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Thursday, March 06, 2014

More on United States v. Abu Ghayth

In its opening statement to the jury in the conspiracy and material support trial against Sulaiman Abu Ghayth, about which I posted a blog entry yesterday, the government did not allege that Abu Ghayth helped plan 9/11 or any other terrorist attack.  Instead, the government alleged that Abu Ghayth was part of a "global conspiracy" and used his words to recruit fighters to the Al Qaeda cause.

Rachel VanLandingham, a prominent national security scholar and excellent person, has provided a thoughtful counterargument to my first blog post.  Given that as well as the prosecution's opening statements, a few additional thoughts are in order, after the jump...

VanLandingham notes that the Abu Ghayth case poses no troubling conflict between the First Amendment and national security; recruiting folks to murder certainly deserves no First Amendment protection.  This is perhaps true in the national security context--VanLandingham notes that the U.S., under international law, has the right to kill Abu Ghayth as a wartime enemy.  But what about the domestic criminal law context?  Abu Ghayth is, after all, being tried in an Article III court for a set of crimes.  I agree that the Abu Ghayth case is an easy one both normatively and pursuant to the very low bar set for speech-as-material-support by the Supreme Court in Holder v. Humanitarian Law Project.  But HLP has been subject to great criticism because it criminalizes speech, so my inquiry doesn't end with that case.

This is especially so given that the prosecutors promised the jury only propaganda and attempts at recruitment from Abu Ghayth.  And they did so based on a global conspiracy theory.  While I have no doubt Abu Ghayth was a bad guy, the global terrorism conspiracy trope is the very same one used against communists in the WWII era; socialists, anarchists, and Wobblies in the WWI era; and even labor unionists in the 19th century.  While modern-day terrorists certainly do pose a much greater threat than these older groups, a bit of skepticism is generally in order, if only to avoid the evidentiary problems that come with FRE 801(d)(2)(E) and an alleged conspiracy of thousands.  We should be as careful regarding these rules in the Abu Ghayth trial as in any other.

What, then, of Abu Ghayth's clear dedication to the Al Qaeda mission, employment in the group's inner circle, and likelihood that his words truly did persuade a number of people to join with Al Qaeda?  Put another way, the government will have no difficulty proving that Abu Ghayth acted either under the control or direction of clearly criminal members of Al Qaeda, or at least coordinated his efforts with them.  On that count, his (inevitable?) conviction will be evidentiarily reliable, normatively untroubling, and well within the constitutional bounds set by HLP.

But what about more difficult cases?  If Abu Ghayth has no First Amendment protection, then shouldn't Brandenburg v. Ohio have come out differently?  The KKK was a terrorist organization, and the defendant was an active member who advocated violence against African-Americans and Jews.  No one imminently joined the fight, and so his speech and assembly were protected.  We'll see if the government can prove that someone was likely to engage in imminent lawless action from Abu Ghayth's words, but after HLP that's irrelevant because the question isn't one of incitement but of material support.

I'm not saying that Abu Ghayth should be acquitted, I'm not defending his actions, and I'm not even saying his speech should be protected (and I'm not saying it should NOT be protected--I simply want to raise the issue).  But his actions, which appear to amount to advocatory speech, challenge the law as it relates to the intersection of the First Amendment, group crime, and terms like "recruitment" and "material support", which are open to different definitions.  After all, as Justice Holmes said in Gitlow v. New York, "Every idea is an incitement."

Posted by Steven R. Morrison on March 6, 2014 at 05:35 PM | Permalink


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I suppose we will have to wait and see how the district court charges the jury with respect to any First Amendment defense that may be offered, but in what seems to be its central allegation, the indictment does not allege some sort of abstract "material support" for a foreign terrorist organization in the form of speech; it alleges that the defendant "unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed to kill nationals of the United States." As Marty Lederman notes, neither Yates, Scales, or Noto were solicitation cases, but they were conspiracy cases, as is Abu Ghayth. As Yates, Scales, and Noto explain in distinguishing between protected advocacy and unprotected conspiracy, "[t]he essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something." Yates, 354 U.S. at 324-25. Brandenburg did not purport to overrule Yates, Scales, or Noto, and it is entirely silent on the law of conspiracy and other forms of agreements to commit crimes. If the government can prove beyond reasonable doubt that Abu Ghayth did not simply condone violence, but actually agreed with others to kill Americans, "now or in the future," I don't see how this prosecution raises First Amendment problems unless one is prepared to repudiate not only Humanitarian Law Project, but Yates, Scales, and Noto as well.


