August 22, 2006
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Today, the District Court (S.D. Fla.) handling the government's criminal prosecution of Jose Padilla -- a man held as an enemy combatant for years before a series of court decisions forced the government into criminal charging him -- dismissed one count of the indictment against him and ordered the government to clarify another count in the indictment. The clarfication was a procedural point: the government tried to charge the defendant under two different federal statutes in the same count of the indictment; this isn't allowed in the Eleventh Circuit (although apparently it is allowed in the Second Circuit), so the court ordered the government to narrow that count of the indictment.
The interesting issue is whether the court properly dismissed the first count of the indictment. The government charged Padilla with three counts:
Count 1 -- Conspiracy to Murder, Kidnap, or Maim Persons in a Foreign Country
Counts 2 and 3 -- Conspiracy to Provide Material Support to a Terrorist Organization, Knowing the Support will be used by the group to Murder, Kidnap or Maim
I've combined Counts 2 and 3 because it's unclear to me from the court's opinion what exactly is different about them. I think Count 2 is charged under the general federal conspiracy statute whereas Count 3 is charged specfically under a specific statute that specifically makes a violation of itself a conspiracy.
Anyway, the court held that the government couldn't charge Padilla with both (1) Conspiracy to Commit Murder and (2) Conspiracy to Provide Material Support to Commit Murder because that would violate the Double Jeopardy Clause. The reasoning is that the government is charging Padilla twice for the exact same conduct. The court argues that there was really a single conspiracy here because there was a single agreement. Even if the agreement was to do multiple things (like both provide material support to Al Qaeda and also murder, kidnap or maim), it was still a single conspiracy and thus a single crime. See Braverman v. United States, 317 U.S. 49, 52-54 (1942).
It's hard for me to say whether this is right. Frankly, the court's opinion is pretty confusing -- I can't even decipher what the difference is between the second and third counts of the indictment -- which doesn't inspire confidence. However, it does seem like the government is charging a single conspiracy to do multiple things here, which, if the court is correctly citing the cases it refers to, violates the Double Jeopardy Clause.
I think one problem here is that conspiracy is often built on a fiction. To prove conspiracy you have to show (1) an agreement to commit a criminal offense; (2) the defendant intended to make the agreement; (3) the defendant intended to commit the substantive offense. But often there's no direct evidence of the agreement. So we infer the agreement from the acts of the co-conspirators. Suppose a witness sees two people meet at a dock, have a brief discussion, and then each take a 100 gram box of cocaine off a waiting boat. Even if neither person testifies (but the witness does), we would probably be able to infer an agreement between them to distribute the cocaine and thus convict them of conspiracy. (Indeed, we could probably infer a conspiracy from even more remote circumstances then that.) But since we don't have any direct evidence of what the two people at the dock said to one another, how do we know what they actually agreed to? Maybe they also agreed to do other things at that time. Maybe they didn't. Now, this doesn't matter in the example I've given, but the only way to really determine whether Padilla made separate agreements to do different things or one agreement to do multiple things is beyond our knowledge.
The courts look to certain factors to guide them in determining whether there was a single conspiracy: (1) the time period of the conspiracy; (2) who the co-conspirators are; (3) places where the acts were to take place; (4) the overt acts taken in furtherance of "each" conspiracy; (5) the statutes the defendant is charged under. I guess the thought is that if the same people are involved in planning multiple acts, it's more likely they are all acting pursuant to a single agreement. But I'm not sure how probative the other factors are, and the Padilla court mentions them, but then doesn't seriously analyze how they apply to his case.
The second problem is with the nature of the target crimes involved here. Padilla is charged with both agreeing to murder and agreeing to provide material support to Al Qaeda that it will use to murder. The fact that you can conspire to commit the material support statute is quite odd. The material support statute, 18 U.S.C. 2339A, makes it a crime to give money, property, technical expertise, or even oneself, to a terrorist organization with the intent that that help be used to violate a long list of federal statutes. In other words, it makes it a crime to be an accomplice to a terrorist organization. So what conspiracy to violate 2339A really means is conspiring to be an accomplice to the terrorist organization. But it doesn't make much sense to say that a defendant conspired to be an accomplice. In order to be an accomplice, the crime must have actually been carried out, in which case, you would charge the defendant with conspiracy to commit the crime itself, not with conspiracy to be an accomplice to it.
In any event, it will be very interesting to see what happens if the government appeals. (I'm not sure if the court's order is immediately appealable, or if the government will have to wait until the trial is over.) The count that was dismissed carried a heavier penalty, but it would also be more difficult to prove. What is certain is that the war on terror is providing a lot of interesting problems in criminal law because it involves recently enacted statutes that continue to expand the outer bounds of criminal liability.
It's difficult to say whether this expansion of liability is good. On one hand, it is startling because these new statutes have a tendency to criminalize otherwise innocuous conduct based on the defendant's intent, which can be difficult to ascertain. And criminalizing behavior that in such early stages denies people the chance to come to their senses and turn back. On the other hand, it's hard to imagine many terrorists turning back. I think associating with a group like Al Qaeda is probably a big decision and once people make it, they don't turn back. The biggest reason why we should be willing to extend criminal liability is that it encourages the government to use traditional criminal trials to handle prosecuting terrorists rather than locking them away as enemy combatants at Guantanamo for years on end. Portrayed in a bad light, that sounds like an argument to allow a small wrong to prevent a bigger wrong. But maybe damage control is the best we can hope for at this point. Also, given how terrorist organizations actually function, we may need to extend criminal liability to cover early, preparatory conduct because that is the stage where we have the best chance of stopping them from killing innocent people. See generally Robert M. Chesney, The Sleeper Scenario, 42 Harv. J. on Legis. 1 (2005) (describing how terrorist organizations function and what the criminal law can do to respond).
A final point to consider is how criminal laws aimed at terrorists will effect the criminal law in general. We can justify broadening criminal liability of early planning stages of terrorist plots because terrorism has the ability to great enoromous harm from a single event. By contrast, ordinary crimes can surely be harmful, but a single crime would not be so harmful that it would justify similar statutes to those we are using against people involved with terrorist organizations. But if we let some legal norms relax with regard to terrorism, who is to say that this won't infect the entire criminal law? I guess we have no assurances against this. A slippery slope argument can always be made though, and for that reason, they are never very convicing to me. We have to have faith that courts and legislators can draw appropriate lines.
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