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Wednesday, March 19, 2014

Abu Ghayth Takes the Stand

In a rare move in terrorism (and all criminal) cases, Sulaiman Abu Ghayth took the stand today.  We therefore don't have to rely on the government's version of events, which is often strained and unreliable when it comes to conspiracy charges in times of national crisis.

Abu Ghayth testified that just after 9/11, bin Laden summoned him to ask his advice.  The very next day, Abu Ghayth began to make propaganda videos and give speeches "based on talking points from Bin Laden."  Cross examination will be fascinating, and the government will certainly elicit from Abu Ghayth that he had a "personal agreement . . . [to] do anything he could within his capabilities as a religious scholar and experienced orator to assist” Bin Laden and Al Qaeda.

I have argued that the First Amendment right of assembly should protect even criminal conspiracies when they pose no likelihood of imminent lawless action.  This could, in theory, protect Abu Ghayth from criminal charges.  On the other hand, Abu Ghayth's case represents the point at which my argument breaks down.  If Abu Ghayth was willing to do "anything he could" to help Al Qaeda, why should the government not be able to indict?  On the other hand, Abu Ghayth limited this "anything" to religious activity and speech, so should he have any First Amendment protection?

One reason that Abu Ghayth's case troubles me less than many other membership crime cases is that the facts are emerging from the defendant himself, not from the government.  But this is legally irrelevant: when one wants to support a group by otherwise protected advocatory speech alone, should that person be able to do so?  I have documented many cases where the normative (and perhaps constitutional) answer is "yes."  But asked in light of Abu Ghayth's case, the normative answer is "no"; what of the constitutional answer?


Posted by Steven R. Morrison on March 19, 2014 at 06:28 PM | Permalink


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"I have argued that the First Amendment right of assembly should protect even criminal conspiracies when they pose no likelihood of imminent lawless action"

Why does 'religious belief' offer an exemption from generally applicable laws?

Posted by: Barry | Mar 21, 2014 9:55:54 AM

In what sense? Oregon v. Smith notes that general applicable laws that burden religious practice are acceptable.

There are statutes (RFRA etc.) that allow exemptions basically to protect religious practice, free exercise specifically enumerated in the First Amendment. Religious belief is deemed of special importance, a special need and right of human beings.

But, if religious belief results in actions that clash with the law, there is no complete "exemption," even statutory exemptions balanced with other compelling interests, particularly harm to others.

Posted by: Joe | Mar 23, 2014 12:32:51 PM

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