From the Associated Press:
Authorities have disrupted planning by foreign terrorists for an attack on New York City tunnels, two law enforcement officials said Friday. FBI agents monitoring Internet chat rooms used by extremists learned in recent months of the plot to strike a blow at the city’s economy by destroying vital transportation networks, one official said.
Lebanese authorities, acting on a U.S. request, have arrested one of the alleged plotters, identified as Amir Andalousli, the other official said. The officials spoke on condition of anonymity because the investigation is still under way.
Sen. Charles Schumer, D-N.Y., said, “This is one instance where intelligence was on top of its game and discovered the plot when it was just in the talking phase.”
Of course, news reports often miss the important details, but it appears these wanna-be terrorists might not have actually committed a crime.
From the NYT, “There’s no evidence that anything was ever done, no purchase of explosives or even the sending of money,” he said.”
It’s not illegal (at least in the US) to talk about blowing up the Holland tunnel. Even for a conspiracy charge, you have to take a substantial step toward effecting your plan.
It’s very good to disrupt these things early but they might have disrupted this one a bit too early!
[OK Comments: Conspiracy liability does not require a substantial step. Many conspiracies require an overt act, but others do not. Does the relevant federal criminal statute have an overt act requirement?]
This is taken from the Lexis annotated statute. The conspiracy statute is 18 USC 371.
“Overt act, as required for conviction of conspiracy, need not be substantive crime charged in indictment as object of conspiracy nor act which, taken by itself, is criminal in character; function of overt act in conspiracy prosecution is simply to manifest that conspiracy is at work and is neither project still resting solely in minds of conspirators nor fully completed operation no longer in existence. Yates v United States (1957) 354 US 298, 1 L Ed 2d 1356, 77 S Ct 1064 (ovrld in part on other grounds by Burks v United States (1978) 437 US 1, 57 L Ed 2d 1, 98 S Ct 2141)”
So there must be an overt act, but it does not have to be substantial. The majority of state jurisdictions only require an overt act that does not have to be substantial, it just has to show the existence of the conspiracy.
What is the legal dimension of monitoring a chat room on IRC or some darknet-type resource? Even if the Fed agent is impersonating a Jihadi, SITE Institute-style, is it still a type of wiretapping, or does the declared presence of the agent make the difference? If an agent was using some type of warez to mask their presence and still observe the chatspace, would that be eavesdropping that would require a warrant?
[OK Comments: It's pretty clear that there are no Fourth Amendment issues under United States v. White and the Hoffa case; it's not a wiretap, either, as the agent is a party to the communication.]
Huh. You’re right. Some federal statutes require it, others, apparently, do not.
Shabani 513 U.S. 10 (1994)
BTW, some states do call it a “substantial step” rather than an “overt act,” analogizing, I suppose, to attempt. But you’re correct that that’s a minority usage and I shouldn’t have referred to it that way.
Case in point:
[W]e find it instructive that the general conspiracy statute, 18 U.S.C. 371, contains an explicit requirement that a conspirator “do any act to effect the object of the conspiracy.” In light of this additional element in the general conspiracy statute, Congress’ silence in [21 USC] 846 speaks volumes.
The statute in question (I think) is 18 U.S.C. 2332f, as it covers bombings of public places and public transportation systems. It would seem by the statute’s conspiracy/attempts clause that an overt act is unnecessary: (2) Attempts and conspiracies.— Whoever attempts or conspires to commit an offense under paragraph (1) shall be punished as prescribed in subsection (c).
This does not stipulate the existence of an overt act; therefore, it’d seem that one is not necessary. My concern, however, is with subsection (b) which determines jurisdiction. There are two main categories by which jurisdiction is separated– offenses taking place inside the United States, and offenses taking place outside the United States.
I would start with a question–Where did the conspiracy originate? I would argue outside the United States as the only connection to the United States is the Holland Tunnel and U.S. Officials uncovering it. That being said, I think it is worth of consideration to determine whether or not a conspiracy occurred. These guys did not have any actual ability to commit the act– there was no overt act, nor were they in the United States, nor did they, presumably have access to the United States.
Not only was there no overt act, but it was impossible for them to commit such an act, albeit factually impossible– impossible nonetheless. These guys were stupid (and perhaps evil) for doing what they did and were far more stupid for even believing they could carry out such an attack, but it is not illegal to be stupid or evil– only violations proscribed by law are illegal acts. Perhaps I am totally wrong in my view, but I would argue that though an overt act is not necessary, such an act must at least be possible.
Using another crime as example, money laundering does not require an overt act. This I accept and agree with. If I come up to you and say I have some sum of money that I obtained illegally if you help me make it look legal I’ll give you a portion of it, and you agree, we are guilty of the conspiracy. However, what if I do not have that sum of money? Is it still conspiracy? What if, instead of that example, we both know the sum of money does not exist, yet we agree that “if we were ever in the position of possessing a large sum of illegal money we would launder it some specific manner,” have we conspired to commit money laundering? I would argue no, as the agreement was not accompanied by the ability to commit the act.
Bringing this back to the issue at hand, is it “really” conspiracy for two guys in another country to “agree” to blow up a building in the United States if they are in no position to actually carry out such an act?
I am not arguing it is not, however, I think it is a question deserving some analysis by someone far more intelligent than myself.