Trial by Entrapment

A plot to bomb the D.C. subway system. An attack on American troops at Fort Dix, New Jersey. An attempt to kill Americans holding a Christmas tree-lighting ceremony in Portland, Oregon.

All of these potential terrorist attacks sound frightening, but not a single one was ever in danger of actually happening. They were all part of a series of elaborate sting operations orchestrated by the government in its attempt to be proactive about preventing domestic terrorism. It didn't want to wait for body counts on the evening news.

"One of the things that the Department of Justice decided to do in the wake of 9/11 was to focus on prevention and preemption," explains Karen Greenberg of the New York University Center on Law and Security. "If you focus on prevention or preemption, what you're talking about is informant or undercover cases."

The most recent sting, involving an FBI-facilitated plot by a 19-year-old Somali American named Mohamed Osman Mohamud to bomb a Portland Christmas tree-lighting ceremony, has reignited concerns in the Muslim community about whether these FBI operations, which involve scary-sounding plots that make for sensational headlines, amount to entrapment and strain the relationship between law enforcement and the Muslim American community. Muslim community leaders say they are torn between their desire to engage with law enforcement and offer themselves as the first line of defense against terrorism and their concern that the FBI's sting operations sometimes amount to fabricating terrorism threats that wouldn't otherwise exist.

While the government has had a stunning success rate in trying terrorism-related cases in civilian courts, only 1 percent of which end in acquittal, the propriety of the FBI's sting methods will be tested by Mohamud's lawyers, who have accused the government of entrapment. The Mohamud case, like almost one-third of the domestic terrorism cases involving Islamic extremism, relied in part on the vigilance of a Muslim informant -- reportedly Mohamud's own father, who told the authorities he was concerned about his son being radicalized. Federal agents later posed as terrorist recruiters to Mohamud who was ultimately arrested for allegedly planning a bombing alongside his "accomplices." Shortly after the indictment was announced, someone set fire to the Oregon mosque Mohamud was known to attend.

"When the FBI engages in tactics that involve fabricating fake terrorist attacks, it undermines that faith in the community," says Hussam Ayloush, director of the Council on American-Islamic Relations' California branch, who worries that the stings give the false impression of an American Muslim community eager to harbor terrorists. "We have a fake, FBI-manufactured terrorist incident resulting in a real terrorist attack on the Portland mosque."

Other community leaders are reluctant to use the word "entrapment" to describe the FBI's operations but insist that the cases may sometimes blur a line between radicalization and actual criminal behavior. What is needed, they say, is for the government to partner with the Muslim community in order to intervene earlier in the radicalization process. "We want to see a division of labor -- that law enforcement focuses on criminal activity, and when it comes to ideas, thoughts, and behaviors, you allow experts in the community to deal with that issue," says Haris Tarin, director of the Washington, D.C., office of the Muslim Public Affairs Council. "If that exists, you won't have this conversation about entrapment."

This already happens on an ad-hoc basis, according to Mohamed Elibiary of the Freedom and Justice Foundation, who has worked with government officials in the past to intervene in cases involving young Muslims in danger of being radicalized. "The Joint Terrorism Task Force has community-based partners, who are vetted and whom they are comfortable bringing into the loop if the subject is 'fixable,'" Elibiary says. But he agrees that there needs to be a formal process instituted on a national level. "As long the FBI does these cases alone in the community, this is the kind of reaction you're going to get."

South Texas College of Law professor Dru Stevenson says the stings are attractive for a number of reasons, not the least of which is that they sow paranoia among terrorist recruiting networks. He adds that an entrapment defense in these cases is difficult to mount because of the standards in the federal court system.

"The defendant has to show that he was not predisposed; it is not at all enough to show but for the inducement he would not have committed the crime," Stevenson says. "Any evidence that you were already interested in doing this type of thing is probably going to be fatal to your entrapment defense." Federal agents know that -- which is why at some point during the investigation, they gauge the target's commitment. According to the arrest warrant in the Mohamud case, agents reminded Mohamud of the potential casualties and asked if he were "serious." Mohamud also allegedly tried to contact alleged terrorist operatives abroad in order to seek training, prior to federal agents becoming involved.

Alyoush concedes that "from a technical legal perspective," many of these cases might not amount to entrapment. "However," he says, "there is something immoral, or at least questionable, about the FBI luring confused, socially alienated, and sometimes unstable individuals into becoming terrorists."

These cases also trouble some civil libertarians, who under other circumstances would be more forcefully questioning the fairness of the stings. "Obviously there are some imperfections in the federal court system, but this is a triage situation," says one prominent civil-libertarian attorney. "The emergency is dealing with issues like Guantánamo, military commissions, and indefinite detention without trial."

Those concerned that the stings cross a line are worried it's already too late, since no one in any of these cases has ever successfully argued entrapment. "Have we already accepted the notion that if it's terrorism, forget it on 'entrapment,' because if you would do this under any circumstances, then you're going to suffer the penalty?" Greenberg says. "In terms of the record, that's the case."

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