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Judges, Journalists and Jihad By: Michael Tremoglie
FrontPageMagazine.com | Monday, June 28, 2004

The mainstream media have trumpeted the acquittal of Sami Omar Al-Hussayen as proof that the Patriot Act, John Ashcroft, and George Bush are trying to eradicate the Bill of Rights.

Quite the contrary, if anything, the Al-Hussayen case demonstrates the inherent problems of judicial and journalistic activism. The fact is the jury took several days to reach a verdict. They asked the judge for advice after they could not arrive at a verdict – and ultimately did not for all of the crimes with which Al-Hussayen was accused.

Al-Hussayen, a Saudi national, was charged with using the website of the Islamic Assembly of North America (IANA) to promote terrorism. Specifically, Al-Hussayen, was charged with two counts of conspiracy to support terrorism, one count of providing material support to terror groups and eleven counts of visa and immigration fraud.

Among the messages posted by Al-Hussayen to the websites were four fatwas – or religious edicts blessing suicide missions. One specifically mentioned a kamikaze type mission using an airplane. This was prior to 9-11.

According to US Attorney Kim Lindquist, as quoted in the Pittsburgh Tribune-Review, the websites were "part of his passionate, religious commitment to violent jihad – not to legitimate violence, but to suicide operations and to terrorism."

His defense was that he was merely the moderator and not concerned with the content of the messages, only posting them. It is important to note that the founder of IANA, Bassem K. Khafagi, already pled guilty to bank fraud and visa fraud in relation to his activities with IANA, which is believed to be financing terrorist activities.

One juror, John Steger a retired U.S. Forest Service worker, who was interviewed afterwards provided some insight as to why Al-Hussayen was acquitted. He referred to Judge Lodge's instruction - that the Constitution protects speech even if it advocates the use of force or violation of the law unless imminent lawlessness occurs - as influencing his choice.

Steger said ninety-five percent of what Al-Hussayen posted was "innocent" and said the "inflammatory" articles did not lead to an "imminent act. ... According to the First Amendment, that is all right." When he was asked if it could lead to a terrorist act, he said, "I don't know." [1]

The dilemma is Judge Lodge did not say what imminent means. Steger remarked, "What the First Amendment actually meant was more extensive than I thought…. I was surprised that people could say whatever they wanted."

This is problematic since people cannot say whatever they want. Free speech is not absolute. There are several famous Supreme Court cases about this. The most famous is Schenck v. U.S.. Ironically, this too involved a war – World War One. Schenck, a Socialist, was advocating draft resistance. He was arrested, indicted and convicted of sedition.

Schenck claimed he was engaged in free speech. The Supreme Court rejected this claim. It was this case that established the famous " clear and present danger " doctrine of prohibited speech. It was for this case that Justice Oliver Wendell Holmes wrote the famous phrase, "The most stringent protection of free speech would not protect a man from falsely shouting fire in a crowded theater."

More recent cases have established a rule between advocacy of a cause and the incitement of an action – for example, courts limiting protests near abortion clinics. Apparently, Lodge’s instructions did not make this distinction, at least not according to Steger. The question that needed clarification was if the repeated posting of messages, advocating murder and revolution, to a website constitute advocacy or incitement? Lodge did not provide such guidance to the jury.

The journalistic interpretations of the Constitution are as ideological as Judge Lodge’s are.

The Daytona Beach News-Journal editorial about the Al-Hussayen acquittal said, "When civil liberties give way to prejudice…. the case of Al-Hussayen…is a case against…the administration's war on liberties." An AP report also stated this case as rejecting President Bush’s efforts to eliminate the Bill of Rights. Both reports made it seem as if the administration is violating civil liberties.

Such tendentious reporting is unconscionable.

Is it any wonder that the National Association of Chiefs of Police 16th Annual Survey of Police Chiefs and Sheriffs revealed that 92.2 % of the 22,587 Chiefs of Police and Sheriffs in the United States surveyed answered no when asked, "Do you believe the media (TV, radio and print) are fair and impartial in reporting the news?”  It is a sad commentary about American journalism when ninety-two percent of this country’s law enforcement executives believe the media is biased against law enforcement!

The judge’s instructions to the Al-Huusayen jury, and the mainstream media’s liberal perspective of the verdict exemplify the obstacles liberals are establishing, making it more difficult to fight the Global War on Terror.

This augurs ill for homeland security. The people designated to preserve our lives, liberties, and pursuits are hindered by the politicization of national security by the self-anointed guardians of our civil liberties.

One can oppose the war against terrorism and laws against terrorism. However, when one demonizes those who favor the war, and those who favor laws against terrorist activities, and intentionally mischaracterizes those laws, then that person jeopardizes the lives of the true sentinels of our Bill of Rights and all innocent people everywhere.

Some of our judges and journalists seem to be sympathetic to the jihadists.

Michael P. Tremoglie is the author of the new novel A Sense of Duty, and an ex-Philadelphia cop. E-mail him at elfegobaca@comcast.net.

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