Conspiracy – A Quick Historical Survey

As the trial of Mr. Sulaiman Abu Gaith, the son-in-law of Osama bin Laden continues in New York in the United States District Court, we take this opportunity to provide a brief survey of the use of conspiracy charges in the United States and elsewhere in the past two centuries.  Any revisions or clarifications to the timeline provided here are most welcome.  Despite considerable debate about the utility and legality of conspiracy charges in the United States and elsewhere–most notably, the ongoing debate in the U.S. on whether conspiracy is an offense subject to trial by military commission under the Military Commissions Act,  a brief historical exploration reveals that conspiracy has an illustrious history, and its attractiveness to legislators and prosecutors remains consistent over time.

 1800s:

  •  May 1865: Lincoln Assassination Conspirators’ Trial: Samuel Arnold, George Atzerodt, David Herold, Samuel Mudd, Michael O’Laughlen, Lewis Powell, Edmund Spangler, and Mary Surratt were tried in a military tribunal for conspiracy to assassinate the president, and to support the ongoing Confederate rebel movement. Though the Lincoln assassination conspirators were not tried for terrorism, the rebel campaigns that they were charged with supporting (and facilitating by destabilizing the government in the wake of Lincoln’s assassination) was characterized as ‘terror’ in the trial transcripts.
  • 1886: In the wake of the May 4, 1886 Haymarket bombing in Chicago, 8 anarchist leaders (Albert Parsons, August Speis, Michael Schwab, Samuel Fielden, George Engel, Adolph Fischer, Oscar Neebe, and Louis Lingg) were charged with conspiracy to commit murder and tried for the Haymarket bombing. Apparently none of the evidence presented at trial proved a direction connection between defendants and the bombing, the jury found them all guilty of conspiracy to instigate violence. 7 were sentenced to hang.

1900s:

  • 1902: New York Criminal Anarchy Act of 1902: passed after the assassination of President William McKinley, designed to advance a statutory framework to prosecute anarchist political violence and terrorism. The Act had a conspiracy component, which was later strengthened when a version of this legislation was modified for federal enactment as the Smith Act of 1940.

1910–20s:

  • 1922: Soviet Revolutionaries (including Abram Gots and Evgenii Timofeev) are charged with “maintaining treasonous relations with foreign interventionists [Anglo-French imperialists], organizing peasant rebellions, and conspiring to carry out terrorist attacks on Bolshevik leaders” (including a 1918 terrorist attack that almost killed Lenin). At the trial’s conclusion, twelve SR leaders were sentenced to death, though their executions were suspended.

1930s:

  • 1933: 24 individuals, including Al Capone were charged in Chicago with criminal conspiracy to stifle trade by collusive extortion and malicious mischief, in relation to mob racketeering, violence, labor union corruption, and terrorist activities.
  • March1936: Pedro Albizu Campos, Harvard graduate and Puerto Rican nationalist was charged with sedition and conspiracy to overthrow the Federal government.
  • Nations Convention for the Prevention and Punishment of Terrorism, through which signatory states committed to treating acts of terrorism, including conspiracy, incitement and participation in such acts, as criminal offences.
  • 1938: Moscow Trials: though not termed ‘conspiracy,’ the related charge of ‘complicity’ was widely used against Trotskyites by Prosecutor Andrei Vishinsky.

1940s:

  • 1940: Smith Act of 1940, which included offenses that could be termed ‘membership offenses,’ but which dealt with conspiracy, as well as the lower bars of collusion, advocacy, and education.
  •  December 1940: Alexander Hoffman, C.I.O. union official and “Left Wing sympathizer” sentenced to 4-8 in New York for attempted arson and conspiracy in furtherance of labor-union terrorism. Hoffman’s sentence, and those of 3 other’s convicted of “labor-union terrorism” were commuted by New York Governer Poletti in 1943.
  • 1942: In June 1942, eight German-American members of a pro-Nazi organization brought explosives from German U-boats into the US via New York and Florida coastal waters. The explosives were to be used to target key infrastructural sites in the US. One of the members, George Dasch, confessed the plot to the FBI, and the 8 saboteurs were tried before a military commission. Ex Parte Quirin, 317 U.S. 1 (1942), found that the conspirators had violated the law of war, were unlawful enemy combatants, and that their rights had not been violated by prosecution in a military tribunal. Six of the conspirators were sentenced to death by electrocution.
  • 1945: Nuremberg trials. In order properly prosecute the number and variety of Nazi crimes, those who were tasked with framing the purview of the Nuremberg courts (particularly Lt Colonel Murray Bernays) utilized the American concept of criminal conspiracy. This allowed the Nuremberg tribunal to prosecute members of the Nazi government, SS, Gestapo, and other affiliated organizations for participation in a “conspiracy to commit murder, terrorism and the destruction of peaceful populations in violation of the laws of war.” Notably prior to this conspiracy was not a concept that had been deployed in international law. This idea seems linearly connected to the work of Soviet criminologist Aron Naumovich Trainin, who began developing a Soviet doctrine of international law in 1935.
  • 1948: Israel passes Prevention of Terrorism Ordinance No 33 of 5708-1948, which applies criminal prohibitions on assistance, attempt, neglect to prevent, and conspiracy, as well as more blatant terrorist offences.

