Homeland Security Watch

News and analysis of critical issues in homeland security

December 1, 2010

Entrapped?

Filed under: General Homeland Security — by Mark Chubb on December 1, 2010

Mohamed Osman Mohamud Photo

Five years ago, Portland elected officials withdrew local police support for the Joint Terrorism Task Force amidst public concern that officers embedded with federal operations would not be subject to an appropriate degree of civilian oversight. Now, after the arrest of Somail-born Mohamed Osman Mohamud, age 19, on charges of attempting to use a weapon of mass destruction last Friday night during a Christmas tree lighting ceremony attended by some 10,000 people, this decision is under review.

Mr. Mohamud’s arrest followed a months’ long joint investigation by federal, state and local law enforcement officials. The mayor, who also serves as the commissioner responsible for police oversight, learned of the investigation only after the suspect’s arrest.

The mayor seems comfortable with the decision to keep him out of the loop. After all, such investigations are highly sensitive and may involve extraordinary risks to the undercover agents engaging the suspected terrorist, including risk to their personal safety and risks of failing to uncover elements of the plot or connections to networks of operatives that could harm others.

Any investigation that involves such risks to others would, it seems to me, also suggest a much higher risk to the investigation’s integrity in the event classified information was disclosed prematurely or inadvertently than would occur in a case where the risks to others was indeed minimal. In a case where law enforcement officials believe they have everything under control, the release of information should be of less importance or concern, but that was clearly not the case here.

This point is not lost on the defense team representing Mr. Mohamud or the prosecutors presenting the government’s case. Every effort seems to have been made to acknowledge and address risks that the government’s agents would be construed as having lured an innocent man into committing an otherwise unconscionable act. As such, they have gone to great pains to make clear that Mr. Mohamud was afforded opportunities to disavow his plan and change course at several points along the way. The defense seems to be less concerned with the availability of these opportunities than the relative ease with which Mr. Mohamud’s alleged criminal dispositions were facilitated by government agents.

Mayor Sam Adams indicated Monday in a live interview with CNN that he would have been given more information in advance had there been even the slightest chance that the attack would have posed a risk of harm to the public. This begs the question then what would the mayor know when and under what circumstances?

When confronted about the decision to withdraw Portland’s support for the Joint Terrorism Task Force in a Tuesday interview on NPR Mayor Adams indicated the city’s concerns included the risk of racial or religious profiling and other violations of individual civil liberties. He conceded that things had changed a lot in the country since that decision, and acknowledged that he had a great deal more confidence in the new U.S. Attorney and FBI special-agent-in-charge now posted in his city.

Assuming this is so, one might reasonably wonder what it is about them that gives him such confidence. The city was concerned that individuals and groups targeted by terrorism investigations might not receive appropriate due process protections. He expressed concern both about how oversight of these cases might be handled as they progressed and how suspects might be handled after their arrest.

Mayor Adams seems pleased that the case is heading through an Article 3 court as opposed to a military tribunal. And he believes the citizens of Portland who will be empaneled as jurors to decide Mr. Mohamud’s fate possess the traits necessary to approach the evidence objectively.

If so, they will find a challenging set of circumstances placed before them. Published accounts of statements from officials at the local level all the way up to Attorney General Eric Holder indicate that those involved in the case proceeded mindful of past precedents associated with entrapment. These concerns seem justified on one hand: The defense has already made clear they will pursue this avenue of argumentation. But on the other hand they have little to fear: No federal jury since 9/11 has acquitted a defendant on the basis of arguments of entrapment.

How this jury will decide may well depend on how they view the choices put before the defendant. They will undoubtedly be encouraged to consider not just the weight of the choices in terms of their potential outcomes, but also the ease with which each could be pursued by the defendant. The latter part is all-important but often overlooked in such cases. Many decisions that appear irrational to others seem perfectly rational to us, especially if they reinforce the image we have of ourselves and the commitments we have previously made. In this regard, the first meeting between the agents and young Mr. Mohamud could well prove the all-important key to how this case unfolds in a courtroom. And here is where the government’s case is the weakest: They have already acknowledged that recording equipment intended to capture these conversations failed. The only record they have of these conversations is the agents’ reports of their contact.

