existent) money and weapons to Iraq:

  ...throughout their interactions with undercover FBI agents in 2010 and 2011, Alwan and Hammadi never discussed plans to attack anyone or cause destruction on U.S. soil. And while they were found guilty of attempting to provide material support to al Queda militants back in Iraq, the men never indicated that they were personally in contact with any militants, attempted to procure weapons for such individuals, or attempted to provide any of their own money to such individuals. Rather, they showed up when and where the FBI informant told them to and helped physically load decoy supplies into whatever they were allegedly being shipped from.

• There was never any support for the claim that they were part of a larger cell of terrorist refugees: Again, this was a tiny "plot" manufactured by the FBI to send weapons and money to Iraq, not to attack the US. And while Conway has been blowing up Twitter by claiming this ABC story proves that other refugee "terrorists" were here, that article is from 2013, and not a single other person has been arrested, no other terrorist plots associated with refugees (real or fake) have been found or (more importantly) taken place.

  Hell, even former DOJ spokesperson Matthew Miller pointed out that the ABC story "is garbage":

• Conway claimed that the media didn't report on the Bowling Green situation... but her proof that it happened is pointing to an article from ABC. Enough said on that.

• What Obama did in response to that was different: This has been a key talking point for those supporting the ban. They claim that no one complained about Obama "ban" for six months on people from Iraq in response to the Bowling Green "terrorists." Except that's simply false. As has been carefully reported in a ton of places, what President Obama did in 2011 was entirely different. There was no ban. There was no stoppage. A single type of visa just had more stringent vetting put in place that briefly slowed the throughput of applications. If you want the most thorough explanation I've seen for just how different the two situations are, read the analysis at Foreign Policy Magazine.

• Even if President Obama had done the same thing, people should still be upset: Because banning all people from a certain country or set of countries without a specific reason or threat, and (in the process) wreaking havoc on the lives of tons of people, including permanent residents and American citizens, deserves to be condemned as simply cruel.

In summary, Kellyanne Conway is using a non-existent "Bowling Green Massacre" to defend an inhumane policy, based on falsely arguing that two refugees, who were ensnared in a plot created by the FBI to send fake money and fake weapons back to Iraq (and not to attack America), were the tip of the iceberg of a bunch of refugee terrorists (who didn't actually exist) planning to attack America (which never happened) and because of that fake plot, fake massacre and fake terrorists, President Obama similarly banned people from Iraq -- which was something he didn't do. Is that about the sum of it?

The question the government doesn't want to answer is whether we're better off pursuing fake criminals or capturing the real ones. Law enforcement does both, but sting operations -- both of the terrorist and the drug variety -- have been increasing over the years, turning officers and agents into actors and stage directors.

The FBI has been crafting "terrorists" from a collection of outcasts, retirees, and the developmentally disabled for years. Canada's law enforcement is just as willing to score on unguarded nets, traipsing happily over the line between "highly questionable" and "actual entrapment" in its own terrorist "investigations."

The ATF and DEA have combined forces to drag weapons into drug dealing using elaborate sting operations to entice no small number of people to get prepped to rob a nonexistent stash house of imaginary drugs. This would be bad enough, as it often appears the ATF is willing to bust anyone that engages in speculation about stash house robberies. Adding insult to injury, the federal government recommends sentences based on the fake amount of fake drugs not actually found in the fake stash house suspects talked about robbing.

Judge Otis Wright tore into the government for its willingness to craft imaginary stash house robberies and followed it up by asking for convicted suspects to be locked up for real years, based on nothing more than what the government told defendants would be located in the fake stash house.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The government loves these cases because they're easy wins. There are no suspects to track down after a robbery. Instead, every suspect is safely housed in an undercover agent's vehicle, unwittingly waiting to be arrested. The suspects never lay low until the heat dies down, forcing the government to perform actual investigative work. Instead, the suspects are guided through the process of planning for a stash house robbery, including being given weapons to do so if they fail to provide their own. With massive sentences predicated on made-up drug quantities hanging over their heads, plea deals favorable to federal prosecutors are easy to obtain.

