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November 30, 2010

"Was FBI grooming Portland suspect for terror?"

The title of this post is the headline of this article in the Seattle Times, which stuck me as blog-worthy in light of our class discussions today.  Here is how the piece starts:

FBI undercover operatives helped fund Mohamed Osman Mohamud's would-be terrorism plot to detonate a car bomb during a Christmas tree-lighting ceremony on Friday at a crowded public square in the heart of the city.

Operatives helped him find components needed to create a bomb and schooled the 19-year-old Somali-born man in how to set off the explosives. The sting operation enabled the FBI to amass a formidable amount of details about what a grand-jury indictment Monday charged was Mohamud's attempt to use a car bomb as a "weapon of mass destruction."

But Mohamud's attorneys and some local Muslims are raising questions about whether the operatives who posed as co-conspirators played their role too well. Defense attorney Steve Sady questioned whether the operatives were "basically grooming" Mohamud to try to commit a terrorist attack.

"The information released by the government raises serious concerns about the government manufacturing a crime," according to a statement released by Sady and Steven Wax, public defenders assigned to represent Mohamud.

Mohamud, through his attorneys, pleaded not guilty on Monday.

Law-enforcement officials say that they gave Mohamud plenty of opportunities to opt out of the bomb plan and that he was committed to carrying out the crime at the time, place and location of his choosing.

"I am confident there is no entrapment here," Attorney General Eric Holder said Monday in Washington, D.C. "There were ... a number of opportunities ... that the defendant in this matter was given to retreat, to take a different path. He chose at every step to continue."

November 30, 2010 in Current Affairs, Notable real cases | Permalink


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Interesting article...where is the liability line drawn between someone having their own criminal intent/thoughts versus others developing in that person the ability to act on those thoughts? It's tough because, just like we talked about in class, we want to be protected...but is the best way to protect the country to empower a potential terrorist?

I thought some of the discussion on terrorism today was interesting. Here is an article that talks about another terrorist bombing in Oregon...only in this case, the bomb actually went off killing 2 police officers and maiming a 3rd person. The two alleged bombers are on trial right now.


Posted by: Luke@CrimLaw | Nov 30, 2010 8:55:33 PM

Thank you for posting this, Professor Berman! I was actually going to link to a similar article because I found the steps that the FBI took to solidify Mohamud's attempted terrorist attack to be quite appalling. It appears to me as though Mohamud had the criminal intent, he wanted to commit a terrorist attack, but did not have the tools nor knowledge to complete these acts on his own. And perhaps, if the FBI had not intervened, he would have continued to have these terroristic thoughts, but no ability nor true desire to act on them.

I think that Luke makes a great point about a person's own criminal intent versus the ability of another to make that intent a reality. While we do want to protect society from potential offenders, I do not think that it is in the best interest of the FBI and other law enforcement officials to give these potential offenders the tools they need to act on their desires. What if Mohamud took these skills that he learned from the FBI operatives and had made another bomb, one that he did not disclose, and detonated it several weeks earlier? How would the FBI explain that?

I feel as though there is a strong argument for entrapment in this case, as at the time of meeting with the FBI operatives, Mohamud's plans were merely ideas, with no known ability to act on them. It was the FBI that financed the plot, rented him an apartment, and groomed him to attempt to commit the terrorist attack. However, considering the public's fear of terrorism, and the pressure of the federal government to remove potential terrorists from society, Mohamud will more than likely be found guilty.

Posted by: Paia LaPalombara | Nov 30, 2010 10:00:56 PM

Frankly, I don't care if they sent him a pamphlet entitled "How to Build a Bomb Out of Items in Your Apartment, Mohamed Osman Mohamud" By Eric Holder. We should not afford him the defense of entrapment because we're uncertain he would have committed an act had the information/opportunities not been present.

He took the information/opportunities given and with ample time to change course (including numerous non-violent alternatives suggested by the same agents) believed he was going to kill many innocent people.

Why get hung-up on whether he might not have committed terrorist actions had this information/opportunity not be given?

Posted by: JT | Dec 1, 2010 8:56:59 AM

I tend to agree with JT on this one.

Regardless of whether or not he might have carried out this plot without the help of FBI agents is irrelevant to me. He took the substantive steps in order to turn this plan into a reality, and no matter where you draw the line he committed that "last act". No one was forcing him to do this, and while options (even arguably temptations) were put at his disposal, he is the one who turned his bad intent into an overt act. Just because he could not have turned this intent a reality completely on his own does not make him less culpable.

