By Kari Huus, NBC News
Friday, January 11, 2013
At the trial for Mohamed Osman Mohamud in Portland, Ore. — which began with jury selection on Thursday — no one is expected to dispute these chilling facts: The Somali-born teen tried to set off an explosion that was meant to rip through a crowded Christmas tree lighting ceremony in the city center on Nov. 26, 2010.
The deliberations will focus on how Mohamud came to that decisive moment, when he was arrested using what turned out to be a fake detonator for fake explosives, part of a federal sting operation.
The defense will argue “entrapment” — that the federal agents lured the teen, who was 18 when they first contacted him — into a violent plot that he would not have been inclined to pursue on his own. Legal experts say this is essentially a Hail Mary pass — a legal argument extremely hard to win — but some factors in this case, including the defendant’s youth, could give the strategy a chance of success.
“The entrapment defense is that the person’s independent will was overborn by the suggestion or manipulation of the government,” said Kenneth Lerner, a criminal defense attorney and former federal public defender in Portland. “The government has to show that the person was willing to do it. That’s the tension.”
In many ways, Mohamud’s case resembles others in which U.S. citizens or residents, apparently inspired by radical websites, have tried to carry out attacks, only to be arrested in a sting featuring undercover agents or informers posing as terrorists or their liaisons.
A 36-page government affidavit says the FBI agents’ arranged a first meeting with Mohamud in July 2010, after he had suspicious email exchanges with a militant Islamist in northwest Pakistan. The document said the FBI believes Mohammad was trying, albeit unsuccessfully, to travel to the region to train for “violent jihad.”
It says that when the undercover agent, posing as a contact with the militant and referred to as UCE1, asked what Mohamud was willing to do for “the cause,” Mohamud chose violence:
“UCE1 told Mohamud that there were a number of ways that he could help, ranging from simply praying five times a day to becoming a martyr. MOHAMUD said that he wanted to become ‘operational.’ Asked to elaborate, MOHAMUD stated he thought of putting an explosion together but that he needed help doing so.”
In a later meeting with two agents, Mohamud proposes the Christmas tree lighting ceremony as a target for an attack, according to the document.
“The undercover agent pointed out that there would be lots of children at such an event, to which MOHAMUD replied he was looking for a ‘huge mass that will … be attacked in their own element with their families celebrating the holidays.'”
And later still, he asserted that he wanted everyone to leave the ceremony “dead or wounded,” according to the document.
The meetings culminated with Mohamud dialing a number into a cell phone that he believed would ignite a van full of explosives parked at Portland’s Pioneer Courthouse Square as thousands of people gathered there.
The “car bomb” provided by agents was not operational, authorities reassured the public later.
Mohamud, now 21, was arrested and charged with attempting to use weapons of mass destruction, which carries a potential life sentence.
The defense is likely to stress Mohamud’s lack of maturity when he was first approached by agents shortly after high school graduation.
A recent profile of Mohamud by The Associated Press suggests he was not as single-minded that the person described in the affidavit.
He entered college at Oregon State University just months before the would-be attack, taking on pre-engineering classes. While he was exploring radical interpretations of his religion, Islam, and decrying the U.S. military presence in Muslim countries, he went to parties where he was said to enjoy drinking gin, socialized with a range of students, including a group of guys who played video games and the trading-card game “Magic: The Gathering,” the AP report said, citing Mohamud’s friends and acquaintances.
Mohamud is a naturalized U.S. citizen who came with his mother came to the country as a refugee when he was 5. His parents were reunited, but later divorced.
In pre-trial testimony, it emerged that Mohamud’s father, Osman Barre, an engineer in Portland, reported his son to the FBI in August 2009, saying that he was afraid his son was being “brainwashed” by extremists.
The defense team, led by attorney Steve Sady, is expected to paint a picture of Mohamud as vulnerable to manipulation — not just by the actual terrorists but by the federal agents.
“Here’s a kid who is at a time in life when things are a little mixed up. He’s trying separate from his family and establish his own identity, perhaps to understand his religion, trying to understand Americas’ role in the world and what they are doing in Muslim countries …,” said Lerner, the former federal public defender.
“Mohamud was a very young, very impressionable kid… at the time the police approached him,” said Steve Sherlag, a criminal defense and civil rights lawyer in Portland. “I would explore and exploit that to the greatest extent possible.”
The defense is also likely to highlight the fact that the FBI does not have an audio recording of the initial meeting between Mohamud and the FBI agent, because of reported technical difficulties. Subsequent meetings, in which Mohamud expressed his determination to kill people, were recorded.
The absence of that first recording could dent the prosecution’s case that Mohamud was predisposed to commit a violent attack, says Sherlag.
“That is the crux of the entrapment case,” he said, referring to that initial conversation. “It’s very indicative of who he was when they government sting operation began. Who was he before the government started putting ideas in his mind?”
Talking to reporters shortly after Mohamud’s arrest, Attorney General Eric Holder said he confident that an entrapment defense would not be successful in the case.
“There were… 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 said. “He chose at every step to continue.”
Samuel Rascoff, assistant professor at New York University School of Law, says that the legal standard for proving coercion in a case like this is extremely strict, and rarely sticks, even when it involves young offenders.
“The law only favors those people who can successfully show that they were not predisposed to want to carry out such an attack and would never have done so without active official involvement,” said Rascroff. “On the other hand, this is probably someone who in the absence of the FBI probably wouldn’t have gotten to the point of blowing up a Christmas tree lighting ceremony. But that does not constitute entrapment within the meaning of the law.”
Ultimately, it comes down to the jury, which is now being selected. Some experts have suggested that the panel in Oregon may be more critical than average of FBI tactics and any missteps.
“Oregonians take tremendous pride in being different, independent. They have the ability to question authority,” said Sherlag. “They are willing to say ‘prove it’.”
But even with a strong entrapment defense, a skeptical jury will be challenged to set aside the horrific plot that Mohamud imagined he was carrying out.
“The idea of blowing up the square packed with families the day after Thanksgiving during an event for Christmas — it is highly emotional,” Sherlag said. “That is going to be very hard to defuse.”