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Entrapped?

December 1, 2010

Mohamed Osman Mohamud Photo

Five years ago, Portland elected officials withdrew local police support for the Joint Terrorism Task Force amidst public concern that officers embedded with federal operations would not be subject to an appropriate degree of civilian oversight. Now, after the arrest of Somail-born Mohamed Osman Mohamud, age 19, on charges of attempting to use a weapon of mass destruction last Friday night during a Christmas tree lighting ceremony attended by some 10,000 people, this decision is under review.

Mr. Mohamud’s arrest followed a months’ long joint investigation by federal, state and local law enforcement officials. The mayor, who also serves as the commissioner responsible for police oversight, learned of the investigation only after the suspect’s arrest.

The mayor seems comfortable with the decision to keep him out of the loop. After all, such investigations are highly sensitive and may involve extraordinary risks to the undercover agents engaging the suspected terrorist, including risk to their personal safety and risks of failing to uncover elements of the plot or connections to networks of operatives that could harm others.

Any investigation that involves such risks to others would, it seems to me, also suggest a much higher risk to the investigation’s integrity in the event classified information was disclosed prematurely or inadvertently than would occur in a case where the risks to others was indeed minimal. In a case where law enforcement officials believe they have everything under control, the release of information should be of less importance or concern, but that was clearly not the case here.

This point is not lost on the defense team representing Mr. Mohamud or the prosecutors presenting the government’s case. Every effort seems to have been made to acknowledge and address risks that the government’s agents would be construed as having lured an innocent man into committing an otherwise unconscionable act. As such, they have gone to great pains to make clear that Mr. Mohamud was afforded opportunities to disavow his plan and change course at several points along the way. The defense seems to be less concerned with the availability of these opportunities than the relative ease with which Mr. Mohamud’s alleged criminal dispositions were facilitated by government agents.

Mayor Sam Adams indicated Monday in a live interview with CNN that he would have been given more information in advance had there been even the slightest chance that the attack would have posed a risk of harm to the public. This begs the question then what would the mayor know when and under what circumstances?

When confronted about the decision to withdraw Portland’s support for the Joint Terrorism Task Force in a Tuesday interview on NPR Mayor Adams indicated the city’s concerns included the risk of racial or religious profiling and other violations of individual civil liberties. He conceded that things had changed a lot in the country since that decision, and acknowledged that he had a great deal more confidence in the new U.S. Attorney and FBI special-agent-in-charge now posted in his city.

Assuming this is so, one might reasonably wonder what it is about them that gives him such confidence. The city was concerned that individuals and groups targeted by terrorism investigations might not receive appropriate due process protections. He expressed concern both about how oversight of these cases might be handled as they progressed and how suspects might be handled after their arrest.

Mayor Adams seems pleased that the case is heading through an Article 3 court as opposed to a military tribunal. And he believes the citizens of Portland who will be empaneled as jurors to decide Mr. Mohamud’s fate possess the traits necessary to approach the evidence objectively.

If so, they will find a challenging set of circumstances placed before them. Published accounts of statements from officials at the local level all the way up to Attorney General Eric Holder indicate that those involved in the case proceeded mindful of past precedents associated with entrapment. These concerns seem justified on one hand: The defense has already made clear they will pursue this avenue of argumentation. But on the other hand they have little to fear: No federal jury since 9/11 has acquitted a defendant on the basis of arguments of entrapment.

How this jury will decide may well depend on how they view the choices put before the defendant. They will undoubtedly be encouraged to consider not just the weight of the choices in terms of their potential outcomes, but also the ease with which each could be pursued by the defendant. The latter part is all-important but often overlooked in such cases. Many decisions that appear irrational to others seem perfectly rational to us, especially if they reinforce the image we have of ourselves and the commitments we have previously made. In this regard, the first meeting between the agents and young Mr. Mohamud could well prove the all-important key to how this case unfolds in a courtroom. And here is where the government’s case is the weakest: They have already acknowledged that recording equipment intended to capture these conversations failed. The only record they have of these conversations is the agents’ reports of their contact.

The ideal of civilian oversight of police is a hallmark of our system of government. It ranks alongside due process and privacy in terms of principles we regard as core elements of our democratic system. Insofar as we believe we have bo room for error when it comes to protecting our nation from the potential harm of terrorism, it may soon become equally clear that we have no room for error when it comes to managing these cases.

As the Portland City Council takes up the question of whether or not to rejoin the Joint Terrorism Task Force, they will have many things to consider besides the change in politically climate nationally and locally. They must also consider what civilian authorities responsible for police oversight need to know and when they need to know it. The answers to both the general and specific questions should focus on making the community safer while upholding its commitment to justice rather than making up for the past.

 

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