Thursday, a young man raised in Beaverton goes on trial for attempting to set off a bomb at the Christmas tree lighting ceremony in Pioneer Courthouse Square.
Mohamed Mohamud is accused of trying to detonate what he thought was a weapon of mass destruction just over two years ago.
The trial will be another test of government methods to root out potential terrorist threats. Some recently-produced information suggests the complexity of post 9/11 investigations.
Federal Judge Garr King told defense attorneys he had some news for them Wednesday. Prosecutors had informed him they’d discovered an email the defense should probably see. And the judge was not happy this email was just coming to light.
Tung Yin is a professor at Lewis and Clark Law School who’s been following the case.
He explained, “The government has a Constitutional duty to turn over, even if it’s not asked for specifically by the defense, any evidence deemed exculpatory,” Yin says. “That is, tending to help the defendant’s case, rather than the government’s case.”
The email was written by an FBI agent who’s on the witness list for the trial. The email is dated a few months after the government started watching email, calls and texts from defendant Mohamed Mohamud. At the time he was eighteen, and attending classes at Oregon State. Prosecutors say he’d been in touch with some people overseas the U.S. government was keeping an eye on.
The agent’s email, as Judge King read it aloud, said, quote, “Given [Mohamud’s] fear of the police finding him with something illegal, and his frequent marijuana use, he might be an ideal candidate” to approach. The email poses questions about the origins of the case.
Law professor Tung Yin points out, normally this material is exchanged early on.
“The problem here seems to be we’re on the eve of trial. So a document that may or may not have significance is produced right before you’re ready for jury selection. That puts the side that’s just getting the document now in a position to decide whether to ask for a continuance. Judges tend not to like that,” Yin said.
Indeed, Judge King indicated he was not happy with this turn of events, and felt the email should had been produced much sooner. But he said he’s reluctant to further delay the case. He said jury selection will proceed Thursday.
Lead defense attorney Steve Sady said the email is directly relevant to his client’s vulnerability to pressure from law enforcement. In the year after the email was sent, the FBI sent undercover employees to contact Mohamud. They met with him a total of eight times. The subsequent sting operation culminated in Mohamud’s arrest, for an alleged plot to set off a car bomb at Portland’s holiday tree-lighting.
Mohamud’s predisposition to commit a terrorist act is a key point of dispute in the case.
The day after Mohamud was arrested, Art Balizan stood amid a crowd of reporters to explain what had happened. At the time, Balizan was the FBI’s top man in Portland. He said as FBI employees met with Mohamud, it was the defendant, not the agents, who suggested putting an explosion together.
Balizan said, “We have someone here, who, time and time again, as the complaint lays out, express this desire, took independent steps to accomplish the ends.”
Over the next six months, the dummy plot took shape. When police took Mohamud into custody, they say he had just dialed the cell phone he believed would set off a nearby white van packed with explosives. Balizan added, the FBI and local authorities never allowed Mohamud to possess actual explosives.
But Balizan said the threat was real, and that Mohamud made the key moves to forward the plan: selecting the location to park the vehicle, the methodology, the site, the date.”
But Mohamud’s attorneys expect to argue that their client was entrapped by the government operatives. , with surveillance that began when he was still a minor.
The case is one of seven since the Sept. 11, 2001 terrorist attacks on the U.S. to argue that the government drew in people who otherwise would not have committed acts of terrorism. But in all six other cases, the entrapment defense was unsuccessful. Defendants ended up in prison.
Officials at the top of the Bush and Obama administrations have talked about sting operations as a new way to find people who might pose a threat.
Attorney General Eric Holder and FBI Director Robert Mueller have both defended the practice of identifying and seeking out people who might be predisposed to terrorism.
But the world of post 9/11 stings has also blurred the lines between criminal cases and national security investigations. The Mohamud case is one of several influenced by 2008 policy changes that outlined new investigative procedures used in stings like this one.
Emily Berman is a fellow at the Brennan Center for Justice at New York University School of Law. She says the stings illustrate how investigative powers have expanded.
Berman says, “It’s not just the rules of what the FBI or law enforcement can do. It’s also the criminal laws themselves broadened since 9/11.”
For example, she says, pre 9/11 prosecutors did not go after people for merely providing themselves as personnel for a terrorist organization. Now, they do.
“Just being willing to further the aims of these terrorist organizations,” Berman explains, “itself is a crime.”
Jurors will be asked to consider whether Mohamud was pre-disposed to commit a crime before he was contacted by the government, and whether he was induced to do so. Defense lawyers are likely to bring up his age, and the context of his life at Beaverton High. The nature of the government’s persuasion will come into play.
Rocco Cipparone is an attorney who defended a New Jersey man convicted in a sting operation of plotting to kill soldiers at Fort Dix. He says there’s risk in what the FBI’s doing, possibly snaring people who are all talk, and no action.
“I think it’s a work in progress by the FBI,” Cipparone says. “I think they’re still trying to find balance, and I understand this from a law enforcement perspective, in these pre-emptive prosecutions. I think he FBI’s actually been getting better, over the years, learning from each case as to how to draw that line so that you can sustain that conviction in the courtroom.”
He says the risk is always there that authorities will imprison someone who might otherwise have not taken part in terrorism.
Beyond the legal questions the case raises, it’s also a painful subject for the Somali community, asked again and again about what happened.
Musee Olol is chair of the Somali American Council of Oregon. He’s known the Mohamuds for years, since they came over as refugees. He says the arrest of their son threw the local Somali community into “shock and disarray.”
He adds, most local Somali-Americans left behind very traumatic wartime experiences to come to the U.S.
“I’ve seen a lot of community members who work out in the public, asked repeatedly in a not-very-nice way, ‘Are you from that part of the country in Somalia?’
For many Somalis, Olol says, the United States has been a refuge from violence. “A lot of them appreciate the peace America offers, and the welcome.”
It hasn’t been easy, he says, to rebuild that sense of peace since Mohamed Mohamud was arrested. He says the community hopes for a resolution to the case, so people can move on.
April Baer is covering the Mohamud trial for OPB. You can reach her at firstname.lastname@example.org.Find more Mohamud trial coverage here.