Another federal judge has plenty of problems with the government's stash house stings. Pennsylvania's Gerald McHugh has just issued a memorandum [PDF] trimming back the sentence handed to Clifton McLean, mainly due to the government's sentencing recommendation being based on the amount of drugs it said would be found at the fake stash house, rather than on anything tangible. [h/t Brad Heath]

Early last year, the judge took note [PDF] of the government's willingness to push people into actions they may not otherwise have taken.

Initially, there is no indication that McLean was involved in an ongoing criminal enterprise to commit stash house robberies prior to his initial contact with the government informant, and there is also no indication that the government believed it was infiltrating an already-existing conspiracy to commit such a robbery. Rather, in the best case scenario for the government, a newly created conspiracy was hatched when McLean allegedly approached the CI for the first time, though this initiation is less than certain. This factor weighs in favor of McLean.

[...]

The third factor, and certainly one of the most important, is the nature of government instigation or origination of the crime. The outcome of this inquiry is less clear. The government has asserted that the paid CI in this case was initially approached by McLean, who then inquired about whether the CI knew of any stash houses that McLean could rob. There are many questions surrounding this initial engagement. The encounter was not recorded, which is to be expected since the government asserts that the meeting was not planned, and a CI cannot be expected to wear a wire at all times. However, what this means is that the only person, aside from McLean, who can speak to what occurred at that meeting is the CI, who was not present to testify at the evidentiary hearing. While this is certainly a valid trial strategy, and may reflect government concern over the informant’s safety, I am hesitant simply to adopt this second-hand account of what occurred at this meeting, as told by the agents to whom the CI reported. I certainly do not discredit the testimony of the agents, but all they can testify to is what the CI relayed to them and their impression of his credibility. On top of this, the determination of whether McLean was inquiring about a stash house robbery is based on the CI’s account of slang that McLean used and the CI’s personal interpretation of that slang, with no additional context provided.

Unlike other stings the ATF has run, McLean showed more interest than most in pursuing a stash house robbery. But even though the judge didn't see enough to indicate entrapment, he's less pleased with the government's sentencing recommendations.

The structure of sting operations such as this is highly problematic. In practical terms, “sentencing discretion is delegated all the way down to the individual drug agent operating in the field.” United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994). Although the Government defends the specified amount as necessary to protect its agents, I find that rationale troublesome on several levels. First, law enforcement’s tactical concerns should not control either the severity of charges against a defendant or the range of sentences. To the extent that the Government constructs a crime, its elements should be related to a defendant’s culpability. Here, where the record is clear that McLean was “in for a penny, in for a pound,” specifying such a high amount does not truly bear on his culpability. Once the Government established that McLean was willing to engage in an armed robbery of any quantity large enough to resell, its core law enforcement objective was met.

[...]

The Government clearly had an interest in exposing the scope of his capability and connections, and in seizing as great a quantity of drugs as possible. No similar interest exists where the crime itself is fictional.

But if the objective is really to hit stash house sting suspects with the full force of sentencing guidelines, then the objective is "whatever nets the most years in prison." The judge here finds the government always conjures up a quantity of fake drugs that will generate the longest minimum sentence.

From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence.

[...]

[B]y the Government’s reasoning, the very nature of this type of undercover operation necessarily requires, for the safety of its operatives, a scenario that automatically triggers mandatory minimum sentences, even if the target of the sting would otherwise have taken the bait, and regardless of whether the suspect had ever before dealt in quantities of this kind.

The government's "evidence" of its fake drug amounts is nothing more than agents' testimony. They can swear they told the defendant there would be more than 5 kilos of drugs. It makes little difference that there were never any drugs to be stolen. The government then wraps itself in its "operative safety" blanket and hopes the judge won't question its inexplicable need to protect its agents by consulting drug sentencing guidelines. Judge McHugh, however, did take a look at it, and doesn't like what he sees -- a government agency pushing judges towards harsher sentences by insinuating anything less would be dangerous for law enforcement agents.

