Bob S., here's my reply. Lawyers, take note: it's what you dread to hear when you cross-examine.
Our security forces do not understand middle class rebellion. 19-year-old Mohamad Mohamud, Portland's Christmas Tree bomber, is only the latest in a long line of rebels who made manifest that elementary fact.
Apparently convinced that Mohamud was determined to commit mayhem come what may, the FBI wrote him off. Result: the option of talking him out of it was never seriously considered. 30 years ago, the tagline of the TV show Hawaii Five-O summarily captured the G-men's mindset: "Book 'em, Danno. Murder One."
Let's assume not that the FBI agents were wrong but that they were right about Mohamud's fire in the belly. My observation: what they say bothered them the most, the extreme nature of his commitment, is precisely what holds the key. In middle class rebellion, any extreme is always accompanied by the opposite extreme. The latter is most often latent, hence not readily apparent. Nevertheless, it is there.
The typical fervor of the middle class rebel -- the criminal complaint states that after he was arrested, "Mohamud yelled 'Allahu Akhbar' and began violently kicking the agents and officer in the transport vehicle and had to be restrained." -- makes what follows exceptionally difficult to believe. Inside every middle class rebel is a bureaucrat in search of a bureaucracy. That fact is counterintuitive -- almost as much as the fact that right now the earth is traveling 67,000 mph around the sun. However, the proof is in the pudding. Case after case over many decades and in different cultures show that middle class rebels tend to end up as craven conformists. When they come home, they land hard.
The prior post on this blog notes that, instead of viewing Mohamud's extreme determination as an opportunity, "the FBI agents at best gave in to it, at worse furthered it for their own purposes."
Bob S., you ask what I meant by their own purposes.
I'll pass over the superficial ones, e.g., rave revues in the media, a fatter agency budget, and putting a feather in one's career cap.
The primary purpose was legal. The FBI wanted to avoid being found guilty of entrapment.
Entrapment occurs when authorities induce somebody to commit a crime he was not previously disposed to commit. Previously disposed: there's the telltale heart. Fanaticism, determination, resolve, enthusiasm -- call it what you will -- on Mohamud's part capsizes any entrapment case against his captors. Their own legal defense explains why, rather than try to modify Mohamud's resolve to maim and kill, the FBI agents let it run its course. I will return to this point.
Its self-avowed actions in the Mohamud sting operation put the FBI in choppy legal waters. Not to worry, though -- been there, done that. The FBI has navigated those treacherous straits many times and survived, but that doesn't make them any less treacherous …
It is a crime to aid and abet, that is, to help somebody commit a crime either by an overt act or by offering advice and encouragement. Aid/abet is not the same crime as entrapment; for one thing, the latter presupposes the involvement of authorities. So, is the FBI guilty of aiding and abetting Mohamud? No. According to Federal Courts, to aid and abet, a person must "knowingly associate himself with the criminal venture, participate in it, and try to make it succeed." (My emphasis.) In furnishing a fake bomb, the FBI does not meet the last requirement.
If the charge of aiding and abetting Mohamud arises, I bet the FBI will win. However, if the FBI did not violate the law itself, it is hard to read the criminal complaint and not conclude that the FBI violated the spirit of the law.
Over 200 years ago, Montesquieu posed this remarkable question: can the law violate itself? (De L'Esprit des lois, Book XII, Chapter XIV.) I think so. In particular, if the law directly or indirectly discourages law enforcement officials from helping a person to not commit a crime, e.g., talking Mohamud out of bombing the Christmas tree celebration, then clearly the law needs to be changed.
I worked with legislative leaders for seven years. Many times, I saw laws written to be evaded. When Mohamud's trial starts, look out. Long ago, we set sail from the good ol' boy port of honest graft, and now are adrift on a sea of illegal laws, of legal crimes. Dangerous waters, indeed.
Hence, Bob, my answer. Yes, but. Yes, the FBI will go free. But what about the rest of us?