Not all of the more than 500 terrorism prosecutions reviewed in this investigation are so action-movie ready. But many do have an element of mystery. For example, though recorded conversations are often a key element of prosecutions, in many sting cases the FBI didn't record large portions of the investigation, particularly during initial encounters or at key junctures during the sting. When those conversations come up in court, the FBI and prosecutors will instead rely on the account of an informant with a performance bonus on the line.
Mohamed Osman Mohamud was an 18-year old wannabe rapper when an FBI agent asked if he'd like to "help the brothers." Eventually the FBI gave him a fake car bomb and a phone to blow it up during a Christmas tree lighting. Illustration: Jeffrey SmithOne of the most egregious examples of a missing recording involves a convoluted tale that begins in the early morning hours of November 1, 2009, with a date-rape allegation on the campus of Oregon State University. Following a Halloween party, 18-year-old Mohamed Osman Mohamud, a Somali-born US citizen, went home with another student. The next morning, the woman reported to police that she believed she had been drugged.
Campus police brought Mohamud in for questioning and a polygraph test; FBI agents, who for reasons that have not been disclosed had been keeping an eye on the teen for about a month, were also there. Mohamud claimed that the sex was consensual, and a drug test given to his accuser eventually came back negative.
During the interrogation, OSU police asked Mohamud if a search of his laptop would indicate that he'd researched date-rape drugs. He said it wouldn't and gave them permission to examine his hard drive. Police copied its entire contents and turned the data over to the FBI—which discovered, it later alleged in court documents, that Mohamud had emailed someone in northwest Pakistan talking about jihad.
Soon after his run-in with police, Mohamud began to receive emails from "Bill Smith," a self-described terrorist who encouraged him to "help the brothers." "Bill," an FBI agent, arranged for Mohamud to meet one of his associates in a Portland hotel room. There, Mohamud told the agents that he'd been thinking of jihad since age 15. When asked what he might want to attack, Mohamud suggested the city's Christmas tree lighting ceremony. The agents set Mohamud up with a van that he thought was filled with explosives. On November 26, 2010, Mohamud and one of the agents drove the van to Portland's Pioneer Square, and Mohamud dialed the phone to trigger the explosion. Nothing. He dialed again. Suddenly FBI agents appeared and dragged him away as he kicked and yelled, "Allahu akbar!" Prosecutors charged him with attempting to use a weapon of mass destruction; his trial is pending.
The FBI's defenders say the bureau must flush out terrorist sympathizers before they act. "What would you do?" asks one. "Wait for him to figure it out himself?"
The Portland case has been held up as an example of how FBI stings can make a terrorist where there might have been only an angry loser. "This is a kid who, it can be reasonably inferred, barely had the capacity to put his shoes on in the morning," Wedick says.
But Tidwell, the retired FBI official, says Mohamud was exactly the kind of person the FBI needs to flush out. "That kid was pretty specific about what he wanted to do," he says. "What would you do in response? Wait for him to figure it out himself? If you'll notice, most of these folks [targeted in stings] plead guilty. They don't say, 'I've been entrapped,' or, 'I was immature.'" That's true—though it's also true that defendants and their attorneys know that the odds of succeeding at trial are vanishingly small. Nearly two-thirds of all terrorism prosecutions since 9/11 have ended in guilty pleas, and experts hypothesize that it's difficult for such defendants to get a fair trial. "The plots people are accused of being part of—attacking subway systems or trying to bomb a building—are so frightening that they can overwhelm a jury," notes David Cole, a Georgetown University law professor who has studied these types of cases.
But the Mohamud story wasn't quite over—it would end up changing the course of another case on the opposite side of the country. In Maryland, rookie FBI agent Keith Bender had been working a sting against 21-year-old Antonio Martinez, a recent convert to Islam who'd posted inflammatory comments on Facebook ("The sword is cummin the reign of oppression is about 2 cease inshallah"). An FBI informant had befriended Martinez and, in recorded conversations, they talked about attacking a military recruiting station.
Just as the sting was building to its climax, Martinez saw news reports about the Mohamud case, and how there was an undercover operative involved. He worried: Was he, too, being lured into a sting? He called his supposed terrorist contact: "I'm not falling for no BS," he told him.
Faced with the risk of losing the target, the informant—whose name is not revealed in court records—met with Martinez and pulled him back into the plot. But while the informant had recorded numerous previous meetings with Martinez, no recording was made for this key conversation; in affidavits, the FBI blamed a technical glitch. Two weeks later, on December 8, 2010, Martinez parked what he thought was a car bomb in front of a recruitment center and was arrested when he tried to detonate it.
Frances Townsend, who served as homeland security adviser to President George W. Bush, concedes that missing recordings in terrorism stings seem suspicious. But, she says, it's more common than you might think: "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.' Sometimes, I admit, they might not record something intentionally"—for fear, she says, that the target will notice. "But more often than not, it's a technical issue."
Wedick, the former FBI agent, is less forgiving. "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 says. "So why in many of these terrorism stings are meetings not recorded? Because it's convenient for the FBI not to record."