The fundamental flaw at the heart of the Mohammed Muhammed case

By Edward Hershey of Portland, Oregon. Hershey has spent 50 years as a communicator with stints in journalism, government, education and labor, most recently as SEIU Local 503's communications director. As a reporter, he covered portions of the Black Panther trials for Newsday. Learn more at EdwardHershey.com. Previously, he contributed "One theory as to why the Oregonian won't endorse a candidate in the presidential race".

Residents of New York City arose one April morning in 1969 to reports that 22 members and sympathizers of the Black Panther Party had been indicted for plotting to blow up police stations, department stores, commuter rail lines and other public facilities. Most had been arrested overnight.

The real news came 25 months later. In the culmination of a protracted trial that was almost a precursor to the more famous Chicago 7 case in terms of courtroom histrionics, jury deliberated just three hours before acquitting all 13 defendants the government eventually prosecuted — even two tried in absentia after fleeing the country — on a total of 156 charges.

One juror expressed sympathy for government informants and agents provocateur who had goaded, shamed, flattered, coaxed and cajoled the accused into advancing a nonexistent plot —“They were just doing their job where society put them,“ he told Edith Evans Asbury of the New York Times — but said their work did not add up to a case. “There just wasn’t enough evidence,” said another.

The government’s real mission in the Panther case, adroitly exposed by the late journalist Murray Kempton in his book “The Briar Patch,” was to engender public appreciation of what a grave threat the Black Panthers and similarly militant organizations presented. And that made the jurors’ swift response a statement verdict, speaking with eloquent finality for a public that government investigators and prosecutors had presumed to protect.

Now, depending on how things play out, 12 Oregonians may be positioned to play a similar role when People v. Mohamed Osman Mohamud (the “Christmas Tree Bomber" case to headline writers) reaches trial in federal court in Portland next year.

Based on the solid work of Oregonian reporter Bryan Denson as well as breakthrough reporting by Mother Jones magazine in collaboration with the Investigative Reporting Program at the University of California last year, the prosecution of young Mr. Mohamud may make the Black Panther prosecution and other trumped-up cases of the J. Edgar Hoover era seem benign.

The federal government spends huge amounts of time and sums of money on anti-terrorism probes each year, an investment that certainly seems prudent given the real threats Americans face here and abroad. But a closer look at this work makes much of it seem more like the witch-hunting of Hoover’s FBI than a genuine and well-intentioned effort to stop terrorists in their tracks. And the Mohamud prosecution is a case in point.

The team from Mother Jones sorted through a year’s worth of Justice Department files on domestic terrorism investigations— 508 of them — and could not find one that disrupted an actual conspiracy. They were all undercover operations, half of them deploying informants as well as federal agents. These informants can be concerned citizens (such as Mohamud’s worried father, who reported his teen-aged son’s jihadist rhetoric to the FBI), but much more often they do it for the money or as part of a deal to make unrelated cases against them go away.

The feds seem so self-conscious of criticism of these pseudo-terrorist arrests that when two Pakistani brothers were indicted for allegedly providing support to terrorists and conspiring to use a weapon of mass destruction in Florida Thursday, a government spokesman took pains to say it was not the result of a sting. The press, obviously dubious, gave the arrest scant attention, which is to be expected when you cry wolf 500 times in a row.

Why does the government devote so much time and many to developing and prosecuting such concocted cases? Skeptics have had little trouble figuring that out.

First, such widely publicized prosecutions reassure the public and justify continuing post-9/11 measures that reduce civil liberties protections. (Was it coincidental that the Mohamud case emerged just as the feds sought to convince the Portland City Council to reconsider its objections to allowed the city police bureau to join an anti-terrorism task force?)

Second, even if they don’t stop real terrorist acts, such cases almost always count for wins on the prosecutorial scorecard. Most defendants cop a deal before trial. That’s because of what prosecutors have — hour upon hour of secret recordings carefully guided by seasoned agents ready to testify in court — and what they often conveniently lack — any exculpatory material to share with the defense. “In many sting cases,” Mother Jones noted, “key encounters between the informant and the target were not recorded—making it hard for defendants claiming entrapment to prove their case.”

In that respect, People v. Mohamed Osman Mohamud is no different. As Denson has reported, Oregon Federal Public Defender Steven Wax and his team are trying to make U. S. Attorney Amanda Marshall’s office account for such lapses in pre-trial procedural skirmishes that also touch on the government’s efforts to keep other material from the defense on national security grounds.

But this case has the potential to be very different as well and that starts with Wax, a tenacious litigator who made such a name for himself eight years ago in the infamous Brandon Mayfield case that he was vetted for a federal judgeship — an almost unheard-of accolade for someone in his position. Mohamud is one screwed-up kid who may not deserve it, but he has lucked into just about the best defense attorney money can’t buy.

Wax’s latest skirmish with his counterparts focuses on their efforts to import as a purported expert witness against his client a 33-year-old entrepreneur from New York City who is paid $400/hour plus expenses to help the feds bolster such cases. This week in court he told Judge Garr King that his examination of the files on Mohamud’s computer has convinced him the defendant was more than just a wannabe. Right.

“You come back, you come back, you come back,” Wax told the Oregonian last year explaining his philosophy for trying to get impoverished and unpopular clients a fair shake in court. "You figure out another way, take another run, try another approach, see if you can find someone else. You can always do more.”

That’s the first difference. Wax is very good. The second has to do with place. Not that a jury will necessarily be friendly to the defense. We can expect prosecutors to try to exclude any open-minded individuals, let alone progressive thinkers, and seat jurors from suburban and exurban sinecures. (They should be easy enough for Marshall to spot. She started in Coquille, earned her prosecutorial stripes in Coos Bay and lives in McMinnville.)

Still, this is Portland. If the federal government is to finally get its comeuppance for spending millions upon millions of tax dollars to find vulnerable targets like Mohamud, play them for all their worth and then announce with great fanfare that some big terrorist attack has been averted, where better than Portland for it to happen? And what an important and necessary statement that would make.