Since the 9/11 terrorist attacks, the government has mounted a number of investigations in which undercover FBI agents or informers have posed as co-conspirators with suspects who get charged with trying to carry out plots.

It has spawned a national debate about whether the suspects are really terrorists or just easily manipulated people who become victims of entrapment. With the arrest of Terry Lee Loewen at Wichita Mid-Continent Airport on Friday, that national debate has come to the Air Capital of the World.

Loewen, a 58-year-old avionics technician, has been charged in an alleged plot to use his airport access to try to drive a car bomb onto the tarmac to inflict maximum deaths. Two FBI employees posed as people engaging him or helping him to carry out the attack, a criminal complaint said. Loewen didn’t find out he had been fooled until he tried to carry out the attack with what was inert material, not high explosives, the court document said.

A letter to the editor in Tuesday’s Eagle typifies the entrapment argument: “The FBI has a pattern of seeking out naive, harmless, disaffected individuals and using them to orchestrate a crime. … Terry Lee Loewen has been entrapped along with others in these phony plots,” wrote Don Anderson of Winfield.

A counter argument comes from the website of the Investigative Project on Terrorism, a nonprofit institute based in the Washington, D.C., area, commenting on the Loewen case: “Many national Islamist groups have criticized similar sting operations, arguing the FBI is manufacturing a terrorist threat where it might not exist. If Loewen’s correspondence in the complaint proves accurate, however, he was a man with the motivation and access to pull off a horrific attack. Left alone, he might have found ways to make his own bomb.”

John Henderson, one of the federal public defenders representing Loewen, declined to comment Tuesday. Jim Cross, Wichita-based spokesman for the U.S. Attorney’s Office, said it “will reserve its comments for the courtroom” because the case is pending.

What is entrapment?

Wichita defense lawyer Dan Monnat says it involves two elements: law enforcement inducing someone to commit a crime, and the person having no predisposition to commit the crime.

“The defense of entrapment reflects the sound public policy that it is unconscionable for government officers to ensnare the innocent and law-abiding into the commission of crime,” Monnat said. Entrapment exists when the criminal idea originates with government agents instead of the accused and when the accused is persuaded by the officers to commit the crime, he said.

A January 2012 article by David J. Gottfried on the FBI’s website, titled “Avoiding the Entrapment Defense in a Post-911 World,” notes that since 9/11, there has been an emphasis on preventing attacks. “In other words, law enforcement must, in a controlled manner, divert someone determined to harm the United States and its people into a plot bound to fail from the outset, instead of one that might succeed,” wrote Gottfried, a legal instructor at the FBI Academy.

To avoid the defense getting an acquittal based on a successful entrapment argument, Gottried said, careful planning of the investigation and careful execution by law enforcement is key. Part of the test, he said, is that “defendants must show by a preponderance of evidence … that officers induced them to commit the crime. Assuming defendants make their showing of inducement, the burden of proof moves to the prosecution, which must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.” So an entrapment defense can fail either by the defendant not being able to show inducement or by prosecutors proving the defendant was predisposed.

Only authorities know the whole case against Loewen. But they have laid out, in detail, some of their case against Loewen, in a 21-page, footnoted criminal complaint:

Loewen told an undercover FBI employee about his “desire to engage in violent jihad,” or holy war. About four months before his arrest, he said: “Brothers like Osama bin Laden … are a great inspiration to me.” He said he had a number of ways he could “perform jihad” and that “none of them are legal.” He read a magazine with terrorist ties. He said, “I really don’t see me living through any thing I have in mind.” As the months went on, he kept reiterating his commitment to jihad. He said, “Don’t you think with my access to the airport that I should put that to good use?” Around Sept. 21, he spoke of how “It would have been possible today for me to have walked over there, shot both pilots … slapped some C4 on both fuel trucks and set them off before anyone even called TSA.”

After the undercover FBI employee told Loewen he “could back out at any time,” he continued ahead, sending photos of gates to the tarmac and suggesting that a company logo could be painted on a vehicle, “allowing more time to modify said vehicle for an operation.” And this: “count me in for the duration.” The plot progressed to the point that Loewen was suggesting that another person could detonate a suicide vest in the terminal, the complaint said.

Finally, the court document said, about a month before the attack, Loewen “further expressed his desire to kill as many people as possible, and he explained where to park a vehicle full of explosives.”

In a letter to his family, he wrote: “I expect to be called a terrorist (which I am), a psychopath, and a homicidal maniac.”

