Concurrent with the federal public defender prominently mentioning “potential entrapment” as well as “grooming by the FBI” at Mohamed Mohamud’s first court appearance Monday in Portland, OR, New York Times reporters Eric Schmitt and Charlie Savage examine the overall state of entrapment in federal anti-terrorist cases.

Using the Portland arrest as a framework for their review of similar cases, the Times reporters dutifully present the law enforcement angle and quote Attorney General Eric Holder, who seems well-read into Mohamud’s case, extensively:

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 continue.”

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.”

The article carefully points out that this ‘forward-leaning strategy’ requires a first conversation, documented and memorialized, showing the intention and inclination of the FBI’s target:

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.

The problem for the prosecution is, of course, that this conversation is unavailable in anything but affidavit form. The recording was either not preserved or, as the prosecution claims, was never created due to equipment malfunction. Mohamud’s defense attorney’s asked that the equipment used in all recordings be preserved; the federal prosecutor asked that the defense be more specific in its request.

As Schmitt and Savage clarify:

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.

This would make that first conversation, and a recording thereof, particularly critical, in that subsequent actions hinge on it. Without knowing — or being able to hear for themselves — that a defendant initiated discussion of violent acts while dismissing other less widespread damage, it may be difficult or even impossible for a reasonable jury to conclude that the defendant was not entrapped.

There are, of course, rules:

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.


Secret rules we cannot see.

One wonders how much of this rules section might be un-redacted for a jury tasked with considering exactly these issues at trial.

And here’s the crux of the issue. The government interprets its own rules and has apparently judicial backing for their interpretation:

“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.”

Law enforcement seems to believe that they can place any resources at the disposal of a desirous would-be terrorist, regardless of the likelihood that individual would be able to access such resources without their intervention, in order to further the conspiracy they’ve engaged in — even if it’s a radicalizing and grooming of a teen whose parents fled Mogadishu to provide him with a life, and education, and job prospects (foiled by our own federal government). Even if it’s giving him money for a hideout apartment. Even if it entails providing him with a list of Radio Shack “bomb components.” Even if it means renting the ominous white van and loading it with fake bomb materials and a gallon of smelly diesel fuel. Even if it’s handing the suspect a cell phone, and the phone number to call to detonate the bomb. Even if it’s providing a passport for escape across the border by train.

Even if it’s saving a parking space on a crowded downtown streetcorner at Christmastime.