Preliminarily, I have an institutional concern that the Government couches the justification for its techniques in terms of officer safety. Unquestionably, undercover operatives are individuals of great commitment and courage who take risks average citizens would find intolerable. Their safety must be of paramount concern. At the same time, however, tying the physical safety of an agent to a mandatory triggering quantity of drugs is problematic. Such a rationale cannot help but inhibit any judge who must consider the implications of sting operations because no responsible judicial officer would ever want to place agents in harm’s way. But without in any way jeopardizing the safety of any agent, a court can certainly ask why, even if it is necessary for purposes of “credibility” to specify certain amounts as part of an operation, why is it necessary to charge the target of the investigation with such high amounts in every case?

[...]

In short, nothing about the actual record in this case validates the proposition advanced by the Government that substantial amounts of cocaine are fundamental to the success of its operation.

This not only prevents judges from exercising discretion, it also prevents the jury from doing its job properly.

Absent some constitutional prohibition, because the jury found McLean guilty of conspiring to possess 5 kilograms or more of cocaine, I am bound to sentence him accordingly. This underscores the due process concerns at the heart of sting operations. Since no drugs existed, McLean was charged with conspiring and attempting to possess the amount of drugs the Government decided to offer him, after he had agreed to participate in a fictional robbery. The Government made a deliberate choice concerning which offenses and quantities to charge, a choice that then constrains the jury.

The judge goes on to note the government even cited a decision finding against mandatory minimum sentences to support its argument for a mandatory minimum sentence. On top of that, it used the fake drug quantity to ensure it got the sentence it sought, leaving no room for meddling from troublesome judges or jurors.

It is certainly true that the jury “found” the defendant guilty of a conspiracy to possess greater than 5 kg of cocaine, but the Government assured such a result in advance by the script that it wrote and the charges that it brought. In that sense, a stash house sting operation is the “perfect” crime, at least from the standpoint of the prosecution, in that it predetermines both verdict and sentence.

In the end, Judge McHugh does what he can… which isn't much. He boots the government's mandatory minimum-triggering claim of five kilograms and uses a lower amount. In total, it only takes away five years of McLean's 19-year sentence. But McHugh shows his courtroom won't be a place where the government can expect easy wins with prosecutions where the fix is in from the moment the indictment drops.

Some courts have suggested that so long as there is a “reasonable” explanation for the amount of drugs specified in an undercover operation the Government’s conduct will pass constitutional muster. I am not prepared to adopt such an approach where the Government’s premise cannot be tested in any meaningful way and is refuted by specific evidence of record...

To the extent that principles of Due Process are meant to be a check on government power, there is no more fundamental interest than liberty. A sting operation that constructs a crime implicates liberty interests in a unique way, in that the Government seeks out its citizens for the purpose of testing their willingness to commit a criminal act. There can be no greater manifestation of the coercive power of Government than creating what is, in effect, a morality test, while specifying the penalty for failing that test in advance.

A check on government power is what's needed. Very few courts have been willing to place themselves between defendants and law enforcement agencies that would rather create criminals than go after those already in circulation.

Last week, we wrote about the FBI arresting John Booker, who was involved in yet another of the FBI's own plots. At the beginning of our post (and the criminal complaint) against Booker, we noted how a year ago Booker had tried to join the army, and had then been denied after posting stuff to his Facebook page about how he was going to "wage jihad" and planned to die. It was noted that the FBI visited him at that time, and we found it odd that if he was such a threat, why wasn't he arrested then. Instead, it appears that months later, the FBI got together and concocted a ridiculous plot for Booker to join, in which the FBI itself did all the planning.

What he hadn't realized was that when the incident happened last year with Booker and his Facebook page, there was actually news coverage about it, with the FBI actually saying that they had investigated and Booker was no threat at all:

The alert, which was sourced to “an FBI agent,” stated it was distributed to “inform and protect officers who may encounter this individual or others exhibiting the same aspirations.”

Four days later, on Tuesday, the FBI downplayed the "routine" alert, saying it was not actively searching for Booker. The agency said it did not believe he posed an "imminent threat," despite the original alert's invocation of the Fort Hood shooting, where an Army psychologist killed 13 and wounded more than 30 on a Texas military base in 2009.

