Obviously, the Pioneer Square bombing case is a big deal here in Portland. I started getting media interview requests on Saturday, continuing through today, and I've now had a chance to put here some thoughts about the case.
First, pretty much everything that is publicly known about the case comes from the FBI affidavit that was attached to the arrest warrant application. The affidavit lays out a detailed case against Mohamed Mohamud and appears to rebut the argument that he was entrapped into committing the crime, because it does not appear the government implanted the idea of bombing downtown Portland. However, we haven't heard from Mohamud yet. Perhaps we won't (i.e., if he pleads guilty). But perhaps we'll hear things that either contradict the government's version of the events, or that provide enough context that changes the impact of the facts.
For example, paragraph 6 of the affidavit contains what is probably the key factual allegation by the government:
In the course of this meeting, UCE1 asked MOHAMUD what he wanted to do for "the cause." UCE1 told MOHAMUD that there were a number of ways that he could help, ranging from simply praying five times a day to becoming a martyr. MOHAMUD said that he wanted to become "operational." Asked to elaborate, MOHAMUD stated that he thought of putting an explosion together but that he needed help doing so.
This sounds incriminating, because undercover agent isn't implanting the idea of engaging in a bombing attack. As the Supreme Court stated in Jacobson v. U.S. (1992):
Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.
However, what if the conversation included the same words, but also involved facial expressions or gestures that provided non-verbal thoughts; or included additional words that altered the meaning of the ones stated in the affidavit? For example, what if UCE1 rolled his eyes at the idea of praying five times a day, and pointed emphatically at Mohamud when suggesting becoming "operational"? Or what if UCE1 mentioned praying but then derided the idea as being "wussy"? That might weaken the appearance that Mohamud was not induced to engage in criminal activity.
Unfortunately, as paragraph 37 of the affidavit notes, that initial conversation was not recorded due to some technical problem. (Of course, a recording wouldn't capture non-verbal language.)
All this is to say that the affidavit makes Mohamud look pretty culpable, but he may have a lot to say on the matter.
Second, why did the government wait to arrest him? I talked about this in an interview that KGW conducted with me on Sunday, the gist of it being that we wouldn't want the government to arrest him at the earliest stage, just because he was sending some emails suggesting he might want to act violently. That sounds much too much like a thought-crime. But why not arrest him a little bit later, like after he had supposedly bought the suggested bomb parts and returned to the undercover agents?
It's possible that such conduct would be enough to satisfy 18 USC 2332a, the statute under which he has been indicted. 18 USC 2332a states in relevant part:
A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction against any person or property within the United States . . . . shall be imprisoned for any term of years or life, and if death results, shall be punishable by death or imprisoned for any terms of years or life.
Would simply gathering bomb components with a stated desire to blow people up, but without an actual target plan, be "us[ing], threaten[ing], or attempt[ing] or conspir[ing] to use a weapon of mass destruction"? Perhaps. In U.S. v. Polk, 118 F.3d 286 (5th Cir. 1997), the court upheld a conviction under section 2332a where the defendant had taken "substantial steps" toward blowing up an IRS building, based on the fact that the defendant had taken pictures of potential targets and given an undercover agent a list of things he needed to build a bomb. In U.S. v. Parr, 545 F.3d 491 (7th Cir. 2008), the court upheld a conviction under 2332a where the defendant was still in prison (though due to be released soon), on the facts that he had talked in great detail to a cellmate about blowing up a federal building in Milwaukee; the defendant did have some background in bombmaking chemistry.
Still, that purchase of the bomb components might be enough to sustain a conviction does not mean that it necessarily would. Proof beyond a reasonable doubt is a high standard, and the government may have wanted to gather as much evidence as it could to give the prosecution the best chance to get a conviction. Having him press the button on the cell phone to detonate the bomb, as the affidavit alleges, would be pretty strong evidence.
Finally, there's a question of whether this investigation/sting operation was a wise use of government resources. If the FBI had not gotten involved, it seems pretty unlikely that Mohamud would have been able to assemble a working bomb himself. Assuming that's right, it means that downtown Portland probably wasn't really ever in any danger from him.
Suppose the government had simply ignored him instead of carrying out the sting operation. It's possible that he would have done nothing at all. There are suggestions that his father tipped off the government with concerns about his extremism. Maybe family and/or friends could have ameliorated his apparent violent intent. Maybe he was just an isolated 19-year-old who was shooting off his mouth.
On the other hand, even if he had no capacity for assembling a bomb, what if he got a gun and decided to open fire in downtown Portland at the Christmas tree lighting ceremony? The death toll wouldn't be near what a bomb would have caused, but it would still be horrible. And if it came out that the government had been alerted about him but took no steps, well, I think heads would roll. The FBI would be absolutely crucified for failing to act.
In other words, we don't know that Mohamud, if left alone, would have done anything violent; but we don't know that he wouldn't have, either. Given that the government had come across some information about him that was potentially of concern, some investigation seems prudent and necessary.
So the question is, was a sting operation the wisest course? As an alternative, what if the government interviewed him directly and then decided to keep tabs on him? One question is, what does one have in mind, and more importantly, how long is the government supposed to keep watching him? The amount of manpower and resources it would take to keep a serious surveillance on him is pretty high. And if we don't keep a serious surveillance, and he does end up shooting a bunch of people in downtown Portland, we're back to crucification of government officials.
The sting operation has one virtue: if Mohamud had, at the first meeting, said something like, "There's no way I want to blow people up," then there presumably would be no reason (or at least, much less reason) to continue with the investigation.
To be clear, I'm not trying to say that because he didn't do so, it must show that he's culpable and wasn't entrapped. Absence of evidence is not always evidence of absence. I'm just saying that the sting operation offered a potentially quick resolution. It didn't happen in this case, but it could have.
In short, I'm not sure the government had any options that were better and realistic than to proceed more or less as it did. We don't have infinite resources, and government officials can't realistically take the chance of hoping that a potentially violent person is just blowing off steam.
Of course, as I noted earlier, all we've seen is the government's affidavit. The criminal justice system gives Mohamud a chance to tell his side of the story, and to make the government meet its burden of proving guilt beyond a reasonable doubt.