The arrests related to the alleged plot to attack JFK Airport last week has resurrected the controversy over the use of FBI informants.
The FBI had an inside man, an undercover operative who videotaped and recorded conversations with the suspects. He flew to Guyana with the suspects where the FBI says they tried to contact some Islamist groups. He helped them case the airport.
But here's the problem: The FBI's inside man was a twice-convicted drug dealer. He was helping the FBI in the hope that it would reduce his own prison sentence. Former federal prosecutor and Miami lawyer Neal Sonnett said the informant could have changed the tenor of the investigation because he had a lot at stake.
"Based on my reading of the complaint, it's clear that the informant had substantial incentive to paint these defendants in the worst possible light," Sonnet said. "The key is going to be how much additional evidence the FBI has and how carefully they have monitored and regulated the activities of this informant."
The FBI has a thick manual that governs how it uses confidential informants. The basic principle of entrapment is where a government agent walks into a case where no one has a predisposition to commit the crime and that person drives them to a crime they would never have committed otherwise.
Two years ago, the Justice Department's inspector general found that the FBI had problems with its undercover operations and, in particular, with its informant cases. The inspector general found that it had violated agency guidelines in 87 percent of the confidential informant cases he looked at. The FBI says it has changed the way it does things since then.
FBI Deputy Director John Miller says that informants are just a piece of an investigation, not the lynchpin.
"You don't want to put all your eggs in one basket here," he said. "You want the testimony of the cooperating witness to match with surveillance to match up with whatever defendants who to decided to cooperate after the arrests say, so it all comes together."
The FBI released excerpts from some of the recordings in the JFK case. They allege former JFK cargo worker Russell Defrietas said he wanted to launch an attack that would rival Sept. 11. In that context, he allegedly asked the informant, "Would you like to die as a martyr?"
In another secretly recorded conversation, Defrietas allegedly told the informant that he has hated the United States for years. What the complaint doesn't provide is how the informant got Defrietas to say these things. Neil Sonnett says that's what the defense has to focus on.
"Defense lawyers have to follow through meticulously on investigations to make sure the conversations that are taped are not conversations in which the informants are doing all the talking, and the people who are the defendants are not simply agreeing or placeholding their conversation by saying 'Uh-huh,'" he said. "The intent has to really be there."
Criminal defense attorney Josh Dratel has defended a number of terrorism suspects. He says that in his experience, talk is one thing; action is another.
"If you think about your conversations with people who are political and some of the things that they say they might do, or the things that they think are right or wrong, they may be completely separate from actually doing something like that or doing something about it," he said.
Three of the suspects in the JFK case are still in custody in Trinidad and awaiting an extradition hearing scheduled for Aug. 2. Russell Defrietas is in New York and is likely to be formally indicted on charges before the end of the month.