Steve Emerson, executive director of the Investigative Project on Terrorism, said that based on the criminal complaint, “he had a predisposition.” Along the way, the undercover employees “provided him several outs,” Emerson said.

In most successful interventions to prevent terrorist attacks, authorities are using undercover people posing as co-conspirators, Emerson said.

He said he knows of no successful entrapment defense in a terrorism case after 9/11.

It seems that Loewen was mentally aware of what he was doing, Emerson said, adding that terrorists “might seem crazy to others … but they’re not crazy” even though others can’t rationalize terrorism.

The investigation of Loewen would have been authorized only after a “tremendous legal review,” Emerson said, adding that approval for “an operation like this comes out of headquarters.”

Mike German, senior policy counsel for the American Civil Liberties Union and based in Washington, D.C., said he wouldn’t comment on the Loewen case because not all the facts are known. But in general, German said, “The FBI has clearly been pushing the envelope in previous sting cases.” The situation has caused the current skepticism among the public, said German, a former FBI agent who said he worked undercover in domestic terrorism cases.

Questionable sting cases “exploit the fear” caused by terrorism, German said. Too many times, he said, the person targeted by the investigation doesn’t have the capability to carry out an attack even if he had intent.

There is a way to investigate a risk without intervening so much and “manufacturing the plot,” German said.

For the government, he said, building cases becomes a way to argue for more funding, resources and authority “rather than taking an honest assessment of the threats that exist.”

German said it comes down to politics – making it appear that government is tough on terrorism.

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The Wichita Eagle – By Tim Potter

WICHITA, Kansas – Terry Lee Loewen made national news when he tried to blow up his car on the tarmac at Wichita’s Mid-Continent Airport.

Court papers show Loewen reached out to people he thought were Al Qaida.  They walked him through the process of building a bomb and making the plan.

But those people were really FBI agents.

“He went forward, and he went forward right to the very end.”

Former FBI agent Daniel Jablonski says FBI agents are on the lookout for homegrown terrorism.

He also says it is very clear that FBI agents root out potential terrorists but do not entrap.

“You need to investigate and ask the questions. And our job was that of a fact finder,” said Jablonski.

Jablonski says court papers in the Terry Loewen case are clear.

It appears Loewen had the intent to do harm to a lot of people.

He says the FBI just got to Loewen before he found somebody else.

Attorneys say entrapment defense likely on tap for Loewen.

“For there to be entrapment, two ingredients are necessary. One, government inducement. Two, no predisposition by the accused to commit the crime,” said Dan Monnat, legal analyst.

Monnat says entrapment could certainly be argued.

Those who have gone after potential bad guys with the FBI say it appears the government has put together a pretty solid case against Loewen at least so far.

“We were not making judgements but to obtain the facts.”

See video at KSN


WICHITA, Kan. (AP) – The arrest of a Kansas man accused of trying to bring what he thought was a car bomb into a Wichita airport marked the culmination of a months-long undercover sting in what has become a successful and widely used domestic counterterrorism tactic.

Court documents detail Terry Lee Loewen’s alleged conversations with undercover FBI agents over six months. The discussions began with vague sentiments about his desire to commit “violent jihad” against the U.S. before turning into a detailed, concrete plot in which the agents recruited him to use his airport access to plant a bomb in a martyrdom operation.

Loewen, a 58-year-old avionics technician who worked at the airport for Hawker Beechcraft, was arrested Friday on charges including providing support to al-Qaida and attempting to use a weapon of mass destruction. He remains jailed, and prosecutors expect to take their case to a grand jury Wednesday.

The case resembles a string of investigations conducted by the FBI since the Sept. 11 terrorist attacks that have prompted controversy over whether law enforcement’s tactics involve entrapment and violate civil liberties.

One such case involved an undercover agent pretending to be a terrorist who provided a teenager with a phony car bomb, then watched him plant it in downtown Chicago. In Boston, a man was sentenced to 17 years in prison for plotting with undercover agents to fly remote-controlled planes packed with explosives into the Pentagon and U.S. Capitol.

The FBI insists the stings are a vital, legal tool for averting potentially deadly terrorist attacks – and juries have returned tough sentences.

Dan Monnat, a prominent Kansas defense attorney who isn’t representing Loewen, said the 21-page criminal complaint against Loewen doesn’t contain enough information to find his guilt or evidence of FBI entrapment. But he questioned the FBI’s tactics.

