In U.S. Sting Operations, Questions of Entrapment (NY Times)

By ERIC SCHMITT and CHARLIE SAVAGE

WASHINGTON — The arrest on Friday of a Somali-born teenager who is accused of trying to detonate a car bomb at a crowded Christmas tree-lighting ceremony in Portland, Ore., has again thrown a spotlight on the government’s use of sting operations to capture terrorism suspects.

Some defense lawyers and civil rights advocates said the government’s tactics, particularly since the Sept. 11 attacks, have raised questions about the possible entrapment of people who pose no real danger but are enticed into pretend plots at the government’s urging.

But law enforcement officials said on Monday that agents and prosecutors had carefully planned the tactics used in the undercover operation that led to the arrest of the Somali-born teenager, Mohamed Osman Mohamud, 19, a naturalized United States citizen. They said that Mr. Mohamud was given several opportunities to vent his anger in ways that would not be deadly, but that he refused each time.

“I am confident that there is no entrapment here, and no entrapment claim will be found to be successful,” Attorney General Eric H. Holder Jr. said Monday. “There were, as I said, a number of opportunities that the subject in this matter, the defendant in this matter, was given to retreat, to take a different path. He chose at every step to continue.”

Mr. Holder called the sting operation, in which Mr. Mohamud was under the scrutiny of federal agents for nearly six months, “part of a forward-leaning way in which the Justice Department, the F.B.I., our law enforcement partners at the state and local level are trying to find people who are bound and determined to harm Americans and American interests around the world.”

A study this year by the Center on Law and Security at New York University, which tracks terrorism cases, found that of 156 prosecutions in what it identified as the most significant 50 cases since 2001, informers were relied on in 97 of them, or 62 percent. The entrapment defense has often been raised, but as of September, it had never been successful in producing an acquittal in a post-Sept. 11 terrorism trial, the study found.

The Portland case resembles several others in which American residents, inspired by militant Web sites, have tried to carry out attacks in the name of the militant Islamic movement only to be captured in a sting operation, with undercover F.B.I. agents or informers playing the role of terrorists and, as in this case, supplying a fake bomb.

In September 2009, Hosam Maher Husein Smadi, a 19-year old Jordanian citizen, was arrested and charged with placing a fake bomb at a Dallas skyscraper. In October, Farooque Ahmed, a 34-year-old naturalized American citizen born in Pakistan, was arrested and charged with plotting to bomb the Washington Metro after meeting with undercover agents and discussing his plans and surveillance activities, the authorities said.

Some Muslim leaders in Oregon questioned how the sting operation there was carried out.

Imtiaz Khan, the president of the Islamic Center of Portland and Masjed As-Saber, a mosque where Mr. Mohamud worshiped, said several people at the mosque had questioned why law enforcement helped orchestrate such an elaborate plan for a terrorist act.

“They’re saying, ‘Why allow it to get to this public stunt? To put the community on edge?’ ” Mr. Khan said.

Mr. Khan said he and other Muslim leaders met regularly with the F.B.I. and other federal officials. In May, he was among a group of Muslim leaders in the Portland area who issued a statement condemning an attempted bombing in Times Square and thanking law enforcement for its “outstanding work” in the case.

Jesse Day, a spokesman for the mosque and Islamic center, said the circumstances of Mr. Mohamud’s arrest had stirred “some distrust, a little bit, in the tactics” of law enforcement.

The government’s 36-page affidavit filed in the Oregon case lays out a crucial conversation between Mr. Mohamud and an F.B.I. informer at their first meeting, on July 30, 2010. According to the affidavit, the informer suggested five ways that Mr. Mohamud could help the cause of Islam, some of which were peaceful, like proselytizing, and some of which were violent and illegal.

Mr. Mohamud, the affidavit said, immediately picked a violent crime: becoming “operational,” by which he said he meant putting together a car bomb. The informer then offered to put Mr. Mohamud in touch with an explosives expert, setting off the chain of events that led to his eventual arrest.

Defense lawyers may have an opportunity to challenge the government’s account of that conversation. According to the affidavit, while most of the conversations between the informer and Mr. Mohamud were recorded, that one was not “due to technical problems.”

Still, in subsequent recorded conversations, the affidavit said, Mr. Mohamud picked the target, said he had wanted to commit such an attack for several years, and repeatedly demurred when told he could walk away if he did not have it “in his heart” to go through with it.

The question of how far the police may go in inducing the subject of an investigation to commit a crime turns on whether the facts show that the defendant was already predisposed to carry out a crime should the occasion arise.

Daniel C. Richman, a Columbia University professor of criminal law and former federal prosecutor, said it was largely up to juries to decide whether to accept a defense of entrapment, which in practice is often hard to win. “These are jury questions that by and large go against the defendant, although every case is different,” Mr. Richman said.

The Justice Department also has rules on how far investigators may go in facilitating a subject’s criminal activity. The F.B.I.’s domestic operations guide, which was overhauled in 2008, notes that courts have found it to be “legally objectionable” when government agents lead a political or religious group “into criminal activity that otherwise probably would not have occurred.”

The guide also has a long section of rules on what undercover agents and confidential informers can and cannot do, but it is almost entirely redacted from a publicly released version of the document.

F.B.I. officials have said the bureau requires legal reviews and higher-level approval of activities involving undercover agents and confidential informers to avoid putting convictions at risk with entrapment accusations. But they have made clear that once someone voices an intent to commit a violent act, undercover agents and informers are allowed to respond by offering to help the subject of the investigation obtain weapons.

“It doesn’t matter whether it’s a would-be terrorist who has expressed his desire to launch an attack, or a would-be drug dealer who has indicated an interest in moving a kilo of crack cocaine,” said Kenneth L. Wainstein, a former assistant attorney general for the Justice Department’s national security division. “So long as that person has expressed an interest in committing a crime, it’s appropriate for the government to respond by providing the purported means of carrying out that crime so as to make a criminal case against him.”

William Yardley contributed reporting from Portland, Ore., and Scott Shane from Washington.