Conspiracy or Free Speech?

A jury has recently convicted a Muslim cleric for exhorting his followers to fight against the United States:

A prominent Washington-area Muslim cleric was convicted Tuesday of urging his followers days after the September 11 attacks to go to Afghanistan and help the Taliban fight U.S. military forces.

Ali al-Timimi, 41, was convicted on all 10 counts of an indictment brought in U.S. District Court in Alexandria, Virginia.

The Islamic scholar remains free on $75,000 bail pending sentencing, which Judge Leonie Brinkema has scheduled for July 13.

Possible sentences for the charges on which he was convicted range from 30 years to life in prison.

The jury had deliberated for a week after a trial that centered on al-Timimi's conversations at a meeting with young Muslim men on September 16, 2001.

Three of the followers traveled to Pakistan and received military training but never went into Afghanistan.

Some of al-Timimi's followers were charged separately and convicted earlier as members of a "Virginia jihad" organization.

Government prosecutors said al-Timimi had urged the men to defend the Taliban regime as part of a global war against the United States and the West.

Defense attorneys acknowledged al-Timimi had spoken out against the U.S. government and expressed support for the September 11 attacks, but they insisted he was free to express his controversial views and had only suggested the men leave the United States for their own protection

There's something fishy about this story. Under Brandenburg v. Ohio, the government may not convict someone for urging others to violate the law (or even take up arms against the United States) unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such [imminent lawless] action." Under the facts as recounted in this news story, what al-Timimi did, however hateful, was constitutionally protected. His exhortations to his followers did not lead immediately to violence or violations of the law.

In fact, the actual charge against al-Timimi was criminal conspiracy. To convict him of conspiracy there would have to be an agreement between him and his followers to fight the U.S. and an overt act by one or more of his followers. Going to Pakistan and training for the military would be such an overt act.

Thus, what the case really turns on is whether the prosecution had credible evidence that this was more than a religious leader criticizing the U.S. in overheated religious sermons, and urging his followers to fight to the death against the Great Satan (which would be protected speech), and was in fact an agreement between the cleric and his followers to fight the U.S., with steps taken by those followers to carry out the agreement. Putting the matter in this way, however, shows that there can sometimes be a fine line between criminal conspiracy and protected expression. It is not a crime to say that all Muslims should resist the United States and fight against it in Afghanistan. It is, however, a crime to recruit soldiers for that war. The line between the two situations may sometimes be difficult to draw.

If you have additional information about the proof that the government put on (see for example, this article), or the charges against al-Timimi, please feel free to link to it in the comments section.

UPDATE: Marty Lederman sends some comments he wrote back in September, before the trial was held:

The Al-Timimi indictment can be found here.

The basic charges are based upon the federal aiding and abetting statute, 18 U.S.C. 2, which by its terms punishes as a principal not only those who "aid" or "abet" a crime, but also those who "counsel" or "induce" a crime. In the DOJ Report a few years ago, the Attorney General wrote that "[w]e are not aware of any modern case in which culpability under § 2 was premised solely on "counseling" in the form of encouragement (or advocating that a crime be committed), without any actual aid or assistance to the principal. Insofar as § 2 were construed to permit culpability in such a "pure" advocacy situation, it is likely -- at least absent special circumstances, such as implicit coercion or a fiduciary relationship between the pertinent parties -- that the prosecution would be required to satisfy the Brandenburg standards." [Disclosure: I helped to draft the Report.]

There are two facts alleged in the indictment that might take the case outside the Brandenburg model:

First, the exhoration to crime was not public, but relatively private. ("On or about September 16, 2001, at the meeting at Kwon’s house, ALI AL-TIMIMI told the conspirators that what he said at the meeting must be kept secret.") And, as the DOJ Report noted, "Professor Kent Greenawalt has argued that the Brandenburg requirements (such as the requirement of "imminent" criminal conduct) should be relaxed in the case of private, nonideological solicitations to crime, even where there is no inducement or threat, but only persuasion. Kent Greenawalt, Speech, Crime and the Uses of Language 261-65 (1989). While this argument has some force, we are not aware that any court has yet endorsed it."

Second, there is a single allegation of what Eugene would call "crime-facilitating" speech: "On or about September 17, 2001, ALI AL-TIMIMI advised Yong Kwon and Khwaja Hasan how to reach the Lashkar-e-Taiba camp undetected." It is arguable that Brandenburg would not be applicable to this discrete bit of conduct -- true aiding and abetting. Indeed, the DOJ Report suggests that it would not be.

I'd be very curious to hear whether . . . others think that the Brandenburg "imminence" requirements should apply under either or both of these two circumstances.

Marty also points out that since he wrote this, the indictment might have been amended; moreover jury instructions might have clarified the issues; and the jury might have found that the Brandenburg test was satisfied.