Intent: When The Idea Of A Crime Is A Crime?
(MintPress) – In Portland, Ore., Mohamed Mohamud, a 21-year-old Somali-American, was found guilty Jan. 31 for the attempted bombing of a Portland Christmas tree-lighting in November 2010.
Mohamud, who was 17 at the time of his arrest, was provided the fake bomb by FBI agents, who were posing as jihadis, as reported by AP.
The FBI has asserted that Mohamud would have found a way to commit a violent act if they have not intervened. “Mr. Mohamud made a series of choices over a period of several years — choices that were leading him down a path that would have ended in violence,” said Greg Fowler, the head of the Portland FBI office. “His actions showed little regard for the rights and responsibilities that come with being an American or respect for the lives that he was prepared to take.”
Prosecutors argued that Mohamud was predisposed to terrorism at age 15. Mohamud traded emails with an al-Qaida lieutenant that would be killed in a drone strike. He told undercover agents that he would masquerade as a college student in preparation for “violent jihad.”
As stated by AP, “Assistant U.S. Attorney Ethan Knight told the jury earlier this week that the decision would be easy. Mohamud pressed a keypad button on a black Nokia cellphone and intended to kill people. Whatever else they might think about the methods of undercover agents or the government’s decision to investigate a teenager, the underlying decision was Mohamud’s and the motivation was hatred of the West.”
Radicalized or entrapped?
Steve Sady, the attorney for Mohamud, argued that his client wasn’t radicalized with jihadist leanings, but was instead entrapped by an overanxious Justice Department. Sady states that undercover agents engaged and manipulated Mohamud’s faith and fed his ego, promising him a life leading other jihadis. The defense argues that Mohamud was confused, broken and — like many teenagers — struggling under the expectations placed on him by his parents and community.
Mohamud’s attorneys saw Mohamud as gullible, accommodating, naive and willing to play along with a plot created by FBI agents he once saw as family.
During deliberations, the jury asked the judge if Mohamud had to envision the specific crime for which he was accused, or if he merely needed to be inclined toward some kind of terroristic act. Garr King, the presiding judge for this case, responded by telling the jury that “Mohamud only had to be likely to commit the offense or one like it, and he did not specifically have to be thinking about a bomb at the specific time and place at which he and two undercover FBI agents decided to plant one.”
This sets a bad precedence about the nature of crime and the presumption of guilt in the American criminal system.
The intention to commit a crime
All of this begs an important question: Is the consideration to perform a crime a crime within itself? The major argument in major sting cases such as the ones portrayed in this article is that if the FBI or police did not intervene, the suspect would have found the means to act independent of law enforcement and could have done great harm to the public. In cases argued in court where entrapment was claimed by the defense, the argument that the suspect would have done the crime anyway is known as the “subjective test of entrapment.” This takes into consideration intent at the time of the action: Did the suspect intend to blow up the bomb? Did the suspect intend to distribute drugs?
This fails to address two points:
1) Did the law enforcement’s intervention sway the suspect’s intentions, and
2) Would the suspect have acted without law enforcement’s help? While it is reasonable to say that Mohamud would have sought a bomb later on to commit a terrorist attack, there is no proof he would.
It’s not acceptable to say that he would bomb a public area because he used a fake bomb because he made no attempts to obtain the bomb himself, and short of communicating with suspicious characters, there is no evidence he ever would obtain a bomb on his own. As such, Mohamud is being punished for being receptive to the idea of committing a bombing.
In Jacobson v. United States, it was ruled that a person shall not be found liable for a crime he/she was coerced into doing to satisfy the government’s agenda. In the case, the Nebraska man’s pornography case was overturned because it was found that the man had no predisposition toward pornography, that he was indoctrinated to the idea by a civil liberties mailing decrying the new law at the time against pornography, and because he was specifically targeted by postal inspectors. It was determined that the rationale and intentions of law enforcement in making an arrest are just as important as the crimes the suspect may or may not have committed.
Innocent until thought to be guilty
Many feel, however, that law enforcement, as an agent toward preserving the peace and protecting the people, should have access to whatever tools are available to do their job.
In American jurisprudence, guilt is determined by the Latin phrase “Ei incumbit probatio qui dicit, non qui negat” (“the burden of proof lies with who declares, not with who denies”). Also known as the presumption of innocence, it is a right assumed by all Americans. While not explicitly granted by any piece of legislation, the Fifth, Sixth, and Fourteenth amendments to the U.S. Constitution offer protections from undue or unfair address of capital or serious crimes by the government. In addition, the 1895 Supreme Court case, Coffin v. United States, established the precedent of the presumption of innocence in the United States.
