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Posted 12/8/20

WAS A DOPE ROPED?

A trial judge thought so. But an appellate court disagreed.

     For Police Issues by Julius (Jay) Wachtel. Considering its weighty implications, the Indictment is quite brief. Here’s an extract from Count I:

In or around July 2012, defendant Adel Daoud was introduced to [undercover FBI agent]. Between on or about July 17, 2012, and on or about September 14, 2012 [Daoud] selected, researched, and surveilled a target for a terrorist attack to be conducted in Chicago, Illinois, with an explosive device to be supplied by [UC FBI agent.] On or about September 14, 2012 [Daoud] attempted to detonate a purported explosive device outside of a bar in downtown Chicago. After doing so [Daoud] was arrested…and charged with terrorism….

Two additional counts accuse Daoud, while imprisoned, of soliciting the undercover agent’s murder and of assaulting another inmate. But we’ll leave those for later.

     Over a decade ago, one of our first posts, “If You Can’t Find a Terrorist, Make One!” argued against encouraging wannabe Jihadists. Your writer’s point of view, which was influenced by his long-ago experiences doing undercover work as an ATF agent, inspired a string of essays, from “Taking Bombs From Strangers” to its recent, unsettling cousin, “Taking Missiles From Strangers.”

Click here for the complete collection of terrorism essays

     We’re not arguing that Daoud was illegally “entrapped.” As we discussed in “The Men Who Talked Too Much,” and as Mathews v. U.S. (1988), a leading Supreme Court case on point explains, that defense rarely succeeds:

…a valid entrapment defense has two related elements: government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct…Predisposition, “the principal element in the defense of entrapment”…focuses upon whether the defendant was an “unwary innocent” or, instead, an “unwary criminal” who readily availed himself of the opportunity to perpetrate the crime.

     Like most of the dupes we’ve written about, Daoud was hardly “unwary.” In 2012 the 18-year old Islamist high school student came to the attention of the FBI through his prolific online presence, which featured Jihadist videos and posts extolling terrorism. An FBI analyst posing as a Saudi Arabian Islamist contacted Daoud, and after some supportive online chats set up an in-person meeting between his pretend cousin “Mudafar” – actually, an FBI undercover agent – and the wannabe terrorist.

     But when Daoud met Mudafar, the wannabe quickly made it clear that he lacked the ability to carry things through:

I’m not like a — I’m not like a genius. I don’t know how to make a bomb. I don’t know how to do like, basic things, you know? All I have is ideas and fantasies.

No worries, the agent helpfully replied. “Your fantasies, your, your ideas are good.” At Daoud’s sentencing hearing, prosecutors highlighted their grandiosity and repulsiveness. Daoud talked a big game, speaking of “throwing grenades into a crowded theater, shooting up a suburban mall and affixing butcher knives to a truck and driving it into a crowd.”

      Yet Daoud lacked self-confidence. So the undercover agent got things going. Why not use a car bomb, he suggested? Mudafar offered to take care of that. He also set Daoud to the task of identifying potential targets for a terrorist attack. That list wound up including shopping malls, nightclubs, bars, liquor stores, and military bases. Daoud finally settled on a Chicago pub.

     On September 14, 2012 Mudafar showed up in a Jeep with the pretend bomb already in place. It was supposedly rigged to detonate remotely. Daoud parked the Jeep in front of the pub and rejoined Mudafar in a nearby alley. Daoud had asked for permission to press the trigger when the time came, and his wish was granted. Really, one cannot imagine that the FBI would have wanted an agent to punch the button.

     Daoud triggered the “bomb.” Alas, the only explosion was of Feds. Got ‘cha!

     Daoud went directly to jail. But the FBI wasn’t done with him. Whether they “planted” Daoud’s cellmate isn’t clear, but the reported gang member quickly turned into a stoolie. And when Daoud asked if he could have someone on the outside kill the undercover agent who posed as “Mudafar,” everything was caught on tape. Daoud’s helpful new bud even set up a jailhouse phone call between Daoud and the confederate (to be sure, another FBI agent) who would supposedly direct the murderous mission. Natch, that, too was recorded.

