Conspiracy Charge Common in Terrorism Cases

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The Miami defendants in the alleged terrorist plot are charged with four counts of conspiracy. Conspiracy is one of the most commonly filed charges in terrorism cases, but it makes civil libertarians uneasy.

DEBBIE ELLIOTT, host:

The Miami defendants are charged with four conspiracy counts, including conspiracy to wage war on the U.S. and conspiracy to help a terrorist group.

When prosecutors bring terrorism cases to court, conspiracy is one of the most common charges. NPR's Ari Shapiro reports on why prosecutors love it and why it makes some civil libertarians uncomfortable.

ARI SHAPIRO reporting:

The charge of conspiracy is sometimes called the prosecutor's darling. George Washington University law professor Stephen Salzberg explains why.

Professor STEPHEN SALZBURG (George Washington University): A lot of people have thought for a long time that conspiracy is one of the easiest charges for prosecutors to bring and one of the easiest charges for prosecutors to prove.

SHAPIRO: Prosecutors have to show that two or more people agreed to commit a crime, and then they usually have to show that at least one of them took some step toward committing the crime. The crime you're plotting doesn't even have to be feasible, says former federal prosecutor Andrew McBride.

Mr. ANDREW McBRIDE (Former Federal Prosecutor): They need not succeed in the crime. They need not even in come close. It is essentially an agreement to commit a crime and some scintilla of movement toward putting that plan in operation.

SHAPIRO: That's what makes some law professors uncomfortable with the crime of conspiracy. Paul Butler teaches at George Washington University and he used to be a federal prosecutor.

Professor PAUL BUTLER (George Washington University): The concern that legal scholars have is that conspiracy sounds like a thought crime. People are punished for what's going on in their mind, not for things they actually do.

SHAPIRO: Perhaps acknowledging that concern, Attorney General Alberto Gonzales made a point yesterday of describing the things the men in Miami are alleged to have actually done.

Mr. ALBERTO GONZALES (U.S. Attorney General): They did request equipment. They did request funding. They took an allegiance, swore allegiance to al-Qaida. We clearly believe there's sufficient information, sufficient facts to support this prosecution.

SHAPIRO: According to Butler, the law allows a court to convict people for conspiracy even without that litany of overt acts.

Mr. BUTLER: There's some notoriously small overt acts that have been alleged in conspiracies, most recently in the Zacharias Musawi case, when one of the overt acts was that he joined a (unintelligible). Mind you, he's charged with killing 3000 people or conspiring to do that, but one overt act is all it takes and one of his acts was, again, joining a (unintelligible).

SHAPIRO: And it makes no difference, says Salzberg, that the defendants in the Miami case actually dealt with an undercover agent the whole time.

Mr. SALZBERG: An agreement to fund al-Qaida is a crime. The fact that you're dealing with someone who's not really al-Qaida means you were tricked, but nonetheless the criminal intent is exactly the same as if you were dealing with a legitimate al-Qaida representative.

SHAPIRO: Prosecutors can charge conspiracy in all kinds of settings, not just terrorism. Northwestern University law professor Ronald Alan(ph) fears conspiracy charges are so easy to prove that they leave room for prosecutors to overreach. On the other hand, he says...

Professor RONALD ALAN (Northwestern University): The only way in which the government can surveil and find out about the activities of individuals who really do have deep in their heart a tremendous hatred and want to kill a lot of Americans is through these kinds of activities.

SHAPIRO: Deputy Attorney General Paul McNulty called it prevention through prosecution. Alan says it's a very stark example of the difficult and complex trade-off between security and liberty.

Ari Shapiro, NPR News. Washington.

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