Guantanamo By Other Means: Conspiracy Prosecutions and Law Enforcement Dilemmas After September 11

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The recent conviction of Jose Padilla is not a victory for the rule of law. Instead, it signals the onset of a new phase in the post-9/11 shadow government of detention, interrogation, and surveillance. The use of conspiracy charges in cases of alleged political violence has always heightened the risk of false positives. The preventive paradigm that emerged after September 11 has combined this risk with the convenient capacity to erase the shadow government's mistakes. The government's broad interpretation of liability under section 956, analyzed previously by Professor Chesney in an important piece, accentuates conspiracy's costs. By charging Padilla with conspiracy to murder, maim, and kidnap abroad based on his application to attend a terrorist training camp, the government attributed plots and plans to Padilla that far exceeded the narrow scope of his alleged agreement. Padilla's conviction was surely expedient in light of the government's earlier assertions, never mentioned at trial, that Padilla had sought a dirty bomb. However, the expedience of the conviction only heightens the risk that the government will use section 956 conspiracy charges to target people because of who they are, or whom the government fears them to be. As Robert Jackson warned during an earlier time of crisis, that temptation is a central threat to the rule of law. Prosecutors should reject this temptation, while preserving conspiracy's virtues as a legitimate weapon against terrorists. Where suspects have prior knowledge of attacks and appear to be a common strand in a web of wrongdoing, as in the case of the blind sheik Abdel Rahman, the use of stings and informers is appropriate. This is also true where the suspects are already engaging in illegal conduct, as in the undocumented aliens taking target practice in the Fort Dix case, or have special knowledge or experience, as in the JFK Airport arrests. The best prosecutors will use this powerful weapon when necessary, after deliberation about the always elusive balance between false positives and false negatives. Courts should also play a gatekeeping role by more closely scrutinizing the fit between the defendant's acts and the agreement required under federal conspiracy law.