Portland Terror Plot - Entrapment? FBI fabricated plots? Who Cares?

The FBI successfully thwarts its own Terrorist plot, by Glenn Greenwald, Salon.com, Sunday, Nov 28, 2010 06:29 ET

The Center for Constitutional Rights

American Civil Liberties Union

A Defense That Could Be Obsolete

By RICHARD BERNSTEIN, New York Times, December 1, 2010

NEW YORK — Was it entrapment? The question naturally arises in the case of Mohamed Osman Mohamud, arrested last week after demonstrating, the authorities allege, an unbridled enthusiasm for blowing up thousands of people in Portland, Oregon.

Mr. Mohamud’s court-appointed lawyers have already said they plan to use an entrapment defense when their client goes on trial next year, accusing the government of “basically grooming the individual” to commit a crime. And it does seem to be the case that the 19-year-old Mr. Mohamud’s confederates in the plot to detonate a large explosive at a Christmas tree-lighting ceremony were entirely and exclusively F.B.I. agents posing as terrorists.

In fact, the question may be largely academic, given the U.S. mood. Although the entrapment defense has been used in several terrorism cases since the attacks of Sept. 11, 2001, no juries have acquitted any defendants on the grounds that they were induced by law enforcement to undertake their criminal activities.

Still, organizations like the American Civil Liberties Union and the National Lawyers Guild have raised questions about what some people call the government’s use of “pre-emptive prosecution” as a weapon against terrorism.

A forum at the New York University School of Law this year heard testimony from friends and relatives of the Newburgh Four, a group of black American Muslim converts who had been arrested for plotting to blow up two synagogues in the Bronx.

“They pick the most vulnerable county in the state,” Alicia McWilliams, the aunt of one of the defendants, said, referring to U.S. law enforcement, “where there’s no jobs, where there’s no training.”

“Newburgh,” she said, “is where the unskilled live. You can’t tell me these individuals masterminded anything.”

Karen Greenberg, executive director of the Center on Law and Security at the N.Y.U. School of Law, put it this way: “The government hired a Pakistani who basically found an African-American, and through him, three other African-Americans, have-nots, at least one of them off the grid almost, and the government took what was anti-Semitism that manifested itself in this case — and there was certainly a lot of very nasty anti-Semitism — and turned it into jihad. That to me is a certain type of entrapment.”

Nonetheless, all four men were convicted in October, one reason no doubt being the evidence showing the defendants not only hating Jews but willing to kill them, and, with the F.B.I.’s undercover operative present, placing bombs at synagogues in the Bronx.

If the entrapment defense did not work for the Newburgh Four, it might work even less well for Mr. Mohamud, who, the indictment says, was eager to go ahead with the bomb plot even when his supposed informants told him lots of women and children would be killed.

So it is hard to feel any sympathy for Mr. Mohamud. And yet the notion being repeated by local officials and the media to the effect that a terrorist attack was “thwarted” in Portland would appear, as Ms. Greenberg put it, to be “misleading.”

That is because, as far as we know, there was no actual terrorist plot in Portland — only the fictitious one Mr. Mohamud thought he was engaged in.

“As a general matter, when a government agent is playing an active role — as opposed to just being an informant — that always raises the question of entrapment,” Christopher Dunn, associate legal director of the New York office of the American Civil Liberties Union, said in a telephone interview.

The law itself is fairly clear on this subject, though also subject to interpretation, as Mr. Dunn explained in an article in the New York Law Journal last year. Since 1932, when the Supreme Court first allowed an entrapment defense — involving a bootleg liquor charge against one C.V. Sorrells in Prohibition-era North Carolina — it has been well established that law enforcement agents can “afford opportunities and or facilities” to people of criminal intent.

But the question, as the Supreme Court put it, was whether “the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.”

What of the Mohamud case? From what is known so far — and, of course, the defense has had no chance to present a case either to a court or to the media — there would seem little doubt that he already had the disposition to commit the alleged offense, and moreover the offense would have been gruesome and gigantic.

But did the government agents, in inducing him to commit a crime, step over some border, becoming instigators of actions that Mr. Mohamud would not otherwise have taken? That is one of the questions to be decided at his trial.

Meanwhile there may be larger issues. “One question is whether this is the best place to put our resources,” Ms. Greenberg said of the F.B.I.’s continuing program to use undercover agents to flush out would-be terrorists. “It may be, but you really have to think about it.” She pointed out that in the past year and a half, there have been five genuine thwarted terrorism attempts, including the effort to explode a car bomb in Times Square. In none of the five did law enforcement have advance information about the actual attack or have an undercover agent on the scene.

Which leads to Ms. Greenberg’s second question: “It’s whether these cases lead to information about a larger network. In the synagogue bombing case, for example, these were guys who knew nobody and were connected to nobody.

“This is the standard we need to apply to terrorism-related entrapment cases,” she continued. “Were the defendants part of a larger network prior to the sting operation, or did the F.B.I. connect the individual, through them, to a wider terrorist network or group?”