The Yin Blog

Portland bomb sting sentencing positions

Sentencing for Mohamed Mohamud, who was convicted of attempting to bomb Portland's Pioneer Square during the Christmas Tree lighting ceremony back in 2010, is set for September. The prosecution and defense have filed their sentencing papers, and the government is asking for 40 years. This, according to the government, represents leniency, since the Probation Office has calculated the sentencing range under the Federal Sentencing Guidelines as life imprisonment.

40 years seems . . . quite a lot. The most similar case to Mohamud's (with more or less simultaneous stings and arrests) was that of Antonio Martinez, who received 25 years for attempting to bomb a military recruiting center near Baltimore. It's hard to see why Mohamud would merit an additional 15 years (i.e., 60 percent MORE time).

Former FBI Special Agent Ali Soufan trashes "The Terror Factory"

For fairly obvious reasons, I've got Trevor Aaronson's The Terror Factory: Inside the FBI's Manufactured War on Terrorism on my to-be-read list, notwithstanding this fairly withering review by Ali Soufan, a former FBI Special Agent and one of the primary interrogators of al Qaeda's Abu Zubaydah, among other detainees. The success that Soufan had in eliciting useful information through traditional FBI rapport-building interrogation is recounted in a number of sources, including his own book and Kurt Eichenwald's 500 Days.

Soufan's takeway:

An impartial review of the FBI's efforts to fight terrorism after 9/11 would give it high marks overall. It gets hundreds of leads daily, and it has a duty to check them all out, no matter how dismissible they appear. The Iranian regime's 2011 plot to assassinate the Saudi ambassador to the U.S., which was uncovered thanks to a Drug Enforcement Administration informant, is a reminder of why. Unfortunately Mr. Aaronson fails to appreciate this, and instead uses most of his pages to accuse the FBI of entrapment. Tellingly, he notes toward the end that "I am frequently asked why entrapment has never been an effective defense in the terrorism cases. I've struggled with the answer to this question." The answer, of course, is that the evidence shows that these were real threats to the U.S., and we are fortunate that the FBI intercepted them.

Ouch!

More than 10 years later, the USA PATRIOT Act is still Hollywood's punching bag

Here we are, more than ten years after the initial passage of the USA PATRIOT Act, and Hollywood keeps (inaccurately) flogging it as the source of authority for everything bad about the war on terrorism. I actually like ABC's "Scandal" quite a bit, but it falls into the same predictable trap of having bad government agents justify kidnapping, detaining, and torturing an American citizen under the PATRIOT Act.

Um, no. The PATRIOT Act does have a provision for detaining suspected terrorists without charges, but only aliens, not citizens; and it says nothing about torturing those detainees. Moreover, I don't think this provision has ever actually been used, since Guantanamo detention has been justified under the President's Commander-in-Chief powers.

Now, one of the government baddies does say that the citizen detainee is an "enemy combatant," which is closer to the mark, but that just raises the question of why the writers/producers felt it necessary to invoke the PATRIOT Act?

Who are terrorists?

Hmm . . . it seems like not too much time passes before we get another one of these types of stories -- someone is arrested after trying to blow up some public place, only there was no danger because the bomb was a fake, and the co-conspirators were actually undercover FBI agents. Today's story comes from Cleveland:

Five men described by federal authorities as anarchists who were angry with corporate America and the government have been charged with plotting to bomb an Ohio bridge.

The men were arrested Monday night after unknowingly working with an FBI informant for months. They were charged with conspiracy and trying to bomb property used in interstate commerce.

Are these guys alleged terrorists? Well, the closest I could find was a reference in the New York Times story to the fact that the arrest was made by the Joint Terrorism Task Force.

I've just posted to SSRN a forthcoming article that looks at how race and religion factor into the perceptions of criminal defendants as terrorist -- or not. Here's the abstract:

This article examines real post-9/11 cases of bombings/attempted bombings and mass shootings, and asks why some of the cases have been deemed acts of terrorism, while others with similar fact patterns have not been. The easy, if cynical, answer is that an act of mass violence is terrorism if it is committed by someone who is Muslim (such as Portland’s alleged Pioneer Square bomber Mohamed Mohamud, or Fort Hood shooter Nidal Hasan), but it is not terrorism if it is committed by a non-Muslim (such as a father-son duo who planted a bomb near a bank in Oregon, or Arizona gunman Jared Loughner).

Yet, the easy answer glosses over seemingly plausible explanations for the disparity in perception. This article considers 'micro-level' views of the cases, such as the nature of criminal charges available to the prosecuting jurisdiction (state versus federal), that do explain the disparate perceptions. However, the micro-level view also misses the forest for the trees: notwithstanding the plausible explanations for why the cases are seen differently, there are real costs imposed on society when terrorism becomes branded with Islam: cognitive biases against Muslims become more potent; investigators risk losing the trail of non-Muslim perpetrators when they fixate reflexively on Muslims; and worst of all, some government officials, aware of the biases and concerned about appearing anti-Muslim, may overcompensate by deliberately ignoring specific 'red flags' about Muslim individuals, with tragic results, as the Fort Hood shootings demonstrate.

The article does not pretend that there is a panacea to solve the problem of perceiving terrorism through the lens of race and religion. There are, however, steps to be taken to address and minimize the problem, including de-biasing techniques and redefining 'terrorism,' at least in layperson’s terms to focus on the intended result, rather than the perceived motivation (as the latter tends to result in equating Islamic beliefs with terroristic motivation).

UPDATE: No mention in the Wall Street Journal about terrorism either. . . .

