Attorneys are debating what evidence will be used in the trial of a young man accused of plotting to bomb a crowded downtown event last November. For example, federal defenders want to see an FBI recording device. That recorder failed to fully capture a key first meeting between Mohamed Mohamud and two FBI operatives. Opinions differ on whether that point of evidence will be a turning point in the case.
Of the hundreds of people prosecutors have charged for terrorism since September 11 2001, about six other cases are similar to Mohamud’s. In those six cases, the FBI went after suspects with informants who presented themselves ready to help craft a plot. And in those cases, defendants attempted to claim these informants entrapped them. In three of the six cases, no audio or video record exists to show who first suggested a specific violent plan.
“They had no recording, because they had instructed the informant to go out in the community and identify targets,” explained Henry Klingeman.
Klingeman represented Hemant Lakhani, who was convicted in 2005 of illegal arms trading. In that case, federal investigators sent an informant to talk to Lakhani about the deal. And, they worked with Russian agents who supplied the missile at the heart of the sting. As in the Mohamud case, prosecutors were unable to produce a recording to show whether it was Lakhani— or the informant— who initiated the transaction, after two years of discussion. Klingeman says the question of who spoke first matters in counter-terrorism cases.
“It’s a significant fact because if the idea originates with the target, of course, that makes the law enforcement mission entirely legitimate. But if it originates with the informant, it raises the specter of entrapment,” Klingeman said.
The entrapment defense has not been a particularly successful one for people accused of terrorism — with or without recordings of who originated an illegal plan. The entrapment defense hasn’t worked so far in any of the cases of this type.
Late last month, a federal judge noted her reservations about the way investigators handled one case. At the hearing, she said, only the government could have made a ‘terrorist’ out of a defendant, “whose buffoonery is positively Shakespearean in its scope.” But she still sentenced that defendant, James Cromitie, to 25 years in prison.
Informants, or “operatives”, as the FBI sometimes calls them, play a key role in these terrorism cases. They often make the initial contact with suspects. Informants can be criminals trying to improve their situation, or people who’ve agreed to work for the FBI for other reasons. They’re not government employees, per se, although they’re sometimes paid.
The reason the FBI conducts such long and complex investigations has to do with the way domestic threats have evolved.
“It really is a big change since 9/11,” explained Gregory Treverton.
Treverton is director of the RAND Corporation’s Center for Global Risk and Security. He says the past decade is a story of the FBI’s evolution from a crime-chasing agency to a crime-prevention agency. It’s now in the business of finding and preventing nascent terrorist plots that may or may not be linked to groups like Al Quaeda.
“And particularly the lone wolves. They’re almost by definition very hard to identify. They may not have a lot of connections you can see, like the Major Hasans at Ft Hood. That’s a real challenge,” Treverton said.
Sting operations have been part of routine law enforcement in racketeering and drug cases. But the FBI’s rules for running stings have changed along with the agency’s mission. Emily Berman with New York University’s Brennan Center for Justice has made a close study of FBI operating guidelines in the post-September-11th era.
“So much of it is cloaked in secrecy… even elements of use of undercover agents - are cloaked in secret. It’s hard to know… what triggered that investigation in the first place,” Berman said.
But Berman says it’s true that some rules surrounding conspiracies were broadened. If someone is willing to further the goals of a terrorist organization, she says, that is now a crime. That’s part of what makes entrapment so hard to prove in court. A defendant’s willingness to act on a plot may be more important than the question of who first proposes the plot.
Annemarie McAvoy is a former federal prosecutor who now consults on criminal issues, and teaches law at Fordham University. She cautions against placing undue weight on recorded evidence about who spoke first in any counter-terrorism case.
“They try to set up surveillance, but it’s human beings running all of this stuff. Equipment doesn’t always work. Sometimes these meetings happen a lot more quickly than we would think,” McAvoy said.
Investigators, she says, are working in a complex world.
But one former FBI agent says he sees law enforcement taking advantage of more lax rules about the front end of investigations. Mike German was an FBI agent before and after September 11th 2001. He now does policy work for the national office of the American Civil Liberties Union.
“I don’t have any problem with the FBI pur suing anyone who proposes doing harm to anyone. But there’s a difference between helping someone obtain a pistol or a rifle, that is readily accessible, versus giving them a stinger missile or a car full of plastic explosives which the people would not have been able to obtain that material absent the government’s intervention,” German explained.
German will not comment directly on what happened in Portland last November. Mohamed Mohamud’s case is moving forward. A trial date is set for April of next year.