Entrapment Defense Hasn't Worked In Terror Cases

Mohamed Osman Mohamud is only the most recent alleged terrorism suspect to be arrested in an FBI sting operation. And the entrapment defense has failed for every terror defendant who has tried it since 9/11. NPR counter-terrorism correspondent Dina Temple-Raston talks about the recent operations.

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TONY COX, host:

This is TALK OF THE NATION. Im Tony Cox in Washington. Neal Conan is away.

Last week, thousands of people came out for the annual Christmas tree lighting in downtown Portland, Oregon. They later learned that the FBI had arrested a 19-year-old for plotting to detonate a car bomb at that event.

Mohamed Osman Mohamud, a Somali-born U.S. citizen, is only the most recent alleged terrorism suspect to be arrested in an FBI sting operation, and as in several similar undercover operations, the FBI provided Mohamud with the fake explosives and the cell phone that he thought would detonate them.

Critics of the sting say they verge that they verge on entrapment, duping susceptible young men who could never carry out dangerous plots on their own. But investigators insist that Mohamud and others like him wanted to kill Americans and would have found a way to launch a violent attack one way or another.

Law enforcements officers, defense attorneys, prosecutors - when it comes to terror investigations, do the ends justify the means? Give us a call. Our number here in Washington is 800-989-8255. The email address is talk@npr.org. And you can join the conversation at our website. Just go to npr.org, and click on TALK OF THE NATION.

Later, questions and answers on the first open enrollment period under the new health law. But first, entrapment and terror investigations. Joining me now to help us understand this case and the use of FBI sting operations in terror investigations is NPR counterterrorism correspondent Dina Temple-Raston. She is with me today from our New York bureau. Dina, welcome.

DINA TEMPLE-RASTON: Thank you.

COX: Let's begin with this. One of Mohamud's defense attorneys is saying that there is, quote, "potential for entrapment," end-quote, in this case. From what we know so far, is that a defense likely to hold up?

TEMPLE-RASTON: Well, I mean, the jury's going to need to decide whether this was an entrapment case or not. And what we know so far is from an FBI affidavit on the case, and apparently Mohamud and an FBI informant had their first meeting at the end of July, and he allegedly said at that meeting that he wanted to be operational and wanted to put together a car bomb. And then this informant apparently offered to put him in touch with an explosives expert.

Now, most of the conversations, apparently, with Mohamud were recorded. But apparently this first one wasn't. And that was the one where this exchange about operational took place. So I suspect defense attorneys are probably going to focus on that.

But the heart of entrapment is really that a suspect was already predisposed to committing a crime before agents stepped in and offered to help with one. Or another way to understanding entrapment is this way: Someone has to have a choice and then essentially make the wrong choice.

And in this case, according to the affidavit, agents kept telling Mohamud that he didn't need to kill to be a good Muslim, but he allegedly wanted to move forward with the plot anyway.

COX: So is it murky at all in the law with regard to what role the FBI can play in encouraging a potential terrorist suspect?

TEMPLE-RASTON: Well, it is a little bit murky because how do you know if someone is already predisposed to doing something? You know, on Tuesday they may be predisposed to doing it, but by Thursday they've changed their mind. So that's why this is always so difficult.

But I will say in this particular case, what I found interesting is how sensitive the FBI appeared to be, the allegations that this kid might be able to say - and I'm calling him a kid because he's only 19 years old -to say he was entrapped.

It appears at lots of different points in talking to him that they have on tape, they're suggesting that maybe he doesn't want to kill children, maybe he should take another route to prove that he's a good Muslim.

COX: The entrapment defense has now been used several times by accused terrorism plotters but it has been consistently unsuccessful, particularly since 9/11. Is there any reason to think that this might be a difference?

TEMPLE-RASTON: Well, consistently unsuccessful is almost an understatement. There actually has not been a terrorism case since 9/11 that has used entrapment as a defense that has successfully used that to get someone off the hook.

So I think that's what the sort of key here is, is so far there's not been a lot of traction for entrapment.

