In August 2012, Better This World filmmakers Kelly Duane de la Vega and Katie Galloway gave POV an update on Bradley Crowder, David McKay and Brandon Darby, and journalists Trever Aaronson and Petra Bartosiewicz updated POV on the state of domestic terrorism investigations.
Where are Brad and David today?
Kelly Duane de la Vega and Katie Galloway: Brad is living in the Bay Area working at a structural steel fabricator and continuing his political work. David is back in Austin working in graphic design and on feature films. Both are on parole and are not legally allowed to be in touch with each other. They both eagerly await the day they are… and consider each other close friends.
Where is Brandon Darby today?
Kelly Duane de la Vega and Katie Galloway: He’s become a conservative activist and speaker.
How have audiences reacted to the film?
Kelly Duane de la Vega and Katie Galloway: The film has generated a large and sustained audience in festivals, on television (it will be rebroadcast on POV this month after its initial screening on the 10th anniversary of 9/11), on Netflix and elsewhere. It has inspired a great deal of conversation.
Our hope was that the film would push people to debate the the implications of our desire to be safe after 9/11&… and at what costs — both financial and to our civil liberties. We feel that it has been a success on those terms and hope it will continue to generate debate as we head into the 2012 conventions and beyond.
What is the current state of domestic terrorism investigations?
Petra Bartosiewicz: The attacks of September 11, 2001 marked a sea change in U.S. law enforcement, particularly for the FBI, which is the lead agency charged with combating domestic terrorism. Within a year of the attacks, the FBI had reassigned nearly half of its field office positions formerly devoted to the “war on drugs” to the “war on terror” and launched nearly 3,000 new counterterrorism investigations. Since then, the bureau has been increasingly devoted to counterterrorism efforts: its current $8.1 billion budget allocates $4.9 billion to intelligence and counterterrorism, approximately $1.7 billion more than all other federal crimes combined. These vast expenditures have been in service of a “preemptive” strategy of trying to catch the terrorists before they next strike.
Over a decade into the war on terror, however, few of the FBI’s terrorism investigations have involved actual terrorist plots. Rather, nearly every one of the agency’s major post-9/11 cases have been sting operations where agents largely script the attack, provide the weapons, and encourage the inflammatory rhetoric that elevates the crime to the level of terrorism. Many of these investigations involve the use of undercover informants — who work for money or are seeking leniency on criminal charges of their own — and who in many cases have gone far beyond merely observing potential criminal behavior to encouraging and assisting individuals in participating in fictitious plots. According to the Center on National Security at Fordham Law School, there have been 138 terrorism or national security prosecutions involving informants since 2001. The pace of these informant driven terrorism investigations, like the one we see portrayed in Better This World, has increased during the Obama administration, with more than a third of such informant-backed prosecutions occurring in the past three years.
Has there been more widespread criticism?
Petra Bartosiewicz: While mainstream criticism of the FBI’s tactics in the domestic front of the war on terror remains muted, the agency’s aggressive use of informants and its preemptive sting operations have come under fire in recent years from individuals and groups within the Muslim community who say they are being unfairly targeted and profiled. Civil liberties groups point in particular to the FBI’s deployment of undercover informants to mosques throughout the country. In at least one case the ACLU and the Council on American-Islamic Relations have sued the FBI for sending an informant into a series of mosques in Southern California to gather information on worshippers based solely on race. Groups like CLEAR (Creating Law Enforcement Accountability & Responsibility), which is based out of the City University of New York School of Law, run “know your rights” workshops to educate individuals about what to do if approached by agents as a potential informant. A Pulitzer Prize-winning investigative series by the Associated Press last year also found extensive use of informants and other invasive surveillance techniques by the New York Police Department, showing that these tactics are not limited to just the federal level.
A 2005 report by the FBI’s Office of the Inspector General also found “serious shortcomings” in the bureau’s Criminal Informant Program. The report, which examined some 120 cases, including some related to terrorism, found that 87 percent of the investigations involving informants contained violations of the FBI’s own guidelines. Among the chief violations were the failure of agents to caution informants about the “limits of their activities,” the “failure to report unauthorized illegal activity” by their informants, and the issuance of “retroactive approvals” for illegal acts the informants had already committed.
