A quick background on Ali Al-Timimi:
Ali Al-Timimi, a former Islamic lecturer born in Washington, DC, was alleged in a federal indictment to be the spiritual leader of the Virginia Paintball Jihad Network, a group of eleven men indicted of crimes related to terrorism. Al-Timimi was indicted in 2004 and was convicted in 2005 of soliciting and engaging others to levy war against the United States and attempting to contribute services to the Taliban. Members of the Virginia Paintball Jihad cell testified at Al-Timimi's trial that shortly after September 11, 2001 he convinced several of them to travel to Pakistan to obtain training for jihad from the U.S. designated Foreign Terrorist Organization Lashkar e Taibah.[1]He was sentenced to life in prison plus 70 years without parole. -http://www.investigativeproject.org/profile/104
As a Supreme Court Justice, I believe that there are certain elements that must be considered in the case of Ali Al-Timimi and the most important of those is whether or not Al-Timimi's "questionable" speeches were in fact protected by the First Amendment. One writer, Kenneth Anderson, cleverly points out an important observation about the prosecution in this case saying, "If they wanted to establish a strong precedent that you can’t preach violence against the US, they did so – but that is the wrong precedent, historically and legally, under the First Amendment."
Ideally, time of war in itself should be an irrelevant platform for the prosecution against any individual. Standards should not change from one time to another. Therefore, as a rule applicable in almost any similar case, the prosecution must prove beyond a reasonable doubt that Mr. Al-Timimi's words advocated "inciting or producing imminent lawless action and [are] likely to incite or produce such action", as was decided in Bradenburg vs. Ohio in 1969. Two judges from that case went further to say that even "the clear-and-present-danger test has 'no place in the interpretation of the First Amendment'" (Tedford, 66). From the evidence provided, there is not enough evidence to conclude this stipulation beyond a reasonable doubt.
"In Al-Timimi’s case, however, the important requirement of imminence was not met. The men to whom Al-Timimi spoke did not arrive at terrorist training camps until weeks later, demonstrating that Al-Timimi’s speech was not immediate enough to pass the Brandenburg standard. Al-Timimi’s case is therefore troubling as precedent, because it indicates that the government may circumvent the imminence requirement of Brandenburg in the context of domestic terrorism prosecutions," -Elisa F. Kantor
There are many philosophers who would back the position of protecting Ali Al-Timimi's speeches, two of the more obvious being Alexander Meiklejohn and Thomas Emerson.
Meiklejohn identifies an absolute privilege for congressional debate and then argues for its extension to political debate in general. He believes that the First Amendment holds priority over the Fifth and is "absolutely privileged and may not be abridged-- not even by the clear-and-present-danger rule."
"The latter [form of speech] correlating the freedom of speech in which it is interested with the freedom of religion, of press, of assembly, of petition for redress of grievances, places all these alike beyond the reach of legislation limitation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever." -Alexander Meiklejohn
Thomas Emerson agrees with Meiklejohn in that he believes the "various tests used by the Court- such as bad tendency, clear and present danger, incitement, and balancing- not only are vague... but vary so much from case to case that they 'can hardly be described as a rule of law at all'" (Emerson, The System of Freedom of Expression, 1970). He goes on to explain his expression-action theory:
"The central idea of a system of freedom of expression is that a fundamental distinction must be drawn between conduct which consists of 'expression', and conduct which consists of 'action.' 'Expression' must be freely allowed and encouraged. 'Action' can be controlled, subject to other constitutional requirements, but not by controlling expression..." (Emerson, System).This would mean that Mr. Al-Timimi's speeches were all forms of expression, protected by the First Amendment. There were religious calls to actions, as Meiklejohn stresses should always be protected, and there was only expression- no direct action whatsoever on the part of Mr. Al-Timimi- which Emerson fully supports.
Therefore, Mr. Al-Timimi's words and expressions should be protected, and his sentence should be revised.
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