Plotters and the Web
The case of Mohamed Osman Mohamud, the alleged would-be Oregon bomber, is similar to many in which Kohlmann testifies. The FBI affidavit paints a picture of Mohamud as a genuine threat—and perhaps the evidence presented in court will bear this out. But as the government emphasized in its public announcement of the charges, Mohamud never posed an actual danger to anyone other than himself.
Many post-9/11 terrorism prosecutions rely on a series of statutes prohibiting any “material support” offered to terrorism, a broadly sweeping term with vaguely defined limits. Under traditional conspiracy prosecutions, the government has to show that a defendant knowingly participated in planning to commit a crime. Under the material-support statutes, which were strengthened by the 2001 Patriot Act, the government has to show only that a defendant knowingly gave support to an individual or foreign group that has been designated as a terrorist entity, regardless of whether there was any intent to aid a terrorist act. “The statutes are like a utility infielder for prosecutors,” says Stephen Vladeck, a law professor at American University’s Washington College of Law. It lowers the bar for what the government has to prove, and it is invoked whenever the conduct charged is not clearly criminal under other statutes.
The material-support statutes help the government solve a thorny constitutional problem: How do you use the courts, which are designed to punish prior conduct, to preempt terrorist acts before they happen? One recurring solution has been to launch terrorism prosecutions in which no criminal plans are even alleged—because the plot is fictitious and created by the government. In these sting operations, the government uses paid informants or undercover agents to tempt defendants into convoluted schemes to either commit terrorist acts or provide material support to terrorist organizations. The informants befriend their targets and encourage their grievances. They enable them with financial and logistical help. In many cases, they secure only ambiguous assent.
Mohamud’s terrorist plot was initiated by FBI agents who had worked on the sting operation for six months. Last week, Attorney General Eric Holder told reporters he is “confident that there is no entrapment here.” Mohamud volunteered to informants that he had submitted articles to Inspire and Jihad Recollections, and his statements leave no doubt that he was a believer in holy war against American civilians. Prosecutors will argue that he had the motivation and means to act on his beliefs. But others have suggested that perhaps the FBI, as Glenn Greenwald wrote in Salon, “found some very young, impressionable, disaffected, hapless, aimless, inept loner; created a plot it then persuaded/manipulated/entrapped him to join, essentially turning him into a terrorist; and then patted itself on the back.” The disaffected loner is a frequent presence in jihadi Internet forums. Whether they themselves are dangers or are only dangerous when enticed to be by law enforcement is an unanswerable question.
After the bombing, “I said, ‘I know who this guy is.’ And the forum participants said, ‘Oh my God, that’s our friend.’ ”
Two years ago, Kohlmann testified in a case that many American Islamic leaders have called a clear instance of government entrapment. The investigation began when a group of young men who lived in and around Cherry Hill, New Jersey, brought a video to a nearby Circuit City to be transferred to DVD. The footage included the men shooting weapons and shouting “Allahu akbar” (“God is great”) in the Pocono Mountains. The clerk reported them to the local police, and the FBI subsequently dispatched two informants.
According to prosecutors, only one of the defendants spoke freely with the informant about his desire to join jihad and strike at Americans. He discussed various scenarios for attacks, and he took a drive with the informant to “case” Fort Dix. Three other men played paintball, shot guns, and tried to buy automatic weapons from another FBI informant. A fifth provided a map of the Fort Dix grounds. Together, the group watched videos of attacks on Americans.
It was acknowledged, however, that one of the defendants told an informant that it was forbidden by Islam to kill American soldiers in America and declared on tape that they would never engage in suicide missions. “We just talk. We know,” another was recorded saying. A third refused an offer to buy grenade launchers. And the defendant who provided a map of Fort Dix to the FBI informant did so because the informant had asked for it—and afterward tried to report the informant to the police.
Spending all his time scanning the web for jihadist activity has supplied Kohlmann with a narrative and a worldview, as well as the confidence to ascribe motivations to the narrative’s players. Often, when he is called as a witness at a conspiracy trial, Kohlmann is shown a series of videos, writings, and wiretapped conversations with an informant and asked to identify the people and groups referred to within them. The defendants may not have any connection to those named other than the fact that the names are mentioned in these materials. But even a neutral recitation of this material can present a very damning impression of a very dangerous person.