More "terrorists" in Portland?

Someone sent some suspicious white powder-filled envelopes to Congress from Portland.

My op-ed on the Nat'l Defense Authorization Act

The Oregonian has published my guest editorial on the National Defense Authorization Act, which Congress has passed, and which President Obama seems poised to sign into law. My ultimate conclusion:

In the end, the NDAA's detention provisions are largely unnecessary, in that they mostly maintain the status quo; the provisions that make changes interfere with the President's flexibility and "solve" problems that don't exist. Its most problematic aspect may be pushing the boundaries of the battlefield far beyond the Iraq/Pakistan theater to anywhere, including within the United States.

Mukasey on targeted killing vs detention

Former Attorney General (and former Chief U.S. District Court Judge) Michael Mukasey has an op-ed in today's Wall Street Journal that poses an important question: is the Obama Administration's heavy reliance on targeted killing via unmanned aerial vehicles potentially compromising national security by eschewing the possibility of capturing targets and interrogating them for actionable intelligence?

I think it's a good question, and one that doesn't need to presuppose the availability of waterboarding or other forms of torture. People like former FBI Special Agent Ali Soufan have, in fact, gathered coercion-free confessions and intelligence from captured al Qaeda members since 9/11.

Yet, Mukasey notes persuasively that the Obama Administration's reflexive decision to delegitimize the detention facility at Guantanamo Bay has made it harder for it to capture detainees, for GTMO was the most feasible detention location. Thus, we find ourselves in the position where, perhaps, it's easier to kill than to capture, and so we kill blasting away with Predator drones.

Greenwald on Ferdaus

Glenn Greenwald once again mocks the government for "thwart[ing] its own Terror plot" regarding yesterday's Washington D.C. arrest. But the strange thing is that, after fulminating against the war in Iraq, etc., he notes:

If the FBI's allegations are accurate, then it's clear Ferdaus has become hardened in his hatred; he talks about a willingness to kill American civilians because they have become part of the enemy, and claims that he fantasized about such attacks before the FBI informant spoke to him.  

But whatever else is true,  it's simply unrealistic in the extreme to expect to run around for a full decade screaming WE ARE AT WAR!! -- and dropping bombs and attacking with drones and shooting up families in multiple Muslim countries (and occupying, interfering in and killing large numbers before that) -- and not produce many Rezwan Ferdauses.  In fact, the only surprising thing is that these seem to be so few of them actually willing and able to attack back that -- in order to justify this Endless War on civil liberties (and Terror) -- the FBI has to search for ones they can recruit, convert, convince, fund, and direct to carry out plots.

Now, you can argue about whether the war against al Qaeda or the war in Iraq were good policy decisions. But we can't go back and undo one or the other decision. Given where we are today, and assuming the possibility that those wars predictably radicalized people like Ferdaus, it seems to me that the pertinent question is, did Ferdaus pose enough of a threat to warrant government attention?

Note that with his caveat about accepting for the sake of argument the government's allegations, Greenwald seems to give this away. He acknowledges that Ferdaus sounds dangerous, and willing to kill Americans. Forget about his motivation and just concentrate on the actual danger that he did or did not pose. Shouldn't the government investigate someone with such desires and intentions?

To be clear, I'm not suggesting that someone should be locked up just because they're dangerous or they would like to kill Americans. I am suggesting that perhaps the government should investigate such persons and use legal tools, including possibly undercover sting operations, to test the likelihood of actual criminal conduct.

 

Another sting operation nets an alleged terrorist

Using another undercover sting operation, the FBI has arrested a Massachusetts man for attempting to pilot a drone aircraft filled with explosives into the Pentagon and the Capitol building. Although the specific alleged plot was different, the undercover operation sounds a lot like that used to ensnare Mohamed Mohamud:

The FBI undercover agents provided Ferdaus with the money to buy the drones, but law enforcement officials said Ferdaus came up with the idea for the attack. Prosecutors said Ferdaus “was presented with multiple opportunities to back out of his plan, including being told that his attack would likely kill women and children,” but that he “never wavered in his desire to carry out the attacks.”

Entrapment has yet to work as a defense in a post-9/11 terrorism case, although we'll see how Mohamud fares next year. My early, tentative thinking is that Mohamud has a better shot than Ferdaus does for a number of reasons:

1) Mohamud was 19 at the time of his arrest, and even the government's affidavit doesn't really lay out a case that Mohamud had any technical capabilities of his own. Ferdaus, on the other hand, is 26, has a physics background, and apparently had constructed some cell phone detonators that were operational.

2) The government gave Mohamud money to buy bomb components, and then built the bomb for him. All Ferdaus allegedly needed was the money to buy the drones. Perhaps if the government had not interceded, he would have been able to get the money from other sources.

3) Mohamud is being prosecuted in the District of Oregon, much of which lies in Multnomah County. It's hard to think of too many better venues for the defense. Maybe San Francisco or Berkeley . . . . Ferdaus is likely to be prosecuted in Washington, D.C., which may be a "liberal" district, but it's also the site of the Pentagon, which was also allegedly one of Ferdaus's targets.

Stay tuned.

Is my colleague Jack Bogdanski going to be dragged off to Guantanamo?

The federal government isn't too happy with his blogging about the planned immigration detention facility on the Portland waterfront.

Of course, we haven't sent any U.S. citizens to Guantanamo; those who were declared "enemy combatants" (Jose Padilla and Yaser Hamdi) were sent to Navy brigs on the East Coast. Then again, that was the policy of the Bush Administration. . . .