

FBI director defends impersonation of AP reporter - 001sky
http://www.cnn.com/2014/11/07/us/fbi-associated-press-deception/

======
dmourati
I had the distinct privilege of studying law under Wayne LaFave, author of the
treatise on criminal procedure. When I read the headline, it brought me back
to my first year in law school and the discussions professor LaFave kindled
around the topic of deception.

Here are some related common tactics upheld by courts:

1\. Planting a "criminal" in a cell with a defendant to elicit a confession.
2\. Separating co-defendants into two interrogations and telling each the
other has "ratted" them out. 3\. Letting one co-defendant see the other
receive a "reward" indicating that they have already "flipped." See the Wire
scene with the cheeseburger. [http://discoveringthewire.com/characters-of-the-
wire-william...](http://discoveringthewire.com/characters-of-the-wire-william-
bunk-moreland/)

In comparison, this seems inline. I can understand why the AP would strongly
object. In reality, though, what else do you want them to do. They are a news
reporting agency who's name is the subject of a news story. The result is
predictable.

~~~
josu
>1\. Planting a "criminal" in a cell with a defendant to elicit a confession.

If I'm locked in a cell with a big tough guy covered in tattoos you bet that I
will make up some crazy story just as a defense mechanism. If I am being
accused of murdering someone, even if I didn't do it, I would probably tell
that story just to feel safer.

>2\. Separating co-defendants into two interrogations and telling each the
other has "ratted" them out.

>3\. Letting one co-defendant see the other receive a "reward" indicating that
they have already "flipped."

These two tactics can lead to a false confession too, just out of spite or
fear.

So you have to consider if it's better to convict an innocent person or to
_let go_ a criminal. And you would not really be letting him go, you'd just
need to gather more evidence.

~~~
anigbrowl
_big tough guy covered in tattoos_

This tells us more about your stereotypes of criminals than anything else. If
you made a story up out of whole cloth to impress someone it would be unlikely
to fit with any other evidence in the case. Back in reality, if you read cases
where such tactics are employed, they usually involve pairing someone up with
a cellmate who is in for some relatively minor crime and gain's the suspect's
confidence by talking freely about their own situation. Admissions to
cellmates usually come after days or weeks, once the suspect has become
comfortable, at which point the suspect may brag about their criminal
activities - in much the same way as everyone else likes to share 'war
stories' about their line of work from time to time.

A threatening or scary cellmate that glared aggressively at a suspect would be
a gift to defense lawyer, since it would make it a lot easier to argue that
the confession had been coerced and should therefore be suppressed.
Criminology texts emphasize this point; the object is to elicit a confession
that will stand up in court. In the vast majority of them the informant
presents a friendly demeanor towards the suspect, and furthermore is
instructed not to prompt or ask questions but simply to pay close attention to
the suspect's conversation and report anything interesting to investigators -
again, to avoid complaints that a confession was coerced or that a defendant
was put in a position where they felt obliged to provide information without
benefit of counsel. Indeed, law enforcement often uses undercover officers
posing as prisoners, and courts don't consider this a violation of Miranda
rights as long as statements made by a suspect are voluntary.

~~~
josu
That makes much more sense than the big tough guy that I mentioned. But there
are still many reasons why an innocent person thrown in jail could make up an
story. I guess that it would be OK to use that confession if it leads the
investigator to new evidence, but using it in court as an evidence in itself
seems very wrong to me.

My knowledge about criminology or criminal justice is very limited, and it's
probably polluted by all the cop movies and TV shows. So any input from
somebody more knowledgeable on the subject is more than welcome.

~~~
anigbrowl
Your instinct about using it in court as evidence is basically good - the
'hearsay rule' forbids testimony of the form 'so-and-so told me that the
defendant was guilty,' with a few very narrow exceptions like the last words
of a dying person that accuse someone of a crime. Because of teh 6th
amendment, informants and undercover officers have to testify in court, where
the defense can question them and challenge the veracity of their statements.

