The weapon is a law aimed not at masterminds or bombers but at secondary players who provide terrorists with "material support and resources." The phrase provides a flexible net, and prosecutors have used it to charge 57 people in Detroit; Lackawanna, N.Y.; Portland, Ore.; Seattle; Tampa and other cities since Sept. 11, 2001. But some federal judges, uneasy about the provision's vagueness and its potential to squelch free speech, have begun to poke holes in it. Now, the case of Saudi graduate student Sami Omar al-Hussayen could help determine how aggressively the government will be able to pursue alleged promoters of terrorism: people who raise money, offer advice or amplify calls to violence.
So who is Sami Omar Al-Hussayen? According to the Journal,
No one disputes that Mr. Hussayen, a 34-year-old Ph.D. candidate in computer science, is a loving husband, a gentle father of three young boys and an esteemed leader of the Muslim community in this small town.....Mr. Hussayen, who has been held in jail on immigration charges for more than a year, asserts he's innocent and opposes terrorism in any form.
The Oregonian reports:
Al-Hussayen, born to an upper middle class family in the Saudi capital of Riyadh, arrived in the United States in 1994 for computer studies. He attended universities in Indiana and Texas before transferring to the University of Idaho in 1999 for a doctorate in computer network security........Al-Hussayen, whose defense is being funded by the Saudi government, has pleaded not guilty. Defense attorney David Nevin said that Al-Hussayen was exercising his rights to speech and religion. There is no evidence that Al-Hussayen advocated violence, Nevin said...."He is a man of his word and is respected for his wisdom, kindness and gentle nature," Nevin said in court filings. "He's not someone who believes in resorting to violence," Nevin told The Oregonian. "He didn't provide material support to terrorists. That's just simply false."
The defense argues this is a case about free speech and freedom of association. The Government disagrees. According to the WSJ:
The Justice Department acknowledges in court filings in the Hussayen case that people have a right to praise terrorist groups. But prosecutors argue they are seeking to punish not advocacy but acts: the raising of funds for Hamas and recruitment of terrorist troops. Mr. Hussayen's expert advice, they say, was comparable to "bomb-making instruction or piloting an aircraft." They also note that thus far other courts have refrained from broadly invalidating the material-support statute.
The law in the 9th Circuit supports the defense:
In January, a federal judge in Los Angeles ruled that the prohibition against giving "expert advice or assistance" to terrorists -- a linchpin of the Hussayen case -- violates First Amendment free-speech rights. That ruling came in a civil lawsuit filed against the Justice Department by American organizations that said they wanted to encourage peaceful activities by Kurdish and Tamil groups that the U.S. government has designated as terrorist organizations. The judge, Audrey Collins, concluded that criminalizing expert advice could inhibit humanitarian groups from offering guidance on international law and negotiation.
In December, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco upheld an earlier ruling in the same litigation, in which Judge Collins used similar reasoning to strike down as unconstitutionally "vague" the terms "personnel" and "training" as used in the statute. The Justice Department has appealed the panel's ruling to the full Ninth Circuit, which has jurisdiction over nine Western states, including Idaho. The department is expected to appeal Judge Collins's expert-advice ruling as well.
Since 1969, the Supreme Court has followed this standard:
The Supreme Court said government can punish advocacy of illegal action, but only if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
According to the Oregonian article, the Saudi Government is funding Al-Hussayen's defense.