“If the fragile mental state of an otherwise upstanding individual is exploited to commit a crime that the individual otherwise would not have taken steps to commit, how does that make us safe and why spend taxpayer money on prosecution?” Monnat said Saturday.

“If that is what happened here, we have to ask ourselves: Is grooming terrorists the best use of our taxpayer money for security? If the person otherwise would never have taken further steps in furtherance of terrorism, what is the point?”

But entrapment defenses have failed in various cases. In a 2009 case in New York, a federal judge said she was not proud of the government’s role in nurturing an alleged conspiracy in which four men were convicted in a plot to bomb synagogues and shoot down military planes with missiles. The men were each sentenced to 25 years in prison.

In an unsuccessful appeal, the defense argued the men were harmless dupes led astray by an FBI informant who infiltrated a mosque. With the encouragement of the informant, one of the men hatched the scheme to blow up the synagogues in the Bronx and to shoot down military cargo planes with missiles.

The appeals court found the government’s tactics didn’t rise to the level of “outrageous misconduct.”

Court documents don’t specify what initially led investigators to Loewen, though he allegedly told an undercover agent during one online exchange: “hey I read Inspire magazine; I believe in staying informed.” Inspire, an English-language online magazine, is produced by al-Qaida affiliates. It includes such things as bomb-making instructions and endorsements of lone-wolf terror attacks.

He also allegedly told the undercover agent he’d downloaded tens of thousands of pages about jihad, martyrdom operations and Sharia law, and printed out an al-Qaida manual – online activity that often draws law enforcement’s attention.

U.S. Attorney Barry Grissom declined to discuss the case Saturday. But in May, he told students during an event at Wichita State University that authorities monitor extremists groups’ websites, including Inspire magazine.

“Do not go to this website,” Grissom said. “You will be on our list.”

In Loewen’s case, court documents paint an undercover operation in which Loewen and two FBI agents posing as conspirators ultimately hatched a plot to place a vehicle full of explosives at the Wichita airport. He allegedly timed it to cause “maximum carnage” and death, according to an FBI affidavit.

In early October, one undercover agent told Loewen he’d just returned from overseas after meeting with individuals connected with al-Qaida, and that the “brothers” were excited to hear about his access to the airport. When the agent asked if he’d be willing to plant a bomb, Loewen allegedly told him the plans were “like a dream come true for me, and I never expect things this good to occur in my life.”

Over the coming months, he allegedly conspired with the agents. Loewen, who once claimed to know nothing about explosives, assisted an undercover agent assemble a bomb – but with inert explosives – using components he took from his employer. Two days later, an undercover agent picked Loewen up at a local hotel, went to another location to get the fake bomb and drove to Wichita Mid-Continent Airport.

Loewen was arrested early Friday as he twice tried to use his badge to gain entry to the tarmac.

In a letter dated Wednesday that prosecutors say Loewen left for a family member, Loewen said he expected to be martyred for Allah by the time the letter was read. He wrote that his only explanation was that he believed in jihad for the sake of Allah and his Muslim brothers and sisters, though he said most Muslims in the U.S. would condemn him.

“I expect to be called a terrorist (which I am), a psychopath, and a homicidal maniac,” the letter said.

The Wichita Eagle newspaper, citing police, reported Saturday that Loewen has had at least one brush with the law, a concealed-carry violation at the airport in 2009.

Loewen has been described by a relative and a neighbor as a good person who largely kept to himself. His wife attended his initial court appearance Friday but refused to talk with reporters, as did his attorney.

Read full story here

Associated Press – By Roxana Hegeman

WASHINGTON (AP) – The Supreme Court says a lower court should not have overturned the conviction and death sentence of a man who admitted killing a Kansas sheriff.

The high court Wednesday unanimously overturned the Kansas Supreme Court’s decision to throw out Scott Cheever’s death sentence for the 2005 fatal shooting of Greenwood County Sheriff Matt Samuels.

“It’s been a long time coming,” Heath Samuels, Matt Samuels’s son and a Lyon County Sheriff’s deputy, told KSN Wednesday. “We know it’s not over yet, and we expect to hear more appeals out of it.”

The Kansas court said Cheever’s rights against self-incrimination were violated by prosecutors who used a court-ordered mental evaluation from a different trial against him.

Cheever’s own expert argued that methamphetamine use had damaged his brain. Justice Sonia Sotomayor said that because Cheever’s side raised the brain damage issue, prosecutors were entitled to use testimony from the mental health expert from the other trial. That expert said Cheever killed because of an anti-social personality, not because of brain damage.

See video at KSN