FBI Entrapment Issue Dominates Hearing as ‘Christmas Tree Bomber’ Appeals to the 9th

     PORTLAND, Ore. (CN) — The Ninth Circuit heard landmark surveillance arguments Wednesday in hearing the appeal of a man who plotted to blow up a Christmas tree-lighting ceremony.
     On Black Friday of 2010, Mohamed Mohamud pushed a button that he believed would set off a truck full of bombs in downtown Portland.
     The Somali-American college student, 19 at the time, had been the target of an undercover FBI sting operation. The bombs, as well as the two al-Qaida recruiters he had befriended, were fake.
     U.S. District Judge Garr King sentenced Mohamud to 30 years in prison for the plot in late 2014, after a two-week jury trial ended in Mohamud’s conviction.
     From his indictment through his appeals, including in a brief filed February with the Ninth Circuit, public defenders have argued that their client was entrapped by sophisticated FBI agents who “preyed on Mr. Mohamud’s known vulnerabilities.”
     Currying support from the Electronic Frontier Foundation and the case along with the American Civil Liberties Union, the case has also sparked much controversy around Section 702 of the amended Foreign Intelligence Surveillance Act. This law allows the government to track phone and emails without warrants.
     Andrew Crocker of the Electronic Frontier Foundation noted in an interview that the case will make the Ninth Circuit the first appeals court to rule on what kind of surveillance Section 702 allows.
     Since it was not until mid-2013 that former National Security Agency contractor blew the whistle on the government’s secret spying tactics, Crocker noted that the discussion around surveillance in cases like these is very different today.
     “Mohamud is one of the few defendants who belatedly received notice that the government used NSA warrantless surveillance,” Crocker said.
     And that notice might never have been given, Crocker said, without “the Snowden revelations and increased public attention on activities of the intelligence community.”
     “I think we’ve seen a shift in how these cases are presented to the public, especially since the Snowden revelations,” Crocker added.
     A three-judge appellate panel heard Mohamud’s appeal Wednesday at the Pioneer Courthouse, just across the street from where the bomb was set to detonate.
     Both of Mohamud’s parents were in attendance, sitting behind the defense table.
     Assistant U.S. Attorney Kelly Zusman defended both the government’s actions and the fairness of Mohamud’s trial.
     Detailing information the government gathered before putting Mohamud under surveillance, Zusman noted the suspect had been corresponding with Amro Al-Ali, a student at Portland State University who was wanted by the Saudi government for his links to terrorism.
     U.S. Circuit Judge Carlos Bea asked the prosecutor to “point out any place in the record where Mr. Mohamud evinces a predisposition to commit a terrorist act prior to his first meeting with undercover agent Youssef.”
     Zusman said Mohamud had “praised terrorist activities” in the publication “Jihad Recollections,” and that his own father reported to the FBI that he feared his son had been radicalized online.
     She also noted that at the first meeting with the undercover agents, Mohamud said he “had been thinking about committing an act of violent jihad since he was 15.”
     Chief Deputy Federal Public Defender Stephen Sady told the court Mohamud’s trial “was marred by an array of constitutional errors,” including an outright “denigration to the entrapment defense” during the government’s closing.
     During closing arguments, Sady quoted, prosecutor Ethan Knight told the jury nine times that “an individual” could not be entrapped to commit the crime for which Mohamud was on trial.
     “It’s basically a message to the jury: ‘You don’t have to follow the law in this case. You can make up the law yourself. If you don’t think this isn’t the type of offense that entrapment should apply to, you are free to convict,'” Sady said.
     “That is so wrong.”
     The ACLU’s attorney Patrick Toomey meanwhile argued that the government has been using surveillance “to bypass the Fourth Amendment rights of Americans like the defendant” by querying the massive database of communications for specific people.
     Judge Bea asked Toomey if it was his position that if the government obtains information legally through Section 702, it “can’t rummage around in that database.”
     “Why, once it’s legally procured, does it become illegal to look at it?” Bea asked.
     Toomey responded that conversations involving U.S. citizens entail Fourth Amendment protections that do not apply when they involve only foreign citizens.
     “The court can apply a set of procedures on the back end to protect the U.S. person’s interests in these communications adequately,” Toomey said.
     “At a very minimum, the government should have to seek individualized judicial authorization before it turns around and decides to query a particular American from this database.”
     U.S. Circuit Judges John Owens and Harry Pregerson rounded out the panel. The 92-year-old Pregerson, who appeared at the hearing via video feed, did not ask the attorneys any questions.
     A spokesperson for the Justice Department declined to comment on the hearing.

%d bloggers like this: