incitement to seditious conspiracy?

[Marty Lederman]

The Al-Timimi indictment can be found here:

http://www.usdoj.gov/usao/vae/ArchivePress/SeptemberPDFArchive/04/TimimiINDC092304.pdf

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 (http://www.usdoj.gov/criminal/cybercrime/bombmakinginfo.html), the AG 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 Eugene and others think that the Brandenburg "imminence" requirements should apply under either or both of these two circumstances.



----- Original Message ----- 
From: "chesner" <chesner at law.wfu.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Thursday, September 23, 2004 10:02 PM
Subject: incitement to seditious conspiracy?


> Apropos of the thread earlier today pointing to the tension between expressive 
> freedoms and certain terrorism-related issues, a grand jury in the Eastern 
> District of Virginia today indicted a Virginia man, Ali al-Timimi, on charges 
> described by CNN as "counseling people to engage in a conspiracy to levy war 
> against the United States, to aid the Taliban, and to use firearms in violent 
> crimes." (That language does not purport to be a quote from the indictment, by 
> the way, and it is quite possible that this mischaracterizes the actual 
> charge.)
> 
> This case arises out of the "Virginia Paintball" prosecution that concluded a 
> few months ago with the conviction of several defendants for conspiring to 
> levy war against the United States, among other things.  The fact pattern in 
> that case boiled down to the following: a group of men attending the same 
> mosque began meeting privately to discuss jihad; some in the group had 
> military training, and began to impart that training to the others through 
> regular paintball games; some in the group traveled to Pakistan and received 
> training from a militant group (these camps aren't just in Afghanistan); after 
> 9/11, at least some of the men began discussions about making their way to 
> Afghanistan to fight against U.S. forces there.  The link to the new 
> defendant, al-Timimi, is that al-Timimi is said to have urged the men to put 
> their beliefs into action.
> 
> If this is the basis for the al-Timimi indictment, it seems to represent a 
> classic incitement case (perhaps framed as participation in the conspiracy via 
> the encouragement he provided - not unlike the seditious conspiracy conviction 
> of the "Blind Sheikh" in the 1990s).  If this is correct (again, I haven't 
> seen the indictment), it will be quite interesting to see how Brandenburg 
> performs in this climate.
> 
> CNN's story is at: 
> http://www.cnn.com/2004/LAW/09/23/lecturer.indicted/index.html
> 
> Bobby Chesney  
> 
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> 
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
> 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20040924/19a79c1c/attachment.htm