I wouldn’t have bet on it, but I did actually get to pose that question once. It was about 25 years ago, speaking to the jury at the end of the Blind Sheikh trial. I’d first gotten involved in the investigation nearly three years earlier, a few weeks after the World Trade Center was bombed in February 1993 … but well before we would finally arrest jihadists in flagrante delicto, mixing explosives in a Queens safehouse — explosives they were planning to detonate in the Lincoln and Holland Tunnels, two of several targets on their hit list in what became known as the “New York City Landmarks” plot. Given that experience, it is no surprise that my eye was quickly caught by the big BuzzFeed.News story this week, about the investigation of the Wolverine Watchmen militia and its — or, as some allege, the FBI’s — plot to kidnap Michigan governor Gretchen Whitmer. What we are looking at with the Watchmen is a covert investigation of terrorism, mainly relying on informants, in the domestic context — in the sense that, whether the suspected terrorist group under investigation is deemed “domestic” (i.e., American citizens) or “foreign,” the activities being probed took place inside the United States, and thus under all the safeguards of the Constitution and statutory law. My investigation in 1993 could have been described the same way. It did not strike me as controversial that we used “sting” investigative techniques back then. For one thing, the Twin Towers had just been bombed, and the jihadist cell was clearly still active — the handful of arrests right after the bombing hadn’t shut down the broader cabal. In such circumstances, the object of the game is to prevent more atrocities from happening, rather than being content to prosecute only after people have been killed. Consider Bipartisan Infrastructure Plan without Reconciliation Proposal NR PLUS LAW & THE COURTS Whitmer-Kidnap Case Enters ‘Entrapment’ Phase By ANDREW C. MCCARTHY July 24, 2021 6:30 AM Share on Facebook Share on Twitter Share on Flipboard Email this article Print this article Michigan Governor Gretchen Whitmer speaks during a news conference after thirteen people, including seven men associated with the Wolverine Watchmen militia group, were arrested for alleged plots to take Whitmer hostage and attack the state capitol building, in Lansing, Mich., October 8, 2020. (Michigan Governor's office/Handout via Reuters) But do the Wolverine Watchmen militia members have a valid claim? NRPLUS MEMBER ARTICLE W hat would it take to entice you to commit a mass-murder attack? I wouldn’t have bet on it, but I did actually get to pose that question once. It was about 25 years ago, speaking to the jury at the end of the Blind Sheikh trial. I’d first gotten involved in the investigation nearly three years earlier, a few weeks after the World Trade Center was bombed in February 1993 … but well before we would finally arrest jihadists in flagrante delicto, mixing explosives in a Queens safehouse — explosives they were planning to detonate in the Lincoln and Holland Tunnels, two of several targets on their hit list in what became known as the “New York City Landmarks” plot. Given that experience, it is no surprise that my eye was quickly caught by the big BuzzFeed.News story this week, about the investigation of the Wolverine Watchmen militia and its — or, as some allege, the FBI’s — plot to kidnap Michigan governor Gretchen Whitmer. MORE IN FBI Democrats Blast FBI Kavanaugh Investigation after New Details Revealed: ‘Injustice’ Hey, Maybe the Walls Aren’t Closing In on Donald Trump After All In the Comey Investigation, the Leak Is Not the Relevant Issue What we are looking at with the Watchmen is a covert investigation of terrorism, mainly relying on informants, in the domestic context — in the sense that, whether the suspected terrorist group under investigation is deemed “domestic” (i.e., American citizens) or “foreign,” the activities being probed took place inside the United States, and thus under all the safeguards of the Constitution and statutory law. My investigation in 1993 could have been described the same way. It did not strike me as controversial that we used “sting” investigative techniques back then. For one thing, the Twin Towers had just been bombed, and the jihadist cell was clearly still active — the handful of arrests right after the bombing hadn’t shut down the broader cabal. In such circumstances, the object of the game is to prevent more atrocities from happening, rather than being content to prosecute only after people have been killed. NOW WATCH: 'Detroit Police Chief Blasts Governor Whitmer Ahead of Potential Candidacy Bid: ‘America Isn’t A Monarchy’' Moreover, I had done covert investigations before, in dealing with organized crime (OC). This involves professional criminals — e.g., members or associates of the Mafia (the most infamous OC organization) — who make their living violating the law, a “profession” that is inherently violent for obvious reasons. (By the way, I am using the term “covert,” even though these are more often called “undercover” investigations, because undercover can be a confusing term. In law-enforcement lingo, an “undercover” is a law-enforcement agent who pretends to be a criminal in order to gather evidence against actual criminals. Private citizens who are not police often perform the same function, under the supervision of law-enforcement agents, but they are called “informants” even though they work undercover.) I describe terrorism and OC investigations, and the fact that, at the time, the covert tactics seemed unexceptional, because of the hue and cry over the heavy use of informants