In the last part of this article, we discussed the ineffective strategy of using FBI terror watch lists to combat gun violence, the ease of which a person could be put on those lists, and the questionable tactics used by the FBI and other government agencies to target vulnerable individuals in Muslim communities.
Problems are always evident when the entrapment defense is tried in a case when a person is accused of terrorism. Entrapment laws state that “government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Inducement is the issue that decides whether or not a claim of entrapment can be made, and in a lot of these cases, there’s no question that some tactics that are used cross the threshold of inducement. What usually stops the entrapment defense is a finding of predisposition.
Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant “was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: “the ready commission of the criminal act,” such as where a defendant promptly accepts an undercover agent’s offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.
– US Attorney’s Manual at the US Department of Justice website
Sami Osmakac was 25 years old when he was arrested by FBI agents for attempting to use a weapon of mass destruction in January 2012 . Out of six psychologists to examine Osmakac during the trial, 4 (2 from the defense and 2 who were court appointed) gave him a diagnosis of schizoaffective disorder or psychotic disorder. According to transcripts from accidentally recorded conversations between FBI agents that were inadmissible in trial and later sealed, then published by The Intercept, the agents also had doubts as to Osmakac’s mental capabilities. Osmakac had troubles making and following plans, which is common with people who have psychosis.
Osmakac was the target of an elaborately orchestrated FBI sting that involved a paid informant, as well as FBI agents and support staff working on the setup for more than three months. The FBI provided all of the weapons seen in Osmakac’s martyrdom video. The bureau also gave Osmakac the car bomb he allegedly planned to detonate, and even money for a taxi so he could get to where the FBI needed him to go. Osmakac was a deeply disturbed young man, according to several of the psychiatrists and psychologists who examined him before trial. He became a “terrorist” only after the FBI provided the means, opportunity and final prodding necessary to make him one.
– The Intercept’s “How the FBI Created a Terrorist“, March 2015
Shahawar Matin Siraj and James Elshafay is another case, this time involving NYPD police officers. Siraj has intellectual disabilities, with an IQ of around 75. Elshafay had a diagnosis of schizophrenia and substance abuse issues. The informant was named Osama Eldawoody, and he befriended first Siraj, and then Elshafay. There are many indications that during the course of the investigation, Siraj tried to change his mind several times, saying he “had to ask his mom,” but the informant kept contacting him. The informant working with him reported that Siraj was “impressionable”. A psychologist who evaluated him described Siraj as having impaired thinking and lacked critical skills. Siraj never committed himself to bombing the Herald Square subway station, though he did state he was willing to be a look out but he “didn’t want to hurt anybody.” When arrested in 2004, Elshafay agreed to testify against Siraj in return for a five-year prison sentence. Siraj was convicted and sentenced to 30 years behind bars.
“The New York City Police Department was able to create a crime in order to solve it, and claim a victory in the war on terror, and that’s what he was sentenced as, rather than a dimwit who was manipulated”
– Martin J Stolar, lead attorney for the defense in the NY Subway Bomb Plot case.
Adel Daoud was 18 years old at the time of his arrest. Adel Daoud had intellectual disabilities and social problems. With very few friends at school, Daoud was isolated and spent a lot of time online. Daoud came to the government’s attention when he started posting about violent jihad online as a teenager. In May 2012, less than 6 months after he turned 18, two FBI undercover agents began a correspondence by e-mail with him. In July of that year, Daoud met with an undercover agent. When he started talking about violent jihad during religious services, the mosque leader, and his father told Daoud to stop talking about these topics. Another local imam told him that engaging in violent jihad was wrong.
At this point, Daoud hesitated about what was religiously proper, and sought further religious guidance from the undercover employee, asking if his sheikh overseas could issue a fatwah (religious decree) justifying attacks on Americans.69 The undercover employee told him his sheikh could not provide the fatwah and continued to plan the plot with Daoud. On September 14, 2012, the undercover employee drove Daoud to downtown Chicago, to a green jeep loaded with fake explosives. Daoud drove the jeep to the target location—a bar in downtown Chicago. Daoud exited the jeep and attempted to detonate the device, after which he was taken into custody by the FBI.
This kind of fear and prejudice that our laws have been used for is not a new phenomenon in this country. Jim Crow laws were passed after slavery was abolished. Japanese Americans were herded into internment camps in the Second World War. The passage of the Indian Removal Act in 1830 was enacted to keep the Native American population separate. People who had mental illness and intellectual disabilities went through compulsory sterilization during the early 20th century when eugenics was popular. Today, prison is the number one provider of mental health services in this country.
As Americans, we have to be aware of the mistakes of our past and those of our present, so we can truly move to a better future.
Salam Morcos and Anoa Changa contributed to this article.