The Cleveland FBI, terrorism stings, and the delicate balance between entrapment and public safety

CLEVELAND, Ohio -- Federal agents and prosecutors described the arrest of a man accused of plotting a Fourth of July terrorist attack in Cleveland as the latest example of authorities heading off a potential threat before it could come to fruition.

But in the days since the arrest, critics have questioned if Demetrius Pitts had the capability to carry out the attack he is accused of plotting. Pitts had been staying at a rehabilitation facility in Maple Heights, and an FBI informant gave him a bus pass and a cellphone to conduct reconnaissance in Cleveland, according to an affidavit filed in federal court.

Federal officials argue they must be proactive in pursuing counter-terrorism cases because the risks involved are so great. In the Pitts case, FBI special agent in charge Stephen Anthony said authorities could not "sit back and wait for Mr. Pitts to commit a violent attack."

"We don't have the luxury of hoping an individual decides not to harm someone or get others to act, especially when his continued, repeated intentions were to do exactly that," Anthony said during a news conference announcing Pitts' arrest.

Civil rights advocates and defense attorneys counter by saying the Pitts case may be the latest in a series of controversial cases involving Muslim persons labeled as homegrown terrorists. They expressed concern that many counter-terrorism prosecutions amount to "sting operations" where undercover agents lead vulnerable people who exhibit signs of mental illness to the edge of committing crimes.

"This case strains credulity," said Julia Shearson, the executive director of the Cleveland chapter of the Council on American-Islamic Relations. "We don't have all the information yet, but on the face of the complaint, it looks like [Pitts] had very limited means to carry this out."

Critics of the Pitts case acknowledge there are legitimate terrorist threats that must be investigated and prosecuted. But they question if the 48-year-old man represented a real threat prior to his arrest.

Pitts expressed a desire to join al-Qaida and kill U.S. citizens -- including military personnel and their families -- as he told the undercover agent of his plot to conduct a July 4 attack in Cleveland, according to an affidavit filed in federal court. He told the undercover agent he planned to fill a van with explosives, the affidavit says.

The FBI first detected Pitts through threatening Facebook posts, the affidavit says. That fact alone raises questions about the seriousness of those threats, said Stephen F. Downs, an attorney and co-founder of Project SALAM. The New York City-based project provides legal support to Muslims and maintains a database of domestic terrorism prosecutions.

"This doesn't suggest a real terrorist. A real terrorist isn't going to do that," Downs said about Pitts' online posts. "A bank robber isn't going to put up a Facebook post saying he's going to rob a bank."

Critics also questioned the fact that the affidavit does not clearly connect Pitts to anyone other than the undercover agent. The affidavit details how the agent discussed a basic plan for an attack with Pitts, and helped Pitts acquire the bus pass and cellphone he needed to conduct reconnaissance in Cleveland.

U.S. Attorney Justin Herdman said after Pitts' arrest that his decision to accept the cellphone and bus pass, and then use them to take photos and videos of Cleveland, strengthen federal prosecutors' case against him.

"When you've got someone repeatedly expression an intention to commit a violent act, and then takes steps to further an attack - like in this case conducting reconnaissance and filming videos - it absolutely weighs in favor of a provable federal criminal violation," Herdman said.

Critics see pattern of questionable counter-terrorism cases

The Human Right Watch and Columbia Law School's Human Rights Institute authored a 2014 report that criticized the FBI for using "aggressive sting operations" against Muslims accused of plotting homegrown terrorist threats. Such prosecutions also have the effect of making the Muslim community suspicious and fearful of authorities, said Tarek Ismail, a co-author of the report.

"The vast majority of these cases look suspiciously at Muslim communities, and have criminal justice solutions that tear those communities apart," said Ismail, now a senior staff attorney for the Creating Law Enforcement Accountability and Responsibility project. The project, housed at the City University of New York Law School, provides legal services to the Muslim community and others affected by counter-terrorism policies and practices.

In Northeast Ohio, at least two similar cases have drawn scrutiny in the last six years.

Back in 2012, the FBI arrested five men accused of plotting to blow up the Ohio 82 bridge, which connects Brecksville with Sagamore Township. In that case, a paid FBI information discussed possible targets with the five men - members of the Occupy Cleveland movement - and introduced them to an undercover agent to buy what they thought were plastic explosives.

In 2015, the FBI arrested a Sheffield Lake man accused of buying an AK-47 from an undercover agent for the purpose of supporting the Islamic State terrorist group. Amir Al-Ghazi, 41, later pleaded guilty to terrorism-related charges. Last month, a federal judge sentenced him to 16 years in prison.

The FBI began monitoring Al-Ghazi in 2014, after he pledged his support to the Islamic State on social media. He tried for months to buy an assault rifle to use as a "prop" in propaganda videos, and thought he succeeded when he paid $400 to buy an AK-47 from an undercover agent in North Olmsted. The FBI subsequently arrested Al-Ghazi.

Civil rights advocates argue that investigators must be mindful that there is a difference between saying something and doing something, said Laura Pitter, the deputy director of Human Rights Watch's U.S. program.

"There's a big difference between talking big and claiming that you want to carry out dangerous acts, and actually doing them," Pitter said. "It's important that the government only be going after individuals when there is real evidence [of a threat]. We've seen that isn't always the case."