“We have interviewed this individual,” an FBI spokesman said. “There is not a manhunt and there never was one. There is no imminent threat to public safety, nor should the public be concerned that this threat exists from an individual at large."

The reporter who wrote that above now works at the Intercept and has revealed more details, including the FBI's Situational Information Report after it had interviewed Booker a year ago. It notes that not only had Booker checked himself into a mental health facility a month earlier, but also that he basically had no way of carrying out any threat:

BOOKER does not have access to a vehicle or other form of transportation at this time, nor is there evidence he possess firearms.

It appears that Booker only became a real threat... once two FBI informants showed up and created the plot for him.

Last week, as you may have heard, the Justice Department breathlessly announced that it had uncovered and broken up a terrorist plot against the government, leading to the arrest of a 20 year-old man, Christopher Lee Cornell, in Ohio. According to the FBI, Cornell was planning to go to the US Capitol and kill government officials. As often happens with these kinds of announcements, the press was quick to jump in and fuel the narrative of some big terror plot that the FBI was able to miraculously disrupt at the last minute.

For years now, we've pointed out a pattern of how nearly every big headline about the US disrupting a domestic terrorist attack was almost always about the FBI creating its very own plot, and then pressuring and cajoling some vulnerable, poverty-stricken, desperate Muslim (almost always Muslim) young men into "joining" this plot. This happens despite those individuals rarely having expressed direct interest in any sort of terrorist activity, or having any connections or means to carry out such activity. But with continued pressure from "FBI informants" (who tend to either by paid by the FBI or are trying to reduce punishment for other crimes they've been charged with -- or both), eventually these men agree to take part in a "plot" that was entirely designed by the FBI and had no chance of ever happening. We've written about similar occurrences over and over and over and over and over and over and over and over and over and over and over and over again.

It looks like this one is more of the same. As The Intercept reports:

 The alleged would-be terrorist is 20-year-old Christopher Cornell, who is unemployed, lives at home, spends most of his time playing video games in his bedroom, still addresses his mother as “Mommy” and regards his cat as his best friend; he was described as “a typical student” and “quiet but not overly reserved” by the principal of the local high school he graduated in 2012.

Not only did he just convert to Islam a few months ago (and there's no indication that he ever actually attended the mosque that he claimed to have joined), but the details of the overall story certainly match the pattern of an FBI made up plot:

The affidavit filed by an FBI investigative agent alleges Cornell had “posted comments and information supportive of [ISIS] through Twitter accounts.” The FBI learned about Cornell from an unnamed informant who, as the FBI put it, “began cooperating with the FBI in order to obtain favorable treatment with respect to his criminal exposure on an unrelated case.” Acting under the FBI’s direction, the informant arranged two in-person meetings with Cornell where they allegedly discussed an attack on the Capitol, and the FBI says it arrested Cornell to prevent him from carrying out the attack.

For someone supposedly plotting a terrorist attack, Cornell didn't seem particularly subtle. The affidavit notes that Cornell first came to their attention because of his tweets in support of ISIS. Then the informant reached out to him and began pushing the plot.

Yet, it's not just the mainstream press that is exaggerating this story. Speaker of the House John Boehner wasted little time in claiming that Cornell was only discovered because of "the FISA program."

“The first thing that strikes me is that we would’ve never known about this had it not been for the FISA program and our ability to collect information for people who pose an imminent threat.”

Except, uh, no. The dude was posting on a public Twitter feed and then had a government informant reach out to him. It doesn't look like anyone needed any particular "FISA program." Thankfully, at least some reporters quickly called bullshit on this, noting that the facts of the case don't at all match up with a situation in which any sort of FISA-approved surveillance effort was needed.

