Al-Timimi: Unique Times

The case Ali Al-Timimi v. United States of America may not seem like a complex case, but the United States' judicial history is making the case more complex and may define our post 9/11 nation. Al-Timimi is charged with many things but the majority of the charges levied against him are concerned with conspiracy and levying war against the United States. Al-Timimi was convicted and is currently serving a life sentence. His lawyers are appealing, arguing his defense based on the landmark Brandenburg case. I would argue rather to uphold his conviction based on “bad tendency” and “clear and present danger,” instead of the infamous Brandenburg case. I believe that his speech should be punished and suppressed.

Concerning convicting Al-Timimi based on the reasoning behind the case Schenck v. United States, which introduced the clear and present danger test, but applied bad tendency, some argue that this case does not apply because the United States had not declared war on terrorism/Afghanistan. I disagree. Justice Holmes stated that, “But the character of every act depends upon the circumstances in which it is done...” In the Schenck case it happened to be war that made the circumstance unique at the time. Justice Holmes further explains the courts reasoning:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree.”

Justice Holmes last sentence is key. The United States had just experience the worst terrorist attacks in its history and the country was on the verge of declaring war. Al-Timimi statements were made soon after 9/11 and he aided, abetted, and counseled individuals to go and train to wage a “violent jihad” against the U.S.

9/11 created a unique environment, one that might even be labeled by Justice Holmes as unique. The world had witnessed the power of such speech and what can happen when left unchecked. This is not to say that all negative speech against the U.S. leads to the atrocities that occurred on 9/11. I think that the reasoning and justification of not protecting certain forms of speech clarified in the Schenck case, should be used sparingly, and furthermore, based upon Justice Holmes qualifications, probably would be. Philosophically, I think that the only philosopher that may agree with my reasoning would be Chafee. Although he disapproves of the remote bad tendency doctrine (which was used in covicting Schenck), he does approve “of some form of the clear-and-present-danger test.” He goes onto state:

“The test laid down by the United States Supreme Court in the Schenck case still holds good...”

Chafee then goes on to use the quotation of Justice Holmes used above. Chafee may not completely agree with my reasoning concerning the case against Al-Timimi, but he might agree with my interpretation of Justice Holmes qualifications for “unique times.”

Furthermore, Al-Timimi had moved beyond speech and was advocating action; action that his colleagues/ followers took by traveling to Pakistan for training. Training by a terrorist group that was linked to Al-Qaeda. He was advocating lawless action which is illegal. Furthermore, the Clinton administration established in 1999, that aiding, abetting, conspiring, and/funding Al-Qaeda was illegal.

“William J. Clinton declared it a national emergency to deal with the threat posed by Al Qaeda and the Taliban. In his
Executive Orde 13129, the President prohibited, among other things, the making or receiving of any contribution
of funds, goods, or services to or for the benefit of the Taliban.”

Al-Timimi had every intention of aiding, abetting, and if not participating himself, in action against the U.S. whether on U.S. territory or in another country. I would uphold his conviction, but I do not agree with his sentence.