Two facts are clear from looking at a trio of cases similar to Mohamed Osman Mohamud's alleged plot to attack Pioneer Courthouse Square.
What the feds include in their initial account sometimes omits key information. And law enforcement will go to great lengths to justify the arrest of suspected terrorists.
The criminal complaint filed in U.S. District Court alleges the FBI was in contact with Mohamud for nearly six months, supplying the fake bomb and van he drove to a Nov. 26 Christmas tree lighting ceremony. He pleaded not guilty to attempting to use a weapon of mass destruction. He faces a maximum of life in prison if convicted.
Mohamud's public defenders have indicated they may pursue an entrapment defense (see "Bomb Plot Fallout," WW, Dec. 1, 2010). U.S. Attorney General Eric Holder publicly defended the FBI's tactics, and the criminal complaint alleges Mohamud forged ahead with the plot after agents gave him several chances to exit.
But New York lawyer Martin Stolar says key aspects of Mohamud's talks with the FBI may still be unknown. As he learned from his own work defending an accused terrorist, initial discussions are unlikely to be recorded on tape.
"Once somebody's been induced, and they agree to do the crime, that's when the tape recording starts," Stolar says. "He's already been induced to commit the crime, so everything on the tape is shit."
Stolar was on the defense team for Shahawar Siraj, sentenced to 30 years after his 2006 conviction for conspiracy to bomb a Manhattan subway station. Siraj's lawyers accused the FBI of stoking his rage using pictures of Muslims suffering at Americans' hands.
But if that happened, the incident was never captured on recordings of Siraj's talks with a paid FBI informant. The court found no evidence the feds acted out of line except Siraj's own word. Likewise, the FBI claims its first meeting with Mohamud went unrecorded due to "technical problems." That was the meeting where the FBI says it first asked Mohamud to "do some research about possible targets." Mohamud's lawyers have already questioned why that important meeting wasn't taped.
The feds initially omitted a key fact in a second case similar to Mohamud's—the 2009 arrest of James Cromitie and three others later convicted of trying to blow up a synagogue in the Bronx. The defense's case rested in part on the fact that an undercover informant had promised the defendants $250,000—information left out of the government's indictment.
A third case similar to Mohamud's from 2009 shows how far law enforcement will go to make a terrorism bust. In 2007, the FBI in Springfield, Ill., began tracking Michael Finton, a fry cook who'd converted to Islam while in prison for assault and robbery. The feds' paid informant was a convicted drug trafficker still dealing small amounts during the investigation, according to an affidavit that said law enforcement considered him "highly reliable."
Finton was "very upset" about the 2008 Israeli offensive in Gaza and wished to travel abroad to fight with Hamas, the affidavit says. He said he didn't want to be a suicide bomber and "would rather carry a gun on the front lines wherever it was needed, whether Pakistan, Afghanistan, Somalia or anywhere," the affidavit says.
"It appeared that Finton was on the verge of taking action, so it was decided to proactively provide him with an opportunity for action that we controlled," the affidavit says.
An FBI employee told Hinton he "needed to look and see what the best targets were" in Springfield, suggesting "targets that would really shock people," according to the affidavit. Finton suggested the Illinois Secretary of State's Office, but the FBI employee "said federal would be better," the affidavit says.
Finton finally suggested the Paul Findley Federal Building in Springfield, with possible collateral damage to the office of U.S. Rep. Aaron Schock (R-Ill.) across the street. As in Mohamud's case, the FBI prompted Finton to dial a phone twice trying to detonate a phony bomb.
Finton now faces a life sentence if convicted of attempted use of a weapon of mass destruction and attempted murder of federal employees. His trial is set for March.
Facts and context find their way eventually into the court record—even when they're omitted from the initial criminal complaint, says Xavier Amadour, a clinical forensic psychologist at Columbia University.
"In fairness to the FBI, they're cherry-picking," he says. "In reality, we do have a presumption of innocence. You have to look at everything."
Amadour—a defense witness for the Unabomber and alleged "20th hijacker" Zacarias Moussaoui in the 9/11 attacks—says the 19-year-old Mohamud seems like an "angry adolescent screwing around on the Internet" rather than the determined terrorist the FBI has depicted.
"It appears to me," Amadour says, "that he was window shopping and then got pulled in by a good salesman."