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Wednesday, March 05, 2014

Sulaiman Abu Ghayth, Membership Crime, and the First Amendment

The criminal trial of Sulaiman Abu Ghayth is beginning in the Southern District of New York.  Abu Ghayth is charged with conspiracy to kill U.S. nationals, conspiracy to provide material support and resources to terrorists, and providing said material support.  See United States v. Sulaiman Abu Ghayth, No. S14-98-cr-1023-LAK.  The initial (not superseding) indictment is here.  The indictment alleges that Abu Ghayth “urged others to swear allegiance to Bin Laden, spoke on behalf of and in support of al Qaeda’s mission, and warned that attacks similar to those of September 11, 2001 would continue.”  In addition to these allegations, the government has alleged the following overt acts: Abu Ghayth agreed to assist Bin Laden by “giving speeches and appearing in al Qaeda propaganda” for the purpose of recruitment to al Qaeda; praised the September 11 attacks; praised other terrorist attacks; and participated in other al Qaeda propaganda.  It is also alleged that Abu Ghayth was “engaged in planning and perpetrating federal crimes of terrorism against the United States.”  More after the jump...

It is clear that Abu Ghayth was part of Bin Laden’s inner circle.  He appeared with Bin Laden in videos, is believed to have been a “senior Bin Laden advisor,” and is Bin Laden’s son-in-law.  Bruce Hoffman, a Georgetown University terrorism expert, noted that Abu Ghayth’s “hands may not be as directly drenched in blood” as other al Qaeda members, but he was “nonetheless at the vortex of Al Qaeda’s operations at arguably the most important moment in the movement’s history.”  Read about it here.

As I mentioned in my introductory blog post, I work at the intersection of First Amendment, membership crime, and a bit of national security, so the Abu Ghayth trial is of particular interest.  My general view is that the government often overreaches when it comes to post-9/11 terrorism indictments, whether this overreach involves questionable government stings, United States v. Aref, 285 Fed.Appx. 784 (2d Cir. 2008), governmental misconduct, Rabea Chaudhry, Effective Advocacy in a Time of Terror: Redefining the Legal Representation of a Suspected Terrorist Facing Secret Evidence, 8 UCLA J. Islamic & Near E. L. 101, 124-25 (2008-2009) (Government’s use of unreliable informants and deportation of defense witnesses prior to trial in United States v. Koubriti); Barry Tarlow, Terrorism Prosecution Implodes, The Detroit ‘Sleeper Cell’ Case, 29-FEB Champion 61, 61, 63-64, 66 (2005), or normative overreach.  Dora W. Klein, Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, and the Fourth Amendment, 46 San Diego L. Rev. 161, 201 (2009).  That said, I also know that government prosecutors know things I do not, and so I retain a healthy amount of intellectual humility in the name of assuming that prosecutors generally act in good faith.

In my current article, Brandenburg for Groups, I argue that assemblies and associations (and their individual members) — even criminal conspiracies and other criminal groups — should be protected until they present a likelihood of imminent lawless conduct beyond the assembly or association itself.  In a departure from Brandenburg v. Ohio, there would be no need to prove an intent to produce such lawless conduct.  Proving an individual’s intent is difficult enough; determining a group’s mens rea is even more difficult, and would probably prevent prosecutors from doing their jobs effectively and within normative and constitutional bounds. 

In my article, I provide a number of examples that show how the Brandenburg for Groups test would be effective.  The Abu Ghayth trial puts Brandenburg for Groups to the test, so to speak.  On one hand, it appears that Abu Ghayth only “spoke” but was deeply involved in al Qaeda.  In this, he may be similar to Anwar al-Awlaki, whose targeted assassination remains highly controversial.  On the other hand, Abu Ghayth's speech most likely did provide substantive (material?) support to al Qaeda.  This case is another example of the persistent conflict between First Amendment rights, membership crime such as conspiracy, and national security.  As I show in Brandenburg for Groups, this conflict has been with us since the advent of substantive First Amendment rights in the World War I era.  It also raises the constitutional catch-22 presented in Holder v. Humanitarian Law Project: we have the right to independently advocate for foreign terrorist organizations, and we have the right to be members of such organizations.  But when we are members and speak in favor of the organization, our speech appears to be unprotected, at least if it is done under the control or direction of the organization.  Do two constitutional rights make a wrong?  Should Abu Ghayth’s First Amendment claim prevail, or at least be at issue, or should the court reject it and prevent the jury from considering it?

Posted by Steven R. Morrison on March 5, 2014 at 01:36 PM | Permalink


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"So the fact (if true) that Abu Ghayth was a formal member of Al Qaeda (which of course gives the U.S. the authority under IHL to kill him, given that we’re in a non-international armed conflict with AQ, at least per Congress and the Administration) is simply gravy for a 2339B MST prosecution."

Whatever it's accuracy under US domestic law, this statement is simply incorrect as a matter of international law. Recruiting and propagandizing do not qualify as direct participation in hostilities; they are indirect participation. So not only can a recruiter or propagandizer not be directly targeted while recruiting or propagandizing, those acts do not -- and cannot -- establish an individual's membership in an organized armed group. The only individuals who qualify as members of an organized armed group are those that assume a continuous combat function in it, and recruiting and propagandizing are not combat functions.