From authorities' perspective, it's critical to investigate suspicious online posts because the internet represents "a means of surreptitious communications and ready access to like-minded individuals," said Cleveland attorney Chris Georgalis, a former federal prosecutor who has worked on terrorism cases.

"It's certainly facilitated these types of attacks, but from the government's perspective, it's also a means of accessing a treasure trove of evidence," Georgalis said after Pitts' arrest.

Conversely, the FBI has been criticized for failing to adequately investigate possible threats. For example, after the Feb. 14 massacre at Marjory Stoneman Douglas High School in Parkland, Florida, the FBI said it failed to act on a tip that the suspect had access to guns and a "desire to kill people," according to The Washington Post.

But Downs sees a double-standard in the way people perceive questionable messages that are posted online by Muslims, versus similar messages posted by non-Muslims.

"If a Muslim does this, they're a terrorist," Downs said. "If another person does it, they're delusional."

Mental illness and counter-terrorism cases

The counter-terrorism cases that critics regard as questionable often involve persons exhibiting signs of mental illness, experts said.

The report from the Human Rights Watch and Columbia Law School's Human Rights Institute uses the case of Rezwan Ferdaus as an example. Ferdaus pleaded guilty in 2012 to planning an attack on a federal building, and is now serving a 17-year prison sentence.

Ferdaus planned to acquire a remote-controlled aircraft, similar to a drone, and pack it with explosives before flying it into the Pentagon, authorities said.

Ferdaus was suffering from depression and seizures during the time he was in contact with an undercover agent, the 2014 report says. An FBI agent also told Ferdaus' father that he "obviously" had mental health problems, the report says.

Experts could not say how many counter-terrorism cases involve people with mental illnesses. But civil rights advocates argue that suspects exhibiting signs of mental illness may be better served by treatment, rather than prosecution.

Pitts' mental health has not been referenced by investigators or in a series of public records reviewed by cleveland.com. But Downs reviewed Pitts' conversations with the undercover agent, and he is concerned Pitts may have an underlying mental health issue.

"It's so sad, in a way, because the country could look at these cases and say these are people who need help," Downs said.

Government officials have opted for rehabilitative programs in some counter-terrorism cases, said Karen Greenberg, the director of Fordham University's Center on National Security. Federal judges have at times recommended pretrial diversion programs and psychological therapy in lieu of prison, she said.

In some cases -- particularly those involving young people -- law enforcement officials have also considered diversionary programs rather than pursuing an indictment, Greenberg said.

"The FBI can also take the lead and make some judgment calls," she said. "My understanding is that they have done that in a number of these cases."

Experts said authorities could assuage any concerns related to counter-terrorism investigations by focusing on cases involving a clear link to criminal activity - rather than a person's online threats.

"Really, what the FBI needs to be doing is focusing on cases where there may be some nexus to criminal activity," Ismail said.

Civil rights advocates see pressure to plead guilty

The FBI's approach to counter-terrorism cases changed after the Sept. 11, 2001 terrorist attacks, Downs and Ismail said. Investigators began to focus more on preventing crimes, by monitoring anyone exhibiting the "potential for violence."

"Under the guidelines they've adopted, they are simply not going to allow any possibility that a person may do something," Downs said.

There are no statistics than can say how many counter-terrorism cases involve legitimate threats, experts said. But many defendants plead guilty prior to trial because the risk of a conviction and a longer prison term are so great.

Even if a defense attorney argues that a counter-terrorism investigation amounted to entrapment, that's difficult to prove in court. In fact, no one in the U.S. has ever succeeded in using entrapment as a defense in a terrorism case, Greenberg said.

Federal law requires a defendant to prove that government agents induced him to commit a crime, and that he otherwise lacked the predisposition to commit the crime.

Determining if a person was predisposed to committing a crime can involve looking at his background. Civil rights advocates argue that a suspect's Muslim identity can unfairly prejudice the argument against him.

Proving an entrapment defense is also complicated by the fact that the "ready commission of a criminal act" - i.e., the acceptance of a government agent's "assistance" in committing a crime - has been found to demonstrate predisposition.

Experts agreed there are legitimate counter-terrorism cases that must be pursued, but they are concerned about investigations unfairly target the Muslim community.

"[Authorities] continue to drum up this bogeyman. That causes real serious risks in our society, and has real serious impacts on our community," Ismail said.

Herdman said after Pitts' arrest that federal agents and prosecutors are "not in the business of volunteering ideas to people who already are self-radicalized." He also said it's important for investigators to step in and make and arrest if they feel there is a legitimate threat to public safety.

"Any time the risk to public safety outweighs the development of additional evidence, we have to act in those cases," Herdman said. "That's really what the calculus comes down to."

But civil rights advocates argued that identifying a person posting threats online and getting them into treatment or counseling could be a better method for addressing some cases, instead of "sting operations" that lead to the person being prosecuted.

"We want the country to be safe, and we want law enforcement to have the tools and resources to combat serious threats, because we recognize there are national security concerns," Shearson said. "But we have serious reservations about the use of some of these tactics, when we think there are other ways to interdict these people earlier on."

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