AMERICAN SCHOLAR OF ISLAM ACQUITTED OF JIHAD AGAINST U.S. AFTER 9/11—20 YEARS LATER
ALI AL-TIMIMI WAS CONVICTED OF AIDING AND ATTEMPTING TO AID TERRORIST GROUPS BY URGING MUSLIMS TO TRAVEL ABROAD AND FIGHT AGAINST THE U.S. IN THE DAYS AFTER 9/11. THE FIRST AMENDMENT PROTECTED HIS SPEECH, A FEDERAL APPEALS COURT RULED ON FRIDAY
MALONE, NEW YORK Jan. 9, 2025
In a powerful and provocative First Amendment ruling of national significance, a Federal appeals court on Friday vacated the convictions of a Muslim-American scholar of Islam for allegedly fomenting Jihad against the U.S. in the days after 9/11.
“Ali Al-Timimi was convicted based entirely on words he spoke in the immediate aftermath of the Sept. 11, 2001 attacks—words that were inflammatory, disturbing, and deeply offensive, but that urged no concrete criminal plan and did not provide operational assistance for the commission of any particular offense,” US Circuit Judge Andrew Wynn wrote for the Fourth Circuit Court of Appeals in United States v al-Tamimi.
“Because the Constitution forbids criminal punishment for protected advocacy—however odious the content of that advocacy—we conclude that Al-Timimi’s speech remained protected under the First Amendment,” the court's 31-page long decision said.
READ THE DECISION BELOW
In 2005, Al-Timimi was convicted of abetting, conspiring, and attempting to contribute to terrorist groups. The evidence at his trial showed on Sept. 16, 2001 he met with and encouraged a group of Muslim men he knew to leave the U.S. and "join the mujahideen"—a universal term for irregular Muslim guerrilla fighters.
The group formed before 9/11, trained with firearms and practiced basic infantry combat with paintball games. Al-Tamimi was an esteemed scholar of Islam who studied in Saudi Arabia and lectured at the Masjid they all attended, the Dar al-Arqam Islamic Center in Falls Church, Virginia. Prosecutors called the group the “Virginia Jihad Network.”
One of the men in the group testified for the prosecution at al-Tamimi's trial and recalled al-Timimi saying "It doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.” According to the Government witness, al-Timimi added it was “obligatory on all Muslims to go and defend Afghanistan.”
Al-Timimi allegedly advised the men to travel to Pakistan, a country neighboring Afghanistan, and join a group called Lashkar-e-Taiba (LET) for training. The men did go to Pakistan and were trained by the group, but never went to Afghanistan to fight for the Taliban.
Based on these facts, the Fourth Circuit ruled Al-Tamimi should never have been convicted. All his speech was protected by the First Amendment. Judge Wynn wrote the opinion for the three-judge panel that decided the case, with Circuit judges Stephanie Thacker and Pamela Harris.
The Fourth's Circuit's decision relies heavily on the US Supreme Court's landmark 1969 decision in Brandenburg v Ohio. In Brandenburg, the High Court examined the constitutionality under the First Amendment of criminal charges against a Ku Klux Klan leader who made vague threats against Black and Jewish people.
In a decision that has withstood the test of time to this day, the Supreme Court in Brandenburg ruled only speech (1) “directed to inciting or producing imminent lawless action" which is (2) "likely to incite or produce such action” may be criminalized. Speech that does not meet this two-part test, the Court ruled, is fully protected by the First Amendment.
Applying the Brandenburg test to al-Timimi's speech, the Fourth Circuit found his words were only "vague and general." They "urged criminal activity that was neither sufficiently imminent nor sufficiently definite to lose First Amendment protection under Brandenburg."
Neither did Al-Timimi's words aid and abet a Federal crime.
"To be sure, he encouraged them," the decision pointedly admits. "But the most that he did to further the commission of these crimes was to advise individuals—in quite general terms—on how to react to the September 11 attack." That "advice" was "not participation but was merely encouragement," the court wrote, which made it fully protected by the First Amendment.
The court concluded its decision with a ringing defense of the First Amendment, explaining it "stands as a structural safeguard of our democratic order." Free speech "protection does not depend on the popularity or palatability of the message conveyed," the court declared. "On the contrary, it is most vital when speech offends, disturbs, or challenges prevailing sensibilities."
The court’s belated decision is cold comfort for Al-Timimi.
He was sentenced to life in prison for his convictions in 2005. He served 15 years in solitary confinement before he was released on home confinement in 2020 by order of the appeals court. His appeal took so long because "a multitude of procedural detours" slowed it down, the appeals court said—including allegations the US Government subjected al-Timimi to a secret domestic spying program.
The US Attorney’s Office for the Eastern DIstrict of Virginia, which prosecuted al-Timimi, did not immediately respond to a request for comment.
Geremy Kamens, the Federal Public Defender who presented Al-Timimi’s appeal, told The Free Lance News in an emailed statement he and al-Timimi are “incredibly relieved and gratified by this decision.” It was a victory for all Americans because it “reaffirms one of our democracy's foundational principles: that the government cannot criminalize speech simply because the ideas expressed are unpopular, offensive, or challenge those in power.”
“When courts refuse to allow convictions based merely on the expression of ideas—no matter how alarming those ideas may be to some—they vindicate the First Amendment's core promise and demonstrate the strength of our system of government,” Kamens concluded. “The protection of unpopular speech is what distinguishes a nation governed by law from one that suppresses the voices of dissent against those in power.”
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