The Good Wife Takes on Terrorism (and Kind of Botches It)

by Kevin Jon Heller

Tonight’s episode of The Good Wife featured a Muslim-American man — a former Army translator in Afghanistan — who sues the U.S. government for torture and ends up being accused of supporting al-Qaeda.  It was quite a fascinating episode; it’s not everyday that a mainstream television show is built around Executive Order 13324, which blocks property and prohibits transactions with persons involved in terrorism.  Unfortunately, though obviously well researched, the episode made a significant criminal-law error. After the Lockhart/Gardner lawyers drop their civil claim, prosecutors (state ones, but we can overlook that) charge him with “conspiring to aid and abet terrorism” because he brought medicine to a high-ranking al-Qaeda official whose daughter was dying of an unspecified disease. In one respect, that charge was clever: 18 USC 2339A (“providing material support to terrorists”) specifically exempts the provision of medicine from the statute.  The problem is that, as a matter of criminal-law theory, it is impossible to conspire to aid and abet a crime.  Indeed, the Sixth Circuit specifically held as much in a well-known 1992 case, United States v. Superior Growers Supply, for reasons that are explained in the Justice Department’s Criminal Resource Manual:

The government in United States v. Superior Growers Supply, 982 F.2d 173 (6th Cir. 1992), charged a conspiracy to aid and abet the manufacture of marihuana. 982 F.2d at 177. The problem the court faced was how to logically combine the crime of conspiracy, which does not require proof of the underlying substantive offense, with an aiding and abetting offense, which does not exist without one. If the charge was merely conspiracy to traffic drugs, the government would have to prove only an agreement to traffic drugs. Had the charge been aiding and abetting drug trafficking, the government would not have to prove any agreement existed, but would have to prove that the defendant(s) knew others were trafficking drugs and the defendant(s) intended to assist in the unlawful act. The court noted that in order to conspire or agree to assist others to traffic drugs, one would have to know that the others are trafficking drugs. Otherwise, all that is proved is that there was an aiding and abetting of a possible criminal occurrence, which is not a crime. In other words, without the actual underlying crime, there can be no knowledge or intent to further it. Id. at 178.

British courts have reached the same conclusion, most recently in R. v Kenning [2008] EWCA Crim 1534 (24 June 2008).

Unfortunately, the writers of the episode backed themselves into a corner by having the translator deliver medicine.  That simply isn’t criminal, whether under the awful material-support regime created by 2339A and Holder v. Humanitarian Law Project or under normal principles of criminal responsibility.  The writers should have had him deliver a blanket to the al-Qaeda official for his dying daughter — then he really would have been guilty of material support!

http://opiniojuris.org/2011/11/07/the-good-wife-takes-on-terrorism-and-kind-of-botches-it/

2 Responses

  1. Thanks for this very interesting post.  Although it is impossible to gleam much information from a TV show, there are two ways of interpreting the idea of conspiring to aid and abet.  The first is to interpret the conspiracy element as a substantive offense, in which case the prosecutor would be trying to make an inchoate crime out of aiding and abetting terrorism.  The second is to interpret conspiracy as a mode of liability, in which case the prosecutor is trying to join two modes of liability together.  Although that’s probably not at issue here — it is a really interesting phenomenon and rather under-theorized.  It’s also incredibly important as courts like the ICC adopt indirect co-perpetration, an ad hoc combination of two more established modes of liability known as indirect perpetration and co-perpetration.  The general question is when such combinations are permissible?

  2. Response…
    but, intellectually, can one conspire with others to “materially support terrorism”?  I did not see the tv show, but was that what the writers were considering?

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