On October 3, 2010, Mohamud dropped off the bomb components the undercover agents had requested. He also included a pack of gum with a handwritten note that read: “good luck with ur stereo system Sweetie. Enjoy the gum.” The undercover agents picked up Mohamud that same day and drove him to a hotel. He described Pioneer Square to them in detail and then laid out a plan, including where they should plant the bomb. “It’s gonna be a fireworks show,” Mohamud said, showing agents pictures on his laptop of specific parking spots near Pioneer Square. He handed one of the agents a thumb drive with the images. The undercover agents then demonstrated to Mohamud how to detonate the bomb once he had it in position. “Do you remember when 9/11 happened, when those people were jumping from skyscrapers? I thought that was awesome,” Mohamud told them. “I want to see that; that’s what I want for these people. I want whoever is attending that event to leave, to leave either dead or injured.” The undercover agents then recorded a video of Mohamud in which he threatened the United States, praised Allah, and read a poem.
On November 23, 2010, the undercover agents drove Mohamud to a storage unit they had rented to store the bomb materials, which included two barrels, a gasoline can, electrical wires, and a large box of screws. The three of them loaded the materials into the car, as well as reflective traffic markers, hard hats, safety glasses, vests, and gloves—all props for their cover.
Three days later, on November 26, the day of the Christmas tree lighting ceremony, the agents met Mohamud in a hotel room. The bomb was now assembled, though Mohamud didn’t know it was inert. “Beautiful,” he said of the weapon.
Mohamud and the undercover agents put the bomb in the car and drove to Pioneer Square, which was packed with people. They parked in one of the spots Mohamud had scouted out, then walked away from the vehicle, hard hats on so as not to raise suspicion. From a safe distance, Mohamud dialed the number that he believed would detonate the bomb. It failed. He dialed again. That’s when FBI agents rushed in and arrested him. He kicked and screamed as he was surrounded. “Allahu Akbar!” he yelled. “God is great! Allahu Akbar!”
Announcements of terrorism stings always make for big news in the cities in which they occur, but Mohamud’s arrest—involving a bomb plot in a crowded downtown area—drew more interest than most. It immediately made national news, splashing across the front pages of newspapers and getting covered by every broadcast and cable television news outlet in the country. The CBS Evening News, on November 27, 2010, showed footage of the Pioneer Square Christmas tree lighting ceremony. “Three, two, one,” the crowd chanted, and then the massive tree lit up with lights. “The plan was to kill as many people as possible,” CBS reporter Terry McCarthy said in the segment. “As thousands gathered for a tree lighting in Portland’s Pioneer Square, nineteen-year-old Mohamed Osman Mohamud allegedly parked a van at the corner and attempted to detonate what he thought was a bomb.”6
It is at this point that the Mohamud case converged with another FBI terrorism sting. Remember Antonio Martinez, the twenty-two-year-old who, with the help of an informant and an undercover FBI agent, tried to bomb a military recruiting center outside Baltimore? Nearly 3,000 miles away, Martinez was one of the millions of people who heard the news of Mohamud’s arrest in Oregon. At the time, he was the unknowing target of an FBI sting that seemed just like the one that had ensnared Mohamud. After seeing news of Mohamud’s arrest, Martinez became worried. Was he, too, being lured into a trap?
On November 27, 2010, the day after Mohamud’s arrest, Martinez called his supposed terrorist contact, explaining that he had seen a story on the news about a man in Portland who had tried to detonate a bomb. The whole thing was a setup, Martinez told his contact, and he needed to know what was going on with their operation in Baltimore. “I’m not falling for no BS,” he said.7 The informant told Martinez that they should meet in person. He agreed. In the entire sting, this meeting was the most important one, as Martinez had grown suspicious and was ready to back out of the plot. What would the FBI operative say to Martinez to keep him on board? We’ll never know because their conversation wasn’t recorded. In an affidavit, the FBI blamed this on a recorder malfunction. Whatever the informant said during this unrecorded meeting, his words were enough to calm down Martinez. The next day, Martinez told the informant by phone: “I’m just ready to move forward.” A week later, Martinez was arrested in a scene almost identical to Mohamud’s. He tried to detonate a car bomb remotely. It failed. When he tried a second time, FBI agents arrested him.