How many cases do you think the FBI investigates each year?
Trevor Aaronson: How many cases the FBI investigates is tough to estimate, since so many leads or cases they pursue never result in public charges. Based on 10 years of prosecution data from 2001 to 2011, we can say the U.S. government indicted about 50 people per year on average on charges related to international terrorism — even when the connection to internal terrorism was an FBI informant posing as an international terrorist. That number has held true for 2012.
Petra Bartosiewicz: The FBI does not disclose how many terrorism-related investigations it conducts each year, but since 9/11 the agency has been granted broader powers that significantly lower the burden of proof necessary to launch such investigations. As of the 2008 revision to the DOJ’s Guidelines for Domestic FBI Operations, the FBI no longer has to demonstrate a “predicate” to an investigation, effectively giving the agency the power to spy on whomever it wishes, for however long it wishes, even if that individual has never committed a crime. The FBI’s investigations have resulted in more than one thousand terrorism related prosecutions since 9/11. The majority of these cases involve lower-level charges such as immigration fraud – lying on a visa application, for example. The agency’s highest profile cases – of which there are about 50 – nearly always involve a sting operation based on a fictitious informant-led plot. The agency requires agents to follow up on every lead they receive, no matter how unlikely.
Overall only a small fraction of the cases the FBI investigates on some level lead to actual terrorism charges. The leader of one FBI counterterrorism squad told the New York Times in 2009 that of 5,500 terrorism-related leads its 21 agents had pursued over the past five years, just 5 percent were credible and not one had foiled an actual terrorist plot. Meanwhile, the FBI has kept the details of the full scope of its informant network secret. It has not revealed the number of official and unofficial informants (the latter known as “hip pockets” in bureau parlance) on its payroll; or how much it budgets for these informants; or what kinds of targets they track, particularly in Muslim communities.
Have rules changed for how the FBI investigates these cases?
Petra Bartosiewicz: The FBI has long used undercover informants to infiltrate criminal networks and build cases against potential suspects, but in the domestic front of the “war on terror,” informants have come to play a far more proactive role in surveilling communities deemed suspect by the bureau. These informants operate in a post-9/11 environment of relaxed guidelines that allow the FBI to engage in lengthier and more extensive surveillance of individuals and communities with little or no evidence of any wrongdoing afoot.
Prior to 1976, when the first official Attorney General guidelines were created, informants were run, according to the official FBI manual, with an eye to “obtain maximum results and prevent any possible embarrassment to the Bureau.” The Attorney General guidelines were updated in 1980 to permit informants to commit certain crimes during the course of an investigation. After a major mob-related informant scandal in the late 1990s, Attorney General Janet Reno ordered another overhaul of the guidelines in 2001. But after the 9/11 attacks the rules were again loosened at the FBI’s request to reflect the new emphasis on intelligence gathering, and by extension, the bureau’s dire need for informants. In testimony before Congress in May 2002, FBI Director Robert Mueller argued, for example, that earlier rules, such as requiring agents to read “verbatim instructions” to their informants, “written in often intimidating legalese, [was] proving to have a chilling effect, causing confidential informants to leave the program.”
Trevor Aaronson: Informant rules haven’t changed to my knowledge since the adoption of the most recent Domestic Investigations and Operations Guide in late 2011.
Has there been any new criticism or analysis of domestic terrorism investigations?
Trevor Aaronson: ProPublica did a piece a few months ago that showed that the NYPD used trumped-up cases, as the FBI has done, to pat itself on the back. Rolling Stone and The New York Times have also had some columns on the topic recently.
Trevor Aaronson is author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, which will be released in January 2013. He is also co-director of the Florida Center for Investigative Reporting and a senior fellow at the Schuster Institute for Investigative Journalism at Brandeis University.
Petra Bartosiewicz is a freelance journalist whose forthcoming book, The Best Terrorists We Could Find, an investigation of a decade on the domestic front of the war on terrorism, will be published by Nation Books in 2013. Her most recent article on informants in The Nation magazine, from which this Q&A has been adapted, can be found here. You can find more of her work at her website, petrabart.com.