Not surprisingly, the liberal left is starting to come out with expressions of sympathy for the accused Portland would-be bomber, Mohamed Mohamud, raising the specter of entrapment. The New York Times has weighed in questioning the FBI's methods. In addition, the head of the Los Angeles hqs of CAIR, Hassam Ayloush, has also criticized the undercover method of the FBI. (Undercover agents provided him with fake explosives ands arrested him as he tried to detonate a car bomb with a cell phone.)
http://www.nytimes.com/2010/12/01/us/01trust.html?_r=2
It may be helpful to define what constitutes entrapment. Since I worked undercover from time to time with DEA during my 25-year-career, I think I am qualified to give a non-lawyerly explanation.
A key word here is predisposition. Entrapment exists when a defendant is coerced or persuaded by an undercover operative or police informant to commit a crime the person would not otherwise have been predisposed to do. To make up an extreme example, say a government informant coerced a law-abiding citizen to commit a crime under threat of harm to the person or the person's family. That would be outrageous conduct and would constitute entrapment. It is not entrapment, however, for an undercover officer or informant to negotiate a drug deal with a drug dealer- who is already a drug dealer- (classical DEA case). On the other hand, a defendant has a prior drug trafficking offense or can be shown to have been engaging in drug dealing prior to the case in question, his/her defense of entrapment has little or no chance of succeeding.
Entrapment defenses are also countered by other evidence showing prior history of committing similar acts or by taped conversations showing the frame of mind of the defendant including statements of prior acts and interest in committing future acts. It appears in this case that the authorities went to great lengths to document this mentality on the part of Muhamed.
Another aspect of entrapment law is that the police may "afford the opportunity". For example, if the New York subway is having a rash of defenseless homeless people or drunks being assaulted, the police may use undercovers to pose as passed out drunks and arrest predators who attack them. The argument is that one who is not predisposed to attack a defenseless person would leave them alone. There was a famous case in New York City a few decades ago when an undercover cop actually had his throat slashed before his fellow officers could intervene.
In summary, the issue of entrapment will likely be used as a defense if this case goes to trial. I assume or perhaps I should say hope that the authorities will have ample evidence to show that this defendant was determined to commit a terrorist act before he came into contact with the FBI or an FBI informant.
Pending that, it would be prudent for the liberal media and people like Hassam Ayloush to let the evidence come out before making pronouncements implying that Mr Mohamud is a victim of entrapment.
I don’t believe the liberal medium. I do, however, have great confidence in the integrity and knowledge of the Chief Deputy Federal Public Defender in Portland, who has raised legitimate questions about the possibility of entrapment, which is his plain duty. It is the duty of the United States Attorney to present evidence that the investigation and indictment were legitimate. It is the duty of the district judge to weigh any and all motions and briefs, and ultimately, the duty of a jury to consider all admissible evidence and decide guilt or innocence. It would be, I think, a good think if these issues were not prematurely debated in the media, liberal, conservative, psychopathic, or (in rare cases) sincerely informative.
ReplyDeleteA well trained law enforcement officer who is inclined to do so can pull off a very sophisticated entrapment, with all the appearance of legitimacy, as my favorite retired DEA agent clearly and accurately describes legitimate procedure. Some people like to think that all law enforcement officers are dedicated public servants and paragons of virtue. (Some are.) Some people would like to believe that all law enforcement officers are gang-bangers in blue uniforms. (Some are). In real life, people who go into law enforcement have many motives, and act on many secondary motivations. It is not wise to either give them every benefit of the doubt, nor to assume evil intentions.
There was a case several years ago in New York where a police undercover squad shot and killed an employed, legally resident, married, Haitian father of two children. The decoy was looking for a drug buy. He was dressed as the kind of low-life scum who might get a dealer to offer goods for sale. The outraged father, waiting for a bus on his way home from work, reacted as many decent citizens would have. He pulled back his fist to throw a punch. The back-up squad promptly ran up and shot him.
Mayor Giuliani at first tried to pawn off some half-baked smears about the victim’s character on the press, which he had to back off of when the truth became obvious. Gary’s account of the undercover officer whose throat was slashed is a solemn reminder of why the back-up squad was to quick to react. The death of a law-abiding citizen is a reminder that police need to be more careful how they conduct such operations.
The feds have also gone overboard in some drug investigations, especially when relying on recently arrested people who are eager to show “cooperation” to get their own sentence reduced. E.g., the drug dealer who induced a casual acquaintance and sometime customer to buy and sell (something he had never done, although he had used), in order to get the dealer some consideration at sentencing. (I recommend a Frontline episode entitled “Snitch” and a dramatization called “Guilt by Association.”
Was entrapment used in Portland? If the agents involved are entirely accurate in saying they repeatedly offered the suspect opportunity to back off and take less violent methods to express himself, probably not. Exactly how he came to their attention, and became the target of an investigation, remains a matter worthy of some scrutiny.
Cross-posting from comments responding to the same post by Gary at Alexandria:
ReplyDeleteJerry Pournelle, a man that no one could ever credibly accuse of liberal tendencies, had this to say about the Portland bomber:
The news is full of the triumphal announcement of how they managed to sucker a 19 year old nut case into trying to set off a truck load of baking soda. A few hundred police and security people were involved. The total cost of this caper hasn’t been announced, but I would be astonished if it were only a million dollars. It will cost another million to imprison this chap for the rest of his life. One does wonder just what was learned by leading this kid on for so long. Perhaps something important.
http://www.jerrypournelle.com/view/2010/Q4/view650.html#Tuesday
Thanks to John Edens for this timely perspective.
Siarlys,
ReplyDeleteWhy would I want to target someone who is not disposed to commit a crime in the first place?
You probably wouldn't Gary. I believe you to be a man of integrity.
ReplyDeleteWhy would someone of slightly less integrity, who exercised police powers, want to do that?
1) Breaking a "big case" can feed the ego and be good for promotion. Some people go into police work because they like giving orders, wearing a uniform, carrying a weapon legally, and making other people afraid.
2) Statistical reports showing large numbers of arrests and convictions look good. Statistical reports showing "all quiet on the western front" result in budgets being cut.
3) Entrapment, if not an evil, cynical plan, can be a mutually reinforcing process. The cop has a suspicion, the suspicion leads to an approach of the suspect, the suspect wasn't really thinking of doing anything, but is intrigued, the cop becomes more suspicious and steps up the undercover operation, the suspect is drawn in, fed by the mutual expressions of his supposed comrade, the cop becomes certain he has a dangerous character on his hands...
And because all this is possible, when a guilty party is arrested, all these possibilities have to be eliminated, and, the attorney for the accused will, of course, raise these plausible defences.