Free Speech Crux of Terrorism Case

In the Justice Department’s war on terrorism, the case of Sami Omar Al-Hussayen opens a new frontier.

Unlike other alleged terrorists the department has prosecuted since the Sept. 11 attacks, Al-Hussayen is not accused of training at an Al Qaeda camp in Afghanistan or assembling a cache of firearms. He did not attempt to explode a bomb on an airplane.

His weapon, the government alleges, was the Internet.

The 34-year-old computer science student is on trial in U.S. District Court here, charged with helping to design about a websites that included lectures and edicts from radical clerics and links to sites operated by a group designated as terrorist by the State Department.

The government argues that the services were rendered as part of a plot to raise money and recruit foot soldiers for terrorist missions in Israel and Chechnya.

But his supporters say Al-Hussayen is being prosecuted for his beliefs -- or the opinions of others that he was simply passing on. They argue that he is not unlike thousands of people who take to the Internet every day expressing views which, however objectionable, are protected by the 1st Amendment.

Whether Al-Hussayen is a peace-loving family man -- as the defense argues -- or a cunning criminal is being sorted out at a trial expected to last into June.

The prosecution is attempting to call two defendants convicted in other terrorism cases who will testify that they were motivated, at least in part, by the writings on the Al-Hussayen websites.

The defense plans to present a group of former CIA counterterrorism operatives who think the prosecution is unjust and a waste of the country’s resources.

The case also is turning out to be a major test of Bush administration terrorism policies, in a region that long has been a crucible for debate about government power. The case was brought under a federal anti-terrorism law that was expanded by the Patriot Act, which Idaho’s libertarian congressional leadership has been in the forefront of attempting to combat.

“People here are pretty darn suspicious of the powers granted to the government in the Patriot Act,” said Elizabeth Brandt, a law professor at the University of Idaho. “The Al-Hussayen case plays into those fears.”

U.S. District Judge Edward Lodge, who is overseeing the case, also presided over the 1993 trial of two white separatists who were charged with murdering a deputy federal marshal in a standoff with the FBI at Ruby Ridge in northern Idaho.

The men were acquitted after their lawyers, including one representing Al-Hussayen, argued that the government was trying to persecute the defendants for their unorthodox beliefs. Now the lawyer, David Nevin, says history is repeating itself.

Al-Hussayen, the son of a senior Saudi education official, had been studying in the U.S. for nine years and had almost completed a doctorate in computer security at the University of Idaho at Moscow.

Then, 15 months ago, federal agents broke into his campus home, where he lived with his wife and three children, and took him to prison. The arrest shocked the local Muslim community, where Al-Hussayen was known as a gentle soul who helped organize a local blood drive after the Sept. 11 terrorist attacks.

Federal agents had been monitoring his e-mail account and phone records for months after a bank teller noticed large cash transactions in his account and called the FBI. He initially was charged with visa fraud, based on intercepts showing that he was doing nonprofit and other work while he was supposed to be studying.

The case against him soon escalated. The government indicted him on three counts of providing material support to terrorists because of his Web work for a Michigan-based group, the Islamic Assembly of North America. The government long has suspected the group of having ties to terrorism, but has never charged it.

In March, U.S. Atty. Gen. John Ashcroft said the indictment against Al-Hussayen was evidence that the Justice Department was aggressively pursuing “those who use their specialized computer skills to knowingly and intentionally support ... terrorist conspiracies.” Each of the terrorism counts carries a potential sentence of as much as 15 years in prison.

Prosecutors contend Al-Hussayen was an Internet maestro who orchestrated the websites with violent jihad material to foster terrorism.

Among the most incendiary postings: four fatwas, or religious edicts, by religious clerics that he added to an Islamic Assembly of North America-linked site in spring 2001 that endorsed “martyrdom attacks.” One of the edicts sanctioned crashing airplanes into enemy targets. The sites included links to the official website of the Islamic Resistance Group, or Hamas.

“These are hateful words,” David Deitch, a Justice Department trial attorney told the court recently. “What does he do? He provides it to millions of people.”

Al-Hussayen also helped moderate an e-mail group that the government alleges became a forum for jihadist wannabes, and eventually attracted more than 2,000 members. Government surveillance turned up postings that included an “urgent appeal” to Muslims in the U.S. military asking for help identifying potential U.S. targets in the Middle East.

But his supporters say if he is guilty of anything, Al-Hussayen is guilty of trying to foster debate. The most inflammatory material on the sites, they contend, was written by others. And even if he were deemed responsible for it, they say, the statements were still protected under the 1st Amendment.

The U.S. Supreme Court held in a landmark 1969 case that the government could not punish advocacy of illegal action unless it was directed at “inciting or producing imminent lawless action.”

“I could go down to the park and stand on a soapbox and give this speech,” Nevin said in court during an argument this month over the admissibility of an unusually vile lecture extolling suicide bombings that was posted on one of the sites.

He added that since Sept. 11, hundreds of other Middle Eastern websites -- including some operated by witnesses for the government -- contained many of the same materials, if only for informational purposes, and no one had been charged.

The law under which Al-Hussayen was charged is itself under attack. A federal judge in Los Angeles found in January that the prohibition against providing “expert advice or assistance” to terrorists was unconstitutional because it was so open-ended and vaguely worded that it encompassed activities protected under the 1st Amendment.

The wording was added by the Patriot Act to expand a 1996 federal law that made it a crime to provide various kinds of “material support” to terrorists.

David Cole, a professor at Georgetown Law School who represented a civil rights group in the Los Angeles case, said the statute “resurrects guilt by association” because it required little proof that a defendant sought to further illegal activities. Taking it to the extreme, he said, a newspaper could get in trouble under the law for posting a link to an Al Qaeda website that included an interview with Osama bin Laden.

He calls the Al-Hussayen case “the farthest reach of any of the government’s post 9/11 terrorism prosecutions.”

The defense has lined up some unlikely witnesses and advisors: three former CIA agents who say the trial is a waste.

“When it comes to dealing with terrorists ... my view is we should kill them and not belabor the issue,” says David Manners, a former CIA station chief in Jordan.

But after reviewing the file in the Al-Hussayen case, he said he was “mystified” by the government’s priorities.

“The more I read, the more I was convinced that this was just a misguided prosecution,” he said. “What angers me most is that these are resources that could be spent pursuing real bad guys.”

Prosecutors have said that they were not punishing speech, but rather the technical and financial assistance that Al-Hussayen provided that caused others to commit illegal acts.

In court papers, they compared his conduct with that of a person who provided a gun to a friend, knowing that he intended to use it to commit armed robbery but not necessarily believing the robbery was the right thing to do.

So far, the judge in the case is keeping the lawyers guessing. He has prohibited the government from introducing e-mails from the chat room that were posted by others, and he noted that a federal statute protected people who merely recirculated information on the Internet.

But he also has allowed the jury to see some of the fatwa-laden websites, over defense objections that the material was unduly prejudicial.