Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism

Abstract

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be forward-leaning in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in order to facilitate an intelligent debate regarding the second.

In some respects, this is well-trodden ground. I and others have written previously of the government's sweeping capacity under 18 U.S.C. Section 2339B to prosecute potential terrorists who can be linked in some fashion to a designated Foreign Terrorist Organizations (FTOs). But it is becoming clear that the utility of Section 2339B is eroding in the face of several developments, most notably the ongoing decentralization of what might be called the global jihad movement. Simply put, it is becoming less common for a suspected terrorist to be vulnerable to a Section 2339B FTO-support prosecution. What, then, is the government's capacity for anticipatory prosecution when confronted with unaffiliated terrorism?

Setting aside the possibility of a pretextual charge based on some unrelated offense by a suspect, the basic options are a conspiracy charge under a terrorism-related provision such as 18 U.S.C. Section 956(a) or a charge under 18 U.S.C. Section 2339A, the lesser-known of the two material-support statutes. The article identifies the earliest plausible point of intervention under both options, and examines the extent to which indictments in post-9/11 prosecutions have stayed within these boundaries. My most notable conclusion, perhaps, is that Section 2339A can be and arguably has been used to create a capacious form of inchoate liability in circumstances that otherwise would have to be charged under the relatively-demanding standards of attempt.

Keywords: terrorism, prosecution, conspiracy, material support