Here's the segment during last night's O'Reilly Factor, where Judge Andrew Napolitano and Bill O'Reilly had a spirited conversation, to say the least, about the legality of the Portland Christmas Tree Terrorist Sting:
I must first put this caveat out there before I talk about this: I'm not a lawyer, and I might be wrong. However, I do have a lot of knowledge about the law. So, I am pretty confident that I am right about this issue.
While he is right about some things, Judge Napolitano is wrong about a few things that he talked about because he completely ignored part of the case surrounding this attempted terrorist attack.
He is right that we can't arrest, much less convict, based on thought or desire alone. However, he doesn't mention or forgets that Mohamed Osman Mohamud doesn't stop at thought or desire.
He figuratively pulled the trigger that was supposed to kill hundreds, if not thousands at Pioneer Square. He didn't know that the bomb was a fake. Police have been running stings like this for decades, and the courts have held them up consistently.
The judge argued that because the bomb was a fake the would-be terrorist can't be charged with attempting to set off a WMD, when no one was in any actual danger. That is wrong.
Let me use a couple of examples here to prove my point. For example, if a man approaches an undercover that he believes is a hitman and gives the cop money to kill his wife, he is guilty. The undercover doesn't actually have to take a shot at his wife to make the charge stick.
Here's another example. if a man approaches an undercover and offers the cop to sleep with him/her for $100, then, he is guilty of soliciting a prostitute. The cop doesn't actually have to have sex with the potential john, in order to make the charge hold water.
If there is an overt act, then, it turns thought and desire into action and commission. Therefore, he would be able to be prosecuted under the law.
On the other hand, he is right that the FBI can't be the aggressors in this sting. From what has been released, they asked him many times whether or not he wanted to go through with it because many people would die, and every time, he adamantly said yes. It doesn't sound like he had to be persuaded any from what I've read.
However, not all of the tapes and evidence has been released, yet. So, we won't know the full extent of evidence against the 19-year old Somalia-born young man or how much the agents did or did not push him to commit the act.
It all depends on how they approached him about this plot to begin with and who was the one that aggressively pursued this venture. We shall have to see.
Here's another hole in his argument. He said that the fact that the agents committed a crime, while setting off a real bomb during a test-run in the middle-of-nowhere, and the fact that they strung this along for 18 months is over the line, too. That is, also, wrong.
Local police and feds have sent in cops to go undercover for months and even years at a time before, in order to take down organized crime like drug cartels or the mafia, and while they were undercover, they had to commit some lesser crimes in order to get in with the big fish that they were trying to take down to trust them and let them in the fold enough to get concrete evidence against them. The courts have consistently said that this was ok. What is it about trying to take down the mob that is any different than trying to take down a terrorist cell? There's not. It is just another form of organized crime.
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