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Entrapment

Comment

Defenders of Mohamed Osman Mohamud are already arguing to the press that he was set up and in court that he was entrapped. Every state recognizes a defense that argues a defendant was "entrapped," but most of them define it narrowly, as do the federal courts.

The debate in entrapment law has been between the "objective" view, which asks whether law enforcement went too far, and the "subjective" view, which asks whether the defendant was predisposed to do it.

The "objective" view is famously hard to quantify. Justice Frankfurter, in language reminiscent of Justice Stewart's "know it when I see it" definition of obscenity, explained that entrapment is established when "police conduct ... falls below standards, to which common feelings respond, for the proper use of governmental power." More practically, the inquiry is whether the police action would be likely to induce wrongdoing in a person who would otherwise resist ordinary temptation.

The "subjective" test is famously hard to meet. It focuses on whether the defendant was "predisposed" to commit the offense, defined to mean that they were "ready and willing" to do it if presented with a favorable (or even very, very favorable) opportunity to do so. The subjective test is the one most states and the federal courts apply today. The best proof that a person was predisposed to do something is, as here, that he did it.

Under either test, at least based on what we know today, this sting operation should pass legal muster. It isn't below "common feelings" for the FBI to aggressively seek out those who would bomb a downtown Christmas tree lighting by providing them the opportunity and testing their resolve.

The defense is already pointing to an allegedly incomplete tape of an early session with agents — in which, they will claim, the critical agreement was forged and inducement was dangled. But it sounds like agents went out of their way in subsequent meetings to offer the defendant a chance to pull out and demonstrate his lack of predisposition, which he did not do. Given the context, that should be enough.

However, the fact that the government sting passes legal muster does not answer all of the troubling questions it raises. The most troubling questions, of course, are how a teenage citizen of this country could hate it so much and how many other such young people are out there.

The sting operation in this case had to proceed virtually to the final step to ensure that the government would have sufficient evidence to prove the single count of attempt. Attempt requires substantial steps, if not the last ones. There was no conspiracy to charge here, much less an enterprise, because the only people the defendant ever conspired with were federal agents. All those resources had only one teenage target.

As a matter of law, I don't have a problem with going after domestic terrorism one predisposed teenager at a time. But as a matter of policy, it seems frightfully inefficient. Ideally, our policy would not be to lure teenagers, but to ensure that they aren't lured by others; to go after the real bad guys, the ones who train and arm and incite these kids to violence.

When you lure a kid, you eliminate a risk that may or may not have been realized: A kid who might never have committed a crime gets incapacitated. While I certainly don't think he has any claim to being blameless, and I would hope his successful prosecution would deter others from going down that road, fighting terrorism one predisposed teenager at a time seems like a very costly and inefficient means to wage a war.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Comments

9 Comments | Post Comment
These people are not common criminals, they are the enemy in a war. Trying and incarcerating this punk is not necessary, he should be sent to GITMO or summarily shot. What would happen if an American was caught planning an attack on Mecca.
Comment: #1
Posted by: Paul
Tue Nov 30, 2010 7:40 PM
Now I am convinced that Estrich is either senile and /or suffering from short term memory loss or like any liberal is incapable of sustaining a logical coherent argument through two facets of a single issue. In her previous column, bereft of legal support for the clearly unconstitutional "pat downs" by the TSA she upheld and indeed supported the same on the basis of fairness. Today it is "As a matter of law, I don't have a problem with going after domestic terrorism one predisposed teenager at a time" but "fighting terrorism one predisposed teenager at a time seems like a very costly and inefficient means to wage a war" The monstrously expensive and wholly inefective, wholly inefficient TSA has not apprehended one single terrorist nor has it prevented one attack yet its wholly unconstitutional freedom robbing searches of the innocent masses are fine with Estrich. On the other hand, within this piece there is an inherent underlying criticism of the authorities actually catching a terrorist by constitutional and lawful means. Estrich like every liberal seeking to find fault with America posits "The most troubling questions, of course, are how a teenage citizen of this country could hate it so much and how many other such young people are out there" Estrich does not endeavour to answer her own questions because if she were to answer honestly she would have to depart from the liberal PC mantra that Islam is a religion of peace and acknowledge that Islam and its followers are on a hate filled murderous jihad against America and its poeple.
Comment: #2
Posted by: joseph wright
Wed Dec 1, 2010 6:31 AM
Lets see -- The FBI gets a phone call from the father of a 16-year old mixed up kid. They spend 2 years training him in how to make bombs - they even help him build and explode small charges to improve his skills. Then they offer him the chance to "stike a blow for Allah" and arrest him when he tries to follow their instructions. Yep -- sounds like the all powerful FBI has saved America from another home grown terrorist! Just one question -- Who trained this mixed up kid in how to build bombs and be a terrorist? -- Answer -- the FBI!
Comment: #3
Posted by: MoneyMatters
Wed Dec 1, 2010 6:44 AM
"The most troubling questions, of course, are how a teenage citizen of this country could hate
it so much and how many other such young people are out there."