Of course this is not perfect. There have been cases where law enforcement or
prosecutors told the informant what to say in an overzealous effort to gain a
conviction, and sometimes innocent people have languished in jail for years on
the basis of such false testimony. That shouldn't be allowed to happen, but
when it does it doesn't necessarily mean the entire judicial process was
corrupted. For example, a trial may have been properly conducted but if the
defense lawyer was lazy or incompetent and failed to challenge the prosecution
evidence the judge and jury may not have had any way of knowing about the
flaws int he prosecution's case.

One important thing to bear in mind about American courts is that trial courts
do not have an investigatory function to discover all the information about a
case, but rather a decisive function to select between competing arguments
from plaintiffs/prosecutors and civil/criminal defendants. So even if the
defense lawyer is an obvious imcompetent the court inn't supposed to pre-
emptively assist the defendant - the defendant has to ask for a new lawyer or
bring up the issue at appeal.

In many other countries they use a different sort of system called civil law,
where the judge is basically the lead investigator in the case. That can
prevent some kinds of miscarriages of justice that occur in our system but as
you might expect it opens to the door all sorts of other kinds.

~~~
josu
Thank you so much for such a thorough and informative answer.

------
uniformlyrandom
> "No actual story was published, and no one except the suspect interacted
> with the undercover 'A.P.' employee or saw the fake draft story," he wrote.
> "Only the suspect was fooled, and it led to his arrest and the end of a
> frightening period for a high school."

Sounds like a perfectly reasonable sting. Not sure what the fuss is about.

~~~
sp332
The AP is mad because this harms their reputation. Now no one will be sure if
an AP story (edit: or person) is really an FBI plant.

~~~
spankalee
The FBI didn't publish a story, they just posed as an AP reporter, and only to
the suspect. This seems like a perfectly fine tactic to me, it's basically
just going undercover.

~~~
privong
I see your point about going undercover. But I think the fact that they said
they were with the AP modifies things slightly. If they had pretended to be a
reporter from some made-up news agency, then sure, I could see it as "just
going undercover". But they used the reputation of the AP to carry that out.
It isn't quite impersonation, but it is close. And it potentially harms the
credibility of the AP. So, in that sense, it is more than "just going
undercover".

~~~
iancarroll
Of course, if the news agency didn't really exist how convincing would it be?

~~~
charonn0
Convincing enough, e.g.:

> Hi! I'm Bob with KBBL Eyewitness News. Do you mind if I ask you a few
> questions?

------
Zikes
They caught a crook while simultaneously undermining the credibility of a
respected news organization that's historically critical of them.

Sounds like someone's gunning for a promotion.

~~~
spacefight
Imagine the AP would impersonate as the FBI to get raw material for some of
their reports...

~~~
Zikes
"The A.P.'s use of such techniques is subject to close oversight, both
internally and by the people that read our work."

------
BrandonMarc
If leakers learn they can't be certain they can trust reporters (or entities
claiming to be such), that's a chilling effect on leakers.

Thus, fewer leakers coming forward - or lots more friction as they try to
establish with certainty who they're dealing with.

Thus, less info being leaked to the media (except when the government "leaks"
it on purpose).

Thus ... less oversight by the media, and less shared understanding of things
going on.

~~~
maxerickson
Are most of the people worried about catching the attention of the US
government really going around just taking people's word on things?

Fed: "Yep, I'm a reporter."

Leaker: "Great, let's talk."

It just doesn't really scan.

I'm not saying I'm comfortable with what the FBI is doing (I guess I'm not
sure about that), I'm wondering if chilling effects are an important aspect of
it.

~~~
fenomas
Whether it scans is just a question of how much effort goes into any given
investigation, surely?

I mean, if one fed says "I'm a reporter", and a second says the same but also
has AP business cards, and a third also has an authentic-looking AP badge with
his photo and the name of a real AP journalist, I don't guess there's any
bright line between those things. Once the feds decide to impersonate a
journalist they could be arbitrarily convincing about it, couldn't they?

~~~
maxerickson
If I wanted to leak something, I would choose the reporter.

I would probably go to a library and evaluate the writings of several
reporters, and choose from there.

I would then figure out how to identify the chosen reporter using materials
that they did not provide to me.

I would not rely on my ability to authenticate an AP badge.

I don't think any of that is particularly sophisticated, so I would expect
many leakers to at least take that first step (and hopefully they would
usually see the problem with using information provided by the reporter to
evaluate the identity of the reporter).