We don't want to punish merely bad intent because people have the ability to change their minds. The fact of the matter here is that he took the resources that were given to him in order to capitalize on his bad intent – he made the conscious decision not to change his mind. His intent should therefore be punishable, regardless of who provided the tools to turn it into a reality. If he had not had the bad intent to begin with, then the FBI's efforts would have been futile because he likely would have not even taken the first step towards attempting the act. Even if the officials hadn’t explicitly given him alternatives to the opt out of the bomb plan, it was his own initial intent that allowed the scenario to transpire.

Posted by: Andrea Green | Dec 1, 2010 12:07:50 PM

Although the idea of our government luring people into criminal conduct is disturbing on many levels, but especially because we don't generally like to equate justice with entrapment or anything close to it, I agree with Andrea and JT that when certain steps are taken toward the completion of a crime and the individual fails to back down, the intent seems to still be there, perhaps making some punishment justifiable. However, the fact that intent is intangible, purely theoretical makes it impossible to argue with certainty that the person would have committed the crime had he/she been afforded the opportunity to carry on. We are uncomfortable with punishing someone solely on the basis of bad intent. Conversely, I think this problem gives the authorities an incentive to delve further into the set up, so that the individual is not just buying the material necessary, but constructing and setting up the bomb or whatever at a specific place. Now the attempt has a "quasi-act" associated with it since it's more than just mere preparation. Additionally, purpose (knowing) becomes harder to disprove once the person is actually doing something. But the more that the police/FBI does to make sure it has a solid attempt case, the more attempt looks like entrapment.

Posted by: Katarina Karac | Dec 1, 2010 2:03:25 PM

I tend to agree with Andrea and JT as well. I understand where the concern is with the issue of entrapment, but just because the FBI provided him with the means to commit the crime (so he thought), as far as he was concerned, he was buying the materials from any one else. There was no coercion to continue taking steps towards his bomb plot. It seems significant that not only that he had the bad mental state, but that he bought the materials with ample opportunity to stop doing so or abandon the plan all together. In terms of our mens rea of attempt discussion in class and our reading, these seemed to be "substantial steps" towards his ultimate goal, which got him relatively close to being able to do so. His actions buying the materials from the FBI are equivalent to buying them from any other seller, for which he would be criminally liable.

However, I see where this may cause problems in enabling law enforcement to create "set-ups" increasingly frequently, in targeting people they know to have the intent to carry out such criminal acts. It seems hard to establish exactly where the line should be drawn, but in this situation it would seem rather difficult to justify allowing Mohamed to escape responsibility becase, for lack of better wording, he was duped.

Posted by: Mallika Reddy | Dec 1, 2010 7:30:22 PM

When all is said and done, this guy used his cell phone to make a phone call which he thought was going to detonate a bomb. It turned out not to be the case, but he didn't know this. The fact that he was willing to kill or injure thousands of people makes him 1) dangerous to society to the extent that we should subject him to the criminal justice system and 2) morally blameworthy to the extent that we should subject him to the criminal justice system. He did not complete his criminal act of harming people, but I claim that his moral blameworthiness is intrinsic. It is based not on the results of his outward acts but on the depravity of his mind and the disregard for the life and health of others that he exhibits while acting.

The police always have two choices available to them. They can try to catch criminals before they complete their criminal acts (crime prevention) or they can try to catch criminals after they complete their criminal acts. I prefer the former. If a child molester wants my daughter, I'd rather have a police officer pretending to be an adolescent girl luring him into custody than an officer investigating my daughter's rape.

Furthermore, we need to remember that the police do not initiate the contact in these cases. I have never been reading espn.com at home and suddenly had a chat window pop-up with someone claiming to be a 14-year-old girl. This just doesn't happen. To encounter police posing as young girls or terrorists or whatever, you have to seek out those types of people first. If you go online looking for fellow haters of the United States and you start posting your crap on message boards or in chat rooms, under-cover agents may respond posing as sympethizers. Still, if one of them says, "I can help you get some bomb-making materials", you can always say no and avoid all liability.

Posted by: Keith Edwards (student) | Dec 1, 2010 7:48:20 PM

So, this definitely doesn't feel like entrapment, if for no other reason than the FBI seems acutely aware that the defense would get raised to the extent they were sure to destroy the possibility of its being used.

It's a fascinating debate as to whether or not the Feds should use tactics like this, and I'm not sure where I come down on it.

