Julian Assange & Conspiracy: A Bridge Too Far?

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 they must 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:

1) An agreement between Assange and Manning, to commit an act (contrary I posit to the Espionage Act) AND
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

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

They'll have a hell of a time getting the physical evidence

The US might be able to show a link between Manning and third parties in the US, like at MIT, where five students had their laptops confiscated and searched, including David House, but there's no evidence to show that any of those people have been taken into custody or charged.

The intemperate and ill-advised fishing expedition seeking Twitter data from foreign nationals, already most probably in US possession from GCHQ surveillance data, given the well-known cooperation between NSA/NRO and GCHQ (http://www.fas.org/irp/program/process/echelon.htm), might turn up some useful information, at the expense of strained diplomatic relations between the US and Iceland, and the credibility of Twitter specifically and the notion of "cloud computing" in general.

If the data were sent to wikileaks via the Tor network, there might have been some negotiation in setting up such a transmission or series of transmissions, and that's probably what DoJ is looking for on the public side, but then they'd have to establish a link between the MAC address on Manning's and any third party's computer *and* the MAC address of a computer in the exclusive possesion and control of Assange. In other words, they'd have to seize the *actual* computer used on the Wikileaks end and get its MAC address, otherwise no link can be demonstrated. They've got to prove a physical connection between computers in the exclusive possession and control of Manning and Assange, then they might have to try to make the rest of the conspiracy case by appeal to res ipsa loquitur for the proof of the overt act, although this may very well not satisfy the prosecution's burden of proof beyond a reasonable doubt.

If, on the other hand, the data were sent to a Wikileaks non-US P.O. box on CD-ROMs, US agents would have to seize the CD-ROMs as evidence... if they're still in existence. Another way would be to seize any computer upon which a disk image of the CD-ROMs existed, and show by various indicia on that disk image that the files had been made by a computer in the exclusive possession and control of Bradley Manning; if third parties were involved, then there'd have to be evidence in a chain going back to Manning or whoever got the data in the first place. It's not impossible to do this, people keep evidence of crimes such as this, and it's good proof and admissible.

As to seizure of property without search warrants outside of the boundaries of the US, and not on US possessions, territories, or US military bases abroad, it's eminently possible. US agents can not only seize records and other items with impunity, but according to the US Supreme Court, in UNITED STATES v. VERDUGO-URQUIDEZ. 110 S.Ct. 1056, 29 ILM 441 (1990), the Court held that none of the usual Constitutional protections for people in the US apply. Moreover, it's possible under this decision for US agents to kidnap people and forcibly take them back to the US for interrogation and trial, as was done in Alvarez-Machain v. US, 107 F.3d 696 (9thCir.1996):

"In April 1990 the United States Drug Enforcement Agency (DEA) orchestrated the abduction and torture of Dr. Alvarez-Machain, a Mexican doctor, and transported him to the United States for prosecution ... On April 2, 1990, a team of men alleged to be hired by DEA agents working in Mexico, abducted Dr. Alvarez-Machain from his office in Guadalajara. They blindfolded him, transported him to an unknown location, and proceeded to beat him and subject him to electrical shocks. His kidnappers injected him with unknown chemical substances causing nausea and dizziness, denied him food and water, and forced him to lie face down on the floor for a long period of time. His life was repeatedly threatened, as well as the safety of his family. After enduring this torment for several hours, he was delivered into the hands of the DEA in El Paso, Texas. ... On April 10, 1990, Alvarez-Machain was transferred to Los Angeles and arraigned on charges of murder before United States District Judge Edward Rafeedie. Subsequently, Judge Rafeedie dismissed the charges, concluding that the court lacked jurisdiction over Alvarez-Machain because his abduction violated the extradition treaty between the United States and Mexico. United States v. Caro-Quintero, 745 F.Supp. 599, 601 (C.D.Cal.1990), aff'd sub nom United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir.1991). The Supreme Court reversed the dismissal, however, and Alvarez-Machain was forced to stand trial. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). As noted, the prosecution ended with a judgment of acquittal on December 14, 1992. After the acquittal, Judge Rafeedie revealed that the government had withheld potentially exculpatory evidence from the defense, in addition to failing to take him promptly before a magistrate after he reached United States territory under arrest. ... In dismissing the constitutional claims arising out of conduct in Mexico, the district court held that the United States Constitution does not protect Mexican nationals in Mexico from wrongs committed against them by United States government agents engaged in extraterritorial law enforcement. ... III. Extraterritorial Application of the Fifth Amendment Alvarez-Machain argues that the district court erred in holding that the Fifth Amendment due process clause does not protect aliens from actions taken by the United States abroad. We find it unnecessary to reach this issue. The issue is precluded because, under the instruction of the Supreme Court, in his criminal prosecution, we have already held that the actions taken by United States government agents or their employees against Alvarez-Machain in Mexico did not violate due process. United States v. Alvarez-Machain, 971 F.2d 310 (9th Cir.1992) (on remand from the United States Supreme Court)." see Alvarez-Machain v. US case: http://ftp.resource.org/courts.gov/c/F3/107/107.F3d.696.95-56121.95-5576...

