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).

The Mohamud verdict -- some initial thoughts

Well, the jury rendered its verdict in the Portland bomb sting case today, convicting defendant  Mohamed Mohamud of attempting to use a weapon of mass destruction. The jury deliberated for about seven hours, or about a full day. It's been a hectic day for me since the verdict came out, with a lot of media interviews, so I'm just going to sketch some early thoughts that I hope to flesh out over the next few days.

1) Does 7 hours count as a short deliberation? Maybe, but then again, the OJ Simpson double homicide trial spanned nine months and yet the jury reached its decision in only four hours. Certainly the jury could've spent more time. But it also could've returned a guilty verdict in, say, 30 minutes if it was hellbent on rejecting the entrapment defense.

2) What's the implication for pending domestic terrorism cases involving undercover stings? By my count, there are at least three pending cases like this one -- Sami Osmakac in Tampa, Adel Daoud in Chicago, and Mohammad Nafis in New York -- and the defense lawyers there have got to be thinking harder about trying to get plea deals now.

3) Could it have made a difference if Mohamud had testified? I'm sure the defense team thought hard about this and they no doubt had very good reasons for resting without putting Mohamud on the stand. But you have to wonder, if he had been able to make a good impression, could he have sold the entrapment defense to the jury?

4) What's the likely sentence? I'll go through the Sentencing Guidelines later, but in a similar case in Baltimore, Antonio Martinez got 25 years.

5) Was I surprised? Not really. If he had been acquitted, I would've been surprised, but not shocked (even though it would've been the first time that an entrapment defense would've worked in a post-9/11 terrorism case). I think the key government evidence was that before the undercover agents got involved, Mohamud tried to get in touch with someone the government described as a suspected al Qaeda recruiter.

Anyway, I'll expand these thoughts in subsequent posts.

Jury selection started in our bomb sting plot

Jury selection started today in the Portland bomb sting plot. KGW (the local NBC affiliate) caught up with one juror who was dismissed for cause because he didn't think he could keep an open mind, not after a good friend of his was one of the four men killed in the Benghazi (Libya) attack last year.

KGW also ran a preview story last night, including a short soundbite from me about how this might be the best opportunity for the entrapment defense to work in a post-9/11 terrorism case.

Other links to news stories that I participated in: Oregon Public Broadcasting; Wall Street Journal; Oregonian.

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. . . .

Former Homeland Secretary Secretary on counterterrorism stings

Michael Chertoff, former federal appellate judge and former Homeland Security Secretary, has an op-ed in today's WSJ defending the use of undercover sting operations:

The use of undercover operations and informant stings will become more important with the growth of homegrown terrorism. Susceptible individuals who have little or no contact with hardened al Qaeda operatives nevertheless now have easy access to al Qaeda ideology via the Internet to fuel their radicalization. We cannot only prepare for al Qaeda terrorist operatives from foreign nations. Instead, we must use intelligence-gathering and analysis to identify and prevent growing threats from within.

He mentions Antonio Martinez, but not Mohamed Mohamud.

More on the FBI's pre-sting contact with Mohamed Mohamud

Yesterday's Oregonian had an interesting story about the FBI's pre-sting contact with Portland bomb sting defendant Mohamed Mohamud. Apparently, the contact was all via email, so the record is clear(?) as to the exact wording of the communications, though of course lawyers can always find things to argue about:

Mohamud's defense team contends in court papers that the emails show the FBI was trying to induce the Somali-American teen into committing a crime, a key element of their entrapment defense. But prosecutors argue that Mohamud didn't ignore or question what Smith wrote -- he offered advice on staying under the radar. 

"(I) would advise you move to a more populated Muslim area," Mohamud wrote. "For security be more careful, its a good thing you talked to me because you can get tricked into saying something that will get you into trouble for nothing ... But don't put yourself out there. There are lots of spies." 

Smith didn't listen. 

"It looks like there has been some action against the (W)est in the last few weeks," he wrote on Dec. 1, 2009. "(I) cant tell you how easy it should be to bring any community here in the (W)est to its knees." 

Mohamud responded, "(B)rother, i don't think you should talk about such issues, especially online."

 

Interesting perspective on recent terrorism sting cases

Here's an interesting perspective on the various terrorism sting cases that have been in the news lately. After identifying the recent suspects, J.M. Berger writes:

None of this means that these guys aren't dangerous, and none of this is to argue that they shouldn't have been arrested. But they are not lone wolves. They are essentially al Qaeda volunteers -- people who step forward and offer their services to a terrorist organization that can provide them with resources and support.

Real lone wolves do exist, and they do present a threat. Only three terrorists have succeeded in killing Americans on U.S. soil since the 9/11 attacks, and all three were arguably lone wolves, albeit with complications....

 

Some interesting numbers/stats about FBI counterterrorism operations

Willamette Weekly has an informative, if snarky, list of numbers and stats about FBI counterterrorism operations, including last year's Portland bomb sting case. Perhaps the most cutting ones:

Approximate length, in minutes, of that meeting, at which the Pioneer Courthouse Square plot was first discussed: 30

Minutes of that meeting successfully recorded, on account of dead batteries in the FBI’s bugging device: 0

Hours of other video and audio recordings of Mohamud the government did manage to capture during its investigation: “hundreds”

(and)

Rough share of sting cases that went to trial in which government agents failed to record crucial meetings: “most”

I've heard about the last quoted stat. If true, it certainly doesn't make the government look very good. I wonder if that is something that the defense team will be able to present to the jury, or whether it, even if relevant, would be kept out under Fed. R. Evid. 403 as inviting so much collateral litigation (as the government would no doubt seek to justify what happened in each individual case) as to waste time and/or confuse the jury.

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.