Posted by: Larry Rosenthal | Mar 7, 2014 6:10:11 PM


Thanks for your thoughts. Your comments raise two of my own. First, if Brandenburg had been subject to a material-support-for-KKK law, the validity of his conviction would have been dubious to me and others who think HLP was wrongly decided, at least as far as the First Amendment goes. This amounts to an opinion that the HLP Court "got it wrong." Second, even advocacy can, and does, lead to criminal liability under the current material support laws. Witness the Abu Ghayth case (if indeed no more than propaganda will be adduced at trial) and the numerous other, lower-profile, more normatively problematic cases. If a law that prohibits advocacy (like the Brandenburg law and O'Brien hypothetical law that you advance) is unconstitutional, then maybe the material support laws, when they reach advocacy (whether independent or under the control/direction/coordination of an FTO), are unconstitutional as applied.

Posted by: Steven R. Morrison | Mar 7, 2014 10:41:26 AM

On the question of solicitation raised by Larry Rosenthal, from what I've read there doesn't appear to be a charge in this case that abu Ghayth solicited anyone to commit a crime. Nor, IIRC correctly, did Yates, Noto or Scales involve any solicitation charges. In any event, the First Amendment limits on solicitation charges are anything but settled, see http://balkin.blogspot.com/2011/07/begolly-indictment-and-first-amendment.html.

As to your broader question about Brandenburg and HLP, Steven, if Ohio (or the U.S.) had enacted a law prohibiting the provision of aid -- any aid -- to the KKK at the direction or control of the KKK, and Brandenburg had been acting under such direction or control when he made his speech, then yes, he could have been convicted for the same advocacy. (Of course, it was not unlawful to give aid to the KKK.) But that would have been true not *because* his under-control-or-direction assistance took the form of advocacy, but *despite* that fact. The law under which he was convicted, by contrast, was specifically designed to prohibit advocacy, as such. It was a not a permissible regulation of conduct that reached speech in one particular application. (Imagine, for sake of analogy, that O'Brien had been convicted for burning his draft card under a statute prohibiting criticism of the war. That conviction would have been unconstitutional, even though the conduct in question was the same as the conduct for which he was constitutionally penalized under the draft-card burning statute.)

Posted by: Marty Lederman | Mar 7, 2014 9:04:16 AM


Thanks for your comment, helpful as always. To answer your question, I don't think the prosecution has to prove solicitation. Under the HLP formulation, speech that falls far short of solicitation can be criminalized. Can the government prove that Abu Ghayth solicited murder? Let's say it can--that's probably not too far a stretch. But whether it can or not doesn't matter because the speech doesn't need to be solicitation; it just has to provide material support. And the Supreme Court in HLP defined what speech can be material support quite broadly, suggesting that the control/direction/coordination limitation satisfied the First Amendment. Thus, even speech that only praises the work of Al Qaeda can be material support. This conclusion strikes me as problematic from a constitutional standpoint. BUT, assuming the premise that speech in praise of an FTO may be protected, applying that premise to the Abu Ghayth case (which would be applied in the defendant's favor) strikes me as problematic from a normative standpoint because it seems clear that Abu Ghayth committed a deontological moral wrong through his actions, produced a consequentialist harm by supporting Al Qaeda, and violated a reasonable interpretation of the material support laws. I have no problem with Abu Ghayth being found legally guilty and morally condemnable; I just don't think that First Amendment law has come to adequate terms with membership crime, especially (but not only) where the group involved is worldwide, large, disparate, and whose contours are sometimes hard to discern.

Posted by: Steven R. Morrison | Mar 6, 2014 8:51:00 PM

I'm afraid that I don't grasp why this prosecution should be any more troubling than any other in which a defendant is prosecuted for soliciting another to commit a crime. Even if the substantive crime is not yet "imminent," an actor's specific intent to solicit the commission of a crime, either now or in the future, is sufficient to support a conviction under Yates, Scales, and Noto, without any need to rely on the perhaps more controversial holding in Humanitarian Law Project.

As for Brandenburg, the statute in that case permitting conviction on proof of no more than that that the defendant advocated or taught "the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform," or that the defendant "justif[ied]" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or "voluntarily assemble[d]" with a group "to teach or advocate the doctrines of criminal syndicalism." In that context, the Court required proof of imminent lawless conduct so as not to circumvent the First Amendment's bar on prohibiting mere expressions of belief. Had the Ohio statute required proof beyond a reasonable doubt that Brandenburg had solicited the commission of a crime, it seems that the statute would have readily been sustained under Yates, Scales, and Noto. And, as far as I can tell, the prosecution in Abu Ghayth seems to require proof of solicitation in just this sense, no?

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Mar 6, 2014 8:13:50 PM

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