If you take a close look at all the terrorism stings the FBI has engaged in since 9/11, you’ll find missing recordings in nearly every one. While some are like the Martinez case—an important meeting going unrecorded due to what is reported to be recorder malfunction—more often, it is the initial encounters between the informant and the target, a critical time in a sting operation, that aren’t recorded. In the Oregon case, Mohamud’s first meeting with an undercover agent was not recorded—a problem the FBI attributed to the malfunctioning of its recording equipment. However, the same thing happened in the case of the Newburgh Four, in which Shahed Hussain spent four months with James Cromitie before the FBI decided to start recording their conversations. And even after recordings began in the Newburgh sting, the FBI elected not to tape some meetings, including vital ones such as when Hussain took the four men to dinner at a T.G.I. Friday’s the night before the planned bombing and offered them money to carry forward with the plot.
Without recordings of these meetings, federal prosecutors must ask jurors to believe without question the recounting of events from an FBI informant—a man who usually has a past that includes some combination of violent crime, fraud, and deceit, and who has credibility only because he’s been given the FBI’s imprimatur. Defense lawyers then must convince the jury that the informant, despite his FBI association, is an untrustworthy, unsavory, and unfit witness. Halfway through the Newburgh trial, for example, defense lawyer Vincent L. Briccetti attempted in cross-examination to emphasize to the jury that without recordings, the government’s informant, Shahed Hussain, couldn’t be trusted to tell the truth.
“Now is it fair to say, sir, that a lot of what you testified to on direct in response to [the prosecutor’s] questions related to tape recordings that were played for the jury?” Briccetti asked.
“Yes, sir,” Hussain answered.
“But not everything that you testified to related to tape recordings, correct?”
“There was some that was testified that was not taped.”
“Well, there were several months’ worth of meetings between June and October of 2008 with my client, Mr. Cromitie, which were not taped, correct?”
“Yes, sir.”
“And so you wanted the jury to trust you when you tell them what happened on those occasions, correct?”
“Yes, sir.”
“And you’re hoping they’re going to believe what you have to say about all that, correct?”
“Yes, sir.”8
In researching terrorism stings, the more I noticed missing recordings, the more I questioned current and former FBI agents about why some conversations are not recorded. Sometimes the recording equipment just doesn’t work, they told me, or it’s too dangerous to risk having the sting target discover that an informant or undercover agent is wearing a wire. “Every time you’re doing an undercover, you have to factor in the level of danger to the informant or to the agent,” J. Stephen Tidwell, the FBI’s former executive assistant director, told me. “If you think there’s a high risk, you’re not going to use recording equipment.”
Frances Townsend, President George W. Bush’s national security advisor for terrorism, agrees with Tidwell’s assessment. I met with Townsend, now a terrorism analyst for CNN, at her posh Manhattan office in early 2011, and asked her about the terrorism sting cases I’d reviewed in which meetings with targets were not recorded either intentionally or due to what appeared to be a suspiciously high rate of recorder malfunction. She
couldn’t address the specific cases I asked her about, since she hadn’t reviewed them herself, but given her experience as federal prosecutor for organized crime in New York, she said she wasn’t surprised by the missing recordings. “I can’t tell you how many times I had FBI agents in front of me and I yelled, ‘You have hundreds of hours of recordings, but you didn’t record this meeting,’” she said. “But the reason isn’t always nefarious. Sometimes, I admit, they might not record something intentionally. But more often than not, it’s a technical issue. The equipment malfunctioned or the recording was inaudible.”
I’ve never been satisfied with these kinds of explanations for missing recordings. As a journalist, I’ve recorded hundreds of interviews and meetings, using basic store-bought recording equipment. I’ve only experienced one recorder malfunction, and it was due to human error—I accidentally stopped the recorder. However, the FBI, with its sophisticated equipment, seems to experience these types of malfunctions regularly in terrorism stings.