Note that the US does not have any special privilege to break laws of foreign countries; if its agents are caught seizing property or kidnapping persons, the agents should come under the criminal jurisdiction of the countries in which they committed their crimes - as has been done in Italy: http://www.nytimes.com/2009/11/05/world/europe/05italy.html and also in Germany http://www.nytimes.com/2007/01/31/world/europe/31iht-germany.4421465.html

My bet is that the US will exercise its "extraterritorial jurisdiction" if Assange is extradited to Sweden, and pick him up at the airport and bundle him aboard a waiting Air America jet after he's been in Swedish custody for about 30 seconds. And I'll bet the destination will be Guantanamo, not Richmond, Virginia.

If the Government becomes a lawbreaker, it breeds contempt...

By the way only the 9th Circuit spoke about torture in its holding in the Alvarez-Machain case, the Supreme Court did not reach the question of torture in its finding in Alvarez-Machain, but Justice Stevens spoke about it briefly in his dissent:

from Justice Stevens’ dissent in US v Alvarez-Machain (1992):

“For example, provisions requiring “sufficient” evidence to grant extradition (Art. 3), withholding extradition for political or military offenses (Art. 5), … and granting the requested State discretion to refuse to extradite an individual who would face the death penalty in the requesting country (Art. 8), would serve little purpose if the requesting country could simply kidnap the person. As the Court of Appeals for the Ninth Circuit recognized in a related case, “[e]ach of these provisions would be utterly frustrated if a kidnapping were held to be a permissible course of governmental conduct.” United States v. Verdugo Urquidez, 939 F. 2d 1341, 1349 (1991)”


“It is true, as the Court notes, that there is no express promise by either party to refrain from forcible abductions in the territory of the other Nation. See ante, at 9. Relying on that omission, [n.10] the Court, in effect, concludes that the “Treaty merely creates an optional method of obtaining jurisdiction over alleged offenders, and that the parties silently reserved the right to resort to self help whenever they deem force more expeditious than legal process. [n.11] If the United States, for example, thought it more expedient to torture or simply to execute a person rather than to attempt extradition, these options would be equally available because they, too, were not explicitly prohibited by the Treaty. [n.12]”

and, in Note 33, Justice Stevens states:

“As Justice Brandeis so wisely urged:
In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).” Alvarez-Machain, at Note 33 of Dissent.

(Dissent at: http://www.law.cornell.edu/supct/html/91-712.ZD.html)

Of course, the Supreme Court went the other way, and held that US agents could do as they wished in extraterritorial “law enforcement” matters. Because of this, Assange is in peril if he is extradited to Sweden, a country where there is significant informal cooperation between US and Swedish intelligence and law enforcement agencies.

Peter Kemp's legal writing

I like it. Please continue publishing.

he should continue publishing

he should continue publishing Neil Kitson and I do actually respect his quality of resourceful information and great effort despite what i wrote below. I have a legal background and heritage myself.

we need to defend our interests against the USa and Sweden whether we are from the UK or OZland.

However if it had been China, Russia, India, Brazil or even Iran posing "the charges" it's unlikely the dialogue would be happening like this.

That is my bone to pick. Just because the USa thinks it knows best, everyone has to take it all so seriously. Why? Do they really deserve this much attention and effort in all the circumstances?

What further really annoys me is that the USa seem to behave and think that their own domestically produced laws now automatically apply internationally. This is how they are behaving and the more we fuel this justification, even by analysing whether they have a case, the more we give credence to a concept which is surely juridically totally wrong in the first place!

ps I really respect Australians btw. Canadians too. We just have to stand up now, all together and I think the times ahead will be stressy but we will win.

legal view on usa

JA is not even a US citizen. I am tired of your legal opinions. The USa does not own the world. Bog off USa.

I suppose if he had blown Chinese secret data you would be arguing whether he should be extradited to China on conspiracy and espionage charges?

Errr no.

Wake up Peter and Australia. The USa does not own the world.

Subjective reality

Unfortunately, it thinks it does.

Australia has had many demonstrations of this arrogant and destructive attitude from the U.S. Their attitude to Julian Assange is only a recent example.

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