Published in partnership with Shadowproof.

The Ninth Circuit Court of Appeals issued a ruling that provides further support for the Federal Bureau of Investigation (FBI) and its policy of inducing individuals, typically Muslims, to plot acts of terrorism. The appeals court additionally backed the outcome of the notorious FBI sting operation against the Newburgh Four.

Mohamed Mohamud is a young Somali American man who was convicted of attempting to bomb a Christmas tree lighting ceremony in Portland, Oregon, after he was targeted in an FBI sting operation. He is currently serving a 30-year prison sentence.

His defense appealed a district court decision that affirmed his conviction. They challenged the fact that Mohamud’s “defense of entrapment” was rejected. They also challenged a district court’s decision not to suppress information collected through surveillance under section 702 of the Foreign Intelligence Surveillance Act.

At trial, as the Ninth Circuit Court of Appeals notes [PDF], Mohamud’s defense maintained a “teenager with no criminal record had neither the means nor the intent to commit domestic terrorism” until he became involved with an undercover FBI contractor, who went by the name of Bill Smith, and FBI agents, who went by the names of Youssef and Hussein. However, the government contended Mohamud’s actions before he was targeted by the FBI, such as articles he wrote for “Jihad Recollections,” indicated his “readiness to commit such a horrific act of violence” and proved he was “predisposed” to commit a crime.

James Cromitie, one of the Newburgh Four convicted of domestic terrorism offenses and sentenced to 25 years in prison, claimed the government persuaded him to engage in the plot and violated his due process. But the Second Circuit determined there were no violations of his rights, even if the government “invented all the details of the scheme” because Cromitie had expressed desire to “do something to America” and “die like a martyr.”

The Second Circuit additionally concluded government agents were permitted to target a person’s religious affiliation in order to “probe the attitudes” of an individual who may want to “do something to America.” They are allowed to “learn whether his religious views have impelled him toward the violent brand of radical Islam that poses a dire threat to the United States.”

In Cromitie’s case, his defense argued the government informant exploited a relationship to “manipulate Cromitie into agreeing to the planned attacks” on a synagogue and military targets at a National Guard base. But the Ninth Circuit believes the “illusory cultivation of emotional intimacy” is allowed. Even though the government informant offered Cromitie, a poor black man, $250,000 in cash, a barbershop valued at $70,000, a new BMW, as well as a two-week vacation, this was not deemed an entrapment scheme that violated his due process.

At sentencing, Judge Colleen McMahon declared, “The essence of what occurred here is that a government, understandably zealous to protect its citizens from terrorism, came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own…I suspect that real terrorists would not have bothered themselves with a person who was so utterly inept…Only the government could have made a terrorist out of Mr. Cromitie, whose buffoonery is positively Shakespearean in scope.”

Nevertheless, this case is part of a body of law that permits government agents and their informants to prey on vulnerable American Muslims and engage in highly questionable acts.

When the defense learned the government collected information on Mohamud under section 702 and did not notify the defense, the defense moved to suppress the evidence and requested a new trial. The defense insisted “evidence of additional surveillance” would have made it possible for the defense to “impeach the government’s narrative with respect to the propriety of the investigation” into Mohamud.

According to defense attorneys, the government surveillance against Mohamud made it possible for agents to “gain an incredibly intimate understanding of Mohamed that was then used to tailor the sting operation in a way that would maximize the likelihood that he would carry through with the eventual plan. Whether this inducement was through exploiting known vulnerabilities, such as Mohamed’s confusion about his religion and need for a father-figure, or whether it was by mimicking language found in earlier communications, any evidence of additional government surveillance was necessary to allow the jury to fully assess the government’s conduct.”

It was Youssef, an informant that pretended to be from a fake religious council, who asked Mohamud “what he would do for the cause.” Mohamud told him “anything.” Youssef then suggested “five ways to be a good Muslim.” Under the guise of guidance, he said Mohamud could pray five times a day,” “go to school to learn something that would help the brothers overseas, such as engineering or medicine,” “raise money for the brothers,” “become operational,” or “become a martyr.” Mohamud showed interest in becoming “operational.”

Although the Ninth Circuit recognizes “the undercover agents frequently flattered and praised Mohamud for his good writing or behavior” and Youssef pushed him to make a “goodbye video,” it does not think this conduct against a 19 year-old college student was enough to constitute entrapment.

Remarkably, the court concludes:

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

The fact that the Ninth Circuit selected three white mass murderers to make this statement does not make it less alarming. The Ninth Circuit is co-signing a dangerous concept of radicalization among law enforcement, which is that the adoption of radical beliefs is some kind of first step toward committing terrorism. This can significantly infringe upon the First Amendment.

It was the FBI that transported Mohamud to Portland to commit the “attack.” The FBI contacted Mohamud after he struggled to contact terrorists he was apparently trying to reach overseas.

In the study [PDF], “Inventing Terrorism: The Lawfare of Preemptive Prosecution,” attorneys Stephen Downs and Kathy Manley wrote, “Ordinarily the law prohibits the government from entrapping innocent citizens into crime, but the law provides an exception when the target is ‘predisposed.’”

“Although the term ‘predisposed’ usually describes someone who was already involved in similar criminal activity, or where evidence shows he or she was inclined to do so without any government inducement, in preemptive prosecution cases the government has successfully claimed that the term can mean that the target ‘readily responded’ to the inducement and did not subsequently withdraw from the plot.”

That is what the Ninth Circuit emphasized in this ruling.

“So far, this ‘ready response’ theory has been upheld by the courts, and so in all practical respects the entrapment defense no longer exists. Moreover, it appears that based on Islamophobia and ignorance about Islam, Muslims are often considered to be predisposed to terrorism simply due to their religion, especially if they are religiously conservative.”