Tuesday, November 30, 2010

In U.S. Sting Operations, Questions of Entrapment

November 29, 2010

In U.S. Sting Operations, Questions of Entrapment

New York Times

WASHINGTON — The arrest on Friday of a Somali-born teenager who is accused of trying to detonate a car bomb at a crowded Christmas tree-lighting ceremony in Portland, Ore., has again thrown a spotlight on the government’s use of sting operations to capture terrorism suspects.

Some defense lawyers and civil rights advocates said the government’s tactics, particularly since the Sept. 11 attacks, have raised questions about the possible entrapment of people who pose no real danger but are enticed into pretend plots at the government’s urging.

But law enforcement officials said on Monday that agents and
prosecutors had carefully planned the tactics used in the undercover
operation that led to the arrest of the Somali-born teenager, Mohamed
Osman Mohamud, 19, a naturalized United States citizen. They said that Mr. Mohamud was given several opportunities to vent his anger in ways that would not be deadly, but that he refused each time.

“I am confident that there is no entrapment here, and no entrapment
claim will be found to be successful,” Attorney General Eric H. Holder
Jr. said Monday. “There were, as I said, a number of opportunities
that the subject in this matter, the defendant in this matter, was
given to retreat, to take a different path. He chose at every step to

Mr. Holder called the sting operation, in which Mr. Mohamud was under the scrutiny of federal agents for nearly six months, “part of a
forward-leaning way in which the Justice Department, the F.B.I., our
law enforcement partners at the state and local level are trying to
find people who are bound and determined to harm Americans and
American interests around the world.”

A study this year by the Center on Law and Security at New York
University, which tracks terrorism cases, found that of 156
prosecutions in what it identified as the most significant 50 cases
since 2001, informers were relied on in 97 of them, or 62 percent. The
entrapment defense has often been raised, but as of September, it had
never been successful in producing an acquittal in a post-Sept. 11
terrorism trial, the study found.

The Portland case resembles several others in which American
residents, inspired by militant Web sites, have tried to carry out
attacks in the name of the militant Islamic movement only to be
captured in a sting operation, with undercover F.B.I. agents or
informers playing the role of terrorists and, as in this case,
supplying a fake bomb.

In September 2009, Hosam Maher Husein Smadi, a 19-year old Jordanian citizen, was arrested and charged with placing a fake bomb at a Dallas skyscraper. In October, Farooque Ahmed, a 34-year-old naturalized American citizen born in Pakistan, was arrested and charged with plotting to bomb the Washington Metro after meeting with undercover agents and discussing his plans and surveillance activities, the authorities said.

Some Muslim leaders in Oregon questioned how the sting operation there was carried out.

Imtiaz Khan, the president of the Islamic Center of Portland and
Masjed As-Saber, a mosque where Mr. Mohamud worshiped, said several people at the mosque had questioned why law enforcement helped orchestrate such an elaborate plan for a terrorist act.

“They’re saying, ‘Why allow it to get to this public stunt? To put the
community on edge?’ ” Mr. Khan said.

Mr. Khan said he and other Muslim leaders met regularly with the
F.B.I. and other federal officials. In May, he was among a group of
Muslim leaders in the Portland area who issued a statement condemning an attempted bombing in Times Square and thanking law enforcement for its “outstanding work” in the case.

Jesse Day, a spokesman for the mosque and Islamic center, said the
circumstances of Mr. Mohamud’s arrest had stirred “some distrust, a
little bit, in the tactics” of law enforcement.

The government’s 36-page affidavit filed in the Oregon case lays out a
crucial conversation between Mr. Mohamud and an F.B.I. informer at
their first meeting, on July 30, 2010. According to the affidavit, the
informer suggested five ways that Mr. Mohamud could help the cause of Islam, some of which were peaceful, like proselytizing, and some of
which were violent and illegal.

Mr. Mohamud, the affidavit said, immediately picked a violent crime:
becoming “operational,” by which he said he meant putting together a
car bomb. The informer then offered to put Mr. Mohamud in touch with
an explosives expert, setting off the chain of events that led to his
eventual arrest.

Defense lawyers may have an opportunity to challenge the government’s account of that conversation. According to the affidavit, while most of the conversations between the informer and Mr. Mohamud were recorded, that one was not “due to technical problems.”