1950s:

  • November 1950: two members of the Puerto Rican Nationalist Party attempted to assassinate Harry S. Truman in Washington, D.C. Though Truman was unharmed, a member of his security force, and one of the assailants was killed. The surviving assailant, Oscar Collazo, was convicted in 1951 of homicide and several counts of assault with the intent to kill. In the D.C. Circuit appellate decision, the Court cited Marcus v. U.S. & Patten v. U.S. for the proposition that the existence of a conspiracy elevated what may have been a manslaughter charge to murder.
  •  US Cold-War related conspiracy charges advanced in cases having to do with advocating government overthrow in the 1950s: e.g. 1951: U.S. v. Dennis, 341 U.S. 494 (1951)
  • 1956: Smith Act amended and the conspiracy provision was strengthened (if two or more persons conspire to commit any offense described in the statute, would be liable to a max fine of $20,000, max imprisonment term of 20 years, or both, and would be ineligible for employment in the U.S. for 5 years following conviction). The conspiracy provisions of the Smith Act remain intact, but require specific intent to cause the overthrow of the government by force and violence.

1970s:

  • 1972: Two Jewish Defense League members were convicted of conspiracy to bomb the Long Island residence of the Soviet mission to the United Nations.
  • 1978: Four Weatherman Underground members (Judith Emily Bissell, Thomas Michael Justesen, Leslie Ann Mullin, and Marc Curtis Perry) pled guilty in federal court in Houston, TX to conspiracy and possession of explosive charges in relation to plans to bomb the office of California state Senator John Briggs and other Southern California sites.

1980s:

  • El Rukn Chicago street gang members charged with conspiracy to commit terrorist acts on behalf of the Libyan government in the 1980s.
  • 1988 – 1990: Resistance Conspiracy Case, 7 members of a “Communist politco-military organization” M19CO (May 19th Communist Organizatino) were indicted in 1988 on Federal charges of conspiracy to bomb federal buildings in New York and the DC area. In 1990, three of the seven (Marilyn Buck, Laura Whitehorn, and Linda Evans) were convicted of conspiracy and malicious destruction of government property.
  • 1983: Four members of Fuerzas Armadas de Liberación Nacional Puertorriqueña (FALN) were convicted in Chicago of seditious conspiracy for terrorists acts in support of the Puerto Rican nationalist movement.
  • 1987 – 88: Federal prosecutors tried leaders of the White Supremacy (Christian Identity) Movement for sedition (related to terrorist activities), but all were acquitted (though some were convicted on other charges).
  • 1989: Fawaz Younis was extradited from Beirut to US and tried for his participation in the hijacking of Royal Jordanian Airlines Flight 402 in June 1985. Younis was convicted of conspiracy, hostage taking, and aircraft piracy, and sentenced to 30 years imprisonment.

1990s – 2001:

  • 1990: U.S. v. McAnderson, 915 F.2d 934 (7th Cir. 1990): five defendants, all members of the Chicago Street gang El Rukns, were convicted for conspiracy to commit terrorist attacks in the U.S. in exchange for payment from Libya, in violation of 18 U.S.C. § 371.
  •  1995: Melvin Edward Mays, a member of the Chicago El Rukns street gang, charged with over 40 federal counts related to a conspiracy to conduct terrorist activities on behalf of the Government of Libya.
  •  1995: Michael Martin, a supporter of the Provisional Irish Republican Army pled guilty in Arizona to one count of conspiracy to obtain munitions and weapons in violation of Title 18, U.S.C. § 371.
  • July 1995: the U.S. arrested and extradited Musa Abu Marzook (Hamas) to Israel to face charges of terrorism and conspiracy to commit murder.
  •  August 1995: Eyad Ismoil Najim was rendered to FBI custody by Jordanian authorities, and charged with bombing and conspiracy violations in connection with the 1993 World Trade Center bombing. He, along with a number of other defendants, was convicted of charges relating to a conspiracy to bomb U.S. commercial airliners in southeast Asia, and 1993 bombing of World Trade Center.
  • October 1995: Egyptian Shaykh Omar Abdel Rahman was convicted of seditious conspiracy, solicitation to murder Egyptian President Hosni Mubarak, conspiracy to murder President Mubarak, solicitation to attack a U.S. military installation, and conspiracy to conduct bombings.
  • September 1996: Wali Khan Amin Shah was convicted in the Southern District of New York of conspiracy to bomb U.S. air carriers transiting the Far East.
  • 1996: France, Law Number 96–647: establishes that conspiracy to commit terrorist acts can be prosecuted a terrorist act.
  •  1997: In June, Timothy McVeigh was found guilty on eleven counts, including conspiracy and use of WMDs, destruction of government property with explosives, and eight counts of first-degree murder (for each federal law enforcement official) for his role in the Oklahoma City bombing in 1995.
  • 1998: UK Terrorism and Conspiracy Act: establishes conspiracy offences as a means to target terrorist activity related to Northern Ireland.”
  • 1999: Pakistan amends anti-terrorism ordinance to expand the definition of the act of terrorism, and enhance the purview of anti-terrorism courts to include additional provisions from Pakistan’s criminal court.
  • October 2000: Defendant Ali Mohamed pled guilty in the Southern District of New York, to five counts of conspiracy surrounding the 1998 bombings of U.S. embassies.

Post 9/11 (non-Islamic terrorism conspiracy charges):

  • 2003: White supremacist Leo Felton was prosecuted for crimes arising from conspiracy to ignite racial holy war through execution violent terrorist actions (charges included conspiracy to make an possess an unregistered destructive device, receipt of explosives with intent to kill or injure persons or damage property, firearm possession, and conspiracy to obstruct justice, and conspiracy to commit bank robbery, among other charges. Felton is currently serving a 26-year sentence.
  • 2008: RNC8: eight members of the RNC Welcoming Committee were arrested and charged with “Conspiracy to riot in furtherance of terrorism”.
  • December 2013: Former Egyptian President Mohamed Morsi and 35 other Islamists charged in Cairo for conspiring with foreign groups (including Hezbollah & Hamas) to commit terrorist acts in Egypt, and for divulging military secrets to a foreign state.

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).