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COPYRIGHT 2005 Georgetown University Law Center
I. CONSPIRACIES AND TERRORISM
A. World Trade Center I and the Embassy Bombings B. Defining the Terrorist Conspiracy C. Investigating and Intervening in the Conspiracy II. MATERIAL SUPPORT PROSECUTIONS A. Treason and Related Offenses 1. Trading with the Enemy 2. Treason and Political Freedom 3. The Communist Conspiracy and the Right of Association B. Designated Terrorist Organizations and the Right of Association 1. Prohibiting Material Support 2. Vagueness of "Training" and "Personnel" 3. The Designation Process 4. Mens Rea of Material Support 5. Conclusions on Material Support III. How IMMINENT IS IMMINENT? CONCLUSION
Ali al-Timimi was convicted in June 2005 of crimes that essentially amounted to inducing others to conspire to aid the Taliban. (1) He was a lecturer at an Islamic Center in Falls Church, Virginia, teaching about Islam, its history and culture. The specifics by which he induced others to engage in criminal conspiracies consisted primarily of (1) a meeting at another person's house on September 16, 2001, at which he "told [others] that the time had come for them to go abroad to join the mujahideen engaged in violent jihad in Afghanistan" and at which he "advised" two persons "how to reach [a] training camp undetected" (2) and (2) a session at his own home in October of 2001 at which he "told ... others that they were obligated to help the Taliban in the face of an attack by the United States." In addition, he used highly inflammatory language in speaking to his followers about the wrongdoing of the United States. (3) These overt acts were taken in the context of his knowledge that some of his audience owned assault-type weapons and were seriously considering going to paramilitary training camps in Pakistan to train as mujahideen fighters in Islamist organizations.
In the culture clash between religious fundamentalism and the rest of the world, (4) al-Timimi is on the wrong side. His words certainly encouraged young Muslim men to violence and contributed to the atmosphere of hate and fear that permeates religious fundamentalist paranoia. (5) But by human rights standards consistent with liberal values, did he commit a crime? Western liberalism has struggled for centuries with trying to forestall violent or other harmful conduct while permitting maximum play of individual freedom. This tension has played out in two areas of Anglo-American law related to inchoate crime: the limits of conspiracy law and protection for advocacy as part of freedom of expression.
Conspiracy law has not been overtly tied to freedom of expression, but the requirement of both an agreement and an "overt act" serves to prevent punishment of desires that fall short of a live threat. (6) Even when an agreement alone would constitute a crime, the watchword for U.S. law with regard to when advocacy can be punished has been "imminent," reflecting how close the advocacy must be to producing a substantive harm. (7) That word is now matched in the customary international law of international criminal tribunals in defining the crime of "incitement to prohibited conduct." (8)
Counter-terrorism prosecutions in the United States take place primarily under conspiracy theories and statutes specifically directed at "material support" of terrorism or terrorist organizations. This Article explores the question of how close those prosecutions are coming to the forbidden line of intrusion on individual freedom. The ultimate issue is the extent to which Western liberal values of freedom can be preserved while engaging in a culture clash that itself threatens those very values.
I. CONSPIRACIES AND TERRORISM
A. World Trade Center I and the Embassy Bombings
Al Qaeda took center stage in U.S. terrorism concerns almost a decade before 9/11. The first bombing of the World Trade Center, carried out by a group in Brooklyn loosely affiliated with the mujahideen of Afghanistan, occurred in February 1993, and bombings of the U.S. embassies in Kenya and Tanzania occurred on August 7, 1998. (9)
World Trade Center I resulted in two separate prosecutions. The four defendants in the first case were tried for various levels of involvement in a conspiracy to "bomb structures used in interstate commerce" and related charges. (10) Sheikh Abdel Rahman and a number of others were then prosecuted for somewhat more peripheral connections to this incident and for a more broad-reaching charge of "seditious conspiracy" consisting of "waging war against the United States." (11)
Conspiracy cases consistently refer to the concept of vicarious liability known as the Pinkerton doctrine. Pinkerton v. United States established several concepts regarding the law of conspiracy. (12) One of the most important is the concept that a person may be convicted of conspiracy without knowing the details of what others are planning to do. Agreement to commit a category of offense may produce liability for all members of the conspiracy when any one of the members commits an overt act of the type contemplated. "An overt act of one partner may be the act of all without any new agreement specifically directed to that act." (13)
Pinkerton also confirmed that conspiracy is an offense separate and apart from the "substantive" crimes contemplated. Thus, there is no double jeopardy involved in prosecution for the agreement as well as for the criminal act. Thirdly, Pinkerton established that conspiracy is an inchoate offense that is punishable even if no physical harm to a victim ever results:
For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered. (14)
Two appellate decisions arising from the first World Trade Center bombing illustrate some of the issues of conspiracy prosecutions. United States v. Salameh (15) involved four of the six "active" participants in World Trade Center I. The trial took nine months, during which a complex set of facts was presented to the jury. The appellate court's two-page summary alone shows how complicated the investigation of an incident of this type must be. The plot also shows how even careless and occasionally inept terrorists can easily circumvent the security arrangements of an open society.