Instead, it seems clear that this is just blatant and cynical fear-mongering by John Boehner in the lead-up to the fight to renew certain provisions of the PATRIOT Act, including Section 215, which is the program under which the NSA and FBI get bulk phone records from phone companies (and, most likely, other bulk records). As Julian Sanchez points out in the link above, there seems to be no reason to have used data collected under Section 215 in this case:

According to the criminal complaint, it was an informant hoping to reduce his own criminal sentence who brought Cornell to the Bureau’s attention. Nor, indeed, was Cornell particularly subtle: Under the Twitter handle ISBlackFlags, he pseudonymously voiced support for the Islamic State and violent jihad. If that’s true, then while it would hardly be surprising if Cornell’s phone records were reviewed at some point in the investigation, it’s hard to see how a bulk telephone database could have been essential to identifying him. Once Cornell had been identified, of course, traditional targeted intelligence or law enforcement authorities would have been sufficient to allow investigators access to his metadata—or, for that matter, his online communications.

But, knowing that the fight over renewing Section 215 is going to be a big deal later this year, it appears that Boehner used this as a bogus excuse to start laying the groundwork for such an approval. Remember, that multiple groups -- including the White House's own review board and the government's Privacy and Civil Liberties Oversight Board -- couldn't find any evidence that the 215 program was necessary in stopping a single domestic terrorist attack. The only case that it was really involved in was a guy in California sending some money back to Somalia.

When the fight to renew 215 really ramps up, this lack of a success story is likely to come up. And, thus, it appears that the supporters of the surveillance state are desperately in need of some "success stories" for the 215 program, and Boehner seems to have rushed out and grabbed the first available one and he's going to milk it for all its worth.

“I’m going to say this one more time because you’re going to hear about it for months and months to come as we attempt to reauthorize the FISA program: Our government does not spy on Americans — unless they are Americans who are doing things that frankly tip off our law enforcement officials to an imminent threat. It was our law enforcement officials and those programs that helped us stop this person before he committed a heinous crime in our nation’s capital.”

Except, no, it wasn't. This sounds like yet another of the government self-built plots that had no chance of ever taking off, and the only reason Cornell, a homebound videogame player who calls his mother "Mommy," got involved was because he was a gullible, disenchanted kid who spouted off some stupid statements on Twitter, making him easy prey.

Ladies and gentlemen: your Federal Bureau of Investigation.

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Eric McDavid was sentenced to nearly 20 years in prison for alleged eco-terrorism, becoming the first person ever indicted for ELF (Earth Liberation Front)-related charges. WAS. He's now free to continue his interrupted life, thanks to the FBI's dishonesty.

Then, the government changed its mind, conceding that thousands of pages of evidence that should have been given to McDavid's defense attorney years ago – including love notes to a young woman who turned out to be an FBI plant – had instead been secretly held in an FBI file in Sacramento until recently. The best course of action, the government ultimately decided, was to set McDavid free.

"I've never heard or seen of anything like this," said U.S. District Judge Morrison C. England Jr., who originally sentenced McDavid. The judge ordered him released in accord with an unusual agreement between prosecutors and his appellate attorneys.

The judge demanded answers from the prosecution as to how this could have happened. From what's reported by the Sacramento Bee, it appears those answers -- like the previously-missing evidence -- were nowhere to be found.

"I sat through the 10-day trial of Mr. McDavid," a clearly exasperated England said, sometimes stopping to hold his head in his left hand.

"I know he's not necessarily a choirboy, but he doesn't deserve to go through this, either. It's not fair."

Officials from the US Attorney's office joined Assistant US Attorney Andre Espinosa, but the brain trust came up with nothing.

Espinosa and John Vincent, chief of the U.S. attorney's criminal division, said the documents had remained in the FBI's possession in a file in Sacramento.

"We don't know exactly why they weren't turned over," Vincent told the judge.

Great answer. Even better, the government contends that even if it had managed to turn over the evidence in a timely fashion, it still probably could have secured a conviction. But actions speak louder than this attempt to wedge an undeserved last word in sideways. McDavid is a free man after pleading guilty to a single conspiracy charge. And even that's questionable. From what's been turned over, it appears McDavid was another one of the FBI's "homegrown terrorists."

Despite Thursday's guilty plea, his supporters say McDavid was never guilty of anything more serious than falling for a comely 18-year-old woman he met at an Iowa meeting in 2004, a woman who later prodded him to take violent action against government targets with promises that they would later consummate a romantic relationship.