In addition, the FBI’s fear that informants or agents will be put in danger if the target discovers they’re wearing recording equipment seems disingenuous since terrorism sting targets are dangerous only because the FBI says they are. Unlike in organized crime investigations, the FBI doesn’t need to fear that terrorism sting targets, upon discovering that they are being set up, will pull out guns and start putting holes in informants and undercover agents. Terrorism sting targets rarely have weapons of their own, and most are scrawny young guys incapable of physically overpowering the average FBI agent.
One reason why missing recordings are so suspicious can be found in clues in the meetings between informants and targets that are recorded during FBI terrorism stings. It’s not uncommon for informants to be caught on tape goading sting targets into moving forward with terrorist plots. “Do you want to call it off? You know, I’m not going to hold it against you,” said the Seattle informant in the case involving the mentally ill men Abu Khalid Abdul-Latif and Walli Mujahidh, not so subtly trying to shame his targets.9 If informants are willing to resort to taunts and bullying while wearing a wire, what do they say when the conversations aren’t being recorded?
That’s a question that James J. Wedick, the retired agent, often asks himself. During his thirty-four-year career with the FBI, Wedick went undercover in sting operations and later supervised agents working deep cover in sensitive criminal and drug cases. A thin, silver-haired man with a neatly groomed beard and round glasses, Wedick became interested in terrorism sting operations after he retired as a federal lawman and was hired as a consultant for the defense in a case in Lodi, California, in which an informant was caught on tape browbeating the target. In that case, a man in Oregon named Naseem Khan, who was working at a McDonald’s and a convenience store, claimed that Al Qaeda second-in-command Ayman al-Zawahiri had been seen in Lodi, an agricultural town whose conservative Pakistani American community dates back to the early twentieth century—a claim the FBI later determined to be false. But based on that tip, the FBI recruited Khan to be an informant and paid him $300,000 over time to infiltrate mosques in Lodi.10
As he ingratiated himself into the city’s Muslim community, Khan settled on two targets—ice cream truck driver Umer Hayat and his son Hamid. FBI recordings suggested that Khan, whose informant code name was Wildcat, tricked Hamid into making incriminating statements and badgered him to attend a terrorist training camp. In 2003, Hamid traveled to Pakistan to meet his bride—it is not uncommon for Pakistani American families in Lodi to arrange marriages with families in Pakistan—but the girl in Pakistan rejected him. While his father and mother hustled around Rawalpindi, near Islamabad, to find a new bride for him, Hamid spent two months hanging out and doing nothing. Khan, frustrated that Hamid wasn’t doing anything that could be used to build a prosecutable case, called him in Pakistan to intimidate him.
“When I God willing, when I come to Pakistan and I see you, I’m going to fucking force you—get you from your throat and fucking throw you in the madrassa,” Khan said.
“I’m not going to go with that,” Hamid replied.
“Oh, yeah, you will go. Yeah, you will go. You know what? Maybe I can’t fight with you in America, but I can beat your ass in Pakistan so nobody’s going to come to your rescue.”11
Upon Hamid’s return to the United States, FBI agents interrogated him. After initially denying during a five-hour grilling that he had attended a terrorist training camp, Hamid, worn down, eventually confessed, saying that he had attended a remote, forested camp in Pakistan. His father, Umer, later confessed to attending the same terrorist camp—but described a fantastical place where trainees wore masks “like ninja turtles” and attacked with swords dummies made to look like President George W. Bush, Secretary of Defense Donald Rumsfeld, and Secretary of State Colin Powell.12 Umer later recanted his confession—saying he made it up after FBI agents refused to believe he didn’t attend the camp, basing his fanciful descriptions on scenes from the movie Teenage Mutant Ninja Turtles, which he and his family had watched several times—and pleaded guilty to making a false statement to the FBI. Hamid Hayat went to trial and was found guilty of providing material support to terrorists and making false statements to the FBI. The government’s case centered on Hamid’s confession, which, in Wedick’s view, came as a result of an illegal interrogation that involved intimidation and leading questions from an FBI agent. At the age of twenty-five, Hamid Hayat was sentenced to twenty-four years in prison.