in the Watchmen probe, as reported by BuzzFeed. without Reconciliation Proposal NR PLUS LAW & THE COURTS Whitmer-Kidnap Case Enters ‘Entrapment’ Phase By ANDREW C. MCCARTHY July 24, 2021 6:30 AM Share on Facebook Share on Twitter Share on Flipboard Email this article Print this article Michigan Governor Gretchen Whitmer speaks during a news conference after thirteen people, including seven men associated with the Wolverine Watchmen militia group, were arrested for alleged plots to take Whitmer hostage and attack the state capitol building, in Lansing, Mich., October 8, 2020. (Michigan Governor's office/Handout via Reuters) But do the Wolverine Watchmen militia members have a valid claim? NRPLUS MEMBER ARTICLE W hat would it take to entice you to commit a mass-murder attack? I wouldn’t have bet on it, but I did actually get to pose that question once. It was about 25 years ago, speaking to the jury at the end of the Blind Sheikh trial. I’d first gotten involved in the investigation nearly three years earlier, a few weeks after the World Trade Center was bombed in February 1993 … but well before we would finally arrest jihadists in flagrante delicto, mixing explosives in a Queens safehouse — explosives they were planning to detonate in the Lincoln and Holland Tunnels, two of several targets on their hit list in what became known as the “New York City Landmarks” plot. Given that experience, it is no surprise that my eye was quickly caught by the big BuzzFeed.News story this week, about the investigation of the Wolverine Watchmen militia and its — or, as some allege, the FBI’s — plot to kidnap Michigan governor Gretchen Whitmer. MORE IN FBI Democrats Blast FBI Kavanaugh Investigation after New Details Revealed: ‘Injustice’ Hey, Maybe the Walls Aren’t Closing In on Donald Trump After All In the Comey Investigation, the Leak Is Not the Relevant Issue What we are looking at with the Watchmen is a covert investigation of terrorism, mainly relying on informants, in the domestic context — in the sense that, whether the suspected terrorist group under investigation is deemed “domestic” (i.e., American citizens) or “foreign,” the activities being probed took place inside the United States, and thus under all the safeguards of the Constitution and statutory law. My investigation in 1993 could have been described the same way. It did not strike me as controversial that we used “sting” investigative techniques back then. For one thing, the Twin Towers had just been bombed, and the jihadist cell was clearly still active — the handful of arrests right after the bombing hadn’t shut down the broader cabal. In such circumstances, the object of the game is to prevent more atrocities from happening, rather than being content to prosecute only after people have been killed. NOW WATCH: 'Detroit Police Chief Blasts Governor Whitmer Ahead of Potential Candidacy Bid: ‘America Isn’t A Monarchy’' Moreover, I had done covert investigations before, in dealing with organized crime (OC). This involves professional criminals — e.g., members or associates of the Mafia (the most infamous OC organization) — who make their living violating the law, a “profession” that is inherently violent for obvious reasons. (By the way, I am using the term “covert,” even though these are more often called “undercover” investigations, because undercover can be a confusing term. In law-enforcement lingo, an “undercover” is a law-enforcement agent who pretends to be a criminal in order to gather evidence against actual criminals. Private citizens who are not police often perform the same function, under the supervision of law-enforcement agents, but they are called “informants” even though they work undercover.) I describe terrorism and OC investigations, and the fact that, at the time, the covert tactics seemed unexceptional, because of the hue and cry over the heavy use of informants in the Watchmen probe, as reported by BuzzFeed. ALSO FROM ANDREW C. MCCARTHY Pelosi’s Capitol-Riot-Probe Power Play Saves Republicans from Themselves University of Indiana’s Vaccine Mandate Upheld by Federal Court The Sinister Plot That Wasn’t: About That Hunter Biden Report It is virtually always the case that some suspects caught up in a sting operation will claim to have been entrapped, as a number of the Watchmen are poised to do. The defense is nearly always a loser, though it may be the only conceivable defense a suspect has, because a well-run covert investigation won’t leave room for much else. Why are we surprised that entrapment claims tend to be weak even if it appears that the police were deeply involved in the criminal activity charged, to the point of appearing to orchestrate it? It is mainly because media coverage — especially at the pretrial stage, when it is mostly defense lawyers speaking to the press — focuses on the wrong issue. When it comes to entrapment claims, what matters most is the nature of the criminal conduct at issue. The degree of police aggressiveness is a side issue. Indeed, the more serious and potentially violent the crime, the more aggressiveness we expect from the police and their informants. If you’re not focused on the nature of the crime, then any discussion of entrapment escapes the realm of common sense and enters that of a dry, artificial law-school exam. The legal test of entrapment is straightforward. Entrapment is police enticing of a person to commit a crime that the person was not otherwise disposed to commit. Consequently, as a matter of law, there can be no entrapment if the accused (a) proposed or otherwise initiated the crime, or (b) was predisposed to commit the crime, even if the government proposed it.