The ideal of civilian oversight of police is a hallmark of our system of government. It ranks alongside due process and privacy in terms of principles we regard as core elements of our democratic system. Insofar as we believe we have bo room for error when it comes to protecting our nation from the potential harm of terrorism, it may soon become equally clear that we have no room for error when it comes to managing these cases.

As the Portland City Council takes up the question of whether or not to rejoin the Joint Terrorism Task Force, they will have many things to consider besides the change in politically climate nationally and locally. They must also consider what civilian authorities responsible for police oversight need to know and when they need to know it. The answers to both the general and specific questions should focus on making the community safer while upholding its commitment to justice rather than making up for the past.

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7 Comments »

Comment by William R. Cumming

December 1, 2010 @ 4:23 am

Well the fundamental conundrum is that our system of government cannot afford to have a Constitutional lawyer acting as the policeman on the beat. Perhaps the best justification for having an expert FBI that once had gold badge agents that only had been fully qualified as lawyers or accountants. No more. Also the FUSION CENTERS authorized by statute in 2007 but created before that would seem to have the need for legal advisors being attached. That said, and being no expert in criminal law, due to the extreme precautions taken prior to arrest by the arresting authorities it does appear that the burden on the STATE or the FEDERAL authorities to prove guilt beyond reasonable doubt, whatever standards of entrapment apply in terrorism cases in the 9th Circuit or are developed appear to give the prosecution a fair chance for success. But it is the carefully fought out in the legal arena individual cases that arise that are the fundamental appeal of the common law. Trial by Jury also is a fundamental protection. After all the courts serve “Justice” not necessarily the whole truth, nothing but the truth, and only the truth standard. Will defense lawyers leap to the defense of this young defendant, probably and hopefully. Troubling to me is not the standards set for “entrapment” but some signs of pychosis. Is the McNaughten Rule in England rejected by the courts in the US as the insanity standard–technically there is no insanity defense in the US–up for review again? Is does appear to me that many of the world’s problems are now driven by religions that cast doubt on whether individual followers can in fact be judged under the American law standards of knowing the difference between right and wrong. Killing of innocents–those who have done no individual harm to the killers–seems chillingly common in the world today. This intersection of law and humanity is worthy of the greatest thought and effort of our democratic society in order to preserve it.
And as a final thought, one of the terrorist events I seem to remember also occurring in Oregon was the poisoning of a salad bar by some religious fanatics. Perhaps my memory is wrong. But what is it about Oregon that makes it conducive to extremists. Is it somehow different than other STATES? Or is this just a standard generic type of terrorism in the 21st century of American life?

Comment by Mark Chubb

December 1, 2010 @ 9:52 pm

Bill, your analysis of how we got here and what may happen when Mr. Mohamud goes to trial strike me as fundamentally sound. I am wondering, however, how a jury composed of Oregonians will interpret the issues of fact in this case. It seems unlikely to me that a federal judge can or would instruct a jury that the precautions taken by the investigators do not constitute entrapment as a matter of law alone. As such, a jury will have considerale latitude to consider defense arguments. (Have no fear: Federal public defender Steven Wax will give Mr. Mohamud a top-notch defense.)

Given the public reluctance in Portland to support JTTF participation in the past, I imagine members of the jury pool will be quite sensitive to arguments that the government exceeded its mandate in pursuing Mr. Mohamud in the fashion it did. That said, a brush with death, even if it was never likely to occur under the circumstances, has a sobering effect on people and anything could happen.

The question of whether the city will authorize its police to rejoin JTTF may well serve as an indicator of how the community will respond to this case as it proceeds. If as people learn more about the government’s efforts and its case against Mr. Mohamud they begin to believe he was simply a misguided and directionless youth led astray by the ease with which he was able to bring his fantasies to life then we may well have reason to wonder about the government’s success at trial.

Judging by what people who knew this young man are now saying about him, I am beginning to wonder myself (as you seem to be as well) whether he pursued fanatic Islam at all or was simply grasping at opportunities to give his life direction and meaning. His family’s refugee experience may have had a powerful effect both on his predisposition to seek solace in Islam as well as his willingness to resort to violence when other options were clearly available.

For my money at least, this will be one of the more interesting cases we have since since 9/11 because it will test the limits both of what we consider terrorism and what role we are willing to let law enforcement play in protecting us.

