PrintDecember 6, 2010
Entrapment and the Portland Christmas Tree Bomber
The recent arrest of Mohamed Osman Mohamud on November 26 demonstrates what a tough job the FBI has in keeping America's homeland safe. Mohamud was arrested in Oregon for attempting to detonate a bomb at the annual Christmas tree lighting ceremony in Pioneer Courthouse Square among a crowd of thousands. His attorney is claiming an entrapment defense, which means that the FBI's job is not just about finding radicalized American terrorists, but also being able to cross all the Ts and dot all the Is to ensure a conviction.
The entrapment argument is being used possibly to influence the jury pool. This might not be too far-fetched considering past actions by Oregonians. In 2004, Portland's City Council, with support from the mayor, decided to remove the city police from participating on the Joint Terrorism Task Force (JTTF). The reason given was that the mayor did not want to single out Muslims for investigations. Knowing this, the FBI took steps to make sure the prosecution's case is as strong as possible. Although FBI Agent Steven Warfield was not directly involved with this arrest, he commented that in cases such as this, "we know entrapment will be a likely defense so we make sure we are extra careful. We prepare for this; we plan for this; we get levels of approval; and we show that the subject had a pre-disposition and intent."
To understand why a jury should not consider this defense strategy, American Thinker interviewed current and former FBI agents and a former federal prosecutor. Retired FBI Agent Bob Hamer, now a writer, who worked on the Los Angeles JTTF, thought the entrapment defense was ridiculous, considering that "Mohamud would be admitting de facto guilt, and never once did this strategy work, even though it was raised in three-quarters of my cases. Undercover agents know what they have to do."
According to all those interviewed, entrapment occurs if the FBI had no reasonable basis for targeting someone, and after they targeted that person they coerced, bribed, and led the subject to commit a crime. In the Oregon case, it has been reported that Mohamud's father went to the FBI and told them his son wanted to commit jihad. Richard Marquise, a former FBI counter-terrorism agent, believes that the Muslim community must help in preventing radicalization, and this case is an example of the silent Muslim majority taking action against extremism. He further stated that having the father come forward shows that the government did not influence Mohamud to commit the crime.
In general, the way FBI agents avoid entrapment is to make sure there is reasonable suspicion that the subject is about to be or is engaging in criminal activity. Mohamud was definitely predisposed, since he had reached out to overseas terrorists in 2009 for training via e-mail before the FBI was involved, and he wrote articles in jihadist magazines supporting violence.
Once a criminal case is established, the government allows the terrorist the opportunity to commit the act. Undercover agents meet the subject and record conversations. The U.S. Attorney's Office is consulted regarding the details of how the case should proceed. Craig Dotlo, a retired FBI agent, emphasized that undercover agents are coached not to lead or coerce the defendant, and agents are very careful on how questions are asked or what is said to avoid an entrapment claim being successful.
Undercover FBI Agent Ryan Dwyer seems to have done everything correctly, according to the affidavit, when he posed as a terrorist and asked Mohamud what he wanted to do for the cause. The terrorist responded that he wanted to put an explosive together for a huge massacre but needed help. In a number of e-mails, Mohamud was asked if he was serious.
To make sure the subject is serious and to prove that there is no entrapment, the agents always give the terrorist chances to back away. Even after being told that many children would be present and that he had a choice, Mohamud showed his desire by finding the place to target, buying bomb components, and finding a place to park the van that would be used for the bomb.
Andrew McCarthy, the former federal prosecutor of the first World Trade Center bombing and currently a writer for NRO, insisted that "[e]ntrapment is a defense that may work when the government is getting an otherwise law-abiding person to participate in a fraud. But people do not commit murder, much less mass-murder, just because some government agent suggests it. The prosecutor would look the jury in the eye and ask, 'What would someone have to do in order to lure you into the commission of mass murder?'" McCarthy's point is well-taken, especially since the affidavit quotes Mohamud as stating, "I want whoever is attending that event [the Christmas tree lighting] to leave, to leave either dead or injured."
Once the trial begins, the prosecution can demonstrate that entrapment did not take place by showing the defendant's intent to commit the crime. Mohamud exhibited this by giving the undercover agent a flash drive with maps and operational instructions. He further demonstrated his intent by exploding a live bomb for practice and dialing a cell phone number that would have detonated a vehicle bomb at the Portland Christmas tree lighting ceremony. After exploding the practice bomb, he commented, "Do you remember when 9-11 happened, when those people were jumping from skyscrapers[?] ... I thought that was awesome ... This is their holiday ... that would be the perfect time, you know."
The entrapment defense is intended to make the FBI the bad guys, and according to Dotlo, it is used only "when the facts and law are not compatible with a criminal attorney's defense strategy. Attorneys will then typically attempt to make a case for government misconduct, such as an entrapment defense." We can only hope that jurors will realize the ridiculousness of such a defense and recognize the great job the FBI is doing in going undercover to thwart possible attacks.
