About Me

A blog wherein a literary agent will sometimes discuss his business, sometimes discuss the movies he sees, the tennis he watches, or the world around him. In which he will often wish he could say more, but will be obliged by business necessity and basic politeness and simple civility to hold his tongue. Rankings are done on a scale of one to five Slithy Toads, where a 0 is a complete waste of time, a 2 is a completely innocuous way to spend your time, and a 4 is intended as a geas compelling you to make the time.

Sunday, December 12, 2010

risk vs. reward

Here's a Washington Post article from this Saturday where Attorney General Eric Holder is defending the legality of sting operations that are finding terrorist plots emanating from radicalized Muslims in the United States.

It's a difficult question. My client Tobias Buckell mentioned another Washington Post article describing how one informant the FBI was using so upset a lot of the people in a mosque that they called the FBI to report him. You read enough of these stories, and it's very clear that the people the FBI is arresting are radicalized, do have intentions on harming us. And at the same time, a lot of their particular plots might not have advanced if the FBI didn't find and encourage and help them. From the legal definition of entrapment, I don't think the entrapment defense works because the intention is there with or without the FBI.

At the same time, I don't know if we're doing ourselves a service by having the FBI informers essentially run the bad guys in their missions. Another approach is to try and surveil and monitor the suspects and see whom they might come across if we let them play out the string a little bit. Now, there's a real risk to this. The guy in Portland, maybe he'd have ended up with real explosives in his car instead of fake explosives supplied by the FBI. But there's a gain to this as well. Two, actually. From the FBI perspective, there's less room for debate. And at least for some people, maybe we're better off if it doesn't keep looking like the FBI is arresting people for plots that, entrapment or not, wouldn't look like they exist only because the FBI was enabling. Bigger gain, if the plot advances with somebody else's help, maybe we're going to end up catching a bigger fish, kind of like the same thing where you have to try and balance jailing the foot soldiers in the drug war against jailing the kingpins.

Alas, our government has no interest in trying to talk us through real risk scenarios. Our government prefers for us all to pretend that there's no airplane security risk because we all get body scans and patdowns. Better that we give up our 4th amendment right against unreasonable search and seizure. So that's not a government that's going to take any risk that they'd let some plot advance too far before making the arrests, because it would require having an adult discussion about the risk/reward of the chosen course if things go wrong.

In law enforcement and in life, like with your IRA, there's always that balance between risk and reward.

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