At what point does speech which advocates violent jihad, murder and mayhem against Americans by Islamists cease being protected under the First Amendment?
It is our opinion that jihadist speech, which includes websites and other communications, needs to be evaluated in a historical and doctrinal context.
That context is that the “call to jihad,” or the advocacy of jihad, very often leads to jihad. In other words, there is an arguable cause and effect, or at least a high positive correlation. There is an argument that the call to jihad poses an imminent threat to life.
Osama bin Laden declared holy war against America, which was followed by the attacks on September 11th. Nidal Hasan responded to the advocacy of jihad and perpetrated the worst terrorist attack on American soil since 9/11. Each of the publicized foiled terror plots in the last four months was initiated by adherents to jihadist ideology.
As Henninger notes:
“First Amendment law has never dealt with a widely distributed ideology that has as its raison d’être the mass murder of Americans and destruction of American property.”
Well said. Because whether America likes it or not, at some point we are going to have to wrestle with how the First Amendment applies to jihadist speech. Choosing not to will simply mean more jihadists and more terror attacks.
By DANIEL HENNINGER
If it accomplished nothing else, the Obama administration’s announcement last Friday to try 9/11 mastermind Khalid Sheikh Mohammed in lower Manhattan blew the Nidal Hasan murders out of the news. The KSM fiasco deserves all the attention it gets. What Hasan represents, however, is a more immediate concern.
Khalid Sheikh Mohammed is an old-school jihadi. They sit in far-off redoubts, assembling terror teams of foreign nationals who now must figure out how to get themselves and their plot inside the U.S. Not impossible, but harder than before 9/11.
Hasan is new school. He is what’s known as a homegrown terrorist. Virtually all the Islamic terrorist plots thwarted in the U.S. in recent years were homegrown, not designed from afar by a KSM.
Najibullah Zazi, the Colorado airport-shuttle driver arrested in New York this September and charged with conspiring to detonate bombs, came to the U.S. in 1999.
The Fort Dix Six, convicted in December of conspiring to attack U.S. military personnel, were mainly ethnic Albanians whose family came to New Jersey in the 1980s.
Zakaria Amara, the leader of the Toronto 18, who were planning to blow up skyscrapers in Canada, was born in a Toronto suburb.
How do individuals sitting in Colorado, New Jersey, Toronto or Texas suddenly transform into mass murderers for jihad? Most of the time, they become radicalized by spending vast amounts of time viewing violent Islamic Web sites run from abroad.
Two years ago, Lawrence Sanchez of the New York City Police Department’s intelligence division told the Senate Homeland Security Committee that the Internet is “the most significant factor in the radicalization that is occurring in America.” Mr. Sanchez described this process as “self-imposed brainwashing.”
In New York Times reporter David Rohde’s account of his captivity by the Taliban, he wrote that “watching jihadi videos” was his guards’ favorite pastime. He describes them as “little more than grimly repetitive snuff films” of executions.
If you sit in the United States and watch this stuff ’round the clock—self-brainwashing—it is fully protected activity. It qualifies as “speech,” protected by the panoply of First Amendment law. These protections exist nowhere else in the world.
The biggest controversy surrounding Maj. Hasan is that the Army knew about his radical Islamic sympathies, from the Walter Reed lecture and the monitored emails to the English-speaking, American-born Yemeni imam Anwar Awlaki.
The argument is that the Army should have mustered him out of the service and thereby avoided the 13 murders. Really? After kicking him out of the Army, there was no probable cause for authorities to surveil a civilian Nidal Hasan. In time he as easily could have killed 13 Americans in a suburban Texas mall.
Former Attorney General Michael Mukasey, as the judge presiding over the 1995 trial of the “blind sheik,” Omar Abdel Rahman, for the 1993 World Trade Center bombing, had to instruct the jury that the sheik’s violent, “holy war” sermons at New York mosques were legal, protected activity (he was convicted of conspiracy). There is a mosque in Manhattan at 96th Street and Lexington Avenue, on whose sidewalk one can hear adherents spouting support for violence against the U.S. That, too, is protected.
A violent ideology is just an ideology, and that is protected speech. It requires acts to put in motion aggressive surveillance, such as wiretapping.
I think the Hasan case shows this is wrong, or at least too dangerous. First Amendment law has never dealt with a widely distributed ideology that has as its raison d’être the mass murder of Americans and destruction of American property.
For now this is the way it is: Future Hasans can get jacked up all day on kill-the-Americans Web sites, and we have to wait until they put in motion a conspiracy like Fort Dix or the Colorado jihadists. Or until they start shooting.
Politics is the only recourse.
This is what the political fight was through the Bush years—fights over the Patriot Act, warrantless wiretaps of conversations between U.S. citizens and foreign suspects, using the Swift financial data system to track terrorist transfers (or, with KSM, military tribunals versus civil courts). The argument against these policies was that “our values” require that judges review and approve virtually all such activity.
The problem with this view is that “our values” were already protected to an unprecedented degree. Raising the bar higher is asking too much of the people assigned to catch all these self-radicalizing jihadists.