Entrapment

Is one possible defense the lawyers for those homegrown terrorists may raise as a defense. The Miami Herald's Scott Hiaasen writes about just that.

Even with expanded legal powers after 9/11, federal agents relied on a familiar formula to snare the seven men accused of plotting a terrorist attack on Chicago's Sears Tower from a warehouse in Liberty City.

The defense claims raised by lawyers for the men will likely include equally familiar claims of entrapment and government overreaching.

In many respects, the Liberty City case resembles other recent terrorism cases from Hollywood to New York to California: An informant infiltrates a group of anti-American zealots and records -- or even encourages -- their violent plans.

The seven men -- Narseal Batiste, Patrick Abraham, Stanley Phanor, Naudimar Herrera, Burson Augustin, Lyglenson Lemorin, and Rotschild Augustine -- have been charged with conspiring to support al Qaeda. But the closest the group got to Osama bin Laden was an FBI informant posing as an ``al Qaeda representative.''

The indictment documents several meetings between Batiste, the group's 32-year-old suspected ringleader, and the informant. The men discuss potential terrorism targets, including FBI offices in five cities, and list needed supplies, including machine guns, bulletproof vests and combat boots, the indictment said.

Perhaps just as damaging is that all seven men swore an oath of loyalty to al Qaeda, the indictment says.

But the indictment also suggests that the men were nowhere near executing their plans.

The defendants had no guns or other weapons when they were arrested last week. The informant did provide some boots and a camera for the suspects to photograph a North Miami Beach FBI office and other local targets, the indictment says.

But it's unclear from the indictment whether the alleged conspirators actually visited their most ambitious target, the 110-story Sears Tower in Chicago.

These factors have led some to question whether the government went too far in its prosecution and has entrapped the men by manufacturing the crime for them.

''I don't think anyone seriously believes that these were real terrorists. We used to have agents and confidential informants creating drug deals in Liberty City. Now it looks like they are creating homegrown cells,'' said David O. Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers.

Government officials, including U.S. Attorney General Alberto Gonzales, said they moved swiftly to make sure the plan became no more than that.

Said Gonzalez on Friday: ``I think it's dangerous for us to try to make an evaluation, case by case, as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group. We look at the facts in every particular case. And we felt that the combination of the planning and the overt acts taken were sufficient to support this prosecution.''

If lawyers for the seven men raise entrapment as a defense -- the lawyers either declined to comment or could not be reached on Friday -- it could be a difficult argument for a jury to accept. Last month, a New York City jury rejected an entrapment defense in a terrorism prosecution based on a plan to bomb a subway -- a case built with the help of a paid informant.

The critical evidence in the Liberty City case, lawyers say, will be the tape-recorded conversations between the informant and the defendants.

If it appears the informant is driving the plot more than the defendants, it could give weight to an entrapment defense, said attorney Philip Horowitz, who represented a Broward County terrorism defendant four years ago.

''Once you actually hear the tapes, I can guarantee you the informants were doing a lot more than merely listening,'' Horowitz said.

The lawyers could also try to convince the jury that the plotters were incapable of pulling off the plan without the informant's help.

But to prove entrapment, defense lawyers must show that the suspects had ''no predisposition'' to commit the crimes before they were coaxed by police, said defense lawyer Milton Hirsch. That's very hard to prove, he said.

Jurors and judges usually accept some amount of encouragement of the defendants by the informants in terrorism cases -- but this can still affect how these cases are resolved.

When 19-year-old Imran Mandhai appealed his 11-year sentence for plotting to blow up power plants and other targets in Miami-Dade and Broward, the appeals court noted that an informant ''challenged'' Mandhai when he seemed to get cold feet.

The court said a sentence below the guidelines was not inappropriate for Mandhai in part because of how the informants behaved.

''Every time Mandhai, the only teenager involved, had second thoughts, [the two informants], both seasoned adults, kept the conspiracy on track,'' the court said.

Mandhai's 2002 case mirrors the Liberty City case in many ways: Investigators detailed discussions of terrorist plans while documenting few steps toward making those plans come true. Mandhai pleaded guilty to conspiracy, as did a co-defendant, Shueyb Mossa Jokhan.

In another similar case, a Boca Raton doctor, Rafiq Abdus Sabir, is awaiting trial in New York after he was indicted for planning to offer medical aid to Middle East terrorists.

Sabir is accused of swearing an oath to Bin Laden -- to an FBI agent posing as an al Qaeda recruiter.

Hirsch said defense lawyers could attack the Liberty City indictment as a conspiracy closer to fantasy than reality, portraying the defendants as ''terrorists in their own minds'' and far from dangerous.

But under conspiracy and anti-terrorism laws, it doesn't matter if a plot is imminent or not.

In 2004, the 11th U.S. Circuit Court of Appeals refused to reduce Mandhai's sentence because his plots were so far from being completed. Mandhai's sentence had been enhanced under anti-terrorism statutes.

I don't think the FBI or anyone can make someone want to commits acts of terror. The seed has to already be in the person's mind.

To me entrapment may be the best defense, but that's because the defense will be desperate for anything. If the government case is strong, these men are going to do serious jail time. A plea I don't think appears likely either based on past record of prosecuting terrorism cases.

Hat tip- Don Surber who reminds us of how the FBI used the same tactics to infiltrate the KKK in the 60's. I also think Don is right about where Mr. Hiassen's own sympathies lay. He doesn't quote one person(If you don't count the AG) who argues the govt. may have a case against these men. Instead Hiassen quotes three in favor of their defense.

Open Post- Is it just me?, Stop the ACLU, Bullwinkle Blog,