Convicted FBI Sting Target Challenges Investigation, Domestic Surveillance; Ends Up With Nothing

from the entrapment-will-continue-until-national-security-improves dept

The Ninth Circuit Court of Appeals has upheld [PDF] a terrorism conviction, despite its own concerns about the government's behavior during the investigation. (h/t Brad Heath)

Mohamed Osman Mohamud appealed his conviction for attempting to detonate a bomb during a Christmas tree lighting ceremony in Portland, Oregon, raising several arguments -- one of those being entrapment. But the court had this to say about the FBI's sting operation.

The panel held that the district court properly rejected Mohamud’s defense of entrapment as a matter of law. The panel could not say that no reasonable jury could have concluded that Mohamud was predisposed to commit the charged offense. Rejecting Mohamud’s alternative argument that the case should be dismissed because the government overreached in its “sting,” the panel wrote that while the government’s conduct was quite aggressive at times, it fell short of a due process violation.

As we've noted here before, courts have given the government plenty of leeway in its investigations. Entrapment is a popular defense but even the DEA's predilection for setting up desperate rubes to rob fake stash houses (and asking for sentences based on imaginary quantities of nonexistent drugs) has seldom been troubled by defendants' challenges. The courts have also ordained much, much more questionable tactics, like the FBI's creation of a child porn catalog it mailed to sting targets -- even going so far as to "fulfill" the recipients' orders. This predated the FBI's current courtroom difficulties resulting from its stint as the administrators of a seized child porn website, which it kept operational for two weeks while it deployed its hacking tool.

Mohamud's experience with the FBI began in an unlikely way: with a phone call to the agency from his parents.

His father begged him to stay in the United States, but Mohamud told him it was too late—he had his passport, visa, and ticket ready to go. When his parents confirmed that his passport was missing, they feared that Mohamud might return to Somalia, his place of birth. And when they could not reach Mohamud, they called the FBI and asked an agent to stop their son from leaving the country. Eventually, Mohamud’s mother got in touch with her son, scolded him, and brought him home. Mohamud did not actually have a visa or plane ticket, and he returned his passport to his parents.

A few days later, Mohamud’s father called the FBI agent back and told him that Mohamud had agreed to finish college and would not leave the country until he graduated. He also explained that his son had wanted to go to Yemen to study Arabic and Islam. Mohamud’s father forwarded the FBI an email from his son about a school in Yemen, which allowed the FBI to identify Mohamud as the user of the truthbespoken email account.

Using that email account, the FBI began looking into Mohamud. One of the investigative tools it utilized was communications collected by the NSA's Section 702 program. The use of these communications was also challenged by Mohamud.

The FBI's initial impression of Mohamud, after being contacted by his parents, was that he was no threat -- just a mixed-up college kid going through some ideological growing pains. But rather than leave him alone and let his parents keep an eye on him, the FBI decided to make him a sting target. Its first attempt went nowhere. Communications between Mohamud and "Bill Smith" tapered off as Mohamud apparently tried to shift his focus back to his studies.

The FBI kept going. It sent two more informants after Mohamud to determine how serious he was about participating in a terrorist attack. Mohamud seemed enthusiastic about the idea, but the details and funding all came from the undercover agents. This makes it seem unlikely Mohamud would have done anything on his own. Worse, the FBI took a tip from Mohamud's parents and rather than steer him away from terroristic leanings, it decided to turn him into a sting target.

Still, there was no entrapment, according to both courts who have reviewed the case. Mohamud showed his own inclination to commit terroristic acts -- both in terms of previous writings and statements made to undercover agents. Combined with the courts' deference to the means and methods of investigative agencies, Mohamud's entrapment defense fails.

The Section 702 evidence similarly has no effect on Mohamud's conviction. This evidence was introduced belatedly by the government, but the Appeals Court finds its late arrival wasn't prejudicial to Mohamud's defense. It's interesting that it showed up late, considering the government always had access to it. There appears to have been plenty of behind-the-scenes discussion within the government as to whether or not it actually wanted to use this "702-derived" evidence in court.

