Julian Assange & Conspiracy: A Bridge Too Far?

By Peter Kemp

Common law conspiracy is an agreement by two or more to do an unlawful act, or to do a lawful act by unlawful means. The actus reus (guilty act) is the agreement itself. The mens rea (guilty mind) is the intention to carry out the unlawful act. Another way of putting it is that there must be a “meeting of the minds” to commit the unlawful act.

It does not matter that the conspiracy was not carried out, liability for common law conspiracy arises simply from the the agreement.

It goes almost without saying, that to avoid First Amendment protection of a hypothetical Espionage case (and I will leave those arguments to US constitutional lawyers), conspiracy appears to have a much greater prospect of success for the DOJ, provided evidence is forthcoming that can satisfy all the required elements of conspiracy.

In the USA, in a conspiracy matter, the first question a prosecutor will ask is whether or not it is a common law conspiracy or a statutory one. Statutory conspiracy ordinarily requires one more element to be proven: was an overt act committed after the “meeting of the minds?”

The case of United States v. Shabani, 513 U.S. 10 (1994) considered this very question of whether an overt act was required apart from the original act of conspiring. Legislators in any jurisdiction are of course free to decide whether or not they want a common law approach or common law plus overt act to establish a charge of conspiracy.

In the case of Julian Assange, the oft mooted alleged liability is under the Espionage Act, and while that and 1st Amendment shield arguments deserves separate and more substantial analysis than is planned here, I shall mention it briefly as it importantly includes codified conspiracy. The alleged conspiracy, if charged, will relate back (most likely) to the Espionage Act.

It would appear that s793(c) is the more “popular” part of the Espionage Act or at least as Secretary of State Hillary Clinton and Sen. Dianne Feinstein appear to have argued that Mr Assange could be prosecuted under Subsection(c) of s.793 which states:

Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

Note that it does not really matter which section the DOJ chooses as I will explain below.

The statutory conspiracy in s. 793 is subsection (g)

s793(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

And there we have it, common law conspiracy plus one overt act afterwards. This is US Federal law of conspiring to offend against the Espionage Act.

(Note at this point that the following arguments and scenarios advanced are to a hypothetical situation and do not make presumptions of guilt on any party. Both Julian Assange and Bradley Manning, if and when charged, are entitled to the presumption of innocence.)

The Additional Overt Act Required:
Now the DOJs prosecutors would argue that the overt act was committed by Julian Assange in receiving the documents from Bradley Manning, and the proof of that (again they would argue in part, or as buttressing confirmation, as one example) would be in publishing the documents.

The problem with that is of course there is no proof, publicly at least, of Wikileaks/Assange receiving the files from Manning. Put another way, there is no proof of Manning giving the files to Wikileaks/Assange. Circumstantial evidence is not proof unless of course the circumstantial evidence is overwhelming and say from other witnesses or other forensic procedures.

(I’d raise another form of evidence at this point which the US likely has an equivalent to, and that is similar fact evidence, ie tendency and coincidence evidence which is evidence, in this case, of prior acts of receiving other leaks from whistleblowers which I won’t go into here.)

It now can now be understood, that the subpoena of fishing expedition dimensions I expounded on in my last post, is most likely designed to address both the issue of the element of the overt act and the primary element-“agreement”-of an alleged conspiracy.

The DOJ is looking for the proverbial needle, in this matter, in multiple haystacks. Not only Twitter, (subpoena now unsealed) but presumably Facebook and Google have been served sealed subpoenas looking for IP to IP evidence of file transfers or other web communications (presumably also since November 2009) that might conceivably represent proof of a link (and more) between Manning and Assange.

It’s a tall order, to put it mildly.

Even then, assuming such a link was established, (which I very much doubt will happen) it is still not iron clad proof of a conspiracy. Timing discrepancies alone could cast reasonable doubt on that evidence.

Lack of specific proof that it was a particular IP of a computer that Assange or associates was using at that time, when allegedly data from Manning was transferred is another legal hurdle.

If for example, a specific IP address was identified as having a certain data amount approximating the alleged diplomatic files size (obviously not the contents) and was detected from subpoenaed log records, and that computer had nothing whatsoever to do with Assange or his associates, the legal waters would be well and truly muddied. That would be that another prospective, intermediary party and potential co-conspirator to the alleged conspiracy.

This is however all conjecture and hypothesis which ignores one other distinct possibility before we even get to Tor transfers.

There was a recent interesting article from McClatchy:

Prosecutors declined to discuss what evidence they have in the Manning case, but three Pentagon officials who cautioned that their information is two months old told McClatchy this week that as of that time prosecutors had no evidence tying Manning to Assange.

The prosecution is now working under the theory that Manning, who was arrested in May in Iraq and is being held at the Marine Corps base at Quantico, Va., provided the information to an unnamed third party who then passed the information to WikiLeaks, according to the officials, who agreed to speak only on the condition of anonymity because the case is still under investigation.

The information is months old, apparently, however if it was proven that Manning passed the data to an intermediary who then passed it on to Wikileaks/Assange then a posited conspiracy charge is impossible, unless the DOJ could prove that Mr Assange conspired with both Manning and the intermediary at least consecutively, if not simultaneously.

