* Defendant must prove not predisposed to commit crime
* No successful entrapment defense in big terrorism cases
By Jeremy Pelofsky
WASHINGTON, Oct 13 The Iranian-American
charged with plotting to assassinate Saudi Arabia's top
diplomat in Washington could claim he was wrongly entrapped by
U.S. law enforcement, but if he does, he will likely have a
hard time proving it.
Manssor Arbabsiar was arrested last month and accused of
approaching someone in Mexico he thought could carry out the
hit against Saudi Ambassador Adel al-Jubeir, but that man
turned out to be a U.S. law enforcement snitch.
The Obama administration has conducted numerous undercover
and sting operations leading to arrests of many people seeking
to carry out bombing or other attacks on U.S. soil, prompting
some questions about the tactics used.
No individuals charged in terrorism cases involving
undercover operations since the Sept. 11, 2001, attacks have
prevailed using an entrapment defense, said Georgetown
University law professor David Cole, a longtime expert on the
subject who has challenged terrorism policies in U.S. court.
"Entrapment requires the defendant to show that he was not
predisposed to commit the crime, so that the crime was
instigated by the government rather than by himself," said
"The more serious the crime, the more difficult it is to
imagine that someone would commit it who was not predisposed to
commit it," he said.
After several high-profile cases emerged last year,
including allegations that a Somali man tried to detonate a
bomb at a crowded holiday ceremony in Oregon, U.S. Attorney
General Eric Holder strongly defended undercover tactics.
"These types of operations have proven to be an essential
law enforcement tool in uncovering and preventing potential
terror attacks," Holder said in December. In some operations,
inert bombs were provided to the accused individuals.
He added such tactics "have helped identify and defuse
public safety threats such as those posed by potential
terrorists, drug dealers and child pornographers for decades."
A U.S. Justice Department official said there are strict
guidelines for such investigations and they undergo extensive
legal reviews by prosecutors and law enforcement agents. They
also typically require approvals by senior officials.
BEEFED UP GUIDELINES
The U.S. government beefed up its guidelines and oversight
after an embarrassing case in the 1990s involving reputed
mobster James "Whitey" Bulger, an FBI informant who continued
to carry out his alleged illegal activities including murders.
To ensure an individual is not entrapped, undercover agents
offer the person chances to back out and typically discuss
possible collateral damage, including killing bystanders.
In the case of Arbabsiar, the criminal complaint described
how he approached an individual in Mexico -- who turned out to
be a paid U.S. Drug Enforcement Administration informant --
with a plot to blow up a Saudi Arabian embassy.
Arbabsiar also discussed with the informant assassinating
the Saudi ambassador, which was the plot they pursued,
according to the sworn complaint signed by an FBI agent.
While the plot to kill Jubeir never reached the operational
stage, the paid informant discussed with Arbabsiar that if they
bombed a restaurant the diplomat frequented, potentially 150
others would be killed, including U.S. lawmakers.
Arbabsiar dismissed such concerns, stating "no problem" or
"no big deal," according to the criminal complaint. Iran has
fiercely denied the allegations of the plot to kill Jubeir.
Arbabsiar plans to plead not guilty to the charges,
according to his public defender attorney. However, the sworn
complaint said that after he was arrested, Arbabsiar admitted
he agreed to pay the informant to carry out the assassination.
The informant, who was not identified, was paid and
narcotics charges against him were dropped in return for his
cooperation. He previously provided information that led to
drug seizures, authorities have said.
Benjamin Wittes, a senior fellow at the Brookings
Institution, said such tactics are common, have long been used,
and that their "general legality is not, to my knowledge, the
subject of serious question."
At the same time, a longtime counterterrorism expert and
former Bush administration official, Juan Zarate, noted the
Obama administration will "certainly need to present
information beyond the four corners of the complaint to
convince allies and rivals alike to pressure Iran further."
Another law professor raised a further risk to the case:
would Washington have to reveal sources and methods in tracking
the alleged plot back to Tehran.
"We're not about to reveal how we penetrate Iran's
clandestine operations," said Michael Corgan, a Boston
University international relations professor. "Our going public
with as much as we have is mostly for propaganda purposes."
In other undercover operations, a Jordanian man was
arrested in September 2009 for trying to bomb a 60-story Dallas
skyscraper. The same day, an Illinois man was arrested in a
similar plot and sting case. Both pleaded guilty.
The Supreme Court last weighed in on entrapment in 1992,
when it overturned the conviction of a Nebraska man for
receiving child pornography in the mail after finding that
agents improperly excited the man's interest in the material
and exerted substantial pressure on him during their lengthy
investigation to obtain and read the material.