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.