COX: It would seem, or that would at least raise in some people's minds, the possibility that people don't care about that, given the fact that we're talking about terrorism suspects, and whatever you have to do to get them to stop or to prevent them is okay.

TEMPLE-RASTON: I don't know. I think every time one of these terrorism cases comes up, in which the FBI is actually providing either some sort of impetus or providing fake explosives or some way to actually launch the plot, that the words entrapment come up all the time. Entrapment defense is sort of the first thing that defense attorneys go to.

I think people care about it. I think people are talking about it. But I just think that once it gets into the court, and particularly recently I think the FBI is very sensitive to this defense, and I think that they've been trying harder to make that defense difficult to launch.

COX: We're talking with Dina Temple-Raston, NPR's counterterrorism correspondent. We are talking about entrapment and the investigation of terrorism suspects.

If you'd like to join the conversation, our number is 800-989-8255. You can reach us via email at talk@npr.org.

There are some case there is some case history, Dina, and I know that you are familiar with them. One of them has to do with I guess what was known as the Liberty City case out of Miami in 2006, involving an attempt, an alleged attempt to bomb the Chicago Sears Tower. How does this fit into the entire entrapment discussion?

TEMPLE-RASTON: I think this is the other end of the spectrum(ph). The Liberty City case, basically what happened is it never got past the bravado stage, in the sense that they talked about possibly doing it, but there was never any sort of explosive or bomb made.

And to be perfectly honest, these were I think in the beginning there were seven men who were involved. Five ended up actually getting, were found guilty in the plot. Two were acquitted, and there had to be two mistrials that took place before they were actually found guilty of this.

And I think that because it was sort of in this gray area, I think the FBI and prosecutors learned a real lesson from it, and that's why we haven't seen something like that since.

COX: Let's take a caller. We have Colin(ph) from San Francisco. He's joining us right now. Colin, welcome to TALK OF THE NATION.

COLIN (Caller): Good afternoon. From what I've read and heard about this case in the media, it does seem to me that the government may have crossed a line in not just encouraging this individual to do what he did but actively collaborating in the alleged crime itself.

My question, I guess, is if that's not entrapment, then what is? I don't even I'm not sure that this is even something that a jury would be the final word to weigh in on. I think that there are other cases, not involving terrorism but for example child pornography, where it's been seen where the government had enticed persons who ordinarily would not have committed the crime to commit the offense and that the Supreme Court then stated definitively that that was entrapment. What's the difference here, other than just simply being a terrorism case?

COX: Colin, thank you for the call. That's really what we have been trying to sort of get to the bottom of, isn't it, Dina?

TEMPLE-RASTON: It is, and I'm not going to pretend to know very much about child pornography and the laws that surround it. But I do know what's happened in terrorism cases so far.

And again, the suspect is has to be already predisposed to committing the crime, and whether the FBI provides cell phones or vans or what they say are explosives is sort of not directly related to this.

I know it would seem like it would be, but it actually isn't. I mean, if someone says, for example - and a prosecutor told me this recently - if someone says, for example, that they want to murder someone, if the FBI were to give them a gun, and say the gun doesn't work, but gave them the gun, that would not be seen as entrapment because this person was already predisposed to committing the crime.

Again, you know, someone has to have a choice, and then essentially they make the wrong one. I think that's the sort of shorthand way to understand entrapment.

COX: All right, let's go to Terry(ph) from Sioux Falls, South Dakota. Terry, welcome, you're on TALK OF THE NATION.

TERRY (Caller): Thank you both. Dina, wasn't there not a(ph) email that this 19-year-old had sent to either Pakistan or Afghanistan, looking for a weapon?

TEMPLE-RASTON: No, my understanding of the email, and remember, all I know is from the affidavit so far, because his lawyer really has not provided much detail on his side of the case, but my understanding is, is that he had written an email to somebody in Waziristan who had actually been, sort of being(ph) watched by the FBI, and had asked if he could get training. He didn't ask for a weapon, he asked for training.

COX: What is an aspirational terrorist? Describe that for us, and explain how that fits into the entrapment discussion.