     One year after pushing the button, Daoud now faced another charge: murder-for-hire. His mental state reportedly plunged. A year later, while still awaiting trial, he stabbed a fellow prisoner for defaming the Prophet Muhammad. Described as “zoned out” and complaining of hallucinations, Daoud was placed on meds for schizophrenia. It would be another two-and-one half years before he was adjudged competent to face the legal music.

     Daoud’s trial for punching the button, soliciting the “hit,” and the stabbing, was scheduled for November 2018, nearly six years after his arrest. That’s when he tendered a so-called “Alford” plea, which allows Federal defendants to claim innocence while conceding that the Government can prove its case. Daoud in effect pled guilty to everything.

     With sentencing looming, Daoud’s legal team submitted a 123-page memorandum that, among other things, accused the FBI of adroitly stage-managing their client from the very start:

Because Daoud did not present the UCE [undercover employee] with a plan, the UCE instructed him on numerous occasions on July 17, 2012 to “write down” his ideas. One may legitimately ask why Daoud had to “write down” ideas that he could not even articulate in the first place during the meeting with the UCE or any of the online conversations during the prior two months with the OCEs [online covert employees]. Indeed, it was the agent who continuously pushed Daoud to even come up with ideas for some type of attack or activity….(p. 58)

Recorded conversations suggest that Mudafar catered to Daoud’s religious concerns about Jihad by relaying (made-up) supportive advice from a (made-up) sheikh. Only moments before Daoud punched the button, the agent reassured him that killing women was in fact allowed:

DAOUD: Freakin' whores. Every time I get...I think I'm gonna get sick every time I see a freakin' prostitute. They should die, man. I swear to God, man. Oh yeah, but was asking, like um, are women allowed to be shot here like in Palestine?
UCE (MUDAFAR): Are women allowed to be shot where?
DAOUD: Like you know, like women directly ought to be killed here?
UCE (MUDAFAR): In America?
DAOUD: Yeah.
UCE (MUDAFAR): Yes.
DAOUD: They are?

     Given the charges, sentencing guidelines allowed everything up to a life term. Federal probation officers recommended a far more modest fifteen years. But Daoud’s lawyers considered even that excessive. Instead, they suggested that Daoud’s mental treatment continue and that he be considered for release to enroll in college in three years.

     That’s definitely not what prosecutors were looking for. Their memo (it was “only” 55 pages long) called for forty years imprisonment to be followed by “a lifetime of supervised release.” In their view, Daoud had been the instigator from the start. His own words supposedly demonstrated that all he sought from others were the resources and know-how that he might have personally lacked:

[T]he only thing I’m not really good at is the actual uh, uh doing of the operation. But all these ideas… I thought you could help with that. The only thing, the important things, okay, so the first one of the important things is the target…The other thing is uh, getting away with it…And the third thing is make it known it’s a terrorist attack. (pg. 14)

Daoud’s vicious ramblings, prosecutors insisted, demonstrated an unwavering commitment to Jihad. He didn’t have to be talked into anything:

…if it’s only like five, ten people I’m not gonna feel that good…I wanted something that like’s simple, massive, I want something that’s gonna make it in the news like tonight. (pg. 15)

As for the dastardly plot to kill the undercover FBI agent, prosecutors disputed the defense contention that Daoud’s cellmate-cum-stoolie actually called the shots. Prosecutors also severely criticized the shrink who ruled Daoud mentally incompetent for not doing “independent research” or using any of the evidence that agents gathered during their investigation.

     Two competing narratives – one from the defense, the other from prosecutors – landed on the desk of Chicago U.S. District Court judge Sharon Johnson Coleman. On May 6, 2019, more than six and one-half years after Daoud punched the button, she sentenced him to sixteen years in prison, to be followed by 45 years of supervision. Considering time already served, Daoud would be released in about a decade. In her decision, Judge Coleman criticized “hyperbole” from both sides. But she directed particularly fierce blows at the Government for having led on a mentally ill youth, an “awkward young man with few friends” who “continued to do what teenage boys do...talk big.”