The woman, named in court documents and at the trial only as "Anna," turned out to be an FBI informant and played a critical role in McDavid's arrest, as well as his release Thursday… Court documents spell out in detail how "Anna" provided money, transportation, housing and food to McDavid and his two co-defendants over an 18-month period, evidence his lawyers say shows the entire case was about entrapment rather than stopping terrorist attacks.

McDavid's lawyer got in his own last word, a bit more deserved than the US Attorney General's office.

"I hope she's not ruining someone else's innocent life."

Keep hope alive. This is has been the main component of the FBI's counterterrorism efforts: plots designed, built and put into motion by FBI informants and undercover agents, utilizing whatever weak-willed or weak-minded individuals they happen to talk into participating. Feeling any safer, America? Self-motivated terrorists roam free while the FBI plays dress-up with the easily-flattered and easily-duped.

The three targeted in this investigation were urged on by "Anna." None of them had previous convictions. The arrests followed the purchase of household chemicals, supposedly for bomb-making. This was the culmination of a two-year "investigation" during which "Anna" repeatedly pushed the three men towards bombing targets in the area. Much of what was presented to the jurors was personal testimony by Anna that could not be corroborated by video or audio recordings (Anna frequently wore a wire and many of the meetings took place in her cabin, which had surveillance cameras installed). So, the FBI presented plenty of hearsay while withholding thousands of pages of evidence. Our words against yours.

In the end, "our word" wasn't enough. McDavid -- more lovestruck fool than eco-terrorist -- is free and the world is no more dangerous than it would have been if he was incarcerated. Any bets that the FBI will be more forthcoming in the future? I'm guessing it won't. Why should it? All it lost here was someone it had groomed for arrest. It didn't lose a threat, or a public enemy. Win a few, lose a few. It will continue to play terrorist charades because it pays as much as real investigative work, but has a much higher chance of success.

As we recently discussed, it's becoming readily apparent that the FBI's most vaunted counter-terrorism wins are almost all stings for "crimes" they made up all by themselves and then coerced others to join. Even for those that don't have a problem with this kind of practice in theory, it has to be jarring to learn just how many of these "terrorists" are either suffering serious mental or social illnesses or have had their confessions beaten out of them. By all appearances, it looks pretty clear that the FBI is bumping up their "win" statistics on the backs of these highly questionable stings.

So of course local law enforcement is getting in on the action as well. Take the police in Washington D.C., for instance, who are featured in a Washington Post story detailing how they invent armed robbery plans whole-cloth and then recruit civilians to join up shortly before arresting these future-criminals. Some of the plots the police of devised are quite detailed and terrifying, involving robbing liquor stores and targets that are supposedly drug dealers. After discussing the plans with an undercover cop, everyone is then arrested and charged with a variety of "conspiracy to commit" charges. According to some experts, the government is on firm legal ground with regards to entrapment.

The government is on solid legal ground, experts say, when it comes to fending off allegations that suspects were set up — or entrapped — by the police. Even if the government entices the defendant, the target has to show that he was not predisposed to commit the crime.

Sure, and if you're a defendant in one of these cases, good luck convincing anyone that you didn't have a predisposition for the crime you were tricked into thinking you were going to commit. Again, it's easy to opine that these are bad people, but that doesn't take into account mental illness and pressure applied by undercover officers eager to bolster their arrest statistics. According to reports, that kind of pressure included giving minors alcohol and/or taking them to strip clubs, because nobody has ever made themselves out to be something they're not when drunk or in the presence of naked members of the opposite sex. The question becomes whether anything like the made up crime would have ever happened had it not been first invented by the police.

“When you have the government offering guns or the getaway car and making it really attractive, you have to ask: Is this an opportunity that would have really come around in real life? Would this person have been able to put together this type of crime without government assistance?” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York who has studied undercover policing tactics.

It's even worse when the police engineer aspects of the made up crimes in the sting in order to manufacture longer sentences for the would-be criminals they ensnare.