TEMPLE-RASTON: Well, the way that we've tried to explain it over the years here at NPR is there's a difference between an aspirational terrorist and an operational terrorist.

An aspirational terrorist, to use the Liberty City case, are people who talk big but have no opportunity or have no intention of actually going further, or they think they don't.

And an operational terrorist would be somebody like Najibullah Azazi. He was the Afghan immigrant, the Denver-area shuttle bus driver, who went to Pakistan, actually got training on how to build a bomb, came back and had plotted and actually bought the chemicals he needed to bomb the New York City subway. That's your perfect example of an operational terrorist.

COX: So the FBI then becomes involved in scooting along, let's say, an aspirational terrorist to become an operational one so that they can be arrested?

TEMPLE-RASTON: Yeah, I'm not sure I feel completely comfortable with scooted along, but I think that the what the FBI's reasoning is, right or wrong - and so far in court it hasn't been found wrong - but in most of these cases what their reasoning is, is if the FBI did not step in and provide some of the things for this - for this plot, then someone nefarious might do so.

And Najibullah Azazi's a really good example of that. The FBI didn't know about him, and he went overseas to try and train and did train and came back with the knowledge of how to build a bomb.

COX: Is this line moving? And let me ask you this way, Dina, to think about this question. We'll take a break and come back. Is the line moving in terms of where the FBI is allowed to go with regard to its involvement with an aspiration terrorist and how far it can and cannot go before that person is legally under suspicion and arrestable?

But we're going to take a break first. We are talking about investigations into terror plots. More with NPR's Dina Temple-Raston in a moment, and more of your calls, 800-989-8255. The email address is talk@npr.org. I'm Tony Cox. Stay with us. It's TALK OF THE NATION from NPR News.

(Soundbite of music)

COX: This is TALK OF THE NATION from NPR News. Im Tony Cox.

We're talking about FBI stings in terror cases, and how investigators track and prosecute would-be bombers. Dina Temple-Raston is our guest. She is NPR's counterterrorism correspondent. She also wrote the book "The Jihad Next Door: The Lackawanna Six and Rough Justice in an Age of Terror."

When it comes to terror investigations, do you think that the ends justify the means? We would especially like to hear from those of you who have worked as law enforcement officers, defense attorneys or even prosecutors.

Our number, 800-989-8255. The email address is talk@npr.org. And you can join the conversation at our website. Just go to npr.org, and click on TALK OF THE NATION.

So Dina, let's get back to this point before we went to the break, which was whether or not the line that FBI investigators cannot cross is moving as we get into these complicated cases of investigating what we are now knowing as aspirational terrorists.

TEMPLE-RASTON: I think what's going on, and what we're seeing is a pattern in these recent cases, is that the FBI is letting these particular plots play out much longer than they ever did before, allowing the suspects to go so far as to try and detonate these explosives so that they're showing this intent, this decision to actually commit the act.

You know, there was, last September, two cases that were very, very similar to this current Oregon case. One was a young man named Hosam Smadi. He was a Jordanian who was arrested by FBI agents, and they arrested him after he had dialed a cell phone he thought would trigger a bomb that he had parked in a skyscraper called Fountain Place in Dallas.

And in that case, the FBI provided the van and the fake explosives, and he'd been discovered in a jihadi chat room, where he apparently was asking for help in launching an attack. He ended up being sentenced to 24 years in prison a couple of months ago.

And then there's another case, the Michael Finton case. He was an American who converted to Islam in prison, and he was under FBI surveillance for two years before he tried to bomb a federal courthouse in Illinois in September, 2009.

Again, it was cell phone provided to him, a van and, you know, fake explosives. His trial hasn't happened yet. It was just moved out of Springfield, Illinois, to East St. Louis because his lawyers said they didn't think he could get a fair trial in Illinois.

COX: Here's a caller who actually is in Portland, Oregon. I believe the name is Tasi(ph). Tasi, welcome to TALK OF THE NATION.

TASI (Caller): Hi, thanks for taking my call.

COX: Go on.

