I thought about it

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Jimmy Carter confessed to an interviewer that he had committed adultery in his heart. Fortunately for President Carter that is not a crime. But be careful what you think in this post 9/11 world. Sometimes the difference between thinking and doing is less than you expect. December 22, 2008, five Muslim men were convicted of conspiracy to kill American soldiers at Fort Dix, an army base near Philadelphia. They could be sentenced to life in prison.

The evidence in the case consisted mostly of recorded conversations and testimony by two informants who were paid to infiltrate this terrorist cell and gather evidence. The main informant was a legal immigrant who had served time for bank fraud, been arrested for fighting with a neighbor and had filed bankruptcy.

A conviction for conspiracy requires more than just talk, of course. You have to do something in furtherance of the plan. Two actions were alleged in this case. The men purchased assault weapons through the informants, who got them from the FBI, and practiced shooting them in the Pocono Mountains. The other action was scouting nearby military bases. Fort Dix was the preferred target since the father of one of the conspirators owned a business that delivered pizza to the base.

Talking about an attack, acquiring weapons and checking out targets sounds pretty dangerous. That is what you would do if you were going on a suicide mission to kill soldiers on their own base. The jury deliberated for 38 hours, rejecting attempted murder charges on the way to convicting the men of conspiracy. It sounds like the FBI did a good job following up on the lead they received from a Circuit City clerk who called after one of the men had him transfer to DVD video of a shooting session by men where they shouted jihadist slogans. Heads-up police work saved the day.

The problem here is what the evidence did not show. The prosecution conceded that the men had no plan for carrying out the attack. They were unhappy about the actions of the U.S. government, talked about it with their friends and shot assault rifles at a range in the woods. A lot of patriotic Americans do the same. The second amendment right to bear arms is partly in furtherance of the claim of the Declaration of Independence that “. . .whenever any Form of Government becomes destructive of these ends [life, liberty and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government. . . .”

The other big thing the evidence did not show was that these men were willing to die in the process of killing soldiers. The defendants included a cab driver, a convenience store clerk and three brothers who owned a roofing business. One thing we have learned about suicide jihadists is that they don’t go to work every day while they are planning their attack. The norm, to the extent one can determine such a thing, seems to be that suicide jihadists come from financially better off families and are recruited, trained and equipped by organizations. In the Fort Dix case there was no evidence of connection to any organization. The only help they had was the two informants. There was no one to celebrate their martyrdom.

The question here is whether or not we want our government to protect us by recruiting, equipping and training jihadists using informants who have nothing to lose and much to gain by producing defendants. It would have been terrible if these men had succeeded in entering Fort Dix and committing mass murder. Maybe it is worth wrongly imprisoning some big-mouthed malcontents to avoid atrocities like that.

The FBI ended the investigation and arrested the defendants after the purchase of automatic weapons. There was no plan for the attack yet, but one can assume that the FBI did not want to risk having weapons it provided used in any criminal activity, causing it to wrap the case up. When I teach conspiracy law my students are always amazed at how little it takes to make a case.

Talk and an action in support of the talk will do it. Cases usually come down to who the jury believes, not whether the necessary legal elements are present.

Had any murderous thoughts lately? Be careful who you share them with, particularly if your friend offers to get you a deal on the weapons.

Duane Ruth-Heffelbower, an experienced criminal defense attorney, teaches criminal evidence and advanced criminal law in the criminology and restorative justice studies program at Fresno Pacific University.

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