Tinto and others also take issue with the government’s ability to essentially engineer tough penalties by controlling the details of the made-up crime. Part of the reason the District cases have been so successful, according to defense lawyers, is that the potential jail time for the federal conspiracy charge is steep enough that many defendants are more inclined to make a deal with prosecutors than risk losing at trial.

The global problem in all of this is the aim: this is all about bolstering crime-fighting statistics rather than responding to any actual crimes or criminals. Will the police likely get some violent criminals off the streets with this tactic? Sure, but so could actual police work and, as I indicated, that isn't what this is all about. On top of that, the questions raised by the tactic are serious and some of the people caught up in all this probably aren't benefited most by engineered jail time. Add to all that questions about who the police are generally going to look towards as targets of this kind of sting operation (gasp, minorities), and we should be left wondering why they aren't fighting the crime that exists rather than making up crime that otherwise wouldn't.

Human Rights Watch has just published a report containing the facts needed to back up everyone's suspicions that the FBI counterterrorism efforts are almost solely composed of breaking up "plots" of its own design. And the bigger and more high-profile the "bust" was, the better the chance that FBI agents laid the foundation, constructed the walls… basically did everything but allow the devised plot to reach its designed conclusion. (via Reason)

All of the high-profile domestic terrorism plots of the last decade, with four exceptions, were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot.

Of those four exceptions, two (Boston Bombing/LAX shooting) were successfully pulled off. Feeling safer with the g-men's increased focus on preventing terrorist attacks?

Within the report is even more damning information that shows the FBI preyed on weak individuals in order to rack up "wins" in the War on Terror.

Although an FBI agent even told Ferdaus’ father his son “obviously” had mental health problems, the FBI targeted him for a sting operation, sending an informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded, suffering weight loss so severe his cheek bones protruded, loss of bladder control that left him wearing diapers, and depression and seizures so bad his father quit his job to care for Ferdaus. He was eventually sentenced on material support for terrorism and explosives charges to 17 years in prison with an additional 10 years of supervised release.

Those that weren't weak enough were broken.

Abu Ali, a US citizen, was swept up in a mass arrest campaign in Saudi Arabia in 2003. Ali alleged being whipped, denied food, and threatened with amputation, and ultimately provided a confession he says was false to Saudi interrogators.

Ali was given a life sentence and is currently serving it at a Supermax prison.

Uzair Paracha was held in solitary confinement for nearly two years before he was convicted on charges of material support. Nine months after his arrest and while he was refusing to take a plea deal, the federal government moved Paracha to a harsh regime of solitary confinement pursuant to Special Administrative Measures (SAMs)—special restrictions on his contact with others imposed on the grounds of protecting national security or preventing disclosure of classified material—ostensibly due to ties with Al-Qaeda. For a time, Paracha was only permitted to speak to prison guards.

As much as the DHS and FBI have stated concerns about "radicalization" and domestic terrorism, those captured in FBI sting operations were strongly pushed in that direction by informants and undercover agents. The FBI created threats where none existed.

In many of the sting operations we examined, informants and undercover agents carefully laid out an ideological basis for a proposed terrorist attack, and then provided investigative targets with a range of options and the weapons necessary to carry out the attack. Instead of beginning a sting at the point where the target had expressed an interest in engaging in illegal conduct, many terrorism sting operations that we investigated facilitated or invented the target’s willingness to act before presenting the tangible opportunity to do so. In this way, the FBI may have created terrorists out of law-abiding individuals.

This sort of activity should have been treated as "own goals" by the agency and some of the more credulous press. Instead, these busts are touted as evidence of the agency's superior skill and effort, something more closely related to extolling the prowess of someone who has just scored on an empty net.

The FBI took a man whose main hobbies were "watching cartoons" and "playing Pokemon," a man who a forensic psychologist described (during the trial) as "highly susceptible to the suggestions of others" and fashioned him into a supposed terrorist. The planned subway bombing never happened, thanks to the FBI's keenly-honed ability to capture terrorists it created. Arrested with the would-be subway bomber was his "co-conspirator," a high school dropout with drug problems and clinically-diagnosed paranoid schizophrenia.

