On March 16, David McKay goes on trial for a second time. The jury must decide whether an FBI informant named Brandon Darby induced McKay to make Molotov cocktails on the eve of the Republican National Convention. The FBI’s use of informants in domestic intelligence operations raises critical questions – are we giving to much leeway to the FBI? What are the implications for civil liberties when paid informants provoke illegal activity?
There are pressures inherent in the role of informant. Informants must choose between two roles: the passive observer who yields little information and influence, or the more active participant who produces more and better information but also affects what happens. Taking a more active role raises the chance of the informant's possible complicity and entrapment. Brandon Darby clearly chose the more active role. And a previous jury evaluating the case of David McKay deadlocked and declined to convict him because of questions that Darby crossed the line and instigated lawbreaking.
Since 9/11, the FBI, Homeland Security, and Department of Defense have been keeping tabs on political protest under the guise of anti-terrorism. Hundreds upon hundreds (if not thousands) of meetings and protests have undergone government "tracking" and "collecting" via intense, invasive monitoring. But when the FBI infiltrates groups with informants, they easily slip from passive to aggressive action that can disrupt, discredit, and punish dissent.
I. David McKay – Entrapped by the FBI
For 18 months before the 2008 RNC, the government paid over $11,000 to Darby, a gun-toting, outspoken Texas radical to spy on fellow activists in Austin, then in St. Paul during the convention. After being hired by the FBI, Darby induced McKay (22) and Bradley Crowder (23) to concoct eight Molotov cocktails.
McKay admits to assembling the Molotov cocktails with his friend Crowder (who entered into a forgiving plea bargain, and is currently serving a maximum of 30 months in prison) and storing them in his basement.
To find entrapment, the new jury must decide that Darby convinced McKay to commit the crime, and that McKay had no plan of making Molotov cocktails before he met Darby in March 2008.
II. FBI Hires Veteran Activist with a Hero Complex
Any prosecutor has an uphill battle painting Darby as an innocent bystander. Darby is the kind of character who might provoke others to violence. It’s been roughly two months since he was publicly identified as the confidential source who reported on the Austin Affinity Group. In that time, friends and long-time associates have painted a picture of Darby using terms like “charismatic,” “manic and reckless,” “divisive,” “paranoid,” “hero complex,” “volatile history with women,” “a strong authoritarian streak,” “manipulator,” “penchant for violent rhetoric.”
Then there’s my favorite by his long-time collaborator Lisa Fithian: “He did a lot of Wild West shit – Mister Macho Action Hero.” This sums up the individual the FBI knew they were getting into bed with.
III. Beware of Ideologically-Motivated Informers
Darby came to the FBI with a personal and ideological axe to grind. After returning from a trip to Venezuela, Darby says he began to see major problems with certain actions that were being planned for the RNC, particularly by “anarchists” and the RNC Welcoming Committee. Rather than share his concerns and conversion with his friends, he offered his services to the FBI.
After a requisite “suitability determination,” the FBI tasked Darby to spy on a range of Austin-area activists. Keep in mind, Darby had been a self-identified revolutionary who slept with a gun under his pillow, according to friends. He brought an AK-47 and a handgun with him to New Orleans to help rescue an old friend in a neighborhood inundated with muddy water and White militias in the aftermath of Hurricane Katrina.
Given Darby’s background, it is curious how the FBI could find such a person suitable for informing. Factors in the FBI’s “Suitability Determination” include the person’s motivation and dangerousness.
Sociologist Gary T. Marx’s study of agent provocateurs and informants suggests that the nature of informing may lead the informer beyond his or her assigned task, particularly when the motivation is personal or ideological. In his study, Marx identifies potential motives of informants: patriotism, coercion, financial reward, activist disaffection, double agents who want to assist the movement, converts who lose their zeal, and provocateurs who find success in the role by exceeding their mandate.
Although the FBI paid Darby over $11,000 for his efforts, money did not appear to motivate Darby. Instead, it seems he was angry or resentful toward fellow activists. According to reports, Darby felt that Malik Rahim and Common Ground Relief of New Orleans put him in a compromising position when they sent him to Venezuela on a mission to get funding for the residents of New Orleans.
Such motives may produce poor information. Disgruntled informants tend to exaggerate or even lie: “There is no limit to which people will go to get even for a real or imagined wrong.”
Darby shared his employers’ assumptions that “anarchists” were determined to use violence. “Such agents may thus feel free to encourage activists to take violent action or to report false information. They may feel that the group poses such a severe threat that any means (even lying to superiors) are necessary to destroy it,” warns Marx.
Exaggerating the importance of the group may make the provocateur feel that what he or she does is significant. Further, wishful thinking may lead agents like Darby to confuse vague revolutionary rhetoric with specific plans.
As an informant, the FBI did not require Darby to shed his revolutionary fervor. Militant language and a reckless temperament remained part of his public persona. Darby’s contact agent or “handler,” Agent Timothy Sellers, asked him to get involved with the Austin Affinity Group’s plans to attend the RNC. Agent Sellers cautioned Darby not to “take a lead role,” but such a directive was impossible to abide by under the circumstances. The group sought out Darby’s leadership because of his credibility and reputation. Darby proposed weekly meetings and told Crowder he would email him daily updates.