     Her decision, which was essentially in line with the recommendation of Federal probation officers, was welcomed as “just and courageous” by the defense. But it dismayed prosecutors, who promptly appealed. On November 17, 2020, they got their wish. Finding it “one of those rare cases where the district court stepped outside of what was permissible under the circumstances,” a three-judge panel of the Seventh Circuit voided Judge Coleman’s decision and remanded the case for resentencing. Their opinion, which ran twenty-six pages, criticized the sentencing judge for only paying “lip service” to the seriousness of what Daoud did. Judge Coleman was berated for underplaying Daoud’s role, exaggerating his frailties, and ignoring his very real risk of recidivism:

First, the court downplayed the extreme seriousness of Daoud’s offenses in ways that conflict with the undisputed facts. Second, the court failed to account for the need to protect the public from Daoud’s demonstrably high risk of reoffending. Third, the court improperly distinguished the sentences of similar offenders by relying on Daoud’s long period of pretrial confinement. Finally, the court premised its well-below-Guidelines sentence on mitigating factors that could not bear the heavy weight that it assigned to them, given the facts in this case. (pp. 15-16)

     So the matter’s back in District Court, and the ultimate outcome doesn’t bode well for Mr. Daoud. Leaving the law for others to argue, we’re nonetheless convinced that, as Judge Coleman argued, the Feds eagerly led Mr. Daoud down the primrose path of self-destruction. During his long-ago experiences as an ATF agent, your writer and his colleagues looked askance at encouraging “schmucks” such as Mr. Daoud. His “roping” seemed inordinate, and considering his obviously needy psychological state, unconscionably so.

     Yet when unknowns post hate-filled messages, what options exist? “Preventing Mass Murder” featured accounts of two killers and one wannabe whose online rants prophesized what ultimately took place. “A Stitch in Time” discussed the benefits of taking prompt action when substantial threats arise. During the past decade, approaches ranging from visits by mental health teams to outright commitment have become common in urban policing (see, for example, “Red Flag at Half Mast I”). However, mental-health interventions remain rare in Federal practice. Unless the Feds change their ways, or the courts start questioning the deplorable outcomes, “rope-a-dope” cases against wannabe Jihadists are likely to continue.

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     Here’s something else to ponder. Could it be that Daoud’s sentencing is being driven by something other than the “law”? Sharon Johnson Coleman, the sentencing judge, was appointed in 2010 by President Barack Obama, he of the “Blue” persuasion. On the other hand, the appellate jurists: Kenneth Francis Ripple, Michael Brian Brennan, and Amy Joan St. Eve, were selected by Presidents of the “Red” persuasion (Reagan, Trump and Bush, respectively.) Might their clashing views about Daoud’s culpability reflect the ideological split that besets American jurisprudence and seemingly everything else?

     We’re just sayin’…

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Taking Missiles From Strangers     Preventing Mass Murder     Red Flag at Half Mast I

A Stitch in Time     Taking Bombs From Strangers     The Men Who Talked Too Much

If You Can’t Find a Terrorist, Make One!

TAKING MISSILES FROM STRANGERS

One wannabe heads to prison. Another waits his turn. Should we be relieved?

     For Police Issues by Julius (Jay) Wachtel. Prompted by the horrors of 9/11, the FBI’s approach to domestic Jihadists turned decidedly proactive. Undercover agents began staging elaborate “reverse stings,” offering advice, moral support and even make-believe bombs to gullible would-be terrorists. That strategy proved quite successful. So much so, that we prognosticated nearly a decade ago that wannabes would soon cease “taking bombs from strangers.”

     Well, we’re still waiting. In the meantime, Georgia resident Hasher Jallal Taheb, 23, upped the game by – yes! – accepting a missile (actually, an AT-4 anti-tank weapon, which fires a small rocket.) He’s been locked up since January 16, 2019, the fateful day when he and the stoolie who lured him into the FBI’s web met up with undercover agents driving a semi. Taheb was there to trade in his car for a load that included everything from rifles to the tank killer. Instead, once he said and did enough to meet the requirements of 18 U.S.C. Section 844 (f), “attempting to destroy, by fire or an explosive, a building owned by or leased to the United States,” badges flashed. Game over!

