Conspiracy theory: the use of the conspiracy doctrine in times of national crisis.

Author:Siesseger, Marie E.


Prosecuting those who are alleged to have posed threats to national security presents unique challenges to the legal system, challenges that American jurisprudence frequently appears inadequately equipped to meet. As a result of both the secretive nature of many anti-government and terrorist organizations as well as the difficulty of identifying the exact nature of the threats such groups pose, the government often resorts to the charge of conspiracy when indicting these cases. This practice has resulted in the gradual expansion of the doctrine of conspiracy, most notably in the wake of heightened national security threats. (1)

The conspiracy charge is an especially malleable one and represents something of an anomaly in our system of criminal jurisprudence, which generally affords individuals stringent protections in the face of potential abrogation of their liberty. (2) Although the subject of much criticism, the crime of conspiracy has an established, and undoubtedly warranted, place in American jurisprudence. (3) The purpose of this Note is not to challenge the doctrine of conspiracy as a whole or even to question the specific factors presumed to define the parameters of a conspiracy in the prosecutorial context. Instead, the discussion will revolve around two relatively discrete eras of heightened political and social concerns in American history--the McCarthy Era and the modern, post-9/11 era--and the implications of those concerns for the scope of conspiracy charges made in cases that were emblematic of the particular sensitivities of their respective eras. Through an examination of these two eras, in which political and social pressures coalesced in highly charged prosecutions, this Note will show that because the doctrine of conspiracy is so readily adaptable, it has the potential to become perverted and unduly expanded when political and social stresses are placed upon it.

Conspiracy's central weakness--the potentially over-expansive reach of its scope--creates a quagmire into which events involving political and social threats to national security inevitably become entangled. As Justice Jackson noted in his concurring opinion to Krulewitch v. United States,

[t]he crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself.... Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history. (4) Jackson's candid acknowledgment of the political component of the impetus behind conspiracy law exposes a critical flaw in the system--that it allows courts to give in to the "strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers." (5)

Almost from its inception, the crime of conspiracy has been subject to flagrant abuse. Originally conceived as a method to curb abuse of the legal system, (6) it ballooned into an almost unrecognizable version of its rather humble, and strictly limited, beginnings. It failed to withstand the reactionary pressures against the "Strict Law" in the seventeenth and eighteenth centuries, during which it was transmogrified into a shadowy specter of its former, neatly defined self. (7) In particular, during this period the doctrine of conspiracy failed to ward off evidentiary encroachment, specifically, the admission of acts that are not otherwise criminal into a conspiracy trial. (8) This expansion is one of the more troubling aspects of this doctrine. In more recent judicial memory the law of conspiracy has been the subject of what amounts to a virtual revolution in thought. Conspiracies today are often massive, hulking entities encompassing a broad spectrum of actors, acts, and localities. (9)

The following discussion reviews the traditional scope of conspiracy, followed by an examination of the background circumstances and applications of the conspiracy doctrine in both the McCarthy and post-9/11 eras. Through the juxtaposition of the application of conspiracy in these two eras against the backdrop of the general use of conspiracy, the imprimatur of socio-political pressures on the former becomes apparent. In a global community of intense ideological differences, the threat posed to individual nations' security by collective acts of terrorism and political violence is acutely felt. However, over-reliance on traditional mechanisms for curbing such threats, especially the doctrine of conspiracy, carries the potential for distorting those mechanisms beyond recognition.


    In the first eight words of his explanation of the conspiracy doctrine, Professor LaFave characterizes the crime of conspiracy as "somewhat vague." (10) This characterization is telling and far from unique. (11) Justice Jackson used exactly the same term in his condemnation of the ever-broadening sweep of conspiracy prosecutions in his concurrence to Krulewitch v. United States. (12) The following discussion illustrates how the crime of conspiracy developed into such a vague doctrine.

    1. Background

      Conspiracy did not begin life in the troubled state it finds itself in today. The crime of conspiracy has a comparatively lengthy history, (13) however, early conspiracy law lacked the flexible flavor of its modern-day counterpart. The original incarnation of the doctrine was as a series of statutes enacted strictly for the purpose of remedying abuses of legal procedure. (14) The strictures of the statutory enactments underwent a gradual permutation process beginning in 1611 with the Poulterers' Case, and continued intermittently thereafter. (15) In that case, the Star Chamber declared that the statutory limitations regarding the requirements of a false indictment were immaterial and that confederation constituted the gist of the crime. (16) This sudden expansion of the scope of conspiracy proved to be the flashpoint at which the steadily brewing cauldron of social pressures ignited, producing in 1615 the opinion in Bagg's Case, which first proclaimed the criminality of an unexecuted conspiracy. (17) In this case, the King's Bench went so far as to declare the legitimacy of its exercise of extrajudicial power, stating that "to this Court ... belongs authority, not only to correct errors in judicial proceedings, but other errors and misdemeanors extrajudicial, tending to the breach of the peace ... so that no wrong or injury ... can be done, but that it shall be (here) reformed or punished by due course of law." (18) This tendency toward extrajudicial justice is particularly pernicious in the conspiracy context, because it gives rise to gross misuse of the doctrine, especially in the face of social pressures such as those that prevailed in the seventeenth and eighteenth centuries. (19)

      The penal codes of European nations governed by civil codes approach conspiracy in a somewhat different manner and provide an interesting counterpoint to this discussion. (20) Rather than using conspiracy as a separate and self-contained offense, these countries generally use conspiracy as the basis for increasing the sentences attached to substantive crimes. (21) Even this approach is subject to the vicissitudes of popular sentiment regarding situations involving national security, and many countries decree that "when no substantive offense has been completed ... certain types of conspiracies are [still] proscribed--notably those directed against the security of the state, those involving many participants organized for the purpose of committing numerous crimes, and those contemplating particularly serious offenses." (22) Even judicial systems that have maintained a somewhat more stringent adherence to the definitions of conspiracy detailed in their respective codes (23) carve out a special niche for conspiracies in which national security is implicated, highlighting both the gravity of conspiracies against the state and the underlying principle of criminal law, the protection of society.

    2. Scope

      1. Scope Defined

        There are many troubling aspects to the crime of conspiracy, but perhaps the most critical is the ill-defined parameters into which a conspiracy must fit. Defining the scope of a conspiracy has extensive evidentiary ramifications and is therefore of particular importance. (24) The scope of a conspiracy is defined by the court that evaluates it, however, and there is no truly systematic and universal process that courts employ to ascertain the precise boundaries of a conspiracy. Therefore, the delineation of the conspiracy is controlled by the central element of the crime--the agreement. (25)

        The agreement is the "essence of conspiracy," and the crime of conspiracy "is complete on proof of an agreement between two or more persons to effect an unlawful purpose." (26) As one treatise explains, "[t]he agreement is all-important in conspiracy, for one must look to the nature of the agreement to decide several critical issues," including mens rea and the possibility of multiple conspiracies. (27) Whether an agreement exists depends on the facts and inferences appropriately drawn from them. (28) No degree of formality is required to prove an agreement, indeed, a "mere tacit understanding" may be sufficient. (29)

        The extent of the agreement is defined almost solely by reference to the facts presented to establish it. As noted by the Supreme Court in Braverman v. United States, "when a single agreement to commit one or more substantive crimes is evidenced by an overt act ... the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects." (30) With respect to the potential for multiple conspiracy charges to stem from a single agreement, the Court further explained that "[t]he...

To continue reading