At the first meeting, he said, “I’m going to shut this fucker [the RNC] down” and “any group I go with will be successful.” He lambasted protesters for looking like a bunch of “tofu-eaters” who needed to “start eating meat and bulk up” so they could fight. Darby taught McKay and Crowder fighting techniques, such as head-butting and evasive jiu-jitsu moves. It comes as no surprise that Agent Sellers told Darby to keep his email reports shorter in the future.
There is no evidence that Darby toned down his rhetoric. In fact, there was no reason for him to. His secret status may have freed him from the constraints that more prudent activists had to contend with. He could act out his feelings of aggression or militancy without fear of reprisal. As Frank Donner has observed, “the infiltrator’s secret knowledge that he alone in the group is immune from accountability for his acts dissolves all restraints on his zeal.”
Moreover, the FBI did little to control Darby or keep tabs on him. Agent Sellers did not include details of Darby’s words in his reports. On the night that Darby wore a wire to transmit his conversation with McKay about the Molotov cocktails, Sellers took notes—no audio recording was made.
Really? It’s 2008 and the FBI didn’t record this conversation?
Further, according to defense testimony at the first trial, Darby provoked McKay and Crowder to make Molotov cocktails. Darby first helped police seize 35 homemade shields they had brought to St. Paul.
The seizure of these shields was the tipping point. According to McKay, Darby was livid that the police had seized the shields. Darby created the idea that they, as an affinity group, create multiple Molotov cocktails. He said, “We’re not going to take this lying down. You’ve got to do something about it.”
The night after the shields were seized, McKay bought the makings for Molotov cocktails at Wal-Mart. Darby claims that he urged caution and restraint, but in text messages to McKay while he was casing a police parking lot, Darby wrote, “It’s your call. I support you making whatever choice you are comfortable with. Be proud of yourself for your work and take a chill.” When McKay expressed that there were too many cops around, Darby texted, “it’s all good, sometimes it’s best to fight another day … – it’s ok, I’ll support you.”
McKay's defense is largely circumstantial, but compelling. You have an informant with no apparent qualms about lying to his closest friends. A charismatic leader with a reputation for defying authority who became ideologically opposed to the anarchists’ message and tactics, being handled by an agent untrained in handling informants.
Sounds like the perfect setting for an agent provocateur to thrive.
IV. Anna the Informer and Beyond
Brandon Darby should be considered alongside another recent informer who promoted violence among her targets, Anna. Anna was recruited by the FBI in Miami to infiltrate twelve anarchist groups before she helped Eric McDavid purchase bomb making materials for a plot in California aimed at environmental targets.
The FBI paid Anna $76,000 from January 2004 to 2006 as she traveled from one protest to another, including the G8 and Organization of American States meeting in Georgia, the Democratic National Convention in Boston, the New York Republican National Convention, and Crimethinc in Des Moines. Along the way, she tried to provoke conflict and spark violent incidents, according to many who knew her.
After she met McDavid and his friends, Anna taught them how to make bombs, provided funds, paid their rent, and repeatedly threatened to leave if they “didn’t do something.” Anna pushed others to take more and more aggressive action. So, is the FBI trying to prevent violence or provoke it?
V. Using Intelligence to Punish Dissent
The discovery of an informer can demoralize activists; violence can discredit and split the movement. The McKay and McDavid cases illustrate how the FBI facilitates provocateurs. McKay’s case is not yet over, but the failure of the FBI to win outright is reminiscent of the 2006 Sears Tower case, when a jury refused to convict seven Florida men of plotting to bomb the landmark after being egged on by an FBI informant.
When you combine legislation institutionalizing guilt by association with expanded domestic surveillance, a preventive philosophy of policing, and an ideology that conflates protest with terrorism, you get the pre-conditions for a return to the abuses of the FBI’s COINTELPRO program, which aimed to break the back of People's movements during the Sixties.
Given the government’s dismal record of using spies and agent provocateurs at the 2008 RNC in St. Paul, the RNC in New York in 2004 and in Philadelphia in 2000 isn’t it time for the majority in Congress to exercise serious oversight for America’s domestic “security” agency to protect the right to expression free from government interference?
"so take care of your freedom
they'll never know
yeah take good care of your freedom
they'll never know"
- Flogging Molly, "Lightning Storm"
 Karmen, A, “Agents Provocateurs in the Contemporary U.S. New Left Movement,” Criminology: A Radical Perspective, in Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” American Journal of Sociology 80 (Sept. 1974) at 422.
 Diana Welch, “RNC Aftermath,” The Austin Chronicle, January 16, 2009. Crowder has not yet been sentenced.
 Diana Welch, “The Informant: Revolutionary to Rat,” The Austin Chronicle, Jan. 23, 2009, p. 7.
 Diana Welch, “The Informant,” p. 7.
 CI Guidelines Sec. II(A)(1)(g), (m).
 Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant" at pp. 415-421.
 Colin Moynihan, “Activist Unmasks himself as Federal Informant in G.O.P. Convention Case,” New York Times, Jan. 5, 2009.
 M. McMann, ‘The police and the Confidential Informant.” M.A. thesis, University of Indiana (1954) in Marx at 416, n. 17.
 Marx, 420.
 Darby admitted making these statements and incidents during his testimony at trial. The Austin People’s Legal Collective provides unofficial notes of the trial based on verbatim note-taking, available athttp://brandondarby.com
 Frank Donner, The Age of Surveillance (1971) in Marx at p. 434.
 Diana Welch, “The Informant”