TASI: Oh, well, I was a block away when the incident happened. I have a shop nearby. I guess my concern is about what I do perceive from what I've read to be entrapment. I'm concerned that the initial phone call wasn't recorded. I think that's key.

But my broader concern is just about: How did we take it to this grand-scale level, to put this in a public forum, which is a mar on our city, and also just about, broadly, the creation of more fear, which I think is completely unneeded in this country right now, especially, you know, here in, you know, our small city.

COX: Before I ask Dina to respond to that, do you have in mind something that you think the FBI should or should not have done in this case?

TASI: I don't think it should have become a public situation, in front of, you know, an estimated 10,000 people at a tree lighting ceremony. I think the city of Portland did an excellent job, and the mayor did an excellent job of handling this situation.

I think the FBI did not do this city justice in taking that into a public scenario where there had to be the creation of fear. I think it could have been dealt with privately, and it should have never escalated to that level.

I'm glad that there's media coverage on it, but I just regret that it ever came into this public setting. They could have had him detonate it in another way and proved that, you know, in their opinion, he had the, you know, aspiration to create a bomb and, you know, detonate a bomb. But I don't think it should have ever been brought into the public setting.

COX: All right, Tasi, thank you very much. It's an interesting question, Dina, from the question of when the FBI decides to, you know, to act, so to speak, with regard to an arrest. How difficult a situation and a decision for investigators is that?

TEMPLE-RASTON: Well, you know, I think one of the reasons why they allow these plots to play out so far is so that they can sort of say dispositively: Look, not only did he have intent, but he actually dialed the cell phone and was waiting for the blast. And, you know, you might be stopping yourself just before you do that, if you aren't if your heart isnt into what an attack is, right?

So I just I think that the reason they let them go so far, and I understand the caller's concern, but I think they let them go so far so that they can actually prove: Look, if the suspect had the means, he would have done this.

I mean, I think what's interesting, too, and in these latest plots, is there's an argument to be made that the FBI is concentrating on people who maybe pose no real danger until they're lured into these pretend plots. And by focusing on these kinds of people, are they missing people who are more dangerous, like Najibullah Zazi or like who was the New York City subway plotter who pled guilty, or someone like the Times Square bomber, Faisal Shahzad, who also pled guilty.

COX: What's the answer to that?

(Soundbite of laughter)

TEMPLE-RASTON: Well, rhetorical questions are much easier to ask than answer. But I think that there has to be a balance struck. And I think that they're trying to find what that balance is.

I mean, if he had actually gone overseas to travel and train, I think that would have made him seem much more sinister than a kid who seems to have been lured into a plot. But we still don't know all the details of the case.

COX: Let's take another call. This is Ben(ph) from Virginia Beach, Virginia. Ben, welcome. You're on TALK OF THE NATION.

BEN (Caller): Yeah, my question is: Are they and you may not know the answer to this question. You just mentioned that, you know, you don't know all the details. But based on what you know, are you able to figure out whether or not that there's proof that prior to him coming in contact with the FBI that he had premeditation?

TEMPLE-RASTON: I'm careful to not use legal terms like premeditation. But he was on a jihadi website, looking for someone who might be able to help him train for something. He's on tape, allegedly, with the FBI, saying that he had been wanting to have a car bomb attack and be behind it for several years. And we also know that his father had contacted authorities and said he was worried about his son's radicalization.

I mean, do all those things together put together someone who's predisposed to committing the crime? Unclear, a jury will have to decide that. But these are the building blocks of that kind of argument.

COX: We're talking with Dina Temple-Raston, NPR's counterterrorism correspondent. She's joining us from our New York bureau. We are talking about entrapment and the investigation of terror suspects.

And we would like to hear from you, particularly if you work in law enforcement, have worked on any of these terror cases, either as a defense lawyer or as a prosecutor. Our number here in Washington, 800-989-8255. Talk@npr.org, that's the email address to reach us.

One thought that I have for you, Dina, is this: We have seen, time and again now, this particular sting operation model, let's call it that. There are similarities among them: the fake explosives, the cell phones.

No matter how one might feel about the approach, does it seem reasonable to suspect that would-be plotters would eventually get wise to this kind of scheme?