The introduced 702 evidence poses no Fourth Amendment concerns according to the Ninth Circuit.

Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained below, the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information. It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected.

What Fourth Amendment concerns exist, the court seems barely troubled by them. It trusts the government has procedures in place to minimize incidentally-collected communications and, in any case, would scale back the Fourth Amendment's protections to make room for more national security.

However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.

[...]

The panel held that Foreign Intelligence Surveillance Court-approved targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest, in light of the government’s compelling interest in national security.

The court sums everything up this way -- implying that it's still not altogether comfortable with the government's decision to steer an impressionable person down the path towards terrorism, rather than pull him back, especially when the originating tip was a call from concerned parents.

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

Marcy Wheeler -- covering Mohamud's sentencing two years ago -- sums it up this way, pointing out that the FBI and other government agencies seem more willing to blow taxpayer cash on mostly-pointless prosecution rather than do anything that might actually counter violent extremism.

So 5 years after Mohamud’s father called the FBI, asking them to help divert his son from his interest in Islamic extremism, the government put Mohamud away for the better part of the rest of his life. Even assuming Mohamud only serves two-thirds of his sentence and pretending inflation doesn’t exist, taxpayers will pay $678,600 to incarcerate Mohamud, on top of the money spent on his 4-year prosecution and the at-least 18 months of informants and undercover officers pursuing the then-teenager.

[...]

If the US can’t imagine a better response when a father calls for help but to spend 18 months catching his son a sting, we can roll out CVE [countering violent extremism] programs every other month and we’re not going to earn trust among the communities we need to.

Engaging with communities seems to rarely be an option -- whether it's the FBI or local police department with a long track record of discriminatory policing. Turning the most impressionable members of these communities into informants or sting targets seems to be the only thing the FBI's actually willing to do, which doesn't seem to be having much of an effect on worldwide terrorism.


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  • identicon
    Anonymous Coward, 7 Dec 2016 @ 4:17am

    Lesson

    "...Mohamud’s father called the FBI..."

    Are we learning?

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 7 Dec 2016 @ 5:02am

    Another court ruling that seems to let the goverment off violating a persons rights under the constitution.

    The Judges are there to ensure that Law Enforcement and the Government is following the letter of the law in cases brought before it and the Judges are there to be impartial, however this does not seem to be the case.

    More and more it seems the Judges are ignoring violations of the law and a persons rights afforded to them in the constitution and bending over backwards to help Law Enforcement and the Government in keeping the case alive.

    This very troubling that serious breach of an accused constitutional rights can be trampled on by the Government and it's law enforcement agencies and the court seems more than willing to overlook it, sorry but that is the court and it's Judges far from being impartial.

    The lines between a violation of an accused rights under the constitution seem to be getting obliterated more and more and the courts are to blame for this mess.

    More and more the Government, Law Enforcement agencies seem more than willing to break the law to achieve their goals and our rights are being eroded and violated.

    How is a person supposed to believe when they are charged and are being brought to court that they will get a fair trial when the court is tilting the tables in the governments favor? The court has gone from being an impartial part of the process to being biased against an accused.

    If the courts and it's Judges can not follow the statutes of the law and the laws of the constitution that is afforded to an accused, then the judicial system and peoples faith in it to be treated equally is broken and the right to a fair trial is nothing more than a myth.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Dec 2016 @ 6:25am

      Re:

      Stomping on the rights of the citizens seems to be the method of operation of the FBI lately. They have created more false scenarios and arrested more children that they led to perform these crimes than any other country in the world right now. Good thing the courts are willing to accept the rights losses and for another false flag arrest.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Dec 2016 @ 8:59am

        Re: Re:

        its a good way to ensure that people start shooting at government officials.

