Inchoate terrorism: liberalism clashes with fundamentalism.

Author:McCormack, Wayne
  1. 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.


    1. 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...

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