Glueless charges and elastic logic

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

Glueless charges and elastic logic
Sunday, 09 20, 2005

As always, many self-anointed legal experts have made comments on the charges against Michael Ray Aquino and the three unnamed officials who received e-mails from him and the FBI agent, Lean Aragoncillo. There is even talk about extradition of these three officials. Credit their zeal and lack of scholasticism for making the comments without reading the charges. So let us read the charges to see if there is sufficient legal glue in them to make them stick. New York-based Filipino lawyer Rolando Gamalinda gave us the rundown.

The charge sheet accuses Aquino of two offenses: acting as a foreign agent under Section 951 of the US Code, and conspiracy to defraud the US by impeding, impairing, obstructing, and defeating the government’s lawful function in protecting classified information against unauthorized disclosure under Section 371.

Section 951 defines a foreign agent as “an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official.” But Aquino, who is no longer employed by the Philippines, does not come under this definition. The charge sheet insinuates that Aquino and Aragoncillo were spying under the direction of some Philippine officials. Yet, its supporting affidavit proves the contrary.

The affidavit of Special Agent Edward Finnegan, quotes Public Official 1 as having said: “JM (Aragoncillo’s alias) I find all the information that you are sending me very useful. Hope you will continue to send more. Just for curiosity, who else at our end share these information?”

Later, the affidavit quotes Public Official 2 as having said: “If there are confidential matters that you wish to share, don’t hesitate because I was fully trained in this endeavor.”

JM is quoted later to have said: “I will continue to send you updates if needed. However, if this is becoming a nuisance, please let me know.”

Does one who merely hopes to receive more information control the transmitter? How about one who says if you wish to share, don’t hesitate? Don’t the exchanges clearly show that JM was in control of what he wanted to send or not? He was, therefore, acting on his own volition, not upon orders of the officials. What nails this conclusion is JM’s own statement, “If this is becoming a nuisance, please let me know.” Clearly, he was sending unsolicited info, which he feared was becoming a nuisance.

So will this charge stick in court? No. There is no legal or factual glue here.

Let us now go to the more ominous-sounding conspiracy theory. A conspiracy is defined as a secret agreement between two or more persons to perform an unlawful act. The exchanges above clearly show that JM was acting alone when he obtained the classified info from the US government. One official hoped that JM would send more; the other told JM not to hesitate if JM wished to share more. JM himself hoped he was not being a nuisance by sending unsolicited info. One cannot conspire with oneself, so there is here no conspiracy.

More damning to the conspiracy theory is the comment “who else at our end share these information?” Can you have an agreement when you don’t even know who is with you? Who are you agreeing with?

In the case of Aquino, the charge sheet valiantly tries to save face by alleging that Aquino e-mailed Aragoncillo’s wife attaching a file that was classified. From this statement, it would appear that Aquino was also obtaining info from the US government, proving he was acting in concert with Aragoncillo. Nice try, but it falls short.

The classified file actually came from Aragoncillo. Aquino made some comments to the file, then sent it back to Aragoncillo, through the wife. The comments appeared to be corrections of “observations” by the US of the Philippine situation, which shows that the “classified” info was actually second hand, stale beer. Perhaps that was the secret - that it was erroneous.

Now, it is elementary in US constitutional law that Congress can only punish conduct, for speech is protected by the First Amendment. So it is doubtful that Aquino can be punished for commenting on Aragoncillo’s “Secret classified file.” Again, there is no legal glue here to make it stick.

They used to say in the old West of Dubya’s grandfather, that if you draw a gun, be sure you are ready to shoot. More importantly, if we may add, be sure you know how to shoot. This charge sheet is susceptible to a motion to quash (dismiss) for failure to state an offense. Even if it went to trial, I doubt that any jury will convict on such flimsy, even irrelevant evidence.

But the prosecution has already won the media war, by using superlatives like “spying’, conspiracy, etcetera. This is what is called in the US, "seeding the jury." Since the jury would come from ordinary people, there is enough probability that whoever will be selected has already read the media spin.

But I still believe in the common sense of the ordinary person. This case is akin to the current Philippine administration, and the self-anointed legal experts – all fluff, no substance.

For comments about this website:Webmaster@tribune.net.ph

The Daily Tribune © 2005