CONSPIRACIES AND INCITEMENT

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Chapter 4
CONSPIRACIES AND INCITEMENT
SYNOPSIS
§ 4.01 The Terrorist Conspiracy
[A] World Trade Center I and Embassy Bombings
[B] Defining the Terrorist Conspiracy
[C] When to Intervene
[D] Examples of Conspiracy Prosecutions
§ 4.02 Treason, Association, and Conspiracy
[A] Treason and Political Freedom
[B] The Communist Conspiracy and the Right of Association
§ 4.03 How Imminent is Imminent?
[A] U.S. — Threats and Incitements
[B] International Standards of Incitement
[C] Other Nations
[1] United Kingdom
[2] Germany
[3] Netherlands
[4] France
[5] Australia
§ 4.04 Conclusion
A distinguishing feature of Anglo-American criminal law is the concept of “conspiracy.”
Conspiracy principles allow prosecution of an agreement to commit an offense before the harm
occurs, as well as punishment of inactive co-conspirators. European law may punish one person
for “incitement” of another to commit an offense, but until recently the concept of incitement was
premised on a completed offense.1 Other systems, most notably those of Asian and Islamic origin,
punish only active participants in completed offenses.
Conspiracy cases consistently refer to the principle of vicarious liability known as the Pinkerton
Doctrine. Pinkerton v. United States2 established [84/85]several propositions regarding the law of
conspiracy. One of the most important is the proposition 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.”3
Pinkerton also confirms 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. And, thirdly, conspiracy is an inchoate offense that is punishable
even if no physical harm ever occurs to a victim. “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.”4
§ 4.01 THE TERRORIST CONSPIRACY
[A] World Trade Center I and 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 occurred in February 1993 and bombings of the U.S.
embassies in Kenya and Tanzania occurred on August 7, 1998.5
World Trade Center I resulted in two separate prosecutions which illustrate some of the issues
of conspiracy prosecutions.6The four defendants in the Salameh case were tried for various levels
of involvement in a conspiracy to bomb structures used in interstate commerce and related
charges.7 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 “making war against the United States.”8
[85/86]
United States v.
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 laid out before 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.
Salameh9
The alleged mastermind, Yousef, trained at an Afghan terrorist camp with one Ajaj. When the
two flew back into the U.S. with a plan to bomb the WTC and other structures, 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. 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. 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. Without this critical error, “ludicrous”
in the words of the appellate court, the investigation would have been more difficult but rifts were
already occurring in the structure of the plotters, as the Rahman case below shows.
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 of convincing the jury that he was not guilty of at least conspiring to commit some
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.’”10 The
conspiracy concept thus allows some lack of specificity in knowledge on the part of a defendant
who would not be an accomplice without knowledge of which particular building was to be
targeted.
The Government then brought ten additional conspirators to trial on a variety of charges which
raised greater difficulties with conspiracy law. United States v. Rahman11 involved convictions for
“seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign
of urban terrorism.” The Second Circuit listed the convictions as follows:
[86/87]
The defendants were convicted of the following: seditious 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).12
Obviously, there are many rather tenuously connected behaviors charged in this single case.
This runs the risk of having evidence of wrongdoing before the jury that would not be admissible
were it not for the allegation of an overall plan. But what was the plan? To wreak havoc in the
U.S.?
Some of these actions constituted completed crimes. Others were attempts. And yet others were
mere 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. Again we ask, what was the plan?13
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 on the bombing conspiracy. Meanwhile, Nosair could not be charged on
many of the offenses because he was in jail for the murder of Rabbi Kahane. What linked ElGabrowny and Nosair was the overall seditious conspiracy, which the prosecution defined as
“levying war against the U.S.,” a very broad and general outline of a plan.
Al Qaeda made the task of the Government easier when it “declared war” on the U.S. in the
form of calling for “jihad” and the killing of Americans. 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? At the time of WTC I, however, the Rahman group and al Qaeda [87/88]were, at
least to some degree, separate entities. The court in Rahman does not indicate that Sheikh Rahman
himself was explicit about the scope and nature of “jihad”:
According to his speeches and writings, Rahman perceives the United States as the
primary oppressor of Muslims worldwide, active in assisting Israel to gain power in the
Middle East, and largely under the control of the Jewish lobby. Rahman also considers the
secular Egyptian government of Mubarak to be an oppressor because it has abided Jewish
migration to Israel while seeking to decrease Muslim births. Holding these views, Rahman
believes that jihad against Egypt and the United States is mandated by the Qur’an.
Formation of a jihad army made up of small “divisions” and “battalions” to carry out this
jihad was therefore necessary, according to Rahman, in order to beat back these oppressors
of Islam including the United States.14
At this point, we come close to the point at which a conspiracy prosecution could be based on
speech normally considered protected under the First Amendment. As prevailing doctrine on
advocacy and the right of association shows,15 a defendant can cross the line from protected
advocacy to criminal conspiracy with the first overt act toward a substantive harm. 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 wheel 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.”16 In the context of terrorism,
this definition raises intriguing possibilities right from the start.
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 [88/89]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 is so that an investigator who
manages to capture or “turn” one cell member will not thereby be able to learn anything about the
other cells. Everyone 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 al Qaeda or the Medellin Cartel of
the 1980s, only the ruling elite or inner circle will know each other.
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?
The metaphor of a “chain” conspiracy refers to links in a single line, while the “wheel” model
refers to an inner core around which unconnected spokes revolve.17 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 rightly gives room for allowing the conviction of those
discovered upon showing sufficiently the essential nature of the plan and their connections with it,
without requiring evidence of knowledge of all its details or the participation of others.”18
There are limits, both constitutional and otherwise, on the application of these models.
In Kotteakos v. United States,19 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 [89/90]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.”20
A wheel may have spokes each of which itself is a chain (the “chain-wheel”). In United States
v. Perez,21 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 if there were not others out doing the same thing because 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. It is obvious 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 definition of a
conspiracy to destroy bridges, tunnels, and buildings in New York.
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. In that case, the links to other cells and back along the chained spoke to
the hub may well have been broken. This does not mean that the conspiracy could not be charged
among those who did know what was going on, but just that the breadth of the conspiracy may be
limited.
[90/91]
[C] When to Intervene
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 harm 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. Sarkissian22 was the first reported case in which a Foreign Intelligence
Surveillance Act (FISA)23 wiretap resulted in a criminal prosecution. The frightening aspects
of Sarkissian, showing the dilemma of conspiracy investigators, are that even with the wiretap the
plotters succeeded in getting dynamite on board a U.S. commercial airliner, and that the
government agents came close to losing their prosecution by failing to get a search warrant at the
critical moment.
A group of Armenian dissidents in Los Angeles came under the scrutiny of the FBI. With a
wiretap order from the FISA Court, FBI agents learned that they were planning to bomb the
Armenian Consulate in Philadelphia. Continuing to monitor the telephone conversations, agents
learned that parts of a bomb were being carried from Los Angeles to Boston. They deduced the
probable flight and probable identity of the courier, and notified the Boston FBI Office, which sent
50 agents to Logan Airport to intercept the courier. Using dogs and x-ray as luggage was unloaded
from the plane, Boston agents detected sticks of dynamite in a suitcase and eventually arrested the
person who had checked the suitcase.24
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 preoc …
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