        If you are making sure everyone knows you will not give them a fair trial, what do they have to lose? A lot more people will start shooting instead of waiting to find out what the charges are because it becomes pointless when pissing in the bushes will get you on a sex offender registry.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 8 Dec 2016 @ 5:51am

          Re: Re: Re:

          This is why we need to uphold the rule of law. The courts are allowing those agencies tasked with enforcing it to get away with all sorts of shenanigans. Time to let go of, "I won, didn't I?" and get back to "Thus far and no further."

          reply to this | link to this | view in chronology ]

  • identicon
    bdcrazy, 7 Dec 2016 @ 5:14am

    Re:

    Judges just want to follow what happens in movies and TV shows. The cops/vigilantes/etc break a few laws to catch the guy who they can't get any other way. Everybody seems ok with this. Off on a technicality is LAW ENFORCEMENT SCREWING UP, not the accused getting out of it. They did it, so it doesn't matter how they get them and punish them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Dec 2016 @ 9:02am

      Re: Re:

      You brought up a good point!

      I actually cannot STAND law enforcement shows because of this. I have family members think this shit is great until I tell them... those pigs just broke the fucking law and they didn't even get the right guy.

      since you seem to like that shit, I hope you become that guy next time in real life.

      See how fucking entertaining you think that shit is then!

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 8 Dec 2016 @ 5:53am

      Re: Re:

      As I've already said any number of times, "Due process is not an impediment to justice."

      Those who believe it is are the cause of such incidents.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2016 @ 6:01am

    Well at least prison is the perfect place to deradicalize someone. And the FBI clearly knows this:
    https://leb.fbi.gov/2010/october/prisoner-radicalization

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 7 Dec 2016 @ 6:23am

    I am glad the FBI has been looking for jihadists before they strike, but am troubled by the betrayal of the father's confidence here. It would be both honorable and sensible (in terms of cultivating family informants in future cases) for the government, in consultation with the family and other decent members of their community, to put this young man on a special clemency track, rather than throwing away the key.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Dec 2016 @ 10:43am

    Hold that head up high

    So the parents contact the FBI(there's your first problem...) in order to prevent what they saw as their son possibly turning terrorist, only to have the FBI follow SOP and encourage that very thing in order to secure a conviction.

    Feel proud parents of the now incarcerated man, you ensured that your son would spend a very, very long time locked behind bars, because you were stupid or naive enough to think that the FBI cared more about the welfare of your son than their own power and prestige.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 8 Dec 2016 @ 6:07am

      Re: Hold that head up high

      Anti-religious people will tell you that $group is responsible for $horrible_things. Those of us not weighed down by prejudice are aware that religious people tend to be conservative and by "conservative" I mean,"believe in upholding the rule of law, and submit to the lawful authorities." We saw it here in the UK after the Oldham riots when parents turned their kids in to the police.

      The radical elements of $religion present themselves as being either pure or more conservative but the attraction for many is not the purity but the opportunity to exercise power or authority over others. I've seen people I know who became converts of one of the milder iterations of fundamental Christianity go off on a tear telling women to wear dresses, not trousers (which I always do), and berate people who go to the cinema because some films have sex scenes in. This was not about their faith, this was about bossing me around — and I was having none of it. This is where my anti-authoritarianism comes from, by the way. And it's not a religious thing. I see it in politics... any situation in which people can gain a moral conviction that they simply must impose on others because they are right, damn it.

      So when Sonny Jim came home and started acting up, his parents did what any parent would when wanting to put the fear of God into their brat; they went to an authority figure, in this case "the FBI" to get him slapped down and taught a lesson. To show him who actually had authority — and who has not. Authoritarians respect force, after all.

      In my case I just pointed out the flaws in "Zealot's" arguments, enforced my personal boundaries, and left it to real life to sort out the rest. He stopped being such a jerk and we all get along now.

      reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 7 Dec 2016 @ 11:22am

    The decision doesn't seem to even claim there was no entrapment, it says the entrapment doesn't matter because you can't say for sure he wasn't predisposed to commit the crime. It's basically saying predisposition is a crime in and of itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 7 Dec 2016 @ 11:23am

    While I don't condone the FBI encouraging people to become terrorists, or setting them up with fake supplies to supposedly carry out such attacks, I am disturbed by how many Muslims they can convince (rather easily in some cases) to go along with them.