Posted by: Kevin Jon Heller | Mar 7, 2014 4:07:02 PM

Thanks Steven, great blog! This case doesn't pose a "troubling" conflict between the First Amendment and national security at all. Just as one wouldn't cry "First Amdt" as protecting one's conversation with a hit man to kill one's mafia rival on the Sopranos, the First Amdt similarly doesn't and shouldn't protect conversations/ speech that assist terrorist organizations in fulfilling their criminal objectives. And recruiting folks to murder on behalf of a group surely constitutes that type of speech.... I don't see a rational reason to set the bar so high that foreign (emphasis on that) terrorist groups can grow and thrive, based on recruiting and propaganda activities such as the defendant here allegedly engaged in, hence allowing such life blood to be provided to these organizations out of misplaced 1st Amendment concerns that rightly protect domestic groups, not foreign terrorist organizations. The distinction is critical, because the 1st Amdt's primary goal is to protect political speech in order to allow our democratic experiment to thrive here, and hence shouldn't be expanded to protect cheerleading (recruiting and propaganda) for murderous foreign terrorist organizations, regardless of the imminence of the threat that recruiting and propaganda poses. And regardless whether one is a card-carrying member of that terrorist organization or not. Whether you're paid to carry out a hit for the mob, carry out the hit for the mob because you're mobster yourself, or (as in Abu Ghayth's case) make the numerous phone calls to hire the "hit men" and coordinate numerous hits (and make those calls as either a member or non-member working in coordination with the mob), -- 1st Amendment protections don't apply.

That is, I think you’re over-emphasizing the fact that Abu Ghayth was a member and a propagandist. As you point out, 2339B criminalizes simply being a propagandist without being a member, if such propaganda duties are done at the direction and control or even simply in coordination with the group (“coordination” was added by Chief Justice Roberts in Holder). The Holder HLP opinion emphasized that passive membership in a FTO is not criminal; though of course being a member goes a long way in proving the element of direction/control/coordination. But it’s not a necessary condition for criminal conduct under 2339B – 2339B is much, much broader than membership, and it is that enormous expanse which is truly frightening. It essentially criminalizes all beneficial conduct (conduct that can be construed as providing assistance) performed at the direction or control or even in coordination with a designated foreign terrorist organization. So the fact (if true) that Abu Ghayth was a formal member of Al Qaeda (which of course gives the U.S. the authority under IHL to kill him, given that we’re in a non-international armed conflict with AQ, at least per Congress and the Administration) is simply gravy for a 2339B MST prosecution.

Also, I disagree with your characterization of proving intent – of course it’s difficult, but prosecutors have to do it all the time. And really, is it that difficult to prove a group like Al Qaeda’s mens rea, when they’ve proclaimed it for years? If we’re going to talk about criminalization of membership, it’s that very scienter element that acts as our constitutional bulwark per the Court in Scales. It seems that you’re mixing apples (speech) with oranges (membership) and advocating for a speech standard in the area of criminal membership, when in fact a standard already exists for the criminalization of membership, which 2339B adroitly (really, a brilliant move) side steps. Scales requires that for membership to be criminal, the gov’t needs to prove “active” membership, plus knowledge of a group’s illegal objectives, plus specific intent to further those objectives. If the “active” component of membership is shown by way of speech, so be it – no Brandenburg standard needed, as long as one can prove specific intent to further group’s illegal aims. Sure seems Abu Ghayth has met those elements, if we were talking about a statute that criminalizes AQ membership.

But 2339B skips the membership element, and jumps directly to the conduct instead: here, at least in part, the conduct at issue is Abu Ghayth’s speech. And instead of membership as the associational nexus, 2339B replaces it with “under direction/control/coordination” – easier to prove that membership, particularly given terrorist groups’ often informal organizations – and much, much broader. And instead of the Scales scienter element – intent to advance groups’ illegal aims – 2339B simply requires knowledge that said coordinated activity is so coordinated with a group that is either designated a FTO or has engaged in terrorist acts. Hence the critical Scales element of intent to advance group’s criminal aims is missing in 2339B – as has pointed out by many others, one can be a little old grandmother in Pasadena writing a check to Hamas for their children’s hospital in the West Bank, or making recruiting speeches in downtown Pasadena per a request from Hamas for folks to join Hamas to work in that hospital, and as long as the grandmother knows that either Hamas is an FTO, or that it has committed terrorist acts in the past, she is guilty of providing material support to terrorism for the speech and for the check, separately (assuming that “material” means something in the statute, and hence requires that the check be for more than a few dollars).

I really like your idea of adding rigor to the type of speech that can be criminalized per 2339B, but the type of speech is (tongue in cheek a bit here) set out in the statute (expert advice or assistance) and the Sp Ct has already, and quite clearly, set the standard very low, seemingly at any speech that can conceivably be assistance to a terrorist group. One can argue that’s too low, but if a group is a terrorist organization, the Court is telling us it’s within Congress’s authority to set the limits on what type of interaction one can have with that group. And they are clearly telling us don’t talk to or associate with terrorist groups, beyond chitchatting about the weather or one’s kids day at school. And given the nature of these groups, is it really that outrageous for Congress to do so?

Chief Justice Roberts in Holder held that even praiseworthy speech as the type at issue in that case – helping a FTO seek peaceful resolution of its claims through international organizations – was constitutionally criminal per the 2330B schema. Hence if that’s the amazingly low floor the Ct is willing to set for protected speech in association with a terrorist organization, then clearly Abu Ghayth’s outrageous speeches on behalf of Al Qaeda (urging others to kill civilians) is material support as well – and rightly so. 9/11 couldn’t have happened without folks like this defendant engaging in such criminal conduct. It's the cases on the other end of the spectrum, such as Holder v HLP, which are troubling to me.......

Posted by: Rachel VanLandingham | Mar 6, 2014 10:25:25 AM

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