While it is an aspect of conspiracy law that other parties can join later in the conspiracy and be successfully prosecuted, the very idea of an intermediary would seem to preclude a wider conspiracy of three, in this case. Why have an intermediary to avoid potential liability and then include that intermediary in the conspiracy?

And what if Manning hypothetically passed on the data in the CD disc to that intermediary with no electronic transfer? And the intermediary then posted that to Wikileaks? No chance whatsoever of any subpoena on Twitter, Google or Facebook revealing anything to assist the DOJ, unless either party was foolish enough to send electronic messages like “Where and how do I send the files” and the reply “Instructions as follows…” On Twitter, Facebook, Gmail? It’s almost impossible to conceive of that happening.

Neither Manning nor Assange have a record of being so incredibly lax or incredibly stupid, (although one could say that Manning chattting online with Lamo was not being overly clever.)

Whatever combination or single method of data transfer was used, and considering the high probability that if it was in part at least, electronic, and most likely along a Tor pipeline (wiping out the revealing IP data within the Tor node system as I understand it) it must be said that for the prosecution to prove conspiracy theymust find evidence of Bradley Manning not only communicating with Julian Assange before any file transfers but that evidence must be circumstantially or otherwise strong enough to prove, beyond reasonable doubt:

CONSPIRACY SIMPLICITER
1) An agreement between Assange and Manning, to commit an act (contrary I posit to the Espionage Act) AND
OVERT ELEMENT
2) It was Bradley Manning who retrieved the files and burnt them onto a CD data disc as an overt act towards fulfilling the conspiracy OR
3) That it was Julian Assange or his agent/associate acting on his behalf or instruction who received the files from Bradley Manning (either directly or from an agent/associate/intermediary acting on Manning’s
instructions.)

As it turns out, the overt act element at (2) would appear to be, on the publicly available information not so difficult for the DOJ to prove, obviating the alternative at (3) or any other overt act.

Julian Assange is on the record as saying he wasn’t aware of the existence of Bradley Manning until he read about him in the media. Be that as it may (and I have no reason to doubt the truth of that) it is for the prosecution to prove conspiracy beyond reasonable doubt, not for Assange to prove his innocence.

Note that conspirators can be found guilty even if they don’t know other members of the conspiracy, per United States v. Monroe, 73 F.3d 129 (7th Cir. 1995)

Note that if Assange was charged with conspiracy under other sections such as s794 of the Espionage Act, the wording for conspiracy is practically identical.

On the subject of a potential charge of theft, (as an aside), or what down under we refer to as larceny, from the McClatchy link above, I concur with the following:

As for theft of government property, that law was designed for actual things, not electronic information to which the government never lost access, experts point out. Throughout Manning’s alleged downloading of the documents onto a CD, other government officials could still read the documents — an important difference, experts say, from taking hard copies out of a room to copy them.

On other points of conspiracy, from the NSW “Criminal Law Survival Kit” by John Stratton, barrister, which likely have equivalents in the USA:

This is for those who are interested in the finer points of conspiracy with down under flavour!

Co-Conspirators Rule.
Acts or statements of a co-accused in furtherance of a conspiracy may be admissible against a co-accused. Normally narrative accounts of what has already happened are not in furtherance of the conspiracy: Tripodi (1961) 104 CLR 1.

Statements of a co-accused in furtherance of the conspiracy are admissible to prove the existence of the conspiracy. Statements are only admissible to prove that an accused participated in the conspiracy if there is already reasonable evidence of the existence of the conspiracy. Reasonable evidence appears to mean the same as prima facie case, with a discretion to reject the evidence: Ahern (1988) 165 CLR 87, 62 ALJR 400, Masters (1992) 59 A Crim R 445 at 459. The statements by which the conspiracy is made are not admissible: Masters.

The jury should be warned that evidence admitted under the co-conspirators rule should be scrutinized with care: Chai (1991) 60 A Crim R 305. The jury should be directed what evidence is admissible against each accused: Checconi (1988) 34 A Crim R 160, Salib and Hanna (u/r, 8/12/89 ).

Conspiracy and Substantive Offences.
Where there is a substantive offence there should not be a duplication in penalties, and the penalty for the conspiracy should not exceed that set for the offence. Generally it is undesirable to profer a charge of conspiracy where a substantive charge is available: Hoar (1981) 148 CLR 32. In Commonwealth matters, the court may dismiss a charge of conspiracy if it is in the interests of justice to do so: Commonwealth Criminal Code section 11.5 (6).

Conspiracy with Party Unknown. [Common with US law per the case of Munro above]
A count of conspiracy can refer to a conspiracy with persons unknown: Gerakiteys (1984) 153 CLR 313 at 334, Harrison (1995) 79 A Crim R 149.

Conspiring to Commit the Impossible.
It is not an offence to join in a conspiracy to do an act which is impossible to commit : Barbouttis (1995) 82 A Crim R 432. This is not the case with Commonwealth offences: Commonwealth Criminal Code section 11.5(3).

In summary, on the publicly available evidence, and otherwise on the probability of the DOJ finding the needle among so many haystacks; assuming “co-accused” do not incriminate other “co-accused”: this writer is of the opinion that in the case of DOJ proving all the elements of conspiracy, particularly that an agreement occurred: is indeed, a “Bridge Too Far.”

Peter H. Kemp
Copyright 2011

http://wlcentral.org/node/889

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