Click here for the complete collection of terrorism essays

     Taheb pled guilty a few days ago. His intentions had certainly been grandiose. For one thing, that “building” he wished to blow up was…The White House! Given its setback and such, it’s why he wanted a missile. Taheb had also blabbed about other worthy targets, including the Statute of Liberty, the Washington Monument, and the Lincoln Memorial. And as if to torment your writer, he had even set his sights on a synagogue!

     According to the FBI affidavit, Taheb first came to its attention in March 2018 when a citizen tipped agents about a local youth who was looking to sell his truck “to fund a trip to Islamic State territory” and join the Jihad. Taheb was soon contacted by an FBI informer, who in turn brought in an undercover agent. Taheb’s new “buds” promptly agreed to participate – natch, under his command – in an elaborate scheme to destroy the West Wing of the White House. Only problem is, Taheb, who had authored a 40-page long “justification for creating and leading his group to conduct violent attacks,” had never as much as fired a gun (but he did say he “could learn easily”). No problem! His recruits eagerly offered to get everything necessary, from guns and explosives to, of course, the “missile.”

     There’s a lot more in the affidavit. Its content and tone left your writer, whose Federal career included a considerable amount of (non-terrorist) undercover work, with very mixed feelings. Taheb, a high-school grad with an $8.15 an hour gig at a car wash, was living with his mom. He had no criminal record and was not affiliated with any radical groups. Lacking a passport, he couldn’t travel overseas. While his vision was definitely nasty and he talked a big game, he really seemed a prime candidate for being led by the nose by wily operators.

     That, indeed, is exactly what his Federal public defenders thought. Here’s an extract from their motion to have him confined at home pending trial:

He is not a danger to the community…He does not have the ability to do any of this. This grandiose plan, this fantastical plan, could not be farther from reality…the government took somebody who was talking and expanded him...[agents] ingratiated themselves into Mr. Taheb’s life to lead him down that path.

On the one hand, the U.S. Magistrate agreed that the would-be terrorist seemed hopelessly naïve. But perhaps that added to the risk: “He’s extremely gullible and susceptible to fantastical plans which make him a danger…Or he’s a mastermind of what could have been a very devastating situation.” So Taheb went to jail.

     Taheb’s sentencing is set for June. Pandemic or not, now that he’s (proudly?) admitted guilt he’s likely to draw a very, very long term. Why do we think so? Consider what happened to his virtual clone only last month. On March 4, Robert Lorenzo Hester Jr., another convert to Islam, got twenty years with no parole after pleading guilty to attempting to provide material support to ISIS, a Federally-designated terrorist organization, in violation of 18 U.S.C. 2339B.

     According to the FBI’s affidavit, the 28-year old Missouri resident drew their attention through his posts on social media that extolled ISIS and endorsed violence against the U.S. When contacted online by FBI undercover agents, the one-time Army soldier (he had washed out in less than a year) offered to help attack a military base. He also identified other potential targets, including “oil production”, “federal places,” “government officials” and, of course, “Wall Street.”

     Hester soon met up with his new buds. In contrast to Taheb, whose scheme they joined, the wily Feds welcomed Hester into their plot, which was (of course) inherently make-believe. And since an “attempt” requires more than talk, the agents asked their eager recruit to help out in a tangible way. He enthusiastically agreed. Hester was shown various items to be used in the attack, including three machine guns, two handguns and two pipes for the “bombs.” At the undercover’s request he obtained various items including boxes of roofing nails, which he was told would be placed in the bombs to maximize casualties.

     To be sure, giving terrorists nails and such is a bad thing. And unlike Taheb, Hester had displayed a violent side. He had recently pled guilty in local court to a felony after smashing in a store window, then threatening employees with a bag that contained a handgun. (Hester had been arguing with his wife.) He otherwise seemed a non-entity. One could easily conclude, as did a writer for The Intercept, that yet another “terrorist” had been led by the nose:

News reports breathlessly echoed the government’s depiction of Hester as a foiled would-be terrorist. But the only contact Hester had with ISIS was with the two undercover agents who suggested to him that they had connections with the group. The agents, who were in contact with him for five months, provided him with money and rides home from work as he dealt with the personal fallout of an unrelated arrest stemming from an altercation at a local grocery store.