Comment by Philip J. Palin

December 2, 2010 @ 7:04 am

The legal issue of entrapment will be more easily resolved than the ethical issue of shared responsibility and individual accountability.

The FBI must not entrap. But it is not reasonable — it seems to me — to expect the FBI to be an agent of personal redemption.

Once law enforcement is aware of a situation their mere involvement may transform the situation (consider a social application of the Heisenberg Principle). This involvement may encourage the suspect to make choices he or she would not have otherwise made. But this does not — it seems to me — remove the individual’s accountability for such choices.

At some point in the last four or five years it was probably possible for M.O.M. to be positively engaged and redirected. If so, this week he would be studying for finals instead of sitting in jail. Individual and shared risk would have been transformed into individual and shared opportunity.

This process of positive engagement is not in my judgment the task of the FBI or other branches of law enforcement. Even the most ambitious community policing depends primarily on elements of the community other than law enforcement.

What families, schools, religious institutions and others can learn from law enforcement is the need for organized, pro-active observation, listening, and engagement. In a less anonymous era this early warning system was operationalized through a variety of informal means. To reclaim these benefits most of our communities will now require explicit effort.

Comment by Entrapped Or Aided by Incompetent Local Officials

December 2, 2010 @ 10:58 am

We are at war whether with those at a distance or those among us who choose to harm, to kill any fellow American, even the children of Portland so jeopardized by the local decision-makers….

To these Portland jokesters, the fundamentalist seeks our demise and you make such absurd and compromising rulings….I think you should be judged by the community for your decisions almost killed children and placed us all in further disharmony and a higher alert color and security ssts from community to community which would have been necessary.

Precious American blood continues to be spilled far from our shore and here we have in Portland, Oregon, those “entrusted” by vote to serve the majority interests of the community and from observing their charade, their knowingly and willingly unsupportive and governmental decision making not to support the JTTF, there portrayal as – idiots – their incompetence in positions of responsibility, sworn by pledge the public safety of citizens and police, firefighters and EMT’s….

….while the court deals with this young man who knew exactly what his intent was in willingly stepping forward in planned attack to kill, to harm…the people of Orgeon and Portland specifically should do their utmost to boot these failed – politicians – whose rather alarming and inept decision-making could have killed children, innocent childen of the community invited by the comunity to participate in Christmas festivities having every right to be protected by the JTTF and every law enforcment officer and even vigilant citizen….

Wake up America…train more police dogs…call 911 at any concern or suspicious activity you may see, don’t underestimate the fella next to you.

The future looks far more bleak than you can imagine as more and more dastardly act will be considered by other governments and other groups and individuals as the incompetence from executive level to local community and the return of a doyble dip recession and a devalued euro will be more “frightful” than the Winter soon to arrive.

Our beloved Republic, the Democracy we Love and cherish is not only being challenged by Barry Obama’s Goldman Sachs administration seeking to undermine you in every way, jeopardizing your Rights as citizen, but you are hated by more than you think who manipulate the preciousness in word of the Koran conveying Love and compassion towards all fellow men, women and children as clerics use position and their lust in prowess for power to point to you as an American, an infidel, and portray you as evil with your Bible in hand….for after all, we are a Judeo-Christian nation!

Entrapped….the FBI and its team od experienced and dedicated men and women everywhere know better. This man intended to use an explosive device to kill and cripple little children in Portland where these idiots should be kicked out of office and maybe law enforcement and teh community should hold them accountable for allowing such a possibility to almost become a reality…

Remember, 10,000 people – many of whom were children -residents, school children of Portland were in attendance, all in the eye of the Somali born. The whispers and talk about town is without credibility when evaluating his disposition..that is heresay..what would be good to know would be to find out his closest associations and whether he has been in touch with his homeland, his birth place where one is killed for just looking at another in the wrong manner….admittingly more uncivilized than Portland and at the whim of bums – I vote to throw you out!

Christopher Tingus
chris.tingus@gmail.com

Comment by Mark Chubb

December 2, 2010 @ 11:17 am

Phil, I think we agree. I am wondering though how jurors will see the situation. Your analogy to the Heisenberg Uncertainty Principle is spot on. Any intervention or observation changes the future; by how much is often as uncertain if not more so than the result of the observation itself. We may never know what might have happened had Mr. Mohamud’s efforts to reach out to extremists been ignored or deemed too fantastic to be successful.