TEMPLE-RASTON: I've actually got a great behind-the-scenes story about that. I had mentioned earlier these two other cases, the Hosam Smadi and the Michael Finton case. They both occurred in September of 2009. And they both had the same sort of narrative, right, which was that the FBI had found them in jihadi chat rooms. The FBI came into the situation and offered to help them put together an attack, offered a van, offered fake explosives and offered these cell phones.

Well, the Smadi case is moving more quickly than the Finton case. This is, he wanted to blow up this Dallas skyscraper, and Finton wanted to blow up this courthouse. So they actually had to slow down the Smadi case, they being the FBI, because they were worried that there would be publicity about the Smadi case when they arrested him, Finton might see it and then realize that the same ruse was being used for him.

COX: And yet they continue to use that ruse, and apparently it worked in this instance, but we don't know whether it will continue to work or how effective it might continue to be.

TEMPLE-RASTON: Well, at least they should change the car from a van, if nothing else, you know, or just change the little details because it's awfully this is almost like a broken record.

COX: Let's go to Dan(ph). He's joining us from Corvallis, Oregon. Dan, welcome to TALK OF THE NATION.

DAN (Caller): Yeah, hello.

COX: Hello, Dan, welcome. You're on TALK OF THE NATION.

DAN: Thanks. I just wanted to say that if I was an aspirational terrorist and I had been reading stories like this in the paper, I'd be suspicious of any colleagues that I had and contacts. And I was wondering if your guest knows that if the FBI or other law enforcement agencies have ever used a sting operation like this as a deterrent, just to sort of promote distrust within a network of terrorists.

COX: That's an interesting question. Thank you very much, Dan. What about that, Dina?

TEMPLE-RASTON: It's a great question. It's one of the reasons why they say they do these kinds of sting operations. They think they have an enormous deterrent effect. If somebody is sort of on the fence as to whether or not they want to do something, suddenly, there's suspicion all around, and they're very worried that maybe they are being set up by someone and they're - that is exactly what they're hoping is happening.

COX: So they infiltrate, and they push the envelope as much as they legally - at least as much as they legally think that they can. And it does have a deterrent effect is what you're saying?

TEMPLE-RASTON: Well, suspicion is a wonderful thing within a cell. I mean, this doesn't just happen in this country. It happens overseas as well. I mean, when you see all these drone attacks that have been happening in Pakistan, one of the things that is happening as a result of them is that you have al-Qaida members who are actually suspecting each other because these drones are coming so close. And there have been a number of executions of members who are thought to have given up al-Qaida positions. Whether it's true or not, I don't know, but it certainly is having that chilling effect on the group.

COX: You know, Dina, we have seen sting operations of all sorts over the years, from local law enforcement right on up the ladder. Prostitution stings, stings for people who think they're coming in to get a lottery ticket or a colored TV and they end up being arrested for, you know, tickets, any number of things. It raises the question, though - and I like to get your response to it - whether or not, once a case like this gets to court, if entrapment as a legal defense is weighed differently in terrorism prosecutions versus something that is not nearly as serious?

TEMPLE-RASTON: I think it's unclear. I think, as a general matter, terrorism prosecutions have had a lot of traction among - in juries. I think what we saw actually in the Ghailani trial, which was this - Ahmed Ghailani, who was one of the embassy bombers - who was accused to being one of the embassy bombers of the 1998 African embassy attacks. And he was put on trial as the first Guantanamo detainee here in New York. And the New York jury - I think he had more than 280 counts of murder and conspiracy against him, and the New York jury found him guilty of just one.

And that cuts both ways. One is that some people said the Justice Department didn't have a strong enough case if he was only convicted on one count, even though this count carries 20 years to life in prison. And other people saw it as real progression for a New York jury, and New York juries are quite sensitive to these terrorism cases. And that is that they really looked at this and didn't say, let's throw the book at him for everything - 280 counts - instead, it was a closer call for them. And I think that was a really important step forward.

COX: We're talking with NPR counterterrorism correspondent Dina Temple-Raston. You're listening to TALK OF THE NATION from NPR News.

