Case against alleged ISIL recruits raises question of entrapment

A hearing Tuesday revealed new details about how attorneys intend to defend six Minneapolis men accused of trying to join overseas militants.

At the Minneapolis hearing, during which U.S. District Judge Michael Davis ruled to keep the imprisoned men in custody, the prosecution said the government has laid out compelling evidence against the men. Defense attorneys countered that the government's case was thin and relied too much on a paid informant with questionable credibility.

In the crowded courtroom — and at recent community gatherings around the Twin Cities — defense lawyers and Somali community supporters have wondered if the informant entrapped the men in an alleged attempt to leave the country in April. The four of them who backed out of that trip did little more than "think bad things," as one attorney put it.

Such issues have haunted federal terrorism-related cases across the country and drawn criticism from groups like Human Rights Watch. But arguments of entrapment don't often gain traction in court, say legal experts. And the government still faces hurdles in cases that — heavy on intent, light on violent action — can seem abstract to juries.

"You have a challenge to make the jury understand that just because the person doesn't pick up a rifle doesn't mean they are not guilty of the offense," said Anders Folk, a former assistant U.S. attorney.

The six men — Mohamed and Adnan Farah, Abdirahman Daud, Guled Omar, Hanad Musse and Zacharia Abdurahman — face charges of conspiring to provide material support to the Islamic State in Iraq and the Levant, or ISIL, a designated terrorist group.

A 38-page federal complaint spells out the government's case against the men: At airports in Minneapolis and New York back in November, the FBI stopped five of them from boarding flights to Europe or California. Agents questioned the men's plans, noting some had bought last-minute tickets for stays in Europe as short as a couple of days. They believed the men were really headed to Syria to join ISIL.

Four of the men ultimately decided not to go, although some suggested they would make other plans to leave the country. Authorities arrested two of the men in San Diego on April 19 and the remaining four in Minneapolis.

The role of the informant, who was paid about $12,400, has riled up some in the Somali community. They have portrayed the defendants as a group of young college students led on by a community insider they trusted.

Meanwhile, defense attorneys have argued the government's case rests squarely on the collaboration of the informant who once had his own plans to leave the country and lied to the FBI under oath. They said the government cobbled together the case from vague plans, youthful chatter and social media posts — potentially First Amendment-protected activities that don't add up to a crime.

At Tuesday's hearing in front of Judge Michael Davis, Paul Engh, the attorney for Adnan Farah, said the government presented "a thin case." Yes, his client posted Facebook images that could be considered jihadist propaganda. But he stayed put in November and again in April, and he has never committed a violent act.

"He may have talked the talk, but he didn't walk the walk," Engh said.

Government attorney John Docherty disputed the idea the defendants didn't take action as part of the alleged conspiracy. They participated in meetings to plan the April trip to California, meetings captured on tape by the informant. They provided photos and down payments for fake passports. Docherty took exception to an attorney's suggestion that the informant "recruited" defendants for the trip; they'd hatched the plan before he offered to help.

U.S. Attorney Andy Luger also pushed back against criticism of the case at a Saturday meeting with Somali community members. He said undercover informants and recordings of private conversations are key tools in federal cases — techniques defense attorneys aggressively challenge in open court.

"We don't entrap people," Luger said. "If we did that, we would be exposed."

Twin Cities attorney Larry Leventhal says informants should be subject to intense scrutiny. After all, between avoiding criminal charges and benefits they can reap, informants have strong incentives to deliver for the government.

"In this case, not only is the informant allowed to walk away from lying to the FBI, but he received a sizable sum of money," said Leventhal. "This is fairly dangerous terrain."

Showing that the informant or an undercover agent pitched the plan and helped roll it out doesn't cut it if the government can show the defendant was "predisposed" to the crime, said former U.S. attorney for Minnesota Tom Heffelfinger: "Entrapment will be a tougher sell in this case because these guys had previously made plans to leave the country."

The government will also likely try to marshal evidence to back up input from the informant. Take the account of a May 2014 road trip to California that Omar tried to take before family members stopped him. The FBI only learned of the trip from the informant months after the fact. But agents pulled records showing Omar had drained his bank accounts and stopped showing up for work — evidence the government might use to argue he wasn't planning to come back.

Still-unanswered questions could affect the informant's credibility: For instance, did he have "a change of heart" that led him to offer his help to the FBI, as Luger suggested when announcing the charges? Or did the FBI induce cooperation by dangling possible charges against him?

It's also unclear why the government filed conspiracy charges back in February against a man named Hamza Ahmed, who traveled with some of the defendants to New York in November — but held off on charging the rest until the confidential informant got involved.

Ted Sampsell-Jones, a criminal law professor at William Mitchell, said the broad legal concept of "conspiracy" can be a powerful tool for the government. It only has to show that defendants committed to a plan of action together — and at least one of them took some steps to put that plan into motion. On the flip side, defense attorneys have to show clients took decisive steps to forswear a conspiracy. If the defendants in this case told the informant they planned to travel later — even if only to save face — that could be a problem.

"As a prosecutor," he said, "you have to think creatively to overcome these challenges."