    Aren't these the exact same people that we're repeatedly told are no threat, that they're peaceful, that they would never hurt anyone? It seems to me that in many cases, the only thing preventing many of these peaceful Muslims from becoming terrorists is a lack of resources to carry out the attacks that they already wish they could commit.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 7 Dec 2016 @ 1:04pm

      Re:

      Like everything else, the numbers are distorted by the media because you only hear about the incidents and you hear about them repeatedly.

      If the FBI ran similar campaigns to pick the most troubled people from any other millions deep group and trick them into attacks and crimes, you would very likely see similar stats for the number of people who would take the bait.

      This is not to say that there isn't an issue with people's islamic beliefs being manipulated, only that this isn't the only way to manipulate people.

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 9 Dec 2016 @ 4:36pm

        Re: Re:

        If the FBI ran similar campaigns to pick the most troubled people from any other millions deep group and trick them into attacks and crimes, you would very likely see similar stats for the number of people who would take the bait.

        So you're saying that they could just as easily coerce just as many Jews or Christians into committing terrorist attacks?

        This is not to say that there isn't an issue with people's islamic beliefs being manipulated, only that this isn't the only way to manipulate people.

        Here's my problem; The multiculturalism crowd would like you to believe that all Muslims fall into one of two categories:

        1. The peaceful non-violent Muslim who loves everyone and would never dream of harming a single living creature. They've lived in a western country almost their entire lives and may even have been born there. These are the people we should welcome with open arms and who we should never, ever be suspicious of.

        2. The extreme, radical Muslim who thinks of nothing but killing infidels 24/7. They have been a terrorist almost their entire life and obviously snuck into the country covertly. These are the people who are super easy to find because they spew nothing but hate and the authorities probably already know about them.

        Yet when someone carries out a relatively small-scale attack, like the Charlie Hebdo massacre, the guy who drove a truck through a crowd of people in France, or the guy who attacked people with an axe on a train in Germany, which group do they almost always come from?

        Why are there so many videos of Muslims from group #1 harassing people on the streets of other countries, chanting "U.S.A. go to Hell!", praising Osama Bin Laden, destroying Christmas trees, etc? Why is it that all it takes to turn a percentage of group #1 into members of group #2 is to do something they find offensive, like burn a Koran or draw a cartoon of Mohammad?

        It's not politically correct to say this, but while any individual Muslim might be a great person, Muslims as a whole are a rather volatile group who live their lives according to a doctrine that is often used to preach hate toward non-Muslims.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Dec 2016 @ 1:16pm

      Re:

      I am disturbed by how many Muslims they can convince (rather easily in some cases) to go along with them.

      Perhaps because that is who they choose to target?

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 9 Dec 2016 @ 4:39pm

        Re: Re:

        Perhaps because that is who they choose to target?

        And did they just pick Muslims as a group at random? Did they put all the different religions on a dart board and Islam just happened to get the most darts in it?

        Why aren't they trying to coerce Jews or Buddists into committing terrorist attacks?

        reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 7 Dec 2016 @ 2:38pm

      Re:

      Do you fear the Irish because so many of them were part of the IRA? they conducted terrorist attacks on children and women.

      Brainwashing someone into committing what they think is a real attack, when it isn't. Means you should probably fear the people in charge not the ones carrying out false flag attacks.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 8 Dec 2016 @ 6:09am

        Re: Re:

        What Padpaw says.

        One thing, mate; there's no such thing as brainwashing. People can be convinced to make choices to do the most ridiculous things but not against their will.

        reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 9 Dec 2016 @ 4:44pm

        Re: Re:

        Do you fear the Irish because so many of them were part of the IRA? they conducted terrorist attacks on children and women.

        The IRA was an organization, Islam is a religion.

        reply to this | link to this | view in chronology ]


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