~~~
forgottenpass
Your extrapolating from your own course of thought and actions and assuming
that everyone in the world makes similar enough decisions as you do that it's
not worth considering alternate scenarios.

Not everyone has the luxury of deciding if some proof is good enough in a a
consequence free thought experiment where they can also shape the constraints.
IRL constraints and persuasion tactics shift the ability to verify, and
someone with legal considerations can't afford to be wrong even once. It
shifts the decision making process in such a way that the fact "cops have
posed as reporters" plus an abundance of caution means nobody talks to
reporters. Exactly the circumstances the AP is afraid of.

~~~
maxerickson
We are talking about people choosing to commit a federal crime out of the
belief that it serves the greater good. If they aren't capable of being
cautious, I first don't want them handling sensitive government information,
and second, I don't want them making the decision to share it with the public.

~~~
forgottenpass
Sure, but don't you see that your personal opinions don't apply directly to
someone else leaking information, or more generally, chilling effects on
things that aren't federal crimes?

------
dysfunction
I don't actually have much of a problem with this. Lying to a suspect as part
of an investigation isn't infringing anyone's civil liberties, unless they lie
about specific things, such as telling a suspect lies about their rights.

~~~
jonlucc
It depends on how certain you are that someone is a suspect. If you just get
to go around doing anything to a person because the FBI put him on a list,
that's sort of a slippery slope, in my opinion.

~~~
dysfunction
But I didn't say they could do anything to a person- I said they could lie to
them. It doesn't matter how sure you are that someone is a suspect for
something like this, because nobody's rights are being infringed.

------
fenomas
To the many commenting that they don't see anything wrong with feds lying
during an investigation, the issue here isn't that they lied, but that they
used journalism as a cover. There's a long history of contention over such
practices - see for example this article on journalism and the CIA:

[https://www.cpj.org/attacks96/sreports/cia.html](https://www.cpj.org/attacks96/sreports/cia.html)

------
canvia
Not the first time for something like this
[http://seattletimes.com/html/localnews/2024888170_fbinewspap...](http://seattletimes.com/html/localnews/2024888170_fbinewspaper1xml.html)

~~~
rmxt
I believe that both the submitted article and your link are referring to the
same incident. (Though I wouldn't be surprised if there are other similar
incidents out there.)

Edit: Some clarification here:
[http://seattletimes.com/html/localnews/2024894799_fbifakesto...](http://seattletimes.com/html/localnews/2024894799_fbifakestoryxml.html)

------
maerF0x0
No parent would tell their kid "Deception is ok". "Thou shalt not lie"
concepts are in most religions[1].

And yet it's ok for those whom are supposed to be examples of the morally
upright to do so?

Hypocrites.

[1] -
[http://www.unification.net/ws/theme062.htm](http://www.unification.net/ws/theme062.htm)

~~~
gnopgnip
Would you say that police should not be allowed to lie to criminals?

------
DickingAround
The FBI and government in general seem to think lying is appropriate and moral
in every situation.

------
guelo
> As a result of the suspect clicking on a link relating to the fake story,
> the agency was able to track him down using court-authorized tools

I don't care about the impersonation but hacking into your computer using
zero-days seems evil.

~~~
oh_sigh
More or less evil than terrorizing groups with bomb threats?

------
spacefight
That is not acceptable, not morally right and just plain wrong.

Lies and deception everywhere - what if the guy turned out not guilty? Do they
still think it's fine?

~~~
wpietri
I don't see anything wrong with deceiving suspects during the course of an
investigation. Undercover work and stings are a time-honored part of law
enforcement. They're a great way to catch corrupt politicians, for example.