We have another caller. This is Luke(ph). He's joining us from Charlotte, South Carolina. And, Luke, you are on TALK OF THE NATION. Welcome.

LUKE (Caller): Welcome. Thank you. Thank you very much. Thank you for having me. Well, I just wanted to comment real quick. There was - at the beginning of the show, top of the show, there was a comment on whether law enforcement felt like there was a, like a means-to-an-end type philosophy, as long as - whatever it takes to get the job done, that's how we go about it.

I am a federal law enforcement officer, and I can assure you, everybody I've ever worked with in federal law enforcement that approach has never been taken. And there is not a philosophy of do whatever it takes just to get the person. There's a process you have to go through, and there are things in place. There are people in place, and there's policies in place to make sure that those types of things do not occur. That type of behavior is not acceptable and we - there are eyes to dot and Ts to cross when you're running an operation like this and...

COX: Well, Luke, let me ask...

LUKE: (unintelligible).

COX: Luke, let me ask you this question.

LUKE: Yes.

COX: Do you find yourself ever in the circumstance where you push the envelope as much as you can, where you maybe don't break the letter of the law but you bend it if the case is significant enough?

LUKE: No. You know, I've never been in a situation like that. I have heard of officers who do, do that. Like I said, not break it. I'm bending it. I'm (unintelligible) that would be the way to put it as well. I think they're just looking for whatever you can find in order to make it work, but there's also the philosophy amongst most - especially federal - there's a - kind of you start to feel that way, step back, look at it and then you may just need more time in order to make it work right...

COX: Luke, thank you...

LUKE: ...in order to make your case, you may need some more time to do it.

COX: Luke, thank you...

LUKE: You can't just rush into it.

COX: Thank you very much for that call. I'm rushing you just a little bit because we want to try to get one other call in before this comes to an end. This is Cary(ph) from Salt Lake City, Utah. Cary, welcome. You're on TALK OF THE NATION.

CARY (Caller): Yeah, hi. I'm retired, but I was in law enforcement. And the standard for entrapment has up until now anyway pretty much been, yes, predisposition, but the courts have pretty much held that if the officer gave the person the opportunity - even supplied him some of the means - if the person went ahead and did it without being, you know, in some way blackmailed or forced or something, he was predisposed.

There was a case a few years ago, federal-level case, where a fan of the Grateful Dead - what they called Dead Heads, went to all the concerts -was approached by a federal agent. And over a long period of time -we're talking months here - he was asked several times to obtain LSD for the guy, and he refused numerous times. And he finally just kind of got tired of it apparently and gave in, and he didn't even really obtain it. He just hooked him up with a connection. He said, yeah, this guy here has it, and the guy ended up - he tried entrapment, but he ended up -federal court put him in jail 25 to life.

COX: Do you think - really quickly - Cary, that law enforcement can go too far in this instance?

CARY: Yes, I think they can. Unfortunately, I think, because of the fear of terrorism in this country, law enforcement personnel have been given way too much leeway. There's things that wouldve cost me my badge back in the '70s that are a matter of course now. And even then, some of the stuff people did bothered me a little bit but - you know, similar to Franklin(ph) I think, he who is willing to surrender his freedom in return for security is going to end up with neither.

COX: Cary, thank you very much for the call. Our time is up.

Dina, I don't know if there's a way to put a ribbon around this to sort of get people an idea what direction we are going in. But very, very briefly, do you see a continuation of the same kind of approach working and being used in law enforcement?

TEMPLE-RASTON: I think law enforcement has come to the conclusion that they need to do these kinds of operations to prevent these homegrown terrorists from coming up out of nowhere. And I think they're trying to be careful about it. I think in this case, if you look at some of the Mohamud affidavit information, it looks like they actually were giving him lots of ways to get out of this situation, and he seemed pretty determined to do this.

COX: Dina, thanks...

TEMPLE-RASTON: We'll see what the jury thinks.

COX: Thank you, Dina. Dina Temple-Raston is NPR's counterterrorism correspondent, joining us today from our New York bureau.

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