Inchoate Terrorism: Liberalism Clashes with Fundamentalism
McCormack, Wayne, Georgetown Journal of International Law
I. CONSPIRACIES AND TERRORISM A. World Trade Center I and the Embassy Bombings B. Defining the Terrorist Conspiracy C. Investigating and Intervening in the Conspiracy II. MATERIAL SUPPORT PROSECUTIONS A. Treason and Related Offenses 1. Trading with the Enemy 2. Treason and Political Freedom 3. The Communist Conspiracy and the Right of Association B. Designated Terrorist Organizations and the Right of Association 1. Prohibiting Material Support 2. Vagueness of "Training" and "Personnel" 3. The Designation Process 4. Mens Rea of Material Support 5. Conclusions on Material Support III. How IMMINENT IS IMMINENT? CONCLUSION
Ali al-Timimi was convicted in June 2005 of crimes that essentially amounted to inducing others to conspire to aid the Taliban. (1) He was a lecturer at an Islamic Center in Falls Church, Virginia, teaching about Islam, its history and culture. The specifics by which he induced others to engage in criminal conspiracies consisted primarily of (1) a meeting at another person's house on September 16, 2001, at which he "told [others] that the time had come for them to go abroad to join the mujahideen engaged in violent jihad in Afghanistan" and at which he "advised" two persons "how to reach [a] training camp undetected" (2) and (2) a session at his own home in October of 2001 at which he "told ... others that they were obligated to help the Taliban in the face of an attack by the United States." In addition, he used highly inflammatory language in speaking to his followers about the wrongdoing of the United States. (3) These overt acts were taken in the context of his knowledge that some of his audience owned assault-type weapons and were seriously considering going to paramilitary training camps in Pakistan to train as mujahideen fighters in Islamist organizations.
In the culture clash between religious fundamentalism and the rest of the world, (4) al-Timimi is on the wrong side. His words certainly encouraged young Muslim men to violence and contributed to the atmosphere of hate and fear that permeates religious fundamentalist paranoia. (5) But by human rights standards consistent with liberal values, did he commit a crime? Western liberalism has struggled for centuries with trying to forestall violent or other harmful conduct while permitting maximum play of individual freedom. This tension has played out in two areas of Anglo-American law related to inchoate crime: the limits of conspiracy law and protection for advocacy as part of freedom of expression.
Conspiracy law has not been overtly tied to freedom of expression, but the requirement of both an agreement and an "overt act" serves to prevent punishment of desires that fall short of a live threat. (6) Even when an agreement alone would constitute a crime, the watchword for U.S. law with regard to when advocacy can be punished has been "imminent," reflecting how close the advocacy must be to producing a substantive harm. (7) That word is now matched in the customary international law of international criminal tribunals in defining the crime of "incitement to prohibited conduct." (8)
Counter-terrorism prosecutions in the United States take place primarily under conspiracy theories and statutes specifically directed at "material support" of terrorism or terrorist organizations. This Article explores the question of how close those prosecutions are coming to the forbidden line of intrusion on individual freedom. The ultimate issue is the extent to which Western liberal values of freedom can be preserved while engaging in a culture clash that itself threatens those very values.
I. CONSPIRACIES AND TERRORISM
A. World Trade Center I and the Embassy Bombings
Al Qaeda took center stage in U.S. terrorism concerns almost a decade before 9/11. The first bombing of the World Trade Center, carried out by a group in Brooklyn loosely affiliated with the mujahideen of Afghanistan, occurred in February 1993, and bombings of the U. …