Still, in subsequent recorded conversations, the affidavit said, Mr.
Mohamud picked the target, said he had wanted to commit such an attack for several years, and repeatedly demurred when told he could walk away if he did not have it “in his heart” to go through with it.

The question of how far the police may go in inducing the subject of
an investigation to commit a crime turns on whether the facts show
that the defendant was already predisposed to carry out a crime should
the occasion arise.

Daniel C. Richman, a Columbia University professor of criminal law and former federal prosecutor, said it was largely up to juries to decide
whether to accept a defense of entrapment, which in practice is often
hard to win. “These are jury questions that by and large go against
the defendant, although every case is different,” Mr. Richman said.

The Justice Department also has rules on how far investigators may go
in facilitating a subject’s criminal activity. The F.B.I.’s domestic
operations guide, which was overhauled in 2008, notes that courts have found it to be “legally objectionable” when government agents lead a political or religious group “into criminal activity that otherwise
probably would not have occurred.”

The guide also has a long section of rules on what undercover agents
and confidential informers can and cannot do, but it is almost
entirely redacted from a publicly released version of the document.

F.B.I. officials have said the bureau requires legal reviews and
higher-level approval of activities involving undercover agents and
confidential informers to avoid putting convictions at risk with
entrapment accusations. But they have made clear that once someone
voices an intent to commit a violent act, undercover agents and
informers are allowed to respond by offering to help the subject of
the investigation obtain weapons.

“It doesn’t matter whether it’s a would-be terrorist who has expressed
his desire to launch an attack, or a would-be drug dealer who has
indicated an interest in moving a kilo of crack cocaine,” said Kenneth
L. Wainstein, a former assistant attorney general for the Justice
Department’s national security division. “So long as that person has
expressed an interest in committing a crime, it’s appropriate for the
government to respond by providing the purported means of carrying out that crime so as to make a criminal case against him.”

William Yardley contributed reporting from Portland, Ore., and Scott
Shane from Washington.

November 29, 2010

Entrapment Is Argued in Defense of Suspect

New York Times

PORTLAND, Ore. — Lawyers for Mohamed Osman Mohamud, the teenager accused of trying to detonate a bomb at a crowded Christmas
tree-lighting ceremony here, suggested on Monday that the government might be “manufacturing crime” and accused the authorities of timing the plot for maximum publicity and effect.

Mr. Mohamud made his first court appearance since his arrest on
Friday, and his lawyers were federal public defenders appointed to the
case on Monday.

At the hearing in Federal District Court, Mr. Mohamud, a Somali-born
19-year-old who is a naturalized American citizen, pleaded not guilty
after being indicted earlier in the day on a single charge of
attempted use of a weapon of mass destruction. A jury trial was set
for February.

Mr. Mohamud, shackled at the ankles, spoke only once. When asked
whether he had agreed to have Stephen R. Sady, a public defender,
serve as his lawyer, he responded, “Yes, Your Honor.”

He smiled briefly with his lawyers as he entered the courtroom, but he
did not appear to exchange words or glances with a small group of
supporters, which included at least one leader at a mosque he has

Mr. Sady made clear in the brief hearing that the defense would
forcefully question the way Mr. Mohamud was arrested. He said that the arrest was “timed for maximum impact and maximum publicity” and that F.B.I. agents had been “basically grooming the individual” to commit a crime.

Ethan Knight, one of the federal prosecutors in the case, dismissed
the idea that the government had sought publicity through the timing
of the plot, saying Mr. Mohamud was the one who chose the time and

In Washington, Attorney General Eric H. Holder Jr. said of the case,
“I am confident that there is no entrapment here, and no entrapment
claim will be found to be successful.”

Federal agents say they followed up on intercepted e-mails and other
information showing that Mr. Mohamud was seeking to contact Islamic
extremists. Undercover investigators then spent months helping him
plan to detonate a bomb. Planted by undercover agents, the bomb was

Mr. Sady questioned why a government affidavit for Mr. Mohamud’s
arrest says that technical problems prevented agents from recording an early meeting they had with him.

“In cases involving potential entrapment, it’s the first meeting that
matters,” Mr. Sady said.

Mr. Sady asked the presiding judge, John V. Acosta, for all recording
devices, storage devices and storage locations to be “preserved
pristinely as they are today.”

Prosecutors suggested that they would not oppose the request but asked Mr. Sady to clarify it in writing. Judge Acosta indicated he would
rule on the matter soon.

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