Really?

Where have young people learned that America is all rascist all the time? Greedy? Polluters of the world?
Sexually repressed? Homophobic? Xenophobic? Anyphobic of convenience?

The troubling answers are at the knees of kindhearted liberals and as many as you can count.


Comment: #4
Posted by: Tom
Wed Dec 1, 2010 9:51 AM
It really is quite simple. Liberalism is a mental disorder. Pure and simple. That is why Liberals ally themselves with Islamic Terrorists and Sharia pushers. They are mentally out of whack. They don't think along rational, compassionate lines. They think along the "do as I say, not as I do" lines. ANY woman who defends Islam either must hate herself and her children (which is insanity unto itself) or has been completely brainwashed and has no self esteem.
MoneyMatters - Well, frankly, would you be ok with the FBI finding a potential child molester and then drawing him/her in via false pretenses then arresting them for attempted child molestation, even though they facilitated what the person THOUGHT would be a successful encounter? Frankly, it wasn't the FBI that put the idea to molest children in his/her mind, they just facilitated the effort instead of allowing him/her to actually molest a child.
You'd rather let the FBI sit back and watch as someone blows up/ perpetrates a suicide bombing, killing 100's, maybe 1000's of innocents just so that they don't look like (to Liberal morons like you) they are guilty of entrapment? Just remember, the FBI didn't put it into this maniac Muslim's head to kill Christian Americans en mas. I for one feel way safer knowing the FBI is weeding out these kinds of Muslim psychotics.
Try this, go live in Iran and see what REAL abuse of power is. Oh, wait, you wouldn't, because like all Liberals you don't really want to be oppressed, just everyone else to be oppressed.
Comment: #5
Posted by: Charles
Wed Dec 1, 2010 12:20 PM
There are two types of wars. A political war and a religious war. We fought both types in WW II A political war in Germany and a religious war in Japan. The outcomes were decidedly differant.

We are fighting a religious war with the Islamic terrorists. Germany fought a political war and surrendered when they realizes they were losing. Saipan was the perfect example of Japenese emporer worship and the willingness to commit suicide rather than surrender.

Until we realize that these are religious war and act accordingly, we will be fighting forever.
Comment: #6
Posted by: Ron Kohl
Wed Dec 1, 2010 1:26 PM
Re: Ron Kohl

Ron, you are so right. It is frightening to realize that it is a religious war and it won't stop until the bloodthirsty have had their fill.

We'll be safer when we face up to that fact.
Comment: #7
Posted by: Tom
Wed Dec 1, 2010 3:02 PM
fighting terrorism one predisposed teenager at a time seems like a very costly and inefficient means to wage a war.

OK, you have registered your criticism. Now where is your suggested solution? Or could it be that you do not have one.

Why don't we just run ads in every newspaper in America telling all Muslim nut cases to show up at a specific date and time. That way we could fight them all at once, right> Uh, forgot, they probably do not read newspapers.

Waiting on your suggestion, lady. You get paid a lot of money to write this drivel. Earn your pay: tell us how to solve this problem
Comment: #8
Posted by: tophudge
Thu Dec 2, 2010 6:16 AM
It makes my blood boil whenever I am faced with the reality that there are intelligent, but ignorant, people like Susan in this country who can't, or rather won't, admit that we are at war with Radical Islam. They fail to comprehend that there is no solution short of complete and total anniliation of them before they do it to us. Being 'nice' will only see our destruction.
Has Susan given any thought as to where her children and granchildren will hide in the future when Islam is victorious?
Comment: #9
Posted by: Early
Thu Dec 2, 2010 8:03 AM
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