Hester’s susceptibility to the agents’ blandishments was echoed by the Federal public defender, who argued that the accused had been feeling “emotionally betrayed by the Army” and struggling “to handle the humiliation he received in his home community for 'flunking out' of the military”:

Throughout all of his struggles, Robert Hester desperately wanted to feel accepted and to do something that would make someone proud of him. In an effort to fit in, he searched online to learn how to be a good, new Muslim. Robert Hester quickly ran into targeted propaganda that was aimed directly at young, disaffected men like himself.

     Well, he’s now got two decades in which to turn himself around.

     Prior posts about FBI counterterror casework (see “Related Posts,” below) have discussed a number of Taheb/Hester-like stings. If our tone in those pieces seems somewhat skeptical, it hardly approaches the tenor of The Intercept’s conclusion “that the FBI isn’t always nabbing would-be terrorists so much as setting up mentally ill or economically desperate people to commit crimes they could never have accomplished on their own.” That point of view seems consistent with the findings of a report by Human Rights Watch that severely criticized the FBI’s pursuit of “particularly vulnerable individuals” through investigations where “the government—often acting through informants—is actively involved in developing the plot, persuading and sometimes pressuring the target to participate, and providing the resources to carry it out.”

     Still, Taheb and Hester aside, a real threat does exist. Thirteen domestic mass murders have been attributed to Islamic extremism since 9/11. Perhaps the most notorious was the Orlando nightclub massacre of 2016 in which Omar Mateen shot and killed forty-nine patrons and wounded several dozen others. Curiously, it turns out that Mateen’s father was once an FBI terrorism informant and agents had considered using his son as well.

     One can understand why terrorism leads aren’t ignored. Still, the enthusiastic pursuit of wannabees suggests that there may be other reasons at hand. Such as productivity. As America’s lead counterterror agency, the heat’s been on for the FBI to show results. Here’s a brief clip from former Director Mueller’s extensive 2006 exposition about the Bureau’s goals:

After the September 11 attacks on America, the FBI priorities shifted dramatically. Our top priority became the prevention of another terrorist attack. Today, our top three priorities—counterterrorism, counterintelligence, and cyber security—are all national-security related. To that end, we have made a number of changes in the Bureau, both in structure and in the way we do business.

     Unlike their colleagues who investigate bank robbers and fraudsters, FBI agents working terrorism lack a built-in fountain of casework. So should they come across a promising character such as Taheb or Hester – well, why not? To be sure, demonstrating that someone took a “substantial step towards actually committing the crime,” what “attempt” really means, may require that agents devise elaborate scripts that capitalize on targets’ naiveté. We’re certain that not every terror suspect has fallen for such a ruse, but alas, the FBI hasn’t yet published a list of failures to conscript.

     Turning one’s nose up at wannabes may be difficult for another reason. Civil commitment “is by tradition a state purview, with little role for the president or federal government.” As your writer knows from past experience, trying to maneuver a Federal criminal “client” into the state mental health system can be an exercise in frustration. Even if a Fed is convinced that a target is mentally ill, there may be realistically no place to begin outside the criminal process.

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     That’s not to say, of course, that one couldn’t create a Federal/State interface for this purpose. Nothing prohibits the FBI and local police from collaboratively funneling characters such as Taheb or Hester through the same tedious channels that cops occasionally use for out-and-out psychos. Whether that could prove effective is hard to say. To be sure, it would produce neither criminal casework nor headlines.

     Your writer and his colleagues took pride in their ability to intercept existing plots. They met undercover with machinegun peddlers and scoured the streets for characters who hawked guns to criminals. They didn’t write and perform elaborate scripts to get naïve, twisted wannabes such as Taheb and Hester to do the right (meaning, wrong) thing. Doing so goes against the grain of the undercover craft. And even if it doesn’t amount to illegal entrapment, it feels morally wrong.

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Was a Dope Roped?     Notching a “Win”     Written, Produced and Directed

They Didn’t Read Police Issues     Taking Bombs From Strangers     Rope-a-Dope      Damned if They Do

Terrorists (I) (II)

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