The alleged mastermind Yousef trained at an Afghan terrorist camp with one Ajaj. When the two flew back into the United States, Ajaj used a forged passport and carried a "terrorist kit" consisting of bomb manuals and the like. Ajaj was imprisoned but still managed to communicate with Yousef while the latter recruited and worked with the four other conspirators. (16) One person, an engineer with a chemical company, acquired materials and equipment. Another rented an apartment where the explosives were assembled. Salameh rented a van and storage facility. And the fourth acquired smokeless powder and helped assemble the explosive charge. After the bomb exploded, Yousef and two of the others fled the country. (17) Salameh had planned to flee but was arrested when he went back to the rental agency to attempt to obtain a refund of the rental deposit on the van that was blown up in the explosion, a "ludicrous mistake" in the words of the appellate court. (18)
This was the straightforward part of the case. All the prosecution had to show was participation by each of the four defendants in the assembling of the explosive device. Given that there could have been no lawful purpose for such a device, any defendant who participated would have had a difficult time convincing the jury that he was not guilty of at least conspiring to commit an illegal act. With respect to at least one of the conspirators, the appellate court pointed out that it was not necessary to show that he knew what building was to be bombed. "To convict a defendant on a conspiracy charge, the government must prove that the defendant agreed to the 'essential nature of the plan' ... and on the 'kind of criminal conduct ... in fact contemplated." (19) The conspiracy concept thus allows some lack of specificity in knowledge on the part of a defendant who would not be deemed a principal without knowledge of what was to be targeted.
The government then brought ten additional conspirators to trial on a variety of charges that raised greater difficulties with conspiracy law. United States v. Rahman (20) involved convictions for "seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign of urban terrorism." (21) The Second Circuit described the convictions as follows:
[S]editious conspiracy (all defendants); soliciting the murder of Egyptian President Hosni Mubarak and soliciting an attack on American military installations (Rahman); conspiracy to murder Mubarak (Rahman); bombing conspiracy (all defendants found guilty except Nosair and El-Gabrowny); attempted bombing (Hampton-El, Amir, Fadil, Khallafalla, Elhassan, Saleh, and Alvarez); two counts of attempted murder and one count of murder in furtherance of a racketeering enterprise (Nosair); attempted murder of a federal officer (Nosair); three counts of use of a firearm in relation to a crime of violence (Nosair); possession of a firearm with an obliterated serial number (Nosair); facilitating the bombing conspiracy by shipping a firearm in interstate commerce and using and carrying a firearm in relation to a crime of violence (Alvarez); two counts of assault on a federal officer (El-Gabrowny); assault impeding the execution of a search warrant (El-Gabrowny); five counts of possession of a fraudulent foreign passport; and one count of possession with intent to transfer false identification documents (El-Gabrowny). (22)
Obviously, a number of rather tenuously connected behaviors are charged in this single case, which may result in evidence of wrongdoing placed before the jury that would not be admissible were it not for the allegation of an overall plan. But what was the plan? Was it simply to wreak havoc in the United States? Or was there a more specific plan involved?
Some of these actions constituted completed crimes. Others were attempts. And yet others were unfulfilled plans or schemes. The court opinion reviews the evidence of each conviction and finds it sufficient to support each verdict. Evidence of all these various offenses was introduced in a single trial because they allegedly formed part of a single plan. But again, what was the plan?
The key to the scheme here is in the conviction of all the defendants for "seditious conspiracy to levy war against the United States." El-Gabrowny was convicted of a number of offenses on his own but was acquitted of the bombing conspiracy. Meanwhile, Nosair could not be charged with many of the offenses because he was in jail for the murder of Rabbi Kahane. What linked El-Gabrowny and Nosair was the overall seditious conspiracy to "levy war against the United States," a very broad and general outline of a plan.