After the Lodi case, Wedick was hired as a defense consultant for the Liberty City Seven in Miami. He’s developed a keen interest in terrorism stings as a result, and is among the leading critics of the FBI’s tactics and use of informants in these cases. He believes most of the targets of these stings lack the capacity to commit serious crimes on their own, let alone disastrous acts of terrorism. Mohamed Osman Mohamud in Portland was a perfect example. “This is a kid who, it can be reasonably inferred, barely had the capacity to put his shoes on in the morning,” Wedick said.
Wedick doesn’t believe that certain meetings aren’t recorded in terrorism stings because the undercover activities are dangerous or the FBI’s recording equipment has a high failure rate. There’s another, more troubling explanation, he said. “With the technology the FBI now has access to—these small devices that no one would ever suspect are recorders or transmitters—there’s no excuse not to tape interactions between the informant and the target,” he said. “So why in many of these terrorism stings are meetings not recorded? Because it’s convenient for the FBI not to record. They are paying informants huge sums of money and not monitoring them correctly. With some or many conversations not being recorded, I think it’s apparent that the Bureau understands and is aware of the problem, but is decidedly more interested in not being caught flatfooted again about would-be and/or suspected terrorists and/or pathetic individuals doing whatever, so we see rather aggressive informants suggesting or proposing things J. Edgar Hoover never would have permitted, even though he had informants reportedly under every nook and cranny.”
For the FBI, missing recordings—whether intentional or the result of a recorder malfunction—come without consequences. The Bureau can justify to the public that intentionally not recording a meeting was due to circumstances that made audio equipment too dangerous—something that can be debated but not wholly proved or disproved. Without a whistleblower, it’s impossible to prove that the FBI uses recorder malfunction as an excuse when it’s convenient for agents not to record a particular meeting, such as when the target might be backing out of the plot or when an informant’s words, if recorded, could be construed at trial as inducement.
The only possible consequence for the FBI comes in court, when defense lawyers put informants on the witness stand, bare to the jury in excruciating detail the informants’ past misdeeds, and then ask the jury to question whether certain meetings weren’t recorded so they wouldn’t hear the lies the informants told to keep their targets engaged
in a terrorist plot made possible by federal law enforcement in the first place. Defense lawyers have repeatedly used unrecorded conversations in trying to sell juries on entrapment defenses, arguing that these meetings, if taped, would have contained statements that proved the FBI’s informant came up with the idea for the plot and induced the targets into moving forward with it. But juries so far haven’t bought that argument. Since 9/11, approximately fifty terrorism defendants have been involved in plots in which the informant could fairly be described as an agent provocateur, someone who provided not only the plan but also the means and opportunity for the terrorist plot. Ten of these defendants have formally argued entrapment during their trials.13 Yet none of these defendants—and only a minority risk trial in the first place with the government’s nearly perfect conviction rate and mandatory minimum sentences of twenty-five years in prison—were successful in convincing a jury that they’d been entrapped, that is, that they wouldn’t have committed their crimes were it not for the FBI informant instigating them in the first place.
In talking about FBI terrorism stings among journalists, academics and the public, I am frequently asked why entrapment has never been an effective defense in the terrorism cases. I’ve struggled with the answer to this question. It’s true that entrapment is a very risky legal strategy; after all, it requires the defendants to admit that they committed the crimes they are charged with and then hope that the jury will be sympathetic to their claim that the government induced them. It also requires the defense to disprove predisposition—the contention that the actions of the defendants prior to the introduction of the government informant suggested they would commit such a crime—and here the government has had little trouble in terrorism cases because so much today can be used to suggest predisposition. Watching jihadi videos, for example, as the Fort Dix Five did in New Jersey, or ranting about a hatred of Jews, as James Cromitie did in Newburgh, have both been viewed as evidence of predisposition. Of course, this is something of a simplification of a complicated legal subject. But with the entrapment defense, there’s something unique to terrorism sting cases. Why, after all, has there never been an effective entrapment defense in a terrorism sting case?
The Terror Factory Page 17