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,
The US Department of Justice has issued a subpoena on Twitter for material related to Birgitta Jónsdóttir, including her personal details and, it can be assumed, all her private direct messages.
Ms Jónsdóttir twittered thus:
department of justice are requesting twitter to provide the info - i got 10 days to stop it via legal process before twitter hands it over.
While this is not in any way confirmed, it appears that while the subpoena is from the DOJ it may actually emanate from the Grand Jury so far held in secret (but often mentioned or alluded to in the mainstream media) to examine whether or not Wikileaks people in general and Julian Assange in particular can be charged with an offence.
Subpoenae are a normal part of a criminal justice system and ordinarily there are restrictions against abuse, for both prosecution and defence.
The normal common law test for subponae is the "legitimate forensic purpose" test. Arguable for and against (with respective case law in mind in whatever jurisdiction one happens to be in), the test is for the purpose of eliminating or significantly reducing "fishing expeditions: to reduce waste of a court's time and to eliminate the speculative and wide subpoena that would require truckloads of documents to satisfy it.
Further to my open letter on those inciting murder upon Julian Assange, this op ed style post again responds to those who say that Julian Assange should be kidnapped, executed, murdered or otherwise be "whacked", to use a favourite Hollywood gangster expression. It is a much expanded variant of the open letter to the inciters at Wikileaks Central.
The CIA and/or US military forces have been invoked by some, as the agents who would carry out such extra curial "services" of which it must be said, such actions both incitement and carrying the incitement out, are undoubtedly unlawful. Doubtless the early December Assange-illegal-posturing Prime Minister of Australia would not officially, take kindly to the latter course of action.
The web roll of inciters or borderline inciters is growing.
OPEN LETTER
TO:
THOSE INCITING MURDER UPON JULIAN ASSANGE AND/OR MEMBERS OF HIS FAMILY.
We, among many law abiding citizens of the world deplore and condemn, as applicable, your utterances and writings calling for the extra judicial ie unlawful: kidnapping/assassination/murder/physical harm of Julian Assange, his supporters, Wikileaks workers or members of Assange's family.
We remind you of the laws in your country and others against incitement, inter alia:
Common law:
Codified Incitement Law:
(1) Australian Commonwealth
11.4 Incitement
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(3) United Kingdom
Extradition 3
Backtracking a little from the UK’s Extradition Act (in the Extradition 1 post) it is necessary to understand that the origin of that legislation comes from the European Arrest Warrant (“EAW”) regime in turn based on the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.(Pdf)
It is also necessary to understand that where interpreting legislation like the UK’s Extradition Act (that will be applied in Assange's hearing) and if finding ambiguity or uncertainty, resort can be made--ordinarily to parliamentry second reading speeches in countries like Australia for example
—to examining, in this case, that very document of the Council Framework Decision.
The Preamble to the Council Framework Decision states in part:
Now that Julian Assange is free on bail, it is perhaps time to lighten up a little.
2084
A SHORT SATIRICAL STORY
Marty Hari was overwhelmed and it was 3rd March 2084. The man from http://www.dikkileaks.org/exposure had leaked the data from http://www.PublicControl.com/usa, exposing a horrible secret two days previously. All top US officials and politicians had exempted themselves from obeying CyberTrojan law. US authorities, highly embarrassed, were baying for his blood while he was sanitising the Swedish data in his London apartment and watching holographic TV around his computer.
Lieutnant Scheisserkopf at Pentagon Newspeak was organising parades of military solidarity and giving daily briefings on the threats to US national security posed by Dikkileaks, saying:
Marty Hari is an enemy of the state and Attorney General Holdup is examining the provisions of CyberTrojan-22.
CyberTrojan-22 states that agents enforcing CyberTrojan-22 need not prove that CyberTrojan-22 actually contains whatever provision the accused violator is accused of violating.
Marty found something else not to his liking, at all.
To avoid thinking of his worst nightmare come true, he reflected on world history from the early 21st century. Global warming, food shortages, water wars: a biblical pestilence of disease and floods, fires and famines. Governments had to take drastic action to curb population growth. It all came from an original idea of a president's wife, later a Secretary of State, lastly President who in her last will and testament gave her flash drive to Congress with all her accumulated ideas and proposals.
It's taken a while before some detailed information has come to light on the arguments presented by prosecutor and defence at the bail hearing yesterday.
The Telegraph reports:
http://www.telegraph.co.uk/news/worldnews/wikileaks/8202524/WikiLeaks-Ju...
Earlier, during the two hour long hearing, the court was told that the “strength” of the evidence was poor.
His legal team argued that particularly the rape allegation was wrong and if the case was tried in Britain the case would not be classified as such a crime.
This refers or alludes to, apparently, the rape allegation being in the nature of a relatively minor sexual molestation in which case it seems to me, it then doesn't fit within the 12 month European Arrest Warrant system requirement of an offence where the maximum sentence must be 12 months or more for extradition to be valid. If in the UK such an alleged rape evidence was prima facie (on the face of it) low category molestation, per UK law, attracting less than 12 months custodial sentence, then it would not appear to qualify as an extraditable offence.
INTERLUDE-BAIL APPLICATION 14/12/2010
The principles of bail in both English and Australian law are close. Without looking at bail legislation in the UK (no time sorry) these are most of the factors in NSW Australia that a court will consider in a bail application, with comments as to how they apply, or not,
Firstly there are the presumptions for bail, which have a set of legislated determinants which I won't go into but are an indicator of how a court will ordinarily look on a bail application from the outset. Defence makes submissions on presumptions, prosecutor might have a different view but most often agree on presumption.
OFFENCE: Circumstances of the offence, Strength of prosecution case, Likely penalty on conviction.
Only the strength of the prosecution case is really relevant here and while this is a factor for bail it is not a factor ordinarily for the extradition proper. (Will post on that later, an EU human rights "backdoor" might allow some of it through, per the UK Extradition Act.)
This is the first of a series looking into the extradition process by which Sweden is seeking to have Julian Assange extradited from the UK.
While I'm not a European lawyer, our Aussie system has a lot in common with the UK, which is logical since our legal heritage came from the UK.
Here's my take on a preliminary examination of legislation and it's application to the Swedish extradition application.
Firstly, there is the European Arrest Warrant system (EAW) by which signatory parties have a common warrant form in all the different languages which for the purposes of extracting relevant information (and not going through tortuous online translations from Swedish), I shall cite the UK version, but keep in mind it's the UK form designed for UK prosecutors to extradite from other category 1 territories.
That form template is here:
http://www.cps.gov.uk/legal/d_to_g/extradition/annex_b/
Scrolling down we find the following:
Statement
IGNORANCE OF THE LAW IS NO EXCUSE, BUT…
A fundamental maxim of western criminal justice systems is that a citizen cannot say “I am excused because I didn’t know the law”.
And that is an interesting concept which has a counter maxim which I’ll get to, in the context of a false analogy which has arisen on the web related to the Swedish prosecution of Julian Assange, which needs addressing:
http://bigthink.com/ideas/25314
"There seems to be a double standard in terms who counts as a “good victim.” Suppose your investment adviser isn’t paying out returns as promised. You don’t want to press charges, you just want your money. So, you go to the prosecutor’s office, the prosecutor hears you out, and she says, “You got mixed up in a Ponzi scheme. That’s fraud. Do you want to press charges?”
Up to this point, you just wanted help to get what’s yours, but now an expert has re-framed your experience in legal terms. Is anyone going to argue that you weren’t really defrauded because you didn’t realize you were a victim until someone explained your rights?"
That is a horrible analogy to time delays in making a complaint of sexual assault.
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