Sheikh Rahman's political rhetoric made the task of the government easier when he talked about 'Jihad" and sanctioned violent actions. (23) If the defendants themselves declare a wide range of activities to be part of a single plan, then who are we as judges and jurors to question their intentions? The Sheikh, however, was not publicly explicit about the scope and nature of 'Jihad" in a fashion that would define a single plan of attack. (24)
Thus, the conspiracy prosecution depended on speech normally considered protected under the First Amendment. As prevailing doctrine on advocacy and the right of association shows, (25) a defendant can cross the line from protected advocacy to criminal conspiracy with either the first overt act toward a substantive harm or if the person's words incite "imminent lawless action." But here we have a plethora of offenses charged in a single conspiracy because of statements by one member of the conspiracy. This person is the "hub" of the conspiracy while other "conspirators" constitute the "spokes" of the wheel. In the next section, we will see that the Supreme Court has required that there be some element making up the "rim" to tie all the disparate elements together. Without that, persons could be charged and convicted under a conspiracy theory for activity in which they had no role and no intention of furthering.
B. Defining the Terrorist Conspiracy
Conspiracy classically is defined as a combination of two or more persons to achieve an unlawful object or to achieve a lawful object by unlawful means. (26) In the context of terrorism, this definition immediately raises intriguing possibilities.
The most successful terrorist organizations carefully hide the "cells" from each other. For comparison, consider a normal business-style organization chart. In the classic business enterprise, members of the various departments feed information to their managers who then share it with the CEO and other managers to make the entire enterprise flow as smoothly as possible. The employees in a department will know as much or as little about the activities of employees in other departments as their managers have time or inclination to share, plus whatever information is shared in informal settings such as meetings, social occasions, or rumor mill. If an investigator, say a journalist doing a story on the company, asks questions about how an employee's work fits into the overall business plan, the employee may draw upon both fact and rumor to provide as complete a picture as possible. Typically, each employee will know at least something of the work of other departments because that knowledge feeds the "team spirit" of the company in pursuit of their common objectives.
In a clandestine operation, it becomes important that the members of each "department," usually known as "cells," know as little as possible about each other. This secrecy exists so that an investigator who manages to capture or "turn" one cell member will not thereby be able to learn much about the other cells. Anyone who has ever read a spy novel will recognize that the lieutenants (cell "managers") may even insulate themselves from the cell members by a series of "cutouts," anonymous or pseudonymous individuals who themselves know little or nothing of either the cells or the lieutenants. In a highly sophisticated operation such as the Medellin Cartel of the 1980's, only the ruling elite or inner circle will know each other. Thus, it has been important to the United States to locate the Al Qaeda leadership.
Now suppose that Cell 1 has been successful in carrying out a terrorist act, while Cells 3 and 5 attempted similar actions but did not bring them to completion. Can the members of the other cells be prosecuted for conspiracy along with the members of Cell 1 as to whose existence they had no knowledge?
In 1929, the British courts promulgated the metaphor of "wheels" and "chains" to describe two distinct types of conspiracy: "There may be one person ... round whom the rest revolve. The metaphor is the metaphor of the centre of a circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain; A communicates with B, B with C, C with D, and so on to the end of the line of conspirators." (27) In the wheel model, the question is whether each of the spokes of the wheel may be involved in a single conspiracy with each other even though they do not know each other's identity. In the chain, persons far removed from each other because of the presence of intermediaries may similarly be engaged in a single conspiracy. The element of secrecy in clandestine schemes was recognized by the U.S. Supreme Court when it declared that "the law tightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiting evidence of knowledge of all its details or the participation of others." (28)
There are limits, both constitutional and otherwise, on the application of these models. In Kotteakos v. United States, (29) the hub of the conspiracy dealt with each of the spokes separately. The Supreme Court acknowledged that the person at the hub may have thought of the entire enterprise as a single scheme, but without something more to tie the individual transactions together (a rim around the spokes), "there was no drawing of all together in a single, overall comprehensive scheme." (30)
A wheel may have spokes each of which itself is a chain (the "chain-wheel"). In United States v. Perez, (31) the defendants were involved in multiple instances of fake traffic accidents in which doctors and lawyers concocted fraudulent reports for submission to insurance companies. Each chain included several persons (one driver and a pedestrian, or two drivers and a passenger, plus a doctor, a lawyer, and a "recruiter" who set up each accident), and each chain reported back to the central organizer. The court considered that none of the participants could rationally have believed that the scheme would work unless there were others doing the same thing; otherwise, the risks would not be worth the payoff to professionals such as the doctors and lawyers. This inference of knowledge was sufficient to form a rim around the spokes to complete the wheel.