There's much, much more in the report. Human Rights Watch's investigative work was made extremely difficult by the FBI's disingenuous counterterrorism efforts over the last decade, which made many in the Muslim communities affected deeply suspicious of people who asked too many questions.

There's nothing to celebrate about victories like these. The emphasis on creating plots just to shut them down diverts resources from actual threats -- ones arising without huge amounts of FBI prompting. All this does is ensure the agency's anti-terror funding remains intact -- money that will be largely wasted on the FBI's sting operation Ouroboros. And while the FBI plays with its terrorist dress-up dolls, the real threats will go undetected.

The self-assured nature of federal prosecutors can be quite insane. We've talked many times in the past about how the criminal justice system is completely rigged against anything remotely looking like fairness. From grand juries to plea bargains to sentencing guidelines, the entire system is designed to make anyone who enters it presumed guilty until their spirit is crushed and destroyed. In the last few years we've noted an even more disturbing trend: law enforcement creating their own plots, in which they lure (often gullible or marginalized) individuals into a convoluted criminal "plot" in which nearly all of the other players are fellow law enforcement folks (or informants). They then build up this big plot... wait until it's about to go off (knowing it'll never actually happen) and then arrest those they lured into it. It has happened over and over and over and over and over and over and over and over and over and over and over and over again. Courts have found that this is technically not "entrapment," even though it sure appears to come close to it.

That's why we were quite happy to see a federal judge finally call out one of these questionable plots. Earlier this year, we wrote about Judge Otis Wright (whose name you may recall from the beatdown he gave Team Prenda) calling out one of the ATF's homegrown criminal plots for "outrageous government conduct" in creating a "made up crime." Wright detailed how the government picked details of the entirely fictional plot at levels to guarantee felony charges, and also accused it of "trawling... poverty-ridden areas" in a "fishing expedition" dangling huge riches on people who have no money. He further noted that nearly all of the elements of "the crime" were done by the ATF:

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

[....] ...here, the undercover agent provided a getaway van, putative safe house, and—most important of all—the entire scheme and its fictitious components. He also alleviated Defendants’ logistical and safety concerns when he “proposed that he would be inside the stash house at the time of the robbery . . . .” ...

So, how did the DOJ respond to this setback? Well, via Brad Heath, we see that the DOJ has gone to the appeals court to demand a new judge, accusing Judge Wright of being biased. Seriously.

Reassignment is warranted “to ensure not only the existence, but the appearance, of impartiality,” such as when “the district judge . . . may be viewed as having assumed the role of advocate.” ... Here, as Dunlap himself has suggested..., the district court’s tone and actions have created the appearance of hostility to the government.

As set forth earlier, the court’s tone has not been one of impartiality. To be sure, a holding of “outrageous” conduct necessarily entails strong language—condemnation is built into the very standard. But even so, the court’s comments are extreme: accusing the government of “lead[ing] us into temptation”; of “stoop[ing] to the same level as the defendants it seeks to prosecute” and “creating crime”; of targeting people simply for being poor or for having bad thoughts; and of being “cold-blooded and heartless.” Similar is the court’s refrain that the crimes of conviction were “fake,” “trumped up,” “cut from whole cloth,” or “made up”—after all, it was Hudson who initiated contact, the defendants showed up with guns, one of which Whitfield boasted could cut a man in half.... Similar, too, is the court’s repeated criticism of the investigation as a “trawling” expedition where bait was “dangled” “irresistibl[y]” before poor, ignorant defendants.

It is not just that the substance of the court’s accusations is wrong: merely erring is not grounds for reassignment. It is that the tone creates the appearance of hostility toward a government “oppressor.” ... And that tone is not limited to the court’s description of historical facts: it has been also dismissive to government counsel during hearings.

In short: because the judge called out the ATF and the DOJ for its outrageous behavior, that proves that the judge is biased and therefore unfit to hear the case. Only judges that accept our outrageous behavior are reasonable and should be allowed to hear our cases.

This is the attitude of federal prosecutors. The entire system is already rigged to support us, so if a judge somehow actually pushes back on something we did, then clearly he's the problem, rather than our outrageous behavior.