I for one have serious doubts that Mr. Mohamud would have posed a serious threat left entirely to his own devices. He clearly lacked the ability or motivation to succeed on any grand or sophisticated scale without substantial assistance. If we accept that people can be held accountable for their intentions as well as their actions, we have to ask what weight each element has in our decisions about guilt or innocence.

As more information comes out I think it will become clear that the FBI was right to act, but the crime they allege overstates Mr. Mohamud’s abilities and contribution to the enterprise while understating the influence of their actions. In this regard, I am reminded of the Milgram experiments rather than Heisenberg.

Comment by Entrapped Or Aided by Incompetent Local Officials

December 2, 2010 @ 11:20 am

We are at War! We are at War whether with those at a distance or those among us who choose to harm, to kill any fellow American, even the children of Portland so jeopardized by the local decision-makers….

To these Portland jokesters, the fundamentalist seeks our demise and you make such absurd and compromising rulings….Maybe the court should take a look at your absurd decision-making and may be some community group of Portland “concerned” citizens should haul you into court as well as you being judged by the community for your decisions which almost killed many loving and kind children as well as placing us all in further disharmony which would have caused us to see DHS raise the alert color from community to community across the nation and only encouraged more Muslim fundamentalists – cold blooded murderers – who hide behind religious pretext to kill with no place in the Koran or within the Mulim community here or at large globally professing such or supporting such acts of evil and killing another, judging another when only our Creator has such right….No one has the right to kill another whether in Portland or in Cairo.

Precious American blood continues to be spilled far from our shore and here we have in Portland, Oregon, those “entrusted” by vote to serve the majority interests of the community and from observing their charade, their knowingly and willingly unsupportive and governmental decision making not to support the JTTF, there portrayal as – idiots – their incompetence in positions of responsibility, sworn by pledge the public safety of citizens and police, firefighters and EMT’s….

….while the court deals with this young man who knew exactly what his intent was in willingly stepping forward in planned attack to kill, to harm…the people of Orgeon and Portland specifically should do their utmost to boot these failed – politicians – whose rather alarming and inept decision-making could have killed children, innocent childen of the community invited by the comunity to participate in Christmas festivities having every right to be protected by the JTTF and every law enforcment officer and even vigilant citizen….

Wake up America…train more police dogs…call 911 at any concern or suspicious activity you may see, don’t underestimate the fella next to you.

The future looks far more bleak than you can imagine as more and more dastardly act will be considered by other governments and other groups and individuals as the incompetence from executive level to local community and the return of a doyble dip recession and a devalued euro will be more “frightful” than the Winter soon to arrive.

Our beloved Republic, the Democracy we Love and cherish is not only being challenged by Barry Obama’s Goldman Sachs administration seeking to undermine you in every way, jeopardizing your Rights as citizen, but you are hated by more than you think who manipulate the preciousness in word of the Koran conveying Love and compassion towards all fellow men, women and children as clerics use position and their lust in prowess for power to point to you as an American, an infidel, and portray you as evil with your Bible in hand….for after all, we are a Judeo-Christian nation!

Entrapped….the FBI and its team od experienced and dedicated men and women everywhere know better. This man intended to use an explosive device to kill and cripple little children in Portland where these idiots should be kicked out of office and maybe law enforcement and the community should hold them accountable for allowing such a possibility to almost become a reality…

Remember, 10,000 people – many of whom were children -residents, school children of Portland were in attendance, all in the eye of the Somali born. The whispers and talk about town is without credibility when evaluating his disposition..that is heresay..what would be good to know would be to find out his closest associations and whether he has been in touch with his homeland, his birth place where one is killed for just looking at another in the wrong manner….admittingly more uncivilized than Portland and at the whim of bums – I vote to throw you out!

Christopher Tingus
chris.tingus@gmail.com

Pingback by Homeland Security Watch » Walking a tightrope: Holder on terrorist stings and entrapment

December 12, 2010 @ 6:40 pm

[…] The use of sting operations has been effective in flushing out several freelance operators.  There has, however, been concern that such tactics have amplified the actual threat presented by several suspects.  This was previously discussed at HLSWatch in regard to the wanna-be Portland Christmas Tree bomber. (Here and here.) […]

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