Only slightly tongue in cheek, we can now imagine bringing every gangbanger in Los Angeles to trial for "conspiracy to intimidate the population of Los Angeles and thus to interfere with their rights to use public thoroughfares." It might make us more comfortable if we had a better idea of what constitutes a single plan. Rahman is certainly correct in holding that a single plan does not have to be limited to a single act of violence. But at the other extreme, a single plan surely could not be made out by showing that the defendants were all committed to acts of violence within the United States without some link to tie those acts together. Rahman pushed the envelope by permitting a finding of a seditious conspiracy to "levy war against the United States" among a group when the individual members of that group attempted to carry out disparate acts. (32)
The key in the wheel-chain model analogy is to find a single link that ties the various acts together. In the case of a terrorist network, even if it were possible to tie all members of every cell back to a central organizer, the members of one cell should not have any knowledge about the plans or perhaps even the existence of the other cells, so they could not be charged with the acts of the other cells. If they knew in general terms that there was a coherence in which their plans were coordinated with the plans of other cells, then every conspirator could be charged with complicity in the acts of every other conspirator. There could even be instances when nobody outside the particular cell, even the linkages back along the chained spoke, knew what the members of that cell were planning. The links to other cells and back along the chained spoke to the hub may well have been broken. In this case, the conspiracy could still be charged among those who did know what was going on, but the breadth of the conspiracy may be limited.
C. Investigating and Intervening in the Conspiracy
As with many conspiracy investigations, one crucial question for law enforcement officials will be when to intervene and make arrests. Agents who have information about impending criminal acts will naturally be inclined to let the conspiracy run long enough to shore up their criminal case without letting it run long enough to permit harms to occur to innocent victims. The terrorism examples of this phenomenon can be particularly nerve-wracking because of the sudden and literally explosive nature of the plans laid during the conspiracy.
United States v. Sarkissian (33) was one of the first reported cases in which a Foreign Intelligence Surveillance Act (FISA) (34) wiretap resulted in a criminal prosecution. Sarkissian demonstrates the dilemma of conspiracy investigators, as even with the wiretap the plotters succeeded in getting dynamite on board a U.S. commercial airliner, and, in addition, the government agents came close to losing their prosecution by failing to get a search warrant at the critical moment. The case involved a plot by an Armenian group to bomb the Honorary Turkish Consulate in Philadelphia. Through a FISA-authorized wiretap on a home in Santa Monica, California, the FBI learned that the conspirators were assembling a bomb. Around 3 a.m. EDT one morning, agents concluded that the components or perhaps an assembled bomb were being flown out of Los Angeles.
Six hours later, agents concluded from flight schedules and accumulated impressions that the likely destination of the courier was Boston's Logan International Airport on a flight due at noon EDT. The court's recitation of the incident picks up here:
By 11:00 a.m. EDT fifty agents had assembled at the airport. The agents manned surveillance positions and established a search procedure that included a dog sniff and x-ray scan. After the NWO flight landed around 12:15 p.m. EDT, a Massachusetts state police officer boarded the plane and posed as a first class passenger. The officer spotted a man matching [the courier]'s description and followed him to the baggage claim area. A trained dog sniffed the fifty-seven pieces of luggage unloaded from the flight, but did not react to any of them. The agents then ran the luggage through the x-ray scanner and detected parts of a bomb in a suitcase labeled "V. Lopez." They opened the suitcase and found an unassembled bomb with five sticks of dynamite. The agents did not remove anything from the suitcase, but returned it to the baggage claim carousel. His suspicions aroused by activity around the airport, [the courier] never picked up the suitcase. The FBI arrested him several hours later. (35)
After conviction, the first issue on appeal was suppression of fruits of the search of the luggage at the airport. The Ninth Circuit determined that the danger to the public in the airport constituted "exigent circumstances" justifying a warrantless search of the luggage. The FBI agents in Boston were completely occupied with finding the dynamite and preventing violence, but the Los Angeles agents had all the information and were not so engaged in the on-the-ground action. "Although the investigation preoccupied Maples [the L.A. agent] throughout the early morning hours, after 10:00 a.m. EDT he did little but wait to 'see what happened. [He] never considered trying to get a telephonic warrant. Though we find that troubling, we affirm.'" (36)
Sarkissian presents a classic example of the difficulty of knowing when to intervene. Can government agents create "exigent circumstances" for a warrantless search merely by waiting for the conspiracy to unfold until it reaches a danger point? The court...
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