On one hand, I agree with Keith and JT. If someone has a sociopathic mindset such that they want to kill a bunch of people, they are going to find the means to do it. If they can be identified and incapacitated without being overtly led into an act that subjects them to criminal liability, then it seems the good outweighs the bad. Imagine if someone had got to Timothy McVeigh before he could drive that truck into the garage of the OKC Federal Building.

However, I can't help but ponder the inconsistencies present here. Assuming he wasn't affirmatively contacted by an FBI agent, he was making some sort of representations on the internet and solicited aid from an undercover agent. If the agent had not provided assistance, would he have gotten any further? Would he have just kept spouting anti-American rhetoric on the internet? We let the guy who wrote The Turner Diaries walk free, and you could argue his work was a direct influence on any number of domestic terrorist acts by white supremacists.

I'm not sure any of this was coherent (probably wasn't), but one thing I'm curious about is this: is the entrapment defense effectively dead for accusations of terrorism? Is there any jury in post-9/11 defense that's going to acquit someone on the grounds that he was led into setting a bomb off if the government can show he possessed any sort of intent to do it?

Posted by: T.O. | Dec 1, 2010 11:07:15 PM

T.O. You asked, "If the agent had not provided assistance, would he have gotten any further? Would he have just kept spouting anti-American rhetoric on the internet?"

I think that we need to "reverse-engineer" this situation as Prof. Berman would say. First, if someone gets on the internet and starts spouting off anti-American ideas, why would the FBI care about that? Do anti-American sentiments posted online hurt anyone? Of course not. Second, if the FBI did feel the need to monitor certain websites or the content of certain posts, why did they choose the specific sites that this young man was visiting? Third, after choosing the websites to monitor, how would the FBI agents know the proper things to say in order to pass themselves off as believable sympathizers and bomb part suppliers?

The answers to all of these questions rests in the fact that people have gotten on these sites, have made contact with actual anti-american sympathizers and bomb-part suppliers, and have committed terrorist attacks. The FBI has learned how it works and has become good at stopping it. Again going back to the child molester analogy, the police spend their time in chat rooms impersonating young girls because pedophiles have gotten access to young girls through those chat rooms. In the course of investigating completed crimes, the police have learned of one method that criminals use to complete their particular crime. Then they are able to take counter-measures to stop that method from being used in the future. Police investigation often lags behind criminal behavior.

All of this was meant to address your original question of would he have gotten any further in his plans without the aid of the FBI agents? I think he would have. If it hadn't been FBI agents that had responded to his posts or chat, then someone much more dangerous could have. I'd always prefer the police pose as criminals to actual criminals helping a prospective terrorist.

Posted by: Keith Edwards (student) | Dec 2, 2010 9:24:57 AM

Just because he was duped, to use Mallika's word, people want to feel bad for him. Well, he was duped but he would have done it anyway. Everything else equal, when you change the result from him being duped to him not being duped-- things look a lot worse because that bomb would probably have exploded. From a utilitarian standpoint, we should be happy that we have the result where no one was harmed but he was duped and not the result where people were harmed/killed but he wasn't duped. I think this case is straight forward because we actually know he would have done it. I don't think a jury would buy into an entrapment defense when they know he would have done it. As Keith said, its a tough argument to make that we'd rather have criminals helping a prospective terrorist than police...

Posted by: Rachel Ladan | Dec 2, 2010 12:24:39 PM

I agree with Paia and Luke on the issue of his intent. Understanding that he had a bad intent and that we want to protect society from potential terrorist attack but I think we need to draw a line between the role the police having in escalating and contributing to the situation. The purpose of entrapment is to draw this line. How are we to know if he would have taken the steps to commit a terrorist act and that they weren't just a teenager's empty threats? The police could have taken steps to monitor him without actively participating in planning and carrying through the act. We need to consider what motiviation and or urging the police had in the situation. I don't think it is so much a matter of feeling sorry for him as Rachel mentions as it is wanting to define what role our police will play. The police weren't just monitoring him, they were conspiring with him and providing him the information and means necessary to carry out the act. Providing him with money, transportation, and ideas for making a bomb is crossing the line of entrapment in my view. They had too much of an hand in the commission of the attempt. If the police would have simply monitored him instead of actively participated there wouldn't be a concern of entrapment and they still could have accomplished the same result and thwarted his attempt. In class we talked about the different between preparation and attempt. I think his ideas were empty and wouldn't even constitute preparation, there was no preparation or attempt until the police literally funded and planned it for him. To me this is clearly entrapment.

Posted by: Kristin Hotaling | Dec 2, 2010 3:55:19 PM

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