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Fort Dix Verdict Highlights the Problem of Conspiracy Law « The Washington Independent

The jury’s guilty verdict on Monday in the case of the Fort Dix Five reflects the problem Justice Jackson highlighted in 1949 when he called criminal conspiracy an “elastic, sprawling and pervasive offense . . . so vague that it almost defies definition.”

The Camden, New Jersey jury of eight women and four men, all sequestered, decided after about 38 hours of deliberation that the five men, accused of plotting to attack the Fort Dix military base in New Jersey, were not guilty of actually attempting murder — given that they hadn’t actually tried to hurt anybody — but they were guilty of thinking about it. By talking to two paid undercover FBI informants, themselves shady characters with strong incentives to encourage the defendants to turn their military fantasies into reality, the young men were transformed into felons who now could face life in prison.

As I wrote in connection with this trial last week, there are serious problems with indicting a group of men for conspiracy based on statements they made to informants who appear to have been goading them on. While the fact that they purchased weapons was obviously a legitimate concern, that it was an informant who arranged for the transaction and made it all possible suggests the crime couldn’t have happened without him. Technically, they can still be guilty of conspiracy if they were predisposed to commit the crime, even without the informant’s intervention. But do we want to be prosecuting people purely for their predispositions? And how do you actually prove a predisposition, anyway?

“Today it’s hard for jurors to listen to people who are angry with Americans mouth rhetoric which might be quite nasty, for them to look at it objectively and say, they have these views, but they weren’t going to be committing violent acts unless induced or persuaded to do so,” Sam Schmidt, a defense attorney who’s represented defendants in terrorism case, told me last week.

You can hardly blame the jurors for taking that view. After all, the stakes are high: if they chose not to convict and one of these people committed a violent act at some point in the future, it would be hard for those jurors to sleep at night.

Then again, the stakes are high in another way: if all those other people holding anti-American views out there see the US putting Muslims in prison essentially for their unpalatable political views — as it must have looked to the families of the defendants that wailed in the courtroom yesterday — that only adds fuel to their fire.

“There are terrorists, but not my son. They know they are not guilty,” Faten Shnewer, the mother of lead defendant Mohamad Shnewer, told the Philadelphia Inquirer yesterday, adding that it’s “because they are Muslims, that’s it.”

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