If the guy turned out to not be guilty, then... he would have clicked on a
misleading link title and read a fake news article. Oh noes! That's Taboola's
entire business model. I'm much happier with small deceptions used to catch
criminals than when deception is used for profit on an industrial scale.

~~~
maerF0x0
Lesser of two evils is still an evil.

------
hotgoldminer
>"The FBI may have intended this false story as a trap for only one person.
However, the individual could easily have reposted this story to social
networks, distributing to thousands of people, under our name, what was
essentially a piece of government disinformation."

They're really grasping at straws to explain why this is bad. For me, the
insidiousness of the tactic is apparent--one would think the AP would be more
adept at crafting a response. No entity can rightfully leverage the
brand/trust/profile of another.

------
6stringmerc
They're branching out from simply manufacturing their own criminals to catch
now? I guess I'm sort of impressed. It's like a child, learning to tie their
shoes, except this child has a gun and can send you to jail.

[http://en.wikipedia.org/wiki/Hosam_Maher_Husein_Smadi](http://en.wikipedia.org/wiki/Hosam_Maher_Husein_Smadi)

~~~
opendais
The guy planted and tried to set off a bomb. I don't have any sympathy for
him.

~~~
ta75757
The point isn't whether he's guilty or not, the point is whether the actions
of law enforcement are useful. If they create the crime they then prevent, did
they really prevent a crime?

The answer is "just barely". Sure, real terrorists could have recruited this
guy and given him a bomb, but then the real threat is still those terrorist
who already have a bomb and not this guy.

~~~
logfromblammo
The traditional crime triangle is motive, method, and opportunity.

If you find someone who has nothing more than motive, and you supply him with
both method and the illusion of opportunity, you have done little more than to
prove that he had motive.

That is, you are prosecuting him on the basis of his opinions and beliefs.
Thought crime.

Undercover policing only works when the crime to be prevented would have
definitely occurred in the absence of the undercover cop. What they can do
effectively is take an potential opportunity and convert it into the illusion
of opportunity.

So rather than supplying the guy with bomb parts, wait until he has actual
bomb parts, and replace them with nonfunctional replicas. Then you wait for
him to press the button. That way, there is no doubt as to the origin of the
criminal intent. You stopped a real crime instead of abetting a fake one.

You can't just target someone with motive and trick him into acting on it.
That's like putting a "live grenade dispenser" next to the number ticket roll
at the DMV. Everyone walking in that door has daydreamed about enacting some
form of violence against the state clerks, especially when the wait is long
and none of the people behind the desk seem to be actually working. But no one
actually tosses grenades at the DMV. They just wish someone would. Or for
those who would, they have the foresight to not bring their grenades with them
when renewing their license, to avoid the temptation. But if you stand there
and give out free grenades to people waiting in line, a few of them will have
their pins pulled. If they spit out a puff of confetti instead of flaming
death, you haven't really prevented any crime. You just proved that some
people hate the DMV. You could have accomplished the same thing by circulating
a petition to lawfully dismantle the bureaucracy.

So I disagree that the answer is "just barely". I think it is "absolutely
not".

~~~
leephillips
I understand what you're saying and there is merit to your point of view. But,
I want the people who pulled the pins on the fake grenades in jail for life.
They attempted mass murder. I don't want them on the street when the only
thing preventing them from murdering people is a temporary lack of
convenience.

~~~
logfromblammo
So how would you deal with the people passing out fake grenades while telling
everyone they are real? Would it be any different if they passed out real
grenades and said they were fake?

Would you support preemptively testing everyone in similar ways, and
imprisoning all those who failed? If you described the hypothetical on a
paper, and asked people to rate their likelihood of pulling the pin on the
imaginary grenade in the imaginary DMV, on a scale from 0 (never) to 10
(always), what numbers would they have to choose to remain free?

I, for one, am completely uncomfortable imprisoning people based solely on
their psychological profile rather than as punishment for actual harm
inflicted in the real world. Some undercover investigations do seem eerily
similar to selecting someone based on a profile and then continually testing
him until he fails to meet the "stay out of jail" threshold. It just doesn't
seem like ethical policing to me.

------
knd775
Someone seems to be downvoting anyone that they don't agree with.

 _edit_ I am being downvoted now, possibly because people don't know what I am
referring to. When there were only a dozen comments or so, you could very
clearly see that everyone with a certain opinion was getting downvoted.

~~~
bkmartin
I noticed this as well, glad you pointed it out.

*as soon as I posted the the refreshed page had all the downvotes back to normal.

------
xhevahir
Cops are allowed by the Supreme Court to lie. Is AP just now catching on to
this?

