By Evan Osnos
June 10, 2016
On New Year’s Eve, in Rochester, New York, the F.B.I. and federal prosecutors announced a major arrest: twenty-five-year-old Emanuel Lutchman, who was accused of “claiming to receive direction” from a member of ISIS and planning “to commit an armed attack against civilians” during the city’s New Year’s Eve festivities. In an affidavit, an F.B.I. agent described Lutchman as “a self-professed Muslim convert with a criminal history.” In response to the arrest, Rochester cancelled a fireworks production scheduled for that night. But Assistant Attorney General John P. Carlin tried to reassure the public: “Thankfully, law enforcement was able to intervene and thwart Lutchman’s deadly plans.”
Law enforcement had done more than intervene; it had played an active part in helping Lutchman, a mentally ill panhandler, to compose and execute a plot. It’s not clear how the F.B.I. first became interested in Lutchman—his family blames his inflammatory comments on Facebook—but court documents indicate that, in November and December of 2015, the F.B.I. enlisted three confidential informants to build a case against him. Lutchman allegedly told the informants that he hated America and wanted to leave the country, and that he had been in contact with an ISIS “brother” overseas. But he was a fitful plotter. “Lutchman at one point considered abandoning the plot after one informant said he had decided not to be involved,” the Rochester Democrat & Chronicle reported. “Another informant told him ‘not to let (the informant’s) backing out of the operation upset him,’ and Lutchman then decided to continue with the planned attack.” Lutchman suggested that they attack a bar that had once kicked him out for panhandling. Eventually, he and one of the informants went to a Walmart and bought forty dollars’ worth of materials, including a machete, duct tape, and knives. Lutchman had no money, so the F.B.I. informant paid for the items.
Nobody disputes that the Islamic State seeks to harm Americans. But many cases like Lutchman’s hinge on a difficult question: Was the target of the sting actually capable of doing harm—or was he just talking about it with the help of people who were paid to encourage him? In a story published this week, the Times reported that the F.B.I., in its efforts to combat the Islamic State, relies increasingly on undercover stings of the kind that netted Emanuel Lutchman. In 2014, thirty per cent of ISIS-related prosecutions involved undercover operations. Since February, 2015, that figure has more than doubled. The F.B.I. said that this was not due to a deliberate change in strategy; it told the Times that the growing reliance on undercover agents reflected the growing influence of ISIS and the agency’s determination to thwart attacks before they happen.
But Michael German, a former F.B.I. agent who researches national security law at New York University’s Brennan Centre for Justice, told the Times, “They’re manufacturing terrorism cases.” In too many instances, he said, “these people are five steps away from being a danger to the United States.”
This is not the first time that the F.B.I. has attracted criticism from national-security experts and civil-liberties groups for generating terrorism cases through sting operations and confidential informants. In “The Imam’s Curse,” published in September, I reported on a Florida family that was accused of providing “material support” to terrorists. In that case, a father, Hafiz Khan, and two of his sons were arrested. The charges against the sons were eventually dropped, but Hafiz Khan was convicted and sentenced to twenty-five years in prison. At Khan’s trial, his lawyer, Khurrum Wahid, questioned the reliability of the key informant in the case, David Mahmood Siddiqui. Wahid accused Siddiqui, who’d had periods of unemployment, of lying to authorities because his work as a confidential informant was lucrative. For his role in the case, Siddiqui had received a hundred and twenty-six thousand dollars, plus expenses. But in a subsequent interview with the Associated Press, Siddiqui stood by his testimony and motives: “I did it for the love of my country, not for money.”
Historically, the F.B.I. used stings as an investigative tool of last resort, because they required elaborate preparation, and were also vulnerable to accusations of entrapment. Some jurists have been wary of approaches to prosecution that identify targets on the basis of potential, if not yet actual, criminal activity. In 1951, Supreme Court Justice William O. Douglas dissented from a ruling related to the conviction of Communist Party leaders, and offered a warning about laws so broad that “illegality is made to turn on intent, not on the nature of the act.” He wrote, “We then start probing men’s minds for motive and purpose; they become entangled in the law not for what they did but for what they thought.”
Since September 11th, the F.B.I. has expanded the use of informants, who are hired not only to monitor targets but also, in some cases, to invent a crime, provide weapons and money, and invite a target to participate. In an analysis of five hundred terrorism-related cases brought since September 11th, the journalist Trevor Aaronson found that nearly half of them involved a confidential informant. In some cases, the threat posed by the target was remote. In one case from 2011, an F.B.I. informant devised a plan to attack the Pentagon and the U.S. Capitol, and enlisted the help of Rezwan Ferdaus, a Massachusetts man who had no prior criminal convictions and who was being treated, at the time, for depression so severe that he wore diapers, having lost control of his bladder. Ferdaus pleaded guilty to his role in the plot and was sentenced to seventeen years in prison.
In the case of Emanuel Lutchman, it is difficult to know what he might have done if the F.B.I. had not encouraged him to stay in the plot and bought him the tools for the attack. According to his family, he had been on medication since childhood for psychiatric instability. When he was sixteen, he pleaded guilty to stealing a cell phone, a baseball hat, a bus pass, library cards, and cigarettes, and was sentenced to five years in prison, where he converted to Islam. After he got out, police picked him up several times for “mental hygiene arrests.” In the days before the F.B.I arrested him, he was often seen scavenging for cigarette butts and begging for money outside a bowling alley and a sports bar in Rochester. His father, Omar Lutchman, expressed scepticism about his son’s connection to ISIS. “First he was a Blood, then he was a Crip, then he became a Muslim,” his father told the Democrat & Chronicle. “He’s easily manipulated.”
Do investigations like the ones that snared Lutchman and Hafiz Khan make us safer? In 2011, a few weeks before the Khans were arrested, Robert Mueller, the F.B.I. Director at the time, told a congressional committee that preventing the next terrorist attack would depend partly on the strength of the F.B.I.’s cooperation with American Muslims. “We need the support of that community,” Mueller said. Last year, I asked Nezar Hamze, a deputy sheriff in Broward County, Florida, and the regional director of Florida’s chapter of the Council on American-Islamic Relations, what effect the Khan case had on the local Muslim community. “I can tell you that the manner in which the F.B.I. conducted and executed the arrests did so much damage to their reputation in the community that it is still spoken about right now,” Hamze said.
The risk that ISIS recruitment poses to Americans is real. The government estimates that at least two hundred and fifty Americans have attempted to join jihadists in Syria. Stopping that flow will take not only the dedication of law enforcement but also vigilant oversight, to ensure that the tools of law enforcement are not abused in ways that, in effect, create more problems than they solve.
Evan Osnos joined The New Yorker as a staff writer in 2008, and covers politics and foreign affairs.