While it is not the responsibility of law enforcement to weigh the guilt of a suspect, it is their responsibility to respond to threats — real or imagined — in a fair and unbiased nature. However, regularly, this is not how it works out.
In a 2012 episode of “This American Life”, the story of 19-year-old Justin was portrayed. In 2011, three undercover police officers posed as students in Justin’s high school. Eighteen years old at the time, Justin, a honor student, fell in love with an attractive 25-year-old undercover cop and they spent weeks texting and flirting with each other.
One day, the cop asked Justin if he smoked pot. He said no, but he would try to find some for her. Eventually, he did. She attempted to buy it from him, but he refused the money; he gave it to her as a gift.
Later, the school was swept by the police in a drug bust and Justin was arrested for selling a small amount of marijuana to undercover cops.
In another case circulated on YouTube, Mitchell Lawrence from Great Barrington, Mass., was sentenced to two years for selling marijuana to an undercover cop. The officer befriended Lawrence and his friends and hung out with them. One day, the cop asked Lawrence if he had any weed, to which Lawrence gave him a joint. The cop handed him $20, to which Lawrence hesitated in taking, but ultimately took as the cop insisted. Because this happened within 1,000 feet of a “drug-free school zone,” Lawrence received the mandatory minimum sentence.
In both of these cases, the rationale for the crime did not meet the prosecutorial presentation of the crime. Justin was not a drug dealer; he was a lovesick teenage boy who went out of his way to make his crush happy. Mitchell Lawrence did not sell drugs to a cop; he shared drugs with who he thought was his friend. In both of these cases, mitigating factors influenced what these two individuals would have normally done.
In other words, the expectation that a crime was being done caused a crime to be done.
While this does not meet the legal definition of entrapment, which is the coercement by law enforcement toward encouraging an individual to engage in an illegal act for the sake of arresting him, it is still ethically and morally questionable.
What is expected from law enforcement
Tod Burke is the associate dean and professor of criminal justice for the College of Humanities and Behavioral Sciences at Radford University. In conversation with Mint Press, Dr. Burke talked about the expectations of law enforcement. In dealing with a suspicious situation, the officer is charged to ascertain that a crime was committed, determine who was involved and determine if a threat still exist. In doing so, the officer should assume the innocence of those involved, and should react according to the perceived or collected evidence present; arrest should be the last alternative.
For many situations, larger organizational goals may sway an officer to react aggressively in the investigation of suspected crimes. On Jan. 25, attorneys for Brian Church of Fort Lauderdale, Fla., Jared Chase of Keene, N.H., and Brent Vincent Betterly of Oakland Park, Fla. have filed a motion to dismiss all charges against their clients in Chicago. The three men, known as the NATO 3, were accused of plotting to attack President Obama’s campaign headquarters with Molotov cocktails during last year’s NATO summit in Chicago. The three men were charged under Illinois’ never-before-used anti-terrorism statute, which defines terrorism as “intent to intimidate or coerce a significant portion of the civilian population.” This definition is so broad and covers peaceful as well as violent protests; it is functionally a catch-all law, as argued by the defense team.
In this case, law enforcement was used to silence dissent and protest. This is not the first time that the police was used in this way. In Cleveland, Ohio, five members of Occupy Cleveland — Douglas L. Wright, Brandon L. Baxter, Connor C. Stevens, Joshua S. Stafford and Anthony Hayne — were arrested and charged with the attempted detonation of a false bomb that was provided by the FBI. The five had histories of mental illness, substance abuse, homelessness, and social marginalization, and were encouraged by Shaquille Azir — the FBI’s informant — to splinter off from the Occupy movement (which they thought was too timid) to form “the People’s Liberation Army,” which was, initially, a graffiti crew.
It is felt that Azir “pushed” the five toward considering the bombing scheme. It is also felt that the FBI and law enforcement had ulterior motives in the arrest of the five: Occupy Cleveland’s encampment was in plain sight of a casino that was preparing to open, and there was pressure to close down the camp.
According to CounterPunch, “According to [veteran activist Richard] Schulte, the operation in Cleveland appears to have been part of a pre-planned narrative meant to paint Occupiers as a group with terrorist thugs in their midst, discouraging others from joining the movement. The FBI had a media statement prepared for immediate release on May Day after the arrests, and it hosted an unusually high-profile press conference the following day. There have been more than 300 pleas involving FBI informants in six years and such kind of overt media blitz from the feds is rare.”
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