Acquittal in Internet Terrorism Case Is a Defeat for Patriot Act
A federal jury in Idaho on Thursday acquitted a Saudi computer student of charges that he spread terrorism on the Internet, handing the Justice Department a resounding defeat in a case that turned on a provision of the USA Patriot Act.
The case of Sami Omar Al-Hussayen, 34, in Boise had become a test of the scope of U.S. anti-terrorism laws, including a provision of the Patriot Act that targets secondary players.
Al-Hussayen was arrested in February 2003 in an early morning raid at his campus home at the University of Idaho in Moscow. He was accused of designing websites and posting messages on the Internet to recruit and raise funds for terrorist missions in Chechnya and Israel. His attorneys argued that he was being prosecuted for expressing views protected by the 1st Amendment.
The jury of four men and eight women delivered their verdicts after deliberating seven days. The trial lasted seven weeks and featured a convicted terrorist who said he was influenced by Al-Hussayen’s Web writings, and a retired CIA operative who said he thought the government’s case was a waste of time.
Al-Hussayen was acquitted on all three terrorism counts filed against him, as well as one count of making a false statement and two counts of visa fraud. Jurors could not reach verdicts on several other false-statement and visa-fraud counts, and a mistrial was declared on those charges.
“I think they need to focus on real terrorism cases. There are plenty of ways to do that without dismantling the Constitution,” David Nevin, Al-Hussayen’s lawyer, said in an interview after the verdict. “The message [from the jury to the Justice Department] has to be, ‘Do it the right way.’ ”
Prosecutors had not decided whether to seek a retrial of the lesser false-statement and visa-fraud counts.
“We are naturally disappointed by the acquittals on some charges, and the deadlock on others,” U.S. Atty. Tom Moss said in a prepared statement. “But my office and the Department of Justice remain committed to aggressively pursue those who provide illegal support to terrorists.”
The verdicts point up a little-known reality of the Justice Department’s war on terrorism since the attacks of Sept. 11, 2001. While it has won scores of highly publicized guilty pleas in terrorism-related cases -- often by dropping the most serious charges -- its trial record is mixed.
It has taken only two other major terrorism-related cases to trial since the Sept. 11 attacks, and at least some defendants have been acquitted in each.
In one case involving an alleged domestic “sleeper cell” in Detroit, the judge has threatened to throw out all three convictions because prosecutors allegedly withheld exculpatory information.
The case against Al-Hussayen, the son of a retired Saudi education minister who had been studying in the U.S. for nine years, raised questions from the start.
His arrest 16 months ago shocked the local Muslim community in the college town of Moscow, where he was known as a family-oriented father of three who shortly after the Sept. 11 attacks organized a blood drive and a candlelight vigil that condemned the attacks as an affront to Islam.
He was eventually charged under a section of the Patriot Act that makes it illegal to provide “expert advice or assistance” to terrorists. The provision was declared unconstitutional by a federal judge in Los Angeles in January, although that ruling was not binding on the Idaho case.
“In some respects, this was the broadest reach in all of the government’s anti-terrorism prosecutions,” said David Cole, a Georgetown University Law Center professor.
“When President Bush and [Vice President] Dick Cheney say, ‘You have not shown me a single abuse of the Patriot Act,’ I think people can now say, ‘Look at the Sami Omar Al-Hussayen case -- a case where the government sought to criminalize pure speech and was resoundingly defeated.’ ”
Al-Hussayen was accused of helping to design about a dozen websites in conjunction with a Michigan-based group, the Islamic Assembly of North America, which the government has long suspected of having ties to terrorism but has never charged.
The sites included lectures and edicts from radical clerics and links to sites operated by a group designated as a terrorist organization by the State Department. Among the most incendiary postings: four fatwas, or religious edicts, by religious clerics that Al-Hussayen added to an IANA-linked site that endorsed “martyrdom attacks.”
One of the edicts sanctioned crashing airplanes into enemy targets.
Prosecutors alleged that it was part of a plot to raise money and recruit foot soldiers for terrorist missions in Israel and Chechnya. The visa and false-statement charges stemmed from allegations that he was doing nonprofit and other work while he was supposed to be studying.
Nevin argued that his client was being prosecuted for his beliefs -- or the opinions of others that he was simply passing on -- and that he was not unlike thousands of others who take to the Internet every day expressing views that, however objectionable, are protected by the 1st Amendment.
The defense was so confident that it presented only a single witness -- a former top CIA operative who testified as an expert on terrorist recruitment methods and who questioned the government’s premise that people are motivated to become jihadists by what they read online.
The expert, Frank Anderson, a former CIA Near East division chief, said on Thursday:
“I take satisfaction in the verdict. But I am embarrassed and ashamed that our government has kept a decent and innocent man in jail for a very long time.”
Some jurors said they had no confidence in the government’s case, and that prosecutors had failed to adequately make a connection between the websites and wrongdoing.
“The evidence was not exact,” said juror Dessa Lagerstrom of Eagle, a Boise suburb. “I am sure it was a difficult case for them to put together. But a lot was left up in the air.”
John Dickinson, a retired University of Idaho computer-science professor who was Al-Hussayen’s PhD advisor, said the verdict brought relief.
“If this case had gone the wrong way, it would have sent a chilling message to every international student in the country that if they dare volunteer for something they could be arrested,” he said.
Dickinson said he remembers the day Al-Hussayen was arrested, when scores of FBI and other law enforcement personnel descended on Moscow, and “interviewed every Muslim student in the community.”
“I was interviewed by FBI agents for two hours. They said [that] whatever I knew about Sami was just the tip of the iceberg, that there was all this other information that was going to come out,” Dickinson recalled. “At some point, some prosecutor should have asked the investigators to either get more evidence or let the guy go.”
Even if he is not retried on the remaining charges, Al-Hussayen remains subject to a separate immigration case, in which a judge has ordered him deported to Saudi Arabia.
His wife and three children have already returned to the country rather than fight their own deportation orders. Dickinson said he believed that Al-Hussayen would welcome the opportunity to return home to be with his family.
Times researcher Lynn Marshall in Seattle contributed to this report.